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D,oiti«d b» Google
HARVARD LAW LIBRARY.
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DIGEST OF CASES C
THE INDIAN LAW REPORTS,
By the same Author.
DIGEST OF THE BOMBAY HIGH COURT REPORTS, Vols. I to 12 ; and
INDIAN LAW REPORTS, BOMBAY SERIES, Vols. 1 and a, Price Rs. 15.
To be had of the " Times of India," Bombay ;
Messrs- Thaoker, Spink & Co., Calcutta ; and
Messrs. Higginbotham & Co., Madras.
DIGEST OF ALL THE CASES RELATING TO INDIA DECIDED BY THE
PRIVY COUNCIL AND OTHER COURTS IN ENGLAND. Price Rs. ao.
To be had of the Superintendent, Education Society's Press, Byoulla;
The Manager, "Times of India," Bombay;
Messrs. Thaoker, Spink & Co., Calcutta ; and
Messrs. Higginbotham & Co., Madras.
Vol. IL— DIGEST op INDIAN LAW REPORTS and LAW REPORTS
INDDA.N APPEALS— Price Rs. ao.
To be had at the Education Society's Press, Byoulla.
Vol. III.— NOW IN THE PRESS. Orders are being registered at the
Education Society's Pmss, Bvculla.
PKINTED AND PUBLISHED AT THE
EDUCATION SOCIETY'S PRESS, BYCULLA.
1881.
D,gltlzed by G00gle
,.db,Google
DIGEST OF CASES
REPORTED IN
THE INDIAN LAW REPORTS,
CALCUTTA SERIES. Vols. 1 to 4; BOMBAY SERIES. Vols. 1 to 3:
ALLAHABAD SERIES. Vols. 1 & 2; MADRAS SERIES. Vols. I&2:
LAW REPORTS, INDIAN APPEALS,
VOLS. 1 TO 6.
COMPILED BT
REGINALD M. A. BRANSON,
OF TEE MIDDLE TEMPLE. BARRISTER-AT-LA.W.
VOL. I.
SECOND EDITION.
PRINTED AND PUBLISHED AT THE
EDUCATION SOCIETY'S PRESS, BYCULLA.
1884.
D,„i„.db»Googlc
C/U-. Aj^c- 7. H?°^7
D,„i„.db»Googlc
INDEX OF CASES.
Name of Case. ,
Volume and Page.
Column ol
Digest.
A.
Abadi Begam v. Asa Ram
I. L. R. II. All.
162
860
Abadi Begam v. Inam Begam
I. L. R.I. All.
521
951
Abasi v. Dunne
I. L. R. 1. All.
598
949
Abba Haji Ishmail v. Abba Thara
I. L. R. I. Bom.
£53
107
Abdool Ban v. Ramdass Coondoo
1. L. R. IV. Cal.
607
SO
Abdool Hamed, In rt
1. L. R. IV. Cal.
94
772
Abdool Aziz v. Wall Khan
1. L. R. 1. All.
838
G8
Abdul Karim v. Manji Hansraj
I. L R. I. Bom.
L. R. V. Ind. App.
295
116
865, 1062
)
Abdul Azeez v. Dorab Ally Khan ... ?
I. L. R. III. Cal.
II. Cal. Rep.
806
5*9
£ 1393
Abdul Rahim v. Racha Rai
I. L. R. I. All.
863
1289
Abdul Samad v. Rajindro Kishor Singh
i- L. R. 11. AIL
357
121
Abedonissa Kbatoon v. Ameeroonissa Khaloon ?
L.R. IV. Ind. App
I. L. R. II. Cal.
66
327
I 531
Abhassi Begum v. Moharanee Rajroop Koonwar
I. L. R. IV. CaL
33
1025
Ablakh Rai v. Udit Narain Rai
I. L. R. I. All.
853
1308
Ablakh Rai v. Salim Ahmad Khan
I. L. R. II. All.
43-
555
Abul Munsoor v. Abdool Hamid
I. L. R. II. Cal.
98
690
Adhiranee Narain Coomary v. Shona Malee Pat
Mahadai
I. L. R, I. Cal.
885
637
Administrator- General of Bengal (The) v. Jug-
geswar Roy
I. L. R. III. Call.
192
707
Administrator-General of Bengal v. Apcar
I. L. R. III. Cal.
553
1503
Administrator-General v. Hawkins
I. L R. 1. Mad.
287
1459
Adurmoni Deyi v. Chowdhry Sib Narain Kur ...
I. L. R. III. Cal.
1
1067
Advocate-General of Bengal v. Mayor of Lyons.
L. R. III. Ind. App
32
1512
Afatoola Sirdar v. Dwarka Natb Moitry . S
I. L. R. IV. Cal.
IV. Cal. Rep.
I. L. R. I. All.
814
95
| 179
Alzal-un-nissa v. Tej Ban..."
785
480
Agra Savings Bank, Limited, v. Sri Ram Mitter.
1. L. R. I. All.
388
35
Ahmed Bakhsh v. Gobindi
I. L. R. II. All.
216
1230
Ahmed Mahomed Pattel v. Adjen Dooply
I. L. R. II. Cal.
323
896
Ahmedabad Municipality v. Mahamad Jama! ...
1. L. R. III. Bom.
146
1442
Ahamudeen v. Grish Chunder Shamunt
I. L. R. IV. Cal.
350
336
Ajnasi Kuar v. Suraj Prasad
I. L. R. 1. All.
601
242
Akbar Khan v. Sheoratan
I. L. R. 1. All.
373
i 410
Akhe Ram v. Nand Kishore
1. L. R. 1. All.
236
134S
Akilandammal v. Periasami Pillai
1. L. R. I. Mad.
309
891
Ali Muhammad v. Lalta Bakhsh
I. L. R. I. AIL
655
1028
Ali Muhammad v. Taj Muhammad
1. L. R. 1. All.
283
1157
All Shah v. Hiisain Bakhsh
1. L. R. I. All.
EBB
1370
D,„i„.db»Googlc
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest.
AUumuddy v. Braham
I.L.R. IV.Cal.
140
Sfli
Altaf Ali v. Lalji Mai
1. L. R. 1. All.
518
976
Ahikfnonee Dabee v. Banee Madhub Cbucker.
butty
1. L. R. IV. CaL
677
1358
Ambika Dab v. Sukhmani Kuar
1. L-R.l. All.
437
857
Ameeroonissa Khatoon v. Abedoonissa Kha- C
l_ R. 11. Ind. Ap
. 87
J 949
toon ... 1
IV.
<W
Anakaran Kasmi v. Saidmadath Avulla
1. L. R. II. Mad.
79
1411
Anandaji Visram v. Tbc Nariad Spinning anc
Weaving Company
I. L. R. I. Bom.
320
86
Aiiandr.iv Bapuji v. Shekh Baba
1. L. R. II. Bom.
662
1274
An<in t Das v. Ashbumer and Co
I. L. R. I. All
287
319
Ananta v. Ramabai
1. L. R. (. Bom.
654
611
Annath Natb Deb v. Bistu Chunder Roy
I. L. R. IV. Cal.
783
484
Annapurnabai, In re ...
1. L R. 1. Bom.
630
373
Annoda Clium Roy v. Kally Coomar Roy
I. L. R. IV. Cal.
89
614
r
1. L. R. III. Cal.
767
1464
1. L. R. 1. Mad.
133
1416
Anonymous -I
Do.
Do.
55
305
351
379
i
Do.
G4
475
I
Do.
56
1496
An too Misree v. Bidhoomookhee
I. L. R. IV. Cal.
605
528
Apaji Bhivrav v. Shivlal Khubchand
I. L. R. III. Bom.
201
829, 1450
Apaji Chintaman Devdhar v. Gangabai
1. L. R. 11. Bom.
632
649, 1399
Apaya v.Rama ...
I. L. R. III. Bom.
210
750
Appasami v. Aghilanda ... ...
I. L. R. II. Mad.
113
875
Apu Budgavda v. Narhari Annajee
I. L. R. III. Bom.
21
819
Ardesir Nasarvanji v. Muse Natha Amiji
1. L: R. I. Bom.
601
191
Arfunnessa v. Peary Mohun Mookerjee...
1. L. R. I. Cal.
378
1063
Ashgar Ali v. Delroos Banoo Begum ...
I. L R. HI. Cal.
324
1078
Ashutosh Dutt v. Doorga Churn Chatterjee ...
L. R. VI. ind. App
182
686
Assamatbem Nessa Bibee v. Roy Lutchmeeput
Singh
1. L. R. IV.Cal.
142
941
Attorneys, In the matter of the Petition of the..
I. L. R. 1. Mad.
24
1334
Audh Kumari v. Chandra Dai
I. L. R. II. All.
561
620
Aumirtolall Bose v. Rajoneekant Mitter
L. R. II. Ind. App
113
72, 019, 620, 868
Aurokiam, In the matter of
B.
Babaji v. Nana
I. L. R. II. Mad.
38
360
1. L R. I. Bom. 535, n.
417
Babaji and Nanaji v. Narayan
I. L. R. III. Bom.
340
307,981,1141,1394
Babaji Hari v. Raj a ram Ballal
I. L. R. I. Bom.
75
1092, 1108
Babaji Lakshmaii v. Vasudev Vinayek
I. L. R. 1. Bom.
95
674
Babaji Mabadaji v. Ktishnaji Devji
I. L. R. II. Bom.
606
BOO
Baban Mayacha v. Nagu Shravucha
I. L. R. 11. Bom.
19
773, 1252, 1801
Baboo Doorga Pershad v. Mussumat Kundun
Koowar
I.. R. I. Ind. App.
55
658
t
L. R. I. Ind. App.
317
i
Baboo Lekraj Roy v. Kanbya Singh ... <
1. L. R. III. CaL.
810
> 135,587
(
L. R. IV. Ind. App
£33
)
D,„i„.db»Googlc
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest.
Babshetti v. Venkataiamana
I. L. R. III. Bom.
154
980,1407
Badan Bebajea v. Kala Chand Bebajea
I. L. R. IV. Cal.
8'2S
536
Badri Prasad v. Muhammad Yusuf
I. L. R. I. All.
381
246
Bhana Nahana v. Parbhu Hari
I. L. R. 11. Bom.
67
604
Bai Mahkor v. Bulakhi Chaku
I. L. R. I. Bom.
G38
112, 416, 730, 1280
Baij Nath v. Mahabir
1. L R. I, All.
SOS
621
Baijoo Lall, /» the mailer of the Petition of ...
1. L. R. I. Cal.
450
877
Baijun Doobey v.Brij Bhookun Lall Awusti .{
I. I.. R. I. Cal.
L. R. 11. Ind. App.
133
275
(mo
BakhatRamv.WazirAli
I. L. R. I. AIL
448
63
Balaji Baikaji Pinge v. Gopal bin Raghu
Kuli
I. L.R. III. Bom.
S3
475
Baldeo Das v. Sham Lai
I. L. R. !. All.
77
673
Baldeo Pandey v. Gokul Rai
I. L.R. I. All.
003
742
Baldeo Sahai v. Bateshar Singh
1. L. R. 1. All.
76
1257
Balkrishna v. Lakshman
I. L. R. III. Bom.
219
171.
Balkrishna Bhalcbandra v. Gopal Raghunath...
1. L. R. I. Bom.
73
632
Balkrishna Trimback Tendulkar v. Savitribai...
I. L. R. III. Bom.
54
661
Ball v. Stowell
I. L. R. 11. All.
322
873
Ballabh Das v. Sundar Das
1. L. R. 1. All.
429
614
Balwant Singh v. Gokaran Prasad
l.L. R. I. All.
433
1347
Bam v. Survey Commissioner and Collector of
Ratnagiri
1. L. R III. Bom.
134
470
Banapa V. Sundardas Jagjivandas
1. L. R I. Bom.
333
504
Bank of Hindustan, China, and Japan v.
Shoroshibala Debee
I. L. R. II. Cal.
311
1013
Bannoo v. KasseeRam
1. L. R. III. Cal.
315
678
Bapuji Apaji v. Senavaraji Marvadi
I. L. R. 11. Bom.
2S1
1339
Barkat-ul-lah Khan v. Rennie ... n.
I.LR.L All.
17
1370
Basant Ram v, Kolahal
I. L. R I. All.
392
1181
BasantRaiv. Kanauji Lai
I. L. R. 11. All.
455
1023
Basapa v. Maraya
1. L. R 111. Bom.
433
917
Basawa and Gurbasawa v. Kalkapa, Shaibana,
and Sidoji
I. L. R 11. Bom.
489
1228
Basappa bin Malappa Aki v. Dundayabin Shiv-
lingaya
I. L. R. 11. Bom.
640
1300
Basapa bin Murtiapav. Lakshmanapa bin Mare-
tamapa
I. L. R. I. Bom.
624
192
Bazayet Hosseinv. DooliChund_
1. L. R, IV. Cal.
402
052
Beresfoid v. Hurst
1. L. R 1. All.
77B
907
Behari Lai v. Salik Ram
I. L. R. I. All.
875
908
Behary Lall Sandyal v. Juggomohun Gossain ...
I. L. R. IV. Cal.
1
1176
Bejoy Chunder Banerjee v. Kally Prosonno
Mookerjee
I. L. R. IV. Cal.
827
569
Bemolasoondury Cbowdhrain v. Punchanun
Chowdhry
1. L. R. HI. Cal.
705
204,1266
Beresford v. Hurst
I. L. R. I. All.
772
907
Bhagirath v. Naubat Singh
I. L. R. 11. All.
115
1006
Bhagirthibai v. Radhabai
I. L. R. III. Bom.
208
585
Bhagvandas Kishordas v. Abdul Husein Maho
med AH
1. L. R. HI. Bom.
49
164,1414
D,„i„.db»Googlc
INDEX OF CASfiS.
Name of Case.
Volume and Page.
Column of Digest.
Bbagavan Dullabh v. Kala Shankar ... *;'■ ...
I. L. R. L Bom.
641
685
Bhagbutti Deyiv. Bholanath Thakoot ... \
1. L. R. I. Cal.
L. R. 11. Ind. App.
10*
250
| 602
Bhago Bibee v. Ram Kant Roy Chowdhry
l.L.R-l.CaL
£93
1887
Bhagvan Chunder Dass v. Sudder Ally... i
I. L. R. IV. CaL
II. Cal. Rep.
41
857
\ 18S
Bhagwandas Kishordas v. Abdul Husein Maho
medAIi
I. L. R, III. Bom,
49
168
Bhagvan Singh v. Murli Singh
1. L. R. 1. All.
459
63
Bhagwanti v. Rudr Man Tiwarj
1. L. R. II. All.
14S
54
Bhala Nahanav. ParbhuHari
I. L. R. II. Bom.
67
591
Bhaskarappa v. The Collector of North Kanara..
1. L. R- III. Bom.
152
804
Bhawan Mulji v. Kavasji Jahangir Jasawala anc
Perosha Merwanji
I. L. R. II. Bom.
643
731
Bhawani v. Mahtab Kuar
I. L. R. II. All.
171
611
Bhawani Kuar y. Rikni Ram
I. L. R. II. All.
354
872
Bheeka Lall v. Bhuggoo Lall
I. L. R. III. Cal.
23
1284
Bheknarain Singh v. janok Singh
I. L. R. II. CaL
438
1066
Bhichuk Singh v. Nagcshar Nath
I. L. R. 11. All
HE
36
Bhikaji Sabaji v. Bapu Sajn
I. L. R. I. Bom.
650
280 *
Bhikam Das v. Pura
I. L. R. II. All.
141
694
Bbikhan Khan v. Ratan Kuar .,
I. L. R. I. AIL
512
55,68
Bhimul Doss v. Choonee Lall ...
I. L. R. II. CaL
879
628
Bhola Nath v. Baldeo
I. L. R. 11. All.
196
1232,1887
Bhoobuneshwar Dutt, In the matter of
I. L.R.III. Cal.
621
1097
Bhoobun Chunder Sen v. Ram Soonder Surma
Mozoomdar
I.L. R. III. Cal.
300
1887
Bhoobun Mohun Debya v. Hurrisb Chunder J
I. L. R. IV. Cal.
23
)
Chowdhry t
L. R. V. Ind. App.
138
$ 57°
Bhugeeruth Berah v. Moneeram Banerjee
I. L. R. IV. CaL
855
1365
Bhuggobutty Dossee v. Shamachurn Bose
1. L. R. I. Cal.
837
1395
Bhupal v. Jag Ram
I. L. R. 11. All.
449
1022
Bhyrub Chunder Bundopadhya v. Soudamin
Dabee
I. L. R. 11. Cal.
141
1344
Bhyrub Chunder v. Golab Coomary
1. L. R. III. Cal.
517
113
Biddomoye Dabee Dabee v. Sittaram... J
I. L. R. IV. Cal.
III. Cal. Rep.
497
398
I 325
Bijai Ram v. Kallu
I. L. R. I. All.
692
889
Binda Prasad v. Ahmad Ali ...
I. L. R. I. All.
368
527
Binda Prasad v. Madho Prasad
I L. R. II. AH.
129
426
Birchunder Manickya v. Hurrisb Chunder
Dass
I. L R. III. Cal.
383
760, 1259
Bishan Dial v. Manni Ram
1. L. R. i. All.
297
1014
Bishan Chand v. Ahmad Khan
1. L. R. I. AH.
263
860
Bisheshar Singh v. Sugundhi
I.L.R. I. All.
380
66
Bisheswari Debya v. Govind Persad Tewari ...
L.R III. Ind. App
194
1113
Bish Nath, In the matter of the Petition of ...
I. L. 11. I. All.
318
1S34
Bissessur Lall Sahoo v. Maharajah Luchmessur
Singh
L. R. VI. Ind. App
233
534,675
Bittan, In the matter of...
I. L. R II. Cal.
357
672
Bollye Satu v. Akram Ally [
1. L. R. IV. Cal.
961
1310
Di,iii,.db»Goo<^le
INDEX OF CASES.
Bombay Burmah Trading Corporation, Limit. ^
ctf, v. Mirza Mahomed Ally and The £
Burmah Company, Limited J
Bonomali Bajadui v. Ko y 1 ash Ch under Mozoom-
dar
Bonomalee Nag v. Koylash Chunder Day
Boonjad Mathoor v. Nathoo Shahoo...
Boydonath Bag v. Grish Chunder Roy
Boyle Chund Singh v. Maulard
Brammoye Dassee v. Kristo Mohun Mookerjee
Brijnath Dass v. juggernath Dass
Brij Indar Bahadur Singh v. Ranee Janki \
Koer. — Lai Shunkur Box v. Ranee Janki >
Koer.— Lai Setla Bus v. Ranee Janki Koer )
Brindabun Chunder Dey Chowdhry v. Brindabun
Chunder Sircar Chowdhry
Brojender Coomar v. Bromomoye Cbowdhrain...
Brojendro Coomar Ray v. Rakbal Chunder Roy.
Brojo^ishore Singh v. Bharrut Sing Mohaputter
Buogseedhur Khettry, In the natter of ...
Bunwaree Lall Sahoo v. Mohabeer Proshad J
Burmah Trading Corporation, Limited, v
Mirza Mahomed Ally Sherazee and Thf
Burmah Company, Limited
Bussun Lall Shoofeul v. C\undee Dass
Byjaath Lall v. Raniooden Chowdhry ... j
Byraddi Subbareddi v. D&sappa Rau .,-,
Carvalho v. Nurbibi
Cassum Jooma v. Thucker Liladhar Kessowje
Chadami Lai v. Muhammad Baktish ...
Chamaili Knar v. Rain Prasad
Chamaili Rani v. Ram Dai
Cham pabaty v. Bib i Jibun
Chandu v. Chathu Nambiar
Chatur Jagsi v. Tulsi
Chemminikara Muppil Nair v. Kiliyanat Ukona
Menon ...
Chedambara Chetty v. Renga Krishna Muthut
Vira Puchaiya Naicker \
Chidambaram Chettiar v. Gouri Nachiar. 5
Chin Hong & Co. v. Seng Moh & Co. ... 5
Chinna Nagayya v. Pedda Nagayya
ChinnaSnbbaraya Mndali v. Kundaswami Reddi
Volume and Page.
Column of Digest.
L. R. V. Ind. App.
130
•1160
. L. R. IV. Cal.
ne
1. L. R. IV. Cal.
186
811
I. L. R. IV. Cal.
69:
1S1
. L. R. HI. CaL
875
118
1. L. R. III. Cal.
26
3S7
L L. R- IV. CaL
B72
97,1468
. L. R. II. Cal.
222
1263
I. L. R. IV. Cal.
712
1029
L. R. V. Ind. App
1
\«
I. Cal. Rep.
318
L.R.I. Ind. App.
178
1200
1. I_ R. IV. Cal.
885
1415
I. L. R. III. Cal.
791
862
I. L. R. IV. Cal.
968
1437
LL.R-II.Cal.
359
73a
L. R. I. Ind. App.
89
I *
XII. Beng. L, R.
29
I. L R. IV. Cal.
116
J 896
L. R. V. Ind. App.
130
I. L. R. IV. Cal.
686
1260
L. R. 1. Ind. App.
106
j
XXI. W. R.
233
1 1007
I. L. R. I. Mad.
103
141
I. L. R. III. Bom.
202
842,480,744
I. L. R. II. Bom.
570
1403
I. L. R. I. All.
5B3
1153
I. L R. II. AIL
267
601
I. L. R. I. All.
552
316
I. L. R. IV Cal.
213
1115
I. L. R. I. Mad.
381
411
I.L.R. II. Bom.
230
835
I. L. R. I. Mad.
88
959
L. R. 1. Ind. App.
241
)
XIII. Beng. L. R.
509
> 226
XXU. W. R-
148
S
I. L. R. 11. Mad.
83
I 660
L. R. VI. Ind. App
177
I. L. R. IV. Cal.
736
\ 190
III. Cal. Rep.
585
I. L. R. I. Mad.
62
584
I. L. R. 1. Mad
5
731
Di,iii,.db»Goo<^le
INDEX OF CASES.
Name of Case.
Chinna Ummayi v. Tesgarai Chetti
Chinnimarigadu, In the matter of
Chinto Abaji Kulkarni v. Lakshroibai kom
Sakharam Antaji
Chinto Joshi v. Krishnaji Narayan
Chokalingapesfaana Naicker v. Achiyar...
Cbotay Lall v. Chunnoo Lall
Chova Kara v. ba bin Khalifa
Cbowdry Chintamun Sing v. Mussamut
Nnwlukho Konwari
Cbowdhri Murtaza H ossein v. Mussamut Bibi
Chummun Shah, In the natter of
Chunder Caunt Mookerjee v. Jodoonath Khan
Chunder Coomar Roy *. Bhogobutly Prosonno
Roy ...
Chunder Mohun Roy v. Bhubon Mohini Dabea.
Chunder Narain v. Farquharson
Chunder Nath Sen, In the matter of the Petition
«f
Chunder Nath Chowdhry v. TirthanundThakooi
Chunder Sekhur Mookerjee v. The Collector of
Midnapore
Chunni v. Thakur Das
Chunia v. Ram Dial
Cbunilal Sobharam v. Purbhudas Kursandas
Chuttenlharee Lall v. Rambelashee Koer
Cohen v. Cassim Nana
CollectorofMoradabadv.MuhammadDainiKhan
Collector of Sea Customs v. Punniar Chitham-
Collector of Thana v. Bat Patel
Collector of Thana v. Dadabhai Bomar.ji
Collector of Trichinopoly v. Lekkamani
Collins v. Maula Baksh ...
Collis v. Manohar Das
Coringa Oil Company v. Koegler
Corporation of Calcutta v. Bheecunrarn Napit...
Crosthwaite v. Hamilton
Court of Wards v. Gaya Prasad
Cowasjee Nanabhoy v. Lallbboy Vullubhoy J
D.
D. R. Bam v. The Survey Commissioner and
the Collector of Rat nagiri
Daia Chand v. Sarfraz
Daia Chand v. Sarfraz Ali
Dalip Singh v. Durga Prasad
Volume and Page,
I. L. R. I. Mad.
168
702
I. L. R. 1. Mad.
£89
362
1. L. R. II. Bom
875
416
I. L. R. III. Bom.
214
IIS
I. L. R. I. Mad
40
408
I. L. R.IV. Cal.
L R IV. lnd. App
744
15
I 620,752
1. L. R I. Bom.
209
1480
L. R. II. Ind. App.
286
149, en .
L. R. III. Ind. App.
209
149
I. LR.IU.CtL
II. Cal. Rep.
766
317
f 371,509
I. L. R III. Cal.
468
1465
I. L. R III. Cal.
235
909
I.LR. II. Cal.
889
880
I. L. R IV. Cal.
887
881
I. L. R. II. Cal.
293
1421
I. L. R. III. Cal.
604
895
1. L. R, III. Cal.
464
1410
I. L. R I. All.
126
1016
[. L. R 1. AIL
360
345,848
I. L R. II. Bom.
560
260
I. L.R. Ill.Cal.
318
1876
LLRI. Cal.
2B4
395
I. L. R. II. All.
198
1164
1. L. R. I. Mad.
I. 1- R 11. Bom.
89
110
28, 770, 1272
1301
LLRI. Bom.
852
195,845
L. R. I.lnd.App.282,293
632,1118
I. L. R. II. All.
2S4
535
1. L. R. I. All.
7*5
120
I. L.R.I. CaL
406
819
I. L. R. II. Cal.
290
576
I. L. R. 1. All.
87
1102
I. L R. II. All.
107
10S4, 1344
L. R. III. hid. App
200
?28i
I. L. R. I. Bom.
408
1. L. R. III. Bom.
134
476
1. L. R I. All.
117
16
(. L. R. I. All.
425
17
I. L. R 1. AIL
442
1280
Di,iii,.db»Goo<^le
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest.
Dalpatbhai Bhagubhai v. Amarsang Khema
Bhai
1. L. R. 11. Bom.
553
855, 261
c
L. R. III. Ind. App
102
i
Damodhar Gordhan v. Deoram Kanji ... <
I. L. R. I. Bom.
3157
{ 224
(
L. R App. Ca.
33^
3
Damodnr Parsotam v. Ishvar Jetha ..
I. L. R. HI. Bom.
89
203
Darbbha Venkamma v. Rama Subbarayadu
I. L. R. I. Mad.
387
1121
Darbo v. Kesho Rai
I. L. R. II. All.
35(1
237
Darshan Singh v. Hanmanta
1. L. R. I. All.
274
1280
Daudaha v. Ismalsha
I. L. R. III. Bom.
72
789
Dayal Jairaj v. Jivraj Ratansi
I. L. R. I. Bom.
237
478
Dayal Mistree v. Kupoorchand
I. L. R. IV. Cal.
818
799
Debendronath Mullick v. Odit Churn Mullick...
I. L. R III. Cal.
890
132G
Debi Dutt Sahoo v, Subodra Bibee
I. L. R 11. Cal.
283
1026
Debi Prasad v. Thakur Dial
1. L. R I. All,
105
618
Debi Singh v. Bhup Singh
I. L. R. I. All.
709
1116
Deen Doyal Lall *. Het Narain Singh
I. L. R. 11. Cal.
41
741
Deendyal Lai v. Jugdeep Narain Singh... J
L. R. IV. Ind. App.
I. L. R. III. Cal.
247
198
I 672
Deen Doyal Poramanick v. Kylas Chunder Pa:
Cbowdhry
I. L. R I. CaL
92
743
Delhi and London Bank, Limited, v. Orchard, j
L. R IV. Ind. App.
I.L.R. HI. Cal.
127
47
( 304,879, 1252,1439
Delhi and London Bank v. Wordie
I. L. R. I Cal.
249
1261
Denobundhoo Cbowdhry v. Kristomonee Dossee.
I. L. R. II. Cal.
152
1014
Deojit v. Pitambar
I.LRI. All.
275
1014
c
L. R. III. Ind. App
102
1
Deoram Kanji v. Damodhar Gordhan ... 7
L. R. I. App. Ca.
332
> 221
(
I. L. R. 1. Bom.
367
)
Desputty Singh, tn the matter of the Petition
of
I. L. R. II. Cal
208
1177
DessaiKallianraijiHekoomutraiji v. Maharana t
L. R. 1. Ind. App.
34
)
Fattehsangjijaswatsangji \
H. C. R. X. Bom.
281
> 1461
Dcvrav Krishna v, Halambhai
I. L. R I. Bom.
87
1352
Dhanjibhai Bomanji Gujrat v. Navazbai
I. L. R 11.' Bom.
75
39, 68, 608, 966
Dhondu Gurav v. Gangabai
1. L. R. III. Bom.
309
Q29
Dhonender Chunder Mookerjee v. Mutty Lai
Mookerjee
L. R II. Ind. App.
18
1198
Dhonessur Kooer v. Roy Gooder Sahoy
I. L. R. II. Cal.
83 H
909
Dhuronidhur Sen v. The Agra Bank, Limited ...
1. L. R. IV. Cal.
380
678
Dijahur Dutt, In the matter of the Petition of ...
I. L. R. IV. Cal.
647
362
Dildhar Hossein v. Mujeedunnissa
I. L. R. IV. CaL
629
241
Dinanath Abaji v%Sadashiv Hari Mad have
1. L. R. III. Bom.
a
1329
Dirgaj Singh v. Debi Singh
1. L. R I. All.
499
182
Doolar Cl.and Sahoo v. Lalla Bisheshur Dyal ...
L. R. VI. Ind. App.
47
Doolar Chand Sahoo v. Lalla Chabeel Chand ...
L.R. VI. Ind App
47
> 530
Dooli Chand v. Syud Bazayet Hossein
L. R. V. Ind. App.
211
952
Doorga Persad Singh v. Doorga Konwari <
L. R. V. Ind. App.
1. L. R IV. Cal.
190
190
) 410,616
Doorga Prosbad Mytse v. Joynarain Hazra ...
1. L. R IV. Cal.
96
330
Doorga Ptoshad Mytee v. Joynarain Hazrah ...
I. L. R 11. Cal.
474
474
Di,iii,.db»Goo<^le
INDEX OF CASES.
Name oE Case.
Volume and Page.
Column of Digest.
Dorab Ally Khan v. The Executors of Khajah f
Moheeooddeen t
I. L. R. 111. Cal.
80ft
?I392
L. R. V. Ind. App.
11H
Dorab Ally Khan v. Abdool Azeez
1. L. R. IV. Cal.
££9
1214, 1393
Dorab Ally Khan v. Khajah Moheeoodeen
1. L. R. 1. Cal.
6S
1392
Doss Money Dossee v. Jonmenjoy MulUck
1. L R.I11. Cal
8R3
1205
Dubey Sahai v. Ganeshi Lall
I. L. R. I. All.
84
1457
(
[. L. R. IV. Cal.
649
Dukharam Bharli v. Luchman Bharti ... i
IV. Cal. Rep.
49
i 218
Dular Chand v. Balram Das
1. L. R. 1. All.
468
108*
Dulsook Rattanchand v. Cliugan Narrun
I. L. R. II. Bom.
156
90S
Durga Prasad v. Asa Ram
I. L. R. II. All.
18b
874
Durga Prasad v. Nawazish All
I. L. R. I. All.
591
98
Durga Prasad v. Khairati
1. L. R. I. All.
645
1S8
Dwarka Das v. Husain Bakhsh
I. L. R. I. All.
56*
1152
Dwarka Natli Misser v. Hurrish Ch under
I. L. R. IV. Cal.
925
1809
Dwarkanath By sack v. Burroda Persaud Bysack
I. L. R. IV. Cal.
448
1507
Dyebukee Nundun Sen v. MadhooMutly Goopla
E.
East India Railway Company v. The Bengal
1. L. K. I. Cal.
123
1402
Coal Company ...
I. L. R. I. Cal.
95
1488
Ebrahim v. Fuckhrunnissa Begum
I. L. R. IV. Cal.
531
830
Ede v. Kanto Nath Shaw
1. L. R. 111. Cal.
820
95
Eidanv. Mazhar Husain... ...
I. L. R. I. All.
*S3
915
Ekram Mundul v. Hobdhur Pal
I. L. R. III. Cal.
271
474, 1260
Elahi Buksh v. Marachow j
I. L. R. IV. Cal.
ML'."
)
III. Cal. Rep.
593
J 120
Ellem v. Basheer
I. L. R. I. Cal.
1N4
1287
1, L. R. IV. Cal.
m
Elliott, In the Goods of 1
II. Cal. Rep.
4SH
I 453
Empress v. Abdool Karim ... ,„ J
I. L. R, IV. Cal.
III. Cal. Rep.
10
81
I i, 144S
Empress v. Abul Hasan
I. L. R, 1. All.
4<>7
1098
Empress v. Acharjys
1. L. R. I. Mad.
884
1100
I. L. R. IV. Cal.
6li3
1
Empress v. Achiraj Lall ... J
III. Cal. Rep.
87
f 355
Empress v. Ambigara Hulagu
I. L. R. I. Mad.
lf>3
499
Empress v. A miruddeen
1. L. R. III. Cal.
41 :
1099
Empress v. Ashgar Ali
I. L. R. II. All.
200
49B
Empress v. Ashootosh Chuckerbutty
I. L. R. IV. Cal.
488
498
Empress v. Baidanath Das
I. L. R. III. Cal.
is
359
Empress v. Baldeo Sahai
I. L. R. II. All.
25a
165, 1148
Empress v. Banni
I. L. R. II. All.
849
334
Empress v. Bhawani
I. L. R. 1. All.
0B4
499
Empress v. Bhup Singh
I. L. R. II. All.
570
1295
Empress v. Budh Singh
I.LR. II. All.
101
37S, 385
Empress v. Brojonath Dey
I. L. R. II. Cal.
425
173
Empress v. Burah
I. L. R. IV. Cal.
172
824,825
Empress v. Burah
I. L. R. III. Cal.
63
823
Empress v. Butlo Kristo Doss
I. L. R. III. Cal.
497
1189
Empress v. Cham Nayiak
I. L. R. 11.- Cal.
354
385
Di,iii,.db»Goo<^le
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest.
Empress v. ChatUr Stngh
I. L. R. II. All.
83
1086
Empress v. Darba
I. L. R. I. All.
461
370
Empress v. Dedar Sircar
I. L- R. II. Cal.
S84
1377
Empress v. Dharam Das
I. L. R. I. All-
0B5
700
Empress v. Diljour Misser
I. L. R. II. Cal.
225
1054, 1294
Empress v. Donnelly
I. L. R. II. Cal.
495
886,606
Empress v. Dononjoy Broj ...
I. L. R. HI. Cal.
540
376
Empress v. Dossaji Gulam Husein
I. L. R. III. Bom.
834
1064
Empress v. DwarkanathtChowdhry
I. L. R. II. CaL
39«
906, 1414
Empress v. Pox ...
I. L.R.II. All.
ht.
1100,1491
Empress v. Putteh Jyab Khan.
I. L. R. IV. Cal.
I7U
778
Empress v Gangadhar Bhunjo
I. L. R. III. Cal.
622
1181
Empress v. Gauraj ...
I. L. R. II. All.
444
498
Empress v. Halodhur Poroe
I. L. R. II. Cal.
883
1099
Empress v. Harai Mirdha and Umed Sardar ..
I. L. R. III. Cal.
1B9
3li0
Empress v. Hary Doyal Karmokar
1. L. R. IV. Cal.
10
1294
Empress v. Hematulla.
I. L. R. III. Cal.
389
338
Empress v. I rad Ally
I. L. R. IV. Cal.
8fi9
1370
Empress v. Jogessur Mochi
I. L. R. III. Cal.
SBC
E69
Empress v. Joy Hari Kor
I. L, R. II- Cal.
851!
932
Empress v. JudbonathGangooly...
I. L.R. II. Cal.
273
WO
Empress v. JyadulU
I. L. R. II. Cal.
48(5
130
Empress v. Kampta Prasad
1. L.R.I. All.
53(
1097
Empress v. Kanchan Singh
1. L. R. I. All.
413
13SS
Empress v. Karan Singh,
I. L, R. I. All.
BBC
1147
Empress v. Karim Bakhsh
I. L. R. II. All.
38(1
196
Empress v. Kasbi
1. L. R. II. All.
4*7
3SS
Empress v. Kashmiri Lai
1. L. R. I. All.
625
379
Empress v. Ketabdi Mundul
1. L. R. IV. CaL
7H4
388
Empress v. Kudratoollah
I.L. R. III. Cal.
495
359
Empress v. Lach man Singh ...
I. L. R. II. All.
398
779
Empress v. Lalai ...
1. L.R. II. All.
301
1108
Empress v. Mahindra Lai
I.L. R. I. All.
688
700
Empress v. Malka
I. L. R. 11. Bom.
648
355
Empress v. Manyu
1. L.R.II. All.
8+0
131
Empress v. Mannoo Tamovlee ...
I. L. R. IV. Cal.
oeo
501
Empress v. Megha ...
1. L. R. I. All.
837
1096
Empress v. Miyaji Ahmed
1. L. R. III. Bom.
IPO
307
Empress v, Mohim Chunder Rai...
I. L. R. III. Cal.
765
14B8
Empress v. Mohindra Lai
I. L. R. I. All.
638
701
Empress v. Mula
1. L. R- II. All.
105
545
Empress v. Mulna
I.L. R. I. All
59H
1055
Empress v. The Municipal Corporation of (he
Town of Calcutta
I. L.R. Ill.Cal.
758
1035
Empress v. Murli
I. L.R. II. All.
33h
809
Empress v. Nadua
1. L. R. II. All.
53
352
Empress v. Nipcha
I. L. R. IV. Cal.
71L
357
Empress v. Nilambar Babu
I. L. R. II. All.
27 (
8B9, 374, 781
Empress v. Nobin Chunder Dutt
I. L. R. IV. Cal.
BfM
380
Empress v. Nurul Huq . ...
I. L. R. III. Cal.
757
12IO
Empress v. Partab
1. 1. R. 1. All
(161
1495
Di,iii,.db»Goo<^le
INDEX OF CASES.
Nunc of Cue.
Volume and Page.
Column of Digest.
Empress v. Projonath Dey
I. L. R. 11. Cal.
428
178
Empress v. Rajcoomar Singh
I. L.R. Ill.Cal.
678
878. 798, 1483
Empress v. Raguha
1. L. R. II. All.
SSI
380
Empress v. Ramanyiya
1- L.R.II. Mad.
B
40,856,609
Empress v. Ram C hand
I.LR.I. All.
675
498
Empress v. Ram Adhin ...
I. L. R. II. All,
189
1056
Empress v. Rama Qirapa...
I.L R. III. Bom.
11
487, 60S
Empress v. RamesbarRai
1. L. R. I. AM.
I7B
in
Empress v. Sabsukh
I. L, R. II. All.
833
1371
Empress v. Safatulla
I. L. R. IV. Cal.
815
1101
Empress v. Sahao Rae
I. L. R. III. Cal.
nas
861,571
Empress v. Salik ...
I. L. R.I. All.
587
10B8
Empress v> Sarmukb Singh
1. L.R. 11. All.
218
867,1058
Empress v. Sashi Bhusan Chuckrabutty
I. L. R. IV. Cal,
683
305
Empress v. Seymour
I. L. R. I. All.
630
700
Empress v. Sukhari
1. L.R. 11. All.
405
880
Empress v. Thacoor Dyal Singh
1. L.R. III. Cal.
820
381
Empress v. Thompson
I. L. R. II- AH.
say
268
Empress v. Troylukho Nath Chowdhry
I. L. R. IV. Cal,
Bill
S
Empress v, Tsit Ooe
I.L. R. IV. Cal.
607
778
Empress v. Umsadbaksh
I. L.R.I1I. Bom.
178
790
Eravanni Revivarman v. Iltapu Revivarman ...
1. L. R. I. Mad.
158
HO
Eshan ChunderRoy. v. Monmohini Dassi
I. LR. IV. Cal.
Q3B
1580
P.
Fakharoodeen Mahomed Ashan v. Porjoso
I. L. R. IV. CaL
20D
BBS
Fakir Muhammad v. Gholam Husain
I.L. R.I. All.
909
Fakir Muhammad v. Tirumala Caarriar
1. L. R. 1. Mad.
BOS
1308
Farzand Ali v. Alim-ul-lah
I. L. R. I. All.
273
1148
Fateh Singh v. Sanwal Singh ...
I. L. R. I. All.
761
828
Fatima Begam v. Sakina Begam
1. L. R. I. All.
51
769
Fazal Haq v. MahaChand
1. U R. 1. All.
557
1324
Fazal Muhammad v. Phul Kuar
I. L. R. II. AIL
192
827
Feda Hossein, In the matter of the Petition of
I. L. R. I. Cal.
481
6a
Fehrsen v. Simpson
1. L R. IV. Cal.
614
ISOfi
Fernandez (D.) v. R. Alves
I. L. R. III. Bom.
882
714
Fleming v. Koegler
I.LR. IV. Cal.
237
826.
Fleming Spinning and Weaving Company
(Limited), In re ...
I. L. R. III. Bom.
29a
882
Forbes (C. H. B.) and others v. Tullockchand
Manockchand and Shapurji Burjorji
1. L. R. III. Bom.
38H
816
Foresterv. Secretary of State for India in.
I. L. R. III. Cal.
101
| 745
Council \
L. R. IV. Ind. App. 187
Fowle v. Fowle
I. UR.IV.Cal.
260
453
Framji Bezanji Dastur v. Hormasji Pestanj
1. L. R- II. Bom.
256
13B8
Fuckurodeen Mahomed Ashan v. Mohima
Chunder Chowdhry ...
I. L R- IV. Cal.
529
895
Furzund Hossein v. Janu Bibee ,
I. L. R. IV. CaL
588
844,1277
Futeek Paroee v. Mohender Nath Mozoomdar...
I. L. R. 1. Cal.
3S&
342, 3U4
nHt Google
INDEX OF CASES.
Name o[ Case.
Volume and Page.
Column of Digest.
G.
Gabriel v. Mordakai
I. L. R. I. Cal.
148
714
Gadgeppa Desai v. Apaji Jivanrav
I. L. R. III. Bom.
237
832
Gajadhur Pershad v. The Two Widows of
Emam Ali Beg ...
L. R. II. Ind. App
520
1188
Gajapathi Nilamani v. Gajapathi Radhamani j
I. L. R. 1. Mad. 290
L. R. IV. Ind App. 212
J 030
Ganendro Mohun Tagore v. Rajah juttendro
Mohun Tagore
L. R. I. Ind. App.
387
1509
Ganga Bai v. Sita Ram
I. L. R. I. All.
170
641
Gangadhar Shivkaran v. The Collector of Ah-
mednagar
I. L. R. I. Bom.
028
196,780
Gangajati v. Ghasita
I. L. R. I. All.
48
610
Ganga Prasad v. Kusyari Din ...
I. L. R. I. All.
611
1070
Gangs Ram v. Bansi ...
I. L. R. II. All.
431
1237
Ganpat Pandurangv. Adarji Dadabhai
I. L. R. III. Bom.
812
160 ■
Ganpal Pataya v. The Collector of Kanara ...
I. L. R, I. Bom.
7
251
Ganpat Rai v. Sarupi
I. L. R. I. All.
440
1029
Ganpatgir Guru Bholagir v. Ganpatgit
I. L. R- III. Bom.
230
415
Gasper, In the Goods of
I. L. R. III. Cal.
733
847
Gauri v. Chandramani ...
I. L. R. I. All.
262
075
Gauri Dat v. Gur Sahai
I. L. R. II. All.
41
1444
Gauri Shankar v. Mumtaz Ali Khan
I. L R. II. All.
411
696
Gaya Prasad v. Bhup Singh
I. L. R. I. All.
180
234
Gehanji Kes Patil v. Ganpati Lakshman
1. L R. II. Bom.
464
1324
Ghasi Ram v. Nuraj Begam
I. L. R. I. All.
81
827
Ghazi v. Kadir Bakhsh
I. L. R. I. All.
212
1343
Girdharee Lall v. Kantoo Lall
L. R. I. Ind. App,
S21
595
Girdhari Singh v. Hurdeo Narain Singh
L.R. III. Ind. App
230
1357
Girdhari v. Sheoraj
I. L. R. I. Ali.
431
770
Gladstone, In the Goads of ...
I. L. R. I. Cal.
168
1179
Gobind Chunder Koondoo v. Tamck Chunder
Bose
I. L. R. III. Cal.
146
12«4
Gobind Prasad, In the matter of lie Petition of.
I. L.R. 11. All.
465
380
Gobind Ram Marwary v, Mathoora Sabooya ...
I. L. R. III. Cal.
839
890
Goculdas Jagmohandas and The National
Financial Company (Limited) v. Lakh mi das
Khimji and others
I.L. R. III. Bom.
402
230
Gogon Manjy v. Hashish wary Deby
I. L. R. III. Cal.
4SI8
1436
Golabdas v. Lakshman Narhar
I. L. R. III. Bom.
221
917
Golabolee v. Kootosboollah Sircar.
I. L. R. IV. Cal.
E27
176
Golap Chand Marwaree v. Thakurani Mohokoom
Kooaree
I, L. R. UI.CaL
341
497
Golokemoney Dabia v. Mohesh Chunder Mosa.
I. L. R. HI. Cal.
547
178
Goluck Chunder Masanta v. Nundo Coomar Roy.
1. 1. R. IV. Cal.
699
409
Golucknath Misser v. Lalia Prem Lai
I. L. R. III. Cal.
307
973
Goma Mahad Patil v. Gokaldas Khimji and
Tapidas Khimji
I. L. R. III. Bom.
74
834
Goodrich v. Venkanna
1. L. R. II. Mad.
104
936
Gopat v. Nanku
1. L. R. I. All.
246
537
Gopal Narayan v. Trimbak Sadashiv
I. L. R. I. Bom.
267
1227
,.db,Google
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest
Gopal Narhar Safray v. Hanmant Ganesl
Safray and Ganesh Kamchandra Safray
I. L.R. III. Bom.
273
E85,
607,622,777 •
Gopal Singh v. Dnlar Kuar ...
I. L. R. II. All.
352
121
Gopee Mohun Mozoomdar v. Hitls
I. L. R. III. Cal.
789
1273
Gopee Nath Dobey v. Roy Luchmeeput Singl
Bahadur
I. L. R. III. Cal.
542
1848
Gopi Wasudev Bbat v. Marfcande Narayan Bhat
1. L. R. III. Bom.
30
lOOfi
Gordhan Pema v. Kasandas Balmukundas
1. L. R. 111. Bom.
179
203
Goshain Girdhariji v. Durga Devi
I. LR. II. All.
119
145
Gossain Dass Ch under v. Issur Ch under Nath
I. L.R. IILCal.
2S4
409
Gosto Behary Pal v. Johur Lai] Pal
1. L.R.IV. Cal.
836
1140
Gouree Lall Singh v. Joodhisteer Hajrah
I. LR. 1. Cal.
359
184
Gouri Shunker v. Maharajah of Bulrampore J
I. L. R. IV. Cat. 639
L. R. VL Ind. App, 1
45
43
Gourmonee Debla v. Krishna Chunder Sannyal
I. L. R. IV. Cal.
397
483
Govind Raghunath v. Govinda Jagojl
I. L R. I. Bom.
600
662,
1313
Govind Vaman v. Sakharam Ramchandra
I. L. R. III. Bom.
42
488,
529
Govindan v. K anna ran
I. L. R. I. Mad.
351
961
Greender Chunder Ghose v. Mackintosh
I. L R. IV- Cal.
897
884
Groom v. Wilson
I. L R. III. Cal.
539
271
Gujar v. Barve
I. L R. II. Bom.
873
900
Gulab Dai v. Jiwan Ram
I.LR. II. All.
318
233
Gulabdas Jugjivandas v. The Collector of,
I.. R. VI. Ind. App
51
Surat i
I. L. R. III. Bom.
186
{ 56S
Gulabdas v. Lakshman Narhar
I. L. R. III. Bom.
221
917
Gulab Singh v. Amar Singh
I.LR. II. All.
237
917
Gulab Singh v. Lachman Das
1. L. R. I. All.
748
120
Gulzari Mai v. Jadaun Rai
I. L.R. II. All.
t!3
345
Gulzari Lai v. The Collector of Bareilly
I. L. R. I. All.
596
251
Gumani v. Ram Charan
I.LR I. All.
555
985
Gumna Dambershet v. Bhiku
1. L. R. I. Bom.
125
876
Gungapersad v. Gogun Singh ...
I. L. R. III. Cal.
322
454
Guni Mahomed v. Moran
I. L. R. IV. Cal.
96
336
Gunnoo Singh v. Latafut Hossein
I. L. R. III. Cal.
836
102O
Gunpat Narain Singh, In the matter of
I. L. R. I. Cal.
74
728
Guracharya v. Svamirayacharya
1. L R. III. Bom.
431
213
Gur Dayal, In the matter of the Petition of ...
1. L. R. II. All.
205
305,
1378
Guru Shidgavda bin Rudragavda v. Rudragav-
date kom Dyamangavda
I. L. R. I. Bom.
631
1105
Hadjee AMooteh, In the matter of the Petition of.
I. L R. II. Cal.
131
>
Hadjee Abdoollah v. Meer Reasut Hossein ...
L. R. I. Ind. App.
72
£ 1145.
28B
Hadjee Abdoollah v. Reasut Hossein
L.R. III. I»d. App
221
S
Haidri Bai v. The East India Railway Company.
I. L. R. I. AH.
087
1376
Haji Esmail Hajee Sidick v. Shamjee Poonjani.
I. L. R. II. Bom.
550
737
Haji Hasan Ibrahim v. Mancharam Kaliandas...
I. L. R. III. Bom.
137
1256
Haji Jakaria v. Haji Casim
I. L. R. 1. Bom.
■196
735
Hamid Ali v. Imtiazan
1. L. R. II. All.
71
£41
Hamir Singh v. Zakia
I. L. R. I. All.
57
!i50
Hanmantmal Motichand v. Ramabhai
1. L. R. III. Bom.
198
888
b, Google
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest.
Haimman Prasad v. Kauleshar Pandey
I. L. R.I. All.
801
472
Hannroan Tiwari v. Oiirai
I. L. R. II. All.
164
58U
Har Sahai Mai v. Maharaj Singh
1. L. R. II. All.
294
1273
Harasatoollah, In the matter of, v. Brojonath
Ghose
1. L R. III. Cal.
729
1350
Hatbhaj v. Gumani
1. L. R. 11. All.
493
1470
Hirdeo, In Ike matter of
I. L. R. I. All.
1SS
3U5
Hardeo Das v. Hukum Singh
I. L. R. 11. All
820
200
Haribhat v. Damodarbhat
I. L.R. Hi. Bom.
171
iiI9
Harris v. Harris
I. L. R. I. Cal.
285
695
Harshankar Parshad, In the matter of the Peti-
tion of
I. L. R. I. Cal.
178
1421
Harsukh v. Meghraj ...
I. L. R. 11. All.
345
4.'4
Hasam Shah v. Gopal Bai ...
I. L. R. 11. All.
428
1*73
Hasan Ali v. Mehdi Husain
I. L. R. I. All.
533
958
Hasan Ali v. Naga Mai
1. L. R. I. All.
288
588
Hasoon Arra Begum v. Jawadoonuissa Satooda
Khandan
I. L. R. IV. Cal.
ay
250
Hear n v. Bapu Saju Naikin
I. L. R. 1. Bom,
605
894
Heera Lall Pramanick v. Barikunnissa Bibee ...
1. L. R. III. Cal.
501
1067
Heeralall Rukhit v. Ram Surun Lall
1. L. R. IV. Cal.
835
735
Heera Lall Mookhopadya v. Dhunput Singh ...
I. L. R. IV. Cal.
500
791
Hera Chunder Chunder v. Prankristo Chunder...
I. L. R. I. Cal.
403
1210
Hem Latta v. Shreedone Borooa
1. L. R. III. Cal.
771
217
Hemnath Dutt v. Ashgur Sindhur
I. L. R, IV. Cal.
894
543
Hemendro Coomar Hullick v. Rajendrolall
Moonshee
I. L. R. III. Cal.
353
755
Hendry v. Mutty Lall Dhur
I. L. R. 11. Cal.
395
1359
HewSOQ, In ike Goods of
I. L. R. IV. Cal.
770
70
Hinde v. Baudry
1. L. R. II. Mad.
13
42
Hingan Khan v. Ganga Prasad
I. L. R. I. All.
293
1148
Hira Chand v. Adbal
I. L. R. I. All.
153
332
Hira Lall v. Ganesh Prasad
1- L.R. II. All.
455
1*88
Hirdy Narain v. Syed Allaoollah
1. L. R. IV. Cal.
72
143
Hirji Jina v. Naran Mulji
1. L. R. I. Bom.
1
9
Honamma v. Timanbtiat
I. L. R. 1. Bom.
55(1
611, 044
Horro Narain v. Shoodha Kristo Berah
I. L. R. IV. Cal.
890
132S
Howard v. Wilson
I. L. R. IV. Cal.
231
127, 1171
Hukumchand v. Hiralal
I. L. R. HI. Bom.
159
505
Hurpurshad v. Sheo Dyal
L. R. III. Ind. App
253
891, 757, 1076
Hurrish Chunder Roy v. The Collector of Jessore
1. UR. III. Cal.
712
179
Hunodurga Chowdhrani ». Sharrat Soondery
Dabea
I. L. R. IV. Cal.
074
530
Hunogobind Raha v. Rararutno Dey
I. L. R. IV. CaL
87
221
Hurronath Bhunjo v. Chunni Lall Ghose
I. L. R. IV. Cal.
877
911
Hurronath Roy v, Gobirid Chunder Dutt
L. R. II. Ind. App.
193
4,71
Hurropersaud Roy Chowdhry v. Shamaper- r
saud Roy Chowdhry .,- \
L. R. V. Ind. App.
31
) _
I. L. R. III. Cal.
654
\ ™3
Hurro Proshad Roy v. Gopaul Diss Dutt
I. L. R. III. Cal.
817
sea
Hurro Soondery Chowderain, la the matter of
the Petition of
I. L. R. IV. CaL
IS
987, 1077
nHt Google
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest.
Hurry Doss Bonnerjee, In the Goods of...
I. L. R. IV. Cat
87
69
Harrymohun Shaha v. Shonatun Shaha
I. L. R. I. Cal.
275
629
Hursahai Singh v. Syud Loot! Ali Khan
L. R. Il.Ind. App.
28
1214
Horst v. The Mussoorie Bank
I. L. R. I. All.
762
967
Husiin Bakhsh v. Madge
I. L. R. I. All.
625
DM
Hasain Shah v Gopal Rai
1. L. R. I. All.
428
908
Hasaini Bibi i. Mohsin Khan
I. L. R. I. All.
126
117, 148
Hjda Aliv. Jafar Ali
L
llahi Bakhsh v. Imam Bakhsh
I. L. R. I. Cat
188
179
I. L. R. I. AH.
384
235
Imam Ali v. Dasaundhi Ram
I. L. R. I. All.
608
906
Imbichi Koya v. Kakunnat Upakki
I. L. R. I. Mad.
891
246
Imperatrix v. Baban Khan walad Mhaskoji
I. L. R. 11. Bom.
142
231
Imperatrix v. Bhawani bin Panduji and Sakha
. ram bin Khundoji
I. L. R. II. Bom.
625
300
imperatrix v. Dongaji Andaji
I. L. R. II. Bom.
504
3
Imperatrix v. Gowdapa bin Venkugowda
I. L. R. II. Bom.
634
1298
Imperatrix v Hari Ganu
I. L. R. II. Bom.
628
130
Imperatrix v. Khimchand Narayan
I, L. R. III. Bom.
384
197
Imperatrix v. Lakshman Sakharam, Vaman
Hari, and Balaji Krishna
I. L. R. II. Bom.
481
276,1372
Imperatrix v. Malka
I. L.R.II. Bom.
643
356
Imperatrix v. Padamanabha Pa!
I. L. R II. Bom.
S84
1872
Imperatrix v. Pitamber Jina
L L. R. II. Bom.
01
467
In re Abdool Hamid
I. L. R. IV Cal.
94
772
In re Annapurnabai
I. L. R. I. Bom.
630
373
In re Empress v. Mannoo Tamoolee
I. L. R. IV. Cal.
696
501
/nr<r]agjivan Nanabhai
I. L. R. I. Bom.
82
537
In re Keshav Lakshman
I. L. R. I. Bom.
175
284
In re Murray
1. L. R. III. Cat
S(
733
In re Muse AH Adam
I. L. R. II. Bom.
653
857
In re The Fleming Spinning and Weaving
Company (Limited)
I. L. R III. Bom.
299
282
In re Tukaram Vithal
I. L. R. II. Bom.
527
190
In the floods ■>/ Elliott
I. L. R. IV. Cal.
IOC
453
In ths Goods oj Gasper
I. L. R. III. Cal.
7S0
317
In the Goods ff/ Gladstone fc Son
I. L. R. I Cat
168
1179
In the Goods of Hewson
I. L. R. IV. Cal.
770
70
Inthe Goodsof Hurry Doss Bonerjee and Sree-
mutty Gungamony
I. L. R. IV. Cal.
87
69
In the Goods 0/ J. White
I.LR. IV. Cat
682
1177
In the Goads o/Murch
I. L. R. IV. Cal.
725
69
In Ike Goods of Roy money Dossee
1. L. R. I. Cal.
150
166
In the Goods of Rushton ...
I. L. R- HI. Cal.
736
347
In the Goods o/Shamchurn Mullick
I. L. R. I. Cat
52
1176
In the Goods 0/ Sir John Wemyss
I. L. R. IV. Cat
721
1177
In the Goods o/ Wilson
I. L. R. 1 Cat
149
715
In the matter of
I. L. R. I. Mad.
305
379
In the mailer o/Act XVIII. of 1869 and of The
Uncovenanted Service Bank
I L. R. IV. Cal.
829
1416
Di,iii,.db»Goo<^le
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest
In the matter o/Abdool Hamed
I. L. R. IV. Cal.
94
772
In the matter of Bish Nath
I. L. R. I. All.
318
1239
In the matter of B'UX&n
I. L-R.lI.Ca1.
357
S72
In the matter c/Chinamarigada
I. L. R. I. Mad.
289
862
In the matter p/Cliumman Shah
I. L. R. III. Cal.
756
871,503
In the matter of Doyal Mistree v. Kupooi
Chund
I. L. R. IV. Cal.
818
759
In tie matter of Harden
1. L. R. I. All.
139
S65
In the matter of Hanihankar Prasad
I. L. R. 1. All.
178
142*
In the matter of Mathra Prasad
I. L. R. I. All.
200
1420
In the matter of PurGOOram Boroah ...
I. L. R. II. Cal.
117
353
In Ike matter ef Rukmin
I. L. R. I. All.
387
119
In the matter of The Empress v. Abdool Kur.
reem
I. L. R. IV. Cal.
10
6,1140
In the matter of The Empress v. Futteh Jyab
Khan
1. L. R. IV. Cal.
570
778
In the matter of The New Fleming Spinning
and Weaving Company (Limited)
I. LR. III. Bom.
489
282,1125
In the matter of Umhica Nundun Biswas
1. L. R, III. CaL
134
788
In the matter of the Petition of Chunder Narain
v. Farquharson ...
I. L. R. IV. Cal.
837
384
/■ the matter of the Petition o/Desputty Sing..
I. L. R. II. Cal.
280
1177
In the matter of the Petition of Dijahur Dutt ...
I. L. R. IV. CI.
647
362
In the matter of the Petition of Gur Daya!
I. L. R. II. All.
205
305, 1373
In the matter of the Petition of Hurro Sounder;
Chowdhrain
I.LR. IV. Cal.
20
987, 1077
In the matter of the Petition o/Jotharam Davay
I. L. R. II. Mad.
30
677, 689,1168
/a the matter of the Petition of Kanund Narain.
I. LR.IV.CaV
650
383
In the matter of the Petition of Mackenzie v
Shere Bahadoor Sahi
I. L. R. IV. Cat.
378
381
In the matter of the Petition of Modun Mohun..
1. L. R. IV. Cal.
370
1095
In the matter of the Petition o/Mohesh Chunder
Khan
I. L R. IV. Cal.
417
383
In the matter of the Petition o/Milo
1. L. R. 11. All.
299
283
/■ (** matter of the Petition of Narain Das ...
I. L. R. I. All.
610
157
In the matter of the Petition of Nursey Kessow.
i«
I. L. R. III. Bom.
270
1330
In the matter of the Petition o/Oodovchurri
Miner
I. L. R. IV. Cal.
ill
214
In the matter of the Petition of Ratansi Kalianj
and six others
I. L. R. II. Bom.
148
270
In the matter of the Petition of Rukmin
I. L R. I. All.
287
119
la the matter of the Petition of Shibo Prosad
Pandah
I. L. R. IV. Cal.
124
411
In the matter of ike Petition o/Soorja Kan
Achraj Chowdhry
I. L R. I. Cal.
383
1S8, 1420
In the matter of the Petition of Sabba Attala ..
I. L. R. 1. Mad.
304
. 130
/■ ike matter of the Petition and Schedule of Var
dulaCharri
1. L. R. 11. Mad.
15
734
In tie matter of The Sarawak and Hindustan
Banking and Trading Company (Limited) ..
I. L. R. IV. Cal.
704
Z83
D,„i„.db»Googlc
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest.
In the matter of the WillofC. M. Hunter
1. L. R. IV. Cal.
4S0
1606
Inayat Khan v. Rahmat Bibi
1. L. R. II. All.
97
1267
Irvine v. The Union Bank of Australia ... j
1. L R. ill. Cal.
L. R. IV. Ind. App
880
86
J 1128
Ishwardas Culabchand v. The G. I. P. Ry
Company ...
1. L. R. III. Bom.
IS)
UM
Issunee Dassce v. Abdool Khalak
1. L. R. IV. Cal.
415
904
Ittapu Revivarman v. Eravanni Revivarman
J.
Jadu Dass v. Sutherland
I. L. R. 1. Mad.
163
960
I. L. R. IV. Cal.
659
337
Jadu Lai v. Ram Gholam...
1. L. R.I. All.
311
12f!7
Jagan Nath v. Lalman
I. L. R.I. All.
861
118
Jagan Nath Panday v. Prag Singh
I. L. R. II. All.
515
1S7H
Jageshar Singh v. Jawahir Singh
I. L. R. I. All.
311
1157
jagesri Kuar v. Ram Nath Bhagat
I. L. R. I. All.
871
410
Jagjivan Nanabhai, In re
1. L. R. 1. Bom.
80
537
Jagjivan Nanabhai v. Shridhar Balkrishna
Nagarkar
I. L. R. II. Bom.
252
1027
Jai Shankar v. Tetley
I. L. R. I. All.
58t
907
Jaikisondas Gopaldas v. Harkissondas Hullo.
chandas and Muthuradas Purshotamdas
I.L. R. II. Bom.
9
843, ess
Jallidar Singh v. Ram Lai
1. L. R. IV. Cal.
723
600
Jamal walad Ahmed v. Jamal walad Jallal
I. L. R. I. Bom.
633
788
jamna v. Machul Sahu
1, I.. R. II. All.
315
050
Jamnadaa v. Lalitaram
1. L R. II. Bom.
294
913,1104
jamnadas Shankarlal and Vrijbhuknan Shan
karlat v. Atmaram Harjiwan ...
I. L. R. 11. Bom.
133
964
Jan Muhammad v. Ilahi Bakhsh
1. L. R. I. All.
390
249
Janokee Debea v Gopaul Acharjea
1. L. R. II. Cal.
305
664, 1141
Janokey Nath Roy, In the matter of the Petition
of
I. L. R. II. Cal.
466
1158
Janokinath Mookerjee v. Ramrunjun Chucker
butty
1. L. R. IV. Cal.
349
985
Jardine, Skinner, & Co. v. Rani Surat Soondar
Dcbi
L. R. V. Ind, App
164
1309
Javati Ramasami v. Sathambakam Theruven
gadasami
1. L. R. I. Mad.
340
771
Jawahir Lai v. Narain Das
I. I- R. I. All.
644
914
Jeoni v. Bhagwan Sahai
1. L. R. I. All.
HI
240
Jibhai Mahipati v. Parbhu Bapu
1. L- R. I. Bom.
902
Jiviv. Ramji
1. L. R. 111. Bom.
207
638
Jiwan Baksh v. Imtiaz Begam
I. L. R. IL All.
93
947
jiwan Singh v. Sarnam Singh
I. L. R. I. All.
97
884
Jodoo Lai Mullick v. Kali Kishen Tagore
L. R. VL Ind. App
190
1331
jogendro Mullick Nauth v. Sreemutty Nitto-
kissoree Dosaee
L. R. V. Ind. App.
I.L. R. III. CaL
55
639
Jogesh Cbunder Dutt v. Kali Chum Dutt ".
SO
991
Jogeshar Singh v. Jawahir Singh
I. L. R. I. Alt.
911
1167
Johurra Bibee v. Sreegopal Misser
I. L. R. I. Cal.
470
643
Joshi v, Joshi
I. L. R. II Bom.
660
1002
D,„i„.db»Googlc
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest
Jotharam Davay, In the matter of the Petition of.
joli Bhimrao v. Balu
1. L. R. 11. Mad.
I. L. R. 1. Bom.
30
209
677, 6S9, 1168
2,982
1. L. R. IV. Cal
434
) „,.
Joy Narain Giri v. Girish Chunder. Myti ... i
1. L. R. V. Ind. A.
888
f 660
Joykislo Cowar v. Nittyannund Nundy
1. L.R-III. Cal.
738
262,807
I
L. R. IV. Ind. App
147
J 673
Jugdeep Narain Singh v. Deendyal Lai ...<
I. L. R. III. Cal.
10B
Juggernauth Doss v. Brijnath Doss
1. L. R. IV. Cal.
322
743,844,1460
juggernath Sahoo Sheosahoy Sahoo v. Syud
Shah Mahomed H ossein
LR. II. Ind. App.
48
866
Juggobundhoo Shaba v. Promothonath Roy
I, L.R. IV. Cal.
767
761
Juggut Chunder Chuckerbutty, In the matter of.
I. L. R. II. Cal.
110
862
Juggut Narain Singh v. The Collector of Man-
I. L. R. IV. Cal.
413
618
Jugmohun Haldarv. Sarodamoyee Dossee
I. L. R. 111. CaL
149
856,666
jumoona Dassya v. Bamasoondari Dassya
I. L. R. 1. Cal.
289
)
Jumoona Dassya Chowdrani v. Bama sounder a
> 586, 1SS7
Dassya Chowdrani
L. R. III. Ind. Ap.
72
)
I. L. R. I. Cal.
163
I 877
Juneswar Dass v. Mahabeer Singh -.
L. R. 111. Ind. App
1
E.
Kabir walad Ram j an v. Mahadu walad Shiwajj.
I. L. R. II. Bom.
360
1388
Kachubhai v. Krishnabhai ...
1. L. R. II. Bom.
635
604,1140
Kadir Baksh v. llahi Bakifa
I. L. R. 11. All.
233
63S
Kadumbinee Dosseev. Koylash Kamince Dossee
I. L. R. 11. Cal.
431
1436
Kaleshar Prasad v. Jagan Nath ...
I. L. R. I. All.
650
236
Kali Charan Rai v. Ajudhia Rai
1. L. R. II. All.
14S
180
Kali Kishen Tagore v. Jodoo Lall Mullick
L.R.VI. Ind. App
190
1381
Kali Kishore Roy v. Dbununjoy Roy
I.L. R. III. Cal.
886
113, 899
Kali Prasad v. Ram Charan
I. L. R. I. All.
159
655
Kalian Das v. Nawal Singh
1. L.R.I.A11.
620
122, 777
Kalian Das v. Tika Ram... .-
I. L.R. II. All.
137
B7
Kaliprosad Rai v. Meher Chandro Roy
I. L. R. IV. Cal.
■AT.
1405
Kalipiosonno Ghosev. Kamini Soonduri Chow-
drain
I. L. R. IV. Cal.
475
1008
Kallapa v. Venkatesh Vinayak
1. L_ R- II. Bom.
676
249
Kally Prosonno Ghose v. Gocool Chunder Mitter
I. L. R. II. Cal.
295
5S9
Kally Prosonno Hazra v. Heera Lall Mundle ■■
I. L. R. 11. Cal.
168
886
Kalo Nilkanth v. Lakshmibai
I. L. R. II. Bom.
637
877
Kalova kom Bhujangrav v. Padapa walad Bhu
jangrav
I. L. R. I. Bom.
84S
918
Kalu bin Bhiwaji v. Visbram Mawaji
I. L. R. I. Bom.
543
781, 1285
Kamal Singh v. Batul Fatima
I. L. R. II. All.
460
1469
Kamalam v. Sadagopasarat
1. L. R. I. Mad.
860
897
Kamayya v. Leman
1. L. R. II. Mad.
3"
768
Kanahi Ram v. Biddya Ram
I. L. R. I. All.
64
932
Kanahia v. Ram. Kishen
1. L. R. II. AH.
42
772
Kanahia Lall v. Kali Din
I. L. R. II- All.
88
1222
Kanchan Singh v. Sheo Paraad
Kdtigal Chandra Ruj v. Kanya Ull Ruj
zedbyGOOgle
INDEX OF CASES.
Kanhaiya Lai v. Domingo
KanthiRamv.BankeyL.il
Kantoo Lall v. Gintharee Lall ...
Kantoo Lall v. Muddun Thakoor
Karam All V. Halima
Karan Singh v. Ram Lai .,
Karim v. Muhammad Kadsr
Karim Bakhsh v. Budha
Kartick Chunder Sett; v. Gopaulkisto Paulit
Kasturbai v. Sbivajiratn Devkurna
Kavasji Nartabhai v. Lallubhoy Vullabhoy
Keltic v. Fraser
Kennellyv. Wyman
Keshava v. Keshava .,.
Keshao Lukshimon, In re ..
Keval Ruber v. The Talukdari Settlement Officer
Khajah Ahsanoollah v. Kajee Aftabooddeen
Khajah Ashanoollah v. Ramdhonc Bhuttacharj.
Khajooroonissa v. Rowshan Jehan
Khando Narayan Kulkarni v. Apaji Sadashiv
Kulkarni
Khandas Dulabdas v. Tarachand Omarchand ...
Kherodemoney Dossee v. Doorgamoney Dossee.
Kheta Mai v. Chuni Ul
Khoblall Baboo v. Ram Chunder Bose
Khoob Lall v. Jungle Singh
KhubChandv. Kalian Das
- Khuggender Narain Chowdhry v. Sharupgir
Oghorenath ... ... ... t
Kinmond v. Jackson
Kirath Chand v. Ganesh Prasad
Kirtee Chunder Mitter v. Struthers
Kishen Gopaul Mawar v. Barnes
Ko Byaw v. Moung Shoay Att
Koeglerv. Prosonno Coomar Chalterjee
Koegler v. The Coringa Oil Company
Komollochun Dutt v. Nilruttun Mundle
Konwar Doorganath Roy v. Ram Chunder Sen)
Kooer Gujraj Singh v. Runjeet Singh
Koonj Behary Chowdhry v. Gocool Chunder
Chowdhry
Koonjo Mohun Dass v. Noho Coomar Shaba ..
Koylash Chunder Dass v. Boykoonto Nath
Chundra
Koylash Chunder Paul Chowdhry v. Preonath
Roy Chowdhry
Krisha Behari Roy v. Brojeswari Chowdranee.J
Krishna Kishore Shahav. Bireshur Mozoomdar
Krishna Mohun Bose v. Okhilmoni Dossee
I. L. R. 1. All. J
I. L. R. II. All. i
L. R. 1. hid. App. i
L. R. I. lad. App. f
I. L, R. I. All. (
I. L. R. II. All.
I. L. R. II. Mad.
I. L. R. 1, All. !
I. L. R.HI.CaL i
I. L. R. III. Bom. I
I. L. R. I. Bom. •
I. L. R. ll.Cel. <
I. L R. I. Cal. ]
I. L. R. II. Mad.
I. L.R. l.Bom. ]
I. L. R.I. Bom. t
I. L. R. IV. Cal. (
I. L. R. I. Cal. I
I. L. R. II. Cal. I
I. L. R. II. Bom. i
I. L. R. I. Bom. i
I. L R. IV. Cal. <
1. L. R. H All. 1
I. L. R. II. Cal. *
I. L. R. III. Cal. !
l.L. R. I. All. 1
I.L.R. IV- Cal. t
I. L. R. lit Cal.
I. b. R. II. All. f
I. L. R. II. Cal. i
I. L. R. II. Cal. S
L. R. III. Irjd. App.
I. L. R. II. Cal. 4
I. L. R. I. Cal.
I. L. R. IV. Cal. }
I. LR. II. Cal. I
L. R. IV. Ind. App.
L.R. I. Ind. App.
I. L R. III. Cal. 619
I. L. R. IV. Cal.
L. R. II. Ind. App.
L R. I. Cal.
I. L. R. IV. Cal.
I. L. R, III. Cal.
mo
1485
IBM
778
OSS, 644, 651
J 1257
1*01
.., Google
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest
Krishnaji Ravji Godbole v. Raraachandra Sa-
dashiv
I. L. R. I. Bom.
70
787
Krislmama v. Krishnasami
1. L. R- II. Mad.
82
455
Krishnaieddi Govindareddi v. Stuart
I.LRI. Mad
m
H
Krishnarav v. Govind
I. L.-R. II. Bom.
25
275
Kristo lndvo Saba v. Huromonee Dassee
L. R. L Ind. App.
84
1145
Kudomee Dossee v.Jotteeram Kotita
I. L. R. III. Cal.
B05
612
Kulo Nilkanth v. Lakshmlbai
I. L. R. II. Bora.
637
877
Kumarasami Nadan v. Palanagappa Chetti ...
I. L. R. I. Mad.
985
651
Kiimood Narain Bhoop v. Purna Chunder Roy.
I; L. R, IV. Cal.
647
.788
Kuaund Narain Bhoop, In the matter of the
Petition of
I. L. R. IV. Cal.
650
883
Kunhi Moidin Kutti v. Ramen Unni
I. L. R. I. Mad.
203
B7
Kuray Mai v. Puran Mai
I. L. R. II. All.
585
1084
Kuvarji v. Moti Haridas ...
I.LR. HI. Bom.
£3
843
Kuvcrji Tulsidas v. The G. I. P. Railway Com.
p»ny
L.
Lachnian Bibi v. Patni Ram
I. L. R. III. Bom.
104
1204
I. L. R. I. All.
510
5SS
Lachman Rai v. Akbar Khan ...
I.LR.I. AIL
410
m
Lacbman Singh v. Mohan
I. L. R. II. All.
497
128
Lachman Singh v. Sanwal Singh
I. L. R. I. All.
543
235
Lachmi Narain v. Rajah Partap Singh
I. L. R. II. All.
1
221
Lachmi Narain Lai. v. Shevambar Lai
I. L. R. II. All.
409
878
Lachmi Narain v. Wilayti Begam
I. L. R. 11. All.
433
682
Laidley v. Gunness Chunder Sahoo
I. L. R. IV. Cal.
438
1306
Lackmidas Vithaldas v. Ibrahim Oosman
I. L. R. II. Bom.
644
113
Lakshman Ramchandra Josbi v. Satyabhamabai.
I.LR. II. Bom.
494
641, 648, 1038
Lakshman Dada Naik v. Ramachandra Dada
Nailt
I. L. R. I. Bom.
561
497, 655, 686
Laksbmibai v. Shridhar Vasudev Takle
1. L. R. III. Bom.
1
615
Lakhmi Chand v. Tori Lai
1. L. R. I. All.
618
817
Lai Das v. Nekunjo Bhaiihiani
I. L. R. IV. CaL
874
961
Lata v. Hira Singh
I. L.R. II. All.
49
219, 819
Lall Sahoo v. Deo Narain Singh.
I. L. R. III. Cal.
781
174
LallaChoonee Lall v. Munnoo Lall
L, R. I. Ind. App.
144
482—1143
LalU Gopee Chand, In the matter of tht Petition
»f
I. L. R, 11. CaL
128
62
Lalla Jogeshur Sahoy v. Mussumat Phoolbas
Koonwur
L R. III. Ind. App.
7
598,1144
Lalla Kali Prasad v. Buli Singh
I. L. R. IV. CaL
780
980
Lalla Nowhut Lall v. LalU Jewan UII
US. IV. CaL
831
951
Lallab Barroomul v. The Official Liquidator ..
I. L. R. IV. Cal.
704
283
Lallah Ramesshur Doyal Singh v. Latlah Bissen
Doyal
I. L. R. I. Cal.
406
894
Lallbhoy Vullubhoy v. Cowasjee Nanabhay ..
L. R. III. Ind. App
200
286
Lallnbhai Bapubhai v. Mankuvarbai
I. L. R. II. Bom.
888
539, 809, 631
Lallu Ganesh v. Ranchhod Kahandas
I. L R. II. Bom.
641
256
Lalubhai Snrchand v. Bat Amrit
I. L. R. II. Bora.
239
Z081
Land Mortgage Bank of India v. Vishnu Govini
Patankar
I. L. R. II. Bora.
670
467
,.db,Google
INDEX OF CASES
Name of Case.
Volume and Page.
Column of Digest.
Lali Kooer v. Subadar Kooer
I. LR.III.CaI.
720
876
Leelanund Singh Bahadoor v. Thakoor Mun
jun Singh
I. L. R. III. Cal.
261
M0
Lekhraj Roy v. Kunhya Singh
I. L. R. 111. Cal.
210
185,567
Lekkamini v. Collector of Trichinopoly
■1
L. R. t. Ind. App.
293
! •
Leman v. Damodaraya
I. L. R. I. Mad.
158
930
Lokenath Ghose v. Jugobundhoo Roy
I. L. R. I. Cal.
287
817
Lokhee Narain Roy v. Kalypuddo Bandopadhya
and Shamapuddo Bandopadhya
L. R. II. Ind. App.
154
248
London, Bombay andMediten-anran Bank (Limit-
ed) v. Bhanji Zutani and another
I. U R. II. Bom.
116
283
Luchmessur Singh v. Leelanund Singh...
1. L. R. IV. Cat
588
650
Luchmi Dai Koori v. Asman Singh
MR. II. Cal.
218
674
Luchmun Singh, Ajeet Singh, and Ramdeen
Singh v. Shumshere Singh
L. R. II. Ind. App.
68
671,1208
Luckhy Narain v. Kally Puddo Banerjee
I. L. R. IV. Cal.
882
976
Lukhykant Bose, In the matters/ the Petition
of.
I. L. R. I. Cat.
180
1419
Luckmidas Vithaldas v. Ebrahim Oosman
1. L. R. II. Bom.
014
112
Lungcssur Kooer r. Sookha Ojha
I. L. R. III. Cal.
161
126
Lyell v. Ganga Dai
I. L. R. I. All.
60
1040
K.
MaeGillivary v. The Jokai Assam Tea Co.
I. L. R. II. Cal.
38
969
Mackenzie v. Shere Bahadoor AM
I. L. R. IV. Cal.
S78
381
Mackintosh v. Wingrove
I. L. R. IV. Cal.
137
1476
Mackintosh v. Hunt
I. L. R. II. Cal.
202
824
Madalatha, Ex parte
I. L. R. II. Mad.
75
124
Madhoji v. Vyankaji
1. L. R. I. Bom
197
126
Madhavan v. Achudu
I. L. R. I. Mad.
301
80S
Madhavrao Keshav Tilak v. Gungabai ...
I. L. R. II. Bom.
639
649
Madhavarayya v. Trithasami
I. L. R. I. Mad.
807
60S
Madho Das v. Kamta Das
I. L. R. I. AH.
639
028
Madho Das v. Rukman Sevak Singh ...
1. L. R. II. All.
287
12MO
Madhoo Proshaud Singh v. Purs ha n Ram
I. L. R. IV. Cal.
620
1247
Madhub Chunder Giree, In the matter of
the
Petition of
I.L. R. III. Cal.
143
878
Madhub Chunder Giree v. Sham Chand Giree...
I. L.R. III. Cal.
343
1421
Madras Railway Company v. Zemindar
of
Carvatenagaram ...
L. R. I. Ind. App.
364
1462
Mahabeer Singh v. Juneswar Dass
1. L. R. III. Ind. App. 1
Mahabir Parshad v. Debi Dial
I. L. R. I. All.
291
1149
Mahadaji v. Vyankaji ,
I. L. R. I. Bom.
197
126, 1326
Mahadeva Rayar v. Sappani
I. L. R. I. Mad.
896
1287
Mahantappa v. Nilgangaura
I. L. R. III. Bom.
368
6Z6
Maharajah of Bulrampur v. Gouri Shunker
L. R. VI. Ind. App
1
45
Maharajah Luchmessur Singh v. Bissessur
Lall
Sahoo
L. R. VI. Ind. App
£38
684,675
Maharajah of Bulrampur v. Uman Pal S
ngh
and Ganesh Singh
L. R. V. lad. App.
226
40
Di,iii,.db»Goo<^le
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest.
Maharajah Pertab Naraiii Singh v. Maharanee (
Subhao Koer and others (
L. R. IV. Ind. App
L. R. V. Ind. App.
i. L. R. HI. Cal.
288
171
626
I 47,1145
Maharana Fattehsangji Jaswatsangji v. Dessa
Kallianraiji Hekoomutraiji
L. R. I. Ind. App.
31
1462
Mahomed Arshad Chowdhry v. Sajida Banoo ...
I. L. R, III. Cal.
702
950
Mahomed Badsha v. Nicol, Fleming, & Co. ...
I. L. R IV. Cal.
855
258
Mahomed Elahee Buksh v.-Brojokisbore Sen ...
I. L.RIV. Cal.
497
177
Mahomed Ewaz v. Brij Lall
L. R. IV. Ind. App
166
1231.
Mahomed Hoasain Rowthen v. Thumbasawmy
Mudelly
L. R. II. Ind. App.
244
1
Mahomed Shuffli v. Laid™ Abdula
I. L. R. III. Bom.
227
271
Mahtab Chunder Bahadoor v. Ram Lall Mooker-
j«
I. L. R III. Cal.
851
74S
Makundi Ul v. Kaunsila
I. L. R. 1. All.
5U8
971 , 1352
Malcolm v. Gasper, In thematter 0/ The Empress
of India on the Prosecution of
I. L. R. II. CaL
27B
567
Man Kiiar v. Jasodha Kuar
I. L, R I. All.
478
313
Man Singh v. Narayan Das
L L. R I, All.
480
1268
Manally Chenna Kesavaraya v. Mangadu Vaide-
Unga
f. L R. Mad.
S43
89!)
Mancherji Kawasji Davur v. Mithibai
I.LR.1. Bom.
50 a
39
Maneckji Limji Mancherji v. Goolbai
I. L. R. III. Bom.
241
1876
Manessur Dass v. The Collector and Municipa
Commissioners of Chapra
I. L. R I. Cal.
409
173
Mangal Khan v. Mumtaz Ati
(. L. R. II. AH.
239
835
Manickbai v. Hormasji Bomanji
1. L. R. I. Bom.
647
714
Manick Chunder Dutt v. Bhuggobutty Dossee...
I. L. R III. CaL
443
584
Manik Singh v. Paras Ram
1. L. R. I. All.
727
1153
Maniklal Atmaram v. Munchersha Dinsha
I. L R. I. Bom.
2fi9
201, 388, 684
Manna Lai r. Bank of Bengal
I. L R. I. All.
309
318
Manni Kasaundhan v. Crooke
LLR II. All.
29i!
52
Manohar Ganesh v. Bawa Ramcharandas
I. L. R II. Bom.
319
S45, 346, 347
Manohar Lai v. Gauri Shankar
I. L. R. I. All.
470
27
Manohar Doss v. Romanath Law
L L. R. III. Cal.
473
168
Maratib Ali v. Abdul Hakim
I. L. R. 1. All.
569
1153, 1605
Martin v. Lawrence
I. K. R. IV. Cal.
655
'708
Maseyk v. Fergusson ,
I. L. R. IV. Cal. 804
,670
1504
Mathappa Chetti v. Chellappa Chetti
I. L. R. I. Mad.
196
772
Mathra Paishad, In the matter of the Petition of
I. L.RI.AU.
29ij
1420
Mattongeney Dossee v. Ramnarain Sadkhan ...
I. L. R. IV. Cal.
83
1233
Mathura Das v. Babu Ul..
L L. R. I. All.
683
15
Matungee Churn Mitter v. Moorrary Mohun
Ghose
I. L. R 1. Cal.
175
186
May oi of Lyons t. Advocate- General of Bengal. . J
L. R III. Ind. App
1. L. R 1. Cal.
32
80S
J 1512
Meer Mahomed Hossein v. A. J. Forbes
L. R. II. Ind. App.
1
472
Meer Reasut Hossein v. Hadjee Abdoollah
L. R I. Ind. App.
72
1146
Meghraj v. Zakir Husain
I.LR.I. All.
280
23
Memon Hajee Haroon Mahomed v. Molvi Abdul
Karim and Moola Ahmed Moola Abdulla ,,.
I.L.R III. Bom.
91
1171
D,„i„.db»Googlc
INDEX OF CASES.
Name of Cue.
Volume and Page-
Column of Digest.
Mercer v. Narpat Rai
I. L. R. I. All.
786
BH
Miller v. Brindabun
1. L. R. IV. Cal.
910
168
Miller v. The A dministrator -General of Bengal
1. L. R. t. Cal.
411
713
Mina Ally Bebanee v, Syed Hyder Hoosein ...
1. L R. 11. Bom.
449
849
Mina Himmut Bahadoor v. Mussamat Saheb-
zadee Begum
L R. I. Ind. App.
ts
943
Mirza Himmut Bahadoor, Mussumat Bismullah
Begum, and Mussumat Sahibzadee Begum v.
Ranee Sonet Kowar
L. R. III. Ind. App
92
481
MirzaJehanKadrv. AfsurBahu ... [
I.L. R. IV. Cal.
L. R. VI. Ind. App
787
76
J 298
Mirza Mahomed Aga Ali Khan Bahadoorv.The
Widow of Balmakund ... ...
L. R. III. Ind. App
241
1434
Mirza Mahomed Ally Sherazee and The Bur.
mah Company (Limited,) v. The Bombay
Burmah Trading Corporation (Limited) ■
L. R. V. Ind. App.
180
1180
Mobaruck Shah v. Toofany
I. L. R. IV. Cal.
206
1077
Modalatha, Ex parte
1. L. R. 11. Mad.
7S
124
Modun Mohun, In ths matter of the Petition of.
I. L. R. IV. Cal.
870
1095
Mohabeer Hroahad Singh v. Bun wares Lai
Sahoo
L. R. I. Ind. App.
89
29
Mohammed Ewaz v. Birj Lall ...
L. R. IV. Ind. App
ioe
1231
Mohanlal Jechand t. Amratlal Bechardas
1. L R. III. Bom.
174
391, 481
Mohesh Chunder Banerjee v. Ram Pursono
Chowdhry ...
I. L R. IV. Cal.
539
338
Mohesh Chunder Khan, In the matter of the
Petition of
I. L. R. IV. Cal.
417
381
Mohesh Mah to v. Sheikh Pirn
1. L. R. 11. Cal.
470
126
Mohesh Mistree, In the matter of tk* Petition
0f
1. L. R. 1. Cal.
28*
IMS
Mohima Chunder Dey Sircar v. Hurro Lall Sir-
car
1. L. R. 111. Cal.
708
861
Mohiny Mohun Roy v. Ichamoyee Daasea
I. L. R. IV. Cal.
012
181
Mohummud Buhadoor Khan v. Collector o:
Bareilly
L. R. I. Ind. App.
107
28
Mokoondo Lall Shaw v. Gonesh Chunder Shaw
I.LR.I. Cal.
104
877
Monmohinee Dossee v. Khetter Gopaul Dey ..
I. L. R. I. Cal.
117
IIS
Monohur Doss v. McNaghten
I. L. R. III. Cal.
281
718
Monohur Doss v. Romonauth Law
t. L. R. III. Cal.
478
188
Moran v. Mittu Bibee ... J
1. L. R. 11. Cal.
228
f 62, 1020
I. L. R. IL Cal.
68
*
Moreshwar Bapuji Phatak v. Kushaba Shankroji
I. L. R. II. Bom.
248
t
Morgan v. Kirby
1. L. R. II. Mad.
46
484
Mora bin Patlaji v. Gopal bin Satu
1. L. R. II. Bom.
120
125,859
Mothoora Mohun Roy v. Peary Mohun Shaw ..
1. L. R. IV. Cal.
£59
1414
Mothooranath Chuttopadhya v. Kristo Kumar
Ghose
I. L. R. IV. Cal.
389
S82
Mothoormohun Roy v. The Bank of Bengal ...
I. L. R. III. Cal.
892
1187
Mothoormohun Roy v. Soorendro Narain Deb..
1. L. R. I. Cal.
109
81, 147S
Moulrie Mahomed Shurosool Hooda v. She-
wukiain alias Roy Doorga Pershad
L. R, II. Ind. App.
7
680
D,„i„.db»Googlc
INDEX OF CASES.
Name of Case.
j Volume and Page.
Column of Digest.
Moung Shoay Atl v. Ko Byaw ... •- ,
L. R. III. End. App
I. L. R. I. Cal.
01
S31
j 456
Mowla Buksh v- Kishen Pertab Sahi
I. L. R. I. Cat.
103
830
Muddun Thakoor v. Kantno Lall
L. R. I. Ind. App.
321
595
Muhammad Abdool Kadar v. The E. I. Rail-
way Company
L. R. I, Ind. Mad.
375
770
Muhammad Ali v. Kalian Singh
1. L. R. I. All.
659
14-13
Muhammad Ewaz v. Birj La]
I. L. R. I. All.
4«5
1231
Mulchand v. Balgobind
1. L. R. I. All.
mo
1015
Mul Chand Joharimal v. Suganchand Shivdas ..
I. L. R. I. Bom.
28
828
Mulo, In the mailer of the Petition of
I. L. R. II. Bom.
299
2(iS
Mumtaz Hossein v. Biij Mohun Thakoor
I. L. R. IV. Cal.
8RH
270
Mungol Prashad Dichit v. Shama Kanto Lahory
Chowdhry
LLR. IV. Cal.
70S
880
Munia v. Balak Ram
I. L. R. II. Cal.
513
1129
Municipal Committee of Moradabad v. Chattri
Singh
I, L. R. II. AIL
209
50
MunnooLall v. Lalla Choonee Lall
L. R. I. Ind. App.
144
482, 1113
Munsuk Mosundas v. Shivram Devising
I. L. R. 11. Bom.
532
637
Murarji Gokuldas V. Parvatibai ...
I. L. R. I. Bom.
177
609, (ilO
Murch, In the Goods of
I. L. R. IV. Cal.
725
09
Muili Dhar v. Parsotam Das
I. L. R. II. All.
91
122, 528
Murlidhar and Vasudev v. Supdu and Balkrishna
1. L. R. III. Bom.
149
193
Murray, In re
I. L. R. III. Cal.
5S
7B3
Murugayi v. Viramakali ...
I. L. R.I. Mad.
m
em
Muse Ali Adam, In re ... ...
I. L. R. II. Bom.
653
357
MussamatBhagbutti Dae« v. Chowdry Bhola-
nath Thakoor
L. R. II. Ind. App,
256
603
Mussamat Bhawani Kuar v. Gulab Rai
1. L. R. I. All.
348
1340
Mussumat Bibi Bechunnissa v. Chowdhri Mur-
taia Hossein
L. R. III. Ind. App
209
252
Mussumat Phoolbas Koonwur v. Lalla Joge- J
I. L. R. I. Cal.
226
j 597,1141
shur Sahoy ... ., '
L. R. III. Ind. App
7
Mussamut Ganga Jati v. Ghasita
I. L. R. I. All.
46
071
Mussamut Jagesri Kuar v. Ram Nath Bhagat ...
I. L. R. I. All.
.371
410
Mussumat Kundu Koowar v. Baboo Doorga
Pershad
L. R. I. Ind. App..
55
658
Mussumat Sahebzadee Begum v. Mirza Him-
mut Bahadoor
L. R. 1. End. App.
23
943
Muthora Nalh Pal v. Chunder Money Dabia ...
I. L. R. IV. Cal.
817
1004
Muthrav. Jawahir
1. L. R. I. All.
527
384,440
H.
Nana bin Lakshman v. Anant Babaji
I. L. R. II. Bom.
353
1224, 1237
Nanak Chand v. Ram Narayan ...
I. L. R. II. All.
181
147
Nanak Ram v. Mehin Lai
I. L. R. 1. All.
487
305, 325
Nanchand Hansraj v. Bapusaheb Rustambhai...
I. L. R. 111. Bom.
131
631,744
Nand Kuma. v. Radha Kuari
I. L. R- 1. All.
181
1267
Nanku v. The Board of Revenue ( I. L. R. 1. All.
Narandas v. Bai Manchha i I.JL. R. llI^Bom.
Narain Chunder v. Tayler 1 1. L. R. IV. Cal.
D,gltlzed by G00gle
INDEX OF CASES.
Name of Ci.se.
Volume and Page.
Column of Digest.
Narain Das, In Ike mailer of the Petition of ..
I. L. R. I. All.
010
157
Narain Dhara v. Rakhal Gain
I. L. R. 1. Cal.
1
623, 662
L.R. IV. Ind. App
1. L. R. 1. AH.
15
Narain Singh v. Shimhhoo Singh ... \
3B5
{ «*1
Narain Singh v. Mohammad Faruk
I. L. R. 1. AIL
177
1147
Narayanacharya v. Nurso Krishna
I. L. R. 1. Bom.
282
632
Narayan Bharthl v. Laving Bharthi
I. L. R. 11. Bom.
110
392, 625, 9SS
Narayan Madhavraa Naik v. The Collector o
Thana-
1. L. R. II. Bom.
14
8*8
Narayan Undir Pate] v. Motilal Ramdas
I. L. R. I. Bom.
«
200
Narayanrao Ramchandra Pant v. Ramabai j
L. R. VI. Ind App
114
{ F40.877
1. L. R. III. Bom.
41 3
i
Naranji Rhikhabhai v. Dipa Umed
I. L. R. III. Bom.
1
494
Narhar Singh v. Dirgnath Kuar
I. L. R. II. All.
407
660
Na.rs.iyya Chetti v. Guruvappa Chetti
I. L. R. L Mad.
878
1128
Narhar Govind Kulkarni v. Narayan Vilh.il
I. L. R. I. Bom.
607
589
Narsinbhat bin Bapubkat v. Chenapa bin Nin-
gapa
I. L. R. 11. Bom.
479
67S
Narsingdas Rughunathdas v. Tn I si ram bin
Doulatram ...
L L.R.II. Bom.
55B
268
Narsingrav Ramachandra v. Lmumanrav
I. L. R. I. Bom.
318
195
Nam Pira v. Maro Shidheshvar
1. L. R. III. Bom.
as
173
Natha Hira v. Janardhan Ramachandra
I. L. R. I. Bom.
603
894
Nathu Ganesh v. Kalidas Omed
1. L. R II. Bom.
865
1400
Nathubhai v. JavherRaiji
I. L. R. 1. Bom.
121
609,613
Nathuni Mahton v. Manraj Mahton
I. L. R. II. Cal.
149
1082
Nawab Syed Ali Hossein Khan and others v
Tacoordeen Tewarry ...
L. R. 1. Ind. App.
19a
1097, 1887
Nawab Malka Jahan Sahiba v. Deputy Commis-
sioner of Luck now ... ...
L. R. VI. Ind. App
68
297
Nazir Khan v. Proladh Duttt „,
I. L. R. IV. Cal. '
669
668
Nehalo v. Kishen Lai
I.L.R. II. AIL
150
680
Nehalov. Nawal
I. L. R. I. All.
428
32
Nellaikumaru Chetti v. Marakathammal
I. L. R. I. Mad.
166
604, 682
New Fleming S. & W. Co. {Limited), In thel
I. L. R. III. Bom.
439
| 282, 112S
matter of |
I. L. R. IV. Bom.
275
Nichollsv. Wilson
I. L. R. IV. Cal.
563
144
Nidhoomoni Debya </. Sarada Pershad Mookerjee
L. R. III. Ind. App
253
681
Nikka Mai v. Gardner
L L. R. II. All
193
1030
Nilkunto Dey v. Hurrosoonderee Doasee
I. L.R. III. Cal.
414
531
Nil Money Singh Deo v. Chunderkant Banerjee
I. LR.II.Cb1.
IS6
47S
Nilmoney Singh Deo v. Baneshur
I, L. R. IV. Cal.
91
634
Nilmonee Singh Deo v. Rambundhoo Roy
I. L. L. IV. Cal.
767
70S
Nindan Gavda v. Matan Gavda
I. L. R. I. Bom.
633
417
Nirmul Chandra Mookerjee v. Doyal Natha
Bhuttacharjee
I.L.R. II. Cal.
180
1435
Nirod Erishno Roy v. Woomanath Mookerjee..
I.L. R. IV. Cal.
718
931
Niatarni Dasi v. Bonomali Chatterji
1. L. R. IV. Cal.
941
175
Nobin Chunder Dey v. The Secretary of State
for India
I. L. R. I. Cal.
11
1837
Nobo Doorga Dossee v. Foyzbux Chowdhry ...
I.L. R.I. Cal.
20.
1258
D,„i„.db»Googlc
INDEX OF CASES.
'.Name of Case.
Volume and Page.
Column of Digest.
Nobodeep Chunder Shaha v. Sonaram Dass ...
L L. R. IV. Cal.
E9£
175
Nocoor Chunder Bose v. Rally Coomar Ghose...
I. L. R. I. Cal.
328
605
Norender Narain Singh v. Dvrarka Lall Mun- t
1- L. R. III. Cal.
397
[ 1012
der •
L. R. V. Ind. App.
IN
Nowla Ooma v. Bala Dharmaji
I. L. R. II. Bom.
91
1403
NurAhmadv.AltafAli
I. L. R. II. All.
58
243
Nnrsey Kesiowjee, In the matter of
0.
Oakes v. Jackson
I. I_ R. III. Bom.
270
1330
I. L. R. I. Mad.
134
387
Oghra Singh v. Ablakhi Kooer
I. L. R. IV. Cal.
530
41, 18S8
Omritolall Dey, In the matter of.
I. L. R. I. Cal.
76
1170, 1404
Oodaychurn Milter, /h the matter of the Peti-
tion of
I. L. R. IV. Cal.
411
214
Oolagappa Chelty v. Arbuthnot J
LR.I. Ind. App.
298
£68,
S15
j 750,111*
Oriental Bank Corporation and others v. John
Fleming and others
P.
P. Shekari Varma Valia Rajah v. Mangalom
I. L. R. II. Bom.
242
208, I0SS
Amugar
I.L.R.I. Mad,
B7
1076
Palak Dhari Rai v. Radha Prasad Singh
I. L. R. 11. All.
65
130
Panchcowrie Mull *. Chutnroolatl
I. L. R. HI. Cal.
509
144!
Pandah Gazi v. Jennuddi
I. L. R. IV. Cal.
S05
1417
Param Singh v. l-iljiM.il
I. L. R. I. All.
103
437
Paras Ram v. Gardner
I. L. R. I. All.
955
905
Parbhudas v. Motiram
I. L, R. I. Bom.
203
1105
Parbutty Nath Roy Chowdhry v. Mudho Paroe-
1. L. R. III. Cal.
276
763
Parichat v. Zalim Singh
I. L. R, III. Cal.
SI*
634
Pamieshar Rai v. Bisheshar Singh
I. L. R. I. All.
S3
505
Parsotam Keshavdas v. Kalyan Rayji
I. L. R. III. Bom.
348
473
Partab Singh v.BeniRam ,
I. L. R. II. All.
61
629
Pasupati Lalchmia v. Pasupati Mutham Bhattu
I. 1. R. I. Mad.
62
908
Pauliem Valoo Chetty v. Pauliem Sooty ah
Chetty
1. LR.L Mad.
252
6S4
Pauliem Sooryah Chetty v. Pauliem Valoo)
Chetty 1
Pauliem Valloo Chetty v. Pauliem Sooryah (
L. R. IV. Ind. App
109
1144
Chetty J
Pearson v. Madhub Chunder Ghose
I. L. R. II. Cal.
8B7
18*0
Periasami v. Periasami.— Ramasami Chetti v
Periasami.— Kosalarama Pillai v. Periasami..
L. R. V. Ind. App
61
BBS
Pestonjee Eduljee Guzdur v. Mina Mahomet
Ally
I. L. R. III. Cal.
641
257, 1140
Phate Saheb Bibi v. Damodar Premjee... ■ ,.
I. L. R. UK Bom.
84
954
Phul Knar v. Murli Dhur
I. L. R. II. All.
h;
1024
Phulroan Rai v. Dani Kuari
I. L. R. I. All.
453
1162
Piarey Lai v. Saliga
I. L.R.II.A1U
894
875
Rtamber Baboo v. Nilmony Singh Deo
I. L. R. III. Cai.
793
861
,,Google
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest.
Phoolbas Koonwurv. Lalla JogeshurSahoy ..
I. L. R. I. Cal.
««
597, 1144
Phukar Singh v. Ranjit Singh
I. L.R.I. All.
601
C67
Phulman Rai v. Dani Kuari
I. L. R. f. All.
*52
1162
Piarey Lai v. Saliga
I. LRU. AIL
894
875
Pitamber Narayendas v. Vanmali Shamji
I. L. R. II. Bom.
1
1026
Pitam Singh v. Ujagar Singh
1. L R. I. All.
651
291
Pogose, In Ike mailer of
I. L. R. III. Cal.
710
1*22
Pogosev. The Bank of Bengal
I. L. R. III. Cal.
174
1165
Pogose v. Cal chick
I. L. R. III. Cal
708
1422
Poonen, Ex parte ...
1. L. R. I. Mad.
17*
935
Poena Kooer, In the matter of the Petition of...
I. L. R. I. Cal.
101
1287
Poorno Chunder Coondoo v. Prosonno Coomai
Sikdar ...
I. L. R. II. Cal.
123
900
Poran Sookh Chunder v. Parbutty Dossee
I. L. R. III. Cal.
612
114, 414
Poresh Narain Roy v. Kassi Chunder Taluk-
dat
I. L. R. IV. Cal.
601
869
Port Canning Land Investment, &c., Company
v. Smith
L. R. I. Ind. App.
124
817, 1224
Prabacharrow v. Potannah
I. L. R. II. Mad.
863
911
Prag Das v. Hari Kishan
I. L. R. I. All.
603
612, SGS
Pranshankar Shivshankar v. Govindlal Par-
bhudas
I. L. R. I. Bom.
467
1828
Pratab Daji v. The Bombay, Baroda, and Cen.
tral India Railway Company ...
1. L. R. I. Bom.
62
1200
Prataprao Gujar v. Bayaji Namaji
I. L. R. III. Bom.
141
708
Premchand Burral v. The Collector of Cal-
cutta
I. L. R. 11. Cal.
103
798
Prem Narain Singh v. Parasram Singh an<
Bholonath Singh
L. R. IV. Ind. App
101
1479
Prem Sukh Das v. Bhupia
I. L R. II. All.
517
817
Prince Miria Jehan Kudi Bahadur v. Nawab \
I.L. R. IV.Cal.
727
298
Assur Bahu Begum (
L. R. VI. Ind. App
70
298
Prosunno Coomaree Debea v. Sheikh Rutton
Bepary
I. L, R. III. Cal.
69(5
814
Prosunno Coomar Sircar v. Ram Coomai
Parooey
I. L. R. IV. Cal.
53
1300
Prosunno Chunder Bhuttacharjee v. Kristo
Chytunno Pal
I. L. R. IV. Cal.
342
1108
Prosunno Chunder Coondoo v. Prosunno Coo
mar Sikdar ...
I. L. R. II. Cal.
128
900
Prosonna Nath Roy Chowdry v. Afeolonnessa
Begum
I. L. R. IV. Cal.
533
90
Prosunno Kumari Debyav. Golab Chand Ba
boo
L L. R. II. Ind. App. 1*5
488
Pro tab Chunder Doss v. Gour Chunder Roy ..
I. L. R. IV. Cal.
132
1163
Purmanund Asrum v. Rookinee Gooptani
I. L. R. IV. Cal.
793
470
Puran Mai v. Ali Khan
I. L. R. I. All.
235
2*8
Purran Chunder Ghose v. Mutty Lall Ghose
Jahira ...
I. L. R. IV. Cal.
50
804
Pursooram Borooah, In the matter of
I. L. R. II. Cal.
117
853
Putali Meheti v. Tulja
I. L. R. HI. Bom.
228
915, 1267
Di,iii,.db»Goo<^le
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest,
a.
Quarry, In the matter of
I. L. R. II. All.
511
1146
Queen v. Baijoo Lall
I. L. R. I. Cal.
*so
878
Queen v. Bholanalh Sen
I. L. R. II. Cal.
23
445
Queen v. Gholam Ismail
I. L. R. I. All.
1
365
Queen v. Gobin Tewari ... ...
I. L. R. I. Cal.
281
181
Queen v. Gur Bakhsh"
I. L. R. I. All.
193
877
Queen v. Hurribole Chunder Ghose
I. L. R. I. Cal.
207
217, 601
Queen v. Jagat Mai
I. L. R. I. AIL
10?
j 879
Queen v. Kultatan Singh
I. L. R. I. All.
129
Queen onthe Prosecution of Morad AH v. Hadjee
Jeebun Bux
I. L. R. 1. Cal.
3M
578
Queen v. Naiada
I. L. R. I. All.
43
1095
Queen v. Peterson
1. L. R. I. All.
SI 6
IBS
Queen v. Thakur Prasad
1. L. R. I. All.
151
872
Queen v. Upendronath Doss
I. L R. I. Cal.
35S
232,577
Queen v. Zuhirruddin ...
B
R. S. Joshi v. L. B. Joshi
I. L. R. I. Cal.
219
353
I. L. R. fl. Bom.
650
1002
Radha Pros had Singh v. Ramcoomar Singh ...
1. L. R. III. Cal.
796
96
Radhabai v. Chimaji bin Ramji Sali
1. L. R. HI. Bom.
27
1828
Radhabai V. Ganesh Tatya Gholap
I. L. R. HI. Bom.
7
565, 678
Radhabai v. Nanarav
1. LR. III. Bom.
151
671
Radhiav. Bant
I. L. R. I. AIL
E60
1269
Raghapa v. Parapa ...
I. L. R. I. Bom.
217
760
Raghoji Bhikaji v. Abdul Karim
I. L. R. I. Bom.
590
886
Raghubanund Doss v. Sadhu Churn Doss
1. L. R. IV. Cal.
435
659
Raghumoni Audhikary v. Nilmoni Singh Deo...
I. I.. R. 11. Cal.
393
893
Raghu Nath Das v. Ashraf Husain Khan
I.LR. II, All.
252
1386
Raghu Ram v. Dannu Lai
I.LR. II. All.
285
870
Rahi v. Govinda
I. K. R. I. Bom.
97
624
Rahmani Bibi v. Hulasa Kuar
1. L. R. I. AIL
642
17
Rahimalbai v. Hirbai
I. I.. R. III. Bom.
34
789
Rai Komul Dossee v. J. W. Laidley
I. L.R.IV. Cat
B57
1310
Rai Narain Dass v. Nownit Lai and Bunwari
Lai
. L. R. IV. Cal.
809
672
Raj Bahadoor Singh v. Achumbit Lai
L. R. VI. Ind. App.
110
900
Raj Chunder Roy v. Sbama Soondari Debi
. L. R. IV. Cal.
663
39S
Raj Koomar Singh v. Sahebzada Roy
. L, R. III. CaL
SO
1218, 1895
Raja Barda Kant Rat v. Bhagwan Das
. L. Rep. I. All.
84-1
741,1027 '
Raja Ram v. Bansi
. L. R. I. AIL
207
1150
Rajah Kishen Dutt Ram Panday v. Narendar
Bahadoor Singh.
L R. III. Ind. App.
85
42
Rajah Muttu Ramalinga Setupati v. Perianaya.-
gum Pillai
L- R- 1. Ind. App.
209
BBS, 1248
Rajah Sri Chakanya Cbundra v. Collector of
Ganjam
L. R. I. Ind. App.
335
889
Rajcoomaree Dossee v. Gops.ii I Chunder Bose...
. L. R. III. Cal.
514
682
Rajah Parichat v. Zalim Singh
L. R. IV. Ind. App
159
641
Di,iii,.db»Goo<^le
INDEX OF CASES.
Name of Case.
Rajah Vellanki Venkata Krishna Row v. Ven. j
kata Rama Lakshmi Narsayya ... (
Rajah Vurmah Valia v. Ravi Vurmah Mutha j
Rajah Nilmoney Singh v. Kally Churn Bat.
tacharjee
Rajah Kishendatl Ram v. Rajah Mumtaz All
Khan
Rajah Bhagwan Bax and another v. RamjisdaSS
nd Page- Column of Digest
and Im
z Ali
Raja valad Shivapa v. Krishnabhat
Rajkishen Singh v. Ramjoy Surma Moioomdar.
Rajkishore Lahoory v. Gobind Chunder La- I
Rajendronath Mookhopadhya v. Bassider Ruh.
man Khondkhar
Rijpali Singh v. Ram Suktii Kuar
Raju Balu v. Krishnarav Ramchandra
Ralli v. Fleming
Ramakrishna Chettiv. Palanyandi Kudambar...
Ramaddin v. Mahesh
Ramanand v. The Bank of Bengal
Raman and Koondoo v. Chowdhry Sounder
Narain Sarungy
Rama Rao v. Suriya Rao
Ram a sa mi v. Bhaskarsami
Ramasami Aiyan v. Venkatramaiyan ...
Ramasami v. Thenivengadasami
Ramasawmi Chetti v. The Collector of Ma-
Ram Autar v. Ajudhia Singh
Rambhat Agnihotri v. The Collector of Puna.
Ramchandra v. Sonar
Ramchandra Chintaman v. Kalu Raju ...
Ramchandra Lakshmanji, In the matter of the
Will of
Ramchandra Mankeshwar v. Bhimrao Ravji ...
Ramchandra Sakharam Vagh v. Shakharam Go-
pal Vagh.
Ram Chunder Chuckerbutty v. Brojonath Mc-
»umdar - I. L. R. IV. CaJ.
Ram Chunder Ghusaol v- Juggutmonmohiney
Dab«« I. L. R. IV. Cal.
Ram Coomar Coondoo v. Chunder Canto t L. R. IV. Ind. App.
Mookerjee ' I. L.R.II. Cal.
Ram Coomar Paul v. Jogender Nath Paul ... I. L. R. IV. Cal.
Ram Dial v. Ram Das I. L. R. I. All.
Ram Dial v. Gulab Singh L L. R. I. All.
Ram Doolary Kooer v. Thacoor Roy 1. I_ R. IV. Cal.
Ramdoyal Khan v. Ajoodhia Ram Khan ... 1. L. R. II. Cal.
L. R.[IV. Ind. App.
I. L.R.I. Mad. ]
L. R. IV. Ind. App.
I. L. R. I. Mad. i
L. R. II. Ind. App.
L. R. VI. Ind. App. 145
L. R. V. Ind. App. :
I. L.R. 111. Bom. !
1. L. R. I. Cal. !
I. L. R I. Cal.
L. R. IV. App. 1
I. L. R. 11. Cal.
1. L. R. II. All
1. L. R. II. Bom.
I. L. R. III. Cal.
I. L. R I. Mad. :
I. L. R. II. All.
I. L. R. I. All. 1
1. L. R. IV. CaJ. 1
I. L. R. 1. Mad.
I. L. R. II. Mad.
I. L. R. II. Mad.
L. R. VI. Ind. App. :
I. L. R. I. Mad.
L. R. VI. Ind. App. :
I. L. R. II. Mad.
I. L. R. I. All.
I. L. R. I. Bom. I
I. L. R. I. Bom. 1
I. L. R. II. Bom. I
I.LR. II. Bom.
818
U29
UBS, 1SSS
1464
1102
118
118
1183
1371
1325
lies
856,805
Digitized by G00gle
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest.
Riaiesshur Pershad Narain Singh v. Koonj (
I, L. R. IV. Cal.
083
J 165
Behari Pattuk *
L. R. IV. Ind. App
38
\
Ram Ghulam v. Chotey Lai
1. L. R, 11. All.
46
1237
Ram Gholam v. Sheo Tahal
I. L. R. I. All.
SB8
119
Ramjas v. Baij Kath
1. L. R. 11." All.
BB7
128
Ramjisdas and Initial Ali v. Raja Bhagvran
Bajt and another
1-L.R.V.Ind.App
197
1078
Ram Kishan v. Bhawant Das ,..
I. L. R. I. All.
333
893
Ram Kishen v. Shedu
I. L. R. II. All.
275
260
Ramnandan v. Shrinivasa Murtbi
I. L. R. II. Mad,
80
819
Ramnath Tolapattro v. Durga Sundari Debi ...
I. L R. IV. Cal.
550
611
Ramkishn Doss v. Luckey Narrain
I. L. R. III. Cal.
312
1140
Ram Lall Singh v. Lill Dharry Muhton
I. L. R. III. Cal.
770
955
Ram NeeJhee Koondoo v. Rajah Rughoo Nath
Nath Narain Mullo
I. L. R. I. Cal.
456
408
Raminihi Nayar, In the mallet of
I. L R. I. Mad.
266
1099
Ram Rotton Mundui v. Netro Katly Dassee...
I. L. R. IV. Cal.
839
466
Ram Sabuk Bose v. Monmohini Dossee
L. R. 11. Ind. App.
71
185
Ramsoonder Sandyal v. Gopessur Mostofee ...
I. L. R. III. Cal.
711
910
RamSunker Senaputty v. Bir Chunder Manikya
1. L. R. IV. Cal.
714
177
Ram Tamin Koondoo v. Hossein Buksh
I. L. R. III. Cal.
785
286
Ram Tuhul Singh v. Biseswar Lall Sahoo anc
Soodisht Lall
L. R. II. Ind. App.
131
1886
Raman v. Karunatha
1. L. R. II. Mad.
201
1287
Ranchoddas Dayaldas v. Ranchoddas Nanabhai
I. L. R. I. Bom.
581
191
Ranee of Chllloree v. The Government of India,
LR.IV.Ind. App- 208,n
43
Ranee Khajooroonissa v. Ranee Ryeesoonissa...
I,. R. II. Ind. App.
235
945
Ranee Khujooroonissa v. Mussamut Roushun
(L.R.III.Ind.Ap
.291
J 943, 1296
Jehan
( I. L. R. II. Cal.
184
Ranee Son wet Konwarr. Mina Himmut Baha-
, T. L. R. I. Cal.
891
? „,
door, Mussamut Bismullah Begum, and Mai-
(-L.R.1II. Ind.Ar.
J 461
samat Sahibzadee Begum
p. 92
*
Rango Venayek v. Yamunabai
I. L. R. III. Bom.
44
637
Rani Mewa Kuwar v. Rani Hulas Kuwar
I_ R. I. Ind. App.
157
289
Ran) it Singh v. Sheo Prasad Ram
I. L. R. II. All.
487
1122
Rash Behary Bundopadhya v. Peary Mohun
Mookerjee
I. L. R. IV. CaL
840
818
Ratan Kuar v. Jivran Singh
I. L. R. I. All.
194
1065
Ratan Singh v. Waiir
I. L. R. I. All.
185
Hi
Ratlansi Kalianji, In the matter of the Petition
gf
I. L. Rep. II. Bom
148
270
Raychurn Dutt v. Ameena Bibi
I. L. R. II. Cal.
38;
1390
Raynor v. The Mussoorie Bank.
I. L. R. IV. All.
55
1506
Ravji Narayen Mandlik v. Dadaji Bapuji Desai
Mamlatdarof Ratnagiri
I. L. R. I. Bom.
I. L. R. II. Cal.
L. R. II. Ind. App.
528
131
22!
306, 1105
Reasut Hossein v. Hadjee Abdooltah ... J
j 1289
Reg. v. Acharjys
I. L. R. 1. Mad.
824
1100
Reg. v. Adivigadu ...
I. L. R. I. Mad.
171
854
Reg. v. Ambigara Hulagu
I. L. R.I. Mad.
IMS
499
Reg. v. Arunachellam
I.L-R-I. Mad.
161
uos
D,„i„.db»Googlc
INDEX OF CASES.
Name of Case.
Volume and Page,
Column of Digest.
Reg. v. Baiju Lall
I. L. R. I. Cal.
450
378
Reg. v. Balapa
I. L. R. I Bom.
639
361
Reg. v. Bhista bin Madanna
I. L. R. I. Bom.
808
32,304
Reg, v. Bholanath Sen ...
I.L.R. II.CaL
23
445
Reg. v. Budhu Nanii
I. L.R.I. Bom.
13 i
499
Reg. v.Devama
I. L. R. I. Bom.
64
237, 363, 870
Reg. v. Gaji kom Rami ' ...
I. L. R. I. Bom.
311
647
Reg. v. Gholam Ismail
I. L. R. I. All.
1
166
Reg. v. Gbbin Tewari
I. L. R. I. Cal.
2S1
131
Reg. v. Govinda
I. L. R. 1. Bom.
343
1037
Reg. v. Gur Baksh
I. L.R. I. All.
x«s
377
Reg. v. Hadjee Jeebun Bus
I. L. R I. Cal.
354
576
Reg. v. Hanmanta...
I. L. R, I. Bom.
610
12,192,376,595, 141
Reg. v. Hanmant Govda
I. L. R. I. Bom.
8S6
192
Reg. v. Haribole Chunder Ghosc
I. L.R. I.Cal.
207
217, 501
Reg. v. Jagat Mul
I. L. R. I. AIL
102
879
Reg. v. Kandakora
[. L. R. I. Mad.
223
833
Reg. v. Khanderav Bajirav
I. L. R. I. Bom.
10
300
Reg. v. Kulkaran Singh
I. L R.I. All.
ljy
379
Reg. v. Lakhya Govind
I. L. R. 1. Bom.
60
351
Reg. v. Lalubhai Gopaldaa
I. L. R. I. Bom.
232
575
Reg. v. Locha Kala
I. L. R. I. Bom.
340
3S7
Reg. v. Maruti Dada
I, L. R. I. Bom.
15
4,81
Reg. v. Muhammad Saib
I. L. R. I. Mad.
277
370
Reg. v. Muthavan
1. L. R. I. Mad.
191
283
Reg. v. Naida
I, L. R. I. All.
43
10H5
Reg. v. Parsapa Mahadevapa
I. L, R. I. Bom,
839
878
Reg. v. Peterson
I. L. R. 1 All
30
165
Reg. v. Pitamber Jina
I. L. R. II. Bom,
61
1130, 1362
Reg. v. Pyla Atchi
I. L. R. I. Mad
278
937
Reg. v. Rahimat
I. L. R. I. Bom.
147
2K3
Reg. v. Rama Bhivgovda
I. L. R. I. Bom.
223
130
Reg. v. Ramasami Padayachi ...
1. L.R I. Mad.
394
500
Reg. v. Sambhu Raghu ... ...
I. L.R. 1. Bom.
847
1108
Reg. v. Samia Kaundan
I. L. R. I. Mad.
173
«
Reg. v.Shiva
I. L. R. I. Bom.
219
499
Reg. v. Thakur Par shad ...
I. L. R. I. All.
151
872
Reg. v. Tukaya bin Taman*
I. L R. 1. Bom.
214
838
Reg. v. Upend ronath Doss
I. L. R. I. Cal
23?
575
Reg. v. Vithaldas Pranjivandas
I. L. R. I. Bom.
402
575
Reg. v. Zuhiruddin
I. L. R. I. Cal.
219
33
Remfry v. Shillingford
I. L.R, I.Cal.
130
40
Rowron v. Hanama Mestri
I. L. R. I. Mad.
280
30
Roy churn Dull v. Ameenabibi
I. L.R. II. Cal.
385
1390
Roy Meghraj v. Beejoy Gobind Burial
I. L. R. I. Cal.
197
1286
Roymoney Dossee, In the Goods of
I. L. R. 1. CaL
160
160
Rudr Narain Singh v. Rup Kuar
I. L. R. 1. All.
734
615
Rughoobur Dyal Sahoo v. Maharajah Kiaben
Pcrtab Sahee
L. R. VI. Ind. App
211
18
Ruka Bai v. Ganda Bai
I. L. R, I. All.
694
048
Rukmin, la the matter of the Petition of
I. L R. I. All,
267
119
Di,iii,.db»Goo<^le
INDEX OF CASES.
Name o£ Case.
Runglall Misser v. Tokhun Misser
Kungo Lall Mundul v. Abtlool Gu floor ...
Runguhai v. Bhagirthibai
Roiijeet Singh v. Kooer Gujraj Singh ...
Runjit Singh v. Meherban Kooer,and other
Rushton, In tit Goods of
Rntotnji Burjorji v. Kessowji Naik
Ryall v. Sherman
I. L. R. II. Cal.
I. L. R. IV. Cal.
I. L. R. II. Bom.
L. R. I. Ind App.
I. L. R. III. Cal.
. I. L-R.HI.Cal.
. I. L. R. III. Bom.
. I. L. R. I. Mad
Sabapathi v. Subraya and Ramanadha ...
Sadasiva Pillai v. Ramaiinga Pillai
Sadik Ali Khan v. Muhammad Hussain Khan.
Sadodin v. W. Spiers
Safdar Ali Khan v. Lachman Das
Sab Koondun Lall v. San Mukhnn UU Panda;.
Sab Mukhun Lall Panday v. Sah Koondun Lall-
Sahai Pandey v. Sham Narain
Sahib Zadah v. Parmeshar Da*
Sahibzada Ahmed Raza Khan and other* v.
Sahibzada Zeinulabdin Khan ...
Sakharam Dikshit v. Ganesh Sat he
Sakharam Sadhashiv Adhikari v. Sitabai
Salamat Ali v. Budh Singh
Sallu Ganesh v. Runchod Kahandaj
Sazneer Mull and Chundun Mull v. Chogalall
Saminada Pillai v. Subba Reddiar
Sarasuti v. Mannu
Sarawak, &c, Banking and Trading Co., In the
matter of
Saroda Pershad Mookerjee v. Nidhoomoni Debya
Sarubai v. Bapu Narhar Solioni ...
Sathu valad Kadir Sausare v. Ibrahim Agavatad
Mini Aga
Satra Kumaji v. Visram Hasgavada
Savitribai v. Luximibai
SayadMii Ujmudin Khanvalad Mir Khamrn- C
din Khan v. Zia-ul-Nissa Begam ... t
Saynd Chanda Miah Saib v. Lakshmana Aiyan-
B"
Scale i. Brown
Secretary of State for India v. Sii Albert Sassoon
Seshadri Ayyangar v. Saudanam...
Seths Gujmull, Jeithmnll, and Tharunull
Mnsjumat Chahee Kowar
Seth Gokul Dass Gopal Dass v. Murli andZalim
Shafl-ud-din v. Lochan Singh
Shaikh Ewax t. Mokuoa Bibi ...
Sham Knar t. Gaya Din
Sluun Churn Anddy v. Tariney Chora Banerjee-
I. L- R. II. Mad.
L. R. II. Ind. App. i
" L R. II. All. 8
L. R. III. Bom. A
I. L. R. II. All. J
L. R. II. Ind. App. 1
L. R. II. Ind. App. S
I. L. R. II. All. 1
I. L. R. I. All. t
L. R. V. Ind. App. t
I.LR II. All.
I. L. R. III. Bom. 1
I. L. R- III. Bom. I
I. L. R. 1. All. 8
I. L, R. II. Bom. e
L. R" IV. Ind. App S
I. L. B. I. Mad. 1
1. L. R. II. All. 1
I. L, R. IV. Cal. !
L. R. III. Ind. App. I
I. L. R. II. Bom. i
I. L. R. II- Bom.
1. L. R. II. Bom.
I.LR. II. Bom.
I. L. R. III. Bom.
L. R. VI. Ind. App. :
1161
1089
416,628
1828
1228
638, 649
i"
. L. R. I. Mad.
45
034
. L. R. I. All.
710
641
. L. R- 1- Bom.
MS
708
. L. R. I. Mad.
140
033
L. R. 11. Ind. App.
84
1189
I. L. R. Ill- CaL
60S
SIS, 746
I. L. R. 11. AIL
04
264
I.L. R. I. AIL
18!
1161
1. L. R. I. AIL
B6G
017
1. L R. L CaL
•H
460,1401
,»GoogIe
INDEX OF CASES.
Shama Chum Mullik, In thi Goods of
Sham Narain Singh v. Rughooburdyal
Shankar bin Marabasapa v. Hama bin Bhima ...
Shankar Ramachandra v. VishnuAnant
Sharat Chunder Burmon v. Hurgobindo Burmon.
Sheen v. Johnson ... v
Sheikh v. Khoorshed Hoossein v. Nubbee Fa.
Shekari Varma Valliah Rajah v. Mangolarr
Amugar
Sheo Soondaty v. Pirthee Singh
Sheo Singh Rai v. Mussumut Dakho ... i
Sheo Gholam Sahoo v. Ra.hu t Hossein
Sheo Prasad v. Anrudha Singh
Sheo Prasad v. Miller
Shepherd v. TheTrustees of the Port of Bombay,
Sheth Kahandas Narandas v. Dahiabhai
Shib Dat v. Kalka Prasad
Shib Gopal v. Baldco Salmi
Shib LaW. Hira Lai'
Shib Prokash Singh v. Sardar Doyal Singh
Shib Narain Shaha V. Bipin Behary Biswas
Shimbhu Narain Singh v. Bachcha
Shiro Kumari Debi v. Gobind Shaw Tanli
Shivlal Khubchandv. Apaji Bhivrav ...
Shodone Mohaldar v. Halalkhore Mohaldar
Shoshi Muhun Pa! Chowdhry v. Nobo Kristo
Poddar
Showers v. Seth Gobind Das
Shringarpure v. Pethe
Shufferudin v. Ibrahim
Shugan Chand v. The Government, North
Western Provinces
Shunker Sahai (Widow of) v. Rajah Kashi
Pershad
Shurnomoyee v. Pattarri Sirkar...
Sib Chunder Mullick v. Kishen Dyal Opadhya.
Sibo Prasad, In the matter of tht Petition of
Sidiingapa v. Sidava
Sini Thiruvengadathiengar v. Sangiliveerapa
Pandya Chinnathumbiar ...
Sirdar Bhagwan Singh v. The Secretary of
State for India in Council
Sital v. Madho
Sitaram Vasudev v. Khanderav Balkrbhna
Sivagnana Tevar v. Periasanu ...
Skinner v. Orde
Smith v. The Secretary of State
I. L. R. 1. Cal.
[. L. R. III. Cal.
I. L. R- II. Bom.
I. L. R. I. Bom.
I. L. R. IV. Cal.
L. R. II. All.
L L. R. III. CaL
fifil
26*
I. L. R. I. Mad.
L. R. IV. Ind. App. 1*7
L. R. V. Ind. App.
I. L. R. I. All.
I. L. R. IV. CaL
I. L. R. II. All.
I. L. R. II. AIL
I. L. R. I. Bom. 181, 477
I. L. R. III. Bom.
1. L. R. II. All.
I. L. R. II. AIL
I. L. R. 1. AIL
I. L.R. III. Cal.
I. L. R- III. CaL
I. L. R. II. All.
I. L. R. I. CaL
I. L. R. II. Bora.
L. R. IV. Cal.
L. R IV. Cal.
J. L.R. I. All.
I. L. R. II. Bom.
L. R, HI. CaL
I. L.R.I. All.
L.R. IV. hid. App.l98.n.
I. L. R. IV. Cal. 625
I. L. R. I. Cal. «C
I. L. R. IV. CaL 124
I. L. R. 11. Bom. 625,031
448, 1446
804, 128*
1088
1491
729, 841
690, 885
I. L. R. I. Mad.
65
L. R. II. Ind. App.
I. L.R. I. AIL
I. L, R. I. Bom.
I. L. R. I. Mad.
I. L. R. I. All-
I. L. R. II. All.
L R. VI. Ind. App. 126
LL.R.I11. Cal.
i»ai
1817
1001, 1088, 1M1
650, 851, 1084, 1400
by Google
INDEX OF CASES.
Name of Case.
Sobha Bibee v. Miria Sakhamut Ali
Sohan Lai v. Karim Baksh
Somasundaram Chctti v. Administrator- Genera
Soudaminey Dossee v. Jogesh Chunder Dutt ...
Sonet Kooer v. Himmut Bahadoor
Sooltan Chund v. Schiller
Soonder Narain v. Benmid Ram
Soorja Kant Acharj Chowdhry, lit the matter of
tie Petition of
Soorjmutthi Koer, Intke matter of the Petition <
Sreenarain Bagchee v. Smith
Sreemutty Nittokissoree Dossee v. Jogendi
Nauth Mullick
Sreeram Chandra Lerkan v. Bipindas ...
Sri Gajapathi Nilamani Palta Maha Devi)
Garu v. Sri Gajapathi Radhamani Patta >
Maha Devi Garu ... ... ... J
Sriram Chandra l.erkan v. Bipindas
Sri Raghunadha v. Sri Broio Kishoro ... <
Srimati Uma Deyi v. Gokoolanund Das Maha
Sri Shankar Bharti v. Sidha Singaya Charantai
Stowell v. Billings
Strimathoo Moothoo Vijia Ragoonadah Ranee
Kolandapuree Natchiar v, Dorasinga Tei
Subba Aitala, In the matter of ...
Subbaiyarv. Kristnaiyar
Subhabhat bin Babanbhat v. Vaaudevbhat bin
Subhabhat
Subramaniya Ayyar v, Ramchandra Rau
Suddurtonnessa v. Majada Khaloon ..
Suganchand Shivda v. Moolchand Joharimal
Sukhai v. Daryai
Sukhbasi Lai v. Guman Singh ...
Sukho v. Durga Prasad
Sultan Kuar v. Gulzari Lai
Sumar Ahmed v. Haji Ismail Haji Habib
Sumbhoo Narain Singh v. Bachoba
Sundnr v. Khuman Singh
Suraj Bunsi Koer v. Sheo Proshad Singh
Surbomungola Dabee v. Mohendronath Nath,
Surdharee Loll v. Mansoor Ally Khan ...
Surjan Singh v. Jagan Nath Singh ...
Surju Prasad v. Bhawani Sahai.
Surnomoyee Dabee v, Koomar Plirresh Nara
Roy
Surutram Bhaya v. The G. I. P. Railway Com-
pany
Volume and Page.
I. L.R.III.Cal. 87
I. L. R. II. All. 26
I. L. R. Mad. 14
I. L. R. II. Cal. E6
I. L. R. I. Cal. 89
I. L. R. IV. Cal. Si
I. L. R. IV. CaL 7
I. L. R. I. Cal. 88
1. L. R. II. Cal. 27
I. L. R. IV. Cal. 80
L. R. V. Ind. App. 5
I. 1. R. IV. CaL 71
L R. III. Ind. App. 21
I. L. R. I. Mad. 28
I. L. R. IV. Cal. 71
L. R. III. Ind. App. 15
I. L. R. 1. Mad. 6
L. R. V. Ind. App. 4
I. L. R. II. Mad. 4
I. L. R. II. Bom. 47
I. L. R. I. All. 35
L. R. II. Ind. App. 16
I. L. R. I. Mad. 30
I. L. R. I. Mad. SB
I. L. R. II. Bom. 11
1. L. R. I. Mad. 39
I.LR. III. Cal. 8S
XII. Bom. H.C. 11
I. L. R. 1. Bom. 2
I. L. R. I. All. 37
I. L. R. II. All. 3li
I. L. R. II. All. 44
I. L. R. II. All. 29
I. L. R. I. Bom. 15
I. L-R. II. All. 20
I. L. R. I. All. 61
L. R. VI. Ind. App. t
I. L. R. IV. Cal. 50
I. L. R. III. Cal. 29
I. L. R. II. All. 31
1. L. R. II. All. 4K
I. L. R. IV. Cal.
I. I.. R. III. Bom.
163, 1430
83
13ta8
S'/li 1383
96 1203
zedbyGOOgle
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest.
Suryaprakasa Rau v. Vaisya Sanniasi Raiu ...
I. L. R. L Mad.
401
27S
Suttya Ghosal v. Suttyanund Ghosal
I. L. R. 1. CaL
888
on
Syad Mir Ujmuddin Khan v. Zia-ul-Nissa Be-
gam andRahim.ul-Nissa Begam
U.R. III. Bom.
422
23
Syed Moidifl v. Sundramutra
1. L. R. II. Mad.
9
284
Syud Bazayet Hossein and others v. Dooli [
L. R. V. Ind. App.
211
J 952
Chund 1
I. L. R. IV. Cal.
402
Sayud Mahomed Hossein v. Hadzi Abdullah ...
T.
Tacoordeen Tewarry v. Nawab Syed AH Hossein
I. L. R. III. CaL
727
116
Khan and others
L. R. I. Ind. App.
192
1077, 1387
Tagore v. Tagore
L. R. I. Ind. App.
887
1609
Taj-ud-Din Khan v. Ram Prasad Bhagat
I. L. R. I. All.
217
65
Tarachand Biswas v. Ram Gohind Chowdhry ...
LUR.IV.CbL
776
898, SIB
Tarachand Hirchand v. Lakshman Bhavan
I. L. R. I. Bom.
91
2,982
Tarini Churn Brohmo v. Bamasoonderee Dossee
I. L. R. IV. Cal.
128
111
Taru Patur v. Abinash Chunder Dutt
I. L. R. IV. Cal.
79
7B3
Taufik-un-nissa v. Gholam Kambar
I. L. R. I. AIL
50ft
946
Teagaraya Mudali v. Mariappa Pillai
I. L, R. I. Mad.
2IU
888
Tej Ram v. Haisukh
1. L. R. I. AIL
101
1120
Tekait Doorga Persad Singh v. Tekaitn
(L. R. V. Ind. App. 149
J 12S8
Doorga Kunwari
* I. L. R. IV. Cal.
190
Tertetput Singh v. Gossain Sudersan Das
I. L. R. IV. CaL
46
1423
Tetley v. Jai Shankar
I. L. R. II. AIL
726
187
Thakut Durriao Singh v. Thakur Davi Singh..
L. R. I. Ind. App.
1
658, 1146
Thakoor Hardeo Bun v. Tbakoor Jawaliir i
L. R. IV. Ind. App
178
' 45, 46, 136, 763
Singh 1
L. R. VI. Ind. App
101
Thakoor Jeebnath Singh v. The Court of Wards
L. R. II. Ind. App.
163
681
Thakoor Kapilnath Sahai v. The Government
I. L. R. I. CaL
142
137
Thakur Prasad v. Ashan Ali
I, L. R. I. All.
668
124
Thakur Shore Bahadur Singh v. Thakurain
Dariao Kuar
I. LR. III. CaL
645
46
Thamman Singh v. Gang* Rant
I. L. R. II. All.
34B
423
Thomson's Policy. In the matter ef
I.LR. III. CaL
847
1418
Thumbusami Moodelly v. Hoossain Rowthen i
I. L. R I. Mad.
L. R. II. I. A.
241
(1011
Thumbasawtny Mudelly v. Mahomed Hossain
Rowthen ...
L. R. II. Ind. App.
241
1011
Tiery v. Kristodhun Bose and others
L.R. I. Ind. App.
7tS
tea
Tiluck Chand v. Soudamini Dasi
I.L.R IV. CaL
566
1817
Timal Kuari v. Ablakh Rai
I. L. R. I. All.
264
88*
Tiru Krishnama Chariar v. Krishnasawmi Tata 1
I. L. R. 11. Mad.
62
.
Chariar |
L. R. VI. Ind. App
120
J 455
Tirthanund Thakoor v. Mutty Lall Misser
I. L. R III. Cal.
774
1405
Toondun Singh v. Pokhnarain Singh
L. R. I. Ind. App.
342
22,1191
Torit Bhoosun Bonnerjee v. Taraprosonno Bon
nerjee
I. L. IV. CaL
7H
L082
Tota Ram v. Sher Singh
I. L. R. I. CaL
261
66
Treepoorasoondery Dossee v. Debendronath
Tagore
1. L, R. II. Cal.
4t
216, 897, 1502
Di,iii,.db»Goo<^le
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest
Trimalrav Raghnvendra v. The Municipal Com-
missioned of Hubli
I. L. R. III. Bom.
172
1487
Troylokhanath Biswas and Ram Churn Biswas,
In the matter of
I. L. R. III. Cai
742
U49
Tukaram bin Atmaram v. Ramachandra bin Bud-
haram
I. L. R. I. Bom.
314
1003
Tdkaram Vithal, In re
I. L. R. 11. Bom.
527
198
Tnlsi Ram v. Ganga Ram.-
U.
Ubilack Rai v. Datlial Rai
I. L. R. I. All.
£52
235
I. L. R. III. Cal
557
603
L'da Btgam v. [mam-ud-din
I. L. R. II. AIL
74
19
Uda Begum y. Imam-ud-din
I. L. R. 1. All.
82
125
Udai Singh v. Bharat Singh
I. L. R. I. All.
45b
534
Udai Singh v. Jagan Nath
I. L, R. I. AIL
185
1886
Umabai, widow of Shankarrav v. Bhavn Pad.
manji
I. L. R, I. Bom.
557
610
Utnbica Churn Goopta v. Madhub Ghosai
I. L. R. IV. Cal.
870
870
Umbika Nundun Biswas, In re
I. LR.III.CaL
43 4.
788
Umedmal Moliram v. Davu bin Dhondiba
I. L. R. II Bom.
547
710
Umiashanlcar Lakhmiram v. Chholalal Vajaram
I.LR.1. Bom.
19
804,9a
I. L.R. II. All.
451
54
64
Umrao Begam v. The Land Mortgage Bank. J
I. L. R. I. All.
547
Unnoda Churn Dass Biswas v. Mothura Nath
Dass Biswas
I. L. R. IV. Cal.
BOO
1365
Unnoda Persad Roy v. Sheik Koorpan Ally ...
V.
V. K. Gurjar v. V. D. Barve
I. L. R. III. Cal.
511
909
I. L. R. II. Bom.
678
900
Vaithelinga v. Saminada
I. L. R. 11. Mad.
14
327
Valaji Isaji v. Thomas
I. L. R. I. Bom.
190
1220
Valia Tamburatti v. Vira Rayan
I. L. R. I. Mad.
228
888
Vardala Charri, In the matter of the Petition
and Schedule of
1. L, R. II. Mad.
16
784
Vaughan v. Heseltine
I. L. R. I. AIL
753
1503
Vasudev Anant v. Ramkrishna and Shivram
Narayan
I. L. R. II. Bom.
629
191. 708
Vasudev Sadashive Modak v. The Collector oft
I. LR.II. Bom.
Bt
{1107
Ratnagiri J
L R. IV. Ini App
na
Vedavalli v. Narrayana
I. L.R.II.Mad.
19
loss
Vellanki Venkata Krishna Rao v. Venkata Rama
Ukshmi
I. L. R. I. Mad.
17
588
Venayek Ramachandra, In re ...
I.LR.1. Bom
188
178
Venkata narasammah v. Ramiah
I. L. R. 11. Mad.
10S
1028
Venkataramayyan v. Venkata Subramania Dik
shatar
I. L. R. I. Mad.
858
1349
Venkatesav. Sengoda
I. L. R. 11. Mad.
117
1404
Venkatasami Naik v. Kuppaiyan
I. L. R. 1. Mad.
354
1353
Venkata Ram Rau v. Venkata Suriya Rau f
I. L. R. I. Mad.
281
}
Venkata. Rama Lakshmi Narsayya v. Rajah 3
£ 601, 667, 681
Vellanki Venkata Krishna Row ... C
L. R. I. Ind. App.
1
5
D,„i„.db»Googlc
INDEX OF CASES.
Name of Case.
Volume and Page.
Column of Digest
Venkittarama Pittar v. Kambarath Keshav
Memon
I. L. R. I. Mad.
849
314
Veribhai v. Raghabhai
I. L. R. I. Bom.
226
1087
Viraiamuthi Udaya v. Singaravehi
I. L. a I. Mad.
800
025,034
Vishnu Bhaujoshi v. Raoji Bhau Joshi,..
1. L. R. III. Bom.
18
149
Vishnubhat v. Babaji
I. L. R. III. Bom.
145
704,983
Vishvanath v. Maliadaji
w.
Wagji Korji v. Tharia Topan ...
I. L. R. III. Bom.
147
709
I. L. R. III. Bom.
68
1617
Walji Karimji v. Jaganatb Preonji
I. L. R. II. Bom.
84
1408
Wali-uL-ta v. Ghutam Ali
I. L.R.I.AI1.
635
1048
Wallace v. Jefferson
I. L. R II. Bom.
453
7SC
Watson v. Aga Mehedee Sherazee
L R. I. Ind App.
8*1
10,878
Watson and Co. v. Dhonendra Ch under Mooker-
jee
1. L. R. III. Cal.
e
869, 1Z6S
Wemyss, In the Goods of
I. L. R. IV. Cal.
721
J 1177
White, In the Goods of
I. L. R. IV. CaL
m
Widow □( Shunkur Sahai v. Rajah Kali Pershad
L. R. IV. I. A.
198
43
Wilayat-un-nissa v. Najib-un-nissa
I.LRL All.
583
117
Williams v. Williams
1. L. R. III. Cal.
688
451
Wilson, In the Goods of
1- L.J*. 1. Cal.
143
713
Womda Khanum v. Rajroop Koer
I. L. R. III. Cal.
335
244
Wood v.Wood
I.LR. III. Cal.
485
460
Wooma Daee v. Gokoolanund Dass
T.
Yamunabai v. Narain Moreshvar
I. L. R III. Cal.
587
586,619
I.LR.I. Bom.
IB4
1276
Yeoni v. Bhagwan Sahai
Z.
Zahurv. Nur Ali
[.LR.L AH
641
248
i. l. a ii. ah.
99
952
Zaib-ul-nissa v. Jairam Gir
I. L. a i. aii.
618
244
Zaib-ul-nissa Bibi v. Kulsum Bibi
i. l. a i. ah.
260
1458
Zain-ul.Abdin Khan v. Ahmad Raza Khan ... J
I. L. R. 11. All
LR.V. Ind. App.
67
233
| 239
Zalim Singh v. Rajah Parichat
L. R. IV. Ind. App.
139
684
Zamindarof Di vara cot a v. Vemuri Venkayya...
I. L. a I. Mad.
389
934
Zemindar of Carvatenagaram v. Madras Railway
Company
L. R. I. Ind. App.
364
1452
Zemindar of Pittapuram v. The Proprietors of 1
I. L. R. II. Mad.
28
J1265
the Muttaof Kolanka i
L. a V. Ind. App.
206
Zinulabdin Rowten v. Vijien Virapatren
I.LR.I. Mad.
49
938
Zoolfun Bibee v. Radhica Prosonno Chunder ...
I. L. a III. Cal.
600
1308
D,„i„.db»Googlc
TABLE OF CASES BEVERSEB, OVERRULED, FOLLOWED,
DISSENTED FROM, AND REMARKED UPON.
Abidunnissa Khatoont. Amirunnissa Kha-
toon...L. Bep. 4 I, A, 68 ; I. L. Bop.
S Cal. 337.
Followed in Sobha Bi bee v. Mirza Sakha-
hut All. ..I. L. Rop. 3 Cal. 371; 1
Cal. Bop. 331.
See Act XXIII. of 1861, ( 11. 1.
Adoito Churn Dev o. Peter Dass...13 Seng.
. L. Rep. 417 ; 17 W. Bep. 893.
Followed in Prosunno Cooharbe Debbah.
Sheikh Rutton Bepary.. I. L. Bep.
3 Cal 8fi6; 1 Cal. Bep. 577.
See Landlord and Tenant. S.
The Agra Savings Bank v. Sri Rah Mitter..
I. L. Bep. 1 All. 888.
The opinion of Stuart, C. J., in—differed
from in Partab Singh v. Beni Rah...
I. L. Bep, 2 All. 61.
See Landlord and Tenant. 8.
Ahhud Hossein Khan v. Ma homed A/eeh
Khan-.H. a Bep. N. W.P.,
1889, p. 61.
Followed in Zaib-un-Nissa v. Jairah Gtb..
I. Ii. Bep. 1 All. 816.
See Civil Procoduro Code Act
VHX0fl888, J 340. 3.
AllRlVALAL Boss v. Rajoneekant MlTTER ...Ii.
Bep. SLA 113 ; 18 Bong.
L. Bep. 10 ; 33 W. Bep. 211.
Followed in Baijnath o. Mahabir... I. L.
Bep. 1 AIL 608.
See Hindu Law— Inheritance-
Daughter's Bona.
ArUHACHBLLU PlLLAI V. AppavU PlLLAI 3
Had. H. C. Bep. 188.
Distinguished in Kunhi Moidin Kutti v
Rahen Unni. LL.Bep.lHad. 203.
See Adjustment of Decree.
Anon...,. 1 Bom. H. 0. Bep. 188.
Fotlowedin Empress v. Nurul Huqq... I. L.
Bep. 8 Cal. 767 ; 2 Cal. Bep.
408.
Sec Recognizance.
Anon ..4 Had. H. C. Bep. Appi, 63.
Overruled by Reg. v, Pyla Arc hi ... I. L.
Bep. 1 Had. 278.
See Madras Regulation L of
1806.1.
Apfovibr v. Rama Subha Aivak ...11 Moo. I.
A. 328.
Approved in Runjeet Singh v. KooerGuj-
raj Singh L. Bep. 1 1. A. 9.
See Hindu Law— Partition. 9.
And in Joy Nakain Giri v. Grish Ch under
Mrri... L. Rep. 61. A 228; I.
L. Rep. 4 Cal. 434.
See Hindu Law—Partition. 13.
Ashraf-un-Nissao. Uh rao Beg ah ..I. L. Rep.
1 All. 612.
Followed in Bhikhan Khan v. Ratan
Kuar loid. p. 613.
See Act XVin. of 1873, i 93. 3.
A/jh-l'l-lah Khan o. Kishbn Lall, S. A. 155
of 1877, 19th December 1S77, unreported,
not followed in Harsukh v. Mbgkraj...
L L. Bep. 2 All. 346.
See Decree. 3.
Badri Prasad e. Muhahhad Yusuf...I. L.
Bep. 1 All. 381.
Followed in Jeoni d- Bhaowan Sahai... L
L. Bep. 1 AIL 841.
See Civil Procedure Code, Act
YITX of I860, i 246. 2.
Bai Lakshki e. Lakhmidas...1 Bom. H. C.
Bep. 13.
Disapproved of in Savitribai v. Laxmibai.
I. L. Bep. 2 Bom. 678.
Sec Hindu Law— Maintenance
of Widow. 14.
Diarized by Google
TABLE OF CASES.
Bijnath Shahai e Desputtv Singh L L. I
Rflp. 3 Cal, 308 ; 25 W. Rep. 489.
" The ground of the decision in Baijnatk
Shahai v. Desputty Singh (uU supra) was thai
the party there, a creditor of one of the next of
kin, had no interest in the estate of the deceased.
A purchaser from the nest of kin is in a very
different position from a creditor. If we thought
that that decision went so far as to hold that a
purchaser or an attaching creditor could not
apply for revocation of a probate, we should, as
at present advised, refer the point to be settled
by a Full Bench ruling, because we should dis-
sent From such a ruling." Per Markby, J., in
KoMOLLOCHUN DuTT fl. NlLRUTTEN MllNDLE...
I. L. Kep. 4 CaL 863, 36S ; 4 Cel.
Rep. 175.
Baldeo Sahai ti. Bateshah Singh... I. L.
Rep. 1 AIL 75.
Followed in ]adu Lal*. Ram Gholam...
I. L. Sep. 1 All. 316.
See Res Judicata. 34.
Bates v. Municipal Commissioners of Bel-
lary 7 Mftd. II. C. Rep. 346.
Followed in Leman*. Damodaraya...I. L.
Rep. 1. Had. 158.
See Madras. Act HI. of 1871 . 2.
Behal Doss v. Ikbal Narain.,25 W. Rep.
249.
Followed in Unnoda Persad Royu. Sheikh
Koorpan Ally I. L. Rep. 3 CaL
S18.
See Limitation. 83.
Bhikaji d. Jaganath..,10 Bom. H. a Rep.
Doubted by ft. Harridas, ]., in Moru jj.
Gopal...L L. Rep. 2 Bom. 130, 127.
See Limitation. 3.
Bhyrub Chitnder Surmau Chowdhrv.11
Beng. L. Rep. 433.
Followed in Rov Meghraj o. Beejoy Go-
bind Burrai 1. L.Rep. 1 Cal.197.
See Review. 3.
Biseswar Lall Sahoo v. Ramtuhul Singh,
11 Ben?. L. Rep. 181.
Reversed on appeal to the P. C...L. Rep.
8 I. A. 131.
BlSSESSUR MuLLICK v. Maharaja Dhiraj Ma-
batabChund B. L. Rep. Sup. Vol.
967 ; 8. C. 10 W. Rep. (F. B.) 8.
Followed in Mungol Prashad Dichit b.
Shama Kanto LahoryChowdhry...I.
L. Rep. 4 Cal. 708.
See Limitation. 45.
Borrowman o. Drayton. .,L. Rep. 3 Ex. D.
15.
Followed in Fokbes c. Tullockchand Ma-
NOCKCHAND...I. L.Rep. 3 Bom. 386.
See Contract. 1,
Bowes v. Foster 87 L. J. N. B. 263.
Followed in Param Singh v. Lalji Mai....
I. L. Rep. 1 All. 403.
See Estoppel. 6.
Bulwunt Singh u. Chittan Sinoh ..H. 0.
Rep. N. W. P. 1871, p. 87.
Followed in Lachman Singh jj. Sanwal
Singh I. L. Rep. 1 All. 543.
See Civil Procedure Code, Act
Vin. of 1859, f 7. 8.
Bussee Singh u. Mirza Nuzuf Ali Beg. ..32
W. Rep. 338.
Approved in Dildar Hossein v. Mujee-
ounnissa I. L. Rep. 4 Cal. 639.
See Civil Procedure Code Act
Vm, of 1859, , 197.
Eurkut Hossein e. Majidoonissa...3 C. L.
Rep. 208.
Distinguished in Elaui Buksh v. Mara-
chow I. L.Rep. 4 Cal. 835; 3
Cal. Rep. 693.
See Appeal— Civil. 21.
Cally Churn Mullick e. Bhuggobutty
Churn Mullik...10 Beng. L. Sep. 381.
Approved of and followed in Mothoorho-
hun Roy v. Soorendro Narain Deb...
I. L. Rep. 1 CaL, 108.
See Age of Majority. 1.
Can am ». Kvlash Chundeh Roy Chowdhry...
20 W. Rep. 117.
Approved and followed in Rai Komul
Dosseev. Laid ley... I. L. Rep. 4 Cal.
967.
if « Right of Occupancy. 6.
, In the goods of Chalmers.. .6 Bang. L.
Rep. Appx. 137.
Followed in In the goods of Gas per... I. L.
| Rep. 3 Cal. 733 ; 3 CaL Rep. 436.
See Court Fee*. 8.
quired by Google
TABLE OF CASES.
Chandhrabhagabai e. KASiHATH...2Bom. H.
C. Bop. 333.
Disapproved of in Savttribai jr. Laxmibai.
I. L. Bep. 3 Bom. (173.
Set Hindu Law — Maintenance
of Widow. 14.
Chjnma Uuuiayi *. Teqarai ChbtT[...I. L.
Bep. 1 Had. 188.
Distinguished in Kamalam v. Sadagopa
Cketti X. L. Bep.l Had. 3 S3.
See Dancing Girl.
ClMNASWAMI IYANGAR II. GOPAtACHARVA,.,7
Mad. H. C. Bep. 303.
Decision in — as to limitation, dissented Erom
in Abdul Karimu. Manji Hanskaj...I.
L. Bep. 1 Bom. 295.
See Onus Proband!. 2-
And in Ramchandra v. Somak ..I. L.Bep.
1 Bom. SOS, 808.
See limitation. 1.
Chowdhry Wahid Au b. Musst. Jummayb...
18 W. Bep. 87.
Followed in Hurrodurga Chowdhrai v.
Sharrat Soondbry Dabeea...I. L.
Bep. 4 Cal. 874; 8 Cal. Bep. 017.
See Execution of Decree. 20.
Chundow. Ahim-ud-din....H. C. Bep. N.W.
P. 1874, p. 28.
Dissented from in Dwarka Das if. Husain
Baksh I. L. Bep. 1 AU. 564.
See Pre-emption. 11.
Collector of Madura v. Moottoo Ramalinoa
Sathupathy 12 Moo. I. A. 397.
Explained in Rajah Vellanki Venkata
Krishna Row v. Vemkata Rama
Lakshwi N arsayya . ..Ii. Bep. 4 I. A.
1; I. L.B. Had. 174.
Under Hindu Law— Adoption. 13.
Doubted by Westropp, C.J., in Moru o.
Gopau-.I. L. Bep. 3 Bom. 130.
See Limitation. 3.
Dayal Jairaz v. Khatav Ladha...13 Bom. H.
C. Bep. 97.
Decision in— as to limitation, dissented from
in Abdul Karim «. Manji Hansraj ..I.
L. Bep. 1 Bom. 296.
Set Onus Frobandi. 3.
Dbbi Parsad v. Thakur Dial. ..I. L. Bep.l
All. 105.
Followed in Bkimul Doss o. Choonee
Lall...L L. Bep. 2 Cal. 379.
See Hindu Law— Inheritance—
Nephew.
DlMDYAL LAL V. JAGDIP NaRAIN SlSCH.-.I. L.
Bep. 3 Cal. 198.
Followed in Venkattasami Naik o. Kup-
paiyan I. L. Bep. Had. 854.
And Venkattaramyyan v. Venkatasu bra-
mania Dikshatar Ibid. 358.
DlNOBUNDHOO ChOWDHKY V. KrISI'OMONEE
Dosser... I. L. Bep. 3 Cal. 152:
Followed in Bhrrka Lali. a. Bhuggoo
Uu.,.1 L.Bep. 3 Cal. 33.
Set Be* Judicata. 18.
Doolbin Hur Natii v. Ba[]oo Oojha...H. C.
Bop. N. W. P. 1867, p. 00.
" That case is not well reported. There wasa
specialty in respect to the property sold being
jagir, and, therefore, not subject to sale ; and it
was stated, though it does not appear from the
report to have been proved, that the auction
purchaser was aware of the property being jagir.
If he was aware of the objection, he acted in bad
faith, and I must dissent from the ruling. On
the other hand, if he was not aware of the nature
of the property and of its exemption from sale
in execution, then he was simply deceived and
misled by the decree -holder, and the judgment
of the Court was correct. Per Stuart, C J., in
Makundi Lal b. Kaunsila...I. L. Bep. 1 AIL
568, 574.
Dooma Sahaob. Jodnarain Lal l... 13 W.
Bep. 362.
Followed in Bohomalee Nag «■ Koylash
Ckunder Dby ... I. I* Bep. 4 Cal.
692.
See Estoppel 4.
Dooroa Churn Surma o. Jampa Dossee...12
Beng. L. Bep. 289 ; 81 W. Bep. 48,
Followed in Jadu Dass v. Sutherland...!.
See Co-ahareri of Land. 3.
DiQihzed by G00gle
TABLE OF CASES.
Dwarka Singh ». Solano 33 W. Rep. 88.
Dissented from in NlLHONEB Singh Deo v.
Rahbandoo Roy... I. L. Bep. 4 Cftl.
757 ; 3 Cal. Bep. 311.
See Land Acquisition Act X of
1870. 3.
ElDAN V. MaZKAR HU3AIM...I. L. Rep. 1 AIL
483.
Followed in Taufik-un-Nissa i>. Ghulah
Kambar I. L. Bep. 1 AIL COO.
See Mahomedan Law— Dower. 3.
Empress c. Seymour ...,L L. Bep. 1 AIL 630.
Observed upon in Empress tr. Mahindra
Lal. Ibid, eaa
See Illicit Sale of Liquor. 3.
Enayetoollah o. Shaikh Meajan...16 W-
Bep. 6.
Followed in Khoob Lall v. Jungle Singh.
I. L. Bep. 8 Cal. 787; 3 CaL Bep.
4SO.
Set Appeal— CiviL 30.
Forbes * Sheikh Mean Jan.. .8 W. Bep. 69.
Not followed in Arfunnessa e. Pearv
MoHUN MoOKBRJEB I. L. Bep. 1
CaL 378.
See Onua Proband!. 3.
Frames o. Nun tH Mal...H. C. Bep. N. W. P.
18 70, p. 79.
Dissented from in Bf.haki Lal o. Sauk
Ram I. L. Bep. 1 All. 675.
See Limitation. 79.
Gases Singh v. Ramgopal Singh.. .6 Bang. L.
Bep. Appx. 56.
Dissented from in Panchcowrie Mull v.
Chuhroolall L L. Bep. 8 Cal.
663.
See Suit for Management of a
Beliglou* Endowment.
Grish Chunder Ghose v. Mussamut Kalee
Tara 26 W. Bep. 895.
Stated by Birch, ]., in Bhuggeeruth Berah
V. MONEBRAM BaNNERJEE.,.1. L. R*)p,
4 Cal. 865, 869.
To have been overruled on appeal.
Ganfatraoo. VITHOBA...4 Bom. H. C. Bep.
A. C. J. 130.
"The bead-note to that case is incorrect.
There is nothing in the very meagre report of
the judgment of the Court, there pronounced by
Coach, C. J., to the effect that Lingayets, as the
parties there were, are Vaishyas." Per Wntropp,
C. J., in Gopal Narhar Safray v. Hanmant
Gahesh S a fray... I. L. Bep. 3 Bom. 273,
283
See Hindu Law— Adoption. 6.
Gobind Chunder Koondo it. Taruck Chunder
BOSE...L L. Bep. 3 Cal. 145 ; 1 CaL
Bep. 30.
Followed in Bemolasoondury Chow dm rain
«.PuNCHANUNCtfOWDHRY...I.L.Bep,
8 Oal. 705.
See Bos Judicata. 22.
Go lam Mahomed e. Asmut Au Khan.. .10 W.
Bep. P. B. 14.
Followed in Gogon Manjy ■u. Kashiwary
Deby I. L. Bep. 8 Cal. 498,
See Suit for Kabuliat. 1.
GOFEEHATH JANNAH ». JeTEO MoLLAK.,.18 W.
B. 37S.
Dissented from in Gogon Manji v. Kaski-
wary Deby.:.... I. L. Bep, CaL 8,
498.
Sx Suit for Kabuliat. 1 .
Gossain Dash Chunder v. Issur Chunder
Nath L L. Bep. 3 Cal. 225.
Followed in Goluck Chunder Masanta t.
Nundo Coomar Roy.,.1, L. Rep. 4
Cal. 699 ; 3 CaL Bep. 460.
See Declaratory Decree. 6a.
Gunee Lall Singh e. Joodhistir Majrah..,
26 W. Bep. 141.
Dissented from in Bhagwan Chander Dass
v. SudderAlly I. L. Bep. 4 CaL
41; 3 Cal Bep. 367.
See Bengal Regulation VIII. of
1819, s 8 cl. 2.2.
Gujendro Narain Royo. Hphanginee Dasser.
13 W. Bep. 35.
Distinguished in Chuttrrdharee Lall v.
Ram be lash ek Koer I. L. Bep. 8
Cal. 818.
See Security Bond.
GukqapersadSakeb «. Madhofbrsaud Sakee.
18 Beng. 8. D. A. 1344.
Followed in Lallah Rahesshur Dayal
Singh v. Lallah Bissen Dayal... I. L-
Bep. 1 CaL 406.
Set
D.gmzed by GoOgle
TABLE OF CASES.
xtl
Haheda Bum «. Noor Beebee llW,
Bap. 894.
Followed in Poona Koof.r...L L Rep. 1.
Cal. 101.
See Bevinw. 4.
HaranChunderGhoseuDinobundhooBose.
14 Beng. L. B. 408 ; 8, C. 23 W.
Rep. 187.
Followed in Doss Money Dosser v. Jon-
M ENJOY MuLLICK..,I. L. Bep. 3 Cftl.
863 ; 1 Cal. Sep. 446.
See Bea Judicata. 91.
Harihar Mukopaohya v. Madab Chandra
Babu..,8 Beng. L. B. 666 ; 14 Woo.
I. A. 1S3.
Followed in Arfunnessa p. Peary Mohun
Mookerjee...I. L. Hop. 1 Cal. 378.
See Odm Proband i. 3.
Herbert v. Savers 52 B. 866.
Distinguished in Sadoiwn e. Spiers. ..I. L.
Rep . 8 Bom. 437.
See Ineolvoncy. 1.
Himmatsikg v. Ganfatsing ... 12 Bom. II. C.
Bep. 94.
Rep. 8 Bom. 346
Hirbai v. Gorbai.,12 Bom. H. C. Bep. 284.
"We consider that in Hirbai v. Goriai (12
Bom. H ■ C. Rep- 394) "« have gone quite as
far as we can properly go in applying a less
stringent rule with regard to the evidence re-
quired to prove a custom in the case of Khoja
Mahomedans, than we should do in the case of
Hindus or Mahomedana proper." Per Westroff,
C.J., in Rahimatbai v. Hirbai. ..I. L. Bep. 3
Bom. 34, 36.
SwKhojaa,
HUKNATH CHATTERJEE ». FuTTtCK ClfUNDBR
Suwmadar 18 W. Bep. 613.
Followed in Bhyrub Chunder v- Golab
Coomarv I. L. Bep. 3 Cal. 617.
See Appeal— Civil. 7.
Hurri Sunku" Mookerjee v. Muktaran
Patko ..10 Beng. L. Bep. 838 ; a C.
£4 W. Bep. 164.
Followed in-GoBitfD Chunder Koondo v.
Taruck Chunder Bose...I. L. Bep.
3 Cal. 145; 1 Cal. Bep. 35.
See Bm Judicata. 19.
Hurro Lall Dass ». Soojawut Au...8 W.
Bep. 197.
Observed upon in Sobka Btbee v- Mirza
SachavutAu I. L.Bep.aCal.
371; 1 Cal. Bep. 331.
See Act XXIII. of 1861, ( 11. 1.
tO SOONDUREE DbBIA V. PUNCHOO RaM
Mundul 24 W. Bep. 225.
Followed in Bhvrub Chunder v. Golap
Coouarv I. J,. Bep. 8 CaL 517.
See Appeal— Civil. 7.
litPERATRix «. Padkanabha Pai.-.Z. L. Bep.
a Bom. 884.
Followed in In the Matter of the Petition of
Gur Daval ...J. L, Bep. 8 AIL 806
See Sanction to Froaecute. 6.
in re Bhvrub Bharuttee Mohunt 81 W.
Rep. 840.
Distinguished in Dukharam Bharti v.
Lachman Bharti I. L. Bep. 4
Cal 954; 4 Cal. Rep. 49.
See Certificate to collect Debt*. 4.
Jameson & Co. «. The Brick and Stone Com-
pany L. Bep. 4Q.B.D. 80S.
Distinguished in Sadodin v. Spiers... I- L.
Bep. 3 Bom. 437. '
See Insolvency. 1.
Jijayiansha Bayi Saiba v. Kamakohi Bav
Saiba 8 Mad. H. C. Bep.
484.
Affirmed Sri Gajapathi Nilahani Patha
Maha Devi Guru ». Sri Gajapathi
Radhanani Patha Maha Devi Guru.
I* Bep 4 I. A. 318 ; I. L. B. 1
Mad. 890 ; 1 Cal. Bep. 87.
See Hindu Law— Inheritance —
Widow. 8-
Jina Ranchod b. Jodha Ghela.„1 Bom. H. C.
Bep. I.
Observed upon in Karim Baksh *. BudHa.
I. L. Bep. 1 All. 849.
See Bight to Sua. 3.
Johurra Bibke v. Srer Gopal Misser ...I. L.
Bep- 1 Cal. 470.
Digitized by G00gle
xlii
TABLE OF CASES.
Followed in Joykisto Cowar v- Nittya-
nund Nt-NDY L L. Rep. 3 Cal.
738 ; 2 Cal. Hep. 440.
See Hindu Law— Ancestral Trade.
Joolraj Singh ». Gour Buksh...7 W. Hep.
110.
Dissented from in AnanDrav Bapuji v.
Sheikh Baba I. L. Bep. 2 Bom.
562.
See Be -sale in Execution of De-
Judal v. Hiba.,.4 Bom. H. 0. Bep. A. C. J.
76.
As to the jurisdiction of Small Cause Court,
not followed, in Sidlingapa c. Sidava...
I. L. Bep. 2 Bom. S34.
See Small Cause Court, MofuwiL
2.
And Apaji v. Gangabai Ibid. 632.
See Hindu Law— Maintenance
of Widow. ie.
JudoonathShaha...38 W. Rep Cr.Bule33.
Overruled by Empress b. Baidanath
Das. ..I. L. Bep. 8 Cal. 866; 1 Cat.
Bep. 442.
See Criminal Procedure Code, Act
X. of 1873, f 223.
Jugbundo Run .Singh u. Radasham NareN-
dro Mahapattur Beng. 8. D. A.
1859, pp. 1556, 1560.
Not followed in Janokee Debea v. Gopaul
Acharjia I. L. Bep. 3 Cal.
365.
Sec Hindu Law— Adoption. 2.
Rally Prosonno Hazra h. He era Lal Mun-
DLB...L L. Bep. 2 CaL 468.
Followed in Mungol Prashad Dichit e.
Shaua Kanto Lahory Chowdry...I<
L. Bep. 4 CaL 708.
See Limitation. 44.
Kantljy Rah b. Bankey Lal, unreported, fol-
lowed in Gopal Singh v. Dvlar Khar...
X. L. Bep. 3 AIL 362.
See Appeal—Civil. 22.
Khathaiia Nanchiarv. Dorasinga Tever...
L. Bep. 3 I. A 169 ; 15 Beng. L.
Bep. 88.
Followed in Sini Thiruvengadathiengab
v, Sangiuveerappa P. Chinmathum-
BMR...I. L. Bep. 1 Had. 66.
See Declaratory Decree. 4.
Kelly o. Gobind Das...H. C Bep. N. W. P.
1874, p. 168.
Distinguished in Makundi Lal v. Kaun-
SILA...I. L. Bep. 1 All. 668.
See Sale in Execution of Decree.
13.
Overruled by Empress v. Bidanath Das...
I. L. Bep. 3 Cal. 369 ; 1 CaL Bep.
442.
See Criminal Procedure Code,
Act X. of 1872, ( 233.
Kirpar «. Bsagawan Dass...1 Beng. L. Bep.
F. B. 61.
" All their Lordships desire to say of it is
that, as reported, it does not appear consistent
with their judgment in the former appeal to
which they have referred (i. e.), Soorjomonee
Dajee v. Suddanand Mokapaiter, 12 Beng. L.
Rep. 304), nor with their opinion in the present
case." Krishna Bbhari Ray v. Brojeswari
Chowdranee ...I. L. Bep. 1. Cal. 144 ; L.
Bep. 3 I. A 383.
Note. — In the report in the Law Reports,
'.. A., the name of this case is incorrectly
en in their Lordships' judgment as Sheikh
Rahimtulla ». Sheikh Sarintulla Kagchi.
Kistonath B hag butty v. Jukboonath Bhag-
butty 31 W. Bep. 145.
Not followed in Raj Koomar Singh o.
Sahibzada Roy. ..I. L. Bep. 3 Cal. 20.
See Bight to Sue. 6.
Kyi.ash Chunder Sircar v. Gooroo Churn
Sircar 3 W. Bep. 43.
Overruled by Rajkisiiore La hooky v.
Go bind Chan dee Lakoory I. L.
Bep. 1 CaL 27 ; 24 W. B. 234 ; L.
B. 4 1. A 163 X.
See Hindu Law — Inheritance —
Brother. 1.
Lallubiiai Bapubhai v. MANKU VAKBA1 ... I. Li
Bep. 3 Bom. 388.
Distinguished in Green OER Chunder
Ghose v. Mackintosh I. L. Bep.
4 CaL 897.
See Limitation. 38a.
Luckmeb Buksh Roy v. Runjeet Roy Pandav.'
13 Beng. L. Bep. 177.
Followed in Rahmani Bibi v. Hulasa
Kuar L L. Bep. I ALL 643.
See Acknowledgment of Mort-
gagor's Title. &
Digitized byGOO^Ie
TABLE OF CASES.
jiliii
Manga la Debi v. Dinhahath Bosr.,.4 Beng.
L, Bep. 0. 0. J. 72 ; IS W. Rap.
Civ. Bui. 30.
Followed in Gauri v. Chandrawani...L
L. Bep. 1 All. 862.
See Hindu La w— Widow's Bight
of Bendenca in Family
Home.
Ma'shook Ameen Suzzada v. Meriim Reddy...
8 Wad. H. C. Bep. 31.
Dissented from by Innes, J., in Keshava o.
Keshava......L L. Bep. 2 Had. 46.
See Kanam Mortgage.
As to the observations of Lord Brougham —
" Can the decree as to the application of the
fund stand? Shall the fund be applied to the
establishment and support of a College at
LucknowP Shajl it sink into the residue and
be divided between the two charities appointed
to be established at Calcutta and Lyons ?— for
the case of AtlorHty-CetKr.il v. Bishop of Uan-
daff (cited 2 My. & K. 5E6) and Attorney-General
v. Ironmongers' Co, (Cr. & P. 208, 3 My. & K.
576, 10 CI. & F. 90S) make it clear that in this
case, which is indeed stronger than either of
those, the other two charities must take, if the
gift fail as regards the third,"— the Privy Coun.
cil say in Mayor of Lyons v. Advocate-Gene-
ral of Bengal.. .L. Bep. 3 I. A. 32, p. 68;
LL.B.1 Cat. 303 ; L. B. I. App. Ca. 81.
" It is obvious that the question of the ulti-
mate disposition of the fund was not ripe for
decision, the point then under consideration
being the direction proper to be given for carry-
ing into effect, if possible, the Lucknow charity !
and, indeed, the decree advised by this Com.
mittee, giving directions for that object, was
expressly made 'without prejudice to any
question as to the final application of the
same fund under the direction hereinafter
contained, or otherwise.' The observation
the judgment, therefore, can only be regarded
as an opinion, and not as a judgment. So re-
garded, however, they would have been entitled
to great weight, if their authority had remained
unimpeached. But the subsequent decision in
the case of Attorney. General v. Ironmongers' Co,
in the House of Lords, in which Lord Brougham
concurred, corrected the views his Lordship had
expressed in an earlier stage of that case (:
My. & K. 586), and in the observations referred
1. That decision was in effect that among
charities there was nothing analogous to benefit
of survivorship."
5nrWiU.ll.
Mhalsabai v. Vithoba Khandapfa Golve ...
7 Bom. H. C. Bep. Appx. 26.
The third clause in the head;note to Mhalsa-
bai v. Vithoba Kkandappa Gulve (hoi supra) is
wrong. The Court did not give any opinion
that case on the law relating to Vaishyas, or
that the Lingayats were Vaishyas." Per-Wes-
tropp, C.J., in Gopal Nakhar Safbay *. Han-
mant Ganesh Safray L L. Bep. 3 Bom,
973, £83.
See Hindu Law— Adoption. 6.
MOHESHUR LALL tr. CHRISTIAN... 6 W. Bep,
260.
Followed in Lalla Nowbat Lall ». Lalla
Jewan Lall...I. L.Rep. 4 Cal. 831 ;
2 Cal. Bep. 319.
See Mahomedan Law— Pre-emp-
tion. 1.
MohummudZahoor Ali Khan v. Thakoora-
neb Rutta Koer... 11 Moo. I. A. 466,
Followed in Ram Tarrun Koondoo v.
Hossejn Buksh ..I. L. Bep. 3 Cal.
786; 2 Cal. Bep. 38S.
See Civil Procedure Code, Act
VIII. of 1869, ( 7. 6.
MOIITAZOODDEEN M A HOMED V. R.AJCOOMAR
OA3S...14 Beng. L. Bep. 408 ; 23 W.
Bep. 187.
Dissented from in Khub Chand v Kallian
Dass I. L. Bep. 1 Alt 240.
See Bale in Execution ofDecree. 4.
Morgan v. Powell 3 (i. B. 278,
Approved in Burmah Trading Corpora.
tion, Limited, «. Mirza Mahomeo
AllySherazeb ...L. Bep. 6 1. A. 130.
See Damages. 4.
Mufti Jalalodin Mahomed o. Shokorltlla...
16 Beng. L. Bep. Ap. 1 ; S. C. 82 ;
W. Bep. 422.
Dissented from in Gulzari Mal b. Jadaun
Rai I. L. Bep. 2 All. 63.
Sec Court Fees. 1.
MulukFuoueer Baksh o. Manohar Das...H.
C. Bep. N. W. F. 1870, p. 29.
Followed in Haksukh tj. Meghraj...L L.
Bep. 2 All. 846.
See Decree. 3.
Digitized byGOOC^Ie
TABLE OF CASES.
MussumatBijeeKobrv.Rai Damodar Dass...
H. C. Bep. N. W. P. 1878, p. 65.
Dissented from in Oiosthwaite c. Hamil-
ton I. L. Bep. 1 AIL 87.
See Principal and Surety. 1.
MUSST. FUZULUNV. SyUDKBRAHUT Hosskin...
SI V. Bep. 242.
Approved in Dildak Hossein b.Mujredun
nissa I. L. Bep. 4 Cal. 629.
See Civil Procedure Code, Act
VIII. of 1859, {197.
MuSKAHAT SuBJAN BlBI V. ShEIKH SuRIATUL-
la 3 Beng. L. Bep. 413.
"In so much of that decision as awarded
damages for the detention of the illegally seized
cattle, all of which, with the exception of the
three bullocks which died while in custadia legU,
were restored to the rightful owners, we, as
already observed in Varta v. Hata (n Bom. H.
C. Rep. 46—58), fully concur; but, now that our
attention has been specially directed to the
refusal of the High Court of Calcutta to award
also to the plaintiff in that case, the value of the
three bullocks which died, we feel compelled to
say that we respectfully differ from that portion
of the decision." Goma Mahad Patilo. Go-
KAldas Kiiimji. Westropp, C. J, and KemaatI,].
I. L. Bep. 3 Bom. 74-81, 1878.
Mussumut Wahidunnissah. Mussumut Shah.
rattun 6 Beng. L. Bep. 54.
Followed in Svuo Bazayet Hossein v.
Daou Chand... L. Bep. 5 I. A. 211 ;
1. L. Bep. 4 Cal. 402.
See Hahomedan Lav— Bight of
Creditors to Follow Estate
of Debtor into hands of
Purchaser from Heir.
Nana Lakshuan v. Anant Babaji.I. L. Bep.
2 Bom. 353.
Diff erred from in Rajpati Sinoh e. Rah
Sukhi Kuar ...I. L. Bep. 2 All. 40.
See Registration. 40,
Nef.lkukth Sahek v. Asmun Matho...H. C.
Rep. H. W. P. 1871, p. 67.
Dissented from by Stuart, C.J ., in MAKUND1
Lal b. Kaunsila...I. L. Bep. 1 All.
568, 674.
Nidhamat Ghosal.. 19 W. Bep. Cr. Bui. 1.
Followed in Empress o. Nurul Huo.3... I.
L. Bep. 8 Cal. 757.
See Recognizance.
NlDHARTI NAQABHUSHANAM...7 Mad. H. 0.
Bep. 119.
Approved in Empress w. Ketabdi Mundul.
I. I. Bep. 4 Cal. 764.
See Culpable Homicide.
NlRUNJUN Barthee v. Padarath Barthee..,
a D. A. N. W. P. 1B64, VoL l,p. 613.
Followed in Madho Das si. Kamta Das...
I. L. Bep. 1 All. 639.
See Hindu Law- - Inheritance—
Saniaaie.
Nobolal Khan j>. Adhrranre Narain Koon-
waree 6 W. Bep. 191.
Not followed in Arpunnessa v. Peart
Mohun Mookerjee I. L. Rep. 1
Cal. 378.
See Onua Proband). 3.
Obhoychurn Dutt b. Mudsoodan Chowdhry,
5 Wym. 173.
Not followed in Poqrno Chundrr Coon-
doo v. Prosonno Coomar SlKDAR.,.1.
L . Bep. 2 Cal. 133.
See Limitation. 67,
Odoit Roy jr. Radha Panday...7 W. Bep. 72.
Followed in I.alla Rahesshur Dayal
Sinoh 11. I.alla Bissen Daval..X L.
Bep. I Cal. 406.
See Damages. 1.
Pattabhiramier v- Vencatrow Naiken and
others 13 Moo. I. A. (560.
Approved and explained in Thumbasawmy
Mudellyh. Mahomed HOSSA1N Row-
then L. Bep. 2 I. A. 241 ;
I. L. B. lMad.l.
See Mortgage. 13.
Pearee Mohun Poddar e. Jugobundhoo Sen.
34 W. Bep. 418.
Dissented from as being opposed to the deci-
sion of the Privy Council in Gunga
Gobind Mundul v. Bhoopal Chun-
der Biswas 19 W.Rep. 101.
In Umbicha Churn Goopta v. Madhub
Ghosal I. L. Bep. 4 Cal. 870;
4 Cal. Bep. 66.
5c.' Limitation. 23.
Peddamuthulay v. N.Tihma Reddy...2 Mail.
H. C. Rep. 370.
Observed upon in Uda Bec.au *. ImaH-Ud-
Din I. L.Hep. 1 All. 88.
See Acquiescence.
D,gltlzed by G00gle
TABLE OF CASES.
xlv
Petuh Doss v. Ramdkone Doss ...Tay. 279.
Followed in JoVKtSTO Cowar ■b. NitTva.
nund Nundv.-.I. L. Rep. 3 Cal. 738 ;
2 Cal. Bap. 440.
5k Hindu Law — Ancestral
Trade.
Poof.no Singh v. Hurrychuno Surmah 10
Beng. L. Bap. 117.
Followed in Dwarka Das r. Husaih
Baksh I. L. Bep. I AIL 564.
See Pre-emption. 11.
Protab Chundbr Borooah v. Ranee Surno
Moyee 14 W. Hep. 151,
Followed in Hurrodurga Chowdhrain v.
SHARRGT SoONDARY DABBEA...I. L.
Sep. 4 Cal. 674.
See Execution of Decree. SO.
Radha Kristo Dutt v. Gunga Narain Chat-
terjee 23 W.ltep. 328-
Followed in Bhvrud Chunder v. Golap
Coomary I. L. Bep. 8 Cal. S17.
See Appeal— Civil. 7.
Sahi v. Govind Taj a... I. L. Bep. 1 Bom. 07.
Followed in Viraramuthi Udayan v. Sin-
oabavelu..X L. Bep. 1 Mad. 306.
Sec Hindu Law— Inheritance-
Illegitimate Son. 6.
Raj Moiiun Neogee v. Ahund Chunder
Chowdhry ....10 W. Bep. 166.
" We think that decision is not in accordance
with the principles laid down in the Full Bench
decision in Dayarrumre Chtradrainee v '. Bkolanath
Gkose, B. L. R. Sup. Vol. 591 ; S. C-, 6 W. R.,
Act X- Rul., 77." Per Cur. in Khajah Asha.
noollah v. Kajek Aftabooddeen..L L. Bep.
4 Cal. 594; 3 Cal. Bep,
882.
Under Interact. 8.
Rajagofala Ayyangar i. Collector of Chin-
0LBP1-T...7 Mad. H. 0. Bep. 98.
Distinguished in Fakir Muhammad o.
TtRUHALA CHAKIAR I. L. Bep. 1
Mad. 200.
See Bights of Hirasdars.
Rajah Rah v. Bainee Madko ..H. C. Bep.
N. W. P. 1878, p. 81.
Dissented from in Khub Chand o. Kalian
Das I. L. Bep. 1 All. 240.
See Sale in Execution of Decree.
Rajkjshohe Lahoory v. GobindChunder La.
HOOB.Y...I. L. Bep. 1 Cal. 27 ; 24 W.
Bep. 234 ; L. Bap. 4 I. A 153, n.
Approved in Sheo Soondarv v. Firthee
Sinch L. Bep. 4 1. A. 147.
See Hindu Law— Inheritance —
Brother. 2.
Rajkumar Ram Gofal Narain Singh e. Ram
Dutt Chowdhry.. .5 Beng. L. Bep.
264.
Distinguished in Gunnoo Singh v. Lata.
tot Hots aim ...I. L. Bep. 8 Cal. 3S6 ;
1 Cal. Bep. 91.
Set Mortgage, 28.
Ra«u Naikan v. Subbarya Mudali...7 Mad.
H. a Bep. 220,
Dissented from in Khub Chand v. Kallian
Das I. L. Bep. 1 All. 240.
See Bale in Execution of Decree.
4.
Rama Rau v. Raja Rau.. 2 Had. H. C. Bep.
114.
Remarked upon in Uda Begam v- Imah-
ud-Din I. L. Bep. 1 All. 82.
See Acquiescence.
Rama Rao v. Suria Rac.L L. Bep. 1 Had.
84.
Reversed on appeal, sub nam. Zauindar of
PrrrApuRAM v. Proprietors of thb
Mutt a of Kolanaiu...L. Bep. 6 I.
A. 206 ; I. L. Bep. 2 Had. 38 ; 3
Cal. Bep. 260.
St e Bea Judicata. 6.
Rahaunga Pill a i -
in the marginal note to
Ramatinga Pillai v. Sadasiva Pillai (9 Moo. I.
A. 506,) and at page 51 1 of the report, that the
person held in that case to have been adopted
belonged to the Vaishya class, is erroneous.
Mr. Mayne in his able treatise on Hindu Law
(p. 1 10, note u) states that the parties were
really Sudras, which fact is also mentioned in
the judgment of the High Court of Madras iu
Jiva.niP.hai v. Jivu Bkai{2 Mad. H.C. Rep. 462,
467). In Ratnolinga Pillai v. Sadasiva Pillai
{ubisupra) the judgment of the Privy Council
went solely on the admission of the appellant's
father as to the fact and validity of the adoption,
and which admission, so far as the validity of
the adoption was concerned, rested, no doubt,
D,„i„.db»Google
xlvi
TABLE OF CASES.
on his knowledge that the adopter and adopteei
being Sudras, (ell within the exception to the
general rule against adoption of a sister's son-
It should be observed that Lord Chelmsford, in
giving the judgment of the Privy Council, said
that upon the objection that the adoption was
illegal, as the respondent was the adopter's
sister's son, ' very little was said ;' and he did not
discuss that point That case, therefore, is no
authority for the proposition that amongst
Vaishyas a sister's son may be adopted." Per
iVestropf, C.J., in Go pal Narhar Sapray p.
Hankant Ganesh Sapray I. L. Hep. 8
Bom. 273, 292.
Ram an and r. The Bam of Bengal.. . I, L.
Bep. 1 All, 377.
Overruled by Wilayat-un-Nissa ■■ Najib
un-Nissa I. L. Rep. 1 All. SS3.
See Appeal— Civil. 12.
Ramchandra v. Saraswatibai ..4 Horn. H- C.
Bap. A. 0. J. 73.
As to jurisdiction of Small Cause Court
not followed in Sidlingapa tr. Sidava.
I. L. Bep. 2 Bom. 624.
And Apaji v. Gangabai ..Ibid. 632.
Sec Hindu Law- Maintenance
of Widow. 15.
Ram Kishen Doss d. Hurkhoo Singh Roy. ..7
W. Bep. 329.
Distinguished in Ckutterdharbe Lall o.
Rah bel ashes Koer...I. L. Bep. 3
Cal. 318.
See Security Bond.
Overruled by Gumma v. Bhiku I. L.
Bep. Bom. 126.
See Limitation. 30.
Ramlal Thaki-rsiuas v. Lakhmichand 1
Bom. H. C. Bep. Appx. 61.
Followed in Johurra Bibee v. Sreegopal
Misser I. L. Bep. 1 Cal. 470
Sec Hindu Law Maintenance of
Widow. 9.
Ramlal Thakursidas v. Lakhmichand Muni-
ram, ..1 Bom. H. C. Bep. Appx. 71.
Followed In JoYKISTO CoWARjr. NlTTYANUND
NUNDY...L L. Bep. 8 Cal. 738.
See Hindu Law — Ancestral
Trade.
Ram Lochun Chuckerbutty v. Ram Soonder
Ckuckerbotty 20 W. Bep. 104.
Followed in Sumo Kumaki Debi v. Govind
Shaw Tanti...L L. Bep. 2 Cal. 418.
Sec Declaratory Decree. 0.
Ratan Trimback Pa til t. N. Hormusji...
Mioc. B. A. 2 of 1889.
Not followed in Shivlal Khubchand v.
Apaji Bhivrav...I. L. Bep. 2 Bom.
664.
See Civil Procedure Code, Act
VIH. of I860, i 338.
Ratanchand Shrichand v. Hanmantrav
Sadasiv 6 Bom. H. C. Bep. A. 0. J.
166.
Approved in Runjit Singh ». Mehbrban
Koeh.,.1. L. Bep. 3 Cal. 662,674;
3 Cal. Bep. 381.
See Appeal—Civil. 9-
Ratanchand Shrichand e. Hanmantrav
Shivbakas.,.6 Bom. H. C. Bep. A. C. J.
166.
" For myself I cannot regard it as an autho-
rity binding on me, and I consider myself free
to form my opinion on the case before me in
Court irrespective of it." Per Stuart,
i UDA BEGAM v. IMAM.UD.DIN...L L.
Bep. 2 AIL 74-88-
Reasut Hussein o Hadjee Abdoollah,..!. L.
Bep. 2 Cal. 131.
Tbe opinion of the Privy Council no doubt
places a very wide interpretation on the words
(''other good and sufficient reason in } 376 of
Act VIII. of 1S59"), but the opinion on this
point was not necessary for the decision of the
case, and may without impropriety be regarded
rather as a mere obiter dictum than as a binding
authority." Per Inncs, J,, in -Raman p. KARU-
natiia Tharakar-I. L. Bep. 2 Had. 10-12.
Reg. b. Bai Ratan. .,10 Bom. H.C.Rep. 168.
Followed in Empress ». Mannoo Tamoo-
LEE...1. L. Bep. 4 Cal. 696 ; 4 CaL
Bep. 187.
See Confession , 1.
Reg. v. Gobind Tewari ..I. L. Bep. 1 CaL
Sec Appeal— Criminal. 7.
mortized by Google
TABLE OF CASES.
Reg. v. Jagatmal I. L. Bep. 1 All. 16S.
Dissented from in Reg. *■ Gaji...I. L-
Rep, 1 Bom. 311.
See False Evidence.
Reg. v. Jaoat Mal I. L.Bep. 1 AH. 163.
Overruled by Empress v. Kashmiri Lal...
i. l. Bep. i All. eas.
See Criminal Procedure Code,
Act X. of 1878, J 473. 3.
Rbg. v. Jbtha Bala ..10 Bom. H. C, Rep. 68.
Dissented from in Reg. v. Rahimat...L Tj.
Rep. 1 Bom. 147.
See Compounding Offences. 6.
Reg. i-. Kalva bin Fakir.. .6 Bom. H.C.Kep.
Or. Ca. 84.
Followed in In the matter of Bhoo min-
es hwer Dutt..X L. Rep. 8 Cat. 631 ;
3 Cal. Bep. 60.
See Penal Code, $ 173.
Reo. ». Kultakam Singh. ..I. L. Bep. 1 All.
199.
Dissented from in Reg. v. Gaji ,.I. L.
Bep. 1 Bom. 311.
AndReo.v. Parsapa Ibid. 339.
See False Evidence.
Rbg. «. Kultaram Singh. ..L L Bep. 1 All.
139.
Overruled by Empress ». Kashmiri Lal...
I. L. Bep. 1 AIL 630-
See Criminal Procedure Code,
Act X. of 1873, i 473. 2.
Rsg. v. Meares 14 Bang. L. Bep. 106.
Ratio decidendi in — dissented from in
Feda Hosseik.-.I. L."Rep. 1. Cal. 431.
See Act VI. of 1874 f 6. 1.
Reg. v. Shivya L L, Bep. 1 Bom. 319.
Dissented from in Empress ». Rahajrva...
I. L. Bep. 3 Mad. D.
Reg. v. Subbana Gaundan...1 Had. H. C.
Bep. SO.
Followed in Empress v. Abul Hasan ... I
L Bep. 1 All. 497.
See Penal Code, } 311. 1.
Reg. e. Subbana Gaundah.,.1 Had. II. C,
Bep. 30.
Followed in Empress v. Sauk... I. L.
Bep. I All. 637.
See Penal Code,} all. 3.
Roshun M.
w Mah<
ST KuLEEN...7
W. Bep. 160.
Distinguished in Lalla Nowbut Lall v.
Lalla Jbwan Lall. ..I. L. Bep. 4
CaL 831 ; 3 Cal. Bep. 819.
See Hahomedan Law— Pre-
emption. 1.
Roval British Bank v. Turquand...5 Ell. &
Bl. 348 ; 6 Ibid. 837. '
Distinguished in Irvine v. Union Bank op
Australla.. L.Bep. 4 I. A. 86;
I. L. B. 3 CaL 380.
Under Power of Director to borrow and
mortgage.
Sak Makhan Lall Pandavv. Sah Koondun
Lall L. Bep. 2 1. A, 210.
Approved in Mahomed Ewaz e. Bmj Lall.
L. Bep. 4 I. A. 186.
Under Registration. 23.
Salu <r. RA]SANGji...aBom. H. 0. Bep. 162.
Doubted by Wettropf, C.J., in Moru if. Go-
pal L L. Bep. 3 Bom. 120.
See Appeal— Civil, 31.
Samuel v. Samuel.... 9 Jur. 223.
"I own that I don 'requite understand the
decision, or the ground on which it proceeded.
The report, however, of the judgment is extreme-
ly brief, consisting only of a few lines, and the
decision is not easy to reconcile with others that
have preceded and followed it" Per While, J.,
in In the matter of the Will of C. M, Hunter ...
L L. Bep. 4 Cat 420, 1878.
Samgappa Chambasapfa v. Sahebanna Kenge ■
DAPPA...7 Bom. H. O..Bep. A. a J. 141.
"That case would not be in accordance with
our view of the law." Markby, J, in Ahamudeen v.
Grish C Bunder Shahmut...I. L. Bep. 4 Cal.
860, 354.
Seetaram o. Dhumook Dharek Sahye 1
Hay, 260.
Followed in Janokee Debba s. Gopaitl
Acharjea L L. Bep. 2 Cal. 366.
See Hindu Law— Adoption. 3.
Sham Kant Bannekjbev. Baboo Gopallal
Tagorr 1 W. Bep. Civ. Bui. 838.
Disapproved of in Sheth Kahandas Na-
randass. Dhaiabhal. . I. L. Bep. 3
Bom. 182.
Diarized by Google
TABLE OF CASES.
SHAMLAL GHOSE v. SttKUNDBR Khan. 3 W.
Bep. 183.
Not followed in Arfunnessa ?. Peary
MoHUN MoOKERJEE 1. L- Bep. 1
Cal. 378.
See Onus Probandi. 3.
ShAHaPuRSHADRoyChOWDHRYit. HURRO PUR.
SHAD ROV CHOWnHRV..,10 Moo. I. A.
203 ; S. C. 3 W. Bep. P. C. 11.
Followed by Ainslie, Macpherson, and Mark-
by, JJ., and distinguished by Garth, C.
J., and Jackson, J., in Jooesk Chijncer
Dutto. Kalli Churn Dutt I. L.
Bep. 3 Cal. 30.
See Honey paid under Decree
subsequently supersedad.
Sheo Pkrshad Lallo. Thakoor Rai ,.H. C.
Bep. N. W. P. 1B68, p. 264,
Followed in Shaikh Ewae v. Mokuna
Bibi L L. Bep. 1 AM. 132.
See Pre-emption. 8.
Sheo Singh Rai v. Mussumut Dak ho ...L
Bep. 5 I. A 87.
Approved in Chotav Lall ». Chunno Lall.
L, Bep. 0 I. A. 15 ; I. L. Bep. 4
Cal. 744.
See Jain Law. 3.
Shiu Narain Bose v. Rah NidheeBose...9
W. Rep. 87.
Overruled by Rajkishore Lahoory v.
Gobind Ch under Lahoorv. ..I. L.
Bep. 1 Cal. 27 ; S. C. 24, W. Bep.
234; L. Bep. 4 L A. 153.
See Hindu Law — Inheritance-
Brother. 1.
Siva v. Ckbnaha 5 Mad. H. C. Bep. 417.
Not followed in Poona Kqoer...I. L. Bep.
I Cal. 101.
See Beview. 4.
Skinner p. Orde X L. Bep. 1 All. 230.
Reversed on appeal in. ..L.B. 6 I. A. 126.
See Petition for Leave to sue in
forma Pauperis.
SOHUN LAt.L P. GVA PAR5HAD...H. C. Rep. N.
W. P. 1B74, p. 293.
Followed in Puran Mal v. Ali Khan.,.1.
L. Bep. 1 All. 230.
&r Civil Procedure Code, Act
TIn. of 1859, * S60.1,
SOKHEE MONEE DbBIAV. BrIJORAJ MoOKERJEE.
17 W. Bep. 238.
Followed in HurroDurca Chowdhraih ■.
Sharrat Soondery Dabeea ...I. L.
Bep. 4 CaL 674.
See Execution of Decree. 20.
SoORJOHONEE DaVEE V. SuDDANAND MOHAPAT-
ter... 12 Beng. L. Bep. 304.
Approved in Krishna Bbharj Rov o. Bro-
JESWARI CHOWD.RANEE...L. Bep. 2 I.
A. 283; L L. B. 1 Cat 144;
25 W. B. 1.
See Bes Judicata. 9.
SrEEMUTTV RiBUTTY DoSSEE V. SlBCHUNDER
Mulltck 3 Moo. I. A. 1.
Explained in Musst. BhaGbutti Daee v.
CkowdhrvBholanathTkakoor...L.
B. 2 I. A. 256.
Sri Gajapathi Radhika v. Ski Gajapathi
Nilman...13 Moo. I. A. 497, 601 ; 6
Bong. L. Bep. 202 ; 14 W. Bep. F.
C.33.
Commented on and explained in Rhai v.
Govind 1. L. Bep. 1 Bom. 97.
Set Hindu Law— Inheritance —
Illegitimate Bon. 4.
Svitd Ameer Hossbin v. Sheo Suhab...19 W.
Bep. 338.
Followed in Z00LFUN BlBEE fr. RADHICA
Prosonno Ckunder.,,1, L. Bep. 3
CaL 560; l Cal. Bep. 388.
See Bight of Occupancy. 1.
Teeka Dharee Singh v. Mohur Singh... 7
W. Bep. 260.
Followed in Lalla Nowbut Lall ». Lalla
Jewan Lall. ..I. L. Bep. 4 CaL
831 ; 3 Cal. Bep. 319.
See Mahomed an Law— pre-emp-
tion. 1.
Thakur Prasad v. Ashan Ali. ...I. L. Bep.
1 ALL 668.
Dissented from by Stuart, C. J., in LTr»A
Bbgami. Imam-ud-Din ...I. L. Bep.
2 ALL 74.
Tilak Chukoer Rov v. Rah Luckheb Dossrk.
2 W. Bep. 41.
Diarized by Google
TABLE OF CASES.
smiled by Rajkiskore Lahoory v. Go.
bindChunder ( .a hooky ...I. L. Bep.
lCal.27; S. C. 24 W. Rep. 284 ;
L. Bep. 4 I. A. 153, n
Sec Hindu Law -Inheritance—
Brother. 1.
Timappa v. Parwesh
■a. ..5 Bom. H. C.
Bep. A. C. J. 130.
Disapproved of in Savitribai v. Luxmibai
I. L.Bep. S Bom. 1573.
See Hindu T. aw— Maintenance
of Widow. 14.
TlRUMALASAMMJ RedDI tr. RaMASAMMI ReDDI...
6 Had. H. C. Bep. 420.
Dissented from in Shiro Kumari Debt ?
GovmdShaw Tanti I. L. Bep.
9 Cal. 41R.
See Declaratory Decree. 0.
Vijia Rangam b. Lukshman.,.8 Bom. H. C.
Bep. O. C. J. 244.
As to the doctrine laid down in the judg-
ment of West, J., that, according to the Mitak-
shara, all property inherited by women is stri-
dhan, the High Court of Calcutta {Couch, C. J-,
and Ainslie, J.) say in Chotay Lull v. Ckunnao
Loll .L.B. 6 I. A. 10, p. 28.
" He lays down that the Mitakshara includes
in stridhan all property acquired by women by
inheritance, which is contrary to what had beei
laid down by Sir]. Arnould \a Bhatkar Trimback
Achatya. v. tfahadto Ramji (6 Bom- H, C. Rep.
O. C. J. l), and also to the decision of the Privy
Council in Bkugvandeen Doobey v. Myna Bait
(u Moo. I. A, 4S7). When we have the van.
0113 decisions of the Sudder Court here upon
the law which is applicable in this suit, and
the decision of the High Court at Madras (in
the Shivaganga cast, 6 Mad. H. C. Rep. 310)
upon a similar law, in which no substantial
difference can be pointed out with reference to
this question, we ought not to unsettle the law
which appears to have been received on this
side of India for the last fifty years on account
of the opinion of a Judge of the High Court of
Bombay, however learned he may be."
And the Privy Council, at p. 3Z, say that their
Lordships " agree in the observations which are
to be found at the end of the judgment of the
High Court, that Courts ought not to unsettle a
rule of inheritance affirmed by a long series of
decisions, unless it is manifestly opposed to law
Vinayak Anandrav v. Lakshhibai. ..1 Bom,
H. C. Bap. 117 126 ; 9 Moo. L A.
516 ; 8 W. Bep. B, C. 41.
Followed in Sakharam S. Adhikari o. Sita-
bai I. L. Bep. 3 Bom. 353.
AndDHONDuGuRAVir.GANGABAi... Ibid. 369.
See Hindu Law— Inheritance—
SUter.
Vinayak Vasudev,. Ritchie, Steuart&Co.
4 Bom. H. C. Bep. 0. C, J. 139.
Followed in Pearson v. Madhub Chunder
Ghosh I. L.Bep. 3 Cal. 887,11.
See Sherifi'u Poundage. 3.
Widow of Shukkur Sahai v. Rajah Kashi
Pkrshad L. Bep. 4 I. A. 198, n.
Approved in Gaum Shunkur v. Maharajah
of Bulk am pore L. Bep. 6 I. A. 1.
Under Act I. of 1869. 4.
Woods. Ward ..3 Ex. 478; 18 L. J. (Ex.)
SOS.
Approved in Rameshur Pershad Narain
Singh s. Koonj Behari Pattuic L.
Bep. 6 I. A. 38.
See Artificial Watercourse.
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D,oiti«d b» Google
DIGEST OF CASES REPORTED
INDIAN LAW REPORTS,
CALCUTTA SERIES, Vols. 1 to 4; BOMBAY SERIES, Vols. 1 to 3;
ALLAHABAD SERIES. Vols. I&2; MADRAS SERIES, Vols. 1 &2;
AND
LAW REPORTS. INDIAN APPEALS. Vols. 1 to 6.
ABANDONMENT OF CONFISCATION. ABANDONMENT OF MHtAS UIGHTS.
See Confiscation in Oudh. 3.
Prince Mirza Jehah v. Nawab
Assue Bahu L. Rep. 6
I. A. 78 ; LL Sep. 4 Cal.
727.
ABANDONMENT OF DEFENCE OF LI-
MITATION {UNDEB ACT XIV.
OF 1859).
Set Limitation. S.
Moru d. Gopal I. L. Bep. 3
Bom. 120.
ABANDONMENT OF EASEMENT.
See Easement, 1.
Shama Churn v. Taringv Churn.
I. L. Bep. 1 Cal. 423.
See Family Custom.
Rajkishen v. Rawjoy Surma. ..I.
L. Bep. 1 Cal. 186.
ABANDONMENT OF QBOUND OF
APPEAL.
Set Re vi aw. 11.
SaBAPATKI tr. SuBRAYA I. L.
Bep. 2 Mad. 68.
ABANDONMENT OF INFANT.
Sec Conviction on several Charges.
See Miras. 3. 4.
Tarachand v. Lukshman...L L.
Bep. 1 Bom. 91.
Joti Bhihrav v. Balu Bapuji...
IUd. 308.
ABANDONMENT BT MDtABDABS—
s — Razinama— Extinction o/Miras Rights.']
Mirasdar, addressed a raiinama to the
Mamlatdar resigning certain Jifiras\a.nds in favour
of L. (to whom at the same time he delivered
possession of the land), and containing no re-
servation or qualification -.—Held, that the
tranfer to L. was complete, and the right of B.
wholly extinguished, Tarachand Pirchand v.
LAKSHMAN BaVANI. West and Nanaikai Har-
ridas, JJ I. L. Bep. 1 Bom. 91, 1875.
3. Razinama — Abandonment o/Miras
Rights.'] A Mirasdar who has given in a rami-
nama is entitled to eject the tenant put into
possession by the Collector, provided he sue
within the period of limitation, and the ratinama
contains no stipulation whereby he expressly
abandons his Miras rights. Joti Bhihrav v.
Balu bin Bapuji. Warden and Ciibs, JJ.... I.
L. Bep. 1 Bom. 208, 1868.
ABATEMENT OF APPEAL — CIVIL.
Death of Appellant— Act VIII. of 1859, f 7J—
Right of Purchaser to carry on Special Appeal.]
A. sued B. in the Court of first instance, and
obtained a decree declaring A.'t right to a house.
The District Court in appeal reversed this decree
and rejected A.'s claim. The High Court re-
versed this decree and remanded the case. The
District Court, on remand, made a decree con-
D,gltlzed by G00gle
DIGEST OF CASES.
(
)
ABATEMENT OP APPEAL — CIVIL-
cantd.
firming the decree of the Court of first instanc
in A.'s favour. Subsequently to this last men
tinned decree B. sold the house to C. B. then
preferred a special appeal, but died before it was
heard .—Held, that under Act VIII. of 1859 C.
could not cany on the special appeal. At the
time of his purchase, B.'s alleged right as 0
had been pronounced against by a Court of
competent jurisdiction. What remained to him
was a right to challenge that decision by a
special appeal. On purchasing this right, re-
purchased it subject to the chance of A.'s title
becoming unimpeachable on account of B.'s
failing through death to make or carry on the
possible appeal, and not a right after B.'s death
to continue the litigation on his own account.
The property sued for, if it did not become res
religiasa, in the full sense of the Roman Law, so
soon as the parties were at issue, was yet so
bound when a decree had awarded it to the
plaintiff, that it could not effectively be assigned
to a third party so as to give a new term of
life to the litigation which, in the absence of the
assignment, would have died with B. Moresh-
warPhataks. KushabaShankroji. JvVitand
BayUy, JJ L L. B*p. 2 Bom. 248.
ABATEMENT OP APPEAL — CRIMI-
VAX.
Criminal Procedure Code, Act X. of 1872, , j 280.
tg-j— Death of Appellant.] The Criminal Pro-
cedure Code (Act X. of 1872) gives no right to
the heir, devisee, executor, or any other repre-
sentee of a deceased convict to lodge an appeal,
or continue an appeal already lodged. The ap.
peal lodged by the convict abates on his death.
(Semiall, J., diss.) But the High Court has the
right to call for the record and make such order
thereon
consider just.
Doncaji Andaji. Weshopp, C.J., and Mehill
and /Cembali, JJ...L L. Eep. 2 Bom. 664,
1878.
See Land held by Joint. Owners.
Empress h. Rajcoomar Sinc-h...
I. L. Rep. 3 Cal. 673 ; 2
Cal. Bep. 62.
ABATEMENT Oi'FUKLIC NTJISANCE-
5« Eight to»ue.lto5.
ABATEMENT OF RENT-SUIT FOB,
See Res Judicata. 10.
NOBO DoORQA J. FOYZHUX ..LL.
Rep. 1 Cal 202.
ABETMENT— Of Abetment.
See Abetment. 3.
Of Fabricating False Evidence.
See Fabricating False Evidence.
Empress v. Mula I. L. Rep.
2 Ail. IOC.
Of Bigamy.
See Abetment. S.
Of False Evidence— Presumption.
See Criminal Procedure Code,
Act X. of 1872, j 471. 2.
Reg. v. Baijoo Lall...I. L. Bep.
1 Cal. 450.
— Of Kidnapping.
See Abetment. 4.
Substantive Offence- -Convict ion of Prin.
cipal.
See Abetment. 1.
1. Substantive Offence— Conviction of
Principal.] The offence of abetment under the
Penal Code is a substantive offence. The
punishment when the culprit has been present
at the Commission of the principal offence, is the
same as for that offence ; and the trial of it is
not in any way dependent on the conviction of
the person charged with the principal offence.
The conviction of an abettor is, therefore, in
no way dependent on the conviction of the prin-
cipal. Rec. jr. Maruti Dada and others.
Wat and Nanatkai Harridas, JJ....I. L. Bep.
1 Bom. 16, 1875.
2. PenalCode, {{ lOqand^^ — Bigamy-']
A Mahomedan female infant, was given away
in marriage by A. S., one of her two paternal
uncles and legal guardians, to A. H. Shortly
afterwards, and while A. fi. was living the infant
was again given away in marriage by A. S. and
A. K., her other paternal uncle and legal guar-
dian, to D.\ but the infant herself was not pre-
sent at, and took no part in, the ceremony,
which A. K- caused to be performed in her name,
nor was she ever consulted or communicated
with, before the ceremony took place. A. K.
and A 5'., the guardians of the infant, were then
charged with having committed an offence
punishable under ff 109 and 404 of the Penal
Code.
Digitized byGOO^Ie
DIGEST OF CASES.
ABETHENT— contd.
At the trial before the Session Court A. S.
was acquitted, on the ground that he had taken
no part in the second marriage of the infant,
but A. K. was convicted of the offence charged.
Held, on appeal, that to establish a charge of
abetment under the Penal Code the accused
must be proved to have instigated or aided some
other person to commit the offence, or to have
engaged with another in a conspiracy for the
commission of the offence ; but here the acquit-
tal of A. S. put an end to the case of conspiracy,
for except with A. S. there was no evidence to
support a case of conspiracy ; and, (assuming
the validity of the former marriage, and the
accused's knowledge of it), though the accused
had committed an illegal act in disposing
of his Infant ward in marriage after he knew
tha*t she had been previously lawfully married,
ye* in doing this act he was, according to the
ovi" deuce, the sole actor, and the act, though
illegal, was not, if done by one person alone, an
offence provided for by the Penal Code.
The practice of instituting criminal proceed-
ings with a view to determining disputes arising
in cases of this class condemned. Empress v.
Abdool Kurreeu. Whitei.nA Prinsep, JJ-..I-
L. Rep. 4 Cal. 10 ; 3 Cal. Rep. 61, 1878.
3. — Of Abetment— Penal Cade, f log,
Bxpl. 2-4; f 37S, Expl. 5.] A. sought the aid
of B, with the intention of committing a theft
of the property of B.'s master. B., with the
knowledge and consent of his master, and for
the purpose of procuring A.'i punishment, aided
A. in carrying out his object. On the prosecu-
tion of A. for theft, — Held, that as the property
was 30 taken with the knowledge of the owner,
the offence of theft had not been committed.
Held, also, that the abetment of an abetment
being an offence, and the prisoner having
gated B. to do that which, if committed,
have been an offence, he, the prisoner
committed the offence of abetment,
which it was not necessary that the act abetted
should.be committed, and, therefore, that t hi
circumstance, that owing to the property being
removed with the knowledge of the 01
technical offence of theft had not been
ted, did not exonerated. Empress h. Troyi.uk ho
Nath CHOWDHRV. Jackson and White, JJ....L
T*. Rep. 4 Cal. 366 ; a Cal. Sep. 636, 1878.
4. Kidnapping— PenalCode.SS 116,363-]
The accused was convicted by the Magistrate
ABETMENT— eontd.
of abetting the kidnapping of a minor. The
accused, knowing that the minor had left home
ithout the consent of his parents, and at the
stigation of one Komaren, the actual kidnap-
per, undertook to convey the minor to Kandy,
Ceylon, and waa arrested at Trichinopoiy
on bis way there. The Session Judge reversed
the conviction, on the ground that there was
concert between the accused and Komaren
previous to the completion of the kidnapping by
the latter: — Held, that so long as the process of
taking the minor out of the keepingof his lawful
guardian continued, the offence of kidnapping
jgbt be abetted, and that in the present case
the conviction should be of an offence punishable
under jf 116 and 363 of the Penal Code. Reg.
tr. SamIA Kaundan. Morgan, C.J., an&Innes,).
I. L. Rep. 1 Had. 178, 1876.
ABSENCE 07 FORMAL FINDING ON
ISSUE DETERMTNED- -No ground
for Review.
See Review. 11.
Sabapathi v. Sabrava.,,1. L.
Rep. 2 Mad. 68.
ABSENCE 07 NOTICE TO 4UXT— Ob-
jection as to — not raised in Memorandum
of Special Appeal, not allowed at Hearing-
See Practice— Civil. 10.
Babajek v. Nakavan-.X. L. Rep,
S Bom. 340.
Sec Act XVIII. of 1860, 2.
Collector or Sba Customs o.
Punniar— LXh R. 1 Mad-
89.
See Champerty. 2.
Raj Coomar 11. Chunuer Canto.
L. Rep. 4 I. A. 33 ; I. L,
Rep. 2 Cal. 233.
See Damages. 4.
Raj Chiinder v. Shaha Soonderi.
I. L. Rep. 4 Cal. B83.
ABSENCE 07 VENDOR, REGISTRA-
TION IN.
Sec Registration. 2.
Sah Mukhun e- Sah Koondon...
L. Rep. 2 I. A. 210 j IB
Rang. L. Rep. 328 ; 34 W.
Rep. 73.
D,gltlzed by G00gle
< 7 )
DIGEST OF CASES.
ABSENTEE HEffi OF DECEASED HA.
HOMEDAN— When bound by Consent
Decree obtained by Creditor of Deceased
against Heirs in possession of Deceased's
Property.
See Hahomedan Law. 1.
ASSAMATHL'N NESSA H.RoY LuTCH-
mbput.L L. Eo.p 4 Cal.
142 ; 3 Cal. Rep. 223.
ABSOLUTE GIFT.
See Will. 9.
Administra tor-General of Ben-
gal -a. AicAR.,,1. J,. Rep. 3
Cal. 563.
ABUSE — Suit for Damages for — Parties.
See Parties to Suit. 6.
SUBHAIYARC. KRtSTNATYAR..,I. Ii.
Rop. 1 Had. 383.
ACCEPTANCE OP " DASTURI » BT
PUBLIC SERVANT.
See Penal Code, { 165.
Empress t. Kahpta Prasad...
I. L. Rep. 1 All. 580.
ACCEPTOR— Bankruptcy of.
See Procedure— Civil. 1.
Babant Rah. v. Kolahal...I. L,
Rep. 1 All. 392.
ACCOHHODATION ACCEPT OR-Subse"
quent Receipt of Consideration by — from
Drawer— Trust Deed for Benefitof Credi
tors executed by Drawer—Liability of—
See Principal and Surety. 4.
PoaoSEo. Bank op Bengal. .. I. L.
Rep. 3 Cal. 174.
ACCOHPLICE—
Corroboration of — Confession of Co-Ac-
See Evidence. 13.
Reg. v. Bud hit Nauru... 1. L. Rep.
1 Bom. 470.
Corroboration of— Unneeesary for Legality
of Conviction.
See Evidence. 13a.
Reg. v. Raw asa mi PadaYAcHi...
LL. Rep. 1 Had. 394.
—Illegally Pardoned — Proceedings against.
See Evidence. 3.
ACCOUNT— Balance of— Suit for— Jurisdic-
tion of Molussil Small Cause Courts.
See Small Cause Court— HofuttiL
7.
Dyesukee s. MuDHtlO ... I. L.
Rep. 1 Cal. 183.
Credit in.
See Letter* Patent, Bombay, 1866,
CI. 13. 1.
MllLCHAND r. SUGANCHAND...I.
L. Rep. 1 Bom. 33.
of Dharmakartaship — Right to.
Set Limitation. 64.
Manally v. Vaidelinqa.-.I. L.
Rep. 1 Had. 343.
See Bond to Secure Balance of Ac-
NARRAYAN v. MOTTILLAL I. L.
Rep. 1 Bom. 15.
Error in Statement of.
See Contract. 5.
Seth Gokuldass Gopaldass s.
M URU...L. Rep. S L A. 78 ;
L L. Rep. 3 Cal. 602; S
Cal. Rep. IS6.
Limitation— Principal and Agent— Conti-
nuous Account — Mutual Items.
See Limitation. 34.
Watson v. Aga Mehedeb Site
RAZEK...L. R.1L A. 846.
In Partition Suit.
See Hindu Law— Partition. 1.
Lakshhan Naik v. Ramchandka
Naik..,L L. Rep. 1 Bom.
661.
— Of Profits obtained by Infringement of
Patent — Limitation.
See Limitation. BO.
Kinmond v. Jackson. ..L L. Rep.
3 Cal, 17 ; 1 Cal. Rep. 66.
Reference to Commissioner to take — Effect
of.
See Account, 3, 3.
1.-
- Apportionment — Decree — • Construe-
•ndment of 'Decree."] The decree of the
rst instance directed the Commissioner
for taking Accounts to take an account of the
Reg. c. Hanhanta...I. L. Rep. 1 moneys paid by the plaintiff in Bombay during
Bom. 610. ; the period between the 24th January 1865 and the
Diarized by Google
DIGEST OF CASES.
ACCOUNT— could.
date of the institution of the suit, being, six
years, (or the use and at the request of the
defendants, in respect of kundis drawn On the
plaintiff by the defendants, and to allow credit
to the defendants for the sums in that behalf
mentioned in the particulars of demand annexed
to the plaint, and for all other sums, if any, in
respect of which the defendants should prove
themselves entitled to credit, wherever the same
might have become payable. The defendants
in their surcharge to the plaintiffs account
claimed credit for payments made by them
between the 25th January 1865 and 5th July
1865. The plaintiff admitted the receipt of the
payments mentioned in the defendants' sur-
charge, but claimed to appropriate them in satis.
faction of bis claim against the defendants in
respect of moneys due by them prior to the 24th
January 1865. The Commissioner held that the
plaintiff was entitled to make such appropria-
tion ; but the Court of first instance, on the
application of the defendants, made an order
directing the Commissioner not to allow the
plaintiffs to appropriate the payments mentioned
in the defendants' surcharge in satisfaction of
moneys due by them before the 24th January
1865, and explained the order of reference to
mean that the whole of the account prior to the
six years before the filing of the suit should be
wiped wit:— Held, that the
upon the decree by the Cor
rect- Where the Court of first instance puts a
certain construction on its own decree, which the
Appellate Court thinks wrong, and the words of
the decree admit of another construction which
the Appellate Court thinks right, the Appellate
Court will put the latter construction on the
decree. Hihji Jiha e. Naran Mui.ji. Westropp,
C J., and Sargent, J. ..I, L. Hep. 1 Bom. 1,
1878.
3. Reference to Commissioner— Effect of
—Act VIII. of 1859,, 181.] In a suit for an
account, it was ordered by consent of the parties
that the case should be referred to a Commis-
sioner to take accounts, who in taking them was
to decide upon all questions of fact, whether as
to the delivery of certain merchandize, or the
value of the merchandize delivered, or other-
wise, with full power for the purposes of the
investigation ; and that if any questions of law
should arise and could not be settled or disposed
of before the Commissioner, they were to be
submitted to the Court :—
ACCOTJNT-<ro«W.
Held, that this was a reference different from
the ordinary reference to a Commissioner to
examine accounts under { 181 of Act VIII. of
1859. Whether it would be competent to the,
Court to re-open a question of account against
a clear finding upon a question of fact relating
to the account, and made by the Commissioner
upon the evidence properly before him, guare.
Watson v. Asa Mbhedes Skekazes, L.
Bep. 1 1. A. 846, 1874.
S. C- under Limitation. 84.
8- Power of Commissioner to groMtCerti-
ficates— Supreme Court Rules (Equity) ,371 and
45°-] A suit was, by an order of the High Court,
referred to the Commissioner for taking Accounts
" to take an account between the parties as
prayed for in the plaint and written statement
respectively, and to ascertain and report what
balance, if any, was due from or by either of
them to the other." In the inquiry before the
Commissioner the defendants alleged that the
accounts between them and the plaintiff had been
adjusted in i860 and 1861. Tbe plaintiffs de-
nied the adjustment, and evidence was taken on
the point Neither in the plaint, written state-
ment, or decree or order of reference, was any
question of adjustment of accounts raised or
mentioned. One of the plaintiff's witnesses,
who had been in the service of the defendants,
produced a copy letter. book containing copies of
letters, which he alleged he wrote to the defend-
ants. Tbe plaintiffs tendered the copy of one
of those letters in evidence. The defendants
objected to its admissibility, on the ground of
its irrelevancy to the question whether an adjust,
ment had taken place as alleged. Tbe Assistant
Commissioner admitted the letter in evidence,
and at the defendant's request granted a certifi-
cate under Rule 371 (Supreme Court Rules),
certifying that the Commissioner had decided to
admit in evidence the press copy of the letter-
The certificate did not show, on the face of it,
bow the question was important, or how it affect-
ed the inquiry being held, nor did the Commis-
sioner state that he had any doubt as to the con-
struction of the order of reference, or as to the
correctness of his decision admitting the press
copy, or that he desired the opinion of the Court
on the question decided by him.
On motion by the defendant, to overrule th*
decision of the Assistant Commissioner, and for
a declaration that the said letter was inadmis-
sible in evidence :—
D,„i„.db»Googlc
DIGEST OF CASES.
ACCOUNT— amid.
fluid, that the application was irregular and
not in accordance with the practice and proce-
dure of the Court, and must be refused with
costs: The Court was not bound because the
Commissioner had certified that be had admit-
ted a certain letter in evidence, either to uphold
or reverse bis decision, or consider it in anyway,
till he had arrived at, and certified, something
which could be called a result, either of the
whole inquiry or of some part or branch of it.
The general nature of a certificate or report,
whether general or separate, is that it should in
the case of a general certificate comprise the
result of all the proceedings under the decree or
order of reference, or, in the case of a separate
certificate or report, that it should comprise the
result of some or one of such proceedings.
Quart — Whether, where a suit has been re-
ferred to the Commissioner for the purpose of
having accounts taken, such accounts, in
absence of any direction in the decree or order
of reference, that stated or settled account
not to be disturbed, should not be taken without
regard to any previous accounts stated or settled
between the parties.
RuSTOUjI BlJBjORJl v. KE3SOWJI NaIK. Green,
J....L L. Hep. 3 Bom. 161, 1876-
S. C. under Civil Procedure Code,
Act X. of 1877, ( 8.
account cuskbnt.
See Limitation. 84.
Watson v. Aoa Mehedee Shb-
razee ..L. Sep. 1 I. A.
349.
ACCOUNT IN REDEMPTION SUIT—
Interest — Hindu Law — Rule of Dam-
Dupat.
See Hindu Law— Inter eat. 8.
And see Mortgage. 8.
RAUCHAHDRA v. BHIMRAV...L L
Bop. 1 Bom. 577.
ACCOUNT BOOKS— Inspection of.
See Inspection. 1.
HaJI Jakarta v. Haji Cassim
I. L. Rep. 1 Bom. 466.
1. Evidence Act I. of 187a, ff 31 and
34— Entries by person having no personal Know-
ledge— Account kept by Servant or Agent of Firm
relevant as Admission.'] The Indian rule of
evidence (Evidence Act, ( 33, CI. 3, and f 34)
ACCOUNT BOOKS-cmrrd.
simply requires that entries in accounts should,
in order to be relevant, be regularly kept in the
coins* of business; and though it may do doubt be
important to show that the person making or dic-
tating the entries had, or bad not, personal know-
ledge of the fact stated, that in a question which,
according to the Indian rule of evidence, affects
the value, not the admissibility of the entries.
Account-books not proved to have been regu-
larly kept in the course of business, but proved
to have been kept by a servant, or agent ap-
pointed for that purpose, of a firm of contractors,
are relevant as admissions against the firm.
Rao. e. HaHMAHTA. Melvill *nd Kembtdt, J] ...
I. L. Rep. 1 Bom. 010, 1877.
S. C. under Evidence, fl,
See limitation. 47.
Hahhamtlal Motichand V, Ra-
habhai.,.L L. Bop. 8 Bom.
198.
ACCOUNTS— Motion to vary or discharge
Report of Commissioner for taking.
See Practica-avil. 7.
Suhak Ahmed ». Haji Ismail..
I. L. Bop. 1 Bom. 158.
— Order of Reference to Commissioner for
taking— Manner of Taking — Adjusted
Accounts.
See Account 3.
Rustomji Barjorji «. Knssowji
Naik...I. L. Sep. 8 Bom.
10L
Partnership— Suit for Dissolution and.
Set Jurisdiction. 8,
Ramasaui cThbhuvbhcadasami.
L X. Hep. 1 Had. 340.
ACCHETION.
See He-formation of Submerged
Land.
HURSUBAI V. SVUD LOOTE...L.
Hep. 9 1. A. 36 ; 14 Bang.
L. B.268; 23W.H.8.
Riparian Proprietors— Beng. Reg. XI. of
1835, H 3 and 4, CI- I, *— Effect of sudden
Change of Course of Boundary River.'] The
lands in suit (in Tirhoot) were settled under
Reg. XI. of 1835, f 4, CI. I, with the
Diarized by Google
DIGEST OF CASES.
ACCRETION— amtd.
plaintiffs predecessor in 1S37, as the proprietor
of an estate to which the lands had become an
accretion by gradual accession, and the plain-
tiffs continued in possession thereof till the
expiration of the settlement in 1847, which was
made on the same principle. Prior to the renew-
al of the settlement in 1857, the river which
was to the south of the plaintiff's Zemindary in
Tirhoot, and to the north of the defendant's in
Sarun, had suddenly and so competely changed
its course that the lands in suit, which were
formerly on the north side of the river, were
capable of being identified on the south side,
and were notwithstanding summarily settled
with the defendant, who obtained possession of
Held, that in the absence of proof of usage
within the meaning of f 3 of the Regulation,
that the river should be not merely the boun.
dary between the two districts of Tirhoot and
Sarun, but also the boundary between the two
Zemindaries, the plaintiffs were entitled to the
lands. RtioHooBUR Dyal Sahoo t>. Mahara-
jah Kishsh Pertab Sahe...L. Rep. 6 I. A.
811, 1879.
ACOTTHTOATIOVS BY HINDU
WIDOW.
See Hindu Lair— Alienation by
Widow. 1.
MUSST. BHAGBUYTt DaEE r. CHOW-
dhry.BholanathThakook ...
1. Rep. 3 I. A. 286 ; L L,
Bap. 1 Oat. 104,
ACCUSED PERSON— Convicted Person it
See Criminal Procedure Code-, Act
X.of 1872, ( 890. 1.
Reg. v. Thakur Parshad...L L.
Rep. 1 All. 151.
— Discharge of —Revival of— Prosecution.
See Compounding Offence*. 6.
Impx. 1;, Devama.-.L L. Sep. 1
Bom, 64.
See Criminal Procedure Code, Act
X. of 18 73, f 143.1.
Iupx.u Gowdapa...I. I., Rep, 2.
Bom. 884.
Set Criminal Procedure Code, Act
X of 1872, j 395.1.
Dijahub. Durr...I. L. Bep. 4
OaL647.
Set The Oeaea under Revival of
Prosecution.
ACCUSED PERSON— eontd.
— — Evidence of an — Illegally Pardoned.
See Evidence. 9. 3. 4.
Reo. v. Hakuanta...!. L. Bep.
1 Bom. 010.
Emfrhss v. Ashgar Ali.,.1. L.
Rep. 3 AIL 360.
Empress e. Karim... I. L. a. 9
All. 886.
Examination of — Defectively Recorded.
See Evidence. 19. 14.
Reo. v. Shiva... L L. Bep. 1
Bom. 319.
Empress v. Naimoo Tamoler...
L L. Rep. 4 Oal 696.
See Criminal Procedure Code,
ActX- of 1872, f 122. 1. 8.
Impx. e. Malka I. L. Rep. 9
Bom, 648.
Empress v. Ramanjiya I. L.
Rep. 9 Had. B.
Right of — to Recall and Cross-examine
Witnesses for Prosecution.
See Practice— Criminal. 1.
Empress v. Baldeo Sahai...I.
L. Rep. 3 All. 888.
ACKNOWLEDGMENT OP BROTHER-
HOOD.
See Mahomed an Law— Acknow-
ledgment of Brotherhood.
Mirza HiMHur Bahadoor v.
Mussamut Sahebzadkb Beg am.
L. Rep. 1 X. A. 88,
ACKNOWLEDGMENT OP DEBT.
Bond in Consideration of Barred Debt.
See Limitation. 43.
Raghojeb v. Abdul...L L, R.
1 Bom. 590.
. Signature— Agent~Aci IX. of 1881, f ».]
In a suit to recover the balance of an account
of the transactions between the plaintiff and
defendant, the plaintiff, with reference to certain
items of his claim which would otherwise have
been baned by limitation, relied on a letter
written by the defendant's gamashtaby the de-
fendant's direction in the following; terms: —
"Written by Babu Lai" (the defendant) "to
Shah Benarsi Das" (the plaintiff]. "1 have
received my account, in which you have struck a
balance of Rs. 17,679-3-0. The account is
correct, but it has not been running for the last
two or three years, and my papers are at
Laahkar. I shall send for the paper from Lash-
Itar in Phagun, and, after examining them, shall
Digitized byGOOC^Ie
( 15 )
DIGEST OF CASES.
( »6 )
ACKNOWLEDGMENT 07 DEBT— contd.
make pucka debit and credit entries in my
accounts, and shall write to you to do the
then I shall make arrangement for the money.
* * * I shall examine (he accounts according ti
the terms agreed upon by ns. We shall givt
credit (or any mistake on either side. All right.
Magser Sudi loth, Sambat 1931. If there be
any mistake, credit shall be given or taken.
The latter portion of this letter commencing
from the words "AIL right," was in the hand-
writing of the defendant himself : —
Held, ul, that the effect of the letter
admit the existence of a debt due by the sender
to the person addressed. While admitting that
the account rendered was on the face of it
correct, the sender of the letter reserved to
himself the right of testing the account by his
own books before finally allowing it to be
correct, and then promising to pay what may
be due at a time stated, and such an acknc
iedgment was a sufficient acknowledgment
satisfy the Limitation Act IX. of 1871, { XO.
and, whenever the maker of an instrume
or bis agent acting with authority, introduces
the name of the maker with a view to authenti-
cate the instrument as the instrument of the
maker, such an introduction of the name is a
sufficient signature to satisfy the statute ; and
that the heading of the above letter was, there.
Fore, a sufficient signature thereof, within the
meaning of the Limitation Act; and the defend-
ant's admission that the letter was written by
his gomaskta \>y his orders, and the circumstance
that he added the concluding paragraph, was
sufficient evidence that such heading was written
by a duly authorised agent. The letter, there,
fore, constituted a sufficient acknowledgment
of the debt to satisfy the Act. Mathura Das
«r. Babu Lal. Turner, C.J. (Offg.), and Pearson,
J....L L. Rep. 1 All. 683, 1678.
ACKNOWLEDGMENT 07 DEBT ST
JUDGMENT DEBTOR.
See Kiatbandi.
Heera Lallv Dhunput.. I. L. Rep.
4Cal.500;3 Cal. Hep. 654.
See Limitation. 43. 44.
Kallv Pkosonno Hazra o. Heera
Lall Mundle...L L. Rep.
3 Cal. 466.
munool prashad dlchit *.
SkamaKantoLahorvChow-
dhrv I. L. Rep. 1 Cal.
708.
ACKNOWLEDGMENT 07 MORTGA-
GOR'S TITLE— Act IX. 0/1871, Sch. H.,Art.
148.] In a suit brought by the plaintiffs to
redeem a mortgage of certain lands alleged to
have been made by their ancestors in 1S11, it
appeared that in 1841 the ancestors of the
defendants had signed a Khevat or record of
rights, in which no mention of the nature
of the mortgage or of the mortgagors was
made, but in which they were described as
mortgagees, and as holding certain shares, but
there was no record of the names of the owners of
those shares. The defendants' ancestors had
also in that year signed the Khatanni Skara
asamvaar, which showed the rates of rent pay-
able by the tenants, and in which they were
also described as mortgagees, and which con-
tained a note by the officer making the settle-
:, that " the parties in possession are mort-
gagees, but the amount of the mortgage and its
duration are unknown ; it occurred before the
ritish occupation" : —
Held by Turner, C.J. (Offg.), and (Hdfidd, J.,
(bat there had been a sufficient acknowledgment
of the mortgagor's right to redeem within the
meaning of Act IX. of iS7i,;Sched. II., Art. 148.
acknowledgment that a mortgage is a sub-
sisting mortgage is an acknowledgment of the
mortgagor's right to redeem, if be establishes
The law of India does not require
that the acknowledgment should be given to the
mortgagor.
■son, J., that an acknowledgment of a
mortgage tenure is by implication an acknowledge
mentof the titleof an owner; and other evidence
may be admitted to show who is the person
possessing that title to whom the acknowledg-
ment refers. An express acknowledgment of
the title of any particular person, or of his right
By Sfankie}., contra: — Any one who desires
take his claim out of the operation of Act
IX. of 1871, Sched II., Art. 148, must show a
nd express acknowledgment in writing
itle of the mortgagor, or of his right to
and this acknowledgment must be
unqualified and made touching the mortgage,
and cannot be implied from a general admis-
in the present case, of the accuracy of
settlement records dealing with a great variety
Daia Chahd «. Sarfaraz...I. L.
Rep. 1 AIL 117, 1875.
-Act XIV. of rS59,$ 1, fit 15— Act
IX. of 1871, Sched. //., Art 148— Redemption—
Digitized byGOO^Ie
DIGEST OF CASES.
ACKNOWLEDGMENT OP MORTGA-
GOR'S TITLE— amid.
Acknowledgment made before iSjQ.] In a suit
tot redemption of mortgaged property, the
plaintiffs, the representatives of the mortgagors,
relied on an acknowledgment of the mortga-
gor's title contained in an entry in the settle,
ment records of the year 1841, which was
attested by the representatives of the mortga-
gees, the defendants in the suit : and the lower
Courts having differed as to whether the ac-
knowledgment was sufficient without proof that
it was made within sixty years from the date of
the alleged mortgage ; —
Held, that before the enactment of CI. 15, f
1 of Act XIV. of 1859, there was no. limitation
to suits for redemption of mortgage of landed
property. In 1841. therefore, when theacknow
ledgment found in the settlement records was
made by the defendants or tbeir forefathers,
that they held the property in suit as mortga.
gees, there was nothing in the law to preclude
the mortgagor from suing for the redemption of
the mortgage. In other words, the right ac-
knowledged was a right not extinguished by
lapse of time, but still subsisting ; the acknow-
ledgment fulfilled the intention and satisfied the
requisition of the clause in Art. 148, Sched.
of Act IX- of 1871, modifying the provisions of
CI. I J, * I of Act XIV. of [859, and rendered i
unnecessary to inquire and ascertain when th<
mortgage, acknowledged in 1841, was actually
made. Daia Chand v, Sarfaraz All Pearsot
and Spankie, Jj- L L. Sep. 1 AH. 435, 1877.
3. Signal by Agent— Act XIV. 0/1850—
Act IX. 0/ 1871, Sched. II., Art. 148.] Held, fol-
lowing Luckmet Butsh Roy v. Runjeet Roy Pan-
day (13 Beng. L. Rep. 177) , that an acknowledg-
ment of the title of a mortgagor, or of his right
of redemption, signed by the mortgagee's agent,
is not sufficient, under Art. 14S, Sched. II. of
Act IX. of 1871, to create a new period of
tation. Rahmahi Bibi v, Hulasa Koar.
Pearson and Turner, JJ-.l L. Rep. 1 All.
643, 1878.
ACKNOWLEDGMENT OF BECKDPT
OF CONSIDERATION FOB BALE
OF LAND.
See Begietration. 19.
Valaji v. Thomas... L L. Rep. 1
Bom. 190.
ACKNOWLEDGMENT OF RECEIPT
OF PART-PAYMENT OF DEBT
ON MORTGAGE BOND.
See Registration. 23.
Damp Singh v- Durga Prasad...
I. L. Bep. 1 AIL 442.
ACKNOWLEDGMENT OF SIGNA-
TURE OF TESTATOR.
See Indian Succession Act X.
of 1886, S 50, CI. 8. 1.
Manikbai «. Horhasji...I. L.
Rop. 1 Bom. 647.
ACQUIESCENCE.
See Attorney and Client. S.
MONOHUR DASS *. RoMONAUTH LAW.
I. L. Rep. 3 Ce.1. 473.
Sec Execution of Decree. 1.
Baic-a Prasad t. Ahmad Alt...
L L. Bep. 1 All. 363.
See Mortgage. 22.
Moran v. Mirru Eijieb.-I. L.
Rep. 3 CeJL 58.
Arbitration— Miscarriage of Arbitrators.
See Arbitration. 7.
Chowdhki Murtaza Hossbih v.
Musst. Bibi Brchunnissa...
L. Rep. SLA. 309.
— In Interruption of Easement.
See Limitation. 48.
StIBBRAMANIYA A WAR V. RAMA-
chandraRau...!. L.Bap. 1
Mad. 336, 389.
In Obstruction to Ancient Windows.
See Mandatory Injunction.
Jaunadas v. AtmUah...L L. Rep.
2 Bom. 133.
1. —Delay— Lathes— Estofifiel— limitation.']
There must be something more than a mere
delay in instituting proceedings to deprive a
man of his legal remedies. But the opinion ex.
pressed in Rama Ran v. Raja Rau (a Mad. H. C.
Rep. 114, p. 116,) that " the equitable doctrine
of laches and acquiescence is not applicable to
suits in the Mofussil for which a period of limi-
tation is provided by the Limitation Act" is not
to be adopted without qualification. A distinc-
tion must be made between those cases in which
a suitor seeks some relief which, if he proves
his case, the Court is bound to giant him, and
the cases in which he seeks relief which the
Diarized by Google
DIGEST OF CASES.
ACQtTIE SCBNCE— con Id.
Court has discretion to grant or refuse. When -
a suitor has a right to demand relief, a stronger
case must be made out against him than such
mere tardiness in seeking a remedy which might
justify a Court in refusing relief when It has a .
discretion to grant or refuse it. With this quali-
fication, the dictum in Ptddamuthulaty v- N.
Timma Reddy (a Mad. H. C Rep. 270, p. 373.)
that " it may be taken as the law both of Courts
of law and equity that mere laches, short of the
period prescribed by the Statute of Limitation, is "
no bar whatever to the enforcement of a right
absolutely vested in the plaintiff at the period
of suit," assented to.
But where there is more than mere laches,
where there is conduct or language inducing a
reasonable belief that a right is foregone, the "
party who acts on the belief so induced, and
whose position is altered by this belief, Is enti-
tled in India, as in other countries, to plead
acquiescence, and if the plea is sufficiently
proved, it ought to be held a good answer to an _
action, though the plaintiff may have brought
the suit within the period prescribed by the law
of limitation.
Where, therefore, the defendants took posses- .
sion of, and erected buildings on, land which
they knew to belong to the plaintiff, without
asking the plaintiff's consent, and the plaintiff,
knowing that the defendants were building on
the land, abstained from commencing proceed-
ings against them for two years : — Held, in a
suit brought to eject the defendants and to
have the building materials removed, that under
the circumstances the delay in the institution
of the suit did not deprive the plaintiff of the
right to relief. Uda Bbgah v- Iuam-uddin.
Turner, C. ]. (Offg), and OldfiM, J...X L.
Sep. 1 All. 83, 1876.
ACQUITTAL- -Appeal against.
See Hi gh Court Criminal Procedure,
Act I. of 1875, ( 147. 2.
Corporation of Calcutta 0. "
Bhkecunbam Napitt.,.1. Ii.
Rep. 9 Cal. 280.
— Appeal from— by Jury — Right of Govern-
Stt Appeal -Criminal. 8,
Impx. v. Hark.,1. 1* Eep. 9
Bom. 528, n.
ACQUITTAL— con td.
- Appeal from— Limitation.
See Appeal— Criminal. 5.
Empress*. Jyadulla.. . I. L. Sep.
S Cal. 486.
- Appeal from— Preferred by Junior Govern,
ment Pleader.
See Appeal— Criminal. 4.
Empress v. Judoonath Gangoo-
LV...I. L. Sep. S Cal 978.
- Arrest by Magistrate Pending Appeal
against — Power of High Court.
See Criminal Procedure Code, Act
X. of 1872, i 397. fl.
Req. v. Gholam Ismail... I. L.
Sep. 1 All. 1.
See Appeal— Criminal. 6.
Reg. v. Gobin Tbwari...I. L.Bep.
. lCaLSSl.
—Judgment of.
See Appeal— Criminal. 4.
Express v. Juooohath Gahgoolv.
I. L. Eep. 9 Cal. 978.
- By Jury— Reference by Sessions Judge.
See Criminal Procedure Code, Act
X. of 1878, f 968. 1. 9. 3. 4.
Impx. p. Khandrrao.,.I. L. Rep,
1 Bom. 10.
Impjc.o. Bhavaot Ibid. 096.
Empress o. Harai Mirdha...I. L.
Bep. 8 Cal. 189.
Empress v. Sahab RAE...Ibid.
628.
- Power of High Court to interfere with an—
where no Appeal by Government.
See Criminal Procedure Code, Act
X. of 1872, f 297. 6.
Empress v. Dwarkahath Chow.
0HRV...I. lb Bep, 9 CaL
899, 401.
- Power of High Court as a Court of Revi-
sion to interfere with an.
See Criminal Procedure Code, Act
X, of 1872, (297. 1.3. S.
Hardeo...I. L. Bep. 1 All. 139.
Aurokiam...!. L. Bep. 2 Mad.
33.
Empress u. Miyaji Ahmed... I. L.
Bep. 8 Bom, ISO.
Diarized by Google
DIGEST OF CASES.
ACQUITTAL— contd.
Revision of— Right of Private Prosecutor
to apply for
See Narain Das. ..I. Xi. Bep. 1 All.
610.
Sea Criminal Procedure Code, Act
X. of 1873, {297.1.3.
Hakdeo...L L. Bep. I All. 189.
Aurokiam...L L. Bep. 2 Mad.
SB.
Without asking Opinion of Assessors.
ACQUITTAL OF PBINCIPAL- -Abetment']
The offence of abetment under the Penal Code
is a substantive offence, and the acquittal of the
principal is no bar to the conviction of the
abettor. Reg. v. Maruti Dad* and others.
West and Nanabhai Harridos, JJ....L L. Sep. 1
Bom. 15, 1873.
S. C- under Abetment.
ACT XVL OP 1838— Proceeding under— not
conclusive in Questions of Title.
See Bombay Act V. of 1864.
BaSAPPA V. LAKSHMAPPA...I. L.
Sep. 1 Bom. 624.
ACT XXXII. OP 1889— f I— Interest on
Mesne Profits-
Set Interest. 13.
HURROPERSAUD V. SKAMAPBRSAUD...L.
Bep. 5 I. A. 31 ; a 0.1. L. Bep.
3 Cal. 664 ; 1 Cat, Bep. .489.
ACT XX. OP 1841— Certificate under.
See Certificate to collect Debte.
Trebpoorasoonderv v. Deben-
deonai-h...!. L. Bep. 2 CaL
45.
ACT V. OP 1843— Mahomedan Law—Slavery
— Wiila— Heritable Rights of Emancipator of
Store.'] One A., a Mahomedan, died in i
leaving two wives, N. and P., the fornv
whom had been bis slave but had
emancipated by him previous to her marr
JV. died in 1857. In a suit by a person claiming
as sister and heiress of one of A.'s residuaries.
against the granddaughter of N., to recover the
property left by her, On the ground that, accord-
ing to the Mahomedan Law of Willa, she was
entitled thereto, to the exclusion of the defend.
ACT V. OP 1848-««W.
Held, that it was tbe intention of the Legisla-
re in passing Act V. of 1843 to relieve all
persons then subject thereto from all the dis-
rising out of the status of slavery ; and
that, assuming that according to the Mahomedan
Law of Willa the emancipator of a purchased
slave is entitled to succeed and take the property
of which such slave dies possessed or entitled to,
the disherison of her own natural heirs ; such
right of inheritance was taken away by Act V.
of rS43, $ 3. That Act was in force at the time
of N.'s death ; and the question who was entitled
succeed to her property was determinable
by the law as it stood when the succession
opened.
No vested interest had been acquired previous
the passing of the Act by the unascertained
persons who might at N.'s death be the then
residuary heirs of her husband ; nor did he, by
the act of emancipation, acquire a vested right
which the statute could not, except, by express
id retrospective words, take away.
In construing this remedial statute the widest
aeration ought to be given to it which its
nguage will permit. The words of i 3, " that
the person from whom the property may be
derived was a slave," may well be taken to apply
uiy person who at any time had been a slave.
Sayad Mir Ujmudin Khan v. Zia-ul-Nissa
Eegam.-.L. Bep. 6 I. A. 137, 187B; 1. L.
Bep. 3 Bom. 432.
ACT I. OP 1845, f 31— Sate for Arrears of
Revenue Pwchase by Manager of Joint Hindu
Family in his Dron name.'] A purchase at a sale
s of revenue under Act I. of 184 5 made
by the managing member of a joint Hindu family
vn name, but on behalf of the joint
family, is not affected by i 21 of that Act, and
ithstanding anything contained therein, the
members of the joint family may sue to enforce
ights acquired by them under such purchase as
igainst the managing member, though he is the
ole certified purchaser. Toondun Singh v.
POKHNARAIN SlNGH...L. Bep. 1 I. A. 343,
1874 ; 23 W. B. 199.
S. C. under Beview. 12.
ACT XIX. OP 1844.
See Issues. 1.
Apava v. Rama,., I. L. Bep.
D.g.t.zsdbvGoOgle
DIGEST OF CASES.
ACT IX. OF 1847.
See Settlement by Bcvenue Autho
Narrain Chances e. Taylor. ..I.
L. Rep. 4 CM. 103 ; 3 Cal.
Eep. 161,
ACT IX. 07 1850— { ij— Title to Immove.
able Property— Jurisdiction.
SsSniallOauHoCoiirt— Presidency
Town. 3.
Nowla Ooha ». Walji Kahwji...
L I*. Eap. 2 Bom. 91.
— — f 34 — Splitting Cause of Action — Trades,
man's Accounts.
See Small Cause Court— Presidency
Town. 4.
Cassum Jooka o. Thijcker Lilla-
dhuk L L. Eep. SBom.
' 670.
— { 43— Power to Restore Case struck off for
Default in Appearance.
See Small Cause Court — Presidency
Town. 1.
Sib Chundbr v. Kissen Dval...
I. L. Bep. 1 Cal. 478.
"~-l S8- " Good* and Chattels"— Oil and Flour
Mills and Engine and Boiler.
See Fixtures.
Miller 11. Brindabun...I. L. Hep.
4 Cal. 046; 4 Gal. Bep.
460.
(78.
See Execution of Decree. 34,
In re Jagjtvan Nanabhov...
I. L. Bep. 1 Bom. 82.
— 91 — Title to Immoveable Property — Juris-
diction.
See Small Cause Court— Presidency
Town. 3.
Nowla Ooha v. Bala Dhurm aj ee
I. L. Bep. 3 Bom. 81.
ACT XVIH. OP 1860 — Jurisdiction— Good
Faith.-] Under the provisions of Act XVIII. of
1S50, i t, no person acting judicially is liable for
an act done or ordered to be done by biro in the
discharge of his judicial duty within the limits of
his jurisdiction. In such a case the question
whether he acted in good faith does not arise.
Meghhaj t. ZakikHussain. Turner and Spanhie,
JJ I. L. Bep. 1 All. 380, 1876.
ACT XVIII. 07 WSO—eontd.
3. Good Faifh— Suit against 0$ctr of
Sea Customs at Madras for act done without
Jurisdiction — Malice— Reasonable and Probable
Cause— Act VI. 0/1863.] The plaintiff in this
case was a native merchant of Ceylon, residing
in, and subject to the laws of that island, and not
to the law of British India, and traded between
Jaffna, where he resided, and Madras and other
Indian ports, but had not been to Madras or
other Indian port since the year 1850. The de-
fendant was the Collector of Sea Customs in
Madras. In the year 1873, having received some
information that a certain vessel belonging to
the plaintiff had brought opium to Jaffna, in
Ceylon, on her voyage from Madras In July 1872,
which information led the defendant to the, con-
clusion that the opium was really consigned to
the plaintiff in the name of another person, the
defendant, without taking any legal advice,
without making any inquiry of the plaintiff,
or his agent at Madras, and without giving
the plaintiff any notice of the proceeding
against him, or any opportunity of being heard,
telegraphed to the plaintiff in Ceylon, in
October 1S73, that he was fined Rs. 50,000 for
having smuggled opium in July 1872, and pro.
ceededto seize and sell certain property of the
plaintiff then in Madras to satisfy this fine, which
fine and seizure the defendant alleged was im-
posed and made under the provisions of Act VI-
of 1863. In a suit brought by the plaintiff for
damages for the wrongful and illegal fining of
the plaintiff, and the seizure and conversion of
his goods by the defendant, the plaint did not,
except incidentally in the prayer for relief, Con.
in any allegation that the defendant acted
maliciously and without reasonable and probable
Held, that the act of the defendant being in its
iture judicial, if he acted within bis jurisdic-
>n, would not render him liable to suit, even
though the act was done maliciously ; if, on
the other hand, he acted without jurisdiction, his
liability would depend, not on whether the act
ious and without reasonable and pro-
bable cause, but on whether it was within the
protection of Act XVIII. of 1850.
Though when a law gives to certain persons
officials the power of adjudicating on a parti-
cular matter, their decision concludes the inquiry,
and admitting that under the terms of Act VI-
of 1863 an adjudication by the proper authorities
Digitized byGOO^Ie
DIGEST OF CASES.
ACT XVLLL OP lBOQ—amtd.
is conclusive, yet it is only so in cases falling
within their jurisdiction. But the action of the
defendant in the present case was beyond his
jurisdiction, and his adjudication of the fine was,
therefore, not conclusive. The defendant though
acting judicially in adjudging penalties under Act
VI. of 1863, was not in the position of a judicial
officer possessing general jurisdiction and having
general powers for enforcing such jurisdiction. He
acted by virtue of a special and limited authority
given him by the law, which authority failed if
he attempted to exercise it in any ca
ing within the terms of the law. Possessing
only this limited authority, it could not be said
that the defendant, in imposing and levying a
fine on the plaintiff, a man known to him to be
beyond his jurisdiction and having no notice of
his proceedings, in good faith believed himself to
have jurisdiction within the meaning of Act
XVIII. of 1850. Though there was evidence to
show that the defendant in some sense believed
himself to have jurisdiction, and if the question
bad arisen whether he was entitled to notice of
action under f 114 of Act VI. of 1863, and to
such protection as is given by that and other
Acts to persons who honestly intend to put tht
law in force in execution of their office, he might
have been so entitled, such provisions being
liberally construed for the protection of honest
persons who thoughtlessly overstep the limits
of the law, and who in such cases, even though
there may be no reasonable cause for the belief,
yet, if the belief in fact exists, may claim the
protection which the law gives in the shape of
notice of action, &c, — yet a belief of this sort i:
oot enough to exempt a person from responsi-
bility for his illegal acts.
The bon&Jidc belief which Act XV11I. of i8jo
requires in those whom it protects from liability
to suit in respect of acts done without jurisdic-
tion is of a different kind. A belief based on no
probable or plausible grounds, and arrived at
inconsiderately and without due inquiry,
be considered a belief in good faith within the
meaning of the Act, which requires reasonable
care and attention in the performance of his
official duty on the part of him who does 01
orders the act complained of. The enor
whether it be one of law or fact, must, to be
protected or excused, be shown to rest on some
foundation of reason. The defence of the de-
fendant, therefore, founded on Act XVI!!. of
ACT XVIII. 07 I8BO- contd.
1850, failed. Collector of Ska Customs,
Madras*. Punniar Cwthaubaram L I*.
Hep. 1 Had. 88, 1076, F. B
S. C. under Jurisdiction. 13.
And Re* Judicata. 81.
ACT XXL OF 1860— Loss of Caste.
And Hindu Law— Maintenance of
Widow. IS.
Honahma U, TlMANABHAT.,.1. L.
Bep. 1 Bom. 559,
Loss of Caste does oot deprive Father of
Right of Custody of Infant Daughter.
See Loaa of Caste.
Kahaki Rah v. Biddy a R»m...
I. L. Bep. 1 AH. 649.
ACT XXVI. 07 1860— Suit against Collector
appointed Municipal Commissioner
See Jurisdiction. 18.
Gangadhar v. Collector of
A u he on agar... I. L. Bep. I
Bom. 638.
ACT XI. OF 1863.
See Toiam Commissioner's Decision.
VASADEW V. RAU KRISHNA... I.
L. Bep. 3 Bom. 629.
ACT XVEGL OF 1864.
See Hallway Act XVIII. of 1864.
ACT Xm. OF 1866.
See Negligence. 1.
Lvell v. Ganga Dai..X L. Bep.
1 All. 60.
ACT XXVUX OP 1866— Hindu Law— Ann.
dupat — Bengal Mofussil.
See Interest. 4.
DbenDoyalv. KVLAs...I.L.Bep.
1 Cal. 93.
Interest — Dam-dupat— Mortgage.
See Assignment of Mortgage.
Ganpat v. Adarji I. L. Bep.
8 Bom. 313.
ACT XXXVII. OF 1866 — » 2 and 4.
See Jurisdiction. 11.
Mansoor .1. L.
Bop. 3 Cal. 398.
D.gmzed by GoOgle
(
)
DIGEST OF CASES.
ACT XXI. OF ISSe-i 49.
Sec Criminal Procedure Code, Act
X. of 1872, f 232.
Empress v. Baidanath Das. ..I.
L.Rep. 3Cal. 366; ICaL
Rep. 442.
ACT XXXV. OF 1868, J 9-Act XIX, of
1873. H '94. IM— Lunatic— Appointment of
Manager to Lunatic's Estate— Court of IVaris.}
Section 9 of Act XXXV. of 1838, and f 195 of
Act XIX. of 1873, do not render it imperative
on the Court of Wards to take charge of the
estate of a person adjudged by a Civil Court,
under Act XXXV- of 1838, to be of unsound
mind, but merely confer an authority
Court of Wards to. do so. Until the Court of
Wards exercises that power the appointment by
a Civil Court of a manager of a lunatic's proper-
ty, under J 9 of Act XXXV. of 1858, is valid
Ordinarily, before appointing a manager in such
cases, the District Judge should allow the Court
of Wards an opportunity to declare its
but in some cases it may be essential for the
protection of the estate that a manager should
be appointed at once, and if subsequently thi
Court of Wards assumed superintendence, the
appointment made by the Judge would there-
upon be annulled. Manohar Lal. «. Gauri
Shankar. Stuart, C. J., and Turner, J ... I. L.
Rep. 1 All. 476, 1877.
ACT XL. OF 1B58— Application of— to Hindus
Resident and Domiciled in Calcutta-
See Age of Majority.
MOTHOORMOHUN B. SOORINDRO...
I. L. Rep. 1 Cal. 108.
— Sale by Guardian not appointed under.
Sec Sale by Guardian.
Soon d er Narrain o. Bennud
Ram..., I. L. Rep. 4 Cat. 76.
4 IS.
Seethe cases under Alienation by
Guardian.
Sec Mahomedan Lav— Sale by
Guardian.
See Mortgage 29. 30.
Abhassee Begum 5. Maharanee
RAjRoop...I.L.Rep. 4 Cal. 33.
Debi Dutt Sahoo v. Suboodra
Bibbb-.X L. Rep. S Col. 283.
See Review. 10.
Madho Das «. Rukhan Slvah
Singh ..I. L.Rop. 2 All. 287.
act vm. OP II
ACT IX. OF I860— f 2a— Confiscation—Suit
to recover Property Confiscated— Limitation.] A.
died theostensible owner of certain lands, leav.
ing two sons under age. Upon ^.'5 death, after
local inquires made on the petition of A.'s, widow
praying that she and her sons might be record-
ed in the Government registers as the heirs of
the deceased, fl.'s name was entered on the Go-
iter as owner of the property, and
lined in possession thereof until 1858,
when he was convicted and executed as a rebel,
nd the property was confiscated by Govern,
nent as belonging to him.
The sons of A., more than a year after the
younger came of age, and more than a year
after the passing of Act IX. of iSjo, sued for
the recovery of the lands, which had been
granted by Government to the respondent after
the confiscation: —
/fr/<f,that i 20 of Act IX. of 1859, which pro-
vides that no suit shall be brought by any party
1 respect to property confiscated, unless it be
istituted within one year from the-dateof attach-
ment or seizure of the property, was a clause of
general nature, applicable to all Courts, and
ot confined to the special Court created by
Act IX. of iSjg, and though the clause appeared
under the form of a proviso, yet it was a limi-
tion intended by the Legislature to apply to all
lits brought by any person in respect of for-
feited property, and there being no saving with
■pert to parties under disabilities, the Court
could not introduce one, or import the clauses
in the General Statute Act XIV. of 1859 relat-
' ig to disabilities, and that the suit was, there-
fore, barred by limitation. MoilUMHUD BUHA-
door Khan v. The Collector of Bareilly.,,
L. Rep. 1 1. A. 167,1874 ; lORang. L. R.
283 j 81 W.R. 318.
ACT X. OF IBS?— f f 5 and 6.
See Enhancement of Rent <L
Hanumam v. Kaulksar I. Xi.
Rep. 1 All. SOL
*'S-
Sec Enhancement of Rent. 8.
Meek Mahomed Hosseh v.
Forbes ...L. Rep. 2 I. A. 1.
Diaxized by Google
DIGEST OF CASES.
ACT X. 07 1859-™* (d.
— t 33, CI. a— "Illegal Exaction of Rent-"
See Small Cause Court -SCofus ail. 0.
Krishna t. Birpshuk I. L.
Eep. 4 Cal. BB6.
~— ff »3 and 24 — Jurisdiction of Civil and
Revenue Courts.
See Jurisdiction. 2.
Kuuood v. Pukka...!. L. Eep.
4 Cal- 647.
* i°S-
Sw Putnee Talook.
Brindaban Sircar Chowdryh.
Brihdaban Dev Chowdky...
L. Sep. 1 I. A. 178.
ACT XX OF 1869 (BENGAL)— RE VE-
JTTJE— SALE LAW— f 5— Estate under At-
tachment of Civil Court—Notice.'} Where an
estate or share in an estate, not severed for the
purposes of revenue, is under attachment by
order of a Civil Court in execution of a decree,
such estate or share cannot, under f 5 of Act
XI. of 1859, be sold for arrears of Revenue
without the notice required by that Act.
The words "arrears of estates under attach-
ment" are not confined to estates the whole of
which is under attachment. The .ippointment
of a Surbara&ur or manager hy a Court does
not supersede an attachment. Banwaree Lall
Sahoov. MohabekrI'koshao Singh, ..L. Eep,
H. A 88, 1873 ; 12 Beng. L. E. 398.
— (33 — Sale for arrears of Revenue fraudu-
lently effected by Co-Sharer.
See Sale for Arrears of Revenue. 3.
B1100HON Chl-ndek o. Ram Soon-
OBR...I. L. Eep. 8 Oal. 300.
— f 37 — Right of Purchaser at Revenue Sale
to Enhance Rent— Presumption in favour
of Mekurari Tenures.
See Enhancement of Bent. 1.
Parhanundv. Rookinbe...I. L.
Sep. 4 Cal. 793.
( 37, Exception 4.
See Bale for Arrears of Revenue. 1.
Bacho Bibkb «. Ram Kant...
I. L. Eep. 8 Cal. 393.
f 53— Sale for Arrears of Revenue—Unre-
corded Co-Partner, Purchase by — Encumbrances.}
A- in November 1862 purchased a portion of an
ACT XL 07 1869 (BENGAL) -BE VE-
NUE— SALE LAW-owW,
estate sold in execution of a decree against the
(hen proprietor. Default occurred in the pay-
ment of the Government revenue on the 19th
January 1863, and the entire estate was put up
for sale by the Collector, and purchased by At
on the 39th March 1863. •
Held, that A., when he bid for the property at
the revenue sale, sis., in March 1863, .was at
that time, by virtue of the sale which had been
finally confirmed in execution of the decree,
owner of the rights of one of the co-sharers in
the estate, i.e., a co-partner; and in virtue of such
co- partnership, though the sale certificate was not
in his hand, he might, if he chose on or before
the loth January 1863, have paid in the amount
of revenue due on that date. The case, there-
fore, came within the provisions of f 53 of Act
XI. of 1859, and the plaintiff was a person who
was an unrecorded co-partner in an estate, and
who purchased in March, though the purchase
related back to January, the estate of which he
was co-partner. That being so, he took the
tate subject to all its encumbrances existing
the date of sale, and did not acquire any
rights in respect to under-tenants or ryots which
were not possessed by the previous proprietor
at the time of the sale in execution. Abdool
Bari 11. Ramdass Condoo. Jackson and Totten-
ham, JJ...I. L. Rep. 4 Oal. 807 ; 8 Cal. Eep;
S28, 1878.
ACT Zm OF 1869— Contract to supply
Labour.} A contractto supply acertain number
of coolies and keep that number at work on a
plantation for at least three months, though
the nature and extent of the work to be perform-
ed are not clearly specified, fails within the
provisions of Act XIII- of 1859- Rowsou o.
Hahama Mestki. Morgan, CJ, and Innes, J...
I. L. Eep. 1 Mad. 880, 1877.
ACT ZTV. OF 1869.
See Limitation Act XIV. (of
1B69.
ACT XXVTX OF 1880.
See the cases under Certificate to
collect Debts.
Appeal from Order to deposit Security.
See Appeal-OiviL 4.
MoNUOKINEE V. KHBTTEK GO-
rAiFL...I.L.Eep.lCal.l27.
Digitized byGOO^Ie
DIGEST OF CASES.
( II )
ACT XXVIL OF I860— e«M.
— Application for Certificate to collect Debts
due to Estate of Intestate, dead 40 years
before— Question of Title.
Set Certificate 60 collect Debts. 8.
Moonj Bbhaky v. Gocool Chun-
DEE...X. L. Bep. 3 Cal. 616.
— Application by Heir of Decree-holder for
Execution- -Certificate unnecessary.
Set Civil Procedure Code, Act
vnxofwea, ssob.
Kakam Au v. Halima ,.I. X*
Bep. 1 AU. 686.
Mohunt— Private Estate of— Certificate.
See Certificate to collect Debts. 4.
DUKHARAM V. LUCHMUN...I, Ii.
Sep. 4 CaL 954 ; 6 Cal.
Bep. 49.
Set Appeal— CiviL 16.
ROKMW...I. L. Bep. 1 AIL 887.
— — Review of Proceedings under — admissible.
Stt Beview. 4,
Pdona K00EK...I. I» Bep. 1 Cal.
101.
Security — Appeal.
See Appeal -Civil. 16.
RUMIIH...I. L. Bep. 1A1L 387.
■ • $ a— Representative of Assignee by devise
of Debt, cannot sue to recover it without
taking out Probate, or obtaining Certifi-
cate under Act XXVII. of i860.
See Assignee of Debt.
Shodonb v. Halalkfiokb...I. Ii.
Bep. 4 Cal. 640 ; S CaL Bep.
462.
— -} 3 — Claims against Trustees or Executors.']
" It appears to me that , 2 of Act XXVII. of
i860 applies to debts, and not to claims against
executors or trustees. At all events it does not
apply to claims for immoveable property. "
Ptr Pontifez, J I. L. Bep. 8 CaL 46. 64-
■ f 6 — Appeal.
See Appeal— Civil. 4.
MoNMOHIN'EE ». KHETTER GO.
PAUL...I.L.Bep.lCftL137.
— i 6- -Appeal.
Stt Appeal— Civil. 1.
Takini Churn p.Bamasoonduree-
I. L, Bep. 1 Cal. 188, n.
ACT XXVTTX.OF I860 —Porter of Govern-
ment to extend Tim* for Appeal.] The proviso
contained in f as of Act XXVIII. of i860, gives
a discretionary power to the Government of
extending the time for appeal by suit at all times,
even after the expiry of the .period limited.
Krishna rrddi Govindarbddi •- Stuart. Mor-
gan, CJ.| and innti, J..X L. Bep. 1 Had.
198,1877.
ACT XXXI. OF 1860— ( 33, CI. 6— Imprison.
men/ — Sentence — Construction of Statute — Penal
Statute.] A sentence of fine only , or of imprison-
ment only, under Act XXXI. of i860, { 3s, CI.
is legal. A penal statute, when its language
ambiguous, must be construed in the manner
ost favourable to the liberties of the subject,
id this is more especially so when the penal
enactment is of an exceptional character. Reg.
Bhista Madanna..X L. Bep. 1 Bom. 308,
1876, P. B.
ACT XXV. OP 1860.
See Penal Code.
ACT IX. OP 1861 — f 1— Fresh Application—
Previous Ordert not exhaustive of Court's Power.]
A Court is not precluded from entertaining a
fresh application lor the appointment of a guar.
of a minor, under f t of Act IX. of 1861,
by the circumstance that a previous application
oi the same sort has been refused. Nehalo v.
Nawal. Stuart, C.J., and Oldfield, J I. X.
Bep.l AIL 438, 1877.
ACT XTTTT, OF 1801— f 4— Dwelling— Resi-
de Jurisdiction. 8.
Fatjma Begau v. Sakina Began.
X. L. Bep. 1 AIL 61.
- f 4 — Suit against Drawer and Acceptor of
Hundi, residing within Jurisdiction oi
different Courts — Bankruptcy of Accept-
or Procodn re —Civil.
Basant Raj* v. Kolahal...!. X+.
Bep. 1 AIL 398.
-f 11— Order cancelling Auction Sale in
Execution.
&*CivilProcedureCode,Act VIII.
of 1869, 1,366,867.
Sukhai v- Dakvai...L L. Bep, 1
AIL 374.
D,gltlzed by G00gle
( a» )
DIGEST OF CASES.
ACT XXm. OT 18m- -amid.
— f ii— Execution of Decree— Mesne Profits
and Interest subsequent to Decree not
provided (or in Decree— Security to pay-
pending Appeal — Estoppel.
See Mesne Profits. 1.
Sadasiva e. Rahalihoa L.
Bep. 3 I. A. 319; 10 Bong.
' L. B. 383 ; 24 W. B. 183,
— — i it — Execution of Decree — Question of
Legitimacy of son of Decree-holder decid-
ed in— Act VIII. of 1859, i ao8— Juris-
diction.
Set Execution of Decree. 0.
Abeedoonissa v- Akxeroonissa.
L. Rep. 4 I. A. 66; X. L.
Bep. 9 Col. 837.
— — J II — Mesne Profits Misappropriated —
Suit for.
See Means Profits. 5.
SuKNOUOVEE V- PATTARRI SlRKAR.
I. L. Bep. 4 CaL <
— — f II —Mesne Profits Obtained during Pos-
session under Decree Reversed on Appeal
■ — Restitution.
Ste Mesne Profits. 3.
LATI KOOER V- SoBADRA KOOBR...
I. L. Bep. 8 CaL 730.
__ § II— Party to Suit— Purchaser of Decree.
See Appoal— Civil. 0.
Runiit Singh «. Mk hers an
Koee. ..I. L. Bep. 8 CaL 663.
«—— f II — Application far Execution of Decree
—Act VIII. of i8jQ, H 208 and 364— Right of
Appeal.'] The applicant alleging herself ti
the purchaser of a certain decree, applied under
I 208 of Act VIII. of 1859 to the Subordinate
Judge of Dacca to be placed on the record as
decree-holder, and for execution of the decree.
It appeared that the decree had been purchased
benami for some persons not on the record, and
it was in dispute as to who was the real pur-
chaser of the decree. The Subordinate Judge
rejected the application. On appeal to the High
Held, that the applicant was not a party to
the suit within the meaning of Act XXIII. of
1861, ( II, and that no appeal lay.
ACT XXTTI. OP im-contd.
An alleged transferee of a decree by merely
applying for execution of the decree does not
himself a party to the suit. In no
n applicant who applies to be put on
the record on the ground that he has acquired a
title to the decree by transfer, a party to the
luit unless his application is actually granted.
The doctrine laid down in Hurro LaU Das v.
Seojamit AH (8 W. R. 197), if not to be taken
to be overruled by the decision of the Privy
Council in AbidunnissaKkatoonv. Ammimnnissa
Khatoon (L. Rep. 4 I. A. 66, S. C. I. L. Rep.
2 Cal- 337), must at least be considered as
confined to cases in whieh there is no dispute as
to the assignment of the decree having taken
place, or as to the person who is the assignee.
Section ao8 of Act VIII. of 1859 does not apply
to cases where there is a contest with respect
to the rights of persons to an equitable interest
in a decree. Where such contest exists, a party
claiming to be the assignee of the decree would
not be entitled to succeed in an application
for execution made under that section, and for
the same reason would not be entitled to be
made a party to the suit. In no sense, therefore,
could he be considered as coming within the
meaning of J II of Act XXIII. of 1861. No
appeal lies from any judgment or decision given
in a proceeding under f 208 of Act VIII. of 1859.
SOBHA BlBEB V. MlRZA SAKHAHUT ALL White
and Hitter, JJ...L L. Bep. 3 CaL 371 ; 1 CaL
Bep. 831, 1878.
3, ( 11 — Excess Payment made by ISis-
take in Execution of Decree- Suit to recover—
Jurisdiction— Small Cause Court] The plaintiff
sued the defendant to recover a sum realized by
the defendant in excess of the decree against the
plaintiff which the defendant had eiecuted in
the Small Cause Court; the cause of action
alleged in the plaint being the discovery by the
plaintiff of the mistake he had made in paying
interest not provided for in the decree : —
Held by Pearson, J., that the suit was barred
by the provisions of { II of Act XXIII. of 1861.
By Stuart, C.J. , the provisions of { II of Act
XXIII. of 1861, should be confined to matters
within the limits of, and not outside the decree,
and money paid in excess of the amount decreed
is a matter outside the decree. To recover such
an excess, being money improperly, erroneously
and illegally obtained under the guise of the
D.gmzed by G00gle
DIGEST OF CASES.
ACT ant OP 1B61— amid.
process of execution, and with regard to which
no order could be made in the execution depart-
ment, a suit will lie ; and the claim in such a
suit is in the nature oE damages within the
meaning of ( 6 of Act XI. of [865, and is
cognizable by the Small Cause Court when the
amount claimed is within the pecuniary limits
of the jurisdiction of that Court. Agra Sav-
ings Bank v. Ski Ram Mitter...I. L. Rep.
1 AIL . 388, 1877.
.14-
See Pre-emption. 1. 2.
Farzand Ali v. Alimullah.,.1.
L. Rep. 1 All. 272.
Naraiw Singh v. Muhammad
Faruck.-.L L. Rep. 1 All.
277.
i 16 — Order sending Case to Magistrate
for Inquiry into Charge of False Evidence.
See Criminal Procedure Code, Act
X. of 1872, {471.2.
Reg. v. Baijoo Lall...1. L. Rep. 1
Cal. 4G0.
i 3j — Special Appeal in Suits cognizable
by a Court of Small Causes.
See the cases under Small Cause
Court— Mofua ail.
1 $ 27 — Suit Cognizable by Small Cause
Court— Question of Title incidentally
decided — No Special Appeal.
See Appeal— Civil. 31.
MoHESH Mahioi. SHEIKH Pibu...
I.L. Rep. 2 Cal, 470.
— ' — (27 — Suit Cognizableby Small Cause Court
entertained, without Jurisdiction, by
Civil Court within limits of a Small
Court's Jurisdiction — Special Appeal lies.
See Small Cause Court— Mofiw-
sil.7.
Dyebukee v. Mudhoo Mutty...
I. L. Rep. 1 CaL 123.
i 27 — Suit Cognizable by Small Cause
Court — Superintendence of High Court.
See Stat. 24 & SB Vict., C. 104,
t IB. 1.
Lukhykant B05E...I. L. Rep.l
CaL 180.
ACT TXTTT OF 1861— ctmtd.
( 27 — Suit for " Huq-i-ckaharam " or
other Zamindari Cesses.
Sue Small Cause Court— Mofui-
•U.4.
Nahku v. Board or Rbtenve...
L. Rep. 1 All. 444.
{ 27 — Special Appeal — Suit cognisable by
a Small Cause Court,'] Held, that where a suit
of a nature cognizable by a Small Cause Court
was institued before Act XLII. of i860 came
into force, and an order was made on regular
appeal in execution of the decree in such suit
after the passing of Act XXIII. of 1861, that
the provisions of f 27 of Act XXIII. of 1S61
applied, and that no special appeal would lie
from such order. Bichuck Singh v. Nages-
har Nath. Turner and Oldfield, JJ....I. L.
Rep. 2 All. 112, 1878.
*37-
See Appellate Court— Powers of.
Durga Prasad v. Khairati...
I. L. Rep. 1 All B45.
See Stay of Execution.
HARSHANKAR...I. L. Rep. 1 AIL
178.
See Civil Procedure Code, Act VHX.
ofl8S9,f6.
Gya Pkashad v. Bhup Singh... I.
1. Rep. 1 AIL 180.
( 38 — Refusal to register — Review.
See Review. 8.
Reeasut Hossein b. Hadjre Ab-
doollah...Xi. Rep. 8 I. A.
221; I. L. Rep. 2 CaL 131.
ACT XVILT. OF 1862.
See Offence committed before the
Penal Code came into opera-
tion.
Empress, t. Dlljono Misser ,. I. It.
Rep. 2 Cal. 224.
Empress v. M ulna. ..I. L. Rep. 1
All. B98.
f f 86, 27-
See Defamation.
Sibho Prosad I. L. Sep. 4
CaL 124 ; 3 CaL Rep. 123.
Diarized by Google
( « )
DIGEST OF CASES.
(
)
ACT II. OF 1863— f I -Court of Highest
Civil jurisdiction.
See Appeal to the Privy Council. 2.
Thakook Hardbo Btix v. Thakoor
Jawahir Sinoh...L. Bap. 4 X. A.
178 ; I. L. Rap. SCal. 022.
ACT VL OF 1863.
See Jurisdiction. 18.
Collector of Sba Customs v. Pun-
niar Chithahiiakam... I. L. Kep.
1 Mad. 89.
1 24— Finality of Fine imposed by Collector
— ju risdiction.
See Act XVXIX. of 1860. 2.
COLLECTOR OF SBA CUSTOMS B. PUH-
HIAR CHITHAHBARAH...I. L. Hep,
1 Mad. 89.
AOT XIX. OF 1863— « B, 9— Determination
of Title under— not appealed from, and
become final, bars Civil Suit to adjudicate
on same Title.
See Sea Judicata. 3a
HarsahaiMalv. Maharaj Singh.
L L. Rep. 2 All. 924.
ACT XX. OF 1863.
See Criminal Breach of Trust.
Anon I. L. Rep. 1 Mad. 65.
See Suit for Management of a Reli-
gious Endowment.
Panchcowrie Mull o. Chuuroo-
lall . I. L. Rep. 3 Cal. 563.
Suit against persons intruding into Man-
agement of Temple.'] The special sections of
Act XX. of 1863 as to suits, deal only with the
trustees, managers, superintendents, and commit:
tees of temples for acts by them, while filling
the office of trustee, manager, superintendent or
committee, and do not apply to persons who
without any authority, by election, appointment,
or otherwise, have intruded themselves into the
management of a temple and possession of its
properties. Sabafathi u. Subraya. Xenon
and M. Ayyar, JJ...I. L. Rep. 3 Mad. 58,
1878. ■
ACT VX OF 1884.
See Whipping' Act Vt of 1664.
ACT XI. OF 1864— Appointment of Kali.
ACT XX. OF 1884.
See Bombay Minors' Act XX. of
1864.
ACT XXVI. OF 1884— ( 2.
See Small Cause Court— Presidency
Town. 3.
Walji Karimji e. Jagganath
Prbuji.,.1. L. Rep. 2 Bom.
84.
ACT III. OF 1866— Carriers— Common Law
Liability— Contract Act IX. of iS;z, {(
IS'. '5*-
Sec Railway Company. 3.
Kuvekji v. The G. I. P. Rv. Co...
I. L. Rep. 8 Bom. 109.
f 9 — Onus Probandi of Negligence.
See Railway Company. 3.
Ishwardas v. The G- I. P. Rv.
Co. — I. L. Rep. 3 Bom.
120.
ACT X. OF 1865.
See Indian Succession Act X, of
1886.
ACT XI. OF 1965— § 6— Contract— Suit for a
Balance of Account— Jurisdiction.
See Small Cause Court— Hofuasil.7.
DvEBUKEEB. MuDHOO MuTTY...I.
L. Rep. 1 Cal. 123.
f 6, CI. 4.
See Small Cause Court— UorussiL
6.
Krishna v. Bireshur I. L.
Rep. 4 Cal. 696; 8 Cal.
Rep. 177.
§ 12— Suit by Defeated Claimant under $
283, Act. X. of 1877, to recover Move,
able Property attached in Execution of
Decree of Small Cause Court.
See Civil Procedure Code, Act X.
of 1677, i 283.
GORDHAN PANA ». KaSANDAS
BALUUKANDAS...I. L. Rep.
3 Bom. 179.
-(20.
See*
1. 1. 2.
Jakal *. jAyAL...L L. Rep. 1
Bom. 633.
Daudshat- 1smalsha...L L.Rep.
See Execution of Decree. 82.
Gofalu Nanku-.I. L. Rep- 1
•e Judgement ex parte. 1.
Dayal b. Kufpoor.-.I. L- Rep-
4 Cal. 318 ; 3 Cal. Rep.
482.
D.gmzed by GoOgle
DIGEST OF CASES.
ACT XI. OF IS60— amtd.
See Execution of Decree. 39.
GOFAL l. NANKU...I. L. B«p. 1
AIL 624.
* Si-
See Principal and Surety. 1.
Chosth waits b. Hamilton...
I. L. Sep. 1 All, 67.
ACT XX. OP 1866-* 37-Pieader's Fee—
Pre-emption Suit — Costs as between
Party and Party.
See Pleader's Fee*.
Debi Singh n. B hup Singh... I.
L. Hep. 1 All. 708*
ACT V. ■
f 1868— ctmtd.
ACT XXI OP 18eS-f 5— Parsi Succession—
Childless Widow of predeceased San of a Parsi,]
It is not a condition precedent to the application
of f 5 of Act XXI- of 186c that the predeceased
son of a Parsi intestate shall have left both a
widow and issue. Where an intestate Parsi left
him surviving a widow, sons, daughters, children
of a predeceased son, and the widow of another
predeceased son who had died without issue, and
a posthumous daughter was afterwards bom to
the intestate : Held, that such last- mentioned
widow was entitled to one moiety of the share
in the intestate's estate which her husband «
have taken had he survived the intestate,
that the other moiety of such share devolved on
the surviving issue of the intestate, including the
posthumous daughter, and the children of hi
other predeceased son. Mancharji K. Davar
v. Mithibai. Green, J....I. L. Rep. 1 Bom.
(SOS, 1876.
■ - — i 8 — Parsis — Advancement.'] In excluding
by ( 8 of the Parsi Succession Act XXI. of
Irom application to Parsis, of j 42 of the Indian
Succession Act (X. of 1865), which repeals the
English rule as lo advancement contained i
Statute of Distributions, { 5, it was no
intention of the Legislature to preserve the last
mentioned rule in force for the Parsi community.
Danjibhai B. Goirats. Navazbai. Green,]...
I. J.. Bop. 9 Bom. 76, 1877.
S. C. under Administration. 9.
ACT V. OF 1866— Suit an Promissory Note
Payable by Instalments.] Act V. of 1S66
only intended to apply to those cases in which
the bill itself, together with mere lapse of time,
is sufficient to establish for the plaintiff uprtmd
facie right to recover. Therefore, where a pro-
missory note payable by instalments, contained
a proviso that on default in payment of the Erst
instalment, the whole amount was to fall due;
Held, that a suit to recover the whole amount on
default made in payment of the first instalment
could not be brought under Act V. of 1866, as in
such a case the plaintiff is obliged to allege the
of another fact besides the lapse of
since the making of the bill, vi*., that the
instalment has not been paid, of which fact
there was no evidence before the Court, and the
procedure of Act V. of i860" was not intended to
enable the plaintiff's statement of the fact in his
petition to prevail without evidence, which could
given under the Act. Rbmfrey «. Suil-
Pktat, J I. L. Rep. 1 CaL 180,
1876.
ACT X. OF 1866.
See Indian Companies' Act X. of
ACT XX. OP 1888.
See Registration Act XX. of 1866.
ACT XXVI. OF 1800- Sub-Settlement- -
Holding under Contract" — Rules Z and 3.]
Under-tenures held under contract or under any
arrangements from which a contract may be
inferred, are within the definition of sub.proprie.
tary rights given in the rules annexed to Act
XXVI. of 1866, and their holders are entitled to
a sub-settlement. The Maharajah of Bul-
rampur v. Uman Pal Singh. ..L, Rep. 6 I. A.
996, 1878.
ACT XXIV. OF 1867-J 60.
See Rea Judicata. 31.
Smith v. Secretary op State...
I. L. Rep. S CaL 340.
ACT I. OP 1B68— f 1, CI. 13. The word
" include" in Clause 13 and other clauses of f
1 of Act I. of 1868 is intended to be enumerative
and not exhaustive. Empress o. Ramaiviva.
Innes and Forbes, JJ...I. L. Rep. 2 Mad. 6,
1878.
*6.
See Appeal- Civil. 8. 98.
Runjit Singh 9. Meherban Koer.
I. L. Rep. 8 CaL 66S.
Udu Bbgum v. Iham-ud.din ..J- It. Rep.
9 All. 74.
D.gmzed by GoOgle
DIGEST OF CASES.
ACT I. OF 1868— ronW.
Set Civil Procedure Code, Act Z.
of 1877, ( 342.
Rattans: Kaluanji .,L L. Rep.
2 Bom. 148.
(6.
See Offence committed before the
Penal Code came intoopera-
EMFRESS D. DlLJONO MtSSER...I. L.
Hep. 2 Cal. 226.
Empress o. Mulna...L L. Rep.l
All. 599.
i 6 — Execution of Decree — Appeal.
See Appeal— Civil. 0.
Chinto Joshi o. Chintahah
Naravan..,L L. Sep. 3 Bom.
214.
i 6— Execution of Decree— Proceedings
instituted before Act X. of 1877 came
into force — Appeal.
See Appeal -Civil. 26.
ThakuR Prasad a. Ahsan Ali...
L L. Bep. 1 AIL 688.
— , 6— Execution of Decree— Rateable Divi-
sion of Proceeds.
See Execution of Decree. 7.
Narandass v. Bai Mahchha...I. L,
Bep. 8 Bom. 217.
f 6— Refusal to register— Proceedings com-
menced under Act VIII. of 1871— Repeal
of that Act by Act III. of 1877-Appeal,
See Appeal— Civil. 10.
Svud Mahomet H ossein ». Hadzi
Abdullah. ..I. L. Bep. S Cal.
727.
f 6— Registration.'] By virtue of f 6 of
Act 1. of 186S, a suit is to be governed by the
Registration Law in force at the institution of
the suit, and not by that which may be in force
when it comes on for hearing. Ochra Singh v.
Arlakhi Koobr. Milter and Jackson,]] I.
L, Bep. 4 Cal. 036 ; 3 Cal. Bep. 48ft, 1878.
S. C. under Registration. 26.
ACT I. 07 1869.
1. Limitation of Suits in Oudh— Re-
demption of Mortgage— Onus Probandi.J Under
Act 1. of 1869, a suit for redemption is not
ACT L OF I860- -could.
barred where the instrument of mortgage fixes
Tn within which the mortgage might be
redeemed, and such term did not expire before
the 13th of February 1856. Ina suit forredemp-
the mortgage deed, dated the aist of July
, having been lost, the Judicial Commis-
1 held that the onus lay, not on the mort-
r to prove that the term did not expire
before the 13th of February 1856, but on the
mortgagee to prove that it did 1 —
Held by their Lordships, that the burden of
proof was prima" facie on the mortgagor, regard
being had as respects the quantum of evidence
-equired, to the opportunities which each party
nay naturally be supposed to have of giving
:vidence. Rajah Kisheh Dott Ram Pandav
b. Narrbndar Bakadoor Singh...!.. Bep. 3
* I. A. 85,
2. Oudk Estates' Act— Summary Settle-
ment— Registered Tedukdar may be Trustee —
Reformation of Sunnud — Malikana.] Ina suit
against the respondent, pending the regulai
settlement of Taluk Sersendre, to establish plain-
tiff's right to a direct settlement with her of four
villages, and of a one-third share of seven other
out of the 26 villages of which the taluk was
composed ; it appeared that the respondent had,
before judgment, obtained a sunnud of the whole
taluk, his name being entered in the second
Schedule to Act I. of 1S69, and further that he
had admitted himself to be trustee for the plain-
tiff as regards the said one-third share of the
seven villages. It also appeared that the plain-
tiff was entitled to a sub-settlement of the said
four villages: —
Hetd.il) that the plaintiff could not establish
talukdari rights, for, having no interest in many
of the villages, in order to make her a talukdar,
it would be necessary, not only to reform the
respondent's sunnud, but also to break up the
existing settlement and to re-settle the estate
in three different portions.
Qutere, whether since the passing of Act I. of
1869 the sunnud could be reformed, even by the
Governor-General in Council, without a special
Act of the Legislature
(a.) The plaintiff could not, under the sum.
mary settlement and the Governor-General's
order of the 10th of October 1850. acquire pro.
prietaiy rights as against the respondent, who,
before the summary settlement, was sole heredi-
tary proprietor of the taluk, and whose rights
were reserved under the Proclamation.
D,gltlzed by G00gle
DIGEST OF CASES.
ACT I. OF 1869— eontd.
(3.) The summary settlement not having
been made with the plaintiff as talukdar, neither
it nor the order of 1859 conferred talukdari
tights upon her.
Held, lastly, that the plaintiff was entitled to
a Hindu widow's estate of inheritance in the
said four valtages, and in a one-third share in
the profits of the said seven villages, and to have
a settlement of the four villages on terms of
paying to the talukdar the Government demand
Quart, whether the effect of the letter of the
10th of October 1859 and the subsequent legis-
lation is to relieve a Hindu widow, though a
talukdar, from the disabilities imposed upon her
by the general law. Widow of Shunkur
Sahai v. Rajah Kashi Pbrsa/>... I,. Rep. 4 I.
A. 198, n. ; L. R. Sup. Vol. I. A 220.
3 Summary Settlement with Talukdar
dying before the Letter of lOth October 1859— Rt-
sumftion of Taluk.] In a suit brought in 1867
to establish plaintiff's right to a talukdari in
Oudh, as grand-mother and heiress toa deceased
infant Rajah with whom a summary and tem-
porary settlement thereof had been made ; it
appeared that the taluk had been, after the
death of the infant Rajah, and before the letter
of the 10th of October 1859, resumed by the
Government.
/iW(f,Ithat the plaintiff, as heir of a talukdar
who had been permitted to engage fot the re-
venue, but who had died before the letter of the
10th October 1859, was not entitled to the
permanent hereditary and transferable proprie-
tary right described thereby, but which had been
vested in the deceased Rajah.
Act I. of 1869 did not apply to the case.
Ranee of Chilloree v. The Government of
India. . .L. Rep. 41. A. 308 ; L. R. Sup . Vol.
L A. 337, 1873.
4. Right of Mortgagee prior to the eon.
fixation to Sub- Settlement— Malikana.] The
former Rajah of Tulsipore, on the 4th of March
1856, a very few weeks after the first annexa-
tion of Oudh, borrowed from the plaintiff Rs.
7,001, and, as a security for that sum, executed
to him an instrument in the nature of a mort-
gage by way of conditional sale of four villages
" with all the four boundaries and birt temin-
dary rights for four villages." The instrument
provided also that the plaintiff should be allowed
ACT L Of 1869-contd.
take possession of the aforesaid villages, to
pay the Government revenue, and to appropriate
the surplus profits to his use in lieu of interest."
At the summary settlement which the British
Government made on the first annexation of
Oudh, the plaintiff applied to have the settlement
of the four villages made directly with him.
That settlement was not completed until the 4th
of June 1857, and was made to endure only for
the time during which the plaintiff would be in
possession of the villages strictly in the cha-
racter of mortgagee. The Rajah of Tulsipore
having taken part in the mutiny of 1S57, bis
itate was confiscated, and in 1859 created into
talook under the new system, in favour of the
defendant, who was allowed to engage for the
revenue as talookdar at the summary settlement
for that year, which was completed on 25th
of May rS59, and whose title had since been
confirmed in the fullest manner by the Oudb
Estates' Act I. of 1869. The plaintiff, who was
in actual possession of the four villages as mort-
gagee, was dispossessed on the 31st of January
[859, in favour of the defendant, when, in anti-
:ipation of the final settlement, the latter was
tut into possession. While the settlement was
n progress the plaintiff Bled bis suit against the
defendant, the talookdar, at first (asserting
proprietary right as mortgagee), for a direct
settlement of a superior proprietary right, but
subsequently for a sub -settlement of a sub-pro-
ietary right in the four villages : —
Held, that upon the construction of the mort.
gage deed, and having regard to the intention
of the parties, the transfer to the plaintiff was
merely of a sub -proprietary right, and that the
plaintiff was entitled to a sub-settlement of the
four villages without prejudice to the right, if
any, of the defendant to Malikana at a rate not
less than 10 per cent., after the plaintiff's interest
had been perfected by foreclosure. It is not
essential to the enforcement of the right of one
who would be a subordinate zemindar, that the
talookdar should have some pecuniary interest
in the sub-tenure, or that the zemindar should
be bound to pay some substantial rent to his
superior.
Quart, whether even if this mortgage did not
confer a strictly sub -proprietary interest, a sub-
settlement thereof would not have been justified,
by the case of The Widow of Shunkur Sahai v.
Rajah Kashi Pershad (L. Rep. 4 I. A. i»8; U R.
D,gltlzed by G00gle
DIGEST OF CASES-
ACT L OF 1809-contd.
Sup. Vol. I. A. 220). A plaintiff seeking by
his plaint a direct settlement of a superior pro.
prietary right may modify his claim to one ol
a sub -settlement of a sub-proprietary right
Goubi Shunkur*. Maharajah op Bulrau-
pore L. Rep. (J I. A. 1, 1878 ; I. L. Bep.
4 Cat 889.
6. Talaoidar — Joint Hindu Family —
Implied Trust.} In a suit brought in 1865 by
some members of a joint Hindu family for a de-
claration of right against another member there-
of, it appeared that although the defendant,
being Kabooliatdar of a certain talook in Oudh
on behalf of the joint family, had obtained in hi<
own name a sunnud thereof, and of certain
villages granted by Government as a reward
for services rendered by the family during the
Mutiny, yet that from his acts and declaration'
he must be deemed to have consented to
hold the same in trust for the joint family, and
as a joint estate subject to the law of the Mitak-
Heid, that Act I. of 1869, which Was passed
before the suit was decided by the Court of first
instance, did not operate so as to change the
lative conditions of the parties, and to put
end to the trust upon which the defendant 1
previously held the estate. The estate in his
hands remained thereafter subject to the trust,
and there can be no difference in this respect
between an express trust, and a trust implied or
presumed from a fair and reasonable interpreta-
tion of the acts and declarations of the defend.
ant. Thakoor Hurdro Box v. Thakoor Ja.
wahir Singh L. Rep. (J I. A. 181, 1879.
6. Joint Hindu Family— Registered Ta-
Icoidar may be a Trustee — Liability ef Sunnud-
kolder to account.} In a suit brought by some
members of a joint Hindu family for a declara-
tion of right against another member thereof
alleging that the defendant, being Kabooliatdar
of a certain talook in Oudh on behalf of the
joint family, obtained a sunnud in hisown name,
and intended to deprive the plaintiffs of their
rights, notwithstanding an admission made by
him that they were entitled to shares :—
Held, that a person who has been registered
as a tatookdar under Act I. of 1869, and has
thereby acquired a tatookdary right in the whole
property, may, nevertheless, have made himself
a trustee of a portion of the beneficial interest
ACT L OF 1889— tontd,
in lands comprised within the talook, and be
liable to account accordingly.
Shuniur Sakai v. Rajah Kashi Pershad <l_
Rep. 4 1. A. 19E, note) approved.
Case remanded accordingly to try whether,
notwithstanding the summary settlement, the
sunnud and the statute, the plaintiffs, or either
of them, had either before or after the passing
of Act f. of 1869, acquired ot become entitled
to a beneficial interest in any part of the pro-
perty. Thakoor Hurdro Bui v. Thakoor
Jawahir SH10...X1. Bcnp. 4 I. A. 178, 1877 ;
I. L. Bep- 8 CaX 622.
S. C. under Judge, and Appeal
to the Privy Council. 9.
7. Estate in Oudh— Title under Sun-
nud from Government — Trust.} Although a sauad
granted by the Government of India, subse-
quent to the proclamation of the 15th of March
858, of an estate in Oudh, confers an absolute
itle, and one which overrides all other titles,
yet the grantee under Government may, by an
declaration of trust, or by an agree-
holdin trust, constitute himself a trus-
tee of the estate for a third party.
Where the lower Courts, on the ground that
the defendant's title under the sanad was abso-
declined to consider evidence which the
plaintiff relied on as showing that the defendant
really held for him as trustee, the case was
remanded by the Judicial Committee in order
that such evidence might be received and con-
sidered. ThakurShere Bahadur «. Thakitr-
ain Dakiao Kuak..,L L. Bep. 8 Cal. 645,
1877; P.O.
— i z— Win.
See Oudh Proclamation of 1858,
para. 8.
Hurfurshad v. Skro Dval...L.
Bep. 3 L A. 259.
i 3, CI. 4-Condition.
&■ Act I. of 1889, § S3, CI. 11.
Brij Ihoar v. Ranee Janki...Z>.
Bep. 5 ; I. A. 1 Cal Bep. 318.
ii 3 and a— Summary Settlement with,
and Talukdari Sunnud to, Member of
Undivided Hindu Family.
See Oudh Proclamation of 1858.
para. 8.
HURPURSHAD V- SHBO DVAL...L..
Bep. 3. 1. A. 359.
Diarized by Google
DIGEST OF CASES.
ACT L 07 18fl9-<r«iM.
— H 16 to-ig— Not retrospective.
See Oudh Proclamation of 1858,
para. 8.
Hurfurshad v. Shbo Dval...Ii.
Bap, 8. Z.A. 908.
, 23— CI. 4. Sm o/ Talukdar's Daughter
" treated by Mm in all resfiects as Ills own son"—
Parol Revocation of Hindu Will.'] Clause 4 of
f 32 of Act I. of 1869, must be construed irre-
spectively of the spiritual and legal consequences
of an adoption under the Hindu law. When-
ever it is shown by sufficient evidence that a
talukdar, not having male issue, has so excep-
tionally treated the son of a daughter as to give
him in the family the place, consequence, and
pre-eminence which would naturally belong
son, if one existed, and would not ordinarily be
conceded to a daughter's son, and has thus indi-
cated an intention that the person so treated
shall be his successor, such person will hi
brought within that enactment. The will of ;
Hindu may be revoked by parol ; and definitivi
verbal authority given to another by a Hindu
testator, to destroy his will, 1
cation thereof, although the
in fact destroyed. -
Semble, a declaration made by such testator
to the principal officer of the district in whose
custody the will was, of bis desire and inc<
that a particular person should succeed him by
virtue of a newly-passed statute (Act I. of i860)
and in supersession of his will, would be in law
a sufficient parol revocation of the will. M aha.
rajah Pkrtab Naraim Singh c. Maharanee
Subhao Kooer...L. Bep. 4 I. A. 328, 1877 :
S. C. I. L. Bop. 3 Cal- 826
t 22, CI. II— Oudh Taluka— Sunnud ft
Widow and her Heirs — Separate Property of
Widen.] A sunnud of a taluka in Oudh, which
had been previously confiscated by Government,
was granted, with full powers of alienation, to
the widow of the last owner, a Hindu (but with-
out mentioning her status as widow either in the
operative Words or in describing her), and to her
heirs for ever, her name being entered in the
first and second lists under Act I. of 1869, f
one condition of the grant being expressed to be
that, in the event of her dying intestate, or any
of her successors dying intestate, the
should descend to the nearest male heir, accord-
ing to the rule of primogeniture -.-
ACT L 07 1869— contd.
Held, in suits against the widow's daughter
by persons claiming as male heirs to the widow's
husband, that the sunnud conferred, and was
intended to confer, a full proprietary and trans*
ferable right in the estate upon the widow and
her male heirs according to the law of primo-
geniture, and not merely to confer upon her an
estate for life with full power of alienation, and
ith remainder to the male heirs of her husband
i the event of her dying intestate without
having alienated it in her lifetime, and by virtue
of I 3 of Act I- of 1869, she acquired by the
lunnud a permanent and heritable right ill the
state, nor was any trust created by the sunnud,
•r Act I. of 1S69, or, on the evidence, in any
other manner, for the benefit of the reversionary
heirs of her husband.
Held also, that as regards succession, the
limitation in the sunnud was wholly superseded
by Act I. of 1869, and that the rights of parties
claiming by descent must be governed by the
provisions of j 23 of that Act, the positive limi-
tations in which are not in any way controlled
by the provisions in § 3 of the Act, to the effect
that the right acquired by virtue of the taluk-
dari sunnud should be subject to all the condi-
tions affecting the talukdar contained in the
sunnud, under which the estate is held. The
conditions referred to in CI. 4 of that section,
are the conditions of loyalty and good service
mentioned in the letter of the 19th October
1S59, republished in the first schedule of the
Act, and the other conditions of a similar nature
such as those of surrendering arms, &c,
contained in the sunnud.
Held also, that the above taluka was, at the
time of her death, the property (stridhan) of
the widow, and under f 23, CL II, of Act 1. of
1869, descended, in the absence of any proved
custom of her tribe to the contrary, to her
daughter in preference to the son of a daughter
of a rival widow, and the remote heirs of her
husband. Brij In oar Bahadur Singh v.
Ranee Jakki Koer...L. Bop. 6 I. A. 1; 1 Cal.
Bep. 818, 1877.
ACT V. OF 1880- H 170, 171.
See Offence committed at Cyprus.
Empress v. Sarmukh Singh. ..I.
L. Bap. 2 All. 218.
ACT XVHI. OF 1880.
See Stamp Act XVIII. of 1809.
Digitized byGOO^Ie
(
)
DIGEST OF CASES.
ACT XXTX OF 1869.
Set Logialative Power of the
Governor General in Coun-
cil. 1. 2.
Empress v. Bukah ...I. L. Bep. 3
Cal. 68 ; I. L. Bep. 4 Cal.
173; L. Bep. 51. A. 178 ;
L. Bep. 8 App. Ca. 880.
ACT TO. OF 1870.
Set Court Few Act TIL of 1870.
ACT X. OF 1870.
See Land Acquisition Act X of
1870.
ACT XXTV. OF 1870.
£«0udh Talufedar'a Belief Act
XXTV. of 1870.
ACT XXVI. OF 1870.
See Prisons' Act XXVI. of 1870.
ACT VI. OF 1871— f »4— Hindn Law— Interest.
See Interest. 4.
Debn Doval v. Kylas...I. L.
Bep. 1 Cal. 92.
— — f 34— Presumption oE Death of Missing
See Evidence. 31.
Parmkshwer Rai v. Bisheshar
Singh... I. L. Bep. 1 All. 53.
ACT VLTX OF 1871.
See Registration Act VTH. of 1871.
ACT IX OF 1871.
See Limitation Act IX of 1871.
ACT X OF 1871-Chapter VI.
See the cases under Illicit Bale of
Liquora.
ffa.
See the cases under Illicit Sale of
Liquora.
ACT XXHL OF 187L
See Peneiona Act XXTTT. of
1871.
ACT XXV. OF 1871-J a.
See Railway Company. 4.
Pkatab Daji it. The B. B. & C.
I. Rv. Co... I. L. Bep. 1
Bom. SS.
ACT
OF 1871.
See Oudb. Civil OoarU' Act
XXXH. OF 1871.
ACT I. OF 1873.
See Evidence Act L of 1873.
ACT IX. OF 1873.
See Contract Act IX. of 1873.
ACT X OF 1879.
See Criminal Procedure Code,
Act X. of 1872.
ACT XT. OF 1873— ff 3 and 0— Native
State — Cyprus.
See Offence committed at Cyprus.
Empress v. Sarmukh Singh. ..Z.
L. Bep. 3 AIL 318.
ACT VHX OF 1873— f 70— Imprisonment in
Default of Payment of Fine.
See Criminal Procedure Code, Act
X of 1873, f 309. 8.
Empress «. Darba...I. L. Bep. 1
All. 461.
ACT XV. OF 1873. 1 ff 28 and 43— Local
Government — Notice of Suit — Special Apfeal."]
Where in a suit against a Municipal Committee,
the Magistrate of the District, who was also the
Collector, was impleaded as representing the
local Government, the High Court, assuming that
such a plea would be valid in special appeal,
refused to allow the plea that the Local Govern.
ntent had not been made a party to the suit, in
accordance with the provisons of f 28 of Act
XV. of 1873. But the Court expressed no
opinion whether such a plea would be a valid
plea in special appeal.
The notice of action requiredby f 43 of Act XV.
of 1873 previous to suing a Municipal Com-
x is only necessary when the suit is brought
for tort or quasi tort where damages are claimed
for the thing done.
The plea that no notice was given, as required
by § 43, cannot be taken for the first time in
special appeal. The Municipal Committee;
Moradabad v. Csatri Singh. Turner and
Old/mid, JJ L L. Bep. 1 All. 389, 1878.
f 43— Suit against Municipality— Substitu.
lion 0/ President for Secretary as Defendant—-
Limitation Act XV. of 1877, f 2*-Amendment-1
The plaintiff, after giving, in the office of the
Municipal Committee, the notice required by
DM**] by Google
DIGEST OF CASES-
ACT XV. OF WtS-nntd.
1 43 of Act XV. of 1873, instituted a suit against
the Municipal Committee in the name of their
Secretary, claiming a declaration of his right
re-erect certain buildings which the Municipality
bad ordered to be removed, and compel
far their removal. The suit was instituted within
three months from the accrual of the plaintiff'
cause of action; but after the expiration of mot
than three months after that time, the plaintiff
applied to the Court to substitute the r
the President of the Municipal Commi
that of the Secretary, as defendant. The ap-
plication was refused, and the suit dismissed
the ground that it should have been instituted
against the President and not the Secretary,
and that even if the President had been substi-
tuted as defendant on the date of the plaintiff's
application in that behalf, the suit would not
have been maintainable, having regard to ( 43
of Act XV. of 1873, and J »3 of Act XV. of 1877.
as it would have been brought more than three
months after the accrual of thecause of
Held, that if f 43 of Act XV of 1873 applied,
and notice to the Committee was necessary, Sjuch
notice had been given, and the requirements of
the Act substantially complied with ; the
making the Secretary, instead of the President,
the defendant, being one of form only, and,
therefore, that the substitution of the name of the
President for that of the Secretary should have
bee* made, and that such substitution was
affected by g 21 of Act XV. of 1877,— the
against the Committee having been practically
instituted within three months of the accrual of
the cause of action, and , 22 of Act XV. of
1877, applying to cases where new plaintiffs and
defendants personally, are made parties to a
suit after its institution, and not to cases like
the present, where the Committee was sued
through their officer, and a clerical error was
corrected by the Court, and the substitution as
defendant of the proper officer for the wrong
one permitted.
But sfBiife, that r 43 of Act XV. of 1873,
contemplates suits claiming relief of a pecuniary
character for some act done under the Act by
the Committee, or any of their officers, or any
other person acting under their directions, and
for which damages could be recovered against
them personally.
tf, on the other hand, the suit was not one
contemplated by Act XV. of 1873, it was not
ACT XT. OF IBJZ-cmtd.
affected by § 43 of that Act, and would be in
time if the name of the President were substi-
tuted for that of the Secretary. Either way the
subsitution should have been made, and the
case heard upon its merits. The case was ac-
cordingly remanded that this might be done.
Mannj Kasaundhan i. Crooke, Stuart, C.J.,
and Spankie, J...L L. Rep. 2 All. 296. 1871.
ACT XVITX OF 1873.
See Arbitration. 1.
Goshain d. Durga...L I.. Sep.
3 All. 119.
Limitation to Suits under — Exclusion of
Time occupied in prosecuting Suits in
Court without Jurisdiction.
See Limitation. 80.
Timal Kuari v. Adlakh Rai...
L L. Rep. 1 AIL 254.
i 3— Arrears of Grain Rent.
See i 03L
TAJVDDIN ,. RAM PRA3HAD...I.
L. Hep. 1 All. 217.
H S "id o-
See Enhancement of Rent. 4,
Hanumak Pakshad e. Kaulbssab
Pandey...L L. Rep. 1 AIL
801.
i 7— Sir Land— Ex-Proprietary Tenant-
Mortgage of Proprietary Rights in a Mahal
followed by Sale— Ejectment — Jurisdiction —
Mesne Profits.] In a suit to eject the defendants
trespassers from certain sir lands, and for mesne
profits, it appeared that the plaintiffs held pos.
ssion of the share, which included the 51V land,
conditional mortgagees. The sir land was
sublet by them to a tenant. The rights in the
share remaining in the mortgagors, the defend-
ants, were sold at auction and purchased by
the plaintiffs. The defendants, without giving
notice to the plaintiffs of their intention to bold
the sir land as tenants, and of their readiness to
pay rent, ousted the plaintiffs' tenant 1—
Held, that the suit, as brought, was cogniz-
able by the Civil Courts.
Held also, that the plaintiffs, having by the
iction sale acquired the mortgagors' rights,
thenceforward retained possession in full pro-
prietary right ; and inasmuch as up to the time
of the auction sale their possession of the sir as
D,„i„.db»Googlc
DIGEST OF CASES.
ACT XVIIL OF 1878— ramU
mortgagees must be treated as the possession
of the mortgagors, the defendants were enl
to contend that the nV.was held by them at the
time ol the sale, and that after the sale, in v
of the provisions of f J of Act XVIII. of 1873,
they became entitled to a right of occupancy in
the sir as tenants at favourable rates.
Their proper course, then, was to have given
notice to the plaintiffs of their intention to avail
themselves of the rights conferred upon them
by Act XVIII. of 1873, and to enter on the
lands, at the same time offering to pay such
rent as might, having regard to the provisions
of that Act, be properly payable by them. But
though the defendants, having a right to the
occupancy of the lands, could not be treated as
trespassers, yet, they having entered and ousted
the tenant without communicating with the
plaintiffs or taking any steps to have the rent
assessed, the plaintiffs were entitled to recover
damages for the use and occupation of the land.
Bakhat Ram v. Wazik All Turner and Span.
kU, JJ I. L. Sep. 1 All. 448, 1877.
— — } 7—8. Ex-Proprietary Tenant— SitLand
— Mortgage of Proprietary Rightsin a Mahal.]
Where a person mortgaged his proprietary
rights in ft Mahal, which rights consisted of cer-
tain lands occupied by him, covenanting to give
the mortgagee possession for the purpose of
cultivation and the payment of the Government
revenue, and being at liberty to redeem the
lands at any time at the end of the month of
Jaith :—
Held, that the mortgagor could not resist a
claim on the part of the mortgagee for possession
of the lands, on the ground that he had a right of
occupancy in the lands under f 7 of Act XVIII.
of 1S73, that section not being applicable, and
contemplating something more than a mere
temporary transfer of proprietary rights. B hag-
wan Singh v. Mubu Singh... L L. Rep. 1
All. 409.
H 8 and 9.
Set Bight of Occupancy. 3.
Ablakh Raj v. L'dit Narain Rai.
L L. Rep. I. AIL 853.
— {9— -L Right of Occupancy— Tenant— Sale
in Execution of Decree.} Section 9 of Act
XVIII. of 1873 does not prevent a landholder
from causing the sale in execution of his own
decree, of the occupancy right of his own judg-
ACT JCVUU. OF 187B— tontd.
ment-debtor in land belonging to himself.
Umrao Beg am v. The Lano Mortgage Bank
OP India. Pearson and Oldfieid, JJ...I. Ii>
Sep. 1 All. 647 ; Affirmed on Appeal I. L.
Rep. 2 All. 461.
See Right of Occupancy. 2, 4.
Ablakh Rai d. Udit N. Rai. ..I.
L. Rep. 1 AIL 803.
Dwarka Nath s- Hurrish Chun-
der I. If. Sep. 4 CaL,
826.
— { §.—8. Tenant at Fixed Rate—Ex-Pro.
prietary Tenant — Occupancy Tenant — Inherit'
to Rights of Occupancy.) Held, that the
proviso to the last clause of § 9 of Act XVIII.
of 1873 refers only to the holdings of ex. proprie-
tary, and occupancy-tenants, and not to tenants
fixed rates. Bhagwanti e. Rudr Man
TIWARI...L L. Rep. 8 AIL 146, 1879, F. B.
§ 14 — Suit by Purchaser of Shate in a
Mahal, for Profits of Unassessed Sir
Land.
See Suit for Profit*.
Muhahhad Alt v. Kalian Singh,
I. L. Rep. 1. AIL 659.
5 93—5 3— Arrears of Jfntf— Bhaoli— fe-
tenueCourt — CM Court— Jurisdiction.'] Heldby
Stuart, C.J., that when rent is payable in grain
is not competent for the landlord to sue in a
Revenue Court for the equivalent in cash. The
definition of rent in § 3 of Act XVIII. of 1873
does not mean that where the rent is a grain
one it can be either claimed or recovered in
ly I 93 of that Act, suits for " arrearsof rent"
exclusively cognizable by the Revenue Court,
but where the rentinarrear is a grain rent, suits
for arrears of the grain rent to be made good not
in grain,but in money, would only be exclusively
triable by the Revenue Court, either by the claim
for a money equivalent being allowable in them,
or by the decree in them being made capable of
being satisfied in money. The intention of the
Legislature was to give every reasonable facility
for the recovery of such arrears as are mention-
ed in ( 93, and that intention may be assisted by
holding that conversion into, or recovery in
money, is such a reasonable facility, and that
such recovery may be either made by a claim to
that effect in the plaint, or by allowing the
decree to be executed to the same effect.
mortized by Google
DIGEST OF CASES.
ACT XVHX OP 1878-rwiW.
By Pearson, J— Where the tent is payable in
grain only, the landlord is not entitled to sue in
the Revenue Courts for the money equivalent of
arrears of such rent that may have accrued, such
a suit being one for damages for breach of the
contract to pay the rent-
By Turner, J.— Suits for the money-value of
arrears of a grain rent are not suits for rent but
for damages or compensation for non-payment
of rent. But such suits, though not strictly
suits for rent, have for a very long period been
so regarded and tried in the Revenue Court, to
whose jurisdiction no objections have been made.
Under these circumstances the rule cursus curia
lex curia should be applied, and such suits,
though not strictly suits foe rent, should be re-
garded as embraced in that term in ( 93 of Act
XVIII- of 1S73, and the targe terms of the first
paragraph of that section may fairly be read as
prohibiting the Civil Court from entertaining
such suits.
By Spankie and Oldfield, JJ.— A landlord
competent to sue in the Revenue Court for the
money equivalent of arrears of a grain rent.
Tajuddin Khan v. Rah Parshad Bhagat...L
L. Bep. 1 AIL 317, 1876.
i 93—3- Suit by Co-Sharer against Heir
Of Deceased Lambardar, yiir Profits — Jurisdiction
ef Civil and Fmentte Courts.'] Held by Pearson,
J., following Askraf.un-Nissa v. t/mrao Began,
(I. L. Rep. I All. 512, note,) that a suit by a co-
sharer in an undivided Mahal against the heir
of a deceased Lambardar for his share of profits
collected by the Lambardar before his death is
suit cognizable, not by a Civil Court, but by
Court of Revenue.
Stuart, C. J. 1 dissented from the ruling above
quoted. Bhikhan Khan v. Ratan Kuar
I. L. Bep. 1 All. 612, 1877.
S. C. under { 84, infra.
— i 93—3- Appeal to Judge — Proprietary
Right — Pent — Sub-Proprietor.] Where the
defendant pleaded, in answer to the plaintiff's
suit for arrears of rent, that the defendant
longer held as tenant, but as sub- proprietor
under a settlement made direct with the defend-
ant, the Settlement Officer:—
Held, that the suit involved a question of
proprietary right within the meaning of it 93
and 189 of Act XVIII. of 1873, and that
appeal lay to the Judge of the district, though
ACT XVIII. OF 1878— contd.
the amount in suit was less than Rs. 100.
Bisheshur Singh v. Musauat SUOURDHI.
Stuart, C. J, and Oldfield, J ...I. L. Bep. 1 AIL
866,1877.
f 93, CI. h— Suit for Profits—Interest.] A
Revenue Court is competent in a suit for profits,
under Act XVIII. of 1873, j 93, CI. h, to award
interest on profits. Tota Rah «. Shbk Singh.
Turner and Spankie, JJ I. L. Bep. 1 AIL
201, 1876.
i 94 — Limitation to Suit by Co-Sharer for
Share of Profits.} Held by Pearson, Turner, mi
Oldfield, JJ., that the share of a co-sharer in an
undivided Mahal, of the profits of the Mahal for
any agricultural year is due to him from the
Lambardar as soon as, after the payment of
Government revenue and village expenses, there
is a divisible surplus in the hands of the Lam-
bardar, unless by agreement or custom a date is
fixed for taking the accounts and dividing the
profits, in which case any divisible surplus which
may have accrued prior to that date is due on
that date, and the divisible profits in respect of
any arrears which may be collected after that
date are due when they reach the hands of the
Lambardar or his agent.
By Stuart, C.J., and Spankie, J., that where
by agreement or custom there is no date fixed
for dividing such profits, the share of a co-sharer
becomes due on the last day of the agricultural
year, as fixed by Acts XVIII. and XIX. of 187J,
iii., the 30th of June. Bhikhan Khan ».
Ratan Kuar... I L. Bop. 1 All. 613, 1677.
S. C. under J 08, supra.
f 95— Application for Restoration of Occu-
pancy, based on particular Title— Denial of Title
by Landholder — Decision by Revenue Court in
Plaintiffs favour — Subsequent Suit by Land.
See Ban Judicata. IS.
Shihbu Narain Singh e. Bach-
cha.X L. Bep. S AIL 300.
( 95 — Jurisdiction— Revenue Court — Cttit
Court.] T., the occupancy tenant of certain
lands, gave K. a lease of his occupancy rights
for a term of 20 years. In the execution of a
decree for the ejectment of T. from such bads,
obtained by the landholder against T. in a suit
to which K. was no party, K. was ejected from
such lands. This decree was subsequently set
aside, and T. recovered the occupancy of such
D,gltlzed by G00gle
DIGEST OF CASES.
AOT ITJU. OP 1B73—centd.
lands- Held, in a suit by K- against T. and the
landholder, in which K. claimed the occupancy
of the lands and mesne profits for the period
during his dispossession, in virtue of the lease,
that the suit was one cognizable by the Civil
Courts, and not one on the subject-matter of
which an .application of the nature mentioned
in S 95 of Act XVIII. of 1873 could have been
mode, so as to give the Courts of Revenue exclu-
sive jurisdiction in such matter. Kalian Das
t- Tika Ram. Sfankie andOldfield.]} L L.
Hep. 2 AIL 187, 1878.
} 95, CI. m~Ltase of Zemindari Rights-
Wrongful Dispossession of Lessee by Lessor — Suit
for Compensation— Jurisdiction of Civil and Re.
venue Courts^ The defendant granted the
plaintiffs a lease of his zemindari rights in cer-
tain villages for five years at a fixed annual rent.
Two years before the expiration of the lease, the
defendant dispossessed the plaintiffs of the vil-
lages and collected the rents from the tenants
himself.' The plaintiffs then sued the defendant
in the Civil Courts to recover the moneys so
collected by him 1 —
Held, by Stuart, C.J., that the suit was not
one of the kind described in Act XVIII. of 1873,
f 95, CI. «. The lease given by the defendant
was not a merely agricultural one, and did not
simply establish the relation of landlord and
tenant, but within its limits constituted an inde-
pendent and indefeasible title and right, which
the defendant bad invaded, for which
he was liable in damages, the measure
was the money improperly received and detained
by him ; and such a claim was cognizable only
by the Civil Courts.
By Pearson, Turner, and Oldfield, JJ., that
persons, who, like the plaintiffs, take fr
zemindars leases of their zemindari rights
lands, are unquestionably tenants, and are
deprived of this character, because in relatioi
the actual cultivator of the whole or some parts
of the property leased they may be described
landlords. Such persons are subject to those
provisions of the Rent Act which apply to
tenants of all classes. Inasmuch as under ar
application in the Revenue Courts for compen-
sation for wrongful dispossession, the plaintiffs
could obtain the relief they sought in the present
start, the jurisdiction of the Civil Court:
ousted by the provisions of Act XVIII. of 1873,
AOT XV1TX OT 1878— eontd.
i 95, CI. m, and the plaintiffs could obtain relief
only in the Revenue Courts.
Spankit, J,— The provisions of CI. m, § 95,
Act XVIII. of 1873, apply to the ordinary tenant
agricultural ryot paying rent for the use or
:upation of land, and to the lessee of an entire
ate for a fixed term of years, as the plaintiffs
were ; and as their claim was not of the nature
of an application for compensation that could be
made to a Revenue Court under that clause, the
properly instituted in the Civil Courts.
Abdul Aziz v. Wali Khan L L. Hep. 1
All. 838, 1877.
( 106.
See Civil Procedure Code, Act X. of
1877, § 88. 9.
Shiv Go pal e. Baldbo SahAi .,
I. I* Rep, 8 All. 364.
i 177-
See Pre-emption. 1.
Naraik Singh v- Muhammad
Fartjck.X L. Hep. 1 All.
277.
S *>9.
See liability of Lambardar to
Co-Sharer for Proflta.
Manga l Khan v. Mumtaz Ali...
I. L. Hep. 3 All. 238.
AOT XIX. OP 1673— , 3, CI. i—Kkalisa
Mahal— Sale in execution.
See Sale in Execution of Decree, 8.
Showers ■». Seth Gownd Dash.
I. L. Rep. 1 AIL 400.
-139-
See Bee Judicata. 34.
Husain v. GOPAL..X L. Rep.
8 All. 488.
- 51 43. 83, 241. CI. 5-
See Vendor & Purchaser. 9.
Hiralal ». Ganesh.-I. L. Sep.
a AIL 410.
f 62— Record of Rights— Ju
risdiction of
Civil and Revenue Courts.
See Jurisdiction. 0.
SUNDAU V KHUHAH
Singh. ..I.
L. Rep
1 All. 613.
§66.
iVrCesn.
L.AJ.A ;. HiRA SlNIiH
,.I. L.ttep.
3 AIL 49.
D,„i„.db»Googlc
DIGEST OF CASES.
ACT XIX OF 1873— contd.
- § 66 — Suit for Declaration of Zemindari
Right to Cesses.
See Declaratory Decree. 8.
Akbar Khan v. Sheoratan.,.1.
L Rep. 1 AIL 873.
- § 94— Record of Rights — Jurisdiction of
Civil and Revenue Courts.
See Juried iction. S.
SUNDAH V. KHUHAN SlNGH I.
L. B«p. 1 AIL 613.
- H I94> '95— Appointment of Manager to
Estate of Lunatic.
Manohar Lal o- Gauri Shankar.
I. L. Kep. 1 AIL 476.
1 88.
See Proamption. 1.
Naraih Singh «. Muhammad Fa-
ruck... I. Ii.Bep. 1 A1L377.
See Arbitration. 1.
GOSHAIN GlRDHARIJI V. DuRGA
Devi ...L L. Bap. 9 All. 110.
See Jurisdiction. B.
SUHDAR V. KHUHAN SlNGH...L L.
Rep. 1 AIL 018.
■ i 241 — Revenue — Patlidar — Suit to recover
Money paid on Account of Revenue due by Defend-
ant— Jurisdiction.] The plaintiff, a pattidar,
who had paid a sum on account of a demand for
Government revenue, not merely in respect of
his own share, but also in respect of the shares
of the defendants, his co-pattidars, sued to reco-
ver the sunt paid in eicess of his own quota.
The Court of first instance dismissed the suit,
deeming it to be one connected with or arising
out of the collection of the revenue, which the
Civil Courts were prohibited by f 241 of Act
XIX. of 1873 from entertaining r —
Held by Turner, C. J. (Offg.), Pearson and Old-
field, JJ., that the Civil Courts were competent
to entertain suits of this nature, and that the
lower Court was wrong in regarding the claim
as one connected with or arising out of the col-
lection of the revenue within the meaning of
that term in f 341 of Act XIX. of 1873; it was
a suit by the plaintiff because he had been
compelled to pay a debt for which the defend-
ACT XXX OF 1878— amid.
ants were also liable jointly with him, a payment
which gave him the right to call on them for
contribution.
Per Spaniie, J.,— Act XIX. of 1873 aims at
keeping in the bands of the Revenue officers the
settlement of every dispute connected with the
collection of revenue, whether such- disputes
arise between the revenue -payers themselves,
or between the Government officers and the
revenue.payer.
The claim in this case arose oat of the collec-
tion of the revenue, and the enforcement of the
plaintiffs liability to pay the arrear due by his
co-sharers, and was, therefore, included under
CI. (0 of f 341 of the Act ; over such claim the
Civil Courts had no jurisdiction, but only the
Revenue Courts, Ram Daval c.Gulab Singh.
I. L. Bap. 1 AIL 26, 1878.
ACT II. OF1874.
See Administrator -Ganeral'R Act
n. of 1874.
ACT m. OF 1874.
See Harried Women's Property
Act TH. of 1874.
ACT VL OF 1874— Appeal from Order grant,
ing Certificate.
See Lottor* Patent (Calcutta,)
1880,01. 15. L
Mowla Baksh e. Kishhn Pektab
Sami...Z. L. Bep. 1 CaL 102.
i 5—1. Letters PoJent (Calcutta) 1862.
a. 39— Stat. 24 & 3«, Via., C. 67, i 22— Stat.
34 ft 15 Viet, C. 104, tg— Powers of the Legis-
lature^ The provision in $ 5 of Act VI. 0P1874,
that where there are concurrent decisions on
facts, the case must, in order to give a right of
appeal to the Privy Council, involve some sub.
stantial question of law, is not ultra vires of the
Indian Legislature as being a curtailment of the
jurisdiction given to the High Court of Calcutta
by the Letters Patent of 1865, CI. 39.
The Courts in India have no power to admit
or allow an Appeal to the Privy Council unless
expressly authorized to do so by competent au-
thority. The power to admit such appeals was
conferred on the Sudder Dewanny Adawlut
(Calcutta) by Beng. Reg. XVII. of 1791, f 3;
of that power by the orders of Her Majesty in
Council of loth April 1838, passed u
DiQtttzed by Google
DIGEST OP CASES.
ACT VI. OF 1874— onAf.
of 3 & 4 Wm. IV., C. 41 ; and the practice of
the High Court of Calcutta in the admission of
appeals has also been regulated by certain rules
of its own, made by the Sudder Dewanny Adaw-
lut on the 17th December 1858, and by the
High Court on the 30th July 1870. But there
is nothing in Stat 24 & 25 Vict, C. 67, which
would prevent the Governor-General in Council
altering or repealing any of those provisions.
The words " subject always to such rules and
orders as are now in force" in CI- 39 of the
Letters Patent (Calcutta), 1S65, do not i>
porate those provisions into the Letters Patent,
so as to remove them from the sphere of legis-
lation by the Governor-General in Council.
Clause jg of the Letters Patent (Calcutta) was
not inserted in pursuance of, and does not rest
for its authority on, Stat 24 & 15 Vict., C. 104;
and, therefore, the admission of an appeal to
the Privy Council is not one of those powers
which the High Court is, by the first part of
§9 of Stat. 24 & 25 Vict., C. 104, commanded
to exercise. Its existence is entirely independent
both of that Act and the Letters Patent
Section 22 of Stat. 24 & 25 Vict., C 67, must
be read with J o of Stat. 24 ft 25 Vict., C. 104,
by the express words of which latter enactment,
" save as by such Letters Patent may be other-
wise directed," all previously existing powers
are reserved to the High Court, provided the
Letters Patent do not interfere with them, and
as to all such powers the Governor-General
Council is expressly empowered to legislate. The
power of admitting appeals to the Privy Coun-
cil, being one of those previously existing
powers, is held by the High Court, under the
Act and not under the Letters Patent, and,
therefore, rendered by the Act itself, subject tc
the legislative control of the Governor-General
in Council, to which it still remained subject
when the old powers of the abolished Courts
were merely repeated in the Letters Patent.
Even if the power to admit an appeal were con-
ferred by the Letters Patent, it is not a new
power, and has, therefore, been made by the Act
of Parliament expressly subject to the legislative
control of the Governor-General in Council, but
not of any other legislative authority in India.
The ratio decidendi of Reg. v. Hearts (14
Beng. L. Rep. 106) dissented from. Where
there were two concurrent decisions on (acts, an
application for leave to appeal to the Privy
ACT VI. OT 1874-tfxU.
Council was refused, the right of appeal from «
decision of tbe High Court on its appellate side,
simply on the ground that the subject-matter of
the suit was above Rs. 10,000, having been
taken away by Act VI. of 1874, ( 5. /ft the
matter of the Petition b/Feda JIosskin. Mark.
by,} I. L. Rep. 1 Cal. 481,1876.
5 S— -• Appeal to Priv Council— Sub.
stantial Question of Lais.'] The substantial
question of law which, by f 5 of Act VI. of
1874, the appeal must involve in order to give
an appeal to the Privy Council in a case where
the decree appealed from affirms the- decision of
tbe Court below, is not limited to a question of
law arising out of the facts as found by tbe
Courts from whose decision it is desired to ap-
peal. A question of law arising on the evidence
taken in the case is, without reference to the
findings of the lower Courts sufficient to found
an appeal. Mohan n. Mittu Bibie. Pontifex,
J .1. L. Rep. 3 Cal. 328,1870.
. « 8— i II, a. b—Act IX. of 1871, f 5—
Practice — Closing of the Court — Deposit of Money
under Act VI. of 1874, § II, CI. 6— Power of
Court to grant Special Permission.'] The peti-
tioners had obtained a certificate on the 1st of
September to appeal to Her Majesty in Council
from a decision passed against them by the
High Court on the 4th of May. Accordingly
the period during which they were to deposit the
amount for the translations of the record, under
S 11, CI. b of Act VL of 1874, expired on the 4th
November. The offices of the Court re-opened
after the vacation on the 23rd October, but the
Benches did not commence to sit till the 16th
November. On the last mentioned date, the
petitioner brought in the money, and it was re-
fused by the officer of the Court as being too
late:—
Held, that it was rightly refused, and that the
Court had no power to grant permission to
deposit it after the prescribed time.
In the matter of the Petition 0/ Lalla Gofee-
chand. Marhby, J...X, L. Rep. 2 Cal, 128,
1878.
— §f ' '1 '*> a[>d 15 — Dismissal of Appeal for
Default in Deposit of Security, and in
transcribing Record.
See Appeal to the Privy CounciL 4.
Thakoor Kapilnath Singh ».
The Government I. I..
Rep. 1 Cal 143.
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DIGEST OF CASES.
( « )
AOT VL OF 1874 -contd.
— § 1 1 — Deposit of Costs — Power to enlarge
Tim*.] The requirements of | II, Act VI. of
1874, as to the deposit of coats are not absolute-
ly imperative. The Court has power in its
discretion to modify them, and when the period
for making the deposit expires on a day when
the offices of the Court are closed, it is a reason-
able exercise of that discretion to allow the
deposit to be made 00 the day they re-open.
In thi matter of the Petition of SoOBJMUKHi
Koek. Garth, C.J., Sfacpherson and Uarkby,
J] I. L. Rep. 2 Gal. 272, 1877.
ACT XIV. OF 1874.
Set Jurisdiction. 11.
SuBDHARBEg. MaNSOOR AllV.-.I.
L. Bep. 8 Cal. 398.
ACT XV. OF 1874.
See Jurisdiction. 11.
SuBDHAREB V. MaNSOOR ALLY... J,
Xi.B«p. 3 Cal.a88.
AOT XVI. OF 1874.
See Madras Act HT. of 1865,
Reg. v. Kandakora...I. L. Sep.
1 Mad. 233.
ACT IX OF 1876.
See Majority Act IX of 187S.
ACT X. OF 1876.
See High Court Criminal Proce-
dure Act X of 1875.
act arm. of i875.
See Probate. 2.
Shamachurm...L I* Rep. ICaL
58.
(a.
See Administration. 8.
Hewsoh.,,1. L. Hep. 4 Cal. 770.
ACT XVII. OF 1876.
See Bnrmah Courts' Act.
ACT XL OF 1878.
See Presidency Banks' Act XI. of
1876.
ACT L OF 1877.
See Specific Belief Act I. of 1877.
ACT X. OF 1877.
Sec Civil Procedure Code, Act X.
of 1877.
ACT XTX OF 1870— f a— Decree — Order
Returning Plaint after Issues filed is not.
See Appeal— Civil. 83,
Abdul v. Rajihdro...L L. Bep.
2 AIL 357.
AOT OF STATE.
See Right to ana. 7.
Nobind Chunder Dev «. Secre-
tary of State for India...
. I. L. Bep. 1 CaO. 11.
Jurisdiction of Civil Courts."] Where an
e is seized by the Government on behalf
of the Crown by its right of conquest, and not
by virtue of, or under colour of any legal title,
ise of sovereign authority, and
such estate is afterwards dealt with by the
Government in accordance with its notions of
what is just and reasonable, and not according
to any rules of law to be enforced against them
by their own Courts, such seizure and subse-
quent disposition of the estate is an Act of
State, and cannot be questioned in a Municipal
Court Sibdab B hag wan Singh v. Secretary
State fob India L. Bep. 21. A. 38.
ACTION FOB TBOTEB— By Wife against
Husband.
See Husband and Wife.
Harris v. Harris...I. L. Bep. 1
Cal. 885.
ACTS DONE IN OFFICIAL CAPACITY
BY COLLECTOR -As Administrator
of Minor's Estate — Jurisdiction of Sub-
ordinate Judge.
See Bombay Minors' AOT XX of
1884, ff 11 and 15.
NARSINGBAV V. I.UXMANRAV...I.
L. Bep. 1 Bom. 318.
—As President of Municipality.
See Jurisdiction, IB.
Ganoadhar o. Collector of Ah-
...I. L. Rep. 1 Bom.
ACTS DONE IN OFFICIAL CAPACITY
BY MUNICIPAL COMMISSION-
ERS APPOINTED TJNDEB ACS
XXI. OF 1860.
See Jurisdiction. 18.
Gahgadhar v. Collector of Ah.
MHDNAGAS, ..I. L. B«p. 1 BOBO..
Diarized by Google
(
)
DIGEST OF CASES.
ACT IMPOSING TAX— Construction of.
See Madras Act HI. of 1871.
Leman «. Damodaraya L L.
Bep. 1 Mad. 108.
ACTS OF LIMITATION, CONSTBUC-
TION OF.
See Construction of Statute. 3.
Uhushahkar v. Chotalal L
It. Bep. 1 Bom. 19.
ACTS LIMITING BIGHT TO BESOBT
TO COURTS OF JUSTICE— Con-
struction of.
See Pensions' Act '* * I II of 1871.
2.3.
Ravji v. Dadaji L L. Bep. 1
ACTS OF OWNERSHIP -Evidence of.
See Limitation. 7.
MohimaCkunderv. H unto Lall.
I. I.. Bep. 8 Cat. 768.
ACTS IN PABI MATERIA— Construction
of.
Bee Jurisdiction. 18.
Collector op Sea Customs «.
Punniar Chithaubabau ..I,
L. Bep. 1 Mad. 89.
AOTB-~PKNAL— Construction of.
See Construction of Statute. 4.
Reo. «. Bhista I. L. Bep. 1
Bom. 308.
ACTS RELATING TO PROCEDTJRE-
Construction of.
See Civil Procedure Code, Act X.
of 1877, § 342.
Rattansi Kallianjj...L L. Bep*
a Bom. 148.
See Construction of Statute. 5.
SlTARAM V. KhANDRRAV-.-L L.
Bep. 1 Bom. 868, 291.
See Appeal— Civil. 96.
Thakur Prasad o, AhsanAli...
I. L. Bep. 1 All. 668.
See Bight to sue. 7.
Nobind Ckunder Dry v. The
Sucretafvof State for India.
LL.Bep.lCaL II.
See Act of State. 1.
Sirdrar Bhagwan Singh v. Se-
State for India...
I. L. Bep. 9 L A 88.
ADDING PASTIES TO BTJIT.
Sen Abatement of Appeal— Civil.
M ores h was ■. KuSHABA...I. L.
Bep. 2 Bom. 948.
limitation as to Added Parties.
See Co- Sharers of Land. 4 .
Brvdonath Bag v. Grish Chun.
dhr Roy I. L. Bep. 8 Cat.
38.
See Onus Probandi. 3.
Abdul v. Manji...L L. Bep. 1
Bom. 295.
Bep. 1 Mad. 888.
- Suit for Damages for Breach of Contract —
Party claiming no Interest in Subject,
matter of Suit cannot be added.
See Parties to Suit. 7.
KOEGLBR V. PrOSONKO CoOMAR...
I. L. Bep. 9 Cat 472.
- Suitfor Damages on Sale by Sample, from
Bulk not corresponding with Sample-
Plaintiff cannot be compelled to add
Defendant's Vendors as Parties.
See Civil Procedure Code, Act X.
of 1877 i 32.1.
M ahum bd B adsh a » Nico l, Flem -
inq & Co...L L. Bep. 4 Cal.
886.
- Suit by One of two Co- Mortgagees, Les-
sors, for Share of Rent— Adding Co-Mort-
gagee as Defendant.
See Civil Procedure Code, Act X.
Of 1877, 5 S3. 2.
Shib Gopal v. Baldbo Sahai...
IL Bep. 2 All 364.
Diaxized by Google
(
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DIGEST OF CASES.
ADDING RESPONDENT TO AN AP-
PEAL AFTER TIKE ALLOWED
BY LIMITATION.
See Parties to Suit. 8.
The Court of Warm o. Gaya
Persad...I. L. Sep. 2 All.
107.
ADJECTIVE AND SUBSTANTIVE
LAW.
See Limitation. 81.
Pasufati v. Pasi/pati L L.
Rep. 1 Mad. 52.
ADJUSTMENT OP DECREE— Postpone
Petition.
See Postpone Petition.
Darbha v. Rama. ..I. L. Rep. 1
Mad. 387.
Money paid out of Court— Suit to Recover.']
N, having obtained a decree against AT., request-
ed him to discharge certain sums due on out-
standing bonds which If. had given to third
persons, promising to credit the sums so paid,
to the amount due under the decree. K. paid as
requested, but It, took out execution in full of
the decree, and the Court refused to recognize
the payment made by K. out of Court. In a
suit brought by K. for the money so paid ; —
Held, that the payments not having been
made directly in adjustment of the decree, the
suit was not barred within the rule laid down in
Arunachella PUtai v. Appava Pillai (3 Mad.
H. C Rep. 188). Kunhi Moidim Kutti v.
Ram en UnNI. Morgan, C. J., and Innes, ]
L L. Rep. 1 Mad. 203, 1877.
ADMINISTRATION — Certificate of — of
Estate of Deceased Member of Undivided
Hindu Family.
Sec Certificate of Adminiatra tion.
Gukachariya b- Swamirayacha-
rva I. L. Rep. 8 Bom.
431.
— Certificate of— Necessary for Suit on Be-
half of Minor.
See Bombay Minora' Act XX. of
1864, * 2.
MURLLDHAR V. SVPDU...I. L. R.
8 Bom. 318.
— Duty Paid in England..
See Administration. 4.
Infant Hindu Widow — Administration of
Husband's Estate.
Set Administration. 8.
ADMINISTRATION— cent*.
Letters of — to Administrator-General.
Set Administration. 0.
— Money paid after Intestate's Death for
Support of Family.
See
1.
Parsis — Next of Kin's Share Liable for
Debt Due to Intestate.
See Administration. 2.
With Will annexed.
See Indian Succession Act X of
1865, ,358.
Wilson I. L. R. 1 CaL 140.
Payment of Time-barred Debt by Admiu-
istrator-General .
See Time-barred Debt.
Administrator -General 0. Haw-
kins...! L. Rep. 1 Mad.
367.
1. ——> Claim against the Estate for "Motleys
paid after Intestate's Death for Surviving Mem-
bers of his Family .] A plaintiff in an adminis-
tration suit sought to render the estate of the
intestate liable for certain sums, alleged to have
been paid by the plaintiff out of his own moneys,
after the intestate's death, for the household
expenses of his widow and younger son : Held,
that the moneys paid, after the death of the
intestate, for the household expenses of his
family, could not be charged to the estate, in
the absence of any special agreement or testa-
mentary provision to that effect, but could onlj
be a debt due in their individual capacity by
the members of the family for whom such sums
were paid. Dhanjibhai B. Gujrat v. Navaz-
bai. Green, J L L. Rop. 2 Bom. 70, 1877.
2. • ■ Liability of Share of Next ef Kin for
Time-barred Debt due to intestate Parsis.']
Semble, that the rule followed by the Courts of
Equity in England whereby, notwithstanding
the provisions of the Statute of Limitation, the
share of one of the next of kin in the estate of an
intestate, while in the hands of the administra-
tor, is liable for a debt due by the next of kin
to the deceased, though barred at the date of
the death of the testator, is applicable in the
Courts of British|India. Dhaniibkai B. Gujrat
*. Navazbal Green, J L L. Rep. 2 Bom.
76, 1877.
S. C under Act XXI. of 1866, J 8.
Set Time-barred Debt.
Administrator-General e.
HAWKiNS...LL.Bop.lMad.
887.
boozed by Google
( «B )
DIGEST OF CASES.
ADICXJnSTRATION-am**.
3- Infant Hindu Widow — Administra-
tion of Husband's Estate— Maintenance — Special
Citation— Caoeat.'] On an application by the
father of an infant Hindu widow for the grant of
letters of administration to him, as her guardian,
of the estate of her deceased husband, and of
the estate of the husband's mother, it appeared
that the onlj property of her husband consisted
of a sum of money ordered to be paid to him
under a certain decree, upon his constituting
himself the representative of his mother. This
he had not done. It also appeared that there
were no unliquidated debts due by the husband.
The sum of money in question was in the hands
of the Official Trustee.
Held, that letters of administration could not
be granted to the father, but that the widow
could apply when she came of age, and that
until that time the Official Trustee could pay the
income to her next friend for her mai
A. special citation had been served upon the
step-mother of the husband, and sbehad entered
Held, that she had no right to enter a caveat
simply because she had received a special
citation. In the Goods of Hurry Dass Bon-
nerjee and Sbbbmuttv Gangauonby Dabeb.
Pontiff*, J L L. Bep. 4 Cal. 87, 1878.
4. Fees— Liability of Property on which
Duty paid in England to pay Duty in India —
Court Fees' Act VII. of 1870, Sched. I., CI. II.]
A testator died in England, and his executrix
proved his will there, and then in the High
Court at Calcutta, paying duty in each country
on the assets there. On the death of the
executrix the Administrator-General obtained
letters of administration de bonis nan of the
testator's, unad ministered property, valued at a
sum greater than that on which duty was ori-
ginally paid in this country by the executrix, but
which sum was made up of assets from Eng-
land on which duty bad already been paid there
Held, that as the assets were within the juris-
diction of the High Court at the time of the grant
of administration, and the Administrator- General
could not have obtained possession of them other-
wise than by virtue of the grant, they 1
to the a&talorem fee, prescribed by CI. II, Sched.
I. of the Court Fees' Act. In the Goods of
Mubch. Garth, C.J. ...I. L- Bep- 4 Cal, 738,
1879.
Set In tkt Goods of Ci^dstoh»...1. L.
Bep. 1 Cal. 168.
Under Probate Duty. 8.
ADKOTTSTKATION —contd.
B. Letters of Administration Granted to
the Administrator-General — Form and Extent of
Grant— Act X. of 1865, §§ 187-100 and 242 —
Act II. of 1874, §§ 3 '4. '6. 66— Act XIII. of
l37S, § a.] Section 2 of Act XIII. of 1875 does
apply to letters of administration granted
to the Administrator-General. Grants of letters
of administration to the Administrator-General
made to him by virtue of Act II. of 1874,
I are not in any way affected by the provi-
is of Act XIII. of 1875. The form of the
grant should be general and unlimited.
Per Garth, C.J.— Grants of administration to
1 Administrator- General are limited to his
vn Presidency.
Per White, J.— It is a distinct question what
the effect of the grant will be, meaning by that
what is the area in India over which the grant
operate. Beyond saying that its effect,
whatever it may be, is not enlarged by § a of
Act XIII. of 1S75, it is unnecessary to decide
tion on the present application. In
the Goods of HEWSON. Garth, C. J., and White,
J. ...I. L. Bep. 4 Cal. 770 ; 4 Cal. Bep. 43,
1879.
ADMINISTRATION ACCOUNTS.
See Hindu Law— 'Will. 8.
SuRBOMUNGOLA 0- MoHENDRO
nath I, L. Bep. 4 Cal.
608.
ADMINISTRATION SUIT- -Decree in
Creditor's— Effect of.
See Certificate to Collect DebU. 3.
Trebfoorasoondery Dosseb v.
Dsben dron ath T a go r r . . . I.
L. Bep. 2 Cal. 40.
ADMINTSTBATOR-OENERAL — Com-
mission Awarded to — Appeal from Order.
See Administrator -General'* Act
II. of 1874, §37.
SOMASUNDARAH CUETTI p. Al)H[-
mstrator -General I. J*.
Bep. 1 Had. 148.
Grant of Letters of Adm
See Administration. S.
Hewson ...I. L. Bep. 4 CaL 770.
May pay Time-barred Debt.
See Time-barred Debt.
AdKINIST BATOR -GENERAL V. Haw-
kins...!. It. Bep. 1 Had. 367.
Diaxized by Google
DIGEST OF CASES.
ADMrNTSTKATOB-GENEBAL'S ACT
H 07 1874.
Set Administration. 6.
Hhwson...L L. Bep. 4 Cat 770.
f f 27. 54— Cemmitttpn to Administrator.
Central—Appeal from Order— Letters Patent,
CI. 15. ] An order passed by a single Judge of
the High Court under Act II. of 1874, J 27,
ascertaining the commission payable to the
Admin istrator-Gencral, is in the nature of an
adjudication, and open to revision and appeal
by the High Court under the 15th Clause of the
Letters Patent of 1865 (Madras).
Though such order, being discretionary, will
not under ordinary circumstances be interfered
with on appeal, yet, where it is not in accordance
with the rule laid down in ( 54 of the Act, the
Appellate Court will interfere to rectify it.
Where there has been only collection but no
distribution of the assets by the Administrator-
General, such order ought, in accordance with
the rule laid down in J 54 of the Act, to award
only half of the full commission of 5 per cent.
SO y ASH ND ARAM ChETTI o. At) MI NISI RATOR-
GesEkal. Morgan, C.J, and /fines, J...L L.
Bep. 1 Mad. 148,1876.
i J4— Commission to Administrator-Gene-
See Boa Judicata, SI.
Smith v. Secretary of State..,
I. L. Hep. 3 Cal 840.
ADMISSIONS- Evidence of.
See Hindu Lav— Partition. 7.
Rah Coomar «. Jogender...I.
L. Sep. 4 Cal.
— By Co-Mortgagors of Service of Notice
of Foreclosure — Suit to Foreclose entire
Estate— Beng. Reg- XVII. of 1806, $ 8-
See Mortgage. 10.
NoRENDER 1. DwARKA LAL...L.
Bap. B I. A. IB ; I. 1. Bsp.
8 Cal. 397.
•^— By Co-Defendant.
Set Admission. 1.
See Privileged Communication. S.
Mbhon Hajee v. Molvi Abdul...
LL.B0p.8Bom.9l.
ADMISSIONS— tontd.
By one Co-Defendant — Admission by Impli-
cation^ An admission of afacton the pleading?
by implication is not an admission for any other
purpose than that of the particular issue, and is
not tantamount to proof of the fact. An admis-
sion, or even confession of judgment by one of
several defendants in a suit is no evidence
against another defendant. Per Cur. Aumir-
tolai. Bosk t. Rajoneekan-tMitteb...L. Bep.
a I A. 113, 120, 129, 1874.
S. C. under Hindu Law— Inherit-
ance—Dau ghtets— Daughter a1
Sons, and under Limitation.
ADMISSION OF BE VIEW AFT KB THE
EXPIBATION OF 90 DATS.
See Beview. 7.
Luchhan Singh «. Shumsheok
Singh...!.. Bep. 9 L A. 68.
ADMISSION BT SOME OF THE PAS-
TIES TO A DEED FBESENTED
FOB^BEOTBTBATION OF THEIB
EXECUTION THEBEOP, BUT
DENIAL BT THEM OF ITS
EXECUTION BT THE OTHEB
FABTLES— Procedure for Registering
Officer.
See Registration. S3.
Mahomed Ewaz e. Birj Lall...
L. Bep. 4 L A. 166.
ADMISSION BT TENANT OF LIABI.
LITT TO PATBENT— Non-Payment
by Occupancy Ryot for 13 Years, confers
no Title, nor makes Possession adverse.
See Limitation. 91.
Pokes H Nakains-KassiChunder.
I. L. Bep. 4 CaL 66L
ADMISSION OF TTME-BABBED AP-
PEAL.
See Time-barred Appeal. 1. 2.
Dubey Sahai v. Ganesh Lall... I.
L. Bap. 1 AU. 84.
ZaibulnissaBibiv.Kulsum Bibi...
I. L. Bep. 1 All. 2(50.
ADOPTED SON— Definition and Restriction
of Rights of— by Agreement between
Natural and Adoptive Parents.
See Hindu Law— Adoption. 8. 17.
Radhabai v- Ganesh. ..L L. Bep.
8 Bom. 7.
RamAswami j. Vencatarahaiyan.
L. Bap. 6 LA. 196.
D,gltlzed by G00gle
DIGEST OP CASES,
( M )
ADOPTED aOS'-mntd.
— — Inherits Property inherited by his Adoptive
Mather from her Father.
See Hindu Law — Inheritance —
Adopted Bon.
Sham Kuar b. Gava Din. ..I. L,
Rep. 1 AIL 2BB.
— 'Share of— and of a Natural Son on Partition
in a Mitakshara Family.
5m Hindu Law— Partition. 11.
Raghubanund v. Sadhu ..i. i,.
Bep. 4 Cat. 426.
ADOPTION— CANCELLATION OB BB-
STUNCIATION OF — By Adoptive
Father.
Set Hindu Law- ■ Adoption. 18.
Sukhbasi Lal v. Qdhah Singh...
I. L. Bep. 9 All. 8f».
ADOPTION-CONDITIONAL.
See Hindu Law- Adoption. 6. 17.
Radhabai v. Gane3h...I. L. Bep.
Rauasawmi
L. Bep. 6 I. A. 196 ; L I*
Bep. 3 Had. 81.
ADOPTION OF DAUGHTER'S SON-
Void among Brahmans, Kshattryas and
Vaishyas — Lingayets are Sudras-
Set Hindu Law— Adoption. 6. 7.
Gopal ». Hanmant...L L. Bep.
8 Bom. 273.
Bhagirthibai v. Radhabai
Ibid. 388.
- ■* Valid among Jains.
See Jain Law. 9.
Sheo Singh Ra( «. Mussuuut
DAKHo...I«.Bep.6I. A. 87 :
I. L. Bep. 1. AIL 688.
ADOPTION OF DISTANT KINSMAN
WHEN BOH OF BBOTHEB OF
WHOLE BLOOD EXISTS.
See Hindu Law— Adoption, 8.
Skimati Uma Devi v. Gokool-
ANAND...L.Bep.5I.A.40.
C. S. I. L, Bep. 8 Cal. 687.
ADOPTION OF ELDEST BON— Valid when
See Hindu Law— Adoption. 9.
JAKOKBt DSBBA B, GoPAUL AcUAR.
)U..LL.B«praCal.360,
ADOPTION GIFT AND ACCEPTANCE.
—Gift by Wife against Will of Husband,
void.
Set Hindu Law— Adoption. 16.
Ranqabai v. Bhagirthibai... L L.
Bep. 3 Bom. 877.
ADOPTION AMQNG JAINS- Daughter's
Son, valid.
Set Jain Law. 9.
Shbo Singh Rats. Musst. Dakho..
L. Bep. 6 L A. 87 ; I. L.
Bep. 1 AIL 088.
Sister's Son, valid.
Set Hindu Law— Adoption. 1,
Hassan Au «. Nag a Mai.... I. L.
Bep. 1 AH. 388.
ADOPTION — LIMITATION TO SUIT
TO SET ASIDE AN.
See Limitation. 66,
Raj Bahadoor •■ Acuuubit.,.L^
Bep. 6 LA. 110 ; 6 Cal.
Bep. 13.
ADOPTION BT MINOR.
See Hindu Law— Adoption. 10.
JUHOONA v. Bakasoondari ... L.
Bep. SI. A. 72; I. L.Bep.
ICaL 38e;26W.B.336.
ADOPTION OF MOTHEB'B BISTER'S
BON — Among Sudras — valid.
See Hindu Law— Adoption. 4.
Chinna Nagayva it. Pedda Na-
OAWA...I. L. Bep. 1 Had.
69.
ADOPTION— NON-BECOGNITION OF.
—Set Bombay Act IL of 1883,.
( 3, CL 3.
VASADBV 9. RAM KRISHNA... I. L>
Bep. 3 Bom. 698.
ADOPTION OF ONLT SON.
See Hindu Law— Adoption. 8.
Hanuhan Tiwari t>. Chirai... L
L. Bep. 3 AIL 164.
Valid— once effected.
See Hindu Law— Adoption. 3,
Janokee v. Gopaul.-.X. L. Bep.
9 Cal. 33ft.
— Void, in Bengal even among Sudras,
See Hindu Law —Adoption. 2. 3.
Janokee Debba v- Copal Aghar.
jia.-.L L. Bep. 2. CaL 866.
Manik Chunder e. Bhuoobutty.
LL Bep. S. CaL 448.
Diarized by Google
( 76 )
DIGEST OF CASES,
ADOPTION 07 ONLY SON 07 A SE-
PARATED BROTHER.
Ste Hindu La w— Adoption. 8.
Sri h ati Uha Deyi v. Gokoola-
hakd... L. Rep. S L A. 40 ;
L L. Bop. 3 Oal. 687 ; 3 Cat
Rap. SI.
ADOPTION—SANCTION OF GOVERN-
MENT FOR-Knlkanii Vatan— unne.
See Hindu Law— Adoption. 14.
Narhar ». Narrayen L L.
Rap- 1 Bool 607.
ADOPTION OF SISTER'S SON— Void
among Brahroans, Kshattryas, and Vaish-
yas — Lingayets are Sudias.
See Hindu Law— Adoption. 0. 7.
Gopal v- Hanhakt...L L. Rep.
3 Rom. 278.
Bhagibthibai v. Radhabai
Ibid. 398.
— Among Jains — Valid.
See Hindu Law— Adoption. 1.
Hassan Ali *. Naga Mal L
L. Rep. 1 AIL 388.
ADOPTION AHONO SUDRA&
Of Mother's Sister's Son— Valid.
See Hindu Law Adoption 4.
Chihna ». Peoda...L L. Rep. 1
Had. 82.
Of Only Son.
See Hindu Law— Adoption 2. 8.
Ma nick v. Bhugobutty... I. L.
Rep. 3- CaL 448.
] ANIKEE B. GOFAL... I. L. Rep. 3
CaL 365.
ADOPTTON— SUIT BY ADOPTIVE
FATHER TO SET ASIDE.
See Hindu Law — Adoption. IB.
SlIKBASf LAI. jr. GuMAN SlHCH...
I. L. Rep. 3 All, 306.
ADOPTION— SUIT BY HINDU WI-
DOW TO SET ASIDE— by Daughter-
in-law.
See Right, to me. 8.
JUMOONA jr. BaMASOONDERI.-.I. L.
Rep. 8 L A. 73 ; L L. Rep. 1
Cal. 289 ; 26 W. R. 389.
ADOPTION AHONO TALABDA KOLI
CASTE.
Set Hindu Law—Adoption. 16.
Bhala v. Parbhu.„I. I* Rep. 3
Bom. 67.
See Hindu Law - Adoption. 10.
J U MOON A W BAHASOONDEB1...L.
Rep. 8 I. A. 72 ; I. L. Rep. 1
Cal. 389 ; 25 W. R. 38S.
After Succeeding as Heiress to her Son.
&re Hindu Law— Adoption. 13. 17.
Rajah Vellanki v. Venkata...L.
Rep. 4 I. A 1 ; I. L. Rep. 1
Had. 174.
Ram as a win v. Vencataramaiyah.
L. Rep. 61. A 196; LL.
Rep. 2 Had. 9L
Consent of Sapindat in Undivided Family.
See Hindu Law— Adoption. 11.
SkiRaghunadav. Sri Brojo ..L.
Rep. 3 I. A. 101 ; I. L. Rep.
1 Had. 89.
Does not divest Property Vested by Inhe-
See Hindu Law— Adoption. 18.
Rally l*RosoKNor. GocoolChoh-
der... I. L. Rep. 2 CaL 286.
Among Jains — of Daughter's Son without
Permission of Husband or Consent of
Ki nsmen — valid .
See Jain Law. 2.
Sheo Singh Rai d. Mussumrr
Dakho...L. Rep. 5 1. A. 87;
L L. Rep. 1 All. 688.
Without Written Authority— Motives— As-
sent of Sapindas,
See Hindu Law— Adoption. 12.
Rajah Vellanki v. Venkata
Raha.L. Rep. 4 I. Al;
L L. Rep. 1 Had. 174.
ADULTERATION OF COTTON— In Fo-
reign Territory —Possess ion of Adulterated
Cotton in British Territory— Jurisdiction.
See Bombay Cotton Frauds' Act
Vn. of 1878.
Impx. v. Khimchand Narayan...
I. L. Rep. 3 Bora. 384.
ADULTERATED COTTON — Possession
of.
See Bombay Cotton Fraud*' Act
IX. of 1868.
Reg. «. Hanmant Gavda...I. L.
Rep. 1 Bom. 338,
Digitized byGOOC^Ie
( CT ) DIGEST OF CASES. ( 19 )
ADDXTBBY— Compounding— after Coovic- ADVERSE POSSESSION —conld.
See Compounding Offences. 8.
Empress v. Thompson L L.
Bap. 8 AIL 889.
^— Dissolution of Marriage Solemnized out of
British India — Jurisdiction.
See Divon». 8.
Fowlb «. Fowle.,,1, L. B. 4 Cat
360 ; 8 CaL Bep. 484.
— Marriage in Life-time of Husband— Caste
Custom.
5m Hindu Law — Inheritance —
Illegitimate Son. 8. 4.
Rahi s. Govihd I. L Hep.
1 Bom. 97.
See Penal Code, § 494.
Reg. e- Sambhu I. L. Bep. 1
Bom. 847.
— Offspring of — Right of — to Inherit and to
Maintenance,
See Custom among Gosavis and
Hindu Law — Inheritance —
Illegitimate Bon. 4. B. 8.
Narkayan «. Lavjhg...L L. Bep.
3 Bom. 140.
Rahi r. Govind L I* Bep. 1
Bom. 97.
VtBAUUTHI e. SlNOARAVELU I.
L. Bep. 1 Mad. 306.
ADVANCEMENT— Rule as to—not Preserv-
ed to Pareis.
Set Act III. of 1875, ( 8.
Danjibhait. Nawazbai L L.
Bep. 3 Bom. 70.
ADVEBSE POSSESSION -Acquisition of
Title by — to Diluviated Lands re-forming
on Old Site.
See Alluvial Lands.
Radha Fboshad e. Rah Coomar.
I. L. Bep. 8 Oal. 796 ; 1
CaL Bep. 798.
Declaration of Title may be made on Proof
of— for 12 Years, through Specific Title
also Alleged and not Proved.
See Declaratory Decree. 8. 6a. 6b.
Shiro «. Govind ...... I. L. B. 9
CaL 418.
Goluck o. Nundo ... I. L. B. 4
Oal. 690.
Gosaih Das v. Issur Chdndbr...
LL. Bep. 8 Oal. 934.
— Executor of Will of Hindu— Void Bequest
to Unascertained Class — Suit by Heir.
See Limitation. 38.
Kherodemoney «. Doorgakonby.
I. L. Bep. 4 CaL 466 ; 8 CaL
Bep. 112,
—Grant by Wife in Husband's Absence— Pos-
session of Grantee for twelve years, per-
fects Title.
Brjovo. Kally ... I. L. Bep, 4
CaL 897.
—Of Immoveable Property in Bombay Presi-
dency— Prescription.
See Prescription. 8.
Rambhat v. Collector of Poo-
na L L. B. I Bom. 893.
— Landlord and Tenant — Non-Payment of
Rent for twelve years by Occupancy Ryot
gives him no Title to the Land.
Set Limitation. SI.
Poreshv. Kassi L Ii. Bep. 4
CaL 661.
— Manager of Hindu Family holding Bulk of
Estate— Beer Land held by- Others.
See Hindu Law— Partition. 9.
Runjeet Singh o. Kooer Gujraj
Singh L. Bep. II. A. 9.
— By Mortgagee in Possession.
Set Mortgage. 87.
Ali Muhammad b.Lalya Bakhsh.
L L, Bep. 1 AIL 866.
■~Patilki Watan — Appointment by Collector
of Coparcener to officiate as Patil, does
not make Appointee's Posses si on — to
other admitted Coparceners.
Set Declaratory Decree. 19.
NlNDANGAVDA B, MalANGAVDA ...
I. L. Bep. 1 Bom. 633, n.
— Service Lands held On Succession of Life
Estates — Alienation by Incumbent — Pos-
session of Alienee — against Heir of
Alienor, from Death of latter.
Set Seanrice Watan.
Babaji *. Nana I- L. Bep. 1
Bom. 686, 686.
Diarized by Google
DIGEST OP CASES.
(
)
ADVERSE POmSMIOir-fMM.
— Service Lands — Death ot Grantee-
session of Heir — Right to resume.
See Resumption. 9.
Kbval Kuber v. Talookdari
SmuMMT Officer. ..I. L.
Rep. 1 Bom, 580.
-- Suit for Possession alleging Specific Title
and — Failure to prove Specific Title.
See Goluck Chundbr Masanta «.
Nundo Coonar Rov... I. L.
Hep. 4 Cal 680.
See Declaratory Decree. 6. 8a. 6b.
Shiho *. GoviNn. LI.Knp.2
Cal. 418.
Goluck *■ Nundo... L L. Bep. 4
CaL690.
Gossain Dass v. Issuh Chundbr.
1 L. Bep. 3 Cat 934,
—-—Suit to Redeem — Denial of Mortgage and
Allegation of Acquisition of Title bj.
See Onus Proband! 6.
RuTTON KOAR V. JlWAN SlNOH...
LL.Rop. 1 All. 104,
ADVOCATE GENEBAL-Case certified
by — Power of High Court on — to consider
the Merits.
See Evidence. 18,
RaO. V- HllRRlBOLK CH UNDER
Ghosk.,.1. I* Bep. 1 Cal.
807,
Set Power of the High Court on a
Case Reserved or Certified
to consider the Merita of the
Case.
Reg. r. PlTAMBBR JINA...L L.
Bep. S Bom. 61.
— — Necessity for making the — Party to Suit.
See Suit for Management of a Reli-
gious Endowment.
Panch cowrie MULLe. Chukroo-
LAIA...X. L. Bep. 8 CaL 068;
9 Oal. Bep, 121.
AD-VALOREM DTJTT— Annuity charged
on Testator's Estate.
See Court Fee*. 9,
Rushton-X Ii. Rep. 8 Cal. 786.
Annuity—" Value"— Court Fees' Act VII.
of 1870, Sched. 1, CI. II.
Bee Probate Duty. 1.
RaMCHANDRA LAKSHMANJI L
L. Bep. 1. Bom, 119,
AD-VALOREM DTJTY-wfA*.
On Probate taken out after Court Pees' Act
came into Operation.
See Court Fees. 0.
GASPRR...L L. Bep. 8 Cal. 788.
AFFIDAVIT— Cross-eiamioatioa on— as to
Documents.
See Practice— Civil. 8.
Kennellv*. Wvman ...I. I.. Bep.
1 Cal. 178.
Right to use— on Return to Writ of Habeas
Corfu* ad subjiciendum — Practice.
See Privilege from Arrest.
In the matter of Omhitolali. Dey.
I. L, Bep. 1 Cal. 78.
— Use of— on an Application for Transfer of
Case under Act X. of 1875, § 147.
See High Court Criminal Fro.
cedure ActX of 1876, f 147.
8.
Rbq. v, Hadjee Jbebith Bux.-.I,
T* Bep. 1 Cal. 864.
— . Use of — on Motion to Vary or Discbarge-
Commissioner's Report.
See Practice— Civil. 7.
Sumak Ahmed v. Haji Ismail.
X. L. Bep. 1 Bom. IBS.
AFFREIGHTMENT- -Contract of.
See Contract. 16.
Fleming v. Kohcler...!. I.
Bep, 4 Cal. 987.
AFTER-BORN CHILD— Gift to a Class-
Postponement of period of Distribution —
Child born after Testator's Death but
before Period of Distribution takes.
See Will. S.
Masjivkjt. Fergusson.,.1. L. Bep.
4 CaL 670.
AFTER TWO COUNTRY VOYAGES. "
Set Contract 16.
Fleming v. Koeolhr...I. L.Rep,
4 Cal. 987.
AGE OF MAJORITY -Minor to whom
Guardian ad litem Appointed.
See Majority Act IX. of 1876, { 8.
SrjmrA Gkosal v. Suttianund...
L 1. Bep. 1 C«L 888.
[. Hindu La*— Act XL. 0/1858— Uncon-
scionable Agreement — Usury.} A Hindu resident
and domiciled in Calcutta, but possessing land*
Digitized byGOO^Ie
DIGEST OF CASES.
AGE 07 MAJORITY- amtd.
in the Mofussi! paying revenue to Government,
being more than 16 and less than 17 years of
age, borrowed money in Calcutta from a pro-
fessional money-lender, which he, in Calcutta,
agreed to repay in Calcutta, with interest at 36
per cent, per annum. Having failed to pay, and
being in Calcutta, he was sued in the High
Court on the Original Side, for the amount of
money he had agreed to pay, with interest. Hi
had not been taken charge of— either as to his
person or property— by the Court of Wards,
by any Civil Court The defendant pleaded
minority i —
Held, by the Poll Bench, that the Hindu
Law in Calcutta as to the age of majority
not altered by Act XL. of 1858, and by that law
the end of 1 5 years is the age of majority of
Hindu resident and domiciled in the town of
Calcutta, and that the defendant k
minor at the time he executed the bond. On
the merits, however, the Court of Appeal {Garth,
C J., and Macphetson, J.) held, affirming the
judgment of Phear, J., that the plaintiff was
only entitled to a decree for the
actually received by the defendant from him
with interest at 6 per cent. Colly Churn
Mulliek v. Bhuggobulty Ckttrn tftdlitk (10 Beng,
L. Rep. 131) approved and followed. Mothoor-
HOHDN Roy *. SOORENDRO N ARA1N...I, It. Bop
1 CaL 109, 1870.
S. C. under Unconscionable Bar.
gain.
AOENT.
See Principal and Agent
-■ ■ Acknowledgment of Mortgagor's Title by
Mortgagee's — not sufficient.
See Acknowledgment of Mort-
gagor's Title. 3.
RAHMANI BlBI 0. HlILASA KlIAR...
X L. Rop. 1 AIL 649.
— Commission during Life — Sale of Subject-
matter of Agency — Compensation.
St* Compensation for Low of Com-
mission.
Cowasji Nanabhoy V. IjALLBHOV
Vallubhov ...8 Bom. H. O.
Bop. 0. C. J. 909 ; X. L.
Rep . 1 Bom. 408 ; L. Rep.
8 X. A. 900.
AGSNT-frnW.
Power of —to Bind Principal by Compro-
ise of Criminal Charge against Agent.
See Duress.
Mouno Shoay Att o. Ko Byaw-
L. Rep. 8LA,61;1L
Rep. 1 CaL 880.
AGENT 07 OWNER OF LAND— Duty of
— to give Information to the Police of
Offences.
See Criminal Procedure Code, Act
X of 1872, §90.1.
Empress s. Achtraj LALL...X. It.
Rep. 4 CaL 008.
AGREEMENT.
See Contract.
- To Alter the Course of Devolution of Pro-
petty prescribed by Law.
See Hindu Lav- Relinquishment
of Share by Son.
Balkkishna T. Tendulkar*. Sa-
vmuai.MLX.Bep. 8 Bom.
64,
Not to Appeal.
See Contract. ?.
Anant Das e. Ashbukner &
Co ...LI. Rep. 1 AIL 267.
— Consideration — Unlawful.
See Contract. 18.
Fateh Singh v. Sanyal.... X. L.
Rep. 1 AIL 70L
Set Consideration.
— Without Con side rati ou — Vo id.
See Contract. 6.
Manna Lai. «. Bank of Bengal...
I. L. Rep. 1 ALL 309.
— By Correspondence— Registration.
See Registration. 10.
See Contract. 2,
Port Canning Land, Ac, Co- t.
Smith... L. Rep. 1 I. A. 194;
L. Rep. 6 P. 0. 114.
- To Create an Interest in Immoveable Pro-
perty.
Set Registration. 18.
Vauji b- TMOKAS...I. L. Rep. 1
Bom. 190.
- Entered into in England, to be Performed
See Contract. 17.
Oakbs & Co. r. JACKSOH...I. It.
Bep.lXMl.184.
Digitized byGOO^Ie
DIGEST OF CASES.
- Executed and Stamped in England, subse-
quently Executed in India— Stamp.
See Contract. 17.
Oakes & Co. v. Jackson... I. L,
Bop. 1 Mad. 134.
- Not to Execute a Decree.
See EatoppeL 6.
PaRAU StNGH t. Lalji MAL...L
L. Bep. 1 All. 403.
- Affecting Land— Transfer o£ the Land.
See Covenant running with the
Land.
Abaci Begum b. Asa Ram.., I. L.
Hep. a All. 162.
See Specific Performance. 4.
Ana ka ran Kasmi v. Saidama-
dath Avulla.,,1. L. Bep. 2
See Inam Chitti,
Ramchandba v. Kalu L L.
Bep. S Bom. 362.
— For Purchase of Immoveable Property
contemplating a future Conveyance.
See Begirt ration. 12.
Valajc v. Thomas. ..I. L. Bep. 1
Bom. 190.
— To Purchase Future Interest in Immoveable
Property — Registration of.
See Registration. 10.
See Contract. 2.
Port Canning Land, &c, Co. v.
Smith.. X. Bep. 1 1. A. 124.
— To Refer to Arbitration — Revocation of.
See Contract. 8.
Koegler v. The Cobinga Oil Co.
X. L. Bep. 1 Cat 42, 466.
— To Refer to Arbitration — Specific Perform -
Set Contract. 8.
KotCLER c. The Cobinga Oil Co.
I. L. Bep. 1 CaL 43.
AGREEMENT— contd.
To Refer to Arbitration — Snit for Damages
for Breach of.
See Contract. 8.
Koegi.es v. The Coejnga Oil Go.
X. L. Bep. 1 CaL 42, 466.
In Restraint of Trade.
See Contract. 17.
Oakes At Co. «. Jackson. ..I. L.
Bep. 1 Mad. 184.
Sec Contract 17a.
Vaithelinoa o. Saminada ...X. L.
Bep. 2 Mad. 44.
To Share the Subject-matter of Litigation,
when against Public Policy.
See Champerty. 2.
Ram Coom ah «. Ck under Canto...
L. Bep. 41. A. 93; I. L.
Bop. 2 CaL 233.
To Supply Labour.
See Act XLU. of 1869.
Rowson v. Hanama Mestri...
1. 1, Bep. 1 Had. 280.
AGREEMENT TO Taint SHARES TS
A COMP AN Y- Memorandum of Association—
Material Variance— Prospectus.] The defend,
ant's munim, who had authority in that behalf,
on being shown a document which purported
to be the Memorandum of Association of the
plaintiffs Company, signed the same, in the
defendant's name, as having taken four shares.
This document was not registered as the Memo-
randum of Association of the Company, but
another was, which differed from the document
signed by the defendant's munim, in that it
omitted in the 4th clause the word yearly
before the word profits on which a certain com-
mission was to be paid to the Secretaries, Agents,
and Treasurers of the Company, and In substi-
tuting in the 6th Clause the words " The capital
of the Company is Rs. 40,000, divided into 400
shares of Rs. 100 each, subject to be increased
in accordance with the regulations of the Com-
pany and the legislative provisions for the time
being in force in this behalf, and which said
shorts may In divided, by a special resolution of
the shareholders in general meeting, into shares
of Rs. 500 or 250 each," for the words, " The
capital of the Company is Rs. 4,00,000, divided
into 400 shares of Rs. 1 ,000 each, with fovrtr to
increase," contained in the document signed by
the defendant's munim. In a suit brought by
D,gltlzed by G00gle
DIGEST OF CASES.
< 86 )
AGREEMENT TO TAKE SHARES IN AGREEMENT TO TAKE SHAREB IN
A COMPANY-««(.*. A COMPANY- contd.
the plaintiff Company to recover the anion
two calls on the four shares so signed for by
the defendant's munim : —
Held, that the case differed from those
which a person has been induced to take shares
on the faith of a prospectus. A prospectus is
the nature of instructions only for the proft
sional man to put into shape, in the same way
as an agreement is often the foundation for a
deed which may properly contain covenants anc
provisions not found in the agreement itself
and the only question which can arise is whethei
the obligations incurred under the Memorandum
do or do not go beyond those which would hav<
been incurred under the prospectus ; but the
Memorandum of Association is the Charter of
the company, and defines the limitation of tin
power of the company. The company is, so ti
speak, identified by its Memorandum of Associa
tion. A person, therefore, who is asked to taki
shares in a projected company of which he i:
shown the Memorandum of Association, and
consents to do so, does so on the full under-
standing that the document shown to him, or 3
true copy of it, will be registered as the Memo-
randum of Association. The company in which
he agrees to take shares is the company to be
Incorporated by the registration of that document
as its Memorandum of Association, and noothi
company ; and that the defendant, therefore,
would be entitled to say that he never agreed to
take shares in any company of which the docu-
ment signed by his munim, or a true copy of it,
was not registered as the Memorandum of Asso-
ciation ; but that, at any rate, the Memorandum
of Association was the basis of the agreement to
take shares ; and that, on the analogy of those
cases in which the Memorandum of Association
had differed materially from the prospectus, the
defendant must, in the absence of laches or other
special circumstances, be entitled to relief if the
variances between the registered Memorandum
of Association and that signed by his munim
were material.
No laches of the defendant were alleged ; and
though the first variance was not material, the
second was, as, even assuming that the provi-
sion empowering the Company to subdivide the
shares was illegal (a point which was not set-
tled or free from doubt), still it had practically
the effect of altering the position of the defend-
ant from what it would have been had the
document signed by his munim been registered
as the Memorandum of Association, and that,
therefore, the defendant was not a shareholder
in the company. Anandji Vbram o. Thi
Namad Spinning and Weaving Company.
Wtstropp, C. J., and Sargent, J ... J. L. Bop. 1
Bom. 330, 1870.
AOBEEKENT BETWEEN ADOPTIVE
AND NATURAL PARENTS OF
A MINOR GIVEN IN ADOPTION,
DEFINING OB RKBTRICTING
RIGHTS OF MINOR ON ADOP-
TION.
See Hindu Law— Adoption. B. 17.
Radhabaiv. Ganbsh...L L.Rop.
8 Bom. 7.
Rahaswaiii v. Vencatakamaivan.
L. Rep. 6 LA. 196; I. L.
Rep. 3 Mad. 91.
AGGREGATE SENTENCE— Conviction
on several Charges — Offence made up of
Parts.
See Criminal Procedure Code, Act
X. of 1872, f 464.
Empress «. Budk Singh... I. L.
Bep.SAU.101.
- Measures Right of Appeal.
Sec Appeal— Criminal, 8.
Ruts, v. Rama. ..I. L. Rep. 1 Bom.
328.
Where Offence Substantially Single, not to
exceed Punishment for greater Offence.
See Conviction on Several Charges.
1. 2.
Reg. v. Tukava...I. L. Rep. 1
Bom. 314.
Empress v. Rameshar Rai...I. L.
Bep. 1 AIL 879.
AE7AB— DISTBIOT COURT OF.
See Jurisdiction. 9.
Aedool Hamed...I. L. B. 4 Cal.
94;3CaLBep.485.
ALIENATION OF ANCESTRAL PRO-
PERTY- -Ry one of several Daughters
succeeding as Heirs— Right of Sons of
Deceased Daughter to set aside.
Sec Hindu Law— Inheritance—
Daughter*! Bona. 3.
Baijnath v. Makabir L L.
Bep. 1 AIL 608.
Diarized by Google
DIGEST OF CASES.
)
- Gift of Undivided Share by Member of
Undivided Family.
Set Hindu Law— Gift. 2.
Ballabh Das v. Sunder Das
I. L. Bep. 1 AIL 428
- For Maintenance of Illegitimate Son.
See Mhidu law— Maintenance of
Illegitimate Son. 8.
Rajah Parichat v- Zalim Singh.
L. Bap. 4 I. A. 169 ; L L.
Sop. S Cal. 214.
- By Member of Undivided Hindu Family
— of bis Share, by Voluntary Alienation.
See Hindu Law — Alienation of
Ancestral Property. 2. S. 4.
6.7.
Girdharsi Lalls. Kantoo Lall.
L. Hep. 1 L A. 321 ; 14
Bene;. L, Bep. 187.
MussT. Phoolbasv- Lalla Jage-
shub,..L. Bep. 3 I. A. 7;
I. L. Bep. 1 CaL 226.
Suraj Bunsi KoERt- Skeo Pier-
shad Singh. „L, Bep. 6 L
A. 88.
. Jallidar Singh v. Ram Lall
I. L. Bep. 4. Cal 728.
Chamalli Kuar e. Rah Prasad.
I. L.B.ep.2 All. 367.
Set Hindu Law—Gift. 2.
Ballabh Das v. Sunder Das
I. L. Bep. 1 All. 429.
See Hindu Law — Undivided
Family. 8.
Dibnoaval v. Jucdebp...!L. Bep.
4 I. A. 247 ; L L. Bep. 3
Cal. 198.
- Mortgage of Family House.
Set Hindu Law — Alienation of
Ancestral Property. 1.
Bhikah Das v. Pura...I. L. Bep.
2 AIL 141.
- Mortgage by Father during Son's Minority
— Suit to enforce Mortgage— Oshj Pra-
See Onus Probandi. 7.
Bheknarain Singh b. Januk
Singh I, L. Bep. 2 Cal.
ALIENATION OF ANCESTRAL PRO-
PEBTY-conW.
— Mortgage by Father — Purchaser at Execu-
tion Sale with Notice of Co-Sharers'
Claim — Effect of Execution Sale on the
Share of Deceased Judgment Debtor.
See Hindu Law— Alienation of
Ancestral Property. 4.
Suraj Bunsi Koer ». Shro Per-
shad Singh L. Rep. 3
LA, 88.
By Sale in Execution of Decree against a
Member of an Undivided Family.
See Bombay Act V. of 1882. 2.
Ardasir v. Mi-si.,,1, L. Bep. 1
Bom. 601.
Set Civil Procedure Code, Act
VIII. of 1869, i 289.
Kalapa v. Venkatesh ...L L.
Bep. 2 Bom. 678.
See Hindu Law— Alienation of
Ancestral Property. 1. 2. 3.
4.6.
Bhikan Das o. Pura I. L.
Bep. 2 AIL 141.
Girdharee Lall t. Kantoo
Lall. .L.Bep.lL A. 821;
14 Bengr. L. Bep. 187.
Mussr. Phoolbas Kookwar «.
Lalla Jackshuk Sahot ,..L.
Sep. 3 1. A. 7 ; I. L. Bep.
1 CaL 226.
Suhaj Bunsi Koer v. Sheo
Pksshao Singh. ..L, Bep. 6
L A. 88.
Jallidar Singh b. Ram Lall.
I. L. Bep. 4 CaL 723.
See Hindu Law— Gift. 2.
Ballaih Das e. Sunder Das...
I. L. Bep. 1 All 499.
See Hindu Law— Liability of An-
cestral Estate in the hands
of the Heir, for the Debts of
the Ancestor.
Narravan Acharva v. Narso
Krishna. ..L L. Rep. 1 Bom,
269.
See Hindu Law— Undivided. Pro-
perty. 8. 4. 7. 8.
Deendayal Lal«. Jugdeep Na-
rain Singh. ..L. Bep. 4 I. A.
247 ; I. L. Bep. 8 CaL 198.
Rai Narain Das e. Nownit I.al.
I. L. Bop. 4 OaL 809.
D.gmzed by G00gle
DIGEST OF CASES.
Lachmi Dai Koori e. Aswan
Singh. I. L. Rep. 2 Cftl. 213.
Babaji Lakshhan v. Vasadev
Venayek...L L. Rep. 1 Bom.
98.
See Sale in Execution of Decree. 10.
IB.
Venkatarahayyan b. Venkata.
SUBBRAHAKIA...I. L.Rttp. 1
Had. 368.
VENKATAsANI NaIK 0. KuPPAIYAN.
Ibid. 364.
See OnxiM Proband i. 8,
Adurhoni Devi »
Sib Naraih Kur I. L.
Sep. S C«l. 1,
By Will in Favour of one Son to Exclusion
of Others.
See Hindu Law— Will 11.
Lakshhan Dada Naik «. Ram-
chahdra Dada Naik. ..I. L.
Bop. 1 Bom. 661.
ALIENATION OP C HABIT Y FROrEB-
TT BT TRUSTEE.
See Breach of Trust.
Maniklaj. i. Maniksha I. L.
Bep. 1 Bom. 869.
ALIENATION OF DEWTJTTTJR PRO-
PBBTY BT MANAGER,
See Dewuttur. 2.
Konwur Dooroanatk Rot *.
Ram Chundbr Sen L L,
Bep.4 L A. 63; t L.Bep.
8 Cal. 341.
ALIENATION BY GUARDIAN.
6w Lien. 1.
Kuvarjre v. Mori ... L L. Bep.
8 Bom. 334.
Ste Hahomedan Law.— Sale by
Guardian,
Hasan Ali e. Mekdi Husain...
L L. Bep. 1 AIL 633.
See Mortgage. 30. 31.
Abhasi Begum v. Maharaner
RA]Roor...I. L. Bep. 4 CaL
33; 2 CaL Bep. 249.
ALIENATION BY GuABDIAN-owM.
Debi Dittt v. Subadra...L L.
Bep. 2 CaL 883.
See Review. 10.
Madho v. Rukman...L L. Bep.
9 AIL 287.
See Sale by Guardian.
1. Cause of Action— Limitation Act IX.
of 1871,5 7— Minority.') One K. R. died in 1844,
survived by his widow O. T. and an infant son
G. D. Jn 1847 0- T. executed in favour of the
defendant, a maurati ijara of the property in
suit, but did not describe herself in the document
as guardian or mother of G. D. C. D. died
before attaining majority, in 1855, and under an
anumati pattro executed by K. R. before his
death, 0 T. in 1858 adopted the plaintiff, who
attained his majority in 1873. 0. T. died in 1S61.
In a suit brought by the plaintiff in 1(75 to set
aside the maurati ijara granted to the defendant
by 0. T.:—
Held, that the alienation by O. T. was as
guardian of her minor son, G. D., who died a
minor, and to whom, therefore, no cause of action
accrued during his minority, and against whom
did not begin to run. The cause of action
arose on the plaintiff's attaining majority, and
the suit, having been brought within three years
from that date, was not barred. Even if the
alienation by 0. T. was made by her as a Hindu
widow, the suit was not barred, because the cause
:tion would then have accrued on her death,
and as at that time t tie plaintiff was a minor, the
present suit was within time, under § 7, Act
IX. of 1871. Prosonka Nath Roy Chowdrt
1. Afzolonhssa Begum. Milter and Afaoiean,
JJ...L L. Bep. 4 Oal. 683 ; SCaL Bep. 391,
1878.
2. Certificated Guardian— Act XL. of
1858— Power of Uncertificated Guardian.} The
declaration in Beng. Reg. V. of [799 that a
" guardian or nearest of kin who by special
appointment, or by the law and usage of the
country, may be authorized to act " for infaot or
npetent heirs of persons subject to the
diction of the Zillah Court, " is not required
to apply to the Courts of Justice for permission
to take possession of the estate of the deceased"
is not repealed by Act XL. of 1858.
By that Act, though the restriction previously
imposed on the jurisdiction of the Civil Court is
legislatively taken away, and the subject-matter
b, Google
DIGEST OF CASES.
(
)
ALIENATION BY QUARDIAN—ranfrf.
is expressly declared to be subject to that juris-
diction, yet resort to the Court is not made
obligatory, except in cases where a necessit
arises for commencing or defendingasuit An
even then, for any sufficient reason, tha Com
having jurisdiction may dispense with the
certificate.
All the sections of the Act from the 18th
onwards, respecting powers, duties, and respon-
sibilities, relate, not to guardians generally but
to persons appointed, or to whom certificates
have been granted, under the Act. As some
persons could take charge of the estates of
minors and maintain or defend suits connected
therewith, without having received certificates,
the rules in question apply only to certificated
managers and to guardians appointed under the
Act.
Section 18 applies in terms to a manager
acting under a certificate, and to such manager
only ; it confers on him generally the powers of
the owner, but in regard to acts of alienation
beyond certain limits, it requires that his acts,
in order to be valid, should have the previous
sanction of the Court; — a provision expedient
and proper in the case of a manager deriving
his power from, and accountable to, the Court,
but not suitable in the case of a manager alto-
gether unconnected with the Court. It is
impossible to support the view that no manager
can deal with a minor's property at all, unless a
certificate has been granted to him.
There Is no indication, whatever part of the
Act be examined, of any intention to alter or
affect any provisions of Hindu or Mahomedan
law as to guardians who do not avail themselves
of the Act. The scope of the enactment is
merely to remove legislative prohibitions, to
confer expressly a certain jurisdiction, and to
define exactly the position of those who avail
themselves of, or are brought under, the Act,
leaving persons to whom any existing rules of
law apply, unaffected. A Hindu widow, there,
fore, as natural guardian of her minor son, and
'not deriving powers from any appointment or
certificate under Act XL. of 1858, can give a
good title to a purchaser of the property of ber
minor son. Ram C bunder Chuckerbuttv v.
BjtojoNATH Mozuwdar L L. Rap. 4 Cat.
939 ; 4 Cal. Rep. 347, 1879, F. B.
ALIENATION BY HEIR-AT-LAW OF
MAHOMEDAN ESTATE— Right of
Creditors to follow Estate into the hands
of the Purchaser.
See Mahomedan Law— Right of
Creditors to follow Estate
of Debtor into hands of
Purchaser from Heir.
BazaybtHossein v. Dooli Chund.
LL.Rep.4CaL 409; L.
Sep. 5 I. A. 211.
ALIENATION BT HINDU WIDOW.
See Hindu Lav— Will. 6.
Mahomed Shumsool 0. Shewuk-
kah L. Rep. 2 I. A. 7,
— Accumulations.
See Hindu Law— Alienation by
Widow. 1.
Musst. Bhagbutti Dabe b.
Chowdhry Bholanath Tka-
koor L.Bep.2 I. A.
956; I.L.Rep. 1 Cal. 104.
- By Gift.
See Hindu Law— Gift. S.
Rudr Nakain Sing *. Rup
Kuar I, L. Rep. I AIL
734.
- Gift of Soudayakam.
See Hindu Law — Alienation by
Widow. 2,
Madhavaraya v. Tirtha Sahi...
I. L. Rep. 1 Mad. 807.
— Of Immoveable Property to pay Time-hai-
red Debt of Husband, valid, for ber Life.
See Hindu Law— Alienation by
Widow. 4.
And Hindu Law— Will. 8.
Nellaikumaru 0. Marakatkau-
HAL...I.L.Rep.IHad.I6a.
- Of Lands Purchased with Stridkan— Valid.
See Hindu Law— Alienation by
Widow. S.
Venkata h. Venkata...L L. Rep.
1 Had. 381.
Digitized byGOO^Ie
DIGEST OF CASES.
ALIENATION OF KIN OR1 8 PROPER-
TY.
See Alienation by Guardian.
See Hnhomedan Law— Bale by
Guardian.
See Mortgage. 80. 81.
Sec Review. 10.
See Sale by Guardian.
ALIENATOR OF PROPERTY UNDER
ATTACHMENT — Attachment
Properly Published — Alienation Valid.
See Civil Procedure Code, Act
VIH. of I860, (240.1.
Nur Mahomed v. Altar Ali...I.
L, Rep. 2 All, 58.
■ Attachment not Subsisting at Time of
Alienation — Alienation valid.
See Civil ProceduTa Code, Act
VIII. of 1B68, (240.2.
Zaib.un-Nissa e. Jairam GtB..
I. L. Rep. 1 All. 616
ALIENATION OF THE RIGHT OF
MANAGEMENT OF A PAGODA— Ural.
lore — Custom — Assignment of Trusteeship fa
Pecuniary Advantage of the Trustee.] The ap-
pellant claimed to be the assignee of the uraima
right, or right of management, of the Trachara-
niana pagoda and its subordinate chetroms, under
an assignment from the uratlers of that founda.
It appeared that the so-called pagoda was not
a pagoda in tbe ordinary sense of the word, but
was merely a platform in tbe middle of a forest,
upon which, once every year, certain ceremonies
take place in honour of a particular idol ; that to
this annual festival a large number of persons
resort ; that considerable presents are made there
by the worshippers ; and that the festival was a
matter of general interest to the Hindu inhabi.
tants of that part of the country. It also ap-
peared that the property of the trust consisted
partly of a large landed estate and partly of
jewels of great value.
It was admitted that, according to the constitu-
tion of the institution, the wallers for the time
being were to be the harnoaens or chief members
of four different tarwads.
The assignment in question was executed by
the then four waiters, and recited that the pa-
goda and its dependent institutions belonged
exclusively to the four taraads (families) of the
urallers ; that they were in defet to the amount
ALIENATION OF THE RIGHT OF
MANAGEMENT OF A PAGODA—
of Rs, 46,000 1 that this debt was likely to in.
crease ; that the appellant was willing to pay off
the debts, and take over the pagoda and its pro-
perty and conduct all the ceremonies ; that the
urallers had received Rs. 46,000 to pay the debts,
and Rs 10,000 for their own use. In considera-
tion of the above the deed assigned over to the
appellant all the property of the pagoda, and
uraima right of the four families, with tbe reser-
vation of their right to join in the assembly for
conducting the ceremonies, and receive the per-
quisites attached thereto : —
Held, that independently of custom, the ural.
lers had no power under the common law of
India to transfer their uraima right to the ap-
pellants.
And though the existence of a well proved and
established custom authorising such an alienation
would prevail against tbe general law, yet no
such custom bad been established in the present
When, owing to the absence of documentary
or other direct evidence of the nature of the
foundation, and the rights, duties, and powers of
the trustees, it becomes necessary to refer to
usage, the custom to be proved must be one
which regulates the particular institution.
Quart, whether in cases like the present any
such general custom (as that contended for) can
be set up and proved.
A custom to sanction not merely tbe transfer
of a trusteeship, but, as in this case, the sale of
a trusteeship for the pecuniary advantage of
the trustee would be bad in law. Raj ha Vur-
uah Valiao. Ravi Vurmah Mutha...L. Rep.
4 I. A. 76, 1876 ; I. L. Rep. 1 Mad. 235.
ALIENATION OF SELF-ACQUIRED
PROPERTY— Gift to one Son to Ex.
elusion of Others — Valid.
See Hindu Law— Gift. 1.
Sitae. 0. Marho... I. L. Bep.
1 AIL 394,
ALENATION OF SERVICE LANDS.
See Service Watan.
Babaji t. Nana... I. L. Rep. 1
Bom. 080, 036.
ALIENATION OF STHANAM LANDS.
See Malabar Law. 1.
CHSMklNIKAKA •■ KlLIVAHANAKT.
L L, Bep. 1 Mad. 86.
Digitized by GoOgle
(
)
DIGEST OF CASES.
( « )
ALIENATION BY TALOOKDAB-Right
of— Act I. of i86g.
See Oudh Proclamatiun of 1898,
para. 8.
HtlRPURSHADe. SHEO DVAL...X.
Rep. 3 I. A.
ALIEN ATION OF TBUBT PBOPEBTY
BY TRUSTEE.
See Breach of Trust.
Maniklalv. Mahiksha I. L.
Bep. 1 Bom, 368.
ALIMONY— Should not be converted in
Absolute interest in, and Charge on-
Husband's Estate.
See Divorce. 8.
Fowlb t. Fowl*. I. L. Rep. 4
CaL 880 ; 3 CaL Bap. 484
ALLUVIAL LANDS— LHluviated Lands-
Adverse Possession — Doctrine in Lopez's Case.]
The doctrine in the Case of Lopet v. Sfuddun
Mohun Tkaioor (13 Moo. I. A. 467 ; S. C. 5
Beng. L. Rep. 521) that diluviated lands,
forming on their old site, remain the property
of their original owner, does not apply to land
hi which, before or after their reformat!
indefeasible title has been acquired by another
person by adverse possession.
Where the plaintiff relies on an alleged
adverse possession of lands for 13 years before
or after their re-formation, the real point to be
decided, is whether he has thus acquired a title.
Radha Froshad Singh *■ Ram Coomar Singh.
L L. Bep. 8 CaL 796 ; 1 CaL Bop. 269,
1877, P. 0.
See Be-formation of Submerged
Land*.
Hurushai r. Svud Lootf Ali...
L. Bop. 3 L A. 38.
ALTEBATION 07 CONTRACT- Gxitract
Act IX. of 1873, § 37.] To a contract between
the plaintiffs and the defendant for the purchase
- by the defendant of a cargo of salt, the plain-
tiffs, after the contract had been signed by the
defendant, added in the margin : — " Ten days'
demurrage will be allowed at Rs. 350 per
Held, that the alteration did not amount to
an alteration or addition within the rule of
English law 1 the alteration must be either some-
thing which appears to be attested by the
signature, or something which alters the charac-
ter of the instrument. Ede t. Kahto Nath
Shaw. Kennedy,) X. L. Bep. 3 CaL 330,
1877.
ALTEBATION OP LAW PENDING
EXECUTION OF DECREE.
See Appeal— CiviL 6.
Chinto Joshi ». Krishnaji Na-
rayan...L L. Bep. 8 Bom.
431.
See Execution of Decree. 7.
Narandas n. Rai Manckha...
I. L. Bep. 8 Bom. 317.
ALTERATION OF PBOCKDUBE
PENDING A SUIT.
See Appeal— CiviL 3. 5. 9. 31. 25. 36.
See Civil Procedure Code, Act X
of 1877, f 343.
Rattans! Kallianji...!, L. Bep.
3 Bom. 148.
See Construction of Statute. 8.
SlTARAHv. KKANDBRAV I. L.
Bep. 1 Bom. 386.
ALTERNATIVE BELIEF.
See Misjoinder of Cauaea of Ac-
tion. 3.
Jancjkinath r. Ramrujun.,.1. L.
Bep. 4 CaL 949.
AMBIGUITY— Patent.
See Registration. 38.
Raju ». Kkishnarav.,.1. L. Bep.
3 Bom. 878.
AMBIGUOUS AGREEMENT.
See Mortgage. 16.
DiiOjiT v. Pitam.bak...I. L. Bep.
1 AIL 376.
AMBIGUOUS BXPBESSION- Repudia-
tion of Wife by an.
See Mahomedan Law— Divorce. 1.
Havid Au t, Imliazan I. L.
Bep. 3 AU. 71.
AMENDMENT OF CHARGE- Sanction to
prosecute under f 211, Penal Code, au-
thorizes Charge under f 192.
See Criminal Procedure Code, Act
X. of 1872, i 143. 1.
Empress v. Nifcha.,.1. L. Bep.
4 CaL 713.
AMENDMENT OF ISSUES AT IBB
HEARING— Practice:] "I do not say that,
under certain circumstances, the Judge at the
trial is precluded from allowing amendments, or
from raising issues other than those settled.
But what the Judge has decided at the settle..
lues by refusing to raise an issue, is a
by Google
DIGEST OF CASES.
question which ought not to be re-opened by
the Judge at the trial, and the Judge at the trial
ought not to modify issues so as to re-open any
questions which the Judge settling the issues has
decided." Boyle Chund Singh e. Maulard-
Wiltc*. J X. L. Bap. 4 CaL 678, 1878.
S. C under Tender.
AKXVSKBKT OF PLAINT.
See Attignmant of Mortgage.
Ganpat*. Adarii...I. I*. Rep. 8.
Bom. SIS.
See Civil Procedure Cod«, Act VUL
of 1809, ,7. 8.
Ram Tarrun v. Hossein Buksh...
I. L. Bep. 8 Cat. 780.
— Adding Parties — Suit against Agent—
Amendment by adding Principal refused.
See Fartiee to Suit. 7.
KOEGLEK V. PROSOIAMQ...I. L.
Bep. S Col. 47*.
— Disallowed in Appeal, where Objection
to Non-Joinder of Plaintiffs was taken in
Court below, and Defect not Remedied.
Sot Parties to Suit 9.
Dulak Chandc, Balsam Das-.
I. L. Bep. 1 All. 463.
— Originally, seeking Declaratory Decree, by
paying Court Pees on Ejectment Suit,
Refused.
Set Declaratory Decree, 8.
Chokalingapkshana v. Achiyar.
I. I* Rep. 1 Had. 40.
Suit for Calls against a Firm — Amendment
to charge one Member only Disallowed.
Set Company— Winding up-. .Con-
tributory. 1.
London, Bombay, and Meditkr-
IAmiah Bank «. Banji Zutani...
X. L. Sep. 3 Bom. 116.
Suit against Municipality— Substitution of
President for Secretary as Defendant.
Set Act XV. of 1873, | 43.
MANHr Kasaundhan v. Crooks...
L L. Rep. 8 All. 396.
Suit for Preemption.'] Where the plain.
tiff sued to enforce a right of pre-emption, alleg-
ing that the actual price of the property was
not the price named in the deed of sale, but a
smaller price, arid claimed the property on
payment of such smaller price, and did not
AKEKDXsnfT OP PLAINT-««W.
allege in his plaint that he was ready and
willing to pay any price which the Court might
find to be the actual price, and on the day that
his suit was finally disposed of presented an
application to the Court stating that he was
ready and willing to do so : —
Held, that the Court was not bound to allow
him to amend his plaint and bring into Court
the larger sum. Durga Prasad t>. Nawazish
Au. Pearson and Turner, JJ..X L. Rep. 1
All. 691, 1878.
fl. Act VIILof 1850, § 36, a. 4, and %%
1 3 5 ■ * 39' " nd ' * ' —Amendment of Plaint— Allege -
tionsaf Fact— Limitation— Act IX. 1/IS7 1, S 19—
Personal Equity."] The ancestor of the plaintiffs
obtained in 1817 from the Zemindar whem the
first defendant represented, a Maurasi istemrari
pottah of the lands to which the suit related, anil
obtained possession in 1837, in which year the
Zemindari was sold for arrears of Government re-
venue, and purchasedby Government as the high-
est bidder. Ttnerevenue sale was never set aside ;
t in 1842 the Government restored the estate
the Rajah Zemindar with all t ho prior encum-
brances and settlements, but subject to Bis. con.
finning an ijarak granted by Government to W.ot
a portion of the property for xo years. The Rajah
accordingly, on the 7th Jane 1842, granted W.
an ijarak pottah for 20 years, in confirmation of
the pottah granted by Government. In 1844 the
plaintiff's father instituted a suit in the Midna-
pore Principal Sudder Ameen's Court, to recover
possession of his maurasi tenure, which suit was
dismissed by the Principal Sudder Amin on the
17th of November 1846, on the ground that " it
appeared from the records of the case, and the
Rajah defendant's answer, that the claim was
established, but that the plaintiff was not entitled
to recover possession during the term of W.'s
ijarak." On appeal the Sudder Diwani Adaw-
lut reversed this decree in 1848, but it was res*
tored by the Privy Council by a decree made on
3rd February 1854, and W. re-entered into pos-
session. Before the expiry of the lease to W.,
owing to certain fraudulent transactions on the
part of A., who had got into possession of the
estate as the purchaser of the interests of certain
irrgagees of the Rajah, the property was again
s of Government reve.
as purchased by If-, a party to the
above mentioned fraudulent transactions. The
Rajah, however, succeeded in getting this sale
Digitized byGOO^Ie
DIGEST OF CASES.
AMENDMENT? OF PL AIST-contd.
reversed in 1 866, and obtained possession of his
estate in 1871- In a suit, instituted on the 23rd
October 1873, against the Rajah and certain
other parties to whom he had granted a patai
lease, the plaintiffs alleged that the sale of 1837
was set aside by Government as illegal, and that
consequently their tenure revived; that the
effect of the Principal Sudder Amin's decision,
confirmed by the Privy Council, was to postpone
their right to obtain possession of their tenure,
until after the expiration of W.'s lease ; that when
that lease expired the property was in the pos-
session of tf., of the fraudulent character of
whose title they had no knowledge ; and that their
right to sue in the present case consequently arose
only in 1871. The defence was that the plaint
disclosed no cause of action ; that the
of action, if any, was barred by limitation ;
and that the tenure was destroyed by the
proceedings connected with the sale in 1837,
which was never set aside. The Judge held
that the plaint disclosed a caaseof action which
accrued in 1837, and that the suit was consequent
ly barred, and he therefore dismissed the suil
without taking any evidence. On appeal to the
High Court it was admitted on the part of the
plaintiffs that the sale in 1837 was never set aside,
and that by the proceedings which took place
before the Collector consequent upon such sale,
the maurasi tenure then vested in the plaintiffs'
ancestor was put an end to; but it was contended
that as the Government returned the estate
the Rajah with alt its encumbrances, the plaintiffs
had, in consequence of the arrangement between
the Rajah, the Government, and W., a right
against the Rajah and all persons claiming under
him, other than purchasers for value without
notice, to be restored to bis tenure; that his
right was, by the decree of the Principal Sudder
Amin of 1848, declared to be suspended until the
expiration of W.'s ijarak; that this right was a
personal equity against the Rajah, which could
not be enforced when the ijarah expired against
the mortgagees of the Rajah, because they had no
notice of it; that this equity was destroyed by the
sale for arrears of revenue in 1S4S, but arose
again when the Rajah recovered possession of the
estate in 1871. For the defendants it was con-
tended that the plaintiffs ought not to be allowed
to start a new case on appeal, and that as the
equity now sought to be fastened on the Zemin-
dar was never raised in the pleading, it could
not now be set up : —
AMENDMENT OF PLAINT— contd.
Held, that the allegations of fact, set out
ibove, as relied on in appeal, did not materially
differ from those set out in the plaint, except as
to allegations relating to the setting aside of the
iles ; and that under §§ 139 and I41 of
Act VIII. of 1859 it was competent to the plain-
amend their case etany time before a
final decision, and to put it as they sought to put
it in appeal ; and as if the plaintiffs succeeded in
stablishing their case so amended, the Suit
would not be barred, it was necessary that the
suit should be remanded for trial.
Per Markby, J.— Section 19 of Act IX. of 1871
did not apply to this case, because the plaintiffs
did not allege that they claimed through M.QtA.,
by whose fraud they alleged they were kept in
ignorance of their rights. Taking CI. 5 of $ 36
of Act VIII. of 1859 with , 5, when a whole
estate bearing a name is sued for, the boundaries
need hot be given.
The practice that the Privy Council wish to
enforce by their decision in Eshen Chunder Sing
v. Shama Churn Bhutto (11 Moo. I. A. 7), when
they say at p. 20 that they desire to point out the
"absolute necessity that the determination in a
cause should be founded on a case to be found
in the pleadings, or involved in or consistent
with thecase made thereby," is not an absolutely
rigid adherence to the plaint and written state-
ments, which the Code (Act VIII. of 1850) de-
clares not be necessary, but that care should be
taken to raise property on the issues and at the
proper time the questions to be tried, so as to
give the parties an opportunity of producing
ir evidence and being heard on the points
which the decision <of the case ultimately
Per Milter,] — Queere, whether if the plaintiffs'
■so were established, their claim would not be
saved from the operation of the Law of Limita-
tion by § 29 oE Act I. of 1845. Ramdayal Khan
v. Ajoodhia Ramkhan. Markby and Mitter,
JJ L L.Bep. 2 Cal. 1,1876.
S. C. under Civil Procedure Code,
Act TUX of 1869, §26.
AMENDMENT OF PROBATE.
Bee Probate. 4.
In the Goods of White. .X L. Bop.
4 0*0.080.
D,gltlzed by G00gle
( iw >
DIGEST OF CASES.
AMENDMENT OF SUMMONS— Should
be allowed if taken out in wrong form
through Mistake of Clerk of Court.
See Small Cause Court— Presidency
Town. 2.
Mowla o. Bala ... I. L Bop. 3
Bom. 01.
ANCEBTBAL PBOPEBTY— Alienation by
Co-Sharer of Undivided Share in— by
Voluntary Alienation.
See Hindu Law- -Alifination of
Ancestral Property. 2. 3. 4.
6.7.
GlRDHAREB Lall v. Kahtoo Lall.
I*. Hep. 1 I. A. S21 ; 11
Beng. L. Bep. 187.
MUSST. PHOOLBAS KoOHAR V. LaLL
JUGGESHUR ROY...L. B*p. 3.
X.A.7;LL.Bep.lCaL
226.
Jaludar Singh b. Rah Lall... L
L. Bep. 4 CaL 723.
Chauaiu Kuar v- Ram Prashad.
L L. Bep. 2 AIL 267.
See Hindu Law— Gift. 2.
Baluihh Das «. Sunder Das...
L L. Bop. 1 All. 439.
See Hindu Law— Undivided Fa-
mily. 3.
Deendayal jt ]ugdebp...L. Bep.
4L A. 247; I. L. Bep. 3
Cal.198.
See Onus Probandi. 7. 8.
Adurhonit-ChowdhrvS-Kur...
L L. Bep. 8 CaL 1.
Bkeknarain 0. J AKU K...L L.B«p.
2 CaL 438.
— — Alienation of— by one of several Daughti
succeeding as Heirs— Right of Sons of
Deceased Daughter to set aside.
See Hindu Law— Inheritance. -
Daughter'! Bona.
Baijnath v. Mahakir- I. L.
Bep. 1 All. 608.
Alienation of— for Maintenance of Illegi-
timate Son.
See Hindu Law— Maintenance of
Illegitimate Son.
Rajah Parichat v. Zaliu Singh
L. Bep. 4 L A. 159 ; L L
Bep. 3 CaL 214.
ANCESTRAL PBOPEBTY- -contd.
- Gift of Undivided Share in.
it* Hindu Law— Gift 3.
Ballabk Das «. Sunder Das...
I. L. Bep. 1 All. 429.
- Immoveable Property Purchased with An-
cestral Property.
See Hindu Law— Ancestral Pro-
perty.
Sham Narain Singh «. Rughoo-
burdyal... I. L. Bep. 8 CaL
COS.
- Immoveable — Son's Interest in.
See Hindu Law— Undivided Fa-
mily. 5-
Baldeo Das v. Shah Lal... L L.
Bep. 1 AIL 77.
See Hindu Law— Liability of An-
cestral Estate in the hands
of the Heirs for the Debts
of the Ancestors -
Naravan Acharva v. Narso
Krishna. .. I. L. Bep. 1 Bom.
262.
- Liability of— in the hands of the Heir, to
Debt of the Ancestor.
See Hindu Law— Alienation of
Ancestral Property. 2. 8. 4.
GlRDHAREE LALL v. KANTO LaLL..
L. Bep. 1 1. A. 321.
Musst. Phoolbas Koonwar »-
Lalla Jogeshur Sahov...L.
Bep. 3 L A. 7 ; L L. Bep. 1
CaL 226.
Suraj Bunsi Kobr o. Shbo Pur-
shad Singh ..L.B.6LA.88.
See Hindu Law— Liability of An-
cestral Property in the
hands of the Heirs for the
Debts of the Ancestors.
Narain v. Narso...L L. Bep. I
Bom. 262.
See Hindu Law— Undivided Fami-
ly. 9.
NARSINBHATt.XHENAPPA...L L.
Bep. 2 Bom. 479.
- Mortgage of— by Father— Mitakshara
Law—purchaser at Execution Sale, with
Notice of Co-Sharers' Claims— Effect of
Execution Sale on Share of Deceased
Judgment Debtor-
Diarized by Google
DIGEST OF CASES.
ANCESTRAL PROPERTY— contd.
See Hindu Ltw — Alienation of
Ancestral Property. 4.
Sura j Bunsi Kobr v- Shbo Pur-
shad Singh. ..L. Rep. 6 1. A.
- Mortgage of —by Father during Son's Mi.
nority — Suit to Enforce Mortgage — Onus
Proband!.
See Onus Proband*. 7.
Bheeknarain «. Januk L L.
Sep. S CaL 488.
- Partition of — does not destroy its Ances-
tral Character.
•Sw Onus Probandi. 8.
Adurmoni r. Chowdhrv Sib Na-
kain L Z>. Rep. 8 CaL 1.
- Partition of— Right of Sons to Compel—
See Hindu Law— Partition. 1. 18.
Kali Parshad <r. Rah Cha'rn..
I. L. Eep . 1 All. 169.
Svraj Bunsi Kokr b. Shko Per-
shad Singh... L. Eep. 6 L
A. 88, 100.
- Sale of — in Execution of Decree agai
Father.
See Hindu Lav— Alienation of
Ancestral Property. 3.
GlRDHAREE L.ALL V. KANTO LaLL.
L. Bop. 1 L A. 831.
- Sale of — in Execution of Decree against
Member of Undivided Family.
See Bombay Act V. of 1883. 1.
Ardasib o, Muse...L L. Sep. 1
Bom. SOL
See Civil Procedure Code, Act
VTH. of 1868, f 869.
Kaiapa o. Vehkatbsh...L L.
Rep. 3 Bom. 678.
See Hindu Law — Alienation of
Ancestral Property. 1. 3. &
4.6.
Bhikan Das s. Puka.,,1. L.Rep.
9 All. 141.
G I RDM a res Lal. v. Kantoo Lal.
L. Sep. 1 1. A. 331.
Musst. Phoolbas v. Lalla Jo-
c-rshur L. Bep. 8L A. 7;
I. L. Bep. 1. CaL 336.
Soraj Bunsi Kokr v. Shro Par-
shad Sinc.L. Bep. 6LA.
ANCESTRAL FBOPERTY-ranU.
JallidakSing v. Ram Lall...L.
Bep. 4 Cal. 733.
See Hindu Law— Liability of
Ancestral Property in the
hands of the Heirs for the
Debts of the Ancestors.
Naravah Acharva ». Narso
Krishna. .XL. Bep.l Bom.
363.
See Hindu Law— Undivided Fami-
ly. 8. 4. 7. 8.
D BUND AVAL C- JuGDEEP NaRAIN..,
L L. Bep. 4 L A. 347 ; L
L. Rep. 3 CaL 188.
Rai Narain Das v. Nownit Lal...
L L. Bep. 4 Cal. 809.
Luchui Dai Koer «. Asm an
Singh X, L. Bep. 3 Cal.
313.
Babaji «. Vasadev,.X L Bep.
1 Bom. 95.
See Bale in Execution of Decree.
10.16.
Veh katar a m a w a n v. Vbnk at asu-
bramaniva...L L. Bep. 1
Mad. 368.
Venkatasaiii Naik e. Kufpaiyan.
Ibid. 864.
Sale of — by Father in Discharge of his
Debts.
Set Hindu Law— Alienation of
Ancestral Property. 2.
GlRDHAREE LALL *. Kantoo LaLL.
L. Bep. 1 L A. 331.
■ Sale of— by Father during Son's Minority —
Suit to set aside.
See Onus ProbandL 8.
Adurmoni v. Chowdhrv Sib Na.
rain L L. Bep. 8 CaL 1.
Sec Hindu Law— Alienation of An.
cestral Property. 7.
Chahaili Kuar v. Ram Prasad...
I. L. Rep. 3 AIL S67.
ANCEBTBAL TRADE— Carried on on be-
half of Undivided Family — Insolvency of
Manager — Widow's Right to Mainle.
Sa Hindu Law— Maintenance- of
Widow. 9. ,
JOHURRA S. SrEEGOPAL X. L.
Bep. 1 CaL 470.
D.gmzedbyGQOgle
DIGEST OF CASES.
ANCESTBAX T&ADZ—rontd.
Carried on on behalf of Infants — Liability •
of Infants for Debts.
Sn Hindu Law— Ancestral Trade.
Jovkistoo. NrrrvAKUKD L L.
Rep. 3 OaL 78S.
ANCIENT DOCUMENTS— Pre.su r
to Due Execution of.
See Evidence. 17.
liBILACK RAI v. DaLUAL RAI.-.X.
L. Bep. 3 OaL 657.
ANCIENT LIGHTS— Obstruct ion to.
See Mandatory Injunction,
Jamnadass v. Atmarah I. L.
Bep. 3 Bom. 183.
ANNUITY —Probate Duty—" Value"— Court
Fees' Act VII- of 1870, Sched. I., CI. II-
See Probate Duty. 1.
Ramckandra Lakshmanji...X, L.
Bep. 1 Bom. 118.
AJNNTTITY CHARGED ON TESTA-
TOR'S ESTATE— Deduction oi Capi-
talized Value of — in estimating Probate
Duty.
See Court Fees. 9.
Rushton...I.L. Bep.3CaL 736.
APPEAL— CIVIL— Abatement of.
See Abatement of Appeal — Civil.
MORESHWAR V. KUSHAEA I. L.
Bep. 2 Bom. 248.
Act XXVII. of i860, { 6— Appeal from
Remit of, or Omission to make, an Inquiry
See Appeal— Civil. 1.
Act XXVI I . of 1 860— Security— Appeal.
See Appeal— CiviL 4. 18.
Adding Parties to Record after Appeal
Barred.
See Partiea to Suit. 8.
The Court of Wards b. Gava
PARSAD..XL.Bep.2AU.107-
■ Admission of Time.barred.
See Time-barred Appeal.
Dabey Sahai I. Ganes:
L. Bep. 1 AIL 34.
Zaibulhissa Bibi v- Ku
I. L. Bep. 1 AIL 250.
See Oudh Talukdara' Belief Act
xxnr.ofi87o, §io.
RaM)Isda£ b. Raja Biiagvvan Bax.
L. Bep. 5 I. A 187.
APPEAL-CIVIX-^W.
- Admission of Unstamped or Insufficiently
Stamped Documents.
See Appeal— Civil 20.
And Error not affecting the Me-
rits. 1.
Afzal-un-Nissa «. Tbi Ban... I.
L. Bep. 1 AIL 725.
- Agreement not to.
See Contract, 7.
An ant Das v. Ash burner & Co...
I. L. Bep. 1 AIL 267.
- from Answers by a Full Bench.
Set Hindu Law— Alienation of
Ancestral Property. 3.
Mussr. Phoolbas v. Lalla Jo-
CBSUUR...L. Bep. 8 LA. 7;
I. L. Bep. 1 Cal. 326.
- against Assessment by Municipal Com-
missioner under Beng. Act III. of 1864,
§33-
Benc
tor, &c, of Chapra ..I. L.
Bep. 1 Oal. 400.
- by Auction Purchaser at Execution Sale,
against Order setting aside Sale.
See Appeal— Civil. 22.
- Award — Judgment according to.
See Arbitration. 4. 6.
Boon j ad Matkoor v. Nathoo
Shahoo-X L. Bep. 8CaL 876.
Vishnu ». Ravji I.L.Bep.3
Bom. 18.
—Award — Order directing Award to be Filed.
See Appeal— CiviL 13. 13a.
- Award — Refusal to Confirm.
See Appeal— Civil. 35.
- as to Costs — Mortgagee's Costs Refused
for Usury— Appellate Court will not in-
terfere.
See CoSU. 1.
Carvalkuv. NuKbibi...I. I.. Bep.
8 Bom. 202.
- as to Costs— Suit for Defamation — Nominal
Damages — Plaintiff ordered to pay De-
fendant's Costs — Order not Illegal— No
Special Appeal.
See Coat*. 2.
FlJLUCK V. Mo HINDER L L.
Bep. 1 Cal. 385.
DigitlzSdbvGoogle ■
DIGEST OF CASES.
APPEAL-CIVIL— amid.
— Custom set up in.
Set Pre-emption. 10. 12,
ChADAHI LAL 9- MUHAUUAD
BAKsii.,.1. L. Rep. 1 AIL 663.
Maraud Ali v. Adijul Hakim...
L L. Bap. 1 AIL 567.
— Date of Presentation of— is Date of Insti-
tution for purpose of Limitation.
Set Appeal— Civil, 14.
— from Decision on one of several Issues.
See Letters Patent (1866), (Calcut-
ta), i 16. a.
Ebkahim v. Fuchkunnissa Be-
gun...!; L. Bep. 4 OaL 631.
— from Decree in Accordance with Award of
Arbitrators.
See Arbitration. 4. 6.
Boon] ad Mat hook e. Nathoo
Shahoo. I. L. Bep. 3 OaL 876.
Vishnu o. Ravji ... L L. Bep. 3
Bom. 18.
— from Decree on Specially Registered
Agreement under Act XX. of 1 865, ( 53.
See Appeal— CiviL 7. 11. 13.
— to District Judge — Suit for Rent under
Rs. 100 — Question of Proprietary Right.
See ActXVm. of 1873, f 9& 8.
BjSHESHUR V. MUSAMAT SuGUN-
ohi I. L. Bep. 1 AIL 366.
— to District Judge — Value of Subject-t
ter in Dispute.
See Bengal Civil Courts' Act. VL
of 1871, §22.
Kali Char an Rai v- Ajudhia Rai-
L L. Bep. 2 AIL 148.
— Extending Time.
See Act XXVIII. Of 1860.
KrISHNAREDDI GoVINDARRDM V.
Stuart. L L. Bep, 1 Had. 103.
See Company— Winding up. 2.
Lallam Barroomal v. The Offi-
cial Liquidator.-.L L. Bep.
4aL 704.
— from Judgment of Division Bench.
Sec Letters Patent— Allahabad—
CL 10. 1.
Ghasi Ram v. Musamat Nuraj
BEGAM...LL.Bep.lALL3
APPEAL— CIVIL— amid.
from Judgment Ex-Parte and Order refus-
ing to Set aside same.
S« Appeal-Civil. 2.10.
from Judgment Ex-Parte against Defendant
who does not appear at the Adjourned
Hearing of a Suit.
See Civil Procedure Code, Act VUL
of I860, 5 119. 1.
Zain-ul-Abdin v. Ahmad Raia.
L L.Bep. 2 AIL 67} L.
Bep. 5 I. A. 333.
from Judgment Ex-Parte in Appeal.
See Appeal— CiviL 6. 28.
■ Jurisdiction — Course for Appellate Court to
adopt when it decides Lower Court had
Set Appeal-Civil. 3.
— - Limitation — Computation of Period of —
Time necessary to obtain Copies of Judg-
ment appealed against.
Set Letters Patent- Allahabad—
ol 10. a.
Fazal Muhammad^ Phul Kuar.
L L. Bep. 2 AIL 193.
— Limitation — Return of Memorandum for
Amendment.
See Appeal— CiviL 14.
— Memorandum of — Grounds not taken in.
See Appeal— CiviL 8,
— Notice of— Act X. of 1866, § 141.
See Company — Winding up. 9.
Lah-ah Barrooiiul t. The Offi-
cial Liquidator... I. L.Bep.
4CaL704.
— Objection not Raised in Courts below.
Set the Index heading Objection
not Raised in Court below.
— Objection not Raised in Memorandum of
See Appeal— CiviL &
— From Orders.
See Appeal from Orders.
— Party to the Suit — Alleged Purchaser of
5m Act XXUX of 1861, f 11. 1.
SOBHA BlBEEV.MlRZA SAKHAMUT
Ali,.. J. L. Bep. 3-CaL 371 ;
1 OaL Bep. 381.
Diaxized by Google
(
)
DIGEST OF CASES.
APPEAL— CIVIL— conld.
Party to the Suit— Purchaser of Decree-
Application by, to execute.
See Appeal— Civil. 9.
— from Refusal to Grant a Certificate under
Act XXVII. of i860.
See Appeal— Civil. 1.
— — by Respondent from Judgment Ex-ParU
See Appeal— Civil. 6.
—— Revival of Right of — on Compromise being
set aside.
See Revival of Eight of Appeal.
Ranee Khujooroonissa v. Musst.
Roushun Jehan...L- Rep.
8 1. A 391 ; I. L. Hep.
2CaLlS4.
Second Appeal — Absence of Notice of Ac-
tion— Plea of.
&eAct3EV. of 1873. 1. .
. Committee of Mo-
> v. Chatri Singh... I.
L. Hep. 1 AIL 269.
Second Appeal as to Costs.
See Costs. S.
Fuluk v. M0HBNDER...I. L. Hep.
ICal. 380.
— — Second Appeal— Evidence, Power of High
Court to Consider.
See Contract. 16.
Nahak v. Mahin...I. L. Hop.
AIL 487.
See Enhancement of Kent, 8.
Msbr Mahomed v. Forbes.. ,LB,
2 I. A. 1 ; 22 W. R. 316.
— — Seco nd Appeal —Ei-fiirrV Decree — Rehear-
ing Granted after time Limited.
See Civil Procedure Code, Act
VIII. of 1869, §119.2.
RUNOLALL V. TOKHUH ... X. I>.
Hep. 2 Cal. 114.
^— Second Appeal — from Judgment Ex-Partt
See Appeal— Civil 6. 87.
n not Raised i
See The Index heading Objection
not Bailed in Court below.
— Second Appeal — from Order in Execution.
Set Appeal-CiviL 37. 29.
APPEAL— CIVIL— ton id.
Second Appeal — from Order Returning
Plaint
See Appeal— CiviL 26.
— Second Appeal — by Purchaser from Defend-
ant after Adverse Decree.
See Abatement of Appeal— CiviL
MoRESHWAR V. KdSHAflA.. I. L.
Rep. S Bom. 248.
— Second Appeal in Suits Cognizable by
Small Cause Court.
See Appeal— CiviL 32.
See The Cases under Small Cause
Court— UofouiL
Security under Act XXVII. of 1S60.
Sw Appeal— CiviL 4. 16.
■ Security for Costs — Extending Time for
Deposit of.
See Security for Costa. 1.
Haidri B11 v. The E. I. Ry. Co...
I. L. Rep. 1 AIL 687.
Security for Costs of — Poverty no Grou nd
for requiring.
See Security for Costa. 2.
Manekji v. Goolbai...I. L. Rep.
3 Bom. 241.
by Some ol Several Defendants — Grounds
common to all.
See Contribution. 1.
Hiha Chand v. Abdal.-.I. Ii.
Rep. 1 All. 4S5.
Suit Filed before Act X. of 1877— Decisioo
passed after that Act.
See Appeal— CiviL 21.
Suit Filed before Act X. of 1877— Decision
passed before that Act.
See Appeal— Civil. 9.
— Suit for Rent under Rs. 100.
See Appeal— Civil. 88.
See Act XVm. of 1878, § 93. 8.
Bisheshuk Singh v. Musahat
Suc-undi,..!, L. Bep. 1 All.
866.
In Suits tried in the Sonthal Pergannas.
Sec Jurisdiction. 1L
Surcharge Lall v. Mansoor
Ally Khah.-.L L. Bep. 8
Cal. 288.
D.gmzed by GoOgle
DIGEST OF CASES.
APPEAL— CIVIL— contd.
— Time-barred — Admission of.
Set Time-barred Appeal
Ducky Sahai v. Ganssh Lall...L
L. Rop. 1 AIL 34.
Zaibulnissa Bibi «. Kuisum Bibi-
L L.Bep. 3 AIL 010.
See Oudh Talukdare' Belief Act
XXXV. of 1870, *10.
Raujisdas v. Rajah Bhaowan
BAX...L. Bep. IS I. A. 187.
1. Act XXVIL of i860, i 6. J A. applied
for a certificate under Act XXVII. of i860. B.
opposed the application, having herself applied
for a certificate. A question having arisen as to
B.'s identity, an inquiry .was commenced by the
Judge, and the matter adjourned for the exami-
nation of certain witnesses on commission-
Before their evidence was taken, the Judge, on
reconsideration, being of opinion that he had
sufficient evidence to enable him to decide the
case, refused to grant a certificate to A., who
appealed to the High Court : —
Held, that the appeal lay. An appeal lies
from the result of an inquiry, or omission to
make an inquiry, under the Act. Section 6 of
the Act recognizes and declares the power of the
High Court to superintend the proceedings of
the District Court, and enables parties to have
the benefit of that superintendence by way of
appeal. The proceedings were accordingly sent
back to the District Court in order that the
inquiry should be completed- Tarini Churn
BROHMO v. BAMASOON DEREK DOSSBB. .. Jucisvn
and Hitter, JJ...L;L. Bep. 1 Cal. 128, 1873.
2. — — Appeal against an Ei-parte Decree,
and Order refusing to set the same aside — Civil
Procedure Code, AH X.ofl&J7,H 540, 591.] li
the provisions relating to the setting aside of et
parte decrees, the new Civil Procedure Code, Act
X- of 1877, departs from the provisions contained
in the Code of 1859. This latter, by f 1 10,
pressly prohibited appeals against ex-partt
crees. The former does not contain any such
prohibition; and J 540 is wide enoug
such appeals.
In omitting from f 591 of the new Code the
words " prior to decree" which were in f 363 of
the old Code, the intention of the Legislature
would appear to have been to allow the defend,
ant, when appealing, as he has a right to do,
against the ex -parte decree, to appeal also
APFE0AL-CTV1L ■amid.
against the order, made after decree, refusing to
set the decree aside. This is probably the
reason why no special provision was made in §
"" for an immediate appeal incases of this kind,
as it would be useless to give a right of appeal
against the order of refusal, unless there was also
given an appeal against the decree. An appeal,
therefore, against a decree passed ex.parteagaiast
the defendant, in a suit on a promissory note
under the provisions of Chapter XXXIX. of the
Civil Procedure Code of 1877, and against art
order refusing to set aside such decree, admitted.
Lackimdass Vithaldas v. Ebrahim Oshan.
Westropp, C.J., and Bayley, J ...I. L. Bep. S
Bom. 044, 1879.
Set infra. 10, 38.
8. Jurisdiction, Want of— Course for
Appellate Court to adept.') Where the Appellate
Court decides that the Lower Court had do
jurisdiction to entertain the suit, it should return
the plaint to the plaintiff in order that he may
present it to the proper Court. Bai Makhor i-
ChalKI. Kemball and .V. Harridan,
J.J I.L. Bep. 1 Bom. 688, 1874.
S- C under Jurisdiction. 19.
. Act XXVII. of i860, i 6— Deposit of
Security by Person entitled to Certificate.'] No
appeal lies under Act XXVII. of i860 on a
question of taking security from a person who
has been declared entitled to a certificate under
the Act. Monmohihbe Dasseb v. K hatter
Gopaul Dry. Glover and Milter, JJ...1 L. Bep.
1 CaL 127, 1875.
See In the matter of the Petition of
Rukmin.-.L L. Bep. 1 All.
fl87, infra. 16.
B. Execution of Decree — Proceedings
commenced under Act VIII. of 18513 — Sale ire
Execution after Act X. of 1877 in force.) Pro-
ceedings, to execute a decree commenced while
Act VIII. of 1859 was in force; but property of
the judgment-debtor was sold in pursuance of
those proceedings after Act X. of 1877 came into
operation. Subsequently, the judgment -debtor
applied to have the sale set aside, on the ground
of irregularity in conducting the sale, and this
application was granted.
Held, that the application for execution having
been made while Act VIII. of 1S59 was in force,
the proceedings under it would, according to the
provisions of Act I. of 1868, be governed by Act
Digitized byGOO^Ie
DIGEST OF CASES.
APPEAL— CIVIL— cvntd.
VII). of 1859, notwithstanding the appeal, and
that the application to set aside the sale was so
intimately connected with the proceedings in
execution, that it must be regarded as a part of
those proceedings. The sale was made
the old law, and the purchaser bought subject
to these conditions, and suffered no haidship
h having them applied to him. The order,
therefore, setting aside the sale was governed
by the former Code, and was not subject to
appeal. Chinto Joshi e. Krishnaji Narayan.
West and Pinhey, JJ L L. Bop. 3 Bom.
314, 1879.
Bee infra. 9, 97. 99.
8. By Respondent from Judgment ex-
parte in Appeal-Act VIII. of 1859, f 119.]
Section 1 19 of Act VIII. of 1859 applies only t
the case of a defendant who does not appear i
the Court of first instance, and not to that of
respondeat who does not appear in a lower
Court of Appeal, who is, therefore, not preclud.
ed by his non-appearance in such Court from
preferring an appeal to the High Court from a
decision passed against him ex-forte in the
Lower Appellate Court. Kali Kishore Roy
•■ DhijNUNJOY Roy. Garth, C. ]., and Birch,]...
L L. Bep. 8 Cal. 998, 1877.
S. C under Limitation. 60.
7. Registration Act XX. of 1S66, §§ 52,
53 — Decree — Execution.'] There is no appeal
from a decree, nor from orders passed in execu-
tion of a decree, obtained under § 53 of Act XX.
of 1S66 upon an agreement specially registered
under § 52 of that Act.
Hurnath Chattcjec v. FuUick Ohunder
Summadar (18 W. Rep. $>?.), Radha Kristo
Di&tv. Gunga Narain Chatterjte (23 W. Rep.
328), Huro Soonduree Debia v. Punchoo Bam
Uundul (24 W. Rep. 22$), followed 1—
Bhybub Chunder v. Golaf Coomary. Kemp
and Morris, JJ L L. Bep. 8 Cal. 617,
1878.
Sec Ramanand t. Bank of Bengal...
I, L. Bep. 1 All. 877.
And WtLAYAT-UN.NlSSA v. Najibun-
NisSA...Ibid. 683. Infra. 11
and 19.
8. —Practice— Ground of Appeal taken
in Argument.'] Although, as a rule, the High
Court will not allow grounds of appeal to be
Liken in argument which have not been taken
APPEAL— CIVIL— contd.
the Memorandum of Appeal, jet where a
decree comes before it which is on its very face
illegal, the Court is bound to take up the point
itself and rectify the mistake. Poran Sookk
Chunder b. Parbbutty Dossee. Jackson and
Kennedy, JJ I. L. Rop. 8 Cat. 619, 1878.
S. C. under Declaratory Decree.
13.
Act X. of i877,S53. 540. 591, 647—
Act l.jif 1868, §6 — Decree — Judicial Proceedings
—Procedure— Letters Patent (Calcutta), 1865, CI.
16.] In all suits instituted before Act X. of 1877
came into force, in which an appeal lay to the
High Court under Act VIII. of 1859, an appeal
still lies, notwithstanding the repeal of that Act
by Act X. of 1877.
Per Garth, C.J. — A suit is a judicial proceed-
ing, and the words " any proceeding "in § 6,
Act I. of 1868, include all proceedings in any
suit from the date of its institution to its final
disposal, and include proceedings in appeal.
The word "procedure" in § 3 of Act X. of
S77 has not the same meaning as the word
'proceedings" in Act I. of tS6S, § 6.
The proceedings in any suit commenced be-
fore Act X. of 1877 came into operation, includ*
special appeal, if the old Civil Procedure
Code allowed one, go on as before ; but the pro-
cedure, or machinery by which those proceed
ngs are conducted, is, after decree, to be that
vhich is provided by the new Code, Act X. of
(877.
Ratanchand Shrichand v. Hanmantraa Sada-
skii (6 Bon. H. C. Rep. A. C. ]. 166} approved.
Per Jackson, J— The appeal given by § 588 of
Act X. of 1877 applies to orders made under
that Act, and to no others ; and the finality
given by the same section to appellate decisions
of that nature is confined to orders passed in
appe;
Is under that si
The word "decree"
I 3 of Act X. of 1877 does not include orders,
either original or appellate, upon matters aris-
ing in the course of a suit, or in execution of
the decree.
The decision of the Appellate Court on an
appeal from the original decree is, in truth, the
result of the decision of the suit by that Court,
and, therefore, comes at once within the defini-
tion of a "decree."
The "judicial proceedings" referred to in the
same definition, are those provided for in § 647,
■nd are altogether outside regular suits-
b, Google
DIGEST OF CASES.
APPEAL— OXVXL-anM.
The power ol the High Court of Calcutta to
hear appeals from the Civil Courts in the
rior is regulated by Act VI. of 1871. Sections
oE Act I. of i36S covers specific proceedings
taken i n execution of a decree which have been
commenced before Act X. of 1877 came into force.
The effect of that section and of J 3 of Act X.
of 1877 is, (l) that the procedure in suits insti-
tuted after Act X. of 1877 came into force will
be wholly subject to its provisions ; (a), the
ceedure in suits commenced before that Act
came into force and pending at that time will
be regulated by the previous law up to decree,
and by that Act after decree ; and (3), the pro-
cedure after decree in suits determined before
Act X. of 1877 came into force, would there-
after be governed entirely by the Act as to new
proceedings but not as to proceedings already
commenced.
Per ttarkby and Hitter, ]]■— No appeal lies,
under Act X. of 1877, from an order passed be-
fore that Act came into force, rejecting an ap-
plication under § zoS of Act VIII. of 1859, by
the purchaser of a decree, to be allowed to exe-
cute the decree. Nor will such an appeal lie under
CI. 16 of the Letters Patent (Calcutta), 1865,
as that clause only empowers the High Court at
Calcutta to hear appeals in such cases as were
subject to appeal to the High Court by virtue
of any laws or regulations then in force; and
such an appeal would not have lain under either
Act VIII. of 1859, or Act XXIII of 1861,1 II.
But notwithstanding the repeal of this latter
enactment by Act X. of 1877, an appeal will lie
to the High Court (Calcutta), under CI- 16 of
the Letters Patent (Calcutta), 1865, from an
order passed in execution of a decree before
Act X- of 1877 came into operation, from which
an appeal lay to the High Court under the pro-
visions of Acts VIII. of 1850, and XXIII. of
1861, and where there is nothing in Act X. of
1877 expressly prohibiting such an appeal. The
power of the High Court to hear an appeal car-
ries with it, as a necessary consequence, the
right to an appellant to present to that Court a
petition of appeal. Runjit Singh v. Meherban
Kof.r...I. L. Bop. 3 Cftl. 663 ; 8 Oal. Sep.
381, 1878, F. B.
See 5. 27.89.
10. Registration Act VIII. of 1 87 1,(76—
Act III. of 1877, { 2— Act I. of 1S68, f 6— Refu-
sal to register.] On the 23rd of August 1872, an
APPEAL— CIVIL— contd.
order was passed;rejecting an appeal against an
order refusing^ register a deed ; and while Act
VIII. of 1671 was in force an application for a
review of (his order was presented, and finally
rejected on the 20th December 1877, after
Act VIII. of 1871 had been repealed by Act III.
0(1877-.—
Held, that by the provision of j 6 of Act 1. of
186S, the repeal of Act VIII. of 1871 did not
affect any proceedings commenced before the
epealing Act III. of 1877 came into operation ;
and that the proceedings in the present case,
therefore, must be governed by the provisions
of the Act in force at the time they were insti-
tuted— namely, Act VIII. of 1871 ; and by J 76
of that Act no appeal lay from the order com-
plained of. Svud Mahomkt Hossei n t. Hadzi
Abdullah. Ainslit and McDtmeil, JJ....I. It.
Rep. 3 OaL 727, 1878.
II. Act XX. of 1866, ( 52— Act VIII. of
8S9. 1 *73— Execution— Act VIII. 0/1871.] No
appeal lies against orders passed in execution
of decrees under Act XX. of 1 866, the procedure
under that Act having been expressly saved by
Act VIII. of 1871 which repealed Act XX- of
Ramanand e. The Bank of Bengal.
Stuart, C.J., and Old/h-ld, J...Z. It. Bap. 1 All.
377, 1877.
Overruled by
WlLAYAT-UN-NlSSA V. NAJIB-UN-
Nissa... Ibid. 688, infra 12.
13, Execution of Decree on Specially
Registered Bond—Act XX. of 1866, f S3—
Appeal— Act IX. of 1871, Sched. II., Art. 167.]
Hetd,hy Pearson, Turner, and Spantie, ]]., that
appeal lies from an order passed in the execu-
tion of a decree obtained under the provisions
of J S3 of Act XX of 1866 on a bond specially
registered under § 52 of that Act.
Ramanand v. The Bank of Bengal (I. L. Rep.
Ail. 377) overruled.
By Stuart, C.J .—The provisions in g 53 of
Act XX of 1866, that " such decree may be
enforced forthwith under the provisions for the
enforcement of decrees contained in the Code
of Civil Procedure," lets in the Code so far as
the enforcement of decrees made under that por-
tion of Act XX. of 1S66, is concerned, but it is
tbe law that § 53 lets in and enforces the
e provisions of Act VIII. of I&S9 relating to
ecrees. To hold otherwise would
effect, to render nugatory | 55 of Act XX.
hy Google
DIGEST OF CASES.
APFBAL-CmL-«m».
of 1866, which provides that there shall be tie
appeal against any decree or order made under
§§ S3. S4i or IMs section." To that extent, there-
tore, this section forbids the application of the
Code o[ Civil Procedure, that is, so tax as appeals
are concerned.
Per Turner, J.— Art. 167 of Sched. II. of Act
IX. of 1871 applies to decrees obtained under
the special provisions of Act XX. of 1866,
WrLAYUT-iiN-NissA o. Najib-un Nissa.-.L L.
Sep. 1 All, 683, 1878, F. B.
See Bhyrub Chunder v. Goolad Coo-
HAKV...L L. Hep. 8 Oftl. 617.
Supra. 7.
IS. Act VIU. of |8J9, f 3»7 — Order
directing Award to be filed.] The plaintiff ap-
plied, under S337 of Act VIII. of 1859, to file and
enforce an award made upon a reference to
arbitration without the intervention of the Court.
The defendant denied referring the matter de-
cided by the award, to arbitration, or any know-
ledge of the arbitration proceedings; but the
Court to which the application was made, after
taking evidence, decided that the reference was
made by an authorized agent of the defendant
and with the defendant's knowledge, and accord-
ingly ordered the award to be filed, but did not
pass any decree enforcing the award :—
Held, following Jokkun Rai v. Bucho Rai (H.
C Rep. N. W. P., 1868, p. 353,) that no appeal
lay from the order directing the award to be
filed, as it did not operate as a decree.
Per SpankU, J.— Section 327 of Act VIII, of
1859 was intended to apply only to those cases in
which a reference to arbitration is admitted and
in which an award has been made. Where one
of the parties denies that he had referred any
dispute to arbitration, or that an award had been
made between himself and the other party, that
is sufficient cause why the award should not be
filed- The applicant for its admission should be
left to bring a regular suit for the enforcement
of the award. Hussaini Bibi s. Mohsin Khan.
Spantu and Otdfield, JJ...L L. Bap- 1 AIL
108, 1876.
S. C under Arbitration. 5.
497, Vol. 2, OoL 76.
APPEAL— CIVIL— contd.
13a, Order directing Amtrdtoee filed —
Act X- of 1877, 55 JJO to SM, 525. S«S.5>8.] In
a suit by the plaintiff, claiming under 5 525 of
Act X. of 1877, that an award made on a private
reference to arbitration should be filed in Court,
the Court of first instance holding that there was
no reason to remit the award for the reconsider-
ation of the arbitrator, under § 530, or to set it
aside under 5 S*i of that Act, did not proceed
to give judgment according to such award fol-
lowed by a decree, but merely directed that the
award should be filed :—
Held, that the order was not appealable as an
order or as a decree. Ramadhin «. Mahhsh.
Stuart, C.J., and OUfieli, J...1 L. Bep. S AIL
471, 1879.
14.— Art VIU. of 1859, $3&~Appeat
when instituted — Limitation.'] Where under the
provisions of Act VIII. of 1859, 5; 336, a memoran-
dum of appeal is returned for the purpose of
being corrected, the Appellate Court should spe-
cify a time for sucb correction.
Where an appellant presented an appeal
within the period of limitation, and the Appel-
late Court returned the memorandum of appeal
for correction, without specifying a time for such
correction, and the amended memorandum was
presented some days after the period of limita-
tion : — Held, that the appeal was within time,
the date of the presentation of the appeal being
the date on which it was first presented. Jagan
Nath e. Lalhah. Turner and Sfiantie, J]. ... I.
L. Bep. 1 AU. 260, 1876.
IB.-^Deeree — Judgment.-] The plaintiffs
claimed, as heirs of G., possession of certain
lands from the defendants, alleging that G. had
mortgaged them to the defendants, and that the
debt had been satisfied from the usufruct. The
defendants denied that the plaintiffs were the
heirs of C, and asserted that they themselves
G.'s heirs and held the land in suit as
such, having originally held them under the
mortgage, which they alleged was not satisfied
from the usufruct. The Court of first instance
found that the plaintiffs were the heirs of ft,
dismissed the suit on the ground that the
mortgage-debt had not been satisfied. The
decree "ordered that the plaintiffs' suit be
dismissed in its present form."
The lower Appellate Court dismissed an
ippeal by the defendants impugning the decision
that the plaintiffs were the heirs of G., on the
exiled by Google
DIGEST OF CASES.
APPEAL-CIVIL~«n«.
ground that the appeal was against the decision
and not against the decree of the Court oE first
instance, referring to Pan Kaer v. Bhugaat
Koer (H. C. Rep. N. W. P., 1874, p. 10). Held,
on special appeal, that that decision did not
apply, and that the defendants were entitled to
appeal. Rah Gholam u. Shbo Taiial. Turner
and Spankie, JJ...I. L. Bap. 1 AIL 206,
1876.
16. Act XXVII. of i860— Security.']
No appeal lies from an order of a District Court
requiring security From a person to whom it
has granted a certificate to collect debts under
Act XXVII. of i860.
Soonea v. Ram Suha (H. C. Rep. N. W. P.,
1870, p. I46,) and lUonmohincc Dosser v. Kkettct
Gopaul Dcy (I. L. Rep. 1 Cat. 127) followed.
Semite, the District Judge can review his
order relating to the amount of the security.
In the matter of the Petition of RukmIN.
Turner and Spankie, JJ...L L. Hep. 1 All
287, 1876.
See MONMOHINEE DASSEE v. KhaTTKU
Gopaul Dey X. Id. Bep. 1,
CaL 127, ante 4.
17.— -Act VIII. 0/1859, * '54— Salt in
Execution— Defaulting Purchaser— Letters Pa-
lcntt,Alltthabad),Cl. 10.] An appeal lies from an
Order passed on an application under § 254 of
Act VIII. of 1859, to make a defaulting pur
chaser liable for the loss occasioned by the re
Held (Spantie, J., dissenting) that ordinaril.
where an appeal is given it must be taken to be .
general appeal, and express language should be
used to restrict it. For this reason, and because
the construction of a doubtful term which appears
to accord best with the context ought to be
accepted, it must be held that the appeal given
to the Full Court by CI. 10 of the Letters Patent
of the Allahabad High Court from the judgment
of two or more Judges of the Court or of a
Division Court, "wherever" such Judges are
equally divided in opinion, See., is not confined
to the point on which the judges of the Division
Bench differ.
Ram Dial v. Ram Das...I.
Hep. 1 AIL 181, 1876, V. B.
18. Application for Leave to sue as 0
Pauper— Act X. of 1877, §§ 2, $40, 588.] No ap-
peal lies under Act X. of 1877 from an order
APPBAL-CTVIL-
ntd.
made under that Act rejecting an application
for permission to sue as a pauper. Snch an
order, though embodying the result of a judicial
proceeding, is not a decree within the meaning
of §| 2 and 540 of that Act. The judicial pro-
:eedings referred to in § 2 are proceedings of
1 different character from those which result in
the order specified in f 588, and in some degree
resemble and partake of the character of a suit,
Collis v. Manohab Das... I. L. Kep. 1 AIL
746, 1878, F. B.
19. From Order rejecting Application to
;ct aside Ex-parte Decree — Act X. of 1877, |§ 2,
103, 108, 588.] Under Act X. of 1877, an ex-
parte decree is appealable like any other decree,
but no appeal lies under that Act from an order
rejecting an application to set aside an er.partt
decree against a defendant. Guladh Singh v.
Lachman Das... I. L. Rep. 1 AIL 748, 1878,
F.B
See supra. 9.
80. Insufficiently Stamped Document.']
Where a document is admitted by the Lower
Court as not requiring a stamp, its admissibility
cannot be queslioned in appeal. Enayefoolta v.
Shaikh Mcajan (16W. Rep. 6) followed. Knoos
Lall v. Jungle Stngh. McDonell and Brough-
r<m,JJ...LL.Bep. 3 CaL 787} 9 Oft), B*p.
439, 1878.
Sec Error not affecting the Merits.
1.
A«al-un-Nissa p. Thj Bin... I,
I» Bop. 1 All. 726.
81. Suit under Act VIII. of 1 859— Decree
given after Repeal of that Act— Appeal.] Where
a suit has been instituted under Act VIII. of
1859, but decided after Act X. of 1877 had come
into force, and an appeal is presented against
such decision, f 3 of Act X. of 1877 distinctly
indicates that such an appeal is to be governed
by the law of procedure in force at the date of
the presentation of the appeal. Whore, there-
fore, an appeal in a such case has been dis-
missed under § 556 of Act X. of 1877, the
appellant may apply for its re-admission under
{ 558 ; and if such re-admission is refused, he
is entitled to an appeal under § 588 (o).
Burkut Hoosein v. Majidoonissa (3 C. L. Rep.
208} distinguished. Elahi Buksh v. Maha-
chow. Ainslie and Broughton, JJ..X L. Bop.
4 CaL 835 ; 3 CaL 593, 1879.
D.gmzed by G00gle
DIGEST OF CASES.
APPEAL— OIVII.-<*»«tf.
33. Appeal from Order setting aside Sale
in Execution of Decree— Act X. of 1877, %% 32,
311, 31a. 5«8 («), 647.] Where upon an ap-
plication by the judgment-debtor, under f 311
of Act X. of i877,!to set aside a sale in execu-
tion of a decree against him, the auction pur-
chaser is made a party to the proceedings under
if 32 and 647 of that Act, and appears and
shows cause why the sale should n
aside, he can appeal against the order setting
aside the sale. Kanthi Ram v. Bankey Lai (1. L.
R.2AII. 396) followed. Gopal Singh u. Dular
Kuak, Sponbieznd Straight, JJ I. L. Rep.
3 All. 3(WJ, 1H79.
28. Appeal from Order returning Plaint
~Act Xof 1877, St 57 (0, 538 (e)-Act XII. of
1879, § 2.] Though § 57 of Act X. of 1877
nirilem jih^s a return of a plaint, should
be patcnt™when it is first presented, there is
nothing in that section which forbids the
0! a plaint at a later stage.
Where, therefore, after the issues were framed,
the Court decided that it had no jurisdiction
and " dismissed" the plaintiff's suit, at
time ordering the plaint to be returned to the
plaintiffs : —
Held, that though the Court had made us
the word " dismiss," it was clear, from thedi
lion that the plaint was to be given back, that
the Court stopped, and intended to stop, from
further hearing of the suit, .when it discovered
that it had no jurisdiction. The Court, there-
fore, when it returned the plaint to be presented
in the proper Court, was acting under £ 57, Ci-
te), Act X of 1S77, and the order returning the
plaint under that section was appealable under
| 538 of that Act, and did not come within the
definition of decree in Act XII. of 1879, § 3,
and therefore was not appealable from as a de-
cree. Abdul Sam ad v. Rajindro Kishor
Singh. Spankie ami Straight, JJ...I. L. Rep.
2 All. 307, 1879.
24. Appeal from Order in Execution of a
Decree — Assignment of Decree— Cross-Decrees —
AclX. 0/1877, §§ a> s3a, 233i 246, 54o] An order
made in the execution of a decree disallowing
the objections taken by the judgment -debtor to
execution of the decree, being the final order
id a judicial proceeding, and therefore a decree
within the meaning of § 2 of Act X. of 1877 is
appealable under that Act. Thakur Prasad v.
Ahsan Ali (I. L. Rep. 1 AU, 068) followed.
APPEAL— CIVIL-w««.
Murli Dhar v. Parshotam Das. Pearson and
Turner,]} I. L. Hep. 2 AH. 91, 1878.
S. C. under Execution of Decree. 8.
I. Second Appeal— Objection as to Insol-
vency of Plaintiff taken for First Time on.}
Where the defendants for the first time in second
appeal objected to the plaintiff's right to sue on
the ground of his having taken the benefit of the
Insolvent Debtors' Act, the objection was enter,
lained by the High Court on the plaintiff's ad-
of his insolvency. Sadodin o. Spier.
MehOt and Kemball, JJ...L L. Rep. 3 Bom.
437, 1879.
S. C under Insolvency. 1.
26. Appeal from Munsiff — Act VIII. of
S59- ActX. of 1877, § 5S4 - Return of Plaint.]
\ suit to redeem an usufructuary mortgage of
certain lands, valued at Rs. 150, the principal
money secured by the mortgagee, was instituted
in the Munsiff's Court. The defendants were
summoned to appear on the day fixed for the
hearing of the suit, and to produce their evidence.
The defendants accordingly appeared, denied
the mortgage, and set up a proprietary title to
the land. The Munsiff subsequently returned
the plaint to the plaintiff for presentation to the
proper Cojirt, holding that, looking to the nature
of the defence, the suit must be regarded as one
to recover possession of land, the value of which
being more than Rs 1,000, he bad no jurisdic-
tion to entertain the suit, which ought to have
been instituted in the Court of the Subordinate
Judge. On appeal by the plaintiff, the Subor-
dinate Judge confirmed the decision. On a
second appeal by the plaintiff to the High
Court:—
Held, that the Munsiff s order for the return of
the plaint being passed after the suit had been
admitted on the file, and the parties had been
called on to produce their evidence, his order
finally disposed of the suit, and was the legiti-
mate subject of a regular appeal under Act VIII.
of 1850, and the present appeal from the appel-
late decree of the lower Court was admissible
under J 584 of Act X. of 1877. Kalian Das v.
NawAL SinQH. Pearson and Spankie,]]... I. L.
Rep. 1 AU. 630, 1878.
S.C. under Jurisdiction, 5.
87. Execution of Decree — Appeal from
Order— Act /- o/lS68, ( 6— Act VIII. 0/1859-
Ait X. of ldJ7— Repeal— Pending Proceedings.]
Digitized byGOO^Ie
DIGEST OF CASES
APPEAL -CXVlL-tontd.
The chapter of the New Civil Procedure. Code
(Act X. of 1877) which deals with execution of
decrees is prospective, and does not affect pro.
ceedmgs already commenced. While, then,
"proceedings in execution of decrees initiated
after Act X. of 1877 came into operation must
be governed by the provisions of that Code, the
effect of , 6 of Act I. of 1868 is to leave proceed-
ings initialed before Act X. of 1S77 came intc
force to be dealt with under the provisions of
the repealed Code (Act VIII. of 1839). Proceed-
ings in execution of a decree, therefore, instituted
under Act VIII. of 1859, are to be governed by
the provisions of that Code, and an appeal
lie from all orders passed in such proceedings
which under the provisions of that Act .
appealable, the saving of "proceedings com
ced" from the operation of a repealing Act by
§ 6 of Act I. of 1868, extending also to appeals
from such proceedings,
Where, therefor^ the holder of a decree foi
money applied for execution thereof by the at.
tachment of certain moneys deposited in Court
to the credit of the judgment-debtor, and the
application was refused, on the 4th of June 1877,
by the Court of first instance, on the ground that
the decree directed the sale of certain immove.
able property for the satisfaction of the sum
decreed, and awarded no other relief, and such
order was affirmed on appeal on the 4th of August
1877, and the decree-holder applied to the High
Court on the 13th of November 1877, after Act
X. of 1877 came into operation, for the admi
of a second appeal from the order of the lower
Appellate Court, on the ground that the decree
had been misunderstood :—
Held, that the appeal was admissible under-
the repealed Act VIII. of 1859, under the provi-
sions of ( 6 of Act I. of 1868.
Held also, that though the provisions of f 647
of Act X. of 1877 are applicable to proceedings
in execution of a decree, yet the last paragraph
of ( 3 of that Act is not to be extended to pro-
Held also, that the provisions of ( 588 of Act
X. of 1S77 do not embrace all the direct
on the determination of proceedings which
termed "orders" in the Code, and that sec
in declaring that an appeal should lie from the
orders mentioned therein, and from no othei
such orders, must be understood to mean orders
of a similar nature to those specified, and 1
APPEAL-CIVIL— contd.
orders" that might be passed under the Code.
While, then, the provisions of CI. (j) of ( 5SS
allow an appeal from the orders made in the
irse of execution proceedings where an appeal
allowed from similar orders passed in the
course of a suit, the provisions of f 647 declare
that the procedure prescribed by the Act shall
be followed (so far as applicable) in all proceed-
ings other than suits and appeals; therefore, an
appeal will lie in such proceedings from the
order which is analogous to a decree in a suit-
Applying the definition of "decree" to proceed.
in execution of a decree, the formal order of
the Court in which the result of the proceedings
embodied is a decree within the meaning of
at term in the Code. It is therefore appeal.
able in all cases in which a decree is appealable,
and the procedure in such cases must be govern-
ed by the provisions of the chapters elating to
appeals from decrees. The order in question,
therefore, was also appealable, under Act X. of
1877. Thakur Prasad o. Ahsan Au -...I. L.
Hep. 1 AIL 638, 1879, F. B.
And tee Appeal— Civil. S. 9. 28.
38. Act X. of 1877, { 584— Second Appeal
from Judgment Ex-parte in Appeal.] A defend-
ant who obtains a judgment in his favour in the
Court of first instance, and who on appeal by
the plaintiff does not appear at the bearing of
the appeal or present a petition for re-hearing,
may, under Act X, of 1877, present a second
appeal against the decree of the lower Appellate
Per M- Ayyar, J. — It may be a question whe.
ther an appeal does not lie even from a judgment
ex-parte, the restriction contained in f 1 19 of Act
VIII. of 1859 being omitted in the corresponding
f 108 of Act X. of 18J7. Ex p. Madalatha.
Kenan and M. Ayyar, JJ...I. I,. Rep. 2 Wad.
75, 1878.
fl9, Second Appeal from Order in execu-
tion of Decree-Act X. of 1877. §§ <*.3. *44. S»*
588— Act I. of 1868, § 6.] The Court executing
a decree for the removal of certain buildings made
an order in the execution of such decree direct-
ing that a portion of a certain building should be
removed, as being included in the decree.
On appeal by the judgment-debtor, the lower
Appellate Court, on Mud September 1877,
reversed such order.
D,gltlzed by G00gle
DIGEST OF CASES.
APPEAL— CIVIL— contd.
Held, per Pearson, J., on appeal made on 30th
May 1878 by the decree-holder from the order
of the lower Appellate Court, that that order
being a decree within the scope (if the defini
in 5 2, Act X. of 1877, was appealable under §
584 of that Code, as well as under Act VIII. of
1859, notwithstanding its repeal, in reference 1
§ 6 of Act I. of 1868. Thakur Prasad v. Ahsi
Ali (I. L. Rep. 1 All. 66S, F. B.) followed.
Per Stuart, C J., (dissenting from Tkait
Prasad v. Askan Alt, ubi supra), that a second
appeal did not lie. Uda Beg ah v. Imam-ud-
din. Stuart, C J., and Pearson, J.... I. L. Bep.
a All. 74, 1878.
See also Murli Dhak o. Purshotam
Das Ibid. 61.
80. Special Appeal -Point net raised in
Lamer Courts— Want of Possession in Plaintiff'
Vendor.'] In a suit, between Hindus, to recove:
possession of certain lands sold to the plaintiffs,
the defendant was not allowed to raise for the
Erst time in special appeal the point that the
plaintiffs' vendor, was not, at the time of sale to
the plaintiffs, in possession of the land sold.
RamabaIv.Affa. Westropp.C.]., v\A Kemball,
J IS Bom. H. C. Bep. 13, 1874.
MaHADAII V- VVANKAJt I. L.
Bep. 1 Bom. 197.
81. Limitation — Remand — Special Ap-
peal from Decision on Remand — Points not raised
below.'] The defence of limitation cannot !
raised for the first time after there has been
remand, and on special appeal from thedecisic
of the Court which heard the case on remand.
Per Westropp, C J. %—" Speaking for myself
alone, I reserve the right to consider whether,
even upon a special appeal where there has been
bo remand, I should follow Salu v. Rajsangji
(2 Bom. H. C Rep. 162) and Davlata v. Beru
(4 Bom. H C. Rep. 197)." Moru Patlaji e.
Copal Satu. Westropp, C. J., West and Pinhey,
JJ L L. Rop. S Bom. ISO, 1877.
89. Suit CogniMable by Small Cause
Court— Question of Title— Act XXIIL of 1861, (
37.] No special appeal lies to the High Court in a
suit cognisable by the Small Cause Court, though
a question of title to immoveable property has
been incidentally raised and tried in the Court
below. Mohesh Matto v. Sheik Pika...I. L.
Bep. 2 OaL 470 j 1 OaL Bep. 88, 1877, F.B.
APPEAL— CIVIL- -contd.
S3. — - Jurisdiction— Rent— Suit under
Rs. 100— Beng. Act VIII. of 1869, §§ 33, 34, and
102— Act VIII- of 1879, § 372.] Held {Jackson,
]., dissenting), that no special appeal lies to the
High Court from the decision of a District
Judge in a suit for rent under Rs. 100, when no
question of right to enhance or vary the rent of
a ryot or tenant, nor any question relating to a
title to land or to some interest in land as be.
tween parties having conflicting claims thereto,
has been determined by the judgment. Lun-
GES5UR KoOER V. SoOKHA OjHA...L L. Rop.
3 CaL 191 ; 1 Cal. Bep. 30, 1877, F. B.
34. Objection as to Want of Possession
of Plaintiff's Vendor at Time of Sale not taken in
Court belon.y In a suit to recover possession of
certain lands sold to the plaintiff, the defendant
was not allowed to raise for the first time in
special appeal the point that the plaintiff's ven.
dor, a Hindu, was not, at the time of ssle to the
plaintiff, in possession of the land sold. Maha-
DAJI v. VvaNkaJi GoviNd. Westropp, C.J., and
West, J I. L. Bep. 1 Bom. 197, 1376.
S. C. under Registration. 13.
85, Appeal against refusal to Confirm an
Anard— Act VIII.qftZtoMltS-Zri— Privileged
Communications— Evidence Act I. of 1872, ( I.]
In a suit referred to arbitration under Act VIII.
of 1859, the arbitrator informer! the parties that
he had determined to award the plaintiff Rs.
1,500 with costs ; but a few days afterwards, in
consequence of a communication made by the
defendant, the arbitrator held another meeting,
which the defendant for the first time contend'
ed, that as, before the matter was referred to
arbitration, he had offered the plaintiff Rs. 1,500,
he ought not to be made to pay the costs of the
arbitration, and in support of his contention
produced a letter written by the plaintiff's at-
torney lo his attorneys, which was stated to be
without prejudice," and thereupon the arbi-
trator decided not to give the plaintiff costs.
An application to confirm the award was refused
by the Judge, of the Court of first instance, on
the ground that the defendant had improperly
communicated with the arbitrator behind the
back of the other party, and had used the letter
without prejudice " to induce the arbi-
trator to alter his opinion.
Held, on appeal by the defendant, that the
refusal of the Judge to give judgment on the
award, was in point of fact a judgment upon the
D,gltlzed by G00gle
DIGEST OF CASES.
APPEAL-CIV1X-m«W.
whole subject-matter of the suit, and that
appeal would lie from such refusal.
Held also, that though the arbitrator was
wrong in receiving and acting on and using
evidence a document which ought not to have
been received, yet that this was not a sufficient
ground to justify the Judge in refusing to con-
firm the award, Howard o. Wilson. Garth,
C.J., and Markby, ] I. L. Hep. 4 Cal. 231,
1878 ; 3 CaL Rep. 488.
36. ■ Judgment— Decree.'] The plaintiff
sued for possession of certain land, on the ground
that he was the owner thereof in virtue of a pur-
chase from N. The defendants claimed the
land as owners, on the ground that !
eluded in a garden which they had previously
purchased at a sale in execution of a decree
against N., and they also urged that in a former
suit between themselves and N. the land had
been found to be part of that garden, and that
the matter was, therefore, res judicata as be-
tween themselves and the plaintiff claiming
through A'. The Court of first instance held that
the lands in question did not form part of the
garden purchased at the execution sale, but
that the defendants were in possession under a
lease from N. which had not expired, and, there-
fore, that tbey could not be ejected. He also
' found that the matter was not res judicata; and
by his decree " ordered that the plaintiffs claim
as it stands at present be dismissed" : —
Held [Straight,]., dissenting), that the defend-
ants were entitled, under § 540 of Act X. of
1S77, to appeal from such decree.
Per Stuart, C. J. — It would be too narrow a
view of the Code (Act X. of 1877) to hold that
the decree, inasmuch as it was a decree, which
so far as it decreed anything, did so in favour
of the defendants, was not a decree by which the
defendants could be said to be aggrieved. Not
only the judgment, but the pleadings also, may
be looked at to see what the decree really
means where the decree is ambiguous or imper-
fect as to any essential particular. The present
decree, though apparently favourable to the
defendants, was imperfect and not self-explana.
tory; and when read by the light of the record
of the pleadings and judgment was really un-
favourable to them.
Per Spaniie, J.— A decree which is materially
defective, cither from omission or otherwise.
APPEAIr-CmX-ronM.
and which cannot be amended, is appealable on
that ground alone ; and the judgment may be
referred to in order to determine the real mean-
ing and effect of the decree. Lachman Sihch
b. H0HAN...L L. Rep. S AIL 487,1879, F.R
8'. — Order refusing to rehear Appeal
decided Ei-parte— Act X. of 1877, ( $Go— Second
Appeal,] Section 560 of the Civil Procedure
Code, Act X. of 1877, is not mandatory, but
permissive and discretionary. A person against
whom an appeal has been decided es-parte, and
who has applied to the Appellate Court, under
that seciion, for a rehearing of the appeal and
been refused, is not bound to appeal against the
order of refusal, but may present a second appeal
from the judgment in appeal. Rahjas v. Baij
Nai-h, Stuart, CJ. and Spankie, J... I. L. Bop.
3 AIL 667, 1879.
38. Execution of Decree— Application
to set aside Sale of Immoveable Property— Act X.
0/1377, ft 3". 312.313, 11^588, m.] Though
an auction purchaser may not apply under
f 311 of the Civil Procedure Code, Act X. of 1877,
) have a sale set aside, he yet may be a party to
ie proceedings after an application has been
,ade under that section, and then if an order is
made against him, he can appeal from such
order under j 588 (m) of the Act. Kanthi
Ram b. Bankey Lal. Span/tie and Oldfield, ]].
I. L. Rep. 3 AIL 396, 1879.
APPEAL— CRIMINAL— Abatement of.
See Abatement of Appeal— Crimi-
nal.
- Against an Acquittal.
See Appeal— CrimioaL 1. 4. 6. 6. 7.
— Prom an Acquittal
See High Court Criminal Proce-
dure, Act X. of 1878, f 147.
9.
Corporation of Calcutta «
DhEECUHKAM NAPITT...X, L.
Rep. 3 Cal. 390.
From Acquittal — Arrest by Magistrate
pending.
Sec Appeal— Criminal. 6,
D,gltlzed by G00gle
DIGEST OF CASES.
APPEAL-CRIMINAL— o™«.
■ From Acquittal — Arrest pending — High
Court can order-
Sec Appeal— Criminal. 6. 7.
From Acquittal — Limitation for.
See Appeal — Criminal. 5.
Aggregate Sentence — Measures Right
of.
See Appeal— Criminal. 3.
Arrest by Magistrate pending — from Ac-
quittal— Power of High Court.
See Appeal— Criminal, 0.
See Appeal— Criminal. 6. 7.
- From Judicial Commissioner to Special
Court at Rangoon from Sentence of latter
in Case transferred by him from Sessions
See Jurisdiction. 17.
Empress v. Tsit Oob... J. L. Rep.
4 Cal. 667.
- By Persons Convicted under § 36, Act X.
of 1872.
See Criminal Procedure Code, Act
X of 1873, §86.
Empress j>. Nadu a. ..I. X. Rep.
3 All. 63.
- Against Sanction to Prosecute or Refusal
to grant Sanction. ■
See Sanction to Prosecute. 1.
Babkat-ullah-Khan t>. Rbnhie.
I. L. Rep. 1 All. 17.
See Presidency Magistrates' Act
IV. of 1877, §41.
Janokey Nath Rov...I. L. Rep,
aCal.466.
- Substantive Sentence — Sentence of Im-
prisonment in Default of Payment of
Pine.
See Presidency Magistrates' Act
IV. ofl877, § 167.
In the matter of Jotharam Davav.
1. L Rep. 3 Mad. 80.
- Trial by Jury of Offence triable with
Assessors.
See Trial by Jury.
Empress v. Mohinj Chunoer Rai.
L L. Rep. 3 Cal. 760.
APPEAX— ORXXXVAX— amftZ.
1. Practice— Presentation.] A petition
of appeal in a criminal case may be presented to
the Appellate Court by any person authorized
by the appellant to present it. In the matter of
Subba.Aitala. Innes, C.J, (Offg.) and Busteed,
J X. L. Rep. 1 Mad. 304, 1877.
3. Against an Acquittal by a Jury —
Criminal Procedure Code, Act X. of 1872, § 363
—Dissent of Judge."] The Government has a
right to appeal against an acquittal by a jury
where the Judge differs from the jury, but does
not consider it necessary for the ends of justice
to refer the case to the High Court. Impx. «.
HariGanu- Westropp, C.J., and Sfdvill, J...
X L. Rep. 3 Bom. 036, n.
8. Act X. of 187a, §§ 314 & 18— Com-
bined Sentences for several Offences— Appeal.]
The combined sentence passed under § 314 of
Act X. of 1873, in a case of simultaneous con-
victions for several offences, must be considered
a single sentence for the purposes of confirma-
tion or appeal. Rro. u. Rama Biiivgowda.
MelmlUnd West, JJ...X L. Rep. 1 Bom. 333,
1876.
4. Act X. of 1871, § 37a.— Appeal— Offi-
cer appointed to prefer Appeal — Acquittal.'] On
the trial by a jury of a person' charged with
murder, the jury found the accused not guilty of
murder, but convicted him of culpable homicide
not amounting to murder. The Sessions Judge,
though he disagreed with the verdict, declined
submit the case to the High Court under §
263 of Act X. of 1872. The Local Government
then directed the Legal Remembrancer to appeal
under § 272 of Act X- of 1872, and in pursuance
thereof an appeal was preferred by the Junior
Government Pleader -.—Held, that the appeal
was duly made. Held also, that a judgment
passed by a Sessions Court, following the verdict
of a jury accquitting the prisoner, is a judgment
of acquittal within the meaning of § 272 of Act X.
of 1872, and that there being an acquittal on
the charge of murder, the appeal lay. Em-
press v. Judoonath GaNGOOLV. Jackson and
McDonell, JJ....I. X. Rep. 3 Cal. 378, 1877.
8. Act X. of 1872, % 273.— Appeal from
Acquittal— Limitation.'] An appeal by the Local
Government under § 272 of Act X. of 1872, is
within time if presented within six months from
the date of acquittal. The sixty days' rule does
not apply. Empress o. Jvadolla...I. X. Rep.
a Cal. 486, 1877, P. B.
Diarized by Google
DIGEST OF CASES.
( "2 )
APPEAL-CRIMINAL-^rd.
6.— Atl X.tftHj2,% 273— Arrest pending
Appeal.'] In an appeal under § aja of Act X. of
1873, the High Court has power to order the
accused to be arrested pending the appeal.
Reg. v. Gobik Tbwari . Macpkmm and Mor-
ris, ]} I. L. Bop. 1 Oal. 381, 1876.
7. Act X. of 187*, fa?*-— Wherean ap.
peal has been preferred under f 171 of Act X.
of 1873, against an acquittal, the High Court
may order the accused to be arrested pending
the appeal. Reg. t. Gobittd Temari (I. L. Rep.
■ CaL 381) followed. Empress p. Manyu..X
L. Hep. a Ail. 340, 1879,
F.B.
APPEAL TO FULL COURT FROM DI-
VISION BENCH WHEN JUDGES
DIFFER— Not confined to Points of
Difference.
See Appeal— Civil. 17.
Rah Dial e. Ram Das I. L.
Rep. 1 All. 181.
APPEAL HEARD EX PARTE BEFORE
THE PRIVY COUNCIL— Re-hearing
of.
See Practice— Privy Council. 4.
MakarajakPbrtabNarainSin
v. Maharanee Sldhao Koer.
L. Rep. 6. 1. A. 171.
APPEAL FROM ORDER-Under Act VIII.
o> 1859. i 254— Defaulting Purchaser.
See Appeal— CiviL 17.
RahDialv. RAnDAS...LL.Rep.
1 All. 181.
— Admitting Review.
See Review. 9.
Abdul Rahim v. Rack* Rai...
I. L. Rep. 1 All. 868.
— — Awarding Commission to Administrator-
General.
See Administrator Generals' Act .
IX of 1874, i 37.
SoMASUNOABAM CBRTT1 V. AdMIH-
1STRAT0R-GBNERAL...L L. Rep.
1 Mad. 148.
— — For Delivery of Stolen Property.
Sec Government Currency Note.
Empress v. jogessur Mochi...I. L.
Rep. 8 Cal. 379.
APPEAL FROM ORDER— centd.
— Directing an Award to be filed.
See Appeal-Civil. 13. 13a.
HustAiHI Bibi v. MoKSiN Khan...
I. L. Rep. 1 AIL 166.
Ramadhin v. Mahesh L L.
Rep. S AIL 471.
See Arbitration. 4.
Boonjad Mathoor *. Nathoo
Ehahoo X. L. Rep. 8
CaL 876.
— In Execution of Decree.
See Appeal— CiviL 914. 27. 99. 88.
See Civil Procedure Code, Act X. of
1877, i 044.
Dalfatbkai v. Amassing. ..L L.
Rep- 2 Bom. BBS.
— In Execution of Decrees under Act XX. of
1S66 on Specially Registered Bond.
See Appeal— CiviL 7. 11. 19.
BhyrubChunderv. Golap Coo.
MARr...LL.Rep.8CaLS17.
Ramanand ». Bank of Bengal..,
L L. Rep. 1 All. 377.
WlLAVAT-UH-NlSSA V. Wa]IB.UH-
Nissa .....Ibid. BBS.
— In Execution of Decree Passed before Act
X. of 1877 came into operation.
See Appeal-Civil. 6. 0. 37. 99.
Runjit Singh v. Meherban
Kobr.L L. Rep. 8 CaL
663.
Chihto Joam v. Kishnaji Nab-
raven... L L. Rep. 8 Bom.
914.
Thakub Prasad v. Ahsan Au...
L L. Sep. 1 AIL 668.
Uda Begum r. Imam-ud.din...
I. L. Rep. 3 AIL 74.
— Fixing Amount of Court Fees on Plaint.
See Court Fees. 4. 9. 6.
Chuniab. Rahdial.,.1. L. Rep.
1 AIL 360.
Narrayan Naik v. Collector of
Thana.I. L. Rep. 3 Bom.
145.
Manohar Games h p. Bawa Ram-
charandas Ibid. 319.
D.gmzed by GoOgle
DIGEST OF CASES.
( 134 )
APPEAL FKOM OEBER- ™«.
Granting Certificate that Case is Fit Case
for Appeal to Privy Council — none.
See Lot tors Patent (Calcutta),
I860, CI. 19. 1.
MOWLA BUKSH O. KlSHHN PbRTAB
SAHi...I.L.Rop.lCaL102,
— -Granting Leave to Prosecute under f 41 ,
Act IV. ot 1877.
See Presidency Magistrate*' Act
IV. of 1877, * 41.
Janoksy Nath Roy...I. L. Bep.
3 CaL 466.
Interlocutory Order.
See Appeal to the Privy Council
8.8.
Palak Dhari Rai v. Radha Pra.
sad Singh. ..I. L. Hep. 3
All. 66.
Tetlev «. Jai Shankar.X L.
Bep. 1 All. 726.
— Placing a Party on the Record who is not
Legal Representee of a Deceased Party.
See Stat. 24 * 25 Vict, 0. 104, f
16. 7.
Poqose v. Catchick ..I. L. Bep,
3 Cal. 708.
In the matter of Pogose.-I. L.
Biip. 3 CaL 710, n.
Refusing Leave to sue in forma Pauperis.
See Appeal— Civil. 18.
Collcs 11. Manohar Das... I. If.
Bep.lAll.74S.
Refusing to Postpone Sale in Execution
of Decree— Stay of Execution pending.
See Stay of Execution.
Harsh ah KAR Pakshad I. L.
Bep. 1 AIL 178.
Refusing to Re.admit Appeal Dismissed
under § 556, Act X. of 1877.
See Appeal— CiviL SI. .
Elahb Buksh e. Marachow.I.
L. Bep. 4 CaL 826.
— — Refusing to Set Aside Judgment Ex-parte.
See Appeal -Civil. 3. 19.
Lakmidaso. Ebrahih ...I. If. Bep.
2 Bom. 644.
Gulab Singh v. Lachmah Das ..
L L. Bep. 1 AIL 748.
11
APPEAL FROM OBDEB— contd.
Refusing to Set Aside Ex-parte Decree not
an Appeal within Act IX. of 1871, Sched.
II., Art. 167.
See Limitation. 87.
Sheo Prasad e. AnkudhSingh...
I. L. Bep. 2 AIL 378.
Rejecting Appeal against Refusal to
See Appeal— CiviL 10.
Svud Mahomet d. Hadzi Abdul.
lah...l L. Bep. 3 CaL
737.
Rejecting Application to be declared an
Insolvent under Civil Procedure Code.
See Civil Procedure Code, Act X.
of 1877, §344.
Muutaz Hossein v. Btj Mohun
Thakoor...L L. Bep. 4
Cal. 888.
Of Remand.
See Appeal to toe Privy OounciL 6.
Tbtley b. Jai Shankar...L L.
Bep. 1 All. 736.
Requiring Security from Person to whom
Certificate to collect Debts granted.
See Appeal-CiviL 16.
Rukuin.,.1. L. Bep. 1 All. 387.
Returning Plaint for Presentation in Pro-
per Court, made after Admission of Suit.
See Appeal— CiviL 36.
Kalian Das v. Nawal Singh. ..L
L. Bep. 1 ALL 630.
Returning Plaint after Framing Issues.
See Appeal— CiviL 23.
Abdul Sahad v. Rajihdro Ki-
shor Singh. ..L L. Rep. 3
All. 367.
Setting aside Sale in Execution of Decree.
See Appeal— CiviL 33.
GOPAL Singh v. DulaR Kuar...
I. L. Bep. 3 All. 363.
APPEAL TO PBIVT COUNCIL— No
Appeal from Order granting.
See LeUerePatent (Calcutta), I860,
CL 16. 1.
Mowla Buksh h. Kishbn Pertab
Sahi...L L. Bep. 1 CaL 103.
D.gmzed by GoOgle
{ 185 ) DIGEST OF CASES. ( 136 )
APPEAL TO FEITT COUNCIL- amid. APPEAL TO PBIVY COUNCIL— amid.
Dismissal of— for Default in Deposit of Se-
curity and Costs of Transcribing Record.
See infra. 4.
From Interlocutory Order-
.fc.? infra. 3. 6.
Limitation for Petition for Leave to — Exclu-
sion of Time required to obtain Copy of
Judgment.
See Limitation. 80,
Jawahir Lal b. Narain Das...
I. L. Sep. 1 AIL 044.
Re-hearing of— -Grounds for.
See Practice — Privy Council. 4,
Trilokinath.,.1. L. Rep, 4 Cal.
184.
Special Leave.
See Practice—Privy Council. S. 6.
7. 8. 9.
Substantial Question of Law.
SreActVLofl874, , 5.1.
Feda H ossein. ..J. L. Hep. 1 Cal.
431.
Substantial Question of Law Arising on the
Evidence.
See Act VL Of 1874, ( 5. 3.
Moran p. Mrrro Bibee L L.
Rep. 2 Cal. 388.
1. Stamp Act XXVI. of 1S67, j 11 —
Valuation of Suit — Valueof Properly.'] A party
who, in observance of the rule of valuation
prescribed by the stamp law of the country in
which he sues, has paid stamp duty on a sum lower
than the appealable amount, is not thereby pre-
cluded from obtaining leave from the Courts of
that country toappealtoHer Majesty in Council,
if he can show that the value of the property in
dispute does reach the appealable amount.
Act XXVI. of 1867 does not alter the law in
this respect. Baboo Lekraj Roy 9. Kankya
Singh L. Rep. 1 1. A- 317, 1874.
9. Act II. 0/1863, * l— Court of Highest
Civil Jurisdiction— Act XXXII. of 1871.] The
Commissioner of Seetapore (in Oudh) having
admitted an appeal to the Privy Council, from
his decree dated the 10th June 1873, affirming
the decree of the Settlement Officer of that
district, dated the aotb of December 1S71, a
preliminary objection was taken, when the ap-
peal was called on for hearing, that the Com-
missioner had no legal authority to admit the
appeal, his Court being subordinate to that of
the Judicial Commissioner, and therefore not
" the Court of highest jurisdiction in the pro-
Held, that although under Act XXXII. of
1871, f 4 (the Oudh Civil Courts' Act), the de-
cision of the Commissioner affirming that of
the Settlement Officer was final, the Court of
the Commissioner was not the Court of highest
civil jurisdiction in the province within the
meaning of Act II. of 1863. Those words have
reference to the general jurisdiction of the
Courts, and not to the finality of their decisions in
particular cases. Thakoor Hardeo Bux u,
Tkakoor Jawahir Singh... L. Sep. 4 LA.
178, 1877; L L. Kep. 8 Cal. 522.
S. C. under Act L of 1869. 6.
8. Interlocutory Order — Execution of
Decree—Act X. of 1877, § $9*-} The District
e of Ghazipur recalled to his own file the
proceedings in the execution of a decree whicb
pending in the Court of the Subordinate
Judge of Shahabad, and disallowed an applica-
tor the execution of the decree whicb had
been preferred to that Judge. The High Court
ippeal from the order of the District Judge
annulled his order as void for want of jurisdic-
ion, and remitted the case in order that the
ipplication might be disposed of on its merits,
lirecting that the record of the case should be
eturned to the Subordinate Judge of Sha-
habad. On an application for leave to appeal
to Her Majesty in Council from the order of
the High Court -,—Held, that such order was
[i the nature of an interlocutory order, and
lot one from which a certificate for appeal
.0 the Privy Council could or ought to be
jiven. PaLaK Dahki Rai v. Radha Parsad
Singh. Pearson and Turner,)}... X, L. Kep.
9 All. 05, 1878.
1. Dismissal of Appeal for Default in
Deposit of Security, and Costs of transcribing Re.
cord.~] On an application to stay proceedings
an appeal to the Privy Council, which had
n presented on the znd July 1874, from a
ision of the High Court on its Original
Side, it appeared that no deposit had been
ide by the appellant to defray the costs of
nscribing, &c> as provided by § 11 of Act
VI. of 1874 ; that no steps had been taken to
prosecute the appeal j and that no security had
Digitized byGOOC^Ie
DIGEST OF CASES.
APPEAL TO PEIVT COUNCIL— «mW.
been deposited (or the costs of the respondent
since the petition of appeal was presented, The
Court granted a rule calling on the appellant
show cause why the proceedings on appeal
should not be stayed, and on his not appearing
(o show cause, ordered that the appeal should
be struck off the file. Thakoor Kapilnath
Singh v. Thb Government. Pfiear, J...L L.
Rep. 1 Cal 142, 1876.
0. Interlocutory Order— Act VI. of 1874
~Act X. of 1877— Letters Patent (Allahabad), CI-
31.] Held, that the High Court (at Allahabad)
has no power under Act X. of 1877, or CI. 31 of
the Letters Patent (Allahabad) to gran
appeal to the Privy Council from an order of
the Court remanding a suit for re-trial, such an
order not being a decree, but an interlocutory
CI. 31 of the Letters Patent (Allahabad) was
repealed by implication by Act X. of 1877 and
Act VI. of 1874 which preceded it. Tetlbyv.Jai
SiiANKAK. Turner, C. J. (Offg.), and Pearson,
J. .- I. L. Rep. 1 AIL 726, 1878.
APPEALABLE CASE — RE COBB IN
Substance of Evidence.
Set Summary TriaL
Empress v. Karak Singh ... I. L.
Rep. 1 All 880.
APPEALABLE VALUE — Valuation of
Property (or purposes of Stamp Law —
Value of Property.
See Appeal to the Privy Council. 1.
Baboo Lekhraj Roy n. Kanhya
Singh. ..L. Rep. 1 L A. 317.
APPELLATE COUBT— POWERS OF—
Act XX1I1. of 1861, S 37.] In a suit on a mort-
gage bond, and an agreement under which the
defendants, the mortgagors, rented the lands
mortgaged from the plaintiff, the mortgagee, the
defendants, having applied for and failed to obtain
an adjournment in the Court of first instance,
to enable them to put in a reply to the claim
did not appear to defend, and the Court of first
instance decreed the plaintiff's claim, except
to the interest sought to be recovered. The
plaintiff appealed on the matter of int
the defendants did not defend the appeal; but the
Judge, holding that, under § 37 of Act XX I II .
of 1861, he was at liberty on the appeal preferred
by the plaintiffs to open the whole case, and
APPELLATE COURT— POWERS OF—
considering that the Court of first instance was
justified in refusing to allow time to the
defendants, and that, looking into the deeds
there was reason to believe that the plaintiff's
claims for possession was not maintainable, and
that one of the deeds sued on, was invalid for
want of registration, reversed the decree of the
first Court and remanded the case ;—
Held, that the Judge's order could not be sup-
ported under J 37 of Act XXIII. of 1861. He
had held that there had been an improper con.
sideration and admission of evidence affecting
the merits of the claim, though those matters
were never put in issue in the appeal before him,
whereas he should have confined himself to de-
ciding the matters put in issue by the parties.
The only question before the Judge was that
raised by the plaintiff, and he should have con-
fined his decision to that question. Durca
Prasad b.Khairati. Pearson and Oldfield,]].
1. L. Rep- 1 All. 64ft, 1878.
See also Power of Appellate- Court.
APPLICATION FOR ASSESSTMUNT
OP MESNE PROFITS— Limitation.
See Civil Procedure Code, Act
VIII. of 1859, ( 197.
DlLIJAR HOSSEIN 9. MujEEDUN-
mssA I. L. Bep. 4 Cal.
APPLICATION BY AN ATTORNEY
UNDER RULE 149 OF THE
COMMON LAW RULES OF THE
SUPREME COURT.
See Attorney and Client. 1.
Aba Ishmaii. v. Aba Thara...L
L. Rep, 1 Bom. 203.
APPLICATION FOR DISCHARGE
FROM IMPRISONMENT.
Sw Civil Procedure Code, Act X. of
1877, S 843.
Rattansi Kalianji...L L. Rep.
2 Bom. 148.
APPLICATION TO ENFORCE A DE-
See Limitation. 89.
Prabacharrow e. Pottankah ..
I. L. Rap. 9 Had. 1.
DiQAizeu by Google
{ 1» )
DIGEST OF CASES,
APPLICATION TO ENFORCE OB
KEEP IN FORCE DECREES OB
ORDERS.
See Limitation. 67. 70. 73. 74. 75.
77. 78. 80. 83. 83. 84. 86.
88.
— Application under Act VIH. of 1859, i 385.
See Limitation. 77.
Husain Baksh v. Madge. ..I. L.
Bop. 1 AIL fiS5.
—Application for Stay of Execution is not an
Set Limitation. 78,
Fakir Muhammad g. Ghulam
HUSA1N...I. L. Bep. 1 All.
080.
-^—Application for Transfer of Decree to an
other Court for Execution is.
See Execution of Decree. 18.
Collins v. M aula Baksh. ..I. L
Bep. 3 All. 384.
— " Date of Applying "—Application to stay
Execution.
See Limitation. 78.
Fakir Muhammad v. Ghulam
Hussain...I. L. Bep. 1 AIL
580.
1 Though Informal, is Sufficient.
See Limitation. 80.
Bekari Lal e. Salik Ram... I. L.
Rep. 1 All. 676.
APPLICATION POR EXECUTION OF
DECREE.
— Is not a "Suit."
See Limitation. 40,
Jiwah Singh «. Sarnam Singh.
L L. Bep. 1 All 97.
See the Index heading Application
to enforce, or keep in force,
Decrees or Orders.
- Exclusion of Date of — in Computation of
Period of Limitation for Execution.
See Limitation. 83.
Dhonessur Kooer it. Roy Goo-
In Favour of Firm in Agent's Name-
Application by Agent succeeding Agent
named in Decree.
See Execution of Decree. 13.
Lachuan Bibi e. Patni Ram...L
L. Rep. 1 All. 510.
Joint Decree— Application for Paitiul Exe-
cution of.
See Limitation. 75.
Rah Antaw. Ajudhia Singh...
L L. Bep. 1 AIL 331.
- Made after Act IX. of 1871 came into
operation for Execution of Decree pass.
ed before.
See Limitation. 69. 70. 78. 74.
75. 77. 80. 81. 88. 84. SB.
88.
- Made by Agent of Finn succeeding the
Agent in whose Name Decree passed.
See Execution of Decree. 18.
Lachman Bibi *. Patni Ram...
L L. Bep. 1 AIL BIO.
n behalf of Judg
See Execution of Decree. 8.
An TO MlSRBB V. BlDNOOMOOKHEB
Dahkb...L L. Bep. 4 CaL
608.
- Payable by Instalments.
See Limitation. 71. 71a. 73. 73.
-Made by Alleged Purchaser— Refusal—
See Act ZXHL Of 1861, f 11. 1.
SOBHA BlBEB V. MlRZA SAKHAMAT
Au...L L. Bep. 8 CaL 371.
See Appeal— Civil. 9.
Ranjit Singh b. Mbherban Koer.
L L. Bep. 3 CaL 683.
— Act VIII. of t%&—Act X. of 1877, i 130.]
.n application, under Act VIII. of 1850, for
decree, was rejected by the Dig.
1 the ground that the judgment-
creditor bad withdrawn from the former applica-
Tbis order was reversed on appeal, and
;e was sent back for disposal on its merits.
The Judge then held that Act X. of 1877, which
had just come into force, applied, and, on the
dee Sahoy..,I. L. Rep. 3 ground that the decree-holder had failed to get
Cal. 336. 1 execution on his former application, dismissed
D.grt.zsdbvGOOgle
DIGEST OF CASES.
AMPLICATION FOB EXECUTION Of
DEGREE— contd.
the petition. The Judge referred the case
the High Court on the question whether he was,
under the circumstances, at liberty to grant the
application : —
Held, that he was; and that the application
ought to have been dealt with under the law
which was in force at the time execution
sought. Section 230 of Act X. of 1877
inapplicable, as the mode of procedure t
laid down can only be followed in cases in which
a previous application has been made under that
section and has been granted, and where the
Judgment- creditor is unable to satisfy the Court
that he used due diligence in following up such
previous application. Byraddi Subbarkddi v.
Dakaffa Rau. Marfan, C.J., and Forbes, J...
L L. Rep. 1 Had. 403, 1878.
APPLICATION FOB GRANT OF PRO-
BATE—Right of Creditors of Alleged
Heir of Testator to oppose.
See Probate. 8.
Desfutty Singh. ,, I. L. Bep. 2
Cal. 208.
APPLICATION BT HEIR OF DECREE -
HOLDER FOR EXECUTION— Cer-
tificate to collect Debts not necessary to
authorize.
See Civil Procedure Code, Act
VIL of 1869, $ 208.
Kasam Au v. Hauha-.L L.
Bep. 1 AIL see.
APPLICATION FOB LEAVE TO SUE
IN FORMA PAUPERIS- Abandon.
merit of — Subsequent Payment of Stamp
.—Limitation.
Sri Limitation. 37.
CH UNDER MOHUN V. B HURON
Mohihi... L L. Bep. 9 Cal.
389.
See Petition for Leave to Sue in
forma Pauperis. 1. 3.
Skinner ». Oede...L L. Bep. 1
AU. 230; L.Bep. 6 I. A.
126; SCal. Bep. 831.
See Bait in forma Pauperis.
NtSMUi. Chunoba v. Doval Nath.
I. L. Bep. 2 Cal. 130.
AFFLCATION FOB LEAVE TO SUE
IN FORMA PAUPERIS— cd* id.
Appeal from Order rejecting.
See Appeal— CiviL 18.
Colus v. Manohar Das-. I. L.
Bep. 1 All. 746.
Unsuccessful — not a Demand by Way of
Action.
See Mahomedan Lair— Dower.
1.
Ranee Khajooroonissa «. Ran ee
Rveesoonissa L. Bep. 3
LA. 286
APPLICATION BT HOOETIAB ON
BEHALF OF JUDGMENT-CRE-
DITORS FOB EXECUTION OF
DECREE— Act VIII. of 1859,, 107.
See Execution of Decree. 9.
ANTO MlSKEEv. BlDHOOMOOKHEE
Dabbi...L L. Bep. 4 Cal.
60S.
APPLICATION BT PETITION WITH-
OUT SUIT FOB APPOINTMENT
OF GUARDIAN.
See Guardian— Appointment of.
Bittan...I. L. Bep. 2 CaL 357.
APPLICATION FOB BE8TITUTI0N
BT PERSON DISPOSSESSED—
Limitation for.
See Limitation. 68.
GujARfl. Barve X L. Bep. 2
Bom. 673.
APPLICATION FOB STAT OF EXECU-
TION OF DECREE IS NOT AN
APPLICATION TO ENFORCE OR
KEEP THE DECREE IN FORCE.
See Limitation. 78.
Fakir Muhammad o. Ghulam
Husain L L. Rep. 1 AIL
580,
APPLICATION FOB TRANSFER OF
DECREE TO ANOTHER COURT
FOB EXECUTION— Is an Application
to keep Decree in Force.
See Execution of Decree. 18.
Collins v. Maula Baksh ..L L.
Bep. S AIL 284.
DigiiizsdbyGOO^Ie
DIGEST OF CASES.
APPOINTED DAUGHTER.
See Hindu Law — Inheritance —
Father's Bister's Boa.
Thakoor Jeebnath Singh v. The
Court of Wards ... L. Rep.
3 1. A. 163 ; 15 Bang. L. K.
190 ; S3 W. R. 409.
APPOINTMENT — Power of — Execution
Of.
SWWUIB.
Fekrsen «. Simpson ...L I*. Rep.
4 Cal. 014.
APPOINTMENT OF GTJARDTJLN— Appli-
cation for — by Petition without Suit.
See Guardian— Appointment of.
Bittan'...L L. Rep. 2 CaL 807.
APPOETIONMENT.
See Account 1.
HtrjiJinao. NaranMulji ...1 L.
Rep. 1 Bom. 1.
■ Of Compensation for Land taken up for
Public Purposes— Finality of Decree.
See Land Acquisition Act X. of
1870, § 39.
NlLMONEEO. RAMTII.'NDFIOO ..L Ii.
Rep. 4 Cal. 767.
APPORTIONMENT OP MORTGAGE
DEBT — Mortgage — Equity of Redemption —
Proportionate Share of Mortgage Debt.} A.,
the holder of a decree upon a mortgage-bond,
attached in execution a one-third share of a
certain mania, one of seventeen mouaas included
in the mortgage, and the equity of redemption in
which one-third share had been purchased by
B. Held, that although, as laid down in Naicai
A-imut AH Khan v. Jowakir Singh {13 Moo. I.
A. 404), B. would have been at liberty to insist
that his one-third share should be burdened with
no more than a proportionate amount of the ori-
ginal mortgage debt, and might claim to redeem
such share upon payment of that quota, yet as he
had not shown what that proportion was nor paid
it into Court, that A. under the circumstances
was entitled to enforce his attachment. Hirdy
Narrain o. Sied Alla Oolla. Jaikion and
Tottenham, J] ...L I» Bep. 4 Cal. 72 ; 2 Cal.
Rep. 531, 1878.
APPROPRIATION OF PAYMENTS.
HlRji JiNA r. Naran Mui,ji...L
L. Rep. 1 Bom. 1.
Guarantee,] In consideration that the
plaintiffs would advance a certain sum of money
to the C. Company (Limited), to pay the pas-
sage money of certain actors, two of the Direc-
tors agreed that the plaintiffs should " repay
themselves the amount from the first moneys
received by them on account of the C. Company,
Limited, and each of the two directors agreed
to hold himself personally responsible for the
payment of half the amount of any deficiency
(should there be any) of the amount realized
by" the plaintiffs "in the manner above de-
scribed." At tbis time the plaintiffs had bees
acting for some time as the bankers or agents of
the Company, advancing money to them from
time to time and paying and receiving money
for them almost daily, and keeping a regular
cash account with them, which was regularly
entered in the plaintiff1? ledger. In a suit by
the plaintiffs against the executrix of one of the
directors upon the above guarantee, it appeared .
that the plaintiffs, instead of applying the first
loneys coming to their hands in liquidation of
te amount advanced under the guarantee,
applied such moneys towards the payment of
other debts due to themselves by the Company : —
Held, that the plaintiffs were bound, as between
themselves and the guarantors, to appropriate
the first moneys of the Company which they
received towards payment of the guaranteed
debt, and that if tbey omitted to do so, it was
heir own risk. As the plaintiffs had in
received sufficient to pay the amount of
the passage money, the guarantee was dis-
charged. And it made no difference that the
cash account, kept bythe plaintiffs with the
Company, was an ordinary debtor and creditor
Jul kept by the plaintiffs as bankers or
agents, or as treasurers of the Company, no
other account than that being kept by the
plaintiffs with the Company, and that being the
account which both parties had in view when
the guarantee was given. Nicholls v. Wilson.
Garth, C.]., and Markby, ]., affirming on appeal
White, ]. ...I. L. Rep. 4 Cal. 563; 3 Cal.
Rep. 861, 1878.
D.gmzed by GoOgle
( 145 )
DIGEST OF CASES.
ARBITRATION— Agreement to Refer to—
Revocation— Specific Performance.
See Contract. 8.
KOEGLBRH. TheCoRIHGA OlL Co.
I. L. Sep. 1 Cal. 42,
See Suit for Land . 3. .
Kkuje «. Frasrr ...L L. Rep. 2
CaL 44S.
■ Award, Judgment in Accordance with —
See Arbitration. 4. 0.
■ Award, Order to File— Appeal.
See Appeal-Civil. 13. 13a.
Award, Refusal to Confirm.
See Appeal— Civil. 34.
Award, Remission of.
See Arbitration. 3.
— - Award, Setting Aside — Misconduct of
Arbitration.
See Arbitration. 7.
— Award, Validity and Finality of.
See Arbitration. 7.
L — - Act XVIII. of 1873 <JV. W. P. Rent
Ad)— Act XIX. of 1873 (N. W. P. Land Revenue
Act.)] Under the general law, parties to suits
may, if they are so minded, before issue joined,
refer the matters in dispute between them to
arbitration and after issue joined, with the leave
of the Court
Act XVIII. of 1E73 does not prohibit the
parties to the suits mentioned therein from re-
ferring the matters in dispute between them in
such suits to arbitration. Where, therefore, the
parties to a suit under that Act agreed to refer
the matters in dispute between them to arbitra.
tion, after issues bad been framed and the
evidence recorded, and applied to the Court to
sanction such reference: — Held (Stuart, C.J.,
dissenting), that the Court was competent to
grant such sanction, and on receivingthe award,
to act on it. Gosh At N Girdhariji v. Durga
Devi I. L. Rep. 2 All. 119,1879, F.B.
2. Insolvency — Composition — Contract
Act (IX. of 1872, § 65.)] AT. on the one part, and
his creditors, in eluding Con the other part, agreed
to refer the difference between them to arbitra-
tion. The award recited that A'.'s liabilities
amounted to Rs. 21,502, while his assets consist-
ed only of Stores, &c, of the value of Rs. 16,539,
and " awarded that in payment of the said sum
ARBITRATION- cantJ.
of Rs. 21,501, the stores, fee, now in K.'s posses-
sion, be made over to the creditors ; and the
creditors have released K, from the payment of
the said balance of Rs. 4,632; now there is no
claim for these debts by the creditors against
K , " and directed that K. should dispose of the
stores for the benefit of the creditors, and that
if he misappropriated any of the property, he
should be personally liable for the loss sustained
by the creditors. This award was signed by C,
amongst other creditors, but it was not signed
by all the creditors. C. received a dividend under
the award. In a suit by C. against K., to recover
debt which had been compounded under the
award, alleging that the award was not binding
n the ground that all the creditors had
not signed it ; that several of the creditors who
signed it had sued and recovered their
debts from the property assigned under theaward,
and that K. had fraudulently disposed of some
of such property; and that, if the plaintiff did
there would be no assets left to satisfy
his debts;—
Held, that C. and all persons who signed the
award, and who were parties to and signed the
agreement to refer to arbitration, were bound by
eir acts. The agreement entered into for the
tisfactlon of the claims of creditors was a new
contract substituted for former contracts be.
veen creditors and K. If creditors who had not
igned the award obtained decrees, the creditors
who had signed it could only protect themselves
under the award. They could not rescind the
award and fall back on their old debts, in satis-
faction of which the defendant had assigned all
his property for the benefit of his creditors, and
that the suit was not maintainable. Section 65
of the Contract Act IX. of 1872 did not apply,
Khbta Mal v. Chuni Lal...L L. Rep. 2 All.
173.
3. Act VIII. of i8$$,U 323,334— Remis-
of Award—No Illegality apparent on face
of Award- - Refusal of Arbitrator to reconsider—
Decision by Court.] The plaintiff claimed to
jet Rs. 52O, being the amount of presents
ved at his marriage, which he alleged had
been appropriated by the defendants. The de-
fendants alleged that a sum of Rs. 1,132 had
been expended on the plaintiffs marriage out of
the funds of a firm in which the plaintiff, his
father, and they were partners ; that they had
received the sum claimed, but that the plain-
DigitizsdbyGOO^Ie
DIGEST OF CASES.
ARBITRATION-fln>W.
tiff's father had received and expended a sum
Rs. 549 which had been presented to the plai
tiff on his marriage, and that the plaintiffs father
had entered the sum claimed in the partnership
books to the credit of the firm, but that no sum
on account of marriage presents had come into
their hands. The parties agreed to refer the
matter to arbitration, and to abide by the deci-
sion of the arbitrator. .The arbitrator made an
award, in which he stated that he had investi-
gated the case, taken the depositions of witnesses
and the statements of the parties, and had taken
into consideration the custom of the brotherhood
to which the parties belonged, and perused the
passages in the Hindu law referred to by the
parties and their pleaders. The plaintiff sub-
sequently obtained the opinion of certain pandits
to the effect that under Hindu law, gifts at
riage are regarded as separate acquisitions,
applied to the Munsiff to remit the award, with
these opinions, to the arbitrator. The Munsiff
did so, requesting the arbitrator to consider the
opinions and return his own opinion in writing
within a week. The arbitrator having refused
to act any further in the matter, the Munsiff
preceded to determine the suit : and gave the
plaintiff a decree ; —
Held (Pearson, J., dissenting), that there being
no illegality apparent on the face of the award, the
Munsiff was not justified in remitting the award,
or in setting it aside and proceeding to determine
the suit himself, but that he should have passed
judgment in accordance with the award-
In the face of the statement In the award that
the arbitrator had "perused the passages ir
Hindu law referred to by the parties and their
pleaders," the Munsiff had no right to as:
that the arbitrator had- not correctly applied the
Hindu law; and if the Munsiff differed from
him, and believed that he had not correctly
applied the principles of the Hindu taw,
award was not thereby rendered invalid, and
ought not to have been remited for reconsider-
ation. By accepting him as their arbitrator,
the parties accepted his judgment and opinion,
and his understanding of the Hindu law appli-
cable to the case, and were bound by his judg-
ment and opinion and his law, no matter how mis
taken he may have been in these respect!
Nahak Chand e. Ram Narrayan...L L. Rep.
3 AIL 181, 1878, 17. B.
4. Matters referred to— Arbitrators
doubting Correctness of their Decision — Award,
ARBTTttATrOBT— contd.
Validity and Finality of— Appeal, Right of— Act
VIII. of 1859, %% 335-327.] Matters in dispute
were referred to the arbitration of five peisons.
Pour of the arbitrators made an award on the
27th of August T-875. On the 3rd of September
1875, the same arbitrators granted an applica-
tion by one of the parties for a re-hearing, but
before the re-hearing, one of the four died, and
finally an order was made by two of the survivors
striking off the application. On the 21st of Febru-
ary 1875, within thesis months allowed bylaw,
application by certain of the parties interested,
ls made to file the award under f 327 of Act
VIII. of 1859. This application was opposed,
but the Court ordered the award to be filed,
and gave a decree for the plaintiff 1 —
Held, that the award was not a valid and final
award, and that the decree passed thereon was
not final, and that an appeal would lie.
Where there has been an award, and the decree
passed by the Court below is in accordance with
that award, that judgment is final; but where
it can be shown that there was not in fact any
award on which a judgment could be based,
there is no final decree, and an appeal will lie.
In the present case, the arbitrators, after
making the award and after an interval of only
a very few days, had expressed a doubt as to
the correctness of their award by intimating their
readiness to reconsider their decision. It was
not the intention of the Act that the Court should
bind parties by the result of a private arbitra-
tion when the arbitrators themselves plainly
showed that they doubted the correctness of
their decision. Boon] ad Mat hoor *. Nathoo
SHAHOO. Jackson and Cunningham, J J. ..I. L.
Rep. 3 6*1. 875 ; 1 0*1. Rep. 458, 1877.
6. Act VIII. 0/1859, ,317— Denialof
Arbitration Proceedings.} Section 327 of Act
VIII. of 1859 intended to provide for those cases
only in which a reference to arbitration is admit-
ted, and an award has been made. Where one
of the parties denies that he had referred any
dispute to arbitration, or that an award has been
made between him and the other party, that is
sufficient cause why the award should not be filed.
The applicant for its admission should be left
to bring a regular suit for the enforcement of
the award. Per Spaniie, J. Hussain Bibi ».
Mohsin Khan...L I.. Rep. 1 All. ISO, 1876.
S. C. under Appeal-Civil. 18.
by Google
DIGEST OF CASES.
{ 1M )
ARBITRATION— rimfi/.
a.-
■I VIII. of 1859, 1 321.— Arbitration
—Awtrd — Appeal.] No appeal lies trom a decree
passed by a. Civil Court, in accordance with an
award of arbitrators made without the interven-
tion of a Court of Justice, under Act VIII. of
'S;9, 5 3?7- Lakshman Shivaji v. 1
Not (8 Bom. H. C. Rep. A. C. J. 17) dissented
from. Vishnu Bkau Joshi i- Ravji Bi
Joshi. West and Pinkty, JJ..X L. B«p. 3
Bom. 18, 1878.
7. Act VIII. of 18J9, § 317. — SWtf«J
osideAreard — Misconduct of Arbitrators.'] In a
application under § 317 of Act VIII. of 1859, <
have an award riled in Court, so as to be enforce
as a decree, it was objected, amongst othi
things, by the defendant, that the award whic
determined the succession to a talookdary n
gistcred under Act I. of I&69, having been based
on a certain will produced, which in terms refer-
red to another will of the same testator
produced, there was a miscarriage on the part
of the arbitrators in making their award; the
whole of the will, in the absence of the
last-mentioned document, not having been
before them. It appeared, that the defendant
In the proceedings before the arbitrators, not-
withstanding the knowledge that this document
was withheld, submitted, nevertheless, to take
his chances of the arbitration ; suggesting in
fact favourable presumptions to himself in con-
struing the will produced, or that the whole will
not having been produced it should be declared
not to be operative, and that consequently the
dispute should be determined according to the
British law of succession as laid down by Act
I. of 1869, or according to custom, or according
lo the Mahomedan law of succession.
Held, that the defendant could not now set
aside the award on the objection taken.
Upon the true construction of Act VIII. of
1859, the earlier sections are not incorporated
into the 327th section as they are expressly in-
corporated into the 336th ; and the words " suf-
ficient cause" must be taken to comprehend
any substantial objection which appears upon
the face of the award or is founded on the mis-
conduct of the arbitrators, or on any other
ground which would be considered fatal to an
■ward on an application to the Courts in England.
Chciwdhhi Muktaza Hoosein v. Musst. Bibi
Bechunnissa...Ii. Rep. 8 L A. 209, 1876.
12
ARBITRATORS— Miscarriage of— Setting
aside Award.
See Arbitration. 7.
Chowdhm Murtaza Hossein e.
Musst. Bibi Bechunnksa .
L. Rep. 3IA, 200.
Power of— to administer Oath other than
in prescribed Form.
See Oath.1 Act X. of 1873, §5.8,
10, 13.
Wali-ul-la t. Ghulam A11...I. ■
L. Rep. 1 AIL B3f>.
Revocation of Authority of.
See Contract. 8.
KoEGLER V. CoRINQA OtL Co. ...L
L Rep. 1 Cal. 48, 466.
See Suit for Land. 3.
Kkllis r. Fraser-.Z. L. Hep. 2
Cal. .446.
ARSIS— POSSESSION OF — WITHOUT
LICENSE.
See Act XXXI. of 1860, f 83, CI. 1.
Reg. v. Bhista.,.1. L. Rep. 1
Bom. 308.
ARRANGEMENT FOR SEPARATE
PAYMENT OF RENT.
See Co-Sha.ro ra of Land. 1.
Gum Mahomed o. Mohan... I. L.
Rep. 4 Cal. 96.
ARREARS OF ESTATE UNDER
ATTACHMENT.
See Act XT, of 1809, § S.
BaNWAKEE LALL v, MoHABEER
Proshad... L. Rep. 1. I. A.
98.
ARREARS OF MAINTENANCE- Charg-
ed on the Estate in hands of Hindu
Widow — Personal Decree against Widow
— Right of Execution Purchaser and
Reversionary Heir.
See Feraonel Decree against a
Hindu Widow.
Baijun Doobby e. Bsrj Bhookun.
L. Rep. 21. A. 275; L L.
Rep. 1 Cal. 153.
- Jurisdiction oF Mofus'il Small Cause Courts
to entertain Suits for.
See Small Cause Court— HofusalL
1.3.
Digitized byGOOC^Ie
DIGEST OF CASES.
(
)
ARREARS OF MAINTENANCE- -
Apaji v- Ganguai ...L L. Rap. 3
Bom. 683.
SlDLINGAPA <r. SIDAVA...L I..
Kep . 3 Bom. 634.
See Hindu Law— Maintenance of
Widow. 14.
Savitribai v. Luxmibai.-.L L.
Bep. 3 Bom. 573.
— — Limitation — Demand and Refusal.
St? Hindu Law— Maintenance of
Widow. 3. 4. 6.
Rangov. Yamu nadai . . I. L. Rop.
3 Bom. 44.
Jivi e. Ramji.,.1 L. Rop. 3
Bom. 307.
Krishna v. Okhilmoni.-.L L.
Rep. 3 Cal. 331.
ARREARS OF RENT— Bhaoli Rent.
See Bengal Act VH of 1869, §§
314.53.
KishenGopaulMawakt. Barnes.
I. L. Hep. 2 Cal. 374.
■ — Bhaoli — Suit for Money Equivalent.
Set Act XVIII. of 1873, §03.1.
Taj ud din v- Rah Parshad ,.L L.
Rep. 1 All. 317.
— Enhanced Rent— Interest on.
See Interest. 8.
Khajah Ashanoollah v. Khaja
Aftaboodeen...I. L. Rep.
4 CaL 584.
■ ■ Grain Rent — Suit for Money Equivalent
of Arrears.
See Act XVIII. of 1873, § 93. 1.
Tajuddin v. Ram Parshad... I.
L. Bep. 1 All. 317.
— — Limitation for Execution of Decree for.
See Bengal Act VIII. of 1861
J 59.
GoLOKEMONEY D. MoHRSH ChUN.
DER...L L. Rep. 3 Cal. 547.
1 Limitation to Suit for.
See Bengal Act VIII. of 1860, j 81.
Rah Sunker e. Bib Chu:
I L. Rep. 4 Cal. 714.
See Limitation. 4. 9. 10. 13.
Watson & Co. ». Dkonendra...
L L. Rep. 3 CaL ft-
ARREARS OF BENX-otW.
Brojendro v. Rakhal L L.
Rep. 3 Ca.L 781.
HURRO PraSHADE. GOi'AUI. DlS...
Ibid. 817.
PuRRAN CHUNDERo. MUTTVLAL...
L L. Bep. 4 Cal. 50.
Publication and Service of Notice of Sale
for — defective — " Sufficient Plea." for set-
ting aside Sale.
See Bengal Rag. VIIX of 1819, f 8.
GOWREE LALL V. JoODKISTEER...
I. L. Rep. 1 Cal. 359.
Sale for.
ore Futni Talook.
Brinoaban Sircar Chowdkrv v.
Brindadan Dev Chowdhry..
L. Rep. 1 1. A. 173.
Sale of Putni Tenure for— Suit to set aside
Sale— Date of Publication of Notice.
Matukgee Churn *. Moorrarv
Mohun L L.Kop. 1 CaL
175.
—Sale of Under-Tenure in Execution of
Decree for — Process against other Pro-
perty of Debtor.
See Bengal Act TUX of 1869, j 61.
HURRISH CHUNDER V. COLLECTOR
of j kssoke.X L. Rep. 3 CaL
718.
— Suit for — Payment into Court— Limitation.
See Bengal Act VIII. of 1869, 1 31.
Rah Sunker v. Bir Ciiunder...
I. L. Rep. 4 CaL 714-
— "TYmai" Rent.
See Insolvency. 3.
China S. Mudalu>. Kan das w ami
Reddi-X. L. Rep. 1 Mad. 69.
— Zemindar! Rent — Right of Mortgagee of
Putni Talook to prevent Sale of Mort.
gaged Property.
See Co-Sharers of Putni Talook.
Mohesh Chunder ii. Rah Pro-
susho ... I. L. Bep. 4 CaL
Digitized byGOO^Ie
( ira )
DIGEST OF CASES.
ABBEABB OP BENT AT ENHANCED
SATE- -Interest on.
See Interest. 8.
K-HAJA.H AsHANOOLLA O. KAJEE
AFTABOODDSEN...L L. Rep.
4 Cal. 604.
ABBEARS OP BEVENUE— Payment of—
by Lambardar— Suit by Co-Sharer for
Profits— Set-off.
See Set-Off. 1.
Udai Singh v. Jaoam Sinom ...I.
L. Sep. 1 AD. 130.
— — Right of Purchaser at Sale for.
See Mortgage. 8.
Ramchanbra o. Bhimrav...I. Ii.
Sep. 1 Bom. 077.
— Right of Purchaser atSalefor— to enhance
Rent.
See Enhancement of Bent. 1.
PURUAHUND C ROOKJNEE...I. If-
Bep. 4 Cal. 793.
— — Sale for— of Estate under Attachment —
See Act XI. of 1850, ( 5.
BUNWARER LALL fl. MoKABGER.
L. Bep. II. A. 89.
— • Sale for— Purchase by Unrecorded Co-
Par tner— Encumbrances.
See Act XI. of 1889, §63.
Abdool Bari v. Ramdass Cooh-
□0O...I. L. Bep. 4 Cal. 607.
Sale for— Purchase by Manager of Joint
Hindu Family in his own Name.
See Act L of 1845, 5 21.
TOONDUJt H. PoKHNARAIN Ik
Bep. 1 L A, 842.
Setting aside Sale for — after Judgment
Debtor's Interest in Surplus Proceed:
has been sold in Execution.
Sat Sale in Execution of Decree. 17.
Ram Tuhul v. Bisseswar L.
Bep. 2 1. A. 131 ; 15 Beng,
L. B. 208 ; S3 W. B. SOS.
— Suit by Purchaser at Sate for— to avoid
U nder-Tenures.
Set Sale for Arreare of Bevenue. 1,
Bhago Bidek -b. Rah Kant Roy
I. L. Bep. 8 Cal. 293.
ABBEABS OP REVENTTK— amid.
-Suit to set aside Sale for — obtained by
Fraud of Co-Sharer.
See Bale for Arrears of Bevenue. 9.
Bkookun Chunder v. Rah
S00NDEK...I. L. Bep. 3 Cal.
800,
- Suit for Damages caused by Sale for.
See Damages. 1.
Lallah D. Singh v. Lallah B.
Dayal I. L. Bep. 1 Cal.
406.
"TTBVAI" <BENT)~
Sale for — Right of Official Assignee.
See Insolvency. 2.
Chiha S. Mudali v. Kanda.
swahi Rbddi.,.1. L. Bep. 1
Had. 09.
ABBEABS OP ZEHTNBABI BENT—
Right of Mortgagee of Puttti Taluk to
prevent Sale of Mortgaged Property for.
Set Co.Bharers of Pntni Taluk.
Mohesh Chunder jr. Ram Pro-
soNo...L L. Sep. 4 Cal. 639.
IT— Damages for Malicious— Want of
Reasonable and Probable Cause Act
VIII. of 1859, f soi.
See Damages. 4.
Raj'. Chunder v. Shama Soon-
dari.,.1. L.Bep. 4 Cat 083*
ABBEST PENDING APPEAL-High
Court can order — from Acquittal.
See Appeal— Criminal. 6. 7.
Reg. v, Gobind Tewari I. !L.
Bep. 1 Cal. 281.
Empress v. Mangu...I. Xj. Sep.
9 All. 340.
Arrest by Magistrate — Power of High.
Court.
See Criminal Procedure Code, Act
X. of 1872, f 997. 2.
Reg. o. Gholam Ismail I. L.
Sep. 1 All. 1.
ABBEST- PRIVILEGE PB0H.
See Privilege from Arrest.
Omritolall Dbv...I. L. Bep. 1
Cal 78.
zedbyGOOgle
DIGEST OF CASES.
ARTIFICE AL WATERCOURSE— Right
Flow of Water through.
See Easement. 4.
MCIROABT. KTRET...L L. Rep. S
Had.
Right to the Flow of Water— Presumpti
Right to scour Watercourse.'] The right to the
water of a river flowing in a natural channel
through a man's land and the right to water
flowing to it through an artificial watercourse
constructed on his neighbour's land, do not resl
on the same principle. In the former case each
successive reparian proprietor is, primi facie
entitled to the unimpeded flow of the water ir.
its natural course, and to its reasonable enjoy-
ment as it passes through his land, as a natural
incident to his ownership of it. In the latter.
any right to the flow of the water must rest on
some grant or arrangement, either proved or pre-
sumed, from or with the owners of the land from
which the water is artificially brought, or on
some other legal origin. The right to artificial
watercourses, as against the party creating them,
must depend on the character of the watercourse,
whether it be of a permanent or temporary nature,
and upon the circumstances under which it was
Wood v. Wand (3 EX. 748; 18 L. J. [Ex.] 305I
approved. Primifade, and in the absence of
evidence to the contrary, a right to scour such
watercourse is presumed by law to be incident
to the right to the flow of the water.
Held in this, case, that the plaintiffs legal
right to the enjoyment of water overflowing from
an artificial reservoir through an artificial water-
course on his neighbour's (the defendant's) land
should be presumed from the circumstances
under which the same were presumably created
and actually enjoyed ; subject to the defendant's
right to the use of the water for the purpose of
irrigating his land, by proper and requisite
channels and other proper means. Rameshi/r
Perskad Narain Sinoh v. Koonj Behabi
Pattuck...L. Bop. 6 1 A. 33, 1878; L.
Rep. 1 App. Ca. 121 ; L L. Hep. 4 Cal.
888.
AETIZa.1T— Washerman is not an.
See Madras Act I1X of 1971. 1.
Poonmi L L. Rep. 1 Mad.
174.
ASCETIC— Succession to the Property of an.
See Hindu Law — Inheritance—
Ascetic.
Khuogekderv. Shabupoir ...I. L.
Rep. 4 Cal. 543.
ASSENT OF SAPINDAB-Adoption by
Widow without Written Authority from
Husband, after Succeeding as Heirto her
Son- -Motives.
See Hindu Lav- -Adoption. IS.
Rajah Vbllanki «. Venkata
Rama...l. Rep. 4 I. A. 1 ;
L L. Rep. 1 Had. 174.
ASSESSMENT— tfxwri- Payment of.
See Land Tenure* in Kanara.
Mortgagee in Possession, Liability of— to
pay.
See Katrulayatdar Knot.
Krishna]) v. Ramchandra L,
L. Rep. 1 Bom. 70.
See Qhatwali Tenure,
Leelanund Singh o, Tkakoor
Munrunjuh L L. Rep.. 3
CaL 261.
Right to levy — on Rent-Free Lands.
See Resumption. 9.
Kevai. t. Talukdarie Settle-
vent Officer... I. L. Rep. 1
Bom. 530.
affect Proprietary
- Variation of— does n
Right.
See Bombay Act I. of 1866, j 36.
Collector of Thana o. Daoa-
bhai I, L. Rep. 1 Bom.
353.
ASSESSMENT BY MUNICIPAL COM-
MISSIONERS—Appeal against
See Beng. Act HI. of 1864. $ 83.
Mahessur Dass «. Collector,
etc., or Chafra...1. L. Rep.
1 CaL 409.
■Acquittal of Accused without re-
■rdingtheOpinionof— Revision— Act X.of I&J2,
f 297.] Held, where, without asking the opinion
of the Assessors, a Court of Session acquitted
iccused person, after his defence had been
heard, that such omission, though a serious it-
regularity, yet, as it did not affect the conduct
of the prosecution, or prejudice the accused in
Digitized byGOO^Ie
DIGEST OF CASES.
his defence, was not, with reference to the pro-
visions of ft 383 and 300 of Act X. of 1871, a
ground for revisional interference. In the matter
of the Petition of Narain Das- Pearson, J ... I. L.
Rep. 1 All. 610, 1878.
ASSIGNEE OF CHOSE IN ACTION—
Right of.
See Assignment of Chose in Action,
Kanhaiya I.al 9. Domingo... I. L.
Rep . I All. 732.
ASSIGNEE OF CO-SHARER IN UNDI-
VIDED ESTATE— Right of.
See Mortgage. 0.
BvjWATHO. RAM.X)DMEM,..T..Rep.
1L A. 106; 21 W. Rep.
833.
See Partition by the Revenue Au-
tnoritiea.
SHARAT CHltHDBR V. HUKGOBINDO.
I. L. Rep. 4 Cs.1. 010.
ASSIGNEE OF DEBT— Devisee cannot sue
without taking out Probate, or obtaining Certi.
ficate under Act XXVII.ofitoa.-] The represen-
tative of an assignee by devise of a debt, who
has neither taken out piobate of the will of the
testator, nor obtained a certificate under Act
XXVII. of i860, to realize the debts due to his
estate, cannot sue to recover the debt- Sho-
DONE MllHll.LlAS t. HaLALKHORE MOHALDAK.
Morris and Prinsef, JJ...I. L. Rep. 4 Cal 640 ;
3 Cal. Rep. 462, 1878.
ASSIGNMENT— Power to receive Money—
See Stamp. 3.
t Buacvandas e. Abdul Husein...
I. L. Rep. 3 Bom. 49.
ASSIGNMENT BY AUCTION PUR-
CHASER AT EXECUTION BALK
See Hindu Law— Sale of Land. 1 .
And see Sale in Execution of De-
cree. 1.
Govihd v. Govind-.X L. Rep. 1
Bom. 000.
ASSIGNMENT OF CHOSE IN ACTION
■ — Promissory Note — Suit by Assignee.']
promissory note not made payable to order or to
bearer or to any other person than the payee, and
therefore not a negotiable instrument,
assigned to a third person, who sued in his
name on the note : —
ASSIGNMENT OF CHOSE IN ACTION
Held, that by the law of India a chose in
action is assignable, and the assignee is entitled
to sue in his own name ; but whatever defences
might be set up against the assignor may also be
set up against the assignee, or at least such de-
fences as might have been set np, up to the time
when notice of the assignment was given to
the defendant. Kanhaiva Lal v. Domingo.
Turner, C.j. (Offg.), and Pearson, J. I. L. Rep.
1 AIL 738, 1B78.
ASSIGNMENT BT DEBTOR OF PRO-
PERTY IN TRUST FOR CREDI-
TOR.
See Arbitration. 3.
Khetu Mal v. Chuni Lal ..I. L.
Rep. 2 All. 173.
See Principal and Surety. 4.
Pooosbc. Bank of Bengal L
L. Rep. 3 Cal. 174.
ASSIGNMENT OF DECREE— Cross-De-
crees— Act X. of 1877, 5 346.
See Execution of Decree. 3.
Muru DHARe. Parsctum Dass...
I. L. Rep. 3 AU. 9L
ASSIGNMENT OF DECREE FOR SALE
OF MORTGAGED PROPERTY.
See Registration. 10,
Gopal v. Trihbak I. L. Rep.
1 Bom. 367.
ASSIGNMENT OF LEGACY BY LEGA-
TEE TO EXECUTOR.
See Will. 3.
Vaugiian v, Heseltine L L.
Rep. 1 All. 753.
Hurst v. Mussoorie Bank...
Ibid, 768, 766.
ASSIGNMENT OF MORTGAOE-AVfu-
tration Act VIII. of I0J1, f 17 — Extrinsic ttt-
dence— Evidence Act. I. of 1872, f gi — Title to
sue — Amendme7it of Plaint — Limitation — Act
IX. of 1871, i 22, and Sched. II., Arts. 133, 144,
145 — Power of Attorney — Foreclosure — Dam.
dupat.] An equitable mortgage was created on
the 15th of August 1 86z, by deposit of title-
deeds, in March 1873 the mortgagee, P. D.,
executed an assignment of all his property, and
of all debts due to him, and alt securities there-
for, to the plaintiff. The assignment also con-
tained a power of attorney from the mortgagee
to the plaintiff, " in the name of the said P. D.,
by Google
( 169 ) DIGEST OF CASES. { 16© )
ASSIGNMENT OF MORTGAGE amtd. ASSIGNMENT OF MORTGAGE-™^.
his executors, &c, but for the sole use of the
said Adarji Dadabhai (the plaintiff) Co ask, de-
mand, sue for, recover and receive of and from
all and every the person or persons liable in that
behalf all and every (inter alia) the sum »
sums of money and debts hereby assigned
intended so to be, or any of them or any part
of them, to hold the same unto and to the
and behalf of the said Adarji Dadabhai, his
cutors, &c." Some days after the execution of
the assignment, the title-deeds which had been
deposited with the mortgagee in 1862,
handed to the plaintiff, in accordance with the
terms of an agreement to that effect contained
in the assignment. The deed of assignment
was not registered. On the 13th of August 1874,
the plaintiff, as the assignee of the equitable
mortgage, sued for foreclosure. The Court of
first instance (Sargent,},,) held that the deed, as
an assignment, required registration, and that
being unregistered, it could not be received in
evidence; that f 91 of the Evidence Act 1. of
1872, precluded any other evidenceof the assign-
ment being given than the deed of assignment
itself, and this being unregistered and inadmis-
sible, the plaintiff failed to prove his title to sue
as assignee of the mortgagor. The Court, how-
ever, allowed an amendment of the plaint saying
(p. 320), " It was said that to amend the frame
of the suit now by making the plaintiff sue as
attorney for Pestonji Dinsha, would be to intro-
duce a new plaintiff, as to whom the period of
limitation must be reckoned back from the
of the amendment, and that the suit would,
sequently, be barred under the provisions of the
Limitation Act (IX- of 1S71). Now, when a
party is added to the record, no doubt the suit,
so far as he is concerned, is deemed to have been
instituted at the time when he is so added. But
though if this plaint were amended by altering
the description of the plaintiff, and making him
sue as the attorney of Pestonjee Dinsha, there
might nominally be a new suit, yet virtually it
would be the same. It would still be, in fact,
the suit of the plaintiff. I should be of opinion
that no new plaintiff had been introduced, within
the meaning of the Limitation Act-" His Lord-
ship then permitted the deed of assignment to
be given in evidence to show the power thereby
conferred on the plaintiff to sue for and recover
all debts due to P. D., and therefore to maintain
the present suit in respect of the equitable
mortgage.
Held, on appeal, that as the power of attorney
purported to enable the plaintiff to recover the
debts mentioned in the deed on his own account
only, and not on account of F. />., if on the one
hand the suit were regarded as that of P. D., the
power did not enable the plaintiff to maintain the
suit for P. D., and if on the other hand the suit be
regarded as that of the plaintiff, the Court, by
treating the power in the deed as enabling him
to recover on his own account, virtually gave to
that power the effect of an assignment ; and for
that purpose sucb an assignment, whether legaV
or equitable, must be registered: ff if and 47
of Act VIII. of 1871. The Court, however,
being of opinion that the omission to register
.was dne to a misapprehension as to the require-
ments of the law, rather than to any intention
to evade the Registration Acts, under the cir-
cumstances of the case, adjourned the case for
four weeks, to enable the plaintiff to complete
his title by obtaining and registering and put-
ting in evidence a fresh assignment from P. D.
Held also, that the period of limitation for a
suit for foreclosure by the Limitation Act VIIL
of 1871, was either twelve years under Art. 133,
or sixty years under Art. 149 of Schedule II. of
that Act.
Held also, that the rule of dam-dupat applied,
and was not inconsistent with either Art. It8 or
Art 132 of Schedule IL of that Act. Those
articles relate to a time within which a suit
must be brought, whereas the rule of dam-dupat
prescribes that an amount of interest greater
than the principal cannot be recovered at once.
and this rale has not been abrogated by Act
XXVIII. of 1855 or the Limitation Acts, and
was applicable in a case like the present, of a,
mortgage where no account of rents and profits
has to be taken. Ganpat Pandurang v. Adarji
Dadabhai. Westropp, C.J. and Green, J. ..I. I,,
Rep. 3 Bom, 313, 1877.
ASSIGNMENT OF MORTGAGE FOB,
MOKE THAN Re. 100, FOR CON-
SIDERATION LESS THAU Ss.
100.
See Registration. 7.
Satra d. Viseam...I. L. Rep. 3
Bom. 97 .
ASSIGNMENT BT MORTGAGEE —
Rights of Assignee.
See Mortgage. 11.
Sabai Pandkvv. Shah Narain...
I. L. Rep. 2 All. 142.
D.gmzed by G00gle
DIGEST OF CASES.
ASSIGNMENT OF PROPERTY PUR-
CHASED AT EXECUTION S ALE—
See Hindu Law-Sale of Land. 1.
Govinb v. GOVIKD...Z. L. Rep.
1 Bom. 500.
ASSIGNMENT AND RETRAN8FER
BT ENDORSEMENT OF POLICY
OF ASSURANCE-Stamp on.
See Stamp. 1.
Morrison's Policy. ..I. L. Rep. 3
Cal. 347.
ASSIGNMENT OF RIGHT TO SITE.
See Champerty. 3.
GoCULDAS V- LAKHMIDAS...L L.
Rep. 3 Bom. 403.
ASSIGNMENT OF TRUSTEESHIP.
See Alienation of Right of Man-
agement of a Pagoda.
Rajah Vurmah jf. Ravi Vubmah.
L. Rep. 4 I. A. 76; I. L.
Rep. 1 Mad. 230,
ASSOCIATION FOR THE ACQUISI-
TION OF GAIN.
See Company. 1.
Bhikaji v. Bapu...L L. Rep I
Bom. SCO.
ASURA MABRIAGE.
Jaikisondas o. Harkisomdas.-.I.
L. Hop. 2 Bom. 9.
ATTACHING CREDITORS— Priority.
See Execution of Decree. 7.
Narandas v- Bai Manchha ... I.
L. Rep. 3 Bom. 317.
Priority between.
See Limitation. 54.
Ram Kishan it. Bhawani Das. ..I.
L. Rep. 1 All. 333.
priority—Surplus Sale— Proceeds.
&cSale in Execution of Decree. 14.
Mamk Singh b. Paras Ra
L. Rep. 1 All. 727.
ATTACHMENT— Alienation of Property
der — valid when Attachment not j
perly published.
See Civil Procedure Code, Act
VIII. of 1859, f 240.1.
NuR Mahomed u. Altaf A11...X.
L. Rap. 2 All. 58.
ATTACHMENT— centd.
Alienation of Property— When not a Sub-
sisting—Alienation valid.
Set Civil Procedure Code, Act
TCI. of 1859, f 240. 3.
Zaib.un-Nissa s. Jairam Gir..,L
L. Rep. 1 All. 616.
Of Bonds.
See Civil Procedure Code, Act X.
of 1877, i JL68.
NlJRSINGDAS *. TUISIRAM...L L,
Rep. 3 Bom. 658.
Of Coparceners' Interest in Undivided An-
cestral Property.
See Bombay Act V. of 1869.
Akdasjr «, Muse...1 L. Rep. 1
Bom. 601.
See Civil Procedure Code, Act VIH.
of :>869,f i69.
Kalafa v. Venkatesh tl,
Rep. 3 Bom. 676.
See Hindu Law— Alienation of An-
cestral Property. 1. 2, 3.4. 6,
Brikan Das«. Pura...I. L. Rep.
3 All. 141.
GlRDKARI LAL v. KANT0O LAL...
L. Rep. 1 L A. 321.
Phoolbas Koonwar o. Lalla 1.
Sahov...L. Rep. 3 I. A. 7;
L L. Bep. 1 CaL 2E6.
Suraj Bunsi Koer ». Sheo Par.
shad Sing. ..L. Rep. 6 LA.
jAtuOAR Sino •. Ram Lal ..I. l!
Rep. 4 Cal. 733.
See Hindu Law— Liability of An-
cestral Property in the
bands of the Heira for the
Debts of the Ancestors.
Narrayan ». Narso.,.1. L. Rep.
1 Bom. 362.
See Hindu Law— Undivided Fami
ly. 3. 4. 7. 8.
DeENDAYAL V. JUGDEEP...L. Rep.
4 I. A. 147; L L. Rep. 3
Cal. 198.
RaiNarain Dash. Nownit Lal
I. L. Rep. 4 Cal. 809
Luchhi Dai Koer tr. Asmai
Singh I. L, Rep. 2 Cal
213.
Babaji o. Vasadev L T,. Rep,
1 Bom. 85.
Diaxized by Google
DIGEST OF CASES.
ATTACHMENT— amid.
See Bale in Execution of Decree.
10. IS.
i. Venkata-
...I. I.. Sep.
1 Mad. 368.
Vbnkatasami Naikv. Kuppacyan.
Ibid. 394.
— Estate under — Sale (or Arrears of Reve-
nue— Notice.
See Act XI. of 1869, f S,
Banwareb Lali. v. Mohabeer
Proshad... L. Hep. 1 I. A. 89.
Limitation to Suit to recover Property
placed under — under Act XXV. of l86l.
Chap. XXII.
See Limitation. 43.
Akilandahmalv. Peri as a mi... I.
L. Bap. 1 Iliad. 309.
■ Of Malikatia Rights payable for ever.
See Execution of Decree. 10.
NlLKUNTOV. HURRO SOONDEREE.
I. L. Bap. 8 Cal. 414.
— By Mofussil Court of Property in hands of
Receiver of High Court.
3w Receiver, Property in hands
of
Hemchonder Chundu « Pran-
KEiSTO Chunder.,.1. Ii. Bep.
1 Cal. 403.
Of Money. Decree.
See Civil Procedure Code, Act X
of 1877, §373.
Sultan Kuar«. Gulzari Lax.
L I* Bop. % All. 290,
— - Priority.
See Limitation. 34.
Ramkishen 11. Bhawani Das. ..I.
I. Bep. 1 ALU 333.
See Registration. 20.
Ahmad Baksh v. Gobijjdi ..I. L.
Bep. 2 AIL 216.
— Will— Demuttw— Gift of Surplus Interest
— Inconsistent Conditions.
See Hindu Law— Will 13.
Ashutosh v- Durga Churn. ..L.
Bep. 6 I. A. 182.
Assignment — Surety — Principal — Pay-
mint.'] The plaintiff was nominally surety,
ATTACHMENT— contd.
though realty the principal, in the case of two
acts entered into by one Rehmu with the
utive Engineer, Ahmednagar. The plain-
tiffs position was known to trie Executive
ineer, Rehmu executed a document autho-
ig the plaintiff to receive such sums a*
should become due in respect of the works.
On the completion of the works, the Execu-
te Engineer handed over to the plaintiff, with
ehmu's assent, a cheque on the Government
treasury for the amount due on the first contract.
Before the cheque was presented by the plaintiff
for payment, the defendant, who was a judg-
ment creditor of Rehmu, served the Executive
Engineer with a notice attaching any moneys in
his. hands due by him to Rehmu. The Executive
Engineer thereupon stopped payment of the
cheque, the amount of which was eventually paid
to the defendant 1 —
Held, that at the date of the notice of attach-
ment there was nothing left on which it could
Operate, as the cheque had become the property
of the plaintiff, and that the defendant should
refund the amount received by him.
The second contract was sold to the plaintiff
by Rehmu, and the account in the Executive
Engineer's office relating to it, was closed, show-
ing a sum of money to Rehmu's credit at the
date of the defendant's attachment : —
Held, that the plaintiff, being the only person
really interested, was entitled to this sum also ;
for, although the Executive Engineer would
have been legally justified in paying it to
Rehmu, he was not bound, it being really the
plaintiff's property, to pay it to a third person
such as the defendant, the judgment -creditor,
who, if the sum was paid to him, must refund it
to the plaintiff. Bhagvandas Kishordas v.
Abdul Husein Mahomed Ali, West and
Pinkey, JJ I. L. Bep. 8 Bom. 49, 1878.
ATTACHMENT OF PROPERTY, OF
THIBDFEBSOK— Liability of Execu-
tion Creditor in Damages for — Loss of
Property while under Attachment.
See Liability of Execution Creditor
in Damages for Wrongful
Gopal v. Gokaldas.,.1. L. Bep.
Digitized by G00gle
( 166 )
DIGEST OF CASES.
ATTACHMENT 07 UNRECOGNIZED
PORTION 07 A BHAG IN A
BHAGDARI OS NARWADARI
VILLAGE.
Ste Bombay Act V. of 1809.
Ranchodas c Ranchodas...!. L.
Rep. I Bom. 661.
ArTiasib v. Muse. .XL. Bop. 1
Bom. 601.
Attempt.
See Fabricating False Evidence.
Empress o. Mula...L L. Rep. 3
All 108.
1. Bigamy—Penal Code, ff 494,511—
Publication of Baton of ltarrUge.] The act of
causing the publication of banns of marriage
with another woman, by a man having a wife
living at the time of such publication, does not
constitute the offence of attempting to marry
again during the life-time of his wife. Reg. c.
Peterson. ft'<wtmt,J....I. L.ftep.1. All. 86,
1876.
3. To obtain a Briie— Penal Code, \%
161, 511.] To ask foi a bribe is an attempt to
obtain one; and a bribe may be asked for as
effectually in implicit as explicit terms.
Where, therefore, the accused, who. was a
Clerk in the Pension Department, in an interview
with A., who was an applicant for a pension
(having previously informed A. that, as the fact
was, there had been an anonymous petition re-
ceived in the Accountant General's Office,
against A.'s right to the pension, and having
also falsely asserted to A. that there were still
difficulties in the way of his, A.'s, getting his full
pension), after referring to his own influence in
the office and .instancing two cases in which by
that influence increased pensions had been ob-
tained, proceeded to intimate that anything
might be effected by tCar.ramai, and on the
overture being rejected, concluded by declaring
that A. would " rue and repent it" -.—Held, that
the offence of attempting to obtain a bribe was
consummated. Empress f. Baldeo Sahai.
Pearson and Oldfield, JJ...I. L. Bop. 8 All.
208.
S. C. under Practice— Criminal. 1.
ATTESTATION OF CONFESSION
WHEN UNNECESSARY.
See Evidence. 16.
And see Criminal Procedure Code,
Act X of 1870, i 846.
Chummah Shah... I. L. Rep- 8
0*1.760.
ATTESTATION OF MORTGAGE DEED
BY PRIOR MORTGAGEE.
See Conetructive Fraud.
S A LA MAT All p. BUDH SIKOH...I.
L. Rep. 1 AIL 803.
ATTESTATION OF VILLAGE ADMIN-
ISTRATION PAPER OR W AJIB.
UL-ARZ BY LESSEE.
Sec Pre-emption. 10.
ChaDami Lai. o. MuhaMAdBakSh.
I. L.Kop. 1 All. 063.
ATTESTATION OF WILL -Of Hindu.
See Hindu Law- Will. B.
Radhabai *. Gakhsj[...I. L. Rep.
8 Bom. 7.
— — Signature necessary — Mark insufficient.
See Indian Succession Act X. of
1866, t 60, CI. 3.
Fernandez tr-ALVES... I. L.Rep.
8 Bom. 382.
Act X. of 1865, i Jo— Form of Attestation-
Hindu Will.'] By the Indian Succession Act X.
of 1865, ( 50, no particular form of attestation is
required ; therefore, where toa|document purport-
ing to be her last will and testament the name
of the testatrix was written by A., and the tes-
tatrix in his presence affiled her mark, and A.,
r presence wrote beneath it "by the pen of
A.-," and the testatrix was then identified to the
Registrar, who was present, by B., who had seen
her affix her mark to the will, and who in her
presence put his signature as having identified
her:-
Hetd, a sufficient attestation, and probate wa»
granted. In the Goods of Roymonev Dossbe.
/'hear, J I. L. Rep. 1 Cal. 160, 1876,
ATTORNEY AND CLEENT-Bill of Costa
— Limitation.
See Limitation. 67.
Hearn v. Bapu Nairin I. L.
Rep. 1 Bom. 606.
Bill of Costs— Right to tax after Declining.
See Attorney and Client. 8.
See Privileged Communication. 2.
MemoN HajI v. Molvi Abdul, ..I.
L. Rep. 3 Bom. 01.
- Fiduciary Relationship.
See Attorney and Client. 1.
D,gltlzed by G00gle
DIGEST OF CASES
ATTORNEY AND CLIENT— contd.
Lien for Costs.
See Mortgage. 38,
BftljNATH r. JlfGGERNATH ... 1, 1.
Bep. 4 Cal. 742.
1. — — Application under Rule 149 of the
Oomtnon Law Rules of the Supreme Court —
Limitation — Suit.'} An application by an attor-
ney, under Rule 149 of the Common Law Rules
of the late Supreme Court, that his client should
show cause why he should not pay the balance
due on the allocatur of the Taxing Master, and
why, in default of such payment, attachment
should not Issue against the person and property
of the client, is not a " suit " within the meaning
of Act IX. of 1871. There is no limitation- ap-
plicable to such an application. Abba Haji
Jshuail v. Abba Thara. Bayley, J...L L. Bep.
1 Bom. 263, 1876.
Weitropp, C.J., and Sargent, J., said. On an
application by the defendant to reverse this de-
cision, that they considered the order of Bayley,
J., "perfectly right."
fl. Fiduciary Relationship— Compound
Interest — Rate of Interest^ The plaintiff, an
attorney of the High Court, made advances to
the defendant, a native banker and merchant,
for whom he had been, and then was, acting as
attorney in certain litigation in the High Court.
At the time of the first advance, the defendant
was in difficulties about money; and one credi-
tor had issued execution against his property.
The plaintiffs firm had also an unsettled claim
against the defendant for costs for upwards
of Rs. 33,000, but for which they had not up
to that time delivered any bills of costs. Before
the first loan the plaintiff made out and de-
livered bills for all his costs due up to that
time, in all forty-six bills of costs ; and also a
general account showing what was then .due
for costs. The plaintiff offered to tax such
of the bills as were taxable, but the defendant
said there was no necessity for it, as the costs of
taxation would only increase his expenses. The
plaintiff then advanced Rs. 34,000, out of which
the defendant discharged a number of his debts,
including the plaintiffs costs, the larger portion
of which had been incurred in suits then com-
pleted, but some portion were costs incurred in
pending suits. The defendant executed a mort-
gage to the plaintiff in 1869, by which the prin-
cipal sum of Rs. 34,000 was made repayable in
■871, and the interest thereon was fixed at 13
ATTORNEY AND CLIENT— amid.
percent, per annum, payable quarterly. Com-
pound interest was also to be charged on all
interest in arrear at the rate of Rs. 11 per cent.
The plaintiff made a further advance of Rs.
2,546 in September 1870, and a further mortgage
was executed by the defendant for Rs. 41,000,
i. e., the original Rs. 34,000, the interest thereon
up to that date and the further advance, — upon
the same terms as to interest as were contained
in the first mortgage. Further advances were
made in the same way in October 1S71 and March
1S76, and similar mortgages executed by the
defendant, alt of which were prepared in the
plaintiff's office, but were not charged for. It
was admitted that in all these transactions the
defendant had no independent professional
advice. The plaintiff was the defendant's
general professional adviser, until the time of
the present suit which he instituted, asking for
a sale of the mortgaged property to satisfy his
claims. The plaintiff abandoned any accumu-
lations of interest since the date of the third
mortgage : —
Held, that having regard to the relation be-
tween the parties and the circumstances of the
case, the defendant had not lost his right to
have the plaintiff's bills of costs taxed and the
account re-opened by reason of his refusal of
the plaintiff's offer to tax in 1809, notwithstand-
ing the delay that had taken place since the
bills were delivered. Under the circumstances
the Court would not infer acquiescence from
that delay, nor would the bare offer by the
plaintiff to have the bills taxed, and the defend-
ant's rejection of that offer, deprive the latter of
that right which he originally had to have the
bills taxed.
Held also, that there is no rule which prevents
an attorney from taking security or otherwise
arranging with his client for the payment of
costs which have actually become due, or from
agreeing for any fair amount of interest in
making such an arrangement, and that the plain-
tiff was entitled to a sale of the property, to
accumulations of interest prior to the date of
the third mortgage, — calculated by allowing
annual rests, — to interest at 10 per cent., as
being a fair rate for the client to have under-
taken to pay when the mortgages were execu-
ted, and to interest on his costs. Mgnohur
Doss e. RomonautH Law. Garth, C.J., and
Markby, J I. L. Bep. 3 Cal. 478, 1887.
D,gltlzed by G00gle
DIGEST OF CASES.
( 1TO )
AUCTION PURCHASER AT EXECU-
TION SALE— Apical by— from Order
setting aside Sale.
St* Appeal— CiviL 22.
Gopal Singh v. Dulak Kuab...
L L. Rep. 2 AIL 362-
Assignment by.
See Hindu Law— Sale of Land. 1.
See Salt) in Execution of Decree. 1.
Govind s. GoviND...L L. Rep. 1
Bom. 000.
Right of — to enhance Rent.
See Bengal Reg. XLIV. of 1793>
JO.
MoilINY V. ICHAMOYEB L L.
Sep. 4 Cal. 012.
AUCTION PURCHASER AT BALE UN-
DER BENG. BEG. vm, OF 1819—
Onus Probandi in Suit against— for Re-
Sec Onoe Probandi. 3.
Arfunnhssa «. Peaky Mohun...I.
L. Sep. 1 Cal. 378.
AUTHORITY TO ADOPT GRANTED
BT A HINOR-Beng. Reg. X. of
"793. 3 33-
See Hindu Law— Adoption. 10.
Jauoona Dassya e. Bamasoon-
i>EBAi...L.Rep.3I.A.72;
L L. Rep. 1 Cal. 289.
AUTHORITY OP AGENT-To Bind Prin.
cip.il by Compounding Criminal Charge
against Agent.
See Durese.
MoUNG SilOAY A IT V. KO ByAW...
L. Rep. 8 L A 61 ; I. L.
Rep. 1 Cal. 330.
AUTHORITY OF CASTE TO DECLARE
■CARRIAGE VOID.
Set Penal Code, { 494.
Reg. *■ Sambhu.-.L L. Rep. 1
Bom. 847.
AUTHORITY OF LESSEE TO BIND '
OWNER BY ATTESTING VIL-
LAGE ADMINISTRATION
PAPER.
Set Pre-emption. 10.
Chad ami Lall v. Muhammad
Bak3h...I. L. Kep. 1 AIL
AVOIDANCE OF CONTRACT— Duress.
See Duress.
Moling Shoay Att ». Ko ByAW...
L. Rep. 3 L A. 61 ; L L.
Rep. 1 Cal. 880.
AWARD— Appeal from Order directing the
Filing of an.
See Appeal— CiviL 18. 18a.
HuSSAlNlBlBIV. MOHSIN KiiAN...
I. L. Rep. 1 All. 166.
IUUADHIN V. MAHESK...I. L.
Rep. 2 AIL 471.
See Arbitration. 4. 6.
Boonjad Mathoor v. Nathoo
Shahoo.,.1. L. Rep. 8 Cal.
375.
Vishnu v. Ravji... I. Xi. Rep. 8
' Bom. 16.
— Application to File an — Course to be pur.
sued when Reference to Arbitration
See Appeal— Civil. 18.
And see Arbitration. 0.
Hussaini Blri o. MoHsin Khan..
I. L. Rep. 1 AIL 166.
— Application to File— Jurisdiction.
See Suit for Land. 3.
KttLiE 0. Fraser.,.1, L. Rep. 2
CaL446.
— Application to File — Setting aside Award —
Acquiescence in Proceedings of Avbitia
See Arbitration. 7.
ChOWDHKI MlJRTAZA «. MlJSST.
Bin Bechunnissa...L. Rep. 3
L A 209.
— Of Arbitrators made without Intervention
of Court— Decree— Appeal.
See Arbitration. 4. 6.
Book] ad Mathoor v. Nathoo
SHAH00...L L. Rep. 3 CaL
875.
Vishnu v. Ravji X. L. Rep. 3
Bom. 18.
— Finality and Validity of.
Sec Arbitration. 4.
Boonjad e- Nathoo.. .L L. Rep.
8 CaL 376.
— Refusal to confirm an — Appeal.
See Appeal— CiviL 34.
Howard ». Wilson... I. L. Rep.
4 Cal. 231.
D,gltlzed by G00gle
DIGEST OF CASES.
AWABD- eontd.
Remission of— not Illegal on its Face — for
Reconsideration.
See Arbitration. 3.
Nsnah Chand v. Rah Narrayaw.
L L. Rep. 2 All. 181.
•— Validity of — fonnded on Evidence taken
on Oath illegally administered.
See Oaths' Act X. of 1873, ff 8,
10, 13.
Wali-ul-la v. Ghulaii Au.„L L.
Hop. 1 AIL 536.
— Subordinate Judge— Power of, iofde A-mard
—Small Cause Court—Act X. of 1877, j 525,] A
Subordinate Judge, though invested with the
jurisdiction of a Court of Small Causes, does not,
by exercising it, become on that account a Judge
of a Court of Small Causes, or his Court such
a Court, within the meaning of the Civil Proce.
dure Code (Act X. of 1877). Awards, therefore,
of any amount within the ordinary pecuniary
jurisdiction of a Subordinate Judge may properly
be received and filed by him under J 515 of Act
X. of 1877, even where a Small Cause Court
exists, the exercise of whose jurlsdict!
eludes for some purposes the jurisdiction of the
Subordinate Judge, because the jurisdi
the Small Cause Court is, as to such a
excluded. Balkrishna v. Lakshwan. West
and Pinhey, JJ L L. Sep. 8 Bom.
S19, 1879.
BAIL — Convicted Person — Power of Sessions
Judge to admit to — where no Appeal
Sec Criminal Procedure Code, Act
X. of 1872, §890.1.
Reo. v. Thakur Parshad...I. L.
Sep. 1 AIL 151.
BALAHBH ATT A— Authority of.
See Hindu Law— Authority of
Writers. 5.
MORARJI GOKALDAS B. PaRVATI-
bai L If. Bep. 1 Bom.
177.
BALANCE OF ACCOUNT— Bond to secure.
See Bond to secure Balance of Ac-
NAKKAYAH V. MOTILAL...L I..
Bep. I Bom. 45.
•— — Suit for — Jurisdiction of Mofussil Small
Cause Court.
See Small CauBeCourt— Mofussil. 7.
DYBBUKEB V. MUDHOO...I. L.
Bep. 1 Cal. 128.
BALANCE OBDBB
See Company — Winding up— Con-
tributory.
The London, Bombay, and ME-
DITERRANEAN BAKK *. BHAN-
JI ZUTANI...I. L. Bep. 9
Bom. 118.
B ALTJT A— Su.it for— Small Cause Court— Ju-
risdiction.] A suit to recover Baiuta leviable on
(he crops of village lands is not a suit for an
interest in land, but for a share in produce sever-
ed from the land, and is cognizable by a
Mofussil Small Cause Court. Nahu Pira v.
NarO SmDDESHVAR. West *nd Pinkey, JJ...L
L. Bep. 8 Bom. 28, 1978.
BANDHUS.
See Hindu Law — Inheritance-
Father's Bister's Bon.
Thakoor Jeebnath it. Court ok
Wards. ..L. Bep. 2 L A.
183.
BANE MEMORANDUM ADVXSINO
RECEIPT OF HONEY FOB CUS-
TODIER'S ACCOUNT FROM
THIRD PEBSON — Requires no
See Stamp. 8.
In the matter of Act XVIII. op
1869, andofTHE Uncovenan-
ted Service Bank I. L,
Bep. 4 Cal. 828 ; 8 Cal.
Bep. 597.
BANKRUPTCY OF ACCEFTOB OF
HUNDI.
See Procedure— Civil. 1.
Basant Ram v. Kolahal..,I. L.
Bep. 1 All. 382.
See Kistbandi.
Hbera Lall Mookhopadhya v.
Dhunput S1N0H...L L. Rep.
4 Cal. BOO.
See Limitation. 43. 44.
Kally P. Hazra •, Hurra Lall.
L L. Bop. 2 CsJ. 488.
Mungol P. DiCHIT *. Shama K.
L. Chowomrv ... L L. Bep.
4 0aL70a
D.gmzed by GoOgle
( in )
DIGEST OF CASES.
mm PTJBCHASS.
See Civil Procedure Code, Act
vm. of 1869, i aeo. 1. s. 8.
LokBEb Narrain e. Kalvpuddo...
X. Rep. a I. A. 164.
PuranMalv. Au Khan... I. L.
Bep. 1 AIL 93S.
Jan Muhammad v. Ilahi Baksh...
I. L. Rep. 1 AIL 290.
BENCH 07 MAGISTRATES- .Jurisdiction
of.
See Criminal Procedure Code, Act
X. of 1872, ( 630, 5.
.Sufferuddin *. Ibrahim... I. L.
Bep. 3. Oftl. 764.
BBHOAX ACT HL OF 1804— Public High-
nays — Ptmer of Municipal Commissioner to close
wdivert—1 Bengal Act III. of 1864, which
public highways in Municipal Commissioners
(or the purposes of the Act does not by so vest-
ing; them give power to the Municipal Commis-
sioners, nor d fortiori to the Vice-Chairman
alone, to stop up or divert such public highways.
En mi ess it. Peojonath Dey. Markby and Prt\
ttp, )}...., I. L. Bep. 2 CaL 426, 1877.
&*Fazal Haq g. Maha Chand...I. L,
Bep. 1 AU. 667.
Under Bight to sue. 4.
— f 33 — Appeal against Assessment by Muni'
ripoJ Commissioner.'] A suit to set aside an ordet
madeon appeal under (33 of Beng. Act III. of 1864
to the Municipal Commissioners againsj a r;
assessment, and to reduce the tax levied by them
under that Act, on the ground that they have
tried the appeal in an improper way, and have
exceeded their powers and acted contrary to the
provisions of the Act, cannot be maintained in
the Civil Courts. The decision of the Commis-
sioners in such appeal is absolutely final. Ma.
hbssub Dass e. The Collector and Munici-
pal Commissioners of Chafra. Garth, C.}.
and Mitttr, J...I. L. Bep. 1 CaL 409, 1876.
BEBTOAX ACT IX OP 1867— H 5 and 6—
Unauthorized Entry and Arrest of Gam-
biers — Direct Evidence of House being
Gaming-house.
See Gambling. I.
Nazir Khan *. Proladh Dutta.
L L. Bep. 4 CaL 669
BENGAL ACT II. OP ism-contd.
■ ' ff S ar"l 6 — Gambling — Gaming-house —
Evidence — Unauthorized Entry and At-
See Gambling. 3.
Sreram Chandra n.BipiHDA3S...X.
L. Bep. 4. CaL 710.
BENGAL ACT VII. OF 1863.
See Certificate Proceedings under
Bengal Act VUL of 1809.
Hem Lotta b. SrbedhoneBorooa.
L L. Bep. 8 CaL 771.
BENGAL ACT VI1X OP I860— Holdings not
liable to enhancement (Guzashta Kasht) — Suit
far Removal of Buildings.'} A ryot who relies
upon an occupancy right must be taken as there-
by admitting that the letting was of such a cha-
racter as is contemplated by Bengal Act VIII.
of 1S69, which applies only to agricultural hold-
ings. If land is let on the understanding that
it is to be used for cultivation, the fact that the
ryot has acquired a right of occupancy does not
alter any of the terms of the letting, except the
conditions (if any} fixing a term for the tenancy.
The statutory right of occupancy cannot be
extended so as to make it include complete
dominion over the land, subject only to the pay-
ment of a rent liable to be enhanced on certain
conditions. The landlord is still entitled to
insist that the land shall be used for the pur-
poses for which it was granted, and although a
liberal construction may be adopted, it cannot
extend to a complete change in the mode of
enjoyment- Lal Sahoov. Dev Naraih Singh
Ainslie and McDonnell, JJ ...I. L. Bop. S CaL
781 ; 9 CaL Bep. 294, 1978.
Set Landlord and Tenant. S.
—- i 4— Right of Purchaser at Revenue Sale
to enhance Rent — Presumption in favour
of Mokurari Tenure.
See Enhancement of Bent. L
Purmanund ». Rookinee.-.I. I*.
Bep. 4 CaL 798.
— j 14— Notice of Enhancement.
See Enhancement of Bent. 8.
Ekram Mundul v. Holodhur
Pal...L L. Bep. 8 CaL STL
— ■ f 14— Service of Notice tf Enhancement of
Rent — Joint Hindu Family.'] Where a joint
Hindu family owns a tenure, it Is sufficient
service of notice of enhancement of rent, under
Bengal Act VIII. of 1869, if any one of the co-
V Google
DIGEST OF CASES.
BENGAL ACT TOL OP 1869-contd.
sharers is served with the notice. Nobodkep
Chundkk SHAHA v. Sonaram Dass. Xilter
and Maclean, JJ I. L. Bep. 4 Cal. 592 ; 8
Oal. Hep. 359, 1878.
— i 14 — 3. Stipulation in Potta for Increase
of Rental to be made yearly — Suit la recover Rent
taper Potta — Notice of Enhancement."] Whei
a potta in its terms expressly stipulates for a
increase of rental according as the lands let ai
brought under cultivation, and a measuremei
taken, a landlord is entitled to recover sue
increased rent as agreed upon in thefiotta wit!
out serving on the tenants any notice under f 14
of Bengal Act VIII. of 1869. Nistarik Dasj
v. Bonohali Chattkkji X. L. Rep. 4 Ceil.
941; 4 Cal. Rep. 378, 1879, V, B.
See Enhancement of Bent. 8.
Ekbah Mundul s. Holodhur
Pal...L L. Sep. 8 Cal. 371.
1 "{ 1 7 — Right of Purchaser at Revenue Sale
to enhance Rent — Presumption in favour
of MoHurari Tenures.
See Enhancement of Bent. 1.
PuEMANUND '•!. RoOKINEE...!. L.
Bep. 4 Oal. 783.
if 21 and 52— Ejectment—Arrears of Rent
— Bhaoli Rent— Compensation for QccupatU,
Land — Decree.'] Under the provisions of Bengal
Act VIII. of 1865, a suit will lie for ejectment
on non-payment of arrears of rent due on a bhaoli
tenure, §§ 2 and 21 and 52 covering not only
rent reserved in money, but rent reserved in
kind. A suit to recover compensation for the
use and occupation of land is not a suit for
arrears of rent due under § 52 of Bengal Act
VIII. of i860. Where the decree under that
section (by which the defendant was directed
to pay a certain amount as arrears of rent within
15 days, otherwise he was to be ejected) com-
prised a sum found due for such compensation : —
Held, that the whole decree was vitiated. The
tenant is to be ejected, under ( 52 of Bengal
Act VIII. of 1869, if he does not pay the amount
of rent specified in the decree. But the amount
specified in the decree must consist entirely of
rent due. And if it turns out that there was not
really so much arrears of rent due, the tenant
never has had the opportunity, which the law
gives him, to pay within 15 days that which
he is liable to pay as arrears of rent. Kishen
Gofaul Mawar e. Barnes, Marhby and Prin-\
tep, jj....„ I. L. Bep. 2 Cal. 374, 1877. [
BENGAL ACT VHX OF 1869— roxA*.
— § 27 — 1. Ejectment, Suit for— Limitation
■Suit for Possession on Declaration of Title.]
The only remedy for a person in the position of
an occupancy ryot, who alleges that be has been
ejected in contravention of the proviso to i 2a,
Bengal Act VIII. of 1S60, is a suit on the ground
of the illegal ejectment, and such suit must,
ider ( 27, Bengal Act VIII. of 1869, be brought
within one year from the ejectment. Golabo-
lee v. Kootosbollah SihcAr. Milter and
Maclean, JJ I. L, Bep. 4 CaL 937, 1878.
( 27 — 3. Limitation — Suit for Possession
with Mesne Profits— Howla Rights— Title.] A suit
for possession of certain lands " by establishing
the plaintiff's hernia right," and for mesne profits,
brought against a shareholder of the talook in
which the lands are situated, (and who denies
the existence of the alleged honla right), a
former talookdar, and certain ryots who paid
rent to the first defendant, is not a suit to re-
cover the occupancy of Ihp land from which the
plaintiff has been illegally ejected by the person
entitled to receive the rent, within the meaning
oE Beng. Act VIII. of 1869, j 27, and is not
governed by the limitation provided by that
Khajah Ashanoollah u. Ramdhone
BhuTTACHaRJEE. Jackson And. McDonnell, JJ...
I. L. Bep. 1 Cal. 33S, 1876.
§ 2p, — Suit for Arrears of Rent — Expira-
tion of three years during Vacation —
Plaint presented on Re-opening of Court
— Suit barred.
See Limitation. 13.
Purran Chunder «. Mutty Lall.
L L.|Bep. 4 Cal. SO.
§29— Suit for Rent — Limitation not pre-
vented from running against — by Land-
lord's Denial of Tenancy, and Suit to
See Limitation. 4.
And Bee Judicata. 18.
Watson & Co. ». Dkonendra...
I. L. Bep, 3 Cal. 0.
§ 29 — Suit for Arrears of Rent — Limita-
tion— Deduction of Time occupied in
Unsuccessful Enhancement Suit not
allowed.
See Limitation. 9.
BbiOJENDROO. RAKHAlChUHOER...
I. L. Bep. 3 Cal. 791.
Digitized byGOO^Ie
DIGEST OF CASES.
BENGAL ACT VIII OF I6WB— «***.
5 a9 — Suit for Arrears of Rent— Limitation
— Deduction of Time occupied in Un-
successful Suit for filial Possession not
allowed.
See Limitation. 10.
Huero Proshadt. Gopaul Dass.
L L. Eep. 3 Cat 917.
— ~ S 39— 1. Limitation — Computation of
Time according to English Calendar?] Held,
in accordance with former decisions of the
High Court, that for the purpose of computing
the period of limitation prescribed by § 29 of
Bengal Act VIII. of 1S69, the calculation is to
be made according to the English Calendar.
Mahomed Elahee Baksh v. Brojokishore
Sen, Milter and Maclean,].] I. L. Hop. 4
Cal. 407, 1878.
— § 31—Suitfor Arrears of Rent— Payment
into Court— Limitation."] By a condition in the
lease of a talook, additional rent became payable
in respect of all lands which, not being in a
state of cultivation at the time of the lease,
should be subsequently brought into cultivation,
so soon as the lessee had enjoyed them rent-
free for the space of seven years.
Rent having become due under this condition
on certain lands which had not been in a state
of cultivation at the time of the making of the
lease, the lessee deposited in Court, as the
entire rent payable in respect of the talook, the
same amount as he had paid in previous years.
In a suit brought a year after the lessor had
notice of such deposit, to recover the entire rent
payable in respect of the lands newly brought
into cultivation : —
Held, that such suit having been instituted
more than six months after service of notice of
such deposit on the lessor, was barred under
i 31 of Bengal Act VIII. of 1869. Ram Suhker
Ssnaputty b. Bir Chunder Manikya, Jack,
ion and Tottenham, |J IL. Rap. 4 Cal.
714, 1878.
__ | j8 — Application for Execution of Decree
for Arrears of Rent— Limitation— Circular Order,
tilth July 1874.] The words " no process of
execution of any description whatsoever shall
be issued on a judgment in any suit * * after
the lapse of three years," in $ 58 of Beng. Act
VIII. of 1E69, mean, that execution shall not
issue unless a proper application for execution
BENGAL ACT VUL OF 1889— contd.
made within three years from the date of the
judgment. Therefore where, on an application
made on the 5th July 18/5 for execution of
decree for arrears of rent obtained on the 31st
of Jannary 1873, a warrant for the arrest of the
judgment debtors was issued, but not executed,
subsequent application for execution of the
me decree made on the 17th March 1S76, was
held not to be barred. The law as laid down in
Rhiday Krishna Chose v. Khailas Chandra Base (4
Jeng. L. Rep. F. B. 8a ; 13 W- Rep. F. B, 3) is
iot affected by the Circular Order No. 18 of the
lOthJuly 1874- GOLOKEHONBY DABIA tr. MOHESH
Chunder Mosa. Starl6y and if titer, JJ. ...L
L. Rep. 8 Cal. 647, 1877.
§5 59, <5°i 6ti — Sale of Under-Tenure —
Right of Purchaser.
See Execution of Decree. 8.
Doolar Chand v. Lalla Cha-
beet. L. Hep. 6 I. A. 47.
5 6t — Under-Tenure— Arrears— Sale in
Execution — Execution against other Property?]
The plaintiff obtained two decrees againt one
B. ; the first an ordinary money-decree, the
other a decree for the rent of certain tenures,
(ecution of the money decree, the plaintiff
sold n. 's right, title and interest in the tenures
and afterwards in execution of his decree for
again put up the same tenure for sale. At
this sale, the defendant became the purchaser of
whatever could pass under such sale. The plain-
tiff subsequently sued and obtained a decree
against the defendant for arrears of rent due on
the said tenures since the last-mentioned sale,
and attached the tenures in execution of that
decree. Third parties intervening, the tenures
released from attachment ; and the plain.
tiff then sought to levy execution on other im-
moveable property of the defendant : —
Held, that the tenures not having been sold,
but having been released from attachment, the
plaintiff was not entitled to proceed to execution
against any other immoveable property of the
defendant, under f 01 of Beng. Act VIII. of i860,
it being open to him to show by a regular suit
that the tenures were liable to be sold in execu-
tion of his decree, and further, that upon the
facts of the case the plaintiff was not entitled to
the equitable relief he sought. Whatever may
be the rights of a zemindar holding a decree for
rent against one of his tenants in respect of the
sale of the tenure on which the arrears have
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( ira )
DIGEST OF CASES.
< 1» )
bengal act vm or lses-aww.
accrued, when such rights ate put forward in
opposition to the tights of third patties, it is
impossible fat any zemindar to put forward a
claim under the rent law Which shall take effect
against his own acts done, as in the present
case, under the Civil Procedure Code. Harrish
ChunDer Roy v. Thb Collector of Jessore.
Ainslie and Morris, JJ...L L, Rep. 3 Cat 713,
1878.
— f 66- -Growing Crops— Sal? of Vndtr-Te-
nitre.'] At a sale of an under- tenure for arrears
of rent under ( 66 of Bengal Act VIII. of 186a,
the growing crop standing on the land passes to
the purchaser at the auction. sale, unless it has
been specially excepted by the notification of
sale, or a custom to the contrary has been
proved. AfatoolLa Sirdar v. DwarkAnath
MoiTrY. Jackson and McDonnell, J] L L<
Hep. 4 Cal. 814 ; 4 Cal, Rap. SB, 1879.
f 98— Suit fir Value of Crops— Distraint—
Jurisdiction — Small Causa Court."] The defend-
ant distrained certain crops belonging to the
plaintiff, Who subsequently complained to a Ma-
gistrate against the defendant, bis landlord, for
forcibly carrying away his crops; Whereupon the
defendant was tried, and convicted of theft, and
punished. The plaintiff then instituted a suit
in the MunsifT s Court, apparently under f 95 of
Bengal Act VIII. of 1669, and obtained a decree
declaring the distraint to be illegal, and direct-
ing the crops to be given' up to him. The
defendant offered to give up a smaller quantity
than was mentioned in the decree. The plaintiff
refused to take the same, and brought a sui
the Small Cause Court to recover the value of
the quantity he claimed before the Munsiff, and
something additional: —
Held, that the Small Cause Court had no juris,
diction, and that the suit ought to have been
brought under ( 08 of Bengal Act VIII- of i86y.
Hvder Ali v J afar Au. Garth, C. J., and Mac.
fkerson, J 1 L. Sep. 1 CaL 183, 1870.
1 Suit for Rent
See Appeal— Civil. 39.
LlJNOESSUK KoEE *. SoOKHA
OJHA...L L, Rep, 8 Cal'
151 ;1 Cal. Rep. 30.
BENGAL CIVIL COURTS' ACT VI. OP
1871.
Sm Appeal-Civil. 8.
RUNjlT Sinoh v. MehKrban Roer.
L L. Rep. 3 CaL 662.
■ ( 21 —Jurisdiction — Subject-matter in Dis-
pute—Suii for Cancellation of a Bond-'] The plain,
tiffs sued for the cancellation of a bond for the
payment of Rs. 6,000, with interest at the rate of
four pet cent pet mensem, alleging that they
bad executed such bond under the impression
that it was a bond for the payment of Rs. 3,000
with interest at the rate of one and a half per
cent, per mensem, whereas the defendants had
fraudulently caused them to execute the bond
in suit. The plaintiffs paid into Court Rs. 3,000
together with interest at the rate of one and a
half per cent pet mensem ;—
Held, that the value of the subjcct-i natter in
dispute, was the difference between Rs. 3,000
and Rs. 6,000, or thereabouts, and therefore
that an appeal from tbe Court of first instance
preferred to the District Judge, was cognizable by
him. Kali Charas Rai a. Ajudhia Ral,
Pearson and Oidficld, J] I. L. Rap. 8 All
148, 1B79-
BENGAL ACT X 07 1871.
See Road Can Act (Bengal Act X.)
of 1871.
BENGAL REGULATION VHX OF
1793-i 5<-
See' Ghatwali Tenure.
Leelanund Sikoh v. Tkakoor
Munrunjun...!. L. Rep. 8
Cal. 861.
See Enhancement of Rent. 3.
HlTRROHATH n. GoBIND ChUNDBI.
L. Rap. SLA. 198 ; 10
Bang. L. R. ISO ; 88 W. B.
808.
Set Enhancement of Rent. 6.
Na Money v. Chunderkaht...L
L. Rep. 8 CaL ISO,
D,gltlzed by G00gle
DIGEST OF CASES.
( 182 )
BENGAL REGULATION X. OF 1793-
t 33 — Minor — Authority to adopt.
See Hindu Law—Adoption. 10.
L. Sep. 3. I. A. 73 ; I. L.
Rep. 1 Cal. 289.
BENGAL REGULATION XI. OP 1793—
Effect of — on Family Custom.
See Family Custom.
Rajkishent. Ramjov...I. L. Hop.
1 Cal. 186 ; 19 W. R. 8.
BENGAL REGULATION XV. OF 1793—
S§ 2 and 3-
See Interest. 3.
Raja Barda Kant Rai v. Bhag-
wan Das.. I. LRep. 1 AIL
344.
BENGAL REGULATION XXVI. OF
1793— S 2— Minority.
See Mahomed an Law — Gift. 3.
L. Rep. 2 I. A. 87 ; 10
Bang. L. R. 87 ; 23 W. R.
306.
BENGAL REGULATION XLTV.OF 1793
— § 5— Enhancement of Rent—Auction Pur.
chaser, Right of] According to the decision of
the Privy Council in Ranee Surnomoyee v.
Maharajah Sullen Chundcr Roy Bahadoor (10
Moo. I. A, 123), the right of an auction pur-
chaser under § 5 of Bengal Regulation XLIV.
of 1793, is limited to raising the rent of a taluk
created by the defaulter to what is demandable
from it according to the parganna rates prevail-
ing either at the time when the taluk is created*
or at the time when the auction purchase takes
place. He cannot demand any higher rent,
even if at any subsequent time such higher rent
be in accordance with the prevailing current
rate. Mohinv Mohun Ror v. Ichamovee
DasSeEa. Hitter and Maclean, JJ...I. L. Rep.
4 Cal. 613, 1678.
See Enhancement of Rent. 2.
HtutftoNATH v- Gobjnd.L. Rep.
BENGAL REGULATION IV. OF 1797.
See Offence committed before the
Fenal Coda came into oper-
ation.
Empress o. Dil;ono Misser...I.
L. Sep. 3 Cal. 330.
Empress p. M ulna. ..I. L. Rep.
1 All. 699.
BENGAL REGULATION XVIL OF
1808-(}2and3.
See Interest. 3,
Raja Barda Kant v. Bhagwan
Das.L T..Kop. 1 AIL 344.
(8 — Foreclosure — Service of Notice —
Proof— Judge's Office Ministerial— Ad-
mission of Service by some of several
Mortgagors.
See mortgage. IS. 14.
NORENDEK B. DWARKA LAL...L.
Rep. OLA. 18; I. L.Sep.
3 Cal. 397.
Bank op Hindustan, China, and
Japans. Skoroshibla Debee.
I. L. Rep. 3 Cal. 81L
f 8—1. Mortgage— Foreclosure— Notice.]
Where land which has been conditionally sold,
is subsequently mortgaged, the second mort-
gagee, being the mortgagor's " legal representa-
tive," within the meaning of that term in f 8,
Bengal Reg. XVIII. of 1806, is entitled on fore-
closure proceedings being taken by the condi-
tional vendee to the notice required by that
section, and cannot be deprived by the condi-
tional vendee of the possession of the land, not-
withstanding foreclosure, where such notice has
not been given to him. Dirgaj Singh v. Debi
Sinoh. Stuart, C.j., and Turner, J... I. L. Rep.
1 AIL 499, 1877.
BENGAL REGULATION XX. 07 1813
— f 2, CI. 5 — Secondary Evidence
See Kahomedan Law— Gift. 3.
Ameeroonissa v. Abedoonissa...
L. Rep. 3 L A. 87; 10
Bang. L- R. 87 ; 33 W.
B. 303.
BENGAL REGULATION XIX. OF 1814.
See Partition by the Revenue
Authorities.
Sharat Chander t. Hargorindo.
I. L. Sep. 4 Cal. 010.
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(
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DIGEST OF CASES.
BENGAL BEGTJLATION VI. OF 1819-
§ 6. Disobedience of Order not to pi;
Boats near Public Ferry.
See Disobedience of Order of Public
Servant.
MlTTHRA*. JAWAHIR...I. L. Bep.
1 All. 627.
BENGAL REGULATION VUL OF 1819
— i 6— Appeal— Slat- 24 & 35 Vict, Ch. 104, $
15. J No appeal lies from a summary order of
the District Judge, passed under § 6 of Bengal
Regulation VIII. of 1819, directing the zemindar
to accept the security tendered and give effect
to the transfer without delay, though the Judge
may have used the word ' decree/ and drawn
up the order in the form of a decree directing
that an injunction should issue.
Per Birch, J. — A party who has preferred
appeal to the High Court where the law gives
him no appeal, is not entitled on the hearing
ask the Court to treat it as an application for
the exercise of its extraordinary jurisdiction
under § IS of Stat. 24 and 25 Vict., CI. 104.
In the matter of the Petition of SoORJA Kant
Ac H raj Chowdhrv. Birch and Morris, JJ...I.
L. Bop. 1 Cal. 883, 1878,
See Putni Talook.
Brindaban v. Brindaban...L.
Bep. 1 I. A. 178 ; 21 W.
B. 324 ; 13 Bang. L. R,
408.
. f 8— Service of Notice of Sale—Suit for
Beversal of Sale."] In a suit for the reversal of
a patni sale under Beng. Reg. VIII. of 1819,
was proved that the notice of sale was first stuck
up in the Cutcherry of the ijaradar (the Mehal
having been let out in ijara by the patnidar],
but the gomasta of the ijaradar having refused
to grant a receipt of the service of the notice
the peon who took it, it was taken down ai
subsequently personally served upon the plai
tiff, the patnidar, at his house, which was
some distance from the patni Mehal : —
Held, that the object of the provisions co
tained in § S of Beng. Reg. VIII. of 1819 rel;
ing to the service and publication of the notice
of sale, is, not only to give notice of the sale
the defaulter, but also to under-tenants, and
further to advertise the sale " on the spot" for
the information of the intending purchasers ;
and although the forms prescribed for the pub-
BENGAL REGULATION Vm. OF
1819— ceaM.
lication of the notice had not been strictly com-
plied with, yet the defects established by the
plaintiff in the manner of the publication of the
notice were not such as amounted to " a sufficient
plea" within the meaning of f 14 of Beng. Reg.
VIII. of 1819, for setting aside the sale. The
plaintiff did not allege that in consequence of
the defective publication of the notice there
was not a sufficient gathering of intending pur-
chasers at the time of sale ; nor did he complain
that bis under-tenants were ignorant of the
impending sale of the parent talook, and were
therefore prevented from depositing the arrears
of rent to stay the sale, nor was the Mehal sold
below its value. Goukee Lall Singh 0.
JoodhistEER HAJRAH. Glover and Mitter, ]]...
L L. Bep. 1 Cal. 369, 1878.
f 8, CI. 3— Substantial Persons— Service of
Notice of Sale— Material Mistatement in Petition
for Special Leave to appeal.'] In a suit to cancel
a sale of a putnee tenure under Reg VIII- of
1819, on the ground that the witnesses who at-
tested the due publication of notice were not
'* substantial persons" within the meaning o( f
8, CI. 2, of the Regulation 1 Held (reversing the
decree of the High Court), that a " substantial"
person does not necessarily mean a wealthy
person from whom damages could be recovered
by the putneedar, supposing the attestation to
be false. Wealth is only one element in the
position and status of the witness, and if he
lives in the neighbourhood and if he be a re-
spectable man of good character, on evidence
appearing of such facts, of which the Judge in
each case must satisfy himself, the judge, in
estimating the position of the man, may proper-
ly come to the conclusion that he is a substantial
person. Where it is proved that the notice of
sale has been actually served, the sale is not
vitiated merely because one of the witnesses to
the notice is held not to be substantial within the
meaning of the clause.
Sana Bebee v. Lallchand Ckomdry ( o. W. Rep.
242) approved.
It appearing that the petition on which special
leave to appeal had been granted contained a
material misstatement of fact, their Lordships
refused the costs of the appeal. There must be
uberrima jides on the part of those who come for
leave to appeal on special grounds, otherwise the
order granting it will be rescinded on application
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DIGEST OF CASES.
BENGAL REGULATION Tin. OP BENGAL REGULATION
181»-eoHtd. 1819— contd.
by the respondent at any time before the appeal
has been actually entered upon at their Lord-
ships' bar; but such objection ought to be taken
by the respondent as early as the matter is
brought to his notice, and it is wrong to leave the
objection until the hearing of the appeal, when
the record has been sent from India, and when
all the costs attending the hearing have been
incurred.
If such misstatement should appear, even at the
latest stage, to bavebeen made with the intention
to deceive, the appeal will be dismissed. Ram
Sabuk Bose v. Monmohini D05SKK...L. Hep. 2
I. A. 71 ; 14 Bang. L. B. 394 ;
33 W. B, 113, 1874.
i 8, CI. 2.-9. Notice of Sale-Publica.
lion — Proof of Service.'] Although the provision)
of { 8, CI. 2, of Bengal Reg. VIII. of 13ig, sped.
fying the manner in which service of notice ol
sale should be proved or verified, are merely
directory, it is, nevertheless, absolutely essen-
tial to the validity of a sale under that Regulation
that the notice should be served in strict compli-
ance with the directions given in the same clause
and section of the Regulation.
Gouree Loll Singh v. Joodkistir Hajrah (25 W.
Rep. 141) dissented front. Bhaqwan Chandrr
Dassb. Suddek Ally...! L. Bop. 4 Cal. 41;
2 Cal Bep. 367.
S 8, CI. 2.-3. Putni Tenure— Sale of for
Arrears of Rent— Date of Publication of Notice.'}
In a suit to set aside a sale of a putni tenure for
default In payment of rent, on the ground that
the notification of sale was not published befoi
tbe ijth Bysaclc, as required by CI. a of f 8 of
Bengal Regulation VIII. of iSlQ, it appeared
that the receipt for the service oE the notification
bore date the 13th of Bysack, and was signed by
four munduls of the village, in which the plain-
tiffs mil cutcherry was situated. The serving
peons deposed that they had served the notifi-
cation of sale on the holder of a four-annas
share on tbe 13th or 14th Bysack, and, failing
in the endeavours they made on that and the
following day to serve the plaintiff, they sent
for the munduls of the village, read the notice
to them, and affixed it on the cutcherry, and
obtained the receipt dated 15th Bysack. The
sale took place seventeen days afterwards ;—
Held, that the fact that the receipt of the
notice of the sale was dated 15th Bysack, and
did not show that the " notice had been publish,
ed at any time previous" to that date, was not a
sufficient ground for setting aside the sale-
Section 8, CI. 2, of Bengal Regulation VIII. oE
1819 provides that if it shall appear — i.e., appear
to the Collector— that the notice has been pub-
lished at any time previous to the 15th Bysack,
that shall be a sufficient warrant to proceed.
The receipt in question bore the signatures of
three substantial persons, which was to be ac-
cepted only in case of inability to procure the
receipt of the defaulter. It might well be that
the previous days had been spent in vain efforts
to procure the signatures of the putnidar or his
agents, and that the receipt was afterwards
completed by the signatures of the munduls
obtained on the 15th Bysaclc, and this. might
well have satisfied the Collector that the notice
had in fact been published previous to the 15th
Bysack. This being so, and no injury to the
plaintiff being made out, and the sale having
taken place two days after the time prescribed
by the Regulation, even assuming the publica-
tion of the notice to have taken place on the
1 5th Bysack, the Court refused to set aside the
It would be no " sufficient plea," within the
meaning of { 14 of the Regulation, or substan.
tial cause of complaint, that the receipt had been
obtained, or the notification published on, in-
stead of previous to the 15th Bysack. Matunoeh
Churn Mittkk v. Moorrary Mohun Ghosh.
Jackson and McDonnell, JJ..-L L. Bep. 1 Cal.
176, 1876.
i 14— "Sufficient Plea."
SeeiB; and J 8, CI. 9. 3. 3.
GOWREE LALL v. JOODHISTEKR...L
L. Bep. 1 Cal. 309.
Matunqbe v. Moorrary I. L.
Bep. 1 Cal. 176.
BENGAL REGULATION TIL OF 1839.
See Jamabandi.
Ta.ru PatuR«. ABIHASH CHVNDBX
Dun... I. L. Bep. 4 Cal. 79.
BENGAL REGULATION Tin. OF
1833— f 9, CI. 1— Suit for Declaration of
Zemindari Right to Cesses.
See Declaratory Decree. 8.
Akbar Khan v. Shkoratan I.
L. Bep. 1 All. 378-
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( :
)
DIGEST OF CASES.
BENGAL REGULATION XL OF 1826.
— ff a and 4, CI. I, 2.
See Accretion.
Rughoobur *. Maharajah Ki-
SHBN...L. Bep. 6 I. A. all.
BEQUEST TO A CHARITY WHICH
HAS CEASED TOKHST- -Residuary
Bequest to Charity — Cyprus.
See Will. 11.
Mayor of Lyons t. Advocate-Ge-
neral of Bengal. ..L. Bep'
S I. A. 32 ; I. L. Rep. 1
Cat. 303.
BEQUEST TO A CLASS— Some of whom
Dot in Existence at Testator's Death.
See Hindu Law Will. 4.
KHERODEMONEY v. DoORGAMONEY.
I. L. Sep. 4 Cal. 405.
See Limitation. 88.
Tree poor asoondery e. Deben-
DRONATH...I. L. Rep. 3 Cal.
46, p. S3-
Remoteness.
See Hindu Law— Will. 7.
SouriAMONEY tr. JoOESH ChUN-
DER...L L.Rep. a Cal. 263.
Residuary — Postponement of Period of Dis-
tribution.
SreWiU.4. 8.
Massyk c. Fercusson. L L. Rep.
4CaL304, 870.
BETROTHAL— Speci
See Injunction. 1.
Gum
Performance— H it
...I. L. Rep. lCal.
74.
HHAQDARI VILLAGE.
Sec Narvadari Village.
Veribhai v. Raghubhai...L L.
Rep. 1 Bom. 226.
— Attachment and Sale of Unrecognized Por-
tion of a Bkag .
See Bombay Act V. of 1862. 1. 3.
Ranchodass. Ranchodas...L L.
Sep. 1 Bom. 681
Ardasir v. Muse Ibid. 601.
— — Mortgage of Portion of a Bkag in.
See Bombay Act V. of 18SS. 1.
Ranchodas v. Ranchodas. ..I. L
Rep. 1 Bom. 681.
BHAG.JOTE TENURE.
See Bigot to roe. 9.
Hof.ro Nark a in «. S hood ha
Krishto..,!. L. Rep. 4 Cal.
880.
BH A0LI SENT — Arrears of — Suit for
Money Equivalent of.
See Act XVIII. of 1873, § 83. 1.
Tajuddin ». Ram Parskad...I.
L. Rep. 1 AIL 217.
1 Ejectment for Arrears of.
See Beng. Act VHX of 1889, §§ 21
and 63.
KlSHKN Goi-aulv. Barnes...L L.
Rep. 8 Cal. 374.
Enhancement of.
See Enhancement of Bent. 4.
Hanuman Parshad v. Kaulesar
Pandey...!. L. Rep. 1 All.
301.
BIGAMY.
See Attempt.
Reg. v. Peterson... I. L. Rep. 1
All. 316.
See Hindu Law — Inheritance-
Illegitimate Bon. 4. 5.
Rahi v. Govihd..,L L. Bep. 1
Bom. 97.
Narayan v- Laving. .. I. L. Bep.
a Bom. 140.
Abetment of.
See Abetment. 2.
Empress b. Abdool Kureem...L
L. Bep. 4 Cal. 10.
Teli Caste.
&<• Penal Code, J 494.
Reg. i\ Sambhu.,.1. L. Bep. 1
Bom. 347.
BILL OF COSTS— Limitation.
See Attorney and Client 1.
Abba Haji ». Abba Thara L
L. Rep. 1 Bom. 863.
See Limitation. 67.
Hearn o. Bapu Naikin I. L.
Rep. 1 Bom. BOH.
- Right to tax after Declining— Acquiescence.
See Attorney and Client. 2-
MOKOHOR DOSS 0. ROMONAUTK
LAw...I,L.Rep.3Cal-473.
Digitized byGOO^Ie
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DIGEST OF CASES.
BILL OF EXCHANGE.
Accommodation Acceptance — Receipt of
consideration from Drawer.
51m Principal and Buret;. 4.
Pogose ii. Bank of Bengal...!.
L. Bop. 3 Cal. 174.
Bankruptcy of Acceptor — Suit against
Drawer and Acceptor residing within
Jurisdiction of different Courts.
See Procedure— Civil. 1.
Basant Ram v. Kolahal.X L.
Kep. 1 Alt 392.
— Drawn in Foreign Territory by British
Subject neither Resident nor Domiciled
therein in favour of Creditor resident in
Foreign Territory — jurisdiction of
Foreign Court.
.See Jurisdiction. 7.
Mathappa v. Chellappa,..L
L. Rep. 1 Had. 196.
— Power of Directors to bind Company by.
See Power of Directors to bind Com-
puny by Bill of Exchange.
The New Fleming S. & W. Co-
(Limited). ..I. L. Rep. 3
Bom. 439.
BILL OP LADING— Exception in— Lass by
Fire.] Under the terms of a bill of lading,
" goods -mere to be delivered from the skip's tackle
qi fast as the steamer could discharge, failing
■akich the steamer's agents were to be at liberty
to land the goods at their godovn" ; the bill of
lading further amongst other exceptions, provid-
ed that shipowners should "not to be liable for
loss by fire."
The steamer, on arriving at the port of dis-
charge, came alongside the wharf, and commen.
ced unloading at the Custom-house godowns
without giving the consignees the option of
landing the goods from the ship's tackle. The
consignees, however, did not object to the goods
being landed at the Custom-house godowns, and
they also paid, without objection, a sum for
wharfage of a part of the goods in the godowns.
The goods while in the godowns were destroyed
by Ere, but, without any default on the part of
the shipowners : —
Held, that either the placing the goods in the
godowns was a part of the shipowners' duty
under the contract of carriage, in which case
BILL OF UkJOntQ-cvnid.
they were protected under the exception in the
bill of lading, providing against loss by fire, as
much as if the fire had occurred on boardship ;
or when the goods were placed in the godown
with the consent of the owners of the goods,
the shipowners had charge of them as wharf-
inger (which was the view the Court was
disposed to take of their true position) ; and in
that case the goods having been destroyed by
fire without any default on the part of the
shipowners, the latter were not responsible.
Chin Hong & Co. v. Seng Mok & Co. Garth,
C. J., and Pentifex, J....I. L. Rep. 4 Cal. 786 ;
3 Cal Rep. 585, 1879.
BLBT TENURES— Purchase of-by Mori-
gagee — Right of Mortgagor to redeem.
See Mortgage. 15.
Rajah Kisnbndatt v. Rajah
Mumtaz L. Rep. 6 I.
A. 146.
BLINDNESS— To Exclude from Inheritance
must be Congenital.
Set Hindu Law— Disqualification
to Inherit. 1. 2.
Mukakji v. Parvatibai I. L.
Rep. 1 Bern. 177.
Umabai v. Bhavu Ibid. 567.
BOMBAY ACT V. OF 1B82.
See Narvadari Tillage.
Vbribhai v. Ragkitbhai I. Lv
Bep. 1 Bom. 225.
L ,( i to3~ Bhagdari Village— Mori.
gage before Passing of the Act— Court Sale.]
The plaintiff in 1874 sued on a san mort-
gage, dated 15th November 1861, It., five
months before the passing of Bombay Act V.
of 1S62, to recover a sum of money by sale ot
the mortgaged property, which formed part of
a bhag in a bhagdari village, which bhag the
defendant bad purchased at a Court's sale
subsequent to the date of the mortgage : —
Held, that, assuming | 1 of the Act to apply,
it did not preclude the bearing of the suit, or
the making of a decree, even tbough the Court
might anticipate that the section would stand
in the way of the execution of the decree, and
that, therefore, the Court was bound to make a
decree.
D.gmzed by G00gle
DIGEST OF CASES.
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BOMBAY ACT V. OP 1969— contd.
But held also, that the section did not apply
as, 1st, retrospective operation waa not to bi
given to it so as prejudicially to affect existing
rights ; and, indly, the words " attachment
sale by the process of any Civil Court" in tl
section were intended to prevent attachment and
sale under simple money decrees, and not to
prevent the sale of mortgaged property in satis-
faction of the mortgage debt.
Held, also, that the defendant, being a pur-
chaser at an -auction sale, bought only the right,
title, and interest of the debtor, burdened with
all valid liens created by him, and subject,
therefore, to the plaintiff's san mortgage. Ran-
chodas Davaldas h- Ranchodas Nanabhai-
MelvUl and Kemball, J] I. L. Sep. 1 Bom.
681, 1877.
2. — i 3.— Sale of Unrecognised Portion.]
The sale of a portion of a bkag in a Bhagdai
or Namadari village, other than a recognize
subdivision of such bkag, or of a building-sit
appurtenant to it, is illegal, under J 3 of Bombay
Act V. of 1862 : and a judgment creditor can-
not, in execution of his decree, evade the law,
by describing his debtor's separate portion in
the hhag as his " right, title, and interest in the
whole bkag"; for, under { 213 of Act VIII. of
1859, the creditor is bound to specify the debtor's
share or interest to the best of his belief, c
far as he has been able to ascertain the s
Even if a sale of an undivided share in a bkag
be lawful, the purchaser cannot insist on any
particular portion of the bkag, as representing
his debtor's portion, being delivered to him. All
he can do is to sue for partition ; but queer
whether such partition could be made Arda
sir Nasarvanji v. Muss Natha. Mefailt and
Kcmbaii, J]... I. L. Rep. 1 Bom. 601, 1877,
BOMBAY ACT II. OF 1868-* 6, CI. 2-
N on- Recognition of adoption by Civil Court.']
The provision in Bombay Act II. of 1863, { 6,
CI. 2, as to the non -recognition of adoption by
any Civil Court relates only to the question of
the assessability of the lands when raised be-
tween Government and a claimant of exemption.
It is not open to a party to rely upon a provision
of which Government only is entitled to take
advantage. Vasadkv Anant ■■ RAy Krishna
Nakravan, Westropp.C.]., and JWWmK, J...L
L, Bep. 2 Bom. 629, 1878.
BOMBAY COTTON FRAUDS' ACT IX.
OF 1883— i 2— Possession of Adulterated Cotton
— Knowledge.] Possession of adulterated cot.
ton, even though accompanied by a knowledge
that the cotton was adulterated, is not sufficient
to sustain a conviction, under § 2 of Bombay
Act IX. of 1863, of fraudulent adulteration or
deterioration of cotton. Theic is no criminality
attaching to such possession until the cotton is
offered for sale or compression. Reg. v. Han-
MAMT Gavda. Melvill and Kemball, JJ...I. L,
Bep. 1 Bom. 228, 1878.
BOMBAY ACT V. OF lS6i— Mamlatdar's
Order under Bombay Act V. of 1864— Possession-
Revenue Courts— Act XVI. of 1838, § r, CI. 3.]
A Mamlatdar's order under Act. V. of 1864 is
not conclusive evidence of the facts of possession
and dispossession between the parties- The
power reserved to the Revenue Courts by § I, CI.
2, of Act XVI. of 1838, to determine thefacts of
possession and dispossession, was so reserved for
the temporary purpose of enabling those Courts
dispose of the immediate possession, which
a to continue onlyuntil the Civil Court ejected
the party put into immediate possession.
Bombay Act V. of 1864, which gives to the
Mamlatdar's Court jurisdiction in cases of dis-
possession, within six months from the date of
such dispossession, also relates to immediate
possession (§ l), and provides that the party to
whom such immediate possession is given by
the Mamlatdar, or whose possession he shall
tain, shall continue in possession until
ejected by a decree of a Civil Court (§ 15). The
irpose of this Act, like that of Act XVI. of
■38, was temporary only, and chiefly to provide
for the cultivation of the land and to prevent
breaches of the peace until the Civil Court
should determine the rights of the parties.
The decisions in the Revenue and Mamlat-
dars' Courts as to possession and dispossession
ot binding on the Civil Courts in questions
of title, which the Civil Courts alone can enter-
tain. Bassappa Murtiappa v. Lakshmappa
MarITAHaPPA. Westropp, C. J., and N. Harri-
das, J I. L. Bep. 1 Bom. 624, 1877.
BOMBAY MINORS' ACT XX. OF 1864 —
Unauthorized Sale by Guardian of Minor
See Lien. 1.
Kuvahji r. Moti Haridas .X L.
Bep. 3 Bom. 284.
Diarized by Google
( 1» )
DIGEST OF CASES.
( I" )
BOMBAY VHTOBB? ACT XX. OF 1894
Undivided Hindu Family— Death of Mem-
ber of— Certificate cannot be granted if no
Separate Property.
See Certificate of Administration
of lliuor's Estate. 1.
GURACHARYAfl.SVAMIRAYACHARYA-
I. L. Bop. 3 Bom. 431.
. § 2— Procedure — Civil Procedure Codi — Act
X. of 1877, f 440.] Where a Hindu widow sued
as guardian of her minor sons without having
obtained a certificate of administrate
quired by § 2 of Act XX. of 1864 s—
Held, that Act XX. of 1864 is not superseded
by Act X. of 1877 ; and it appearing from the
frame of the suit, that the widow claimed to have
charge of the property in trust for her
sons, it was necessary under f 2, Act XX. of
1864, if the whole estate was of greati
than Rs. 250, that she should hold a certificate
of administration ; but that it was competent
the Court, if there was any pressing necessity
(owing to the operation of the law of limitation)
that the suit should be brought at once, to accept
the plaint and stay proceedings until the mother
had obtained a certificate under Act XX. of
1864. Vijkor v. Jtjibhai (9 Bom. H. C. Rep. 310)
followed. Murlioharh. Supou. Melvill and
Kemball, JJ I. L. Bep. 3 Bora. 149, 187&.
if II and 15— SWt OgfifUt Collector — Ad
XIV. of 1869, ( ^-Jurisdiction.-] Sections 11
and Ij of Act XX. of 1864, taken together,
show that the Collector when appointed to take
charge of the estate of a minor, is so in hi:
capacity as Collector, and therefore, as an officei
of Government within the meaning of % 32 of
Act XIV. of 1869. Narsinorav Ramchandra
«. LuxiMANRAV. Westrapp, C.J., and Kemball, ]
L L. Bop. 1 Bom. 318, 1876.
BOMBAY ACT 1. OS" 1865-Revenue Surrey
Registers— Entry of /Chefs Tenants'
Names as Occupants — Cause of Action,
Sec Entry of Names of Knot'* Ton-
ants in the Bevenue Surrey
Register as Occupants.
D. R. Bam v. The Survey Com-
missioner OF RATNAGIRI...L
Ii. Bep. 3 Bom. 134.
— i 2— a. j,t,i.
See Kabulayatdar Knot
Kkishnaji v. Ramchanbha...!. L.
Bep. 1 Bom. 70.
BOMBAY ACT I. 07 1885— contd.
\ 38— Village Cattle.
Set Bight of Free Pasturage.
Collector of Thana «. Bal
Patel...L L. Bep, S Bom.
110.
(35— Land in Sahctte™ Ultra Vires— Go-
vernment Land — Building — Prescription.'] The
plaintiff held a cocoanut oart in Bandora, in the
island of Salsette, in the Thana District, undeT
a title which extended back, at all events, to the
In the year 1869 he commenced to
build and in 1871 completed the building of a
bungalow upon it, without the permission of the
Collector, who, under Nos. 4 and 8 of the Rules
framed under t 35 of Bombay Act f. of 1865,
and issued on the 1st November 1865, inflicted
the plaintiff a fine of thirty times the fixed
assessment of the whole Survey number, and
doubled that fine under the Supplementary
framed under Government Resolution No.
436, dated February 1st 1869; and on the plain-
tiffs failure to pay the fine, summarily attached
his land under the provisions of § 48 of Bombay
Act I. of 1865-
In a suit brought by the plaintiff to remove
the attachment : —
Held, 1st, That it was not within the power of
the Government of Bombay to make the rule of
1st February 1869, and no penalty having been
prescribed by J 35 of the Act for building with-
out the Collector's permission, and the Governor
in Council not being authorized to make a rule
on the subject, the attachment placed by the
Collector was in pursuance of an unauthorized
demand and illegal.
Held, xndly, That f 35 is in terms applicable
only to occupants of Government land ; and the
Government land spoken of in that section is
the same thing as " land belonging to Govern-
ment" spoken of in f II of the Act, |and must be
understood as used in the same sense of contra-
distinction to land " belonging to private indi-
viduals." And the distinction between Govern-
ment land and land belonging to individuals is
not to be sought in the payment or non-payment
of assessment, but has reference to the proprie-
tary right in the soil. The expressions, " land
belonging to Government," and "Government
land," mean, land of which Government is the
proprietor, and do not apply to land in which
the proprietary right in the soil vests in a private
individual, whether or not it be subject to the
payment of assessment to Government.
by Google
DIGEST OF CASES.
( 1M )
BOMBAY ACT I. 07 18BB- tontd.
$rdly, That from i 40 of Reg. I. of 1808, it
appeared that the occupants of oarts in the
island of Salsette vera, from 1800 to 1808 (the
date of the Regulation) treated as "proprietors,"
and that in 1807 the assessment was fixed on
the whole extent of the oarts, " however occu-
pied." There was no reason to suppose that
the assessment had been altered between 1808
and 1861, when the new Survey was introduced,
but even if it had been altered, it would not
have affected the plaintiff's claim, for the
assessment on land may be varied, without any
disturbance of proprietary rights ; and the
plaintiff, and those through whom he claimed,
having held as proprietors and without dispute
from iglj till 1869, the, plaintiff had acquired a
prescriptive right of property, under Reg. V.
of 1827, i 1, to the oart, subject only to the
payment of assessment ; that the land was not
Government land within the meaning of f 35 of
Bombay Act I. of 1865,' and therefore that the
plaintiff was not liable to pay any fine or penalty
for building on it without the Collector's per-
mission, and that the attachment of the oart
by the Collector was illegal, and must be
removed. The Collector of Than* h- Da-
dabmai BoMANjl. Uehitt and Kemtall, JJ
I. L. Rep. 1 Bom. 353.
■ 48-
See Kabulayatdar Shot.
Kris una j 1 v. Ramchandra...I. L.
Rep. 1 Bom. 70.
See i 35.
Collector op Thana e. Dada-
bha[...L L. Rep. 1 Bom.
353.
BOMBAY CIVIL COURTS' ACT XIV. OF
1860— J 24.
See Jurisdiction. 19- SO.
Bai Makhorc. Bulakhi.,.1. L.
Rep. 1 Bom. 538.
Kalu 9. Viskam Ibid. 543.
*3*.
See Bombay Minors' Act XX. of
1864, H 11 and IS:
Narsingrav v. Luxuman...!. L,
Rep. 1 Bom, 318.
See Jurisdiction. 18,
Gangadhar v. Collector of
AhmedhagAR...!, L. Rep. 1
Bom. 628.
BOMBAY ACT VI. 07 I873-, 5— Suit
nst Municipal Commissioner.'] " Whether
it (against Municipal Commissioners for
acts done by them as such) must be commenced,
und<;r Bombay Act VI. of 1873, in the District
Court, we do not now give any opinion. It
may, perhaps, be argued that ( 5 of that Act
■ges the individuality of the members of the
' Municipalities in the Corporations thereby
created, and empowered to sue and be sued in
corporate name." Per Westropp, C. J. Gan-
ihar Skivkar it. Collector of Ahmf.iina-
I. L. Rep. 1 Bom. 628.
- $ 7 — Jurisdiction — Subordinate Judge.
See Suit against a Municipality.
The Ahmbdabad Municipality b.
Mahauad J amai-.I. Ii.Rep.
3 Bom. 146.
- ff 36 to 39— CI. 1, f 74. Non-compliance
with notices issued by the Municipality under
i 36 of CI. I of ( 39 of Bombay Act XI. of 1873
s not an offence punishable under that Act, as
"I. 1 of ( 74 of that Act does not apply to either
>( those provisions. The latter clause applies
only to the second clause of J 39. In re TukA-
VlTHAL. Westropp, C. J., and {Cembali,
L L, Rep. 2 Bom. 537, 1878.
BOMBAY ACT HX OF 1874.
See Declaratory Decree. 17. 18.
Chinto v. Lakshmibai I, L.
Rep. 2 Bom. 875.
Kkahdov. Apaji.L L. Rep. 2
Bom. 370.
BOMBAY ACT X. OF 1876-* 15— Munici-
palities.
See Suit attains* a Municipality.
The Ahmedabad MoNictPALtTve.
MahauadJamal.,1. L.Rep.
8 Bom. 146.
BOMBAY COTTON FRAUDS' ACT VII.
OF 1878— if 6 and 14— Adulteration in Foreign
Territory — Possession — Jurisdiction.'} Cotton
supposed to have been adulterated in foreign
territory was seized in British territory :—
Held, that the Magistrate of the place where
the cotton was seized has jurisdiction to try the
person In possession of the cotton, as the effect
of {{ 6 and 14 of Bombay Act VII. of 1878 is to
make the possession of " adulterated cotton lia-
DigitizsdbyGOOC^Ie
DIGEST OF CASES.
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BOMB AT COTTON FRAUDS' ACT VTL
OF 1878— could.
ble to confiscation " punishable with fine, and it
is immaterial where the adulteration takes place.
Ihpsratrix t. Khimchand Narrayan. Kem-
hall and F. D. Melvill, JJ..X L. Bop. 3 Bom.
384, 1879.
BOMBAY REGULATION I. OF 1808.
See Bombay Act I. of 1865, f 35,
Collector of Thanait. Dadabhai
Bom an jr. ..I. L. Rep. 1 Bom.
3S2.
BOMBAT BEG. IL OF 1827— * 31— Caste
Question— Office of Chalaadi.
See Disturbance of Office. 1.
S HAN KARA »■ HANMA L L.
Rep. 2 Bom. 470.
BOMBAT REGULATION V. OF 1827-
J i, CI. i.
See Bombay Act I. of 1885, « 35.
Collector of Thana o. Dada.
bkai Bohanji.-.I. L. Rep.
1 Bom. 352.
BOMBAT REGULATION XVII. OF
1827— §3. CI. i.andi S-
Sec Kabulayatdar Khot.
Krishna if. Rauchandha ...I. L.
Rep. 1 Bom. 70.
BOMBAT REGULATION XXVI. OF
1827— Appointment of Kazi.
iW-Kazi. 1.2.
Ja-al Ahmed *.Ja,ialjal
I. L. Rep. 1 Bom.
DaUDSHA V, IsMAtLSHA I. L.
Rep. 3 Bom. 72.
BONA FIDES.
See the cases under Act XVHL Of
1850.
Of Purchaser with Notice of Trust. ■■
Sec Hindu Law— Will. 10.
HANKLAL V. MlNCHERSHA ...L L.
Sep. lBom. 269.
BONA FIDE CLAIM OF RIGHT.
See Criminal Trespass. 4. 5.
Empress ». Budhsinoh ...I. L.
Rep. 2 All. 101.
Govmo Prasad I. L. Rep,
IS
BONA FIDE PURCHASER- Of DnmtUr
Property.
Sa Dewutter. 3.
Konwur Doorganath c. Ram
Chundgh L. Rep. 4 I. A.
53 ; L L. Rep. 2 CaL 341.
BONA FIDE PURCHASER FOR VALUE
WITHOUT NOTICE OF WIDOW'S
CLAIM FOR MAINTENANCE.
See Hindu Law— Maintenance of
Widow. 1. 13.
Adhiranee v. Shona Malc.L
L. Rep. 1 Cal. 365.
LAKSHMAN e. SaTYABHAMAbai „t
L. Rep. 2 Bom. 404.
BOND— Attachment of.
See Civil Procedure Code, Act X.
of 1877, ( 268.
NlTRSINGDAS o. TUL5IRAM...X. L.
Rep. 2 Bom. 558,
Cancellation of — Suit for.
See Bengal Civil Courts' Act VI.
of 1871, (22.
Kali Char an Rai v. Ajudhia-
Rai . I. L.Rep. 2 AIL 148.
Interest on— After due date of Bond con-
taining Agreement to pay Interest up to
due Date.
See Interest. 1. 3. 6.
Deen Doval t>. Het Narain ..
L L.Rep. 2 Cal. 41.
Baldeoh. Gokal L L. Rep.
1 AU. 0O3.
Nanchand o. Bapusaheb...I. L,
Rep. 3 Bom. 131.
See Mortgage. 80.
Hasson Arra v. Jawadoonissa.
I. L.Rep. 4 Cal. 28.
BOND CHARGING IMMOVEABLE
PROPERTY— Suit on— Decree payable
by Instalments.
See Civil Procedure Code, Act X. of
1877, ( 210.
Hurueo Das t. Hukam Singh...
L L. Rep. 2 AU. 320.
BOND PAYABLE BT INSTALMENTS.
See Limitation, v.4.
Ball v. Stow ell... I. L. Rep. 2.
All. 485. AU. 3-2.
D.gmzed by GoOgle
DIGEST OF CASES.
BOND PAYABLE BY INSTALMENTS
Whole to fail due on any Default— Limi
tation.
See Limitation. 30.
Gumma b. Bhiku...I. L. Rep. 1
Bom. 136.
BOND FOR PERFORMANCE OF DU-
TIES OF OFFICE.
See Principal and Surety. 1.
Cbosthwaite b. Hamilton I
L. Rep. 1 All. 87.
BOND TO SECURE BALANCE OF AC
COUNT— Error in Accounts— Estoppel — Eh.
dorsement— Receipt.] The defendant executed
to the plaintiff a bond for the payment of the
balance found due from the defendant to the
plaintiff, on an adjustment of the account of
their mutual dealing, which bond contained thi
following stipulation ;— " I shall pay the money
after causing the payment to be entered on the
back of this bond, or after taking a receipt foi
the same. 1 shall not lay claim to any paymeoi
except in this way."
In a suit by the plaintiff upon this bond, the
defendant, while admitting its execution, said
that the balance secured by the bond was ii
at the time of the adjustment, and ever since 1
had disputed the accuracy of the balance, h
also alleged that he had made various payments
in respect of the balance, which were not endors.
ed on the bond, and for which he held no
Held, that the defendant could not be permit-
ted to re-open the question of the correctness of
the balance for which the bond was given, ai
he must be taken to have waived his objection
since, notwithstanding it, he subsequently execu.
ted the bond and made payments on it The
case would have been different if his allegation
had been that after the execution of the bond he
had discovered errors in the account on which
the balance was arrived at. In such a case it
might possibly have been right, on specification
of some one or more of the alleged errors, to
have allowed him to re-open the question of the
correctness of the account.
Held, also, that the stipulation in the bond
could not be permitted to control Courts of
Justice as to the evidence — which, keeping
BOND TO 8ECUBB BALANCE OF AC
COUNT— amid.
within the rules of the general law of evidence,
they may admit — of payment. There is nothing
in that law which would warrant the Court in
excluding direct oral evidence ot payment. The
absence of endorsement, in the case of a bond
containing such a stipulation as in the bond
sued on. is a circumstance of some importance,
and ought not to be overlooked, but it is by no
means conclusive, and ought not to be so regard-
ed. Narayen Undir Path. h. Moitlal Ram
das. Westropp, C.J. , and Kemball, J...L If. Hep.
1 Bom. 40, 187S.
BOND SPECIALLY REGISTERED
Appeal from Order in Execution of Decree
See Appeal— Civil 7. 11. IS.
Bhvrub Chunderh. Go lab Coo.
mary I. L. Rep.SCaL
517.
Rahanand v- Bank of Bohbav ...
I. L. Rep. 1 AIL 377.
WlLAYAT-UN-NlSSA V. WaJIB-UN-
Nissa Ibid. 683.
Decree on — Mortgage.
See Sale in Execution of Decree. 6.
Akhb Ram v. Nand Kishore...
I. L. Rep. 1 All. 230.
Limitation for Execution of Decree on.
See Appeal Civil. IS.
WlLAYAT-UN-NlSSA e. WaJIB-UN-
Nissa.JL L. Rep. 1 All. 083.
See Limitation. 79.
Jai Shanker b. Tetlev I. L.
Rep. 1 All. 088.
BONUS— Refund of.
See Darpatni,
TaRACHAND b. RAHGOBtND...L It.
Rep. 4 Cal. 778.
BOUNDARIES, SPECIFICATION OF,
IN PLAINT.
See Civil Procedure Code, Act VTH.
of 1809, (38.
Raudaval ■b. Ajooobia I. L.
Rep. 2 CaL 1 .
BREACH OF CONTRACT TO DELI-
VER—Jurisdiction— Whole Cause of
Action arises at Place of Contract or Per-
formance.
See Jurisdiction. 14.
Muhammad Abdul Kadah ». G.
I. P. Ry. Co,. J. L. Rep. 1
Mad. 370.
Digitized byGOO^Ie
( »I )
DIGEST OF CASES.
BREACH OF CONTRACT TO FOB-
CHASE GOODS — Measure of Da-
S/t Damage*.' 3.
Cohen v. Cassim Nana I. L.
Sep. 1 Cat 864.
BREACH OF CONTBAOT TO SUPPLY
LABOUR.
See Act ML of 1889.
Rowson *. Han am a Mestri.X L.
Rop. 1 Mad. 280.
BREACH OF TRUST— Criminal.
See the cases under Criminal Breach
of Trust.
Alienation of Charity Property. .] There is
no such principle of law (hat the alienation of
charity property by the trustees is, standing by
itself, a breach of trust. The Court of Chancery
in many cases authorizes such alienations, and
that which the Court might have done, on its
own consideration of what would have been
beneficial to the charity, may be done by the
trustees on their own authority in the exercise
of their legal powers.
And where a house bad been devised by a
testator in iSoi, to his widow for life, in trust,
to allow any Maharaja of the Vallabbacharya
sect to live in it, and it appeared that no Maha-
raja ever had lived or was likely to live in it,
and the house was in a decayed and dilapidated
condition, and the widow therefore sold the house
to a bond fide purchaser for value : — Green, J.
said, had it been necessary to decide the ques-
tion, that he would have upheld the sale by the
widow, as being a reasonable and proper exercise
of her office as trustee, and to have held it not
to have been a breach of trust at all. Manik-
LALL ATM ARAM ». MaNCHEHSHA DlNSHAW
Coachman I. L. Rep. 1 Bom. 268,1876-
S. C. under Hindu Law— Will. 10.
BREACH OF WARRANTY OF QUALI-
TY- Right to rescind Contract.
See Sale of Goods. 1.
Shoshi Mohun v. Nobo Krishto.
L L. Rep. 4 Cal. 801.
BREAKING OPEN DOORS.
See Housebreaking.
Jotharam Davav.„I. L. Rep. 3
BREAKING OPEN DOORS-centd.
Execution of Decree — Shop Door — Act X. of
1877, S 27'.] A bailiff or if amir has authority
to break open the door of a shop in order to
execute a writ of attachment, the previously
existing law on the subject not being altered by
( 371 of the new Civil Procedure Code (Act X.
of 1877). Damodeh Parsotam c. Ishvar Jr-
tha. Mehill and West, J] L L. Rap. 3
Bom. 80, 1878.
Acceptance of — by Public Servant.
See Penal Code, \ 21, CI. 8.
MudaN Mohun. ..L L. Rep. 4
Cal. 376.
See Penal Code, j 16S.
Empress u. Kahpta Prasad. ..I.
L. Rep. 1 All. 030.
Attempt to obtain.
See Attempt. 3.
Empress v. Baldev Sahai.-.I. L.
Rep.2AU.2fi3.
BRITISH CONSUL AT ZANZIBAR-
jurisdiction of.
See Zanzibar.
Wagji Koriio. Tkaria Topan...
I. L. Rep. 3 Bom, 68.
OTHERS— Succession of— in Undivided
Family— Nephews not excluded by.
Sec Hindu Law— Inheritance —
Nephew.
Bhihul. Doss v. Choonek Lall.
L L. Rep. 2 Cal. 378.
See Hindu Law— Inheritance—
Brothers. 3.
Debt Persad b. Thakur Dial...
I. L. Rep. 1 AIL 105.
-Of Whole Blood succeed, in Bengal, in
Preference to— of Half-Blood, to lm-
moveable Property.
Sec Hindu Law — Inheritance —
Brothers. 1. 2.
Rajkishore 11. Gobisd L L.
Rep. 1 Oal. 27 ; 24 W. R.
934 ; L. Rep. 4 I. A 163, n.
Shho Soondarvii. Pirthee Sing.
L. Rep. 41A. 147*
Digitized byGOO^Ie
DIGEST OF CASES.
BROTHER'S DAUGHTER'S BON-Right
of— to inherit. "
Sri Certificate to collect Debts. 1.
OonoYCHuRN.,.1. L. Rop.lCal.
411.
See Hindu Law — Inheritance—
Brother's Daughter's Son.
Juggut Narain v. The Col.
LECTOR OP MaNBHOOM.I.
L. Rep. 4 Cftl. 413, n.
BROTHERHOOD— Acknowledgment of—
See Mahomed an Law — Acknow-
ledgment of Brotherhood.
MlRZA HlMHUT BaHADOOR ».
Mussamut Sahebzadee Be-
gum L. Rep. 1 1. A. 33.
BUILDINGS— Erected by Occupancy Ryot.
See Bengal Act VIII. of 1869.
Lal Sahoo v. Deo Narain Singh,
I. L. Rep. 3 Cal. 761.
Erection of— by Tenant at Will or from
Year to Year, on Land demised.
See Landlord and Tenant. 2.
Prosunno Coomare it. Sheikh
Rutton.,.I. L. Bep. 3 Cal.
696.
BUILDING ERECTED IN A PUBLIC
THOROUGHFARE-SuFt to remove.
See Right to sue. 2. 3. 4. S.
Gehanji t>. Ganpatj...L L. Rep.
2 Bom. 469.
Kabiu BakSH v. Buuha...I. L,
Rep. 1 All. 249.
Fazil Haq «. Maha Chand.
Ibid. 667.
Raj Koomar Singh v- Sahebzada
Roy... I. L. Rep. 3 CaL 20.
BUNDS— Maintenance of.
See maintenance of Runda.
Ram [..ill u. Lill Dhary..,I, L.
Rep. 3 Cal. 776.
BURMAH COURTS' ACT XVH. of 1876,
i S 31 and 66.
See Jurisdiction. 9.
In re AbdoolHamed...!, L. Rep.
4 CaL 94.
- — i 35— " Any Original Jurisdiction"— Trans-
fer by Judicial Commissioner, from Ses.
si cms to his own Court, of Criminal
Case — Appeal.
See Jurisdiction. 17.
Tsrr Oob I. L.
Rep. 4 Cal. 697.
See Mortgage. 9.
BYJNATH V. RAMOODEEN...L. Rep.
1 I. A. 106 ; 21 W. Rep.
233.
See Partition by the Revenue
Authorities.
Sharat Chander v. Hurgobin-
co.I. L. Rep. 4 CaL S10.
Possession given by Ameen n— Effect of.
See Criminal Procedure Code, Act
X. of 1872, §530. 2.
Mackenzie o. Shere Bahadoor
Sahi LL. Rep. 4 Cal.
378.
Effect of— Jurisdiction of Civil Courts.'] By
a butwara the rights of under.tenure holders are
In no way affected, and though, as between
shareholders, the assignment of specific lands
to each shareholder has binding effect, yet such
assignment does not of itself entitle the share-
holder to obtain ihas possession to the depriva-
tion of the rights of the tenants on the land.
The Civil Courts have no jurisdiction to disturb
a butaara which has been effected by the pro-
perly constituted authorities acting in accord-
ance with the law. Per Kemp,]. Bemolasoodury
Chowohrain v. Punchanun Chowuhry.-.I.
L. Rep. 3 Cal. 706, 707,
708, 1878.
S. C. under Res Judicata. 32.
CANCELLATION OR REPUDIATION
OP ADOPTION BY ADOPTIVE
FATHER.
See Hindu Law— Adoption. 18.
CANCELLATION 07 A BOND, SUIT
FOR— Vaiueof Subject-matter in Dispute
— Appeal — Jurisdiction of District Judge.
See Bengal Civil Courts' Act VI. of
1871, 1 32.
Kali Charan Raiv- AjudheaRai.
L L. Rep. 2 All. 148.
CANCELLATION OF DOCUMENT— Suit
for.
See Declaratory Decree. 12.
Shib Lal v. Hira Lal I. L.
Rep. 1 All. 633.
D,gltlzed by G00gle
( «os >
DIGEST OF CASES.
CANCELLATION OF BIGNATUBE —
Deed— Release — Composition Deed — Misrepresen-
tation—Negligence— Contract Act {IX. of 187a),
,f 13, 18, 19.] The firm of Nicol k Co. having
suspended payment, a general meeting of the
creditors of the firm was convened, at which it
was unanimously resolved that the business of
the firm should be wound up by voluntary liqui-
elation under the supervision of a Committee ;
and that the winding up should be conducted by
;Uperv
itrol
of the said Committee. At a subsequent me
ing of the creditors it was resolved that the
solutions passed at the previous meeting should
be confirmed, and it was also unanimously
resolved that "a composition deed should be
prepared in pursuance of the terms of the above
resolution." The adoption of this last resolutior
was strongly urged upon the meeting by the
solicitor for the insolvent firm. He entirely re-
pudiated the idea that the members of the firm
were to get any benefit from the deed, the object
of which, he assured the meeting, was entirely
for the benefit of the creditors, and insisted that
the mode of procedure proposed in the resoh
tion was proposed solely in the interest of the
creditors. Neither before nor at either of these
meetings was any mention made of any release
to be given to the parties.
The plaintiffs were creditors of Nicol and Co.
and K., S., and B. were their respective agent!
in Bombay. R., 5., and B. attended the meet.
ings on the plaintiffs' behalf, and were appointee
members of the Committee of Supervision art
Control, A few days after the last -mentioned
Meeting, if., one of the partners of the insolvent
firm, called upon R-, who was at the time deep,
ly engaged in pressing an important business.
H. produced a deed which had been prepared by
the solicitors of the firm, and which contained
clause by which the creditors, in consideratio
of the assignment of the estate to trustees, n
leased and discharged the members of the firm
from all claims. If. was aware of the existence
of the release in the deed, but R. was not. M.
asked R. to execute the deed, saying it was
" the trust deed." R. requested .If. to leave the
document, saying he would peruse and return
it in the course of the day; but .'/. earnestly
pressed him to execute the document at once
stating that it was of the utmost importance
■bat no time should be lost, as the native cre-
ditors'were coming to his office, and it was
necessary that all the members of the Com
CANCELLATION OF SIGNATURE—
mittee of Supervision should sign first. R.
objected to sign the document without reading
it, and M. thereupon led him to suppose that it
carried out only the terms agreed to at the credi-
tors' meeting. On the faith of that assurance,
R. executed the deed without reading it, on be-
half of the first plaintiff, in the belief that it was
nothing more than an assignment to trustees for
the benefit of creditors. Subsequently, on the
same day, M. took the deed to S, and asked
him to sign. 5. was also engaged in pressing
business, and asked J/, to leave the deedfor
perusal ; but M. gave the same reason for not
doing so that he had given to R,, and further
stated that R. had signed, though he did not
mention that R. had so signed without reading
the deed, and that he {*/.) hoped that S. would
sign also. 5. glanced at the deed, and being
assured by M. that it was in order, thereupon, on
the faith of that assurance, and believing that the
deed was nothing more than an assignment of
the estate to the trustees, executed the deed on
behalf of the second plaintiffs without reading
it. M. subsequently on the same day took the
deed, with the signatures of R, and S, attached
thereto, to B., who was also engaged in press-
ing business, and asked him to sign it. After
some conversation B. said to M. : " The deed,
then, is merely an assignment of the firm's
effects for the creditors P " and M. replied in the
affirmative. B. then, on behalf of the third
plaintiffs, executed the deed without reading it,
believing it to be merely an assignment of the
On the 15th October, R. and B. heard that the
deed contained a release by the creditors to the
debtors, and on the 16th October, S. was also for
the first time informed of it. On the 16th of
October, R- and S. wrote a letter to if., repudiat-
ing their signatures, and refusing to be bound by
the deed ; and on the *6th of October, B. caused
a similar letter to be written to H.'s solicitor.
The plaintiffs sued to have the signatures of
spective agents and managers cancelled,
and to have it declared that the deed was not
binding on the plaintiffs !—
Held, that the introduction into the deed
of an immediate release from the creditors
Jly altered the nature of the arrange-
:ontemplated by the above resolution,
ided to be acceded to by the creditors.
The question as to the release, by the creditors
jogle
( Hff ) DIGEST OF CASES. ( 208 )
CANCELLATION 07 SIGNATURE- CANCELLATION OP SIGNATURE—
mtd,
of the firm, was never brought to their notice in
any shape whatever, was never presented to
their minds for consideration, and the deed
contemplated by the above resolutions could
not, with any reasonable regard to what took
place at the meetings, have been intended by
the creditors to contain an immediate release.
The deed, therefore, containing as it did an
immediate release by the creditors of their
claims in consideration of the assignment of the
property of the firm, could not, when read by
the light of what occurred at the meeting of
creditors, be regarded as a deed made in pursu-
ance of the resolutions passed at those meetings,
but was, in its present form, an essentially differ-
ent deed from that which R., B., and S. intend-
ed to execute, or thought they were executing
when affixing their signatures, and that having
been induced to sign the deed without reading
it by Sf.'s earnest entreaties to them to sign at
once, and by his leading them to suppose that
the deed only earned out the resolution of the
creditors, and by his silence as to the release,
their signatures must, so far as the deed opera-
ted as a release, be treated as nullities, and the
deed, to that extent, be declared void as against
the plaintiffs.
Held also, that though when M. entered R.
room to ask him to sign the deed, he was under
no obligation, legally or morally, to
cate the contents of the deed; the circumstances
were quite changed by what took place between
M. and if. When R., on being pressed by M. to
sign the deed withont further delay, asked M.
(as 'M. himself admitted) " whether it was all
right," or (according to ff.'s account) " whether
it carried out the resolutions passed at the meet-
ing," M. accepted the confidence placed in him
by R. by answering the question and purporting
to tell R. the nature of the deed. It thai be-
came Jf.'s duty to state fully, without conceal-
ment, all that was essential to a knowledge of
the contents of the document, and to have com-
municated the existence of the release, and IS.
not having done so, and R. having been thus led
to execute a release to the prejudice of his bank,
M. had committed a breach of duty such as is
contemplated by § 18, CL 2 of the Contract Act
IX. of 1871. There was no material difference
in the circumstances connected with 5. and B.
Held also, that under the circumstances R., S.,
and B. had not the means of discovering the truth
with ordinary diligence, and that the exception to
i 19 of the Contract Act was not applicable.
The Oriental Bank Corporation v. Johm
Fleming. Sargent, J. ..I. L.Kep. 3Bom. 242,
1878.
S. C under Parties to Bait. 3.
See Hindu Law— Capacity of
Harried Woman to con-
tract.
Nathulal v. Javheh I. L.
Bop. 1 Bom. 121.
See Married Woinan'o Property
Act HX of 1874.
Alumuddv i. Braham :L L.
Bep. 4 Cal. 140.
See Harried Woman's Separate
Property. 2. 3.
Hurst s. Mussoorie Bank I.
L. Hop. 1 All. 762.
Beresford v. Hurst... Ibid. 772.
CARGO— Contract for Sale of.
See Contract. 1.
Forbes b.Tullockchand...L L.
Bep. S Bom. 386.
CARRIES— Burden of Proof of Negligence-
Loss by Fire.
See Railway Company. 3.
ISHWARDSASS D. THE G. I. P. Ry.
Co... I. L. Bep. 3 Bom, 120.
— Liability of — for Loss by Robbery.
See Railway Company. 2.
Kuvebji b. The G. I. P. Ry. Co.
I. L. Bep. 3 Bom. 108.
1 Misdescription of Goods.
See Railway Company. 8.
lSHWARDASS D. THE G. I. P- RV,
Co... I. L. Rep. 3 Bom. 120.
CASE CERTIFIED BY ADVOCATE
GENERAL-Power of High Court on
—to consider the Merits.
See Evidence. 13.
RED. il. HtJRRCHOLE CHUNDER
Chose.,, I. L. Bep. 1 Cal.
207.
Digitized byGOO^Ie
{ :
)
DIGEST OF CASES.
CASE CERTIFIED BY ADVOCATE-
GHNEEAL-™U.
See Power of the High Court on a
Case Keaerved or Certified
to consider the Merita of the
Case.
Reg. i>- Pitamber Jin'a I. L.
Bep. 2 Bom. 81.
CASE STRUCK OFF FOB DEFAULT IN
APPEARANCE — Power of Small
Cause Court to restore.
See Small Cause Court— Prnsid en-
cy Town. 1.
SibChunderil Kissen Dyal...I.
L. Bep. 1 CaL 476.
CASHING- STOLEN CURRENCY NOTE.
See Government Currency Note.
Empress e. Jocessur Mochi...I.
L. Bep. 8 CaL 379.
CASTE— Authority of— to declare a Marriage
See Penal Code, ( 494.
Reg. v- Sambhu...L L. Bep. 1
Bom. 347.
Custom of— for a Married Woman to con-
tract a Second Marriage in the Life-time
or her First Husband and without bis
Consent.
See Penal Code, § 404.
Reg. v. Sambhc L L. Bap. 1
Bom. 347.
See Coatom. S.
Nabayak v. Bhasti...L L. Bep.
S Bom. 140.
CASTE QUESTION — Right to perform
Duties of CkalvaJi.
See Disturbance of Office. 1.
SH ANKARA o. HAHNA...I, L. Bep.
3 Bom. 470.
CAUSE OP ACTION.
See the cases under limitation.
See the cases under Bight to Sue , and
Suit.
See Bight to Fish in the Sea.
Baban v. Nagu L L. Bep. 8
Bom. 19.
.See Suit for Laud. 3.
Ksllib v. Frasbr...I. L. Bep. 2
CaL 440.
CAUSE OF A0TION— conW.
Accruing during Minority.
See Alienation by Guardian. 1.
PROSONNA NATH V. AfzOLONESSA
Begum. ..X. L. Bep. 4 Cal.
623.
-Act VIII. of 1859, i 2— Substance not Form
of Action to be regarded
See Bes Judicata. 9.
Krishna o- BoojE5WARj...L.Bep,
3 I. A. 883 ; I. L. Bep. 1
Cal. 144.
— Barred by Act XIV. of 1 859, not revived by
See Limitation. IB. 16. 17.
Nocoor Chunder o. Kallv Co-
HAX...I. L. Bep. 1 Cal. 838.
Abdul Kariu «. Manji Hans-
baj I. L. Bep. 1 Bom.
396, 80S.
Rahchandra w. Somar...L L.
Bep. 1 Bom. 809, n.
Ram Chandra v. Jugguthonmo.
H1NEV...I. L. Bep. 4 Cal.
388.
See Hindu Law — maintenance of
widow, e.
Khrishna MoHun v. Okhilmo-
NEE...LL.Bep.8 0aL331.
— Disclosed in Plaint.
See Plaint.
BlSHESWARI V. GOVIND pERSAD...
L. Bep. SLA. 194.
See Uahomedan Law— Dower. 1,
Ranee K haj ooroonissa v. Ranee
Ryeesoonissa L. Bep. 9
LA. 380.
— Goods obtained in Calcutta by Fraud —
Pledge of the Goods to Defendant out of
Calcutta— Leave to sue—High Court has
Sec Jurisdiction. 13.
Kartik Churn Settt ». Gopal.
kristo Paulit.,,1. L. Bep.
3 CaL 364.
— Heard and Determined.
See the cases under Bes Judicata.
D.gmzed by G00gle
DIGEST OF CASES.
CAUSE 07 ACTION- cenld.
Second Mortgagee dispossessed by first
Mortgagee — Subsequent Satisfaction of
the latter and Re-entry by Mortgagor —
Suit by Second Mortgagee.
See Dispossession of Second by
First Mortgagee.
NakainSingho. ShimbhooSingh.
L. Rep. 4 I. A. 16.
Service Walan held on Tenure of Sue
cessive Life Estates— Alienation of Ser-
vice Land by Life Tenant— Suit to
See Service Wat an.
Babaji v. Nana... I. L. Rep. 1
Bom. 635, 636.
Suit for Contribution.
Sec Limitation. 60.
FUCKORADUKEN MaHOMEDb. Ml).
mmaChundbR..!. J,. Rep.
4 Cal. 529.
■ Right to Turn of Worship of Idol.
See Bight to sue. 6.
Debendronath v Odit Churn.
I. L. Bep.3Cal.390.
CAUSE OF ACTION ARISING WHOL-
LY IN BOTOBAY-Nundi drawn, in-
dorsed and delivered at Ajmir, accepted
and dishonoured in Bombay,
Sec Letters Patent (Bombay) 1865,
CI. 12.
SuGANCHAND tf. MuLCHAND 9
Bom. H. 0. Rep. 370; 12
Ibid 113 ; and I. L. Rep.
1 Bom. 23.
CAUSE OP ACTION— SPLITTING OP.
See the cases under Civil Procedure
Code, Act VIII. of 1869, j 7.
Omission to Seek Decree for Possession
in Suit for Declaration of title is not.
Sec Civil Procedure Code, Act
VIIL of 1869, I 7. 1.
Tulsi Ram o. Ganga Ram. ..I, L.
Bep. 1 All. 252.
Omission of Part of Claim— Leave to with-
draw with Liberty to bring Fresh Suit
including Part omitted— Second Suit not
See Civil Procedure Code, Act.
TIIL of 1869, * 7. 2.
Ilahi Baksh v. Imam BaksH...
I. L. Bep. 1 All. 324.
— Omission of Part of Claim through Igno-
rance of Fact caused by Defendant's
Fraud, is not.
See Civil Procedure Code, Act
TUX of 1869 i 7. 3.
Lac h man Singh v. Sanwal Singh.
I. L. Bep. 1 AIL 643.
Separate Accounts of Tradesmen.
See Small Cause Court, Presidency
Town. 4.
CasbuHs. Tkackur Ltladdur...
L L. Rep. 2 Bom. 670.
Simultaneous Suits.
See Civil Procedure Code, Act VHI.
of 1869, { 7. 4. 6.
Kaleshar v. Jagan Nath...I. L.
Bep- 1 All. 660.
RamTaruns. Hossbin Bitksh ..
I. L Bep. 8 Cal. 7B5.
Suit for Declaration of Title without Seek-
ing for Possession — Subsequent Suit for
Possession not barred.
See Civil Procedure Code, Act
VTH. of 1869, f 7. 8.
Dakboi-.Kksho Rai...I. L. Bep.
2 AIL 366.
CAUSE OP ACTION— WHOLE CAUSE
OP ACTION— Nundi payable in Bombay
indorsed and delivered at Ajmir.
See Letters Patent (Bombay),
1868, CI. 12.
SUGANCHUND V- MuLCHUM).. 9
Bom. H. 0. Bep. 270 ; 12
Ibid 113; and I. L.
Bep. 1 Bom. 23.
Place of Contract or Performance.
See Jurisdiction. 14.
Mu HAMMED V. E. I. RY. Co... I.
L. Rep. 1 Had. 876.
CAUSES OP ACTION— Misjoinder of.
See Misjoinder of Causes of Action.
LS.
Guuani if. Ram Charan...L L.
Rep. 1 AIL 665.
jAHOKlMATKe. RaMKun)uN...LIi.
Bep. 4 Cal. S49.
D,gltlzed by G00gle
DIGEST OF CASES.
{ 314 )
CAUSING HURT, AMD BIOTING.
See Offence made up of several
Offence*.
Eupress v. Ram Adhin.. L L.
Hep. 2 All. 139.
See Penal Code, § 430.
Raiikeiskns t. PALANIYAND1...I.
L. Rep. 1 Had. SOS.
CAVEAT-Speeial Citation.
See Administration. S.
Hurri DASS...I. L. Bep. 4 CaL
87.
CAVEAT EMPTOB.
fo Maxima. 1.
See Sale In Execution of a Decree.
16.
The Court of Wards u. Gaya-
PERSAD...I, L. Bep. 3 Ail.
107.
CEBTTFICATE— Commissioner for taking
Accounts, Power of —to grant.
See Account. 3.
RuSTOMJEE tr. KESSOWJEE...I. II.
Bep. 3 Bom. 181.
CERTIFICATE OF AD MINI ST RATION
OF MINORS' ESTATE -Still neces-
sary to enable a Person to sue on behalf
of a Minor.
, See Bombay Minors' Act H. of
1864, i 2.
Murlidharh- Supdu. I. L. Rep.
3 Bom. 148.
i Undivided Hindu Family — Guardianship
—Act XX. of 1S64.] Where a member of an
undivided Hindu family dies, leaving to his
children only his undivided share in the joint
family property, a certificate of administration
cannot be granted under Act XX. of 1S64, nor,
under such circumstances, can a guardian of the
persons of the minor children be appointed ;
but if the deceased has left any separate pro.
perty, a certificate of administration in respect
of such property may be granted, and a guardian
may be properly appointed at the same time.
Guracharva v. Svahirwacharya. Melvill
and Kimball, JJ...I. L. Bep. 3 Bom. 481,
1879.
But see L. Bep. 9 I. A. 27 ; I. L.
Bap. 8 Cal. 606.
1G
CERTIFICATE TO COLLECT DEBTS—
Appeal from Order refusing.
5m Appeal— Civil. 1.
Tarihi Churn o. Bama Soon-
dehee L L. Bep. 1 CaL
138, n.
■^— Mortgage by Holder of.
Sec Power of Grantee of Certificate
to Collect Debts to Mort-
gage-
Muhia v. Balak Rah I- L.
Bep. 2 AIL 513.
Representative of Assignee by Devise of
Debt, cannot sue without— or Probate.
Sm Assignee of Debt.
Shodonb v. Halalkhobr...I. L.
Bep. 4 Oal. 64S.
Security — Appeal.
See Appeal— Civil. 4. 16.
MoNMOHINEE V. KhATTER Go-
PAUL...I. L. Bep. 1 Cal. 127.
RUK111N...I. L. Bep. 1 All. 287.
Unnecessary to entitle Heir of Decree-
bolder to apply for Execution.
See Civil Procedure Code, Act VIII.
oflBBQ, i 208.
Karah Au v. Haliha I. L.
Bep. 1 All. 886.
1, Act XXVII. ef i860 — Proximity of
Kinship and Residence.'] Proximity of kinship
and residence are not such considerations as wilt
warrant a Judge in granting a certificate under
Act XXVII. of i860 to any person in preference
to another who has primi facie the better title
to inherit and to the beneficial ownership of the
debts.
Adopting the principle laid down in Gohind
Persad Talookdar v. Mohesh Chundet Surma
Ghuttack (15 Beng. L. Rep. 35; S. C, 23 W.
Rep. 17) a father's brother's grandson has a right
to obtain a certificate under Act XXVII. of
i860 in preference to a brother's daughter's son.
In the matter of the Petition of Oodaychurn
Mitter. White and Prime},}}. ..L L. Bep.
4 CaL 411, 1878.
SfeJUQOUT Narrayan Sinoh b. Col-
lector of Mahbhoom L L.
Bep. 4 CaL 413.
Under Hindu Law— Inheritance-
Brother's Daughter's Son.
Digitized byGOO^Ie
( 218 )
DIGEST OF CASES.
CERTIFICATE TO COLLECT DEBTS -
contd.
9. ■ Act XX- of 1841— Decree in Adminis-
tration Suit.'] N., a Hindu, died in 1858 without
issue, but leaving a widow. If. in bis life-time
had executed a will of which he appointed D-
and G. (his brother and nephew respectively)
executors, but according to the construction put
upon the will by the Court, they wore only ap.
pointed for a special purpose, and for a limited
period, vt*., to look after and take care of the
natural or adopted son of the testator during his
minority, and only so far as concerned certain
property, and D. and G. took under the will no
further interest or powers as executors. The
only devise in the will was of the testator's one-
third share of certain property to G. A certificate
to collect debts was granted to G. under Act
XXI. of 1841. Subsequently, a creditor of N.
filed a suit for the administration of N.'s estate,
in which suit D and G. were made defendants,
but the widow of N. was not made a party to the
suit. A consent decree was made in that suit,
which directed that the real estate of JV.shouldbe
sold, and the Receiver of the Court be appointed
Receiver to collect the outstandings of If. 'a estate.
In a suit brought by the widow of If. to have
a certain settlement deed construed, and, inter
alia, to establish her right as N.'s widow to one-
third of the property therein comprised, and for
the administration of JV.'s estate, so far as the
same was un administered ;—
Held, that the plaintiff was not bound by the
decree, or the proceedings in the creditor's suit,
and that the only property of If. which could be
affected thereby was the property devised by N.
to G., and any debts of JV., which G. was autho-
rized to collect and get in under the certificate
granted to him. Such certificate only applied to
debts and moveable estate, and did not give G.
any interest in, or authority to receive, or repre-
sent immoveable estate; and as D. and G. had
no right to recover and no interest in N.'s im-
moveable estate, any decree made in a suit to
which they only were defendants, could not
affect the immoveable estate or the person really
interested therein ; and though the plaintiff had,
in her plaint, asked that her present suit should
be taken as supplemental to the said creditor's
suit, she was not under the circumstances abso-
lutely bound by that portion of her prayer, even
if the suit could be so taken. Th eepoora soon-
DERir Dosske e. Debendronath Taqosee.
Pontifex,] L I* Eep. 2 Cal, 40, 1878.
CERTIFICATE TO COLLECT DEBTS—
3. Act XXVII. oflUo— Question of Va-
lidity of Alleged Adoption— Title.] The appel-
lants, representing themselves as the gyantets
(cognates) of a deceased Hindu who had died
forty years before, applied for a certificate under
Act XXVII. of i860 to collect the debts due to
his estate. The application was opposed by
the respondents, whb claimed a similar certi-
ficate for themselves as the widows of an alleged
adopted son of the deceased : —
Held, that neither of the applicants was enti-
tled to a certificate, the presumption being that
there were no debts due to the deceased which
could be recovered, owing to the operation of
the law of limitation.
Although in the case of rival applications for
certificates to collect debts, under Act XXVII.
of i860, the Judge is bound to inquire which
itle is made out for the purposes of the legal
•equirements of the Act, yet no question of title
can be judicially determined between the parties
as the result of the inquiry made under that
Act, and the object of the applications in the
present case was to obtain a judicial determina-
tion of the question whether the alleged adop-
tion had taken place or not; a question which
could only be decided in a civil suit. Koohj
B shaky Chowdhrv v. Gocool Ch under
Chowdhrv— Kirmp and Moms, JJ...L L. Rep.
3 Cal. 616. 1878.
4. Act XXVII. of J860— Private Estate
of Deceased Mohunt — Spiritual Son— Spiritual
Brother.] The person entitled to collect the
outstanding debts due to the private estate of a
deceased Mohunt, is the spiritual son (the Chela),
and not the spiritual brother (Guru-bhai) of the
deceased. In re Bkyrub Bharuttee Mohunt (21
W. Rep. 340) distinguished on the ground that in
that case the debt was not a personal one.
D UK A RAM Bharti v. LuCHmaN Biiarti. Anslie
and Broughton, JJ...L L. Rep. 4 Cal. 964 ; 4
Cal. Eep. 49, 1679.
CERTIFICATE OF JURY— Cos? certified by
Advocate-General — Confession improperly received
in Evidence.'] On a case certified by the Advo-
cate-General under CI. 26 of the Letters Patent
(Calcutta), 1865, to consider whether a certain
confession made by an accused person bad been
properly received in evidence against him, the
Court having held that the confession was in-
Diaxized by Google
DIGEST OP CASES.
( 218 )
CERTIFICATE OF JURY— con td.
admissible and ought not to have been received,
— a certificate by a majority o£ the Jury who
tried the case, to the effect that it the confession
had not been in evidence, they would have given
a verdict acquitting the prisoner, was tendered
but rejected by the Court. Reg. v. Hurribolb
ChuhDBR Ghose, Garth, C. J., and Pontifex,}...
LI* Rep. lCaL807; wp. 219, n.
S. C under Evidence. 18.
CERTIFICATE PROCEEDINGS UN-
DEB, BENGAL ACT VII. OF 1808-
Jurisdiction of Civil Court to inquire into Lega-
lity of.'} In a suit for arrears of rent it ap-
peared that the plaintiff held possession of the
land out of which the rent issued under a potta
granted by the owner subsequently to the issue
out of a Collector's office of a certificate under
Bengal Act VII. of 1 868 against the grantor.
The defendant was the purchaser of the land in
question at the sale held under that Act, and
Pleaded that the plaintiff's grantor had no power
to grant the potta after the certificate had been
served. The Court of first instance disbelieved
the witness called to prove service of the certi-
ficate, and found that no notice was served on
the plaintiff's grantor under ( tS of the Act, and
therefore upheld the potta and gave the plaintiff
a decree. The District Judge on appeal rever-
sed this decree, considering that a Civil Court
could not say that the procedure followed by
the Collector was irregular, and that the proceed-
ings were null and void, but must, as nothing ap-
peared to the contrary, assume that they were
regular, and that the party aggrieved could try
the correctness of the Collector's proceedings by
a regular suit. On appeal to the High Court !•»
Held, reversing the District Judge's decree, that
in order to meet the plaintiffs case effectually, it
was necessary that the defendant should prove the
certificate proceedings in a regular way, and the
plaintiff was at liberty to question the legality of
those proceedings and to show that they were
irregular and ineffective. The District Judge,
therefore, was bound to examine the proceedings
of the Collector, and to see that they were legal
and regular, as to constitute a legal bar to .the
plaintiffs grantor transferring his interest to the
plaintiff; and the Judge was not at liberty to
make any presumption in favour of their legality
or correctness. Hem Lotta v. Sreedhonk
BotOOA. Garth, CJ, and Birch,]...!. L-Rep.
8 CaL 771, 1877.
CERTTEIOATE (OF REGISTRATION-
Effect of.
See Registration. S3.
Mahomed Ewaz v. Brij LaLl.,.L.
Rep. 4 I. A. lee.
CERTIFICATE OF BALE, REGISTRA-
TION- OF.
See Registration. 4.
Kanahia Lal e. Kali Din. ..I, L.
Rep. S All. 393.
CERTIFICATED AND UNCERTIFICA-
TED GUARDIANS— Power of.
See Alienation by Guardian. 8.
Ram Chunder a. Bkojohath...X
Xi. Rep. 4 Oal. 938.
See Mortgage. 80. 31.
Abhasee Begum t. Moharanee
Rajroop.,.1. L. Rep. 4 Cal.
88.
Dbbi Dutt V- SUBOODRA...I. L.
Rep. a CaL 383.
See Sale by Guardian.
Soondek Narain a. BennudRam.
I. L. Rep. 4 CaL 76.
See Xabomedan Law— Sale by
Guardian.
Hasan Ali v. Mehdi Husain...L
L. Rep. 1 AIL S88.
See Review. lO.
MadhoDasv. Rukman Sevak...
I. L. Rep. 3 AIL 387.
PURCHASER — SUIT
AGAINST.
See Civil Procedure Code, Act
vni. of 1859, ( 380. 1. a.
LOKKKB NaKAIN v. KALVPUDDO...
L. Rep. 2 I. A 154.
Pueah Mal o. Ali Khan... I. L.
Rep. 1 AIL 386.
CERTIFIED PURCHASER— SUIT BY.
See Civil Procedure Code, Act VHX
of 1859, ( 260. 1. 3.
Lokhre Narain «. Kalypuddo...
L. Rep. 8 L A. 164.
Jan Muhamad v Ilahi Baksii...
X L. Rep. 1 AIL 290.
CESSATION OF SERVICE — Right to
ssume or assess Service Lands on.
See Ghatw ali Tenure.
Lbelanuno Singh * Thakoor
MUNRUNJUN...I. L. Rep. 8.
Oal. 3BL
D,gltlzed by G00gle
DIGEST OF CASES.
CESSATION 07 SERVICE— amtd.
See Resumption. 2.
Keval Ruber V. TaUKWDAREE
Settle a ent Officer. ..I. L.
Hep. 1 Bom. S86.
CESSER OF RE8TD ENCE.
Sh Will. 10.
Tagoee t. Tagorr...L. Rep.
1 1. A. 387.
CESSES— Zemindari.
Sa Custom. 4.
Lachaman- Raj e. Akbar Khan...
I. L. Rep. 1 All. 440.
■ 'Zemindari — Suit [or — Jurisdiction ot Mo-
fussil Small Cause Court.
See Small Cause Court — Hofuseil.
Nanku ». Board of Revenue...
L L. Sep. 1 AIL 444.
- Zemindari Right to — Suit for Declaration
See Declaratory Decree. 8.
Akbar Khan o. Sheoratah
I. L. Rep. 1 AIL 373.
—Act XIX. of 1873 (AT. W.
P. Land Revenue Act), f 66.] A cess leviable
m accordance with village custom which
recorded under the general or special
of the Local Government cannot, under f 66 of
Act XIX. of 1873, be enforced in a Civil Court.
A custom to be valid must be ancie
have been continued and acquiesced
must be reasonable and certain.
The fact that a cess leviable in accordance
with village custom has been recorded by
settlement officer is important evidence of the
custom, but not conclusive proof of it. La
V. HlRA Singh. Stuart, C. ]., and Old-field, J...
I. 1. Rep. 9 All. 49, 1878.
CESSION OP TERRITORY— Prerogative of
the Crown.] The Crown is competent to cede
territory in British India in time of peace, to a
foreign prince or feudatory, without the interven-
tion of the Imperial Parliament. The prerogative
of the Crown is exercised with the advice and
through the agency of the responsible Ministers
of the Crown ; and when a cession of territory is
proved to have been made by the Government of
India, and accepted by the Secretary of State as
CESSION OP TRRRTTORT-fimW.
fulfilling instructions conveyed to the Govern-
ment of India, an to have been approved of by
Majesty's Government, that is sufficient
evidence of a cession by the Crown ; and when it
proved that a cession has been so made, it is
it comptent to the Civil Courts in British India
enquire whether in the particu instance the
ercise of the prerogative was called for.
In determining whether or not there has been
cession of territory in full sovereignty, the
surt will look* not to the documents by which
the transfer is made as operating by their own
force to transfer sovereignty, but will look to
what was done, though the language of the do-
may be considered as evidence of what
was intended to be done. The circumstance that
the transfer was recorded in a sanad, is not in-
ipatible with a cession, nor is it inconsistent
with a cession of sovereignty that it should be
accompanied by conditions for the benefit of the
inhabitants of the ceded territory, *. g., that
existing rights and tenures should be respected.
The Nawab of Rampur is in possession of such
powers of sovereignty as are enjoyed by the feu-
datories of the Empire, and the State of Rampur
is held by him, subject indeed to the extraordi-
nary control of the Paramount Power, but other-
wise independent ; and such sovereignty is not
inconsistent with the name " Jaghir " which was
applied to the territory before the cession of
Robilkhand, and has since been retained.
By a sanad dated the 13rd June i860, execu-
ted by the order of the Governor-General, and
ratified and confirmed by the Secretary of State,
19 villages in Bareilly and Moradabad were, in
consideration of services rendered by him during
the Mutiny, granted to the Nawab of Rampur
and " annexed to the old territory of the Nawab
on the same conditions on which he holds that
territory." Possession of the villages wasgiven
to the agents of the Nawab, to whom also the
revenue records were delivered, and from the date
of the grant, administrative and judicial func-
tions were exercised in the village under no
other authority than that of the Nawab, who, in
answer to a communication from the Lieutenant-
Governor with reference to a petition presented
to the Government of India by the Zemindars
of the transferred villages for the maintenance
of their proprietary rights, assured the Lieute-
nant-Governor that the rights of the petitioners
should be respected.
Digitized byGOO^Ie
DIGEST OF CASES.
CESSION OF TERRITORY— conid.
In a suit brought in 1876 on a mortgage bond
executed in 1871, mortgaging, among other
property, these 19 villages, to enforce the
mortgage debt by sale of the villages : Held, that
the villages had passed by valid cession out of
British territory before the institution of the
suit, and that the Court of the Subordinate
Judge of Bareilly, in which the suit was institu-
ted, had no jurisdiction to order a sale of them.
Lachhi Nabain ». Raja Pektab Singh. ..I, L.
Bap. a All. 1 1878, F. B.
2. Prerogative of the Crown— Transfer
of Jurisdiction — Concurrence of Imperial Parlia-
ment—Evidence Act 1. of 1872, f 1 13.] In the
province of Kattywar, subject in its entirety
since 1820 to the supreme authority of the
British Government, the Thakoor of Bhownug-
gnr was possessed of certain talooks, which had
never been brought under the ordinary British
administration, and in which the Thakoor
exercised a wide civil and criminal jurisdiction,
subject only to the supervision, laws and regu-
lations of the Kattywar Political Agency. He
also possessed within the same province othei
talooks. including Gangli, which in 1S02 had
been ceded to the British Government, and
1815 had been placed under the ordinary jur
diction of the British Courts of the Bombay
Presidency. In 1S48, Gangli was included
lease granted by the British Grovernnmen
the Thakoor, which, by mutual agreement, dated
33rd of October i860, was cancelled, and thei
under the British . Government conceded, "
a favour, and not as a right, the transfer of
Gangli and other territories from the disti
of Gogo subject to the regulations, to 1
Kattywar Political Agency." Delay having
arisen in completing this transfer, the Governor-
General in Council, on the 31st of May 1865,
authorized its completion, " Her Majesty's
Secretary of State having decided that Katty.
war was not British territory." Thereafter, on
the 29th of January 1866, it was notified, in
effect in the Bombay Government Camette, that
Gangli, by reason of the cession thereof by the
British Government to the Thakore of Bhow-
nuggur, was removed, from and after the 1st
of February of that year, from the jurisdiction
of the Revenue, Civil and Criminal Courts of the
Bombay Presidency, and transferred to the super,
vision of the Political Agency in Kattywar, on
the same conditions as to jurisdiction as the
villages of the talookaof the Thakoor of Bhow-
CESSION 07 TERRITORY-™-.;,* .
nuggar heretofore in that province. And on the
4th of January 1873 (after the Evidence Act I.
of 1872 had come into operation), it was notified
effect in the Indian Gazette that Gangli Was,
1 the 1st of February 1866, ceded to the State
Bhownuggur.
Previous to the notification in 1866, a decree
for redemption of mortgaged lands in Gangli was
made by the British Court of Gogo, and reversed
by the Judge of Ahmedabad, the case being
subsequently remanded by the High Court of
Bombay to the Judge, who thereupon restored
the original decree, notwitstanding that in the
iterval the first- mentioned notification had
appeared. The High Court confirmed this order,
holding, on review, that the power to cede terti-
was not one of the powers to which the
Secretary of State suceeded under the Act
(Stat. at & 22 Vict., C 106,) transferring the
Government of India to Her Majesty, as it was
not one of the powers possessed by the East
India Company, either alone, or by the direc-
tion and with the sanction of the Commissioners
of the Affairs of India.
And that the Indian Legislature could not
make, and the Crown could not sanction, a law
having for its object the dismemberment of the
State in time of peace, as such a law must of
necessity affect the authority of the Parliament,
and those unwritten laws and constitutions of
the United Kingdom of Great Britain and Ire-
land whereon depends the allegiance of persona
to the Crown of the United Kingdom.
And that , 1 13 of the Evidence Act (I. of 1872)
was, therefore, not protected (though not dis-
allowed) by Stat. 24 & 25 Vict., C. 67, f 24, and
the direction therein contained that a notifica-
tion in the Gatette of India, that any portion of
British teritory had been ceded to any Native
State, Prince, or Ruler, shall be conclusive proof
that a valid cession of territory took place on
the date mentioned in such notification, could
not be followed.
Held, on appeal from this last- mentioned
order that the appeal must be dismissed, but
without reference to the question whether the
law laid down by the High Court was correct,
though their Lordships entertained such grave
doubts (to say no more) of the soundness of the
general and abstract doctrine laid down by
the High Court, as to be unable to advise
Her Majesty to rest her decision on that
ground. But in point of fact there had been
oogle
DIGEST OF CASES-
CESSION OF TERRITORY— tttihJ.
no cession of territory. The language of the
above agreement of i860 was not the language
of cession. It was frimi facie nothing more
than an engagement for the transfer of the
places mentioned (including Gangli), which were
then, beyond question, British territory, from
a regulation province to an extraordinary juris.
diction. Nor would the opinion attributed by the
Gove mo r -General in Council in 1S65, when
authorizing the completion of the transfer con-
templated by the agreement of i860, to the
Secretary of State for India, via " that Kattywar
was not British territory," even if it bad been
proved to have been expressed, and to have been
well founded, have the effect of converting a
transfer of certain British territories from ordi-
nary British jurisdiction " to the supervision,
laws, and regulations of the Kattywar Political
Agency," into a cession of British territory to a
Native State. Such a cession would be a trans-
action too important in its consequences, both
to Great Britain and to subjects of the British
Crown, to he established by any uncertain in-
ference from equivocal acta.
A re-arrangement of jurisdiction within
British territory by the transfer of British terri-
tories from an ordinary British jurisdiction to
the supervision, laws, and regulations of a Politi-
cal Agency, by excluding such territories from
the British regulations and codes theretofore in
force therein, and from the jurisdiction of all
the High Courts, with a view to the establish-
ment therein of a native jurisdiction under
British supervision and control, cannot be
effected without a legislative Act.
Such transfer of jurisdiction, even if valid
without a legislative Act, would not depri'
Crown of its territorial rights over the
fened district, or the persons resident therein of
their rights as British subjects.
The jurisdiction, therefore, of the British
Courts of the Bombay Presidency over Gangli
rested, in 1866, on British Statutes, and could
not be taken away (as long as Gangli
British territory) so as to substitute for it any
native or other extraordinary jurisdiction,
cept by legislation in the manner contemplated
by 3 * 4 Wm. IV., C 85, § 43, 24 & as Vict.,
C. 67, § 3J, 34 & 35 VicL, C. 104, f 9.
The Governor -Genera I in Council being pre-
cluded by Stat. 24 & as Vict., C 67, § aa, from
legislating directly as to the sovereignty
CESSION OF TERRITORY— amtd.
dominion of the Crown over any part of its
territories in India, or as to the allegiance of
Ish subjects, cannot, by any Legislative Act
purporting to make a notification in a Govcrn-
i< Gatette conclusive evidence of a cession
of territory, exclude inquiry as to the nature
nd lawfulness of that cession.
If Gangli had by valid cession ceased to be
British territory, the foundation of the jurisdic-
: British Courts of the Bombay Presi-
dency over the subject-matter of this suit, and
the parties thereto, being territorial, could no
longer be exercised (whatever might be the
stage or condition of the litigation at the time),
after such a valid cession had been made.
Damodhar Gordhan ». Deoram Kanji...Ii,
Rep. 3 1 A. 103, 1870 ; S. C. I. L. Rep.
1 Bom. 397 ; L. Rep. 1 App. Ca, 333.
CESTTJI-aUE-TRUST CREDITOR—
Proof by— in Insolvency.
See Insolvency. 7.
Vabdala Charri...I. It, Rep. S
Mad. 10.
CHAKEHAN lAXtoB- Ejectment— Occu-
pancy Right."] A distinct refusal by a tenant to
perform services incidental to his holding ren-
ders him liable to ejectment.
Simble.— No right of occupancy can be ac-
quired in lands held under a service tenure-
HlIRROGGOBIN RaHA V- RAMKUTNO DeV. Garth,
C. J., and McDonnell, J...1 L, Rep. 4 OaJ. 67,
1878.
CHAXWADI— Office of.
See Disturbance of Office. 1,
Shankara *. Hamma...L Ij.Rop.
8 Bom. 470.
CHAMPERTY.
Set lienor and Lessee.
LoKENATH GHOSK «. JtJOOBUNDHOO
Roy... I. L. Rep. 1 Cal. 997.
l.—Maintenantt— Undue Influence — Con-
sideration—Novation.^ ^..astranger.advanced
money to enable B., C-, and D., childless Hindu
widows, on a false claim of inheritance, to take
the estate of the family from £., the rightful heir ;
A. got the entire control of the suit and of the
affairs of B., C, and D.\ and B., C, and D.
executed an instrument purporting to secure
to A. a. large sum of money on their obtain-
ing the property, and also gave him a bond for
s sum alleged to have been advanced by him.
Diarized by Google
DIGEST OF CASES.
B., C, and D. having agreed with B. to withdraw
the suit upon terms of compromise, E. tu in-
duced to execute a bond to A., by which E. in
effect engaged to pay to A., in discharge of
his claim upon B., C, and D., a fixed sum,
which was claimed by A. as the amount due to
bin ; and A. agreed to abandon his claim upon
them on such payment, retaining the securities
be held from them till £.'s bond was satisfied.
At the time of entering into this bond, E. had
only just attained his majority, was without
proper counsel or assistance, and was threatened
by A. with the consequences of not immediately
acquiescing in his demand, the threats not being
of bodily violence but of carrying on the suit to
bis ruin ; and such threats overcame bis free
will, and induced him, contrary to his own
judgment and sense of right, and without any
evidence that the sum claimed was due, to
execute the bond.
On a suit by A. to enforce the bond i—
Held, ist, that, assuming that there was a
real substantial debt due to A. from B., C, and
D. on an agreement to which no objection
could be taken ; that there was a bond fide
arangement by which B., C, and D. were to have
their suit dismissed ; and that one term of that
arrangement was that they should be relieved
of the debt due to the plaintiff; yet the transac-
tion would not amount to a novation. B., C.
and D. were not, by the transaction, released
altogether from the debt which they had incurred
to the plaintiff, nor was the plaintiff's position
altered by reason of his having lost bis remedy
against them ; for on the face of the bond exe-
cuted by E., he, A., was to retain the securities
against B-, C, and D. until the bond was paid ;
the contract on his (A.'s) part was, in fact
rather an agreement to abandon his remedy
against B., C, and D. on the payment of the
Rs. 67,000, than an actual abandonment at the
time of the transaction.
tndly, though the law of champerty or main.
tenance is not the same in India as it is in
England (the Statute of Champerty being part
of the Statute law of England, and of no effect in
the Hofussil of India) — and the Courts of India
admit the validity of many transactions of that
nature, which would not be recognized or treated
as valid by the Courts in England, yet the Indian
Courts will not sanction every description of
maintenance. Administering — as those Courts
are bound to administer —justice according to
the broad principles of equity and good con-
science, they will consider whether the transac-
tion is merely the acquisition of an interest in the
subject of litigation bona fide entered into, or
whether it is an unfair or illegitimate transaction
got up for tbe purpose merely of spoil or of liti-
gation, disturbing the peace of families, and car.
ried on froma corrupt or other improper motive)
and the Courts would be exercising a very unsound
discretion, and acting on a very erroneous prin-
ciple, if they were to allow a stranger to inter-
fete in family affairs, by an agreement between
him and the real heirs that, if they should esta-
blish their claim, he should be entitled to a share
of the estate- Applying these principles, quart
whether the plaintiff could have recovered on
the agreement between himself and B., C, and
D., if the question had arisen between him and
them after he had got the estate for them ; but
boweverthat m ight be i t wo u Id be contrary to every
sound principle of justice and policy to permit
tbe plaintiff, who had got up, or at all events
intervened in, a suit in which he had no neces-
sary concern ; who bad made himself dominus
litis in that suit, and acquired over the plaintiffs
in it (B., C, and D.) the power of preventing
them from doing what they felt to be right and
just (>-«., of compromising and bringing about
a family arrangement}, and from interested and
corrupt motives was exercising that power, to
make that power tbe means of extorting a large
sum of money from the person whose title had
been unjustly challenged.
ydty, that the transaction was not one entered
into between two persons, each of whom was
capable of taking care of himself ; the defendant
being, at tbe time of the transaction, a boy of
iS, without proper counsel or assistance, and
prevented from being a free agentby the threats
held out to him; and that the bond, therefore,
was wholly void as against E., and could not be
made to stand as a security for what might
really have been advanced by A. to B., C, and
D., as nothing was ever due by E. to A., and
there existed no privity of contract between them.
— Chedambaka Chetty e. Runga Krishna
Muthu Vira Puchaiva Naickar...L. B,ep . 1
X A. 841 ; IS Bang. It E. 609 ;
83 W. R. 148, 1874.
3. Maintenance— Agreement to short
the Subject of Utigatum, wktn against Public
Digitized byGOO^Ie
DIGEST OP CASES.
CHAMPERTY —contd.
Policy^Non-Liabiiity of Stranger to the Record
far Costs of Sutl, in Absence of Malice and Want
of Probable Cause.'] The respondent was, by an
agreement between him and M . and his wife,
which recited an apparently good title of the
latter to certain property, apointed the attorney
and mooktear of M. and his wife to conduct certain
suits to recover that property from the appellant,
and he managed the said suits, and made all the
necessary advances for that purpose and for the
subsistence of M. and his wife, having stipulated
that all the advances should be repaid with
interest at 11 percent., and that as remuneration
tor his trouble and risk, the respondent should
have a third part of the clear net profits of the
suits, and, as security, should receive all moneys,
and take possession ot all lands recovered. He
was oeither an original nor an added party to the
suits, which, on appeal, were decreed in favour
of M. and his wife by the Higb Court, but were
afterwards dismissed by the Privy Council with
costs, which M. and his wife were utterly unable
to pay- Pending that appeal, the respondent
purchased the property in suit, and thereafter
conducted the appeal in his own interest.
In an action brought by the appellants again!
the respondent to recover the amount of cost
incurred by them in the above litigation", it wa
alleged, but not proved, that the suits wer
brought or instigated by the respondent mall
ciousty and without probable cause ; and failing
such proof, it was contended (i) that the agree
ment and acts of the respondent amounted tc
champerty, or were otherwise illegal as being
against public policy, and that the appellants
had suffered special damage from them ; and (2)
that the respondent was the real actor in the
former suits and had an interest in them, and
was, therefore, responsible for the costs of them.
Held, that the English laws of maintenance
and champerty are not of force as specific laws
in India. So far as concerns the Mofussil, thi
is no ground on which it can be contended that
those laws are in force there ; and the condition
of the Presidency towns, inhabited by various
races of people, and the legislative provision
directing alt matters of contract and dealing
between party and party to be determined in
case of Mahomedans and Hindus by their c
laws and usages respectively, or where only
of the parties is a Mahomcdan or Hindu by
the laws and usages of the defendant, furnish
CHAMPERTY— co n td.
reasons for holding that these special laws are
inapplicable to the Presidency towns.
A fair agreement to supply funds to carry on a
suit in consideration of having a share of the
property, if recovered, ought not to be regarded
as being, perse, opposed to public policy. But
agreements of this kind ought to be carefully
watched, and when found to be extortionate and
unconscionable, so as to be inequitable as
against the party ; or to be made, not with the
bond, fide object of assisting a claim believed to
be just, and of obtaining a reasonable recom-
pense therefor, but for improper objects, as for
the purpose of gambling and litigation, or of
injuring or Oppressing others by abetting and
encouraging unrighteous suits, so as to be con-
trary to public policy, — effect ought not to be
iven to them. Whenever the right of the par-
es to this agreement as between themselves,
light be, it did not constitute a punishable
offence, and could not give to the appellants, who
strangers to it, a right of action against the
respondent.
Such agreement created no legal privity be-
tween the appellant and respondent, from which
a promise could be implied on the part of the
respondent to pay the appellant the costs of the
former suit on which an action of contract could
be founded ; nor did it establish a legal wrong,
for the former action was brought without im-
proper motives and upon reasonable cause.
An action cannot be maintained against a
third person on the ground that he was a mover
of, and bad an interest in, the suit, in the absence
of malice and want of probable cause. Cotterdl
v. Jones (11 C- B. 73s) approved.
Where it appears that the plaintiff in a suit is
1 fact suing on behalf of another person who
not a party to the record, the ordinary practice
to require security for costs, and to stay pro-
ceedings till it is given.
The fact that an application to the Court,
under ( 73 of Act VIII. of 1859, to make a stran-
ger who has an interest in the suit a co-plaintiff,
was rejected, will not give ground for an action
against such stranger for costs incurred in the
suit which would not otherwise lie. Ram Coo-
mar Coondoo e. Chundbr Canto Mookkbjke.
L. Sep. 4 I. A. 23, 1876 ; I. L. Sep. S CaL
238 ; L. B. 2 App. Co,. 166.
' D.gmzed byGOOgle
DIGEST OE CASES.
CHAMPEST"?— ™*r<f.
S. — Maintenance and Champerty.'] In
Jane 1869, P., the liquidator of the National
Financial Company, compromised the claims of
the Company against the defendant Mulji Kanji,
for Rs. 15,000. P. was induced to agree to this
Compromise in consequence of representations
made to him by the friends of Mulji Kanji, that
the latter had no available assets and could not
meet his liabilities. In 1878 the plaintiff, who
was neither a creditor nor shareholder of the
Company, alleging that the compromise had been
fraudulently effected, and that the defendant
Mulji Kanji, at the time of the compromise had
been, and still was, possessed of property amply
sufficient to pay off his debts, induced the
liquidator of the Company to assign to him the
Company's claim against Mulji Kanji, and
brought this suit praying that the compromise
with P. might be declared not binding, and that
Mulji Kanji might be ordered to pay the plain-
tiff, as assignee of the National Finance Com-
pany, the sum of Rs. 1,61,500,
The liquidator, by a letter of the 3rd of Octo-
ber 1878, addressed to the plaintiff's solicitors,
after recapitulating the information he had pre-
viously given relating to the compromise of the
claim against Mulji Kanji, stated as the condi-
tions on which he accepted the con side ratio n-
money for the assignment to be, (1) that even if
it should appear that there was no spark of assign-
able interest remaining in the Company, the con-
sideration-money should not be refundable ; (z)
that he should execute an assignment of the Com-
pany's claim against Mulji Kanji, such as it was
with all its defects, there being no warranty or
his part that the Company had any assignable
interest, and that the assignment should contain
the usual power for the plaintiff to
Company's name in any proceeding he might
be advised to adopt J and (3), that the plaintiff
should indemnify the Company and the liquidator
On the 4 1 st January 1879, the liquidatt
cuted an assignment deed which recited the
compromise, and that it was alleged on behalf
of the plaintiff to be null and void, and the
liquidator had consented to assign the Com.
pany's claims against Mulji Kanji to th«
plaintiff; and stated that the liquidator mi
unwilling to embark in litigation at hit own risl
when he entered into the above transaction with
the plaintiff, and concluded with a covenant by
17
CHAMPERTY— could.
the plaintiff to indemnify the liquidator against
all costs. The liquidator did not make an allega-
tion of fraud in respect of the compromise of
Mulji Kanji's claim, nor did he verify the plaint
which alleged fraud: —
field, that according to the English law the
al test in cases of this nature was whether
the transaction was a doni fide purchase of the
matter in dispute, or one for the purpose of
intaining or proceeding With the litigation j
and where such is the case, Courts of Law and
Equity will treat the transaction as an infringe-
ment of the laws against champerty and main-
tenance, and as having neither validity between
the parties thereto, nor conferring any right of
action against third parties. And though the
principles to be deduced from the decision of
the Privy Council in Sam Coomar v. Ckunder
Canto Mooierjee (L. Rep. 4 I. A. 46) and Che-
dambara Chstty v. Ranga Krishna Naickar (L.
Rep. I I. A. 341) are more elastic than the rules
which are to be gathered from the English
on the law of Maintenance and Cham-
perty, and though it may be that some trans-
actions, effected under special circumstances,
albeit for the purpose of and with a view to
litigation, may be supported in India — yet, the
present was a case of a stranger officiously
interfering for reasons of his own, and in no way
at the request or even suggestion of the com-
pany or liquidator, in a matter in which he had
himself no connexion whatever, with the sole
object of enabling himself to dispute transac-
tions which occurred ten years ago, and in which
independently of the assignment he had no
interest whatever, the assignment being effected
with a view to litigation by a person himself
unwilling to litigate. A suit of such a nature
and instituted under such circumstances fell
within the class of cases which both the English
law and the principles enunciated by the Judi-
cial Committee alike forbid. Goculdas Jaomo-
HADASV. LAKUtDAS Khimji. Sargent, J...L L.
Bap. S Bom. 403, 1879.
OHANQE IN FQBV OF BUTT.
See Amendment of Plaint.
See Land Tenures in Kaaara.
See Suit for Confirmation of
PoBaeesion.
by Google
( an )
DIGEST OP CASES.
CHABGE— Amendment of— Sanction to pro.
secute under { an, Penal Code, authorizes
Charge under ( 192.
See Criminal Procedure Code, Act
X. of 187S, f 143. 1.
Empress g. Nipcha...L It. Rep.
4 00,1. 712.
—— Vagueness of — of False Evidence.
Set Criminal 1'rocedure Code, Act
X of 1873, , 471. 2.
Reg. t. Baijoo Lall...I. L. Bep.
1 Cal. 460.
— Vagueness of—under i 217 of Penal Code.
Set Charge. I.
Ihfx. «. Baban Khan X. L>
Bep. 3 Bom. 142.
— Vagueness of — under {.{ 392 and 294 of
Penal Code.
See High Court Criminal Procedure
Act X. of 1875, f 147.4.
And see Charge. 9,
Reg. v. Upbndronath Doss.... I.
L. Bep. 1 Cal. 306.
— Withdrawal of.
See Criminal Procedure Code, Act
Xofl878,f.910.
In re Mi:sE,..X L. Rep. 3 Bom,
653
1. Vagueness of Charge,'] The accused
was charged under ( 3i 7 of the Penal Code ; but
the charge did not state distinctly what the
direction of the law was, which he had disobeyed,
or how he had disobeyed it.
Held, that the charge did not give the accused
the information which the law intended him to
have of the particular offence, expressed cir-
cumstantially, to which he was called upon to
answer ; that the accused having been convicted
on such charge so vaguely expressed, the prose-
cution on appeal must be limited to the sense in
which the charge was understood at the trial.
Ihfx. «. Babah Khan I. L. Bep. S Bom.
143.
9.^— Penal Code, ff 292-294 — Specific
Charge^ Semite — That a charge under f f. 292
and 294 of the Penal Code should be made specific
in regard to the representations and words alleged
to have been exhibited, uttered, and to be ob-
scene ; and the Court, in its decision of the matter,
should state distinctly what were the particular
representations and words which it finds on the
CHARGE— contd.
evidence the accused persons had exhibited and
uttered, and which it adjudges to be obscene
within the meaning of those sections. Reg. v.
Upbndronath Doss. Phear and Markby, JJ....Z.
L. Bep. 1 Cal. 856, 1876.
S. C. under High Court Criminal Pro-
cedure Act X of 1875, (. 147. 4.
CHARGE OK LAND— Transfer of the
See Covenant running with tho
Land.
Abadi Begums. Asa Ram. ..X. L.
Bep. 8 AIL 189.
CHARGES— Joinder of.
See Criminal Procedure Code, Act
X Of 1879, ,482.
Reg. v. Hanmanta...L L. Bep.l
Bom. 810.
CHABITABLE BE ftTJEST— Uncertainty—
Void Request.
See Hindu Law— Will. 3.
Surbomuncola v. Mohendro-
nath I L. Bep. 4 Cal.
008.
See Will. 7.
DwARKAHATH *. BuRRODA PER-
sauc.L L. Bep. 4 Cal. 448.
CHABITABLE TBTJBT— Purchaser with
Notice of.
Set Hindu Law— Will. 10.
MANIKLAL V. MANIKSHAH...X. L.
Bep. 1 Bom. 380.
CHARITY— Bequest to a— which has ceased
to exist — Cy-pres.
See Will. 11.
Mayor of Lyons v. Advocate
General of Bengal L.
Bep. 8 I. A. 83 ; X. L.
Bep. 1 Cal. 803.
CHABITT PBOPEBTT-Alienation of, by
Trustee.
Set Breach of Trust.
Maniklal «. Manikshah.,.1. L.
Bep. 1 Bom, 368.
CHARTER ACT.
See Stat. 94 ft 30 Vict., C. 104,
CHEATING — Compounding Offence of.
Reg. b. Lakhu I. L. Bep. 1
Bom. 108, n.
D.gmzed by GoOgle
(
)
DIGEST OF CASES.
CHELA-— Right of— to Certificate to collect
Debts due to Private Estate of Deceased
ttohunt, to Exclusion of Guru-Mai.
See Certificate to collect Debts. 4.
DUKHARAH9. LUCHHUN I. L.
Rep. 4 Col. 064.
— — • Right of— to succeed to Guru.
See Hindu Law— Inheritance— Sa-
niasis.
Madho Das b. Kamta Das I-
L. Rep. 1 AIL 536.
CHEQUE IN PAYMENT OF DEBT -
Tender of— Costs.
Bee Tender. 1.
Boyle Chunu Singh ». Moulard.
L L. Rep. 4 Cal. 572.
CHILDLESS WIDOW— Daughter's Succes-
sion by Survivorship not defeated by
becoming a.
Set Hindu Law — Inheritance—
Daughters. 9.
Aumirtoi.au. Bose n. Rajone-
kant Miti'er L. Rep, 9
I. A. 118.
CHILDLESS WIDOWED INDIGENT
DAUGHTER— RIGHT OF, TO IN-
HERIT—Benares Law.
See Hindu Law — Inheritance —
Daughters. 3.
Srimati Uma Devi v. Gokoola-
NAND...L, Rep. 6 I. A. 40;
I. L. Rep. 3 Cal. 687.
CHILDLESS WIDOW OF PREDE-
CEASED SON OF A FARSI IN-
TESTATE.
See Act XXI. of 1865, f 5.
M. K. Davur v. Mithibai...I. L.
Rep. 1 Bom. 80S.
CHOSE IN ACTION— Assignment of.
See Assignment of Chose in Ac-
tion.
Kakhaiva Lal t. Dohihgo...L
L. Rep. 1 All 732.
CIRCULAR ORDERS OF THE CAL-
CUTTA HIGH COURT, Nos. 41 OF
1808 (2nd OCTOBER) AND 25 OF
1870 (96th AUGUST)— Power of Dis-
trict Judge to interfere with an Order for
Local Investigation.
Sea Local Investigation.
Nnton Kris h no Roy «. Wooma-
hath Mookerjek...!. L.Rep.
4CaL718.
CIVIL PROCEDURE CODE, AOT TUX
OF 1859-f a.
— J 5 — Dwellings Residence.
See Jurisdiction, 8.
Fatiha Began ». SakiNa Begam .
I. L. Bep. 1 AIL 61.
— i 5— Redemption Suit— Lands situated in
different Districts.
See Jurisdiction. 4.
Giedrariv. Sheoraj...!. L. Rep.
1 AIL 481.
— § 6-Act XXIII. of 1861, § 3g-»«crfia.
neons Proceedings — Execution of Decree — Trans-
fer.} The provisions of 5 6 of Act Vfll. of 1850
extended to miscellaneous proceedings* and
proceedingsin execution are"miscelIaneous pro-
logs " within the meaning of that term in
§ 38 of Act XXTII. of 1861. A District Court,
therefore, is competent, under § 6 of Act Till.
of 1859, and| 38 of Act XXIII. of 1861, to
transfer to its own file proceedings in' execution
of decree pending in a Court subordinate to it.
Gva Pars had p. Bhup Singh.. .L L. Rep. 1
AIL 180, 1876, F. R
- 5 7 — Specially registered Simple Mortgage
Bond— Money Decree on — Subsequent
Suit to enforce Lien on Mortgaged pro-
perty.
See Res Judicata. 39.
Doss Money Dossbb v. Jonhbn.
joy Mlfllick...I. L. Rep. 3
Oal. 8SS.
- i 7 — Splitting Cause of Action— Separata
Accounts of Tradesman.
Sec Small Cause Court— Presi-
dency Town. 4.
Cassum v. Thakoor Lilladur...
L L. Rep. S Bom. S70.
1. , 7-— Spitting Cause of Action.]
Section 7 of Act VIII. of 1S39 does not apply to
i in which a. plaintiff, though entitled to
1 more than one kind of relief in a suit,
s to seek relief in respect of a portion of
his claim in such suit, and seeks for the time
le remedy only.
Therefore, where the plaintiff in 1864 sued the
defendant's father for a declaration of his rights
on a deed of sale executed by him in the plain-
tiffs favour, on the ground that the defendant's
hy Google
DIGEST OF CASES.
CIVIL FEQaKDOKK CODE, ACT VttL
OF 180& -conld.
father bad tailed to fulfil his promise to put him
in possession, and obtained a decree declaring
his right* i —
Held, that a subsequent suit brought against
the defendant to obtain possession of the land
■old under the deed, and mesne profits, was not
barred by § 7 of Act VIII. of 1859. TitlsiRam
». GahqaRam. Turner and Span/tie, J]. ..I. L.
Bap. 1 All. ana, 1876.
3. ) 7-— Omission of Part of Claim—
Withdrawal of Suit- Institution of Frtsk Suit
including Part ef Claim omitted.'] Where the
plaintiffs in a suit were permitted to withdraw the
Hme with a view to bringing a fresh suit, which
should include a portion which had been omitted
before of the claim arising out of the cause of
action, and such fresh suit was brought, the ad-
ditional portion of the claim in that suit
bUd not to be barred by f 7 of Act VIII. of
1850. IlaHI Baksh e. Imam Baksh. Stuart,
C}-, mi Pearson, J LXi.Rep.l All. 384,
1876.
8. — § J.— Relinquishing or Omitting tc
tut for Portion of Claim— Fraud— Concealment.]
S-, as one of the heirs of his brother M., sued the
tons of it., the other heirs of At., for, amongst
ether things, a declaration of his right to share
In the rights and interests of It. as the mort.
gagee under a deed of mortgage, which he valued
at the amount of the principal sum advanced
under the mortgage, via., Rs. 5,000, stating his
cause of action to be the obstruction caused by
the sons of M. to his sharing in it's estate. He
obtained a decree declaring his title to the
share claimed. S., one of the sons of IS., had
fraudulently concealed from and kept S. in
Ignorance of the fact that previously to the
suit he had realized Rs. 8,624 under the mort.
gage. On this fact coming to S.'s knowledge,
be sued the sons of M., to recover bis share of
that sum -.—Held, that this second suit
barred by Act VIII. of 1850, ( 7. Bulwunt
Singh v. Chittan Singh (H. C. Rep, N. W. P.
1871, p. 27) followed. Lachhan Singh v.
Sanwal Singh L * L. Rep. 1 All. 618.
4. — I 7>— Relinquishing or Omitting to
tut for Portion of Claim- Simultaneous Suits.']
The plaintiff instituted two suits at the sain
time : one against J., lambardar, for profits of
moruia for 1281 and 1283 Fasli, the other against
y. and. another shareholder, B-, for a settlement
CIVIL, PBOOSDTTKB COD*, ACT TUX
OF 1866— tentd.
of the account of the Sir- land held jointly by the ■
parties for isSi, 1282, and 1183, Fasli :—
Held, that even assuming that the accounts
of the Sir-land were included in the general
of the profits of the village which the
lambardar was liable to account for to the plain-
to give in both suits the same cause of
action to the plaintiff against J., the second suit
would not necessarily be unmaintainable against
B., and even as against J. the provisions of § 7
of Act VIII. of 1859 would not bar such suit. The
claims were divided for convenience of trial, but
the plaints in the two suits were filed at the same
:, and there was no relinquishment of a claim,
not would there be any question of entertaining
after such relinquishment or omission
within the meaning of £ 7. If the Court in
which the plaints were filed considered they
iliould have been tried together, the proper
course was to allow one of the plaint? to be
amended, so as to combine both claims. Kale -
shab Prasad v. Jagan Nath. Pearson and
Oldfield, JJ I. L. Rep. 1 AIL 660, 1878.
6. §7.— Splitting Cause of Action.] The
plaintiff sued in the Court of the Munsiff of
Sealdab for a certain sum due on a khatta.book ;
and he also brought another suit in the Sealdah
Small Cause Court for the balance of the price
of grain sold by him to the defendant. The de-
fendant in the Small Cause Court objected that
instituted there could not proceed, inas-
much as he bad given a hatckitta to the plaintiff
which would show that the two accounts were
not separate but one. The plaintiff then filed a
supplemental plaint in the Munsiffs Court, en-
hancing his claim by the amount sued for in the
Small Cause Court. The defendant pleaded
that the plaintiff having at first omitted to sua
for this sum, could not include it in the present
Held, that as the suit was originally bud, the
causes of action were distinct, but whan the
plaintiff sued on the hatckitta they became
united, and therefore, as the suit was originally
laid, there was no relinquish meat within the
terms of f 7 of Act VIII. of 1859, and that the
amendment of the plaint was rightly made.
Mohummud Zakoor Alt Khan w. TtusMoorantt
Rutta Koer (11 Moo. I. A. 68) followed. Rah
Tuxrun KooNDoe>«. Hossein Birxs.fr. Uarkby
and Prinset, }J.„L L. X«p- 8 Cart. 788 ; 8
Cart. Rep. 886, 1878.
Digitized byGOO^Ie
( 197 ) DIGEST OF CASES.
OXVTX PROCBDTJRE CODE, ACT VIII. OIVTX PROCEDURE CODB, ACT TUX.
07 1869 —contd. OF 1858- -contd.
6. 1 7.— SplitHngClauseafAe A«i.]",The
plaintiff, on her husband's death, sued the de-
fendant for a declaration of her title to succeed,
as her husband's heir, to certain property, and
for a declaration that the defendant was not the
adopted son of her deceased husband. On ap-
peal, the High Court held that she was entitled,
for the protection of the property in her pos-
session, to a decree that the defendant was not
the adopted son of her deceased husband, and
in respect of the property of which she
in possession, (and for the possession of which she
had not sued in that suit,) referred her
for possession. The plaintiff then sued for
possession -.—Held, that the suit was not barred
by § 7 of Act VIII. of 1859. Dakbo e. Kesro
Rai I. L. Sep. 3 AIL 866, 1870, P. D.
(f 11, 12, 13— Transfer ofSuit.
See Petition for Leave to sue ia
forma. Pauperis. S.
Skinner v. Orde...I.. Rep. 6 L A.
138; I. L. Hop. 2 AIL 241,
— , 13 — Suit for Land in Southal Parganas —
Sanction of High Court.
Bee Sonthal Parganas.
Kaliprosad v- Meher Chundro ..
I. L. Sep. 4 Cal. 223.
i >5-
Set the cases collected under Declara-
tor 7 Decree.
^— I »6, CI. 4 and 5— ffaint— Estate hearing
Name — Boundaries.'] Taking CL 4 and 5 of
( 36 of Act VIII. of 1850 together, when a whole
estate bearing a name is sued for, the bounda.
ries need not be given. Raudayal Khan b.
Ajoodia Ram Khan L L. Bap. 2 Oal. 1.
S. C under Amendment of Plaint. 3.
— f 30— Return of Plaint
See Jurisdiction. 19. 20.
BAI MaKKOR v. BULAKHI...T, L.
Rep. 1 Bom. 538.
Kai.u v. Vjsh ram.. .Ibid. 543.
13".
iSwDuw for BeUgiona Services
Tntu Krishnama Chakiar e.
Kribhna Swani Tata Cha-
aui„,Ik Bop. 61 A, 180.
See OouTt Peea. S.
Narayan t. Collector of Tanna...
I. L.Rep. 2 Bom. 145.
— ~™ 5 73 — Abatement of Appeal — Death of
Appellant— Right of Purchaser to carry
on Appeal
See Abatement of Appeal— CiviL
1.
MoHESHWAR V. KUSHABA...I. Tj.
Rep. 3 Bom. 248.
, 73— Abuse— Defamation— Parties.
See Parties to Bolt. 6.
SUBHAIYYAR V. KrISHNAYYAR...
1 1. Rop. 1 Mad. 388.
i 73— Adding Parties.
See Parties to Suit, 7.
KOBGLEK O. PH0SS0NNO...I. Tj.
Rep. 2 Oal. 473.
H 9*-93— Suit for Specific Performance of
Contract to. give in. Marriage — Interim
Injunction to restrain Breach will not
be granted.
Sen Injunction. 1.
Gunput N a rain Singh L L.
Bep. 1 Cal. 74.
i 102.
See Abatement of Appeal— Civil. 1.
MuEESHWAR V. KUSHHAHA...L L.
Bep. 3 Bom. 848.
f IIO— Failure of Plaintiff to pay Court Fee
for Issue of Summons — N on- Appearance of Defen-
dants—Dismissal of Suit— Fresh Suit.] Where
the plaintiff failed to deposit the talabana required
for the purpose of issuing summonses to certain
persons whom it was proposed to make defend-
ants in addition to the original defendants,
id the Court on that ground irregularly dismiss-
ed the suit as against such original defendants
before the day fixed for the hearing of the case,
by an order purporting to be made under , no
of Act VIII. of 1859:—
Held, that such order of dismissal did not pre-
clude the plaintiff from instituting a fresh suit
against the original defendants. Gulah Dai o.
JlWAN RAM. Stuart, C.]., and Pearson, J. ..I.
7* Bep. 8 AIL 318, 1878.
by Google
DIGEST OF CASES.
§ Iig— Judgment Ex-parte— Written State-
ment rejected— Defendant's Pleader
allowed to cross-examine Plaintiff's Wi
Sen Judgment Ex-parte. 3.
Raohapa n Pabapa..X L.Bep. 1
Bom. S17.
1 ( 1 1 9 — Right of Respondent to Appeal from
Judgment ex-parte in Appeal.
See Appeal— Civil. §.
Kali Kishorb v. Dhunun;ov..,I.
L. Bep. 3 Cal. 228.
L (H9-— Judgment ex.pa.rte— Appeal.]
The provisions of § lit) of Act VIII. of 1859,
" that no appeal shall lie from a judgment pass-
ed ex-parte against a defendant who has not
appeared," must be understood to apply to the
case of a defendant who has not appeared at all,
and not to the case of a defendant who, having
once appeared, fails to appear on a subsequent
day to which the hearing of the cause has been
adjourned. Zaik-ul- Aunts Khan e. Ahmad
Raza Khah..,Z. L. Bep. 2 All. 67, 1678 ; L.
Bop. 6 I. A. 233.
8.— | itg^-Ex-ptite Decree— Rekearing
granted after Expiration of Time limited for
Application.] The plaintiff obtained an ex-parte
decree on the 3rd July 1873, of which he took
cut execution on the 9th August 1873. On the
llth November 1873, tnc defendant applied for
and obtained a rehearing under 5 119 'of Act
VIII. of 1859. On the rehearing his suit was
dismissed on the merits by both the lower
Courts. On special appeal to the High Court: —
Held, that, although § 119 provides that an
order for rehearing shall be final, it is final only
in the sense that the order by itself is not open
to appeal, and that the plaintiff was not preclud-
ed by that section, from raising, on special
appeal, the objection that the order for rehear-
ing was made after the time limited by that
section, and therefore ought to be set aside as
made without jurisdiction. Runglall Misser
v. Tokhijn Misser. Ainsiie and Birch, JJ...I.
L. Bep. 8 CaL 114, 1876.
(H3.
See Variance between Written
Statement and Proof*.
Chova Kara ». Isa Khalifa.
L L. Sep. 1 Bom. 208.
S> '39 and 141.
Set Amendment of Plaint. 2.
Ram Dayal «. Ajoodhia Rah...
I. L. Bap. 2 Cal. 1.
i JaB— Adjournment— Dismissal of Suit.]
In a suit issues having been settled, the final
hearing of the suit was adjourned to a fixed
date for disposal. On that date the plaintiff did
appear, and the suit was dismissed under
§ 148 of Act VIII. of 1859 i—
Held, that as this was not a case which had
been adjourned in favour of either party to
enable him to " produce his proofs or cause the
idance of his witnesses," the order was not
which could properly be made. Rvall *.
Sherman. Morgan, C J., and Innes, J I. L.
Bep. 1 Had. 287, 1877.
5 170.
See Be* Judicata. 17.
Oram hove Daasu «. Kkisto
MomjN...I. L. Bep. 3 CaL
922.
1 181.
See Account. 2.
Watson «. Aoa Mehedee She-
RAZu...L.Bep. 111. 346.
See Practice— Civil. 2.
Seth Guj m i.'li. p. Musst. Chabeb.
I. L. Bep. 2 L A, 84.
— — | 194— Decree payable by Instalments —
Discretion.
See Decree payable bylnat&lmenta.
1.8.
Bindo Persad v. Madho Pbrsad.
I. L. Bep. 2 AIL 128.
Caryalhoii' NuRBtBi.,.1. Ii.Bep.
8 Bom. 802.
— § 194— Interest from Date of Suit— Award
of— Discretion.
See Interest. 7.
Carvalhop. Nurbibi...!, L.Bep.
3 Bom. 80S.
§ 197— Suit for Possession— Decree- Appli-
cation for Assessment of Mesne Profits — Order—
Execution— Limitation.'] The plaintiff obtained,
on the 31st January i860, a decree for posses-
sion of certain property and mesne profits. Exe-
cution was taken out in 1863, and possession
obtained, and a portion «f the interest realized
on the 6th March 1863. On the 3rd March 1866,
by Google
DIGEST OF CASES. ( 242 )
CIVIL PBOOXDTJRB CODE, ACT VHL CIVIL PROCEDURE CODE, ACT VIII.
OF laOO—codtd.
daughter, who was of age, to reside in her house,
but there was no evidence that there had been
an; interference on the part of A. with the return
of her daughter to her husband since the date of
the decree: — Held, that something more must be
shown than that A.'s daughter was permitted to
reside wilh A. to justify the execution of the
decree against her under the provisions of § 300
Of Act VIII. Of 1859. AjNAS] KlJAR D. SUKAj
PrASaij. Stuart, C. J., and Turner, J... I: X..Rep.
1 AIL 601, 1877.
the plaintiff applied to the Court to determine
the amount due to him as mesne profits,
question having been reserved, under | 197 of
Act VIII. of 1859, in the original decree,
inquiry having been held, the judgment-debtor
(the defendant) objected to the assessment
posed. These objections were disposed of by
the first Court on the 29th of June 1869, and the
order of that Court was confirmed on appeal on
the 31st August 1871. On the 14th August
1874, the plaintiff applied to the Court to realize
the amount due to him as mesne profits, and
the defendant objected that the application was
out of time ;—
Held, that when a decree is made under $ 197
of Act VIII. of 1859, proceedings taken after thi
original decree for possession for the purpose of
determining the amount of mesne profits payable
to the plaintiff, are in effect proceedings in
tinuance of the original suit, and that until those
proceedings are brought to a close and a decla-
ration has been made as to the amount actually
due, no decree for any specific sum can be said
to exist.
The wording of j 197 of Act VIII. of 1859 is
perfectly consistent with the view, that where the
inquiry as to the amount of mesne profits is
reserved, the decree for the possession of land is
only a partial decree in the suit, and that there is
to be a further inquiry, and a further decree in
respect of mesne profits- The words " for the exe-
cation of the decree " refer only to the execu-
tion of the decree for the land, and cannot refer
to execution of that which has not yet taken the
form of a decree.
Muni. Fumettun v. Syvd Keramut Hcssrin (SI
W. Rep. 24a) and Bunsn Singh v. Mima Nutuf
AH Beg (ai W- Rep. 328) approved. Dildar
Hoshink Mujebdunnusa. Ainslic and WU.
son, JJ. I. L. Rep. 4 CaL 639, 1878.
5 aoo.
&r Kotfituti<m of Conjugal Rights.
1.
Yakunabai e. Pbndse I. L.
Rap. 1. Bom. 164.
— - § 300— Decree for the Performance afapar-
tietdar Act — Execution of Decree.'] A., who had
been directed by a decree to refrain from pre-
venting her daughter returning to her husband
after the date of the decree permitted her
§ 301 — Arrest under Ex-parte I
Judgment- Debtor possessed of Property — Malice
—Want of Reasonable and Probable Cause.
See Damages.;4.
Raj Chl'nusr r. Skama Soon.
dbri...I. L. Rep. 4 Cal. 688.
i 307 — Application by Mooktisx on behalf
of Judgment-Creditors.
See Execution of Decree. 2.
AHTO MlSREK V. BlDHOOHOOXHXB
Da bee. I. L. Rep. 4 CaL 606.
§ ioS*- Application by alleged Purchaser of
Decree for Execution — Appeal.
See Act 3CCIU. of 1861, g 1L 1.
SOBHA BlBEIV. MlRIA SaKHAHUT
Au„X L. Rep. 8 CaL 871.
— i 308— Execution of Decree — Transferree
of Decree— Question of Legitimacy of
Son of Deceased Decree-holder — Juris-
diction—Act XXIII. of 1861, J 11.
See Execution of Decree. 9,
Abkedoonissa t. Aubbroonissa...
X>. Rep. 4 I. A. 66 ; I. L.
Rep. 3 CaL 337.
$ 208— Purchaser of Decree, Application
by to execute — Appeal-
See Appeal— Civil. 9.
Runjit Singh b. Meherban Koer.
L L. Rep. 3 Cal. 663.
§ 308 — Execution of Decree — Transfer of
Decree by Operation of Lav — Certificate to collect
Debts— Act XXVII. of i860.] The obtaining of a
certificate to collect debts, under Act XXVIL
of i860, is not indispensable to the competency
of an heir of a deceased person to apply for
ition, under f 108 of Act VIII- of 1859, of a
decree held by such deceased person- But it is
open to tbe Court in the exercise of its discre-
DigitizsdbyGOO^Ie
( US ) DIGEST OF CASES. ( Hi )
Oini PROCEDURE CODE, AOT VOL OZVZL PROCEDURE OODE, ACT VHX
OF 1888— amid. 07 1850— contd.
tion, if there is any doubt that the person apply-
ing fat execution, is entitled by inheritance to
the rights decreed, to refuse the application
until a certificate has been obtained. Karam
Ali tr. Hauiia. Turner, CJ. (Offg.), and Pear,
ton,] I. L. Rep. X AIL 686, 1878.
— IS 23St 23^* 237— Attachment of Matikana
Rights payable for ever.
See Execution of Decree. 10.
NlLKUNTOe. Ht'ERO SoONDERES...
X. I* Rep. 3 Cal. 414.
1. f 240.— Attachment of Land — Private
Alienation after Attachment— Act VIII, of 1859,
f z35-j Certain land was, in execution of a decree
ordered, by the Court executing the decree, to
be attached. The written order required by
4 335 of Act VIII. of 1859 issued, but it was not
made known as directed by ( 339 of that Act.
It was not fixed up at all in the Court-house of
the Court executing the decree, nor was it sent
to, or posted up in, the office of the Collector of
the district in which the land was situated.
Subsequently to this attachment the plaintiff
purchased the land from the judgment-debtor ; —
Held, that as the attachment had not been
made known as required by law, the provisions of
\ 340, Act VIII. of 1S59, did not apply, and that
the sale was not Dull and void. Indra Chandra
v. The Agra and Masterman's Bank (to W. Rep.
364, S. C. 1 Beng. L. Rep. S. N. xx.) followed.
Nur Ahmad r. Altaf Ali. Pearson and Turner,
jj .....I. 1. Rep. 3 AIL 68, 1878.
2. f 340. — Alienation of Property under
Attachment.} The property in suit was at-
tached in May 1871 in execution of a money-
decree held by the defendant against A. In
July 1S71, the execution case was struck off
the file by the Court executing the decree. In
August 1S73, the defendant again applied for
execution of his decree by attachment and sale
of the property. On the 13th of September
1873, notice was issued to the judgment .debtor
under f 316 of Act VIII. of 1850. On the 17th
of September 1873 the judgment-debtor sold
the property to the plaintiff, and on the a8th
of November 1873 the Court ordered the pro-
perty to be attached in execution of the defend-
ant's decree against A. In a suit brought by
the plaintiff to establish her right to the proper -
Held, that the alienation to the plaintiff was)
not void under the provisions of ( 340 of Act
VIII. of 1859, as there was 00 subsisting nt.
tachment of the property at the time of his pur-
chase 1 and the object and intention of the
orders in the former proceeding must be given
effect to, which was the principle of tbe decision
in Ahmud Hossein Khan v. Mahomed Ateem
Khan (H. C. Rep. N. W. P., 1869, p. 51). Zaib.
Nuba v. Jai rah Gir. SpanJde and Oldfield,
Jj..... I. L.Kop. 1 All. 616,1878.
I 343 — Power of Manager appointed by
the Court.
See Mortgage. 39.
MOKAN t. MlTTRR BlBEE-.I. Xl.
Rep. 3 Cal. 53.
1. S 243- — Detre* on Mortgage —
Manager.} Section 343 of Act VIII. of 1859 does
not apply to a decree founded on a mortgage,
when the decree declares that certain property is
be sold in satisfaction of the mortgage debt.
manager, therefore, cannot be appointed
under j 343 in such a case. Wouda KbanUm e.
Rajkoop Koeb. Ainslie and Kennedy, JJ...I.
L. Rep. 8 CaL 336, 1877.
— 4 246 — Order disallowing Claim to At.
tached Property — Suit to set aside, and
for Declaration of Title— Court Fees.
See Court Fee*. 1.
Gulzari Mai* Jadauh Rat. ..I,
L. Rep. 9 All. 63.
— S 346— Order Refusing to release from
Attachment Property ordered to be sold
in Execution— Suit to establish Title-
Limitation.
See lainitation. S3.
Kovlash Chuhdbk v. Preonath.
X X.. Rep. 4 CaL 610;
8 CaL Rep. 98.
S 346— Suit to Establish Right— Court
Fees.
Sec Court IToea. 11.
Chuwia v. Ramdial..X Xi. Rep.
1 AIL 360.
L — § 346. — Adjudication of Right—
Effect of -Limitation — Suit te establish Bight.']
The share of a judgment -debtor in certain land
being attached in execution of a decree against
him, one K. claiming the whole of the property
attached, appeared as an objector under § 346 of
D.gmzed by G00gle
DIGEST OF CASES.
CIVIL PROCEDURE CODE, ACT VHX
OF 1858- -contd.
Act VIII. of 1S59, but his claim was disallowed,
and the property adjudged to be in the posses-
sion of the judgment -debtor. The property
was put up for sale and purchased by the plain-
tiff. Subsequently, ff.'s alleged right in the
whole of the same property was attached in
execution of another decree and purchased at a
Court sale by the defendants, who were put in
possession. Neither P.. nor the defendants took
any proceedings to set aside the order dismiss-
ing R.'s claim under § 246 of Act VIII. of 1850.
In a suit brought by the plaintiff four years after
the date of that order to establish his right to
the property as the auction purchaser thereof :—
Meld by a majority of the full Bench, that
when an inquiry has been duly held under ( I46
of Act VIII. of 1859, and an order passed there-
on, so long as the order remains unquestioned
by the procedure directed by that Act, it is as
final and conclusive on all persons who are par-
ties to it, as any other final order or decree of a
Court of Justice. Until it has been overruled in
a regular suit, brought in virtue of the permission
expressly given by the Code, no Court is at
liberty afterwards to go behind the order and
inquire whether the Court, which disallowed the
objection, had correctly appreciated the evidence
as to possession, or had come to the conclusion
erroneously, that possession was with the judg-
ment-debtor. The effect of the order cannot be
affected by the propriety, or otherwise, of the de-
cision at which the Court, which investigated the
claim, arrived as to the factof possession. That
order until reversed is conclusive of the right,
ft, therefore, and the defendants having failed
to prove the right of R. within the time allowed
by , 246 of Act VIH. of 1859, such right <
By Pearson, J.— The finding of the Court under
S 246 of Act VIII. of 1859 is an adjudication of
proprietary right on the basis of possession.
The order which may be passed on such finding
is declared not to be subject to appeal, and
would not be contestable at all, but for the express
permission given by the concluding words of
that section, to the party against whom an order
may be given, to bring a suit to establish his
right. Those words show that the matter in dis-
pute between the decree- holder and the claimant
is not by reason of the finding and order under
§ 346 so absolutely rtt judicata, as not to be
IB
CIVIL PROCEDURE CODE, ACT VUI.
OF 1859-centd.
open to re-adjudication in a suit by the party
against whom the order was passed, to establish
his right. But in the event of no such suit
being brought, the matter in dispute must be
held to have been finally disposed of by the find-
ing and order under ( 246, and to be absolutely
judicata. Badri Prasad ». Muhammad
Yusitf I. L. Rep. 1 All. 381,1877.
2. § 246. — Effrctof Order under —Suit
toestablish Right — Limitation.] B. caused acer-
dwel ling-house to be attached in execution
of a decree held by him against M., as the pro-
perty of M. y. preferred a claim to the property,
which was disallowed by an order made under
§ 24601 Act VIII. of 1859. Two days after the
date of fueh order, M. satisfied B'a decree.
! than a year after the date of this order, J.
Sued B. and M. to establish her proprietary right
to the dwelling-house, alleging that St. had
fraudulently mortgaged it to B.
Held, following Badri Prasad v. Muhammad
Yusuf (I. L. Rep. I All. 381), that the suit was
barred, no suit having been instituted by the
plaintiff within one year from the date of the
order under f 246, to establish her right, and it
made no difference that the decree was settled
after the order was made. Yaom e. Bhagwan
Sahai. Spankit and OldJUld, }). ...L L. Rep.
1 All. 641, 1878.
8. f 246. — Judgment.Debtor—Limita-
tion.] When the judgment-debtor is not made
a party to a proceeding under | 246 of Act VIII.
he is not bound by the law of limitation to sue to
establish his right to the property within one
year from an order made under that section
releasing it from attachment. Imbichi Koya v.
KakKUMAT UpPAKI. Morgan, C.J., and Innes,
j L L. Rep. 1 Mad. 391,1878.
— J 248— Land paying Revenue — Remission
of Revenue for Term of Years.
See Bale in Execution of Decree 8.
Showers 11. Seth Gc-bind Dass ..
I. L. Rep. 1 All. 400.
— i 249 — Government Revenue — Error in
Statement of— Waiver.
See Bale in Execution of Decree. 18.
Girohari.v Hurdeo L. Rep.
3 I. A. 230.
D,gltlzed by G00gle
DIGEST OF CASES.
CIVIL PROCEDURE COBB, ACT VIH. CIV 11 PBOCEDUBE COSE, ACT VHX
OP 1B88— ton Id. OF 1B09— contd.
— — § 349 — Material Irregularity.
See Sale in Execution of Decree, 11.
Shib Prokash v. Sardar Doyal ..
I. L. Bep. 3 Col. 044.
— - f 349 — Postponing Sate — Fresh Proclama-
See Sale in Execution of Decree. 6.
Goopkit Nath e. Roy I.uchme-
HJT..X L.Rop.SCal .542.
S254-
See Beeale in Execution of Decree.
Anakdrav v. Shekh Bada ...I. L.
Bep. 3 Bom. 563.
— — § a 54 — Appeal from Order under.
See Appeal— Civil. 17.
Ram Dial*. Ram Dai I. L.
Bep. 1 All 161.
§5 *S°. 3S7-
See Sale in Execution of Decree.
ie.
Ths Court of Wards *. Gaya
Persad I. L. Rep. 3 All.
107.
§5 256, 257— Act XXIII. 0/1861, § U— Auc-
tion Sale, Order cancelling—Suit to set aside."] A
Munsiff having cancelled an auction sale of
lands on the sole objection of the judgment-
debtor that the property realized a low price,
and the Judge having dismissed an appeal by
the auction purchaser against such order, 01
ground that though the Munsiff's order
invalid, yet inasmuch as it was passed u
f 11 of Act XXII I. of 1 56i, and not under ( 257
of Act VIII. of 1859, under which the Munsiff
assumed to act, no appeal would lie on the part
of an auction purchaser who was no party t
Held, that such order passed by the Munsiff
was not a proceeding under ( II of Act XXIII.
of 1861, but was an order passed ultra vires un-
der § 257 of Act VIII. of 1859, and that a suit
would lie for its cancelment, the finality of an
order under §{j 256, 257 of Act VIII. of 1859
depending on its compliance with the terms
of those sections. Sukhai -<j. Daryal. Spankie
and QUfitid, JJ L L. Bep. 1 All. 374,
1877,
See Sale in Execution of Decree. 3.
Ghazi «. Kadir Baksk..... I. L.
Bep. 1 All. 313.
See Sheriff'*: Sale. 4.
Bbjanji v, Hormasji...L L. Bep.
3 Bom. 268.
L— — J 260.— Suit by a Certified Purchaser.]
Section 260 of Act VIII. of 1S59 must be con-
strued strictly and literally, and is applicable
only to > suit brought against the certified 'pur-
chaser to assert the benamee title against him ;
and the real owner for whom the purchase is
made, if in possession, and if tbat possession
has been honestly obtained, may defend a suit
brought by the holder of the certificate, and show
that he was the apparent owner only, and a mere
trustee. Lokhee Narain Rov Chowdry 0.
Kalyfuddo Bakdopadhya ..L. Bep. 2 I. A.
154 ; 23 W. B. 368, 1876.
3. fioO.— Execution of Decree— Certified
Purchaser.] A. sued for a declaration that P.,
the certified auction purchaser of certain im-
movable property, was merely a trustee for R.,
A.'s judgment. deb tor, that the purchase in P.'s
name was made with the intent of defeating or
delaying him in the execution of his decree, and
tbat he was at liberty to apply for execution
against the property ai the property of his
judgment -debtor : —
Held, following SohuH tail v. Gya Parshad
(H. C. Rep. N. W. P., 1S74, p. 265), that ( 260
of Act VIII. of 1S59 was in no way a bar to the
suit. Puran Mal o. Au Khan. Turner and
Spankie, JJ I. L. Bep. 1 AIL 336, 1876.
3. i 260.— Certified Purchaser.] Section
260 of Act VIII. of 1S59 must be construed
literally and applied strictly. The Court will
not apply it so as to assist the certified purchaser
to enforce his claim against the party in posses-
sion, by relieving him from the necessity of
showing the justice of his claim, or excluding
inquiry as to its fraudulent character.
In a suit brought by the certified purchaser at
an execution sale, to establish his right to the
property and for possession :—
D,gltlzed by G00gle
DIGEST OF CASES.
CUm PSOCEDUBH CODE, ACT VUL
OF IS&Q—coHid.
Held, that the defendant was not precluded by
| 260 of Act VIII. of 1859 from showing that he
was the actual purchaser of the property. Jan
Muhammad *. Ilahi Raksh. Stuart, C.J., and
OUfistd, J L L. Kep. 1 AIL 890, 1676.
■ | 269— Dispossession of Third Person under
Execution Sale — Obstruction to Purcha-
se Sale in Execution of Decree. IS.
Hakasatdollah v. Brojonath
Ghose I. L. Kep. 3 CaL
789
I 269— Possession— Undivided Hindu Fa-
mily—Sale of Interest of one Coparcener.'] When
the defendant is in possession in virtue of an
Older under §269 of Act VIII. of 1859, the
plaintiff can only succeed on the strength of
faia own title.
K. and R., two out of five undivided Hindu
brothers, sued V., a purchaser at an execution
sale of the interest of one of the brothers other
than K. and R., for the recovery of certain
which V. had obtained possession of under j 269
of Act VIII. of 1859. The lower Courts awarded
two-fifths of the land to K. and R., as being the
amount of their share in the land.
Held, that the decree could not be maintained
as K. and R., being two of several coparceny
undivided property, could not say that they
entitled to a specific share in any portion of that
property. They might have sued for a ge
partition, or for a decree declaring them entitled
to possession jointly with V.
Such possession decreed, following Babaji b.
Tasadev (I. L. Rep. t Bom. 95).
A purchaser at a Court's sale ought not to be
put in exclusive possession of the whole undi-
vided land by virtue of a decree against one
coparcener only. Kalapa Girmallapa v. Ven-
KATESH Vihavak. Mefoill and Kembalt, JJ ..I.
L. Rep. 9 Bom. 670, 1678,
5 270.
Set Executio n of Decree. 7.
Narandas v Bai M*nchha,.X
L. Bep. 3 Bom. 317.
5*71-
See Sale In Execution of Decree. 14'
Manik Singh v, Paras Ram ...I
L. Seii. 1 All. 737.
CIVIL PBOCBDUBE CODE, ACT VHT.
op laoe-contd.
51 270 and 271— First end Subsequent
Mortgagees— Rateable Distribution of Sale Pro-
ceeds.] The purport of §§ 270 and 271 of Act
VIII. of 1859 (with which § 295 of Act X. of
1877 corresponds) is not to alter or limit the
rights of parties arising out of a contract
but simply to determine questions between
rival decree-holders standing on the same foot.
and in respect of whom there is no rule for
wise determining the mode in which pro-
ceeds of property sold in execution shall be
distributed. HasoonArra Begun v. Jawadoo-
nissa Satooda Khandan ...I. L. Bep. 4 CaL
89.
J 285 — Application under — is an Applica-
tion to enforce or keep in force a Decree-
See Limitation. 77.
HUSSAIH BAKSH V M ADGK...I. L,
Kep. 1 AIL 636.
§§ 285, 286— Power of Court to which
Decree transferred for Execution to give
Certificate under.
See Execution of Decree. 13.
Shib Naratn 0. Bspin Behari...
I. I* Bep. 8 Cal. 613.
5287-
See Execution of Decree. 84.
Jagjivan Nanabhoy...!. L. Kep.
1 Bom. 88.
1 299 — Unsuccessful Application for Leave
to sue in fortni, Pauperis not a Demand
by Way of Action.
See Mahomedan Law— Dower. 1.
Ranee Khajooroonissa v. Ranee
Rveesoonissa...L. Bep. 3
I. A. 386,
5 308— Unsuccessful Application for Leave
to sue in formd Pauperis not a Demand
by Way of Action.
See Hahomedan Law— Dower. 1.
Ranee Khajooroonissa -b. Ranee
RVEES00NISSA...L. Bep. 3 I.
A. 88ft.
Si 308-310— Petition to sue in formd Pau-
peris is a Plaint from the Date on which
it is filed, though Court Fees subsequent-
ly paid, if no Fraud of Plaintiff.
See Petition tor Leave to ana ia
forma Pauperis. 9.
Digitized byGOO^Ie
( 261 ) DIGEST OF CASES- ( 262 )
CIVIL PROCKDTJRE CODE, ACT VUL CIVIL PBOCEDTJBE COSE, ACT Tin.
OF 1859—™;,/. OF 1869— conld.
Skinner v. Ordb...L. Bep. € I.
A. 126 ; I. L. Bep. 2 AIL
341.
See Chunder Mohun Roy v. Bhubon
Mohihi Dabea...I. L. Bep.
2 CaL 339.
Under Limitation. 37.
Prerogative al Crown.
See Prerogative- of the Crown.
Collector of Morodabad*. Mu-
hamad Daiu Khan. ..I. It.
Bep. 3 All. 196.
1. t 3°°- Court Fees—Prerogative of the
Crown.] The Crown has the first claim to
proceeds of a pauper suit, to the extent of the
■mount of the Court fees that would have been
payable at the institution of the suit, had the
plaintiff not been a pauper.
Section 309 of Act VIII. of 1859 does not
preclude the Crown, orits representative, from
urging its prerogative, and insisting on its right
of precedence. It is a universal rule that pre-
rogative, and the advantages it affords, cannot be
taken away except by the consent of the Crown,
embodied in a statute. This rule of interpreta-
tion is well established, and applies not only to
Statutes passed by the British, but also to Acts
of the Indian Legislature- G an pat Putaya v.
The Collector of Kahara. West and JV.
Harridas, J] I. L. Bep. I Bom. 7, 1876.
3. S 3°9- Ptuper Suit— Court Feet—
Attachment in Execution of Decree— Prerogative
of the Crown.] The plaintiff was allowed ti
the defendants in formA pauperis. His suit
dismissed, and on appeal, the decree of the
Court of first instance was confirmed with c
The defendants applied to recover, in execi
of these decrees, the costs incurred by them, and
certain houses belonging to the plaintiff
accordingly attached, and sold : —
Held, that the Crown was entitled to be paid
first out of the proceeds of such sale the arm
of the Court fees which the plaintiff would have
had to pay if he had not been allowed to sue
formA pauperis. The principle of the ruling in
Gvnput Putaya v. The Collector of Kanara (I. L.
Rep. 1 Bom. 7) followed. Gulzari Lai, v- The
Collector op Bareillt. Pearson and Spankie,
JJ L L. Bep. 1 All. 696,1878.
S% 323, 32*— Remission of Award not Ille-
gal on its Face, for Reconsideration with
reference to Opinions of Pandits as to
Hindu Law applicable.
See Arbitration. 8.
KanakCuand v. Ram Narrayan.
I. L. Bep. 3 All. 181.
1 32S— Refusal to confirm Award— Appeal.
See Appeal— Civil. 34.
Howard v. Wilson... I. L. Bep.
4 CaL 331.
((325-327 — Validity and Finality of Award
See Arbitration. 4.
Boon] An Nathoo v. Nathoo
Shahoo-.I. L. Bep. 8 Cal.
876.
See Suit for Land. 3.
Kblmev. Fraskr...L L. Bep. 2
Cal. 446.
i 337— Award, Judgment according to—
See Arbitration. 8.
Vishnu v. Ravji I. L. Bep. 8
Bom. 16.
Denial of Arbitration Proceedings.
See Arbitration. 6.
Hussain v. Mohihi. ..I. L. Bep. 1
AIL 166.
Misconduct of Arbitrators.
See Arbitration. 7.
Chowdhrv Murtvza v. Musst.
Bibi..
..L. B. 3 I. A. 209.
f 337— Decree on Appeal.) The Court of
appeal has power, under ( 337 of Act VIII. of
1859 (corresponding with | 544 of Act X. of 1877)
to draw up what would be a fair decree as re-
gards all the parties to a suit, though some of
them may not have appealed. Joykisto Cowak
v. NITTY AHUND NunDv. Garth, C.J., Maribyind
Hitter, JJ...I. L. Bep. 8 CaL 738 ; 3 CaL
Bep. 440, 1878.
S. C. under Hindu Law— Ancestral
Trade.
D.gmzed by GoOgle
DIGEST OF CASES.
S338.
See Stay of Execution.
Ik the mailer of the Petition of
Harshankar Parsad I. Ii.
Bap. 1. All. 178.
S« Sureties.
ArpAji *, Shivlal ...I. L. Rsp,
8 Bom. 304.
■ { 338 — Stay of Execution pending Appeal~
Sureties— Extent of Liability ] 5. obtained a
decree against B. in the Court of the Subordi-
nate Judge of Poona. B. appealed to the Dis-
trict Court, and pending such appeal S. applied
for execution. B. prayed for its stay, and
execution was accordingly stayed, upon A. and
V. becoming securities, under f 338 of Act
VIII. of 1S5.9, " for the due performance of the
decree or order of the Appellate Court," and
executing a bond whereby they bound them.
selves to " obey and fulfil all such orders and
decrees as might be given against the said 4
fendant B. in such appeal," and in default of
so doing, "to pay jointly and severally, at t
order of the said Court, all such sums as the said
Court should, to the extent of Rs. 812-8-0,
adjudge" against them. The decree of the
Subordinate Judge was reversed in appeal, but
in special appeal the decree of the lower Appel-
late Court was reversed, and the cause remanded
for further trial, which resulted in the District
Court confirming the original decree of the Sub-
ordinate Judge : — Held {Pinkey, J, diss.}, that
the obligation of the sureties to fulfil the decree
of the Appellate Court was not confined to the
first decree of that Court, which reversed the
decree of the Subordinate Judge on which exe-
cution had been applied for, but extended to
the final decree which it passed on remand by
the High Court in special appeal. ShivlalL
Khusch asd «. Afpaji B hivrao. Remball and
Pinkey, JJ I. 1. Rep. 3 Bom. 064, 187S.
■— i 343— Security for Costs— Enforcing Bond
against Surety in Execution proceedings.
Set Security Bond.
ChutterdharbeLals. Raubela-
shbe Koeh...I. L Bop. 8 Cal.
818.
— $34*.
See Pauper Respondent.
Babaji v. Ballal ... I. L. Bap. 1
Bom. 75.
i 35° — Error not affecting Merits — Impro-
per Admission of Unstamped Document
See Error not affecting the Merita.
Afzal-un Nissa v. Tbj Bah ...L
L. Bop. 1 All. 730.
f 354— Hemand— Objections.'] Where an
Appellate Court under 5 354 of Act VIII. of
1859, refers issues to a lower Court for trial, and
fixes a time within which, after the return of
the finding, either party to the appeal may file a
memorandum of objections to the same, neither
party is entitled without the leave of the Court,
to take any objection to the finding, either oral.
ly or otherwise, after the expiry of the period so
fixed, without his having filed such memoran-
dum. Ratan Singh 11. Wazir ..I. L. Rep. 1
AIL 186, 1876, F. B.
i 364— Application for Execution of Decree
by alleged Purchaser.
See Act XXIII. Of 1861, ( 11. 1.
SoBHA BlBBE V. MlRZA SaKHAKIJT
Ali...I. L. Rep. 3CaLS71.
S5 3^7 *o 37' — Continuation in formd
Pauperis of Suit commenced in ordinary
See Suit in forma Pauperis.
Nirmul Chandra v. DOYAL Nath.
I. L. Rep. 3 Cal. ISO.
§ 372— Special Appeal in Rent Suit under
Rs. 100.
Set Appeal— Civil. 83.
LUNGESSUR KOOEH V. SOOKHA
Ojua I. L. Rep. 3 Cal.
161.
— -SS 37610378.
See the cases collected under Review.
And see Practice- Privy Council. 8.
Meer Reeasut v- Hadjee Ab-
doollah L. Rep. 1 1. A.
73.
§ 386— District— Sou thai Parganas.
See Sonthal Farganas.
Kaliproshad Rai «. Mbhrr
Chandro Roy... I. L. Rep.
4 Cal. 333.
CIVIL FROCEDTJRE CODE, ACT X OF
1877—1 a—" Decree"— Order passed in
Execution — A ppeal .
See Appeal— Civil. ;36.
Thakur Prasad t.Ahsan Ali...
I. L. Rap. 1 All. 668,
Digitized byGOO^Ie
( SIC ) DIGEST OF CASES. { 160 )
CIVIL PROCEDURE CODE, ACT X. OF CIVIL PROCEDURE CODE, ACT X. OF
1877— tonW. 1877— contd.
— i 2—" Decree"— Order in Executi
Sa Appeal— Civil. 23.
MURLI Dhar v
I. L. Rep. 9 All. 91.
■ § % — " Decree" — Order in Execution of
Decree — A ppeal .
See Appeal-Civil. 98.
. Uda Began «■ Imam-ud-din . L
L. Rap. 9 AIL 74.
•— S 1 — " Decree" — Order of Reference to
Commissioner for taking Accounts.
Set § 8, pott.
Rusrouji «. Kessowji I. L.
Rep. 8 Bom. 161.
— ■■- S 3 — Decree — Order rejecting Petition for
Leave to sue as Pauper.
Set Appeal— Civil. 18.
Collis «■ Mahohar Das.. I. L.
Rep. 1 All. 740.
i J 2 — Decree — Order refusing to set aside
Ex-partt Decree.
See Appeal— Civil. 2. 10.
Guua Singh ». Lac km ah Das...
I. L. Rep. 1 All. 748.
Lll KM I DAS V. EBRAHIH ..I. L.
Rep. 9 Bom. 644.
— | a Judicial Proceeding.'] In the defini-
tion of the term " decree " in § 3 of the Civil
Procedure Code (Act X of 1877), the expression
" suit or other judicial proceeding " must be
understood to mean a suit, or other judicial pro-
ceeding of the same nature as a suit. The
definition limits the term " decree " to a " formal
order in which the result of the decision is em-
bodied," and this indicates that it applies only
to those orders which the law requires to be
drawn up after a decision has been recorded in
a particular formal manner, i.e., to those orders,
or their like, which are described as decrees, and
of which the form is given in 4 3o6 of the
Code; e.g., orders under ff 333, 533, 536, and
531. Dalfatbai Bhagubhai v, Amarsang
Khemabai. Melvill and Kemball, JJ 1 L.
Rep. 9. Bom. 558, 1878.
*3-
See Appeal— Civil. 96. 38.
Thakur Prasad «. Ahsan AlJ ..
I. L. Rep. I All. 668.
Uda Bsgam v. 1mam-ud~din...I.
L. Bop. 9 All. 74.
- 5 3—" Decree."
See Appeal-Civil. 9.
Runjit Singh v. Meherban Koer
I. L. Hep. 8 OaL 662.'
S 3— Practice and Procedure in Suits pend-
ig at the date of the Enactment of Act .AT. 0/1877
-Power of Commissoner for taking accounts to
grant Certificates— Appeal from Decision ofCom-
Issioner—Decrce.] The effect of the proviso
5 3 of the Civil Procedure Code (Act X. of
1S77) taken in connection with the definition of
the word " decree " in f 3 is, that, in all pending
"uits down to their final result, i.e., when nothing
■emsinj to be done but to execute the decree or
to appeal from it, the practice and procedure
which would have been followed apart from the
Code, are to be observed ; but that for pur-
poses of all subsequent proceedings in execution
of the decree, or in appeal from it, the new Code
1 to apply.
The word " decree " in { 3 oftbat Code means
decree final in its nature, and not an order of an
interlocutory nature, such as an order of refer-
fice to take accounts, though such an order in
. general way may be properly termed a decree,
>nd, therefore, a suit which has been referred by
the Court to the Commissioner to take accounts
is still in a stage " prior to decree" within the
meaning of § 3 of the Civil Procedure Code (Act
X. of 1B77). Rustouji Burjorji v. Kessowji
Naik. Green,] I. L. Rep. 8 Bom. 161,
1878,
S. C. under Account*. 8.
I 5 — Jurisdiction — Insolvency — Small
Cause Court.} The effect of § J of the Civil
Procedure Code (Act X. of 1877), coupled with
the 2nd Schedule to that Act, is to render the
whole of Chapter XX. of the Code, including
( 360, Inapplicable to Courts of Small Causes in
the Mofussil, notwithstanding the words " any
Court other than a District Court," and " any
late in his district," which occur in
Ion. Consequently, the Government
Resolution, No. 3133, of 3rd April 1878, invest-
ing the Judge of the Court of Small Causes at
Ahmedabad with powers, under the said chapter,
adjudicate in insolvency matters, is ultra
vires and invalid. Sallu Ganebh v Ranchod
Kahahdas. Westrepp, C.J, and Kimball, J...
I. L. Rep. 2 Bom. 641, 1878.
Diarized by Google
{ m ) DIGEST OF CASES. ( 2K )
CIVIL PROCEDURE CODE, AOT X. CIVIL PROCEDURE CODE, ACT X OF
OP 1877— contd. 1877— coatd.
- S 13— Former Judgments and Decrees.
. See Evidence. 1.
NARANJI BHiKUBHAI t!. Dip* UhBD.
I. L. Rop. 3 Bom. 8.
-138.
See Misjoinder of Causes of Action.
JANOKINATH*. RAM RUNJUN...L L.
Rep. 4 Cal. 949.
f an— Section 29 of the Civil Procedure
Code (ActX. of 1S77) permits the joinder of the
Drawer and Acceptor of a bill of exchange in a
suit by '.lie holder. Psstonjbb Eduljee Guz.
duke- Mihza Mahomed Allv. Pontifex, J....
I. L. Rep. 8 Cal. 541, 1S78.
1 31.
See Misjoinder of Gauges of Action.
Janokinath v. Ramkitnjln ...I. L.
Rep. 4 CaL 949.
— is*.
Set Appeal— Civil 32.
Gopal Singh v. Dular Kuar ..I.
L. Rep. 2 AIL 352-
1. i 3a. — Practice — Joinder of Parties.']
The defendants purchased from one P. E. a
cargo of rice at Chandbally of three dtfferenf
qualities according to sample. The defendant!
then telegraphed to the plaintiff an offer to sell
biro a cargo of rice at Chandbally by descrip-
tion ; and that offer was accepted by telegrar
The defendants afterwards Bent the plaint
samples of the rice comprised in the cargo
which were not objected to by the plai
differing from the description under whi
rice had been sold by telegram ; but
arrival of the cargo the plaintiff complained that
the bulk did not correspond with the sample,
and instituted a suit for damages on that ground
against the defendants. On an application by
the defendants, under § 32 of the Civil Proce-
dure Code (Act X. of 1S77), to add their vendor,
P. £., as a defendant to the suit;— Held, refusing
the application, that though it would be a great
saving of expense and would prevent further
litigation if P. E. were added as a party, yet that
the language of § 33 did not apply to the case;
as the Court could not say that the plaintiff
ought to have joined P. E. as a defendant, or
that P. E.'s presence was necessary to enable
the Court effectually and completely to adjudi.
cate, and settle the question involved in the suit
between the plaintiff and defendants. Ma-
HOMED BADSHA «, NlCOL, FLEMING Si Co. Ponti-
/m,J...I.L. Rep.4C«J. 306; 3 Cal. Rap.
830, 1878.
*■ S &.— Adding Parties -Suit by one
0/ two Mortgagees, Lessors, for Rent—Act XVIII.
"/ '873, $ jo6.] B. and JV., joint mortgagees
of the shares of the defendants in an undivided
granted the mortgagors a lease of the
property, by the terms of which the mortgagors
were to pay the mortgagees! certain half-yearly
rent on account of the right they held in equal
shares, and it was provided that in case of de-
fault the mortgagees might bring a suit and
realize the amount due. Default having been
made in the payment of rent, and N. having re-
fused to join in a suit against the mortgagors to
recover it, B. sued them alone, for a moiety of
the rent due. The Revenue Court of first in-
stance dismissed the suit, on the ground that B-
could not sue alone. On appeal, the Judge
considering that, as B. could get no redress
unless the Court exercised its power under f 32
of Act X. of 1877, remanded the case in order
that the plaint might be amended by adding JV.
as a defendant :-—
Held, that such order was not illegal, though
the provisions of § 3a of Act X of 1877 were
not made applicable to the procedure of the
Revenue Courts. Per SpanUt, J., that if §106
of Act XVIII. of 1873 applied to the case, the
plaintiff should be instructed to sue for the
:ire share due, making the co-mortgagee a
defendant ; but that that section did not in
any way operate as a bar to the suit. The pro-
perty referred to in that section is an undivided
landed estate, and the co-sharer is the co-sharer
in that estate, which was still the property of
:he mortgagors. And though the mortgagee
-cpresented the mortgagor* as being in tem-
porary proprietary possession of the property,
it was not in the character of a co-sharer in
undivided property that the plaintiff brought
; suit. The terms of the lease showed that
the equal shares of the mortgagees in the mort-
1 recognized by the mortgagors; and
there was a recognition by the lessees that,
under the terms of the mortgage deed, the
plaintiff was entitled to half the sum payable
under the lease, and on that account the plain-
entitled to sue for his share of it,
DiQitized by GOOgle
( 269 ) DIGEST OF CASES. ( 260 )
CIVIL PROCEDURE CODE, ACT X. CIVIL PROCEDURE CODE, ACT X. OF
OP 1877— eantd. l&77—contd.
though it might be more strictly regular that
he should sue for the whole sum due, making
his co-mortgagee a defendant, Shib GopALe-
Baldeo Sahai. Pearson and Spankie, JJ I.
L. Hep. 2 All. £61, 1879.
§45-
See misjoinder of Causes of Action.
JiNOKINATH if. Ra MR UN] UN... I.
L. Rep. 4 Cal. 049.
( 57, CI. c. — Appeal from Order — Return-
ing Plaint after Issues filed.
See Appeal- -Civil. 23.
Abdul Samad o- Rajindro Ki-
3hor Singh... I. L. Hep. 2
All. 357.
5 83— Substituted Service of Summons-
Setting aside Ex. parte Decree.] Substituted
by § 83 of the Civil Procedure Code (Act X. of
1877) as effectual as personal service, merely
for proceeding with the suit, and nothing more.
The section does not make service on a defend-
ant's house in Bombay equivalent 10 personal
service on tbat date. When substituted service
of the summons is ordered, under } 82 of the
Code, a sufficient time must be allowed, under
I 84 for notice of the fact to reach the defend-
ant, wherever he may be ; and if an ex-parte
decree be obtained by the plaintiff, the Court,
on being satisfied that the time fixed was insuf-
ficient, will set aside the decree. Mirza Ali
BeBANEE 1. SVED HVDBR HOSSEIH. Pinhey,]...
L L. Rep. 2 Bom. 449, 1878.
— { in — Set-off — Unliquidated Damages
cannot be.
See Bet-oft 2.
Rac.hu Nath v. Askraf Husaih.
I. L. Rep. 3 AIL 263.
5 '3° — Discretion to refuse Inspection —
Privileged Communications.
See Inspection. 2.
Wallace & Co. «. Jefferson...
I. L. Rep. 2 Bom. 403.
( 303 — Heir Representative — Deceased
Mahomedan — Absentee Heir — Consent
Decree— Sale in Execution.
5m Mahomedan Law. 1.
ASSAHATHEH NESSA v. ROV LuTCH-
meput, I. L. Rep. 4 Cal.
142.
f 306— Decree— what it should contain.
See Decree.
Thahhah Singh v. Gahqa Rau.
I. L. Rep. 2 All. 342.
Harsukho-Mbghraj.. .Ibid. 346.
f 310.
See Decree payable by Instal-
ments. 1.
Binda Prasad d. Madho Prasad.
I. X.. Hep. 2 All. 129-
§JIO — Suit en Bond charging Immoveable
Property— Decree payable by Instalments.] The
provisions of § 210 of Act X. of 1E77 are not
applicable to a suit for the recovery of the
amount of a bond debt by the sale of the pro-
perty hypothecated by such bond.
In such a suit, therefore, the Court cannot
direct that the amount of the decree should be
payable by instalments. Hurdeo Das v.
Hijk.au Singh. Stuart, C. J. and Pearson,].. X
L. Rep. 2 All. 890, 1878.
f 2*3— Court of Small Causes— Act X. of
1877, ,648,] Section 223 of the Civil Procedure
Code does not apply to Courts of Small Causes.
.Section 648 of the same Code does not apply to
case in which the defendant resides within tbe
same district in which the Court issuing the
Therefore, a Court of Small Causes may
issue a warrant for the arrest of a person resid-
ing in another district, but not if he resides
within the same district in which the Court is
situated, but without its local jurisdiction.
Chunilal Sobharau v. Parbhudas Kursan-
das. • SfelvilUnd Jtemball, JJ I. L. Rep. 2
Bom. 060,1878.
S230.
See Application for Execution of a
Byraddi Subbaredi o Dasappa
Rau I. L. Rep. 1 Had.
408.
1, I 230— Execution of Decree—" Last
Preceding Application."] Held, that the words
" last preceding application" in the 3rd clause of
(230 of Act X. of 1S77, mean an application
under that section, and not an application under
Act VIII. of 1859. Ram Kishen «. Sedhu.
Sfankie and Oldfitld, JJ X, L. Rep. 2 AIL
275, 1879.
D.gmzed by G00gle
DIGEST OF CASES.
2. %3Tfi.—Executionof Decree— Limita.
Hon.} The concluding clause off 230 of Act X.
of 1877 refers to the question of limitation, and
not to that of diligence. Where, therefore, the
decree-holder had not on the last preceding
application under § 230 of Act X. of 1877 used
due diligence to procure complete satisfaction of
the decree, and Act X. of 1877 bad not been in
force three years; —
Held, that the provisions of the third clause of
§ 230 of Act X. of 1877 were applicable to a
subsequent application under that section. So-
ihan Lal jr. Karim Baksh. Pearson and
Spankie,]] .....L L. Rep. 2 AIL 381, 1878.
§ 244 — Execution of Decree — Appeal.
See Appeal— Civil. 23. 28.
Muhli Diiar jr. Parsotam Dass...
L L. Bap. 3 All. 91.
Uda Bbgam v. Imam-ud-din.. I.
L. Rep. 2 All. 74.
See I 588, post.
SlTRYAPRASAKA V. VAISVA SlNNV-
Aaiv...l L. Rep. 1 Mad. 401.
5 244— Moneys unduly realired in Execu-
tion— Recovery of.
See Execution of Decree. 6.
Pastas SiMOHe. Ben: Ram. ..I. Ii.
Sep. 2 All. 61,
§ 244— Appeal from Ordcr~~Execution of
Decree— Judicial Proceedings— Act X. of 1872,
i 588.] An order made under § 244 of the
Civil Procedure Code (Act X. of 1877), deter-
mining questions between the parties to a suit as
to the amount of the mesne profits recovered by
the plaintiff subsequently to the decree, and as to
the amount payable on account of the execution
of that decree, is not appealable, under ( 588, CI.
/, not being of the same nature with " appealable
orders made in the course of a suit." The "ap-
pealable orders made in the coarse of a suit '
must be taken to be the orders mentioned in the
other clauses of § 588 as appealable, and they
generally interlocutory orders, not going to the
merits of any question arising in the suit. Dal-
FATBHAI BhACUBHAI V. AMARSANG Kh EMABHAI.
Udvill and KembaU, J J... I. L. Rep. 2 Bom.
603, 1878.
§ 246— Cross-Decrees.
See Execution of Decree. 3.
MURIJ DHAR «. PURSOTAM DASS...
I. L. Rep. 3 AIL 81.
I 252— Representative Heir—Deceased Ma-
homedan — Consent Decree — Absentee
Heir — Sale in Execution.
See Kahomed&n Law. 1.
ASSAMATHEM NeSSA V. ROV LUTCH-
mbput L L. Bop. 4 Cat.
143.
— i 268— Court of Smalt Causes— Attachment
:d Sale of Bond.'] Under the provisions of §
8 of the Civil Procedure Code (Act X- of 1877),
bonds cannot be sold till the end of six months
from the date oF their attachment.
A Small Cause Court cannot appoint a
ceiver. Bonds, therefore, on which recovery
will become time-barred before the date on which
sale can legally be made, cannot be available
for the satisfaction of the judgment-creditor's
debt. NlTRSINGDAS RuCHUNATHDAS O- TULSL-
rak Daulatram I. L. Rep. 2 Bom. 559.
5 271— Breaking open Shop Door in Exe-
rtion of Decree.
See Breaking open Door*.
Damodarb. Is h war... I. L. Rep.
3 Bom. 88.
( 273 — Execution of Decree — Attachment
ind Sale of Decree for Money.'] Although debts
ire mentioned in the category of property liable
to attachment and sale in execution of a decree
in ' 166 of Act X. of 1877, yet it is apparent
from the provisions of $ 273 of the Act that the
sale of a money-decree is not contemplated as
tbe result of its attachment, and that an attach-
ent in the mode therein ordained cannot lead
The last clause of § 273 applies to other than
oney decrees.
Where two decrees for money, although they
were not passed by the same Court, were being
executed by the same Court : —
Held, that the provisions of the 1st Clause of
{ 273 were applicable on principle. Sultan
Kuar v. Gl'lzabi Lal. Pearson and Oldfield,
]J I. L. Bep. 2 All. 280, 1B78.
§ 383— Small Cause Court — Jurisdiction —
Act XI. of 1865, § 12.] A suit brought by a de-
feated claimant under § 283 of Act X. of 1877
to establish his right to, and recover possession
of, certain moveable property attached in execu-
tion of a decree of a Small Cause Court, is with.
in tbe jurisdiction of, and must therefore, under
by Google
( 283 ) DIGEST OF CASES. ( ZB* )
CIVIL PROCEDURE CODE, ACT X. 07 CIVIL PROCEDURE CODE, ACT X. OF
1877— contd. 1B77— contd.
Act XI. of 1S65, § 12, be instituted in a Small
Cause Court. Gordhan Tema u. Kasandas
Balmukandas. Melvili and Kemball, JJ. I L.
Rep. 3 Bom. 179, 1870.
■ S*95-
See Execution of Decree, 7.
Narandas if. Bai Manchha...I.
L. Rep. 8 Bom. 917.
*$ 3II.3".
See Appeal- -Civil. 32.
Gopal Singh v- Dular Kuar...
I. L. Rep. 9 AIL 382.
* 315— ** CI//. 0/ l8j9— Salt in Execu-
tion of Decrti under Act VIII. of 1859— Evic-
tion of Purchaser— Refund of Purchase-Money.)
In September 1877, certain immoveable property
was sold in execution of a decree under the pro-
visions of Act VIII. of 1859. The auction pur-
chaser was subsequently, after Act X. of 1877
came into operation, deprived of the property
on the ground that the judgment -debtor had no
saleable interest therein. He thereupon applied
under j 315 of Act X. of 1S77 to the Court exe-
cuting the Decree, for the refund of his pur-
chase-money, and the Court made the order,
holding that J 315 of Act X. of 1877 applied : —
Heid, that the order was a right, just and pro-
per one. The proceedings commenced under
Act Vlll. of 1859 appeared to have terminated
with the sale. The application under j 315 of
Act X. of I877 might be regarded as a new pro-
ceeding ; and the Court was not prepared to say
that the Judge could not entertain the applica-
tion under the second clause of that section, and
therefore declined to interfere.
In the matter of the Petition of Ml/LO. Pearson
*nd Sfiantic,]].. .1.1*. B#p. 3AU. 399, 1B79.
Dissented from in Hira Lall b. Karim-
Vn-Nessa LL Rep. 3 All. 780.
See Vol. 3, Col. 1810.
i 33* — Execution of Decree — Resistance to
Execution — Mortgagee in Possesion,'] A mortga-
gee who is in possession of the mortgaged pro-
perty under the mortgage, is in possession " on
his own account " within the meaning of § 333
of Act X. of 1877.
In pursuance of an order made in execution
of a decree passed before Act X- of 1877 came
into force, the mortgagees in possession of
the mortgaged property under the mortgage,
were dispossessed thereof after Act X. of 1877
came into force. On an application by the
mortgagees under 1 33a of Act X. of 1877 to be
restored to possession of such property 1 — Held,
that they were entitled to the benefit of that
A person claiming under J 33a of Act X. of
1S77 need not prove his title, but only the fact
of possession. Shafi-iid-din v. Lochan Singh.
Turner aaASpantie, JJ...L L. Rep. 9 AIL 94,
1878.
i 336, CI. 5 -Smart Cause Court— Debtor.]
Clause S of f 336 of Act X. of 1S77 applies to
Small Cause Court debtors; such persons can
obtain the benefit of Chapter XX. of that Act by
applying to a Court which has jurisdiction under
that Chapter. Strd Moidin v. Sundaramuyha.
Morgan, C. J., and Forbes, J I. L. Rep. 9
Mad. 9, 1878.
H 34'. 343- Imprisonment for Contempt.
See Imprisonment for Contempt.
Martin v. Lawrence.. X L.
Rep. 4 Oal. 6B8.
S 3*a— ■*=' Vlll. 0/1859, ff 273 to 381—
Act X. of 1877, ($ 3. 328 to 243— Act I, of 1S6S,
f 6 — Construction — Procedure — Retrospective En.
aettnent— Discharge from Custody.] Held, by a
majority of the Full Bench (Sargentand Bayley,
JJ., dissenting), that a judgment -debtor, impri-
soned in satisfaction of a decree against him
under Act Vlll. of 1859, is not entitled, under
Act X. of 1877, to De released on the coming
into operation of the latter Act, if he have then
been imprisoned for more than six months but
less than two years.
Per Westropp, C.J.:— The judgment-creditor
had, under Act VIII. of 1859, a right, on the con-
dition of regularly paying the subsistence money
in the order of committal directed to be paid, to
have the judgment debtor detained in custody
for two years, if he did not in the meantime
fully satisfy the decree. The language of
Chapter XIX. of the new Civil Procedure Code
(Act X. of 1877) is purely prospective, i*., deals
with the future only, and does not touch any
proceedings already taken in execution of
decrees. Sub-division I. of that Chapter is
essentially prospective throughout, and f 34a
must be considered to relate to future imprison.
D.gmzed by G00gle
( 265 ) DIGEST OF CASES,
CIVIL PBOOEDUBE COSE, ACT X. OF CIVIL PROCEDURE CODE, ACT X, OF
1877— contd. 1877-cmtd.
mcnt consequent on arrests to be made under
Act X. of 1877. There is no trace in Chapter
XIX of any intention on the part of the Legis-
lature to deal with imprisonment commenced
before the new Code came into force.
The committal under the old Code, while yet
in force, of a judgment debtor by a Judge to-
wards satisfaction of a decree against that judg-
ment debtor, being a. thing done under that Code,
is clearly within the language and meaning of,
and saved by, the General Clauses' Act (1. of
1S68), i 6, notwithstanding the repeal of the old
Code, under which that thing was done ; and if the
continued detention of that judgment debtoi
be regarded as procedure, that detention, having
commenced before the new Code, which repealed
the old Code, came into force, is expressly saved
by the General Clauses' Act, and cannot be go-
verned by the new Code. The effect of Act I.
of 1868, f 6, and Act X. of 1877, f 3, is to re-
move from the scope of the latter Code such
proceedings (after dceree) as had been initiated
before and were pending when the new Code
came into force, and to leave within its range
all proceedings (after decree) initiated subse-
quently to its coming into force, even though
the suits in which such last -mentioned proceed-
ings may be taken be suits which were com-
menced, and the decree itself made, before the
new Code came into operation.
Therefore, even supposing the rule laid down
in Wright v. Hole (6 H. & N. aaj), as to the re-
trospective effect of enactments relating to pro.
cedure, to apply, still ( 34a of Act X. of 1877 is
not retrospective. Togive tosuehanenactment
as J 343 of that Act a retrospectivi
lion, would be no mere alteration of procedi
but a distinct deprivation of a right to keep the
debtor in prison for two years, subject to sucb
application as he might make under the Insolvent
Debtors' Act, or g§ 280 and 281 of the old Civil
Procedure Code. And, in the absence of ex.
press direction or unmistakable implication to
the contrary in the taw itself, the presumption
is that a statute depriving the subject of a vest-
ed right is not retrospective. Though it may
be that this presumption does not exist where a
statute is remedial and merely alters procedure,
yet if the change of procedure when sought to
be applied retrospectively be complicated by the
divestment of a pre-existing right, the presump-
tion against such
strength.
Per Sargent,].-.— The effect of f { I and 3 of
Act X. of 1877 and f 6 of Act I. of 1858 is that,
whilst saving all acts already done in execution
of a decree in a suit instituted before Act X. of
1877 came into force, all matters of procedure
in execution subsequent to that date must be
determined by the Act itself. The question
before the Court was one of procedure. The
writ of imprisonment is by its very nature con-
tinuous in its operation, and the conditions and
periodunderandforwhich it remains in force and
activity, are as much matters relating to proce-
dure, as the issuing of the writ itself. Neither
the words ol § 341, nor of the heading to Chapter
XIX. of Act X. of 1S77, necessarily confine the
imprisonment there referred to, to imprisonment
commenced since the Act came into operation.
Though the judgment creditor by the attach-
ment of bis debtor's property, as well as by the
arrest and imprisonment of his debtor, acquires
a right of a very distinct and specific nature, and
different from the mere right of a plaintiff to
have his cause of action tried according to a
certain procedure, yet the rule that an Act is
not to be so construed as to defeat an existing
right, is only a rule of construction, and must
yield to the intention of the Legislature. That
intention may be gathered with sufficient cer-
tainty from §§ I and 3 of Act X. of 1877, cou-
pled with the strong presumption which arises
from the nature of the change in the law ; for it
is difficult to suppose that the Legislature, when
introducing a most important and benign change
in the law of debtor and creditor, in harmony
with modem legislation, could have intended
that the two laws should continue for the next
two year* to operate concurrently, and that
debtors who were imprisoned on the day previ-
ous to that on which the Act came into force,
should be liable to be detained under the severer
Per Bayley, J.:— Formerly In England, and in
Bombay until the Supreme Court was abolished
in 1862. the power of a judgment creditor to
keep bis judgment debtor in prison lasted until
the latter paid or tendered the amount directed
to be levied, or unless he was released under
the provisions of the Indian Insolvent Act.
This power of detention of the judgment debtor
3lgltlzSdb»COOglC
( 267 ) DIGEST OF CASES.
CIVIL PROCEDURE CODE, ACT X. OF CIVIL PROCEDURE CODE, ACT X. OF
ia77—cotHd. lBT7—c<mtd.
in prison was limited by Act VIII. of 1859 to
two years, by § 280 of that Act. Further limits
on that were placed by JJ 273 and 280, and the
case of Coombe v. Can (13 Beng. L. Rep. 268,
22 Cal. W. Rep., Civ. Rut. 257) is inconsistent
with the inviolable right claimed for the judg-
ment creditor to detain his judgment debtor in
prison for two years.
The sections of Act VIII. of 1859 relating to
imprisonment in execution of a decree and its
duration relate to procedure alone.
To describe the power, which the execution
creditor in India has had in the Presidency Towns
since 1862, of putting and keeping his judgment
debtor in prison, as an inviolable right, or any-
thing equivalent to it, is fallacious. The defini-
tions of " decree" and "judgment debtor" in Act
X. of 1877 are sufficiently wide to embrace
decrees passed, and judgment debtors who have
become such, before 1st October 1877, 1
that Act came into force. Sections 341 and 342
of Act X. of 1877 are applicable to proceedings
pending when that Act came into operation.
The Legislature intended the improvements which
are in the new Code to apply to suits brought
under the old Code in those cases in which,
consistently with the provisions of the new Code,
they might, upon the ordinary principles of the
interpretation of statutes, be clearly applicable.
Section 3 of Act X. of 1S77 implies that the
procedure after a decree, in a suit instituted
before the Act came into force, shall be accord-
ing to the provisions of Act X. of 1877, and the
present application must therefore be regulated
by that Act. Act 1. of 186S, f 6, does not apply
to the present case.
When of two possible constructions, one is in
strict harmony with the improvements contained
in the Act, and is not merely not inconsistent
with the plain grammatical language used, but
follows the provisions and directions therein
contained, as well as the benign spirit of modern
legislation on the subject of imprisonment for
debt, and, moreover, prevents a grave injustice
being inflicted upon the civil prisoners already
in custody in British India when the Act came
into operation, while the other construction
treats the point under consideration as not hav-
ing been considered by the Legislature at all, the
former construction should be adopted.
Per Green, J. :— Apart from § 1 and the proviso
to § 3 of Act X. of 1877, there is no provision
in that Act as to its operation with regard to
pending or past proceedings.
Section I does not alter or abridge the legal
effect, after the 1st October 1877, of proceedings
had and Anally determined under Acts VIII. of
1S59 and XXIII. of 1S61, before the new Code
came into operation; and in construing f 3,
regard must be had to Act I. of 1868, f 6, though
the general rule of construction in the last-men-
tioned section must yield to the intention of
the Legislature expressed in any subsequent Act,
that to a greater or less extent that rule is not
to apply to such subsequent Act ; and in the
proviso to I 3 of Act X. of 1877, coupled with
§ I of that Act, is to be gathered the intention
of the Legislature that, to a certain extent at
least, such rule was not to apply so far ast
concerned the repeal of the previous procedure
laws effected by § 3. Ample effect would be
given to the proviso, and to such intention,
while at the same time regard would be had
to § 6 of Act I. of 186S, by holding that in all
future — i. c, future with reference to 1st Octo-
ber 1877 — steps and proceedings, not being
prior to decrees in suits instituted and appeals
presented before 1st October 1877, the provi-
sions of the new Code are to be observed anil
operative. The cases as to the restropeetive
effect ot statutes relating to procedure all deal
with the question whether, where some new step
is taken in the course of pending proceedings
after the new statute came into operation, and
on which new step being taken the new statute,
has imposed some restraint or conferred some
benefit on one or other party to the proceeding,
such restraint or benefit is not to have effect,
and they do not involve this, that a statute con-
cerned with judicial procedure, though affecting
pending suits as to all future, proceedings in
such suits, interferes with or affects steps and
»dings already, at the time such statute
! into operation, taken and determined, la
the present case, no new proceeding had been
taken, or was necessary to be taken, to detain
the petitioners in custody under warrants issued;
by virtue of Act VIII. of 1859. The right of
the execution creditors to detain their debtor!
custody till satisfaction of the decree, (but
exceeding the period of two years,) is a
right having relation to property, and is not t»
D,„i„.db»Googlc
DIGEST OF CASES.
be taken away, except by the clearly expressed
will of the Legislature, and is in no way affected
by Act X. of 1877.
Per West,].: — A legal relation between the
parties concerned is equally constituted by a
judicial order as by their own agreement. The
judicial transaction, consisting in any inquiry
and an order of the Court under a particular
law, is a matter as to which that law, though
repealed, atin has full effect. The decision
ascertains or creates a legal right, which must
afterwards be guarded in the unfolding and out-
growth of all its regular consequences. Act
VIII. of 1850 must have clothed the Court's
orders with an abiding validity, the judgment
creditor with an abiding right, or else with none
at all. The ministerial officer is to act on the
order of the Court according to its original
purport, and the jurisdiction under which it was
issued. The order itself, in the absence of an
express provision to the contrary, retains its
validity until it is withdrawn or varied ; and the
new procedure, therefore, does not apply, except
perhaps in matters of mere administration, or pro-
visional arrangement, whether as touching person
or property. It cannot apply, so as to annul an or-
der properly made, a relation legally constituted,
and thus deprive the creditor of his right once
acquired by the arrest of his judgment debtor in
execution. Any change in the relations of the
parties can be made only iu accordance with the
latter and existing law ; but their previously sub-
sisting relations continue to exist as before. It
is unlikely that the Legislature intended the limit-
ing provision of § 343 of Act X. of 1S77 to be
applied to cases of imprisonment other than
those arising under the Code itself. As a simply
negative provision, § 342, by itself, would have
no effect, but the affirmative provisions with
which it is to be read are found in the same
chapter, and they can only be applied to cases
arising after the Act came into force, and thus
the limiting provision (§ 342) would itself be
limited. Had the change in the maximum of im-
prisonment been from six months to two years,
it could not have been contended that debtors
already in jail might be detained there eighteen
months longer, under the new Code, than the old
one allowed. The close of the litigious transac-
tion, like that of a contractual one, fixes the
rights of the parties according to the then exist-
ing law, and in principle there is no distinction
between a construction of a new law, prejudicial
to the debtor, and one prejudicial to the credi-
tor. The imprisonment under Act VIII. of lS<y
as a " proceeding commenced," comes within
§ 6 of Act I. of 1868, and would therefore not
be affected by the rules in Act X. of 1877, even
if there had been no provision in that Code as to
matters still pending. Tbeiefore, Act VIII. of .
■ S50, and not Act X. of 1877, governed the en-
forcement, or attempt to enforce the judgment
creditor's decree throughout the proceedings
consequent on his application for the debtor's
imprisonment Under Act VIII. of 1859 the ap-
plicants were not entitled to be released, and
their applications should therefore be rejected.
If the present application for discharge be a pro-
ceeding commenced since the new Act came into
force, it is not integral with the previous proceed-
ings in execution, and therefore cannot affect the
law by which they must be governed. If, on the
other hand, it is integral with them, it is part of a
proceeding commenced before the new Act came
into force. In neither case can it hring within
the new Act, orders deriving their validity and
effect from another law. In the matter of the
Petition of Rattansi Kalia.vji I. L. Bep.
3 Bom. 148, 1877.
SS 34*. 345. 35"— !nsol*ency-0«*s Pro-
bandi — Appeal.'] A person applying under
§ 344 of Act X. of 1877 must satisfy the Court
that his case comes within the provisions of
§351, and the burden of proof lies upon hi™. An
Order dismissing such an application is appeal-
able under § 588 (n). MuMTAZ Hossein v.
Brij MoHUM THAKOOR. Jacksen and McDonnell,
Jj 1. 1,. Rep. 4 Cavl.888, 1878.
Chapter XX.
Ste Jurisdiction. S.
AbDOOL HAMBD...X. L. B«P. 4
Cat. 94.
__ § 360— Inapplicable to Small Cause Court
See § 5, ante.
Lallv v. Ranchoo-.I. L. Hop.
S Bom. 641.
§ 380— Residence —Practice — Security for
Costs.] The word " residence " may receive a
larger or more restricted meaning according to
what the Court believes the intention of the
Legislature to have been in framing the particular
provision in which the word is used. Sectiou
D.gmzed by G00gle
( m } DIGEST OF CASES.
CIVIL PROCEDURE CODE, ACT X. OF CIVIL PBOCEDITBJI CODE, ACT X. OF
1877— ttmtd. 1877— centd.
383 of Act X- o( 1877, shows the intention of
the Legislature that the " residence " spoken of
in | 380, should be residence under such cir-
cumstances as will afford reasonable' probability
that the plaintiff will be forthcoming when the
suit is decided. Each case must, therefore,
depend on its own particular circumstances.
Mahomed Shufi'li v. Laldih Abdulla. Sar.
j„nt, J I. L. Sep. 8 Bom. 837, 1878.
IS 394. 395-
Set Account. 3.
RUSTOHJI V. KESSOWJ1 ... Z. Ir.
Rap. 8 Bom. 161.
,407.
See Appeal-Civil. 18.
Co [.lis *. Manohar Das... I. I>.
Sep. 1 All. 745.
„w I 440— Suit by Mother as Guardian of
Minor Sons— Certificate necessary.
See Bombay Minor*' Act XX. of
1864,(8.
MUBLIDHABfl. S(jraU...I.tl.EBp.
8 Bom. 149.
-— S 515— Subordinate Judge with Small
Cause Powers.
St Award.
Balkrishna v. Lakshi>an...I. L.
Bep. 3 Bom. 310,
i S33— Practice— Summery Butt on Pro.
misiory Note— Extending Time fir Defendant
to appear.] Inasmuch as 5 532 of Act X. of
1877 provides that the summons shall issue
either in the form mentioned in the schedule, or
in such other form as the High Coart may from
time to time direct, the High Court has power
to extend the time within which a defendant in
a suit brought under Chapter XXXIX. of the
Civil Procedure Code (Act X. of 1877) can
come in and obtain leave to defend. Where it
appeared that the defendant was an officer
stationed at Peshawar, the time for the defendant
to obtain leave to appear and defend was
extended to 28 days. Groom «. Wilson.
Pontifex, }..■■!. L. Sep. 8 Oal. 680, 1878.
S 539- Devaitkan Property.
See Right to Saw. 10.
Radhabai v- Chtmnaji Rakji
Sali. L Xj. Bep. 8 Bom. 97.
-§540.
See Appeal— Civil. 6.
RuHjrr Singhv. Mbhbbbah Koeh.
I. L Rep. 3 Oal. 663.
-5S4o.
See Appeal— CiviL, 3.
Lakhmidas v. Ebraiiim Lit.
Rep- 3 Bom. 644.
- § S44 — Decree on Appeal.
See Civil Procedure Code, Act
VHLofl85&, J 887.
Jovkisto v. Nittyanund...I. L.
Bep. 3 Cal. 788.
-SS49-
See Security for Cpata. 1.
Haidri Bai ». E. I. Ry. Co L
L. Rep. 1 AIL. 687.
- § 575-
See Letters Patent — Bombay —
I860, CI. 36.
Appajiv- Shivlal...!. It. Bep,
8 Bom. 204.
- § 584— Appeal from Order returning Plaint
for Presentation of Plaint to proper
Court, made after Admission of Suit.
See Appeal— CiviL 30.
Kalian Das e. Nawal Singh,..
1 L. Bep. 1 ALL 630.
_ § 584 — Execution of Decree — Appeal from
Order.
See Appeal— Civil. 38.
Uda Beg am v- Imam-ud-din...
I. L, Bep. 3 AIL 74.
-§S»-
See Appeal— Civil. 0.
RUNJIT SlNQH V. MSHBBBAN
Koer...I. I.. Bep. 8 CaL
683.
- 3 j88— Appeal against an Ex-parte Decree
and Order refusing to set the same aside.
Sec Appeal— Civil. 3. 18.
Lakhmidass d. Ebrahiu.-I. L.
Bep. 3 Bom. 644.
GULAB Singh 1. LaOImAp) Das...
L L.Rep. 1 All. 748.
- i J88— Appeal from Order passed in Exe-
cation of Decree before Act X. of 1877
came into force
See Appeal— Civil. 96.
Thakur Prasad •. Ahsah A11...I.
L. Bep. 1 All. 668,
lionized by Google
( lit ) DIGEST OF CASES. < 274 )
CIVIL FBOOEDtTSE CODE, ACT X. 07 CIVIL PROCEDURE CODE, ACT X. OF
1877- 1»»«. 1877— centd.
— % 588— Appeal from Order refuting Leave
to sue infbTtH&PauprrU.
See Appeal— Civil. 18.
Colus «. Manohar Das... I. L.
Rop. 1 AIL 746.
— | 588— Execution of Decree— Btmd— Regis-
tration Act XX. 0/ [366— Appeal.'] An applica-
tion was made to a District Munsiff, on the 16th
July 1877, to issue execution on a decree dated
6th November 1869, obtained on a bond regis-
tered under $ 53 of Act XX. of 1S66. He made
an order refusing the application, tbe decree
being one passed not in a regular suit, but ii
summary suit, and governed by the period of
limitation prescribed by Article 166, Scbed. II,
Act IX. of 1871. On appeal the Subordinate
Judge reversed the order of the Munsiff, holding
that Article 167, Sched. II. of Act IX. of 187)
On application to the High Court— Held, that
as I 588 of Act X. of 1877 provided that orders
passed in appeal from orders under § 344 of that
Act should be final, no second appeal lay.
Held also, that Che High Court could not inter-
fere, under $ 621 of the Act, as the Subordinate
judge had jurisdiction to hear tbe appeal. Su-
KYAPRASAKA RaU H. VaISYA SaNNYASIRAZV.
Ktrnan-Aai Sfuttusarxi Ayyar, JJ...I. L. Rep.
lHad. 401, 1878.
— i 588 (<)— Appeal from Order returning
Plaint after Issues framed.
Set Appeal— Civil. S3.
Abdul Samao «, Rajindro...I. L.
Sep. 3 All. 307.
S 5*8 0)— Execution of Decree— Appeal
from Order.
See ante, g 944.
See Appeal— Civil S3. 88.
Miirli Dkar v. Pursotuh Das...
X. L. Sep. 3 All. 91.
Uda Begam 1. 1uah.ud.din... I.
L. Sep. 8 AIL 74.
i 588 (»).
See Appeal-Civil. 89.
GC-PAL SlHBH B. DlILAK Kdar...
I. L. Sep. 8 All. 868.
( 588 (») — Appeal from Order refusing Ap-
plication under f 344.
Stei 844.
MiiMTAZ Hossein v- Brij Mohun.
X L Step, 4 CaL 888.
— S 591 — Appeal against an Ex.parte Decree
and an Order refusing to set the same
See Appeal -Civil. 3. 18,
Lakh hid as b, EettAHiM I. L.
Sep. 8 Bom. 644.
Gulabh Singh v. Lac khan Das...
I. L. Sep. 1 AIL 748.
_g 6jj — Execution of Decree — Error in
Law — Appeal.
See 5 688, ante.
S IT BY APR AS A KA V. VAISYA SaNNI-
yasi.-.I. 1 Sep. 1 Had, 401.
-*6*7.
See Appeal— Civil. 88.
Gopal Singh v. DularKuar... L
L. Sep. 8 AIL 80S.
- J 647 — Proceedings in Execution instituted
before Act X. of 1877 came into force—
See Appeal— Civil. 88.
Thakur Prasad v. Ahsam Au...
I. L. Sep. 1 All. 668.
-5648.
See Execution of Decree. 81.
Badah Bbbajea o. Kala Chand
Bbbajea. .,L L. Sep. 4 CaL
883.
CLAIM AGAINST ESTATE OF LNTES-
TATXIFOB MONEY T AH) AFTER
HIS DEATH EOS THE SURVIV-
ING MEMBERS OF HIB FAMILY.
See Administration. L
Danjibhai «. Navazbai X L.
Sep. 3 Bom. 76.
CLAIMS TO IMMOVEABLE PRO-
PERTY AGAINST EXECUTORS
OS TSUBTEEa
See Aot XXVII. of I860, j 3.
Trrrpoorasoondrry v. Drbeh-
dronath...L L. Rep. 8 Cat,
46.
CLASS — Bequest to a — some of whom not in
Existence at Testator's Death.
-S*. Hindu Law— WilL 4.
Kherodbhoney o. Dogroauohry.
L Xi. Sep. 4 CaL 466.
And see Trebpoobasoondery v.
Debendronath...I. L. Sep.
8 Cal. 46, p, 58.
Under Limitation. 38.
zedbyGOOgle
DIGEST OF CASES.
VLABB-contd.
Bequest to a — Remoteness.
See Hindu Law— Will 7.
SoUDAMOHEY B. JoOESH CHAMBER.
I. L. Sep. 9 Cal. 862.
— — Gift of Residue to a. — Postponement of
Period of Distribution— Act X. of 1865,
H 98, IOI, 102.
See Will. 4. 6.
Masevk v. Fergusson I. L.
Hep. 4 Cal 304, 670.
CLAUSE IN WILL RESTRAINING
PARTITION OH ENJOYMENT.
Set Hindu Law— WilL 1.
MoKOONDO L*LL «. GONESH CHUN.
DBR...L L. Bap. 1 Cat. 104.
CLOSE HOLIDAY— Limitation to Suit for
Arrears of Rent expiring on — Presenta-
tion of Plaint next Court Day, too late.
See Limitation. 13.
PUKKAN ChUNDBR e. MuTTY LaLL.
I. L. Hop. 4 Cal. 60.
——Limitation expiring on — Presentation of
Plaint next Court Day.
Ste Limitation. 6.
Bis man Chano v. Ahmad Khan.
L L. Hep. 1 All. 263.
COINAGE, CONVERSION OF.
See Enhancement of Kent. 8.
Mber Mahomed Hossain v.
Forbes ,.L, Hep. 3 I. A. 1
CO-XHAHDARB.
Suit by one of two Co-Inamdars to Eject a
Tenant.'] One of two co.inamdars, even though
be may be tbe manager of the inam estatt
as to bind his co-sharer by his acts, cannot n
tain a suit to eject a tenant against the express
wishes of his co-sharer. Krishnaravd. Govind.
Kembatl and N, ffarridas, JJ L L. Bap. 3
Bom. 26, n., 1870.
COLLECTION OB POSSESSION OP
SALT EARTH.
S« Madras Reg. I. of 180B, % IS.
Reg. «. Pyla Atchi...L L. Hop.
1 Had. S76.
COLLECTOR— Acts done by — in Official
Capac ity — J urisdiction-
See Jurisdiction. 18.
Gangadhar *. Collector
AHMBDNACAR...Z. L. Bep. 1
Bom. eas.
COLLECTOR— contd.
— Appointed to take Charge of the Estate of
a Minor — Jurisdiction over.
See Bombay Minora' Act XX. of
1864, 5511 and 18.
NaKSIHCRAV r. LlfXAMAN.I. L.
Bep. 1 Bom. 318.
— Report of.
£w Reports of Collectors.
Rajah Mitter r. Pekianayagum.
L. Rep. 1 L A. 309.
COLLECTOR OF BBA CUSTOMS, MA-
DRAB— Suit against— Jurisdiction.
See Juried icti on. 13.
Collector of Sea Customs, Ma-
dras, V. PANNIAR CHITHAM-
baram...L L. Bep. 1 Had.
89.
COLLUSIVE CONVEYANCE TO DE-
FEAT THE RIGHTS OF THIRD
PERSONS- Denial by Grantee of Trust
in Favour of Grantor — Right of Grantor
to show the Nature of the Transaction.
S« Estoppel. 8.
Param Singh •. Lalji Mai... I.
L. Bep. 1 All. 403.
COHHE CENMENT OF PROSECUTION
A prosecution commences when the com-
plaint is made, the reception of tbe complaint
being a stage of the judicial proceedings to-
wards a conviction. Ivpx. e. Lakshmak Hari.
and Pinhey, J J ...I. L. Bap. 8 Bom. 481,
1877.
S. C. under Sanction to Prosecute. 4.
COMMISSION— Awarded to Administrator
General — Appeal from Order.
See Administrator Generals' Act
II. Of 1874, §27.
Soma sun dar am Chetti v. Admi-
nistrator General. ..I. L.
Bep. 1 Had. 148.
- Right to be examined on.
See Fardanasbin Female. 1.
Hurroo Soondhrv...L L. Bep. 4
Cal. 90.
1 SALES— Compensation
for Loss of Life — Agent of Company —
Winding up — No implied Contract to
continue Partnership at all risks (or
Abandonment of Right to wind up), or to
pay Compensation.
b, Google
DIGEST OF CASES.
<-« )
COMMISSION ON SALES— contd.
Lalbhai v. K>vasji...8 Bom. H. C.
Bep. 0. C. J. 208 ; I. L. Bop. 1
Bom. 468 ; and L. Hop. 3 L A.
SOO.
COMMISSIONER FOB TAKING AC.
COUNTS— Motion to discharge or vary
Report of.
See Practice— Civil, 7.
Suiiab Ahmed v. Haji Ismail...
I. L. Bep. 1 Bom. 168.
— Power of— to Grant Certificate.
Sir Account. 3.
Rustomji n. Kisowji...! L. Bep. 8
Bom. 181.
Reference to, Effect of.
See Account. 2.
Watson v. Aga Mehedke She-
razee.. .L. Bep. 1 1. A. 348.
COMMISSIONER'S REPORT— Motion to
discharge or vary.
See Practice— Civil. 7.
Sumar Ahmed v. Haji Ismail...
I. L. Bep. 1 Bom. IBS.
COMMITTAL— After Charge drawn up.
Set Criminal Procedure Code, Act
X or 1878, §§220,231.
Empress v. Kudrutullak...I. L.
Bep. 3 Cat. 495 ; 3 Cal.
Bep. 3.
By Magistrate to whom Case referred for
Enhancement of Punishment.
See Criminal Procedure Code, Act
X. of 1873, (48.
Chinnimarioadu.-.I. L. Bep. 1
COMMON-Right of.
VlSHVANATH V. MaHADAJI. ,.I. Tj,
Bep. 2 Bom. 147.
COMMON LAW RULES OF SUFBBME
COURT— Rule 149— Application by At.
toroey under.
Set Attorney and Client. 1.
Aba Ishmail v. Aba Thara.X
L. Bep. 1 Bom.. 368.
COMMUNICATION BY CLIENT TO
HIS ATT0B.NET IN PREBENCE
OF THE OTHER SIDE.
See Privileged Communication. 2,
Memon Hajee Harooh Maho-
MED «r. MoLVI ABDUL KaRIM.
I. L. Bep. 3 Bom. 81,
COMPANY- Agreement to take Shares in.
See Agreement to take Snares in a
Company.
ANANDJI VlSRAM V. THE NARIAD
S. and W. C0...I. L. Bep. 1
Bom. 320.
Contributory.
See Company— Winding up— Con-
tributory.
The London, Bombay, and M bdi-
TERRANEAN BANK V. BHANJI
Zi/tani...L L. Bep. 3 Bom.
116.
Directors — Powers of, to borrow and
mortgage.
See Powers of Directors to Borrow
and Mortgage.
Irvine v. Union Bank of Aus-
tralia ..L. Bep. 4 L A.
86; I. L. Rep. 3 CaL 280.
— Directors— Ratification of particular Acts
of Directors in Eicess of Authority, not
an Extension of Future Authority.
See Powers of Directors to Borrow
and Mortgage.
Irvine v. Union Bank of Aus-
tral [ a.. L. Bep. 4 L A.
86 ; L L. Sep. 3 Cal. 280.
Illegal — Unregistered Association of more
than twenty Artizans for purposes of Gain,
Sri: Company. 1.
— ^— Memorandum of Association' — -Provision in
Memorandum of Association of — em-
powering Subdivision of Shares.
See Agreement to take Snares.
Anandji Viskam d. Nariad S. &
W. Co... I. L. Bep. 1 Bom.
330.
Memorandum of Association — Variance
between Memorandum of Association and
Prospectus.
See Agreement to take Shares.
Anandji Visum v. Nariad S. ft
W. Co.., I. L. Rep. 1 Bom.
D,gltlzed by G00gle
DIGEST OF CASES.
COMPANY— contd.
Power of Directors to bind — by Bill of
Exchange.
See Power of Directors to bind
Company by Bill of El-
change.
New Fleming S. and W. Co.
(Limited) I. L. Bop. 3
Bom. 439.
Powers of Directors to Borrow and Mott.
gage.
See Powers of Directors to Borrow
and Mortgage.
Irvine b. Union Bank of Austra-
lia...!.. Bep. 41 A. 86;
L L. Bep. 3 CaL 280
— Ratification by — of particular Act of Direc
tors in Excess of Authority, not an Exten-
sion of Future Authority.
See Powers of Directors to Borrow
and Mortgage.
Irvine o. Union Bank of Austka-
lia.-.L. Bep. 4 L A. 86;
I. L. Bep. 3 CaL 280.
■ "-Unregistered Association of more than
twenty Artizans for purposes of Gain.
See Company. 1.
Buikaji «. Bapu...I. L. Bep. 1
Bom. 650.
•—Variance between Memorandum of Associa-
tion and Prospectus.
Set Agreement to take Shares.
Anandji Visram v- The Nariad
S. andW. Co...I.1. Bep. 1
Bom. 320.
Act X. of 1866, f 4— Association of Atti.
tans— Illegal Agreement.} An association of
artizans for the purpose of enhancing the price
of the work by bringing all the business of the
trade into one shop, and dividing the price of
the work done among the members according
to their skill, is an association that has for its
object the acquisition of gain, and, if consisting
of more than twenty members, must be regis,
tered.
Where more than twenty artizans signed an
agreement whereby they constituted themselves
an association for the above purpose, but which
association was not registered as a Company
under Act X. of 1866 :—
COMPANY— coHtd.
Held, that the Court could not grant an in-
junction to restrain the breach of such agree-
ment. Bhikaji Sabaji o. Bafu Saji. Sargent,
J X. L. Bep. 1 Bom. 860, 1877.
COMPANY— WINDING UP— Interest 00
Debts subsequently to Date of Winding.
See Power of Directors to bind
Company by BUI of Exchange.
New Fleming S. and. W. Co.
(Limited)... I. L. Bep. 8
Bom. 437.
1. Transfer of Assets to Nev Company-
Indian Companits' Act X. of 1866, ff 149, 154,
and 175 — Right of Creditors of transferring Com'
pany — Dissentient Shareholder — Sanction of
Court.] By special resolutions passed on the
3rd July 1878, and confirmed on the 31st July
187S, the shareholders of the Fleming Spinning
and Weaving Company (Limited) resolved that
the company should be wound up voluntarily,
and that all the assets of the said company
ihould be transferred by the liquidators to a
lew company then intended shortly to be formed
and registered in Bombay, called the New Flem-
ing Spinning and Weaving Company (Limited),
and that the liquidators should receive as the
consideration for such transfer, certain fully
up shares in the new company for distribm-
imong the shareholders of the old company.
said transfer was to be made subject to a
on the part of the new company to
perform all the agreements and to discbarge all
the debts and liabilities of the old company.
The new company was duly formed and regis-
tered on the same day (31st of July 1878), and
the specified number of shares was delivered to
the liquidators of the old company for distri-
among the shareholders of the old com-
pany- Two of such shareholders, J. and H-, the
holders of 50 and 20 shares respectively, dissent-
ed from the special resolutions in the manner
required by f 175 of Act X. of 1866, and requir-
ed the liquidators to purchase their interests,
as thereupon referred to arbitra-
tion. In the case of H. an award was made
filed, but further proceedings were stayed
by the older of the Court. In the case of J.
award was made, and he brought a suit which
3 still pending, against the old and the new
companies and the liquidators, to recover Rs.
>, the alleged value of his shares. In Dar-
by Google
DIGEST OF CASES.
COMB AN Y- WINDING XTB-contd.
suance of the resolution, the liquidators of the
old company handed over the assets to the
company. They remained in its possessio
the 17th of Januaiy 1879 when the new company
was ordered to be wound up by the Court. The
petitioners were appointed official liquidators,
and as such were in possession of the assets at
the date of the petition. No property whatever
remained in the hands of the old company,
except the shares remaining to be distributed
Among the dissentient shareholders. The ni
company had discharged debts of the old coi
pany to the extent of six laksof rupees, and there
remained debts of over three laks due by thi
old company. Until after the new company be-
came insolvent, no creditor of the old c
npany
had expressed his dissent from the above speei;
resolution, or had refused to accept the
company as his debtor. On the 1st of March
1879, the voluntary winding up of the old
pany was directed to be continued as a winding
up under the supervision of the Court. The
official liquidators of the new company noi* pre.
sented a petition, praying that the above special
resolutions might be sanctioned by the Court.
Certain unsatisfied creditors of the old company
opposed the petition, insisting that the sanctior
should not be granted, except on the conditio!
that they should be paid in full out of the pro-
perty of the old company. The two dissentient
shareholders', H. and J., also objected to the
sanction being given, unless provision were made
for the satisfaction of their claims as soo
they could be ascertained 1 —
Held, that the sale and transfer of the bus:
and property of the old company was not
ab initio by virtue of % 149 of Act X. of 1866
because the claims of creditors had not been
previously satisfied or secured.
As to the considerations which ought to
influence the Court in granting or refusing its
sanction, it would not be prudent to attempt a
more specific statement than is given by Lord
Matberley in Re Agra and Sfasterman's Bank
(L. Rep. 12 Eq. 509, note), where hesays :— " In
truth, the function of the Court seems to be
reduced to seeing that everything has been fairly
done and put before the creditors and share-
holders, and that they have been informed of
all that they ought to be informed of ; that a
decision has not been snatched by surprise ; that
there has been nothing which would induce a
Court to say that there had been either a fraud or
COMPANY— WINDING TSS-eonti.
surprise upon the person sought to be affected
by it." Applying that principle, under the spe-
cial circumstances of the case, the unpaid cre-
ditors could not successfully oppose the applica-
tion for;
Their course v.
o prove
for their debts under the obligation assumed by
the new company to satisfy the past debts and
liabilities of the old company. The debts of the
old company were not a specific charge on the
property in the hands of the new company. By
virtue of § 175 of Act X. of 1866, it was aeon.
dition of the resolution being binding on the
dissentient shareholders H- and J„ that they
should be paid the value of their interest in the
business and property intended to be trans-
Under the special circumstances of the case,
the new company having taken the property
and assumed all the liabilities of the old com-
pany, which would include the liability to pur-
chase the interests of dissenting shareholders,
there being no laches in those dissenting share-
holders {H. and y.), and the property being
within the jurisdiction of the Court and under
its direct control by virtue of the winding-up
order, the Court ought to place the dissenting
shareholders, with respect to the property of the
old company, in the same position as It would
have placed them had they applied under f 154
of Act X. of 1866, for an injunction to restrain
the transfer until a fund was provided to secure
the payment of their interests.
The sanction of the Court, therefore, was given
> the resoluiion, subject to the value of the
interest of H. and J. being paid or adequately
red ; this order being without prejudice to
any question between the creditors of the old
ipany and A", and jr. In re The Fleming
■jning and Weaving Companv (Limited).
Sargent, J... I. L. Hop. 3 Bom. S98, 1879.
8. Practice— Notice of Appeal— Exten-
of Time for Appeal— Act X. of 1866, , 141.]
Notice of an appeal against any order or deci-
made or given in the winding up of a com-
pany by the Court, must, under § 141 of Act X
of 1866, be given to the respondent within three
weeks after the order or decision complained of
has been made. The fact that under that Act
In connection with the Civil Procedure Code,
the service of such notice is effected by the
Court, and not by the appellant himself, so that
the appellant's right of appeal may depend not
by Google
DIGEST OF CASES.
(
)
COMPANY-WINDING DP— «*ftfc
on himself, but on whether the officer of the
Court performs his duty, makes no difference.
The appellant should ascertain whether the
notice of appeal has been duly given, and if he
finds that it has not, he should apply to extend
the time.
The Court has power to extend the time for
giving the notice after the three weeks had ex-
pired, upon special circumstances being shown.
In the matter o/TheSarawAk AMD
Hindustan Banking and
Tradino Company, Limited,
i. allah barroomui. v. the offi-
CIAL Liquidator. Garth, C.J.
and White, J....L L Bop. 4
CaL 704; SCaLBep. 081,
1878.
COMPANY— WINDING UP-CONTBL
BUTOBY— Balance Order—Description of Hol-
der of Shares— list of Contributories— Evidence-
Amendment of Plaint.'] Where the holder of
shares in a company was described in the list of
con t rib u tones, against whom a balance order of
the Court of Chancery had been made, as " Devji
Bhanji, Cotton Merchant," and as being sued
" in his own right " : —
Held, that the plaintiff company could not be
allowed to give evidence that the shares were in
fact held by a firm consisting of two individuals,
named respectively Bhanji Zutani and Devji
Hemraj ; as the balance order being a part of the
record in Chancery, as such, imports incontro-
vertible verity, nor could the plaintiffs at the
hearing of the appeal, be allowed (o amend their
plaint, originally framed against both partners,
with a view to make the firm liable for the
amount of the calls, so as to sue Bhanji Zutani
only, who alone was alleged to have signed the
Articles of Association in the name of Devji
Bhanji, and to make him personally liable as the
holder of the shares.
The London, Bombat, and Medi-
terranean Bank e. Bhanji
Zutani. Westropp, C.J., and
Green, J ...I. L. Bep. 3 Bom.
110, 1877.
OOMPABATIVE WEIGHT OP AUTHO-
RITY OP HINDU LAV BOOKS.
See Hindu Lav— Authority of
Writers.
COMPENSATION— Apportionment of— for
Laud taken up for Public Purposes —
Finality of Decree— Right of Suit.
See Land Acquisition Act X of
1870.3.
Nilhonice Singh •. Rambuk-
DHOO...L X. Bop. 4 CaL 787.
To Complainant.
See Compensation. 1.
■ For land taken up for Public Purposes.
St* Land Acquisition Act X. of
1870. 1.
PUHCHAND BURRAL «. THE COL-
LECTOR of Calcutta. ..I, X..
Bep. 3 CaL 108.
Criminal Procedure Code, Act X. of ifyi,
f 209 — Complainant.] A lartun on the estab-
lishment of a Civil Court, entrusted with the
execution of a writ, reported to the Court that a
particular person obstructed him in attaching
property as commanded by the writ ; and a re-
port was therefore made by the Court to a
Magistrate, with a view to proceedings being
taken against the obstructor. The Magistrate
acquitted the accused, and ordered the kariun
pay the accused compensation, under f 309
pf the Criminal Procedure Code : —
Held, that this last order was wrong, the
karhun not being a complainant within the mean-
ing of j 209 of the Criminal Procedure Code.
In such a case the Subordinate Judge must be
considered as the complainant, and be, having
acted judicially, was not liable to the penalty
provided by § 209 of the Code. In re Keshav
LakshhaN. MelhiU and West, JJ...L L. Bep.
1 Bom. 175, 1876.
COMPENSATION TO FAMILIES FOB
LOSS RESULTING PROM
DEATH CAUSED BY ACTION-
ABLE WB0NO-.
See Negligence.
Lvell v. Ganga Dai... I. L.
Bep. 1 ALL 60.
COMPENSATION FOB LOSS OF COM-
MISSION ON SALES — Dissolution of
Partnership — Commission on Sales — Implied
Covenant.] By an agreement made on the 10th
of January 1857, between K. N. and several
other persons, it was agreed that they should
inn a copartnership for the purpose of erecting
mill for the manufacture of yarn. The capital
D,gltlzed by G00gle
( £86 ) DIGEST OF CASES. ( 286 )
COMPENSATION FOB LOBS OF COM- COMPENSATION FOR LOBS OF COJT.
MISSION ON BALES— amtd. MISSION ON SALES— ccntd.
of the partnership was fixed at Ra. 3,00,00a,
and divided into 100 shares of Rs. 3,000 each.
By the 4th clause of the agreement, it was
provided that, in return for the trouble K. N-
had been at in establishing the factory, " what-
ever cotton had to be purchased for the factory,
K N. was to purchase, and whatever yarn should
be made in the factory, K. N. was to sell, and
for whatever he should sell on account of the
factory, he was duly to receive from the copart-
nership his commission at the rate of 5 percent.
during his life-time ;" and it was also provided
that that though the purchases and sates by the
copartnership should not be made through
K. N., "yet upon tbe whole amount of the
sales the copartnership was duly to pay 5 per
cent, to K. N. during his life-time."
The factory was built, and its machinery
procured and set up by AT. .V., and both finan-
cially and otherwise the factory was wholly
managed by him. Shortly after it commenced
work, it was found that the copartnership had
expended all its capital and was heavily involv-
ed in debt, — incurred by K. N., without the
sanction of his copartners, — and that the factory
was working at a loss ; and at the suit of some
of them, but against the consent of K. N. and
a minority of the copartners, the copartnership
was ordered to be dissolved. K. N. then
claimed to be entitled to compensation for the
loss of the commission he would have earned
upon the sale of the yarn of the factory during
his lifetime.
Held, that this was not the ordinary case of
master and servant, but that of the founder of
a company, in which he was a partner, and of
which he had become tbe manager, broker, and
agent ; that the capital of the company was
fixed by the agreement of the 20th of January
1857 at three lakhs of rupees, and that without
the consent of all the partners that capital
could not be increased ; that there was no
obligation on the copartners (o subscribe more
capital after the original capital had been
exhausted, and that there was no implied
covenant on the part of the copartners to con-
tinue the working of the factory in order that
K- N. should be in a position to earn his com-
mission during his life-time, and that he was,
therefore, not entitled to the compensation
Held, also, that even if the copartners had
covenanted to carry on business during the
life-time of K. N., yet as he had mainly contri-
buted to, and forced, the dissolution of the
company, he was not entitled to compensation.
Distinction between the right to compensation
for loss of fixed wages, and the right to compen-
sation for loss of commission, pointed out.
Lalbhai Vallaehai v. Kavasji Nanahhu.
Westropp, C.J., and Bailey,] 8 Bom. H. O,
Hep., 0. 0. J. 209, 1871.
Held, on appeal to the Privy Council, that the
contract between K. N. and his partners for
remuneration to the former for the management
of the partnership business by a commission on
the sales, during his life-time, did not, in the
absence of any express agreement to that effect,
imply a relinquishment by the copartners of
their right to have tbe partnership dissolved, if
they found that it could only be carried on at a
loss ; and that it did not imply any obligation
to pay K. N. compensation if they did exercise
that right. Kavasji Nanabhat v. Lallubhov
Vuliudhov.-.I. L. Rep. lBom. 468, 1870i
COMPETENT WITNESS— Accused impro-
perly pardoned.
See Evidence. 2. 3. 4.
Judge or Magistrate.
See Disqualifying Interest of
Judge.
Reg. v. Bholanath Sen L L.
Sep. S Cal. 23.
See Evidence. 32.
Empress v. Donellt I. L.
Rep. 9 Col. 40B.
COMPLAINANT— Compensation to— Judge
directing Proceedings on Report of Kar
kun, which Magistrate disbelieved.
See Compensation.
Keshav ...I.L. Rep. 1 Bom. 176.
Contempt of Authority of Public Servant.
See Criminal Procedure Code, Act
X of 1873, § 910.
Muse Adam... I. L. Rep. 2 Bom.
663.
0 OMPO SITION— Insolvency— Assignment by
Debtor in Trust for Creditors.
See Arbitration. 3.
Khkta Mal v. Chvni L.AL...I. Zh
Rep. 2 AIL 17S.
Digitized byGOO^Ie
<
)
DIGEST OF CASES.
COMPOSITION DEED- -Cancelling— Misre-
presentation— Release— Contract Act IX.
of 1872, H 18-19.
See Cancellation of Signature.
Oriental Bank v. Fleming. ..I.
L. Rep. 3 Bom. 242,
COMPOUND INTEREST— Hindu Law-
Bengal Mofussil.
&f Interest. 4.
Deen Dayal ». Kylas Ckundee..
I. L. Rep. 1 Cftl. 92.
COMPOUNDING OFFENCES.
See Dureas,
Moung Shoay Att v. Ko Bvaw.„
L. Rep. 3 I. A. 61 ; I. L.
Rep. 1 Cal. 330.
1.— Cheating .] Cheating is not an
offence which can be legally compounded.
Rao. v. Lakhu Sadashiv...L L. Rep. 1 Bom.
158,ii.
2. Criminal Breach of Trust.'] Nor is
criminal breach of trust Reg. •. Lakhhmak
Gabaji Ibid.
3. Defamation.'^ Nor defamation. Reg.
s. Nutty Ibid.
4. —— Enticing away a Married Woman.']
Nor enticing away a married woman. Rug.
Jetha Ciiatru Ibid.
5. Criminal Procedure Code, Act X. of
1872, §5 215, 296— Dismissal of Warrant Case.
Revival of Prosecution.] A charge of hou»
breaking and theft was " dismissed " by the
Magistrate on the parties coming to an amicable
settlement, and the prosecutrix withdrawing her
complaint
Held, that the "dismissal " was equivalent to
a discharge under § 215 of the Criminal Pro-
cedure Code (Act X. of 1872), and did not bar
the revival of the prosecution ; nor did the com-
position between the parties do so, if that should
otherwise be thought necessary or expedient.
Housebreaking in order to commit theft is not
so offence which, according to § 214 of the
Penal Code, can be legally compounded ; and
the withdrawal from the prosecution in such a
case has not, according to ( 188 of the Criminal
Procedure Code, Act X. of 1872, the effect of
an acquittal. Reg. v. Devaiia. West and N.
Harridan, JJ I. L. Rep. 1 Bom. 04, 187ft.
COMPOUNDING) OFFJUI OBB— cm ii.
8. Voluntarily Causing Grievous Hurt-
Penal Code, j ZtQ— Criminal Procedure Code,
Act X. 0/1872, f 210.] Whenever the words,
" voluntarily," "intentionally," " fraudulently,"
"dishonestly," or others whose definition in-
volves a particular intention, enter along with a
specified act into the description of an offence,
the offence not being one "irrespective of the
intention," is not one which the exception to f
214 of the Penal Code by itself allows to be
compounded without the parties incurring the
penalties prescribed by that and the preceding
section. The offence, to admit of compromise,
must be one in this sense, irrespective of the
intention ; and must be one for which a civil
action may be brought at the option of the
injured person, instead of criminal proceedings.
The offence of voluntarily causing grievous hurt
is therefore one which cannot legally be com-
pounded. Reg ■ v. Jetha Bala (10 Bom. H. C.
Rep. 68) dissented from. Reg. v. Rahinat...
L L. Rep. 1 Bom 147, 1876, F. B.
7. Criminal Breach of Trust — Enticing
away Married Woman.'] The offences of cri-
minal breach of trust, and enticing away a mar-
ried woman with a criminal intent,are not offences
which may be lawfully compounded. Reg. v.
MUTUAVAK...I. L. Rep. 1 Mad. 191, 1876,
F. B.
S. Adultery— Penal Code, § 497— Act
X. of 1872, § iSS.] N. charged T. with having
committed adultery with his wife. T. was con-
victed by the Sessions Court to which he was
committed. T. appealed to the High Court-
After TVs conviction, N. took back his wife to
live with him, and asked the High Court to be
allowed to compound the offence 1 —
Held, that at that stage of the proceedings
ch sanction could not be given, but looking to
the relation between the parties, and the fact that
T. had been in custody for t\ months, the Court
directed the release of T. Ehpeess «. Thoh-
1. Oldfidd, J...I. L. Rep. 3 All. 339,
1879.
COMPROMISE — Criminal Charge against
Agent — Agent's Power to bind Principal
by Compromise.
oVfDnreu.
Moung Shoav Att. *. Ko Byaw.
L. Rep. 3 I. A. 61 ; I. L.
Rep. 1 Ca.1. 830.
Digitized by G00gle
DIGEST OF CASES.
COMPROMISE; -contd.
• Pending Appeal set aside for Fraud — Re-
vival of Right of Appeal.
,S« Revival of Bight of Appeal.
Raneb Khujoqroonissa o. Mussr.
RoUSHUN JEHAN...L. R*p. 3
I. A. 391.
1, Suit for Recovery of Immoveable
Property — Compromise — Breach of Contract of —
Act XIV. of 1859, § 1, CI. IO and 12.] Immove-
able property situated partly in Rohilcund and
partly in Oudh, which had formerly belonged to
the common ancestors of the appellant and the
respondent, was claimed by each on the ground
of heirship. By deed of compromise they agreed
to divide it in certain proportions, and the
agreement was carried out in Rohilcund but not
in Oudh, where the respondent was aod conti-
nued, in possession. At the end of nine years
from the date of the deed of compromise, the
appellant sued for possession of her share of
the property in Oudh.
The Judicial Commissioner of Oudh having
decided that the suit was founded on the contract
contained in the deed of compromise or for a
breach of it, and therefore barred by Act XIV.
of 1S50, % I, CI. 10:— It was held (reversing this
decision), that the claim did not rest on contract
only, but on a title to the land acknowledged
and defined by the contract, which was only pact
ofthe evidence of the appellant to prove her
case, and not all her case; and that, consequently
the suit was not founded on a contract or for a
breach of it, but was a Suit for the recovery of
immoveable property "to which no other p
sion of the Act applies," and, therefore, subject
only to the limitation of 12 years prescribed by
§ I, CI. 12. RaniMkwa KirwAHi. Rani Hui.as
Kuwar.-.L. Rep. 1 1, A. 167 ; IS Bang. L. R.
313, 1874'
2. Hindu Lav — Undivided Family —
Separate Property — Son nhen bound by Compro-
mise effected by his Father— Re-grant by Govern.
xtcnr.] Certain ancestral estate was recorded as
held in four shares of five bis-mas each, held res-
pectively by four brothers, Darjan Singh, Sundar
Singh, Des Raj, and Chattarpat. On the death
of Darjan Singh, Chakarpan, his son, was entered
as the holder of his share, and after the death'
of Sundar Singh, and Chattarpat, Des Raj wa:
at first recorded as the owner of their shares
but shortly afterwards the names of their widows
were entered as the holders of their husbands'
COMPROMISE— contd.
shares. At a later period, the names of Ajudhia
ind Budh Singh, sons of Chakarpan, were sub-
tituted for those of the widows. The estate was
eventually sold for arrears of Government reve-
iue, but a farm was given to Chakarpan, Ajudhia,
Budh Singh, and Des Raj. In 1853 the Govern- .
: having purchased the estate at an auction
sale, proposed to re-grant it to the old zemindars
farmers, and a report regarding the owner,
ship of the estate was called for. The Tahsildar
reported that it appeared from the statement of
Chakarpan and Gandharp Singh, son of Des Raj,
that the widows of Sundar Singh and Chattarpat
bad made a gift of their shares to Ajudhia and
Budh Singh. In 1853, the Collector asked Cha-
karpan, Gandharp Singh, Budh Singh, and
Ajudhia how they proposed to divide the estate
ig themselves if it was granted to them by
Government, and they replied that all four would
hold live Aismaj each- The Government even-
tually agreed to grant the estate on condition
that the arrears of revenue which had accrued
should be discharged. This offer was accepted,
and each of the four persons above named paid
his quota. In 1855, the same persons appeared
before the revenue officer and requested that
each of them might be recorded as the owner
of five biswas, and a village administration paper
wasprepared in which they were entered as in
possession each of five biswas. In 1864, they
agreed to the appointment of an arbitrator and
an umpire to divide these shares. The arbitra-
tion proceedings lasted for two years, when
Gandharp Sing claimed a ten biswas share, and
the arbitrators refused to proceed.
In 1867, Gandharp Singh sued to obtain pos-
session of a two and a half biswas share out of
the five originally held by one of the widows,
then deceased, and for a declaration of his right
to a two and a half biswas share out of the five
biswas originally held by the other widow. This
suit was compromised, the parties agreeing to
divide the estate into four lots, aud a decree
was passed in terms of the compromise. Ujagar
Singh, a son of Gandharp Singh, now sued, in
his father's lifetime, to obtain the same relief as
his father had sought in the above-mentioned
suit in 186;, and a declaration that the arrange-
ment effected by the compromise and decree
were ineffectual : —
Held, that assuming that the family remained
joint until 1867, the plaintiff's father for alt
by Google
DIGEST OF CASES.
COMPROMISE- contd.
intents and purpose* represented the interest 1
the estate which devolved, and would on parti
lion (all to the separate share of himself and his
children, and that the plaintiff was bound by his
acts, In the absence of evidence of such fraud
and collusion as would entitle him to relief on
those grounds. The compromise effected by
Gandharp Singh was a prudent termination of a
litigation which must have resulted in failure,
for, besides the cogent evidence provided by
Gandharp himself by his declarations in 1853 ant
1S55 of bis acquiescence in the entry of tin
names of Ajudhia and Rucih Sing, there was the
difficulty ic his way that the property had beei
granted to Ajudhia and Budh Singh by the
Held also, that if, as there was strong evidence
to show, the property was held in separati
shares, the shares of the great-uncles of the
plaintiff descended as inheritance liable to be
obstructed, and that he could not question his
father's acts. Fitah Singh v. Ujaoar Singh
Pearson and Turner, JJ...L L. Rep. 1 All.
OBI, 1878.
COMPROMISE OF DECREE.
See Limitation. 8.
S row ell ». Billings... I. L. Rep.
1 All. 360.
COMPUTATION OF PERIOD OP LIMI-
TATION— For Appeal under CI. to, Letters
Patent, Allahabad — Deduction of Time requis-
ite for obtaining Copy of Judgment appealed
from, not allowed.
See Letters Patent, Allahabad, CL
10.2.
Fazal Muhammadc. PhulKuar.
I. L. Rep. 3 All. 102.
See Limitation. 90.
JA,
: Lal
■ Das...
I. L. Bep 1 All. 044.
For Appeal — Error in — no Ground for ad-
mitting Time-barred Appeal.
See Time-barred Appeal. 3.
ZaibulnissaBibii. Kijlsuv Bibi.
I. L. Rep. 1 AIL 360.
— For application for Restitution by person
dispossessed— Exclusion of Day on which
Order or Decree appealed against wa
See Limitation. 68.
Guzar *. Bakvb...I. L. Bep. ;
Bom. 078.
COMPUTATION OP PERIOD OF LIMI-
TATION-nmM.
■ Deduction of Time occupied in unsuccess-
ful Enhancement Suit, in Suit for Ar-
rears of Rent at admitted Rate, not
See Limitation. 0.
Brojbndro Coomar Roy v. Ra-
khal Ch under Roy .L L.
Rap. 3 CaL 791.
Deduction of Time occupied in unsuccessful
Suit for Khas Possession, in Suit for Ar-
rears of Rent, not allowed.
Set Limitation. 10.
Harbo Proshad v. Gopaul Dass.
I. L. Rep. S CaL 817.
— — Deduction of Time occupied in prosecuting
Suits in Court without Jurisdiction — Suits
under Act XVIII. of 1S73.
See Limitation. 89.
TtHAL KuARI S. ASLAKII Ra|...
I. L Bep. 1 All. 954.
Deduction of Time occupied by proceedings
in wrong Court.
See Limitation. 41. '
Seth Kahandas e. Dhaiabhai...
I. L. Rep. 8 Bom. 183,
Deduction of Time occupied by former
Suit.
See Limitation. 91.
PuTALI MbHETI 1. TULJEE...I. L.
Rep. S Bom. 333,
For Execution of Decree — Exclusion of
Day on which previous Application for
Execution was made.
See Limitation. 83,
Dhonessur Koobr *. Roygooder.
Sahoy L L. Bep. 8 CaL
336.
- Expiration of Period of Limitation on close
Holiday — Presentation of Plaint on next
Court Day.
See Limitation. 0. 13.
Bishan Chand v. Ahmad Khah...
I. L. Rep. 1 All. 303.
PURKAH C. GhOSE tr. MuTTY L.AI.L
G.Johira L L. Rep. 4
CaL 60.
Digitized byGOO^Ie
DIGEST OF CASES.
( 2M )
COMPUTATION OP PERIOD OP LIMI-
TATION—eontd.
~— For Execution of Decree — Exclusion of
Time occupied in seeking Execution in
Court without Jurisdiction.
See Limitation. 40.
Jivan Singh «. Saknam Singh...
I. L. Rep. 1 AIL 87.
As to Parties Added to Suit.
See Assignment of Mortgage.
Ganpat Panduranq o. Adarji
Dadabhai I, L. Hep. S
Bom. S12-
Ser Ones Probandi. 2.
Abdul d. Masji.„L L. Hep. 1
BOm. £95.
See Co-sharer* of Land. 4.
Bovoohath Bao h. Gkish Chun.
der Rov,..I. L. Bep. 3 CaL
96.
For Petition for Leave to Appeal to Privy
Council — Exclusion of time necessary t(
obtain Copy of Judgment.
5« Limitation. 80.
Jawahir Lal o. Nabaih Das... I
L. Bep. 1 All. 644.
COMPUTATION OP VALUE OP IN-
TEREST CREATED IN IMMOVE-
ABLE PROPERTY— Present Value of In.
terest, and Amount of Consideration stated in
document, irrespective of Future Profits or in-
terest, governs necessity to register.
See Registration. 1. 7. 8. 8. 16. 17.
18.20.
Karan Sinoh v. Ram Lal . L L.
Bep. 3 All. 96.
Satra o. Visram.-.L L. Rep. 8
Bom. 87.
Shankarv. Vishnu...!. L. Bep,
Nai
II
t. 67.
Fazal Muhamad ». Phul Kuar.
L L. Bep. 2 All. 193.
■ To Suit Commenced infirrmi Pauperis but
Continued in the Ordinary Form.
See Limitation. 87.
Chundes Mohun Roy e. Rhubo
Mo him Dabea...I. L. Bep.
3 Cat. 389.
See Petition for Leave to Sub in
Forma Pauperis. 1. 3.
Skinner v. Orde. I, L. Rep. 1
All. 230 ; L. Bep. 8 I. A.
136.
COMPUTATION OP TIME ACCORDING
TO ENGLISH CALENDAR.
See Bengal Act VIII. of 1869, f 39.
Mahomed v Broiokishors...L L.
Bep. 4 Cal. 497.
t. Anant L L. Rep. 3
Bom. 303.
Narsappa b-Guruafpa L L.
Rep. 1 Mad. 378.
Ram D. Kooeho.ThacoorRov...
I. L. Bep. 4 Cal. 81.
Ahmed Baksh v. Gobindi...I. L.
Bep. 3 All. 316.
Contra, see Registration. 19. 31.
Rajpati Singh a. Ram Sukhi
Kuar I. L. Rep. 2 All.
40.
Darshan Sing v. Hanmanta.,,1.
L. Bep. 1 All. 374.
CONCEALMENT OP PBIOB CHARGE.
See Estoppel. 1.
Munnoo Lalld. Lalla Chooneb
Lall.-.L. Bep. 1 1. A, 144.
CONCURRENT JUDGMENTS ONFACT.
Set Practice— Privy Council. 1. 3.
CONDITION IMPOSED ON CONSENT
TO AN ADOPTION, OWING TO
MISTAKE OP PACT.
See Hindu Law— Adoption. IS.
Rangubai -v. Bhagjrthibai I.
L. Bep. 3 Bom. 877.
CONDITION OF RESIDENCE, DEVISE
ON.
See Will. 10.
Tagorb tTagore ..L. Bep.ll.
A. 367.
CONDITION IN RESTRAINT OP PAR-
TITION OB ENJOYMENT-Devise
with.
See Hindu Law— Will. 1.
MokoondoLalli'.Gonesh Chun-.
dkr...L L. Rep. 1 OaL 104.
by Google
DIGEST OF CASES,
CONDITIONAL ADOPTION.
See Hindu Law— Adoption. 0. IB.
Radhabai s. Ganesh.I. L.Rep.
S Bom. 7.
Rahasawmi 0. Vencatarahatvan.
L. Rep. 6I.A. 186.
CONDITIONAL DECREE— In Pre-emption
Suit.
See Pre-emption. 3. 4. S.
Shaikh Ewaz e- Mokuna Bin...
L L. Hop. 1 AIL 132.
HtHOAN Khan v-GangaParshad.
Ibid. 263.
Mahabir Parshad j.Debi Dial...
Ibid. 291.
In Redemption Suit.
See Mortgage. 35, 86.
Raja Barda Kant v. Bhagwan...
I. L. Sop. 1 AIL 344.
Sahib Zadah v- Par.ueshar Das.
Ibid. 624.
CONDITIONAL DEVISE.
See WilL 10.
Tagore & Tagore. ..L. Rep. 1
LA 387.
CONDITIONAL LEGISLATION.
See Legislative Powers of the Go.
vernor- General in Council 3.
Empress v. Burrah...I. L. Sep.
4 Cal. 172 ; L. Bop. S I. A.
178 ; L. Hep. 3 App. Ca.
889.
CONDITIONAL BALE— Foreclosure.
Str Hindu Law— Ancestral Pro-
perty.
Shah Narain Singh t>. Rughoo-
BEKDYAL..X L.Rep. 3 Cal.
SOS,
Mortgage by — Redemption.
See Mortgage. IS.
Thumbasawiiv Mudelly v. Ma-
homed HOSSAIN ROWTHBN ...
L. Rep. 3 L A. S41 ; L L.
Rep. 1 Mad. 1.
- Attestation by Magistrate when unn
sary.
See Evidence. 16.
And see Criminal Procedure Code,
Act X. of 1872, f 846.
Chuhmun Shah ..L L. Rep. 8
0*1.766.
- Of Co-Accused, Admission of, to Exculpate
Co- Accused.
See Evidence. B.
Imfx. d. Pitamber I. L. Rep.
2 Bom. 01.
- Of Co-Accused Insufficient of itself to
support Conviction.
See Evidence. 0. 9a. 10. 11. 11a.
- Of Co-Accused no Corroboration of Ac-
See Evidence. 11a.
Inducement by Person in Authority.
See Evidence. 16.
Empress v. Rama. ..I, L. Rep. 8
Bom. 13.
Informally Recorded, under § IJ2 of Cri-
minal Procedure Code — Defect remedi-
able by Evidence.
See Criminal Procedure Code, Act
X. of 1873, 1 123.8.
Empress v. Rakanjiva L L.
Rep. 3 Mad. 6.
. Contra, see Evidence. 12. 14.
Reg. o. Shiva. ..L L. Rop. 1
Bom. 218.
Empress v. Mannoo Tauoolee...
LL.Rep.4CaL696.
Made to Deputy Commissioner of Police.
Sec Evidence. 13.
Reg. v. Hur.eibole,..L L. Rep.
1 Cal. 807.
CONFIRMATION OF P086E8BT0N-
Suit for — and Setting Aside Deeds.
See Setting Aside Deeds.
Tacoordeen Tewarry v. Nawab
Svbo Ali... L. Rep. 1 I. A.
182.
CONFIRMATION OF SALE— Purchaser's
Title relates to.
See Sale in Execution of Decree. 8.
BKYRUB Ch UNDER V. SOUDAMINI.
L L. Rep. 3 CaL 141.
Under Decree — After Reversal of Decree. .
See Salein Execution of Decree. 31.
Rasappa v. Dundava.L L.Rep.
3 Bom. 640.
D.gmzed by G00gle
( aw )
DIGEST OF CASES.
CONFISCATION -On Conviction under
§ 49. Act XXI. of 1856, no Part of the
See Criminal Procedure Code, Act
X. of 1878, f 222.
Empress v- Baidanath Das...
L. Bop. 3 Cat 866.
CONFISCATION FOE REBELLION.
See Act IX. of 16S0, } 20.
Mohvmhud Bahaooor Khan v.
The Collector of Bareillv.
L.Bep. 1. L A, 167.
CONFISCATION IN OUDH— EFFECT
OF.
I. Lard Canning's Proclamation of 1858
—Effect of Re-Grant 0/ Confiscated Estate.']
The effect of Lord Canning's Proclamation of
the 15th of March 1858, was to divest all the
landed property from the proprietors in Oudh,
and to transfer it and to vest it in the British
Government. Consequently all who sim
date claim title to such property must
through the Government.
The proclamations of Sir James Outran, dated
respectively the 21nd of March 1858 and the
3Jth of March 1858, by the former of which 1
was " notified for those who have fled from tin
city, having; locked up their houses, that if they
would not return within 10 days and re-ot
their houses, the property within their h.
will be confiscated," and the latter addiessi
the landholders, and which tan thus :— '
Major.General, Chief Commissioner of Oudh,
in sending you this proclamation, wishes
inform you that if you at once come in, ready
to obey his orders, provided you have taken
no part in the atrocities committed on helpless
Europeans, none of your lands will be confiscat.
ed, and your claims to lands held by you prior to
confiscation will be heard," cannot be taken as
having the effect of changing the effect of Lord
Canning's proclamation, or having any operation
in as far as they may be inconsistent with it.
Where a re-grant is made to a former owner
the new title will depend entirely on the terms
of the re-grant, and if such re-grant is made for
life only, no suit can be maintained to rectify an
alleged mistake, and for a declaration of anabso-
hrte title according to the tenor of the svnnud
by which the property was held under the old
dynasty and prior to the confiscation. Nawab
Mauca Jam an Samba*. Deputy Commissioner
ofUckjtow L. Bop. OX. A 63, 1879.
CONFISCATION IN OUDH—;
OF— contd.
2. Lord Cannings Proclamation —
Houses in Oudh— Abandonment of Confiscation
— Limitation.] In a suit £0 recover from the
defendant, who was in possession, certain houses
in Lucknow and a moujiah in Oudh .—
Meld, that the effect of Lord Canning's Procla-
mation of the 15th March 1858, was to confiscate
all the proprietary rights in the soil of the pro-
of Oudh, and to put an end to all previous
titles. The plaintiff, therefore, in order to re-
sr the mouzah, must show a title acquired by
e grant or proceeding of Government within
ve years prior to the commencement of the
. As to the houses, their Lordships consi-
dered it unnecessary to determine what was the
effect of Lord Canning's Proclamation, or what
was the effect of Sir James Outram's Proclama-
tion of the i»nd of March 1858 (set out in the
preceding case), because with reference to all the
houses in Lucknow which were the subject of the
present suit it was the intention of the Govern-
ment to abandon altogether the confiscation, and
leave the former owners to their rights in the
same way as if there had never been any confis-
cation -.—Held, therefore, on a plea of limitation
by the defendant, alleging that she was in pos-
of the houses before the Proclamation,
that the issues must be tried and determined in
if there bad never been any
confiscation at all.
Issues settled accordingly, and case remanded.
Prince Mirza J ehanKudr Bahadur ». Nawab
Assur Bahu Bboum..L. Bop. 8 L A. 78,
1878; X. L. Bop. 4 Cal. 727.
CONFLICT OF OPINION BETWEEN
INDIVIDUAL JUDGES NO
GROUND FOB BEFEBENCE TO
FULL BENCH.
See Reference to Full Bench.
Raj Koomar Sinoh e. Sahebzada
ROV...L L. Bop. 8 OaL 30.
CONNIVANCE.
See Divorce. 2,
Williams v. Williams L L,
Bop. 3 CftL 688.
CONSENT DECREE— Suit against Heirs of
Deceased Mahomedan In Possession of
his Estate — Absentee Heirs— Sale in
Digitized byGOO^Ie
DIGEST OF CASES.
CONSENT DEGREE— aMA*.
See Kahomedan Law. 1.
ASSAHATHEM NeSSA u. ROY LuTCH-
MEPUT...I. L. Rep. 4 Cal.
142.
CONSENT OP OWNKB. — Property removed
with— but with Criminal Intent— Theft
See Abetment. 3.
Empress tr. Troyuikho Nath .X
L. Bep. 4 CaL 866.
CONSENT OP FBISONER.
See Disqualifying Inter eat of
Judge.
Reg. v. Bholanath Sen I. L.
Bep. 9 CaL S3.
CONSEQUENTIAL BELIEF.
See the cases under Declaratory
Declaration of Title to influence Collector.
See Declaratory Decree. 10.
Chakdtj b- Chathu Naubiah ..T.
L. Bep. I Mart. 381.
Suit for Declaratory Decree where no— can
be given, not maintainable.
See Declaratory Decree. 3. 4. 11.
Strihathoo Natcbiar «. Doha-
sinoa Tbvkh...Ij. Bep. 1 1.
A. 168; 15 lleug. L.
Bep. S3.
SlNI Thiruvengadathienoar V,
S. P. Chinnathamb(a...L L.
Bep. 1 Had. 60.
SHEoSistiH Rait.Musst. Dakho.
L. Bep. D I A. 87; L L
Bep. 1 AIL 688.
Suit by Plaintiff in Receipt of Rents and
Profits, for Possession under Stdl Title,
by setting aside False Magolei bromuttur
Title alleged by Defendants.
See Declaratory Decree. 1.
Rajah Nilmonek ». Rally
Churn. ..L. Bep. 2L A. 83.
■— — Suit by Hindu Reversioner. ,
See Declaratory Decree. 8. |
Akbab Khan e. Sheoratan . I.
L. Bep. I AIL 37a I
CONSEftUENTIAL BELIEF- -tontd.
Suit to set aside a Pottah granted by Plain.
tiff's Lessor to Third Person at Invariable
Rent — Pottah not yet set up against
Plaintiff.
See Declaratory Decree. 5.
Ram Needhee t. Rajah Rughoo
Nabain...L.L. Bep. 1 CaL
4S6.
CONSIDEBATIOK — Absence of — Nudum
Pactum.
Set Inam Chitti.
Rauchandra e. Kalu LL.
Bep. 3 Bom. 363.
Absence of— Mortgage by Acceptor of
Hundis still running, on Drawer's Bank-
ruptcy, to secure Payment of Hundit.
See Contract. 6.
Manna Lalv- Bank of Bengal.
L L. Bep. 1 All. 309.
Agreement by Undivided Hindu Brothers,
to recognize Undivided Brother's Rights
in Undivided Property— Good.
See Contract. 3.
Lakhhi Chand o-Tori Lal...I. L.
Bep. 1 AIL 618.
Amount of— slated in Instrument— Mea-
sures— Necessity for Registration.
See the Index heading Computation
of Value of Interest created
in Immoveable Property.
Deed — between Hindus does not import.
See Registration. 38.
Raju v. Kkishnarav ..I. L.
Bep. 8 Bom. 873.
Evidence of — Suit on Unstamped Promis-
sory Note.
See Evidence. 4.
Golap Chand v. Thakurani
Mohokoow L lb Bep. 3
CaL 314.
Evidence to Vary — or show that none exist.
ed.
See Evidence. 30.
Hukum Ckuhd v. HIRALAL......L
L. Bep. 8 Bom. ISO.
- Immoral— Past Cohabitation is not.
See Contract. 4.
Man Kuar v. Jasodha Kuar...I.
L. Bep. 1 All. 476.
Diaxized by Google
DIGEST OF CASES.
CONSIDERATION^ tontd.
— Inadequacy of.
See the cases under Unconscionable
Bargain.
See Inadequacy of Consideration.
Administrator General op Ben-
gal v. Jucgeswar Rov. ..I.
L. Bop. 8 Gal 18S ; 1 Oal.
Hop. 107.
See Purchase by a Trustee.
DfJONENDEB Ch UNDER V. MuTTY
Lall ... L. Rep. 9 L A.
— Love and Affection— Registration,
See Contract. 8.
Lakhmi Chand v. Tori Lal ..L
L. Bop. 1 All. 618.
— Past Cohabitation.
See Contract. 4.
Man Kuarv. Jasodka Kuar..L
L. Bop. 1 All. 478.
— Surety Bond — Absence of Consideration.
See Contract. 14.
Nanak Ram o. Mbhih Lal...L
L. Bep. 1 ALL 487.
— Time-barred Debt— Good.
See Limitation. 43. 48. 44.
Ragoji v. Abdul.. .L L. Bep. 1
Bom. 390.
Kally Prosonho v. Hbbra Lal...
I. L. Bop. 3 Csl. 468.
Muncol Prashad *. Shaha Kan-
TO...T. L. Bep. 4 CaL 708.
See Administration. J}.
DhANJIBHAI *. NAVAZBAI...I. L.
Bep. 3 Bom. 70.
See Hindu Lav— Alienation by
Widow. 8.
Bhala o- Parbhu...I. L. Bep. 3
Bom. 67) 71.
See Time-barred Debt.
Administrator General v. Haw.
KINS..I. L. Bep. 1 Had. 267.
— Time -barred Decree.
See Kistbandi.
Hebra Lall v. Dhunput Singh..
I. L. Bep. 4 CaL BOO.
— Unlawful.
See Contract. 18.
Fatrh Singh v Sanwal...L L.
Bep. 1 AIL 751.
COVBTDEBATIOK-«»f^.
Written Contract— Parol Evidence to show
See Evidence. 90.
HtlKUMCHUND V. HlHALAL...L L.
Bop. 3 Bom. 169.
CONSTITUTION OF JUBY.
See High Court Criminal Procedure
Code, Act X of 1876, H 83
to 87.
Reg. v. Lall- mi ai... I. L. Bep. 1
Bom. 339.
Reg. v. ViTHALDAS...Ibid. 463.
CONSTITUTION OF THE SHALL
CAUSES COUBT AT CALCUTTA
See Small Cause Court— Presi-
dency Town. 6.
Ohritotall Dev...I. L. Bep. 1
CaL 78.
CONSTRUCTION OF ACT.
See Construction of Statute.
Relating to Procedure.
See Civil Procedure Code, Act X of
1877, § 842.
Rattansi Kalianji...L L. Bep.
3 Bom. 148.
CONSTRUCTION OF DECBEB.
See Decree.
Shauman Singh v. Ganga Ram...
L L. Bep. 3 AIL S43.
Harsukh v. MEGRAj.-.Ibid. 346.
See Account. L
Hirji Jina o. NaranMulji...L L.
Bep. 1 Bom. 1.
— — Notes of Judgment in Deputy Registrar's
Book.'] A note of a judgment of the Appellate
Court taken by a Deputy Registrar, cannot be
looked at for the purpose of explaining or aiding
" e construction of the decree of the Appel-
late Court ; nor can notes taken from the book
of the Judge who pronounced the judgment of
the Appellate Court be looked at for that pur-
pose. The decree must be construed as it stands.
Where, therefore, a decree was, on the face of
ordinary decree, in a partnership suit for
the taking of the accounts between the partners
the usual way, the Court refused to allow the
respondent to show, by reference to such notes,
that what the decree meant was, that he was to
be credited, and his partners debited, with cer
payments in tela, and not with their respec-
by Google
( 9W ) DIGEST OF CASES.
CONSTRUCTION OF DECREE- -centd. CONSTRUCTION OF STATUTE - tantd.
live shares only. Suhar Akued*. Haji Ismail
Haji Habib. Westropp, C- J.,-and Green, J. ..I.
L. Bep. 1 Bom. 158, 1876.
CONSTRUCTION OF INTERPRETA-
TION CLAUSES IN ACTS OF THE
LEGISLATURE.
See Construction of Statute. 7.
Guk Dayal...L L. Rep. 2 All.
CONSTRUCTION OF FOTTAH — Grant
during Continuance oi Lessor's Interest.
See Grant during Continuance of
Lenox's Interest.
Baboo Lekheaj Roy «, Kvnhva
SiNCH...L.Rep.4L A. 223;
I. L. Rep. 8 Cal. 210.
CONSTRUCTION OF STATUTE.
Apparently Opposed.
See Contraction of Statute. 2.
— Illustrations.
See Construction of Statute. 7.
Imposing Tax.
Set Madras Act HI. of 1871.
Leman v. Damodarava I. L.
Rep. 1 Had. 158.
In Pari Materia.
See Jurisdiction. 18.
Collector op Sea Customs v.
Punnj AE...I. L. Rep. 1 Had.
89.
— — Interpretation Clauses.
See Construction of Statute. 8.
-^— Of Limitation.
See Construction of Statute. 8.
— Limiting Right to Resort to Courts of Jus-
tice.
See Pensions Act »*ttt, of 1861.
8.4.
Ravji e. Dadaji...I. L. Rep, 1
Bom. 523.
GURUSHIDGAVDAT.RUDRAC.AVDA...
L L. Rep. 1 Bom. 531.
Penal Statute.
See Construction of Statute. 4.
— Relating to Procedure.
See Civil Procedure Code, Act I. of
1877, 5 842.
Rattans!,,. I. L. Rep. 2 Bom.
148.
— Words ' May,' 'Must.'
See Construction of Statute. 1.
I. Words "May," "Mutt."'] In some
cases the word "must" or the word "shall" may
be substituted for the word " may" ; but that can
only be done for the purpose of giving effect to
the intention of the Legislature ; but in the ab-
sence of proof of such intention, the word" may"
must be taken to be used in its natural, and
therefore in a permissive and not in an obliga-
tory sense. Delhi and London Bamk •. Or-
chard. L. Rep. 4 L A. 127, 1877 ; L L.
Rep. 3 Cal. 47.
2. Statutes apparentiyopp-ised.~] "When
e apparently opposed, it is
a cardinal principle in the interpretation of a
statute that the one must, if possible, be read
as a qualification of the other, so that some
effect furthering the intention of the Legislature
may be given to each." Per West, J., in Shan-
kar Rahchandra v. Vishnu Anant...L L.
Rep. 1 Bom. 67, 09.
8. ■ Acts of Limitation — Construction
>/.] Acts of Limitation being restrictive of the
ordinary right to take legal proceedings, must,
where their language is ambiguous, be construed
strictly, i.e., in favour of the right to proceed.
Per Westropp, C.J., in Umiash ANKAR Lakhmiram
v- Chotalal Vajiram I. L. Rep. 1 Bom.
10-22, 1875.
S. C. under Limitation. 69.
4. Penal Statute — Construction.'] A
penal statute, when its language is ambiguous,
must be construed in the manner most favour.
able to the liberties of the subject, and this is more
especially so when the penal enactment is of an
exceptional character. Rbq.*. Bhista Madak-
na L L. Rep. 1 Bom. 308, 1876, F. B.
S. C. under Act XXVX of 1860.
6. — — Repeal — Right acquired under Re-
pealed Act.] The repeal of a statute or other
legislative enactment cannot, without express
words, or clear implication to that effect, in the
repealing Act, take away a right acquired under
the repealed statute or other enactment while it
by Google
{ 80S ) DIGEST OF CASES. ( 306 )
CONSTRUCTION OF STATUTE— r<™W. CONSTRUCTION OF SANAD-mbM.
was in force. Per Westropp, V.,]., in Sitarah
Vasiidf.v v. Khanderav Balkriskna I. Xi.
Bop. 1 Bom. S86-291.
6. Interpretation Clauses — Construction
of."] " Although I do not attach so much- impor-
tance and force to interpretation clauses in Acts
of the Legislature as is sometimes claimed for them
— holding; that they should not be read merely
by themselves, but that they may be controlled
and limited by other express provisions of the
same law, and as a consequence, that if incon-
sistent with and repugnant to such other pro-
visions they may be disregarded,— yet they are
frequently very useful." Per Stuart, C.J., in In
tht matter of the Petition s/Gur Dayal .X L.
Rep. 3 AIL. 305, SOB.
7- Illustrations Annexed to Acts of the
Legislature—Force of] The illustrations an-
nexed to the Acts of the Legislature, although
attached to, do not in legal strictness form part
of the Acts, and are not absolutely binding on the
Courts. They merely go to show the intention
of the framert of the Acts, and in that and other
respects they may be useful, provided they are
correct. Per Stuart, C.J., in Nanak Ram e.
Mehin Lal I. L. Rep. 1 AIL 487, 483,
1S77.
S. C under Contract. 14.
CONSTRUCTION OF BANAD.
See Grant of Jaghir by th*Haat
India Company.
Gvlabdas o. Collector of
SuRAT...L.Rep. 61. A. 84;
L L. Rep. S Bom. 180.
See Grant of Taluk.
Bhooeun Mohini «. Harrish
Chundrr...L Ii. Rep. 4 Cal.
38 ; L. Rep. 6 L A. 138.
1. Construction of — Ownership in Soil.]
The plaintiff claimed, as proprietor of one
moiety of the village of Nanej, to recover from
the Mamlatdara moiety of ihc land rents wrong.
fully intercepted by him in the year 1870-71,
and based his claim on a sanad granted by the
Raja of Satara in 1833-34, which purported to
grant to the plaintiff's ancestor in Inam the
village of Nanej, "including the waters, the
trees, the stones (including quarries), the mines,
and the bidden treasures therein, but excluding
the Hakdars and Inamdars."
Held, that the determination of the nature of
the claim and title of the plaintiff must rest on
the terms of the grant, irrespectively of the use
which the plaintiff or his ancestors may have
made of the land. Though, as said in Krishna
v. Rangrow (4 Bom. H. C. Rep. A. C. J. 7),
Sanadi grants in /nam, Saranjam, &c., are,
generally speaking, more properly described
as alienations of the royal share in the produce
of the land, t-e., of land revenue, than grants
of land, although in popular parlance so called,
yet such is not invariably the case.
If words are employed in the grant which ex-
pressly or by necessary Implication indicate that
Government intends, that so far as it may have
any ownership in the soil, that ownership shall
pass to the grantee, neither Government, nor
any person subsequently to the date of the grant
deriving under Government, can be permitted to
say that the ownership did not pass.
And therefore, under tbe terms of the above
grant, tbe proprietary right in the soil of the
village passed to the plaintiff, and not merely
the land revenue, the reservation of the rights
of Hakdars and Inamdars not preventing the
property in the soil, so far as it could be regard-
ed as having been vested in the Government,
from passing to the Inamdar. Ravji N. Manu-
LlKf. Dadaji Bapuji Desai. WtStropp, C.J.,
and Lor pent, J...L L. Rep 1 Bom. 023, 1878.
See this case also under Pensions' Act
XXIII. of 1871. 3.
8. Grant in Inam— Kulbab Kulkann,
excepting Rights of Hakdars.] A sanad of the
Satara Government purported to grant a certain
quantity " out of the Malta waste land" to A. B.
" from generation to generation without inter-
ruption," and proceeded : — " The above land is
granted Kulbab Kulkanv (with all cesses and
taxes), together with the present and the future
cesses, exclusive of (i.e., excepting) the (rights
of) previous hakdars," Westropp, C.J., said (p.
341): — " The description in the sanad of the
premises demised as ' ihaisa waste land* is to a
certain extentagainst the supposition that there
was then any mints* right in existence, but this
is counterbalanced by the statement in the same
sanad that there were then cesses payable out of
the lands. This sanad is more similar in form
to the sanad i n Vaman Janardhan Joski v. Tht
Collector of Thana (6 Bora. H. C- Rep., A. C J.,
191) than to the sanad in Ravji Narayan
by Google
DIGEST OF CASES.
CONSTRUCTION OF SANAD-nwW.
Mandlik v Dadaji Bapuji Dtsai (I. L, Rep.
Bom. 503) : but in either case, rights existing
in private individuals at the date of the
would not pass, under the grant by &>■
to the inamdar created there." Babaji v. Na<
kayan X. L. Rep. 3 Bom. 340, 1879.
S. C. under Hints. 1.
And Practice-Civil. 10.
CONSTRUCTION OF WILL OF HINDU
IN ENQLISH FORK.
Set Executor, Estate of. S,
SALUBHAlv. MaNCUVARBA1.,.I. 1i.
Rep. 2 Bom. 33S.
CONSTRUCTIVE POSSESSION
THROUGH TWTERTH'FPT ATE
HOLDERS.
5tt Criminal Procedure Code, Act
X of 1873, * 630. 1.
Empress o. Thauoor Dyal I,
I,. Rep. SCal. 330.
CONSTRUCTIVE FRAUD— Mortgagors
and Mortgagees— Priority.] M, mortgaged by
a registered mortgage deed certain property to
bis brothers, the appellants, to secure repay-
ment of a loan. Subsequently M. mortgaged
the same property to P. I., one of M.'s brothers,
attested this mortgage deed. M. subsequently
borrowed money from B. to pay off P.'s mort-
gage ; and S., another brother of M.t attested the
mortgage deed in favour of B. B. obtained a
decree on his mortgage, and at a sale in exe-
cution thereof the respondents purchased the
mortgaged property. The brothers of M. caused
their mortgage to be notified at the sale. In
a suit brought by the brothers of IS. to enforce
their mortgage lien against the respondents; —
Held, that the respondents as auction pur-
chasers were entitled to put forward the same
pleas as might have been urged by the mortga-
gees had the question of priority arisen before
the sale. Though they purchased with notice
of the appellants' claim, they knew also that the
claim was contested, and the notification of the
claim at the sale could not restore tc
appellants priority if they had already lost
Held also, that it is a rule of equity that
where a man by his conduct or language wilfully
causes another to conceive an erroneous im-
pression, and to act on the impression he has
so formed and to alter his position, he cannot
afterwards be allowed to claim any benefit for
CONSTRUCTIVE FRAUD- tontd.
himself by asserting that the facts were contrary
to the impression he had produced ; and a
man must be presumed to intend the natural
consequences of his conduct or language. If a
man stands by and sees another sell property
which belongs to him, he is bound to proclaim
his title. If he fails to do so, and a stranger
is induced by his silence to believe be has no
title, and, under that impression, expends his
money on the purchase of his property, equity
holds the man so standing by, if he fails to
explain his silence, guilty of constructive fraud,
and postpones his title to that of the purchaser.
It is, however, of the essence of constructive
fraud, that the person sought to be charged
therewith should be proved to have concurred
or co-operated in some deceit, or to have been
guilty of gross negligence. It is not enough to
show merely that a man, knowing that person*
are dealing with his property out of his presence,
keeps silence. But if a person who proposes to
make an advance on a property informs a mortga-
gee of his intention in such amannerasto show
that he intended to be guided by what he might
hear from the mortgagee, and the mortgagee
ins silent, still moic if a direct inquiry is made
of the mortgagee and he remains silent, then in
either of these cases the mortgagee will be held
guilty of constructive fraud. Although mere
tation of the execution of a mortgage-deed
by a prior mortgagee is not sufficient to create
stoppel, because it does not necessarily
follow that a witness is aware of the contents of
the deed of which he attests the execution, yet
where that knowledge is brought home to him,
and there are circumstances to show that he
acted dishonestly and disingenuously to the
subsequent mortgagee, and that the subsequent
ortgagee was deceived in consequence, the
ior mortgagee will be deprived of his priority.
Applying these principles, those brothers of
'. who simply remained silent, though cogni-
nt that M. was dealing with the mortgaged
property, were not debarred from insisting on
their claim. Nor was the case stronger against
/., who attested the deed to P. The sale was
not made under that deed, nor was the mortgage
1 favour of P. kept alive and assigned to the
ubsequent mortgagees. But, under the circum-
tances, Held as regards S., that he had by his
ilence lost his right of priority. Salauamat
Ali e. Budh Singh. Turner a.n& SpankU, )]...
I. L. Rep. 1 All. 303, 1876.
Digitized by G00gle
DIGEST OF CASES.
CONSTRUCTIVE NOTICE- Notice to So-
licitor.
See Limitation. 38, a.
Gkeender Ch under Ghose o.
Mackintosh...!. L. Rep. 4
Cal. 897.
CONSTRUCTIVE TRUST.
See Limitation. 23.
Durqa Prasad v. Asa Ram... I. L.
Rep. S Alt 361.
CONSTRUCTIVE TRUSTEE.
See Insolvency. 3.
Bhavan it. KiVAsji...!. L. Rep.
9 Bom. MS.
CONSUL— British— at Zanzibar— Jurisdiction
of.
See Zanzibar.
Waoji Kokji v. Tharia Topan...
L L. Rep. 3 Bom. 58.
CONTEMPORANEOUS ORAL AGREE-
MENT CONTRADICTING WRIT-
TEN CONTRACT— Evidence of.
See Evidence. 19. 80.
Bakafa o. Sunderdas...I. L.
Rep. 1 Bom. 383.
HUKUMCHUND V. HlRALAL ..1 L.
Rep. 3 Bom. 109.
See Mortgage. 33.
MORAN V. MiTTU BlBEE...I. L.
Rep. 2 Cal. S8.
CONTEMPORANEOUS ORAL AGREE-
SCENT TO RESCIND REGISTER-
ED CONTBACT.
Set Incomplete Contract.
Umedmal v. Dada...I. L. Rep. 2
Bom. 547.
CONTEMPT OF COURT- -Intentional False
Evidence is— and therefore not triable by
Court before which given — different In-
cumbent of Office may try.
See False Ev idence.
Reg. v. Gaji.-L L. Bep. 1 Bom.
811.
See Criminal Procedure Code, Act
X. of 1872, ( 471.1.
Reo. v. Gur Baksh...!. L. Bep.
1 All. 183.
See The Cases under Criminal Pro-
cedure Code, Act X. of 1872,
f 478. 1. 3. 3.
CONTEMPT OF COURT— conld.
Continuing Nuisance after Injunction to dis.
See Criminal Procedure Code, Act
X. of 1872, §478. 1.
Reo. v. Parsafpa...I. L. Rep. 1
Bom. 339.
- — - Imprisonment for — Jurisdiction of High
Court— Act X- of 1877, (f 341, 342.
See Imprisonment for Contempt of
Court.
Martin b. Lawrence. I. L. Rep.
40*1665.
CONTINUATION IN FORMA PAU-
PERIS OF SUIT COMMENCED
IN ORDINARY FORM.
See Suit in forma Pauperis.
Nirmul Chandra v. Davai. NatH.
I. L. Rep. 2 CaL 130.
CONTINUATION IN ORDINARY
FORM OF SUIT COMMENCED IN
FORMA PAUPERIS.
See Petition for Leave to sue in
forma Pauperis.
Skinner 0. Orde L L. Rep. 1
All. 230 ; L. Rep. 6 L A.
126.
See Limitation. 87.
Chundek MohuN v. Bhubon
MoHiNt.,.1. L. Rep. 2 Cal.
389.
CONTINUATION OF NUISANCE
AFTER INJUNCTION TO DIS-
CONTINUE.
See Criminal Procedure Code, Act
X. of 187S, { 473. 1.
Reg. d. Parsappa...L L. Rep. 1
Bom. 339.
CONTRACT — Affecting Land — Transfer of
the Land.
See Covenant running with the
Land.
Abadi Begum ■«. Asa Ram.X L.
Rep. 2 AIL 162.
- of Affreightment.
See Contract. 16.
- Agency— Commission during Agent's Life-
time—Sale of Subject of Agency— Com-
DiQxized by Google
DIGEST OF CASES.
See Compensation for Lom of Com-
Cowasji o. Lallbkoy 8Bom.
H. C. Bep. O. C. J. 209 ;
I. L. Hep. 1 Bom. 468 ; L.
Hep. 3 L A. 200.
— Agreement to Alter the Course of Devolu-
tion of Property prescribed by Law.
ire Hindu Law— Relinquishment
of Share by Bon.
BaLKRISHNA V. SAVITR1BAI...I. L.
Bop. 8 Bom. 04.
— Agreement Not to Appeal.
See Contract. 8.
An ant Das v. Ashburnbr I.
Zi. Bep. 1 All. 367.
— Alteration of.
See Alteration of Contract.
Edb v. Kanto Nath Shaw... I.
L. Bep. 3 Cal. 380.
— Avoidance of — Duress.
&r Duress.
Mounc Shoav Att b- Ko Byaw.
L. Bep. 3 I. A, 61 ; I. L.
Bep 1 Cal. 380.
— Breach of — Jurisdiction — Whole Cause of
Action.
See Jurisdiction. 14.
Muhammad Abdul Kadar o. E.
1. Rv. Co.,,1. L. Bep. 1 Had.
878.
— Breach of — to Purchase Goods — Collateral
Contract by Vendor — Measure of Da-
See Damages. 3.
Cohen «. Cassih Nana. ..I. L.
Bep. 1 Cal. 364.
— Capacity of Married Women to.
See Hindu Law— Capacity of Har-
ried Woman to contract.
Natiiubiiai b. Javer...L L. Bep.
1 Bom. 131.
See Harried Woman's Property
Act IH. of 1871.
Alumuhdv «. Braham—L L.
Bep. 4 Cal. 140.
See Harried Woman's Separate
Property. 3. 8.
Hurst v. Mussoorie Bank. ..I.
L. Bep. 1 All. 763.
Brresford n. Hurst.. .Ibid. 773.
- Collateral.
See Damages. 3.
Cohen e. Cassim Nana. ..I. L.
Bop. 1 CaL 364.
- Consideration for.
See the Index heading Consideration.
See Inadequacy of Consideration.
- without Consideration— Void Contract.
See Contract. 6.
— to Create an Interest in Immoveable Pro.
perty.
See Begistration. 13.
Valaji o. Thomas. ..I. L. Sep. 1
Bom. 190.
— Entered into in England to be performed
in India..
See Contract. 17.
Oakes & Co. v. Jackson...!. L.
Bep. 1 Had. 184.
— Entered into in Foreign Country.
See Jurisdiction. 7.
MaTHAPPA V. CHELLAPPA...L L.
Bep. 1 Had. 1S6.
— Entire Cargo, Contract to purchase,
See Contract, 1.
— Executed and Stamped in England, subse-
quently executed in India — Stamp.
See Contract. 17,
— not to Execute a Decree.
See Estoppel. 6.
Param Singh v. Laljt Mal...L L.
Bep. 1 All. 403.
— to Give in Marriage — Specific Performance
of.
See Injunction. 1.
Gunput Naraih Sing. T, L.
Bep. 1 Cal. 74.
— Hindu Law of — Applicability of, to Bengal
Mofussil.
See Interest 4.
Dbbn Doyal v. Kvlas Ch under.. .
L L. Bep. 1 Cal 93.
— Implied.
See Harried Woman's Separate
Property. 3.
Bekbspord o. Hurst.. -L L. Bep,
1 All. 779.
DigitlzSdbvGoogle
( m >
DIGEST OF CASES.
CONTRACT— emtd.
— — Incomplete.
Sk Incomplete Contract.
Uhedmal v. Dava...I. L. Bep. 3
Bom. 647.
— — Interest, Contract to pay at High Rate on
Default of Payment of Promissory Note
at Due Date.
See Contract. IS.
■ Introduction of New Term into.
See Contract. 3.
Mistake.
See Contract. 6, 11,
See Mistake.
1 ■ with Pleader tor Reward proportioned
Amount decreed.
Jew Inam Chitti.
Ramchundra v. Kali;... I, L.
Bep. 3 Bom. 863.
— - for Purchase of Immoveable Property
contemplating Future Conveyance.
See Registration. 13.
Valaji v. Thomas. ..I. L. Bep. 1
Bom. 190.
— to Purchase Future Interest in Immoveable
See Contract. 2.
■ to Refer to Arbitration — Right to rescind
—Specific Performance.
Set Contract 8.
Registration of.
See Registration.
in Restraint of Trade.
See Contract. 17. 17a.
— Right to rescind.
See Contract. 8.
Set Bale of Goods.
Shoshi Mohunt. Nobo Krishto.
I. L. Rep. 4 Cal. 801.
— for Sale of Cargo or Entire Cargo to arrive.
See Contract. 1.
— for Sale of Goods — Ownership in Goods
sold when transferred.
Ste Sale of Goods.
Shoshi Mohun a. Nobo Krishto.
X. L. Bap. 4 Cal.*801.
CONTRACT-
■Mid.
— for Sale of Goods— Right to rescind— for
Breach of Warranty of Quality.
See Bale of Goods.
Shoshi Mohun v. Nobo Krishto-.
L L. Bep. 4 Cal. SOU
to Share the Subject of Matter of Litiga-
Set Champerty. 3.
Rah Coomar v. Chunoee Canto.
I. L. Rep. 3 Cal. 388.
to Settle Property on Adopted Son-
Specific Performance of.
Set Hindu Law— Adoption. 16.
Bhala e. Parbhu.,.1. L. Rep. 3
Bom. 67,
— Specific Performance of.
See Specific Performance.
to Supply Labour.
Set Act Zul of 1BS9.
Rowson v. Hanama Mrstki,..!.
L. Rep. 1 Had. 280.
to Take Shares in a Company.
See AgreemeDt to take Shares in a
Company.
Anandji Visram *. Nariad S. &
W. Co...L L.Bep.lBom.
830.
Time of the Essence of.
See Contract. 0.
Sooltah Chund v. Schiller. ..I.
L. Bep. 4 Cal. 303.
Transfer of Contract of Sale.
Sit Contract. 1.
1. Transfer of Contract of Sale— Con-
struction— Cargo — Entire Cargo — Readiness and
Willingness.] On the l6th of April 1878, the
plaintiffs contracted to purchase from Messrs.
Pinlay, Muir& Co. of Bombay, at Rs. 18 per ton,
" the entire cargo of coal per ' Culzean,' amount-
ing to 900 tons or thereabouts." On the itth of
April, the plaintiff transferred thecontract to the
defendant and one Nanabbai Bomanasha, and
the following endorsement was made upon the
contract : — " The contract to be transferred to
Messrs. Tullockchund and Shapurji and Nana-
bhai Bomansha at Rs. soj. For C. H. B-
Forbes & selves, W. Tennent & Co." Under-
neath this endorsement the transferees wrote
the following words :■ — " Accepted 450 tons at
Rs- 20I per ton. Nanabhai Bomansha. Accept.
Di,iii,.db»Goo<^le
DIGEST OF CASES.
OONTBACT— contd.
ed 450 tons at Rh. 20). Tullockchand and Sha-
purji." The " Culzean ' arrived at Bombay
withacargoof 2,167 tons of coat, of which it
appeared that 1,300 tons had been shipped to
the Bombay, Baroda and Central India Railway
Company, and 867 tons to (he order of the
shippers, Messrs. Mason & Co. of Leith.
Messrs. Finlay, Muir&Co. were agents in Bom-
bay for the owners of the " Culzean" and for the
shippers of the coal. On the 21st of June the
"Culzean" began to discharge coal for the Bom-
bay and Baroda Railway Company, and on the
27th of June about 382 tons had been discharg-
ed. The defendants refused to take delivery of
the coal, on the ground that the contract trans-
ferred to them was a contract for an entire
cargo. The plaintiff sued the defendants for
non-acceptance, contending that there had been
no transfer to the defendants and Nanabhai
Bomansha of the original contract, but that tht
above endorsements amounted to a new offer
which had been accepted by the plaintiff, and
constituted several contracts with the defendants
and Nanabhai Bomansha : —
Held, that save as modified by the words of
the endorsements by the defendants and Nan;
bhai Bomansha respectively, all the terms of the
contract between Messrs. Finlay, Mi
Co. and the plaintiffs were binding as between
the plaintiffs and the defendants and Nanabhai
Bomansha respectively. There was no incon.
sistency between the endorsements and the ori-
ginal contract, in the fact that the endorsements
mentioned 450 tons, whereas the original con-
tract was for 900 tons or thereabouts. The join!
effect of the endorsements and the original
contract was that the defendants agreed
purchase 450 tons, part of an entire cargo of poo
tons or thereabouts. As the two lots of 450
tons were to come out of a cargo described 1
" of 900 tons or thereabouts," the " thereabout;
of the original contract applied to each of 450
tons, and the contracts of the defendanl
Nanabhai Bomansha respectively were in
case for 450 tons or thereabouts, out of an
cargo of 900 tons or thereabouts.
The circumstance that the defendants and
Nanabhai Bomansha were in some way com
ed, and operating, as it were, together, though
not affect the question. Had the contract been
with the present defendants alone for 450 tons,
CONTRACT— contd.
the rest of the 900 tons being sold to a pur-
chaser quite unconnected with them, or had the
plaintiffs themselves retained the rest, the defend'
nts would still have been entitled to decline the
50 tons, unless the 900 tons or thereabouts was
he entire cargo. A person who contracts to buy a
argo or an " entire cargo" is not bound to accept
goods which though answering in quantity and
ilitj to the quantity and quality mentioned
that ill the cargo purchased, are not in fact
the cargo, by reason that the ship has other
cargo, and particularly of the same description,
on board. Bomraman v. Drayton (L. Rep. 2
Ex. D. 1 5) followed. Semttt :■- -<: if the defend-
ants had not been entitled to refuse to accept
delivery for the reasons above set forth, the
issue of whether the plaintiffs were ready and
willing to deliver the coals to the defendants
and Nanabhai Bom&nsba *hould be found in the
affirmative, notwithstanding that after delivery
of the 1.300 tons consigned to the Bombay and
Baroda Railway Company, there would only
have been 400} tons for the defendants and
Nanabhai Bomansha respectively, as such deficit
would be covered by the " thereabouts" of the
original contract. C. H. B. Forbes o. Tul-
ManockcHAND. Green, J I. L.
Bep. 3 Bom. 886, 1878.
Debentures — Interest— Agreement to
purchase Future Interest in Immoveable Property
— Registration.'] A- held debentures of B., a
Municipal body, and had a right to exchange
them for lots of equal value, to be selected by
him from building lands belonging to B. ; the
rent of which lots was to be set off against the
interest on the debentures. A. notified to B.,
that he had selected certain lots, and asked
aid the debentures for a time,
setting the interest against the rent. B. con-
sented to i4.'s proposal, and at the same time
informed A. that the selected lots exceeded the
value of his debentures, and that he must pay
the difference. A. made no reply to this com-
d B. for interest on the de-
A. afterwards s
bentures r—
Held, that A. was not entitled to interest, the
contract being complete, and the indication by
S. of the difference in quantity not amounting to
in introduction of a new term into the negotia-
D.gmzed by G00gle
DIGEST OF CASES.
CONTBACT-
■M
A correspondence between A. and B. amount-
ed to a contract to purchase a future interest in
immoveable property i —
Held, that such correspondence did not require
registration under the Registration Act XX. of
i866. The Port Canning Land Investment
Co. e. Smith.., L. Bep. 1 I. A. 124, 1874 ; L.
Bep, B P. C. 114 ; 31 V. B. 310 ; 30
L. T. N. a S31.
3. Consideration,'] By a written agree-
ment duly registered, T., in consideration of the
recognition by bis two brothers of his rights in
the joint and undivided property of the three
brothers, and of their undertaking to procure the
entry of his name in the revenue register in
respect of a one-third share, agreed not to sell,
transfer, or mortgage such share except to bis
brothers, and should he desire to dispose of
such share, to dispose of it to them for a certain
price. TVs name was subsequently recorded as
proprietor in respect of the one-third share, and
he then in breach of the agreement, gave a
usufructuary mortgage of bis share to the
plaintiff. In a suit by the latter to enforce the
mortgage ; —
Held, that the agreement was valid. If it was
made out of natural affection, it was expressed
in writing and registered. If the consideration
was that expressed, via., the recognition of
TVs right to a share, there was a consideration.
The mortgage to the plaintiff, therefore, was bad
as against TVs brothers. Lakhmi Chand v.
TORI LaL. Turner and Spankie, JJ..X L.Bep.
1 AIL 618, 1B78.
4. Consideration — Immoral Considera-
tion—Past Cohabitation.] M. had for many
years lived with G. as his concubine. In consi-
deration of such past cohabitation, C, by an
agreement in writing, dated the aSth of March
1869, and duly registered, settled an annuity on
M., charging a portion of his real estate with
the payment of such annuity. In a suit by M.
against G.'s heir, his married, wife, to enforce
the agreement : — Held, that the consideration for
the agreement was not, under the law in force
at the time of its execution, immoral, nor was
the agreement, under the same law, void for
want of consideration.
Held also, that before M. could recover from
the defendant on the agreement, it was neces-
sary to show that the defendant had received
funds available to meet the claim from the
I COKTRXCT-contd.
profits of the estate charged with the payment
of the annuity, or from other property of G.
Man Kuar b. Jasodha Kuar. Pearson and
Turner,]] I. L. Hep. 1 All. 478,1877.
8. Act IX. of 1872, if 20, 33, CI. a—
Mistake of Fact and Law— Error in Statement of
Account,} Where the property of a judgment
debtor had been attached in execution of a sum
claimed to be due under a decree, but which sum
fact included interest not awarded by the
Held, that an agreement, whereby the debtor
obtained the release of bis property on condition
of paying by instalments the entire amount
claimed, inclusive of the interest, was not un.
lawful and void under CI, 2, ( 23 of Act IX. of
1872 ; and that the mistaken belief of both par.
ties to the agreement that interest could be re-
covered by proceedings in execution, was not a
mistake of fact rendering the agreement void-
able under } 20 of that Act. Ina written agree-
ment by a debtor to pay his debt by instalments
securing the payment by a mortgage of land, the
amount of the debt was erroneously stated to be
greater than it actually was. In a suit on the
agreement 1 — Held, that such an error was
ground for reforming the account, but not for
setting aside the agreement. Sbth Gokul
DassGopal Duis. Muru..,L. Bop. 5 I. A,
78, 1878 ; I. L. Bop. 3 Oal. 602 ; 2 Col,
Bop. 106.
S. C. under Interest. 11.
6- Act IX. of 1872, ) 2$.— Consideration
— Void Contract.] While certain hundis were
running, the drawer having become bankrupt,
the acceptor gave the holder a mortgage on cer-
tain property as security for the payment of the
hundis in the event of their dishonour. In a
suit on the mortgage deed by the holder, the
hundis being dishonoured -.—Held, that the mort-
gage was void under the provisions of g 25 of
the Contract Act, there being no consideration
for it ; for even assuming that the defendant had
received any portion of the hundis when dis-
counted, and was liable on them, neither that
antecedent benefit nor the existing liability con.
stituted a consideration as defined in the Con-
tract Act, and no act, abstinence, or promise on
the part of the holder, appeared which would
constitute a consideration. Manna I.alu. Bank
Oe Bengal. Turner and Spaniic, JJ...I. L.
Bop. 1 All. 308, 1876.
by Google
DIGEST OF CASES.
CONTRACT— contd.
7. ■ Act IX. of 187a, i 28 - Agreement net
to appeal^ The defendant, pending proceedings
in execution of a decree obtained against
by the plaintiffs, entered into an agreement
with them nottoappeal against the decree if they
would give him until a certain date to satisfy it.
The agreement having been notified to theCourt,
proceedings in execution were accordingly
stayed. The defendant, contrary to the ten
the agreement, appealed i — Held, that f 28 of
the Contract Act IX. of 1872 did not apply to
the case, and that the agreement not to appeal
was not prohibited by the language or spirit of
the Contract Act, and that the Appellate Court
was bound by the rules of justice, equity and
good conscience to give effect to it, and to re-
fuse to allow the defendant to proceed with the
appeal. Anant Das t. Ashburner 3t Co...
I. L. Sep. 1 AIL 267, 1876, 7. B.
8. 'Act IX. 1^1872, f 28, Exception 1—
Agreement to refer to Arbitration — Specific Per-
formance— Suit for Damages for Breach.-] A
contract entered into by the plaintiff with the
defendants contained a clause providing, in case
of any dispute, for a reference to two arbitra-
tors in England, "one to be appointed by the
buyers, the other by the sellers' agents; such
brokers' decision to be final." The contract
Contained no provision for making the submis-
sion to arbitration a rule of Court, so that 9 and
10 Wm. HI., C. IS, and 3 and 4 Wm. IV., C. 42,
did not apply. Matter of dispute arising, the
defendants refused to appoint an arbitrator, and
an award was made by the arbitrators appointed
by the plaintiff. Previous to the making of the
award, the plaintiffs, Under the provisions of
the Common Law Procedure Act of 1854, had
the submission to arbitration made a rule of the
Court of Common Pleas. In a suit in which
the plaintiff's claim was for damages awarded by
the arbitrators and incurred by the plaintiff in
respect of the breach of contract:— Held, that
the award was invalid. The effect of making
an agreement to refer, a rule of Court under
the provisions of the Common Law Procedure
Act, 1854, is only to give more extended powers
to the arbitrators in the matter of the reference
and to render the parties liable as for contempt
of Court for improper conduct in the reference.
It does not at all deprive the parties of their
Common Law right to revoke the authority of
the arbitrators, at any time before the award,
CONTRACT— contd,
nor prevent a party to an agreement to refer,
from declining to appoint an arbitrator.
Held also, that the contract was not within
the scope of I 28 of Act IX- of 1873. To make
in agreement conform to the exception 1 of that
(ection, there must be an exclusion of the Courts
n all respects except the matter which is the
result of the arbitrators' award.
Contracts similar in character to those in Scott
v. Avery (2 Jur. N. S. 8iS, S. C.5H.L C. Sll),
and Trtdwen v. Holman, (8 Jur. N. S. 1080, S. C.
1 H. eV C. 72) which exclude the jurisdiction of
the Courts until an award is made, are within
the exception and are not illegal.
Quare— Whether it was intended by that
ception to authorize the Court to entertain a
it for specific performance of an agreement to
refer to arbitration. , 28 of Act IX. of 1873
does not forbid an action for damages for the
breach of an agreement. Koeqler e. The Co-
rimga On Co. Pkear, J LL, Rap. 1 Cat. 42,
1375, affirmed on appeal, p. 466, where Garth,
C.J., says, p. 468— "The defendant contends that
the contract on which this suit is founded is one
of the class described in the first exception of ,
28 of the Contract Act, and consequently, that
as the dispute which has arisen between himself
the plaintiffs remains undecided by arbitra-
, no suit can be brought upon it, except for
specific performance of the agreement to refer-
Certainly if this were so, the plaintiffs would be
unfortunate position, because the defend-
ant has distinctly refused to refer the dispute
arbitration ; and as, according to the present
ite of the law, no suit will lie to compel him
refer, the defendant, if he is right in his
ntention, may, by his own breach of the eon-
tract, deprive the plaintiffs of any remedy what-
" But "the contract is not one of those
described in the 28th Section of the Contract
Act. That section does not apply to contracts
'hicb merely contain a provision for referring
disputes to arbitration, but to those which wholly
partially prohibit the parties from having
ourse to a Court of Law. The first exception
:hat section applies only to a class of con-
tracts where (as in the cases of Scott v. Avery
and Tredven v. Holman, cited by Phear, J., ubi
supra) the parties have agreed that no action
shall be brought until some question of amount
has first been decided by a reference."
Digitized byGOO^Ie
DIGEST OF CASES.
( 332 )
CONTRACT— tontd.
9. Act IX. of 1873, J &—Tltiie of the
Essence of the Contract — Right to rescind — Reci-
procity of Obligation.] Section 39 of the Contract
Act only enacts what was the law in England,
and the law in India, before the Act was passed,
in, that where a party to a contract refuses
altogether to perform, or is disabled from per-
forming, his part of it, the other side has a
right to rescind it.
In a suit for damages for the non-delivery of
linseed upon a contract to deliver 200 tons of
linseed, delivery in all April and May, the terms
of which as to payment were cash on delivery,
part delivery had been made by the defendants
between 1st and 8th May, and a sum of Rs. 1 ,000
had been paid on account by the plaintiffs.
The balance due not having been paid, the de-
fendants refused to deliver the remainder of the
linseed. The refusal was contained in • letter
of the rath May, in which the defendants' attor-
ney wrote as follows : —
" We are instructed to give you notice, that
as you have failed to pay the price of the linseed
delivered under Mr. Beer's contract in terms of
the said contract, they (our clients) hereby
cancel the said contract, and will make no fur-
ther deliveries under it."
The plaintiffs answered, that they considered
that the whole amount of linseed contracted
be delivered should have been delivered before
the defendants were entitled to demand pay-
ment, but added that they were willing to waive
that objection on adjustment of a sum which
they claimed for excess refraction, and an
allowance for some empty bags which they said
defendants had used for purposes unconnected
with the contract
Further correspondence ensued, but the de-
fendants insisted to the last, that on account of
the non-payment by the plaintiffs of the balance
due, they would make no further delivery.
The plaintiffs, accordingly, bought in other
linseed against the defendants, and then sued
for the loss they had sustained.
Held, that there was not such a refusal or
part of the plaintiffs to perform their part of the
contract as to entitle the defendants to rescind
under { 30 of the Contract Act.
Held, per Garth, C.J., that f Ji of the Contract
Act was not applicable ; the reciprocal obliga.
lions were the delivery of the seed, and payment
of the money 00 the occasion of each delivery.
CONTBAOT—ccfttt
If the plaintiffs had been unwilling or unable to
', the defendants would have been justified
in refusing to deliver the seed ; but the defend-
ants did deliver the seed ; the neglect to pay in
this instance was after delivery when the reci-
procity of obligation had ceased ; and there
being no evidence that the plaintiffs were un-
willing or unable to pay for the deliveries which
the defendants refused to make, the neglect to
pay for past deliveries was, under the circum-
!es, no reason for refusing to make all
further deliveries ; and that time was not of the
ice of the contract so as to bring the case
within i 55 of the Act.
Per Markby, J., that f 51 would have applied if
the defendants, when they came to make deli.
very, had insisted upon the contract being strictly
performed, and payment being made upon deli-
very, and that if the defendants had so insisted,
time might have been of the essence of the con.
tract within the meaning of f 55. Sooltan
Chund e. Schiller. Garth, C.J., and Markby,
J...L L. Sep. 4 Cal. 308; 8 Cat Rep. 287,
1678.
10. Act IX. of 187a, § 44— Release to
one of several Partners.'] In a suit for damages
against a partnership firm, the plaintiffs com-
promised the suit with one of the defendants on
the terms contained in the following docu-
ment:— "Received from G. M. S. the sum of
Rs. 9,500 in full discharge of all claims upon
him as an individual and as a partner in the late
firm of B. S. & Co., and we hereby undertake to
immediately withdraw the suit against him and
others in the High Court, instituted in connection
with certain sales of jute to the firm of B. S. &
Co. while he (G. M, S.) was a partner,"
Held, that i 44 of the Indian Contract Act
(IX. of 1873) applied. That section applies not
only to a release to a man from his promise
before breach, but also 10 a discbarge after
breach; and the meaning generally of the section
is that a release to one of several contractors,
does not discharge the co-contractors. A. alone,
therefore, was discharged.
Held also, that the other partners of the firm
of B. S.&Co. not being parties to the agree-
ment expressed in the receipt, by which the
plaintiff undertook to withdraw his suit, there
was no breach of faith in the continuance of the
action against them. Kirtee Chuhder Mrr-
tert-Struthers. Wilson,] L L. Bop. 4
Cal. 330 ; S Cal. Bop. 540, 1878,
Digitized by GoOgle
DIGEST OF CASES.
CONTRACT —contd.
lL Act IX. of 187*, ( 72— Money
under Mistake.'] A treasury officer, under the
imposition of a gross fraud, paid money t(
defendant, who was the innocent agent of the
person who contrived the fraud. In paying the
money (he treasury officer neglected no reason-
able precaution, nor was he iu any way guilty
of carelessness ; —
Held, that § 7a of the Contract Act applied,
and that the defendant was bound to repay the
money received by him, and that he could not
defend himself by the plea that he had paid it
to his principal ; nor did the circumstance that
the principal was himself a servant of the plain-
tiff, and in the course of his employment obtain-
ed facilities for the commission of the fraud,
relieve the defendant from his liability, it not
being shown that the plaintiff in any way faci-
litated the fraud by the omission of any reason-
able precautions. Shugan Ckand i. The Go-
vernment of the N. W. Provinces. Turner,
C. J. (Offg.), and Oldfidd, J...L L. Sep. 1 AIL
79, 187B.
IB. Act IX. of 1872, , U— Promissory
Note — Agreement to pay Interest at high rate on
Default in Payment of Note—Penalty.'} The
defendant and one D. gave to the plaintiff,
a money-lender, on the 6th April 1875, a joint
and several promissory note whereby they jointly
and severally promised to pay the plaintiff on the
6th September 1875 "the sum of Rs. 400, foi
value received cash in hand, paid on signing
this bond ; should we neglect or fail to pay thi
amount on due date, then only shall it carry
interest from and on due date to date of pay-
ment at the defaulting rate of 10 pir cent, pe
mensem." At the time of the making of the
note the defendant and D, owed money to the
plaintiff on other promissory notes, and a
of Rs. loo was deducted from the amount of the
note oE the 6th April, in respect of the amou;
due on one of such notes, which was givi
up, and for interest on three other notes. The
plaintiff admitted that at the time of the exe-
cution of the note in suit he deducted Rs. 125 on
account of interest in advance for Eve months on
the amount thereof, and the balance, Rs. 175.
wis paid to D., who died before the note became
due, It appeared that the defendant did not
read the note when he signed it. In a
brought to recover Rs. 400 as principal and
Rs. 400 as interest alleged to be due on the note
on default being made in payment ;—
CONTRACT --contd.
Held, that the contract to pay interest at 10
rr cent, per mensem, if the principal sum were
it paid on the due date was not in the nature
of a penalty, notwithstanding that that rate of
interest was called, in the note, " a defaulting
rate." It was not a case in which a certain sum
is agreed to be pud on a breach of contract, and
% 74 of the Contract Act, therefore, did not
apply.
Held also, that looking at the true nature of
e transaction, the note contained a false state.
ent of the consideration, which amounted
ly to Rs. 275 ; and considering that there was
nothing to show that the defendant understood
the real nature of the transaction ; that the rate
.erest was exorbitant, and the consideration
grossly inadequate, the transaction was not one
whioh ought to be enforced by a Court of
Equity. Mackintosh v. Hunt. Garth, C.J.,
md Macpherson, J...L L. Rep. 3 Cftl 303,
1877.
13. Act IX. of 1873, § 74— Unconscion-
able Bargain.] The plaintiff sued to recover Rs.
643.10-6, the value of 1,430 paras of paddy, due
under an account dated the 8th of September
876. The account, written on a cadjan, was
for Rs. 315 payable with interest at 12 per cent,
within fifteen days, and in default the plaintiff
obe paid, on the 14th of November 1876,
paddy for the amount due calculated at the rate
innas 7 pies per para. Immediately after
secution of this agreement the price of rice
the defendant did not pay within the fifteen
days, and In the plaint the price of rice was cal-
culated at 8 annas per para : —
Held, that the bargain was unconscionable.
Under the Contract Act, § 74, in a case falling
within its terms, only reasonable compensation
mid be given, which in the present case would
be interest at a somewhat high rate. The con-
tract in effect was that, if the principal with in-
terest at 12 percent, were not paid on the 22nd
of September, double the amount should be
payable on the 15th of November. Such aeon-
tract a Court of Equity would not enforce,
Venkittakama Pattar V- Kambanath Kes-
hava Memon. Morgan, C.J., and Kindersley, ].,
I. X.. Rep. 1 Wad. 849, 1877.
14. Act IX. of lol2,il2j— Surety—Bond
Consideration— Special Appeal—Evidence.'] The
plaintiff advanced to one K. a sum of money on
a bond hypothecating certain property, and which
D,„i„.db»Googlc
DIGEST OF CASES.
CONTRACT— contd.
contained the following clause ; — " I, V. (the
defendant), do hereby declare that if the money
due to (he creditor should not be received from
the property of K., I, the surety, shall pay the
money out of my pocket to the creditor." The
defendant did not sign this bond, but two days
after its date, and after the money had been
advanced to K,, the defendant execute
rantee or surety bond to the plaintiff to secure
lhe repayment of the money advanced toJC, the
plaintiff not promising to do anything, not doing
anything, for the benefit of K. : —
Held, on a consideration of the evidence,
(which the High Court in special appeal was
entitled and bound to consider, for the sake of
explanation, and the possible clearing up of
doubts as to the hue position of the surety), that
the defendant acted as surety not on behalt of
the principal debtor, but for the benefit of the
plaintiff alone, who agreed to do nothing and
promised nothing in return, and therefore that
the security bond was without consideration, and
void under f 137 of Act IX. of 187a. Nana
Ram v. Mshih Lal. Stuart, C.]., and Spankie, J.
I. L. Rep. 1 AIL 487, 1877.
S. C Construction of Statute. 7.
18. Act IX. of 1873, S ijS^Custody of
Servant—Possession— Pledge of Goods— Trover.]
A servant entrusted by his mistress with the
custody of goods, pledged them during her ab-
sence. The mistress sued in trover for the
goods; — Held, that the custody of the servant
was not " possession" within the meaning of
5178 of the Contract Act; but that even if he
was to be regarded as having taken the articles
into his possession for the purpose of pledging
them, the case came within the second proviso
to that section, and, therefore, that the action
would lie. Biddo moves Dabee v. Sittarau.
Garth, C.J., and Markby, J...L L. Rep. 4
Oal. 497 ; 3 Cal. Bep. 388, 1878.
16. — Contract of Affreightment -Condi-
tion precedent, "after two Country Voyages."]
When a shipowner has contracted to give a
certain notice to a charterer, or to do any other
act, with a view to inform the charterer when
theship will be ready, the charterer is not bound
to ship his goods until the shipowner has given
him that notice or done that act.
Held, therefore, in an action for not shipping
goods under the following contract :— " H. S.
to arrive after completing two country voyages
CONTRACT— contd.
for London on notice in May or June," it appear,
ing that the plaintiffs had sent the vessel for one
country voyage only, that the defendants were
entitled to refuse to ship the goods. Flkmino
v. KOBOLER. Garth, C J., and Martby, J... I.
LRep. 4 Cal. 887; s« 2 Cal. Rep. 188;
8 CaL Rep. 807, 1878.
17. — Contract in Restraint of Trade—
Application, of Lam of Place of Performance —
Lex Loci Contractus— Contract Act IX. of 187a,
i 37 — English Lam— Stamp— Agreement execu-
ted in England afterwards executed in India.)
The defendants by a contract in writing execu-
ted by them and one of the plaintiffs in
England, and subsequently executed by the
remaining plaintiffs in India, agreed with the
plaintiffs to proceed to Madras to enter the
plaintiffs' service, for a term of five years,
terminable at any time, by either side, by
giving four months' notice in writing, or by
payment on the one side, or foregoing on the
other, of three months' salary. The defendants
covenanted that at the end of the five years, or
on the sooner determination of the service, they
" would not, within the distance of 800 miles from
Madras, directly or indirectly, carry on or take
service or enter into copartnership with any
person or persons carrying on any business then
being carried on, or at any time thereafter to be
carried on, by the plaintiff, and further agreed to
to England whenever called upon to do so
by the plaintiffs, who agreed to pay their passage
money. The defendants accordingly went to
Madras, and entered into the plaintiffs' service
under the agreement. After about at years the
intiffs terminated the service in the manner
templatedby the agreement, and requested
the defendants to return to England, offering to
provide their passage; but the defendants refused
to return to England, and set up and commenced
to do business for themselves in Madras of the
same nature as that carried on by the plaintiffs.
In a suit by the plaintiffs against the defendants
for damages for breach of the contract, and for
a perpetual injunction restraining the defend-
from carrying on, in, or within 800 miles
from, Madras, any business carried on by the
plaintiffs 1— ■
Held, 1st, that the agreement was liable to
Indian stamp duty, and was inadmissible in
evidence until such duty and the prescribed
penalty were paid.
Diaxized by Google
DIGEST OF CASES.
CONTRACT— cenid. CONTRACT—
Held also, that the general rule that the
Validity of a contract is to be determined by the
lair of the place at which the contract is made,
is subject to exceptions, one of such exceptions
being that a contract made in one country for
the purpose of contravening the laws of another
country within that country cannot be enforced
in the Courts of that other country. Id the
present case the contract was essentially
of service to be performed in India, and the
breaches complained of could only have taken
place in, or in the neighbourhood of, India , and
the Courts of this country will not enforce:
tract made abroad, to be performed in this
try, contrary to the policy of the law of this
country. And by j 27 of the Contract Act IX.
of 1 872, by which the present case was governed,
the agreement sued on was void as being ii
restraint of trade. Even if the validity of the
contract depended on the law of England, the
limit of 800 miles was unreasonable, and th<
case was not one in which a narrower limit hac
also been mentioned, which might so far hold
Held also, that though the defendants were
bound to go to England when required by the
plaintiffs to do so, yet that the latter suffered
damage by the defendant's breach of this part of
the contract, for if the defendants ha
up in business, the plaintiffs would have suffered
no damage by their remaining in India. And
would only be by its operation improperly
restraint of trade that the agreement to proceed
to England could benefit the plaintiffs. Oakbs
Sc Co. v. Jackson. Kindersley, J...L L. Hop. 1
Had. 134, 1876.
17B. Restraint of Trade— Void— Agree-
ment^ In a suit upon an agreement by which the
defendants bound themselves to remain subject
to the orders of the plaintiff the head of their
caste, and not to cany On their profi
working in lead with the assistants
other persons than their caste-people, and by
which, in case of failure to perform the agree-
ment, certain penalties were imposed : —
Held, that it would be against public policy tt
give effect to the contract, as the provision con
fining the parties to it to the members of theii
own castefor all assistance that might be required
for carrying on their profession might become a
very serious restraint on trade operations. Vai-
jhelinga 11. Saminada. lines and Muttusamy
Ajyar, JJ L L. Bop. 3 Had. 44,1878.
ntd.
IB. Unlawful Consideration— Void ~
Agreement.'] F. was required by a Magistrate
under the Criminal Procedure Code, to furnish
sureties fcho should be responsible for bis
good behaviour each in a certain sum. 5- agreed
to become a surety on condition that F- would
deposit with him the amount of the security.
F. made the deposit, and 5- became a security.
The period for which 51 was responsible for F.'s
good conduct having expired without F. for-
feiting the security, and S- refusing to return
the deposit, F. sued 5. to recover it:— Held,
that as the consideration for the agreement
defeated the object of the law, the consideration
was unlawful, and F- was not entitled to relief.
Fatbh Singh v Sahwal Singh. Turner, C.].
{Offg.),andf«irioB,J...I. L.Rep. 1 AIL 761,
1878.
CONTRACT ACT IX. OF 1872.
i »3 — Composition Deed— Resolution of
creditors of Insolvent Firm to wind up
voluntarily— Release inserted in Deed
purporting to be drawn in accordance
with said Resolution— Cancelling Deed.
See Cancellation of Signature.
The Oriental Bank Corpora-
tion v. John Fleming...!. Ij.
Hep. 3 Bom. 242.
H 18 and 19— Misrepresentation — Breach
of Duty — Negligence — Composition
Deed, purporting to be in accordance
with Resolution of Creditors of Insolvent
Firm to wind up voluntarily the Business
of the Firm— Introduction of Release.
See Cancellation of Signature.
The Oriental Banr Corpo-
ration v. John Fleming...!.
L. Rep. 3 Bom. 242.
H9-
Sir Sale of Goods.
Shoshi Mohun ». Nobo Krishto.
I. L. Rep. 4 CaL 801.
H to and 22— Mistake.
See Contract 6.
Seth Gokul i. Murl]...L.B. 6
L A. 78 J I. L. Bap. 8 CaL
609.
— { 25, CI. 3— Consideration.
See Kistbandy.
Heeka Lall Mookhopadhava *■
pHUKFtrr Sino-.X L. Sep.
4 CaL 000.
Diarized by Google
( 829 > DIGEST OF CASES.
CONTRACT ACT IX OP 1872— «m«.
( MO )
— i 35 — Consideration — Void Contract.
Set Contract. 6.
Manna Lalv. Bank or Bengal...
I. L, Bep. 1 AIL 809.
Mi-
Set Contract. 17. 17a.
Oakbs&Co. V- JACKSON...X. L.
■ Bep. 1 Had. 184.
f 28 — Agreement not to appeal.
Set Contract. 7.
Anant Das ». Ashburner...L
L. Bep. 1. All. 267.
— s8— Exception 1.
See Contract. 8.
Koeoler v. Coring* Oil Co...l.
I*. Bep. 1 Cal. 42, 466.
$37.
See Alteration of Contract.
Eds v. Kanto Nath Shaw. ..I.
L. Bep. S Cal. 220.
*39-
Set Contract. 9.
Sooltan Chand v. Schiller. ..I.
L. Bep. 4 Cai 253 ; 30aL
Bep. 287.
143-
See Joint OoBtractora.
Hehendro p. RA)1NDR0LALL...L
L. Bep. 8 CaL 863 ; 1 Cal.
Bep. 488.
S44-
See Contract. 10.
KlRTBE ChUNDER V. StRUTHHRS...
I. L. Bep. 4 CaL 886 ; 8
Cal. Bep. S46.
— $ j 1— Reciprocity of Obligation— Right to
Rescind.
St* Contract. 9.
Sooltan Chand t>. Schiller,
L. Bep. 4 CaL 262.
— f 55 — Time of the Essence of a Contract.
Set Contract. 9.
Sooltan Chard v. Schiller. .X
L. Bep. 4 CaL 262.
165-
Set Arbitration. 2.
Kheta Mall Chun: Lal...I. Ij.
Bep. 2 All. 178.
CONTRACT ACT IX. OF 1872— «"<«■
** 65,68, 69.
See Mortgage. 29.
Amhassee v- Moharanee Raj-
soop.-.I. L. Bep. 4 Cal. 88.
— I 69 — Mortgaged Property sold to several
—Payment of Whole Debt by one— Con-
tribution.
See Contribution. 2.
1 MoTHOOKANATHn. KrISTOKUHAR.
L L. Rod. 4 Cal. 369.
tit-
See Contract. 11.
Shuoan Chand v. Government.
L L. Bep. 1 All. 79.
*7«-
Stt Contract. 13.|13.
Mackintosh c. Hunt. ..I. LBep.
2 CaL 902.
Vainkitaramna u. Kambanath...
L L. Bep. 1 Had. 149.
. J 76— Cashing Currency Note— Sale.
See Government Currency Note.
EHFRESS *. JDGESSL'R MOCHI...L
I,. Bep. SOei. 879.
,78.
See Bale of Goods.
Shoshi Mohun v. Nobo Krishto.
I. Ii. Bep. 4 CaL 801.
(86.
See Bale of Good*.
Shoshi Mohun 0. Nobo Krishto.
I. L, Bep. 4 CaL 801.
■ — ■ i 113, Illustration 3.
See Sale of Gooda.
Shoshi Mohun v. Nobo Krishto.
I. LBep. 4 Cal. 801.
f 127.
Set Contract, 14.
Nanah v. MKHIN...T, I>. Bep. 1
AIL 487.
§§ 133, 134, 135, 139 — Trust Deedin Favour
of Creditors — Execution of, by Creditor —
Eventual Remedies of Surety— Discharge
of Surety.
Set Principal and Surety. 4.
Pocose*. Bank of Bengal... t. It.
Bep. 8 CaL 174.
mortized by Google
( fll ) DIGEST OF CASES- ( US
CONTRACT ACT IX. 07 1872— contd. CONTRIBUTION— contd.
— JJ 151, 153 — Carriers— Railway Company —
Loss by Robbery of Goods carried.
Set Railway Company. 3.
Kuverji Tvisidas v. Tub G. I. P.
Rv. Co... 1. 14. Rep. 8 Bom.
108
* 178-
Sn Contract IB.
BlDROMOYBE v. Sitarah.,.1. L.
Rep. 4 Owl. 497; 8 0*1.
Rep. 396.
Set Jurisdiction. 12,
Kartik Churn 0. Gopal Kisto..,
I. L.Rep.SCaL 384.
taut.
See Hindu Law— Ancestral Trado.
JOVKISTO ». NlTTYANUND...!. Ii.
Rep. 8 Cal. 78S.
1 1 - 5 265 — Suit (or Dissolution of Partnership
— Jurisdiction exists where Partners all
reside, as well as at Place of Business.
See Jurisdiction. 6.
Ram as ami v. Theses vbnoada.
saui L L. Rep. 1 Mad.
840,
CONTRIBUTION.
Sie Mortgage. 8.
Bhagirath v. Naubat Singh. ..I
L. Rep. 3 All. 118.
.S>e Sot-off.
Udai Simon *. Jaoan Nath...L
L. Rep . I AU. 18S.
— Suit (or.
See Limitation. 60.
Fuckeruddbbn Mahomed Ahsan
v. Mohina Chunder Chow-
DKV...I. L. Rep. 4 CaL 020.
— - Suit for — by Pattidar who has paid Reve-
one due on Co-Sharers' Shares.
See Act XIX. of 1878, f 241.
Rah Dial v. Gulab Singh.., I.
3L Rep. 1 AIL 80.
J. Suit fat— Redemption of Mortgage.']
The purchaser of a share in a mortgaged estate,
who has paid off the whole mortgage debt, ii
order to save the estate from foreclosure, can
claim from each of the other mortgagors a con-
tribution proportionate to his interest in the
property, but be cannot claim in the lump sum
from the other mortgagors collectively, the
hole amount paid by him.
Where such a claim had been decreed, and
some only of the defendants appealed, the
decree was reversed as regards those defendants'
who had not appealed, as well aa against those
who had, the ground being common to all.
Hiha Chunuh. Abdal. Turner and SptmkU,]].
I. L. Rep. 1 AIL 4», 1877.
— Mortgaged Property, Sale of, to
different persons — Payment of Debt by one-~
Contribution— Contract Act IX. of (S73, § 69.J
A. and B. respectively, at different dates, pur.
chased portions of a property on which there was
mortgage- On the mortgagee obtaining a de-
cree against the property, S. paid off the entire
debt and brought a suit against A. for contribu-
Held , that he was entitled to recover, although
the deed of sale to B. there was an under-
taking by B. that he would discharge all the
liabilities of the mortgagor, including the mort-
gage on the property. Section 69 of the Indian
Contract Act (IX- of 1873) includes not only
of personal liability, but all liabilities to
payments for which owners of lands are indirect-
ly liable, those liabilities being imposed upon
land held by them. MothooRanath Chutto.
PADHAYA o. Kristokumak Ghose. Markby and
Prinsep,]] L I* Rep. 4 Cal. 868, 1878.
COM VERSION— Measure of Damages.
Sec Damage*. 4.
Burmah Trading Company 0,
Mirza Mahomed...!. Rep.
B I. A. 130 ; I. L. Rep. 4
CaLlie.
CONVERSION 07 COINAGE.
See Enhancement of Rent. 8.
Mbbr Mahomed H ossein e.
Forbe3...L, Rep. 2LA.1.
CONVICTED PERSON— is not an " Accus-
ed Person" — Bail.
See Criminal Procedure Code, Act
X. of 1873, (880.
Rio. v. Thakur Pars had... I.
L. Rep. 1 AIL 161.
CONVICTION OF CULPABLE HOMX
CXDB ON CHARGE OF STURDBR.
Set Appeal— Criminal 4.
Empress ». JudoonathGangoolt.
L L. Rep. 8 0»L 378.
D.gmzed by G00gle
( '
DIGEST OF CASES.
( «« )
CONVICTION ON SEVERAL
CHARGES.
.^—Combined Sentence Measures— Right of
See Appeal— Criminal. S.
Reg. «. Rama Bkivoowda...L It.
Sep. 1 Bom. 223.
— Offence made up of Parts— Sentence.
See Criminal Procedure Code, Act
X. of 1873, § 464.
Ehpbrss s. Budh Singh. ..L L.
Bop. 3 AIL 101.
1, Separate Sentences — Housebreaking
—Theft.] There should be either i
for both offences in a case of conviction of
house-breaking by night in order
theft, and theft, not exceeding that which may
be given by the law for the graver offence,
separate sentences for each offence, provided
that in the aggregate the punishment awarded
does not exceed that which may be given for
the graver offence. Reg.*. Tukava Tamana.
L L. Sop. 1 Bom. 314, 1876, F.B-
3. penal Code, f f (02, 103, 414— A-
bricating False Evidence— Voluntarily Assisting
in Concealing Stolen Property— Separate Offe
era-] Where the petitioner was convicted of
having voluntarily assisted in concealing stolei
railway pins in the house and field of a certain
person with a view to having such
person punished as the offender 1 —
Held, that the Magistrate was right in
victing and punishing the petitioner for the
two separate offences of fabricating
dence for use in a judicial proceeding, under
f 193 of the Penal Code, and of voluntarily
nssisting in concealing stolen property, undei
§ 414 of the Penal Code. Empress v. Ramp.
sharRai. Sfiankie, J L L. Bop. 1 All,
878, 1877.
3. Exposure of Child— Culpable Homi-
tide— Penal Code, ff 304, 317— Separate Senien-
era.] Where a mother abandoned her infant
child, with the intention of wholly abandoning
it, and knowing tha.t such abandonment would
be likely to cause its death, and the child died
in consequence of the abandonment
Held, that she could not be convicted and
punished under ( 304 and also under f 317 of
the Penal Code, but under f 304 only. So long
as the child remained alive, the charge under
I 317 of " exposure with intent to abandon "
CONVICTION ON SEVBBAL
CH AKGES - co a Id.
could have been sustained, and had the accused
been tried before the death of the child, for that
offence, she could rightly have been convicted,
and such conviction would have been no
snt of the child's death to a pro-
secution for culpable homicide. But the child
having died before the prosecution of the accus-
ed, the offence under § 317 became absorbed
id merged in the more serious charge under
304 ; and the maxim Nemo debet bis puniri pro
no delicto applied, and separate sentences could
0 more be passed than they could for murder
id wounding with intent to murder, where the
death of the party attacked had taken place, and
the death and wounding involved one and the
ion. Ekprbssv.Banhi. Straight,
I. L. Bop. 3 Alt 848, 1878.
J
COPABCENEB— Pre-emption— No Right of
— as against a.
See Hahomedan Law— Pre-emp-
tion. 1.
LallaNowbutb. Lalla Jaw an...
L L. Bep. 4 Cal. 831.
Unrecorded— Purchase by — at Sale for
Arrears of Revenue— Existing Encum-
brances.
See Act XI. of 1808, f 53.
Ahdool Bari ». Raudas Cook-
DOO...I. L. Bep. 4 CaL 607.
COPT OP JTJDCHKBNT-Time necessary to
obtain — not excluded in computing Period
of Limitation for Leave to appeal to the
Privy Council.
See Limitation. 80.
Narain Das. ..I. L.
Bep. 1 All. 644.
See Lotto™ Patent— Allahabad—
01,10.3.
FAZUI.MuKAUADe.PHUL KuAR.
I. L. Bop. 8 AU. 193.
0OBBB8P0NDENCB — Contract constituted
by.
See Contract. 8.
See Kogietration. 10.
Port Canning Co. e. Smith. ..L.
Bap. 1 I. A. 134 ; L. Bep,
6 P. 0.114.
jAWAHnt Lal e
Diarized by Google
< 8« )
DIGEST OF CASES.
COBBOBOBATION OP AST ACCOM.
FXJCE.
Set Bvidtmce. 9. Sa. 10. 11. 1U. 19.
12a.
CO-BHABEBS OF LAND-Suit by One of
Several— to Eject.
See Eight of Occupancy. 8.
Bollve Sateb v. Akrah Aixv...
I. L. Hep. 4 CaL 961.
Set Co- In am d arm.
Krjshnarav«-.Govind LL,
Hep. 8 Bom. 35, n.
— Suit by One of Several — for Enhancement
of Rent
See Enhancement of Bent. 79.
DoOKGA pROSAn MVTSK V. JOV-
NARAIN HuZRAH.,.1. L. Bep.
S OaL 474.
Balaji «. Gopal I. L. Bep. S
Bom. 38.
See Co-Sharers of Land. 4.
■ ■■' Suit by — in Mahal against Heir of De-
ceased Lambardar for Share of Profits.
See Act XVIII. of 1878, ( 98. a.
Bhikhan Khan v. Ratan Kuar...
L L. Bep. 1 AIL 612,
•— — Suit by— of Mahal for Share of Profits-
Limitation.
See Act XVILL of 1873, { 94.
Bhikhan Khan v. Ratan Kuar...
L L. Bep. 1 AIL 812.
1. Arrangement fat Separate Payment qf
Rent— Separate Suits far Arrears of Rent— Suit
for Kabulaiyat — Enhancement. .] Where it has
been arranged between the co-sharers of an
estate and their tenant, that be shall pay each
co-sharer his proportionate share of the entire
rent, each co-sharer may bring a separate suit
against the tenant for such proportionate share.
In the absence of such an arrangement no
such suit can be maintained.
Such an arrangement may be evidenced
either, by direct proof, or by usage from which
its existence may be presumed, and is perfectly
consistent with the continuance of the original
lease of the entire tenure.
But an arrangement of this nature will not
enable one co-sharer to sue the tenant for a
iabuiaiyat, for a co-sharer who obtains a
kabulaiyat is bound at the request of the tenant
to give him a pottah upon the same terms, and
giit
of a
of the
OF LAND— contd.
the grant and acceptance of a binding I
any separate share cannot e
neously with the original lease of the
The cancellation of the original lease
not to be presumed from the mere fact
separate payment of rent to one or m
co- sharers.
One co-sharer cannot enhance the
share, such an enhancement being
with the continuance of the lease of the entire
tenure. Doorga Prashad Mytse o. Joyna-
rain Hazra I. L. Bep. 4 Cal. 96, 1878,
F.B.
Guni Mahomed*. Mora n... Ibid.
3. Rent paid jointly to Co-Sharers —
Inability of one Co-Sharer to sue for kit Short
separately.'] Where a tenant, who held under
co-sharers, to whom he had been accustomed to
pay his rent jointly, was sued by one of the co-
sharers, the others being made defendants to
tbe suit, and pleaded that he had paid the rent
to bis co-defendants, who admitted the receipt
thereof; — Held, that the suit should bed! missed;
the remedy of the co. sharer who has not re-
ceived his share of the rent is against his co-
sharers, and not against the tenant. Ahahudin
t>. Grish Chunder Shakmut. Jackson, C.J.
(Offg.), and Mariby, J...I. L. Bep. 4 CaL 360,
1878.
8. Suit by one of several— for Separate
Share of Rent— Unpaid Balance of Rent— Par-
ties.'] A co-sharer, alleging that a tenant, in
collusion with the rest of the co-sharers in the
estate, had failed to pay the rent for two years,
brought a suit for the recovery of his share of
t, making the tenant and al|
the colluding shareholders defendants in the
suit. It was admitted that the plaintiff and bis
co-sharers, the pro formt defendants, had
together granted the lease, and had hitherto
jointly received the rent.
Tbe Court of first instance thought there was
sufficient evidence to show collusion between
the first defendant and the pmformi defendants
and held that the suit was maintainable. Tbe
lower Appellate Court held that there was no
proof of collusion ; but was further of opinion
that even if collusion had been established, the
proper remedy was a suit for damages against
the colluding parties, and not for rent ;—
Diarized by Google
( (37 )
DIGEST OF CASES.
CO-SHARERS OF LAND— contd.
Held, that the decision of the lower Appellate
Court was wrong : for that (0— f°Ho wing Daarga
Churn Surma v. Jampa Dassee, 12 B. L. Rep.
3S9 ; 21 W. Rep. 46— a suit by a co-sharer for
arrears of rent which he had heretofore received
in proportion to his share, but which he alleges
now to be withheld by the ryot in collusion with
the other co-sharers who were also made defen.
dants, is maintainable ;— and (1) that a co-sharer
can maintain a suit, to which bis eo.sharers as
well as the tenant are parties defendants, for his
share of the rent, where the amount for which
the suit is brought in fact represents the unpaid
balance of rent, to the whole of which the
plaintiff ishimself entitled. Jadu Dass v. Su-
therland. Jackson, and Tottenham, JJ....L L.
Rep. 4 Oal. 556 ; 3 Oal. Bep. 323, 1878.
4. Suit by Co-Sharers of Land — En-
hanced Sent — Non-Joinder of Parties — Act IX.
of lSjl, ( m.] In a suit to recover rent at an
enhanced rate brought by two of four brothers,
joint and undivided owners of the tenure, the
other two brothers, on an objection taken by the
defendants that they ought to have been parties
to the suit, presented a petition signifying their
assent to the suit. This application, however,
was made after the period of limitation pre-
scribed for such a suit had expired :—
Held, by Ma>iby, ].,— That though _ the rights
of such added parties were absolutely barred,
yet the Court could proceed to adjudicate upon
and declare the rights of the remaining plaint"*-
who had originally filed the suit, and that,
the claim for rent was indivisible, the decreein
their favour should be for the whole amount.
By Prinsep, J.,— That the objection as to
defect of parties after the case had passed through
two Courts, was not one affecting the merits c'
the case so as to be a ground of special appeal.
Semite— i 22 of Act IX. of 1871 does not
apply to cases of joint claims. Bovdohath Bag
v. G ws 11 Chunder Roy.. I. L. Hop, 8 Cal.
26, 1877. Dissented from in I. L. ttep. 6
CaL 815.
See VoL 3 ; Col. 1038.
C 0-BHAREB. IK PATTIDAJU ESTATE
—Right of Pre-emption of.
See Pre-emption. 1. 3.
Naraih Sinoh v. Mvhammeo
FARUCK...I. It. Rep. 1AU.
377.
Fariaho Ali ». Aliii uliah ..I.
L. Sep. 1 All. 873.
C0-8HABEE8 OF PATNI TALUK—
Liability of — Voluntary Payment — Right of
Mortgagee to prevent Sale of Mortgaged Property
for Arrears of Zemindars Rent] Two Out of
certain co-sharers in a patni taluk executed a
mortgage bond with the object of paying off a
quota of the rent due on the eMate. In a suit
brought on the bond, to which all the co-sharera
were defendants ; — Held, that the liability under
the bond, 1
s lirr
had signed the bond, and to such other co-sharers
is were present and might be taken to have
acquiesced in the execution of the bond and in
the contracting of the loan, and for whose benefit
in fact the loan was taken.
The mortgagee of the patni taluk having paid
certain moneys to prevent the sale ot the mort-
gaged property for arrears of zemindar! rent : — ■
Held, that the mortgagee had an interest to
elect j he had not merely a right to recover the
nount of his advance, but held a mortgage to
certain extent over the property, which, in the
■erit of non-payment of the sum advanced,
might have been sold for it; — the payments,
therefore, made by the mortgagee to prevent
sale of the taluk, under the patni sale law,
i not voluntary payments, but constituted a
good charge on the property as against all the
persons interested therein for the amount so
paid ; and it made no difference for this pur-
pose whether the suit on the bond was followed
by a decree as against all the defendants sued,
or against a part of them. In the latter case,
the mortgagee would stand in the same position
as if he had a mortgage of an undefined share of
the property, and that interest would authorize
him to make the payments be did.
The circumstance that a mortgagee has pro-
tected himself by a stipulation in the mortgage
bond, so that the omission to pay the Govern,
ment revenue or the patni rent should not
involve a loss of his advance, will not alter the
mortgagee's position, or make such payments
by him voluntary payments.
Mohesh Chundee Banbrjbb v.
Rah Puksono Chowdry ... I.
L. Rep. 4 Oal. S38, 1878.
See Right to recover Government
Aaaeeament paid during
Wrongful FoMeaaion.
TlLLUCtt CUOMO e. SOUDAMINI
D*si I. lb Bep. 4 Oal.
see.
Diarized by Google
DIGEST OF CASES.
OF PATNI TALUX-
Sce Sale in Execution of Dwim, 17.
Ram Tiluck Sinuh *. Bjsseswar
Lall Sahoo... L. Bep. 3. I.
A. 131.
See Betting aside Bate of Superior
Tenure, Effect of.
Skeenarain Bagchekj. Smith. ..
X. L. Bep. 4 OaL 807.
CO-BHABEB 07 UNDIVIDED ESTATE
— Assignee of— Rights of.
Sir Mortgage. 9.
Byjnath t. Ramoodsen... L.Sep.
1 LA. 100; SI W. Bep.
asa.
Jir Partition by the Beverrae
Authorities.
ShakatCkandsbv.Hubgobindo.
L L. Bep. 4 Cal. 610.
COSTS— Appeal as to.
St* Costa. 1. a.
■ ' - Application under Rule 149 of Com-
mon Law Rules of Supreme Court to
compel Defaulting Client to pay.
See Attorney and Client. 1.
Aba Ismail v. Aba Thara... L Xj.
Bep. 1 Bom. 368.
■^— of Application for Letters of Administra
See Costa. 3.
— Bill of— Limitation.
See Limitation. 67.
Hearw v. Bapu Naikin... ... I. L.
Bep. 1 Bom. 606.
— Bill of— Right to tax after Declining.
See Attorney and Client, a.
MoNOHUR DASV. ROMAKA't'H LAW.
I. L. Bep. 8 Cal. 478.
^— Deposit of— Power to enlarge Time.
See Act vX of 1874, ( 11.
Sookjmukhi Kobe ... I. L. Bep.
3 Cal. 373.
1— — Interest on — Attorney's Right to
See Attorney and Client. 8-
MoNOHUR DOSS «. ROMAHATH...
LL. Bep. 8 Cal. 478.
— Interest on — not mentioned in Decree.
See Interest. 10.
Hahtab Chunder •, Ram Lall
1 L. Bep. 8 OaL 861.
COSTS— amid,
Interest on — cannot be given in Execution,
unless decreed.
See Interest. 6.
Forester «. The Secretary Of
Stats foe India in Council.
L. Bep. 4 I. A. 187 ; I. L-
Bep. 8 Cal. 161.
Interest on — paid under Decree subsequent-
ly reversed.
Set Behind of Costs paid under De-
cree subsequently reversed.
Dobab Ally Khan e. Abdcol
Azeez L L. Bep- 4 Col.
338.
Libel.
See Libel.
Shepherd v. The Trustees or
the Poet of Bombay. ..L L-
Bep. 1 Bom. 477.
Lien for — Solicitor's.
See Mortgage. 88.
BrIJNATH V. JUGGERNATK...L L.
Bep. 4 Cal. 743.
— — Materia] Misstatement in Petition for Spe-
cial Leave to Appeal.
Set Bengal Begulation VXXL of
1810, i 8, ci. a.
Ram Sabuk v. Monmohihi...L.
Bep. 3 L A. 71.
Non-Liability of Stranger to the Record
to— in Absence of Malice and Want of
Probable Cause.
See Champerty. 3.
Ram Coomar v. Chunder Kanto.
L. Bep. 4 L A. 38 ; I L.Bop.
3 OaL 838.
— — As between Party and Party — Pre-emption
Suit— Pleader's Fees.
See Pleader's Fees.
Dbbi Sinoh v. Bhup Singh. ..I. L.
Bep. 1 AIL 700,
■■ Refund of — paid under Decree subsequent-
ly reversed.
Set Behind of Costs paid under De-
cree subsequently reversed.
Dorab Allv Khan v. Abdool
Azeez L L. Bep. 4 OaL,
D.gmzed by G00gle
DIGEST OF CASES.
- Security for— Attorney's Right to contract
for.
See Attorney and Client. 3.
MoNoauR ■ Dass b. Romanautu
Law... I. L. Sep. 8 Cat
478.
- Security for— of Appeal — Poverty no
ground for Ordering.
See Security for Coats. S.
Mahekji*.Goolbai...L L. Rep.
8 Bom. 841.
- Security for — Extending Time.
See Security for Costa. 1.
Haidki Bai e. E.I. Railway Co.
I. L. Bep. 1 All. 687.
- Security for — Practice — Residence.
See Civil Procedure Code, ActX
of 1877, * 390.
Mahomed Shuffi v. La loin Ab-
DULLA...L L. Bep. 8 Bom.
887.
- Security Bond for — Enforcing Bond against
Surety in Execution Proceedings.
See Security Bond,
ClIUTTERDH AKEG V. RAMBELASHEE.
L L. Bep. 3 CaL 318.
- Set-off of— against Mortgage Money.
See Mortgage. 38.
Brijnath v. Jugoernath .XL
Bep. 4 CaL 743.
- Suit for.
See Bight to Sue. 11. 18.
Kabir v. Mahadu...I. L. Bep. 2
Bom. 360.
Pranshankar o. Govindlal...I.
L. Bep. 1 Bom. 467.
- Taxation of— Right of Client to— after Re-
fusal of Offer to tax and seven years'
Delay.
Set Attorney and Client. 8.
MONOHUR DOSS V. RoMONAUTH
Law...L L. Bep. 8 Oal.
478.
- Tender.
See Tender. 3.
Chunmkr CaunT e JODOOXATH...
L L. Bep. 8 Oal. 460.
- Tender amounting to Payment— Cheque in
Payment of Debt.
See Tender. 1.
Boyle Chund Sino *. Maulard.
L L. Bep. 4 Oal. 578.
Wife's — of Appeal in Suit for Divorce.
See Divorce. 3.
Fowls ». Fowls... I. L. Bep. 4
Oal. 260.
1. Mortgagee — Usurious Contract —
Discretion.'] The general rule is that a mort-
gagee is entitled to the costs of enforcing hi*
security, but this not being prescribed by any
express regulation, where the Court, in con-
sideration of his usurious bargain, declines to
award them wholly or in part, the High Court
will not interfere. Carvalho v. Nvrbibi.
West and Pinhiy, JJ...I. L. Bep. 8 Bom. 202,
1879.
2. Special Appeal— Order in Discretion
of Court.'] Where, in a suit for defamation, a
decree was given for the plaintiff for nominal
damages, and the Judge considering the suit
to be a vexatious one, the defendant having
already been convicted and fined on a prosecu-
tion by the plaintiff for the defamation, ordered
the plaintiff to pay the defendant's costs t—
Held, that the order of the Court below as to
costs, was within its discretion and was not
illegal, and therefore that no special appeal
would lie ; the rule laid down by the Full Bench
in Cirdhari Lai Ray v. Sundar Bibi (Bengal L.
Rep., Sup. Vol., 496) being that the High Court
can, in regular appeal, review the exercise of the
discretion of the lower Court as to the award of
costs; but that in Special Appeal the High
Court cannot interefere unless the order made
as to costs was illegal.
In a suit tor defamation, if the Court thinks
that though the words complained of may have
been spoken by the defendant, jet that the
plaintiff is not entitled to damages (he having
already prosecuted the defendant for the defama-
tion), the Court is not bound to award nominal
damages, but may dismiss the suit. Fuvf.r
Parooee v. Moiiender Nath Mozoomdar.
Markby and Hitter, JJ...I. L. Bep. 1 CaL 888,
. 1876.
8. Costs of Application for Letters of
Administration^ An applicant for letters of
administration to the estate of a widow, having
concealed the existence of claims, of which be
was aware, of the relatives of the deceased hus-
band of the widow, on the application being
dismissed, was ordered to pay the costs of the
application, and of the caveats entered by some
by Google
DIGEST OF CASES.
COSTS —contd.
of the relatives of the deceased husband. JAI'
K1SONDAS GoPALDAS T. HARKISONDAS TULLO-
chandas. Green, J..X L. Kep. 2 Bom. 9,
1876,
COTTON- Adulteration of— in Foreign Terri-
tory— Possession of Adulterated— in Bri-
tish Territory — Jurisdiction.
See Bombay Cotton Frauds Act
TO. 1878, S3 8 and 14.
Imps. v. Khinchand Naravan...
I. L. Rep. 3 Bom. i
— Possession of Adulterated.
Set Bombay Cotton Frauds Act
IX. of 1868, | a.
Reg. v. Hanmanh Gavda...I. L.
Bep. 1 Bom. 328.
COUNSEL -Right of— to be heard on a Refer-
ence under \ ao6 of the Criminal Proce-
dure Code.
See Criminal Procedure Code, Act
X. of 1872, % 296.
Reg. «. Dsvaha ... I. L. Bep. 1
Bom. 64.
COTJBT OF CO-OBDINATE JURISDIC-
TION—Injunction to restrain Execution
of Decree by.
See Injunction. 2.
Dhuronidhur Sen v. The Agra
Bank... I. L. Bep. 4 Cal.
380.
COTJBT FBEB— Appeal from Order fixing—
on Plaint.
See Court Fees. 4. 6. 6.
Attachment — Suit to Set Aside.
See Court Fees. 3.
Declaratory Decree, Suit for — Consequen-
tial Relief.
See Court Fees. 1. 10. 1L
- Pauper Suit — Prerogative of Crown.
See Civil Procedure Code, Act
TUX of 1869, § 309, 1. 2.
OuMPDTa Collector op Kanaka.
L L. Bep. 1 Bom. 7.
Gulzari v. Collector op Ba-
M1LLY..X L. Rep. 1 All. BaO.
- Prerogative Right of Crown to Execution
Sale Proceeds of Property of Defendant in
Pauper Suit.
See Prerogative of the Crown.
Collector op Moeadasad*. Hd.
hahhad I, L. Bep. 9
AIL 196.
- On Suit for Declaratory Decree — Conse-
quential Relief.
See Court Fees. 1. 10. 11.
- Probate.
See Court Fees. 8. 9.
In Suit Embracing two or more Distinct
Subjects.
See Court Fees. 7-
Chahaiu Rani v. Ram Dai. ..I.
L. Bep. 1 All. SS2.
On suit to Establish his Right by Person
against whom Order is passed under Act
VIII. of 1859, ( 246.
Set Court Fee*. 11.
CHUN1AV.RAMDIAL..X XB«p.
1 AIL 860.
On Suit to Set aside an Attachment
See Court Fees. 8.
Collector op Thana v. Daoa-
BHAI..X Ir. Bep. 1 Bom.
862.
Valuation of Suit for purposes of — and for
Jurisdiction.
See Jurisdiction. 16. 19. 90.
Kalian*. Nawal,.. I. L. Bep. 1
AIL 630.
Bai Makhor «. BULAKH1..X L.
Bep. 1 Bom. 688,
Kaluc. Vishrah.X X Bep. 1
Bom. 648.
1. On Suit for a Declaration of Right,
'0 tet aside an order under f 346, Act VIII,
J59, disallowing a claim to the property
attached— Act VII. of 1 870, { 8,0. tit., and
Schedule II., Art. if -Consequential Relief.]
Held, that a suit for a declaration of the plaintiffs'
proprietary right to certain property attached in
execution of a decree while in the possession of
the plaintiff, and for the cancelment of the order
of the Court executing the decree, made under (
iifio\ Act VIII. of 1859, disallowing his claim to
'be property, could be brought on a stamp of
by Google
DIGEST OF CASES.
COURT FEES— con td.
Rs. 30; it., Rs. 10 for each claim ; and that it
was not imperative that the Court fee should be
according to the value of property. Gulzari
Hal «. JapaUH RAI. Spaniie And Oldfield, JJ . . .
1. L. Rep. 3 AIL 63, 1878.
3. Act VII. of 1870, , 7, CI. iv.— Revt-
sienbyjudgt of Valuation of Plaint.] Assuming
that the concluding passage in CI. iv. of f 7 of
Act VII. of 1870 is too express to admit of a limi
tation of the Judge's power and leaves him tin
Tight to revise the valuation placed on suits by
a plaintiff under CI. iv., still, generally.
Dot be desirable that the Judge should enhance
the valuation on the reception of the pi;
most cases he could only make a conje
to the value of the relief sought, and would be
quite as likely to be wrong as right. Under
S 7, CI. iv., the fee payable is to be according to
the amount at which the relief sought is valued
in the plaint, and not the value of the subject-
matter of the claim. Monohar Gahesh v- Bawa
Ra mc h aran das. Westropp, C. J., and Melvill, J.
X. I* Bap. 3 Bom. SIB, 1877.
S. C. under 6 and 10.
8. Act VII. of 1870, f f 7-8, CI. viii.—
Suit to set aside an Attachment— Value.] The
meaning of CL viii. of f 7 of Act VII. of 1870 is,
that a person suing to set aside an attachment
on land, shall in no case be called upon to pay a
higher fee than he would have to pay if he were
suing for possession. Accordingly, in a suit to set
aside a summary attachment under | 48 of Bom-
bay Act I. of 1865, placed by the Collector on
land held on a settlement for a period not exceed-
ing 30 years, the value was held to be five times
the assessment, and the stamp duty calculated
upon it, irrespective of the actual market value,
or the amount for which the land was attached.
The Collector or Thana v. Dadabhai
Bomahji. Metvill and Krmball, JJ...I. L. Rep.
1 Bom. 852, 1876.
4. AH VII. of I870, (.12. Appeal.]
Section 13 of the Court Fees' Act VII. of 1870
prohibits appeals on questions relating to valua-
tion for the purposes of determining the amount
of a fee, but does not prevent a Court of Appeal
from determining whether or not consequential
relief is sought in a suit, so that it may determine
under what class of cases the suit falls for
the purpose of the Court Fees Act. Chukia
•>. RamdIAL. Pearson and Turner, JJ I. It.
Bap. 1 AIL 860, 1877.
S. C. under II, infra.
COURT FEES— contd.
8. Ad VII. of 1870, § 11— Appeal
from Order fixing Amount of Court Feet on
Plaint.'] There is no appeal against the order
of the District Judge fixing the amount of the
Court fee payable on the plaint.
The right of appeal to which a plaintiff might
have been entitled under §§31 to 36 of Act
VIII. of 1859 has been taken away by , 13, CI.
i. of Act VII. of 1870. Narrayan Naik ».
The Collector of Thana. Westropp, C.J ,,and
West, J I. L. Bop. 3 Bom. 146, 1877.
6. Act VII. 0/1870, § t J— Appeal from
Order fixing Amount of Court Fees on Plaint.']
Held, following Narrayan v. Collector of Thana
(I. L. Rep. 3 Bom. 145), that unless the question
of the amount of the Court fees properly charge-
able on a plaint be wrongly decided by the Court
of first instance, to the detriment of the revenue,
the decision of the Court is final, and therefore,
where that Court has wrongly decided to the
detriment of the subject only, there is no appeal.
Manouar Ganesh v. Bawa Ramckarandas.
Westropp, C.J., and Melvill, J..X L. Rep. 9
Bom. 219, 1877.
S. C under 3 and 10.
7. Act VII. of 1870, f 17— Multifarious
Suit — " Distinct Subjects " — Plaint — Memoran-
dum of Appeal.] Held (Spaniie, ]., dissenting)
that the words "distinct subjects" in | 17 of Act
VII. of 1870 mean distinct causes of action or
distinct kinds of relief ; it is not enough that the
distinct subjects should be merely separate and
distinct matters embraced in the claim.
Per Spaniie, J. — The words mean every sepa-
rate matter distinctly forming a subject of the
claim. Chahaili Ram?. Ram Dai... X. L. Rep.
1A1L 653, 1878, F. B.
8. Act VII. of 1870, Scked. I..CI. II—
Ad valorem Duty — Probate Duty.] A testator who
died in 1863, appointed y. the executor of his
will, and directed that each of his sons who at-
tained 31 years should be joined with him as
executors. In 1862, J. obtained probate of the will
and paid the only fee then leviable by law, vim.
a commission fee of Rs. to. In 1878, J. died, and
two of the testator's sons applied for probate : —
Held, that an ad valorem duty was chargeable
under Act VII. of 1870, Sched. I., CI. 11, upon
the grant of the probate, on the value of the wt.
administered estate of the testator.
D,„i„.db»Googlc
DIGEST OF CASES.
COURT VEBB—eonld.
In the goods of Chalmers (f> Beng. L. R, Appx.
•37) followed.
/* the Goods of Gum, Garth, C. J.
I. L. Rep. 8 Oal. 783 ; 3 Cal.
Hep. 4S6. 1878.
e. — Act vn.of 1807, Schtd. i„a. 11—
Probate— Ad valorem Foes — Annuity charged on
Testator's Property.'] Where it appeared that
property disposed of by a will was bequeathed
to the testatrix subject to the payment thereout
of an annuity for life to a person who survived
her:—
Held, that the ad valorem fee prescribed by
Sched, I., CI. It of Act Vtl. of 1870 was levi-
able upon the present value of the property, less
the capitalized value of the annuity. In the
Goods of Ru siit 'ON- Garth, C.J. ..I. L. Rep. 8
Oal. 736, 1.878.
10. Act I'll, of 1870, Sched. II., Art. I J,
CI. iii. Declaratory Decree Suit for — Consequen-
tial Relief ".] A suit praying merely for a declara-
tion that the plaintiff is entitled to require the
defendants' to account to him and to permit him
to inspect their books, is simply a suit for a de-
claratory decree, without seeking consequential
relief, and so within Art. 17, CI. iii., of Schedule
II. of Act VII. of 1870.
A suit praying for such a declaration as above,
and also for a positive order in the nature of a
mandatory injunction for the production of the
defendants' books and property in their hands,
a suit for such a declaration as above, and a
positive decree for an account to be taken by
the Court, and for the production of the books
and property, would range under f 7, CI. 4, Art.
(<•), as being a suit to obtain a declaratory de-
cree or order where consequential relief is prayed,
and also under Art. (d) of the same clause,
being a suit to obtain an injunction ; and a suit
of the third species above described would Fall
under Art. (/) of the same clause, as being
suit " for accounts. " Manohar Ganbsh v-
Bawa Rahchakandas. Westropp, C.J., and
Molvill, ] L L.Rep. 2 Bom. 319,1877.
S. C. under 3 and 6.
11. Act VII, of 1870, Sched. II., Art.
17, a. Hi.— Act VIII. 0/1850, % 246— Suit for
Declaratory Decreed] A suit by a pers<
whom an order baa been made under j 246 of
Act VIII. of r859 disallowing his claim to the
attached property for a decree declaring his
right to the property, need not be valued accord -
COTJBT
ng to the value of the property, bat can be
brought on a stamp of Rs. 10, under the Court
Fees' Act VII. of 1S70, Sched. 11., Art. 17, Q
ChtjniA t). RamDIAL. Pearson and Turner,
JJ L L. Rep. 1 AIL 880, 1877.
S. C under 4, supra,
COURT FEES' AOT TIL OF 1870— Can-
not be used to ascertain Value for pur-
pose of Jurisdiction.
See Jurisdiction. IB. 10. 90.
Kalian Das *. Nawal Siwgh ..
L L. Rep. 1 All. 630.
Bai Makiiok «. BULAKKI...L Zh
Rep. 1 Bom. 038.
Kalu v. VtSHBAM...I. L. Rep.
1 Bom. 048.
j 7, CI. iii.— Declaratory Decree — Conse-
quential Relief.
See Court Fee*. 1.
Gulzari Malt. Jadaun Rai .X
L, Rep. 3 AIL 68.
, 7, CI. iv.— Revision by judge of Valua-
tion of Plaint.
See Court Fee*. 3.
Manohar e- Bawa. ..J. L.Rep. 3
Bom. 319.
*7.CLviiL
See Court Fee*. 8.
Collector of Thana v. Dada-
bhai I. It. Rep. 1 Bom.
863.
( 13 — Amendment of Plaint originally for
Declaratory Decree, by paying Fees, for
Ejectment Suit, refused.
See Declaratory Decree. 8.
Chokaungaprkshana Naickirs.
Achiyar..,X. I>. Rep. 1 Mad.
40.
Appeal from Order Fixing Amount of Court
Fees on Plaint.
See Court Fees. 4. 8. 6.
f 16.
See Pauper Bee pendent.
Babaji e. RAJARAU...I. L. Rep. 1
Bom. 7D,
Schedule I., CI. 11.
See Probate Duty. 1.
Ramckahdra Lak$hmanji...X. L.
Rep. 1 Bom. 118.
D.gmzed by G00gle
DIGEST OF CASES.
COURT FEES ACT VII. OF 1870— amid.
Schedule I. , CLn & 12— Exemption from
Probate Duty — Duty paid in England.
See Probate Duty. 2.
Gladstone...!. L. Rep. 1. Oal.
168.
Schedule I., CI. II— Liability of Property
on which Duty has been paid in England
to pay Duty in India.
See Administration. 4,
Murch...I. L.llep. 4 Cat. 79U.
Schedule 1., CI. Il— Probate Duty— Ad-
valorem Duty.
See Court Fees. 8. 9.
Schedule II., Art. 17— Declaratory Decree—
Consequential Relief.
See Court Fees. 1. 10. 11.
COURT OF WARDS— Not bound to take
Charge of Lunatic's Estate — Appointment
of Manager by Civil Court valid.
&«ActXXXV.ofl8BB, f 0.
Manokar Lal v. Gauri Shan-
kak...L L. Rep. 1 AIL 470.
COVENANT NOT TO ALIENATE,
S« Mortgage. 18. 19. 90. 93.
Mul Chandu. Balgobind...I. L.
Rep. 1 AIL 610.
Chunni v. Thakuk Das. ..I. L.
Rep. 1 All. 198.
Ganoa Prasad i, Kusyari Din...
Ibid. 611,
Guunoo Singh e. Latafut Hos-
SAIH...I. L. Rep. SCaL 336.
See Bale in Execution of Decree. 4.
Khubcharo e. Kalian Das... I.
L. Rep. 1 AIL 040.
COVENANT FOR ftUIET ENJOY-
MENT— I m pi icd.
See Darpatni.
Tarachahd v. Ram Go bind...
L.Rep. 4 Oal. 778.
COVENANT RUNNING WITH THE
LAND.
See Registration. 98.
Raju n. Krishnabav.-.X. L. Rep.
9 Bom. 973.
1. Agreement relating to Land — Trans-
fer af the Land.~\ S., being indebted to his wile
'or her dower, by a duly registered instrument
d for himself, his heirs, and successor*,
pay his wife, A., Rs. IS per mensem out of
c income in lieu of dower, and he also cove-
nanted not to alienate the land without stipulat-
ing for the payment of this allowance from
ncome thereof. He subsequently gave a
usufructuary mortgage of the land to £., stipulat-
' ig in the deed of mortgage that the mortgagee
should pay A. Rs. is per mensem out of the
ne of the mortgaged property. L. gave R.
-mortgage of the land, agreeing orally with
R. to continue to pay A. the allowance himself.
Held, that A. was not affected by any arrange-
ent between L. and R- She looked to payment
of her allowance from the income of the land
charged with the burden of paying it, and there-
fore had a claim upon the party who was in
possession of the lands. The sub-mortgagee, R.,
accepting the mortgage from L., must have
been aware of the conditions under which the
latter bad accepted the original mortgage, and
must also have been aware of the lien created by
n favour of his wife, which lien, with or without
:ice, extended to all persons claiming to hold
the lands, to the extent of the amount of the
profits set apart for the benefit of the plaintiff.
AhADi BeguUvAsaRah. Pearson and Spankie,
JJ I. L. Rep- 9 AH 16S, 1878.
COVENANT FOR TITLE.
See Registration. 98.
Raju v. Krishnarav... I. L.Rep.
9 Bom. 978.
CO-WTDOWB— Joint Estate of— Separate En-
joyment of Shares — Survivorship.
See Hindu Law- Inheritance-
Widows. 9.
Ski Gajapathi Nilahani v. Su
Gajapathi Radhamani ... Ii,
Rep. 4 L A. 919; LL
Bep. 1 Mad. 990.
CREDIT IN ACCOUNT.
See Letters Patent— Bo mbay—
(1866), 01. 19. 1.
MULCHAND r- SuGAMCHAND,..!.
L. Sop- 1 Bom. 93.
Digitized byGOO^Ie
( 8M )
DIGEST OF CASES.
( 852 )
CREDITOR— Right of— to apply for Revoca-
tion of Probate.
See Probate. 3.
KOMOL LOCH URN D. NlLRUTTUN...
Z. L. Rep. 4 CaL 360.
CREDITORS OF ALLEGED HEIR OF
TESTATOR-RIGHT OF TO OP-
POSE GRANT OF PROBATE.
See Probate. 8.
Desputtv Singh. ..I. Ii. Rep. 2
Cal. 208.
CREDITORS OF DECEASED UNDI-
VIDED HINDU— Right of— to follow
Estate into the hands of Deceased'
Heirs for his Separate Debts.
See Hindu Law- Undivided Fa-
mily. 8.
Narsinbhat v Chenapa...L L<
Rep. 3 Rom. 476.
CREDITORS OF DECEASED HINDU—
Right of— to follow his Estate into hands
of Purchaser from Heir or Devisee.
See Limitation. 39a.
Greender Ckunder o. Mac-
kintosh...!. L. Rep. 4 Cal.
807.
CREDITORS OF DECEASED HAHO.
MED AN— Right of— to follow Estate
into hands of Purchaser from Heir.
See Hahomedan Law— Right of
Creditor! to follow Eatate
of Debtor into the hand* of
Purchaser from Heir.
Baza vet Hosseino.DooliChund.
I. t. Rep. 4 Cal. 402 ;
L. Rep. SLA. 211.
CRIMINAL BREACH OF TRUST— Not
Compound, ib lc.
See Compounding Offences. 1. 7.
Riiii. o. Lakshnan.-.I. L. Rep.
1 Rom. IDS, a.
Reg. s
. Mad. Reg. VII. of 1817-iri XX. of 1863.]
A complaint against the trustee and manager of
a Hindu temple, of criminal breach of trust in
respect of property belonging to the temple, is
cognizable by the Criminal Court, the ordinary
criminal law not being excluded by Madras
Reg. VII. of 1817 or Act XX. of 1863. Anon.
I. L. Rep. 1 Mad. 06,
1876.
CRIMINAL PROCEEDINGS— Irregulari-
ties in — Waiver by Prisoner.
See Disqualifying Interest of
Judge.
Reg. 3. Bholakath Sen. ..I. L.
Rep. 2 Cat 28.
CRIMINAL PROCEDURE CODE, ACT
XXV. OF 1861, f 319— Limitation to
Suit to recover Property attached under.
See Limitation. 63.
Ajil LANDAU MAL V- PeRIASAMM I...
L L. Rep. 1 Had. 309.
CRIMINAL PROCEDURE CODS, ACT
X. OF 1872, § 4— Sessions Case.
See Sessions Caae.
Empress ». Kanchan Singh. ..I,
L. Rep. 1 AIL 413.
* $6— Appeal by Person convicted by Deputy
Commissioner— High Court.'] Quart-.— Whether,
where a person has been convicted by a Deputy
Commissioner invested with powers under § 36
of Act X. of 1872 and sentenced to a term of
imprisonment requiring under that section to be
confirmed by the Sessions Judge to whom such
Deputy Commissioner is subordinate, and such
sentence has been confirmed accordingly, an
appeal lies to the High Court against such con-
viction and sentence. Empress ». Nadua.
Stuart, C] I. L. Rep. 2 All. 03,1878.
§ tfi — Conviction — Power to commit.'] A
magistrate to whom a case is referred for en-
hancement of punishment under ( 46 of Act X.
of 1872, may order the committal of the convict-
ed person for trial by the Sessions Court. In the
<if Chinnimarigada. Morgan, C.]., Hollo-
■nay and Innes, ]]...!. L. Rep. 1 Mad. 280,
1876.
i JO — Bench of Magistrates— Jurisdiction.
See fast, § 880. 4.
Sufferuddin v. Ibrahim...!. L.
Rep. 3 Cal. 704.
5 $6— Powers of Magistrates — Summary
Jurisdiction— Transfer— Furlough.] The peti-
tioner had been convicted by Mr. Carnegy, the
istant Commissioner of Kamroop, in the
■cise of a summary jurisdiction under S u>
of Act X. of 1872. This officer was, in 1872, ia
charge of the Jorehaut Division in the district of
Seebsaugor, " with first-class powers and powers
under § 222" of the Act. In 1874 he went on
furlough to England, and, on his return in 1875,
posted to the district of Kamroop, and
D.gmzed by GoOgle
{ 353 ) DIGEST OF CASES.
CRIMINAL PROCEDURE CODE, ACT CRIMINAL PROCEDURE COSE, ACT
X. OF 1672— contd. X. OF 1873— amfci
invested with the powers of a Magistrate of the
First Class.
Held, that 5 56 of Act X. of 1873 did not
apply, and that Mr. Carnegy had no summary
jurisdiction in Kamroop.
Per Matkby, J— On the ground that by the
terms in which the Government had conferred
that jurisdiction on Mr. Carnegy, it had in effect
"directed," within the meaning of f 56 of Act
X. of 1872, that he should not exercise that
jurisdiction anywhere but in Seebsaugor.
Per Mitter, J.— On the ground that the office
to which Mr. Carnegy was appointed in Kam-
roop was not equal to or higher than that which
he had held in Seebsaugor.
Quart per Mariby, J.— Whether the posting
of Mr. Carnegy to Kamroop after his return
from furlough, was a transfer from Seebsaugor
within the meaning of f 56 of Act X. of 1872-
In the matter of PvksookaxBoRo/lH. Mariby
•od Hitter, JJ..X L. Hep. 3 Cal. 117, 1878.
764 — Transfer by Judicial Commissioner
from Session to his own Court — Appeal
from Sentence to Special Court at Ran-
goon—Act XVII. of 1875, f 35.
See Jurisdiction. 17.
Empress b. Tsit Ooe L It.
Hop. 4 Cal. 657.
— — 5 64— Transfer of Case— Power of Judge
acting in the English Department.'] An appli-
cation by a Magistrate or Session Judge for the
transfer of a case under j 64 of the Criminal
Procedure Code (Act X. of 1871) should be
made, not by letter to the English Department
of the High Court, but to the Court, sitting in
its judicial capacity by motion supported by
affidavits, or affirmation in the usual way.
Reg. v. Zuhiruodin...I. L. Rep. 1 Cal. 319,
1878, F. B.
t 5 67-— Jurisdiction— Dacoity in the
CaikaTcadi Territory.] Where a dacoity w;
committed at Velanpur, a village in the terr
tory of H. H. the Gailtawad of Baroda, and
part of the stolen property was found where
had been concealed by the accused, in British
territory : —
Held, that a conviction of dacoity could
be sustained, as that was a substantive offence
completed as soon as perpetrated at Velanpur,
although had Velanpur been in British territory
the subsequent acts, in the process of taking
'ay the property, might in the legal sense (as
they would have the same legal character) have
coalesced with the first and principal one, so as
to give jurisdiction, under f 67 of the Criminal
Procedure Code, in each district into which
the property wss conveyed. But it wax held,
that the conviction could be altered to one of
retaining stolen property knowing it to be sto-
len, and the sentences upheld. The retaining is
ncluded in the more comprehensive charge
viewed as an abstract accusation of an act
attended with a certain intent or consciousness,
and the conception of dacoity being independent
of the place where it was committed, suffices to
what is embraced within it, though the
latter was an act done in British territory.
Reg. 0. I.akhva Govind. Westropp, C.J., and
A'. Harridass, J...I. L. Rep. 1 Bom. 50, 1876.
Dissented from in Empress e. S. Moorga
Chettv L L. Rep, S Bom. 338.
See Vol. 3, CoL 780.
2. § 67.— Theft committed in Foreign
Territory—Jurisdiction.'] The accused stole
property in foreign territory and was arrested
with it in his possession in a district in British
territory ; —
Held, that § 67 of Act X. of 1872 did not give
the British Courts of such district jurisdiction to
try him for the theft. Reg. 0- Adivigadu. Hoi-
loway, Innes, and Kindersley, JJ...I. L. Rep. 1
Had. 171, 1878.
f 00 — Village Accountant — Village Mun-
siff's Peon not under.
&<■ Penal Code, { 917.
In the matter of Ramuki Nayar...
I. L. Rep. 1 Had. 366.
1, f go. — Information to Police — Agent
ofOanerofLand.] Per Mariby ,] .—A tharanchi
is not an " agent " within the meaning of § 90 of
the Criminal Procedure Code, Act X. of 1872.
A deiian might be an agent within the meaning
of the Act if his master was absent; but the
section must be strictly constructed, and does
not apply to a demon who was actingonly under
the orders of a resident master.
Per Prinsep, J — As regards { 90, there is con-
siderable force in the argument that although
the commencement of the section refers to an
agent of an owner or occupier of land responsi-
Digitized by G00gle
DIGEST OF CASES.
crehinai. procedure code, act cbxhtnal procedure code, act
X OF 1872- contd. X. OF 1872— contd.
ble (or giving information to a Magistrate, when
it comes to declare the nature of that informa-
tion, the terms of the first three clauses seem to
exclude that class, referring only to the other
classes- It would seem either that this was an
accidental omission of the Legislature, or that
the Legislature expressly intended that an agent
is responsible only for giving information re-
garding the last clause, vi*., of the occurrence of
any sudden or unnatural death. Empress v.
Achiraj Lall L L. Rep. 4 0*1. 603 ;
80*1, Bep. 87, 1878.
2. i go. — Omission to give Information to
the Polict of Offence,] The provisions of f 90 of
the Criminal Procedure Code (Act X. of 1872)
andf 176 of the Penal Code ought not to be
used for purposes of vexation, but in order to
secure due information to Magistrates and the
Police, of offences committed within their juris-
diction. Provided that information is conveyed
to the nearest Magistrate or Police officer by one
of the parties bound to give such information, it
is not reasonable that every other person who
may possibly be bound to give information
should be prosecuted for not having done so.
Where, therefore, information of a theft had been
given to the police by a gomastah, and a punch
of the village, a conviction of another gomastah
(who had not obtained information thereof him.
self till after it had been reported to the police),
under ( 176 of the Penal Code, was set aside.
Empress e. Sashi Bhusan Chuckrabuttey.
Ainslie and Broagkton, JJ...X. L. Rep. 4 Cal.
623, 1678.
S 123— Confession defectively recorded—
Secondary Evidence of.
Set Evidence. 13. 14.
Reg. v. Shiwa...L L. Rep. 1
Bom. 218.
Empress v. Mannoo Ta moo lee...
I. L. Rep. 4 Cal. 696.
1. { 122— Paver of a Magistrate to re-
tard a Statement of a Person not accused of an
Offence.} Section 122 of the Code of Criminal
Procedure (Act X. of 1872) authorizes a Magis-
trate to record the statement of a person who
appears before him as a witness, as well as the
confession of an accused person. In the former
case the statement must be recorded in the
manner prescribed for recording evidence, i.e.,
on oath or affirmation, and in the latter case in
the manner prescribed by ft 345 and 346 of the
Code, without oath or affirmation. Impx. *.
Malka. Sembalt Aad Pinhey, ]]...!. L. Bap.
2 Bom. 043, 1878.
2. § 122. — Confession — Magistrate, —
Evidence— Act I. 0/1862, § 1.] Where a Magis-
trate in talcing the confession of a prisoner
under f 122 of the Criminal Procedure Code
(Act X. of 1872) omits to take it in writing
with the formalities prescribed by j 346 of that
Code, such confession is not absolutely inad-
missible in evidence. Evidence may be taken
to show tbat such a confession had been duly
recorded, though the Magistrate's procedure
had been irregular,
Reg. v. Shivya and others (I. L. Rep. I Bom.
219) dissented from. A village Munsiff in the
Madras Presidency is a "Magistrate" within
the meaning of f 26 of the Evidence Act I,
of 1872.
The word "include" in CI. 13 and other
clauses of jj I of Act I. of 1868 is intended to be
enumerative and not exhaustive. Empress o.
Rahanjiva. Innes and Forbes, J J... I. L. Rep.
2 Mad. 0, 1878.
§§ '33 an(l 13S— Inquiry by Magistrate
into Cause of Death — not a judicial Pro-
ceeding.
Sec Report of Magistrate.
Trovlokanath v. Rah Churn ...
L L, Bep. 8 Cal. 742.
{ 142 — Discharge — Rev i vial of Prosecution.
&v Revival of Prosecution. 6.
Impx. v. Gowdapa X. L- Bep.
2 Bom, 534.
1. f 142. — Sanctionto prosecute— Power
of the District Magistrate to proceed where Pro-
secutor has not availed himself ef Sanction,
—Amendment of Charge.'] Where sanction has
been given under f 468 of Act X. of 1872 by a
Deputy Magistrate to a person to prosecute an-
other under | 211 of the Penal Code, for bringing
false charge, and such sanction is not proceed-
ed under, it is open to the District Magistrate
to take up the case under ( 142 without com-
Diaxized by Google
I 387 ) DIGEST OF CASES.
COUMnTAl PBOCBDTTOK CODE, ACT CRTJfCINAI. PROCEDURE CODE, ACT
X. OP 1878— amid. X OP 1878— contd.
Such sanction would authorise the District
Magistrate to frame a charge under £ 19* of
the Penal Code. Empress o. Ni PC ha. Jackson
and Tottenham, JJ I. L. B»p. 4 CaL 712,
1878.
1.— S I57-— Extradition,— Warrant.'} It
n not essential to the validity of a
issued under ( 1 57 of the Criminal Procedure
Code (Act X. of 187a) that the Magistrate
issuing it should be, at the time he issues it,
within the local limits of his jurisdiction. He
may issue such warrant from foreign territory.
Rbo. v. Locha Kala L I.. Bap. 1 Bom.
340.
, 1S8.
See Compounding Offence*. S. 6.
Reg. o. Devama...I. L. Sep. 1
Bom. 64.
Reg. 0. Rahthat.,,1. L. Rep. 1
Bom. 147.
195— Discharge — Fresh Evidence. '
Set Revival of Prosecution, 9.
Empress 11. Hurrt Dayal...L L.
Bop. 4 Oal. 16.
§209.
See Compensation.
In re Keshav L L. B«p. 1
Bom. 175.
giro.
See Compounding Offences. 6.
Reg *. Rahimat I. L. B«p. 1
Bom. 147.
In
See Revival of Prosecution. 6.
Impx. v. Gowdapa...L Ii. Bep.
3 Bom. S34.
- f 315 — Discbarge by Subordinate Magis-
trate— Case triable by Magistrate only-
Course for District Magistrate to pursue.
See Criminal Procedure Code, Act
X. of 1872, i 380.
- — I 310— Complainant — Withdrawal.}
cases of contempt of the lawful authority of a
public servant, the complainant spoken of in
) 210 of the Criminal Procedure Code (Act X.
of 1872) is the public servant whose authority
has been resisted, and without whose sanction
no proceeding could be instituted, and not the
person injured through the resistance. There-
fore to make the withdrawal of the complaint
of such offence legal, it must be based
application alone of the Court or authority
sanctioning the proceedings. In re Muss Ali
Adam I. L. Bep. 2 Bom. 663.
§"5-
See Compounding Offences, 0.
Rao. *. Devama...I. L- Bep. 1
Bom. 64.
1. 5 315. — Evidence for Prosecution.]
A Magistrate is bound, before he discharges an
:used person under { 215 of the Criminal
Procedure Code, Act X. of 1871, to examine all
the witnesses for the prosecution, and should
.ot refuse to examine witnesses simply because
heir evidence will be to the same effect as that
dready taken for the prosecution. Emprrss v.
Hematulla. Jackson and Cunningham,}]...
I. L. Bep. 3 Col. 389, 1878.
A. f 215. — Examination 0/ Witnesses for
Prosecution — Discharge of Accused.] Before a
Magistrate discharges an accused person under
f 315 of the Criminal Procedure Code, Act X-
of 1873, he is bound, under that section, to exa-
mine all the witnesses named for the prosecution.
Empress v. HimatuU* (I. L. Rep, 3 Cal. 389.)
followed. Empress v. Kashi. Straight,}...!.
L. Bep. S All. 447, 1879.
-J 318— Right of Accused to recall and
cross-examine Witnesses for Prosecution. ,
See Practice- Criminal 1.
Emprbss V. BaLDEO SAHAJ...I. I".
Bep. 3 AIL 303.
-) 320.
See Conviction on several Charges.
ff 220, 221— Practice— Committal for Trial
after Charge has been drawn up.] Section 321
of the Criminal Procedure Code (Act X. of 1873)
authorizes a Magistrate, although a charge may
have been drawn up, to stop further proceedings
and commit for trial : for this purpose ( 331 may
be regarded as a proviso to * 220.
D.gmzed by G00gle
DIGEST OF CASES.
CEnaiWAL PROCEDURE CODE, ACT CEUHHTAI. PROCEDURE CODE, ACT
X OF 1872—ctmtd. X OF 1872— amid.
Though the explanation to § 220 pi
if a charge has been drawn up, tli
must be either convicted or acquitted, it does
not require that the conviction or acquittal
should be by the Magistrate who drew it. ~~
PRESS v. Kl-dkutoolah. Jackson and Cun
ham, JJ...I. L. Rep. 8 Cal. 486; 3 Oal. Rep.
3, 1878.
i 322— Act XXI. of 1856, 5 4.9-Ofi
punishable with Finland Confiscation — Summ
Trial.'] An offence under f 4g of Act XXI. of
1856, can be tried summarily by a Magistrate
under f z%2 of the Criminal Procedure Code,
Act X. of 1872.
The confiscation, which is provided for by
% 49, is merely a consequence of the conviction,
and does not form part of the puoishment for the
Khetter Mohun Ckowrunghee (22 W. Rep., Cr,
Rul. 43) and Judoonath Shako. (2] W. Rep. Cr
Rul. 33) overruled. Empress b. Baidanat*
Das I. L. Bop. 3 Cat 308; 1 Cal.
B«p. 443, 1876, F. B.
See 3 Bom. H. 0. Sep., Or, Ca. 13.
14.
§ 228— Record in Appealable Case— Sub-
tan ce of Evidence.
See Summary Trial.
Empress v. Karan Singh. ..X. L,
Rep. 1 AIL 680.
S 231— Power of Sessions Court to commit
to itself Case not triable exclusively by
Court of Sessions.
Set Jurisdiction. 16.
Empress v. Futteh Tyabkhan...
I. L. Sep. 4 Cal. 700.
S 263— Appeal against an Acquittal by a
J<iry.
See Appeal— Criminal. 3.
Ia-ex. v- Hart I. L. Bep. 3
Bom. 528.
1. } 263.-7™: by Jury—Acquittal—
Verdict reversed.] On a reference by a Session
Judge under § 263 of the Criminal Procedure
Code (Act X. of 1872), the whole case is opened
up, and the functions of both Judge and Jury are
cast upon the High Court, and this differentiates
the position of the High Court very widely from
that of the superior Courts in England, in deal-
ing with cases which come before them in the
exercise of their function of reviewing matters
disposed of by subordinate Courts.
But, notwithstanding this difference, and the
more onerous duties devolving in consequence
on it, the High Court will be guided, as far as
may be, by the analogies of English law. It is
a well* recognized principle that the Courts in
England will not set aside the verdict of a jury,
unless it is perverse, and patently wrong, or may
have been induced by an error of the Judge,
To this principle the High Court will adhere
generally, but in a proper case will rectify the
verdict of a jury. Reg. 11. Khandeeau Bajirav,
West and N. Harridass, JJ...1. Ii. Rep. 1 Bom
10, 1875.
3. § 263.— Dissent of Court from Verdict
of J<"y-] The " dissent " referred to in CI. 4 of
§263 of the Criminal Procedure Code (Act X. of
1872) must be such acompletedissent as to lead
the Judge to consider it necessary for the ends
of justice to submit the case to the High Court.
lupx.c. BhawANiBaNdujI. Westropp, C.J. , and
MHviU,] LL.Eep.3Bom. 83B, 1878.
3. § 263.— Power of High Court— Ac-
quittal by Jury.] Where the jury acquitted the
prisoners on the charges framed, but found cer-
n facts which amounted to another offence, and
litted to convict the prisoners of that offence,
they had the power to do under i 457 of the
Criminal Procedure Code : —
field, that the High Court could, on the case
ming before it under f 263 of that Code, find
the prisoners guilty of that offence. Empress
Harai Mirdha. Markby and Milter, JJ...L
L. Bep. 8 Cal. 186, 1877.
4. } 263.— Verdict — Disagreement
among Jurors— Dissent of Judge from Verdict—
if High Court.] Where a jury are not un.
is, and the Sessions Judge dissents from
the verdict of acquittal, it is his duty, on referring
the case to the High Court under § 263 of the
Criminal Procedure Code, Act X. of 1872, to
state his opinion as tothe exact offence of which
he considers the prisoner is guilty. Where a
jury are not unanimous in their finding, and the
Sessions Judge dissents from the verdict of the
majority, the High Court, on the case being re-
ferred under j 263 of Act X. of 1872, is compo-
und the prisoner guilty, notwithstanding
that the verdict of the majority was a verdict of
DiQitized by Google
DIGEST OF CASES.
CRIMINAL PROCEDURE CODE, ACT CRIMINAL PROCEDURE CODE, ACT
X. OF 1872- -contd. X. OF 1872— contd.
acquittal. Empress v. Sah as Ras. Markby and
Prinsrp, JJ...L L. Rep. 3 CaL 623 ; 2 Cal.
Rep. 304, 187a
S. C. under Grievous Hurt.
| 271 — Appeal, Arrest Pending.
Set Appeal— Criminal. 6. 7.
' Appeal, Limitation.
See Appeal— Criminal. 0.
— — Appeal, Officer appointed to prefer.
See Appeal— Criminal. 4.
( 280,
Bee Enhancement of Sen twice.
Anon L L.Rep, 1 Mad. 84.
— ( aS&Seference—Poner of High Court to
alter Finding.] The High Court as a Court ol
reference has no power under S aSS to alter a
conviction of murder into one of culpable homi-
cide not amounting; to murder, but only to order
a new trial, unless there ha? been a petition of
appeal, in which case, the Court being a Court
of appeal as well as of reference, could alter the
Ending of the Sessions Court. Where the priso-
ners were tried on two charges of murder and
culpable homicide not amounting to murder, and
• the opinion of the assessors had been taken on
both charges, but the Sessions Judge recorded a
conviction and sentence for murder only, the High
Court being of opinion, on a reference under
i 287, that the offence proved amounted only to
culpable homicide not amounting to murder, did
not order a trial de novo, but directed the Ses-
On the charge of culpable homicide not amount-
ing to murder. Reg. p. Balapa Dundapa. Mei-
vili and Kemball, JJ L X.. Rep. 1 Bom.
838, 1877.
— — ( i 294 and 397 — Revision — Power of High
Court — " Material Error,"'] In a case of appre.
bended breach of the peace, the Magistrate
bound over the parties in sums amounting in
^e aggregate to Rs. 60,000 or upwards. The
High Court quashed the order, holding it to be
altogether unreasonable.
Per Markby, J. — Notwithstanding the very
general words of f { 294 and 297 of Act X. of
1871, the Court ought not, in the exercise of the
powers conferred by Chapter XXII. of that Act,
to gu into evidence and examine the conclusions
of the Court below upon the facts. Still the
High Court is not precluded from interfering
!, in cases requiring the exercise of discre*
nun, it appears an the face of the proceedings
that the Magistrate has exercised no discretion
at all, or has exercised his discretion in a manner
-vholly unreasonable.
Per Hitter, J. — The words " material error" in
(»97ofActX. of 1872 mean any error appearing
on the face of a judicial proceeding resulting in
t order. In the matter of Juggut
Chunder Chukkbrbutty.,.1, L. Rep. 2 Cat
110, 1876.
{ 395— Discharge by Subordinate Magis-
trate^— Course- to be pursued by District
Magistrate.
See Revival of Prosecution. 6.
Ihfx. e- Gowdapa-.I. L. Rep. 2
' Bom. 684.
fr 29S— Discharge — Sessions Case.
See Revival of Prosecution. 2.
Empress *, Harry Doval...L L.
Rep, 4. CaL 16.
— fi 29S-296 — Improper Discharge of Accu-
sed Persons— Course to be pursued by
District Magistrate.
See .Revival of Prosecution. 1
8. a
- WotttsH Mistree.-I. L, Rep. 1
Cftl 383.
Empress v. Donnelly I. L.
Rep. 2 Cal. 400,
Empress e. Harry Doyal Karmo-
KAR...I.L.Rep.4 CaL 18.
5 295 — Discharge by Subordinate Magis-
trate— Course to be pursued by District Magis-
trate.'] The District Magistrate has no power
to remand a case (triable by a Magistrate only)
to a Subordinate Magistrate for retrial after the
latter has discharged the accused under f 215 of
the Criminal Procedure Code; the courses open
to him are— (1) to take a fresh complaint on the
ground of there being further evidence procu-
rable which was not before the Court when the
order of discharge was given (and on this ground
only) ; or, (2) if there be no such additional evi-
dence procurable, to report the case for the
orders of the High Court under § 296 of Act X.
of 1872. In the matter of the Petition of Dija.
HUB Dun. Ansliennd Bronghton, JJ X, L,
Rap. 4 Cal. 647, 1878.
Digitized byGOO^Ie
{ S6S ) DIGEST OF CASES.
QBUCTAIi FBOCEDUBE CODE, ACT OBIKIMAL PROCEDURE CODS, AOT
X. OF 1872- -amtd. X OF 1872- -amid.
— i ago" — Discharge by Subordinate Magis-
trate of Case triable by Magistrate —
Course to be pursued by District Magis-
Ste Revival Of Prosecution. 1. 2. 8.
4.0.
§ 396— Power of Higb Court to call for
Report of Magistrate embodying Result
of Inquiry into Cause of Death under
t'3S-
See Report of Magistrate.
Troylokanath v. Ram Churn...
I. L. Bop, 8 Cal. 742-
S 296— Sessions Case.
See Sessions Case.
Empress e. Kanchan SlKGH.,.1.
L. Sep. 1 All. 413.
— — § 396— Counsel— Right of, to be heard.']
Counsel cannot claim as of right to be heard on
a reference to the High Court under J 296 of
the Criminal Procedure Code. Reg. v. Devam a.
West and N. Harridas, JJ...I. L. Bep. 1 Bom.
64, 187S.
■ — J 397 — Acquittal without ashing Assessors'
Opinion — No Ground for Revision.
Naraih DA5...I. L, Bep. 1 AIL
610.
■ § 297 — "Judicial Proceeding" — Revision.
Set Judicial Proceeding. 1.
See Criminal Procedure Code, Act
Z, of 1873, g§ 415 to 410. 3.
5 297 — Right of Private Prosecutor to apply
(or Revision of Acquittal.
See in the matter of the Petition of Na-
rain Das I. L. Bep. 1 AIL
610.
And 5M in/*", 1.3. 9.
1. §397— Acquittals- Penerof Revision
•f High Court.] Held by Pearson and OldJUld,
]]., that an acquittal does not preclude revision
by the Higb Court under f 397 of the Criminal
Procedure Code (Act X. of 1S73). That se
authorizes the Higb Court to order the new
of a person who has been acquitted by re
of some material error in a judicial proceeding
of a subordinate Court.
Turner, J. — Where there has been an ac-
quittal on tbe merits, where an accused person
«en acquitted because the Court by which
he has been tried holds the evidence insufficient
prove his guilt beyond reasonable doubt, the
High Court cannot interfere as a Court of Revi-
But where the acquittal has been brought
about by such a material error in the proceeding
makes the proceeding bad in law, it is com-
petent for the High Court to interfere. If the
facts found by the Subordinate Court constituted
the offence charged, and, through error of law,
the Subordinate Court held that they did not
constitute the offence, and therefore acquitted the
accused ; or the if the Subordinate Court impro-
perly excluded relevant evidence, and conse-
quently acquitted the accused, in both those
cases, the High Court would have power to
interfere as a Court of Revision.
is competent to the High Court to allow a
private person to move it to exercise its powers
under § 297.
By Spaniie, J.— The Higb Court has no power
revise an order of acquittal on the facts found
1 the evidence. Any revision must proceed
on tbe ground of material error in law in the -
proceedings, e.g., some error or defect, either in
the charge, or in the proceedings on or before
the trial, on account of the improper admission
r rejection of evidence whereby there has been
failure of justice affecting the due conduct of
the prosecution.
By Stuart, C.j — A private prosecutor, who
in show on the face of his petition a proper
ise for revision of a judgment of acquittal is
entitled to have it entertained under § 297 of the
Criminal Procedure Code, and a petition stating
that the facts as found by tbe Court acquitting;
the accused, were sufficient to convict, discloses
a proper case for revision, and one which enti-
tles the petitioner to have the record of the trial
in the Subordinate Court sent for, with a view
to the consideration of the question whether a
new trial should be ordered,— the High Court
having the power to make such an order.
The first part of j 297 is not merely intro-
ductory to tbe particular enactments which
follow, but is, on the contrary, a substantive and
complete enactment in itself, without any ne-
cessary reference to the clauses which follow ;
and the powers thus gives to tbe Higb Costt
D.gmzed by GOOglC
DIGEST OF CASES. < 866 )
rammjAL procedure code, act criminal procedure code, aot
X. OP 187a-w»W. X. OP 1878— oontd.
are large and full, if not unlimited. /« tie mat
ter f/H*RDBO...L L. Rep. 1 AIL 180, 1876
S. § 297. — Judicial Proceeding — Arrest
fending Appeal — Order of Sessions Judge ad-
mitting to Bail—Power of High Court.'] An
appeal having been preferred by the Govern-
ment against an acquittal, an order was made
by the High Court calling for the record. The
officer whose duty it was to issue the precept
misapprehending the effect of the order, issued
notices to the Magistrate of the District that
the appeal had been admitted, and would be
heard on day a named. The persons who had
been acquitted were arrested and sent to the
Magistrate of the District, who ordered their
detention until the decision of the appeal. On
an application made to the Sessions Court, that
Court referred the case, under f 20.6 of the
Criminal Procedure Code, for the orders of the
High Court, and in the mean time admitted
the accused to bail under 230 of the Code :—
Held per Tamer, C.J. (Oflg.), and Pearson, J
— That the order of the Magistrate directing tin
detention of the accused, not being a judicial
proceeding, the High Court had no power under
f 297 of the Criminal Procedure Code, Act X.
of 1872, to set it aside.
Per Pearson, J.— The case was not one which
could properly he reported by the Sessi
Judge under f 296 of the Code ; nor could that
officer properly admit the accused to bail under
i 53°- But the order made by him under that
section could not be set aside as null for want
of jurisdiction, not being a judicial proceeding
within the terms of the definition contained
the law.
Held by Spmkie and OtdftOd, JJ._- That the
Magistrate's proceedings were judicial proceed-
ings, and therefore that the High Court had
power to set aside his order, which was illegal
under f 397 of the Criminal Procedure Code, that
section applying to interlocutory orders, and
being confined to orders in cases finally disposed
of. Rao. o. Gholam Ismail.,, L L. Rep. 1A1L
1,1879.
3. — 5 397-— Revision— Powtr of High
Court.'] In the course of a serious riot, one S.
was killed by a shot of a gun. The first prisoner
and others were charged with murder. The
first prisoner alleged that he bad fired the shot-
but in self-defence, and his statement was believ-
ed by the Judge, who acquitted him.
The widow of the deceased presented a peti-
tion to the High Court to exercise its powers of
Held, tstly, that the High Court may exercise
its powers of revision upon information in what-
ever way received, and consequently on the
petition, as in the present case, of a person occu-
pying the position of complainant ;
zndly, That it was not intended by the Legis-
lature that the powers given by CI, I, J 297,
should be exercised only in the particular in-
stances of error and in the particular manner
given in the succeeding clauses, which are mere-
ly intended to show the particular course which
may be taken in those particular instances of
ydly, that it is not a ground for revision by
the High Court that all the evidence which the
prosecution might have brought before the
Session Judge, was not brought before him ;
4ihly, that the words " material error" in
(297 cannot be held to include error in the ap-
preciation of evidence, In the matter of Auho-
kiam. Innes.C.}. (Offg.), Uurtusami Ayyar, J.
I. L. Rep. 9 Mad. 88, 1878.
4. i 297. — Evidence.] On an applica-
tion to the High Court under ( 297 of Act X. of
1872 by a person who has been convicted by a
Magistrate, the High Court will not go into the
evidence. Empress v. Donnelv. Marhby and
Prinsefi, JJ L L. Rep. 8 CaL 405, 1877.
S. C. under Revival of Prosecution. 3.
And Evidence. 32.
See 8, infra,
5. §297. — Acquittal — Revision.] Where
an officiating Magistrate, being of opinion that
an accused, prosecuted under § 29 of Act XVI II.
of 1869, had been improperly acquitted, referred
ase to the High Court, the High Court
{Ainslieaxii Morris,]].) said, " unless the Go-
-nent sees fit to appeal against the acquittal
under § 272 of the Criminal Procedure Code,
this Court cannot interferfere in any way. EM-
PRESS V. DWARKANATH CHOWDHRY... I. L.RGp.
8 CaL 880, 401, 1877.
1. — f 207.— Improper Acquittal— Appeal .
by Government.] The Magistrate of the district,
thinking that certain accused persons had been
Diaxized by Google
DIGEST OF CASES.
CRIMINAL PROCEDTJRE CODE, ACT CHIMTNAL PROCEDURE CODE, ACT
X OF 1878— ronW. X. OF 1872— contd.
improperly acquitted by a Subordinate Magis-
trate referred the case to the High Court, being
of opinion that though § 297 of the Criminal
Procedure Code did not mention orders of ac-
quittal as coming under the revision of the High
Court, still the High Court would, for good and
sufficient reason, reverse an order of acquittal: —
Held, that as under the Criminal Procedure
Code, provision is made for an appeal by Go-
vernment in cases of improper acquittal, and
f 297 white expressly giving power to the High
Court to correct errors in cases of improper
discharge, conviction and sentence, says nothing
of improper acquittal, the intention of the
Legislature was, that there should be no inter-
ference with an acquittal, except on a formal
appeal by Government. Empress v. Mivaji
Ahmed. West and Pinhey, ]] ...I. L. Bep. 8
Bom. 150, 1878.
7. ■ J 297. — Order of Division Bench to
Magistral! to hold Inqviry — Conviction — Refer-
ence for Confirmation of Sentence of Death—
Review.'] A Division Court of the High Court
at Allahabad ordered a Magistrate who had
refused to inquire into a charge of murder on
the ground that he had no jurisdiction, to
do so, considering that the Magistrate had
jurisdiction. The Magistrate inquired into the
case and committed the accused for trial to the
Sessions Judge, who convicted, and sentenced
the accused to death. The proceedings of the
Session Court being referred to the High Court
for confirmation of the sentence, the case came
before the Full Court :—
Held, per Stuart, C.J., Spaniie and Oldfitld,
JJ., that in determining whether such sentence
should be confirmed, the full Court was not pre-
cluded by the order of the Division Court from
considering whether the accused person had
been convicted by a Court of competent juris-
diction, but that it was incumbent on, and was
the absolute duty of, the full Court to satisfy
itself that the sentence was one which could
legally be passed by the Session Judge. Em-
press v. Sarmukh Singh... I. L. Rep. 3 All.
218, 1879.
S. C. under Offence committed St
Cyprus.
8. — i 297.— Powers of High Court as
Court of Revision — Material Error — Great Laxity
in Weighing Evidence. ] The appellant had been
convicted on the 37th April 1875, with five
other persons, of the offence of daeoity, and
sentenced to transportation for life. The five
other persons appealed and were acquitted and
released. The accused did not appeal, and was
sent to the Andaman Islands, from whence he
forwarded his petition of appeal to the High
Court in May 1679, urging that through want of
funds and friends he could not appeal before.
The appeal was heard by Spankie, J., who had
heard and decided the appeals of the other five
persons- His Lordship in giving judgment
said 1—" The period of limitation (for the appeal)
has so long expired, and the explanation of the
delay in appealing, though there may be some
truth in it, is not altogether satisfactory, that 1
feel compelled to disallow the appeal. It is the
case that all convicts have a right of appeal
once, but that right is subject to a law of limi-
tation, and I think it would be unwise to apply
f 5 of this taw so as to encourage the idea
among the convicts of a penal settlement that
they can at any time, as in this case, five years
after the date of their conviction, appeal to this
Court. At the same time, being well acquainted
with the facts of the case, as I decided the appeal
of the five Other persons who had been trans-
ported for life, I am quite prepared to admit the
petition as one for revision of the proceedings."
His Lordship then stated thatthe petitioner's case
was on alt fours with that of the five other per-
sons, and that the reasons, which influenced his
decision respecting them, led him to say that
there was no satisfactory evidence to justify the
conviction of the petitioner, — and continued —
" I can only attribute my not having done so"
(■«'«., considered the case of the petitioner as a
Court of Revision — on the occasion of the appeal
of the five other convicts) " to the uncertainty
which prevailed in this respect as to whether the
Court was at liberty to interfere with the convic-
tion of a prisoner who had not appealed, (when
dealing with the case of a person tried with him
who had appealed) simply on a question of
credibility of evidence. Later decisions both of
this and of other Courts, for years past, have not
tended to remove this uncertainty as to what is
or is not a material error in a judicial proceed-
ing. I am myself inclined — indeed, I have
acted in other cases in this view — to regard
great laxity in weighing and testing evidence
as a material error in a judicial proceeding;
D.gmzed by G00gle
DIGEST OF CASES.
CBMINAL PROCEDURE CODE, ACT
X. OF 187B— ccntd.
and looking at the trial in this case, it would
■eem to me that there had been great indiffer-
ence and laxity on the part of the Session*
Judge in this respect. Accepting, however, the
judgment of this Court in Full Bench in the
nutter of Harden (I. L. Rep. I All. 139), 1
believe that I have the power of interfering 1
with the conviction of the petitioner. If we
not precluded by a judgment of acquittal from
exercising the powers of revision under J 297
of Act X. of 1871, we cannot be precluded from
doing so where there has been a conviction on
evidence which has received no sifting, and
which in many respects is so transparently false,
that if it had been at all tested, its falsehood
could not have escaped notice. Being of
opinion that I have the power of revisio
this case, — in which opinion my honourable
colleagues, to whom the papers have been
circulated, acquiesce,— I annul the conviction
and sentence and direct the release of " the
petitioner." Emfbsss v. Mijru.,..I. L. Rop.
3 All. 336.
9. § 397.— Revision— Right of Privalr
Pnnttutor.'] A private prosecutor can move th
High Court, in the case of an acquittal by .
Sessions judge, to exercise its powers of revi
sion, under ( 297 of Act X. of 1873, on th
ground of material error in law, or procedure i
the proceedings of the Sessions Judge, but not
on questions of fact purely. In the matter of
Sukhoo. Durga Prasad. Straight,].,.!. L,
Rep. 3 All. -148, 1870.
10. — — ( 297- -Court of AppeaL] Where
there is a Court of Appeal to which resort can
be had, resort to the High Court as a Court
of revision is premature, and it has been the
practice of the Court not to interfere in revision
when the petitioner has neglected to avail him-
self of the ordinary channel of relief below. Per
Spankie, J., in Empress v. Nilambar Bahu...I.
L. Hop. 8 AIL 876.
S. C. under Judicial Proceeding, and
Order for Diapoaition of
Property alleged to be
■tola*.
1.— i yog.— Penal Cede, , 160— Sentence
Imprisonment in Default of Payment ef Fine.]
The proper construction of the final clause of
f 309 of Act X. of 1873 is, that if imprisonment
and Rue, and further imprisonment in default
CRIMINAL PROCEDURE CODS, ACT
X. OF 1878 -con W.
of payment of the fine, is the sentence, the
imprisonment in default cannot exceed one-
fourth of the period of imprisonment which the
Magistrate is competent to inflict for the
offence ; but if the sentence is fine only, the
imprisonment in default of payment may be the
whole period of imprisonment which the Magis-
trate is competent to inflict for the offence.
Where, therefore, prisoners convicted under
§ 160 of the Penal Code were sentenced to pay
a fine of Rs. 25 each, or in default to be rigorous-
ly imprisoned for 30 days, the full term of
imprisonment under that section -.—Held, that
the sentence was legal. Rbc. v. Muhammad
Saib. Kindenley, J., dissenting I. L. Rep.
1 Had. 877, 1877, P. B.
8. i 309.— Imprisonment in Default
of Payment of Fine— Act VIII. of 1873, J 70—
Penal Code, §§ 64, 65.] The 309th Section of
the Criminal Procedure Code, Act X. of 1872,
makes ( t 64 and 65 of the Penal Code applica-
ble not only to offences ' punishable under the
Penal Code, but to offences punishable under any
law in force for the time being, and therefore to
offences punishable under Act VIII. of 1873.
The provisions of that section do not extend the
period of imprisonment which may be awarded
under the provisions of § 6 j of the Penal Code,
but only regulate the proceedings of Magistrates
whose powers are limited.
In the case of an offence, therefore, punishable
under § 70 of Act VIII. of 1873 with fine and
imprisonment, the maximum period of imprison*
ment in default of payment of fine allowed by
law is one-fourth of one month, and if a Magis-
trate punishes an offender for such offence with
fine only, be can award, in default of payment of
the fine, no longer term. Empress r. Darba...
L L. Rep. 1 All. 461, 1S77, P. B.
-S314.
Set Conviction on several
Charge*. 1.
Reu.b. Tukava L L. Rep. 1
Bom. 814.
S 3'4 ~~ Aggregate Sentence
Right of AppeaL
Set Appeal— Criminal. 3.
Reg. b. Rama Bhivgowda...L L.
Hop, 1 Bom. 388.
Digitized by GoOgle
DIGEST OF CASES.
CKZHQTAL PROCEDURE CODE, ACT CRJJSOTAX PROCEDURE CODE, ACT
X. OF 1870— contd. X. OP 1879-#™W.
5 344 — Evidence of Accused illegally par-
Sre Evidence. 9. 8.
Rec. a Hanmanta...I. L. Rep, 1
Bom. 810.
Empress n. Asghar Alt. ..I. L.
Hep. 2 All. 360.
§ 346— Confession defectively recorded.
See Evidence. 18. 14.
Rig. u. Shiwa I. L. Rep. 1
Bom. 919.
Empress v. Mannoo Tamooleb...
I. L. Rep. 4 CaL 896.
§ 346— Confession under % in improperly
recorded.
See Criminal Procedure Code, Act
X. of 1873, § 133. 3.
Empress e. Rahanjiva L L.
Rep. 3 Mad. 6.
" — " 8 34*— fi«!/h»,«-' Attestation when unne-
cessary.] The attestation required by § 346 of
the Criminal Procedure Code (Act X. of 1871)
is unnecessary when the confession is made in
Court t» the Magistrate trying the accused at
the time of trial. In such case it is not neces-
sary for the Magistrate to record any "confes.
*k>n," since he is competent, on the admission
of the accused, to sentence him without any
further record (I 314, Act X. of 1871). In tie
matter d/Chumu an Shah. Markby and Priiutp,
]] I. L. Rep. 3 Cat. 766, 1878.
— $ 347 — Accused improperly pardoned.
Sec Evidence. 9. 8.
Red. «. HAHMAHTA...Z. L. Rep.
1 Bom. 610.
Empress v. Asghar Am I. L.
Rep. 3 All. 360.
i 35' — Power of Magistrate to record
Evidence after Close of Case for Defence.
Set Practice- -Criminal. 1.
Empress •■ Baldbv Sa hai.,.1. L
Rep, 3 All. 253
—— f 359— Witnesses for Defence— Powers of
Magistrate.'] Section 359 of the Criminal Pro-
cedure Code, Act X. of 1879, means that if,
among the persons named by the accused as
witnesses to a defence, the Magistrate considers
that any particular witness is included for the
purpose of vexation and delay, he is to exercise
his judgment and inquire whether such witness
material. But that provision does not enable
the Magistrate to inquire generally into what
the defence of the accused person is to be, and
consider whether on learning the nature of
the defence, he is absolutely to abstain from
summoning the whole of the witnesses cited by
the accused.— Per Jackson, J., in Empress *.
Rajcoohas Singh. ..I. L. Rep. S Oat 578;
1 Cal. Rep. 803, 689, 1878.
S. C. under Land held by Joint
Owners and under Stat. 94
and SS Vict. CI. 104, f Iff. 8.
§ 390— Session Judge admitting to Bail
persons arrested by Magistrate after
Acquittal, pending Appeal.
See Criminal Procedure Code, Act
X of 1879, ,997.9.
Reg. u. Gholan Ismail I. Ir-
Rep. 1 AIL 1.
1^— S 390. — Bail — Accused Persons — Con-
victed Persons.'} The Court of Sessions has no
power under f 390 of the Criminal Procedure
Code, Act X. of 1873, to admit to bail a person
who has been convicted and sentenced to one
rigorous imprisonment, such conviction
being final and conclusive, and no appeal lying
from it ; a convicted person not being an accused
person within the meaning of that section.
Per Turner, J.— As an appellate Court, a
Sessions Judge has power on or after the ad-
mission of the appeal, to admit the convicted
person to bail- Rsa. v. Thakur Pa us had... I.
L. Rep. 1 All. 161, 1876, 7. B.
1. Chapter XXX., §§ 415 to 419— Resto-
ration of Property] A. was charged before the
police with theft of certain property. The
police, having made inquiries, considered that
there had been no theft, and so reported to a
Second Class Magistrate, pending whose order
the police retained possession of the property
alleged to have been stolen. The Magistrate,
agreeing with the police, ordered the property to
be restored to A., but the District Magistrate,
on the application of complainant, found that
A. had removed the property, but not dishonestly,
from B., a deceased person, and ordered it to be
delivered by the police to fi.'s heirs. It was so
Digitized byGOO^Ie
( WS ) DIGEST OF CASES. ( «4 )
CBIMINAL PROOEDTJBB CODE, AOT OBIHTMAL PROCEDURE CODS, ACT
X. OF 1872-ctmtd. X. OF 1972— contd.
Held, that the provisions of Chapter XXX. of
the Code of Criminal Procedure did not apply tc
such a case. Section 415 and the two succeed.
ing sections contemplate proceedings preliminary
to and independent of inquiry. On general prin-
ciples, where there has been an inquiry or trial,
and the accused person has been discharged or
acquitted by a Criminal Court, that Court is
bound to restore the property, the subject-matter
of the investigation, into the possession of the
person from whom it is taken, unless, as provided
for in f 418, such Court is of opinion that any
offence appears to have been committed regard-
ing it, when such order as appears right for the
disposal of the property may be made.
The Second Class Magistrate did not consi-
der that any offence had been committed in res-
pect of the property, and therefore § 4:9 gave
the District Magistrate no jurisdiction to inter-
fere, and his order was cancelled. But held,
that the High Court could not direct the resto-
ration of the property already delivered to the
complainant under the illegal order of the
Magistrate. In re Annapurnabai. Kemhall
and N, Harridas, JJ...L L. Hep. 1 Bom. 030,
1S77.
3. §§ 415-419— Act X. of 1872, §41°-
4I0 — Discharge of Accused far Want of Evi-
dence— Judicial Proceeding:.'] A. and B. were
arrested by the police, and, after an investigation
made by the police, were sent to the Magistrate
for trial, under § 411 of the Penal Code, on
charges of dishonestly receiving stolen Commis-
sariat tea knowing it to be stolen. The Magis-
trate discharged the accused after recording
evidence, as there was nothing to establish the
fact that any tea had been stolen or missed from
the Commissariat, and no claim on account of the
tea had been made by the Commissariat depart-
ment. But the Magistrate, considering that " the
case against the accused was of the very gravest
suspicion," and believing that the tea stolen was
Commissariat property, ordered that " a proclama-
tion under 1 416 of the Criminal Procedure Code
should issue regarding" the tea: —
Held, that the order of the Magistrate was
really passed under i 418 of the Criminal Proce-
dure Code, and the Magistrate believing that
an offence had been committed regarding the of the Ci
property, the order was one within his compe- Court could
tenca. And it was not necessary
that the Magistrate' should make the order in
the form (referred to in j 420 of the Code) of a
reference of the property to the Magistrate of
the district, or to a Magistrate of a division of a
district, as he was already competent to issue
the proclamation referred to in § 416. EMPRESS
». Nilambah Babu. Spankie, J I. L. Bop.
3 AIL 378, 1879.
S. C. under Judicial Proceeding,
and i 297. 10.
( 416 — Judicial Proceeding — Issue of Pro-
clamation.
See Judicial Proceeding.
Empress «. Nilambar Babu. ..I,
L. Rep. 9 All. 278.
(f 418 and 410— Order as to Disposition
of Stolen Property — Appeal.
See Government Currency Hots.
Empress d. Joqbssur Mochl.X
L. Sep. 3 Cal. 879.
S§ 436 and 431 — Jurisdiction of Criminal
Courts over Accused declared of Unsound
Mind.
See Lunatic.
Empress v. Joy Hari Kor I. L.
Hep. a Cal. 366.
f 430, Illustration (a).
See Defamation.
' Sibho Pkosad Pandha I. L.
Sep . 4 Cal. 124.
S 4S3 {el seq.)— Joint Trial of separate
ces— Prejudice to Accused.] The accused
■ns were tried on 27 charges, comprising
the offences of theft, abetment of theft, and
receiving stolen property in 1871-73; similar
offences in 1873.74; similar offences in 1874-75 i
the giving and receiving of gratification to and
by public servants in 1874-75; ""<* finally the
fabrication and abetment of fabrication of false
evidence in 1876. One of the accused was
convicted on two heads of charge, and the
rest acquitted. The convict appealed against
his conviction ; and the Government appealed
against his acquittal on the other heads, and
against the acquittal of the rest.
Held, that the trial was irregular, under ( 45a
nal Procedure Code, and that the
hear an appeal against the ac-
this case quittai on each and all of the above charges, for
D.gmzed by G00gle
DIGEST OF CASES.
CRIMINAL PROCEDURE CODS, ACT CRIMINAL PBOCKDTJUK OODB, ACT
X. OF 187fl--™.*rf. X. OV W?a-«mtd.
that would be to rc-try the 'ca.se in the same
irregular manner in which it had been tried in
the Court below ; but the High Court allowed
the appeal in respect of all the offences alleged
to have been committed in 1873-73 and 1S73-
' 74, and in respect of fabrication of evidence in
1876, to be withdrawn, and heard the appeal in
respect of the offences of theft, abetment of
theft, and receiving stolen property in 1874-75
only, it appearing that this course did not pre-
judice the accused persons, who had been fully
and fairly tried for those offences.
Held, also, that in considering the evidence
relating to these offences, the Court would not
take into consideration the evidence recorded to
prove the giving bribes to public servants in
that year, in order to enable the alleged thefts to
be committed, because, the accused having been
tried and acquitted on those charges, the pro-
secution ought not to be allowed to withdraw
its appeal as to those charges, and at the same
time, in order to establish another offence, to
introduce a subsidiary issue as to the correct-
ness of the acquittal. But that the evidence re-
lating to the alleged fabrication of evidence
might be considered by the Court, that offence
having been committed in Bombay and beyond
the jurisdiction of the Sessions Court of Thana,
whose acquittal of the accused in respect of that
offence was therefore coram not judice, and did
not prevent the Court from considering whether
the fabrication had taken place. Rbg. v, Han-
manta. Melvill wiA Kemball, JJ...L It, Sep.
1 Bom. 610, 1877.
S. C. under Evidence. 3.
*4S4-
See Conviction on several Charge*.
H *S3 to 4S4 — Distinct Offences— Separate
Ckarga.'] Section 453 of the Criminal Proce-
dure Code (Act X. of IE72) modifies § 452,
which requires a separate charge and a separate
trial for every distinct offence, by allowing three
charges of three distinct offences of the same
kind and committed within one year of each
other to be tried at the same time; but this does
n that if af
r within
■e than three distinct offences
of the same kind, he shall not in one day be
prosecuted for more than three such offences.
Empress v. DoHONJOV BibAj. Ainslie and
McDonnell, JJ...I. LRep. 8 Cal. B40 ; 1 Cal.
Rep. 478, 1878.
S454-
Set Offence made up of several
Empress v. Rah Adhih L L.
Rep. 2 All. 138.
— i 454 — Criminal Trespass — Mischief.']
Where a person committed a trespass with the
intention of committing mischief, thereby com-
mitting criminal trespass, and at the same time
committed mischief -,—Heltl, that he could not,
under CI. iii. of % 454 of the Criminal Procedure
Code (Act X. of 1872), receive a punishment '
more severe than might have been awarded for
either of such offences. The provisions of that
law do not in such a case prohibit the Court
from passing sentence in respect of each offence
established. Empress v. Budh Singh. Turner,
J I. L. Rep. 2 AIL 101,1870.
S. C. under Criminal Treapaes.
— — ( 457 — Acquittal by Jury but with Finding
of Facts amounting to another Offence-
Power of High Court on Reference.
See ante, , 283.
Empress e. Harai Mirdha X. L.
Rep. 8 CaL 180.
f 466 — Sanction to prosecute a Mahalkari.
See Sanction to Prosecute. 4.
Impx. *. Lukshban.-.I. L. Rep.
2 Bom. 481.
1 468— Sanction to prosecute — Relative
Position of Magistrate and Sessions Judge.
See Sanction to Prosecute. 4. B. 8.
§§ 468-469.
See Sanction to Prosecute. 1.
Bakkat-uixah.khan e. Rinni*...
L I, . Rep. 1 AIL 17.
55 47't 47*, 473— Contempt of Court
See False Evidence.
Reg. it. Gaji...L I.. Rep. 1 Bom.
811.
— SS 471, 47*— Power of Sessions Court to
commit to itself Case not triable exclu.
sively by Court of Sessions.
See Jurisdiction. 18.
Empress, v. Futtsh Ttabkham...
I. L. Rep. 4 CaL 670.
Diaxized by Google
( 877 ) DIGEST OF CASES. ( 178 )
CRIMINAL PROCEDURE CODE, ACT CRIMINAL PROCEDURE CODE, ACT
X. OF 1873— contd. X. OP 1878— amtd.
I, § 471. — False Evidence— Jurisdic-
tion^ Section 471 of the Criminal Procedure
Code, Act X. of 1S71, does not deprive the
Court, which possesses the power of trying an
offence mentioned in §§ 467 to 469, of the power
of trying it when committed before itself. Reo.
b. GlTR Baksh. Pearson, J..X L. Rep. 1 All.
188, 1876.
Overruled, see § 473. 3, post.
Rkg. o. Kultaran Singh. ..I. L.
Rep. 1 AU. 139.
Reg. v. Jagat Mal ..Ibid. 163.
Res. v- Kashmiri LAL.Ibid. 835.
a.— §471.— Act XXIII. 0/1861, § 16-
Order sending Case to Magistrate for Inquiry
into Offence of giving False Evidence— Preli
nary Inquiry — Vagueness of Charge — Abetment']
Although $ 16 of Act XXIII. of 1861 gives C
Courts powers similar to those conferred
Civil and Criminal Courts alike by § 47 of
Act X. of 1872, yet the whole law is now embo-
died in § 471 of the latter Act, and the jurisdic-
tion of the High Court to interfere is not affected
by a suggestion that the order complained of
or might have been, made under § 16 of Act
XXIII. of 1861, and not under § 471 of Act X.
of 1872.
In a suit brought to recover possession of cer-
tain property, the Judge decided one of the
issues raised, in the plaintiffs favour, but on the
important issues as to whether the plaintiff ever
had possession, he found for the defendant. The
plaintiff was not examined, but on the issue as
to possession he called two witnesses. The
Judge disbelieved their statements, and consider-
ing that the plaintiff had failed to prove his case,
he gave judgment for the defendant, without
requiring him to give evidence on that issue.
In the concluding paragraph of his judgment
the Judge directed the depositions of the
witnesses above referred to, together with the
English memoranda of their evidence, to be
seat to the Magistrate with a view to his ir
ing whether or not they had " voluntarily given
false evidence in a judicial proceeding," and he
further directed the Magistrate to in
whether or not the plaintiff had abetted the
giving of false evidence on the ground that
the witnesses were the plaintiff's servants
must personally have influenced them, and also
to inquire whether the plaint which the plaintiff
had attested, contained averments which the
plaintiff knew to be false. On a motion to
quash this order: —
Held, that under i 471 of Act X. of 1872, the
Judge has no power to send a case to the
Magistrate except when, after making such pre.
lary inquiry as may be necessary, he is of
on that there is sufficient ground, is.,
ground of a natnre higher than mere surmise,
for directing judicial inquiry into the matter of
specific charge.
There is no such legal presumption as that
because the plaintiffs witnesses are bis own
servants, he must personally have influenced
them so as to make him liable for abetting the
giving
of false evidence, 1
n if they have done
The Judge was bound to indicate the parti-
cular statements or averments in respect of
which he considered that there was ground for
a charge into which the Magistrate ought to
inquire. Something more than a mere indica-
tion that a witness has spoken falsely is needed
before a Civil Court is justified in initiating
a prosecution for giving false evidence. There
must be evidence of a direct and substantial
nature before the Court, evidence going to show
that the statement made by the witness is ab-
solutely false ; and the Judge, having made no
preliminary inquiry as was necessary, and the
order being too vague and general in its character,
such order was quashed. Kali Prosunno Bagcktt
(33 W. Rep. Cr. Rul. 39) followed. Reg. v.
BAIJOO LalL. iiacpkersoit and Morris, JJ...I.
L. Rep. 1 Cftl. 4B0, 1876.
1 — % 473.— Contempt of Court — Nui.
Sana — Injunction to discontinue.'] Section 473
of the Code of Criminal Procedure (Act X- of
1S72), which, except as therein provided, forbids
the Court to try any person for an offence
committed in contempt of its own authority, is
not limited to offences falling under Chapter X.
of the Penal Code, but extends to all contempts
of Court.
A Magistrate, therefore, cannot try a person
for the continuance of a nuisance after an
injunction issued by himself to discontinue it.
Reg. v. ParsapaMahadbvapa. MelvilUn&N.
Harridas, JJ...L L. Sep. 1 Bom. 339,1876.
3. — § 473.— Contempt of Court.— Offence
against Public Justice.] An offence against
public justice is not an offence in contempt of
D,gltlzed by G00gle
( 379 ) DIGEST OF CASES. ( 880 )
CBIHUf AL PBOCBDTJKE CODE, ACT CRIMINAL PROCEDURE OODB, ACT
X. OF 1872— contd. X. OF 1878-
Court within the meaning of | 473 of the Cri.
roinal Procedure Code, Act X. of 187a; but
the Court, Civil or Criminal, which is of opinion
that there is sufficient ground for inquiring into
a charge mentioned in §§467 to 469 of that Act,
may not, except as is provided by § 471, try the
accused person itself for the offence charged.
Rao. e. Kultaban Singh...I. L.
Bap. 1 AIL 199.
Reg. it. JaoatMal ..I. L. Hep. 1
All. 168.
Overruled by Empress «. Kashmiri Lai....
Ibid. 085, 1877,
where the Full Bench (Stuart, C. J., dissenting)
decided that an offence under § 193 of the Penal
Code, being an offence in contempt of Court
within the meaning of J 473 of Act X of 187;
could not, under that section, be tried by the
Magistrate before whom such offence was com-
mitted.
See False Evidence.
Reg, v. Gaji...L L. Bep. 1 Bom.
811.
8.^— 5 473- — Construction."} Theprohibi-
uon in I 473 of Act X. of 1871 is a personal
prohibition, the mischief to be prevented being
that the same person should not decide
which he may have already prejudged.
Therefore, where proceedings were instituted
against a person who had made at false charge
against the prosecutor, before the Magistrate to
whom such false charge was made, and who had
sanctioned the prosecution, but before the com-
pletion of the inquiry such Magistrate was
succeeded in office by another 1 — .
Held, that there was nothing to prevent the
Magistrate succeeding from trying the case.
Anom. Inn—, C.J. (Offg.), and Bustled, 1...I.
L. Bep. 1 Mad. 308, 1877.
4. Contempt of Court— Penal Code, § 174
—Criminal Procedure Cede, Act X. of 187a, %%
471, 473.] Where a settlement officer, who was
also a Magistrate, summoned, as settlement
officer, a person to attend his Court, and such
person neglected to attend, and such officer, as
a Magistrate, charged him with an offence under
§ 174 of the Penal Code, and tried and con.
victed him on his own charge : —
Held, that such conviction was, with reference
to {§ 471 and 473 of the Criminal Procedure
Code, Act X. of 1873, illegal. Empress », Su-
khari. Oldfieid, J. ..I. L. Bep. S AIL 400,
1878.
% 489.— Security to kef the Peace— Penal
Code, |5 503, 506— Criminal Intimidation.']
The operation of the words « taking other un-
lawful measures with the evident intention of
committing a breach of the peace" in \ 489 of
the Criminal Procedure Code, Act X. of 187a, is
not limited to riot, assault, actual breach of the
peace, or abetting the same, or unlawful assem-
bly, but is intended to comprehend a wider range
of offences, and it must be for the Magistrate or
Court to decide in each case, whether from the
nature of the charge upon which conviction takes
place, there has been direct force or violence to
the person, or conduct inducing an apprehension
of force or violence, or a direct threat of force or
violence, or a provocation to the commission of
force or violence; but those words do not include
the offence of intimidation by threatening to
bring false charges.
Where, therefore, a person was convicted un-
der |§ 503 and 506 of the Penal Code of such
offence : — Held, that the Magistrate by whom
such person was convicted could not, under §489
of the Criminal Procedure Code, require him to
give a personal recognisance to keep the peace.
Empress v Raouba. Straight,]...!. L. Bep.
8 AIL 801, 1879.
~~ i 503 — Proceedings on Forfeiture of Recog-
nisance— Evidence— Sight of Cross-Eaamina-
lion.] According to the fair construction of J
503 of Act X. of 187Z, a Magistrate is not justi-
fied in forfeiting a recognizance under that
iless the party charged with a breach
of the peace has had an opportunity of cross-
examining the witnesses upon whose evidence
the rule to show cause has been issued.
That opportunity may arise either upon the
prosecution of the accused person before the
Magistrate for a breach of the peace, or for any
other offence, in which case the accused would
have the right to cross-examine the witnesses for
the prosecution ; or it may arise upon a snbstan-
ipplication made to the Magistrate to forfeit
cognizance ; in which case the witnesses 00
whose evidence the rule is granted ought to be
present and subject to be cross-examined by the
accused, on the occasion when cause is shown
Digitized byGOO^Ie
DIGEST OF CASES.
CRIMINAL PBOaEDtTBE, OODE, ACT
X. OP 1872— «mW.
Against the rule. Empress v. Nobis Chundbr
Dutt I. L. Kop. 4 CaL 866 ; 4 Oal. Bap.
242, 1879, V. B.
(Jos-
Br* Security for Good Behaviour.
Empress v. Dbdar Sircar. ..I. L.
Rep. 2 Cal. 384.
r, S°S — Procedure— SecurityforGoodBeha-
Stt Whipping Act. VI. of 1804,
§§ 2 and 8.
Emphess v. Pariah. ..I. L. Rep.
lAiieee.
( 51S — Superintendence of High Court.
See Stat. 24 and 2S Vict., Oh. 104,
i IS. 6.
Chundeb NathSbn...I. L. Bep.
2 Cal. 283.
-SS3°-
See Land held by Joint Owners.
Empress v. Rajcoohak Singh ...
L L. Bep. 8 Cal. 678.
— 5 53° — Tenant from Year to Year— Notice
See Ejectment. 1.
RamRottoh v. Ketro KALLY...L
L. Bep. 4 Cal. 839.
., ( 530. — -Constructive Possession.'] In
a ease of disputed possession between two rival
zemindars, constructive possession through
termediatc holders (ticcadars) to whom the ryots
pay rents, is not such possession as is eontem.
plated by § S30 °* the Criminal Procedure Code
Empress e. Thacoor Dval Si no. Ainslie and
jtcDonnell, JJ..X L. Bep. 8 Cal. 320, 1878.
S. % 530.— Possession— Butwarra Pro-
ceedings—Possession given by Ameen, Effect of.
The possession given by an Ameen in a butmrnm
proceeding is simply one of ownership, and not
of occupancy. Such possession, therefore, can-
not, in proceedings under § 530 of the Criminal
Procedure Code (Act X. or 187a) be held to oust
tenants occupying lands previously to such deli-
very of possession. Mackenzie v. Shere Ba-
HAOOOR SaHI. Jackson and McDonnell, JJ....L
L. Bep. 4 Cal. 378, 1878.
8. 5 S3°. — Possession — Ouster without
Authority of Civil Court.} On the death of A.,
his property was vested in B., his trustee. One
AT., who claimed the property on behalf of his son,
obtained a certificate under Act XXVII. of i860,
on the strength of which he induced a number of
ryots to give him Kabuliats. The Magistrate,
hearing that there was likely to be a breach of
the peace, instituted proceedings under f 530 of
the Criminal Procedure Code (Act X. of 1872),
filing on K. and B. to establish their possession,
and found that K. in asserting his possession
under the certificate, was unable to obtain
n of the dwelling-house and cut cherry,
part of the property of A., but that he had
obtained possession of the villages, by inducing
the ryots to acknowledge their tenancy from
him and pay him the rents due, so establishing
the relation of landlord and tenant ; and the
Magistrate made an order confirming K. in pos-
session of the villages, and B. of the remainder
of the property 1 — (
Held, that B., being lawfully in possession on
the death of A., until there had been a yielding
up of possession by B., or the person to whom
he chose to make over the property, anybody
coming forward to take it without the sanction
of the Civil Court was, so far as the Magistrate
was concerned, in the position of a trespasser.
If, a breach of the peace was imminent, the
Magistrate ought to have bound over K. to
maintain the peace, and not to have ousted B.,
whose possession was undoubted. If of two
parties— the one lawfully in possession, and the
other struggling for possession — the latter suc-
ceeds in ousting the former, the Magistrate, in
a proceeding under § 530, is not to recognize the
party so ousting the other as the one to be
maintained in possession. He must look to
possession which may be termed peaceful, and
must go back to the time when the dispute
originated, and not to the result of the dispute
itself. In the matter of the Petition of Mohesh
Chundeb Khan. Ainslit and Maclean, JJ..X
L. Bep. 4 CaL 417, 1878.
4. — — i 53O. — Powers of Magistrate —
Notice to Parties to attend, Form of — Intervener.)
A Magistrate, being led to the belief, from pro-
ceedings before him, that there was a likelihood
of a breach of the peace in consequence of a
dispute about certain lands between A. and 8.,
directed proceedings to be held under % 530 of
Act X. of 1871, and caused a notice to be served
on A. and B. Prior to the bearing A. and H.
D,gltlzed by G00gle
( 883 ) DIGEST OF CASES. ( 884 )
CRIMINAI. PROCEDURE CODE, ACT CRIMINAL PROCEDURE CODE, ACT
X. OP 1873— amid. X OP 1873-n.nW.
came to an amicable settlement of their dispute ;
bat, in the mean time, shortly before this settle-
ment, one C. came in and put forward a claim
to possession of a portion of the land covered
by the Magistrate's notice, and eventually the
Magistrate made an order declaring C. ti
the party in possession of the part claimed by
him:—
Held, that a proceeding, such as is required
by § 530 of Act X' of 1872, was a necessary
preliminary to the jurisdiction of the Magistrate
to make an order. The power given to Magis-
trates to make a binding declaration as to the
possession of property is an exceptional one, and
§ 530 limits the exercise of this power to cases
in which the Magistrate is satisfied that a dis-
pute, serious enough to be likely to Induce a
breach of the peace, exists ; and it is this
likelihood, with the consequent necessity for
immediate action, which alone warrants action
by the Magistrate under Chapter XL, and the
Magistrate is obliged to certify the grounds on
which be believes in the existence of a likelihood
of a breach of the peace by recording them in a
proceeding.
Though no particular mode is prescribed, of
giving notice to parties to attend before the
Magistrate under this section, yet the language
of the section shows that the notice shall be
addressed to known individuals — the parties
indicated in the information on which the Ma-
gistrate's action is based — and not be in the form
of a public notice or proclamation calling upon
all parties concerned, to attend the Magistrate's
Courts. There is no provision in the Criminal
Procedure Code for allowing an intervenor to
come in in the middle of proceedings held
under $ 530. As to such third party the Ma-
gistrate has no information of any dispute likely
to lead to a breach of the peace between him
and any one else, and, therefore, the only
ground on which he could enter upon an inquiry
as to the possession of such third party at the
date of the commencement of the pending
proceedings is wanted. The order, therefore,
relating to C'a possession was quashed, as hav-
ing been made without jurisdiction. In the
matter of ih* Petition o/Kunund Naraih Bhoof.
Ainslie and Brcughtnn, JJ ...I. L. Sop. 4 Cal.
660 ; 8 Cal. Rep. Ml, 1878-
5. § S3°- — Bench of Magistraies—Juris-
dittien Act X. of 1871, % 50.] A Bench of Magis-
trates has no power to deal with cases under
530 of the Criminal Procedure Code (Act X. of
1871). A Bench may be empowered under J 50
of that Act " to try such cases or such classes
of cases only and within such limits as the Go-
: may direct." The definition of the
ial" shows that it refers only to trials
for " offences," and not to miscellaneous matters
;h as those coming within , 53a Sufferud.
j v. Ibrahim. Mariby and Prinsep, JJ...I L.
Rep. 3 Cal. 754; 2 Cal. Rep. 203, 1878.
Chapter XII.
See Maintenance).
Lal Das v. Nekunjo Rmaishiani
L I., Rnp. 4 Cal. 874.'
CRIMINAL INTIMIDATION - Con viction
of— by Threatening to bring False Charge
— Convict cannot be required to give
Security to keep the Peace.
See Criminal Procedure Code, Act
X. of 1872, 5 481).
Empress *. Rachubar I. Ik
Hep. 8 AIL 361.
CRIMINAL TRESPASS.
See Laud held by Joint Owner*.
Empress b. Rajcookar Singh...
I. L. Rep. 3 Cal. 678.
1. PenalCode, §447.] A., who had been
warned off B.'s lands, subsequently having shot
the boundary of B.'s land, and the
deer having run on to B.'s land, followed it on
to such land for the purpose of killing it 1—
Held, that his doing so did not constitute
criminal trespass. Chunder Narain o. Far-
gifHARSOH Birch and Milter, ]] ..L I.. Rop.
4 Cal. 887, 1B78.
3. Penal Cede, f 441 — Public Ferry.J
A person plying a boat for hire at a distance
of three miles from a public ferry, cannot be
said, with reference to such ferry, to commit
"criminal trespass" within the meaning of ( 44!
of the Penal Code. Muthra o. Jawahir.
Spankir,) I. L. Rep. 1 All. 637, 1877.
S. C under Disobedience of Order of
Public Servant,
8. Penal Code, f 447- Infringement of
Exclusive Right of Fishery in a Public Kivtr.]
Where it was proved that the accused bad fished
D.gmzed by G00gle
DIGEST OF CASES.
CBIKINAl TKRSPASB-contd.
in a public river at a place where the prosecutor
bad the exclusive right of fishery :—
Held, that this did not constitute the offence
of criminal trespass within the meaning of § 447
of the Penal Code. Though a fishery is pro-
perty, a man who fishes in a public river does
not enter upon property in the possession of
another, though he may have no right to fish
there. The river on which the accused entered
being a public one was not in the exclusive
possession of any one, and a right of fishery is
not property of such a nature as that a man who
unlawfully infringes that right can be said to
enter on property in the possession of another
within the meaning of the above section. Em-
press o. Charn Naiyak. ttarkby and Prinsefi,
II - I. I.. Bep. 3 Oal. 354, 1877.
4. -Mischief —Penal Code, §§ 425 to 441
—Claim of Right.] If a person enters on land
in the possession of another in the exei
int fide claim of right, but without any inten-
tion to intimidate, insult, or annoy the person
in possession or to commit an offence, then,
although he may have no right to the land, he
cannot be convicted of criminal trespass, be-
cause the entry was not made with any such
intent as constitutes the offence. So also If
person deals injuriously with property in the
bmi fide belief that it is his own,
be convicted of the offence of mischief, because
his act was not committed with intent to cause
wrongful loss or damage to any person.
But the mere assertion of a claim of right is
not in itself an answer to charges of Ci
trespass and mischief. It is the duty of the
Criminal Court to determine what wi
intention of the alleged offender, and if it
at the conclusion that he was not acting in the
exercise of a tonifide claim of right, then it
cannot refuse to convict the offender, assuming
that the other facts are established which con-
stitute the offence. Empress o. Budh Singh.
Turner, J I. L. Bep. 2 All. 101,1879.
S. C. under Criminal Procedure Code,
Act X. of 1872, 5 404.
B.—PenalCode, ,441 — Criminal Trespass.]
The word "annoy" in § 441 of the Penal Code,
fust be taken to mean annoyance that would
reasonably and generally affect an ordinary
person, not what would specially and exclusively
annoy a particular person. It does not ni
wrUy follow that because an entry on property
CRIMINAL, TRESPASS- tentd.
in the possession of another is illegal, it is there'
fore, and without more, criminal trespass. The
intent with which the act is done must be
established by clear and convincing evidence of
such character and description as the particular
Lture of the case requires.
The possession contemplated by that section,
the person against whom it is alleged that
the offence of criminal trespass baa been com.
1st be actual in the sense and meaning
of f 530 of the Criminal Procedure Code, Act X.
of 1873.
Re-entry into or remaining on land from which
person has been ejected by civil process, or of
which possession has been given to another for
the purpose of asserting rights he may have
solely or jointly with others, is not criminal
trespass unless the intent to commit an offence.
intimidate or annoy, is conclusively proved.
Certain immoveable property was the undivided
property of C, G., and another. R. obtained a
decree against G. forpossessionof such property,
and possession was accordingly delivered to him
in execution of that decree, under £ 364 of
Act X- of 1S77. C, in good faith, with the inten-
tion of asserting her right, and without any
intention to intimidate, insult, or annoy R., or
to commit an offence, and G., in like manner,
with the intention of asserting the rights of his
co-owners, remained on the property :—
Held that, under the circumstances, they could
not be convicted of criminal trespass.
In the matter of the Petition of Go-
bind Prasad. Straight, J...L
It. Bep. 3 AIL 465, 1879.
GROSS— Standing— Immoveable Property for
purposes of Act IX. of 1871.
See Standing: Crops.
Panda H Gazi s. Jehnuddi.,.1.
L. Bep. 4 Cal. 665.
Suit for— Value of — Jurisdiction of Small
Cause Court
See Bengal Ant VTJX of 1809, ( 98.
Hydee A1.1 o. Jafar Au ...I, L.
Hep/1 OaL 183.
GROSS- DECREES— Act X. of 1877, ( 346.
See Execution of Decree. 3.
Murli Dhar e. Paksotah Das ...
I. L. Bep. 2. AIL 91.
by Google
( W7 )
DIGEST OF CASES.
CROSS-EXAMINATION— On Affidavit.
See Practice-CMl. X.
Kennbl.lv c. Wvman ...I. L.
Sep. 1 CaL 178.
Right of — of Witnesses on whose Evidence
Rule issued to show cause why Recog-
nizance should not be forfeited.
See Criminal Procedure Code, Act
X. of 1878, § 603.
Empress «. Nobin Chukoer Dutt,
I. L.Kep.4Cal. 866.
CROSS EXAMINATION OF WITNESS-
ES FOB PBOSECUTION— Right of
Accused to recall for.
See Practice— Criminal. 1.
Empress v. Baldeo Sahai...I. L-
Bep. 3 All. 358.
CROWN DEBT— Court Fees— Pauper Suit.
See Civil Procedure Code, Act
VIH. 0(1868, (808.1. 9.
Ganpat p. Collector of Canara.
I. L. Rep 1 Bora. 7.
Gulzari Lal ». Collector op
Barfjlly...I.L, Bep. 1 All.
690.
See Prerogative of the Crown.
Collector op Moradabad e. Mu.
hamad... I. L. Bep. 3 AIL
196.
CRUELTY.
See Restitution of Conjugal Right*.
1.
Yauunabac v. N. M. Pendse . I.
L. Rep. 1 Bom. 164.
CULPABLE HOMICIDE.
See Murder.
Reg. v. Govimo...L L. Bep. 1
Bom, 843.
Req. v. B a lap a... I. L. Bep. 1
Bom. 038.
See Penal Code, { 804s.
Empress s. SafAtulla...!. L.
Rep. 4 Cal. 816.
Reg, v. Acharjya...L I.. Rep.
1 Mad. 221.
Exposure of Infant with':intent to abandon
— Death caused by— Separate Sentences.
See Conviction on several Char gee;
3.
Empress v. Banni...I. L. Bep.
3 All. 848.
CULPABLE HOMICIDE, CONVICTION
OF, ON CHARGE OF XUBSBB.
See Appeal— Criminal. 4.
Empress v. Joodookath Gan-
G00U...I. L. Rep. a Cal.
373.
CULPABLE HOMICIDE— Penal Code, §§
304. 304A, 356, 337, and 33&-/tosltnes~NegIi-
gence.] Section 304A of the Penal Code does
not apply to a case in which there has been the
voluntary commission of an offence against the
person. If a man intentionally commits such
an offence, and consequences beyond his imme-
diate purpose result, it is for the Court to
determine how far he can be held to have the
knowledge that he was likely by such act to
cause the actual result. If such knowledge can
be imputed, the result is not to be attributed to
mere rashness ; if it cannot be imputed, still
the wilful offence does not take the character of
rashness, because its consequences may have
been unfortunate. Acts probably or possibly
involving danger to others, but which in them-
selves are not offences, may be offences under
§§ 336, 337/ 338i ■" 3P4A °f th* Pena! Cofe,
if done without due care to guard against the
dangerous consequences. Acts which are offen-
ces in themselves, must be judged with regard
to the knowledge, or means of knowledge, of
the offender, and placed in their appropriate
place in the class of offences of the same
In judging of knowledge had by the accused,
the circumstances must be considered ; the blow
that to one person, or under ordinary circum-
stances, may not, in the ordinary course of
nature, be likely to cause death, may yet be
imminently dangerous to another, or under
special circumstances. To kick a girl of tender
age with such force as to cause rupture of the
abdomen in a healthy subject, is an act of
such a nature that no reasonable man could
be ignorant of the likelihood of its causing
death. Empress e. Ketabdi Mundul. Ainsiie
and Brought™, J.J...I. L. Bep. 4 Cal. 704,
1879.
CULTIVATING RYOT— Ejectment of.
See Partition Suit.
Samihda Pillai v. Subba Rid-
D1AR...I, L. Bep. 1 Had. 888.
Diarized by Google
(
)
DIGEST OF CASES.
-Title
CURRENCY NOTE-Theft
Original Owner.
See Government Currency Note.
Empress v. Jogessur Mochi .1.
L. Rop . 3 Cal. 379.
CUSTODY OF ILLEGITIMATE
CHILD.
See Maintenance.
Lai. Das v. Bhai Skiani...L L,
Rep. 4 Cal. 374.
CUSTODY OF INFANT CHILDREN—
Loss of Caste does not deprive Father of
Right to.
See Loaa of Casta.
Kanciii Rah v. Biddya Rah. ..I.
L. Rep. 1 AH. 648-
CUSTODY OF HTNOS CHILDREN.
SeeMahomedan Law— Divorce. 1.
' Ha mid Am «. Mitiazan...L
L, Rep. 3 AIL 71.
Prostitution disqualifies Legal Guardian
for Right of.
See Mahomed an Law— Guardian.
Abasi b- Dunne L L. Rep. 1
AIL 698.
CUSTODY OF SERVANT.
See Contract. 15.
BlDDOHOYE Da BSE V. SlTTAKAH ...
I. L. Rep. 4 CaL 467.
CUSTOM.
See Pre. eruption. 6.
RajaRamv. Bansi...L L. Rep,
1 All. 207.
. Alienation of Trusteeship for Pecuniary
Advantage of Trustee.
Set Alienation of the Right of
Management of a Pagoda.
Rajah Vurhah Valia b. Ravi
Vurma Mutha...L. Rep. 4
L A. 76 ; L L. Rep. 1
Mad. 236.
Set Pre-emption. 10. IS.
Chadami 1
Baksh L L. Rep. 1
Maiutib Au e. Abdul Hakim. ..I.
L. Rep. 1 AIL S67.
I CUSTOM-toBtrf.
| Caste — For a Married Woman to contract
Second Marriage during Life-time of her
first Husband and without his Consent.
See Penal Code, f 404.
Reg. v. Sambhu... I. L. Rep. 1
Bom. 347.
See Custom. 0.
- Divorce.
See Hindu Law — Divorce.
..X L.
Rep. 3 Cal. 306.
See Mahomed an Law— Dower. 3. 8.
Eidah v. Mazhar Husais ..L L.
Rep. 1 All. 48a
Taupik-un-Nissa o. Ghulam
Kambar...I. L. Rep. 1 All.
606.
— Family — Primogeniture.
See Hindu Law— Inheritance—
Primogeniture.
Chowdhrv Chintamun v. Musst.
Nowll-kho...!. L. Rep. 3 I.
A. 263 ; L. Rep. 1 Cal.
163.
— among Gosavis — Recognizing Legitimacy
of Illegitimate Children, Offspring oi
Adultery— Void.
See Cuatom, 6.
— Immoral.
See Custom. 5,
See Penal Code, § 494.
Reg- e. Sambhu. ..I. L. Rep. 3
Bom. 140.
See Immoral Custom.
Chinna Uhhayi e. Teoarai
Chetti ..I. L. Rep. 1 Mad.
168.
— for Kaziship to be Hereditary.
See KaeL 1. 3.
Jamal Ahmed v. Jamal Jallal...
I. L. Rep. 1 Bom. 633.
DAUDSHA b, lsMALSHA I. L.
Rep. 3 Bom. 72.
— Occupancy Rights transferable by.
See Transfer of a Portion of Occu-
pancy holding.
TlRTHANUND THAKOOR V. MuTTY
Lall Miseek...L L. Rep. 8
Cal. 774.
Diarize* by Google
DIGEST OF CASES.
CUSTOM— contd.
Onus Probandi of — among Kliojas opposed
to Hindu Law of Inheritance.
Rahihatbai v. Hirbai I. L.
Hep. 3 Bom. 34.
Pagoda — Alienation of Right of Manage-
ment of.
See Alienation of Bight of Man age-
meat of a Pagoda.
Rajah Vubmah Valia v. Ravi
VURMAH MuTHA ... L. Bep,
' 4 I. A. 7(1 ; L L. Bep.
1 Mad. 385.
— Proof of.
S« Khojas.
Rahihatbai v. Hirbai I. I.
Bep. 3 Bom. 34.
Religious Brotherhood — Mohunts.
Set Mohunt.
Rajah Muttu Ramalinga v. Prr-
...L. Bep. 1 1. A.
1. Conditions for Validity of—]
"Among the conditions essential for establishing
quity, that it has been continued and acquiesced
in, that it is reasonable, and is certain and not
indefinite in its character." Per Oldfield, j.,'in
Lala v. Hira Singh...I. L. Bep. 2 All. 49-
51, 1878.
3. Essentials of— ] A custom is a
rule which in a particular family, or in a parti-
cular district, has from long usage obtained the
force of law. It must be ancient, certain and
reasonable, and, being in derogation of the
general rules of law, must be construed strictly.
Hurpurshad *. Sheo Dyal.„Ii. Bep. 3 I. A.
259-286.
S. C. under Oudh Proclamation in
1868, para. 8.
3. Limitation.'] No custom can beat-
lowed to override the positive prescriptions of
the Limitation Act. Mohanlal Jbchahd v.
AmraTLAL BSCHAKDAS. West and Pinkey, JJ...X.
L. Bep. 3 Bom. 174, 1878.
S. C. under Easement. 9.
4. Proof of— Manorial Dues and Cesses.]
The plaintiffs, zemindars, sued for a declaration
of their ancient right, as against all the tenants
OVBTOM-contd.
of a certain village, to appropriate alt trees of
spontaneous growth, and the fruit of other trees
planted by the tenants ; also to receive as mano-
rial tribute a certain number of ploughs annual-
ly, and a certain offering of poppy seed and
other farm produce on the occasion of the
marriages of certain persons of the lower class of
tenants, with a further right to levy a certain
proportion of the produce of the sugarcane
manufactories and fields in the village : —
field, (1) that where a custom regarding'seve-
ral cesses is alleged, the existence of tbe custom
regarding each cess should be tried as a separate
issue : (2), that parol evidence given generally as
to the existence of the custom should be tested
by ascertaining on what grounds the opinion of
each witness is based : (3), the most cogent
evidence of custom is'that afforded by the enu.
roeration of instances in which the alleged
custom has been acted on, and the proof afford-
ed by judicial or revenue records or private
accounts and receipts that the custom has been
enforced : and (4), that a custom to be good must
be definite- Lachhan Rai «. Akbar Khan.
Pearson and Turner, J J...L, L. Bep. 1 AIL 440,
1877.
5. Among Qosavis — Immoral Custom.]
A Custom among Gosavis to recognize a right of
heirship in the son of a Gosavi by a woman who,
in the life time of her previous husband, and
without his consent, has married the Gosavi
would be a bad custom, and such as could not be
treated by Courts of Justice as valid. Narayan
Bharti tr. Laving Bharti. Westropp, C.J., and
Afelvill.l I. L. Bep. 3 Bom. 140, 1877.
S. C. under Hindu Law — Inheri-
tance—Illegitimate Son. 5.
CY-PBES— Application of Doctrine of— when
Residuary Bequest to Charity.
See Wul 11.
Mayor of Lyons o. Advocatk-
General of Bengal L,
Bep. 8 1.1 32; I. L.
Bop.lCal.303 ;L.Bep. 1
App. Oa. 91.
CTFBTJS —Offence committed at— Jurisdiction .
See Offence committed at Cyprus.
Empress ». Sarmukh Singh. ..I.
L. Bep. 8 AIL 818.
Diarized by Google
DIGEST OF CASES.
DAMAGE BY OVERFLOW OF WATSB
FBOM TANKS.
S« Tanks.
Madras Railway Co. v. Zemin-
dar of Ca rv ate nao arum ...
L.Sep. II. A. 804.
DAMAGES-for Arrest.
Set Damages. 4.
— Against an Intruder into the Office of Choi-
See Disturbance cf Office. I.
Shankara v. Hanma...!, L. Hep.
2 Bom. 470.
— — Against an Intruder into an Office — Watan-
dar Joshi.
See Disturbance of Office. 2.
Raja Shivappa *. Krishhabhat..
L L. Rep. 3 Bom. 833.
—r Infringement of Patent.
See Infringement of Patent.
Sheen t>. Johnson I. L. Rep.
8 AIL 366.
— Liability of Execution Creditor in — for
Wrongful Seizure.
Set Liability of Execution Creditor
in Damage* for Wrongful
Beisure.
Gopal Mahad Path, v. Goculdas
Khimji...!. L. Bep. 3 Bom.
74,
— Measure of— Wrongful Attachment of Pro.
perty of Third Person— Loss of Property
while under Attachment.
See liability of Execution Creditor
in Damages for Wrongful
Beiaure.
Gopal Mahad Patii. e. Goculdas
Khimjc.L L. Bep. 8 Bom,
74.
Wrongful Dismissal.
See Master and Servant. 1.
MacGillivkay v. Jokai Assam
Tra Co..X L. Bep. 2 Cal.
1. Suit for— Joint Undivided Froprie-
ten— Revenue Salt.'] No suit for damages as be-
tween joint owners of undivided estates will lie,
in consequence of the sale of the whole estate
through the default of one or more of such
owners in paying their shares of the Govern-
DAMAGES- -tentd,
merit revenue. Odoit Roy v. Rndha Pandey
(7 W. Rep. 7*) followed. Lalla Ramksshuk
Daval Singh v. Lalla Bissa DayAL, Kemp and
Pontifex, JJ I. L. Bep. 1 Cal. 406, 1876.
S3. Defamation — Nominal Damagts."]
suit (or defamation, if a Court thinks that
though the words complained of may have been
spoken by the defendant, yet that the plaintiff is
ntitled to damages, he having already
ially prosecuted and procured the convic-
tion of the defendant for the defamation,— and
that the suit is therefore, under the circum-
exatious, it is not bound to award the
plaintiff even nominal damages, but may dismiss
it FuraBK Parooee v. Mohhndbr
Nath Mozoohdar. Markhy and Hitler, JJ...
L L. Bep. 1 Cat 886, 1876.
S. C. under Costs. 2.
8. — - Measure of— Action for Breath cf
Contract— Collateral Contract.} The defendant
nto a contract with the plaintiffs to
purchase from them a eertain quantity of gunny
bags, of which the defendant was to take deli-
very at certain stated intervals. On failure by
the defendant to take delivery, the plaintiffs
brought a suit for breach of the contract, esti.
iting the damages at the difference between
the contract price and the market prices on the
days when the defendants ought to have taken
delivery. It was proved that the plaintiffs
had the goods in their possession, but
that they could have obtained them from a third
person with whom they had a contract, and it
as found that they were ready and willing to
iliver them at the times contracted for.
The Lower Court held that the measure of
damages was the difference between the con-
tract price of the bags, and the amount which
it cost the plaintiffs under their collateral con.
tract to procure and deliver them.
Held on appeal, reversing the decision of the
Court below, that though it was right to in-
quire into the arrangements between the plain-
tin's and the person with whom they had their
collateral contract for the supply of bags, in or-
der to ascertain whether the plaintiffs were
ready and willing to deliver the bags ; yet on
that question being decided in their favour, the
terms of that arrangement did not effect tho
question of damages as between the parties to
the suit ; and that the plaintiffs were entitled to
mortized by Google
DIGEST OF CASES.
DAMAGES- contd.
recover, according to the ordinary and well estab-
lished rule in cases of a breach of contract to
take delivery of goods, the difference between
the contract price and the market prices at the
dates of failure by the defendant to take delivery.
Cohen 0- Casscm Nana. Garth, C.J., and
Pontifix,] LL.Rep. 1 CaL 364, 1876.
4. i Measure of Damages — Conversion of
Timber— Cost of Conveyance to Starlet.] In
estimating the damages for the conversion of
plaintiffs goods, the value of the goods at the
place where the principal market for them ex-
ists, is the right basis of calculation ; but there
must be deducted from the price at which they
could have there been sold, the cost of convey-
ing them thereto.
Morgan v. Powell (3 Q. B. 278) approved.
Bukhaii Trading Corporation, Limited, 9.
Mirza Mahomed Ally Sherazee...L. Rep.
5 L A. 130, 1878'; I. L. Rep. 4 Cal. 116.
S.C under Principal anil Agent. 1.
8. For Arrest — Reasonable and Probable
Cause— Ait VIII. of 1S59, f 201.] A suit to re-
cover damages on account of injuries caused by
an arrest in accordance with an ex-parte decree
of a competent Court can only be maintained
under special circurnslances — >(*., the plaintiff
must show — 1st, that the original civil action
out of which the alleged injury arose has been
decided in his favour , sndly that the arrest was
procured maliciously and without reasonable
and probable cause; and ydly, thai the injury
or damage sustained was something other than
that which has or might have been compensated
for by an award of costs of suit, i.e., that the
plaintiff has suffered some collateral wrong.
Possession of property by the judgment-debtor
does not make it wrongful In the creditor to
arrest his debtor in execution of a decree.
Section 201 of Act VIII. of 1859 gives an option
to the creditor of enforcing the decree either
against the person or the property of the debtor,
tnd the fact that the decree is an ex-parte decree
lakes ;
. differ,
Where the plaintiff must show an absence of
reasonable and probable cause, malice alone is
not sufficient to entitle a plaintiff to a verdict.
If a person has reasonable and probable cause
for asserting a legal right he cannot-be sued for
setting the law in motion to enforce that right,
however vindictive may be his feelings against
DAMAGES -contd.
lis adversary. A Court is not warranted is
nferring the absence of probable cause from the
fact that enmities or malice existed between the
parties. Raj Chvmoer Rot ■. SkamaSundaki
Dew. While and Tottenham, J J ...I. L. Rap.
4 Cal. 688.
DAK-DTJPAT— Rule of— not applicable to
See Hindu Law- Inter oat, 3.
Balkrishna 1. GOPAL...I. L.Kep.
1 Bom. 78.
- Rule of — Applicable to Mortgagees.
See Hindu Law— Intereat. 3.
RamcHandra v. BHIMRAV...I. L.
Rep. 1 Bom. 677.
See Alignment of Mortgage.
Ganpat Pandurang O. A DAK] I
Dadabhai ..L L. Hop. 3
Bom. 313.
See Hindu Law— Interest. 1.
Nanchand n, Bapu Saheb ..L Ih
Bep. 3 Bom. 131.
Role of — not Applicable to Suits in Bengal
Mofussil-
See Interest. 4.
DbbnDovalv. Kylas Chunder.
I. L. Bep. 1 CaL 08.
DANCING GIRL- Dedication of.
See Penal Code, f 373.
Rao. 9. A run a Chellah.,,1. L.
Bep. 1 Mad. 164.
Right of — to Exclusive Dedication of.
See Immoral Custom.
Chinna Uhhavi jr. Tegarai
Chktti.,,1. L. Bep. 1 Med.
168.
1. Suit by— to establish Mirasi Sight
—Hereditary Office.} The plaintiff sued to
establish her right to the mirasi of dancing girls
at a certain pagoda, and to be put in possession
of the mirasi, with the honours and perquisites
attached, thereto ; and she alleged that the de-
fendant, the Dharmakarta of the pagoda, wrong.
fully dismissed her from the office, because she
refused to acquiesce in the admission by him of
new dancing girts into the pagoda service, of
which she claimed the monopoly for herself and
the then existing families of dancing girls. The
D,gltlzed by G00gle
DIGEST OF CASES.
DANCING GIBL-w«W.
defendant denied that the plaintiff had an/
mirasi to the office of dancing girl, which office,
however, he admitted that the plaintiff had held
for £2 years, and claimed ft right as dharma-
karta to appoint and dismiss pagoda servants at
will, and alleged that the admission by him of
the new dancing girls complained of by the
plaintiff in no way interfered with the plaintiff's
rights, if any such existed. The District judge
dismissed the suit on the authority of Ckinna
Ummayi v. Ttgarai Chetii (I. L. Rep. I Mad.
168) :—
Held, that the present case was distinguish-
able from Chinna Ummayi v. Ttgarai Chetii (uii
supra), in that there was no allegation in that
case of any endowment attached to the office.
The question of the existence of such an here-
ditary office as that claimed in the present suit,
with endowments or emoluments attached to it,
ought to be inquired into, as that would materi-
ally affect the question whether the plaintiff
had sustained injury by the defendant's inter-
ference. Kamalam v. SaDAGOfA Saw. Morgan,
C.j.,and Innes, J...L L. Bep. 1 Had. 366,
1878.
DANGEROUS GOODS— Duty of Persons
sending — to Carrier.
See Negligence.
L vell u. Ganga Dai. ..I. L. Rep.
i aii. eo.
DABPATNI— Refund of Bonus.') The de-
fendants, after purchasing a patni taluk at an
auction sale for arrears of rent under Beng.
Reg. Till, of iSig, granted a darpatni lease to the
plaintiff (the former darpalnidar), and re
a bonus of Rs. 1,199. Thc ,ea5e COIlt3
stipulation that if the patni tenure should
time lapse through the default of the defendants,
the bonus should be refunded by them
plaintiffs. The auction sale to the defendants
was subsequently set aside. The result was
that the plaintiffs reverted to their former posi-
tion of darpatntdars under the former patnidars,
though they were not dispossessed : —
Held, that the plaintiffs were entitled to a
refund of the bonus. The special stipulation
for the refund in the particular contigency,
which had not happened, of the patni tenure
lapsing through the defendant's default, did not
deprive them of this right.
Though patnis, darpatnis, and sepatois may
not be in strict analog; with leases in England,
DABPATNI-«»W.
1 they contain in themselves sufficient of the
, nature of a lease to incline the Court to give the
grantee or taker, in cases where it is otherwise
equitable, that protection which a lessor in
England is understood to guarantee his lessee for
possession of the land. Takackand Biswas 0.
Rah Gobind Chowdhry. Jackson and Mc-
Donnell,)]...I. I,. Bep. 4 Cal. 778; 4 Cal.
Bep. £0, 1879.
S. C. under Landlord and Tenant. 7.
DABIS— Dedication of.
See Immoral Custom.
Chinna Uiimavi cTegabaiChst-
ti...L L.Bep. 1 Mad. 188.
See Penal Code, § 373,
Reg. v. Aruna Chbllak ..I. L.
Bep. 1 Had. 104.
DASITUTRA.
See Hindu Lav— Inheritance-
Illegitimate Son. 4.
Rah: *, Govind...L L. Bep. 1
Bom. 97.
DASTUBI— Acceptance of— by Public Ser-
See Fenal Code, § 160.
Empress e. Kahfta Prasad..,
I. L. Bep. 1 Alt 080.
SATE 07 PUBLICATION 07 NOTICE
OF BALE 07 PATNI TENURE
FOB ARREARS OF BENT.
See Beng. Beg. VIII. of 1819, § 8,
OLfl.8.
Matunoee v. Moorbarv...I. L.
Bep. 1 CaL 176.
DATTAXA MXMANBA.
See Hindu Lav— Authority of
Writer*. 1.
DATTAXA CHANDBDXA AND DAT-
TAEAHIHANSA.
See Hindu Law— Authority of
Writers. 0.
Mvrarji*. Pabvatibai I. L.
Bep. 1 Bom. 177.
D.gmzed by GoOgle
(
)
DIGEST OF CASES.
DAUGHTER— Indigent Childless Widow-
Right of— to inherit Father's Estate-
Benares Law.
Set Hindu Lav — Inheritance—
Daughter. 3.
Shrimati Uma Devi o. Gokool-
ahand .L.Rep. 01. A. 40;
I. L. Rep. 3 Cat. S87.
— — Succession ol — inter »t.
Set Hindu Law — Inheritance —
Daughter's Bona. 3.
Baijnath t>. Mahabir I. L.
Bap. i All. eoe.
DAUGHTER'S ESTATE — Succeeding to
Father— Absolute.
Set Hindu Lav — Inharitanca —
Daughter. 1.
Haribat v. Dakobarbhat I.
L. Rop. 3 Bom. 171.
DAUGHTER'S INHERITANCE FROM
HER FATHER IB NOT STBI-
DHAN.
See Hindu Lav — Inheritance —
Daughter. 4.
Ckotay Lall v. Chunnoo Lall.
L. Rep. 6 X. A 13 ; L
L. Rep. 4 Cal. 744.
DAUGHTER'S SUCCESSION BY SUR-
VIVORSHIP HOI DEFEATED
BY BECOMING A CHILDLESS
WIDOW.
See Hindu Lav — Inheritance —
Daughter. 3.
Auritolall e. Rajonbskant...
L. Bep. 3 I. A. 113.
DAUQHTBB-XN LAW— Right of—to Main.
tenance from Father.in.Law.
See Hindu Law -Maintenance of
Widow. 8.
GAMCA B*l v. StTAHAH I. L.
Rep. 1 AIL 170.
DAUGHTER'S SON— Adoption of— void
among Brahman;, Kshatryas and Vaisyas
— Lingayets are Sudras.
Set Hindu Lav— Adoption. 6. 7.
Go pal o. Hanuant ...I. L. Rep.
8 Bom. 273.
Bhaoirthibai «. Radhabai...
Ibid. 998.
DAUGHTER'S SON— contd.
Adoption of — Valid among Jains.
Set Jain Lav. S.
Sbeo Sikoh Rai ■
Dakho...L. Rep. 0 I. A. 87;
L L. Rep. 1 All. 088.
— — Right of— to succeed to Maternal Grand.
father's Estate— excluded by Daughter.
Set Hindu Law— Inheritance—
Daughter's Son. 1. 9.
AmKJTOI.ALL S. RaJONEEKANT ..L.
Rep. 3 I. A. 113.
Baunath b. Mahabir I. L.
Bep. 1 AIL SOS.
DEATH- Presumption of.
See Evidence. 91.
PaRMHSHAKD. BlSHESHAR ..I. L.
Rap. 1 All. 63.
DEATH OP APPELLANT— Effect of.
See Abatement of Appeal— Civil. 1.
MORBSHWAR r. KlPSHABA ...I. L.
Bep. 3 Bom. 348.
DEATH OP APPELLANT CONVICT-
Effect of.
See Abatement of Appeal —
Criminal. 1.
I mm. v. Dokcaji... I. L. Rep. 3
Bom. 684.
DEATH OF DEPENDANT— Order on-
Reviving Decree against a Person not
the Legal Representative of Deceased —
See Stat. 34 and 96 Vict., 01. 104.
5 IS. 7. 8.
Pooost v. Ca re hick... I. L. Rep.
3 Cal. 708.
P.N.Pogom..XL. Rep. SCal.
710, n
DEATH 07 JUDGMENT - DEBTOR—
Effect of— on Sale of Share of Deceased
Judgment Debtor.
See Hindu Lav— Alienation of
Ancestral Property. 4.
Suraj BuNsr Koee v. Shro Pir.
shad Singh... L. Bep. 8 I.
A. 88.
DEBENTURES,
Set Contract. 8.
Port Canning Land, &C, Co. *.
Smith L. Bap. 1 I. A.
184 ; L. Bap. 5 P. 0. 114.
D,gltlzed by G00gle
( «1 )
DIGEST OF CASES.
DEBT— ASSIGNEE OF— by Devise— Right
of Representative of — to sue without
Probate or Certificate under Act XXVII.
of i860.
See Assignee of Debt.
ShODONE «. HALALCORE...L Xl.
Rep. 4 CaL 645.
DEBTS 07 DECEASED HAHOHE-
DAN.
Set Jffahomedan Law— Right of
Creditor to follow Estate of
Debtor into the hands of
Purchasers from Heir.
B AZ A vit H ossein «. Dot)!, i Ch u nd.
L L. Rep. 4 CaL 402.
DEBTS INCURRED BT MANAGER,
OF JOINT FAMILY IN CARRY-
ING ON THE JOINT ANCES-
TRAL TRADE.
See Hindu Law— Maintenance of
Widow. 9.
JOHUKRA BlBEE >. SrEEGOPAL
Missbk.,,1. L. Rep. 1 Cal.
470.
Sn Hindu Law— Ancestral Trade.
JOTKRISTO COWAB V. NlTTYAWUNt)
Nundy...L L. Rop. 3 Cal,
73S.
DECISION ON ONE OF SEVERAL
ISSUES— Appeal from.
Set Letters Patent (186 B), f 16
(Calcutta).
Khrahim v. Fackrunnissa Be-
gum...!. L. Rep. 4 CaL
531.
DECLARATION OF RIGHT TO PRO-
PERTY ATTACHED- Court Fees
on Suit for.
See Court Fee*. 1.
Gulzaki Mai. 0. Jadaun Rai...L
L. Rep. 8 AIL 63.
DECLARATION OF TITLE- Adverse Pos-
session for la Years justifies, though ■
Specific Title also alleged, but not proved.
See Declaratory Decree. 0. 6a. (J
Shivo v. Govind...I. L. Rep. %
CaL 418.
Goluck CKUHDBB v. Nil moo
Cohak...I. L. Rep. 4 CaL -
698.
GOMAIH*. IMC* CHVM9U...X. L.
Bap. 8 CaL 884.
DECLARATION OF TITLE— contd.
Suit for— by Person in possession of Land.
See Declaratory Decree. 13.
PORAN SflOKH V. PARBUTTY...L
L. Rap. 3 Cal. 613.
DECLARATION OF ZBVTNDARI
RIGHTS TO CESSES AND COL-
LECTIONS-Suit for.
Sir Declaratory Decree. 18.
Akbar Khan 1. Sheo Ratam...
L L. Rep. 1 All. 378.
DECLARATORY DECREE— Court Fees
on Suit for.
See Court Pees. 1. 10. 11.
Gulzaki v. Jadaun... I. L. Rep.
8 All. 63.
Manohak v. Bawa...L L. Rep.
3 Bom. 319.
Chunia v. Rahidial.-.L L. Rep,
1 AIL 360.
Court Fees on Suit for— by Person against
whom Order is passed under Act VIII. of
i8j9, \ 246.
See Court Fees. 11.
Chunia «. Rai»dial...I. L. Rep.
1 All. 860.
- Of Defendant's Liability to account.
See Court Feea. 10.
Manohak e. Bawa Ramcharan-
DAs...lL.Bap.3Bom.319,
- Discretion of the Court.
See Declaratory Decree. 0. 16.
And see Ree Judicata. 4>
ttkait doorga pbrshad v.
TekAItni DoorqA Konwali.
L. Sep. 8 I. A. 149 ; I.
L. Bep. 4 Cal. 190.
- Of Heirship to Hindu Widow.
See Jurisdiction. 19.
Bai Makhor *. ButAKHi...LL.
Rep. 1 Bom. 638.
And tee infra, 7.
- Of Invalidity of Adoption.
See Limitation. 97.
Kalova ». Padapa.-.L L. Rep.
D.gmzed by GoOgle
DIGEST OF CASES.
(
)
DECLARATORY DECREE- centd.
— — Right to graze Cattle in Village Grazing
Grounds.
See Eight of free Pasturage.
Collector of> Thana v. Bal Pa-
ul...!. L. Rep. 3 Bom. 110.
Of Right to Office of Hereditary Kazi,
SffKiid, 1.
Jahal*. Jahal I. L. Rep. 1
Bom, 633.
Of Right to Officiate as Hereditary Officer.
See Declaratory Decree. 17.
Chinto v. Lakshmibai I. L.
Rep. 9 Bom. 870.
Of Right to Officiate as Sole Representative
of a Watandar Family.
See Declaratory Decree. 18.
Khahoo «. Apaji ..L L. Rep. 2
Bom. 870.
Of Right to Share in Patilki Vatan.
See Declaratory Decree. 18. 90.
■ Suit by Heir for Confirmation of Possession
and Setting aside Deed— Proof of Heir-
ship and Invalidity of Deed — Failure to
prove Possession.
See Betting aiide Deed.
Tacoordeen Tewarrv «r. Nawah
Syed Ali Hossein Khan..
L. Rep 1 1. A. 189.
1. Act FW/.o/ 1859,115— Consequential
Kelief.'] A suit by a plaintiff, in receipt of the
rents and profits, for possession of a share .of
certain mouzahs, under a mil title, "by setting
aside the false mogolee bromutlur title stated by
the defendants";— Held, not to be maintainable,
it being in substance a suit for a declaration of
title, and to set aside not any deed nor any act,
but a mere allegation of the defendants that
they had a certain tenure, and one in which,
therefore, no relief could be granted. Section
15 of Act VIII. of 1850 gives a right of obtaining
a declaration of title only in those cases where
the Court could have granted relief if relief
had been prayed for. Rajah Nilmony Singh
v. Kalli Churn Battachariee...L. Rep. 9
L A. 83; 14 Bene>. L. R.
382 ; 93 W. R. 180, 1874.
8. Act Vttl. 0/1859, I IS— Consequen-
tial Relief— Watte by Widow-Suit by Rever-
sionrr.} In a suit by the respondent foradecla.
DECLARATORY DECREE- centd.
ratory decree to the effect that he was entitled as
next heir after the death of the first appellant to
the Skevagunga zemindary. for immediate part
possession and management thereof, for mainte-
nance and other relief in respect of waste coot'
mitted by several of the appellants, the Courts
in India held, after the case with regard to re-
lief had totally failed, that the respondent was
entitled to a decree declaratory of his title as
heir nezt. Held, by the Privy Council, th»t
such decree must be reversed. The application
of i 15 of Act VIII. of 1S50, must be governed
by the same principles as those upon which the
Court of Chancery in England proceeds in re-
ference to Stat. 15 and 16 Vict., Ch. 86, J 50,
with such slight qualifications as may be re-
quired by the different circumstances of India,
and the different constitutions of the Courts in
that country.
A declaratory decree cannot be made unless
there be a right to consequential relief capable
of being had in the same Court, or, under spe.
cial circumstances as to jurisdiction in some
other Court.
The fact that the first appellant (a Hindu
widow in possession of the zemindary), favour-
ing the second appellant's title, had employed
an agent, and executed a power of attorney to
him, for (he purpose of assisting the second ap-
pellant to possess himself of the zemindary, and
withhold possession after death, held to be no
ground for making a decree declaratory of the
plaintiff's title.
The plaint having originally made a case of
waste against the first appellant, and it being
argued at their Lordships' bar, that it was ne-
cessary that the right of the respondent as
nearest reversioner should be ascertained, to
ipport such suit, and that if the suit had been
tried out as it was framed at first, there would
have been a case for consequential relief, their
Lordships (after disposing of the argument by
reference to the conduct of the respondent in
the Lower Courts) say, p. 191 :— *' The argu-
s now under consideration are founded on
the right of a reversioner to bring a suit to re -
1 a Hindu widow or other female in posses-
from acts of waste, although his interest
during her life is future and contingent. Suits of
that kind form a very special class, and have
been entertained by the Courts ex necessitate
■ei. It seems, however, to their Lordships
that if such a suit is brought it must be brought
boozed by Google
DIGEST OF CASES.
DECLARATORY DECBEE— ctmtd.
by the reversioner with that object and for
that purpose alone, and that the quest!
be discussed is solely between him and the
widow; that he cannot by bringing such
suit, E'-t, as between him and a third party,
adjudication of title which he could not j
without it. Here if the plaintiff had brought his
suit to restrain the widow from acts of waste, he
might, no doubt, have had to prove, not merely
the acts of waste alleged, but a title sufficient
to give him a locus standi in Court. Their Lord-
ships are not prepared to say that by showing
that he was a grandson of the istitnrar zemindar,
although a doubtful question might arise there-
after between him and the second defendant as to
which should succeed to the zemindary, he wouli
not have established a sufficient locus stand
against the widow, and the right to have he
acts of waste restrained for the protection of the
estate ; but even if he had proved acts of wash
against the widow, that would not have given
him a right as against the second defendant
to have the question which arises between
them determined by a declarator. Strimathoc
Moothoo Vijia Raooonathah Rahbb Kolan-
dafurbe Natchiar v. Dorasinoa Tevbr...L.
Bop. 2 I A. 169, 1975 ; 15 Beng. L.
Rep. 83 ; 2SW.E, 314.
3. Consequential Relief— Court Fees' Act
VIZ. 0/1870,, 13— Amendment of Plaint.'] The
plaintiff sued on a stamp of Rs- to for a declara-
tion of his title to land worth Rs. 19,000 in the
possession of the defendant, and for the can-
cellation of certain proceedings by the demar-
cation officers whereby the land in dispute had
been, as the plaintiff alleged, improperly de-
marcated, so as to include them in the lands of
the defendant The defendant, among other
defences, denied that the lands had ever be-
longed to the plaintiff. The Lower Court dis-
missed the suit as improperly stamped, holding
that it was not a suit for a declaratory decree
Held, that if the plaintiff had merely com.
plained of errors of demarcation, his prayer for
a declaration of title to land alleged to have
been erroneously omitted from his land by the
demarcation officers would have been correct in
form. But the plaintiff sued for a declaration of
title to landsworth Rs. 19,000, which had been
in the undisturbed possession of the defendant for
several years, the object of the suit plainly being
DECLABATOBY DECBEB- tontd.
to get possession of the land by way of declara-
tion, and thereby deprive the defendant of the
benefit of pleadings open to him in an ejectment
suit, which was the proper form in which the
plaintiff's claim should be brought forward.
The provision as to declaratory suits requires
great care and circumspection in its application,
and should not be entertained where the object
is to defeat the stamp laws, or to throw difficul-
ties in the adversary's way by preventing his
raising questions which would be fairly open to
him in an ejectment suit, but which are irrele-
vant allegations in a suit simply for a declara-
tion of title. The suit, therefore, was rightly
dismissed.
Held also, that though the law allows a plain-
tiff who has paid an insufficient stamp-duty in
some cases to rectify his mistake, this privilege
is subject to qualification. Whereby mistake or
miscalculation, a plaintiff undervalues his claim,
he ought to have an opportunity of putting in
the additional stamps. But there is not the
same privilege where the relief to be granted is
altogether distinct from that originally sought.
An application to allow the plaintiff to put an
additional stamp on his plaint, and go on with
thesuitas an ejectment suit, was therefore refus-
ed. Chokalinga'peshna Naickbr v. Ac hi yah.
Hollowqy and Kinderslty, JJ L L. Bop. 1
Mad. 40, 1875.
4. Consequential Relief.'] The defend-
ant, the purchaser at an auction sale in execu-
tion of a decree against the deceased zemindar of
S., of the right, title and interest therein of the
nder, obtained delivery in the usual
form under { 264 of Act VIII. of 1859, procla-
being made to the ryots that the rights
of the late zemindar rested with the defendant.
The defendant also issued, and sent into all the
illages in the zemindary, notices and orders to
all the kamams stating that he had purchased
the whole zemindari, and was coming to distri-
bute the pattas, and that all accounts should be
submitted to him, and the rents be paid to his
igent only. In consequence of these acts some
few of the ryots refused to take their pattas, or
ithheld their rents from the plaintiff, the
successor of the late zemindar. The plaintiff
also applied to the Collector to be registered as
lindar. In a suit by the plaintiff, who was in
possession of the zemindari for a declaration
that the right, title and interest of the late
D,gltlzed by G00gle
( «7 )
DIGEST OF CASES.
( «8 J
DECLARATORY DECREE- -can id. •
icmindar purchased by the defendant extended
only to the rents and profits due From the zemin
tothedeceasedzemindarat the date of bis death,
and that the defendant had no right . to the ze-
min ; and foran injunction to restrain the defend-
ant from disturbing the plaintiff's enjoyment : —
Held, that the true construction of f. 1 5 of Act
VIII. of 1859, and the effect to be given to it must
be considered as now settled by the decision of
the Privy Council in Kalkama Nauchiar v. Do-
rusinga Tenet (I. Rep. 2 I. A. 163; 15 Bcng. (.,
Rep. 83). It was there determined that a decla-
ratory decree cannot be made unless there be a
right to consequential relief capable of being had
in the same Court, or, in certain cases, in some
other Court. If, therefore, the case stated is one
in which no relief could be given, if asked for,
the Court should make no decree declaring
lights; nor should any decree be made unless
the relief capable of being given is consequential
relief. The mere fact that some infringement of
the proprietary right or title may have taken
place, which, under certain conditions, might
confer a right of suit for damages is m
cient to support a suit of this descriptioi
decree, therefore, of the lower Court granting the
plaintiff a declaration, was reversed, on t!
ground that it was a declaratory decree given
a case in which no consequential relief could
have been granted if asked for. The plaintiff
proved no actual injury, and no apprehension of
such injury as to justify a prayer for relief.
Sini Thiruvrngadathiengar v. Sangiuveer-
*pfa P. Chinnathahbuk. Morgan, C.J., and
Holiday, J......I, L. Hep. 1 Mad. 68, 1876.
S. Consequential Relief— Act VIII. of
1859,} 'S-] vl granted a lease of hisentire pro-
perty to the plaintiff for a term of years, with
power to enhance the rents and make settle.
ments. Immediately after, A. executed a pottah
to £., covering a portion of the same estate,
whereby B.'s rent was to remain unchanged for a
period conterminous with the plaintiff's lease. In
a suit by the plaintiff against B. and A.'t repre-
sentative to set aside the pottah, it was objected
that the plaintiff had no cause of action,
much as the pottah had not yet been !
against him, nor was any injury shown to have
been occasioned to him thereby : —
field, that the suit was maintainable, li
laying down the rule in Strimathoo Mothao Vijia
Ragoonadah v. Doratinga Tever (15 Beng. I..
DECLARATORY DECREE <«U.
Rep. 106), that " a declaratory decree cannot be
made unless there be a right to consequential
ilief capable of being had either in the same
Court, or, in certain cases, in some other Court,"
Privy Council did not intend to deny to the
Courts in India the power to grant decrees in any
case, in which, independently of the provisions
itained in f 15 of Act VIII. of 1859, those
Courts have power to grant a decree. In the
High Courts that power is generally the same as
that of the Court of Chancery in England. That
s the power of the Supreme Courts, and
s extended to the High Court. There is
valid ground for holding that the Courts in
the Mofussil have a jurisdiction in this respect
different from or less than that of the High
Courts. At any rate, in the absence of all special
provision or authority on the subject, it Would be
difficult to suggest any other guide than the
practice of the Court of Chancery in England,
according to which such a suit as this was main-
tainable. Rah Nebdheb Koondoo v. Rajah
Rughoo Natk Narain Mullo. Atarkby and
McDonnell, JJ..X L. Rep. 1 CaL 406, 1876.
See Limitation.. 68.
Fakharoodeen M. Hossain v.
P0GOSE...I. L. Rep.4Cal.
809.
6, Declaration of Title— Advene Pos-
tssion.~] A declaration of title may be made
n proof of adverse possession for twelve years,
lthough the title has not been based on that
ground in the plaint, provided that the plaintiff
has drawn the attention of the defendant to the
fact that he is going to claim a declaration of
title on such adverse possession, and that the
question of such adverse possession has been
clearly raised in the issues.
Tirumalasami Reddi v. Ramasanti Reddi (6
Mad. H. C. Rep. 420) dissented from. Ram
Lachun CJiuckerbutfy v. Sam Soondur Chudter-
iutfy, 3o W. Rep. 104) followed. Skiro Kirn-
ari Dbbi *, Govind Shaw Tahiti. Markby and
Prinsep, JJ I. L. Rep. 3 Cat 418, 1877.
6a. Specific Title — Adverse Possession.]
A distinction exists between cases where the
plaintiff sues for a decree, declaring himself to
be the owner of property on the strength of
some particular title, and cases where he claims
generally the possession of land under some
alleged title, but coupled with a p
D.gmzed by G00gle
( MB )
DIGEST OF CASES.
DECLABATORY DECBiEE— contd.
tending over twelve years or upwards. In the
first class of cases be is not entitled to a decree
declaring him to be the owner by virtue of the
particular title, unless he proves that title.
But in the latter class of cases, whether be
proves the origin of his title or no, if he can
show a twelve years' continuous adverse pos-
session as against the defendant, that is suffi-
cient by the law in India to give him a title of
itself.
Gossain Dots Guilder v. Issur Chnnder Nath
(I. L. Rep- 3 Cal. 325) followed. Goluck
CHL'NDKK M ASA NT A v. NUHDO COOHAR RAI.
Garth, C.j., and McDonnell, J...L L. Bep. 4
Cal. 699, 1878.
6b. Title— limitation.] Twelve years'
continuous possession by a wrong-doer not only
bars the remedy and extinguishes the title of
the rightful owner, but confers a good title upon
the wrong-doer. Where a plaintiff seeks I
recover possession of property of which he hi
been dispossessed, and bases his claim on tl
ground of purchase, and also on the ground of
a twelve years' possessory title, be is entitled
succeed if he proves his possession, even if he
fails to prove his purchase.
Although it may be doubted whether the law
as laid down by the Privy Council in Gunga
Gebind Mundul v. Collector of the 1\-Purgt
nahs (11 Moo. I. A. 345) was meant to have
the extended operation of enabling the title of
the wrong-doer to be transferred to a third
son, whilst it is in the course of acquisition, and
before it has been perfected by a twelve years'
possession, yet such a construction of it tends to
convenience in this country, and the High Conrt
was not disposed to question its correctne
applied to the present case. Gossain Dass
Ch under v. Issue Chunder Nath. Garth,
C.J., and Birch, J I. L. Bap. 3 OeX 224,
1877.
7. Suit by Rnersiener,~\ The plain.
tiff's mother was entitled to certain property for
her life under an award under which the plain-
tiff was entitled to succeed to the property after
her mother's death. The plaintiff sued her
mother and the holder of a decree, in executi
of which tbe property had been sold, pray i
for a declaration of her right to succeed to the
property, and that tbe said decree might be
declared void against her; alleging that
DBCUULAIOBT DECREE- «««.
Held, that the suit was maintainable, under
the ruling in Kattama Natchiar v. Dorasinga
Tew (15 Beng. L. Rep. 83: L. Rep. a I. A. 169)
which expressly excepted the case of a suit
brought by a Hindu reversioner from the opera-
tion of the general rule that a declaratory
decree should not be granted where no right to
consequential relief is involved. UusamaT
Jaqeski Kuar v. Rah Nath B hag at. Stuart,
C. J., and Turner, J...I. L, Bop. 1 All. 371,
1877.
8. Beng: Reg. Vlll. of iSai, § 9, Q. 1—
Act XIX. of 1873, f (A— Declaration of Zemin-
dar's Right to Cesses and Collections— Jurisdic-
tion.] A Civil Court is not precloded by the
terms of Beng. Reg. VIII. of iSas, } 9, CI. 1,
from inquiring into and declaring a right on the
part of the zemindar to cesses and collections,
although not avowed and sanctioned, not taken
into account in fixing the Government Jama at
the time of settlement, notwithstanding that till
so avowed and sanctioned they cannot be col-
lected by the xemindar, and there is nothing
in §66 of Act XIX. of 1873 to a contrary
effect. Akbar Khan c Sheoratan. Stuart,
C.J., and Oldfield, J L L. Bop. 1 All
373, 1877.
8. Discretion — Remand,'] Since a de-
claratory decree is a matter of discretion, a claim
for a declaration ought not to be remanded by
an Appellate Court for further inquiry, which
is likely to entail expense and delay, where the
plaintiff's claim is contingent on his surviving
the defendant, and where the declaration will
not be binding on parties with possibly preferen-
tial titles who have not been joined in tbe suit.
DOORGA PBRSAD SfNliH V. DOORGA KONWABl...
I. L. Bep. 4 Cal. 190, 1878 ; L.
. Bep. 6 I. A. 149.
S. C under Bea Judicata. 4.
10. Suit for — Malabar Lou— Kamavan
Lands acquired by Member of Malabar Tarwad.]
In a suit brought to obtain a declaration that
the land mentioned in the plaint formed the
common property of the tdm&d, of which the
plaintiff was the present karnaoan, and to have
the revenue registry of those lands transferred
to his name, the plaint alleged that the lands in
question were the private acquisitions of three
of the deceased members, of tbe tdrw4d, of whom
D.gmzed by G00gle
{ «1 )
DIGEST OF CASES.
DECLARATORY DE CR'ES—can td.
the last, in whose name the land was last assess-
ed, on becoming karnavan, applied to the Sub-
Collector to have the registry oE those lands
transferred to the names of his own nephews,
the first and the second defendants ; that the
plaintiff protested against the proposed transEt
and was referred by the Sub-Collector to a Civil
Court to obtain a declaration that the registry
could not be so transferred. The Revenue
authority was not made a party to the suit.
Held, that the plaintiff was entitled to have the
declaration prayed for, as it would enable him to
go to the Collector for substantial relief iu the
shape of registration in his name; but the relief
sought, in the shape of the transfer of registry
to his name, could not be granted, the Revenue
authority not being a party to the suit. Chan.
dv v. Chathu Nakbiab, Morgan, C.J., and
/«««,] I. L.Rep.l Mad. 881, 1878.
U. Act VIII. 9/1859, § IS— Consequen-
tial Relief.} " Their Lordships desire to adhere
to the opinion declared in several decisions of
ftis Board, that § 15 of Act VIII. of 1859, re-
lating to declaratory decrees, ought to receive
the same construction as § 50 of the English
Act, 15 and 16 Vict., C 86, which is similarly
worded, has received from the English Courts.
A declaratory decree ought not to be made
unless there is a right to some consequential
relief which, if asked for, might have been given
by the Court, or unless in certain cases a decla-
ration of right is required as a step to relief in
some other Court.
" The question whether a right to some con-
sequential relief exists must therefore arise in
all suits in which a declaration oE title is sought.
A right to come to the Court to have a docu.
merit or act which obstructs the title or enjoy-
ment of property cancelled or set aside, or for
an injunction against such obstructions, would
be sufficient to sustain a declaratory decree."
Upon the death of the grantee for life of a
zemindari, his widow, the respondent, purchased
the same from Government. The Settlement
Officer (in excess of his powers) while making
up the Wajib-ul-urz, called on the respondent
to name her successor in order to enter his
name in the paper. The respondent requested
that the name of her adopted son might be so
entered, but on the appellant's objecting to this
being done, on the ground of the invalidity of
the adoption by the widow, the Settlement
DE0LABATOBY DEOBEE-cwiW.
Officer referred the parties to the Civil Court
for the determination of the validity of such
The respondent thereupon filed a suit, to
which the adopted son was afterwards joined as
co-plaintiff, claiming to be maintained in pos-
session " by establishment of plaintiffs exclu-
sive right of inheritance to the estate of her
deceased husband, and to uphold the adoption
of her daughter's son, as well as his right
permanently to succeed after her death, by
voiding the defendant's pretensions under the
customs and usages of the Sarogi religion."
The appellant by his written statement denied the
validity of the adoption, and set up a nuncupative
will in his favour by the respondent's husband. It
being contended on behalf of the respondents
that the intervention of the appellant in the
proceedings of the Settlement Officer, and his
objection to the entry of the name of the first
respondent's adopted son, on the Wajib-ul-urz,
on the ground that the adoption was invalid, was
an act of obstruction against which she was enti-
tled to relief ; their Lordships said, " IE it had
been shown that the entry thus objected to had
been necessary to the settlement of the mouzah,
or the completion oE the title, or the right to
present possession, the contention might have
been well founded. But this has not been
shown. It would seem that the mouzah had
been already granted by the Government to the
first respondent, and she had been already
recorded as proprietor. The object of the paper
(the Wajib-ul-urz) appears to be to record pecu-
liar customs for the information of the Settle-
ment Officers ; and although the Deputy Collec-
tor asked for information as to the first respond-
ent's successor, and, upon the appellant's objec-
tion to the entry of the adoption, placed his
objection on the Wajib-ul-urz, and referred the
parties to a Civil Court, their Lordships would
have felt great difficulty, to say the least, if it
had been necessary to give a decision on this
point, in coming to the conclusion that these
proceedings were such an obstruction to the
title or right of possession as would sustain the
decree. As to the other ground on which it was
alleged that the plaintiffs (respondents) were
entitled to relief, 111., that the appellant had put
forward a nuncupative will of his deceased bro-
ther by which he was made the proprietor oE
the estate, and that the plaintiffs (respondents)
were entitled, if they had asked for it, to a
D.gmzed by G00gle
DIGEST OF CASES.
DECLARATORY DECREE- -contd.
decree annulling the nil) ; their Lordships said,
" It would probably not be disputed that if a
fictitious will in writing be set up, upon a proper
case being made, the plaintiffs might claim to
have the document cancelled, and their Lord-
ships are not prepared to say that, in cases
where property may legally pass by an oral will
an analagous right to have it declared null may
not exist. A claim under such a will is not
a bare assertion of title, but the setting up of a
specific act by which title to property may be
conferred. The reasons, too, for giving such
relief in the case of written wills would seem to
apply to nuncupative wilts, and one of them, the
probable death of witnesses, with even greater
force to the Utter than the former. Sheo Singh
Rai v. Mussumut Dakhc.L. Rep. 6 I. A.
87, 1878 ; 7. L. Rep. 1 All. 698 ; 2
C&l Rep. 188.
S. C. under Jain Law. 2.
Practice— Privy Council. 9.
IS. Cancellation of Document— Void Do-
cument— Apprehension of Injury^ In a suit for a
declaration that a certain document, purporting
to be an acknowledgment by the obligee of a
bond of the receipt of money from the obligor in
part payment thereof, was not a genuine docu-
ment, the plaintiff alleged that the document
had been fabricated with the object of reviving
the right of suit on the bond, which, being dated
the 6th of November 1856, was barred by limi-
Held, that the receipt contd not be used for the
purpose apprehended by the plaintiff. To sup-
port a plea that a new period of limitation had
accrued from part payment of principal, the fact
of payment must appear in the handwriting of
the person making the same on the instrument
on which the debt arose, or in his own or the
creditor's books. The plaintiff, therefore, could
not be held to have reasonable ground to appre-
hend injury from the document, and his suit was
not maintainable. Shib Lal v. Hika Lal.
/Vanon and Turner, JJ..X L. Rep. 1 All. 639,
1878.
13. Suit by Person in Possession of Land to
establish Title— Act VIII. of 1859, f 15— Practice
—Ground! of Appeal taken in the Argument—
Specific Relief Act I. of 1877.] The defendant
sued the plaintiff in the Munsiff's Court for rent
on certain lands in the plaintiff's occupation, and
the amount sued for being less than Rs. jo, the
DECLARATORY DECREE- ■■ contd.
Munsiff tried the suit in his jurisdiction as Small
Cause Court Judge, and gave judgment for the
present defendant, the then plaintiff. The pre-
sent plaintiff then brought the present suit, al-
leging that she was entitled to the lands in
question under the will of her husband, who had
purchased them as lakkeraj or rent-free lands,
and that as there was no appeal against the Mun-
siffs decision, her lakheraj right in respect of
the said lands had been injured, and she there-
fore prayed for the establishment of her lakheraj
right to the lands: —
Held, that the suit was not maintainable. It
is settled law that a suit cannot be maintained
where the plaintiff who merely seeks for a de-
claration of title is in possession, and the claim
which the defendants had set up was no longer
in the condition of a mere assertion or a claim
for right ; it had passed into a decree. The
plaintiff, therefore, could not bring this suit for
the purpose of setting aside the judgment of the
Smalt Cause Court, and therefore no relief
could be had in respect of that.
Heldnho, that the fact that the plaintiff, unless
the present suit were allowed to be maintained,
would be without remedy, was not a reason for
allowing a suit to be maintained which the law
did not allow.
But the plaintiff was not without a remedy,
for if a further suit for rent were brought, she
ild immediately file a suit in the Munsiff's
Court, and apply for an injunction to prevent
the other party from proceeding so long as her
own suit was not disposed of and an absolute
relief given to her.
Held, further, that though as a general rule
the High Court will not allow grounds of appeal
to be taken in argument which have not been
taken in the memorandum of appeal ; yet where
a decree comes before it which is upon its very
face illegal — a decree which goes beyond the
power of the Court which passed it — the High
Court will take up the point itself and rectify
the mistake.
Semble—Per Jackson, J.— That the plaintiff
might, if a fresh suit for rent were brought
against her, again raise the same question, be.
cause the Small Cause Court had no power to
determine finally a question of right. Poran
Sookh Chundeb ». Pakbutty Dossbb.-.L L.
Rep.3Cftl.818, 1878.
D.gmzed by G00gle
( *".)
DIGEST OF CASES.
( •» )
DECLARATORY DECREE- -amid.
14. Suit for Declaration of Rigki only.)
In a suit merely for a declaration of right to
certain property, the lower Appellate Court, on
an objection as to the insufficiency of the stamp
on the plaint, allowed the plaintiff to make up
the full amount of fees required for a suit for
possession of the property, which the judge con-
tidered to be the real object of the suit. The
plaint was not amended, and the lower Appellate
Court eventually gave a decree only for a de-
claration of right; —
Held, on second appeal by the defendant,
who objected that a suit merely for a declaration
of right could not be maintained, that such
objection could not under the circumstances be
allowed. SARASUTI b. Manhlt. Pearson and
Oidfield, JJ ... ... I. L. Rep. 2 All. 134, 1879.
S. C- under Hindu Law— Inherit-
ance Illegitimate Son. 8.
IB. Specific Relief Act I. of 1877, § 4*]
The defendant was in possession of the estate
of a deceased Gosavi as his Shishya (spiritual
son). The plaintiff sued on a stamp of Rs. 10
for a declaration that he was the true Shishya of
the said Gosavi by a previous adoption, his real
object being to establish a title to the estate in
the hands of the defendant:— Held, that under
any circumstances the Court would not exercise
in the plaintiff's favour the discretionary power
vested in it by { 42 of Act I. of 1677, inasmuch
as to do so would enable the plaintiff to obtain
relief on a stamp of Rs. to, which the Legisla-
ture intended should be chargeable with a higher
fee, and thus would have the effect of giving
countenance to an evasion of the stamp taw.
Ganpatgir Guru Bholagir v. Ganpatgir.
West and Pinhey,]] .1. L. Rep. 3 Bom.
230, 1879.
18. Qnuequttttal Relief— Discretion of
Courts— Act VIII. of 1859, § lj.] " It is true
that the law (Act VIII. of 1859, f 15) allows the
Courts, without granting consequential relief, to
make binding declarations of title ; but it has
been held both here and in England (f 15 being
almost a transcript of Stat. 15 and 16 Vict., CI.
86, i 50) that it is discretionary with Courts
whether they will give a declaratory decree or
not ; and it has also been held that a declaratory
decree will not be made unless the plaintiff
would be entitled to consequential relief if he
asked for it, e.g., where an abstract decision on
the point is asked, the plaintiff being either in
DECLARATORY DECBKK ■ contd.
full possession, or out of possession beyond tlie
statutable period for the institution of suits."
Bai Makhok a. Buuakhi Chaku. Per Kemball,
J I. h. Bop. 1 Bom. 888, 849.
S. C. under Jurisdiction. 19.
17. Suit for a Declaration of Right to
Officiate as an Hereditary Officer— Bombay Act
III. of 1874 — Jurisdiction.] Since Bombay Act
III. of 1874 came into force, no suit will lie in a
Civil Court for a declaration that a person is
eligible to officiate as an hereditary officer fall-
ing within the scope of that Act.
Since that Act became law, none but repre-
sentative Watandars or their deputies, or sub-
stitutes, as provided for in the Act, can officiate,
and the duty of determining what persons shall
be recognized as representative Watandars is
vested in the Collector, whose proceedings are
judicial proceedings, and from whom an appeal
lies to the Revenue Commissioner. Chinto
AhAJI KULKARNl O. LaKSH KIBAI. Westropp,
C.J., and iWWei«, J...X. L. Rep. 2 Bora. 375,
1B77.
18. Suit for a Declaration of Right to
Officiate as sole Representative of a Watandar
Family— Bombay Act III. of lo7\— Jurisdic-
tion.] Since the coming in to force of Bombay Act
III. of 1874, it is not competent for the Civil
Courts to entertain a suit for a declaration of
right to officiate as sole representative of a
Watandar family, because not only can they not
afford a consequential remedy, but because they
can no longer establish a right which the Collec-
tor would be bound to respect, he having been
made by that Act a Judge for the particular
purposes of the Act, and the relations of all the
Watandars inter se being placed entirely at the
disposal of the Collector, whose jurisdiction
cannot be interfered with so long as it is exer-
cised in the way provided by the Act. Khakdo
Narravan Kulkahni e. Afpaji Sadashiv Knt-
KARNI. West and Pinhey,]] t L. Rep. S
Bom. 870, 1877.
19, Suit for a Declaration of Right to
share in Patilki Watan and Officiate in Rotation
—Eligibility— Adverse Possession,] An admitted
ownership of a share in the lands appurtenant
to a. PatiHi Watmn raises a prima foci* presump-
tion of eligibility for the office of Patil -, and the
exercise by the Collector of his right, under Act
XI. of 1843, to appoint one of several copar.
ceners to officiate as Patil, is not a denial of the
by Google
( *» )
DIGEST OF CASES.
( 418 )
DECLARATORY DECREE -contd.
eligibility of the others, and does not, therefore,
give to the one so appointeda possession adverse
to the other coparceners. Nindan Gavda
MaLAn Gavda, Wtstropp, C.J., and Kemball,]
I. L. Eep. 1 Bom. 683, n., 1872,
SO. Though a suit will not lie for
declaration of the right of an admitted sharer in
a Patitki Watan to a preference ove
sharer in the enjoyment of the office of Patil,
yet a suit will lie for a declaration of the pla
tiff's right to share in the Watan, and of his
eligibility to officiate as Patil, when that right
is denied by the other sharers, Babaji v. Nana.
Westropp, C.J., and West, J I. X., B«p.
1 Bom. SS5,n., 1876.
" DECREE."
See Civil Procedure Code, Act X of
1S77, § 3.
Dalpatbhai e, Ab>arsang...I. L.
Bop. 3 Bom. B63.
— Order Passed in Execution— Appeal.
Set Appoal- CivU. 2.1. 36. 38.
Murli Dhar b. Furs hot am... I.
L. Bep. 3 Bom. 61.
Thakur Prasad e. Ahsan Au...
I. L. Bop. 1 All. 668.
Uda Begum t>. Imam- tn>. Din.. .X.
L. Bep. 3 AIL 74.
— Order of Reference to take Accounts,
Set Civil Procedure Cods, Act X of
1S77, i 3.
Rustomji Burjorji «. Kessowji
Naik I, L. Bep. 8 Bom.
161.
- Order Rejecting Petition for Leave to Sue
informd Pauperis.
St* Appeal— Civil. 18.
Collis v. Manohar Das. ..I. L.
Bep. 1 AIL 74S.
- Order Refusing to Set Aside Ex-partt
See Appeal-Civil. 2. 19.
GlIJ.AB SlNOH V. LACHMAN Das...
1. I* Bep. 1 AIL 748.
La km id as v Ebrahim. I. L. Bep,
fl Bom. 644.
"DECREE "—cantd.
Order Returning Plaint after Issues framed
is not a— under Act XII. of 1870, f 2.
Set Appeal— Civil. 22.
Abdul SaMadb. RajindroKishor
Singh...!. I,. Rep. 3 All. 8S7.
DECREE— Acknowledgment of Barred.
See Kistbandi.
Kbera Lal «. DHUNPUT...I. L.
Bep. 4 Cal.600.
Set Limitation, 43. 44.
Kally Prosonno v. Hbera Lal...
I. L. Rep. a Oal. 468.
MuHGAL PRASHAD v. ShaUA KAN-
TO...I. L. Bep. 4 Cal. 708.
Administration Suit— Effect of.
See Certificate to collect Debt*. 3.
TREE POOR ASOONDEEY v. Deeend-
RONATH...I. L. Rep. 2 Cal. 40.
— Agreement not to Execute.
Set EetoppeL 6.
Param Singh «. Lalji Mal...I, L.
Bep. 1 All. 403.
Assignment of —Cross Decrees — Execution.
See Execution of Decree. 3.
Muru Dhar v. Purshotuh Dass.
1 L. Bep. 3 AU. 81.
Attachment and Sale of Money— in Exe-
Set Civil Procedure Code, Act X of
1877, f 373.
Sultan Kuarh. Gulzari Lal...
I. L, Bep. 3 AIL 290.
Charging Lands is an Interest in Immove-
able Property.
5m Sale in Execution of Decree. 7.
MUSAMAT BHAWANl KuAR B.
Gulab Rai I. Xi. Bep. 1
AIL 848.
1 1 ■ Conditional — in Pre-emption Suit.
Sit Pre-emption. 3. 4. 8.
Shaikh Ewaz v. Mokuna Bibi...
I. L. Bep. 1 All. 133.
Hingam Khan b. Ganga Par-
brad I. L. Bop. 1 All.
Diaxized by Google
( «8 )
DIGEST OF CASES.
{ *so )
BEOBEE «'iU.
Conditional — in Redemption Suit.
See Mortgage. 3S. 36.
Raja Baeda Kant v. Bhagwan...
I. L. Rep. 1 All. 344.
Sahib Zadak d. Parmeshar Das.
I. L. Bep . 1 AIL 024.
Construction of.
See Construction of Decree.
Suhar Ahmed v. Haji Ismail...
L L. Bep. 1 Bom. 168.
— Cross. Decrees— Execution.
Set Execution of Decree. 3.
Murli Dhar b. Pursotam Das...
I. L. Bep. 2 All 91.
— Erroneous Construction of — by Court pro-
nouncing it.
See Account. 1.
HiRJi Jiva o. Naran Min.][...I.
L. Bep. 1 Bom. 1.
Execution of.
Sec Execution of Decree.
See Pre-emption. 88.
Shaikh Ewaz b. Mokuna Bibi...
I. L. Bep. 1 AIL 132.
Hingan Khan v. Gang a Par.
shad Ibid. 293.
— Final — o( Appellate Court.
See limitation. 69. 76.
Umiashankar b. Chotalal I.
L. Bep. 1 Bom. 19.
Imam Ali v. Dassaundhi Ram...
L L. Bep. 1 All. 608.
— Form of — against Mortgaged Property.
See Hindu Law- -Undivided Fa-
mily. 7.
Luchmi Dai e. Aswan Sing...
X. I* Bep. 2 Cal. 213.
— against a Hindu Widow — Personal.
See Personal Decree against a
Hindu Widow.
Raijun Doobry e. Brij Bhookun.
L. Bep. 2 I. A. 276.
D T. CBBE- -to n td.
against Hindu Widow— Reversioners when
bound by.
^Bm Judicata. 17.
Rrommove Dasss v. Krjsto Mo-
hun LL.Bep.2CaL
233.
— Interest on.
See Interest. 11.
Seth Gokdldas Gopaldas ».
Muru...L. Bep. 6 L A. 78.
— Interest— Rule of Dam-Dufat inapplicable.
See Hindu Law— Interest. 2.
Balkriskna v. Gopal... L L.
Bep. 1 Bom. 73.
— For Maintenance— Suit on.
See Multiplicity of Suits. 1. 2.
Lakshman v. Satvabhamabai...L
L Bep. 2 Bom. 494.
SlDLlNGAPA*.SlDAVA...LL.Bep.
3 Bom. 634. 630.
— For Maintenance— Varying Decree.
Set Multiplicity of Suits. 2.
SlDUNOAPA V. SlDAVA.,-1. Ih
Bep. 2 Bom. 624.
— For Mesne Profits— Execution of— Interest.
See Execution of Decree. 20.
Hurroduroa v. Sharrat Soon-
bery I L. Bep. 4 CaL
674.
— Money Decree — Attachment and Sale of.
See Civil Procedure Code, Act X.
of 1877, { 273.
Sultan Kuar e. Gulzari Lai....
I. L. Bep. 2 All. 39a
— Money Decree obtained on Mortgage —
Sale— Right of Purchase.
See Sale in Execution of Decree. 4.
9.
Khub Chundo. Kalian Das... I.
L, Bep. 1 AIL 340.
Balwaht Singh v. Gokaran Pra-
sad Ibid. 433.
See Mortgairo. 40.
Gakput Rai e. SABUPI...I. I*
Bep . 1 All. 443.
Digitized byGOO^Ie
DIGEST OF CASES.
— Money Decree unconnected with his Mort-
gage, obtained by Mortgagee— Execution
Sale— Right of Purchaser.
See Mortgage. 8.
TuKARAM V. RAMCHUHDRA...I. Xi.
Hep. I Bom. 814,
Sec Sheriff's Bale. 3.
BhUQGOBUTTY v. ShAMACHURN...
I. L. Sep. 1 Cal. 887.
— Payable by Instalments — Discreti
See Decree payable by Instal-
ment*.
— Payable by Instalments— Limitation for
Execution of.
Sie limitation. 71. 71a. 79.
Dulsook v. CMUCOH...I, I,. Bep,
2 Bom. 308.
Kaschan Singh p. Sheo Prasad.
t L, Bep. 2 AIL 901.
Shib Dat i. KALKA...L L. Bep.
9 AIL 448.
— Payable by Instalments — Suit on — Limita-
See Limitation. 69.
Sakharam v. Gangs h L L.
Bep. 8 Bom. 198.
— Payable by Instalments in Suit on
charging Immoveable Property.
See Civil Procedure Code, Act X.
of 1877, i 910.
Hurdbo Das v. HuXAM Singh...
I. L. Bop. 9 All. 320.
— For Performance of Specific Act— Execu-
tion of.
See Civil Procedure Code, Act
VIII. of 1859, j 900.
AjNASl KUAR t. SURAJ PRASAD...
LL. Bep. 1AU. 601.
— Purchase of — by Joint Judgment. Debtor.
See Limitation. 51.
Abdul Munsoor v. Abdool Ha-
urn... I. L. Rep. 2 Cal. 98.
— Reversal of — after Sale in Execution, but
before Confirmation.
See Bale in Execution of Decree. 91.
BASAFPA *. DUNDAYA I. L.
Bep. 9 Bom. 540.
( «M )
— Sale in Execution of.
See Bale in Execution of Decree.
— Against a Sirdar — Elocution of — against
his Heir not being a Sirdar.
See Limitation. 69.
Sakharam v. Games h L L.
Bep. 3 Bom. 193.
- Against Sirdar's Heir— Execution of.
See Execution of Decree. 5.
Govihd v. Sakharah I. L.
Bep. 3 Bom. 49.
- Of Small Cause Courts (Presidency
See Execution of Decree. 94.
la re Jagjiyan Nanabhai...I. L.
Bep. 1 Bom. 89.
See Execution of Decree. 91. 99. 98.
— Of Small Cause Court, Suit on.
See Suit on Decree. 9.
Khoblal v. Ramchunder.,,1. L.
Bep. 9 Cal. 434.
— Subsequently reversed— Refund of Costs
paid under.
See Befund of Coste paid under
Decree subsequently re-
versed.
Dorab Ally Khan «. Abdool
Azkez I, L. Bep. 4 Cal.
299.
— Suit on.
See Multiplicity of Suits.
SlDLINOAPA V. SlDAVA L L.
Bep. 2 Bom. 694,630.
— Suit upon a.
See The Cases under Suit on a
Decree.
— Time-barred — Revival of.
See Limitation. 43. 44.
Rally Prosoho Hrrra Lai.... I.
L. Bep. 9 Cal 469.
MlJNGOL PRASHAD «. SllAMA
Kanto.,1. L. Bep. 4 Cal.
708.
See Eiatbandi.
HEERA LALLb. DHUNPUT.-.Ibid.
500.
D.gmzed by G00gle
DIGEST OF CASES.
L Boundaries— Specific Statement of Re-
lit/granted iy Decreet.} A. claimed certain lands,
claiming one portion of such lands under one
title, and the remainder under another tfnd sepa-
rate title. In the schedule to his plaint he gave
the boundaries of the entire lands claimed by
him, but did not give any boundary between the
lands claimed by him under one title and' the
lands claimed by him under the other title. The
Lower Court decreed the whole of the plaint
claim. The Lower Appellate Court confln
so much of the decree of the Court of first
stance asdeclared the plaintiff's right to the first
portion, and dismissed his suit as to tl
der; and there being no evidence to show what
lands in particular out of the whole cla
comprised in the first portion for which it gave
him a decree, directed them lo be ascertained
execution.
Held, that the decree was bad, as it should
have specified the lands decreed. Kungal
Chandar Ruj v. Kanyk I.all Ruj. Jackson
and Tottenham. JJ I. I,. Rep. 4 Cat
69, 1878.
3. Construction of— What it m
tain— Civil Procedure Code, Act X. of 1877,
§ 206.] The plaintiff sued on a bond by which
real property was hypothecated. In his claim
the property hypothecated was detailed,
property itself was impleaded as a defendant
but the decree was in the following tei
" Decree for plaintiff in favour of his claim and
costs against the defendant" .—
Held, that § 206 of Act X. of 1877 lays down
in the most explicit way what the contents of a
decree are to be ; and if there be an omission
in the decree so that the relief given by it does
not in terms go to the extent asked, it is no part
of the duty of the High Court, or any other
Court, to import words for the purpose of
stretching its operation. The Court maki
the decree must be presumed to have expressed
the relief it was prepared to give, and the words
" Decree for plaintiff in favour of his claim and
costs against defendant" had nothing about
them specifying clearly, as required by the Act,
any relief in the shape of enforcement of lien
against the property hypothecated ; the decree,
therefore, was simply a decree for money.
Thamman Singh v. Gang a Rah. Oldfield
and Straight, JJ 7. L. Rep. 2 All.
342, 1879.
■ntd.
Construction of— What it must
contain — Civil Procedure' Code, Act X. of 1877,
j 206.] Where the plaintiff by his claim sought
for a decree for money and enforcement of a
en on the property hypothecated by the bond
n which the claim was based, and the judgment
eclared the lien good and Valid, but the decree
'as simply for the " claim as brought," without
.ny specification in it as to the relief sought by
the plaintiff by charging the property hypothe-
cated:—
Held, that such a decree was nothing more
than a money decree, and did not enforce the
charge on the property. Muluk Fuqueer Bahhsh
Manohar Das (H. C. Rep., N. W.' P. 1870, p.
2g) followed. Harsukh 0. Meghraj I. I..
Rep. S AIL 845.
N FICTITIOUS
MORTGAGE — NULLITY AS
AGAINST SUBSEQUENT PUB-
CHASER BONA FIDE FOR
VALUE.
See Mortgage. 7.
Gopi v. Markandb...I. Xi. Rep.
3 Bom. 30.
DECREE BY CONSENT IN A SUIT
BY A CREDITOR OF A DECEAS-
ED MAHOMETAN AGAINST
THE HEIRS OF THE DECEASED
IN POSSESSION OF HIS PRO-
| PERTY— When binding on Absentee
Heirs.
See Mahomed an Lav. 1.
Assam avhee Nessa Bibee r.
Rot Lutchmeput Singh...
I. L. Rep. 4 Cal. 143.
DECREE FOR EJECTMENT IN BUTT
FOR ARREARS OF RENT,
RIGHT OF PURCHASER TO
ftUESTION THE VALIDITY OF
—BY SUIT, IF NOT A PARTY
TO RENT SUIT.
See Rent Suit.
Madho Proshad Singh 9. Pur-
■ shan Ram I, L. Rep 4.
CWLS60.
D.gmzed by G00gle
DIGEST OF CASES.
DECREE FOR PARTITION— Execution
of.
See Execution of Decree. It.
Rajcoomakke v- Gopal Chunder.
I. L. Rep. S Cal. 514.
Execution— Limitation— Right of Co Sharer
in Partition Suit to enforce Decree.-] A decree for
partition is not like a decree for money or for
the delivery of specific property, which is in
favour only of the plaintiff in the suit. It is a
joint declaration of the tights of persons interest-
ed in the property of which partition is sought,
and having been so made it is unnecess
those persons who are defendants in the
come forward, and institute a new suit 1
the same rights declared under a second order
made. A decree in such suits is a decree, when
properly drawn up, in favour of each sharehpld<
or set of shareholders having a separate share.
A.,on the 29th June 1871, obtained a decree
for partition against B., his co-sharer, and on the
igth November 1876 applied to have the execu
tion proceedings struck off the file. The appli
cation was refused, and the partition was ordered
to be completed at B.'s expense -.—Held that,
the execution proceedings taken either by one
or the other shareholder were taken on behalf of
both, limitation did notapply. Sheikh K
SHED HOSSEIN «. NUBBBE FaTIMA. Ainslie
and McDonnell, }} ,.L L. Rep. 3 Cat, 651 ; 2
Cal. Rep. 1S7, 1878.
DECREE PAYABLE BY INSTAL-
MENTS—Act X. of 1S77, § aio.] Sembte.per
Turner, J.~ The provisions of § 3iO of Act X. of
•877 were intended to apply only to what are
commonly known as money decrees and not to
decrees in which a sale is ordered of immoveable
property in pursuance of a contract specifically
affecting the property.
Per Oldfield, J. :— Whether the decree decrees
the payment of money simply, or proceeds to
direct its realization by sale of a particular pro-
perty mortgaged as security in the event of
non-payment, it is still a "decree for payment of
money," in the words of the section (J 1941 At
VIII. of 1859), when the Court may order the
amount to be paid by instalments.
Where a contract is distinctly made for pay-
inent on a date certain for the purpose of en-
abling the creditor to obtain punctual payment,
the circumstance that the payment is secured
by an hypothecation of property, ought not to
deprive him of that right.
Where a Court, on the ground that the de-
fendant was "hard pressed," directed the amount
of a decree to be paid by instalments extending
over ten years, and allowed only one-half the
usual rate of interest ; —
Held, that there was no sufficient reason for
directing the payment of the amount of the
decree by instalments, and (hat the Court had
xercised its discretion injuriously to the plain-
ff by the length of time over which the instal-
ments were extended, and by allowing a rate of
Interest less than the ordinary rate. Binda
Pbrsad*. Madho Pebsad. Turner and Old.
field,]) I. L. Rep. 2 AIL 129, 1878.
2. Discretion— Act VIII. of litf, % 194.]
Where the Courts below, out of consideration
for an innocent purchaser forced to satisfy a
mortgage, awarded payment by instalments at
short intervals: Held, not to be unreasonable
under the circumstances. Carvai.hu v. Nwr-
bibi. West znAPinhey, JJ...1 L. Rep, 3 Bora.
SOS, 1879.
S. C under Interest. 7.
DECREE AGAINST' REPRESENTA-
TIVE OP DECEASED BLAHOME-
DAN— Right of Purchaser at Sate in
Execution of.
See Bale in Execution of Decree. 20.
Hendry d. Muttv Lall Dhur...
I. L, Rep. 2 CaL 39S.
DECREE FOR SALE OF MORTGAGED
PROPERTY— Assignment of.
See Registration. IB.
Gopal «. Trimbak...L Ii. Rep.
1 Bom. 267.
DECREE OF SMALL CAUSE COURT.
ait on— will lie in High Court.
See Suit on Decree. 2.
Khoblall v. Ramchunder ..L L.
Rep. 2 CaL 434.
DECREE SUBSEQUENTLY SUPER-
it to recover Money paid under.
See Money paid under Decree nub.
sequently superseded.
Joobsh Chunder p. Kali Churn.
I. L. Rep. 3 Cal. 30.
D.gmzed by G00gle
( 427 )
DIGEST OF CASES.
(
)
DECBEE AGAINST SOKE OP THE
WIDOWS AS REPRESENTA-
TIVES OF DECEASED MAHOHE-
DAN— Sale by such Widows to satisfy
Decree — Minor when bound by.
See Mahomedan Law— Infant
Hamik Singh a. Musahhat Za-
kia I. L. Rep. 1 All. 67.
DECREE ON SPECIALLY REGISTER-
ED AGREEMENT— Appeal from.
See Appeal— Civil. 7. 11. IS.
Bkyrub (Thunder v. Golap Coo-
maky I. L. Rep. 8 Oal.
017.
Rah ana nd v. Bank oe Bengal...
I. L. Rep. I AIL S77.
Wilay At -un- Nissa v. Waiib-un.
Nissa Ibid. 683
— Limitation for Execution of.
Set Limitation. 79.
Jai Shankar v. Tetley L L.
Rep. 1 All. 680.
See Appeal— Civil. IS.
Wilayat-un- Nissa «. Waji&-vn.
Nissa I. L. Rep. 1 AIL
683.
DECREE ON SPECIALLY REGISTER-
ED MORTGAGE BOND— Sale in
Execution of — Right of Purchaser.
' See Sale in Execution of Decree. 6.
Akhe Rah v. Nand Kishohe.,.1.
L. Rep. 1 All. 236.
DECREE AGAINST WIDOW OF DE-
CEASED MEMBER OF UNDIVID-
ED KITAKSHARA FAMILY,
FOR HIS DEBTS— Liability of Undi-
vided Share of Deceased under.
See Hindu Law— Alienation of
Ancestral Property. 8.
Musst. Phoolbas *. Lai.lA Jo.
CBSHUR..L. Rep. 8 L A. 7
I. L. Rep. 1 CaL SS6.
DEDICATION TO TEMTLE-Of Dtta
Dasis — Rights of Dancing Girls.
See Immoral Custom.
ChinnaUuhayi v. Tegarai Chkt-
ti.,.1. L. Rep. 1 If ad. 168,
DEDICATION TO TEMFLE-ttmW.
Of Minor Girt
Se, Penal Code, , 372.
Reg. u. Aeuna Chellah ..I. I*.
Rep. 1 Had. 184.
DEDUCTION OF TIME NECESSARY TO
OBTAIN COPT OF JUDGMENT
IN COMPUTING PERIOD OF LI-
MITATION FOR PETITION FOR
LEAVE TO APPEAL TO PRIVY
COUNCIL.
See Limitation. 90.
Jawahir Lal t. Narain Das... L
L. Rep. I All. 844.
See Letters Patent (Allahabad),
CLIO. 8.
Fazal Muhamad «. Phul Kuar..
L L. Rep. S All. 193.
DEDUCTION OF TIME OCCUPIED IN
SEEKING EXECUTION OF DE-
CREE IN COURT WITHOUT JU-
RISDICTION.
Set Limitation. 40,
Jiwan Singh u. Sarnah Singh...
L L. Rep. 1 All. 97.
DEDUCTION OF TIME OCCUPIED IN-
UNSUCCESSFUL ENHANCE-
MENT BUTT, IN SUIT FOR AR-
REARS OFRENT AT ADMITTED
RATE, NOT ALLOWED.
See Limitation. 9.
Brojendro Coomar e. Rakhal
Chuhdek-.I. L. Rep. 8 CaL
791.
DEDUCTION OF TIME OCCUPIED IN
UNSUCCESSFUL SUIT FOR
EHAB POSSESSION, IN SUIT
FOB ARREARS OF RENT, NOT
ALLOWED.
See Limitation. 10.
Hureo Proshad Roy f. Gofaul
Dass Dutt L L. Rep. 3
CaL 817.
DEDUCTION OF TIME OCCUPIED BY
PROCEEDINGS IN WRONG
COURT.
See Limitation. 41.
Shetii Kahahdas*. Dhaiabhai...
X. L. Rep. 8 Bom. 188.
D,gltlzed by G00gle
>
DIGEST OF CASES.
( 410 >
DEDUCTION OF TDXE OCCUPIED IN
PROSECUTING SUITS IN
COURTS WITHOUT JURISDIC-
TION—In suits under Act XVIII. of
l»73-
Sec Limitation. 30.
Tihmal Kliaki v. Ablakh Rai ..
I. L. Rep. 1 All. 364
DEDUCTION OF TIME OCCUPIED BY
FORMER SUIT.
See Limitation. 91.
Putali Meheti e. Tulja... I. L.
Rep. 8 Bom. S33.
DEED — Of Assignment of Mortgage for mora
than Rs. 100, for Consideration less than
Rs. 100.
See Registration. 7.
Satra «. Visram L L. 1
See Registration. 38.
Raju Balu b. Krishnarav I.
L. Rep. 3 Bom. 378-281.
In English Form, between Hindus — Con-
traction.
See Mortgage. 81. S3.
Pita m bar v. Vanhali I. L.
Rep. 3 Bom 1.
Jagjivan o.Suriohar Ibid.
303.
■ By Parda Woman. '
See Pardanoahin Female. 3.
Tacoordben «. Nawab Syed Au.
L. Rep. 1 L A. 183.
Cancelling Signature to — Misrepresenta-
tion—Contract Act IX. of lS73, ft 18-19.
See Cancellation of Signature.
The Oriental Bank v. Fleming,
I. L. Rep. 8 Bom. 343.
■ Setting Aside.
Set Betting aaide Deed.
See Fardanuabin Female. 3.
Tacoordbbn Tewarkt v. Nawab
Syid Ali H ossein Khan...
L. Rep. 1 1. A. 198.
DEED DECLARED A FORGERY -Suit ,
See Limitation. 07.
Fakharcodsen Marked Ahsan
v. Poqose L L. Rep. 4
Oal. 809.
See Declaratory Decree. 13.
ShibLalv. Hira Lal I. L.
Rep. 1 All. 633.
DEED OF PARTITION— Registration of.
See RegUtration. 9.
Shankarv. Vishnu. ..L L. Rep.
1 Bom. 67.
DEED OF TRUST GIVTNO TRUSTEES
POWER OF BALE OF LAND IN
MOFUSSIL— Suit by Creditor to have
Trust carried out.
See Suit for Land. 8.
Delhi and London Bank «.
Wordie.,,1. L.Rep. ICaL
349.
DE FACTO GUARDIAN— Powers of.
See Mortgage. 39. 80.
Abiiassi Begum v. Moharanee
Rajroop...!. L. Rep. 4 Cat
38.
Delsi Dutt Sahoo v. Subodra
Bibee...I. L. Rep. 3 Cal.393.
DEFAMATION — Damages for — Nominal
Damages.
See Damagea. 3.
FltTBEK PABOOBB V. Mo HINDU
Nath.,.1. L. Rep. 1 CeJ.
885,
Parties to Suit for.
See Parties to Bait. 6.
SuBBAYAR V. KRISTNAYYAR.
L L. Rep. 1 Mad. 888.
Penal Code, ff 52,499 (Exception!)— Bona
Fides— Act XVIII. 0/1862, §g 3&-2J— Evidence
Act I, 0/1872, 5 105.] Sections 26 and 37 of
Act XVIII. of 1862 are still law, but apply only
to the High Courts, and not to the Mofussil
Courts.
Since the passing of the Evidence Act (I. of
S73, ( 105), it is, in all criminal cases tried in
the Mofussil, incumbent on the accused to show
iiistence of circumstances, if any, which
bring his case within any of the general excep-
ions in the Penal Code, or within any special
by Google
( *» J
DIGEST OF CASES.
( «2 )
DEFAMATION— contd.
exception or proviso contained in any other part
of that Code, ot in any law defining the offei
with which he is charged.
In dealing with the question of the good fa
of a person accused of defamation, contained
a petition to a Magistrate, in which he stated
that the prosecutor was preparing to bring false
charges against him, and which petition was
founded upon statements made to the accused
by third persons that they had overheard the
prosecutor discussing with others the possibility
of getting up a case against the accused : the
proper point to be decided is, not whether the
evidence of the persons so giving such inform-
ation to the accused is true, but whether the
accused was told of the conspiracy against him
by his witnesses, and had reasonable ground,
with due care and attention, for believing their
Per Markby, J . — Although %% 235 and 237 of the
Code of Criminal Procedure, Act XXV. of 1861,
have oeen repealed, and the New Code of Cri-
minal Procedure does not contain any analo-
gous provisions; yet from % 439, Illustration
(a), it may be inferred that the absence of all
general exceptions is to be assumed as before
without allegation, and that the averment of the
absence also of some other exceptions is to be
assumed, but whether this applies to all excep-
tions is not clearly stated. It affects, however:
only the statement of the offence in the charge
In the mailer of the Petition of SiBHO PrOSaD
Panda. Markby and Prinsep, JJ...L L, Bop.
4 Cal. 124 ; 3 Cal. Rep. 122, 1878.
DEFAULT IN APPEARANCE.
Power of Small Cause Court to restore
Case struck off for.
See Small Cause Court, Presidency
Town. 1.
Sib Cmundeh v. Kissen Dyal...L
L. Rep. 1 Cal. 476.
DEFAULTING PURCHASER — Appeal
lies from Order on Application to make
— liable for Loss on Resale.
See Appeal— Civil. 17.
Rah Dial t. Ram Das. ..I. L.
Rep. 1 All. 181.
DEPUTED SHARK -Gift of.
See Mohomedan Law— Gift. 1.
JlWAN Baksh 1: Imtiaz Beoam...
I. L. Rep. 3 All. 83.
DEFINITE SHARE (IN ZEMINDAR!)—
Gift of.
See Mahomed au Law— Sift. 2.
Ameeroonissa Khatoon v. Abe-
doonissa Khatoon. ..L. Rep.
2 L A. 87.
DELAY.
See Acquiescence. 1.
Uda Bsgam ir. Ihau-ud-Din...
L L. Rep. 1 All. 8a
See Attorney and Client. 2.
MoNOKUR DOSS O- ROMON'ALTTh!
Law.,.1. L. Rep, 3 Cal. 473.
See Divorce. 2.
Williams v. Williams... L L.
Rep. 8 Col. 683.
In applying for Writ of Habeas Carpus.
See Privilege from Arrest.
In the matter of OmroitolAll.
Dev...I. L Rep. 1 Cal. 78.
^— In Suing for Obstruction to Ancient Lights,
See Mandatory Injunction.
Atmakam v. Jamnadas...I. L.
Hep. 2 Bom. 183.
DELEGATION— Of Legislative Powers.
See Legislative Powers of the
Governo r General in Council.
1.2.
.Empress v. Bukrah...I. L. Rep.
3 Cal. 63 ; I. L. Rep. 4 Cal.
172; L.Rep.6 LA. 178;
L. Rep. 8 App. Ca. 889.
DEMAND AND REFUSAL — Dower —
Unsuccessful Petition for Leave to sue
in forma Pauperis.
See Mahomed an Law— Dower, 1.
Ranee Khajooroonissa v. Ranee.
RyEE50ONIS3A...L, Rap. 3
I. A. 385.
- Of Maintenance.
See Hindu Law— Maintenance of
Widow. 4. 7.
jivi v. Ramji I. L. Rep. 3
Bom. 307.
N array an o. Ramabai L L.
Rep. 3 Bom. 415 ; L. Rep.
OLA. 114.
Digitized byGOO^Ie
(
)
DIGEST OF CASES.
{ «* )
DEMOLITION OP BUILDING.
See Mandatory Injunction.
Jamnadas b. Atmaram L L.
Sep. -a Bom. 133-
See Enhancement of Kent. a.
HURRONATH jp. GOBIND ChUNDER.
L. Hep. 2 I. A. 193.
DEPOSIT OP OOSTS-Power to enlarge
Time for.
See Act VL of 1874, f 11.
Soorjmukhi Koer.,.I. L. Rep.
a Cal. 273.
DEPOSIT OP MONEY FOB COSTS OP
APPEAL TO PRIVY COUNCIL—
Vacation— Power of Court to grant Spe-
ci.il Permission.
See Act VT. of 1874, §8.
Laixa Gopee Chand.-X L, Rep.
a CaL. 128.
DEPOSIT OP SECtJBITY-DISMISSAL
OP APPEAL TO THE PRIVY
COUNCIL FOR DEFAULT IN.
See Appeal to the Privy Council. 4.
Thakooe Kapilnath Singh u.
The Government L L.
Rep. 1 Cal.. 143.
DEPOSIT OF SECURITY BY PEBSON
ENTITLED TO A CERTIFICATE
UNDER AOT XXVII. OF 18QO— No
Appeal from Order for.
See Appeal— Civil. 4.
Mfc-NHOHINEE DasEE V. KhETTER
Gopaul Dev.,.1. L. Rep. 1
CaL 127.
DEPOSIT OF TITLE-DEEDS.
See Equitable Mortgage.
D.AYAL JAIRAZl.. JCVRAJ RaTANSI.
I. L.Hep. lBoin. 237.
DEPOSITIONS TAKEN BY BRITISH
CONSUL AT ZANZIBAR.
See Offence committed in Foreign
Territory.
Empress b. Dossajt Gulah Hus-
sein I. L. Rep. 3 Bom.
334.
DEPUTY COMMISSIONER OP PO-
LICE— Confession to— Admissibility of.
See Evidence. 13.
Reg. «. Hl-rribole. . .1. L. Rep. 1
Cal. 307.
DEPUTY MAGISTRATE— Power of— to
question Sanction to prosecute given by
Superior.
See Sanction, to Proeecute. a.
Empress v. Irad Ally 1 L.
Rep. 4 CaL 889.
DESERTION.
See Divorce. 1. 3.
Wood v. Wood L L. Rep. 3
CaL 480.
Fowlh o. Fowls... I. L. Rep. 4
Cal. 280.
See Pensions' ActXXm.of 1871
a.
Vasudev «. The Collector of
Ratnagiri I. L. Rep. 2
Bom. 99; L. Rep. 4 LA.
119.
DESHMUKHI HAKS— Suit for.
See Pensions' Act XXITX of 1871.
e.
Vasudev b. The Collector op
Ratnagiri. L L. Rep. 3
Bom. 99; L.Rep. 4 1. A.
119.
DESHPANDE WATAN— Right to Share
' ' — Suit for Declaration of.
i,wPenaione,ActXXm.ofl871.5.
Babaji d. Rajaram...I. L. Rep. 1
Bom. 76.
DETERMINATION OP LSSUE NOT
ABSOLUTELY NECESSARY FOB
THE DECISION OF THE CASE.
See Re* Judicata. 37.
Man Singh b. Narrayan Das...
L L. Rep. 1 All. 480.
DEVADASIS— Dedication of.
See Immoral Custom.
CHINNA UliMlYJ B. TEGARAI
Chetti..,L L. Rep. 1 Mad.
168.
See Penal Code, g 873.
Reg. v. Aruna Chellam...!. L.
Rep. 1 Mad. 184.
boozed by Google
( «5 )
DIGEST OF CASES.
( «6 )
DEVISE— Of Debt —Representative of Devisee
cannot sue without Probate or Certificate
under Act XXVII. of i860.
See Assignee of Debt.
Shodoneb. Halalkhore...X. L.
Bep. 4 Cal. 640.
DEVISE ON CONDITION OF RESI-
DENCE.
See Will. 10.
Ganendro Mohum Tagors t.
Rajah Juttendbo Muhun
TAGORE...I- Bep. 1 I. A.
3S7.
DEVISEE OP DECEASED HINDU—
Liability of Lands purchased from — for
Debts of his Testator.
See Limitation. 38a.
Greender Chunder Gkose o.
Mackintosh... I, L. Bep. 4.
Oal. 887,
DEWASTHAN PROPERTY— Suit relat-
See Right to Sua. 10.
Radhabai b. Chihnaji Rahji Sao.
LL.Rep.3Bom.87.
DE V UTT OB,
See Hindu Law— Partition. 7.
Rah Coomar 1. Jogrndar Nath.
1. L. Bep. 4 CaL 60.
Set Hindu Law— WilL 13.
ASHUTOSH s. DOOROA CHURN
L. Bep. 6 1. A. 183.
1. Res judicata — Paver o/Sebait to bind
the IdoVs Estate.'] On the 27th February 185a,
and the 35th July 1854, the respondent obtained
two decrees against the sebait of an idol upon
two bonds for the repayment of money alleged
therein to have been borrowed for the service of
the idol, and the expenses of the temple. Both
decrees directed that the debt should be paid
by the sebait personally, or else realized from
the rents and profits of the deauttur lands.
In a suit by the appellants as sebaits in succes-
sion to the judgment debtor to set aside the
decrees, and to have the deauttur property of
the idol released from the attachment issued in
execution thereof: —
Held, that the decrees were entitled to the
force due to judgments of competent Courts.
The determination of the issues was ret judicata,
DB W UTT UB— contd.
and in the absence of proof of fraud and collu-
1, the necessary and proper issues having
been raised, tried, and determined, the judgments
founded upon them could not be re-opened and
iewed; but were binding upon the succeeding
sebaits, who formed a continuing representation
the idol's property. Although property devot-
ed to religious purposes is, as a rule, inalienable,
:ompetent for the sehait of property dedica-
ted to the worship of an idol, in the capacity of
sehait and manager of the estate, to incur debts
and borrow money for the proper expenses of
keeping up the religious worship, repairing the
temples or other possessions of the idol, defend-
ing hostile litigious attacks, and other like
objects. The power to incur such debts must be
measured by the existing necessity for incurring
them, the authority of the sebait of an idol's
estate being, in this respect, analogous to that
of the manager for an infant heir, Peosunno
Kuuari Drbya v. Go lab Chand Baboo L.
Bep. 3 I. A. 14B ; 22 W. R.
263; 14 Beng. L. B. 460,
1876.
9. Hindu Lata — Endowment— Powers of
Sebait— Notice to Purchaser.'] A plaintiff who
seeks to set aside an alienation of lands on the
ground that they are dewuttur, i.e., dedicated in
perpetuity to support the worship of an idol
must give very strong and clear evidence of the
endowment. The mere fact that the rents of a
mehal have been applied for a considerable time
to the worship of the idol, is not sufficient proof
that the mehal is dtwuttur.
The sebait of a dewuttur estate has authority,
where it is requisite for the benefit of the endow-
, to raise money by alienating a part of the
e, his position being analogous to that of
the manager of an infant.
The deeds of conveyance of certain lands
stated them to be dewuttvr, and that the temple
jut of repair, and that the purchase money
was necessary for the repairs and for various
other things requisite for the idol. In a suit to
aside the sale it appeared that at the time
of the transaction the temple required repairs,
but that the vendor had not applied the whole
of the purchase- money to them. There was
no evidence of any collusion on the part of
the purchaser, or that he was aware at the time
of the purchase that the money was to be applied
otherwise than the conveyance expressed :—
Digitized byGOO^Ie
( 437 )
DIGEST OF CASES,
( «8 )
SSW 0 TTTJR— to Hid.
Held, that the sale was valid. The admi
sions in the deeds must be taken as a whole,
and according to them the sate was justifiable
even if the property were demutlur. Even if
part of the money only was required for the
repairs of the temple, or was represented to
so required, and this was bona fide believed
' by the purchaser, the deeds would not be wholly
void by reason that some of the money was
raised for another purpose, and that would not
be a ground for setting the deeds aside alto-
gether, as the purchaser would be entitled to be
reimbursed so much of the money as had been
legitimately advanced. KooNwak Doorga-
nath Roy v. Ram Chunder Sen...L. Sep, 4
I. A. 53, 1876 ; I. X,. Bep. 3 Cal. 341.
DBABBK&IU.
See Kabulayatdar Knot.
Krishna j] v. Rauchandra...!.
L, Hep. 1 Bom. 70.
DH ARWAKARTABH1T' OF PAGODA—
Limitation to Suit for.
See Limitation. 04.
Mam ally Chenna «. Mangadu...
I. L. Reu. 1 Mad. 343.
DIGNTT Y- -SUIT TO VINDICATE.
See Suit to Vindicate a mere Dig-
nity.
DILDVIATED LAND.
See Alluvial Land.
Radha Proshad «. Ram Coomar.
I. L. B«p. 3 Cal. 796.
— — Non-Payment of Rent on account of— Ex-
tinguishment thereby of Right of Occu.
pancy in — on their Re-formation.
See Extinguishment of Bight of
Occupancy.
HBMNATH DUTTC. AsHGUR SlN-
dar I. L. Bep. 4 0al.
884.
— Re-formation of.
See Re. formation of Submerged
Lands.
DBSINTJTION OF WATER BTJPPLY.
See Penal Code, § 430.
* Ram Krishna e. Palanivahdi...I.
L. Rep. 1 Mad. 399.
SO
DIR ECTOR 6— Power of —to borrow Money.
See Power of Directors to Borrow
and Mortgage.
Irvine v. Union Bank of Aus-
tralia L. Hep. 4 I. A.
86 ; I. L. Sep. 8 Cal. 280.
See Power of Director* to bind Com-
pany by Bill of Exchange.
New Fleming S. & W. Co., Unit-
ed I. L. Bep. 3 Bom.
439.
DISCHARGE OF ACCUSED— Evidence for
Prosecution must all be taken before.
See The Caaea under Criminal Pro-
cedure Code, Act X. of 1872,
1815.
Revival of Prosecution.
Sec Compounding Offences. S.
Rec. v. Dgvaha I. L. Bep. 1
Bom. 64.
See Criminal Procedure Code, Act
X. of 1878, ( 396. 1.
Dijahuk Dutt I L. Bep. 4
Cal. 647.
See The Cases under Revival of
Prosecution.
DISCHARGE PROM IMI'RISONntENT
— Application for.
See Civil Procedure Code, Act X.
of 1877, §343.
Rattans! Kalianji.-.I. L. Bep.
3 Bom. 148.
DISCHARGE OF SURETY— Accommoda-
tion Acceptor — Bankruptcy of Drawer —
Trust Deed for Benefit of Creditors—,
Equitable Mortgage to Acceptor by
See Principal and Surety. 4.
Pogosk t. Bank of Bengal L
L. Rep. 3 Cal. 174.
— ■ Giving Time— Acceptance of Interest in
Advance .
See Principal and Surety. 9.
MoTab Chunder v. Govs. Chun.
BBB...L L. Bep. 4 Cal. 133.
Giving Time— Execution of Decree.
See Principal and Surety. 3.
Ramanand Koondoo e. Chow-
IjHRV SoONDKR SARUN.GY — L
L. Rep. 4 Cal. 331.
Digitized byGOO^Ie
< «9 )
DIGEST OF CASES.
( MO )
DISCONTINUANCE OF EASEMENT.
See Easement 1.
Shama Churn h. Tariney Churn.
L L. Reji. 1 Cal. 432.
DISCONTINUANCE OF FAMILY CUS-
TOM.
See Family Custom.
Rajkishen v. Ram joy Surma. ..I.
L. Rep. 1 CaL 186.
DISCRETION.
See Decree payable by Instal-
Binda Persad v. Madu Persad.
I. L. Rep. 2 Ail. 129.
Carvalho t. Nurbibi I. L.
Rep. S Bom. 203.
— — As to Amount of Commission awarded to
Administrator General, when interfered
with on Appeal. ,
See Administrator General** Act
II. of 1874, j 37.
SOMASUNDARAM V. ADMINISTRA-
TOR General... I. L. Rep.
1 Mad. 148.
-■■ — As to Costs — Mortgagee's — Usurious Con-
tract.
Set Co»ts. 1.
CauvalHo a. Nurbihi I. L.
Bep. S Bom. 302.
■ As to Costs reviewable on Appeal, but not
Special Appeal unless Order Illegal.
See Coats. 3.
FUTEEK PaROOEB a. MoHEHDER
Nath I. L. Bep, 1 Cal
386.
Interest — Award of, after Suit, at less than
agreed Rate.
See Interest. 7.
Carvalho b. Nurbihi...!. L. Bep. 8
Bom. 303.
DISHONOUR— NOTICE OF
See Hundi. 1.
GobindRah «. Mat hook a... I. L.
Bep. 3 Cal. 330.
DISMISSAL OF APPEAL TO THE
PRIVY COUNCIL FOB DE-
FAULT IN DEPOSIT OF BKCTJ-
BTTY, AND IN TRANSCRIBING!
See Appeal to the Privy Council. 4 .
Thakoor Kapilnath Sahai *.
Tub Government...!. I*.
Rep. 1 Cal 143.
DISMISSAL FOB INCOMPETENCE.
See Master and Servant.
MacGillivrav v- Jokai Assam
Tea Co. ..1 L. Bep. 8 Cal.
33
DISMISSAL OF SUIT.
See Civil Procedure Code, Act
Till, of 1859, f. 148.
Rvall o. Sherman. ..I. L. Bep.
1 Mad. 387.
DISMISSAL OF A WARRANT CASE.
See Compounding Offences. S.
Reg. v. Devaka L L. Bep. 1
Bom. 64.
DISOBEDIENCE OF ORDER OP PUB-
LIC SEBVANT— Beng. Reg. VI. of 1810, § 6
— Public Ferry— Plying Boats near.] Section 6
of Beng. Reg. VI of 1S19 prohibits all persons
from employing a ferry.boat for hire at or in the
immediate vicinity of public ferries without the
previous sanction of the Magistrate. If, in the
case of a prohibition distinctly made known to a
person, he continues to ply a boat for hire at or
in the immediate vicinity of a public terry, he
renders himself liable to punishment under the
Penal Code, for disobedience of that order.
Muktha «. Jawahir. SpankU, J I. L.
Bep. 1 AIL B87, 1877.
S- C. under Criminal Trespass). 3.
DISPOSING OF MINOR GHtL FOB
PURPOSES OF PROSTITUTION.
See Penal Code, § 872.
Reg. v. A run a Chellam...L L.
Bep. 1 Mad. 164.
DISPOSSESSION OF LESSEE BY
LESSOB— Jurisdiction of Civil and Re-
Set Act XVHX of 1878, § 05, CL m.
Abdul Aziz v. Wali Khan I.
L. Bep. 1 All. 133.
Diaxized by Google
( 441 )
DIGEST OF CASES.
DISPOSSESSION OF SECOND BY
FIRST MORTGAGEE -Re-Entry by Mm
gage* after first Mortgage settled — Cause of
Action.'] In a suit brought in 1*72, by the re-
presentatives of a second mortgagee, to recover
possession of the mortgaged land from the re-
presentatives of the mortgagor, it appeared that
the second mortgagee had obtained possession
thereof in 1846 under a decree, but had been
ousted at the suit of some prior mortgagees in
1847, upon whose being paid off by the mort-
gagor in 1870, the latter had again obtained
Held, reversing the decree of the High Court,
that the decree obtained by the second mort-
gagee in 1846, gave him as against the mortga-
gors a title to the land, which was not destroyed
by his ouster by the prior mortgagee, and that
having a good title when the first mortgagees
were paid off in 1870, the cause of action accrued
to the second mortgagee when the mortgagors .
after that period entered into possession of the
estate, to which they had no title, and that he
was entitled to recover possession of the land.
The decree of the Court of first instance wa
also reversed so far as it decreed interest upoi
the mortgage money during dispossession. Tb
mortgagee might have sued for interest, though
turned out of the land, and all that he n
titled to was possession of the land; and if ,
when he obtained possession, the mortgagors
sued to redeem, the question would be how much -
was due to the mortgagee under the mortgage,
and how much he was entitled to receive before
the mortgagors could redeem. Narain Singh
e. Shiubhoo Singh L. Sep. 41. A. 15,
1870 1 1. L. Sep. 1. AIL 320.
DISPOSSESSION* OP THIRD PERSON
UNDER SALE IN EXECUTION
OF DECKER
St* Sale in Execution of Decree. IS
Harasatqollah e. Brojonath
Ghosh I. L, Sep. 8 Cal.
728.
DISttUALIFICATION TO INHERIT.
■ See the cases under Hindu Law —
Disqualification to Inherit
-1 ■ Blindness if Congenital is a.
Set Hindu Law — Disqualification
to Inherit. 1. 9.
MlJRARJEE V. PARVATIBAI ...L L.
Sep. 1 Bom. 177.
Uhabai v. BHAvu...,„Ibid. 807.
DISQUALIFICATION TO INHESIT-
contd,
Childless Widowed Indigent Daughter-
Benares Law — not disqualified.
See Hindu Law — Inheritance —
Daughters. 3.
Srihati Una Devi v. Gokool-
ahanddas L. Sep. 5 I-
- Childless Widowhood, according to Bengal
Law, excludes from Inheritance to Fa-
ther, but not from Succession by Survi-
vorship to Sister.
See Hindu Law — Inheritance —
Daughters, a.
AUMIRTOLALL BoSE «. P.AJONEE-
KANT MlTTER.-.L. Rep. 3 L
A. 118.
- Illegitimacy — Offspring of Adultery.
See Hindu Law — Inheritance —
Illegitimate Bon. 4. 5. 0.
Rahi *. Govind I.L.Sep.
1 Bom. 97.
Naravan «. Laving ,..L L. Rep.
9 Bom. 140.
VlRARAMUTHI v. SlNGARAVELU...
L L. Rep. 1 Had. 80S.
- Incontinence of Hindu Woman does not
disqualify her from Inheriting or Keep-
ing inherited Stridhan.
See Hindu Law— Disqualification
to Inherit. 8.
Musahat Gahga Jim h. Gha-
sita LL.Bep.l All.
48.
- Incontinence of Widow after Inheritance
vested does not Work a Forfeiture.
See Hindu Law— Disqualification
to Inherit. 4.
Bhayani v. Mahtab Kuar. L L.
Sep. Z AIL 171.
See Hindu Law — Inheritance —
Widow. 1.
Nhhalo v. Kishih Lal.. L
L. Sep. 9 AIL 160.
See Hindu Low— Maintenance of
Widow. IS.
HONAHHA if. TIWANBHAT...I. L.
Rep. 1 Bom. 558.
Digitized byGOOC^Ie
DIGEST OF CASES.
(
>
DISQUALIFICATION TO INHERIT—
conld.
— Incontinence of Mother disqualifies from
Inheriting to Son.
See Hindu Law— Disqualification
to Inherit. S-
RaMNATH ToLAPATT«> V. DltRGA
SuNDARl DeBI... .L IhBep.
4 Cftl. 050.
Leprosy— Si nious Ulcerous— is a.
See Hindu Law- Disqualification
to Inherit, e.
Amamta v. Rawabai...!. "L. Rep.
1 Bom 654.
Loss of Caste is not a.
SrrjHindu Law- Disqualification
to Inherit. 7.
HONAMMA ». TlMANBHAT ...I. L.
Rep. 1 Bom, 889.
DISQUALIFYING INTEREST OF
JUDGE— Criminal Proceedings— Irreg tdariiy
—Effect of Water by Prisoner— Judge giving
Evidence.'] The prisoner, while occupying the
post of jailor, was accused by one of the jail
clerks of falsifying his books and defrauding the
Government. The District Magistrate, H-,
inquired into the matter, and by his order the
prisoner was placed on trial for criminal breach
of trust before a Bench of Magistrates consisting of
//.himself and four Honorary Magistrates. One
of the latter was £., who at the time of the
commission of the alleged offences, and at the
time of trial, was officiating superintendent of
the jail and the prisoner's immediate superior.
The prisoner and his pleaders were asked before
the commencement of the trial whether they
had any objection to the composition of the
Bench, and they distinctly said that they had
none whatever. The prisoner's consent, how-
ever, was not formally recorded, and after the
charges were drawn up, his counsel objected to
the Bench as formed. H. instructed the Go-
vernment prosecutor to prosecute, and both H.
and £. gave evidence for the prosecution, After
the case for the prosecution was closed, two
distinct charges were framed against the accused,
the first of debiting Government with the price
of more oil-seed than he actually purchased,
and the second of receiving payment for certain
oil at a higher rate than he credited to Govern-
ment. As regards the first charge, the prisoner
DIflQUALIFYTNQ
JUDOE— run Id.
was alleged to have received money for the oil-
seed on the strength of certain vouchers which
he had induced L. to countersign as correct ;
and as to the second charge, the prisoner's
defence was that /.. had himself sanctioned the
sale at the rate credited to Government. On
the accused giving the names of bis witnesses, L.
was deputed by his brother magistrates to exa-
mine some of them who were connected with Ike
jail, and to take down their statements at onee
in the presence of the agents of both parties, in
order to prevent any suggestion that the wit-
nesses had been tampered with, and " to guard
against subsequent deviation." The deposit ion i
so taken were placed on the record " for the use
of either party, though not in themselves as
evidence." The prisoner was convicted. On
a motion to quash the conviction; —
Held, that under the circumstances of the case
the presence on the Bench of L., who had a sub-
stantial interest in the prosecution, vitiated the
proceedings and necessitated the quashing of the
conviction. It is one of the oldest and plainest
rules of justice and common sense that no man
shall sit as judge in a case in which he is sub-
stantially interested, and that is the law of India
as much as it is the law of England.
Without saying that it is illegal for a Magis-
trate to give evidence in a case with which he
is dealing judicially, it is, on general principles,
most undesirable that a Judge should be examin-
ed as a witness in a case which be himself is
trying, if such a contingency can possibly be
avoided. The mere fact that H. and L. were
necessary witnesses for the prosecution, was a
most cogent reason why neither of them should
have been members of the Bench by which the
prisoner was to be tried. Though a Magistrate
may not be incapacitated from dealing with a
case judicially, merely because in his character
of Magistrate it may have been his duty to
initiate the proceedings, yet it was wrong that
the District Magistrate should deal with this
case judicially when there was no necessity for
his doing so, when he had himself discovered
the alleged fraud, and initiated the prosecution,
and was one of the principal witnesses against
The examination, in the manner stated above,
of the witnesses named by the accused, was a
most unfair and irregular proceeding, and was
illegal and unjustifiable.
Di,iii,.db»Goo<^le
DIGEST OF CASES.
( *« )
INTEREST OF
Criminal proceedings are bad unless conduct-
ed in the manner prescribed bylaw; and if
they ate substantially bad in themselves
defect will not be cured by any waiver or
sent of the prisoner. Rhg. it. Bholanath Sen.
Macphcrstm and Mortis, JJ...L L. Rep. 2 Cfil.
28, 1876.
See Evidence. 22.
DISSENT OP COURT FROH VERDICT
OP JURY.
See Criminal Procedure Code, Act
X. of 1872, ( 263.2.
Ihfx. v. Bhawani ...I. L. Sep. 2
Bom. 625.
See Appeal— Criminal. 2.
Reg. v. Hari...I. L. Bep. 2Boin
DISSENTIENT
Right of— on a Transfer of Assets to New
Company.
See Company— Winding up. 1.
In re THE Fleming S. & W. Co.
(Limited). I. L. Sep. 3
Bom. 298.
DISSOLUTION 07 PARTNERSHIP-
Suit for — Jurisdiction exists where all
partners reside, as well as at Place of
Business.
See Jurisdiction. 6.
Rahasami
LL. Sep. 1 Had. 840.
DISTINCT OFFENCES— Separate Charges
of.
See Criminal Procedure Code, Act
X. of 1872, ( 462.
Reg. v. Hanmanta...!. L. Bep.
1 Bom. 810.
See Criminal Procedure Oode, Act
X. Of 1872, §§ 4B3, 454.
Empress ii. Dunonjoy Baraj.,,1.
L. Eep. 3 Cal. 040.
DISTINCT SUBJECTS— Suit embracing
two or more — Court Fees.
See Court Feee. 7.
Chamaili Rani v. Ram Dai. ..I. I>.
Bep. 1 All. 052.
DISTRAINT.
.SwHadras Act VOL of 1SSS, f 49.
Shrinivas v. Emperumana...!. L.
Rep. 2 Had. 42.
Suit to set aside Wrongful.
See Bight to Sue. 9.
HokroNarainv.ShoodhaKrish-
TO...1 L. Bep. 4 Cal. 890.
Suit for Value of Crops— Jurisdiction of
Small Cause Court.
See Beng. Act VOT. of 1889, § 98.
Hyder Alc v. Jafar Ai.l.X L.
Bep. 1 Cal. 18S.
DISTBIBTJTION— Postponement of Period
of— of Gift of Residue to a Class.
See Will. 4. S.
Masevk ». Ferqusson I. L.
Bep. 4 Cal. 804, 870.
DISTRD3UTI0N0F EXECUTION SALE
PROCEEDS OP PROPERTY OF
DEFENDANT— Pauper Suit— Prero.
gative Right of Crown in respect of Court
Fees.
See Prerogative of the Crown.
Collector or Moradabad p. Mir.
HAMMAD DaIU KHAN I. L,
Bep. 2 All. 196.
DISTRIBUTIONS— STATUTE OF— (22
* 23 Car. IX, C. 10)— Advancement-
Rule as to — not preserved to Parsis.
See Act XXI. of 1866, J 6.
Dhanjibhai e. Navazbai...I. X*
Bep. 2 Bom. 76.
DISTRICT COURT OF AXYAB— Jurisdic-
See Jurisdiction. 9.
DISTRICT COURTS MENTIONED IN
REGISTRATION ACT VIII. OF
1871, SUBJECT TO SUPERIN-
TENDENCE OF HIGH COURT.
See Review. 8.
Reasut Hossein v. Hadjee Ab.
D001.LA11...L. Rep. 31.4.
221 ; I. L. Bep. 2 Cal. 131.
D.gmzed by GoOgle
( «7 )
DIGEST OF CASES.
DISTHrlCT JUDGE— Appeal to— in Suits for
Rent less than Rs. 100 — Question of Pro-
prietary Right.
See Act XVm. of 1873, { 98. 8.
Bisheshur Singh j>. Musst. Su-
OUNDHI...I. L. B«P. 1 All
866.
Appeal to — Value of Subject. matter of
Dispute.
See Bengal Civil Courts' Act VI.
of 1871, s as.
Kali Charan Rai v. Ajudhja
Rai...I. L. Hep. S AIL 148.
——jurisdiction of — Suit against a Municipa-
lity.
See Suit against a Hunic ipality.
The Ahmedabad Municipality
Mahomed Ismail... I. L.
Hep. 3 Bom. 146.
Jurisdiction of — Suit against Defendants
resident within Jurisdiction, For disturbing
Plaintiff's Right to fish in the Sea.
See Jurisdiction. 10.
Baban b. Nacu...L L. Bap. 9
Bom. IB.
Power of— to interfere with Order for Local
Investigation.
See Local Investigation .
Nirod Krishna Roy v. Wooma-
NATH MoOKERJBE I. Ii.
Hep. 4Cal. 718.
"— Power of — to transfer to his own Court,
Execution Proceedings pending in Subor-
dinate Court.
See Civil Procedure Code, Act
TZU. of 1858, §6.
Gaya Pakshad v. Bhup Singh...
L JL. Bop. 1 AIL 180.
DISTRICT MAGISTRATE— Course to be
pursued by — on Improper Discharge of
Accused Persons by Subordinate Magis-
See Criminal Procedure Code, Act
X. of 1873, 5 285.
DijahurDutt I. L. Rep. 4
Cal. 647.
See the cases under Revival of Pro-
■ecution.
DISTRICT MAGISTRATE— eontd.
Power of— to remand a Case triable by a
Magistrate only, after a Discharge by
Subordinate Magistrate.
See Criminal Procedure Code, Act
X. of 1873, §895.1.
DijahurDutt I. L. Rep. 4
CaL 647.
DISTURBANCE OF OFFICE- -Of Dancing
Girl.
See Dancing Girl.
Kamalam «, Sadaoopa Sahi...
L L. Rep. 1 Mad. 3S6.
1. -QJf« of Chalwadi— Caste Question.']
The plaintiff was the hereditary holder of the
office of Chal-aadi, or bearer.on public occasions,
of the insignia or symbols of the Lingayat caste
at Bagalkot. No fees were as of right appurte-
nant to that office, but members of the caste
might bestow voluntary gratuities on the Chal-
wadi,
In a suit by the plaintiff against an intruder on
his office to establish his right to perforin the
duties of Chalwadi, and for damages for loss of
Held, that the action would not lie if it were
brought merely for gratuities received by the
uder, as moneys alleged to be received by the
to the use of the plaintiff.
Held, also, that the claim of the plaintiff to be
Chal-aadi of the Lingayat caste at Bagalkot was
a caste question within the meaning of the
unrepealed portion of CI. I off 21, Regulation II.
of 1817, for the alleged duty of the Chal-aadi
being to carry the insignia of tbe caste at public
ceremonials, without any right to levy fees or
receive salary for the performance of that duty,
it was essentially a matter which concerned the
caste exclusively. Shankara Marabasapa «.
Hanma Bhima. Westrapp, C.J., and iieivill, J...
I. L. Sep. 2 Bom. 470, 1877.
9. ——Damages — Vatandar Joshi — Injunc-
tion—Onus Probandi.] The burden of proving
that the vatandar josMi of a village is not entitled
to officiate and take fees in the families of any
particular caste, lies upon the persons asserting
the exemption. The vatandar joshi of a village
is entitled to recover damages from a person
who has intruded upon his office and received
fees properly payable to him ; but the Court will
not grant an injunction against such intruder
which would have the effect of forcing upon any
Digitized byGOO^Ie
( *« )
DIGEST OF CASES.
(
MSTTJRBANCE OF OFFICE-.-.
section of the community, the scrv
priest whom they are unwilling to recognize, and
forbidding them to employ a priest whose minis-
trations they desire. Raja Shivappa q. Khish-
NaBNaT. Meivill and Kemboll, JJ..X L. Hep.
3 Bom. 338,1878.
DrVEHTING 07 PROPERTY VESTED
BY INHERITANCE.
Set Hindu Law— Adoption. 13.
Kally Pbosonno v. Gocool
Chusd«r...L L. Rop. 2 CaL
990.
DIVESTING OF VESTED INTEREST
GIVEN BY WILL.
Set Will. 9.
C. M. Hunter. ..I. L. Rep. 4
CaL 420.
DIVISION BENCH— Appeal from Judgment
of.
See Letter* Patent — Allahabad- -
01. 10. 1.
Ghasi Rah o. Mvsahat Nuraj
Begum.. .1 L. Rep. 1 All.
31.
Appeal from Judgment of — where Judge:
differ, not confined to Points of Differ.
See AppBftl -Civil. 17.
Ram Dial*. Rah Das L L.
Rep. 1 AIL 181.
DIVORCE— Hindu Law.
See Hindu Law— Divorce.
KUDOMEE DOSSEE V. JOTEBRAH
Kolita.,.1. L. Rep. 3 CaL
SOS.
See Hindu Law — Inheritance
Illegitimate Son. 4.
Rahi v. GOVIHD...L L. Bop. 1
Bom. 97.
See Penal Code, § 494.
Rso v. Sahbhu.,.1. L. Rap. 1-
Bom.347.
— Hahomedan Law.
See the cases under Mahornednn
Law— Divorce.
L Act IV. of 1869— Suit far Dissolution
of Marriage — Adultery — Desertion.] In a suit
by a wife For a dissolution of her marriage on the
Kround of her husband's adultery and desertion,
DIVORCE —contd.
the adultery was proved, and it was Eound that
the wife, notwithstanding the gross misconduct of
her husband, continued to live with him for some
years, during which time she supported her hus-
band and herself by her own earnings, he contri-
buting nothing for her support; that eventually,
under the pressure of pecuniary difficulties
brought about by her husband's extravagance and
dissolute habits, they came to an arrangement
by which she went to live with her friends, and he
at his mother's house, until they could find means
again to provide a common house ; that for two
years previously to the separation, though they
lived together, no conjugal intercourse took
place between them, owing to the husband's
misconduct ; that he left his mother's house
without telling his wife where he was going, and
subsequently went to Madras, where he had
Held by Kennedy J., following Fittgeratd v.
Fitmgerald (L. Rep. I P. & D. 694), that the
separation having originally been by mutual
consent, desertion could not take place until
cohabitation had been resumed ; desertion not
being proved, the wife was only entitled to a
decree for judicial separation.
Held on appeal, that though where the sepa-
ration is the act of the wife, or where she of her
own free will assents to a complete separation,
there can be no desertion; nor until the husband
and wife have again cohabited, can subsequent
conduct transform what was a voluntary sepa-
ration into desertion by the husband ; yet the
present was not a case of that kind. The sepa.
ration was not brought about by the wife, nor
tn accordance with her wishes, but by the mis-
conduct of the husband, and that, under the
circumstances, the desertion was proved, and
petitioner entitled to a decree for a dissolution
of marriage. Wood c. WooD...G«rrt, C.J., and
Markby, J...L L. Rep. S CaL 486 ; 1 CaL
Rep. 48ft, 1878.
S. Divorce Act IV, of \lb$, § 14 -Delay
— Connivance.] Though there is no absolute
limitation in the case of a petition for dissolu-
tion of marriage on the ground of the adultery
of the wife, yet the first thing which the Court
looks to when the charge of adultery is preferred
is whether there has been such delay as to lead
to the conclusion that the husband had either
connived at the adultery or was wholly indiffer-
ent to it ; but any presumption arising from
apparent delay may always be removed by an
Digitized byGOO^Ie
DIGEST OF CASES.
DIVORCE— contd.
explanation of the circumstances. That prin-
ciple is recognized in { 14 of Act IV. of 1869.
Williams e. Williams. Garth, C.J., Markby
and Birch, J] ..I. L. Rep. 3 Cal. 638, 1878.
8. ZWwn* Act IV. of 1S69, s 3, a. »-i
IO and f 37 — Desertion — Adultery— Judicial
Separation— Alimony — Form of Decree— Costs .]
A husband and wife living in British Burmah
separated in 1861 ; the wife, for reasons of con-
venience, going to England, but with no inten-
tion of a permanent separation. After her de-
parture her husband contracted an adultt
permanent connection with a Burmese wo
Which was however, unknown to the wife, a
as exact information went, until 1875. During
the separation he kept up cocrespondence w
his wife, and in some of his letters expressed
intention of never returning to England ; and
in 1868 expressed his willingness Ki ail
wife in obtaining a divorce.
The husband and wife continued to live apart
till 1876, when the wife, having received posit!
information of the adulterous connection formed
by herhusband,returned toBurmah.not with the
intentioo of demanding a renewal of conjugal
relations, but with the view of commencing pro-
ceedings for a divorce. During the period of
the separation the only complaint ever made by
the wife, was as regards the insufficiency of the
allowance made her by her husband.
Held, that the wife was not entitled to a
divorce, but only to a judicial separation, as
there was no evidence of desertion.
Desertion, by the Indian Divorce Act (IV.
of 1869) implies an abandonment against the
wish of the person charging it, and though
" abandonment " is not defined, yet the effect of
that clause is to introduce into the Indi
Statute Law, the view adopted by the Courts
in England in construing the English Act.
The words " against the wish " must be 1
atrued as meaning, contrary to an actively
pressed wish of the person charging, and :
withstanding the resistance or opposition of such
person, and not simply as meaning an act done
when the wish of the person affected by
the other way.
The decisions of the Probate .and Divorce
Courts in England, must usually and necessarily
be a guide to the Courts in India under the
Divorce Act, except when the facts of any parti-
cular case, arising out of the peculiar tiicum
DIVORCE-roMW.
ances of Anglo-Indian life, constitute a situa-
>n such as the English Court is not likely to
ive had in view.
Even if the permanent adulterous connection
formed by the husband amounted to desertion,
uld only have commenced when the wife
became aware of it. The wife was bound to
evidence of conduct on her part showing
unmistakably that such desertion was against
her will ; in other words, to have taken some
steps towards the renewal of that intercourse
which had been so long suspended. This she
had not done ; the facts, therefore, which were
relied upon as desertion, amounted only to a
prolonged and systematic adultery.
In granting alimony to a wife, the Courts
ight not, even if they have the power, to tie up
the property of the husband (he being a mercan-
nan and requiring the unfettered use of his
capital), or convert alimony into an absolute
interest in, and charge upon his estate. Hyde
v. Hyde (4S. & T. 80) followed.
With regard to the costs, the Court said {p.
281) ; " We End that this is an appeal which
was not unreasonably preferred. There were
undoubtedly points of difficulty in it, and
though it is true that the question of cruelty
was pressed on one side, we must, on the other
hand, bear in mind the aggravated and unex-
pected turn given to the case in the Court be-
low by the charge of misconduct suddenly
brought against Mr. Fowle (the appellant).
We think, therefore, in accordance with the
practice which is laid down in Jones v. Jones
(L. Rep. 2 P. &. D. 333) that the wife should
have the reasonable costs of her appeal." To
give the Courts in this country jurisdiction to
dissolve a marriage solemnized out of India, the
adultery complained of must have occurred in
India. Per Jackson, C.J. (Offg.) Fowls a.
Fowle. Jackson, C.J., (Offg.), Markby and
Prinsep, JJ...L L. Rep. 4 Cal. 280 ; 3 C&L
Sep. 484, 1878.
DIVORCE ACT IV. OP 1889.—, 3. CI.
9—55 10 and 37— Desertion— Adultery.
Sre Divorce. 3.
Fowle 3. Fowle. ..L L. Rep. 4
Cal. 260.
§ 14— Delay.
See Divorce. 9.
Williams v. Williams I. L.
Rep . 3 Cal. 688.
D.gmzed by G00gle
DIGEST OF CASES,
DOWEE- ran«.
See Probate. 5.
In tkt Goods of Sir J. Wenyss...L
L. Bep. 4 CaL 7S1.
See Pone.1 Code, f 804a.
Empress c. Safatulla L L.
Rep. 4 Cal. 810.
DOMICILE — English — Applicability of Act
III. of 1874 to Persons having an.
Alluhodv o. Bra ham I. L.
Sep. 4 Cal. 140.
Service under the E. I. Company — Act X. of
1S65, (( 2, 5, 10.] A Scotchman who had en.
tend into the service of the East India Company
and continued in that service after the Act of
1858 (Hand 22 Vict., CI. 106,) transferring the
Government of India from the East India Com-
pany to the Crown was passed, died in 1878,
leaving a holograph will, which was not attested
according to the provisions of the Indian Suc-
cession Act (X. of 1865}, but was admittedly
good according to the Scotch law. Held, on an
application for a declaration that the document
was a good will, and for a grant of probate, that
the deceased had acquired an Anglo-Indian
domicile, which he had not lost at the time of his
death, notwithstanding the Act of 1858 and the
Succession Act, and, therefore, the will not
having been properly executed, probate was
refused. Wauckopt v Wauckopt (4 Court of
Session Cases, 4th Series, 945,) followed.
In the Gauds o/EluoT. Pontifex, J I. L.
Bep. 4 Cal. 108 ; 2 Cal. Bep. 486, 1878.
DOWER— Alienation by Heir-at- Law— Right
of Widow to follow Estate into hands of
ben&fide Purchaser for Value.
See JCabomedan Law— Eight of
Creditors to follow the Estate
of Debtor into the hands of
a Purchaser, from the Heir.
SVUD BaYAZET HoSSEIN F. DOOLl
Ckand «...Il Rep. 5 I.
A. Sll ; X. L. Bep. 4
Cal, 402.
■ " Prompt " and " Deferred " — Custom.
See Mahomed an Law— Dower. 3.
Taufik.Nissa v, Ghulau Kam.
bar I. L. Bep. 1
AIL 606.
Prompt and Deferred — Demand — Petition
for Leave to sue in formi Pauperis —
Limitation.
See Hahomedaii Law— Dower. 1.
Range Khajooroonisa v. Ranee
Rveesoonis3a L. Bep. 2
;L A. 235.
Prompt and Deferred— Right of Wife to
refuse Cohabitation until Payment of,
5»Mahomedan Law— Dower. 2.
ElODAN 11. Mazhar Hussain...L
L. Bep. 1 All. 483.
BOVTL.TEHBIBH— Registration.] A dual-
frhrist, which was merely a memorandum or re-
cord by the zemindar's agents of the rent which
had been settled between the zemindar and the
ryots, and to which the ryots affixed their signa-
tures in testimony of their admission of the
19 of. the jumma therein recited as
having been imposed on them : — Held, not to be
Contract, or a document which required to be
either registered or stamped. Gltngapeksad
v. Gogun Sihoh. yackson and McDonnell,
JJ LL- Bep.S Cal. 322 ; 1 Cal.
Bep. 828, 1877.
DRAWER AND ACCEPTOR OF BILL
OF EXCHANGE-] oinder of— De-
fendants.
See Civil Procedure Code, Act X.
of 1877, § 22.
And see Practice— Civil. 6.
Pestonjhh v. Mirza Maho-
med., XL. Bop. 3 Cal.
541.
DBA WEB AND ACCEPTOR— Of Hundi-
Residing within Jurisdiction of different
Courts — Misjoinder of.
See Procedure- Civil. 1.
Basant Ram b. Kolahal..,L
L. Rep. I All. 383.
DBAWEB, DRAWEE, AND PAYEE
OF HUNDI- RIGHTS AND LIA-
BILITIES OF.
Set Hundi. 2.
H KAHAKDAS *. DHAFABHAt.
L L. Rep. 3 Bom. 182.
D.gmzed by GoOgle
DIGEST OF CASES.
DUE DILIGENCE.
See Execution of Decree. 18.
SADIK ALI «. Mil HAMAD HUSAIN.
I. L. Rep. 2 AD. 384.
DUES FOR RELIGIOUS SERVICES
FBRFORKED-^t VIII. of 1850, § 32—
Right to perform Religious Services] A suit
vices performed ] and if to determine the right
thereto it becomes necessary to determine in-
cidentally the right to perform those religious
services, the Court has jurisdiction to do so.
Tiru Krishhama Chariarv. Krishna Swaui
Tata Charia...L. Rep. 61A. 120, 1879 ;
I. L. Rep. S Had. 62 ; 6 Cal. Rep. SOI.
DURESS— ,4 voidance of Contract — Principal
and Agent— Compromise of Criminal Charge-
Authority.] The agent of the responder
British subject, who had been employed by the
respondent to purchase timber for him, placed
his mark on certain logs of timber, some of which
had been cut by himself, and some by other per.
sons who bad been employed by the appellant.
The appellant thereupon complained to a Siam-
ese officer, styled binyaiin, under whose orders
the respondent was arrested, and put into i
with an iron collar round his neck, and charged
with having stolen the logs.
By the terms of the treaty between the British
and Siamese Governments, it was provided that
" with reference to the punishment of offences or
settlement of disputes, it is agreed that all cri-
minal cases in which both parties are British
subjects, or in which the defendant is a British
subject, shall be tried and determined by the
British Consul."
While in custody under the above circum-
stances, and to get rid of the charge of having
stolen the logs, the respondent's agent made an
agreement to purchase them from the appellant
on behalf of the respondent, at a price consider-
ably above their value : —
Held, that the respondent was entitled to repu-
diate the agreement as having been made by his
agent when under duress; and was entitled to
recover certain moneys paid and the value of
certain elephants delivered under it, less the
value of the appellant's timber which the re-
spondent had, or might have bad, possession of
under the agreement.
DURESS— eontd.
Held also, that the respondent's agent being
custody on a criminal charge, had no au-
thority to part with his employer's property, or to
^ an agreement to part with it, to relieve
himself from such a charge. If there had been
my question of a civil nature, it might have
been within the scope of his authority as a
general agent to compromise such a claim, but
when charged with personal misconduct and
a crime, which it could not be assumed that his
principal had authorized, no authority from the
employer could be implied that his property
should be handed over to the man making the
charge, in order to relieve his agent from it.
Semble — Though by the law of England if a
man is under lawful imprisonment for a civil
debt, an agreement made by him while subject
to restraint is not, by reason of his being so
subject to it, capable of being avoided, provided
It be not unconscionable, yet imprisonment in
a country where there is no settled system of
law or procedure, and where the Judge is invest-
ed with arbitrary powers, is duress, which will
avoid a contract made under such circumstan-
ces. Moung ShoavAtt v. Ko Byaw L.
Rep. S I. A. 61, 1876 J L L. Rep.
lOftLaao.
DTJRFATHI TALOOK.
See Patni Talook.
Brindabun Sircar c. Brindabun
Dey...!,. Rap. 1 LA. 178.
DUTY— Ad valorem— on Probate taken out
after Court Fees Act came into operation.
See Court Fees. 8.
Gasper,. .1. L. Rep. 8 Cat 738.
Ad valorem — Probate — Annuity charged On
Testator's Estate.
See Court Fees. 6.
RusHTuN...I.Xi.Rep. 8 CaL73fl.
Liability of Property on which— has been
paid in England, to pay— in India.
See Administration. 4.
Morch.,.1. L. Rep. 4 Gal 729.
Probate — Exemption from.
See Probate Duty, 3.
Gladstone... I. L. Rep, 1 Cal.
168.
Probate — paid on Probate taken out before
Act VII. of 1S70, leviable on Probate
taken out after that Act.
See Court Fee*. 8.
Gasper.. . I. L. Rep. 3 Cal. 783.
Digitized byGOO^Ie
DIGEST OF CASES.
DUTY— cenid.
— Probate— Annuity charged on Testator's
Estate.
See Court F«ea. 9.
Rushtoh.,.1. L. Bep. S Cal.
786.
Probate— Annuity— " Value."
Set Probate Duty. 1.
Rasichandra Laksiimasji.,.1. L.
Bep. 1 Bom. 118.
DUTY 07 COUBT EXECUTING DE-
OBEE 07 ANOTHEB COUBT.
See Execution of Decree. 16.
Mercer v. Narpat RaI-J. L.
Bep. 1 All. 780.
DUTY 07 JUDGE IK FBAMING IB-
SUES.
S« Issues. 1.
Apaya v. Rama I. L. Bep. 3
Bom. 210.
DUTY 07 FEBSONS BENDING DAN.
GEBOUS GOODS.
See Negligence.
Lyell o. Ganga Dai .X L. Bep.
1 AH. eo.
DVYAMUSHYANA-Onlj Sen of Separa-
ted Brother.
See Hindu Law— Adoption. 8.
Srikati Uha Devi b. Gokool-
anandDas ..L.Eep. 61. A.
40 ; I. L. Bep. 8 CaL 687.
DWELLING.
See Jurisdiction. 3.
Fatiha Began o. Sakina Begam.
I. L,|Bep..l All. 61.
EASEMENT- Abandonment of.
See Basement. 1.
■ Acquisition of. -
Apparent and Contin nous — Grant of, by
Implication.
Sec Easement. 4.
Artificial Watercourse— Right to Flow of
Water through.
See Easement. 4.
Discontinuance of.
See Easement. 1.
Interruption of User.
See Basement. 1.
■ Interruption of — Acquiescenoe.
See Limitation. 48.
SUBBRAMANIYA « RAHACHAHDRA
I. L. Bep . 1 Kad. 336, 330.
EASEMENT— amid.
Jalkar is not an.
See Jalkar.
Parbuttt Nath e. MudhoParok.
L L. Bep. SCal. 376.
Light and Air — Appropriation.
See Light and Air.
Sarubhai «. Bapi:...I. L.
Bep. 3 Bom. 660.
Light and Air — Obstruction to.
See Mandatory Injunction.
Jahnaoas p. Atuaram.,1. L.
Bep. 2 Bom. 133.
Prescription — Acquisition of Right by.
See Easement. 1.
I. Prescription— User— Limitation Act
IX. of 1871, t a7 — Abandonment — Discontinu-
ance.'] In a suit for a declaration of the plaintiffs
right of way over a blind lane leading from a
public road to the plaintiff's house, which lane
the defendant, who resided at the end of the lane,
had obstructed so as to prevent access to the
plaintiffs house, it appeared that the house in
respect of which the easement was claimed be-
longed in 1S55 to one H. C-, during the time of
whose occupation there was user of the right of
way over the lane to the door of the house, but
that H- C. had had the door bricked up and
built a wall across, and blocking the entrance
to the lane. In April 1865 the house was sold'
by M. C, and in June 1867 was conveyed by the
purchaser to the plaintiff. From the blocking
up of the door until the plaintiff's purchase no
user was proved. The suit was brought in June
1875, about a month after the erection by the
defendant of the obstruction complained of : —
Heldby Phear, J., that supposing there was an
easement during the earlier part of H- C.'s pos-
session of the house, it was entirely abandoned
and intentionally put an end to by him, by the
blocking up of the door. Without deciding
what the effect of such abandonment might be,
qui abandonment, which might perhaps not be
materially operative until something had been
done by the defendant on the faith of it, which
should make the abandonment a cause of estop-
pel against the plaintiffs preferring his claim ;
yet the abandonment in the shape of effectually
stopping up and putting an end to the means
of access to the land of the defendant had the
effect of putting an end 10 the continuous enjoy,
ment of the easement, whether actual or ton.
Digitized byGOO^Ie
DIGEST OF CASES.
stmctive, and, therefore, that the plaintiff had
(ailed to make out the basis of his right, which
was necessary to satisfy § 2J of Act IX- of 187:
Held, on appeal — 1st, that the plaintiff's claim
to the property in the soil of one-half of the lane,
on the ground that, it being a road lying be-
tween his house and his neighbour's, the pre-
sumption of law was that be was entitled to the
half of it usque ad medium filum of the space
between the two houses, was groundless, as be-
ing inconsistent with the right of way claimed
by him and with his own title deeds, and because
the presumption on which he founded his claim
was only applicable to a highway, and not to a
private occupation road, such as the lane in
question was alleged to be.
Held, andly, that the plaintiff had failed to
establish a twenty years' user within the mean-
ing of i 27 of Act IX. of 1871, and that the
discontinuance of the user, caused by the brick-
ing up of the door, had the effect of preventing
the acquisition of the statutory right. The
term " interruption" in § a? of Act IX. of 1871,
means an obstruction or prevention of the
of the easement by some person acting adversely
to the person who claims it, and is altogether
inapplicable to any voluntary discontinuance of
the user by the claimant himself. The term
"abandonment," on the other hand, as applied
to easements, means generally the voluntary
and permanent relinquishment by the dominant
owner of a right which he has actually acquired.
In this sense there was no abandonment in this
case, because the plaintiffs right was never
actually acquired, but Only in the course of ac-
quisition, at the time when the door was bricked
up.
" Discontinuance" more properly described
what occurred at that time , not a " discontinu-
ance" by adverse obstruction, as the term is
somewhat inappropriately used in the explana-
Dation to § 7, but such a voluntary discontinu-
ance of the user of the easement as prevented
the statutory right being acquired.
No one can be said to be in open enjoyment
of an easement, who bas purposely, and with
the manifest intention of preventing the user of
it, created some obstruction of a permanent
character which renders the enjoyment of the
easement, so long as the obstruction lasts, im-
possible. This is very different from mere non-
user. What H. C. bad done in this case was to
XABMMXBT—amld.
incapacitate himself by his own act from any
possible use or enjoyment of the way in ques-
tion, and it was impossible to say that during
the time this incapacity continued, he was open-
ly enjoying the easement, and claiming right
thereto, within the meaning of g 37 of Act IX.
of 1S71. Shana Churn Auddy e. Tariney
Churn Bannrrjbe. Gatth, C.J., and Pontifex,
J L L.Bep. lOal. 433, 1876.
9. Limitation—Prescription— Custom.]
The plaintiff and defendant were owners, re-
spectively, of two adjoining houses, the space
between which was the property of the plaintiff.
The roof of the defendant's house, built more
than thirty years previously, overhung this space.
The plaintiff having raised his house one storey,
placed on it a roof, which overhung that of the
defendant's house, and, under an alleged custom
of the country (Ahmedabad), claimed a right to
remove that portion of the defendant's roof which
projected over his (plaintiff's) lands. He also
sued to establish his right to an easement as
against the defendant of compelling the latter to
receive the rain-water from the newly -built roof
of the plaintiffs house ; —
Held, as to the former claim, that the plaintiff
was not entitled to cut off the defendant's eaves
for the purpose of building. The Limitation
Act prescribes twelve years as the time within
which a suit must be brought for the possession
of immoveable property. After the lapse of that
time the right to the possession of land perishes,
along with the capacity to enforce it by suit-
Taking " land" to include immoveable property
of a tangible kind, the plaintiff could not after
twelve years recover possession of the space
occupied by the defendant's projecting roof,
which must be regarded as part of that column
resting on the area belonging to the plaintiff
and extending indefinitely upwards. If the en-
joyment by the defendant were to be regarded as
a mere easement, stilt it had ripened into a
right by interrupted user for upwards of thirty
years. From either point of view the defendant's
right was made out to a continued possession or
enjoyment inconsistent with the right the plain-
tiff sought to have declared.
Held also, as to the latter claim, that the
plaintiff could only acquire such an easement
against his neighbour's property by contract or
prescription, on neither of which did the plaintiff
D,„i„.db»Googlc
DIGEST OF CASES.
EASEMENT- amid.
No custom can be allowed to override the
positive prescriptions of the Limitation Act.
MOHAMLAL Jf.CHAND V. AmRATLAL BeCKAEDAS.
West and Pinhey, JJ...I. h. Bep.3 Bom. 174,
1878.
8. Right of Riparian Proprietor — Pre.
scription — English Common Lav — Act IX. of
1S71, f 37.3 Under the English Common Law
there could be no acquisition of a prescriptive
right of easement, unless the enjoyment v
such a nature that a grant of an easement 1
be presumed to have been made ; and this
not be presumed if the enjoyment was shown
to have been against the consent of the
* owner of the servient tenement, without hi
knowledge, or in pursuance of and depending
on the license or permission of the owm
each occasion of user. Further, it was nc
sary that the user should be of such length that
a grant could be presumed to have been made,
and for this it was held necessary that imme-
morial user should be shown. In course of
time user from the first year of Richard I., and
subsequently 20 years' continual user, was held
a sufficient period from which it might be pre-
sumed that there had been immemorial user,
and that at some remote period a grant had
been made, though since lost. This .last pre-
sumption, however, was liable to be rebutted if
it were shown that there had been an interrup-
tion at any time prior to the commencement of
the 20 years, because that would negative im-
memorial user, and then a grant could not be
presumed. This last mode of rebutting pre-
sumption of a grant arising from 10 years' en-
joyment was abolished by the Prescription Act,
and 20 years' continuous enjoyment up to the
date of the suit is all that is required by that
Act to establish a right of easement. But the
enjoyment must stilt be ' as of right,' as under
the common law. The effect of the Prescrip-
tion Act, on the whole, has been in England lo
facilitate the acquisition of easements by intro-
ducing a fixed and comparatively short term of
enjoyment by which they may be acquired, and
abolishing one of the defences available in the
case of a claim at common law; but a claimant is
still at liberty to proceed at common law if it
suits him to do so. In India there is no common
law on the subject, and since Act IX. of 1 871
came into operation the only way in which an
easement can apparently be acquired is by the
fulfilment of the conditions of J 37 of that Act-
A claim to an easement is to be distinguished
from a claim to damages for disturbance of an
existing easement ; but if in the latter case the
right to the easement is denied, before the
plaintiff can recover be must prove incidentally
the acquisition of the easement for the dis-
turbance of which he claims damages, and so
to do he must apparently fulfil the conditions
off 37 of Act IX. of 1871.
But a claim by a superior riparian proprietor
to have the drainage water from his lands flow
off in the usual course is not an easement
within the meaning of Act IX. of 1371, but a
right of property which exists independently of a
right of easement, a right ex jure natura.
A lower reparian proprietor can only justify
the obstruction of the flow of the stream, forcing
back the water obstructing the drainage of the
superior riparian proprietor's land, if he has ac-
quired an easement to do it. In the absence of
proof of the acquisition of such a right, such an
interference with a right of property of the
superior riparian proprietor, and is actionable,
whether special damage has accrued or not, be-
tbe injury to the right imports a damage ;
and the right of action continues so long as the
obstruction is continued, there being a continual
of action from day to day. Subbkaha-
Awar v. Ramackandka Rau. lanes,
C.J. (Offg.), and Tarrant, J L L. Rep. 1
Had. 336, 1877.
S. C. under Limitation. 48.
4. Artificial Watercourse — .flow of
Water.'] In i860, R., whom the plaintiff now
represented, agreed with the Government for a
lease of a plot of ground called D., for the pur-
pose of tea-planting, and got possession. In
1864 he opened the channel in dispute for the
of that estate, the channel being in its whole
:nt an artificial one. It was taken off from
.vine in Government waste land, and passed
through land, (which in 1864 belonged to the
Government, but now belonged to the defendant)
reached the D, estate. The defendant's
adjoined the plaintiffs, and the stream
after passing through a portion of the plaintiff's
again passed through apart of the defend-
■state into the plaintiff's, and then again
into the defendant's. In 1S65, the plaintiff took
a lease of the estate from Government for got)
years, to enure a lease from i860, when the
plaintiff obtained possession. The defendant's
by Google
DIGEST OF CASES.
EASEMENT— con Id.
title, also derived from Gove
1869. A formal lease «
:nt, dated from
s granted in 1874 in
Hilar terms to that of the plaintiff. At the
time of the making of this lease, the flow of
water through the channel was enjoyed by the
plaintiff. In a suit by him to restrain the
defendant from interfering with and diverting
the flow of water in this channel, and for
Held by Inna, J.„ that what the plaintiff
sought, tit., a right to the uninterrupted flow of
water in a permanent artificial stream, and the
exclusive right to use the water throughout the
length of the stream, was an easement which,
if it existed at all, must have come into existenoe
by grant under the lease, or by impticatit
law arising out of the severance of
under the lease. A landlord may, by the con-
tract of letting, convey rights (which though not
strictly easements, are in the nature of ease-
ments) to enure for the term of the holding.
Such easements may be, (1) rights of easements
already existing and held by the lessor over
the property of neighbouring proprietors, which
by his lease he passes for the term of the
lease to the lessee, — (a) easements of
— and (3) continous and apparent easements
which have in fact been used by the owner during
the unity of possession for the purpose of that
part of the united tenement which corresponds
with the tenement conveyed.
The right now claimed, a right in a flowing
stream running from the lessor's to and through
the lessee's tenement, which existed
stream prior to the lease, and which was made
expressly for the purpose of the tenement leased
to R., was undoubtedly a continuous ea
requiring no express language to pass
which passed by implication of law. As to the
extent of the plaintiff's right so passing by
implication — if there had existed at the date of
the grant any particular purpose for which the
water had been and was intended to be used,
that user (had and to be had) might be a test
of the user granted. But there was at the date
of the 'lease no special purpose to which the
water bad been applied, and, from the
stances, a larger right could not be inferred
than that R. was entitled by the
reasonable use of the water, i.e., tt
pass it on. The defendant, though he was not
entitled to interrupt the flow of thi
also entitled to use it, as it flowed through his
EASEMENT —contd.
m grounds. Each was entitled to a reasonable
e of the flowing water.
Semblr — that the words in the lease — "together
with alt ways, watercourses, rights, easements,
privileges, advantages and appurtenances" were
words of art inserted in the lease in the
place in which such a clause is usually inserted,
ith the intention of conferring on the lessee
such easements in alUnosolo as might properly
attach to the property leased, but without having
in contemplation any specific easement upon
which the words would operate.
By Ktrnan, J.— The right claimed by the
plaintiff was more extensive than he was enti- •
tied to. The easement in the use of the channel
and flow of water as it existed at the date of (he
grant or lease, 1865, passed to R. and vested in
the plaintiff. The easement was apparent, and
in its nature continuous, and was in factcreated
by R. before the lease was executed, with the
of the Government, then and now the
owners of the land now occupied by the defen-
dant. Under the circumstances the grantors in
the lease of 1S65 must be held to have con-
veyed by implication the easement. And as
R. was also tenant of the lands before and at
the time of the execution of the lease, the lease
would carry all rights then in the enjoyment
of the lessee.
The defendant by the lease of 1874 took sub-
ject to the plaintiffs right in the channel. That
right was to have the water flow in theaccustom-
ed manner through the defendant's premises,
as it did at the time of the execution of the lease
of 1865, and that the defendant should be re-
strained, by injunction, from obstructing and
diverting the stream, so as to prevent it from
flowing through the defendant's premises to the
plaintiff's, in the course and manner in which it
used to flow at the date of the lease of 1865.
Semble — that the easement claimed would pass
under the genera) word ' easement ' in the lease.
Morgan «. Kikby I. L. Rep. 2 Had. 46 ,
1878.
Sue Artificial Watercourse.
Raueshur Perskadv. Koonj Be-
HARRV PATTUCK...L. Rep. 6
L A. 33 ; L. Rep. 4 App.
Ca. 181 ; I. L. Sep. 4 Cal.
633.
Digitized byGOO^Ie
DIGEST OP CASES.
EAVES — Suit to establish Right to cut Project-
's Easement. 2,
MOBANLAL V. AMRATLAL I. L.
Rep. 8 Bom. 174.
EFFECT OF REFERENCE TO COM
MISSIONER 70S TAKING AC-
OOTJNTB.
Sre Accounts, a.
Watson e. Aqa Mehedee SHE-
RAZEE L. B«P. 1,L1
840.
EDUCATION OUT OF JOINT FTJNDa
Stt Hindu Law — Self-Acquired
Property.
Paubm Valloo Cbettv b. Pan-
ush Soorvah Chetty L.
Rep. 4 I. A. 108.
EJECTMENT.
Stt Act ZVHX of 1878, § 7. 1.
Bakhat Ram ». Wazir All I.
L. Bep. 1 All. 448.
Arrears of Bkaoli Rent — Decree vitiated by
comprising Sam for Compensation for
Occupation of Land.
See Bengal Act Tin. of 1869, §§ 21
and 62.
Kishbn Gofaul Mawar v.
Barnes. ..I. L. Bep. 3 Cal.
874.
■ Prom Chaktran Lands.
See Cnakeran Lands.
Hurrogobin Raha b. Rah rut no
Dbv.,.1. L. Bep. 4 Cal. 67.
— By one of two Co-Inamdars.
See Co-Inamdars.
KRISHNARAV u, Govtnd LL.
Bep. 8 Bom. 36, n.
— of Cultivating Ryot.
SW Partition Bait.
SAlllHDA PlLLAI v. SuBBA RED.
diar LIi. Bep. lXad.
888.
— Notice to Quit.
See BJeotment. 1.
-— of Occupancy Ryot— Suit for Illegal.
See Bengal Act TXZL of I860, 1 27.
GoLAuotEEo. Kootosboolah Sir-
car...!. L. Sep. 4 Cal. 627.
— Onus Proband! of Title.
See BJeotment. 2.
EJEOOTfBNT— contd.
Rent-Suit— Right of Prior Purchaser to
question Decree for Ejectment if not
Party to Suit.
See Bent-Suit.
MADUO PrOSHALTD V. PURSHAN
LAU...X. L. Bep. 4 OaL
620.
Suit for— not equivalent to Notice to quit.
See Landlord and Tenant. 1.
Rajendhonatk v. Bassider Ruh-
man L L. Bep. 2 OaL
146.
And see infra, 1.
1. Tenant /rem Year to Year— Reason-
able Notice to quit— Criminal Procedure Code,
Act X. Of 187a, i 530 ] A notice to quit tun-
ning for ten days only is not a sufficiently
reasonable notice on which a landlord can
maintain a suit in ejectment against a tenant
from year to year.
Nor will the suit itself, founded on such a
notice, be sufficient notice to quit.
Proceedings under $ 530 of the Criminal
Procedure Code (Act X. of 1S73) in a Criminal
Court are not a sufficient demand of possession
for the purpose of maintaining an ejectment
suit. Ram Rotton Mundult. Nbtro Kallv
DasSBB. Jackson and Tottenham,}] I. L.
Rep. 4 Cal. 389, 1878.
2. Proof of Title— Lease by Lessor out
of possession.] A plaintiff In ejectment must
give strict proof of his title. A valid lease
cannot be granted by a lessor not in possession
of the lands leased, so as to confer on the lessee
that which the lessor has not himself, a present
right to enter, Tieby u. Kristodhu,nBosk...L.
Bep. 1 L A. 76, 1878.
See Landlord and Tenant, 8.
SoKINATH GhOSB «. JUGOBUN-
OH00 Roy...!. L.Bep.l OaL
297.
ELIGIBILITY FOB OFFICE OF I'ATIL
— Suit for — Declaration of.
£>« Pensions ActXZHXofl871.4.
Gurushidoavda t. Rudrabadav-
dati I. L. Bep. 1 Bom.
681.
See Declaratory Decree. 19, 20.
NlNDAN GAVDA V. MALAH GAVDA.
I. L. Bep. 1 Bom. 638, n,
Babaji t. Nana. ..I. L. Bep. 1
Bom. 686.
DiQitized by Google
( «7 >
DIGEST OF CASES.
ELDERSHIP IN FATILKI FAMILY—
Suit (or Declaration of Right to.
See Declaratory Decree. 30.
Babajiv. Nana. ..I. L. Bep. 1
Bom. 630.
EMANCIPATOR 07 SLAVE, HEBXT-
ABLE RIGHTS 07.
See Aet V. Of 1843.
SayadMirUimudinKhanv. ZtA-
UL-NissABeGUH...Ii-Rep.6
I. A. 137; I. L. Rep. S
TS— Mortgage— Decree— Sale. .]
On 14th July 1876,5. obtained a decree against
D., directing D. to pay the amount advanced
upon a mortage of D.'s land within six months
from the date of the decree, or, in default of
payment, the land to be sold, with liberty to B.
to bid at the sale. Default having been made,
the lands were sold on 3lstjune 1877, and B.
became the purchaser. At the time of the sale
the lands were in the possession of D.'s tenants,
who were under an agreement to give D. a
moiety of the crops. On the nth December,
P., another judgment creditor of D., attached
the crops On those lands which had been cut
and stored by D.'s tenants since the date of the
Held, that by the sale to B. all the right, title,
and interest of D., including his right to the
moiety of the crops in the hands of the tenants,
passed to B., and no residual right remained in
D., on which P.'s attachment could operate, the
crops not having been carried away and appro-
priated by 0. The Land Mortqagk Bank of
India «. Vishnu G. Patankar. West and
Pinhey, JJ I. L.Bep. S Bom. 070, 1070.
ENCROACHMENT.
See Riparian Proprietor*,
Kali Kishen Tagore *. Jodoo
Lai. Muluck Ih Bep. 6
LA. 181.
ENDORSEMENT BY JUDGE ON MORT-
GAGE DEED AT BALE IN EXE-
CUTION 07 MORTGAGED FBO.
PBRTY.
See Registration. 4.
Kanahia Lalv.Ka.li Din... I. L.
Bejp. 3 All. 893.
ENDOWMENT .
Si* Dewuttur.
Pros un no Kuuaki v- Go lab
Chand.... L. Rep. 3 I. A.
145.
KOOHWAK DoORGANATH V. Ram
Chunder... L. Bep. 1 I. A.
58; I. L. Bep. 3 Cal. 341.
See Hindu Law— Partition. 7.
Rah Coohar v. Jogenoar Nath.
L L Rep. 4 Cal. 56.
ENGLISH CALENDAR, COMPTJTA-
TION 07 TIME ACCORDING TO.
See Bengal Act VIII, of 1860, § 29.
Mahomed Elahee Baksho. Brojo
Kishore Sen... I. L. Bep. 4
Cal. 497.
ENGLISH DEPARTMENT OF HIGH
COURT, FOWEB OP JUDGE
ACTING IN— to transfer Case.
See Criminal Procedure Code, Act
X. of 1873, {64.
Reg. v. Zu hirudin. ..L L. Rep. 1
Cal. 219.
ENGLISH DOMICILE- Marriage in India
between persons with — Succession to
Moveable Property.
See Indian Succeaeion Act X of
1865, § 4.
Miller v. Administrator Gene-
ral of Bengal. ..I. L. Bep.
10*1.413.
ENGLISH LAW— Application of— to Parsis.
See Administration. 3.
Dhanjibhai t. Navazbai „L L.
Bep. 3 Bom. 70.
Application of — to Purchase of Lands ia
India, by Husband and Wife, European
British Subjects born and domiciled in
India, and married before Act X. of 1865
came into operation.
Sec Married Woman's Separate
Property. 8,
Beresford «. Huest.,.1. L. Bep.
1 AIL 773.
— Of Landlord and Tenant — Application of—
See Landlord and Tenant. 7.
Tarachand it. Rah Gobind...L L,
Bep. 4 OaL 778.
Diarized by Google
DIGEST OF CASES.
ENGLISH LAW— contd.
As to Onus of Proof of Consideration for s
Deed, Application of — to Hindus.
See Registration. 98.
Raju e. Krishnarav.,.1. L.Bep.
3 Bom. 378, 391.
ENHANCEMENT OP BENT— ^Arrears-
Interest.
Stt Internet. 8.
Khojah Ashanooli.ah v. Kajrs
AFTABoora)RKN...I. L. Rep,
4 Oal. 684.
— — Auction Purchaser — Right of.
Set Bengal Reg. XUV. of 1793,
IB.
MOHESY MOHUN «r. IcHAHOYKE...
L L. Rep. 4 Cal. 613.
Stt Enhancement of Bant. 1.
Bhaoli Rent.
Stt Enhancement of Rent. 4.
1 By Co-Sharer of Land.
Set Enhancement of Bent. 7.
Stt Co-Sharer* of Land. 1.
Doorca Proshad Mvteh v. Jot-
NARAIN HAZRA...I. L. Rep,
4 Cal. 96,
Goni Mahomed v. MoRAN...Ibid,
— of Gkataals.
Stt Ohatwali Tenure.
Leelanund Singh v. Thakoor
Munruhjun I. L.Bep.S
Cal. 361.
- — By Ijaradar.
Stt Enhancement of Bent. 7.
By Inatndar.
Stt Enhancement of Bent. S.
jtalnamdar.
PRATAPRAV V. BATAJI...L L. Rep.
L141.
- By Inamdar— Right of.
Set Miraa. 8.
VlSHNTJBHAT V. BABAtl L L.
Bep- 8 Bom. 846, n.
- Notice of — by one of several Joint Land-
See Enhancement of Bent. 9.
Balaji v. Gofal X. L. Bep. B
Bom. SB.
- Notice of — Unnecessary when express stipu-
lation in Pottah for Increase of Rental as
Lands let, brought under Cultivation.
A* Bong. Act VlH.of 1869, f 14.9.
Nistarni Dasis.BonomauChat-
TBRJI..L L. Bep. 4 OaL 941.
ENHANCEMENT OF RENT-™* id.
Right of Mulgar on— to recover from his
Mulgari Tenants.
S« Mistake.
Babshetti v. Venkataramana...
I. L. Rep. 8 Bom. 164.
Service of Notice of — on one Member of
Joint Family owning Tenure, sufficient
Sa Bengal Act TITL of 1869, § 14. 1.
Nobodebp Chunder Shaha o. So-
narau DA3S..X L. Bep. 4
Cal. 698.
L ■ Right of Auction Purchaser at Sule for
Arrears of Revenue to enhance — Act XI. of 1859,
g yj~Prtntmptiou infavourof Mokurari Tenures
—Btng. Act VIII. of 1869, §| 4 and 17.] The
procedure prescribed in Beng. Act VIII. of 1S69
applies to claims of enhancement by a purchaser
at a revenue sale, and the rights of any such
purchaser are, therefore, subject to all the mo-
difications contained in §§ 4 and 17, which form
a presumption in favour of tenures of all classes
held at an unchanged rent for a period of 20
years before the commencement of a suit, that
such holdings have run on at the same rats
from the time of the Permanent Settlement.
PURHANUND AsRUH «. ROOKINEE GcOiTA.NI.
Jackson and Markby, JJ...I. L. Bep. 4 Cal.
793, 1878.
S. Act X. of 1850, I 15—Defitndtnt
Talook— Fixed Rent— Reg. VI IL of 1793, J 51—
Rig. XUV. of 1793, § 7.] In a suit brought in
the Revenue Court, under Act X. of 1859, to
recover rent at an enhanced rate for a dependent
talook comprised within the plaintiff's zeminda.
ry, after notice of enhancement, grounded on the
defendant's possession of an excess of land on a
deficient ;'«nma, and that the productive power
of the land had increased, it appeared that the
talook had been created before the decennial
settlement, and was held at a fixed rent, which
had not been changed from the time of the
permanent settlement. It had, however, been
n 1811, in a rent suit, that the jumma
of this talook should be assessed at pergunnah
1 in i860, in an enhancement suit, that
the plaintiffs were entitled to enhance; but no
change in the rate of rent was made by or under
either decree: —
Held, that the rent was not liable to enhance-
ment- The grounds stated in the notice, however
applicable to ryots having rights of occupancy,
were nol applicable to a dependent talook creat-
DiQxized by Google
DIGEST OF CASES.
B1TBAKCSKEHT OF RXBT-conld.
ed before the decennial settlement. Talooks of
that description are protected by j 51 of Reg.
VIII. of 1793 from enhancement, except under
the circumstances therein mentioned. See also
Reg.XLIV.of 1793, §7.
To bring the case within j 15 of Act X. of
1859, the defendant's tenure must be otherwise
than under a terminable lease, and he must hold
at a fixed rent, which has not been altered from
the time of the permanent settlement. Section
1 5 does not render liable to enhancement depen-
dent talookdars, who were exempted by § 51 of
Reg. VIII. of 1703, butexempts from enhance-
ment, amongst others, dependent talookdars who,
under the provisions of that section, might other-
wise be liable to enhancement. A rent may be
fixed, though liable under certain conditions to
be enhanced. The term "fixed rent" in that
section does not mean a rent so permanently
fixed that it cannot be enhanced under any cir-
But there baring been no change
a of rent made by or under either
decree, the decrees of 1831 and i860 did not
put the plaintiffs in a better position than other
landlords who, previously to the passing of Act
X. of 1859, had a good right to enhance, but
whose right, if not exercised from the time of
the permanent settlement, was taken away by §
15 of that Act. Hijkrohath Roy v. Gosind
Chundbr Dutt...L. Rep. a L A. 188; IS
Bang. L. B. 130 ; S3 W. XL 383, 1875.
S. Suit for — Conversion of Coinage —
Special Apfeal."] In a suit for enhancement of
rent, it appeared that the rent reserved under a
sunnud of A.D. 1775 was 2,599 Aseemabadee
rupees, and that in lieu thereof from the time of
the permanent settlement the sum of 2,107 Sicca
rupees had been paid till the year 1836, when
the said Sicca rupees were converted into the
statutable equivalent of 2,348 Company's rupees,
which were paid from that time down to the
commencement of the suit: —
Held, that this amounted to an agreement
between the parties from a period antecedent to
the permanent settlement that the 1,599 Azeem.
abadee rupees should be converted into a differ-
ent coinage, *»., the Sicca rupee, at the rate
which had been paid down to 1836, and which
in 1836 had been converted into the statutable
equivalent in Company's rupees, and there
being no right of enhancement under f 15, Act
X. of 1859, that rent could not now be changed,
even if it could be shown that the calculation
HNHANCEMESTT OF XXXT—andd.
under which the 3^99 Axeemabadee rupee* were
converted into 2,107 Sicca rupees was erroneous.
Even if there had been any eridence of error,
the High Court could not, on that ground, in
special appeal, alter the decree of the Lower
Court Man Mahomed Kossuth «. FOURS...
L. Hep. » L A. 1 ; 2» W. B. 816, 1874.
4. Bhaoli Rent— Act X. of 1850, H 3
and 4— Act XVIII. of 1873, 51 5 and 6. j A
in kind (ikaoii) which, though it varies
yearly in amount with the varying amount of
the yearly produce, is fixed as to the propor-
tion it is to bear to such produce, is a fixed rent
within the meaning of § 3 of Act X. of 1859
(corresponding with f 5 of Act XVIII. of 1873).
A tenant, therefore, in a permanently settled
district, holding his land at such a rent, is enti-
tled to claim the presumption of law declared in
1 4 of Act X- of 1859 (corresponding with S 6 of
Act XVIII. of 1873) if be proves that, for a
period of twenty years next before the com-
mcement of the suit to enhance bil rent, he
has paid the same proportion of the produce of
his holding,
Banuman Pars/tad v. Ramjug Singh (H. C.
Rep., N. W. P., 1874, p. 371,) dissented from.
Hanuman Parshad v. Kaulesar Panohy...I.
L. Bep. 1 All. SOI, 1878, F. B.
6. — — ■ Inamdar — Permanent Tenant.'] In
a suit by an Inamdar, holding under a grant
from Scindia made in 1793, against his tenant
for an enhanced rent, it appeared that at the
ime of the grant to the plaintiff's a
ancestors of the defendant were if
the lands as occupants, and that the rayats of
the village possessed and exercised the rights of
mortgaging, transferring, and alienating their
lands, — that the holdings were hereditary, and
that the Inamdars had never challenged those
rights, or interfered with their exercise, — that
the rayats bad paid rent at one common rate,
which had varied at times, but that, whatever
it had been, all the tenants paid at the same
rate; and that for more than thirty years pre-
ceding the suit, the rent had been uniform :—
Held, that it would be difficult to have strong-
er evidence that the defendant had a proprie-
tary right in bis lands, and was not a mere
tenant at will j and this being established, the
ence of a permanent occupancy in the
defendant necessarily involved a limitation of
the Inamdar's right to enhance the assessment.
D.gmzed by G00gle
DIGEST OF CASES.
ENHANCEMENT OP BSST-eonid
It would be a contradiction in terms to say that
■ landlord cannot eject a rayat, but that he
may at his pleasure enhance the assessment ti
such an amount as would render it impossibli
for the rayat to continue to bold the land.
In every part of India, the Government or It;
alienee is debarred, if not by law (as in Bengal)
vet by the custom of the country, from enhanc-
ing the assessment of permanent tenants
beyond a certain limit.
As the alienee of Scindia's rights, the plaintiff
had, in the absence of law or contract to the
contrary, the right to enhance the assessment
to the full extent to which, according to the old
custom of the country, Scindia would have been
entitled to enhance it. There is authority for
holding that under the native governments the
sovereign's full share was one-half the produce !
but without deciding that an Inamdar may in
all cases enhance the assessment up to the
limit of one-half of the produce, the Court, upon
the virtual admission of the defendant that the
full government share, under the native govern-
ment, in respect of his lands, was one-half the
produce (and the plaintiff being willing to
accept such half), held, that the plaintiff was
entitled to enhance the defendant's assessment
to any extent not exceeding one-half of tbe
gross produce. Paksotah Kbshavdass v.
KalyaN Rayji. Stthill and Kemball, JJ I.
L. Rep. 3 Bom. 846, 1878.
See Babaji, e. Narayen...!. L. Rep.
8 Bom. 840.
And Vubnubhat v. Babaji Ibid.
845, a.
Under Witt*. 8.
0. Notice of— Tullubi Bromuttur
Tenure— Beng. Reg. VIII. of 1703, f 51.] A
tullubi bromuttur tenure, which has been held
as such from the time of the decennial settle-
ment, is such an intermediate tenure as entitles
the holder to a notice of enhancement of rent
under f Ji of Beng. Reg. VIII. of 1793. Nil
Mohbt Singh Deo «. Chundsbkant Banner.
jbb. Glover and Hitter, }].,.!. Is. B*p. 2 Ce.1.
185, 1876.
7. — Co-Sharers — Ijaradar — Bengal Act
VIII- of 1869, 1 18.] An Ijaradar is entitled to
enhance the rents of ryots holding under him
where there is no condition or stipulation in his
tease precluding him from 10 doing.
BNEANOXBtBUT 07 BENT— contd.
One of several joint proprietors may, without
making his co-proprietors parties, bring a suit
for enhancement of rent against ryots holding
under bim from whom he has been in the habit
of realizing separate rents. Doorga PkOSAd
MyTEE v. JOYNABAIM HazrA. Frinsep, J I.
L. Hep. 9 OaL 474, 1877.
8. Notice— Beng. Act VIII. of lS6a,f
14 — Res judicata,] A lease from generation
to generation gave the boundaries of the land
leased, estimated the area thereof, and fixed a
certain rent perbiga. It contained a condition
that, if, on measurement the actual quantity of
the land should turn out to be either more or
less than the estimated area, the rent should be
increased or decreased in proportion at the same
rate per biga. In a suit for enhancement of
rent, 00 the ground that the land leased con-
tained more than the estimated number of bigas,
the lease being one which did not specify the
period of the engagement : —
Held, that notice of enhancement was neces- ■
sary under Seng. Act VIII. of 1869, $ 14,
In a previous suit tbe present plaintiff had
sued the defendant for the amount of the rent
iginally fixed in the lease, and the defendant
claimed in that suit to have the rent reduced, io
with the terms of the lease, and a
thereupon made, which showed
that the quantity of land held by the defendant
excess of that named in the lease : that
9 decided in favour of the plaintiff for
the rent claimed : —
Held, that tbe measurement adopted by the
Court in the former suit was not as regards tbe
amount of the excess, binding on the defendant,
and that even if it were, the fact of such mea-
surement and the judgment in the former case
be sufficient notice of enhancement to
the defendant under f 14 of Beng. Act VIII. of
:86ij. Ekbah Mundul v. Holodkub 'Pal.
Garth, C-J-, and Birch, J....L L. Rep. 8 Cal.
971, 1879.
Suit by one of two joint Khots for
Enhanced Rent — Notice-'] One of several ten-
ants in common, joint tenants, or co-parceners,
acting by consent of the others as
manager of the estate, is not at liberty to enhance
eject tenants at his pleasure. In a suit
brought by <fhe of two joint Khots to recover
enhanced rent from a tenant, the notice of en-
given to the tenant having been
D.gmzed by G00gle
DIGEST OF CASES,
ENHANCEMENT OF BBHT-roafct.
signed by the plaintiff alone, and not concurred
in by the other joint Knots t—Held, that the notice
was insufficient to render the tenant liable for the
increased rent, and that the plaintiff was not
entitled to recover. Balaji Baikaji Pingb
v. Go pal Raoku Kuli. Wtatrofp, C.J. and Kent-
iatl, J I. L. Hep- & Bom. 28, 1878.
ENHANCEMENT OF SENTENCE-
Power of Magistrate to commit on Re-
ference for.
Str Criminal Procedure Code, Act
X. of 1873, § 46.
In the natter of Chinnihakioadu...I-
L. Rep. 1 Had. 389.
—'Criminal Procedure Code, Act X. of 1S72, %
3— Magistrate of First Class.} A First Class
Magistrate in disposing of an appeal from the
sentence of a Subordinate Magistrate refrained
from enhancing a sentence of fine by awarding
imprisonment as an additional punishment, or
the ground that the law did not authorize tht
enhancement of a sentence by awarding a punish-
roent different in kind awarded by the Court
whose sentence is appealed from —
Held, that the view of the law taken by the
Magistrate was erroneous. Section 2S0 of Act
X. of 1872 authorizes an Appellate Court,
subject to the proviso in the final sentence, to
enhance any punishment that has been awarded.
Whatever doubt may arise on the word " pun-
ishment," as to the power of entirely altering
the nature of the punishment, there was no doubt
that the Magistrate might have added imprison-
As an Appellate Court the First Class Magia.
trate had power to pass any sentence which the
Subordinate Magistrate might have passed.
Anon I. L. Bep. 1 Had. 84, 1876.
ENTERING A HAVALAT WITH IN-
TENT TO CONVEY FOOD TO A
PRISONER.
Set Prisons Act XXTL of 1870.
Empress a. Lalai..,L L. Rep. 3
All. 301.
ENTICING AWAY A KABBIHD WO-
MAN— not Compoundable.
See Compounding Offencea, 4. 7.
Rio. b.Jetma I. L-Rep. 1
Bom. 158, n.
Rio. v. Muthavan.,.1, L.Rsp. 1
Had. 181.
ENTIRE CARGO— Contract for Sale of.
See Contract. 1.
PoRBIS V. Til LLOCXC HAND llA-
NOCKCHAKD. I. Zi. Rep. 3
BNTBY IN HATOHTTTA— Stamp on.
Set Stamp, 6.
Baoj in on Coon Am. Bromo m O tK
CHOWDHKAHI..X L. Rep. 4
Otxess.
BNTBY OF NAHES OF AZHOT'S TEN-
ANTS IN THE REVENUE SURVEY
REGISTER AS OCCUPANTS- Landlord
and Tenant— Bombay Act I. of l16$.] Themera
entry of the names of the tenants of a ihot in
the Government register as occupants under the
Revenue Survey Act (Bombay) 1. of (865, and
the offer which it involves to receive the assess-
ment from the tenants, does not constitute an
injury of a tangible kind of which the Courts
can take cognizance. In no case can the kksfs
rights as landlord, if they be established, be pre-
judiced by the proceedings of the revenue offi-
cers in carrying out the revenue survey and as-
sessment, there being nothing in the Act (Bom*
bay Act I. of 1865), or the rules framed under it,
which gives to the operation of the survey officer,
or the Collector acting under it, the effect of
changing the rights of subjects of Government
inter se. If in consequence of being entered as
occupants, the tenants pay the assessment direct
to Government which the plaintiff would other.
wise have to pay, the utmost benefit which, as
against him, they can derive from those pay.
ments, is aright to deduct them, should their
leases allow it, from the rent for which they
are answerable. If, being tenants, they should,
on the strength of being made occupants for
land revenue purposes, deny their landlord's
title, he could forthwith sue them, either to
establish his title and recover the full rent due
to him, or to eject them as holding possession
of his lands only by a title which they them-
s repudiate. D. R. Bam v. Tub Survey
Commissioner and Collector or Ratnagiki.
West and Pinhey, JJ...L L. Bep. 8 Bom. 184,
1878.
EttUITABLE MORTGAGE.
Set Principal and Surety. 4.
Poooai v. Bah nor Brngal...I. Xi.
Bep. 8 Cal 174.
D,gltlzed by G00gle
DIGEST OF CASES.
EQUITABLE NOBTGAGE— amid.
Assignment of— Registration.
See Aaaig-nment of Mortgage.
Gam pat •■ Ada»ji...L L. Bep. 8
Bom. 818.
1. — Deposit of Title-deeds- -Notice.~\
Where the plaintiff advanced to the first defen-
dant Rs. 38,000, and had agreed to advance Rs.
27,000 more, the whole Rs. 65,000 to be secured
by a mortgage of the first defendant's immove-
able property, and the first defendant had deposited
With the plaintiff the title-deeds of his immoveable
property, for the purpose of enabling him to get
a mortgage deed prepared, and had agreed to
execute such mortgage deed on the plaintiff
paying him the balance of the Rs. 65,000, and
the title-deeds were afterwards returned to the
first defendant by the plaintiff, to enable him to
clear up certain doubts as to his title to some of
the premises comprised in the deeds, and such
deeds were not subsequently returned to the
plaintiff, nor were others deposited in their steadt
and the balance of the Rs. 65,000 was not paid
by the plaintiff to the first defendant; —
Held, that there was an equitable mortgage
to the plaintiff to secure Rs. 38,000, so far as
concerned the property comprised in the deeds.
The ground of the rule of equity, that a
purchaser of property, though for valuable
consideration and taking the legal estate, yet
with notice of the prior right of a third person,
purchases subject only to the right of which he
had so notice, is, that the taking of a legal estate,
after notice of a prior right, makes a person a
mall fid* purchaser; there being a kind of fraud
on his part in that, knowing that a prior
purchaser ha* the right to the estate, he takes
away his right by getting the legal estate.
But a purchaser for valuable consideration
without notice of the right of a third person,
which renders the act of the vendor, or settlor,
in conveying or charging the property, a fraud
in contemplation of law, is notan accomplice in
that fraud of the vendor or settlor, and Courts
of equity will not interfere with the position of
advantage which his holding of the legal estate
confers upon hint, *t#., the right to the posses-
sion, enjoyment, and disposal of the property ;
and though subsequently he may become aware
of the prior transaction, it is well settled that such
a purchaser hat the right to convey to one who,
at the time of the property being conveyed to
hint, has notice of the rights of the third person,
EQUITASUI BtOBTGAGE-m-.W.
and such latter purchaser, though having notice,
will be protected by reason of his taking from
one who had no notice, for, though himself hav-
ing notice, he does nothing fraudulent in accept-
ing what his vendor had a right to convey ; to
hold otherwise, would be seriously to impede, or
even wholly to prevent, the boni fids purchaser
for value without notice from disposing of his
property at all.
The same ground on which a purchaser with
notice is allowed to protect himself by reason of
having purchased from one who had none, m*.,
the securing to the purchaser without notice the
full benefit of what he has innocently acquired — ■
must be held to protect a subsequent purchaser,
however remote, though having notice. Where,
therefore, the second defendant, having notice
of the plaintiffs equitable mortgage, purchased
from one who, also with such notice, bad pur-
chased from a hand fide purchaser for value
without notice:—
Held, that the second defendant held the pro-
perty free from (he equitable mortgage. Day At.
Jmrazh. jivkaj RaTansi. Green,] I. L.
Bop. 1 Bom. 887, 1876.
See Raj v Balu v. Krjshnarao ..,
L L. Bep. 8 Bom. 373 393
as to this last point.
EQUITY 07 BEDEMPTION.
See Apportionment of Mortgage
Dflbt.
Hirdv Narkain v. Sveo Alla-
Oollah...I. L. Bap. 4 OaL
73.
Purchaser of— before Foreclosure Proceed*
ings, entitled to Notice of Foreclosure —
Beng. Reg. XVII. of 1806, § 8.
Set Mortgage. 13.
NOHKNDERp, DwARKALAL It.
Bep. 8 LA. 18; J. Z,. Bep.
8 CaL 387.
EQUITABLE BELIEF AOAIK8I EX-
TORTIONATE BARGAIN.
See the cases under TJnoonacicraable
Bargain,
BEEOTION OP BUILDINGS BY OOOU-
P ANCY RYOT.
See Bengal Act VUL of 1B69. 1.
Lai. Sahoo «■ Deo Narain Singh,
L L. Sep. 8 OaL 781.
D,gltlzed by G00gle
( *7B )
DIGEST OF CASES.
ERECTION 07 BUILDING: BY TE-
NANT AT WILL, OB FROM
TEAR TO YEAB, ON LANDS
DEMISED.
Set Landlord and Tenant. 9.
Prosunno Coomarbb v. Shukh
Rutton ...L L. Eep. 8 Oal.
ERRONEOUS CONSTRUCTION OF DB
CBEE BT THE OOUBT PRO-
NOUNCING IT.
See Account. 1-
Hirji Jina «. Narran Mulji...L
L. Bap. 1 Bom. 1.
BBBOB IN ACCOUNT.
Set Bond to aecare Balance of Ac-
count.
Narayan v. Motilal..X L. Bop.
1 Bom. 45.
BBBOB NOT AFFECTING THE ME.
BITS— Absence of Notice of Action.
Set Act XV. Of 1878, 5§ SB and 43.
MUNICIPAL COMMUTE! OF MoRAD-
ABAD V. CUATRI SlHOH...L L.
Bep. 1 ail see.
— Non-Joinder of Co-Sharer* in Suit for
Enhanced Rent.
Set Co- aharera of Land. 4.
Boydonath ». Grish Chunder...
i ' L L. Bep. 8 Cal. 20.
Non-Joinder of Local Government in Snit
against Municipal Committee where
Magistrate of District impleaded as re-
presenting Local Government
Set Act XV. of 1878, §5 SS and 48.
Municipal Com mittee of Morad-
abadv. Chatbi Singh L
L. Bep. 1 AIL 388.
■ -Improper Admission in Evidence of Un-
stamped Document—Appeal- -Ad VIII, of 1859,
i 350.] Where the Court of Erst instance,
treating an unstamped promissory note, the
after-stamping of which was inadmissible, as a
bond, received such instrument in evidence, on
payment of the stamp duty chargeable on it as
a bond, and of the penalty :—
Held, that the reception of the document by
the Court was an irregularity, which did not
affect the merits of the case, and was no ground
for ravening the decree when appealed from.
Afial.un-Nissa ». Tej Ban. Turner, C.J.
(Offg.), and SpanUe, J..X L.Rop. 1 AIL 736,
1878.
See AppeeJ-CieU 80.
KhoobLai.hi. Jungle Singh..
LL.Bap.80aL 787.
ERROR IN CALCULATION OF TIME
FOB AFPBALINa NO GROUND
FOBApatTtTTIMflTlMB.BABjBlP
APPEAL.
Set Time- barred AppeaL
■Zajbui.nissaBibib. Kulsuk Bibi.
L L. Bep. 1 AIL 960.
IN LAW— Review on Grounds of.
See Review. 8.
Ellen v Bassber..,L L. Bep. 1
All. 184.
EBBOB OF PROCEDURE NOT PRE.
JUDICING T HE ACCUSED.
See Summary Trial.
Empress *. Karan Sikok...L L.
Bep. 1 AIL 680.
BBBOB IN BTATEMENT OF ACCOUNT.
See Contract. 8.
Sett Gokul Das*. Murli...L>
Bap. 8 L A, 78 ; L L. Bap.
8 0*1608.
ESCAPE OF WATER,
Set Maintenance of Bonds.
Ram Lall ■. Lill Dharv...L L,
Bap. 8 OaL 776.
ESCHEAT— Hindu Lam— Mokurrerree Istim-
raree Pbttah], hi., a Hindu Zemindar, granted
an ordinary mokurrerret istimraret tenure to his
illegitimate daughter, who died during his life-
time, without heirs. After her death, M. during
his life, and afterwards the widows, who by
Hindu law were his bein, continued to receive
of the
lands, the receipts for such rents being taken
in the name of the original grantee. In a suit
by one of the widows of M., to recover her
share of the estate : —
Held, that though the recognition of the par-
;s in possession by the receipt of rent from
them, would make it impossible to treat them as
ould constitute some kind of
tenancy requiring to be determined by n
yet that circumstance only would not be enough]
Diarized by Google
DIGEST OF CASES.
ESCHEAT-- ctmtd.
to defeat the plaintiff's claim in this suit. But
that the plaintiff was not entitled to recover, for,
the grantee of the tenure having died without
heirs, the Crown, by the general prerogative, was
entitled to it subject to the payment of the rent
reserved. The mohurrerret, though carved out
of a zemindary, was an absolute alienable
estate, and could not revert to the zemindar ;
and there is no authority upon which the power
of taking by escheat can be attributed to the
zemindar. The principles of English feudal
law are inapplicable to a Hindu zemindar. Sup-
posing, therefore, that the parties in possession
had nothing but their possession to depend up-
on, tbe superior title, under which alone they
could be ousted, was not in the zemindar or bis
representatives, but in the Crown. Ranee
SONWBT KONWAR V. MlRZA HlMMUT Baha-
doob... h. Bep. 3 I. A. 92, 1876 ; I. 1. Bop
1 OaL 891 ; 86 W. B. 989.
ESTATE OF A DECEASED HTNDTJ-
Judgment against a person taking Posses-
sion of the — Legal Representative.
See Person taking Possession of
the Estate of a Deceased
Hindu.
Prosunno Ckunder v. Krjsto
Chytunno ...I, L. Eep. 4
0*1,349,
ESTATE 07 INHERITANOB— Evidence
of.
See Polliem. 1.
Tbs Collector or Trichinopolv
v. LBKKAHANt...L. Eep. 1 L
ESTOPPEL.
See case 3 collected under Bet Judicata.
See Bond to secure Balance of
Account.
NaRKAYAN «. MOTILAL I. L.
Eep. 1 Bom. 40,
See Mortgage. 99.
Moran *. Mitto Brass L L.
Bep. 9 OaL 68,
By Acquiescence.
Aw AisquiesMiice. 1.
Uda Briiah j. Iman-vd-Din...X.
L. Bep- 1 AIL 89.
— Agreement not to Execute a Decree.
See Estoppel 6.
ESTOPPEL— amid.
Attestation of Mortgage Deed by prior
Mortgagee.
See Constructive Fraud.
Salakat Ali e. Budh Singh. ..X.
L. Bep. 1 AIL 808.
—— Concealment of Prior Charge.
Set XatoppeL 1.
Mesne Profit* and Interest subsequent to
decree not provided for therein — Security
to pay — pending Appeal.
See Mesne Profits. 1.
Sadasiva Pillai v. Ramalinda
Pillai...i>. Bep. a i. A.
819.
Of Mortgagee not giving Notice of his
Mortgage at Sale in Execution of a
'Money Decree (unconnected with his
Mortgage) obtained by him.
See Mortgage. 6.
TuKABAif if. Ranch an 0RA...L la.
Bep. 1 Bon. 814.
■ ShIo by Mortgagee's Son of Share pur-
chased by him at Execution Sale of
Absent Member of Hindu Family,
without Disclosing his Father's Mort-
gage.
Set Mortgage. 4.
Joshi e. Joshi..,L L. Bep. 9.
Bom. 080.
Title by.
Sm BalaUn Execution of Decree. 19,
Alukhonbb Dabbb v. Baner
madhub chuckerbutty...x.
L. Bep. 4 OaL 677.
1. Concealment of Prior Charge.] A
person who has represented to an intending
purchaser of land that he has not a security
over that land, and induced him to buy under
that belief, cannot as against such purchaser
subsequently attempt to put his security in
The Judicial Committee will not disturb the
concurrent Ending of two Lower Courts on a
question of fact. Munnoo LALl c. LallA
Choonbb Lall...L. Bep. ILL 144; 91 W.
B. 91, 187a
9. Jurisdiction — Refund of Amount
levied in Irregular Execution.] Where a Court,
on the application of a decree- bolder, made an
order for execution, which order was subsequent-
ly set aside on the ground that such Court had
no jurisdiction to make the order -.—Held, that
Diaxized by Google
DIGEST OF CASES.
ESTOPPEL— eantd.
the decree -holder, having invoked the iurisdic-
tion of the Court, was estopped from Calling in
question an order subsequently passed by it
directing him to refund a sun levied under
the order for execution. Govind Vaman ».
Sakharah Rakchiwdra. Westrofifi, C.J., and
West,] L L. Rep. 3 Bom. 49, 1878.
S. C under Execution of Deere*. B.
8, Variance between Pleading and
Proof.] A. claimed certain property from B., the
daughter of C, on the ground that, on the death
of C-, it had descended to D., as the heir of C,
and produced a Kobaia containing a recital that,
on the death of C, who had died childless, it
had descended to D.\ —
Held, that A. was not estopped from proving
that C. had left a son E., who survived him, and
that D. was entitled to the property as E.'s heir,
and that D.'s heir could give the title to such
property. Gour Moneb Dbbea o. Krishna
CHUNDRR Sannval. Jackson and Tottenham,
JJ I. L. Rep. 4 Oal. 897, 1878.
4 . Mortgagor and Mortgagee — Decree
against Mortgagor— 'Right of Way.~\ A. mor
gaged, under a Bengali deed of mortgage,-
which contained no conveyance of the lands, but
simply a declaration that the lands were liable to
be sold in default, —certain lands to B., and sub-
sequently, in the same year, instituted a suit
against C, to have it declared that C. had no right
of way over the lands mortgaged to B. B-
not a party to this suit nor had he any notic
it, nor was there anything to show that C.
aware of the mortgage to B. when the suit
instituted. No fraud or collusion in bringing or
conducting this suit was shown. Tfc
dismissed, and C. obtained a decree establishing
his right of way, B. subsequently caused the
lands to be sold under his mortgage, and became
the purchaser at the auction sale. In a suit by
B. against C. to have it declared that C. had
right of way over the lands : —
Held, that a mortgagor in possession doesi
so far represent the entire estate as to affect the
rights of a mortgagee. A mortgagee not
possession is not barred, by a decision affirm!
a right of way in a suit between a third party and
the mortgagor, from suing to declare that there
is no such right of way, he having no knowledge
of that suit. B., therefore, was not estopped by
the previous decision against A. from again raising
the question of the existence of the right of way
ESTOPPEL— «w«.
the lands. Doema Sahao v. Joonarain Loll
(ii W. Rep. 363) followed. Bohomalre N*o
». KOTLASH ClIUNDER D«r. Markbv and Prin.
up, JJ 1 L. Rep. 4 OtJ. 69fl, 187B.
0. Bent Suit—Eviiience Act I. ofig-j-j,
SlIS.] In 1853 /. C. purchased the darfatni
estate, the subject-matter of the suit. In 1858
be told it to hit wife and too. The rent of this
darpatni falling into arrears, the plaintiff, in
1865, sued /. C. for the rent, but was defeated
on /. C. contending and proving that he was no
longer the plaintiffs tenant, having parted with
his interest to bis {/. C.'s) wife and son. The
plaintiff then sued /. C't wife and son for the
and obtained a decree, under which the*
darfatni was sold, and the plaintiff himself
became the purchaser. On the strength of the
title so obtained, the plaintiff sued an ijaradar
of part of the estate for rent. The defendant
contended that /. C. was the real owner of the
property, and that one P. had purchased /. C.'s
right, title, and interest therein, and had ob-
tained possession through the Court, and that
he, the defendant, had paid rent to P. P. was
thereupon made a party defendant to the suit,
and contended that /. C. had mortgaged the
property to him, and that such proceedings had
been taken on the mortgage that he was entitled
in /. C.'s right to the rent of the property as
Held that, inasmuch as P., the intervening
defendant, claimed under /. C, and could take
no better title than /. C, had himself ; and as
/, C. had directly induced the plaintiff to believe
that he had sold his property absolutely to his
wife and son, led him to bring a suit against
them for rent, and under the decree obtained in
that suit to purchase their interest in the pro-
perty, it did not lie in the mouth of /. C., or any
one claiming under him by a subsequent title, to
set up a claim to the rent in suit as against the
plaintiff.
Where a man by his words or conduct wilfully
induces another to believe in a certain state of
facts, and to act in that belief, so as to alter his
own previous position, the former is estopped as
against the latter from averring a different state
of facts as existing at the same time. Aunath
Nath Deb v. Bishtu Chundbr Roy. Garth,
C.J., and Tottenham,] I. L. Rep. 4 Cal.
788, 1878.
Digitized byGOO^Ie
DIGEST OF CASES.
ESTOFFEL-co.iW.
6. Agrtement not to era
Breach of Faith—Deed of Conditional Sale to
defeat Rights of Third Person— Disavowal of
Trust — Foreclosure — Ex-Parte Decree—Limita-
tion.'] The plaintiff sued in 1875 to recover
certain immoveable property by cancelment and
invalidation of a deed of conditional sale dated
the 24th of December 1853, in favour of the
defendant In i860 the defendant caused notice
of foreclosure to be issued on the said deed, and
in t S6 1 obtained an ei-partedeaee for possession.
Subsequently, in the same year, a creditor of
the plaintiff obtained a decree against the plain,
tiff, in execution of which he attached the
property in question, but on the intervention of
the defendant that attachment was removed.
The creditor then sued the plaintiff and defend-
ant to contest the order releasing the property,
alleging that the deed of conditional sale was
fraudulent and collusive- That suit was dismiss-
ed. The plaintiff did not appear to defend
it, but the defendant did. The defendant first
applied for execution of his ex-parte decree of
1 86 1, in the year 1864, and he obtained possession
in execution in 1871, notwithstanding the
apposition of the plaintiff. The plaintiff then
instituted the present suit, alleging that the deed
of conditional sate was executed without consi
deration, and with a view to defeat a probable
claim by his son, and that the foreclosure pro-
ceedings were collusive, and in prosecution of
the same object; and that it was not intendet
that the property should pass to the defendant
who was a mere trustee for the plaintiff, who
had, notwithstanding the deed of conditional sale
and proceedings above referred to, remained
possession of the property, until the defendant
had fraudulently obtained possession in execution
of the decree, and contrary to the terms of an
agreement dated the 16th of January 1856,
whereby the defendant had agreed that even if
the deed of conditional sale should be followed
by foreclosure proceedings and a decree,
theless the defendant would not attempt to
disturb the plaintiffs possession:—
Held, 1st, that the suit was not barred by
limitation. No cause of action accrued to the
plaintiff until the defendant disavowed the trust
and proceeded to obtain possession of the pro.
perty against the plaintiff's will. The mere
proceeding to keep alive the decree of 1861
would not be a disavowal of the trust. Th
defendant first seriously sought to execute hi
ESTOPPEL— contd.
decree in 1872, and limitation ought not to be
iputed from an earlier date than that appli-
cation ; if the suit were to be regarded as a suit
merely for possession, but for a declaration
that the deed of conditional sale was not intended
o pass the property, and that the decree of 1861
hould not operate to injure the plaintiff's right,
n which view of the suit, six years was the time
prescribed; or if, by rejecting as surplusage the
claim for invalidation of the conditional sale
deed, the suit be, as it should, a claim for pos-
in, the period of limitation was twelve years,
to be computed from the date on which posses-
ion was obtained in execution of the decree of
:S6l ; in either view, therefore, the suit was not
indly. That in a country where iimfarti
ansactions are so common, and where they
ive'been so commonly recognized by the Court,
would establish a dangerous precedent to rule
that under all circumstances, a party is bound by
his deed, and concluded from showing the truth.
If the rule of estoppel is to be used to promote
justice, the degree of strictness with which it is
to be enforced must be proportioned to the de-
gree of care and intelligence which the natives of
the country, in practice, bring to bear on their
actions. Whatis ordinarily known in India
deed, is an attested agreement, prepared
without any competent legal advice, and execut-
ed and delivered, by parties who are unaware of
any distinction between deeds and agreements.
Under these circumstances, justice, equity, and
good conscience require no more than that a
party to such an instrument should be preclud-
ed from contradicting it, to the prejudice of
another person, when that other, or the person
through whom the other claims, has been indue,
ed to alter his position on the faith of the in-
strument ; but where the question arises between
es, or the representatives in interest of
parties, who, at the time of the execution of
the instrument, were aware of its intention and
object, and who have not been induced to alter
their position by its execution, justice will be
more surely obtained by allowing any party,
whether he be plaintiff or defendant, to show
the truth. The plaintiff, therefore, was not
estopped by the deed of conditional sale, from
showing the nature of the transaction.
jrdly. That the dismissal of the creditor's
suit, on the defendant's plea, did not estop the
plaintiff from questioning the truth of the plea
b, Google
DIGEST OF CASES.
ESTOPPEL- -contd.
\thly. That the decree of 1S61 was no bar to
the suit, the question now being whether or not
the plaintiff suffered judgment to go by default
in that suit, on the understanding that the decree
was not to be executed without his consent, or if
executed, that the property would be restored t
him; a question which could not have been
determined in the former suit. But even if the
plaintiff was so far bound by the decree, that he
could not contend that the defendant
entitled to possession, yet the plaintiff was enti-
tled to insist on the agreement, and,
strength of it, to recover possession.
The doctrine, that in in pari delicto, potior est
conditio possidentis, must not be accepted without
qualification. Bowes v. Foster (27 L. J., N. S.,'
362) followed. Pakaii Singh 0. Lalji Mai..
Turner and Oldfield, JJ I. L. Bep. 1 AH.
408, 1877
EVICTION 07 PUBCHASEB AT SALE
IN EXECUTION OP DECREE T7N-
DEB ACT VHI. OF 1669— Refund of
Purchase Money.
Sec Civil Procedure- Code, Act X.
Of 1877, § 818.
M11L0....L L. Bep. 3 All 399.
EVIDENCE— Of Accomplices.
See Evidence 3. 8. 4. 9. 9a. 10. 11.
11a. 13ft.
Of Account Books kept by Clerk of Firm
— Admissions against Firm, though not
regularly kept.
See Account Books.
Reg. v. Hanmanta...L Ik Bep.
1 Bom. 610.
— Of Accused re-arrested pending Appeal from
his Acquittal.
Sec Evidence. 4.
— Of Acts of Ownership.
See Limitation. 7.
Mokiha Chuhdbr vHurro Lall.
I. L. Bep. 3 Cal. 768.
See Land Tenures in Kftnara.
— Admissibility in — of Ex-parte Decree.
See Judgment ex-parte. 3.
And see Bes Judicata. 13.
Birch under e. Hurrish Chun.
der...L L. Bep. 3CaL 388.
EVIDENCE- -contd.
i Admissibility in — of Former Judgmentsand
t Decrees between same Parties or their
Rep resentati ves.
See Evidence. 1.
—Admissibility in— of Time-barred Decree.
See Judgment ex-parte. 3.
And see Bes Judicata. IS.
Birchundbr v. Hurrish Chun-
DER...I. L. Bep. 3 Cal. 888.
— Of Admissions.
See Hindu La w— Partition. 7.
Ram Coomar o. Jogendro Nath..
;L L. Bep. 4. GaL 86.
—Of Admissions by a Defendant to his At.
torney in presence of Plaintiff — adrois.
sible.
Sm Privileged Communications. 3.
Mehon Hajee Mahomed e. Moi-
vi Abdul Karim L L.
Bep. 3 Bom. 91.
— Of Assignment or Mortgage, inadmissible
where unregistered (and therefore inad-
missible) Deed of Assignment exists.
See Assignment of Mortgage.
Ganpat v. Adarji.-.I. L. Bep.
8 Bom. 813.
— Of Confession.
See Evidence. 8. to 16. 19.
— Of Confession to Deputy Commissioner
of Police, being also a Magistrate.
See Evidence. IS.
— Confession Induced by Person In Autho-
rity— Admissibility of — against Co- Accu-
sed.
See Evidence. IS.
— Confession Informally recorded — Evidence
to supply Defect.
See Criminal Procedure Code, Act
X. of 1373, |122.3.
Empress 9. Ramaniiyar...L L.
Bep. 3 Mad. 6.
See Evidence. 13. 14.
Of Consideration — Suit on Unstamped
Promissory Note.
See Evidence. 4.
Of Contemporaneous Oral Agreement
Contradicting Written Contract.
See Evidence. 19. 30.
See Mortgage. S3.
MORAN O. MlTTU BIBEE...L L.
Bep. 3 Cal 68.
Diaxized by Google
DIGEST OF CASES.
EVIDENCE— contd.
Of Contemporaneous Oral Agreement to
Rescind Registered Contract.
Sa Incomplete Contract.
Umedhulv. Dada...I. L. Bep.
8 Bom. 647.
— Of Custom.
See the cases undi
And see KhoJM.
Rahimatbai V. HlRBAl I. Ii,
Bep. 3 Bom. 34.
Death — Presumption as to.
See Evidence. SI.
Depositions taken by British Consul at
Zanzibar— Act I. of 1872, § 33.
See Offence committed in Foreign
Territory.
Empress v. Dossaji Goolam Hu.
sein I. L. Bep. 3 Bom.
334.
— — Discovery of — from Confession by Accused.
See Evidence. 16.
— Documents more than 30 years old— Pre-
See Evidence. 17.
Improper Admission of— Power of High
Court on Case reserved or certified,
consider Merits.
See Evidence. 18.
See Power of High Court on Case
reserved or certified, to con.
eider the Merits of the Case.
REG. *. PlTAMBER JlNA I. Tj,
Bep. 2 Bom. 61.
•— Improper Admission of Unstamped Docu-
See Error not affecting Merita
Afzuj-un-Nissa b. Tej Ban.. J. L.
Bep. 1 All. 736.
— Insufficiently Stamped Hindi— Admissibi-
lity of — on Payment of Penalty.
See Stamp. 8.
MoTHOORA MoHUN V. PEARY Mo.
hun...I. L. Bep. 4 Cat 969.
— ■ Interrogatories.
See Practice— Civil. 6.
Gosio Bbhary r. Joktjr Lall.„1
L. Bep. 4 Cal. 836. 1
ET1DEHCE— contd.
Of Judge.
See Evidence. 22.
Empress e. Donnelly.. . I. L. Bep.
2 Cal. 406.
See Disqualifying Interest of
Reg. v. Bholahath Sen I. L.
Bep. 2 Cal. 28.
Letter written "without prejudice "—Inad-
missible in.
a« Privileged Communication. 1.
Howard e. Wilson.. .L I*. Bep.
4 Cal. 231.
— — Libel — Evidence to show what persons read-
ing— understood.
See Libel
Shepherd «. Trustees op Port
of Bombay 1 L. Bep. 1.
Bom. 477, 480.
Of Long Possession, Strong Element in
Proof of Mirasdari Title.
See Hirae. 1.
Babaji*. Narayan...I. L. Bep.
8 Bom. 840.
■ Magistrate's Notes of —Affidavits to Supple-
ment on Application to transfer Case to
High Court.
See High Court Criminal Proce-
dure, Act X. of 1875, § 147. 3.
Reg. «. Hadjbe Jeebun Bux...I.
L. Bep. 1 CaL 364.
Misappreciation of— Material Error— Act
X. of 1872, I 297— Revision.
See Criminal Procedure Code, Act
X of 1872, ( 297.1.8.4.8.
H ardeo.. .1. L. Bep. 1 All. 189.
Aurokiam...L L. Bep, S Mad.
88.
Empress v. Donnelly J_ L.
Bep. 9 CaL 406.
Empress «. Murli.,.1. L. Bep. 8
AU.886.
Of Opinions of Members of Caste, to prove
Custom.
&e Khojaa.
Rahimatbai v. Hirbai L L.
Bep. 3 Bom. 84.
Parol— to show no Consideration for— or
different Consideration from that stated
in Written Contract.
Sec Evidence. 20.
Diarized by Google
DIGEST OF CASES.
mid.
— Parol— of Payment of Bond
Sen Bond to secure Balance of Ac-
Narayanu. M0T11.A1....I. L. Hep.
1 Bom. 46.
— Parol Evidence — of Payment where Re"
ceipt inadmissible because unregistered.
See Registration. S3.
Dalip Singh v. Durga Prasad...
I. LEep. 1A11. 412.
— Of Partition.
See Compromise. 2.
Pitav Singh e. Ujaqar Singh...
L L. Rep. 1 AIL 601.
— Of Partition.
See Hindu Law— Partition. 5. 0.
Prag Das v. Hari Kishen...I. L.
Rep. 1 AIL 60S, 604.
AmBIKA DtJTT V. SlIKHMANt KlMR.
Ibid. 487.
— Of Payment — Parol — where Receipt inad-
roisible because unregistered.
See Registration. 22.
Dalip Singh «. Dukga Prasad...
I. L Rep. 1 AIL 442.
— Of Payment of Bond— Parol — Contrary to
Stipulation in Bond.
See Bond to secure Balance of Ac-
count.
Naravahv. Motilal...!. L. B«p.
1 Bom. 46.
— Public Documents.
See Jamabandi.
— Presumption of Death.
Ste Evidence. 21.
Parmkshar Rai ». BlSHRSHAR
Sing...I. L. Rep. TAIL 63.
— Privileged Communications.
See the cases under Privileged Com-
munication*-
— Proof— Burden of.
See the cases under Onus Frobandi.
— Proof — Proof of Custom,
See the case* under Custom.
— Proof— Proof of Mirasdar's Title.
See Miraa. 1.
BABAjiii. Naravan .,1. L.Rep. 3
Bom. 340.
— Proof — Proof of Ownership.
See Onus Frobandi. 3.
EUtan Kuar s. Jrkvan Singh...
I. Iu Rep. 1 All. 194.
EVIDENCE— amid.
Of Proprietary Right in Land.
See Enhancement of Rant. 6.
Parsotam v- Kalvan.,.1. L. Rep.
8 Bom. 348.
See Land Tenures in Kanara,
Recording — after Case for defence closed —
Power of Magistrate.
See Practice —Criminal. 1.
Empress •> Baxdbo Sahai... I. L-
Rep. 9 All. 263.
Km gesttt — Statements of Accused.
Stt Evidence. 7.
Secondary — of Confession defectively re-
st* Evidence. IS. 14.
See Criminal Procedure Code, Act
X. of 1872, f 13S. 2.
Empress v. Ramanjiva I. L.
Rep. 3 Mad. 6.
Secondary Evidence of Unregistered Do-
cument of which Registration compulsory.
— Special Appeal — Power of High Court
on — to consider the.
See Contract. 14.
Nanak Rah ». Mshin Lal...I. I*
Rep. 1 All. 483.
— Substance of — Record of— in Appealable
See Summary TriaL
Empress e. Karan Singh. .XL.
Rep. 1 All. 680.
— Of Surrounding Circumstances and subse-
quent Acts of Parties, in construing
Deeds.
See Oonatruction of Banad. 1.
Ravji v. Dadaii I. L. Rep. 1
Bom. 628-627.
— Taken on Oath illegally administered —
Validity of Award founded on.
See Oaths Act X of 1878, §§ B, 10,
13.
Wali-ul-la e. Gholam Ali L
L. Rep. 1 All. 636.
— Of Title.
See Limitation. 7.
Mohima Chunder Dev Sircar p.
Hurro Lall Sircar. ..L L.
Rep. 8 Cal. 768.
Diarized by Google
DIGEST OF CASES.
EVIDENCE- contd.
- Of Unregistered Deed to prove Breach of
Covenant.
See Registration, SB.
Rajut. Krishkarav.-I. L.Rop.
3 Bom. 873.
- Unregistered Deed of Partition.
See Evidence. 18.
- Unregistered Endorsement on Deed of
Sale of House — Returning Deed through
Purchaser's Inability to pay.
See Incomplete Contract.
Umbdmal «. Davu...L L. Rop,
9 Bom. 647.
- Unregistered Receipt to prove Release of
Mortgage of Land.
See Registration.- 18. 14. 23.
Mahadaji v. Vvankaji...I. L.
Rep. 1 Bom. 197.
Basawa v. Kalkafa I. Ii.
Rep. 2 Bom. 489.
Dalip Singh v. Durga Prasad...
I. L. Rep. 1 All. 442.
- Unregistered Mortgage Deed — to prove
loan in Action (or Money.
See Registration. 24.
Mattongeney v. Ramnarrain...
I. L, Bep. 4 Cal. 83.
- Unstamped Document — Improper — Ad-
mission of.
See Error not affecting the Merits.
Afzal-un-Nissa v. Tej Ban. ..I.
L. Rep. 1 AIL 725.
- Of User to explain the Meaning of a grant.
See Prosunno Coomar Sircar v. Rah
Coomar Parooev.-.I. L. Sep. 4
Cal. 83, 68.
' Under Right of Fishery in Public
Navigable Rivera.
See Construction of Banad. 1.
Ravji «. Dadaji I. L. Rep. 1
Bom. 823, 937.
1 . Farmer Decrees and judgment:
Evidence Act (/. of 187a), 'f 13, 40, 41, 42, 43.]
Judgments and decrees recognizing rights be-
tween parties to a suil, or between persons whom
they represent, if not conclusive under the Evi
KVIDEWCE— contd.
device Act (I. 'of 187a), as they were before that
aim into force, are yet admissible in evi-
ls under § 13 of that Act. for the purpose of
showing that the right has been not only asserted
by the claimants, but recognized by the tribunals
of the country, and this even if the parties to the
former suit be not the same as those in the subse-
quent suit. Where the parties are the same, or
representatives of those in the former suit, such
judgments and decrees are evidence so nearly
conclusive as, when produced by the party in
whose favour they are, to shift the burden of proof
from him to his opponent, who, in order to escape
from the effect of such judgments and decrees,
must show that there has been some subsequent
alteration in the rights of the parties.
Semole-Vndet g 13 of the Civil Procedure Code,
(Act X. of 1877) the law is the same now as it
was under Act VIII. of 1859 prior to the passing
of the Evidence Act (I. of 1S72). Naranji
Bhikabhai o. Dipa Umbo. Westropp, C.J., and
MeMU, J I. L. Bop. 3 Bom. 8, 1878.
8. — Of an Accused illegally pardoned.']
When an accomplice has received a certificate
of pardon, under § 347 of the Criminal Proce-
dure Code, from a Magistrate, on condition of
making a full disclosure of all the circumstances
within his knowledge, and on the faith of that
promise of pardon gives evidence fairly and
fully, he ought not to be prosecuted for the
offence in connection with which he received
the certificate of pardon, though it should turn
out that the grant of the pardon by the Magis-
trate was illegal, under j 347.
Two persons, who, according to their own
statements, were accomplices in the thefts for
which the accused persons were being tried,
were arrested under a warranto! the Magistrate
charging them with theft. They received from
the Magistrate a pardon purporting to be
granted under § 347 of the Criminal Procedure
Code, Act X. of 187a, and were examined as
witnesses at the trial of the accused, both
before the Magistrate, and afterwards before
the Session Judge, to whom the case was
committed. None of the offences with which
the accused were charged before the Session
Court, were tried exclusively by the Session
Court, and the granting the pardon was there-
fore illegal. The Session Judge, when he had
taken the evidence of the two persons, informed
them that their pardon was invalid, and asked
D,gltlzed by G00gle
DIGEST OP CASES.
ETCDENOK— contd.
them if they adhered to the statements they had
made, to which they replied in the affirmative
Held; that their evidence must be rejected as ab-
solutely inadmissible, as the effect of {{ 344,345
347 of the Criminal Procedure Code is to render
it illegal fare Magistrate to convert an accused
person into a witness, except when a pardon has
been lawfully granted under J 347, and the
witnesses, being accused persons, not legally
pardoned, could not be examined as witnesses
till they had been acquitted, convicted, or dis-
charged. Rbg. s. HanmaNTA. Metvill and Kern-
ball,}] I. L. Bep.lBom. 610, 1877.
Followed in Empress v. Askoar
Au...I. Ir. Rep. 2 All. 200.
Infra, 8.
S. C. under Criminal Procedure
Code, Act X of 1872, f 462.
8. 1 Accused illegally pardoned—Crimi-
nal Procedure Cede, Act X. of 1872, j ) 344, 347
—Evidence Act I. of 1872, t 24— Confession.'] The
appellants, together with one /. and four other
persons, were sent up by the police to the
Magistrate on charges of offences none of which
were triable exclusively by the Court of Session.
■ The Magistrate in the course of the inquiry ten-
dered a pardon to /., and examined him as a
witness for the prosecution, and eventually com-
mitted four of the accused to the Sessions, on
charges none of which were exclusively triable
by the Court of Session, and notwithstanding an
objection to the admission of /.'s evidence, he
was examined as a witness in the Sessions
Court :—
Held, that as none of the accused before the
Magistrate were charged with any offence ex-
clusively triable by a Court of Session, and as
there was no ground for inferring that I. was
supposed to have been, directly or indirectly,
concerned in, or privy to, any such offence, the
offer of a pardon to him, and his examination as
a witness, by the Magistrate and Judge, were
illegal, and not authorized by § 347 of the
Criminal Procedure Code (Act X. of 1872),
After the offer to him of a pardon, he was, under
the provisions of f 347, detained in custody
pending the termination of the trial, and his
position, as one under accusation of an offence,
was in no way changed when he appeared be-
fore the Judge, and could not be altered until he
had been discharged, acquitted, or convicted,
and with reference 10 j 345, being an accused
EVIDENCE— con td.
person, so long as he was in that position he
could not be put on his oath or examined as a
witness in the case in which he was accused.
Held also, that /.'s statement was irrelevant
and inadmissible, with reference to § 344 of the
Criminal Procedure Code, and , 24 of the
Evidence Act I. of 1S72. Empress i>. Ashcar
Ali. Pearson and Oldfield, JJ...L L. Kop. 2
All. 260, 1879.
4, Arrest pending Appeal — Examina-
tion of Respondent as a Witness against another
person concerned in the same Offence.'] K. and
B. were accused of being concerned in the same
offence, K. was first apprehended, and committed
for trial by the Magistrate to the Sessions Court,
where he was acquitted. The Local Government
appealed against his acquittal, and the Magis-
trate arrested him with a view to his detention
in custody until the appeal should be determined.
While K. was so detained in custody, the Magis-
trate inquired into the charge against B., who
had in the meantime been arrested, and made
A", a witness for the prosecution, and committed
B. for trial. K.'s evidence was taken on B.'*
trial :—
Held, by Stuart, C.J., that the Magistrate was
justified in re-arresting K., and that his evidence
was admissible against B.
By Spanfie, J.— It might be that the arrest of
K. on the same charge after his acquittal by the
Sessions Judge was unlawful, as it appeared that
the appeal of the Crown bad not been admitted
when the arrest was made.
But if the Magistrate looked on K. as still in
the position of an accused person, he should not
have made him a witness against B. Assuming,
however, that the re-apprehension of K. was un.
lawful, and that when he made his statement he
was a free man, and that the evidence was ad-
missible, it was not evidence on which much
reliance could be placed. Empress v. Karim
Bakhsh.... I. L. Hep. 2 AIL 386, 1879.
5, Of Value— Statements in Will.] The
statement in a will of the value of the testator's
property is no evidence thereof.
The acceptance by one brother of a certain
sum of money in satisfaction of his own share in
1868, though it might be evidence of the value
of the ancestral estate in that year, affords no
D.gmzed by G00gle
( «7 )
DIGEST OF CASES.
EVIDENCE —centd.
indication of the value of that property in 187G.
LAKSHUMAN NA1K «. RaMCHANDRA NAIK.
MelvUl and Kemball, JJ--X lb Bop. 1 Bom.
001, 1870.
6. Of Consideration — Suit an
ed Document— Promissory Nate.] The
of an unstamped promissory note does not pre-
vent the lender of the money from recovering on
the original consideration if the pleadings are
properly framed for that purpose. In India, the
form of pleading not being material, the plain-
tiff, in a suit on an unstamped promissory
note, is not debarred from giving independent
evidence of consideration. Golap Chand Mar.
waree v. Thakitrani Mohokoom Kooaree.
yacfaon and Kennedy,}} X. 1* Bap. 3 Cal.
314 ; 3 Cal. Rep. 419, 1878.
7. Act I. of 187s, § 8.— Res gestae-
Statements by Accused.] " There is hardly any
act that a prisoner could do to which a statement
relevant to a crime charged against him could
not, by a more or less forced connection, be
attached- The Evidence Act does not intend to
suggest or sanction such a process, but to make
those statements admissible, and those only,
which are the essential complement of acts done
or refused to be done, so that the act itself, 01
the omission to act, acquires a special signifi-
cance as a ground for inference with respect tc
issues in the case under trial." Empress v
Rama Birrapa. Per West, J I. L. Bap. 3
Bom. 19, 1678.
6. — Act I. of 1872, § 25 — Confession.]
Section 25 of the Indian Evidence Act I. of 1873
does not preclude the counsel for one accused
person, on behalf of his client, asking questii
to prove a confession made to a police officer
by another accused person, who is on tri:
jointly with him, but it would, under such ci
cumstances, be the duty of the Judge to instru.
the jury that such confession is not to be recei
ed or treated as evidence against a person
making it, but simply as evidence to be consi-
dered on behalf of the other. Impx, v. Pitam.
BUR JlNA. Wtstrapp, C.J., Sargent and Atkinson,
JJ I. L. Bop. 9 Bom. 81, 1877.
8. Act 1. of 1872, § 30.— Confession, of
one Prisoner implicating himself and another,
Effect of] Under § 30 of the Evidence Act (I.
of 1872), the confession of a prisoner which
affects himself and some other prisoner charged
with the same offence, becomes, when duly
EVIDENCE— centd.
proved, admissible in evidence, and as evidence
against both prisoners, and must be so dealt
with by the Court, butsuch other prisoner, can not,
when it is uncorroborated as against him, be
legally convicted on it.
Per Garth, C. J— The weight which should be
attached to such evidence, and the question,
whether taken by itself, it is sufficient in point of
law to justify a conviction, is a question for the
Judge who tries the case. If the confession is
corroborated by other evidence, it does not mat-
ter whether in proving the case at the trial the
fession precedes the other evidence, or the
other evidence precedes the confession.
Per Jackson, J. (McDonnell, J., Concurring.) —
Such evidence (i.e. the confession) is not suffi-
cient to support the conviction of the other
accused, even when corroborated by circum-
stantial evidence, unless the circumstances con-
stituting corroboration would, if believed to
1st, themselves support a conviction.
Per Curiam.— The word " Court " in $ 30 oi
the Evidence Act, means not only the Judge, in
trial by a Judge with a jury, but includes both
Judge and jury. Empress cAshootosh Chuk-
kerbuttv 1. L. Bap. 4 Cal. 483 ; 8 Cal.
Sep. S70, 1878, F. B.
9(1. Act I. of 1872, § 30— Co-Accused.]
The test § 30 of the Evidence Act I. of 187*
intended should be applied to a statement of
one prisoner proposed to be used in^evidence
as against another is to see whether it is suffi-
cient by itself to justify the conviction of the
person making it of the offence for which he
is being jointly tried with the other person or
persons against whom it is tendered.
Where the confession made by a person being
tried jointly with others did not implicate him
to the same extent that it implicated them, and
was insufficient by itself to justify his convic-
Neld, that such confession could not be taken
into consideration, under { 30 of the Evidence
Act I. of 1S72, against such other persons.
Queen v. Belat Aly (10 Beng. L. Rep. 453; 19
W. Rep. 76) followed. Empress «. Gauraj.
Straight,] I. L. Hep. 2 All. 444, 1879.
10. Act I.of 1872, § 30.— Confession of
Co-Accused.] The conviction of aperson jointly
tried with other persons for the same offence,
D,gltlzed by G00gle
( m )
DIGEST OF CASES.
EVIDENCE— contd.
cannot proceed merely on an uncorroborated
statement in the confession of one of his co-
accused. Empress v. Bhawani. Turner, C. J.
(Offg.) I. L. Rep. 1 All. 664, 1878.
Empress d. Rah Chund...I. L. Sep. 1 AU.
676.
11. ■ Act I. of 1872, i 30.— Confession of
Co. Accused.'] A conviction based solely on the
confession of a co-prisoner is bad in law. Reg.
V. AhBIOAHA HulAQU. ftolloway and /n»irj,JJ...
I. L. Sep. 1 Mad. 168, 1676.
11a. Accomplice — Corroboration."] Con-
fessions of co-prisoners, implicating one of the
prisoners jointly tried with them for the same
offence, cannot be accepted as sufficient corro-
boration of the testimony of approvers against
such other prisoner. A conviction based on the
testimony of approvers, uncorroborated, as to
the identity of the accused person, cannot be
sustained, and the confessions of co-prisoners
implicating him cannot be accepted as sufficient
corroboration of such testimony. Rf.ii. v
Riidhij Nanu. Westropp, C.J., and N. Ham-
das, J I. I.. Bap. 1 Bom. 476, 1876.
IS. •Criminal Procedure Code, (j 133,
346.]] A confession recorded under f 122 of the
Criminal Procedure Code (Act X. of 1872) must
bear both the memorandum of the Magistrate
certifying his belief that the confessions were
voluntarily made, and his certificate that the ex-
amination was taken in his presence and in his
hearing, and contains accurately the whole of
the statement made by the accused person.
No oral evidence can be received to prove the
fact of the confession, if the confession itself be
inadmissible in evidence, by reason of the above
requisites not having been complied with. Reg.
v.Bai Raton (10 Bom. H.C. Rep. 1 66) followed.
Reg. v. Shiva. MelviU and West, JJ ...I. L. Rep.
1 Bom. 219, 1876.
13a, Act I. of 1872, j 133— Accomplice
— Corroboration.] Section 133 of the Evidence
Act (1. of 1872) in unmistakeable terms lays it
down that a conviction is not illegal merely be-
cause it proceeds on the uncorroborated testi-
mony of an accomplice, and to hold that corro-
boration is necessary is to refuse to give effect
to this provision.
The rule in § 1 14 of the Evidence Act I. of
1872 coincides with the rule observed in England,
EVIDENCE— contd,
that though the tainted evidence of an accomplice
should be carefully scanned and received with
caution, and may be treated as unworthy oF
credit, yet if the jury, or the Court, credits the
evidence, a conviction proceeding on it is not
illegal. Reg. e. Ramasami PadavaChi. Morgan,
C.J., and Kindersley, J X. L. Bep. 1 Had.
884, 1878.
18- Confession Made to Police Officer
also a Magistrate — Admissibility in Evidence
of— Evidence Act I. of 1872, ({ 25, 26, and
lb"]— Deputy Commissioner of Police at Cal-
cutta—Letters Patent, 1S65, ( 26.] The
prisoner, on his arrest, made a statement in the
nature of a confession, in the house of his father,
in the presence of two police inspectors and
another prisoner. The statement was reduced
into writing by one of the inspectors of police,
and was afterwards signed and acknowledged
in the presence of the Deputy Commissioner
of Police, at his private residence over the
Police Office, and the Deputy Commissioner
signed his name under that of the prisoner as a
Magistrate and Justice of the Peace. At the
trial of the prisoner at the Criminal Session of
the High Court, this statement was tendered in
evidence against him, and admitted by the Judge,
who overruled an objection on behalf of the
prisoner that, under § 25 of the Evidence Act,
it was inadmissible. On a certificate granted
by the Advocate General under CI. 26 of the
Letters Patent (1865) :—
Held, that the confession was inadmissible in
evidence, and ought to have been rejected.
Per Garth, C.J.— Section 26 of the Evidence
Act (I. of 1872) is not intended to qualify the
25th section, but means that no confession made
by a prisoner in custody, to any person other
than a police officer, shall be admissible, unless
made in the presence of a Magistrate. Section
25 is an enactment to which the Court should
give the fullest effect, and should be construed
in its widest and most popular signification. In
construing that section, therefore, the term
" police officer " should be read, not in any
strict technical sense, but according to its more
comprehensive and popular meaning, in accord-
ance with which the Deputy Commissioner of
Police at Calcutta must be held to be a police
officer within the meaning of that section, though
he would not be a member of the Police force
lionized by Google
( KH )
DIGEST OF CASES.
(
)
ntDBHCB— tontd.
within the meaning of Bengal Act IV. of 1866,
and the Police Act of i86l.
Per Curiam— Section 167 of the Evidence
Act applies to criminal as well as civil cases.
Per Garth, C.J. (Pontifex, J., doubting.)— The
Court mentioned in that section which is to
decide on the sufficiency of the evidence to
support the conviction, In a case coming before
the Court under CU 26 of the Letters Patent, is
the Court of Review, and not the Court below.
That Court must decide upon the case, upon
being informed from the Judge's notes, and
if necessary by the Judge himself, of the
evidence adduced at the trial. (A certificate
by a majority of the jury that if the confession
had not been in evidence, they would have
acquitted the prisoner, was tendered, but rejected
by the Court, which eventually upheld the con.
Per Curiam.— Apart from i 167 of the Evidence
Act (I. of 1872), the Court has power, under
0. 26 of the Letters Patent (1865), upon a case
reserved or certified, to review the whole case,
and to quash or confirm the conviction. Reg. u.
HurriboLe Chundbr Ghose. Garth, C.J., and
Pontifex,} Ll.Bep.10aL 207, 1876.
S. C. under Certificate of Jury.
See Rbg.». PitambbrJina-.L LBep.
EVIDENCE- -contd.
Evidence— Evidence Ad I. of 1873, §§ 24 to 2?
and 30.] A., B., and C. being jointly tried for
rder, a confession made b; A. was tendered
in evidence. But the confession having been
made under undue influence by a person in
authority, the Session Judge rejected it ("as a
ifession merely") as against the other accused
B. and G, but took it into consideration against
A. himself " in relation to facts which have been
brought to light in consequence of it, and fur-
ther in relation to what accused said at the time
he pointed out where the murder was commit-
ted, and did other acts which prove that his
nfession in relation to them is true."
Held, that if the confession was admissible at
1, it was admissible for the purpose of the
Court's taking it into consideration against B
id C, as well as affording the strongest evi-
dence against A. himself ; and that it was an
the part of the Session Judge to sup-
: it could be first entirely rejected as
unduly obtained, and then brought in again to
nvict A. If circumstances rendered it wholly
partly admissible, it ought not to have been
aside at all, but weighed Cor all purposes
i. ex.
Under Power of High Court on Cane
Reserved or Certified to con-
sider the Merita of the Case.
14. Confession Defectively recorded— Act
X. 0/ l8j2, 5§ 122, 346— Preliminary Inquiry-
Secondary Evidence.'] When the confession of a
prisoner taken under , 12* of the Criminal Pro-
cedure Code (Act X. of 1872), and not in the
course of a preliminary inquiry, was not taken in
the manner provided by ( 346, ij"., where it did
not bear the proper certificate, and was not signed
or attested by the prisoner's mark
Hold, that it was inadmissible in evidence, and
that the evidence of the recording officer, that such
confession was actually made, was inadmissible
to supply the defect. Reg. v. Bai Ratan {
Bom. H. C Rep. 166} followed. Empress v.
MannoO Tamoolbb. Morris and White, JJ...
X L.Rep. 4 Oal. 696; 4 CaL Rep. 187,
1878.
10. Inducement — Admissibility of
Confession against Co-Accused —Discovery of
■ith c
Held, also, that as no discovery of facts
through information derived from A. had occur-
red after the confession was made, it ought,
having been made under undue influence, to
have been wholly rejected even as against .4.
himself. A confession of murder made to a
police constable, is not at all confirmed by the
prisoner's saying " That is the place where I
killed the deceased," and when, starting from
the pointing to a ditch or a tree, along narrative
of transactions, some of them altogether remote
from any connection with the spot indicated, is
allowed to be deposed to as confessed by a
prisoner,
of the Evidence Act i
fulfilled but defeated. Empress v. Rama
Birafa. West and Pinhey, JJ ... I- ti. Rep. 8
Bom. 12, 1878,
S. C. under 7, supra.
16. Criminal Procedure Code, Act X.
of 187a, ( 346— Attestation when unnecessary.}
The attestation required by j 346 of the Crimi-
nal Procedure Code {Act X- of 1872) is unneces-
sary when the confession is made in Court to
the Magistrate trying the case at the time of
trial. In such a case it is unnecessary for the
Magistrate to record any " confession," since he
is competent on the admission of the accused to
Digitized byGOO^Ie
DIGEST OF CASES.
EVIDENCE- -cantd.
sentence him without any further record (f 334,
Act X- of 1872). In the matter of ChuHMAM
Shah. Markhy and Prinsep, JJ...I. L. B*p. 8
CaL 766 ; 2 Cat Bop. 817, 1878.
17. Document more than Thirty yean
old— Presumption as to— Evidence Act I. of 18781
S 90— Proof of Execution— Proof of Authority to
tign on behalf of others.] The plaintiff sued the
defendants to enhance the tent of certain land.
The defendants successfully contended in both
the lower Courts that they were protected from
enhancement by reason of a mohurrari pottah,
executed forty-three years before the suit. At
the time when the pottah bore date, there were
three maliks of the land. The pottah purported
to bear the seal of one only of the maliks, and to
be signed on behalf of all the maliks by one
S.L.:—
Held, that although the pottah might be a
genuine document, it would not bind the maliks
who did not affix their seals, or those who claimed
under them, until it was shown that S. L. had
special authority from the two maliks to sign
their names to the pottah, or a general authority
to sign on their behalf all documents of the same
description as the pottah. Until such proof was
given, the pottah was not admissible in evidence.
The fact that it was more than 30 years old only
gave rise to the presumption mentioned in f 90
of the Evidence Act I. of 1872, namely, that the
signature at the foot of the pottah, which pur-
ported to be in S. L.'s handwriting, was in his
handwriting, and that the execution, which on
the face of the pottah appeared to be the execu-
tion of 5. £., was an execution of the pottah by
him. To make the pottah evidence against the
two maliks who did not execute it, and those
claiming under them, the defendants must go
further and show that S. L. had the authority of
those two maliks to sign their names. Ubilack
RaI e. DallIALRaI. White and Milter, ]].,.!.
I* Bep. 8 Cal. 6(57, 1878.
18, Act I. of 1872, § 91— Partition Deed,
— Registration—Secondary Evidence.'] A deed Of
partition was executed among three brothers,
A., B. and C, on the 19th March 1867, but
was not registered. It recited that the bulk of
the family property had been divided some years
previously to its date, but that there remained
undivided three houses, which three houses, the
deed proceeded to state, were on that day
{!,»., 19th March 1867) divided among the three
brothers/]., D. and C
EVIDENCE— contd.
In a suit brought by C.'s widow to recover the
house Which fell to C.'s share :—
Held, that though the deed would not exclude
secondary evidence of the partition of the bulk
of the family property previously divided, yet it
did affect to dispose of the three bouses, by way
of partition, made on the da; of its execution,
and therefore, under § 91 of the Evidence Act
(1. of 1873), rendered secondary evidence of its
contents inadmissible.
A Judge is not at liberty to make a case for a
plaintiff totally different from that which the
plaintiff himself alleges. Kachubhai Gulab.
CKUND v. KbiShnabhai. Westroff, C.J., and
Mehiil, J I, L-Bep. 2 Bom. 680, 1878.
10,. -Act I. 0/1872,5 ga.—Contetiifora-
nevus Oral Agreement.'] The plaintiff sued to
recover possession of a house, which be alleged
that he had purchased under a deed of sale,
from the defendants, to whom he had subse-
quently let the house. The defendants admit-
ted the execution of the deed of sale, but set up
a contemporaneous oral agreement with the
plaintiff, that the deed of sale was to be merely
a security for the payment of a certain sum of
money by the defendants to the plaintiff, and
alleged that a considerable portion of the
money so secured had been repaid by them to
the plaintiff.
Held, that the alleged contemporaneous oral
agreement being wholly inconsistent with the
terms of the deed of sale, oral evidence to prove
it was excluded by § 92 of the Evidence Act.
Banapa v. Sumdardas Jagjivandas. Westropp,
C.].,*.n&KembaU, ]...!. L.Bep. 1 Bom. 333,
1876.
SO. Act I. of 1872, § gX.—Oral Evi-
dence— Consideration.'] Section 92 of the Evi-
dence Act (I. of 1872) prevents the admission of
oral evidence for the purpose of contradicting or
varying the terms of a written contract, but does
not prevent a party to a contract from showing
that there was no consideration, or that the
consideration wasdifferent from that described
in the contract
Where, therefore, a deed of sale described the
Consideration to be Rs- 100 in ready cash re-
ceived, but the evidence showed that the consi-
deration was an old bond for Rs. 63. 1 2-0 and
Rs. 36-4-0 in cash ; — Held, that there was no
between the statement in the deed,
Digitized by GoOgle
DIGEST OF CASES;
( SCG )
EVIDENCE— tontd.
and the evidence as to consideration, having
regard to the fact that it is customary in India,
when a bond is given wholly or partially in con-
sideration of an existing debt, to describe the
consideration as being " ready money received.'1
HUKUHCHAND IT. HlRALAL. MAvlll and West,
JJ I. L. Bep. 3 Bom 159, 1876.
31. Act I. of 187*, § 108— Presumption
of Death — Suit by Reversioner next after a Misting
Person to set aside Alienation by Widow— Hindu
Lam.'] The plaintiffs sued, hs being reversioners
of S. next after J. who was missing, to cancel a
mortgage made by S.'a widow, in so far as the
mortgage affected their reversioners' rights, and
to have those rights declared. J. had not been
heard of for eight or nine years : —
Held, that for the purposes of this suit the
death of J. might be presumed under the
provisions of f 108 of the Evidence Act, the
plaintiffs not claiming to succeed to y.'s pro-
perty by inheritance, but only seeking, as rever-
sioners next after J., to protect their rever-
Semble — In a suit to succeed by inheritance to
the property of a missing person, the Hindu and
Mahomedan law as to the presumption of
death would, having regard to Act VI. of 1871,
§ 14, apply. Under the Hindu law the property
of a missing person will not vest in the next
heir until the expiry of at least twelve years
from the date of that person's forsaking his
family, and being lost sight of, or in the case of
a Mahomedan until ninety years had passed
from the date of the missing person's birth, sup-
posing that he has not been heard of in the in-
terval. Parheshar Rai «. Bishishar Singh.
L 1. Rep. 1 All. 08, 1875, P. B.
89. Judge— Magistrate.'] A Magistrate
or Judge cannot himself be a witness in a case in
which he is the sole judge of law and fact.
PerMarkhy,]. — Where in such a case he has
given his evidence and convicted the accused,
his having so acted make* the conviction
bad.
Per Priniep, J.— The conviction is not thereby
rendered absolutely void where the evidence
given by such judge or Magistrate is immate-
rial, and where if it be put out of consideration,
there is evidence which, if believed, would be
sufficient for the conviction of the accused
EVIDENCE— am Id.
Enpkkssv. Donnili.v...I. L. Sep. 2 Cal 405,
1877.
S. C. under Revival of Prosecution. 8.
And Criminal Procedure Code,
Act X of 1873, J 397.4.
33. Act l. of 1872, §36— Magistrate—
Village Munsiff.] The provisions of S 16 of the
Evidence Act (1. of 1873) do not restrict the mean-
ing of the word "Magistrate" to a Magistrate
within the meaning of the Criminal Procedure
Code (Act X. of 1S72). A village Munsiff is, in
the Madras Presidency, a Magistrate within the
meaning of § 26 of the Evidence Act (I. of 1872).
Empress v. Ramanjiyya. Innes and Forbes,
JJ I. L. Rep. 3 Mad. 5, 1878.
EVIDENCE ACT L OP 1873— % 1— Arbi-
trators—-Rule as to Privileged Communi-
cations binding on.
See Privileged Communications, 1.
Howard v. Wilson... I. L. Rep. 4
Cal. SSL
- § 8 — Res gesta— Statements of Accused.
See Evidence. 7.
Empress s. Rama. I. L. Bap. 8
Bom. 19.
- I 13 — Former Judgments and Decrees.
See Evidence. 1,
Nasahji Bhikabhais. Dipa Um ed.
L I* Rep. 8 Bom. 8.
- 55 24 to 27.
Set Evidence. 5.
Empress ». Ashoai,..!. L. Bop.
3 All. 360.
Confession— Undue Influence— Person in
Authority.
See Evidence. 15.
Emfkbssv. Rama Birapa...I. L.
Bep. 8 Bom. 12.
— — 55 35 an^ 36 — Confession made to Deputy
Commissioner of Police.
See Evidence. 13.
Reg. ». Hukbibolr.,.1. L. Bep.
1 Cal 807.
- § 25 — Confession of Co-accused Exculpat-
ing Co-accused.
See Evidence. 8,
lap*, v. PlTAMBBB LL Bep.
8 Bom. OL
D.gmzed by G00gle
DIGEST OF CASES.
( 606 )
EVIDENCE ACT I. OF 1873— tontd.
9 3° — Joint Trial — Confession of one Ac
cused — Undue Influenc
all.
—Exclusion as I
See Evidence. IS.
Empress & Rama Birapa...L T..
Sep. 8 Bom. IS.
— — § 30 — Confession of Co-Accused no Corro-
boration of Accomplice as against another
See Evidence. 8. 9a. 10. 11. 11a.
*— § 33— Depositions taken by British Consul
at Zanzibar.
See Offence committed in Foreign
Territory.
Empress v. Dojsaji Gulam Hu-
sbin I. It. Hep. S Bom.
834.
— — { 40— Former Judgments and Decrees.
See Evidence.|L
NakanjiBhckabhah.DipaUued.
J, I* Bop. S Bom. 8,
— § 41 — Former Judgments and Decrees,
See Evidence, 1.
NARANJI BHIKABHil «, DlPA UKBD.
Z. L. Bop. 8 Bom. 8.
_ — § 42 — Fount r Judgments and Decrees.
See Evidence. 1.
Naranji Bhikabhai v. DtPA Umrd.
I. L. Bop. S Bom. 8.
1- § 43 — Former Judgments and Decrees.
Sec Evidence. 1.
NaranjiBhikabhai«.Dipa Umrd.
X. L, Bep- 3 Bom. 8,
— § 74 — Public Document — Jamabandi,
See Jamabandi.
Taru Patiir v. Abinasb Chun.
OSR...I. L. Bep. 4 Oal. 79.
— % 00— Presumption as to Documents more
than thirty years old— Execution pre-
sumed, but not Authority to execute for
another.
See Evidence. 17.
Ubilack Rai «. Dallial Rai..,I,
1. Bep. 3 Oal. 007.
§91.
Set Sodj Baslnama.
Vrhkatrsa v. Shnooda I. Ii.
Rep. a Mad. 117.
EVIDENCE ACT I. OF 1872 conid.
— — S 91— Unregistered Deed of Assignment of
Mortgage, requiring Registration — Other
Evidence inadmissible to prove Assign.
See Assignment of Mortgage.
Gahpat v Adarji...L L. Bep. 8
Bom. 819.
S 9'— Unregistered Partition Deed—Secon-
dary Evidence.
See Evidence. 18.
Kachubhai v. Krishhabhai ...I.
L. Bep. 2 Bom. 680.
S 9i~IHostration (*) — Unregistered Re-
ceipt for Money paid in Part Liquidation
of Mortgage of Land — Parol Evidence of
Payment admissible.
See Registration. 99.
Dalip Singh v. Durga Prasad...
I. L. Bep. 1 Ail. 443.
— S 93— Accommodation Acceptor.
See Principal and Surety, 4.
Pogosb *. Bank of Bengal... I.
Ii. Bep. S Col 174.
■ ■■■ £ 9*— -Oral Agreement contradicting Writ-
ten Contract.
See Evidence. 19.
BaNAFA V- SlINDARDAS I. L.
Bep. 1 Bom. 133.
See Mortgage. 99.
MORAN V, Mi'fTU BlBBB I. L.
Bep. S Oal. 68.
— — Oral Evidence of Consideration.
See Evidence. 20.
HUKAMCHAND*. HlRALAL... I. Ih
Bep. 3 Bom. 109.
* oj, CI. 4.
See Incomplete Contract,
Umbdmals. Davu...I. It Bep.
& Bom. 647.
— §§ ioi, 103, 106.
See Onna Proband!. 9.
Hbera Lali. >. Babikunnissa...
I. L. Bop. 3 Oal. 001.
fio*
See Defamation.
Stbho Pkobad Pandha I. I*
Rep. 4 CaL 184.
Digitized byGOO^Ie
( «W )
DIGEST OF CASES.
( no )
SVIDSNCfe ACT L OF UM-mdd-
— (io8-
See EviilBiiee. 21.
Parmishar o. Bishrshar. ..I. 1.
Bep. 1 AH 58.
— S "o-
See Onus Proband!. 6.
Ratan Kuar «. Jiwam SlHGH...
L L. Bop. 1 Ail. 194.
S»3-
8f OsMdon of Territory.
Damodhar 9. GANRSH...10
H. 0. Bap. 87; L. Bep. 3
I. A. 103; I. L. Bep. 1
Bom. 367
- — i 114 — Accomplice — Corroboration.
See Evidence. 13a.
Rhg, v. Ramasami Padavachi...
I. L. Bep. 1 Mad. 884.
i US-
Set Estoppel, 0.
Aunath Nath n. BisUTU Chun-
oEK...I.t.Bep.4 0aI.
— S 136 — Admissions by a Defendant to bis
Attorney in presence of Plaintiff.
See Privileged Gommunication.'S.
Memon Hajee Haroon Maho-
■ mrd s. Molvi Abdul Kariu.
L L. Bep. 8 Bom. 91.
— f 133
See Evidence. 13a.
Reg. v. Ram as am J... X. L. Sep.
1 Mad. 384.
^— I 167 — Applies lo Criminal Cases — Power
of High Court on Case reserved
fied, to review whole Case — Letters
Patent, CI. 26.
See Evidence. 18.
Reg. r. Hi;rr(bolb...L L. Rep.
1 CaL 307.
See Power of the High Court on
Case reserved or certified, to
consider the Merits.
Reg. v. Pitamber...L L. Bep. S
Bom. 61.
EXCHANGE OF PATTAB AND KTJ-
CHALEA8.
See Madras Act VIII. of 1866, { 4.
SSSHADDI AVYANQAR V. SANDA-
kam.,.1. 1. Rep. 1 Mad. 140.
EXCLUSION OF DATE OF ORDER OB
DECREE APPEALED AGAINST.
See Limitation. 68.
Gujar v. Barvr-.I. L. Bep. 8
Bom. 678.
EXCLUSION OF DATE OF PBIOB AP-
PLICATION FOB EXECUTION
OF DECREE IN COMPUTING
PERIOD OF LIMITATION FOB
EXECUTION.
See Limitation. 88.
Dhonsssur*. Roy Goodbr I.
L. Bep. 3 Cal. 886.
EXCLUSION OF TE
TO OBTAIN COPY OF JUDG-
MENT, IN COMPUTING PERIOD
OF LIMITATION FOB PETITION
FOB LEAVE TO APPEAL TO
PRIVY COUNCIL.
See Limitation. 80.
J AWAHIR LAL u. NARAIN DaS.-.I.
L. Bep. 1 All. 044.
EXCLUSION OF TIME OCCUPIED IN
SEEKING EXECUTION OF DE-
CREE IN COURT WITHOUT JU~
BIBDICTION.
See Limitation. 40.
Jiwah Sinoh ». Sarham Singh..,
I. L. Bep. 1 All. 97.
EXCLUSION OF TIME OCCUPIED IN
UNSUCCESSFUL ENHANCE-
MENT SUFI, IN BUTT FOR AB-
BEABSOF BENT AT ADMITTED
BATE. HOT ALLOWED.
See Limitation. 9.
Brojbmdros. Rakhal L L.
Rep. 8 Cal. 791.
EXCLUSION OF TIME OCCUPIED BY
UNSUCCESSFUL SUIT FOB
EHAS POSSESSION IN SUIT
FOR ABBEABS OF BENT, NOT
ALLOWED.
See Limitation. 10.
HuRRoPROsHAoo.Goi'AotDAsa.
I. X.. Bep. 3 CaL 817.
Digitized by G00gle
< 811 )
DIGEST OF CASES.
( 612 )
EXCLUSION OF TIKE OCCUPIED IN
PROSECUTING SUITS
COURTS WITHOUT JURISDIC-
TION— In Suits under Act XVI II. of
'873.
Set Limitation. 89.
TlMAL KUARI fr. ABLAKH R*J...
I L. Rep. 1 All. 251
EXCLUSIVE BIGHT TO FISH IN A
PUBLIC RIVER, INFRINGE
MENT OF.
See Criminal Trespaea. 3.
Empress?- Charn Naviah L
L, Bep. 3 CaL 304.
EXECUTION CREDITOR— Liability of— in
Damages for Wrongful Seizure — Loss of
Property while under Attachment.
Bet Liability of Execution Creditor
in Damage* for Wrongful
Go pal Mahad Path.*, Gokaloas
Khwji.-.L L. Rep. 3 Bom.
74.
■— ■ Liability of— to refund Purchase -money to
Purchaser at Sate by Sheriff under Writ
of Fieri Facia* on Eviction of Purchaser
on Sale being declared Void.
Bat SherifF. Sale. l. 8. 8.
Dokab Ally Khan v. Khajah
Moheeoodjieen.-.I. L. Rep.
1 OaL 55 ; I. L. Bep. 8 CaL
80S ; L. Bep. 5 I. A. 116.
Framji B. Dastuk v. Hormasji
P. Framji I. L. Bep. 2
Bom. SOS.
EXECUTION OF DECREE— Acquiescence
in Improper.
Sea Execution Of Decree. 1.
. of Another Court transferred for Execution.
See Execution of Decree. 13.
w— - of Another Court transferred for Execu.
tion — Application for — must be made
Court passing Decree.
See Execution of Decree. 17.
— Appeal by Auction Purchaser.
Bet Appeal— Civil. 33. 87.
GoPAi.ni Dular-.L L. Bap. 3
AIL 8
Kahthi Ram «. Hankhy Lal.
L. Bep. 9 AIL 390.
EXECUTION OF DECREE— eentd.
Appeal from Order in.
See Appeal- Civil. 98. S3.
Muru Dhar 1. Parsotam Dass.
II. Bep. 3 AIL 91.
Uda Began v. Imaii-ud-Din...I.
L. Bep. 3 All 74.
See Civil Procedure Code, Act X
of 1877, f 344.
DaLPATBHAI »- AVARSANO...I. L,
Bep. 2 Bom. 553.
— - Appeal from Order in— passed before Act
X. of 1877 came into operation.
See Appeal— Civil. 9. 36.
Rukjit Singh ». Mkherban.Kohr.
I. L. Bep. 8 Cal. 062.
Tharvr Prasad v. Ahsan Ali...
L L. Bep. 1 All. 068.
— Appeal from Order in— on Specially Re-
gistered Bond under Act XX. of 1866.
See Appeal— Civil. 11. 13.
Bhvruc Ch under b. Golap Cor>
MARI...I. L.Bep. 8 Cal. 617,
Ramanand v. Bank of Bengal ...
I. L. Bep. 1 AIL 377.
WVLAYVT.UN-NISSA v. Najib-un-
Nissa L L. Bep. 1 AIL
588.
— Appeal in— Proceedings commenced before
Act X. of 1877— Sale after— Sale set
See Appeal— Civil. 5,
Chinto Joshi v. Kkishkaji Na-
bain I. L> Bep. 8 Bom.
814.
— Application for — >by Agent of Firm who
succeeds Agent in whose name Decree in
Firm's favour passed.
See Execution of Decree. 13.
— Application for — made by Mookhtear of
Judgment Creditors.
See Execution of Decree. 3.
— Application for Partial Elocution — Joint
St* Limitation. 75.
Rah Adtak «. Ajudhia Singh...
X. L. Bep. 1 AIL 381.
Digitized byGoO^le
DIGEST OF CA9ES.
EXECUTION 07 DECREE- -co ntd.
Application for — Passed before Act IX. of
1871 came into operation, made after.
Set limitation. 60. 74. 70. 76. 77.
80. 81. 83. 64. Bfi. 88. 80,
— Appl icati on f or— by H eir of Decree Holder-
Certificate to collect Debts unnecessary.
See dvil Procedure Code, Act VHI.
of 1889, f 308.
Karam Ali v. Halina 1L
Step. 1 All. 680.
Application for— by Alleged Purchaser of
Decree— Refusal of — Appeal.
See Act XXDX Of 1801/5 11. 1.
SoBHA BlBEEe. MlRZA SaKHAMUI
Ali..iI. L. Rep. 3 Cal. 371
— Application for — by Purchaser of Decree—
.See Appeal— Civil. 8.
Runjit Singh v. Mbhbrban Koek,
I. L. Bep. 8 OaL 60S.
—Application for — is not a " Suit."
See Limitation. 40.
Jiwan Singh v. SarnaM Singh...
I. L. Bep. 1 All. 97.
■ Application for — Transferred for Execution.
See Execution of Decree. IS. 17.
—Application to Enforce a Decree.
See Limitation. 89.
Prabacharra *. Potannah I
L. Bep. S Wad. 1.
— — Application to Enforce or keep in force
Decrees or Orders.
See Limitation. 70. 74. 76. 77. 78.
80. 88. 85.
See Execution of Decree. 18.
■^—Application (Informal) to Enforce or keep
in force the Decree,
Sec Limitation. 80.
Bbhari Lalv. Sauk Rah. ..I. L.
Bep. 1 All 676.
*— Application to Enforce or keep in force
the decree— Application under Act VIII.
of 185a, § 385.
s„ Limitation. 77.
Hussaih Bakskv- Madge.. .L L.
Bep. 1 All. 636.
EXECUTION OF ttZCREE-cenid.
— Application for Stay of— is not an Ap
Hon to enforce or keep in fore
See Limitation. 78.
Fakir Muhamvad v. Gulam Hu.
EAift...I.L.Bep.lAU.fi80.
— — Application tu Transfer Decree to another
Court for Execution is an Application to
enforce or keep in force Decree.
See Execution of Decree. 18,
— For Arrears of Rent — limitation.
Sec Bong. Act Vm of I860, § 68.
Gl> LOKB HONEY O. MOHRSH CHUN.
DER...Z. L. Bep. 8 Cal. 647.
For Arrears of Rent— Sale of Under-Ten-
ure — Process against other Immoveable
Property of Judgment Debtor.
See Bens;. Act VtO. of 1869, § 61.
Huekish Chiinder *. Collector
of JKS50RR...L It. Bep. S
Cal 713.
Assignment of Decree — Cross- Decrees,
See Execution of Decree, a.
Attachment and Sale of Bonds.
See Civil Procedure Code, Act X.
Of 1877, § 373.
NARSAHGOAS 0. TuLSIRAIf..,I. L.
Hep. 9 Bom. 668.
— - Attachment of Malikana Rights payable
for ever.
See Execution of Decree. 10.
Attachment and Sale of Money Decree-
See Civil Procedure Code, ActX. of
1877, § 273.
Sultan Kuar v. Gulzari Lal...
I. L. Bep. 3 All 390.
- Attachment of Pay of Military Officer.
Sec Execution of Decree. IS.
- Attachment of Unrecognized Portion of a
Bhag in a Bhagdari or Ndraaduri Village
In.
See Bombay Act V. of 1869.
Ranchodas I. RANCHODAS...I. If,
Bep. 1 Bom. 681.
Ardasir v. Muse...L L. Rep. 1
Diarized by Google
{ 615 >
DIGEST OF CASES.
( 618 )
EXECUTION OF DECREE- cokW.
— Attachment— Will — Demttter — Bequest
of Surplus — Inconsistent Condition,
See Hindu Law -Will. 13.
ASHUTOSH DUTTH. DuMaChUHN-
L.Bep. el. A. 182.
Barred under Act XIV. of 1859— Applica-
tion for—made after Act IX. of 1871 came
See Limitation. 89.
pRABACKARRA «. POTANHAH ... I.
L. Rep, 9 Had. 1.
. Bengal Act VIII. of i860, §§ S9i &>, *$—
Sale of Tenure.
See Execution of Decree. 8.
Breaking open Door of Shop in.
Set Breaking- open Doors.
Damodak Parsotam v. Ishwar
Jetha... X. L. Bep. 3 Bom.
89.
— - Breaking open Doors.
See Housebreaking.
In the matter of Jotharam Da-
VAY...L L. Bep. S Mad. 30.
Compromise of Decree — Payment ot In-
stalments accordingly— S ubseque nt Appl i -
cation for Execution more than three
years after Decree.
See Limitation. S.
Stowell v. Billings...!. L. Bep.
1 AIL 860.
Death of Defendant — Order reviving De-
cree against a Person not the Legal Re-
presentative of Deceased — Appeal.
SfeStat.a4&25Vict.,C.104,§15.
7.
Pogose v. Catchick...L L. Bep.
SOal. 708.
In the matter of POGOSB...L L.
Bep. 8 OaL 710. n.
of Third Person under Sale
See Sale in Execution of Decree. 19.
Harasatoola v. Brojokath
Ghose.-.I. L. Bep. 3 OaL
729.
- Duty of Court executing Decree of another
Court
See Execution of Decree, is.
EXECUTION OF DECREE— amid.
— Enforcing Security Bond for Costs against
5m Security Bond.
CHUTTBRDHARSB V. RAIIBELA.
shee i, l. Bep. s cri-
sis.
—— Sx-frarte Decree— Limitation.
See Limitation. 67.
Prosonno Chukder e. Prosonno
Cookar.,.1. L. Bep. 3 Cal
193.
— — Formal Possession of Land given to Decree
bolder in — Limitation.
See Limitation. 13. 29.
Koonjo Mohun 0. Nobo Coohar.
I. L. Bep. 4 Cal. 316.
Umbicka Churn v. MadhurGho-
sal Ibid. 870.
— In Force at time of Passing of Act XIV.
of 1859 — Limitation for.
See Limitation. 88.
Delhi & London Bank o. Or-
chard L. Bep. 4 I. A.
137 ; L L. Bep. 3 Cat 47.
— — In Force when Act IX. of 1871 came into
operation — Limitation for.
See the cases under Limitation. 88
to 89.
Injunction to restrain — Court of Co-ordi-
nate Jurisdiction— Erroneous Order of
Substitution of Defendants.
See Injunction. 9.
Dhuronidhur Sen t. The Agra
Bank L L. Bep. 4 Cal.
380.
— Interest on Costs cannot be given in — un-
less decreed.
See Interest. 9. 10.
Forbster if. Secret aryop Stats'.
L. Bep. 4 LA. 137; L L.
Bep.3CaL161.
Mahatab Chundsr t. Rah Lall.
L L. Bep. 3 Cal. 851.
— Interest on Decree cannot be levied in—
where Decree silent as to.
Set InteiMt 11.
Seth Gokuldas a. Muhli L.
Bep. 61. A. 78; LL. Bap.
SOal. SV3.
Diaxized by Google
( 517 )
DIGEST OF CASES.
EXECUTION OF DECREE— amid.
- Irregular— Refund of Amount levied.
See Execution of Decree. D.
See Estoppel. 2.
GoVINDn.SAKHARAM.'..LL.Rep.
3 Bom. 42.
Irregularity in— not prejudicing Judgment
Debtor.
See Sale in Execution of Decree. 2.
Ghazi <b. Kadir BaksH...
Rep. 1 AIL 219.
■■ — Joint Decree — Application for Partial — by
one Decree. Holder.
See Limitation. 75.
Ram Autar v. Ajudkia Singh ..
I. I,. Rep. 1 All. 231.
'■ Lands Seized and Sold out of Jurisdictioi
—Eviction at Purchaser— Right to recove
Purchase Money.
See Sheriffs Sale. 1. 2.
Dob ad Ally Khan v. Abdul
Azebz..XL. Rep. 1 Cat 55;
L. Rep. 5 LA. 116; B.C. I.
I.. Hep . S CaL 8
— " Last preceding Application."
See Civil Procedure Code, Act X.
Of 1877, f 230.
Rah Kishem «. Sedhu I. L.
Hep. 2 AIL 276.
Legitimacy, Question of — decided it
See Execution of Decree. 9.
Limitation for.
See Limitation ; see the Index heading '
Limitation for Execution of
Decree.
i Limitation for — Acknowledgment of Time-
barred Decree, by Judgment Debtor.
See Limitation. 43. 44.
Kally Pkosokno v. Hbera Lal...
I. L. Rep. 2 CaL 468.
Munool Prashad e. Sham a
Kahto...L L. Rep. 4 CaL
70S.
— Limitation for — Application under §385,
Act VIII. of 1859,
See Limitation. 77.
Husain Baksh v. Madge. ..I. L.
Sep. 1 AU. S2S.
EXECUTION OF DECBEE-nmM.
-Limitation for — Application by Purchaser
at Execution Sale for Possession — Right
of, accrues on Date of Certificate, not of
Confirmation of Sale.
See Limitation. 96.
Basapa a Majiva...I. L. Rep. 3
Bom. 433.
— Limitation for — " Applying to enforce a
Decree" — Application simfliciter " to
keep the Decree in force."
See Limitation. 83. 85. 88.
Chundbr Coomar t>. Bhogobottv.
I. L. Rep. 3 CaL 235.
Ram Sookdeku. Gophssur. . .Ibid .
716.
p. Lalitram-.-I- L.
Rep. 2 Bom. 294.
) transfer
1 for — Applicatio
Decree for Execution.
See Execution of Decree. 18.
- Limitation for— Barred under Act XIV. of
igjg — Application for — made after Act
IX. of 1 37 1 came into force.
See Limitation. 89.
PRABACHARRA V. PoTANNAK.-.I.
L. Bop. 2 Mad. 1.
- Limitation for— Compromise of Decree-
Receipt of Instalments out of Court not a
Proceeding to keep Decree alive.
See Limitation. S.
S to well a. Billings... I. L. Rep.
1 All. 350.
-Limitation for— " Date of Applying."
See Limitation. 78.
Fakir Muhamad a Ghulam Hu-
sain...L L. Rep. 1 AIL 580.
- Limitation for— Exclusion of Time occu-
pied in unsuccessful Attempts to obtain
Execution in Court without Jurisdiction.
See Limitation. 40.
Jivah Singh v. Sarnam Singh...
I. L. Rep. 1 AU. 97.
- Limitation for— Exclusion of Date of For-
mer Application.
Sec Limitation, 82.
Dhonkssur Kokk v. Roy Gooder
■Sahov I. L. Rep. 2 CaL
Diarized by Google
( :
)
DIGEST OF CASES.
{ rao )
EXECUTION 07 DECREE— wn«.
Limitation for — Execution Proceedings
struck off the Kile— Subsequent Applica-
tion more than three years after previous
one, in substance K> continue Previous
Proceedings.
See Limitation. 73. 74. 80. 86.
IsSUREK DaSSEB v. ABDUL KhA.
lak I. L.Sep. 410.
Paras Ram o. Gardner I. L.
Rep. 1 All. 300.
Behari Lal o- Sauk Rah. ..Ibid.
670.
Hurhohath v. Chunni LAL...L It.
Bep.4Cal.877.
■ Limitation tor—Ex-fiorte Decree— Appeal
from Order refusing to set aside.
See Limitation. 87.
Sheo Prasad v. Anrudh Sin
L L. Rep. 3 All. 278.
— Limitation for— Ex-forte Decree— Notici
of Execution not sufficient " Process for
enforcing."
See Limitation. 67.
Prosonno C. Coohdoo e. Pro-
SONNO C. SlKDAR...I. L. BOP.
3 Cal. 138.
— Limitation for — Final Decree of Appellate
See Limitation. 76.
Imam Au «. Dabamddhi Ram...
I. L. Sep. 1 AIL 008.
— — Limitation for — of High Court in Special
Appeal reversing Decrees of Lower Court
under which Defendant put in
See Limitation. 69.
Umiashahker v. Chotala
L. Sep. 1 Bom. 19.
See Limitation. 76.
Imam Au v. Dasaundhi Ram. ..I.
L. Sep. 1 All. 808.
— — Limitation for —in Force before Act XIV.
of 1S59 was passed.
See Limitation. 36.
Delhi and London Bank v.
Orchard... L. Sep. 4 I. A.
137; L L. Sep. 8 CaL 47.
EXECUTION 07 DECREE— ton Id.
-Limitation for— in Force when Act IX. of
1871 came into operation — Proceedings
sufficient to bar Limitation under Act
XIV. of 1850, pending till 30th September
1871 — Informal Application on 30th Sep-
tember 1871, more than three years after
last preceding Application.
See Limitation. 70.
JlBHAJ V PABBHU...L L. Rep. 1
Bom. 09.
— Limitation for — in Force before Act IX. of
1871 came into operation — Substantive
and Adjective Law.
See Limitation. 81. 84.
Pasupati ». Pasupati ,X L. Rep.
1 Mad. S3.
Unnoda P. Roy v Sheikh Koor-
BAN...I. L. Rep. 3 Cal. 018.
-Limitation for— Informal Application to
keep in force the Decree.
See Limitation. 80.
Behari Lal*. Sauk Ram ..L L.
Rep. 1 AU. 670.
— Limitation for — Interruption of Execution
Proceedings — Suit against Intervener —
Application for Execution within three
years of Decree in such Suit.
See Limitation. 74.
Paras Ram v. Gardner I. L.
Rep. 1 All. 800.
See Limitation. 70.
RamAutar v. Ajudhia I. L.
Hep. 1 AU. SSL
- Limitation for — Payable by Instalments.
See Limitation. 71. 71a. 73.
- Limitation for — Power of the Court on
Presentation of Application for — to con-
sider whether — was barred at date of
Previous Application for — notwithstand-
ing Notices issued.
See Limitation, 84.
Unkoda Pershadt. Sheik Kook-
ban...L L. Rep. 3 Cal. 018.
Diarized by Google
DIGEST OF CASES.
( 622 )
EXECUTION OF DEOEEE-
Stc Appeal— Civil. 19.
Wilavat-un-Ntssa r. Najib un.
Nissa.-.I. L. Rep. 1 AIL
983.
S« Limitation. 79.
Jai Shamkar *. Tsti.iv ..I. L.
Bap. 1 AH. 5S6.
- Against Member of Undivided Hindu
Family.
Set Bombay Act V. of 1888.
Ardasir *. Musa.-.l. L. Step. .
1. Bom. 601.
5w Civil Procedure Code, Act
VIII. of 1809, f 269.
Kalapa v. Vemkatesh...I. L.
Rep. 2 Bom. 676.
- Against Member of Undivided Hindu
Family— Judgment Debtor's Share in
Ancestral Undivided Property may be
sold in.
.See Hindu Law — Alienation of .
Ancestral Property. 1 to S.
Bhikan Du«.Puka„.L L. Rep.
SAIL 141. -
GlRDHAREE Lal 11. KANTO LAL...
L. Rep. 1 1. A. 831.
Mussuhut Phoolbas Koonwar ~
«. Lalla Joceshur Saiiov...
L.Rep. 8L A. 7; L L.
Bop. 1 O&L 336.
Sura] Bunsi Korr v. Sheo Prr.
shad Singh,,. L. Rep. 6 I.
A. 88. ~
Jallidar Singh v. Ram Lal...I.
L. Rep. 4 OaL 798.
Set Hindu Law— Liability of
Anceatral Property in the
hand* of the Heirs for the
Debt* of the Ancestors.
Narrayan e. Nabso„.I. L. Rep.
1 Bom. 863.
See Hindu Law — Undivided Fa-
mily. 3. 4. 7. 8.
Deendayal «. JuoDEEr Narain...
L. Bop. 4 I. A. 247; LL. '
Bep. 8 OaL 188.
Rai Narain Das ». Nowhit Lai...
L L. Bep. 4 OaL 800.
EXECUTION OP DECREE- (W,/.
Lachki Dai v. Aswan Singh...
L L. Rep. 3 OaL 313,
Babaji v. VA3ADBV..X L. Rep. 1.
Bom. 90.
See Sale in Execution of Decree.
10. 16.
Vehkataramayvan v. Venkata-
SUBBRAMANIA I. L. Rep.
1 Had. 858.
Venkatasami v. Kufpaiyan
Ibid. 364.
— Mesne Profits and Interest not provided for
in Decree-Act XXIII. of tS6i, ( II.
See Hesne Fronts. 1.
SADASIVA PlLLAI V. RAUAUNOA
Pillai Ih Bep. 31. A.
919.
— Mesne Profits — Possession obtained under
Decree reversed on- Appeal.
See Hesne Profits. S.
Lati Kooer o. Sobadra Kooer...
LL Bep. 8 OaL 720.
— For Mesne Profits.
See Execution of Decree. 30.
-Against a Military Officer.
See Execution of Decree. 16.
— Misdescription of Property io Application
for-
■See Lis Pendens. 1.
Lala Kali Prosad t. Bl'li Singrw
L L. Bep. 4 Cal. 789.
— Money Decree— Mortgage — Right of Pur"
chaser at Sale.
See Sale in Execution of Decree. 4.
KhubChandv. Kalian Daks... I.
L. Bep. 1 AIL 240.
— Money paid in Excess through Mistake
See Act XXHL of 1861, * U.S.
Agra Savings Bank «. Sri Rah
Mitter.,.1. L. Bop. 1 All.
388.
-Money unduly realized in— Recoverable by
Application in Execution without separate
Suit.
Set Execution of Decree. 6.
3lgltlzSdbvCOOglC
( 523 }
DIGEST OF CASES.
EXECUTION OP DECREE— anOd.
On Mortgage — Notice of Proceedings in —
to Prior Purchaser of Mortgaged Property
See Lis Pendens. 1. •
Lala Kali Prosadb. Buli Singh.
I. L. Bep. 4 Cal. 789.
On Mortgage of Family House — Sale.
See Hindu law — Alienation of
Ancestral Property. 1.
Bhikham Das o. Pura I. L.
Sep. 2 All. 141.
Mortgage of Ancestral Property by Father
— Mitakshara Law — Purchasers at Exe-
cution Sale with Notice of Co-Sharers'
Claims — Effect of Execution Sale on
Share of Deceased Judgment Debtor.
See Hindu Law — Alienation of
Ancestral Property. 8.
SuRAJ BUNSJ KOBR V. ShBO Per.
SHAD SlNQH L. Sep. 6.
I. A. 88.
Mortgagee in Possession — Ouster of — in
Execution of Decree against Mortgagor.
Sec Civil Procedure Code, Act X,
of 1877, § 838.
Skafi-uD'Din v. Lochah Singh
I. L. Bep. 2 AIL 84.
• Obstruction to Purchaser at Sale in.
Srt Sale in Execution of Decree, IS,
HAR ASA TOOL AH «. BrOJONATH
Ghose...I. L. Bep. 3 Cal.
729.
For Partition.
See Decree for Partition.
Sheikh Khoorshbd Hossein «,
NllBBBB FAT1MA...L L. Bep.
3 Cal. 651.
See Execution of Decree. 11.
— — Payable by Instalments,
See Limitation 71. 71a. 73.
— For Performance of Specific Act.
See Civil Procedure Code, Act VIII.
of 1859, f 800.
Ajhasi Kuarc. Suraj Prasad...
L L. Bep. 1 AU. SOI.
EXECUTION OP DECBEE-ra««.
- Personal Decree against Father — Sale in—
ol Family Property — Suit by Son for his
Share.
Sec Sale in Execution of Decree.
10. IB.
Vbnkatasami Naik e. Kufimi-
VAN...L L. Bep. 1 Had. 354.
Venkataramavyan t> . Vehkata-
subbrauania ..Ibid. 358.
- Persona! Decree against a Hindu Widow.
&f Personal Decree against a Hin-
du Widow.
Baijun Daobev it. Bkij Bhookun.
L. Bep. 2 L A. 375 ; L L.
Bep. 1 Cal. 133.
- Postponing Sale in — Fresh Proclamation
necessary.
see Sale in Execution of Decree. 6.
Goopbe Nath o. Roy Luchmb-
PUT...L L.Bep. 3 Oal. 542.
- Proceedings in — Commenced before Act X.
of 1877, governed by Act VIII. of 1859.
Sec Appeal— Civil. 6. 26. 28.
Chito v. Krishna]!. ..I. L. Bep.
3 Bom. 214.
Thakuk Prasad ». Ahsan Au...
L L. Bep. 1 All. 668.
Uda Begun v. Imav-vd-Din...L
L. Bep. 2 AIL 47.
- Proceeding to Enforce or keep in force a
Decree — Compromise and Receipt of In-
stalments out of Court.
See Limitation. 5.
Stowell v. Billings.. -L L. Bep.
1 AIL 860.
- Proceeding to Enforce or keep in force a
Decree — Striking off Execution Case for
Default of Prosecution is not.
See Limitation. 23.
Raghu Ram it. Dannu Lal.,.1. L.
Bep. 3 AIL 285.
See Receiver, Property in hands
of.
Hbm Chundeh Chundbr e. Pram-
kristo Chundbr I. L.
Bep. 1 Cal. 403.
Digitized byGOO^Ie
( 625 )
DIGEST OF CASES.
)
EXECUTION OP DECREE— ronW.
Rateable Distribution of Sale Proceeds.
See Civil Procedure Code, Act VTQ.
of 1859, §1 370, 271.
Hasook Arra v. Jawadoonissa...
I. L. Rep. 4 Cal. 29.
Against Representative of Deceased Maho-
medan— Right of Purchaser at Sale i
See Bale in Execution of Decree.
20.
Hendry b. Mirrrv Lall Dhur...
T. L. Bep.aCftLH95.
■ Resale in-
See Re-sale in Execution of Decree.
Anandrav v. Shekh Baba...I. L,
Rep. 2 Bom. 562.
Reversal of Sale of Lands sold in — Appti.
See Limitation. 78.
ISSUREE DASSEE V- AuDOOI. KHA-
lak...L L. Rep. 4 Cal. 415.
Right of Representative of Deceased Judg-
ment Creditor to continue Execution
Proceedings commenced by him — Limi-
Sec Limitation. 06.
GuLABDASo. I..AKSHMAN NARHAR,
I. L. Rep. 3 Bom. 221.
Rival Decrees — Decrees of High Court and
Privy Council.
See Execution of Decree. 14.
Sale in.
See the cases under Sale in Execu-
tion of Decree; and She-
riff s Sale.
— Sale of Tenure in.
See Execution of Decree. 8.
— — Second Appeal from Order in.
See Appeal— CiviL 28.
Uda Bkgum «. Imam-ud-Din.,.1.
L. Rep. fi All. 74.
against a Sirdar, against Sirdar's Heir,
not being himself a Sirdar.
See Limitation. 62.
Sakharak«.Ganesh...I.L. Rep.
8 Bom. 198.
Andsw Execution of Decree, fi.
See Appeal— Civil. 23.
EXECUTION OP DECREE— wnftf
of Small Cause Courts — Mofussil.
See Execution of Decree. 21. 22. 28.
of Small Cause Court— Presidency Town.
See Execution of Decree. 24.
See Fixtures.
Mirroo v. Brindabun I. L.
Rep. 4 Cal. 948.
On Specially Registered Agreement under
f S3, Act XX. of i860— Appeal.
See Appeal— Civil. 7. 11. 12.
BhyrubChunder e. Golap Coo-
mark I. l. Rep. 3 Cal.
517.
Ram.
?. Bans
L L. Rep. 1 AIL 377.
WlLAYAT-UN-NlSSA 0. WaJIB-UH.
Nissa Ibid. 583.
On Specially Registered Bond— Limitation
—for.
See Limitation. 79.
Jai Shankar b. Tetley I. L.
Rep. 1 AIL 586.
See Appeal— Civil. 12.
WlLAYAT-UN-NlSSA u. WaJIB.UN-
Nissa LL. Rep. 1 AIL
683.
On Specially Registered Mortgage Bond.
Sec Sale in Execution of Decree. 5.
Akhe Ram v. Nand Kishore...
I. L. Rep. 1 AIL 236.
Stay of— pending Appeal— Sureties.
See Civil Procedure Code, Act VUL
of 1869, { 338.
Shivlalo. Afpaji...L L. Rep. 3
Bom. 654.
— Stay of — pending Appeal from Order refus-
ing to postpone— Sale in.
See Stay of Execution.
Harshahker Parshad. I. L.
Rep. 1 AU. 178.
See Civil Procedure Code, Act VEIL
of 1859, f 197.
DlLDAR HOSSEIM V. MlljEEDUN-
missa I. L. Rep. 4 Cal.
Digitized byGOO^Ie
( 827 )
DIGEST OF CASES.
(
)
EXECUTION OF miCREE-ctmtd.
Transfer of Proceedings in — by District
Judge from Subordinate Court.
See Civil Procedure Code, Act VI1L
of 1886,* 6.
Gava Phashad o. Bhup Singh...
L L. Bep. 1 AIL 180.
1. —'Acquiescence.') Certain property was
attached in execution of a decree against the j udg.
ment -debtor in 1847. This attachment was set
aside on the application of persona claiming the
property as their own. These persons were sued,
together with the judgment -debtor, by the judg-
ment-creditor, and another decree was passed in
'^55. declaring the said property liable to sale in
execution of the decree of 1847. The decree of
IS55 had been erroneously continued in execu-
tion by the representatives of the decree-holder
against the heirs of the judgment-debtor, at
various times from 1855 down to the 33rd of
November 1875, when execution was sought of
a balance alleged to be still due under the de-
cree of 1855 :—
Held, that the decree not being against the
defendants or their ancestor, but only a decree
declaring the liability of the property to sale,
the balance could not be realized under that
decree, nor could the balance due under the
decree of 1847 be realized under the decree of
■855- The balance due under the decree of
1847 could only be recovered in execution of
that decree, and it was no answer to the objec-
tion that the judgment-creditors had on previous
occasions taken out execution in the same way
without opposition on the part of the judgment-
debtors. Bind* Prasad t>. Ahmad Ali span-
iie and Oldfield, ]}...!. T* Bap. 1 All. 368,
1877.
3. ■ Application by Mooitear en behalf
of Judgment-Creditors — Act VIII, of l8jo,
§ 307.] An application forexecution of a decree
on behalf of all the judgment-creditors
presented in Court by a Mooktear, who had
signed the names of all the execution-creditors
except one, who had signed bis own name : —
Held, that though objection might have been
taken to the form of the application at the time
it was presented, yet, having been once accept.
ed by the Court, it was substantially an applies
tion on behalf of all the judgment-creditor
sufficient to prevent the operation of the law of
EXECUTION OF DECREE— tontd.
limitation. Ahto Misuse v. Bronco hook her
Dabee. Jackson and Tottenham, J] I. L.
Hop. 4 Cat 80S, 1878.
8, Assignment of Decree- -Cross-Decrees
—Act X. of 1877, i 246.] S. and two other
persons held a decree for costs against M.r
which did not specify the separate interests of
each in the decree, and M. held a decree for
money against S. alone. S. assigned the decree
to the respondents, who applied for its execu-
tion as transferees. U. sought to treat his decree
against 5. as a cross-decree under | 246 of Act
X. of 1877 .—Held, that the decree purchased
by the respondents was not a decree between the
same parties as the parties to the decree held
by M., — in the latter 51 was the sole judgment-
debtor ;— and that Jf.'s decree could net, there-
fore, be treated as a cross-decree ander that
section. Mubli Dhab v. Pubsotah Das.
Pearson and Turner,}]...!. L. Rep. 8 All.
01, 1878.
S. C tinder Appeal— Civil. 98.
4. — — Limitation — Deposit of Money and
Jewels as Security for Stay of Execution.! On
an application to an Appellate Court for stay of
execution of a decree, under which as order for
sale of certain property had been made, money
and jewels of value sufficient to satisfy the decree
were deposited in Court, in lieu of security fw
the satisfaction of the decree, in the event of the
judgment of the Appellate Court being adverse
the judgment -debtor. Theorderof the Lower
Court directing the sale was afterwards confirmed
by the Appellate Court.
More than three years after this last-mentioned
order, and more than three years after any
proceedings had been taken to execute the
original decree, the securities applied to the
Appellate Court for a return of the deposit, on
the ground that the execution, of the decree bad
become barred, and that the judgment -creditor
could no longer demand a transfer to him of the
deposit. The Court of first instance rejected
the application, but the lower Appellate Court
reversed this order on the ground that the exe-
cution of the decree was barred by limitation.
Held, that no question of limitation arose ; if
the money and property deposited was sufficient
for the satisfaction of the decree, it was not ne-
cessary to take any further proceeding in
execution. So far as the money was concerned.
D.gmzed by G00gle
(
>
DIGEST OF CASES.
{ 680 )
EXECUTION OF DECREE— conid.
when the appeal was dismissed it must be taken
to have been transferred to the credit of the
decree-holder, and the Court should deal
tarly with the jewels pledged, converting them
into cash for his benefit. ShboGholamSakoo
V. RaHut HoSsein. Ainslie and McDonnell, JJ
1. 1. Bep. 4 CaL 6; 2 Cal. Eep. SOS, 1878.
B, Against Sirdar's Heir -mho is not
Sirdar — Jurisdiction — Estoppel — Refund of
Amount levied in Irregular Execution.'] The
mode of enforcing against a Sirdar's heir (who
is not himself a Sirdar) a decree passed by the
Agent's Court against that Sirdar, is by a suit,
i process founded on such
Where a Court on the application of a decree-
holder made an order for execution, which order
was set aside on appeal, on the ground that such
Court had no jurisdiction to make such order : —
Hrid, that the decree -holder, having invoked
the jurisdiction of the Court, was estopped from
calling in question an order subsequently made
by it directing him to refund the money realized
under the order for execution. GoviNn Vaman
v. Sakharah Ram Chandra. Westropp, C.J.,
and West, J I. L. Bop. 3 Bom. 43, 1878.
S. C. under EatoppeL 2.
fl. Money unduly realised in — Recovery of
—Separate Suit— Act X. a/1877, 1 *44-] Moneys
realized as due under a decree, if unduly realized,
are recoverable by the judgment -debtor by appli-
cation to the Court executing the decree, and
not by separate suit. The opinion of Stuart,
C.J., in The Agra Savings Baniv. Sri Ram Hitter
(I. L. Rep. 1 All. 388) differed from. Partab
Singh v. Beni Ram... Turner, CJ. (Offg.), Pear.
*>,, and Oldfield, JJ I. L. Bop. 2 All. 61,
1878.
7. Act VIII. of l8sg, i r*a, and Act X.
of 1877, § 19S— Change of Law pending Execu-
tion of Decree — Prior and subsequent Attacking
Creditors— Act I. of 1868, f 6.J A judgment-
creditor in execution of his decree attached
certain property belonging to his judgment-
debtor while Act VIII. of 1S59 was in force.
This property was ultimately sold on the oth
January 1879, after Act X. of 1877 came into
force. Two days before the sale another judg-
ment-creditor applied to have his decree satisfied
out of the same property by a rateable distribu-
tion of the proceeds which might be realized.
EXECUTION OF DECKEE-r ontd.
Held, that the prior attaching creditor, by his
attachment under Act VIII. of 1859, acquired)
under f 1 70 of that Act, a right to have his decree
first satisfied in full, and that he was not deprived
of this right by the change in the law (Act J.
of 1868, j 6). Narandas v. Bai Manchha.
Melvill and Kemball, JJ X. I,. Bop. 8 Bom.
817, 1878.
— Salt of Right, Title, and Interest-
Act VIII. of lift-Act VIII. of 1869 (Bengal)
60,66.] In attaching the property of a
judgment-debtor, whether in an under- tenure, or
ordinary leasehold interest, under Act VIII.
ol 1859, only the right, title, and interest of the
judgment-debtor can be attached and sold; but
tenure be sold under § 59 of Bengal Act
VIII. of iS6g, the purchaser by virtue of f 66 of
that Act acquires it, under the provisions of f f 59
ind 60 of the Act, free from all encumbrances
which may have accrued thereon by any act of
the holder of the under. tenure, his represent-
or assigns, unless the right of making such
encumbrances shall have been expressly vested in
the holder by the written engagement. Doolar
Chand Sahoo r. Lalla Chabbel Chand...L.
Rep. 8 L A. 47 ; 3 Cal. Rep. 661, 1878.
9 Jurisdiction — Act VIII. of 1859,
208— Act XXIII. of 1861, 5 II— Parties to
Suit — Question of Legitimacy.'] The widow of
decree-holder was substituted under ( 103
of Act VIII- of 1859, for the purpose of prosecut-
appeat to the High Court. The appeal
was prosecuted, and, pending an appeal to the
Privy Council from the decree passed by the
High Court, the widow applied for execution on
behalf of herself and as guardian of her infant
son, whose legitimacy was disputed, and even-
tually decided in the execution proceedings, and
obtained a declaration of right to execute the
whole of the decree in her two capacities, partly
for herself and partly in her capacity of guardian:
of her son -.—
In a suit by the widow of the judgment-debtor
set aside this judgment on the ground — (1)
that in an execution proceeding it was not com-
petent to the Court to entertain the question of
legitimacy; and (a) on the merits: —
Held, that the issue of legitimacy was not res
judicata by a competent Court in a competent
proceeding.
The infant son was not a transferee of the
scree within the terms ol f 208 ol Act VM. of
D.gmzed by G00gle
DIGEST OF CASES.
( 532 )
EXECUTION OF DECREE— contd.
1 859, and that section was not intended to apply
to cases where a serious contest arose with
respect to the rights of persons to an equitable
Interest in a decree. It was not intended to
enable them to try an important question such
as the legitimacy or illegitimacy of an heir.
Semble, even if it did apply, there being no
appeal from the judgment passed under it, a suit
would lie for the purpose of reversing an order
made in pursuance of it.
Nor did § 11 of Act XXIII. of iSfii apply;
there must be two conditions to give the Court
jurisdiction under that section, — the question
must be between parties to the suit, and must
relate to the execution of the decree. But the
infant son was in no proper sense a party to the
suit in which the decree had been passed. He
was not on the record when the judgment was
given, nor when the decree was made. And
though he subsequently applied for execution of
the decree, that did not constitute him a party
to the suit. Abeeooonissa Khatoon v. Amee-
roonissa K"ATOON...L. Hep. 4 I. A. 66,
1876 ; I. L. Rep. 2 Cal. 327.
10. Attachment of Malikana Rights
payable for ever— Act VIII. 0/1859, §§ 33S. ^36,
237.] A. and B. were entitled to receive an-
nually and for ever a specified amount by way of
Malikana rights from the Collector as compen-
sation for their extinguished rights in lakheraj
lands. In execution of a decree, C, on the 13th
of September, purported to attach, under § 237
of Act VIII. of 1850, A.'s share in such specified
amount. Subsequent to this attachment, ni,,
on the 13rd of September, A. and B. mortgaged
their rights to tbe plaintiff. In a suit brought
by him against A., B., and C:—
Held, that attachment under { 237 was inap-
plicable to a right to receive money for ever ;
that such an attachment is only good so far as
it relates to any specific amount, which may be
set forth in the request to the officer in whose
hands the moneys are, as being then payable, or
likely to become payable; and that the attach-
ment in question was therefore invalid.
Sembie — The attaching creditor should have
proceeded under Ij 235 or § 236. In either of
such cases the defendant, the person to whom
the money was payable, would be entitled to
notice that he was not at liberty to alienate his
rights. Nilkunto Dby 0. Hurro Soondeky
DosseE. Jackson and Cunningham, JJ...I. L'
Hep. 3 Cal 414 ; 1 Cal. Rep. 418, 1878.
EXECUTION OF DECREE— cemtd.
11, Decree for Partition— Partition of
Poojah Dalan— Consent of Coparceners— Modi-
fication of Execution Order by Courts.'] A decree
for partition directed the partition of a family
dwelling-house with its appurtenances, including
poojah dalan with a courtyard adjoining it.
At the request of two out of. three coparceners,
the Civil Court Ameen did not partition the
poojah dalan and courtyard. To this the third
coparcener objected, but her objection was over-
lied by the Lower Courts, and It was directed
that the property in question should remain
Held, per White, ]., that having regard to the
form of the decree, it was not open to the Court
executing that decree, to order that any part
of the property should remain joint, unless it
with the consent of all three coparceners
were parties to the suit. But considering
lature of the property, and the fact that
: of the coparceners desired that it should
;ontinue undivided and be used as thereto.
tn its present condition, the Court was not
ired to direct that it should be divided
among the three coparceners in proportion to
■cs, without giving the coparcener or
coparceners who wished to keep it entire an
opportunity for doing so, by buying the interest
of the coparcener or coparceners who did not
ish to keep it undivided, If such latter copar-
ner or coparceners would agree to sell the
me. Mitter, J , concurred in the order, and
id, " I desire to add that I would put it, not on
the ground that the Lower Courts are precluded
by the decree from dealing with this properly
in the mode in which they have done, but on the
ground that the order which we have passed is
equitable." Rajcoomaree Dassee >.
Gopal Chunder Bose I. L. Rep. 3 Cal.
614, 1878.
12. — Transfer of Decree — Jurisdiction
■Striking Case off the File— Act VIII. of 1859,
(( 385, e860 The jurisdiction of the Court to
which a decree has been transferred for execu-
tion is limited strictly to carrying out such
execution. Such Court has no power to issue a
certificate under H 285 and 2S6 of Act VIII. of
1859, transferring the decree, already transferred
to it, to another Court for execution. The Court
to which a decree lias been properly transferred
for execution having struck the case off the file,
subsequent application for a further transit!
of the case to another Court for execution, should
D.gmzed by G00gle
( 533 )
DIGEST OF CASES.
( 5M )
EXECUTION OP DECREE— re
be made to the Court which originally passed
the decree sought to be executed. Shib Nakaii
Sipaha v. Befin Beiiary Biswas. Kemp and
Morris, JJ...I. L. Bep. 8 Cal 012; 1 CaL
Bep. 889, 1878.
See 17, infra.
IS. — — Decree passed in Name of Agent of
Firm — Application for Execution made by Agent
succeeding Agent named in Decree— Limitation.}
A decree was passed in favour of a firm, in
the name of the agent of the firm. The second
and subsequent applications for execution of
this decree were made by an agent oE the firm
who had succeeded the agent nami
decree. Certain persons, alleging that they
were the proprietors of the firm, applied for
execution of the decree. The application wa
refused, on the ground that the proceedings ii
execution taken by the last-mentioned agent
were invalid, and that execution of the decree
was therefore barred by limitation,
field, (hat such proceedings, however irregu-
lar, were not invalid. Lac h man Bibik. Patni
Rah. Pearson and Turner, JJ...I. L. Bep. 1
All. 610, 1877.
14. Rival Dtcreei-~Decree of High Court
and of Privy Council.] On appeal by V. the
High Court set aside a decree which the sons of
K. had obtained in the Court of first instance
against U. and other persons, in a suit brought
by them for possession of one-third of certain
real property. At the same time, on appeal by
two of the other persons aforesaid, it I "
decree which U. had obtained against those
persons and the sons of X. for possession of
two-thirds of the same property, in a suit in
which he claimed possession of the whole. It
subsequently, on appeal by U. against that por-
tion of the decree made in the suit brought
by him which dismissed his claim in respect to
one-third of the property, reversed that portion
and gave him a decree for the whole. The
sons of K. appealed to the Privy Council only
from the decree of the High Court setting
aside the decree obtained by them in the Court
of first instance for one-third of the property.
The Privy Council set aside this decree of the
High Court and restored the decree of the
Court of first instance. In the mean time U.
was put into possession of the whole pro.
perty, in execution of the decree of the High
Court which he had obtained in the suit brought
by bin. When the sons of A*., in the execution
EXECUTION OF DECB1SS— c»n«.
of the decree of the Privy Council, applied for
possession of one-third of the property, V.
opposed the application on the ground that he
was in possession under a decree of the High
Court which had become final i—
Held, that the decree of the Privy Council
must be executed, notwithstanding that its
involved the disturbance of the
possession obtained by U. under the decree of
High Court which had become final. The
decree of the Privy Council was later in date, and
bad V. desired to secure his possession he should
have pleaded the decree ol the High Court in
'hen the suit in which the decree
of the Privy Council was passed was before that
tribunal in appeal. Udai Singh v. Bharat
Sinoh L L. Bep. 1 All 468.
15. Attachment of Pay of Military
Officer— Stat. 40 Vict., CI. 7, ( 99.] A decree
against a Military Officer serving in India,
specially directed, with reference to } 99 of
Stat. 40 Vict., CI. 7, that the judgment-debt
should be stopped and paid to the judgment-
creditor out of a moiety of any pay coming to
the judgment-debtor.
The decree being sent to Allahabad for execu-
tion, certain moveable property of the judgment.
debtor was attached, the District Judge dis-
allowed an objection to such attachment made
by the judgment-debtor, on the ground that it
rged before the Court which
made the decree, and not before him: — ■
Held, that the District Judge in receiving the
application for execution was bound to consider
whether there was anything to prevent execution
in the manner prayed ; and that the decree -holder
could not obtain satisfaction of the decree by
attachment of the judgment-debtor's moveable
property. Mercer ir. Nakpat Rai. Turner,
C.J- (Offig.), and Pearson, J...L L.Bep. 1 All.
780, 1878.
18. -
— Substance of Transaction.] In
proceedings the Court will look at
the substance of the transaction, and will not
in on mere technical grounds
when they find that it is substantially right.
Bissessur Lai.lSahoo v. Maharajah Luch-
messur Singh. ..L. Bep. 8 I- A. 333 ; 6 Cal.
Bep. 477.
S. C. under Hindu Law— Undivided
Family. 10,|
Digitized byGOO^Ie
( BSS )
DIGEST OF CASES.
( 686 )
EXECUTION OF DECREE- -ronid.
17. Transfer of Detree to another Court
for Execution — Assignment of Decree — Applica-
tion for Execution.'}, Where a decree waa sent
to another Court [or execution, and was subse-
quently transferred by assignment, and the trans-
feree applied for execution of the decree to the
Court to which it had been sent for execution : —
Held, that such application should be made,
not to such Court, but to the Court which passed
the decree. Kamr Baksh e. Ilahi Baksh
Pearson and SpanMU, JJ I. L. Jlep. 3 All.
283, 1879.
See IS, iupra,
18. Limitation— Application to enfora
or keep in force.] Held, that an application tc
the Court which passed a decree, that it may b<
sent to another Court for execution, is an appli-
cation to keep such decree in force within the
meaning of the Limitation Act. Collins e.
M aula Baksh. Pearson and Spankie, )]...!. L.
Hep. 9 AIL 284, 1878.
19. Transfer of Decree— Due Diligence
—Civil Procedure Code, Act X. of 1877, (f 230,
232— Application by Transferee for Execution-
Order for Notice to issue — Failure to pay Cou
Fees— Subsequent Application.) The transfer!
of a decree applied, while an application by the
original holder was still pending, to be allowed
to execute it. The Court, in accordance with
§ 232 of Act X. of 1877, directed notice of the
transferee's application to be given to the trans-
feror and the judgment-debtor. The transferee
failed to pay the Court fee leviable for the
of such notice, and the Court dismissed hi:
plication. The transferee subsequently applied
a second time to be allowed to execute the
Held, that such application could n
jected, with reference to §330 of Act X. of 1877,
on the ground that due diligence had not been
used on the former application to procure
plete satisfaction of the decree, because
application had not been granted, though the
order for serving the notice had been drawn up,
and, therefore, the question whether "on the
last preceding application" due diligence was
used to procure such satisfaction did not arise.
Sauk Alt Khan v. Muhammad Husain Khan
Spankieand Oldheld, JJ I_ L. Rep. 3 All.
884, 1879.
30. For Mesne Profits— Act VIII. of
1859 — Ascertainnent of Amount of Mesne Pro-
fits—Interest.] A decree had been obtained for
EXECUTION 07 DECREE— contd.
profits, which only allowed interest
upon the consolidated sum arrived at by the
Court as mesne profits after such mesne profits
had been ascertained. The Lower Court, in
estimating, in execution of this decree (which
was governed by the provisions of Act VIII. of
1859), trie amount of mesne profits due to the
decree -holder, added together the totals of the
rents which the Ameen found to have been paid
in each year to the Judgment-debtor by the
ryots, but did not allow interest on each year's
Held, that in assessing the mesne profits,
interest should have been allowed on each year's
compensation for loss of the money.
The judgment -creditor, who had been kept out
of possession, was entitled not merely to bare
rental, but to compensation for the loss he bad
sustained. In the present case, where the dis-
possession had extended over eight years, inter-
est should be charged for seven years on the
aggregate of the rents received or receivable
for the first year, for six years on the rents re-
ceived or receivable for the second year, and so
on; and the aggregate of these sums should
constitute the mesne profits which it was the
duty of the Court executing the decree to as-
certain and determine. Interest on this con-
solidated sum would then run as provided for
in the decree. Protab Ckunder Borooah v. Ranee
Suzno Moyee (14 W. Rep- 151), Sokkee Monte
Debia v. Biijoraj Mookerjee (17 W. Rep. 22S),
and Chowdhry Waked All v. Musst. Jumayt
(19 W. Rep. 87), followed. Hurrodurga
Chowdhrani b. Sharrat Soondekv Dabka.
Morris and Prinsep, JJ I. L. Rep. 4 CaL
674, 1878.
2L Of Small Cause Court — Mofussil—
Act X. of 1877, j 648] A decree of a Mofussil
Small Cause Court can be executed by it at any
place within the local limits of the jurisdiction
of the District Court to which it is subordinate,
as defined by ( 2 of Act X. of 1877, without
having recourse to the procedure under § 648
of that Act, which applies only to cases in which
a decree passed in one district has to be execu-
ted in another district. Badah Bebajea t.
Kala Chano Bebaiea. Jackson and McDonnell,
JJ I. L. Rep.4 Cai. 828, 1879.
23. Of Mofussil Small Cause Court
against Immoveable Property— Act XI- of l86J,
§§ 20, ;■-] The Judge of a Court of Small
Causes who has been duly invested with the
hy Google
( 6W )
DIGEST OF CASES.
EXECUTION OF DKCHEE-towfrf.
powers of a Subordinate Judge under the
provisions of Act XI. of 1S65, § 51, has
" general jurisdiction" within the meaning of
f 20 of Chat Act, and can consequently under the
provisions of that section, enforce a decree
of the Small Court against the imm
able property of the judgment-debtor within his
jurisdiction. Gopal v. Nankv. Turner and
OldfUid, Jj I. L. Hep. 1 All. 624, 1878.
28. Of Mofusstl Small Cause Courts
beyond tkeir Local Jurisdiction — Jurisdiction —
Civil Procedure Code, Act X. of 1877, f f 233 to
229 and 648.] Small Cause Courts in the
Mofussil are not at liberty to execute decrees
against (moveable) property beyond their local
jurisdiction. Mansuk Mozomdarh. Shivram
Devising. Wettropp, C.J., and MeMU,] I,
L. Rep. 2 Bom. 032, 1878-
34. ■ Of the Court of Small Causes at
Bombay— Act VIII. of 1859, j 2S7— Immoveable
Property—Act IX. of 1850, ( 78.] Although
the Bombay Court of Small Causes can only
enforce its decree against moveable property, yet
if that decree be transmitted to a Court to
which Act VIII. of 1859 applies, the tatter can,
under § 287 of that Act, enforce it against im-
moveable property also.
Quare, whether a Court executing the decree
of a Small Cause Court under f 78 of Act IX. of
1850 could enforce it against immoveable pro-
perty. In re Jagjivan N ANA b HOY. West and
N. Haridos, JJ...I. L. Bop. 1 Bom. 88, 1875.
EXECUTION AGAINST 8UBETT—
Giving Time to Principal — Interest.
See Principal and Surety. 8.
Rahanund ■. Chowdhkv Soon-
deb I. It Bep. 4 Cal.
831.
EXECUTION OP POWEB.OP APPOINT-
MENT.
See Will. 8.
Fkhrsenh- Simpson. ..I. L. Bep.
4 Osl. 614.
EXECUTOB— Assignment of Legacy to— by
See WilL 8.
Vauqhan u. Hbsbltinr I. L.
Bep. 1 All 768.
Hubst e. MUSSOOKIE Bank. Ibid.
762,708.
EXKCTJTOB— contd.
Hindu Will— Rights of.
. See Probate. 1.
- Renunciation of Probate by— Proof of Exe.
cution of Will in Court.
See Hindu Law— WilL 3.
SAR BO II UN COLA *. MOHKNOKO-
NATH......L L.B.6P. 4 Cal.
608.
— Residuary Estate — when Executors will
take in Absence of Express Devise.
See Will. 1.
Treefoorasoondhhy m Deren-
DBONATH...I. I* Bep. SOaL
46,
EXBOUTOB, ESTATE OF— Hindu Will-
Estate of Executor.} Where there is no gift of an
e to the executors of a Hindu will, indepen-
dently of the provisions of the Indian Succession
Act X. of 1865 as applied by Act XXI. of 1870
the wills, executed within the local limits of
e ordinary civil jurisdiction of the High
Courts, by Hindus after the tst September 1870,
the executors of a Hindu do not, in the character
:ly of executors, take any estate, properly so
called, in the property of the deceased) or, in
other words, the mere nomination of executors,
though followed by probate, does not of itself
confer any estate on the executor further than
the estate he may have by the express words of
the will, or as heir of the testator. Haniklal
Atmaram t. Maniksha Dihsha Coachman.
Green,] LL.Bep. lBom. 869,1876.
S C. under Hindu Lav— WilL 10.
2. Hindu WW— Right, of Exe,
Undispostd-of Residue"] The English a
law rule that the undisposed-of residue of perso-
nal estate vests in the executors beneficially, does
ot apply to Hindus ; the reason for that rulep
m'»., that the title of an executor to personalty is
derived, not from any gift of the testator, but
from the operation of law incident to the office,
and that, therefore, if the testator had not, di-
rectly or indirectly, declared any purpose towhich
he was to apply it, there was nothing to interfere
with the legal title of the executor — ootexisting
in the case of the executor of a Hindu,
The mere fact that a Hindu testator has made
bequests of special portions of his property to
the heir, will not exclude the heir from the un-
D,gltlzed by GdOgle
DIGEST OF CASES.
E3CECUT0B, ESTATE OB—cmtd.
disposed of residue, or entitle the executors. to
it beneficially. Disherison is not to be labori-
ously spelt out of a will. The intention to
disinherit mast be clear. An executor, who, by
the will, is made an express trustee lor certain
purposes, is, as to the undisposed-of residue, a
trustee, within the scope of § 3 of Act XIV. of
1859, for the heir or heirs of the testator. Lal-
lubkai Bafubhaiv, Manku verbal.. I. I,. Bap.
2 Bom. 888, 1878, 7. B.
EXECUTORS— POWER OF — Act X. ef
1865, J 169—ifortgage—Pouvr of Sale-'] S., an
Englishman domiciled tn India, by his will dated
the 34th of March 1869, charged his real and
personal estate with the payment of his debts,
and appointed his wife S- B., and thtee of fais
children, St., «., and W., his executors. S. died
on the 1st of April 1869, and probate of his will
was granted to all the persons named as execu-
tors. In December 1869, S. E. applied to the
Delhi and London Bank for a loan to discharge
debts incurred in the administration of the
testator's estate, offering to mortgage a portion
of the estate as security. The loan was granted,
a bond to secure the amount being executed by
S. E., R., and W., as executors, and a mortgage
deed of a portion of the estate being executed
by S. E., as executrix. In August 1871, another
bond for the amount due was executed by S. E.,
R., and W., as executors, and by the same per-
sons in the same character a portion of the
testator's estate was mortgaged to secure the
amount due on this bond. By another bond
dated the 30th of July 1874, S. £, R., and W.,
describing themselves as executors, bound them-
selves to pay the Bank Rs. 34,350 and interest.
By a second instrument, duly registered, and
bearing the same date as the bond, the same
persons, under the same description, conveyed
to the manager of the Bank, as security for the
debt created by their bond, all their right, title,
and interest in certaio estates of the testator
known as Rockvllle and Fairy Land ; and in the
event of default of payment of the sum secured
by the bond, they authorized and empowered
the manager of the Bank, his successors or
assigns, absolutely to sell the properties mort-
gaged, either by public auction or by private
sale ; to sign a conveyance or conveyances, and
a receipt or receipts for the consideration-money,
and declared that such conveyance or con-
veyances, receipt or receipts, should be as
valid as if signed by them. By a third instru-
EXECUTOBS— FOVEB OT-amtd.
ment, also duly registered and bearing the
: date, the same persons, under the same
description, constituted the manager of the
Bank for the time being their attorney to sell
the said last .mentioned estates. Default being
made in payment of the bond*debt, by a deed
which recited that at the date of the original
loan M. was resident in England, and had de.
dined to continue acting as executrix, and
which recited the several instruments to which
"eference has been made, C. E. B., described as
nanager of the Bank, in exercise of the power
if sate, and for the purpose of reimbursing the
Bank the moneys advanced by it, granted and
conveyed to the plaintiff the estate called
Rockvitle, and all the estate and interest there-
in of S. E-, R., and W., as executrix and
executors. When the plaintiff endeavoured to
obtain possession she was resisted by the defen-
dant, a son of the testator, and a legatee
under his will. The plaintiff therefore sned
the legatee and executors to establish her
title to the estate, and to recover possession.
The legatee contended that the executors had
no authority to confer a power of sale on the
Bank : — Held, by Pearson and Turner, ]}., that
according to the English law the charge of debts
on the real and personal estate would probably
be sufficient by itself to authorise a sale or
mortgage by the executors for the payment of
debts, and by the same law an executor may
mortgage with a power of sale property which
wholly vests in him, the power of sale given to
the mortgagee not being a delegation of a power
entrusted to the executor, but the creation of a
new power for the benefit of the persons inter-
ested in the mortgage, and, to render the mort-
gage effectual, the right to create that power
being incidental to the authority of the executor
But the present case must be decided by the
law of India as laid down in the Indian Succes-
sion Act X. of 1865. By f 369 of that Act,
executors may dispose of the property of a
deceased person " in snch manner as they think
fit." This language authorises an executor to
execute a mortgage with power of sale, For the
purposes of his office an executor is by the law
of India invested with the same powers of con-
eying a testator's estate as the owner himself
It is bis duty to mortgage or sell the estate
only when there is necessity lor it, but in creat-
Digitized by GoOgle
( HI )
DIGEST OF CASES,
( M8 >
EXECUTORS— POWER OT—centd.
ing a power of sale in a mortgage he does not
delegate the duty imposed on him. The three
Instruments executed on the aoth of July 1874,
must be regarded as parts of the same transac-
tion. The mortgage was intended to be a col-
lateral security for the bond. The power of at-
torney was intended to give effect to the power of
sale in the mortgage. Such a power is simply
auxiliary to the power of sale, and almost
invariably is conferred by the same deed as the
power of sale ; and it is not invalidated by being
created by a separata instrument. The con-
veyance, therefore, to the plaintiff was valid.
By Spankie, J.— The executors were acting
under the authority vested in them by { 269 of
Act X. of 1865, and not under any power of sale
delegated to them as a trust by the testator
relying on the exercise of their own personal
discretion and judgment. The power given by
§ zog of Act X. of 1865 is unqualified. The at-
torney, therefore, in this case could give a valid
title to the plaintiff, acting as he was under an
authority given to him by the executors.
By Stuart, C.J.,— That by the power of at-
torney given by the executors to the manager of
the Delhi and London Bank, they delegated not
only the control of the property and its sale,
but their discretion and the confidence reposed
in them by the will, — thus delegating their
authority and their office, — and in doing so, took
no measures to protect the estate ; all, therefore,
that was done in virtue of that delegation was
illegal, and the sale to the plaintiff was invalid.
Section a€o of Act X. of 1865 did not apply
to the case. It relates solely to a direct dealing
with, or on account of, the estate by the executor
or administrator himself, and not by means of
any delegation to any other person, or by means
of any other intermediary. Skalr v. Brown...
I. It Bop. 1 AIL 710, 1878.
EXECUTORY TRUST— In a Will.
AiwuLB.
C M. Huntkw I. L. Bep. 4
CM. 480.
FROM DUTY— Properly on
which Duty has been paid in England.
Ste Administration 4.
Murch...L L. Bop. 4 Oal. 720.
See Probate Duty. S.
Gladstomi.,,1. L. Sep. 1 Cal.
lew.
EXPOSURE OT INFANT WITH IN-
TENT TO ABANDON.
Set Conviction on lever alChar gee .3 .
Eupresst-. Banni I. L. Bep.
S AIL 849.
EXTENDING TIME FOB APPEAL.
See Act XXVIII. of I860. 1.
Krishnarbddi e. Stuart.. X Xi,
Bop. 1 Had. 193.
See Company- Winding up. 2.
Lalla Bar room v l ». ThhOffi-
cial Liquidator...!. L. Bep.
4 Cal. 704.
EXTENDING TIKE FOB DEPOSIT OF
SECURITY FOB COSTS.
See Security for Costa. 1.
Haiori Bai b. E. 1. Railway Co....
I. L. Bep. 1 All. 687.
EXTENDING TDKE FOB DEFEND ANT
TO APPEAR AND ANSWER
SUMMARY SUIT ON PROMIS-
SORY NOTE.
Set Civil Procedure Code, Act X. of
1877, i 632.
Groom e. Wilson.,. I. L, Bep. 3
Cal. 539.
EXTINGUISHMENT OF DEBT-Limi-
tation Act XIV. of 1859— Suit for Fore.
closure— Act IX. of 1871, § 149.
See Li nutation. 17.
Ramchundsr v. Juooutmonho.
hinby 1. 1. Bep. 4 Oal.
288.
EXTINGUISHMENT OF BIGHT OF 00-
CUPANCY— Non-Payment of Rent— Snomer-
gence of LandT\ Land, formerly in the occupa-
tion of tenants, and as to which they had ac-
quired a right of occupancy, were completely
submerged for a number of years, and during
such submergence no rent was paid or demand-
ed in respect of the submerged lands, nor was
there any express surrender of (he lands by the
tenants, nor did the landlords in any form re-
enter on the lands. On the re-formation of the
lands, the tenants resumed possession of them,
and when called upon by the landlord to enter
into new agreements with him, refused to do so,
and stood on their right to retain possession as
occupancy ryots i —
Held, that the statutory right of occupancy was
one which was to be maintained by regular and
by Google
( MS )
DIGEST OF CASES.
( *** )
BBH MO U ISMMMMT COP BIGHT OF
OCCUP ANCY- -could.
punctual payment of the rent payable. When
tenants desire 10 rely on a valuable right, such
as a right ofoccupacy, they are bound to observe
the conditions on which the maintenance of that
right depends, and if the tenants desired to
maintain their rights of occupancy, they ought
to have paid something in theahape of rent It
was not sufficient foi them to say that they were
ready to pay their rent, or that the landlord
should have sued them for it, and that if sued
they would have paid at once. Not having paid
any rent during the period of submergence, they
had given up the possible advantage which they
might derive on the re-formation of the lands.
Hemnath Dutt v. Ashoub Slkdar. Jackson
and McDonnell, JJ I. L. Rop. 4 Cal. 894,
1879.
EXTORTIONATE BARGAIN -Relief
See the cases under Unconscionable
Bargain,
EXTRADITION.
Sec Criminal Procedure Code, Act
X. of 1872, SW7.
Rao. r. Locha I. L. Rep. 1
Bom. 840.
EXTRAORDINARY JURISDICTION.
Sec the cases collected under Stat 34
and 25 Vict, 01. 104, § 15,
and the [ndei heading Superin-
tendence of the High Court,
EXTRAORDINARY FLOOD- -Damage
caused by.
Sec Tanks— Zemindar's Liability
for Damage caused by.
Madras Railway Co. v. Zemindar
of Carvatbkagaram L.
Rep. 1 1. A. 864.
EX-pARTE DECREE.
Sec Judgment ex-parte.
— Act XI. of i$6s, § 21— Nonappearance of
Defendant's Pleader.
See Judgment ex-parte. 1.
Dayal Misree v. Kupfoorchohd.
L L. Rep. 4 CM. 818.
EX-PARTE DECREE— c«*id,
Against Defendant not appearing at Ad-
journed Hearing.
See Ctvil Procedure Code, Act VDX
oflBTO, §119.1.
Zaih-ul-Abdin Khjh v. Ahmad
Raza Khah....L L. Rep. 2
AIL 67 1 L. Rep SLA
S33.
Appeal from— and Order refusing to set
Sec Appeal-Civil. 9. 8.
Lacbhidas *. Ebrakim L L,
Rep. 2 Bom. 644.
GOLAB SlHOH V. LaCRMAH Das...
X. IV Rep. 1 All. 748,
Sec Civil Procedure Code, Act VTH.
of 1869, ( 118.1.
Zaik-ul-Abdik Khan v. Ahmad
Raea Khan. ..I. L. Rep. 3
AIL 67; L. Rep. ALA.
833.
Effect of — Admissibility in Evidences
See Judgement ex-parte. 3.
Birchuhder v. Hurrish Chun-
dbr...Z. L. Rep. 8 Cal. 388.
■ Limitation for Execution of — Appeal from
Order refusing to set aside.
See limitation. 87.
Shbo Prasad v. Ankudh Singh...
L L. Rep. 3 AIL 378.
— Limitation for Execution of.
See Limitation. 67.
Prosonno Chundeb v. Prossono
C00HAR...L L. Rep, 3 CaL
133.
—— Refusal to Receive Written Statement as
not filed in Time — Issues framed in pre.
sence of Defendant's Pleader who cross-
examined Witnesses — Decree passed
thereafter is not an. ,
Sec Judgement ex-parte. 8.
Ragkapa e. PARAPA...L I*. Rep.
1 Bom. 317.
In Regular Appeal — Appeal from— by Re-
spondent.
Sec Appeal— Civil. 6.
1 Kali Kishorb.v. Djhununjov.,.1,
L. Rep. 8 Cal. 33S-
DigitizsdbyGOO^Ie
DIGEST OF CASES.
(
)
EX PABTE DECBEE-«»M.
Rehearing granted after Expiration of
Time limited by Law—Special Appeal.
See Civil Procedure Code, Act V11L
of 1869, §119. 3.
Runglall Misses v. Tokiiun
Mi3sek...I. L. Eop. 3 CaL
114.
EX-FBOPBTETABY TENANT.
■ Right of— to hold Sir Lands.
See Act XVUL of 1873, § 7.
Bakhat Rah i. Wazir All. I. L.
Hep. 1 All, 448.
B hag wan Singh v. Murli Singh.
Ibid. 469.
FABRICATING FALSE EVtDHNCE-
And voluntarily Assisting in Concealing
Stolen Properly.
See Conviction on several Charges.
3.
Empress v. Rawbshar Rai...L L.
Sep. 1 AIL 879.
la Attempt — Abatement— Penal Code,
H "93. S"] *■ instigated Z. to personate C,
and to purthase in C.'s name a certain stamped
paper, in consequence of which the vendor of
the stamped paper endorsed C.'s name upon it
as the purchaser, if. acted with the intention
that such endorsement should be used against
C. in a judicial proceeding :
Held, that the offence of fabricating false
evidence had been completed, and that M. was
properly convicted of abetment thereof. Em-
press v. Mula. Turner, J..X L. Hep. 1 AIL
106, 1879.
FALSE CHABUE.
See Penal Code, § 311. 1. 9.
Empress v. Aeiul Hasan... I. L.
Hep. 1 AIL 497.
Empress v. Salik Ibid. 627.
-^Criminal Intimidation by Threat to bring —
Conviction of — Security to keep the
Peace.
See Criminal Procedure Code, Act
X. of 1873, J 489. 3.
Empress v. Raghuba—L L.Bep.
8 AIL 361.
FALSE BVTSBNCB— Abetment of — Pre-
sumption as to.
Set Criminal Procedure Code, Act
X. of 1873, §471.
Reg. v. Batjoo LALL...L L. Bep.
I Cal. 460.
Charge — Vagueness.
See Criminal Procedure Code, Act
X. of 1873, i 471.3.
Rio- v. Bajjoo Lall...I L.Bep.
1 Cal. 460.
Jurisdiction to try for — of Court before
which the— was given.
See Criminal Procedure Cede, Act
X Of 1873, , 471. 1, and i
473. 1. 3. 3.
Reg. v. Kultaran Singh. ..I. L.
Bep. 1 AIL 139.
Reg. v. Jagat Mal Ibid. 163.
Reg. v- Gur Baksh ..Ibid. 193.
Reg. «. Kashmiri Lai.. .Ibid. 036.
Anon.,.1. L. Bep. 1 Had. 306.
Order sending case to Magistrate to in-
quire into Offence of.
See Criminal Procedure Code, Act
X. of 1873, i 471.1.3.
Reg. b. Bauoo Lall.. 1. L. Bep.
1 CaL 460.
Criminal Procedure Code (Act X. of i8ja)
§ 473-] The offence of giving false evidence is " an
offence committed in contempt of the authority"
of a Court, witbin the meaning of f 473 of the
Criminal Procedure Code (Act X. of 1872).
Reg. v. Kultaran Singh (I. L. Rep. I AIL iao)
and Reg. v. Jagat Mal (ibid. l6z) dissented
When an accused was committed by a Magis-
trate, First Class, for trial by the Session Court,
on a charge of having given false evidence in a
judicial proceeding before the Sessions Judge,
there being no Assistant or Joint Sessions
Held, that the case must be transferred to
another Court of Session for trial, as the com-
mitment could not be quashed, there being ro
In such a case as the above, it would be better
for tbe Magistrate to try the case himself, and if
the sentence which he is competent to pasa-is
Digitized byGOOC^Ie
( M7 )
DIGEST OF CASES.
( 6i8 )
FALSE EVIDEWCB— co*td.
insufficient, the Sessions Judge should refer the
case to the High Court (or enhancement of sen-
tence. Reo. v. Gajf. Mfetmll and N. Horrid*!,
JJ L L. Bop. 1 Bom. 811, 1876.
FAMILY ABBANOEKBHT— Adoption-
Gift to Widow for Life.
See Hindu Law— Alienation of
Widow. 1.
MUSST.BKAGBUmDAUr.CdOW-
DST BHOUANATK THAKOOR...
L. Bop. 2 L A. 26H.
FAMILY OTTSTOK— Primogeniture.
See Hindu Law— Inheritance—
P rimogeni tare.
Chowdhrv Chintamun Singh r.
Mussr. Nowlukho Konwari.
L. Bep. 8 L A. 863 ; I. L.
Hep.lCaL
— Bengal Segtdatiem XI. of 1 703
X. of l%aty~-Disa>Htinuanc6 of Family (iilsn.1
In a suit to recover possession of an estate by
virtue of an alleged family custom that the estate
was descendible on the eldest son totheexclu
of the other sons, and by which the estate
impartible and inalienable, there was evidence
which led reasonably to the belief that formerly
the estate was held, from time to time, by indi-
vidual male members of the family; but the
evidence left in obscurity the character and
nature of the estate, and the tenure by which it
was held under Mahomedan rule.
Certain documents were filed in the suit, as to
which their Lordships saidi that if they could be
relied upon, they pointed to the conclusion that
the estate was held under theMahomedan rulers
as a jagir on the tenure of military service,
by virtue of grants made from time to time to
individual members of the family, and was not
strictly an inheritable estate. If, on the other
hand, they could not be relied on, then, as above
mentioned, the original character of the estate,
the nature and conditions of the tenure, were left
altogether in doubt ; but there was admittedly a
settlement of it by the Government at the time
of the perpetual settlement : —
Held, that upon that settlement, any incidents
of the old tenure, as a military jagir, requiring
the render of services, if any such ever existed,
wore, as conditions of tenure, impliedly at an
FAULT Crrj8T0K-o*wtf .
end ; and that the temindari, so far as related
to tenure, was thenceforth held under the
Government as an ordinary seraimLm free from
any such conditions. The settlement would
not, however, of itself have operated to destroy
a family usage regulating the manner of de-
scent. It would not have had this effect in the
case of a well-established raj; and even in the
case where the origin could not f>c shown, it
might be assumed that it would not, of itself,
affect an existing family custom.
Held also, without giving any opinion on the
effect of Bengal Reg. XI. of 179.!. that there was
sufficient ground for the presumption that after
the settlement and that Regulation, the family
were induced to regard the former state of
things and the ancient tenures, whatever they
were, as at an end, and to consider and treat
the property as an ordinary estate under the
British Government. Their acts showed that
in fact they did so consider and treat it, and
that they did not regard the manner of succes-
sion, if it ever prevailed, in the light of a family
custom, but as an incident or condition of tenure
which had been determined by the settlement,
and consequently assumed that thenceforth the
succession would conform to the ordinary law.
Their conduct, indeed, went far to disprove that
a family custom, properly so-called, ever exist-
ed; but, assuming it to have once existed, it
was of a nature which could, without the sane,
tion of Government and without any violation
of the law, be put an end to, and was in fact
discontinued.
There is no principle or authority for holding
that in point of taw a manner of descent of an
ordinary estate, depending solely 00 family
usage, may not be discontinued, so as to let in
the ordinary law of succession. Such family
usages are in their nature different from a ter-
ritorial custom, which is the lex loci binding all
persons within the local limits in which it pre-
vails. It is of the essence of family usages that
they should be certain, invariable, and conti-
nuous, and well established discontinuance
must beheld to destroy them. This would be so
when the discontinuance has arisen from acci-
dental causes ; and the effect cannot be less when
has been intentionally brought about by the
concurrent will of the family. Rajkishen Singh
Ram Joy Surma MozooudaR—L L. Bop. 1
Cat. 186, 1878 ; 18 W. B. 8 P. 0.
D,gltlzed by G00gle
( 649 )
DIGEST OF CASES.
(
)
FAMILY HOUSE -Mortgage of.
See Hindu Law — Alienation of
1 Ancestral Property. 1.
Bhikham Das e. Pura I. L.
Rep. 2 All. 141.
Sale of — in Execution of Decree of Mort-
gage-
See Hindu Law — Alienation of
Ancestral Property. 1.
Bhikham Das v. Pura I. L.
Sep. a AIL 141.
i N on -Reside nee in — by Hindu Widow does
not disentitle her to Maintenance.
See Hindu Law — Maintenance of
Widow. 3.3.?.
Rango Venayak o- Yamunabai...
I. L. Hep, 3 Bom. 44.
Kasturbai si. Shivajiram.. Ihid.
373.
Narayanrao b. Ramahai L.
Rep, 6 I, A. 114 ; I. L.
Rep. 3 Bom. 415.
Widow's Right of Residence in.
See Hindu Law—Widow's Bight
of Residence In Family
Gauki si. Chandrahani I. L.
Rep. 1 All. sea.
FARM OF TOLLS— Contract of— not under
Seal of Commissioners.
&e Madras Act III. of 1871. 3.
Goodrich i. Vekkanna...I, L.
Sep. 2 Mad. 104.
FEES— Of Village Priest.
See Eight to Sue. 13.
DlNANATH u. SADASHIV...I. L.
Sep. 3 Bom. 9.
FEW ALE— Right of— to succeed to Shebait-
See Hindu Law— Adoption. S.
Jahokee Debee v. Gopal Achar-
ju.-.X. L. Sep. 3 Cal. 365.
FERIIY — Lease of Government — Covenant
not to assign or underlet— Admission of
See Illegal Contract.
Gaurt Shankar v. Mumtaz Am
Khan... I. L. Hep. 3 All.
Sec Madras Act VTLT. of 1865, f 1.
ZlMUUBDIM 0. VlJIAN I. L.
Rep. 1 Had. 49.
FATHER'S SISTER'S SON, RIGHT OF,
TO INHERIT.
See Hindu Law — Inheritance —
Father's Bister's Son.
Thakoor JEEBKATHb. The Couet
of Wards. . .L. Rep. 2 I. A.
lea
FEE— Pleader's— Pre-emption Suit— Costs as
between Party and Party.
See Pleader's Fees.
Dot Singh v, BhupSingh...I. L.
Rep. 1 All. 709.
- Public— Plying Boats near.
See Criminal Trespass. 2.
MUTHRA SJ. JAWAH1R...L L.Rep.
1 All. 527.
FERRY RIGHTS— Infringement of— Right
to restrain a Party starting a Second Ferry.] A.,
the owner of a ferry granted him under a Go-
vernment settlement, brought a suit to restrain
B. from running another ferry over the same
spot where A.'s ferry plied for hire. It appear-
ed that B. levied no tolls on bis ferry, but it was
sot shown that it was used only for the con-
•eyance of his own servants and ryots : — Held,
that the suit was maintainable. It is too late to
itend that in the Courts of this country a
zemindar cannot have such a right of ferry
arising out of a grant of settlement, as that the
infringement of that right, by reason of the
establishment of another ferry at a short dis-
i from it, will not give a right of action.
Luciimessur Singh o. Leelanand Singh.
Jackson and Tottenham,]]...!. L. Rep. 4 Cal.
599 ; 3 Cal. Rep. 427, 1878.
FIERI FACIAS, WRIT OF— Sale of Mort-
gagor's Interest under — obtained by
Mortgagee — Right of Purchaser.
Sec Mortgage. 5.
Tukaram v. Ramchandra.. , L L.
Rep. 1 Bom. 814.
Sec Sheriffs Sale. 3.
Bhuggobutty v. Shamachurn.
X L. Rep. 1 CaL 337.
D,gltlzed by G00gle
( Ml )
DIGEST OF CASES.
( E5B )
FINAL DECREE.
See Pre-emption. 8. 8.
Hingah Khan 9. Ganga Par-
shad L L. Hep. 1 AIL
FINAL DECREE OF APPELLATE
COUBT.
Sec Limitation. 69. 76.
UHIASHAKKAKir CHOTALAL...LL.
Rep. 1 Bom. 18.
Imam Au v- Dasaundhi Rah...
I. L. Rep. 1 All. SOS.
FINALITY OF ORDER ADMITTING
REVIEW.
See Review. 2.
Rqy Megijraj ii. Beejov Govjhd
Burkal...L L. Rep, 1 CaL
187.
FINE— Refund of—on Quashing Conviction,
Sec High Court Criminal Proce-
dare Code, Act X. of 1875,
§ 147. a
Req.p. Hadjee Jeebun Bux...L
L. Rep.jl CaL 364.
FIRE — Exception of Liability for Loss by-
Bill of Lading.
See Bill of Lading.
Chin Hong & Co. v. Seng M
& Co.,.1, L. Rep. 4 CaL
786.
See Jalkar.
- Public River—Exclusive Right— Infringe-
See Criminal Trespass. 8.
Empress v. Chahn Nakyiah...I.
L. Rep. 2 CaL 304.
- Right of— in Public Navigable Rivers.
Set Bight of Fishery In Public
Navigable Rivera.
Pros un no Coomar o. Ram Coo.
MAK...LL.Rep.4Cal.63.
- Right of— in the Sea.
See Right of Fishing in the Sea.
Badak 3. Naou...L L. Bep. 3
Bom. 18.
" FIXED RENT "—Act X. of 1859, | iS.
See Enhancement of Bent. 2. 3.
HuRRONATH V. GOBIND CtlllllDER..
L, Bep. SLA. 183.
Meer Mahomed Hossein v.
Forbes.. .L. Rep. 9 L A. I.
Right of Mirasdar to hold at a-
See Miraa. 1. S.
Babajiv. Narayan...L L. Bep.
3 Bom. 840.
Vishnu bhut o. Babaji Ibid.
845, n.
Sec Enhancement of Bent, 0.
Parsotah Keshavoas J- Kalvan
Ravji.L L. Bep. 3 Bom.
848.
FIXTURES— Gouds and Gkattels—Sale of Oil
and Flour Mills and Engine in Execution 0/
Decree of Small Cause Court."] Oil and flour
mills and a steam engine and boiler, and other
accessory machinery by which the mills are
worked, are fixtures, and not " goods and chat-
tels " within the meaning of § 58 of Act IX. of
1850, and cannot, therefore, be taken in execu-
of a decree of a Small Cause Court, Such
fixtures are trade fixtures, and such as according
to the English law a tenant might remove as
against bis landlord, but the question whether
fixtures are removeable by a tenant as against his
landlord, has nothing to do with the question
whether they are seizable in execution. Miller
Brindabun. Wilson, J, ..I. L. Bep. 4 Cat.
646; 4 Cal. Bep. 460, 1870.
FLOW OF WATER— Right to.
See Artificial Watercourse.
Ramesburb. Koonj Bbharrt...
L. Bep. 6 I. A. 33; L.
Bep. 4 App. 0a. 131 ; L
L. Bep. 4 CaL 633.
See Easement. 4.
Morgans. Kirbv...LL. Bep. 3
Had. 46.
See Biparian Proprietors.
Kali Kiskbn «. Jadav Lal...L.
Bep. SLA. 190.
FORECLOSURE— Of Conditional Sale— Ei-
feet of.
See Hindu Law— Ancestral Pro-
perty.
Sham Narain 9- Rughooburdyal.
I. L. Rep. 3 Cal. 508.
Digitized byGOO^Ie
DIGEST OF CASES.
( 564 )
FORECLOSURE - -contd.
- Of First of two Mortgages of s;
"ty to same Mortgagee— Merger.
Set Mortgage. 10.
Kauprosonno v- Kamini Soon-
duri I. L. Rep. 4 Cal.
475.
- jurisdiction— Mortgage of Lands partly in
Oudh and partly in N.-W. P.
Set Mortgage. 24,
SlTRJAN SlNOH V. JAOAN NATH
Singh I. L. Rep, 3 All.
313.
- Limitation to Suit for.
See Assignment of Mortgage.
Ganpat v Adarji...I. L. Rep. 3
Bom. 313.
Sec Limitation. 17.
Rauchandra v. Juggutmoxmo-
hinrv I. L. Bop. 4 Cal.
383.
- Notice of — Right of Second Mortgagee to.
See Beng. Reg. XVII. of 1800, § 8.
Dirgaj Singh v. Debi Singh... I.
L. Rep. 1 AIL 408.
- by One of several Joint Mortgagees.
See Mortgage. 17.
Bis Han Dial jj, MaNni Rah... I. lb
Bop. 1 AIL 387.
- Re-opening.
See Mortgage. 10
Kalifrosonno 9. Kamini Soon.
duri Z. L. Bep. 4 Cal.
475.
See Mortgage. 13. 14.
NoKBNDER NARAIN e. DWAKKA I.AL
L. Rep. 5L A. 18; B.C. L
L. Rep. 3 Cal. 387.
Bank of Hindustan-, Sec. c. Sho-
ROSHIBALA DkIIEB L Id.
Bep. 2 Cal. 811.
Suit for-barred by Act XIV. of 1859— Act
IX. of 1871,5 149.
See Limitation. 17.
RAMCHUNDGR s. JUGGUTHONMOHI-
NEV...I. L. Bep. 4 Cal. 383.
FOREIGN COURT— Jurisdiction of— in re-
spect of Bill of Exchange drawn within its
Jurisdiction by British Subject neither
Resident nor Domiciled therein in Favour
of Creditor Resident therein.
See Jurisdiction. 7.
Mathappav. Chbllappa... I. L.
Bep. 1 Mad. 186.
FOREIGN JUDGMENT— Suit on.
See Jurisdiction. 7.
MaTHAPPA v. CHELLAPPA...I L.
Bep. 1 Had. 180.
FOREIGN JURISDICTION AND EX-
TRADITION ACT.
See Act XI. Of 1873.
FOREIGN TERRITORY- Bill of Exchange
drawn in— by British Subject neither Re-
sident nor Domiciled therein, in Favour
of Creditor Resident therein — Jurisdiction
of Foreign Court.
See Jurisdiction. 7.
Mathappa ». Chbllappa., ,L L.
Bep. 1 Mad. 186.
FOREIGN TERRITORY — OFFJSNCE
COMMITTED IN— Jurisdiction of
British Courts.
See Criminal Procedure Code, Act
X. of 1872, i 07. 1. 3.
Reg. v. Adiwgadu ..I. I* Bep. 1
Mad. 171.
Reg. i. Lakhva...L L. Bep. 1
Bom. 60.
Sec Criminal Procedure Code, Act
X. of 1872, J157.
Reg. v. I.OCHA...I. L, Rep. 1
Bom. 340.
See Offence committed at Cyprus.
Empress i. Sarmuku Singh. ..I.
L. Rep. 2 ALL 318.
See Offence committed in Foreign
Territory.
Empress o. Dossaji...I. L. Rep.
3 Bom. 334.
FOREIGN TERRITORY - WARRANT
ISSUED IN.
See Criminal Procedure Code, Act
X. of 1878, f 167.
Reg. v. Loch a ..L L. Rep. 1
Bom. 340.
Digitized by G00gle
( SS5 )
DIGEST OF CASES.
( 658 )
FORFEITURE — Suit for Cancelmcnt of
Least — Breach of Conditions — Cancelment of
Lease — Perpetual Lease — Payment of Rent to
Collector— Failure to fay Instalments of Rent-
Sinking Wells and Planting Trees.]— The plain-
tiff, the representative in title of a lessor, sued
under CI. c, 5 93 of Ad XIII. of 1873, for the
cancelment of a lease, on three grounds, vis.,
(1) that the lessees had paid the rent to the
Collector, on account of the revenue due in res-
pect of the estate, instead of to him ; (2) that
they had failed to pay certain instalments of
rent on the due dates ; and {3) that they had
planted trees and sunk wells, and allowed their
tenants to do the same, without the lessor's con-
sent ; thereby committing breaches of the con.
ditioas of the lease involving its forfeiture 1 —
Held, on the construction of the lease, that a>
it was intended to be perpetual, and as the rent
had been paid to the Collector for many years
underan arrangement between the parties to the
lease, and it was not shown that the plaintift
had repudiated this arrangement or demanded
payment of the rent directly to himself, pay.
ment of rent by the lessees to the Collector did
not amount to a breach of the conditions of the
lease; and that the lease being intended to be
perpetual, and no arrears of rent being due,
irregularity and un punctuality in the payment
of the instalments of rent in question were not
breaches of the conditions of the lease involving
its forfeiture ; and that the condition as to the
planting of trees and sinking wells being merely
a prohibition, and not a condition the breach of
which involved the forfeiture of the lease, the
tease could not be cancelled because the lessees
had planted trees and sunk wells, and allowed
their tenants to do the same, without the lessor's
consent.
Held also, that, assuming that the lessor was
entitled on this last ground to claim forfeiture,
according to the Full Bench ruling in Sheo Churn
v. Bussunt Singh (H. C. Rep. N. W. P„ 1871,
p. 282), forfeiture is not to be deemed the invari-
able penalty for breach of contract occasioned
by the construction of a well, or improvement of
a tenant's holding. -AblaKH Rai v. Salim Ah.
had Khan. Stuart, C.J., and Spankie, J.. XL.
Rep. 9 All. 437, 1879.
FORFEITURE OF HINDU WIDOWS
ESTATE.
See Hindu Law— Forfeiture of Wi-
dow's Estate.
Prag Das v. Hari Kishen...I L.
Rep. 1 All. (303.
FORFEITURE OF HINDU WIDOWS
ESTATE tentd.
Incontinence does not create — once vested.
See Hindu Law— Inheritance of
Widow. 1.
Nbhalo v. Kishbn Lal.,,1. L>
Bop. 8 All. 1 SO.
See Hindu Law— Disqualification
to inherit. 8. 4. 7.
Musst. Ganga Jati*. Ghasita.
LL. Rep 9 All. 46.
Bhavani *. MAHTAB Khar...
Ibid. 171.
HOHAHA V. T1BASBHAT...I. It.
Rep. 1 Bom. 509.
FORFEITURE OF RECOGNIZANCE—
Cross. Examination of Witnesses on Pro.
See Criminal Procedure Code, Act
X of 1872, j 602.
Empress «. No bin Ch under
Dutt...I. It, Rep. 4 CaL
865.
FORGED CERTD7ICATE OF REQUISI-
TION FOR AN ADVANCE OF
MONET— Money paid under— Suit to
See Contract 11.
Shugah Chand v. Government
of N. W. Provinces ... I. L.
Sep. 1 All. 79.
FORGERY- Suit to have a Deed declared a.
See Limitation. 88.
Fakharoodeen Mahomei>Ahsan
c. P000SK...I. L. Rep. 4
Cal. 309.
FORMAL POSSESSION— Delivery of— in
Execution of Decree.
See Limitation. 13. 29.
Koonjo Mohun Das v. Now
Coouar Shaha.-X L. Rep.
4 Cal. 216.
Uubicka Churn Goopta ». Ma.
dhub Ghosai.. ..Djid. 870.
FORMER JUDGMENTS AND DE-
CREES—Effect of.
Sec Evidence. 1.
Narranji Bhikabhai v. Dip a
UMeD...I.L.Rep.3Bom, 3.
,zed by Google
( 667 )
DIGEST OF CASES.
( 668 )
FRAMING ISSUES— Duty of Judge.
Sea Issues. 1.
Afava o. Raha L L. Rep. a
Bom. 210,
FRAUD.
See Limitation. 59.
Chundee Nath v. Tirthanund.
I. L. Hep. 3 Cal. 604.
Collusive Conveyance in — of Third Persons
— Denial by Grantee of Trust for Grantor
— Right of Grantor to show real Nature
of Transaction.
See Estoppel. 6."
Param Sinch v. Lalji Mal...I,
L. Hep. 1 All. 403.
FREE PASTURAGE— Right of.
Set Bight of Free Pasturage.
Collector of Thana b. Bal
Patbl...I. L, Hep. 3 Bom.
110.
FBESH EVIDENCE— Revival of Prosecu-
tion of Persons Discharged without-
Illegal.
See the cases under Revival of Pro-
secution.
PROCLAMATION OF BALE
NECESSARY— On Adjournment ol
Sale in Execution of Decree.
See Sale in Execution of Decree. 8.
Gofee Nath v. Roy Lachmipat...
Z. L. Rep. S CaJ. 643.
On Release from Attachment of Part of
Property before Sale.
Set Sale in Execution of Decree. 11.
1 Shib Prokash o. Sardar Dayal.
L L. Rep. S Cal, M4.
FRESH SUMMONS— Limitation.
See Practice— Civil. 3,
Rah kiss en ii. Luckey Narain..
L L. Rep. 8 CaL 813.
FULL BENCH— Reference to— Conflict of
Opinion between Individual Judges no
Ground for.
See Reference to Full Bench.
Raj Koohar Singh s. Sahebzada
Roy ..I. L. Rep. 3 Cal. 30.
FURLOUGH.
Set Criminal Procedure Code, Act
3C. of 1873, § 66.
PUBSOOBAMBOROOAH...I.L.BOP.
3 Cal 117.
GAMBLING— Bengal Act II. of 1867, § 5—
Unauthcrited Entry and Arrest-Evidence.]
Where a Police Officer, unauthorized by a Ma-
gistrate or District Superintendent of Police
enters and searchesan alleged gaming-house, and
arrests persons found therein, a Magistrate is
justified in convicting such persons, if it is prov.
ed by independent direct evidence that the
house is a gaming-house. In the absence of
such evidence that the house which was entered
and searched was a gaming-house within the
meaning of the Act, it cannot be be presumed to
be so under f 6 of the Act, because that pre-
sumption only arises when the proceedings are
authorized by the preceding section. Nazir
Khanb-ProladhDulta. Jackson, CJ.(Offg.)
and McDonnell, J L L. Bop. 4 Cat. 689,
1878.
Beng. Act II. of 1867, Ji 5, 6— Unau.
tkarited Entry and Arrest.) A Deputy Inspector
of Police is not authorized to enter and search an
alleged gaming-house, unless he has received
authority to do so from a Magistrate or a District
Superintendent of Police. Where such an
unauthorized entry and subsequent arrest of
persons found gambling in at> alleged gaming-
house takes place, there being no evidence that
red and searched w
a gaming-
house within the meaning of the Act, a Magisti
has no evidence before him on which he can
The evidence required cannot be presumed
under , 6 of the Act, because that presumption
ly arises when the proceedings are authorized
°y § 5- Sriram Chandra Lbrkan b. Bipindas.
Mitter and McDonnell,]] I. L. Rep. 4 Cal.
710, 1870.
GENERAL RESIDUARY BEQUEST.
See Will. 7.
DWARKANATH V. BURRODA PERSAD.
L L. Rep. 4 CaL 443.
GHATWALI TENURE— Grants prior to
Permanent Settlement—Dependent Taluks — Ben-
gal Reg. VIII. of 1793, j 51— Enhancement of
Rent — Limitation.] In a suit brought to recover
rs of rent in respect of certain gkatnali
by Google
(
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DIGEST OF CASES-
(
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GHATWALI TENUBE— contd.
taluks situated within the plaintiff's zemindary,
and to have his right declared to enhance the
tents of the same, ata rate which the Court n
think fit, as an equivalent for the gkat-aaliser
which had been rendered unnecessary through
the agency of Government, it appeared that the
defendants and their ancestors had held posses-
sion of the taluks in question under grants
made prior to the permanent settlement at I
fixed rent, on ghat-mali tenure, one of the condi
tions of which was that the defendants should
provide a certain number of armed men, to watch
the ghats and chowlties, &c. In 1863, the Gov-
ernment dispensed with the services on condition
of the zemindar paying to Government a certain
fixed annual permanent rent. The zemindar
thereupon instituted suits against the respective
holders aigkatxali tenures within his zemindary,
and amongst them, against the present defend-
ants, to recover possession of those tenures, on
the ground that the services, in consideration of
which tbey were held, were no longer required.
These suits were decided against the zemindar
by the Courts in India, and those decisions wer
confirmed on appeal by the Privy Council i
■«73-
The plaintiff then instituted the present sui
for arrears of rent, and for a declaration of hi
right to enhance the rent of the defendant'
taluk :—
Held, (1) that the present suit was not barred
by either § a or § 7 of Act VIII. of 1859, by
son of the former proceedings for resumption of
the defendant's tenure.
(2). That the plaintiff's claim for arrea
rent was barred by limitation, except so much of
it as related to the rent of the three years pi
n of the suit.
(3). That the plaintiff was not entitled to
enhance the rent of the gkatTDols, the defendants.
Tbey were ready and willing to fulfil the obliga-
tions of their sanads as between them and the
plaintiff, and it was not because the plaintiff had
thought fit to compound the ghaVaaii services
with the Government, without the defendants'
consent, that the plaintiff had any right to
change the terms of the defendants' tenure. So
long as the defendants were ready and willing to
perform the services, the zemindar had no right
to put an end to the tenure, whether the services
were required or not.
(4). Even supposing the rent reserved by the
sanads weieof such a nature as would be liable to
QHATWALI TENURE-™*; j.
enhancement, the defendants were protected from
enhancement by f 51 of Bengal Reg. VIII. of
1793, being dependent talukdars within the
meaning of that Regulation, any variation in the
number of men to be provided and maintained
by the defendants, in accordance with the condi-
tion of their sanads, not being an abatement of
the defendants ' jama within the meaning of § 51.
Ghatwali tenures were created bj the Mafao-
medan Government in early times, as a means
of providing a police and military force, to watch
and guard the mountain passes from the inva-
sion of the lawless tribes who inhabited the bill
districts. Large grants of land were made in
those days by the Government, often to persons
of high rank, at a low rent, or at no rent at all,
on condition that they should provide and main-
tain a sufficient military force to protect the
inhabitants of the plains from these lawless
incursions; and the grantees on their part sub-
divided and re.granted the lands to other tenants
(much in the same way as military tenures were
created in England in the feudal age), each of
whom, besides paying generally a small rent,
held his land in consideration of these military
services, and provided (each according to the
extent of his holding) a specified number of
armed men to fulfil the requirements of the
Government. Leelanund Singh Bahadoor*.
ThakoohMunrunjun Singh. Garth, C.J ., and
McDonnell,] I. L. Kep.SCaL 351, 1877,
OUT.
See Hindu Law Gift ; H&home-
d&n Law— Gift.
— Deed of— unaccompanied by Possession.
Sea Mtthomedan Law. 3.
Ranee Kkujookoomssa. c Musst.
Roushah J eh an... L. Bep. 8
X. A. 291 ; L L. Bep. SOaL
184.
Of Defined Share in a Landed Estate-
Valid.
See Mahomedan Law— Gift. 1.
JlVAN BAXSH*. Imtiaz BEGAM...
I. L. Bep. 3 AIL 98.
Of Definite Share of Zemindary.
Set Kahomedanliaw— Gift. 8.
Ambekoonissa T. Abedoonissa...
L. Bep. il I, A. 87.
Digitized byGOO^Ie
DIGEST OF CASES.
< M» )
QOT-miM
By Father to Daughter— Soudayaic
See Hindu Law— Alienation by
Widow. 2.
Madhayaraya *. TlBTHA Si
I. L. Rep. 1 Mad. 307.
By Father or Guardian to a Minor.
Ste Hahomedan Law— Gift. 3.
Ahbbroonissa Khatoon ». i
doonissa Khatoon L.
Bap. 8 LA. I
By Hindu during his Lifetime of all
Estate — Liability of Donee to maintain
Donor's Widow.
Sec Hindu Law— Maintenance of
Widow. 17.
Jahna v. Machul Saetu...I. L.
Bep. 9 AIL 315.
By Hindu Widow.
Set Hindu Law— Gift. 3-
Rudr Nahain Sing » Ruf Koab.
L L. Bep. 1 AIL 734.
- By Hindu Widow of Sotidayakam.
Set Hindu Law— Alienation by
Widow. 8.
Madhayaraya v. Tirtha Sam....
I. L. Bep. 1 Had.
807.
■ Immoral Consideration.
SwQift.
Of Immoveable Separate Property by
Hindu Husband to Wife.
Set Hindu Law— Gift. 3.
Rutut Naraik Sinov. Rup Kuar.
I. L. Bep. 1 All. 734.
Of JfwtU.
See Hahomedan Law— Gift. 1. S.
Amreroonksa Khatoon v. Abe.
doonissa Khatoon L.
Bop. 2 I. A. 87.
Jivan Baksh t. IhtiazBbodm
11. Bep. 3 AIL 83.
Immoral Cotiiideratioti.~] Id 187O H.
made a gift of certain immoveable property to
W,, who was his mistress, but lived with him as
his wife, " on condition of her continuing to be
his wife and remaining obedient to
husband." W. took possession of the property
under the gift, aad held it for eight yean, when
GIFT— cantd.
a creditor of //., under a decree enforcing a
debt contracted by H. subsequently to the gift,
sued, amongst other things, for a declaration
that the gift was invalid, as it had been made for
an illegal consideration, w., the future coha-
bitation of W. and H. -.—
Held that, assuming that the consideration for
the gift was illegal, in the absence of fraud, the
gift could not be set aside so many years after
W. had acquired possession thereunder. Ayerst
v. Jeniins (L. Rep. 16 Eq. 375) followed.
Lachmi Narain v. Wilayti Begam. Spankie
and Oldfield, JJ...L L. Bep. SAIL 433, 1879.
GIFT TO A., HIS CHILDREN AND
GRANDCHILDREN, CONFESS
ABSOLUTS ESTATE.
See Grant of Talook.
Boob on Mohini «. Harrtsh
Ch under ... L. Rep. S I. A.
13SjLL.Bep.4 0al.23.
GIFT TO A CLASS— Lapsed Bequest— Qua-
lifications applicable to Original Share
not extended to Accrued Share in absence
of neceessary Implication.
See Will 5.
Masbvk *. FERGU5SON...I. L.
Bep. 4C&1. 670.
Postponement of Period of Distribution —
Members of Class born after Testator's
Death and before Period of Distribution
participate.
&• WILLS.
Maskyk «, Ferousson...!, L.
Bep. 4 CaL670.
GIFT TO CLASS, SOKE OF WHOM
HOT IN EXISTENCE AT TES-
TATOR'S DEATH.
See Hindu Law— WilL 4. 7.
Khcrodemonky Dosser b. Door.
camonsy Dossrk L L.
Bep. 4 Cal. 465.
SOUDAHONIV DoSSEE r. JoGESH
Chundeb Dutt...I, L. Bep.
3 Cal. 863.
And sec Treepoorasoondeky e,
Drbrndkonath I. L. Bep.
S Cal. 40, p. 53.
Under Limitation. S3.
DigrtLzedbyCOOglC
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DIGEST OF CASES.
OD7T WITH CONDITION RESTRAIN- GOOD FAITH.
INa PARTITION OR ENJOY- See the t
KENT. 1860.
See Hindu Law— WilL 1.
Mokoondo Lau-k.GoneshChum-
out...! L. Rep. 1 OaL 104.
GIFT ST MEMBER OF UNDIVIDED
FAMILY AFTER BALE OF UNDI-
VIDED SHARE OF OTHER MEM-
KERB.
Set Hindu Law-Gift. 8.
Ballabh Das o- Sunder Das... I.
L. Rep. 1 AIL 430.
OIFT TO PERSON DESIGNATED,
Set Hindu Law— WilL 0.
NtDHOOMONI V. S A ROD A PKRSHAD.
L. Rep. 3 L A. 353.
QIFT OF RESIDUE TO A CLASS— Post-
ponement of Period of Distribution — Act
X.of 1B65, §§gS, ioi, 102.
Set Will, 4. 6.
Maseyk v. Fhrgussoi«...L L.
Rep. 4 Oal. 804, 670.
GIFT OF SELF-ACdUIRED PROPER-
TY— To one Son to exclusion of others—
See Hindu Law— Gift. 1.
Sital o. Madho...L L. Rep. 1
All. 804.
GIVING TIME TO PRINCIPAL DEBT-
OR— Acceptance of Interest in advance-
Discharge of Surety.
See Principal and Bursty. 3.
Protab Chunder Dass •. Gour
Chunder Roy. ..I. L. Rep,
4CaL 183.
■ ■ Execution against Surety — Interest.
See Principal and Surety. 3.
Rauahuhd s-ChowdkrvSoondbk
Narrain...!. L. Rep. 4 Oal.
381.
GOOD BEHAVIOUR— Security for.
See Security tor Good Behaviour.
Empress v. Dbdar StRCAR I.
L. Rep. 8 Cal. 884.
See Whipping Act VI. 011804, $(
8*8.
Empress v. Partab...L L. Rep.
668.
i jmder Act XV11I. of
- " In good faith " (Act IX. of 1871, § 10, and '
Sched. II., Art. 134).
See Hindu Law- WilL 10.
Maniklal v. Manckershi X. L.
Rep. 1 Bom. 869.
- Defamation — Onus of Proving.
See Defamation.
Susho Prosad Pahdah I. L.
Rep. 4 OaL 134.
- Libel.
£« Libel.
Shepherd v. Trusters of Port
of Bombay L L. Rep. 1
Bom. 477.
GOODS OBTAINED BY MEANS OF AH
OFFENCE OB FRAUD— In Calcutta
— Pledge to Defendant resident beyond
Jurisdiction.
See Jurisdiction. 13.
Kartik Churn v. Gopal Kisto...
I. L. Rep. 3 Cal. 364.
GOODS FLEDGED BY INSOLVENT
AND RE-DELIVERED TO HIM
ON COMMISSION SALE.
Sec Insolvency. 6.
In re Murray L L. Rep. 3
CaL 58.
GOSAYIS — Custom amongst.
See Custom amongst Qosavis.
And see Hindu Law — Inheritance
- -Illegitimate Son, 5.
Nabeayanv. Laving. ..I. L. Rep.
3 Bom. 140.
GOTRAJA SAPINDA— Right of Widows
of — to inherit.
See Hindu Law — Inheritance —
Widow. 8.
Lallubhai ». Mankuvarbai ..I_
L. Rep. 3 Bom. 863.
GOVERNMENT CURRENCY NOTE —
Theft of—TitU of Original Omntr— Appealable
Order— Criminal Procedurt Code, Act X. of 187a,
5| 418 and 41G —Cashing a Currency Note —
Salt— Contract Act IX. 0/ 1872, §| 74, 76 and
108.] A Government currency note was stolen
from A. and cashed by B. in good faith for C.
On C's conviction (or theft, the Magistrate
Digitized byGOO^Ie
( M» )
DIGEST OP CASES.
( 666 )
GOVERNMENT CURRENCY NOTE—
ordered the note to be given to B. A. appealed to
the Session Judge, who was of opinion that he
was not competent to interfere as a Court of
Appeal under § 419 of the Criminal Procedure
Coda, but submitted the case for the orders of
the High Court.
Held, that the Sessions Judge might have
disposed of the case under § 419 of the Criminal
Procedure Code the words " Court of Appeal"
in that section are not necessarily limited to a
Court before which an appeal is at the moment
pending.
Held also, that the provisions of §5 76 and
108 of the Contract Acl IX. of 1872 did not
apply to the case. The change of a Govern-
ment currency note for cash is not a contract
of sale, and as the note came honestly Into B.'s
hands the order of the Magistrate was right.
Empress b. Jogessur Mochi. Ainslis and
McDonnell, JJ...L L. Rep. 8 Cal. 379 ; I 0*1
Bop. 888, 187a
Government ferry — Lease of —
Covenant not to underlet or assign— Ad-
mission of Partner.
See Illegal Contract.
Govri Shankak*. Mumtaz Ali
KHAN...I,L.Rep.3A11.4H.
GOVERNMENT LAND.
See Bombay Act I. of 1865, $ 88.
Collector or T h a n a e. D a d ab h a i .
L L. Rep. 1 Bom. 362.
GOVERNMENT REVENUE PAH)
DURING 'WRONGFUL POSSES
SION— Right to recover— Set-off-^Suit
for Mesne Profits.
See Right to recover Government
Revenue paid daring
Wrongful Possession.
TiLVCKCHAHD *. SOUDAHINI DASI.
L L. Rep. 4 Cal. 508.
GOVERNOR-GENERAL IN COUNCIL-
Legislative Powers of.
Set Legislative Pov«» of the Go-
vernor-General in Council.
L9.
Enfrsssv. BURBAH...L L. Rep.
SCal. 63 ; I. L. Rep. 4 Cal
178 ; L. Rep. 5 1 A. 178;
L. Rep. 8 App. Ca. 8S0.
GRAIN RENT— Arrears of— Suit for Money
Equivalent.
See Act XVin. of i87S) 5 q8, 1.
Tajuodin e. Rah 1'absh An. ..I. L.
Rep. 1 AIL 817.
GRANDSON - OF FATHER'S BRO-
THER—Right of— to Certificate under
Act XXVII. of i860 in preference to
Brother's Daughter's Son.
See Certificate to collect Debt*. 1,
OodovcharnMittbr...I. L. Rep.
4CaL411.
GRANT DURING CONTINUANCE OF
LESSOR'S INTEREST — Construction of
Pottah — Mokurruri Pottah.~\ A potiah having
been granted in 1808 to the respondent's an-
r " to continue during the term of the
Mokurruri" of the grantor; it appeared that the
grantor's Kabulayat, dated in 1788, contained
the following clause: — "If the present officers
of the British Government, or any authority
who may come hereafter, do not accept my
Mokurruri lease to be hereditary, 1 acknowledge
that this Kabulayat is only for one year, there-
after it shall be cancelled." It also appeared
that this lease had not been put an end to by
Government, but had been allowed to go on.
a suit by the appellants, who derived title
from the said grantor, to annul the mokurruri
nure claimed by the respondents : —
Held, that it was evidently the intention of
the parties that the grant should endure during
srm of the grantor's interest. If it can be
ascertained definitely what that term is, the rule
of construction that a grant of an indefinite
■e enures only for the life of the grantee
would not apply. If a grant be made to a man
in indefinite period, it enures, generally
speaking, for his lifetime, and passes no interest
his heirs, unless there are some words show.
I an intention to grant an hereditary interest.
That rule of construction does not apply
if the term for which the grant is made is
fixed or can be definitely ascertained. Though,
therefore, the grantor's lease of 1788 may not
have been strictly a mokurruri, yet it must be
yarded, as long as it went on, as an hereditary
lease, a ruaurasi pottah. That hereditary interest
he granted by the pottah of 1808 to the respon-
dent's ancestor, was not of an indefinite nature,
enuring only for the life of the grantee, but
passed to his heir* the whole interest of the
Diaxized by Google
DIGEST OF CASES:
(
)
GRANT DURING COSTTNttANOE OS"
LESSOR'S INTEREST- -contd.
grantor. Baboo Lbkhra} Kov «- Kunhya
Singh L. Rep. 4 X A. S8S, 1877 ; L L.
Sep. SCal 210.
GRANT OF INDEFINITE NATURE.
ie« Grunt during Continuant* of
Leeeor'e Interest. Sua™.
GRANT OP JAGHIRE BY THE EAST
INDIA COMPANY — Construction — Sur-
rounding Circumstances — Jaghire prima facie
Life Estate.} In the year iSoo, on the cession
of Sural to the East India Company, the then
Governor of Bombay granted a sunnud to one
N. K., which after reciting that Whereas by
virtue of a compact and convention made 'be-
tween the Government of the East India Com-
pany and the then Nawab of Surat, the manage-
ment and collection of the land revenue, &c,
of Surat, and the administration of the city had
been delivered over to the East India Company,
proceeded as follows: — "Underthese cm
stances it has appeared incumbent and proper
In the view' of the Chief Authority (Hooioor)
that some suitable provision should be made as
a subsidy for the expenses of the abovenamed
N. K. and his descendants ; that is to say, by
reason of close relationship, and being descend-
ed from the same ancestors as those of the
Nawabs of the Maritime City of Surat There-
fore, this has been settled by the instrumentality
of the Governor who is the ruler of the Marl.
time City of Bombay, &c, as follows : That
N. A'., with his children or descendants after
the deduction of the income of the jaghire ac-
cording to the particulars given at the foot
hereof, that is now in the possession of the
abovenamed A". A'., shall receive from the vali-
ant English Company's Government the sum of
Rs. 24,000 per annum by four equal instalments.
Hereafter should it be necessary for the Govern-
ment to resume the abovementioned jaghire,
given on account of maintenance or otherwise,
the amount of the income thereof shall be
received by the abovenamed N. K., and his
children or descendants, from the Treasury of
the valiant English Company."
if., a grandson and successor of N.K,, mortgag-
ed some of the mehals comprised in the sunnud
the rents of which were thereafter collected by
the mortgagee, and subsequently by the Govern-
ment, fn an action brought after M.'s death
GRANT OP JAGHIRE ST THE EAST
INDIA COMPANY contd.
again let F (his sister and saccessor^ , the Govern-
ment, and certain descendants of Jf.'i sisters, for
payment of the balance due upon the mort-
gage, it was contended that M. had only a. life
estate in the mortgaged mehals.
Held, that the construction of the sunnud
might be aided by a consideration of the sur-
rounding circumstances, and of the occasion on
which It was granted, and that according to the
construction of the sunnud, and having re-
gard to itsobject and terms, each of the descend-
ants of N. K. who took the jaghire took it fee
life only.
A jaghire must be taken primd facie to be an
estate for life only, although it may possibly
be granted, in such terms as to make it here-
ditary... GlILABDAS JACJIVANIIAS V. COLLECTOR
of Si.-rat._L. Hep. 81A.64; 1878 ,- 1. L.
Rep. 3 Boko. 185,
OBANT OP LETTERS OP ADMTNTS-
TBATION WITH WH-LANNBX-
ED— After Seven Days from Testator's
Death may be made.
See Indian. Sncceseiow Act X. of
1865, § 368.
Wilson.. ,L L, Bep. 1 Col.
148.
GEANT IN LIEU OF HAINTENANC-G
—Resumption of — Limitation.
See Limitation . 8<
PlTAMBERV. NlLMONY.,.1. L.
Bep. 3 Cat 798.
GEANT OP HONEY IN XJXV OP
MAINTENANCE— Alienation by Will
of Lands purchased with — valid.
See Hindu Law — Alienation by-
Widow. 4.
And Hindu Lair— Will. 8.
.Nbll-irumaru 9. Marakathah-
Hal I. L. Sep. IMad.
166.
OBANT BY WIPE DURING ABSENCE
OF HUSBAND— Possession fir Tvml-se Years
by Grantee under Invalid Grant— Adverse Pos-
session.] A wife, during the prolonged absence
of her husband, who was erroneously supposed
* dead, acting in excess of the limited
powers of a wife in possession of her absent hu*.
D.gmzed by G00gle
DIGEST OF CASES.
( WO >
GRANT BY WIFE DURING ABSENCE
OF HUSBAND— ttmtd.
band's property, made a maarasi grant in 1855
of a portion of bet husband's estate, re-
serving an annual fixed rent of Rs. 23. The
grantee entered into and remained in possession
for upwards of twelve years : — Held, that the
position of the grantee was. aot that of a lessee,
and that bis possession (although in its inception
as act of trespass against the husband), having
continued for twelve years, had perfected his
title to the lands. One. who holds possession on
behalf of another does not, by mare denial of
that other's title make his possession adverse,
so as to give himself the benefit of the Statute
of Limitation. Bejov Cifunder Bannekjeeo.
Kallt Prosonxu Mookekjer. Mariby and
Prnmef, J J L L. Rep, 4 Cal. 887, 1878.
grant or talook — c»vtmcium «/
Sanad— Will.'} S. C, a Hindu, granted a talook
to bis sister JC., by a sanad in the following
terms 1— "You are my sister. I accordingly
grant you, as a talook for your support, the three
Tillages ft., R, and K., belonging to my zeminda-
ry, with all rights appertaining thereto, ataioW
jamma of Rs. 361. Being in possession of the
land* and paying tent according to the takul
jamma, do you and the generation born of your
womb successively (santart areas kreme) enjoy
the same. No other heirs of yours shall have
right or interest." At the date of the sanad K.
had one child, a daughter, C. She afterwards
had a son, who died in her lifetime without issue,
but whose widow, by his permission, adopted,
after bis death, a son, C. £. S. held undisputed
possession of the talook during her lifetime, and
by her will devised it to C, her daughter, and
C. L., her grandson by adoption, in equal moieties.
On K.'a death H. C, as heir of bis father S.
C, took possession of the talook. Whereupon
C. and C. I-, claiming under the will of AT., sued
for possession 1 —
Held, by the Court of first instance, that C.
took an absolute estate under the sanad 00 the
death of her mother, K., but that having elected
to take under her mother's will, and to admit
the co-plaintiff C.L. to a half -share in the estate,
both plaintiffs .were entitled to maintain the
action.
field, by the High Court on appeal, that C.
having been bom before the date of tbe sanad,
took, under it, a life interest in the talook in
succession to tho.life interest of ber mother.
GRANT 07 TALOOK - -contd-.
Bat that as tbe plaintiffs had not sued in respect
of the life interest, but claimed under tbe will of
K., which she was incompetent to make, the
suit must be dismissed.
flWrfby the Privy Council, that the earlier
words of tbe sanad whea read together were to
be taken as conferring an absolute estate on K.,
and that the concluding words, " no other heir
of yours shall have right or interest," must be
read as referring to the time of K.'s death ; and
that their effect was to make the absolute estate
before given defeasible in the event of a failure
of issue living at tbe time- of ber death, in which
event the estate was to revert to the donor and
his heirs; but that, as this event had not occurred,
S. took an absolute estate, which she could dis-
pose of by will, and that, therefore, the plaintiffs
were entitled to succeed. Bhoobun Mohun
Debia v. Hakkish Ckunder Chowdky.-L L,
Rep. 1 Cal. 33,1978 ; L. Rep. 5 I. A. 138 ;
8 Cal. Rep. 339.
GRANT OF VILLAGE IN INAK
JOINTLT TO MEMBERS 07
UNPIVIDKD FAMILY.
See Hindu Law^TJndividod Fa-
mily. 1.
RADHASAI v. NAKABAV.......L L,
Rep. 3 Bom. 161,
GRANTEE OF MORTGAGOR— Priority of
Purchaser at Sale in Execution of Decree
on Mortgage over Purchaser from.
See Ntortgage. 6.
MllTHORA NATH v. CflUNOERMO-
NEY...I. L.Rep.4Cal.817.
GRAZING GROUNDS 07 VILLAGE— •
Right to graze Cattle on.
See Right of Free Pasturage.
Collector op Thaw* 'h. Bal
Patel..X L. Rep. S Bom.
110.
GREAT-GRANDSON OF GRAND-
FATHER OF DECS ABED HIN-
DU— Right of — to inherit.
See Hindu Law^r-Inheritance—
Brother's Daughter^ Bon.
JlIGCUT NARRALN «. ThS COLLEC-
TOR of Manbhooh I. L.
Rep. 4 Cal. 413, n.
D.gmzed by GoOgle
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DIGEST OF CASES.
{ m )
GBEAT-GRANDSON OF DECEASED'S
GBEAT - GREAT ■ GRANDFA-
THER—RIGHT OF, TO INHERIT
IN PREFERENCE TO FATHER'S
SISTER'S SON.
See Hindu Law— Inheritancfi— Fa-
ther'* Sister's Son.
Thakoor Jbbbnath Sinom v. Thb
Court or Wards. ..L. Bep.
9 LA. 168.
GRIEVOUS RVHT— Penal Cede, % 3M, 32a
— Woman with Infant in Arm* — Blow aimed at
Woman canting Child's Death.'] Ad accused
struck • woman, carrying an infant in her arms,
violently over the head and shoulders. One of
the blows fell on the child's head, causing
death:—
Held, that the accused was guilty of grievous
hurt in respect of the infant. Empress «.
Sahak Rak. Mariby and Prime}, J J. ..I. It.
Ben. 3 Cal. 833 ; 3 Cal. Bep. 804, 1878,
S. C under Criminal Procedure
CodB, Act X. of 1879, § 863. 4.
GROUNDS FOB REHEARING OF AP-
PEAL TO THE PRIVY COUN-
CIL.
See Practice— Privy Council. 4.
Pert a b Nabain v. Subhao
Kooeh...I. L. Bep. 4 0*1.
184.
GROWING CROPS— Pass on Sale of Under -
Tenure, unless excepted specially or by
Custom.
Set Bang. Act VHX of 1868, ( 66.
Apatoolla b. Dwarka Nath...
I. L. Bep. 4 OaL 814.
GUARANTEE.
See Appropriation of Payments.
Nicholls •. Wilson. ..I. L, Bep.
4 Cal S60.
GUARDIAN— Alienation by Certificated and
Uncertificated Guardian.
GUARDIAN -^-iW.
See Mortgage. 89. 60.
AbHASEB BBGUM *. MoHARAftKB
Rajboop I. L. Bep. 4
OaL 88.
Dbbi Dutt e. Svboodra BtBBB...
L L. Bep. 3 Cal. 388.
See Revisw. 10.
Madho Das n. Rubman Sbrak
Singh I. L. Rep, 3 All.
887.
See Sale by Guardian.
S00NDBB Nahain e." BlNKUD
Rak LL.Bep. 4 Cal.
76.
- Appointment of— to Miner Children of
Deceased Member of Undivided Hindu
See Certificate of Administration
of Minor's Estate.
GURACHARVA t>. SVAMIRAVACHA-
RVA...L L. Bep. 8 Bom.
481,
— Legal— Custody of Minor Sister— Pros-
titute.
Set Kabomedan Law— Guardian.
Abasi *. DUHHB..X L. Bep. 1
Alt 686.
- Power to appoint — after Previous Refusal.
Set Act EC of 1861, f 1.
Nehaio ». Nawal...I. L. Bep.
See Hahomedan Law— Sale by
Guardian.
Hasan Au v. Mbhdi Hussain.,.L
L. Bep. 1 All. S83.
Unauthorized Alienation by— Purchaser's
See Lien. 1.
KUVABJI v. MOTI HABIDAS...L L.
Bep. 8 Bom. 334.
GUARDIAN, APPOINTMENT OF— In-
fant— Power of High Court— Application hy
Petition without Suit.'] On an application made
on petition without suit for the appointment of
a guardian of the person and property of an
infant, the Court Receiver was appointed Re-
ceiver, and the property was ordered to be handed
over to him to sell it and invest the proceeds in
Government paper, and the matter was referred
to the Judge in Chambers for inquiry as to the
proper person to be appointed guardian. In the
matter o/Bittah. Matphenen, J....L L, Sep.
9 CaL 857, 1877.
Digitized byGOO^Ie
DIGEST OF CASES.
OUABDIAH AD LITEM— Effect of Ap.
pointment of — on Age of Majority of
Minor.
See Majority Act IX of 1670, i a
Suttva Gkosal 9. Sltttyanand...
L L. Bep. 1 CaL 388.
GUARDIANSHIP— Kidnapping Minor from
Sir Kidnapping.
Eupbesn V UMSADBAKSH...L L.
Bep. 3 Bom. 178.
GUARDIANSHIP OP ADOPTED SON.
See Hindu Law— Guardian ■hip.
Lakshmibaic. Shsiohar Vasadbv
Taklb.-.I. LBop. 3Born.li
GTJBU— Right of C/uIa to succeed to.
See Hindu Law — Inheritance —
Madho Das v. Kampta Das. ..I.
L. Bep. 1 All 580.
GUZABHTIIA KASHT.
See Beng. Act vm. of 1869.
LalSahoov-Deo Naraih Sihoh.
I. L. Bop. 8 0*1. 781.
HABEAS CORPUS, WRIT OP.
Privilege from Arrest — Decree of Smalt
Cause Court— Affidavits— Power of High
Court to inquire into Validity of Commit-
ment by Small Cause Court.
Set Privilege from Arreat.
See Small Canoe Court— Presidency
Town. 0.
Omritolall Dkt X. L. Bep.
10»1. 78.
HALP-XBOTHEB— Separated — Right of,
to inherit — Full Sister preferred to.
See Hindu Law — Inheritance —
Hater. 1.
SaKHARAM V. SlTABAI .1. L.
Itep. 3 Bom. SOS.
— — Succession of — in Undivided Family —
Dayabhaga.
See Hindu Law — Inheritance —
Brother. 1. 8.
Rajkishokk v- Gobind Ch under.
LI* Bep. lOal.87; 8. C.
M W.Bep.834; L. Bep.
4 L A. 108, n.
SHBOSOONDARKS.PIRTHKKSiNGH.
L. Bep. 4 L A. 147.
HARBOURING A XABBXED WOMAN
WHO HAS LETT HEB HUS-
BAND.
S<y Restitution of Conjugal Right*.
YaMUHABAI n. N. M. PENDBE...L
L. Bep. I Bom. 164.
See Civil Procedure Code, Act VDX
ofisou, i aoo.
Ajnam Kuar v. Suraj Prasad...
L L. Bep. 1 All, 001.
HAT - CHITT A— S tamp on Entry in.
See Stamp, 0.
Brojender Coomar b. Bromo.
move I. L. Bep. 4 Cal.
880.
HAVALAT— Entering a — with intent to
convey Food to a Prisoner.
See Prison* Act XXVI. of 1870.
Empress v. Lalai L L. Bep.
S All, SOL
KAZI- -Giant of Office of—
Daudsha 0. Ismailsha L L.
Bep. 3 Bom. 78.
Jamalt. Jamal.v...L L. Bep. I
Bom. 088.
ITABY OFFICE— Dancing Girl.
See Dancing Girl.
Kamalam v. Sadaoofa Sami...I.
L. Bep. 1 Had. 806.
HEREDITARY OFFICER- Right to offi-
ciate as — Suit for Declaration of.
See Declaratory Decree. 17. 18.
Chikto ». Laksrmibai .1. L.
Bep. S Bom, 870.
Khando ii.AprAji.„L L. Bep. 8
Bom. 870.
HEBEDXTABY TENURE— Polliem.
See Polliem. 1. 8.
The Collector of Teichinopoly
«. Lekhamahi L. Bep- 1
LA. 888.
Oolaoapa Chetty v. Arbuthhot.
Ibid. 868.
Digitized by G00gle
( 6TB )
DIGEST OF CASES
(
*
HERITABUE RIGHTS OFKUAWCIPA-
TOB OP SLAVE— Mahonwdan Law—
Will*.
Ac Act V. of 1843.
, Sayah Mis Ujitcdih e. Zia-ul-
Nissa...L. Bep. OLA. 137.
HIGH COTJBT — Appeal to— from Division
Bench where Judges differ, not confined
to Points of Difference.
See Appeal- Civil. 17.
Rah Dial v. Ram Das I. I*
Bep. 1 AIL 181.
Appeal to— in Suits tried in Son thai Per-
Set Jurisdiction. 11.
SiiKDHAiEE Loll v. Muhsoob
Ally Khan L L. Bap. 3
CaL 296.
HIGH COTJBT ffR™TTfrAL PBOCED UBE
ACTX. OF 1878— ff 33(037— Constitution of
Jury — Hindu Prisoner.'] A prisoner, not being
a European British subject, who is not charged
jointly with a European British subject, is not
entitled, under the provisions of the High Court
Criminal Procedure Act (X. of 1875), to be tried
by a jury, of which, at least, Eve persons shall
not be European British subjects. Reg. v. Lal-
LUBHA! GopaldAs. Westropp, C.J., Sargent and
Green, JJ t L. Bep. 1 Bom. 338, 1870.
S. (33. — Constitution of Jury, ~\ Under
the provisions of f$ 33 and 39 of the High
Court Procedure Act (X. of 1875), and the Rules
of the Supreme Court made in 1842 for the bal-
loting for petty juries (which have never been
abolished), the persons who are to be " chosen
by lot" to form the jury must be selected from
the entire number of persons summoned to act
as jurors, and this selection must be effected by
putting tbe names of the persons of all nation-
alities, summoned to act as jurors, into one box,
and drawing out nine names indiscriminately.
Rio. e. Vithaldas Pranjivandas. Bayley, J.
L L. Bep. 1 Bom. 463, 1873.
1. § I47-— Transfer of Case te High
Court — Mandamus."] A charge was made
against the accused of using criminal force,
under f MI oi tne Penal Code. The Police
Magistrate heard the evidence for the prosecu-
tion, and, without disbelieving it) decided that
it did nol amount to the offence charged:—
HIGH COTJBT CBUOKAL PB0CX-
DUB.B ACT X. Or l&7S—to*td.
Held, that assuming that an error of law hid
been committed, the High Coast had no power
to issue a mnstdamas to the Magistrate to compel
e the
Magistrate had declined to exercise jurisdic-
tion 1 he had exercised jurisdiction and heard the
Held also, that it was not a case which the
High Court could transfer under § 147 of Act
X. of 1875, as such transfer, if made, would be,
not for the purpose of quashing or afirmiag a
'ictioe or other proceedings, but for the
lose of hearing the case and taking tbe
evidence of witnesses, and determining whether
a case for a committal had been made out ; and
the section was not wide enough to enable the
High Court to do that. Malcolm •>. Gasper.
White, J I. L. Bep. S CaL 278, 1877.
3, j I*}.— Acquittal— Appeal.'] , 147
of Act X. of 1S75 does not provide for an appeal
against an acquittal. It contemplates the
tranfer of a case before disposal, or interference
on behalf of persons aggrieved of injured by in
order of the Magistrate, or where there has been
a conviction. Tub Corpobatkim of Calcutta
*. Bkeecunbah Napitt. Macpkerson, J...L L.
Bep. 8 CaL 390, 1877.
3.—— § 147.— Refund of Fin* on Quashing
Conviction — Notes of Evidence taken by Magis-
trate—Affidavit- -Transfer of Case to High Court]
The High Court has no power, under § 147 of
the High Court Criminal Procedure Act, to
order a fine to be refunded on quashing a
conviction.
Tbe Court in this instance decided whether
the case should be transferred under { 147 on
the notes of the evidence taken by the Magis-
trate. Reg. e. Haujee Jsbbun Box. Pontifet,
J ,.X L. Bep. 1 CaL 364, 1876.
[Nolo.— Affidavits were used in this case
mentioning evidence which did not appear on
the Magistrate's notes. Their use was objected
to, but no decision appears to have been given
on the point]
i,- %l4fi.— Transfer of Case to HigkCowl
—Notice to Prosecutor— Penal Code, §5 so*,
354— Specific Charges-rProeedure on Transfer to
High Court.] When a conviction has been
arrived at, and the petitioner is actually suffer-
ing iQiprifonraeatt it ..is within the discretion 0'
Digitized byGOO^Ie
DIGEST OF CASES.
HIGH COURT CRimTHAX PROCE-
DUBJS ACT X. 07 1875— could,
the Higli Court to order, lor sufficient firimi
facie cause shown on the application of the
prisoner, under , 147 of Act X. Of 18751 that
the case be removed, without notice to the
Semble — A charge under §§ 2y2 and 394 of
the Penal Code should be made specific
regard to the representations and words alleged
to have been exhibited, uttered, and to be ob-
scene. And the Court, in its decision of the
matter, should state distinctly what wen
particular representation a and Words which it
finds in the evidence the accused person;
had exhibited and uttered, and which it judges
to be obscene within the meaning of those
sections.
The Magistrate <n this case not having given
such specific decision, Tkear, J., said, p. 359 —
" Had the case remained as the Magisti
book represents ft, we should have been reduced
to the alternative of practically trying the
de novo, or of dismissing it, on the ground that
the Magistrate had come to no finding on which
his conviction could be sustained." Rio.
UPENDBONATH Doss. Pkear and Mariiy, JJ.
L X. -Rep. 1 C»L 806, 1876.
"IS.—1! itf.— Power cfTltvisioii— Presidency
Magistrates' Act IV. of 1S71.J The High Court
sitting as a Court of 'Appeal to hear an appeal
from a conviction and sentence by a Magist
tinder the Presidency Magistrates' Act (IV. of
1877), although such appeal may be dismissed
as not being .provided for by that Act, will
interfere under § 147 of the High Court Cri-
minal Procedure Act (X. of 1875) when it ap-
■ pears necessary Tor the ends of justice ; and, the
Tecord being before it, will proceed to try and
dispose of the case as a case transferred under
that section. In the matter of Jotharam
Davay. Jawmand Mutttumamy Ayyar, JJ. I.
L. Sap, 3 HM, 80, 1878.
S. C. under House breaimg.
HIGH COURT, JURISDICTION OF—
Breach of 'Contract by Railway Company
to deliver Goods within.
See Jurisdiciiou. 14 .
Muhawad Abdul Kadah o. E.I.
R*. Co...l I* Rep. 1 Had.
376.
HIGH COURT, JURKDICTIOH OP —
eontd.
Goods obtained by Offence or Fraud with-
in—Fledge of Goods to Defendant with-
out— Leave to sue.
See Jurisdiction. 13.
Kaktik Churh v. Gopal Kuto...
X,l.R»l>.3Gal.264.
To Imprison for Contempt of Court.
See Im priBcau»eut tor Contempt.
Maxim v. Lawbsncg...L L. Rep.
4 OaL 66S.
In respect of Offences committed in Foreign
Territory "(Cyprus).
See Offence committed at Cyprus.
EkfcMUtSJ d. SARuilKtt Singh—
i. -L.-Rep.ii ah. aia
In respect of OlTence committed in Foreign
Territory (Zanzibar).
See Offence committed in Formgn
Territory.
Empress o. Dossaii..X L. Rep.
» Bom. 334.
In Matters relating to Revenue.
See Jurisdiction ■ 18.
CouscTOft of Sea Customs, MAD-
RAS T. PaNNIAR CUTTHAM-
baram^.I. L. Rep. 1 Had.
89.
1 Power of the Legislature over.
See Act VX ot 1874, §».
Fbda H0S8UM...Z, L. Rep.
1 Cal. 481.
See -legislative Power of the Go-
v ernor GaieraJ in ConnciL
1.8-
Empress v. Bukram.-.I. IV Rep.
8 CrI. «S; L L. Rep. 4
C*l. 178 ;L. Rep. 6 I. A.
VB ; L. Rep. S App. Ca.
- Over Small Cause Court.
SeeOmail Cause Court— Presidency
Town. D,
Omritoi.all .Dev.. X L. Rep. 1
Cal. 78.
Diarized by Google
{ 879 >
DIGEST OF CASES.
(
»
HIOH COURT, JURISDICTION 07
— — Suit by Creditor to hare Tmsti carried out
of Deed of Trust giving Trustee* Power
to sell Lands in MofussiL
Set Suit for Land. 9.
Drlhi and London Bank v. Wor-
nr-.L IV. Hep. 1 Cal. 249.
Suit (or Injunction to restrain Working
Mines os Defendant's Land— Disputed
Boundaries.
Set Suit for Land, L
E. I. Rv. Co. >. Bengal Coal
Co.-I. L. Bop. 1 Cal. OB.
— To Enlarge Time for Deposit of Costs.
Set Act VI. of 1874 , S 11.
SoOBlMUKHI KOSB...I. L, B«P-
9 CaL 979.
——To Grant Special Permission to deposit
Monej for Costs of Appeal to Privy
Council after Expiration of Time.
Set Act VI. Of 1874, , 8.
Lalla Gopbi Chund...L Ii Rep.
2 CaL 138.
Set Recognisance.
Empress v. Nubhul Huoo ...I, L
B«rp. 8 CaL 707.
— To Order Arrest of Person acquitted —
pending an Appeal against his Acquittal.
Set Criminal Procedure Coda, Act
Xof 1S72,§272. 3.1.
Res. b. Gobih Tbwabi L L.
Sep. I Oat 981.
Empress*. Mamcu...L L. Bop.
9 All. 840
See Evidence 6.
Empbess b. Kakim Baksh.-X Xi.
Bap. 9 AIL 886.
HIGH COURT-POWER OF- OK CASE
RESERVED OB CERTIFIED, TO
CONSIDER THE MERITS.
Res. e. Hobkibolb Chundeb
Ghos«...L It. Bap. 1 Oal.
907.
Set Power of the High Court on
Case Reserved or Certified
to consider the Merita of the
Cat*.
REU. «■ PlTAMDiR J|NA...L L.
Bep. 9 Bom. 81.
HIGH OOTJBT— PO TUB OP— AS COUBT
OP APPEAL FRO M FBESII>BE-
CT KAQZBTBATE — To interfere
tinder j 147, Act X. of 1875.
Sec High Court Criminal Procedure
Act X. of 1876, i 147.5.
JOTHARAM DAVAY...L L. BOp. 8
atad.aa
HIOH COUBT- POWER OF — AS A
OOTJBT OF BEFEBENCE-To Alter
Finding.
Sm Criminal Procedure Code, Act
t of 1873, § 28a
Reo. «. Balappa L L. Bep. 1
Bom. ess.
— ■ To Consider Jurisdiction of Sessions Judge
after Order by Division Bench for Trial
of the Accused.
See Criminal Procedure Code, Act
X. of 1879. 5 5*97. 7.
Bmpbiss * Sabhukh Singh... I.
L. Bep. » AIL 918.
HIOH COUBT— PO WEB OF— AS COUBT
OF REVISION-— To Interfere with an
AcquittaL
Set Criminal Procedure Code, Act
X. of 1879, S &97. 1- 8. 0. 6.
Hardeo...L L. Rep. 1 All. 180.
Auriokam ...L L. Bep. 9 Had.
88.
Eupkkss o. MrvA]i...L L. Bep. 8.
Bom. ISO.
EMPRESS*, DWAKKANATH...I. L.
Bep. 9 Oal 898.
■ ■- To Interfere with Magistrate's Discretion
as to Amount of Security to keep the
See Criminal Procedure Code, Act
X. of 1879, 55 904 and 987.
JtlOGDT Chuhdhe Chukkbrbuttt.
I. L. Bep. 3 CaL 110.
— To Quash Committal by Sessions Jadga,
Set Jurisdiction. 16a.
Empress «, Lacunar Singh... I.
L, Bep. 9 All. 388.
To Set Aside Order of Magistrate direct.
ing Detention of Persons Arrested, after
Acquittal, pending Appeal from Acquittal.
See Criminal Procedure Code, Act
X. of 1878, $ 287. 8.
Rao. *. GuotAM Ismail L L.
Bep. 1 AIL L
Diarized by Google
< 981 )
DIGEST OF CASES.
(
HIGH COURT-POWER Or— OH SPE-
CIAL APPEAL, TO CONSIDER
THE EVIDENCE.
Set Contract. 14.
Nanak Ram v. Mbhin Lal...L
L. Rep. 1 AIL 483.
HIGH COURT— RULES OF— Rule 14 of
«3«J August 1866 (Bombay).
See Power of Director* to bind
Company liy Bill of Ex-
change.
Thb Fleming S. * W. Co.... I.
L. Hep. 3 Bom. 439.
- — Rule 4 of Calcutta— 32nd June 1875.
See Probata. 9.
Shamachurn Mui.uck...L L.
Bop. 1 OaL 62.
Rules 4 and J of Madras— 5th July 1S66.
See Rules of Court.
In the mailer of the Petition of the
Attorneys. ..I. L. Kep. 1
Mad. 34.
HIOHW ATS— Obstruction to.
See Right to Sue. 1. 3. 8. 4. 6.
Sathu a. 1BBAHIH...I. L. Rep.
2 Bom. 4D7.
Gehanji ». GANPA-n...Ibid. 489.
Karih Baksh o. Badha...I. Ii.
Rep. 1 All. 249,
Fazal Haq b. Maha Chand...
Ibid. 557.
Rajkoomar «. Sahibzada ..I. L.
Rep. 3 CaL 20.
Power of Municipal Commissioner to close
or divert.
Sec Bengal Act EEL of 1864.'
Empress ». Brojonath Dry. ..I.
L. Rep. 9 OaL 425.
See Right to Sue. 4.
Faeal HAg e- Maha Chahd...L
Is, Rep. 1 All. 657.
HINDU EXECUTOR — Position of— Void
Bequest to Unascertained Class— Suit by
Heir.
See Limitation. 88.
Khbrodemuney v. Doorgamoney.
L L. Rep. 4 CaL 466.
HINDU LAW— Application of— to Maho-
niedan Family adopting Hindu Customs.
See Mahomedan Family adopting
Hindu diatoms.
SUODURTONNESSA O. Ma) A DA
Khatoon.,.1, L. Rep. 8 CaL
684.
HINDU LAW-ADOPTION.
Adopted Son, Agreement Defining and
Restricting Rights of.
See Hindu Law— Adoption. 16. 17.
Adopted Son, Inheritance of, to Adoptive
Mother.
See Hindu Law — Inheritance-
Adopted Bon.
Sham Kuar n. Gaza Din. L L.
Rep. 1 AIL 266.
Adopted Son, Share of, on Partition.
See Hindu Law— Partition. 1L
RachuhAnand Sadhu I, L.
Rep. 4 CaL 426.
Among Jains-Adoptior
by Widow w
St-i- Jain Law. 2.
Shbo Sinch Rai 9. Mussamut
Dakho L. Rep. 6 L A.
87 ; L L. Rep. 1 AIL 688.
Among Jains — Sister's Son.
See Hindu Law— Adoption. 1.
Cancellation or Renunciation of.
See Hindu Law— Adoption. 18.
Conditional.
See Hindu Law— Adoption. 6. 17.
of Daughter's Son.
See Hindu Law— Adoption. 6. 7.
Sec Jain Law. 2.
Sheo Sing v. Mussr. Dakho...
L.B.UA. 87.
of Distant Kinsman.
See Hindu Law— Adoption. 8.
■ of Eldest Son.
See Hindu Law— Adoption, a.
Gift and Acceptance.
See Hindu Law— Adoption 10,
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DIGEST OF CASES.
HINDU LAW -AIJOPTION-cohW.
-— limitation to Suit— to set aside.
See Limitation. 68.
Raj Bahadoor t>. Achumhit...L.
■R. fl I. A. 110.
by Minor.
See Hindu Law -Adoption. 10,
— of Mother's Sister's Son.
See Hindu Law— Adoption. 4.
i of only Son.
See Hindu Law — Adoption. 2.8.
8.6.
of Sister's Son.
&* Hindu Law— Adoption. 18.
Talabda Kolis.
See Hindu Law— Adoption. 16,
by Widow.
See Hindu Law — Adoption. S.
10. 11. 12. 18. 17.
1. Joins— Sister's Son. — In questions
arising between parties of the Jain sect, the
custom of the sect should be inquired into and
given effect to, although it may be at variance
with Hindu law.
The adoption of a sister's son is valid under
the Jain law. Hassan Ali o. Naga Mai,.
Stuart, C.J., and Oldfield, J...L L. Rep. 1 All.
B89, 1876.
[Note.— The objection to the validity of the
adoption put forward in this case appears to
have been two-fold, vi*,, that the adopted son
was the adopter's sister's son, and that he was
such sister's only son. Whether this was so or
not does not appear from the report.]
8. Eldest Son— Only Son—Shebattskip
—Succession of a Hindu Widow as Shreait—
Special Custom.} In a suit by a Hindu widow,
as heir to her deceased husband, the last She-
bait, to recover certain property dedicated to
idols, it appeared that the plaintiff's husband
was an adopted son of his predecessor in office,
and that he was the eldest son of the first de-
fendant, who was the nearest male cognate of
the father. It was contended for the defendant,
(l), that the adoption of an eldest son was
invalid, and (a) that the plaintiff, being a
female, was incompetent to perform the duties
of a Shebait, and that the succession of a female
to the Shebaitship was opposed to the custom
HINDU LAW-ADOPTIOH-nniW.
of the family. The first defendant was in pos-
session, under the terms of a compromise effect-
ed with him by the plaintiffs father and uncle
on behalf of the plaintiff :—
Held that, according to the Dattaha Chand-
rika and Dattaka Mimansa, works of paramount
authority on Hindu Law, though the gift and
acceptance of an only son are strictly prohi-
bited, there is no prohibition against the gift of
an eldest son. The prohibition contained in
paragraph 13 of Chapter I., f n of the Mitak-
shara, is only admonitory, and not mandatory.
The adoption, therefore, of the plaintiffs hus-
band was not invalid by reason of his having
been the eldest son of his father.
Held also, thai without saying that there was
anything in the nature of the office which would
prevent its being confined to the members of a
particular family, or which would exclude fe-
males from inheriting, it lay on the plaintiff to
establish clearly that she was entitled, as heiress
of her husband, lo succeed to the office and eject
the defendent. The presumption in her favour
from her husband having been in possession did
not apply in this case with the same force as if
the question were who was to succeed to his
private estate. There, the ordinary rule of in-
heritance would prevail, unless displaced by
some special rule. Here, the very question at
issue was whether the rule of inheritance pre-
vailed at all.
Held, on the evidence, that the succession to
the office had not followed the ordinary rules of
inheritance under the Hindu Law, and that the
plaintiffs right to succeed as heir to her husband
under the Hindu Law of inheritance was not
established. Jaxokeb Debea *. Go pal
AcharjiA. Markby an&Mitter, JJ...L L. Hep.
3 Cal. 36B, 1877.
S. C. under Practice— Civil. 6.
8. Only Son— Sudras.'] The adoption
of an only son is invalid according to the Bengal
school of Hindu Law, and the prohibition ap-
plies to Sudras as well as to the higher castes.
Manick Ch under Dutttt. BkUgobutty Dos.
see. Garth, C.J., and Marihy, J...L L. B«P.
3 Cal. 448, 1878.
4. Among Sudras— Mother's Sister's
Son.] An adoption of the mother's sister's son
is valid among Sudras. Chtnna Naoayya v.
Pedua Nagayya. Morgan, C.J., and Kenan,
J L L,»ep. 1 Mad. 68, 1876.
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HINDU LAW-ADOPTION- eontd.
6. Conditional.] " If the Assistant
judge had referred to the casesof Vinayei No-
rayen Jog v. Gotindrav Chintaman Jog (6 Bom.
H. C. Rep., A. C. J. 114) and Ckitko Roghunath
v. Jonaii (li Bom. H. C. Rep. 199), he would
have seen that there is, at all events, authority
for holding that the rights of a minor, given in
adoption, may be defined and restricted by
agreement between the natural and adoptive
parents." Per Westropp, C.]., in Radhabai e-
Ganbsk Tatva Gholaf.-.I. L.Sep. 3 Bom. 7.
Soe 13. 17, infra.
6. Daughter's Son— Sister's San— Fac-
tum valet, Principal of— LiugayetSj It is ageneral
rule and a fundamental principle among Brah-
mins, Kshatryas and Vaishyas, that they are
absolutely prohibited from, and incapable of,
adopting a daughter's or sister's son, or son
ofany other woman whom they could not, by
reason of propinquity, many ; and the burden
of proving a special custom to the contrary
amongst any members of these three regenerate
classes, prevalent either in their caste or in a
particular locality, lies upon him who avers
the existence of that custom.
To such an adoption among Bran maris,
Kshatryas and Vaishyas, it being invalid, inas-
much as those castes are positively interdicted
from, and therefore incapable of, malting such
an adoption, the maiim quod fieri rum debuit,
factum volet, is quite inapplicable. The proper
application of that rule must be limited to cases
in which there is neither want of authority to
give or accept, nor positive interdiction of adop-
tion. In cases in which the Shastra is merely
directory and not mandatory, or only indicates
particular persons as more eligible for adopti
than others, the maxim may be usefully and
properly applied, if the moral precept or
mended preference be disregarded.
Lingayets are members of the Sudra, and not
of the Vaishya caste. Gofal Nabhab S a pray
•. Hanmant GaneshSafbay. Westropp, C.]-,
and KembaU, J...L L. Bep. 3 Bom. 373,
1879.
7, Daughter's Son.") Amongst Brah-
mans an adoption of a daughter's son is inces-
tuous and invalid, and cannot be supported on
the ground of /actum valet quod fieri nan debuit.
Copal Narhar Safray v. Hanmant Ganesh
Saf'ny (I. L. Rep. 3 Bom. 273) followed. Bha-
girthibai v. Radhabai. Westropp, C.J., and
West,) L LBep. 8 Bom. 398.
HINDU LAW-ADOPTION— amid.
8. Adoption of Distant Kinsman—
Dvyamushyana.] The adoption of a very distant
relation, not included within the sapindas of the
adoptive father, made in violation of the pre-
ferential right of the son of a brother of the
whole blood, held to be valid. The texts which
prescribe the preferential adoption of such son
have noc the force of law,
■are— Whether the only son of a separated
brother can be adoptedas dvyamushyana. Sbi-
Uua Devi v. Gokoolanand Das Maha.
*...L.Bep. 6 L A. 40; L L. Bep. 3 CftL
587; SCtil. Bep. 01.
S. C under Hindu Lav — Inherit-
ance-Daughter. 3.
J, Only Son.] Held {Turner, J., dis-
senting), that the adoption of an only son cannot,
according to Hindu law, be invalidated after it
has once taken place. Hanuman TlwARr e.
Chwa(...L L. Bep. 3 AU. 164, 1879, T.B.
10. By Widov> — Authority to adopt
granted by a Minor — Reg. X. of 179,3. * 33-]
Although the 33rd section of Bengal Reg. X. of
1793 prohibits a disqualified proprietor (i. e. the
owner of an estate of which the Court of Wards
has taken charge) from making or authorizing
an adoption, except with the sanction of the
Courts of Wards ; yet the words of that section
confine its operation to persons who are under
the guardianship of the Court of Wards.
A valid authority to adopt can be granted by a
Hindu minor who is not under the Court of
Wards, and has attained to years of discretion
according to the Hindu law. Jawoona Dassva
Chowdurani v. Bamasoondbrai Dassva Chow-
1K1...L. Bep. 8 I. A 73, 1878 ; L L.
Bep. 1 Cal. 389 ; SB W. B.
S. C under Bight to Sue, 8.
11. _ By WidoviSuccession to Imparti-
ble Zemindary for which no permanent Sunnud
has been issued —Adoption— Consent of Sapindas-
in Undivided Family.] The Hindu zemindar of
CMnnakimidy, an hereditary impartible zemin-
dary, died without legitimate issue, leaving a
widow The appellant, his undivided half-
brother, was placed in possession by the Collec-
the deceased i the Govern-
lominate a successor in the
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HINDU LAW -ADOPTION -contd.
nently settled, no permanent sunnud had been
issued. Thereafter the widow adopted the
spondent as a son to the deceased, in pursuance
of bis alleged written authority in that behalf,
and with the consent of the natural father of the
respondent, himself a sapinda of the deceased,
though separate in estate from him.
In a suit brought by the respondent, by his
adoptive mother and guardian, to recover the
zemindary with mesne profits s— ■
Held, l st, that there was no foundation for the
claim of the Government to nominate a succes-
sor, and that it was settled law that the title to
the zemindary is to be determined by the ordi-
nary law of succession.
The Ifarungaputy Case (L, Rep. I I. A. 282)
approved.
Held, also, that the authority to adopt was a
genuine document, and sufficient to validate the
Otherwise, the assent given by one separated
and distant sapinda (himself the father of the
child taken in adoption) did not in fact purport,
and was not in law sufficient, to authorize the
' adoptioo.
Although, according to the law of Madras, a
widow not having her husband's permission may
adopt a son to him, if duly authorized by his
kindred; yet the requisite authority is in the
case of an undivided family to be sought within
the family, even though the particular property
devolving on the adopted son Is to be held in
severalty, and not in coparcenery. The Ramnad
Case (12 Moo. I. A. 209) approved. Sri Raghu-
NADHAnSitiBltojc-K]SriORo...L.Bep.8 LA.
104, 1875 ; I. L. Bep. 1 Had. 68.
S. C. under Judgment.
19. Adoption by Widen after succeed-
ing as Heiress to her Son — Dravada District —
Motives of Widow in making Adoption without
Written Assent of Husband— Assent of Sapin-
das,] In a suit by an adopted son to recover a
zemindari (in the Dravada district) from the
(laughters of the late zemindar, who had been
put into possession by the Collector on the
death of the widow of the late zemindar, it
appeared that the latter had died leaving a son, in
whom the zemindari had vested as heir; that
the son died a minor and without issue ; that on
his death his mother was his heiress, and was
admitted as such and look possession of the
HINDU LAW— ADOPTION— contd.
zemindari, and, some years after the death of
her son, adopted the appellant, without any
written authority from her husband, but with the
assent of all the surviving sapindas of the family
of the original zemindar, and ih.it all the cercmo
nies requisite for an adoption were performed : —
Held, that if there had been a written authority
to the mother from her deceased husband to
adopt a son in the event of his natural son
dying under age and unmarried, the fact of the
descent being cast would have made no dif-
ference, the adoption being made in derogation
of the adoptive mother's estate ; and that there
was no reason why thegeneral proposition esta-
blished hy the Ramnad Case {Collector of Madura
V. Muttoo Ramalinga Setkapatky, II Moo. I. A.
397) — that, according to the law prevalent in
the Dranada country, a Hindu woman, not having
her husband's permission, may, if duly authoriz-
ed by his kindred, adopt a son to him — should
not apply in every case in which a widow might
make an adoption under her husband's written
authority. There was, therefore, no ground for
saying that because the estate descended to the
son, natural born of the original zemindar, and
the widow of the latter took it as heiress of her
son, and not immediately from her husband, the
adoption made by her, if otherwise valid, there-
fore became invalid.
Held also, that the High Court was wrong,
upon the evidence, in deciding that there had
not been made out such an assent on the part of
the kinsmen as to show that the adoption was
by the widow in the proper and bond fide
performance of a religious duty.
It would very dangerous to introduce into
adoption cases nice questions as to the particu-
lar motives operating on the mind of the widow;
and all that their Lordships Intended to lay down
in the Ramnad Case {ubisupra) was, that there
should be such proof of assent on the part of the
ipindas as would suffice to support the inter-
nee that the adoption was made by the widow,
at from corrupt or malicious motives, or in
order to defeat this or that sapinda, but upon a
consideration, by what may be called a
family council, of the expediency of Substituting
heir by adoption to the deceased husband.
Rajah Vellan ki Venkata Krishna Row *.
Vbhkata Rama Lakshmi Naksavya...L. Bep.
4 I. A. 1, 1876 ; I. L. Bep. 1 Mad. 174.
See 17, infra.
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DIGEST OF CASES.
)
HIKDU LAW— ADAPTION- w*M.
18. By Widow— Divesting of Property.']
A Hindu testator died, leaving two sons, P. and
B., to whom he gave alt his property absolutely.
In 1845 B. died, leaving a widow and a son K.
Af., and a will by which he gave all his property
absolutely to K. M. In 1851 P. died without
male issue, leaving a widow B. D. and a daughter
who died childless and intestate in B. D.'% life-
time. P. had made a will by which he bequeath-
ed all his property to his widow B. D. for life,
and on her death to his daughter's sons, if any.
B. D. died in October 1864, leaving a will, of
which she appointed her brother G. executor;
and G., In accordance with the directions in her
will, took possession of the property which B. D.
took as widow and under the will of P. K. M.
died in 1855, a minor, leaving a will by which
he authorized his widow, then a minor, to adopt
a Son on her attaining majority. In August
1876 the widow adopted th'e plaintiff, in pursu-
ance of the authority given in her husband's will.
In a suit brought by the plaintiff, as adopted
son of K. M. and heir of /'., to recover the pro-
perty left by P., the issue raised was : — Assuming
that the plaintiff was the lawfully adopted son
of K. if., was he the legal heir of P. ?
Held.tbai, as the plaintiff had not been adopted
when the succession opened out on the death of
B. D. he was not entitled to the property as the
heir of P. On B. D.'s death the property must
have vested in some person who was by Hindu
Law the reversionary heir to P., or in the Govern-
ment if no such person existed. The plaintiff's
adoptive mother could not claim to hold posses-
sion of the property from the death of B. D. in
trust for a future adopted son ; and as property
once vested by inheritance cannot be defeated
by a subsequent adoption by the widow, unless
such adoption is effected by the direct agency
or with the express consent of the heir, the
plaintiff was not entitled to succeed. Rally
Prosonno Ghosh b. Gocool Chundbr Mitter.
PonHftx and Milter, JJ...L L. Bep. S Cat
996, 1877.
14. Kidkamir'atan—Sanctionof Govern-
ment.') The sanction of Government to an adop-
tion by a Kulkarai, or his widow, or by a copar-
cener in the kulkamiship, in not necessary to give
it validity, nor has the Government any right tc
prohibit, or otherwise intervene in, such an adop-
tion. NarharGovindKulkarniu. Narrayan
Vittal. WestrofP, C. J., and N. Harridas, J...
I. L. Hop. 1 Bam. 607, 1877,
HINDU LAW- ADOPTION- -coxld.
15. Competency of Wife to givein AdoP-
—Conditional Content of Father to Gift of
Son—Non-Fulfilmtnt of Condition— Mistake of
Fact."] It is not competent to a wife, according
to the Hindu law prevailing in the Bombay Pre-
idency, to give a son in adoption against the
fill, express or implied, of her husband, the
father of that son.
Where the natural father of the son given in
adoption wrote to the adoptive mother, a widow,
giving his consent to the adoption on certain
conditions, one of which was that the assent of
the Government to the adoption should be ob-
tained previously to the adoption, and this
:onditiun was not fulfilled, though the other
conditions were substantially complied with 1 —
Held, that the father of the boy having made
the prior assent of Government an essential con-
dition of his own assent, it could not be dispens-
ed with, or relieved against, though the condition
was unnecessary, and was imposed under a mis-
taken belief that the assent of Government was
necessary to the adoption, and that the adoption
! in disregard of It was no adoption at all.
Ramgabai 9. Bhagirthibax. West and Pinkey,
]} i L. Rep. S Bom. 877, 1877.
10.
■Among tkeTalabdaKoliCaste—Con.
•o settle— Specific Performance.'] It is not a
necessary conseque
e of the ci
nstance that
the spiritual motive for adoption, which exists
among Hindus of castes higher, or other, than
the Talabda Koli caste, has" no influence upon
it, that its members may not lawfully adopt.
Where a member of the Talabda Koli caste, by
an express promise to settle his property upon
the defendant, induced the parents of the defend-
ant to give him their son in adoption, but died
without having executed the settlement : —
Held, that the equity to compel his heir and
legal personal representative specifically to
perform the contract survived him, and that the
property when it came into bis widow's hands
was bound by the contract ; and therefore,
when the widow of the adoptive father, nearly
thirty years after hb death, did, by a deed of
settlement, carry her husband's contract into
complete execution 1 —
Held, th«t, strictly speaking, the property of
the deceased on his death vested in interest in the
adopted son, the defendant, as his heir, who
was then entitled to immediate possession, and
the acts of the widow were merely for the
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DIGEST OF CASES.
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HINDU LAW-ADOPTION-nmW.
purpose of, and had the effect of, vesting that
property in him in possession. But that evei
if the adopted son, the defendant, were no
himself regarded as the heir of his adoptiw
father, but merely as a person on whom (hi
latter had contracted to settle his property, then
his adoptive father having died childless, divided
from his fcinsmen, and not having performed his
contract, his moveable and immoveable estate
vested completely in the widow by way of
inheritance, who had full power to perform the
contract of her husband, and was not bound to
avail herself of the plea of limitation if such a
plea were open to her, and that it was not com-
petent for the person who, if her husband had
not adopted the defendant , on the death of the
widow, would have been her husband's heir, to
set up such a plea, which had been waived by
the widow. Bhala Nahaka ». Parbhu Haw.
Westrofp, C.J., and West, J I. L. Bep. 2
Bom. 67, 1S77.
17. Conditional Adaption— Agreement
by Adoptive Mother with Natural Father in Dero-
gation of the Infant—Adopted Son's Rights-
Ratification.] A Hindu widow, during the life-
time of her husband's minor adopted son,
alienated two-thirds of her husband's estate.
On the son's death, she being heiress to the son,
but under authority from her husband, adopted
the plaintiff, while an infant, entering into an
agreement with his natural father which recited
the alienations made by her, and proceeded ai
follows : — " Agreeing, therefore, to my begotten
son, who is the minor adopted son above men.
tioned, being put in possession of the said pro-
perty which now remains, after he has attained
his majority, I have, with my full consent given
my said son in adoption ; whether or not there is
more property, neither I nor my son, who is the
adopted son above mentioned, have any sort of
claim or title to the same or to their enjoymenl
No fraud was practised upon the father, and the
conclusion that their Lordships drew from the
evidence was, that he had consented to give his
son in adoption on the understanding, that he
would only inherit about one-third of the pro-
perty of his late adoptive father's estate, being
aware, or not caring to inquire, how the remain.
ing two-thirds had been disposed of. The plain-
tiff, two years after he came of age, and his adop-
tive mother, executed an agreement, dated the
19th August 1871, reciting the said alienations
HINDU LAW-ADOWlON-wnW.
whereby the mother and son entered into a fami-
ly arrangement with respect to the residue.
This agreement was voluntarily executed by the
plaintiff when he was aware of his rights, and
under the advice of third parties, strangers to
his adoptive mother. In a suit by the plaintiff
against his adoptive mother and the alienees of
i-thirds of the estate, to set aside the
3ns, and recover all the estate which was
of the adoptive father, alleging himself to have
been ousted from the whole thereof, their Lord-
ships of the Privy Council said :— " Some of the
nces of this case are peculiar. The
first adopted son became his father's heir; on
the death of that son after that of his father, the
widow became the heir, not of her late husband,
of the adopted son. Whether by the act of
adopting another son she in point of law divested
herself of that estate b favour of the second son
may be a question of some nicety, on which their
■Lordships give no opinion. How far the natural
father can by agreement before the adoption
ill or part of his son's rights so as to
bind that son when he comes of age is also a
question not altogether unattended with diffi-
culty ; although the case of Chitko v. Janata (11
Bom. H. C. Rep. too) certainly decides that an
agreement on the part of the father that his son's
interest shall be postponed to the life interest
of the widow is valid and binding. In this case
their Lordships thinlt it enough to decide that
the agreement of the natural father was not
void, but was, at least, capable of ratification
when his son came of age";and held that the
same was validly ratified by the agreement of
the 19th of August 1871. Ramasawwi Aivan a
Vbncataramaivan L. Bep. 6 I. A. 196,
1879;I.L.Bep.2Mad.91;50alBop.a46.
See 8. 12, supra.
18. CanteUation of — by Adoptive
Father.] When an adoption has once been
absolutely made and acted on, it cannot bo
cancelled or renounced by the adoptive father,
and it cannot be declared invalid or set aside at
of the adoptive father. Sukhbasi Lal
\n Sinqh. Stuart, C.J., and Spaniie,
L L. Rep. 3 AIL 366, 1879.
J
HINDU LAW— ALIENATION OF AN-
CESTRAL PROPERTY.
See Index heading
Ancestral Property.
Alienation of
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DIGEST OP CASES.
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HINDU LAW- ALIENATION OF AN
CK8TRAL PROPERTY-«mW.
. Gift of Undivided Share by Member of
Undivided Family.
See Hindu Law-Gift. 2.
Ballabh Das v. Sunder Das...
I. I* Bep. 1 All 428.
For Maintenance of Ulegimate Son.
See Hindu Law — Mnintenancu of
Illegitimate Bon. 8.
Rajah Parichatif. Zalih Si
L. Bep. 4 I. A. 109 ; I.
L. Bap. 8 Cal. 314.
Mortgage by Father during's Son's Minor-
ity— Suit to enforce Mortgage — Onus
See Onus Probaudi. 7.
Bheeknarain Sihgh «. J.
Singh X. L. Bep. 2 Cal.
See Bombay Act V. of 1862.
Ardesir v. Musk. ..I. L. Bep. 1
Bom. 601.
See Civil Procedure Code, Act VIII,
Of 1859, j 269.
Kalafa v. Vbnratesh I. L.
Bep. 3 Bom. 676.
See Hindu Law — Alienation of
Ancestral Property. 1. 2. 3.
4.S.
Set Hindu Law — Liability of
Ancestral . Estate in
hands of the Heirs for the
Debts of the Ancestors.
Narravan o. Narso.,.1. L. Bep.
1 Bom. 262.
And See Hindu Law— Undivided
Family. 8. 4. 7. 8.
Dbsndayal Lkll v. Jugoeep Na-
RAiNS[NGH.,.L.Bep.4I.A.
247 ; I. L. Bep. 8 Cal. 198.
Rai Naraih Das e. Nownit Lal.
L L. Rop. 4 Cal. 809.
Lachhi Dai Koari s. Ashan
Sikoh L L. Bep. 3 Cal.
313.
Babaji t: VaSAdev...!- L. Bep.
HINDU LAW-ALIENATION OF
ANCESTRAL PROPERTY— contd.
See Sale in Execution of Decree.
10. 18.
Vrnkatramayvan v. Vehxata-
RUBBRAMANIA...I. L. Bep.
1 Mad. 80S,
Vbnkatasahi v- Kuppaiaji...
Ibid. 8S4.
— Sale by Father during Son's Minority —
Suit to set aside Sale.
Sen OnuaProbandi, 8.
Adurmoni Devi v. Ckowdhry.
Sib Nakain KUR...I. L.
Bep. 8 Cal. 1.
By Will in favour of one Son.
See Hindu Law— Will. 11.
Lakshuan v. Rauchahdra.,.L
L. Bop. 1 Bom. 661.
1, Mortgage of Family House — Sale in
Execution of Decree.'] L., a Hindu, mortgaged
the dwelling-house of his family, such dwelling-
house being ancestral property. In a suit
brought by the mortgagee against the widow
and mother of L. to enforce the mortgage ; —
Held, that the mortgage could be enforced by a
decree for sale of the house, though the defend-
ants were residing in it. Bhikhah Dasd. Pura.
Pearson, and Spankie, JJ...L L. Rep. 2 All. 141,
1876.
8. Liability of Ancestral Property itt
hands of Heir for Debts of Ancestor— Sale by
Ancestor— Suit to set aside Sale.] Ancestral
property which descends to a father under the
Mitakshara law is not exempted from liability
to pay his debts because a son is bom to him.
It would be a pious duty on the part of the son
to pay his father's debts, and the ancestral
property, in which the son, as the son of his
father, acquires an interest by birth, is liable to
the father's debts. The freedom of the son
from the obligation to discharge the father's
debts has respect to the nature of the debt,
and not to the nature of the estate, whether
ancestral or acquired by the creator of the debt.
The Mithila law is the same. Where a father
sold ancestral property in order to satisfy a
decree that had been obtained against him,
and the bulk of the purchase money was applied
in the discharge of the judgement debt, but
the application of a small portion wis not
accounted foe— Held, that his son could not.
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HINDU LAW— ALIENATION OF AN-
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therefore, under the Mithita law, set aside the
sale, and turn out the bond fide purchaser.
The onus of showing that the debt contracted
by the father was illegal or contracted for immo.
ral purposes, or that the bond or the decree on it
was obtained btnamee for the benefit of the
father, or merely to enable the father to sell the
family property and raise money for his own
purposes, lay on the plaintiff.
Quare -Whether a son can, under the Mitak-
shara taw, recover an undivided share of an-
cestral property sold by his father. A son is not
entitled under the Mithila law to any interest in
ancestral property sold by the father before his
birth,
Where ancestral property has been sold in
execution of a decree obtained against a father
under an order of the Court directing the parti-
cular property to be sold, the purchaser is not
bound to go back beyond the decree to ascertain
whether the Court was right in giving the decree,
or having given it, in putting up the properly for
sale in execution upon it. The purchaser is not
bound to go further back than to see that there
was a decree against the father ithat the property
was property liable to satisfy the decree if the
decree bad been properly given against him ;
and having inquired into that, and bond Repur-
chased the property under execution, and bond
fide paid valuable consideration for it, he cannot
be ousted by a son of the judgment -debtor.
GlKDHAKEB LaLL o. KaNTOO LaLL; MuDDUN
Thakook it. Kantoo Lall...L. Rep. 1 I. A.
331, 1B74 ; 14 Bong. L. Rep.
187; 26 W. B. 67.
8. Mitakshara Lao — Alienation by a Co-
Sharer of Undivided Shan— Separate Suit by Co-
Sharer— Minority— Act VlU.of 1859, j 246— Act
XIV. 0/ '1859, (§ II, 12.] B., a Hindu governed
by the Mitakshara law, died, leaving no male
issue, but only two widows, and two nephews,
5. and the appellant, the only remaining male
members of an undivided family. S. iuedfor,and
obtained possession of, from the widows of B-, a
moiety of the property left by B. The other
moiety of the property was sold in execution of
various decrees obtained against the widows by
creditors of the deceased B. In regard to three
of the execution sales, the appellant, by his mo-
ther and guardian, more than a year before suit,
unsuccessfully applied, under i 246 of Act VIU.
of 1850, for a release of the property attached)
in regard to another sale, it was made of pro-
perty subject to a eurfeihgee lease created by
the deceased.
The appellant (by his mother and guardian)
sued the widows, the auction purchasers, the
zurpeshgeedars, and S-, in order to set aside
those sales and recover possession of his moiety;
but with regard to the zurpeshgeedar defendants
no special ground for setting aside the leases
was alleged in the plaint, nor were any issues
specially pointed to the validity thereof. S.
disclaimed all title to such moiety.
A Full Bench of the High Court, in answer
to questions referred to it by the Division Bench
in this suit, ruled — 1st, that the appellant had a
right to sue the purchasers under the decree to
recover back the estate, inasmuch as the pro-
perty belonged to him, and the title under the
decree against the widows was an invalid title ;
and, 2ndly, that the deceased had no authority
to mortgage his undivided share in the joint
family property if it should appear that be did
so without the consent of his co-sharers, and in
order to raise money on his own account, and
not for tbe benefit of the family. No appeal
was preferred against these rulings, and tbe
Division Bench held, in alleged conformity
thereto, that the title of the defendants, includ-
ing the zurpeshgeedars, who were not entitled
to have their mortgage redeemed, failed, that in
regard to their sales the appellant Claim was
barred by ( 246 of Act VIII. of i3jj), inasmuch
as he had sued whilst under disability, and
after a year had elapsed from the rejection
of his claim ; but that, notwithstanding the
first answer of the Full Bench, tbe whole suit
must be dismissed, on the ground that it was
wrongly framed, inasmuch as the appellant
could not, consistently with the second answer,
sue for his separate share : —
Held by their Lordships, 1st, tha1! f f 11 and
13 of Act XIV. of 1859 do apply to f 246 of Act
VIII. of 1859, and in the case of a minor modify
the period of limitation resulting from that sec-
tion, and that the appellant was under disability
within the meaning of those sections, and that
the suit having been brought after the expira-
tion of one year, but during disability, was in
zndly, that, inasmuch as S., the only other
member of tbe joint family, bad disclaimed all
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HINDU LAW -ALIEN ATION 07 AN-
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interest in the appellant's share, and had been
made a party defendant ; and inasmuch as the
title of the purchasers was founded on execu-
tion sales confined to that moiety which on
partition would fall to the appellant ; and inas-
much as the objection to the frame of the suit
which was purelj technical and not substantial,
had not been taken by the defendants, but
originated with the Division Bench ; such objec-
tion could not be allowed to prevail against the
substantial justice of the case.
Htld also, that the appellant could not
cover against the inrpeshgeedais, no proper
issue with reference to their title to be redeemed
having been framed and determined.
On the death without issue of a member of a
joint Hindu family subject to the Mitakshara
law, his undivided share in the joint family es-
tate passes to the surviving members of the
joint family, and not to his widows, and cannot
be made liable for debts incurred by him on his
own account under decrees obtained against bis
widows as his representatives. If it can be
made available atall for such debts, it must be
in a suit against the survivors to charge the
share of the deceased in the joint estate with
the payment of the decree, by suing the survi-
vors for the debt, and asking to have the de-
ceased's share of the estate made available in
the hands of the survivors to the same extent as
that to which it would have been made avail-
able if the deceased had left a son, and the es-
tate had gone to him by inheritance, instead of
to the survivors by survivorship.
Quart, where a member of a joint Hindu
family governed by the Mitakshara law, without
the consent of his co-sharers, and in order to
raise money on his own account, and not for the
benefit of the joint family, mortgages his undi-
vided share in a portion of the joint family pro-
perty, can the other members of the joint family,
on his death, recover from the mortgagee the
mortgaged share, or any part of it, without
redeeming ?
Senile, that the- respondents, if they had ap-
peared, might, without a cross-appeal, have con-
tested the correctness of the answers given by
the Full Bench to the questions referred to
them, which were not in the form of a decree, or
even of an interlocutory order. Mussmmat
Phoolsas Koonwar i. Lalla Joobshur Sa- '
HINDU LAW— ALIENATION OF AN-
CESTRAL PROPERTY— tentd.
HDV...L. Rep. 3 I. A. 7, 1878 ; L L. Rep. 1
OraLSSe.
S. C. under Practice— Privy Council.
3.
4. Mitakshara Law — Mortgage of Ances-
Iral Estate by the Father— Purchasers at Execu-
tion Salt, mitk Notice of the Co-Sharers' Claims—
Effect of Execution Sale on the Share of Deceased
Judgment-Debtor.] A. S., a Hindu governed
by the Mitaksara, became in 1862 the sole owner
of certain ancestral immoveable property. In
1861 and i860 respectively he had born to him
two sons (the appellants). In 1870 A. S. mort-
gaged the whole of the immoveable property to
one B., to secure a debt which, it was found by
the Courts in India, had been incurred by him
without justifying necessity.
B., suing on the mortgage bond, obtained in
187a an ex-parte decree against A. S. alone
for the amount due for principal, interest, and
costs. During the lifetime of A. S. execution
was issued against the mortgaged property,
which was ordered to be put up for sale, but
the sale in execution did not take place till after
the death of A. S. when it was purchased by the
respondents. Prior to such sate the appellants
had filed a petition objecting to the sale, and
referred to a civil suit.
a suit after the sale by the appellants against
the execution creditor and the purchasers (the
ipondents) for the adjudication of their right
to, and confirmation of possession of the pro-
perty sold, and to have the mortgage bond, the
ex-parte decree, and the execution sale set
Held, that the finding that the appellants had,
; between them and 13., the execution creditor,
established that neither they nor their interest
n the ancestral immoveable estate in their
hands, were liable for the debt to B., which bad
been contracted by their father, was equally
binding as against the purchasers (the respon-
dents), who were parties to the suit, and had
the is
n which that find-
ing had been arrived at, and had equally with
B., the execution creditor, the means of cross-
examining the plaintiffs' (appellants) witnesses,
and of adducing counter- evidence, and who
having purchased after objections filed by the
appellants must be taken to have had notice,
actual or constructive, thereof, and of the order,
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DIGEST OF CASES.
HISITO LAW-AUEWATION OP AN-
CESTRAL FBOFEBTT-fonftj.
made upon (hem, and therefore to have purchased
with knowledge of the appellant*' claim, and
subject to the result of this suit to which they had
been referred. Held, also, that whether or not,
according to the law in the Bengal Presidency,
one coparcener has authority without the consent
of his co-sharers to mortgage his undivided
share in (he joint family estate, in order to raise
money on his own account, and not for the bene-
fit of the family, such share may be seized and
sold in execution, and the purchaser at an execu-
tion sale during the lifetime of the debtor for
his separate debt acquires his share in such
property with the power of ascertaining and
realizing it by partition, — and that at the time
of the death of A. S. the execution proceedings,
under which the property mortgaged had been
attached and ordered to be sold, had gone so
far as to constitute, in favour of the judgment
creditors ((he respondents) a valid charge upon
the land to the extent of the undivided share
and interest of A. S., which could not be defeated
by his death before the actual sale,- which sale
transferred to the respondents the undivided share
which formerly belonged to H. S.\ and that, not-
withstanding his death, the respondents were enti-
tled to work out (he rights which they had thus
acquired by means of a partition. Suraj Ban-
si Kobk ir. Siieo Prasad Singh... L. Rep. 6
I A. 88 ; SCal. Rep. 326, 1878.
5. ■ Mitakshara Lav— Undivided Pro-
perly belonging to Father and Son— Decree
against Son— Purchase of Son's Interest— Sale
fry Father—Suit for Possession by Purchaser from
Father.'] Where property belongs to a father
and son governed by the Mitakshara law, (he
'son's interest vests at birth, and is saleable.
i may obtain a partition and separate
o of h
I pioperty,
and his share once parlilioned will be liable
sale. There is, therefore, no re.ison why the
interest of the son in the property while undi-
vided should not be sold in satisfaction of his
debts, and why the purchaser should not be
entitled to obtain partition and possession.
Where such a purchaser had obtained possession
of the whole property;— Held in a suit by a pur-
chaser from the father, that, to avoid multipli.
city of suits, the simpler course would be to
decree joint possession of the whole premises to
the two purchasers until they should mutually
make some other arrangement. Jaludar
Singh e. Rah Lall. Jackson, C.J. (Offg.),
and Tottenham,] I. L. R«p. 1 C*L 733,
1878.
6. Family Necessity— Manager's Dis-
cret ion — Sale.} " Family necessity" Is an ex-
pression that must receive a reasonable con-
struction j and the head of the family, and those
dealing with him, must, in the interest of the
family itself, be supported in transactions which
though in themselves diminishing the estate,
yet prevent, or tend to prevent, still greater
losses. A reasonable latitude, too, most be
allowed for the exercise of the manager's
judgment, especially in the case of a father,
though this must not be extended so as to free
the person dealing with him from the need of
all precautions where a minor son has an interest
in the property.
The fact that a mortgage, or a bond, to pay
off which ancestral family property is sold, had
disprove an otherwise apparent family neces-
A debt contracted by the father of the family
in order1 to enable him to earn a maintenance
for the family, is one contracted under the pres-
sure of a family necessity, which the Hindu law
fully recognizes. Baba)i Mahadaji v. Kmsh-
kaji Devji. West and Pinhey, J.J... I. L. Rep.
3 Bom. 686, 1878.
7. Sale by Father during Minority of
Son — Suit to set aside Sale — Power ofMemberef
Undivided Family to alienate his share.'] F-,
during the minority of his son, the present
plaintiff, sold ancestral immoveable property to
provide means for immoral purposes, and not
under any necessity recognized by Hindu law-
In a suit brought by the plaintiff in his father's
lifetime to obtain possession of the property
alienated, and to cancel the deed of sale, the
order of reference to the Full Bench declared
that there was no reason to believe that the
purchaser acted otherwise than boni fide, and
referred the question whether the plaintiff could
obtain possession of the property alienated, and
whether the purchaser had by his purchase
acquired the share of F., and might have that
share ascertained by partition.
Held by Pearson, J., that the first question
must be answered in the negative, and that on
the supposition that the purchaser acted in good
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HINDU LAW— ALIENATION 07 AN-
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faith, his Lordship would be inclined to answei
the second question in the affirmative.
field by Oldfield and SfianUe, JJ„ that the
sale not having been made for the purpose of
satisfying any debts due, nor for the use of
the family, nor from proper necessity but entire-
ly to provide money for the indulgence by F-,
of immoral and vicious pleasures, was liable to
be set aside at the instance of the plaintiff.
Not could it be said thai this was a case in
which the purchaser, as dealing with the guardian
of a minor, or the manager of joint ancestral
estate, could claim partition : for though the
transaction was so far bon&fide on his part that
he paid the value for the property, it was clear
that, if he had made reasonable inquiry, hecould
have learnt the circumstances under which the
sale was being made, and been placed on his
guard.
Held also, that according to the Hindu lav
prevailing in the North-West Provinces, the
sale was invalid even to the extent of the share
of P., inasmuch as one coparcener cannot, ac-
cording to that Ian, without the consent, express
or implied, of his coparceners, alienate
share by voluntary alienation. Chakaili Khar
t. Ram Prasad... I. L.Rep. 2 All. 267, 1879,
7. B
HINDU LAW — ALIENATION OF
SELF- ACQUIRED iPBOPEBTY—
By Gift — Gift in favour of one Son
exclusion of others,
Set Hindu Law Gift. 1.
Sitald. Maoho...I. L. Bep. 1
AIL 394.
HINDU LAW — ALIENATION BY
WIDOW.
i — - Accumulation.
Sea Hindu Law— Alienation by
Widow. 1.
y Gift.
See Hindu Law— Alienation by
Widow. 3.
See Hindu Law— Gift. 3.
RUDR NSHAIN V. RlIF KUAR...L
L. Hep. 1 All. 734.
> Pay Time-
HINDU LAW — ALIENATION BY
WIDOW— contd.
of Lands Purchased with money granted
in lieu of Maintenance.
See Hindu Law— Alienation by
Widow. 4.
of Lands Purchased with Stridhan,
See Hindu Law— Alienation by
Widow. 3.
by Will.
Set Hindu Law— Will. ft.
Mahomed Shahsool v. Shewuk.
bam L. B. 3 I. A. 7.
A doptio n— Family Arra ngemenl~ Construc-
tion of Deed— Accumulations.'] One O. T., a
Hindu, adopted a son G., and, after the adoption,
executed a deed of gilt, by which, after making
provision for his daughter, he declared " that
ining milkiut and minhat estate, to-
gether with the amount o£ the ready money,
!s, slaves, and all household furniture, I
placed in possession of C. T., my wife, to
be enjoyed during her lifetime, in order that
she may hold possession of all the properties
and milkiut possessed by me, the declarant,
during her lifetime, and by the payment of the
Government revenue appropriate the profits
derived therefrom, but that she should not by
any means transfer the milkiut estates and the
slaves ; and that after the death of my aforesaid
wife the milkiut estates and the household furni-
ture shall devolve on G. 7"., my adopted son." On
the same day G. T. executed a similar document.
Held, that considering the document executed
by O. T., together with the surrounding circum-
stances, which were proper to be considered,
there was no reason for departing from what
appeared to be the plain and obvious construc-
tion of its language, «'«., that it was in the nature
of a family settlement, giving to C. T. an estate
for life, with power to appropriate the profits,
and to G. T-, in the phraseology of English law,
a vested remainder after her death.
There being no evidence extraneous to the
document, or expressed in it, or to be inferred
by necessary or even reasonable implication from
the language of it, of any such understanding
that supposed by the High Court to have
been come to by 0. T. and his adopted son G.
., that, notwithstanding the adoption, C,
T. should take and enjoy the estate of her hus-
band, in the same manner as she would have
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talcen and enjoyed it if no adoption had taken
place, — i>. in her character as Hindu widow, —
the document was not, upon mete conjecture of
what might probably have been intended, to be
so interpreted as to materially change the nature
of the estate taken by C. T.
For, if she took the estate only of a Hindu
widow, she would be unable to alienate the
profits, or, at all events, whatever she purchased
out of them would be an incremen
husband's estate : while, on the other hand, she
would, as a Hindu widow, have the right, under
certain circumstances, if the estate were insuf-
ficient to defray the funeral expenses
maintenance, to alienate it altogethe
would have the power to sell her own estate ;
and G. T., would not be possessed in any
of a vested remainder, but only of a contingent
one. She would also completely represent the
estate, and under certain circumsta
Statute of Limitations might run against the
heirs to the estate, whoever they might be.
There being no reason for importing into the
document words which would carry with them
all these consequences, it must be construed ac-
cording to its plain meaning, and whatever pro-
perty, real or personal, was bought by C. T. out
of the proceeds of her husband's estate, I
longed to her. S'ttmutty Rahntty Doss**
Sibchunder MulIUk (6 Moo. I. A, i) explained.
Mussumat Bhagbutti Bais n. Chowdhrt
Bholanath Thakoor... L. Bap. SLA, 386 }
SM.W.B. 168,1976
S. C. L L. Bep. 1 C*L 104, where,
however, no detailed
S. Stridhan — Soudayakam — Gift.]
Where a Hindu wife bad a joint interest with
her husband in certain landed properties, partly
by purchase jointly with her husband, and partly
by gift from her father : —
Htld, that the interest she possessed was, so
far as it went, an absolute and independent
terest, the one by purchase and the other by the
gift (so far as it embraced her interest) being in
the nature of Svudayaka m, and that she was
titled on the death of her husband to alienate
her interest by gift...MAt>hAVARAYYA s. Tirta
Sam mi. Morgan, C.}-, nadJnnes, J...I. L. Rep.
1 Xfrd, 807, 1877.
HINDU LAW - ALIENATION BY
WIDOW —conid.
I. — Land purchased rritk Stridhan—
Alienation of— by Will.] A Hindu lady, who had
during marriage received various presents of
moveable property from her husband after his
death, purchased certain immoveable property,
partly with the amount of soch presents, partly
with money obtained by pledging her own
jewels admitted to be her stridhan, partly by
using ber own credit and ability, and partly by
creating a charge on the property purchased : —
Held, that the property SO purchased by the
widow became her property as absolutely as that
which enabled her to acquire it, and tbat she
could dispose of it by will.
Pit Kinderslty, J— It might be that if she had
acquired the property before ber husband's
death, she would not have had an uncontrolled
power of alienation so long as be lived. Vbk-
KAHA RAU *. VENKATA SuEIVA RAO.
Morgan, C.J., and Kindtrsley, J... I. L. Bep. 1
Mud. 281, 1877,
1. Grant of Monty In lieu of Maintl-
t — Lands purchased Kith.] Where a sum of
money was given to a Hindu 'widow, by her
husband's family, without restriction, in lies of
Htld, that it became absolutely her property,
and that she could dispose by will of lands pur-
chased by ber with such money. NeujUEO-
maru Chbtty v. Mabarathammal. Innts
and Kinderslty, JJ...L L- Bep. 1 K»d. 186,
1876.
S. C. under Bonds I*w— WIIL 8.
S. — Payment of Time-barred Debt.J The
dictum in Mrlgiriapfa v. Snivafip" (6 Bom.
H. C. Rep., A. C J. 370), that payment of a
time-barred debt of a deceased husband was not
a sufficient purpose to support an alienation by
bis widow against his male heir, was not indis-
pensable to the decision.
An English executor may pay a time-barred
debt of his testator. The religious law of the
Hindu widow, which is even more urgent than
the moral obligation of the English executor,
enjoins on her the duty of paying the debts
of her husband if he be not a member of an un-
divided family. She completely represents the
inheritance, and is not bound to take advantage
of a plea of limitation, if such plea be open
to bar. Bahama Nahasa «. Pauko Habi...L
L. Bep. 9 Bom. 67, p. 71 ft-
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SOTDV LAW - ANCESTRAL PRO-
PERTY—Alienation of.
5fe Hindu Law — Alienation of
Ancestral Property.
— Alienation of — for Maintenance of Ille-
gitimate Son.
See Hindu Law— Maintenance of
Illegitimate Bon. 3.
Rajah Pakichat o. Zalim Singh.
L. Rep. 4 I. A. 159 ; I. L.
Rep. 3 Cat 314.
Mortgage of r— by Father during Son's
Minority— Suit to enforce Mortgage —
Onus Ptobandi,
See Onus Probandi. 7.
Bhbsknarain Singh v. Januk
Singh. ..I, L. Bap. 2 Cal,
438-
— — Nature of Son's Interest in Immoveable.
Set Hindu Law — Undivided
Family. S.
Bald bo Das v. Sham Lai,. ..I. L.
Rep. 1 AIL 77.
- Partition does not alter Its Ancestral
Character.
See Onus Proband!. 8.
Adubmoni c. Chowdhrv Sib
Naraik ... I. L. Rep. 8 Cal.
L
- Partition of Immoveable— Right of Song to
compel
Set Hindu Law— Partition, 2.
Suraj Bunsi Kobr v. Shbo Pbb-
shad Singh. ..L. Bop. 6 I.
A. 88, 100.
— Sale of in Execution of Decree against
Member of Undivided Family.
See the Index heading Alienation of
Ancestral Property.
— Sale by father during Son's Minority — Suit
to set aside Sale,
See Onna Probandi. 8.
Adubmoni V
Nabain...L L. Hep. 8 CaL 1.
Set Hindu Law— Alienation of
Ancestral Property. 7.
Chamaiu Kuab «. Rah Pbasao.
I. L, Rap. 8 AIL 267.
Conditional Salt — Foreclosure — Immove-
ablt Property purchased aith Ancestral Moveable
Property.'] In a suit to recover possession of
inds acquired by the plaintiffs grand-
father B. under a deed of conditional sale, dated
the 20th February 1847, it appeared that B.
afterwards foreclosed the mortgage, and that
after his death his son R. instituted proceedings
for, and obtained, possession of the lands which
he alienated to the defendant. The plaintiff
alleged that such alienation was invalid as
against him, on the ground that the land was
lOveable ancestral property, and therefore
inalienable under the Mitakshara law, and, fur-
ther, there was no legal necessity for the sale.
Held, that the property must be treated as
being ancestral immoveable property. Up to
"me of the foreclosure becoming absolute,
teres! of the vendee by conditional sale
,ted only to securing his money; but sent-
He, the effect of the foreclosure was to put an
end to the original conditional sale, and to make
the property the immoveable property of the
person who advanced the money from the com-
it. The Court below having found
that the alienation of the property in question
was not justified by necessity, and decreed the
plaintiffs claim, such decree was confirmed.
Per Kennedy, J. — " I do not at all see that even
if moveable property came into the hands of a
descendant and was converted into imnfoveable
ipcrty, that that would not be an ancestral im-
moveable estate. I do not know of any authority,
which shows that the meaning of an immoveable
ancestral estate is an ancestral estate which has
descended in immoveable form. I am inclined
think that it includes an ancestral estate, no
matter whether it descends in moveable or im-
moveable form." Sham Nabaih Singh 9. Ru-
ohoobuhuial. Ainslie and Kennedy, JJ...L L.
Rop. 8 Cal. 60S ; 1 Cal. Hep. 848, 1S77.
HINDU LAW ■■- ANCEBTRAL TRADE-
See Hindu Law— Maintenance of
Widow. S.
JoHUKRA BlBBB V. SrEE G-OPAL
M15SBB...L L. Bep. 1 OaL
470.
— — Ancestral Trade carried on for the benefit of
Infants—Liability of Infants.] Where the an-
cestral trade of a Hindu was carried 00 after bis
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DIGEST OF CASES.
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HINDU LAW-ANCESTRAL TRADE
death for the benefit of his infant children by
their guardian, and debts were incurred by the
firm in the course of business i —
Held, that the guardian of a Hindu minor
competent to carry on an ancestral trade
behalf of the minor, but that the minor on wh.
behalf the ancestral trade is carried on ought
not to be held personally liable for the debts
incurred in that business, but that, on the analogy
of | 247 of the Contract Act IX. of 1871, the
share of the minor in the trade is alone liable.
Peium Doss v. Ramdhone Doss (Tay. 279), Ram-
lal Thaiursidass v. Lakhmickund Muniram (l
Bom. H. C. Rep., AppX. 71), and Johurra Bibee
v. Sree Gopal Kisser (I. L. Rep. I Cal. 470)
followed. JOYKISTO COWAH V. NcTTYANUf
Nundy. Garth, C.J., Mariby and Mitler, }}
Z. L. Rep. 3 Cal. 788, 1878 ; 3 Cal. Rep.
440, 1878.
S. C. under Civil Procedure Code,
Act TO, of 1869, § 837.
HIHDn LAW — AUTHORITY OF
WRITERS.
1. Dattaka Mimansa.] "The Dattaka
Mimansa, which Mr. Colebrooke says
doubt the best treatise on Hindu adoption,'
though not quite invariably followed, is generally
of high authority in the Bombay Presidency."
Per Westropp, C.J., in Gopal NARHAR Saf
«. Hanmant Ganesij Safray...I. L. Rep. 3
Bom. 273-877.
8. Mayuiha— Authority of in Northern
Konkan — Comparative Weight of Mann, Mayuiha
and Mitakshara.'] " We think there are strong
reasons for considering that the law of the Mayu.
Itha, as thai admitted to be highly prized in Guja-
rat and Bombay, should prevail in this case. The
island of Bombay and the Northern Konkan, in-
cluding in the latter the island of Karanja, formed
part of the kingdom of Gujarat." His Lordship
then referred to the authorities establishing
this, and proceeded (p. 367) :— " Connected,
then, as Karanja and the rest of the Northern
Konkan so frequently were, with Gujarat and
Bombay, down to that period" (the cession of
the island of Bombay by the King of Portugal
in A.D. 1661 to Charles II.), "we should scarcely
expect to find a Hindu law of succession pre-
vailing at one side of Bombay harbour different
from that existing in the island of Bombay and
Gujarat. However, and without overlooking
HINDU LAW — AUTHORITY OF
"WRITERS— contd.
Krishnaji v. Pandurang ([9 Bom. H. C. Rep.
65), we are satisfied to abide by what is said in
the case of La/lubkai Bapubhai v. Uankuverbai
(1. L. Rep. Z Bom. 418, 419, 420) as to Manu,
the Mitakshara and the Mayukha when in com-
petition in this presidency." Per Westropp, C.J.,
in Sakharah Sadasiv Adhikari v. Sitabai...
I. L. R«p. 3 Bom. 358-367.
S. C. under Hindu Law— Inheritance
—Sisters. 1; and Hindu Law
--Inheritance— Mother. 1.
3. — Viratnitrodaya.] "The Viramitro-
daya is a Benares rather than a Bombay authori-
ty, and if its doctrine be, as contended, that where
there has been an intervening holder between a
brother and sister, or a father and daughter, the
inheritance opens, and the sister and daughter
are excluded, and the next male heir comes in, it
has not been followed in the Bombay Presi-
dency." Per Westropp, C.J. Dhondu GuraV i
Ganuabai..,!. L. Rep- 3 Bom. f
4, Manu — Mitakshara — Vyavahara
Mayukha— Viramitrodaya—Smriti Chandrika—
Vyawhara Madhava,] Per Westropp, C.J.,—
Manu, the Mitakshara and Mayukha are the
reigning authorities in the Bombay Presidency,
[n the Island of Bombay, ageneral, but not by any
means a universal predominance has been given
in the Recorder's, Supreme, and High Courts to
the Mayukha over the Mitakshara. But high
undoubtedly is the authority of the Institutes
of Manu, the Mitakshara and the Mayukha in
the Bombay Presidency at large, it cannot be
affirmed that the whole of any of those works
full force in any part of this Presidency.
They are all subject to the control of usage.
In all there are' precepts which, if ever they
were practical law, have, for a time beyond the
memory of living man, been obsolete.
The Viramitrodaya is not regarded so much
the Bombay Presidency as at Benares, and
occupies a place among the works of authority
the Bombay Presidency far below the Mitak-
shara and Mayukha, and is not accepted when
conflict with them.
Per West, J,— The Smriti Chandrika may ap-
parently be regarded as the governing authority
in Madras, and the Vyavahara Madhava is also
of weight in that Presidency.
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HINDU LAW — AUTHORITY 07
WRITERS— cor.td.
The Mitakshara is the leading authority on
the Hindu law of inheritance for the Bombay
Presidency, but it is subject to an exception in
the Island of Bombay, where (he doctrines of
the Vyavabara Mayukha predominate. Lal-
lubhai Bapubhai «. Mankuverbhai...L L.
Rap. 3 Bom. 388, 418, 439,
436, 446.
6. Ratnakara — Manu — Mitakshara —
Mayukha — Smriti Chandrika — Balatnbhatta —
Jaganatka—Jimuta Vahana.'] The Ratnakara,
though of authority in Mithita, is not so in the
Bombay Presidency. The three chief books of
authority in Western India are Manu, the Mi-
takshara and Mayukha. Calluca Bhatta's com-
mentary is much valued in the Bombay Presi-
dency, but Balambhatta is not of much weight.
The authority of Jimuta Vahana and Jaganatha
respectively stands higher in Bengal than in
Bombay. Though not maintaining, on ques-
tions of Hindu law, the text of Vrihaspati (3
Dig., pL cccxxxiii., p. 313) that " no Code is
approved which contradicts the sense of any
law promulgated by Manu;" yet on a question
as to which the Smritis vary so much as that of
disqualification for inheritance, the pre-eminence
assigned by Vrihaspati to Manu should not be
forgotten.
The Smriti Chandrika is not a book of autho.
rity in the Bombay Presidency. Per Westropp,
C.J., in MllRARJI GOK.II.DAS !. Parvatibai...L
L- Rep. 1 Bom. 177, 1876.
S.C. under Hindu Law— Disquali-
fication to Inherit. 1.
HINDU LAW— BETROTHAL.
See Injunction. 1.
Gunput Narain Singh...!.
L. Rep. 1 Cal. 74.
HINDU LAW-CAPACITY 07 MAS.
BLED WOMAN TO CONTRACT— Consent
of Husband— Stridhan.] A Hindu wife, who
has voluntarily separated from her husband
without any circumstances justifying her sepa-
ration, is liable for a debt contracted by her
even for necessaries, although without her hus-
band's consent; but her liability is limited tothe
extent of any stridhan she may have. Nathu -
ML Bhailal v Javuek Raiji. Westropp, C.J.,
and N. Harridas, J..X L. Rep. 1 Bom, 131,
1876.
HINDU LAW — CONTRACT - Applica-
bility of— to Bengal — Mofussil.
Sec Interest. 4.
Deem Doval e. Kylas Chunder...
I. L. Rep. 1 Cal. 02-
HINDU LAW — DISQUALIFICATION
TO INHERIT— Blindness.
See infra, I. &.
Childless Widowhood.
See Hindu Lav — Inheritance—
Daughter. S.
AUHIRTOLALL V. RaJOOHEEKANT...
L. Rep. 3 1. A. 118.
See Hindu Law — Inheritance —
Daughter. 3.
Srimati Uma Devi ». Gokool-
iHA»D...L. Rep S I. A. 40.
Illegitimacy— Offspring of Adultery.
See Hindu Law — Inheritance —
Illegitimate Son. 4. 5.
Rahi t>. G0V1ND...I. L. Rep. 1
Bom. 97.
Narayan «. Laving. ..L L. Rep.
3 Bom. 140.
1. Blindness.'} Accordingtothe Hindu
law prevailing in the Bombay Presidency, blind-
ness, to cause exclusion from inheritance, must-
be congenital.
Therefore, where the widow of a childless
intestate Hindu, though proved to have been
totally blind for some years before the death of
her husband, was admitted not to have been
born blind :—
Held, that such blindness did not prevent her
from inheriting the property of her husband on
his decease. Murarji Gokaldas e. Parvati-
bai. Westropp, C.J., and Sarjeant, J ..I. L.
Rep. 1 Bom. 177, 1876,
9. Blindness.] Incurable blindness,
if not congenital, does not, under the Hindu law,
exclude the person afflicted, from inheritance.
Umabai v. Bhavu Padmanjl Westropp, C.J.,
and AT. Harridas, J...1 L. Rep. 1 Bom, 567.
1877.
8. Incontinen ee — S t ridhan .] Per Tur.
ner, C.J. (Offg).— Unchastity does not deprive
a Hindu woman from inheriting the property of
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DIGEST OF CASES.
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HBSTDU LAW DISQUALIFICATION
TO INHERIT— cordd.
her grandmother, whether that property was or
was not stridkan .
Per Pearson and Spankif, JJ.— Unchastity does
not preclude a Hindu woman from keeping
possession, by right of inheritance, of the stri-
dhan property left by her maternal grandmother.
Per OldfiHd, J.— Unchastity does not prevent
a Hindu woman from inheriting stridhan. Mu-
SAMUT GANGA JaTI V. GHA3ITA..X L. Bep. 1
All. 46,1878.
4. Incontinence of Widow after Vesting
of Estate creates no Forfeiture.] It is sufficient
for the protection of a Hindu widow's right to
her husband's estate from forfeiture by reason of
unchastity that such right has vested in her be-
fore her misconduct It is not necessary for
such protection that she should have acquired
possession of the estate before her misconduct-
Bhawani t. MahIad Kuar. Pearson and Old.
field, JJ L L.Bep.3 Alt 171.
Set Nbhalo v. Kishen Lai... .Ibid.
180.
Under Hindu Law— Inheritance—
Widow* . L
See Honama s. Timanbhat...L L.
Bep. 1 Bom. 889.
Under Hindu Law Maintenance of
Widow. 12.
B. Mother — Vndiastity — Inheritanci
in San.] A mother, guilty of unchastity before
the death of her son, is, by Hindu law, precluded
from inheriting his property. Ramnath Tola-
pattbo v. Dukoa Sundari Debj. /•Titter and
Maclean, JJ . ...L L. Bq>' 4 CaL 860, 1878.
6. Leprosy.] Incurable leprosy of the
sanious or ulcerous type, supervening at any
time before partition, excludes the person afflict-
ed with it from sharing in the ancestral estate-
Akanta v Ramabai. Westrapp, CJ. and N.
Harridas, J... I. L. Bep. X Bom. 684, 1877.
7. Hindu Widow— Maintenance — Loss
of Caste.'] Since Act XXI. of 1850 came into
force, mere loss of caste does not occasion a
forfeiture of rights or property. Honama v.
Ti hanbhaT. Westrapp, C.J., and N. Harridas,
] ...L L. Bep. 1 Bom. 859, 1877.
S. C. under Hindu Law- Mainte-
nance of Widow. W.
HINDU LAW — DIVORCE — Custom.']
Where a Hindu husband sued his wife for restita-
ionof conjugal rights, and the defendant pleaded
divorce, it was Held, that though the Hindu law
does not contemplate divorce, still, in those dis-
: where it is recognized as an established
custom, it would have the force of law. Kuno-
:BE Dosser tr. JoTEERAM Kolita. Kemp and
Lawford,]] L L. Bep. 8 CaL 305, 18 77.
HINDU LAW— ENDOWMENT.
See Dewuttur.
HINDU LAW-EBCHKAT.
Ranee Sou vet v. Merza Hiaf-
mut...L. Bop. 3 L A. 93.
HINDU LAW— FOBFETTUKB OF WI-
DOWS KBT ATS- Right of Reversioner.] In
a suit brought by one of the two next reversioners
of one L, deceased, against H., the other rever-
sioner, and the widow of L, to establish his
right to and to recover possession of half of L.'s
property, it appeared that the plaintiff, //., and
L. were three brothers who had separated in
estate after their father's death; that on L..'s
death, H., with the consent of l.'s widow, who
alleged that her husband and H. were undivided
in estate, took possession of L.'s estate as his
heir 1 — Held, that the act of L.'s widow divesting
herself of her interest in the estate in favour of
//, did not operate as a forfeiture, so as to bring;
in the reversionary heirs; and that H.'s posses-
sion could not on that ground be interfered with
during the widow's life ; and no other ground for
interference being alleged, the claim was dis-
missed, it being one asking fora declaration of a
present right and possession in the property ; nor
could the Court declare that the plaintiff would
have a right of succession after the widow's
death, but any reversionary rights which he
might hereafter succeed in establishing would
not be affected by the widow's divesting herself
of her interest in favour of //. Pbao Das ■.
Hahi Kishen. Pearson and Turner, JJ I. L,.
Bop. 1 AIL 80S, 1877.
S. C under Hindu Luw— Partition.
HINDU LAW GIFT.
Set Hindu Law— Alienation by
Widow. 8.
MadhatAraya *. TtRTRA Sahi...
LL. Bap. 1 Had. 807.
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DIGEST OF CASES.
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HUTDU I*AW-GlPT-n«M.
Gift by Husband during his Lifetime of all
his Estate — Liability of Donee to main-
tain Donor's Widow.
Sea Hindu Law— Maintenance of
Widow. 17.
Jamnas. MackulSahu I. It.
Sep. 8 All. 316.
1. Gift by Father of Self -acquired Im-
moveable Properly to ana San to exclusion of other
Sons.'] Although in a Hindu family governed
by the MiUkshara law, a sale by the father of
self. acquired immoveable property, or a gift of
such property to one son to the exclusion of the
other sons, may be wrong, and contrary perhaps
to the spirit of the Hindu law, as prejudicing
the rights of the sons, or tending to limit their
means of. support, there is no declaration in the
Mitaksbara that the sale or gift so made would
be absolutely void, because the vendor or donor
had no power to make it, and the rulings of the
Courts have recognized the principle that,
though prohibition of certain acts may be im-
plied, yet, where it is not declared that there is
absolutely no power to do them, those acts, if
done, are not necessarily void.
Where, therefore the father of a Hindu family
living under the Mitakshara law, made a gift of
certain self-acquired immoveable property to
one of his sons, in a suit brought by the other
son, to avoid the gift : —
Held, that the gift was not illegal under the
Hindu law, and the suit was therefore dismissed.
SlTAL «. M Anno. Spankie and Oldfieid, JJ...X. L.
Bep. 1 AIL 384, 1877.
8. Undivided Family— Sola of Share of
Member of- — Gift by remaining Members."] The
share of certain members of an undivided Hindu
family, in the joint ancestral family property _
having been sold to the defendant in execution
of a decree obtained against them, the other
members of the family subsequently made a
verbal gift of their shares of the property to the
pbnntiff. In a suit for partition brought by the
plaintiff against the defendant : —
Held, the auction purchase by the defendant,
by introducing a stranger as owner of the rights
and interests of two of the members of the
divided family, broke up the constitution of the
family as an undivided family. The joint Hindi
fatuity is constituted by the union of descendants
by heirship from some common ancestor, and
41
HINDU LAW— GIFT —tontd.
there must be connection among its members by
blood, relationship, adoption, and marriage.
Property held in such copartnership will be
joint family property; the introduction of
strangers in blood by auction purchase necessa-
rily breaks up the family relation. The gift to
the plaintiff, therefore, was valid. Ballabh
Das ». Sundes Das. spaniie and Oldfieid, JJ .
L L. Bep. 1 AIL 489, 1877.
8- — — Res judicata — Separata Property —
Gift to Wife— Sttidhao— Widow's Pomwr of
Alienation.] C, a H indu subject to the Mitakshara
law, died, leaving two widows, R. and G. Shortly
before his death he had transferred to R., by
sale and gift, certain manias of which he was
recorded as the sole proprietor. Among the
mamas transferred by gift waa the property in
question, the mauza of Ranipur. After C.'s
death, J. and P., his brothers, sued R. and G.
for possession of C.'s estate, alleging that it was
ancestral property to which they were entitled
succeed as heirs to exclusion of the widows.
The suit was dismissed on appeal by the Sudder
Court, which held that the property of which C.
was recorded as the sole proprietor was his se-
parate property. On a review of this decision
the Sudder Court held that the mauzas sold by
C. to R. became her absolute property, her
alienation of which could not be impeached by
the then plaintiffs, y. and P., who, however, had
title to be regarded as the reversioners after
JP.'s death of the other mauzas received by gift
inherited by her from C, and were competent,
such, to impeach any transfer thereof to
other parties. The Sudder Court also held
that it was unnecessary to consider the validity
of the gift by C. to R., inasmuch as the mauzas
conveyed by it would devolve on C.'s widow R.
by the Hindu law of succession, as being the
separate property of C
J. and P. having died, R. made a gift of the
mauza Ranipur to her agent as a reward for his
faithful services. N; the son of J., sued, as
the heir of his uncle C, to set aside this gift to the
agent as illegal, alleging that the property be-
longed to C. as a separate estate, and that his
widow R. succeeded to it on bis death and took
a life interest therein : —
Held, that it might be that the decision in the
former suit had not the effect of res judicata,
since the plaintiff did not come in through or
under his father when be was suing as next heir
to his uncle.
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DIGEST OF CASES.
HINDU LAW— GDT-oHiftf-
Held also, on the evidence, that R. had ac-
quired the property in suit by gift from her
husband ; so much, therefore, of the plaintiffs
case as rested the claim on the allegation that
R. succeeded as heir to her husband, (ailed, but
nevertheless the plaintiff was entitled to sue-
For, admitting that R- obtained the estate by
gift, by the Hindu law she had no absolute
power over immoveables given by her husband.
Immoveable property given to a wife by a hus-
band is held on terms similar to those on which
property inherited from a husband is held, and
her acts in respect of it are liable to quest)
similar manner by the next heirs. And the
plaintiff was in a position to question the aliena-
tion by R. as next heir, whether the property
was held to be her stridkan, or held subject
the ordinary succession of property inherited
from ber husband.
Held, also, that the gift to the agent, being
made only from motives of generosity, was in.
valid. Rudh Nakain Singh «. Rup Khar.
Pearson and (Xdfield, JJ I. L. Bap. 1 All.
734, 1878.
HINDU LAW - QUABDIANBHIP-
Adopted Son— Natural Father.] The natural
father of a son who has been adopted into another
family, is not by Hindu law his proper guardian
when either of the adoptive parents is living, if
such adoptive parent be willing to act as guar-
dian. The residence of the minor with the adop-
tive parents is a part of the consideration for
their adoption of him, and unless ill-treatment
of a serious character, or incompetency, on
their part be established, they and the survivor
of them are the proper guardians. Lakshwbai
v. Skridhar Vasadev Takle. Westropp, C.J.,
Ko&Metmtt,] LL. Bep. 3 Bom. 1, 1878.
HINDU LAW-HUSBAND AND WIFE
See Beetitution of Conjugal
Bighta. 3.
YaHUHABAI b- N ARRAY Alt... I. L.
Bep. 1 Bom. 164.
See Hindu Law— Divorce.
KUDOMCF. t>. JOTEBRAH. I. L.
Bep. 8 CaL 306.
HINDU LAW— HUSBAND AND WIFNJ
Marriage in Antra Form.
See Hindu Law— Marriage in
Antra Form. '
JaIKISONDAHS *. HARKI30NUAS...X.
L. Bap. S Bom. 0-
Wife's Power to contract
Set Hindu Law— Capacity of Mar-
ried Woman to Contract.
Nathubmai o. Javheb L I*.
Bep. 1 Bom. 131.
Wife's Right to Separate Maintenance.
See Hindu Law— Maintenance off
Wife. 8. 4.
Wife absenting herself from Hasbanti.']
The mere circumstance that a Hindu marries a
second wife in the lifetime of his first wife, will
not justify the latter in leaving him. Per AT.
Harridae, }., in Natkubhai Bhailalo. Javheb
Raiji L L, Bep. 1 Bom. 181, 1»».
S. C. under Hindu Law— Capacity
of Married Woman to Contract.
HINDU LAW — ILLEGITIMATE SOBT
— Right of — to inherit.
See the cases under Hindu Law —
Inheritance — Illegitimate)
Son.
Right of — to maintenance.
See the cases under Hindu Law —
Maintenance of Illegitimate
Bon.
HINDU LAW — DXPABTIBLB FBO-
PEBTT— The impartiality of property doe a
not destroy its nature as joint family property,
or render it the separate estate of the last
holder, so as to destroy the right of another
member of the joint family to succeed to it in
preference to those who would be his heirs if the
property were separate. Dooboa Persad Simcii
n. Dooroa KoHWAKt...L L. Bep. 4 CaL 1BO ;
L. B. 0 I. A. 149 ; 8 Cat Bep. 31, 1878.
S. C. under Declarator/ Decree. S.
And Bet Judicata. 4.
HINDU LAW — INCONTINENCE ON
WIDOW.
See Hindu Law -Disqualification
to Inherit. 3. 4. 5. 7.
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DIGEST OF CASES.
< 618 )
HINDU LAW - INFANT — Liability of
Infant for Debts incurred in Ancestral
Trade carried on for his Benefit.
See Hindu Law— Ancestral Trade.
JOTKISTO COWAR n. NlTTYANUND
Nundy...L Ik Rep. 8CbL
7f
HINDU LAW — INHERITANCE
ADOPTED BOH — Succession of to Adoptive
Mother's Estate.'] An adopted son, under the
Dattaka Mimamsa and Mitakshara succeeds
the property which has descended to his adopt i
mother as heiress of her father. Sham Kuar
.. Gaya Din...L L.Rep.l AIL 9W, 1876,
F.B.
HINDU LAW — INHERITANCE
ASCETIC— Succession to the Property of Asce-
tics] The principle of succession upon which
one member of an order of ascetics succeeds
another is based entirely on fellowship a
personal association with that other, and
stranger, though of the same order, is excluded.
Khuggendbr Narain Chowdhkv c Sharup-
dir Oghorenath. Morris and Prinsep, JJ...I.
L. Rep. 4 Cal. 043, 1878.
HIND U LAW — INHERITANCE —
BROTHER— Undivided Family — Ne-
Set Hindu Law — Inheritance —
Nephew*.
Bhihul Doss u. Choonhe Lall...
L L. Rep. S Cal. 370.
1. Bengal Law — Brothers — Half.
Brothers."] In Bengal the brother of the whole
blood succeeds, in the case of an undivided im-
moveable estate, in preference to a brother of
the half-blood.
Tiluck Chunder Roy v. Ram Lukhu Dosser (2
W. Rep. 41), KytasH Chunder Sircar v. Coorao
Chum Sircar (3. W. Rep. 43), and Shib Narain
Bote v. Ram Nidhu Base (9 W. Rep.87) overrul-
ed. Rajkishore Lahoory v. Govind Chunder
LAHOORY...L L. Rep. 1 Cal. 27, 1867, V. B. j
S. C. 94 W. Rep. 934 ; L. Rep. 4 1. A. 163,
9. — Succession of Half-Brothtr in a yoint
Family — Doyttbhaga.] According to the Daya.
bhaga a brother of the whole blood in a joint
family succeeds in preference to a brother of the
half-blood to the share of a deceased brother.
e Lahoory v. Qobind Chunder Lahoory
HINDU LAW — INHERITANCE —
perty, and if she have
(I. I.. Rep. 1 CaL aj ; 34 W. Rep. 334 ; and L. lof it during her lifetime, 1
Rep. 4 1. A. 153, note) approved. Shro Soon-
darv v. Pirthee Sing... L, Rep. 4 1 A. 147.
8. —i— Undivided Family— Brothers — ]fr-
pmHn.} When in an undivided Hindu family
living under the Mitahshara law, a brother dies
without leaving issue, but leaving brothers, and
nephews, the sons of a predeceased brother, the
interest in the joint estate of the brother so dying
does not pass on his death to his surviving
brothers, but on partition, the whole estate, in-
cluding the interest of the brother so dying, is
divisible ; and the right of representation secures
to the sons or grandsons of a deceased brother,
the share which their father or grandfather would
have taken, had he survived the period of distri-
bution. Ifadho Singh v. Bindessrry Roy (H. C,
Rep. N.-W. P. 1868, p. 101) overruled. Deb!
Parshad v. Thakur Dial... I. L. Rep. 1 All.
10S, 1876, V. B.
Followed in Bhimul Doss if- Ckoonek
Lall I. L. Rep. 2 Cal. 379.
See Hindu Law — Inheritance —
Nephews.
HINDU LAW — INHERITANCE —
BROTHER'S DAUGHTER'S SON —
Brother's Daughter's Son — Great -Grandson of
Grandfather.'] The great-grandson of the grand-
father of a deceased Hindu is, according to the
Dayabhaga, entitled to succeed to his estate, in
preference to the brother's daughter's son. Jug-
cut Narrain Singh*. The Collector of Man-
hhoom. Garth, C. J., and Morris, J LI,
Rep- 4 Cal. 413, n., 1877.
See also in the matter of the Petition
of OODOYCHURN MlTTER. Ibid.,
p. 411.
Under Certificate to collect Debts. 1.
HINDU LAW — INHERITANCE —
DAUGHTERS.
See Hindu Law — Inheritance —
Daughter's Sons. 9.
Baijnathp.Mahabjr.LL. Rep.
1 AH. 60S.
1. Daughter's Estate— Wilt.] Aecord-
to Hindu law in the Bombay Presidency, a
daughter succeeding to her father takes an abso-
several estate in his immoveable pro-
a .t „i.« ».->.,.. nn Um^ may make a gift
devise it by will ;
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DIGEST OF CASES-
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HINDU LAW - INHERITANCE —
DATJGHTKBB-fonW.
and the devisee will be entitled to hold it against
her own or her father's heirs. H aribat h. Da-
MODARBHAT. Wrst'ofip, C- J-, and West, J. ..I.
L. Bop. 3 Bom. 171, 1878.
Followed in Babaji r. Balaji...L L.
Bop. B Bom. C60.
See Bulaudas *. Kbshavlal...I. L.
Bop. 6 Bom. 80.
3. Daughter's Succession by Survivor-
ship not defeated by becoming a Childless Wh*W.]
Although a daughter, who is a childless widow,
is incompetent, according to the Bengal school,
to take hy inheritance from her father, yet where
two daughters have already succeeded jointly
by inheritance to their father's estate, and at
the death of one of them the survivor is a child-
less widow, the latter will nevertheless take by
survivorship the whole estate. Her disqualifi-
cation to inherit existing at the death of her
sister does not destroy the heritable right which
has once vested, nor the right of succession by
survivorship to her sister, which is incident
thereto. Aummtolall. Boss v. Rajonhekant
mitter l.;bop. a i a. ii8 j as w. b.
814 ; 16 Bong. L. B. 10, 1874-
S. C. under Admission, and under
Hindu Law — Inheritance —
Daughter'* Bon, and under
Limitation. 18.
8. Hindu Law of Benares — Succession
of Indigent Daughter though a Childless Widow.']
According to Hindu law, as it obtains in Benares,
failing a maiden daughter, the succession to a
deceased father's estate devolves on the married
daughter who is indigent, to the exclusion of the
wealthy daughters, and the indigent daughter
does not lose her right of succession by becom.
ing a childless widow in her father's lifetime ;
nor in the case of inheritance by daughters is
any preference given to a daughter who has, or
is likely to have, male issue, over a daughter
who is barren or a childless widow. SkIMATi
Uua Devi *. Gokoolanund Das Mahapatra...
L. Bap. ft I. A. 40, 1878.
S. C lit. B«p. 8 Cal. 687, sub nam.
Wooma Daee e. Gokoolanund
Das.
S. C. under Hindu Law— Adoption.
HINDU LAV - XNHXBIT ANCB —
DAUGHTERS- contd.
4. MitaJtshar* Law— Stridhan.] Under
the Hitakshara law a daughter's estate inherited
from her father is a limited and restricted estate
only, and not stridhan. On her death the next
heirs of her father succeed to it, and not her
husband or other heirs. Chotav Lall •. Chun-
noo Lall...L. Rep. 8 1. A. 16, 1878 ; 1. L.
Bop. 4 Cal. 744 ; 8 Cal. Bop. 486.
S. C. under Jain Law. 8.
6. — Comparative proverty is the onry
criterion for settling the claims of daughter*
on their father's estate. Bakubai v. Manck-
habtd (2 Bom. H. C. Rep, 5) and Poli v. Naro.
turn Bafu <6 Bom, H. C. Rep. 1*3) followed.
Where, therefore, two of four daughters
brought suits claiming each s moiety of their
father's estate, to the exclusion of the two re-
maining daughters and such remaining daughters
resisted those suits on the ground that they
were entitled to the whole estate, being poor
and needy, while their sisters were rich, and it
was found that such remaining daughter* were,
as compared with their sisters, poor and needy,
the Court dismissed the suits. Audh Kubabi v.
Chandra Dai. Pearson and Oldfield, JJ...L L.
Bep. 2 All. 681, 1879.
HINDU LAW — INHERITANCE —
DAUGHTER'S BON 8— A daughter's son is
entitled by Hindu law to succeed as heir to
his maternal grandfather's estate, so long as any
daughter not disqualified, or in whom a right of
inheritance has once vested, survives. Aunri-
toi.au. BoSE v. RajonrexAHt Mrmn.. T,.
Bop. SLA. 118, 1874.
S. C under Admission and Hindu
X. aw- -Inheritance— Daugh-
ters 2. limitation. 18.
3. Succession of Daughters— Beirsum-
ers.'j A daughter's sou is not entitled by Hindu
law to succeed as heir to his maternal grand-
father's estate, so long as any daughter not
disqualified, or in whom a right of inheritance
is once vested, survives.
Where, therefore, B. died leaving two daugh.
rs B. and P., and P. died shortly after her
father, leaving two sons B. and M., minors, and
ibsequently to her deatb B., as the guardian
of her minor sons, and A., as the guardian of
minor sons, executed a mortgage of eer-
immoveable property, part of the estate of
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DIGEST OF CASE9.
HINDU LAW — INHERITANCE -
DAUGHTER'S SON B— con Id.
R.,—Held, that a suit brought during the life-
time of B. by her sons and by the sons of P.
to set aside the mortgage and recover possession
of the property was not maintainable. Amri-
total Bose v. RajoneeXant Milter (L. Rep. 3 I. A.
II3j 15 Beng. L. Rep. 10; 33 W. Rep. 314)
followed. Baijnathv. Mahabik. Stuart, C.J.,
and Sfantie, J ...I. L. Rap. 1 AIL 008, 1878.
HINDU LAW - INHERITANCE —
FATHER'S SISTER'S SON — Bandhus-
Samanodakas — Sapindas — Great-Grandson of
Common Ancestor — Appointed Daughter.] The
great-grandson of the great-great-grandfather of
a deceased Hindu, is by Hindu law entitled
succeed in preference to the father's sister's so
The former, whether a sapinda or samanadai
is in one of those two classes, and, whether
one or the other, is in the line of male descend-
ants from the common ancestor, which must be
exhausted before the bandkus are resorted to, i
order to discover the heir of the last proprietoi
Supposing that the custom of the appointment
by a sunless father, of a daughter, or her son
a substitution for a son, still exists, yet, inas-
much as it breaks in upon the general rules of
succession, whenever an heir claims to succeed
by virtue of that rule, he must bring himself
very clearly within it. From the text of Ma
Ch. IX., Sec 137, it would appear that the
of appointment must proceed from the father
himself, and be made by him ; and it would requii
positive law, or evidence of custom from which
the law may be presumed, that, supposing the
rule still to exist that a father may appoint a
daughter for this purpose, it is a part of it that
he may delegate the appointmen to his son;
Held, therefore, that the father's sister's
could not set up that his mother was appointed
after her father's death as a special daughter
from whom might proceed a son who should
stand in the place of a son's son. Thakoor
Jerbnath Singh v. The Court of Wards...L.
Rep. a I. A. 1«3 ; as W, R. 409 ; 15
Beng. R. L. 190, 1875.
HINDU LAW — INHERITANCE —
GRANDSON OF FATHER'S
BROTHER — Excludes Brother's
Daughter's Son.
St* Certificate to collect Debt*. 1.
OODOVCHIJBN MlTTIR L L.
Sep. 4 OaL 411.
HINDU LAW — INHERITANCE —
HALF-BROTHER- Full Sister pre-
ferred to— Separated.
See Hindu Law— Inheritance—
Slater. 1.
Sakhabam S. Adhikari «. Sita-
bai I. L. Rep, 8 Bom.
368.
HINDU LAW — INHERITANCE —
ILLEarnMATB SON — Sudras.-] The
ordinary Hindu law of inheritance relating to
Sudras admitsan illegitimate son to a half-share
with legitimate sons ; and if there be no legiti-
mate son, and no legitimate daughter, or son of
such daughter, the illegitimate son by a female
slave or continuous concubine takes the whole
estate. If there be a legitimate daughter, or
legitimate son of such a daughter, the illegiti-
mate son would take only half the share of a
legitimate son ; and such daughter or daughter's
son would take the residue of the property sub-
ject to the charge of maintaining the widow of
the deceased proprietor. Per Westropp, C.J., in
Gopal Narhar Sahbay e. Hahhaht Games h
Safrav I. L. Rep. 8 Bom. 373-388,
fl. — Bengal Lav — Sudras — Marriage
between Persons of different Castes.'] According
to the doctrine of the Bengal school of Hindu
law, a certain description only of illegitimate
sons of a Sudra by an unmarried Sudra woman
is entitled to inherit the father's property in the
absence of legitimate issue, «#., the illegitimate
ms of a Sudra by his female slave or a female of
Per Hitter, J. — A valid marriage between
persons in different sub-divisions of the Sudra
mpossible unless sanctioned by any
peculiar social custom governing them, and no
presumption la favour of the validity of such a
marriage can be made, though long cohabitation
has existed between the parties.
Per Markby, J — Quart, whether there is any
legal restriction upon such a marriage. Na-
rain Dhaju b. Rakhal Gain. Markby and
Mitter,]] I. L. Rep. ICal. 1,1875.
S, C. under Hindu Law— Marriage.
. Sudras— Concubine — Female Slave.'}
Under the Mitakshan. law, a son begotten of a
female slave, by a Sudra, takes the whole estate,
if there be no sons of a wedded wife, or daugh-
of such a wife, or sons of daughters ; but if
there be any of the above-named heirs, the son
of a female slave will participate for half a share
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DIGEST OF CASES.
HINDU LAW - INHERITANCE -
ILLEGITIMATE SON-nwW.
only. There is no distinction between a son
bom to a Sudra of a slave and of a concubine.
The i I legitimate offspring of a kept woman or
continuous concubine amongst Sudras are on
the same level as to inheritance as the issue of a
female slave by a Sudra.
Held, therefore, that the plaintiff, the illegiti-
mate sou of an Ahir by a continuous concubine,
was entitled to succeed to his deceased father's
estate in preference to a daughter of a legiti-
mate son of his father who died in his father's
life-time. Sarasuti v. Mamu. Pearson and
Oldfitld, JJ I. L. Bap. a AIL 134, 1879.
S. C. under Declaratory DecxAa. 14.
4. Sudras — Maintenance — Dasi Putra.]
The general result of the authorities,
juridical and forensic, is that amongst the three
regenerate classes of Hindus (Brahmans,
Kshatriyas, and Vaishyas) illegitimate children
are entitled to maintenance ; but unless there
be local usage to the contrary, cannot inherit,
and that amongst the Sudra class, illegitimate
children, in certain cases at least, do inherit.
Vijnyanesvara, the author ot the Mitakshara,
holds that, amongst Sudras, the father of an ille-
gitimate son by a Dasi, may in his (the father's,)
lifetime allot to such son a share equal to that of
a legitimate son ; and if the father die without
making such an allotment, the illegitimate son
by the Dasi is entitled to half the share of a
legitimate son ; and if there be no legitimate
son, and no legitimate daughter or son of such
a daughter, the illegitimate son by the Dasi takes
the whole estate. If, however, there be a
legitimate daughter, or legitimate son of such a
daughter, the illegitimate son would take only
half the share of a legitimate son; and such
daughter or daughter's son would take the
residue of the property, subject to the charge of
maintaining the widow of the deceased pro.
The law administered in this Presidency has
been in accordance with this doctrine. The
dictum of Lord Cairns at 13 Moo. I. A., p. 506,
in Sri Gajapatki Radhiia Patta v. Sri Gajapalhi
NUamani Patta Matin. Dni -. — "Supposing the
sons, or either of them, to have been legitimate,
the widow (of Padmanbha) could have been
entitled to maintenance only. Had both sons
been illegitimate, their claim, unless some
special custom governed the case, would have
HINDU LAW — INHERITANCE —
ILLEaiTIlf ATE BOV-timtd.
been to maintenance only. In this last-named
case the widow would have had the ordinary
estate of a Hindu widow," — on the supposition
that Padmanbha was a Sudra, as erroneously
stated in the marginal note, could not be recon-
ciled with any school of Hindu law ; but on tlie
supposition that when so speaking, Lord Cairns
was regarding the status of these sons from tbe
same point of view as that of the Madras High
Court, — vur., as illegitimate sons of a Rajput,
the dictum would be completely in accordance
with Hindu law.
The condition that in order to entitle the
illegitimate offspring of a Sudra woman by a
Sudra to inherit the property of the ratter, or
a share in it, she should never have been mar-
ried, has in practice been discarded in the Bom-
bay Presidency.
The custom of remarriage of wives and wi-
dows, called Pit amongst Marat has, and NStra.
amongst the inhabitants of Gujarat, considered.
The sons of a Punarbhu {twice-married
woman) by a duly contracted Pit marriage, i-e.,
in accordance with tbe custom of the caste, are
legitimate ; and rank, as to the right of inherit-
ance and extent of shares, on a par with the
sons by a Lagna marriage (i.e., first marriage
of a woman).
In the Bombay Presidency, under ordinary cir-
cumstances amongst Sudras, tbe illegitimate off-
spring of a kept woman, or continuous concubine,
e on the same level as to inheritance as the
sue of a female slave by a Sudra.
C, a Sudra woman, was married to 'J'., also a
Sudra, by Pit marriage, without having received
choT-ckitki from her first husband, who was
then living, or any other sanction from him of
her marriage to T. 1—
Held, that the intercourse between G. and T.
as adulterous, and that the plaintiff, being the
sue thereof, could not take as heir, even to the
extent of half a share, and was not a Dasi putra
within the scope of Yajnyavalkya's text, or re-
cognized as such by the commentators, but that,
having been recognized as Ms son by T., the
plaintiff was entitled to maintenance ; and the
Lower Court was directed to fix a liberal and
suitable maintenance, having due regard to the
extent and value of T.'t estate. RahikGovind
TatA. Wcstnpp, C.J., and Larptnt, ] I. L.
Bop. I Bom. 97, 1878.
D,gltlzed by G00gle
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DIGEST OF CASES.
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Hnrsv law
ILLEGITIMATE BON— amid.
5. Gosavis — • Cuttom — Maintenance-]
The rule laid down in Rahi v. Gotind (I. L. Rep.
I Bom. 97) that among the three regenerate
classes, «u-, Brehmans, Kshatriyas, and Vaish.
yua, illegitimate children cannot inherit, unless
there be a local usage to the contrary, is appli-
cable to Gosavis.
A custom recognizing a right of heirship in
the son of a Gosavi by a woman who in the
lifetime of hex previous husband, and without
his consent, had married the Gosavi, would be a
The right of an illegitimate son to mainte-
nance out of his deceased father's property cannot
be decided in a suit which concerns only a
portion of that property, and to which all persons
in possession of the rest of the father's property
are not parties. Narayan Bharthi e. Laving
BHARTHI. Westropj>,C.}.,*n&tfelvill, J. .XL.
Hep. S Bom. 140, 1877.
6. Sudrat- -Adultery.] The illegiti-
mate son of a Sudra by a woman who was a
married woman at the time of her forming an
adulterous connexion with his father, is not
entitled to inherit, but on ly to maintenance out
of bis father's estate. Virakuthi Udavan «.
SlNGAJUVRLU. Kindersley and Busteed, JJ...L
L. Hep. 1 Mad. 306, 1877.
HINDU LAV — INHKEITANCE -
MISSING PEBSOH — Presumption
of Death.
See Evidence. 31.
Parmkshar e. BisheshaR -X L.
Sep. 1 All. OS.
HINDU LAW — INHERITANCE —
MOTHER, — Unchastity of — excludes
from Inheritance to Son.
See Hindu Law— DUqn ariflrMion
to Inherit. 6,
Ramnathv. Duroa Sundari.
L L. Rep. 4 Cat
660.
— — Bitot* of tf other succeeding to her Son —
Immoveable Properly.] It is settled law that a
mother succeeding as heir to her son, takes only
such a limited estate in his immoveable property,
as a Hindu widow takes in the immoveable pro-
perty of her husband dying without leaving
male issue, and that on her death her son's heir
is the person who succeeds to such property.
HINDU LAW - INHEBITANCE —
MOTHER— contd.
Sakharau Sadashiv Adhikari V, SlTABAI,
Westrapp,C.].,aad Kemiall, J... I. L. Sop. 8
Bom. S68, 1879.
S. C. under Hindu Law -Inherit-
ance Sister. 1.
HINDU LAW — INHERITANCE —
NEPHEWS — Undivided Family —
Right of Nephews to succeed to Estate of
Deceased Uncle.
, See Hindu Law — Inheritance —
Brothers. 3.
Debi Parshad «r. Thakur
D1AL...I. L.H.op.1 All.
106.
Mitakshara Law — Undivided Family —
Inheritance — Brothers- -Nephews."] In an undi*
vided Hindu family governed by the Mitak-
shara law, if a brother dies leaving no issue, but
leaving brothers and orphan nephews, who are
members of the joint family, his interest in the
family property does not pass to the surviving
brothers to the exclusion of the orphan nephews,
but the latter take by representation the share
that their deceased father or fathers would have
taken had he or they survived. Debi Parshad v.
Thakur Dial (1. L. Rep. I All. 105) followed.
BhihulDoss* Choonee Lall..X L. Rep. a
CaL 379, 1877, P. B.
HINDU L AW - INHERITANCE-PHI.
MOGENTTUBE— Impartible Talook- -Kola-
cliar — Family Cuttom— Mitakshara Lam.'] A
custom of descent according to the law of primo-
geniture may exist by Koiathar or family cus-
tom, although the estate may not be what is tech-
nically known either as a Raj in the north of
India, or as a Polliam in the south of India,
Where the family, to which ancestral Impartible
property belongs, is governed by the law of the
Mitakshara, that taw in the event of a holder
dying without male issue would*, if the family be
undivided, give the succession to the next col-
lateral male heir in preference to the widow or
daughters of the last possessor. Such property
while the family remains a joint and undivided
family in the full sense of the term, cannot be
treated as separate property. Katama Natchiar
v. The Rajah of Shi-vagunga (o Moo. I. A. 530)
approved.
D,gltlzed by G00gle
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DIGEST OF CASES.
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HINDU LAW-nrHHUTAHOT— PBL
HOQBNITTJBB---w«M.
Whether the general status of the family be
joint or divided, properly which is joint wil1
follow one, and property which is separate wilt
follow soother course of succession.
Since in documents between Hindus and in
the Mitakshara itself it is not unusual to find the
leading members of a class alone mentioned
when it is intended to comprehend the whole
class, a written statement of a family custom,
whereby an impartible estate passes, in the event
of the holder dying without issue, to hit younger
brother or hit eldest ion, was construed, not as
confining the collateral succession tc
cases mentioned, but as providing generally that
on failure of the direct male line, the nearest
male heir in the collateral line should succeed.
Cmowdev Chintanan Sinoh •. Musst. Now-
lukho KONWASU...L. Bop. 3 I A. 868 ; 24
W, E. ASS, I87S.
S. C. I. L. Itop. 1 CaL 163, sub nam.
Chintakuk Singh », Now luk ho
Konwari.
HINDU LAW— INHEBirANCE-BK.
LIN«UriSHME6TT BY BOH.
Set Hindu Law— Belinqniahment
of Share by Son.
Balkrishha T. Trndulkar v. Sa-
VJTRIBAI...I.L. Rep. 3 Bom.
04.
HINDU LAW-INHEBITAWCE-SA-
NIASI8 — Guru — Chela.] Amongst the general
tribe of fakirs called Saniasis, a right of inherit-
ance, strictly so speaking, to the property of a
deceased guru, or spiritual preceptor, does not
exist; but the right of succession depends upon
the nomination of one among his disciples by
the deceased guru in his lifetime, which nomina-
tion is generally confirmed by the mahants of
the neighbourhood, assembled together. Where
no nomination has been made, the succession is
elective, the mahants and principal persons of
the sect in the neighbourhood choosing from
amongst the disciples of the deceased guru the
one who may appear to be the most qualified to
be his successor, installing him then and there on
the occasion of performing the funeral ceremonies
of the late guru.
Where, therefore, a chela sued for possession of
a village belonging to his deceased guru, found-
ing hia claim on his right of succession as chela,
HINDU LAW— HTHKRITANCX BA-
HTASIS—««W.
without alleging that be had been nominated by
the deceased a* his successor, and confirmed
afterwards, or that in consequence of the omis-
sion of the deceased to appoint the successor, be
bad been elected by the neighbouring mahants
and members of the sect, as successor to the
deceased ; —
Held, that such a suit was unsustainable.
Nirunjun Barthet v. Padarath Barthee (S. D.
A. N.-W. P. 1864, Vol. I., P. 511), followed.
Madho Dasb. Kauta Das. Pearson and Span-
He, JJ I. L. Hep. 1 All. 030, 1878.
HINDU LAW— INHEBJTANCE-BIS-
TEBS.
1. Right of Sister to inherit in pre-
ference to Half Brother.-] A Hindu died, pos-
sessed of immoveable property situated in the
District of Thana, in the Northern Konkan,
leaving him surviving, a mother, a full sister,
and a separated half-brother. His mother suc-
ceeded him as his heir, and held possession of the
property until her deatb, when his sister caused
her name to be entered in the Government books
as successor. In a suit by the half-brother for
a declaration of his right to the estate of his
deceased brother :
Held, that the full sister, and not the half.
brother, was entitled to succeed to the property
of ber deceased brother.
The decision in Vinayak Anandran v L/ikhs-
mibai (I Bom. H. C. Rep. 117, 1 26; S. C. 9 Moo.
I. A. 516; S. C 3 Cal. W. Rep. P. C. 41) must
be regarded as founded not only on the Mayukha,
but also on the special construction of the first
passage of Ch. II., Sec. IV. of the Mitakshara,
— " Un failure of the father, brethren share the
estate" given toit by Nanda Pandita and Balanv,
bhatta, as including sisters within the term
" brethren," and of general authority, and as
laying down the general rule of succession as to
the Bombay Presidency, except when
an invariable and ancient special usage to the
contrary is alleged and proved by him who
Semble, the law of the Mayukha should prevail
intlie Northern Konkan. Sakharau Sadashtv
AdHjkaki v. SlTABAi. Westropp, C.J., and Kern-
bait,] I. L. Eop. 3 Bom. 303, 1879.
Followed by the same Bench in Makantapa
v. Nilqangawa preferring the claim of a sister
D,gltlzed by G00gle
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DIGEST OF CASES.
HINDU LAW— INHERITANCE — SIB-
TERB-ronhf.
of the deceased to that of the widow of his
separated paternal uncle Ibid. 368,
S. C. under Hindu Law— Inheritance
—Mother. 1.
S. C. under Hindu taw -Authority
of Writera. 3.
3. Sister's Right to inherit—Virar,
trodaya.~\ Under the Hindu law prevailing
the Bombay Presidency, a sister succeeds to the
estate of her deceased brother in preference to :
separated and remote male relative of the de-
fer Westropp, C.J.— The Viramitrodaya is an
authority in Benares rather than in Bombay,
and its doctrine (if it be its doctrine) — that,
where there has been an intervening holder
between a brother and sister, or a father and
daughter, the inheritance opens, and the :
and daughter are excluded, and the next male
heirs come in — has not been followed in the
Bombay Presidency.
Vinayek Anandrav v. Lakshmibai (I Bom. 117,
126 1 S.C. 9 Moo. I. A. 561 ; and 3 W. Rep. P.
C. 41) followed. Dmondit Gurav it. Gangabai.
Westropp, C.J., and Melirill, J. ..I. L. Rep. 3
Bom. 860, 1879.
HINDU LAW — INHERITANCE -
STRIP HAN -The expression " family of h.
husband" in Chap. IV., Sec. III., pi. 10, of the
, Daya lihaga is wide enough to include the
husband's father's sister's son. With respect,
therefore, to propeity given to a married woman
after her marriage by her husband's father's
sister's son, the brother, mother, and father are
preferable heirs to the husband. Hurrymohun
ShahA v. ShonatuN Shaha. Jackson and Mc-
Donnell, JJ I. L. Rep. 1 Oal. 275, 1876.
HINDU LAW — INHERITANCE —
WIDOW— Of Separated Son.
See Hindu T-aw— Relinquish men t
Of Share by Son.
Balkrishna T. Tendulkar 9.
Savitricai L L. Rep. 3
Bom. 84.
— Of Separated Paternal Uncle postponed to
See Hindu Lav — Inheritance—
Sinter. 1.
MaHANTAPA if. Niuiahgawa.,.1.
L. Rep. 3 Bom. 388, n.
1. Incontinence — Forfeiture.'] Held
that under the Mitakshara law, a widow who has
once inherited the separate estate of her husband,
does not forfeit the same by reason of subsequent
incontinence. Kery Kolitany v. Moneeram
Kolitam Beng. L. Rep. 1 ; S. C 19 W. Rep.
367) followed. Nbhalo b. Kishbn Lal...L L.
Rep. 3 AIL ISO, 1879, F. B.
SwBhavani p. Maktab Kuar...
I. L. Rep. 3 All. 171.
Under Hindu Law— Disqualification,
to Inherit. 4.
See HONAMA V. TlMANBHAT.-I.
L. Rep. 1 Bom. 659.
Under Hindu Law— Maintenance of
Widow. 13.
3. Mitakshara Lan— Joint Estate of
«w or more Widows — Separate Enjoyment— Sur.
'ivorship.'] According to the Mitakshara law as
t prevails in Southern India, two or more law.
ul wives (patnis) take a joint estate for life in
their husband's property, with rights of survi-
ship and an equal beneficial enjoyment.
: view that the law of Southern India differs
this point from the law of Hindustan, and
that by the law of Southern India the senior
idow by date of marriage succeeds in the first
stance, the others inheriting in turn as they
irvive, but being in the mean timeonly entitled
to be maintained by the first, is not supported
by the decisions of the Courts, nor by the sanc-
ja of the Mitakshara or of any treatise of para-
ount authority in Madras.
Although widows so taking have no right to
enforce an absolute partition of the joint estate
:n them they have the power to arrange
parate enjoyment of their shares, their
respective rights by survivorship and otherwise
ning unaffected. Jijoijamba Bayi Sana v .
Kamakki Bayi Saha (3 Mad. H. C. Rep. 424)
affirmed. Sitt Gajapathi Nilamani Pata
a Devi Guru v. Sri Gajapathi Radha-
Patta Maha Devi Guru.L. Rep. 4 I.
A. SIS, 1877 ; L L. Rep. 1 Mad. 390; 1
Cal. Rep. 97.
[Note— At p. 221 L. R. 4 I. A. their Lordships
te, without disapproving it, the proposition of
the Chief Justice that "a case may be made out
■titling one of several widows to the relief of
iparate possession of a portion of the inherit.
ice. We have no doubt that such relief can
Digitized byGOOC^Ie
DIGEST OF CASES.
HINDU LAW-
and ought to be granted when, from the nature
Or situation of the property, and the conduct of
the co-widows or co-widow, it appears to be the
on1}1 proper and effectual mode of securing the
enjoyment of her distinct right to an equal share
of the benefits of the estate."
Set I. L. Itep. 1 Had. 300.
3. Widow a/ First Cousin— GotrajaSa.
pinda — Sapinda Relationship— Got raj a Sapin-
da.] In the Presidency and Island of Bombay,
the wife is a Sapinda as well, as a Gotraja of
her husband, and on bis death without leaving
a son or grandson, she, on the subsequent death
of his separated Sapinda. and in the absence of
any specially designated heir entitled to pre-
ference, ranks in the same place in order of
succession to the property of such deceased
Sapinda as her husband would have occupied
if living. Thus the widow of a first cousin
exports paternd of the deceased propositus was
held prior in order of a succession to a fifth
male cousin « parts paterni of the same.
That is to say, a wife becomes by marriage
a Gotraja Sapinda of her husband and his
Cotraja Sapindas, and as such succeeds next in
order to her deceased husband, representing a
collateral line, according to the lawof the Mitak-
shara. by which the widow of a Gotraja Sapinda
of a nearer collateral line is entitled to prece-
dence over the male Gotraja in a more remote
line. Lallubkai Bapubkai o. Mankuvardai.
X. L. Sep. 2 Bom. 389,
1876, F. B.
HINDU LAW— INTEREST — Dam-dupat,
Rule of, not applicable to Suits in Bengal
Mofussil.
See Interest. 4.
Debn Doyal Poramanick v. Kvlas
Chundeh Pal Crowd
I. L. Hep. 1 Cal.
1. Dam-dupat.] The Hindu Law rule of
dam-dupat docs not apply where the defendant
is other than a Hindu. Nanckand Hanskaj
v. Bapu Saheb Rustumbhai. Melvill and
Kimball,]} I. L. Bsp. 8 Bom. 131,1879.
Set this case under Ioterett. 6.
a. Decree.] The rule of Hind
which limits the amount of interest recoverable
at any one time to the amount of the principal,
does not apply to an amount recoverable
execution of a decree of a Civil Court. Bai-
Balcnandra i. Gopal Raohukath.
West and N. Harridas, JJ...L X* Rep. 1 Bom.
73, 1875.
3. Mortgage.'} But It does apply to a
tgage by a Hindu widow. Interest not
exceeding the principal allowed, following the
le of Dam-dupat. Ranchander Mankbsh-
ar if. Bkimrav Ravji. Westropp and Mtlvill,
JJ I. L. Bep. 1 Bom. 577, 1877.
HINDU LAW— LEGITIMACY— CUM
tern in Wedlock.] A child, born in wedlock, of
i Hindu husband and wife, is not rendered
. legitimate by the circumstance that he was
begotten before their marriage. The Collec-
tor of Tkichinopoly v. Lakkaman i.-.L. Bep.
1 L A. 282, 293 ; 14 Bang. L. R. 115 ; 21
W. B. 358, 1874.
S. C. under Folliem. 1.
HINDU LAW- LIABILITY OF AN-
CESTRAL ESTATE IN THE HANDS
OF THE HEIR, FOB THE DEBTS
OF THE ANCESTOR— Under the Mitak.
shara and the Mayukha, the son takes a vested
interest in ancestral estate at his birth, but that
interest is subject to the liability of the estate
for the debts of his father and grandfather.
It is settled law that even tbc ancestral pro-
perty of the father may be sold, either by himself
by a Civil Court having jurisdiction, in satis-
faction of the debts of the father, not contracted
al purposes, and that such sale will
bind sons in esse at the time of the sale.
GtrdAaree Loll v. Kanto Lalt (L. Rep. i I. A.
321 ; 14 Beng. L. Rep. 187 ; 22 W- Rep., Civ.
Rul. 56) followed. Narrayanacharya *. Narso
Krishna. Westropp, C.J., and Melvill, J...L
L. Rep. I Bom. 262, 1870.
See the cases under Hindu Law—
Alienation of Ancestral
Estate.
See Hindu Law— Undivided Fa-
mily. 3. 4. 7. 8.
See Limitation. 38a.
See Sale in Execution of Decree.
10. 15,
HINDU LAW— LIABILITY OF IN-
FANT FOR DEBTS INCURRED
IN ANCESTRAL TRADE, CAR-
RIED ON FOR HIS BENEFIT.
See Hindu Law— Ancestral Trade.
JOYKtSTO COWAR V. NlTTVANUND
N0HDV...1. L. Bep. 3 CaL
788.
Digitized byGOO^Ie
DIGEST OF CASES.
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See Hindu. Law— Alienation of
Ancestral Property. 1. 2-
3.4.5.
See Hindu Law— Undivided Fa-
mily. S. 4. 7. 8.
See Hindu Law— Li ability of An-
cestral Estate in the hands
of the Heirs for the Debts
of the Ancestors.
Narayan v. Narso ...I. L. Rep.
1 Bom. 202.
Sue Bale in Execution of Decree.
10. IS.
See Onus Proband!. 8.
Adurmony p. Chowhdrv Sib
Narain...L L. Hep. 3 Oal.
1.
HINDU LAW-LIABILITY OF UNDI-
VIDED HINDU FOB DEBTS OF
HIB DECEASED BBOTHBB.
See Hindu Law— Undivided Fa-
mily. 9.
NarsinbHaT v. Chenapa...L L,
Rep. 2 Bom. 479.
HINDU LAW- MAINTENANCE OF
ILLEGITIMATE SON.
See Hindu Law — Inheritance-
Illegitimate Son. 4. B.
Rami a. Govind L L. Hep. 1
Bom. 97.
Laving v. Bhakthi .X L. Rep.
2 Bom. 140.
L— Sudras— Adultery.} The illegitimate
son of a Sudta, his mother having been a mar-
ried woman at the time of her forming an adul.
9 intercourse with his father, is entitled- to
tenance out of his father's estate, but not to
inherit, Viramuthi Udavant- Siitgaravelu.
Kindersley and Hushed, JJ ...L L. Rep. 1 Had.
308, 1877.
2. Kshatriya.] An adult illegitimate son
of a Kshatriya by a woman not a dati of his
r, is not, by the Hindu law prevailing in
Bengal, entitled to maintenance from his father.
Nilhonev Singh Deo v. Banneshur. Jackson
ind miter, JJ I. L. Rep. 4 CaL 91, 1878.
-MAINTENANCE OF
HINDU LAW
BON.
1, Adult San.'] As a general role, per
haps, a Hindu is not bound to support a grown
up son : but where there is practically no family
property to bedivided, an adult Hindu legitimate
Son, though suffering from no disability, is enti
tied to maintenance from his father, who is ir
the enjoyment of an impartible pension grantee
by Government in lieu of a resumed Saranjam
Hrmatsing v. Ganpatsing (12 Bom. H. C. Rep.
94)followed: Pinhey,]., doubting thee
of the decision. Rahchandra S. Va<
Kharam G. VAGH. Mtrlvill and Pinhey, JJ...L L.
Rep. 2 Bom. 346, 1877.
2. ■ Partition.] "There is ground for
supposing that an adult Hindu, separated ii
estate from his father (and uncles), can, if he
fall into destitution, enforce a claim for
nance either against any one or more of them
personally, or against the residue of the family
estate left in their hands after he has received
his share on partition." Westropp, C.J., ii
Savitkibai v. Laxmibai ,.L L. Rep. 2 Bom.
573.690, 1878.
i, tfitaishara Law — Power 0/ Father to
alienate Ancestral Immoveable Property] The
father of the appellant, being the owner of an
estral estate consisting of five villages, and
ing at the time no legitimate son, but having
legitimate son, the respondent, granted to
the latter one of the said five villages by way of
tenance. Held that the illegitimate son of
rson belonging to one of the twice-born
es has a right to maintenance, and that in
assigning maintenance to the respondent, his
father was acting in the performance of a legal
obligation, and such assignment was therefore
Whether, under the Mitakshara law, a father
who has no child born to him is or is not com-
petent to alienate the whole or part of the an-
al estate ; whether the rights of unborn ahil-
are so preserved by the Mitakshara as to
render such an alienation unlawful,— their Lord-
ships did not consider it necessary to determine,
as the grant in this case would not fall within
the prohibition, supposing that a father having
no legitimate son is by the Mitakshara law
incompetent to alienate ancestral estate to a
stranger. Rajah Pabichatit. Zaljm Siscii ...L.
Rep. 4 L A. 169, 1S77; I, L. Rep. 3 Cal.
214.
4. Forties to Suit.] The right of an
illegitimate son of a Hindu to maintenance out
by Google
DIGEST OF CASES.
HINDU LAW-MAINTENANCE OF HXNDTT LAW — MAINTEN ANCE OF .
ILLEGITIMATE SON— amid. WIDOW— contd.
of his deceased father's estate, cannot be decid-
ed in a suit which concerns only a portion of that
estate, and to which all persons in possession of
the rest of the father's property are not parties-
Narrayan Bhakty e. Lavino Bharty. West,
ropp, C.J., and Mehitl, J ... L L. Bap. 2 Bom.
140, 1877.
HINDU LAW — MAINTENANCE OF
WIDOW.
Amount of.
See Hindu Law — Maintenance of
Widow. 8. 16. 18.
- Daughter- in. law.
See Hindu Law -
Widow. 8.
Maintenance of
Gift by husband of all his Estate— Liability
See Hindu Law — Maintenance of
Widow. 17.
Grant in lieu of — Resumption.
See Limitation. 8.
Petahber v. Nilmonv.,.1, L.
Bep. 3 Cal. 780.
Grant of money in lieu of — Land purchased
with, can be disposed of by Widow by
Will.
See Hindu Law— Alienation by
Widow. 4.
NeLLAIKUHARU V. MaRAKATHAM-
hal I. L. Bep. 1 Had.
168.
Limitation to Suit for.
See Hindu Law — Maintenance of
Widow. 4. 8. 8. 7.
See Limitation. 32. 33.
Multiplicity of Suits for.
See the cases under Multiplicity of
Suite.
Purchaser without Notice of Claim for.
See Hindu Law — Maintenance of
Widow. 1. 18.
Separate.
See Hindu Law — Maintenance of
Widow. 2. 3. 7.
Separate Residence no bar to.
&<■ Hindu Law — Maintenance of
Widow. 7. I
Varying Decree for.
See Hindu Law — Maintenance of
Widow. 10.
And see the cases under Multiplicity
of Suit*.
1. Maintenance of Widow — Charge on
the Inheritance — Bona fide Purchaser.] The
plaintiff, a Hindu widow, sued in 1862 I!., who
had succeeded to the estate of ber deceased
husband, for maintenance, and obtained a per-
sonal decree against him for the amount sued
for, but did not claim, or obtain, a declaration
that her maintenance was a charge upon her
husband's estates or any part thereof. B. paid
penance till 186S, when the principal
portion of the ancestral raj, which had been the
plaintiffs deceased husband's property, was sold
ion of a decree against B., and pur-
chased by M. without notice of the plaintiff's
laintenance. It did not appear whether
the whole of B.'s property was exhausted. No
/ments of maintenance having been made
the plaintiff since 1868, she instituted a suit
for maintenance against B. and M., and obtained
decree against both. M. appealed; —
Held, that the plaintiffs claim to maintenance
id not constitute a charge upon the estate of
her deceased husband so as to bind it in the
hands of a beni fide purchaser for value and
ithout notice of her claim.
The holder of a lien on specific property is in
different position from a person possessed of
a right which is held to constitute a charge on
the general estate of a deceased person. In the
former case an innocent purchase must be proved
before the prior charge can be defeated) in the
latter, the purchaser must be affected with
Held, also, that if the debts which led to the
le of the property in question were not entirely
the debts of B-, but were partly ancestral, then
the plaintiffs right to maintenance would be
subject to the payment of those debts, i.*., her
:laim to maintenance would be on the residue
ifter paying such debts, and would be regulated
by the amount thereof, and the other claims to
maintenance then valid.
Quare, whether the plaintiff by obtaining a
definite personal decree against B. did not modify
the nature of her right, so as to place herself in
an inferior position as regatds the lien over the
estate which she originally had.
D,„i„.db»Googlc
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DIGEST OF CASES-
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HINDU LAW - MAINTENANCE OF
WIDOW- con td.
Held, also, that there being nothing to show
that the whole of B.'s estate had been sold, and
as the plaintiffs first claim was on B„ it lay
her to show that his estate had been exhausted,
before she could come on the property in the
hands of the defendant if., and therefore on all
these grounds the plaintiffs suit as against M-
was not good. Adhiranee Narin Coomary v.
Shoka Mai.be Pat Mahadai. Jackson and
Hitter, JJ I. L. Rep. 1 Cal. 865, 1873.
2. Separate Maintenance— Arrears."]
The husband of the plaintiff (a Hindu widow)
having died in 1S67, the plaintiff immediately
went to reside with her parents. No demand of
maintenance was made by her on her husband'
family till 1876, when she sued her deceased
husband's coparceners for nine years' an
of money, alleged to have accrued due each
year, for her maintenance: —
Held, that the plaintiff having taken up her
residence permanently with her own family,
and never even asked for anything on account of
maintenance for many years, so as to create an
impression that she had abandoned any claim
she might have, and her family being in com-
fortable circumstances, while the defendants
were people of straitened means, it would be a
proper exercise of the discretion of the Court to
reject the claims to a money annuity. The widow
of a coparcener is not, in Bombay, entitled to her
husband's share as in Bengal, to use at her discre-
tion during her life. All she can strictly demand,
is a suitable subsistence when necessary, and
whatever is required to make such a demand
effectual. In the present case there seemed to
be no necessity, and the defendants were petty
traders on whom the burden of a fixed payment
might bear oppressively. If the plaintiff chose
to reside with her husband's family, they must
support her in such comfort as their means
Would allow ; but in the absence of special cir-
cumstances necessitating her withdrawal and
separate residence, she could not claim cash
payments from the defendants to enable her to
add to her luxuries while living apart. Ranch
Vinayako Yahunabai. West and Pinhey, JJ.
I. L. Hop. 3 Bom. 44, 1878.
Dissented from in Kasturbai v. Shivajiram
Devkurun...I. LEep, 3 Bom. 372, in/™, 3-
8, Separate Maintenance of Widow
voluntarily residing apart from her Husband's
HINDU LAW -MAINTENANCE OF
WIDOW— contd.
Family — Onus Proband i.J A Hindu widow
does not forfeit her right to maintenance out of
the family property chargeable therewith by
reason of non-residence with the family of her
husband, except such non-residence be for un-
chaste or immoral purposes. Where there is
family property available for maintenance, it
>n the parties resisting the claim to separate
tenance to show that the circumstances are
as to disentitle the widow thereto ; ex- gr.
she resides separately from her husband's
family for unchaste or immoral purposes, or that
the family property is so small as not reasonably
to admit of an allotment to her of a separate
The case of a wife is different from that of a
widow. The burden lies upon the wife to show
such special circumstances as entitled her to a
separate maintenance. Range Vinayak v. Ya-
munabai (I. L. Rep. 3 Bom. 44) dissented from.
Kasturbai b. Shivajiram Devkuruh. West-
ropp, CJ., and Metvill, J... I. L. Bop. 3 Bom.
S73, 1879.
on reference under j 575 of Act X. of 1877 up-
holding the opinion of Melvill, J., in opposition
to that of Pinhey, J.
4. Limitation Act IX. af 1871, Scktd.
II., Art. 12S- Demand and Refusal— Arrears-]
A Hindu widow has a legal right, irrespective of
demand and refusal, to recover arrears of main-
tenance to the extent allowed by the law of
limitation for the time being.
suits coming within the operation of Act
IX. of 1S71 she may recover arrears for any pe-
unless it appear that there has been a
demand and refusal, in which case she can re-
>ver arrears for 12 years only from the date of
ich demand and refusal. Jivi v. RAM] I.
Melmtt and Kemball, JJ ...L L. Hep. 3 Bom.
207, 1878.
J. Amount of Maintenance.'] In
determining the amount of maintenance to be
awarded to a Hindu widow, besides the value of
the husband's estate, the position and status of
the deceased husband and of the widow must be
considered.
The fact that the deceased husband had given
instructions for a will— which, however, was
- executed — bequeathing a certain sum to his
wife, may be taken into consideration, not as
Google
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DIGEST OF CASES.
HINDU LAW — MAINTENANCE OF
WIDOW— contd.
conclusive on the amount to be awarded, but as
affording some guide to the proper amount, if
A Court is not justified in reducing, as a fcindof
punishment for vexatious defence to a suit, the
amount of maintenance which it would otherwise
have awarded. Sue e mutt v NiTtokissoree
DoSSBB V. JOGENDRO NaUTH MuLL1CK...L.
Rep. 51. A. 55, 1878.
6. Limitation- Act XIV. of 1859, < I,
Cl.13— ActIX.0flS7i.Scked.il., Art. 128.] In
a suit instituted on the 17th September 1873 by
a Hindu widow against her deceased husband's
brother for maintenance, it appeared that the
plaintiff's husband died in 1845, and that the
plaintiff had neither received, nor made any
claim for, maintenance from that date till 1S71.
Held, that under CI, 13, § I of Act XIV. of
1859— which provides that the period of limita-
tion to suits for the recovery of maintenance,
where the right to receive such maintenance is
charged on the inheritance of any estate, shall
be 12 years from the death of the per:
whose estate the maintenance is alleged
charge, or from the date of the last payment to
the plaintiff by the party in possession of the
estate on account of such maintenance—
the plaintiff's right to bring a suit for main
tenance was barred in 1868; and — the principli
of the decision of the Privy Council in Gungi
Cobind MunAul v. The Collector of the 34 Per
gannahs (11 Moo. I. A, 345 ; S. C. 7 W. Rep.
P. C. 12) applying equally to a suit for mainte
nance as to a suit for the recovery of land— thi
plaintiff's remedy being barred, her right wa
barred also, prior to the passing of Act IX. of
1871, and was not revived by the repeal of Act
XIV. of 1S59 by the Act of 1871. Krishna
Mohitn Boss t. Okhilmoni Dossbb. Mariby
and Prinsep, JJ...I. L. Rep. 3 Cal. 331, 1877.
SmMohesh Lalb.Basant Kumaree...
L L. Rep. 6 Cal. 340, Vol. 2,
Col. 813.
As to this last point, sec Limitation.
15. 16. 17.
7. Right to Maintenance accrues from
time to time — Widaf's Residence in Ancestral
Houst unnecessary.'] By common law the right
of a Hindu widow to maintenance is one accruing
from time Eo time, according to the wants and
exigencies of the person entitled.
HINDU LAW — MAINTENANCE OF
WIDOW— contd.
Separation by the widow from the ancestral
mse will not generally disentitle her to main-
tenance suitable to her rank and condition.
A Hindu by his will expressed a hope that his
ives and sons would all live amicably together,
and bequeathed the whole of his property to his
a, directing him to provide for his (the
} widows and the other members and
dependents of the family ; and declared that he
made these provisions to prevent dissensions in
the family, and to enable them to live in peace
id harmony after his decease. In a suit
brought more than 16 years after the testator's
death by one of his widows against the eldest
:over maintenance, it was contended
for the defendant that the suit was barred by
on ; that it was a condition precedent to
the plaintiff's right to maintenance under the
he should reside with the defendant;
and that there had been no demand and refusal
of the maintenance -.—Held, ist.that the testator
created no charge on any specific part of the
tate, but Imposed an obligation on the defend-
it to make allowances for the support of the
dows of a kind analogous to the maintenance
which Hindu widows are entitled supposing
probably that by his will he might have interfer-
ed with that law. It did not, therefore, create a
right which was a specific "charge" on the in-
heritance of any estate within the meaning of
CI. 13, ( t of Act XIV. of 1859, and the suitwas
not barred by limitation.
2ndly, that there was no condition in the will
that the plaintiff should reside with the defend-
ant so as to be entitled to maintenance; and
that the plaintiff was therefore in this respect in
the ordinary position of a Hindu widow, in which
case separation from the ancestral house would
not generally disentitle her to maintenance suit-
able to her rank and condition.
Zrdly, that though there was no evidence ol a
specific demand for the maintenance, yet under
the circumstances there was a withholding of
the maintenance by the defendant under circum-
stances which amounted to a refusal of it, giving
rise to a cause of action. Narayanrao Rak-
chandra Pant v. Rahabai...L. Rep. 8LA.
114, 1879 ; I. L. Bep. 3 Bom. 410 ;
6 Cal. Bep. 182.
S. C. under Limitation. 33.
8. Fathtr-in-lav— Ancestral Property]
Held by Stuart, C.}., Turner and Sfantie, }]■,
D.gmzed by G00gle
( 6« )
DIGEST OF CASES.
( sis )
HINDU LAW - MAINTENANCE OF
WIDOW- -contd.
that a father-in-law in possession neither of an-
cestral nor immoveable property, having no fund
with the disposal of which his son, if alive, could
interfere, and who has inherited nothing from
his son, and whose rights in any property have
not been enlarged by his son's death, is not un-
der any legal obligation to maintain his son's
By Pearson, J.— A Hindu widow is not legally
entitled to be maintained by her husband's rela-
tions after his death inertly in consequence of
such relationship, and irrespectively and inde-
pendently of the existence in their bands of an.
cestral funds or properties.
By Oldfield, J. — When the deceased member
of a family has left property, they who take itto
the exclusion of his widow will be legally bound
to maintain her out of the property. In a joint
family where there is ancestral property, such a
legal obligation will lie on the father-in-law to
maintain bis son'swidow; but where the proper-
ty is entirely the self-acquired property of the
father, the son in his father's lifetime cannot be
said to have had such an interest in the property
as will impose at his death an obligation on hi
father to maintain his widow-
Where, therefore, in a suit by a Hindu widoi
against her father-in-law for maintenance, it a|
peared that he had sold the ancestral moiety of
the house in which the parties formerly lived,
in satisfaction of certain debts contracted by
him, and not shown to have been contracted for
immoral purposes, and that he had no other
ancestral property in his hands, nor any proper-
ty derived from his deceased son : —
Held by Turner and Pearson, ]]„ the general
rule is that a father-in-law who is not in posse:
of ancestral property is not legally bound to
main tain his daughter-in-law, and that the all
ation by the defendant of the ancestral property
>n payment of debts — an alienation which the
son himself could not have resisted if alive—
not impose on the defendant the personal ii
lity of maintaining the plaintiff. Gang A Ba
Sita Ram L L. Rep. 1 All. 170, 1676.
[As to this case West,}., said in Lai
RamCHANPKA JoSHI s. SATVABHAMABA1...I. L.
Rap. 2 Bom. 494, at p. 519.
" The ancestral house had been sold for debts,
and the claim was one., as the Court says, ' which
the son himself, if alive, could not have resisted.'
HINDU LAW — MAINTENANCE OP
WIDOW— contd.
This being so, it was not necessary, 1 think, to
place the decision on what seems to me the
than doubtful ground, that a daughter-in-
law cannot claim maintenance when the father-
n.Iaw has sold the ancestral property -"3
9. Ancestral Trade — Mitakshara Law —
Debts incurred by Manager of JoiW Family
Trade —Insolvency."] The plaintiff sued as widow
of M., a deceased member of a joint Hindu
family subject to the Mitakshara law, and con-
ing of U. and his father £., and his (K.'s)
uncle H-, for a declaration that she was entitled
maintenance, out of the rents and profits of a
The house in question had been acquired by
£., partly out of funds received by him from the
of his father C, and partly out of the pro-
fits of a business for the sale of shawls, Sic,
liich he carried on with money, portions of
hich were given to him by his father, and portions
iceived by him from his estate. M. died after
the acquisition of the house, leaving the plaintiff
i H. surviving him. The plaintiff lived
with and was maintained by H. until 1875, when
//. having failed in the said business, which he
had up till that time carried on after the deathof
1 1 866, filed his petition in the Insolvent Court >
the whole of his estate and effects became
vested in the Official Assignee, who sold the house
question to S. The plaintiff then instituted
is suit against the Official Assignee and S.-. —
Held, the plaintiff admitting in her plaint that
the property out of which she claimed mainte-
was acquired by her father in-law, partly
by money supplied to him by his father, and
partly out of the profits of the business for the
sale of shawls, Stc., which be carried on with
moneys, portions of which were given to him by
his father, anil portions received by him from
his estate ; the business established and carried
on with money so derived must be treated as
a joint family business, which H., the insolvent,
was carrying on at the time of his insolvency,
and in respect of debts incurred in which he
was adjudicated insolvent. The law is correctly
laid down in Randal Tkaiursidas v. Lakhmi-
chund (1 Bom. H.C. Rep., Appx. 51-71)1 *"*'
persons carrying on a family business, in the
profits of which all the members of the family
I would participate, must have authority to
pledge the joint family property and credit
for the ordinary purposes of the business.
by Google
( su >
DIGEST OF CASES.
< 644 )
HINDU LAW — MAINTENANCE OF
WIDOW— contd.
Debts, therefore, honestly incurred in Carrying
on such business, — and it was not alleged
that any of the debts incurred by H. wen
curred improperly, or otherwise than in
due course of business, — must override the
rights of all members of the joint family in pro-
perty acquired with funds derived from the joint
business. Those who claim to participate in
the benefits, must also be subject to the liabili-
ties of the joint business. The debts in respect
of which H. filed his petition in insolvency being
joint business debts, and as such, debts for whicl
business creditors could, have attached the pro
perty, the whole interest in the property vested
in the Official Assignee, by whose sale thereof
to S., S. acquired an absolute estate therein, and
the plaintiff, under the circumstances of the
case, had no right against S. or the joir
creditors to maintenance or residence, out of «
in the house in question, nor any claim which
could be enforced against any part of the joint
estate, until after payment of the joint trade
debts. JoHURRA BlBESV. Skbegopal Misser
Pontifex, J I. L. Rep. 1 Cal. 470, 1879.
10. Decree for Maintenance — Suit for
Seduction of Maintenance. — A- Hindu widow
obtained a decree awarding her maintenance at
a certain fixed rate, and charging the assets of
a firm with the payment of such maintenance-
There was no provision in the decree that such
rate was subject to any modification which
future circumstances might render necessary-
The assets of thefirm having become diminished,
the proprietor of the firm brought a suit to
obtain a reduction of the rate of maintenance : —
Held, that the diminution of the income of
the estate on which the defendant's income was
charged, since her allowance was fixed, was a
sufficient cause for the present action, and that
the defendant's allowance was liable to be re-
duced in proportion to the existing income.
Ruka Bai v. Gauda Bai. Snort, C.J., and Pear.
son, I LLRep. 1 AIL 604, 1878.
SmStdlihoafa v. Sidava-.I. L.Bep.
9 Bom. 024-680.
Under Multiplicity of Suit*
11. Separate Maintenance.] The case
of a wife is dint-rent from that of a widow. The
burden lies on the wife to show such special
circumstances as entitle her to a separate main-
HTJST>U LAW — MAINTENANCE OF
WIDOW— eon Id.
tenance. Per VJesttopp, C.J. Kasturbai ».
Shivajioam Dkvkurn I. L. Sep, 8
Bom. 872-389.
19, Incontinence — Loss of Caste.]
Since Act XXI. of 1S50 mere loss of caste does
wcasion a forfeiture of rights of property.
The Hindu law books of special force in Bombay
Presidency, ■»., the Mayukha and the Mitak-
shara, support the position that even an incon-
tinent widow is entitled to a bare maintenance.
Where a widow had such a bare or starving
maintenance allotted to her by a decree, made in
a suit brought against herhusband's relatives: — ■
Held, that her incontinence and consequent
loss of caste subsequent to the decree, did not
disentitle her to a continuance of the mainte-
nance decreed. Hon ah a v. Timakbhat-
Westropp, C.J., and N. Harridas, J...I. L. Bep.
1 Bom, 659, 1877.
S. C. under Hindu Law— Disqualifi-
cation to Inherit. 7.
SmBhavami*. Mahtab Kuar...L L
Bep. 8 All. 171.
Under Hindu Law- Biaqvmlifica-
tion to Inherit. 4.
And in Nehaio v. Kishhn Lall...L
L. Bep. 9 All. 160.
Under Hindu Law— Inner itance—
Widows. 1.
18. ■ Charge on Ike Estate in the hands
of Purchasers— Notice.} In a Suit by a Hindu
widow against her husband's brother, who was
the sole surviving member of her husband's f ami-
id against boni fide purchasers for value
from him (the defendant), with notice of her
1, of certain immoveable ancestral property
of the family ; —
Held, that the circumstance that such pur-
chasers had notice of her claim was not condu-
ct! her rights as against the immoveable
property in their hands-
Putting her claim at the highest, it could not
be regarded as superior to that among Hindus of
son against the ancestral estate ; and a sale by
father for the payment of the debts of his own
father, or grandfather, not contracted for im-
moral purposes, is good against his son ; and
if the father have sold ancestral property
for the discharge of his own debts, and the ap-
plication of the bulk of the proceeds in pay-
ment of those debts has been satisfactorily ac-
DigitizsdbyGOO^Ie
< 645 )
DIGEST OF CASES.
HINDU* LAW - MAINTENANCE OP
WIDOW— contd.
counted for, the fact that a small part is unac-
counted for, will not invalidate the sale. The
same rule was applicable In this case, and there-
fore, if the property were sold in order to pay the
debts (not of an immoral nature) of the plaintiff's
husband, or his father or grandfather, or debts
incurred for the benefit of the joint family, ot to
satisfy a former decree obtained by the plaintiff
against the defendant for past maintenance, such
sale would be valid against the plaintiff, whether
or not the purchasers had notice of her claim.
Per West, ].— In Bengal the widow of a de.
ceased coparcener, as regards her deceased hus-
band's united coparceners, has a completed
ownership of her husband's share in the undivid-
ed family estate, subject to restrictions on waste
and subject to its proportion of the common
burdens at the moment of her husband's death.
If she chooses, she may have her share ascertain-
ed and separated. But this is placed by the
Dayabhaga on the ground that there is no right
of survivorship to intercept the widow's right
of succession under Yajnavalkya's teit, which
the Bengal lawyers apply to a united as well as
to a divided family. As against sons she has no
proprietorship, but if they divide, an equal share
must be given to her. Her right is in some
degree analogous to a wife's equity to a settle-
ment in English law. The right of survivorship,
on the other hand, is fully recognized by the
Mitakshara as excluding the widow when there
are undivided coparceners to take the estate.
If the coparceners of the deceased were his sons,
they take in preference to all others. If they
make a division of the estate, they must allot to
their mother an equal share, and the same to
any sonless widow of their father ; but this does
not invest the widows here, any more than in
Bengal, with a proprietorship in the estate be-
fore partition. The sons must, from the moment
of their father's death, be regarded as sub-
owners, yet with a liability to provide for the
widow's maintenance, and with a competence on
the widow's part to have the estate made answer-
able.
If a mother, foregoing her claim to a separate
provision out of the paternal property, resides
with her sons or step-sons, and is maintained
by them, sbe must submit to their dealing with
the estate- A fraudulent alienation for the pur-
pose of deieating her claims will not be sup-
ported ; but the particular assignee for value
acquires a complete title — not impaired, like
that of the assignee in insolvency, by the then
obvious incapacity of the insolvent's son to
support, out of the estate, those whose mainte-
nance is a charge on it. The charge must be
regarded as an equitable one of a special kind,
enforceable in all cases in which the mother or
step-mother living apart is not maintained by
the sons ; but not in other cases, except under
circumstances which affect the good faith of the
transaction by which it is sought to get rid of
the burden. In the case pi the widow of an
Ordinary Coparcener as against the surviving
members of the joint family, her claim being
strictly to maintenance, and maintenance only,
without any defined share in the estate even on
partition, and the kind of maintenance even that
she can claim being dependent on the perhaps
fluctuating circumstances of the joint family,
though she may at her will get her claim recog-
nized as chargeable on the estate in the hands of
the coparceners, reduced to certainty and secur-
ed as a specific charge on the estate, yet, if she
refrains from that course in the hopes of sharing
the improving circumstances of the family, or
through carelessness, she leaves to the copar-
ceners an unlimited estate to deal with at their
discretion ; though alienation or wasting of the
property for the very purpose of depriving her
of maintenance would be pronounced invalid or
If there is an ample estate out of which to
provide for the widow, so that she may still get
her claim fixed and secured, or if, knowing of
the proposed sale, she does not take any step to
secure her own interest, no imputation of bad
faith, or of abetting it, can be made against the
purchaser of a portion of the joint property.
If the widow, on the other hand, is not accept-
ing support from the coparceners, in satisfaction
of her claim ; if she lives apart, and the estate
is small and insufficient, it is the vendee's duty
before purchasing to inquire into the reason for
the sale, and not by a clandestine transaction
to prevent the widow from asserting her right
against the intending vendor.
It is in this connexion that the doctrine of
notice becomes of importance.
The knowledge of collateral rights frequently
qualifies those acquired by a purchaser. The
right of a Hindu widow to maintenance is a
right maintainable against the holders of the
D.gmzed by G00gle
( 847 )
DIGEST OF CASES.
( 648 )
HINDU LAW - MAINTENANCE OF
WIDOW— amid.
ancestral estate, in virtue of their holding, no
less through the operation of the law than if it
had been created by agreement ; and so when the
sale prevents its being otherwise satisfied, it ac-
companies the property, as a burden annexed to
it, into the hands of a vendee with notice that it
exists. Equity, between the vendee and vendor,
will make the property retained by the latter
primarily liable ; but such property there must
be to make the sale and purchase free from
hazard, where the vendee has knowledge, or the
means of knowledge, of a widow's claim that
cannot be satisfied without recourse to what he
proposes to buy.
The debts of the deceased owner take pre-
cedence over the maintenance of the widow,
and the estate is properly applied, in the first
instance, by the sons in payment of such debts-
By a sale of the property the heirs cannot get
rid of the personal liability to provide for the
Whether the widow's claim for maintenance
against the estate of her deceased husband in
the hands of a purchaser or mortgagor is in-
forceable or not, does not depend on whether the
rest of the estate in the hands of the heir has
been exhausted or not. What was honestly
purchased, is free from her claim for ever ; what
was purchased in furtherance of a fraud on her,
or with the knowledge of a right which would
thus be prejudiced, is liable to her claim from
the first. The relations of the parties are de-
termined once for all at the moment of sale.
There is no authority for the doctrine which
makes the claims of widows not entitled to a
share of property in case of partition, a real
charge on the inheritance, and ranks the claims
of widows who are so entitled as a mere moral
obligation. In all cases it is a claim to main
tenance merely, not interfering, so long as it ha
not been reduced to certainty by a legal trans
action, with the right of the actually partici
pant members to deal with the property at thei
discretion, provided their dealing is honest an
for the common benefit.
The reduction of the number of surviving co-
parceners to a single person makes no differ
ence in the widow's legal position. The rights
and obligations of the original coparceners fall
at last to their sole survivor. The widows must
be maintained by him out of the property, but
he may still deal with the estate at his discretion
HINDU LAW - MAINTENANCE OV
WIDOW— contd.
i the absence of actual fraud, or of a decree
hich has converted some widow's claim into an
actual right in re. The purchaser from him
a perfectly good title, and one which, if
good at the time, cannot be impaired by subse-
I changes in the vendor's family. Laksh.
Ramchandra Joshi v. Satvabhahabai.
Westropp, CJ-, and West, J L L. Rep.
9 Bom. 494, 1877.
S. C. under Multiplicity Of Suits. 1.
14. Nephew's Widow.';, It is well set-
tled Hindu law in the Bombay Presidency that,
widow whose husband was, at his death, un-
vided in estate from his father, or the widow
one undivided, at his death, in estate from his
brothers, or nephews, or other relative, would,
in the first case, if there be sufficient ancestral
estate in the hands of the surviving father, or
in the second case, if there be sufficient ancestral
sstate in the hands of the surviving brothers,
nephews, or other relative, be entitled to a rea-
sonable maintenance out of such estate.
But in the Presidency and Island of Bombay, a
Hindu widow voluntarily living apart from her
husband's relatives, is not entitled to a money
allowance as maintenance from them if they
were separated in estate from her husband at
time of his death, nor is she entitled to such
ntenance from them, whether or not they
e separated from him at the time of his
death, if they have not any ancestral estate, or
estate belonging to or inherited from him, in
their hands.
In the language of Manu and other Hindu
jurists there is an important distinction when,
without reference to the existence of family pro.
perty, they especially treat of the maintenance
and support of thewife, or of parents, oraninfant
son, and when they speak of the maintenance
and support of the females of the family at large.
In the former case, their tone is mandatory, and
purports to impose a personal legal obligation
of a permanent and continuous character en-
forceable by the sovereign or the State, &c. ; in
the latter case their tone is preceptive merely.
There is no Hindu authority for saying that
after aHindu widow has received and spent her
full share given to her as maintenance, she is
entitled again to charge the family estate, or
maintain a suit against her husband's relatives
personally for another share or further mainte-
DigitizsdbyGOO^Ie
DIGEST OF CASES.
nance. Bat Lakshmi v. Laihmidas Gopaldas (t
Bom. H. C. Rep. 13) disapproved.
Semble, tbestridhan of a Hindu widow should
be taken into account in determining whether
and to what extent she should have maintenance
assigned to her.
S., a Hindu widow, voluntarily residing apart
(ram her husband's family, sued his paternal
uncle, the nearest surviving male relative of her
husband, for a money allowance as maintenance.
Held, that the suit was unsustainable, for either
of the two following reason, ri».— 1st, that the
defendant was separated in estate from her hus-
band and his father at the time of the death of
the former. 2nd, that at the time uf the institu
lion of the suit there was not in the defendant'
possession any ancestral estate, or estate of the
plaintiffs husband or his father.
Ckandrabhagabai v. Kashinath (1 Bom. H. C.
Rep- 323> and Timmappa v. Parmeskriamappa
(5 Bom. H. C. Rep., A. C- J. 130) disapproved.
Savitkibai v. Laxmibai...I. L. Bep. 2 Bom.
073, 18 '78, F. B.
15.-^— Small Cause Court— Jurisdiction.]
In a suit by a widow against her husband's bro
ther for a pecuniary allowance as mainten
and for the expenses of a pilgrimag
Held, following Sidiingapa v. Sidava (I. L.
Rep. 2 Bom. 634) that the suit, though for a
sum under Rs. 500, was not cognizable by a
Mofussil Court of Small Causes, there being
no allegation that the maintenance was secured
by bond or other special contract.
Held also, following Samtribai v. Laxmiiai
(I. L. Rep. 2 Bom. 573), that the defendant
was not liable, as he was not in possession <
any ancestral property, or property which had bi
longed to the plaintiff's husband. Apaji Cnu
Taman v. GANGABAI. Westropp, C.J., Kcmbcdi and
West,]}.}. 1 L. Bep. 2 Bom.
633, 1S78.
16. Amount of Maintenance.'] A Hindu
widow is not, at the utmost, entitled to a larger
portion of the annual produce of the family
property than the annual proceeds of the share
to which her husband would have been entitled
"n partition if he were living. Madhavrav K.
Tilak v. Gangabai. Westropp, C.J., and Kern-
Ml, j ...I. l, Bep. 2 Bom. 039, 1878.
17, Gift by Husbend during his Lifetime
of all his Estate— Liability of Donee to maintain
the Donor's Widen.] A wife is, under the
Hindu law, in a subordinate sense, a co.owner
with her husband ; he cannot alienate his pro-
perty or dispose of it by will in such a wholesale
manner as to deprive her of maintenance.
Where, therefore, a husband in 1850 made a
gift of his entire estate, ancestral as well as self-
acquired, without -making any provision for the
maintenance of his widow -.—Held, in a suit
brought by her in 1877 against the donee, that
the latter must be deemed to have taken and to
hold the estate subject to her maintenance.
Jamnat. MachulSaHu. Pearson and Spankie,
JJ 1. L. Bep. 2 All.
315, 1879.
18. Widened Mother — Amount of
Maintenance,] In a suit by a Hindu widow for
Held, that the fact that she was not a childless
widow, hut had had a son who died a minor
subsequently to his father, was not a ground for
reducing the allowance she would have been
reasonably entitled to had she been a childless
Maintenance should be allotted to her rela-
tively to the amount of the profits on what would
have been her husband's share had he lived.
Narhar Singh «. Dlrgnath Kuar. Stuart,
C.J., and Straight, J ...I, L. Bep. 2 All. 407,
1379.
HINDU LAW-MAINTENANCE OP
TB— Smalt Cause Court— Jurisdiction.] In
the absence of any special bond or other con-
for the payment of maintenance, a suit for
tenance is not cognizable in a Court of
Small Causes in the Mofussil. The liability of
the husband to maintain his wife is an obligation
arising out of the status of marriage among
Hindus expressly imposed by their law, and not
Ordinarily the right and liability to main-
nance do not rest on contract, but are created
by the Hindu law in respect of the jural relations
of the Hindu family. In numerous instances
maintenance is recoverable in which there is no
ixionwith contract. Sidungapas. Sidava.
Westropp, C.J., KemballsnA West, ]J 1. I,.
Bep. 2 Bom. 624, 1878.
S. C. under Multiplicity of Suite. 2.
tv Google
( 051 )
DIGEST OF CASES.
( 062 )
hutdu law — maintenance of
WIFE— contd.
2. Separate Maintenance.] Although,
by'Hindu law, a husband is bound to maintain
his wife, she is not entitled to a separate main-
tenance from him, unless she establishes in
proof, that by reason of his misconduct, or by
his refusal to maintain her in his own place of
residence, or other justfying cause, she is com-
pelled to live apart from him. Sidlingapa t.
Sidava. Westropp.C. J., and Kemball,] I.
L. Rap. 2 Bom. 684, 1878
3. Separate Maintenance.] The case
of a wife is different from that of a widow. The
burden lies on the wife to show such special
circumstances as entitle her to a separate main-
tenance. Per Westropp, C.J., in TASTURBA1 ».
Shivajirah Devkaran....!. L. Rap. 8 Bom.
372, 382.
HINDU LAW-MAJORITY— Age of— for
Hindus Domiciled and Resident
See Age Of Majority.
Mathoorhohun Roy o. Sooren-
droNarain Deb. ..I. L. Rep.
1 Oal. 108.
HINDU LAW— MANAGES OF UNDI-
VIDED FAMILY - Power of — to
pledge Joint Family Property for purpo-
ses of Joint Ancestral Trade — Insolvency
—Title of Official Assignee.
Sec Hindu Law— Maintenance of
Widow. 9.
JOHURRA BlBEE V. SREEGaPAL
Missbr.-I. L. Bap. 1 Cal-
470-
See Hindu Law- Ancestral Trade.
JoYKlSTO CoWAR 0- NlTTYAKUND
NUHDV..X L. Bap. 3 Cal.
788.
— Act IX. of 1878, ( 30.J The relation of the
managing member of a Hindu family to his
coparceners does not necessarily imply an
authority on the part of the manager to keep
alive, as against his coparceners, a liability
which would otherwise become barred. The
words of J 20 of the Limitation Act (IX. of
1S71) must be construed strictly, and the
manager of a Hindu family, as such, is not an
agent " generally or specially authorized" by
his coparceners for the purpose mentioned in
that section. Kuharasahi Nadak e. Pa la
NaoaPPA Chetti. Morgan,C. J., and Kindersley,
J. X L.Bep. 1 Mad, 38S, 1878.
HINDU LAW -MARRIAGE - Persons of
Different Subdivisions of Sudra Caste.} Per
Mitter, J. — " In ordinary cases, where it is esta-
blished that parties have lived together as hus-
band and wife for a long length of time, it is
valid marriage between them ; and I am not
■ of any peculiar provision in the Hindu
Law which is inconsistent with such apresump-
.s this.
t in this
ether
for the parties are of different castes"
(fisherman and weaver castes respectively), " and
image between them is impossible,
unless sanctioned by any peculiar social custom
governing them."
Per Markhy, J. — Queere, whether there is any
legal restriction upon such a marriage. Naraik
Dhara ». Rakhal Gain... I- L. Bop. 1 CaL 1,
1675.
S. C under Hindu Law — Inherit-
ance—Illegitimate Son. 2.
HINDU LA W- MARRIAGE IN ABTJBA
FORM — Nagar Vissa Vania Caste — Inherit.
ance.] Whether property coming to a widow
by inheritance from her husband is or is not, in
the strict sense of the term, stridhan, it seems
to be quite settled, that property derived by a
childless widow by gift or inheritance from her
husband, or so much of it as remains, passes on
her death to his heirs, and not to her own blood
relations, except in the case of a widow who
had been married to her deceased husband
1 other than one of the four approved or
■putable forms of marriage,
essential characteristic of the Asura form
of marriage appears to be the giving of money
or presents by the bridegroom or his family to
the father or parental kinsmen of the bride ; in
the four approved or more reputable forms, no
such presents are made.
There is nothing to show that the Asura form
of marriage is obligatory on the mercantile and
servile classes, or that the more approved forms
are not permissible to them as well as to the two
higher classes. The Nagar Vissa Vanias are
reputed to belong to the Vaisya or third of the
four original great sub.divisions of the Hindu
race, and the form of marriage in use among
them corresponds with one Or other of the ap-
proved forms, and not to the incidents of that
called Asura, and the giving of pain does not
constitute a purchasing of the bride.
Therefore property inherited from her deceased
husband by a childless widow of the Nagar Vissa
D.gmzed by G00gle
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DIGEST OF CASES.
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HINDU LAW- MARRIAGE IN ASURA
FORM— contd.
Vanias, on her death intestate devolves on the
relations in blood on the mother's side of her
husband, in preference to the heirs and next oE
kin of the widow. Jaikisondas Gopaldas v-
HaRKISONDAS IlULLOCHANDAS. Green, J...L L.
Rep. a Bom. 9, 1876.
HINDU LAW— MINORITT-Age of-of
Hindu Domiciled and Resident in Cal-
Set Age of Majority .
MOTHOORMOHUN V. SoORBNDRO
Narain...!. Ii. Rep. 1 CaL
106.
HINDU LAW — PARTITION - Adopted
Son — Share of.
See Hindu Law— Partition. 11
Of Ancestral Property does not alter its
Ancestral Character.
See Onus Proband!. S.
Adukhom v. Chowdhry Sib
NARAiN...I.L.Rep.3 0*l.l.
— Burden of Proof of.
See Onus Probanda. 4.
Vedavalli e. Narayan L L.
Rep. 3 Mad. 19.
Co- Widows— Right of one of two Co- Wi-
dows to enforce.
See Hindn Law— Inheritance-
Widows. 3.
Sri Gajapathi Nilamani «. Sri
GAJAPATHI RADHAMANI...L.
Rep. 4 L A. 312; L L.
Rep. 1 Had. 890.
Decree for— Effect of.
See infra. 13. 14.
Decree for— Execution of.
See Decree for Partition.
Sheikh Khoorshed «. Nubbee Fa-
TiMA...I.L.Bep. SCal.CSl.
See Execution of Decree. 11.
Rajcoomaree v, Gopal Chundek.
I. 7.. Rep. 8 Cal. S18.
— Evidence of.
See Compromise. 2,
Pitam Singh v. Vi agar Singh...
I. L. Rep. 1 All. 661.
And see infra. 6. 6.
HINDU LAW-PARTITION— tanid.
Impartible Zemindary — Transfer by Deed
of Family Arrangement to Younger Brothers —
jn thereto of Widow as to Separate
Estate.
See Hindu Law— Separate Proper-
ty.
Periasahi o. Periasami L. Rep .
B L A. 61 ; S. C. L L. Rep.
1 Mad. 313.
- Limitation to Suit for.
See infra. 9.
See Prescription. 1.
SlTARAM B. KhA.-JDERAV L It.
Rep. 1 Bom. 386.
Mother's Right to Share on Partition be-
tween sons on Father's Death.
See infra. 4.
See Parties to Suit. 8.
Tortt Bhoosuk v. Tara Proson-
no...I. L. Rep. 4 Cal. 708.
See Hindu Law— Maintenance of
Widow. 13.
Lakshuan p. Satvabhamabai...
I. L. Rep. 3 Bom. 494.
Of Pension in lieu of Saranjam.
See Saranjam.
Rauchandra o.Sakharah...L L.
Rep. 3 Bom. 846.
Of Saranjam.
See Saranjam.
Rahchandra b.Sakharam... L L.
Rep. 2 Bom. 846.
Son's Right to enforce-
See infra. 3. 13.
Widow's Right to enforce.
See infra. 3.
Ancestral Estate— Unequal Distri-
bution of— Outstandings.] A Hindu, governed
by the Mitakshara law, who has two sons un-
divided from himself, cannot, whether his act
be regarded as a gift or as a partition, bequeath
the whole, or almost the whole, of the moveable
ancestral estate to one son, to the exclusion of
the Other. A plaintiff entitled on partition to
one-half the property in his brother's hands, is
bound to bring into hotchpot any ancestral
property, or property acquired from ancestral
funds, which may be in his own possession ; but
D,gltlzed by G00gle
DIGEST OF CASES.
HINDU L AW— PASTITION-ctmW.
he is not bound lo account for money received
by him during his father's lifetime from his
father, while he was living in commensatity j
with his father and brother: for, where the en-
joyment of what is in common may have been
unequal, that of some being greater than that
of others, the shares on a division are still to be
the same, the law taking no account of greater
or less expenditure, unless the difference be such
as to exclude all idea of proportion, the object
entirely selfish, or the circumstances of a kind
to impute fraud. The members of an undivided
Hindu family, when making a partition, are
entitled, as a rule, not to an account of past
transactions, but to a division of the family pro-
perty actually existing at the date of partition.
In a partition suit, the Court ought not to
direct an immediate money payment by the
defendant to the plaintiff of his share in the
outstanding debts due to the estate, as if such
outstanding debts had been recovered, and the
money were in the hands of the defendant. And
as a member of an undivided Hindu family is
not bound to effect a partition by paying a cer.
tain sum of money to his coparceners, the Court,
in a partition suit, ought not to award interest
on money decreed to be paid by the defendant
to the plaintiff. Lakskkan Dada Naik v.
Ramchandra Datja Naik. Melvill and Kemiatl
JJ I. L. Rep. 1 Bom. 861, 1877.
Affirmed on appeal Ii, It. 7
LA. 181.
3. Son's Sight to demand Partition.]
In an undivided Hindu family governed by the
Mitakshara law, a son has a right to demand
and enforce, in the lifetime and against the will
of his father, the partition of immoveable ances-
tral family property. KaliParsadb.Ramckarn.
I. L. Rep. 1 All. 159, 1876, 7. B.
8. Right of Widow to enforce.} The
question whether a Hindu widow is entitled to
partition is one for the discretion of the Court
in each particular case. The Court would pro-
bably refuse partition by metes and bounds to a
childless widow, who was entitled to a very
small share. But where a widow had daugh-
ters and grandsons, and the share she was enti-
tled to through her husband was considerable,
she was held entitled to a decree for partition.
SOU DAMON EY DoSSEE V. JoGESH CH UNDER
Dutt. Poniifex, ]...!. L. Bep. 9 CaL 283,
1877.
S. C. under Hindu Law— Will.
HINDU LAW-PABTITIOH— eontd.
4, Dayabhaga — Mother's Share on
Partition among Sorts — Deceased Son.'] On a
partition among her sons, a mother is entitled
to a share as representative of a deceased son,
as well as one in her own right.
According to the Dayabhaga, Chap. III.,
Sec. H., para. 31, " The equal participation of
the mother with the brothers takes effect if no
separate property has been given to the woman,
but if it has been given she takes a half-share" ;
and the share which a mother takes as repre-
senting a deceased son is not separate property
1 to her, nor, being inherited property, is it,
according to the Bengal school, stridhatt.
Jughohan Haldar e. Sarodanoybe Dossbe.
Kennedy, ] I. L. Sep. 8 Cfli 148, 1877.
See Partial to Suit. 3.
Torit B, Bonnerjbb v. Tara
Prosokno.X L. Rep. 4
OaLTSe.
5. Evidence of.'] Where the question
was whether three brothers had separated after
their father's death, one brother and the widow
of another alleging that the separation was
confined to the third brother, and it was proved
that there were admissions by the brothers of
division, proceedings such as mutation of names
in the revenue records, only consistent with the
fact that such division had taken place, and
separate bankers' accounts, and separate deal-
ings with property, all pointing to a division of
the deceased brother's estate from both his
brothers : —
Held, that there was ample evidence of the
separation of all three brothers after their father's
death. Prag Dasc.Hari K is HEN. Pearsonatttt
Oldfield, JJ...I. L. Hep. 1 All. BOS, S04,
1877.
S. C. under Hindu Law— Forfeiture
of Widow's Estate.
6. Evidence of —Definement ofShares.J
The fact that there was a definement of shares
followed by entries of separate interests in the
lue records in some estate only is an im-
portant piece of evidence towards proving;
separation of title and interests, but it will not
necessarily amount to such separation; it must
be shown that there was an unmistakable in ten-
on the part of the shareholders to separate
their interests, and that the intention was car.
led into effect. The best evidence is separate
enjoyment of profits and dealings with the
Digitized byGOO^Ie
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DIGEST OF CASES.
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HINDU LAW-PARTITION -contd.
properly, and if it be found that through a long
course of years there is nothing to show that a
deSnement of shares has been acted on, and
that the parties continued to enjoy the property
on the same footing as before, it is but reason-
able to suppose that though they may have taken
some steps towards separation, the intention to
separate was abandoned Ambika Dat v. Sukh-
mani Kuar. Turner and Oldfield, JJ I. L.
Bep.l AIL 437, 1877.
7. Dewuttur — Trust in favour of Idol
— Evidence.'] In a suit for partition, the plaint
stated that the common ancestor of the plaintiffs
and the defendants and his live sons, had ac-
quired certain properties ; that on the death of
the ancestor the Eve sons separated among
themselves, taking certain land, amounting to 16
bighas each, for their own private expenses:
that the remaining lands they held in ijmalee
among themselves ; that one of them became
the manager, who made the collection of the
rents, and from the profits thereof paid the ex-
penses of the Rash, Dole, &c, festivals and the
worship of the idol, all of which were alleged to
be patrimonial; and that the balance of the
money was divided among themselves.
The substance of the defence was that the
whole of the property under claim was the pre
perty of the idol.
The lower Court found that some of the pn
petty was devsuttur and impartible, and made
decree for partition of the rest.
Held on appeal, that the statements in the
plaint did not amount to an admission that the
property had been given to the idol, and so had
become impartible ; and that, partition being an
incident of property, if the properly were the
property of the several members of the family,
and had not been transferred from the family,
and actually dedicated to the idol, but was sub-
ject only to a trust in favour of the idol, the
decree tor partition was right. But the lowei
Court having erroneously declared that certaii
admissions made by the parties, to person!
making inquiries on behalf of Government witl
a view to the resumption of their property ir
suit, were oot evidence, the case was remanded
with directions to consider the same, and that if
it should be found that the property remained
the property of the several members of the
family, subject to a trust in favour of the idol,
and that only the profits of the lands were
dedicated to the worship of the idol, and the
HINDU LAW- PARTITION— contd,
surplus proceeds distributed among the members,
then that the decree for partition should stand.
Ram Coohar Paul v. Jogender Nath Paul.
Markby and Prinsep, }]...!. L.Rep.4Cal. 56 ;
2 Gil. Rep. 810, 1878.
8. Undivided Family— No Partition
for several Generations.'] In a joint Hindu
family in which partitions of family property
have taken place, the mere fact that there has
been no division of the estate during six or se-
ven generations does not deprive the members
of the right to demand a partition. Thakur
Durriao Singh*. Thakur Davi Singh ..L.
Rep. 1 I. A. 1 ; 13 Beng. L. R. 16S, 1873.
8. Metes and Bounds— Partition by
Agreement without actual Division — Seer Land
—Limitation Act XIV. of 1859, f I, CI. 13-] A
partition may be effected by agreement, al-
though no actual division of the property may
have been made by metes and bounds. If it
clearly appears that the parties intended to make
a final partition of their joint property, that
intention will be given effect to.
Where the bulk of the estate of a Hindu
family is held and managed by a single mem-
ber of the family, and the other members re-
ceive and enjoy part of the lands as seer, the
possession of the bulk of the estate by the ma.
nager is not adverse, so as to bar, under the
Limitation Act XIV. of 1859, § 1, CI. 13, a suit
by the others for partition ; unless there are
circumstances to show that they accepted the
seer lands in lieu of the shares they would have
been entitled to on partition. Appovier v. Rama
Subba Aiyan (tl Moo. 1. A. 75) approved.
Runjebt Singh v. Koobr Gujkaj Singh. ..L.
Rep. 1 L A. 9, 1873.
10. Intention to divide — Metts and
Bounds.] There may be division of a joint and
separate Hindu family, and of the joint property,
without a regular partition by metes and bounds.
The question in every particular case must be
one of intention, whether the intention of the
parties to be inferred from the instruments they -
have executed, and the acts they have done,
was to effect such a division. Circumstances
under which an intention to effect a separation
has been inferred. Appovier v. Rama Subba
Aiyan (11 Moo. I. A. 75) followed. Baboo
DOORCA PERSAUD ». MUSSUHAT KUNDUN KOO-
WAR...L. Rep. 11. A. 66 ; 18 Beng. L. R.
S8D ; 21 W. R. 214, 1878.
Digitized byGOO^Ie
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DIGEST OF CASES.
{ 060 )
HINDU LAW-PAKTITIOIJ-ftmirf.
11, Mitakshara Law — Share of any
Adopted Son of a Natural Son an Partition, i>
a Mitakshara Family—Intention as to Joint o
Several Ownership.'] The plaintiffs claimed I
one-third share of the common family property
The common ancestor of the family, one S. D.,
had three sons, B., L-, and D. The plaintiff wa:
one of the sons of B., but was adopted by D.
who died in the lifetime of his (O.'s) father
5. O. The defendants were the other sons o
B., and the son of L. The family was governed
by Mitakshara law.
Held, that on partition between the members
of a Mitakshara family an adopted son and thi
adopted son of a natural son stand exactly in th.
Same position, and that each takes only th,
share proper for an adopted son, — i.e., half of th*
share which he would have taken had he been <
natural son. The fact that the plaintiff as i
member of a Mitakshara family became, upon
adoption, a joint owner of the family property,
did not prevent the operation of this general
rule, and the plaintiff was therefore entitled only
to a one-sixth share.
No right vests in any member of a joint Hindu
family to a specific share until some act has
been done which has the effect of turning the
joint ownership into several ownership. This
may be done by a mere signification of intention,
and when a signification of intention has once
taken place which has this effect, the share of
each member becomes .at the same moment
several and defined. It is the signification of
intention, producing concurrently these two re-
sults, which enables a member of a joint Hindu
family to dispose of his share by sale whilst the
family still remains joint. Raghubanund Doss
u. Sadhu Churn Doss. Markby and Prinsep,
]]...! L. Rep. 4 Cal. 495 ; 3 Cal. Sep. 080,
1878.
13. What amounts to — Suit for Snare
—Decree.] Although a suit by a member of a
joint Hindu family against his CO -sharers for a
separate share of the joint estate be not in terms
a suit for partition, yet, if it appear that the
intention of the plaintiff was to obtain the share
to which he would be entitled on a partition, and
the decree passed in the suit assigns him that
share, such decree does, in fact, effect a partition
at all events, of rights, which, under the doctrine
laid down in Appovier v. Rama Subba Aiyan (l I
Moo I. A. J5), is effectual to destroy the joint
HINDU LAW-FARTITION- -contd.
estate. Joy Narain Gihi p. Girish Chundek
Mm... I. L. Rep. 4 Cal. 484, 1878 P. C. ;
S. C. L. Hep. SLA. 328.
18. Ancestral Properly— Right of Sons
to compel Partition.'] " It seems now to be set-
tied law in the Courts of the three Presidencies
that a son can compel his father to make a
partition of ancestral immoveable property. "
Per Cur. Suraj Bunsi Koek v. Skeo Pershad
Singh L. Rep. 0 I. A. 88 ; 4 Cal. Rep.
936, 100, 1879.
14. — What amounts to Partition— De-
cree— Inheritance.] In a suit for partition, the
first of the issues in the cause was settled in
August 1871, as follows;—" Whether the pro-
perty sued for constituted a zemindary, and if
so, whether it is partible or impartible, and
whether it is liable to all the incidents of
private property." This Issue was tried sepa-
rately, and determined by the Judge on the
14th of August. The Jadge found that on
the evidence it was quite clear that the estate
was in its nature partible, and that the plaintiff
was entitled to a moiety of the property, subject
to all charges as might thereafter be found bind-
ing. No formal order or decree was drawn up
on the judgment embodying these findings, but
in the subsequent proceedings, the Court treated
the question whether the coparceners were to be
declared separate, or whether the property was
partible, as decided by the judgment of the 24th
August 1871, against which judgment no appeal
was preferred i —
Held, that the judgment of the 34th August
1871, must be taken to be equivalent to a declara-
tory decree determining that there was to be a
partition of the estateinto moieties, and making
the coparceners separate in estate from that date,
if they had not previously become so ; and that,
though the actual division of the property was
iplete, the case fell within the principle
of Appovier v. Rama Subba Aiyan (it Moo. I. A.
75), and on the plaintiffs death his interest
passed to his own representatives in the course
of succession as separate estate, and not to his
coparcener by survivorship. Chidambaram
Chettiar v. Gouri Nachiar ...It. Rep. 6 I. A.
177, 1870 ; S. C I. L. Rap. 2
Wad. 88 ; S Cal. Bep. 0.
HINDU LAW— PRIMOGENITURE.
Sa Hindu Law— Inheritance—
Primogeniture.
Digitized byGOO^Ie
( 681 ) DIGEST OF CASES. ( 883 )
HINDU LAW — RELINQUISHMENT I HINDU LAW-SALE OP LAND-5W, i*
OF SHARE BY BOW-Inheritance-Priva? Execution — Assignment — Ponatbn.] On •
•-ingement— Widow.'] The effect of a Hin-jsale in execution of a decree, the property in
I father,
i relinquishing for
share in (he property of hi
adoptive, and agreeing not
or after his father's lifetime, is to place him jr
the position of a separated Son. The relinquish-
ment does not amount to disherison. If, there-
fore, the father on such relinquishment makes
an alienation of his estate, it will take effect,
but otherwise his separated son will inherit in
preference to his widow.
A son by birth or adoption can, (or adequate
reasons, be disinherited, but the course of de-
volution prescribed by the law cannot be altered
by a private agreement. On the disherison of
the son the son's son becomes his grandfather's
lawful heir. Balkrishna Triubak Tendulkar
b. SavitribAi. West and Pinhey, JJ I. L.
the thing sold passes to the purchaser, and ther
isnolhingin the Hinduor English law which
debars a third person from taking an assign-
ment of such property from the auction pur-
chaser.albeit it has not been reduced into pos.
session by him. Covin n Raghunath tr. Co-
vindJagoji. Kemball and Pinhey, JJ...L L.
Rep. 1 Bom. 000, 1870.
8- Delivery of Possession — Registra-
tion.'] The weight of authority preponderates
greatly in favour of the necessity of a transfer
of possession as the necessary complement of a
ract, in order to effect an absolute change
vnership by sale. The transfer of posses-
may be replaced by registration, or by a
to all of the change ; but in
Rep. 3 Bom. M, 1878. ) the absen« "! so™ such public i
only right acquired by a vendee, as by a mort-
gagee or donee, is one of an equitable character
enforceable only against the vendor and those
taking under him with notice, — not against
purchasers or sub-purchasers in possession with-
out notice, whose legal title, fully acquired.ean-
not be cancelled by the Court, on the ground of
dishonest or unconscionable means having been
HINDU LAW-REHARRIAQE OP WI-
DOW—Maraver Caste.] In their customs and
observances, persons of the Maraver caste are
mainly governed by the Hindu law. But
among them widows may remarry, and in this
respect their customs differ from those of the
Hindu law as understood to be binding
higher castes in the present day. Their law of
inheritance of property, and of the right of the
widow of a man who has no male issue to a life
wtere-t in it, is the Hindu law, and it must be
assumed that they are in such matters guided
by the principles of that law, however much it
may be relaxed in reference to their social
usages. The principle on which a widow takes
the life interest of her deceased husband when
there is no male heir, is that she
portion of her husband j and whei
to remarriage is relaxed, and a second marriag
allowed, the law will not allow the widow wh
has remarried, and who must he regarded as n
longer surviving her husband, to lay claim to pre
perty left by him :~Held, therefore, that a widoi
of the Maraver caste who had remarried, had
no claim to the property of her first husband.
MurugaYI v. VlRAMAKALI. Morgan, C.J,, and
/»n«,J...L L. Rep. 1 Mftd. 386, 1877.
HINDU LAW EIGHT OP FATHER TO
CUSTODY OF INFANT DAUGH-
TER—Loss of Caste does not affect.
5m Loss of Caste.
KanahiRam v. Viddya Rah...
L L. Rep. 1 All. 549.
viving
Under Act VIII. of 1871, §§ 48 and 50, an
unregistered deed of sale accompanied by pos-
session would not take effect against a register-
ed deed of sale without possession, where the
id delivery of possession under the un-
registered deed are, though prior to the regis-
tration, yet subsequent to the execution of the
egistered instrument. But where in such a
:ase both deeds are registered, they must he
velghed againt each other according to the
Hindu law, i.e., the deed accompanied by pos-
sssion will prevail against the prior deed un-
xompanied by possession.
Therefore where B. A, sold a house to the
plaintiff on 2nd July 186S, and executed a deed
of sale to him, and on the same day executed
another deed of sale of the same house to
the defendant and put him into possession ; and
the defendant registered his deed on the 7lh
July 1E68, while the plaintiff did not register his
deed till the 16th July 1872 ;-/( mas held, in a
suit brought by the plaintiff to recover posses-
sion of the house, that the defendant's posses-
sion completed his title, and that he could not
D,„i„.db»Googlc
DIGEST OF CASES.
( 8M )
HINDU LAW— BALE OF LAND- ■contd.
be ousted by the plaintiff. Lalubhai Surchand
•. Baj Amrit. West znd Pinhry, JJ...I, L. Rep.
2 Bom. 399, 1877.
HINDU LAW-SALE OF UNDIVIDED
SHARE OF MEMBER OF UNDI-
VIDKI> FAMILY— Effect of.
See Hindu Law -Gift. 3.
Ballabh Das v. Sunder Das...
L L. Rep. 1 All. 429.
HINDU LAW — SELF-ACQUIRED
PROPERTY.
See Oudh Proclamation of 1S0S,
para- 8. 1.
Harfurshad b. Sheo Dval ..L.
Rep. 8 1. A. 359.
• Burden of Proof.
See Onus Probandi. 4.
Vedavalu v. N'aravaha 1
L. Rep. 2 Mad. 19.
Grant of Village in /nam jointly to Mem-
bers of Undivided Family.
Set Hindu Law — Undivided Fa-
Radhabai u. Nanarav X. L.
Rep. 3 Bom. 101.
■ i Gift of — to one Son to exclusion of others
See Hindu Law Gift. 1.
Sital v. Mahado.-.I. L. Rep.
1 All. 394.
Mitakska-a Las- Education out of Joint
Fundi —In a suit to set aside a will it
tended that under Mitakshara law the property
acquired by the testator by successful trading,
and by the exercise of his industry and intelli
gence, became joint in contemplation of law i
the nucleus with which he commenced trading,
and round which his fortune gathered, had been
acquired by him from his father, or if he had
been educated out of the funds of the family
Held on the evidence, that such nucleus 1
not been derived from the testator's father, :
that he had not been educated out of any jc
funds, but out of theseparate eatate of the father.
It therefore became unncessary to consider whe.
ther the somewhat startling proposition of law—
that if a member of a joint Hindufamily receive!
any education whatever from the joint funds, he
becomes for ever after incapable of acquiring by
HINDU LAW — SELF-ACQUIRETJ
PROPERTY-™**.*.
his own skill and industry any separate property
— is or is not maintainable. Very strong and
clear authorities would be necessary to support
such a proposition.
No texts had been cited which went to the
II extent of the proposition contended for ;
id it might hereafter become necessary for
their Lordships to consider whether or not the
: limited and guarded expression of the law
lis subject of the Courts of Bengal (as laid
down in Dhunoakdharee tail v. Cunput tall, la
W. Rep. 122) was not more correct than what
ppeared to be the doctrine of the Courts at
Madras. Pauliem Valloo Chetty «. Pau-
SOORYA CHETTV...L. Rep. 4 I. A. 109,
1877 ; L L. Rep. 1 Had. 352.
S. C under Practice— Privy Council.
2.
HINDU LAW — SEPARATE PRO-
PERTY.
See Compromise. 2.
Pitah Singh v. Ujaoar Singh...
I. L. Rep. 1 AIL 651.
1. Impartible Zemindary — Succession
of Widov thereto as Separate Estate— Renunciation
—Transfer—Partition.'] The ancient and im-
partible zemindary of Pads matt a r, descendible
by primogeniture according to the usage of such
es, and originally portion of the Shiva-
ganga estate, descended under the Mitakshara
jaw as joint ancestral estate to M., the eldest of
Hindu joint brothers, on the death ot their
uncle G., who left a widow P. surviving him and
pregnant. C. had up to the time of his death
been recognized by Government as zemindar,
and had been in possession of the Shivaganga
zemindary. On his death the Shivaganga
zemindary was claimed by M., and was given
over to him by Government when G.'s widow
P. was delivered of a daughter. In antici-
pation of that event, an agreement was passed
by M, on the Wth of June 1829, to his second
brother G„ as follows:— "My junior pater-
nal uncle, zemindar of Shivaganga, having
departed this life, leaving no male issue, I have
become entitled to the zemindary : and you, as
my next younger brother, are appointed as zemin-
dar of the palayapat of the said Padamattar.
But as Parvata, one of the royal wives of our
abovemeotioned junior paternal uncle, is preg-
nant, we shall act as usual In the matter of the
Digitized byGOO^Ie
DIGEST OF CASES.
( "86 )
said palayapat in the event of her giving birth
to a son. But should she be delivered of
daughter, I and my offspring shall have no inU
rest in the pilayapat, but you alone shall be the
zemindar, and rule and enjoy the same, allowing
at the same time, as per former arrangement, to
the younger brother, the village that has been
assigned to him."
This agreement took effect on the birth of P.'s
daughter ; and from that day to the commence-
ment of the present suits, the Padamattar ?emin-
dary had gone in the line of G.'s descendants,
St. obtaining possession of the Shivaganga ze-
mindary. G died in 1855, and was succeeded
by bis son D., who died in 1861. In a
brought in 1873 by S-, one of the sons of M.
recover from the defendants in possession, all of
whom claimed to be purchasers for value from
D. under different titles, seven villages, all that
remained of the Padamattar palayapat :—
Held, that the plain meaning of the above
agreement was that ST. renounced, for himself
and each of his descendants, all interest in
palayapat, either as the head or as a ji
member of the joint family, while he expressly
reserved the right of the youngest brother. The
effect, therefore, of the transaction was to make
the Padamattar palayapat the property of the
two instead of the three brothers with all its
cidents of impartibility and peculiar course
descent, and to do so as effectually as if in the
case of an ordinary partition between the brother,
on the one hand, and the twoyoungerbrotherson
the other, a particular property had fallen to the
lot of the two; and that consequently, as be-
tween the descendants of M. and D., the pala-
yapat of Padamattar was the separate property
of the latter, and on his death, bis right, if he
had any left undisposed of in the property, pass-
ed to his widow, notwithstanding the undivided
status of the family; and that, therefore, the
case was one to which the rule of succession
affirmed by the Shivaganga Case {9 Moo. I. A.
539) applied, and the plaintiff had no title to sue
id the lifetime of the widow. Periasaiii v.
Periasami I.. Rep. 51. A. 81 ; 3 Cal
Rep. 61, 1S7S.
S. C I. L. Rep. 1 Mad. 313, sub nom.
Shivaoawga Tewab v. Ramasaui
IirWDTJ LAW— SO DTD ATARAX.
Set Hindu Law — Alienation by
Widow. 3.
MaDHAVARAYA I. TlkTHA Sahi...
L L. Rep. 1 Mad. 307.
HINDU LAW— BTBIDHAN — Alienation
by Widow of Lands purchased with.
VtNKATAV. VENKATA T_ L.
Rep. 1 Mad. 381.
- Daughter's Inheritance from her Father is
See Hindu Law — Inheritance —
Daughter. 4.
Choi-ay Lam. 0. Chunnoo Lall...
L. Rep, 6 LA. 16; I. L.
Rep. 4 Cal. 744.
—Descent of — Gift to Married Woman by
Husband's Father's Sister's Son.
See Hindu Law — Inheritance —
Stridhan.
HuRRVMOHUK SHAHA v. ShOHA.
tun Shaha L L. Rep. 1
Cal. S76.
— Immoveables Given by Husband not.
See Hindu T, aw- Gift. 3.
RudrNakainSinoh v. RupKuar.
I. L. Rep. 1 AIL 734.
Property acquired under Sunnud from
Government to Widow and her Heirs.
See Act. I. of 1869, § 32, CI. 11.
Brij Indar Bahadur Singh v.
RaneeJanki KoER...L.Rep.
B I. A. 1 .
1. Mitaishara Law — Inherited Property.']
Under the Bengal school of Law and the Bengal
decisions on the Mitakshara, inherited property is
not stridhan whatever controversies there may be
under the other schools or in other treatises.
Per White, }., in JuoboHah HaldaRv. Saro-
damoyee Dossbe ..L L. Rep. 3 Cal. 140,
150, 1877.
1. Immoveable Property inherited by
Grandmother.] To constitute stridhan devolv-
n a woman's heirs, it must be held uncon-
ditionally and subject to no restriction. Pro.
petty inherited by a paternal grandmother from
her grandson will not bear this test, since it is
like property inherited by the mother from the
b, Google
DIGEST OF CASES.
(
)
HINDU LAW— STBJDHAN- -contd.
son, subject to the same restrictions as to its
disposal as that inherited by the wife from her
husband. Such property, therefore, does not
rank as stridhan, and on her death devolve on
her heirs, but devolves on her death on the heirs
of her grandson. Phukar StNGH v. RaNjIt
Singh. Person and Oldfittd, JJ ..I. L. Rep.
1 AIL 661, 1878.
8. Immoveable Property given by Hus-
band—Purchased with Stridhan.] Immoveable
property given to a married woman by her
husband during his life, cannot be alienated by
her at her pleasure, after his death, but move-
able property so given by her husband becomes
her stridhan, and over immoveable property
purchased by her after her husband's death out of
the proceeds and on the credit of her stridhan,
and with money obtained by her by using her
own personal credit and ability, and without
the aid of her husband's estate, she has complete
power of disposition and can dispose thereof
by will, though had such property been purchased
during her husband's lifetime she might not
have had absolute power to dispose of it during
her husband's lifetime. Venkata Rama Rau «.
Venkata Suriya Rau. Morgan, C. J., and
Xindtrsley, ]...!. L. Rep. 1 Mad. 281, 1877.
S. C. under Hindu Law— Aliena-
tion by Widow. 3.
Hindu Law— Will. 9.
HINDU LAW— UNDIVIDED FAMILY
— Alienation by Member of — governed
by Mitakshara Law, of his Share, by
Voluntary Alienation.
See Hindu Law— Alienation of
Ancestral Property. 2. 3. 4.
7.
MUSSUMAT PHOOLBAS KoONWAF
v- Lalla Joceshur Sahoy. .
L. Rep. 3 I. A 7 ; I. L.
Rep. 1 Cal. 226.
GlRDHAREE LALL t". KaNTOO
Lall.. L. Rep. 1 1. A. 821 ;
14 Beng. L. Rep. 187.
SuRAJ BUNS! KOER V. ShEO PeR-
SHAD...L Rep. 8 L A. 88
Chanaili Kuar v- Rau Pershai
I. L. Rep. 2 All. 267.
See Hindu Law— Gift. 8.
Ballabh Das d. Sunder Das...
L L. Rap. 1 AIL 420.
HINDU LAW-UNDIVIDED FAMILY
- Alienation by a Member of an — of his Share
in the Ancestral Property — Liability of
such Share to Sale in Execution of Decree
against such Member.
See Hindu Law— Alienation of An-
cestral Property. 4.
Subaj Buns; Kosr * Sheo Pbr-
shad Singh. ..L. Rep. 6 Z.
A. 88.
- Authority of Manager of.
See Hindu Law— Ancestral Trade.
JOYKISTO COWAR V. NlTTYANUND
Nundy.,.1. L. Rep. 3 Cal.
783.
See Hindu Law— Maintenance of
Widow. 9.
JOHURRA BlBBE C. SrBEGOPAL
MISSER...I. L. Rep. 1 Cal.
470.
See Hindu Law— Manager.
Kumarasami v. Pala Nagappa...
I. L. Rep. 1 Mad. 886.
- Certificate of Administration to Estate and
Guardianship to Minor Children of De-
ceased Member of — cannot be granted
where no Separate Estate.
See Certificate of Administration
of Minor's Estate.
GURACHARYA u. SvAMIRAYACHA-
See Compromise. 2.
Pitah Singh v. Ujagar Singh...
L L. Rep. 1 AIL 66L
- Liability of Share of Deceased Member of
— for his Debts under Decrees against his
Widows as his Representatives.
See Hindu Law— Alienation of An-
cestral Property. 3.
Musst. Phooloas Koonwar b.
Lalla Joceshur Sahoy. ,.L.
Rep. 3 I. A. 7 ; I. L. Rep.
1 Cal. 226.
Digitized byGOO^Ie
(
)
DIGEST OF CASES.
( 870 >
HINDU LAW— UNDIVIDED FAMILY
Mortgage by Father during Son's Minority
— Suit to enforce Mortgage — Onus Pro-
bendi.
See Onus Probandi. 7.
Sin<
JAI
Singh I. L. Sep. SCaL
438.
- Personal Decree against Father — Sale of
Family Property in Execution of— Right
of Son to recover Share.
See Sale Id Execution of Decree. 10.
15.
Venkatasaui Naik a. Kuppai.
van.. .L L. Rep. 1 Marl.
Venkattaramayya t
Venkatta-
SUBBRAMANIA
Ibid. 393.
Sale of Undivided Share of Member of—
Effect of.
See Hindu Law— Gift.
2.
Ballabh Dash. Sup
dbr Das ..I.
L. Bep
1 All. 429.
- Sale of Undivided Share of Member of—
in Execution of Decree against such
Member.
SeeBom. AetV.oflB62.
Arpasir «. Muse... I. L. Bep. 1
Bom. 601.
See Civil Procedure Code, Act VIII.
of 1859, § 289.
Kalapa v. Venkatesh Z. L.
Bep. 2 Bom. 670.
See Hindu Law — Alienation of
Ancestral property. 1 to 6.
See Hindu Law— Liability of An.
ceatral Property in the
hands of the Heir for the
Debta of the Alices tor.
Narayan «, Narso.I. L. Bep. 1
Bom. £62.
See Hindu Law— Undivided Fa-
mily. 3. 4. 7. 6.
And .if? Sal; in Execution of Decree.
10. 10.
Venkataramawah v. Venkata-
SUBUKAMANtA...I. L. B*P. 1
Mad. 858.
Vinkatasami v. Kuppaiyan
Ibid. 854.
HINDU LAW- UNDIVIDED FAMILY
Succession in — Brothers — Nephews.
Sec Hindu Law — Inheritance —
Nephewa.
Bhimul Doss k. Chooneb Lall...
I. L. Bep. 2. Cal. 370.
Succession in — of Brothers and Nephewa
Sons of Predeceased Brother.
See Hindu Law — Inheritance-
Brothers. 3.
Dm Parshad v. Thakur Dial...
L L. Bep. 1 All. 105.
Suit by one Member for a specific Share.
See Parties to Suit. 4.
Nat hum Mahton «. Manraj
Mahton...L L. Bep. 2 CaL
140.
- Summary Settlement with, and Grant of
Talookdari Sunnud to Member of.
See Oudh Proclamation of 1808,
para. 8.
HURPURSHAD V- SHEO DVAL...L<
Bep. 3 X. A. 259.
1. Grant of Village in Inam to Mem-
bers of Undivided Family— Survivorship— Joint
Tenancy.] The village of Alur was in i8j0
granted in inam by the British Government, in
the joint names of N. and T. for services render,
by their late father. The grant was made
N. and T. jointly, and without any limitation
by words purporting that they were to take it
distinct shares. On the death of T. his wi-
dow claimed a moiety of the inam, alleging that
T. had died separate from his brother N. The
lower Courts found the alleged separation not
proved. On appeal to the High Court, it was
argued for the widow that the village was the
self-acquired property of N- and 7"., and that she
was entitled to her husband's share on his
death, irrespective of union or separation : —
Held that T. could not be held to have ac-
quired h ;lf the village in such a sense that, as be-
tween him or bis widow the plaintiff, it could
be regarded as self-acquired property. The
grant of the village would in Englsh law have
created a joint tenancy, and on the death of one
joint tenant the other takes the whole of the
joint property by right of survivorship. The
result would be the same under Hindu law. The
wot brothers held the village as coparceners, and
D.g.t^dbyC.OOglC
( «71 ) DIGEST OF CASES.
HINDU LAW— UNDIVIDED FAMILY HINDU LAW-UN DIVIDED PAXIL Y
-contd. —amtd.
the nile of Hindu law is, thai when property is
held in coparcenary, the share of an undivided
coparcener, who leaves no issue, goes to his un-
divided coparceners ; and this is equally the case
when the property is acquired in joint tenancy
as when it is ancestral. RadHArai o. Nana.
■AV. Mel-sill and Pinhey, JJ L L. Hep. 3
Bom. 101, 1879.
3.-^— Seer Land— Participation to Extent
of Share.'] In a suit for his share of the joint
estate by a member of an undivided Hindu fa
■lily, who has been in a possession of seer land.
where (he defence of limitation is set up, it is
not necessary thai the plaintiff should prove
that he participated in the profits of the family
estate to the full extent of his share. If the
members of the family lived in commensa-
lity, and the funds of the estate which they
respectively held, independently of thesfir land,
were brought into the common fund, and they
participated in this fund by reason of their living
in commensality, it is not necessary that the
plaintiff should prove the possession of a specific
share of the joint fund.
Per Sir Barnes Peacock in Luch-
mun Singh e Shumshehe
S[ngh...L. Rep. 2 I. A. SB,
187*
S. Mitakshara Laa — Sate of Share in
Execution— Rights of Purchaser.] The respon.
dent's father being indebted to the appellant,
executed to him a mortgage bond to secure the
amount due. on which the appellant, without
making the other co-sharers parties to the suit,
obtained a decree in the form of an ordinary
decree for money, in execution of which, with-
out taking any proceedings to enforce the decree
against the property especially mortgaged, the
appellant caused to be sold the right, title, and
interest of the judgment debtor in the joint
family estate, and became himself the purchaser
thereof, and obtained delivery of possession of
the whole estate as purchaser.
In a suit by the respondent to recover the
same, on tbe ground that the said share could
not be sold in execution without proof of legal
necessity for the debt ; —
Held, that tbe appellant had not acquired by
the execution sale more than the right, title, and
interest of tbe judgment debtor. If he had
sought to go further, and to enforce the debt
against the whole property, and the co-sharers
therein who were not parties to the bond, he
ought to have framed his suit accordingly, and
have made those co-sharers parties to it. But
assuming that a member of a Mitakshara joint
family may not dispose of his share in the joint
estate by voluntary conveyance without the
consent of his coparceners, the right, title, and
interest of one co-sharer in a joint ancestral
estate may be attached and sold in execution to
satisfy a decree obtained against him personally
under (he Mitakshara law, as well in Bengal as
in Bombay and Madras, and the appellant as
purchaser at an execution sale of such share,
was entitled to ascertain (he same by such
partition as the judgment debtor might have
competed before the alienation of bis share
took place. Dukndayal Lall b. JugDEEP Na-
rain Sing ..L. Rep. 4 I. A. 347, 1877; L
L. Sep. 3 Cal. 198 ; 1 Cal. Bep. 49.
4. Mitahshata La-m— Execution— Sale
of Interest of oneMemberof Joint Family.] The
principle laid down in the case of Deendayal
Lall v. Jugdecp Narain Sing (L Rep. 4 I. A.
247 1 1. L. Rep 3 Cal. 198) that the right, title,
and interest of a Hindu father in a joint family
estate under the Mitakshara law can be at-
tached and sold in execution of a decree obtain-
ed against him personally, is applicable to the
right, title, and interest of any member of the
joint family against whom a decree has been
obtained. The right, title, and interest of such
member can be attached and sold in execution
of a decree against him personally. Rat Narain
Dass * Nownit Lal. Garth, C. J., and
Prime},] I. L. Bep. 4 Cftl. 809, 1B79.
B, Ancestral Immoveable Property —
Rights of Father and Son.] Sons who are
members of an undivided Hindu family acquire
by birth an interest in the paternal as well as
the ancestral estate, of a proprietary and coparce-
nary nature, but while their interest is proprie-
tary, it lacks the incident of dominion. The
son's enjoyment of the property is subject to tbe
disposi(ions lawfully made by tbe father as head
and manager of the family, and, if dissatisfied,
the son's remedy will lie in any right he may
possess to partition the estate. Where, there-
fore, 4; the plaintiff, sued to eject his son from
a portion of a bouse partly ancestral and partly
self-acquired by the plaintiff, which the defen-
dant had taken possession of on its .being
D.gmzed by G00gle
( 673 )
DIGEST OF CASES.
( 674 )
HINDU LAW— UNDIVIDED FAMILY
vacated by a tenant, and which the plaintiff
wished to dispose of in the way he thought most
desirable for the interests of the family. — there
having been no illegal disposition of the property
by the plaintiff, and [he defendant having occu-
pied the portion of the house from which it was
sought to eject him, because he objected to live
with his mother-in law,— the plaintiff's claim
was decreed. Baldeo Das e. Sham Lal. Turner,
C.J. (Offg), and OlijUld, J...I. L. B»p. 1 AIL
77, 1870.
6. Joint Estate — Presumption.'] In
the case of an ordinary Hindu family who are
living together, or who have their entire pro.
perty in common, the presumption is, that all
that any one member of the family is found pos-
sessed of, belongs to the common stock, and the
onus of establishing the contrary is thrown On
the member of the family who disputes it.
But this presumption does not arise where it
appears that there has been a division of the
family property, and where the members of the
family live separately, and have no commensa-
lity between them. B annuo ■*. Kashee Ram...
I. L. Rep. 3 Cal. 310, 1877, F. C.
7. Mitakshara— Purchaser at Execution
Sale of Joint Family Property— Usurious Rateof
Interest— Form of Decree.] In a suit by a Hindi
subject to the Mitakshaia law, against certaii
a sale
n ofi
decree against his father, to recover a por
the ancestral estateby cancellation of the;
appeared that the property that was mortgaged
by the bond on which the decree was obtained,
was not put up for sale. The bond was a bond
not only mortgaging property, but made th<
mortgagor personally liable ; and the decrei
provided " that the claim be decreed ; that the
plaintiff recover the amount with costs and in.
terest, and that the decree be executed against
the property specified by the bond." The decree
also allowed interest at the rate of about 50 per
cent., the rate in the bond, to the decree-holders.
It was contended on behalf of the plaintiff that,
according to the true construction of the decision
of the Privy Council in Sfuddan TAaioor v . Kantoo
Loll ( 14 Beng. L. Rep. 187, S. C. L. Rep. 1 I.
A. 321), when ancestral property is sold in exe-
cution of a decree against the father, though
the purchaser was not bound to look to the
character of the debt, he was bound
HINDU LAW— UNDIVIDED FAMILY
the character of the decree to see if it were a
proper one, and that the decree was an improper
face, as it appeared that the decree-
holders were bound to proceed first against the
ortgaged property:— .
Held that, according to the decision oF the
Privy Council in the above case, the purchaser
not bound to look beyond the decree to see
at there was aright decree.but was only bound
look to the decree to see that in point of form
was a proper decree.
Held also, that the fact that it appeared on
the face of the decree that the interest allowed
•as not a circumstance which, within the prin.
iples laid down by the Privy Council, could be
reated as showing that the decree was for a
debt which the son was not bound to discharge.
Held also, that upon such a decree as that set
forth above, a person may proceed either against
person or the property specified in the
decree (though whether such a course should
be allowed in any particular case is a matter for
the discretion of the -Court executing the de-
cree) ; and that, under the law laid down by the
Privy Council, the purchaser (the defendant)
had a right to assume that the property which
was sold was liable to sate under tbe decree,
and that any questions which the judgment
debtor might have raised or did raise upon
the order by which the property was brought to
sale, were disposed of at the time when the sale
was ordered to take place- Lachmi Dai Koori
b. ASM an SlNC. MatUy and Milter, JJ....I. L.
Hep . 2 Cal. 313, 1876.
8. Ancestral Estate— Execution—Salt
of Coparcener's Interest.] In a Suit by a member
of an undivided Hindu family to have his right
declared to a portion of the joint estate, which
had been sold by the Civil Court in execution of
a decree against his coparcener alone : —
Held, that the plaintiff was entitled to a decree
declaring that he was entitled to joint possession
along with the execution purchaser as tenant in
common. But that if a division in specie were
desired, a suit should be brought for that pur-
pose. Babaj: Lakshuan p.VasadevVbnayek.
West and N. Harridas, JJ . , . L L. Rep. 1 Bom.
96, 1876.
9. Liability of Undivided Hindu for
Debts of Deceased Brother.] P., an undivided
Digitized byGOOC^Ie
< 875 )
DIGEST OF CASES.
HINDU LAW-UNDIVIDED FAMILY
Hindu coparcener, died on the 7th August of
1874, leaving him surviving a son, N., and 1
brother C. The son, JV., died on the and of July
187s- In a suit brought by the plaintiff against
C, on a bond executed by P. as surety for one
R. :—
Held, that the joint family property which had
vested by survivorship in C. was not his hands
liable for the separate debts of his brother P.,
and that it not having been shown that i
separate property belonging to P. or N. had co
to C.'s hands, or that P. had executed the surety
bond for the benefit of the undivided family, C.
was not liable to the plaintiff. Narsinbhat
Bapubhat 0. Chenapa Ningapa. Westropp,
C.J., and Md-uilt, J... I. L. Bep. 2 Bom. 479,
1877,
10. Purchase mith Joint Funds— Ex
cvtion."] A purchase by a member of a Hindu
joint family with the joint funds is a purcha;
on account of the joint family, and property s
bought may be taken in execution for a joii
family debt
In execution proceedings the Court will look
at the substance of the transaction, and
tie disposed to set aside an execution upc
technical grounds when they find th
substantially right. Btssessuh Lail Si
Maharajah Luchmessue Singh. ..L. Bep. 6
I. A. 233, 1879.
HINDU LAW— WIDOW'S EIGHT OF
RESIDENCE IN FAMILY HOUSE-A
Hindu widow, who resided with her husband and
the members of his family in the family dwelling,
house while he was alive, is entitled to resids
thereinafter his death, and cannot be ousted by
an auction purchaser of the right,t it le, and interest
in the house of her husband's nephew. Mangale
Debiv.Dinnanatk Base (4 Beng. L. Rep., O. C.
J. 72; 12 W. Rep., O.J. 35) followed. Gaurj
e. ChanaramaNJ. Turner and Spankie, JJ ..I.
L. Bep. 1 All. 262. 1876.
HINDU LAW — WILL— Ancestral Pro-
perty— Unequal Distribution.
See Hindu Law— Will. 11.
— Attestation of.
if? Hindu Law— Will. 2.
— Bequest- to Class
See Hindu Law- -Will. 4. 7.
HINDU LAW— WILL— contd.
Bequest to Person Designated— Direction to
Widow to Perform Adoption Ceremo-
See Hindu Law— Will. 6.
—Condition in Restraint of Partition.
See Hindu Law- Will. L
— Executor, Estate of.
See Hindu Law- Will. 10.
— Executor, Renunciation by.
See Hindu Law— Will. 3.
— of Hindu Widow.
See Hindu Law— Will. S. 8. 9.
— Inconsistent Condition.
See Hindu Law— Will. 13.
Nuncupative.
See Hindu Law— Will. 12.
Probate.
See Probate.
Uncertainty — Void Bequest.
See Hindu Law— Will. 8. 4.
Revocation by Parol-
See Act I. Of I860, J 32, CI. 4.
Maharajah Pertab Naraim
Sinoho. Maharanee Sobhao
Kooek L. Bep. 4 L A.
2S8 ; S. C. I. L. Bep. 3
Cat. 6£6.
1 Construction— Hindu Will— Clause
restraining Partition or Enjoyment.'] A Hindu
testator by his will, after appointing his son C.
executor, directed that he should
have the management of all his moveable and
mmoveable property, and the conduct of his
justness (that of a liquor merchant), and that
his three other sons should remain joiDt with G.,
who, out of the profits of the business, was to
lay out, as long as the sons remained joint,
per month for household expenses, such
be divided among the sons in the event
of their being unwilling to remain joint. The
first paragraph of the will then continued—
1 After 20 years from my death my sons will be
it liberty to divide and take the aforesaid busi-
less, but before the aforesaid 20 years (have
lapsed) my sons will not be compent to divide
the capital stock or profits of the aforesaid busi-
D.gmzed by G00gle
( 671 )
DIGEST OF CASES.
(
)
HINDU LAW— WILL— cantd.
ness," — ''before Ihe lapse of zoyears from my
death neither G. nor any of my other sons shall
acquire any right therein." In the 2nd para-
graph of the will, the testator directed a sum he
had accumulated from the profits of the busi-
ness "to be thrown into the jumma of the afore-
said business, Ihe two to be divided according to
the rule for the aforesaid business, after the lapse
of M years from my death. Before this time
my sons shall not be competent to make a divi-
sion." The 5th paragraph of the will was as
follows :— " Whatever other i mm moveable pro-
perty, &c-, I have beside the said business, 1
give to my sons in equal shares ; as soon as they
wish, they may divide and take it in equal
shares. But alter the lapse of id years from
my death, my eldest son C and his heirs, be-
coming rightful proprietors, will get a 5 annas
share of the whole ol my aforesaid business;"
and the clause then proceeded to declare the
shares to which the other sons of the testator
should then be entitled.
Held, that upon a true construction of the will
the words in the first paragraph " neither he nor
any of my sons shall acquire any rights there-
in" meant rights of immediate enjoyment ; and
that the testator gave all his property in the
aforesaid business to his sons In the shares spe-
cified in paragraph $, but postponed theirenjoy-
ment of that property for twenty years, subject
only to the monthly gift of Rs. 500. But, with-
out deciding that a Hindu testator might not
give the current profits or income of the property
to the trustees, and direct them to apply that to
the payment of debts throughout a specified
period, as twenty years, it was not competent to
him to give the corpus of the property to an
adult person, and at the same time to forbid that
■person from enjoying the property in the way
which the law allows. The prohibition, there-
fore, against receiving and enjoying [he income
for twenty years was a condition imposed on
the property which was repugnant to the gift
and was void in law, and the sons were, there-
fore, immediately en tit ted to the business, subject
to the direction with regard to the application
oftheRs. zoo a month for household expenses
and were entitled to a partition. MoKOoNrto
Lail Shaw e. Gonesh Chunder Shaw.
Phear,} I. L. Rep. ICal. 104, 1875.
2. Attestation — Signature.] A will
by a Hindu is not invalid because it was not
written by the testator himself and because his
HINDU LAW-WILL— contd.
signatureis not attested. Radhabaih. Ganesh
Tatva Gholab. Westropp, CJ., and Kembatt.
J I. L. Bep.3 Bom. 7, 1876.
3. Probate— Renunciation by Executor
—Proof of Execution in Court— Void Bequest—
Uncertainty — Administration Accounts.) A
Hindu testator empowered his executor to lay
out such portion of his estate as the executor
might think fit for the erection of a bathing-
ghaut and temples, and the daily Worship therein,
and directed that his " said eiecutor should hold
the rest and residue of his said property, and
should invest the accumulation thereof to the
best advantage," but made no disposition of
such residue. The executor renounced, and no
probate of (he will, or letters of administration
with the will annexed, was granted. In a suit by
the testator's sole heiress for construction of the
will, and for a declaration that she was entitled
to the residue of the testator's estate, and for
administration, the Court allowed the execution
of the will to be proved in Court; declared the
trust for the erection of the bathing-ghaut and
temples void for uncertainty ; that the residue
of the testator's property was undisposed of,
and the plaintiff as his sole heiress was entitled
thereto after payment of his debts ; and directed
the usual administration accounts to be taken.
SURBO MlINUDLA DaBEE I. MoHENDRONATH
Nath. white,} I. L.R.3P.4 Cal. 008,
1879.
4. Gift to Unascertained Class— Void
Bequest.] A bequest by a Hindu to a class of
persons some of whom are not in existence at
the date of the testator's death, and could not,
therefore, legally take, is wholly void ; and the
fact that some of the class are then living and
capable of taking, will not enable the ctass to
open out and let in any after-born members of
the class. Tagore v. Tagore (9 Beng. L. Rep.
377) and Soudamoney Dosser v. Jogesh Chunder
Dutt (I. L. Rep. 2 Cal. 362) followed. Khe-
kodemoney Dossee -b. Doorgakoney Dossee,
Garth, C.J., and Markby J...L L. Hop. 4 CaL
46B, 1878.
And see Treepoora Soondert Doss.
1. Debendronath Taoore... I. L.
Rep. 2 Cal. 43, p. 53.
5. Construction— Alienation by a Hin-
du Widow.] H. K., a Hindu inhabitant of the
province of Behar, by a document of a testa-
mentary character after reciting the death of
nut Google
DIGEST OF CASES.
( 680 )
HINDU LAW- WILL— a>*td.
his son, his younger brother with bis
'ifc, and
his own wife, declared ihat " only R. D., widow
of R, K-, my deceased son above mentioned, who,
too, excepting her two daughters born of her
womb, B. S- and B. D., has no other heirs, is
my heir. Except R. D. aforesaid none other is,
nor shall be, my heir and malik." " Furthermore,
to the saH R. D., too, these very two daughters
named above, together with their children who
after their marriage may be given in blessing
them by God Almighty, are and shall be heir a
B. S. predeceased the testator H. R. without
B. D. died subsequent!)', leaving her husband
and an infant son, the respondent.
After //. AVs death, D. K. sold a portion of the
ancestral lands to the appellant for Rs. 41,000,
of which Rs. [4,000 were devoted to pay off a
mortgage thereon.
In a suit by the respondent against the ap-
pellant and D- A", for a declaratory older pre-
serving unmolested his future right, title and
interest to the said lands, and for cancellation
of the deed of sale : —
Held-An construing the will of a Hindu it is
not improper to take into consideration what are
known to be the ordinary notions and wishes of
Hindus with respect to the devolution of pro-
perty. It may be assumed that a Hindu gene-
rally desires that an estate, especially an ances.
tral estate, shall be retained in his family ; and it
may be assumed that a Hindu knows that, as a
general rule, at all events, women do not take
absolute estates of inheritance which they are
enabled to alienate. Having reference to these
considerations; together with the whole of the
will, — all the expressions of which must be taken
together, without any one being insisted on to
the exclusion of others,— the intention of the
testator must be taken to have been, that D. R.
should not take an absolute estate which she
should have power to dispose of absolutely, but
that she should take an estate subject to her
daughters succeeding ber in that estate, whether
succeeding as heirs of herself, or as heirs of the
testator, being immaterial ; and that D. R.,
therefore, took a life interest immediately suc-
ceeding the testator, without that interest being
shared by her daughters or by any otber person,
and not an estate of inheritance which she was
able absolutely to alienate ; and, therefore, that
HINDU LAW-WILL-<rD»W.
D. R. could not convey to the defendant an
estate beyond her own life, and that the plaintiff
was entitled to a decree to the effect that after
D. AVs death the property belonged to him.
Held also, that D. A*, was very much in the
position of a Hindu widow and might have sold
the estate absolutely if It could have been shown
(and the burden of showing this lay on the pur-
chaser) that to convey such an absolute estate
was necessary to pay off the debts of the testator,
and for the benefit of his estate generally ; but
that there was no such proof in the present
case; still, the mortgage of Rs. 14,000 subsisting
on the estate at the time of the sale, and having
been paid by the purchaser, it was equitable,
that when the plaintiff reclaimed the estate,
credit should be given to the purchaser for the
payment of the mortgage, which otherwise the
plaintiff himself would have to meet. To the
declaration of the plaintiff's title, therefore, was
added: "and to be put in possession of the said
property on the decease of D. R., on payment to
the said defendant of the sum of Rs. 14,000.
Moulvik Mahomed Shuhsool Hoooa v.'Ska-
vukram...L. Rep. a I. A. 7; 32 W. R. 40S,
1874.
6. Adoption— Performance of Ceremonies
—Gift to Person designated.'] C, a Hindu, by
his will declared that, " As I am desirous of
adopting a Son, 1 declare that I have adopted
A". B., third son of my eldest brother, S. P. My
s shall perform the ceremonies according to
the Shastras aod bring him up, and until
that adopted son comes of age, those executors
shall look after and superintend all the
property moveable and imoveable in my own
eor henami, left by me \ also that adopted
When he comes to maturity, theeiecu-
shall make over everything to him to his
satisfaction." » • • ■' God forbid I but
should this adopted son die, and my younger
brother If. have more than one son, then my
1 shall adopt a son of his. If at that time
If. has not a son eligible to adoption, they shall
dopt another son of X, and the wives and
executors shall perform all the aforementioned
a suit by one of the widows of G,, as heir
of her husband, to set aside his will and recover
half his property, it was contended that inasmuch
e ceremonies necessary to the completion
of the adoption of K. B. were performed by one
V Google
{ 081 )
DIGEST OF CASES.
HINDU LAW-WILL-r<m*rf.
wife only, the adoption was not complete,
lhat K. B. never became the son of G.-.—
Held that according to the 1
of the will, there was a gift by the
his property to a designated person,
and that it would be an altogether
reading of the will to suppose that the testator
intended the taking of his property by K. B. to
be dependent on whether the wives chose, or did
not choose, to perform the ceremonies. Whether
they performed the ceremonies or not, the gift
to K. B. toolt effect ; and during K. fl.'s life no
other adoption could take place. Nidhooi
DkbVav, Sakod Pebshada Mookebjke
Eep. 3 I. A. 283.
7. Bequest to a C/au— Remoteness —
Applicability of English Rules to Hindu Will-
Right of Hindu Widow to Partition.] A Hindu
testator died in 1837, leaving four sons and two
grandsons by a deceased son.
dated in 1837, after directing that his property
should be divided into five shares, of which fir;
four sons were to take one each, and his twt
grandsons the remaining one, the testator made
the following devise : —
" On the death of any or either of my said
four sens, or of the said R. D. and M.D. (his
grandsons), leaving lawful male issue, such
male issue shall succeed (o the capital or prin-
cipal of the share or respective shares of his or
their deceased father or fathers, to be paid or
transferred to them respectively on their attain-
ing the full age of twenty-one years ; but if any
or either of my said four sons shall die without
leaving any male issue, or if he or they shall die
leaving such male issue, and the whole of such
issue shall afterwards die under the age of twenty-
one years and without male issue, in such case
the share or shares of my said sons so dying
shall go to and belong to the survivors of my
said sons and my two said grandsons for life,
and their respective male issue absolutely after
their deaths in the same manner and proportion
as is hereinbefore described respectively." U.,
one of the sons, died in 1853, leaving an only
son, 5., born in the lifetime of Ibe testator, who
died soon after his father intestate, and without
male issue. In a suit by the widow of S., claim-
ing as his heir and representative, to recover
the share of U. as having descended to S. abso-
lutely, and to obtain partition :—
Held that, inasmuch as U. survived the testa-
tor, the gift to the male issue of the testator's
HINDU LAW— 'WILL— conld.
son was void for remoteness, as including objects
who might have come into existence after the
testator's death, and therefore be incapable of
taking. This rule was in a special manner ap.
plicable to, and necessary for, the Hindu law of
devise, of which it is a fundamental maxim that
the persons who are to take a testator's estate
must be certain and known at the time of his
death. The rule that where there is a gift to a
class, and some persons constituting that class
cannot take in consequence of remoteness, the
whole bequest must fail, as well as the principle
of the English Courts in deciding questions of
J remoteness, that regard is to be had to possible
and not to actual events, is applicable to the
interpretation of the wills of Hindus.
The gift to the male issue being void, the
subsequent limitations were also void. S., there.
fore, and through him the plaintiff, was entitled
to a share in such part of the testator's estate as
by reason of the invalidity of the gifts in the
will was undisposed of.
The question whether a Hindu widow is
entitled to partition is one for the- discretion of
the Court in each particular case. In this case,
where the plaintiff had daughters and grand-
and the share she was entitled to through
her husband was considerable, she was held
entitled to a decree for partition. Sou da money
Dossee v- jogesh Chundeh Durr. Pontifex,
J L L. Rep. 2 Cal. 263, 1877.
8 . Povier of Widom to dispose of Land
purchased with Money granted in lieu of Main-
] A Hindu widow can dispose by will
of lands purchased by her with money granted
to her by her husband's family in lieu of main-
;uch money being her absolute pro-
perty. NELLAlKUMARUCHETTlT.MAItAKATHAK-
Innes and Kindtrsley, JJ L L. Rep.
lKad. 166,1876.
S. C. under Hindu Law— Alienation
by Widow. 4.
9. Lands purchased with Stridhan.]
Or of lands purchased by her with her stridhan,
and money obtained on her own personal credit.
Vbnkata Raha Rau v. Vbmkata Si/riya Rau.
Morgan, C.J., and Kmdersley,) ....". Ibid.
281, 1877.
S. C. under Hindu Law— Aliena-
tion by Widow. 3.
10. Construction — Vendor and Pur.
chaser— Executor's Estatt — Truster— Bona Fides
Digitized byGOO^Ie
DIGEST OF CASES.
HINDU LAW—WILL— eo
- Sol:
- Charity — Limiialioi
Hindu, by his will, executed in Bombay and
dated the 6th January tS02, bequeathed a house
to his wife, R., lot her life, in trust to allow any
impersonation of Valabh to reside in it, and ap-
pointed four executors by name, but made no
gift over of the house to them or to anyone
else. The will was proved by the four execu-
tors on 24th September 1808. On 23rd June
1S2O, R., claiming as executrix according to the
tenor, obtained an order granting probate to
her, as well as to the executors expressly ap-
pointed. The executors retired, and R. acted
alone in the management of the testator's
estate. On 4th September 1862, R. sold the
house for its full value to the defendant, who
had notice of the charitable trust affecting it.
A1, died in March 1870. On the 17th March
1871, the High Court, on the application of one
A. T., revoked the probate of B. K.'s will grant.
ed to R., but without prejudice to any act done
in the due course of administration by R., and
granted letters of administration mm lestamento
anntxo and di bonis non of B. K. to /.. T. On
13th July 1873,4. T. died. On 1st May 1875,
the plaintiff, who was the only son and heir of
A. T., instituted the present suit, to recovei
from the defendant possession of the trust pre
mises sold to him by R. The plaintiff was alst
one of the surviving heirs of B- K., and by virtuf
of a release executed to him by the other heirs
was the sole surviving heir who had any bene-
ficial interest in B. AVs estate. The plaintiff,
however, did not claim the house as the bene-
ficial owner, but to hold it for the purpose of
giving effect to the trust created by the will of
B. K. On the 28th January 1876, the plaintiff
obtained letters of administration cum teslamen-
lo annexe and de iontsnon uf B. K., and it was
on these letters that he based his present claim.
Held, isr— That the plaintiff could not main-
tain the suit merely in the character of admi-
indly— That independently of Acts X. of
1S65 and XXI. of 1870, and in the absence
of i
jift of *
the
the
executors of a Hindu do not, in the character
oi executors, take any estate, properly so
tilled, in property of the deceased.
Therefore, on the death of R., the devisee for
life in trust, there being no gift of the premises
■s named in the will, the owner-
11 devolved upon the surviving heirs of
HINDTJ LAW— WILL—ronW.
B. K. subject to the obligation of allowing them
to he used for the purposes intended by the testa-
tor; i.e., they would be trustees under or by virtue
of the will of their ancestor, though succeedingto
his property as heirs. But that the estate and
trust vested in all the surviving heirs of B. K.,
and not in the plaintiff alone, and that the con-
veyances by the other surviving heirs to the
plaintiff, though they might operate to vest in
the legal estate in the premises would not
transfer to him the trusteeship, so as to enable
m to sue alone as trustee.
3rdly— That even if the Other heirs of B. K
had joined in the suit.it could not have been
maintained, being a suit by trustees seeking to
disaffirm and annul the completed act of a for-
mer trustee against one claiming under and by
virtue of such Act.
Hihty — That the words "convey in trust ■ in
Act IX. of 1871, Schedule IT., CI. 134, must be
construed to inc.lude devises in trust, or as
equivalent to the words " vested in trust " of f
and the words "good faith" in Article 134
of Schedule 1 1 and in Section to of that Act do
not necessarily involve absence of notice. For
the purposes of the Limitation Act there ma;
well be a purchaser front fide and forvalue, who
with notice of a trust or equity, takes his pur-
chase , though notice of a trust or equity may
be an important element in the question whether
there was bona fides or an absence of bond fides
on the part of one who purchases from a trustee
or mortgagee.
Held also, that under the circumstances of
this case, the defendant must be held to have
purchased in good faith within the meaning of §
to and Sched. II., Article 134, of Act IX. of
1871, and that the suit was barred by limitation,
and that there is nothing in the Limitation Act
excluding from its benefit those asserting their
right to claim under a bond fide purchase for
value, by reason that those claiming against
them are the objects of a ckarilabU trust
imposed upon such property.
Semble, that as it appeared that the imper-
sonations of Valabh (commonly called the
Maharajas of the Valabhacharya sect) never had
availed themselves, and were never likely to
avail themselves, of the house, the sale of it by
R, to the defendant was not a breach of trust.
Maniklal Atmasam v. Maniksha Dinska
Coachman. Green,} L L. Rep. 1 Bam.
289, 1676.
Digitized byGOO^Ie
DIGEST OF CASES.
HINDU LAW— WILL-r<m/rf.
11. ^ Power of Hindu to make Unequal
Distribution of Ancestral Property by Will.]
A Hindu governed by the Mitakshara law, who
has two sons undivided from him, Cannot,
whether his act be regarded as a gift or a
partition, bequeath the whole, or almost the
whole, of the ancestral moveable property to
one son, to the exclusion of the other. Laksh-
man Dad.-. Naik v. Ramchandra Dada Naik.
Afeivill and Kemball, J]. ..I. L. Rep. 1 Horn.
061, 1877.
12. Nuncupative Will—Separate Pro-
fierty.~] A nuncupative will or verbal bequest,
by a separated Hindu beyond the limits of thi
Ordinary Original Civil Jurisdiction of the
High Court, not relating to any im
property situated within those limit?
though made after the Hindu Wills Act XXI.
of 1870 came into force. Bhagwan Dullab h.
KaLa Shamkar. Westropp, C.J., and ff. Har-
ridan, J I. L. Rep. 1 Bom. 641, 1877.
13- — — Dewuttur — Construction— Incon-
sistent Condition]. A Hindu testatrix made a
will in the following terms:— "I dedicate the auc-
tion -purchased property, No. 3496, Lot Pa,nch-
gatehia, Pergunna Bagliori, Zillah Hoogkly" (the
property in question) " standing in my
to the Thakur Ishwar Raj Rajeswar tl
in my house. And the Sarodia, Pooja and
other ceremonies that are being performed in th<
house will be performed as hitherto. After all
these acts havebeen observed, from the proceed?
of the said property, if there be a surplus in thi
profits, then the family will be supported there
from. This property of mine will not be liable
for the debts of any person. None will be able
to transfer it. None will have the rights of gift
and sale. I appoint my eldest son, Doorga Churn
Chuttopadhya, and the second son, Santa Chum
Chvttopadhya, to be executors of this will.
When my younger son, Bhagobati Churn Chut-
jority, he will similarly be an executor. Collect.
ing the proceeds of this property, you will deduct
therefrom the rent, revenue, taxes, charges for
repairs, and whatever other expenses may be
necessary for the preservation of the property,
and the collection charges ; and will defray from
the aforesaid profits the expenses of the daily
worship of the said Thakur, the expenses of the
Parbans on his account, the expenses of thi
Doorga Pooja, theSliama Pooja, and the Jagadha
tri Pooja, the expenses of the annual Shradh of
HINDU LAW-WILL-omW
my father-in-law, of the first Shradh of myself
and my husbandafter our death, and the expenses
)f our Ekodista and Sapind ikaram. I f there be a
iurpl us after deduct ing the said expenses, it will
also be disbursed in the manner aforesaid. After
your death, he who will he my heir for the time
be the executor of this will. Beyond
performing the aforesaid worship of the Deb and
is and Poojas, none of my heirs shall
have any interest in or profit from my property.
And they will have no power of gift or sale over
it. And it will not be attached or sold on ac-
count of their debts." The interest of Doorga
Churn in tbe property having been attached in
execution of a decree obtained against him ; —
Held, that the property was not wholly deuuttur,
but that the effect of the will was to create a
charge upon the property in the hands of the
executors for the expenses of the daily worship
of the idol in tbe manner in which such service
was performed at the time of the death of the
testatrix, and of the Poojas Shradhs, and religious
ceremonies for which provisioo was made in the
will, and that, after defray ing such expenses, the
surplus belonged to the members of the joint
family, of whom Doorga Churn was one, and
that his interest in the property was liable to be
attached and sold in execution of the decree
against him, and that the direction in the will
that " this property of mine shall not be liable
for the debts of any person. None will be able
to transfer it. None will have the rights of gift
and sale," being inconsistent with the interest
given, were wholly beyond the power of the
testatrix, and must be rejected as inoperative.
ASHL'TOSH DUTT 0. DOOROA CHURN CHAT-
terjek L.llep. 8I.A.182, 1879,
HINDU WniOW-Alienation by-Stridhan
— Soudayakam.
See Hindu Law— Alienation by
Widow. 2.
Madmavakao v. Tirtha Sami...
I. L. Rep.. 1 Mad. 807.
Alienation by— by Will of Lands purchased
with Money granted in lieu of Mainte-
See Hindu Law— Alienation by
Widow, 4, and Hindu Law
—Wilt 8.
Nkllaikuharu ». M akakatham-
MAL...I. L. Sap. 1 Mad. 166.
D.gmzed by G00gle
DIGEST OF CASES.
{
HINDU WIDOW— contd,
Alie;
See Hindu Law— Alienation by
Widow. 8.
Vbukatau. Venkata. ...I. L.
Bep. 1 Had. 381.
Estate of,
See Hindu Law — Alienation by
Widow. 1.
Musst. Bkagbutti o. Chowdhri
BHOLANATH L. Rep. 31.
A. 206 ; I. L. Bap. 1 CaL
104.
Forfeiture of Estate of.
See. Hindu Law— Forfeiture of
Widow* Estate.
Prag Das o. Hari Kishen...L L.
Bep. 1 AIL COS.
Gift by.
See Hindu Law- Gift. 3.
Rudk Narain Singh o. Rup
KUAR...I. L. Bep. 1 All. 734.
■ Incontinence of— creates no Forfeiture of
Estate vested by Inheritance.
&■<■ Hindu Law- Disqualification
to Inherit. 3. 4. 7.
Gahqa Jati v. Ghasita I. L.
Bep. 1 All. 46.
BlIAVAJJI *. Mahtab Kuar.,.1. L.
Bep. 2 All. 171.
HOHAHA V. TlMANBHAT L L.
Bep.l Bom. 559.
Nor does it disqualify her from inheriting
her Grandmother's Property, wbeth<
Slrldhan or not.
See Hindu Law— Disqualification
to Inherit. 8.
Ganga Jati v. Ghasita I. L.
Bep.l AIL 46.
But disqualifies her from inheriting to Son,
See Hindu Law— Disqualification
to Inherit. S.
Ramnath v. Durga...I. L. Bep.
4 Oal. MO.
HINDU WDWT-mnM,
Personal Decree against— Rights of Rever-
sionary Heir, and of Purchaser at Execu-
tion Sale.
Baijin Doobsv t. Brij Bhoobun..
L. Bep. 2 I. A. 270 ; I_ L.
Bep. 1 0*1. 133.
— Remarriage of.
MuRUOAYl «. VIRAHAKALI...I. L.
Bep. 1 Had. 220.
- Represents the Estate.
See Bee Judicata. SO.
Nandkuwar e- Radha KlTARI. X
L. Bep. 1 AIL 282.
- Right of — holding Husband's Share by In-
heritance, to Pre-emption.
See Pre-emption. .9.
Phulman Rai «. Dani Kuari...
L L. Bep. 1 All. 453.
— — Right of — to Reside in Family House.
See Hindu Law— Wirtow'aRightof
Beaidence in Family Houee.
Gaum t>. Chandramam I. L.
Bep. 1 All. 202.
Right of— to Succeed to Shebaitship.
See Hindu Law — Adoption. 2.
JanokeeDebbav.Gopaul Achar-
jea L L. Bep. SCal.
366.
Suit by— to Set Aside Adoption by her
Daughter-in-law
See Bight to Sue. 3.
JAMOONA D ASSY A *. BaMASOON"
cekai.-L. Bep. 3I.A.72;
I. L. Bep. L Oal. 280.
-Mai
of.
HOLDING NOT LIABLE TO EN-
HANCEMENT.
See Bengal Act VUL of 186».
Sal Sahoob. Deo Narain Singh.
I. L, Bep. 3 Oal. 781.
Diarized by Google
(
)
DIGEST OF CASES.
(
)
HOUSEBREAKING -Penal Code.iS 441,456
—Criminal Intention.] The accused persons,
execution creditors, in company wit!
ri zed bailiff, broke open the complaii
before sunrise with intent to distrain his property,
for which they were convicted on a charge of
lurking house trespass by night or housebreaki
by night. Held, that as they were not guilty of
the offence of criminal trespass, there being
finding of any such intent as is required to c
stitute that offence, and that as criminal trespass
is an essential ingredient of either of the offer
with which they were charged, the
must be quashed. In the matter of JoTHARaM
DaVAY. Innes and Muttusamy Ayyar, JJ...I.
L. Bep. 3 Had. 30, 1878.
S. C. under High Court Criminal
Procedure Act X. of 1670, §
147. 6.
HOUSEBREAKING! BT NIGHT.
See Conviction on several Charges.
1.
Reg. o. Tuki-a...L L Rep. I
See Conviction on several Charges.
1.
Reg. b. Tukva...L L. Rep. 1
Bom. 214.
HOUSES IN LUOKNOW— Effect of Lord
Canning's Proclamation of 15th of March
185s, and Sir James Outram's of 22nd of
March 1858.
See Confiscation in Oudb, 1. 9.
Nawah Malka J ah an 57. Deputy
Commissioner op Lucknow.
L. Bep. 6LA.88,
PrIMCB MlRZA J EH AN 1'. Nawab
Assur Baku...L. Bep. 6 I.
A. 79 ; I. L. Bep. 4 Cal.
737.
HOWI-A BIGHT— Suit for Possession and
Mesne Profits by establishing Plaintiff's—
Limitation.
See Bengal Aot TUX of 1869, S 37.
2.
Khajah Ashahoollah o. Rau.
»hons...I. It. Bep. 1 Cal.
HUNDI — Bankruptcy of Acceptor — Suit
against Drawer and Acceptor residing
within Jurisdiction of different Courts.
See Procedure— Civil. 1.
Basamt Ram e Kolahai™.L L.
Bep. 1 All. 392.
Insufficiently stamped — Admissibility of
— in Evidence.
See Stamp. 3.
MOTHOORA MoHUN V. PeARY
Mohum...L L. Bep. 4 Cal.
869.
Payable in Bombay, indorsed and delivered
at Ajmere— Whole Cause of Action
against Indorsees does not arise in Bom-
See Letters Patent — Bombay —
1866,0119.
SUGANCHAND V. M ULCHAND...13
Bom. H. 0. Rep. 113 ; I. I,.
Bep. 1 Bom. S3.
See Onus Proband i. 2.
Abdul Karim a. Manjl.X L,
Bep. 1 Bom. 299.
1. Notice of Dishonour.] Previous
formal notice of dishonour of a hundi is not
before suit brought, unless it can be
shown that the parties charged have been pre.
judiced by such omission, Gqbind Ram Mar.
WARY e. MatHoora Saboova. Jacksoa and
Kennedy JJ L L. Bep. 3 Cal. 339; 1
Cal. Bep. 429, 1678.
8. Rigkhand Liabilities of Drancr—
Dranee and Payee] Immediately on failure of
payment of a draft at sight, whatever may be
the real state of account between the drawer
and drawee, the former becomes liable to the
payee for the amount which would place him at
the stipulated time and place in the same posi-
tion as if the money had been duly paid. Where
there is no acceptance, no cause of action can
arise to the payee as against the drawee. Nor
is the legal relation between the drawer and
payee altered by a partial acceptance, the con-
being in its nature indivisible ; much less
iny mere promise to pay part at a future
time in any waysatisfy the payee's claim, or post-
pone his right to reimbursement of his loss from
the drawer. Sheth Kahandas Narahoas v.
DhAIABHAI Weil and Pin hey, J J. I. L. Bep.
3 Bom. 182, 1879.
D.gmzed by G00gle
(
)
DIGEST OF CASES.
(
)
HTJaQ-I-CHAHABAH-Limitation to Suit
for — based on Custom.
See Limitation. 94.
KlRATH ClUNOli GAKESH PRASAD.
I. L, Bep. 2 AIL 338.
Suit for — founded on Custom, not main-
tainable in Small Cause Court.
See Small Cause Court— Mofuaail.
4.
Nankuv. Board of Revenue ..I.
I, Sep. 1 All. 444.
HURT— Causing— and Rioting.
See Offence made up of several
Empress v. Ram Adhin... I. Ii.
Kep.2AU.13S.
Grievous.
See Griavoua Hurt. '
Empress v. Sahae ..I. L. Hep.
3 Cat 623.
HUSBAND AND WIFE- Action for Tro-
ver by Wife against Husband.
Set Husband and Wife, 1.
Harms o. Harris. ..L L. Bap. 1
Cal. 286.
Capacity of Wife to contract.
See Hindu Law — Capacity of Har-
ried Woman to contract.
Nathulalit. Javher.-.I. L. Bop.
1 Bom. 121.
See Married Women'a Property
Act III. of 1874.
Alumuddy o. Braham. I. L.
Bep. 4 Cal. 140.
See Harried Woman* Separate
Property. 2. 3.
Hurst n. Mussoorie Bank I.
Ij. Bep. 1 All. 782.
BERESroRD v. Hurst.. .Ibid. 772.
See Restitution of Conjugal Rights.
1.
Yamunabai o. Pendse I. L.
Bep. 1 Bom. 104.
■ Custody of Minor Children on a Divorce.
See Hahomedan Law— Divorce. 1.
HAMIO Att f>. IHTIAZAH I. L.
Bep. 2 All. 71.
HUSBAND AND WIFE— anttd.
Desertion.
See Divorce. 1.3.
Wood v- Wood I. L. Bep. 3
CaL485.
Fowleb. Fowle L L. Bep.
4 Cal. 260.
Divorce — Alimony.
Sec Divorce. 3.
Fowle v. Fowls...!. L. Bep. 4
Col. aeo.
Divorce — Connivance,
See Divorce. 3.
Williams «. Williams I. L.
Bep. 3 Cal. 688.
Divorce — Delay.
Set Divorce. S.
Williams c. Williams L L.
Bep. 3 CaL 088.
Divorce — Hindu Law.
See Hindu Law— Divorce.
KUDOMEB DOSSEE V. JoTEERAM
KoLiTA.,1. L. Bep. 3 CaL
303.
Sri? Hindu Law— Inheritance— Il-
legitimate Son. 4.
Rah; v. Govind L L. Bep. 1
Bom. 87.
See Penal Code, § 484.
Reg. v. Sahbhu I. L. Bep. 1
Bom. 847.
Divorce — Mabomedan Law.
See the cases under Mahomedan
Law — Divorce.
Sec the cases under Hahomedan
Law— Dower.
Liability of Husband for Debts contracted
by Wife in course of separate Business
Carried on by Wife alone.
See Harried Women'a Property
Act 111. of 1874.
Alluhuddy s. Braham, ..I. L.
Bep. 4 Cal. 140.
Marriage between persons of Different
See Hindu Law— Marriage.
Narain w. Rakhal.,.1. L. Bep. 1
Call.
D.gmzed by G00gle
{
)
DIGEST OF CASES.
( 094 )
HUSBAND AND WTFE-ranrrf. .
Marriage in Asura Form.
See Hindu Law — Marriagg
Asura Form.
L, Hop. 2 Bom. 8.
-Mi
India between Persons wii
English Domicile — Succession to Movi
able Property.
See Indian Succession Act X. of
1865, S 4.
Miller b. Administrator Ge-
neral of Bengal 1. L.
Hep. 1 Cal. 412.
Parsis — Separate Property.
See Married Woman's Separate
Property. 1.
Dhanjibhai v. Navazeai...I. L.
Rep. 3 Bom. 70.
Restitution of Conjugal Rights — Cruelty.
See Restitution of Conjugal Bights.
1.
Yahunabai o. Pendsr T. L
Rep. 1 Bom. 164.
— Restitution of Conjugal Rights — Form of
Decree.
Set Restitution ofConju gal Rights,
3.
FuRZAND HoSSRIN ». JaNU BlBEE.
I. L. Rep. 4 Cal. 538.
See Civil Procedure Code, Act
Vni. of 1859, §200.
AjNASl KUAR v. NARRAYAN
RESHWAR...I. L. Rep. 1 All.
001.
• Restitution of Conjugal Rights— Right of
Mahomedan Wife to refuse Cohabitation
until Payment of her Dower.
Ste Mahomedan Law— Dower. 2.
Efdan v. MazharHusain.-.I. L.
Rep. 1 All. 483.
Separate Business of Wife.
See Married Women's Property
Act m. of 1874.
Allunuddy v. Braham ...I. L.
Rep. 4 Cal. 140.
HUSBAND AND WIFE- ran tf.
Separate Estate— Lands purchased with
Sale proceeds of Legacy to sole and
separate use of Wife.
See Married Woman's Separate
Property. 2. 3.
Hurst «. Mussoorie Bank .1.
L. Rep. 1 All. 762.
Beresford v. Hurst,., Ibid. 772.
Wife absenting herself from Husband —
when justifiable.
See Hindu Law— Husband and
Wife.
NATHUBHAI „. JAVHER I. L.
Rep. 1 Bom. 121, 132.
See Hindu Law— Maintenance of
Wife. 2.
SfDLlNGAPA V. SlDAVA.,,1. L.
Rep, 2 Bom. 634.
See Mahomedan Law— Dower. 2,
ElDANH, MAZHAR..X L. Rep. 1
AIL 48a
5iv Restitution of Conjugal Rights.
1.
Yamukabai v. Pendsr I. L.
Rep. 1 Bom. 164.
Married Women's Property Act III, of 1874,
{{ J and 8- Indian Succession Act X. of 1865,
( 4— Action for Trover-Suit by Wife against
Husband.] The plaintiff was at the lime of her
marriage, in 1870, possessed in her own right of
certain articles of household furniture, given to
her by her mother. Since January 1S7S she
furniture remained in his house. In February
1875 her husband mortgaged the properly to B.,
without the plaintiff's knowledge or consent.
In June 1875 one K. B., a creditor, obtained a
decree against the husband and B., in execution
of which he seized the furniture as the property
of the husband, and it remained in the Court
subject to the seizure. In July 1875 the plain-
tiff instituted a suit in her own name in trover
to recover the articles of furniture or their value
from her husband, on the ground that they
were her separate property, and in August 1875
she preferred a claim in her own name lo the
property, under § 81 of Act IX. of 1850. It
was found on the facts that the furniture was
the property of the plaintiff. The husband and
wife were persons subject (o the provisions of
Di,iii,.db»Goo<^le
( m )
DIGEST OF CASES.
(
)
HUSBAND AND WIFE— ™»*rf.
Act X. of 1865, § 4, and the Married Women's
Property Act of 1S7+ -.—
field, that under § 7 of Act III. of 1874 the
suit was maintainable by the plaintiff against
her husband.
Held, also, that a judgment for the plaintiff
n the si
from her husband, could not, without satis,
faction, change the property in the goods and
vest it in the husband from the time of the con.
version, and, therefore, that the claim under
Act IX. of 1850 was-also maintainable. Harms
o. Harris. Garth, C. J., and Pontlfex, J... I. L.
Itep. I Cal. 286, 1876.
IDOL— Power of Shebait to bind Estate of.
See Dewutter. 1. 2.
pROSUNNO KuMARI B. GOLAB
Chand ...L. Rep. 2 I. A.
146.
KONWAR DOORGANATK V. RaM-
chunder ,.L. Rep. 4 I. A.
62; I. L. Rep. 2 Cal.
341.
Right to Exclusive Worship of— Right to
Turn of Worship of— Limitation Act IX.
of 1871, Sched. II., Arts. 118-131.
See Right to Worship of Idol.
EHSAN ChUNDER v, MoNMOHINi...
I. L. Rep. 4 Cal. 033.
Right to Turn of Worship of.
See Right to Sue. 6.
Debendronath v. Ooit Churn...
I. L. Rep. 3 Cal. 390.
Trust in favour of.
See Hindu Law— Pai tition. 7.
Ram Coomar u. Jogender Nath.
I. L. Rep. 4 Cal. SO.
Will— Dedication by Will of Property for.
See Hindu Law— Will. 13.
Ashutosh u. Doorca CHURN...L.
Rep. 3 1. A. 182.
1 Worshippers of — Right to sue for Breach
of Trust of —Property.
See Right to Sue. 10.
Radhaeai v, CdtMNAjt Ram 11
Sau...L L. Rep. 3 Bom.
37.
UARA-Right of Renewal.
See Right of Occupancy. 3.
Jardine, Skinner &Co. p. Ram
Surat Soosdarv Debi L,
Rep. SLA. 164.
LTARADAR— Enhancement of Rent by.
See Enhancement of Rent. 7.
DOORGA PROSAD S. J0VNARAIN...I.
L. Rep. 2 Cal. 474.
IJMAIJJ PROPERTY- Suit for Rent of.
See Landlord and Tenant. 4.
Annoda Churn ». Rally Coomar.
I. L. Rep. 4 Cal. 89.
ILLEGAL COMPANY.
Set Company. 1.
Bhikaji v. Bapu I. L. Rep.
I Bom. 550.
ILLEGAL CONSIDERATION.
See Contract. 18,
Fateh Singh t. Sanwal Singh.
I. L. Rep. 1 All. 76).
ILLEGAL CONTRACT- -Government Ferry
Farm— Admission of Partner.'] M. took a lease
for three years of a Government ferry, and co-
venanted with the Magistrate who granted the
lease, not to sublet or assign the lease without
the leave or license of the Magistrate. It. sub-
sequently admitted B. as his partner to share
with him equally in the profits to be derived
from the lease ;—
Held, that such partnership was not void by
reason of the covenant not to underlet or assign
the lease. Gauri Shankar v. Muhtaz Alt
Khak...I, L. Rep.2AU.
411, 1879, F. B.
ILLEGAL GRATIFICATION - Accept-
ance of — by Public Servant.
See Penal Code, i 165,
Empress v. Kaupta Prasad ... I.
L. Rep. 1 AIL 630.
Attempt to obtain.
See Attempt. 2.
Empress t. Baldeo Sahai ..I. L.
Rep. 2 AIL 263.
— i — Receipt of — by Public Servant — Poddar of
Bank of Bengal.
See Penal Code, j 21, 01. 9.
Morn's Mohun.,.1. I.. Rep. 4 Cal.
376.
mortized by Google
)
DIGEST OF CASES.
(
)
ILLEGAL OATH ADMINISTERED BY
ARBITRATORS— Validity of Award
founded on Evidence taken on.
See Oaths Act X. Of 1878, 55 8, 10,
13.
Wali-ul-la i7. Ghulau Au.,.1,
L. Rep. 1 AIL 633.
ILLEGALITY OF OATH OTHER
THAN IK PRESCRIBED FORM
ADMINISTERED BY ARBITRA-
TORS — Objection to— first taken oi
Special Appeal.
See Ofti.hu Act X. of 1873, §§ 8, 10,
13.
Wali-ul-la. v, Ghulam Ali...L
L. Rep. 1 All. S3S,
ILLEGITIMATE CHILD-Custody of.
See Maintenance.
Lai. Das e. Nekunjo Bhaishiani.
L L. Rep. 4 Cal. 374.
ILLEGITIMATE SON OF HINDU OF
ONE OF THE THREE REGENE-
RATE CLASSES (BRAHMANB.
ESHATRIYAS, VAISYAB) NOT
ENTITLED TO INHERIT, BUT
TO MAINTENANCE ONLY.
See Hindu Law — Inheritance —
Illegitimate Son. 3. 4. 5.
NlLMONEY SlNCII DEV t. BANNK-
SHUK...I. L. Rep. 4 Cal.
91.
Rami ». Govind... I. L. Rep. 1
Bom. 97.
Naravan v. Laving. ..L L. Rep.
2 Bom. 140.
ILLEGITIMATE SON OF SVDRA BY
CONTINUOUS CONCUBINE EN-
TITLED TO INHERIT WITH
LEGITIMATE SONS.
See Hindu Law — Inheritance —
Illegitimate Son a. 1 to 5.
Gopal ». Hanhant .,1. L- Rep,
3 Bom. 278.
Narrain v. Rakhal ..1 L. Rep.
J Cal. 1.
Sakasuti i. Manu...I. L. Rep.
3 All. 134.
Rahi it. Govind.-.I. L. Bep.
1 Bom. 97.
Narayan v. Laving... I. L. Rep.
3 Bom. 140.
ILLEGITIMATE SON OF BUDRA
(OB GOSAVI), OFFSPRING OF'
ADULTEBY, NOT ENTITLED
TO INHERIT-BUT ONLY TO
MAINTENANCE.
See Hindu Law — Inheritance —
Illegitimate Bon. 4. 5. 6.
Rahi v. Govind... I. L. Bep. I
Bom. 97.
Nahavan v. Laving ... I. L. Bep.
a Bom. 140.
VlJtARAJIUTHI V. SlNGARAVEt.U ...
I. L. Rep. 1 Mad. 306.
ILLEGITIMATE SON — MAINTE-
NANCE OF — Alienation of Ancestral
Estate for.
See Hindu Law— Maintenance of
Illegitimate Son. 8.
Rajah Parjchat v. Zalih Singh.
L. Rep. 4 I. A. 159 ; I. L.
Rep. 3 Cal. 214.
Offspring of Adulterous Intercourse among
Sudras (or Gosavis) entitled to-
See Hindu Law— Maintenance of
Illegitimate Son. 1. 3.
VlRARAHUTIIt H- SlNCiARAVELU. ...
I. L. Bep. 1 Mad. 306.
Nilmonev Singh Deo v. Banne-
shur„.X L. Rep. 4 Cal. 91.
See Hindu Law — Inheritance —
Illegitimate Son. 4. fi. S.
Rahi if. Govind...! L. Rep. 1
Bom. 97.
Nahavan v. Laving. ..I. L. Rep.
2 Bom. 140.
ILLICIT SALE OF LlttUOR— Act X. of
57, 6a— Luwur-] On the 30th of Octo-
ber 1877, a license for the sale of spirituous and
tented liquors by retail was granted to A^.,
lave effect from the 30th of October to the
of December; 1877. The expiry of the
ise was not noticed by the revenue authori.
themselves, and A', continued to sell spirt.
is and fermented liquors until the tlth of
January 1878, when, it occurring to her to obtain
iewal of the license, she applied for and
obtained' a renewal of the license up to the 31st
of March 1S7S, such renewal being indorsed as
follows on the license (which was then handed
back to her);-" This license is extended up to
the 31st of March 1878.'' One of the condi-
D,gltlzed by G00gle
(
)
DIGEST OF CASES.
ILLICIT BALE OF LIftUOR-m»W.
tions of the license was that a monthly fee of
Rs. 8-5-4 should be paid to Government in
advance for every month 01 the term for which
the license was granted. In accordance with
this condition, A\ paid Rs. 25 on the license
being first granted, and Rs. 25 on its renewal,
which sum was accepted by the Government
without any objection, nor was anything said to
N., at the time of the renewal, about her having
incurred any of the penalties provided by Act
X. of 1871. On the 14th of January 1878, three
days after the renewal of the license, AVs ser-
vant was convicted by the Assistant Magistrate,
under § 62 of Act X. of 1871, of the illicit sale
of liquors between the 1st of January and the
10th of January 1878, and sentenced to pay a
fine of Rs, 100, or to undergo imprisonment of
one month in the civil jail : —
Held, that the conviction could not be main-
tained. The renewal indorsement on the license,
without any objection stated, and the payment
and acceptance, in advance, of the whole fees due
under the license, were strong circumstances of
condonement on the part of the Government of
any neglect that A', may have been guilty of, and
showed the possession by A\ of a license with
all the conditions fulfilled, and more than ful-
filled, entitling her to sell spirits and liquors
from the 30th of October 1877 to the 30th of
March 1878, continuously. At least after the
conduct of the revenue authorities, it did n<
in their mouths to contend that between the tst
and Ilth of January, A', was acting without
authority or license from them. In no view of
the case could A', be regarded as other than i
licensed vendor for the whole period up to (hi
31st of March 1878, during which the licensi
was in operation. There was no reason why thi
provisions of § 32 of Act X. of 1871— which
enacts that where there is an intention n<
renew a license, notice of such intention shall be
given to the Collector at least 15 days befon
the year expires, and that if such notice be noi
given and the Collector does not recall suet
license, it shall remain in force as if it had beer
formally renewed— should not apply to the casi
of a license for less than a year; nor was there
anything in the Act to show that it wa:
intention of the Legislature that it should be
otherwise in the case of short licenses.
Even if things were entire, and there were
none of the peculiarities relating to the excise
authorities above stated, it would be quite al-
ILI.ICIT BALE OF LiaUOB (,«W.
lowable to hold that the term "licensed vendor"
§ 62 must be taken to mean a vendor licensed
unlicensed within the meaning of the sections
of the Act on licenses generally, and constitu-
ting Ch. VI., and a person not being in that posi-
r>n — as If. clearly was not— could not be said
have incurred the penalty of § 62. Empress
Seymour. Stuart, C.J...I. L. Rep. 1 All.
Note.— As to this case Turner, J., said in
Empress -v.Mohiitdra Lai {I. L. Rep. I All. 638—
infra at pp. 640, 641) — " The learned Chief
Justice considered that any breach of the Act
had been condoned by the action of the Collector
in receiving the fees and renewing the license ;
but he doubted whether in advertence to the
terms of ( 32 of the Act the master of Seymour
could be held to be unlicensed, and,. therefore,
whetherany offence had been committed. I am
constrained to say that I cannot regard the
acceptance by the excise authorities of an excise
fee in ignorance of a contravention of the law as
a condonation of the offence if the offence had
been committed. The acceptance of the Fee would
not warrant the quashing a conviction for sales
made prior to the acceptance of the fee, if those '
sales were in fact illegal, and if the sales on
which the prosecutions were founded were illegal
In Dharamdas's case (I. L. Rep. I All. 635) I
should have held them equally illegal in Sey-
mour's case." But the learned Judge agreed
with the reasoning of the Chief Justice as to the
legality of the conviction in reference to the
terms of § 32 of the Act, as will be seen by refer-
ence to Empress v. Mohtndra Lai, infra, 3.
2. ActX- of 1871, I 62.] D. was the
holder of a license for the sale of spirituous and
fermented liquors by retail for a period«enni-
nating on the 31st of December 1877. On the
loth of January 1878, his license not having
been renewed by the Collector, D. sold some
spirits by retail. On these facts he was con-
victed of the illicit sale of liquor. Subsequently
he applied for a renewal of his
Held, that under st
iction was good. Empress t. Dharamdas.
Xuart, C.J L L. Rep. 1 All.
835, 1878.
8. Act X. ef 1S71, §§ 3*. 57, 62-
Jtense.J The petitioners' mistress held a li-
D.gmzed by G00gle
( 701 )
DIGEST OF CASES.
( 70S )
ILLICIT BALE OF LlftUOB -ctmtd.
cense (or the sale of fermented liquors by retail
for a period of three months, terminating on the
31st December 1877. The bolder of the license
did not give to the Collector any notice of her
intention not to renew the license, nor had the
license been recalled by the Collector prior to
the 8th of January 1878. From the 1st to the
8th January 1878, inclusive, the petitioners sold
by retail fermented liquors. On these facts
they were convicted, under ( 62 of Act X. of
1S71, of the illicit sate of liquor : —
Held, that the provisions of § 32 of Act X. ol
1871 applied to the licenses which, under the
rules made by the chief revenue authority for the
N.-W. Provinces, may be, and in practice are,
granted for periods of three months. Notice
must be given of the intention not to renew the
license, and if no such notice is given and the
license is not recalled, the license granted to, and
the engagement taken from, the holder of the
license remain in force as if they had formally
been renewed. Inasmuch, therefore, as no notice
had been given by the petitioners' mistress of an
.v her li
it had
not been recalled, she still enjoyed the privilege
of selling in virtue of the authority conferred
by it, and, therefore, on the facts found, the
petitioners could not be convicted as unli-
censed vendors. If the petitioners' mistress
omitted to pay the monthly fee for her license in
advance, she could be prosecuted under J 57 of
the Act ; but the petitioners, not being the hold-
ers, but only the servants of the holder of the
license, could not be convicted under that sec-
tion, Emfiressv. Seymour (I. L. Rep. I All. 630)
observed upon. Empress v. Mohindra Lall.
Turner,] L L. Bep. 1 AIL 638, 1678.
IMMEDIATE POSSESSION.
See Limitation. 35.
Madkub Chundbr v. Shah
Chand I. I.. Hep. 3 Cal,
948,
XHKOBAL COHSXDEBATION-Gift on.
See Gift. 1.
Lachmi Narain v. Wilayti Be.
gam. ..I. L- Bep. 2 AIL 433.
■ Past Cobabition is not.
See Contract. 4.
Man Kuar it. Jasodha Kuar.. I.
L. Bep. 1 AIL 476.
IMMORAL CUSTOM — Dancing Girls —
Public Policy, ,] In a suit by the dancing girls of
temple for a declaration of the rights of the
Deva Dasis of the temple in regard to (1) the
•n of Deva Dasis, (2) to the Dharmakar-
ta's power to fine and suspend them, and that
the Court should ascertain and declare the rights
of the plaintiffs, the existing Deva Dasis, as to
:lusion of alt other Deva Dasis save those
related to, or adopted by, some one of the Deva
Dasis for the time being, or those elected and
proposed to the Dharmakarta for dedication ;
id that the Dharmakarta might be restrained
from stamping and dedicating other Deva Dasis
but such as were duly approved, and that in-
quiry might be held whether the Dharmakarta
is a fit person for that office i —
Held, that what the plaintiffs sought was that
they should be declared to have by custom a
1 the introduction of any new Deva Dasi,
other words, they claimed by custom a
monopoly in their profession of Deva Dasi ; and
the Court could not shut its eyes to what was the
purpose of that profession, as it was per-
fectly notorious that it was prostitution and the
gains from that source.
Assuming, therefore, that the evidence bore
it the statements of the plaintiffs, and es-
tablished that by the custom of the temple they
had the rights they claimed, and that the custom
1 some respects fulfilled the requisites ofavalid
istom, it was still apparent that the Court, in
aking the declaration prayed for, would be
recognizing an immoral custom — a custom, that
it an association of women to enjoy a
poly of the gains of prostitution, — a right
which no Court could countenance. Chihna
Ummavi o. TecarA Chbtti. lanes mAKernan,
JJ I. L. Bep. 1 Had,. 168, 1876.
IMMOVEABLE PROPERTY - COMPU-
TATION OF VALUE OF IN-
TEREST CREATED IN, FOB
PUBPOSESOFBEGISTBATION-
Present Value of Interest, and Amount
of Consideration stated in Document,
irrespective of Future Profits or Interest,
Measure of Necessity to register.
See Registration. 1. 7. 8. 9. 16. 17.
18. 20.
Karak Singh v. Ram Lall I.
L. Bep. 2 All. 86.
Satra i. Viskau I.L. Bep. 2
i.97.
D.gmzed by GoOgle
(
)
DIGEST OF CASES.
IMMOVEABLE PROPERTY — COM-
PUTATION OP VALUE OF IN-
TEREST CREATED IN, FOR
PURPOSES OF REGISTRATION
Nana*. Anant Ibid. 883.
Shankarv. Vishnu. . .L L. Rep. -
1 Bom. 67.
Nana v. Anant I. L. Rep. 3
Bom. 3
Naksappa v. Goruvappa L Ii.
Rep. 1 Had. 378.
Ram D. Kooer v. Thacoor Roy...
I. L. Rep. 4 Cal. 81.
Ahmad Baksh v Gobindi...I. L.
Rep.2AU.S18.
Centra, see Registration. 19, 31.
Rajafati Singh v. Rah Sakhi
KuAR...I.L.Rep.3AU.40.
Darshan SlNGH 9. HANH:
I. L. Rep. 1 All. 274.
IMMOVEABLE PROPERTY— Execut it
oi Decree of Mofussil Small Cause Court
See Execution of Decree. 22.
Gopal «. Nanku...I. L. Rep. 1
All. 624.
— Execution of Decree of Small Cause
Court— Presidency Town.
See Execution of Decree. 24.
Joojivan ...I. L, Rep 1 Bom. 82.
— Gift of separate — to Hindu Wife by her
Husband.
See Hindu Law— Gift. 3.
Ruhr NtRAiN Singh ■
Kuar ... I. I, Rep. 1 All.
73
Given by Hindu Husband to Wife i
alienable by her at pleasure.
See Hindu Law— Stridhan. 3.
Venkatab. Vensata. L L. Rep.
1 Mad. 281.
— Inherited by Grandmother from Grandson,
not Stridhan,
See Hindu Law— Stridhan. 2.
Phukar Singh i. Ranjit Singh...
I. L. Rep. 1 All. 601.
IMMOVEABLE PROPERTY-
- Interest in.
See Limitation. 81.
JUNESWAR DaSS v. MaHABBER
Singh ..L. Rep. 3 I. A. 1 ;
L L. Rep. 1 Cal. 163.
- Interest in — Decree charging Land.
See Sale in Execution of Decree. 7.
Musamat Bhawani Koar *. Gu-
lab Rai ..L L. Rep. 1 All. 348.
- Interest in — Jalkar.
See Jalkar.
Parbutty Natkb. Mudho ...I. L
Rep. 8 Cal. 276.
- Interest in— Right to Worship of Idol is
See Right to Worship of Idol.
EHSAN CHUNDER 0. MoNMOHIM...
I. L. Rep. 4 Cal. 683.
- Jurisdiction of Small Cause Courts.
See Small Cause Court— Presidency
Town. 2. 8.
Nowla Ooha v. Bala Dhurmaji
L L. Rep. 3 Bom. 91.
Walji Karimji v. J,
r'REMji.,.1. L. Rep.
■84.
- Purchased by Hindu Widow with her Stri-
See Hindu Law^-- Alienation by
Widow. 3.
Hindu Law— Stridhan. 3.
Hindu Law- Will. 9.
Venkata o. Venkata. L L.
Rep. 1 Mad. 281.
- Purchased by Hindu Widow with Money
granted in lieu of Maintenance.
See Hindu Law— Alienation by
Widow. 4.
See Hindu Law— Will 8.
Nei
1 Kum
Mas
- Toda Garas Hat payable by Inamdar from
Rents of Village.
See Toda GaranJHak.
Maharana Futtehsangi o. Dr.
sai Kalianrai.-.L. Rep. 1
I. A. 34.
Digitized byGOO^IC
DIGEST OF CASES.
( TOO )
IMMOVEABLE PROPERTY- «»r<*.
Standing Crops are—for purposes of Act
IX. of 1871.
See Standing Crop*.
Pandah Gavi n. Jbhwuddi...L L.
Rep. 4 Cal. 865.
IMPARTIBLE PROPERTY.
See Hindu Law — Impartible Pro-
perty.
Doorqa Persad Singh «. Doorga
Kohwari...L L. Rep. 4 Cal.
190.
IMPARTIBLE ZEMINDARY.
See Hindu Law — Inheritance —
Pr i m ogen iture .
Chowdkrv Chintaman Singh v.
Musst. NOWLUKHO KoNWARr.
L. Rep. 2 I. A. 363 ; I.
L. Bep. 1 Cal. 153.
. Succession lo — for which no Permanent
Sunn ud has been issued.
See Succession to Impartible Ze-
mindary , Ac.
Sri Raghunadha v. Sri Brozo
Kishoro.-.L. Rep. 3. 1. A.
164 ; I. L. Rep. 1 Mad.69.
Transfer of— by Deed of Family Arrange-
ment to Younger Brothers — Succession
of Widow thereto as Separate Estate.
See Hindu Law— Separate Pro-
perty. I.
Piriasami v. Periasami L.
Rep. 5 1. A. 61; L L. Rep.
1 Mad. S12.
IMPLIED CONTRACT.
See Married Woman's Separate
Property, 3,
Bbresford v. Hurst ..I. L. Rep.
1 All. 772.
Money- paid for Government Revenue
during Wrongful Possession — Right to
See Right to recover Government
Revenue paid during
Wrongful Posada a ion.
TiluckChandif.SoudaminiDasi.
X. L. Rep, 4 CaL 566.
IMPLIED TRUST— Hindu Executor— Void
Bequest to Unascertained Class— Suit by
Heir.
See Limitation. 38.
v Dosseb e. Door.
:y Dosseb...!. L.Rep.
4 Cal. 455.
IMPLIED WARRANTY— Sale by Sample,
See Sale of Goods. 1.
SWdshi Mohunb. Nobo Krishto.
I. L. Rep. 4 CaL 801.
IMPRISONMENT— Application for Dis-
charge from.
See Civil Procedure Code, Act X. of
1877, § 342.
Rattansi Kalianji.,.1. L. Rep.
a Bom. 148.
IMPRISONMENT FOR CONTEMPT OF
COURT— Jurisdiction— Art X. of 1877, j. f 341,
342.] The decree in an administration suit
directed A., a party to the suit, to pay over a
of money, which she admitted was in her
hands, to her own attorney in the suit, to be
applied by him as directed by the decree. A.
refused to pay over the money, and she was
imprisoned for disobedience to the Court's Order.
After she had been in prison for six months,
she applied to the Judge of the Court below,
under § 341 of the Civil Procedure Code, to be
discharged. This order was refused.
Held, on appeal, (hat rhe proceeding under
which A. had been imprisoned was not in execu-
tion of a decree; but that she was imprisoned
under process of contempt, and that the provi-
sions of f i 341 and 34a did not apply to the
Per White, J— The jurisdiction of the High
Court to imprison for contempt, is a jurisdiction
which it has inherited from the old Supreme
Court, and was conferred upon that Court by the
Charter of the Crown, which invested it with all
the process and authority of the then Court of
King's Bench and of the High Court of Chancery
in England, and this jurisdiction has not been
removed or affected by the new Code of Civil
Procedure. Martin d. Lawrence. Garth, C.J.,
and White, ] I. L. Rep. 4 CaL 655, 1878.
IMPRISONMENT IN DEFAULT OF
PAYMENT OF FINE.
— When Fine only inflicted.
See Criminal Procedure Code, Act
X, of 1878,1808.1.
Reu. 9. Muhammad Satb...I. L.
Rep. 1 Mad. 277.
Under Act VIII. of 1873, (7°.
See Criminal Procedure Code, Act
X. of 1872, (309.3.
Empress v. Parba.,.1. L. Rep. 1
AU. 461.
D.gmzed by G00gle
( ™ )
DIGEST OF CASES.
( T08 )
IMPRISONMENT IN DEFAULT OF
PAYMENT OF FINE-omiM.
■ Sentence of — cannot be a Bed to Substan
tive Sentence, so as to give Appeal.
Sec Presidency Magistrates' Act
IV. of 1877, §167. 1.
Jotharam Davav.-I. L. Rep. 2
Had. 30.
IMPROPER ADMISSION OF EVI-
DENCE—Insufficiently Stamped Docu-
See Appeal— Civil. SO.
KhOOB I.A1.1. V. JUNGLE SlNGH..
I. L. Rep. SCal. 787.
— Power of High Court, on Case Reserved or
Certified, to consider Merits,
See Evidence. 13.
Reg.u. Hurribole...I. L. Rep. 1
Cal. 207.
&f Power of the High Court, on
Case Reserved or Certified,
to consider the Merita of the
Case. 1.
Reg, v. Pitambbk Jina I. L.
Bep. 2 Bom. 61.
Unstamped Document.
See Errors not affecting Merits. 1.
Afzul-un-Nissa v. Tej Ban. ..I.
L. Bep. 1 All. 728.
INADEQUACY OF CONSIDERATION-.
See the Cases under Unconscion-
able Bargain.
See Purchase by a Trustee.
Dhonendhur Chunder v. Muttv
Lall ..L. Bep. 2 I. A. IB.
Suit to stl aside a Deed."] A party seeking
to set aside a transaction on the ground of in.
adequacy of consideration, must show such in-
adequacy as will involve the conclusion that he
either did not understand what he was about,
or was the victim of some imposition The
Administrator General of Bengal n Jug-
cbswar Rov ... I. L. Bep. 3 Cal. 192 ; 1 Cal.
Bep. 107, 1877, P. C.
• INADEQUACY OF PBICE — Execution
Sale.
See Sale in Execution of a Decree.
18.
IN AM CSVm-TaiilandClient—Considera.
I Hon— Nudum Pactum.] An agreement, execut-
ed by a client to his vakil, after the latter had
accepted a vakalatnama to act for the former in
:ertain suit, whereby the client bound himself
pay to the vakil, in the event of his eonduct-
ing the suit to a successful termination, a cer-
| tain sum in addition to the vakil's full fees, field,
Inudum factum, and a suit founded on it dis-
j missed as unsustainable. Ramckandra Chin-
taman v. Kalu Raju. Wcstropfi, C.J., and MM.
'.till, J T. L. Bep. 2 Bom. 362, 1877.
I INAM COMMISSIONER'S DECISION—
'Act XI. of iSja.] In an inquiry held by the
I Inam Commissioner under Act XI. of 1852, that
officer decided that a certain Inam village should
be continued to the male descendants of the
original grantee.
Held, that the Inam Commissioner's decision
was only intended to regulate the duration of
the exemption of the village from assessment,
and not to regulate the enjoyment of it as
between the heirs of the original .grantee.
Vasadev Anant ». Ramkriskna Narkavan.
Wtstropp, C.J., and MeMU, J...L L. Bep. 3
Bom. 529, 1878.
INAMDAB — Enhancement of Rent by —
Right of.
See Miras. 2.
VlSHNUBHAT V. BaBAJI I. L,
Rep. 3 Bom. .145, n.
Set Enhancement of Bent. 5.
Parsotam v. Kalvan...L L. Bep.
3 Bom. 348.
-Mira
-Enhance
GlRDHAKI V. HURDEO NaRAIN
L. Bep. 8 I. A. S3
1/ of Rent by Inamdar.]
ihancethe tent of Mirasi
tenants is limited. He cannot demand more rent
than what is fair and equitable according to the
custom of the country. Prataprav GujARr.
BAVAjl Namaji, West and Pinhey, JJ...I. L.
Bep. 8 Bom. 141, 1878.
Lakshman 0. Ganpatrav Ballal.
Mflvilland Kimball, JJ...Ibid. 146, n.
" If Mi rasi land was ever extensively held at a
permanently fixed rent, it has long since gene-
rally ceased to be so. There must be further
proof than the fact that the defendants have
been styled Mirasdars to entitle them to fixity
of rent. The District and Subordinate Judges
have not arrived at any finding on the material
D,gltlzed by G00gle
< 709 )
DIGEST OF CASES.
( no >
ISAXDAR-contd.
issue in the case, via., Were the first and second
defendants, or either of them, and theit father
or other ancestors, entitled to hold the land in
dispute previously to the grant of the same in
inam to the plaintiff's father, in perpetuity at an
invariable rent ? If the defendants are not en-
titled to hold the land at an invariable rent, the
plaintiff may, in the absence of any special con-
tract to the contrary, demand such rent for it as
he pleases ; and if the defendants be, as alleged,
Mirasdars, they will be entitled to hold the land
. at such rent as the plaintiff thinks fit toil
mand, or, if they think his demand too high,
surrender the land to him." Per Westropp,
C.J., in Vishnubhat v. Babaji . ..I. L. Hep.
3 Bom. 14S, n.
Note.— With reference to the above remark
of Wistropp, C.J., West, J., in delivering judg.
ment in Pratai'Rav o. Bayaji ubi supra, say;
(p. 142) that " the question of a limit to the
inamdar's right, apart from the absolute fixity
of the rent relied on by the defendants, was n<
dwelt on in argument here, any more than it w:
dealt with in the judgment of the District Cour
The parties seem to have been content to plac
their cases respectively on the alternative between
an invariable limitation on the one hand and
an absolutely unlimited right to enhance or
Other, Confining the remark of the learned Chief
Justice, then, to the case then under trial as it was
actually submitted to the Court, it does not
appear that they are necessarily in contradiction
to the principle laid down in the earlier decision
{Laksman v. Ganpat, ubi supra), and it was not
the intention of the Court, we think, to say that
in no Case whatever can an inamdar be subject
to any limitation at all in enhancing the rent,
except where the rent is quite invariable."
8. Rights of Common — Enclosure.']
Land which has been immemorially used as
pasture ground of a village, cannot be enclosed
at will by an inamdar (without regard to the
■ terms of his grant) merely by virtue of his being
inamdar. VtSHWANATtt v. Mahadaji. West
and Pinhey, JJ...L L. Hep. 3 Bom. 147,
1879.
INCOME TAX.
See Boad Cess Act (Bengal Act X
of 1871).
SUKNOWOVEE V. KOOMAR PlIRRESH
Nakain.,.1. L. Rep. 4Cal.
576.
INCOMPETENCE, DISMISSAL FOR.
See Master and Servant. 1.
MacGillivrav „. Jokai Assam
Tea Co.., I. L. Bep. 2 Cal.
33.
INCOMPLETE CONTRACT-,^ IX. of
187*, § 39— Registration— Evidence Act I. of
1872, § 92, proviso 4 — Oral Agreement to rescind
Registered Contract.] D. executeda conveyance
of a house to P., which was duly registered by
P., but the purchase money not being paid, P.
never obtained possession. Shortly after the
registration of the deed, P. returned it to D. with
an indorsement to the affect that it was returned
because P. was unable to pay the purchase,
money. The right, title, and interest of /".were
subsequently sold in execution of a decree
against P. The plaintiff became the purchaser
at the Court's sale, and sued D. (or possession.
The lower Courts threw out the claim, on the
ground that the property had not passed to P.,
the transaction being an incomplete contract.
Held, 1st— That the transaction was not in.
complete. The deed putported to make an im-
mediate transfer of the ownership of the house
in consideration of value already received, and
when executed, delivered and duly registered,
it operated as a conveyance, and P. became the
owner of the house.
2nd— That the indorsement of the deed did
not affect the property, because it was not regis-
tered.
yd — That as the deed of sale had been regis-
tered, no oral agreement to rescind it could be
proved — under the Evidence Act I. of 1872, (91,
CI. 4.
4(6— That the plaintiff, as purchaser of P.'s
ight, was the legal owner of the house, but that
he had acquired P.'s title subject to all P.'s
ities ; and as D. had a lien upon the house
for the unpaid pur chase -money, the plaintiff
Id not get possession of the house without
paying off that charge. Umedmal. Motirah v.
Davu DhoNDIBA. Melvill and Kemball,]] I.
L. Bep. 3 Bom. S47, 187S.
INCONTINENCB-Of Hindu Mother, dis-
qualifies from inheriting to Son.
See Hindu Law— Disqualification
to Inherit. S.
Ram.natut. Duroa Sutm.iRi...!.
L. Bep. 1 Cal. 550.
Diarized by Google
DIGEST OF CASES.
INCONTINENCE—
-Of Hindu Widow after Inheritance vested
works no Forfeiture.
See Hindu Law- Disqualification
to Inherit. 4.
Bhavani v. Mahtab Kuar I.
I,. Rep. 2 All 171.
See Hindu Law— Inheritance —
Widow. 1.
Nehalo*. Kishen Lal 1.1.
Bep. 3 All. 180.
Sir Hindu Law— Maintenance of
Widow. 13.
HONAMA ». TlMANBHAT I. L.
Rep. 1 Bom. 669.
— Of Hindu Woman does not disqualify from
Inheriting, or keeping Inherited Stridhan.
See Hindu Law — Disqualification
to Inherit. 3.
Mi
Gan<
w
ta..L L. Rep. 1 Alt 46.
INDIAN ARTICLES OF WAR
See Act V. of 1809.
INDIAN COMPANIES' ACT X. OP 1806
See Company. 1.
Bhikaje n. Bapu I. L. Rep. 1
SeeVowm of Directors to bind Com.
pany by Bill of Exchange.
The New Fleming S. & W. Co.
(Limited) I. I*. Rep. 3
Bom. 439.
- § 141 — Notice of Appeal — Service of —
Extension of Time for Appeal.
See Company — Winding up. 2.
Lallah Barroomulp. The Offi-
cial Liquidator... I. L.Rep
4 Cal. 704.
— § '49 — Transfer of Assets to New Com-
pany— Right of Creditors of Transferring
Company.
See Company— Winding up. 1,
The Fleming S. & W. Co. (Limit-
ed) I. L. Rep. 3 Bom
INDIAN COMPANIES ACT X. OF 1866
—contd.
§ IS4 — Transfer of Assets lo new Company
— Right of Creditors of Transferring Com-
pany.
See Company — Winding up. 1.
The Fleming S. & W. Co. (Limit-
ed).,. I. L.Rop.SHom. 299.
§ 175— Transfer of Assets to New Com-
pany— Right ol Creditors and Dissentient
Shareholders of Old Company— Sanction
of Court.
See Company— Winding up. 1.
The FlemingS.& W. Co. (Libit,
ed) '..I. L. Rep. 3 Bom. 299.
INDIAN COUNCILS ACT.
See Stat. 24 and 30 Vict., C. 67.
INDIAN DIVORCE ACT IV. OF 1869.
See the cases collected under Divorce.
INDIAN INSOLVENT ACT 11 & 12
VIC, C 21.
f 23 — Order and Disposition.
See Insolvency. 3. 4. 6.
- § 26— Disputed Title, Question of.
Set Insolvency. 6.
Umbica Chundun.,.1. L. Rep. 3
Cal. 434.
■ § 36— Right of Witness summorted under,
to appear by Counsel.
Sec High! of Witness to appear by
Counsel.
In the matter of NUBSEV KesSOWJEE...
I. L. Rep. 3 Bom. 270.
§ 40— Trust.
See Insolvency. 7.
Vardala Charm. ..I. L. Rep. 2
Mart. IS.
INDIAN SUCCESSION ACT X OF 1866
-I*
See Domicile.
In the Goods of Elliott... I. L. Rep.
4 Cal. 106.
§4 — Husband and Wife — Marriage in India
between Persons -aitk English Domicile— Succes-
sion to Moveable Property.] H. M., a British
subject, having his domicile in England, mar-
ried in Calcutta, in April 1866, C, a widow, who
at the time of her marriage was also domiciled
in England. C, after her marriage with H. M.,
became entitled as next of kin to shares in the
D,gltlzed by G00gle
DIGEST OF CASES.
{ 71* )
INDIAN SUCCESSION ACT X. OF
lMS-cvnM.
moveable properties of her two sons by her for-
mer marriage ; these shares were not realized or
reduced into possession by C. during her life-
time, nor by her husband H, M. C. died in 1873,
leaving her husband, but no lineal descendants.
In March 1874, H. M. filed his petition in the
Insolvent Court, and all his property vested in
the Official Assignee. In April 1875, letters of
administration of the estate and effects of C.
were, with the consent of H. M., granted to the
Administrator General of Bengal, by whom the
shares to which C. became entitled as next of kin
of her sons were realized. In a special case
stated for the opinion of the Court under Ch.
VII. of Act VIII. of 1859:—
Held, that the general rule is that the rights
which arise on all occasions, whether marriage
or suctession, whether by the acts of the parties
or by operation of law, are as to moveable pro-
perty governed by the law of the domicile
where, in contemplation of law, the moveables
Section 4 of Act X. of 1S65 does not apply
in respect of the moveable property of persons
not having an Indian domicile; and the domi-
cile of the parties being in England, the English
law was to be applied, and therefore the Offii
Assignee, as assignee of the estate of //.
was entitled to the whole fund realized by
Adm
Gene
Mil
General op Bengal. Markby,
..I. L. Hop. ICal. 412, 1876.
-6 5-
See Domicile.
In the Coeds of Elliott... I. L
Hep.4Cal. 106.
—— § 10.
See Domicile.
In the Goods of ELLIOTT I. L.
Rep. 4 Cal, 106.
§ SO— Attestation of Will.
See infra 2.
See Attestation of Will.
In the Goods of Royiioney Dos-
see-.-I. L. Hep. 1 Cal. 150.
I, ■ { $0, CI. 3-— mU— Acknowledgment
by Testator] It is a sufficient acknowledgment
by a testator ol his signature to his "ill if he
makes (he attesting witnesses understand that
the paper which they attest is his will, though
INDIAN SUCCESSION ACT X. OP
186B— contd.
they do not see him sign it, or observe any
ignature to the paper which they attest, pro-
vided that theConrtis satisfied that the testator's
ignature was on the will when they attested it.
Ianikbai 0, HormasJee BOMANJI. Green,].,.
I. L. Rep. 1 Bom 547, 1877-
3- S 5°, CI. 3,— Will — Attestation.
Signature—Mark.'] The direction contained in
SO, Ct. 3, of Act X. of 18S5 as to the signature
: witnesses attesting an unprivileged will, is
ot satisfied by the witnesses affixing their
iarks. It is necessary for the validity of a will
that the actual signature, as distinguished from
. mere mark, of at least two witnesses should
ippear on the face of the will, D. Fernandez
'.R-Alves. Meivill andF. D. Mttmtt, JJ...I.
L. Hep. 3 Bom. 882, 1679.
J s6~Revocatian of Will—Lmvful Poly go.
nous Marriage.] The will of a Jew dated the
23rd of November 1856, made subsequently to
his, first marriage, but previously to his second
iage in 1873, in the lifetime of his first
wife ; Held to be revoked by such second mar-
riage under § 56 of Act X. of 1865- Gabriel n.
Mordakai. Phear, J....I. L. Rep. 1 Cal. 148,
1875.
f 98— Gift to Class — Postponement of
Period of Distribution— Members of Class
born after Testator's death, but before
Period of Distribution, take.
See Will. 5.
Maseyk c. Ferousson I. Ti,
Rep. 4 Cal. 670.
98— Semble, Section 98 of Act X. of 186.I
applies only to vested interests. Pontifex, J.
in Maseyk s. Fergusson ... L L. Rep. 4 Cal.
304.
S. C. underWilL4.
-ft 101,102 — Residuary Bequest— Vested
Interest— Period of Payment postponed.
See Will. 4.
Maseyk v. Fergusson ... L L.
Rep. 4 Cal. 304.
- § 18S.
Set Probate. 3.
KoMOLLOCHUN B. NlLRUTTUN, ..X
L. Rep. 4 CaL 360.
DiQitized by G00gle
( 71S )
DIGEST OF CASES.
( :ia )
INDIAN SUCCESSION ACT X. OF
1865— com d.
232— Amendment of Probate.
See Probate. 4,
In the Goods of Whitb...L L.
Rep. 4 Cal. 882.
§242.
See Probate. 3.
KoMOLLOCKUN 0. NlLBUTTL'N...I-
L. Rep. 4 Cal. 380,
250— Right of Creditors of Alleged Heir
of Testator to oppose Grant of Probate.
See Probate. 6.
Deskputty Singh. ..I, L. Rep. 2
Cal. 808.
§ 258— Grant of Letters of Administration
■mitk Will annexed.] Letters of administration
with the wilt annexed may, under § 258 of Act
X. of 1865, be granted after the expiration of
seven clear days from the death of the testator.
In the Goods o/WiLSON. Phear, J. ..I. L, Rep.
1 Cal. 149, 1876.
§269.
See Executors, Power of,
Seals r. Brown. ..L L. Rep. 1
All. 710.
INDIGENT DAUGHTER THOUGH A
CHILDLESS WIDOW, RIGHT OF,
TO INHERIT— Benares Law.
See Hindu Law — Inheritance —
Daughter. 8.
Srimati Uma Devi v. Gokoola.
hand Das... L. Rep. 6 I. A.
40 ; I. L. Rep. 3 Cal.
587.
INDIGO F ACT0RIE8— Mortgage— L iii bilitjr
of Mortgagee—Lien by Custom']. A. sold to B.,
the proprietor of an indigo concern, of which C.
was a mortgagee, certain bags of indigo seed.
The agreement of sale contained no pledge of
the crop of indigo, the product of the seed, as a
security for its price. Subsequent to the sale,
and after the seed had been planted, C, under a
decree on his mortgage, obtained possession
of the factory. In a suit by A. against B. and C-
for the price of the seed; —
Held, that, in the absence of any agreement
by C. to pay the debts of B„ C. could not beheld
liable.
INDIGO FACTORIHS -contd.
There is no lien by custom on an indigo
factory, or on the produce thereof, in respect of
any debt of the factory. MoNOKUR Doss 1.
McNAUGHTEN. Markby and Prinsep. JJ ..I. L.
Rep. 8 Cal. 331,1877.
INDUCEMENT BY PERSON IN AU-
THORITY—Confession obtained by.
See Evidence. 15.
Empress v. Rama Birapa.-X L.
Rep. 8 Bom. 12.
INFANT (and see Minor)— Adoption of—
Agreement between Natural and Adop-
tive Parents, defining and restricting
Rights of.
See Hindu Law— Adoption. 6. 17.
Radkabaiv. Gakesh...I. L. Rep.
3 Bom. 7.
Ramaswami e. Vencataramaiyan.
L. Rep. 6 I. A. 193.
Alienation by Guardian of — Certificated
and Uncertificated Guardians — Powers.
Sec the cases under Alienation by
Guardian.
Set Mortgage. SO. 30.
See Hahomedan Law— Sale by
Guardian.
See Sale by Guardian.
See Review. 10.
- Alienation by Guardian of— Suit to set
aside on — attaining Majority — Limita-
See Alienation by Guardian. 1.
Prosonno Nath b. Afzolonessa.
L L. Rep. 4 Cal. 532.
-Appointment of Guardian to — Children of
Deceased Member of Undivided Hindu
Family.
See Certificate of Administration
to Minor's Estate,
KVA...L L. Rep. 3 Bom. 431.
- Appointment of Guardian to— after pre-
vious Refusal.
see Act ix. of iaei, ( i.
Nehalo b. Nawal...I. L. Bep. I
All 438.
Diarized by Google
( 717 )
DIGEST OF CASES.
( ns )
INFANT-nmrrf.
— — Authority to adopt given by.
See Hindu Law— Adoption. 10.
Jumoona Bamasoondert.,.1. L.
Hep. 1 Cal. 389; L. Rep.
3 I. A. 73.
■ Custody of— Loss of Caste does not deprive
Father of Right of.
See Loss of Caste.
Kanahi Rah v. Biddya Rah. ..I.
L. Bep. 1 All. 549.
i Custody of— Prostitution of Lega! Guardian
disqualifies for Right of.
See Mahomed an Law— Guardian.
Abasi v. Dunne L L. Rep. 1
AIL 688'
Exposure of — with intent to abandon.
See Conviction on several Char-
ges. 3.
Empress u. Banni...L L. Rep. 3
All. 349.
Gift to, by Father or Guardian— Posses-
See Kahomedan Law— Drift. 3.
L. Bep. 3 I. A. 87.
To whom Guardian ad Litem appointed.
See Majority Act IX. of 1875, f 3.
Sattva Ghosal v. Suttvanund
Ghosal...!. L. Rep. 1 Cal.
388.
Liability of— for Debts incurred by Guar-
dian in Ancestral Trade carried on for
Benefit of.
See Hindu Law— Ancestral Trade.
JOVKISTOC. NlITVANUND I. L.
Rep. 3 Cal. 738.
Mortgage by Guardian of— Certificated and
Uncertificated Guardians— Powers.
See the cases under Alienation by
Guardian ; Kahomedan Law
—Bale by Guardian; Mort-
gage, 89, 30.— Sale by Guar-
dian, and Review. 10.
■ Sale of property to pay Debts of Deceased
Father, when binding on.
See Mahomedan Law— Infant.
Hamir Singh v. Musammat 2a-
BIA...I. L. Bep. 1 AIL 67.
INFANT— amtd.
Sale by Guardian of— Certificated ano Ua.
certificated Guardians— Powers.
See the cases under Mahomedan
Law— Sale by Guardian
—Alienation by Guardian
—Mortgage, 39, 30-Sale
by Guardian, and Review. 10.
Suit on behalf of — Certificate of Adminis-
tration still necessary.
See Bombay Minora Act XX. of
1864, t 3.
Murubhar v. 8updu...I. L. Bep.
3 Bom. 149.
Unauthorized Alienation of Property of —
by de facto Guardian.
See Lien. 1
Kuvakji v, Moti,.,I. L. Bep. 3,
Bom. 334.
See Mortgage, 39, 30.
Abhaser Begun e. Maharanee
Rajroop K don war... I, L.
Bep. 4 Cal. 33.
DEBl DUTT SaHOO tr. SuBODRA
Ribee I. L. Bep. 3 Cal.
383.
INFORMATION TOTHE POLICE -Omis-
sion to give— by Agent or Owner of Land.
See Criminal Procedure Code, Act
X of 1673, i 90.1. 3.
Empress d. Achiraj Lall...L L.
Bep. 4 Cal. 603.
Empress o. Sashi B. Chucker-
butty Ibid. 623.
INFRINGEMENT OF EXCLUSIVE
BIGHT OF FISHING IN A PUB-
LIC BIVER.
See Criminal Trespass. 3.
Empress v. Charn Naviaii...!.
L. Bep. 9 Cal. 864.
INFRINGEMENT OF FERRY;BIGHT6.
See Ferry Bights.
Luchmessur Singh v. Leelananq
Singh I. L. Bep. 4 Cal.
699.
INFRINGEMENT OF PATENT— Li mi ta.
tion to Suit for an Account of Profits
obtained by.
5(w Limitation. 60.
Kinmonoif. Jackson. ..I. L.Bep,
8 Cat 17.
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DIGEST OF CASES.
( 7M )
INFRINGEMENT OP PATENT— contd.
Act XV. of I&59— Measure of Damages-
Public or Actual User,] In a suit under Act XV.
of 1859, for the infringement of a patent, where
the plaintiff has been in the habit of licensing the
use of his own invention for a royalty, the loss
of that royalty held to be the proper measure of
damages.
Per Sfankie, J.— By Act XV. of 1859. an in.
vention is new if it shall not, before the time of
applying for leave to file the specification, have
been " publicly used" in India, fee., Ot " have
been publicly known" by means of a publica-
The meaning of " public use" is, that a man
shall not by his own private invention which he
keeps locked up in his own desk, or in his own
breast, and never communicates, take away the
right that another man lias to a patent for the
need not be general. It has been held that a
single instance of such use would be sufficient,
but it must be public, i.e., a use in public, not
necessarily iyitie public.
Where the defendant did not allege in his
written statement that the invention was public-
ly used at certain places prior to the date of the
petition for leave to lite the specification, but
was allowed to give evidence of such user : —
Held by Spaniie, J., that the evidence was
inadmissible, and that the plaintiff was not
bound before trial to have called, upon the de-
fendant to supply the particulars as to such
places. Shsen d. Johnsoh. Stuart, C. J., and
Spankie,] I. L. Hep. 2 AIL 368, 1S79.
E— Adopted Son, Right of—
to Property inherited by Adoptive Mo-
ther from her Father.
See Hindu Law — Inheritance—
Adopted Son.
Sham Kuar v. Gava Din ...I.
L. Sep. 1 All. 266.
— Among Ascetics,
See Hindu Law — Inheritance —
Ascetics.
Khuggender v. Sharungir.
I. L. Rep. 4 Cal. 543.
— Of Brothers in Undivided Hindu Family-
Brothers of Whole Blood exclude
Brothers of Half Blood in Bengal.
INHERITANCE— contd.
See Hindu Law — Inheritance —
Brothers. 1. 2.
Rajkisuore r. GobindChunder.
I. L.Rep. 1 Cal. 27; 24
W. Rep. 234 ; L. Rep.
4 L A. 153. n.
SMEO SOONDARV B. PlKTHEE
Singh L. Rep. 4
L A. 147.
— But do not exclude Children of Deceased
Brother.
See Hindu Law— Inheritance—
Brother a. 3.
Debi Parshad p. Thakuf Dial...
I. L. Rep. 1 All. 10S.
See Hindu Law — Inheritance-
Nephews.
Bhimul Doss «. Choonee Lall...
I. L. Hep. 2 Cal. 379.
— Brother's Daughter's Son excluded by
Great -Grandson of Grandfather of De-
ceased,or by Father'sBrother'sGrandson.
See Hindu Law — Inheritance —
Brother's Daughter's Son.
Juggut Narrain Singei o. Col-
lector OF MANBHO01I...L L.
Bep. 4 Cal. 413.
See Certificate to collect Debts. 1.
Oodovchurn MlTTER. L L.
Rep. 4 Cal. 411.
— Of Daughters to Father— Absolute Estate
in Bombay Presidency.
See Hindu Law — Inheritance —
Daughters. 1.
Haribhat v. Dahodarbhat...!.
L. Rep. 3 Bom. 171.
Limited Estate under Mitakshara.
See Hindu Law — Inheritance —
Daughters. 4.
Ciiotav Lall ». Chunnoo Lall.
L. Rep. 6 I. A. 15 ; L
L.Rep. 4 Cal. 744.
— Of Daughters inter se— Childless Widow-
hood does not prevent Right of — bj
Survivorship.
See Hindu Law — Inheritance —
Daughters. S.
AUHIRTOLAL BOSB C. RaJONEE-
kant Muter.., L. Rep 2 1.
D,gltlzed by G00gle
DIGEST OF CASES.
( 722 )
INHERIT AN CE— ronrrf.
— Of Daughters-Childless Widowed— In-
competent for — in Bengal.
See Hindu Law — Inheritance—
Daughters. 3.
AuUIRTOLAL BOSE V. RaJONEE-
kant Mitter ..I. L. Sep. 3
All. 113.
Secus in Benares, though Indigent.
See Hindu Lav — Inheritance—
Daughters. 3.
Srimutti Uma Devi v. Gokoola-
nand Das,..L. Hep. 5 I, A.
40 ; I. L. Rep. 3 Cal. 687.
— Daughter's Sons — excluded from — to Ma.
ternal Grandfather's Estate by Daughter
not disqualified.
See Hindu Law — Inheritance —
Daughter's Sons. 1. 3.
AuMIRTOLAL BOSE o. RaJONEE-
KANT MITTEB...L. Eep. 3 L
A. 113.
Baijnatht.Mahabir...L L. Rep.
1 AU. 608.
— Disqualification for.
See the Index heading Disqualifica-
tion to Inherit.
— Father's Brother's Grandson excludes
Daughter's Son.
Sec Certificate to collect Debts.
OODOVCHUR!*M[TTEB...I. L. Rep.
4 Cal. 411,
— Father's Sister's Son excluded by Great-
Grandson of Great -Great -Grandfather of
Deceased.
See Hindu Law— Inheritance-
Father's Bister's Son.
Thakoor Jeebnath Singh v. Thi
Courtof Wards —L. Rep
SLA. 163
Si'calso Hindu Law — Inheritance —
Brother's Daughter's Son.
Juogat Narra in Singh v. Collec-
tor of Manbhoom I. L.
Rep. 4 Cal. 413.
And see Certificate to collect Debts.
INHERITANCE— amid.
Female— Right of —to Shebaitship.
Set Hindu Law— Adoption. 3.
JANOKEB DEBEA D. GOPAUL AcHAR-
jea.-.I. L. Rep. 3 Cal. 365.
See Hindu Law — Inheritance —
Brothers. 1. 3.
Rajkishoks t>. Go bin Chunder...
I. L. Rep. 1 Cal. 37; 34
W. Rep. 234; L. Rep. 4
I. A. 153.
Sheo SuN'uAkve. Pikthee Singh.
L. Rep. 4 I A. 147.
- Half-Brother, separated, excluded by Full
Sister.
See Hindu Law — Inheritance —
Sister. I.
Sakkaram S. Adhikari v. Sita-
bai I. L. Rep. 3 Bom.
363.
- Illegitimate Son of the three Regenerate
Classes (B rah mans, Kshatriyas, Vaisyas)
excluded from — in absence of Local Usage
to contrary.
See Hindu Law— Inheritance— H-
legitimate Son. 3. 4. S.
Nilmonev Sing Deo v. Banne-
SHUR...I. L.Rep. 4 Cal. 01.
Rahi -j. Govind I. L. Rep. 1
Bom. 07.
Nakavanu. Laving.. ,L L. Rep. 3
Bom. 140,
- Illegitimate Son of Sudra by Continuous
Concubine — Half-Share with Legitimate
Son — Whole Estate in absence of Legiti-
mate Son, Daughter, or Daughter's Son.
See Hindu Law— Inheritance— Il-
legitimate Son. 1. 3. 3. 4. 6.
Gopal v, Hanmant . I. L. Rep.
3 Bom. 373.
Naraih v. Rakhal...L L. Rep. 1
Cal. 1.
Sakasuti v. Manu..,I. L. Rep. 2
1.
OODOVCHU
nMit
Rahi v. Govind...
L L. Rep. 1
mortized by Google
DIGEST OF CASES.
( 724 )
INHERIT ANCE-.-a« td.
Illegitimate Offspring of Adulterous Inter
See' Hindu Law— Inheritance— Il-
legitimate Son. 4. 5. 6.
Rahi b. Govind I. L. Bep. 1
Bom. 97.
Narayan d. Laving. I. L. Rep.
a Bom. 140.
VlRARAMUTHI Jf. SlNGARAVELlt ...
I. L. Rep. 1 Had. 306.
Impartible Zemindary — Family Custom.
Srr Hindu Law— Inheritance— Pri-
mogeniture.
MlISST. NOWJ.UKHoKONWARI
L. Hep. 21 A. 263; I L.
Rep. 1 Oal. 163.
Impartible Zemindary for which no Perma-
nent Sunnud has been issued— Right of
Government to nominate to.
5ff Succession to Impartible Ze-
mindary for which no Per-
manent Sunnud has been
issued.
Sri Ragunadha v. Sri Brozo
Kjshoro ..L. Rep. 3 I. A
154 ; I. L. Rep. 1 Sad. 68
• Impartible Zemindary — Succession of
Widow to — as Separate Property.
See Hindu Law — Separate Pro-
perty.
PERIASAMI a. Pf.HIASAHI.,.1. Rep.
6 I. A. 61 ; I. L. Rep. 1
Mad. 312.
— — among Jains.
See Jain Law. 3. 3.
Sheo Singh Deo o. Musst. Da-
kho...L. Rep. 6 I. A. 87;
I. L. Sep. 1 AIL 686.
Ciiotav Lal v. Chunnoo Lall...
L. Bep. 6 L A. 16 ; I. L.
Bep.4Cal.744.
— among Khoj as— Widow of Childless Khoja
excludes Sister.
See Xhojas. 1.
Rah ima thai v. Hirbai I, L
INHEBITANCE— conld.
Missing Person— Presumption of Death-
Hindu and Mshomedan Law.
See Evidence. 21.
PERMESHAR RAI d. BlSHESHAR
Singh. ..I. L. Rep. 1 AIL
S3.
- Mother disqualified for— by Unchastity.
See Hindu Law — Disqualification
to Inherit. 5.
Ramnathd.Doorga Sundari ..L
L. Rep. 4 CaL 660.
- Mother — Estate of — limited as that of
Widow.
Sec Hindu Law — Inheritance —
Mother.
SAKHARAM t, SlTABAI I. L.
Bep. 3 Bom. 363.
— Nephews— Undivided Family.
See Hindu Law — Inheritance —
Brothers. 3.
Deei Parshao o. Thakur Dial...
1. L. Bep. 1 All. 106.
Sec Hindu Law Inheritance —
Nephews.
BiiiwAL Doss ir. Ckoonee Lall...
I. L. Rep. 2 CaL 379.
— Primogeniture.
AY* Hindu Law — Inheritance—
Primogeniture.
Chowdhrv Chintaman Singh «.
musst. nowlukho konwari.
L. Rep. 3 I. A. 363 ; I. L.
Bep. 1 CaL 163.
— Relinquishment of Right of.
Sec Hindu Law— Relinquishment
of Share by Son.
Balkrishna if. SavITKIHAI.„I. L.
Rep. 3 Bom. 64.
— Return— Widow's Right to— to Exclusion
See Mahomedan Law — Inherit-
ance—Beturn,
Mahohkd Arshad Chowohby w.
Sajida Bannoo...!. L. Rep.
3 CaL 703.
— To Right of Occupancy.
Sec Act XVIII. of 1873, § 9. 3.
Bhagwanti o.Ruqr Man Tiwari,
L L. Bep. 3 AIL 140.
D.gmzed by GoOgle
DIGEST OF CASES.
X NKERITANCE— «« W.
among Saniasis.
See Hindu Law— Inheritance— Sa-
INHKB,ITANCE-™«frf-
Widow— Joint Widows.
Madho Das v. Kamta Das.. ..I.
L. Sep. 1 All. 639.
- Sister— Full Sister excludes Half-Brothei
or remote Separated Male Relative.
See Hindu Law— Inheritance—
Siatera. 1. 2.
Sakhabam v. Sitabai L L.
Bep. 3 Bom. 363.
Dhondu n. Ganoabai. Ibid. 860.
—Stridkan — Husband excluded by Brother,
Mother, and Father, as to Property give
after Marriage, by Father's Sister's Son.
See Hindu Law — Inheritance—
Btridhan.
HUKRYMOHUN * SoHAruN...I. It.
Rep. 1 CaL 276.
AjAFATTI NlLAMANI ».
GaJAPATTI RaDHAMANI,
L. Rep. 4 I. A. 212 ;
I. 1. Bep. 1 Wad.
290.
O Disqualification
See Hindu Law Disqualification
to Inherit. 3.
Musst. Ganqa Jati *. Ghasita...
I. L. Rep. 1 AIL 46.
— Widow — of Cotraja Sapinda.
See Hindu Law — Inheritance —
Widow. S.
LALLUBHAI V. MANKUVABBAI...I.
L. Rep. 2 Bom. 388.
- Widow's Incontinence does not work For-
feiture of— once vested.
See Hindu Law— Disqualification
to Inherit. 4L
Bhavani o. Mahtab Kuae.-.I. L.
Rep. 2 All. 171.
See Hindu Law — Inheritance -
Widow. 1.
NEUA.L0 1'. KlSHEN LAL...I.
L. Rep. 2 AIL 160.
See Hindu Law — Maintenance of
Widow. 12.
HONAMAV. TlMANBHAT I. L.
Rep. 1 Bom.
INHERITED PROPERTY NOT 8TRI
DHAN ACCORDING TO MTTAK-
8HARA AND BENGAL LAW.
See Hindu Law— Stridhan. 1. 2.
JUGMOHITN V. SARODAMOYEE...I.
L. Rep. 8 Cal. 149.
Phukak Singh ». Ranjit Singh,
I. L. Rep. 1 All. 661.
See Hindu Law — Inheritance —
Daughters. 4.
Chotav Lall «. Chukhoo Lall..,
L, Rep. 6 L A 16 ; I. L.
Rep. 4 Cal. 744.
- As to Bombay Presidency.
See Hindu Law — Inheritance —
Daughters. 1.
Harkibhat o. Damodharbhat...
I. L. Rep. 8 Bom. 171.
INJUNCTION— To Abate Public Nuisance.
Sec Right to Sue. 1.
Saktu«. Ibrahim I. l.Rep.
2 Bom. 467.
To Discontinue Nuisance — Breach— Ju-
risdiction o( Court issuing— to try Person
com m it in £ Breach.
Set Criminal Procedure Code, Ant
3E. of 1878, * 473.1.
Reg. c. Parsapa Mahadevaf-a...I.
L. Rep. 1 Bom. 339.
- To Restrain Celebration of Marriage with
Person other than Plaintiff— Interim In-
junction.
See infra. 1.
- To Restrain Decree-holder from executing
Set infra. Q.
D,gltlzed by G00gle
t 727 >
DIGEST OF CASES.
( «8 )'
INJUNCTION— amid-
To Restrain Intruder on Office of Vatandar
Joshi from receiving Fees.
See Disturbance of Office . 3.
Raja Shivappa n. Krishnabhat.
I. L. Rep. 3 Bom. 323.
— To Restrain Exercise of Power of Sale in
Mortgage.
See Mortgage. 32.
Jagjivam v. Skridhar I. L.
Rep. 2 Bom. 262.
To Restrain Publication of Libel"
See infra. 8.
Mandatory.
See Mandatory Injunction.
Jahnadas e. Atharah I. L
Suit for — to Restrain Defendants from work-
ing Mines on their Land within certain
distance from Plaintiffs' Boundary — Dis-
puted Boundary — Suit for Land — Juris-
diction ■
See Suit for Land. 1.
E. I. ftv, Co. <r. Bengal Coal Co.
I. L. Rep. 1 Cal. 95.
1. — — Interim Injunction to restrain De-
fendant from celebrating the Marriage of her
Daughter nith a Person other than Plaintiff— Act
VIII. of 1S59, §g oa and 93 — Betrothal— Specifii
Performance.'] Sections ozand 93 of Act VIII. of
1859 are inapplicable to a suit for specific perfc
mance of an agreement to give in marriage, a
the Court will not grant an interim injuncti
to restrain the defendant from giving her daue
ter in marriage to another.
Per Clover, ].— The right of the petitioner to
have an injunction pendente life depends on the
nature of the remedy which a Court would
in the suit; and if it could be shown that a
decree for specific performance would necessarily
follow proof of the petitioner's betrothal to the
girl, an injunction might properly be granted,
without it the suit might, and probably would, be
infructuous. But § 93 of Act VIII. of 1859 was
never meant to apply to such a case. As
general rule, a decree for specific performance
a contract is only given where an award of
damages would be an incomplete relief, and the
breach of promise to marry or give in marriage
is one to which a money penalty has, in England
at least, always been considered adequate. The
authorities quoted in support of the argument
INJUNCTION-™»W-
that Hindu Law demands the carrying out of a
marriage when certain ceremonies have been
performed, did not seem to go further than to
declare it usually wrong to break such engage-
ments. A betrothal is not, according to Hindu
law, an actual and complete marriage, nor such
a contract as the Court will order specific per.
formance of. A suit for specific performance
of a contract to give in marriage will not lie ;
the remedy is an action for damages for breach
of the contract. In the matter of Gunpitt
Naraih Singh. Clover and Milter, JJ I. L.
Rep. 1 Cal. 74, 1876.
3. To restrain Decree-holier from extent'
ing Decree — Court ef Co-ordinate Jurisdiction —
Erroneous Order of Substitution— Specific Relief
Act I. of 1877.] An injunction did not, under
the law as it existed previous to the passing of
the Specific Relief Act (I. of 1877), lie against a
decree-holder, by assignment or otherwise, to
restrain him from executing a decree granted
him by a Court exercising co-ordinate jurisdic-
tion with the Court in which the injunction was
applied for on the ground that the proceedings
by which the decree was obtained were alto-
gether illegal.
The cases in which injunctions were granted
by the Court of Chancery against proceedings
in other Courts in England, proceed upon the
assumption that the rights of the parties cannot
be fully inquired into except in the Court of
Chancery itself.
Under the Specific Relief Act no injunction to
stay proceedings can be granted unless the Court
in which the proceedings are to be stayed is sub-
ordinate to that in which the injunction is sought.
Dhubonidhi-j Sen n. The Agh* Bank. Jack-
son, C.J. (Offg.), Marhby and Ainslie, JJ...I. L.
Rep. 4 Cal. 380 ; S CaL Rep. 383, 1878.
But see this case on Review — Vol. t,
Cols. 676, 677.
8. To restrain Publication of a Libel—
Bombay Act I. of 1873— Ultra Vires.] The Court
will not restrain by injunction the publication
of a libel, though distinctly affecting the com-
plainants in respect of their trade or business.
Nor will the Court interfere by injunction at
the suit of an individual in case of an assumption
by an incorporated body of powers beyond those
conferred upon it, except where such individual
has been damaged by such excess of power in
respect of his tights of ownership, or rights of
mortized by Google
( 728 )
DIGEST OF CASES.
)
INJUNCTION— amid.
There is no authority for the proposition that
an individual is entitled to protection by way of
injunction against the acts of a Corporation,
though in excess of their powers, which affects
that person's character and reputation, whet hi
private, professional or commercial, which he
would not have been entitled to, bad the
complained of been committed by an individual
defendant, on the ground that the act in ques-
tion was one which the corporation had no power
to do under the instrument of incorporatiot
The Trustees of the Port of Bombay have, as
much as any private individual, the power
record their decisions and opinions with regard
to matters connected with the business they have
under their Act, power to transact — whether
such decisions or opinions are confined to state-
ments of what they believe to be actual facts, 01
extend also to the giving of advice for the con-
duct of successors in office with regard to such
business; and whether the expression of such
decisions, opinions, or advice may or may
contain statements injurious to the character
and reputation of others.
Where, therefore, the plaintiff sought for an
injunction to restrain the Trustees of the Poitof
Bombay from publishing two resolutions alleged
to reflect injuriously on his character and repu'
tation, on the ground that it was not within the
power conferred on the Trustees by Bombay Ai
I. of 1873 to discuss or pass resolutions, affecting
his character, and that the publication of
resolutions was calculated injuriously to affect
him in his commercial relations with the Govern -
Held, that the injunction could not be granted.
Held, also, that though the Courts, under
certain circumstances, might have the power of
so framing an order for an injunction as to pro-
duce the effect of cancelling the minutes of a
resolution recorded in the books of a corporate
body, yet that it could not order the Trustees of
such a body to pass and record a resolution
dictated by the Court. Shepherd v. The
TaUSTECS of the Port oe Bombay. Green. J...
L L. Rep. 1 Bom. 132, 1B76-
INSOLVEN CT -■ Composition —Assignment
by Debtor of Property in Trust for Cre-
ditors.
See Arbitration. 3.
Kheta Ma! sr. CHUNI Lai 1. I.
L. Sep. 2 All. 173.
INSOLVENCY- -tontd.
Jurisdiction in— of District Court of Akyab.
See Jurisdiction. 8.
/» 'f AcDoor. Hameu.,.1. L. Rep.
4 Cat. 94.
— — Of Manager of Joint Ancestral Trade.
See Hindu Law— Muinten.au ce of
Widow. 9.
Johurra Btbi v. Sreegopal Mis.
SE8..I.L.B*p. lCal.470-
Order and Disposition.
See Insolvency. 3. 4. 5,
Of Plaintiff— Objection as to— first taken
on Second Appeal — allowed.
See Appeal— Civil. 24.
Sadodin v. Sp:ers...I, L. Rep. 3
Bom. 437.
Trust Property Held by Insolvent.
See Insolvency. 7.
1. Right to Sue.} Where the plaintiff,
who had taken the benefit of the Insolvent Debt,
ors' Act, but had not obtained his discharge, sued
to enforce certain rights in respect of an estate
in certain lands created by a settlement made
before he filed his petition in insolvency; —
Held, that any rights which the plaintiff had
under the settlement vested, as soon as the Court
made its order under § 7 of the Indian Insolvent
Act, in the Official Assignee ; and that a suit to
enforce such rights could be maintained by the
Official Assignee only.
Herbert v. Sayer (L. Rep. 4 Q. B. D. 2o3) and
Jameson cV Co. v. The Brick and Stone Co. (5 Q.
B. 965) distinguished. Those cases do not fur*
ish any authority for holding that any insolvent
may bring a suit to enforce the terms of a settle -
■tit regarding landed property, made before
he files his petition in insolvency. Sadodim o.
RS. Ifelvill and Kemball. JJ...I. I.. Hep.
3 Bom. 437, 1879.
S. C. under Appeal— CiviL 25.
3. Right if Official Assignee-Sale of
Lands for Arrears of" Tinai" {Rent).} In a
o recover certain lands which the plaintiff
had bought at an auction sale held by the reve-
luthorities for arrears of " tirvai " (rent),
due by the defendant, it appeared that the de.
fendant had taken the benefit of the Insolvent
Act, and included in his schedule the amount of
rrears of "tirvai" for which the lands were
as an admitted debt —
D,gltlzed by G00gle
C 751 )
DIGEST OF CASES
( 732 )
INSOLVENCY— contd.
Held, that no interest in the property in ques-
tion passed to the Official Assignee by the vest-
ing order. The interestoftheparrfl-holderisone
dependent on. his payment of rent, and if he docs
not pay, his right to hold ceases.and becomes sale-
able, for whatever it is worth, (or arrears. It is
a case of a contract of letting ; and the Official
Assignee must have expressed his intention
to talte it, and must have taken it cum onere,
otherwise he acquired no right or interest in the
land. The Official Assignee not having elected
to talte the contract, the defendant could not set
up thejiu tertii of the Assignee. Chinna Sub-
BARAVA MlJDALt V. KANDASVAMI ReDDI. Hit-
Itnvay and fanes, J] I. L. Rep. 1 Had. 59,
1878*
8. Indian Insolvent Act it and 12 Vict.,
C.n,\ 23— Order and Disposition—True Owner J,
N., an original allottee of shares in the A. Com-
pany, assigned them for value to the plaintiff.
No transfer was ever executed, and no notice of
the assignment was given to the Company, which
subsequently went into liquidation. A", became
insolvent and filed his petition. The plaintiff
sued the liquidators of the A. Company to re-
cover the amount due in respect of the five shares
in the first distribution of assets.
Held, that at the time of Jf.'s insolvency the
plaintiff was the real owner of the shares in
question, within the meaning of f 23 of the
Indian Insolvent Act, and as he had omitted to
give the Company any notice of the assignment
to him, and had, in fact, no transfer or assign-
ment at all executed in his own favour which
the Company under their Articles were bound to
recognize or act upon, he bad consented that
the shares in question should be in the P order
or disposition " of JV., and that therefore the
shares, with the consequent right to receive any
distribution of assets in respect of them, vested
in the Official Assignee on AT.'s insolvency.
Seoiblr, though in a certain sense one who is
under an obligation to convey property to
another is, In a Court of Equity, a trustee of it for
the latter, yet this principle does not apply in
cases where the reputed ownership clause of the
Insolvent Acts is in question. Bhavan M ulji v.
KavaSji J. Jasawala. Westropp, C.J., and Green,
J ....I. L.Hep. 2 Bom. 542, 1878.
4. Hand II Vict., C. 21, § 23— Order
and Disposition.'] On the night previous to
being adjudicated an insolvent, about 10 p.m
INSOLVENCY-™./.*.
firm of S. B. D., at their place of business, pro-
mised to give 5. a loan of Rs. 5,000 if he would the
next morning deliver to them goods to that
amount, and would in the mean time satisfy them
that he had sufficient goods in his godown, and
allow the firm of R . B. D. to put their lock on the'
door of the godown, to secure the goods until
they had received the value of the loan. B. then
took the gomastah of the firm of R. B. D. to his
godown, let him see that it contained goods worth
more than Rs. 5,000, and allowed him to put a
lock on the door, B. at the same time replacing
his own locks. The gomastah and B. then
returned to the office of S. B. D., where Rs. 5,000
were paid to B., who promised to deliver the
next morning Rs. J,ooo worth of goods out of
the godown which had been locked up. Having
received the money, B. absconded from Calcutta
that night, and next day was adjudicated insol-
vent :—
Held, that the goods in the godown were not
in the order and disposition of B. within the
meaning of § 23 of the Insolvent Act,
In the matter of Bungskedhur Khbttrt.
Matpherscn, J. ..I. L. Rep. 2 Cal. 369, 1877.
5. 11 and 12 Vict., C. 21, § 23— Order
and Disposition — Goods pledged by Insolvent and
redelivered to hirr. on Commission Sale.] St., who
carried on the business of a watchmaker in
Calcutta, borrowed from D. M. Rs. 6,000, for
which he gave a promissory note, and, as colla-
teral security, pledged certain articles consisting
ofclocks.&c, with D. M. The articles remain-
ed in D. M.'s custody for three or four months.
D. M. then re-delivered them to It. for sale on
commission, the proceeds to be applied in liqui-
dation of the debt, and obtained a receipt for
them from SI,, who subsequently sold some of
them on the above terms. On the 2nd of May
1877, Sf. filed his petition in the Insolvent Court,
and the Official Assignee, among other things,
took possession of the articles remaining unsold,
and refused to deliver them to D- It. On an
application for an order directing their return,
it was alleged that it was the custom for Euro-.
pean jewellers In Calcutta to receive articles 00
commission sale, and it was contended that
such receipt did not divest the true owner of
Held, that the articles were lightly vested in
the Official Assignee. On the facts, the insol-
vent was the true owner of the articles. At
law, the interest of the pledgee of
by Google
{ 738 )
DIGEST OF CASES.
IWSOT.VENCY— contd.
goods ceased by his ceasing to have possession
of them by his own consent) and the Contract
Act does not alter this, but describes a pledge
as a bailment : when the bailment, therefore,
comes to an end, the pledge does so likewise.
The articles, therefore, in (he insolvent's hands
were discharged of D. M.'s lien, and subject only
to the terms of the receipt, which only amounted
to an agreement to sell the goods and apply the
proceeds in payment of his debt, for breach of
which D. M. could prove and recover a dividend.
Even if D. M.'s interest did not cease, the goods
were in the disposition of the insolvent, there
being nothing to show in what way i), M. took
possession of the articles, Or that the change of
possession or ownership was accompanied by
publicity or notoriety. No amount of evidence
would satisfy the Court that there was a practice
or custom of purchasing goods from a retail
dealei and leaving them with him for commis-
sion sale ; and no arrangement by which in sub-
stance and effect one creditor secures a prefer-
ence, as to the proceeds of certain goods, over
the others, by an arrangement which leaves the
goods in the manual power of the bankrupt, can
be upheld, /nr*MuRRAY. Kennedy,]...!.. It.
Rep. 3 CaX 68, 1877.
6. II and 12 Vict., C. ai, , -'6— Question
of Disputed Title.} Where an order had been
made, under j 26 of the Insolvent Debtors' Act,
callingon a certain person to show cause why she
should not hand over to the Official Assignee
money which it was alleged that the insolvent
had paid her shortly before his insolvency, under
circumstances which might make the transac-
tion void as against creditors : — Held in the
Court below, that the transaction was a gift, and,
onder the circumstances, void as against creditors
within the Stat. 13 Elk., C. 5. Held also, that
the word 'property' in J 26 of the Insolvent
Act includes money.
Held on appeal, that the matter was not one
which could properly be dealt with under that
section, as it involved difficult questions of title.
In'Jke matter of Uubica Chundun Biswas.
Garth, C.J., and Markby, J...I. I.. Sep. 3 Cal.
434 ; 1 Cal. Sep. 531, 1878.
7. II and II Vict., C. ai, § 40— Trial
Property — Cestui-que-Trust Creditor — Proof ]
As the Indian Insolvent Act, by virtue of the
terms of ( 40, incorporates all existing and fu
IN SOLVENCY— contd.
enactments passed in England Tor the
purpose of determining what debts may be
proved ; and as by { 15 of the English Act of
1869, property held by the bankrupt in trust
for others is not the properly of the bankrupt
divisible among his creditors, such property
ot be regarded as having vested in the
Official Assignee, and a cestui-que-trust creditor
t entitled to come in and prove; because
what is being administered in insolvency is the
insolvent's estate, of which property of this
re does not form part. In the matter of
the Petition and Schedule o/VARDALA Ckarri.
r, J I. 1. Rep. 2 Hod. 15,1877.
INSPECTION- Affidavit as to Documents—
Written Statement mentioning other Do.
See Practice— Civil. S.
Kennrllvv. Wvman.,.1. Itllep.
1 Cal. 178.
-Partnership Books— All Partners not Par-
See infra. 1,
- Privileged Communications— Discretion to
See infra. 3.
- Sealing up Parts — Practice.
Set Infra. 8.
1. Production of Documents— Partner.
ship.'] The plaintiff, alleging that he had been a
partner with the defendant and others in the firm
of I. K. & Co.; and that on the dissolution of that
firm the amount then standing to his credit in
the partnership book had been carried to his
credit in the books of a new firm, in which he
and the defendant only were partners, applied for
an order on the defendant to produce, for the
plaintiff's inspection, the books of I. K. fc Co.
The defendant tesisted this application, on the
ground that the other partners in the firm of
I, K.&. Co. had an equal interest with him in the
books, and were not parties to the suit, nor shown
to have consented to the production of the
Held, that the Court was not fettered by the
strict rule which prevailed in the Court of Chan,
eery, and prevented the production of books and
papers from being compelled, where persons not
before the Court were jointly interested in them
D.gmzed by G00gle
DIGEST OF CASES.
INSPECTION— arntd.
with the plaintiff, but would be governed by all
the circumstances of each case in determining
whether the order for production would be ju:
and that, in the present case, the other members
of the firm of I. K. & Co. were sufficiently repre
sented by the defendant, and thai the books
should be produced. Haji Jakarta v Haji
Casih. Sargent, J ..L L. Bep. 1 Bom. 486,
1876.
2. Civil Procedure Cede, Act X. of 1877,
( iy>~Privileged Communications.'] Under §
1311 of (he Civil Procedure Code (Act X. of
■877), a Judge bas no discretion as to refusing
to allow inspection of documents in possessior
of a party to the suit, relating to the matter ir
question, provided they are not privileged.
Confidental communications between princi-
pals and their agents relating to matters in s
suit are not privileged. Communications to be
privileged must be confidental communications
with a professional adviser.
In a suit for an injunction to restrain the de-
fendant from using certain trade marks -.—Held,
that telegrams and letters between the plaintiff's
firm in London and their managing agent in
Bombay, relating to the subject-matter of the
suit, were not privileged. Wallace & Co. v.
Jefferson. Sargent and Bayley,]] I. L,
Bep. 8 Bom. 468, 1878.
8. .— Practice — Sealing up Parts.]
Where the defendant, stating that he was a
banker and commission agent, and as such had
large mercantile and monetary transactions with
different persons, all of which transactions were
entered in the books and documents produced
by him for the plaintiffs inspection, wished to be
at liberty to seal up such parts of the books and
documents as did not relate to the matters in
question belween him and the plaintiff, who
however stated that it was absolutely necessary
for him to inspect the whole of the books ; Pan-
ti/ex, J., ordered' that an officer of the Court
should be appointed before whom the plaintiff
should, in confidence, lay his particulars as to
why he wanted to inspect any other part of the
books, such officer to report, after looking at the
books, whether he was able to say whether and
in what way any part which the defendant wished
to seal up was material to the plaintiff's case.
Hbbralall Rl-kut v. Rah Surun Lal . L L.
Bep. 4 Cal. 839, 1876.
INSTALMENTS— Bond- Whole to fall due
on Default of Payment of Instalment —
See Limitation. 30.
Gummas. Bhiku I. L. Bep. 1
Bom. 135.
Bond Payable by.
See Limitation. 24.
Ball *. Stowsll...I. L.Bep. 9
AIL 303.
— Decree payable by— Discretion to make.
See the cases under Decree payable
by Instalments.
Decree payable by — Limitation for Execu*
See Limitation, 71. 71a. 7SL
Decree payable by — in Suit on Bond charg-
ing Immoveable Property.
See Civil Procedure Code, Act X
of 1877, § 810.
Hl-rdeo Das v. Hukam Singh...
L L. Bep. 2 AH. 320,
— — Decree payable by — Suit on— Limitation.
See Limitation. 83.
SAKHARAM V. GANE3K L It.
Bep. 3 Bam. 198.
- Oral Agreement to pay Debt by— Limit*.
See limitation. 03.
Kovlash Chunderv. Boykoonta
Nath X. L. Bep. 3 CaL
618.
- Promissory Note payable by.
See Act V. of 1866.
Remfrev ». Shillingforij.. I. L.
Bep. 1 CaL 130.
See Limitation. 30,
INSTRUMENT OF TBANSFEB-Stamp.
See Stamp. 4.
Empress v. Dwarkanath..X L.
Bep. 3 CaL 399.
INSUFFICIENTLY BTAMPED DOCU-
MENT—Admissibility of— cannot be
questioned In Appeal.
See Appeal— Civil. 20.
Khoob Lall v. Jungle Singh...
I. L. Bep. 3 CaL 787.
See Error not affecting the Merita. 1.
Afzul-un-Nissa v. Tej Ban ..I.
L. Bep. 1 AIL 726,
D.gmzed by GoOgle
( 737 )
DIGEST OF CASES.
INSUFFICIENTLY STAMPED HUN-
DI— Admissibility of— in Evidence, on
Payment of Penalty.
See Stamp. 3.
MOTWOORA MoilUN 0. PEARV Mo-
■UH..X L. Bep. 4 Cal. 250.
INSTJBANCE-ilfanne Insurance— Construc-
tion of Policy.] In a policy of insurance, effected
in Bombay on goods shipped from Calcutta
]eddab, two clauses were inserted in writing, the
rest of the policy being in the ordinary English
form. The first of these clauses was written in
the body of the policy, in English, and was as
follows i — " Warranted free of particular average,
unless stranded, sunk, or burnt." The second
clause was written on the margin of the policy
Gujarati to the following effect: — "Insurance
upon the goods to be without damage. The loss
arising from damage is to be on the head of the
owner of the goods."
Held, that the underwriters of such a policy
are liable to the insurer for a particular average
loss where the vessel, in which the insured goods
are shipped, is stranded, sunk, ot burnt. Haji
Ismail Haji See dick *. Shamji Poonjani.
Westropp.C-]., and Sargent, J L L. Rsp. 2
Bom. 050, 1878.
INTENTION TO EVADE STAMP
Empress o. Dwarkanath...I. L.
Rop. 2 Cal. 390.
INTENTION AS TO JOINT OR SEVE.
RAL OWNERSHIP.
AMK1KA DAT *. SlTKHMANI KlJAR.
I. L. Bep. 1 All. 437^
Rani bet Singh v. Koer Gujraj
SINGH...L. Bep. 1 L A. 9.
Baboo Doorga Persad 0. Musst.
Kundun KoowAR...Tbid. 55.
loss v. Sadhu
...I. L. Bep. 4
OaL 425-
Joy Narain Giri j>. Girish Chun.
der MvTi...I. L. Bep. 4 Cal.
434; I. L. Bep. OLA.
INTEREST— After Due Date of Bond contain-
ing Agreement to pay— up to Due Date.
See Interest. 1. 3. 6.
On Arrears of Rent at Enhanced Rate,
Sen Interest. 8.
Beng. Reg. XV. of 1793, 5 6.
See Interest. 2.
Consideration of — in computing Value of
Interest created in Immoveable Property,
for Registration purposes.
&e Registration 8. 16. 17. 18. LQ.
20.
Nana v. Anant...I, L. Bep. 9
Bom. 803.
Narsaya Chetti v. Guruvapx
Chetti...I. JL Bep. 1 Had.
378.
Ram Doolary Kooer v. Thaco
Roy... I. L. Bep. 4 Cal. 61.
Rajpati Singh v. Ram Sukhi
Kuar.,.1, L. Bep. 2 AIL
40.
Ahmad Baksh e. Gob indi... Ibid.
916.
Darsh an Singh v. Hanmanta,.,
I. L. Rep. 1 AIL 274.
On Costs.
See Attorney and Client. S.
MONOHUR u. RAMNAUTH...X. T..
Bep. 3 CaL 473.
See Interest. 9. 10.
See Refund of Costs paid under
Decree subsequent!? re-
versed,
Dorab Ally Khan «. Asdool
Azeez...I. L. Bep. 4 CaL
329.
D.i'n-dupat — Application of Rule of— to
Mortgages.
Sec Assignment of Mortgage,
Ganfat Pandurano c. Adarji
Dadabhai I. Ii. Bep. 3
Bom. 312.
See Hindu Law— Interest. 3.
Ramchandka it. Bhimrav...L L.
- - Bep. 1 Bom, 077.
D.gmzed by GoOgle
DIGEST OF CASES.
INTEREST— conld.
—— Dam-dnpat—Rv\e of— not applicable
See Hindu Law— Intoroet. S.
Balkrishna *. Copal I. L.
Rep. 1 Bom. 78.
—— Dam-dufal— Rule of— not applicable when
Defendant not a Hindu.
See Hindu Law-Interest. 1.
Nanchand p. Bapu...I. L. '.
8 Bom. 131.
— — Datn-dupat- -Rule of— not applicable to
Suits in Bengal Mofussil.
See Interest. 4.
On Decree.
See Interest. 11.
— On Decree— Rule of Dam-dupat inappli-
cable to.
See Hindu Law— Interest. 9.
Balkrishna v. Gopal I. L.
Rep- 1 Bom. 73
— Deducted in Advance from Loan.
Set Unconscionable Bargain. 3.
Mackintosh*. Wingrovb... I. L.
Sep. 4 Oal. 137.
— Discretion to allow — from Date of Suit w
lower Rate than Contract Rate.
See Interest, 7.
— Exorbitant.
See Unconscionable Bargain. 8.
Mackintosh e. Wingrovb. ..I. L.
Rep. 4 Cal. 137.
— — On Mesne Profits.
See Execution of Decree. 90.
Hurrodurga v. Sharrat Soon.
derv I. 1. 4 Rep. Cal.
674.
See Interest. 19.
— Mortgage — Second Mortgagee disposses-
sed by First Mortgagee — First Mortgagee
subsequently paid off — Re-entry by Mort-
gagor— Suit by Second Mortgagee.
See Dispossession of Second by
First Mortgagee.
Naraih Singh o-Shihbhao Singh.
1. Rep. 4 I. A. 10.
INTEREST— eentd,
> Not provided lor in Decree.
See Mesne Profits. 1.
Sadasiva Pulai v. Rahalinc*
Pillai L.Rep. 3 I. A.
aw.
See Inter est. 11.
- Paid in advance— Discharge of Surety.
See Principal and Surety. 3.
Protab Ch under p. GourChun-
DRR...I. L. Rep. 4 Cat 133.
- In Partition Suit.
See Hindu Law- Partition. 1.
Lakshiian e. Rawchandra ... I.
L Rep. 1 Bom. 061.
- Payment of — as such — Revival of Right to
See Limitation. 45. 46. 47.
Valia Tamburathi v. Vira Ray-
an...L IV Rep. lMad. 338.
Tegaraya v. Mariaffa Ibid.
964.
Hanmahtlal v. Ramabhai.L L.
Rep. 8 Bom. 196.
- Principal and Surety — Giving Time to
Principal— Execution against Surety.
See Principal and Surety. 3.
Ramanund v. Cnowdhry Soon.
DER...I. J* Rep. 4 Cal. 831.
- Promissory Note — Stipulation to pay High
Rate of— on Default in Payment of Note
—Penalty.
See Contract. IS.
Mackintosh p. Hurst I. IV
Rep. 3 Cal. 309.
- Subsequent to Date of Order for Winding
up Company.
See Power of Directors to bind Com.
pany by Bill of Exchange.
The New Fleming S.fc W. Co.
(Limited) L L.Rep. 8,
Bom, 438.
-In
Suit to recover Title Deeds.
See Interest. 0.
- Usurious Rate of— granted by Decree.
See Hindu Law— Undivided Fa-
mily. 7.
Luchmi Dai Koori v. Ashan
Sura.,,1, L-Rep. 2 Cal. 313.
Digitized byGOO^Ie
( 7U )
DIGEST OF CASES.
( ?« )
INTEREST— eoHiJ.
1. Mortgage Bond— Interest after D*t
Date — Rate of.'] In a suit to recover the prin-
cipal and interest due on a mortgage bond given
for the payment of the principal money with in.
terest ata stipulated rate, up to a day specified,
the Court may, in its discretion, award interest
on the principal sum from such due date at such
rate as it thinks lit, and is not bound to award
such interest at the rate stipulated for in the
The principle laid down in Cook v. Foaier (L.
Rep. 7'H. L. 27) followed. Dees Dotal Lall if.
Het Narain Singh. Kemp and Birch, J J I.
L. R*p. 3 Cal. 41, 1676.
See infra. 3.
9. Reg. XV. of 1 783, f 6-Reg . XVII. if
1806, H 2 and 3.] By J 6 of Reg. XV. of 1793
interest which has accumulated on a debt must
not be decreed to a greater sum than the
amount of the principal.
This section was extended to the province of
Benares by Reg. XVII. of 1S06, § 2, and came
into force on the 1st of January 1807, and governs
the decisions of suits instituted after that date,
though the cause of action may have arisen prior
to that date.
There is nothing in { 3 of Reg. XVII. of 1806
inconsistent with its application, inasmuch as
that section does no more than declare the rate
at which interest is to be decreed in cases where
the cause of action has arisen before a certain
period; f 3, Reg. XVII. of 1806* refers to rates
of interest; and J S, Reg. XV. of 1793 to accu-
mulationt of interest irrespective of rates. The
two sections should be read together and so
applied. Raja Baroa Kant Rai v. Bhagwak
Das. Spankit and Oldfittd, JJ...L L.Rep. 1 AIL
344, 1377.
• S. C. under Mortgage. 35.
3. Bond— Rate of Interest— Excessive
InUmt—Intemt after Due Date—Lintttatifln.]
The defendant gave the plaintiff a bond, dated
the 8th of January 1872, to secure the repayment
of Rs. 1,000 made up of a former debt and an
advance made on the date of the bond, with
Interestat 21 percent, per annum, which con tain-
«d the following terms : — " I therefore execute
this bond in respect of the sum borrowed at pre-
sent and that formerly due by me, and agree and
covenant that, having paid the entire aforesaid
sum within two years with interest at Rs. 113
per cent, per mensem, I shall take back the bond
INTEREST— «««.
that in case of default the creditor shall be at
liberty to recover the whole amount, including
principal and interest, by instituting a suit, or in
any way he pleases, from my person and pro-
perty, both moveable and immoveable 1 that until
payment of the whole debt, including principal
id interest, I hypothecate my four-anna shard
Maaza K hark a pur."
Default was made at the end of the two years
from the date of the bond, but the plaintiff did
lot institute a suit until the nth of May 1877,
ipwards of three years afterthe default, when be
ued to recover the sum of Rs. 1,913.11.0, prin-
ipal and interest due under the bond: —
Held, that there was an express contract for
the payment of interest after the expiration of
the term of two years at the rate of 21 per cent.
per annum, and that such rate was not excessive
and was recoverable by the plaintiff.
Per Stuart, C.J.— If the interest had been
excessive, the delay of the plaintiff in instituting
his suit might possibly be justly attributed to
his laches, and fairly considered to have the
effect of modifying his claim. But in the pre-
sent case such a consideration ought not to
prevent the Court from construing the bond asa
contract to be applied according to its terms,
according to which the plaintiff was not bound
to proceed to recover immediately upon default,
but might do so at any time within the period
of limitation, which, in such a case as the pre.
sent, would be 12 years from the time when the
money became due.
Per Spankie, J. — In the absence of a defined
rate of interest to be paid after the period of a
bond has expired, the suggestion of an implied
contract to pay at the same rate that the obligor
was to pay during the term of the bond could
not be allowed. The question then would be,
what would be a reasonable rate of interest to
be allowed ? The ordinary rule would appear
to be that the creditor is entitled to the intercut
payable during the term of a bond, this amount
being regarded as a fair measure of the rate to
be allowed as a penalty for the breach of con-
tract, provided the original interest claimed is
not excessive. Balder Pakoav v- Gokal Rai.
Stuart, C.J., and Spankit,]...!. L. Rep. 1 All.
603, 1878.
4. Hindu Cam—Dam -dupat— Suit in
Bengal Mofussil- Act VI. of l8jl, § 24— Con-
found Interest.^ Suit to recover Rs. 14,330
Digitized byGOO^Ie
[ 743 )
DIGEST OF CASES.
( 74* )
IWTEBEST-WW.
alleged to be due on a mortgage bond by which
the defendant agreed to pay interest at the rate
of Rs. 1-8 per mensem up to the realization of
the principal sum, to repay the principal and
interest on or before a certain date ; that the
interest should be paid half-yearly On Certa
dates; and that in case of default in the sa
payment, the unpaid interest was to be added
and considered principal, and was lo carry i
terest at the same rate as the principal. The
defendant having made default, the plaintiffs
brought this suit for the above sum, of which
Rs. 5,000 was claimed as principal, and the
balance as interest.
Held, 1st, that the provisions of § 34 of Act
VI. of 1R71 were applicable tu the Case.
section, the rules of Mahomedan and Hindu Law
are to be administered to parties Mahomedan and
Hindu respectively, only in matters of succession
inheritance, marriage, or caste, or any religious
usage or institution. The rule, therefore, of Hin-
du law that interest in excess of principal cannot
be recovered at an; one time, does not apply to
suits brought in the Mofussil of the Bengal Pi
sidency; and that there was nothing to preve
the Court from awarding the amount of inter*
which was in accordance with the contract t
tween the parties, there being no equitable ground
on which the Court could interfere.
Held, also, that according to the terms of the
bond there was to be a payment of interest in
two instalments, via., half-yearly and yearly
including not only the particular year which was
to elapse before the amount was due, but each
year until the whole sum was recovered.- Deen
DOYAL PoRAMANICK tr. KVLAS CHUNDER PAl
ChoWPHRY. Jackson and McDonnell, JJ...I. L,
Rep, 1 Cal. 92, 1875.'
8, Suit to recover Title Deeds."] In a
suit to recover title deeds and other property,
the defendant claimed a certain sum as due to
him, and in the plaint the plaintiff offered to pay
the defendant all that was due up to that date,
provided the deeds and property were given up.
The defendant, however, claimed a right lo hold
them under an adverse title : — Held, that the
defendant was only entitled to interest up to the
date of the plaint, and not up to the date when
the money was actually paid. Juggonath Doss
tr. Brijhath Doss. Garth, C.J., and Markby, J..
I. L. Rep. 4 Cal. 322; 3 Cal. Eep. 370,1878.
6. Excessive Interest — Contract to Pay
,dom to Day fixed— Subsequent Interest.] Upon
a contract to pay on a certain day money bor-
rowed with interest at a certain rate down to
that day, a farther contract for the continuance
of the same rate of interest after that day tiutil
actual payment is not to be implied. When,
therefore, the agreed rate of interest is excessive
and extraordinary, the Court will reduce the rate
to a reasonable amount. ..NANCH AND Hansraj
■o- Uapusaheb Rus tumbhai. Mttvill and Kirm-
ball, J] I. L. Rep. 8 Bom. 131, 1878.
S. C- under Hindu Law —
Interest. 1,
7. Act VIII. of 1859, i \o»,— Mortgage
Instalments — Costs.] In a suit brought to en-
force a mortgage, in the exercise of the discre-
tion given by i 104 of Act VIII. of 1859, tbe
Court of first instance gave the plaintiff a decree
making the amount awarded payable by instal-
ments, but gave no interest after the institution
of the suit. The District Court awarded in-
terest from the institution of the suit at 6 per
cent, per annum, the rate contracted for in the
mortgage being 24 per cent, per annum ; —
field, that though the stipulated rate of inte-
rest was properly awardable, it was not illegal,
or beyond the competence of the Court below,
to award, in the exercise of its discretion, a
rate of interest, from the institution of the suit,
lower than that stipulated for, and with the
exercise of such discretion the High Court
refused to interfere. Caryalko b. Nurbibi.
West and Pinhey, JJ I. L. Bep. 3 Bom.
202, 1879.
S. C under Costa. 1, and Decree
payable by Instalment. 2.
8. Arrears 0/ Rent at Enhanced Rate.]
In a suit in which a decree is given for arrears of
rent at an enhanced rate, interest is to be allow,
ed not only from the date of the decree, bit from
ime the rent became due. The non-pay-
of the rent at the enhanced rate constitutes
ause of action, or, in other words, an arrear
of rent liable for interest does not depend upon
the date of decree, but upon the date when it
became due. When a tenant is called on by
otice to pay an enhanced rate of rent, he can
ither take the initiative and complain of ex-
cessive demand of rent, or contest his liability
it; but whichever course he
adopts, and whatever the result of his contention,
judged to be due is none the less an
arrear if not paid when due. Tbe amount of
Digitized byGOO^Ie
DIGEST OF CASES.
( 1 « )
INTEBEST-ro«<<*.
rent is fixed by the notice, and if the tenant
neither pays that amount at the appointed time,
nor succeeds in showing that it is an unjust
demand, he.is liable for the consequences of his
failure to pay in due time, «*. for interest.
Khajah Ashanoollah O- Ka]EE Aktabood-
dern. Hitter and Maclean, J] I. L. Rep.
4 Oal. 684 ; 3 Cal. Bep. 3S3, 1878.
9. On Costs — Execution of Decree.]
Where the order of the Judicial Committee of
the Privy Council is silent as to interest upon
the costs decreed, the Judge of the Indian Court
which has to execute the decree has no power to
direct payment of those costs with interest.
The existing practice of the Indian Courts, not
to give in execution interest on costs unless
specially decreed, or unless submission is made
by the parties to the discretion of the Court, ap-
proved. Forester v. Thk Secretary ok State
for India in Council... L, Bep. 4 I. A. 187,
1877 ; I. T,. Bop. 3 Cal. 161.
10. On Casts — Execution of Decree]
Where a decree gives interest on the principal
sum recovered only, and is silent as to interest
on costs, the successful party is not entitled to
such interest in execution. Maktab CkunDEK
Bahadoor e Rah I. all Mookerjee. Markby
and Hitter, JJ...L L. Bep. S Cal. 351, 1677.
11. On Decrti — Execution — Separate
Suit.] Interest on a decree cannot be levied in
execution where the decree is silent as to subse-
quent interest on the amount decreed, but may
be recovered by a fresh action instituted for that
purpose. Pillai v. Pillai (L. Rep. 3 I. A. 219)
approved. Si:thGokuldasGopaldasi\ Murli.
L. Bop. 6 I. A. 78 ; I. L. Bep. 3 Cal. 602 ;
2 Cal. Bep. 166.
S. C. under Contract. 6.
U, Act XXXII. 0/1839, 5 1-] Interest
on mesne profits may be awarded as of course
from the date of the suit in a decree.
Although such interest may be awarded from
a date prior to the suit, their Lordships, under
the circumstances of this case, including an
unexplained delay in prosecuting the appeal,
directed that the interest should run only from
the date of the decree. Hurkoperbaud Roy
Chowdhrv v. Shakai-kksaud Rov Chowdhrv.
L. Bep. 5 1. A. 81, 1876; I. L. Bep1. BCaL
064 ;1 Cal. Rep. 499.
INTEREST IN IMMOVEABLE PRO.
FERTY.
See Limitation. 31.
JuNESWARtl. MAHABEBR SlNGH...
L. Rep. 8 L A. 1 ; I. L.
Rep. 1 Cal. 168.
— Decree charging Lands.
See Bale in Execution- of Decree. 7.
M US A It AT BhaWANI KUAR V. Gu-
labRai...I. L. Rsp.l All-
848.
Jalkar.
See Jalkar.
Parbottv Nath «. Mudho Paroe.
I. L. Bep. 3 Cal. 976.
Right to Worship of Idol is not an.
See Bight to Worbip of Idol.
EhlSAN ChUKDER V. MONMOHINI..,
X. L. Bep. 4 Oal. 688.
Toda Caras Halt payable by Inamdar from
Rents of Village.
See Toda Qarae Hak.
Maharana Fattehsangji ». Ds-
sai Kauahrai ... L. Bep. 1
LA. 34.
INTEREST CBEATED IN IHHOVE-
ABLE PBOPEBTT, COMPUTA-
TION OF VALVE OF, FOB RE-
GISTRATION PURPOSES — Pre-
sent Value of Interest, and Amount of
Consideration stated in Document, irres-
pective of Future Profits or Interest, .
Measure of Necessity to register.
See Bagiatration. 1, 7.8. 9. 16. 17.
18. 30.
Karan Singh «. Rah Lall, I.
L. Rep. 9 All. 96.
Satva b. Visrak L I.. Rep.
S Bom. 97.
Nana «. Ahakt Ibid. 363.
Shankar b, Vishnu. ..I. L. Bep.
1 Bom. 67.
Nana *. Anant ...I. L. Bep. 3
Bom. 363.
Narsappa v- Guruvappa...I, L.
Bep. 1 Mad. 87a
Ram D. Koek «. Thacoor Rov...
LL. Bep. 4 Cal. 61.
Ahmad Bakshv. Gowhdi.„L L.
Rep. 9 AIL 316.
D,gltlzed by G00gle
{ 747 )
DIGEST OF CASES
( ?« )
INTEREST CREATED IN IMMOVE-
ABLE PROPERTY, COMPUTA-
TION OF VALUE OF, POR RE-
GISTRATION PURPOSES-™nW
See Registration, 18. 31.
Rajapati Singh v. Ram Sakhi
■ Khar I. L. Rep. 9 All.
40.
Dakshan Singh e. Hanmanta...
I. L. Rep. 1 All. 374.
INTEREST ON MESNE PROFITS.
See Execution of Decree. SO.
Hvuoburoa v. Sharrat S. Da-
biea I. L Rep. 4 CaL
874,
Set Intereet, 13.
HllRROPERSAVD v. SHA M A PEK.1AUD
L.R.6I.A.31;I.L.Rep.
3 Cal. 654,
See Means Profit*, 1.4.
SADASIVA V. RAHAL!NGA.,.L.Rep.
3 LA. 818.
Luckhv Narain d. Kally P.Ban.
nerjee.. L L. Rap. 4 Cal.
See Act XVHI. of 1973, i 93, CI. (h),
Tota Rak v. Sher S1NGH...L L.
Sep. 1 All. 361.
INTERIM INJUNCTION — In Suit for
Specific Performance of Contract to give
in Marriage, to restrain Defendant from
giving her daughter to another than plain-
tiff, will not be granted.
See Injunction. 1.
Gunpat Narais SlNGK ,.L L.
Rep. 1 Cal. 74.
INTERLOCUTORY ORDER— Appeal to
the Privy Council from an.
See Appeal to the Privy Council. 3.
Palak Dhabi*. Radha Parsad...
I. L. Rep. 3 All. 6S.
— - No Appeal from— to Privy Council.
See Appeal to the Privy Council. 5.
Tetlev i. Jai Shankar I. L.
Rep. 1 All. 726.
INTERROGATORIES.
See Practice— CiviL 6.
GostoBehary Palv. Johur I. All
Pal...I. L. Rep. 4 CaL 886.
INTERRUPTION OF EASEMENT.
See Easement. 1.
Shaha Churn ». TarinetChi'hn.
I. L. Rep. 1 Cal. 428.
See Limitation. 48.
SlIBBRAUANIYA V. RaMACHANDRA.
I. L. Rep. 1 Mad. 38fi, 830.
INTER VENOR.
See Criminal Procedure Code, Act
X. of 1873, * 530. 4.
Kunudd Narain Bhoop L L.
Rep. 4 CaL 850.
IRREGULARITY NOT AFFECTING
THE MERITS.
See Error not affecting the Merita.
IRREGULARITIES IN CRIMINAL
PROCEEDINGS.
Waiver of-by Prisoner.
See Disqualifying Intere»t of
Judge,
Reg. o. Bholanath §en ...I. L.
Rep. 3 CaL 33.
IRREGULARITY IN EXECUTION
PROCEEDINGS.
- Material— Material Error in Notification
of Sale.
See Sale in Execution of Decree. IS.
Girdhari ». Hurdeo...L. Rep. 3
I. A. 330.
- Material— Postponement of Sale — Omis-
sion to issue Fresh Proclamation.
See Sale in Execution of Decree. 0.
Gopi Natk «. Roy Luc h mi put...
LL. Rep. 8 Cal. 543.
- Material— Release of Part of Property at-
tached before Date of Sale— Omission of
Fresh Proclamation.
See Sale in Execution of Decree. 11.
Shis Prokash r. Sardar Dayal...
L LJRep. S OaL 544.
- Material— Sale of Khalisa Mahal - -Insuffi.
cient Description or Plan of Sale.
See Sale in Execution of Decree. 8.
Showers*. SrthGobinoDass...
X. L. Rep. 1 AIL 400.
D,gltlzed by G00gle
( 749 )
DIGEST OF CASES.
( no )
IRREGULARITY IN EXECUTION
PROCEEDlNG3-Not Affecting Judg-
ment Debtor.
See Bale in Execution of Deoree. 3.
Ghazi b. Kadir Baksh I. L.
Rep. 1 All. 213.
IRREGULARITY AT SALS IN EXE-
CUTION OF DECREE.
See Sale in Execution of a Decree.
16.
The Court of Wards v. Gava
Peksad L L. Rep. 3 AIL
107.
ISSUE NOT ABSOLUTELY NECES-
SARY FOR DETERMINATION
OF CASE— Determination of.
See Res Judicata. 37.
Maun Singh * Narrayan Das...
I. L. Rep. 1 AIL 480.
ISSUES.
Kahomedan Law - Gift. 8.
Amseroonissa f. Abedoonissa...
1. L. Rep. 2 L A. 87.
Amendment of— at the Hearing.
Set Amendment of Itiuea at the
Hearing.
Boyle Chund Singh u. Maularh.
I. L. Rep. 4 Cat. 573.
Decision on one of several.
&f Letter* Patent (1865), § IS
(Calcutta).
ESRAHIH V. FuCKEERUNNIilSA Be-
gum... I. L. Rep. 4 CaL
031.
1. Practice — Framing Issues — Duty of
the Judged The plaintiff sued to recover
certain fees from the defendant for officiating
at the marriage of the defendant's son. The
plaint set forth, but only incidentally, the claim
of the plaintiff as resting on his kak or right as
head of the caste ; and alleged that, in accord-
ance with that right, he had been invited to
officiate, and had officiated at the wedding.
The Subordinate Judge raised the issue " What
are the plaintiffs rights on the occasion of a
marriage," and this issue was accepted by the
parties without objection. The Subordinate
Judge ruled that although the plaintiff was head
of the caste, he could not have any right in that
character to fees at wedding^ and dismissed
ISSUES -«.*W.
the suit. The District Judge, on appeal, found
that the right to any such fees as (he plaintiff
claimed had been extinguished by Act XIX. of
1844; and also, that the plaintiff was not invited
by the defendant to perform any services, and
that he had performed none ; and confirmed the
decision of the Subordinate Judge.
Held, by the High Court (on an application
under the Extraordinary Jurisdiction) reversing
the decrees of the lower Courts, that Act XIX.
of 1844 did not apply to the case; and that it
was competent to the Subordinate Judge to
raise the issue he did, and that the District
Judge was bound to decide it, m'*., the question,
whether, invited or uninvited, the plaintiff was
entitled by custom to a fee in respect of mar-
riages among members of the defendant's caste.
It is part of the duty of a Judge, who settles
the issues, to ascertain as clearly as he can, on
inquiry of the parties or their pleaders, the real
points in dispute between them, though those
points may have been obscured or missed by
the mode of drawing the pleadings. ApayA o.
Rama. Westropp, C.J., on a reference by West
and Pinhey, JJ...L L. Rep. 8 Bom. 210,
1879.
2. Too great Generality . of—Preth
Issues:] Where an issue, though in terms co-
vering the main question in the cause, does not
sufficiently direct the attention of the parties
to the main question of fact necessary to be
decided, and a party may have been prevented
from adducing evidence, a fresh issue may be
directed to try the principal question of fact.
OoLACAPPA CuSTTY ■. HON. D. A K BUT H NOT...
L. Rep. 1 1. A. 308 ; 14 Beng. Xi. R US,
1874.
S. C- under Folliem. 2.
J AGO ANATHA- Authority of.
See Hindu law — Authority of
Writere. S.
MORARJI *. PaRVATIBAI ... I. Xb
Rep. 1 Bom. 177.
JAGHTJLE— Primi facie Life Estate— Con.
stniction of Grant of.
See Orant of Jaghire by the Eaat
India Company.
Gv la dd as «. Collector of S u r at.
L. Rep- 61. A. 64.
D.gmzed by GoOgle
( Ml )
DIGEST OF CASES.
( "2 )
JAIK LAW— Adoption of Sister's Son valid
by.
Sic Hindu Law— Adoption. 1.
Hassan Am. Naoa Mal...T.
L. Hep. 1 Alt 380.
1. Petition of Jams— Sudras.] " In
Allahabad a Saravgi Jain has been allowed to
adopt a sister's son by the custom of his coun-
try (Hasan Alt v. Nagamal (I. L. Rep. I All.
388) ; but Jains, if classed among Hindus,
would be so no higher than Sudras." Per
Westropp, C.J., in Gopal Nakhar Safrayv.
Hanmant Ganesh Safray...I. L. Rep. 3
Bom. S78, 293.
2. Proof of Custom—Widow's Estate-
Adoption.'] In a suit to establish a Jain widow's
right of inheritance to her husband's estate,
(under the usages and customs of the Saravgi
religion)and to uphold her adoption of herdaugh.
ter's son, as well as his right to succeed her after
her death, by voiding the pretensions of the
defendant (brother of the deceased proprietor),
who claimed as next of kin under Hindu law,
and under a nuncupative will alleged to have
been made in his favour : —
Held, that although ordinary Hindu law, in the
absence of proof of special. custom, has usually
been applied to persons of the Jaina sect in
Bombay, yet the Jains possess the privilege of
being governed by their own peculiar laws and
customs, when those laws and customs are, by
sufficient evidence, capable of being ascertained
and defined, and are not open to objection on
grounds of public policy or otherwise.
Held, on the evidence, that—
(1.) A sonless widow of a Saravgi-Agarwala
takes, by the custom of the Sect, a very much
larger dominion over the estate of her husband
than is conceded by Hindu law to the widows
of orthodox Hindus— to the extent at least of
absolute interest in the self-acquired property of
her husband.
{2.) A sonless widow also enjoys the right of
adoption without the permission of her husband
or the consent of his heirs.
(3.) A daughter's son may be adopted, and
on adoption takes the place of a begotten son.
Sheo Singh Rai e. Mussumut Dakho...L.
Bop. S I. A. 87 ; I. L. Bop. 1 All.
698 ; 3 Chi Rep. 103.
S. C. under Declaratory Decree. 11,
and Practice — Privy Coun-
cil. 8.
JAIN LAW- -cant J.
8. Absence of Proof of Custom.] The
customs of the Jains, where they are relied on,
be proved by evidence, as other special
ran and usages varying the general law
should be proved, and in the absence of proof
the ordinary Hindu law' of inheritance must
prevail. Sheo Singh Rai v. Mussumut Dakho (I-
Rep. 5 I. A. 87) approved. Chotay Lall ».
Cnunnoo UU...I. Rep. 6 1. A. IS, 1878 ;
1 1.. Bop. 4 Cal. 744.
S. C. under Hindu Law — Inherit-
ance—Daughters. 4.
JALEAR— Lessee of — cannot acquire Right
of Occupancy.
See Right of Occupancy. 8.
BOLLYE SATEE V. AKRAH ALLY...
Z. L. Rep. 4 Cal. 061.
- Tidal River.
See Right of Fishery in Public
Navigable Rivera.
Prosunno Coouar v. Rak Coo-
UAR...L L. Rep. 4 Cal. SO.
1. Fishery — Occupancy Rights of.]
The right of occupancy which accrues to tenants
'ho have occupied or cultivated lands for twelve
years or upwards, does not arise in respect of
the right called jalkar or fishery. That is a
right which nay be let-out by ijaradars under
the landlord, and may be enjoyed under them
long as their ijara continues, but is liable to
be determined at the expiration of the ijara.
UG0OBUNDH0O SHAHA B. PrOKOTHONATK Roy.
Jackson and McDonnell, JJ...I. L. Rep. 4 CaL
767, 1879.
9, Easement— Act IX. of 1871, § 27,
and Sched. II., Art. 145.] A jalkar is not an
.ement within the meaningof §27of Act IX.
1871. A jalkar is the right to take the profits
a river, lake, or other water on a particular
ate, or tract of country ; and though the right
jalkar may not involve any actual property
the soil over which the water flows, it is still
interest in immoveable property within the
meaning of Art. 14*, Sched. IL, Act. IX. of
1871. Where the defendants had been (or
more than twelve years continuously under, a
claim of right, exercising the right of fishing in
a certain water adversely to the plaintiff : —
Held, that a suit by the plaintiff for a declara-
tion that he was entitled to the exclusive right
of fishing in such water, was barred by limitation
D.gmzed by G00gle
( »S» )
DIGEST OF CASES.
( 7S4 >
J ALK AR — con td .
Parvutty Nath Roy e. Mudho Paroe, Garth
C.J., and Birch, J. ..I. L. Rap, 3 Cal. 970 ; 1
CaL Bop. 502,;1878.
JAHABANDI— AiiHc Document- -Evidence
Act T. of 1872, $ 74— Af. Ki7. »/ 1812 (A«v,)
— Consent of Ryot.] The Act of a Deputy Col.
lector, in making a settlement, or even an in.
quiry, under the provisions of Reg^ VII. of 182]
(Beng,),is that of a public officer, whether it be
judicial or executive, and the record of such
is a public document. A jamabandi, therefore,
prepared by a Deputy Collector while engaged
in the settlement of land under (Beng.) Reg. VII
of 1822, is a " public document " within the
meaning of § 74 of the Evidence Act (I. of
1872).
It is not necessary to show that, at the ti
preparing such a document, a ryot affected by
its provisions was a consenting party to the term;
specified therein, as its validity is not dependenl
on such consent. Taru Patuk v. Abinash
Chunder Dott. Jackson and Tottenham, ]J:..I.
I.. Rep. 4 Cal. 79, 1878.
JEW — Second Marriage of — in Lifetime of First
Wife.
See Indian Succession Act X of
1803, i 56.
Gabriel v. Mordakai I. L
Rep. 1 Cal. 148.
JIMTTTA VAHAN A— Authority of.
Mokarji u. Parvatibai I. L.
Rep. 1 Bom. 177.
JOINDER OF CHARGES.
Set Criminal Procedure Coda, §§
452 and 453 to 454.
Reg- v. Hahmanta.,,1. L. Riip. 1
Bom. 610
See Empress ». Dononjoy...I. L, Rep.
3 Cal. 540.
And see the Case under Convictions
on Several Charge*.
JOINDER OF PASTIES.
See Abatement of Appeal— Civil.
MOKKSHVAR f. KUSHABA I. Zl.
Rep. 8 Bom. 348.
JOINDER OF PARTIES— ran«.
Drawer and Acceptor of Bill.
See Practice— Civil. 5.
Pestonjbe v. Mirza Mahomed...
I. L. Sep. 3 CaL 541.
Sale of Goods by Sample— Suit for Dama-
ges for Bulk not corresponding with
Sample— Plaintiff cannot be compelled
to add Defendant's Vendors as Parties.
See Civil Procedure Code, Act X.
of 1877, §33.1.
Mahomed Badsha if. Nicol,
Fleming & Co ..I. L. Rep.
4 Cal. 356.
Suit by one of two Co- Mortgagees, Les.
sors, for Moiety of Rent — Co-Mortgagee
added as Defendant.
See Civil Procedure Code , Act X. of
1877, § 83. 3.
ShibGofalv. Baldeo Sahai...
I. L. Rep. 2 All. 264.
JOINT aONTRACTOR8-5».r against-
Res judicata— Contract Act IX. of 1872, § 43.]
The plaintiff sued the present defendants and
ne G. on a joint promissory note, but obtained
decree against G. only, and was allowed to
withdraw the suit against the two present de-
fendants with leave to bring a fresh suit against
them for the same matter. No satisfaction of
the decree having been obtained against G., the
present suit was brought ; —
Held, that the judgment obtained in the
former suit, though unsatisfied, was a bar to the
present suit. The rule laid down in King v.
(13 M. & W. 494, 505) and Brinsmead v.
son (L. Rep. 7. C. P. 547) is not a rule of
procedure only, but of principle, oi»., that a
judgment obtained against one or more of
several joint contractors or joint wrong-doers
operates as a bar to a second suit against any
of the others. There is but one cause of action
for the injured party in the case of either a joint
ntract or joint tort ; and that cause of ection
exhausted and satisfied by a judgment being
obtained by the plaintiff against all or any of
the joint contractors or joint wrong-doers whom
he chooses to sue.
The effect of § 43 of the Contract Act is not
change a joint liability into a several one at
the option of the promisee ; it merely allows the
promisee to sue one or more of several promis-
ors in one suit, and so practically prohibits a
Digitized byGOO^Ie
( '56 )
DIGEST OF CASES.
( ?6fl >
JOINT CONTEAOTORB-whW.
defendant in such suit from objecting that his
co- con tractors ought to have been sued with
him ; it places the liability arising from a breach
of a joint contract, and the liability arising
f mm a joint tort, on the same footing, that
is to say, that each wrong-doer is liable to be
sued separately in respect of the whole lia-
bility. Hembndro Coomab Mullick e. Ra-
JENDROLALL MooNsheh. Garth, C.J-, and Mark-
by, J I. L. Sep. 3 Cat. 353 ; 1 OaL Sep.
488,1878.
JOINT DECREE — Application for Partial
Execution of.
Sec Limitation. 75.
Rah Autaro. Ajudhia Singh...
I. L. Rep. 1 All. 331.
JOINT ESTATE OF TWO OE MORE
WIDOWS— Separate Enjoyment— Sur"
vivorship.
See Hindu Law — Inheritance —
Widows. 9.
Sri Gajapathi Nilamani Patha
Maha DsviGuru». Sri Gaja-
pathi RadhamanI Path*
Maha Devi Guru...L. Eep.
4 L A. 313.
JOINT HINDU FAJOLY.
See the cases under Hindu Law-
Undivided Family.
Alienation by Member of.
See the cases under Hindu Law-
Alienation of Ancestral
Property.
Partition.
See the cases under Hindu Law-
Partition.
JOINT MUTTUWALLIS—Survivorship.
See Mahomed an Law- Wakf.
Phati Sahsb ]>. Damodak-.L L.
Eep. 3 Bom. 84.
JOINT OWNERS OF UNDIVIDED ES.
TATE— Suit by one of— for Damage!
from Sale of Whole through Default of
one of the — in Payment of Government
Revenue, will not lle>
See Damage*. 1.
Lallah Ramesshur b. Lallah
Bissen L L. Eep. 1 OaL
408.
JOINT TENANCY- -Grant of Village in
Inam jointly lo Members of Undivided
Family.
Set Hindu Law— Undivided Fami -
ly. l.
Radhabai b. Nanarav ... I. L.
Sep. S Bom. lfil.
JOINT TRIAL- of Separate Offences.
See Criminal Procedure Code, Act
X. of 1873, §452.
Reg. v. HAHHANTA...L L. Rep. 11
Bom. 810.
JUDGE— Duty of.
See infra.
— Duty of— in framing Issues.
See lames. 1.
Apayab. Rama I. L. Eep. 3
Bom. 210.
— Examination of — as Witness-
See Disqualifying Intereat of
Reg. v. Bholanath Sen L L.
Eep. 2 Cal. 33.
See Evidence. 99.
Empress u. Donnelly.. .L L.Rep.
9 Cal. 405.
— Importing Personal Knowledge of Facts.
See Judge Importing hie Personal
Knowledge of Facta.
HuRPARSHAD t, SHEO DVAL I.
L. Rep. 3 1. A. 259-988.
— Interest of — in Case sub Jtulite.
See Disqualifying Interest of
Rev;, s. Bkolakath Sen I. L.
Eep. 9 Oat 33.
— Duty of.] Officers who act as Judges, if
itrusted at the same time with administrative
duties, ought to be most scrupulous in the en.
deavour to form their opinions independently.
They ought not to refer to their superiors, whe-
ther judicial or administrative, for opinions to
enable them to form their own judgments, orfor
instructions or orders directing them as to the
course which they as Judges ought to pursue.
Thakoor Hardeo Bux o, Thakoor Jawahir
Sinoh L. Rep. 4 LA. 178-101,1677:
S. C. under Act I. of 1808, 6, and
Appeal to the Privy Council.
Digitized by G00gle
( 757 )
. DIGEST OF CASES.
Judge acting in English de-
partment OF HIGH COVET,
POWER OF— To transfer Case.
Set Criminal Procedure Code, Act
X. of 1872, ) 64.
Reg. v. Zuhikuddih ..I, L. Rep.
1 Cal. 210 ,
JUDGE IMPORTING HIS PERSONAL
KNOWLEDGE OP PACTS— " It ought i
be known, and their Lordships wish it to be di
ti nelly understood, that a Judge cannot, without
giving evidence as a witness, import into a case
his own knowledge of particular facts." Hur-
furshad v.Sheo Dyal...L. Rep. 8 I. A. 2S9.
386. 1879.
S. C. under Oudh Proclamation of
1868, para. 8.
JUDGE'S NOTES— Use of— in construing
Decree.
See Construction of Decree.
Svkar Ahmed t- Haji Ismail...
I. L. Rep. 1 Bom. 168.
*' JUDGMENT."
See Letters Patent, 1885, f IS (Cal-
cutta).
Ebrahim o. Fuckirunnissa Be-
gum.. I. L. Rep. 4 Cal. 531.
— — Suit on — Limitation.
See Limitation, 62.
Sakharam Dikshtt v. Ganksh
Sathe...L L. Sep. J
193.
— Object and Nature of.] In discussing
the evidence respecting the genuineness of an
alleged authority to adopt, their Lordships of
the Privy Council observed that the proper
object of a judgment was, to support, by the
most cogent reasons that suggest themselves,
the final conclusions at which the Judge has
conscientiously arrived. That object is defeat-
ed by the Judge elaborately recording the flue-
tuations of his mind from day to day, in reference
to the witnesses, the evidence, and the argu-
ments. It is a substantial objection to such a
judgment, that it does not dispose of the question
as It was presented by the parties, e.g., where it
finds a particular signature to be a forgery, which
both sides admit to be genuine. Sri Raghu
haohav. Sai Brojo KisHORo.„L.Rep. 8L A,
154 ; I. L. Bep. 1 Mad.
" JUDGMENT "— amid.
S, C- underHindu Law—Adoption.
11, and Suocession to Impar-
tible Zemindaiy for which
no Permanent Bunnud ia
lulled.
JUDGMENT OS1 ACQUITTAL.
See Appeal— Criminal 4,
Empress ». Judoonath Gangoo-
Lv.-X L. Rep. 2 Cal 373.
JUDGMENT OF DIVISION COURT—
Appeal from.
See Letters Patent— Allahabad,
CLIO.
Ghaisi Ram c, Musamat Nuraj
BEOAM...I.L. Rep. 1 ALL 81.
JUDGMENT CREDITOR— Representative
of— Right of, to continue Execution Pro-
ceedings—Limitation.
See Limitation. 98.
GULABDAS jr. LaKSHMAN NaRHAR.
I- L. Rep. 3 Bom. 231.
JUDGMENT DEBTOR NOT PART'S" TO
PROCEEDINGS UNDER ACT
V1TL OP 1809, S 248-Liroitation.
See Civil Procedure Code, Act VIII.
Of 1859, f 246. 3.
Ihbichi Kava u, Kakunnat
Upaki...L L. lisp. IMad.
891.
JUDGMENT EX PARTE-Against De-
fendant not appearing at Adjourned
Hearing— Appeal.
See Civil Procedure Code, Act VHL
of 1859, f 119. 1.
Zain-vl-Abdin Khan it. Ahmed
Raza Khah I. L. Rep. 3
All. 67 ; L, Rep. 5 I. A.
Appeal from.
See Appeal— Civil. 8. 9,
Lukhmidas v- Ebrahim I. L.
Rep. 2 Bom. 644.
GulabSinoh ii. Lachman Dah...
1. 1.. Rep. 1 All. 748.
See Civil Procedure Code, Act
VUXoflSBR, §119. 1.
Zain-il-Abdin Khan v. Ahmad
Raza Khan. ..I. L. Rep.
2 All. 67 ;L. Rep.
5 LA. 383.
D.gmzed by GoOgle
( »B9 >
DIGEST OP GASES.
( m }
JUDGMENT EX PASTE— court.
— Appeal from Order refusing to act aside
See Appeal-Civil. 3. 9.
LuRHHlDAS V. EBRAHIM I. Ik
Bap. 3 Bom. 644.
Gulab Singh v. Lachman Das...
I. L. Bep. 1 AIL 748.
■ In Appeal — Appeal from — by Respondent.
See Appeal-CiviL 6. 37.
Kali Kishore Rovd. Dhununjoy
Roy... I. L. Bap. 8 Oal. 288.
Ex parte MadALATHA I. Xi.
Bep. 3 Had. 76.
— Effect of— Admissibility in Evidence.
See Judgment ex parte. 3.
Refusal to receive Written Statement as
not in Time, but Issues framed in Pre.
sence of, and Witnesses cross-examined
by, Defendant's Pleader.
See Judgment ex parte. 8.
Rehearing granted after Expiration of
Time limited for Application.
See Civil Procedure Code, Act VIII,
of 1859, f 119.3.
RuNGt-AL MtSSER V. ToKHUN MlS.
ser...I. L. Bep. 3 CalI14.
Second Appeal from.
See Appeal-- Civil. 37.
Exparte Madalatha...!. L.Rep.
3 Had. 70.
.1. Act XI. of 1865, § 2t— Non-Appear.
anct of Defendant's Pleader at Hearing.'] There
is nothing in the first part of §31, Act XI. of 1865,
showing that the Legislature intended to
its provisions to the first occasion on which the
defendant might have put in an appear
Where, therefore, a case is adjourned fror
date fixed in the summons to any later date, and
on such later date the defendant is prevented by
sufficient cause from appearing, he may make;
application under that section. In the matter
DavAl Mistrf.ro. Kufoorchand. Ainsliew
Maclean, J] I. L. Bep. 4 Cftl. 318 ; 3 Cal.
Bep. 483, 1878.
8. Effect of— Admissibility in Evidence.-]
A decree obtained ex parte is, in the absence of
Fraud or irregularity, for purposes of evidence, as
good as any other decree, and as binding for all
purposes as a decree in a contested suit.
JUDGMENT EX PABTE-tJsW.
Such a decree is admissible in evidence in a
subsequent suit between the same parties, though
the plaintiff may not have taken out execution
of it, and though the period provided for execut-
ig it may have expired. Birckvnder Ma-
ickya v. Hurrish Chukder Dass. Garth, C.J.,
id Birch,] X. L.Rep, 3 Cal 883; 1 Cal.
Bep. 085, 1878.
S. C. under Bee Judicata. 13.
8. ■ Act VUI.ofi%$% S 119— Refusal to
receive Written Statement as net in time — Issues
framed in presence of, and Witnesses cross-
examined by, Defendant's Pleader ] The Court
st instance refused to receive the defendant's
en statement, because it was tendered after
the day on which the Court had ordered it to be
filed, and the delay was not satisfactorily ac-
counted for. The Court, however, framed the
issues in the presence of the defendant's vakil,
who was also allowed to cross-examine the plain-
tiff's witnesses. The Court decreed for the
plaintiff. On appeal the District Judge held that
the decree of the Court of first instance was ex
parte under § 119 of Act VIII. of 18.59, and that
no appeal lay.
Hdd on special appeal, that the decree of the
first Court was not under the circumstances ex
Part*. Raghapa Hannapa v. Parapa Shivapa.
Wtslropp, C.J., and Kemball, J L L. Bep. 1
Bom. 317, 1876.
JUDGMENT AGAINST A PERSON
TAKING POSSESSION OF THE
ESTATE OF A DECEASES
HINDU.
See Person taking Possession of
the Estate of a Deceased
Prosunno Chukder Bhutta-
CHARJEE t>. KrISTO ChVTUMNO
Pal... I. L. Bep. 4 Cal, 343.
JUDGMENT INTEB PASTES.
See the cases under Baa Judicata.
"JUDICIAL PROCEEDINGS."
See Appeal— Civil. 9.
Runjit Singh u. MbhurbanKoer.
I. L. Bep. 3 Cal. 883.
See Civil Procedure Code, Act X. of
1877, i 3.
Dalpatbai t, Amarsahg.,.1. L.
Bep. 2 Bom, 553.
Diarized by Google
DIGEST OF CASES.
(
)
"JUDICIAL PROCEEDINGS"- amU.
Admitting Accused to Bail under § 390 of
Act X. of 1S72.
Sec Criminal Procedure Code, Act
X. of 1872, % 297. 3.
Reg- v. Gholau Ismail I. I*.
Rap. 1 All. 1.
— — Inquiry by Magistrate under g 135 0! Act
X. of 1872 is not a.
Sec Report of Magistrate.
Trovlokanath Biswas v. Ram
Churn Biswas X. L,
Rep. 8 Cal 743,
— Magistrate arresting Persons acquitted,
pending Appeal.
Sre Criminal Procedure Code, Act
3C. of 1873, * 287. 2.
Reg. v. Gbolam Ismail. ..I. It.
Rep. 1 All. 1.
Magistrate's Order under ( 518 of Criminal
Procedure Code, Act X- of 1871, is not a.
Sec Stat. 84 A 26 Vict., CI. 104, §
16.6.
Chundkr Nath Sen. ..I. L. Rep.
A CaL 293.
AetX. of 1S72, j 416.] It may perhaps
be doubted whether the mere issue of a pro-
clamation under f 416 of the Criminal Procedure .
Code (Act X. of 1872) is a judicial proceeding
within the meaning of § 197 of thai Act. At
the same time "judicial proceeding" 1
any proceeding in the course of which evidence
is or maybe taken, or in which any judgment,
sentence, or final order is passed on recorded
evidence. The action of the Magistrate in
issuing the proclamation is to require
person who may have a claim to such pro-
perty as may be sent in by the police tinder §41 J
to appear before him and establish his claim
within six months. This is possibly a stage -
of a judicial proceeding, for at the expiration of
the term provided by the proclamation it i
probable that a claimant might appear, an
evidence would be recorded. Per Spankie, J., i
Empress v. Nilambar Babu ..L L. Rep. 2
All. 376, 278, 1370.
S. C. under Order for Disposition of
Property arupected to be
■tolen and under Criminal
Procedure Code, Act X. of
1872, § 387. 10.
JUDICIAL SEPARATION — Desertion —
Adultery — Act IV. of 1869, § 3, C4. 9,
S§ 9 and 37-
Set Divorce. 8.
Fowle ». -Fowls. ..L L. Rep. 4
CaL 260.
JURIDICAL AS OPPOSED TO PHY-
SICAL POSSESSION.
See Limitation. 35.
Madhub Ch under a. Shah
Chahd...I. L. Rep. 8 Cal.
243.
JURISDICTION— Act of State.
.?<■# Act of State. 1.
Sirdar Bhagwait. Siitch v. Se-
cretary of State for Ih-
m*. L. Rep. 2 LA. 38.
Set Right, to Sue. 7.
NowiMi Chlnder Dew Secre-
tajui of State for India ,.L
IV Rep. 1 CaL 11.
See Bengal Act III. of 1864 , f 83.
Manbssur Dass- v. Collector,.
&£., of CHAPRA....L L. Rep*
1 Cal. 409.
- Application to file Award.
See Suit for Land. 8.
K-ELlie 0. . Fraser.,.1. L, Rep. 2
CaL 44 0.
- Arrears, of Grain Rent — Suit for Money
See Act XVIH. Of 1873, § 06. 1.
Taj lttidin Khan t. Ram Parskad
Bhacai ,.L L. Rep. I AIL
217.
- Of Bench of Magistrate*
Sec Criminal Procedure- Code, Act
X. of 1672, ( 530.6.
SUFFERUDDIN V. [URAHIU..X L.
Rep. a Cal. 764.
- Bill of. Exchange drawn in Foreign Coun-
try by British Subject not Domiciled or
Resident therein, for Debt due to Cre-
ditor in Foreign Country — Jurisdiction
of Foreign Court,
St, Jurisdiction. 7.
D,gltlzed by G00gle
( 763 )
DIGEST OF CASES.
JURISDICTION-™*,;.*.
■ — - Of the British Consul at Zanzibar.
See Zanzibar.
Waoji Korjiv. Tharia Topan...
L L. Bop. 3 Bom. S8.
Of Civil Court— to entertain Suit cogniz-
able by Small Cause Court, where Small
Cause Court exists.
See Small Cause Court— MofussiL
7.
Dvebukee Nundun d- Mudhoo
MUTTT...X It. Bep. I Cal
128.
— Of Civil and Revenue Courts-
See Vendor and Purchaser. 2.
Hika Lal e. Ganesh Prasad. ..I.
L. Bep. 2 All. 410.
- 0£ Civil and Revenue Courts— Arrears of
Rent payable in Grain— Suit for Money
Equivalent.
See Act XVHX of 1878, § 98. 1.
Tajuddin Khan r. Ram Parshad
Bhagat.,,1. L. Hup. 1 All.
317.
- Of Civil and Revenue Courts— Suit by Co-
Sharer in Undivided Mahal against Lam.
bardar for Share of Profits.
See Act XVm. of 1873, § 83. 2.
Bhikhan Khan o. Ratan Kuar.
I. L. Bep. 1 All. 619.
— Of Civil and Revenue Courts— Lease by
Occupancy Tenant— Ejectment of Lessee
by Landholder in Execution of Decree
against Lessor — Reversal of Decree— Suit
by Lessee for Possession and Mesne
Profits.
See Act XVIIL of 1878, § 80. 1.
Kalian Dass v. Tika Ram -L It.
Bep. 2 AU. 137.
— Of Civil and Revenue Courts— Lease of
Zemindary Rights— Wrongful Disposses-
sion of Lessee by Lessor — Suit tor Com-
pensation.
See Act ZVHX of 1878, § 86, CI
m. 1.
Abdul Aziz b. Wali Khan... I.
I,. Bep. 1 AU. 338.
JTJBISDICTION-wnM.
- Of Civil and Revenue Courts— Partition
effected by Revenue Authorities.
See Partition by Revenue Autho-
rities. 1.
SharatChiinderv. Hurgobindo.
I. It. Bep. 4 Cal. 010.
- Of Civil and Revenue Courts— Record of
Rights— Civil Courts have jurisdiction to
determine Question of Right between
Parties, notwithstanding Entry in Record
of Rights.
See Jurisdiction fj,
- Of Civil and Revenue Courts — Suit by
Landlord against his Dewan containing
Items of Claim cognizable by Civil Court.
See Jurisdiction. 2.
- Of Civil and Revenue Courts— Suit for
Declaration of Proprietary Right to — and
Possession of Lands— Denial of Plaintiff's
Right.
See Jurisdiction. 8.
ecuting a Decree of another
— Of Court e:
Sw Execution of Decree. 12.
Shib Narain v. Bepin Behaev.
I. It. Bep. 3 Cal. 613.
— Declaratory Decrees — Jurisdiction of Civil
Courts in respect of Power to grant
Declaratory Decree.
See Declaratory Decree. 6.
Rah N eedhee v. Rajah Raghoo
Narain...!. L. Bep. 1 CaL
466.
— Dissolution of Partnership, Suit for.
See Jurisdiction. 8.
— Of District Court of Akyab.
See Jurisdiction. 9.
— Dwelling — Residence.
See Jurisdiction. 3,
— Ejectment — Sir Land.
See Act XVETJ. of 1873, f 7. 1.
Bakhat Rah *. Wazir Au...L,
I.. Bsp. 1 AU. 448.
D.gmzed by GoOgle
UlGEST OF CASES.
( 7CG )
JURISDICTION— eontd.
Exceeding, or Refusing
Grounds for Exercise of Powers of Su-
perintendence of High Court.
See Stat. 24 & SS Vict., C. 104, J 16.
1.3.4.
Mattara Fa ks i i ad ..Ibid. 898.
— Execution issued without — Refund of
Amount levied.
Sic Execution of Decree. 6.
Sec Estoppel. 2.
Govind v. Sakha ram... I. L. Sep.
8 Bom. 4a.
— Foreclosure— Mortgage of Lands partly in
Oudh and partly in N. W. P.
See Mortgage. 24.
Sl/KJAN SlNGH V. JA0ANNATH
Singh... I. It. Eep. 2 AIL
813.
— Foreign Court in respect of Bill of Ex-
change drawn in Foreign Territory by
British Subject neither Domiciled nor
Resident therein.
See Jurisdiction. 7.
— Foreign j udgrnent— Suit on.
See Jurisdiction. 7.
— Of High Court.
See the index heading Jurisdiction of
High Court.
— High Seas — Injury to Fishing Stakes,
See Jurisdiction. 10.
Baban v. Naou...I. L. Bep. 2
Bom. 19.
— Mortgage of Lands in different Districts-
Redemption of Land within Jurisdiction
of Court in which Redemption Suit
filed.
See Jurisdiction. 4.
- Municipal Tax— Suit to :
from Plaintiff.
Set Jurisdiction. 1,
JtrBISDIOTION-ronirf.
—• Municipality— Suit against.
See Jurisdiction. 18.
See Suit against a Municipality. 1.
The Ahmbdabad Municipality
v. Mahomed Jahal.,,1. Ik
Rep. 8 Bom. 148.
- Objection to —Fiat taken on Appeal.
See Appeal— CiviL 8.
Bai Makhor v- Bulakhi.. I. L.
Bep. 1 Bom. 888.
- Offence committed in Foreign Territory.
See Criminal Procedure Code, Act
X. of 187S, § 67. 1. a.
Reg. v. A bi vig a du... I. L. Bep.
1 Mad. 171.
Reg. v. Lakhva.,.1, L. Bep. 1
Bom. 60.
See Criminal Procedure Code, Act
X of 1872, f 187.
Reg. o. Locha.,.1. L. Kep. 1
Bom. 840.
See Offence committed in Foreign
Territory.
Empress v. Dossaji...L L. Bep,
8 Bom. 334.
- Offence committed in Native State by
Native Indian Subject of Her Majesty.
See Offence committed at Cyprus.
Empress v. Saruukh Singh. ..L
J-. Rep. 2 All. 318.
- Partition by Revenue Authorities.
See Partition by the Revenue Au-
thorities. 1.
S ha rat Chunder «. Hargovindo.
L L. Bep. 4 CaL CIO.
- Possession in British Territory of Adulte-
rated Cotton — Adulteration in Foreign
Territory. .
See Bombay Cotton Frauds Act
VII. of 1878, 5$ 8 and 14.
Impx. i. Khihchand NaraVan...
I. L. Bep. 3 Bom. 884.
- Re -arrangement of — within British Terri-
See Cession of Territory, 1.
Dahodar h. Gahesh...10 Bom.
B. C. Bep. 37; I.LRap,
1 Bom. 387; L. Bep. 8 I.
A. 109; I* Bep. 1 App. Ca.
D.gmzed by GoOgle
{ 767 )
DIGEST OF CASES.
{ 7G8 )
JURISDICTION -«*/<*.
Refusal by Lower Court
Ground [or Exercis* of Power of Superin-
tendence by High Court.
See Stat. 24 and 25 Vict., 0. 104,
i 15. 1. 3. 4.
LUKHYKANT BoSB ..L L. Rep. 1
Cat. 180.
Tej Ram«. Hahsukh.I. L. Rep.
1 All. 101.
MATKOR pAKSHAD...Ibld. 206.
— Refusal of Magistrate to inquire on Ground
of Want of— Order of Division Bench to
Magistrate to inquire— Committal — Sen-
tence— Power of High Court on Reference
for Confirmation to consider the — of Ses-
See Criminal Procedure Code, Act
X. of 1872, §287. 7.
Empress v. Sarmukh Singh. ..I.
L. Sep. 2 AIL 218.
— Suit for Declaration of Zemindari Right to
Cesses.
See Declaratory Decree. 18.
Akbar Khan v. Sheoratan...!.
L. Rep. 1 AIL 873.
■ Suit for Dissolution of Partnership.
See Juried iction. 8.
— — Suit by Pattidar against Co-Sharers for
Contribution in respect of Revenue paid
for Co -Sharers.
See Act XIX. of 1878, § 241. 1.
Rak Dials. Gulab Sino ..I. L.
Rep. I AIL 23.
— Summary.
See Criminal Procedure Code, Act
X. of 1872, ( 80.
* Pursoorah BOKOOAH...I. L.Bep.
2 CaL 117.
See Summary Procedure. 1.
Empress o. Abdool Kakim L L.
Rep. 4 Cal. 18.
■ Territorial — ceases on Valid Cession.
Set Ceation of Territory. 1.
Damodar v- Ganesh.,.10 Bom,
H. C. Rep. 37; I. It, Rep.
1 Bom. 887 ; L. Rop. 3 L
A. 102 ; L. Rep. 1 App.
Ca. 833.
JURISDICTI0H-™«W.
Territorial— Extent of— over High Seas
adjacent to Coast.
See Jurisdiction. 10.
Transfer of.
See Ceeaion of Territory. 1.
Damodar v. Ganrsh ..10 Bom.
H.C.Rep. 37; I.L.Rep.
1 Bom. 867; L. Rep. 3 I.
A. 102; L. Rep. 1 App.
Oa. 332.
Valuation of Suit for Purposes of.
^Jurisdiction. IS. 18. £0.
Whole Cause of Action— Place of Contract
or of its Performance.
See Jurisdiction. 14.
Muhammad Abdul Kadar v. E.
I. Railway Company. ..I. L.
Rep. 1 Mad. 37S.
1, Municipal Tax — Suit to recover — Ma-
drasAd III. 11/1871, §| 61, 85.] A suit was
brought in the Court of the District Munsif of
Gantur, to recover the amount of the profession
tax, which had been levied by the Municipal
Commissioners of Gantur, for 1876, under Ma-
dras Act III. of 1871, from the plaintiff, under
the supposition that he carried on business as an
agent, while in fact he carried on no such busi-
ness.— Held, that the Civil Courts bad no juris-
diction to adjudicate on the matter in dispute.
The procedure prescribed by j 61 of Madras Act
HI. of 1871 for the imposition of the tax having
been conformed to by the Commissioners, the
tax had a legal existence, and no suit would lie
to contest its incidence. Kamayya v. Leman.
Innn and Muttusami Ayyar, jj X L.Bep,
2 Mad. 37, 1878.
2- Civil and Revenue Court* — Act X.
"/ 1859, IS 23, a*0 In districts where Act X.
of 1859 is still in torce, the jurisdiction of the
Civil Courts can only be ousted in cases where
the subject of dispute and the parties are exclu-
sively such as are annexed to the jurisdiction of
the Revenue Courts under that Act. Where,
therefore, a suit was brought by a landlord
against his dewan in a Civil Court which con-
tained items of claim cognizable by the Civil
Courts; it teas held, that the suit was properly
brought in such Court. Kumood Narain
Bhooh. Purna Chunder Roy. Jackson and
Tottenham,]]...!. L.Bep, 4 Cal. 547 ; 3 Cal.
Rep. 288, 1878.
D.gmzed by G00gle
< 739 )
DIGEST OF CASES.
( 770 )
JUMBDICTION-coxU
S. Duelling — Residence—Act VIII. of
'859. 5 S— Act XXIII, 0/1861, % 4.] The words
dwelling or residence are synonymous with do-
micile or home, and mean that place where a
person has his fixed permanent home, to which,
whenever he is absent, he has the intention of
returning. Where, therefore, A., one of the de-
fendants, was, at the time of the institution of a
suit, a sowar in the Scinde Horse, and, with his
regiment, outside the jurisdiction of the Court
in which the suit was instituted, but had his
family residence, in which his wife, the other
defendant, was living, within the jurisdiction of
the Court :—
Held, that A'% family residence within the
jurisdiction of the Court, the fixed and perma-
nent home of his wife and family, and to which
he had always the intention of returning, con-
stituted his dwelling place within the meaning
of §5 of Act VIII. of 1859, and § 4 of Act
XXIII. of 1861, and that the sanction of the
High Court under the latter section was unne.
cessary for the continuance of the suit. Fatima
BEOAMe-SAKiNABEQAM. Spank it and Oldfield,
JJ ILRep. 1A11 (51, 1878.
4. Act VIII. of 1859, 55 5, 13— Roe.
VII. of 1825— Mortgage of Lands in different
Districts— Account in Redemption Suit— Redemp-
tion of Lands ■aithin Jurisdiction."] The plain,
tiffs, who were mortgagors of certain property
situated partly in the district of Mirzapur, and
partly in the family domains of the Maharaja
of Benares, instituted a suit to redeem the same,
in the Court of the Subordinate Judge of Mir-
zapur ; but authority to try the suit in that Court
in respect of the lands in the family domain
having been applied for under Act VIII. of 1859,
i 13, and refused by the High Court, those
plaintiffs who were only interested in the r
gage (o the extent of the property in the family
domains withdrew, and the other plaintiffs pro-
ceeded with their claim to redeem the property
in M irzapur, and obtained a decree for posses-
sion thereof on the basis of the satisfaction of
the entire debt charged on the two properties.
The lower Appellate Court dismissed the suit,
on the ground that the trial would raise ques-
tions affecting property in the family domains
in respect of which he had no jurisdiction,
instancing in this view the question whether the
mortgagees were in possession of certain lands in
the family domains without which the accounts
could not be made up: —
JURISDICTION— contd.
Held, that the plaintiffs were at liberty to fore-
go, as they had done, suing for possession of the
property situated in the family domains, and the
suit as now brought was only for immoveable
property in the district of Mirzapur, — it did not
seek to recover land in the domains, nor was
there any claim raised of a nature exclusively
cognizable by Courts established under Reg. VII.
of 1829. The jurisdiction conferred on the Mir-
sapur Court by } 5 of Act VIII. of 1859 could
not be ousted, because it might be necessary in-
cidentally to decide, forthe purposes of the suit,
questions relating to mortgaged property held by
the defendants in the family domains, (he extent
of it in their possession, and its profits, in order
to make up the accounts of the entire mortgage,
so as to ascertain if the entire mortgage debt had
been satisfied, and if the plaintiff had a right to
recover the property in Mirzapur. Girdhaki
v. SHBOKAJ. Stuart, C.J., and Oldfield , J . . .1. L.
Rep. 1 All. 431, 1877.
5. — - Record-of-Rights—Act Jf/*. 0/1873,
§5 9<i 94 ""d Z4><] Section Z41 of Act XIX. of
1873 enacts that no Civil Court shall exercise
jurisdiction " in the matter " of the "formation
of the reco rd -of- rights ;" but the matter of the
formation of a record is not the same thing as
the question of the rights which its entries record.
The Civil Court may not alter or amend the
record, or give directions in respect of it, because
the formation of the record and correction of
errors in it has been made, by f $ 62 and 94 of
Act XIX- of 1873, a matter peculiarly within the
province of the Revenue Court. That was the
object with which the above-cited part of 5 241
was enacted, but it was not intended to debar
Civil Courts from entertaining and deciding ques-
tions of right between parties merely because
those questions may have been made the subject
of entries in the record, and because the decision
of the Civil Court may show that they are wrong
and need correction. Therefore, a claim in a
Civil Court for a declaration of the right to make
certain collections of rents and to defray village
expenses, though such right has been made tba
subject of an entry in the record of- rights ad-
verse to the person claiming such right, was
held to be maintainable. Sundak e. Khuman
Singh. Spantit and Oldfield, Jj I. L. Hep.
1 All SIS, 1878.
6. Suit for Dissolution of Partnrrship—
Account— Act IX. 0/1873, § 26$— Act VIII. of
1859, 5 S-] I" a suit for dissolution of part.
Digitized byGOO^Ie
DIGEST OF CASES.
( 772 )
JURISDICTION— contd.
nership between the plaintiff and the first de-
fendant, the plaint alleged that the plaintiff and
the first defendant entered into partnership in
1864 to work a jungle in the North Arcot dii.
trict, which had been leased to the plaintiff for
three years. That the fourth defendant was
subsequently admitted a partner . and that the
contract was carred on under the style of R. T-
& Co. That in March 1867 the fourth defend-
ant took up a contract in Madras, and another
partnership was established, of which the plain.
tiff and first defendant were members ; that the
funds of the first firm were incorporated with
those of the second, and that this firm under-
took several contracts in Madras and Chingle-
put. That this partnership came to a close in
1870, and that the cause of action was the re-
fusal of the first defendant to account, and
accrued in the- North Arcot District, where all
the defendants permanently resided. The Dis-
trict judge dismissed the suit, on the ground
that under § 265 of the Contract Act (IX. of
1871) he had no jurisdiction to entertain the
Held, that the District Court of the North
Arcot district had jurisdiction to entertain the
suit, as the defendants were all resident within
that district, The circumstance that contracts
for work were made and work was done else-
where did not affect this ground of jurisdiction.
The 265th Section of Act IX. of 1872
» partner
t to the Court within whose
jurisdiction the place or principal place of
business of the firm is situated for the purpose
of winding up the business ; but this permission,
which is permissive, does not prohibit a suit
elsewhere if a sufficient ground of jurisdiction
exists. Rahasahi «. Theruvbnqadasami.
Morgan C.J., and hints, J...X L.Rep. 1 Mail.
310, 1877.
7. Foreign Judgment, Suit on.'] A.,
a Hindu British subject, neither domiciled,
resident, nor possessing property in the foreign
State of Puddacottah, casually resorted thither,
and there drew a bill for a sum found due to
his creditor B., resident in that State. B. sued
A. on this bill in the Civil Court of Pudda-
cottah, and obtained a decree. B. then sued A.
in the Court of the Subordinate Judge of Ma-
dura for enforcement of this decree. A. pleaded
that the Puddacottah Court had no jurisdiction
to pass the decree sued on, and that he had
bad no notice of the suit. It was found, on
JURISDICTION— contd.
egular appeal, that A. had bad notice, and
decided thatthe Civil Court of Puddacottah had
jurisdiction:—
Held, on special appeal, that the Civil Court
of Puddacottah had no jurisdiction to try the
suit. The mere making of a contract within,
the jurisdiction of a foreign Court does not ne.
cessarily render that Court competent to adju-
dicate on all the obligatory relations wbich flow
directly or indirectly from it Mathappa
ChETti v. Cheli.appa Chetti. Morgan, C.J.,
and Holiday,} L L. U«p, 1 Hid, 190,
1876.
8. Of Civil and Revenue Courts—Act
XVIII. of 1873. §§ 93. «■] The plaintiffs
claimed a declaration of their proprietary right
in respect of certain lands and possession of the
lands, alleging that the defendants were their
tenants, and liable to pay rent for lands. The
defendants, while admitting the proprietary
right of the plaintiffs, alleged that they paid the
revenue assessed on the lands, that thsy paid
no rent, and that the plaintiffs were not entitled
to rent, and they styled themselves tenants at
fixed rates: —
Held, that, as the defendants substantially
denied the proprietary title of the plaintiffs, and
set up a title of their own, the claim of the plain-
tiffs for a declaration of their proprietary right,
and of their right to demand rent, was a matter
which the Civil Courts must decide, leaving the
plaintiffs to sue in the Revenue Court to eject
the defendants, and to recover rent, if the posses-
sion of the defendants as tenants were esta-
blished. Kakahiaj. RamKishen. Spini i> and
Oldfield,]] I. 1. Rep. 3 All. 438, 1879-
0. Of the District Court of Akyab —
Act X. of 1877, Chap, XX.— Insolvency— Bur-
mak Courts Act XVII. of 1875, %\ 31, 66.]
The Deputy Commissioner of Akyab, sitting
as a District Judge, has power to entertain
applications under Chapter XX. of Act X. of
1877.
Section 6 (iTj of that Act imposes no obstacle
in the way of the Deputy Commissioner dealing
with such applications, nor does the exercise of
such power in any way " affect the jurisdiction
of the Recorder of Rangoon sitting as an
Insolvent Court in Akyab" within the meaning
of that section. In re AhtxioL Haued. MarJtby
a.nd Prtmep, JJ...I. L. Rep. 4 Cal. 04; 3
Cal. Rep. 485, 1878.
D,gltlzed by G00gle
DIGEST 0I-' CASES.
JURISDICTION— contd.
Fishery— Right of Fishing in the Sea— Act
VIII. of 1859, ( 5.] The District Courl
jurisdiction, when (he defendants reside within
its local jurisdiction, to entertain a suit for d:
mages for, and to restrain by injunction, an a
leged disturbance of the plaintiff's right to fish
and use fishing stakes and nets fined in the sea
below low-water mark within three miles of it
Baban Mayachai,. Naou Shrimacha. West-
repp, C.J., and N. Harridas,] I. L. Bap. 2
Bom. 19, 1976.
11. Appeal— Sonthal Pergannas—Aci
XXXVIf. „/i8S5, §§ 2, A-Act XVI. of 1874-
AttXV. 0/1874.] The High Court of Calcutta
has no jurisdiction to entertain appeals in Civi
suits tried in the Sonthal Pergannas. Surdha
ree Loll b. Man-sour Ally Khan. Jackson
and White, JJ... I. L. Rep. S Oal. 298, 1877.
13. Cause, of Action-Goods obtained
by Offence or Fraud— Contract Act IX. of 1S72,
* 17S — Bailment — Pawnor and Pawnee.'] G.
went to the plaintiff's place of business in Cal-
cutta, and representing to him that he wanted
some jewellery on inspection, and would purchase
it if he did not return within ten days, obtained
from the plaintiff a quantity of jewellery, depo-
siting as security Rs. 2,000 with the plaintiff.
G-, having thus obtained the jewellery, took it to
K., at his residence, which was outside the local
limits of the jurisdiction of the Court, and repre-
senting to AT., that the jewels were his own,
pledged them with K. for Rs. 6,000. In a suit
brought against G. and K. to recover the jewel-
lery, or its value, G. did not appear, and K.
alone defended the suit ! —
Held, that, leave to sue having been obtained,
the High Court had jurisdiction tp entertain the
suit. Having reference to f 178 of the Contract
Act IX. of 1872, it was an essential element in
the plaintiff's case, that the jewellery had been
obtained from him by means of an offence ot
fraud in Calcutta. Part of the plaintiff's cause
of action, therefore, arose in Calcutta. Held
also, that the plaintiff was entitled to recover
the jewellery from A"., under ( 1 78 of the Con.
tract Act IX. of 1S72, G. having obtained it from
the plaintiff by an offence or fraud within the
meaning of that section. Kartck Churn Settv
v. GopalkKISTO PaULIT. Macpherson, J. ..I, L.
Rep. 3 Cal. 264, 1877.
13. Suit against Collector of Sea Cus-
toms at Madras — Jurisdiction of High Court at
JURISDICTION— contd.
Madras, and Civil Court at Chingleput — Madras
Reg. IX. 0/I803, \SS— Act W.o/1844— Act VI.
of 1S63- Letters Patent— Construction of Acts in
Pari Materia. ] Madras Reg. IX.of 1803 provided
by f 55 that Custom House officers should be
amenable to the Civil Court at Chingleput for
acts done in their official capacity " contrary to or
not warranted by this Regulation." This Regu.
lation was repealed by Act VI. of 1S44, §§ 55
to 70 being left standing; but nothing remained
as to which the words " contrary to or not
warranted by this Regulation" could be opera-
tive. Act VI. of 1S44 was repealed by Act VI.
of 1863, and, the revival of provisions of the law
previously repealed by the enactments which
that Act repealed being expressly provided for,
what remained of Reg. IX. of 1803 was left un-
affected by Act. VI- of 1863. That Act contains
no reference to Reg. IX. of 1803, but as it is the
general Customs law, and therefore part of the
same system of laws, it may be regarded as ill
pari materia with the old Regulation, and con-
strued with it. The Court of Chingleput,
therefore, still has jurisdiction in respect of
suits brought against Custom House officers for
acts done by Ihem ultra vires in their official
capacity.
But that Regulation never had, and could not
have, the effect of excluding the jurisdiction of
the late Supreme Court, and the provision in the
old Charter excmpiing matters concerning the
revenue from the jurisdiction of the Supreme
Court being no longer in force, the existence of
jurisdiction over such cases in the Court of
Chingleput is quite consistent with there being
a concurrent jurisdiction in the High Court.
Though the clause 23 of the Charter of the late
Supreme Court, which must be read as if it had
followed the Stat. 39 and 40 Geo. III., C. 79,
and limited the exemption from the jurisdiction
of the High Court to matters concerning the
evenue, or acts done or ordered in the collec-
on thereof, is not expressly repealed, yet the
Id statute and charter, and the new statute 24
and 25 Vict., C. 104, authorizing the erection of
High Courts, and the Letters Patent published
in pursuance thereof, are legislative provisions
in pari nialerUi ,- and the true rule of construc-
tion is to read them as one statute, and only to
regard such parts of the old statute and chatter
as repealed by the new as cannot consistently
stand with the new. And though mere general
words, such as those in CI. 12 ot the new
DigitlzSdbvGoogle ■
( 773 )
DIGEST OF CASES.
( we >
JURISDICTION— nmM.
Letters Patent, standing alone, would be sub-
ject to the control of a special exemption, such
as that contained in the language of the old
charter, yet, having regard to the provisioi
{ 9, Stat. 24 and 25 Vict., C 104, and CI. 13 of
the Letters Patent, the assumption of the conti-
nued operation of the exceptive provisions of
the old charter as regards matters connected
with the revenue, draws with it such a train of
inconsistencies, that it must be inferred that
those provisions have ceased to be operative,
and the High Court at Madras has jurisdiction
Stat. S3, Geo. III., C. 155, ,( 98, 99 and 100,
however, did not touch the exemptions as to re-
venue jurisdiction, which continued in force
until the present charter became operative.
Held by Kernan, J.— That the exception of
matters relating to revenue, Sic., from the juris-
diction of the Supreme Court, was the result of
a state of circumstances and of reasons which had
ceased to exist in 1858 on the passing of Stat.
11 and 22 Vict., C. 106, transferring the Go-
vernment of India to the Crown The continu-
ance of such exception became then unnecessary
and useless, and therefore cannot be imported
into the Stat. 24 and 25 Vict., C. 104, and the
Letters Patent of 1865, by implication or con.
struction. Such exception is also inconsistent
with the provisions of Stat. 24 and 25 Viet., C.
I04, and the charter granted under it. The ex-
ception, too, was repealed, save, perhaps, as
to land revenue by the Stat. 53, Geo. III., C.
ISS.*(99, 100.
Held by Morgan, C.J.— The Collector of Sea
Customs having been, prior to the establish-
ment of the High Court, excepted from the
jurisdiction of the Supreme Court by the com-
bined effect of the charter of that Court and
Reg. IX. of 1803, and made subject by a spe.
cial law to another jurisdiction, the Stat. 24 and
25 Vict., C. 104, j 9, provides that the High
Court to be established in each Presidency
shall have and exercise all jurisdiction vested in
the abolished Courts of each Presidency, save as
by the Letters Patent may be otherwise directed.
Unless, therefore, by the Letters Patent, juris-
diction over officers of the Custom House for
acts done by them in matters concerning the
revenue has been created, it does not exist.
The establishment of the new Courts and the
definition of their jurisdiction is the object both
of the Stat. 24 and 2$ Vict., C, 104, and the
JTJHIBDICTION-(OTi(rf.
Letters Patent, and the sections of the Letters
Patent (Madras) (§§ 18 to 30), which ordain
what law shall be administered by the High
Court in civil cases, do in effect preserve the
old laws and tribunals respectively for the cases
which would previously have been governed by
them. A suit, therefore, against the Collector .
of Sea Customs for an act done in his official
capacity, and in execution of his office in a
matter concerning the revenue, though not in
conformity to law, is not cognizable by the High
Court of Madras. Collector of Sea Cus-
Toms, Madras, v. Punniar Chithambarak...
X. L. Rep. 1 Mad.. 89, 1876.
S. C. under Act XVIII. of 1860. 2,
and Be* Judicata. 31.
14. letters Patent {Madras), CI. 12—
Wkole Cause of Action— Contract — Breach.]
The plaintiffs, at Cawnpore, contracted with the
defendants, the East Indian Railway Company,
for the carriage and delivery of certain goods at
Madras. The defendant's Railway Company
does not run into the jurisdiction of the High
Court at Madras. The Railway Company made
default in delivery of the goods at Madras ; and
the plaintiffs, without having obtained leave to
under CI. 12 of the Letters Patent, sued the
defendants in the High Court of Madras for
damages for the breach of contract : —
Held, following Gop% Krishna Gossami 1.
Niltomut Banncjre (13 Beng. L. Rep. 46O
ind Vaughan v. Wetdon (L. Rep. 10 C. P. 47),
that the breach of contract having taken place
: Madras, the cause of action had wholly arisen
ithin the jurisdiction of the High Court. The
luse of action wholly arises either in the place
of the making of the contract, or at the place of
Per Kernan, J.— Clause 1 2of the Letters Patent
applies to cases where the cause of action arises
partly out of the jurisdiction, eg., if the contract
of the company in this case had been to deliver
portion of the goods at Areonum, outside the
jurisdiction, and a portion in Madras, and if the
action had been brought alleging as a breach
non-delivery at both places.
Per Kindersley, J. — The words " wholly or in
part" in CI. 13 relate to cases of several causes
of action contained in the same suit, some of
which have arisen out of the jurisdiction. Mu-
hammad Abdul Kadar it. The E. I. Rv. Co....
I. L, Bap. 1 Had- 876, 1678.
D.gmzed by GoOgle
( m >
DIGEST OF CASES.
JURISDICTION— contd.
15, • Subordinate Judge— Suit toredeem
Usufructuary Mortgage— Subject-matter of Suit
—Court Fees Act VII. of 1870.] In a suit insti-
tuted in the MunsifTs Court for " complete"
possession of certain lands by redemption of a
usufructuary mortgage and ejectment of the
-defendants, valued at Rs. 150, the principal sum
Secured by the mortgage, the defendants denied
the mortgage and set up a proprietary title to
the lands. The Munsiff returned the plaint to
the plaintiff (or presentation to the proper
Court, holding that, having regard to the nature
of the defence, the suit must be regarded as one
to recover possession of land, and tbe value
thereof being more than Rs. 1,000 he had no
jurisdiction to entertain the suit:—
Held, that such decision was right. The
question was not One of institution fee but of
jurisdiction ; and the subject-matter of dispute
was not only whether the property had been
redeemed by payment of the debt out of the
usufruct, but whether the property and the right
to redeem belonged to the plaintiffs ; and the
value of the property having been found to ex-
ceed Rs. 1,000, the suit was rightly held not to
he cognizable by the Munsiff. KaUAndas v.
Nawal Singh. Pearson and Spankie, JJ... I,
L. Rep. 1 AIL 620, 187S.
S. C. under Appeal— Civil. 36.
16. Act X. 0/1872, §§ 231, 471, 472—
Power of Sessions Judge to commit to himself
Cases not triable exclusively by Court of Ses-
sion.] A Sessions Judge committed an accused
person for trial before the Sessions Court on a
charge of having given false evidence in a trial
held in the Court of Session, having himself
held the preliminary inquiry into the case ; —
Held, that the commitment must be quashed.
It is only in cases triable exclusively by the
Court of Sessions, that the Judge is empowered
to commit or hold to bail and try an accused
person charged with the offences mentioned
§§ 467, 46S, and 469. In cases of a like nati
which are not triable by the Court of Sessions
exclusively, all that the Judge is empowered t
do is to send the case for inquiry to any Magi.
trate having power to try or commit for trial
the accused person under | 471.
The words "commit the case itself " occu
in j 471, do not (when read in connection
f 231) mean that the Court of Sessions may
JURISDICTION - -contd.
nit the case to itself. Empress 0. Futtew
JvabKhan. Birch and Hitter, JJ...I. I- Rep.
4 Cal. 570,1878.
16ft. Sessions Judge Power of to com-
t— Penal Code, ff 109, 193, 198, 311, 218—
Charges—Power of High Court as a Court of
Revision— Criminal procedure Code, Act X. of
1872, §§ 297, 472] /.. made a complaint by
petition against S., which was headed under §'§
193 and 21S of the Penal Code, but in the body
of it contained accusations against S. which, if
would have amounted to an offence pun-
ishable, under § 466 of the Penal Code, with
even years' imprisonment. Tbe Magistrate-
iquired into the charges against S. under f f 193
nd 2*8 of the Penal Code, and discharged him.
L. then applied to the Court of Session to direct
ommittal of S. for trial, on the ground that
he had been improperly discharged. The Court
of Session, accordingly, directed the committal
of S, and S. was committed for trial charged?
under f 2lS of the Penal Code, and acquitted by
the Sessions Court. The Court of Session then,
under § 472 of the Criminal Procedure Code,
Act X. of 1872, charged L. with offences under
§§ 1 93, '95, 211, and 109 of the Penal Code,
and committed him for trial : —
Held by Stuart, C.J.— That the commitment
was valid. If the charge on which the order of
commitment was made related exclusively to
$ 193 at the Penal Code, the commitment might
have been bad, inasmuch as an offence under
that section is not triable exclusively by a Court
of Session. But in the present case the order
of the Sessions Judge for commitment, not only
directed a charge under f> 193, but also two other
chargesof gTeater magnitude under §§ 195 and*
211, the offences defined in which being exclu-
sively triable by a Court of Session, a commit-
ment on them necessarily carried with it and
involved the right to inquire into and try the
offence under f 193.
Held also, that the High Court as a Court of
Revision has power to- quash an order of com-
mitment made by a Court of Session, under
*472of theCriminal Procedure Code, Act X.of
1872, the power given to the High Court under
§ 197 of that Code to quash a commitment by ft
competent Magistrate not being intended In an
exclusive sense, or depriving the High Court of
its large powers under § 472.
Spankie, J., doubted whether the High Court
could cancel a commitment made by a Sessions
D,„i„.db»Googlc
( "9 )
DIGEST OF CASES.
(
>
JURISDICTION— amid.
fudge under § 472 of the Criminal Procedure
Code, Act X. of 1872, no express power to do so
having been granted, while there was a provision
by which a commitment made by a competent
Magistrate could be quashed (J 197). If the
commitment had been made solely on a charge
Under § 193 of the Penal Code, of giving false
evidence, the charge would not have been
One triable exclusively by a Court of Ses-
sion, and then, though the power of the High
Court to quash the commitment before trial was
doubtful, there would be no doubt of the power
of the High Court to do so after trial, either on
Held also, that the commitment was. good.
The Court of Session having ordered the com-
mitment on charges under §§ 195 and 21 1 of the
Penal Code, which were exclusively triable by
the Court of Session, there was no illegality in
adding the other charge. Empress t. Lachvan
Singh I. L. Rep. 2 All. S98.
17. Act X. of 1872, S 64- Transfer of
Case-Burmah Courts Act XVII. of 1875, § 35.]
The Special Court at Burmah has power to
entertain an appeal from a sentence of death,
or other sentence pissed by the Judicial Com-
missioner, in a case transferred by him to his
own Court from that of the Sessions Judge,
under the powers conferred by § 54 of Act X.
of 1872, and § 35 of Act XVII. of 1875, the
hearing subsequent to the transfer being an
exercise of original jurisdiction on the part of
the judicial Commissioner. Empress i>. Tsit
Ooe. Garth, C.J., Jackson and. McDonnell, JJ ..
I. L. Rep. 4 Cal. 6G7,
1878.
18. Municipal Commissioner — Suit
against Collector— Public Capacity— Bombay Act
VI. 0/1873, * U-Notice of Action.-] When
the acts complained of by the plaintiff were
committed before Bombay Act VI. of 1S73 came
into force, by the Collector of the District as
President, and by the members of a Municipa-
lity, appointed Municipal Commissioners under
Act XXVI. of 1850 :—
Held, in a suit instituted on 4th December
187410 the Court of a Subordinate Judge, 1st
Class, that ( 86 of Bombay Act VI. of 1873 did
not apply, and that notice of action was not
JURISDICTION-ronW.
Held also, that the Collector was, in his official
capacity of District Magistrate, a member of the
Municipality, under ( 6 of Act XXVI. of 1850,
id therefore that the Subordinate Judge had
no jurisdiction, but that the suit ought to be
tried by the District Judge. Gakgadhar
vkarn o. The Collector of Ahmmedna-
. Wesiropp, C.J., and N. Harridan, J ...X
L. Rep. 1 Bom. 638, 1877.
1Q, Couff Fees Act VII. of 1870, ( 4,
Schedule II., Art. 17, CI. 3 and 6— Valuation
of Suit— Act XIV. of 1869, f 24 — Return of
Plaint.'] A Subordinate Judge of the 2nd class
has no jurisdiction to entertain a suit for a
declaration of the plaintiff's right to inherit
the property of a deceased person, when the
value of that property exceeds Rs. 5,000.
Whether the suit be merely for a decree de-
claratory of title to, or whether it be to establish
title coupled with a prayer for possession of, the
rights of the deceased person, the inheritance is
the subject -matter in dispute within the mean-
ingof Act XIV. of 1869, ( 24; and the actual
value of the estate to which the plaintiff claims
to be entitled, and not the value which it may
eventually represent to the plaintiffs, after pay-
ment of debts and legacies, is the value of the
subject-matter for the purposes of jurisdiction.
The Court Fees Act VII. of 1870 cannot be
used as a guide in ascertaining value for the
purposes of jurisdiction. The law may well lay
down for purposes of revenue certain fined rules
for the valuation of suits ; but that valuation
cannot be accepted as a criterion of a matter of
fact, such as the actual amount or value of a
claim, on which the jurisdiction of a Court
depends.
Where the Appellate Court decides that the
lower Court had no jurisdiction to entertain the
suit, it should return the plaint to the plaintiff,
in order that it may be presented to the proper
Court Bai Makhor t. Bulakki ChakU-
Xemball and N. Harridas, JJ...L L. Rep. 1
Bom. 1 538, 1874.
SO. Valuation of Suit—Subject-mal.
ter.J For the purpose of determining the ques-
tion of jurisdiction, the valuation of the suit
should be computed according to the market
value of the subject-matter of the suit, and not
according to the special rules applicable to
valuation fixed in Act VII. of 1870. Kalu
D,gltlzed by G00gle
( TO )
DIGEST OF CASES.
{ 782 )
JURISDICTION— amid.
BhUVAJI V. Vishram MawAji. Westropp, C.J.,
and A'. Harridas, J...L L. Rep. 1 Bom. 643,
1877.
JURISDICTION OF DISTRICT JUDGE.
Appeal — Value of Subject. matter in
See Bengal Civil Courts Act VI. of
1871, f 32.
Kali Charan Rai v, Ajudhja
Rai .XL. Rep. 3 AIL 148.
Appeal in Suit for Rent less than Rs. loo—
Question of Proprietary Title.
Set Act XVIII. of 1873, j 93. 3.
Bisheshur Singh v. Musst. Su-
gundki I. L. Rep. 1 All.
see.
■ High Seas.
See Jurisdiction. 10.
Municipality— Suit against.
See Suit against a Municipality.
MahamadJamal .... I. L,
Rep. 3 Bom. 146.
JURISDICTION OF HIGH COURT-
Appeals from Sonthal Pergannas.
Sec Jurisdiction. II.
Goods obtained by Offence or Fraud
within— pledged to Defendant residing
See Jurisdiction. 19.
To Imprison for Contempt.
See Imprisonment for Contempt.
Martin v. Lawrence. ..I. L.Rep,
4 cai. ess.
— — In Matters relating to Revenue— Suit
against Collector of Sea Customs
- Offence committed at Cyprus.
See Offenco committed at Cyprus.
Empress v. Sarmukh .Singh ...
I. L. Rep. 3 All. 218.
- Offence committed by British Subject at
Zanzibar.
See Offence committed in Foreign
Territory.
Empress d. Dossaji Gulam Hus-
sein IL Rep. 3 I
JURISDICTION OF HIGH COURT— contd.
Power of the Legislature to effect.
Si* Act VX of 1874, §5.
Feda Hossein...L L. Rep. 1 Cal.
431.
See Legislative Power of the Gover-
nor General in Council. 1. 2.
Empress h.Burrah. I. L. Rep.
3 Cal. 63 ; I. L. Rep. 4 CaL
172; L.Rep. 5 I. A. 178;
L. Rep. 3 App. Ca. 880.
— Over Small Cause Court.
In Ike matter of Qw\
L L. Rep. 1 Cal. 7B,
Suit by Creditor to have Trusts carried out
of Deed of Trust giving Trustees Power
to sell Lands in Mofussil.
Set Suit for Land. 2.
Delhi & London Bank v. Wor.
dei„.L L. Rep. 1 Cal. 340.
Suit for Land — Suit (or Injunction to re-
strain Working Mines on Defendant's
Land— Disputed Boundaries-
See Suit for Land. 1.
E. I. Rv. Co. b. Bengal Coal Co.
I. L.Rep. ICal. 98.
a deli.
See Jurisdiction. 14.
JURISDICTION OF MAGISTRATE OF
THE DISTRICT— To call for Proceed-
ings in case of Discharge by Subordinate
Magistrate.
StrRivival of Prosecution, § 6.
Impx. v. Gal'dae'a.,.1. L.Rep. 3
Bom. 034.
To Order Re-trial
See Revival of Prosecution. 5.
lMfx. v. Gaudapa ..I. L. Rep. 3
Bom. 534.
See Criminal Procedure Code, Act
X. of 1872,(395. 1.
Dijahuh Dim I. L. Rep. 4
CaL 647.
D.gmzed by GoOgle
{ res )
DIGEST OF CASES.
( W* >
jurisdiction of magistrate of
THE DISTRICT— contd.
— To Proceed without Complaint, where Pro-
secutor has not availed himself of a
Sanction to prosecute.
See Criminal Procedure Code, Act
X of 1872, { 142.1.
Empress o. Nipc
..I. L. Rep.
4 Cal. 712.
JURISDICTION OF MAGISTRATES
IK MADRAS PRESIDENCY
IN RESPECT OF OFFENCES
AGAINST SPECIAL OR LOCAL
LATA
See Madras Act III. of 1868.
Reg. v. Kandakara ...I. L. Rap.
1 Mad, 223.
See Jurisdiction IS.
JURISDICTION OF REVENUE
COURTS.
See the Index heading Juris diction of
Civil and Revenue Courts.
Claim arising out of or connected with
Collection of Revenue — Suit for Contri-
See Act XIX. of 1878, § 241.
Rah Dial v. Gulab Singh. .X L.
Rep. 1 AU. 28.
. To decide Questions of Title in Applica-
tions under Act XVIII. of 1873.
See Rea Judicata. IB.
SHIUBHU Narain Singh v. Bach.
CHA...I. L. Rop. 2 A11.20O.
• Suit by Co-Sharer in a Mahal against
of Deceased Lambardar for Share of
Profits collected by Deceased.
See Act XVIII. of 1873, § 93. 2,
Bhikan Khan v. Ratan Kuar...
I. L. Rep. 1 AIL 612.
In Suits for Money Equivalent of Am
of Grain Rent.
See Act XVIII. of 1873, § 63. 1
Tajuddin Khan o, Rah F
shad Bhacat.,.I. L. Rep. 1
All. 317.
— Wrongful Dispossession of Lessee by '
See Act XVELL of 1873, f 98, CL
m.l.
Abdul Aziz «. Wali Khaf
I. L. Rep. 1 All. 3
JURISDICTION -SESSIONS JUDGE—
0 commit to himself Case not triable
clusively by Court of Session*.
See Jurisdiction. 16. 16a.
JURISDICTION OF SHALL CAUSE
COURTS — MOFUBSIL.— Suit for
Arrears of Rent (less than Rs. 500) at
Enhanced Rule— not within.
See Small Cause Court— HofussiL
6.
B:\B5HETTI J. VENKATARAMANA...
I. L. Rep. 3 Bom. 164.
Suit for Balance (less than Rs. 500) due on
account of Rents collected from Plaintiff's
Zemindaries by Defendant's Father as
Plaintiff's Agent is within.
See Small Cause Court — HofussiL
7.
Dyebukee Mundun v. Mudhoo
Mutty...L L. Rep. 1 CaL
123.
Suit for Baluta Hais (less than Rs. 500) is
within.
See Baluta.
Naru o. Naro...... L L. Rep. 3
Bom. 28.
Suit for Huq-i-Ckakarun or other Zemin-
dar! Cesses is not within.
&« Small Cause Court— HofussiL 4.
Mahku v. .Board, of Revenue...
I. L. Rep. 1 AU. 444.
Suit for Maintenance of Hindu Widow in
Absence of Bond or Special Contract is
not within.
See Small Cause Court— HofussiL
1.8.
Apaji v. GAngabai.,.1. L. Rep.
9 Bom. 632.
SlDLlNGAFA V. SlDAVA Ibid.
614.
Suit against a Municipality is not within.
See Suit against a Municipality. 1.
Ahuedabad Municipality v. Ma-
HAMAD JAHAL.,.1. L. Rep. 3
Bom. 146.
Suit to recover Money (less than Rs. 500)
paid to prevent Sale of Tenure is within.
See Small Cause Court— HofussiL 6.
Krishna K. Saha if. Bireshur
Mozoomdar...L. L. Rep. 4
CaL 696.
D.gmzed by GoOgle
DIGEST OF CASES.
-Suit to recover Moveable Property less
than Rs. 500, attached in Execution of
Decree, is within.
See Small Cause Court — Mofusail.
— Suit for Value of Crops illegally distrained
5* Bung. Act VIII. of 1880, §98.
Hyder Ali v. Japar A11...I. L
ltep. 1 Cal. 183.
See lies Judicata. 8.
Ikayai Khan,. Rahimat Khan,
I. L. Rep. 3 AD. 97.
JURISDICTION OF SMALL CAUSE
COURTS-PRESIDENCY TOWNS
— To try Questions of Title to Immoveable
Property.
See Small Cause Court- -Presidency
Town. 2. 3.
JURISDICTION OF SUBORDINATE
JUDGE, lat CLASS -Collector, Suit
aglinst.
See Jurisdiction. 18.
Gangadhar «. Collector op
A HM EON AGAR... I. L. Hep,
1 Bom. 638.
JURISDICTION OF SUBORDINATE
JUDGE, Snd CLASS.
See Jurisdiction. 19. 90.
JURY— Acquittal by— Appeal,
See the Index headings Acquittal and
Ap p eal— Criminal.
Certificate by.
See Certificate of Jury. 1.
Nowla Ooma v. Bala Dhurhaji,
I. L. Rep. 3 Bom. 91.
Walji Karimji v. Jaooanath
Premji...!. L. Rep. 3 Bom.
See Jurisdiction. 17.
JURISDICTION OF SUBORDINATE
JUDGE— Municipality — Suit against.
See Suit againat a Municipality. 1.
v. MahamadJamal I. L.
Rep. 3 Bom. 146.
Suit to Redeem Mortgage— Denial of Mort-
gage— Value of Land exceeding Rs.
1,000— Suit within the.
See Jurisdiction. 15.
Kalian Das v. Nawal Singh
I. L. Rep. 1 All. 630.
Reg.
Hum
Chose ... I. L. Rep. 1 Cal.
207, 319, n.
Constitution of.
See High Court Criminal Proce-
dure Code, Act X of 1875,
§§ 33 to 89. 1. 3.
Reg- v- Lalubha...!. L. Rep. 1
Bom. 333.
Reg. v. VtTHALDAS...Ibid. 463.
— — ■ Trial by— of Offence triable with Assessors.
See Trial by Jury. 1.
Empress v- Moium Chunder Rai.
I. L. Mep. 8 CaL 765.
JYOTISHI WATAN— Right to Share in—
Suit for Declaration of,
See Penaiona Act XXUX of 1871,
,4
Uaraji 11. Raj aram... I. L, Hep. 1
Bom. 75.
EABULATATDAR KHOT— Dharekaris—
Occupant— Bombay Act I. of 1865 ( X, CI. j, k,
and I. and ( 48- Ay. XVII. of 1827, § 3, CI. I
— Inferior and Superior Holder — Privity of
Estate.} The plaintiff sued as kahulayatdar
that to recover from the defendant the Govern-
ment assessment on some land cultivated by
the defendant as mortgagee in possession, the
mortgagor who was the "occupant" having
failed to pay it. The land remained in the
Government books entered in the name of the
mortgagor as occupant.
Held, that the plaintiff was entitled to recover
the amount of the assessment from the defend-
ant i for though the mortgagor, being the occu-
DigitizsdbyGOOC^Ie
DIGEST OF CASES.
BABULAYATDAR KUOT-contd.
pant, according to Bombay Act I. of 1865,
responsible for the assessment, yet he wa:
snlety responsible.
Regulation XVII. of 1827, J 5. enables the
Government, and therefore the holder of t
rights of Government, on failure of the superi
holder to pay the revenue, to realize it from t
inferior holder, a position which, in the sense
the Regulation, was held by the mortgagee, t
defendant. The laws for realizing the la
revenue establish a kind of privity of esta
between the superior and inferior holder, by which
the tatter, taking the profits of the land,
satisfy the obligations of the former to Ce-
ment, independently of, and even in opposition
to, any agreement between the two contracting
parties. This liability adheres to the occup
and enjoyment, and cannot be got rid of, except
through its resignation by the Sovereign or the
Sovereign's representatives. Kmshkaji Ravji
Godbole 1. Ramchandra Sadashiv. West and
N.Harridas,}] I. L. Rep. 1 Bom. 70,
1875.
KABULAYAT— Suit for— by one Co-Sharer
Of Land.
See Co-Sharers of Land. 1.
Guni Mahomed t. Mohan. ..I. L'
Bep. 4 Cat 96.
Suit for— False Defence— Over- Estimate
of Rent by Plaintiff.
See Suit for Kabulayat. 2.
BhojoKishoheSfnohb. Bharrut
Singh...!. L. Rep. 4 Cal.
963.
■ Suit for — Presumption of Landlord's Will-
ingness to grant— Potla h— Tender.
See Suit for Eabulayat. 1.
Gogon Manjyo. Kashiwari Debv.
I. L. Bep. 3CaL408.
KANAH MORTGAGE - Otti Mortgage -
Time of Redemption] Per Curiam.— It is now
settled law that in the case of Kanam and Otti
mortgages it is not competent to the mortgagors
to redeem before the arrival of the specified time.
Per Innes, J., dissenting from Mashoob Ameett
SuBBada v. Marem Rcddy (8 Mad. H. C. Rep.
3')- — If in the case of any mortgage the period
for redemption is postponed to a fixed date by
special agreement, effect should be given to such
KANAM MORTGAGE— contd.
agreement. Keshava p. Keshava. Morgan,
C.J., and Innes, ] I. L. Rep. 2 Mad. 45,
1877.
KANAKA— Land Tenures in.
See Land Tenures in KanaTa.
Bhaskarappa b. Collector of
Kan aha.., I. L. Bep. S Bom.
452.
KABANAVAW— Removal of— from Office.
Set Malabar Law. 2.
Ebavani v. Ittapu.-.I. L. Bep. 1
Had. 153.
Right of — to revoke Authority to Anan-
dravan to manage Taiwad Property.
See Malabar Law. 3.
GoVlNDAN t>. KaNNARAN..!. L.
Bep. 1 Had. 351.
KAZI— Hereditary Kaai— Appointment to and
Qualifications for that Office.'] The enactment
of Bombay Regulation XXVI. of 1827 seems to
have been adverse to any supposition that the
office of Kazi could be hereditary. That enact-
ment was repealed by Act XI. of 1864, but that
repeal leaves the law as it stood before Reg.
XXVI. o( 1827 was passed.
The Mahomedan law does not regard the
office of Kazi as hereditary, or sanction Ihe grant
of such an office to a man and his heirs. The
appointment of Kazi lies exclusively with the
Sovereign or other chief executive officer of the
State, and should be exercised with the greatest
circumspection with reference to Ihe fitness of
the individual appointed.
The Sovereign may have full power to make
the vatan atttached to the office of Kazi heredi-
tary, though he cannot, under the Mahomedan
law, make the office itself of Kazi hereditary.
Qu/ere, whether a local custom to enjoy theoffice
of Kazi hereditarily would be valid. Jamal
Ahmed h. Jamaljallal. Westropp, C.J., and
Mvili, J LL.Bep. 1 Bom. 633, 1877.
3. Mahomedan Lam— Hereditary Kami
-Reg. XXVI. of 1817— Act XI. of 1864.]
Where a sanad granted by the Emperor Au-
-ungzib in A. D. 1693 did not purport to confer
in hereditary Kasiship, but was a grant of the
office of KaBi, personally, to an ancestor of the
plaintiff —Held, that the subsequent recogni-
01 appointment of members of the same
Diarized by Google
)
DIGEST OF CASES.
( 7M )
X AZI - ton Id.
family as Katis by native governments did not
prove that the office was or could be made here-
Regulation XXVI. of iSiJ, relating; to the ap-
pointment of Katis, was repealed by Act XI. of
1864, whereby it is recited that it is inexpedient
that the appointment of Kati should be made by
Government. The continuance by the Col-
lector, therefore, of an allowance to the plaintiff
jn 1867, could not be regarded as a constructs
appointment of him to be Kati. 'Jamal Ahmed 1
JamalJaUal (I. L. Rep. I Bom. 633) followed.
Quart, whether a local custom that a KatUhip
thou Id be hereditary, would, having regard to
the Hahomedan law, be valid. Daudsha *■
ISMAIUHA. Westropp, C!J., and Kemhail. J...1
L. Rep. S Bom. 78, 1878.
VBOJAB— Inheritance— Custom— Evidence —
Burden of Proof.'] The widow of a Khoja
Mahomedan who has died childless and intes-
tate succeeds to her husband's estate in prefer-
ence to his sister. In the absence of proof of a
Special custom to the contrary, Hindu law re-
gulates the succession to property amongst
Khojas, and the burden of proving such special
custom lies on the party asserting it.
In order to prove a custom of inheritance
among Khoja Mahomedans, at variance with
the rale* of Hindu law, evidence of the opinions
merely of the leading members of the commu-
nity is not sufficient. Instances must be proved
In which the alleged custom has been observed
and followed. Hirbai v. Gorbai (11 Bom. H. C.
Rep. 294) observed upon. Rahimatbai v. Hir-
»a(. Wtttrtpp, C.J., and Green, J . I. L. Hep.
8 Bom. 84, 1878.
SHOT— Entry of Names of Tenants of— as
Occupants in Survey Register.
See Entry of Names of Tenants of
a Shot in the Revenue Sur-
vey Register as Occupants.
D. R. Bah v. The Survey
COMMISSIONER OF RllT.
NAG1RI ... I. L. Bsp. 8
Bom. 184.
Kabulayatdar.
See Kabulayatdar Knot.
Krishnaji *. Chandra. ..I.
L Bop. 1 Bom. 70.
KHTJD-KABHT— Lands in a Mahal held by
Lambardar— ata Nominal Rental.
Set Liability of a Lambardar to
Co-Sharers for Profits.
Mangal Khan *. Mumtaz
Au L L. Sep. S AIL
088.
KIDNAPPING -Abetment of.
See Abetment. 4.
Rbo. e, Sahia Kaunda...!. L.
Hep. 1 Mad. 178,
Minor Girl — Guardianship — Penal Code,
(361.] A minor girl, ten years of age, who wa»
living with her husband and mother-in-law, was
sent out to collect and sell cow- dung cakes.
As she was reluming home the accused detained
her at his house and took her away, intending
to go to a different place with her. Accused
was convicted of kidnapping a minor from law-
ful guardianship.
On appeal., held, confirming the conviction,
that the fact of the accused not inquiring, at the
of removing the minor from lawful guar-
dianship, whether she had a guardian or not, was
excuse - for by not inquiring he took the risk
himself, and could not escape the legal con-
sequences. A child of such tender age is, primt
lubject to guardianship, and no one is at
liberty to take away such child without per-
properly obtained. Empress e. Umsad
Weil and Pinhey, JJ...L L. Rep. 8
Bom. 178, 1878.
KISTBANDI -Suit en — Acknowledgment of
tarred Decree— Limitation Act XIV. of l8$g, %
I— Contract Act IX. of 1871, i 3<,0 3— Con-
sideration.] On the 31st May 185S, A. obtained
money decree against £.,but did not apply
for execution till 1864, when B. objected to the
application, on the ground that it was barred by
imitation. Pending the decision of the objec-
tion, B., under an arrangement with A., pre-
mted a petition to the Court, in which she
acknowledged a certain amount of principal and
i be due, and executed a Kistbandi,
agreeing to pay the amount by monthly instal-
ments. B, paid the instalments regularly,
iicept once, when, default being made, execution
was issued out, and the instalment paid. On
her death, execution was taken out against her
representatives, who objected that the decree
was barred, and that the Kistbandi had no force
igalnstthem. This objection was, on appeal ta
D,gltlzed by G00gle
( 791 )
DIGEST OF CASES.
( 7M )
KISTBANDI-«»/<A
the High Court, allowed. A. (hen brought a
suit on the Kistbandi :—
Held, that at the time the Kistbandi was en.
tered into, the decree was capable of being
executed under the law as it was then adminis-
tered, and that, therefore, there was a valid
consideration for the Kistbandi.
Held also, that, even had there been no valid
consideration for the Kistbandi, yet the principle
laid down in i 1$, CI. 3, of Act IX. of 1872, and
which prevailed before the passing of that Act
would have saved the Kistbandi from becoming
void for want of consideration. Heera Lall
Mookhopadhava *Dhunput Singh. Prinstp
and Tottenham, JJ...I. L. Rep. 4 Cal. BOO; 3
Cal. Rep. 554,1878.
See Limitation 43. 48. 44.
Ragiioji v. Abdul. ..L L. Rep. 1
Bom. 580.
Kamv Prosonno v. Heera Lal.
I. L. Rep. 2 Gal. 463.
Munoul Pbash a d e. Shama Kant.
LL, Rep. 4 Cal. 708.
KNOWLEDGE- -Acquiescence— Estoppel.
See Mortgage. 23.
Mohan 1. MlTTU Bibi.-.I. L.
Rep. 3 Cal. 68.
EOLACHAR.
See Hindu Law — Inheritance —
Primogeniture .
Chowdhrv Ckintakan Singh ».
musst. nowlukho konwari.
L. Rep. SLA. £63 ; I. L.
Rep. I CaL 1S3.
KORLAYA.
See Land Tonuro in Kanara.
Bhaskarappa c. Collector of
Kanara ...I. L. Rep. 8 Bom.
462.
KULKARNI — Adoption by — Government
Sanction unnecessary.
See Hindu Law— Adoption. 14.
NARHAR V. NARRAYAN.-.I. L.
Rep. 1 Bom. 607,
KULKARNI WATAN Right to Share in
— Suit (or Declaration of.
&* PeiwioM ActXXUX of 1871, 6
4.
Babajib. Rajarah I. L.Rep.
1 Bom. 75
KTJMKI ASSESSMENT AND CULTI-
VATION.
See Land Tenure in Kanara.
Bhaskarappa v. Collector of
Kanara. ..I. L. Rep. 3 Bom.
408,
EURPHA TENANT— Transfer of Journal
Rights of.
See Landlord and Tenant. 8.
BONOMALI V, KOVLASH CHUNDER. ..
I. L. Rep. 4 Cal. 135.
LACHEa
See Acquiescence. 1.
UdaBegak v. Imam-ud-Din...I.
L. Rep. 1 All. 83.
See Limitation. 10.
JUGGERNATH H. SYUD SHAH...L.
Rep. 3 L A 48.
LAMBARDAR -Liability of— to Co-Sharers
for Profits.
See Liability of- Lambardar to Co-
Sharers for Proflta.
Mangal Khan it. Muhtaz Au ..
L L. Rep. 3 ALL 380.
Payment by — of Arrears of Revenue out
of Collections in his hands— Suit for
Share of Profits— Right to Set-off.
See Set-off. 1.
Udai Singh *. Jagan Natm...L
L. Rep. 1 All. 180.
LANDS ACQUIRED BY MRMBBB OF
MALABAR TARWAD.
See Declaratory Decree. 10.
C HAND I! II. CHATHU NaMBIAR...L
L. Rep. 1 Had 881.
LAND ACQUISITION ACT X. OF
1870.
1. Principle on which Compensation it
to be given.'] Where Government takes pro-
perty belonging to p/ivate individuals under
statutory powers, those persons should obtain
such a measure of compensation as is warranted
by the current price of similar property in the
neighbourhood, without any special reference
to the uses to which it may be applied at the
time when it is taken by Government, or to the.
price which its owner may previously have given
for it. If it can be satisfactorily shown that the
purposes to which the land is applied are ai
productive as any other to which it is applicable
D,„i„.db»Googlc
DIGEST OF CASES.
t 7f>* >
_ or that the price given by the owners is its full
market value, it would be just to assess the
compensation on that basis. In accordance
with these principles, the question for inquiry
is, what is the market value of the property, not
according to its present disposition, but laid
out in the most lucrative way in which the
owners could dispose of it. Premchand Bur-
sal v. The Collector of Calcutta. Garth,
C.J., and Macphtnon, J...L L. Rep. 2 Cal.
103, 1876.
ft f) 38, 39, 40, 58— Compensation,
Apportionment of— Right of Suit.'] Act X. of
1870 contains abundant evidence of the inten-
tion of the Legislature that all proceedings in
regard to land acquisition and compensation
should be conducted under the Act, and not
otherwise. A decree which apportions com-
pensation made under f 39 of that Act by a
Court to which Such matter has been referred
under j 3S is final, and cannot be questioned
otherwise than by the appeal permitted under $
39. Dwaria Singh V. Solano (22 W. Rep. 38)
dissented from. Niluonee Singh Deo *.
Rahbundmoo Roy. faction and Tottenham, ]J.
I. L. Rep. 4 Cal. 757 ; 3 Cal. Rep. 211,
IS 73.
LAND BELONGING TO GOVERN-
MENT—(Bombay Act I. of 1S65, § 11.)
See Bombay Act I. of 1865, § 36.
Collector of Thana ». Dada-
bhai... I. L. Rep. 1 Bom.
308.
LAND CHARGED WITH PAYMENT
OF AN ALLOWANCE FOR
DOWER— Transfer of.
See Covenant running with the
Abadi Begum v- Asa Ram. ..I. L.
Rep. 2 All. 163.
LAND HELD FREE OF ASSESSMENT
UNDER GRANT FROM GO-
VERNMENT BESTOWING THE
LANDS THEMSELVES.
See Feniiona Act XXITT. of 1871.
3.5
Ravji v. Dadaji I. L. Rep. 1
Bom. 523.
Babaji ». Ballal... Djid. 70.
LAND HELD BT JOINT OWNERS-
Abatement of a Nuisance— Criminal Trespass-
Mischief— Penal Code, H I4I, 147, VS-Exami-
nationof Witnesses for the Defence- Criminal
Procedure Code, Act X. of 1872, )4 219, 359, 362,
Sip— Superintendence of High Court— Stat. 24
andz$ Vict., C. 104, { it.] A dispute having
arisen between G, and 5., joint owners of certain
land, in consequence of the latter having erect-
ed a navbut-kkana on a portion of the joint
land, lo which the former objected, the MagisJ
trate, hearing of the dispute, made an order,
after holding an inquiry, adjudging exclusive
possession of that part of the land on which the
nawbut.lihana stood to S. G. thereupon insti-
tuted a suit to have it declared that he was en-
titled to joint possession over the whole of the
land, and that S. was not entitled to erect a
navbul-hhana thereon, and prayed that the
na-abut-khana should be broken down, and
obtained a decree which was in terms that the
plaintiff's suit should be decreed. The nanbut.
khana not having been removed by 5., some
servants of G. went to the place and pulled it
down; for which, on the complaint of S, they
convicted of mischief and fined under { 42;
of the Penal Code, by the Magistrate. Subse-
quently some servants of G., including the pe-
lers, seeing workmen in the employment of
-erecting the nawbut-khana, not only pro-
tested against the erection, but pulled down the
bamboos, thrusting aside the servants of S , and
wing to the ground one of them who had
ibedupon one of the bamboos and refused to
come down.
In a complaint being made to the Magistrate,
the 9th October 1S77, !ne accused were at
once summoned ; and on their appearing before
the Magistrate on the same day, he at first pro-
j to deal summarily with the case, but
afterwards framed a charge under Jf 141 and
147 ot the Penal Code, and then and there call-
ed on the accused for their defence. Several
witnesses were named for the defence, and sum-
monses were issued next morning for their
attendance. The witnesses not having been
found, the accused, on the 12th, applied to the
Magistrate for further time, representing that
the time was that of the Doorga Poojah , but
the Magistrate declined to allow further time,
and proceeded to convict all the prisoners of
rioting under \ 147 of the Penal Code, and
sentenced each to three months' rigorous
imprisonment; —
Di,iii,.db»Goo<^le ■
( 796 )
DIGEST OF CASES.
( ?«* >
LAWS HELD BY JOINT OWNBRB
Held, by Jackson, J.— Thai the Magistrate
was in error in making the above order under $
530 of the Criminal Procedure Code, adjudging
exclusive possession to S. The subject-matter
was one to which that sanction could have
no 'application. There was really no question
of possession. The land was in the joint
possession of G. and S, and the only question
was, whether one of them being* joint 'owner
was at liberty to make use of the land in such
a manner as to cause what the other joint
owner chose to consider an annoyance, and
against the will of that joint owner. The
order, therefore, under $ 530 was beyond the
power of the Magistrate. Held also, that an
order under $ $30 is only valid until the person
to whom possession is given is ousted by due
course of [aw, and that the effect of the judg-
ment obtained by G. was to oust S., and to
prevent 5. from being legally entitled, at the
time when the bamboos were pulled down, as
stated above, to have those bamboos put to-
gether in that place in the form of a turmbut-
khana, and therefore tbat the acts of the accused
in removing and pulling down the bamboos did
not amount to mischief within the meaning of
t 43S of the Penal Code, as there was no causing
of wrongful loss in the act done by the accused.
Held also, that the case being warrant case,
it was the duty of the Magistrate to have sum-
moned and examined the witnesses offered on
behalf of the accused, and that under the cir.
cumstances of the case it would have been
reasonable to have allowed further time to pro-
cure the attendance of those witnesses.
Section 539 of the Criminal Procedure Code
means that if among the persons named by the
accused as witnesses for the defence, the Magis-
trate considers that any particular witness is
included for the purpose of vexation and delay,
he is to exercise his judgment and inquire
whether such witness is material; but that
section does not enable a Magistrate to inquii
generally into what the defence of the accused
person is to be, and to consider whether,
learning the nature of that defence, he is abso.
lutely to abstain from summoning the whole of
the witnesses cited by the accused.
Held, also, that as the accused were not on
the land in question as members of an unlawful
assembly, nor for any unlawful purpose, the
conviction, as well as the procedure under which
the conviction was bad, was illegal.
LAND HELD BY JOINT OWVSM
Eeldby Cunningham, ]., that the accused
were merely exercising the remedy of abating
a private nuisance, and there having been prac-
tically no violence, and no real danger of any
breach of the peace, the police standing by and
looking on all the time, the act of abatement
Htld, also, that the act of the complainant in
erecting the nambut-hhann was mischief within
the meaning of § 435 of the Penal Code.
field also, that the accused were exercising
a legal right of self-defence of property against
such mischief, and therefore that the conviction
must be quashed.
Hdd further, per Ainslie and McthnntU, ]].,
that the High Court cannot interfere, in the
exercise of its powers of extraordinary juris,
diction, unless all other remedies provided by
law have been exhausted. The petitioners in
this case having the remedy of appeal, until that
remedy had been resorted to, the High Court,
upon the proper application of Stat. 24 and 35
Vict., C. 104, $ 15, could not interfere. Empress
t. Rajcoohar Singh I. I.. Rep. 3 Cat.
673 ; 3 Cat Sep. 62, 187a.
LAND LET 70S CULTIVATION— Ac-
quisition of Occupancy Rights in — by
Ryot, does not alter Terms of Tenancy
except Conditions fixing a term therefor.
Set Bengal Act VTJX of 1869. 1.
Lai.t. Sahao v, Dbv Nakrain
Singh I. L. Rep. 3 OaL
781.
LAND IN A MAHAL HELD BY THE
LAMBARDAR KHUD KA BUT AT
A NOMINAL RENTAL.
Mangal Khsh v. MumtazAli.
L L. Eep. 2 AIL 280.
LAND PAYING REVENUE - Khalisa
Mahals— Remission of Revenue for a
Term of Years.
See Bale in Execution of Decree.
8
Showers v. Sbth Gobind Dass.
I. L. Bap. 1 All. 400.
Digitized by G00gle
( m )
DIGEST OF CASES.
( '96 )
LAND PURCHASED FROM A HINDU
DEVISEE- Liability of — (or Debts of
his Testator.
Bet limitation. 38*.
Grundrr Ch under j. Mac
tosh I. L. Rap. 4 Cal.
897.
LAND RECLAIMED FROM THE SEA.]
The plaintiff demised to the defendants for
term of 999 years certain land, for a portion of
which, A., the defendant, was liable to pay an
annual rent of Rs. 500 per acre. For the other
portion, B., described as being " at times c
ed by the sea," the defendant was liable to pay
an annual rent of Re. ■ per acre, " until
portion thereof should have been reclaimed
from the sea," " and from and after any porti
should have been reclaimed from the sea, until
the whole should have been so reclaimed,
yearly rent, calculated at the rate of Rs. 500 per
acre, for so much of the said ground A
should for the time being be reclaimed from the
sea, and after the whole should have been
claimed, the yearly rent of Rs. 50° per '
for the whole." At the time of the execution of
the lease it was not in the contemplation of
the parties that a dock should be constructed
on the premises demised.
The lessees had power to dig or excavate any
portion of the demised premises, and to ret
the soil therefrom.
The lessees afterwards excavated a portic
B. and converted it into a dock, at the entrance
of which they constructed gates, by means of
which they could in a measure, but not entirely,
control the flow of the sea into the dock. The
defendants charged nothing for the use of the
dock, but for the use of the wharves rou.
they charged a fee.
Held, that though it was not ' improbable that
bad it been contemplated at the time of the pre-
paration of the lease that the land B. might be
dealt with as had actually taken place, that
event would have been provided for, yet the
Court could only seek to discover the intention
of the parties from all parts of the deed ; and
that the expression " to reclaim from the sea"
signifying in its primary and ordinary sense the
conversion of the reclaimed land into dry land,
by rendering it secure from the ingress of the
sea, with the view of its being used as such,
there was 00 reason for giving those words an
extruded or liberal interpretation, and that the
LAND RECLAIMED FROM THE SEA
—eo*ld.
construction of the dock was not such a recla-
mation as was contemplated in the lease, and
therefore the enhanced rent of Rs. 500 per acre
could not be charged for the water area of the
dock. The Secretary op State for India v.
Sir A. SASSOON Sargent and Green, JJ...I. L.
Rep. I. Bom. 013, 1876.
LAND IN BALSETTE.
See Bombay Act I. of 180ft, { 86.
Collector op Thana v. Dada-
bhai L L. Rep. 1 Bom.
3S9.
LAND SUBMERGED— Re-formation of.
St* Re -for mati on of Submerged
Land.
Hursuhii Singh e. Svud Lootp
AliKhan ...L Rep. MI. A
88.
— — Right of Occupancy in— Extinguishment
of — by Non-Payment of Rent during
Submergence.
Set Extinguishment of Right of
Occupancy.
HeKNATH DuTTt'. AsHGUR SlN.
oar I. L. Rep. 4 Cal.
894.
LAND TENURE IN KANARA— Land
Revenue— Kumri Cultivation — Kumri Assess-
mtnl— jW^Arso/Vargdars-Kumri.] Theplain-
tiff sued to recover possession of four specified
tracts of forest land situated in the district of
North Kanara, from which he alleged he had
been wrongfully ejected under an order made
by the Collector in 1S61, and to recover certain
, of money exacted from him between 1849
and 1S61 by the revenue authorities, as a tax or
for the exercise by him of his proprietary
rights by way of kumri cultivation.
As to three of the tracts of the land in cues-
>n the plaintiff based his claim on certain
sanads alleged to have been granted by the
officers of Tippoo Sultan to his ancestors)
md as to the fourth he claimed a title by pre.
cription, alleging that the land had been in
the possession of his family for 40 years
prior to 1870, the date of the institution of the
lit. The plaint contained no indication of
claim which was put forward during the argu-
«nt of the appeal, that the payment to the Go-
vernment of assessment in respect of kumri.
D.gmzed by G00gle
DIGEST OF CASES.
( 800 )
LANS' TENURE IK KAMAEA-«p<m.
pepper, and farmaish, or in particular of kumi
assessment, and the entry of such charge in th
chitta of a vargdar, muli or gent, gives to such
vargdar, or at least is a recognition by Govern,
tnent that such vargdar has a right of owner-
ship in the forests in respect of which it wa<
contended such assessment was imposed. The
plaintiff admitted a right on the part of Govern,
ment to take certain kinds of timber from the
forests, but subject to this he contended that
the timber, as the soil and produce of the foi
generally, belonged to him, subject also to
right of Government to levy an increased ass
ment thereon. Subject to these rights on
part of Government, the plaintiff claimed an
absolute right to have kumri cultivation carriei"
on within the limits specified ; that he and n
other had a right to cultivate and give in culti
vation as rice land jungle land within those
limits ; and an exclusive right to cut down and
dispose of timber within those limits
thtd by Green, ]., on the evidence, that the
sanads put forward were not proved to have
been in fact executed by any person having
authority to execute such documents ; and that
even if genuine they had never been recognized
by the British Government as valid and binding,
or been made the foundation of the revenue
relations between the British Government and
the plaintiff's family or those under whom they
claimed.
The fact, however, that the plaintiff put for-
ward those sanads as the root of his title, — so
far at least as concerned the greater portion of
the property claimed, — was an admission that
at the date of those sanads the then Govern-
ment had the power to make the grants they
purported to evidence ; and, the sanads being
out of the way, the plaintiff had to establish
that he had, at the institution of the suit,
succeeded to rights of property which by his
own case at the dates respectively of the sanads
belonged to the then Government, and would,
in the absence of any private right shown then
to exist therein, have vested in the East India
Company after the taking of Seringapalam in
May 1799, and the subjugation of the country
nnder the rule of Tippoo Sultan. ■
The primary meaning of the word mrg was
'account,' and it was only an extension of the
original meaning that it came to be used as
indicating the property to the
which such account relates.
LAND TENURE IN KANARA-(»«W.
Kumri assessment was in its origin an assess.
ment upon, or having reference to, the actual
number of labourers employed cutting down
forest, and not with reference to any particular
portion or quantity of land or its produce.
Originally kumri assessment was inserted in
targs only as incidental to rice or garden cul-
tivation, and the entry of such assessment in
the plaintiff's vargs, and its payment for a long
series of years, did not show or manifest any
estate or permanent right at all in the forests
as such, as being vested in the plaintiff, even as
to such ground as he might have been able to
show had been at former times kumried by his
labourers ; and whether or not the Government
may have had, or having had may have ceased
to have, any right to collect korlaya (tax on bill-
hooks) direct from the cutters so long as kumri
cultivation at all is or was carried on, yet they
have a right to stop the cultivation altogether
(remitting the kumri assessment entered in the
vargs) in all the forests of North Kanara, inclu.
ding those in question in the present case, not
shown to be private property, on some other
ground than the mere entry of kumri assessment
a particular varg or number of vargs.
The plaintiff's suit, therefore, which was to
cover possession of particular tracts of forests
1 the ground of ownership shown or evidenced
ily (apart from the question of the sanads) by
such entry in his vargs of kumri assessment,
rightly dismissed. But even assuming that
the plaintiff had established a right exclusive of
others, and permanent as against the Govern.
iumri cultivation carried on in
such places as he could show had theretofore
been kumried by him or by his permission, or
:ven throughout the limits claimed in the plaint, ■
such a right, having regard to the incidents of
the cultivation itself, did not necessarily involve
lership of the soil. Such general
ownership, not being in the plaintiff, was with
the Government ; and the plaintiff, if his right,
ipposing he had any, were disturbed, either by
stranger or by the Government, ought to have
iserted it by a suit for damages for the disturb-
ance of a right in alUno solo, and not by a suit
> recover possession.
Even had the plaintiff, therefore, established
permanent and exclusive right to carry on
imri cultivation within the limits specified in
is plaint, yet his suit, which was directed to
the ground of general
D,gltlzed by G00gle
( 801 )
DIGEST OF CASES.
LAND TENtntE IN KANARA-™«/rf.
-ownership, should have been dismissed. That
was the case he put forward In the last, and to
which his evidence was directed, and it would
be quite inadmissible for him (o Call back on
anothet case, which, if established, would have,
■s its result, a relief wholly different to that
which, and which alone, he had all along asked
lor.
Held also, that the plaintiffs claim was barred
by limitation.
Per West, ]. — Though the introduction of the
British rule did not extinguish private rights
already fully acquired, the principle to start
from is that waste lands, belong to the State.
The mere fact that a vargdar is charged in the
village accounts with an assessment for kumri,
cannot of itself make him the owner of all the
forests within, its boundaries. He could not
become the owner, in. fact, without the active
or passive assent of the Government passing
its proprietary right to him. Such assent is
not to be inferred as to an extensive tract of
forest from the payment and receipt of some
insignificant sum, e.g., a moiety of the rent
realized on a small number of acres which may
most naturally be referred to rateability, or the
mere participation by the State, according to
an immemorial rule, in all profits arising from
the lands. As there must be certainty in a
grant as to the area conferred, so there must be
certainty as to the area, or at least as to the
identity, of the object occupied, if the occupa-
tion is to raise the presumption of a grant, or
of acquiescence in a definite occupation. It is
not inconsistent with this principle, but rather
as complementary to it, that the further rule
accepted, that the possession, and the owns
ship springing from possession, of a farm ■
varg as a whole, and within the limits as
which certainty is attainable, are not prevented
or destroyed by an undoubted encroachment,
or by a want of certainty as to some particular
plot of ground, or as to the precise delimitation
here or there of its proper boundary line. A
suit to ascertain boundaries does not imply that
either of the owners of contiguous estates ha;
no property at all ; and as (here may be an
effective grant of lands in possession though
occupied of wrong, so may distinct acquiescence
give a like right in (he like case , but there cai
be no grant, no acquiescence in a possession
unless the essential elements of possession — i
fixed, a definable, and an exclusive possession — '
LAND TENURE IN KANAKA- amid.
, and are present to the perception of the
In the case of a private owner even, the allow,
nee of acts which do not necessarily involve
ny denial of his ownership, or a grant from
im, does not suffice to create an ownership
gainst him, and the mere non-interference of
the State, to which neglect is not to be imputed,
it to be accounted for, if it can otherwise be
unfed for, on a presumption of a surrender
s ownership. Such a transaction must be
enced by an undisguised and effective appro-
priation assented to or submitted to by someone
laving due authority; or else fortified by an
quivalent law of prescription. Under these
onditions a true ownership even of the forests
night arise, but the mere payment of the tumri
ssessment would not create it in the case of a
VTgdOT,
Upon the evidence, Held, that the sanads
vere not proved, nor had the plaintiff establish-
ed any exclusive possession of, or proprietary
right in, any part of the forest claimed, while
the evidence showed a continued and consistent
exercise on behalf of the Government of its
proprietary right over the timber, and even the
firewood, in the forests in dispute, from the time
that the assertion of the right became a matter
of appreciable consequence ; and that the plain-
tiff's family knew this, and submitted to it, and
themselves applied repeatedly for timber to the
revenue officers. From the year 184I down-
wards there was no instance which effectively
disproved the acquiescence of the plaintiffs
family in the ownership of Government. That
ownership had not been parted with at all in the
opinion of the parties most interested. If it
had been parted with, and became vested in the
plaintiff's ancestors as an integral portion of the
estate in the land which the plaintiff claimed
was theirs, then the assumption and the exercise
of ownership by the Government over the trees
from 1S41 down to the filing of the suit, was
itself a perpetual ouster of the family from a
portion of their estate, and would constitute a
complete eviction of the owners as such. If
there was such an ouster proved as to the whole
by a multiplicity of acts bearing on the several
parts of the estate, but all referable to the same
principle or purpose, then the plaintiff had a
cause of action in the nature of ejectment so
soon as be was disturbed io his possession by
any of these acts, in their legal nature such- as
Digitized by GoOgle
DIGEST OF CASES.
( W4 >
LAND TENURE IN KAITAEA-0-.W.
to contradict and annihilate hi* right through-
out the estate, even though their immediate
physical incidence was on but particular parts
of it, — a cause of action extending as to its
physical object to the whole property, because
his power over the whole was invaded and over-
thrown. Regarding the plaintiffs right there-
[ore to land, to timber, to kumri cultivation,
and to reclamation and disposal at his own mere
will, as parts, so far as the right was concerned,
of a single legal unit, the cause of action
had arisen more than twelve years before the
institution of the suit. The plaintiffs right so
far as it rested on the sanads was not supported,
but contradicted by the active enjoyment
assumed on behalf of the Government thirty
years almost before the institution of the suit, of
an important part of the advantages conferred
by the grants, and on an assertion of rights,
which if the grants were to be construed as the
plaintiff desired, called for immediate action in
the Court on his part. The claim was also
contradicted by a series of transactions in which
the Government officers disposed, from time to
time, of portions of land included within the
Confines of the estate which the plaintiff claimed.
His claim, therefore, on the sanads was unten-
able-
Setting aside the sanads then, the mere pay-
ment of kumri tax, however it may have indicated
■ that some land was beneficially occupied by the
vargdar, afforded by itself no certain evidence
either of the place of that occupation, or of its
nature as temporary or permanent, as held on
proprietary right, or as merely casual and
precarious. It is the possibility of referring the
exaction levied to some particular area, shown
to have been actually and exclusively held by
the tax-payer, either by extrinsic evidence, or
by that of the Government-accounts themselves,
that make* the payment and receipt of a tax a
practical assertion, and admission of private
ownership of the space thus rendered distin-
guishable.
But private ownership being established, it still
be understood to convey the same rights in India
at in England. It may be subject to restric-
tions and qualifications, varying according to
the peculiar laws of each country ; and those
acts which under one system would be necessa-
rily regarded as contradictions of any ownership
over the object on which they were exercised
LANS TENURE IN K ANARA— amid.
except that from which they spring, may, under
another system, be quite compatible with an
ownership subsisting unimpaired side by side
with the limited right to which they would be
attributed. The reserve of timber generally, as
of particular kinds of timber, may be referred
to as an instance of this divided dominion-
What the Government intended, and practically
intimated through its officers, constituted the
bounds which it set to the plaintiffs acquisition
through its acquiescence both as to the extent
of the rights to be exercised, and the local limits
within which they were to be exercised. As
to the former point, whether the plaintiffs
predecessors gained* a general ownership of
the soil or not, they either did not gain an
ownership of the timber, or were wholly ousted
from the exercise of that ownership from 1841
downwards.
As to the latter point, the evidence showed
that the plaintiffs family, as vargdart, exercised
rights over forest tracts in all the estates to
which the present claim extended, though as to
some of those tracts theae rights could nor be
referred to any particular space. But even
though there had been no interference on the part
of the revenue officers with the plaintiffs free
use of the forest, that free use without an ex-
clusive appropriation would not in itself consti-
tute an exclusive right against the State. The
right arising from the State's eminent domain
is not extinguished by its mere non -exercise ;
and its exercise was not called for until some
public injury or inconvenience arose.
The exercise of the plaintiffs dominion had
been prevented, except within such limits as the
executive officers prescribed, at any rate from
1843, while the ownership of the Government
over the forest trees, and its proprietary right in
the toil had been, during the same time at
least, uniformly asserted, and the plaintiffs suit
was therefore barred by limitation. Bhaska-
rafpa *. Collector of Ka*ara. ..I. L. Rop. 3
Bom. 483.
LANDHOLDER.
Sie Madraa Act VHX of 1866, f 1 . 1.
ZlNULABDIK ir. VIJ1EN...I. L.
Rop. 1 Had. 40.
LANDLORD AND TENANT.
Set Right* of TaTLraadartj. 1,
Faki* Muhammad*. TirumaUl.
I. L. Rep. 1 Mad. SOS.
Diarized by Google
(
>
DIGEST OF CASES.
(
)
LANDLORD AND TENANT -™«
Acquisition of Occupancy Rights by Ryot
in Lands let (or Cultivation does not
alter Terms of Tenancy, except Condi-
tions fixing a Terra therefor.
See Beng. Act VTII. of 1869. 1,
Lai Sahoo v. Dev Narain
Sinoh...L L. Bep. S Cal.
7S1.
Adverse Possession.
See Landlord and Tenant. 9.
English Law of— Application of, to India.
See Landlord and Tenant 7.
— Enhancement of Rent.
Strthe Index heading Enhancement
of Bent.
— Enhancement of Rent — Arrears — Interest.
See Interest. 8.
Khajah Ashanoollah v. Kajge
Aftaboudeen...I. L. Rep. 4
0&L694,
— Enhancement of Rent — Auction Purchaser
—Right of.
See Beng. Reg. XLIV. of 1793, § 0.
Moiunv Mohuh Roy v. Icha.
moves Oasseea...I. L. Rep.
4 Oal. 612.
Sec Enhancement of Rent. 1.
PuRIIANUND ASIUK ». ROOKINEE
Goovtbs Ibid, 793.
- Enhancement of Rent— Bhaoli Rent.
See Enhancement of Rent. 4.
Hanuhan Parshad v. Kaule
sar Pan day ..I. L. Rep. 1
All. 301.
- Enhancement of Rent— Of Dependent Ta.
look created before Decennial Settlement, .
and held at Fixed Rent.
See Enhancement of Rent. 9.
HURRONATH RoV •- GoBIND C.
Dutt-.L. Rep. 2 LA. 19a
- Enhancement of Rent of Ghatwals.
See Qhatwali Tenure.
Leelanund Singh Bahadoor i
ThakoorMakrunjun Singh-
L L.Rep.3CaL2fil.
LANDLORD AND TENANT -cm. /<f.
— - Enhancement of Rent by ljaidar.
See Enhancement of Rent 7.
DOORGA P. MVTEE V- JoVNARAIH
Hazrah...I. L. Rep. 2 Gal.
474.
Enhancement of Rent by Inamdar-
See Enhancement of Rent. S.
Parshotam v. Kalian. ..I. L,
Rep. 8 Bom. 348.
oVfHirae. 2.
Babajjs. Narayan.,.1. L, Rep.
3 Bom. 840.
VlSHNUBHAT V. UaHAJ] Ibid.
346, a.
See In&mdar,
Pkatapravb.Bayaji...I. L.Rep.
3 Bom. 141.
- Enhancement of Rent— Notice of, un-
necessary where Stipulation in Pottah
for increase of Rental as Lands brought
Set Bengal Act VUL of 1869,
§14.2.
N 1ST A R Pi I Dasi d. Bonomali
Ckatter]i...I. L. Rep. 4
CaL941.
- Enhancement of Rent by One Co-Sharer,
of Land.
See Co- Shavers of Land. 1,
DoORtiA Prashadv. Jovharain...
I. L. Rep. 4 Cal. 90.
See Enhancement of Rent. 7. 9.
DOORGA P. MVTEE V JOVNARAIN
Hazrah...L L. Rep. 2 Cal.
474.
Balajis. Gopal-.I. L. Bep- 3
l23.
- Enhancement of Rent Reserved by Sanad
in A. D. 1775— Conversion of Coinage.
Sec Enhancement of Rent. 3.
MEER Mahomed HossEIN t>.
Forbes.. .L. Rep. 9 L A. 1.
- Enhancement of Rent— Right of Mulgar
on — to recover from his Mulgeni Tenants.
See Mistake.
Babsiietti t. Vehkataramanu...
I. L, Bep. 3 Bom, 1S4.
Digitized by G00gle
( SOT )
DIGEST OF CASES.
LANDLORD AND TENANT— ,wJ.
Enhancement of Rent of Tultubi Bromultur
Tenure— Notice.
See Enhancement of Rent. 6.
Nil Money d. CHUNDERKANr..I.
L. Bep. a Cal, 135.
i Enhancement of Rent — Tenure held by
Joint Hindu Family— Service of Notice
on one Co-Sharer enough.
s™ Bengal Act VUI. of 18 69, f 14.
1.
NuBODtEP I'. Sonaram Dash. ..I,
L. Bep. 4 Cal. 592.
Ejectment from Chakeran Lands.
See Chakeran Lands.
HcRROCOBJND v. RANRuTNO I,
L. Bep. 4 Cal. 67.
■ Ejectment by Co-hiamdar.
See Co -In am darn.
Krishkarav r. Govind I. L.
Bep. S Bom. SB, n.
Ejectment of Cultivating Ryot.
See Partition Suit.
SAMIKDA PlLLAl IP. SUBHA ReD-
diar I. L. Bep. 1 Had.
338-
Ejectment of Ex. Proprietary Tenant
Ousting Tenant admitted by Purchaser of
Proprietary Rights in a Mahal.
See Act XTHI. of 1873, ( 7. 1.
BakhatRamp. WaiirAu.. LI.
Bep. 1 All. 44B.
Ejectment — Illegal Ejectment— Limitation
to Suit by Occupancy Ryot for Possession.
See Bengal Act VUI. of 1869,
( 27. 1.
GOLABOLEE ». KOOTOSBOLLAH SlR,
CAR...I. L. Bep. 4 Cat 5S7.
- Ejectment — Notice to Quit running for 15
Days only not sufficient to maintain Suit
to eject Tenant from Year to Year.
See Ejectment. 1.
Ram Rutton it. Netro Kallt...L
L. Bep. 4 Cal. 33d.
Ejectment — Notice to Quit — Suit for
Ejectment is not.
Sec Ejectment 1, ubi xufira.
See Landlord and Tenant. I.
LANDLORD AND TENANT -amtd.
Ejectment, Suit for — on Non-Payment of
Arrears of Bkaeli Rent.
See Bengal Act VUI. of 1868,
§§ 21 and 59.
Kishek GopalMawar*. Barnes.
L L. Bep. 2 cal. 374.
Erection of Buildings by Occupancy Ryot.
See Beng. Act VIII. of 1869.
Lal Sahoov. DeoNarain Sinch.
I. L. Bep. 3 Cal. 781.
Erection of Buildings by Tenant at Will
or from Year to Year on Lands demised.
See Landlord and Tenant. 2.
Exchange of Pattaa and Mucbalkas neces-
sary as soon as possible after Creation
and during Continuance of Tenancy.
See Madras Act VUI. of 1865,
Hi.
Seshadri Ayangar v. Sanda.
nam... I. L. Bep. 1 Had.
146.
Ex. Proprietary Tenant— Right of, in Sir
See Act XVIXX. of 1878, ) 7. L 8.
Bakkat Raw «. Wazir Au.. L
L. Bep. 1 AIL 448.
Bhagwan Singh *■ Murli Sinch.
Ibid. 408.
See Act X VUI. of 1873. i 9. 2.
Bhagwanti e. RudR Man Tiwaki.
I. L. Bep. 2 Cal. 145.
Ijara— Right of Renewal Lease.
See Bight of Occupancy. 8.
Jardine, Skinner Si Co. ». Rani
Soorat Soondari Debi . L.
Bep. 5 I. A. 164.
Ijmaili Property — Suit for Rent — Co-
See Landlord and Tenant. 4.
- Implied Covenant for Quiet Enjoyment.
See Landlord and Tenant. 7.
- Increase of Rental— Stipulation in Pottah
for — Notice of Enhancement.
Ser Bengal Act VHX of 1869, $ 14.
a.
NlSTARNI Dasi s. Bonomali Chat-
terji X. L. Bep. 4 CaL
D.gmzed by G00gle
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DIGEST OF CASES.
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LANDLORD AND TKNANT-cmW.
See Enhancement of Beat. 8.
Ekram Mundui. u. Holoduuk
Pal...L L. Hop. 8 Cal. 271.
— — Khot's Tenants entered as Occupants in
Survey Registers.
See Entry of Names of Khot'a Te-
nant* in Revenue Surrey
Register ae Occupant*.
D. R. Bam v. The Survey Com-
missioner OF RaTNAGIR1...I.
L. Rep. 3 Bom. 134.
— Kurpha Tenant— Transfer of Right of.
See Landlord and Tenant. 8.
— — Lease by Lessor out of Possession — Les-
see's Right of Entry.
See Ejectment. 3.
Tibrv I. Kristodhah Bose L.
Rep. 1 1. A. 76.
See Landlord and Tenant. IB.
LOKENATH GhOSE v. J UGOBUNDHOO
Roy ..L L. Rep. 1 CaL 297.
— - Lease for a Year certain with Agreement
to cultivate for another Year if Landlord
desire it — Registration.
See Lease. 1.
Apa s. Narhari I. L. Rep. 3
Bom. 31.
Lease, Registration of- Madras Act VIII.
of 1865, §3-Puttah.
See. Registration. 11.
Ramaswaw*. Collector of Ma.
OURA...L. Rep. 6 I. A. 170.
— ■ - Lease of Zemindary Rights,
See Act XVIII. of 1878, g OS, OL
m. 1.
Abivul Aziz v. Wau Khan I, L.
Rep. 1 All. 838.
— Limitation — Admission by Tenant of Lia-
bility to pay Rent— Non-Payment of
Rent for 11 Years by Occupancy Ryot
gives him no Title to the Land.
Set Landlord and Tenant. 9.
See Limitation. 81,
Poresh Nakain v. Kassi Chun.
deb I. L. Rep. 4 Cal. 661.
LANDLORD AND TENANT- -«>**/.
Notice to Quit running for Ten Days only
not sufficient to maintain Ejectment
against Tenant from Year to Year.
See Ejectment. 1.
Rak Ruhon >. Metro Rally... I,
L. Rep. 4 Oal. 839.
Notice to Quil — Suit for Ejectment not
equivalent to.
See Ejectment. 1, uii supra ; and set
Landlord and Tenant. 1.
Sue Landlord and Tenant. 6.
- Right of Occupancy — Acquisition of— by
Firm of Capitalists.
See Right of Occupancy. 6,
Rai Koml-l Dossf.it v. Laidley ..
I. L.,Kep. 4 Cal. 9S7.
- Right of Occupancy — Acquisition of — in
Jalkar.
See Jalkar. 1.
JUGGOBUNDHOO ST. PROMOKATH ...
I. L. Rep. 4 CaL 767.
Srr Right of Occupancy. 6.
Boll ye Sates b. Akkam Ally...
Ibid. 961.
- Right of Occupancy — Acquisition of — ir>
Lands let for Cultivation does not alter
Terms of Tenancy except Conditions fix-
ing a Term thereto.
See Hong. Act VTII. of 1869. 1.
Lai. Sahoo v. Dev Narain Singh.
I. L. Rep. 3 Cal. 7801.
- Right of Occupancy — Acquisition of, fcy
Ryot occupying and cultivating for more
than Twelve Years under one not Right-
ful Landlord.
See Right of Occupancy. 1.
ToOLI'VK BlBKE V. RaOHIKA P,
Ckunder I, L. Rep. 8
Cal. 660.
- Right of Occupancy — Inheritance to.
See Act XVHT. of 1873, 1 9. 9.
Bhagwanti 0. Rudr Man Tiwari.
I. L. Rep. 9 All. 146.
See Right of Occupancy. 3.
AblakhRaiv. Udit N. Rai. ..I,
L. Rep. 1 ALL 868.
Digitized byGOO^Ie
DIGEST OF CASES.
( 812 )
LANDLORD AND TENA2TT— amid.
Right of Occupancy in Submerge)] Land —
Extinguishment of, by Non-Payment of
Rent during Submergence.
See Extinguishment of Bight of
Occupancy.
HEKNATH DUTTB. ASHGUR SlN
dor... I. L. Rep. 4 ChI. 894
■ Right of Occupancy Not Transferable in
Absence of Custom.
See Right of Occupancy. 2. 4,
Ablakh Rait. Udit Narain Rai.
I. L. Rep. 1 All. 303.
DWARKA NATH 0. HURRISH ClIUN.
der ..LL.Rap.4Cal.985.
See Act XVlil. of 1873, § 9. 1,
Umrao Begum v. Land Mort-
gage Bank I. L. Bep, 1
All. S47.
See Act XVHX of 1973, § 9. I.
Umrao Begum p. Land Mort-
cage Bank. ..I. L. Bop. 1
All. 547.
See Bight of Occupancy. 3. 4.
Ablakh Rai e. Udit N. Rai...L
L. Bep. 1 All. 363.
DWARKA NATKV. Ht'RRISH Ch UN-
DER..,I. L. Bep. 4 Cal.
939.
- Sie Lands— Mortgage of Proprietary Rights
in a Mahal followed by Sale— Purchase
of Mortgagor's Interest by Mortgagee —
Lease by Mortgagee of Sir Lands —
Ouster of Tenant by Mortgagor — Mort-
gagee's Remedy.
See Act XVIII. of 1878, 5 7. 1.
Bakhat Ram „. Wazir Au...I.
L. Bep. 1 All. 448.
- Suit to Enforce Acceptance of Potlah —
Jurisdiction.
SwMadrae Act VIII. of 1869, }
9. 9.
Zahindar of Drvaracotr V,
VlKl'M VkNKAYYA L L,
Bep. 1 Had. 339.
LANDLORD AND TBNAKT- „nW.
Suit to Enforce Acceptance of Pottah —
Mortgage and Lease to Mortgagee by
Zemindar — Transfer by Mortgagee's
Heirs — Suit against Transferee.
&•<- Madras Act Tin. of 1865,
* 1.1.
ZiNULABDiHs. Vijien ..L L. Bep.
1 Had. 49.
See Madras Act TTU of 1860,
iB.l.
Sayud Chanda v. Lakshmana...
L X,. Bop. 1 Had. 45.
See Suit for Eabulayat. 1.
Gocon Manji*. Ktshiwarv Debt.
I. L. Bep. 8 Cal. 49S.
See Co Sharers of Land. 1.
GllNNl Mahowed v. Moran ...I.
L. Bep. 4 CaL 96.
Suit for Kabulayat at Enhanced Rent-
False Defence— Over -Estimate of Rent
by Plaintiff.
See Suit for Eabulayat. 3.
Brojo Kishorb Singh v. Bhar-
rut Singh. ..I. L. Bep. 4
Cal. 963.
t Enhanced Rate—
See Suit for Eabulayat. 1,
Gogon Manji v. Kashiwary
Debv L L. Bep. 8 CaL
498.
— Wrongful Dispossession of Lessee by Les.
sor— Jurisdiction of Civil and Revenue
Courts.
See Act XVIII. of 1878, ( 90,
CLm.l.
Abdul Aziz „. Wau Khan 1
L. Bep. 1 AIL 838.
- Wrongful Distraint— Cause of Action.
Set Madras Act VIII of 1366, f
49.1.
Srinivasa ». Emperumanar ..I.
L. Bep. 8 Xad. 42.
Digitized by G00gle
( 813 )
DIGEST OF CASES.
( 814 )
LANDLORD AND TENANT— eontd.
Wrongful Distraint by Third Person-
Landlord's Right to sue to set aside.
See Bight to Sua. 9.
Horro Narrain v. Shoodha
Krishto Bera h . ..I. I,. Rop.
4 Oal. BOO.
1. Noticeto Quit— Ejectment.] A ryot
whose tenancy can only be determined by a
reasonable notice to quit, expiring at the end of
the year, can claim to have a suit for ejectment
brought against him by his landlord dismissed on
the ground that he has had no notice. Rajen.
1 MoOKHOPADHYA 1) . B AS51DEH RtlllM AN
..X L. Hep. 2 Cal. 146, 1876,
See Ejectment. 1.
Ram Rotton Mundtil v. Netro
Killv Dasshk...!. L. Hep. 4
CaL 338.
3, Erection of Buildings by Tenant at
Will or from Year to Year— Bight of Landlord to
determine Tenancy — Compensation — Act X. of
1850, § 6.] There is no law in India which
converts a holding at will, or from year to year,
or for a term of years, into a permanent tenure,
merely because the tenant, without any arrange-
ment with his landlord, builds a dwelling-
house on the lands demised.
The terms of a holding, as between landlord
and tenant, must always be matter of contract
expressed or implied. If they enter into an
express agreement of tenancy, either written or
verbal, such agreement generally defines the
terms of the holding. If, on the other hand,
the tenant is let into possession without any
express agreement, and pays rent, he becomes a
tenant at will, or from year to year : or, in other
words, holds by the landlord's permission upon
what may be the usual terms of such by the
general law or local custom ; and in such a case
he is a liable to be ejected by a reasonable notice
to quit. Local customs may engraft special
terms and incidents on the contract of tenancy ;
but the existence of the custom in such cases
must be a matter of proof, and a Judge cannot
act on such customs until their existence is
duly established.
Where, therefore, the plaintiff, after due notice
to quit, sought to eject the defendants from
certain lands, of which it appeared that the
defendants and their ancestors had been in pos-
session for fifty or sixty years, and which had
LANDLORD AND TENANT- ronrd.
been used as a homestead, consisting of a
house and fruit trees ; but there was no evidence
as to the origin of the tenancy, nor (except as
to the amount of rent) as to the terms of it ;
nor did it appear who built the house or planted
the fruit trees : — Held, that the defendants
were tenants from year to year, and liable to
be ejected by a proper notice to quit. Advito
Churn Dey v. Pe>erDass (13 Ber.g. L. Rep. 417 ;
S. C. 17 W. Rep. 383) followed. Prosunno
Coomaree Debea t. Shbik Rutton Brparv.
Garth, C. J., and Birch, J L L. Rep. 3 Cal.
696 ; 1 CaL Rep. 677, 1B78.
8. Kurpha Tenant— Right to, transfer
—Execution.] The jummai rights of a kurfiha*
tenant is not transferable without the consent
of the ryot landlord. Bonohali Bazadur v.
Koylash Chunder Mojoomdhar. Garth, C.
J., and Jackson, J...I. L. Rep. 4 CaL 135
1878.
4. Suit for rent of Ijmaili Property— Co-
Sharers — Form of Suit— Parties.'] If ijmaili pro-
perty \s let to a tenant at one entire rent, the rent
is due in its entirety to all the eo-sharers, and all
are bound to sue for it ; no co-sharer can sue to
recover the amount of his share separately,
whether the other co-sharers are made parties
to the suit or not. But if the land demised
ceases to be ijmaili, and different portions of it
become the property of different owners, any
one of the owners may sue for so much of the
rent as he considers himself entitled to, making
the other owners parties to the suit.
Where co- sharers of ijmaili land let to a tenant
at an entire rent brought a suit against their
tenant to recover their proportionate shares of
the rent, and made the other co.sharers defend-
ants, avowedly for the purpose of obtaining an
adjudication of their title as between themselves
and the defendants other than the tenant :—
Held, that as the area of the property had not
been divided, as the rent had always been paid in
its entirety, and as the title of the co-shaiers re-
mained ijmaili, the suit would not lie. Anhoda
Churn Roy ». Kai.lv Coomar Roy. Garth,
• Note.— A kurpha tenant is an under-tenant
of a ryot, also called chukani in Rungpore, and
prajai (from praja), and generally shiimi or
petao ryot- They usually cultivate on the
terms of paying half produce. — Whinfield's Ijm
of Landlord and Tenant, 17.
Diarized by Google
< sis >
DIGEST OF CASES.
LANDLORD AND TENANT- contd.
C.J., and McDonnell, J. ..I, L. Hep. 4 Cal.
89, 1878.
6, Onus Proband i— Non-Payment of
Rent—Suit for Kent.'] In a suit to recover ar-
rears of rent, the plaintiff stated that he was
patnidar of certain lands, portion of which had
been sub-let to the defendants ; and he produced
in support of his statement a rent decree ob-
tained by his lessor in 1863 against two of the
defendants and their ancestors. Those defend-
ants stated that they had relinquished their
jamma in 1 863 ; and the other defendants con-
tended that rent had never been realized from
them, and denied the tenancy ; and further con-
tended that, as the plaintiff's lessor had with-
drawn from a rent suit instituted against them
in 1866, on their summoning him to appear as
a witness, the decree obtained in 1863 was no
proof that the relationship of landlord and
tenant existed after 1G63 ;—
Held, that the suit (in which the rent decree
was passed in 1663) having been a suit between
the predecessors in title of the parties, to the
present suit, and for rent of the same lands as
were in dispute in the present suit, the decree
in that suit established the relation of landlord
and tenant in respect of the lands in question
in that suit, and that relation having once been
established, it continued as between the parties
to that suit and their representatives in title,
until it was proved to have ceased ; and that it
lay upon the defendants, therefore, to prove
that that relationship had ceased. The with-
drawal by the plaintiff's predecessor in title
from the rent suit filed by him in 1866, did not
put an end to the relationship of landlord and
tenant established by the decree of 1866 ; and
the relationship of landlord and tenant having
been once proved, the mere non-payment of
rent, though for many years, was not enough
to show that the relationship had ceased to
exist. The defendants were bound to show that
it had ceased, by some affirmative proof ; espe-
cially in a case where they did not expressly
deny that they still continued to hold the lands
in question. Rungo Lall Mumdul v. Abdool
Gi/FFOOR. Garth, C.]., and McDonnell, J.. 1
L. Sep. 4 Cal. 314 ; 8 Cat. Bap. 118, 1878.
6.. Rtnt Suit — Liability of Tenant-
Rent due by former Tenant — Liability of
Tenure, 'J A landlord may, by obtaining a decree
for rent against his registered tenant, bind the
LANDLORD AND TSNANT-ronrJ.
tenure itself in such sort as to make it always
liable to be sold for the amount of the decree,
although it may subsequently be purchased by
a third person. In other words, the tenure thus
bound continues subject to sale at the landlord's
option, until the amount of the decree has been
satisfied, notwithstanding the tenure may pass,
by private sale or otherwise, into other hands.
But the landlord's remedy in such a case is
confined to the sale of such tenure under bis
decree. He cannot make a purchaser of such
tenure personally liable for rent which accrued
due before his purchase.
The remedies provided by the Rent Law for
enforcing the payment of rent by sale of the
tenure or by distress are remedies in rem. The
personal liability of one tenant cannot be trans-
ferred to another ; but each succeeding tenant
must be subject to his own liabilities. Rash
Beharry Bundopadhaya v. Peary Mohith
MtttKERJEE. Garth, C.J. , arid McDonnell,] ..I,
L. Rep. 4 Cal. 846 ; 3 Cal. Rep. 116, 1878.
7. English Lira of—Patnis, Darfatnis,
and Sepatnis.] " It seems to us that patois,
darpatnis, and sepatnis, although they may not
be in strict analogy with leases in England, lie
somewhere between out-and-out sales and
leases, and that at all events they contain ia
themselves sufficient of th'e nature of a lease to
incline us to give the grantee or taker, in cases
where it is otherwise equitable, that protection
which a lessor In England is understood to gua-
rantee his lessee for possession of the land.
" It seems to have been thought, not only by
Mr. Justice Kemp, but also by Sir Barnes Pea-
cock, that the rules applicable to the relation of
landlord and tenant in England, would be appli-
cable in this country, whenever no precise rule
regulating the subject is to be drawn from the
Hindu or other common law, and certainly
where those principles appear to be equitable,
we should be inclined to apply them." Per
Jackson,]. Tarachand Biswas v. Ram Go-
hind Chowdkky....L L. Rep. 4 Cal 778 ; 4
Cal. Rep. SO, 1879.
S. C. under Darpatni.
8. — Lease granted white Lessor is out of
Possession — Rights of Lessee— Suit for Possession , ]
A transfer of property of which the transferor
is not, at the time of the transfer, in possession,
is not ipso facto void.
D,„i„.db»Googlc
( 817 )
DIGEST OF CASES.
( 818 )
LANDLORD AND TEHANT-™iU.
Where a.patnidar, while out of possession of
the patni estate, granted a darpatni thereof : —
Held, that the darpatnidar's suit against third
persons, who were in possession of the estate, to
recover possession, would lie, it appearing that
the plaintiff bad paid an adequate consideration
foi the darpatni, and there being nothing to show
that the darpatni poltah was evidence of a con.
tract to beperformedin future on the happening
of a certain contingency, or that, if it were so, the
plaintiff had not done all he was bound to do to
entitle him to specific performance of the agree-
ment by the patnidar, hu I, on the contrary, the
agreement showing that the transfer was in sub-
stance complete, and not only that the consi-
deration money was paid, but that under certain
contingencies it would be refunded. Lokenith
Ghosr v. Jugobundhoo Roy. facison and
McDonnell, JJ...I. L. Rep. 1 Cal. 297, 1870.
See Ejectment. 2.
TlERV V. KRISTODKUN BoSF..,L
Hep. 1 I. A. 76.
9, Adverse Possession — Non-Payment
ef Rent— Onus Probandi of Determination of
Tenancy.] The plaintiffs,
leging
that S.
through whom they claimed, had given B., who
was represented by the defendants, in July 1828,
a lease of a house, on condition that B. should
pay a certain rent, and, that if he failed to do
so, he should vacate the house, such conditi
being contained in a Keraianama executed by
B. in S.'s favour, sued the defendants for the
rent of such house for two years, and for posses,
sion thereof, alleging a breach of such condi-
tion:—
Held (Spankie, J., dissenting), that supposing
a tenancy had arisen in the manner alleged, the
mere non-payment of rent by the defendants for
twelve years before the suit would not establish
that the tenancy had ceased, and that the defend-
ants had obtained a title by adverse possession
so as to defeat the claim j for if once the relation
of landlord and tenant were established, it was
for the defendants to establish its determination
by affirmative proof over and above the mere
failure to pay rent. Prem SuKH Das c. Bhu-
pja I. L. Hep. a AIL 017, 1879, F. B.
See Limitation, 31.
Pores h Narain Roy ». Kassi
ChUNDER TALUKDAR...I. L.
Rep. 4 Cal. 661.
LAND SEIZED AND SOLD OUT OP
JURISDICTION IN EXECUTION
OF DECREE- Eviction of Purchaser—
Right to recover Purchase. Money.
See Sheriff g Sale. 3.
Dorab Ai.r.v Khan v. Abdool
Azebz ..Lltep.fi I. A. 116;
S. C. L L. Rap. 3 Cal. SOS.
LAPSED BEQUEST — Qualifications an-
lexed to Original Share not extended to
Accruing Share, unless Express, or by
Mecessary Implication.
See Will 8.
MaSEVK 11. FER.UUSSON...I. L.
Rap. 4 Cal 670.
LAWFUL POLYGAMOUS MARRIAGE
—Revocation of Will of Jew by.
See Indian Succession Act X of
1863, § 06.
Gabriel?. Mordakai.,.1. L.Rep.
1 Cal. 148.
LEASE— By Person not in Possession.
See Ejectment. 2.
TlBRVo. Keistodhun Bose ..L.
Rep. 1 I A. 73.
See Landlord and Tenant. 8.
LoKCNATH GHOSB v. JuGOBUN-
dhoo Roy... I. L. Hep. 1 CaL
897.
Registration of.
See Lease.
See Registration. 11.
Ramaswami Chetti o. The Col-
lector OF M ADURA...L. Rep.
6 I. A. 170.
Registration Act VIII. 0/1871, S 3-] The
defendant took certain lands from the plaintiff
on the following agreement !—
"We undertake to cultivate the said land for
the year 1872 at a rental of Rs. , which we
agree to pay punctually. If you permit us to
cultivate the land another year, we will pay the
same rent as settled for 1873. If you choose to
withdraw the land, we are not to object."
Held, that the agreement did not require
registration. It was a kabulayat for one year
certain, and an expression on the tenant's part
of readiness to hold the land longer if the land-
lord desired it. Such an agreement did not, by
the landlord'* accepting it and allowing the
DigitlzSdbvGoogle
{
)
DIGEST OF CASES.
( 820 )
LEASE- -cotitd,
tenant to enter, create in the tenant any interest
extending beyond one year.
The " undertaking to cultivate or occupy'
contemplated by § 3 of the Registration Act
VIII. of 1871, is an undertaking accepted
to give -the tenant a right or interest in the land
— not an undertaking to take up the la
the owner at some future time should At. si
Afa Budgavda v. Narhari Annajee. West
and Pinhey, JJ...L L. Rsp. 3 Bom. 21, 1878.
LEASE BT ZEMINDAR— Hindu law-Ma.
drasAct VIII. 0/1865, \ II, Rule IV.} Under
the Hindu Law the granting of a lease, though
for a term, is an act within the scope of the
zemindar's authority as manager and owner of
(he zemindary, and is, as such, binding on hi
successors, unless in the circumstances in which
it was made, it was otherwise than bant, fide.
The second proviso contained in Rule IV. of
§ II of Madras Act VIII. of 1865 does not apply
to a lease which is bon& fids and valid under thi
general Hindu Law, and, as such, falls under
Rule 1. This proviso does not amount
repeal of the Hindu Law regarding ordinary
leases, but applies only to such leases whei
the circumstances in which they are made, they
amount to a fraud upon the power of thegrai
successor as manager, or to alienations made for
the personal benefit of the grantee and to the
prejudice of the successor. Ramanadan t-
SrinivasaMurthi. Morgan, C]., and M. Ayyar,
J I. L.Kep. 2 Mad. 80,1878.
LEASE OF ZEMINDARY RIQHTS.
Set Act XVIII. of 1873, § 96, CI.
m. 1.
Abdul Azziz v. Wali Kuan ..I.
L. Rep. 1 All. 33S.
LEAVE TO APPEAL— Granted ultra Vires
by the Courts in India— Preliminary
Objection.
See Practice— Civil. 1
Gajadhur Persh.
The Two
s or Emah Ali Beg...
L. Rep. 2 I. A. 206.
See Petition for Leave to Sao in
Forma Pauperis.
LEAVE TO SUE IN FORMA PA17-
FERIS— contd.
— Unsuccessful Application for — not a De-
mand by Way of Action.
See Mahomedan Law— Dower. I.
Ranee Khajooroonissa e. Ranee
Rveesoonissa...L. Rep. 2 I.
A. 985.
LEGACY — Assignment of — by Legatee to
Executor.
See Will. 3.
Vaughan v. Heseltine . L L.
Rep 1 All. 763.
Hurst v. Mussoorib Bank
Ibid. 762, 766.
Bequest of— to Sole and Separate Use of
Married Woman.
See Married Woman's Separate
Property. 2.
Hurst v Mussoorii Bank. ..I.
L. Rep. 1 All. 762.
Beresfordc. Hurst. ..Ibid. 779.
LEGAL DISABILITY.
See Pre-emption. 6.
Raja Rah it. Bans:... I. L. Rep.
1 AIL 207.
LEGAL GUARDIAN— Right of -to Custo-
dy of Minor— Prostitution disqualifies.
Sea Mahomed an Law— Guardian.
Abasi t. Dunne. ..I. L. Rep. 1
AIL 898.
LEGAL OBLIGATION.
See Betting aside Sale of Superior
Tenure, Effect of.
Srkenarain Bagchee si. Smith...
I. L. Rep. 4 Oal. 807.
See Liability of an Adopted Bon,
or of the Eatate in his hands,
for a Loan raised by bis
Mother for his Benefit.
Gadgeppa Desai b. Apaji Jivan-
eao L L. Rep. 3 Bom,
237.
LEGAL REPRESENTATIVE OF DE-
CEASED HINDU.
See Person taking Possession of
Estate of a Deceased Hindu.
prosunno chunder bhutta-
charjeeb. KrlstoChytunno
PAL...LL.Rep.4Cal.34fl.
DigitlzSdbvGoogle
{ sat )
DIGEST OF CASES.
LEGATEE- -Assignment of Legacy by— to
Executor.
Set Will 6.
V*UOHAH D. HESELT1ME...I. L.
Bap. 1 AIL 753.
Hurst v. Mussoorib Bank. ..Ibid
782, 706.
LEGISLATIVE VOWEE OF THE GO-
VEENOB GENERAL IN COttNClL-
Jurisdicliw of the High Court-Ait VI. of 1855
—Act XXH. of \&69, jj 9 to It.— Stat. 24anrf 25
Vict., C. 67, $ 22~Stat. 24 and 25 Vict., C. 104,
§§ 9, It, fl*(f I3—3 and 4 Wb>. /^., C 85-t6
and 17 Vict.,C. 95— 17011.* IS Jfirf., C. 77-
D<■l<tfarI■0«.] By Act XXII. of 1S69 certa
districts were removed from the jurisdiction of
the High Court of Calcutta, and by § 5 the
administration of civil and criminal justice wa
vested in such officers as the Lieutenant-Gover
■ nor of Bengal should appoint. By 5 9 tni
Lieutenant-Governor was empowered to extend
all or any of the provisions of the A
Cossyah and Jynteeah Hills. By a notification
in the Calcutta Gatettr of 4th October 1871, the
Lieutenant-Governor extended the provisions
of the Act to the Cossyah and Jynteeah Hills,
and directed that the Commissioner of Assam
should exercise the powers of the High Court in
the civil and criminal cases triable in the Courts
of that district. The two prisoners were tried
for murder in April 1S76, and were on convic-
tion sentenced by the Chief Commissioner of
Assam to transportation for life. On appeal by
(he prisoner Burah to the High Court :—
Held by the majority of the full Bench (Garth,
C.J., Macphtrton and Pontifex, J.J., dissenting)
that the High Court had jurisdiction to entertain
the appeal, and that such jurisdiction was not
taken away by Act XXII. of 1869.
Per Curiam.— The Governor-General in Coun-
cil had power by legislation to remove the
district from the jurisdiction of the Court,
Matkby, J.— The jurisdiction of the High
Court in the Cossyah and Jynteeah hills was
une vested in the Nizamut Adawlat at the time
of its abolition, and falls within CI. I, § 9 of Stat.
24 and 25 Vict , C. 104, and is by that clause
expressly subjected to the legislative powers of
the Governor- General in Council. The Legis-
lature did not decide by Act XXII. of 1869 that
the jurisdiction of the ordinary Courts should be
excluded in the Cossyah and Jynteeah hills, but
left the decision of that question to the absolute
£4
LEGISLATIVE POWER OF THE GO^
VERNOK GENERAL IN COUN-
CIL— contd.
discretion of the Lieutenant-Governor. It was
necessary, therefore, to consider whether it falls
the legislative power of the Governor-
I in Council to delegate the power <jf
determining whether or no a particular district
of British India shall remain subject to the
jurisdiction of the High Court. Stat. 24 and
5 Vict,, C. 104, { 9, alone makes the High
Court subject to any legislative control in
his country. The High Court has power,
ind it is its duty, to inquire and decide
whether an Act passed by the Legislative
Council is within the scope of its powers. The
Legislative Council exercises sovereign powersh
but by delegation only, and is subordinate to
the Imperial Parliament. The principle, that.
Where an authority involving personal trust and
confidence in art agent is donferred on him by
another to do acts on his behalf, such authority
be delegated, applies equally to public
ill:',:!
Where
a Legislature
jnly question ci
? If it is, it is
e prohibition.
the
s the disputed
aids the
ierior, which
; Legislative
Act XXII. of i?69, so fat
Cossyah and Jynteeah Hills,
of action prescribed by a
inferior is bound to obey.
Council when it merely gran
lother person to legislate does not make a law
ithin the meaning of the Apts from whbh it
derives its authority, tit,, Stat. 3 and 4 Wm.
IV., C 85,— 16 and 17 Vict.) C. 95 — 17 and 18
Vict, C. 77,-24 and 25 Vict., C. 67— and 33
C. 3 ; and therefore Act XXII. of 1869 is
Ainslie. J.— The question is, did the Supreme
d.an Legislature itself, directly or by neces-
ry implication, exclude the Cossyah and
Jynteeah Hills from the territorial jurisdiction
of the High Court ? Such exclusion is within'
the powers of that Legislature, A provision that
. shall c
ing it I
the Lieutenant-Governor to 1
icement, makes the fixing of that date a
isterial and not a legislative act ; but a pro-
decide whether the law shall be applied at all,
makes such a decision a legislative and not a
isterial act. Act. XXII of 1869 did not itself
DigitlzSdbvGoogle
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DIGEST OF CASES.
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LEGISLATIVE POWER OF THE GO-
VERNOR GENERAL IN COUN
CIL-conld.
do away with the jurisdiction of the High
Court, and the conferring the power to take
away that jurisdiction on the Lieutenant-
Governor was ultra vires.
Per Jackson, Ainslie, Markby, and Kemp, ]] —
The power of delegation cannotbe considered as
validated by any long course of practice, nor as
sanctioned by the tacit recognition of Parliament
Per Ainslie, J. — A distinction is to be drawn
between provisions by which the carrying out of
the declared decisions of the Supreme Legisla.
ture is furthered, and those which give a power
to act independently of the discretion of the Go-
vernor Genera] in Council.
Macpherson, J. — The Governor General in
Council has power by legislation to remove from
the jurisdiction of the High Court a district over
which that Court was declared by the Letters
Patent to have jurisdiction. The Governor
General in Council has no legislative power in
relation to the High Court save what is reserved
to him by Stat. 24 and •% 5 Vict., C. 104, §§9, II,
and 13. But % 9 gives the Governor General in
Council plenary powers of legislation as regards
the jurisdiction of the High Court. An Act pass-
ed' by the Governor General in Council under
Stat. 24 and 25 Vict., C. 67, and not falling
within any of the prohibitions therein con-
tained, has the same effect as an Act of Par-
liament, and the High Court has no power to
question the authority of the Governor General
in Council If satisfied that the Act is not within
any of the prohibitions of the Councils Act.
The jurisdiction of the High Court over tht
Jynteeah and Cossyah hills is taken away by
Act XXII. of 1869, which, though practically
delegation to the Lieutenant-Governor of th
legislative powers of the Governor General in
Councilisnot therefore illegal. Such delegati
is not prohibited hy any positive law.
Pir Garth, C.J., Macpherson tn&Pontifex,]}.
The power of delegation now questioned had
been exercised in many cases fora series of yc
previous to the passing of the Indian Councils
Act, and that Act (the framers of which must
have been cognizant of the course of practice;
must be taken as impliedly approving of anc
sanctioning such practice which it would other,
wise have declared illegal.
Per Garth, C.J., Atalie, Marltby, and Jackson,
J].— The High Court has power lo question the
LEGIBIATIVE POWER 07 THE GO-
VERNOR GENERAL IN COUN-
CIL— contd.
validity of the legislative Acts of the Governor
General in Council.
Per Macpherson and Pontiff*, JJ.— It has no
such power if satisfied that the Act is not within
the prohibitions of the Indian Councils Act.
rih v. Burah-.I. L. Rep. 3 Cai. 03,
1877, P. B.
Reversed On appeal — see infra.
2. Jurisdiction of High Courts— Stat.
24 and 3J Vict., C. 104— Act XXII. of 1869.]
By the terms of Stat. 24 and 25 Vict., C. 104,
of jurisdiction in any part of Her
Majesty's Indian territories by the High Courts
be subject to, and not exclusive
of, the general legislative powerof the Governor
General in Council.
of legislative authority by the Go.
1 in Council which removes any
place or territory from the jurisdiction of the
High Courts, is one expressly contemplated and
ithorized by Stat. 34 and 25 Viet., C. 104, and
24 and 25 Vict., C. 67, and by the Letters Patent
of the High Courts issued under Stat. 24 and 35
Vict., C. 104. By 3 9 of Act XXII. of 1S69, the
Lieutenant-Governor of Bengal was empowered,
from time to time, to extend, mutatis mutandis,
to the Jynteeah, Naga, and Khasi Hills, the pro-
visions contained in other sections of the Act,
whereby the administration of civil and criminal
justice within the district called the Garo Hills
was, from a date to be fixed by the Lieutenant-
Governor, to be withdrawn' (rom the jurisdiction]
of the Courts of civil and criminal justice con-
stituted by the Regulations of the Bengal Code
and the Acts of the Legislature of British India,
and to be vested in such officers as the Lieute-
nant-Governor might appoint.
Held, by a majority of the Calcutta High
Court, that as the Indian Legislature was to be
regarded as an agent or delegate, acting under
a mandate from the Imperial Parliament, which
must in all cases be executed directly by itself,
the above provisions purporting to authorize the
Lieutenant-Governor of Bengal to extend Act
XXII. of i860 to the Jynteeah, Naga, and Khasi
Hills, since they involved a delegation of legis-
lative power, were void and of no effect.
Held by the Privy Council, that the decision
of the High Court was erroneous, and rested on
a mistaken view of the powers of the Indian
Legislature, and of the nature and principles of
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DIGEST OF CASES.
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)
LEGISLATIVE POWER OP THE GO-
VERNOR GENERAL IN COUN-
CZb—centd.
legislation. The Indian Legislature has powei
expressly limited by the Act of the Imperial
Parliament which created it, and can do nothing
beyond the limits which circumscribe those
powers. But, when acting within those lim
is not in any sense an agent or delegate of the
Imperial Parliament, but has, and was intended
to have, plenary powers of legislation as large,
and of the same nature, as those of Parlia-
ment itself. When a question arises whether
the prescribed limits have been exceeded, it
roust be determined by looking to the terms of
the instrument by which, affirmatively, the le-
gislative powers were created, and by which
negatively, they are restricted. If what has been
done is legislation within the scope of the affir-
mative words which give the power, and if
it violates no express condition or restriction
by which that power is limited, it is not for
any Court of Justice to inquire further, or to
enlarge constructively those conditions and
restrictions.
Where plenary powers of legislature exist as
to particular subjects, whether in an Imperial or
in a Provincial Legislature, they may be well
exercised, either absolutely or conditionally.
Legislation conditional on the use of particular
powers, or on the exercise of a limited discretion,
entrusted by the Legislature to persons in whom
it places confidence, is no uncommon thing;
and in many circumstances it may be highly
convenient. Empress «. Burah ...I, L. Bap. 4
Cal. 179, 1878, F. C. ; L.
Rep. B L A. 178 ; L. Rep. 8
App. Ca. 888 ; 3 Cal. Rep.
197,
LEGITIMACY— Child born in Wedlock
though conceived before Marriage.
See Hindu Law— Legitimacy.
The Collector ofTrichinopolv
«. Lbkkamani L. Hop. 1.
I. A. 282-293.
— Question of— decided in Execution Pio-
Sn Execution of Decree. 9.
ABEEDOONNJSSA t>. AMBBROONISSA,
L. Kep. 4 I. A. 86 ; I. L.
Rep. 9 Cal. 887.
LEPROSY.
Set Hindu Law— Disqualification
to Inherit. 8.
An ant a e. Ramabai.,,1. L. Rep.
1 Bom. 8S4.
LESSEE.
Authority of — to bind Owner by attesting
Village Administration Paper.
See Pre-emption. 10.
CHADAMI LAL V- MUHAKAD
Baksh I. L. Rep. 1 All.
D63.
LESSEE OF JALEAR CANNOT AC-
QUIRE RIGHT OF OCCUPANCY
See Right of Occupancy. 8.
Boi.lve Sates v. Akrak Ally...
I. L. Rep. 4 Cal. 961.
LETTER •' WITHOUT PREJUDICE. "
Sue Privileged Communication. 1.
Howard v. Wilson... I. L. Rep,
4 Cal. 331, 288.
LETTERS OF ADMINISTRATION TO
ADMINISTRATOR GENERAL.
Sec Administration. 6.
LETTERS OF ADMINISTRATION
WITH WILL ANNEXED— Grant
of — may be made after Seven Days from
Testator's Death.
See Indian Succession Act X of
I860, f 258.
In the Goods of Wilson I. L.
Rep. 1 Cal. 149.
LETTERS PATENT— ALLAHABAD—
CI- io— Appeal not confined to Point of
Difference between Judge* of Division
Bench.
Set Appeal— CiviL 17.
Ram Dial v. Ram Das L L.
Rep. 1 All. 181.
1. — CI. io.—Judg mtnt— Appeal] To
allow of an appeal to the High Court of Allahabad
against the judgment of a Division Bench, there
must be such a judgment on the part of all the
judges who may constitute a Bench, as dispos-
es of the suit on appeal before it. Therefore,
where on an appeal beard before a Division
Bench, consisting of the Chief Justice and
another Judge, the Chief Justice remanded the
suit for further evidence on a particular point
D.grt^dbyGOOgle
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LETTERS PATENT — ALLAHABAD LETTERS PATENT-BOMBAY — 186S
while the other Judge was of opinion that (he
appeal should be dismissed i —
Held, that no appeal lay from the order of the
Chief Justice. Ghasi Ram t. Musamat Nuhaj
. Becvm I. L. Bep. 1 All. 31, 1878, F. B.
2. CI. 10. — Appeal — Compulation of
Prriod of Limitation— Copy of 'Judgment appealed
from.'} In computing the period of limitation
prescribed for an appeal under CI. IO of the
Letters Patent, the time requisite for obtaining
a copy of the jugdment appealed from cai
be deducted, such copy not being required,
under the rules of the Court, to be presented
with the memorandum of appeal. F.
KAMMAD Ir. pHUL KuAH I. L. Bep. 3 AIL
192, 1870, F. B.
See Limitation. 90.
Jawahir Lai. v. NarAIN Das. ..I.
L. Bep. 1 All. 844.
CI. Jl — Repealed by Implication by Act
VI. of 1874 and Act X. of 1877.
See Appeal to the Privy Council. 5.
Tetlky d. Jai Shankar I. L.
Bep. 1 All. 726.
LETTERS PATENT— BOMBAY- 1865.
CI. IS— Jurisdiction — Cause of Action— Hundi —
Consideration.') The High Courts are not
Courts of ordinary original Civil jurisdiction
over the whole of the territories of the Presiden-
cies to which they belong. Though in some
respects their original Civil jurisdiction is wider
than that of the District Courts, yet it is limited,
and there is no presumption in favour of juris-
diction beyond what is to be found expressly
conferred by the Charters of constitution.
The English decisions, as to the meaning of
the words "cause of action," on the County
Courts Act 9 and 10 Vict., C- 95- * "8, are
more in point with regard to the interpretation
of the same words in the Letters Patent, than
are those in J f iS and 19 of the Common Law
Procedure Act of 185a 05 and 16 Vict., C. 76),
al the provisions of the latter statute concern
matters of procedure, ie., they furnish a les-
cumbrous and simpler means of exercising a
jurisdiction the Courts already had, and are not
as the provisions of the English County Court!
Act and the Letters Patent of the High Court,
directed to the marking out and limiting the
jurisdiction, of a, Court.
Where a hundi had been drawn out of Bombay
on a person In Bombay, indorsed and delivered
of Bombay to one who Out of Bombay in-
qed the same and sent it to a person who in
Bombay received it, got it accepted, and pre-
ted it for payment to the drawee, by whom
ras dishonoured : — Held, that the dishonour
of the hundi by the drawee in Bombay was a
rial part of the cause of action of the Bom-
bay holder against the first indorser, and the-
leave of the Court having been obtained by the
holder to bring his suit under CI. 13 of the Let-
ters Patent, 1865, the Court had jurisdiction to
itertain the suit.
The plaintiff, as agent and banker of an
Ajmir constituent, received a hundi for collec-
tion, and on its acceptance by the drawee,
credited the Ajmir constituent in his account
with the amount of the hundi as of the date
t would become payable, reducing to that
the balance due to the plaintiff On that
account.
Held, that, as between the plaintiff and the
Ajmir constituent, the plaintiff on such credit in
count being given became a bolder for value.
Held, also, that on the dishonour of the hundi
at due date the plaintiff was justified by the usage
of shroffs in treating the Ajmir constituent as
still entitled to credit for the hundi, and in treat-
ing themselves as holders of the same for value.
Held, also, that as between the Ajmir consti-
tuent and the first indorser (the defendant), the
giving by the Ajmir constituent to the defendant
another hundi which was never presented in
Bombay for acceptance or payment, was a
consideration for the indorsement by the defen-
dant to the Ajmir constituent of the hundi
sent by the latter to the plaintiff, and sued on
by him. Suqanchand Shivdas e. Mulch asd
Joharihal. Green,] IS Bom. H. a Bep.
113, 1878.
Affirmed on appeal ... I. L. Bep,
- CI. 26 — Improper Admission of Evidence —
Power of High Court, on Case Reserved,
or Certified, to consider the Merits.
See Evidence. 18.
Rig ». Hurrihole ... L L. Bep.
10*1.80?,
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DIGEST OF CASES.
(
LETTERS PATENT— BOMBAY-1866
See Power of the High Court, on
Case Reserved or Certified,
to consider the Merit* of the
Case.
Reg. v. PitahberJina I. 1.
Rep. 2 Bom. 61.
- — * 36— Act X. of 1877, » S7S-] The pro-
visions of § 36 of the Letters Patent, that when
the Judges of a Division Bench are divided in
opinion, the opinion of the Senior Judge shall
prevail, have been superseded by ( 375 of Act
X. of 1S77 (which is extended to miscellaneous
proceedings of the nature of appeals by ( 647),
so far as regards cases to which f 575 is appli-
cable. Appaji Bhivrav v. Shivlal Kkub-
chand ..I. L. Rep. 3 Bom. 304, 1878,1". B.
S. C. under Sureties.
LETTERS PATENT — CALCUTTA —
CI. 11.
See Title Deeds— Suit for.
JUGGORNATH DoSS V. BRIJNATH
Doss. ..I. L.Rep. 4 Cal. 332.
* CI. 13 — Application to file Award.
See Suit for Land. 3.
Keli.ie -. Fra£bk...L L. Rep. 3
Cal. 145.
— — CI- la— Goods obtained in Calcutta by
Fraud in Calcutta— Pledge of— beyond
Local Limits of Jurisdiction of High Court.
See Jurisdiction. 13.
KARTIK ChURH «. GOPALKISTO ...
I. L.Rep. 3 6»L 364.
CI. 12— Suit to restrain Working of Mine
within certain Boundaries — Suit for Land.
Set Suit for Land. I.
E. [. Rv. Co. if. Bengal Coal Co.
I. L. Rep. 1 CaL 96.
a— Cl. i2~Suit for Land— Deed of Trust
giving Trustees Power of Sale of Land in
Mofussil — Suit by Creditor to have Trusts
See Suit for Land. 3.
Delhi and London Bank v.
Wordie...I. L. Bap. 1 Cal.
349.
1. CI. 1$.— A&eal from Order granting
Certificate under Act VI. of 1874.] Under Cl,
f )
- CALCUTTA -
LETTERS PATENT -
5 of the Letters Patent of the High Court at
Calcutta, no appeal lies from the order of the
Judge In the Privy Council Department granting
certificate that the case is a lit case for appeal
1 Her Majesty in Council. Mow la Buksh.
. Kishen Pertab Sahi. tfacpherson, C. J.
(Offg.), and Jackson, }...X L. Rep. 1 Cal. 103,
1875.
3. Cl. IJ. Appeal — Judgment —Deri-
en tie of several Issues,'} In a suit for the
t ruction of a will and hibbanama, on the case
ing on for settlement of issues, the Judge in
the Court below held that the hibbanama was
valid, and raised issues as to the execution
.d validity of the will. Two of the defendants
aiming under the hibbana ma appealed : — Held.
that the appeal did not lie, the decision appeal-
ed against not being a judgment or decree
which determined or affected the entire claim
of the plaintiff, but only a decision arrived at on
the settlement of issues, on the validity of a
hibbanama set up by the defendant asan answer
to part of the plaintiff's claim.
Per Garth, C.J. — The word " judgment" in
Clause 15 of the Letters Patent means a judg-
ment or decree which decides the case one way
r the other in its entirety, and does not mean a
ecision or order of an interlocutory character,
hich merely decides some isolated point, not
affecting the merits or result of the entire suit.
Per Markby, J.— The matter was more one of
convenience and procedure than of strict law.
Ebkahih v. Fuckhkunissa Beguu. Garth,
C.J., aod Markby, J...L L. Rep. 4 Cal- S31 ;
8CaLRap.811.lB78.
Cl. 16.
See Appeal— Civil. 9.
RunjitSingh e. Meherban Kobe.
I. L.Rep. 8 Cal. 663.
Cl. 26— Power of High Court, on Case
Reserved or Certified, to consider Case
on Merits.
Sec Evidence. 18.
Reg. v. Hurribolb-.-I, L.Rep.
1 Cal. 307.
See Power of the High Court, en
Case Reserved or Certified,
to consider the Merits of the
Case.
Reg. it. Pita m bur Jina.,,1. L.
Step. 9 Bom. 61.
D,gltlzed by G00gle
DIGEST OF CASES.
( W! )
LETTERS PATENT — CALCUTTA —
contd.
CI. 39-
See Act VI. of 1874, h 6.
Feda Hosskin ... L L. Bep. 1,
OaL 431
LETTERS PATENT (1S66) —
MADEAfl.
Set Juxiad iction . 18.
Collector or Sea Customs, Ma-
' DRAS, V. PUNNIAR ChITHAM-
BARAH..X L. Rep.l Had.
80.
CL 9.
See Rules of Court. 1.
In the matter ef the Petition of the
Attorneys... I. L. Rep. 1
Mad. 34.
— — CI. 15 — Appeal from Order under Admi-
nistrator Generals' Act II. of 1S74 ascer-
taining Commission parable to Adminis-
trator General, appealable.
See Administrator Generals' Act
II of 1874, s 87.
SOMASUNDARAU ChETTI «. All-
mikistrator General, ..I.
L. Hop. 1 Mad. 148.
UX LOCI CONTRACTUS.
See Contract. 17.
Oakbs&Co. v. Jackson.. .X. Jj.
Sep. 1 Had. 134.
See Jurisdiction. 7.
Mathappa Cketti «. Chbllapa
Cketti. ,X L. Bop. 1 Had.
196.
LIABILITY OF AN ADOPTED BON,
OB OP THE ESTATE IN MIS HANDS,
FOR A LOAN RAISED BY HIS MOTHER
FOP. HIS BENEFIT — Legal Obligation.]
II., a widow who, in default of issue to her
husband, was in possession of a Dcshgati Ixam,
borrowed money from the plaintiff on an ordi-
nary money bond for the purpose of paying
the Government assessment thereon. She after-
wards adopted a son (the defendant), and died,
The plaintiff sued the son to recover the money
from him personally, and also sought to make
the Deikgati Inam liable -.—Held, that neither
the defendant personally, nor the Deshgati Inam
in his hands, could be made liable because the
estate had been benefited by the loan. The
plaintiff might have secured himself by taking
LIABILITY OP AN ADOPTED SON,
OB OF THE ESTATE IN HIS
HANDS, FOB A LOAN RAISED
BY HIB MOTHER FOB HIS
BENEFIT— miM
a mortgage on the property, instead of which
he* trusted to H.'s personal security. Although it
might be that if H. had been compelled to repay
the loan, she might have recovered the amount
from the defendant, yet the defendant could not
be made liable at the suit of the plaintiff. It is
not in every case in which a man has been bene-
fited by the money of another, that an obligation
to repay that money arises. To support such
a suit there must be an obligation, express or
implied, to repay. The plaintiff's only remedy
in this case was against H.'s property (if any) in
the hands of the defendant. Gadoeppa Desai
r. Apaii JiVANRAO. Sfetvilland West, JJ ...I. L.
Bop. 8 Bom. 837, 1879.
LIABILITY OF ANCESTRAL PRO-
PERTY IN THE HANDS OF THE
HEIR FOR THE DEBTS OF THE
ANCESTOR.
See Hindu Law — Alienation of
Ancestral Property. 1. 8. 3.
4.0.
Bet Hindu Law— Undivided Fa-
mily. 3. 4. 7. 8.
See Hindu Law— Liability of An-
cestral Estate in the hands
of the Heir for the Debts of
the Ancestor.
See Sale in Execution of Decree. 10
IB.
See Limitation. 88a.
See Onus Probanda. 8.
Adurmoni Devi v. Chowdhrt
Sib Narain Kur.-.L L. Rep.
3 CaLl.
LIABILITY OP CO-SHABEBB OP A
FTJTNI TALUK- Mortgage by some
Co-Sharers to pay Quota of Rent — Pay-
ment by Mortgagee to prevent Sale for
Arrears of Zcmindary Rent.
See Co-Sharers of Futni Taluk.
MOHESH ChL'NOER *. RAM PrO-
svnno ... I. L. Rep. 4 0*1.
689.
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< 8»8 )
DIGEST OF CASES.
LIABILITY 07 EXECUTION CREDI-
TOR—To refund Purchase Money on
Eviction of Purchaser at Sale by Sheriff
under Writ of Fieri Facias on Sale being
declared Void.
Set Sheriffs Sale. I. 3.
Our ah Ally Khan v. Khojah
M0HEEOODBEN...I. L. Hep.
1 Cal. 66 ; I. L. Rep. 8 Cal.
806; L. Rep. 61. A. 116.
LIABILITY OF EXECUTION CREDI-
TOR IN DAMAGES FOR WRONGFUL
SEIZURE— Attachment of Properly of Third Per-
son— Loss of Properly while under Attachment —
Measure of Damages."] Certain u nth reshed rice,
the property of the plaintiff, was wrongfully at-
tached by the defendants under a money decree
obtained by them against their debtor D. Th<
rice, while in custody of a bailiff of the Court
nasir, in the same place in which it had been
attached, was clandestinely threshed and carried
off by thieves, who left the straw. The attach,
ment had been made under a special warrant
naming the rice, which warrant was founded on
a darkhasl presented to the Court by the defen-
dants, and which prayed, not the attachment of
the moveable property at large of the judgment-
debtor, but of the rice in particular as his pro.
perty.
In a suit brought by the plaintiff to recoverthe
value of the unthreshed rice from the defendants,
both the lower Courts dismissed the plaintiff's
claim, on the ground that the theft was not the
immediate probable result of the attachment'
and that the conduct of the defendant-had not in
any way conduced to the loss of the rice.
Held, by the High Court, reversing the decrees
of the lower Courts, that the defendants were
liable. When the wrongful seizure i
at the special instance of the defendants, the
plaintiff's cause of action was completi
was independent of the subsequent occui
The theft might have rendered the defendants
unable to restore the rice in specie, but could
not purge, and was no satisfaction of the pre-
vious trespass, which rendered the defendants
liable for the lull value of the rice.
The measure of damages should be the value
of the rice as it stood at the time of the wrong-
ful attachment made at the instance of the defen.
dants. The plaintiff was not bound to accept
the straw left by the thieves when they stole
the rice, severed as that straw had been from the
LIABILITY OF EXECUTION CREDI-
TOR IN DAMAGES FOR WRONG-
FUL SEIZURE -contd.
ice. If, however, he did accept the straw, that
ircumstance should be received in mitigation of
damages, and the value of the straw as it stood
\t the time of such acceptance (if any) should
be deducted from the value of the rice and straw
when unsevered from each other at the time of
the laying on of the attachment.
Mussamat Subjan Bibi v. Sheikh Sariatulla
j Beng. L. Rep. 413) commented on and par-
ally dissented from. [See Table of Cases Revers-
ed, Overruled, Dissented from, and Commented
on.] Go ma Mahad Patilb.Gokaldas Khim/i.
Westropp,C]., and Kemball, J...L L. Rep 3
Bom. 74, 1878.
LIABILITY OF GOVERNMENT FOR
ACTS DONE IN EXERCISE OF
SOVEREIGN POWERS.
See Right to Sue. ?.
Noaiso Chunder Oev v. The
, Secretary of State for
India. ..I. L. Rep. 1 Cal. 11.
LIABILITY OF HEIR FOB DEBTS OF
ANCESTOR.
See Hindu Law— Alienation of
Ancestral Property. 1. 3. 3,
4.6.
Set Hindu Law— Undivided Fami.
I7. 3. 4. 7. 8.
See Hindu Law -Liability of Art-
eeetral Eatate in the handa
of the Heir for the Debts of
toe Ancestor.
See Sale in Execution of Decree.
10. 16.
See Limitation. 38a.
LIABILITY OF HUSBAND ON CON-
TRACTS ENTERED INTO BY
WTFE IN COURSE OF A SEPA.
RATE BUSINESS CARRIED ON
BY WIFE ALONE.
See Married Woman's Property
Act III. of 1874. 1.
;- Braham L L.
Rep. 4 Cal. 110.
D.grt^dbyGOOgle
{ 836 )
DIGEST OF CASES.
LIABILITY OF INFANT FOE DEBTS
INCURRED BY GUARDIAN IN
ANCESTRAL TRADE CARRIED
ON FOR BENEFIT OF INFANT.
See Hindu Law— Ancestral Trade.
JOYKISTO CoWAR fl. NlTTYANUND
Nunov ..L L. Rep. 3 Cal
738.
LIABILITY OF LAHBARDAB TO CO-
SHARER FOR PROFiTS-<ici XVIII. of
1873, § log— Land in a Mahal Held by the Lam-
bardaras " Khud-Kosht" at 4 tfomiHal ffh»(.]
The land in a certain Mahal Was recorded as
heldbyif.,the]ambardar,as " khud-kasht" (i.e.,
land which the proprietor cultivates himself),
at a certain nominal rent. For two years in
succession M. sub-let such land, in part or in
whole, for a less amount than such nominal
rental ; the third year .the land lay fallow. The
plaintiffs sued as co-shaxers In the mahal to re-
cover from M. their share of the profits on account
of such years- M. set up as a defence that there
were no profits, but, on the contrary, a small
loss. The lower Courts held M. answerable for
the rental recorded .—Held, that it was doubtful
whether the provisions of j 209 of Act XV11I.
of f 873 were applicable in the present case, and
that, even if such provisions were applicable,
the lower Courts having neither found that more
was realized from the land than had been ac-
counted for by M., nor that the failure to realize
more was owing to gross negligence or miscon-
duct on his part, the decree of tho lower Courts
could not be sustained. Manual Khan t. Mum-
TAzAli. Pearson and Gidfield, JJ...L L. Rep,
2 All. 239, 1879.
LIABILITY OF LANS PURCHASED
FROM HINDU DEVISEE FOR
DEBTS OF TESTATOR.
See Limitation. 38a.
Greendbr Chunder v. Mackin-
tosh L L. Rep. 4 Cal.
897.
LIABILITY OF MASTER FOR THE
WRONGFUL ACTS OF HIS SER-
VANT.
See Principal and Agent. 1.
Bombay Burmah Trading Cor-
poration t. MlRZAH M a HO-
MED Ally...LL. Rep. 4 Cal.
llfl;S. C. L. Rep.5 L A.
LIABILITY OF MORTGAGEE IN POS-
SESSION TO PAY GOVERNMENT
See Kabul ay at dar Shot.
Krishnaji p. RamchanDra ..I. fj.
Rep. 1 Bom. 70.
LIABILITY OF MORTGAGEE IN POS-
SESSION OF INDIGO FACTORY
FOR DEBTS OF FACTORY.
See Indigo Factories. 1.
Hohohuk Doss v. McNaghtkm ...
I. L. Rep. 3 Cal. 231.
LIABILITY TO PAY RENT— ADMIS-
SION OF, BY TEN ANT- Non-Pay-
ment by Occupancy Ryot for more than "
Twelve Years gives him no Title.
See Limitat:
Pores h Nar,
21.
Chunder Talukdar I.L.
Rep. 4 Cal. 661.
LIABILITY OF PRINCIPAL FOR
THE WRONGFUL ACT OF HIS
AGENT. 1.
Set Principal and Agent. 1.
Bombay Burmah Trading Com.
fany. Limited, v. Mirza Ma-
homed Ally Sherazee ...
L. Rep. 0 1. A. ISO ; S. C.
I. L. Rep. 4 Cal. 116.
UtaBlLlTYOFPROPERTY ON WHICH
DUTY HAS BEEN PAID IN ENG-
LAND, TO PAY DUTYIN INDIA.
See Administration. 4.
In the Goods of Murch L L.
Rep. 4 Cal. 725.
See Probate Duty. 2.
In the Goods 0/ GLADSTONE. ..I. L.
Rep. 1 Cal. lea,
LIABILITY OF PURCHASER AT EXE-
CUTION SALE FOB GOVERN-
MENT REVENUE FALLING
DUE BETWEEN SALE AND
CONFIRMATION.
See Sale in Execution of Decree. 3,
I. L Rep. SCal. 141.
DigitlzSdbvGoogle
( 837 )
DIGEST OF CASES.
( «88 >
LIABILITY OF SHARE OP A NEXT OF
KIN OF AN INTESTATE FOB A
TIME-BARKED DEBT DUE TO
INTESTATE.
5« Administration. 1.
DhANJIBHAI V. NAVAZBAE...I. L.
Bop. 2 Bom. 75.
LIABILITY OF SON FOB THE DEBTS
OF HIS FATHEB.
See Hindu Law— Alienation of An-
cestral Property. 1 to 5.
See Hindu Law — Undivided Fa-
mily. 3. 4. 7.8.
See Hindu Law — Liability of An-
cestral Estate in the hands
of the Heir for the Debts of
the Ancestor.
See Limitation- 38a.
See Sale in Execution of Decree.
10.16.
LIABILITY OF SON POB DEBTS OF
FATHER,
See Onus Proband!. 8.
ADi.rKMOf.-i Devi «. Chowdhry
Sib Narain Kurt. ..I. L. Rep.
3 Cal. I.
LIABILITY OP BTB ANGER TO THE
RECORD FOB COSTS OF SUIT.
See Champerty. 3.
Rah Coomar -„■. Chunder Canto.
L. Rep. 4 I. A. 23; I. L.
Bep. 2 Cal. 233.
LIABILITY OP TENANT FOB BENT
DUE BY FORMER TENANT.
See Landlord and Tenant. 6.
Rash Behary si Peary Motrin...
I. L. Rep. 4 Cal. 846.
LIABILITY OF TENURE FOB RENT
DUE BY FORMER TENANT.
See Landlord and Tenant. 6.
Rash Behary v. Peary Mohun...
I. L. Rep. 4 Cal. 346.
LIABILITY OF UNDIVIDED ANCES-
TRAL PROPERTY FOB THE SE-
PARATE DEBT OF A DECEAS-
ED COPARCENER IN AN UN-
DIVIDED HINDU FAMILY.
See Hindu Law— Undivided Fa-
mily. 0.
Nabsihbhat ». Chknapa..I. L.
Rep. 2 Bom. 470.
65
LIABILITY OF UNDIVIDED HINDU
FOB DEBTS OF A DECEASED
BROTHER.
Set Hindu Law— Undivided Fa-
mily. 8.
NARSINBHAT p. CllENAPA...L L,
Rep. 2 Bom. 479.
LIABILITY OF UNDIVIDED SHARE
IN ANCEBTBAL PROPERTY OF
MEMBER OF UNDIVIDED HIN-
DU FAMILY TO ATTACHMENT
AND SALE IN EXECUTION OF
See Bombay Act V. of 1862.
Ardasir*. Muse. ..I. L. Rep. 1
• Bom. 601.
See Civil Procedure Code, Act
VIII. of 1850, § 269.
Kalapa o. Venkatesk.-.I. L.
Bep. 2 Bom. 676.
5*i? Hindu Law — Alienation of
Ancestral Property. 1 to 5.
Bhikan Das v. Pura...L L. Rep.
2 All. 141.
GlRDHARBE I.AI. V. KANTOO LaL.
L. Bep. 1 I. A. 331; 14
Bong. L. Bep. 187.
Musst. Pkoolbas Koonwar w.
Lalla Jogeshur Sahoy.L.
Rep. 3 L A. 7 ; I. L. Rep.
1 Cal. 226.
Suraj Ban-si Kobr v. Sheo Pen-
shad Singh. ..L. Rep. 6 1. A.
88.
Jallidar Singh e. Rah Lal...
1 L. Rep. 4 Cal. 723.
See Hindu Law— Liability of An.
cestral Estate in the hands
of the Heir for the Debts of
the Ancestor.
Narrayan o. Naroo ...I. L. Rep.
1 Bom. 263.
Set Hindu Law— Undivided Fami-
ly. 3. 4.7. 8.
Dbendayal Lal e. Jugdebp Na-
RAINSlNGH...L.Bep.4I.A.
247 ; I. L. Bep. SCaL 198.
Rai Narain Das«. Nowhit Lal.
I. L. Rep. 4 Cal. 809.
Lachmi Dai Koori •■ Ashan
Singh I. L. Rep. 2 Cal.
213.
DiQifzed by Google
( 8DB )
DIGEST Of CASES.
LIABILITY OP UNDIVIDED SHARE
IN ANCESTRAL PROPERTY OF
MEMBER OP UNDIVIDED HIN-
DU FAMILY TO ATTACHMENT
AND SALE IN EXECUTION OF
DECREE— contd.
Babaji v. Vasadeo.,.1. L. Rep. 1
Bom. 90.
Set Limitation. 38a.
Gkeeniiek (Thunder Ghose v
Mackintosh... I. L. Rep. 4
Cal. 8B7-
Set Onus Proband!. 8.
Adurmoni Devi b- Ckowdhry Sib
Narain Kuk.,.1. L. Rep. 3
Cal. 1.
Set Bale in Execution of Decree. 10.
IS.
Venkatarammayyan v. Venka-
TASUBBRAHAN1A...L II. Hep. 1
LIABILITY OF UNDIVIDED SHARE
OP DECEASED MEMBER OF
UNDIVIDED HINDU FAMILY
GOVERNED BY MTTAKSHARA
LAW FOR HIS DEBTS, UNDER
DECREES AGAINST HIS WI-
DOWS AS HIS REPRESENTA-
TIVES.
See Hindu Law— Alienation of
Ancestral Estate. 3.
MUSST. PHOOLBAS KOONWAR
La LI. a Jogeshur Sahoy.
L. Rep. SI. A. 7; I.
L. Rep. 1 Cal. 926.
LIABILITY) OF ZEMINDAR FOR
DAMAGE DONE BY TANKS.
See Tanks
Madras Railway Co. e. Zemin-
dar of Carvatknagarun...L.
Rep. 1 I. A. 364.
LIBEL— Injunction to restrain a.
See Injunction. 3.
Shepherd o. The Trustees or
the Port of Bombay.. I. L.
Rep.l Bom. 133,
1. Publication — Privilege— Practice—
Coats.] The Trustees for the Port of Bombay,
who ire, under the provisions of their Act of
Incorporation (Bombay Act I. of 1873), bound
to keep minutes of their proceedings and rcsolu.
LD3EL-«raj.
id to forward copies oi such minutes to
the Secretary to the Local Government, passed,
relation to the hiring by them to the plaintiff
of one of their steamers, the following resolu-
tion :— "Mr. Shepherd's (the plaintiff's) offer of
Rs. 520 in full of all claims should be accepted,
but any further transactions with him should be
avoided if possible." Copies of this resolution,
made by clerks in the employ of the Trustees,
were recorded in two books kept in the office of
the Trustees ; and other copies, also made by
such clerks, were forwarded to the Local Go-
vernment and to the plaintiff himself.
The plaintiff alleged in his plaint that the
words of the resolution meant "that the plaintiff
lfair dealer, and a person with whom
ordinary mercantile affairs, and especially the
business of the defendants, could not safely be
transacted, and should, therefore, be avoided."
Held, 1st— That it is for the plaintiff, in a
suit for libel, to establish that the words in ques-
tion did, in fact, mean what he alleges, and not
merely that they were capable of bearing such
meaning ; and where the libel or slander is couch-
ed in ordinary English words not words of art,
or slang, it is not admissible to ask witnesses
in what sense they understood them ; and that
though the words of the resolution did not, in
the opinion of the Court, bear the meaning
ascribed to them by the plaintiff, yet they did,
apart from the question whether they were
justified, and whether the publication of them
was privileged, amount to a libel in law.
2nd — That the sending of written defamatory
matter to the person himself who is affected by
it, though it may form a ground for criminal
proceedings, is, so far as a civil action for
damages is concerned, protected, and does
not constitute a cause of action ; and the only
acts of publication alleged in the plaint were
the transmission to the plaintiff of the resolu-
tion j yet the issue having been raised generally
as to the fact of publication, admitted of evidence
of acts of publication other than those alleged
in the plaint, and that the transmission of the
resolution in question to the Secretary to Go-
vernment constituted a publication of the libel.
yd— Though from the publication of defa-
matory matter, false in factt the law will
n the
of the publication are such as to
exclude or rebut such presumption, then such
presumption is excluded, and in order that
D,„i„.db»Googlc
DIGEST OF CASES.
LIBEL— tenld.
such publication should constitute an actionable
wrong, express malice must be proved.
A statement fairly made by a person bond
fide, i.t., with an honest befiei in its truth,—
whether the statement in itself be true or False,
—upon any subject-matter in which such person
has an interest, or in reference to which he has
a duly, and in discharge of some public or
private duty, legal or moral, or in the conduct
of his own affairs, in matters where hb interests
are concerned, is privileged if made to a person
having a corresponding interest or duty, and if
fairly warranted by any reasonable occasion or
exigency, and honestly made, though it contain
defamatory matter.
If the statement be true, that is a defence to
* suit for damages, independent of any question
of privilege. The publication by the defendants
of the resolution in question, so fas as it con-
sisted of sending acopy of them to Government,
came within these principles and was privileged ;
and that there was no evidence in the case from
which the existence, on the Trustees' part, of
express malice could be inferred ; the burden of
proving the existence of such express malice
being on the plaintiff.
4<A — That the recording of such resolutions
by the Trustees, being in obedience to the pro-
visions of their Act, was privileged, as was also
the causing them to be copied for . record by
clerks in the employ of the Trustees {if in itself
a publication).
5/4- -That the sending of the resolution to the
plaintiff himself being a privileged communica-
tion, the incidental but necessary co-operation of
the Secretary in making a draft of the letters
forwarding them, and of the office clerks in fair-
copying the Secretary's draft letters, was covered
by the same privilege.
bth —On the evidence, that the acts and con-
duct of the plaintiff justified the defendants in
passing the resolutions.
■jth— That the plaintiff having alleged in his
plaint express malice and want of bond fides.
and thereby compelled the defendants to go into
the defence of justification, on which they had
succeeded, the plaintiff must pay the costs of
the suit. Shepherd v. The Trustees or the
Port of Bombay. Gretn, J J_ L. Rep. 1
Bom. 477, 1876.
8. —— Qualified Privilege.] Plaintiffs and
defendants were members of two firms, each
creditors of an absconded debtor, oue Bavachi
LIBEL— eontd.
Kunhl Pakhi. The plaintiffs' firm brought a
suit to recover the sum alleged to be due t»
them by tfte said Bavachi Kunhi Pakhi ; and,
pending that suit, the defendants' firm presented
a petition to the Court which contained the
statements complained of, which were principally
to the effect that the plaintiffs had prejudiced
the petitioners by suing the said Bavachi Kunhi
Pakhi for sums greatly in excess of their just
claims against him. The Judge found that
there was no malice in fact, but that the state-
ments were unUue and calculated to damage,
and he accordingly gave a decree to the plain-
tiffs with damages.
Held on appeal, reversing the decision of the
lower Court, that as the defendants were creditors
n absconded debtor, and deeply interested in
ing that his estate was not swept off in satis-
ion of an excessive claim made by the ear-
t suitor, they in presenting a petition pointing
out what they, considered suspicious elements
n the plaintiff's claim against such debtor, were
it all events entitled to the qualified privilege of
persons acting in good faith, and making commu-
nications with a fair and reasonable purpose of
protecting their own interests. Hinde v.
Bavdry. Morgan, C.J., and Hollamay, J...L I*.
Rep. 3 Had. 13, 1876.
LICENSE TOR SALE OF LIQUORS.
See Illicit Sale of Liquors.
Empress v. Shy hour... I. L. Rep.
1 All. 680.
Empress b Dharawdas Ibid.
686.
Empress *. Mahindka Lac.. ..Ibid.
638.
LIEN— On Bond.
See Mortgage 38.
Hassoon Arka v- Jawadoonissa.
L L. Rep. 4 Cal. 29.
For Costs— Solicitor's.
See Mortgage. 38.
Brijnath Dass v. Juggernath
Dass L L. Rep. 4 Cal.
740.
— - By Custom on Tndigo Factory.
See Indigo Factories. 1.
MoNOHL-R D05SV. McNAOHTBN...
I. L. Rep. 8 Oal. 881.
Of Manager of West India Estates.
See Mortgage. 28.
MoRAN V MlTTtl BtBEB I. L.
Rep. 8 Cat OB.
D.grt^dbyGOOgle-
DIGEST OF CASES.
UXN—eentJ.
Of Mortgagee on Sale of Mortgagor's In-
terest in Execution of Money Decree
obtained by Mortgagor.
See Mortgage. 6.
TL'KAKAM «, RamCHANDRA ..I. L.
Bep. 1 Bom. 814.
See Sheriffa Sale. 3.
Bhuggobutty v- Shamachurn...
I. L. Bep. 1 Cal. S3?.
Salvage Lien.
Set Mortgage. 22.
Mohan p. Mittu Bibee I. L.
Bep. 2 Cal. 06.
— Solicitor's — for Costs.
See Mortgage. 36.
Brijnath Dass v. Juggernath
Dam L L. Bep. 4 Cal.
743.
■^—Vendor's— for Unpaid Purchase Money.
See Vendor and Purchaser. 1,
Tkikalkav e. Tub Municipal
Com mission R rs of Hubli...
L L. Bep. 8 Bom. 172.
1, UnautMorited Sale by Natural Guat
dian of Minor— Bombay Minors Act XX. of 1864
— Lien — Repayment of Money due tm a Mortgage.
The plaintiff, as purchaser at a Court sale in
execution of a decree obtained against the origi-
nal owner, sued to recover land in the possession
of the defendant The defendant alleged that
he had bought the land from the widow of the
previous owner, by whom it had been mortgag-
ed, and that he (the defendant) had paid off the
mortgage. The previous owner had left a minor
son. The lower Courts passed a decree for the
plaintiff, on the ground that the sale by the
widow was invalid, she not having obtained a
certificate of administration to her deceased
husband, and having no authority under Act
XX. Of 1864 :—
Held, that though the sale by the widow to
the defendant was invalid, yet the defendant
had a lien on the land for the amount of the mort-
gage debt he had paid, and that the plaintiff
could not set aside the sale to the defendant
without refunding the amount secured by such
lien. Bai Kesar v. Bat Ganga (8 Bom. H. C.
Rep. A. C. J. 31) followed. Kuvarji d- Mom
HaeiDas. Melvill und Krmbalt, JJ ...I. L. Bep.
8 Bom. 234, 1878.
3. Suit to recover Title Deeds.] In
otder that a defendant may set up his right of
lien as a defence, he must be prepared to show,
LIEN— cant J.
that at the commencement of the suit he was pre-
pared to give up the property over which he
claimed the lien, on being paid the amount due
him, and therefore he cannot plead his right
of lien when he denies and contests the plain-
tiff's title to the property, Juggernath Doss
b. BftljNATH Doss. Garth, C.J., and Markby, J.
I. L Bep. 4 Cal. 328,
1878.
LIGHT AND AIR— Obstruction to.
See Mandatory Injunction. 1.
JXmnadas t. Atmaram.-.L Ik
Bep. 2 Bom. 133.
Easement— Appropriation.} The plaintiff and
defendant, being owners of two adjoining houses
with a common party wall between them, the
former placed a window frame in an aperture in
an upward extension of his part of the wall which
he had erected eight years before suit, and the
defendant thereupon raised the wait on hei side,
so as to cut off the supply of light and air which
the plaintiff used to receive before and after
placing the window frame. Beld, that there had
been no appropriation by the plaintiff of the
light and air for the statutory period (20 years)
creating in him a right of easement, and entitling
him to relief against the inconvenience caused
by the defendant's act. Sarubhai v Bapu
NarhaR Somoni. West and Pinhey, JJ...I. L-
Bep. 3 Bom. 660, 1878.
LIMITATION- Accounts.
See Limitation. 34, 64.
Acts of — Construction.
See Const ruction of Statute. 3.
— — Acknowledgment of Debt.
See Acknowledgment of Debt.
Acknowledgment of Mortgagor's Title.
See Acknowledgment of Mortga-
gor's Title.
5n Construction of Statute. 8.
Umiaskankar t>. Chhotalal-.X
L. Bep 1 Bom. 19.
Acts of Ownership — Title,
See Limitation. 7.
Added Parties.
See Assignment of Mortgage.
Ganpat v. Adarji...I. L. Rep.
8 Bom. 312.
See Onus Proband!. 2.
Abdul v. Manji...L L. Bep. 1
Bom. 299.
Adjective and Substantive Law.
See Limitation. 81.
DigitlzSdbvGoogle
DIGEST OF CASES,
LIMITATION- ™.<rf.
- Advene Possession,
See the Index heading Advcree Poo-
— For Appeal from Acquittal.
Ste Appeal— Criminal, 6,
Empress r-JvADtriLA... I. L. Bep.
2 Cal. 436.
— For Appeal — Date of Presentation of Origi-
nal Memorandnm-
See Appeal— Civil. 14.
JAGAN NATH *. JLALMAN..X L.
Rep . 1 All. 360.
— For Appeal — Exclusion of Time necessary
to obtain Copy of Decree.
See Letters Patent (Allahabad)
oL 10. *
Fazalv. Phui. Kuar...L L. Rep.
9 All. 192.
See Limitation. 90.
— For Application for Assessment of Mesne
Profits.
Set Civil Procedure Code, Act VUL
of 1850, $ 197. 1.
DlLDAR HoSSBIN V. MuJEEDUN-
NissA I. L. Rep. 4 Cal.
639.
— For an Application by an Attorney under
Rule 149 of the Common Law Rules of
Supreme Court.
See Attorney and Client. 1.
Aba Ismail h. Aba Thara.,,1. L.
Bep. 1 Bom. SOS.
— For Application by Representative of De-
ceased Judgement Creditor to continue
Execution Proceedings commenced by
See Limitation. 95.
— For Application for Restitution by Person
dispossessed of Property.
See Limitation. 68.
-Calculation of Period of — as to Parties
Added to Suit.
Sec Assignment of Mortgago. I.
Gahpat v. Adabji...!. L. Rep. 8
Bom. 318.
See Onus Proband!. 9.
Abdul «. Manji.X L. Hep. 1
Bom. 398.
See Co-Bharera of Land. 4.
Boydomath r. Grish ChUnder.
L L. Rep. 3 Cal. 36.
LIinTATIOSr-^nW.
- Computation according to English Calen-
dar.
See Bengal Act VUL of 1869, J 30.
1.
Mahomed Elahee Buksh v.
BrOJO KlSHORE SBN...I. L.
Bep. 4 Cal. 497.
- Computation of Period of— Deduction of
Time occupied in Unsuccessful Enhance-
ment Suit, in Suit for Arrears of Rent at
Admitted Rate, not allowed.
See Limitation, 9.
- Computation of Period of— Deduction of
Time occupied in Unsuccessful Suit for
Khas Possession, in Suit for Arrears of
Rent, not allowed.
See Limitation, 10.
- Computation of Period of— Deduction of
Time occupied in prosecuting Suits in
Courts without Jurisdiction — Suits under
Act XVIII. of 1873.
See Limitation. 39.
- Computation of Period of — Deduction of
Time occupied by Proceedings in Wrong
Court.
See Limitation, 41.
- Computation of Period of — Deduction of
Time occupied by Former Suit,
See Limitation. 91.
- Computation of Period of— for Execution
of Decree— Exclusion of Date of Previous
Application for Execution.
See Limitation. 83.
- Computation of Period of— for Execution
of Decree — Exclusion of Time occupied
in seeking Execution in Court without
Jurisdiction.
See Limitation. 40.
- Computation of Period of — for Petition for
Leave to appeal to Privy Council— Ex-
clusion of Time necessary to obtain Copy
of Judgment.
See Limitation. 90.
See Letters Patent (Allahabad), CI.
10.3.
Fazal Mahomed v. Phul Kuar...
I. L. Bep. 9 All. 193.
- Computation of Period of— to Suit com-
menced in Fermi Pauperis but continued
in Ordinary Form.
See Limitation. 37.
D,gltlzed by G00gle
DIGEST OF CASES.
LIMITATION-™^,*.
Sit Petition for Leave to Bu» ii
Forma Pauperis. I. 3.
Skinned c Okde.X L. Bep. 1
All. 830; L.Itep. CI. A.
136.
- Confiscation by Government of House
Lucknow — Abandonment of Confisca
—Ejectment Suit— Defendant in Posses-
sion before Confiscation.
Set Confiscation in Oudh. 2.
Prince Mirza Jehan d. Nawab
Assut Bahu.-L. Sep. 6 I.
A. 76 j L L. Bep. 4 Oil.
727.
- Custom cannot override — Act.
See
.2.
pied by Former
Set Custom. 3.
Mohanlal ». Amratlal L L.
Bep. 3 Bom. 174.
- Deduction of Time occupied by Proceedings
in Wrong Court.
5m Limitation. 41.
- Deduction of Time occupied in Prosecut-
ing Suits under Act XVIII. of 1873 in '
Court without Jurisdictio:
See limitation. 30.
- Deduction of Time occi
Suit.
Set Limitation. 01.
— Deduction of Time occupied in Unsuccess-
ful Enhancement Suit, in Suit for Arrears
of Rent at admitted Rate, not allowed.
See Limitation. 0.
— Deduction of Time occupied in Unsuccess-
ful Suit for Khai Possession, in Suit for.
Arrears of Rent, not allowed.
See Limitation. 10.
— Dower — Unsuccessful Application for
Leave to sue in FormA Pauperis.
Set Hahomedan Law— Dower. 1.
Ranee Khajooroonissa i>. Ranei
Ryebsoonissa L. Rep. 2
L A. 236.
u Churn b. Tar in by Churn.
I. L. Bep. 1 CaL 422.
UMITATION-ronU.
■ Ease me nt— Projecting Eaves — Acquisition
of Right to—by 30 Years' User.
See Easement. 2.
Mohanlal 11. Amratlal.. I. L.
Bep. 3 Bom. 174.
- Easement — Riparian Owners— Right to
have Drainage Water flow in Usual
See Easement. 3.
SUBBRAMANIYA B. Ra II AC H ANOKA.
I. L. Bep. 1 Had. 335.
- For Execution of Decree— Acknowledg-
ment of Time-barred Decree by J udg-
ment- Debtor.
See Limitation. 43. 43. 44.
- For Execution of Decree— Application
under § 285 of Act VIII. of 1859.
See Limitation. 77.
- For Execution of Decree— Application to
Enforce or Keep in Force Decrees or
Orders.
See Limitation. 60 to 80.
- For Execution of Decree — Application
(Informal) to enforce or keep is force the
See Limitation, 80.
- For Execution of Decree — Application for
Possession by Purchaser at Execution
Sale— Certificate of Sale.
See Limitation. 06.
-For Execution of Decree— " Applying to
enforce a Decree" — Application tiwipliti-
ftr " to keep the Decree in force."
See Limitation. 83. 85. 88.
- For Execution of Decree — Application for
Transfer of Decree for Execution.
See Execution of Decree. 18.
Collins •, Mown Baksh...I. L.
Bep. 2 AIL 384.
- For Execution of Decree for Arrears of
Rent.
Sec Bent;. Act VLU. of I860, 5 SB.
GoLOKEMONBY V. MOKESK Chun
der L L. Bep. 8 CaL
547.
- For Execution of Decree Barred by Act
XIV- of 1859 — Application for Execution
made after Act IX. of 1871 came into force.
See Limitation. 80.
D,gltlzed by G00gle
DIGEST OF CASES.
Z.IMITATIOH— eontd.
— For Execution of Decree — Compromis
Decree — Instalments paid under Subse-
quent Application for Execution i
than three Years after Decree.
Sec Limitation, fi.
— For Execution of Decree — " Date of Ap-
plying."
See Limitation. 78,
— For Execution of Decree — Decree in Fa-
vour of Firm in Name of Agent — Appli-
cation for Execution by Agent succeeding
Agent named in Decree.
See Execution of Decree. 13.
Lachman liiai v- Pathi Ram. ..I.
L. Bep. 1 AU. 610.
— For Execution of Decree — Deposit of Pro-
perty in lieu of Security, on Stay of E
perty.
See Execution of Decree. 4,
Shbo Gholah Sahah » Ra
HirssAiN...I.L,Bep.4Cal.6.
— For Execution of Decree — Exclusio
Day of last preceding Application.
See Limitation. 82.
— For Execution of Decree — Exclusion of
Time occupied in Unsuccessful Attempts
to obtain Execution in Court without
Jurisdiction.
See Limitation. 40.
— For Execution of Decree — Execution Pro
ceedings Struck off File — Subsequen
Application, more than Three Years after
previous One, in substance to continue
previousProceedings.
See Limitation. 73. 74. BO. 86.
— For Execution of Decree — Ex-parte Decre>
— Appeal from Order refusing to se
See Limitation. 87.
— For Execution of Ex-parte Decree.
See Limitation. 67.
— For Execution of Final Decree of Appel-
late Court.
See Limitation. 76.
— For Execution of Decree in Force at
Time of Passing of Act XIV. of i8jc
See Limitation. 36.
— For Execution of Decree in Force when
Act IX. of 1871 came into operation— ■
Proceedings sufficient to bar Limits
undtr Act XIV. of 1859, pending till 30th
LlMITATION-c^frf.
September 1871 — informal Application on
30th September 1871, more than Three
Years after last preceding Application.
See Limitation, 70.
— For Execution of Decree in Force before
Act IX. of 1S71 came into operation.
See Limitation. 81. 84.
— For Execution of Decree — Interruption of
Proceedings by Intervenor — Suit,
See Limitation. 74.
— For Execution of Decree-^-Joint Decree —
Application for Partial Execution.
See Limitation. 75.
— For Execution of Decree or Order of High
Court on Special Appeal.
See Limitation. 69. 76.
— For Execution of Decree for Partition.
See Decree for Partition.
Sheikh Khoorshed H ossein v.
Nubek Patina... L L. Bep.
3 Cal. 561.
— For Execution of Decree Payable by In-
stall
Sm Limitation, 71. 71a. 73.
- For Execution of Decree— Power of Court
on Presentation of Application for— to con-
sider whether Execution barred at Date
of Previous Application, notwithstanding
Notices issued.
See Limitation. 84.
- For Execution of Decree on Specially
Registered Bond,
See Appeal— Civil. 18.
WlLAYAT-UN-NlSSA V. NAJIB-UM.
Nissa I. L. Bep. 1 All.
S83.
See Limitation. 79.
- Expiration of Period of — on Close Holi-
day— Presentation of Plaint next Court
Day.
See Limitation, 6, 13.
- Payment of Interest as such.
See Limitation. 45, 46. 47.
- For Petition for Leave to appeal to th«
Privy Council — Exclusion of Time r*.
quired to obtain Copy of Judgment.
See Limitation. 90.
- Plea of— first raised after Remand on
Special Appeal.
Sn Limitation. 3.
Digitized byGOO^Ie
DIGEST OF CASES.
LIMITATION- -contd.
- To Right to Resume Grant in lieu of Main-
Sei Limitation. 8.
- To Right to Resume or Assess Rent-free
Land.
See Resumption. 8.
KevAHt. Talookdaree Settle-
ment Officer... I. L. Rep.
1 Bom. 586.
- To Suit for an Account of Profits obtained
by infringement of Patent.
Set Limitation. SO.
- To Suit for Arrears of Maintenance.
See Hindu Lav— Maintenance of
Widow. 4.
Jiviv. Ramji.I. L.Rep. 3 Bom.
807.
- To Suit for Arrears of Maintenance under
Will.
Ste Limitation. 83.
- To Suit for Arrears of Rent— Deduction of
Time occupied in Unsuccessful Enhance-
ment Suit not allowed.
See limitation. 9.
- To Suit for Arrears of Rent— Deduction
of Time occupied in unsuccessful Suit
for Kkas Possession not allowed.
See Limitation. 10.
- To Suit for Arrears of Rent— Eipirat ion
of Period of Limitation on Close Holiday
—Presentation of Plaint next Court Day
See Limitation. 6. 18.
- To Suit for Arrears of Rent— Payment
into Court.
Set Bengal Act VIII. of 1868,
fSL
Ram Sunkar b. BivCh under ...I.
L. Rep. 4. Cal. 714.
- To Suit to Avoid an Under-Tenure.
Se» Sale of Under-Tenure. 3.
UNNODA P. MOTHURA I. L.
Hep. 4 Cal. 860.
- To Suit on Bond Barred by Act XIV. of
1859 — Revival of Right to sue — Payment
of Interest.
See Limitation. 45. 46.
- To Suit on Bond Payable by Instalments
iVf Limitation. 34. 30.
LEHTATIOM-coBfJ.
-To Suit Brought after Act IX. of 1871
came into force on Cause of Action Barred
by Act XIV. of 1859.
See Limitation. 15. 16. 17.
See Hindu Law— Maintenance of
Widow. 6.
Krishna Mohun v Okhiluoneb.
I. L. Rep. 8 Cal. 831.
— To Suit Brought after Act IX. of 1871
came into force on Cause of Action Not
Barred by Act XIV. of 1859.
See Limitation 1.
— To Suit to Cancel Under-Tenure.
S/e Sale of Under-Tenure. 2.
Unnoda Churn ». Mothcra
Nath LL.Bep.4 Cal.
860.
— To Suit on Cause of Action Barred by Act
XIV. of 1859— Revival of Right to Sue-
Payment of Interest.
Set Limitation. 46. 46. 47.
— To Suit for Contribution.
Set Limitation. 60.
— To Suit by Co-Sharer of Mahal for Share
of Profits.
See Act XVIII. of 1673, § 94. 1.
Bhikhah Khan a. Ratan Kuar..
L L. Sep. 1 All. SIS.
— To Suit for Costs.
See Limitation. 67.
— To Suit for Damages for Breach of Cove-
See Registration. 28.
Rajvu. Krishnaeav.,,1. L. Rep.
3 Bom. 373.
- To Suit to have a Deed Declared a For-
— To Suit for Dharmakartaship of Pagoda.
See Limitation. 64.
- To Suit to Enforce a Rightto Pre-emption.
see Limitation. 39. 49. 93.
See Pre-emption. 6.
Jogeskar Singh e. Jawahir
Singh L L. Rep. 1 All.
811.
See Pre-emption. 5.
Raja Ram v. Bansi ...I. L. Rep.
1 AH. 807.
D.gmzed by GoOgle
DIGEST OF CASES.
( 8U )
L IMIT ATIOR-coniJ.
To Suit to " Establish his Right" by Per-
son against whom Order under § 246 of
Act VIII. of 18S9 is passed.
Set CivilProcedure Code, Act VfH.
of 1859, §24U. 1.2.3.
Jkonu. Bhaowan Sahai ...I. L.
Hep. 1 All. S41.
BADRI PrASHAD V- MuHAWUD
Yusue... Ibid. 381.
iMBICHf KOVA *■ KaKUNNAT Up-
pari... .LL. Bep. I Mad.
391.
To Suit to Establish a Right to Shart
Patilki Watan and officiate in Rotat:
See Declarator; Decree. 19.
NlNDANGAVDA V.
I. L. Bep. IBom,
533, n,
To Suit to Establish a Right to Exclusive
Worship of Idol— Act IX. of 1871, Sched.
II., Art. tlS.
See Bight to Worship of Idol.
Ehsan Chunder v. Monmohini
Dassi I. L. Hop. 4
Gal. 688.
To Suit to Establish a Right to Turn of
Worship of Idol.
Set Bight to Worship of IdoL
Ehsan Chunder v. Monmohini
Dassi I. L. Hep. 4
Cal. 383.
To Suit to Establish Title to Property
ordered to ba sold in Execution.
See Limitation. 52.
— — To Suit for Foreclosure.
See Assignment of Mortgage.
Ganpat v. Aoarji...I. I>. Bep.
3 Bom. 313.
— — To Suit for Foreclosure.
Set Limitation. 17.
To Suit for " Haqq-i-Chaharam" based on
Custom.
See Limitation. 94.
- ' To Suit by Hindu Excluded from Joint
Family Property.
See Limitation. OB.
LIMITATION-™ M.
To Suit by Holder of Decree for MoTiey,
sold in Execution of a Decree against
him, subsequently reversed, against Auc-
tion Purchaser for Money recovered un-
der the Decree.
See Limitation. 25.
To Suit for Illegal Ejectment of Occupancy
Ryot.
See Bengal Act VIII. of 1839,
S 37. 1.
CtOLABOLEE V. KOOTOSBOLLA SlR-
car I L.Bep. 4 Cal.
627.
To Suit on Instalment Bond.
See Limitation. 30.
To Suit on Judgment
See Limitation. 62.
To Suit for Land belonging to Service
Watan alienated by Incumbent.
See Service Watan. 1.
Babaji v. Nana L L. Bep. 1
Bom. 535. 630.
To Suit for Maintenance,
See Limitation. 33. 33.
Sec Hindu Law— Maintenance of
Widow. 6. .
Krishna Mohuno. Okhilhont.
I. L. Bep 8 Cal. 381.
To Suit for Maintenance and Arrears un-
der a Will creating no Charge on the In.
heritance of the Testator's Estate.
See Limitation. 83.
— — ■ To Suit for Mesne Profits misappropriated.
Set Mesne Fronts. 6.
Pattarri Sir.
LL. Bep.4 0aL62S.
To Suit for Money belonging to Plaintiff
obtained by Fraud and Collusion.
See Limitation, 05.
To Suit for Money due on Bond hypo-
thecating Immoveable Property.
See Interest. 3.
BALDEO PaNDAY jr. Gokal Rai ..,
I. L. Bep. 1 AIL 603.
To Suit to enforce Mortgage Bond by Sale
of Mortgaged Premises.
See Limitation. 31.
D,gltlzed by G00gle
LIMITATION— contd.
i — - Suit against Municipality— Substitution of
President [or Secretary as Defendant.
,S«- Act XV. of 1878, J 48-
Manni Kasaundhan V CROOKS...
i. l. Bep. a aii. see.
— To Suit on Oral Agreement [or Payment
of Debt by Instalments.
See Limitation. 88.
To Suit (or Partition.
See Prescription. 1.
SlTAHAM V. KhAKDERAO ...I. L.
Bep. 1. Bom. 988.
To Suit for Partition— Manager holding
Bulk of Estate— Sir La ad held byothei
Members.
See Hindu Law—Partition. 8.
Runjeet Singh*. Kookk Gujraj
Singh... L.Bep. It A. &.
To Suit for Possession — Fraud.
See Limitation. 08.
To Suit for Possession with Mesne Pro-
fits by establishing Plaintiff's HemU
Right.
See Bengal Act Tin. of 1888, , 27
DIGEST OF CASES.
LIMITATION-
• Khajah Ashanoollah c. Ram-
DHONE BHUTTACHARJEB ...I.
L. Bop. 1 Cat 320.
To Suit on Promissory Note payable on
Demand.
See Limitation. 1. IS. 28. 08.
— To Suit on Promissory Note payable
Demand, brought after 1st April 1873.
See Limitation. IS.
— — To Suit on Promissory Note payable on
Demand to which Act XIV. of 1859
applicable.
Set Limitation. IB.
To Suit on Promissory Note payable
Demand, executed before Act IX.
1871 came into force — Demand made
before.and Suit instituted after, Act XV
of 1877 came into force.
Set Limitation. 28.
— To Suit on Promissory Note payable on
Demand, executed after Act IX. of 187 1
came into force.
See Limitation. II.
• To Suit on Promissory Note payable by
Instalments, whole to fail due on any
Default.
Set Limitation. 80.
To Suit by Purchaser at Sale for Arrears
of Revenue to recover Possession.
See Limitation. 14.
To Suit for Property Attached under Act
XXV. of 1861, Chap. XXII., 5 319.
See Limitation. 68.
To Suit foi Property Confiscated for Rebel-
Si-f Act EC of 1850, ( SO.
MoHUMMUD BuHADOORKHAN B.
The Collector of Babeillv.
L. Bep. 1 1. A. 167.
- To Suit for Property Sold in Execution of
Decree purchased by joint Debtor.
See Limitation. SO.
- To Suit for Possession of Land Purchaser]
at Execution Sale — Formal Possession.
See Limitation. 19. 32.
- To Suit for Execution Sale Proceeds from
Defendant, and for Declaration of Nullity
of Order under which Defendant obtained
Sale Proceeds.
See Limitation. B4.
— To Suit to Redeem — Acknowledgment of
Mortgagor's Title made before Act XIV
of 1859.
See Acknowledgment of Mortga-
gor'* Title. 2.
Data Ckand v. Sarrarax Au...
L L. Bep. 1 AIL 42(5.
— To Suit to Redeem— Acknowledgment of
Mortgagor's Title signed by Agent of
Mortgagee.
See Acknowledgment of Mortga-
gor's Title. 8.
RaHITMANI BlBlT. HllLASA KlMR.
I. L. Bep. 1 Alt 642.
— To Suit to Redeem — Acknowledgment of
Mortgagor's Title— Signature by Mortga-
gees as such, of Record of Rights and
Khatauni Shava Asamiwar.
See Acknowledgment of Mortga-
gor's Title. 1.
Daia Chard v. Sarfabaz...L L.
Bep. 1 Alt 117.
DigitlzSdbvGoogle
DIGEST OF CASES.
LIMITATION— contd.
— To Suit to Redeem — Adverse Possession.
Set Mortgage. 37.
Ali Muhammad v. Lalta Baksh.
I. L. Rep. 1 All. 850.
-— - To Suit to Redeem a Mortgage in Oudh.
See Act I. Of 1860.1.
Rajah Kishen Dutti', Narendar
Bakadoor Sinoh...L. Rep.
8 I. A. 86.
— — To Suit for Rent.
Sec Limitation. 4, add Res Judi-
cata. 18.
By Representative of Absconding Share.
holder in Village to recover Share from
Purchaser from Co-Sharer — Trust.
See limitation. 37.
To Suit by Returned Convict, under a
Pardon, to establish his Right to Share of
Family Property.
1"m Limitation. 38.
To Suit hy Reversioner for Declaration of
Invalidity of Alienation by Hindu Widow.
Bee Limitation. 3.
— To Suit to Resume Grant in lieu of Main-
See Limitation. 8.
To Suit to Set Aside an Adoption.
See Limitation. 97.
To Suit to Set Aside an Adoption and
recover Immoveable Property.
See Limitation. 68.
To Suit to Set Aside Sate for Arrears of
Revenue fraudulently contrived by Co-
Sharer.
See Sale of Arrears of Revenue, 3.
Bhoobun Chukder e. Ram Soon-
DER-..I. L. Rep. 8 Cal. 300.
To Suit to Set Aside a Sale in Execution
of Decree.
See Limitation. 61.
Suit for Share of Family Property— Parti-
cipation in Profits to Full Extent of Share
— Possession of Specific Share.
See Hindu Law— Undivided Fami-
ly. 3.
Lvchmun Singh it. Shumshere
Singh. ..X* Hop. 2 I. A. 69.
LIMITATION-ronW.
Trust, Constructive.
See Limitation. 20. 37.
Trust Eipress.
See Limitation. 37. 38. 88a. 01.
See Hindu Law— Will. 10.
MANIKLAL 0. MAHCHARSHA...I. L.
Rep. 1 Bom. 389.
1. To Suit brought after Act IX. of 1S71
came into force on Cause of Action not barred by
Act XIV. of 1859.] It was the intention of the
Legislature that Act IX. of 1871 should apply to
suits brought after it came into force upon
causes of action which existed before that day
(1st April 1S73), and on which causes of action
the periods of limitation prescribed by Act XIV.
of 1859 had not run their full course before that
A suit, therefore, brought on 25th January 1S76
on a promissory note payable on demand exe-
cuted on the 31st July 1870, will be sustainable
if there has not been a demand made more than
three years before the filing of the plaint.
Rauchandrav.Sokar. Wesirofp.fZ.]., and AT.
Harridas, J I. L. Rep. 1 Bom, SOS, n.T
1877.
See Abdul KaSih v. Manii Hansraj...
Ibid. 396.
Under Onus Probandi, and II and 18,
infra.
ft, To Suit to obtain a Declaratory De-
cree—Act XIV.ofi*W.S l,Ct. 16.J Per MetvM,
J : — As no other limitation is expressly provid-
ed by Act XIV. of 1S50, a suit to obtain a
declaratory decree, and nothing more, falls
in the provisions of J I, CI. 16, of that
Act.
r N. Harridas, J. : — That clause does not
apply to a suit in which a declaration is sought of
ight in immoveable property, but CI. 12
I only know of One case, Bhikaji v. Jaga-
nath (10 Bom. H. C. Rep. 351), in which it
juld appear to have been laid down that a suit
by a reversioner, during a widow's lifetime, to
obtain a declaration that a conveyance made by
her is void, must be brought within six years
from the dato of the conveyance— Act XIV. of
1859, I I, CI. 16. The Calcutta cases do not
appear to have been cited or considered by the
learned Judges in that case, and if the point
arose before me, I should probably be disposed
Di,iii,.db»Goo<^le
DIGEST OF CASES.
UMCTATIOW-™*.
to take a different view of the Law." Per N
Harridas,). MORU Patlaji v. GopAL Satu...I.
I.. Rop. S Bom. 130.
8. Remand — Special Appeal— Plea of
Limitation first raised on.] A defence of
limitation under Act XIV. of 1859 cannot be
raised for the first time after there has been a
remand on special appeal, and on a special
appeal from the decree of the Court which heard
the cause on remand.
Per Westropp, C. J. :— Speaking for myself
alone, I reserve the right lo consider whether,
even upon a special appeal, in a case where there
has been no remand, I should follow Saluji v.
Rajsangji (2 Bom. H- C. Rep. A. C. J. 162) and
Davlata v. Bent (4 Bom. H. C Rep. A. C. J.,
197). Monu Patlaji r. Gopal Satu. Westropp,
C. ].,Westsu\APinhey. JJ...L L. Rep. 2 Bom.
130, 1877.
4. Suit for Rent.'] A landlord, by mere-
ly denying the tenancy, and bringing a suit to
recover possession, in which he is ultimately
unsuccessful, does not thereby put an end to the
tenancy so long as the litigation is going on, or
prevent limitation from running so as to bar a
suit for rent brought by him on the failure of
his suit for possession. Watson & Co. v. D110-
NENDftA Cjiunder MOOKERJEE. Afarkby and
Hitler, ]J I. L. Bep. 3 CaL 6, 1877.
S. C. under Be* Judicata. 18.
5. Execution of Decree— Compromise of
Decree— Receipt of Instalments.] The receipt of
instalments by a decree- holder out of Court in
pursuance of a compromise made between him
and the judgment.debtor is not a proceeding to
enforce or keep in force a decree, and a condi-
tion in the compromise that on default being
made in a certain number of instalments, the
decree should be executed in full, does not pre-
vent limitation from running, even though such
compromise should be recognized by the Court
executing the decree. A decree-holder entered
into a compromise with the judgment debtor,
agreeing to accept payment by instalments, which
compromise was notified to the Court executing
the decree by a petition from the judgment debtor
acknowledging the decree-holder's right to re-
vert to execution of the oirginal decree in the
event of failure to pay any two consecutive
monthly instalments, and the composition was
ratified by the Court, the case being struck off
n file on the 71b September 1S69.
LIMITATION-™^.
On the 15th of February 1873, the decree-
holder applied for a certificate under { 258 of
Act VIII. of 1859, to enable him to execute the
decree out of the jurisdiction of the Court. The
certificate issued on the aeth of April 1873, but
no further proceedings were had under it, as the
judgment -debtor resumed payment of instal-
ments. On the Ijth of January 1876, the decree
holder again applied for execution of the decree :-
Held, lhat execution was barred by limitation
at the time when the application of the 15th
February 1873 was made, and the fact that there
were proceedings in 1873 which would make the
application of 1876 within time, was of no use
lo the decree -holder. Stowell c. Billings.
Stuart, C.J-, and Spankie, }...!, L. Rep. 1 All.
360, 1877.
6. Presentation of Plaint— Vacation-
Act IX. of 1871, § S CI. a) Where the period of
limitation prescribed for a suit expired when
the Court was closed for a vacation, and the
Court, instead of opening on the day that it
should have re. opened after the vacation, re.
opened on a later day, on which day the suit
was instituted, and it appearing that the plain-
tiff brought his plaint to the Munsiff of the
Court on the day on which it ought to have been
re-opened in order to present it :—
Held, that the suit was instituted in time.
Bishan Chand a. Ahmed Khan. Spankie and
adfield, JJ I. It, Sep. 1 All. 268, 1876.
See 13, infra.
7. Title — Possession — Acts of Ownership
—Evidence.] In some cases, as for instance,
where grants or leases bave been made of waste
or jungle lands, and the right to those lands is
disputed, it is often impossible to give evidence
of acts of ownership or possession over the pro-
perty, because it is uninhabited and uncultiva-
ted, and no acts of ownership by any one have
been exercised over it. In such cases it is
often necessary, for the purpose of deciding the
question of limitation, to rely on very slight
evidence of possession, and sometimes posses-
sion of the adjoining land, coupled with evidence
of title, such as grants or leases, and the Courts
are justified in presuming, under such circum-
stances, that the party who has the title has also
the possession.
But where the land appears to have been
occupied, it is generally proper to deal with the
question of possession, for purposes of limitation,
as distinct from the question of title, for while
D,„i„.db»Google
DIGEST OF CASES.
LIMITATION— conid.
the title may be in one person, a twelve years'
adverse possession by another person may have
barred that title. Mohima Chundbb Dev Sir-
cur, v. Hurro Lall Sircar. ..Garth, C.J. , and
McDonnell, J. ..I L. Rep. 8 Cal. 768 ; 2 Cal.
Bsp. 364, 1878.
8. Grant in lieu of Ma
Right to resume.'] In a suit brought to recover
khas possession of certain lands held under a
grant in lieu of maintenance, the defendants
pleaded that a permanent mokurrari settlement
of the lands had been granted to their ancestors
previous to the year 1802, and that the plaintiff's
claim was barred by limitation. It appeared
that more than twelve years before the institu-
tion of the present suit, the then talookdar had
sued the present defendants for enhancement
of rent, but that the defendants in that suit
claimed and established a right to hold the
lands in question as a mohurtan holding at
a fixed rate ; and that the then plaintiff, having
thus failed to obtain an enhancement of rent
from the defendants, had sued the then Raja-
Zemindar (through whom the present plaintiff
claimed) for reduction of the talook rent paid
by him, on the ground thai the defendants hav-
ing set up and proved their right to hold the
lands at a mokurrari rent, his (the Raja's) as-
surances in respect of the gross rental of the
talook had proved unfounded to that extent, and
that he, the talookdar, was entitled to a corre-
sponding reduction of the talook rent paid by
him ; and that the talookdar had succeeded in
Held, that the setting up by the defendants
of the mokurrari in the former suit, was not mere-
ly a setting up of the mokurrari, but it was set
up in such a manner as affected the Raja-
Zemindar with a loss pro ianto ofhisrentin
consequence of this mokurrari ; and was such
an allegation as put upon the Raja the necessity
of attaching the lands within twelve years.
Though grants for maintenance by the Raja for
the time being, may be liable to revocation at
the instance, and at the discretion of succeeding
Rajas, yet even if the right of resumption exists
in such cases at the option of each Raja at the
time of his accession, still, if he has notice of
a claim to hold such mokurrari, and allows
twelve years to go by without taking steps to
get rid of it, he at least isbarred for the lime of
his enjoyment. The present suit, therefore,
was hatred by limitation. I'liambkk Baboo i>.
LIMITATION— contd.
Niluony Singh. Jackson and Tottenham, JJ...I.
L. Hop. 3 Cal. 793, 1878.
9. Suit for Arrears of Rent— Deduction
of Time occupied in Enhancement Suit — Beng,
Act VIII. of 1869, ( 29.] The plaintiff on the
19th of January 1876 sued for arrears of rent
due for the year 1S69-70, and alleged that in
the year 186S-69 the plaintiff had issued a notice
enhancing the rent of the defendant, and that a
suit for the recovery of the enhanced rent for
the year 1869-70 was brought against the defend-
870, and finally decided against the
plaintiff in 1873. The present suit was for the
for the year 1869-70, at the old
admitted rate, and the plaintiff contended that
such rent did not become due until the dismissal
Held, that notwithstanding the notice of en-
tbe plaintiff could have sued the
■nt defendant in 1 870, for the rent claimed in
uit, which became due in the year 1870, and
resent suit, not having been brought within
■ years from the last day of that year, was
barred by f 29 of Beng. Act VIII. of 1869; the
plaintiff not being entitled to deduct the lime
pied by his enhancement suit from the time
which had elapsed since the rent became due,
rder to bring the present suit within the
period of limitation prescribed by that section.
Brojendro Coomar Roy «. Rakhal Chvnder
Roy. Mitter and Maclean, J] I. L Rep. 3
Cal. 791, 1B78.
Suit for Arrears of Rent—Beng.
Act VIII. of 1869, § 29.] In a suit brought in
876 for arrears of rent of certain lands for the
'ears 1866-72, it appeared that the lands in
question originally belonged to. the defendants'
incestors, but that on their default in payment of
the Government revenue, the lands had been sold
and purchased by the Government, from whom
the defendants leased the property under a lease
which expired in 1 866. In 1S61 the Government
sold its rights in the lands to the plaintiff's
1 866, on the expiration of the
defendants' lease, the plaintiff endeavoured to
obtain possession of the land, but was opposed
by the defendants, who set up certain chukdari
tenures. The plaintiff then, in 1874, brought a
suit against the defendants to recover khas pos-
session, and the defendants set up in that suit
the chukdari tenures. On appeal, the High
Court found that the defendants were entitled to
D,gltlzed by G00gle
)
DIGEST OF CASES.
.■LIMITATION-™^.
the rights claimed by them, and that the pi:
tifTs suit was barred by limitation. The plaintiff
then, in 1 876, brought the present suit to recov
the arrears of the chultdari tenures from 1S66
I»7*;-
Held, that the last rent thus claimed having
accrued due in 1872, the suit was barred by
f 39 of Beng. Act VIII. of 1S69.
The plaintiff Ought to have known, when thi
defendants' lease came to an end in 1866, what
his true position was as against the defendani
They set up against him the chukdari tenure
and if the plaintiff had made proper inquirii
he might have ascertained whether those tenures
, really existed. But he chose to ignore t
and to sue the defendants improperly (as it
turned out) for khas possession, and it »-a:
because he had made a mistake, and by that
mistake put the defendants to the cost an'
convenience of a long litigation, that he had
now a right to claim immunity from the provi
sions of the Limitation Act, Hurro Proshad
Roy «. Gopauv Dass Dutt. Garth, C J., and
McDonnell, J... I. L. Bep. 3 Cal. 617 ; 2 Cal.
Hep. 4S0, 1878.
11. — Promissory Note payablt oh De-
mand—Act IX. of 1871, tj§ a, 3,4, and Scked.
I/.-] In a suit filed on the 17th of Novel
1875 on a promissory note payable on demand
made on the aoth of November 1871 : —
Held, that the suit not having been brought
until after the date on which § 4 and Sched.
II. of Act IX. of 1871 came into force, the
question whether or not the suit was barred by
limitation must he determined by Schedule II.
of that Act, which gives three years from the
date of demand ; and that the suit, therefore,
was not barred, there not having been any de-
mand made before suit. Madhavan e. Achuda.
/*»«, C J. (Offg.) and Kindersley, J. ..I L. Bep.
1 Mad. 801, 1877.
19. Sale in Execution of Deeree~
Formal Possession.'] A. purchased the right,
title, and interest of B., a judgment-debtor, in
1 sale i
not
a decree in October 1863, was put into formal
possession in January 1865, and died without
ever having obtained actual possession. After
his death, a suit was filed in September 1875,
on behalf of his minor son C, against the de-
fendants, who obstructed his taking actual
possession. Held, thai if B. was in possession
I-TMIT ATION -contd.
at the time of the sale, or within twelve years
prior to the date of the suit, C. was not barred
by limitation. Koonjo Mohun Dass v. Nobo
CooMAk ShAha. Mitterand Maclean, J] I.
L. Bep. 4 Cal 318, 1878.
IS. Suit for Arrears of Bent-Bengal
Act VIII. of 1869, ( if—Close Holiday.-] A
rent suit under Bengal Act VIII. of 1869 must
be brought strictly within the term of three
years prescribed by f zo of that Act, which con-
tains the only law of limitation applicable to
the case. Where, therefore, the last day of the
term so fixed was a close holiday, and the plaint
in such a case was filed on the following day 1 —
Held, that as § 29 contains no provision for
relaxing the term fixed by it, such as is con-
tained in Act IX. of 1871, the suit was barred.
Purran Ckunder Giiosi v. Ml'ttv Lall
Ghosh jAHtRA. Martby and Prinsep, JJ..X
L. Bep. 4 Cal. 50 ; 3 Cal. Bep. 549, 1878.
See 6, supra.
Dissented from in Khoshelal Mahton
o. Gunnisb DUTT...I. L. Bep.
7 Cal. 66O.
See Vol. 2, Cot 869.
14. To Suit by Purchaser at Sole for
Arrears of Government Bevenue, to recover
Possession.] In suits instituted by a purchaser
to recover possession of an estate sold for ar-
rears of Government revenue due on such
estate, the purchaser's cause of action (by what-
ever period of limitation it would be restricted)
arises from the time of his purchase, and the
period of limitation is to be counted from that
time. NarRAIN ChanDhR V. Tavler. Jackson
and Tottenham,]},.,!. L. Kep. 4 Cal. 103 ; 3
Cal. Bep. 101, 1878.
15. Suit on Promissory Note payable
Demand— Suit barred by Act XIV. of 1859—
Act IX. of t&71tSched.il.,Art. ^2.^} The defend,
ant gave the plaintiff a promissory note on the
5th of August 1S69, payable on demand with
rest at 5 per cent, per annum. Nothing
paid on account of principal or interest, and
payment was first demanded in November 1875.
In a suit brought on the note after the demand -.
—Held, that the cause of action accrued on,
and [imitation began to run from, the dale of
the note, and as the suit, therefore, would have
been barred by Act XIV. of 1859 if brought
before the 1st of April 1873, the subsequent
D,„i„.db»Google
DIGEST OF CASES.
< 886 )
UXTTATIOTH-contd.
repeal of that Act did not revive the plain
right to sue. Nocoor Chuhder Bose ». Kallv
Coouar Ghosb. Pontifex, J...Z. L. Rep. 1
Cal. 838, 1876.
Overruled by Mohesii Lai. v. Busunt
Kumahbe.-.I. L. Bop. 6 CaL
840 ; 7 Cal. Rep. 131.
See ToL 3, Col. 818.
16. Suit barred by Act XIV. of 1859-
Suit instituted after Act IX. of 1871 came into
force.] The question whether a suit lor move.
able or immoveable property which had become
barred under any of the provisions of Act XIV.
of 1859, before Act IX. of 1871 came into force,
could, by reason of the alteration of the periods
of limitation in the latter enactment, be now
sustained, was said hy Westropf, C.J., in
Abdul Ka rim v. Manji Hans Raj
L L. Sep. 1 Bom. 385, p.
SOS,
to be a point which the Court had not up to that
time had to decide, and on which the Court did
not in that case give any opinion. But in
Rahchandra c. So hah... I. L,
Rep. 1 Bom. 306, n.,
iff hill, J., in giving judgment, says: — "The
learned Judge" (of the Small Cause Court) " has
referred to 7 Mad. H. C. Rep., pp. 283, 283, and
29S ; but those three cases are not in point, as
in all of them the right of suit bad been barred
by Act XIV. of 1859 before the 1st of April 1873,
when Act IX. of 1871 came into force. The
defendants in those cases had become entitled,
under Act XIV. of 1859, to regard the claims
sued upon as barred, and if the Court had held
that Act IX. of 1871 had conferred on the plain-
tiffs a fresh starting point, it would have given
such a retrospective construction to Act IX. of
■S71 as would have deprived the defendants of
the right to treat the claims as barred— which
construction, in the absence of express words
or clear implication of a retrospective in
Courts of Justice avoid— and the High Court of
Madras declined in those three cases so to
stnie the Act." His Lordship, after guarding
himself from being supposed to give any opinic
on those cases which were distinguished by hi
from that under trial, proceeded: — "But u
should add that Madhavbhai v. Patteting (1
Bom. H. C Rep. 487) must not be regarded .
opposed to them, as, although the dates in tin
case, when now examined, show that the rightof
LIMITATION— contd.
suit had been barred before Act IX. of 1871 came
into force, that circumstance escaped the atten-
tion of the Court, and did not enter at all into
its consideration when deciding the case.''
17. Extinction of Claim—Bar of Re-
medy— Revival of Debt— Act XIV. of 1859, f 1,
CI. (2— Act IX. of 1871, Sched. II., Art. 149—
Act XV. 0/1877, % 28.] In 1842 one H. C, a,
brother of the plaintiff, executed a mortgage of
his share of the estate of his father, to the plain-
tiff, who was in possession of the family property
as kurta and administrator of the estate, to
secure the sum of Rs. 3,700 then due, and
further advances to the extent of Rs. 8,000 which
the mortgagee thereby agreed to make. The •
mortgage deed contained a proviso that if the
mortgagor should " on demand " pay to the
mortgagee the said sum of Rs. 3,700 and interest,
and should also repay " on demand " tbe further
advances, and such sums as should or might
appear to be " due and owing " on any balances
of account between the mortgagor and mort-
gagee, with interest, from the times when such
balances should be struck, with annual rests on
30th April in each year, then the conveyance
should be void. The deed contained acovenant to
pay "on demand," and a rightof entry was reserv-
ed to the mortgagee in default of payment " on
defnand." In 1847 an amicable partition of the
family property was proposed, and it was agreed
that a certain portion should be allotted to the
plaintiff in satisfaction of the debt due to him by
H. C, but this arrangement was never carried
out. In a suit brought in 1876 against the
representative of H. C, for foreclosure of tbe
mortgage, the plaintiff alleged that no payment
had ever been made in respect of the mortgage,
nor any demand for payment till 1S76. The de-
fendant contended that the suit was barred by
limitation : — Held, under the circumstances of
the case, and the construction of the mortgage
deed, per Garth, C.J., that a demand was neces-
sary -per Mnrkby, J., that the words" on demand"
in the mortgage bond must he read (in the same
way as they are always read in a promissory
note and) not as postponing the date of pay-
ment, and that the money advanced was due as
soon as the advances were made.
Per Garth, C.J., and tfariby, J.— That it must
be presumed that a demand was made in 1847,
on the agreement to partition the property.
The suit therefore was barred by Act XIV. of
1S59, as being brought more than twelve years .
D.grt^dbyGOOgle
(
)
DIGEST OF CASES.
MMCTATIOK-foaM.
•Iter the cause of action arose. That Act
only barred the remedy, but extinguished the
tight, and therefore the plaintiff could ob-
tain no benefit from the extended period of limi-
tation given by Art. 149, of Act IX. of 1871,
which repealed the Act of 1859. .
f 149 of Act IX. of 1871 applies only to those
cases where a part of the principal or interest
of the mortgage debt has been paid.
Per Garth, C.J.— The SSth Section of the
Limitation Act of 1877 (Act XV. of 1877)
would seem to extend the doctrine that twelve
years' adverse possession not only bars the re-
medy of the rightful owner, but extinguishes the
- right to property other than land ; but quart,
whether the same principle should be held to
apply to debts. Ram Chunder Gkosaul t>,
Juqgutmonmohinney Dabhe. Garth, C.J., and
Mariby, J I. L. Rep. 4 Cal. 288; 8 Cal.
Sep. 336, 1878.
Overruled by Mohesh Lal o. Busunt
Kuhafee ... I. L. Rop. 6 Cal.
340 ; 7 OaL Rop. 121 .
See Vol. 9, Col 818.
18. Limitation before Act XIV. 0/1859
against Reversionary Heir.'] In a Suit by a
daughter's son, brought in 1858, to recover his
maternal grandfather's share in the ancestral
estates from his maternal aunts and the heirs
of his maternal granduncles, the former pleaded
a petition admitting the plaintiff's title as heir;
the latter pleaded, inter alia, first, that since the
death of the grandfather in 1824 neither the
plaintiff nor his grandmother, mother, nor ma-
ternal aunts were in possession, and that there-
fore the suit was barred ; secondly, in effect,
that the plaintiff was not entitled to succeed.
Held, first, that the suit was not barred. The
grandmother, who died in 1835, lived and was
maintained as a member of the joint family
(Bengal school), and the presumption was that
she participated in the profits of the estate as a
sharer. Limitation ran from her death, and
deducting the periods during which the plaintiff
and his mother were respectively under the
disability of minority, the suit was in time.
Secondly, as to the plaintiff's title. Any ad-
mission thereof by the maternal aunts would
neither bind the co-defendants, nor be evidence
against them. The petition above named did
. not amount (even if its execution had been
LIMITATION-™-,^.
proved) to a conveyance or to a disclaimer of
title, nor did it warrant a judgment against them.
AuMUtTOLALL BOSE V. RaJONEEKANT McTTKH...
L. Sep. a I. A. 113 ; 10 Bong. L. R. 10 ;
93 W. B. 914, 1874.
S. C. under Admission and Hindu
Law — Inheritance— Daugh.
tor's Son. 9.
19. ■ Laches—Act XIV. of 18J9, f J—
Mesne Profits.] The heirs and representatives
of a mortgagor sued in 1869 to recover possession
with mesne profits of property comprised in a
Zur.i.peshgee lease executed in 1814, the mort-
gage debt due in respect thereof having been
satisfied, from the appellants, who had purchased
the same for valuable consideration without
notice of the plaintiff's title. It appeared that as
to a moiety of the property the appellant's ven-
dor, a Mahomedan lady, derived her title under
a boimokasa executed iu 1844 by her husband,
who was one of the heirs of the mortgagee.
The appellants in the Courts below mainly
relied on an alleged conveyance of the equity of
redemption to the heirs of the mortgagee in
■ 841, and did not plead or prove that the exe-
cution of the baimokasa was a bond fide
Held, that the execution of the deed of 1S41
not having been proved, the laches of the plaintiffs
did not estop them from asserting their rights.
The question was one of title, and the right to
assert that title was to be determined by the law
of limitation as it stood, which gave to mortga-
gors the period of sixty years within which to
bring their suit, and no Court of Justice would be
"in diminishing that period on the ground
of the laches of a party in the prosecution of his
ights.
In the absence of any investigation by the
Courts below into the bona fides of the baimo-
kasa, the appellants not having pleaded limitation
mder ( 5, Act XIV. of 1859 :—
Held, that no distinction as regards the statut-
able period of limitation could be drawn in
respect of the property included therein. Under
rcumstances of laches and irregularity,
profits were allowed only from the date of
the institution of the suit. Jugqeknath Sahoo
Svad Shah MahoUso Hossbin.,.L. Rep. 2
I. A. 48 ; 14 Bong. L. R. 386 ; 33 W. R.
89, 1874.
DigitlzSdbvGoogle
( M9 )
DIGEST OF CASES.
( wo )
UHITATION-n-nfct.
80. Cause of Action— Mocassa Vil-
lages— Sale for Arrears of Revenue — ffert Cause
of Action.'] The talook of a zemindar was sold
in 1 854 for arrears of revenue, and possession was
given to the purchaser in 1855; It was subse.
quently represented by the zemindar to the
Government that fifty of the villages had been
wrongfully sold, as they were mocassa villages,
which had been alienated from the zemindary
and paid only a quit-rent to the zemindar, and
were not subject to revenue.
In i860 the Government admitted the ex-
zemindar's right to the villages, and ordered an
annual payment to be made to the ex-zemindar
by way of compensation, and after resuming the
villages made them over to the purchaser under
the sale for arrears of revenue, adding Rs. 5,000
to his pcshkask, but the plaintiff did not accept
the compensation, and in 186S sued for the
recovery of the villages : —
Held, that more than twelve years having
elapsed since the sale and dispossession, the
suit was barred by Act XIV. of 1859, and that
even if there had been in i860 a new grant by
Government, of the villages, to the purchaser at
the revenue sale, that did not give a new cause
of action to the plaintiff, who was suing under
the title he had in 1854 and 1855, and no other
title ; and, not having had possession since his
first dispossession, nothing that passed between
the Government and the purchaser under the
revenue sale affected the question of limitation.
Raja Sri Chaitanya Chun drat. The Col-
lector of Ganiaw lb Bep. 1 1. A. 880 ;
32 W. a. 187, 1874.
21. Non-Payment of Rent by Occupancy
Ryot — Title — Admission by Tenant of Liability
to pay Rent — Adverse Possession."] The non-pay-
ment of rent for a term of twelve years and
more does not relieve an occupancy ryot from
the status of a tenant. If the defendant recog-
nizes the title of the plaintiff to take rent, the
mere fact of the plaintiff abstaining fora number
of years from taking it does not in itself create in
the defendant an independent title in the land.
As rent falls due year by year, or kist by Hst,
the failure to pay becomes a recurring cause of
action, and therefore where the right to take
rent is admitted by the ryot- defendant, no ques-
tion of limitation can arise. Pores 11 Narain
Roy n. Kassi Chundrr Tamjkdak. Morris and
Prime}, JJ I. L. Bep. 4 CaL 681, 1878.
57
LIMITATION— contd.
22. Execution of Decree— Formal Pos-
session given to Decree-holder— Effect of.] When
a decree for possession of land is executed and
possession delivered in the usual way, whether
actual possession is thereby obtained or not, the
defendant cannot thereafter successfully rely on
the plea of limitation based on his wrongful
possession previous to the execution.
Such formal delivery of possession to the
decree-holder by an officer of the Court in execu-
tion of the decree is sufficient to give him a fresh
cause of action, and, though he may never have
obtained actual possession, be or his assigns
may sue to recover possession at any time within
twelve years from the time when such formal
possession was given. Peary itokun Poddar v.
Juggobundoo Sen (24 W. Rep. 418) dissented
from, as being opposed to the decision of the
Privy Council in Gunga Gobind Mundul v. Bhoo-
pal Caunder Biswas (19 W. Rep. 101). UmBicka
Churn Goopta tr. Madhub Ghosal. Birch and
Mitter, JJ. ...I. L. Bep. 4 Cftl. 870 , 4 Cal.
Bep. 85, 1879.
23. Execution of Decree— Proceedings
to enforce Decree.'] Application for the execu-
tion of a decree was made on the 21st of Decem-
ber 1864, and, in pursuance of such application
the notice required by law was issued to the
judgment-debtor. On the 7th February 1865,
the Court executing the decree called on the
decree-holder to produce proof of the service of
such notice within four days. On the 33rd
February 1865, in consequence of the decree-
holder having failed to produce such proof, the
Court dismissed the application. There was no
proceeding either of the decree-holder or of the
Court between the 7th and 23rd February 1865.
On the tSth February 186B, application was
again made for execution of the decree : —
Held, that the proceeding of the Court of the
23rd of February 1865, striking off the former
application for default of prosecution, was not a
proceeding to keep the decree alive, and that
the latter application was therefore beyond time.
Rachu Ram t- Dannu Lai,. Pearson and Old-
field, JJ I.L.Bep.2 All. 885,1870.
84. — Act XV. of 1877, Scked.il., Arts.
661 67, /$, So—Instalment Bond — Cause of
Action.] B. and S. executed a bond, dated the
15th August 1874, in the following terms ;—
" We having jointly and severally borrowed and
received the sum of Rs. 1 5,000" from the plaintiff.
by Google
DIGEST OF CASES.
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LIMITATION —ttntd.
" do hereby covenant and agree to pay or cause
to be paid unto" the plaintiff " the said
within 3 years from the date hereof, interest on
the same at the rate of 8 per cent, per annum
being payable half-yearly, ma., on the 30th J'
and 31st December in each calendar year, and
premium on life policies to be endorsed to" the
plaintiff " periodically according to the roles of
the Insurance Company. In the event of failure
in the payment on the due date of the interest
and premia, and whether advice be or be not
given of such default, we hereby jointly and
severally render ourselves liable to pay up the
full amount of this bond, or such portion or
balance thereof as may be due or may become
due, according to the account" of the plaintiff,
" from date of such default to payment of loan
in full, and other charges that may or shall be
incurred on account of the said loan. It shall
be optional to" the plaintiff " to claim, and, if
necessary, to sue for, the full amount on the
bond, on the failure of any one or more stipula-
ted payments, or on the full expiry of the period
this bond was originally intended to run, if all
its provisions had been fulfilled by us."
Policies of insurance on the lives of B. and S.
were deposited with the plaintiff as collateral
security for the repayment of the loan, and to
these policies the provisions in the bond as to
the payment of premia related. No interest was
paid on the bond, but there was do default in
the payment of the premia.
On the itith July 1878, the plaintiff instituted
a suit to recover the money due on the bond.
B. alone defended the suit, and pleaded that it
was barred by limitation, 1st, with reference to
Art. 75, Sched. II. of Act XV. of 1877, that
inasmuch as interest was payable half-yearly,
the bond was one payable by instalments, and
default having been made in the payment of
interest, limitation ran from the time when the
first default was made ; and 2ndly, that if the
bond was not an instalment bond, inasmuch as
the plaintiff's cause of action arose on the first
default, limitation ran from that date, notwith-
standing the concluding words of the bond: —
Held by Stuart, C.J., that the bond was not an
instalment bond, but simply a bond acknowledg-
ing the debt with interest payable half-yearly,
with a proviso that if not so paid, the obligors
should be liable to pay up the whole amount
from date oi such default, i.e., from date of
failure in payment of interest, and that the period
LIMITATION-™,*,/.
of limitation ran from the expiration of three
years allowed by the bond, oi*., from the I jtb
August 1877; and that the suit, therefore, was
By Span/tie, J.— That the bond was not one
payable by instalments, and therefore that Art.
75, Sched. II. of Act XV. of 1877 did not apply to
it- Nor did Art. 67 apply, inasmuch as though
the 15th August 1S77 was not specified in so
many words as the date for payment, yet the
bond was repayable within three years from its
date, the 15th August 1874, and therefore it
could not be said that the bond was one in
which no day for repayment had been specified.
Nor did Art. 68 apply, inasmuch as the bond
was nol subject to a condition. The provision,
however, in the bond imposing a liability for
immediate demand of the entire amount due on
the bond before the expiration of the term of
the bond, on the occasion of default of payment,
placed it under Art. 80, and limitation would
run from the date when the bond became due.
According to the terms of the bond in the
second and third clauses, which must be read
together to understand the real meaning of the
parties, the obligee was not called upon to
:hoose whether be would at once demand the
amount due, or postpone his suit until the full
term of the bond had expired, unless there had
been default in the payment of both premia and
interest ; and if the default did not extend beyond
the interest or premia, a complete and present
cause of action had not arisen. There having
been no default in payment of premia, there
was no such default as gave the plaintiff a com-
plete and present cause of action because of the
default of the payment of interest, and the suit,
therefore, was not barred by limitation. Ball v.
Stowell L L. Rep. 2 All. 322, 1879.
1, — — Suit for Damages — Suit for Monty
ted to Plaintiff's Vse—Att XV. of 1877,
Sched. II., Art. 62.] The bolder of a decree for
money, which had been sold in execution of a
decree against him, sued the auction purchaser,
the sale having been set aside, for the money be
had recovered under the decree ; —
Held, that the suit was not one for damages,
but for money payable by the defendant to the
plaintiff, for money received by the defendant for
the plaintiff's Use, to which the period of limits-
applicable was three years. Bhawani
Kuar v. Rikhi Ram. Spaniie and Straight, JJ.
I. L. Eop. 2 All. 304, 1879.
Diaxized by Google
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DIGEST OF CASES
{ 87* )
LIMIT ATION-ronW.
26. Constructive Trust.} B. P. and
K., his son, werejointly entitled to one moiety
of certain property, and C. and B., the brother
of B. P., and B.'s son D. P., were in like manner
jointly entitled to the other moiety. B. and
D. P. were transported for life in 1840, their wives
being alive at the time. On the death of D. P.
wife, B.'i wife being already dead, K. L. mor
gaged the entire property, in May 1873, to th
plaintiff, who afterwards bought in the same at
a sale in execution of a decree obtained by hi
on the mortgage. D. P. having returned from
transportation under a free pardon in 1S77, and
the plaintiff being prevented by him from obtain-
ing possession of the property, the plaintiff sued
in 187S to establish his title to, and for possession
of, the entire property. The lower appellate
Court held that no express trust had been created,
as alleged by the defendant, of the moiety of the
property which belonged to him and his father,
with K. L. and his father, for the benefit of the
defendant and his father, and that the defendant'
wife had died in i860 or i66r, and that the
defendant's right was, therefore, extinguished :-
Held, by Oldfield, J., that even assuming th'
facts to be as found by the lower appellat'
Court, that B. P. and K. L. never made ove
the rents to the wives of D. P. or his father, and
themselves took possession on the transportation
of the owner, although there might have been
no express and actual trust, yet there were
circumstances which amounted to fraudulent
conduct on the part of B. P. and K. L., such as
would, by equitable construction, convert their
holding into that of trustees. The parties were
nearly related to each other, living in what
might be assumed to he terms of close intimacy
and mutual confidence, and the appropriation of
the absent relatives' property could only have
been carried out by a shameful abuse of the
friendly and confidential terms on which they
had lived, and by taking advantage of the
enforced absence of the owners, who had no
means of asserting their rights.
But upon the evidence, held, that B. P. and
K. L never asserted, or intended to assert, any
title adverse to D. P-, who was, therefore, en-
titled to succeed.
By Straight, J.— That under all the circum-
stances of the case, and from the relationship
between the parties, a constructive trust existed
in B. P. and K. L. for and on behalf of B. and
D. P. from the day their imprisonment com.
LIMITATION -™nW.
menced. By his imprisonment D. P. was placed
under a disability, just as much as a person
" beyond the seas," or "lunatic," or "underage,"
and was thus deprived of the power of looking
after his own interests, or asserting his rights,
andduringsuchtimeas it lasted, B. P. and K. L.~
so far as hit share in the property was concern-
ed, occupied towards him a fiduciary position,
of which K. L. had taken advantage in fraud of
his ctstui-qut-tmst. Till D. P. obtained his
release, it would have been impossible for him
to know what had happened ; his wife was dead.
and he seemed to have no children to complain
of the misappropriation by X. L., or any means
of gathering information of his misconduct.
No limitation, therefore, could affect the rights
of D. P. Duroa Prasad v. Asa Ram.... I. L.
Rep. S All. 801, 1870.
87. Suit by Representative of Abscond-
ing Shareholder to recover Share from Purchaser
from Co-Sharer who had taken Possession — Trust
—Entry in Wajib-ul-Arz —Act IX. of 1871,
I 10.] The plaintiffs claimed, as representatives
of certain co.sSarers in a village, who had
absconded from the village, to recover the share
of such co-sharers from the defendant, who
had purchased it from another co-sharer, in whose
hands, as the plaintiffs alleged, their ancestors
had, when they absconded, left their share as
trustees for them, and the plaintiffs rested the _,
proof of the trust on an entry in the Wajib-ul.
or village administration paper of 1864.
The defendant denied the creation of the trust,
and pleaded limitation : —
Held, that assuming the plaintiffs to be th:
representatives of the persons whose represents.
they claimed to be, in order to establish
that the defendant's vendors held their property
.s their trustees, after their absconding, there
nust be evidence that they accepted such a trust,
nd this fact could not be taken as proved by a
ague and general entry made in an adminis-
ration paper of a date subsequent to the
relinquishment of the property by the abscon.
ich referred to future years, to which the
defendant's vendors were no parties, and which
;ly stated in general terms that absconders
from the village should receive back their pro-
perty on their return.
Held also, that assuming such trust to be
established, the claim was, notwithstanding,
barred by limitation, since the defendant was a
purchaser from the trustee in good faith for
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value, and without i
not the repre:
ntd.
:e of the trust, and was
ntative of the trustee within
§ 10 of Act IX. of 1871, and
had been in possession for more than twelve
years. Piarey Lal «. Saliga. Spankie and
Oldfield, JJ X L. Hep. 2 All. 894, 1879.
28. Promissory Note payable en De-
mand—Act IX. of \%-]l—Act XV. of 1*77, § 2,
and Scked. II., Art. 73.] In a suit instituted On
the 20th November 1878 on a promissory note
dated the 4th of July I 870, payable on demand,
demand having been made on the 10th September
1S76;—
Held, that the suit was within the indulgence
of § 2 of Act XV. of 1877, and was not barred
by limitation. The point from which, under Act
XV. of 1877, the period of limitation was
calculated was the date of the note, and m
under Act IX. of 1871, the date of the demand.
But the provisions of § 2 of Act XV. of 1877
were intended to prevent the sudden 1
of rights of action which had arisen under the
more favourable provisions of Act IX. of 1871,
and the " shorter period " mentioned, when ap-
plied to the present and the like cases, mast,
therefore, be taken to mean not only the period
of so many years or months allowed by the
schedule, but also the point at which that period,
according to the provisions of the old Act, would
terminate, and within which, therefore,
might have been instituted under it bad it
remained in force.
The language of Acts IX. of 1871 and XV. of
1877 leads to the conclusion that by each of those
enactments the starting-point and period given
in its schedule were to take the place of those
given by the Act preceding it, in the case of all
suits instituted after the date of the Act coming
into force, and that the expiration of the period,
calculated with reference to the Act in force at
the date at which the note was executed, does
not necessarily affect the remedy. AppaSami v.
Aohilahda. Turner, C.J., and Innes, J. .XL.
Bep. 2 Mad. 118, 1879.
29. Suit for Pre-emption—Act XV. of
l&n,Sehed.II.,Art. 10- -Purchase by Mortgagee
in Possession.] In a suit for pre-emption, where
the property bad been purchased by the mort-
gagee in possession : — Held, that the purchaser
obtained physical possession of the property
under the sale, not from the date of the sale
deed, but when the contract of sate became
LnCTTATION-wnM.
ipleted ; and, therefore, the contract of sale
having been completed on the payment of the
purchase money, the suit, which was brought
within one year from ■the date of such payment,
a time. LacHhi NARAIH Lal o. Seievam.
LAL. Oldfitld and Straight, JJ I. I>.
Bep. 2 ALL 409, 1879.
80. Act XIV. of 1859, § *, CI. 10-
Promissory Note payable by Instalments — Waiver
of Default.] A promissory note, dated 2nd
April 1868, payable by half-yearly instalments,
con taineda stipulation that in default of payment
of any one instalment, the whole amount of the
principal and interest should be paid at once.
Default was made in payment of the first instal-
ment, which fell due on 2nd October 186S.
But the plaintiff alleged that about four months
after this default, the defendant made, and the
plaintiff accepted, payments on account of the
first instalment.
Default being made in payment of the second
instalment, the plaintiff brought his action on
19th October 1871, to recover the whole amount
of principal and interest due on the note.
Held, that the right to bring the suit under
Act XIV. of i8so,§i, CI. 10, accrued to the
plaintiff on the 2nd October 1868, and that,
having omitted to bring it for more than three
years, his suit was barred.
The plaintiffs right to immediate payment of
the note was not, under the note itself, subject
to be defeated by any subsequent payment, nqr
was it superseded or suspended by any fresh
agreement between the parties; nor could any
subsequent payment by the defendant (assum-
ing such payment to have been made) of part of
that for which they had already become liable,
in the absence of any fresh agreement, supersede
or suspend Such right. Ratakriskna v. Bayaji
($ Bom. H. C. Rep. A. C.J. 35) overruled.
Gumma Damesershet v. Bhiku Hahiba.,.1. L.
Rep. 1 Bom, 126, 1676,
F. B.
81. Act XIV. of 1859, 1 1, CL 12—
Mortgage Bond — Interest in Immoveable Pro-
perty.] In a duly registered mortgage bond,
dated the 21st of June 1856, the obligor cove-
nanted to repay principal moneys and interest in
jeyt 1274 F. S., and mortgaged certain specified
lands as security. The lands so pledged were
subsequently sold to the appellant in execution
of a decree obtained upon another bond made
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by the obligor, subsequent and subject to the
former. In a suit brought on the 30th August 1871
against the obligor and the appellant, to recover
the amount due on the first bond from the for-
mer personally, and also by sale of the mortgaged
land, it was contended that the suit was barred
by CI. 16, i 1, of Act XIV. of 1859 :—
Held, that the suit, being for the recovery of
immoveable property, or of an interest in
moveable property, and founded not upon the
contract to pay the money, but upon the hypo-
thecation of the land, fell within CI. 13, § I of
Act XtV. of 1859, and was not barred. Junes-
war Dass 9. Mahabeer Singh. .. L. Sep. 8
X A. 1, 187S ; I. L. Sep. 1 Cal. 163 ; 26
W. Sep. 84,
S3. Act XI7. of 1859, , 1, CI. 13-
Cltdm to Maintenance under a Will.] A suit for
maintenance and arrears under a will is not
barred after the expiration of twelve years from
the testator's death, under Act XIV. of 1859,
f 1, CI. 13, where thewillwhichconferstheright,
does not also create in the plaintiff's favour a
charge on the inheritance of the testator's estate.
By common law the right to maintenance is
one accruing from time to time according to the
wantsand exigencies of the widow. Narayan-
sav Ramchandra Pant v. Ramabai... L. Sep.
6 I. A. 114, 1870 ; I. L. Sep. S Bom. 41S ;
6 Cal. Sep. 183.
S. C. under Hindu lew- Main-
tenance of Widow, 7.
33. Act XIV. of 1859, , I, CI. 16-
Suit for Maintenance.] The provision of the
Limitation Act XIV. of 1859, applicable to suits
brought under that Act, for maintenance not
chargeable on any estate, is CI. 16 of § I, which
gives lit years from the accruer of the cause of
action, which in such cases does not arise until
there has been a demand and refusal. Kulo
NtLKANTHv. LakSHMIBAI. Wesiropp, C-J.,and
Pinkey, J I. L. Sep: S Bom. 687, 1878.
34. Act XIV. of 1859, i %-Accounts
between Merchants— Principal and Agent.'] An
agreement between a principal and agent com-
menced with an admitted balance, and clearly
contemplated the existence of an account current
between the parties, containing mutual items
of debit and credit ; and contained a stipulation
that on the adjustment of the accounts the
principal should be bound to pay such balance as
might then be found due by him. The account
LlHTrATIOK-wn/J.
was kept accordingly as a continuous account,
and contained several items which brought
down the mutual dealings to March 1868. The
agent sued in February 1S71 to recover the
balance due to him on the account 1—
Held, that the account being one continuous
account between principal and agent, with debits
and credits on each side of it, the case fell -
within § 8 of Act XIV- of 1859, and was not
barred by limitation, even as to the items which
were dated more than three years before the
institution of the suit. Watson v. Aga Mb he-
dee Sherazee...L. Sep. 1 1. A. 846, 1874.
S, C. under Account. 3.
86, Act XIV. of 1859, S i$— Juridical
as opposed to Physical Potsession — Possession by
Agent.] A|mere agent, who is put into possession
of property by bis employer upon bis employer's
behalf, cannot by merely denying his employer's
right to possession hold the property against his
employer, or under the provisions of f 15 of Act
XIV. of 1S59, turn his employer out of possession
which he has regained without committing any
act of which the agent can complain other than
that of returning upon his own property. Mad-
hub Chuhdir Giree v. Sham Chand Giree.
Markby and Milter, ]].. I. L. Sep. 3 Cal.
248, 1877.
S. C under Stat. 34 and 36 Vict.,
C. 104, § 16. 6.
86. Act XIV. 0/1859, li 20, 31— Exe-
cution of Decree for Money — Res judicata.]
The appellant obtained a decree against the
respondent on the ;th of October 1866. Subse-
quently to the decree, the respondents made
various payments on account up to October i86g.
On the 22nd of that month the appellant made
a bond fide application for execution thereof in
respect of the unpaid balance. The application
was refused by the Court which made the de-
cree, but the defendant made further payments
on account
On the 4th of May 1871 the appellant made a
fresh application for execution, which was
eventually again refused, the Chief Court of
the Punjaub holding that, the decree having
been obtained before the introduction of Act
XIV. of 1859 into the Punjaub, the case must
be governed by the provisions of§2iand not
by $ 20 of that Act : —
Held, that this order must be reversed. The
application of the 32nd of October 1869 being
bona fide, though unsuccessful, was a proceeding
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to enforce the judgment within the meaning of
f ao of Act XIV. of 1859, and, having been taken
within three years next preceding the ap-
plication made on the 4th of May 1871, such
last mentioned application was not barred by
§21 of Act XIV. of i859,and ought to have been
granted. The words in | ai of Act XIV. of
1859 " nothing in the preceding section shall
apply to a judgment in force at the time of the
passing of the Act" mean that nothing in the
preceding section should prejudicially affect thi
right of a creditor under a judgment in force a
the time of the passing of the Act ; and the
words " but process may be issued" mean that,
notwithstanding any thing mentioned in the
preceding section, execution might issue either
within the time limited by law, or within three
years next after the passing of the Act, which'
ever should first expire.
Delhi and London Banks. Or-
chard...!* Rep. 4 1. A. 127,
1877; I. L. Kep.8 Cal.
47.
S. C. under OoMtruction of Sta-
tute*. 1, and Res Judicata. 8,
87. Act IX. of l8;i, S 4— Explanation
— Petition in forma Pauperis— Act VIII, of iit.g,
% 308.] A. put in a petition to »ue in formi
pauperis for possession of certain foreclosed
property within the time specified by the Limi-
tation Act, but on failing to appear on two
occasions when called upon to give evidence as
x. the ■
ruck off so far
as the application to sue in formi pauperis was
concerned. At the instance of A. the case,
however, was again re-opened, and a date fixed
for her appearance. Two days prior to this
date, but at a time beyond the period fixed by
the Limitation Act, A. put in a petition asking
that the petition which she then made to have
her suit proceed as an ordinary suit might be
joined with her application to sue in formi
pauperis, and that the suit might be duly tried
in the ordinary way. She also paid in the re-
gular amount of stamp duty for an ordinary
suit. On the point of limitation :—Heid, that
the plaint must be considered as filed not on the
day of filing the application to sue in formi
pauperis, but on the day on which the stamp
duty was paid, and application made to have
the suit tried in the ordinary way.
UMITATIOW -contd.
The explanation to f 4 of the Limitation Act
IX. of 1871 only applies in cases where, under
I 308 of Act VIII. of i8jo, the application for
leave to sue in formi pauperis is granted, and
the application is numbered and registered as a
suit. Chundeb Mohon Rove. Bkubon Mohini
DabeA. Markby and Prinsep, JJ...L Xb R«p.
fl Oal. 889, 1877.
But set Skinner u Ordk...L. Rep. 8
X. A. 126.
Under Petition for Lemva to cue in
forma Pauperis, a.
88. Act IX. of 1871, J 10 — Express
Trust — Adverse Possession.] One G. B., a Hindu,
died on 4th February i860, having made* will,
dated 30th January i860, whereby he appointed
the defendant his executrix, and directed her to
divide whatever ready money might remain after
the payment of the legacies directed by the will
be paid, and the family dwelling-house and
other immoveable and moveable property, among
a class of persons, some of whom were not in
nnce at the date of the testator's death ; and
which bequest was therefore wholly void. (See
ase on this point under Hindu Law, Will.
4.) The defendant proved the will and took
possession of the property. In a suit brought
by the plaintiff, the testator's widow, more than
twelve years after his death, to recover from
the defendant, the executrix, the property com-
prised in the above void bequest, with the ac- "
mutations, as being the sole heiress of the testa-
r according to Hindu Law : —
Held, that the suit was barred. The bequest
the class being void, the plaintiff was, a* to
the immoveable property, entitled to immediate
tssion on the death of her husband, and the
■ of action as to such property accrued to
t that date. As to the moveable property,
>wn allegation showed that her right to
possession thereof had accrued more than twelve
years before the suit-
In a Hindu will before the Hindu Wills Act
there is no room and no necessity for the doc-
of resulting trusts, which arises out of the
ict between equitable and legal estates. The
Hindu executor takes no estate, but only a
power of management, and upon the special
purpose for which the executor is to hold the
property failing, the property undisposed of vests
ce in the heir, who can sue for it. The
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defendant's possession, therefore, was adverse
to the plaintiff from the testator's death. And
though the relation between the defendant and
the plaintiff was a fiduciary one, yet the loth
Section of Act IX. of 1871 was not intended to
comprise all fiduciary relations whatever.
The words of that section mean that where a
trust has been created expressly for some specific
purpose or object, and property has become
vested in a trustee upon trust (either from such
person having been originally named as a trustee,
or having become so subsequently by operation
of law), the person or persons who for the time
being may be beneficially interested in that trust
may bring a suit against such trustee to enforce
that trust, at any distance of time, without being
barred by the law of limitation.
The language of the section is specially framed
90 as to exclude implied trusts, or such trusts a:
the law would infer from the existence of parti
cular facts or fiduciary relations. By "specific
purpose" must be meant a purpose which has
been specified by the person who created the
tmSt. KH ERODE HONEY DoSSEE V. DoOKQAMONEY
Dossee. Garth, C.]., and Matkby, ]...!. I-.Bep.
4 Oal. 458 ; a Oal. K«p. 112, 1678.
88a. ■ Liability of Lands purchased from
a Hindu Devisee for Debtsofhis Testator— Con-
structive Notice — Burden of Proof — Limitation
Act IX. of 1S71, £ 10, Scked. II., Arts.
•33. '34—" Trust for a Specific Purpose."] Per
Ponlifex, J. — The question how far lands pur-
chased from a Hindu devisee are liable in the
hands of the purchaser for the testator's debts
stands pretty much on the same footing as a
similar question would under the present Eng-
lish law. In English law the liability did not
exist until it was expressly created by the Stat.
3 and 4 Wm. and Mary, C. 14. Prior to that
statute freehold lands of inheritance which de-
scended to the heir were, by common law, asset*
for the payment of the ancestor's debts by
specialty, as by bond or covenant in which the
heir was named. But when general testamentary
power over freehold lands of inheritance
conferred by Stat. 31, Henry VIII., C. 1, the
ancestor acquired power by disposing of the land
by will to deprive his specialty creditors of their
common law right to be paid out of it, as t
devisee was neither at law nor in equity liable
the payment of the testator's debts in respect of
the land devised ; the devisee taking the 1
limitatiok-«™w.
position as an alienee inter vivos from his testa-
tor. The heir-at-law also, to whom the lands
descended, could always defeat the creditors of
his ancestor, by alienating the lands before suit
by the creditor. To remedy this, the 3 and 4
Wm. and Mary, C. 14, f f 5 and 7, made heirs
and devisees, in case they were alienated, an-
swerable to the value of the lands so alienated,
with a saving that lands boni fide aliened before
action brought should not be liable to execution
by the ancestor's creditors. That statute was
re-enacted and extended by t Wm. IV., C. 47,
and by 3 and 4 Wm, IV., C. 104, lands were
made assets to be administered in Courts of
Equity for the payment of simple contract as well
as specialty debts; and heirs and devisees were
made liable in Equity to the same suit by all
creditors, as before the passing of the Act they
were liable to at the suit of creditors by specialty
in whicb the heirs were bound.
The result of these Acts in England has been
in effect to put a construction upon the words
" boni fide alienee before action brought," which
enables the creditors of the ancestor to follow
his lands into the possession of a purchaser from
the heir or devisee, if it can be proved that such
purchaser knew — (1) that there were debts of the
ancestor or testator left unsatisfied ; and also (x)
that the heir or devisee to whom he paid his
purchase money intended to apply it otherwise
than in the payment of such debts. But a pur-
chaser ignorant on either of these points has a safe
title, for no duty is cast on the purchaser from
the heir or devisee to inquire whether there are
any debts of the ancestor or testator, or to see to
the application of his purchase money, even when
there is an express charge of debts by the testator
on the devised estate, — at least when the devisee
is also executor ; and even when there is an express
charge of debts, the burden of proof is entirely
on the creditor to show that the purchaser from
the devisee had notice that the latter intended
to misapply the purchase money.
f n India, neither in the case of the heir nor of
the devisee has there been a direct statutory
provision, as in England, that lands may be
followed in the hands of a purchaser, unless he
is a bond, fide alienee, but that, being a principle
of natural equity, has been applied by the Courts
to the cases of purchases from Hindu heirs and
devisees, so as to make the taw in effect accord
with English law as it now exists. But there is
no authority for holding that the creditor of a
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Hindu is in any better position than the creditor
of an English
For a purchaser to be affected with construc-
tive notice through bis solicitor, who also acts
for the mortgagor, the solicitor himself must
have actual notice, and cannot be treated as
possessing the latent knowledge of bis client the
mortgagor.
Held, upon the evidence in a suit brought to
impeach certain mortgages made more than thir-
teen years before the institution of the suit, by
the executors and residuary devisees of a Hindu
testator to the defendant, that (applying the
above principles) the plaintiffs had failed to
make out their case.
field, on appeal— by White, J.,— that the will
of the testator appointing the mortgagors execu-
tors, not containing any specific bequest to them
as executors, nor any devise to them of property
for the purpose of paying debts, nor any direc-
tion for the payment of the testator's debts, and
the mortgagors not holding the residue bequeath-
ed to them in trust for any purpose, even
assuming that the mortgagors were in the same
position as English executors, who may by
their office take a property in the assets for the
purpose of applying them in the due course of
administration, yet that executors in whom a
property in the assets is vested by virtue of their
appointment, but to whom no property is speci-
fically or expressly bequeathed for the purpose
of paying debts, are not, as regards creditors of
their testator, persons in whom property is vested
in trust for a specific purpose within the meaning
off 10 of Act IX. of 1871, the words " vested in
trust for a specific purpose" in that section
being used in a restrictive sense, and limiting
the character and nature of the trust attaching
to the property which is sought to be followed.
The phrase is a compendious form of expression
for trusts of the nature and character mentioned
in Arts. 133 and 134 of Sched. II., Act IX- of
1871, via., such as attach to property conveyed
in trust, deposited, pawned, or mortgaged. Held,
therefore, that the plaintiffs suit was barred by
limitation (Art. 1 18, Sched. II, Act IX. of 1871J.
Per Garth, C J.— That even assuming that
the defendant had, at the time of the mortgages,
notice of the plaintiff's claim, yet the property
in suit could not be considered as vested in thi
defendant " in trust for any specific purpose'
within the meaning of f io of Act IX. of 1871
I^MTTATION —contd.
The words " in trust for a specific purpose" are
intended to apply to trusts created for some
defined or particular purpose or object, as dis-
tinguished from trusts of a general nature, such
w imposes upon executors and others
who hold recognized fiduciary positions. The
question could not be said to be sub-
ject to any specific trust in the defendant's hands
any more than they were in the hands of the
mortgagors, and the only trust to which they
Id be subject in their hands, was that general
it upon which a Hindu executor holds the
whole of the estate which he represents.
Lallttbkai Bapubhai v. ifantuvarbai (I. I.. Rep.
2 Bom- 415) distinguished, on the ground that
it was decided under f 2 at Act XIV. of 1859,
which contains no words restricting the scope of
the section to trusts for a specific purpose.
The plaintiff's suit, therefore, was barred by
limitation (Art. I18, Sched. II., Act IX. of 1871).
Greender Chunder Ghose b. Mackintosh...
L L. Stop. 4 0*1. 897 ; 4 CaJ. Rep. 193.
1879.
89, Act IX. of 1871, ( 1 $-Aet XVIII.
<,/lS73] Semite, that the provisions of § 15
of the Limitation Act f X. of 1871 are not appli-
cable to suits or applications under Act XVI 11.
of 1873. TlKUL Kuari v. Ablakh Rai. Tut.
nerzn&Spankie,)}...!. L. Rep. 1 All. 264,
1878.
40. Att IX. of 1871, f is" Suit"—
Application far Execution of Decree .] Held by
the majority of the Full Bench, that applications
for execution of decrees are not " suits " within
the meaning of § ij of Act IX. of 1871, and
therefore, in computing the period of limitation
for the execution of a decree, the time during
which the decree-holder was endeavouring to
obtain execution of the decree in a Court with-
out jurisdicton, cannot be excluded.
Per Stuart, C-J.— An application for execution
of a decree is a "suit" within the meaning of
§ IJof Act IX. of 1871. A suit under that section
means not only a suit or action in an exclusively
technical sense, but simply and generally any
proceeding intended and adapted to the recovery
or vindication of any right or demand or ma-
terial advantage. Jiwan Singh v. Saknam
1 Singh .,..„ I. L. Sep. 1 All. W7, 1870.
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41, Act IX. of iSjt, i i$— Proceedings
in Wrong Court, ,] Plaintiff,as payeeofan order
drawn by the defendant, at Ahmed.ib.id, where
the defendant resided, on a firm at Bankok,
Siam, and dishonoured on presentation, sued
the defendant, and an agent of the Bankok firm
who resided at Sural, in the Court of the Subor-
dinate Judge at Surat. Permission to proceed
with the suit against the defendant (the drawer)
having been refused by the High Court, the
plaintiff withdrew his plaint and filed his suit in
the Court at Ahmedabad against the drawer
The Subordinate Judge rejected the claim as
barred by limitation. Held, on appeal, by the
High Court, that whether a suit was pursued
bona fide and with diligence, must in almost
every case be a question of degree, and the same
course of action which on the part of a plaintiff
in Bombay within reach of skilled advice would
indicate bad faith or want of diligence, might be
consistent with both good faith and diligence in
a Mofussil community unfamiliar with the refine-
ments of the mercantile law and practically
inaps consilii; and, there being no reason to
suppose that the defendant had been prejudiced
by the erroneous proceedings, without laying
down any general rule, or saying that a similar
indulgence should be granted in any futurecase a
deduction might properly be allowed of the time
during which the suit was pending in the Surat
Court, such deduction to run from the filing of
the plaint to the final refusal of the High Court
to allow the suit to proceed at Surat against the
defendant. Held also that the plaintiff ought
not to have joined the drawer (defendant) and
the Bankok firm as defendants in the same suit.
Shkth Kahandas Nahandas v. Dhaiabhai.
West and Pinkey, ])...!. 1*. Bep. 8 Bom. 182,
1878.
S. C. under Hundi.
43. AeilX. 0/1871, i 20-Promiso—
Bond in Consideration 0/ barred Debt.'] It is
clear from $ 25, CI. 3, of the Indian Contract
Act (which preserves the well known rule of law
that a time-barred debt is a sufficient considera-
tion to support a contract), that the " promise "
referred to in $ 20 of Act IX. of 1S71, is. a
promise, introduced by way of exception, in a
suit founded on the original cause of action, and
not a promise constituting a 1
extinguishing the original c:
LIMITATION— contd.
suit, therefore, is not barred which is brought
on a bond executed in consideration of a barred
debt, after it had become barred. Raghoji
Bikaji v. Abdul Karim. Melmti and Kemball,
JJ I. L. Bep. 1 Bom. 090, 1870.
Followed in Chatuh Dagti v.
TUUI. Westropp, C.J., and
Melvill,} .. I. L.Bep. 2
Bom. 330, 1877.
48. Att IX. 0/1871, f 20— Acknowledg-
ment of Debt— Execution Proceedings.'] The
word "debt" in f f 20 and 21 of Act IX. of 1871,
applies only to a liability for which a suit may
be brought, and does not include a liability for
which judgment has been obtained ; therefore
when the last application for execution of a
decree had been made on the 14th December
1872, and a notice under § 216 of Act VIII. of
1859 issued on the 19th January Z873, and on
the 2gth April 1873 the judgment debtor filed
a petition notifying part payment, which petition
was signed by the judgment creditor: —
Held, in an application for execution of decree
made on the 27th April 1876, that further exe-
cution was barred by [imitation. Rally Pro-
sonno Hazra 17. Hesra Lai Mundlr.,.1. L.
Bep. 2 Cal. 468.
Followed in Munool Prashao v.
Shama RantoLahoryChow.
dhry I. L. Bep. 4 Cal.
708, infra.
44. Act IX. of 1871, J 20—Acknow-
ledgment in Writing of Debt by Judgment-
Debtor — Expired Decree."] An acknowledgment
in writing ol a judgment debt by a judgment
debtor is not such an acknowledgment as is
contemplated by Act IX. of 1871, { 20, and will
not, therefore, operate to extend the period of
limitation in favour of the judgment creditor.
The "debt" referred to in that section is not a
judgment debt, but a liability to pay money, for
which a suit can be brought.
If a decree has once been allowed to expire,
no subsequent application, though made bond
fide, can revive it. Kalty Prosonno Hatra v.
ffeera Lot Mundle (I. L. Rep. 2 Cal. 468) and
Bissessur Mullick v- Maharaja Dhiraj Mahatab
Chund (B. L Rep., Sup. Vol. 967 ; S. C. 10 W.
Rep., F. B., 8) followed Mungol Prashao
Die mr v. Shaha Ranto Laiiory Chowdhry,
Morris iiAPrittsef, JJ...I.1. Bep. 4 Cal. 708 ;
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Reversed It. Bep. 8 L A. 123; I, L. Rep. S
Cal. 51 ; 8 CaL. Bep. 113.
See Vol. 3, Col. 84?.
See KUbaudi.
Hrera Lai. Mookhopadhva r.
...LL.Bep.
4 CaL 600.
46. Act IX. of 1871, f 31— Bond—
Limitation—Act XIV. of 1859— Revival of Right
to sue by Paymtnt of Interest."] By a bond
dated the nth of March 1866, the rent of cer.
tain lands was assigned to the lender a!
security for the payment of the interest. No
date was specified for repayment of the prin-
cipal. The interest was regularly paid op tc
October 1K71. In a suit brought in June 1874
for the principal and interest due on the bond
Held by Hollovay, J.— That assuming that
the period of limitation for a suit on the bond,
under Act XIV. of 1859, was three years, and
that it had run out both before action brought,
and before Act [X. of 1B71 came into force, yet
that f 11 of that Act operated to save the action.
Act XIV. of 1859 did not destroy the right, but
only barred the remedy, so that when Act IX. of
1S71 came into force there was still a contractual
right deprived of its action, but which
any time recover it by any mode which the law
recognized, and the right of action intheprt
case was restored by the paym*ent of intere;
Held by Morgan, C.J.— No question of
tation arose. The lender was constituti
trustee and receiver of the rents and profits of
the land, for the benefit of himself and other
persons interested, and it was on an adjustment
of his accounts that the principal became
payable.
His Lordship added — " If it had been
aary to consider the operation of Act IX. of
1871, I should have hesitated to hold that
allowed a suit to be brought in any case where
the right of suit had already ceased to exist
under the old law.
" When the period appointed for limitation is,
by the law for the time being in force, complete,
the remedy by suit is gone for ever, unless the
Legislature thinks fit to make the old right again
actionable. I find no such intention expressed
in the new Act IX. of 1871. The llstandother
lections in Part III. do no more than provide for
LIMITATION- -contd.
'he mode of computation in cases where it be-
comes necessary to compute a fresh period. "
Vallia Tamburatti v. Vira RAVAN...L I:
Bep. 1. Had. 236, 1873.
46. Act IX. of I871, % 21 — Bond-
Payment of Interest —Revival of Right to sue-~\
In a suit brought on the nth of September
1S74, on a registered promissory note made on
the 9th of August 1867, payable on the loth
of April [868, it appeared that interest was paid
on the 14th November 186S and iSth April
1870.
Held, that Act IX. of 1871 was applicable to
the suit, and as that Act by § zi had made the
payment of interest a mode of extending the
period of limitation for a suit upon a boud, and
did not expressly require that the payment
should have been made after the date on which
it came into force, there was no reason why a
payment of interest before that date should not
be sufficient, and, therefore, that the suit was not
barred by limitation. Tegabava Mudau v.
MaRIAPPA PlLMI... Morgan, C.J., and Hinders-
ley,} t L. Bep. 1 Had. 284, 1877.
47. Act IX. of 1871, § 31— Payment of
Interest— Contract in Writing.'] To a suit filed
upon an account stated and signed by the defend-
ant the latter pleaded limitation. The defend-
ant had at different times made payments to
the plaintiff, in reduction of the general balance
of account against him, but without intimating
that any of such payments was to be appropria-
ted in satisfaction of the interest due on his
debt.
Held, that the plaintiff could not claim the
benefit of § 31, Ar.t IX. of 1871, as there had
been no payment of interest " as such," and that
the claim was barred.
Held also, following Amrital v. Maniklal (10
Bom. H. C. Rep. 375) that an entry of an
account stated made by the defendant in the
plaintiff's books, was not a contract in writing
within the meaning of % st of Act IX. of 1S71 .
the terms of the contract must be fully defined
in writing to render the proviso to the section
applicable ; and, therefore, that the payments
made by the defendant on account, were not
such payment of the principal of the debt due
by him as would bar the operation of the Act.
Hanmantlal Motickund o. Ramabhai. Mel-
Mi and Kembali, J J.., I. L, Bep. 3 Bom. 108,
1870.
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48. Act IX. of l87l,S 27— Interruption
of Easement.'] " By the terms of § 27 of Act
IX. of 1871, nothing is to be deemed an inter-
ruption unless the obstruction is submitted to
or acquiesced in for one year. In order to
negative submission it is not necessary that the
party interrupted should have brought an action
or suit, or taken any active steps, to remove the
obstruction ; it is enough if he has communica-
ted to the party causing the obstruction that he
does not submit to or acquiesce in it" Pet
/ifHFJ, C.J., in SlIBBRAHANIVA AvVAB B. RaMA.
Chandra Rau...I. L, Bep. 1 Mad. 336, 339,
1877.
S. C. under
49. Act IX. of 1871, Sched. II., Art.
IO— Pre-emption.] In 1861, certain property
was sold to the defendant conditionally. In
1865, the property was attached in execution of
a decree. In 1874, the conditional sale having
been foreclosed, the defendant obtained a decree
for possession. In February 1875, he obtained
mutation of names in respect of the property,
in November 1875. arrangements having been
made to satisfy his decree, the property was
released from attachment. In December 1875
■ he acknowledged having received possession of
the property in execution of the decree of 1874.
In November 1876, the plaintiff sued to enforce
his right of pre-emption in respect of such pro-
perty :—
Held, that limitation ran from the date when
the defendant obtained such possession of the
status of his conditional vendor as entitled him
to mutation of names, and to the exercise of
the rights of an owner, and that the suit was
barred by limitation. The principle laid down
in Jogeshar Singh v. famahir Singh (I. L. Rep.
1 All. 311} followed. BiJAi Ram o. Kau.it.
Turnerani Oldfield,]] I. L. Rep. 1 All.
082, 1878.
50. Act IX. of 1871, Sched. II., Art. 11
— Infringement of Patent — Suit for an Account
of Profits.'] In a suit for an account of profit!
obtained by an infringement of an exclusive
privilege, the period of limitation — the taking
of an account being only a mode of ascertaining
the amount of damages — is the same as th«
period of limitation for an action for damage!
on the same ground, »!*., one year from the
date of the filing of the plaint, nnder Act IX,
of 1871, Sched. II., Art. It, Kinmond b. Jack-
LIMITATION-Wd.
SON. Garth, C. J., and Macpherson, J...L It.
Rep. 8 Cfti. 17 ; 1 CaL Hep. 66, 1877.
61. Act IX. of 1871, Sched. II., Art. 14
•Suit to set aside a Sale— Purchase of Decree
by Joint Debtor.] M. having obtained a decree
lesne profits against the plaintiff and two
other persons, sold her rights under the decree
S , who proceeded to execute the decree
against the plaintiff's property, and that property
1, in 1870, sold in such execution, and pur-
chased by the defendant ; but in a suit brought
by the plaintiff subsequently to such sale for
declaration that S. was not the real purchaser
of the decree, but that he, S., purchased the
benami for his (the plaintiffs) co-debtors,
the Court found that $. had in fact purchased
the decree for the plaintiffs joint debtors, and
therefore that 5. had no right to execute the
le against the plaintiff's property. In a suit
light by the plaintiff, in 1874, against the
defendant to recover the property purchased by
Held, that the purchase of the benefit of if. '3
decree by the plaintiff's joint debtors did not
ffect the decree itself, though it had the legal
effect of satisfying the judgment debt which the
decree created. The order, therefore, made by
the Court in execution of that decree, and the
sale which took place under that order, were
both binding on the plaintiff until proper steps
were taken to reverse them, and the title of the
defendant who purchased under that sale was
also a perfectly good title until the sale was set
aside. That sale was not void, but only void-
able, and whatever might be the frame or lan-
guage of the plaint in the present suit, its real
object and purpose was to avoid or set aside the
because that was the only means by which
the defendant's title could be defeated, and the
plaintiff restored to his right of possession ; and
inasmuch as the suit was not brought within one
year from the date of the sale, it was barred
under Act IX. of 1871, Sched. II., CI. 14.
Abul Munsoor b- Abdul Haw id. Garth, C.J.,
and Slitter, ] I. L. Bep. 2 Cal. eB,1876.
63. Act IX. of 187:, Sched. II, Art.
It— S*it to establish Title to Prcperty ordered to
be sold in Execution.] The plaintiff's property
was sold in execution of a decree passed in a
suit to which he was not a party. The plaintiff
appeared and asked the Court to release the
property from attachment, but the Court refused
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the application under § 246 of Act VIII. of
1859, and ordered the property to be sold. In a
suit brought in 1S76, to establish the plaintiff's
title to such property : — field, that such suit was
not a suit to set aside a summary order within
CI. 15, Sched. II., of Act IX. ol 1871. If in any
case it is necessary to set aside the summary
order, the suit must be framed so as to have that
effect, and then that clause would apply ; but if
the plaintiff can get all the relief be wants with-
get that relief without regard to CI. Ij. So long
as a plaintiff does not seek to set aside the
summary order he cannot be brought within CI.
iSof Sched. II. of Act IX. of 1871. Koylask
Chunder Paul Chowdkry t. Preonath Roy
ChowdHRV. ttarkby and Prinsep, JJ L L.
Bep. 4 Cal. 610 ; 3 Cal. Bop. SB, 1878.
68. ActlX.cf 1871, Sched. II., AH.
46— Attachment of Lands under Act XXV. 0/
l86l, Chap. XXII.— Suit to recover the Lands.'
A dispute having arisen between the plaintiffs
and defendant as to the ownership of certain
lands, the Magistrate, being informed of the
dispute, held an inquiry under Chapter XXII.
of the Criminal Procedure Code of 1861 (Act
XXV.), and, finding himself unable to "decide
who was in actual possession of the lands,
attached them under § 3tC; of that Act, an
placed them in charge of the Sub- Magistrate
Held, that this was not an otder respecting the
" possession of property," but an attachment
:orded because the Mag
unable to determine which party was in posst
sion. The limitation of three years prescrib
by Art. 46 of Sched II., Act IX. of 1871, w
therefore inapplicable to a suit brought mo
than three years from the date of such order
recover the lands from the defendant, who had
obtained possession of them under a decree
obtained by him in a suit for a declaration of his
right to the lands, which decree was subsequent.
ly reversed. AkilANDAHAL 0. PERIA3AMI Pillai.
Morgan, C.J., and Kindersley, J. ..I. L. Bep. 1
Mad. 308, 1877.
M. AH IX. of 1871, Sched. II, Art.
60— Sale in Execution— Right of Attaching Cre-
ditor to Sale Proceeds— Money had and received to
the Plaintiff's Use.'] On the I2th of March 1867
the plaintiff obtained from one A', a bond charg-
ing certain immoveable property with the
payment of the debt thereby secured. Th
LmrTATIOK— amid.
plaintiff obtained a decree on this bond on the
19th of August 1871, which directed the property
to be sold in satisfaction of the charge.
The defendant, who had, on tbe 22nd of August
1 87 1, obtained a money -decree against P.., caused
the property to be attached on the 1st of April
1S72. The plaintiff subsequently caused the
property to be attached m execution of his
decree ; and the property was sold thereunder on
the 20th of July 1872. The defendant claimed
the whole of the sate proceeds by virtue of the
priority of his attachment. The Court of first
instance ordered that plaintiff's decree should
first be satisfied oat of the sale proceeds, and
'he balance paid to the defendant ; but on appeal,
the Judge, on the 7th of November 1872, reversed
the order of the Court of first instance, and de-
clared that the defendant was entitled to the
'hole of the sale proceeds. The defendant then
obtained an order directing the plaintiff to refund
the money, which was paid to the defendant on
the 26th of March 1873. In a suit by the plain-
tiff to recover the amount from the defendant by
establishing his prior right thereto, and for the
cancelment of the Judge's order of the 7th of
November 1872, alleging that it was made with.
out jurisdiction : —
Held, by Pearson, Turner, and Oldfield. JJ.,
*,hat In order to determine what period of limita-
tion is applicable to a suit, the nature of the relief
sought must be looked to. In the present case,
the principal relief sought was the recovery of
the money. Although the plaint claimed the
cancelment of the Judge's order of the 7th of
November 1872, and the declaration of the plain-
tiff's prior right, those claims were subsidiary to
the principal relief sought, and as it was alleged
In the plaint that the order Impugned was not
passed by a competent Court, it was unnecessary
for the plaintiff to claim that it should be can-
celled, but he was entitled to rely on the order
of the Court of first Instance as tbe only valid
order, and in virtue of that order to contend
that the money was wrongfully taken by the
defendant. Looking to the substantial relief
sought, the suit must be regarded as a suit for
money had and received to the plaintiff's use,
to be governed by Article 60, Sched. II,. Act
IX. of 1871. If not a suit for money hadand
received then it fell within Article 118, and in
either case was within time.
By StuaH, C.J., and Spanhie, J.— That Article
26 of Sched. II., Act IX. of 1871 did not apply
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to the case; nor" did Article 15, inasmuch a:
the order of the Judge of the 7th Novembei
1873 was made without jurisdiction (there being
no appeal to him from the order of the Court
oi first instance), and therefore a nullity.
Even it the Judge had jurisdiction, qveere whe-
ther that article would apply, as the plaintiff
asked for something more than the nullification
of the order ; nor did Article 60 apply, as the
suit was not one for money received by the
defendant to the plaintiff's use, but the suit fell
within Article 118, as being one for which no
other period of limitation was provided.
Held by Pearson and SfianUe, JJ., that the
defendant was not entitled to be first paid out of
the sale proceeds by reason of the priority of
his attachment. Ram Kishan v. Bhawani
Das L L. Hep. 1 All. 838,
1676, F. B.
B6. Act IX. of 1871, Sched. II., Art.
60— Money obtained by Fraud and Collusion.']
The plaintiff alleged that one P. had deposited
certain moneys in the Collect orate in the 1
of the plaintiff, and that the defendant ir
hision, and without the knowledge or coi
of the plaintiff, took the money from the
Collectorate on the 13th January 1809. The
suit was filed on the 2 1st January 1874:—
Held, that the suit was barred under the pro.
visions of Article 60 of Scried. II., Act. IX.
of 1B71, read as that article ought to be in con.
nect ion with English law, as being a suit for
money received by the defendants for the plain,
tiff's use. The period of limitation ran from
the time when the moneys were received by the
defendants, and not from the time of thedemand
by the plaintiff. Ragumonv Aodhikary v. Nil.
monv Singh Deo. Markby and Prinsep, ]]...!.
L. Bap. 2 Cal. 893, 1877.
B6. -Act IX. 0/ iSfr, Sched. II., Art,
J2 — Promissory Note — Demand — Novation.]
The holder of a promissory note payable on de-
mand, dated 14th April 1870, demanded pay-
ment on 8th December 1872. The maker then
paid interest in advance up to 1st April 1873, on
the condition that the holder should make no
demand until that date.
Held, that this transaction amounted to the
substitution of a new contract for that contained
in the note ; that the period of limitation must
be reckoned from 1st April 1873, and that a
suit instituted on 27th March 1876 to recover
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the balance due on the note Was not barred.
Natha Hira d. Janardhak Ramchandra-
Westropp, C.J., and Sargent, J. ..I. L. Bep. 1
Bom. BOS, 1878.
B7. Act IX. of lojuScned. II., Art.
85— Attorney and Client— Bill of Costs.] A
solicitor was retained in July 1871 to execute a
decree. In November 1871 a prohibitory order
was made in the cause, after which the solicitor
did nothing more in the matter. In June 1872
the decree- holder and the judgment debtor
settled the matters in dispute between them
without the knowledge of the solicitor, but this
compromise was not made through, or certified
to, the Court which passed the decree. In a
suit brought in December 1875 by the solicitor
against the decree-holder to recoyer the amount
of his bill of costs: —
Held, that the plaintiff's claim was not barred
by Article 8', Schedule II. of Act IX. of 1871.
Hearse. Bapu Naiecin. Westropp, C.J., and
Sargent,} I. L. Bep. 1 Bom. SOS, 1676.
68. Act IX. of 1871, Scked. II., Art.
93 — Suit to have a Deed declared a Forgery.']
During the pendency of an appeal to the High
Court, in- which one N. was the plaintiff, and
the present plaintiff the defendant, N. conveyed
by deed, dated 17th July 1864, to the present
defendant a part of the property which was the
subject matter of the suit. On a subsequent
application by the present plaintiff for leave to
appeal to the Privy Council, the present defend-
ant, in 1865, applied, on the basis of the con-
veyance to him by N. of 17th July 1864, to have
his name put on the record as one of the re*
Spondents. In a subsequent suit by the plaintiff
tohave it declared that the deed of 17th July
1864 was a forgery, brought more than three
years after the date of the defendant's applica-
tion to have his name added as a respondent on
the record of the plaintiff's appeal to the Privy
Council ; — Held, that the suit was barred under
the Limitation Act IX. of 1871, Sched. II., Art.
93, as the defendant's application in the matter
of the appeal to the Privy Council was such an
attempt to enforce the deed of the 16th July
1864, asunder that article obliged the plaintiff
o bring his suit within three years of such
ittempt- It is not necessary for the purposes
of that article that the person who is to benefit
by the instrument, should seek to obtain the
; fruits of it ; it is enough if, having obtain-
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ed the instrument, he seeks to place himself in
an advantageous position, which but for the
instrument he could not occupy. Fakharoo.
deen Mahomed Ahsan t. Poqose. Jackson
unA Tottenham, JJ...I. L.Sep. 4 Cal. 209 ; 3
Cal. Sep.678, 1678.
50. Act IX. of 1871, Sched. II., Art.
95 — Suit for Possetsion — Fraud. ■] Article 95 of
Schedule II., Act IX. of 1871, does not apply to
suits for possession of immoveable property
when fraud is merely a part of the machinery by
which the defendant has kept the plaintiff out of
possession. That article has reference to cases
where a party has been fraudulently induced to
enter into some transaction, execute some deed,
or do some other act, and desires to be relieved
from the consequences of those acts. Chundek
NaTH ChOWDHRY 3. TlRTHANAND ThAKOOR.
Jaciscn and Cunningham,]] I. L. Sep.
3 Cal. 004 ; 3 Cal. Bop. 147, 1S78.
60. Act IX. of 1871, Sched. II., Art.
too— Suit for Contribution.] Quart— Whether
in a suit for contribution, on the ground that the
plaintiffs and defendants were jointly liable under
a decree, in execution of which the plaintiffs'
property alone was sold, the limitation prescribed
by Art. too, or that prescribed by Art. 1 18, of
Schedule II., Act IX. of 1871, is applicable.
The cause of action in such a suit arises when
the sale proceeds are drawn out of Court by the
decree-holder, and not on the date of the auction
sale. Fuckorudeen Mahomed Ahsan v Mom.
ma ChunderChowdhry. Hitter and Maclean,
JJ I. L. Rep. 4 Cal 629, 1878.
61. Act IX. of 1871, Sched. II., Art.
113— Specific Performance—Trust— Laches.]
i86o, certain shares in a company then formed
were allotted to S., on the understanding, as the
plaintiffs alleged, that lio of such shares should,
on the amount thereof being paid to S-, be trans-
ferred to, and registered in the books of the
company in the names of, the plaintiffs. In 1S63
the plaintiffs completed the payment to I
respect of the shares, and during his life-
received dividends in respect of the said sh;
S. died in 1870, leaving a will, probate of w
was granted to the defendant as his execi
In a suit brought by the plaintiffs after demand
of the shares from the defendant and refusal by
him to deliver them, to compel the defendant
to transfer the shares to the plaintiffs and regis-
LXmXATIOTit-cor.tJ.
them in their names, the plaintiffs' case was
that the shares had been held in trust for them,
and that, consequently, their suit was not barred
by lapse of time 1 —
Held, that the transaction between 5. and tbe
plaintiffs did not amount to a '< trust for any
specific purpose" within the meaning of § 10 of
Act IX. of 1871, or to a trust at all, but to an
agreement of which the plaintiffs were entitled
to specific performance; and the limitation
ipplicable was that provided by Act IX. of 1871,
Sched. II., Art. 1 13, and the suit, therefore, was
t barred. Nor were the plaintiffs disentitled
relief by reasons of any laches or delay in
biinging the suit. Ahmed Mahomed Pattel
Ad]eih Dooplv. Garth, C.J., and Milter, J...
I. L. Sep. 2 Cal. 333, 1876.
62. Act IX. of 1871, Scked II., Art.
11 — Decree against a Sirdar — Execution a gainst
his Heir, nho is not a Sirdar— Decree directing
Gradual Payments— Limitation— Suit on ajudg.
men!.] In 1848, the plaintiff's father obtained
in the Court of the Agent for Sirdars a decree
against the defendant's grandfather, a Sirdar of
the third class. The decree directed that the
amount awarded might be paid up at once, or
realized year by year by appropriation of the
Sirdar's share in the village of Wada. Theeie-
cution proceeded on the footing of the latter
alternative, and the Sirdar paid his share regu-
larly till his death in 1862. His son, who suc-
ceeded him, also paid in the share to the plain-
tiff till his death in 1867.
The defendant, the grandson of the judgment-
debtor, was not a Sirdar, and the Agent, there-
fore, had no jurisdiction over him, but the exe-
cution proceeded on the same footing as before,
through the Subordinate Court of Khed, till 1876,
when the District Judge pronounced all the pro-
ceedings taken since 1S67 to be irregular. In
1877, the plaintiff filed the present suit, based on
the decree of 1848: —
Held, that Art. in of Sched. II. of Act IX. of
1871, which prescribes to a suit on a judgment
a limitation of twelve years from the date of the
judgment sued on, applied ; but that the decree
must be treated as analogous to a decree payable
by instalments, and be held as one made, be-
cause then first operative, in 1867, as to all
future proceeds of the village. In the case of a
decree payable by instalments, as the command of
the Judge prescribes a term for the perfor
of the several parts of his order, it is to be c
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strued bs becoming a judgment for purposes of
limitation, as to each instalment, only on the
day when the payment is to be made. Sakha,
ham Dikshit v. Ganesh Sathe. West and
Pinhey, JJ X L. Rep. 8 Bom. 183, 1879.
68. Act IX. of 1871, Sched. II., Art.
122— Will—Residuary Estate of Moveable and
Immoveable Property.] "Apart from authority, f
should have had considerable doubt as to whether
the word ' legacy,' even in CI. 123 of the Indian
Limitation Act, applied to a share of residue, the
words ' distributive share' in that clause presum-
ably applying to undisposed. of estate only. But
in Prior v. Hornibtoa <2 V. & C. Ex. Rep. 200}
Baron Alderson unhesitatingly decided that the
word ' legacy' in 3 and 4 Wm. IV., C. 27, § 40.
included a share of residue. This seems to have
been rather a forced construction, for two reasons
— first, because a share of residue is not, like a
legacy, a liquidated amount, but may depend on
long and complicated accounts; and, secondly,
because the English statute clearly does not
provide for the analogous case of a demand by
next of kin for a distributive share against an
administrator." Then, after noticing the remarks
of V.-C Knight Bruce infants v. Barry (2
Collyer 285, p. 293) On Prior v. Homiblow, his
Lordship proceeded: — "But Prior v. Horniblow
has never been overruled, and in fact it may be
said to have obtained legislative sanction, inas-
much as by i 13 of 23 and 24 Vict., C. 38, claims
of next of kin against administrators are barred
in the same way as legatees under the former
statute. I am bound, therefore, to hold that CI.
132 of Sched. II. of Act IX. of 1871, which
applies not only to a legacy, but, also to a distri-
butive share of the immoveable property of a
testator or intestate, includes a share of the
residue of a testator's moveable property. CI.
122, however, applies only to moveable property.
Trbepoorasoondkb Dossee it. Debkndronath
Tagore. Pontifex, J... I. X. Rep. 3 Cal. 46,
1876.
S. C undtrCertiflcateto collect Bebts.
2.
64. -Ad IX. of 1871, Scked. 11., Art.
123 — Suit for Dharmakartaskip of Pagoda —
Account.] M., the founder of two pagodas,
died in 1795, leaving six sons, of whom C. and
T. were two. T%1 the younger, died in 1834, leav-
ing two sons, one of whom, A,, who died in
1853, was the father of the plaintiff. C. died in
UMITATION-wnW.
816, leaving two sons, M., who died in 184O,
nd I.., who died in 1847, and two daughters, A.
and R., the defendant's mother. The office of
matarla descended from Itf.to C, after « hose
death in 1816 a manager was appointed by the
Collector, and C.'s son M. was dispossesed by
nele T., and in 1834 SI. brought a suit in
equity against T. and his sons. Pending a
:nce to the Master, the Supreme Court
made an order to the effect that M. was to exer-
the functions of a dharmakarta subject to his
accounting under the final decree. That final
:e was never passed, and the suit abated on
the death of M. in 1840. M. was succeeded in
the office of dharmakarta by bis brother £., who
"it till 1S47, when he died leaving it by will
3 sister A. and her husband R. jointly. R.
died soon afterwards, and A. died in 1 872, leav.
ing the office by her will to her sister's son, the
defendant.
The plaintiff, as eldest surviving male member
of the founder of it's family, claimed the office
of dharmakarta, and prayed that if he was not
titled to the office, some proper person might
be appointed to it, and that an account might
be taken of the pagoda property, and also
.gainst the defendant as executor of A. of
whatever might be due by her estate to the
pagodas : —
Held, that the act of L. leaving by his will
this hereditary office to A, and her husband, a
stranger to the family of the founder, was an act
of a character unequivocally hostile, and as the
will was acted upon at once by the devisees, the
survivors of T.'s branch, including the plaintiff,
must have had full notice that exclusive posses-
sion had been taken of the office to the preju-
dice of their rights, and that A.'s holding up to
her death was a holding hostile to the rights of
the male survivors, and the suit, therefore,
against the defendant, who claimed through A.,
was barred by Act IS. of 1S71, Sched. II., Art.
123.
Held, also, that as § 29 of that Act absolutely
extinguishes the right after the determination
of the period limited for instituting a suit of this
kind, and as long before A.'z death the plaintiff's
right must have been absolutely extinguished,
he could not set up a fresh right as accruing to
him as the only male survivor of the founder's
family on A.'s death.
Held, also, that (be plaintiff, having no longer
any title to the property, was not in a position
by Google
DIGEST OF CASES.
LIMITATION— contd.
to treat the defendant as a trespasser, and call
on him for an account of the past administration
on that footing ; and the suit being substantially
a suit Jo remove the defendant from the trust,
and to establish the plaintiff's title to the here-
ditary office, or (on failure of plaintiff to estab-
lish the title) to secure the appointment of I
a fit and proper person to fill the defend;
office, and the account being prayed for only on
that understanding, the plaintiff was not entitled
to call for an account of the past administration
of the trust, as a person interested in the religi
ous trust. Manallav Chenna Kesavaraya v
VaidbLINgA. Innes and Busteed, JJ-.X X. Bep.
1 Mad, 343, 1877.
65. Act IX. of 1871, Sched. II., Art. 127
— Suit by Hindu excluded from Joint Family
Property.] In a suit by a Hindu excluded from
joint family property, to enforce a right to share
therein, brought before the 1st October 1877.
the period of limitation must be computed, under
Art. 127, Sched. It., Act IX. of 1871, and not
under Art. 143 ; i. ft, from the date when the
plaintiff claimed and was re/used a share, and
not from the date of exclusion. Kali KiSHOfte
Roy o. Dhununjoy Roy- Garth, C. J., and
Birch, J I. L. Bop. 3 Cal. 228, 1877.
S. C. under Appeal— Civil. 6.
66. Act IX.of 1871, Sched. II., Art. 129
— Adoption.'] In a suit brought by the plaintiff
to recover possession of certain property, to
which he alleged that he was entitled as joint
heir with his deceased brother D., against the
defendants, claiming under the widow of the
said D., It appeared that the widow had, in 1851,
executed a putnce lease in favour of one R. S.,
but without any justifying necessity for borrow-
ing the Sum of money for which it was granted,
and that she had executed, in i860, a deed of
adoption by which she professed to adopt the
defendants in pursuance of the permission of her
husband, and to make over to them her property.
But the gift was not to take effect till her death,
possession being retained by her during her life-
time. It was admitted by the defendants that
this document could not be seriously treated as
an attempt on the part of the widow to adopt
heirs to her husband, but was merely an adoption
of heirs to herself, and in fact a disposition of
her property, very much in the nature of a will,
to them after her death. Part of the plaintiff's
claim was that the above putnce lease be set
aside, and the deed of adoption cancelled.
LIMITATION-™^.
Held, that the widow having no more than a
Hindu widow's estate, the putner could only bind
her life interest, and as to the latter part of the
claim, a question having been raised concerning
the Limitation Act IX. of 1871, Sched. II., Art.
1 29, whereby it is enacted that with respect to a
suit to establish or set aside an adoption, the
time when the period of limitation begins to run
is the "date of the adoption, or (at the option of
the plaintiff) the date of the death of the adop-
tive father" -.—Held, that on the above view of
the document, the provisions of the statute
would scarcely seem applicable to it; but that
the provisions in the Limitation Act relating to
adoption, though it might bar a suit brought
only for the purpose of setting aside the adop-
tion, does not interfere with the right which, but
for it, a plaintiff has of bringing a suit to recover
possession of real property within twelve years
from the time when the right accrued, and that
their Lordships regarded as the nature of this
suit. Raj BahadoOX Singh v. Achumbit Lai..
L. Eep. 6 I. A. 110 ; 6 Cal.
Bep. 12, 1879.
67. Act IX. of 1671, Sched. II., Art.
•57 — Execution of Ex. parte Decree.] Notice
of execution of decree is not sufficient " process
for enforcing" it within the meaning of Art.
157 Sched. II. ofActlX. of 1871. Such pro-
cess means actual process by attachment in
execution of the person or property of the
debtor. Obkoychurn Dutt v. Mudoosudan Chcrm-
dhry (5 Wym. 172) not followed. PrOsohno
ChunoebCoondoob. Prosonno Coomar Sik-
t. Pontifex, J I.|L. Bep. 2 CaL 123,
1876.
68. Act IX. of 1871, Sched. II., Art.
— Application for Restitution by person dis-
possessed.] In calculating the period of limita-
tion prescribed in Sched. II. of Act IX. of 1871,
for applications as well as for suits and appeals,
the day on which the order or decree appealed
against was made should be excluded.
Therefore, where a person having been dis-
possessed of property held by him under a
mortgage on the 14th December 1875, applied
on the 14th January 1876 for the restitution,
the 13th having been a Court holiday, it was
held that his application was within the liraita-
of thirty days prescribed by Act IX. of 1S71,
Sched. II., Art. 158. Gujar v. Barve. West,
and Pitthey, jj.,.1. L. Bep. 2 Bom. 673,
1878,
DigitlzSdbvGoogle
( »1 >
DIGEST OF CASES.
LIMITATION- -amid.
69. Act IX. of 1871, Scktd. II., Art.
166.] Limitation Acts, being restrictive of the
ordinary right to take proceedings, must, where
their language is ambiguous, be construed strict-
ly, 1. e., in favour of the right to proceed.
A. as purchaser of a decree against B. applied
for execution thereof, and having caused five
fields of B. to be sold in execution, purchased
four of them at the Court sale, and one from an
execution purchaser. On the 10th July 1871,
the High Court, in a Miscellaneous Special
Appeal by B., held A.'s application for execution
to have been time-barred, and reversed the
orders of the lower Courts. A. having been put
in possession of the fields under the order of the
lower Courts, B., on the reversal of (hose orders
by the High Court, applied, on the 9th July
1874, to have the fields restored to him, together
with mesne profits accruing during the time of
his dispossession. The first Court awarded the
fields to B. with mesne profits ; but the District
Judge, on appeal, held B.'s application barred
by Act IX of 1871, Sched. II-, No. 166.
Held, that the exception in that number is
not restricted to any particular species of
appeal ; that B.'s application fell within No.
167, and not within No. 166 of the Limitation
Act of 1871, and was, therefore, not barred
Umiashankar Lakhuiram v.Chotalal Vaje-
RAH. Westropp, C.J., and Kemball, J. ..I. L.
Bep. 1 Bom. 19, 1875.
70. Act IX. of 1871, Sched. II., Art.
167 --Execution of Decree— Application.] An
application was made in February 1868 to the
Subordinate Judge by the plaintiffs, for execu-
tion of a decree (payable by instalments),
obtained by them against the defendants in
August 1867, by attachment of certain property
in the Collector's hands, to which one of the
defendants was entitled ; and a notice was issued
to the Collector under , 337 of Act VIII. of
1859, in accordance with an order indorsed on
the application. A long correspondence ensued
between the Collector and the Subordinate
Judge, which resulted in the Collector paying,
out of the moneys in his hands, the principal
sum, and a portion of the moneys claimed by
the plaintiffs, on the 10th September 1873.
Meantime, and while the correspondence was
going on, the plaintiffs, on 30th September 1871
presented an informal application to the Subor-
dinate Judge, praying him to overrule the Col-
li IMITATION— contd.
lector's objections and enforce execution of their
decree, but no order was passed on it.
On the 19th October 1873, the plaintiffs pre-
sented a fresh application for enforcement of
their decree in respect of the recovery of the
interest that had accrued on it since the date of
the application of February [868.
Held, that though proceedings sufficient appa-
rently to bar limitation under Act XIV. of 1859
were going on, under the application of February
1868. down to the 30th September 1871. yet the
application made on that day was not one which
could bar limitation under Act IX. of 1S71,
being merely a request or suggestion that the
Collector should be directed to carry out a direc-
tion sent to him in 1868 in a particular way ; but
that even if it had been an application which in
itself could serve as a bar to limitation, it was
then already too late on the day when it was
made, which was more than three years after
February 1868, the last prior .application for
execution.
Held also, that though interest was awarded
by the decree, it was not intended by Act IX. of
to keep a decree perpetually in force with-
out renewed applications, and therefore that the
present application was barred. Jibhai Mahi-
v. PaRBHU Bapu. West and If. Harridas,
jj I 1, Bep. 1 Bom. 69, 1875.
71. Act IX. of 1871, Sched. II., Art.
67 — Decree payable by Instalments.'] A decree
payable by instalments with a proviso that the
whole amount of the decree shall become pay-
able at once in default of the payment of any
instalment, is barred if application for execution
3e not made within three years from the date on
which any one instalment became due and was
The payment of instalments subsequent to
default in payment of the first instalment on the
date specified, does not give (hejudgment-credi-
.1 fresh starting-point. Dulsook Rattan,
chand «. Chugon Narrun. Westropp, C. J.,
and Mehill,]...!. L. Bep. 2 Bom. 866,1877.
71a. Ad IX. of 1871, Sched. II., Art.
[67— Execution of Decree payable by Instal-
ments-] Under the terms of a decree dated the
6th April 1866, payable by instalments, all pay-
is were to be endorsed on the decree, and if
the judgment -debtor failed to pay two instal-
roents in succession, the decree-holder was em-
powered to enforce payment of the whole amount
D.grt^dbyGOOgle
(
)
DIGEST OF CASES.
LmiTATIOK-ronW.
due under the decree. The decree -holder, al-
leging that he had received all but Rs. ioo, being
a portion of the instalment for 1875, and Rs.
250, the whole of the instalment for 1876, appli-
ed on the 17th July 1877 to recover Rs. 350 by
execution of the decree. It appeared that the pay-
ments which had been made under the decree,
had been endorsed on the copy of the decree in
the decree- holder's possession. The judgment-
debtors contended that those payments, having
been made out of Court, could not be recogniz-
ed, and that it must be therefore taken that there
had been default in payment of the first two
instalments, and that, the decree-holder not
having applied for execution within three years
from the time when those instalments fell due,
the present application was barred ; —
Meld, by Pearson, J., that the above contention
was quite untenable. The decree -holder's omis-
sion in 1869 and 1870 to avail himself of his
tight to realize at once the entire amount of
the judgment debt might possibly preclude him
from now enforcing that right, but by fore-
going or forfeiting that right he had not lost
his right lo the instalments annually falling due.
It was immaterial whether former instalments
had been paid or not, and the non- recognition
of those payments did not exclude the present
application from the operation of Art. 167, Sched.
II., Act IX. of 1871, and it was therefore in
Spankie, J., on the facts found by the lower
Court, that there had been no such default
that referred to in the decree in the payment 0^
instalments, refused to interfere with the judg"
ment of that Court that the application was in
time. Kanchan Singh v. Sheo Prasad...I. IV
Rep. 2 All. 292, 1679.
73. Execution of Decree payable by
Instalments, Whole to fall due on any one De-
fault— Acknoviledgment ] Where a decree was
made payable by instalments with'a proviso that
in the event of default in payment of any instal-
ment, the decree should be executed for the
junt ;-
Held, that the decree-holder was strictly
bound by the terms of the decree, and not having
applied for execution of the whole decree within
three years from the date of the first default,
execution of the decree was barred.
Held also, the judgment debtor having more
than three years after the first default acknow.
LIMITATION-rtn/rf,
ledged, in writing under his signature, his
ibility under the decree, that, the decree being
already barred, such acknowledgment did not
create a new period of limitation. Shjb Dat 0.
Kalka Prasad. Spanh'e and Straight, JJ..X
L. Eop. 2 AIL 448, 1879.
7S. Act IX. of 1871, Sched. II; Art.
6^Execution of Decree— Reversal of Salt tf
Land sold in Execution of Decree, Effect of-] A-
obtained a decree against B. on the 21st June
and applied for execution on the lOlh July
following. On the 2nd October of the same
year property attached under such execution
is sold, and the sale proceeds being paid over
A., the execution proceedings were struck off
the file on the aSthJuly 1872. On the 14th May
S73, B. obtained an order setting aside the sale,
and for a refund of the sale proceeds. A. there-
the 22nd December 1874, again applied
for the execution of his decree.
Held, that such application was in substance
mply an application to the Court to continue
the proceedings already commenced by the ap-
plication of July 1871, and that it did not, there-
e within the provisions of Art. 167,
Sched. II., Act IX. of 1871, and was not barred.
IsSUree Dassee v. AbDoOL KhaLak, Hitter and
Maclean, JJ...X. L. Rep. 4 Cal. 415 ; 3 Cal.
- Rep. 46, 1878.
74. Act IX. of 1871, Sched. IJ-, Art.
id-]— Execution of Decree- Proceeding to en-
force.] The plaintiff sued the defendant on a
bond hypothecating a Xtta-bisica share of a
certain village, and on the 23rd of March 1871
obtained a decree. The 21st of August 1871
was, on an application made on the 10th of
June 1871, fixed for the auction sale of the
property, but on the objection of D. the pro-
perty was released from attachment on the 16th
of August 1871, on the ground that D. had
already purchased the property at a sale in exe-
cution of another decree. The plaintiff then
sued D. to bring to auction sale a seren-bisma
share out of the ten-i/jura share purchased by
D., and on the 10th of August 1872 obtained a
decree. On the 25th March 1875 the plaintiff
applied for execution of the decree of the 23rd
o( March 18J1 against the defendant. The
application recited the whole previous proceed-
ings, and simply repeated the prayer for execu-
tion of the decree which was made on the loth
of June 1871 ;-
Digitized byGOOC^Ie
DIGEST OF CASES.
LIMITATION— contd.
Held, by the majority of (he Full Bench, that
the execution of the decree was not barred.
The application of the 25th of March 1875 was
not a new or fresh act, but was in legal con-
tinuance of the application of June 1S71 to
carry out the order, which as against the defend-
ant had become final, and af which the prose-
cution was interrupted by the illegal interven-
tion of D. and the allowance at his objection
since disallowed.
Per Pearson, J.— The application of the 25th
of March 1875 might be regarded as an applica-
tion to proceed with the former application of
the 10th of June 1871, the proceedings under
which were interrupted by D.'s intervention, but
if so regarded, it was ^:ill In substance and effect
an application for the execution of the decree of
the 23rd March 1S71, and Art. 167, Sched. II.,
Act IX. of 1S7I applied, and required that it
should have been presented within three years
from the date of the former application, and it
was therefore barred. Paras Ram 1. Gard-
ner I. L. Rep. 1 All. 386, 1877.
75, Act IX. of 1871, Sched. II., Art.
167— Joint Decree— Application for Partial Exe-
cution.'] An application for the partial execu-
tion of a joint decree is not an application
according to law, and has not the effect of
keeping the decree alive for the whole body of
joint decree- holders.
Therefore, where a decree of the Sudder
Court, dated the 31st of March 1S64, gave costs
in the Court of first instance to certain of the
defendants, among whom was one A., separately,
and to eight sets of defendants collectively, and
costs in the Sudder Court to three sets of
defendants ; and the only applications for
execution of this decree were in 1871 by A.
alone, to recover his costs in the Court of
first instance, and a fractional share of the costs
in the Sudder Court awarded to his set of
defendants: — Held, that an application for exe-
cution of the Sudder Court's decree made by all
the defendants on the 20th of May 1S75 was
barred. Rah Autaru. Ajudhia Simuh. Stuart,
C.J., and Pearson, J I. L. Bap. 1 All. 331^
1876.
7«. Act IX. of 1871, Sched. II., A>
1*7 — Execution of Decree — Final Decree of
Appellate Court.] In a suit for possession of
land and for mesne profits, the Court of first
instance gave the plaintiff a decree for pos.
LIMITATION-MUM.
1, bnt dismissed the claim for mesne
profits. On appeal, the Jndge confirmed the
decree for possession, and remanded the case
under i 351 of Act VIII. of 1859, to determine
>t of-mesne profits due to the plaintiff.
The Court of first instance gave the plaintiff a
decree for a certain amount of mesne profits.
Subsequently a special appeal was preferred to
the High Court against the Judge's decree. Pend-
' ig this appeal, an appeal was presented to the
Judge from the decree of the Court of first
nstance for mesne profits, and on the 7th of
une 1873 the plaintiff again obtained a decree
or mesne profits. Finally, on the 6tli March
874, the High Court modified thejudge's decree
for possession, but did not interfere with the
order of remand :—
Held, on the plaintiff's applying for execution
of the Judge's decree of the 7th June 1S73, that
iitation ran from the date of the final
of the High Court, which was " the final
decree of the Appellate Court," and the only
final decree " within the meaning of Act IX. of
1S71, Sched. II., Art 167. Imam Au s. Da-
iAUNCHi Ram. Stuart, C.J., and OMJietd, J...L
L. Rep. 1 AIL 60S, 1877.
77. Act IX. 0/1871, Sched. II., Art.
167— Application to enforce or keep in force the
Decree— Act VIII. of 1859, J 285.] Held, that
application under f 285 of Act VIII. of 1850,
being a necessary and decided step towards the
rxecution of a decree, was an application to
enforce or keep in force the decree within the
meaning of Act IX. of (871, Sched. II., Art.
6;. Husain Baksh v. Madgb ..I, L, Hep. 1
AU. 686.
78. Act IX. of 1871, Sched. II., Art.
67— Execution of Decree— Application to en-
orce or keep in force a Decree.] Held by the Full
Bench, that the date on which an application for
the execution of a decree is presented, and not
any date on which such application may be
pending, is the "date of applying" within the
meaning of Art. 167, Sched. II. of Act IX.
of 187 I.
Held by the Division Bench {Stuart, C.J., and
7"*™**, J.), that an application by a decree -holder
for the stay of execution proceedings is not an
application to enforce or keep in force the de-
cree, within the meaning of the same law.
Fakir Muhammad * Grui.au Husain..,!. 1.
Rap. 1 All. S80, 1878.
D,gltlzed by G00gle
(
>
DIGEST OF CASES,
( 908 >
LTMJUATJO'S-ontd.
70. Act IX. of 1871, Sched. //..Art.
167— Execution of Dccrteon Specially Registered
Bond— Act XX. »/i866", §552, 53.] JiVM that
Art. 167, and not Art. 166, of Sched. II., Act
IX. of 1871, applies to an application for the
execution of a decree made under the provi
of S S3 of Act XX. of 1866 on a bond specially
registeredundertheprovisionsof ( ;-j of that Act.
Jai Shankar v- Tkti.bv.,,1. X,. Rep, I All.
630, 7. B., 1878.
80. Ait IX. of 1871— Sched. //., Art.
167— Execution of Decree — Application to en-
force or ieef in force a Decree— Act V/U. of
1859, f,f zii, 2)6.] On the 3rd of March 1875
a decree-holder applied for the execution of his
decree, the application containing in a tabular
form the particulars required by § 2|2 of Act
VIII. of 1859, with the exception of the mode in
which the assistance of the Court was requi
vis., whether by the arrest and imprison n
of tbe judgment debtors or the attachment of
their property. The application prayed that
notices night be issued to the judgment debtor
under § 216 of Act VIII. of 1859. On the 20th
of March 1875 the Court ordered notice
issue, and notices were issued on the 28th of
March 1875. On the 27th of April 1875 the
execution case was struck off the file, on
ground that the execution creditor did not wish
to take further proceedings. On the 30th of
April 1S77 the decree-holder applied for execu.
lion of the decree by the arrest and imprison-
ment of one of the judgment debtors : —
Held, by Pearson and CXdj!rld,]},,—ist, that
the date of the notices issued under ( 216 of
Act VIII. of 1859 gave a period from which the
limitation would run, although the application
on which they were issued may have been not
strictly in the fonri required by | 212 of Act
VIII. of 1859.
Held also, that the application for the issue
of notices under f 216 of Act VIII. of 1859,
though not an application on which such notices
could properly issue, because informal, was still
an application to keep in force the decree with-
in the meaning of Art, 167 of Sched. II., Act.
IX- of 1S71. AH Uiat the law requires is that
there should have been an application with the
object of enforcing or keeping in force the de-
cree. If the application is such as to show that
it was made with that object, though informal
it will be an application within the meaning
LIMITATION— contd.
of the taw of limitation. Franks v. Nunth Ifal
(H. C. Rep., N. W. P. 1875. p. 79,) dissented
Held by Span/tie, J., contra.— Where no appli-
cation for execution has been made within three
years from the date of the decree, tbe decree-
holder cannot fall back on the notice issued
under { 216 of Act VIII. of 1859. If the appli-
cation under { 212 of that Act were bad, the
Court had no power to issue the notice, the
mere issue of which could Dot be. regarded as
giving the decree-holder a fresh period of limi-
tation. Beharj Lau ti.SiLiK Ram.-I. L-Kep.
1 AIL 675, 1878.
81. Act IX. of 1871, Sched. I/., Art.
167 — Execution of Decree passed before Act
IX. of 1871 fame into force.] In 1.875 tnR
decree-holder sought to execute a decree in a
suit instituted before Act IX. of 1871 came into
operation, tbe last application for execution
having been made more than three years before
the present application ; —
Held, that in all matters of substantive law,
the taw of limitation in force at the period of the
arising of the right governs. In all cases of
adjective law, the law of limitation in force at
the period of enforcement govern execution in
proceeding to enforce a decree of a Court, and
lines under the head of purely adjective law.
Therefore the law prevailing at the time o( the
application, vis-. Act IX. of 1S71, governed the
case, and the proceeding was barred. Pasupa-
Latchhia v Pasupati Musambkattu...
HoUoway and Kimferdey, JJ L Ii. Be?.
1 Mad. OS, 1876.
89. Act IX. of 1871, Schtd. II., Art.
167 — " Suit"— Application for Execution of
Decree.'] Per Gartk,C.}.,Markbyiitc\AinslU,]].
{Kemp and Macpkerson, JJ., not concurring.) —
The periods of limitation prescribed in Sched.
II. of Act IX. of 1871 are to be computed
ibject to the provisions contained in the body
of the Act, and must be read together with it
for all purposes of construction.
It was obviously the intention of the Legisla-
re to give a decree-holder three years, and
it less than three years, from the time of his
former application for the execution .of his
decree, for the purpose of making a fresh one.
And the only way of carrying out that intention,
and putting a reasonable construction on tbe
Act, is by excluding the day on which the
D.gmzed by G00gle
DIGEST OF CASES.
( 910 )
UXttATlOV—contd.
former application was made from the compu-
tation of the three years.
An application, therefore, made on the Sth
January 1875, to execute a decree, the last
application preceding having been made on
Sth January 1S72, was held to be within the
time allowed by Art. 167, Sched. II., Act IX.
of 1871.
Per Curiam.— The word " suits" in Act IX. of
1871 does not include "applications"
peals." Dhonessur Kooer ». Roy Goodkr
Sahov...I. L. Rep. 3 Cal. 336, 1877, F.B.
88. Act IX. of 1871, Sched. II., Art.
\6T-"Applying to enforce a Decree"— ■" Afpli
cation" to keep the Decree in force— Act VIII. of
(859,51:2.] "Applying to enforce a decree'
in Art. 167 of Sched. II., Act IX. of 1871, mean:
tbe application (under | 213 of Act VIII. ol
1859 or otherwise) by which proceedings ir
execution are commenced, and not application:
of an incidental kind made during the pendency
of the proceedings.
In cases governed by Act IX. of 1871
decree. holder who has applied to the Court
slmpliciter " to keep the decree in force" may,
within three years from tbe date of such last
named application, obtain execution of his
decree. ChundsrCoouarRovv. Bhacobutty
Prosonno Rov.-.I. L. Rep. 3 CaL 335 ; 1
Cal. Rep. 23, 1877, F.B-
84. Act IX. of 1871, Sched, Il„ Art,
167 — Execution, of Deere* — Application for.']
On the presentation of the last of a series of
applications for the execution of a decree, the
Court is competent to consider the question
whether on the date of making a prior applica-
tion for execution, tbe decree sought to be
enforced was barred by limitation, and that
notwithstanding the fact that notice of such
prior application had been served on the judg-
ment,debtoi under ( 216 of Act VIII. of 1859.
" The time prescribed by the Limitation Act
IX- of 1871 within which applications
turn of decrees may be made, governed all such
applications made during the time that Act
Bemul Dan V. Ikbat Narain (25 W. Rep. 249)
followed. Uhnoda Persad Roy v. Sheikh
Koorpan Ally. Kemp and Morrie, JJ ..I. L.
Rep. 3 Cal. 518 ; 1 CaL Rep. 406, 1878.
LIMITATION -conld.
— Act IX. of 1871, Sched. II., Art.
167— Execution of Decree— Application to enforce
keep in force.} Tbe plaintiff having obtained
decree on the 1st August 1S64 against the
defendant, applied for execution thereof on the
id of January i860. On the 22nd of Novem-
ber 1870, the plaintiff made a second application
sell the defendant's right, title, and interest
certain specified lands, but on the interven-
tion of third parties those lands were released
rom attachment. On the 6th jo December
871 the plaintiff sued for, and on the 2nd of
April 1872 obtained, a declaration of the right
of his judgment-debtor, the defendant, to the
lands attached. On the 6th of September 1S73,
more than three years after the date of bis first
applicationfor execution, the plaintiff applied for
of the decree, against certain property
of the defendant other than the property the
subject of the regular suit The application
contained no reference to the properties which
were the subject of tbe regular suit, and the only
paper filed with the application was the original
decree of the 1st of August 1B64, and the sub.
sequent orders of the Judge and High Court
confirming that decree: —
Held, that the application was barred by limi-
tation. The application of the 22nd of Novem-
ber 1870 was not an application " to keep in
force" the decree within the meaning of Art. 167,
Sched. II. of Act IX. of 1871, but being an ap-
plication for sale of properties already under
attachment, under an order issued on the appli>
of tbe 2nd of January 1869, it was an
application to enforce the decree, and not one
merely to keep the decree alive in the sense
intended by the decision in Chunder Coomar
Roy v. Bhuggobutty Prosonno Roy (I. L. Rep. 3
Cal. 235 ; S. C 1 Cal. L. Rap. 33). And tbe
application of the 6th September 1673 could not
be treated as an application to revive and con.
tinue proceedings instituted on the previous ap-
plication of the 2nd of January 1869. Ram
Soondbr Sahdyal v. Gopessur Mostopxe,
Kemp and Bern's, JJ... I. L Rep. 3 CaL 716 ;
8CeJ.Rep.8aO, 1878.
88. Act IX- of 1871, Sched. II., Art.
167 — Execution of Decree.— Partial Satisfaction
under Arrangement made 6y Court — Subsequent
Application for Execution.} The mere striking
a case off tbe execution file is not conclusive
upon the question whether the execution proceed-
ings were then abandoned or brought to an end.
Diarized by Google
( »U )
DIGEST OF CASES.
UMTTATION-««(d.
The Court must look at all the circumstances of
the case, and consider whether thi
proceedings were really brought to an <
This question is in a great measure, if not
tirely, one of fact.
A., a judgment-debtor, being arrested in •
cution of a decree, applied in 1873 For his
charge under § 273 of Act VIII. of 1859, and the
Subordinate judge made the following ordei
thereon : — " Applicant must pay Rs. to pel
month, 01 else be sent to jail. This arrangemen
is certainly subject to be modified on a material
change in the petitioner's circumstances." The
judgment-debtor agreed to pay Rs. 10 per month
accordingly, and the execution proceedings were
struck off the file in September 1873. The
judgment-debtor regularly paid the Rs. 10 per
month up to October 1876, when he di:
continued payment, and the judgment -creditor
thereupon, in July 1877, applied for a warrant
to arrest him. The District Judge, in appeal,
found as a fact that the execution proceedings
closed in September 1873, when the execution
proceedings were struck off the file, and held
that the application for execution was barred by
. Held, that as the decree-holder was not seek-
ing to enforce by means of execution the new
arrangement made in 1S73 for the satisfaction
of the decree by monthly instalments, but
seeking to enforce his original decree, thi
plication was barred by Art. 167, Sched. II., Act
IX. of 1871, more than three years having elaps-
ed since the date of the last application to
enforce or keep in force the decree, the present
proceeding not being, as contended by the exe.
cution creditor, a continuation of the old pro.
cccdings in execution, which, though struck off
the file, were really only in suspense, for thi
finding of the District Judge that the executioi
proceedings closed when the case was struck off
(he file, was binding on the Court on special
appeal ; the only ground on which the High
Court, as a Court of special appeal, could say he
was wrong in coming to that conclusion being,
that he had misunderstood the nature of the
arrangement then entered into, which the Court
was not prepared to do. Hurronath Bhunjo
». ChuNNI Lali Ghq«h. Markby and Prinsep,
JJ....I.L. Rep. 4 0*1. 877 ; 8 Cal, Step.
161, 1878.
87. ■ -Act IX. of 1871, Sched. II., Art.
167— Execution 0/ Decree— Ex -parte Decree—
LIMITATION— contd.
Appeal.'] An application made by a defendant
to set aside an ex-parte decree made on the and
December 1874 was rejected, and, on appeal, the
order of rejection was, on the 17th April 187S'
affirmed. On the 12th April 1878, the decree-
holder applied for execution of the decree :—
Held, that the words " where there has been
an appeal " in the first two clauses of Art. 167,
Sched. II. of Act IX. of 1871 contemplate and
appeal from the decree, and no other
appeal, and therefore that execution of the
decree was barred. Sheo Prasad b. Anrcdh
Singh. Pearson and Spankie, JJ-..L L. Bep. 2
All. 278, 187ft.
88. Act IX. of 187I, Sched. II., Art.
167, CI- 4— Application to "keep in force" Decree
or Order.'] The "application" spoken of in
CI. 4 of Art. 167 of Sched. II, Act IX. of
templated by f 212 of Act VIII. of 1859, but in.
eludes an application to keep in force decrees
The language of Art. 167, CI. 4, of Sched. II ,
Act IX. of 1871 is wide enough to include any
plication to enforce or keep in force decrees
orders, and therefore an application to en-
force or keep in force a decree by attachment of
portion of the property of the defendants wilt
iepthe decree alive against the rest of their
property, or against their persons. An order
for the attachment of a pension, in satisfaction
of a decree obtained on 10th December 1863,
*-as made on 16th April 1869. After the pass-
ng of the Pensions Act (XXIII. of 1871), the
Deputy Collector refused to continue paying the
pension to the decree. holder, and returned to the
Court the warrant of execution issued under the
orderof 16th April i860, and an order finally
isposing of the application for attachment was
made on 14th June 1872. On 10th June 1872
the decree-holder presented a fresh application,
praying that the attachment of the pension
might be continued, and a letter be written to
the Collector directing him to continue to pay
the pension to the decree-holder, as directed by
the order of 16th April 1869.
Held, that such last mentioned application
me within CI. 4 of Art. 167, Sched. II. of Act
IX. of 1871, and that, consequently, an applies.
34th July 1874, for execution of the
decree of 1 oth December 1863, was not barred.
Held also, that the decree might properly be
enforced against property of the defendant,
D,gltlzed by G00gle
{ «13 )
DIGEST OF CASES.
( 914 )
LIMTTATION-whW.
mentioned in the application of 1B74, other than
the property mentioned in the applications of
iS6y and 187a. JAMNADASr. LalitraD. West-
'"PP. C J., and Melvill, J...X, L, Hep. 3 Bom.
294, 1877.
89. Act IX. of 1871, Sched. II., Art
167, para. J— Execution of Decree— Limitation.']
An application for execution of a decree was
made on 10th November 1869, and on 27th No-
vember 1869 notice issued under § 216 of the
Civil Procedure Code, Act VIII. of 1859. On
17th February 1870 an application was made
for a warrant of attachment, and a warrant was
issued on igth May 1870. On the 17th February
■ 871 an order was made striking the warrant
off the file. Again on the 4th February 1873
application was made for execution, and notice
was issued on 10th February 1873 under ( 216
of Act VIII. of 1859. A subsequent applica-
tion for execution was made on the 31st
August 1874, and the order for notice to issue
under § 216 of Act VIII. of i8sg was made on
the same day. The question raised in appeal
was whether the plaintiff's right- to execution
was" barred by limitation, and was so when
the application of 31st August 1874 for execu-
tion was made.
Held, that Act IX. of 1871, Schcd. II., Art.
167, para. 5, applied, and that the application
for execution on 4th February 1873, being more
than three years after the date of the issuing
the last prior notice under { 216 of Act VIII.
of 1859, 01*., 27th November 1869, was late, and
that execution was barred by limitation at and
before the date of that application, and that
this bar was not removed by the circumstance
that the judgment-debtor had allowed the notice
on him in February 1S73 to pass unchallenged.
Held also, following Chunder Caomar Roy v.
Bhagoiutty Prosonno Roy (I. L. Rep. 3 Cal. 235)
that " applications to enforce a decree" in
para-40f Article 167, Sched. II., Act IX. of 1871,
mean applications, under § 212 or otherwise, by
which proceedings in execution are commenced,
and not applications of an incidental kind made
during the pendency of such proceedings, and
therefore that the application of 17th February
1870 for issue of a warrant of attachment did
not give a fresh starting-point. Prab AC harrow
b. PoTtanna. Ketnan an&Kindersley,]]...!. X»
Hep. S Had. 1, 1878.
UMITATION-ranfrf.
00. Act XV. of 1877,4*4 and 12 Sched.
II., Art. 177— Petition for Leave to appeal to the
Privy Council.'] Held Per Stuart, C.J. (Spanhie,
]., dissenting), that in computing the period of
limitation prescribed in Art. 177, Sched If., Act
XV. of 1877, for an application for leave to ap.
peal to the Privy Council, the time requisite for
obtaining a copy of the judgment on which the
decree, against which leave to appeal is sought
founded, cannot be excluded under the prov!-
3ns of § 12 of Act XV. of 1877. In the sections
of the Code of Civil Procedure (Act X. of 1877)
relating to appeals to the Privy Council, there
is a clear distinction between applications or
petitions to appeal, and appeals themselves, i.e.,
admitted appeals. The ambiguous expression
in § 12 of Act XV. of 1877, "where a decree is
appealed against," must be understood to mean
a proceeding in the way of appeal for which a
copy of a judgment is required. But that provi-
sion of J 12 does not apply to Privy Council
appeals, nor does § 4 of that Act compel the
application of the whole provisions of f 12 to
such appeals, but only such of them as are ap-
propriate to an application to appeal to the
Privy Council. A copy of the judgment on which
the decree sought to be appealed against is based,
is not necessary for the purpose of an application
to appeal to the Privy Council. The procedure
and all questions relating to Privy Council ap.
peals ought tn be determined solely with reference
to the provisions contained in Ch. XI.V. of the
Civil Procedure Code (Act X. of 1877) which
regulate such appeals, and those provisions do
not make a copy of the judgment appealed a
requirement suitable to and called for in an
application for leave to appeal. Neither, there-
fore, on the true construction of §5 4 and 12 of
Act XV. of 1877, nor by any provision of the
Civil Procedure Code, nor for any necessary
purpose, does § 12 of Act XV. of 1877 apply to
Privy Council appeals. The limitation provided
for such appeals by Art. 177 of Sched. It. of that
Act, is distinct and imperative, and cannot be
enlarged or in any way qualified by § 12 of Jhe
same Act.-.jAWAHiR Lal v. Narain Das ..I. I*
Rep. 1 All. 644, 1878.
Set Letters Patent— Allahabad—
cl 10. a.
Fazul Muhamado.Phul Kuar...
L L. Hep. 2 All. 193.
' 81. Act XV- of 1877, i 14— Deduction
of Time occupied by Former Suit—Due Diligence
Digitized byGOOC^Ie
( «5 )
DIGEST OF CASES.
( MO )
LIMITATION -contd.
— Collector's Certificate— Act XXIII. of 1871.]
The non -production by the plaintiff of the Col-
lector's certificate necessary under Act XXIII.
of 1871, to give jurisdiction to the Civil Courts,
does not necessarily constitute such a want of
due diligence on the plaintiffs part as to disen-
title him to the deduction of time allowed by
§ 14 of Act XV. of 1877- Putali Mbheti v.
Tulja. West and Pinhey, JJ L L. Rep. S
Bom. 323, 1879.
S. C. under Km Judicata. 7.
M. Act XV. of 1877, Sched. II., Art.
IO — Preemption— Limitation.] On the 19th of
December 1876, A. gave T. a mortgage of his
share in a certain village. The terms of the
mortgage were that A. should remain in posses-
sion of his share, and pay the interest on the
mortgage money annually to the mortgagee,
who, in the event of default in payment of the
interest, was empowered to sue for actual pos-
session ot the share. On the 19th of May 1877,
TVs name was substituted for that of A. in the
proprietary registers in respect of the share.
On the 8th of February 1878, G. sued T. and A.
to enforce his right of pre-emption in respect of
the share, alleging that his cause of action
accrued on the 19th of May 1877, and that A,,
notwithstanding the mutation of names was
still in possession. T. alleged that he had been
n of the deed ■-
• the <
d regisl
Held, that whether T- had been in plenary
possession since the date of the deed, or whether
in accordance with the terms of the deed, he
had only such constructive or partial possession
of it as was involved in the receipt of interest
on the loan secured by the mortgage, the
plaintiff was equally bound to have brought his
suit within a year from the date of the deed, and
was not entitled to reckon the year from the
date on which the possession of the mortgagee
of the share was, rightly or wrongly, recognized
by the Revenue Department. The suit, there,
fore, was barred by Art. loofSched. II, of Act
XV. of 1877. Gulab Singh ». Amah Sinch.
Pearson and Spankie, JJ...L L. Rep. 3 All.
387, 1870.
83 *** XV. of 1 877. Sched It., Art.
75— Oral Agreement— Debt- payable by Instal-
ments.'] A entered into a verbal agreement
with B. to pay a debt due in monthly instal-
ments, B, reserving to himself the right to
LIMITATION -contd.
claim payment of the whole sum due on default
of three successive instalments. A- failed to
pay any instalment. Pour years after the first
instalment became due, B. sued A to recover
the sum due on the various instalments not
barred by limitation I —
Held, that B. was not bound to sue for the
whole amount due directly on A.'s failure to pay
the three successive instalments.
Art. 75 of Sched. 11., Act XV. of 1S77, does
not apply, according to its strict terms, toa suit
brought on a verbal contract. Kovlash Chisn-
CIER DASS V. BOVKOOHTO NAT II ClIUNDRA.
Jackson and Cunningham, J J ..I. L. Hep. S
Cat. 618, 1878.
94. Seked. II., Art. IM—Arts. 62, IJS
— Suit for Haqq-i-Chaharam based on Custom.]
The plaintiff, the proprietor of a certain mohulla,
sued the defendant, who had purchased a house
situated in the mohulla at a sale in execution of
his own decree, for one-fourth of the purchase
money, founding his claim on an ancient cus-
tom ohtaining in the mohulla, under which the
pioprietor thereof received one-fourth of the
purchase money of houses situated therein,
whether sold privately or in execution of a
Held, that the claim was founded on ancient
custom, and it could not be maintained that the
record of that ancient custom in the adminis-
tration paper was a contract, express or implied,
as between the owner of the mohulla and the
mohulladar. The claim, therefore, being based
on ancient usage, and not on contract, Art. 62
of Sched. II., of Act XV. of 1877, did not apply,
nordidArt. 13a of that schedule. The " haqqi"
referred to in the explanation, and described as
fees, are fixed charges on immoveable property,
of which payment could be enforced by sale of
the property so charged.
But, there- being no limitation expressly pro.
vided for such suits, Art. 1 20, Sched. II., Act
XV. of 1877 governed the limitation thereto.
KirAth ChaND e. Gakesh Prasad .Span He
and Straight, JJ ...I. L. Hep. 3 AIL 3S8, 1878.
85. Act XV. of 1877, Sched. II., Art.
(71 - -Decree— Execution— Judgment-Creditor-
Representative.] The provision of the Limita-
tion Act XV.of 1877, Sched. 11., Art. 171, which
gives a period of sixty days to a person claiming
to be the legal representative of a deceased
plaintiff under ,363 or 365 of the Civil Procedure
Digitized byGOO^Ie
DIGEST OF CASES.
( 918 )
LIMITATION— contd.
Code (Act X. of 1877), does not apply to the
representative of a deceased judgment -creditor
claiming admission to continue execution pro-
ceedings commenced by him. The Civil Proce-
dureCode (Act X. of 1S77) does not provide
that applications for execution shall, like suits,
abate by the death of the judgment-creditor ;
such a representative may, therefore, come in at
any time, as his coming in is contemplated by Art ._
179, Expl. 1, Sched. II., Act XV. of 1877, sub-
ject always to the same conditions as would apply
to his principal. Golabdas b. Lakshman Nar-
haR. West and Pinhey,]] I. L. Rep. 3
Bom. 231, 1879.
96. Act XV. of 1877, Sched. II., Art.
178 — Execution of Decree — Confirmation of
Sale— Certificate of Sale— Application for posses-
sion-Act VIII. of 1S59, §§ 263, 364.] A.
obtained a money decree against B. on the 25th
of January 1873, In execution of which, property
belonging to B. was sold on the 9th of September
1874, A. himself becoming the purchaser. The
sale was confirmed on the 9th of October 1874,
but the certificate of sale was not issued till the
23rd of January 1878. A. applied for possession
on the 2nd of April 1879: —
Held, that the right to apply for possession
contemplated in H 263 and 264 of Act VIII. of
1859 (corresponding' with f( 318, 319 of the
Civil Procedure Code— Act X. of 1877) accrued
on the date the certificate of sale was issued,
and not that on which the sale was confirmed,
and that, therefore, the period of limitation
against the purchaser counted from the former
date. Basapa v. Marya. Wcstropp, C.J., Kim-
ball and F. D. Mehill, JJ...I. L. Rep. 3 Bom.
433, 1679.
97. Act XIV. of 1859, i 1, CI. 16—
Declaratory Decree.] B. died leaving him sut
viving two widows, K. and R. Some tim
after B.'s death, /'., the plaintiff, was born t
R., on the 15th September 1847. Before hi
birth the Revenue authorities made over a pat
of B.'s watan lands to K., and placed the re
mainder under sequestration until 1865. O
the birth of the plaintiff, R. petitioned theRcvt
nuc authorities, claiming the n/ninn lands for
the plaintiff as B.'s son ; but her petition
on the 15th February 1S49, rejected, on
ground thai the plaintiff was not the son of B.,
and the Revenue authorities decided that A",
should be allowed to retain possession ol
LIMITATION-«nW.
■aatan. On the 16th March 1872, K. adopted
a son B. A., as a son to her deceased husband.
In a suit brought by the plaintiff against K. and
such alleged adopted son B. A. on the 4th
December 1872, for a declaration that he, the
plaintiff, was the son of «-, and to set aside the
adoption of B. A., the defendants contended
that the suit was barred by limitation under Act
XIV. of 1859.:—
Held, that the suit, not being for the recovery
of immoveable property, but to set aside an
adoption, was within time— CI. 16, § 1 of Act
XIV. of 1859 being the enactment applicable.
Held also, that, independently of any claim to
the property of B., a suit to set aside the adop-
tion of B. A. would lie for the plaintiff, if he
1 the s-
. of i
if his
claim to the property were, as against AT., barred
by lapse of time, the plaintiff would be entitled
to an injunction against any intervention of B.
A. in performing the Shraddh or other ceremo-
nies for the benefit of B., or assuming the status
of adopted son of IS. ; and moreover the Legisla-
ture has, in Act VII. of (870 and Act IX. of
1871, distinctly recognized the right ot a person
to bring a suit to set aside an adoption as a sub-
stantive proceeding, independent of any claim to
property. Kalova v. Padapa Bhujanorav.
WestroppX-]-, arid N. Harridas, J. ..I. L. Rep.
1 Bom. 246, 1876.
LIMITATION ACT Xrv. OP 1659-f 1,
CI. 10.
See Compromise. 1.
Ram Mewa Kuwar v- Ram
Hulas Kuwar L. Bep. 1
I. A. 157.
See Limitation. SO.
§ 1, CI. 12.
See Compromise 1.
Rani Mewa Kuwar v- Rani
Hulas Kuwar. ..L. Bep. 1
L A. 157'
I I, CI. 12— Immoveable Property— 7Mn
Ciras J¥a*payableby Inamdarfrom Rents
of Village.
See Tod a Girae HaIc.
Maharana Fattehsangji p. JIhsaj
Kallianrai ...L. Bep. 1 I.
A. 34.
DigitlzSdbvGoogle
( 919 )
LIMITATION ACT XIV. OP JBBO—amtd,
Mortgage— Interest in Immoveable Pro-
perly.
See Limitation. 31.
Si, CI. 13 — Maintenance, Suit for — Parti-
tion— Sir Land held by some Members
of Family.
Sec Hindu Law— Partition. 9.
Ruhjekt Singh v. Kooer Gujraj
Singh L.Bep. 1IA.9.
See Limitation. 32.
■ i 1, CI. 15.
See Acknowledgment of Mortga-
gor's Title. 2.
Dam Chand -j. Sarfar>
L L. Rep. 1 AH. 425.
f i, CI. 16.
See Limitation. 97.
Kalova 3. Padapa,..I. L. Bep. 1
Bom. 248.
Suit for a Declaratory Decree only.
See Limitation. 9.
MoRU PATLAJI e. GOI'AL SATl
I. L. Bep. .2 Bom. 120.
Maintenance— Suit for.
See Limitation. 33.
KULO V. LAKSHMIBAI...I. L. Bep.
2 Bom 337.
Toda Giras Hak payable by Inamdar from
Rent of Village.
See Toda Qiras Hak.
Maharana Fattehsangji P. De-
5AI KALUANRAI...L. Bep. 1
L A 34.
j z-Tmstee.
See Executor, Estate of. 2.
LalLUbHAI jr. Mankuvekbai...I.
L. Bep. 2 Bom. 388.
f 4 — Acknowledgment of Barred Decree.
See Kistbandi.
HeERALALL MoOKHOrADHYA D.
Dhunput Singh. ..I. L.Bep.
4 Cal. COO.
§S-
See Limitation. 19.
JlJGUERNATH 1. SyUD SHAH...
Bep. 2 I. A. t
DIGEST OF CASES. ( 920 )
LTJMTATIOW ACT XIV. 07 1859 -contd.
See Limitation. 34.
Watson v. Aoa Mehedeb L.
Bep. 1 1. A 346.
! li, 12— Applicability of— to Act VIII.
Of 1859, f 246.
See Hindu Law — Alienation of
Ancestral Property. 8.
Musst. Phoolbas Koonwar *.
Lali
1 Sakc
Bep. 3 L A. 7 ; I. L. Bep.
1 Cal. 223.
See Limitation. 3D.
Madir:bs. Sham Chamo .1. L.
Bep. 3 CaL 243.
f 20, 31-
See Limitation. 36.
Delhi and London Bank *. Or-
chard...L. Bep. 4 I. A. 127;
I. L. Bep. 3 CaL 47.
LIMITATION- ACT IX. OF 1871.
Bejoy Chunder v. Rov Pkoson-
no-.I. L.Bep. 4 Cal. 327.
H 2, 3. 4 — Suit on Promissory Note filed
in November 1875.
See Limitation. 11.
Madhavan o. Achuda X. L.
Bep. 1 Mad. 301.
- i 4— Explanation.
See Limitation. 37.
Chunder Moiiun v. Bhubon Mo-
hini.,1. L. Bep. 2 CaL 389.
- H 4 and 5— Admission of Timc-barred
Appeal by Single Judge, ex- parte.
See Time-barred Appeal. 1.
Dubey Sahai b. Ganesh Lal...L
L. Bep. 1 AIL 34.
- Admission of Time-barred Appeal— Suffi-
cient Cause.
See Time-barred Appeal. 2.
Zaibvlnissa BlBI 1. Kt/LSUM BlBI.
L I.. Bep. 1 AU. 2SO.
Digitized byGOOC^Ie
(
DIGEST OF CASES.
LIMITATION ACT IX. OP ISTl—cmld.
§ 5— Time for Deposit of Money for Costs
of Appeal to Privy Council expiring dur-
ing Vacation.
See Act VI. of 1874, » 8.
Lallu Gofer Chand I. L. Rep.
3 Cal. 128.
§ S. CI. a.
See limitation. 6.
Bishan Chand e. Ahmad Khan...
I. L. Bep. 1 All. 263.
17-
See Alienation by Guardian. 1.
Prosonno Nath v. Afzolonessa.
L L. Bep. 4 Col. (
See Pre-emption. 5.
Raja Rah v. Bansi...L L. Bep. 1
All. 207.
~— § 10—" Trust for a Specific Purpose."
Set Limitation. 27. 38. 38a. 61.
§ 10— "Vested in Trust"—" Good Faith."
See Hindu Law— Will. 10.
Maniklal 0. MANCHARSHA...I. L.
Bep, 1 Bom. 269.
— Mi
See Limitation. 39. 40. 41.
— § 19-
See Amendment of Plaint. 2.
Ramdoyal Khan v. Ajoodhia
Ram Khan ..I. L. Bep. 3
Cal. 1.
§20.
Sec Hindu Law— Blanager. 1.
Kumarasami o. Bala Naoappa.
I. L. Bep. 1 Had. !
— § 20— Acknowledgment of Debt
See the Cases under Acknowledg-
ment of Debt.
And see Limitation. 43. 43. 44.
See Limitation. *t
. 46. 47.
- § 22— Joint Claim.
See Co-Sharera of Land. 4.
Bydonath Baob. Grish Chun-
der Roy... I. L. Bep. 3 Cal.
LIMITATION ACT IX. OP 1871-
See Easement. 1.
Sham Churn d Tarinev Churn...
I. L. Bep. 1 Cal. 433.
- § 27— Jaliar.
See Jalkar.
Parbutty Nath v. Mudho Parok.
I. L. Bep. 8 Cal. 276.
See Limitation. 48.
-§29-
See Limitation. 64,
Manally Chenna V- Mangadu...
I. L. Bep. 1 Mad. 843.
-Sched. II., Art. 10.
See Limitation. 49. 92.
Bijai Rams. Kalu...L L. Bep.
1 All. 693.
Gulab Singh v. Ahar Singh. ..I.
L. Bep. 3 All. 2S7.
See Pre-emption. 6.
Jogeshar Singh ». Jawahir '
Singh. ..L L. Bep. 1 All 311.
-Sched. II., Art. it.
See Limitation. 50.
Kinmond ,. Jackson I. L.
Bep. 8 Cal. 17.
-Sched. II., Art. 14— Sale for Arrears of
Revenue fraudulently contrived by Co-
Sharer.
See Bale for Arrears of Revenue.
3.
Bhoobun Chundrr Sen v- Ram ■
SoondvrMozoomdar...I.L.
Bep. 3 Cal. 300.
— Suit to set Aside Revenue Sale.
See Limitation. 61.
Abul Munsoop. v. Abdui, Hamid.
I. L. Bep. 2 Cal. 98.
-Sched. II., Art IS-
See Limitation. 63. 64.
KoylashChundbr «. Preonath.
I. L. Bep. 4 CaL 610.
Ram Kishan *. Bhawani Das...
I. L. Bep. 1 All. 333.
DigitlzSdbvGoogle
DIGEST OF CASES.
LIMITATION ACT IX OP 1871— eontd.
Sched. II., Art. a6.
See Limitation. 54.
Sched. II., Art. z6— Suit for Compensation
for Crops wrongfully removed.
See Standing Crops. 1.
PaNDHA GaZI o. JBNNUDIM...I, L.
Bep. 4 Cal. ees.
Sched. II., Art. 40— Standing Crops wrong-
fully removed— Suit for Compensation—
Immoveable Property.
See Standing Crops.
Pandah Gazi k. Jennuddi...I. L,
Hop. 4 Cal. 305.
Sched. II., Art. 40-Mesne Profits misap.
propriated.
See Mesne Profits. 6.
ShURNOMOYEB it. PATTA RI StRKAR.
L L. Bop. 4 Cal. 635.
Sched. II., Art. 46.
See Limitation. S3.
Akii.asdamal a. Periasami...I.
L. Rep. 1 Mad. 308.
Sched. II., Art 60.
Sec Limitation. 54, 55,
Sched. II., Art. 72.
See Limitation. 66-
Sched. II., Art. 85.
See Attorney and Client. 1.
Aba Ismail b. Aba Thara ..L L.
Bop. 1 Bom. 1330.
See Limitation. 67.
Sched. II., Art. 03.
See Limitation. 69.
Sched. II., Art. 9J.
See Limitation. 69.
See Sale for Arrears of Revenue. 3.
Bhooban Chunder Sen „. Ram
Soonder Surma Mozoqm-
DAR...I.L.Bep. 8 Cal. 300.
Sched. II., Art. 100.
See Limitation. SO.
LIMITATION ACT IX. OP 1871— eutid.
Sched. II., Art. 109— Mesne Profits misap-
propriated.
See Mesne Profits. 6.
Shurnomoyee v- Pattari Sik-
kar I. L. Bep.4Cal.626.
Sched. II., Art. 113.
See Limitation. 81.
Sched. II., Art. 118.
See Limitation. 64.
Ram Kishan «. Bhawani Das...
L L. Bep. 1 AIL 333.
Sched. II., Art. 118-Suit for contribution.
See Limitation. 60.
Fuckoruddeen ». Mohima Chun-
der X.L. Bep. (4 Cal.
Sched. II., Art. 118— Interest— Dam-dupol
— Mortgage.
See Alignment of Mortgage.
Ganfat ji. Auarji.,.1. L. Bep.
3 Bom. 81S.
Sched. II., Art. 118— Right to Exclusive
Worship of Idol.
See Bight to Worship of Hoi.
Ehsan Chunder Rov e. Mow.
mohini Dassl.1. L. Bep. 4
Cal. 083.
Sched. II., Art. lift— Suit by Creditors to
impeach Mortgages made by Executors
and Residuary Devisees of Hindu Tes-
tator.
See Limitation. 38a.
Greender Chunder v. Mackin-
tosh...I. L. Bep. 4 Cal.
897.
Sched. II., Arts, no and izo.
See Sale of Under-Tenure. 2.
Unnoda Churn Dass Biswas in
Mothura Nath Dass Bis-
WAS..X L. Bep. 4 CaL
860.
Sched. II, Art. 121-
See limitation, 63.
Sakharam t. Ganesh I. lb
Bep. 3 Bom. 193.
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DIGEST OF CASES.
{
)
LIMITATION ACT IX. OP 1871— eontd.
Sched. II, Art. 133.
See Limitation. 63.
Sched. II., Art 123.
See Limitation. 64, and Will. 1.
Sched. 11., Art. 127.
See Limitation. 65.
Sched. II, Art 128— Arrears of Mainte-
See Hindu Law — Maintenance of
Widow. 4.
Jivis.Ramji.,.1. L. Step. 3 Bom.
307.
-Sched. II, Art. 129.
See Limitation. 66.
-Sched. II, Art. 131— Right to Turn of '
Worship of Idol-
See Bight to Worship of Idol
Ehsan Chundbr Roy. a. Moniio-
HiNi Dassi-.I- L. Bop. 4
Cal. 683.
- Sched. II., Art. 132— Suit for Foreclosure.
See Assignment of Mortgage.
Ganfat v. Ai>arji.,..I. L. Bep.
3 Bom. 318.
- Sched. II, Art. 13a— Interest— Da mdupat
— Mortgage,
See Assignment of Mortgage.
Ganfat v. Adarji...I, L. Bep.
3 Bom. 313.
- Sched. II. , Arts. 133, 134.
See Limitation, 88a.
Greender Chundkri. Mackin-
tosh I. L.Bep. 4CaL
88
- Sched. II., Art. 134 — " Conveyed
Trust"—*' Good Faith."
Sec Hindu Law— Will 10.
Maniklalv. Manckersha...LL.
Bep. 1. Bom. 269.
- Sched. II., Art. 143— Suit by Hindu e
eluded from Joint Family Property.
See Limitation. 65.
Kali Kiskore 1. Dhununjov...L
L.Bep.3CaL_32S.
LIMITATION ACT IX OP IBH-eontd.
Sched. II., Art. 145.
See Diwan Manwar Ah c Annoda-
persad Rai I. L. Bep. 5
Cat 645.
See Jalkar.
Pabuttv Nathh. Mudho Paroe,
I. L. Bop. 3 Cal. 376.
Sched. II., Art. 148.
See Acknowledgment of Mortga-
gor's Title. 1. 3. 3.
DaiaChand p. Sahfaraz ...I. L.
Bep. 1 All. 117.
Daia Chakd v. Sarfaraz Au...X
L. Bep. 1 AU. 435.
Ramam Bibi v. Hulasa Kuar...I.
L.Bep. 1 All. 642.
- Suit lo Redeem — Adverse Possession by
Mortgagee in Possession.
See Mortgage. 37.
Au Muhammad v. LaltaBukhsh.
I. L. Bep. 1 All. 665.
- Sched. II., Art. 149 — Suit for Foreclosure,
See Assignment of Mortgage.
Ganfat v. Adagji.,.1. L. Bep.
3 Bom. 313.
- Sched. II. 1 Art. 149— Suit for Foreclosure
—Suit barred by Act XIV. of 1859.
See Limitation. 17.
Ramchander v. 'Juggutwonmo-
HiM. ..I.-!,. Rep. 4CaL383.
-Sched. II, Art. 157..
. See Limitation. 67.
PrOSUNNO CuUNDER 0. PrOSUMNO
Coomar...I. L. Bep. 3 Cal.
183.
- Sched. II., Art. 158.
See Limitation. 68.
Gujar v. Barve..X L. Bep. 2
Bom. 673.
- Sched. II, Art. 166.
See Limitation. 66.
Umiashunkuh v. Chotalal I.
L. Bep. I Bom. 19.
- Sched. II, Art. 167— Decree in Favour of
Firm in Name of Agent — Application for
Execution by Agent succeeding Agent
named in Decree.
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DIGEST OF CASES.
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LIMITATION ACT IX. OP 1871-ronM.
See Execution of Decree. 13.
Lachmar Bibi v. Patni Ram...
I. L. Bop. 1 All. 610.
Sched. 11., Art. 167— Decree on Specially
Registered Bond.
See Appeal— CiviL 12.
WlLAYAT-UN-NlSSA o. NAJ1B-UN.
Nissa I.L.Rep.lA11.663.
Sched. II., Art. 167— Execution of Decree
See Limitation, 70 to 68.
LIMITATION ACT XV. OP 1877.
§2.
See Limitation. 28.
. § 4— Petition for Leave to appeal to Privy
Council— Exclusion of Time necessary to
obtain Copy of Judgment.
See Limitation. 80.
Jawahir LAi.tr. Narain Das...I.
L. Rep. I All. 644.
§13.
See Limitation. 90, uU supra.
— i 14.
See Limitation. SI.
Putali v. Tulja I. L. Bop. 3
Bom. 223.
§ 21— Adding Respondent to Appeal after
Time allowed.
Sec Parties to Suit. 8.
The Court of Wards *. Gava
Persad...L L. Kep. 2 All.
107.
Suit against Municipality — Substitution of
President for Secretary as Defendant-
See Act XT. of 1873, § 43.
Manni Kasatjndkan b.Cbookr..
L L. Kep. 2 All. 296
— § 28— Extinguishment of Debt— Suit for
Foreclosure.
See Limitation. 17.
Ramchundeb v. Jugguthonmo-
HINBV...L. L. Rep. 4 Cal.
LIMITATION ACT XV. OP 18T7—eoHld.
Sched. II., Art. to,
See Limitation. 29, 92.
Lac h mi Narain Lal p. Sheom.
bar Lal...L L. Rep. 2 All.
409.
Gulab Singh v. Ahar Singh...
I. L. Rep. 2 AIL 237.
Sched. II., Art. 62— Suit for Haqq-i-Chaha-
ram founded on Custom, not under — but
under Art. 120.
See Limitation. 94.
KlRATII CHAND V. GANESH PrA-
SAD...I. L. Kep. 2 AIL 388-
- Sched. II., Art. 62.
See Limitation. 25.
Bhawani Khar if. RikhiRam...
L L. Kep 2 All. 354.
Sched. II., Arts. 66, 67, 75, 80— Instalment
Bond— Cause of Action.
See Limitation. 24.
Bali. 1-. Stowell.,.1. L. Rep. 2
AIL 333.
- Sched. II., Art. 75.
See Limitation. 98.
Klrath?.Ganesh...I. L. Kep, 2
Sched. II., Art 132— Suit for Haqq-t-Chaka-
ram founded on Custom, not under — but
under Art 120.
See Limitation. 94.
Kihath Chand r. Ganesh Pra.
sad X. L. Kep. 2 All. 36B.
Sched. II., Art. 171.
See Limitation. 96.
Golabdas v. Lakshman...I. L.
Kep. 8 Bom. 221.
Sched. II., Art. 178.
See Limitation. 98.
Basappa «. Marva...L L.Kep.
3 Bom. 433.
LINGAYETS ARK STJDKAS.
Sec Hindu Lav— Adoption. 6-
Gopals. Hanhant...L L. Rap.
3 Bom. 273. ,
D.gmzed by GoOgle
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)
. DIGEST OF CASES.
LIQUOR-ILLICIT SALE OF.
See Illicit Bale of Liquor .
EmpresSb. Seymour. ..I. L. Rep.
1 All. 630.
Empress b, DHARAMDAS...Ibid.
636.
Empress v. Mohindka Lai,, ..Ibid.
688.
LIS PENDENS.
See Mahcruedan Law — Right of
Creditors to follow the Es
tate of a Debtor into the
hands of a Purchaser from
the Heir.
Ba za yet Hossein s, Doou Chu no.
I. L. Rep. 4 CaL 402.
See Abatement of Appeal— Civil. 1.
MORESIIWAR V. KUSHABA...I. L.
Rep. 2 Bom. 848.
Querre, whether Doctrine of — applies to
Purchase in Execution of Decree.
See Res Judicata. 29.
An Shah v. Husain Baksh...I.
L. Rep. 1 All 688.
Purchaser pendente Lite — Execution of De-
cree— Notice of Proceedings,'] The property in
question was mortgaged by C. to R. under two
mortgage bonds. On the 17th September 1874,
J{. obtained a decree declaring his lien on the
mortgaged property, and, in execution of the
decree, the property in question was purchased
by the plaintiffs vendor on the 23rd February
1875, and by him sold to the plaintiff on the
15th of April 1875.
Prior to this sale, i.e., on the 7th September
1874, the defendant, having no notice of any en.
cumbrances On the property, obtained a decree
against C, and in applying for execution there-
of, described the property in question as lakhi-
raj, and purchased the property himself at the
execution sale on the 7th of December 1S74.
In a suit brought by the plaintiff to establish
his right to possession : — Held, that the defen-
dant having purchased the property, or rather
the right and interest in it, of his debtor, at a
sale in execution of his own decree, at a time
when there was pending in the same Court
a suit against the same debtor brought by his
mortgagee to recover a debt secured by the
mortgage of property including that in dispute,
acquired nothing more than the mortgagor's
* equity of redemption, and did not acquire the
LIS PENDENS-wnfJ.
land free of the encumbrance created by the
debtor. A purchaser under such circumstances
is bound by lis pendens. Raj Kitten Mooherjee
v. Radha Makdub Haldar (21 W. Rep. 349)
approved of.
Held also, that the misdescription by the de-
fendant, in his application for execution of his
own decree, of the lands in question as lakhiraj
property, made it impossible for the mortgagee,
decree -holder, to be aware that he, the defend.
ant, claimed any interest in the mortgaged pro-
perty which did not include any lakhiraj land,
and was sufficient to relieve the mortgagee,
decree -holder, of the obligation, if any existed,
of giving the defendant notice of his proceed-
The defendant, therefore, had no right to
maintain possession as against the plaintiff,
whose title was derived from the sale held in
accordance with the decree obtained by the
mortgagee. Lala Kali Prosad v. Bali Singh.
Jackson and Tottenham, JJ...I. L. Rep. 4 CaL
788 ; 8 CaL Rep. 396, 1878.
LIST OP CONTRIBTTTORIES-Evidence
to amend, explain, or contradict.
See Company—Winding up — Con-
tributory. 1.
The London, Bombay, and Me.
diterranean bank v. bran!!
Zutani.,1. L. Rep. 3 Bom.
lie.
LOCAL INVESTIGATION— Pomr of the
District Judge to interfere with Circular Orders
No. 41 of 1866 {ind of October) and 2' of 1870
{2$th of August).] In a suit for the possession
of land, the boundaries of which were disputed,
the Subordinate Judge ordered an Ameen to
make a local investigation, and reported his
Order to the District Judge, who refused to allow
the investigation to proceed 1 —
Held, that this was a case coming within the
provisions of Circular Order No. 41, dated the
2nd October 1 S56, which authorizes local inves-
tigations by Ameens when it is necessary to
ascertain by measurement disputed areas of
land, and that the District Judge had no autho-
rity to stay the investigation.
Per Prinsep, J.— All that the District Judge
was entitled to do under Circular Order No. 25,
dated the 25th of August 1870, was to express
his opinion as to the propriety or otherwise of
by Google
( 931 )
DIGEST OF CASES.
( 932 )
LOSS OF COST— contd.
. i Held, that the suit was not maintainable.
, also, that the lower Courts properly r
LOCAL INVESTIGATION- contd.
the Subordinate Judge's order. NirodKrishn'
ROV V. WoOMANATH Mookf.rjee. Markby, and i
PHnup, i)...I. L. Rep. 4 0*1. 718; 8 CaL ; fused to cause the intended husband in this
Rep. 334, 1878. ; t0 be medicai|y examined 35 I0 his alleged
LONG POSSESSION—Evidence of— Strong ] impotency, there being no provision of law
Element in proof of Mirasdar's Title.
See Mira>. 1.
Babaji v. Narayaj
..I. L. Rep.
LOPEZ'S CASE-DOCTRINE IN.
Set Alluvial Lands. 1.
Radha Pros ad o. RamCoomar ..
I. L. Rep. 3 CaL 786.
LORD CANNING'S PROCLAMATION
07 THE 16th OF MARCH 1858-
Effect of.
See Confiscation in Oudh. 1. 3.
Nawab Malka Jahan t. Deputy
Commissioner of Lucknow.
L. Rep. 6 I. A. 63.
Prince Mirza Jehan v. Nawab
IAssur Baku ..Ibid. 76; I.
L. Rep. 4 Cal. 737.
LOSS OF CASTE-Since Act XXI. of 1850
works no Forfeiture of Right or Property.
See Hindu Law — Disqualification
to Inherit. 7.
HONAUHA a. TlMANBHAT ...I. L.
Rep. 1 Rom. 0D9.
Act XXI. of lip— Hindu Lam— Right of
Father to Custody of Infant Daughter.] A
Hindu who has been deprived of caste by the
members of his caste on account of intending,
for a money consideration, to give his infant
daughter in marriage to a man both old and
impotent, does not, under Hindu law, thereby
forfeit his right as guardian to the custody of
his infant daughter. Even if there were a rule
of Hindu law which, in such a case, inflicted a
forfeiture of such right, such rule could not, wiih
reference to the provisions of Act XXI. of 1850,
be enforced.
Where, accordingly, because a Hindu had
been deprived ol caste for the above-mentioned
reason, a person sued to have the custody of
the infant himself as her guardian in lieu of her
father, and as such to be declared empowered
to arrange for bet marriage lo a suitable hns.
band, basing his suit on Hindu law ; —
luthorizing such a procedure, and he not even
being a party to the suit. Kanahi Ram t.
Biddy A R\tt... Stuart, C.J., and Pearson, J...L
L. Rep. 1 All. 549, 1878.
LOSS BY FIRE— Exception of Liability for—
■in Bill of Lading.
See Bill of Lading. 1.
Chin Hono &. Co. v. Seng Huh
& Co I. L. Rep. 4 CaL
736.
LUNATIC - Appointment of Manager of
Estate of.
See Act XXXV. of 1853, f 9.
Manohar Lai. v. Gauri Shan-
kar L L. Rep. 1 All. 476.
Act X. of 1872, § ^id-Jurisdiction.'] The
jurisdiction of the Criminal Courts over an
accused, declared under § 426 of Act X. of 1871
to be of unsound mind, ceases after the trans-
mission of such accused to the place of safe
custody appointed by the local Government, and
such authority can only be revived when the
prisoner is sent back to the Magistrate, under j
432, on a certificate that he is competent to
make his defence. Empress v. Joy Hari Kor.
Martby and Prinsep, JJ ..L L. Rep. 3 CaL
350, 1877.
MADRAS ACT II. OF 1864.
See- Rights of Mirasdars. I.
Fakir Muhammad o. Tiruhala
Chariar I. 1. Rep. 1
Had. 206.
MADRAS ACT III OF 1865-^r XVI. of
'874— Jurisdiction— Madras Reg. I. of 1805—
Act XVII. of 1840.] Madras Act III. of 1865,
though repealed by Act XVI. of 1874, is still in
force so far as it established a jurisdiction over
offences. Magistrates in the Madras Presidency,
therefore, are not deprived of jurisdiction, over
offences created by special and local laws, given
them by Madras Act 111. of 1863. Rsu. n. Kan-
dakora- 1'inci and AVmmh, JJ ...I. L. Rep.
1 Mad. 283, 1B76. •
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DIGEST OF CASES.
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HADBA8 ACT VIII. OP I860— § I— Land-
'koldrr— Farmer— -Tenant— -Suit to compel Accept-
ance of Patta.] In a suit by the plaintiff to
compel the defendant to accept pattas for cer-
tain lands held by him in the lemindari of S-,
it appeared that the zemindar of 5. mortgaged
the property in question (together with other
property), leasing it out at the same tin
the mortgagee at an annual rent, on cond
of the amount being credited annually in
liquidation of the debt, and that after the death
of the mortgagee, his heirs transferred the
lease to the plaintiff together with the mortgage
Held, that Madras Act VIII. of 1865 did not
apply to the case. The term " tenant" as
ployed in the Act does not mean any person
who takes land from any other person. It is
defined by § 1 of the Act as including " all
persons who are bound to pay rent to a land-
holder." A tenant, then for the purposes of
the Act, is a lessee from a " farmer" or " land-
holder," The term " farmer" is not used in its
ordinary English sense of one who himself
cultivates land. Farmers under the Act are men
vho contract to take all the profits of certain
lands, and pay a specified sum to the person
from whom they take. " Landholder" includes
direct descendants of those named in $ I of the
Act. The plaintiff was not a direct descendant
of any such person, and was therefore n
" landholder" under the Act. Zinu lahdin Row-
tpn v. Vijibn Virapatieh. Holloway am
KitidersUy, JJ...I. L. Rep. 1 Had. 49, 1876.
5 3— Lease— Patta— Registration.
See Registration. 11,
Ramaswami Chktti b. The Col-
Bep. 6 L A. 170.
: § 4— Landlord and Tenant— Exrkange of
Pattas and Muchalhas.] The pattas and much.
alkas required by Madras Act VIII. of [86;
should be made and exchanged as soon as con-
veniently may be after the creation, and during
the continuance of the tenancy, the terms of
which they are meant to express.
The 4th Section of the Act requires no more
than that the pattas should mention the rate
and proportion of the produce to be given, and
not the specific quantity or number of measures.
SuSHADIil AvvaNoAR v. Sandaham. Morgan,
C. J., and Kindersley, J ..L L. Map. 1 Had.
146, 1873.
01
MADRAS ACT VHI. OF 1865 -(Wff.
L * 9 — Suit to enforce. Acceptance
of Patta— Tender of Patta .] In a suit by a land-
lord to compel acceptance of pattas and grant
of muchalkas in exchange by three ryots, joint
pattadars, it not appearing (hat the plaintiff had
tendered a patta to the defendants, or that such
tender had been dispensed with .—Held, that
the suit was rightly dismissed.
Where the parties are bound to exchange
written engagements in the form of patta and
muchalka, the landholder must, in order tt>
maintain a suit to enforce acceptance of the
patta, show that he on his part has done what
the law requires of him. A mere indefinite,
demand or notice, whether written or unwritten,
is not sufficient to sustain such a suit. A patta.
should be tendered for the tenant's acceptance,
and on his refusal to accept, the landholder's,
right to sue to enforce acceptance arises. Sayub-
Chanoa Miah Sahib v. Lakskmana Aiyan-
oak. Morgan, C.J., and /«»«, J...I. L. He- p.
1 Mad. 45,1876.
3. ■ ■ , 0— Jurisdiction* Revenue Court.']
A suit under § g of Madras Act VIII. of 1865 to
enforce the acceptance of a patta, is not a suit
to enforce the terms of a tenancy within the
meaning of ( 7 of that Act, but a suit to deter-
mine those terms. Zemindar of Devaracota
». VEMURJ VENKAVVA. Innet and Kindersley,
jj 1. 1,. Bep. 1 Mad. 389, 1878.
■% II, Rule IV.
Set Lease by Bemindar,
Ramanadan v. Swnivasa Mur.
tki .1. L. B«p. 2 Had. 80.
I 49— Distraint— Cause of Action.} The
defendants, the landlords, distrained certain
produce, the property of the plaintiff, their
lessee, in view to selling it for alleged claims
for rent. The Sub -Col lector, finding the forma-
lities required by Madras Act VIII. or 1865
had not been observed, removed the attach.
merit, and directed the restoration of the
property. The defendants having refused to
restore the property, the plaintiff brought this
suit, under Madras Act VIII. of 1865, to recover
the value of the produce : — Held, that such
wrongful withholding of the property was an act
in disregard and defiance of the Act, and did
not constitute a cause of action within the mean-
ing of § 49 triable by a summary suit under that
Act. Srinivasa v. Ehperumana. tnnes, C.j.
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DIGEST OF CASES.
MADRAS ACT VIII. OF 1865— contd.
(Oflg.). and Forbes, J ..I. L. Bap. 3 Mad. 42,
1878.
HADRABACT III. OP 1871 — A-titan-
Waskerman,~] A washerman is not an artizan
within the meaning ol Madras Act III. of 1S71.
Ex parte PooMkn. Hotlovay and Kinderstey, JJ.
I. L. Rep. 1 Mad. 174, 1876.
3. §§ 57 to 61, 85— Tax illegally leoied-
Suit to recover— Construction of Statutes.'} Sec-
tion 85 of Madras Act III. of 1871 does not bar
an action to recover money wrongfully levied as
a tax because the so-called tax had no legal
existence, the distinction being clear between
contesting the incidence of a tax lawfully impos-
ed, and suing for sums so wrongfully collected.
There is no provision in that Act for levying or
creating any tax described in § 57 of the Act at
all, otherwise than by the prescribing of the
machinery for its levy in §5 58 to 61. If that
machinery is not applied, no liability to pay
such tax can arise. Where the Municipal Com-
missioners of a town had not determined on the
imposition of a tax of that description until the
22nd of April of the official year for which such
tax was imposed, and the list of persons to be
taxed for that year was not completed until the
14th of July of the same year, and notice to A.
of his assessment under such tax was not given
to him till the Sth of October in that year ;—
Held, that the tax had no legal existence, and
that A. was entitled to recos-er from the Com-
missioners money which they had collected from
him as and for such so-called tax. Bates v.
The Municipal Commissioners of the Tonn of
Bellary {7 Mad. H. C. Rep. 149) followed. The
fact that the sanction required by | 57 had not
been given till after the period prescribed for
the acts to be done to constitute the tax,
thereby rendering compliance with the machi.
nery prescribed by the Act impossible, did not
affect the illegality of the tax. The proper in-
ference from that circumstance was, not that
the subject should be taxed, because fulfilment
of the conditions on which the tax
fall on him was impossible, but that in such
circumstances the imposition of the tax wai
illegal. A statute not only enacts its substantive
provisions, but, as a necessary result of legal
logic, it also enacts as a legal proposition
everything essential to the existence of the
specific enactments. In the present
Legislature had imposed certain duties both
nil.
s. Thos
MADRAS ACT HX OF 1871-
the taxpayer and the Commission
ties— as to the taxpayer, enforceable by pe.
rtalties— are to be performed at a particular time.
j here, therefore, a latent proposition
of law, via., that there should be a legally sanc-
tioned tax at the period at which the duties are
to be performed ; and this proposition so impli-
citly contained was as clear and binding; as if
it had been explictly declared. Lbmah v. Da-
KODARAYA. fiollovav and Innes, JJ J. L.
Sep. IMad. 1S8, 1876.
S. Tells, Faming of— Agreement net
under Scot.] An agreement was entered into
between the Commissioners of the town of
Vizianagram and the defendant, farming the
tolls of the town to the defendant for one year.
The agreement was duly signed by the defen-
dant, but was not executed under seal by (he
Commissioners, as required by Madras Act III. of
1871. In a suit by the President on behalf of
the Commissioners, brought after the expiry of
the year, for a portion of the sum due to them
by the defendant : —
Held, that inasmuch as the plaintiff had fully
performed all things to be performed On bis
part, and both parties ha;! acted under the con-
tract, though it was not formally executed by
the Commissioners, ar.d as the defendant had
had the full benefit of the contract, it would be
contrary to equity and good conscience to allow
him to set up as a gruund of defence that there
was no contract in point of law. Goodrich v
Venkahna II,. Rep.aMad.HM^
% 61— Tax legally imposed— Jurisdiction
of Civil Courts— Suits to contest Incidence.
See Jurisdiction. 1.
Kakavva t- LbmaM.,,1, L. Rep.
2 Had. 37.
MADRAS REGULATION XXV. OF 1801.
Set Polliera. 1.
The Collector of Trichino-
Rep. It A. 382.
See Rights of Mirasiiara.
Fakir Muhammad e. TntVHALA
Charias I. Ii. Rep. I
■fad. 208.
D,gltlzed by G00gle
DIGEST OF CASES.
MADRAS REGULATION XXXI. OF
1803.
See Polliem. 1.
The Collector of Trichinopoi.v
C. L.EKKAMAXI...L. Ro|). 1 I.
A. 282.
MADRAS REGULATION IX. OF 1803-
§55-
See Jurisdiction. 13.
Collector of Sea Customs, Ma.
DRAS V. PanSIAK CHtTHAH-
BAKAM...I. L. Rep. 1 Mad.
69.
MADRAS REGULATION I. OF 1805—
jurisdiction of Magistrates.
See Madras Act in. of 186B. 1.
Reg. «- Kandikoka.. I. L. Rep.
I Mad. 223.
§ 18— Salt Earth, Collection of.'] The
collecting of salt earth from salt
or the being in possession of salt earth, for (he
purpose of making salt, is not an offence wi
the meaning of § iS of Madras Reg. 1. of i
The case at 4 Mad. H. C. Rep. Appx. 53, o
ruled. Reu. t. Pyla Alchi... I L. Rep. 1
Mad. 278, 1877, F. B.
MADRAS REGULATION VII. OF 1317.
See Criminal Breach of Trust. 1.
Anon I. L. Rep. 1 Mad. 55.
MAGISTRATE— Mode in which a— should
show Cause against a Rule,
See Mode in which a Magistrate,
In the *
of the Petitio.
drain X- L. Rep. 4 Cal.
20.
- Village Munsiff— Evidence Act I. of 1872,
|*6.
See Tillage Munaiff. 1.
Evidence. 23.
Criminal Procedure Code, Act
X. of 1873, ( 122. 2.
Empress p. Kamanjiya I. L.
Hep. 2 Mad. 5.
MAGISTRATE OF THE DISTRICT—
Power of— to Call for Proceedings in Case
of Discharge by Subordinate Magistrate.
See Revival of Prosecution. B.
lupx. v. Gowi>APA...L L. Rep. 3
Bom. 634,
- Power of— to Order Re- trial
See Revival of Prosecution. B.
I.Ml'X. V. GOWDAPA ..I. L. Rpp. 2
Bom. 034.
See Criminal Procedure Code, Act
X. of 1872, s 39S. 1.
Dijabur Oot...I, L. Rep. 4 Cat.
047.
- Power of— lo Proceed without Complaint
where Prosecutor has not availed himself
of a Sanction to prosecute.
See Criminal Procedure Code, Act
X. of 1873, ( 142. 1.
Empress v. Nipcha...L L. Rep. 4
Cal. 712.
- Relative Position of— to Magistrate of the
First Class, and Sessions Court, for pur-
poses of } 461*, Act X. of 1872.
See Criminal Procedure Code, Act
X. of 1872, t 468.1.3.
Reo.*. Padamaxabha Pa [...I. L.
Rep. 2 Bom. 384.
Gur Daval I. L. Rep. 205.
MAGISTRATE OF THE FIRST CLASS
—Relative Position of -to District Magis-
trate and Sessions Court.
See Sanction to Prosecute. 5. 7.
Impx.hPadauasabha Pai ..I.L.
Rep. 2 Bom. 364.
Gur Daval ..I. L. Rep. 2 All.
305.
MAGISTRATES IN MADR/.S PRESI-
DENCY— ) urisd irl ion of— in respect of
Offences against Special or Local Laws.
See Madras AC. HI. of 1866.
Reo. o. Kasoakora . I. L.Rep.l
Mad. 223.
MAGISTRATE'S NOTES OF EVI-
DENCE—Affidavits to Supplement-on
Application totransf^r Case to HighCourt.
See High Court Criminal Procedure
ActX. of 1675, i 147.3.
REO. U. HA.IJKE jLEhlN Bux ..I.
L. Rep. 1 Cal. 354.
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DIGEST OF CASES.
MAHALKARI-Sanction to prosecute a— for
Fabricating Record of Cases granted by
District Magistrate, enough.
' S?e Sanction to Prisiecute. 4.
Imp*, v. Lakshhan Haw. ..I. L.
Rep. 2 Bom. 481.
MAHOMEDAN FAMILY ADOPTING
HINDU CtJST0M8~£D» applicable A..] A
Judge Is not bound, as a matter of law, to apply
to a Mahomedan family living jointly all the
rules and presumptions which have been held
by the High Court to apply to a joint Hindu
family. When a Mahomedan family adopts the
customs of Hindus, it may do so subject to any
modification of those customs which the members
may consider desirable and it must rest with
the Judge who has to decide each particular
case bow far he should apply the rules of a
Hindu joint family to the case of any Mahomedan
joint family that comes before him. Suddur-
TONNESSA !'. MAJADA KHATOON, Markhy iai
Prinup,)) .1. L. Rep. 3 Cal. 694; 3 Cal-
Rep. 80S, 1878.
MAHOMEDAN LAW- Descent— Heir— Re-
presentatives— Deceased Debtor — Decree by Con.
tent -Parties— Sale in Execution — Act VIII. of
1859, , 203— ActX. of 1877, S 35*0 B. R., a
Mahomedan, died possessed of mov
immoveable property, and leaving a
daughter, and a sister S., his heiresses according
to Mahomedan Law. 5. was as such heiress
entitled toa one-sixth sbare of an undivided
moiety of a certain part of the property which
was situated in Calcutta- After B- K.'s death,
the L. Bank sued his daughter and her husband
and two of her husband's brothers in a Mofussil
Court to realize certain mortgage securities
executed by B. R. to the bank, and obtained a
decree by consent. Neither the widow nor 5.,
who was then absent from the country, were
parties to the suit. The bank, in execution of
their decree, caused certain property of B. R.,
including the undivided moiety of the Calcutta
property, to be sold by the Sheriff of Calcutta.
The defendant became the purchaser at this
sale, and obtained possession of the property.
The certificate of sale stated that what was sold
was " the right, title, and interest of B. /?., de-
ceased, the ancestor, and of the defendants (nam-
ing them), the representatives, in a moiety of a
piece of land situate," &c. S. afterwards sold
her share in (among other properties) the above-
mentioned undivided moiety of the Calcutta
MAHOMEDAN LAW-imU.
property to the plaintiff, who now sued the pur-
chaser at the execution sale to recover the sub-
ject of his purchase.
Heldhf Garth, C.J., Kemp and Jackson, ]],
(Martbyand. Ainslie, JJ-, dissenting), that the
question whether the decree under which the
sale was made to the defendant affected the
share of S-, who was not a consenting party to it,
must be determined by the Mahomedan law, so
far as it was ascertainable. By that law an ab-
sentee heir is not bound by a decree obtained in
a suit brought by a creditor of a deceased debtor
against the heir or heirs in whose hands the
whole of the property of such deceased debtor may
be, unless the proceedings are duly conducted)'
and the plaintiff's case proved in open Court ;
and a decree by consent of the heir who is sued
is not legally binding on the other heirs ; and,
therefore, that the decree and execution founded
upon it did not affect S-'s share in the estate of
B. R., and consequently that the property in
question did not pass by the sales made by the
Sheriff.
Per Afar Jtfy,}.— Under the Mahomedan law,
taking that law as stated in the Hedaya, the
estate of an intestate descends entire, together
with all the debts due from and owing to the
j deceased. The creditor of a deceased Maho-
medan must enforce his claim against the estate
I in a suit properly framed for that purpose.
Such a suit is properly framed if all persons in
possession of that particular portion of the
estate which it is intended to charge are mad*
The right of a Mahomedan heir claiming the
property of his deceased ancestor, who died
indebted, is a right of representation only, and
except as representative he has no right to the
property whatsoever.
In India, proceedings to recover a debt due
by the ancestor, taken against a person who is
not the true or sole heir, may nevertheless,
under some circumstances, bind the estate ; and
considering that in this case the parties sued
were in possession of the property which was
sold, that the property was mortgaged by the
ancestor for the very debt sued for, and that the
estate was properly and duly applied to the
payment of the debt for which it was mortgaged,
5., as one of the representatives, was bound by
tho*e proceedings just as much as those repre-
sentatives who were actually parties, thereto.
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DIGEST 01' CASES.
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fAHOWEDAN L&M-contd.
A person may be a representative within the
meaning of f 2030! Act VIII. of 1859 (5 252 of
Act X. of 1877), so as to make the decree effec-
tual for the purposes therein slated, although
such person is not the heir. Assamathem
Nessa Debeep Roy Lutchmeeput Singh. ..X.
L. Rep. 4 Cal. 143 ; 3 Cal. Rep 238, 1878,
F. B.
MAHOMETAN UW-™«.
instance as was against her, E. H. ought also Id
he heard to appeal against so much of the deci-
sion as was against him.
Held also, that if the so-called deed of gift of
the 18th of November 1839 was simply a deed
of gift without consideration, it was invalid, be-
cause there had been no delivery of possession of
the property given. If it was to be regarded as
, a deed of gift for a consideration, then, although
according to Mahomedan law a consideration
may be perfectly valid which is wholly inade.
. I quate in amount when compared with the thing
i given, yet the whole transaction must be looked
I to, and an actual payment by the donee of the
1 consideration, and a bond fide i
3. Will— Deed of Gift—Presumptii
Marriage.] D. !!., a Mahomedan, died in 184:
and E. H., his eldest son, possessed himself of
all the property of D. H. by virtue of two
ments which he set up, a deed of gift and a will,
both dated the 18th of November 1839. In 1852,
the widow of one of D. H.'s younger sons, as .
.. . - . . , , i.„_t,,„ I part of the donor to divest himself in prasenti
guardian and protector of her infant daughter, ; "~ '
* . I . ... . , ... , ... ... \ of the property, and to confer it upon the donee,
the respondent, instituted a suit to set aside the , \. . .. -. .. .
....... ,, ... „ . must appear; but upon the evidence, their
deed and the will and to obtain possession on ■ r'
behalf of her daughter of a fourteen -annas share
(the daughter's share) of the property of her
Lordship
sed husband, and she also sued for the othi
two annas on her own behalf ; but after jndg-
ment in that suit, and pending an appeal by E.
H., she withdrew from the suit on the terms of a
compromise filed therein, and to which effect
was given by the Sudder Dewanny Adawlut,
which dismissed the appeal, and gave a decree
in terms of it.
The respondent and her husband, in i860,
filed a suit against E. H.t now represented by
the appellant, to set aside the compromise, on
the ground that she was no party to, and had no
knowledge of, the compromise between E. H.
and her mother, and that it w
fraud and collusion on their part ;
substance for a review of the judgmi
Court of first instance so far as it w:
her. She also made three further claims, vim.,
(1) to a share derived by her father from a pre.
deceased brother ; (a) to a share in right of her
grandmother, whom she alleged to have been a
wife of D. H. ; and (3) that there should be
added to the whole property a portion which
E. H, had recovered by a decree of the Privy
Council ; —
Held, that the compromise being set aside on
the ground of fraud and collusion on the part of
E. H. and the respondent's mother, the effect
wis to remit both parties to [heir original rights,
including the right of appeal, and that if the
respondent was to be allowed to appeal against
so much of the decree of the Court of first
the conclusion that the
transaction set up on the part of the appellant
was not a real one ; that no real consideration
passed ; that there was no real intention on the
part of D. H. to part with his property at once
to his son E. H., but that both father and son
were endeavouring to evade the Mahomedan
law, by representing that to be a present trans-
fer of property which was intended only to
operate after the father's death, the policy
of the Mahomedan law being to prevent a
testator interfering by will with the course of
the devolution of property according to law
among his heirs. And though a holder of pro-
perty may, to a certain extent, defeat that
policy by giving in his lifetime the whole
ffected by any part of his property ti
prayed in provjded he complies with certain forms, it is
ent of the ;ncumbent on those who seek to set up a pro-
ceeding of this sort to show very clearly that the
forms of the Mahomedan law, whereby its policy
Is defeated, have been complied with.
The will having declared E. H. the executor
and representative of 0. H., proceeded :— " I
divide the remaining two- thirds now under my
possession, uninterfered and unconcerned by
any one else, into three portions. One portion
to be laid out as the executor may think proper
for the testator's welfare hereafter, by charity
and pilgrimage, and keep Up the family usage,
namely, the expenses of the mosque and tateea-
daree of the sacred martyrs, and for the comfort
of the travellers, the surplus amount to be
appropriated by himself." Then it went on to
say, from the other two-thirds " lie shall keep
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DIGEST OF CASES.
MAHOMEDAN LAW-..™M.
every one by his good conduct and affection
contented and satisfied. It is also necessary
for all persons having rights, heirs and friends
connected with me, to obey the said executor
and consider him my representative." Then
further, " none of the heirs have power to sell
or divide the landed property mentioned in
the will."
Held, that the will in its general scope was in
contravention of Mahomedan law. With respect
to the limited contention that it might be sup-
ported with respect to the devise of a one-third
share, it appeared to their Lordships that the
devise, considering the vague character of it,
and that the beneficial interest was left to E. H.
after he had devoted what he might deem sufl
cient to certain indefinite pious uses, was i
reality an attempt to give, under colour of a
religious bequest, an interest in one-third to
E. //., in contravention of Mahomedan law-
It appearing that the son of L. had always
been treated by D. H. and all the members
of the family as a legitimate son, a presump-
tion arose that L, was D. H.'s wife, which was
strengthened rather than rebutted by the
evidence. Ranee Khujooroonissa w Mussa-
HAT ROUSHAN JEHAN...L. Rep. 3 I. A. 891,
1878 ; I. L. Sep. 2 CaL 1S4.
MAHOMEDAN LAW — ACKNOW-
LEDGMENT OF BROTHERHOOD-^.,
B., and C, Mahomedans of the Shiah sect, the
illegitimate sons and daughter of D-, a Maho-
medan female, by a married Hindu, after the
death of D. applied for a certificate under Act
XXVII. of i860, as her sons and daughter, ad-
ducing evidence to show that they were the
sole children and heirs of D.
Held, not to amount to an acknowledgment
by A. that B. was his brother, to all intents and
purposes, and as such entitled to inherit his
property as his heir. Mtrza Himmut Baha.
DOOR «. MtPSSAMAT SaHHBZADEE BeGUH L.
Bey. 1 1. A. 83 ; 31 W. R. 113 ; 13 Bang.
L. R. 183, 1873.
MAHOMEDAN LAW-DIVORCE - Re-
pudiation by A mbiguous Expression — Custody of
Minor Children] Where a Mahomedan husband
said to his wife, when she insisted, against his
wish, on leaving his house and going to that of
bet father, that if she went she was his paternal
uncle's daughter, meaning thereby that he would
MAHOMEDAN LAW— DIVORCE— ctJ.
not regard her in any other relationship, and
would not receive her back as his wife :— Held,
that the words used, being spoken with intention,
constituted a divorce, under Mahomedan law,
which became final if not revoked within the
time allowed by that law.
Held also, the divorce having become abso-
lute, the parties being Sunnis, that the husband
was not entitled to the custody of his infant
daughter until she attained puberty. Hamid
Ali e. IhtIazan. Pearson and Turner, JJ ..I. L.
Rep. 3 All. 71, 1878.
3. Talalt.] The merely pronouncing
the word Talak three times by the husband,
■ without addressing it to any person, does not
I constitute a valid divorce under Mahomedan
Sembte, that a div
D again:
e pronounced in due form
man who is in fact hit
by a
wife dissolves the marriage, though he pro-
nounces it under the belief that she is not his
wife- Furzukd H OSSEIN 9 Janu Bibge. Mil-
ter and Maclean, JJ...I. L. Rep. 4 CaL 683,
1878.
S. C. under Restitution of Conjugal
Rights. 3.
MAHOMEDAN LAW— DOWER -Right
of Widow to follow Estate into Hands of
bona fide Purchaser for Value from Heir-
at-Law.
See Mahomedan Law— Right of
Creditors to follow the
Estate of Debtor into the
hands of a bona fide Pur-
chaser from the Heir- at-
Law.
SvudB*zaykt H ossein ». Dooli
Chand . ...L. Rep. OLA.
311; I. L. Hop. 4 CaL 403.
1, Prompt and Deferred Dower— Limi-
tation— Demand — Petition for Leave to sue in
form* Pauperis.] Prompt or exigible dower is a
debt always due and demandablc, and payable On
demand, and, therefore, upon a clear and unam-
biguous demand and refusal a cause of action
ould accrue, and the Statute of Limitations
An unsuccessful application by a Mahomedan
ife for leave to sue her husband in formi pau.
peris for her dower, though such application is
ipposed by the husband, who denies his liability
o pay the dower, is not such a demand and
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DIGEST OF CASES.
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K AHOMEDAN LAW-DOWER- ton W.
refusal as to constitute a cause of action. Such
application is only a strong expression of an
intention to demand her dower by suit, If allowed
to do so in formK pauperis, and does not amount
to a demand by way of action until she has that
permission ] and the husband's opposition does
not alter the character of the proceedings, or
constitute a cause of action, unless the wife had
made a previous demand. The option lies with
her to demand the dower or not. It is for her to
elect the time at which she will do it ; and if she
has not done it, his opposition, however strongly
expressed, would be immaterial. Raneb Kha-
jourou.mssa v. Ranee Rveesoonissa...L, Rep.
2 I. A. 838 ; 24 W. Sep. 163 ; IS
Seng. L. R. 306.
2. Restitution of Conjugal Rights-
Prompt and Deferred. DoweT.~\ When a Maho-
medan sues his wife for restitution of conjugal
rights, such suit must be determined with refer-
ence (o Mahomedan law. Under that law, if the
wife's dower is " prompt," when her husband sues
her to enforce his conjugal rights, she is entitled
to refuse to cohabit with him until he has paid
her dower, and that notwithstanding she may
have left his house without demanding her dower,
and only demands it when he sues, and notwith-
standing also that she and her husband may have
already cohabited with consent since their
marriage. Abdool Shatiour v. Raheemoonissa
(H. C. Rep. N. W. P., 1874, p. 94) followed.
When at the time of the marriage the payment
of the dower has not been stipulated to be
" deferred," payment of a portion of the dower
must be considered "prompt" The amount of
such portion is to be determined with reference
to custom. Where there is no cusiom, it must
be determined by the Court, with reference to
the status of the wife and the amount of the
fixed dower.
Where a Court, following this rule, determi
that one-fifth only of a dower of Rs. 5,000
stipulated to be deferred must be considered
1' prompt," inasmuch as the wife had been
prostitute and came of a family of prostitutes,
Wis held, that its discretion had been soundly
exercised. Eidam v. Mazkak Husain. Stuart,
C.J, and Pearson, ).. I. L. Rep. 1 AIL 483,
1877,
8. Prompt andDeferred Dower— Custom.]
In a suit to recover Rs. 15,000 out of Rs. 51,000
due to the plaintiff as dower, the plaintiff alleged
MAHOMED AS LAW— DOWER— <•„«/,/,
at as it was riot specified at the time of mar-
ige that the dower was " deferred," it must be
nsidered "prompt." The Court of first in-
mce dismissed the claim, holding that in the
absence of any specification whether the dower
was '■ prompt " or deferred," it was necessary to
refer to custom to determine the nature of the
dower, and that according to the custom obtain-
ing in such cases in the district from which this
case came, the dower must be considered to be
" deferred." On appeal, the High Court said 1— ■
'•This judgment cannot be supported. The
law on the point is stated in Baillie's Digest
from the Fatawa Katee Khan, which has been
followed by this Court in recent decisions— Eidan
v. Maahar Husain (I. L. Rep. 1 All. 483) ; Habib-
un-Nissa v. Nieam-ud-Din, decided the 31st
July 1877. When nothing has been said as
to the character of the dower, the Court
may determine the amount to be considered
prompt with reference to the position of the
woman, and the amount of the dower named in
the contract, taking into consideration at the
same time what is customary. The reference to
.ppears to be in respect of the propor-
obe held ' prompt,' a
mtemplated to refer to cust<
scribe whether or not the entire dower should be
' deferred.' We have been shown a translation of
an extract from Jami-ur.Rumut, a commentary
on Mukhtasar Vakaya, which will, however, beat
another construction. However this may be, we
do not concur with the Subordinate Judge in
holding that any custom is proved by which the
entire dower is considered 'deferred.' " Tau-
FIK-UN-NisSa v. GhVlam Kambar. Pearson
and oldfield, JJ...I. L. Hop. 1 AU. 606, 1877.
MAHOMED AN LAW— EMANCIPATOR
OP SLAVE— Heritable Rights of.
See Act V. of 1843.
SAYADMlR UJMUDFNKHANB.ZIA.
ul-Nissa Begum.. L. Rep, 0
LA. 137; I. L.Bep. S
Bom. 423.
MAHOMTEDAN LAW-OIFX.
Sea Mahomedan Law. 2,
Rakee KHtijooRoomssA n. Mussr.
Roushan Jbham ...L. Rep. 3
L A. fe91.
I. Gift of Defined Share— Musha.J A
defined share in a landed estate is a separate
property, to the gift of which the objection whictf
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HAHOHEDAN LAW -GIFT-miiM. ,
attaches under Mahomedan last to the gift of
joint and undivided property does not apply.
jtwAN Baksh v. Imtjaz Began. /*™™n and
Spaniir, JJ I. L. &ep. 2 AIL
93,1878.
8. Gift of Mushi — Gift of Definite
Share of Zetnindaries —Gift by a Guardian to a I
Minor— Possession —Secondary Evidence— Proce-
dure - Issues - Reg. XXVI. of mi, § a-] A
Mahomedan father was alleged to have execut. j
ed, first, in January 1848, in favour of his infant
son, ^.kibbanamak, or deed of gift, of the office
of Mutwalee of a certain shrine, together with
the endowed lands appurtenant thereto ; second,
in October 1849, a kibbanamak to the same son
ofa ten-annas share in certain zemindaries.
The mother was also alleged to have executed
in June 1851, tothe same son, a kibbanamak
(reciting the acknowledgment thereof by the
father as guardian of the infant) of certain
shares of other properties, tn March 1S53, the
Said infant executed an ikrarnamak to his Father
reciting the previous gift to him by his father,
of October 1849, and treating it as bant, fide
and operative, undertaking to make certain
provision for his half-brothers and sisters that
might be born in future, out of the proceeds of
the property received by him in gift, and to
share it equally with any full brothers that
might be born, and to make the latter compen-
sation for a portion of the property given to him
which had been settled on his wife, and de-
claring that so long as there was a possibility
of brothers and sisters being born to the plain.
tiff, he should have no power of alienation, and
that the father should during his lifetime have
the charge, management, and control of the
entire property. On the same day, the said in-
fant executed to his mother an ikrar of a like
purport as regarded her hibba. In December
1856, having attained his majority, he executed
a third ikrar reciting the execution and purport
of the second and third deeds of gift, and in
effect confirming the previous ikrars, and grant-
ing certain allowances out of the properties.
In a suit by the son to set aside the three
ikrars as forged, and for possession with mesne
profits of the properties the subject of the three
Held, with regard to the first deed of gift, the
original of which was not produced, but only a
copy from the Registry, that such copy was in-
MAHOMEDAN LAW-GIFT- cantef.
admissible in evidence, as neither of the two-
conditions required to make such copy statu-
tory evidence of the deed by virtue of Reg.
XX. of 1S12, §2, CI. 5, had been complied
with. It was not shown that the original was
" tost, destroyed, or not forthcoming," nor was
there any proof by any of the subscribing wit.
nesses that the original had been duly executed.
Held further (finding the three ikrars alleged
to be executed by the son were genuine docu-
ments), that the rights of the parties must be
determined on the basis of the combined opera-
tion of the kibbas and ikrars. The father who
set up in his defence to the suit these ikrars as
valid instruments, could not be allowed to aver
that the Aibbas to which they related wtre
intended to have no operation and effect ; but
the kibbanamahs, read, as they should be, by the
light of the ikrars, showed that pure and abso.
lute gifts of the property were not intended.
The High Court, having found the earlier of the
two ikrars to be genuine (although it held the
third and confirmatory ikrar not to be proved),
was wrong in declining to give effect to them
on the grounds that the son was a minor, and
that they were obtained under undue influence,
—neither; the plaint nor the issues distinctly
raising those points, and the evidence not
having been directed to them.
Semble, tbat as regards the two earlier ikrars,
the son must, for the purposes of Reg. XXVI-
°f '7°3i S 2i be assumed to be the proprietor of
the revenue-paying estates referred to in them,
and not having, at the time of their execution,
reached the age of eighteen (the age fixed by
that Regulation for the minority of Mahomedan
proprietors of estates paying revenue to Go-
vernment), the period of his minority would
be governed by that Regulation ; but, however
that might be, the third ikrar was executed
after he had atained the full age of eighteen,
and, being found to be genuine, confirmed
and gave effect to the two former ones, which
must be construed with It. The rights ol the
parties ought, therefore, to be governed by the
provisions contained in the two latter kibbas
and the ikrars read and constiued as a whole-
No declaration, however, to that effect could be
made, or any relief granted, in the present
suit, having regard to its form and to the
prayer of the plaint.
Under Mahomedan law, where there is, on the
part of a father or other guardian, a real and
D,„i„.db»Googlc
DIGEST OF CASES.
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M AHOMBDAN LAW— GIFT -contd. |
fond /Me intention to make a gift, the law will be
satisfied without change of possession, and will
presume the subsequent holding of the property to
be on behalf of the minor. The rule of Mahome-
tan law, that a gift of Muska, or an undivided
part in property capable of partition, is invalid,
does not apply to the case of a git: of definite
shares in lemindaries, which are in their nature
separate estates, with separate and defined rents,
thenatureof the right in them being defined and
regulated by public Acts of the British Govern-
ment, rendering such shares, even before parti-
tion of the land, definite estates, capable of dis-
tinct enjoyment by perception of the separate
and defined rents belonging to them. Amee-
KOONI5SA KlIATUOXV. AbeDOONISSA KlIATOON...
L. Bep. 2 I. A. 87 ; IS Seng. L. B. 67 ;
23 W. B. 308, 1874.
MAEOMEDAN LAW - GUARDIAN-
Legal Guardian — Cusindy of Minor — Siller —
Prostitute.} Where the plaintiff sued for the
custody of her minor sister, as her legal guar-
dian under Mahomedan law • —
Held, that the fact that the plaintiff was a
prostitute was, although under Mahomedan law
she would be prima facie, entitled to the guat
dianship of her minor sister, sufficient to dii
qualify her, and a sufficient reason for dismissing
her suit. Abasi ». Dunne. Stuart, C.J., and
Pearson, J X. L. Bep. 1 All. 588, 1878.
MAHOWKDAN LAW-HUSBAND AND
WIFE— Right of Wife to resist Suit for
Restitution of Conjugal Rights till Pay-
ment of her Dower-
See Mahomedan Law— Dower. 3.
Eidan v. Nazhar Husain.-.I. L.
Bep. 1 All. 483.
MAHOMEDAN LAW — INFANT— Sale
by Guardian when binding on.
See Mahomedan Law— Sale by
Guardian.
Hasan Au v. Mehdi HusaIk ..I
L. Bep. 1 All. 638.
1, Inheritance — Sale by Widow in Dis-
tkargc of Debts -~&finor, token bound by.~\ The
plaintiff sued to obtain possession, by right ol
inheritance, of a share of certain property form,
ing part of the real estate of her deceased father
which had been sold by two of his widows to sa
tisly decrees obtained against them by creditor)
MAHOMEDAN LAW- -INFANT— can Id.
of the plaintiff's deceased father, as his repre-
tives. The plaintiff was not the daughter
of cither ot the two widows so sued, but of a
third widow of the deceased, and was, at the time
of the sale, living with and supported by her
mother, and had no legal guardian at that time.
The deed of sale stated that the plaintiff was
Dssession, and was executed by the two
widows, on behalf of themselves, and as guar-
dian of the minor children of their deceased
husband. It did not appear that the plaintiff
a party to the suits by the creditors, nor
whether the decrees were obtained on the con-
fession of the defendants in them, or after proof
ot the debts :—
Held, that if the minor was in possession.
id was not a party to, or properly represented
, the suits in which the creditors obtained de.
■ees, she was not bound by the decrees, nor
by the sale subsequently effected to satisfy
them, and was entitled to recover her share, but
intingent on the payment by her of her share
of the debts, lor the satisfaction of which the
sale was effected. Hamir Singh v. Musamat
ia..vX X» Bep. 1 All. 57, 1875, F.B.
MAHOMEDAN LAW -
ANCE — HISSING FEBSON —
Presumption as to Death.
See Evidence. 21.
PaHUESIIAR RAI v. BlSHESHAK
Singh I- L. Bep. 1 All.
53.
MAHOMEDAN LAW-INHI31ITANCE
— BETUBN— Widom's Rights.] By the Ma-
homedan law ot inheritance, in default of other
sharers and in the absence of distant kindred,
the widow is entitled to the "return," to the ex-
clusion of the fisc. Mahomed Arsiiad Chow-
dhrv v. SajiDA Banoo. Kemp and Morris, JJ
I. L, Bep. 8 Cal. 702"; 2 Cal. Bep. 48,
1878.
MAHOMEDAN LAW— KAZI- Appoint-
ment of Hereditary Kazi— Regulation
XXVI. of 1827— Custom.
See Kazi. 1. 2,
Jaual-Jaiial I. L.Bep. I
Bom. 633.
Daudsha v. Ism aii.su a L L.
Bep. 3 Bom. 73.
D.gmzed by G00gle
DIGEST OF CASES.
MAHOMED AN LAW- PRK EMPTION.
Sn Fra-amption.
Claim of Right of— not excluded by Claim
of Right to pre-emption founded on Spe-
cial Agreement.
See Pre-emption. 12.
Maratib Am v. Abdul Hakim...
I. L. Rep. 1 All. 667.
Where Vendor a Hindu does not apply.
See Pre-emption. 11,
Dwarka DAStr Hitsain Baksb...
I. L. Rep. 1 AIL 664.
■ Coparceners.} By Mahomedan law one
coparcener has no right of pre-emption as against
another coparcener. 1Sohe$hv.T Lai v. Christian
(6 W. Rep. 250) and Tteka Dharee Singh v.
JUohur Singh (7 W. Rep. z6o) followed ; Roshun
Mahomed v . Mahomed Kuleen (7 W. Rep. 150)
distinguished. Lall A Nowbut Lall e. Lall a
Jbwan Lall... I. L. Rep. 4 CaL 881 ; 3 CaL
Rep. S19, 1878, P. B.
3- — — Claim by Agent — Refusal to pur.
chase before Sale.} Under Mahomedan law, the
legal forms required by that law by.a person
claiming a right of pre-emption may be observed
on behalf of such person by an agent or mana-
ger, e.g., the husband, of such person. The
right of pre-emption is void if the pre-emptor
relinquishes the purchase in plain terms, and
any indication or acquiescence in the sale to
another would also vitiate a claim after the sale
on the part of the pre-emptive claimant. But a
claim relinquished on misinformation of the
amount of sale consideration, or of the property
sold, may be resumed when the real facts be-
come apparent. A refusal to purchase before
the actual completion of a sale to another does
not in all cases bar a subsequent claim, when
the right of pre-emption accrues after the com-
pletion of the purchase. Thus, where there
has been no absolute surrender or relinquish-
ment of the claim, but where the refusal was
simply in consequence of a dispute as to the
actual sale consideration, and where the refusal
does not go beyond a refusal to purchase at the
rate demanded by the vendor, on the ground
that the actual sale price was less than that
demanded from the pre-emptor, the right of
pre-emption after the completion of a purchase
by a stranger would not be lost. Aba 01 Begah
v. Imam Bboax. Spaniie and Oldfield, JJ...I.
L. Rep. 1AU. 631,1877.
MAHOMED AS LAW-PRE-BMFTIO*
—contd
8, Sale of House.} Where a dwelling-
house was sold as a house to be inhabited as it
stood, with the same right of occupation as the
vendor enjoyed, bnt without the ownership of
the site; — Held, that a right of pre-«mp«io»
under Mahomedan law attached to such house.
Zahlth b, Nur Au, Pearson .ind Turner, JJ...
I. L. Rep. 3 All. 99, 1870.
MAHOMEDAN LAW-RESTITUTION
OF CONJUGAL BIGHTS.
See Mahomedan Law— Dower. 3.
Eidan e. Mazhar HIKA1M...L L.
Bep. 1 AIL 488.
MAHOMEDAN LAW-RETURN.
See Mahoinedan Law — Inherit-
ance- -Return. I.
Mahomed Arshac ChowdhrY v.
Sajida Bamoo...I. L. Rep.
8 CaL 70S.
MAHOMET) AN LAW— RIGHT OF CRE-
DITORS TO FOLLOW THE ESTATE OP
DEBTOR INTO THE HANDS OF A
PURCHASER FROM THE HEEft— Alie-
nation by Heir-at-law — Lis pendens.] The
creditors of a deceased Mahomedan, whether in
respect of dower or otherwise, cannot follow his
estate into the hands of a bon\ fide purchaser
for value to whom it has been alienated by the
heir-at-law, whether by sale or mortgage, iltissu-
mut Wahidunnissa v. Mussumut Shabrattan (6
Beng. L. Rep. 54) approved. Bat where the
alienation is made during the pendency of a soit
in which the creditor obtains a decree for the
payment of his debt out of the assets of the estate
which have come into the hands of the heir-at-
law, the alienee will be held to take with notice,
and be affected by the doctrine of lis pendens,
SrtiD BazayetHosseinp. DdbuCHAMD-.I. L.
Bep. 4 CaL 403, 1878, P. a; S.C. L. Bep.
6 I. A. 311.
MAHOMEDAN LAW — BALE BY
GUARDIAN— Minors when bound by— Special
Appeal.} H., being in possession of certain real
property on her own account and on account of
the plaintiffs, her nephew and niece, minors, of
whose persons and property she had assumed
charge in the capacity of guardian, sold in 1863
the property in good faith, and for valuable
consideration, to liquidate ancestral debts, and
for other necessary family purposes and wants
D,gltlzed by G00gle
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DIGEST OF CASES.
HAHOHEDAN LAW — BALE BY
GUARDIAN- (on**.
for herself and the minor?. In a suit brought
by the plaintiffs to cancel the sales : —
Held, that even if the plea that H. was not the
legal guardian of the plaintiffs when she made
the sales was good such plea could not be taken
for the first time in special appeal.
Held also, that the discharge of the ancestral
debts being a matter of necessity, and the rights
of the heirs connected with the estate on the
sole condition of its being free from incum-
brance, the plaintiffs were bound by the sales
both under Mahomedan law and the principles
of justice, equity, and good conscience. Hasan
Auv. Mbhdi Husain. Spankie and Oldfield,
JJ t L. Hep. 1 AIL 833, 1877.
See the Cases under Alienation by
Guardian.
See Mortgage. SO. 30.
Sa Bale by Guardian.
See Review. 10.
MAHOMEDAN LAW — SLAVERY -
Willa- Heritable Rights of Slave Eman-
See Act V. of 1843.
Siyad Mir UjMUDom Khan «.
Zia-ul-Nissa Becam L.
Hep. OLA. 137 ; I. L.
XUp.3Bom.4S2.
MAHOMEDAN LAW— WAKF — Mutu.
walli— Survivorship— Right to sue.] A Maho-
medan of the Sha* sect, by a deed of settlement
executed in 1838, called a wahftiama, settled
moieties of -his estate on his two wives, their
daughters, and the descendants of the donees
in each line, so long as it should exist, with
cross- remainders, on the extinction of either
line, to the representatives of the Other, with
final remainders, on the extinction of both, to
the heirs of the settlor. The settlor constituted
himself the umsir or mutuaalli of his estate
during his life, and nominated A. and B. to act as
such afterhis death with the consent of his wives.
The settlor died in 1840;^ died in 1865 ;tf sur-
vived. The wives and daughters of the settlor
also died.
The representatives of one of the daughters
sued the defendant to recover a part of the
estate, which had been sold to him by the Civil
Court, as the property of another of the daugh-
ters, on the ground that the estate on the death
MOHAMEDAN LAW-WAKF-cmfrf.
of that daughter passed as waif to her surviving
flWrf,*hat assuming the wo*/ to have validly
created, the right to bring the suit belonged
(according to Mahomedan lawj not to the heirs
or descendants of the settlor, but to the mutu-
wallis jointly. On the death of one of the
mutuvallii, a successor should have been ap-
pointed in the first place by the settlor, and
failing him, by his executor, if he had appointed
one ; if he had named no executor, the appoint-
ment rests with the Court to whom the parties
interested beneficially shouldfeave applied to fill
the vacant office.
Quart- -Whether a waif could be Created for
the purpose merely of conferring a perpetual
and inalienable estate on a particular family,
without any ultimate express limitation to the
use of the poor, or some other inextinguishable
class of beneficiaries. Phaje Sajwb Bisi v.
DauodAr PreMji. West and Pinhey, JJ...Z L.
Hep. 3 Bom. 84, 1879.
MAHOMEDAN LAW WILL.
Set Mahomedan Law. 3.
Ranee Khujooroonissa v.
musst. roushan jehan...l.
Sep. 3 I. A. 391.
MAHOMEDAN LAW— WILLA— Herit-
able Rights of Emancipator of Slave.
SooMtV. of 1843.
Savap Mir Ujmudin Khan v.
Zia-ul-Nissa Becam L
Rep. 8 LA. 137; LL.
Rep. 3 Bom. 438.
MAHOMEDAN WIDOW-Right of- to the
See Mahomedan Lav — Inherit-
ance—Return. 1.
Mahomed Akshad Chowdhrvs.
Sajida BANOO...L L. Rep.
3 Cal. 702.
MAINTENANCE.
See the Cases under Champerty.
Ordered by Magistrate— Act X. of 1873,
Ch. xli.— Custody of Illegitimate Child.'} The
provisions of Chapter XLI. of the Criminal Pro-
cedure Code (Act X. of r87a) do not enable a
Magistrate to determine the question who is the
lawful guardian of a child, but only to make an
order for the maintenance of a wife or child
DigitlzSdbvGoogle
( 9S5 )
DIGEST OF CASES.
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MAINTENANCE-ro.1 id.
On its appearing, to the satisfaction of the Court
that the husband or father has neglected or
refused to do so, though possessed of sufficient
There is nothing in the Code which
Magistrate ordering a mother to surrender an
illegitimate child to the father ; and her refusal
to surrender it is no ground for stopping an
allowance previously ordered. Lall Das v.
Nekunjo Bhaishiani. Ainslie and Brougklon,
JJ I. L. Bep. 4 CaL 374, 1B7S.
MAINTENANCE OF BU»D-A«m>fa
Right— Escape of Water— Injury to Neighbouring
Pnptrty—W* major.] Where the defendam
had acquired a prescriptive right to maintain .-
bund on his own land, and thereby pen back the
waters of a natural stream flowing through it, and
there was nothing to show that, by agreement i>
otherwise, the accumulation of water was limit-
ed to a certain quantity ; or that when the
water rose to a certain height, the defendant i
the plaintiff, whose land adjoined the defei
dant's, was bound or entitled to open a passage
for the surplus water ; and where the defendant
was not shown to have failed in making propei
provisions for dealing with such quantities o
water as might reasonably be expected to accu-
Held, that the defendant was not liable for
damage caused to the plaintiffs land by the
escape or overflow of water caused by an
usual inundation. Ram Lall Singh «. Uli.
Uhary Muiiton. Ainslie and Law/erd, JJ...
I. L. Bep. S Cal. 77b, 1877.
MAINTENANCE OF ILLEGITIMATE
SON.
See the Cases under Hindu Law—
Maintenance of IUegitimati
Bon,
— — Adulterous Offspring of Sudra entitled t<
— but not to inherit.
See Hindu Law — Inheritance -
Illegitimate Son. 4. 5. S.
And Hindu Law— Maintenance of
Illegitimate Son. 1.
Rahi v. Govind...I. L. Hep. 1
Bom. 97.
Naravan v. Laving..,! L. Sep.
8 Bom. 140.
Viramuthi v. Sinoaravelu,
L. B*p. IMad.j
MAINTENANCE OF ILLEGITIMATE
BON-™«W.
Alienation of Ancestral Estate for.
See Hindu Law — Maintenance of
Illegitimate Son. 8.
Rajah Parichat t. Zalim Singh.
L.Sep. 4 L A. ISO.
Assignment of Ancestral Property for.
See Hindu Law — Maintenance of
Illegitimate Son. 8.
Rajah Pakichat tr. ZiUM Singh.
L. Bep. 4 L A. 158 ; L L.
Bep.3 Cal. 214.
MAINTENANCE OF SON.
St* Hindu Law — Maintenance of
Son. 1. 3.
Ram Chandra u. Sakha ram.. I.
L. Bep. 3 Bom. 346.
Savitribai v. Lax iii b a i... Ibid.
673-500.
MAINTENANCE OF WIDOW.
,s"ef Hindu Law — Maintenance of
Widow.
-Amount of — Ci
> be c
See Hindu Law — Maintenance of
Widow. 5. 18.
S KE EM UTTY N 1 TTO K ! S S OR E E P.
JoGENDRO NAUTK...L. X
OLA
65.
Nabhak Singh p. Dirgnath
Kuar .....I. L. Bep. S All.
407.
- Daughter- in- Law, Right of, to.
See Hindu Law — Maintenance of
Widow, B.
Gahga Bai o. Sit a Ram...L L.
Bep. 1 AIL 170.
- Gift by Husband of all his Estate— Liabi-
lity of Donee for— of Donor.
See Hindu Law — Maintenance of
Widow. 17.
Jahna v. Machul Sahu...L L,.
Bep. 2 AIL 315.
- Grant in lieu of— Resumption — Limitation.
See limitation. B.
Petambbr Baboo ». Nilhokv
Singh,..!. L. Bep. 8 Cal. 70S.
Diarized by Google
DIGEST OF CASES.
(
MAINTENANCE OF WIDQW-ontd.
— Grant of Money in lieu of— Alienation by
Will of Lands purchased with — Valid.
And Hindu La
Nrllaikum.
hal I. L. Rep. I Mad
166.
- Limitation to Suit for.
See Hindu Law Maintenance of
Widow. 4. 6.
Krishna Mokun v. Okhilomiw.
I L. Bep. 3 CaL S31.
Jtvt v. Ramji.,,1. L. Bep. 3
Bom. 307.
See Limitation. 33.
Limitation to Suit for — and Arrears under
a Will creating no Charge on the Inherit-
ance of Testator's Estate.
See Limitation. 83.
NARAVANRAV V. RaHABAI ... L.
Bop. OLA. 114.
Multiplicity of Suits for.
See Multiplicity of Suits.
Lakshhanv. Satvahhahabai...!.
L. Bep. 3 Bom. 494, 497.
SlDUHGAFA V. SlDAVA Ibid.
624, 680.
Purchaser bond fide without Notice of chum
for.
See Hindu Law— Maintenance of
Widow, 1. 18.
Adhibanbb Nakain v. Shona
Malee...L L. Bep. 1 CaL
LaKSHUAHV. SATVABHAHABAI...L
L. Bep. 3 Bom. 494.
- Resumption of Grant io lieu of — Limita-
Sei Limitation. 8.
Prtambir Baboo «. Nilmonv
Singh,.. I, L. Bep. 8 Cal.
MAINTENANCE OF WIDOW -eentd.
— Right of Hindu Widow to Separate Main-
tenance— Arrears of Separate.
See Hindu Law— Maintenance of
Widow. 3, 3. 7.
BamoO Vinayak v. Yawjnabai...
I. L. Bep. 3 Bom. 44.
Kasturbaio, Shivajieam Devku-
ron Ibid. 373.
Naravanrav v. RamAbai......L,
Bep. OLA. 114; I. L.
Bep. 8 Bom. 416.
Right to — Accrues according to her Wants
and Exigencies — Separate Residence of
Widow no Bar to Right.
See Hindu Law— Maintenance of
Widow. 7.
Naravanrav i. Ramabai L.
Bep. 6 I. A. 114 ; L L.
Bep. 8 Bom. 415.
Separate Residence of Widow not gene-
rally Bar to Right of.
Sec Hindu Law— Maintenance of
Widow. 7.
Naravanrav «. Ramabai L,
Bep. 6 I. A. 114; I. L.
Bep. 3 Bom. 416.
Suit on Decree for.
See Multiplicity of Buita. 1. 9.
SlDLINGAPA e. SlDAVA I. L.
Bep. 3 Bom. 634, 630.
Lakskmanb. Satvabhamabai.,.1.
L. Bep. 2 Bom. 634.
Suit for Reduction of.
See Hindu Law— Maintenance of
Widow. 10,
Ri/ha Bai ». Gauda Bai...L L.
Bep. 1 All. 694.
See Multiplicity of Suite. 3.
SlDUHGAFA V. SlDAVA I. L.
Bep. S Bom. 634, 680.
MAINTENANCE OF WIFE— Separate.
Sh Hindu Law— Maintenance of
Wife. 1. 3. 8.
Casturbbaiv. Shiva] i ram... I. L
Bep. 3 Bom. 879, 389.
SlDLINGAPA V. SlDAVA I. L.
Bep. 3 Bom. 634, 634.
DigitlzSdbvGoogle
DIGEST OF CASES.
MAJORITY— Age of— for Hindus Domiciled
and Resident in Calcutta.
See Age of Majority.
MoTHOORMOHUN ,. SOOKENDKO ...
I. L. Hep. 1 Cal. 108.
MAJORITY AOT EC. OP 1875— J 3—
Minor— Guardian ad Litem.] The appointmenl
oE a guardian ad litem is sufficient Io make the
minor party subject to % 3 of Act IX. of 187s,
and _to constitute bis period of majority at
twenty-one, at any rate so far as relates I
property in suit, notwithstanding that such
would, but for such appointment, have attained
majority at the age of eighteen, Sutyya
GHOSAL r. SjJTTYANirND GffOSAL. PontiftX, J.
1. 1.. Rep. 1 Cal. 388; 1876.
MALABAR LAW— Lands acquired by Mem-
ber of Malabar Tirwad.
See Declaratory Decree. 10.
Chandu v. Chathu Nambur ...I.
L. Rop. 1 Mad.
1. ■ Alienability of" Sthanam " Lands.}
Lands attached to the " Sthanam " of Sthanam.
dars in Malabar, arei unless the contrary be
specifically proved in any particular ease, liable
to alienation and charge at all events for the
payment of debts incurred for the conservation
of the sthanam. Chshinikaba M. Nair v.
Kilvahaht U. Mbhon. Morgan, C. J., and
Holtomay, J......I. L. Sep. 1 Had. 88, 1876.
2. fffnvTTBlo/Karanavan/TOW Office.}
In such a state of property and family relation:
as that of Malabar, there must be a constani
conflict of interest with duty. This, however.
throws upon the Courts, in case of such conflict,
the duty of checking acts referable to in
at tfcat character, but does not justify the
merit of the karanavan as a mere trustee, officer
«f a corporation, or other person in a similar
position. The person to whom a karanavan
bears the closest resemblance is the father of a
Hindu family. Like dim, his situation at the
head of the family comes to him by birth. He
should not be removed from bis office except
on the most cogent ground. The office
one conferred by contract, but is the offspring
of bis natural condition.
In considering whether a karanavan should
be removed from his office, the question is not
merely whether he is unworthy of that office,
for that would be no ground for removing him,
MALABAR LAW- contd.
but whether his removal will benefit the family.
The state of families juad property in Malabar
will always create difficulties ; and their solution
will not be assisted by bringing in the anarchy
and insecurity which will always follow upon
any attempt to weaken the natural authority
of the karanavan.
Where, therefore, a karanavan was found to
have made perpetual grants of certain lands be-
longing to his tdradd for other than family
purposes, and to have made demises of certain
other lands belonging to his tarwid for un-
usual periods on no justifiable grounds : —
Held, that this did not constitute sufficient
ground for his removal from office, his conduct
not having been such as to show that he could
brined in his position without serious
risk to the interests of the family, Eravani
RkvivakmaNv. Ittapu Revivarhaw. Morgan,
C].,*a& HaUoway,]..Xlt. Rop. 1 Mad. IBS.
1876.
8. ■ Sight of Karanavan to revoke Au-
thority of Anandravan — Timid Property.]
The plaintiffs, the karanavan and senior anan-
dravan of a certain tirwad, sued to recover
from the defendant, their anandravan, certain
tirwad property alleged to have been made
him in 1SS6 by the plaintiffs' former
karanavans, G. and C, on the defendant's
agreeing to collect the rents, pay the revenue,
his branch of the family, and render
yearly accounts. The plaintiffs stated that after
the death of G. and C, the first plaintiff in 1871-73
permitted the defendant to continue in pos-
1 the same terms, but that the defend -
ince 1873 refused to render accounts.
The defendant pleaded, but in the opinion of the
lower Appellate Court failed to prove, that
there had been a division of the tirwad between
G. and C„ and that the plaintiff and defendant
ipectively were their representatives. And
the lower Appellate Court held that the first
plaintiff was by succession to the karanavastha-
entitted to the return of the tarwid pro-
perties to his management, and was not bound
by the arrangements of prior karanavans, and
might revoke any permission given by him, ex-
press or tacit, to the defendant to manage any
of the tirwad properties : —
Held, on special appeal, that upon the findings
of the lower Appellate Court, the defendant's
position was simply that of aa agent or manager
of a portion of the family property, and that it
lionized by Google
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DIGEST OF CASES.
< 963 )
MALABAR liAW--ro«W.
was competent to the family, as represented
by the karanavan and senior anandravan, the
plaintiff in this suit, at any time to revoke that
agency, and require that the property so in the
defendant's control and management be replaced
under the karanavan. Govindanii. Kannavan.
Innes and Kindersley, ]]...!. It. Rerp. 1 BCad.
351, 1878.
MALICE.
Set Act XVIIL of I860. 9.
Collector of Sea Customs, Ma-
dbas, «• punniar chitham-
BARAK I. It. Rep. 1
Had. 80.
Action for Costs for improperly Putting the
Law in Motion.
See Champerty, 2.
Rah Coohar i. Chltnder Canto.
L. Rep. 1 1. A. 38 ; I. I..
Rep. 3 Cal. 238.
Arrest— Ex parte Decree — Want of Reason-
able and Probable Cause.
See Damages. 4.
RajChundero. ShamaSoonderi.
I. L. Rep. 4 CaL 583.
MALIKANA- - Talookdar's Right to.
See Act I. of 18H0. 3. 4.
Widow op Shunkur Sahai v.
Rajah Kashi Pbrskad...L.
Sep. 4 I. A. 198, n.
Gouri Shuhker v- Maharajah
or Bulranpore...L. Rep. 6.
I.A.I; I. L, Rep. 4 Cal.
888.
XAUEAN A RIGHTS PAYABLE FOR
EVER— Attachment of.
See Execution of Decree. 10.
N ILK UNTO It. HUREO SOONUKREB...
I. L. Rep. 3 Cal. 414.
KAMLATDAR- Order of— under Bombay
Act V. of 1864.
See Bombay Act V. of 1864/
Babappa e. LAKSHHAPPA...L It.
Rep. 1 Bom. 634.
MANAGEMENT 07 PAGODA-Aliena-
tion of the Right of.
See Alienation of the Right of Ma-
nagement of a Pagoda.
Rajah Vurmah Vaua v. Ravi
Vukmah Muiha.-Ii, Rop. 4
LA. 76.
MANAGEMENT OF A RELIGIOUS
ENDOWMENT, SUIT FOR.
See Suit for Management of a Re-
ligious Endowment.
Panchcoivrie Mull v. Chunnoo-
lall...L L. Rep. 8 Oal. 663.
MANAGER— Appointment of— on Decree on
Mortgage.
See Civil Procedure Code, Act
VDX of 1859, § 343.1.
WOHDA KHAHUM V. RAJROOP
Koer I. L. Rep. 3 Cal.
835.
Attachment— Act VIII. of 1859, i 343.]
The appointment of a Snrbarakur or ma-
nager tinder § 343, Act VIII. of 1859, by
a Court does not supersede an attachment.
BuNWAREfi LALL SaHOO V. MOHA-
beir PnosiiAD Singh L.
Rep. i I. A. 89 ; 12 Bang.
L. R. 297, 1878 ; S. C.
under Act XI. of 1859.
MANAGER APPOINTED BY COURT,
POWER OF— Act Till, of 185,9, § 343.
See Mortgage. 23,
MoRANc. MlTTU BlBBE I. L.
Rep. 2 Cal. 68.
MANAGER OF HINDU UNDIVIDED
FAMILY- Authority ot
St 0 Hindu Law— Manager .
KuMARASAMt «. Bala Nagappa...
I. L. Rep. 1 Mad. 385.
- Debts Incurred by — in carrying on Joint
Ancestral Trade — Power of — to pledge
Joint Ancestral Property— Insolvency —
Title of Official Assignee.
Set Hindu Law— Maintenance of
Widow. -9.
Jo hurra Bibee v. Sreegopal
Misser-.L L. Rep. 1 Cal.
470.
See Hindu Law— Ancestral Trade.
JOYKtSTO CoWAR 0. NlTTYAHUND
NUNDV...LL. Rep. 3 Cat.
738.
Purchase by— in his own Name, but for the
Family at Revenue Sale.
Sr* Act I. Of 1846,* 21.
Toohoun Singh b. Pokhnaraim
Singh... L.Rep.lLA. 342.
DigitlzSdbvGoogle
( MS )
DIGEST OF CASES.
( 60* )
MANAGER OF LUNATIC'S ESTATE—
Ap point men I of.
&r Act XXXV. Of 1856, f 8.
Manohar Lal p. Gaum Shan
KAR...I. L.B*p. 1 All. 476,
MANAGER OP WEST INDIA ES-
TATES, LXSN or.
See Mortgage. 22.
MoKAN D. MlTTl) BlBEE I. L.
Bop. 2 CaL 58.
MANDAMUS.
Snr&igh Court Criminal Procedure
ActX. of 1875, § 147. 1.
Malcolm v. Gasper,..! t. Sop.
9 Cat. 378.
MANDATORY IKJTJKOTIOM— M»ri™/
Lights— Obstruction — Notice— Dtlay— Acquies-
cence -Damages— Demolition of Building.] The
defendants having polled down their home, pro-
ceeded to re-erect it, notwith standing notice
from the plaintiff not to obstruct the access of
light and air to hi* house, in such a manner as
to obstruct the plaintiffs windows so that the
two central rooms on the east side of his house
on the second floor were made unfit for occupa.
tion during the day without the use of artificial
light.
The defendants completed the building of
their house in October or November 187*-
Criminal proceedings were taken by the plain-
tiff against the defendants in connection with
acts done by them in the course of the rebuild-
ing of their house, which proceedings were
pending until December 1872.
On the 7th October 1873 the plaintiff Institu-
ted a suit for a mandatory injunction directing
the defendants to pull down their house.
Held, tst, that the darkening of (be plaintiff's
rooms, so as to render them unfit for occupation
in the day-time without artificial light, was an
injury which did not admit of being measured or
redressed by damages, and that the plaintiff was
entitled to a mandatory injunction directing the
defendants to pull down so much of their house
as was necessary to stop the injury ; there having
been no acquiescence on the part of the plaintiff
and no delay in bringing his suit such as in any
way to prejudice the defendants, or disentitled
himself to that relief.
2nd, that the probability that the defendants
would suffer more by the demolition of their
house than the plaintiff, if his claim could be
MANDATORY HWUHCTION- amid.
reduced to money, would suffer by being award-
ed merely a. money compensation, is no ground
for depriving the plaintiff of the relief to which
he was otherwise legally or equitably entitled,
except under special circumstances.
To determine What demolition of the house
was necessary, the Court executing it was
directed to employ a professional man, agreed
on by the parties If they could agree, or nomi-
nated by the Court if they could not. Jamna-
das Shankarlalv. Atmaram Harjivan. Wes*
and Pinhej, JJ I. L. Rep. 3 Bom. 138,
1877.
MAtfU— Authority of.
See Hindu Law— Authority of
Writera. 4. 5.
MARX OP ATTESTING WITNESS TO
WILL-INSUFFICIENT ATTES-
TATION.
See Indian Succeaaion Act X. of
1865, t 50, CI. 3.
Fkrnandei e. Alvus ..I. I.. Rep.
8 Bom. 883.
MARA VER 0A8TE.
See Hindu Law Remarriage of
Widow.
Ml'RUQAYI n. VtRAMAKAU ...I. L.
Rep. 1 Mad. 326.
MARRXAQE-in Asura Form.
See Hindu Law — Marriage in
Asura Form.
Jaixisondas v. Harkisokoas ..I.
L. Rep, 3 Bom, 9.
Between Persons of different Castes.
See Hindu Law— Marriage.
Narkaih Dhaka v. Rakhal Gain.
LL.Rep.lCal. 1.
— — Contract to Give in Specific Performance.
See Injunction. 1.
GUNFUf N A RAIN SlRCH I. L,
Rep. 1 Cat. 74.
——in India between Persons with English
Domicile.
See Indian Succeaaion Act X, of
1865, f 4.
Miller t. Administrator Gbns-
ral or Bsnqai .X L. Rep.
1 OaL 413.
Digitized byGOO^Ie
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DIGEST OF CASES.
( MO >
MARRIAGE -anti.
— presumption of-
Stt Hahomedan|Law. 9.
Ranee Kkujooroonissa it. Mussr.
ROUSHAN JBKAN...L. Rep. 3
L A. 291; I. L. Hop. S
Cal. 184.
Revocation of Will of Jew bj- Second— in
Lifetime of First Wife.
See Indian Succession Act X. of
1865, § 66.
Gabriel v. Mordakai L L.
Rep. 1 CaL 148.
MARRIED WOMAN— Capacity of— to con.
See Hindu Lav— Capacity of Har-
ried Woman to Contract.
NATKL'BHAI t>. JAVHER......I. L.
Hap . 1 Bom. 121.
See Compounding Offences. 4. 7.
Reg. tr. Mutharan ..I. L. Hep.
1 Had. 191.
Rec-.».Jetha I. L. Hep. 1
Bom. 158, n.
MARRIED WOMAN'S PROPERTY ACT
III. OF 1874— Domicile—Separate Property of
Wife—Decree against.} The plaintiffs sued the
defendants, husband and wife, who were British
subjects, married in 1854, and having an Eng-
lish domicile, for wages for work done by him
as a dime for the female defendant, who engag-
ed him, and who carried on business as a
milliner separately from her husband, under
another name, the business having been at;
with money advanced to her by her husband,
who, however, had no interest or concern in t
business. Held, that Act II I. of 1874 applied
persons having an English domicile, and that the
wife alone was liable, and that the decree ag:
her should be executed only against her s
rate property. Alumudv t. Braham. Garth,
C.J., and Martby, j... I. I,. Rep. 4 Cal. 140
H Cal. Rep. 431, 1878.
§§ 7 and 8.
See Huaband and Wife. 1.
Harris v. Harris ...I. L. Sop. 1
Oal. 888.
HARRIED WOMAN'S SEPARATE
PROPERTY — Harried Woman — Parsii
Held, in the absence of any rule applicable to
Pariii other than the English law, following
HARRIED WOMAN'S SEPARATE
PROPERTT— contd.
Graham v. Londonderry (3 Atk.393), that a Pa»i
husband had no right to demand from the widow
of his deceased father, in whose hands they were,
delivery to himself of ornaments purchased for
ife by his deceased father, as they were the
separate property of his wife. DhanjIBHaI B.
Gujrat v. Navazbai. Green, J. ..I. L. Rep.
2 Rom. 75, 1877.
8- Will— Legacy—Sole and Separate Use
■Purchase of Lands with Money raised on such
Legacy.} C, a married woman, was entitled to a
legacy of Rs. 12,000, under the will of her
father, which bequeathed to her that sum, "ab-
solutely and for her own use and benefit, free
from the control, debts, and liabilities of her
present or any future husband," and the said
of Rs. 11,000 was by the will directed to be
paid to her " on her sole and personal receipt."
entitled, she borrowed from her hus-
band the purchase money of a certain estate on
the understanding that she would pay him back
ley when she obtained her legacy. The
nee of the estate was made to C, but not
to her separate use. C. subsequently assigned
her legacy, and out of the proceeds repaid her
husband the purchase money advanced by him.
The estate in question having been attached
ion of certain decrees against C.'s hus-
band, C. instituted a suit for a declaration of
her right to the possession of the property as
full proprietor: —
Field, that the effect of the bequest in the will
of C.'s father was to give to the plaintiff not on! j
and exclusive use of the legacy money,
but sole and absolute control over its disposal.
When from the terms of the gift, settlement or
bequest, the property ia, expressly or by just
rate and exclusive use (for technical words
e not necessary), the intention will be fully
ted on, and the rights and the interests of the
ife sedulously protected in equity. The words
of the bequest to the plaint iff excluded the marital
rights of her husband. There being in the
bequest no clause against anticipation by C, the
fact that she did (as she was entitled to do)
anticipate the legacy by accepting the purchase
money raised for her by her husband on its se-
curity, did not in any way change the legal
character and conditions of the legacy itself,
which could not be defeated by any c
of her husband or his creditors, nor
conversion of the legacy bring it 1
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DIGEST OF CASES.
( see )
HARRIED WOMAN'S SEPARATE
PROPERTY- con id.
contra! of her husband, but the property pen
chased by the plaintiff was her own separate
property, and was not subject to the debts 01
liabilities of her husband. Hurst e. The Mus-
soorie Bank. Stuart, C]., and Spankie, J... I.
I,. Rep. 1 All. 703, 1878.
8. Purchaser nitk Notice of Claim of
Wife.'} In a subsequent suit by a purchaser
of the property in suit in the above case, at
an auction sale in execution of a decree against
J., the husband of C, with notice of the claim
set up by C, it appeared that C. and her hus-
band were married before Act X. of 1865 came
into force, and were torn and domiciled in
India. It was contended that the conveyance
to C. operated to convey the legal estate to
her husband, and that the conversion of the
legacy operated to set it free from the separate
use of C, and that her husband was entitled to
rents and profits during her life, and might ob-
tain an estate by curtsey if be survived her, and
that this interest passed to the plaintiff at the
execution sale. In delivering judgment the
Court say — "We are not prepared to hold that
the English law would regulate the interest of
% and C. in landed estate in this country acquir-
ed by the wife during coverture, but if it were ap-
plicable, and if any interest in the estate accrued
to C.'s husband, in view of the agreement between
her and her husband" (for payment by her to him
Df the amount of the purchase money), "it must
be held that it Came to his hand upon a contract
between them that he would hold it in trust for
her. The plaintiff purchased with full notice of
the claim set up by C, and it must be held that
his purchase will not defeat ber title." Beres-
TORD v. HuRSr. Turner, C.J., and Pearson, J...
I. I. Rep. 1 All. 772, 1878.
MARKET VALUE.
Set Probate Duty. 1.
The last Will of Ramchandra
Lakshmanji...I. L, Rep. 1
Bom. 118
MASTER AND SERVANT— Liability of
Master for the Wrongful Act of his Ser-
See Principal and Agent. 1.
Bombay Burmah Trading Com-
pany, LiMn-ED v. Mirza Ma.
homed Ally Shirazee...L.
Rep. I. A. 130; S.C.I. L.
Rep. 4 CaL 116.
MASTER AND SERVANT —con td.
Suit for Damages for Wrongful Dismfr.
sal— Incomprlence— Rendering Trut and J*st
Accounts.} The plaintiff having obtained re-
commendations as a tea assistant in the de-
fendant company's garden in Assam, came out
to Calcutta, and after some interviews with the
defendants' agents there, entered into an agree.
men t with the defendants to enter into their ser-
vice as assistant in their tea-gardens for a
period of three years. The agreement stipulat-
ed that the plaintiff should, " when required to
do so, render just and true accounts, and pre
every other particular and information of all
moneys, &c, entrusted to him, or that may come
into his possession, power, or custody, or under
ontrol" i and it was also agreed that the de-
fendants should " be at liberty to annul this
agreement at any time for wilful misconduct of
the plaintiff in not fulfilling the terms and con.
ditions to be observed by him, or if he shall be
prevented by reason of continued illness from
attending to, or be hindered thereby in the
performance of, his duties, or by reason of the
bankruptcy, insolvency, or dissolution of the
defendant company," and in those cases the
ilary was to cease, and the plaintiff be dis-
charged from the defendant company's service.
The plaintiff Went to Assam, worked for a short
period in the defendant's garden, and was then
dismissed from the company's service on the
ground of his incompetence. In a suit brought
wrongful dismissal, the Judge of the
ill Cause Court was of opinion that, under
circumstances, there was no implied
anly on the part of the plaintiff of his com-
nee, and the grounds for dismissal having
been expressly stated in the agreement, the
defendants were not justified in dismissing him
another ground, and therefore should oot be
allowed to give evidence of his incompetence: —
Held, on reference to the High Court, that tbe
plaintiff having expressly undertaken to render
rue and just accounts, his incompetence to do so
'ould, if proved, be an answer lo the action, and
therefore, that the defendants ought to have been
allowed to give evidence that he was incompetent.
"True and just accounts" meant such accounts
as an inexperienced assistant in a lea-garden
might reasonably be asked to render, and were
not to be interpreted merely as an undertaking
that the plaintiff would act honestly by his em-
ployers. Held also, that the agreement expressly
stating the grounds of dismissal did not preclude
hy Google
)
DIGEST OF CASES,
( 870 )
KABTEB AND SERVANT—™;! id.
the defendants from dismissing the plaintiff (or
incompetence. MacGillivray v. The Joka)
Assam Tea Company. Garth C. ]., and Mac-
phervtn, j I. L.Rep, 2 Gal. 38, 1876.
MATERIAL ERROR.
See Criminal Procedure Code, Act
X. Of 1873. §3 £94 and 297.
I. L. Rep. 3 Cal. 110.
s not — under
Misappreciation of Evidence
Act X. of 1872, f 197.
See Criminal Procedure Code, Act
X. of 1872, i 287. 1. 3. 4.
lit the mailer of Hardeo . I. L.
Rep. 1 All. 138.
In the matter of Aurokiam I.
L. Rep. 2 Mad. 38.
Empress v. Donnelly L L. j
Rep. 9 Cal. 403, 1877.
Unless there has been great Laxity in
Weighing and Testing Evidence.
See Criminal Procedure Code, Act
X. of 1877, $ 297. 8.
Empress d. Mhru I. L. Rep.
2 All. 338.
MATERIAL ERROR IN NOTIFICA-
TION OF SALE— As to Amount of
Government Revenue.
See Sale in Execution of Decree. 18,
Gikdhari Singh «. HurdoNarain
Singh L. Rep. 3 I. A.
280.
MATERIAL IRREGULARITY AT
EXECUTION SALE.
Set Bale in Execution of Decree.
Ghazi v. Kadir Baksh I. L.
Sep. 1 All. 221.
— — Insufficient Description of Place of Sale-
Proclamation not made on Spot — Sale by
Civil Court of Land paying Revenue,
though Revenue remitted for Term of
Yean.
See Bale in Execution of Decree. 8.
Showers ». Seth Gobind Dais...
L L. Rep. 1 All. 400.
MATERIAL IRREGULARITY AT
EXECUTION SALE-[0«W.
Postponement of Sale — Absence of Fresh
Proclamation giving Notice of Date of
Adjourned Sale is.
See Sale in Execution of Decree, 8.
Gopee Nath Dobey d. Roy Luck.
hipat I. L. Rep. 3 Cal.
642.
Release from Attachment before Sale of
Part of Property advertised for Sale-
Omission to publish Fresh Proclamation
See Bale in Execution of Decree. 11.
Sin ei Prokash Singh «. Sardar
Dayal Singh... I. L. Rep. 3
Cal. 644.
MATERIAL MISSTATEMENT IN PE-
TITION FOR SPECIAL LEAVE
1 TO APPEAL.
See BengalReg. VIH. of 1819, §8;
CI. 2. 1,
Ram Sabuk Bose 0. Monmohini
Dosser. ..L. Rep. SLA. 71.
MATTERS RELATING TO REVENUE.
— Jurisdiction of High Court in.
See Jurisdiction. 13.
Collector or Sea Customs, Ma-
dras, -J. PlINNIAR CHITHAM.
■aram. ..I. L. Rep. 1 Mad.
89.
turn valet quod fieri non debuit.
See Hindu Law—Adoption. 6. 7.
Gopal c. Hanmant ..L L. R3p.
8 Bom. 273,
Bhagirthibm e. Radhabai
Ibid. 298,
Caveat Emptor.-] Per Stuart, C. J. — "It
was argued before us that the doctrine of caveat
emptor does not apply to a public sale ; but fur
:his opinion there does not appear to beany
minority. Such a view of the law probably
irises from a misapprehension of the rules of the
common law of England as to sales in market
overt, but which can have no possible application
to the sale in execution of a decree in India of
the rights and interests of a minor. The doc.
trine of caveat emptor relates to defects, latent
defects, which the seller, at the inception of the
contract, does not or is not bound to know or to
inquire into, the purchaser taking the risk of Ibc
Digitized byGOO^Ie
DIGEST OF CASES.
( «3 )
KAXIJ»-«»M.
ttalus quo. The doctrine in truth, if it does
not contemplate absolute good faith on both
sides, at least puts the burden of inquiry and
investigation on the seller {sic), but it has not
the same application where there is anything in
the nature of bad faith or fraud."
Per Pearson, Turner, Spankie, and Oldfield,
JJ-— " If the doctrine of caveat emptor applies
where a sale in execution of a decree has been
practically set aside, then it may be proper to
hold that the omission to see that the order of
sale was warranted by the decree, amounted to
such a want of reasonable care as to deprive the
purchaser of his right to relief. But should no
the question of what amounts to reasonable car,
be considered in reference to thi
of the place? In England purchj
estate are rarely made without the i
of a solicitor anda scrutiny of title. In these pro-
vinces such precautions are almost entirely
unknown. However that might be, it would
be going too far to hold that the mere omission
to see that the order for sale was warranted
by the decree ought to deprive the purchaser
of relief (under the circumstances at present
. known to the Court), if on other grounds he is
entitled to it.
Makundi Ut o. KaUwila...!, L.
Rep. 1 All. 668, 573, 574
679.
S. C. under Sale in Execution of
Decree. 13.
— In pari delicto, potior est conditio possidentis
See Estoppel. 6.
Param Singh ». Lalji Mal...I.
L. Rep. 1 All. 403.
— — Sic utere too alienum non tadas.
See Bight to Fiah in the Sea.
Baban e. Nagu I.Ii.Bep.S
Bom. 18.
XAYUKHA— Authority of.
Sakarah v. Sitabai.,1. L. Rap,
3 Bom. 303.
Lalubhai o. Mancoovehbai ..L
L. Rep. 2 Bom. 338.
MORARJI GOKALDAS V. PARVATIBAI.
I. L. Rep. 1 Bom. 177.
MEASURE OF SAVAGES— For Breach of
Contract to take Goods, Collateral Con-
tract by Vendor.
See Duma gee. 3.
Cohen o. Cassim Nana I. L.
Rep. 1 Cal. £64.
Infringement of Patent.
Sec Infringement of Patent.
Sheen o. Johnson. ..I. L. Rep.
2 All. 368.
Wrongful Attachment of Property of Third
Person — Loss of Property while under
Attachment — Liability of Execution Cre-
See Liability of Execution; Credi-
tor ia Damages for Wrong-
ful Seizure.
Gopal if. GOKALDAS...X. L. Rep.
8 Bom. 74.
Wrongful Conversion of Timber — Market
value at Place where Principal Market
exists, less Cost of Carriage,
See Damages. 4.
Bombay Burmah Trading Cor-
poration V. MlRZAH MaHO~
ued Ally I. L. Rep. 4
Cal. lie i L. Rep. li I. A.
180.
MEMORANDUM OF ASSOCIATION—
Provision in — empowering Sub-division of
Shares.
Set Agreement to take Shares in
a Company. 1,
ANANDjI VlSRAH tr. NAKIAD S. &
W.Co IL. Rep. I Bom.
320.
MERGER.
See Mortgage. 10. 85. 39.
Kalifrosonno v. Kamini Soon-
deri 1. L. Rep. 4 OaL
470.
VrnkataNarasammahs.Ramiah-
I. L. Rep. 3 Had. 108.
Hassoon Arrav. Jawadoohissa.
I. L. Rep. 4 Cal. 28.
Mortgage— Effect of Subsequent Mortgage.-]
A creditor holding a mortgage on the lands of
his debtor does not necessarily surrender that
"'gage, or lower its priority, by taking a sub-
sequent mortgage.including the same lands with
Digitized byGOO^Ie
DIGEST OF CASES.
( m )
other lands, (or the same debt. Whether the
earlier mortgage becomes merged and extinguish-
ed or not is a question of intention. Goluk-
NATH MlSSER V. LaLLA FREH LaL. JackSOH
and White, JJ...I. L, Eep. 3 Cal. 307, 1877.
MERITS, KUBOU NOT AFFECTING-
Absence of Notice of Action,
See Act XV. of 1873, §§ 28 and 43.
Municipal Committee <j v Morad-
abad St. Chatri Singh... I.
L. Bep. 1 All. 268.
Improper Admission in Evidence of Un-
stamped or Insufficiently Stamped Docu-
See Error not affecting the Merits.
1.
Afzal-un-Nissa a. Tej Ban. ..I.
L. Rap. 1 AIL 726.
See Appeal- -Civil. SO.
Kiioub Lali.it. Jungle Singh.
I. L. Kep. 3 CaL 787.
— Non-Joinder of Co-Sharers in Suit for
Enhanced Rent.
See Co-Sharers of Land. 4.
BOYDONATH Bag V. GRISH CHUN-
deb Rov. ..I. L. Rep. 3 Cal.
26.
i Non-Joinder of Local Government in Suit
against Municipal Committee where Dis-
trict Magistrate impleaded as represent-
ing Local Government.
See Act XV. of 1873, §§ 28 and 48.
Municipal Committer of Morad-
abad o. Chatri Singh I.
L. Sep. 1 All. 869.
See Civil Procedure Cods, Act
VLT.I. of 1869, S 187. 1.
DlLDAK HOSSEIN V. MUjEEDUN-
nissa ,,I. L. Bep. 4 Cal.
ess,
See Execution of Decree. SO.
HURRODURGA V. SHARRAT SOON.
UERV...I. L. Sep. 4 Cal,
674.
PBOFITS-conrrf.
See Hesse Profits. 1. 4.
See Interest. IS.
HuRROPERSAUDd-SHAM:
L. Bep. 5 1. A. 31; S.C.I.
L.Rep. SCal. 654.
Suit for — Misappropriated — Limitation-
Act XXIII. of 1 86,, J 11.
See Mesne Profits. 5.
See Bight to recover Government
Revenue paid during Wrong-
ful Possession.
TiluckChandb.SoudaminiDasi.
I. L. Sep. 4 CaL 666.
Suit to Redeem — Laches.
See Limitation. 19.
JUGGERNATH V. SVUDSHAH I..
Sep. S I. A. 48.
1. Execution ef Decree—Act XXIII. of
l86l, f 11— Subsequent Mesne Profits— Interest—
Estoppel.] The appellant having obtained in
[850 a decree for a moiety of the land the sub-
ject of his suit, with an ascertained sum as his
share of the mesne profits thereof for the current
ear 1858, petitioned in the execution proceed-
igs for subsequent mesne profits with interest
hereon, and for interest on the amount already
decreed. It appeared that as regards the subse-
quent mesne profits the defendant (pending his
appeal) had executed certain security bonds to
the Court in which he had undertaken to account
in respect thereof in the suit : —
/rW<*,thatf 11 of Act XXIII. of 1S6] having
been construed by a general consensus of the
Indian Courts to mean, that when a decree is
silent as to mesne interest or profits, subsequent
to the institution of the suit, the Court executing
the decree cannot under that section assess or
give execution for such interest or mesne profits,
and secondly, that the plaintiff is still at liberty to
assert his right to such mesne profits, in a. sepa-
rate suit : — their Lordships, whatever their
opinion upon the construction of that section
might have been if the question had been res
integra, accepted the construction of the Indian
Courts as settled law ; and the plaintiff was
therefore not entitled to the interest claimed on
the subsequent mesne profits.
DigitlzSdbvGoogle
{ 97S )
DIGEST OF CASES.
( »6 )
MESNE FEOFITS-^W.
But that the liability incurred by the respon-
dent under the security bonds, was an obligation
to account in the suit for the subsequent mesne
profits of the appellant's land, which was capable
of being enforced by proceedings in execution,
and made the accounts " a question relating to
the execution of the decree " within the meaning
ofthelatterclauseof§uof Act XXIII. of 1861,
and in any case estopped the respondent from
denying that the said mesne profits were not pay-
able under the decree. Pisani v . Attorney Gene-
ral of Gibraltar (L. Rep. 5 P. C. i6> approved.
SaDASIVA PlLLAI V. RAMAL1NGA PlLLAI It.
Rep. a I. A. 216 ; 15 Bang. L. Bep. 382;
24 W. Bap. 193, 1876.
9, Execution of Decree— Act XXIII. of
■ 1861, i it— Mesne Profits obtained during Posses-
sion under Decree reversed on Appeal.] The
respondent obtained possession of certain land
under a decree, dated the 7th of May 1870,
which was reversed on appeal on the 14th
of May 1874. The appellant, the defendant
in the original suit, thereupon, seeking execu-
tion of the Appellate Court's decree, applied
for possession of the property taken in exe-
cution under the first decree, and for mesne
profits during the time she was out of possession.
The application was refused, on the ground thi
mesne profits had not been awarded by the
decree of the Appellate Court. On appeal to
the High Court: —
Held, that where property has passed in <
cution of a decree, and that decree has been
aside, the Court which gave possession of the
property is bound to make complete restitution
to the person injured by its cancelled di
and that it was therefore competent for the Court
to award to the appellant the mesne profits
claimed. Lati Kooer v. Sobadra Kooer,
Ainslieand McDonnell, ]}...!. L. Hep. 3 Cal.
720 ; 2 CaL Bop. 76, 1878.
8, Trespassers — Liability of. J Held
by Pearson, Turner, and Spanite, J].— That
when in the exercise of a bon&fide claim of right
a trespasser enters on and holds the property of
another, the owner is sufficiently compensated
by receiving an amount equivalent to the net
profits he would have himself received had he
been in possession. In such a case such costs
of collection as are ordinarily incurred by the
owner may fairly be allowed to the Irespasser,
MESNE PBOPITS— contd.
as well as such sums as must of necessity be
paid, e.g., Government revenue. But when the
trespass is altogether tortuous and malicioos,
when the trespasser has entered or continued on
the property without any band fide belief that
he is entitled to do so, where in defiance of the
rights of another he has thrust himself into ad
estate, although he may still claim all necessary
payments, such as Government revenue or
ground rent, it is not imperative on the Court,
in estimating damages, to allow the wrong-doer
even such charges as would ordinarily, but
voluntarily, be incurred by an owner in posses-
sion, but the Court may refuse to sanction such
deduction.
Per Stuart, C.J.— Whether the trespasser is
bon&fide or not, he is entitled, as against the
rightful owner, to be credited with all such pay-
ents in respect of the land as collection fees
id other village expenses. Altaf Aui. I.alji
Mal. I. L. Rep. 1 AIL 018, 1877.
4. Principle on which they should be
•ssed — Interest dr.] In determining the
)unt payable to the holder of a decree for
tne profits, the Court is bound to consider,
what has been, or what with good manage-
it might have been, realized by the party in
■ngful possession, but what the decree-holder
would have realised had the arrangement pre-
vailing at the time of his possession subsisted
all along.
Under a decree for mesne profits, the decree-
holder is entitled to interest on such profits from
the time at which they would have come to him
if he had not been disposessed. Luckhv Nabaih
j. Kallv Pando Banerjee. Birch and Miller,
JJ I. L. Rep. 4 Cal. 882; 4 Cal. Rep.
60, 1B79.
B. Mesne Profits Misappropriated —
Limitation Act IX. of 1871, Sched. II., Arts. 40,
109— Act XXf II. of 1S61, J II.] The defendant
obtained a decree in a suit brought against the
plaintiff for arrears of rent and ejectment, in
execution of which he evicted the plaintiff from
his holding, and, after getting possession thereof,
ried away certain crops then standing on the
land- The plaintiff appealed from the decree
obtained bj the defendant, and on appeal it was '
ide, on the plaintiff depositing the rent
nd the plaintiff recovered possession of
his tenure :-
D,gltlzed by G00gle
( 977 )
DIGEST OF CASES.
MESNE PROFITS-™*;,*.
Held, that a suit lor the value of the crops
carried away by the defendant, while in hi
possession under his decree, was not barred by
( II of Act XXIII. of 1861. Under that decree
the defendant was not entitled to the crops
which were then standing, and which belonged
to the plaintiff, and whether the decree was
reversed or not was immaterial ; in either cast
the plaintiff could maintain this suit.
Held also, that the suit was substantially a
suit " for the profits of immoveable property be-
longing to the plaintiff wrongfully received by
the defendant," within the meaning of Art. tog,
Scbed. II. of Act IX- of 1871, and not a suit for
" compensation for any wrong, malfeasance,
nonfeasance, or misfeasance independent of con-
tract " within the meaning of Art. 40, Shur-
nohoyek o. Pattari Sirkar. MitttT and Prin-
ttp, JJ I. L. Rep. 4 Cal. 625, 187S.
KIXITABT OFFICER— Execution of De-
See Execution of Decree. IS.
Mercer v. Narpat Rai...I. L.
Eep. 1 All, 730.
MINOR — Adoption of — Agreement between
Natural and Adoptive Parents defining
and restricting Rights of.
See Hindu Law— Adoption. 5. 17.
Radhabai v. Ganesh...I. L. Rep.
8 Bom. 7.
Rauaswami Vencatarauaiyan...
L. Rep. 6 1. A. 198.
See Alienation by Guardian. 3.
Rah Chunder Chuckerbutty t,
BrO}ONATH Mozoomdar ... I,
L. R«p 4 Cal. 829.
See mortgage. 39. 30.
Abhasee Begum v. Moharanee
Rajroop . I. X. Rep. 4 Cal.
33.
Dbbi Dutt Sahoo v. Saboodra
Bibee.-.L L. Rep. 3 CaL
383.
See Bale by Guardian.
Soonber Narain 0. Bennijd.,.1,
L. Rep. 4 CaL 78.
MINOR— contd.
Hasan Ali v. Mehdi Husain...L
L. Rep. 1 AIL 033,
See Review. 10.
Madho Das b. Rukman Sevak
Singh. ..I. L. Rep. 3 All.
387.
Alienation by Guardian of— Suit to set
aside on attaining Majority— Li mi tat ion.
See Alienation by Guardian. 1,
Prosonha Nath v, Afzolonessa.
I. L. Rep. 4 CaL 583.
Appointment of Guardian to— after Pre-
vious Refusal.
See Act IX. Of 1861, j 1.
Nehalo a. Nawal...I. I.. Rep. X
AU. 433.
— • Authority to Adopt given by (Beng. Reg.
X- of 1 793. * 33).
See Hindu Law— Adoption. 10.
JUMOONA D ASSY A *. BaHASOON-
derai.L. Rep. 8 1. A. 73;
1. 1.. Rep. 1 Cal. 339.
Custody of— Loss of Caste does not deprive
Father of Right of.
See Loss of Caste. 1.
Kanahi Rah v. Biddya Rah. ..I.
L. Rep. 1 AIL 549.
Custody of— Prostitution of Legal Guar-
dian disqualifies for Right of.
Set Mahomed an Law -Guardian.
Abasi v. Dunne. ..I. L. Rep. 1
AU. 598.
Gift to a— by Father or Guardian— Pos-
See Mahomedan Law— Gift. 9.
Ameeroonissa v. Abedoonisba.
L. Rep. SLA. 87.
— To whom Guardian ad Litem appointed.
See Majority Act IX. of 1876, { 3.
SUTTYA GhOSAL S. SUTTYANUKD
Ghosal ...I, L. Rep. 1 CaL
388.
- Kidnapping— Abetment of.
See Abetment. 4.
Rio. v, Sahia Kaundan.,.I. L.
Rep. 1 Had. 178.
Digitized by G00gle
( 979 )
DIGEST OF CASES.
(
)
MINOR— eontd.
Kidnapping — from Lawful Guardianship.
See Kidnapping. 1.
Empress v- Musadbaksh...I. L.
Hep. 3 Bom. 178.
Sale by Guardian of-
See Mehomedan Law — Sale by
Guardian. 1.
Hasan Ali s. Mkhiii Husain...I.
L. Sep. 1 AIL 633.
■ Sale by Guardian of.
Set Sale by Guardian.
SOONDBR NAKftAIH v. BENNUD
Ram. ..I. L. Bop. 4 Cal. 76.
See Alienation by Guardian. 1. 3.
Suit by Mother as Guardian of — Certificate
necessary.
See Bombay Minora Act XX. of
1864, f. 2. 1.
MuRLIDHARo. SuPDU I. L.
Bap. 3 Bom. 149.
MINOB CHILDREN 07 DECEASED
HEHBEB OF HINDU JOINT
FAMILY — Appointment of Guardian
See Certificate of Administration.
1.
GuRACHARVA V- SVAUtRAVACHAR-
va I. L. Rep. 3 Bom.
431.
MINOB GUIL— Disposal of— for purposes of
Prostitution.
Set Penal Code, f 373. 1.
Reg. v. Aruna Chellam ...L L.
Bep.lMad. 164.
MINOR'S PBOPEBTY-Alienation of-by
Certificated and Uncertificated Guardian.
See Alienation by Guardian.
See Mahomed an Law — Sale by
Guardian.
See Mortgage. 2.9. 30.
SwBeview. 10.
And see Bale by Guardian,
MINORITY.
See Act IX. of 1850, ( 20.
MOHUMMI'D BAHADOOR KHAN V.
The Collector or Bakrh.lv.
L. Bep. 1 L A. 167.
MINORITY-.™ <rf.
Act VIII. of 1859, 5 346- Act MV. of tSJa,
IS 11, «.
See Hindu Law — Alienation of
Ancestral Property. 3.
Musst. Phooi.bis Koonwar v.
Lali.a Jogeshur Sahoy...L.
Bep. 3 I. A. 7.
Accrual of Cause of Action during.
See Alienation by Guardian. 1.
Pkosonna Nath 11. Afzolonkssa.
L L. Bep. 4 Cal. 523.
Hindu Domiciled and Resident in Calcutta.
See Age of Majority. 1.
Mothooruohun v. Soorendro...
I. L. Bep. 1 Cal. 108.
Reg. XXVI. of 1793.
See Mahomedan Law— Gift. 2.
Aheeroonissa r- Abedoonissa...
L. Bep. 8 L A 87.
MIMAS— Miras tends— Proof of Mirasdar's
Title— Right of Perpetual Cultivation— Local
Usage or Custom — Long Possession.'] A sanad
is not indispensable to the proof ol mirati
tenure. The mirasdars in the Bombay Presi-
dency are very numerous, and in all probability
comparatively few of them can now produce
satiads. Many of their predecessors in title
may have once possessed such muniments of
title, which time has swept away ; but their
titles have not perished with the sanads whereby
they were created. Again, there are many
mirasdars whose predecessors never had sanads,
but who nevertheless have a perfect title.
The titles, both of those who once had but
have lost their sanads, and of those who never
had such documents, may be proved by other
evidence, if forthcoming, and long possession
is a strong element in such proof. Mirasi right,
or perpertuity of tenure, is like other facts, sus-
ceptible of proof by various means.
Therefore, where the plaintiffs claimed to hold
certain lands as their ancestral minis, alleging
a right of perpetual cultivation by the custom
of the country in virtue of their long enjoyment
of them, and sued to recover them from the
defendants, who claimed as purchasers at a
Court sale of the right, title and interest of the
inamdars of the said lands, and the lower Courts
dismissed the suit on the ground that the plain.
tiffs had failed to prove any right of perpetual
DigitlzSdbvGoogle
)
DIGEST OF CASES.
HTRA8— coHld.
cultivation of the land, the District Judge ii
appeal, observing that " no term oE occupation
as a tenant of inam lands will confer a right of
perpetual cultivation, and nothing short of a
regular sanad would Confer the plaintiff's
alleged right on them" ; —
The High Court, on special appeal, remanded
the cause for a new trial on the points whether
the plaintiffs as mirasdors, or by local usage in
virtue of their length of possession, and unifor-
mity of payment of rent or assessment or
otherwise, previously to the Court sale to the
defendant, acquired a right to hold in perpetuity
the lands in question on payment of a fixed
or other rent ascertainable by local usage.
BabAJI v. NAKAYAN. Wcstropp, C.J.,and West, }
L L. Rep. 8 Bom. 840, 1879.'
S. C. under Construction of Sanad
S, and Practice— Civil. 10.
2. — — Grant in Inum— Right of Mirasdar
to hold at an Invariable Rent — Enhancement
by Inamdar.] The plaintiff, the Inamdar of
certain lands granted to bis father in inam by
the Satara Government, which grant was
recognized by the British Government, sued
the defendants, whom he described
plaint as his yearly tenants, alleging that
he had by notice called on them to pay him
higher rate of rent or to quit The defendants
alleged that they and their ancestors held the
land as mirasdats under the Satara Government
previous to the grant in inam to the plaintiff'
father, and denied the plaintiff's right to demand
an enhanced rent : —
Held, that if the defendants ot their ancestors
bad, as against the Satara Government, the
right to hold the lands in perpetuity at a fixed
rent, they would have the same right as against
the plaintiff. But even assuming that the de-
fendants were -mirasdats, it did not thence
follow that they were entitled to hold at an
invariable rent. If mirasi ever was extensively
held at a permanently fixed rate, it has long since
generally ceased to be so. There must be fur-
ther proof than the fact that the defendants have
been styled mirasdors to entitle them to fixity
of rent. The lower Court not having arrived at
any finding on the material issuu In the case, it
was remanded for trial on the point whether the
defendants or their ancestors were entitled to
hold the land in dispute under the Satara Go-
vernment previously to the grant thereof in inam
64
( 98S )
to the plaintiff's father in perpetuity at an invari-
able rent, the burden of proving such issue being
laid on the defendant.
Held, also, that the question whether the land
could bear the rent which the plaintiff had de-
manded was immaterial. If the defendants
were entitled to hold at an invariable rent, the
plaintiff had no right to enhance, moderately or ■
immoderately. If, on the other hand, the de-
fendants were not entitled to hold the land at
invariable rent, the plaintiff might, in the
absence of any special contract with the defend-
ants to the contrary, demand such rent as he
pleased ; and if the defendants were mirasdars,
they would be entitled to hold the land at such
the plaintiff thought fit to demand, or, if
they thought his demand too high, to surrender
the land to him. Vishnubhat v. Babaji.
WestreffX-l-aaaPinhty,} I. L. Bop. 3
Bom. 340, n.
See Parsotam Kbshavdasv. Kai.yan
Ravji I. L. Bop. 8 Bom. 348.
Under Enhancement of Bont. 5.
8. Raxinama — Extinction of Miras
Rights-'] Haibati was mirasdar of a piece of
land. After his death his son Bkagu, in 1867,
passed a ratinama to the Mamlatdar in favour
of Luishman, resigning the miras land without
any reservation or qualification, and at the
time put Luishman in possession of the
land resigned and comprised in the ratinama.
Haioatfs right in the land was sold in
December 1869, at an auction sale at which the
plaintiff Tatachand was the purchaser. In a
suit by Tarachand againt Luishman to recover
possession of the land with mesne profits : — Held,
that the transfer to Luishman was complete and
that the rights of Bhag u were wholly extinguish-
ed, and that the plaintiff, a purchaser of Haiba.
subsequent to such transfer to the de-
fendant, was not entitled to recover possession
of the land. Tarachand Hibchanoo. Luhsh-
BKAVANI. H'sitand Nanabkai Harridas, J J.
L I* Bop. 1 Bom. 61, 1870.
4. Raxinama — Right to eject."] A
mirasdar who has given in a ratinama has a
ver his miras land, and eject a te-
nant put in possession thereof by the Collector,
he sues within the period of limitation, unless
that document it is expressly stipulated that
he has abandoned his miras rights. Joti Bhimrav
Balubin Bapiiji. Warden and Cibbs, JJ ...X.
L. Bop. 1 Bom. 306, 1808.
Digitized byGOO^Ie
DIGEST OF CASES.
{ 98* )
B. Mortage of Mirasi Lands — Razina
D-, widow of a Hindu mireudar, by a duly regis-
tered deed, dated 24th November 1 869, mortgag-
ed the mirasi lands of her late husband to the
plaintiff for Rs. 150. Subsequently, on the 5th
July 1872, D. executed a nuiiuM of the land
in favour of R. C.
Held, that the mortgage by D. bound hei
estate in the land as a Hindu widow, and that,
whether the property be regarded as mirasi at
as that of an ordinary occupant, it was trans-
ferable, under { 36, Bombay Act I. of 1S65, and
when she had executed the duly registered
mortgage of 1869 there was nought left in her
to relinquish, or otherwise deal with, than the
equity of redemption. In Tarackand v. Luksfi-
man (I, L. Rep. 1 Bom. 91) there was no
mortgage or other specific lien on the land
created by the mirasdar, or his predecessors in
title, previous to his execution of the ratinama
in favour of the new occupant. Ramchandra
Mankeskwar v. Bhimrav Ravjl. Westropf,
C.J., and Melvill, J... L L. Rep. 1 Bom. 577,
1877.
MIRABDAR— Rights of.
See Bight* of Mirasdar.
Fakir Muhammad e. Tirumala
Ckariar...L IhBep. lHad.
80S.
UTRASI BIGHTS 07 DANCING GIRL.
Sec Dancing Girl. 1.
Kaualau v. Sadaqopa Saw...
I. L. Bop. 1 Had. 350.
MIRASI TENANTS— Enhancement of Rent
of— by Inamdar,
See Inamdar. 1.
Prataprai Gujar «. Bavaji Na-
maji I. L. Bop, 8 Bom,
141.
See Mir as, 2, supra.
MI8APPBECIATI0N OF EVIDENCE—
Material Error—Act X. of 1873, § 297.
See Criminal Procedure Code, Act
X. of 1672, i 297. 1. 8. 4. 8.
In Ike mailer of Hardeo...L L.
Bop. 1 All. 138.
In the mailer o/Aurokiam-.-L L.
Bep . 3 Mad. 38.
Empress v. Donnelly I. L.
Bep, 80*1.406.
Empress v. Murli.,.L L. Bep. 8
HISOABBIAGE OF ABHITBATOBS.
See Arbitration. 7.
Ckowdhri Murtaza Hossein «.
Musst. Biet Bechekunissa...
L. Bep. 3 I A. 2O0.
MISCELLANEOUS PROCEEDINGS.
See Stay of Execution. 1.
Harshankar Parshad .1. L.
Bep. 1 All. 178.
See Civil Procedure Code, Act
Tin. of 1869, §6.1.
Gva Parshad v. Bhuf Singh... I.
L. Bep. 1 AH. ISO.
See Criminal Trespass. 4.
Empress v. Budh Singh... L L. >
Rep. 8 All. 101.
Sec Land held by- Joint Owners.
Empress ». Rajcoomar Singh...
I. L. Rep. 3 Cal. 678.
MISDESCRIPTION OF GOODS.
See Railway Company. 8.
IshwakdaSS v. The G. I- P. Ry.
C0...I. L. Bep.3Bom.iaO.
mSDESCBIFTION OF PROPERTY AS
L AKHIBAJ BY JU1) UKHNT CRE-
DITOR IN APPLICATION FOB
EXECUTION — Relieves Subsequent
Mortgagee Decree-holder of Necessity of
giving Notice of his Proceedings in Eie-
Sce Lis Pendens. 1.
I.ala Kali Pros ad «. Buli Singh.
I. L. Rep. 4 Cat 788.
See Small Cause Court— Kofuasfl.
4.
Nanku t>- Board of Revenue. ..I.
L. Bep. 1 AIL 444.
— Of Causes of Action.
See Misjoinder of Causes of Action.
— Of Drawer and Acceptor of Hu ndi residing
Within Jurisdiction of different Courts.
See Procedure— Civil. 1.
Basant Ram r. Kolahal.-I. L.
Rep. 1 All. 383.
Digitized by G00gle
(
)
DIGEST OF CASES.
( 9M )
xnuontDBB OV CAUSES of ac-
TION— Specific Performance—Act I. of 1877,
i 37, CI. (4).] The plaintiffs sued to enforce an
agreement for the execution of a conveyance of
certajn immoveable property, and for the pos-
session of such property, making the party to
such agreement, and the persons who had, sub-
sequently to the date thereof, purchased the
property at an execution sale, defendants in the
■ suit, on the allegation that such persons had
purchased in bad faith and with notice of the
agreement : —
Held, that, with reference to f 27 of the Spe-
cific Relief Act 1. of 1877, under the circum-
stances, there was not necessarily a misjoinder
of causes of action. Guhani o. Ram Charan.
Sfianiic and OldfieU, JJ...1 L. Hep. 1 All,
655, 1878.
3. Act X. of 1877, SS *8, 31, 45— Alter-
native Relief.'] In a suit instituted against six
parties, the plaintiff prayed for khos possession
of a four-anna share in a certain lot, or, in the
alternative, for a decree for arrears of rent
against the defendants, or such of them as should
on inquiry appear to be respectively liable. It
appeared that the plaintiff had been kept out of
possession by one only of the six defendants,
and that, if he was entitled to a decree for arrears
of rent, another of the defendants was liable to
a portion only of such arrears : —
Held, that the suit was not improperly framed ;
that there was no objection to the prayer for
alternative relief ; and that (he suit should not
have been dismissed for misjoinder. Janoki-
NATH MOOKERJHE 0. RaHRUNJUN CHUCKER-
BUTTV. Birch and Miller, JJ I. Ii. Bep. 4
Cal. 948, 1879.
MISBEPBESENTATION — Composition
Deed— Release— Act IX. of 187a, H 13,
>8, 19 — Cancelling Signature.
See Cancellation of Signature.
The Oriental Bank Corpora.
tion v. John Fleming. ..I. L.
Hap. 3 Bom. 343.
MISSING PERBOH— -Presumption of Death
of— Opening up of Inheritance — Hindu
and Mahomedan Law.
See Evidence. 31.
Pakheshar Rai ». BlSHBSHAK
SWQK...I. L. Bep. 1 AIL
S3.
MISSTATEMENT IN PETITION- FOB
SPECIAL LEAVE TO APPEAL.
See Bengal Beg. VHX of 1818, § 8,
CL9.
Rah Sabuk Boss v. Monuohini
DossEB...L.Bep 3 I. A. 71.
MISTAKE— Money paid by— in Excess in
Execution of Decree.
&cAetXZHL of 1861, §11.9.
Agra Savings Bank v. Sri Rah
MiTTER...L L.Bep. 1 AIL
888.
1. Contract— Mulgeni— Enhancement
Of Rent.] The plaintiff was a Mulgar or rayat
under Government, and paid on his land an an-
nual assessment of Rs. 56-8-0 until 1872, when
North Kanara was surveyed, when his assess-
ment was raised to Rs. 129-8-0, and he was also
made liable to a local fund cess of Rs. 4-9-0.
His ancestor had sublet the land in 184.7 to the
defendant at a fixed annual rental of Rs. 150
on a lease known as a Mulgeni Habulayat. The
plaintiff sued to recover from the defendant the
enhanced assessment and cess.
Held, that the plaintiff was not entitled to
recover, inasmuch as the lease made no pro-
vision for an increased rent under any circum-
stances, but, on the contrary, expressly provid-
ed against any increase. If the assessment
had been lessened instead of augmented, the
tenant could not have claimed any diminution
of his rent ; nor, on the other hand, could
he be subject to an increase because of the
greater burden now imposed on the landlord;
and this was so, although both parties, when
they entered into the agreement, supposed
that the Government assessment would remain
unaltered. The influence of error is to be ad.
mitted in such cases only where it was of such
a kind, that it must be supposed to have made
the contracting parties will quite different from
the immediate result attained. It is not enough
that there was an error as to some point, even
though a material point, an error as to which
does not affect the substance of the whole con-
sideration. A mistake as to existing facts may
make a contract void, when an erroneous ex-
pectation, which events entirely falsify, has no
influence at all. Babshetti ev Venkata-
rahana. Wttt and Pinkey, JJ...1, L. Bep. 8
Bom. 164, 187S.
S. C. under Small Cause Court—
HofuadLS.
Digitized byGOO^Ie
DIGEST OF CASES.
( ;
>
MISTAKE OF FACT— Money paid under
See Contract. 11,
S hug an Chand v. Government
or N. W. Provinces. ..L 1>,
liar. 1 AIL 78.
MISTAKE OF LAW AND FACT.
See Contract. 6.
Seth Gokuldass «. Mubu...L.
Rep. 8 1. A. 78 ; I. L. Rep.
s Cai. eoa.
HITAKBHARA— Authority of.
See Hindu Law — Authority of
Writers. S. 4. S.
Sakharam«.Sitarai...L L.Sep,
8 Bom. 303.
Lallubhai i. Mancoovsrbai ...L
L. K«p. 2 Bom. 888.
MORAKJl GOKALDAS n. PARVAT1.
bai I. L. Rep. 1 Bom.
177.
MITIGATION OF PENALTY-Of For.
felted Recognizance Bond.
Sm Reoogniaaace. 1.
Empress e, Nurul Hugo..,I. L.
Kep.SCal.7B7.
MOCABBA VILLAGES.
See Limitation. SO.
Rajah Ski Chutanya v. The
Collector or Ganjam...L.
Bop. 1 1. A. 338
MODE IN WHICH A MAGISTRATE
SHOULD SHOW CAUSE AGAINST A
RULE — When a Magistrate wishes to show
cause against a rule issued by the High Court,
the proper course for him to adopt is to apply
to the Legal Remembrancer, to cause an appear-
aace to be made for him in Court, and not to
address the Registrar by letter. In the matter
oj the Petition vf Hukho Soondbry Chowde-
rain I. L. Rep. 4 OaL 19.
MODIFICATION OF CLAIM TO A DI-
RECT SETTLEMENT TO ONE
FOR BUB-SKTTLEMBHT.
. se. Act i. of iae». a. 4.
Widow of Shunker Sahai *.
Rajah Kashi Pershad...L,
Rap. 4 I. A. 188, n.
MODIFICATION OF CLAIM TO A DI-
RECT SETTLEMENT TO ONE
FORA aUB-SETTLBMENT-fonirf.
Gauri Shunker e. Maharajah
op BuLRAMPOfti...L. Rep 9
I. A. 1 ; L L. Rap. 4
OaLSSBl
M0FU8SIL COURTS— Law administered
by.
See Champerty. 1.
Chebambaka Chetti «. Rbhga
Krishna L. Rap, 1LA.
841.
MOHUNT— Certificate to collect debts due to
Private Estate of— Right of Chela in pre-
ference to Guru Bkai.
Set Certificate to collect Debt*. 4.
DuKHARAU BHARTI V. LuCHMUH
Bharti...L L. Rep. 4 CaJ.
804.
— Sight of Appointment of— Custom— Onus
Probandi.] The constitution and rules of reli-
gions brotherhoods attached to Hindu temples
are by no means uniform in their character, and
the important principle to be observed by the
Courts is to ascertain, if that be possible, the
special laws and usages governing the particular
community whose affairs become the subject of
litigation, and to be guided by them. The only
law as to Mohunts and their office, functions,
and duties is to be found in customs and prac-
tice, which are to be proved by custom.
A zemindar claiming a customary right of
confirmation of the election of a Mohunt must
prove the custom.
A karurnamah taken in troubled times from
the guardian of an infant Mohunt, acknowledg-
ing the right of the aemindar to control and
remove the Mohunt, is of little, if any, weight,
as evidence of the custom. The superintending
authority over, and the right to visit religious
endowments, and prevent and redress abuses in
their management, exercised by the old rulers
of the country, passed to the British Govern-
ment, and was exercised by it before Regulation
VII. of 1817 of the Madras Presidency, which
merely defined the manner in which that power
was thenceforth to be exorcised. Rajah M dttu
Rauauhoa SnvrATi v. Peeianataovm Pii.lai.
L. Hop. II. A. 800, 1874.
S. C. under Report* of Collector.
by Google
{
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DIGEST OF CASES.
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VOXUBBABBE TEWUBES— Presump-
tion in favour of.
See Enhancement of Rent .p.
PlIRMANUND ». ROOKWBB.,.1. It.
Rep. 4 Cal. 798.
XOKUBBABEE ISTAMRAREE TE-
NURE- Escheat of.
See Escheat. 1.
Ranbk Somwbt Kohwak *. Mir-
za hlhmut bahadoor...l.
Sep. S I. A. 9fl ; L L. Bep.
1 Cal. SQL
MONEY DECREE— Attachment and Sale of
• —in Execution.
Set Civil Procedure Code, Act X.
of 1877, (878.
Sui.TAN KUAUV. GULEARI LaL...
I. L. Bep. 9 AIL 880.
See Limitation. 80.
Bmawahi Kubr «. Rutin Ram...
LL.Bep.8AU.SS4.
MONEY DECBEB OK MORTGAGE
BOHD— Sale In Execution of Simple-
obtained ou Mortgage.
See Bala in Execution of Decree.
4.8.
Khub Chahd e. Kalian Das...
L L. Bep. 1 AIL 840.
BaLWANT SlNOH «. GOKARAH PBA-
sad Ibid. 488.
See Mortgage. 40.
Gahpat Rai *> Sarupi L L.
Bep. 1 AIL 446.
HONEY DBOBEE ON SPECIALLY BE-
OISTEBED MORTGAGE BOND—
Subsequent Suit to enforce Mortgage
Set Bee Judicata. 88.
Dow Monbt *. J0HMBNJ0Y...I, L.
Bep. 8 OaL 80S.
MONEY DECBEB UNCONNECTED
WITH MORTGAGE, OBTAINED
BY MORTGAGEE— Sale in Execution
of — Notice of Mortgage.
See Mortgage. 3,
TUKAKAM V. RAWCHANDRA...L L.
Bep. 1 Bern. 814.
Stt BheriiPi Sale. 8.
Bhuooobuttv *. Ska ma Chui
I. L. Bep. 1 OaL 788.
MONEY AND JEWELS DEPOSITED
IN OOUBT IN LIEU OP SECU-
RITY TO STAY EXECUTION OP
A DECBEB— Applicatio B to recover—
Limitation.
Set Execution of Decree. 4 .
Shko Gholam Sahoo v. Rahut
H ossein... I. L. Bep. 4 OaL
8.
MONEY| OBTAINED BY OOLLUBION
AND FRAUD— Limitation to Suit to
See Limitation. 00,
Raohuhon! Audhikari •. Nil-
moni Simon DBO...L L.lRep.
8 OaL 883.
MONEY! PAID 0T/T.[0Fj00URT-Suit
See Adjustment of Decree. 1.
KuNHI MoiDIN KUTTI V. RaMBN
Urnn L L. Rep. 1 Mad.
808.
MONEY PAID UNDER A DECREE
SUBSEQUENTLY SUPERSEDED— Suit
to recover.'} In a suit by the present defendant
against the present plaintiff for enhancement of
rent, the Courts of first instance and the High
Court made a decree for enhanced rent. The
Privy Council, in 1I73, reversed those decrees
and held that the rent could not be enhanced.
Before the date of the Privy Council judgment
the present defendant obtained several other
decrees for enhanced rent against the present
plaintiff. No application was made by him for
a review of those judgments, but in 1875 he
brought this suit to recover the difference be*
tween the amount of the enhanced rent recovered
and the fixed rent which he was bound to
pay:—
Htld by AintlU, Macpkerstm, and MariSy, ]].,
following Shama Purskad Roy Chamdhry v. Hurra
Punhad Roy Oumdhry (to Moo. 1. A. 903 ; S.
C. 3 W. Rep. P. C 11), that the original decree
for enhanced rent, which was the sole basis of
all the decrees made pending the appeal, having
been reversed by the Privy Council) alt subse-
quent decrees which wen mere mbordinate and
dependent decrees were superseded by the Privy
Council's decision, and that the plaintiff was
entitled to recover.
Per Garth, C.J., and Jmchen, J.— That the
decree made by the Privy Council did not super-
D.grt^dbyGOOgle
( »1 >
DIGEST OF CASES.
( 892 >
MONET PAID UNDER A DECREE
SUBSEQUENTLY SUPERSED-
Mn rmUit
ssde or modify the several decrees obtained by
the defendant for enhanced rent, and that the
plaintiff was not entitled to recover, the princi-
ple of Marriott v. Hampton (2 Smith's I_ C. 375,
6th Ed.) applying. Shama Purshad"s case ubi
supra, distinguished. Jogesh Ckunder Durr
v. Kalli Churn Durr... I. L. Rep. 8 Cal. SO
1 Cal. Rep. 8, 1877, 7. B.
See Act XXTXL of 1801, § 11. 2.
Agra Savings Bank v. Sri Rai
MITTEB...I. L. Sep. 1 AIL
888.
MONEY PAID UNDER MISTAKE OP
PACT.
See Contract . II.
Shugan Chand v. Government
ok N. W. Provinces...!. L.
Rep. 1 AIL 78.
MONEY PAID UNDER TAX ILLE-
GALLY LEVIED— Suit to recover.
See Madras Act DX of 1871.
Lehan v. Dahodarava L L.
Rep. 1 Mad. IBS.
HONEY PAID DURING WRONGFUL
POSSESSION- For Government Reve-
oue— Right to recover— Set-off.
Sec Right to recover Government
Revenue paid daring
Wrongful Possession.
TlLUCK CHAND v. SoUDAMINI Da-
S1...Z. L. Rep. 4CaL 6B0.
MONEY UNDULY REALIZED IN
EXECUTION OP DECREE — Re-
coverable by Application in Execution
without Separate Suit.
See Execution of Decree. 6.
Partab Singh v. Beni Rah. ..I.
L. Rep. 2 All. 61.
MOOKTEAR — Application by— on behalf of
Judgment Creditors — Act VIII. of 1859,
$207.
Sm Execution of Decree. 2.
Antoo M issues «. BmHooMoo-
kheb Dabeb...L I.. Rep. 4
Cal. 605.
iwledgment of Mortga-
MORTGAGE — Ackac
jots' Title.
Ste Acknowledgment of Mortga-
gor*' Title.
—— by Administrator of a Minor's property
without previous Sanction of Court —
Purchaser with Notice.
Ste Mortgage. 29. 80.
— - Adverse possession by Mortgage.
See Mortgage. 37.
of Ancestral Property.
See the Index heading Alienation of
Ancestral Properly. *
— Apportionment of.
See Apportionment of Mortgage
Debt,
Hianr Narrain «. Sted Alla.
ooluh...L L. Rep. 4 OsX
72.
Assignment of — Registration.
See Assignment of Mortgage.
Ganpat Pandurang v. Adarji
Dadabhai X. L. Rep. S
Bom. 812.
— — Assignment of — Registration.
See Registration. 7.
Satri v. V1SRAH..X L. Rep. 2
Bom. 97.
Conditional Sale — Foreclosure of — Effect
of.
See Hindu Law— Ancestral Pro-
perty.
Sham Naraih Singh v. Ruohoo-
burdyal I. ZbRep. 8
OaL BOB.
- By Conditional Sale — Redemption.
Bee Mortgage. IS.
- Covenant not to alienate.
Sm Sale in Execution of Decree. 4.
KhubChahd e. Kauan Dass...
I. I„ Rep. 1 All. 040.
And see Mortgage. 18. 10. 20. S3.
- Dam-dupat — Application of Rule of — to.
See Assignment of Mortgage.
Ganpat v. Adarji ...L L. Rep. 8
D.gmzed by G00gle
(
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DIGEST OF CASES.
( 994 )
MORTQAGE-con«.
See Hindu Law— Interest. 3.
See Mortgage. 8.
See Interest. 4.
Dben DovALti. KvlasChunder...
Z. L. Sep. 1 Cal. 82.
By Deposit of Title Deeds.
See Equitable Mortgage. 1.
Dayal Jajrai 0. Jivraj Ratansi.
I. L. Bep. 1 Bom. 287.
Emblements.
See Emblements.
Land Mortgage Bank *. Vishnu.
X. L. Bep. 2 Bom. 670.
Equitable.
See Equitable Mortgage.
See Principal and Surety. 4.
Pooose v. Bank or Bengal. I. L.
Bep. 3 Cal. 174.
Of Family Ancestral House.
See Hindu Law — Alienation of
Ancestral Property. 1.
Bikhan Daso. Puka...I. Ii.Bep.
2 All. 141.
— By Father during Son's Minority— Suit to
enforce Mortgage— Onus Preiandi.
See Onus Proband!. 7.
Bheeknarain Singh «. Jannltk
Singh J. L. Bep. 3 Cal.
438.
Foreclosure — of First of two Mortgages of
same Property to same Mortgagee —
See Mortgage. 10.
— Foreclosure— Limitation to Suit for.
5k Assignment of Mortgage.
Ganpat v. Adarji...L I>. Bep. 8
Bom. 812.
See Limitation. 17.
Rauchandra -b. Juggutmonmoht-
NBV...I. L. Bep. 4 Cal. 283.
■ Foreclosure — by One of Several Joint
Mortgagees.
See Mortgage. 17.
— ■■ Foreclosure — Re-opening,
Set Mortgage. 10,
MOBTOAGB— *«.<<*.
Foreclosure — Right of Subsequent Mort-
gagee to Notice of.
See Bang. Beg. XVII. of I860, f 8.
1.
Dikgaj Singh v. Debi Singh. .. I,
L. Rep. 1 All. 499.
Foreclosure — Service of Notice of — Proof
—Judge's Office Ministerial — Admission
of Service by some of several Mortgagors.
See Mortgage. 13.
— — Foreclosure — Service of Mortgagee's Ap-
plication for — with Judge's Pervanna,
Imperative.
See Mortgage. 14.
Form of Decree.
See Hindu Law — Undivided Fa-
mily. 7.
Luchui Dai Koori n. Asuan
Singh I. L. Bep. a Cal.
213.
• By Hindu Widow.
SeeXixM. 5.
Rauchandra s. Bhihrav. I. L.
Bep. 1 Bom. S77.
— By Holder of Certificate to Collect Debts.
See Power of Grantee of Certifi-
cate to Collect Debts to
Mortgage.
— Of Indigo Factory— Liability of Mortgagee.
See Indigo Factories. 1,
Monohur Doss* McNaghten...
L L. Bep. 8 Cal. 231.
— Interest— Application of Rule of Dam-
dupat.
See Assignment of Mortgage.
Ganpat v. Adarji.,.1 L, Bep. 8
Bom. 812.
See Hindu Law — Interest. 3. and
Mortgage. 3.
See Interest. 4.
Dssn Doyal r. KvlasChunder...
I. L.Bep. lOaLOa.
— Interest after Due Date of — Bond contain.
ing Agreement for Interest up to Due
Date— Discretion to award.
Diarized by Google
{ 905 )
DIGEST OF CASES.
(
MORTGAGE -eontd.
See Irttflreet. 1. 8.
DecN DflVSLi. HBT NARAIN...I.
Xi. Rep. S Cal. 41.
Baldeo ». Gokal X. L. Bop. 1
Aaaos.
- — Kattam and Dili.
Sec Kanam Mortgage.
Kbshava o, Kbshava I. Ill
Rep. 3 Mad. 48.
-^— Of Lands in different Districts — Suit to
See Jurisdiction. 4.
GlRDHARBB*-. S MORA I I. Ii.
Rop. 1.A1L 481.
— Of Lands partly in Oudh and partly in the
N. W. P.— Foreclosure — Jurisdiction,
See Mortgage. 34.
— Merger of.
See Mortgage. 10. 38.
See Merger.
GOLUKNATH MlSSEK e, LALLA
Prumlal...!. L. Rep. 8 CaL
807.
— Of Minor's Property.
See Mortgage, 39. 80.
See the Cases under Alienation by-
Guardian.
St* Bale by Guardian and Mano-
medan Law— Sale by Guar-
dian.
— Of Miras Lands.
See Miras. 8.
And see Mortgage. 3.
Money Decree Obtained on— does not
destroy Mortgage Lien.
See Mortgage. 39.
■ Money Decree Obtained on — Sale— Right
of Purchaser. ,
See Bale in Execution of Decree, 4.
9,
KhubChand v. Caluan Das...
I. L. Rep. 1 AIL 340.
Balwakt Singh v. Gokaran Pra-
sad Ibid. 438.
See Mortgage. 40,
MORTGAGE ™w.
- Money Decree unconnected with Mortgage,
obtained by Mortgagor — Sale in Execu-
tion—Notice.
See Mortgage. 8.
See Sheriffs Bale. 8,
Bhuggobottyv. Shama Churn...
L L. Rep. 1 CaL 387.
- Money Decree Obtained on Specially Re-
gistered— Subsequent Suit to enforce
Mortgaged Lien.
See Res Judicata. 39.
DOSS MoNEE t.JONHENJOV...I. L,
Rep. 8 Oal. 863.
- Notice of — on Sale in Execution of Money
Decree obtained by Mortgagee.
See Mortgage. 3.
See Sheriff a Sale. &
Bhugcobutty o. Shaw a Churn...
T. L. Rep. 1 Cal. 337.
- Parties to Suit on.
See Mortgage. 3,
St* Fsrtiea to Suit. 1. S.
- " Pemartkum."
See Mortgage. 31.
- with Power of Sale.
See Mortgage. 81. 33. 33.
- with Power of Sale — Power of Executors to
See Executors— Power of. 1.
Seals v. Brown X. L. Rep. 1
All. 710.
See Constructive Fraud.
Salahat Alt w. Budii Singh...
I. L. Rep. 1 All. 308.
- Priority between Mortgagee in Possession
Under Registered Mortgage and under
Purchase at Sale in Execution of Money
Decree obtained by Prior Unregistered
Mortgagee — and Prior Unregistered
Mortgage for Rs. 50 without Possession.
See Mortgage. 6.
- Priority between Purchaser at Sale in Exe-
cution of Decree on Mortgage, and
Purchaser from Prior Grantee of Mort-
gagor, of Subsequent Mortgagee
See Mortgage. 0. 36.
DiQrtized by G00gle
DIGEST OF CASES.
MORTGAGE-™*;,*.
Priority between Registered Mortgage
(under Act XX. of 1866), and Deed
which might have been but was
registered under Act XIX. of 1843.
See Registration. 32.
Khahdu a. Tarachand I. L.
Sep. 1 Bom. S74.
Priority of Registered Mortgage over Sub-
sequent Sale with Possession.
See Registration, 3.
ShRINOAPURE V- PETK8...X. L.
Bop. 8 Bom. 268,
■ Priority between Registered and Unregis-
tered Mortgages of which Registration is
Optional.
See Registration, 80.
Ahmad Baksm h. Gobindi.. X L,
Bop. 8. All. 216.
- Priority between Registered Mortgage of
which Registration Compulsory, undei
Act VIII. of 1871, and Unregistered Deed
of which Registration Optional, under
Act III. of 1877 or otherwise.
See Registration. 85. 26.
Bholanath v. Baldeo I. Ih
Bep. 2 AIL 198.
Oghra Singh n. Ablakk Koohr.
I. L.Kep.4 0aI.336.
Of Property Not in esse— Stamp.
See Mortgage. 88.
Of Proprietary Rights in a Mahal
See Act XVUI. Of 1878, § 7. 2.
Bhagwan Singh v. Murli Singh.
I. L. Rep. 1 All. 409.
Of Proprietary Rights in a Mahal followed
by Sale— Right of Mortgagor to hold Sir
See Act XVIII. of 1B73, § 7. 1.
Bakhat Ram t. Wazir AU...X,
L. Bep. 1 All. 448.
Redemption— Acknowledgment ol Mortga-
gor's Title Made before Act XIV. ol 1859.
See Acknowledgment of Mortga-
gor's Title. 8,
Daia Chand r. Sarfaraz Atl...
I. L. Rep, 1 All. 486.
MORTGAGE-™,;,*.
Redemption — Acknowledgment of Mortga-
gor's Title Signed by Mortgagee's Agent.
See Acknowledgment of Mortga-
gor's Title. 8.
Rahumani Bibi v. Holasa Kuar.
I. L. Bep. 1 AIL 648.
Redemption — Acknowledgment of Mortga-
gee's Title — Signature by Mortgagees, as
such, of Record of Rights and Khatauni
SMara Asamiwar.
See Acknowledgment of Mortga-
gor's Title, 1.
Daia Chand b. Sarfaraz..,I, L.
Bep. 1 AU. 117.
Redemption — Adverse — Possession — Li-
See Mortgage. 37.
Redemption— Conditional Decree.
See Mortgage. 33. 36.
Redemption of Mortgage in Oudh.
See Act I. Of 1869. 1.
Rajah Kishen Pandav v. Nar.
rendar Singh. ..L. Bep. 3
LA. as,
Redemption of— by One of Several Mort-
gagors— Right to Contribution.
See Contribution. 1.
Hika Chund*. Abdal I. L.
Bep. 1 All. 466.
Redemption, Suit for— Onus Probandi.
See Onus Probandi. 6.
Ratan Kuaro. Jivan SlNGH.-.I.
L. Bep. 1 All. 194.
Redemption Suit— Set-off of costs.
See Mortgage. 38.
BRIJNATU DaSS 3. JuGGERNATH
Dass .1 L. Bep. 4 Cat.
748.
Re-Entry by Mortgagor — on Satisfaction
bf Prior Mortgagee who had ousted Se-
cond Mortgagee.
Sir Dispossession of Second by
First Mortgagee.
Narain Singh o. Shimbhoo
Singh. ..L. Bep. 4 I. A. 16.
Digitized byGOO^Ie
DIGEST OF CASES.
{ 1000 )
MORTGAGE— contd.
Registered — entitled to Priority o
r Sub-
sequent Registered Sale with Possession.
See Registration. 3.
And see Mortgage. 1.
Beg istered— under Act XX. of 1866 not
entitled to Priority over Deed which
might have been but was not registered
under Act XIX. of 1843.
See Mortgage. 20.
See Registration. 32.
Khandu v. Tahackand. I. II.
Rep. 1 Bom. S74.
' Registered and Unregistered — of which
Registration Optional — Priority,
See Registration. HO.
Ahmad Baksh e. Gobindi...I. L.
Bep. 3 All. 216.
Registered — of which Registration Com-
pulsory— Priority between — and Unre-
gistered Deed of which Registration Op.
Sec Registration , 26. 26.
Bholanath v. Baldev.,.1. L.
Rep. 2 All. 108.
Oohsa Singh v. Ablakh Kuar.
L It. Bep. 4 Cal. 036.
Registration of.
See the Index heading Registration.
■ Sale convertible into.
Sec Sale convertible into Mort-
gage. 1. 2.
StlBHABHAT V. VA3UDEVBHAT...I.
L. Rep. 2 Bom. 113-
Bapu 0. Sen vara va... Ibid.
231.
Specially Registered — Decree on.
See Sale in Execution of Decree, 6.
AkheRam v. Nand Kishore...!.
L. Kep. 1 All. 236.
Specially Registered Mortgage Bond-
Decree on— Subsequent Suit to enforce
Lien against Mortgaged Property.
See Res Judicata. 22.
Doss Money v. Jonuikjov.,.!,
L. Rep. 3 Cal. 363.
MORTGAGE -contd.
Specific Performance of Agreement to
lend Money on.
See Specific Performance. 9.
Anakavan Kashi v. Saidaua-
OATU AVULLA...I. L. M*p,
2 Mad. 79.
Of Undivided Share by Member of Undi-
vided Mitakshara Family—Right of Sur-
vivors to recover, on Mortgagor's Death.
See Hindu Law— Alienation of An-
central Property. 8.
Musst. Phoolbas Kuhwub t.
I.ALLA JOGESHUR SAHOV...L.
Rep. 3 1. A. 7; I. L
Rep. 1 Cal. 226.
Of Unrecognized Portion of a Bhag in a
Bhagdari Village.
Bee Bombay Act V. of 1862, §§ 1
and 3.
Ranchodas c Rakchodis ...1
L. Bep. 1 Bom. 681.
Usufructuary.
See Mortgage. 12, 27, 28, 36, 41.
Usufructary — Redemption — Decree for—
though Mortgagor's Allegation that Mort-
gage satisfied not proved.
See Mortgage. 36.
■ 1. Registration — PtotetstoM,'] A regis.
tered mortgage without possession is entitled to
priority over a subsequent registered sale accom-
panied by possession.
By a duly registered deed of mortgage, D. in
1S64 mortgaged land to the plaintiff. The mort-
gage deed provided for the sale of the lands in
the event of failure to repay the sum advanced.
On default made, plaintiff brought a suit to
enforce this provision, Pending the suit, D. sold
the lands to the defendant, who registered bis
deed of sale and obtained possession. The
plaintiff subsequently obtained a decree, and in
execution became the purchaser himself. He
then sued the defendant to recover possession.
Held, that he was entitled to recover. His
rights as mortgagee were made as effectual by
registration, as by possession, so as to prevent
their being impaired by subsequent transactions,
and those rights included the right to bring the
bole of the property, as it subsisted at the time
of mortgage, to sale- It was so brought to sale
and the purchaser in execution acquired a tight
by Google
( 1001 )
DIGEST OF CASES.
( loot )
MORTGAGE— contd.
free from any created subsequently to the r
gage and subject to it. 5. B, Shrinoapurb
B. Pbths. West and Pinhey, JJ...L L. Rep. S
Bom. 682, 1878.
9. Suit to enforce-—Parties.~] It is not
incumbent on a registered mortgagee, seeking
to enforce his lien, to search for subsequent
incumbrancers or purchasers, in order to make
them parties to the suit. . In the absence of no-
tice, he would properly proceed against the person
prima fade liable to him, and the mere registra-
tion of a subsequent sale or mortgage would not
amount to notice. S. B, Shringapure e. S. B.
Pkthe. West and Pinky, JJ....L L. Rep. 3
Bom. 062, 1878.
S. C. under Parties to Suit. B.
S. 0/ Mirasi £a*<i by a Hindu Widax-
Razinatna — Interest^ D., the widow of a Hindu
Mirasdar, by a duly registered deed dated 24th
November 1869, mortgaged the Mirasi land oE
her deceased husband to R. M. for Rs. 1 50.
Subsequently she executed, on the 5th July 1872,
a ratinama relinquishing the land in favour of
R.G.
Held, that the mortgage bound D.'s estate in
the Mirasi land as a Hindu widow ; that whether
the property was regarded as Mirasi or as that
of an ordinary occupant, it was transferable
under { 36 of Bombay Act I. of 1865 ; that when
D. executed the ratinama there was nothing
left in her to relinquish, or otherwise deal with
more than the equity of redemption ; and that,
therefore, R. C- took nothing by the ratinama
except this equity of redemption. The dis-
tinction between this case and that of a. purchase
at a sale for arrears of land revenue is th:
such last- mentioned sale the purchaser takes
the land discharged of all incumbrances, i
much as the Government land revenue
paramount charge on the land-
Interest allowed not exceeding the principal
following the rule at Dam.dupat. Ramchandra
Mankeshvaro. Bhihrav Ravji. Westropp, C.J.,
and Sfehill, J...I. L.Rep. 1 Bom. 577, 1877.
S. C. under Hindu Law— Interest.
4. SaU—Estofi/*!.'] The three s
members of an undivided Hindu family — the
remaining member of which had absconded'
executed to the plaintiff in November 1870 a
mortgage, duly registered, and setting forth
MORTGAGE— contd.
ground of necessity, of a piece of land which
formed part of the family estate- Certain judg-
ment creditors of the absent member subse-
quently attached and sold his share in the said
land under their decree. The plaintiffs un-
divided sou bought it, and in 1872 resold his
right, title, and interest therein to the defendant's
father, without disclosing the .existence of the
mortgage. In 1874 the plaintiff obtained a
decree on his mortgage, and attached the land,
but the attachment was removed on the ap-
plication of the defendant's father.
In a suit by the plaintiff to establish his right
to the whole of the land included in his mort-
gage :—
Held, that the mortgage being, under the
circumstances, valid, the sale of the share of the
absent member was subject to the lien created,
and the purchase of that share by the mort-
e's son, and his sale of it to the respondent's
father, did not disturb the lien. The mortgage
was registered, and the sale deed to the re-
spondent's father set forth the vendor's title. It
was a purchase of a share, and this should have
put the purchaser on inquiry.
The mere want of disclosure by the plaintiff's
undivided son, of his father's mortgage, was not
enough to create an estoppel against the mort-
gagee.
If there bad been any active fraud, or artifice
by which the mortgagee, directly or indirectly,
had prevented the purchaser from his son
making the reasonable inquiry at the Registra-
tion Office, the case might have been different.
R. S. Joshi ■- L. B. Joshi. West and Pinhey,
JJ Lit. Rep. 2 Bom. 660, 1878.
S. — - Possession — Registration — Notice —
Estoppel.'] The plaintiff claimed under a mort-
gage oE 27th November 1S71, for Rs. 50, which
was neither registered nor accompanied by pos-
session.
The defendant claimed under a mortgage
of the 17th March 1873, for Rs. 150, which
was both registered and accompanied by posses-
sion. The defendant, when he took his mort-
gage with possession, had no notice, express or
constructive, of the plaintiff's mortgage.
On the 20th February 1S74, the plaintiff,
having obtained a money decree for Rs. 100,
against the mortgagors in a suit instituted in
1873, but not in respect of the mortgage, caused
the mortgaged property to be attached and sold
Digitized byGOO^Ie ,
DIGEST OF CASES.
( 1004 )
MOKTGAGffi— rant J.
by (he Court, and the defendant became the
purchaser for Rs. 86 on 171I1 September 1874,
and obtained a certificate of sale, which he did
not register, dated 29th October 1874.
No notice of the plaintiff's mortgage was given
at the time of the sale in execution of his money
decree.
In 1874 the plaintiff obtained a decree tor
possession in a suit (to which the defendant was
not a party) brought on the mortgage. The date
of this decree did not appear in evidence. In
endeavouring to enforce that decree, the plain-
tiff was obstructed by the defendant on 15th
January 1875.
Held, that if the date of the decree were sub-
sequent to the sale of the defendant, the decree
was valueless, as neither the title to, nor the
possession of, the land was then vested in the
mortgagors.
Held also, that, whatever may have been the
date of the decree, the plaintiff did not allege
that the defendant had any notice of the plain-
tiff's mortgage when the plaintiff caused the
Court sale to be made on the 17th September
1S74 under his money decree, or that the sale
was made subject to the plaintiff's mortgage i
and that it was incumbent on the pari of a money
judgment creditor, like the plaintiff, who was
causing land to be sold under bis money decree,
to let it be known to persons bidding for the
right, title, and interest of the judgment debtor
in the land, that he, the judgment creditor, held
a mortgage on the same laud; and that thi
duty was especially incumbent on a mortgagee
whose mortgage was neither registered nor
accompanied by possession ; and that the plain-
tiff not having given notice, at or previously to
the sale, to the purchaser, of his, the plaintiffs,
mortgage on the same land, and that the sale
was intended to be subject to such mortgage,
was estopped from setting up and enforcing his
mortgage against the defendant. Tukaram
Atharam v. Rauchundra Budai
tropp, C.J., and N. Harridos, J....I. L. Rep.
1 Bom. 314, 1876.
6. ■ Purchaser of Property mortgaged
from Grantee of Mortgagor— Decree and Sale by
Mortgagee — Auction Purchasei — Priority.'] A
mortgagor cannot by a subsequent grant dero.
gate from the rights of his mortgagee to be paid
his principal, interest, and costs out of the pro-
perty pledged ; and the proper and only mode
MOKTOAOB-^bW.
for the mortgagee to realize his money under
an ordinary Bengalee bond pledging the land, is
get a decree for it and bring the mortgaged
property to sale by process of execution. When
mortgagee puts up mortgaged property for
le in execution of a decree on his mortgage
whether such decree be a decree declaring the
a money decree only, he sells the entire
that he and the mortgagor could jointly
sell, and not merely the right and interest of
the mortgagor as they stood at the time of the
Where, therefore, O., the zemindar of a cer-
tain property, mortgaged it to ft., and subse-
quently gave a patni lease thereof to B., who
conveyed his rights to the plaintiff; and sub-
sequently O. made a gift of her zemindari rights
her son C-, who in 1872 sold the property to
C, who thus became the owner of the zemindari
and patni rights of the property formerly
belonging to 0.\ and on O.'s death //. in 1873
obtained a decree on his mortgage bond, order-
ing the money due to be realized by the sale of
the mortgaged property, which was accordingly
sold and purchased by the plaintiff; and C.
claiming patni rent from the plaintiff, sued and
obtained a decree against him for it, whereupon
the plaintiff filed a suit to have it declared that
he was not liable to pay any future rent, inas-
much as the effect of his purchase in execution
of the decree on the mortgage bond was to give
him a good title to the zemindari as against C.,
the defendant :—
Held, that the plaintiff was entitled to the
decree asked for, as he had purchased the entire
interest which O. and H. could jointly sell, and
not merely the rights and interests of O. as they
stood at the time of the sale. Muthora Nath
Pal v, Chundekhoney Dabia. Markby and
Prinsefi,]} L L. Hep. 4 Cal. 817, 1878.
7. Bham Decree — Innocent Purchaser.')
In 1861 J. mortgaged certain lands to the de.
fendant, who in 1864 sued upon the mortgage,
and obtained a decree for sale. The decree
remained unexecuted by the defendant. In
1869 the lands were sold in execution of a
money decree against J., and the plaintiff
became the purchaser. Thereupon the defend-
ant attached the land in execution of the decree
obtained by him in 1S64. The Court found that
the mortgage of 1861 was not a bimi fide mort-
gage. In a suit for possession, held, that the
plaintiff was entitled. The decree obtained in
Digitized byGOO^Ie
( IMS )
DIGEST OF CASES.
( 1000 )
MORTGAGE— conid.
1864, being based on a colourable mortgage,
gave the defendant no claim as against a subse-
quent bonO. fide purchaser for value. What the
plaintiff purchased a! the execution sale in i860,
was the real interest of J. in the lands in
question, not his interest as diminished by a
fictitious derogation arising out of a sham trans-
action. Gopi Vasadev Bhat v- Markahdb
Nasravan Bhat. West and Pinhey, JJ...I. L.
Rep. 3 Bom. 30, 1378.
8. Contribution.'] if., B„ and N.
held mouza D. in equal one-third shares, and
St. also held a share in mouza .4- On the 3rd
January 1863, St. and B. mortgaged their shares
in mouza D. to L. to secure a loan of certain
moneys. On the 16th March 1870, St., B., and
N. mortgaged mouza D. to R. to secure a loan
of Rs. 600, and on the same day, by a separate
deed, they mortgaged mouza D., and Jt. mort-
gaged his shares in mouza A. to R. to secure a
loan of Rs. 1,600 On the 8th December 1875,
L. obtained a decree for the sale of the shares
of At. and B. in mouza D. for the satisfaction of
the mortgaged debt due to her. On the 18th
April 1876, S. obtained a decree for the reali-
zation of the mortgage debts due to him by the
sale of mouza D. and At.'s share in mou;
On the 23rd October 1876, the shares of M. and
B. in mouza D. were sold in execution of L.
decree, and were purchased by R. A portion 1
the purchase- money was applied to satisfy L.
decree, and the balance of it was deposited i
Court. Instead of applying to the Court to pay
him this balance in execution of his decree,
dated the 18th April 1876, R. attached and
obtained payment of such balance in execution
of a decree for money which he held against At.
and B. On the loth June 1877, R., in execution
of his decree of the 18th April 1S76, brought to
sale JV.'s one-third share in mouza £>., and
became its purchaser. On the 20th July 1877,
R., in execution of a money decree against At.,
brought to sale his share in mouza A., and
became its purchaser.
Held, in a suit by N. against R. in which he
claimed that the sum due by him under the two
mortgages of 16th March 1870, and the decree
of the 18th April 1S76, might be ascertained,
and that on payment of the amount so ascer-
tained, the sale of his one-third share in mouza
D. might be set aside, and such share declared
redeemed, and that the sate of N.'s share in
mouza D. could not be set aside.
MOKTGAGE-ronfW.
Held also, that if it were shown that the sam
realized by the sale of his one-third share in
mouza D. exceeded the proportionate share of
his liability on the two mortgages, he was enti-
tled to recover one moiety of such excess as a
contribution from mouza A.
As it appeared that there was such an excess,
the Court gave N. a decree for a moiety of such
is, together with interest on the same from
the date of the sale of N.'s share at the rate of
12 per cent, per annum, and further directed
that if such moiety together with interest were
paid within a certain fixed period, A', would
be at liberty to recover it by the sale of the share
louza A., or so much thereof as might be
necessary to satisfy the debt. Bhagirath v.
NaobaT Singh. Turner and Oidfield, JJ I.
L. Rep, S All. IIS, 1879,
8. Undivided Share— Butwara Proceed-
ings^ G. S. was, with others of his branch of
the family, joint proprietor of eight annas
of mouzas G., P., T. R., and It. On (he appli.
cation of some of the joint proprietors a butwara
or partition under Regulation XIX. of 1814 was
ordered by the Collector. Pending this parti-
tion, G. S., by deed of conditional sale, mort-
gaged his eight annas interest in mouzas G., P.,
and R., and in express terms excluded from the
mortgage his eight annas of mouza T. R., and
Under the partition when completed G. S. had
allotted to him the whole of mouzas P. and J>.,
36 beegas in C, and another mouza, f., not
mentioned in the mortgage deed. The right,
title, and interest of G. S, in the several mouzas
thus allotted to him was subsequently sold to
the defendants, in execution of decrees against
The mortgagee obtained an order for foreclo-
sure of his mortgage under the provisions of
Regulation XVII. of 1806, and subsequently
sued the representatives of G. S., and the de-
fendants for a determination of his title to, and
possession of, all the mouzas P. and y., and
eight annas of T. A'., and that portion of mouza
Sf. which had been allotted to G. S. -.—
Held, that the mortgage by G. S. of his un.
divided share might be enforced against the pro-
les allotted to him under the butwara, in
of such share, both as against G. S- himself,
and as against the defendants, purchasers of his
ight, title, and interest in execution of decrees
against G. S.
D,„i„.db»Googlc
( 1007 )
DIGEST OF CASES.
MORTGA GE - c on td.
The mortgage, being of the undivided share
of G. S„ could not affect the interests of the
other sharers ; and the mortgagee, who took the
security subject to the right of those sharers
enforce a partition, and thereby convert what
was an undivided share of the whole in'
fined portion held in severalty, could not
fully have sought to charge any other parcel of
the estate in the hands of the former co-sharers.
Bvjmath Lall e. Ramoodeen Chowdev.-.L.
Bep. 1 1. A. 106, 1873 ; S. C. 31 W. Rep.
233.
&f SliARAT CHUNDBR BURMON f.
HUROOBINDO BURMON ...I
L. B«p. 4 Cat BIO.
Under Partition by Uie Rotohub Au-
thoritiea.
10. Merger — Foreclosure — Proceed.
ings on the first of two Mortgages of the same
Property to the same Mortgagee.} On the 26th
March 1871, the defendant, K. S., mortgaged to
G. B., by way of conditional sale, a half-share in
five different properties, for Rs. li.coo. On the
9th May 187a (the Erst mortgage being unpaid),
the defendant gave G. B. another mortgage by
way of conditional sale of the same properties
that were mortgaged by the prior deed, and also
of three other properties, for Rs. 34,000, to be
repaid on 9th May 1873. On the 291I1 July
1873, **■ B- aerv*ll tne defendant with notice to
foreclose the properties mortgaged by the deed
of the 26th March 1872. On the 23rd March
1874, the defendant's half-share in one of the
five properties mortgaged by the deed of 36th
March 1872 was sold for arrears oi revenue, and
the plaintiff became the purchaser, subject to
the mortgages then existing on it. The plain-
tiff, to protect his interest, arranged with G. 8.
to purchase from him his entire interest in the
two mortgages ; and on the 3rd June 1874 an
assignment was made by G. B. of alt bis interest
as mortgagee in the mortgaged property to B. M.,
as trustee for the plaintiff, the assignment
being expressly stated to have thus been made
to a trustee to prevent a merger of the mortga-
gor's interest in that of the mortgagee as regards
the property sold for arrears of the land revenue.
The plaintiff, on 7.8th April 1875, filed a suit
(making his trustee B, M. a co-plaintiff) seeking
to obtain possession of three of the properties
mortgaged by the first deed, by force of the
foreclosure proceedings, and to obtain a declara-
tion that he was entitled, by virtue of his pur-
MORTGAGE —eontd.
chase, as well as of the foreclosure proceedings,
to a proprietary right in the property purchased
t the rt
tale.
Pending this suit, the plaintiff brought an-
other suit against the same defendant to recover
the amount of the mortgage debt and interest
due on the second mortgage : —
Meld, that the assignment of the mortgages
to a trustee for the plaintiff, operated to prevent
a merger of the mortgagor's and mortgagee's
and consequent extinguishment of the
irtgage debt ; but that the plaintiff, who was
beneficial owner of the property purchased at
the revenue sale, subject to the mortgages, and
such liable, conjointly with the owners of the
other mortgaged properties, to pay his propor-
of the entire mortgage debts, could not
foreclose the Grst mortgage to satisfy the debt
le under it, and then sue the defendants per-
nally for the debt due on the second mortgage
though that debt were not a charge upon the
ortgaged property at all, and he himself were
it liable for his proportion of it
Qmsre, whether the plaintiff under the cir-
imstances had any right to foreclose the first
mortgage. The effect of bringing the second
■open the foreclosure and prevent
the foreclosure proceedings being confirmed or
ioned, and enabled the Court to make a
decree in the whole case. Kaliprosonno
Ghose e. Kamini Soonduri Chowdiaik,
Gartk.C.]., and McDonnell, ) ...I. L. Rep. 4.
CaL 476 ; 3 CaL Bep.
184, 1878.
Pint and Second Mortgagees— As-
signment byMortgagee — Rights of Assignees ■"] In
March 1865, the proprietors of a four -annas share
n a certain village mortgaged it to R., placing
iim in possession. Under the terms of the
nortgage, the mortgagee was entitled to the
irofits in lieu of interest, and the mortgagors
vere entitled to redeem on payment of the
incipal without interest. In April 1S65, R.
11b -mortgaged the share to S. and others, tr-
aining possession of the share. In February
:86a, the proprietors again mortgaged the share
to R. for a further advance. Under this mort-
gage, R . was entitled to the profits in lieu of in-
terest, and the mortgagors were entitled to re-
deem the whole share on payment of the
principal due on both mortgages without inter-
in portion of the share on payment
of a proportionate amount of such sums with-
Digitized by GoOgle
( 1009 )
DIGEST OF CASES.
( 3010 )
MORTGAGE -™»[(<i
out interest, or a certain portion of the share on
payment of a proportionate amount of such sums
without interest on the 1 5th JethSudiof any year.
In August 1872, $■ and his co-mortgagees ob-
tained a decree against J?, on the mortgage of
1865, directing that R.'s rights and interests
under the mortgage of 1865 should be sold. In
May 1874, R. assigned by sale to N. his rights
and interests under the mortgage of February
1869, he retaining possession of the share.
In April 1877, the rights and interests of R.
under the mortgage of 1865 were sold in execu-
tion of the decree of 1872, and were purchased
by the decree -holders, who obtained possession.
In a suit brought by N. against S. and his
co-mortgagees, for possession of the share, in
virtue of the assignment of May 1874, and for
mesne profits -.—Held, that the defendants, by
reason of their interest as sub-mortgagees of the
whole four-annas share under the first mort-
gage to R., and as purchasers under the decree
they obtained against him of his interest under
the first mortgage, were entitled to possession of
the property as mortgagees, in preference to the
plaintiffs, who had only obtained an assignment
of the interest of R. under the second mortgage
made to him. Sahai Pandev v. Shah Naraih.
Pearson and Oldfieid, J] IL. Rep. 2 AIL
142, 187S.
IS. Usufructuary Mortgage — Agree-
ment for Absolute Sale of Mortgaged Property in
Default of Payment on Date fixed for Redemption
— Mortgage by Conditional Sale.'] By a deed
purporting to be a deed of usufructuary mort-
gage, dated the and July 1815, the mortgagors
agreed to pay to the mortgagees, who were put
in possession, 1,500 pons with interest at one
fanam per ten pons per mensem ; stipulating that
the income of the mortgaged property should be
applied, first in payment of the Government
assessment, secondly in payment of the salary
of a manager, and thirdly in reduction of the
mortgage debt. It was then provided that the
mortgage debt should be repaid by instalments ;
*>*., 500 pons on the 9th April 1816, 500 on theioth
April 1817, and 500 in 1820. As to the balance
then remaining due, the mortgagor covenanted
as follows :—" That in the year 1 819-20 a settle-
ment of the accounts of the receipts and dis-
bursements shall be made, and any amount that
may be due after deducting payments made out
of principal and interest as aforesaid, we under-
take to pay in full on the 30th of Pangani of the
MORTGAGE -contd.
said year, and to redeem the mortgage. If by
the 30th of Pangani the money be not paid up
in full, and a balance still remain due, you
yourself shall take, hold, and enjoy such of the
lands (herein) as you may like, and as may be
equivalent to the balance due, at pons 50 per
veil, as if under the terms of a deed of absolute
sale. The said pedagai (hamlet) consists of
eelis a$, mans J, and gulia yAjV, and their value
ispons 1,269 and/ananw 3|. Ifthe balance due
exceed this amount, the25 velis, 7 mans, and
76/, g ulis of the land aforesaid shall pass to you,
as under an absolute sale, (or 1,269 pons and 3I
fanams, and any balance that may thereafter
remain due you shall recover from our other
property." No instalments were ever paid, and
no settlement of accounts took place in 1830, or
subsequently.
Assuming the transaction to be one of mort-
gage, the debt was liquidated by the usufruct at
the close of the year 1866-67:—
Held, that the transaction was not one of a
mortgage by conditional sale, and that the mort-
gagors were entitled to recover the lands with
mesne profits from 1866-67 ; and that there was
no reason for presuming that the very special
agreement contained in the deed of the and July
1815, for the purchase of the property in certain
events, was carried out between the parties ac-
cording to its terms, the contemplated settlement
of accounts being a necessary preliminary to the
performance of that contract. The essential
characteristic of a mortgage by conditional sale is
that, on the breach of the condition, the contract
executed itself, and the transaction was closed
and became one of absolute sale without any
further act of the parties or accountability be-
tween them. That it still has this effect in the
Presidency of Madras was what was decided by
the case of Pattabhiramier v. Vencatrow Naicken
and another (13 Moo. I. A. 560) which decided
that the contract of mortgage by conditional sale
Is a form of security known under various names
throughout India; that according to theancient
law of India it was enforceable according to its
letter, and that whether it was embodied in one
Instrument or in two separate instruments, and
whether or not the transaction appeared on the
face of the instrument to be in its inception a
irtgage; and further, that this law must be
taken to prevail in every part ol India in which
it has not been modified either by actual legisla-
or by established practice. The subject-
Digitized byGOO^Ie
( 1011 )
DIGEST OF CASES.
( 1012 )
MORTGAGE— contd.
mailer of the decision, therefore, is the con
of mortgage by conditional sate. But having
regard to the new course of decision that
sprung up at Madras and Bombay since
(in its origin radically unsound) upon mortgages
by conditional sale, recognizing and enforcing
the right of redemption, although any number of
years may have elapsed since the mortgagee':
title under the terms of the deed would hav<
become absolute, unless the right to redemptior
is barred by the law of -limitation; quare, whe
ther the decision in 13 Moo. I. A. 560 will be
followed in Ihe case of a mortgage by condi-
tional sale executed since I85S. Thuhbasawmi
Mudelid. Mahomed Hossain Rowthkn...L
Eep. 2 I. A. 241, 1875; I.
L. Bep. 1 Mad. 1.
13. Notification of Foreclosure— Beng.
Reg. XVII. of 1806, i 8— Proof of Notice— Re-
dtmptiou— Admission of Notice by some Mortga-
gees.] In a suit by Ihe heirs of the mortgagees
of certain property, for possession and registra.
tion of names, against Ihe mortgagors thereof,
and certain purchasers of Ihe equity of redemp-
tion in part thereof, it appeared that proceed-
ings had been taken lo obtain foreclosure under
Reg. XVII. of 1806; that no sufficient proof
of notification under § 8 of the Regulation,
to the mortgagors, of the plaintiff's petition of
foreclosure had been given in the suit ; lhat the
Zillah Judge in the foreclosure proceedings had
found due service of the foreclosure petition on
a mere statement to that effect by the Nazir;
and that six out of nineteen mortgagors had ad-
mitted due service of the petition.
Held, (1) that the condition of foreclosure
required by § 8 of Reg. XVII. of 1806, is that
the mortgagor should be furnished with a copy
of the petition, and should have a notification
from the Judge, in order that he may within a
year from Ihe time of such notice redeem the
property ; and in an action of this sort, brought
to recover possession as upon a foreclosure, it
was essential for the plaintiff to satisfy Ihe Court
that this condition had been complied with.
2. The functions of Ihe Judge under § 8 of
Reg. XVII. of l8c6 in foreclosure proceedings
ate purely ministerial, and service of the peti-
tion therein must be strictly proved in a suit lo
enforce them.
3. The finding of the Zillah Judge in the fore-
closure proceedings, so far from being conclu-
sive, was not even prlm& facie evidence in the
MORTGAGE— contd,
suit of service, sufficient to shift the onus of
proof in regard thereto.
4. The year allowed for redemption runs
from the date of service of Ihe notification, and
not from the date of the Judge's orderon the peti-
tion. Mohcsh Chunder Sein v. Musst. Tarlnee.
(io W. Rep., F. B. 27) approved.
J. The mortgage being for one entire sum,
of one entire share of property redeemable only
on payment of the entire sum, and foreclosure
being sought lo he enforced not against the indi-
vidual share of each mortgagor, but against the
whole estate, as upon one mortgage, one debt
and one entire right against all, service of the
notification on the above mentioned six mortga-
gors would be insufficient to warrant the fore -
:losure of the whole property, or any part of it.
6. The purchasers of the equity of redemp-
tion, whether they had taken possession or not,
having purchased prior to the foreclosure pro-
ceedings, ought to have been duly served with
e of foreclosure. The mortgagee when he
seeks to foreclose, must discover and serve Ihe
persons who are then owners of the estate.
NfJRENDER N A RAIN SlNGH B. DwARRA LaL
Munoul...L. Bep. 8 I. A. 18, 1877 ; L L.
Bep. 3 Cat. 397 ; 1 CaL
Bep. 36B.
14. Beng. Reg. XVII. of 1806— Service
of Notice of Foreclosure.'] The provisions of § 8
of Beng. Reg. XVII. of 1806, that a copy of the
mortgagee's application to foreclose is to be
served with thejudge's perwanna referred to in
section, are imperative, and not merely
directory. Where the evidence fell short of
proof that a copy of such application was served
with Ihe perwanna of the Judge's: — Held, that
such failure of proof was fatal to the plaintiff's
to recover possession of the mortgaged
premises after the expiration of the year of grace.
Where the plaintiffs, the second mortgagees,
'ho had foreclosed their mortgagor's equity of
redemption, sued for possession of the mort-
gaged property, and alleged lhat their mort-
gagors' equity of redemption had been finally
foreclosed by the first mortgagee after due pro-
ceedings and expiry of Ihe year of *race without
redemption, and that they were, therefore, en-
lled to absolute possession, and failed on the
ground that notice of foreclosure had not been
duly served -.—Held, that they were not entitled
■ a decree as mortgagees for possscssion
ibject lo their accounting to the mortgagors,
lhat being relief different from that prayed for
D,„i„.db»Googlc
DIGEST OF CASES.
MORTGAGE— contd.
in their plaint. TheBank op Hindustan, China
and Japan d. Shoroshibala Debbe. KcmpanA
Ainslit, JJ L L. Rep. 3 Cal. 311, 1877.
IB, Usufructuary Mortgagt— Purchase
by Mortgaget of Birt Tenures— Right of Mart.
gagor of Tatook to redeem Birt Tenures ■within
the Talook purchased by the Mortgagee."] In a
suit in 1870 to redeem a usufructuary mort-
gage, dated 1846, of a talookdar! interest, with
all its incidents, it appeared that most of thi
villages comprised therein were held by thin
persons under various birt tenures, valid and
subsisting at the date of the mortgage, but that
some of them were, in or before 1849, purchased
by the mortgagee, who at the summary settle-
ment after Lord Canning's proclamation wa>
allowed to engage for all the villages, and tc
hold them as a talook, subject to rights of sub-
settlement. It appeared also, according to a
settlement circular issued in Oudh on the 29th
of January 1861, that under the nutoabt,
tenures were presumably carved out of the
talookdar's estate ; that they were held under
him upon terms varying according to the terms
of the particular contract or pottah, and possibly
according to the custom of the particular dis
tnct : that they did not necessarily entitle thi
holders of them to engage directly with the
Government for the revenue; that when such
direct engagements took place, malikana
payable to the talook da r ; that they were s
times resumabte, and when resumed would fall
into the parent estate; and that in all 1
the relation of superior lord and tenant
sisted between the talookdar and the hi:
but that birts still subsisting entitle their holders
to sub- settlements under the Oudh Sub-St
ment Act, 1866. It appeared also that the
mortgagee, availing himself of his position
talookdar under the mortgage, had purchased
the birts in question in this suit for an
parent ly inadequate sum, and had treated
them as merged in the talook, engaging for
them as talookdar, and not as birtia, and taking
no steps to keep them alive as distinct sub.
tenures for his own benefit : —
Held, that though their lordships were not
prepared to affirm the broad proposition that
every purchase by a mortgagee of a sub-tenure
existing at the date of the mortgage, must be
taken to be made for the benefit of the mort-
gagor, so as to enhance the value of the mort-
gaged property, and make the whole, including
MORTGAGE-nmW.
the sub-tenure, subject to the right of redemp-
tion,— for it might well be that when the estate
mortgaged is a zemindary in Lower Bengal, out
of which a ptitnet tenure has been granted, or
one within the ambit of which there is an ancient
■.oiurraree istimrarte tenure, a mortgagee of
le zemindary though in possession, might
purchase with his own funds, and keep alive for
his own benefit, that putnee or makurraree, as in
cases the mortgagee can hardly be said
to have derived from his mortgagor any pecu-
liar means or facilities for making the purchase
which would not be possessed by a stranger,
and might therefore be held entitled equally
with a stranger to make it for his own benefit ;
— yet, that, under the peculiar circumstances of
this case, the mortgagor was entitled, according
to equity and good conscience, and consistently
with English law, upon paying the original
mortgage money plus the purchase money of
the birts, to redeem the estate as now enjoyed
by the mortgagee. Rajah Kiskendittt Ram v.
Rajah Mumtaz Ar.i Khan ..L. Rep. 6 1, A.
146 ; B Cal. Hep. 813, 1879.
16. Ambiguous Agreement.] A bond
by which the obligees, describing themselves as
residents of a particular place, hypothecate as
security for the debt " their property with the
rights and Interests," does not create a mortgage
of their property in the place in which they were
described in the bond as residing. Such an
agreement falls within the principle of the deci-
sions that a general hypothecation is too inde-
finite to be acted on. Dbojit ». Pitahbar.
Stuart, C.J., and Turner, J. ..I. I, Rep. 1 All.
376, 1876.
.7. Foreclosure by one of several Mort-
gagees.] Where the whole 0/ a mortgage debt
was due to the persons claiming under the mort-
gage jointly and not severally, and a person
ed only to one moiety of the debt fore.
I the mortgage as to that moiety, and sued
the different mortgagors for possession of a
loiety of their interests in the mortgaged pro-
perty, in virtue of the mortgage and foreclo-
Held, that the foreclosure was invalid and the
its were not maintainable. Bishan Dial r.
amni Ram. Turner and Oldfield, JJ...I L.
Rep. 1 All. 397, 1876.
18. Covenant not to alienate. .] y.gave
B. a bond for the payment of money, in which
D,gltlzed by G00gle
( 1016 )
DIGEST OF CASES.
MORTGAGE- amti.
he hypothecated certain immoveable property
as security (or such payment, covenanting not
to sell'or transfer such property until the mort-
gage debt had been paid. In breach of this
'condition he granted M. a lease of his rights
and interests in such property for a term of I2j
years. B. having sued on such bond, and ob-
tained a decree charging the property with the
satisfaction of the decree, sued M. and B.
the cancelment of the lease, and a declara1
that it would not be binding on the purch;
at the sale in execution of the decree, alleging
that the lease had been granted to defeat the
execution of the decree. The High Court
refused, in view of its decision in Chuntti v.
Thakur Das {I. L. Rep. I All. 126), to interfere,
with the decree of the lower Court giving B.
such a declaration. MulChanDv- Balgobind
Pearson and Oidfield, JJ...I. L. Rep. 1 All.
610, 1878
19, Covenant not to alienate.'] D,
mortgaged certain property to the plaintiffs by
a deed which contained the following condi-
tion 1 — " I will not transfer the mortgaged pro-
perty to any one else until the principal sum
together with interest is repaid. Should I
transfer it, the transfer will be illegal." In con-
travention of this condition, D. transferred hi:
proprietary right in the mortgaged property tc
the defendant by a lease. The plaintiffs, hav-
ing obtained a decree for the sale of the mort-
gaged premises, sued tbe defendants to set aside
Held, that the transfer made
of the condition in the mortgage was not abso-
lutely void, but voidable so far as it was a de-
feasance of the plaintiff's rights, and the Court
declared that the lease would not be binding
the purchaser in execution of the plaintiff's
decree, unless he desired its continuance. Cmun-
ni r. Thakur Das. Pearson and Turner, JJ...I.
L. Rep. 1 AIL 186, 1876.
SO. Suit for Money charged
moveable Property — Covenant not to alienate ]
By a deed dated the 17th of April 1$
sideration of a loan of Rs. 710, the mortgagor
gave the mortgagee one-half of the profits of a
certain mouza up to the end of the then current
settlement, and charged the remaining one-half
share of the profits with payment of the mort-
gage debt with interest. It was also stipulated
that tbe mortgagee should take the management
of the mouza, rendering accounts to the mortga-
MOBTGAGE-.-f<»ifrf.
gor, and that if the mortgagor should fail to pay
the debt therein mentioned, or take another loan
and fail to pay it wiihin the term therein men-
tioned, the mortgagee should remain in posses-
sion of the entire mouza until payment of all
that might be due. The original mortgagor
having died, his heir executed a second deed on
the 6th of February 1873, admiting the original
charge, and the existence of a further debt of
Rs, 1, coo, which latter debt he undertook to dis-
charge by the payment of Rs. 500 on a day
named, and agreed that the balance should be
realized by the mortgagee from half the profits
of the mouza in his possession, according to the
terms of the bend for Rs. 710, and that until the
realization of the amounts entered in both the
bonds the mouza should continue in the mort-
gagee's possession, and that the mortgagor should
have no power to sell, mortgage, or alienate it.
In a suit by the mortgagee On the bonds to bring
to sale the mouza in satisfaction of the debts
Held, that the first deed created no hypothe-
cation of the mouza itself,but only assigned one
half of the property to the mortgagee for the
period of the then current settlement, and charged
the residue of the profits with the mortgage ; and
that although if the condition against alienation in
the second bond had stood alone, it might have
been sufficient to create a simple mortgage of
the estate, and entitled the plaintiff to an order
for sale, yet the clause must be read with what
preceded it, and, so read, tbe intention of the
parties was to mortgage the profits, and not the
mouza itself, nor any share in it ; and the plain,
tiff, therefore, was not entitled to the relief
sought by him. Ganba Prasad «. Kusvaky
DlN. Pearson and Turner, J] I. L. Rsp.
1 All. fill, 1S7B.
SI. " Pemarthum" Mortgage— Re-
demption— Malabar Lavs.] In the case of a
lortgage of the kind prevailing in certain parts
of Malabar, called a " pemarthum" mortgage,
the mortgagor redeems, the mortgagee is
entitled (before restoration of the mortgaged
property) to be paid its market value at the
of redemption, not the amount for which
it was mortgaged. P. Shekari Varha Valua
Rajah v. MangoLam Amugah. Hollirmay and
Innes, JJ I. L. Bap. 1 Had. 67, 1876.
S3. Stamp Act XVIII. of 1869, § 3, CI.
8 and 36, and Sched. I., CI. 10— Pledge of Pro.
perty not in esse— Evidence Act I. of 1B73, J 92 —
Digitized byGOO^Ie
( 1017 )
DIGEST OF CASES,
MORTGAGE— contd.
Oral Agreement contradictory fa Written
Contract—Act VIII. of 1859, § 343— Paver of
Manager appointed by Court— Lien of Mana-
ger of West Indian Estates— Salvage Lien—Es-
toppel, Knowledge, Acquiescence.'] M., the ma-
nager of an indigo concern, under J 243 of Act
VIII. of 1859, by a deed dated the 1st of
February 1873, in which the owners of the
concern joined, which was duly registered, "and
made with the Court's sanction, mortgaged the
concern, and pledged the entire season's crops
to A- and B., who were pardanashins, to secure
repayment of a large sum of money, consisting
partly of the balance of previous loans from
the husband of A- and B., and partly of a new
loan to the extent of what was described in the
deed as the estimated outlay of the season.
The deed provided that A. and B. should have
a first charge on the indigo to be manufactured
in the season in respect of the moneys secured
thereby ; that the indigo should be sold subject
to A.'s and B.'s direction ; that until the debt
was paid off, M. should have no power to sell,
mortgage, or transfer the properties thereby
mortgaged, or in any way to deal with the Sale
proceeds of the manufactured indigo; and that
A. and B. should have full power to arrange for
the appointment and dismissal of the servants of
the concern, and for its better management.
Freviouly to* this, vit., in October 1873, M. had,
in pursuance of his letter of appointment, filed
an estimate for the season's outlay largely
exceeding the amount mentioned in the deed
as the estimated outlay, and had alleged that, at
the time of executing the mortgage deed, he
had informed C, who was the general manager
of A. and B., and, as such, was the only medium
of communication between M. and A. and B.,
that further advances would be necessary.
According to M.'s account, C. told him that A,
and B. were unable to make any further advan-
ces, and that he could, if they were needed
obtain them on the usual terms from the plain-
tiff's, who were indigo brokers. In previous
years, during the lifetime of the husband of A.
and B, who had held similar mortgages of the
concern and the crops in those years to secure
advances made by him, such advances had,
with the mortgagees' knowledge, been supple-
mented by loans obtained from the plaintiffs on
the security of the first crops to the extent
such loans. And it was alleged by St. that
was upon the understanding that the san
course was to be followed in the present instan
MORTGAGE— amid.
that the mortgage deed to A. and B. was exe-
uted.
The moneys advanced by the latter were whol-
ly expended by April, when M., without corn-
eating with .4. and B. and with only the
verba.) sanction of the Court, applied to the
plaintiffs for a loan, and On the 26th April the
plaintiffs wrote to M. that they would make
varices to the extent of Rs. 50,000, on his
signing to them and giving them a first charge
the first 250 maunds of indigo to be manufac-
tured in the season, and they enclosed a form
of assignment for M.'s signature, which he signed
id returned lo the plaintiffs on the 3rd May.
his document bore a two-rupee stamp. In
September and October, M. obtained further
idvances from the plaintiffs, giving them similar
etters of assignment bearing two-rupee stamps.
Of the money thus advanced by the plaintiffs,
Rs. 5,000 were paid to C. for A. and B., by a bill
irawn on the plaintiffs. About Rs. 17,000 were
ipptied towards the expenditure of the following
eason, and the remainder in the production of
the then season's indigo, and M, stated that
without it he could not have manufactured any
ndigo that season. The indigo, when manufac-
tured, was claimed by A. and B. under their
mortgage, and their claim being resisted by M.,
who set up the plaintiffs' rights under theJetters
of assignment, A . and B. sued to enforce the
provisions of their mortgage deed. In this suit
the indigo was attached before judgment and
sent to Calcutta for sale. The plaintiffs then
sued A. and K and the holders for sale to establish
their first charge in respect of their advances to
n 360 maunds of the indigo on the strength.
of their letters of assignment : —
Held, per Garth, C.J., and Macphtrson, J., that
the letters of assignment to the plaintiffs were
imciently stamped with an eight-annas stamp.
They were not " mortgages" within the meaning
of Act XVIII. of 1869, Sched. I., § 10, for,
though in the nature of equitable mortgages, i1
could not be said that the property thereby as-
signed existed in British India at the time of the
execution of the deed, it not having then been
produced.
Held, per Garth,C.].,Matpkerso**Ti&Phear,]].,
that the alleged Oral agreement between C. and
M. as to obtaining loans, if necessary, from the
plaintiffs, and giving them a first charge on the
season's indigo in respect of such loans, was in
direct contravention and defeasance of the
D,„i„.db»Googlc
DIGEST OF CASES.
( 1010 )
TKORTQAQE-contd.
mortgage deed to A. and B-, and was therefore
inadmissible in evidence, under S 92 of the
Evidence Act.
Held,pet Garth, C.J. and Pkear, ]., that the
plaintiffs were neither in the position of mana-
gers of the concern nor consignees of the indigof
and were therefore not entitled to any lien on
the indigo, similar to the lien possessed by the
manager or consignee of a West India estate.
PerPhear, J.— That the plaintiffs could not
claim a lien on the indigo on grounds of a sal-
vage character, it being essential to such a lien
that the person spending the money of which he
claims reimbursement should have sorr
in the property, or some right or duty towards
the owners, who are to be affected by the claim,
impelling him to make the expenditure,
mere volunteer cannot in general claim such
lien. The plaintiffs stood in no such relation 1
the estate, or the proprietors of it, as to hai
cause on that ground for spending their money
in the cultivation of indigo on it in the season of
1872-73, but were strangers to the estate, and in
the situation of ordinary money-lenders, with no
other motive than the expectation of pecuniary
profit from the bargain itself.
Per Macpherstm, J.— That the plaintiffs failing
to prove knowledge and acquiescence on the
part of A. and B. as regards the advances, and
the terms on which these advances were made
by the plaintiffs, even supposing those advances
were absolutely necessary to enable the indigo to
be manufactured, and that without them no
indigo could have been manufactured, yet there
was nothing in the contention that the matter
could be treated in the nature of a case of
salvage. A. and B. had a first mortgage, as a
security for the sum advanced hy them for the
season's manufacture, and no reference being
made to them before the loans were obtained
from the plaintiffs, there was no principle of
equity on which A. and B., who were on the
spot, and might at any time have appealed to,
could be postponed to the plaintiffs, who wt
strangers brought in over their heads, without
their consent, by the mortgagor.
Held, an the facts by Garth, C.J., Matfhi
And Pkear, })., that there was no evidence of such
knowledge and acquiescence on the part of A.
and B. with respect to the advances by, and th<
assignments to, the plaintiffs as would estop
them from disputing the plaintiffs' claim.
MORTOAGE-ronW.
Per Pkear, J — Section 243 of Act VIII. of 1859
does not authorize a Court (o appoint a manager
to carry on a judgment debtor's business pending
execution proceedings, and to invest him with
power to raise money for that purpose. Whether
or not the Civil Courts in the Mofussil have the
power, such as that possessed by the Court of
Chancery in England and by the High Court, of
managing the properties of parties to a cause,
pending suit or administration, the Court's mana-
ger, under such circumstances, only acquires a
right to charge his costs and expenditure against
the parties to the suit, or persons who have
knowingly placed themselves in a like position
relative to his management, and even then he
can only do so in respect of such expenditure as
has been expressly sanctioned by the Court.
The ground of his right is that he is the Court's
officer acting under the' Court's direction as
between the parties to the suit, and with the
Court's sanction, which cannot be rightly given
ithout speciflc inquiry in each matter requiring
nction ; the exercise of the Court's discretion
nnot be delegated to the manager by anticipa-
>n. MoraNv. MiTTu BibeE. Ga-M,C.J.,and
Macpkerson, J I. L. Rep. S Cal. 08, 1876.
On appeal from Pkear, J.
i, Covenant net to alienate.'] A bond
for the payment of money, with a simple cove-
nant not to alienate the obligor's property until
payment, does not constitute a mortgage-
Therefore, where a bond executed in consider-
ion of a loan contained the following agreement 1
I promise to repay the whole principal with
iterest in the month of Phalgun 1271, F. S., and
till the payment of the amount 1 will not transfer
any property by conditional sale or mortgage,"
but contained no further proviso declaring inva-
lid future alienations of the lands of the obligor,
in the manner specified in the bond : —
Held, that the instrument did not operate as a
mortgage. Rajkumar Ram Gopal Narain Sing
V. Ram Dutt Ckowdhry (5 Beng. L. Rep. 264)
distinguished. GUNNO Singh t. LalafuT Hos-
ain. Garth, CJ.,and Birth,}.,.!. Js. Rep. 3
Cat. 336 ; 1 Cal. Rep. 01. 1877.
34. Property situated partly in Oudh
and partly in the A>. W. P.—Forectosure— Juris-
diction-Beng. Reg. XVII. of 1806, f 8.] Where
a mortgage of land situated partly in the District
of Shahjehanpur in the N. W. Provinces, and
partly in the District of Kheri in the Province
zedbyGoOglC
"\
( 1021 )
DIGEST OF CASES.
( 1022 )
MORTGAGE-™.^.
of Oudh, was made by conditional sale, and the
mortgagee applied to the District Court of Shah-
jehanpur to foreclose the mortgage, and render
the conditional sale absolute in respect of the
whole property : —
Held, in reference to the ruling of the Privy
Council in Ras Muni Dibiah v. Fran Kishen Das
(4 Moo. I. A. 392) that where mortgaged pro-
perty is situated in two districts an order of
foreclosure relating to the whole property may
be obtained in the Court of either district, that
the circumstance that Oudh was in some respects
a distinct province from the N. W. Provinces
did not take the case out of that ruling, inas-
much as Reg. XVII. of 1S06 was in force in
Oudh as well as in the N. W. Provinces at the
time of the foreclosure proceedings. Surjan
Singh v. Jagan Nath Singh. Stuart, C. J./ and
Pearson, J I. L. Hep. 2 AIL
313, 1879.
SB. Priority— Registration— Merger-
Salt in Execution of Decree on Mortgage.'] On
the 15th July 1B64, two undivided brothers
executed a mortgage of their joint property to
the plaintiff for Rs. 500, and on the 8th January
l36Sthey executed another mortgage of the
same property for Rs. 1,000 lo the defendant,
who registered it under Act XX. of 1866. In
August 1871, a suit was brought against the
brothers on the mortgage of 1864, and in
October 1871 a decree was made for the sum
due, and the decree directed that in default of
payment in two months the mortgaged property
should be sold. In March 1872, the property
was sold in execution of the above-mentioned
decree, and bought by the plaintiff, who was duly
put into possession. In 1871, a suit was brought
against the brothers on the mortgage of 186S,
by the defendant ; a decree was made similar to
that in the above-mentioned suit, a sale of the
property was had in execution thereof, and it
was bought by the defendant. The plaintiff was
thereupon dispossessed and referred to a regu-
lar suit, and the defendant was put into pos-
session. This suit was then brought by the
plaintiff to eject the defendant, and the lower
Appellate Court made a decree in the plaintiff's
favour. On second appeal by the defendant: —
Held, affirming the decision of the Court be-
low, that the mortgage of 1864 did not require
registration in order to maintain its priority over
the mortgage of 1868.
MORTGAGE- contd.
Held also, that the right of the plaintiff to the
security of the properly pledged by the mort-
gage was not merged in the decree which he
obtained.
Held also, that the plaintiff having bought the
rights and interests of the mortgagors, and
obtained possession under a sale prior to the sate
to the defendant there was no right or interest
left in the mortgagors to sell to the defendant,
and he acquired no title against the plaintiff in
point of law.
Per Kernan, J. — But thepurchase by the plain-
tiff of [he right and interest of the mortgagor
was subject to the mortgage to the defendant,
and as the defendant was not a party to the
plaintiffs mortgage suit, the defendant's right
as mortgagee was not affected by the sale.
Per Kernan, J.— Under a sale in execution of
a decree for sale in a mortgage suit, the right
and interest which the mortgagee and mort-
gagor could jointly sell pass to the purchaser.
Venkatnarasabimah p. Raiiiah. Innes and
Kernan, JJ I. L. Bep. 2 Had. 108, 1879.
36. Condition against Alienation.'] A
mere stipulation by a judgment -debtor, against
'horn execution has been applied for, in a pe-
ition to the Court executing a decree, that he
'ill not alienate his property until the decree
should have been paid, does not create a charge
iny particular property belonging to him.
fpal e. Jag Ram. Stuart, C.J., and Oidfield,
J I. L. Bep. 3 All. 440, 1879.
37. Usufructary Mortgage followed by
Sale— Revival of Mortgage by Cancelment of Sale
Redemption — Attachment in Execution of De.
cree— Act VIII, 0/1859, i *&■] *■ mortgaged
1859 certain immoveable property, being joint
ancestral property, for e
giving the mortgagee possession of the mort-
gaged property. In 1S61, Z. sold this property
the mortgagee, whereupon Z.'s sons sued
their father and the mortgagee and purchaser
to have the sale set aside as invalid under the
Hindu law, and in August 1S64 obtained a
decree in the Sudder Court setting aside the
le. The mortgagee purchaser remained, how-
rer, in possession of the property as mortgagee.
In May 1867, Z. having sued the mortgagee for
possession of the property on the ground that
the sale had been set aside as invalid, the High
Court held that Z. could not be allowed to
n the purchase money and eject the mort-
D,„i„.db»Googlc
( 1023 )
DIGEST O.F CASES.
< 10" )
MORTGAGE— contd.
gagee purchaser, but must be held estopped
from pleading that the sale was invalid. In
November 1867, one K. having caused the pro-
perty to be attached and advertised for sale in
execution of a decree which he held against Z.
and his sons, the mortgagee objected to the sale
oE the property, on the ground that Z. and his
sons had no saleable interest in the property. The
objection was disallowed by the Court executing
the decree, and the rights and interests of Z. and
his sons were sold in the execution of the decree,
A", purchasing them. In 1878, K sued, as the
purchaser of the equity of redemption, for the
redemption of the mortgage of 1859 : —
Held, that K. was entitled to redeem.
Held also, that the mortgagee not having con-
tested in a suit the order dismissing his objec-
tion to the sale of the property in execution ol
K.'s decree, he could not deny that K. had pur-
chased the rights and interests remaining in the
property to Z. and bis sons.
Held also, that the mortgagee had no lien on
the property in respect of his purchase money.
Held also, that it being stipulated in the deed
of mortgage that the mortgagee should pay the
mortgagor a certain sum annually as Maltkana,
and the mortgagee not having paid such allow,
ance since the date of the sale, the plaintiff was
entitled to a deduction from the mortgage money
of the sum to which such allowance amounted.
Basant Rai a. Kanauji Lal. Spanhie and
Straight, jj I. I,. Rep. 2 AIL 45S, 1878.
28, Usufructuary Mortgage — Jut
diction of Small Cause Court and of Munsiff.~]
M. and S. executed a document to the plaii
in the following terms 1— " We, M. and S
hereby declare that we have mortgaged a house
situate in Ghaxiabad, owned and possessed by
us, in lieu of Rs. 300, to K- and G., for two
years; that we have received the en
gage amount from the mortgagee, and nothing
remains due ; that we have put the mortgagee
possession of the thing mortgaged like ou
selves ; that eight annas has been fixed
monthly interest besides the rent of the house,
which we shall pay from our own pocket ; that
we agree that we shall pay the aforesaid sum in
a period of two years to the mortgagee, and get
the thing mortgaged redeemed ; that if we fail
to pay the mortgage amount within the period
of two years, the mortgagee shall be at liberty
to recover the mortgage amount in any way he
pleases."
MORTGAGE— contd.
In a suit brought upon this
ver the principal amount advanced, and rent
id interest, amounting in all to Rs. 4*7, by
sale of the mortgaged premises, the defendants
contended that the above document created no
mortgage of the house, and that the plaintiffs
1, therefore, was not cognizable by the
Munsiff, in whose Court it had been instituted,
but by the Small Cause Court at Meernt :—
Held, by Stuart, C.J., Oldfield and Straight,
JJ. {Spanhie, J., dissenting), that the document
created a mortgage of the house as security for
the payment of the principal sum lent, and that
the plaintiff waa therefore entitled to recover by
sale of the mortgaged property. Dulli v. Baha-
dur (H.C. Rep. N. W. P. 187 s, p. 55) distin-
guished. Phul Kitak e. Murli Dhur I.
L. Rep. 2 AIL 027, 1870.
. Joint Mortgage — Purchase by Mart-
gagee of Share in Mortgaged Property — Redemp-
,] Where all the proprietors of an estate
joined in mortgaging it, and the mortgagee sub-
sequently purchased the share in such estate of
one of the mortgagors, thereby breaking the
joint character of the mortgage, and one of the
mortgagors sued to redeem his own share and also
the share of B., another of the mortgagors :■ —
Held, that he was entitled to redeem his own
share, but could not, against the mortgagee's
will, redeem fi.'s share. Kuhay Mal v. Puram
Mac. Spankie and Oldfield, JJ...L L. Rep. 2
All. 565, 1879.
80. Of a Minor's Property— Be facto
Guardian— Act XL. of 1858, { 18.] Since the
passing of Act XL. of 1858, no greater powers
can be exercised by a de facto guardian, who
had not legally completed his right to manage a
minor's estate, by taking out a certificate under
that Act, than can be exercised by a guardian
duly appointed under that Act.
Held, therefore, that a mortgage in 1868 by a
Mahomedan widow as the de facto guardian of
her minor daughter, but who had not taken out
a certificate, under Act XL. of 1858, of immove-
able property, belonging to herself and such
daughter, purporting to have been executed in
consideration of monpys advanced for the pur"
pose of satisfying decrees which had been ob-
tained against her late husband, the father of
such minor daughter, in execution of which the
property mortgaged had been attached, and for
other 1
ary p.iipoi
. for the benefit of such
D,gltlzed by G00gle
( 103S )
DIGEST OF CASES.
< 10E0 )
MORTGAGE -cantd.
minor daughter, was invalid, so far as it purport-
ed to create a mortgage of her daughter's share.
Held also, in a suit upon such bond brought
against the widow and her daughter after the
latter had attained majority, that the plaintiff
could not recover against the daughter
simple money bond for money lent ; inasmuch
as her mother had no authority, under j 18 of
Act XL. o£ 1858, to contract debts on behalf
of her minor daughter ; and even assuming
that the signature on the bond was sufficient
to bind the daughter, if it was in the power of
the mother to bind her, and that the bond
a bond to | which the daughter's signature had
been affixed by the mother, yet the daughti
being, at the time of the execution of the bond
a minor, was incompetent to contract. (Contract
Act IX. of l873,| 11.)
Held also, that assuming that the money bor
rowed from the plaintiff had been applied by thi
mother for the benefit of the daughter, yet that
the case did not fall within §f 65, 68 to 70, 01
any of the provisions of the Contract Act, and
that the plaintiff was not entitled to recover froir
the daughter personally. Whether the daughtei
was indebted to her mother in respect of any
part of the money borrowed from the pli
could only be ascertained on takingthe
of the latter's management of the former's e!
and such account could not be taken in thi-
at the instance of the plaintiff, whose remedy
was confined to a decree against the person with
whom he entered into the loan transaction, «*.,
the mother. Abkassi Begum v. Maharanee
RaJROOP KoonwaR. Ainslie and McDonnell,
J] LL, Eep. 4 Cal. 88, 1878.
31, Mortgage by Administrator of a
Minor's Property—Purchaser with Notice— Act
XL. of 1858, § 18.J A mortgage of the property
of a minor made by the administrator appointed
under Act XL. of 1858, is invalid, unless the
sanction of the Court has been previously ob-
tained under ( 18 of that Act.
Where the administrator was sued, as repre-
senting the minor, by the mortgagee, and did
not defend the suit and the property was sold,
under a decree so obtained, to the mortgagee,
who sold it to tbe defendant, who knew that the
administrator had executed the mortgage in
that capacity : —
field, that. the decree did not protect tbe mort-
gagee who purchased at the Court sale, nor her
KOBTGAGE--ronM.
vendee, the defendant, from suit by the minor
for recovery of the property. Debi Dutt Sa-
v. Subodra Bibbe. Garth, C.J. , and Ainslie,
J I. L.Bep.9 CaL 388, 1876.
See Alienation by Guardian. 2.
Ram Ch under Chuckerbutty n.
BrOJONATH MOZUMDAK...I. I(,
Bop. 4 Cal, 029.
See 8al« by Guardian.
SOONDBK NARAINP. BeHNUoRam.
I. L. Hep. 4 CaL 76.
See Mahomcd&n Law— Sale by
Guardian.
A™ Review. 10.
83. With Power of Sale— Deed in
English Form — Lands situate in the Mofussit.]
A sale, without the intervention of a Court, of
mortgaged lands situated in the Mofussil of the
Bombay Presidency, under a power of sale con-
tained in an indenture of mortgage of the
ordinary English form, is valid if due notice be
given to the mortgagor of the mortgagee's inten-
tion to sell, and the sale be fairly conducted.
A mortgagee selling under a power of sale
cannot, either directly or through the medium
of an agent or trustee, himself become the
purchaser under the power. Pita m BAR Nar-
rayandas it. Vamjtau Shamji. Westropp and
Kembatl, JJ I. L. Rep. 3 Bom. 1, 1870.
38. Deed in English Form—Lands in
Mofussil — Injunction.'] Where property mort-
gaged is situated in the Mofussil of the Bombay
Presidency, but the parties to the mortgage are
residents of Bombay, conducting the transaction
through Bombay solicitors, and the instrument
of mortgage is a regular and formal deed in
English form, the parties must be held to have
tended to contract with reference to the Eng-
:h law, and to be entitled to enforce their
rights accordingly.
"here such a mortgage deed contains a
r of sale by the mortgagee, after due notice
to the mortgagor, and the mortgagee gives such
notice of his intention to exercise the power,
the mortgagor is not entitled to an injunction
strain the exercise of the power of sale by
the mortgagee merely by filing a suit for redemp-
The mortgagor can only stay the sate
pendente lite if he can show that he has made
legal tender of the amount due which has
been refused, or that he has paid off the mort.
gage lien, or by paying tbe amount due into
Digitized byGOO^Ie
(
)
DIGEST OF CASES.
( 1023 >
MORTGAGE -contd.
Court, or by giving primd facie evidence that
the power of sale is being exercised in a ft.iu.
dulent or improper manner, contrary to the
terms of the mortgage. Jagjivan Nanabhai
«. ShRIDhar BaLkrtshna. Mtkill. ind Pinhey,
JJ I. L. Hep. 2 Bom. 362, 1877.
34. Sale under—Effect of— Right of
Second Mortgagee to purchase.'] " The effect of
a sale under a power of sale contained in i
mortgage is to destroy the equity of redemptior
in the land, and to constitute the mortgagee
exercising the power a trustee of the surpli
proceeds, after satisfying his own charge, first
for the subsequent incumbrancers, and ulti
ly for the mortgagor. The estate, if purchased
by a stranger, passes into his hands tree from
all the incumbrances. There seems
reason why the second mortgagee, who might
have bought the equity of redemption from the
mortgagor, should not equally with a strangei
purchase the estate when sold under a power of
sale created by the mortgagor." Per Cur.
. Rajah Kishendatt Rah e. Rajah Mumtaz
Ali Khan L. Hep. 6 I. A. 148.180.
35. Conditional Decree.] A conditional
decree fixing a.period of one month for payment
of money found to be due on mortgage bonds
entitling the mortgagor to redemption, though
not claimable as of right by the mortgagor in
redemption suit, who ordinarily should be ready
to pay at once with his money, is a proper and
judicious order passed by an Appellate Coi
where the Court of first instance determined the
amount payable under the mortgage, but failed
to fix any time in its decree for the payment of
such amount. Raja Barda Kant Rai «. B hag-
wan Das. Spankie and Oldfield, JJ... I. I,.
Rep 1 All. 844, 1S77.
S. C. under Interest. 2.
36. Usufructuary Mortgage—Condi-
tional Decree.] The plaintiffs sued to recover
possession of certain lands .alleging that the defen-
dants were in possession of the same as usufruc-
tuary mortgagees, and that the mortgage debt
had been satisfied from the usufruct. The de-
fendants denied that they were in possession as
usufructuary mortgagees. The lower Courts
found that the defendants were in possession as
usufructuary mortgagees, but that the debt had
been satisfied from the usufruct, as alleged by the
plaintiffs, but nevertheless gave the plaintiffs a
decree for possession conditional on the pay-
ment of the balance of the mortgage debt:— field, JJ
MOBTGAGE— contd.
Held, that as the defendants never rendered
any accounts, and denied they were in possession
as mortgagees, and inasmuch as no agreement
had been made as to the amount at which the
profits should be estimated, it was impossible for
the plaintiffs to have ascertained before suit what
sum, if any, was due by them, and seeing that.
whether the decree was altered or not, the plain.
tiffs might immediately pay the balance, and
demand possession, which the defendants could
legally refuse, it was unnecessary to interfere
with the decree. Sahibzadah v. Par.mes.har
DaSS. Turner and Spankie, JJ..X 1. Bap. 1
All. 634, 1877.
87. Right to redeem— Adverse Posses-
sion— Limitation.] The possession of a mort-
gagee does not become adverse whenever he
chooses to style himself, or is styled, proprietor
of the mortgaged property ; nor will the mere
.ssertion of an adverse title enable a mortgagee
n possession to abbreviate the period of sixty
ears, which the law allows to a mortgagor to
prosecute his right to redeem and seek his re-
medy by suit. Sheopal v. Khadim H ossein (H. C
Rep. N. W. P. 1875, p. aio) followed.
Where, therefore, the plaintiffs in 1854 mort-
gaged an estate to the defendants for a period of
twenty years, and before the expiration of that
rm the estate was sold in 1863 to the defendants
id A. and B. by the plaintiffs' mother as her
'n, by a deed to which the plaintiffs were not
parties, hut which was followed by mutation of
registry, notwithstanding an objection preferred
by the plaintiffs, but under which neither A. nor
.ever obtained possession: —
Held, in a suit brought in 1877 by the plaintiffs
redeem the property, that though the exe-
ition of the deed of sale by the plaintiffs' mother
suld have justified them in suing for its avoid-
ance, such a proceeding was not necessary or
obligatory on them, nor was their suit barred
because it was not brought within twelve years
from the date of the execution of the deed, nor
did the mere exhibition by the defendants
of their names as the vendees of the property in
the proprietary registers of the Revenue depart-
proprietary title in them, for such a
title must have a legal origin, and the plaintiffs'
mother was incompetent to transfer their rights
to the defendants by the deed of sAte. Ali
Mohamad d. Lalla Bakksh. Peamsei and Old.
...I. L. Bep. 1 AIL 666 .""•STrf"
zed by GOO
;
DIGEST OF CASES.
( 1030 )
MORTGAGE -contd.
38. Set-off of Costs against Mortgage
Money— Solicitor's Lien.'] The decree in a re-
demption suit directed (he plaintiff {the mort-
gagor) to pay the mortgage money and interest
to the defendant (the mortgagee), and directed
the defendant to pay the plaintiff the costs of the
Held, that the plaintiff was entitled to set off
or deduct the amount of the taxed costs payable
to him under the decree, from the mortgage
moneys payable by him to the defendant not-
withstanding any claim the defendant's solicitor
might have against the defendant in respect of
the defendant's costs of suit Brijnath Dass v-
JlIGGERNATH DaSS. PontifeX, J... I, L. H*p. 4
CaL 742 ; 4 Cal. Rep. 123, 1879.
S&. Lien on Bond.] The mere fact
that a money decree has been obtained on a
bond by which property is hypothecated does not
destroy the lien on that property. It is open to
a plaintiff to establish his right on the bond, as
well as on the decree. Hassoon Arra Begum
■p.JawadoonnissaSalooda Khandan. Ainslie
and Hitter, JJ...L L. Sep. 4 Cal. 28, 1878.
40. Right of Purchaser of Money.
Decree obtained on Mortgage Bond — The pur-
chaser of a simple money-decree obtained on a
mortgage bond hypothecating immoveable pro-
perty, does not merely by his purchase acquire a
lien on the property. Ganpat Rai it. Sarupi.
Pearson and Turner, ]J I. L. Rep. 1 All.
448, 1877.
See Sale in Execution of a Decree.
4.9.
41. Payments by Mortgagee on account
of Enhancement of Revenue— Suit to recover the
same pending the Mortgage.] By the terms of a
deed of usufructuary mortgage, the mortgagor
accepted the liability on account of any addition
that might be made to the demand of the Go-
vernment at the time of settlement. During the
currency of the mortgage tenure, the mortga-
gees, averring that they had had to payacertain
sum in excess of the amount of Government
revenue entered in the mortgage deed for two
years, sued the mortgagor to recover such
excess. The defendant contended that on a
proper construction of the mortgage deed, the
plaintiffs' claim could not be preferred during
the currency of the mortgage, but only when
accounts were settled on the redemption of the
mortgage i—
67
MORTGAGE- re* W.
Held, that as no settlement
contemplated by, or necessary under the provi-
sions of the mortgage deed, and as that deed
ined no
x press pro vi
adjustment of any sums paid by the mortgagee
in excess of the amount of Government demand
at the time of the execution of the deed to the
time when the mortgage tenure should be
brought to an end, the suit was not premature,
and could be entertained. Nikka Mald. Sl'lei-
MAN Shhikh Gardner. Pearson and Oldjield,
JJ L L. Rep. 2 All. 198,1879.
MORTGAGED PROPERTY SALE OF
TO DIFFERENT PERSONS— Lia-
bility to contribute on payment of Debt
by one.
See Contribution. 2.
MOTHOOBANATH *. KRTSTO Ku-
mar I. L. Rep. 4 Cal.
369.
MORTGAGEE— Assignee of— Rights of.
See Mortgage. 11.
Sahai Pandey o. Sham N a bain ...
I. L, Rep. 2 All. 142.
Duty of — to Give Notice of his Mortgage
when selling the Mortgaged Premises
under Money Decree unconnected with
his Mortgage.
Sec Mortgage. 3.
Tukaram 0. RAMCHANDRA...I. Xi.
Rep. 1 Bom. 314.
Set Sheriff's Bale. 3.
I. L. Rep. 1 Cal. 837.
Lien of— on Sale of Mortgagor's Interest
in Execution of Money Decree obtained
by.
See Mortgage. B.
Tukarah o. Rahchanora I,
L. Rep. 1 Bom. 314.
Sec Sheriff's Sale. 3.
Bhuggobutty e. Shama Churn...
I. L. Rep. 1 Cal. 337.
■ Not in Possession — not Estopped by
Decree establishing Right of Way in Suit
against Mortgagor to which he was nut a
Party and of which he had no Notice.
See Estoppel. 4.
BoNOMALEE ]■. KoVt.ASII Cilt'NDER.
1, L. Rep. 4 Cal, 892.
Digitized by G00gle
( 1031 )
DIGEST OF CASES.
( 10J3 )
MORTGAGEE---™™^.
Purchase by — of Portion of Tenure pre-
vious to Decree For Ejectment in Rent
Suit — Right to question Decree.
See Bent Suit. 1.
Madhoo Proshaud v. Purshan...
1. L. Rep. 4 Cal. 620.
Purchase by— of Mortgaged Property or
Share therein of one of several Joint
Mortgagors.
See Mortgage. 37. 39.
See Mortgage. 39. 38.
PlTAMBER V. VANHALI I. L.
Rep. 3 Bom. 1.
JACJIVANV. SHklDHAR Ibid.
362.
MORTGAGEE OF PATNI TALUK —
Right of — to prevent Sale of Mortgaged
Property for Arrears of Zemindari Rent
by Payment thereof.
Set Co. Sharer* of Patni Taluk.
Mohesh Chunder ». Ram Pro-
slsno L L. Hep. 4 Cal.
539.
MORTGAGEE IN POSSESSION- Adverse
Possession by.
See Mortgage. 37.
Ali Muhammadj. Lalta Bl-khsh
L L. Rep. 1 AU. 666.
Of Indigo Factory— Liability of— for Debts
of Factory.
See Indigo Factories. 1,
Mono hit R Dossd. McNagkten...
I. L. Rep. 3 Cal. 231.
— Liability of— to pay Asssesment.
Set Eabulayatdar Khot.
Khrishsaji b. Ramchandra...I,
I>. Rep. 1 Bom. 70.
. Ouster of — in Execution of Decree against
Mortgagor.
Set Civil Procedure Code, Act X.
of 1877, (332.
Skafi-ud.Dimv. Lochan Sikgu...
I. L. Rep. 2 AU. 04.
MORTGAGEE OF TJNDER-TENURK-
Right of— to Notice, on sale under Decree
for Arrears of Rent.
See Sale of trader-Tenure. 3.
Laidlev v. Gunness Chukder
SAHOO...L L. Sep. 4 Cal.
438.
MORTGAGEE'S COST&
Set a
1.1
Carvalho e. Nurbibi I. I*.
Rep. 3 Bom. 203.
MORTGAGOR— Grant by— Subsequent to
Mortgage.
See Mortgage. 6.
MUTHORA NATH V- CWJNDERllO-
NEY...L L.Rep.4CaL817.
MORTGAGOR AND MORTGAGEE—
Decree against Mortgagor in Possession
in Suit to which Mortgagee not a Party
and of which he has no Notice— Right of
Way.
See Estoppel. 4.
BoNOMALEE V. KoVLASH CHL'W.
der-.I. L.Rep. 4 Cal. 093.
MORTGAGOR'S TITLE, ACKNOW-
LEDGMENT.
See the Cases under Acknowledg.
ment of Mortgagor's Title.
MOTHER— Estate of— succeeding as Heir to
her Son.
See Hindu Law — Inheritance —
Mother.
SADASHIV V. SlTABAI I. L.
Rep. 3 Bom. 363.
Right of — to Share, on Partition between
Sons after Father's Death.
Set Parties to Suit. 3.
Torit Bhoosunv. Taraprosow-
no ..I. L. Rep. 4 Cal. 766.
Share of — on Partition among Sons —
Right of — as Representative of Deceased
See Hindu Law— Partition. 4.
JUCOHAN «. SaMMMITIB-X.
L. Rep. 3 CaL 149.
Unchastity of— excludes from Inheritance
to Son's Property.
See Hindu Law— Disqualification
to Inherit. 6.
Rahnath r. Duroa Sundaki.,.1.
L. Rop.4 CaL 860.
D.gmzed by G00gle
( 10S3 )
DIGEST OF CASES.
( 1034 )
MOTHER'S SISTER'S BON— Adoption of
—Valid among Sudras.
See Hindu Law— Adoption. 4.
CllINNA Nagavya v. Pedda Na-
ciAWA.,.1. L.Rep. 1 Mail.
62
MOTION TO DISCHARGE OR VARY
COMMISSIONER'S REPORT.
See Practice— Civil. 7-
Sumar Ahmad a. Haji Ism-ail. ..I.
L. Rep. 1 Bom. 109.
MOTIVES OF WIDOW IN ADOPTING
WITHOUT WRITTEN AUTHO-
RITY OF HUSBAND.
See Hindu Law— Adoption. 12.
Rajah Vellanki e. Vehkata
Rama. ..L. Hep. 4 I. A. 1 ;
I. L. Rep. 1 Mad. 174.
MOVEABLE PROPERTY— Succession to
— Marriage in India between Persons
with English Domicile.
See Indian Succession Act X. of
IBflS, § 4.
Miller *. Administrator Gene-
ral of Bengal... L L. Rep.
10aL412.
MTJLGAR — Right of— on Enhancement of his
Assessment to recover from his Mulgeni
Tenant.
See Mistake. 1.
Babsheti it. Venkataeam-ana....
I. L. Rep. 8 Bom. 164.
MULTIFARIOUSNESS — Partition Suit
seeking also toeject Cultivating Ryots,
See Partition Suit. 1.
S A MIND aP LI. LA] ir.SuBlA ReDDIAR.
I.L. Rop.l Mad. 333.
MULTIPLICITY OF SUITS — Suit for
Maintenance— Practice.'] It is not desirable that
there should be several suits in respect of the
maintenance of one widow. The system of
seeking or granting relief piecemeal, subjects
both plaintiffs and defendants tomueh unneces-
sary expense and trouble, and such a course
ought to be discountenanced, so far as may
legitimately be done, by the Civil Courts. Per
Westropp, C. J., in Lakshmah b. Satyabhama-
■ai I. L. Rop. 2 Bom. 484-487, 1877.
MULTIPLICITY OF SUTTS-nmW.
3. Maintenance— Practice."] * It may
be well to draw attention to the remark in the
recent case of Lakshman „. Satyabhamabai (1. L.
Rep. Z Bom. 404-497) censming the unnecessary
multiplication of suits for the maintenance of
one and the same widow. If the first suit were
properly framed, and a continuing decree for the
payment of her maintenance at a fixed monthly
annual, or quarterly rate were made, any further
decree would be unnecessary, unless either party
brought it to the notice of the Court that cir.
cumstances rendered it equitable that the rate
should be enhanced or reduced. Many circum-
stances might be suggested which would do so.
•■g; 0
arked ii
the
inual yield, the
value of the estate, o
destruction of a portion of the 1
addition to it, say by the shifting of the course
" Suits brought on continuing decrees in the-
ordinary Civil Courts for present and prospective
sustainable." Per Westropp, C.J., in SlDLTNGAPA
v. Sidava. L L. Rep. 3 Bom. 684-630,
1878.
MUNICIPAL COMMISSIONERS— Appeal
from Assessment by.
See Bengal Aet HI. of 1864, § 83.
ManessurDassit.Collector,&c.,
of Chapra I. L. Rep. 1
Cal. 408.
Power of— to Close or Divert Public High-
See Bengal Act IIL of 1864.
Empress ?. Brojonath Dev.,.I
L. Rep. 3 Cat. 425.
Public Servants.
See Jurisdiction. 18.
Gangadhar. s. Collector op
Ah 11 tnii agar ...I. L. Rep. 1
Bom. 638.
See infra.
Public Servant— Act fV.oft&W.i 39— Penal
Code, j SI,] Even assuming that the Municipal
Corporation of Calcutta is a public servant
within the meaning of § 21 of the Penal Code,
yet it is not a public servant within the mean-
ing of i 39 of Act IV. of 1877, and may, there-
fore, be prosecuted under the Penal Code with-
out the preliminary sanction of the Government.
boozed by Google
DIGEST OF CASES.
( 1086 )
MUNICIPAL COMMISSIONERS- -,
Per Ainslie, J.— The right to prosecute any
person, or body of persons, by whom one may
have been injured, is a common right which i
only be limited by special legislation; and
considering whether the right has been taken
away, the Court must see that it is taken away
by express words, or by necessary implication.
Per White, ].— Quart, whether the Corpora
tion, as distinct from its individual members, wai
a public servant at all, as those words are defined
in J zi of the Penal Code. Empress v. Munt-
cipal Corporation of Calcutta. Ainslie and
While, JJ I. L. Hep. 3 CaL 768 ; 3 Cal.
Rep. 620, 1878.
MUNICIPAL COMMITTEE- Power of.
See Hight to Sue. 4.
Fazal Hac; v. Maha Chawd...
I. L. Bep. 1 All. 007.
MUNICIPAL TAX-Legally imposed-Suit
to contest Incidence — Jurisdiction.
See Jurisdiction. 1.
Kamawa b. Uman...L L. Bep.
2 Mad. 37.
MUNICIPALITY— Suit against— Jurisdic.
tion in District Judge alone.
See Suit against a Municipality.
The Mur>
. Mai
i Ja»
L L. Itep. 3 Bom. 146.
Suit against— Substitution of President for
Secretary as Defendant— Limitation.
See Act XV. of 1873, f 43.
Manni Kasalpndhan v. Crooke...
I. L. Bep. 9 All. 298.
WTJNSHT-Viltage.
See Village Muneiff, 1.
Evidence. 23.
Criminal Procedure Code, Act
X. of 1872, g 122. 2.
Empkkss r. Rauanjiya L L.
Bep. 2 Had. 5.
MUN8IFF -JURISDICTION OF— Suit to
redeem Usufructuary Mortgage — Denial
of Mortgage— Value of Land.
See Jurisdiction. IS.
Kalian Das ,. Nawal Singh...
I. L. Rep. 1 All. 320.
MTJNSIFt* JURISDICTION OT-amtJ.
Suit to enforce Mortgage Bond by Sale of
Mortgaged Property.
See Mortgage. 28.
Phut, Kuar v. Muri.i Dhur..,
I. L. Bep. 1 ALL 637.
MURDER--.S™<rare.] L., C, K„ and D.
conspired to kill S- In pursuance of this con-
spiracy,/., first, and then C, struck S. on the head
with a lathi, and S. fell to the ground. While
S. was lying on the ground, K. and D. struck him
on the head with their lathis.— Held, (Stvart,
C.J ., diss.) that inasmuch as K. and D did not
begin the attack on 5., and it was doubtful
whether S. was dead when they struck him,
transportation for life was an adequate punish-
ment for their offence- Empress jr. Chattar
Singh. Stuart, C J., /Varum and Oldfield,)]...
I. L. Bep. 2 AU. 33, 1878.
2, Culpable Homicide— Penal Ode, f f
zoo, 300.] Where an act which causes death is
done with an intention to kill, the offence is
always murder.
Where the act causing death is done without
any intention to cause death or bodily injury,
whether the offence is culpable homicide or mur-
der depends on the degree of risk to human life.
If death is a likely result, it is culpable homicide ;
if it is the most probable result, it is murder.
When the act causing death is done with the
tion of causing such bodily injury as the
offender knows to be likely to cause the death of
the person to whom the harm is caused, the
offence is murder if the offender knows that the
particular person injured is likely, from pecu-
liarity of constitution, or Immature age, or other
special circumstance, to be killed by an injury
which would not ordinarily cause death. When
ct causing death is done with the intention
of causing such bodily injury as is likely to cause
death, it is culpable homicide; if done with tbe
tion of causing such bodily injury as is
sufficient in the ordinary course of nature to
! death, it is murder. Where the prisoner
knocked his wife down, put one knee on her
chest, and struck her two or three violent blows
the face with his clenched fist, producing
extravasation of blood on the brain, and she
died in consequence, either on tbe spot or very
shortly afterwards : —
Held, there being no intention to cause death,
and the bodily injury not being sufficient in the
ordinary course of nature to cause death, the
D,gltlzed by G00gle
DIGEST OF CASES.
(
)
KUEDER-rauirf.
offence was culpable homicide, and not murder.
Req. i. Govjnda. MeMIl,]., on reference by
Kimball and N. Hondas, JJ I 1. Bop. 1
Bom. 342, 1676.
. Balapa.,.1. L. Bep. 1
See Reg.
MUBHA.
See Mahomedan Law— Gift. 1, 2.
Juvan Baksh r. Imtiaz BegAM...
I. L. Bep. 3 All. 93.
Ameeroonissa b. Abedoonissa...
L. Bep. 2 I. A. 87.
MUTINY ACT (1877).
Sir Stat. 40 Vtot., 0. 7.
MUTUAL DEALINGS— Principal and
Agent — Co nt i n uous Account — Limitation.
See Limitation. 34.
Watson ». Aoa M
,.L. Bep.
111.
346.
MUTUWALLI — Joint— Survivorship —Ap-
pointment of Successor—Right to sue.
See Habomedan Law— Wakf. 1.
Pkate Saheb e. Damodar.. I. L.
Bep. 3 Bom. 84.
NAGAB VI88A VANIA CASTE.
See Hindu Law — Marriage in
Asura Form.
Jaikisondas v. Harkjsoniias.-L
L. Bep. 2 Bom. 9.
NARWADABI VILLAGE— Attachment of
unrecognized Portion of Bhag in.
See Bombay Act V. of 1862. 1. 2.
Ranchordas v. Ranchordas... I.
L. Bep. 1 Bom. 081.
Ardasib ». Muse. ..I. L. Bep. 1
Bom. 601.
Bombay Act V. of it6i— Partition.] There
is nothing in Bombay Act V. of 1862 which de-
bars a Civil Court from making a decree for
partition of Namadari land among the tfarmt-
dan. Vsribhai o. Raghubhai. tfetvitl and
Kemball,)] ~ L !»• Bep. 1
Bom. 226, 1876.
NATIVE BTATE-Act XL of 1872, » 3 »*l
9 — Offence committed in— Cyprus. "
See Offence committed at Cyprus.
Empress *. Sakmukh Singh. ..I,
L. Bep. 2 All. 218.
NATBA MARRIAGE.
See Hindu Law — Inheritance —
Illegitimate Bon. 4. 0.
Rakiv. Govind...I. L. Bep. 1
Bom. 97.
Narayan v. Laving ..I. L Bep.
2 Bom. 140.
See Penal Code, § 494.
Reg. v. Sahbhu...L L. Bep. 1
Bom. 347.
NATURE OF PRIOR MORTGAGEE'S
SECURITY.
See Mortgage. 1.
Shrtngapure e. Pethe...I. L.
Bep. 2 Bom. 662.
NATUBAL GUARDIAN- Alienation by.
See the Cases collected under Aliena-
tion by Guardian; Mort-
gage, 30, 31 ; Sale by Guar-
dian; Mahomed an Law-
Sale by Guardian, and Re-
view. 10.
— Loss of Caste of— does not deprive— of
Right of Custody of Infant.
See Lom of Caste. 1.
KANAHl V- BlDDYA.. I. L. R«p. 1
AIL 049.
Prostitution of.
See Habomedan Law— Guardian.
Abas: e. Dunne I. L. Bep. 1
All. 093.
NATURE OF SON'S INTEREST IN
IMMOVEABLE ANCESTRAL
PROPEBTY.
See Hindu Law— Undivided Fa-
Baldeo Das ii. Shah LalL.-.I. L.
Bep. 1 AIL 77.
See Hindu Law— Liability of An-
cestral Estate in the hands
of the Heirs for Debts of
the Ancestor.
Nirravan v. NAR5tj...I. L. Bep.
1 Bom. 262.
NEGLIGENCE— Burden of proof of— Carrier
— Loss by Fire.
See Railway Company. 8.
Ishwardas v- The G. I. P. Rail-
way Company.. .1 L. Bep.
3 Bom. 120.
D.gmzed by GoOgle
{ 1039 )
DIGEST OF CASES.
{ I0*> >
N/EQLIGENCE— ro.i/rf.
■ Contract Act IX. of 1S71, ( 19.
See Cancellation of Signature,
The Oriental Bank Corpora-
tion 0. John Fleming I.
L. ltep.3 Bom. 343.
1. ■ Duty of Persons sending Goods of a
Dangerous Character for Carriage by Kailmay—
Notice —Act XVItt. of r?S4. ( 1 5— Act XIII.
of 1855 — Compensation \ The defendant, a
chemist, carrying on thr business of a chemist
at Allahabad, instructed his assistant, who
waft also a qualified chemist, to prepare and
despatch to a customer at Gwalior some de.
tonating powder. The defendant had previously
supplied customers with detonating powder, the
component parts of which, however, were not
compounded In his shop, but sent to customers
in separate bottles. On this occasion, the de-
fendant's assistant, with the defendant's know-
ledge, compounded the ingredients of the deto-
nating powder, and placed them in one bottle,
which was packed and sent to the Railway
station for despach to Gwalior. The box con-
taining the bottle was not marked " dangerous,"
nor was any notice given, nordid anything exist
which could suggest to the servants of the
Railway Company, or the public, that the box
contained aoy explosive substance, or required
care in manipulation. White at the Railway
station, the box exploded, and the plaintiff's
husband, who was a servant in the employ of
the Railway Company, was so injured by the
explosion (hat he died. The cause of the ex-
plosion was unexplained, but the scientific wit-
nesses who were examined deposed that the
spontaneous explosion of such ingredients as
those of which this detonating powder was com.
posed, was a thing unknown in chemistry. In a
suit brought by the widow of the deceased, under
Act XIII. of 1855, to recover compensation for
the damage sustained by her by reason of the
dea.th of her husband : —
Held, by Stuart, C.J., that with reference to
the defendant's liability, it was immaterial how
the explosion took place; or that the defendant's
professional knowledge and experience were not
such as to have led him to anticipate such an
accident, especially by spontaneous explosion.
As a skilled and ' professional chemist, he was
bound to protect the public, whether Railway
clerks or others, to the utmost of his power, and
with the use of *e very precaution against any
possible consequences of his dealing with, and
NEGLIGENCE— contd.
sending by railway or by other means of carriage
chemical substances which he and his assistant
knew to be explosive, and therefore dangerous ;
and even if they did not know as much, they
must be assumed and taken to have known — at
least, the defendant, as a professed and skilled
chemist must be taken to have known — the real
and dangerous character of the contents of the
box, and he could not be excused for not having
notified that fact to the Railway Company and
the public by a distinct inscription on the box,
of the word " dangerous," or some other equally
suitable term, or in some other way, or by some
other means. The defendant, therefore, was
liable to compensate the plaintiff for the loss of
her husband, and considering that there were no
children of the marriage, the age of the deceased
and the nature of his employment as goods
clerk, the sum of Rs. 3,000 was a fair sum to
award the plaintiff.
Held, by Turner, Spankie, and OMfteld, }].,
that the cause of the explosion was immaterial.
It was incumbent on the defendant, both on the
general principles of law, and by the special pro-
ns of the Railway Act XVIII. of 1S54, to
notice of the contents of the box to the
Company's servants. A person may be liable
for the consequences of an accident resulting
from his own negligence in combination with
other causes which he did not contemplate.
Even if the explosion was spontaneous, it could
not have occurred had the defendant followed
the practice he had hitherto pursued, of sending
the ingredients of the powder in different bottles.
With a knowledge of the highly explosive charac-
ter of the preparation he omitted the precaution
which his own practice proved he considered
reasonable to preclude the risk of accident, and
was therefore liable.
Per Pearson,).— On the assumption that the ex-
plosion was spontaneous, the defendant was not
liable ; the death of the plaintiff's husband not
being the result of the defendant's illegal Omis-
sion to comply with the requirements of f 15 of
Act XVIII. of 1854, inasmuch as the explosion,
on that assumption, was not a natural and proba-
ble consequence of such omission. Lvell ■.
GangaDai.-.I. L. Rep.l All. 60, 1876, F.B.
NEGOTIABLE INBTKTJHENT— Promis-
sory Note payable only to Payee is not.
See Assignment of Chose in Action.
Kanhaiya Lal v. Domingo ..I.
L. Hop. 1 AIL 73U.
D,gltlzed by G00gle
1041 >
DIGEST OF CASES.
( 1043 )
Right of — in Undivided Family to
Inherit Estate of Deceased Uncle.
See Hindu Law — Inheritance-
Nephew.
Bhimul Doss ». Choonee Lall...L
L. Rep. 9 Cal. 379.
See Hindu Law — Inheritance-
Brothers. 3.
Dkbi Parshad v. Thakur Dial...
I. L. Bep. 1 All. 100.
NOMINAL DAMAGES- Defamation.
See Damages. 3.
FUTTEH PAROEE V. MoHENDER
Nath I. L. Bep. ICal.
See Judgment Ex -parte. I.
Dayal Mistree v. Kuppoor
Chund.-I. L. Bep. 4 CaL
318.
NON-JOINDER.
See Co-Sharers of Land. 4.
Bydonath Roy o- Grish Chun.
der Roy I. L. Bep. 3
Cal. 26.
NON-JOINDER OF LOCAL GOVERN
MENT IN SUIT AGAINST MU-
NICIPAL COMMITTEE.
See Act XV. Of 1873, §5 28 and 43.
Municipal Committee of Mob ad.
abad v. chatri slngh l
L. Bep. 1 All. 269.
NON-PAYMENT OF BENT— Extinguish-
ment of Right of Occupancy in respect of
Submerged Lands on their Re-formati
by.
See Extinguishment of Bight of
Occupancy.
Hemnath Dutt v. Ashgur Sin.
DAR...X. L. Bep. 4 Cal. 884.
- When Relation of Landlord and Tenant
once shown, no Proof of Cessation of that
Relationship.
See Landlord and Tenant. 5, 9.
Rungo Lallu. Aboool Gupfoor.
I. L. Bep. 4 Cal. 314.
i'eem Sukh Dasit. RllUPIA...!. L.
Bep. 9 AIL 817.
NON-PAYMENT OF BENT BY OCCTJ-
PANCT RYOT FOB KOBE THAN
19 YEARS— Admission of Liability to
pay — no Title to Land.
See Limitation. 21.
Poresh Narain v. Kassi ChuK-
DEB...I.L.Bep. 4 Cal. 861.
NON-RECOGNITION BY GOVERN-
MENT OF ADOPTION.
See Bombay Act IL of 1863, J 6,
CI. 9.
Vasudev v. Ramkrishna...I. L.
' Rep. 2 Bom. S99.
NOTES OF EVIDENCE — Taken by Ma-
gistrate — Affidavits to Supplement, on
Applicaton to transfer Case to High
See High Court Criminal Proce-
dure Act X. of 1876, f 147.
3.
Reg. v Hadji Jeebuh Bui... I. L.
Bep. 1 Cal. 3S4.
NOTES OF JUDGEMENT IN DEPUTY
REGISTRAR'S BOOK — Cannot be
used to aid in Construction of Decree.
Sec Construction of Decree.
Sumar Ahmed a. Haji Ismail. ..L
L. Bep. 1 Bom. 1S8.
NOTICE— Burden of Proof of.
See Onus Probandi. 1.
Lalubhai Bai v. Amrit...L L.
Bep. 9 Bom. 399.
Of Charitable Trust.
Set Hindu Law— Will. 10.
Maniklall Atmaram c Manik-
sha Dinsha Coachman...!.
L. Rep. 1 Bom. 269.
Sec the Cases under Trust.
Constructive Notice — Notice to Solicitor,
See Limitation. 3Sa.
Greenber Chunderv. Mackintosh.
I. L. Bep. 4 Cal. 897.
Rent.
See Sale of T/nder-Tenure. 8.
Laidley ti. Gunnkss Chunder
Sahou...I. I.. Bep. 4 Cal.
Dioitized by Google
t 1013 )
DIGEST OF CASES.
NON PAYMENT OF SENT-ranM.
Sale for Arrears of Revenue — Estate under
Attachment.
See Act XL, Of 1850, f S.
Banwaree Lall s, Mohabeer
Proshad L. Bep. 1
I. A. 89,
.NOTICE OF ACTION.
See Act XV. Of 1873, §| 38 and 43.
Municipal Committee of Morad-
ABAD «r. CHATRI SlNOM .1. L.
Bep. 1 All. 309.
NOTICE OF AFFEAIr-Act X. 1866, { 141.
See Company— Win ding up. 3.
Lallah Barroom ul ». The
Official Liquidator. ..I. L.
Bep. 4 CaL 704,
NOTICE OF DISHONOUR,
Se? Hundi. I.
Govind Ram Marwary «. Ma-
thoora Saboova _1 L,
Asp. 3 CaL 339.
NOTICE OF ENHANCEMENT OF
RBNT-By One of Several Joint Land-
lords.
See Enhancement of Bent. 9.
Balaji v. Gopal ..I. L. Bep. 3
Bom. 33.
Service of — on One Member of Joint Hindu
Family, owning Tenure, sufficient,
SM Bengal Act vm. of 1869, f
104. 1.
NOBADEBP CKUNDHRfl. SHONARAN
Dass I. L. Bep. 4 Cal.
509.
Stipulation for Increase of Rent of Land let,
if on Measurement it proved in excess of
Quantity stated in Lease — necessary.
See Enhancement of Bent. 8.
EkRAM MtlNDUL V. HOLODHUR
Pal I. L, Bep. 8. Cal.
371.
■ Tullubi Bromuttur Tenure.
See Enhancement of Bent. 6.
Nil Money o. Chunderkant...L
L. Bep. 3 Cal. 120.
brought under Cultivation.
See Beng. Act VIII. of 1869, f 14. 3.
NlSTARNI DASI *. BOHOMALI Chat-
ter]! I. L. Bep. 4 Cal.
941.
NOTICE OF FORECLOSURE— Right of
Second Mortgagee to.
Set Beng. Beg. XVU. of 1806, § 8.
Dirgaj Singh v. Debt Singh... I.
L. Bep. 1 AIL 489.
NOTICE OF FOBECLOBUBE, SERVICE
OF— Reg. XVII. of 1806, $ 8.
See Mortgage. 13. 14.
NoRENDARd. DwAKICA LALL...L,
Bep. 8LA.1A; I. L. Bep.
3 CaL 397.
Bank of Hindustan, Sec. e. Sho-
ROSHIBALLA DkbEE I. Zl.
Bep. 3 CaL 311.
NOTICE OF MORTGAGE— On Sate in Exe-
cution of Money Decree, unconnected
with Mortgage, obtained by Mortgagee.
See Mortgage. 6.
TUKARAM V. RAMCHANDRA...I. Jj.
Bep. 1 Bom. 814.
NOTICE OFPBOCEEDINOSIN EXECU-
TION OFDECBEEONHOBTOAOB
—Right of Prior Purchaser of Mortgaged
Property under Sale in Execution of
Decree obtained by himself to.
See Ida pendent. 1.
Lalla Kali Prosad v. Bun
Singh I. L. Bep. 4 CaL
789.
NOTICE, PURCHASER WITH -of Claim
of Married Woman to Property sold as
being her Separate Estate.
See Married Woman's Separate
Property. 8.
Beresford v. Hurst.. ,L L. Bep.
1 All. 772.
From Purchaser without.
See Equitable Mortgage. 1.
Daval JAIRAE v. Jivra] Ratansi.
I. L. Bep. 1 Bom. 387.
And see Raju Balu v. Krishna.
rao I. L. Bep. 3 Bom.
873-398.
D,gltlzed by G00gle
( 1043 } DIGEST OF CASES. ( 1018 )
NOTICE TO PROSECUTOR— Of Transfer NOTICE OF SALE OP PUTNI TENURE
of Case to High Court. FOR ARREARS OF RENT — Pub-
See HighCourt Criminal Procedure, lication of.
Act X. of 1875, J 147. 4. 5^ Reng-il Reg. VIII. of 1819,
Reg. p. Upkndronath Doss. I. § 8, CI. 2. 3.
L. Rep. lCftl. 356. j Matunoee Churn Miitkk v.
MOORARV MOHUN GhOSK...
*0WPB ™ <*UIT-SUit to eject is not euui- j j. L- Rep j_ Cai 1?5_
Set Landlord and Tenant. 1. | N0VATI0N-
Rajendhonatho. BAsstoEB RuH.i ** Champerty. 1.
man.. I. L. Rep. 2 Cal. 146, Chedambara Chetty o. Resoa
A>, Ejectment. 1. Krishna.. .L. Rep. 1 I. A.
Ram Rottonu. Netko Kali.it... I. : S41,
L. Rep. 4 Cal. 389. ! See Limitation. 56.
NATHAu JANAHDHAN...I. L. Rep.
Absence of — Objection as to — not raised j 1 Bom. SOS.
in Memorandum of Special Appeal, not j
allowed at Hearing. ; NUISANCE-Abatement of.
See Practice— Civil. 10. Set Land held by Joint Owners.
Babajeek. Nahayan ..I.L.Rep. Empress i. RAjcooMARSrsoH... I.
3 Bom. 340. ' L. Rep. 3 Cal- 573.
Tenant from Year to Year — Reasonable ' Abatement of Public— Suit for.
Notice-Act X. of 1872, * 530. Sfe Ejght tQ gua , 2 g 4 6
See Ejectment. 1. Raj coohar Singh t. Sahebzada
Ram Rotton v. Netro Kallv... Rov...L L. Rep. 3 Cal. 30.
L L. Rep. 4 Cal. 389. Sathu Kadirv ,bbah|h Aqa ,_ x
See Landlord and Tenant. 1. j L. Rep. 2 Bom. 467.
Rajendhonath ., Bassideb..l! Gehanji*. Ganpati.-.I. L. Rep.
L. Rep. 2 Cal 146. ! 3 Bom. 467.
NOTICE OF SALE— Proof of Service of. i Kak,m Bak8H »■ Bcdha... I. L.
Rep. 1 All. 249.
—Injunction to discontinue — Breach — Con-
HL'GWAN ChunDeH v. SudiiERi tempt — jurisdiction of Court issuing
ALLV...1 L. Hop. 4 Cal 4.1. ; Injunction.
See Criminal Procedure Code, Act
X. of 1873, 5 473. 1.
See Bengal Reg. VIII. of 1819, f 8, : Re(. pAHSAPA Mahadevapa
ci. a 1.
Ram Sabuk Bose v. Monmohini.
D03SEE...L. Rep. SLA. 71. NUNCUPATIVE WILL.
see Hindu Law-Will 12.
NOTICE OF SALE FOR ARREARSOF Bhaowam ,_ ^ , L
RENT-Publication and Service of- , 1 Bom. 641.
Defective — "Sufficient Plea for setting,
aside Sale." j OATH -II legally administered Validity of
S(V Bengal Reg. VIII. of 1819, §8.! Award founded on Evidence taken on.
3. , &•<■ Oatha Act X. ofl873, §§8, 10.
GOWREE LALL SlNGH tr- JoODHL, 13-
STBtK Hajrau.,.1. L. Rep. Wali-ul-la ,.. Ghulam Am
1 Cal 369. 1 I. L. Rep. 1 All. 535.
NOTICE OF SALE, SERVICE OF. ^
I. L. Rep. 1 Bom. i
D.gmzed by GoOgle
( 1017 )
DIGEST OF CASES.
( 1048 )
OATH-««W.
Power of Arbitrators lo administer — other
than in Prescribed Form.
See Oath* Act X. of 1873, §§ 8, 10,
13.
Wali
A if. GUI
L. Rep. 1 All. 636.
OATHS ACT X. OF 1B73— §5 8, io, 13.
Power of Arbitrators to administer Oath other
than in Prescribed Form— Validity of Award
based on Evidence taken on Oath illegally ad-
■ministered — Special Appeal.'] The matters in
dispute in a suit were, by consent of the parties,
referred to arbitration. During the investiga-
tion of those matters by the arbitrators, the
plaintiff offered to be bound by the defendant's
oath administered on the Koran. The defendant
agreed to take such oath, and the arbitrators
administered it to him, and made an award in
accordance with his evidence taken by them on
such oath. On special appeal to the High
Court, the plaintiff for the first time contended
at the hearing, the contention not being raised
in the memorandum of special appeal, that the
arbitrators not constituting a Court were not
legally competent to administer the oath to the
defendant, under J IO of Act X. of 1873, which
only empowers a Court to administer such oath
as is mentioned in f 8 of that Act, and that th.
defendant's evidence taken on such oath could
not form a valid basis of the award : —
Hrtdby Pearson, J., that the object v
valid, and, being one which vitally affected the
arbitrators' procedure, could not be ignored,
although not preferred in the lower Courts, and
although it was not to be found in the memo,
randum of special appeal.
Spankie, J„ doubted whether the objection
should be entertained in special appeal, but
held that, assuming that the plea could be taken
on special appeal, it should be rejected ; the
plaintiff offered to abide by the defendant's oath
on the Koran, and bis offer was accepted hy
the defendant; the plaintiff, therefore, w
bound by his agreement, made with the fr
consent of both parties, competent to ma
it, and for a lawful object ; and was bound by
the evidence of the defendant, given undei
obligation imposed on him, and fulfilled in the
manner required by the plaintiff hi
Held also, that there was nothing in Act X.
of 1873, which would make it unlawful for the
arbitrators to administer an oath on the Koran
to a party willing lo be sworn upon it ; and the
OATHS ACT X. OF \S73-contd.
arbitrators being authorized to affirm wit-
nesses in the manner in force in the Courts, the
substitution by them of an oath on the Koran by
request of one of the parties, assented to by the
other party, did not, under f 13 of the Act, in-
validate the evidence, nor render void the
award founded thereon. Wali-ul-la v. Ghulam
Au I. L. Bep. 1 All. 635, 1877.
OBJECTION TO DECREE AS DECLA-
RATORY, PRECLUDED, SPE-
CIAL LEAVE TO APPEAL
HATING BEEN GRANTED ON
OTHER GROUNDS.
See Practice— Privy Council. 0.
Sheo Singh Rai v. Mussumut
Dakho ... L. Rep. 6 I. A.
87.
OBJECTION NOT RAISED IN COURT
BELOW.
See Appeal— Civil. 8.
Pokan v. Par butty... I. L. Bep. 3
CaL 312.
As to Guardian de facto not being Legal
Guardian, not admitted in Second Appeal.
See Mahomed an Law — Sals by
Guardian.
Hasan Au v, Mehdi Hussain...I.
L. Bep. 1 All. 533.
As to Illegality of Oath administered by
Arbitrators.
Set Oaths Act X. 0." 1873, §§ 8,
10, 13.
Wali-ul-la v. Ghulam Au..X
L. Bep. 1 AU. 636.
As to Invalidity of Plaintiffs Adoption, not
allowed in Appeal.
See Practice— Civil. 8.
Janokee it. Gopal I. L. Bep.
SCal. 366-871.
As to Insolvency of Plaintiff Admitted in
Second Appeal.
See Appeal— Civil. 24.
Saoouin v. Spiers., I. L. Rep.
3 Bom. 437.
As to Jurisdiction.
See Appeal -Civil. 3.
B,u Makiiok v, Bulakki ..L L.
Bep. 1 Bom, 538.
£w Bgharky ;. Jaoco ...I. Is.
Bep. 4 Cal. 1 6.
D,gltlzed by G00gle
DIGEST OF CASES.
1 OBSTRUCTION TO PUBLIC THO-
ROUGHFARE—Suit to remove— Spe-
S to l.irli
See Limitation. 3.
Mdru v, Gopal ..I. L. Rep. 3
Bom. ISO.
S to Registration.
See Registration. 6. 14.
SakdarAi.ii.. Lachman I. L.
Rep. 2 AIL 554.
Basawa?. Kalapa ..L L. Rep.
2 Bom. 189.
1 Dam:
ge
■sunder § iSl,
See Practice— Civil. 2.
SethsGujhall&Co. s
As to Want of Notice to quit, not admitted
in Special Appeal.
See Practice— Civil. 10.
Habaji ». Nahayan...!. L. Rsp.
3 Bom. 340.
As to Want of Possession of Plaintiff's
Vendor disallowed on Special Appeal.
See Appeal— Civil. 38.
See Registration. 6.
See Pauper Respondent-
Baeaji v. Bai.i.al I. L. Rep.
1 Bom. 75.
OBSTRUCTION TO ANCIENT WIN-
DOWS.
See Mandatory Injunction. 1.
JAMNADAS V. AtMARAM ... I. L.
Rep. 3 Bom. 133.
See Light and Air. 1.
Sakorhai v. Ban: ...I. L. Rep. I
See Right to Suo. 1. 2. 3. 4. 5.
Sathv Kadir ii. Ibrahim Ac a... I.
L. Rep. 3 Bom. 4S7.
Gehanjisi. Ganpati ... I. L. Rep.
2 Bom. 467.
KAUIM BaKSH J. BuDHA I. L.
Rep. X All. 249.
Fazal Hao, v. Maha Chand...
Ibid. 037.
Raj Koomar Singh t. Sahebzada
Roy ...I. h. Rep. 3 Cal.
20.
See Bengal Act III. of 18G4.
Empress p. Projonath Dev ... I.
L. Rep. 3 Cal. 429.
OBSTRUCTION TO PURCHASER AT
SALE IN EXECUTION OF DE-
CREE.
S,v Sail in Execution of Decres. 12.
Hazaratoom-ah », BrojOnath
Ghose ... I. L. Rep. 3 Cal.
729.
OCCUPANCY-Extinguishment of Right of—
by Non-Payment of Rent — Submerged
Lands — Re-formation.
Sir Extinguishment of Right of
Ocmpancy.
Hrmnatk Durre. Ashour Sis.
DAR...L L. Rep. 4 Cal. 894.
- Inheritance to Rights of.
See Act XVIII. of 1873, 5 9. 2.
Bhagwanti v. Rudr Man Tiwabi.
L L. Rep. 2 All. 145.
- Right of— how and by whom can be
acquired — Firm of Capitalists.
See Right of Occupancy. 0.
Rai Kohul Dosskev. LaiDlBy...
I. L. Rep. 4 Cal. 957.
Lessee of Jalkar.
See Right of Occupancy. 6.
Bollyk Satee i. Akkah Ally...
L L. Rep. 4 Cal. 981.
-Right ot-inja.iar.
See Jalkar.
!NOH(H)tr. PrOMOTHONaTH.
I. L. Rep. 4 Cal. 787.
D.gmzed by G00gle
Dir.l'ST OV CASTS.
{ 10S2
OCCUPANCT-.-.W./.
See Bight of Occupancy. 6.
Boli.yb Satke v. Akram Ai.lv...
I. L- Rep. 4 Cal. 961.
Right of-of Pattadai Ryot.
See Rights of Mirus dara.
Right of— in Sir Land — Ex -Proprietary
Tenant.
See Act IVin. of 1873, § 7. 1.
Bakiiat Ram s. Waeir Ali ..I. L.
Rep. 1 All. 448.
RiKl,t of— not Transferable.
Si* Rig^t of Occupancy. 2. 4.
Ablakii Rai v- Audit Narram
Rai ..I. L. Rep. 1 All. 353.
Dwarka Nath v. HurrisbChun.
her .X L. Rep. 4 Cal. 925.
OCCUPANCY HOLDING — Transfer of a
Portion of.
Sit Transfer of Portion of Occu-
pancy Holding.
TirthahundThakoor -a. Muttv
Lall MisseR.,.1. L. Rep. 3
Cal. 774.
OCCUPANCY RIGHTS — In Chakeran
Lands.
See Chakeran Lands.
DKY...I. L. Rep. 4 Cal. €7.
Transfer of.
See Beng. Act Vin, of 1869.
Lal Sahoo*. Dev Nakai* Sjnoh.
I. L-Rep. 3CaL 7S1.
OCCUPANCY RYOT— Non-Payment of Rent
by— for more than Twelve Years - Admis.
sion of Liability— No Adverse Possession.
See Limitation. 21.
Poresh Narain o. Kami Chun-
der ...I. L. Rep. 4 Cal. 661.
OCCUPANCY TENANT — Inheritance to
Right of Occupancy.
See Act XVIII. Of 1873, § 9.
I L. Rep. 2 All. 145.
OCCUPANCY TENANT-!-™**.
Right of— When transferable.
See Right of Occupancy. 2. 4.
Ablahh Rai v. Audit Narhaix
Rai. ..1. L. Rep. 1 All. 353.
Dwarka Nath v. Hurrish Chun-
DKR...L L. Rep. 4 Cal. 925.
Sale of- Right of — in Execution of Decree
of Landholder.
See Act XVnt Of 1873, § 9. 1.
Ml'rad Bfgam t. Land Mort-
gage Bank I. L. Rep. 1
All. 047.
OVFENCE COMMITTED AT CYPRUS—
XI. of 1B72, i( 3 and 9— liability 1$ Natter
India,, British Subject for Offence committed in
Cyprus— Native State— Act V. of 1869. )\ 170,
171. J Held, Stuart, C. J., dissenting), that a
Native Indian subject of Her Majesty, being a
soldier in Her Majesty's Indian army, who com-
mitted a murder in Cyprus while on service in
such army, and who was accused of such offence
at Agra, might, under ( 9 of Act XI. of 1871, be
dealt with in respect of such offence by the
Criminal Courts at Agra, Cyprus being a
" Native State," in reference to Native Indian
subjects of Her Majesty, within the meaning of
that Act, and the provisions ol f 9 of that Act
being undoubtedly within the competency of the
Per Stuart, C.J.— Read by the light of the pre-
amble to Act XI. of 1872, the term Native Stale
in jj 3 and 9 means, and means only, a place
where, by treaty, &c, the Governor General of
India in Council has jurisdiction ; Cyprus, there-
fore, is not a Native State within the meaning of
that Act, nor is it a " Native State " in any sense
whatever. It has for the present been ceded by
the Turkish Government to the Crown of Eng-
land, and by the terms of the "convention of
defensive alliance between Great Britain and
Turkey," signed the 4th of June 1878, so far
from being a place in the sense of a " Native
State " without and beyond the dominion of Her
Majesty, it is directly administered by her offi-
cers, and is under Her Majesty's dominion and
control.
(P. 231.) "But there is another and most
serious consideration which 1 feel bound to notice,
trie., whether it is within the powers of the Indian
Legislature, not to pass such a law as Act XI. of
1872, but a law capable of such a construction
as is necessary to support this conviction. In
D,„i„.db»Googlc
DIGEST OF CASES.
( 10,-4 )
OFFENCE COMMITTED AT CYPRUS
—contd.
other words, can the Government of India in its
legislative capacity pass a law (or "trial and
punishment in respect of offences committed
in other territories and jurisdictions governed
and administered by, and equally representing,
the Crown and Government of England ? 1 think
the answer to these questions in the affirmative
might be successfully disputed. Empress r.
Sarhukk Singh I. L. Hep. 2 All, 218,
1879, F. B.
S. C. under Criminal Procedure
Code, Act X. of 1872,
§ 297. 7.
OFFENCES COMMITTED IN FOREIGN
TERRITORY.
Sec Criminal Procedure Code, Act
X. of 1872, §67.1.
Reg. -j. Lakhva ... I. L. Rep. 1
Bom. 60.
See Criminal Procedure Code, Act
X. of 1872, § 157. 1.
Reg. -■■- Locha ... I. L. Rep. 1
Bom. 340,
Jurisdiction of British Courts,
See Criminal Procedure Code, Ac'.
X. of 1872, % 67. 2.
Reg.h. Adivioadu...I. L. Rep. 1
Had. 171.
British Subject— Offence committed at Zan.
tibar— Jurisdiction of the High Court— Slat,
and 7 Vict., C. 94— Stat. 28 and 29 Vict., C.
116— Stat. 29 and 30 Vict, C. 87— Order in
Council ofgth August 1866— Evidence — Deposi-
tions-Evidence Act I. of 1872, § 33.] The
High Court of Bombay has jurisdiction to trj
a British subject accused of having committee
murder at Zanzibar, and sent by the British
Consul at Zanzibar to Bombay for trial. A
prisoner, a British subject, accused oF having
committed murder at Zanzibar, was sent by the
British Consul there for trial before the High
Court at Bombay. The Consul could not en.
force the attendance of witnesses at Bombay,
but he transmitted to the High Court the deposi-
tions which he had taken in the course of the
inquiry he had held with regard to the com-
mission of the alleged offence. In the absence
of the witnesses, the depositions were tendered
in evidence at the trial in Bombay : —
OFFENCES COMMITTED IN FOREIGN
TERRITORY— contd.
Held, that by the capitulation entered into
th the Sultan of Zanzibar, the British Consul
there had full authority to hold an inquiry in
of offences like that under trial, and that
rtue of Stat. 6 and 7 Vict., C. 94, and
es 13, 14, 23, and 24 of the Order in
Council, dated 9th August 1S66, the Consul was
authorized to take the depositions of the wit-
sses, and that they were admissible under
33 of the Indian Evidence Act I. of 1872.
Empress s. Dossaji Gulam Hussein. Sargeant,
I. L. Rep. 8 Bom. 334,
1878.
OFFENCE COMMITTED BEFORE THE
PENAL CODE CAME INTO OPERA-
TION -Beng. Reg. IV. of 1797— Act XVII. of
862— Act I. of 1868, § 6.] The prisoner was
tried under Act XVII. of 1862, found guilty,
d sentenced under Beng. Reg. IV. of 1797 to
importation for life, for a murder committed
186 1, before the Penal Code came into ope-
lion ; and the case was sent up to the High
Court to confirm the sentence. Beng. Reg.
IV. of 1797 was repealed by AcL XVII. of
1862, and that Act was wholly repealed by Act
VIII. of 1868 and Act X. of 1872 :—
Held, on a reference to the Full Bench, that
the conviction was illegal, f 6 of Act I. of 1868
not being applicable. Ebpress b. Diljour
Misser I. L. Rep. 8 Cal.
'22$, 1876, F. B.
3. Beng. Reg. IV.ofljtf, g 3-Act
XVII. of itez—Act I. cf i863, § 6.] Up to the
1st of January 1862, the law under which per-
sons were liable to trial and punishment for the
offence of murder was declared in the Regula-
tions. By Act XVII. of 1862, §§ I and I, the
Regulations and Acts prescribing punishments
for offences were repealed from the 1st of Jan-
uary 1862, " except as to any offence committed
beforethe utof January 1662;" and by § 4 of
the same Act the Acts and Regulations thereto-
fore regulating procedure in trials for offences
were repealed, in respect of those parts of India
in which the Code of Criminal Procedure came
into operation on the 1st January 1862, and
it was declared that no person convicted of an
offence committed before the 1st of January
1862, should'be deprived of any right of appeal
or reference to a Sudder Court, which he would
have enjoyed uoder any of the Acts or Regula-
tions thereby repealed.
D,„i„.db»Googlc
( 1035 )
DIGEST OP CASKS.
OFFENCE COMMITTED BEFORE THE
PENAL CODE CAME INTO OPE
RATION-™.,/,/.
The effect of Act XVII. of 1862 wa
the Regulations and Acts under which offences
were theretofore punishable unrepealed in re-
spect of an offence committed before the 1st
January 1S62. By Act 1. of 1868, ( 3, it is pro-
vided that in all Acts made for the purpose of
reviving, wholly or partially, a Statute, Act, or
Regulation repealed, it shall be necessary ex-
pressly to state such purpose, and by f 6 of the
same Act it is enacted that the repeal of any
Statute, Act, or Regulation shall not affect any
thing done, or any offence committed, or any
fine or penalty incurred before the repealing Act
shall have come into operation. By the repeal-
ing Act VIII. of 1868, the 1st, 2nd, and 7th
Sections of Act XVII. of 1862 were repealed,
and by Act X. of 1872 the sections of the Act
then unrepealed were repealed. There being no
express words to that effect, the repeal of Act
XVII. of 1862 did not revive the Regulations
in so far as they had been repealed by the
Act, but neither did they operate to repeal
those Regulations in so far as they were not
repealed by the Act. Thus in respect of
offences committed prior to the 1st January
1862, the penalties prescribed by the Regula-
tions were not affected by the repeal of Act
XVII. of 1862, nor were the Regulations pre-
scribing punishments for offences, which were
in force before the passing of Act XVII. of 1862,
repealed in respect of offences committed before
the 1st January 1862, prior to the passing of
Act I. of I86S.
To the several repealing Acts passed since Act
I. of 186S came into force, the provisions of § 6
of thai Act apply, and the repeal of a Regulation
subsequently to the passing of that Act does not
relieve offenders from the penalties to which they
were liable under the Regulations.
Held accordingly, where a person committed
murder in 1855, that such person was punishable
under the Regulations.
Held also that, inasmuch as such a right as the
right of reference given by § 3 of Reg. IV. of
1797 accrues on conviction, and therefore in the
present case had not accrued before Act XVII.
of 1862 was repealed, it was doubtful whether a
person convicted of murder committed before the
1st January 1862, has such a right. Empress?.
Mulma. Turner and Spankie, JJ...L L. Rep.
1 AIL 599, 1878.
OFFENCE COMMITTED BY PUBLIC
SERVANT, Afl SUCH -Sanction to
prosecute.
Set Sanction to Prosecute. 4.
Intra, v Lak3Huan...X. L Rep. 3
1.481.
OFFENCE MADE TIP OF PARTS -Con-
viction on several Charges— Sentence.
See Criminal Procedure Code, Act
X. of 1872, § 404. 1.
Empress s. Budh Singh... X. T..
Rep. 2 AIL 101.
OFFENCE HADE UP OF SEVERAL
OFFENCES — Sentence — Mating — Hurt.]
Rioting and causing hurt in the course of such
rioting are distinct offences, and each offence is
separately punishable. Empress^. Rah Adhin.
Pearson,} I. Xi. Rep. 2 All. 139, 1879.
OFFENCE PUNISHABLE WITH
TRANSPORTATION FOR LIFE
OR IMPRISONMENT FOR TERM
OF TEARS— Sentence when Transpor-
tation for less than Life awarded.
Set Penal Code, f 89.
Reg. v. Naiada L L. Rep. 1
All. 43.
OFFENCE TRIABLE WITH AID OF
ASSEBSORS— Trial of— by Jury— Ap-
peal on Facts.
See Trial by Jury.
Empress v. Mohiu Chundbr Rai.
L L. Rep. 3 CaL 765.
OFFENCE TRIABLE IN A SUMMARY
WAT— Offence under i 4.9, Act XXI. of
See Criminal Procedure Cod 9, Act
X. of 1873, (233.1.
Empress r. Baidanath Das L
L. Rep. 3 CaL 880.
OFFICE, DISTURBANCE OF.
See the Cases collected under Disturb-
ance of Office.
OFFICIAL ASSIGNEE— Manager of Joint
Hindu Family carrying on Joint Ancestral
Trade— Title of Official Assignee of.
See Hindu Law — Maintenance of
Widow. 9.
Jo.
llBRR*. SapRGOPAt ..I.
L. Rep. 1 CaL 470.
D.gmzed by G00gle
DIGEST OF CASES.
( 1038 )
OFFICIAL ASSIGNEE -contd.
Purchaser from — of Manager of Joint Hindu
Family carrying on Joint Ancestral Trade.
See Hindu Law — Maintenance of
Widow. 0.
JoHURRA BlBEE u. SrEEGOPAL
I. L. Rep. 1 Cal. 470.
1 Right of — on Sale of Land for Arrears of
Tirvai (Rent).
Set Insolvency. 2.
CHINNA S. MlJDALI ,1T. KANDA-
swahi Reddi...I. L. Rep. 1
Had. 69.
OIL AND FLOUR HILLS, AND EN-
GINE AND BOILER- Sale of-in
Execution of Decree of Small Cause Court,
See Fixtures.
Miller it. Brindabun...I. L.Rep,
4 Cal. 940.
OMISSION TO GIVE INFORMATION
TO THE POLICE OF OFFENCE.
See Criminal Procedure Code, Act
X. o"l872, §90.
Empress v. Achiraj Lall,..I. L.
Rep. 4 Cal. 603.
Empress o. Sashi Bhusan Chuck-
RABUTTV...rbid. 623.
OMISSION TO ISSUE FRESH PRO-
CLAMATION OF BALE-On Ad-
journment of Sate in Execution of Decree
— Material Irregularity.
See Bale La Execution of Decree. 6.
Gopee Nath Dobey o. Roy
Lachmipat I. L. Rep. 3
Cal. 542.
■ On Release from Attachment before Sale,
of Part of Property advertised for Sale —
Material Irregularity.
See Bale in Execution of Decree. 11.
Shib Prokask Singh v. Saroar
Daval Singh I. L, Rep,
8 Cal. 644.
OMISSION TO RECORD OR TAKE
OPINION OF ASSESSORS ON
ACQUITTAL OF AN ACCUSED—
No Ground for Revision.
See Assessors,
Narrain Dass...I, L. Rep. 1 All.
610.
OMITTING TO SEER FOR RELIFF
IN RESPECT OF A PORTION
OF CLAIM.
See Civil Procedure Code, Act
VEX of 1809, § 7. 1.
Tutsi Ram ?. GangaRah...I. L.
Rep. 1 All. 202.
OMITTING TO SUE FOR PORTION
OF CLAIM.
See Civil Procedure Code, Act
vnxofiase, |7. 2. 8.
IlakiBaksh v. I hah Barsh...L
L. Rep. 1 AIL 324.
Lachman Singh u. Sanwal
Singh I. L. Rep. 1 All.
543.
Simultaneous Suits.
See Civil Procedure Code, Act
Vm, of 1859, ( 7.4.5.
Kaleshar Prasad v. Jag an
Nath I. L.Rep. 1 AIL
650.
Rah Turrun «. Hossein Buksh.
L L. Rep. 3 Cal. 735.
ONLT HON- -Adoption of.
See Hindu Law— Adoption. 9.
Hani/man Tivari v. Chirai...
L L. Rep. 2 All. 164.
Adoption of— Void in Bengal.
See Hindu Law— Adoption. 3.
Manick Ckunder i. BnuGGO-
butty...I. L. Rep. 3 Cal.
443.
ONUS PROBANDI— In Application to be
declared Insolvent under Civil Procedure
Code.
See Civil Procedure Code, Act X.
Of 1877, §344.
Mumtaz Hossein v. Bki) Mohun.
"l. L. Rep. 4 Cal. 888.
Of Cessation of Relation of Landlord and
Tenant.
See Landlord and Tenant. 6. 9.
«. HlRBAI I. L.
Rep. 3 Bom. 34.
D.gmzed by GoOgle
DIGEST OF CASES.
( 10C0 )
ONT/3 PROBANDI— contd.
Of Customary Right to confirn
Mohunt.
See Mohunt.
Rajah Muttu Ramai
- Deed of Sale or Gift by Parda Woman.
See Pardanashin Lady.
Tacoordeen Tewarrv t. Nawab
Sved Ali Hossein Khan ..
L. Kep. 1 I. A. 102.
- that Goods carried by Railway Company
were ready for Delivery for a Reasonable
Time after Arrival.
See Railway Comjiany. 1.
SlIRUTRAM B. THE G. I. P. Rv.
■ Co.. ..I. L.Rep. 3 Bom. 98.
- Of Joint Estate.
See Hindu Law — Undivided Fa-
mily. 6.
Bannuo v. Kashee Ram... I. L.
Rep, 3 Cal. 310.
- That Lathing Grant was anterior to 1st
December 1790 A. D.
See Onus Probandi. 9.
- Mortgage of Ancestral Property by Father
—Suit against Father and Sons toenforce
See Onua Probandi. 7.
- Of Negligence — Carrier—Loss by Fir
See Railway Company. 3.
ISHWARDASS o. THE G. I. P. Rv.
Co.-.I L. Rep. 3 Bom. 120.
- Of Notice.
See Onus Probandi. 1.
- Of Partition and Self- Acquisition.
See Onua Probandi. 4.
-Of Payment of Hundi.
See Onus Probandi. 2,
- Purchase from (Hindu) Heir or Devisee—
Onus Probandi of Existence of Unpaid
Debts of Ancestor or Testator, and Heir':
or Devisee's Intention to misapply Pur
chase Money.
See- Limitation. 38a.
Greender Chunoek v. Mackin
tosh, ..I. L. Bop. 4 Cal. 897.
ONUS PROBANDI— eettUt.
Of Self.Acquisition.
See Onua Probandi. 4.
- In Suit to Redeem.
See Onus Probandi. 6.
- In Suit for Redemption of a Mortgage in
Oudh, that the Term had not expired
before 13th February 1856.
See Act L of 1869. 1.
Rajah Kishen Duttw. Narendar
Bahadoor ...L. Rep. 3 I. A,
80.
-In Suit for Resumption, against Auction
Purchaser at Sale under Beng. Reg. VII!.
of 1819.
See Onua Probandi. 3.
- In Suit to Resume Invalid Laihiraj Grant.
See Onus Probandi. 9,
- In suit for Separate Maintenance, by
Widow.
See Hindu Law— Maintenance of
Widow. 11.
Kasturbai v. Shivajiram Dbv-
KURUK...L I.. Rep. 3 Bom.
878.
- In Suit for Separate Maintenance, by Wile.
See Hindu Law— Maintenance of
Wife.
Kasturbai*. Shivajiraji.,.1 L.
Hop. 3 Bom. 373. 383.
- In Suit for Setting Aside Deeds.
See Betting Aside Deeds.
Tacoordhen Tewarry «r. Nawab
Sved Ali Hossein Khan...
L. Rep. 1 1. A. 192.
- In Suit to Set Aside Sale of Ancestral
Property by Father in Discharge of Debts.
See Hindu Law — Alienation of
Ancestral Property. 3.
Girdharee Lallo. Kantuo Lall.
L. Rep 1 X. A. 321 ; 14
Beng. L. Bep. 187.
See Onua Probandi. 6.
*Foshi
- That Vatandar
officiate.
. Sir Onua Probandi. 0.
:ntitled t
1. Purckasebont fide for Vat ue wilMuul
Notice.'] The anus lies on a person who claims
priority over another, on the ground that he look
D,„i„.db»Google ^1
( 1001 )
DIGEST OF CASES.
ONUS FIIOBANJJI-cohW.
with notice of an earlier security, to prove that
he had notice. The purchaser pleading absence
of notice is held strictly to proof of the payment
that being an affirmative matter; but when he has
established his good faith thus far, it devolves on
the opposite party to prove notice, or the circum
stances from which the Court may infer a
knowledge or means of knowledge of the pre-
vious transaction. Per West, J LalubHai
Surchand f. Bai Amrit...I. L. Sep. 2 Bom.
299, 1S77.
Followed in Hasha v. Ragho ..1 L. R.
0 Bom. 1S5.
2. Hundi — Payment — Limitation Act
XIV. \SS9—Act IX. of 1871, Schedll., Art. 60—
Adding Parties, ,] On and August 187a, A. K.
filed a plaint against M.H. and M. R., in which he
alleged that on 1st April 1870, M. R. had gi
a hundi for Rs. 500, for value received, to A.
that on the 27th March iS'/i, M. H. purchased
Ms hundi from A. K., promising to pay hire
Rs. 534 for it ; that M. H. gave the hundi to hi:
brother /. H. for the purpose of obtaining pay.
merit of the amount from M. ft., and that /. H.
subsequently informed the plaintiff ih;
hundi was lost. A. K. therefore prayed that the
defendants, hi. H. and M. R. might be decreed to
pay him Rs. 534 with profit and interest. M. H.
denied that he had purchased the hundi from A.
A1., who, he alleged, had given the hundi to /. H. to
get cashed. M. R. admitted that he had execut-
ed the hundi and had given it to the plaintiff for
Rs. 500 ; but he alleged that it had been present-
ed to him for payment by /. H., to whom he had
paid the amount with interest on 31st March
1871, and he produced the hundi with a receipt,
purporting to be by /. H., indorsed on it. The
trying Judge, after settlement of the issues, on
35th June 1874 added /. H. asa party defendant.
/. H. alleged that A. K. had given him the hundi
for the purpose of getting it cashed, denied the
payment by M. S., alleged the Indorsement on
the hundi to be a forgery, and pleaded limitation.
Held, that M. R. having admitted the execu-
tion of the hundi for value received, the burden
of proving the payment pleaded by him of the
amount due on it to /. H. lay on M. R. No bur-
den whatever lay on the plaintiff; the whole
weight of proof of payment and the genuineness
of the receipt was imposed by law on M. R., who
alleged the payment, and relied on the receipt
he produced.
The possession of the hundi by M. R., though
a circumstance in his favour, did not itself
ONUS PHOBANDI-wnM.
amount to proof of payment, or absolve him
from the necessity of proving that he had paid
the amount of the hundi to /. H.
Held, also, with reference to f aa of Act IX.
of 1871, that the law of limitation applicable to
the suit so far as /. H. was concerned, was Sched.
II., Art. 60, of that Act, and therefore, that if
the payment by M. R, to /. H. were not proved
to have been made within three years before
25th June 1874. the day on which /. H. was
added as a defendant, the suit as against him was
barred. Dayal Jairam v. Khatao Ladha (ia Bom.
H. C. Rep. 97) and Ckinnaswami Iyengar v.
Gopalcharry (7 Mad. H.C. Rep. 39a) dissented
from. Abdul Karim v. Manji Hansraj. West,
ropp, C.J., and N. Harridas, }., after consulting
Mehill&aA Kimball, JJ...L L. Sep. 1 Bom.
890, 1676.
8. Suit far Resumption— Auction Pur;
•haser.) Certain lands which had been let out
n putni were, on default by the putnidar in pay.
nent of rent, sold by auction under Bengal Re-
gulation VIII. of 1819, and purchased by At.,
'ho granted them in putni to the plaintiff. In a
ait for resumption, on the allegation that the
defendants were in possession of a portion of the
land as invalid takhiraj by withholding payment
if the mil rent thereof after 1793, the defence
was that the lands in dispute were valid rent-free
lands existing as Such before I79O : —
Held, that, on the grounds of the decision of
the Privy Council in Harikar Mukopadkya v.
Madab Chandra Babu (8 Bengal L. Rep. 565; S,
". 14 Moo. I. A. 15a), the principle that the onus
on the plaintiff to show that the lands are mal
lands applies to cases where the plaintiff, as in the
present case, is the representative of an auction
purchaser. Arfunessa 1. Peary Moulin Moo-
kerjee. Clover and Hitter, JJ...I. L. B*p. 1
Cftl. 878, 1876.
4. Partition— Self-Acquisition — Suit
Hindu Widow for Letters of Administration to
Estate af Deceased Husband.] One A*. C, a Hindu,
died in 1876 intestate and without issue, and his
widow, claming to be the only legal personal
tpresentative of the deceased, presented a
;tition praying that letters of administration
ight be granted to her. To this application
a caveat was lodged by a person claiming the
whole family property as an undivided second-
cousin of the deceased, and sole survivi ng member
of the family. The widow alleged that the father
of the deceased and the father of the ca
by Google
DIGEST OF CASES.
ONUS PROBANDI—
. ONUS PROBAND!-
divided, and that the whole of the property left j was barred by limitation, as they, the defer
by her husband was the self-acquisition of his dants, had been in adverse possession there*
father. The Court of first instance found against for upwards of ten years. It appeared that the
the division and self-acquisition, throwing the
burden of proof of each question entirely on
the party asserting the facts, vie., the widow, the
plaintiff. On appeal it was contended for the
appellant (the plaintiff) that the onus on the
plaintiff was sufficiently discharged when it was
shown that the two branches of the family traded
.separately, and that certain items of property
were acquired in the names of members of the
branch of the family to which the plaintiff's bus.
band belonged, and that it then rested with the
other side to show that there were joint funds
from which the purchase could havebeen made.
Held, in accordance with (he view of the Judi-
cial Committee of the Privy Council in Dhutm
Das Paitday v. Afussamat Shama Soondri Dibiak
(3 Moo. I. A 810, 340 ; S. C. 5 W, R., P. C.
and the observations of Couch, C. J., in Tc
Chundtr Tatadar v. Joodhcsttr Ckunder Kondoo
(19 W. Rep. 178) that such content!
be maintained. Vedavalli v. Naravana.
/(tiffs and liusteed, J J ...I. L. Rap. 3 Had. 18,
1877.
0. Vatandar Joshi.] The burden of
proving that the Vatandar Joshi of a village
not entitled to officiate and take fees in tl
families of any particular caste, lies, upon tl
persons asserting exemption. Raja Skivapa v.
KrishnAPPA. Mevilt and Kemball, JJ...I. L.
Hep. 3 Bom. 232, 1878.
S. C. under Disturbance of Office. 2.
8. Mortgage — Htdrmfiion — Burden of
Proof of Ownership- Act 1, of \%11,%liO— Adverse
Possession.] The plant iffs, alleging that their an-
cestor had in 1 842 mortgaged certain villages to
the ancestors of the defendants for Rs. 2,500,
claimed possession of 1 5 biswas of the villages on
the ground that the mortgage debt had been satis-
fied by the usufruct. The defendants alleged
that as to 10 biswas of each village, the plain-
tiffs'ancestors had sold them in 1842 to their (the
defendants') ancestor for Rs. 1,250; and as to
the remaining to biswas of each village, that
their said ancestors had been put in possession
(hereof by the plaintiffs' ancestor by way of
mortgage, to secure a sum of Rs. 14,000; that
thai sum had not
usufruct of those 1
of the plaintiffs to
plaintiffs' said ancestor died on the 5th of Sep-
tember i860, up to which time his name had
been recorded as lambardar and proprietor of
the villages. On the aist of October i860, the
general agent of the defendants objected to the
of the plaintiffs' ancestor's heirs being
recorded as proprietors, asserting the title of
the defendants under the sale and mortgage :
and on the 26th April [S61, notwithstanding the
ippositlon of the plaintiffs, the names of the
defendants were recorded as lambardars. Tbe
present suit was instituted on the 19th of April
1873-
Heldby Pearson,].— As regards the 10-biswa
share said to have been sold by the plaintiffs to
the defendants' ancestor, and which was in the
defendants' possession, the burden of proving
that the defendants were not the owners thereof
lay on the plaintiffs (§ 110 of the Evidence Act
I. of 1872) ; and that the plaintiffs were preclu-
ded from recovering possession of that portion
of the claimed property, by the fact that the
defendants had held adverse possession of it
for more than twelve years, for the adverse pos-
session of the defendants commenced from the
time when their title as owners by purchase was
openly set up in tbe face of the heirs of the
plaintiffs' ancestor, on tbe 21st of October
18601 and not merely from the 19th of April
t86t,the date of the order for the recognition
and registration of their title.
As to the 10-biswa share admitted by the
defendants to be mortgaged, the allegation on
which the suit was brought, vim., that the entire
property was mortgaged for Rs. 2,500, had
broken down j and as it was for the plaintiffs to
prove their right of re-entry, and they had failed
to do so, they were not entitled to re-entry on
any other terms than those stated by the de-
fendants.
By Turner, J— The defendants and their
ancestor having been in possession of tbe
property for upwards of twelve years, tbe
presumption they were in possession as pro-
prietors must be rebutted by the plaintiffs,
who must otherwise fail. In respect of one
moiety of the property the presumption was
rebutted by the admission and proof that the
and that the claim defendants' possession was that of mortga-
of the property sold ■ gees. But in respect of the other moiety which
Di,iii,.db»Goo<^le
( 1065 )
DIGEST OF CASES.
{ 1086 >
ONUS PBOBAWDI-cflnM.
they claimed to hold as purchasers, the plain-
tiffs were bound to produce evidence to rebut
the presumption arising out of possession, or
must fail. The circumstance that one moiety
of the property was admittedly held on mort.
gage might lend corroboration to the evidence,
if there was any, that the defendants' ancestor
held the entire property as mortgagee, but by
itself it would not relieve the plaintiffs from the
burden of rebutting the presumption arising
for the defendants' possession.
As to the property admittedly under mort-
gage, the burden of proof lay on the defend-
ants, who alleged that the debt was Rs. 14,000,
and that a large balance was still owing. And
though the plaintiffs had not proved that the
whole estate was. mortgaged, yet that fact did
not disentitle them altogether to relief, for if a
plaintiff fails to prove his whole claim, he may
nevertheless obtain such relief as falls fairly
within the purview of his claim. The plaintiffs,
therefore, were entitled to have an account taken
in this suit of what might be due on the mortgage
of the moiety of the estate, and to obtain such
relief as they might be found entitled to on the
taking of such- account.
By Stuart, C J.— Such account should extend
to the whole property ; the burden of proof lay
on the defendants. Anything like adverse pos-
session by themcould not be considered to- have
commenced till the 19th of April 1861, between
which date and that of the institution of the
suit twelve years had not elapsed.
By Sfiankte xn& Oldfield, JJ.— The burden of
proof was on the plaintiffs ; and they were not
entitled in this suit, in which their claim as
brought had not been established, to claim to
redeem the moiety admitted by the defendants
to be held on mortgage, on taking an account,
Ratan Khar *. JiwakSingh I. L.Rep.l
AIL 194, 1878.
7. ffi„du Law — Miiaistara — Mort.
gage by Father during Minority of Son,'] A
Hindu, subject to the Mitakshara law, and
foiming with his sons an undivided family,
mortgaged certain ancestral immoveable estate
during the minority of his sons. In a suit by
the mortgagee against the father and soos to re-
cover the mortgage debt "by sale of the mort.
gaged property, and out of other properties, as
well as from the person" of the father : —
Held, that the onus lay on the plaintiff toshow
for what purpose the loan was contracted, and
ONUS PBOBANDI-fon W.
that that purpose was one which justified the
father in chargfng, or which the plaintiff had at
least good ground for believing did justify the
father in charging, the sons' interests in the an-
cestral immoveable property- Bheeknakaik
ih b. Januk Singh. Jackson and White, JJ.
I. L. Bep. 2 Cal. 438, 1877.
8, Hindu Law— Suit to set aside Sate
0/ Ancestral Estate by Father during Son's Mino-
rity.1 In a suit by a son to set aside a sale of
certain property made by his father during the
plaintiff's minority, on the ground that the pro-
perty was ancestral and the sale improper, being
without the plaintiff's consent, and not justified
by necessity, it appeared that the property in
dispute originally formed part of the estate of
the plaintiff's grandfather, who divided his an-
cestral and self -acquired property with his
brother ; that on the death of the plaintiff's
grandfather his sons, the uncle and father of the
plaintiff, divided between them the property of
their father, the plaintiff's father receiving the
property in dispute as his share. The plaintiff's
family were governed by the Mitakshara law.
The sale sought to be set aside was made in
1S62, and the suit, instituted in 1874, was brought
seven or eight years after the plaintiff had
attained his majority: —
Held, that the property wasancestral property
notwithstanding the partition by the plaintiffs
father, and that the plaintiff acquired an interest
therein at his birth.
Held also, that en the principle of the decision
of the Privy Council in Girdkaree Loll v. Kanto
Lalt (i4Beng. L. Rep. 187, L. Rep- I I. A. 3*1),
the true question for consideration was, not
whether there was any legal necessity for the
sale, but whether the sale was to satisfy a debt
which if contracted by the father and left un-
paid by him, the son would, under the Hindu
law, be under an obligation to discharge. If it
was to satisfy such a debt that the property was
sold, then, according to the above Privy Council
decision, the sale was valid That decision shows
that it is only in respect of debts contracted for
an immoral purpose that the son can say that,
under Hindu law, he is not liable. The ques-
tion, therefore, which the Courts below ought to
have considered, was whether the debt for which
his property was sold to satisfy was incurred for
an immoral purpose.
Probably the question of onus in such case is
one which must be determined according to the
by Google
( 1067 )
DIGEST OF CASES.
ONUS PBOBANDI— amid.
circumstances of each case. In this case, how.
ever, the onus, under the circumstances of the
case, lay on the plaintiff to show that the debt
lo satisfy which the sale was made, was incurred
for an immoral purpose.
PerMarkby,].— "I do not mean it to be infer-
red from what I have said that a son is bound
to discharge debts that are illegal though not
immoral ; that is altogether a different question,
and not now under consideration." AdurmOn]
Devi v. Chowdhrv Sin Narain Kur. Markby
m&Prituep,]\ I. L. Bap. 8 Cal. 1,1877.
9. Evidence Act I. of 187a, §§ lol, 103,
106— Laihiraj Grant.'] In i86i, the plaintiff
brought a resumption suit against the defend-
ant's mother (under whom the defendant claim-
ed) in respect of the lands in dispute, on the
ground that she held them by an invalid
lakhiraj title. The defendant in the suit con-
tested the claim, but the plaintiff obtained a
decree that he was entitled to assess the land.
After some years the plaintiff brought the
present suit against the present defendant to
have the rent assessed, and the defendant set up
by way of plea to the jurisdiction of the Civil
Court, that the lakhiraj grant, under which the
defendant in the resumption suit claimed, was
previous to 1790; and the Court of first instance
raised the following issue — "Whether the
resumed lakhiraj was of anterior date to the 1st
of December 1700 P" : —
Held, that the objection made to the jurisdic-
tion of the Court having been raised affirma-
tively by the defendant, by a statement that the
lakhiraj grant was previous to I J90, the burden
of proving the affirmative of the issue which was
framed to meet that allegation was on the de-
fendant, Heera Lall Praiianick v. Barikun-
kissa Bibee. Garth, C. ]., and Bitch, J. ..I. L,
Bep. 8 Cal. 601 ; 1 Cal. Bep. 596, 1878.
OPINION— Evidence of— of Members of Caste
See Khoja*. 1.
RAHIMATBA1 «. HlKBAl I. L.
Bep. 3 Bom. 34.
OPINION OF ASSESSORS - Omission to
take or record — on Acquittal of Accusedi
no Ground for Revision.
Narain Diss... I, L. Bep. 1 AIL
610.
OPPBESBIVB BARGAIN.
See the Cases under Unconscionable
Bargain.
OBAL AGREEMENT.
See Limitation. 93.
Koylash Chuhder ». Bovkoonto
NATH...I. L. Bep. 8 Cal. 019.
ORAL AGREEMENT CONTRADICT-
ING WRITTEN CONBAOT— Evi-
dence of a Contemporaneous.
See Mortgage. 32.
MORAN V- MlTTU BlBEE LI*.
Bep. 9 Cat. 68.
OBAL AGBEEMENT TO RESCIND RE-
GISTERED CONTRACT.
See Incomplete Contract.
Ukedkal*. Davu...I. L.Bep.3
Bom. 047.
ORDER UNDER ACT VIII. OP 1869.
§ 364— Appeal from— Defaulting Pur-
See Appeal— Civi), 17.
ORDEB ADMITTING REVIEW Kn*.
Uty of.
Bee Review. 9.
Roy Meqhraj v. Besjov Go biro.
I. L. Hep. 1 Cal. 197.
ORDER AWARDING COMMISSION TO
ADMINISTRATOR GENEBAL,
Appeal from.
See Administrator General'* Act
II. of 1874, 5 27.
SoNASUNDARAH V. Any [NISTRATOR
General... I. L. Rep. IMAd.
148.
OBDEB CANCELLING AUCTION
SALE IN EXECUTION, ON THE
GROUND OF BALE FOR INADE-
QUATE PRICE— Suit to Set Aside.
See Civil Procedure Code, Act
VHI. of 1S79, §5 266, 267.
LUKKAIC. DARVAI...I. L.Bop.1
All. 374.
D.gmzed by G00gle
( 1008 )
DIGEST OF CASES.
OBDER IN COUNCIL OF 9th AUGUST
1866— Jurisdiction of British Consul at
Zanzibar.
Set Zanzibar.
Wagji Korji ». Tharia Topan...
X. It. Bep. 3 Bom. 58.
Offence by British Subject committed in
Zanzibar — jurisdiction of Consul and
High Court of Bombay.
See Offence committed in Foreign
Territory. 1.
Empress v. Dossaji Gulam Hu-
sein I. L. Rep. 3 Bom.
334.
ORDER FOR DELIVERY OF STOLEN
PROPERTY— Appeal from.
See Government Currency Note.
Empress o. Jogessur Mocki..X
L. Bep. 8 Cal. 879.
ORDER FOR DELIVERY OF PROFEB-
TY ALLEGED TO BE STOLEN.
See Criminal Procedure Code, Act
X. of 1872, §§ 415.419. 1. 2.
In re ANPURNABAI...I. L. Bep. 1
Bom. 630.
Empress v. NilambaR Dadu . L
L. Rep. 9 All. 376.
OBVDER FOR DEPOBIT OF SECURITY
BY PERSON ENTITLED TO CER-
TIFICATE UNDER ACT XXVII.
OF 1880— No Appeal from.
Sn Appeal— Civil 4.
MoHMOHINEEO. KHETTHrGoPAUL.
I. L. Rep. 1 Cal. 137.
ORDER DIRECTING AWARD TO BE
FILED— Appeal from.
See Appeal— CiviL 13. 13a.
Hussaini Bin b. Mohsin Kuan...
I. L. Rep. 1 All. 166.
Ramadhih v. Mahesh I. L.
Rep. 9 All. 471.
See Arbitration. 4.
Boonjad Mathocr v. Nathoo
Shahoo...L L. Rep. 3 Cal.
876.
ORDER IN EXECUTION OFDEOREE-
Appeal from.
See Appeal— Civil. 33. 38.
MURU DHARv. PURSHOTAM DAS.
L L. Rep. 2 All. 81.
ORDER IN EXECUTION OF DECREE
— tantd.
Uda Begum o. Imam-ud-Din ...I.
L. Rep. 2 All. 74.
See Appeal to the Privy Council. 3.
Palak Dhari v- Radha Parsad.
I. L. Rep. 2 All 66.
See Civil Procedure Code, Act X.
of 1877, |244.
Dalpatbhai v. Amassing. ..I. L.
Rep. 3 Bom. 683.
ORDER IN EXECUTION OF DECREE
PASSED BEFORE ACT X. OF
1877 CAME INTO FORCE — Appeal
See Appeal— CiviL 0, 20.
RuHjir Singh v.MehbrbanKoer.
I. L. Rep. 3 Cal. 663.
Thakur Prasad v. Ahsan Ali ...
I. L. Rep. 1 All. 668.
OBDER IN EXECUTION OF DECREE
ON SPECIALLY REGISTERED
BOND— Appeal from.
See Appeal-Civil. 7. 11. 12.
Bhvbub Chundek r. Golap Coo-
varry I. L. Rep. 8 Cal.
617.
Ramanand d. Bank or Bengal.
I. L. Bep. 1 All. 377,
WlLAYAT-UN-NlSSA V. WaJIB-UN-
Nissa Ibid. 588.
ORDER FIXING AMOUNT OF COURT
FEES— Appeal from.
See Court Fee». 4. 5. 6.
Chuniav. Ram dial.., I. L. Bep.
1 All. 380.
Narrayan v. Collector opTha-
ha I. L. Bep. 2 Bom.
Manohar I
BAWA...Ibid. 319.
ORDER GRANTING APPEAL TO
PRIVY COUNCIL-No Appeal from.
See Letters Patent (Calcutta) 1 868,
CI. 15. 1.
MOWLA BUKSH V. KlsHEN PERTAB
Saki I- L. Bep, 1 Cal.
103.
Diarized by Google
( 1OT1 )
DIGEST OF CASES.
( 1072 )
ORDER GRANTING) LEAVE TO PRO-
SECUTE UNDER | 41 OF ACT
IV. OF 1677— Appeal from.
See Presidency Magistrates' Act
IV. of 1877, ( 41.
Janoky Nath Roy. ..I. L. Rep.
3 Cal. 468.
ORDER PLACING PARTY ON RE-
CORD, NOT LEGAL REFRESEN-
TATIVE OF DECEASED PARTY
—Appeal from.
See Stat. 34 and SB Vict., 0. 104,
§ IB. 7,
Pogose v. Catchick-.X L. Rep.
8 CaL 708,
In the matter of Pogose Ibid
710, n.
ORDER REFUSING LEAVE TO SUE IN
FORMA PAUPERIS -Appeal from.
See Appeal— Civil. 18.
Colusv. Mahohar Das...L L.
Sep. 1 All. 745.
ORDER REFUSING TO POSTPONE
SALE IN EXECUTION — Appeal
See Stay of Execution.
Hakkoshankeh Parshad...!. L.
Rep. I Ail 178.
ORDER REFUSING TO READMIT AP-
PEAL DISMISSED UNDER % S56
OF ACT X. OF 1877-Appeal from.
See Appeal— Civil. SI.
Elaih Baksh v. MaracHoW ..I.
L. Rep. 4 Cal. 828.
ORDER REFUSING TO RE-HEAR
APPEAL HEARD EX-PARTE—
Appeal from.
5m Appeal— Civil. 88.
Ranjas v. Baijnath...I. Ii. Rep.
8 AH, 067.
ORDER REFUSING TO SET ASIDE
EX-PARTE DECREE — Appeal
from.
See Appeal— Civil. S. 19.
Lakmidasv. Ebrahim X L
Rep. S Bom. 844.
Gulab Sing v. Lachhan Das...
I, L. Rep. 1 All, 748.
ORDER REJECTING APPEAL
AGAINST REFUSAL TO REGIS-
TER— Appeal from.
See Appeal— CiviL 10.
Svud Mahomed v. Hadzj Abdul-
lah... I. L. Rep. 3 CaL 737.
ORDER REJECTING APPLICATION
TO BE DECLARED INSOLVENT
UNDER CIVIL PROCEDURE
CODE— Appeal from.
See Civil Procedure Code, Act X.
of 1877, §844.
MlIMTAZ HOSSBINC. BSIJ MoHUN.
L L. Rep. 4 CaL 888.
REMAND— Appeal from.
See Appeal to Privy Council. 5.
Tetlkv o. Jai Shankar ... L L.
Rep. 1 All. 788.
ORDER REQUIRING SECURITY
FROM GRANTEE OF CERTI-
FICATE TO COLLECT DEBTS-
Appeal from.
See Appeal— CiviL 16.
Rukmani X, L. Rep. 1 All.
S87.
ORDER RETURNING PLAINT FOR
PRESENTATION IN PROPER
COURT, AFTER ADMISSION OP
SUIT— Appeal from.
See Appeal— Civil. 9B.
Kalian Das o. Nawal Singh ...
I. L. Rep 1 AIL 830.
ORDER AND DISPOSITION.
See Insolvency. 3. 4. S.
ORDER ON RECEIVER TO SELL.
See Receiver, Property in hand*
of.
Hek Crunder v. Prankristo ...
L L. Rep. 1 CaL 408.
SENDING CASE TO MAGIS-
TRATE FOR INQUIRY INTO
OFFENCE OF GIVING FALSE
EVIDENCE.
See Criminal Procedure Code, Act
X. of 1872, f 471.8.
Reg. v- Baijoo Lall L L-
Rep. 1 CaL 46a
Denized by Google
( 1073 )
DIGEST OF CASES.
OTTI MORTGAGE.
See Kan am Mortgage.
Keshava v. Keshava I. Jj.
Rep. 3 Mad. 45.
OTTDH CTVH, COURTS ACT XXXII.
OP 1871— § 4— Finality of Decision of
Court of First Appeal con finning Decision
of Court of First instance.
S,-e Appeal to the Privy Council 2.
Thakoor Habdeo Bux v. Tha-
,Jai
9 SlNI
Rep. ILA. 178.
OUDH PROCLAMATION IN lQ&BSanad
granted by Government after Title under
—Trust.
See Act I. Of 18S9. 7.
Thakur Shere Bahadur v Tha-
KURAIN DARIAO KUAH...I. L.
Rep. SCal. 645.
Sanarf— Summary Settlement — Registered
Talukdar may be Trustee.
See Act I. of 1869. S. 6.
Widow or Shankar Sahai v. Ra-
jah Kashi Prasad. ..Ii. Rep.
4 1. A. 198 , n.
Thakoor Hardbo Bux v. Tha-
koor Jawahir Singh ...
Rep. 4 1 A. 178; I.
Rep. 3 Cal. 0S3.
OUDH PROCLAMATION IN 1808,
PARA. 8— Mitakshara Law— Summary Settle-
ment with one Member of Hindu Undivided
Family— Hindu Wilt— Act I. 0/1869, J
—Right of Alienation— Custom— Duty of Judge
in gning Evidence in Suit before himself— Self.
Acquisition-} By the 8th paragraph of the Oudh
Proclamation of 1 8s8, it was declared that C. L-
( then deceased), zemindar of Mourawan, and
other persons therein mentioned, were thci
forward the solehereditary proprietors of the land,
which they held when Oudh came under British
rule, and which form part of the subject of these
suits; and it was declared by the 9th paragraph,
that with minor exceptions the proprietary right
in the soil of the province was confiscated
British Government. C. L. had died before the
mutiny of 1 857, but G. S-, one of bis sons, was<
of those who gave assistance and support
Government.
Summary settlements of the said lands were
made with ft S. by the Government, between the
1st of April 1S58 and the 10th of October 1859,
and a talukdari sanad was granted to him on the
OUCH PROCLAMATION IN 1858,
PARA H.—contd.
nth of December 1850 before the passing of Act
by which the Government bound itself
n him and his heirs as sole proprietors
of the estate, and G. S. entered into a kabooliyal
C. S.'s name was not contained in the 2nd
Schedule annexed to the Act (I. of 1869), but
C. L.'s was.
By a document dated the 7th of February
J60, relating to property in the district of
Oonao, and by other similar documents appli-
cable to property in other districts, ft S. direct-
follows ; — " 1 have been requested by
Government to submit an application on the
subject of primogeniture, with a view that the
talooka may not be split in pieces, as I would
wish. Now, the custom that has been followed in
my family for generations past is this— that the
eldest member of the family continues to be the
bead, while the others remain obedient to him ;
but every one possesses a share in the talooka.
Under the custom of the family, the other
brothers are at liberty to have their share sepa-
rated, should they wish it. The head has no
power, under the old custom, to alienate the
estate without consulting every sharer. I, there-
fore, wish that the old custom of maintaining
the share of each shareholder should be preserved
in opposition to the one in accordance with
which one member of the family is allowed to
In suits for partition among the descendants of
C. L. and of his brother, who together constitut-
ed a Hindu joint family, governed by the Mitak-
shara law, all the property the subject of the suits
having been found to be the joint property of the
said family, it was contended on behalf of the
appellant in the first appeal that all the estates
included in the sanad to their father, G. 5., and
in the summary settlements, whether previously
joint family property or not, became the separate
self-acquired property of ft S. ; that he was the
sole malguzar thereof, and that be and his sons
were the sole beneficial owners of it ; and that
he had no power to transfer it by will or by
alien
Held, that as regarded the estates which were
exempted from confiscation, thesBiiasJ and sum-
mary settlements were a mere grant by Govern-
ment to one member of the family of property
which belonged to the family jointly, and were
not intended to enure to the sole benefit of the
b, Google
( 1075 )
DIGEST OF CASES.
( 1076 )
OTJDH PROCLAMATION IN 1888,
PARA B.—contd.
grantee, and could not of themselves affect the
rights of the family. As regarded that part of
the property granted to G. S., which, if any, was
not previously part of the family estates, it c
not be held to have been the separate set
quired property of. G. S. within the meanir
the Hindu law. It was granted as a reward for
loyalty, and for the support and assistance
rendered to British officers, — services which
could not have been rendered without the use of
funds, which must be presumed to have been
those of the joint family.
Held also, that even if any part of the property
was self-acquired by G. S-, he had, by virtue of
Act I. of 1869, acquired a permanent heritable
and transferable right in the estates to which
the suits related, being those which comprised
the villages named in the lists attached to the
kabooliyats, executed by him when the settle-
ments of the different portions of the estates
were made ; and this as regards both the
villages which were, and those, if any, which
were not previously part of the family property ;
and that G. S. had power by will or by alienation
in his lifetime to transfer the estates which, by
virtue of the Act, were not merely heritable, but
transferable, and that G. S. had transferred the
same to the family. The document of the 7th
February i860, and the other similar documents,
so far as they related to property in Oudh,
amounted to a will within the definition of \ t
of Act I. of 1869; and the declaration contained
in those documents of the wishes of C- 5, acted
upon as it was by him and the other members of
the family in his lifetime, coupled with certain
other documents, was evidence sufficient to prove
an alienation intervivos, which in G. S.'s lifetime
transferred the property fo the family to be held
by them as joint family property.
No special mode of transfer is required by
Hindu law,— even a verbal transfer is sufficient.
Sections 16 to 19 of Act I. of 1869 have no
retrospective effect.
Held also, upon the evidence, that neither by
custom, usage, contract, nor any other means,
had the property in dispute at any time become
divisible upon partition in any other manner or
in any other share than according to the rules
of the Mitalcshsra, i.e., per stirpes.
A custom is a rule which in a particular family,
or in a partfcnlar district, has from long usage
obtained the force of laiv. It must be ancient,
OTJDH PROCLAMATION IN 1859,
VARA 8, -conld.
reasonable, and certain, and, being in derogation
of the general rales of law, must be construed
strictly.
A Judge cannot, without giving evidence as a
witness, import into a case his own knowledge of
particular facts. Hukpukshaii t. Smeo Dval ..
L. Rep. 3 L A. 289.
OUDH TALOOKDARS BELIEF ACT
XXIV. OP 1970— f 10— Appeal allowed though
rented after the Prescribed Period.'] Case in
itch, having regard to exceptional circumstan-
i and exceptional legislation, an appeal to the
Commissioner of Division against a decision of a
manager appointed under the Oudh Talooidars
Relief Act, was held to have been" rightly allowed,
though preferred long after the period of six
weeks prescribed by f 10. It appeared that the
appellant in the Court below was a minor, and
incapable of exercising his right of appeal except
through the manager, who himself made the
order appealed from, and that tbe respondents
;ent appellants) had after the expiration of
lid six weeks them selves prayed for a judicial
determination of substantially the same questions
:re raised by the present appeal. Ramjis-
1. Rajah Bhagwan BAx...L.Rep. SLA.
197, 1878.
OUSTER WITHOUT AUTHOBLTT OF
THE CIVIL COURT.
See Criminal Procedars Code, Act
X. of 1873, j 630.3.
Mohesh Chunder Khan. ..I. L,
Rep. 4 CaL 417.
OUSTER OF MORTGAGE*: IN POS-
SESSION IN EXECUTION OF
DECREE AGAINST MORTGA-
GOR.
See Civil Procedure Code, Act X
of 1877, f 332.
Shafi-ud-Din v. Loch an Sing ..
I. L. Rep. 2 All. 94.
OUSTER OF SECOND BY FIRST
MORTGAGEE,
See Dispossession of Second by
First Mortgagee.
Narain Sfngh v- Shim boo Singh.
L. Rep. 4 L A. IS.
D,gltlzed by G00gle
( 1077 )
DIGEST OF CASES.
{ 1078 )
OWNERSHIP OF SITE OF HOAH-Pre-
sumplion.1 There is nothing in (his country
which prevents the operation of the rule of law,
that where a road has been for many years the
boundary between two properties, and there is
no evidence that the owner of either property
gave up the whole of the land necessary for it,
the site of the road must be presumed to belong
to the adjoining proprietors, half to one and half
to the other, up to the middle of the road. Mo-
baruck Shah b. Toofany. Garth, C- J., and
McDonnell,] I. Ir. Bop. 4 Cal.
206 ; 3 Cal. Rep. 446,
1878.
OWNERSHIP IN SOU, WHEN GRANT-
ED BY SAN AD.
See Construction of Sanad. 1.
Ravji ». Dadaji ...I. L. Rep. 1
Rom. 533
T AND ARAM.
See Helmut. 1.
Rajah Muttu Raman no a p. Pe-
manayagum Pit,tAi...L.Rep.
1 1. A. SOS.
PARDANASHIN WOMAN- %i(o/-
to be examined on Commission.' A pardanaskin
woman summoned as a witness in a criminal
case, has a right to be exempted from personal
attendance at Court, and to 'be examine
commission. In the matter of the Petition of
HtlRRO Soondry Chowdbrain...-4iWi> and
Broughton, JJ X. L. Rep. 4 Cal. SO;
3 Cal. Rep. 93, 1873.
2. Deed by— Proof .1 Where a parda-
naskin lady, living apart from her relations and
natural advisers, makes a deed of sale or gift
in favour of a person who on some occasions
has acted as her man of business, the strongest
and most satisfactory proof must be given, by
the person who claims under such a sale or gift,
that the transaction was a real and bond fide
one,, and fully understood by the lady whose
property is dealt with. Tacoordeen Tewarrv
e. Nawab Syed Ali Hossein Khan ..L. Bep.
1 I. A. 1S9 ; 13 Ben g. L. Rep. 427 ; HI W.
R. 340, 1374.
S. C under Betting aelde Deed*.
8. Execution of Documents.'] It is
incumbent on the Court, when dealing with the
disposition of property by apardanashin woman,
to be satisfied that the transaction was explain-
ed to her, and that she knew what she was
70
PARDANASHIN WOMAN- rontd.
doing i and especially so in a case where, without
any legal assistance, for no consideration, and
without any equivalent, she executes a docu-
ment which deprives her of all her property.
The ordinary presumption that if a person of
competent capacity signs a deed he understands
the instrument to which he has affixed his name,
does not arise in the case of a pardanashin
woman who has no legal assistance. The deci-
sion of the High Court, that the endowment
created by the document was not of such a
public character as would sustain a suit under
Act XX. of 1863, not dissented from. Ashoar
Alih. Delroos Banoo Begum I, L. Hap.
3 Cal. 324, 1877, F. C.
On appeal from 15 Beag. J,.
Rep. 167.
PARDON— Illegal Tender, of— to Accused
Person — Evidence given on.
See Evidence. 2, 8.
Reg. v. Hanmanta.,.1. L, Rep.
1 Bom. 610.
Empress v. Asghar Ali I. L.
Bep. 2 All. 280.
PAROL EVIDENCE — Consideration —to
show that there was no Consideration for
Written Agreement — or that Considera-
tion was different from that stated.
' See Evidence. 20.
HUKUMCHUND V. HlRAI.AL . I. L.
Rep. 3 Bom. 691.
Of Contemporaneous Oral Agreement In-
consistent with Written Contract.
See Evidence. 19.
Banapa «. Sundardas I. Xi.
- To prove Payment of a Bond containing a
Stipulation that Receipts or Endorsement
should be the only Evidence,
See Bond to secure Balance of
Account.
NaRRAYEN V- MOTILAL I. L.
Rap. 1 Bom. 40.
-Of Payment where Receipt Inadmissible
because Unregistered.
See Registration. 92.
Damp Sing v. Durga Prasad.;,
I. L. Rep. 1 All. 442.
DiQ-xized by Google
( 1079 )
DIGEST OF CASES.
( 10W )
PAROL REVOCATION OF HINDD | PASTIES TO SUIT- -amid.
WILL.
See Act I. of 1868, f 82, CI. 4.
Maharajah Pertab Narain
Singh v. Maharanee Su-
bhco K00ER...L. Kep. 4 I.
A, 228 ; I. L. Rep. 8 Cal.
636.
F ARSIS— Separate Property of Parsi Wife.
See Harried Woman'! Separate
Property. 1.
Dhanjibhai v. Nayazbai...!. L
Rep. a Bom. 76.
PARSI SUCCESSION ACT.
See Act XXI. of 1865.
PARTIES TO APPEAL — Power of Ap-
pellate Court to add
See Power of Appellate Court.
Ranjit Singh e. Sheo Prasad
Ram I. L. Rep. 2 All.
487.
PARTIES TO SUIT— For Abuse.
See Parties to Suit. 6.
— — Advocate General.
See Suit for Management of a
Religious Endowment.
Pahchcowrfe Mull e. Cu
ROOLALL...I. L. Rep SCal.
663.
— On Bill of Exchange or Ilutidi,
See Procedure— Civil. 1.
Basaht Rah ». Kolahai.,.,1. L.
Sep. 1 All. 892.
- By Co-Sharer for Separate Share of Rent
— Colluding Co-Sharers.
See Co Sharers of Land. 3.
JaDU DASS IT. SUTHERLAND. .L
L. Rep. 4 CaL 666.
- By a Creditor of Deceased Mahomedan to
enforce his Claim against the Estate.
See Mahomedan Law. 1.
Assam at hem Nbssa Bibj v. Rot
Luchi
.. X. L.
To Cancel Plaintiff's Signature to Compo-
sition Deed.
See Parties to Suit. 2.
Computation of Period of Limitation a
Added.
See Assignment of Mortgage.
Ganpat v. Adarji.,.1. L. Rep. 3
Bom. 313.
See Onua Probandi. 2.
Abdul b. Manji I. L. Rep. 1
Bom. 29D.
See Co-Sharers of Land. 4.
BOYDONATK *, GftlSH CHUNDER...
I. L. Rep. 3 CaL 26.
Rep. 4 CaL 142.
— For Defamation.
Sec Parties to Suit. 6.
— Joinder of.
See Civil Procedure Code, Act X.
of 1877, i 32.
Mahomed Baosha ». Nicot,
Fleming & Co 1 L. Rap.
4 Cal. 866.
— For Maintenance by 11 legitimate Son of
Hindu.
See Hindu Law— Maintenance] el
Illegitimate Son. 4.
Naravan K. LAVING...L Ik Rep.
S Bom. 14a
■ For Management of Religious Endowment
— Advocate-General.
See Suit for Management of Reli-
gious Endowment.
Panchcowrie Mull v. Chumboo-
lall L L. Rep. 8 CaL
568.
On Mortgage.
See Parties to Suit. 1. 6.
— For Partition.
See Parties to Suit 8. 4.
- Partition Suit— Cultivating Ryots sought
to be ejected should not be made.
See Partition Suit. 1.
Saminda Pillai b- Subka Reddiar.
L L. Sep. 1 Mad. 333.
Suit by One of several Co-Sharers of Land
to eject Tenant.
See Right of Occupancy. S.
BollveSatbe v. Akram Ally...
I. L. Rep. 4 Cal. 861.
D.gmzed by GoOgle
( loai )
DIGEST OF CASES.
PAILTIKS TO BVTT—contd.
Set Oo-Inamdara,
Krishnarav v. Covin n L|L,
Bep. S Bom. 36, n.
— Suit by Some of several Co-Sharers of
Land for Enhancement of Rent.
See Enhancement of Rent. 7. 8.
Doorga Pkosad Mvtee v. Joy-
narain Hazrah.-I. L. Bep.
S Oat. 474.
Balaji o. Gopal I. L. Bep. 8
Bom. 38.
See Co-Sharei* of Land. 4.
BoYDONATH V- GRISH CKUNDER...
I. L. Bep. 8 Cal. 36.
Suit by One of several Co-Sharers of Land
for a Kabuliyat.
Sec Co- Sharer* of Land. 1.
Doorga Pkosad v. jov Narain...
1. 1. Bep. 4 CaL 36.
— — Suit by Co-Sharers of Land for Separate
Share of Rent
Set Civil Procedure Code, Act X. of
1877, § 33. 3.
Shib Gofal v. BaldevSahai...
I. L. Bep. 3 All. 364.
See Oo Sharer* of Land, 1. 3. 8.
Doorga Prosad v. Jor Narain...
L L. Bep. 4 Cal. 86.
Aha mucin v. Grisb Chunder...
Ibid. 300.
Jaou Dass ». Sutherland, ..Ibid.
066.
See Landlord and Tenant. 4.
Ahuoda t. Kallv„,L L. Bep. 4
CaL 88.
For Specific Share by Member of Undivid-
ed Hindu Family.
See Parties to Suit. 4.
1,^— To tnforct a Mortgage.'] To a suit to
enforce the hypothecation of property mortgaged,
by a sale thereof, it is advisable for the creditor,
though it is not incumbent on him, to make all
subsequent incumbrancers parties, and if such
subsequent incumbrancers should apply to be
made parties, the Court should admit them, under
5 73 of Act VIII. of 1859; and in paising a dect
in such a suit to which the subsequent incu
brancers are made parties, the Court ought
PABTEBS TO SUlT-contd.
give subsequent incumbrancers an opportunity to
come in and redeem the prior incumbrance. Per
Turner, $., in Khub Chand v. Kalian Das...I.
L. Bep. 1 All. 340, p. 346, 1876.
S. C. under Sale in Execution of
Decree. 4.
3- Suit to cancel Plaintiffs' Signature to
Composition Deed.] In a suit by the plaintiffs
praying that the signatures of their respective
agents and managers to a certain deed, purport-
ing to be a composition deed, whereby the pro.
perty of the defendants was assigned to trustees
for the benefit of the creditors of the defendants.
might be cancelled, on the ground that the said
signatures had been procured by misrepresenta-
tion, and that it might be declared that the said
deed was not binding on'tht plaintiffs: —
Htld, that the creditors of the defendants other
than the plaintiffs were not necessary parties to
the suit, the object of which was not to impeach
the deed so far as other creditors were concerned.
The property assigned by the deed would remain
with the trustees for their benefit. The Orien-
tal Bank Corporation *. John Fleming. Sar-
gent, J.. ..1. L. Bep. 3 Bom. 343-363, 1878.
8. Partition Suit—Hindu law.] In a
suit, after the father's death, for partition between
brothers, the sons of different wives who are alive
at the time when such suit is instituted, such
are entitled to share with their sons.
Colly Churn Muttict v. yanova Dosset (1 Ind.
Jur., N. S., 184) followed. Torit Bhoosun
Bohnerjeb e- Tarafrosonno Bonnerjee.
Ponti/ex, J I. L, Bep. 4 CaL 756; 4 Cal.
Rep. 191,1878.
5« Hindu Law— Partition, 4.
JUGMOHI.'No SaRADAHOYBE ..I.
L. Bep. 3 Cal. 148.
4. Hindu Lav>—Mitakskara—Undivid.
ed Family — Suit by one Member for Specific
Share.] To a suit by one member of a joint
Hindu family, governed by the Milakshara law
for a specific share of the joint family property,
all the members of the family are necessary
parties. Natun; Mahton v. Munkaj Mahton.
Garth, C. J., and Milter, J...I. L. Bep. 3 Cal.
149, 1876,
6. Mortgage — Suit to enforce.] It
is not incumbent on a registered mortgagee
seeking to enforce his lien, lo search for sub.
D,„i„.db»Googlc
(
)
DIGEST OF CASES.
( 10W )
PARTIES TO BVrr-cantd.
sequent incumbrancers or purchasers, in order
to make them parties to the suit. It lies
such subsequent incumbrancers or purchasers
to inform him of the interest they have
quired, and in the absence of notice he would
properly proceed against the person prim&facit
liable to him. Mere registration of such subse-
quent sale or incumbrance will not supply the
place of notice. S. B, Shringapure v. S. B.
Pbthb. West and Pinhey, JJ...I. L. Rep. 3
Bom. 663, 1878.
6. Act VIII. of 1859, J 73— Slander-
Abuse— Parties.] The plaintiff sued the defend.
ant for damages for loss of reputation caused
by the false, abusive and defamatory statements
made by the defendant concerning the plaintiffs
The Court of first instance, regarding the
as defective for want of parties, added the
plaintiff's sister as a co-plaintiff under { 73 of
Act VIII. of 1859.
Held, that assuming the suit to be mair
able, the right of suit was in the plaintiffs
sister, and that the defect in the suit, as 01
ally instituted, was not one which could be
remedied under Act VIII. of 1859, , 73. Wher
there is no right of suit in the plaintiff, the sui
should be dismissed. Subbaivar «. Kristnai-
var. Morgan, C.J-, and /tun, J ...I. L. Rep.
1 Had. 393, 1878.
7, — Act.VW. of 1859, \ 13-Adding
Parties.] Under § 73 of Act VIII. of 1859,
person is not liable to be added as a party
the suit, though he " may be likely to be effected
by the result," unless he is also entitled t
claims some interest in, the subject-matter of
the suit.
Where, therefore, the plaintiff instituted a
suit against A. , for damages for breach of a
contract for the delivery of wheat, and subse-
quently applied to amend bis plaint by adding
B. as a party defendant to the suit, on tb<
ground that since the institution of the suit hi
had discovered that B. was a partner of A., and
B. and A. both denied the partnership, and
alleged that the contracts were entered into by
A. as agent and manager of B. :—
Held, that B. could not be made a party to
the suit. If the plaintiff could make out a
partnership between A. and B., then, by virtue
of the provisions of the Contract Act, he would
be able to recover against A. If, on the other
PARTIES TO SVXT-contd.
hand, A. was only an agent, then the plaintiff,
having elected to sue the agent, had no right
to be allowed to join B. as principal ; that
would be a different suit. Koeclbr *. Prosoh-
MO Coohak CkaTTerjee. Kennedy, J... I. L.
Rep. 8 Cal. 479, 1877.
8. Joinder of Parties— Appeal— Limi-
tation— Procedure."] It is competent to an
Appellate Court to exercise its discretion in
allowing a party to be added to the record after
the period prescribed for the admission of an
appeal has elapsed. The Court of Wards ».
Gaya Pbrsad. Turner and Sfiankie, ]]...!. I*.
Rep. 3 All. 107, 1879.
S. C. under Sale in Execution of
Decree. 16.
9. Non-Joinder of Parties— Partner*—
Amendment of Plaint.] A suit was instituted
by one only of the partners of a firm in respect
of a cause of action which had accrued to all
jointly. Notwithstanding that objection to the
non-joinder of the other partners was duly
taken, the plaintiff contented himself with
putting in a petition on behalf of the other
partners intimating their willingness that the
suit should proceed in the sole name of the
plaintiff, instead of applying to the Court to add
the others partners as plaintiffs. In appeal, the
High Court allowed the objection and dismissed
the suit, refusing under the circumstances to
allow the plaint to be amended by adding the
other partners. Dular Chand «. Balkan Das.
Pearson and Turner, J] I. L. Rep. 1 AIL
46S, 1877.
PARTITION.
See Hindu Law- -Partition.
- Adopted Son — Share of — on.
See Hindu Law— Partition. 11.
Raghubanand t. Sadhu.,.1. I..
Rep. 4 Cal. 436.
- Of Ancestral Property does r
I alter il
See Onus Probandi. 8.
Aourmohi v. Chowdhrv Sib Na-
rain. .. I. L. Rep. 8 Cal. 1.
- Burden of Proof of.
See Onus Proband], 4.
Vedavalu v. Naravana...!. L.
Diarize* by Google
(
DIGEST OF CASES.
( 1086 )
PABTiriON— tout*
Co-Widows— Right of One of Two Co.
Widows to enforce.
Set Hindu Law — Inheritance —
Widow. 2,
Sri Gajapathi Nilamani b. Sr[
Gajapathi Radhaiiani...L.
Bep. 4 I. A. 212 ; I. L.
Bep. 1 Had. 390.
Decree for — Execution of.
See Execution of Decree. 11,
Rajkoomaree*. GopalChunder.
I. L. Kep.SCaL 612.
Sec Decree for Partition.
Sheikh Khoorshid o. Nubbee
Fatiha...I. L. Bop. S Cal.
661.
Evidence of.
See Compromise. 3.
Pitam Singh *. Ujagar Singh...
L L. Uep- 1 All. 661.
Evidence of.
Sec Hindu Law— Partition. 6. 6.
AllBlKA DAT 0. LuKHMANI KlJAR.
I. L. Bep. 1 All. 437.
Prag Das v. Hari Kishen.,.1. L.
Bep. 1 AIL 603.
Impartible Zemindary — Transfer by Deed
of Family Arrangement to Younger Bro-
thers of Undivided Family— Succession
of Widow thereto as Separate Estate.
See Hindu Law — Separate Pro-
Periasami v. Periasahi L.
Bep. 6 1. A. 61; S.C.LL
Bep. 1 Had. 313.
— — Limitation to Suit for.
See Hindu Law— Partition. 9.
RunjeetSinghh. Kooer Gujraj
Singh... L. Bep. 1 L A. 9.
See Prescription. 1.
SlTARAH V. KhAMDERAV.-.L L.
Bep. 1 Bom. 386.
•— — Mother's Right to Share on— between Sons
after Father's Death.
See Parties to Suit. 2.
Torit Bhousun u. Taraproson-
»o...L L. Bep. 4 CaL 7S6.
PABriTION— emtd.
See Hindu Law— Maintenance* of
Widow. 3.
Lakshhan v. Satyabhamabai...
I. L. Bep. 2 Bom. 494.
Mother's Share on — Deceased Son.
See Hinds Law— Partition. 4.
JUGHOHUN ffl. SARODAMOVEE ...I,
L. Bep. 3 Cal. 149.
Among Narwadars.
See Narwadari Village,
Veribhai v. Raghabhai X, It.
Bep. 1 Bom. 236.
Parties to Suit for.
See Parties to Suit. 3. 4.
ToritBhoosun p.Taraprosonno.
L L. Bep. 4 Cal. 766.
Nathuniv. Muhraj...I. L. Bep.
2 CaL 149.
See Partition Suit.
Of Pension in Lieu of Saranjam.
See Saranjam.
Rahchahdra v. Lakshhan. ..X.
L. Bep. 2 Bom. 346.
Of Peojak Dalan.
See Execution of Decree. 11.
Rajcooharee v. GopalChunder.
L L. Bep. 8 Cal. 614.
Right to Demand — when there has been no —
for Six or Seven Generations.
See Hindu Law— Partition. 8.
Tkakur Durriao Singh e. Tha-
kur Da vi Singh L. Bep.
1 L A. 1,
Right of Purchaser at Sale in Execution of
Decree against Member of Undivided
Hindu Family to enforce.
See Hindu Law— Undivided Fa-
mily. 3.
Dbendoyal Lals. Jugdeep Na-
rain Singh... L.Bep.4LA.
247; I. L Bep. 3 CaL 198.
Right of Sons to compel— of Ancestral Im-
moveable Property.
See Hindu Law— Partition. 2. 13.
Kali Parshadv. Rah Charan ...
I. L. Bep.l All. 189.
Sura) Bunsi Koers. Skro Per.
shad Singh, ..L. Bep. 6 L
A. 88, 100-
D.gmzed by GoOgle
DIGEST OF CASES.
( 1088 )
PARTITION- for
Riglit of Widow
See Hindu Law— Partition. 8.
SOUDAUONY v- JoCBSH CHUNDEB.
LLStp. 8 Cat 262.
■— -Of Saran/am.
Set Saranjam,
RaMCHANDKA t. LAKSHMAN...I. L.
Rep. 2 Bom. 346.
■ Share of an Adopted Son of a Natural Son
on— in a Mltakshara Family.
Set Hindu Law— Partition. It.
Raokubanand b. Sadhu Churn.
I. L. Rep. 4 OaL 438.
— Suit for Share, not in Form, for Partition-
Decree of Share.
See Hindu Law— Partition. 19.
Jov Narain Giri v. Girish Chun-
uer Mvti ..I. L. Sep. 4 CaL
434;!,. Rep. 6 1. A. 228.
— — Without Metes and Bounds— Intention to
See Hindu Law—Partition. 6. 14.
Baboo Doorca Pershad*. Mus-
3UHAT KuNDUN KOOWAR.
L. Rep- 1 I- A. SB.
Chidhahbaram Ckettiar b.
Gaurf Packer...!* Rep. 6
I. A. 177; I. L.Bep.
S Had. 83.
PARTITION BY BUTWARA.
See Butwara.
See Mortgage. 9.
BVJNATH LALL V. RAMOODKIN
Chowdrv...L. Rep. 1. I. A.
106.
See Partition by the Revenue Au-
thorities.
PARTITION BY THR REVENTJE ATJ-
THORITIES— Regulation XIX. of 1814 —
Co-Sharers of Undivided Estate— Assignee of
Co-Sharer, Rights of — Jurisdiction.'] The
plaintiffs and defendants were co-sharere of an
undivided estate. The plaintiffs, besides their
shares as part owners, held some of the estate
as tenants and some as purchasers from some
of their co-shareis in the estate. The whole
estate was partitioned under Reg. XIX. of 1814,
and on such partition the lands which the plain-
tiffs held ai tenants and as purchasers were
PARTITION BY THR SK VKHTTS
AUTHORITIES —amtd.
allotted to the appellants, who were sharers
other than those from whom the plaintiffs I
or had purchased. In a suit by the plaintiffs for
a declaration of their title to those lands, and for
a re -distribution of the shares ; —
Held, that the Civil Courts had no jurisdic-
tion to interfere with the partition made hy the
Held also, that the principle laid down in
Byjnath Lull v. Famoodeen Ckowdry (21 W.
Rep. 333, S. C L. Rep. t I. A. 106) that one
co-sharer in a joint and undivided estate cannot
deal with his share so as to affect the interests
of other sharers, and that persons taking any
security from one co-sharer do so subject to
the right of the others to enforce partition :
and that a mortgagee who takes such a secu-
rity in the share of one co-sharer, who has do
privity of contract with the other co-sharers,
would have no recourse against the lands allot-
! ted to such co-sharers, but must pursue his
remedy against the lands allotted to the mort-
gagor, is applicable to all assignees of any
J interest whatever, and governed this case ; and
; that the plaintiffs' remedy lay, therefore, not
'against the appellants, but against the plain.
tiffs' assignors. Sharat Ckunder Burmos*.
IhuROOBINDoBurmon. Mitterund tfaelean, ]}.
L L. Rep. 4 CaL 610, 1878.
PARTITION DEED — Of Immoveable Pro.
perty — Registration of.
See Registration. 9.
Shankar v. Vishnu. -L L. Rep.
II
.67.
Secondary Evidence of Unregistered.
See Evidence. 18,
Kachubhai v. Krishna bhai. L
L. Rep. S Bom.. 630.
PARTITION BUTT— Parties to.
See Fartiea to Buit. 3. 4.
Torit Bhoosuh v. Tarapro-
sonno I. L. Rep. 4 CaL
7fi6.
Nathuni v. Muneaj...I. L. Rep.
2 Cal. 149.
— - Right of Co-Sharer — to enforce Decree
See Decree for Partition.
Sheikh Khoorshed H ossein i.
Nubbes Fatima.-.X. L. Rep.
3 CaL 651.
Diarized by Google
DIGEST OF CASES.
( 1090 )
PARTITION SUXX—eontd.
Parlies to Suit—Multi/ariousness— Eject-
jnent of Cultivating Ryots.'] In a suit (or parti-
tion of the joint Inam lands of a Hindu family,
it was not disputed that the plaintiffs were en.
titled to the share (hey claimed, but the plaintiffs,
alleging that the lands had been unauthorized^
leased on a perpetual lease by some of the
sharers to a number of cultivating ryots, joined
such ryots as defendants, seeking by their
to eject them. The ryot defendants pleaded
that separate suits should have been brought
against them, as the lands had been reclaimed
by their ancestors, and had been in the posses-
sion of the defendants and their forefathers
since, and that they had acquired a permanent
right of occupancy: —
Held, that though in a suit for partition and
to recover shares in family property improperly
alienated, it is proper to join the alienees
defendants, because every one of such alienees
has an interest in the question whether the
plaintiff is entitled to a share, yet, as a general
rule, a suit for partition of family property is of
little interest to the ryots, and the question of
ejecting them is quite a distinct question in the
case of each ryot \ and therefore that the ryots
had been improperly joined as defendants.
Even if it appeared that the ryots bad not a
permanent tenure, they could not be ejected
except upon notice at the end of the Fash,
as long as they paid the rent due on the lands.
Saminda Pillai v- Subba Rkddiar. Kin-
dersley and Tun-ant, J] L L. Rep. 1 Mad.
333, 1S77.
PARTNERSHIP.
Set Illegal Contract.
Gaum Shankarv. Mumtaz Ali
Khan.I. L. Rep. 3 All. 411.
See Company. 1.
Bhikaji v. Bapu I. L. Rep- 1
Bom. 660.
- Books — Production of.
See Inspection. 1.
Haji Jakasia c. Haji Casim...
I. L. Rep. 1 Bom. 406.
— Dissolution of — Right of Copartners to
Set Compensation tor Ion of
Commission.
PARTNERSHIP— contd.
COWASJI NanabHoyh. LALLUBHOY
Vullubhoy.,,8 Bom. H. C.
Rep. 0. 0. J. SOS; I. L.
Rep. 1 Bom. 468.
Suit for Dissolution of — Jurisdiction.
See Jurisdiction. 6.
Rahasaht ». Thbruvbngadasa-
hi...L L. Rep. 1 Had. 840.
PAST COHABITATION — Not Immoral
Consideration for Contract.
See Contract. 4.
Man Kuar v. J a sod ha Kuar...
L L. Rep. 1 AU. 478.
See Inamdar. 2.
VlSHVANATH «. MAHADAJI...I. L.
Rep. 8 Bom. 147.
Village— Right to Graze Cattle.
See Right of Free Pasturage.
Collector op Thana r. Bal Pa-
til I. L Rep. 3 Bom,
110.
PAT MARRIAGE.
See Hindu Law — Inheritance —
Illegitimate Son. 4. 6.
Ram o. Govind L L, Rep. 1
Bom. 07.
Naravah «. Laving. ..I. L. Hep.
9 Bom. 14a
See Penal Code, § 404.
Reg. o. Sahbhu.,,1. L. Rep. 1
Bom. 847.
PATENT— Infringement of.
See Infringement of Patent.
Sheen v. Johnson... I. L. Rep.
3 Alt 368.
— Infringement of— Limitation to Suit on
account of Profits obtained by.
See Limitation. SO.
KlNMOND V. JACKSON... L L. Rep.
3 Cal. 17.
PATENT AMBIGUITY.
See Registration. 28.
Raju*. Kkishnarar...I. L. Rep.
3 Bom. 273.
Diarized by Google
DIGEST OF CASES.
(
)
PATIL- Eligibility for Office of— Suit (or De-
ctaration of.
SwPeneione Act XXXII. of 1871.
4.
GuRUSHIDGAVDA B. RuDRAI
dati L L. B«p. 1 Bom.
681
See Declaratory Decree. 19. 20.
Nindan Gavda v. Malan Gavda.
I. L Rep. I Bom. 083, n.
Babaji e. Nana I. L. Bop. 1
Bom. S8S.
FATILKI WAT AN— Right to Share in— and
officiate in Rotation.
See Declaratory Decree. 19. SO.
Nindan Gavda ■». Malan Gavda.
I, L. Sep. 1 Bom. 033.
Babaji «. Nana 1. L. Rep. 1
Bom. 630.
PATTA — Suit to compel Acceptance of —
" Landholder."
See Jffadrae Act VIH. of I860, § 1.
1.
ZlNULABDtN RoWTBN «. VlJIEN
VlRAPATRBN ... I. L. Bep. 1
Had. 49.
— Suit to enforce Acceptance of— wilt tie.
SccBu.it to Enforce Acceptance of
Patta.
Kabih v. Muhammad KaDAr...I.
L. Bep. S Had.
— Suit to enforce Acceptance of — Tender of
Patta necessary.
See Hadrae Act YIH. of 1866,
,8.1.
SavadChand v. Lakshmana...!.
L. Bep. 1 Had. 40.
— — Tender of.
See Hadrae Act TOI. of 1B66, ,
9.1.
SavadChand v. Lakshmana...I.
L. Bep. 1 Had. 46.
PATTAS AND HTJCHALXAS, EX.
CHANGE OF.
Set Hadrae Act VTJX of 1865,
§4.1.
5E3HADRI AWANGAR V. SANDA'
NAU...L L. Bep. 1 Had.
146.
FATXADAB BTOT— Right of.
See Right* of Hiraedara.
Fakir Muhammad «. Tirumaia
Chariar...L L. Bop. 1 Had.
BOO.
FATTIDABI ESTATE- Right of Pre-emp-
tion of Co-Sharer.
See Pre-emption. I. 2.
Farzand Aur. Alimullah...LL-
Bep. 1 AU. 373.
Narain Singh v. Muhammad
Faruck...I. L. Bep. 1 All.
377.
PAUPER RESPONDENT— Court Ffes Art
VII. of 1870, % 16.] A pauper respondent is
not entitled to present objections at the trial of
an appeal without payment of stamp duty under
the Court Fees Act VII. of 1870. Section 16
of that Act makes no exception in favour of
pauper respondents. Babaji Hariv. Rajaraii
Ballai. West and N. Harridas, J] I. I*
Bep. 1 Bom. 76, 1876.
PAUPER SUIT.
See Petition for Leave to Bue in
forma Pauperis, and Suit in
forma Pauperis .
— Court Fees— Prerogative of the Crown.
See Civil Procedure Code, Act Till.
of 1868, § 309. 1.8.
GuNPUT POTAVA ». COLLECTOR OF
Kanaka.. , L L. Bep. 1 Bom.
7.
Gltt.zahi Lal v. Collector op
Bareillv...I. L. Bep. 1 AU.
696.
- Court Fees— Prerogative Right of Crown
to Execution Sale Proceeds of Defend-
ant's Property.
See Prerogative of the Grown.
Collector op M or ad a bad v.
Muhammad Daim Khan. ..I.
L. Bep. 3 All. 196.
-Suit Commenced as — but continued in
Ordinary Form— Computation of Limits-
See Limitation. 37.
Chundek Mokun v. Bhubon Mo.
hini.,.1. L. Bep. S CaL 389.
D.gmzed by GoOgle
( idol )
DIGEST OF CASES.
( 1094 )
PAUPEB SUIT— antd.
See Petition for Leave to 8ns in
Forma Pauperis. 1. 2.
Skinner v. Orde...I. L. Bep. 1
All. 330; L. Bep. OLA.
196.
— Suit Commenced in Ordinary Form, con.
Set Buit in Forma Pauperis. 1.
Nirkal v. Duval Nath I. L.
Bep. 2 Cal. 130.
P A Y ME HTS— Appropriation o( — Guarantee.
See Appropriation of Payments.
NichollS v. Wilson. ..I. L. Bep.
4 Cal. 600.
■ Cheque— Tender of.
See Tender. 1.
Boyle ChundSinoh*. Maulard.
I. L. Kep. 4 Cal. 572,
Parol Evidence of — where Receipt Inadmis-
sible because Unregistered.
See Begistration. 33.
Damp Singh v. Dukga Prasad...
I. L. Bep. 1 All. 442.
Parol Evidence of — contrary to Stipulation
in Bond that Receipts. or Indorsements
should be the only Evidence.
Sen Bond to secure Balance of
Account.
Nakayan v- Moiilal ...I. L. Bep.
1 Bom. 45.
Plea of— on Suit on Hundi.
See Onus Probandi. 2.
Abdul Karim v. MaN]i HansKaj.
I. L. Bep. 1 Bom. 28S.
— Stipulation in Bond as to Mode of Proof
of.
See Bond to secure Balance of
Account.
Narayan v. Mot!Lal...I. L.Rep.
1 Bom. 46.
PAYMENT INTO COUBT— Suit for Ar-
rears of Rent — Limitation.
Set Bengal Act VHX of I860, ! 31.
Rah Sunker t. Bin Chunder -I.
L. Bep. 4 CaL 714.
PAYMENT OF IN TEBEST- Revival of
Right to sue by.
See Limitation. 43. 44. 46.
Valia Tamburatti v.Vika Ravan.
I. L. Bep. 1 Mad. 838.
Tsgaraya t>. M AR1PPA ...11)1(1.204.
Hahhantlal v. Ramabhai...I. L.
Bep. 3 Bom. 108.
PAYMENT OF TIME BARBED DEBT
BY ADMINISTRATOR -GENE-
BAL.
See Time-barred Debt. 1.
Administrator.Genkral v. Haw-
kins...L L. Bep. 1 Mad.
367.
PAYMENTS BY USTJFRUCTUABY
MORTGAGEE ON ACCOUNT OF
ENHANCED BETENTJB-Suit to
recover — During Currency oE Mortgage
Tenure.
See Mortgage. 41.
NlKKAMAL «. SuiAIMAN SHEIKH
Gardner... I. L. Bop. 3 All.
183,
PEACEFUL POSSESSION.
SrrCriminal Procedure Code, Act
X 011872, §630. 3.
Mohesh Chunder Khan. ..I. L.
Bep. 4 CaL 417.
PENAL CODE— | 21— Prosecutor appointed
by Government Solicitor.
See Public Servant. 1.
Empress v. Butto Kristo Doss...
L L. Bep. 3 Cal 407.
■ § 21 — Public Servant— Municipal Corpora-
See Municpal Commissioner. 1.
Empress t. Municipal Corpora-
tion ok Calcutta...!. L.
Bep. 3 CaL 768.
all, CI. 9— Public Servant— Illegal Cra-
lijftatien.l The manager of a Court of Wards
estate paid into a bank, carrying on the trea.
D.gmzed by G00gle
DIGEST OF CASES.
( WW )
PENAL CODB-wmW.
sury business of the Gove
loney on behalf of Govcr
I of
S., Apodth
n the bank, demanded and took a reward for
bis trouble in receiving the money. O
being prosecuted and charged under % 161 of
■ the Penal Code ;-/7f/(/,thatalthough themoney
might have been paid on account of Govi
merit, it was on behalf of the bank, and no
Government, that the money was received by
the accused ; and that the poddar was a serv;
of the bank only, and not a public ser.-i
within the meaning of f 21, CI. a, of the Pei
Code. In the matter of the Petition of MoDuN
Mohl-n. Ainslie and Brougkton, J].. I. L.
Bep. 4 Cal. 376, 1878.
■ — 153.
See Defamation. 1.
Sibho Phobab Pandah I. L.
Bep. 4 Cal. 124.
5 S9—Qf*Ht* punishable viith Transport*.
tionfor Life or Imprisonment for Term of Years.}
A sentence of transportation for a period less
than life can only be passed under the provisions
of i 59 of the Penal Code, and consequently,
when an offence is punishable either with trans-
portation for life or imprisonment for a term of
years, if a sentence of transportation for a term
less than life is awarded, such term cannot
exceed the term of Imprisonment to which the
offender is liable. Reg. t. Naida.I. L. Bep.
1 AIL 43, 1870, F. B.
§§ 64, 6S.
See Criminal Procedure Code, Act
X. of 1872, i 309. 2.
Empress v. Darba.X. L. Bep.
1 All. 461.
§ 75— Previous CofeKt'on—Sentenee.] On
the 2ind of January 1878, M. was convictedj
under (( 109 and 318 of the Penal Code, of
abetting the administering to one K. of a stupe-
fying drug with intent to commit theft. In
addition to the offence of which he was convict-
ed he was charged with theft, under \ 379 of
the Penal Code. On the 29th of January 1878,
he was convicted, under ( 328 of the Penal
Code, of administering to one A. a stupefying
drug with intent to commit theft, and also,
under { 379. of theft :—
Held that, though it had been shown that M.
had, a few days before the trial of the latter
offence, been convicted, it had not been shown
S that he had been convicted of one of the offences
mentioned in ( 75 of the Penal Code, nor that
PENAL CODE-ronW.
he had been convicted of any offence before the
commission of the latter offence, and therefore
that he was not liable on conviction of the
second offence to the enhanced punishment
provided by ( 75 of the Penal Code. Empress
v. Mbgha. Turntr, )...!. L. Bep. 1 All. 887,
1878L
5 99— Right of Self-Defence of Property
against Mischief.
See Land held by Joint Owners,
Empress p. Rajcoohar Singh...
I. L. Bep. 8 Cal. 078.
§ 108, Expl. 2-4.
se* Abetment. 3.
Empress „. Trqylukho Nath
Chowdhrv I. L. Bep. 4
Cal. 366.
§ 109.
See Jurisdiction. 16a.
Empress t. Lachman Singh...
I. L. Bep. 2 All 398,
g 109— Abetment— Bigamy.
See Abetment. 9.
Empress ». Abdool Karih...L L.
Bep. 4 Cal. 10.
§ 1 16 — Abetment of Kidnapping.
See Abetment. 4.
Reg. v. Samia Kaundah...J. L.
Bep. 1 Had. 173.
§§ 141-147— Riot.
See Land held by Joint Owners,
Empress v. Rajcoomar Singh...
L L. Bep. 8 Cal. 078.
§143-
See Summary Procedure,
Empress e. Abdool Karim...I. L,
Bep. 4 Cal. 18.
§ 144-
See Summary Procedure.
Empress v. Abdool Karim . 1 L.
Bep. 4 Cal. 18.
§ 161— Acceptance of " Dasturi."
See§ 185, fijst.
Empress v. Kahpta Prasad...
I. L. Bep. 1 All. 830.
§ 165— Attempt to obtain Illegal Gratifiea.
See Attempt. 2.
v. Baldeo Sahai .. 1
L. Bep. 8 AIL 2S3.
D.gmzed by GoOgle
( 1087 )
DIGEST OF CASES.
PENAL CODE— co,tfd.
1, | 165 — t l6j — Public Servant— j
Illegal Gratification— Acceptance 0} Present.'] AT.,
a police officer employed in a Criminal Court to- .
read the diaries of cases invest igatedby the police,
and to bring up in order each case for trial with |
the accused and witnesses, after a case of theft
had been decided by the Court in which the per-
sons accused were convicted, and a sum of money,
Rs, 3, the proceeds of the theft, had been made
over to the prosecutor by order of the Court, asked
for and received from the prosecutor a portion of
that money, «'*., Re. 1, not asa motive or reward
for any of the objects described in , 161 of the
Penal Code, but as dasturi ■. —
Held, that K. was, under the circumstances,
punishable under , 165, and not under } 161, of
the Penal Code.
Per Stuart, C.J. — In determining whether the
thing received is a "valuable thing" within the
meaning of 5 165, the value must be looked at
with reference to the proportion it bears to the
money or property of which it forms a part
Empress in Kampta Prasad. Stuart, C.J., and
Spanhie, J I. L. Bep. 1 All. 530, 1877.
1 ' 73- Refusal to give Receipt for Summons. ]
A refusal to give a receipt for a summons does
not constitute an offence under { 173 of the Penal
Code. Reg. v, Kalyalin Fakir (5 Bom. H. C.
Rep. Cr. Ca. 34) followed, In the matter of
BtiOOHUNESHWAR DUTT. Markby and Mi
]] I. L. Rep. 3 Cal. 681 ; 2 Cal. Rep. 60,
1877.
-S17*.
See Criminal Procedure Code, Act
X.ofl872,§478.4.
Empress v. Sokhari.-I. I* Bep-
2 All. 400.
, J 176 — Omission to give Information to
the Police.
See Criminal Procedure Code, Act
X Of 1673, § SO. 1. S.
Empress*. Achira; Lall.. I. L
Bep. 4 Cal. 603;
Empress v. Sashi Bhusan Chuck-
rabutty Ibid. 823.
— J 188— Beng. Reg. VI. of 1819, § 6— Disobe-
dience of Order of Magistrate not to ply
Boats near Public Ferry.
See Disobedience of Order of Public
Servant.
Mltmra v. Jawahib...!. L. Rep.
1 All. 027.
PENAL CODE— contd.
SS '92. <93-
See Conviction on Several Charges.
S.
Empress v. RamesharRai ,_L L.
Bep. 1 AIL 879.
5 '93-
See Jurisdiction. 16a.
Express v. Lachman Singh. ..I.
L. Bep. 2 All. 398.
I 193— Attempt— Abetment.
See Fabricating False Evidence. 1.
Empress v. Hula. ..I. L. Bep. 3
All. 105.
|au.
See Jurisdiction. 16a.
Empress if. Lachman Singh... I.
L. Bep. a AIL 398.
1. Jail— MM Charge.] To consti-
tute the offence of making a false charge, under
§ 111 of the Penal Code, it is enough that the
false charge is made, though no prosecution
is instituted thereon. Reg. v. Subbhana Gaun-
dan. (I Mad. H. C. Rep. 30) followed. Empress
v. Abul HASAN. Turner and Spankie, JJ...I. L,
Bep. 1 AIL 497, 1877.
8. § ill— False Charge.'] Toconstitute
the offence of making a false charge under <, 11 1
of the Penal Code, it is enough that the false
charge is made, and that the charge is not pend-
ing at the time, of the offender's trial. Reg. V.
Subbhana Gaundan (1 Mad. H. C. Rep. 30)
followed. Empress v. Salik X. L. Rep. 1
AIL 087.
S ai4-
See the Cases collected under Com-
pounding Offences.
I *17— Vagueness of Charge.
See Charge. 1.
Impx. v. Baban 1 If. Bep. 9
Bom. 142.
1, § 217— Evidence that an Offence has
been committed.] It is sufficient for the purpose
of a conviction under f 117 of the Penal Code,
that the accused has knowingly disobeyed any
direction of the law as to the way in which be
is to conduct himself as a public servant, and
that he should have done this with the intention
of saving a person from legal punisbwent, and
it is not further necessary to show that in point
of fact the person so intended to he saved bad
D,gltlzed by G00gle
( 1099 )
DIGEST OF CASES.
PEKAL CODE-mi id.
committed an offence, or was justly liable to
legal punishment. A public servant charged un-
der that section is equally liable to be punished,
although the intention which he had of saving
any person from legal punishment was founded
on a mistaken belief as to that person's liability
to punishment. Empress v. Amiruddeen. y«*-
«n and Cunningham, JJ I. L. Rep. S Chi.
412 ; 1 Cal. Rep. 188, 1878.
8. %»vi—AelX.tf \%jt,\90-VUlage
Accountant — Villagt Munstjf's Pton — Dlsobe-
ditr.ct of Direction of Law.] Where a village
accountant and a village Munsiff's peon were
convicted, under § 217 of the Penal Code, of
having disobeyed the direction of law contained
in § goof Act X. of 1872, by hushing up a
charge of theft :—
Held, that the conviction was Illegal as the
accused did not bear the character which raised
the obligation under the latter section.
The direction of law mentioned in | 2170!
the Penal Code, means a positive direction of
law, such as those contained in J ( 89 and 90 of
Act X. of 1873, and cannot be made to extend
to the more general obligation by which every
subject is bound not to stifle a criminal charge.
In the matter of Rami ivihi NayAB. Innes and
Kernan, JJ I. L.Rep. 1 Mad. 386, 1877.
5 377 —Public Spring — Reservoir.'] The
words "public spring or reservoir" used in} 277
of the Penal Code do not include a public river.
The strewing branches in a public river for fish-
ing purposes held, therefore, to be no offence
under that section. Empress «. Halodhur
Faroe. Markby and Printep, JJ...I. It. Rep. 3
C«l. 388, 1877.
— §§ aga and 294— Charge should be specific.
Set Charge. 9.
Reo. v. Uphndronath Doss ..I.
It. Rep. 1. Cal. 356.
— !! 299, 300.
See Kurd or. 3.
Reg. ». Gownda.,.1. L. Rep, 1
Bom. 343.
§3°4-
See Conviction on Several Charges.
Empf
1*. Banni ...I, L Rep. 9
All. 848.
PENAL CODE-rmM.
$ 3°4 — Culpable Homicide not amounting
to Murder.] In order to a conviction under a
charge of culpable homicide not amounting to
murder, the prosecutor must prove that the as-
sault or blow which caused death, was commit.
ted or inflicted so recklessly as to show that the
offender was utterly regardless of the con-
sequences. Per Stuart, C. J., in Empress v.
Pox I. Xi. Rep.3All.B23, (334, 1879.
See a\so Culpable Homicide not
Amounting to Murder and
Murder. 3.
S. C. under Voluntarily Causing
Hart.
— 65 304 »nn 3°4«-
See Culpable Homicide.
Empress s. Kbtabdi Mundul...X.
I* Rep. 4 Cal. 784.
I. § 3040 — Culpable Homicide.] In the
course of a dispute as to the amount of hire due
to the deceased, the accused gave him a severe
push on the back, which caused the deceased
to fall from the top of the accused's steps to the
road below, a distance of 2) cubits. Io falling,
the deceased fractured his big toe, and five
days after died from tetanus brought on by the
fracture: —
Held, that the accused was not guilty of an
offence under { 304a of the Penal Code, nor of
culpable homicide not amounting to murder,
because there was no likelihood of the result
following, and, a fortiori, no designed causing
of it. It was simply a case of using criminal
force. Reg. «. AcharJYS- Hollonay and Innes,
J] 1. 1,. Rep. 1 Mad. 324 1877.
2. I 304a— Culpable Homicide— Doing
Rash and Negligent Act.] Where an accused
was charged with culpable homicide, and the
evidence showed that the deceased had an en-
larged spleen, and that his death was caused by
rupture of the spleen occasioned by blows in-
flicted by the accused on the body of the deceas-
ed -.—Held, that it was not sufficient, in order to
And the accused guilty of a rash act under f 3040
of the Penal Code, that the jury should be satis-
fled only of the prevalence of the disease of
enlargement of the spleen in the district, and
infer therefrom criminal rashness in beating the
accused ; but that they should be satisfied also
that the accused was aware of the prevalence of
the disease in the district, and also aware of the
D,gltlzed by G00gle
DIGEST OF CASES.
( HO!
PENAL CODE- eontd.
risk to life involved from striking on the trunk
of the body a person who might be suffering
from disease of the spleen. Empress v. SafA.
TULLA. Morris and White,}) I. L.Rcp.4
Cat 81S, 1879.
S3'7.
See Conviction on Several Charge*.
— — SS 331.33S— Woman with Infant in i
—Blow aimed at Woman, causing Death
of Infant.
See Grievous Hurt. 1.
Empress tr. Sahab Rae L L.
Rep. 3 Cal. 628.
§ 3*3-
See Voluntarily Causing Hurt.
Ekphess b. Fox I. L. Rep. S
AIL 633.
SS 336> 337. 338.
See Culpable Homicide.
Empress r. Krtabdi Mundul.. L
L. Bep. 4 Cal. 764.
S 361.
See Kidnapping.
Empress e. Musaddaksk ..I. L.
Bep. 8 Bom. 178.
S 36J
See Abetment. 4.
Reg. v. Samia Kaundan...I. X>.
Bep.lMad.173.
— § $}2~-Disposittg of Minor Girl for pur.
Poses of Prostitution — Transfer of Possession or
Control over Minor's Person.} Held, that the
dedication by a father of his minor daughtf
under the age of 16 year* to the services of
Hindu pagoda, by getting her made into
Dasi by the tying of the oottu and performam
of other ceremonies, where it was shown that
Dasis universally get their living by prostilutio
and that her father knew that his daughter wi
likely to be employed for prostitution, was
disposing of such minor knowing it to be likely
that she would be used for prostitution, withi
the meaning of § 373 of the Penal Code, noi
withstanding that such minor continued to
reside with her father after snch dedicatio
disposal tantamount to a transfer of possession
or control over the minor's person not being
PENAL QOTiK-contd.
necessary to constitute an offence under that
on. Reg. e. ARuNA Chbllam. Morgan,
CJ.,and/«Bc», J I. L. Rep. 1 Mad. 164,
1876.
.SV^ChBNNA UMMAYl 0. TEOARA ChBTTI.
Ibid. 168.
Under Immoral Custom,
See Abetment. 8.
Empress v, Trovlukho Nath
Chowdhry.-.I. L. Bep. 4.
Cal. 886.
§414.
See Conviction on Several Charges.
9.
Empress v. Rameshar Rat... I.
L. Rep. 1 All. 879.
S435,
See Criminal Trespass. 4.
Empress v. Budh Singh. ..I. X*
Bep. 2 All. 101.
S 4*5-
See Land held by Joint Owners.
Empress e. Rajcoomar Singh...
I. L, Bep. 8 CaL 573.
§ 43°— Causing Diminution of Water Sufi-
fly] It is not part of the definition of the
offence of causing a diminution of water-supply
for agricultural purposes, that the act of the
accused should be, in common language, a mere
wanton act of waste.
It is sufficient that the act is done without
any sort of right, and it matters not that the
person doing it sets up such a right, if the facts
are so clear that the claim is manifestly only an
additional wrong. Rama Krishna Chettj v.
PaLANIYANDI KU 0AMBAK...I, L. BOp. 1 Had.
863, 1870, F. B.
[The head-note represents Innes,]., as dis-
senting, but this does not appear in the body of
the report, nor are the reasons for the dissent
stated.]
— - \ 441— Claim of Right,
See Criminal Trespass. 4. 5,
Empress e. Budh Singh... I. L.
Bep. 3 AIL 101.
Gobihd Prasad I. L. Bep. 3
D.gmzed by GoOgle
(
)
DIGEST OF CASES
( HO* )
PENAL CODE— r«w,
§ 44I— Public Ferry— Plying Boats near.
See Criminal Trespass. 2.
MUTHRA V. J AWAH1R...L L. Hep.
1 All. 027.
§ 447— Entry on Prosecutor's Land in Pi
suit of Wounded Deer.
See Criminal Treapaaa. 1.
Chunder Narain s. Farouha
son ..I. Tj. Eep.4 Cal. 83
— § 447 — Infringement of Exclusive Right of
Fishing in a Public River.
See Criminal Treepaia. 3.
Empress r. Charn Nayiah...I.L.
Rop. 2 Cal. 354.
Set Compounding' Offences. g
Empress «. Thompson I L.
Rep. 2 All. 338.
— § 494 — Bigamy— Abetment of.
See Abetment. 2.
Empress «. Abdool Kurreem ..
X. L. Rep. 4 Cal. 10.
— § 494— Natra Marriage.
See Hindu Law — Inheritance-
Illegitimate Bon. 4. 6.
Ram v. Govind I. L. Rep. 1
Bom. 97.
N array an v. Laving, ..L L, Sep.
3 Bom. 140.
—■— 5 494 — Bigamy — Authority of Oate to
declare a Marriage Void.'] Courts of law will
not recognize the authority of a caste to declare
a marriage void, or to give permission to a
woman to remarry during the lifetime of her
husband who has not given his consent thereto.
BonA fide belief that the consent of the caste
made the second marriage valid does not con-
stitute a defence to a charge, under § 494 of the
Penal Code, of marrying again during the lifetime
of the first husband, or to a charge of abetment
of that offence, under that section combined with
f 109. Reg. «. Sambhu Raghu. tfelvitl and
N. Harridat, J] ..L L. Rep. 1 Bom. 347,
1867.
— I 499— Exceptions.
See Defamation. 1.
Sibho Prosad Pa no ha I. L.
Sep. 4 Cal. 124.
PENAL CODE— contd.
— §S 5°3."5o°.
See Criminal Procedure Code, Act
X of 1873, 5 488.
Empress e. Raghuba ..I. L. Rop.
3 AU. 381.
SS'i
Sec Attempt. 1.
Reg. v. Peterson ..I. L. Rep. I
AIL 816.
Attempt to obtain Bribe.
See Attempt. 2.
Empress v Baldbo Sahai ..L L.
Bep. 3 AU. 2S3.
Attempt — Abetment.
See Fabricating False Evidence. 1.
Empress «. Mula...L L. Rep. 2
AIL 100.
PENALTY.
See Contract. 13.
Mackintosh v. Hunt... I. L.Rep.
2 CaL 202.
- On Insufficiently Stamped Hutidi — Evi-
dence — Ad mi ssi bility.
See Stamp. 8.
MOTHOORA MOHUNv. PEA RV Mo-
HUN...L L. Rep. 4 CaL 269.
- Mitigation of — of Forfeited Recognizance
Bond.
See Recognizance.
Empress v. Nurul Hogg. ..I. L>
Rep. 3 CaL. 767.
- Tender of.
See Stamp Duty- 1-
Chahpabattvv.BibiJibun XL.
Rep. 4 Cal. 213.
PENSION— In lieu of Saranjam.
See Saranjam.
Ramghandra v. Sakharaw., XL
Rep. 2 Bom. 846.
PENSIONS ACT XXTTT. OF 1871.
See Saranjam.
Ramchandra v. Sakharam .XL.
Rep. 3 Bom. 846.
I, The Pensions Act XXIIl. of 1871 is
retrospective. Jamkadas v. Lautrah.
Weitropp, C.J., and Melviti, J I. L. ReP. 3
Bom. 294.
D.gmzed by G00gle
( HOG )
DIGEST OF CASES.
( 11M )
PENSIONS ACT XXTtt. OF 1871-awM.
2. §§3106.— Tora Garas Haks.] Tora
Carat Haks are within the scope of the Pensions
Act XXIII. ofiS7i, and a suit in respect of
them cannot be instituted without the certificate
required by ( 6.
But the Act was not intended to be
pective, or to affect any suit instituted before
the date of its coming into force-
Where, therefore, a mortgagee of such kak
had, before the passing of the Act, obti
decree for the recovery of the mortgage debt
from the mortgaged haks and from the mortg;
gor personally, and a fresh suit was necessary
to enforce execution of that decree against those
haks .—
Held, that the Act did not apply to such fresh
Seattle, the word " right" in ) 3 is equivalent
to the word hat in its restricted Sense of allow,
a nee or fee. Parbhudas Rayaji t>. Motikam
KaliaNdAS. Afelvitl and Kemball, JJ...I. Xi,
Hep. 1 Bom. 303, 1870.
3. §5 3, 4 and 6— Grant of Proprie-
torship in Soil^Jurisdiction.] An enactment
of so arbitrary a character as Act XXIII. of
1871, which purports to deprive the subject of
his right to resort to the ordinary Courts of
Justice for relief in certain cases, ought to be
strictly construed, and the Courts should not
extend its operation further than the language
of the Legislature requires.
The meaning of the expression " grant of
money or land revenue" in ( 4, though declared
by f 3 to include " anything payable on the
part of Government in respect of any right,
privilege, perquisite, or office," is not of so wide a
range as to include a grant of the proprietor-
ship of the soil, or any suit involving the rights
of a proprietor of the soil. Ravji Mandlik b-
Dadaji Dim. Westrofp, C. J., and Larfient,}.
I. L. Rep. 1 Bom. 033,
1875.
4. §§ 3, 4 and 6— Suit for Declara-
tion of Eligibility to officiate as Pat it.-] A suit
for a declaration of the plaintiff's eligibility to
officiate as Patil is not prohibited by Act XXIII.
of 1S71. That Act should receive a strict con-
struction, as being in derogation of the right of
the subject to resort to the ordinary Civil
Courts. GuRUSWDGAUDA RuDRAGAVDA V. Ru-
OgAGAVDATI. Westropp, C.J., and JV. Harridas,
J X. L. Rep. 1 Bom. 631,1377.
I PENSIONS ACT ZXTO, OP 1871-w.rrf,
5. § 4— Certificate by Collector- -Lands
I held free of Assessment.'] Section 4 of the Pen-
sions Act XXIII. of 1871 debars the Civil Court
from taking cognizance of any suit, whether the
Government is a party to it or not, which re-
lates to any pension, or grant of money or
land revenue, conferred or made by the British
or any former Government, without a certifi.
cate from the Collector or other authoriied
officer. Section J provides a remedy for the
claimant of such pension or grant, and f 6 enables
the revenue officer to refer the parties to the Civil
Courts for the determination of their respective
interests in the income or other benefit, which the
executive will still, as against either or both of the
litigants, be at liberty to withhold. Lands held
Free of assessment under a grant from Govern,
ment, which bestows on the grantee the lands
themselves, and not merely the Government
revenue arising from them, dq not fall within the
provisions of the Pensions Act. Babaji Hab:
v Ballal. West and JV. Harridas, J]. ..I. L.
Rep. 1 Bom. 76, 1878.
6. 5 4 — Jurisdiction — Deshmukhi
Haks.] The plaintiff, alleging that, as heredi-
tary Deskmukh of certain Mahals in the Ratnagiri
District, he was entitled to levy from the ryots
of those Mahals a percentage on the revenue
assessed, and that this due had been latterly
received by Government on behalf of the Desh-
ukh, sued to recover a portion of those dues so
collected, but withheld from him, by Government.
The rights which the plaintiff sought to esta-
blish were set forth in a sanad granted in 1777,
after reciting that the Deshmukhi Wa.
tan included a right to levy directly from the ryot
percentage on the revenue assessed,
and that this right had been suspended for a con-
siderable number of years, and the haks resumed
d as part of the general revenue, certain
fixed salaries being paid to the Deskmukhs, m
dance with the petition of the plaintiffs
.tors — ordered that the haks "should be
released to be levied by them directly from the
-ots in accordance with the jamataadi."
The dues accordingly were so levied by the
plaintiff's ancestors and himself at different ratesr
according as the revenue was assessed in cash or
rain, till 1843, after which the Government
fhcials collected them with the regular revenue,
nd paid them to the plaintiff.
On the new revenm
iree in J 866, when i
D,gltlzed by G00gle
DIGEST OF CASES.
PENSIONS ACT XXJTt. OP 1871— contd.
meni was introduced and the grain
abandoned, it was decided, in a suit brought by
the plaintiff against the Collector of Ratnagi
that the plaintiff was entitled to be paid his dues,
on the higher scale of percentage, on the whole
consolidated assessment, and the present suit wa:
for these dues payable for the years (£68-69 tc
1871-7*-
Held, that, whatever the foundation of thi
Deshmakks' rights originally was, the sanadmast
now be treated as the foundation of those rights
as they exist. At the date of that document the
receipt of the old allowances had long been
terrupted. The whole of what was recei
from ryots went into the coffers of the State,
which paid its collectors (the Deskmttiki) by
salaries ; and consequently the restoration of thi
old allowances by the Peshwa (by that sanad)
was in substance a grant by him of part of his
land revenue, and therefore fell within the terms
of § 4 of the Pensions Act XXIII. of 1S71, as
grant of money or land revenue conferred by
former agreement, and therefore that the Civil
Courts had no jurisdiction to entertain the suit.
V asudey S. Modak «. The Collector of Rat-
KAGiRi.,.1. L. Bep. 3 Bom. 99, 1877, P. C.
PERMANENT SETTLEMENT OP
POLLIEMS OB ZEMINDARIEB,
EPPECT OP.
St* FoHiom. 1.
The Collector of Trtchfnopoly
V. L,BKKAMAM...L.B«p. 1 I.
PERMANENT STRUCTURES AND
IMPROVEMENTS MADE BT
HOLDEXOF UNDER-TENURE-
Protection with respect to— on Suit by
Purchaser at Revenue Sale to avoid Un-
der-Tenure.
Set Bale for Arrears of Revenue. 1.
Bhago Bibee v. Ram Kant Roy
I. L. Rep. S CaL 398.
PERMANENT TENANT— Enhancement
of Rent of.
Set Enhancement of Bent. S.
Parsotam ». Kalyam Rayji . I.L.
Bap. 3 Bom, 348,
PERNARTHTJM MOBTQAGE-Urdemp-
See Mortgage. 31.
P. Siiekaki Varha Valia Rajah
..ManoalowAmuoar.LL.
Bep. 1 Mad. 57.
PERPETUAL CULTIVATION, RIGHT
ArHiraa. 1.
Babaji v. Naravan.,.1. Tj. Bep.
PEBPBTTJAL LEASE.
&*H
1.1.
Babaji v. Narayam.,,1, LBtV. 8
Bom. 340.
Sec Forfeiture. 1.
Ahlakh Rai 11. Saliu Ahmad
Khan I. L. Bop. 2 AIL
487.
' PERSON CLAIMING UNDER A DO-
CUMENT "
Set Regiat ration. 37.
Bish Nath...L L.Rep. 1 AIL
318.
PERSON IN AUTHORITY— Inducement
by.
See Evidence. IB.
EnpRiMfl. Raha-.X. L. Bep. 8
Bom, 13,
PERSON TAKING POSSESSION OP
THE ESTATE OP A DECEASED HLV-
HU— Representative— Debts — Probate granted
tfter Decree— Creditor's Suit against Executor ta
•■atisfy Decree out 0/ Deceased's Property.} Until
iome other claimant comes forward, the party
who takes possession of the estate of a deceased
Hindu, who has left a will of which probate has
not been taken out, must be treated for some
jses as his representative, and a judgment
obtained against such a representative is not a
nullity. Even if it cannot be executed
against the estate in the hands of the executor
when he has taken out probate, it is at any rate
sufficient to enable the plaintiff to sue the execn-
or in order to have the decree satisfied. Pro-
;onno Chunder Bhuttacharjbc o. Kristu
ChYTUNKO PAL. Matkhy and Prime?, )] . I. L. S
Rop.4Cal.313; 3 Cal. Bop. 1M,
1678.
D,gltlzed by G00gle
( 1109 )
DIGEST OF CASES.
( mo )
PERSONAL DECREE AGAINST MEM
BER Of UNDIVIDED HINDU
FAMILY— Sale of Family Property
Execution of — Right of other Members
of Family.
See the Index heading Alienation Of
Ancestral Property by Bale
In Execution of Decree
against a Member of an
Undivided Family.
PERSONAL DECREE AGAINST A
HINDU WIDOW — Okw for Arrears of
Maintenance— Charge on the Inheritance— Sc
Execution of Right, Title, and Interest of Widow
— Rights of Purchaser at Execution Sale, and of
Reversionary Heir.'] C, a Hindu governed by
the Mitakshara law, inherited certain ancestra'
property from his father, which property was,
under the Mitakshara law, charged wth the main-
tenance of his mother, N. On C.'s death without
issue, the estate passed to his widow D., who
allowed the maintenance of It. to fall into at-
rear. N. brought a suit against D. personally for
the arrears of such maintenance, and obtained a
decree whereby it was ordered that the plaintiff
(iV.) should recover from the defendant (£>.) a
certain sum on account of her claim, but the
decree did not declare the property itself to be
liable for the debt. In execution of this decree
the right, title, and interest of D. in the property
were sold, and purchased by the defendant.
The notification of the sale under the decree
was that a sale would be held " bf whatever right
and interest the judgment debtor had in the
estates. Besides the right, title, and interest of
the judgment debtor, the right and interest of
no other person will be sold."
In a suit by the reversionary heir of C, after
the death of D., to establish his right of inherit-
ance to, and to recover possession of, C.'s
Held, that the decree being a personal decree,
alt that could be sold under it was the interest
of the widow. Neither the decree nor the sale
proceedings having declared the property itself
liable for the debt, the purchaser obtained an in-
terest in the estate only during the widow's life-
time. The debt was a personal debt of the
widow, and the sale against her in discharge of
her personal liability was of the interest which
belonged to her, and not the estate which belong-
ed to her husband. It was the widow's property
only that was liable to be sold, or was sold, in
72
PERSONAL DECREE AQAINBT A
HINDU WIDOW— «««.
discharge of her personal debt ; and the plaintiff,
therefore, was entitled to recover. Ba f j u H
DOOBEY v. BRIJ BHOOKUN I.ALi. AWUSTI...1.
Rep. 2 L A. 257 ; I. L. Rep. 1 Cal. 138 ;
24 W. R. 306.
On appeal from IB Bong. L. Rep. 140, n.
See Bale in Execution of Decree. 19.
Alukmonse Dabee ». Banu
Madhub Chuck BRBUTTY..X
L. Rep. 4 Cat 677.
PERSONAL KNOWLEDGE OF
JUDGE.
See Judge importing hie Personal
Knowledge of Facta.
HURPURSHAD V. ShEO DvaI. ,.L.
Rep. SLA. 269—286.
PETITION FOR LEAVE TO APPEAL
TO PRIVY COUNCIL ...
See Appeal to Privy Council.
Limitation for — Exclusion of Time neces-
sary to obtain Copy of Judgment.
See Limitation. 90.
Jawahir Lai. v. Narain Das...
I. L. Rep. 1 Alt 644,
PETITION FOR LEAVE TO SUE IN
FORMA PAUPERIS- Appeal from
Order rejecting.
See Appeal— CiviL 18.
Collisit. Manohar Das I. L.
Rep. 1 All. 746.
After Suit commenced in Ordinary Form.
See Buit in Forma Pauperis. 1.
Nbrhal v. Doyal Nath...I. L.
Rep. 3 Cal. 130.
An Unsuccessful— by Mahomedan Wife not
such Demand and Refusal of Dower as to
constitute Cause of Action.
An- Mahomedan Law— Dower. 1.
RanheKhajooroonissao. Ranrh
RYKESOONIS5A...L. Rep. 2 I.
A. 235.
1, Act VIII. of I8J9, § 308— Institution
of Suit— Limitation.) Where an application for
permission to sue informi. pauperis is numbered
and registered, and deemed a plaint in the suit,
not in consequence of proof of the plaint ill's
D,gltlzed by G00gle
DIGEST OF CASES.
( 111S 1
pauperism, but in Consequence of hi? abandoning
his claim to sue as a pauper, fend pacing the
fees chargeable under the Court Fees Act, the
data of such payment, and not the date of the
application, must be taken, in computing the
period of limitation, to be the date of the pre.
sentation of the plaint and institution of the suit.
Skinner « Okok. Stuart, C J., and Pearson, ]...
I. L. Kep. 1 All. 280, 1876.
Reversed on appeal — see infra.
9. Is a Plaint from the Date on which
it is filed—Practice— Act VIII- of l8jo, 55 308,
yo-Transfer of Suit-Act VIII 0/1850,55 II,
13, 13.] On the aoth of February 1873. the
plaintiff filed, in the Court of the Subordinate
Judge at Meerut. a petition setting out all the
particulars required in a plaint for leave to sue
in formi, pauperis. The claim embraced landed
property which was situated partly within the
jurisdiction of the High Court of the N..W.
Provinces, and partly within the jurisdiction of
the Chief Court of the Punjaub. The Judge of
Meerut rejected the petition, on the ground that
the question of the plaintiffs pauperism could be
more conveniently tried in the Punjaub. The
plaintiff thereupon filed it in the Court of the
Deputy Commissioner of Delhi, and on the 14th
of April 1873 an order was made by that Court,
after examining witnesses, admitting the plain-
tiff's suit in formd pauperis. On an application
by the Deputy Commissioner to the High Court
o( the Punjaub for authority to proceed under
5 13 of Act VIII. of 1859, that Court, on
the 19th of May 1873, directed that " the plaint
should be returned to the plaintiff, with instruc-
tions that he should present it to some Court
in the N.-W. Provinces." The plaintiff, accord.
ingly, took the proceedings back to the Courl
of Meerut, which Court, on the loth of July
18731 ordered " that the case be brought on the
file and numbered." Questions having been
raised whether the finding of pauperism in the
Delhi Court availed in the Meerut Court, the
plaintiff, on the 17th of November 1874, pai
the proper stamps in Court. The defendant
then objected that the suit ought not to proceed;
(i) because the plaintiff had fraudulently applied
to be made a pauper ; and (3) that the suit
should be regarded as instituted on the date the
Court fee was paid, which was beyond the period
of limitation. It was found on the evidence
that there bad been no fraud on the part of the
PETITION FOR LEAVE TO BUS IN
FORMA. PAUPERM-to-M.
plaintiff In filing his petition to be allowed to
Held, that the petition of plaint filed and
numbered on the 19th of July 1873, although
much of it as asked to be allowed to sue in
formi pauperis was given up when the Court
fees were paid into Court, must be considered
a plaint from the date on which It was filed,
d not, as the High Court held, from the date
which the stamps were paid. If there had
been any fraud found on the part of the plaintiff,
' e case would have been different.
Quote, whether the High Courts of the N. W.
Provinces and the Punjaub had power, under
Act VIII. of 18S9, 5§ ii, 13, 13, to transfer the
from the Delhi to the Meerut Court in the
e position in which the suit stood before it
was transferred, so as to import into the suit
when filed in the latter Court, the finding to
which the former had come on the issue of pau-
m. Skinner v. Ordb.L. Rep. 6 1,1
138, 1878; I. L. Rep. 3 All. £41 ; 4 CaL
Rep. 331.
Set NlRMUI. CHANDRA MoOKERJEB a.
Daval Nath Bhuttackarjeb...
L L. Rep. 3 Cal. 130.
Under Suit in Forma Pauperis.
piimoir WITHOUT SUIT— APPLI-
CATION BY, FOR APPOINT-
MENT OF GUARDIAN.
See Guardian, Appointment of.
In the matter of BrtTAN I. L.
Rep. a CaL 3S7.
PLAINT— Boundaries — Specification of —
when whole Estate bearing Name, sued
for.
S« Civil Procedure Code, Act Vm,
of 1889, § 38, CI. 4 and 5.
Ram Daval Khan e. Ajoodhia
Ram Khan I. L. Rep. 9
Call.
Cause of Action — Consent by Benameedar.]
The plaint alleged that the first three defend-
ants, with a brother since dead, purchased a
putnee mehal therein described ; that having
failed to pay the rent to the zemindar, the put-
nee mehal was sold, and was purchased by the
three first defendants out of their own funds as
Sebaits of an idol ; that subsequently they pre-
sented a petition praying thai the name of their
D,gltlzed by G00gle
DIGEST OF CASES.
( "I* )
PLAINT- -co»ld.
mother, the fourth defendant, might be insert-
ed as purchaser in the place of their names, and
that the Collector in compliance with their pe-
tition, entered her name as purchaser. The
plaint then alleged- a subsequent sale to the
plaintiffs by the first three defendants ; that
they, on the oth ol Assar 1276, caused a kobala
to be executed by the fourth defendant, and that
they, being the real owners, became witnesses
to the deed, and received the whole of the pur-
chase-money ; and prayed, by reason of Ouster
and disturbance alleged, for damages against
all the defendants for breach of the following
covenant contained in the kobala : —
" If any one making any objection to the sale
by me of the said mehal give you any trouble
in any way, then 1 will put matters straight. If
I fail to do so, 1 will return the consideration
money. If I do not return it, you will realize it
by meany of a suit"
The Civil judge, in whose Court the rait was
filed, held, upon the plaint and the instrument of
sale, that there was no cause of action against
anybody. The High Court remanded the case,
to try, whether there had been the ouster and
disturbance alleged, and whether under the cir-
cumstances they constituted a breach of the
contract ; but, having made the remand, they
decided that the contiact was one which bound
the mother only, and that the sons not being
bound by it, the suit ought to stand dismissed
against them 1 —
Held on appeal to the Privy Council, that, on
the plaint and the allegations found in it, the
plaintiff had disclosed what might be a cause of
action against all the defendants, and that the
case must be remanded accordingly. The alle-
gations were that the sons caused the contract
to be made, and the plaint throughout treated
the mother as the mere instrument.
The question to be tried, therefore, on this
point would be, whether the contract was really
entered into by the mother as agent, and on be-
half of the three sons and by their authority.
BlSHHSWAKI DBBYA V. GoVIND PERSAD TE-
wam , L. Rep. 3 L A. 194.
1876.
PLAINT -AMENDMENT OF.
See Amendment of Plaint.
See Assignment of Mortgage.
Ganfat*. Adakji . I. L. Rep. 3
Bom. 818.
PLAHJT— AMENDMENT OF-contd.
See Civil Procedure Code, Act
Vffl. of 1859, § 7. S.
RamTarrunv. HossbinBaksh...
I. L. Hep. 3 Cal. 785.
Adding Parties— Suit against Agent —
Amendment by adding Principal refused.
See Parties to Suit. 7.
KOECLEK O. ProSONNO CoOMAR...
I. L. Rep. 8 CaL 472.
Disallowed on Appeal, where Non-Joinder
of Plaintiffs not remedied in Court below
though objected to.
See Parties to Suit. 9.
Dulah Chamd v. Balran Das...
L L. Rep. 1 AIL 404.
Originally seeking Declaratory Decree, by
paying Court Fees on Ejectment Suit,
See Declaratory Decree. 8.
Chokaungapeshanav. Achivas.
I. L. Rep. 1 Mad. 40.
Pre-emption Suit.
Set Amendment of Plaint. 1.
Durga Prasad e. Nawazish Au.
I. L. Rep. I AIL S91.
— Suit against Firm— Amendment to charge
one Partner only disallowed.
See Company— Winding up— Con-
tributory. 1.
The London, Bombay, and Mem-
terkanean bank v. bhiahji
Zutani ..I. L. Rep. 8 Bom.
116.
■ Suit against M unici pel ity— Substitution of
President for Secretary as Defendant —
Limitation.
See Act XT. Of 1B73, § 48.
Manni Kasaundhan*. Crookb,.,
I. L. Rep. 8 AU. 896.
PLAINT - PRESENTATION OP - On
Day on which Court should have re-
opened after Vacation.
See Limitation. 6. 13.
Biskan Chand v- Ahmad Khan...
I. L. Rep. 1 All. 263.
PURRAN C GHOSE ». MUI'TV l.ALl
I. L. Rep. 4 Cal SO.
D.gmzed by G00gle
( me >
DIGEST OF CASES.
( 1116 )
PLAINT, RETURN OF— Appeal from
Order for — after Admission of Sui
See Appeal — Civil. 36.
Kauan Das v. Nawal Singh. ..L
L. Bep. 1 A 11. -620.
Appeal from Order for — after Issues
See Appeal. 23.
Abdul b. Rajindro.-L L. Bep.
3 All. 367.
PLAINT, VARIANCE BETWEEN-
AND PB00F.
See Estoppel. 3.
Gouu Monef. v. Krishna Chun-
DBR...I. L. Bep. 4 Cal. 397.
S/e Suit for Confirmation of Poa-
soasion. 1.
Tekibtput Singh v. Gossain Das.
I. L. Rep. 4 Cal. 46.
Ram Doolary v. Thacoor Roy...
Ibid. 81, p. 63.
See Land Tenures in Xanara.
PLANTING TREES AND SINKING
WELLS CONTRARY TO CONDI-
TION IN LEASE.
See Forfeiture. 1.
Ablakh Rai v. Salim Ahmed
Khan I. L. Rep. 3 All.
437.
PLEADER— Receipt o£ Money or Valuable
Documents by — on behalf of Client —
Vaialatnama Sufficient Authority.
See Vakalatnama.
Anonymous. ..I. L. Rep. 3 Cal.
767.
■ Special Agreement with — for Reward in
event of Success, proportioned to Amount
See Inam Chitti.
Rep. 2 Bom. 363.
appeal
See Practice— Privy Council. 8.
In the mailer o/Quarrv I. L,
Bep. 3 All. 011 ; L. Bep.
7 I. A. 6.
PLEADER'S FEES — Preemption Suit—
Cosls—Act XX. of 1865, f 37] Held, in a suit
for pre-emption, where, it was found by the
Court that the actual price of the property was
less than the price stated in the deed of sale,
and the Court gave the plaintiff a decree with
costs, that the amount payable by the defendant
in respect of the fees of the plaintiff's pleader
ought to be calculated, not on a valuation of
the property which was found to be false, or on
the amount on which the Court fee on the plaint
was paid, but on the real value of the property.
Dedi Singh t>. Bhup Singh. Stuart, C.J. , and
Pearson, J L L. Rep. 1 All. 700, 1878.
PLEDGE BY SERVANT OP GOODS
LEFT IN HIS CUSTODY.
See Contract. IB.
BlDDOMOYE DABEB v. SlTTARAM.
I. L. Rep. 4 Cal. 487.
PLYING BOATS NEAR A PUBLIC
See Criminal Trespass. 8.
Mutiiba .. Jawahir.,.1. L. Rep.
1 AIL 087.
POINT NOT TAKEN IN COURT BE-
LOW.
See Objection not Raised in Court
FOINT NOT RAISED IN THE MEMO-
HANDUK 07 APPEAL.
Set? Appeal- Civil. 6.
And see Declaratory Decree. IS,
Poran Sookh v- Parbutty.-.Z.
L. Rep. 3 Cal. 613.
POLICE OFFICER— Evidence Act I. of 1R72,
§§ 25, 26— Deputy Commissioner of
Police.
See Evidence. 13.
Reg. v. Hueribole...!. l. Rep,
1 CaL 307.
POLICY OF INSURANCE- Construct ion
of.
See Insurance.
Hajee Ismail v. Shamji...L L,
Rep. 3 Bom. 600.
POLICY OF LIFE ASSURANCE— Stamp
on Assignment and Retransfer by En
See Stamp. 1.
Thomson's Policy L I. Bep.
8 CaL 347.
Diaxized by Google
( 1U7 )
DIGEST OF CASES.
FOLLEEM -Madras Regulations XXV. and
XXXI. of I 802— Proprietary Right in the Land-
Permanent Settlement of Polliems — Hereditary
Tenure.-] The affirmative words of , 2 of Mad.
mi Reg. XXV. of 1802, " that, in consequence
of the assessment, the proprietary right of the
soil shall become vested in the zemindars," Ac,
did not either give to or take away from the
former owners of lands not permanently assessed
any rights which they then had It merely vest-
ed in all zemindars an hereditary right at a fixed
revenue upon the conclusion of the permanent
assessment with them. It is a maxim thai affirma-
tive words in a statute, without any negative ex-
pressed or implied, do not take away an existing
right. There are no words declaring that no
proprietary right then existed or should there-
after be deemed to exist, except in Government,
in any land not permanently settled ; nor was
it the intention of the Legislature to pass such
The words " proprietors of land," as
both in the Bengal Code of 1793 and the Madras
Code of 1802, have a technical signification, and
refer to " zemindars, independent talookdars,
and others who pay the revenue assessed upon
their estates immediately to Government;" and
the words " proprietary possession," as used in
the recital of Reg. XXV. of 1S02 (Madras), must
be read in a similar sense, as meaning the pos-
session and the rights of a proprietor in the
technical sense in which that word is used, «*.,
the person who pays the revenue immediately
to Government.
The preamble to Madras Reg. XXV. of 180*
recognizes the right of private property, and
does not assert a right on the part of Govern-
ment to deprive or dispossess zemindars in their
lifetime, or their heirs after their deaths, for the
purpose of transferring their rights to Govern-
ment, or to new holders at the will of Govern-
ment, independent of any considerations con-
nected with the realization of the revenue.
The object of Madras Reg. XXXI. of 1802
was merely the protection of the revenue from
invalid lakhiraj grants, and to provide for the
mode of trying the validity of titles of persons
claiming to hold their lands exempt from the
payment of revenue ; it was not intended to con
fer upon Government any title which did no
then exist. The words "alienations of lands'
in the preamble referred not to mere transfer;
from one proprietor to another, but to grant:
for holding lands exempt from the payment of
POLLEEH- amtd,
A poliiem may be hereditary, and the exist-
ence of a proprietary estate in polliems or other
lands not permanently assessed, and the tenure
by which it has been held, are matters judicially
determinable on legal evidence, just as the right
to any other property.
The poliiem of Uarungapuri is an ancestral
hereditary estate, and not subject to the appoint-
ment of Government.
In India, proof of possession of land or receipt
of rent by a person who pays the land revenue
ediately to Government is prima facie evi-
dence of an estate of inheritance in the case of
in ordinary zemindary. The evidence is stiH
tronger if it be proved that the estate has passed,
in one or more occasions, from ancestor to
ieir. There is no difference in this respect be-
tween a poliiem and a zemindary. The only
difference between a poliiem or a zemindary
which is permanently settled and one that is not
is that in the former the Government is precluded
for ever from raising the revenue; and in the
latter the Government may or may not have
that power. The Collector of Trichino-
poi.v «. Lbkkamani L. Hep. 1 I. A. 382;
14 Bang. L. Rep. 115 ; 31 W. II. 368, 1874.
Ski Raghunada v. Sri Brojo
Kishorah...L. Hep. 3 I. A.
164.
Under Hindu Law— Adoption. 11,
and Succession to Impartible
Zemindary for which no
Permanent Sanad ha* been
issued.
S. C. under Hindu Law— Legiti-
macy.
9. — Whether Hereditary or not— Prac-
tice—Issues.] An unsettled /wf/ien in the Madras
Presidency may be hereditary ; whether it is so
or not, must be ascertained by evidence in each
case. Proof of possession or receipt of rent by a
person who pays the land revenue direct to
Government is prima facie evidence of an estate
Where an issue, though in terms covering the
main question in the cause, does not sufficiently
direct the attention of the parties to the main
question of fact necessary to be decided, and a
party may have been prevented from adducing
evidence, a fresh issue may be directed to try the
principal question of fact. The first issue raised
by the lower Court was, whether a zemindary, or
Diarized by Google
( aw >
DIGEST OP CASES.
( 1I»0 )
POL LIEU -contd.
the income thereof, was answerable for the debt
of the late zemindar. Their Lordships granted
an issue to try whether the late zemindar had an
estate of inheritance in the zemindar y which de-
scended to his minor son as his heir; on co
that the respondents, who asked lor tin
notified to the High Court, within a rea
time, their desire to have that issue referred for
trial, and on payment of the costs of the appeal
to the Judicial Committee and of the appeal to
the High Court. Oolagapfa Chettv
D. Akbuthnot L. Rep. 1 I. A. 369; 14
Beng. L. R. 118, 1874.
POOJAH DALAN— Partition of.
Set Execution of Decree. 11.
Rajcoomaree «. Gopal Chun.
DER...X. L. Rop. S 0&1. S14,
PORTION OT A BH AG IN BHAGD ARI
OB NAEWABABI VILLAGE
Attachment of an Unrecognized.
Set Bombay Act V. of 1868. 1. 3.
Ranchodas, b. Ranchodas..!. L.
Rep. 1 Bom. 681.
Ardasir u. Musk-.I, L. Bep. 1
Bom. 601.
POSSESSION — Formal - Delivery of - in
Execution of Decree.
See Limitation. 19.
KOONJO MoHUN 11 NOBOCOOMAR.
I. L. Rop . 4 Cal. 916.
— — Given by Ameen
—Effect of.
See Criminal Procedure Coda, Act
X of 1878, § 830. a
Mackenzie v. Shbre Bahadoor
SAHi...I.L.Rep.4Cat878.
- — Goods left in Custody ot Servant— Pledge
of.
See Contract. IS.
HlDDOMOVB DABBE «. SlTTABAU.
I. L. Rep. 4 Cal. 497.
— Juridical — as opposed to Physical.
See Limitation. 86.
MaiihubChunderc. ShamCiund.
I. L. Bep. S Cal. S4K.
— Peaceful— Confirmation of.
See Criminal Procedure Code, Act
X. of 1873, § 630. 3.
Mohbsh Cni>Nt>ER...L L. Bep.
4 Cal. 417.
a Butwara Proceeding
POSSESSION- -contd.
Transfer of Property by Person out of.
See Landlord and Tenant. 8.
L. llep.lCal. 207.
POSSESSION OF ADULTERATED
COTTON.
See Cotton Frauds Act (Bombay)
IX. of 1868, g 9.
Reg. «. Hanmahta...I. L. Bep. 1
Bom. 898.
In British Territory — Adulteration in Fo-
reign Territory — Jurisdiction.
See Bombay Cotton Frauda Act
VIL of 1878, §| 6 and 14.
Impx. v. Khimchand Nakayah...
I. L. Bep. S Bom. 384.
POSSESSION, DELIVERY OF- Or Regis-
tration, necessary to validate Sale in Hin.
du Law, against Third Persons claiming
under Vendor, without Notice.
See Hindu Law— Bale of Land.
Lallubhai p. Bai AMWT...I. L.
Bep. 2 Bom, 299,
—Unnecessary to validate San Mortgage.
See Bombay Act V. of 1869. 1.
Ranchodas t. Ranchodas... L L.
Bep. 1 Bom. MI-
POSSESSION OF SALT EARTH.
See Hadraa Beg. I. of 1806, § 18.
Rbg. n. Bvla Aschi ..I. L. Bep.
1 Mad. 878.
POSSESSION FOB TWELVE TEAKS
BT GRANTEE UN DER INVALID
GRANT.
See Grant by Wife daring Abaence
of Husband.
BSJOVCAUNDBR V. ROY PrASONNO...
I. L. Bep. 4 Cal. 327.
POSTPONE - PETITION — Suit on.]
Plaintiff sued in the Munsiff's Court ol El lore for
the recovery of certain moneys claimed as due
under a " postpone-petition." In execution of a
decree in former suit between the same parties, a
petition was presented by them to the Munsiff's
Court stating an arrangement between them for
the payment of the amount decreed by instal-
ments, with a provision that, in default of pay-
ment, " the Court may, on the application of
D,gltlzed by G00gle
( 1181 )
DIGEST Of cases.
( »B )
POSTPONE - PETITIO N— eon id.
the plaintiff, issue a warrant and collect the
amount, with costs of the petition, from the
produce of my share of the Agraharan lands * *
which are held liable by the raiinama decree of
this suit, from the said lands, from my other
property and from myself, and pay the same to
the plaintiff." The petition concluded thus —
" We, both parties, present this post pone-petition
with our free will and consent, and pray for its
being enforced according to its terms."
Held, on second appeal, affirming the decree of
both the lower Courts, that as it was clear that
no intention existed between the partie
new rights enforcible by suit in supersession of
those acquired or declared by the decree, a suit or
the " postpone -petition" was not maintainable
Darbha Vehkahha v. Rama Subbarayadu.
I. L. Rep, 1 Had. 887. 1878. 7. P.
POSTPONEMENT OF PERIOD OF DI8
TRIBUTION - Gift to Class — Child
born after Testator's Death, but before
Period of Distribution, takes.
AvWULB.
Maseyk v. FBkousoN...LL.Rap.
4 Cal. 670.
Gift of Residue to a Class— Act X. of 1865,
|| 08, 101,103.
See WiU. 4.
Maseyk o. Ferguson. ..I. L.Rep.
4 Cal. 304.
See Salo in Execution of Decree. 8.
Goofbb Nath v, Rov Luchml-
put 1 Xi. Rep. 3 Cal.
648.
POTTA— Stipulation in— for Increase in Ren-
tal to be made Yearly as Lands let Cul-
tivated—Suit to recover Rent as per —
Notice of Enhancement.
See Bengal Act Vm. of 1889, § U.
NlSTAHINI DASI fl. BOHOWALl
Chattbpji ...I. L. Rep. 4
Cal. 941.
POWERS OF AN APPELLATE
COURT.
See Appellate Court, Power* of.
Durga Prasad v. Kkairati. ,L
L. Rep. 1 AIL 045.
POWERS OF AS APPELLATE
COURT— amid.
To add Parties — Act X. of 1877, (( &,
582— Act XV. 0/1877, I «■] S. sued y. and
R. to recover the profits of a certain share in a
lemindary. The Court of first instance passed
a decree against N., and dismissed the suit as
against R. N. appealed from this decree, but S.
did not. The Appellate Court made R. a re-
spondent, the period of limitation allowed by
law for S. to have preferred an appeal having
then expired, and eventually reversed the
decree, dismissing the suit as against N., and
giving T. a decree against S. ■. —
Held that, though the Appellate Court was
competent to make R. a party to the appeal
under ff 32 and 582 of Act X. of 1877, yet it
was not competent, with reference to ( 23 of
Act XV. of 1877. to give 5. a decree against R.,
the former not having appealed within the time
allowed by law. Ranjit Singh v. Shbo Pra-
Ram. Stuart, C. J., and Spankie, J ...L L.
Rep. 8 All. 487, 1879.
POWER OF APPOINTMENT- Execution
Fbhrsrn v. Simpson. ..I. X. Rep.
4 Cal. 514.
POWER OF ARBITRATORS TO AD-
MINISTER OATH OTHER THAN
IN PRESCRIBED FORM.
See Oaths Act X, of 1878, || 8, 10,
Wali-ul-la «r. Ghulam Ali...I.
L. Bap. 1 All. S3B.
>F ATTORNEY— Power to receive
Money— Assignment.
See Stamp. S.
Bhagvandas*. Abdul H use in... L
L. Rep. S Bom. 40.
POWER TO CEDE TERRITORY.
See Cession of Territory.
Lac n mi Narkain v. Raja Pbrtap
Singh... I. L. Rep. 8 All. 1.
Damodhar Gordhan v. Deoram
Kanji L.Rep. SLA.
103; I. L. Rep. 1 Bom.
867.
Diaxized by Google
DIGEST OF CASES.
( nw )
See Alienation by Guardian, 3.
Raw Chunderv. Brojonath...I'
L. Bep. 4 Cal. B29,
See Kahomedan Law — Bale by
Guardian.
Hasan Alc v. Meiidi HussaIn...
I. L. Bep. 1 All. B83.
See Mortgage. 30. 31.
Abhaseb Begun v. Moharanee
Rajroof...I. It. Bep. 4 Cat.
S3.
Debi Dutt Sahoo v. Suboodra
Bibbs ... I. It. Bep. 2 Cal.
283.
See Review. 10.
Madho Dasb. Rukhman Sbrak
Singh. ..I. L. Bep. 3 All.
887.
Set Bale by Guardian.
Soonder Narain v. Benud Rah.
I. L. Bep. 4 Cal. 76.
FOWEB OF THE COMMISSIONER FOR
TAKING ACCOUNTS TO GRANT
CERTIFICATES.
See Accounts, 3.
RUSTOHJI «. Kessowji ... I. L-
Bep. 3 Bom. 101.
POWER OF OOMFANY TO SUB
DIVIDE SHARES.
See Agreement to take Shares.
Anundji v. Nariad S. & W. Co.
I. L. Bep. 1 Bom. 320.
FOWEB OF DEPUTY MAGISTRATE
TO QUESTION SANCTION TO
PROSECUTE GIVEN BY SUPE-
RIOR.
See Sanction to Prosecute. 2.
Empress v. Isad Ally X. L.
Bep. 4 Cal. 809.
POWER OF DIRECTORS TO BOB-
ROW MONEY.
See Power of Director* to bind
Company by Bill of Ex.
change.
In the matter of The New Flexing
S. & W. Company (Limited).
I. Id. Bep. 8 Bom. 439,
1878.
FOWEROF DIRECTORS TO BIND COM-
PANY BY BILLS 0PEXCHANGE-5tto
of Exchange — Liability of Company on — dramn
by Directors at tuck— Indian Companies Act X-
of 1866, § tf — Company Winding up- Interest
on Debts subsequently to Date of Order to mind
up~RuUsof Court of yd August lSS6] The
Articles of Association of the New Fleming
Spinning and Weaving Company, Limited,
authorized the directors " to raise or borrow from
time to time in the name or otherwise on behalf
of the Company such sums of money as they
from time to time think expedient, either by way
of sale or mortgage of the whole or any part of
the property of the Company, or by bonds, de-
bentures, or promissory notes, or in such other
manner as they deem best, and for the purpose
of securing the repayment of any money so
borrowed, with interest, to make and carry into
effect any arrangement which they may deem
expedient by conveying or assigning any property
of the Company to trustees or otherwise"i — Held,
that though power lo borrow money on bills of
exchange was not specifically given, yet bills of
:change being in many respects analogous to
omissory notes, and promissory notes having
been specifically mentioned in the article, tbe
power to raise money by an equally well known
and recognized mode, vie., by drawing, indorsing,
accepting bills of exchange, must be deemed
be included in the general words " or in such
other manner as they deem best."
Three of the directors of the above Company,
one of whom was also the Secretary, Treasurer,
and Agent of the Company, drew a bill in favour
of S- in the following form : — " Sixty days after
late of this first of exchange (second and
third of the same tenor and date not being paid]
pay to the order of S. the sum of Rs. a lakhs
ily, value received, and place to account of G.
P., K. N., N. A"., Secretary, Treasurer and Agent,
the New Fleming S. & W. Co., Limited, Direc-
The bill was indorsed by S. to the Bank of Bom-
bay, was duly presented for payment to the
drawee, and protested for non-payment. Subse-
quently to the date of the drawing of the bill, the
New Fleming S. & W. Co., Limited, went into
liquidation. The Bank of Bombay claimed as
indorsees of the bill to prove against the Com-
pany as drawers i—
Held, that assuming that companies under the
Indian Companies Act (X. of 1866] are by ( 47
liable on bills of exchange drawn on their be-
D,„i„.db»Googlc
DIGEST OF CASES.
( 1126 )
POWER OF DIRECTORS TO BIND
COMPANY BT BILLS OF E3E
CHANGE— contd.
hall, or on account o( persons acting under their
authority, the bill in question was not such a bill.
Whether or not a note or bill must, on the face
of it, express that it is made, accepted, or indorsed
" by or on behalf or on account of" the company,
yet there must be on the face of it that which
shows that it was so made, accepted, or indorsed,
and which excludes the inference that it was
made, accepted, or indorsed by or on behalf or
on account of any other person. A bill or note
may be in a certain sense on behalf of, or on
account of, a company, though there is upon its
face no reference to the company even in the
form of a description of the persons who actually
make, accept, or indorse as being directors 01
secretary. As between such persons and the
company such a bill or note may well be on be
hatf or on account of the company: but it is not
therefore, so as between the company and third
parties. So far as third parties are concern
company under the Act can be made liable
bill or note only when such bill or note 01
face of it expresses that it was made, accepted,
or indorsed by, or on behalf, or on account of
the company, or where that fact appears by ne.
cessary inference from what the face of the instru-
ment itself shows. The addition to the signatures
of individuals as makers, drawers, acceptors, or
indorsers, of notes or bills of their description as
director or directors, secretary, treasurer and
agent of a certain company, is not considered to
raise such inference, as it does not exclude the
supposition that, though described as
they intended to make themselves personally
liable to holders of the instrument, though
between themselves and the company they may
be entitled to be indemnified for anything they
may have paid on account of the company in
respect of such notes or bill.
Dutlon v. Marsh (L. Rep. 6 Q. B. 361) followed.
Rule 24 of the Rules dated the 23rd of August
1866 made by the High Court of Bombay under
the powers given by § 189 of Act X. of 1866, is
ultra vires so far as it allows interest on debts
or claims subsequent to the date of the order to
wind up a company to creditors whose debts or
claims do not carry interest. In the matter of
Thi Nkw Fleming S. & W. Co. (Limited).
Green, J I. L. Rep. 3 Bom. 439, 1879.
Affirmed on appeal. ..I, L. Rep. 4 Bom.
076.
73
POWERS OF DIRECTORS TO BORROW
AND MORTGAGE— Ratification by Company
of particular Act of Directors done in Excess of
Authority not an Extension of Future Authority.']
The O- R. Co. was duly registered as a company
limited by guarantee under an Act of the Legis-
lature of Victoria which followed and adopted
the provisions of the Companies Act, 1862.
The Articles of Association contained no re.
r lin
n the
ipany s power
of borrowing. But by Article 50 of the Articles
of Association (which were registered under the
Companies Act) it was stipulated " that subject,
and without prejudice to the power therein given
to the meetings of shareholders, and the condi-
tions and restrictions therein contained, the di-
rectors for the time being should barve, amongst
others, the following powers, that is to say, the
power of borrowing and taking up, on the credit
of the said company or of its property, any sum
or sums of money from time to time, but so
nevertheless that the total amount to be so taken
up should not exceed in the aggregate, as an
existing debt at the same time, one-half of the
then actually paid-up capital of the company."
The authority of the directors so limited was
capable of being extended, under the provisions
of Art. 31, at a general meeting of the share-
holders called for the purpose, by one-half of
the votes of all the shareholders given at such
meeting.
On the 33rd of December 1867, the directors
obtained a letter of credit, No. 150, for £10,000,
and on the nth of September 1S6S a letter, No.
141, for £5,000, and stated to that effect in their
report of the 29th of October ]86S, which was
ratified at the half-yearly meeting of that date.
Letter 150 expired on the 2gth of March 1869,
but was renewed. On the 9th of September 1869,
the directors obtained another letter of credit.
No. 153, for £5,000, but this act was never
assented to or ratified by the shareholders.
In a suit by the respondent Bank to enforce
against the appellant, as the purchaser at a
Court sale in execution of a decree, of the
ight, title and interest of the O. R. Co., an
equitable mortgage which had been granted by
the company to secure advances made by
the Bank, which, with interest, amounted to
£15,296, it appeared that half the paid-up
capital was never more than £8,550 ; that at the
■aA of 1870 the balance due to the Bank was £8 ;
and that the sums claimed in the suit had been
advanced in February 1871, via., £10,000 under
D,gltlzed by G00gle
{ 1137 )
DIGEST OF CASES.
POWERS OF DIRECTORS TO BORROW
AND MORTGAGE-™*,'.;,
letter No. 1JO, and .£5,000 under letter No-
•53:—
Held, that the limitation in Art. JO of the
powers of the directors of borrowing a
gaging, did not form part of the consti
the company, and did not limit the genera]
powera of the company or of the whole body of
shareholders, but was merely a limitation of the
powers of the directors given by the
article : and that acts of the directors in
of their authority might be ratified by the
company and rendered binding.
Although it would be competent for a majority
of the shareholders present (though not a
majority of the shareholders of the company) at
an extraordinary general meeting convened for
that object, and of which object due notice had
been given, to ratify an act previously done by
the directors in excess of their authority ; and
although, if a report had been circulated before
a half-yearly meeting distinctly giving notice
that the directors had done an act in excess of
their authority, and that Ibe meeting would be
asked by confirming the report to ratify the- act,
that might be sufficient notice to bring the ]
ratification within the competency of .the majo-
rity of the shareholders present at the hall-
yearly meeting ; yet, if the object was to give
the directors in future an extended authority '
beyond what was given by Art. 50, that would !
be an alteration of the provisions contained
under the articles which, under CI. 31, could,
only be made by a vote of one-half of all the '1
shareholders of the company.
The ratification of the report of the 29th of
October 1S6S did not authorize the directors
to obtain letter of credit No. 153, in Septem-
ber 1869, or to borrow the .£5,000 thereon, in
February i87r.
The ratification of the letter of credit No. 150,
for .£10,000, did not authorize the renewal of it,
or the acting upon it after the time originally
limited had expired.
The ratification at a half-yearly meeting of a
particular act in excess of authority would not
extend the authority of the directors so as to
authorize them to do similar acts in future,
Royal British Bank v. Turguand (5 Ell. &. BL
248 ;6ibid. 327) distinguishd. The respondent
Bank, therefore, were not, as against the appel-
lant, entitled to a charge on the property beyond
the amount of one-half the paid-up capital, i.e.,
£8,550. Irvine v. The Union Bank of Acs-
ip.M.iA L. Rep. 4 I. A. 86,
1877 ; L L. Rep. 3
Cal. 380.
POWER OF THE DISTRICT JUDOS TO
INTERFERE WITH AN ORDER
FOR LOCAL INVESTIGATION.
See Local Investigation.
Nirod Krishno Rov 0. WoouA-
f-'ATlP MoiJKERJEE I. L.
Rep. 4 Cal. 718.
POWER OF DISTRICT JUDGE TO
TRANSFER TO HIS OWN COURT
PROCEEDINGS IN EXECUTION
PENDING IN SUBORDINATE
COURT.
See Civil Procedure Code, Act
VIII. Of 1869, § 6.
GayaParskad it. B hup Singh ..I.
L. Rep. 1 All. 180.
POWER OF THE DISTRICT MAGIS-
TRATE TO CALL FOR PROCEED-
INGS INCASE OF DISCHARGE
BT SUBORDINATE MAGIS-
TRATE.
See Revival of Prosecution. S.
Ihpx. v. Gowdafa.-.I. L. Rep.
2 Bom. 534.
POWER OF DISTRICT MAGISTRATE
I TO ORDER RE-TRIAL OF AC
CUSED DISCHARGED UNDER §
21 B OF THE CRIMINAL PROCE-
DURE CODE (ACT X. OF 1872).
See Criminal Procedure Code*
§ 298. 1.
Dijahur Dutt...L L. Rep. 4
Cal. 647.
And see the Cases collected under
Revival of Prosecution.
POWER OF DISTRICT MAGISTRATE
TO PROCEED WITHOUT COM-
PLAINT WHERE PROSECUTOR
HA8 NOT AVAILED HIMSELF
OF A SANCTION TO PROSECUTE.
See Criminal Procedure Code, Act
X. of 1872, §142. 1.
Empress v. Nipcka. I. L. Rep.
4 Cal. 712.
Diaxized by Google
( 1139 )
DIGEST OF CASES.
( 1130 )
POWER OF DISTRICT MAGISTRATE
TO REMAND CASE TRIABLE BY
A MAGISTRATE ONLY, AFTER
A DISCHARGE BT A SUBORDI-
NATE MAGISTRATE.
See Criminal Procedure Cod e, Act
X. of 1872, § 395. 1.
Dijahur Dutt I. L. Rep. 4
Cal. 647.
POWER OF EXECUTORS— To mortgage
with Power of Sale.
See Executors, Power of.
Skale v. Brown. ..I. L. Rep. 1
All. 710.
POWER OF GRANTEE OF CERTIFI-
CATE TO COLLECT DEBTS, TO MORT-
GAGE— Act XXVII. of i860.] Where a person
to whom a certificate had been granted under
Act XXVf I. of i860 to collect debts due to the
estate of a deceased Hindu, but who had no
share or interest in such estate, contracted a
debt for the purpose of paying debts due from
such estate, and charged the estate with pay.
ment of such debt : —
Held, that the creditor could not, by virtue of-
the acts of such person, claim to recover the
moneys advanced by him to such person from
the heirs and estate oi the deceased, even though
such moneys had been applied to the liquidation
of the debts of the deceased. Munia *. Balak
Ram. Pearson and Otdfitld, J J... I. L. Rep. 2
All. BIS, 1879.
POWER OF HIGH COURT, AS A
COURT OF APPEAL FROM PRE.
SIDENCT MAGISTRATE, TO
INTERFERE UNDER § 147, ACT
X. OF 1876.
POWER OF THE HIGH COURT, ON
CASE RESERVED OR CERTI-
FIED, TO CONSIDER THE ME.
BITS OF THE CASE.
&« Evidence. 13.
Reg. e. Hurribolr...L L. Rep.
1 Cal. 307.
The High Court on a point of law reserved,
as to the admissibility of rejected evidence, has,
by CI. 36 of the Letters Patent and § 101 of ihe
POWER OF THE HIGH COURT, ON
CASE RESERVED OR CERTI-
FIED, TO CONSIDER THE
KEBJTB-contd.
High Court Procedure Code (Act X. of 1875),
the power to review the whole case, and deter-
mine whether the admission of the rejected
evidence would have affected the result of the
trial, and the conviction should not be reversed
unless the admission of such evidence would
have varied the result of the trial. Section 167
of the Evidence Act (1. of 1872) is applicable to
veil a
civil e
criminal cases whether or not the trial has been
before a jury ; and the expression in that section
before which such objection is raised " includes
•te revising or appellate Court. Res v. Pitahber
JlS \. Westroft, C.J., Sargent and Atkinson, JJ.
I. L. Rep. 3 Bom. 61, 1877.
POWER OF HIGH COURT TO EN-
LARGE TIME FOR DEPOSIT OF
COSTS.
SwAotVL Of 1874, § H.
Soorjuukhi Koer...I. L. Rep. 2
Cal. 373.
POWER OF HIGH COURT TO GRANT
SPECIAL PERMISSION TO DEFO.
SIT MONET FOR COSTS OF AP-
PEAL TO PRIVY COUNCIL
AFTER EXPIRATION OF TIME.
See Act VI. of 1874, §8.
Lalla Gopee Chand...I. L. Rep.
3 Cal. 138.
POWER OF THE HIGH COURT TO
MITIGATE PENALTY OF FOR-
FEITED RECOGNIZANCE BOND:
See Recognisance.
Empress v. Nurul Hugo,.. I. L-
Rep. 3 Cal. 757.
POWER OF THE HIGH COURT, ON
REFERENCE FOR CONFIRMA-
TION OF DEATH SENTENCE, TO
CONSIDER THE JURISDICTION
OF SENTENCING COURT AFTER
ORDER OF DIVISION BENCH TO
MAGISTRATE TO INQUIRE IN-
TO CASE.
Sre Criminal Procedure Code, Act
X. of 1873, §397.7.
Empress ». Sarmukk Singh ..I.
L. Rep. 3 All. 318.
Diarized by Google
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DIGEST OF CASES.
( usa )
POWBB OP HIGH COURT , A8 A COURT
OF REFERENCE, TO ALTER
FINDING.
See Criminal Procedure Code, Act
X. of 1872, | 268.
Reg. «, Balapa ...I. L. Rep. 1
Bom. 638.
POWER OP THE HIGH COURT AS A
COURT OP REVISION— To Consi-
der the Case of a Convict who has not
appealed, when dealing with Appeals of
his Co- Accused.
See Criminal Procedure Code, Act
X. Of 1872, §897. 8.
Empress v. Murli .1. L. Rep. 2
All. 336.
To Consider the Evidence.
See Criminal Procedure Code, Act
X. of 1872. § 297, 1. 4. 8.
In the matter of HARDEO...I. L
Rep. 1 All. 139.
Empress v- Donnelly I. L.
Rep. 2 Cal. 406.
Empress*. Murli ..L I.. Rep. 2
All. 336.
—To Interfere with an Acquittal.
See Criminal Procedure Code, Act
X. of 1872, §227.1.3.6.
In the matter of Hardeo I. L.
Rep. 1 All. 139.
In the matter of Aurokjam...L L.
Rep 2 Mad. 89.
Empress*. Mjyaji I. L. Rep.
3 Bom. 160.
— To Interfere with Magistrate's Discretion as
to Amount of Security to keep the Peace.
See Criminal Procedure Code, Act.
X. of 1879, §§ £94 and 287
JuggutChunderChukkerbutty.
I. L. Rep. 2 Cal. 110.
— — To Quash Committal by Sessions Judge.
See Jurisdiction. 16a.
Empress v. Lachman Singh... I.
I- Rep. 2 All. 399.
To Set Aside Order of Magistrate ordering
Detention of Persons arrested, After Ac-
quittal, pending Appeal from Acquittal.
See Criminal Procedure Code, Act
X. of 1872, i 297. 2.
Reg. v. G ho lam Ismail .... I. L.
Rep. 1 All, 1.
POWER OP THE HIGH COURT ON RE-
TURN TO WRIT OF HABEAS
CORPUS TO INQUIRE INTO THE
VALIDITY OP COMMITMENT BY
SHALL CAUSE COURT.
See Small Cause Court— Presidency
Town.fi,
In the matter of Omkitolall Dbv.
I. L, Rep. 1 Cal. 78.
POWER OF HIGH COURT ON SPE-
CIAL APPEAL TO CONSIDER
THE EVIDENCE.
See Contract. 14.
Nanak Ram u. Mehih Lal...I.
L. Rep. 1 AIL 483.
POWER OP INAHDAR TO EN-
HANCE RENT.
See Inamdar.
Pratafrav Gl']ar v. Bavaji Na-
HMI...Z. L. Rep, 8 Bom.
141.
See Enhancement of Rent. 6.
Parsutamv. Kalvan...L L.Rop.
8 Bom. 348.
POWER OF JUDGE ACTING IN ENG-
LISH DEPARTMENT OF HIGH
COURT— To transfer Case.
See Criminal Procedure Code, Act
X. of 1872, § 64.
Rrg. v. ZvHiruddin..X L. Rep.
1 Cal. 318.
POWER OF JUDGE TO REVIEW
JUDGMENT OF PREDECESSOR.
See Review 2.
Roy Mrgraj v. Beejot Gobino
Burral.,1, L. Rep. 1 Cal.
197.
POWER OF THE LEGISLATURE TO
AFFECT THE JURISDICTION
OF THE HIGH COURT -Appeal to
Privy Council.
See Act VI. of 1874, §6.1.
Feda Hoss£iN...I.L.Rep. ICaL
4SL
See Legislative Power of the Go-
vernor General in Council.
Empress «. Bur ah... I, L. Rep.
8 CaL 83 ; I. L. Rep. 4
Cal. 172 ; L. Rep. SLA.
178 ; L. Rep. 8 App. Ca.
889.
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DIGEST OF CASES.
POWERS OF MAGISTRATES.
Set Criminal Procedure Code, Act
X. of 1873, | 56.
PURSOORAM BOROOAH I. L.
Rep. a CaL 117.
POWER OF MAGISTRATE TO
COMMIT, WHEN CASE REFER-
RED FOR ENHANCEMENT OF
SENTENCE.
5k Criminal Procedure Code, Act
X. of 1879, §48.
In the matter u/"Chinnjmarigadi:.
I. L. Rep. 1 Mad, 28».
POWER OF MAGISTRATE TO RE-
CORD EVIDENCE AFTER CASE
FOR DEFENCE CLOSED.
See Practice— Criminal. 1.
Empress v. Baldeo Sakai...I. L.
Rep. 9 AIL 283.
POWER OF A MAGISTRATE TO RE-
CORD THE STATEMENT OP A
PERSON NOT ACCUSED OF AN
OFFENCE.
See Criminal Procedure Code, Act
X. of 1873, § 123. 1.
lura. v. Malka.,,1. L. Rep. 9
. Bom. 848.
POWER OF MANAGER APPOINTED
BY THE COURT- Act VIII. of 1859,
§343-
See Manager,
See Mortgage. 99.
MORAN V. MlTTU BlBBB X. L.
Rep. 3 CaL 88.
POWER OF MANAGER OF JOINT
HINDU FAMILY TO PLEDGE
JOINT ANCESTRAL PROPERTY
FOR PURPOSES OF JOINT AN-
CESTRAL TRADE — Insolvency —
Title of Official Assignee.
Sn Hindu Law— Maintenance of
Widow. 8.
Johurra Bibbs v. Sresgopai.
Mis3er...I. L. Rep. ICaL
470.
See Hindu Law— Anceatral Trade.
JOYKJSTO COWAR V. NlTTYANUNU
NUNDV...I. L. Rep. 8 Cal, 738.
See Hindu Law— Adoption. 10.
Jo MOON A V. BAHASOONDAR1...L.
Rep. 3 L A. 72; I.L.Rep.
1 CaL 389.
See Right to Sua 4.
Fazal Haq »■ Maha"Chakd...L
L. Rep. 1 All. S67.
POWER OF MUNICIPAL COMMIS-
SIONER TO CLOSE OR DIVERT
PUBLIC HIGHWAY.
See Bang. Act. HT. of 1864.
Empress x>. Brojonath Dby...I.
L. Rep. 3 Cal. 438.
POWER OF REVENUE COURTS TO
AWARD INTEREST IN BUTT
FOR PROFITS.
See Act XVm. of 1873, f, 93, CI. h.
Tota Rah v. Sher Singh I.
L. Rep. 1 All. 361.
POWER OF SALS- Power of Executors to
eate a Mortgage with.
See Executors, Power of.
Sealb v. Brown. ..I. I,. Rep. 1
AIL 710.
POWER OF BALE IN MORTGAGE-
Exercise of — as to Lands in Mofussil
without Intervention of Courts of Justice.
See Mortgage. 33. 83.
PlTAMBBR B. VANHALJI L L.
Rep. 9 Bom. 1.
Jagjivan e. Shridhar I. L.
Rep. 9 Bom. 328.
See Dewuttur.
PROSUNNO KltHARl V. GOLAB
CHAND...L. Rep. SLA.
146.
konwar doorganath rov t.
Ram ChuhdbrSeh...L.B«P.
4 I. A. 83 ; I. L. Rep.
9 Cal. 341.
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( 1135 )
DIGEST OF CASES.
( 1136 )
POWER OP SESSIONS JUDGE TO AS-
HIT CONVICTED PERSON TO
BAIL WHERE NO APPEAL
Lisa.
See Criminal Procedure Code, Act
X. of 1873, §390.
Reg. «. Thakur Prashad...I. L.
Rep. 1 AIL 161.
POWER OF SESSIONS COURT TO COM-
MIT TO ITSELF CASES NOT
TRIABLE EXCLUSIVELY BY
COURT OF SESSIONS.
Set Jurisdiction. 18. 16a.
Empress b. Futieh Jyah Khan...
I. L. Rep. 4 Cal. S70.
Empress v. Lachman Singh... I.
L. Rep, 8 All. 398.
POWER OF SESSION JUDGE TO SANC-
TION PROSECUTION FOR FALSE
EVTDENOE OR FORGERY COM-
MITTED IN COURT OF MAGIS-
TRATE, l»t CLASS.
See Sanction to Prosecute. 5.
Imfx. v. Padmanaeha ,.I.
Rep. 3 Bom. 384.
POWER OF SHALL CAUSE COURT TO
RESTORE CASE STRUCK OFF
FOR DEFAULT IN APPEAR-
ANCE.
See Small Cause Court— Preai. •
d ency Town. 1.
Sib Chundrr v. Kissen Dval.
I. L. Rep. 1 Cal. 476.
POWER OF SUBORDINATE JUDGE TO
FILE AN AWARD.
See Award,
Balkrishnab. Lakshman...I. L.
Sep. 3 Bom. 310.
FBACTICE-CIVIL-Amdavits — Use of—
on Application to transfer Case to High .
Court under Act X. of 1875, § 147.
See High Court Criminal Proce-
r dure, Act X. of 1875, § 147. 3.
Reg. v. Had] be Jeebun B
I. L. Rep. 1 Cal.;
— Affidavits — Use of — on Application to vary
or discharge Commissioner's Report.
See Practice— Civil. 7.
PRACTICE— CIVIL— fomfrf.
Affidavits— Crota-Exsttiinatioii on Affida-
vits as to Documents— Inspection.
See Practice— Civil. 3.
Affidavits-Right to use, on Return to
Writ Of Hotel Corpus.
See Privilege from Arrest.
Omritolall Dey...I. L. Rep. 1
Cal. 78.
Amendment of Issues at the Hearing.
See Amendment of Issues at the
Bearing.
Boyle Chund Sinoh v. Mau-
lard I, L. Rep. 4 CaL
673.
See Appeal— CiviL B.
And see Declaratory Decree. 13
PORAN SoilKK B. PaRBUTTV.I
L. Rep. 3 CaL 613.
— Appeal — Security for Costs.
See Security for Costs.
Makeckji Limji b. Goolbai...!,
L. Rep. 3 Bom. 341.
— Cross- Examination on Affidavits as to
Do cu m tills— Inspection.
See Practice— Civil. 3.
— Extending Time for defendant to obtain
Leave to appear and defend Summary
Suit on Promissory Note.
See Civil Procedure Code, Act X,
of 1677, §632.
Groom v. Wilson. ..I. L. Rep,
8 CaL 880.
— Framing Issues.
5w Issues.
Apaya s. Rama I. L. Rep. 3
Bom. S10.
— Fresh Summons to Defendant to appear
See Practice— Civil. 4.
— Inspection of Documents — Sealing up
Immaterial Parts.
See Inspection. 3.
HkekalallBuhhti.. rah Surun
Lull I. L, Rep. 4 CaL
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( 1137 )
DIGEST OF CASES.
{ 1138 )
P BACTIOB- CIVIL— con id.
Issues — Too great Generality — Fresh
Issues — Terms.
See Poll! <tm. S.
See Issue*. 3.
OoLAGAPPA CHETTY Ir. ArBUTH-
not .. L. Rep. HA. 268.
— — Issue of Fresh Summons to Defendant to
appear and answer.
See Practice— Civil. 4.
Joinder of Parties.
See the Cases under Parties to Suit,
id Acceptor
See Practice— Civil. B.
- Leave to appeal to Privy Council granted
ultra tires— Preliminary Objection.
See Practice— Civil. I,
i Petition for Spe-
RAM SABUK BOSE V. MoNMOHINl
Dossee ..Ij.Rep.ai. A. 71.
On Motion to Vary or Discharge Commis-
sioner's Report— Affidavits.
See Practice —Civil. 7.
Objection not raised in Court Below.
See the Index Heading Objection not
liaised in Court below.
Objections to Report of Commissioners
under Act VIII. of 1859, § iSt, not taken
in Courts below.
See Practice— Civil. St. _
Reference to Full Bench— Conflict of Opi-
nion between Individual Judges no
Ground for.
See Reference to Full Bench,
Raj Koohar Singh o. Saheb.
zaDa Roy. ..I. I.. Rep. 4
Cal. 20.
— Special Appeal—Point not taken in Me-
morandum of Special Appeal as to
Absence of Notice to quit, not allowed to !
be taken at Hearing.
See Practice— Civil. 10.
PBACTICE-CIVIl-ntnirf.
Security for Costs of Appeal— Poverty.
See Security for Costs.
Maneckii v. Goolbai I. L.
Bep. 3 Bom. 841.
Security for Costs— Residence.
See Civil Procedure Code, Act X,
of 1S77, § SBO.
Mahomed v. Laldin I. L,
Bep. 3 Bom. 327.
Right of Witness summoned under ( 36 of
Indian Insolvent Act, to appear by Coun-
sel.
See Right of Witness to appear by
Counsel.
In the matter of Nursey KessOwji.
L L, Bep. 3 Bom. 270.
- Vacation— Time for Deposit of Money for
Costs of Appeal to Privy Council expiring
in— Power of Court to giant Special Per-
See Ant. VI. of 1874, §8.
Lalla Gopee Chand J, L.
Bep. 3 Cal. 138.
1. Preliminary Objection — Leave ta
appeal granted in India ultra vires— Special
Leave to appeal."] Where the leave to appeal
granted by the Court in India was clearly ultra
vires, an objection by the respondent, made
when the appeal was called on for hearing, and
before the argument on the merits was com-
menced, was allowed, and the appeal was dis-
The right practice is to take an objection of
this kind at the earliest moment, but it is com-
petent for their Lordships to hear it nt any stage
of the appeal, and also to grant in fitting cases
special leave to appeal, nunc fro tunc, directing
that the petition of appeal should go to Her
Majesty, with the report upon the appeal itself.
Such application refused in the present case, on
the ground that the rights of the appellant
ight be ascertained/and enforced more satis-
factorily in some other proceedings than by their
Lordships under the Irregular appeal sent up
by the Court in India. Gajadkur Pershad p.
The Two Widows of Emaw Ali Beg. ..L. Rep.
2 I. A. 200; 10 Beng. L. B. 231, 1870.
2. Report under Act VIII. 0/1850, § l8l
—Objections."] Where a report, or supplemental
report, has been made by Commissioners to
Diaxized by Google
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DIGEST OF CASES.
PKACT ICE-CIVIL— contd.
whom accounts have been referred for investiga-
tion under Act VIII. of 1859, f 181, the Privy
Council will not entertain any objections thereto
which have neither been brought to the notice of
the 6rst Court, nor made in any of the grounds
of appeal in the Courts in India. Seths Guj.
■TOli, Jbithmul, and Thakuhuil v. Musst.
Chabes Kowar.L. Rep. S I. A. 84, 1874.
8. Inspection of Documents — Affidavit
as to Documents — Written Statement — Cross-
Examination on Affidavit.'] Where the defen-
dant stated on affidavit that a schedule annexed
thereto contained a list of all the documents
bis possession or power relating to the suit, a
certain other documents not mentioned therein
were referred to by the defendant in his wi
Held, on the hearing of a summons to com
the sufficiency of the affidavit, that the phi
could not cross-examine upon the affidavit, but
could only show that it was not an honest
affidavit. The proper course was to apply foi
inspection of the document referred to in the
written statement and omitted from the schedule,
if inspection was needed. Kennelly it. Wyman,
Phtar, J I. L. Bep. I Cal.
178, 1870.
4. Summons to Deftndant to appear
and answer— Fresh Summons— Pules of Calcutta
High Cowl (4« December 1875) 1 and (gin
February 1875) E.] A plaint was filed on thi
12th March 1875, and the summons tothedefen
dant to appear and answer issued on the 13th
March 1875. Service could not be effected, and
on the 10th March 187; the plaintiff applied for
leave for substituted service, but was refused.
No further steps were taken by the plaintiff in
the matter until the 21st March 1878, when the
plaintiff applied for a fresh summons to issue, the
time for the return of the first summons having
long since expired ■. —
Held, that the mere filing of a plaint, or the
naked fact that a plaint is on the file, will not of
itself prevent the operation of the law of limit,
ation. A plaintiff is bound to take every means
in his power by proper proceedings tocompel the
defendant to appear or to give him notice of the
suit. And so long as he can show that he has
diligently attempted to perform this duty, and
only so long, he is entitled to insist on the pen-
dency of the suit as counteracting the ordinary
law of limitation. If the fii
PRACTICE-CIVIL— ««/<*.
be served, the plaintiff should apply, within a
reasonable time after its returnable period, for
the issue of a fresh summons, and if a proper
case be made, the usual returnable period will be
extended. In the present case no steps having
been taken to renew the summons for three
years, and no sufficient case having been made
by the plaintiff to excuse the delay, the applica-
tion for the issue of a new summons was out of
time, and therefore refused- Rakkissen Doss
tr. Luckev Narain. Pontifex, ] Z. L. Rep-
8 Cal. 313, 1878.
6. Joinder — Suit against Drawer and
Acceptor of Bill — Act X. of 1877, f 29.] The
drawer and accepter of a bill of exchange can
be joined as co-defendants in a suit by the
holder of such bills. Pestonjee Eduljee Guz-
duk t>. Mirza Mahomed Ally. Pontifex, ].. I.
L. Rep. 3 Cal 641,1878.
6. Interrogatories — Evidence.] A
party at whose instance the interrogatories have
been administered must put in the answers as
part of his evidence if he wishes to use them at
the hearing. Gosto Behary Pal v. Johur
Lall Pal. Wilton, J...I. L R*p.4 Cal. 836 ;
4 Cal. Rep. 164, 1879.
7. On Motion to discharge or nary
Commissioner's Report— Affidavits.'] In moving
to vary or discharge the report of a Commis-
sioner for taking accounts, the parties should
move on a memorandum of objections filed in
the Prothonotary's office, and upon the evidence
which was before the Commissioner, and not
n affidavits made for the purpose of the mo.
ion. On such a motion, affidavits should only
■e used (i) when ordered by the Court, if it
desires fresh evidence ; or (2) by special leave
of the Court for the purpose of advancing a fact
which does not appear on the face of the pro-
ceedings before the Commissioner. Suuak
HHED V. HaJI IsMATlHaBIB. Westropp, C. J.,
id Green, j I. L. Rep. 1 Bom.
158, 1876.
8. Variance.] A Judge is not at
liberty to make for a plaintiff a case totally
different from that which the plaintiff himself
lieges. Kachubhai Gulabchand*. Krishna-
m. Westropp, C.].,nad Melvill, J... I. L. Rep.
8 Bom. 638, 1878.
8. Objection Not Raised ia Court Below
-Appeal — Invalidity of Adoption.] An objection
D,gltlzed by G00gle
( 1141 ) DIGEST OK CASES. ( 11*2 )
PRACTIOE-CTVIL-coittrf. i PRACTICE -CBOtlHAL-wnM.
(O the validity of the adoption of the plaintiffs | Criminal Procedure Code, Act X. of 187!,
husband by reason of his having been, at the . SI *'S and 351 - Right of Accused to recall and
time of the adoption, one of the two sons of his | cross-examine Witnesses for Prosecution— Power
natural father, and therefore that such an ; of Magistrate to record evidence after Defenci
adoption is invalid according to the Dttltaka\ closed.} Per Spaukir, J.— The plain meaning
Chandrita, } t, paras. 29 and 30, and the Dal- j and intention of j Ji8 of the Criminal Proce-
taka Mimansa, J 4, paras, t and 3, was not j dure Code (Act X. of 1S72) is to allow the ac-
allowed to be raised for the first time in regular j cused person the right to re-call and cross-
appeal, as that question of law could only arise j examine the witnesses for the prosecution at
on the establishment of a particular fact, which ' any lime while he is engaged in his defence,
was neither alleged in the Court below, nor any and before his trial is concluded. The object
issue raised upon it. JaNoKEK Dehea r. GopaL ( of the section is clearly to secure the accused
I the opportunity of cross-examining the witness-
es for the prosecution after he has been in-
S.C. under Hindu law-Adoption. I <°r""d " '° "" «t™c«lb. .|*«i«c ch.,g.
o which he is required to answer, Ifthis oppor-
tunity be secured, he has no further right of
10. Objection not Raised in Court . reCt,||ing lhe witnesses. If the witnesses for
en—Want of Notice to Quit .1 In a suit to re- 1 ,he defence are ln attendance, they are to be
.■er lands, which the plaintiffs alleged to be Lxamined, and after that the accused shall be
1 ihe defer) dan
' , allowed to recall and c
urchasers at an auction sale of the said j M for the ptosecu,illn. But if the
Is held I
for the defence are not in attendance,
certain persons, who were alleged by the plain- I cused wou,d „„, be al ,iber,y to reca]| ,he wit
tiffs to be the fnamdars of the land, and to have , n£sses for [|le prosecution. If he refuses to
no miras rights therein, the objection that the \ cxercise ,hjs ,igh, n/,„ ke has gnUrcd ,„ hu
plaintiffs had no. received a proper or any nonce defenUi ,|e canno(. demand as a right the reeal|
to quit, not being among the objections in the 1 q[ the wilnesse5 for the prc.seCution, jf the case
memorandum of spec.al appeal, the Court de- j be adjourned because he has not produced his
dined 10 permit it to be raised at the hear. og witne55es. He has had the opporuni.y intended
of the special appeal. Babaj i v. Narayan. k„ the section
Westropp, C 1 , and West,] I.L.Rep.31 ,,,, .. ' _ ., . , . ,, . ,
Bom. 340, 1878. | „,W!"" ' '**"""■ ' «•'""<*■ •"« h"""S
the defence 01 an accused person made on (he
S. C. under Construction of Sanad. . charges being read to him, offered the accused's
2, and Mima. 1. | pleader an opportunity of cross-examining the
] witnesses [or the prosecution, which the pleader
PRACTICE— CRIMINAL — Appeal— Pre. refused, saying that he would apply to the
sentation of. Court after he had examined his own witness-
See Appeal— Criminal. 1. es, who were not then in attendance, and theMa-
In the matter of Subba AiTAlA. gistrate held that he could not do this, and the
I. I.. Rap. 1 Mad. 304. case being adjourned for the production of the
Committal after Chaige drawn up. nesses for the prosecution -.—Spaniie, J, held.
See Criminal Procedure Code, Act that the accused could not demand as of right
X. Of 1872, §§ 220, 22L to have them recalled for cross-exami nation.
Empress*. Kudrutoolah... I. L. field also, per Spankic, J., (hat f 351 of the
Rep. 3CaL496. Criminal Procedure Code (Act X. of 1872),
1 which gives the Magistrate power to summon
Separate Charges for Distinct Offences. , any witness a, flny slage of any proceeding, in-
See Criminal Procedure Code, Act quiry, or trial, if the evidence of such person
X. Of 1872, §5 45t), 454. appears essential lo the just decision of the
EMPRESS v. DONOSJOV Bara] L L. case, empowers a Magistrate to record evidenrr,
Rep. 3 Cal. 540. both oral and documentary, after 111 c cjm; lor
H
DiQitized by Google
( U« )
DIGEST OF CASES.
( uu )
PRACTICE- CRIMINAL- conld.
the defence has been closed. Empress v. Bal-
dbo Sahai I. L. Hep. 3 All.
£63, 1879.
S. C. under Attempt. 8.
PRACTICE AND PROCEDURE IN
surra pending at date of
ENACTMENT OP THE CIVIL
PROCEDURE CODE, ACT X. OP
1877— Suit referred to Commission*
take Account.
See Civil Procedure Code, Act X. of
1877, § 3.
RliSTOMJI II. Kessowji I. L.
Rep. 3 Bom. 161.
PRACTICE PRIVY COUNCIL.
Appeal Heard Ex-Parte, Rehearing of.
See Practice — Privy Council. 4.
Concurrent Judgments on Facts.
See Practice— Privy Council 1. 3.
Cross-Appeal when Unnecessary.
See Practice— Privy Council. 3.
Leave to Appeal granted in India Ultra
Vires.
See Practice- Civil. 1.
Misstatement in Petition for Special Leave
to Appeal.
See Seng. Reg. VIII. of 1819, § 8,
CL 2. 1.
Objections not Raised in Courts Below.
See Practice— Civil. 2.
— — Special Leave to Appeal.
See Practice— Privy Council. 5 to
9.
1. ■ Concurrent Finding en Facts — Privy
Council.'] The Judicial Committee will not
disturb the concurrent findings of two lower
Courts on a question of fact. Mannoo Lall t>.
BallChoonbe Lall L. Rep. 1 I. A. 44-
S. C. under Estoppel. 1.
3, But the rule of the Judicial Com-
mittee of the Privy Council, not to allow the
concurrent judgments of two Courts on a ques-
tion of fact to be disputed, may be relaxed in a
case where the question of fact is closely mixed
up with questions of law. Pauuem Valoo
PRACTICE- PBIVY COUNCIL— «tr/rf.
£hetty v. Pauliem SooryahChetty...L. Rep.
4 I. A. 109 ; I. L. Rep. 1 Mad,. 252, 1877.
S. C. under Hindu Law -Self -Ac-
quired Property.
3. Question of Lav referred to Full
Bench — Right of Respondent without Crass-Appeal
to question Correctness of Answers.] Where a
Division Bench of a High Court refers a question
of law for the consideration of the Full Bench,
and the answer of the Full Bench is not framed
as a decree or as an interlocutory order, and an
appeal is brought to Her Majesty in Council, it
is open to the respondent, without a cross-appeal,
to object to the correctness of the answer given
by the Full Bench on the question of law re-
served. Mussumat Phoolbas Koo.vv.ar o.
Lalla Jogeshur Sahov...L. Rcp.31. A.7;
I. L. Rep. 1 Cal. £26.
S. C. under Hindu Lav— Alienation
of Ancestral Property. 3.
4. Petition — Appeal heard ex parte —
Re-hearing .] A respondent, who has been pro-
perly made a party to the suit in the Courts
below, and is bound by the proceedings therein,
but who has not entered an appearance as re-
spondent to the appeal to Her Majesty in Coun-
cil, Or authorized any person to do so for him (the
appellant having failed to take the usual steps
against him in order either tocompel his appear-
ance, or to have the appeal regularly beard ex
parte against him), is not entitled to have a re-"
hearing of the appeal, unless by some accident,
without any blame and without any default on
his part, he has not been heard, and an order
has been inadvertently made as if he had been
Rajundernarain Roe v. Bijai Qovind Singh (I
Moo. P. CCasesil7) andee^flfif Kistonnauth
Rey <L. Rep. 2 P. C. 274) approved.
Where it appeared that a respondent had Cull
knowledge of the pendency or the appeal, and
had furnished funds for defending it in the name
of another respondent thereto, a re-bearing was
An issue whether or not the respondent had
been properly made a party to the suit in Ibe
Courts below, and whether or not the proceed-
ings in India, so Far as he was concerned were
coram nan judice, can only be tried in a new-
suit in the Courts below ; and quare whether in
such a suit he would be barred by an order in
D,„i„.db»Googlc
( 1145 )
DIGEST OF CASES.
{ 1148 )
PRACTICE— PRIVY COUNCIL- c«<(.j.
Council if made on an appeal from a decree by
which he was not bound. Maharajah Pee-
tab Narain Sirgh e. Maharanee Subhao
Kobb L. Bop. OLA. 171, 1879.
0. Special Leave to appeal — Suspension
ef Pleader.'] On an application for special leave
to appeal against an order made by the High
Court suspending a pleader, presented after the
expiration of the time of suspension -. — Sir ].
Colville, delivering the judgment of the Judicial
Committee, said that the fact of the expiration
of the period of suspension was of itself some
jround for refusing the application ; but that
their Lordships did not say that if the effect of
the order had been io inflict a lasting stigma on
the pleader's character, and there had been a
clear miscarriage of justice shown, the fact that
the period of suspension had expired would have
induced them to refuse the application. But
their Lordships not being satisfied, from the
materials before them, that the High Court's
conclusion on a pure question of fact in a matter
where they were acting regularly within their
jurisdiction was wrong, refused to giant special
Leave to appeal. In the matter of Quarry ..I.
L Rep. 2 All. Oil, 1979;
L. Rep. 7 L A. e.
6. Consolidated Suit — Valuation?^
Special leave to appeal granted in a suit which
had been consolidated by consent of both par-
ties. Where defendant in such consolidated
suit had taken the values at the rate fixed in
the plaint, which together exceedeed Rs. 10,000,
and had obtained the benefit of an appeal to the
High Court upon the facts by so adopting that
valuation : —
Held, that the defendant could not afterwards
object to that valuation, and that leave to
appeal to Her Majesty in Council should not
have been refused on the ground of value.
Kristo Ihdo Sahav. Hurmonee Oassee...L.
Rep. 1 LA. 84, 1873.
7. Re-epening Case — Application at
Hearing?] Rule against special leave to re-open
the whole case, when application is made for
the first time at the hearing of the appeal.
Tiiakuh Darriao Singh v. Thakur Davi
Singh L. Rep. 1 1. A. 1.
8. — Zillah Judge reviewing Refusal to
StgUftr—Aet VIII. of 1871.J Special leave to
appeal granted to try the question whether
PRACTICE— PRIVY COUNCIL— conid.
under tbe Indian Registration Act (VIII. of
1871), a Zillah Judge can review an order of his
own Court refusing to register a document.
Meek Rbasut Hoosein t. Hadjee Abdoollah.
L. Rep. 1 L A. 72, 1873.
For the further stages of this case, ur
Review. 8.
L. Rep. 3 1. A. 231 ; I. It. Rep.
3 Cal 131.
Objection to Decree as Declaratory
precluded, Special Leave having been granted on
other Ground.] Although it is notan invariable
■ule that no questions can be raised al the hear,
ng which are not indicated in the petition for
special leave to appeal, yet where special leave
has been obtained on tbe ground that important
questions affecting a large community were in-
volved in the decision sought to be appealed
from, the? appellant was held to be precluded
frdm objecting to the decree on the ground of
its being declaratory only. Sheo Singh Rai v.
kho L. Rep. B I. A. 87,
1878 ; I. L. Rep. 1 All. 688 ;
a Cal. Rep. 103.
S. C. under Declaratory Decree. 11,
and Jain Law. 2.
PRECATORY TRUST IN WILL— Be-
quest to Wife " feeling confident that she
would act justly to their children in
dividing the same when no longer re.
quired by her."
See Will. 6.
Ravnort. The Mussoorie Bank.
LL. Rep. 2 All. 06.
PRE-EMPTION— Claim by Agent— Refusal
to purchase before Sale.
See Mahomed an Law — Pre-emp-
tion. 2.
ABADI Begum tr. Imam Begum ...I.
L. Rep. 1 All. 021.
Coparcener has no Right of — as against
Coparceners.
See Mahomedan Law— Pre-emp.
Lalla Nohbut e. LallaJewan.
I. L. Rep. i Cal. 831.
See infra. 2.
Conditional Decree.
See infra. B. 4. 8.
Denized by Google
DIGEST OF CASES.
( 1147 )
PRE-EMPTION-<-0„W.
Hindu Vendor.
Set infra. 11,
■ Hindu Widow's Right of.
See infra. 9.
Limitation to Suit to enforce a Right of.
See infra. 8.0.
See Limitation. 29. 49. 50. 98.
Pattidari Estate— Sale of, in Execution of
Decree of Revenue Court.
See infra. 1,
Pattidari Estate— Sale of— Co-Sharers-
Strangers.
Ste infra. 2.
Sale of Dwelling.House for Occupation,
without Site.
See Mnhomedan Law— Fre-emp.
Zahuhd. NurAli 1 L. Rep.
2 All. 99.
Suit for.
See Amendment of Plaint. 1.
Durga Prasad v. Nawazish All,
I. L. Rep. 1 All. 691.
1, Act XXirr. of 1861, | 14- Pattidari
Estate-Act Will, of 1873. § ill— Act XIX. of
1873, 5 188.] The provisions of <, 14 of Act
XXIII. of 1861 do not apply where the land is
sold in execution of a decree of a Revenue
Held, on the assumption that where land is
sold in eiecution o( sin h a decree a' claim to
the right of preemption can be preferred, under
the provisions of ( 177 of Act XVIII. of 1873
and f lRS of Act X(X. of 1873, that such claim
can only be preterred when the land is a patti
of a mahal, not when it is part only of a patti of
Semble, that where land which is a patti of a
mahal is sold in execution of such a decree, a
claim to the right of pre-emption can be prefer-
ed, under the provisions of ( 177 of Act XVIII.
of 1873 and( 188 of Act XIX. of 1873. Na-
rain Singh 9. Muhammud Faruck. Spankie
and Oldfield, JJ. t L. Rep. 1 All, 277, 1676.
S. Act XXIII. of r86(, § H— Pattidari
Estate — Co-Sharer — Stranger.] The right of
pre-emption can only be asserted against a
stranger, i.e., one who is not a co-sharer or a
( H48 )
PRE-EMPTION— con td.
member of the coparcenery. A sharer in one of
the pau is in a pattidari estate is not a
stranger with reference to the co-sharers in
another patti within the meaning of $ 14 of Act
XXIII. of 1861, which gives no preferential
rights of pre-emption among themselves be-
tween co-sharers in the same patti and sharers in
other pattis. The auction purchaser, at a sale
in execution of a decree, ol a share in a patti-
dari estate, seeking to establish his right as
against a person whose claim to the right of
pre-emption, under the provisions of J 14 of Act
XXIII. of 1S61, has been allowed, and in whose
favour the sale has been confirmed, cannot
maintain a suit for possession of the share, but
should sue for a declaration that the person
claiming the right of pre-emption has no such
right, and to set aside the sale. Farzand Ali
r. Alimullah. Stuart, C.J., and Oldfield, J. ..I.
L. Rep. 1 All. Sj72, 1876.
3. Conditional Decree—Final Decree.]
Where the plaintiff in a suit for pre-emption
was granted a decree subject to the payment of
the purchase money within a fixed period, and
failed to comply with the condition imposed on
him by the decree : —
Held, that he had lost the benefit of the
decree.
When a direction contained in a decree refer-
red to the time at which such decree should be-
come final :-
field, that it became final on being affirmed
by the lower Appellate Court, where, although
a special appeal was preferred by the plaintiff
against the decree of the lower Appellate Court,
: same was subsequently allowed to be with-
jtwti. Sheikh Ewaa v. Motuna Bibi (I. L. Rep.
All. 132) distinguished. Hingan Khan v.
Ganga PaRshad ..Stuart, C.J.. and Oldfield,
J I. L. Rep. 1 All. 893,1878.
See 8, infra.
4. Conditional Decree.] Where a
share in a certain patti was sold by the holder of
:he share to a stranger, and three persons hold'
ng equal shares in the patti were equally en-
" ige administration paper to
mptic
of tl
.titled to
Held, that such pers'
ive the sale made to him to the extent of one-
third of the share. The decree of the Higfl
Court in this suit specified a time within which
each party to the suit should pay into Court a
D,gltlzed by G00gle
DIGEST OF CASES.
PRE EMPTION— contd.
proportion of the purchase money, and declared
that if either failed to pay such proportion
within time, the other of them making the
further deposit within time should be entitled to
the share of the defaulter. Mahabib Parskad
v. Deb: Dial. Turner And Spankit, JJ...I. L.
Rep. 1 All. 391, 1876.
6. Minor-Legal Disability— Act IX.
«f 1871, f 7- Custom.'} In a suit by a co-sharer
in a village, instituted on the 23rd July 1875, to
enforce his right of pre-emption, under a con-
dition for pre-emption contained in the village
administration paper, in respect of a share sold
to the defendants on the 17th oi January 1870,
while the plaintiff was a minor, it appeared that
the plaintiff had no legally constituted guardian
at the date of the sale ; that the share was not
offered to him or any one on his behalf, nor did
he or or any one on his behalf assert a right of
pre-emption at the time of sale. The plaintiff
came of age in October I874. The condition in
the village administration paper, or record of
rights, was as follows i— " Every co-sharer is to
the extent of his possession at liberty to alienate
his share by sale or mortgage, but at the time
of alienation there is this condition, that who-
soever desires to alienate his share, first of all
in the event of his refusal it shall be transferred
to the other co-sharers in the other ihoie, and
when all h
price, then a transfer may be made
and after that the right of alienation shallbelong
to no co.sharer" ; —
Held, that the plaintiff havingbrought his suit
within a year From the date on which he attained
his majority, was not barred by limitation from
Held also, that though under the Mahomedan
law, immediate demand is essential to the enforce-
ment of a right of pre-emption, yet the forma-
lilies requisite under that law do not apply to
rights of pre-emption created by contract, unless
it appear that it was the intention of the patties
to attach to the exeicise of the tight the same
formalities as are required by Mahomedan law.
In all cases in which the right is asserted as
based on a stipulation entered in the record
of rights, the terms of the stipulation must
be regarded, and those conditions only im-
posed which the language of the stipulation
PRE-EMPTION-conM.
There was nothing in the language of the sti-
pulation in this case to show that the formalities
of the Mahomedan law were attached to the
right of pre-emption, nor that the right, if it ac-
crued, would be forfeited if It were asserted at
any time within the period allowed by the law of
limitation. But upon the true construction of
the condition, the co-sharers in whose favour it
was created were to be persons who were com-
petent at the time of the sale, the time when the
condition was to take effect, to make a binding
contract to accept or refuse the offer; and there-
fore the seller of the share was not bound to
make the offer to the plaintiff, nor could the sale
be invalidated by reason of the absence of proof
of refusal on his part.
Held also, that assuming tha clause in the re-
cord of rights to be a record of custom, the Court
would still be at liberty to collect its incidents
from the terms in which it is recorded. And if
the clause were merely the record of a custom,
and if its language were ambiguous, as acustom
to be a good custom must be reasonable, the
Court could not hold a custom reasonable which
allowed the validity of transfers of property to
remain for an indefinite time in suspense. Raja
Ram v. BanSI. Pearson and Turner, JJ...I. L.
Hop. 1 All. 207, 1876.
6. Limitation Act IX. 0/1871, Sched.II.,
Art. 10. J In a suit brought on the 5th October
1874, to enforce a right of pre-emption founded
on a contract in the village administration paper,
impeaching a deed of sale dated the 15th of
September r8j3, (at which date the property was
in the possession of an usufructuary mortgagee,)
which recited that the vendees were entitled to
possession on the 31 st of May 1874, by redemp-
tion of the mortgage : —
Held by the majority of the Full Bench, that
the suit was barred by the limitation prescribed
in Art. 10 of Sched: II., Act IX. of 1871. Ful]
effect is given to the term actual possession in
that article, by holding that where the nature of
the subject of the sale admits of visible and
tangible possession, limitation will run from the
period when tangible possession is taken, but
that when the nature of the subject of the sale
does not admit of tangible possession, limitation
runs from the date when the subject of the sale
is completely conveyed to and vested in the
purchaser, and he has acquired such possession
as before the sale was enjoyed by the seller.
DiQuized by Google
( 1151 )
DIGEST OF CASES.
PRE-EMPTION— contd.
By Stuart, C. J. — The possession intended by
Art. 10, Sched. II., of Act IX. of 1871 was pos-
session by enjoyment of the profits on expiry of
the term of the mortgage. Actual possession
means personal and immediate enjoyment of the
profits, and as the mortgagee was in possession
at the time of sale, the purchaser could not take
actual possession till the mortgage term had
expired. Jogbshar Singh d, Jawahir Singh...
I. L. Rep. 1 All. 811, 1876, F. B.
7. - Mahometan Law—Act VI. of 1871,
( 14.] The right of pre-emption according to
Mahometan law is not a strong right, and any
one claiming it must be held bound by the con-
ditions of Mahomedan law, and should promptly
assert his light of pre-emption by the imme-
diate demand. The " taiao-i-maviasaiat," or
immediate demand, should be made, when a
person entitled to pre-emption has heard of a
sale, on the instant, whether there is any one by
him or not, and when he remains silent without
claiming the right it is lost.
Where the plaintiff failed to make such de-
mand until fwelvi: hours after the sale became
known to him, he was held to have lost his
right of pre-emption. Ali Muhammad v. Taj
Muhammad, Stuart, C. }., and Spankie, J. .1.
L.Bep.l All. 283. 1876.
8. Conditional Decree — Final Decree.']
The Court granting a decree to the plaintiff in a
pre-emption suit is competent to grant the de-
cree subject to the payment of the purchase
money within a fixed period, and if the decree-
holder fails to comply with the condition im-
posed on him by the decree, he loses the bene-
fit of the decree. Sheo Pershad Loll v. Thakoor
Sai (H. C. Rep. N. W. P. 1868, p. 254) fol-
Where the direction in the decree referred to
the time at which such decree should become
final -.—Held (the case being one in which a
special appeal lay), that such decree did not
become final on being affirmed by the lower
Appellate Court, but on the expiry of the period
of special appeal, or where such special appeal
was instituted, when it became final by the decree
of the High Court. Shaikh Ewaz v. Mokona
Bibi. Spankie and Oldfield, JJ...I. L. Rep.
1 All. 132, 1876.
See S, supra.
8. Hindu Widow's Right of.} A Hin-
du widow holding by inheritance her husband'
PRE EMPTION —contd.
share in a village, fully represents the estate, and!
can claim to exercise all rights which would at-
tach to it in the hands of a male owner, including
a right of pre-emption, under a condition in the
village administration paper. The circumstance
that the widow lived with the vendors would not
deprive her of her right, where the claim is not
collusive. Phuluan Rai «. Dani Kuarl Pear-
and Turner, JJ...L L. Rep. 1 All. 463,
1877.
10. WajIb-ul-Arx— Custom— Authority
of Lessee to bind Owner by attesting* 'Administra-
tion Paper.'] In a suit to enforce a right of pre.
emption based on the village administration
papers of a current settlement, where it appeared
that neither the defendant's vendor, nor an; one
he represented, was a party to the execution of
the village administration papers or knowingly
accepted their conditions : —
Held, that the plaintiff's claim could not be
established, nor could the fact that a similar con-
dition of pre-emption was entered in the previous
administration paper, affect the present claim,
which was brought on the contract under the re-
cent administration paper and not on any well-
established custom apart from the contract made
under the administration paper, nor would the
entry of the right of pre-emption in a former ad-
paper necessarily establish, though
ight be evidence, towards proving, such a
custom.
A lessee of the owner of an estate has not
authority, merely as such leasee, to bind the
owner at a settlement by a condition of pre-emp-
tion in the village administration paper by at-
testing it. Chaiiav! Lai. -a. MukaMad Raksh.
Pearson and Oldfield, j] L L. Rep. 1 AIL
863, 1878.
11. Mahomedan Law — Hindu Vendor,"]
Held {Stuart, C.J., and Pearson, ]., dissenting),
that where the vendor of a property is a Hindu, a
suit to enforce a right of pre-emption founded on
Mahomedan law only, and not on any custom or
special agreement is not maintainable, though
both (he purchaser and the pre-emptor may be
Mahomedans, Chundo v. Alim-ud-din (H- C-
Rep- N. W. P. 1874. p- 38) dissented from-
Poorno Singh v. Hurrychurn Surmah (10 Beng.
L. Rep., 17) followed. Dwarka Das v. Husain
Baksh...I. L. Rep. 1 All. 664, 1878, P.B.
12. Contract — Mahomedan Lam
Custom— Special Appeal.} Where the existence
Diarized by Google
( 116
DIGEST OF CASES.
PRE-EMPTION— rewfrf.
in a certain village of the tight of pre-emption was
recorded in the village administration paper as a
matter of agreement, and not of custom, and a
suit was brought to enforce such right founded
on the agreement, and was tried and determined
in the lower Courts as so founded, the plaintiff
cannot in special appeal claim such right as a
matter of custom in virtue of such entry.
A claim to the right of pre-emption founded
on a special agreement does not exclude a claim
advanced at the same time to such right
founded on Ma home dan law. MARATIB Ali
v- Abdul Hakim. Stuart, C.J., and Turner, J
LL.Bep.lAlL 087,1878.
PRE-EMPTION SUIT— Costs as between
Party and Party— Pleader's Fees.
See Pleader's Fees.
Dim Singh o. Bhup Singh... I
L. Rep. I All. 709
PRELIMINARY INQUIRY.
See Criminal Procedure Code, Act
X. of 1872, § 471. 3.
Reg. o. Baijoo Lull... I. L. Rep.
1 Cal. 450.
PRELIMINARY OBJECTION— AB TO
MATERIAL MISSTATEMENT
IN PETITION FOR SPECIAL
LEAVE TO APPEAL -PRAC-
TICE.
Sec Bengal Reg. VIII. of 1
§ s, ci. a.
Rah Sabuk Bosk v. Hosn
nee Dosseb... L. Rep. 2
I. A. 71.
PRELIMINARY OBJECTION -AS TO
WANT OF AUTHORITY OF
COURT IN INDIA TO ORANT
LEAVE TO APPEAL.
See Practice— Civil. 1.
Gajadhar Persad v. The Two
Widows ok Emah Alt B
I. L. Rep. 2 I. A. 205.
PREROGATIVE OF THE CROWN—
To Cede Territory.
See Cession of Territory. 1. a.
LACHHI NaRRAIN V. RAJA PERTAB
Singh... I. L. Rep. 3 All. 1.
Da mod bar it. Dboram...L. Rep.
3 I. A. 103 ; I. L. Rep. 1
Bom. 867 ; L. Rop. 1 App.
C a. 332.
PREROGATIVE OF THE CROWS —
cantd.
- Court Fees — Pauper Suit.
See Civil Procedure Code, Act
VUXoflSOQ, 5 309.1.2.
Ganpat Putava v. Collector of
Kanara I. L. Rep. 1
Bom. 7.
Gulzari Lai, it. Collector op
Barbilly...I. L. Rep. 1 All,
696.
See Prerogative of the Crown.
— Escheat.
See Escheat.
Ranee Sonwet Konwar o- Mirza
Hi*
r Bah,
t Feei—Act Vlll.of 1859,
n — Distribution of Pro-
recover the amount of
Id have had to pay, had
o sue as a pauper, the
ain property belonging
such suit, who had been
Pauper Su!t—Cou
f 309 — Sale in Execute
eeeds.J With a view U
Court fees which J. wo
he not been permitted
Government caused cer
to B-, the defendant 11
ordered by the decree in such suit to pay such
amount, to be attached. This property was
subsequently attached by the holder of a decree
against B. which declared a lien on the property
created by a bond. The property was sold in
execution of this decree -.— Held, that the Go-
vernment was entitled to be paid first, out of the
proceeds of such sate, the amount of the Court
fees J. would have had to pay had he not been
allowed to sue as a pauper. The principle that
the Government takes precedence of all other
creditors is not liable to an exception in the case
of lien-holders. The decision in Ganpat Putaya
v. The Collector of Kanara (I. L. Rep. 1 Bom. 7)
applied in thiscase. The Collector of Morad-
Mutt,
DaIm Khan. Pears.
and Spaniie, JJ..I. L. Rep. 3 AIL 186, 1879.
PRESCRIPTION — Acquisition of Proprietary
Right to Land by.
See Bombay Act L of 1865, § 36.
Collector of Thana 0. Dada-
bhai Bohanji ..I. L. Rep. 1
Bom. 363.
Easement.
See Easement. 1. 3. 3.
Shah Churn u.Tarinny Churn...
LL. Rep.lOal. 433.
D.gmzed by GoOgle
( 115S )
DIGEST OF CASES.
( 1150 )
fcREBCMFTION— contd.
MoHANLAL «. AMRATHL I. L.
Rep. 3 Bom. 174.
StlBRAMANIVA «. RaHACHANDRA...
I. L. Bep. 1 Mad. 330.
1. Peg. V.ofiilJ, ( l,Cl.l-Suitfor
Share in Ancestral Property.'} The plaintiff
brought a suit in 1873 (0 obtain a share in ances-
tial property in the possession of the defendant,
whom the plaintiff alleged to be united with him
in estate. The plaintiff admitted that he had
lived separate from the defendant for forty years
before the institution of the suit, and had not
during that time received any portion of the
profits or produce of the ancestral estate. The
defendant pleaded limitation. Both the lower
Courts held that the suit was governed by Act
IX. of 1871, Sched. II., Art. 127, and decreed in
favour of the defendant, on the ground that no
demand by the plaintiff of his share, and refusal
to comply therewith, had been proved.
Held, that the defendant had acquired a pre-
scriptive title, under Reg. V. of 1827, § 1, CI. r,
in the immoveable estate, the subject of the
suit, by his uninterrupted possession as proprie-
tor for more than thirty years previously to the
passing or coming into force of Act IX. of 1871.
The effect of Reg. V. of 1827, 5 I, CI- I. was not
merely to bar the plaintiff's remedy, but to take
away his light.
The rejieaf of a statute or other legislative
enactment cannot, without expre-s words, or
clear implication to that -."■■■■■ in the repealing
Act, take away a right acquired under the re.
pealed statute or other i-nachncnt while it was
Act IX. of 1S71, though it repealed Reg. V.
of 1827, did not affect any prescriptive right or
title which had, under Ch. 1., j I, of that Regu-
lation, been acquired by any possession of im-
moveable property before Act IX. of 1S71 was
passed, inasmuch as neither by express words
nor by clear implication does there appear any
intention on the part of the Legislature to take
away any such right or title. Sitakam Vasu-
dbv o. Khahderav Balkrishna. Westropp,
C. J., and Melvill, J...L L. Bep. 1 Bom. 286.
1876.
2. ■ Adverse Possession — Peg. V. of
1827— Act XIV, 0/1859.] Some lands in the
village of Shirasgaum, in the Puna Collectorate,
known as "Kolhati Bawa's Inam," originally
belonged to H. H. Scindia. Plaintiff's family
PBESCBIFTION-roBid.
were proved to have been in actual possession of
them from 1841 to 1854. and in constructive pos-
session during their attachment by the Inam
Commissioner from 1854 to 1S63, when, by a
mistake in carrying out the orders of the Bri-
tish Government, the lands passed into the pos-
session of Scindia, and remained with His
Highness till 1872, in which year the British
Government, by exchange of lands, came into
possession. In a suit brought on the 29th July
:87a (i.e., before Act IX of 1871 came into
force, and while Reg. V. of 1B27 and Act XIV.
of 1859 were in force) to recover the lands : —
Held, Regulation V. of 1827, } I, (providing
thirty years as the period within which a suit for
immoveable property might be brought, and as
the period adverse possession during which was
conclusive proof of proprietary right in the pos-
sessor, except in cases of fraud,) was the law
both of limitation and prescription in the Bom-
bay Presidency until the passing of Act XIV.
ofl85g. That Act, hy implication, repealed Re-
gulation V. of 1827, ( I , so far as it was a law
of limitation, but left it untouched so fat as it
was a law of positive prescription.
Therefore, until Regulation V. of 1817, f t,
was repealed by Act IX. of 187 1 on 1st April
1873, though a person, who without title had
been in adverse possession of immoveable pro-
perty for twelve years could, under J 1 , CI. 12,
of Act XIV. of 1S59, resist a suit brought to
recover it from him, he did not acquire a
prescriptive title to it by possession short of
thirty years. Act XIV. of 1859 did not extin-
guish the proprietor's right, but only barred
his remedy, against the person in adverse pos-
Accordingly, if such person lost his possession
and the proprietor regained it, the former, un-
less he sued within six months, under f IS of
Act XIV. of 1859, must fail in a suit to eject the
latter, having no title to stand upon.
The plaintiff, therefore, by his possession
from 1841 to 1863, had not acquired a prescrip-
tive title, under Regulation V. of 1827, { I, and,
having failed to sue for more than six months,
had lost the benefit of his previous possession,
and had failed to establish his title to recover
possession. Rambhat Acnihotri v. The Col-
LFCTOR OF Puna. /Cembali and A". Harridos,
jj L L.Eep. 1 Bom. 892, 1878.
D.gmzed by GoOgle
( 1157 )
DIGEST OF CASES.
{ 1158 )
PRESCRIPTIVE RIGHT -To Maintain
See Maintenance of Bund.
Rah Lallu. Lill DhaRy .. I. L.
Rep. 3 Cal. 776.
PRESENTATION OF CRIMINAL
APPEAL.
See Appeal — Criminal. I.
In the mailer of SuBBA AlTALA...
I. L. Rep. 1 Had. 304
PRESENTATION OF PLAINT— On Day
• on which Court should have te-opened
after Vacation.
See Limitation. 6. 13.
Bishan Chand v. Ahmad Khan
I. L. Rep. 1 AIL 263.
PURRAN C. GHOSE v. MUTTV
Lall.-I. L. Rep. 4 Cal. 00.
PRESIDENCY BANES ACT XL OF
1876-51 17 and 21- Registration of Trans/,
—Rightof Bank to refuse to register Transfer.]
The Bank of Bengal is entitled to refuse t
gister a transfer of shares when the application
is made during the time the transfer books of
the Bank are closed under the powers given by
* 21 of Act IX. of 1876, and after a public noti-
fication in accordance therewith. Though the
Bank may not have given this reason for refus-
ing to register at the time of the application be-
ing made, they are entitled to avail themselves
of it subsequently, when a suit is brought
compel them to register the transfer-
Section 17 of Act XI. of 1876, which entitles
the Bank of Bengal to refuse to register
transfer of shares until payment of any debts
due by the person in whose name the shares
stand, refers only to debts which are presently
payable> therefore, where R. was indebted to
the Bank, and gave bills as security there-
for:—
Held, that the Bank would not be entitled to
refuse, under ) 17, to register a transfer by B.
of his shares during the currency of the bills.
MoTHOORMOHUN ROY 8. BANK OF BENGAL.
Garth, C. J., and.l/nriiB, ] . I. L. Rep. 3 Cal
303 ; 1 Cal. Rep. 607, 1878.
PRESIDENCY MAGISTRATES' ACT
IV. OF 1877— § 39-Public Servant-
Sanction of Government.
See Municipal Commissioner.
Empress v. Municipal Corpora-
tion of Calcutta ..L L.
Rep. 3 Cal. 758.
76
PRESIDENCY MAGISTRATES' ACT
TV. OF 1877— contd.
S 41 — Appeal.] No appeal lies from the
order of a Judge granting leave to prosecute
under § 41 of Act IV. of 1S77, such leave not
being a judgment within the meaning of CI. 15 of
the Charter. In the matter of the Petition of
JanOkev NaTh Rov. Garth, C. J., and Markby,
J I L. Rep. 3 CaL 486, 1877.
§ 167— Appeal —Sentence] The word*
" to imprisonment for a term exceeding six
months, or to fine exceeding Rs. zoo," in $ 167
of the Presidency Magistrates' Act (IV. of 1877)
are confined in their meaning to substantive
sentences, and cannot be extended to include an
award of imprisonment in default of payment of
fine, the operation of which is contingent only
On the fine not being paid. In tkematterof
Jothakam Davav. Innes and Muttusami Ayyar,
JJ L L. Rep. 3 Mad. 30, 1878.
S. C. under Housebreaking.
PRESUMPTION OF DEATH-Hindu and
Mahomedan Law as to — Suit by Rever-
See Evidence. 31.
PaRMESHAR RAI V. BlSltESHAtt
Singh ..I. L. Rep. 1 All.
63.
PRESUMPTION AS TO DOCUMENTS
MORE THAN THIRTY YEARS
OLD — Execution presumed, but no
Authority to execute for another.
See Evidence. 17.
Ubilach Rai v. Dalual Rai.. L
L.Rep. 8 Cal. 667.
PRESUMPTION OF MARRIAGE.
See Mahomedan Law. 3.
Ranee Khujooroonissac Musst.
Rouskun Jehan-.L. Rep.
3 I. A. 291 ; I. L. Rep. 3
CaL 184.
PRESUMPTION IN FAVOUR OF MO-
KUftAKI TENURES — Claim by
Purchaser at Revenue Sale to enhance
Rent.
See Enhancement of Rent. 1.
Purmanuno ». Rookinbe , L L.
Rep. 4 Cal. 798.
Diaxized by Google
( U59 >
DIGrST OF CASES.
( 11 Ki )
PRESUMPTION OF OWNERSHIP OF
BITE OF BO Al).
See Ownership of Site of Road,
Mobaruck Shah ». Toopany...!-
L. Hep, 4 Cal. 206.
PRESUMPTION OF RIGHT TO SCOUR
WATERCOURSE.
Set Artificial Waterconree.
Raheshur Persad 9 Koonj 6e-
hari L. Rep. 6 1. A. 33;
I. L. Rep. 4 Cal. 633.
PRESUMPTION AS TO TITLE TO
BOIL OF PRIVATE OCCUPA-
TION ROAD.
Ste Title to Soil of Road.
Sham Churn 0. Tartney Churn..
I. L. Rep. 1 Cal. 422, 428.
PREVIOUS CONVICTION— Sentence.
See Penal Code, 5 75.
Empress v. Meoha ..I. L. Rep.
1 All. 637.
PRIMOGENITURE.
See Hindu Law — Inheritance—
Primogeniture.
Chowdhry Ckintahak Singh v
MusST. Nowlukko Kon-
wari L.Rep. 2 I. A. £63 ;
I. L. Rep. 1 Cal. 163.
PRINCIPAL AND AGENT— Authority of
Agent to bind Principal by compounding
Criminal Charge against Agent.
Stt Duress.
Moung Shoay Attit. KoByaw..
L. Rep. 3 I. A. 61 ; I. L.
Rep. 1 Cal. 330.
11 ■ Mutual Accounts — Limitation.
See Limitation. 34.
Watson v. Aga Mehedei She-
razee. ..L.Rcp. II. A. 346.
1. Liability of Master for Wrongful
Act of his Servant-'] In an action to recover
damages from the defendants for obstructing
the plaintiff's right of ingress and egress to a
forest, and his right of obtaining and removing
timber therefrom, held, on the evidence, that
the obstruction was not caused by the persons
who were agents of the defendants for the
purpose of working in the forest, or doing any
class of acts analogous to those complained of,
PRINCIPAL AND AGENT- re«r</.
and that the defendants were not shown to have
knowingly adopted or ratified those acts, and
that the acts were not shown to hare beea
committed for their benefit.
A principal is answerable for the acts of his
agent in the course of his master's business and
for his master's benefit, and for every such
wrong of the servant or agent as is committed
in the course of the service and for the master's)
benefit. Though the master may not have
authorized the act, if he has put the agent it)
his place to do a particular class of acts, he
must be answerable for the manner in which
that agent has conducted himself in doing the
business which it was the act of his master to
place him in. Bombay Eurmah Tradikc
Company, Limited, v. MirzA MAHOMED Ally
Shu.izec L. Rep. B I. A. 180, 1878 ;
L L. Rep. 4 Cal. 116.
S. C. under Damages. 4.
2. Guarantor — Custom — Liability]
In a suit to recover Rs. 14,000, which the
plaintiffs alleged that they had paid as guaran-
tors of the defendant, being the loss sustained
by his vendors in consequence of the fall ol
the price of certain cotton sold, it appeared
that, by a local custom, the defendant, as a
stranger to the locality of jV., could only trade
through a resident merchant, the name of whom
by the custom entered as principal in the
transaction, to whom the credit is given, and
ith whom the final settlement of the trans-
ition is effected, as the "arath"of such
ranger ; that the defendant made extensive
ansactions in N. through the plaintiffs, re-
presenting them as his "araths," and delivered
them " pauris," or memoranda of the trans-
ions, according to the custom ; that in respect
of the transaction in question the defendant did
deliver to the plaintiff a " pauri" (though he
had made use of their name), and that the
plaintiff had represented to the vendors that,
not holding a "pauri," they could not render
themselves responsible ; but that on reference
to a panchayet, it was decided that the plaintiffs
ought to pay, and they did pay, the said
Rs. 14,000 to the vendors : —
Held, that the defendant was liable. He had
the authority of the plaintiffs to use their name,
so used it with their concurrence, and had
thereby authorized the payment as aforesaid by
the plaintiffs, who, according to the custom
Digitized byGOO^Ie
( nei )
DIGEST OF CASES.
( 1168 )
FRXVOXFAL AND AOBNX-«*W.
were undoubtedly liable to the vendors. Sa-
mebr Mull v. Ckaoanlal.L. Bop. 8 I. A.
S38 ; I. L. K. S Cal. 421, 1879
PRINCIPAL AND 6URETY-Ci*ri of the
Small Cause Court— Bond for the Performnnce of
Duties of Office— Liability of Surety— Act XI. of
1865, f 51— Small Cause Court Judge— Subordi-
nate Judge.'] The defendant and one Church,
then Clerk of the Small Cause Court at Allaha-
bad, on the zoth of Match 1871, entered into a
bond to Mr Tyrrell, the then Judge of that
Court, as well as to his successors in office, in a
certain sum as security forthe true and faithful
performance by Church of his duties as Clerk of
the said Court, and for his well and truly ac-
counting for all moneys entrusted to his keeping
as such Clerk of the Court- By a notification of
the 6th of June 1866, the Government of the
N.W. Provinces permanently invested the Judge
of the Small Cause Court at Allahabad with the
powers of a Principal SudderAmin. Church was
appointed Clerk of the Court in 1S69 by the. then
Judge of the Court, who was then officiating as
Judge of the Small Cause Court with the powers
of a Principal Sudder Amin, or Subordinate
Judge, under { 51 of Act XI. of 1865. It did
not appear that Mr.- Tyrrell had been invested
with the powers of a Principal Sudder Amin, Or
Subordinate Judge, otherwise than under the
above notification; but Mr. Rawlins, who was
officiating as Judge of the Small Cause Court at
the time of the misappropriations by Church,
hereinafter mentioned, had been so invested by
a special notification.
There had not been at any time any separate
office or establishment for the purpose of cases
tried by the Judge of the Small Cause Court as
Subordinate Judge ; and Church from the time
of his appointment until he absconded, performed
the duties of Clerk of the Court in all cases,
whether they were tried by the Judge in the
Small Cause Court, or on the Subordinate
Judge's side, and received the moneys paid or
realized in respect of decrees passed on both
sides of the Court. In a suit brought against the
defendant upon his security bond to rr
amount therein mentioned in consequence of
Church having misappropriated part of the
proceeds of certain sates in execution of decree:
passed by the Judge of the Small Cause Court
on the Subordinate Judge side of the Court .—
Held, 1st, that the Government by permanent
ly investing the Judges of the Small Cause
PRINCIPAL AND SUBET Y—contd.
Court with the powers of a Principal Sudder
Amin, by the notification of the 6th June [866,
had not exceeded its power, or contravened the
law, though the occasional investiture of Small
Cause Court Judges by name from time to time
with the powers ot a Principal Sudder Amin
may have been the mode of procedure contem-
plated by the Legislature as the one likely to be
ordinarily adopted ; and, therefore, that by that
notification, the powers of a Principal Sudder
Amin were legally conferred on Mr. Tyrrell, wbo
was officiating as Small Cause Court Judge at
the date of the execution of the bond. Mussa-
mat Bijee Koer v. Rat Damodar Doss {H. C.
Rep. N. W. P. 1873, p. 55,) dissented from.
2nd. — The grant of the powers of a Principal
Sudder Amin, or Subordinate Judge, to tho
Judge of the Small Cause Court did not con-
stitute him a Subordinate Judge, or create a
Court distinct from that of the Small Cause
Court. The Judge of the Small Cause Court
when exercising the powers of a Subordinate
Judge was still Judge of the Small Cause Court .
decrees passed by him in the exercise of those
powers were decrees of the Small Cause Court ;
moneys paid into Court under those decrees were
paid into the Small Cause Court ; and, under
I 45 of Act XI. of 1S65, it was the duty of the
Clerk of the Court to take charge and keep an
account of them ;and the defendant, therefore-,
Church's security, was liable for the misap-
propriation of those moneys by Church.
3rd. — Even if Mr. Tyrrell had not been, at
the date of the bond, invested with the powers
of a Subordinate Judge, Church, as Clerk of
the Court, would nevertheless have been bound
to receive, take charge, and keep accounts of
moneys paid or realized under decrees of any
of his successors in office invested with such
powers, and the defendant, as Church's surety.
would have been liable for his misappropriation
of any of those moneys. Crosthwaite v-
HAMILTON. Turner, C.J. (OfFg.), Pearson and
OtdfUld, ]J L L> Rep. 1 All. 87, 1878.
2. Citing Time— Interest paid in Ad-
vance—Discharge of Surety.'] As a general rule,
the acceptance of interest in advance by the ere-
ditor operates as a giving of time to the prin-
cipal debtor, and consequently as a discharge to
the surety, unless the latter knows of, and
consents to, the advance interest being taken.
The question whether an advance of interest
operates as a giving of time to the principal
D,gltlzed by G00gle
t lies )
DIGEST OF CASES.
PRINCIPAL AND SUKETY-w-.M.
debtor is a mixed question of law and fact.
PROTAB ChUKDER DaSS 0. GoUF ChUNDER
Rov. Garth, C.J., and McDonnell, J...J. L. Rep .
4 Cfil. 132 ; 3 CaJ. Rep. 466, 1878.
S. Execution against Surety — Interest
—Giving Time.} E. Sued M..B., C, and P., tot
money due for goods supplied. Separate soleh.
namahs were filed by each of the four defend-
ants, in which they admitted the debt, and eacl
undertook to pay one- fourth thereof, with interest
by instalments, and each further agreed that i
the other three should make default and thi
amount due by them should not be realized by
the sale of their property, then he should be liable
to make good the deficiency. A decree
passed by the Court in accordance with the t
Of the Solehnamah. C. and P. each paid up their
fourth-shares, but M. and B, havingfailed to pay,
X. applied for execution against C. and P. ii
spect of the liability of M. and B.-.—Held, thi
the absence of proof that the whole property of
B. had been exhausted, R.'s application coulc
not be allowed.
Where a decree for payment of a certain sun
with interest was passed against certain defend
ants as principal debtors, and against othe:
defendants as sureties, and it appeared that the
decree-holder had allowed time to the prin
debtors for the purpose of increasing the am
of interest : —
Held, that the decree-holder was not entitled
to interest after the time when he might and ought
to have put up the property of the principal debt-
or for sale, when possibly it might have realized
the whole of the debt then due. Rahanund
Koondoo 11. Ckowdhry Soonder Narain
Sarukcv.,.1. L. Rep. 4 Cal. 331, 1878, P. C-
4. Accommodation Acceptor — Discharge
of Surety— Equitable Mortgage -Trust Deed/or
Benefit of Creditors— Eventual Remedy of Surety
-Contract Act IX. of i&72,$$ 131,134,13$, i39-
Evidence Actl. 0/1873, §92.] In 1S71 and 1873
N. P. drew certain bills of exchange on the de-
fendant, which were accepted by the defendant
for the accommodation of ,V. P., and endorsed by
N. P. to the plaintiffs. In May 1876 N. P., by
letter addressed and sent to the defendant, agreed
(o execute a mortgage to the defendant, of cer,
tain property consisting of a share in a Privy
Council decree, by way of collateral security and
in order to keep the defendant safe, and for the
payment of the amount of the said bills ; and in
PRINCIPAL AND BURET*— contd.
the mean time to hold the said share at tbe
disposal of the defendant, his successors and
assigns.
In June 1876, N. P. became unable to meet
his liabilities, and the plaintiffs called on the
defendant to pay the amount due on the bills-
In August 1876, and before the defendant had
paid any of the bills, N. P. executed a deed of
trust and assignment in favour of the Official
Trustee, by which he purported to assign all hi)
property, including his estate and interest in the
Privy Council decree, to the Official Trustee on
trust to realize the same, and divide the proceeds
equally among all the creditors of JV. P. The
deed contained no composition with, or release
by, the creditors, nor any covenant on their part
not to sue. The plaintiffs executed this deed
after it had been executed by some of the other
creditors. In a suit by the plaintiff against tbe
defendant as acceptor of tbe bills ; —
held, that , 13a of the Contract Act IX. of
1872 was not applicable. The liability which is
undertaken by the acceptor and drawer of a bill
is in no sense a joint liability. Though each
contracts to pay the same sum of money, yet they
contract severally, in different ways and subject
to different conditions, and it is not because the
law of India allows several persons who have
undeitaken different liabilities to be joined a*
defendants in the same suit that they are to be
considered as having undertaken a joint liability.
The defendant, therefore, was not prohibited
by the provisions of § 132 of the Contract Act,
or of f 02 of the Evidence Act 1. of 1871, from
pleading that he was an accommodation acceptor
Only.
But that the letter of May 1876 constituted a
good equitable mortgage, and such a substantial
consideration for what were originally the defend-
ant's accommodation acceptances, as to prevent
his being thereafter in the position of a mere
surety, or entitled as against the plaintiffs, who
had advanced their money in good faith on the
security of the bills, to the equitable rights of a
But even assuming that the defendant was a
mere surety, the execution of the trust deed by
the plaintiffs did not amount to a giving of time,
Or a composition or a covenant not to sue within
the meaning of | 135 of the Contract Act IX- of
1872 ; and, though the execution of the trust deed
by the plaintiffs would, according to the English
law, have discharged the defendant as surely, as
D,„i„.db»Googlc
{ 1106 )
DIGEST OF CASES.
( "«J )
PRINOIPAL AJTD SURETY - eontd.
being an act inconsistent with the rights of the
surety, yet, under f 139 of the Contract Act IX.
of 1872, before the act of a creditor can operate
as a discharge of a surety, it is necessary to look
further and see whether the eventual remedy of
the surety against the principal is impaired; and
that, under the circumstances of this case,
defendant's eventual remedies against .V. P. and
bis property, so far from being impaired by the
execution of the trust deed by the plaintiffs, were
materially improved thereby ; and, therefore,
even assuming the defendant to have been in the
position of a surety, the execution of the trust
deed did operate to discharge him. Pogosb v.
The Bank of Bengal. Garth, C.J. , and Milter,
) L I. Rep 3 Cal. 174, 1877.
"PRIOR TO DECREE "-Suit referred to
Commissioner to take Accounts.
See Civil Procedure Code, Act X. of
1877, § 3.
RuSTOUjI tr. KbSSOWJI ..L L.
Bap. 8 Bom. 161.
PRIOR MORTGAGEE— Nature of Security
Shri
: «. Pethb.-.I. L.
Sop. 2 Bom. 668.
PRIORITY.
See Constructive Fraud. 1.
Salamat Ali v. Buck Singh.,,
I. L. Rep. 1 All. 803.
Between Attaching Creditors.
See Execution of Decree. 7.
Nahandasi'.Bai Manchiia.. 1. L.
Rep. 8 Bom. 217.
See Limitation., 64.
RauKishanv. Bhawani Das... I.
L. Rep. 1 All. 333,
See Registration. 30.
Ahmed Buksii d. Gobindi ..1 1.
Rep. 2 All. 216.
See Sale in Execution of Decree. 14.
Mani
SlNuf
. Par/
«...!,
L. Rep. 1 All. 727.
- Between Mortgagee in Possession under
Registered Mortgage (without Notice o(
Prior Unregistered Mortgage) and under
Purchase at Court Sale in Execution of
Money Decree obtained by Prior Mort-
gagee, and such Prior Mortgagee.
PRIORITY-™,/,..
See Mortgage- 8.
TuKARAii v. Ranch an dm.. I. L
Rep. 1 Bom. 143.
Between Mortgagee being also Purchaser
at Sale in Execution of Decree on his
Mortgage, and Subsequent Mortgagee
under Registered Mortgage also being
Purchaser under similar Decree.
See Mortgage. 20,
Venkatanarasamkah «. Ramiah.
I. L. Rep. 2 Mad. 108.
Between Purchaser nt Sale in Execution of
Decree on Mortgage, and Purchaser
from Prior Grantee from Mortgagor.
S/e Mortgage. 8.
Muthora Nath e. Chundermo-
nev.,.1. L, Rep. 4 Cal. 817.
Of Registered Mortgage over Subsequent
Registered Sale with Possession.
See Registration. 3.
bee Mortgage. 3.
Shkingapure e. Pethe I. L.
Rep. 2 Bom. 662-
Between Registered and Unregistered
Deeds of which Registration Unneces-
sary.
See Registration. 20.
Ahmad Buksh v. Gobindi.-X. L
Rep. 2 All. 216.
Between Registered Deed of which Regis-
tration Compulsory, and Unregistered
Deed of which Registration Optional un-
der Act VIII. of 1S71.
See Registration. 20. 26. 30.
B1101.A Nath t. Baldeo ..I. L.
Rep. 2 All. 198.
Ooghra Sing t>. Ablakhi Kooer.
I. L. Rep. 4. Cal. SS6.
Gang A Rau v. Bass; ..I. L. Rep.
2 All. 431.
Between Registered Deed under Act XX.
of 1866 and Deed which might have been,
but was not Registered under Act XIX.
of 1843.
See Registration. 82.
Khandu s. Tarachavd ..I. L.
Rep. 1 Bom. 674.
v Google
r
< 1187 )
DIGEST OF CASES.
( 1168 )
PRISONS ACT XXVI. OP 1870-§§ 3, 45,
54 — Entering a Havalat with, Intent to convey
Food to a Prisoner.] The accused came to a
havalat where a prisoner under trial was confined,
and asked the head constable on guard to be
allowed to give food to the prisoner, and was
refused. Shortly after this, the accused was
found on the top of the havalat wall, where there
was a platform for the police sentry, with the
food which he attempted to give.tothe prisoner,
and was arrested, and subsequently charged with,
and convicted of, house-trespass, under f 448
of the Penal Code, by the Magistrate. On ap-
peal the Session Judge reversed the conviction
and sentence, and the accused was then, on the
same facts, subsequently tried on a charge pre-
ferred under { 45 of the Prisons Act XXVI, of
1870, and convicted and sentenced; but on ap-
peal the Session Judge again reversed the con-
viction, on the ground that he had been pre-
viously tried for the same offence, and therefore
that the subsequent conviction and sentence
must be quashed, under f 460 of the Criminal
Procedure Code : —
Held by Stuart, C.J., that the former trial and
acquittal of the accused was no bar to the second
trial. By the second paragraph of J 460 of the
Criminal Procedure Code, it is provided that a
person convicted or acquitted of any offence may
afterwards be tried for any other offence for
which a separate charge might have been made
against him on the former trial. Under ( 454
of that Code, which provides that " if in one set
of facts, so connected together as to form the
same transaction, more offences than one are
committed by the same person, he may be
charged with, and tried for, every such offence
. that this may be done "afterwards." The
Session Judge's objection, therefore, of res judi-
cata or autrefois acquit, failed, and the second
prosecution and all that followed on it were
perfectly valid.
But held on the merits, that th<
must be set aside,
His Lordship was " rather of opinii
Aavalat was not a prison within the meaning of
f 3 of Act XXVI. of 1870," but assuming that
it was, then the introduction of food into the
hutalat in the way alleged in this case was
an offence against (he prison regulations, un
it was shown to be against some prohibitory
or regulation. But there was nothing of that
character either in Act XXVI. of
rules for the management of prisoners adopted
PBIBONB ACT XXVL OF 1870wo»rA
under the Act According to the principle*
upon which statute laws are usually interpreted,
the word " article" in f 45, CI. 3, of Act XXVI.
of 1S70, would mean something of the same
kind with a letter, such as other documents,
or a newspaper, book, or other matter brought
to the accused in a printed or written form,
and not food ; and the prison regulations merely
prescribed the diet that was to be given to
ifferent classes of prisoners, without any other
leaning in a penal sense, and there was no-
here in any of them any rule or order against
ich a contribution tn a prisoner's food as had
;en attempted in the present case. The accus-
ed, therefore, was not guilty of an offence under
j 45 of Act XXVI. of- 1870, nor was he gnilty of
tal trespass, nor of house trespass under
the Penal Code, the intent to commit an offenci
being essential in both cases.
By Spanbie, J .— That the accused was guilty on
the facts found, of criminal trespass, and also of
an offence under i 45 of Act XXVI. of 1870. A
havalat is, under the rules issued by the Local Go-
vernment under i 54 of that Act, a fifth class gaol,
within the meaning of prison as defined by f 3.
By Qldfield, J.— That'the word prison in 1 3 of
Act XXVI. of 1870 includes a havalat in which
prisoners under trial are confined.
But that the regulations for the management
and discipline of prisoners, issued under the
authority of Act XXVI. of 1870, merely deal
with the articles of food which such prisoners
are to receive from the prison authorities ; and
contain no prohibition against their receiving
any other supplies of food, and therefore tbat
the conviction under f 45 of that Act could not
be maintained, nor, consequently, could there
be a conviction of house trespass or criminal
trespass. Empress 7. Lalai I. L. Sep. 3.
AU. SOI, 1879.
PRIVATE ALIENATION OF LAND
AFTER ATTACHMENT — Attach-
ment not properly notified.
See Oivil Procedure Code, Act
vnXofl869, |240.1.
Nur Ahmad v- Altaf Au X.
L. Rep. S AIL 68.
PRIVATE OCCUPATION B.0AD— Pre-
sumption as to Title to Soil of.
See Title to Soil of Road.
Sham Churn v. Tasihsv Churn.
I. L. Hep. 1 CaL 42a, 438.
D.gmzed by G00gle
( 1160 )
DIGEST OF CASES:
( 1170 )
PRIVATE PBOSECT/TOB— Right of— to
apply for Revision in case of Acquittal.
See Criminal Procedure Code, Act
X. of 1873, § 307- 1. 3. 9.
Hardeo ..I. L. Hep. 1 All. 139.
Aurokiam...I. L. Rep, 3 Mad.
88.
NarainDas I. L. Bep. 1
Alt. 610.
Sukho v. Durga Prasad I. L.
Bep. 3 All. 448.
PRIVILEGE— Qualified.
St* LibeL 3.
Hinde ». Bai.dhv.. I. L. [Rep. E
Mad. 13.
PRIVILEGE FROM ARREST -Jwrf ...
Ezecution of Decree of Calcutta Court of Small
Causes— Writ (/Habeas Corpus— Power of Nig h
Court on Return to, to inquire into Validity of
Commitment by Small Cause Court— Affidavits—
Practice— Terms imposed on Petitioner.] The
Small Cause Court at Calcutta is not independent
of the jurisdiction of the High Court,
Court of co-ordinate jurisdiction with the High
Court, but is an inferior Court and subordini
to the control of the High Court, which has
power to examine into and determine on the
validity of orders of the Small Cause Court,
which are brought before it regularly for that
purpose.
Therefore, where on a prisoner being brought
before the High Court un a writ of habeas corjit
ad subjiciendum, the return of the jailor state
that the prisoner was detained under a warrai
of arrest issued in execution of a decree of the
Small Cause Court : —
Held, that the return was not conclusive; that
it was not only justifiable, but absolutely, neces-
sary, in a case of this kind, that the Court should
look at affidavits to ascertain all the necessary
facts not disclosed by the commitment itself, and
that the petitioner was therefore entitled to show
by affidavits that he was privileged from arrest at
the time that he was arrested ; and it appearing
from the affidavits filed by the petitioner, that
on the day of his arrest he was attending the
Small Cause Court for the purpose of defending
a suit set down for hearing on that day before
the Third Judge, as the agent of his father, and
also under a subpana issued and directed to him
at the instance of his father; that on his arrival
in the Third Judge's Court he found that the
Judge was trying the undefended cases, and he
PRIVILEGE FBOK ARREST ~ contd.
therefore went downstairs to call his pleader,
but not finding him, returned and waited in the
Third Judge's Court till 3 p.m., when he disco-
vered that the suit had already been decided
ex parte; whereupon, after considering shortly
what to do. but before the return of the Third
Judge from tiffin, he left the Court and imme-
diately came downstairs, and was arrested as
soon as he left the main gate of the Small
Cause Court premises, and as be was going
towards his house:- Held, that under the cir.
cumstances the prisoner was privileged from
arrest, and that even supposing the prisoner to
have stayed longer in Court, after helearnl that the
case was over, than was absolutely necessary, that
fact alone did not deprive him of his privilege.
Held also, that it was incumbent on the
applicant in such cases to come at once to the
Court without delay; and the prisoner having
been arrested two months before the application
to the High Court, that Court would not have
interfered on habeas corpus, but that the prison.
ers affidavit sufficiently accounted for the
delay, and showed that the interval had been
consumed by fruitless applications to the Small
Cause Court for release.
But the privilege set up by the prisoner being
for the benefit of the public.and not for his own
personal advantage, the Court required him
before his discharge to give an undertaking not
to bring an action for damages for illega fairest,
or false imprisonment, against the Judges of the
Small Cause Court, the bailiff, the jailor, or the
judgment creditor. Jn the matter of Omrjto-
lall Dev. Phear, J...L L. Bep. 1 0*1. 78,
1873.
S.C. under Small Cause Court, Pre-
sidency Town. 6.
PRIVILEGED COMMUNICATIONS.
See Inspection. 3,
Wallace & Co. *. Jefferson... I,
L. Rep. 3 Bom. 4S3.
Libel— Qualified Privilege.
See Libel. 1. 2.
Shepherd v. Trustees of Port
of Bombay I, L. Bep. 1
Bom. 133, 477.
Hinde 0. Bawdry... I, L. Bep. S
Mad. 13.
Letter " without prejudice.''^ " ft was a
very improper thing for the defendant's attor.
D,„i„.db»Googlc
DIGEST OF CASES.
( 1172 )
PRIVILEGED COMMUNICATIONS
amid.
ney to use a letter in evidence which was writ,
ten ' without prejudice,' and obviously in the
course of negotiation between the attorneys on
both sides For an amicable adjustment of the
plaintiff's claim.
" Communications such as these are clearly
inadmissible in evidence. They are excluded
on grounds of public policy and convenience ;
and the rule of law which excludes them is
binding on arbitrators, as upon Courts of Jus-
tice, notwithstanding j i of the Evidence Act I.
of 1872." Per Garth, C. J., in Howard v.
Wilson I. L.Rep. 4 CaL 2S1,
339; 3 Gal. Rep. 488,
1S7S.
S. C. under Appeal -Civil. 35.
3. Evidence Act I. of 1872, § 126 —
Professional Communications.] Communica-
tions to be protected by § 126 of the Indian
Evidence Act (I. of iSya) must be confidential
or private. Where the defendants, at an inter-
view at which the plaintiff was present, admit-
ted their partnership to their attorney, who was
then also acting as attorney for the plaintiff ; —
Held, that the attorney was not precluded by
} 126 of the Evidence Act (I. of 1S72) from
giving evidence of the admission to him; 1st, ,
because the admission, having been made in
the presence and hearing of the plaintiff, could
not be regarded as private or confidential;
2ndly, because those communications were not
made to the attorney exclusively in his charac-
ter as attorney For the defendants, but were ad.
dressed to him quite as much as in his capacity
as attorney for the plaintiff. Memon Hajee
Haroon Mahomed v. Molvi Abdul Karim.
Westropp, C.J., and Sargent, J. ..I. L. Rep.
8 Bom. SI, 1878.
PRIVITY OF ESTATE -Between Superior
and Inferior Holders.
See Kabulayft'.dfir Khot.
Krishnajik. Ramchandra...!. L.
Rep. 1 Bom. 70.
PRIVY COTJNCIL-«*W.
Appeal to -Admitted by Commissioner of
Seetapore — Judicial Commissioner —
"Court of Highest Jurisdiction in Pro-
See Appeal to the Privy Council. 2.
■ Appeal from Order
PRIVY COUNCIL
granting Appeal
See Lettere Patent (Calcutta), 1885,
CI. 15. 1.
Mowla Buksh e. Kishfn Per.
tab Sahi . I. L.Rep. ICal.
10S.
Rep. 4 I. A. 178.
Appeal to— Dismissal of— for Default in
Deposit of Security.
See Appeal to thePrivy Council. 4.
Thakoor Kapilnath Singh *.
The Government L L.
Rep. 1 CaL 143.
Appeal to — from Interlocutory Order.
Sec Appeal to the Privy Council.
3. 5.
Paj.ah Dhari Rai b. Radha Par-
sad Singh. .XL. Rep. 2 AH.
65.
Tetleyt. Jai Shankar I. L.
Rep. 1 All. 726.
Appeal to— from Order of Remand.
See Appeal to the Privy Council. 5.
. Tetlev v. Jai Shankar I. L.
Rep. 1 All. 726.
Appeal to— Substantial Question of Law.
See Act VL of 1874, § 5.1.
Feda Hossein L L. Rep. 1
CaL 431.
Appeal to — Substantial Question of Law
arising on the Evidence.
See Act VI. of 1874 , 1 5. 2.
MobAN r. Mirru Bibee, I. L.
Rep. 2 CaL 238.
Appealable Value— Valuation for purposes
of Stamp Law.
See Appeal to the Privy Council. 1.
Baboo I.ekhraj Rov d. Kanhva
SmcH...L.Rep. II. A. 317.
Appeal to— Rehearing of.
See Practice— Privy Council. 4.
Maharajah Pertab Nariak
Singh eSuBHAO Korr .XL.
Rep. 4 Cal. 184; L. Rep. S
I. A. 171.
Diaxized by Google
{
.73 )
DIGEST OF CASES.
PRIVY COUNCIL-™*/.*.
Concurrent Findings on Facts— Practice.
See Practice— Privy Council. 1. 2.
Manoo Lai.L v- Lali. Choonee
Lall...L. Rep. 1 I. A. 144.
Paulieh ;■- Fauliem ..L. Rep. 4
I. A. 109 ; I. L. Rep. 1 Mad.
262.
■ Leave to Appeal to — Granted ultra Vires —
See Practice— Civil 1.
Gajaduur u. Widows of Emam
Au...L.Rep. 2 I. A. 205.
— — Limitation for Petition for Leave to Appeal
to — Exclusion of Time necessary to obtain
Copy of Judgment.
See limitation. 90.
Jawahir Lal it. Naraim Dass .,
I. L. Eep. 1 All. 644.
Practice — Leave to Appeal granted ultra
See Practice— Civil. I.
i heard ex far
-Re-
See Practice — Privy Council. 4.
Maharaja Pertab N. Singh ■?.
Maharajah Subhao Koer...
L. Rep. S I. A. 171.
- Practice— Question Referred to Full Bench
answered not in Form of Decree or
Interlocutory Order — Respondent's Right
to object without Cross- Appeal.
See Practice — Privy Council. 3.
Phoolbas Kooer jr. Lala Joge-
shur.-.L. Rep. 3 I. A. 7:
I. L. Rep. 1 Cal. 226.
-Special Leave to Appeal — Obtained on
other Grounds— Objection to Decree ap-
pealed against as Declaratory, precluded.
See Practice— Privy Council 9.
She(
i Rai
. Muss
Da-
kho.L. Rep. 0 I. A. 87;
I. L. Rep. 1 AIL 688.
- Special Leave to Appeal — Material Mis.
statements in Petition for.
See Bengal Act VIII. of 1869, % 8,
ci. a.
Rah Sabuk Bose v. Mosmohi-
nee Dosser. L. Rep. SI
A. 71.
70
PRIVY COUNCIL-«Hrrf.
Special Leave to Appeal — nunc pro tune.
See Practice— Civil. 1.
Gajadhur v. Widows of Exam
A li L. Rep. 2 1. A 502
- Special Leave to Appeal — Re-opening
Whole Case on Application at Hearing.
See Praetice-Privy Council. 7.
Thakur Darriao Singh v. Tha-
kuk Davi Singh... L. Rep. 1
I. A. 1.
Special Leave to Appeal— Review of Re-
iusal to Register.
See Practice— Privy Council. 8.
Meer Reeasat Hossein o. Hadji
Aedoollah... L. Rep. II. A.
72.
Special Leave to Appeal —Valuation of
Consolidated Suits.
See Practice— Privy Council. 6.
Kristo Saha v. Huruonee ...Li
Rep. 1 L A.84,
PROBATE— Amendment of.
see Probate. 4.
- Attestation of Will— Signature Necessary
— Mark Insufficient.
See Indian Succession Act X. of
lb65, § 60, CI. 3.
Fer\anoez o. Alves ... L L.
Rep. 3 Bom. 382.
-Creditors of Alleged Heir, Right of, to
oppose.
See Probate. 6.
- Document Referring to Will — Memoranda
in Testator's Handwriting.
See Probate. S.
- Executor, Title of.
See Probate. 2.
- Granted subsequent to Decree— Creditor's
Suit against Executor to satisfy Decree
out of Property of Deceased.
See Person taking Possession of
Estate of a Deceased Hindu.
Prosunno Chunohr v. Krihto
Chvtunmo I. L. Rep. 4
Cal. 842.
Digitized byGOOC^Ie
( iro )
DIGEST OF CASES.
( WB )
PROBATE— contd.
Renunciation of— Proof of Execution of
Will in Court.
See Hindu Law— Will. 3.
, Muni
M.
Revocation of.
Set Probate. 3.
of Will of Hindu Widow.
See Probate. 1.
1. Application for— Rights ef Executors
— Devisees and Legatees— Hindu Widoa.\ Upon
an application for probate of a will, as long as it
is made bona fide, it is not the province of the
Court to go into questions of title with reference
to the property of which the will purports to
Since the passing of the Succession Act (X. of
1S65) no executor can make title to any pro-
perty of the testator, nor sue for or claim any
such property, nor collect or pay debts, orother.
wise intermeddle with the affairs of the testator,
without obtaining probate of the will.
Nor can persons who may be interested under
the will make any title, or attempt to enforce
their right, unless probate has first been granted ;
and, on the other hand, the grant of probate to
the executor does not confer on him any title to
property which the testator had no power to
dispose of.
/(Vrf.'therefore, that probate should be granted
of the will of a Hindu widow, though she may
have affected to dispose of property in which
she had not more than a widow's estate. Behary
Lull Sandvall * Juooo MoHUK. Garfh,C-J;
and McDonnell, ] I, L. Rep. 4 Cal. 1 ;
2 Cal. Rep. 422, 1878.
8. Act XIII, of ISjS—XuU 4 of Rules
of High Court of 12nd June 1875.J Act XIII.
of 1875 does not empower the High Court to
grant probate limited to property in any province
or presidency, in cases where an unlimited grant
had been made extending only to property in
another province or presidency before the
passing of the Act.
Per Macpherson, J.— Rule** of the Rules of
22nd June 1875 (15 Beng. L. Rep, High Court
Rules, p. io) as to grants of probate, only applies
to giants of the class mentioned in Rule I, i.e.,
PROBATE— contd.
only to cases in which the application for probate
is made alter the 1st April 1875, and not to
cases in which the application was made before
that date. In the Goods of SiAAUfiCltUVM Mt/L-
LtCK. Garth, C.J., and Macpherson, J I. L.
Rep. 1 Cal. S3, 1875.
3. Proceedings for impeaching Probate
—Act X. of 1865, {9 188-242.] Thegrantof
probate Is the decree of a Court which no other
Court can set aside except for fraud or want of
jurisdiction,
It is conclusive as to the genuineness of the
will , which cannot be thereafter questioned in a
civil suit in which the will is relied upon.
When granted, the probate operates upon the
whole estate, and establishes the will from the
death of the testator, and renders valid all
intermediate acts of the executor as such.
The proper course, if it is suggested that the
probate has been wrongly granted, is to apply to
the District Judge to revoke the probate, which
can be revoked on any of the grounds mentioned
in I 234 of Act X. of 1865. The Judge, on such
application being made, should direct notice to be
given to the executor, and all persons interested
under the will, or claiming to have any interest in
the estate of the deceased. The executor will be
the plaintiff in the regular suit which the Judge
will then have to try (j 261). Where there has
been already full inquiry as to the genuineness
of the will, the Judge would have a right to take
the previous grant of probate as pritnA facie
evidence of the will, and so shift the onus on to
the objector. But If there has been no previous
contention, and the will has only been proved
summarily and ex parte, the Judge Ought, in or-
dinary cases, to have the will regularly proved
afresh. When the applicant for probate is about
to prove a will in common form, and a caveat is
put in, unless the parties desire to proceed at once
to trial, a postponement should be granted, so that
there may be a formal trial of the matter on all
the evidence that either side can adduce.
Semble—A person interested by assignment in
the estate of a deceased, where a will has been
set up and proved, at variance with his interests,
may apply to revoke the probate. Baijnatk
Shahai v. Desputty Singh (1. L. Rep. 2 Cal. 2C8.
S, C. 25 W. Rep. 489) distinguished. KoxOL-
LOCHUN DUTT1>. NlLKVTTUM MuNDLE. Uatkby
™&Pri„s,p, JJ I. L. Rep. 4 Cal. 360; 4
Cal. Rep. 175, 1S78.
D.gmzed by GoOgle
DIGEST OF CASES.
PROBATE -»*«.
4. Wilt-Amendment of Probate— Act
X. of 1865, § 232.] The testator's will, as origi-
nally drawn up, contained a bequest to- George
Barney White, the testator intending to- bequeath
to George Barney Ward. Before the will was
executed the mistake was observed, and the
word "White" Was struck through: with: a pen,
and the word "Ward" written above, and the
alteration was initialled by the attesting witness-
es, but not by the testator. The probate of
the will contained the word "White" only.
On a motion of the affidavit of one of the attest-
ing witnesses verifying the above facts, the
probate was amended by inserting tbe word
"Ward" instead of "White." In- the Goods of
White, ftmtiflx, J I. L. Hep. 4 Col.
682, 1878.
- wui -
indti
Handwriting — Do m idled Scotch man — Document
referring to Will.) After letters of administra.
tion with the will annexed had been granted, the
administrator found a book containing memo-
randa, in the testator's handwriting, made after
the date of the will, and directing certain dis-
positions of his property. One entry referred
directly to tbe will. The testator was a domi-
ciled Scotchman.
Held — on a petition by the administrator that
it might be decided whether the entries were
good and valid testamentary documents,, and if
so, that they mightbe admitted to probate— that
the memoranda were not testamentary docu-
ments, and probate of them was therefore refus-
ed. In the Goods of Sir j. Wemyss. Pontifex,
J I. L. Rep. 4 Cal. 721,1879.
8. Application for Probate — Creditors
cf Alleged Heir, Sight of, to oppose— Act X.of 1865,
, J50.] A., a Hindu testator, died, leaving B„
alleged to be his adoptive son, andC, who would
be his heir in default of adoption. On applica-
tion made by B. far probate of A.'s will after the
usual notices, the creditors of C. came in and
opposed the grant : —
Held, that under the Succession Act X. of
1865 as made applicable to Hindus by Act XXI.
of 187O, the creditors were not parties " having
any interest In the estate of the deceased,"
within the meaning of § 250 of the former Act,
and were not, therefore, entitled to oppose the
grant of probate. In the matter of the Petition
of Despl'ttv SlHOH. Kemp and Birch, JJ...J.
L. Rep. 2 Cal. 308, 1878. '■
See Court Fees. 9.
Pn the Goorf»(/Ri'SHTC)N...I. L.
Rep. 8 Cal. 736.
On Probate taken out after Court Fees
Act came into Operation — Duty paid on
previous Grant of Probate.
See Court Fees. 8.
In the Goods o/Caspek...I. Li
Rep. 3 Cal. 788.
1. Will— Court Fees Act Vlt. 0/1870,
Sehed. I., CI. 11— Act XVIII. 0/1869, f IZ- -An-
nuity— Value.'] For the purpose of ascertain-
ing the probate duty payable in respect of an
annuity, the word ■' value" in CI. 1 1, Schedule
of the Court Fees Act VII. of 1870 must be
taken to be the market value, and not ten times-
the amount of the annual payment, by analogy
to ( iz of Act XVIII. of 1869, as the provisions
of that section are therein expressly stated to be
for the purposes of that Act, and cannot be
extended.
Where the property in respect of which pro-
bate duty is sought is mortgaged, the amount
of the mortgage incumbrance must be deducted
from the market value of the property, and the
probate fee charged on the balance. In the
matter af Ike Will of RahOHaNDRa. Laksh-
manji ; Vehavak Ramchandra Lakshhan.
Westropp, C. ].,.and Sargent, J. L L. Rep. 1
Bom. 118, 1876.
3. Court Fees Act VII. of 1870, Schedt
/., CI. II and 12— Exemption from Probate Duty
— Duty paid in England— I nterest in Partnership
Property.'] The testator, a member of the firm
of G.,A.,Si Co., of Calcutta, and of O., G.,&
Co., of Liverpool, died in England, leaving a
will, of which he appointed G. and O. his execu-
tors. As partner in the said firms, the testator
was interested in an indigo concern in Tirhoot
and certain immoveable property in Calcutta,
which constituted part of the assets and capital
of the said partnership firms. It had. been the
practice on the death or retirement of a partner,
that his interest in such properties, and also in
the other assets of the firms in India and else-
where, should be ascertained by valuation, and
the total amount of the share of such partner in
the entire partnership assets paid to him or his
legal personal representatives, and the adjust,
account of such retiring or deceased
D,„i„.db»Googlc
( 1179 )
DIGEST OF CASES.
( 1180 >
PROBATE DTJTY--™W.
partner was always made at the hear) office of
the firmt at Liverpool, and payments in respect
of such share were always made in England.
Soon after the testator's death, the entirety of
the indigo concern was contracted to be sold,
and the valuation of the testator's share was
made in the usual way in Liverpool, and the
amount of such share was paid to the estate in
England. In obtaining probate of the testator's
will in England, G , one of the executors, paid
probate duty in England in respect of the
testator's share in the indigo concern and thi
immoveable property in Calcutta.
The testator's name appearing on the titli
deeds of the indigo concern and the immoveable
property in Calcutta as one ol the owners, O.
applied for probate of the will, to enable him to
join in the conveyance of the indigo concern,
and in any future sale of the other immoveable
property. An unlimited grant of probate wa«
made to 0., who claimed exemption from pro-
bate duty in respect of the properties, on the
ground that (l) duty had already been paid in
England in respect of the testator's share
therein, and (I) that there was no amount or
value in respect of which probate was to be
granted in India; —
Hrtd, on a case referred by the Taxing Officer
(under Act VII. of 1870, § J,) that there was
no reason why the testator's share in the aaid
properties should be exempt from duty, and
that 0. was not entitled, in obtaining probate,
to exemption from the probate duty payable
under Act VII. of 1B70, Sched. I., CI.
respect of the properties In the Goods of
Gladstone. Garth, Q)., and Pentifex, J, ..I.
L.Rep. 1 CaL 138, 1876.
Set In the Goods of MtHcti L L.
Hep. 4 Cal 726.
Under Administration, 4.
PROCEEDINGS 10 ENFORCE OS
KEEP IN FORCE A DECREE—
Receipt of Instalments out of Court
under Compromise is not.
See Limitation. 5.
Stowell •. Billings L L.
Rep. 1 All. 360.
. Striking off Kxecution Case for Default of
Ste Limitation. S3,
L. Hop. 2 All. 386.
PROCEEDINGS TO ENFORCE OR
KEEP IN FORCE A DECREE -Wrf.
Suit against Person intervening in Execu-
tion Proceedings.
Ste limitation. 74.
Paras Ram v. Gardner I. L.
Rep. 1 All. 80S.
" PROCEDURE.'
S/e Appeal— Civil. 9.
Runjit Singh e. Meherban Koe*
I L. Sep. 8 Cal. 069.
Alteration of — pending Suit.
See Civil Procedure Code, Act X.
of 1857, § 343.
Rattansi Kallianji ..I. L. Rap.
2 Bom. 148.
Ste Construction of Statute. 5.
Sitakah e. Khandebav L L.
Rep. 1 Bom. i486,
PROCEDURE— CIVIL— Dismissal of Suit.
See Civil Procedure Code, Act
VITI. of 1869, § 148.
Rvall «. Sherman. ..I. L. Rep.
1 Had. £87.
For impeaching Probate of a Will.
Ste Probate 3.
KOMOLLOCHLN « N]LRUTTON...L
L. Hep. 4 Cal. 360.
Issues not raising Points of Minority or
Undue Influence.
Set Manomedan Law— Girt. 2.
Ameekoonlssa ». Abedoonissa.
L. Bep. 2 L A. 67.
In Suit on Behalf of Minor— Act X. of
■*77, § 440 — Certificate.
See Bombay Minora' Act XX. of
1K64, I 2.
MtlRLIDHAR u. StiPDU L L.
Rep, 3 Bom. 148.
Act XX111. 0/ 1861, ( 4— Defendants not
all raiding -rxithin Jurisdiction— Drawer and
Acceptor of Hundi-fianAru^rrj- of Acceptor-
Joinder of Forties^ The plaintiff, the payee of
a hundi payable at Calcutta drawn by two of
the delendants, who resided out of Calcutta, on
the third defendant, who managed a branch of
the firm at Calcutta, sued all three defendants,
on the acceptor having become bankrupt before
the hundi reached maturity, to recover the
amount he had paid to the drawers. The
suit was instituted in the Court within whose
D,„i„.db»Googlc
DIGEST OF CASES.
( 118S )
P ROCEDURB -CIVIL -can Id.
jurisdiction the drawers resided, and the plaintiff
obtained a decree in the Court of first instance,
but the lower Appellate Court dismissed the suit,
on the ground that the Court Of first instance
was incompetent to pass a decree against all the
defendants, without obtaining the sanction of the
District Court within the limits of whose juris-
diction the third defendant resided, according to
the provisions of f 4, Act XXIII. of 1861 :—
Held, that if it had been necessary to make the
acceptor a defendant, the procedure should have
been as provided by { 4 of Act XXIII. of 1861,
and the sanction of the proper Court in Calcutta
obtained, but it was not necessary to implead
him at all, even if he had not declared his bank-
ruptcy. The holder of a hundi, or of a bill Or
note, is not bound, in the event of its dishonour
to sue all the parties liable to him under it, but
may, at his option, select his defendant ordefend-
ants, as he may judge best for recovery of the
money. This is the law of England, where al-
though the holder of a bill may have issued the
writs, or a writ against all or any of his debtors,
he is not bound to sign judgment against them
at!, but may select any one or more of them, and
the taw in India does not appear to be different.
The suit was therefore remanded for trial on the
merits. Basant Ram v. Kolahal. Stuart, Q.].,
and (Hdfietd, J...L L. Rep. 1 All. 392, 1877.
PROCEDURE — CRIMINAL — Mode in
which a Magistrate should show Cause
against a Rule.
Set Mode in which a Magistrate,
Ac.
HURRO SOONDRRV ChOWDEHIN.
I. 1. Rep. 4 Cftl. 20.
Stamp Act XVIII. of 1869, §§S9, 43-
Magistrate authorited to prosecute.] A Magis-
trate who has been authorized by the Collector
of a district, under j 43 of Act XVIII. of i8(
to prosecute offenders against the stamp laws,
not competent also to try persona whom he
prosecutes. The Collector should appoint
person other than a Magistrate to conduct the
prosecution. Empress p. Gangadhur. Bhunjo.
Markby and Prinstp, JJ...L L. Rep. 3 Oal.
62S, 1878.
PROCLAMATION OF EXECUTION
SALE — ■ Insufficient Description in —
of Place of Sale.
Sec Sale in Execution of Decree. 8.
Showers v. Seth Gobind Dass...
I. L. Rep. 1 All. 400.
PROCLAMATION 07 EXECUTION
BALE— contd.
Material Error in — as to Amount of Go-
vernment Revenue.
Set Sale in Execution of Decree.
18.
GlRDHARI |r. HURDBO NARAIN...
L. Rep. 31. A. 230.
Not made on the spot.
St* Sale in Execution of Decree. 8.
Showurs v. Seth Gobind Dass.
I. L. Rep. 1 All. 400.
Omission to issue Fresh— on Adjournment
of Sale.
Set Sale in Execution of Decree. 6.
Gupee Nath v. Rov Luchmiput.
I. L. Rep. 8 Cal. 642.
Omission to issue Fresh — on Release from
Attachment of Part of Property adver-
tised for Sale.
See Sale in Execution of Decree. 11,
Shib Prokash Singh e. Sardar
Daval Singh, ,,1 L. Rep. 8
Cal. 044.
PRODUCTION OP DOCUMENTS — la
Possession of one Partner — Sole Defend*
Sec Inspection. 1.
Ha][ Jakaria v. Haji Casim.,.1.
L. Rep. 1 Bom. 496.
PROFITS, SUIT FOR- Sir Land not assess-
ed—Suit by Purchaser of Share.
Sec Suit for Profits.
Muhammad Aur. Kalian Sihoh.
I. L. Rep. 1 All 609.
PROJECTING EAVES -> Suit to Establish
Right to cut.
See Easement. 2.
MOHANLAL *. AMRATLAL ... I. L
Rep. S Bom. 174.
PROMISSORY NOTE— Assignment of.
&v Assignment of Chose in Ac-
tion.
Kanhaiva Lal v. Domingo ..L
L. Rep. 1 All. 783.
In Consideration of Time-barred Debt.
See Limitation. 42.
Ragoji v. Abdul ... I. L. Rep. 1
Bom, 600.
Diarized by Google
DIGEST OF CASES.
( H84 )
PROMISSORY NOTE— nmM.
Chator v. Tulsi.I. L. Rep. 8
Bom. 230.
— Interest, Stipulation to pay High Rate of,
on Default in Payment of.
See Contract. 13.
Mackintosh d. Hunt I. L.
Sep. 3 Cal. 303.
Summary Suit on— Extending Time for
Defendant to obtain Leave to appear and
defend.
See Civil Procedure Code, Act X.
oTlB77,§ 833.
Groom v. Wilson... I. L. Rep. 3
Cal. 530.
— Unstamped— Suit on — Evidence of Consi-
st Evidence. 4.
Golab Chand b, Thakurani Mo-
hokoqm I. L. Rep. 8
Cal. 815.
PROMISSORY NOTE PAYABLE ON
DEMAND- Limitation to Suit or
See Limitation. 1. 11. ID, 58.
NOCOOR CllUNDER BOSE «. KALLV
Coomar Ghose.. I. L. Rep.
1 Cal. 338.
iOMAR I. L.
Rep. 1 Bom. 306, n
V. ACHUNDA L L.
Rep. 1 Mad. 801.
Natha v. Janardhan L L.
Rep. 1 Bom. 503.
See Onus Probandi. 3.
Abdul Karim v. Manji Hansraj.
I. L. Rep. 1 Bom. 395
PROMISSORY NOTE PAYABLE BY
INSTALMENTS— Suit on.
See Act V. of 1868.
Rem y key v. S hilling ford... I. L.
Rep. 1 Cal. 180.
See Limitation. SO.
Gumma o. Bhixu.,,1, L. Rep. 1
Bom. 1;
PROOF— Of Breach of Covenant for Title.
See Proof of Breach of Covenant
for Title, infra,
— — Burden of.
See Onus Proband!.
PROOF— «*t«.—
Of Cession of Territory.
See Cession of Territory. 3.
Damodharu. Ganesk. .10 Bom.
H. C Rep. 87 ; I. L. Rep.
1 Bom. 367 ; L. Rep. 8 L
A. 103; L. Rep. 1 App.
C&.333.
Of Custom.
See the Cases collected under Custom.
SeeXhoitm.
Rahimatbai ». Hirbai L L.
Rep. 3 Bom. 84.
— Of Determination of Tenancy, where Rela-
tion of Landlord and Tenant has once
existed. Necessary— Mere Non-payment
of Rent Insufficient.
See Landlord and Tenant. 9.
PremSukhDaso. Bkupia.-.I. L.
Rep. 3 AIL 617.
Of Mirasdar's Title.
See Mir as.
Baeaji ». Narain...L L. Rep. 8
Bom. 840.
Of Notice.
See Onus Probandi. 1.
Lallubhai u. Ambit... I. L. Rep.
S Bom 808.
■ Of Ownership.
See Onus Proband!. 6.
Ratan Kuarv JlWAN SlNGK...I.
L. Rep. 1 AIL 194.
Of Payment — Parol Evidence of — contrary
to Stipulation in Bond.
See Bond to secure Balance of
Account.
Narrayah v. Motilal. X. L.
Rep. 1 Bom, 45.
Of Payment of Hundi.
See Onus Probandi. 3.
Abdul Karim v. Manji L L.
Rep. 1 Bom. 396.
PROOF OF BREACH OF COVENANT
FOR TITLE— In a suit for an alleged breach
of a covenant for title, it is not enough to prove
unsuccessful proceedings to recover possession
from third parties, or even an eviction by third
parties, in order to prove a breach of such
it the
indhis
prcsenlativcs. Such proceedings;
D,„i„.db»Googlc
( lies )
DIGEST OF CASES.
{ HM >
PROOF OF BREACH OF COVENANT
FOB TITLE— cmid.
sarily, though they may happen to be, binding,
and the plaintiff has in general to prove, as
against the covenantor and his representatives,
not only that the plaintiff's proceedings to re.
cover possession bad been unsuccessful, or that
an eviction of the plaintiff had taken place, but
that such proceedings were rightfully unsuccess
ful, or that such eviction was rightful. In other
words he has to prove, as against the covens
or his representatives, that the title was bad by
reason of some act or fact covenanted against.
Otherwise it would be very easy for any purcha-
ser, who had repented of his bargain, to get up
collusive proceedings, either as plaintiff or
defendant, and then sue the covenantor to re-
cover purchase -money and interest. Per Green,
J., in Raju Bali; v- Krjshnarav Rahchanpra.
I. L. Hep. 2;Bom. 273, 287.
S. C. under Registration. 28,
PROOF OF EXECUTION OF WILL IN
COURT.
See Hindu Law- "Will. 3.
SlIRBO MllNGOLA v. MoBENDRO
Nath ...LL.Rep.4Cal.C0S.
PROOF IN INSOLVENCY— Cesini-que.
Trust Creditor.
Set Insolvency. 7. .
Vardala Ciiarki ..L L. Bap. 2
Mad. IB.
PROOF OF SERVICE OF NOTICE OF
FORECLOSURE— Bengal Reg. XVII.
of 1806— Finding of Zillah Judge in
Foreclosure Proceedings — Purchasers of
Equity of Redemption.
Sec Mortgage. 13. 14.
NORENDERv. DWARKA LAL L.
Rep. 6 I. A. 18.
Bank or> Hindustan v. Shoro-
shibala.I. L. Rep. 2 CM.
811.
PROFERTT ALLEGED TO BE STO-
LEN, ORDER FOB DISPOSITION
OF.
See Criminal Procedure Code, Act
X. of 1879, SS 41S to 410,
1.3.
In re Anpurxabai...I. L. Rep.
1 Bom. 680.
Empress v. Nilambar I. L.
Rep. 3 All. 37S.
PBOPERTT NOT IN ESSE -Mortgage of
Sec Mortgage. S3.
MORAN V. MlTTU BlBEE I. L.
Rep. 3 CaL 68.
PBOPERTT IN THE HANDS OF THE
RECEIVER OF THE HIGH
COURT— Attachment of— Order on Re-
ceiver to sell.
See Receiver, Property in the
liand a of.
Hem Chunder it. Prankristo ..
I. L. Rep 1 CaL 403.
PROPORTIONATE SHARE OF MOHT.
GAGE DEBT.
See Apportionment of Mortgage
Debt.
Hirdy Narrain v. Syed All-
Oolla.-.I. L. Rep. 4 OaL
73.
FROFRTETART POSSESSION —Mad.
Reg. XXV. of i8oi.
,S?( Polliem, 1.
The Collector of Trichinopo-
ly v. Lekkamani.-.L. Rep.
PROPRIETARY RIGHT — Question of—
Appeal to Judge.
See Act XVIII. of 1873, § 93/3.
Variation of Assessment does not Affect.
Set Bombay Act I. of 1865, § 35.
Collector of Thama ». Dam.
BHA1...I. L. Rep. 1 Bom.
363.
PROPRIETARY RIGHT IN THE
LAND.
See Rights of Miratdari.
Fakir Muhammad «. Tirumala
Cb AR1AR...I. L. Rep. 1 Had.
906.
Evidence of.
See Enhancement of Rent. D.
Diaxized by Google
( 11W )
DIGEST OF CASES.
( UBS )
PROPRIETARY BIGHT OF HOLDERS
OF LAND IN BALSETTE.
See Bombay Act I. of 1885, § 35.
Collector of Th ana b. Dada-
bhai..X L. Rep. 1 Bom.
803.
PROPRIETARY RIGHTS IN A MA
HAL— Mortgage of.
See Act XVUX of 1873, $ 7. 3.
Bhagwan Singh t>. Muku Singh-
I. L. Rep- 1 All. 409.
■ Mortgage of— followed by Sale — Rights of
Mortgagor to hold Sir Lands-
See Act XVITX of 1878, § 7. 1.
Bakhat Rah «. Wazir Ali.-X,
L.Bep.lAll.448.
PROPRIETARY BIGHT OF MTRAS-
DAB.
See The Collector of Thana e.
Dadabhai I. L, Rep. I
Bom. 363-361,
PROPRIETARY RIGHT OF POLI-
GAB&
See Polliem. 1.
, The Collector of Trichinopoly
•!■■ Lekkamani ... L. Rap. 1
I. A. S8S.
PROSECUTION — Commencement of.
See Sanction to Prosecute, 4.
Ikpx.v. L.AXSHMAN...I. L. Rop. 2
Bom. 481.
PROSECUTION OF JUDGE OB PUBLIC
SERVANT-Sanction for.
See Sanction to Prosecute. 4.
Impx.b. LAKSHMAN...I. L. Rep.
3 Bom. 481.
PROSTITUTION- Disposal of Minor Girl for
purposes of.
See Penal Code, § 879.
Rbc. v. A RUN a ChBLLak ...... I. L
Bep. 1 Had. 184.
PROSTITUTION OF LEGAL GUAR-
DIAN OF MINOR DISQUALI-
FIES FOB RIGHT OF CUSTODY
OF MINOR.
See Mahomedan Law- Guardian.
Abasi v. Dunne I. L. Rep. 1
All. 088.
PUBLIC DOCUMENT.
See Jamabandi.
Taru Patur «. Asm ash Cramn
DuTT...LL.Bep.4 0al.79.
PUBLIC FEBB.Y— Plying Boats near a.
See Criminal Trespass. 3.
Muthra v. Jawahir...L L. Rep.
1 ALL 037.
PUBLIC HIGHWAYS- Power of Municipal
Commissioner to close or divert.
See Bengal Act HI. of 1884.
Empress r Brojonath Dev ...
I. L. Rep. 3 Cal. 435.
PUBLIC NAVIGABLE BITERS— Right
of Private Fishery in.
See Bight of Fishery in Public
Navigable River.
Prosunno Coohar Sircar v. Rah
Coomar Paboobv I. L.
Bep. 4 Cal. 63.
PUBLIC NUISANCE- Abatement o£— Suit
for.
See Bight to Sue. 1 to 6.
Kakim Baksh v. Budha I. L.
Rep. 1 All. 349.
Raj Koomar Singh *. Sahebza-
oa Roy... I. L. Bep. 3 Cal.
SO.
Sathu Kadir Sausare ». Ibrahim
Aga.L L, Bep. 3 Bom. 467.
Gkhanji Kes Patil r. Ganpati
Lakshman I. L. Bep. 3
Bom. 167.
PUBLIC POLICY— Agreement against.
See the Cases collected finder Cham-
perty.
Agreement against— Agreement by Pleader
for Reward proportioned to Amount
See Inam Chitti.
Ramchandra ». Kalu L L.
Bep. 3 Bom 863.
Agreement against — Restraint of Trade.
See Contract. 17. 17a.
Oakes& Co. *. Jackson ..I. L.
Rep. 1 Mad. 134.
Vaithelhingac. Saminada I,
L. Rep. 3 Mad. 44.
Diarized by Google
( 1189 )
DIGEST OF CASES.
( 1190 )
TUBLIC RIVER— Infringement of Exclusive
Right of Fishing in.
See Criminal Trespass. 3,
Empress e. Chart; nayiah...
I. Ii. Bop. 2 Cal. 354.
PUBLIC SERVANT- Acceptance of " Das-
turi" by.
See Penal Code, § 105.
Eumtss c. Kampta Prasad. ..I.
L. Sep. 1 All. S30.
■— Contempt of Lawful Authority of.
See Criminal Procedure Code, Act
X. of 1872, § 210.
In re Muse ...I. L, Rep. 2 Bom.
663.
— Disobedience of Order of.
See Disobedience of Order of Public
Servant.
Muthra t. Jawahib...I. L. Bep.
1 AIL 027.
— Municipal Commissioners.
See Jurisdiction. 18.
Gangadhar i. Collector of Ah-
.. L L. Bep. 1
Penal Code, i 11 -Act IV. of 1877, J 39.
See Municipal Commissioners.
Empress v. Municipal Corpora-
tion of Calcutta, „I_ L.
Bep. 3 Cal. 768.
Paddar o£ Bank of Bengal.
SrPeMl Code, 3 21, CI. 9.
Modus Mohun I. L. Rep. 4
Cal 376.
— Sanction to Prosecute.
See Sanction to Prosecute. 4,
Ikpx. 1. Lakskman ...I. L, Bep.
3 Bom. 481.
Penal Code, $ si.] A person appointed by
the" Government solicitor, with the approval of
Government, and under an arrangement made
by the Governor-General in Council, to act as
prosecutor in the Calcutta Police Courts, is a
public servant within the meaning of § si of the
Penal Code. Empress o. Butto Kristo Doss.
Jackton and Cunningham, JJ...I. L. Rep. 3
Cal. 487, 1878.
PUBLIC SPRINGS,
See Penal Code, § 277.
Empress c- Halaohur Porar...
I. L. Bep. 2 Cal. 388.
PUBLIC THOROUGHF ABB— Obstruction
to— Suit to remove.
See Bight to Sue. 1 to 6.
PUBLIC USE OF INVENTION.
See Infringement of Patent.
Sheen v. Johnson... I. L.Bep. 2
All. 388.
PUBLICATION OF LIBEL.
See Libel.
Shepherd v. The Trustees op
the PortofBombav.,.1. L.
Bep. 1 Bom. 477.
PUBLICATION OF NOTICE OF SALE
FOB ABBEABS OF BENT— Defec
tive— " Sufficient Plea" to set aside Sale.
See Bang. Beg. VIH. of 1819, § 8.
1.
GOURIE LALL T. JoODHISTEEK
Hajrah ...I. L. Bep. ICaL
see.
PUBLICATION OF NOTICE OF BALE
OF PTJTHI TENUBE FOB AB,
BEARS OF BENT.
See Beng. Reg. VIII. of 1819, § 8,
01. 2. 3.
Matungee Churn t- Moorrarv
MonuN...l. L- Bep. 1 Cal.
175.
PUBLISHING BANNB OF MAR-
RIAGE.
See Attempt. 1.
Reg. si. Peterson. ..I. L. Bep. 1
All. 816.
PURCHASE OF DECBEE BY JOINT
JUDGMENT DEBTOE.
See Limitation. 01.
L M u .-
lHm
I. L. Rep. 2 Cal. 98.
PURCHASE WITH JOINT FUNDS BY
MEMBEB OF UNDIVIDED FA-
MILY.
See Hindu Law— Undivided Fa-
mily. 10.
BtSSESSUR Lai.l SaHook. Maha.
L. Bep. 6 I. A. 233.
D.gmzed by GoOgle
DIGEST OF CASES.
PURCHASE IN HIS OWN NAME BT
MANAGING MEMBER OF JOINT
HINDU FAMILY AT REVENUE
■ALE.
Set Act I. of 1845, § 31.
Toondun Singh v. Pokhnarain
Singh... L. Rep. 1 L A.
84&.
PURCHASE MONET— Right to Recover-
on Setting Aside Revenue Sale, after
Judgment- Debtor'* Interest in Surplus
Proceeds has been sold in Execution.
See Sale in Execution of Decree. 17.
Rah Tiiijl Sinch e. Biseswar
Lall Sahoo...!* Rap. 3 L
A. 181.
Right of Purchaser at Execution Sale to
recover— on Sale being set aside.
See Sale in Execution of Decree.
13. SI.
Makundi Lal e. Kaunsjla...I.
L. Rop. 1 All. 668.
Basappa v. Dhundya I. L.
Sep. 2 Bom. S40.
See SherifPa Sale. 1. 3. 4.
Dorab Ally Khan v. Kiiajah
MOHBBOODEEN...I. L. Rep.
I Cat. 60 ; L. Rep. 5 I. A.
116; I. L. Rep. 3 Cal.
80S.
Fkahji v. Horkasji.,.1. I.. Rep.
3 Bom. SOS.
Right of Purchaser at Execution Sale
under Act VIII. of 1859 to recover— on
Eviction.
See Civil Procedure Code, Act X of
1877, § 310.
Mulo...Z. L. Rep. a All. 399.
Right of Purchaser at Revenue Sale for
Arrears of Rent to recover — on Sale
being set aside,
Set Setting aside Bale of Superior
Tenure, Effect of.
Srebnahain Baccheb v. Smith.
I. L. Rep. 4 Cal. 807.
See Bale in Execcution of Decree.
17. I
Rah Tkul Sinoh v. Biseswar
Lall SaHOo ,,L. Rep. 2 I. I
PURCHASE-MONEY— contd.
Right of Purchaser at Sale by Sheriff,
under Writ of Fieri Facias, to recover on
Eviction, on Sale being declared Void.
See Sheriff* Bale. 1. 3. 4.
Dorab Ally Khan v. Kiiajah
MoKBEOODDBEN ...X. L. K«p.
1 Cat 00 ; X. L.Rep. 3C&L
806; L. Rep. 8L A. 116.
Framjee v. Horhas)ee...I. L.
Rep, S Bom. 258.
Vendor's Lien for Unpaid.
See Vendor and Purchaser. 1.
Triuulrav v. Municipal Cow-
MiSSt ONERS OF HuBLI ...I. I,.'
Rep. 3 Bom. 172.
PURCHASE BT MORTGAGEE OF
BIRT TENURES WITHIN THE
TALOOX— Right ot Mortgagor of
Talook to redeem.
Set Mortgage. 10.
Rajah KtsHBHDATT Ram v. Rajah
Mumtaz Au Khan L.
Rep. 6 I. A. 148.
PURCHASE BY MORTGAGEE OF
MORTGAGED PROPERTY BUB-
SEttTJENTLY SET ASIDE— Right
of Purchaser at Execution Sale of Mort-
gagor's Interest to redeem.
Set Mortgage . 38,
Phul Kuar «. Murli Dhur... I.
L. Rep. 2 All. 627.
PURCHASE BY MORTGAGEE OF
SHARE OF ONE OF SEVERAL
JOINT MORTGAGORS- Effect of.
See Mortgage. 39.
Kukav Mal v. Puran MAL...I, Zi.
Rep. S AIL 866.
PURCHASE BY A TRUSTEE— /naJegujiey
of Consideration.'} J. C. M., as executor of his
father, obtained a decree for Rs, 1,70,00a, and
held the same in trust as regards one-fifth there-
of for the plaintiffs. Subsequently be took an
lnienl, for the joint benefit of himself and
-Other 5 , of the beneficial interest in the
plaintiffs' share, for Rs, 5,000, from U., one of
the executorsof the plaintiffs' father. The plain-
tiffs had derived title to their one-fifth share
under'the will of their father ; and subsequently
obtained a decree for the said Rs- 5,000 against
D,gltlzed by G00gle
{ 11» )
DIGEST OF CASES.
( 1194 )
PURCHASE I)T A TRTJBTEK— conld.
M. in an administration suit. J. C. M. vras co-
executor with it. of the- plaintiffs' iathcr, though
be was said to have renounced.
In a suit against J. C..U. to declare the said
assignment invalid except as a security for the
Mid sum of Rs, 5,ooo, and any other sums justly-
due (J/, and S. being made party deiendants) :
Held, that the purchase, beingforan inadequi
consideration, was invalid, and that the share
must be restored to the plaintiffs on the purchase-
money being- returned, inasmuch as J. C. M.
holding the decree in a fiduciary position for the
plaintiffs, could not purchase the same either for
bis own benefit, or that of himself and his brother
jointly. Such a suit being against J. C. M, as a
purchaser in bis own right was not in the
a review of a decree against M., who had been sued
as executor of the plaintiffs' father. Dhohknder
Ch under Mookerjee v. Mutty Lall Hooker.
JEB L. Rep. 21 A. 18; 2»W. B. 3; 14
Beng. L. B, 376, 1874.
PURCHASER FROM HEIBOS DEVI.
SEEB OF DECEASED HINDU —
Liability of — for Debts of (Ancestor or)
Testator.
See limitation. 38a.
Grbbnder Chundek Ghosr v.
Mackintosh 1. L. Bep.
4 Cftl. 897.
PURCHASER FOR VALUE, BONA
FIDS, WITHOUT NOTICE— Of
Ancestral Property, in Execution of
Decree against Father.
S« Hindu Law— Alienation of An-
cestral Property. 3.
Gikdharbe Lall v. Kantoo La it.
1. Bep. l L A. 331.
— Sham Decree set up against.
Set Mort (rag*. 7.
GOPI V. MARK AN DR.... I. L. Bep.
8 Bean. 80.
Of Trust Property.
Sit Dewuttur. 2_
KONWUR DoORGAMATH ROT V.
Ramchunder Skn,..L. Bep.
4 L A. 63 ; I. L. Bep.
3CaL841.
Sn Limitation. 37.
Piarv Lal o. Sauqa...1. L. Bep.
5 AIL 384.
PURCHASER FOB VALUE, BONA
FIDE, WITHOUT NOTICE— eontd
See Hindu Law— Will. 10.
Makiklal i. Mancharsha ..L It.
Bep. 1 Bom. 269.
5m Trait. 1. 3.
Kamal Siboh v. Batwl Fatima.
L L. Bep. 3 AIL 460.
Hahbha} 0. Gun ani... Ibid. 498.
Of Widow's Claim for Maintenance;
See Hindu Law — Maintenance of
Widow. 1.18-
Adhiranee v. Shoka Malkr...I.
L. Bep. 1 CaL 386.
Lakskuan v. Satyabhawabai.,.1,
Ll Bep. S Bom. 494.
PURCHASES OF DECREE— Application.
by, for Execution — Appeal.
See Appeal— Civil. 9.
Runjit Singh r. Meherbaw
Kobr...L L, Bep. 8 CaL
663.
— — Money decree obtained on Mortgage- Bondt
acquires no Lien on Property.
See Mortgage, 40.
Gakpat Rat v. SA«rm..X L,
Bep. 1 AS. 446.
— Right of — to1 Appeal against Refusal to
place him on the Record and Execute-
See Act XXIII. of 1881, § II. 1.
SOBHA BlBBB V. MlRZASAKHAMUT
Ali...I. L. Rep. 8 CaL 371.
PURCHASER FROM. DEFENDANT
AFTER DECREE AGAINST THE
LATTER — Right of. — to carry on
Special Appeal.
See Abatement of Appeal— Civil.
MORESKWAR T. KU3HABA...I. L~
Rep. S Bam. 348.
PURCHASER 07 EQUITY OP RE-
DEMPTION BEFORE FORECLO-
SURE PBOOEEDINOS ENTI-
TLED TO NOTICE— Beng. Reg.
XVII. of 1806,, a
Set Mortgage. 13.
NORBNDEE V. DWARKA LaL...L>
Rep. 6 I. A. 18 ; L L. Rap.
3 Cat 397.
DigruzedhyGOOglC
( 1195 )
DIGEST OF CASES.
{ 1196 )
PURCHASER AT EXECUTION SALE
— Assignment by.
See Hindu Law— Bale of Land.
See Sale in Execution of Decree. 1.
Govfnd o. GoviND...X L. Sep. 1.
Bom- 300.
Liability of— for Government Revenue
falling due between Purchase and Con-
See Sale in Execution of Decree. 3.
BHVRUE CHUNDER 0. SOUDAMINl...
L J.. Rep. a Cal. 141.
- Obstruction t
See Sale
Execution of Decree. 12.
Harasatoollak 1. Brojonath
Ghose ..I. L. Rep. 3 Cal'
7S9.
- Period from which the Title of— dates.
See Sale in Execution of Decree. 3-
liHVHUB CHUNDEK V. SoUBAMINl...
I. L. Rep. S Cal. Ill,
- Right of— to apply for Possession accrues
on Date of Certificate, not of Confirma-
tion of Sale.
See Limitation. 96.
Basapa v. Mary/
I. L. Rep. 3
■ Right of— to recover Purchase Money on
Sale being set aside or Decree reversed
before Confirmation of Sale.
See Sale in Execution of Decree,
18. 31.
Makundi Lalst. Kaunsila .1. L.
Rep. 1 All. 568.
Basappa v. Dundaya ...I. L. Rep.
2 Bom. B40
See Sheriffs Sale. 1. 2. 4.
Dorab Ally Khan v. Khajah
MOBEEOODEEN...L L,Bep. 1
Cal. 55 ; I. L. Rep. 3 Cal.
806 ;L. Rep. 6 I. A. 116.
Frahji o. Hormasji L L.
Rep. 8 Bom. 268.
. Right of— under Act VIII. of 1859 to re-
cover Purchase Money on Eviction.
See Civil Procedure Code, Act X.
of 1877, §316.
In the matter of Ike Petition oj
Mulo I, L, Rep. 3 AU.
PURCHASER AT EXECUTION SALE
UNDER DECREE AGAINST RE-
PRESENTATIVE OF DECEASED
MAHOMEDAN, RIGHT OF.
See Sale in Execution ofDecree. SO.
Hendry t. Mutty Lall Dhur ..
I. L. Rep. 2 Cal. 395.
PURCHASER 07 FAMILY PROPERTY
AT SALE IN EXECUTION OF
PERSONAL DECREE AGAINST
PATHER-Right of.
Venkattasami Naik v. Kuppai-
van.. I. L. Rep. 1 Mad. 354.
v- VEHKATA-
...ibid. ass.
PURCHASER FROM! OBANTEK OF
MORTGAGOR— Priority of Purchaser
at Sale in Execution of Decree on Mort-
gage over.
See Mortgage. 6.
MUTHORA NATH I. Clir.'NDEKMO.
N1Y...L L. Rep. 4 Cal. 817.
PURCHASER OF HONEY DECREE OB-
TAINED ON MORTGAGE BOND
Right of.
See Mortgage. 40.
Ganpat Rai v. Sarupi I. L.
Rep. 1 AU. 446.
PURCHASER FROM NEXT OF KIN—
Right of— to apply for Revocation of
Probate.
See Probate. 3.
Kohollochurh t- Nilruttem...
I. L. Rep. 4 Cal 800.
PURCHASER WITH NOTICE.
See Mortgage. 31.
Debi Dutt Sahoo tr. Suboodra
Bibee.,.1. L. Rep. S Cal.
888.
— Of Charitable Trust
See Hindu Law— WilL IO.
Maniklall v. Mantksha...! L.
Rep, 1 Bom. 96a
Diarized by Google
( 119? )
DIGEST OF CASES.
( 1198 )
PURCHASER WITH NOTICE-™™
. . Of Claim of Married Woman to Property
sold as being her Separate Property.
See Married Woman's Separate
Property. 3.
Beresfokd 9. Hurst. ..I. L. Rep.
1 All. 772.
■ — — Of Claim to Maintenance by Hindi
Widow.
See Hindu Law— Main tenanco of
Widow. 1. 7. 13.
Adhiranb* N. Coomarv v. Shona
Mahadai I. L. Rep. I
Cal. 365.
JOHURRA BlBEB tr. SrBEGOPAL
Misser Ibid. 470.
LAKSHMAN V. SATYABHAMABA[...I.
L. Rep. 2 Rom. 494.
■ From Purchaser without Notice.
See Equitable Mortgage.
DAVAL J A1KAZ V. JlVRAZ RATANSI,
I. L. Rep. 1 Bom. 387.
And set Raju Balu t. Krishnarav...
I. L. Rep. 3 Bom. 278,
292.
PURCHASER FROM OFFICIAL AS-
SIGNEE IN INSOLVENCY-Of
Manager of Joint Hindu Family carrying
on Joint Ancestral Trade, Title of.
See Hindu Law -Maintenance of
Widow. 7.
JOHURRA BlBEE ». SrEEGOPAL
Misser. ..I. L. Rep. 1 Cal.
470.
PURCHASER PENDENTE LITE.
Ser Abatement of Appeal— Civil. 1.
Mokeshwar v. Kl'SHABA-.I. L.
Rep. 2 Bom. 248.
See Lis pendens.
Lala Kali Prosado. Bali Singh.
I. L. Rep. 4 Cal. 789.
See Mahomedan Law— Right of
Creditors to follow the Es-
tate of a Debtor into the
hand* of a Purchaser from,
the Heir.
Bazavet Hussein j>, Dooli
Chand...L L. Rep. 4 Cal.
402.
PURCHASER AT REVENUE BALE
FOR ARREARS OF RENT- Right
of— to Recover Purchase Money on Sale
being set aside.
See Setting aside Sale of Superior
Tenure, Effect of.
Sreenarain Bagcheev. Smith ..
I. L. Rep. 4 .Cal. 807.
See Sale in Execution of Decree.
17.
Ram Thul Singh v. Biseswar
Lam. Sahdo L. Rep. 3
I. A. 131.
PURCHASER AT SALE FOR AR-
REARS OF REVENUE— Right of
— to Enhance Rent.
See Enhancement of Rent. 1,
PuRMANUND ASRUM v. ROOKTNEE
Gooptani L L. Rep. 4
Cal 793.
PURCHASER AT SALE IN EXECU-
TION OF DECREE — On Mortgage
—Right of.
See Emblements.
Land Mortgage Bank if. Vish-
nu I. L. Rep. 3 Bom.
670.
See Mortgage. 1. 6
MuthoraNath Pals. Chunder.
money Dabia...I. L. Rep. 4
CaL 817.
Shkinoapurb u. Pbthr...I. L.
Rep. 3 Bom. 663.
— On Specially Registered Mortgage Bond-
Right of.
See Sale in Execution of Decree. 5.
Akke Ram v. Nand Kishore ..I.
I* Rep. 1 Ail. 263.
— Against Undivided Member of Undivided
Hindu Family.
See the Index heading Alienation of
Ancestral Property — by
Sale in Execution of Decree
against a Member of an Un-
divided Family.
D.gmzed by GoOgle
( 1199 )
DIGEST OF CASES.
( 1200 )
PURCHASER AT SALE IN EXECU-
TION OF HONEY DECREE UN-
CONNECTED WITH HIS MORT-
GAGE, OBTAINED BY MORT-
GAGEE—Notice of Mortgage— Right
of Purchaser.
See Mortgage. 8.
TUKARAM ». RaHCHANDRA... I. Ii.
Rep. 1 Bom. 314.
See Sheriffs Bale. 3.
Bhuggobuttv Dossee -b. Shama-
churm Bose.-.L L. Bep.
Cal 337.
PURCHASER AT SALE IN EXECU-
TION OF PERSONAL DECBEE
AGAINST A HINDU WIDOW
Rights of— and of Reversionary Heir.
See Personal Decree against a
Hindu Widow.
Baijun Doobev o. Brij Bhcokun ..
L. Bep. 8 I A. 976; I. L.
Bep. 1 CaL 138.
See Sale in Execution of Decree. 19.
Alukmonee v. Banee Madhub ..
I. L. Rep. 4 Cal. S77.
PURCHASER AT SALE IN EXECU-
TION OF SIMPLE MONEY DE-
CREE OBTAINED ON MORT-
GAGE.
See Sale in Execution of Decree.
4.9.
Khub Chand v. Kalian Dass...
I. L. Bep.l All. 340.
Balwant Singh v. Gokaran
Prasad Ibid. 433.
See Mortgage. 40.
Ganpav Rai v. Sarupi...L L,
Bep. 1 AIL 440.
PURCHASER AT SALE BY SHERIFF
UNDER WRIT OF FIERI FA-
CIAS—Right of— to recover Purchase
Money on Eviction, on Sale being de-
clared Void.
See Sheriff^ Sale. 1. 3. 4.
Dorab Allv Khan «. Khajah
M011EE00DDEEN...I. L. Bep.
1 Cal. 66 ; I. L. Rep. 3 Cal.
806 j L. Bep. SLA. 116.
Frauji v. Hormasji.,.1. L. Rep.
PURCHASER, OF SHARE IN A MA-
HAL—Suit by— for Profits of Unassess-
ed Sir Lands.
See Suit for Profit*.
Muhammad Alt «. Kalian Singh.
X. L. Rep. 1 AIL 699
PURCHASE BY UNRECORDED CO-
PARTNER AT BALE FOB AR-
REARS OF REVENUE- Takes sub-
ject to Incumbrances then existing.
See Act XL Of 1869, § 63.
. Abdool Bari t. Rahdass Condoct.
I. L. Bep. 4 CaL 607.'
PUTNEE TALOOX— Dar Putnee — Sale—
Act X. of 1859, % las—Reg. VIU, of 1819, ( f g
and ll—Stg. J. of t8iO.] Under the descrip-
tion " putnee taloofc" and " dar-putnee talook,"
it must be primi facie intended that the tenure
called a putnee tenure was a tenure transferable
by sale, and upon the creation of which it was
stipulated by the terms of the engagements in.
terchanged that in case of an arrear occurring,
the estate might be brought to sale free from
incumbrances. According to the effect of
f 105, Act X. of 1S59, Reg. VIU. of 1819, j f S
and II, and probably also Reg. I. of 1820, the
effect of the sale of such a talook for arrears of
destroy all incumbrances which have
been created by the putoeedar, e.g ., a dar.put-
tenure. Brindabuk Chunder Sircar
CHOWDHRr e. Brinoabun Chunder Dbt
CHOWDHRY...L. Bep. 1 X. A. 178 ; 21W.R.
834 ; 13 Beng. L. B.
408, 1874.
PUTNEE TENURE, BALE OF, FOB
ABBE ABB OF BENT— Suit to set
aside Sale — Publication of Notice, Date
of.
See Beng. Beg. VTXL of 1819, § 8,
CI. 9. 3. '
Matungss Churn r. Moorrakt Mo-
hun.-.L L. Bep. 1 CaL 17S.
QUALIFIED PRIVILEGE.
ftcLfbaLa,
HtNDE e. Baudrv,,.I, L. Rep. 3
Mad. IS.
QUESTION OF PROPRIETARY
BIGHT— Appeal to judge.
See Act XVLTI. of 1873, 5 93. 3.
Bisheshur Singh v. Musamat
Sugundhi L L. Rep. 1
All. see.
D,gltlzed by GoOgle
( 1201 )
DIGEST OF CASES.
( 1203 )
QUESTION OF TITLE INCIDENT-
ALLY DETERMINED IN SUIT
COGNIZABLE BY SMALL CAUSE
COURT— Gives no Right of Special Ap-
peal in Suit Cognizable by Small Cause
See Appeal— Civil. S3.
Mohesh Mahto«. Sheikh Pirl'...
I. L. Rep. 2 Cal. 470.
QUIET ENJOYMENT— Implied Covenant
for — Landlord and Tenant — Patnidar and
Darpatnidar.
See Darpat.ni.
S. C. Landlord and Tenant. 7.
Tarachand ». Ram Gobimd...L
L. Rap. 4 Cal. 778.
RAILWAY ACTXVUI. OP 1854— Com-
mon Law Liability of Carriers — Contract
Act IX. of 187*, |§ 151, 15a— Loss by
Robbery.
St* Railway Company. 9.
Kuverji v. The G. I. P. Railway
Co... I. L. Rep. 8 Bom. 100.
S3-
Set Railway Company. 4.
Pratab Daji p. The B. B. & C. I.
Railway C0...I. L. Rep. I
Bom. 52.
— — S II— Public Notice or Private Contract
limiting Company's Liability — Gross
Neglige nee — M isco nd uct.
Set Railway Company. 1. 3.
Surutram ■. The G- 1. P. Rail-
way C0...I. L. Rep. 3 Bom.
86.
- I 15 — Dangerous Goods — Omission to
See Negligence.
Lvei,l t. Ganga Dai. ..I. L. Rep.
1 All. 60.
-S17.
See Railway Company. 4,
Pratab Daji v. The B. B. & C. I.
Railway Co... I. L. Rep. 1
RAILWAY ACT XVIII OP ISSi—cantd.
' £ 43 — Public Notice — Sanction by Govern.
men t— Knowledge of Consignor.
See Railway Company. 1.
SuRUTRAH t>. THEG. I- P. RAILWAY
C0...I. L. Rep. 4 Bom. 06.
RAILWAY COMPANY — Railway Act
XVIII. of l854,i( It, 43— Carriers— Evidence
—Burden of Proof.] The defendants, having
made arrangements with the Madras Railway
Company for the through carriage of goods,
received from the plaintiff's agent at Poona
thirty bags of jovari to be carried thence to
Bellary, on the Madras line, and delivered to
the plaintiff's agent there. The " goods con.
signment note," which contained the contract
and was signed by the plaintiffs agent at
Poona, contained the following condition, of
which he had due notice at the time of making
the contract: — "The Company receive goods
for conveyance to stations on other railways
with which they have made arrangements to
book through, subject to Ike rules and regula-
tions and rates and fares of the respective Com-
panies over whc.se lines the goods may pass" On
reaching Raicbore the bags oijowari were trans-
ferred from the defendants' wagon, in which
they bad left Poona, into a wagon of the Madras
Railway Company. One bag was subsequently
lost; but the remaining twenty-nine bags arrived
and were unloaded in good condition at Bellary
on the 19th September 1877. No steps were
taken, either by the defendants or by the Madras
Railway Company, to give information of the
arrival of the bags to the consignee, and he
never received them. The plaintiff sued to
recover their value. The defendants pleaded,
1st, that under a rule of the Madras Railway
Company in force at the time of the making of
the contract between the plaintiff and defendants,
delivery was complete the instant the bags were
unloaded at Bellary ; and, indly , that the plain,
tiff's agent at Bellary did not apply for the goods,
but allowed them to remain in the station-yard
until they became rotten by rain, and were
destroyed by order of the Collector some time
in November. The Madras Railway Company
had issued a public notice of tbe above rule to
this effect;— "The Madras Railway Company
hereby give notice that they will not be respon-
sible for loss of, or damage to grain after it has
been unloaded from the Company's wagons."
The defendants sought (o incorporate this notice
into their contract with the plaintiff by virtue
D,gltlzed by G00gle
( 1203 )
DIGEST OF CASES.
( 1204 )
RAILWAY COMPANY -could.
ef the conditions printed on their "good:
sign men t note."
Held, that the notice afforded no protection
to the defendants, on the ground that
invalid as a regulation for non-compliance with
the provisions of f 43, Act XVIII. of 1854,
asmuch as it had not been sanctioned by the
Local Government, and had not been posted
up at all the stations of the Madras line of
railway; and that it could not other
binding on the plaintiff, as neither he
agents were shown to have had any knowledge
of it at the time of entering into the contract
with the defendants.
Held also, that the arrival of the goods at
Bellary having been proved, the burden, of prov-
ing that the goods were ready for delivery to
the plaintiff for a reasonable time after their
arrival, lay on the defendants, though no proof
had been given of any application for delivery by
the plaintiff within a reasonable time. It is the
duty of Railway Companies in regard to goods
which have reached their destination, to have
them ready for delivery at the usual place for
delivery until the owner, in the exercise of due
diligence, can call for and receive them ; and it
is the owner's duty to call for and receive them
in a reasonable time.
Semble, the object of { II of Act XVIII- of
1854 is to preclude Railway Companies from
being able by any stipulation to escape from
liability for lessor injury to articles or goods
caused by the gross negligence or misconduct
of their servants or agents. Surutram Biiava
v. The G. I. P. Railway Companv. Westropp,
CJ-, and Green, J...I. L. Rep. 8 Horn. 86,
1878.
3. Carriers— Contract Act IX. of l872,
H 151, 151— Act XVIII. of 18*4— Act III. of
1865.] The English Common Law rule under
which common carriers are held liable as insurers
of goods against all risks except the act of God
or the King's enemies, is not now in force in
India. In cases not met by the special provi-
sions of Act XVIII. of l8s4and Act III. of 1865
the liability of carriers for loss Or damage to
goods entrusted to them is prescribed by f j 151
and 15a of the Indian Contract Act (IX. of 1872),
The plaintiff's goods were being carried in a
train of the defendants from Nandgaon to Egat-
puri- During the journey the train was plun-
dered by robbers, and the plaintiff's goods were
stolen.
BAIL WAT COMPANY-f«./rf.
Held, that the defendants were entitled to the
benefit of j iji of the Indian Contract Act (IX.
of 1872), and should be permitted to give
evidence to show that the robbers were not the
servants or agents of the defendants, and that
the defendants (by their servants and agents)
took as much care of the goods as a man of
ordinary prudence would, under similar circum-
stances, take of his owu goods of the same bulk,
quality and value as the goods in question.
KuvkrjiTulsidass v. The G. LP. Rv. Co.
Westropp, C.J., and Sargent,] L L. Rep. 3
Bom. 109, 1878.
3- Carriers— Burden of Proof of Negli.
gtnce—Loss by Fire— Misdescription of Goods —
Actlll. 0/1S65, §9— Act XVIII. of l8S4, i II.
The plaintiff caused to be delivered to the defend,
for carriage from Bombay to Oojcin, cer-
tain goods, among which were twelve bags of
-ugarcandy. His agent, when signing the con-
ignment note at the railway station, erroneously
>ut without any fraudulent intention, described
the contents of the bags as alum, for which a
lower freight was charged by the defendants.
The railway clerk received the goods, and gave
pt note on which the following condition
inted;— " The company further give notice
that they are not responsible for loss or damage
- "ising from fire, the act of God, or civil commo.
■n." In the course of the journey a fire broke
t in the train, and a large protion of the plain.
tiff's goods, including ten bags of surgarcandy,
is destroyed. In an action for damages for
m-delivery : —
Held, 1st, that under the provisions of (9 of
the Carriers Act (III. of 1865) the burden of prov-
ig that the fire which occasioned the loss of his
goods was caused by the gross negligence or
tduct of the servants or agents of the
defendants, did not lie on the plaintiff, notwith.
landing the condition on the receipt note.
2ndly. The misdescription, by the plaintiffs
agent, of the twelve bags of surgarcandy as alum,
onerate the defendants from all liabi-
lity to the plaintiff. The plaintiff, however, was
only entitled to recover, in respect of the lost ten
bags, the value of alum only, and not of surgar-
candy ; while the defendants, on the other hand,
in respect of the said ten bags, charge
freight as for surgarcandy. Ishwardass Gul*b-
The G. I. P. Rv. Co. Westropp, C.J.,
, J ...I. L. Rep. 3 Bom. ISO, 1878.
D.gmzed by G00gle
( 1205 )
DIGEST OF CASES.
RAILWAY COMPANY--™*;,*.
4. Act XVIlt. of I8J4. S ij—Aet XXV.
a/lS?!, § 3— Ticket— Trespass.] The plaintiff
entered a carriage on the defendants' railway at
Sural, to proceed to Bombay, but without a
ticket. The omission by theplaintiff to procure
a ticket arose from a mere mistake, and not from
any intention of evading payment of his fare, or
of travelling without a ticket- At Nowsari sta-
tion he applied to the station master for a ticket
to Bombay, and was refused, but was permitted
by the defendants' servants to proceed in the
train without a ticket. At Balsar the plaintiff
again applied for, but failed to get a ticket, and
the guard ol the train put him into a carriage,
warning him not to get out again, as the stop-
pages would be short. On arrival at Dhandu,
the plaintiff applied to the station master for a
ticket.
During a discussion between the plaintiff's
master and the station master, the plaintiff, at
the direction of his master, re-entered the train.
Ultimately the station master refused to give the
plaintiff a ticket, and ordered him out of the
train, and on the plaintiff not coming out of th<
carriage, sent a sepoy, who forcibly removed th.
plaintiff from the carriage. The plaintiff no
bei ng able to obtain a ticket from the defendant':
servants at Dhandu, and not being allowed ti
enter the train without one, was left behind a
Dhandu, and was unable to go to Bombay befori
the departure of the next train, which involved
a detention of twenty-four hours.
In an action to recover damages for th
forcible and illegal removal of the plaintiff froi
the carriage, and for the illegal detention of the
plaintiff at Dhandu station, and for the illegi
refusal of the defendants to allow the plainti
to proceed in the train to Bombay : —
Held, 1st— That the latter part of i 2 of Ac
XXV. of 1S71 (amending j 1 of Act XVIII. of
1854), which provides that in case the traveller
does not produce his ticket when demanded by
the servants of the Company, he is to pay the
fare or increased fare, applies only t<
of a person who has received a ticket and who
will a
as in the plaintiffs case, travelling without
having paid for and obtained a ticket, wit
intention to defraud; and did not prevent the
Company from treating the plaintiff as a tres-
passer, he having started from Surat under cir-
cumstances which entitled the Company to
treat him as such : for—
78
RAILWAY COMPANY-™*^.
-Though a fraudulent intention is, by f
3 of Act XVIII. of 1854, made an essential con-
n of travelling on a railway without pay.
: of the fare being dealt with as an offence,
ibsence of such intention does not make the
entry into the carriage without such payment
ilawful, or of itself afford any ground for
depriving the company of the right of putting
1 end to such unlawful occupation.
3rdly.— That the conduct of the railway
ficials at the intermediate stations between
irat and Dhandu, if it amounted to leave and
:ense to theplaintiff to travel in the train with,
it a ticket, could only operate until the train
rived at the next station,
dtbly.— That there was no legal obligation on
the station master at Dhandu to give the plain-
:et. The common law right of a tra-
veller to be conveyed by the carrier of passengers
readiness and willingness to pay the usual
i subject to the condition that he offer
f as a passenger at a reasonable time and
A passenger by train has no right, on the
ither to require the station master to leave the
platform, where he has special duties connected
th the train, and return to his office for the
irpose of procuring him a ticket ; or to
quire the distribution of tickets to be resumed
1 his behalf, which has been already closed for
the public outside the station; and that, there-
fore, the plaintiffs removal from the train was
justifiable. Pkatab Daji v. The B. B. & C. I.
Rv. Co. Wuttopp, C.J., and Sargent, J...L L.
Rep. 1 Bom. 63, 1876.
RAILWAY , PASSENGER BY-Tra veiling
without Ticket.
Set Railway Company. 4.
Pkatab Daji v. The B. B. St C. I.
Rv. Co... I. L. Rep. 1 Bom,
68-
RAIN-WATER -Suit to establish a Right to
an Easement as against a Neighbour of
compelling him to receive the— from
Plaintiff's Roof.
See Easement. 2.
MuHANLAL V. 1
Rep. 3 Bom. 174.
D.gmzed by GoOgle
( 1207 )
DIGEST OF CASES-
RATEABLE DISTRIBUTION OF SALE
PROCEEDS.
Ses Civil Procedure Code, Act
VIE of 1859, §5 370, 871.
Hasoon Arra v. Jawadoonissa
I. L. Sep. 4 CaL 39.
RATIFICATION - By Adopted Son of
Agreement made by Natural Father be-
fore Adoption in Derogation of bis
Rights.
See Hindu Law—Adoption. 17.
Ramasawmi Aiyan r. Venkata-
rahaivan.L. Sep. 6 I. A.
196.
RATIFICATION BY COMPANY OF
PARTICULAR ACT OF DTREC
TORS IN EXCESS OF AUTHO
RITT, NOT AN EXTENSION OF
FUTURE AUTHORITY.
See Powers of Director* to Borrow
and Mortgage.
Irvine v. Union Bank of Aus-
tralia...L. Rep. 4 I. A.
86; I. L. Rep. 3 CaL
280.
BATNAXABA, AUTHORITY OF.
See Hindu Law — Authority of
Writers. 8.
Murarji t>. Parvatibat I. L.
Rep. 1 Bom. 177.
RAZINAMA.
See Sodi Raeinama.
Venkatesa v. Skncoda I. L,
Rep. 2 Had. 117.
i Abandoning Miras Rights.
See Miras. 3. 4.
TaRACKAND t>. L.AKSHHAN...I. L.
Rep. 1 Bom. 91.
Jon p. Ball- Ibid. 203.
i Resigning Miras Lands cannot affect Pre-
vious Registered Mortgage by Mirasdar.
See Mirsa. 5.
Ramchandra v. BH1MRAV...L L.
Rep. 1 Bora. B77.
READINESS AND WILLINGNESS TO
DELIVER.
See Contract. 1.
Forbes v. Tullockchand Ma.
nockchand I. L.Rep.3
Bom. 380.
READINESS AND WILLINGNESS TO
DELIVER— contd.
Burden of Proof of — Goods carried by
Railway Company, lor a Reasonable Time
after Arrival.
See Railway Company. 1.
SURUTRAM BHAVA v. ThB G. I. P.
Rv. Co,. I. L. Rep. 3 Bom.
96.
RE-ARRANGEMENT OF JURISDIC-
TION WITHIN BRITISH TERRI-
TORY.
&e Cession of Territory. 3.
Damodar v. Ganesh.10 Bora.
H. G. Rep. 37 ; I. L. Rep.
1 Bom. 367; L. Rep. 3 I.
A. 102 ; L. Rep. 1 App.
Ca. 33S.
See Legislative Power of the Go-
vernor General in Council.
1.8.
Empress v. BuRAH...I. L. Rep.
3 Oal. 63; L L. Rep. 4
Cal. 173; L. Rep. 5 I. A.
178; L.Rep.3 App. Ca.
889.
REASONABLE AND PROBABLE
CAUSE, WANT OF.
See Act XVni. of 1860. 8.
Collector of Sea Customs v,
PUNNIAH ChITHAMBARAH ..I.
L. Rep. 1 Had. 89.
See Champerty. 3.
RakCooharv. Ch under Canto.
L. Rep. 4 I. A. 83; L L.
Rep. 3 Cal. 333.
Malicious Arrest— Damages.
See llama gea. 4.
Raj Chunder v. Shama Soondkbi.
L L. Rep 4 CaL 083.
RECEIPT — REGISTRATION OF — Ac
knowledgment of Receipt of more than
Rs. too as Consideration for Sale of
House requires Registration.
See Registration. 18.
Valaji v. Thomas. ..I. L. Rep. 1
Bom. 190.
D.gmzed by GoOgle
( 1209 )
DIGEST OF CASES.
( 1210 }
RECEIPT— BEGISTBATION OV—amtd.
—— Receipt In Pull or in Pail [or Money due on
Mortgage of Immoveable Property — i!
operating or intended to be used as extin-
guishing or releasing, Mortgage wholly or
in part — requires Registration.
See Registration. II. 13. 14. 22.
Mahadaji v. Vyankajt L L.
Hep. 1 Bom. 187.
Basawa V. KALAPA..X L. B«p. 2
Bom. 469.
Dalif Sing v. Durca Prasad.. I.
L. Hep. 1 AIL 442.
RECEIVES — PBOPERTY IN THE
HANDS OP— Order en Receiver le sell— At-
tachment in Mofussil of Property in hands of Re-
ceiver."] By a decree of the High Court obtained
by D. H. in November 1871, in a suit on a mort-
gage brought by him against B. C. and P. C, it
was ordered that the suit should be dismissed
against P. C. ; that the amount found due on the
mortgage should be paid to D. M. by P. C. ; that
the mortgaged property, some of which was in Cal-
cutta and some in the Mofussil, should be sold in
default of paymeot, and any deficiency should
be made good by B. C. The property in Calcutta
was sold under the decree, and did not realize
enough to satisfy the decree. D. M. thereupon, in
August 1873, obtained an order for the transfer
of the decree to the Mofussil Court for execution ;
after the transfer B. C. died in December 1874,
leaving a widow and an adopted son his represen-
tatives, against whom the suit was revived. The
decree, however, was returned to the High Court
unexecuted. In a suit for partition of the estate of
R. C, deceased, brought by P. C. against B. C. in
the High Court, a decree was made, in February
1871, for an injunction to restrain B. C. from in-
termeddling with the estate or the accumulations,
and for the appointment of the Receiver of the
Court as receiver, to whom all parties were to
give Up quiet possession. B. C. was in that suit
declared entitled to a moiety of the property in
Held, on an application by D. M. to the High
Court for an order that the Receiver should sell
the right, title, and interest of the widow and
son of B. C. in (he estate in his hands to satisfy
the balance of his debt, that D. if. was entitled
to an order that their interest should be attached
in the hands of the Receiver, and that the
Receiver should proceed to sell the same.
BEOEIVEB — PBOPERTY IN THE
HANDS OP-flwW.
Property in the hands of the Receiver of the
High Court cannot be proceeded against by
attachment in the Mofussil. Hem Chundek
ChUNDERo. PrANKRISTO CHUNDER. Pontiff*,
J ....I. L. Rep. 1 Cal. 403, 1876.
RECOGNIZANCE — Cross- Examination of
Witnesses on Proceedi ngs for Forfeiture
of.
See Criminal Procedure Code, Act
X of 1672, §803.
Empress v. NobinChuhderDutt.
I. L. Bep. 4 Cal. 860.
Power of High Court to interfere when for.
feited."] The High Court had no powerto reduce
the amount of recognizances which have been
forfeited, but in a case of hardship the matter
should be referred to Government. Nilmadkub
Ghosal {19 W. Rep-, Cr. Rul. I) and Anon,
(t Bom. H. C. Rep. 138) followed. Empress v.
Nitrui. Hugo. Ainslt'e and Broughten, JJ...I.
L.Rep.3Cal.707;3Cal.Bep. 408,1878.
BECOBD IN APPEALABLE CASK-
Substance of Evidence.
See Summary Trial.
Empress v. Karan Singh... I. L.
Bep. 1 AIL 680.
BECOBD OF BIGHTS — Jurisdiction of
Civil and Revenue Courts in relation to.
See Jurisdiction. S.
SlJNDAR P. K.HUMAN S|NGK...I. II.
Bep. 1 All. 61&
Trust created by Entry in.
See Limitation. .27,
Piarv Lall v. Saltga I. L.
Bep. 2 AIL 384.
See Trust. 1. 2.
Kaual Singh «. Batul Fatima...
Ibid. 460.
Harbha] v. Gum ami.. .Ibid. 493.
RECORDING EVIDENCE APTEB
CLOSE OP CASE FOB DEFENCE.
See Practice— Criminal. 1.
Empress v Balded Sahai.I.
L. Bep. 2 All. 203.
RECOBDING OPINION OF ASSES-
BOBS— Acquittal without Taking or— no
Ground for Revisional Interference.
See Assessor!.
Narain Dass...I. L. Bep. 1 All.
610.
Diarized by Google
( 12" )
DIGEST OF CASES.
{ 1212 )
RECOVERY OP MONEYS UNDULY
REALIZED IN EXECUTION.
See Execution of Decree. 6.
Partab Singh v. Beni Ram. ..I.
L. Hep. 2 All. 81.
REDEMPTION— Before Time fixed.
Set Kanam Mortgage.
Keshava v. Keshava ...I. L.
Rep. 2 Mad. 46,
Beng. Reg. XVII. of 1806, § S— Time for
Redemption One Year from Service of
Notice of Foreclosure.
See Mortgage. 13.
NOHENDER 0. DwARKA LAL...L.
Rep. 5 I. A. 18 ; 1. L. Rep.
3 Cal. 3S7.
Conditional Decree.
See Mortgage. 35. 36.
■ Limitation — Acknowledgment of Mortga.
gor's Title made before Act XIV. of 1859.
See Acknowledgment of Mortga.
gor's Title. 1.
Daia Chandt.SarfarazAli...I.
L. Rep. 1 AIL 426.
'— Limitation — Acknowledgment of Mort-
gagor's Title signed by Agent.
See Acknowledgment of Mort-
gagor's Title. 3.
Rahukani t, Hulasa ... X. t.
Rep. J All. 642,
— — Limitation — Acknowledgment of Mort-
gagor's Title— Signature by Mortgagees,
as such, of Record of Rights and Kha-
taunt Shara (\sami-aar.
See Acknowledgment of Mort.
gagor's Title. 1.
Daia Ciiand p. SakFAraz..I. L;
Bep. 1 All. 117.
■ Limitation — Adverse Possession.
See Mortgage. 87.
Mortgage by Conditional Sale.
See Mortgage. 12.
Thumbasawuy v. Mahomed Hos-
5Ai.i..,L.Kep. k I. A. 241 ;
I. L. Rep. 1 Mad. 1.
By One of Several Mortgagors— Right to
Contribution.
See Contribution. 1.
HlKA ChAND it. Abdal ... I. L-
Rep. 1 All. 4C5.
REDEMPTION— eontd.
OI Pernatthum Mortgage.
See Mortgage. 21.
P. Shekari Varma Vaua ,,
Mahcalom... I. L. Eep. 1
Had. ST.
Right of— of Birt Tenures within the
Talook purchased by the Mortgagee.
See Mortgage. IS.
Rajah Kishekdatt d. Rajah
Mumtaz ALT,..L.Eep.et
A 116.
Right of- of One of Several Joint Mort-
gagors where Mortgagee has purchased
Share of One of such Mortgagors,
See Mortgage. 29.
Kurav Mal o. Puran Mai... I.
L. Rep. 8 All. MS.
Right of— of Purchaser at Sate in Emo-
tion of Decree against Mortgagor.
See Mortgage. £8.
Phul Kuar o. Murii Dhur...I
L. Rep. 2 AIL 627.
Suit for — Onus Proband!.
See Onus Proband!. 6.
Ratan Kuab v. Jiwan Singh...
I. L. Rep. 1 All. 184.
REDEMPTION BUTT— Conditional Deem
See Mortgage. 38. 37.
Jurisdiction— Lands situated in Different
Districts.
See Jurisdiction. 4.
G'RDHARI V. SHKORAJ I. L.
Bep. 1 All. 431.
Set-off of Costs against Mortgage Monej.
See Mortgage. 38.
RE-ENTRY BY MORTGAGOR-On Sa-
tisfaction of Prior Mortgagee, who b»d
ousted Second Mortgagee— Cause 01
Action to Second Mortgagee.
See Dispossession of Second by
First Mortgagee.
Narain Singh v. Shim shoo
Singh.. L. Bep, 4 I. A. IB.
D.gmzed by G00gle
( 1213 )
DIGEST OF CASES.
( 121* )
REFERENCE TO COMMISSIONER
FOR TAKING ACCOUNTS
EFFECT OF.
See Account. 2.
Watson v. Aga Mrhkoee Shk
razee L. Rep. 1 I, A
346.
REFERENCE FOR CONFIRMATION
OF SENTENCE OF DEATH
Power of High Court on — to consid
the Jurisdiction of Sessions Court, after
Order of Division Bench to Magi
(who declined to inquire into Offence for
want of Jurisdiction) to inquire.
See Criminal Procedure Code, Act
X. of 1S72, 5 £07. 7.
Empress v- Sarmukh Singh. ..I.
L. Rep. 8 All. 218.
REFERENCE TO FULL BENCH— Prac-
tice—Conflict of Opinion between Individual
Judges.] A question arising from a conflict of
opinion between individual Judges is not, p
perly speaking, (he subject of a reference ti
Full Bench. Raj Koomar Singh o Sahi
zida Roy... I. L. Hep. 3 CaL 20, 1677, F. B-
S. C. under Right to Bue.^5.
REFERENCE — HIGH COURT AS A
COURT OF— Power of — to alter Sen-
See Criminal Procedure Code, Act
X. of 1872, § 288.
Reg. «. Balappa.,1. L. Rep. 1
Bom. 839.
REFORMATION OF 8UNNUD.
See Act!.. o*1869.2.
Widow ofShumkurSahai*. Ra-
jah Kashi Persad...L. Rep.
4 L A. 198.
REFORMATION OF SUBMERGED
LANDS— Extinguishment of Right of
Occupancy by Non-Payment of Rent
during Submergence.
See Extinguishment of Right of
Occupancy.
Hehnath Dutt v. Ashour Sin-
dar.,.1. L.Rep.4CaL 694.
- — ■ Where land which has been submerged re-
forms, and is identified as having formed part
(even by accretion) of a particular estate, the
owner of that estate is entitled to it. Lopes v.
RE-FORMATION OF SUBMERGED
LANOB-conld.
Muddun Mohun Thakoor (13 Moo. I. A. 467 ; S.
C. 5 Beng. L. Rep. 521) approved. Hursuhai
Singh v. Svud I.ooteAu Khan...L. Rep. 2
I. A. 28 ; 14 Bene. L. R. 268 ;
23 W.R. 6, 1874.
Set Alluvial Land*. 1.
Radha Proshad Singh v. Rah
Coomak Singh... I. L.
Rep. 3 Cal. 796.
See Execution of Decree. 6.
See Estoppel. 2.
GOVINC V. RAHCKANDBR...I. L.
Rep. 3 Bom. 43.
REFUND OF BONUS.
See Darpatni.
Tarachand u. Rah Gobind...!.
L. Rep. 4 Oat. 778.
REFUND OF COSTS PAID UNDER A
DECREE SUBSEQUENTLY &E7EBS.
ED- Interest on Coals.] The plaintiff's suit
had been dismissed with costs by the High
Court on its Original Jurisdiction; and this de-
cree was confirmed with costs on appeal, and the
plaintiff had paid the costs, with interest, of
those decrees. On appeal to the Privy Council
thedecrees of the High Court were reversed
and the case remanded for trial j the costs of ap.
peal to be costs in the cause to be dealt with by
the High Court, but no mention being made
of the costs already paid by the plaintiff to the
defendants. >
Held, that the plaintiff was entitled to apply
■ the Court which made the original decree for
refund of the costs already paid under the
icrees reversed, and need not apply to the
rivy Council ; but he was not entitled to in -
rest on those costs from the date of payment
thereof, but only from the date of the order
ting repayment Doras Ali Khan n.
AbdoolAzeez. Pontifex, J. ..I. L.Eep. 4 Cal,
229, 1878.
REFUND C
' FINE— On Quashing Convic-
See High Court Criminal Proce-
dure, Act X. of 1878, % 147. 3.
Reg, v. Hadji Jeehvn Bvx L
L. Rep. 1 CaL 354.
by Google
( 1218 )
DIGEST OF CASES.
( M« )
REFUSAL TO CONFIRM AN AWARD-
Appeal against a.
See Appeal— Civil. 34.
Howard v. Wilson. ..L I.. Rep.
4 Cal. £31.
See Penal Coile, § 173.
Bhoobuneshwar Dutt I. Ii.
Rep. 3 Cal. 031.
REFUSAL TO REGISTER— Appeal.
See Appeal— Civil. 10.
Svvn Mahomet H ossein v.
Hadzi Abdulla.. I. L. Rep.
3 Cat. 727.
— — Person " claiming under a Document."
See Registration. 27.
Bish Nath I. L. Rep. 1 AIL
318.
— — - Review ot— by Zillah Judge.
See Practice— Privy Council. 8
Meer Reasut Hossein v. Hadji
, . Abdoollah...L. Rep. 1 I.
A. 73.
And see L. 'Rep. 3 I. A. 221 ; I.
L. Rep. 3 CaL 181.
Under Review. 8.
REFUSAL TO ORDER REGISTRA-
TION—Review of.
Set Review. 8.
Reasut Hossein e. Hadji Ab-
doollah.-.L. Rep. 3 LA.
£31 ; I. L. Rep. 3 Cal. 131.
REFUSAL TO REHEAR APPEAL
HEARD EX PARTE.
See Appeal— Civil. 37.
Rakjas v. Bajj Nath. ..I. I,. Rep.
3 All. 687.
REGISTERED MORTGAGE— Priority of—
over Subsequent Registered Sale with
REGISTERED MORTGAGE WITH
POSSESSION— Priority between— and
Prior Unregistered Mortgage of which
Registration Unnecessary.
See Mortgage. 6.
TtlKARAM r. RaMCHANDRA.,.1. L.
Rep. 1 Bom. 314.
REGISTERED AND UNREGISTERED
DOCUMENTS — Priority between— of
which Registration Optional.
See Registration. 30.
Ahmad Buksii b. Gohindi.-.I. L.
Rep. 2 AIL 316.
REGISTERED AND UNREGISTERED
DOCUMENTS, PRIORITY BE-
TWEEN—Registered Deed of which
Registration Compulsory, and Unregister-
ed Deed of which Registration Optional
under Act VIII. of iSyi.
See Registration. 25. 38.
Bhola Nath v. Baldeo L I*
Rep. 3 All. 198.
Oochra Singh r Ablakhi Kookr.
I. L. Rep. 4 Cal. 538-
REGISTERED TALTJKDAR MAT BE
TRUSTEE.
See Act I. of 1869. 3. 0. 6. 7.
Widow of Shunkur Sahai v.
Rajah Kashi Persad i.
Rep. 4 I. A. 198.
Tiiakoor Hardeo Bux v. Tha.
» Jan
I SlHC
See Registration. 3.
See Mortgage. 8.
Shrinoapure d. Pethr I. L.
Rep. 2 Bom. 663.
Rep. 4 L A. 178; t L
Rep. 3 Cal. 522; L. Rep.
6 I. A. 181.
Thakur Shere Bahadur Singh
i. Thakurani Dariao Kuar.
I. L. Rep. 3 Cal. 646.
REGISTRATION— In Absence of Vendor.
See Registration. 3.
Of Acknowledgment of Receipt of more
than Rs- loo as Consideration on account
of Sale of Immoveable Property, Neces.
See Registration. 13.
Admission by some of the Parties to a Deed
of their Execution, but Denial by them of
its Execution by the other Parties — Pro-
cedure for Registering Officer.
See Registration. 33.
Digitized byGOO^Ie
DIGEST OF CASES.
( 1S1B >
REGISTRATION contd.
' Of Agreement (charging Land) to compro-
See Reg-istrfttion. 5.
-— Of Agreement (o Create an Interest in Im-
moveable properly.
See Registration. 13.
See Rogiatrction. 10.
■' Of Assignment of Decree for Sale of Mort-
gaged Property.
See Be gist ration. IB.
— ■ Of Assignment of Mortgage.
See Assignment of mortgage.
Ganpat o. Adakji.,.1. L. Rep. 8
Bon. 313.
i Of Assignment for leas than Rs. too of
Mortgage for more than Rs. loo.
See Registration. 7.
— Certificate of— Effect of.
See Registration. 33.
— Of Certificate of Sale.
See Registration. 4.
Of Compromise of Suit.
See Registration. S.
■ Computation of Value of Interest created
in Immoveable Property for purposes of.
See Registration 1. 7. 8. 9. 19 to
31.
— — Of Deed of Partition.
See Registration. 9.
See Evidence. 18.
Kachubhai »■ Krisknahkai...I.
L. Hep. 2 Bom. 635.
— Of Deed of Sale executed, and presented
for Registration, by Vendor alone.
See Registration. 37.
— Of a Diml-Fehrut,
See Dowl-Fehrist.
GuNGAPERSAD V. GoGUN SlNOH...
I. L. Rep. 3 Cal. 333.
REGISTRATION- c ontd.
Of Indorsement by Judge on Mortgage
Deed at Sale of Mortgaged Property in
Execution of Decree on Mortgage.
See Registration. 5.
Of Indorsement on Deed of Sale of House
Returning Deed owing to Purchaser's
Inability lopay.
See Incomplete Contract,
Ukedhal v. Davu..X L. Rep. 9
Bom. 647.
Of Lease.
Apa Budqavda b. Nabhahi An-
NAJEE...I. L. Rep. 3 Bom.
See Registration. 11.
Of Letter amounting to Release,
Sec Registration. 6.
Of Memorandum of Association.
See Agreement to take Shares in a
Company.
AkaNdji ,. The Neriad S. & W.
Co.. . I. L. Rep. 1 Bom. 330.
May be completed at any Time.
See Registration. 3.
Priority between Registered Mortgage and
Subsequent Registered Sale with Pos-
See Registration. 3.
Priority between Registered Mortgage with
Possession without Notice of Prior Unre-
gistered Mortgage of which Registration
Optional.
See Mortgage- 5.
TuKARAHe. RAMCHAHDRA...I. It.
Rep. 1 Bom. 314.
Priority between Registered Deed of which
Registration Compulsory under Act VIII.
of i8ji, and Unregistered Deed of which
Registration Optional under same Act
Sec Registration. 35. 36.
Digitized by G00gle
( 1310 )
DIGEST OF CASES.
REGISTRATION -contd.
— — Priority between Registered Deed of which
Registration Compulsory under Act III.
of 1S77, and Unregistered Deed of which
Registration Optional under Act VIII. of
1871.
See Registration. 30.
Priority between Registered and Unregi:
tered Documents of which Registration
Optional
See Registrat ion. 30.
— — Priority between Registered Deed under
Act XX. of 1866 and Deed which might
have been but was not Registered under
Act XlX.of 1S43.
See Registration. 83.
See Mortgage. 26.
Venkatanarasammal v. Ra-
MUH...I. L. Hop. 3 Had.
198, 1879.
■ Of Receipt from Mortgagee to Mortgagor.
See Registration. 13. 14. 33.
Refusal to Register.
See Registration. 37.
Refusal to Register — Appeal.
See Appeal— Civil. 10.
Sveii Mahomet v. Hadzi Abdul-
lah.. . I. L. Bap. 3 Cat. 727.
— Refusal to Register— Review of.
See Practice— Privy Council. 8. 3.
Meek Reasut HoasEiH v. Had-
ji ABDOOLLAH...Ih Rep. 1
LA. 73.
See RoviOW. 8.
S. C. L. Uep. 3 I .A. 221 ; I. L.
Rop.BCal. 131.
Of Release.
See Registration. 6.
Suit to enforce.
Set Registration. 81.
. Of Sulehnama.
Ste .Registration. 5.
Of Transfer of Shares.
See Presidency Banks Act XI. of
1876, §§ 17, 21.
Mot hook hoh un Rov v. Bank of
Bengal... I. L. Rep. 3 Cal.
392.
REGISTRATION - -conid-
See Registration. 34.
L Optional Registration — Principal
and Interest.] A bond for the payment of
Rs. S3-8-O on demand with interest at 2 per cent.
per mensem, which charges immoveable property
with such payment, does not, though the
amount due on it when demand is made may
exceed Rs. 100, purport to create an interest in
immoveable property of the value of Rs. loo with-
in the meaning of the Registration Act, and its
registration istherefore optional. Karan Singh
it. Ram Lal. Turner and Oldfield, JJ I. X..
Rep . 2 All. 96, 1878.
S. Defect in Procedure — Absence of
Vender— Act XX. 0/1866, §536,84,88.] A deed
of sale executed on the 10th of July 1S68 was
presented for registration on Zand October tS6S,
within the due period of four months from
the date of its execution. The vendors not ap-
pearing before the registering officer, were sum-
moned by him under the provisions of § 37 of
Act XX. of 1866, and on their failure to attend
the day fixed for their appearance, the re-
gistering officer, after satisfying himself by evi-
dence that the vendors had executed the deed,
:gistered it. After certain proceedings, in which
the deed was held by the District and High Courts
be an unregistered deed, andin which the
High Court of the North- West Provinces directed
due registration, the deed was again register-
on the 16th and 25th of May and the 5th of
June 1871.
Held, that though the High Court in ordering
the latter registration had acted without juris-
der § 84 of Act XX. of 1866 (the High
Court of the N. W. P. having no ordinary Origi.
nal Civil Jurisdiction), yet such registration wax
valid and in time. Though an instrument must
be presented for registration within four months
from the date of its execution, no time is fixed by
the Act within which a deed presented and ac-
cepted for registration must be registered-
Semble, as to the former registration, though a
Registrar acts in contravention of $ 36 if he regis-
ters a deed without the vendors having appeared
before him, it does not follow that such registra-
tion is thereby rendered null and void. Sha
Lall Pandayb- Sha Koondcn Lall-
L. Rep. 2 I. A. 310 ; IK Beng. L. B. 338 ;
24 W. B. 75, 1876.
D.gmzed by G00gle
DIGEST OF CASES.
( 1822 )
REGISTRATION--™^/
3. Mortgage—Subsequent Sale — Posses
Ji'on.] A registered mortgage is entitled it
priority over a subsequent registered sale though
accompanied by possession.
D. in 1864, by a duly registered deed, mortgaged
to the plaintiff certain lands. The deed provided
for the sale of the lands on failure in the repayment
of the sum advanced. On default made, the plain-
tiff sued to enforce this provision. Pending the
suitZX sold the land to the defendant, who got his
deed of sale registered, and entered into posses-
sion. The plaintiff subsequently obtained a de.
the purchaser The plaintiff then sued the defen-
dant to recover possession.
Held, that he was entitled to recover. His
rights as mortgagee were made as effectual by
registration as by possession, so as to prevent
their being impaired by subsequent transactions,
and included the right of bringing the whole
property, as it subsisted at the time of the
mortgage, to sale- It was so brought to sate,
and the purchaser in execution acquired 3 right
free from any created subsequently to the
mortgage, and subject to it. S. B. Shringa-
purb j. S. B Pethe. West and Pinhey, JJ ..
I. L. Rsp. 2 Bom. 863, 1878.
4. Certificate of Sale— Endorsement by
Judge on Mortgage Deed.-] In a suit to recover
certain property purchased by the plaintiffs at a
sale in execution of a decree on a mortgage,
they relied, as proof of their title, on an endorse-
ment on the mortgage deed, made and signed
by the Subordinate Judge, in the following
terms :>—" This deed was purchased on the 10th
December 1875 at a public sale held in the
Court of Dehra Dun, by Narain Das and Kana-
hia Lai (plaintiffs), for Rs. 2,000, under special
orders passed by the Court on the 23rd Novem-
ber 1875, in the case of Narain Das and Kanahia
Lai against Richard Powell for self and as
guardian of the heir In possession of the estate
left by Matilda Powell ":—
Held by Spankie, J.— That the endorsement
operated as a certificate of sale, and could not
be regarded simply as an order of Court, and, as
it conferred upon the purchasers the rights of
the mortgagee, and gave them an interest in
immoveable property exceeding Rs. 100 in value,
required registration.
By Oldfield, J— That the endorsement by
which the deed of mortgage was assigned to the
79
REGISTRATION- -contd.
plaintiffs as purchasers of it at auction sale, was
an instrument which required registration. Ka.
.nahiaLalj.. Kali Din. ..I. L.Sep 2 All. 383.
0. Sulehnama — Mortgage — Agreement
creating a Charge on Immoveable Property.']
Certain immoveable property having been
attached in execution of a decree, objections to
the attachment were raised by third persons who
claimed the property. Subsequently the plead-
ers for the decree- holder, the judgment-debtor,
and the claimants, respectively, in pursuance of
an arrangement come to by all parties, jointly
filed in Court asuMHnma, by which the objec-
tors, who had purchased the judgment debtor's
rights in the attached property, and had obtained
possession, undertook to pay the amount of the
decree, which exceeded Rs. 100, within one
year; and agreed that in default of such payment,
the property should be sold by auction in satis-
faction of the decree ; and that until payment the
property should be hypothecated, the objectors
agreeing not to transfer the same. The decree-
holder having sued upon this document, claiming
to recover the amount of the decree by the sale
of the property comprised in it : —
Held, that the document required registration
id not being registered no suit was maintain-
Cases decided by the High Court in which the
sulehnama having been relied on, not as con-
ining the hypothecation itself, but as evidence
ly of a separate parol agreement, or in which
decree having been made in accordance with
the terms of the compromise, was held not to
registration,distinguished. Surju Pra-
Bhawani Sahai. Stuart, C.J., and
Spankie, J LL Rep. 3 All. 481, 1879.
6, Release — Letter amounting to Re-
lease—Stamp—Admission in Evidence of Un-
■tamped Document — Objection first raised in
Court of Appeal— Fraud.] A. executed a bond
o B., mortgaging, among other property, the
■illage of Chand Kera. He subsequently sold
his village to G, concealing the fact that it
had been already mortgaged to B. When C.
discovered this fact he threatened to prosecute
A., who then wrote to B, proposing to substitute
share in the village of Kelsa, which he alleged
belonged to htm, as security in the place of the
llage Chand Kera. A. accepted the proposal
I letter which was neither stamped nor regis-
red- It turned out that the share in the village
of Kelsa did not belong to A., but to another
D,gltlzed by G00gle
( 1228 )
DIGEST OF CASES.
( 1«* )
REGISTRATION -contd.
person. B. having sued upon his bond, claiming
to enforce it upon the village of Chand Kera, A.
set up as a defence that B. had accepted his
proposal to suhstitute the share of the village of
Kelsa for the village of Chand Kera, tendered in
evidence B.'s letter, the reception of which was
not objected to, and it was admitted and acted
On by the Court of first instance; —
Held, that the letter operated as a release, and
purported to extinguish a contingent interest
in immoveable property of the value of more
linn Rs. loo, and therefore required to be both
stamped and registered before it could be re-
ceived in evidence.
Held, also, that the objection as to the want
of stamp on a document may be properly taken
for the first time on regular appeal, and that the
Appellate Court is bound to entertain it, but
may direct that the document be stamped and
the penalty imposed,
Semite, the Appellate Court is bound to no-
tics and entertain the objection of the want of
registration of a document requiring registra-
tion, which has been received without objection
by the Court below.
Mart Riddell Currit v. V. S. Mutu Ramen
Che(ly(3 Beng. L. Rep. 1 26) discussed. Bastma
v. Kaikapa (I. L. Rep. > Bom. 489) approved.
Savdar Ali Khan v. Lachman Das. Pearson
and Straight, JJ I. L. Rep. 3
All. 554, 1879.
*f Khoob Lall v. Jungle Sing.. ..I.
L. Rep. 8 Cal. 7S7.
Under Appeal— Civil. SO.
And Apzal-un-Nissa v. Tej Ban„.L
I.. Rep. 1 All. 720.
Under Error not Affecting the
Merita.
7. Act XX of 1866, i If— Assignment
ef Mortgage.] A deed of assignment for a consi-
deration of less than Rs. loo, of a mortgage for
1 consideration of Rs. 100 or upwards, does not
need registration. Satra Kvmaji 0. Visram
HasgAvda. Westrofip, C.J., and N. Harriotts,
J I. I*. Rep.3 Bom. 07,
1877.
8. Act XX. of i860, , IJ—Determina.
Hon of Value — Consideration.'] In considering
whether a mortgage is of the value of Rs. 100 or
upwards, the value of " the right, title, or inter-
est" created by the mortgage must be estimated
REGISTRATION- -amid.
by the amount of the principal money secured
thereby, without any regard to the duration of
the relation of mortgagor and mortgagee, or to
tlie rate or continuance- of the interest payable.
The words " or in future" which occur in i 17
of Act XX. of 1S66 and of Act VIII. of 1*71,
have reference to estates in remainder or rever-
sion in immoveable property, Or to estates other-
wise deferred in eajoyment, and not to interest
payable in future on principle moneys lent on
the security of immoveable property. Darsnan
Singh v. Hanmanta (I. L. Rep. I All. 274) dis-
sen ted from. Na«A Lakshwan ». AnamtBa-
BAjt Westropp, C.J., and Sfelvitl, J I. It
Rep. 2 Bom. 868, 1877,
8. ActXX.oflM, I 17— Partition Deed
— Value.] A deed of partition of immoveable
property between Hindus, if it does not create,
at least declares, an interest in immoveable
property ; and if the value of the property ex-
ceeds Rs- 100, registration of the deed is com-
pulsory, under ( 17 of Act XX- of i366, notwith-
standing that partition deeds are amongst those
enumerated in f iS which are optionally regis-
trable. SlIANKAR RaHCHANORA «, VlSHNU
Arant. West and N. Harridas, JJ I. L.
Rep. 1 Bom. 07, 1875.
10. Act XX. 0/1866, ( 17— Correspond.
ence — Agreement to buy Future Interest in
Land.] A correspondence between A. and B.
amounted to a contract for the purchase of a
future interest in immoveable property 1 —
Held, that such correspondence did not re-
quire registration under Act XX. of 1866- Port
Canning Land, Ae., Co. o.Smjth...L. Rap. 1
X A. 1S4 1874 ; I,. Bep.
0 P. C. 114.
11. Act XX. of tiff, i 17— Madras Act
VIII. 0/1665, * 3~ Puttah— Lease,] A document
professing to be a lease, but unregistered, was
granted by a zemindar to the defendant's grand'
father, its terms beings — " In consideration of the
assistance you have rendered this Samastanam
(zemindary), you requested that the Kasha
(chief) village of Selugai should be leased tor
you for forty years, fixing a favourable poruppm.
The aforesaid Selugai village has been accord.
ingly leased to you for forty years, fixing the
poruppa at Rs. 400 per annum. You shall
therefore raise the required crop and enjoy ; and,
agreeably to the Itttftirnama (agreement) yoO
have given, you shall Continue to pay the finer}
Di,iii,.db»Goo<^le
( IBS )
DIGEST OF CASES.
{ L2» )
BEGISTBATIOH-co* id.
Poruppu, according to the instalments of tist,
year after year. " The value of the village was
Rs. 1,700 a year.
Hild, that this document was not a put/ak
within I 3 of Madras Act VI II. of 1865, and, not
being excluded from the operation of i 17 of
Act XX. of 1*566, was inadmissible in evidence
and did not affect the estate.
Section 3 of Madras Act VIII, of 1865 seems
to be confined to the relation of tenants who are
cultivating the land, and their immediate land-
lords. The whole Act may not be confined to
that class, bat the intention appears to be, by
(3and the sections which specifically referW it,
to regulate the relation of landlords and tenants
of that description, and not to embrace all cases
of persons holding under others. It provides
for what shall be done where' there is an exist-
ing relation of landlord and tenant, and requires
that the landlord shall in that case enter into
a written engagement with his tenant. Raua-
swamiChetti v. The Collector of Madura...
L. Hep. 0 1. A. 170, 1879;
I. L. Bep. 2 Mad. 07.
18. Act Vtll. of 1071, i IJ— Acknow-
ledgment of Receipt of Consideration.] The
defendant executed to the plaintiff an " agree-
ment paper," bearing date the 28th April lSf4,
in the following terms: — " There is my tiled
bungalow situated at East Street Lane. The
agreement for the sale thereof; to yon by me for
Rs. 4,300 was to have been made this day, bit
my creditor, Balkrishna Sapaya, has gone to
Bombay. Ou his return, after about twenty
days, I wilt matte and deliver * deed of sale in
accordance with what is written above. Should
I not make and deliver the deed of sale within
that time, or on the return of that person, I will
make good whatever loss yon may sustain.
And Rs. 100, which you have now paid as
earnest, will be considered as forfeited if you
do not buy (it). You shall have no claim
thereto, and the said Rs. 100 which you have
paid I have received in ready cash in full."
In a suit in the nature of a suit for specific
performance brought by the plaintiff to compel
the defendant to execute and register a deed of
sale in accordance with the terms of the above
Agreement : —
Held, that the agreement required registration
under Act VIII- of 1871, f 17, CI. 1 and 3, as it
distinctly acknowledged the receipt of Rs. too
BEGHSTBATION-fl».M.
as part of the consideration for the sale to the
plaintiff of the house for the sum of Rs. 4,300,
and operated to create an interest in the house
of the value of Rs. 100 and upwards. Valaji
IsAjt v. Thomas. Westropp, C.J, and JHelviU, J...
X. L, Bep. 1 Bom. 190, 1870.
13. Act Vlll. of 1871, 517— Mortgage
Receipt.] A document purporting to have been
passed by a mortgagee to his mortgagor,
reciting the demand by the mortgagee of re-
payment of his mortgage debt before the due
date of the mortgage! the compliance by the
mortgagor with that demand, and his conse-
quent re-mortgage to a third person in order to
raise the money for that purpose ; and the pay-
ment by such third person to the mortgagee, on
account of the. mortgagor, of the amount of the
mortgage debt; and which stated that such
second mortgage demanded possession of the
original mortgage bond, and that the first
mortgagee, on the direction of the mortgagor,
had handed over the bond to the second mort-
gagee, and made over possession to him of the
mortgaged property, and finally that there was
nothing remaining due to the first mortgagee on
the mortgage bond, is a document which under
CI. Zand 3 of i 17 of Act XX. of 1S66, as
well as under CI. > and 3 of f 17 of Act VIII.
of 1871, requires registration, and if unregistered
is, by $ 49 of the same two Acts, inadmissible
in evidence to show that the original mortgage
lien on the land has been extinguished. But
that fact may be proved by other documentary
or proper oral evidence. M ah Ada] 1 e. Vvanka-
iiGovIND. Westropp, C.J., and West J, ..I. T*.
Bop. 1 Bom. 107, 1878.
14. Ad VIU. 0/1871, t 17— Receipt—
Xeleast— Point not taken in Court betom.] Held,
that the Court is bound, in regular appeal, to
entertain an objection that a document is
invalid for want of registration, even though no
objection was taken to its admissibility in the
Court below.
Held, also, that a document called a receipt,
but intended and endeavoured to be used to
prove the release of a claim secured by a
mortgage, and not merely as a receipt for
money paid, is, if unregistered, inadmissible in
evidence for that purpose. Basawa Gukbasa.
wa«. Kalapa. West and Pinhey, JJ LL,
Bep. 9 Bono. 489, 1871.
D.gmzed by GoOgle
( uw )
DIGEST OF CASES.
(
)
BEaiSTRATION-ro"W.
15. Act VIII. ef 1871, i n— Assign-
ment of Decree for Sal, of Mortgaged Property]
Where a mortgagee obtained a decree for
Rs, 1,600 against his mortgagor, to be realised by
the sale of a house belonging to, and mortgaged
by, the defendant, and his heir assigned this
decree for Rs. 700, by an instrument in writing,
to a purchaser, who proceeded to execute the
Held, that the assignment was an instrument
the registration of which was compulsory. Go-
pal NaRraIN p. Trimbak SaDASHIV. Westropp,
C.J., and Kembatl, J ...I. L. Rep. 1 Bom. S67,
1870.
16. Act VIII. 0/1871. 1 17-Value of
Right, Till* or Interest— Consideration.] When
it is necessary to determine whether an instru-
ment, other than a deed of gift, purports or
operates to create, &c., any right, title, or
interest of the value of Rs. 100 or upwards to or
in immoveable property, the test of value to be
adopted is the consideration stated in the
instrument, whether it be one of sale or of
mortgage, to be given to the grantor, and not
r other
benefit which may result from the transaction to
the grantee, whether he be vendee or mort-
gagee.
The words "or in future," in § ij of Act V 11 1
of 1871 and Act XX- of 1866, have reference tc
estates in remainder or reversion in immoveable
property, or to estates otherwise deferred in en
joyment, and not to interest payable in future 01
principal money lent on the security of immove
able property. Nana Lakshman e. Anant
BabajI. Westropp.C.)., and Mehill, J I. Ir,
Bep. 2 Bom. 863, 1877.
17, Act VIII. of 187I, § 17 — Com-
putation of Interest created in Immoveable Pro-
perty.'] The words, in § 17 of the Registration
Act (VIII. of 1S71)," present or future," " vested
or contingent," point not to the value or its ascer-
tainment, but to the right or interest in the land
which is to be created as a security. If the pre-
sent charge or interest created is of a value less
than Rs. 100, registration is needless, and for
registration purposes a future contingent value
is useless.
' Therefore a bond by which, in consideration
of Rs. 95, certain lands were mortgaged, thi
mortgagor agreeing to pay Rs. 60 worth of paddy
and ragi, and Rs. 35 in cash, within a certain
BEQISTEATIOH- contd.
date, and in default to pay an increased quantity
of grain, and interest on the cash at the rate of
Rs. ai per cent, per month, wns held not to require
in. NarasavyaChettib.GijrwvaM'a
Cheiti. Morgan, C.J., and Kinderdey, J t
L. Sop. 1 Had. 378, 1878-
18. Act VIII. of 1871, \ \1~Cctnpttta-
Hon of Value of Interest created in Immoveable
Property — Principal Sum — Interest.] A deed
purporting to secure the sum of Rs 9; advanced
certain property, giving the lender possession
of the land for four years certain ata yearly rent
of Rs. 8-ia, Rs. 6-12 out of such rent to be held
by the lessee in satisfaction of interest on the
m advanced, such possession to continue on
e same terms until the money was paid, does
it require registration.
PerAinslie, J.— The words of the Act {VIII.
1 871), construed favourably to the validity of
e instrument, show that the value of the pro-
perty must be taken to be that which the parties
themselves agreed on, and that, therefore, the
passed under the deed ought to be valued
for the purpose of determining the necessity of
registration, at Rs. 95.
Per White, J — " Looking to the natural sense of
the language used in the Registration Act, I should
say that the value of the interest in the present case
iswhat thepossesstonol the property rent-free for
lour years is worth to the lessee (defendant).
The parties have fixed the amount of rent which
will thus come into the defendant's pocket,
under the instrument, at Rs. 6-12 per annum.
The entire value thereof of four years' posses-
sion would be Rs. 27, and the document, there-
fore, would not require registration. The
contingent circumstance that the defendant may
continue to hold for more than four years, ought
not to be taken into account in determining the
value of the interest for the purpose of regis-
tration. I feel some difficulty in treating the
Rs. 9; as the value of the interest in the lands."
Ram Doolakv Koobr v. Thacoor Rov...L L.
Bep. 4 CaL 61 ; 3 Cal. Bep. S47, 1876.
19. Act VULof\V}\, , 17— Compu-
tation of Value of Interest created in Immoveable
Property.] The value of the interest created by
a mortgage of immoveable property is estimated ,
for the purposes of the Registration Act VIII. of
1871, not by the amount of the principal money,
thereby secured, but by the amount of such
money, and the interest payable thereon.
D,gltlzed by G00gle
DIGEST OF CASES.
( 1W0
REGISTRATION— ™>z id .
- Consequently, a bond, dated oth August 1S73,
which charged certain immoveable property with
the payment on the 31st May 1874 of Rs. 98,
and interest thereon at the rate of I per cent,
per mensem, held to require registration. Due-
than Singh v. Anmanta (I. L. Rep. I All. 174)
followed. Nana laishman v. Await Babaji (1. L.
Rep. 2 Bom. 353) dissented from, Rajpati Sjnoh
v. Rah Lukhi Kuar. Pearson and Oldfield, )].
I, L. Rep. 9 AU, 40, 1878.
SO. Act Vf/I. 0/ 1S71, j vj-Mort.
gage— Compulsory and Optional Registration—
Interest — Priority.'] In 1871 certain persons
gave the plaintiff a bond for the repayment of
Rs, 75i which charged certain lands with such
payment. The bond did not need to be, and was
not registered. In 1874 the obligors gave the
defendant a bond for the repayment of Rs. 99,
by which they agreed to pay the principal
amount within six months from the date of the
execution of the bond, and to pay interest on the
principal every monthatthe rate of two per cent.,
and that if they failed to pay such interest in any
month, the obligee should be at liberty to sue to
bond," and they charged the same land with the
payment of " the amount mentioned
bond." In 1874 the defendant obtained
cree on his bond, declaring his lien on the land;
and in 1876 (he plaintiff obtained a similar
decree on his bond. In 1876 the land was at-
tached in execution of the defendant's decree
and in 1877 in execution of the plaintiffs de.
cree. The plaintiff became the auction purcha.
■er of the land at the sale held in execution of
these decrees. The Court executing the decrees
directed the sale proceeds to be paid to the
defendant as the first attaching creditor. In
suit brought by the plaintiff to recover tl
money so paid : —
Held, that there being in the bond executed
. the defendant no stipulation preventing the
debtor from repaying the loan at any t
the six months after which it becam
able, it could not be said that any portion of the
interest accruing on the principal was secured
for certain, in the sense that it could be defii
tively calculated and taken into account at the
date of 'the execution of the bond ;
principal amount secured being less than Rs.
loo, the bond did not require registration ; but,
having been registered, was entitled to take
effect against the plaintiff's unregistered bond.
REGISTRATION- amid.
Held also, that the property having been first
attached by the defendant, he was, for that rea-
well as because his bond was registered,
entitled to preference over the plaintiff. Au-
uksh b. GoBINDt. Pearson and Spankie,
JJ I L. Rep. 2 All. 216, 1870.
91. Act VIII. of 1871,1 17— Mort-
gage- Computation of Value of Interest created
in Immoveable Property.] A bond dated list d
March 1871 charged immoveable property with
the payment on the 5th of June 187 1 of Rs. 99,
— ■"th interest thereon at 2 per cent, per men-
Held, to require registration as creating an
lerest in immoveable property over Rs. too in
value, Inasmuch as it secured the repayment of
Rs. 99 plus Rs. 6, the interest for three months.
Darshan Singh «. Hanwanta, Stuart, C.J.,
and Turner, J... X L. Rep. 1 All. 974, 1876.
99, Ad VIII. of 1871,8 17— Receipt for
Sum paid in Part of Mortgage Debt— Parol Evi-
dence of Payment.] A receipt, for a sum paid
part liquidation of a bond hypothecating im-
»veable properly must, under the provisions
of fj 17 of Act VIII. of 1871, be registered, so as
to render It admissible as evidence of the pay.
:nt. But, under illustration («), § 91 of Act
of 1872, such payment may be proved by
parol evidence, which is not excluded by reason
of the inadmissibility of the receipt. Da up
Durga Prasad. Pearson and Turner,
J] I- L. Rep. 1 AIL 442,1877.
Act VIII, of 187 1, ( ZS-Effeelof
Certificate.'] A deed of sale purporting to be
ited by a Mahomedan woman and her two
sons was presented for registration. The sons
appeared, and admitted their own execution,
but denied that of their mother, and objected to
the registration of the deed. The Registrar,
notwithstanding this objection, registered the
deed. The High Court held that, the execution
of the deed not having been admitted by the
mother, and her authority for its execution hav-
ing been denied, it was improperly registered,
having regard to * 35 of Act VIII. of 1871, and
could not be received in evidence as against the
Held, that though the words in g 35 " if all
or any of the persons by whom the document
purports to be executed deny its execution, or
if any such person appears to be a minor an
idiot, or a lunatic, or if any person by whom the
by Google
( l«l )
DIGEST OF CASES.
REGISTRATION— could.
document purports to be executed is dead, and
his representative or assign denies the execu-
tion, the registering officer shall refuse to regis-
ter the document," taken literally, seem to require
the registering officer to refuse to register a
deed which purports to he executed by several
persons if any one of them deny the execution ;
yet such a construction would cause great diffi-
culty and Injustice, which it could not be sup-
posed the Legislature contemplated, and would
be inconsistent with the language and tenor of
the rest of the Act ; the words, therefore, should
be read distributive^, and be construed to mean
that (he registering officer shall refuse to regis-
ter a document quoad the persons who deny the
execution of the deed, and quoad any person
who appears to be a minor, an idiot, or a
lunatic ; and that there was no reason for ex
tending the clause further than this, so as tc
destroy the operation of the deed as regards
those who admit the execution, and who are under
no disability, which would be the practical effect
of a refusal to register at all.
The proposition laid down by the High Court,
" that unless a deed be registered in accordance
with the substantial provisions of the law, it must
be regarded as unregistered, though it may, in
fact, have been improperly admitted to regis-
tration," was too broadly Stated, if the High
Court be understood to mean that in all cases
where a registered deed is produced, it is open
to the party objecting to the deed, to contend
that there was an improper registration, that
the terms of the Registration Act in some sub.
stantial respect have not been complied with.
The certificate of registration provided for by § 60
Is that which gives the document the character
of a registered document, and the Act expressly
says that that certificate shall be sufficient to allow
of its admissibility in evidence, without inquiry
whether the same was properly granted. Sah
Mukkun Latl PanSay v. Sah Koondun. Loll (L
Rep. 2 I. A. 210) approved. Ma HO H En Bwaz v.
Bixj Lall X,. Sop. 4 X. A'
166 ; I. L. Rep. 1 All. 468, 1877.
24. — -Act VIII. 0/187 ". § 49— Btidntct
—Inadmissibility of Vnrtgittered Document in
Suit for Money.] M. D. sued ft. S. in the Small
Cause Court to recover Rs. 203 due on the fol-
lowing document : — '* I, P. S., do write this
land-mortgage deed to the effect as follows : —
That 1 now possess by right of purchase five
annas, six and a half gundtt of lend, and, hav
REGISTRATION --»»«.
ing need of money, I borrow the sum of Rs. 100
from you on mortgage thereof, with interest at
the rate of Rs. za per cent, per annum, which
interest I shall pay monthly. In default of pay-
ing interest monthly, I shall have to pay com-
pound interest at the rate of one anna for interest
money, and shall repay the whole amount within
the 13rd day of Chaitro of the year. In de.
fault of my paying the debt within the term
aforesaid, you shall have to get the mortgaged
property sold, by instituting legal proceedings,
Should the sale thereof not cover the whole
amount, you shall have to realize the balance
by having my other landed properties disposed
of. On the above conditions I do hereby
execute this mortgage deed, having mortgaged
the above piece of land together with the title-
deeds thereof."
The deed, being unregistered, was held inad-
missible in evidence. On a reference to the
High Court -.—Held, that the unregistered do-
cument being in its terms indivisible, and dis-
closing one transaction only which it would be
necessary for the plaintiff to prove for the pur-
pose of making out his case, was under $ 49 of
Act VIII, of 1871, inadmissible in evidence for
the purpose of proving a fact for which regis-
tration was unnecessary. Mattomgenbt Dos-
sal v. Ramnakbain Sadkkan. Garth, C.J.,
and Markby, J II. Rep.4 C*l
83 ; 9 Oal. Rep. 438, 187S.
S5. Act VIII. Of 1871, f SO— Priority-
Optional and Compulsory Stgatratum.'] A docu-
ment creating an interest in immoveable pio-
perty, the registration of which under Act VOL
of 1S71 is compulsory, and which is registered
under that Act, does not, under | 50 of that Act,
take effect as regards such property against an
unregistered document relating to such land, the
registration of which, under Act VIII. of 1871,
was optional, Bhola Nath v. BaLdeo. Spaniit
and0/<#««,JJ...r.L.Rep.2AU.188, 1878.
S. C under Registration, SB.
86. Act VIII. of 1871, i SO— Priority
of Registered eVer Unregistered Document— Act
/. 0/1868,(6] Section Soof Act VIII. of 1B71
must be very strictly construed against any
derogation of right. It does not give priority to
a registered deed of sale, the registration of
which is compulsory, over a prior unregistered
deed of sale of the same property, the registration
D.gmzed by G00gle
( lfS8 )
DIGEST OF CASES.
( 1M4 )
feEGISTKATION-.-roBW.
of which was optional. By | 6 of the General
Clauses Act I. of 1868, a suit is to be governed
bj the Registration Law in force at the institu-
tion of the suit, and not by that which may be
in force when it conies on for hearing. Ooghra
Singh v. Ablakhi Kooer. Milter and Maclean,
JJ...I.L. B«p.4Cal. 63t); 3 Cal. Rep. 435,
1978.
37. Ad VltL of 1871, ) 73— Refusal
to Registtr— Person "claiming" under Document.]
A deed of sale, executed by the vendor alone,
which recited that the vendor had received the
purchase-money, and that the purchaser had
been put into possession, was presented for
registration by the vendor, the purchaser not
being present. The Registrar refused to regis-
ter the document, on the ground that the deed
had not been delivered, and no consideration
had passed, the vendor having stated that he had
not received the purchase -money. In refusing
to register, the Registrar believed that the deed
was of the vendor's own creation. The vendor
applied by petition to the High Court to estab-
lish his right to have the document registered-
The alleged purchaser repudiated the sale.
Held, by Pearson, Tumor, and SfianUt, JJ —
That inasmuch as the deed was executed by the
vendor alone, no claim could be founded on it
by him against any one, and he was not, there-
fore, as a person claiming under the document,
entitled to apply by petition under § 73 of Act
VIII. of 1871, to compel the registration of the
deed of sale.
Held, by Stuart, CJ.— That the mere fact
that the deed of sate was unilateral did not of
Itself prevent the vendor from being a person
claiming under it, and therefore entitled to
apply by petition under that section. But on
the merits the registration should not be ordered.
The deed having been repudiated by the alleged
purchaser, the Case came within the scope and
intention of § 35 of Act VIM. of 1R71, which
provides that if all or any of the persons by
Whom the document purports to be executed
deny its execution, the registration shall be
Held, by Oldfifld, J.— That it was the duty
of the Court to order the registration of the
deed, as it was duly executed, and the require-
ments of the law fulfilled, without entering into
the question whether or not the petitioner could
BEOIBTRATION— contd.
claim under it. * In the matter of the Petition of
Bibh Nath I. L.Bep. 1 All. 318, 1876,
M,
38. Act III. of 1877, « f 7, Evidence-
Covenant — Paten tAmbiguity— Estoppel — Cause of
Action— -Damages — Consideration— limitation.]
S. L-, by a deed of gift dated 16th February 1847,
granted and assured to his daughter, $., certain
immoveable property in Bombay. By a subse-
quent deed of gift of 15th July 1865, purporting
to have been executed in consideration of natural
love and affection, he affected to grant and con-
vey the same property, the value of which ex-
ceeded Rs. loo, to B. R,, the husband of S., his
heirs, executors, administrators, and assigns.
This deed, which was never registered, contained
covenants for title by S. L, for himself, his
heirs, executors, and administrators, to B. R.
his heirs, executors, administrators, and assigns,
to "the hereditaments and premises hereinbefore
expressed to be hereby granted and assured unto
and to the use of the said B. R., his heirs, exe-
cutors, administrators, and assigns."
S. died in the lifetime of her husband, B. R ,
who died in 1S6S, after having, in 1S67 and 1868,
executed deeds of mortgage of the premises com-
prised in the two deeds of 16th February 1S47 and
15th July 1865, to S. It., who in 1870, under the
powers of sale contained in the mortgage deeds,
sold the mortgaged property by auction in 1870
to the plaintiff. On 24th March 1871, 51 N. exe-
cuted to the plaintiff a conveyance of the pre-
mises, which Were then in the possession of the
representatives of B, R. and his wife S. The
plaintiff having failed in a suit In ejectment
against the parties in possession, who relied upon
the prior deed of gift to 5.. brought the present
suit Against the representatives of S- L., (or
damages for breach of the covenants for title
contained in the unregistered deed of gift of the
15th Jnly 1865.
Held, lit, that the provisions of Act HI. of 1877
apply to all documents tendered in evidence on
or after 1st April 1877.
Held, indly, that the deed of I jth July l86j
was one of which, under f 17 of Act III. of 1877,
the registration was compulsory; and that, assum-
ing that as In Tukaram v. Khandoji (6 Bom.
H.C. Rep.,0. CJ. \U)*n&Sangappav.Rnsap.
pa (7 Bom. H.C. Rep., A.C.J. 1), the deed was
admissible as evidence of a covpnant for the
breach of which damages were sought, yet the
D,„i„.db»Googlc
( 1S35 )
DIGEST OF CASES.
( me )
RWJISTBATION— contd.
deed must be treated 39 non-existent, or rather
as not in evidence, so far as it purported to affect
the immoveable property comprised therein, or to
afford evidence of any transaction affecting such
property; and that the only parts of the deed that
could be looked to, were the description of the
parties, the covenant for title, and the testatum.
But, so doing, and excluding that part of the
deed which purported to be the conveyance to
B. ft., the covenant for title sued on was patently
ambiguous and uncertain as to its subject-matter,
and there being nothing to connect the here-
ditaments and premises, to which the covenant
related, with those conveyed to the plaintiff by
the deed of 24th March 1871, or with those as to
which the breach of covenant was alleged not
only was no breach of covenant proved, but the
covenant sued upon was in itself ambiguous and
ydly, that a covenant for title running with
the land would seem in itself to be a transaction
affecting the land, and that the instrument con.
taining it, if coming within clause (a), (*), (c),
or (d'i, of ) 17, must be registered before it is
admissible in evidence for the purpose of proving
the existence of such covenant, unless it comes
within the exceptive clauses (e) to (7), and in
particular within clause (k),
ftkljr, that as in a suit for specific perform'
ance of an agreement for the sale of land,
the agreement may be admitted in evidence,
though unregistered, if it does not of itself
create, declare, &<:., any right, title, or in-
terest of the value of Rs. too and upwards to or
in immoveable property by the acknowledgement
of the receipt of any consideration on account
of the creation, declaration, &c, of a right, title,
or interest in land, so a document containing
covenants for title — though, no doubt, embody-
ing " a transaction affecting immoveable pro-
perty"— is admissible in evidence in a suit for
damages for breach of such covenants, provided
always that the document containing such co.
venants is conformable to the requirements of
the exceptive el. (A) of f 17 of the Act. But
when, as in the present case, the evidence of the
covenant is contained in a document itttlf pur-
porting to assign an interest in immoveable
property, and when the effect of the covenant
itself cannot be got at without looking at the
portion of the document which contains the
assignment, the document is not excepted by
cl. (A) of f 17 from the necessity of registration,
RKOISTBATI0H-««W.
and therefore that the deed of 15th July 186$
(which had been admitted in evidence by the
Court) ought not to have been received in evi-
snce, even for the purpose solely of proving
e covenant for title,
$thly, that the Court being precluded, by the
operation of Act III. of 1877, from looking at
the deed of 15th July 1865, so far as it was a
nveyance, the defendants were not estopped
jm showing that inasmuch as B. R. took
■thing under it in consequence of the prior
deed of gift to S., so the plaintiff claiming under
him had taken nothing, and was not, therefore,
B. S.'s assign of anything, nor, in the alleged
character of assign, entitled to maintain the
dthly, according to English law, damages may
; recovered for breach of covenants for title
mtained in a voluntary settlement, though the
ttlement may not be of such a character as to
be effectual without the assistance of a Court of
Equity, and which assistance the Court of Equity
will refuse to a volunteer. But this depends on
the principle of English law, that the fact of the
solemnity of sealing and delivering a document is
regarded at law as importing consideration ; and
this principle does not hold as between Hindus.
The fact, therefore, that the indenture of the
15th July 1865 was sealed and delivered was
immaterial, and the defendants were at liberty
to show that the plaintiff was suing on a
contract for which there was no consideration
other than natural love and affection, which
could not be made the ground of a suit for
damages.
Jthly, that the breach of the covenant sued
on, so far as it related to the covenantor's pre-
sent power to convey, took place on the day the
deed was executed, i.e., 15th July 1865, and
therefore the suit in respect of such breach was
barred ; that the covenant for quiet enjoyment
admitting of a continuous breach, the suit in
respect of a breach thereof would not be barred
if otherwise maintainable ; and that the cove,
nant for further assurance had never been
broken at all. Raju Balu v. Kkishnaray
Ramchandra. Green, J...LL. Bop. 2 Bom.
373, 1977.
39. Act 111. of 1877, § 50— Document
executed after 1st July 187 1, and before Act 111.
0/1877.] He'd, that the provisions of % 50 of
Act III. of 1S77 did not apply to documents
D,gltlzed by G00gle
( 1*37 )
DIGEST OF CASES.
KEQ1BTRA.TIOH -contd.
executed after the ist of July 1871, and before
Act III. of 1877 came into force.
The unregistered document in § 50 of Act 111
of 1877 means one not registered under Act
VIII. of 1871, or that Act, though executed
•iter the 1st July. But still the Act introduces
for the Erst time clauses both of f 17 and { 18,
by which introduction all registered documents
take effect henceforth as against unregistered
documenM of which under the Act registration
is optional, subject to the explanation in the
section; whereas { 50 of Act VIII. of 1871 gives
a preference to registered documents of the kind
mentioned in CI. (a) and (ft) of J 18 over the
unregistered document, subject to the explana-
tion added to the section 1 so that by Act VIII.
of 1871 it is only the duly registered documents
(though their registration is only optional}
which take effect against the unregistered do-
cuments. BholA Nath v. Baldeo. Spunkir
and Oidfeld, JJ...I. L. Rep. 2 All. 193,1878.
S. C. under Bo gist rat ion. SO.
80. Act III. 0/1877, * So— Act VIII.
0/1871, i S° — Priority."] Held, that, under
i 50 of Act III. of 1S77, a document of which the
registration was compulsory under that Act,
and which was registered thereunder, took effect
as regards the property comprised in the doci
ment, as against another document of a prii
date, relating to the same property, execut<
while Act VIII. of 1S71 was in force, and which
did not require, under that Act, to be registered,
and which was not registered under it. Gang A
Ram v. Bansi. Stuart, C.J., and Sfaniie, J. ..I.
L. Rap- 9 AIL 431, 1879.
81. Suit to Enforce Registration— Con-
tract vf Sale— Act III. of 1877, |§ 36,75,77.]
Held, where a person had agreed
another certain immoveable property and had
conveyed the same to him by a deed of sale
which under the Registration Act III. of 1877
required registration, and the vendor refused
register such deed, that it was not incumbent
the vendee to take steps under that Act
compel the vendor to register before he sought
relief in the Civil Court, but that he was
liberty, without doing so, to sue the vendor in
the Civil Court to compel registration of the
deed. RamGhuf.au *. Chotay Lal- Stuart,
C.J., and OUfrU, ]....!. L Rep. 2 All. 48,
1878.
80
EF.GISTRATIOW-«.««.
32. Priority between Deed registered
mder Act XX. of 1866, and Deed which might
have been but suit not registered under Act XIX.
«f '843.3 Act XX. of 1866 makes no provision
for priority of deeds of sale or mortgage regis-
tered under that Act over deeds of sale or
lortgage which might have been, but were not
:gistered under Act XIX. of 1843, where the
insideration for the rival deeds exceed ks.
». Khandas Dulabdash. Tarachand Amah.
iand Westropp, C. J....I. L. Rep. 1 Bom.
574, 1877.
REGISTRATION ACT XIX. OF 1848.
Sir Regit (ration. 32.
Khandas v. Tarachand... I. L.
Rep. IBe-m. 074.
REGISTRATION ACT XX, Of 1868.
§17.
See Registration. 7 to 11.
§3*-
^Registration. 31.
Ram Ghulam v. Chotai Lal. X
L. Rep. 9 All. 46.
§je-
See Registration. 29. 80.
§75-
See Registration. 31.
Ram Ghulam * Chotav Lal ..L
L. Rep. 9 All. 46.
— § 36— Absence of Vendor— Defect in Pro-
See Registration. 2,
Sak Mukhun Lall t>. Sah Koon-
dun,..L. Rep. 2 1. A. 810.
- — § 49—" Registered in accordance with the
provisions of this Act" — Absence of
Vendor — Registration in.
See Registration. 2.
Sah Mukhun Lall r. Sah Kook.
dun Lall...Ii, Rep. 8 I. A.
210.
I St — Appeal from Orders in Execution of
Decrees under.
See Appeal Civil. 7. 11. 19.
BhyrubChundero. Golap Coo.
mart I. L. Rep. 3 Oal.
817.
Ramahahdc Bank of Bengal...
I. L. Rep. 1 All. 377.
WlLAYAT-UN-NtSSA P. N°A1IB-UN.
Nissa Ibid. 083.
Digitized by GoOgle
DIGEST OF CASES.
§ S3- Simple Mortgage Bond Specially
Registered, Money Decree obtained on-
Subsequent Suit to enforce Mortgage
Lien on Mortgaged Property.
See Res Judicata. 22.
Doss Money o. Jonmenjoy Mi
LtcK...I.L.Bep.3C&1.3<
— — §§ 52 and S3— Limitation for Execution
Decree on Specially Registered Bond.
See Limitation. 79.
JaiShankar,. Tetlet 1 L.
Rep. 1 AIL 688.
S 53 — Decree on Specially Regi
Mortgage Bond.
See Bale in Execution of Decree. 0.
Akhe Ram v. Nand Kishore...
I. L. Rep. 1 All. 236.
§ 88— Defect in Procedure -Registration in
absence of Vendor.
See Registration. 2.
Sah Mukhun Lalld. Sah Koon-
dunLall..L. Rep. 21. A.
310.
REGISTRATION ACT VIII. OP 1871—
District Courts.
See Review. 8.
Reasut H ossein 0. Hadjee Ab-
DOOLiH L. Rep. 3 I, A.
§ 49— Evidence — Unregistered Document
Set Registration. 31.
Mattonoeney it. Ramharjuk , I
L. Rep. 4 Cal. S3.
§ 50— Registered and Unregistered Doco
ments of which Registration OptionaJ-
See He giat ration. 30. £6 . 26.
§ 73— Refusal to Order Registration-Re-
See Review. 8.
Reasut Hossbin 0. Hadjee Ao-
doollah...Tj. Rep. 3 I. A
§ 3— Lease— Undertaking to (
occupy.
See Lease.
-I 17-
221.
21.
Refusal to Register— Person 'claiming'™.
der Document.
See Registration. 27.
5 76-Refusat to Register— Appeal.
See Appeal— Civil. 10.
Syud Mahomet o. Hadji Ab-
dullah... I. L, Rep. 3 Cal
727.
REGISTRATION ACT in. OP 1877.
Set Appeal— Civil. IO.
Svud Mahomet v. Hadzj Ab-
dullah ..I. L. Rep. 3 0*1
737.
Property — Stand
See Assignment of Mortgage.
Ganpat Pandurang p. ADAftjr
Dadabhai I. L. Rep. 3
Bom. 312.
And see Registration, 12 to 22.
— I 17, CI. 2— Bond for Rs. 8a payable on
Demand with Interest.
See Registration. 1.
Kara:* Singh ■*. Ram Lal.. I. L.
Rep. 2 All. 96.
- 5 35— Certificate, Effect of.
See Registration. 23.
Mahomed Ewazo. Buir Lal ...L.
Rep. 4 I. A. 166. J
- 5 3 — Imraove
Set Standing Crops.
Panda h Gasj b. Jennudi.LL
Rep. 4 Cal. 669.
-S'7-
See Registration. 28.
See Registration. 81.
Ram Ghulam e. Chotay Lal...
1. L.Rep. 9 AIL 46.
RE ■ GRANT OF CONFISCATED
ESTATE, EFFECT OP.
See Confiscation in Ondn. 1.
Nawae Mulka Jahan Sahiba r.
Deputy Commissioner of
Oc»h ,...L. Hep. e LA.
68.
D.gmzed by GoOgle
DIGEST OF CASES.
HE-GRANT BT GOVERNMENT— Effect
of.
See Compromise. 2.
Pitam Singh «. Ujagar Singh...
I. L. Sep. 1 All. 661.
REGULATIONS.
5r,- Bmgal Regulation!.
Sir Bombay Regulations.
See Madras Regulations.
RE-HEARING OF APPEAL BEFORE
PRIVY COUNCIL, - HEARD EX-
PARTE.
See Practice — Privy Council. 4.
Maharajah Pertab v. Mahara-
nee Subhao Koer...L. Rep.
5 I. A. 171 ; S. C. I. L.
Rep. 4 Cftl. 184,
RE-HEAKING OF EX-PARTE DE-
CREE GRANTED AFTER EXPI-
RATION OF TIME LIMITED BT
LAW.
See Civil Procedure Code, Act VHI.
of 1859, §119.3.
RunglallMisseru. TokhcmMis.
3ER....I. L. Rep. 2 Cftl. 114.
RELATIVE POSITION OF MAGIS-
TRATE OF THE FIRST CLASS
TO DISTRICT MAGISTRATE
AND SESSIONS COURT.
See Sanction to Prosecute. 6. 0.
Impx. v. Fadamabha Pai.,.1. L.
Rep. 2 Bom. 384.
Gun Dayal ...I. L. Rep. 2 All.
SOS.
RELAT1TE POSITION OF SUBOR-
DINATE JUDGE, DISTRICT
JUDGE, AND HIGH COURT— For
purpose of Sanction to Prosecute— Act
X. of 187a, f 468.
Stc Sanction to Prosecute. 4.
Impx, v. Lakshhan.-.I. L. Rep,
2 Bom. 481.
RELEASE— Composition Deed — Misrepre-
sentation—Contract Act IX. of 1872,
ff 18, 19 — Cancelling Deed,
See Cancellation of Signature.
The Oriental Bank Corpora-
tion v. John Fleming ..I. L.
Rep. 3 Bom. 342.
To One of Several Partners.
See Contract. 10.
KlRTEE ChUNDERjf. STRUTHSSS...
I. L. Rep. 4 CiU. 338.
RELIEF GRANTED BT DECREE—
Specific Statement of.
See Decree. 1.
Kangal Chandr v-i. Kanye Lall.
I. L. Rep. 4 Cal. 69.
RELIGIOUSBROTHERHOODATTACH-
ED TO HINDU TEMPLE, CON-
STITUTION AND RULES OF.
See Mohunt. 1.
Rajah Mitttv Ramalinoa Setu-
pati v. Perianayagum Pillai.
L. Rep. 1 L A. 209.
RELIGIOUS ENDOWMENT— Suit for
See Suit for Management of a Re-
ligious Endowment.
PamchcowbieMullb. Chuhroo-
lall ..I. L. Rep. 3 Cal. 683.
RELIGIOUS SEBVICESPERFORMED—
Suit for Dues for.
See Dues for Religious Services
performed.
Tiru Kkishnama v. Krishna
Swami.L Rep 61. A. 11.0;
I. L. Rep. 2 Mad. 62.
RELINQUISHING OR OMITTING TO
SUE FOR PORTION OF CLAIM.
SiwCivilProcedureCode, Act VIII.
of 1859. §7. 2.
Lachman Singh if. Sanwal Singh.
I. L. Rep. 1 All. 643.
Simultaneous Suits.
S«CivilProcedure Code, Act VIII.
of 1869, § 7.4.6.
Kaleshar Prasad ;■. Jaoas Nath,
L L. J?.ep. 1 AH. 650.
Ram Tabxunv. II ■sseinBuksh...
I. L Rep. 3 Cal. 785.
RELINQUISHMENT OF SHARE BY
SON.
See Hindu Law— Relinquishment
of Share by Son.
Balkrlshna v- Savitribai I. L.
Rep. 3 Bom, 61.
D.gmzed by G00gle
DIGEST OP CASES.
Set Appeal to the Privy Council. 0.
Tetley v. Jai ShANKAR I. L.
Rep. 1 All. 736.
— By District Magistrate of Case triable by
Magistrate, after Discharge by Subordi-
nale Magistrate,
Set Criminal Procedure Code, Act
X. of 1872, § 285. 1.
Dijahub Dutt I. L. Rep. 4
Cal. 847.
And see the Cases under Revival Of
Prosecution.
Objections after Time fixed In Order of
Remand
See Civil Procedure Code, Act
VIII. of I860, § 354.
Ratan Singh v. Wazih L L-
Rep. 1 AIL 160.
— — Plea of Limitation cannot bo taken for
First Time on — Special Appeal from
Decree on Remand on Special Appeal.
See Limitation. 3.
Moku «, Gopal I. L. Rep. S
Bom. ISO.
REMARRIAGE OF WIDOW.
See Hindu Law— Remarriage of
Widow.
MUKUOAYI V- VlRAMAKALI...!. L.
Rep. I Mad. 226.
REMISSION OF AWARD-Not Illegal on
its face.
See Arbitration. 8.
Nanak Ciiami b. Ram Narravan,
I. L. Rep. 2 All. 181.
REMISSION OF REVENUE FOR TERM
OF YEARS DOES NOT ALTER
STATURE OF REVENUE-PAY-
ING LANDS.
See Bale in Execution of Decree. 8.
Showeks o. Seth Gobind Dass...
I. L. Rep. 1 All. 400.
REMOTENESS.
See HiDdu Law-WilL 4. 7.
V 0. DoORGAMONEY.
:. L. Rep. 4 Cal. 466.
SrjUr»
i.Ciiuf
I. L. Rep. 2 Cal. 9Q2.
REMOVAL OF KARANAVAN FROM
OFFICE.
See Malabar Law. 9.
Eravanni ■. ITTAMJ...L L. Rep.
1 Mad. 163.
RENT — Arrangement for Separate Payment of.
SnCo-Bharereef Land. L
GuNl Mahomed v. Moran...I. L.
Rep. 4 Cal. 96.
— — Arrears of — Bhaoli — Ejectment.
See Bang. Act VIII. of 1888, §§ SI
and 52.
KishenGopau lMawak v. Barnes.
I. L. Rep. 2 Cal. 374.
Arrears of Bhaoli or Grain — Suit for Mo-
ney Equivalent of.
Set ActXVin. of 1873, §93.1. *
Tajuddin Khan b. Ram Parshah
Bkacat.-.L L. Rep, 1 AIL
217.
Arrears of Enhanced — Interest on.
See Interest. 8.
Kkajah Ashanoou-ah *. Kajei
AFTA800DDEEN...I. L. Rep,
4 Cal. 684.
Bhao!i — Arrears— Suit for Money Equiva-
lent.
See Act Xvm. of 1873, § 93. 1.
Tajuddin Khan v. Ram Parshad
Bhagat.,,1. L. Rep. 1 AIL
217.
Bfiaoli — Ejectment for Arrears of.
See Bong, Act VIII. of 1869, §| 21
and 62.
Kish en Gopa v l M awar o.Barnes.
I. L. Rep. 2 Cal. 874.
Bhaoli— Enhancement.
See Enhancement of Rent. 4.
Hanuman Parshado. Kavlessar
Pandav...I. L. Rep. 1 AIL
801.
Of Dependent Talook — Enhancement.
See Enhancement of Rent. 2,
Hlrronath Rov v. Gobind C.
Dutt...L. Rep.2LA.198.
Enhancement of GhatwaFs.
Set Ghatwali Tenure.
Leelanund Singh Bahadur »
Thakoor MunrunjunSingh.
I. L. Rep. 8 CaL 251.
D,gltlzed by G00gle
( IMS )
DIGEST OF CASES.
BENT— cantd.
Enhancement of — by Ijaradar,
See Enhancement of Bent. 7.
DOORGA PhaSIIAL) ir. Ji
I. Ij. Rep. 3 CaL 474.
— i ■ Enhancement of — by Inamdar — Right of.
Set Enhancement of Kent. 6.
PURSOTAM KeSHAVDASO- KaLYAN
Rayji...I. L. Bep. 3 Bom,
348.
Set Inamdar.
Prataprav v. Bayaji...I. Ii. Bep.
3 Bom. 141.
Set Miras. 9.
VlSHNUBHAT V. BABAJI...I. L.
Bep. 3 Bom, 34S, n.
— Enhancement of— Notice of — by One of
Several Joint Landlords.
See Co -Sharers of Land. 1. 8.
Guru Mahomed v. Moran...I. L.
Bep. 4 Cal. 83.
Balaji v. Gopal...L L. Bep.
3 Bom. 23>
— Enhancement of— Notice of — When Un-
necessary.
See Beng. Act VIII. of 1868, § 14.3.
NlSTARNI V. BoNOMALl.,.1. L.
Bep. 4 Cal. 841.
— Enhancement of— by Purchaser at Revenue
Sale.
See Enhancement of Bent 1.
Puriiakand 9. ROOKINEE-.X L.
Kep.lCul.793.
See Beng. Beg. XLV. of 1793, § 5.
Mohiny M. Rov tr. Ichamoyse,
L L. Kep. 4 Cal. 612.
Enhancement of— of Tenure held by Joint
Hindu Family— Service of Notice.
Set Beng. Act Till, of 1868, § 14. 1.
NOBODEEP B. SONARAH...I. L.
Bep. 4 Cal. 683.
— Fixed— Right of Afirasdar to hold on,
SetViiM. 1.8.
Babaji c. Narayan . I. L. Bep.
3 Bom. 340.
VlSHNUBHAT '«. BaBAJI Ibid.
840, n.
Sit Enhancement of Bent. 6.
Paksotah KmhavOas f. Kalyan
Rayji I. L. Bep. 3Bom.
BENT— ccntd.
~ Grain — Arrears — Suit for Money Equiva-
lent.
See Act XVIII. of 1873, § 93. 1.
Tajuddjn Khan v. Ram Parshad
Bhagat.-X L. Rop. 1 All.
917.
- Limitation to Suit for Arrears of.
See Bengal Act VIII. of 1868, § 81.
Rah Sunkek Senapatty v. Bir
Chunder Manikta I. L.
Bep. 4 Cal. 714.
See Limitation. 4. 8. 10. IS.
Watson & Co. v. Dhonendra C
Mookerjee L L. Rep. 3
Cal. 6.
BrojendroC. Roy v. Rakhal C.
Roy Ibid. 791.
Hurro P. Roy «. Gopal-Dasb
Diitt Ibid. 817.
Purran Chunder v. Mutty Lall.
I. L. Bep. 4 Cal. SO.
- Non-Payment of — by Occupancy Ryot for
more than Twelve Years— Admission of
Liability by Tenant — No Title.
See Limitation. 31.
Poresh Narianv.Kassf: Chunder.
I. L. Bep. 4 Cal. 661.
- Non-Payment of— not Proof of Cessation
of Relation of Landlord and Tenant once
shown to have existed.
See Landlord and Tenant. B. 9.
Rungo Lam. jr. Abdool Guffook.
I. L. Bep. 4 Cal. 314.
Prem Sukh Das e. Bhupia-.X L.
Bep. 3 AIL 617.
- Non-Payment of — on account of Submerg-
ed Lands — Extinguishment of Right of
Occupancy on their Re-formation.
See Extinguishment of Bight of
Occupancy,
HSMNATH DuTTtJ, AsKGTJR SlNDAR
I. L. Bep. 4 Cal. 884.
- Separate Share of — Suit by One Co-
Sharer— Colluding Co-Sharers— Parties.
See Co-Bharera of Land. 8.
Jadu Dais. Sutherland. ..I. L.
Bep. 4 CaL 656.
DiQitized by Google
( 1M7 )
DIGEST OF CASES.
( 1>« )
KETST-contd.
Separate Suits for.
See Co-Sharers of Land. 1. 2. 3.
GUKt Mahomed v. Moran ..I. L.
Rep. 4 Cal. 96.
Ahamudins. Grish Chunder...
Ibid. 360.
Jadu Das*. Sutherland... I. L.
Bep. 4 Cal. 609.
— — Suit for — under Rs. too — Appeal.
Set Special Appeal. 4.
LUNGESSUR KOUER V. SOOKHA
OjHA...l.L.Bep.3Cal.lSl.
RENT DUE li Y FORMER TENANT—
Liability of Tenure.
See Landlord and Tenant. 6.
Rash Behary v. Pearv Mokun...
I. L. Bep. 4 CaL 346.
RENT-FREE LANDS- -RiBht to levy As-
See Resumption. 2.
Keval d.Talukdari Settlement
Officer...!. L. Bep. 1 Bom.
086.
See Qaatwttli Tenure.
LEELANUND SlNGH Bahadoor c.
Thakoor Munrunjun Sinoh.
I. L. Bep. 3 Cal. 251.
BENT PAID JOINTLY TO CO-SHAR-
ERS OF LAND- Inability of One
Co-Sharer to sue for his Share separately.
See Co-Sbeiera of Land. 3.
Ahamudih t, Grish Chunder..
I. L. Rep. 4 Ca!. 350.
BENT-STJIT— Previous Purchase by Mortga-
gee of Part of Tenure— Ejectment— Right of
Purchaser to question by Suit the Validity of Decree
for Ejectment, if not a Party to the Suit.'] In a
suit for arrears of rent by a mokuraridar against
his dur-moiuraridar a decree was passed eject-
ing the latter, and, as a consequence, the tenure
of the dar-mokuraridar was cancelled.
Held, that a mortgagee from the dur.moiurari-
dar who had, previously to the rent-suit, obtained
a decree on his mortgage, and himself purchased
at the auction sale, and who had not been made
a party to Ihe rent-suit, was entitled to question
by suit the validity of the decree obtained in the
rent-suit ordering the ejectment of the dur-
moiuraridar. Madhoo Proshaud Singh «.
PursHAN Rah.. Ainslie and Maclean, JJ L
. L. Bep. 4 CaL B20, 1878.
RENUNCIATION OF PROBATE BY
EXECUTOR— PROOF OF EXECU-
TION OF WILL IN COURT.
See Hindu Law— WilL 3.
SURBO MUNGOLA v. MoHENDRO
Nath I. L. Bep. 4 CaL
608.
RE-OFENING FORECLOSURE. -
See Mortgage. 10.
Kauprosonno p. Kamini Sooh-
duri...I. L. Rep. 4 CaL 476.
REPEAL, EFFECT OF— Pending Proceed-
ings.
See Civil Procedure Code, Act X.
of 1877, |342.
Rattansi Kallianji.,.1. L. Rep.
3 Bom. 148.
See Construction of Statute. 6.
Sitaram o. Kkanderav... I. If.
Bep. 1 Bom. 286.
Pending Proceedings in Executionof Decree
See Appeal— Civil. 27.
Thakur Prasad b. Aksan Ali...
I. L. Bep. 1 All. 668.
Of Act XIV. of 1859— Revival of Right to
Sue.
Set Limitation. 15.
Nocoor Chunder o. Kallv Coo-
mar. ..I. L. Bep. 1 CaL 338.
REPORT UNDEB § 181, ACT VTJI. OF
1858— OBJECTIONS, TO.
See Tract ice — Civil. 3.
SethsGujmull and Others b.
Musst. Chahee Kowar...
L. Rep. 2 I. A. 34.
REPORTS OF COLLECTORS— Madras Reg.
VII. of 1817.] Opinions on the private rights
of parties, expressed in reports of Collectors
under Madras Reg. XVII. of 1817, are not to be
regarded as having judicial authority. But
being the reports of public officers made in the
e of duty, and under statutable authority,
arc entitled to great consideration so far as
they supply information of official proceedings
nd historical facts, and also in so far as they
.re relevant to explain the acts and conduct of
the parties in relation to them, and the pro-
ngs of the Government founded upon
them. Rajah Muttu Ram a lino a Setupati b.
Phrianavagum Pillat... L. Hep. 1 I. A 209.
S. C. under Mohunt.
D,gltlzed by G00gle
( 1249 )
DIGEST OF CASES.
REPORT OF MAGISTRATE-- Criminal
Procedure Code, Act X. of 187a, f f 133, 135 — In-
quiry info Cause of Death— Judicial Proceed
ings.-] The Magistrate of a Division having
held an inquiry, under § 135 of the Crim
Procedure Code, Act X. of 1873, into the a
of the death of a certain person found dead
der suspicious circumstances, without making
any specific charge against any partit
son, drew up a report, which he sent lo the
Magistrate of the District, embodying the result
of his inquiry, and the conclusion at which he
had arrived, vie., that the deceased had pur-
posely committed suicide under such circum-
stances as might raise suspicions against certain
persons of having caused his death. Subse*
quently some proceedings which arose out of
that inquiry were taken against one of the
petitioners, and those proceedings resulted in
acquittal. On an application by the petitiot
and certain other relations of the deceased
the High Court to send for and quash the
Held, that as, under ( 135 of the Criminal
Procedure Code (Act X. of 1872), the Magis
trate was not hound to make a report or com'
to a finding, the report which he did send to tin
District Magistrate was not part of a judicial
proceeding, and the High Court had no power
to send for it.
Qu&re, whether the petitioners had any locus
standi at all, the only one of them who had evei
been put upon his trial having been acquitted
Troylokhanath Biswas v. Ram Chuhn Bis-
was...!. L. Rep. SCal. 742; 3 Cat Rep. 09,
1878.
See Person taking Possession of
the Estate of a Deceased
Hindu.
pROSONNO ChuNDEK tr. KRISTO
Chytunno.-I. L. Rep. 4
Cal. 342.
REPRESENTATIVE OF DECEASED
JUDGMENT -CREDITOR— RIGHT
OF, TO CONTINUE EXECUTION
PROCEEDINGS COMMENCED BY
HIM.
Sic Limitation. 95.
GULABDAS V. LAKSHMAM NaRHAR.
I. L. Rep. 3 Bom. 231.
REPRESENTATIVE VATANDARS.
See Declaratory Decree. 17. 18. 19.
20.
REPUDIATION OF WEFE BY AMBIGU-
OUS EXPRESSION.
Sir Mahomedan Law— Divorce. 1.
HaHID Ali jr. IMTIAZAN...I, L.
Rep. 2 All. 71.
See Insolvency. 3. 4. 5.
RES JUDICATA.
See Hindu Law— Gift 3.
Rudr Narain Singh o. Rup
Kuar...I. L Rep. 1 All.
734.
Area, Question of.
See Res Judicata. 12. 13.
Confirmation by Board of Revenue of Pe.
nalty Imposed by Collector — Suit
against Collector.
See Res Judicata. 30.
- Defendant
Defend on all grounds
See Res Judicata. 4. 23, 24.
- Determination of Issue not absolutely
Determination of Title by Revenue Court
See Res Judicata. 14. 32. 33.
Determination of Title in Suit Cognizable
by Small Cause Court.
See Res Judicata. 8.
Dismissal of Suit for Want of Jurisdiction.
See Res Judicata. 2 7.
- Ejectment Suit dismissed for want of
jurisdiction — Subsequent Suit for da-
See Res Judicata. 2.
- Ejectment Suit— Subsequent Suit for Rent.
See Res Judicata. 17.
- Execution Procedings— Question of Legi-
timacy of Son of Deceased Decree-holder
decided in— Act VIII. of 1859, { zoS—
Act XXIII. of 1861, § 11.
See Execution of Decree. 9.
Abeedoomssa v. Ameeroonissa.
L. Rep. 4 I. A. 66 ; I. L.
Rep. 2. Cat 327.
mortized by Google
DIGEST OP CASES.
BBS JUDICATA— contd.
- First Suil Again!
pals— Subsequent Suit a:
See Res Judicata. 3.
Defendants as Princi
Judgment, without Satisfaction, against
One of Several Joint Contractors.
See Joint Contractors.
Hemendko Coomar v. Rajen-
DROLALL...I. L. Bep. 3 CaL
SS3.
— Mamlatdar's Order under Bombay Act V.
of 1864.
See Uombay Act V. of 1864.
Basapa v. Lakshmapa...I. L.
Bep. 1 Bom. 624.
Rent Suit — Subsequent Suit for Abate-
See Bes Judicata. 10. 11.
Reversioner when Bound by Decree against
Hindu Widow.
See Bes Judicata. 16. 20.
■ Substance, not Form of Suit, to be Re-
See Bes Judicata. 6. 9.
— " Suit," what is.
See Bes Judicata. SO.
Suit to set aside Decree founded on Pro-
per Issues raised and determined.
Sre Dewutter. I.
Prosunno Kumart v. Golap
Chand...I. L. Bep. 2 I. A
145.
1. Act VIII. of 1859, § a - First Suit
against Defendants as Principals — Second
Suit as Agents.'] A previous suit, in which the
plaintiff elected to sue the defendants as ;
i JUDICATA-™.**.
cipais, bars a second suit on the &
1 which the same defendants are charged a*
responsible agents under a trade usage. Devra*
Krishna v. Halambhai. West and If. Mar-
ridat, JJ 1. 1. Bep. 1 Bom. 87, 1878.
8. Ejectment Suit dismissed for Want
of Jurisdiction — Subsequent Suit for Damages-']
The dismissal in 1861, on the ground of want of
jurisdiction, of a suit to eject the defendant
fishing-ground claimed by the plaintiff,
and for damages for trespass thereon, does not
bar a subsequent suit by the plaintiff for dama-
ges sustained by the plaintiff byreason of thede.
fendant having in 1872 wrongfully disturbed the
plaintiff's enjoyment of bis right to fish in the
1, by placing nets too close to the plaintiff's.
Baban Machava v. Naou Shravucha. West-
h C.J., and N. Harridas, J I. L. Bep. 9
Bom. 10, 1876.
3. Execution Proceedings.'] On an ap-
plication being made to the Deputy Commis-
of Delhi for the execution of a decree
passed before Act XIV. of 1859 came into force
n the Punjab, that officer, on the 10th Decem-
ber i859, recorded the following order— "The
of a dale prior to the introduction of
Act XIV. of 1359. It should be executed ad-
ding to the civil law of the Punjaub ; and as,
xirding to the said law, the period of one
ir was fixed for its execution, and in case
that period expires the rule is that the decree
Id be executed by obtaining the sanction of
lommissioner; and as on the report sent for
obtaining sanction the Commissioner did not
any order either giving sanction or any
order, and as it is not within the power of
this Court to execute such a decree, it is ordered
that the petition be sent to the Record-room."
No appeal was preferred from this order, bnt
>n May 1871 the plaintiff made another applica-
Held, that the order of the 10th December
1869 was not an adjudication within the rule of
res judicata, or within § 2 of Act VIII. of 1859.
Delhi and London Bank ».
Orchard. ..L. Bep, 4 I. A.
137; L L. Bep. 3 Cat. 47.
S. C. under Construction of Statute. 1.
And Limitation. 36.
4. — Declaratory Decree — Impartible
Property.] In a suit in which A., a Hindu
widow, was plaintiff, and B. was one of the de-
Di,iii,.db»Goo<^le
( 1!E
)
DIGEST OF CASES.
< UM )
BEB JUDICATA-™!**
fen dan ts, the plaintiff sought and obtained a
decree for certain lands to which she claimed to
be entitled as mother and heiress of her deceas-
ed son.
B. subsequently brought a suit against A ,
alleging that he, and not A., had become entitled
to the lands on the death of A.'s son, under a
tulachar, or family custom, which excluded
female heirs, and gave him a preferential right
among male heirs, and thereby sough: to re-
cover from her possession of the same lands,
and alternatively to obtain a declaration that he
was as such heir, if then living, entitled to
possession of them on her death, and that a
deed executed by her alienating a portion of
them was valid only for her lifetime.
Held, that if B. did not resist the claim in the
former suit upon the ground of family custom, he
-was not entitled in the present suit to upset the
former decision, because he failed to set up a
custom which he ought to have relied upon at
the time. But it appeared from the record of the
present case that the family custom was brought
before the Court in the former suit; and the
decision in the former suit, that the then plain-
tiff, A., as mother, was the heiress of her son,
«.id, as such heiress, was entitled to possession,
was conclusive agaiost the present plaintiff, B.,
who was a party to that suit, that she was so
entitled, and that she having taken possession
under that decree, the plaintiff was barred by
the adjudication from recovering possession from
her on the ground that she was not the heiress,
and that he was entitled to succeed to the pro-
perty on the death of her son; but the plaintiff
was not barred by the adjudication in the former
suit from setting up the family custom with the
object of showing that on A.'s death he would be
entitled to succeed her, if living, and was by
reason of such heirship entitled to obtain a decla-
ratory decree as (o the deed of alienation.
Their Lordships, however, declined to remand
the case for an adjudication thereupon.
A declaratory decree was matter of discretion,
and while the necessary investigation would
cause great delay and expense, the claim of the
plaintiff was contingent on his surviving the
defendant, and the decree would not bind other
members of the family, not parties to the suit,
with possibly preferential titles. Thau Poobga
Penshad Singh v. Tbkajtni Doorqa Kon-
warj L. Bop, B I. A. HOjI. X. Rep. 4
C»l. 19U , 3 Cal. Bep. 31, 1878.
SI
SES JUDICATA— ronfrf.
5. Suit between the same Partita— Act
Pill, of 1859, , 2.] The plaintiff sued to recover
certain houses and grounds as belonging to his
iemindary, setting forth that the premises in
question had been occupied by his paternal
grandmother, on whose death the defendants
had taken wrongful possession. The defendants
claimed to be legally entitled to the premises in
question, and contended that the plaintiff's suit
was barred, under ) 2. Act VII. of 1859, by
reason that the cause of action had already been
heard and determined in a previous suit brought
by the plaintiff's father in 1862 Hgainst the
plaintiff's grandmother, and the defendant's
father and others, to establish his right to the
The defendants also pleaded limitation.
It appeared that in the former suit the relief
sought by the plaintiff in respect of the property
in dispute in the present suit, was to restrain his
grandmother from acts of waste ;but there was no
distinct allegation of fact in the plaint or written
statement regarding it, nor anything to connect
the present defendant's father therewith, or to
disclose any claim thereto by the plaintiff's
father, nor was there any charge that she had
assigned or intended to assign it to the co-
defendants, nor any allegation to show that
the co-defendants had any interest whatever in
No issue was raised, nor any evidence offered,
00 either side, in respect of that property, either
to show that the plaintiff was entitled to an
injunction, or for any other purpose, and the
plaintiffs suit was dismissed.
field, reversing the decisions of the lowet
Courts, that as regards that portion of the
property to which the present suit related, the
widow was, in the former suit substantially the
only defendant, and her co-defendants were no
parties to the suit, and therefore that under
the circumstances the decision in the former
suit was not a decision in a suit between the
same parties, or parties under whom they
claimed, establishing the right of the defendant*
in the former suit, to the property in question
in the present suit, and that the cause of action
in the present suit was not determined in tho
Held, also, that the defendant's plea of limita-
tion could not be determined without a finding
as to whether the plaintiffs grandmother, who
died within the period of limitation, had held
D,gltlzed by G00gle
DIGEST OF CASES.
( "W )
RES JUDICATA— ««*<
the premises with the plai
in her own right or
I perm
a trespasser. The Ze-
HIND AH OF PlTTAPURAMf. THE PkOPRIETOKS
OPIHEjItlTUOF KoLANHA I. L. R jp. 2
Hod. 28, 1878 ; L. Rep. 5 I. A. 306 ; 3
Cal. Rep. L6S.
6. Identity of flight- Facts infring-
ing it integrally connected tilth those alleged
in Furmer Suit- Substance of Suit.] The plain-
tiff purchase d certain lands from the heirs of a
Mussulman proprietor, and the defendant pur-
chased other lands of the same estate from
their co-heirs. The plaintiff in 1S64 sued the
defendant to have the sale to the latter set
aside ; but, as he admitted that he himself was
in actual possession of all that he had purchased,
his suit was icjected.
The plaintiff then, in 1869, sued the defend-
ant, alleging that he and the defendant being
vendees from different co-heirs, their respective
lands had not been demarcated according to the
shares of their respective vendors, and he asked
that such a demarcation should be made. This
suit was treated substantially as an ejectment
suit, and rejected, on the ground of his admis-
sion in the first suit. In appeal to the High
Court, the plaintiff alleged that since the arlmis.
sion made by him in the former suit, some of
his tenants had attorned to the defendant, and
thus deprived him of possession of part of his
land] but this not having been stated in the
plaint, the Court refused to allow the question
lo be raised, and confirmed the decision appeal-
Th-
1 present suit was founded on the alleged
ment of his tenants in 1S6S to the defend-
The plaintiff contended that though the cause
of action was in existence when the second suit
was brought in 1869. yet that it had not been
adjudicated upon, and that in appeal he had
been prevented from arguing on it.
Held, that the plaintiff was estopped ; the
cause of action in the third suit was the same
as that in the second. The second suit, (look- ,
ing to its substance rather than its form,) rested
on nn assertion that the defendant had more '
and the plaintiff less, land than was the just 1
property of each, and sought a rectification of
the alleged injustice. In the present suit also!
the plaintiff alleged that the defendant possess, j
ed too much, and he himself too little. That this '
RES JUDICATA— could.
excess and defect were now ascribed to particu-
lar acts as a means, did not constitute a really
different case or cause of action. There was
illegatioo of a wholly different right, or
group of fact* infringing it, in this suit from
what there was in the former. The facts were
connected in an essential jural unity, so that
had the plaintiff's whole case (been brought
forward before, it would not have involved
separate investigations ; and the p.aintiff could
not, therefore, now sue on grounds merely
subsidiary to his main ground, on which he
sought to re -open the litigation. Having
striven to establish his title to land by one means
and failed, he could not now establish that title
by other means which were equally nt bis
command when the former suit was ttied, and
so connected with the grounds on which he in
that case relied (hat they ought to have beeu
submitted for consideration together.
In deciding whether a question is res judicata,
the substance and not the form of the former suit
will be regaraed. If the cause of action in the.
second suit rests on facts which are integrally
connected with those upon which a right and
an infringement of the right have been already
once asserted as a ground for the Court's inter*
ference, the second suit will be barred. Haji
HaSAM Ibrahim •>. MAHCHARAy KaliAndas.
West and Finkey, J J ... I. L. Rep. 3 Bom. 137,
1878.
7. AtlX. ttfitjj, i C3O The plaintiff
in 1876 brought a suit against the defendant in
respect of the same subject-matter, and founded
on the same cause of action, as in the present
suit. The Collector's certificate under J 6 of
the Pensions Act (XX1I1. of 1871) not having
been obtained, the Court rejected the plaintiffs
claim in the former suit for want of jurisdiction,
but before doing so inquired into and decided,
and recorded an opinion on all the issues of fact
arising in the case ; —
Held, that the Court having found in the for-
mer suit that its cognizance of the case was
barred by the absence of the Collector's certifi-
cate, the opinion expressed by it on the merits
of the controversy between the parties could not
be regarded as in any way res judicata between
them. When a suit has failed through a formal
defect, and the merits have not been so pro
nounced on as to constitute a legal relation rest.
ing on the act of the Court, another suit is not
D,gltlzed by G00gle
( 1S57 )
DIGEST OF CASES.
SES JVIilOATA-contd.
barred. Putali Mhhbti b. Tulja. West and
Pinhey,}} I. L Hep.3 Bora. 223, 1879.
S. C. under Limitation. 91.
8. Suit far Rent of tkt Nature Cognii-
eblc by a Smilt Cause Court— Determination of
Title."] The incidental determination of an issue
of title in a suit for rent of the nature cognizable
in a Small Cause Court does not finally estop
the parties to that suit from raising the same
issue in a suit brought to try the title. Inayat
Khan v. Rahmat Bibi. Turner and SP'nkie,
JJ X. L. Rep. 3 All. 97, 1879.
9. Act VIII. of 1*59. ( ».] Where a
material issue has been tried and determined
between the same parties in a proper suit, and
in a competent Court, as to the status of one of
them in relation to the other, it cannot be again
tried in another suit between them,
mother to set aside the adoption, the defence
was that in a suit by such son to set aside
palnet leases granted by his adoptive mother,
on the ground that she had thereby exceeded
her power as the owner of a widow's estate, the
plaintiff had intervened, claiming as reversionary
heir, and an issue as to the validity of the adop-
tion had been thereafter decided against him :—
Held, that the present suit was therefore
The expression " cause of action," in $
Act VIII. of 1859, cannot be taken in its literal
and most restricted sense: it is to be construed
rather with reference to the substance than to the
form of the action. Soorjomonee Dayee o. Sud.
danand Mohapatter (13 Beng. L. Rep. 304)
approved. Krishna Bshari Roy o. Broji
waki Chdwdkvnf.f. L. Rep. SI A. 283,
1875 ; I. L. Rep. 1 Oal. 114,
10. Act VIII, of 1S59, § *— Suit fo>
Rent—Subsequent Suit for Abatement of Rent.}
The plaintiff obtained a fatni lease of
villages from the defendant in 1861 at an annual
rent, and in 1865 was evicted from portion of the
property ; she took no steps to obtain an abate-
ment ; but as she did not pay any rent for the
year 1871, the defendant sued her for the rent
due in that year. In that suit the plaintiff set
up as a defence that she was entitled to an abate-
ment of Rs. (55 from her rent, Rs. 155 represent-
ing the annual value of th-- property from which
she had been evicted. In that suit the Judge
held that the amount of abatement to which the
BIB JUDICATA- contd.
plaintiff was entitled should be Rs. 41, and not
Rs. 155. No appeal was preferred against that
ision. The plaintiff now sued for a per.
lent abatement of her rent, claiming the pre-
measure of abatement, via., Rs. 155. which
had claimed in the suit brought against her
by the defendant i —
Held, that the matter was res judicata by the
vision in the former suit, and that the question
of abatement of rent had been thereby determined
the parties not only for one year, but
for all future years. Nobo Dooroa Dossee
Foyi Baksh Chowdkry. Garth, C.J., and
fre*,J X. !•. Sep. lOftl. 2<W, 1875.
Note.— In giving Judgment in the above case,
Garth, C.J., said {p. 805):—
There is no doubt as to what the law is upon
the subject of estoppel. The difficulty is in
.pplying the law lo such a case as the present.
Each year's rent is in itself a separate and entire
of action, and if a suit be brought for a
Tent, a judgment obtained in that suit,
whatever the defence might be, would seem only
> extend to the subject-matter of the suit, and
avc the landlord at liberty to bring another
uit for the next year's rent, and the tenant at
iberty to set up to that suit any defence she
thought proper.
But it is said, on the other hand, that ir, the
former suit, the entire question of what ought
be the permanent abatement of rent during
the whole period oi the lease, wu substantially
d necessarily tried and deiennined, and that
ither the plaintiff nor defendant are at liberty
to reopen that question. The principle on which
the abatement was made, the value of the land,
the measurements, and other circumstances
which form the materials on which the Judge
would estimate the amount of the abatement,
would be applicable to one year as welt as 10
another. Even a^urning that the judgments in
the former suit were not binding between the
parties as actual estoppel, it would afford such
cogent evidence, that the Judge in this suit, in
the absence of entirely fresh m* terials, would be
perfectly right in acting upon it."
On the authority, however, of hlohima Chunder
Mooaomdar v. Atrada Dassia (15 Beng. L. Rep.
851) and Rokhal Doss Singh v. Srcemuttee Heera
Motet Dossee (23 W. Rep. 182), the case was
decided as above stated.
11, Pent Suit— Ex-parte Decree— Time.
barred Decree, Evidence of.'. A decree obtained
Di,iii,.db»Goo<^le
DIGEST OF CASES.
{ 1M0 )
RES JUDICATA -con/rf.
rx-pa-te is, in the absence of fraud or irregula-
rity, for purposes of evidence as good as any
other decree, and as binding, for all purposes, as
a decree obtained in a contested suit. Such a
decree is admissible in evidence, though the
period for executing it has expired.
Where the plaintiff sued the defendant for a
year's rent at the same rate which had been
decreed to him fur the previous year in a suit
which he bad brought against'the same defen-
dant for rent of the same property*, and relied
on the former decree, which had been obtained
tx-partt, as evidence of the amount of
to him by the defendant :—
Held, following Nobo Doorga Dosser v. Fay*
Batsh Chowdhry (I. L. Rep. 1 Cal. aoa ; S. C.
34 W. Rep. 403,, that in the absence of any
evidence of any fresh circumstances having
arisen since the former decree was made, which
would justify on the one band an abatement, 01
on the other hand an enhancement, of the rem
decreed in the former suit, that decree deter-
mined the amount of rent due from (he defen-
dant to the plaintiff. Birchuhder Manickva
p. Hurrish Chunder Dass. Garth, C.J., and
Birth,) ..I. L. Rep, 3 Cal. 383; I Cal. Bop.
68S, 1879.
19. Suit for Enhancement of Rent-
Area."] In a previous suit the present plaintiff
had sued the present defendant for the amount
originally fixed as rent in a lease which con-
tained a condition that if, on measurement oE
the land leased, it should turn out that the land
was more or less than the estimated area named
in the lease, the rent should be increased or
decieased in proportion. In that suit the defen-
dant claimed to have 'he rent'reduced in accord-
ance with the terms of the lease, and thereupon
quantify of land held by the defendant was in
excess of that named in the lease ; that suit
was determined in the plaintiffs favour for the
rent claimed. In a subsequent suit brought for
enhancement of rent on the ground that the
land leased contained more than the quantity
estimated in the lease ; —
Held, that the measurement adopted by the
Court in the former suit was not binding on the
defendant in the present suit, as regards the
amount of excess. The judgment in the former
case was only conclusive between the parties on
the question whether the land demised was or '
RES JUDICATA -rfrnfrf
wa- not less than, or equal to, the estimated
quantity. Nobo Doorga Dossee v. Foya Satti
Ckovdhry (I. L. Rep. I Cal. 203 ; S. C. 24 W.
Rep- 403) distinguished, on the ground that io
that case the point decided in the first suit was
necessary to the due determination of the issues
in both suits. Ekrah Mundul f Holodhur
Pal. Garth, C.J., and Birch, J...1. L. Rep. 3
Cal. 371, 1874
S. C. under Enhancement of Bent. 8.
18. Suit for Rent— Question of Area]
A. sued B. for arrears of rent. B. admitted the
sum claimed, but contended that the rent was
due for a larger area of land than that specified
in the plaint. An issue was framed on that con-
tention and decided against B. In a subsequent
suit by B. to have it declared that a sum of
money, equal in amount to the sum paid on
admission in the former suit, comprised the rent
due on all the lands held by him under A. :—
Held, that such suit was barred as being res
judicata. Hussi'N Lall Shookol v. Chuxdei
DaSS. Garth, C.J., Jackson and Fbnttfex, JJ ..
I, L. Bflp.4Cal.836; 4 Cal. Sep., 1870.
14. Act XVIII. of 1873. § 95— TitU.-)
S. applied to the Revenue Court, under Act
XVIII. of 1S73, , 95, CI. in), for the recovery
of the occupancy of certain land, alleging that
the occupancy of such land had devolved upon
her by inheritance from her husband, and that
the landholder had wrongfully dispossessed her.
The landholder set up as a defence that 5. was
titled to the occupancy by inheritance,
but that she was a trespasser. The Revenue
Court held that 5. was entitled to the occupancy
of the land by inheritance, and granted her
pplicatlon. The landholder then sued 5. in the
'ivil Court for the possession of the land ; —
Hcld,per Turner and Pearton, JJ— That the
eal question raised, tried, and determined in
the application made by S. in the Revenue Court,
nderCI. (»), % 95 of Act XV 111. of 1873, was
■hether she was the widow and heir of her hus-
band. An application such as S. made, could
only, under the provisions of § 95 of Act XVIII.
of 1873, be entertained by Courts of Revenue,
d no other Court can take cognizance of any
>pute or matter on which such an application
ght be made. The question, therefore, of the
title of S. wa* res judicata, and not open to
-adjudication in the present suit.
Per Sjwnkie and Oldfield, JJ., contra.
boozed by Google
{ i«i )
DIGEST OF CA ;ES.
! 1202 J
RES JUDICATA-™**.
PerOldfield, J.-The jurisdiction of the Be-
venue Court in the matter of an application under
CI. (n) off 95 of Act XVIII. of 1873, is con-
fined to the determination of the matter of the
application, the dispossession otherwise than by
law of the tenant. It was not intended to give
the Revenue Court, when disposing of such ap-
plications, a jurisdiction to decide finally ques-
tions of title or succession under the Hindu law.
StIMBHU Narrain Singh 9. Bachcha ..I, L.
Bap. 3 All. 200, 1979, P. 11.
10. Act VIII, 0/1859. 5*— Farmer
Suit to recover Same Property oh Different Title."]
Certain property originally belonging to the
husband of the plaintiff, was conveyed by him
by deed of gift to his daughter after her mar-
riage with the defendant, as her stridhan. After
the daughter's death, the plaintiff sued the
defendant to recover this property, on the ground
that the deed of gift was a forgery, and that she
.titled t
i of her
That suit was dismissed, on the ground that the
deed of gift was genuine and valid. The plain-
tiffs then instituted the present suit against the
defendant to recover the same property, on the
ground that she was entitled thereto as heiress
of her daughter :—
Held,— Garth, C.J., dissenting,— that the suit
was barred. The plaintiff's cause of action in
the first suit, and which obliged her to seek the
aid of the Court, was that she alleged she
had been wrongfully deprived of possession of
property she was entitled to have, and she had
prevail against the defendant- And though the
title she now set up was a different title from
that set up in the former suit, it was not a new
title, newly acquired, and which could not, there-
fore, have been set up in the former suit, but was
a title which the plaintiff was entitled and bound
to have put forward in that suit. The cause
of action was not changed, within the meaning
of f 3 of Act VIII. of 1S59. by the change of title
set up. Denobundho Chowdhry v. Kristomo-
nbr Dossee.,.1. L. Rep. 2 Cal. 162, 1876,
P.ft,
Dissented from in XL. Rep. 4 Had.
808.
IO. Act VIII. of 1859,** land 170—
Hindu Widow — tarntW.) A., a Hindu widow,
brought a suit against the defendant to recover
her husband's share of certain joint property.
After having partially examined one of her wit.
RES JUDICATA— conid.
!3, A- declined to proceed further with their
sfai
1. and cited the defendan
), her si
ed. No appeal was preferred from that order,
and A. subsequently died, leaving a daughter,
the plaintiff in the present suit, and who sued now
on behalf of her minor sons, as reversioners to
iheir grandfather's share, to recover the share
which was the subject-matter of the former suit.
The defendant was summoned as a witness, but
did not appear : —
Held, that the rule that a decree against the
idow binds the reversioner is subject to the
qualification that there has been a fair trial of
the right in the former suit. The suit, therefore,
was not barred, under f 2 of Act Vlll. of 1S59,
as being res judicata, until it was shown that the
former decree had been obtained after a fair
trial ; and the defendant having refused to come
|n and give his evidence upon that point, the
Court was justified in dealing with the case under
1 1700! Act VIII. of 1859, and giving the plain-
. 7 a derree B.-iammovk Dassbe v. Kristo
M.OHUN MOUKERJBE. Afarkby and Ainslie, J] ...
L L. Ksp. 9 Cal. 222, 1879.
17. Beng. Act VIII. 0/ 1869, 5 sg—I."
nancy in Abeyance.] A., the zemindar, granted a
patni lease of certain talouks to B.. who assigned
t to C, and D. On B.'s death C. and D. applied to
the Collector for registration of the patni talook
in their name as assignees of B. A. objected to
the registration, on the ground that the lease
enured only for the life of B. A.'s objection being
overruled, he instituted a regular suit to eject C.
and D., the present defendants, which was de-
cided against A. finally in the Privy Council in
1874. Pending this litigation, the zemindar
sued to recover the rent for 1868, not on the basis
of the patni lease, but for use and occupation,
treating the tenants as mere trespassers. This
suit was dismissed, on the ground that the plain.
tiff ought to have sued on the lease. In 1875, the
plaintiff brought the present suit for the rent of
:£63on the^arni lease. The defendants pleaded
res judicata and limitation. The plaintiff con-
tended that the suit was within time, on the
ground that the right to recover the rent was in
suspense during the pendency of the litiga-
tion : —
Held, that the claim was not barred as being
res judicata, but was barred by f 39 of Beng.
Act VIII. of 1869.
D,gltlzed by G00gle
( IMS )
DIGEST OF CASES.
BBS JUDICATA— con I d.
A landlord, by merely denying the tenancy
and bringing a suit to recover possession, in
which he is ultimately unsuccessful, does not put
an end to the tenancy so long as the litigation is
roingon. Such a mete dental of the landlord,
or a denial coupled with an unsuccessful
attempt to eject the tenants, does not in any way
affect the tenant's position.
The defendant's position in this case remained,
therefore, wholly unaffected by the litigation
above mentioned, and (here was no ground for
departing from the ordinary rule that the rents
fell due in each successive year according to the
dates specified in the native pattas. Watson
A Co, v. Dhonendra Chunder Mookerjee.
Markby and Mitter, JJ...I. L. Bap. 3 Cal. 6,
1877.
18. . Suit for Specific Sum of Monty.
tn a suit to recover a moiety of the amount of
decree realised by the defendant, it appeared
that the plaintiff and defendant were uterine
brothers, and had in 1B70 effected a partition of
the property they had inherited from their father,
and thereby agreed that each should be entitled
to a moiety of all moneys that might be subse-
quently recovered on account of a certain shop
which formed part of the property inherited and
then divided. In 1871, the defendant recovered
(871, the plaintiff, ignoring the partition, brought
a suit against the defendant, for an account of
the joint business, which he treated as still
subsisting, and for the recovery, among other
items, of the said moiety of the decree. That
suit was dismissed, on the ground that the
Court found that by the partition the business
was put an end to. The plaintiff then instituted
of the decree, basing his claim on the terms of
the partition previously effected with the de-
Held, in accordance with Dinobundhoo Chow-
dhry v KrhtomonetDosste (I. I.. Rep. a Cal. 151).
that if a plaintiff sues for a specific sum of
money, he must put forward every right under
which be claims at that time that sum of money.
The plaintiff might in the former suit have
claimed, that even if he was not entitled to a
share in the deciee as an item of the gene-
ral account which he claimed, he still was
entitled to it on the terms of the partition
itself, whether (he business continued after the
BBS JUDICATA— contd.
partition Or not. The plaintiff, therefore, having
two rights under which he could recover the
share of the decree, having put forward and
claimed on, one of such rights only in the former
suit, was, in accordance with the decision in the
above case, precluded from bringing a subse-
quent suit for the same share, based upon the
other right which might have been, but was not
asserted in the former suit. BheekA LaiL r.
Bhugguo LALL.P Markby and Priiatf, J] 1
L. Bep. 3 CaL 23, 1877.
Dissented from in.. I. L. R. 4 Kad.
303.
19. Suit for Rent.] The plaintiffi
brought this suit to estiblish, as against the
[defendants, their title to certain lands in the
ion of a tenant. In a previous suit
'instituted by one of the present defendants
lagainst the tenant for rent, one ot the present
plaintiffs (representing the rights now claimed
by all of them) intervened as a defendant, on
the ground that he was the person entitled to
the rent, and failed to establish his claim:—
Held, following Burn Suntur Mookerjtt v.
Muitoram Patro (IS Beng. I,. Rep. 2jg;S.C
34 W. Rep. 154), that the plaintiffs in this case
were barred by the judgment in the former suit.
When once it is made clear that the sell.
same right and title was substantially in issue
in both suits, the precise form in which the suit
was brought, or the fact that the plaintiff in the
one case was defendant in the other, becomes
immaterial. Gobihd Chunder Koondoo i.
Taruck Chunder Bose...L L. Bep. 3 Cal
14B&1 Cal. Bep. 39, 1877, F. B.
20. ActX.tfrtrj, j 1 3- Ad XXIV.
n/i&67, i 60— Act It. 0/1874,1 03— "ft/t"]
An application by petition under { 6] of Act II-
of 1874 is a suit within the meaning of f ■3°'
Act X. of 1877, and therefore such an appi'"'
tion is barred by the disposal of a formei
application in the same matter, under the same
section, or under ,60 of Act XXIV. of i«7.
which the Act of 1874 repeals; this is so
whether the order is one for payment of money
or one dismissing the petition. \ 63 of Act II. of
1S74 contemplates that the money which is ibe
subject of the petition may be claimed bj
parties other than the applicant, and that those
parties may appear and be represented at the
hearing : and the words " binding on all parliet
D,„i„.db»Googlc
( 1W6 )
DIGEST OF CASES.
( nea )
RES JUDICATA— CO*r-t
were intended to make the order binding on
such parties as well as on tbe petitioner.
The order passed under that section can be
reviewed, under (623 of Act X. of [877. Smith
o. Secretary vr State. Garth, C. J., and
Markhy,] X L. Rep. 3 Cal. 840, 1878.
_ 81. Simple Mortgage Bond — Mart.
gagee's Lien — Money Decree — Sale of Mortga.
gor's Right, Title, and Interest in Execution of—
Registration Act XX. of 1866, f 53, Summary
Procedure under— Act VIII. of 1859, ff 1 and
7.] The plaintiff had a simple mortgage bond,
which was specialty registered and charged the
lands in suit with other properties. Certain
creditors of the mortgagor attached the land
under mortgage, and the sale was fixed for the
24th of February 1871. Meantime, on the list
of February 1871, the plaintiff obtained
mary decree under the provisions of Act XX. of
'866, § 53. The lands were sold under the cre-
ditor's attachment, and purchased by the defend-
ant. The plaintiff subsequently, on the 30th of
July 1871, sold the right, title, and interest of the
mortgagor under an attachment issued under
his summary decree, and became the purchaser
thereof. The plaintiff now sued the mortgagor
and the defendant to enforce his lien against
the mortgaged properties;—
Held, following i/a'ait Chunder Ghosev. Dino-
bundho Base (l4Beng. L. Rep. 408; S C 23
W. Rep. 1R7), that the plaintiff having detibe-
rately elected to take a mere money decree
against the mortgagor, in the summary proceed.
jngs instituted by him, although there was no
intervening charge or interest, the present suit
was not maintainable.
It was by no means certain that the operation
of f 7 of Act VIII. of 1S59 would not in itself
be an answer to the present suit, as a suit
in which full relief could have been given,
might, at the time of the summary decree, have
been instituted against the mortgagor. Doss
Money Dossee v. Jonmbnjoy Mullick. ya<-4.
ten and Kennedy, JJ...I. L. Rep. S Cal. 363 ;
1 Cal. Rep. 446, 187d.
Overruled by Jonmenjoy Mullick
v. Dass money Dossee I. I..
Rep. 7 Cal. 714 ; 0 Cal.
Rap. 3S3.
See VoL 9, Col. 979.
And in also I. L. Hep. 8, Cal. 700-
RES JUDICATA— contd.
22. Butwarra Proceedings.'] The plain-
tiff sued tbe defendant to recover certain
lands that had been allotted to him in butwarra
proceedings carried out under Reg. XIX of 1 806.
In a former suit brought by the defendant against
a tenant of a portion of the land in dispute for
rent, the plaintiff intervened, on the allegation
that he was the rightful landlord ; but he put
forward no claim to the property based on the
butwarra proceedings. In that suit, the defend.
ant, the then plaintiff, obtained a decree on the
ground that he had established a right to, and
was in possession of, the lands in dispute i —
Held, that the adjudication in the former suit
in which the question of title between the
plaintiff and defendant was distinctly raised
and determined, Was a bar to the present suit.
j As, moreover, the former suit was instituted
i two years after the conclusion of (he butwarra,
any right to ihas possession which the plaintiff
considered himself entitled to under the but-
■warra, should have been expressly set forth
in that suit. The plaintiff, therefore, was
estopped, under the ruling in Gobtnd CAunder
Koondoo v. Taruci Chunder Base (I. L. Rep. 3
Cal. 145 ; S. C. 1. W Cal. Rep. 35), from set.
ting up this title in the presentsuit. Bemola-
Sf HINDU kv Chowdhrain t. Panchahun Chow-
DHRY. Kemfi and Morris, JJ...1. X,. Rep. '3
Cal. 70S, 1873.
S. C under Butwarra.
23. Act VIII. n/1859, f I.] When a
plaintiff claims an estate, and the defendant, be.
ing in possession, resists that claim, be is bound
to resist it upon all the grounds that it is possible
for him, according to his knowledge, then to
bring forward, and if he fails to do so, he is
estopped from assertingany of them afterwards.
Where, therefore, the defendants sued the
plaintiff to recover possession of property, in the
plaintiff's possession, which had.been purchased
by them, and the plaintiff only denied the title
of the defendants' vendor, alleging that he was
in possession of the property in virtue of its pur-
chase at an auction sale, and the defendants
obtained a decree : —
Held, that the plaintiff was debarred from
bringing a subsequent suit against the defend'
ants to recover possession of the same property
on a claim of a right of pre-emption in respect
thereof: Such a right would have been a good
answer to the former suit by the defendant, and ■
might and ought to have been then asserted by
, Google
( 1267 )
DIGEST OF CASES.
( '»
)
RES JUDICATA— anld.
the plaintiff. Baldeo Sahai v. BaTEShar
Singh. Turner,C.)., and Spantie, J I. L
Rep. 1 All. 76, 1870.
34. Act VIII. of i8s9, ( 2-] When a
plaintiff claims an estate, and the defendant be-
ing in possession, and knowing that he has two
grounds of defence raises only one, he shall not,
in the event of the plaintiff obtiininga decree,
be permitted to sue on the other ground to re-
cover possession from the plaintiff.
Where, therefore, the defendant purchased an
estate in the plaintiff's possession and sued him
to recover possession of it, and the plaintiff re-
sisted the suit merely on the ground that the sale
to the defendants was fraudulent and without
consideration, and the defendants obtained a
decree, and the plaintiff then sued claiming a
light of pre-emption in respect of the property,
a claim which he might have asserted in reply
to former suit ;~
Held, following Baldeo Sahai v. Batesha* Singh
(I. L. Rep- I All. 75), that he was debarred from
suing to enforce such claim. Jadu Lal v. Ram
Ghoi.au. Pennon and Spaniie, JJ ...I. L. Rep.
1 All. 316, 1876.
38. Hindu Widow— Reversioner] A
Hindu widow succeeding to her husband's estate
as heir represents the estate fully, and reversion-
ers claiming to succeed after her are bound by
decrees relating to her husband's estate obtained
against her without fraud or collusion. On her
husband's death, a Hindu widow obtained pos-
against her for possession thereof by certain per-
sons claiming to succeed to the estate as rightful
heirs, the widow pleaded that the property was
separate and self-acquired property of her hus-
band. The plaintiffs in that suit, however, ob-
tained a decree on the footing of the property
being the undivided property of themselves and
the deceased :—
Held, that that decree was a bar to a suit
against the same persons by the daughter claim-
ing the estate in succession to the widow, the
decree against the latter having been fairly
and properly obtained. Nandkunar n. Radha
Kuari. Stuart, C.J.,and Otdfieid,]...!. L.Rep.
1 All. 283, 1876.
36. Act VIII. of a^—Dttermiiuttitn
ofltsatnot Absolutely Necessary for the Deter-
mination of the Case.'] In a suit on a bond for
money charged on immoveable estate, it appeal
RES JUDICATA— amid.
ed that the bond had been given to one 7*., and
charged certain immoveable property. The ob-
ligors subsequently sold the property to the
defendant. T. subsequently obtained a decree en
the bond against the obligors, which declared
the property liable to be sold in execution of the
decree. The defendant, having failed in his
objection to the sale in execution of the property,
sued T. and the obligors of the bond to establish
that the property was not liable to sale. The
Munsiff fixed as issues, whether the properfj
was liable to he sold in execution of TVs decree,
and whether the bond was collusive, and deter-
mined that the property was not liable to be sold
in execution of T.'a decree, as that decree,
;o far as it affected the property, was passed
without jurisdiction ; and on the second issue be
found that " though an ex-parte decree w>1
given in favour of T., yet, as T. could not pror*
the validity of the bond in this Court, the bond
must be considered as collusive." T. appealed
up to the High Court, and the decree of the
Munsiff was confirmed. In his appeals he took
no objection to the determination on the iss«
respecting the bond : —
Held, that though the Munsiff might h*«
disposed of the former suit without adjudicating
on the issue as to the validity of the bond, on
the basis of his findings on the other issue* tried
by him, yet he was perfectly justified in laying
down that particular issue for trial, as it arose
out of the pleadings, and an adjudication on it
might have been necessary, and his finding there-
on rendered his decision in the case more Era
and complete ; and he was not bound lo refrain
trom adjudicating on it, under the circumstance!,
nor could his adjudication thereon be treated al
a nullity. If his finding were open to objection
on the ground of irrelevancy or error, the objec-
tion might have been taken in the appeal pre-
ferred by T. ; but it not having been so taken,
the finding remained undisturbed, and the ques'
tion determined by it was res judicata, and not
open to re-adjudication. Man Singh v. NaR-
RAVAN Pas. Pearson and Spankir, JJ . L L.
Rep. 1AR 480, 1877.
Note. — Where the word ' obligors' appears
above, the word in the report is ' obligees,' but
it is apprehended that that is probably an error'
37. Act VIII- of 1859. * *0 0b*
y.R. had four sons, B.. M., J., and R. "T- died in
1868, and R. previously leaving a widow 0., "
Digitized byGOO^Ie
(
DIGEST OF CASES.
( 12T0 )
BE8 JUDIC A TA— con td.
died in 1871. leaving a daughter, the defendant,
The plaintiffs, the representativescf M., on the
death of the defendant's mother D., sued the
defendant in 1874 for the property in question,
alleging that they were the heirs of R. and D.,
the defendant's deceased Father and mother, and
that R. was separate in estate from all
brothers. The defendant pleaded in that
that after R.'s death D. had adverse posse;
of the property in question, and that she was
entitled thereto by inheritance ; and the finding
was that " it had been established that for a
long period R., and after his death his widow I).,
had separate and adverse possession of the pro-
perty, and that,* under the circumstances, the
daughter" (i.e., the present defendant) "had
according to Hindu law, the right of inheritance
to the estate left by R. and D. as against
plaintiffs." The plaintiffs then subsequently
sued the defendant to recover the same property.
alleging that J- and R. lived and held the pro-
perty as joint property, and that y. succeeded
to R., and that they were his heirs : —
Held, that the judgment in the former suit was
final in respect of the defendant's title as against
the plaintiffs, whether they claimed in that suit
as the heirs of R- or of J. : for at that time any
title they had as heirs of J. had already accrued,
and the entire character of £>.'s and the defend-
ant's title, and possession as against them, was
opened out by the pleadings and properly fell to
be, and was, decided in that case, and could
not be raised again. Radhia «. Bern. Pearson
and Otdfitld, JJ L L. Rep. 1 All. 880,
1878.
98. Execution' ef Decree— Jurisdiction
— Lis pendens.] In execution of a decree
obtained by B. against R., the whole of certain
property in the possession of R. was attached
and advertised for sale. H. and M. preferred a
claim to a share in such property, but their claim
was disallowed. They therefore sued B. and
the legal representative of R., who had meantime
died, to establish their right to, and obtain pos-
session of, their share. This suit was instituted
in the Court of the. Munsiff, who had no juris-
diction to entertain it. The Munsiff, on the
application of H. and AC, requested the Court
executing the decree of B. to postpone the sale,
but Ibis request was refused, and the property
was purchased by the plaintiff. It was notified
at the sale that the suit of //. and M. was pend-
ing, and before the confirmation of the plaintiff's
RES JUDICATA— canid.
sale the Munsiff gave H. and ft. a decree, which
was confirmed on appeal by the High Court.
The plaintiff did not intervene in this suit, not
take any steps to get the decree set aside, but
instituted a suit against H. and M. to recover
possession of the share for which they had
obtained a decree, in virtue of his auction
Held, that the plaintiff was not bound to
intervene in the MunsifFs Court, which had
no jurisdiction to dispose of the matter, and
could not be bound by the decree, which was
patently invalid, and for that reason did not bind
passed. The decree which was passed in that
suit being invalid for want of jurisdiction, and
a nullity, the question which was tried and
determined in that suit was not res judicata, and
was open to be adjudicated In the present suit
The plaintiff was not bound to take steps to get
the decree set aside by means of appeal, nor did
his omission to do so render it binding on him.
Quare, whether the doctrine of Us pendens
applies to this case. That doctrine seems to be
applicable to cases In which the alienation is of
a voluntary nature, and not to an alienee who
has bought a property sold in execution of a
decreee. Ali Shah v. Husain Bakhsh. Pear-
son, and Oldfield, JJ..X L, Rep. 1 All. 688,
1878.
29. Identity of Bases of Claim} The
plaintiff, as heir of the late Zemindar of Pitta pu-
ram, sued to recover from the defendants
certain houses and grounds in the fort of
Pittapuram, alleged to form part of an ancient
zemindari, and to have been occupied by the
plaintiff's grandmother as her place of residence
until her death in 1870, since which time the
defendants, who have lived with her, continued
occupation, and refused to quit.
It appeared that the plaintiff had formerly
brought a suit against his grandmother and the
father and sister of the defendants to recover two
es not now in question, and to impeach the
of his grandmother in regard toother pro-
perty belonging to the zemindari, assigned to
jr maintenance- A question was raised in
that suit whether the property, the subject-
matter of the present suit, was included in the
latter property, and it was found as a fact that
it was, and the suit was dismissed as to such
property, the judgment stating that no evi-
" Digitized byGOQgle
DIGEST OF CASES.
RES JUDICATA- cent J.
deuce had been offered respecting il
either
side ; but no distinct issue was raised with re-
ference to this property. The plaintiff, how.
ever, inthatsuit sought to restrain his grand-
mother from making illegal translers of the
property, and (o cancel two documents of trans-
fer made and registered by her : —
Held, that the decision in the former suit was
an adjudication by a competent Court between
the same parties, or parties under whom they
claimed substantially in respect of theproperty
now in dispute, and, though the relief sought wa:
different, new circumstances having occurred
the title now sued upon was the same which
was formerly put forward. That the plaintiff's
grandmother held property belonging to the ze-
mindari as part of her maintenance was a
question distinctly raised by the pleadings in
the former suit, and plaintiff's failure to prodi
evidence in support of that issue, which he was
bound to produce, did not make the order of
dismissal passed In consequence of his default
the less an adjudication. The present sui
therefore, was barred. Rama Rao v. SuKIV
Rao. Morgan, C.J-, and lanes, J. ..I. L. Kep.l
Mad. 84, 1876
Reversed on appeal in ..Ii. Hep. S I.
A. £08; I. L. Bep.2Mact.23;
30. Act VI. of 1863 - Confirmation ij
Board of Revenue of Penalty imposed by Co/lectoi
— Suit against Collector ~\ In a suit against the
Collector of Sea Customs. Madias, to re
damages for the wrongful and illegal fining of
the plaintiff in respect of certain opium alleged
by the defendant to have been smuggled by,
or on behalf of, the plaintiff from Madr.
Ceylon, where the plaintiff resided, and for
the wrongful seizure and conversion of
tain properly belonging 10 the plaintiff,
in order to satisfy such fine, it appeared that
the Board of Revenue, 011 appeal by the plaintiff
under the provisions of Act VI- of 1S63,
firmed the defendant's award. It was con
ed that, inasmuch as Act VI. of 1863 provides
a special tribunal, era., the Board of Revenue
to take cognizance of appeals from the adjudi
cation of the Custom House Officer under that
Act, the decision of that tribunal was final ; and
that the cognizance of the present suit
precluded thereby : —
Held, that to say that the present suit
RES JUDICATA --amid.
barred hy the decision of the Board of Revenue,
irming the adjudication made by the defend,
because the cause of action had been thus
heard and determined by a competent Court,
lisapply the term " cause of action."
: of action which came before the de-
fendant, was the alleged violation by the plain-
iff, within the defendant's jurisdiction, of the
.revisions of Act VI. of 1863, No separate
ause of action arose by reason of the appeal,
ml there was, therefore, no cause of action
adjudicated on by the Board of Revenue other
1 that which was before the defendant. The
c of action in the present suit was entirely
inct, and the suit, therefore, was not barred
Collector of Sea Customs, Madras, >.
'UNNIAR CHITHAHBARAM...L I.. Rop . 1 Mfld.
89, 1876, P. K
See the Judgment of Innrs, ]., p. Ill wu>
S- C. under Act X VT.II- of 1850 an!
Jurisdiction. 13.
81. Suit" for Rent.'] The plaintiff in
873 sued the defendant for arrears of rent Joe
m a certain jote, alleging that it was an c*ufo«-
ice tenure, and that the defendant was liable to
.ay rent at the rate of Re. I per big: The
defendant pleaded that the jote was held by him
iform rent for more than twenty years,
and this contention was supported bytheConit.
The plaintiff then gave the defendant notice of
enhancement for increase of area found bj
measurement, and holding below the prevailing
rates, and sued to recover rent for two years »t
the rate of Rs. 16, and for one year at u
increased rate on the larger area. To this snil
the defendant made the same defence as in the
previous suit : —
Held, that the decision in the previous suit
was not a bar to the present suit. There were
two questions for consideration ; one, whether
there had been a uniform payment of rent for
twenty years, and if so, whether the presumption
which the law directs to be raised from
a uniform payment of rent for twenty
years had been rebutted by the plaintiff; upon
neither of which questions was the decision i"
the former suit conclusive on either point.
Though the Court, in the former suit «'»
pipressan opinion that for twenty years rent
had been paid at a uniform rale, that was »«*
a question in issue in such a manner as to make
the decision in the former suit conclusiveonlne
D.gmzed by G00gle
( 1273 )
DIGEST OF CASES.
( 1274 )
RES JUDICATA— con Id.
point. GOPEE MoHUN MoZOOMDAR V. HlLLS.
Markby and Primep, JJ L L. Rep. 8 Cal.
789, 1878.
83. Determination ef Title— Act XIX.
"f 'S63, ff 8, 9.] Where M., the recorded
proprietor of an estate, applied to have his
share of such estate separated, and an objection
was made to such separation by H.t another
recorded proprietor of the estate, which raised
the question of A/.'s proprietary right to a
portion ol his share, and the Collector proceeded,
under f 8 of Act XIX. of 1863, to inquire into the
merits of such objection, and decided that IH.'s
interest in such portion of his share was that of a
mortgagee, and not a proprietor, and M. did
not appeal against such decision, which became
final !—
Hcld.ia a suit in the Civil Court by M.
against H. in which he claimed a declaration of
his proprietary right to such portion, that a
fresh adjudication of his right was barred.
Har Sahai Mal v- Maharaj Singh. Pearson
and Old-field, JJ...L L. Rop. 2 AIL 294, 1878.
33. Land-holder and Tenant— Deter.
mination by Revenue Court of Title under a
Lease, on an application under § 390/ Act XIX.
of 1873.) The plaintiffs in this suit, land-
holders, had caused a notice of ejectment to be
served on the defendants, their tenants under
a lease, on the ground that the tenancy had
expired. The defendants applied to the Re-
venue Court, under ( 39 of Act XIX. of 1873,
contesting their liability to be ejected, on the
ground that the lease was a perpetual lease.
The Revenue Court held, with reference lo the
word " istimrari" contained in the lease, that
the lease was perpetual, and the defendants
were not liable to be ejected. The plaintiffs
thereupon sued in the Civil Court for the can-
eelmcnt of the word " istimrari' in the lease,
on the ground that it had been fraudulently
inserted : —
Held, on appeal from the decree of the lower
Appellate Court dismissing the suit as barred
by the decision of the Revenue Court, that it
was not so barred, the matter in dispute being
peculiarly within the jurisdiction of the Civil
Court, and not one which a Revenue Court was
competent finally to determine on an appli-
cation under f 39 of Act XIX. of 1873. Ha-
5am Shah v. Gopal Rai. Oldfield and Straight,
JJ I. L. Rep. 9 All. 428, 1879.
RE-SALE IN EXECUTION OP DECREE
—Appeal lies from Order on Application
to make Defaulting Purchaser liable for
Set Appeal— Civil. 17.
Ram Dial v. Ram Das . ..X L.
Rep. 1 All. 181.
Act VIII. of 1859, ( 2U-Rigkt of Judg-
ment.Creditor.'] Where property has been sold
under a decree, and the purchaser at the execu-
tion sale makes default in payment of the pur-
chase-money, and the property Is in consequence
re-sold for a less sum than was bid at the first
sale, the judgment. debtor is not entitled to credit
for the full amount bid at the first sale, but only
for the amount realized by the second sale ; and
the judgment -creditor's remedy is not limited
by i 254 of Act VIII. of 1859, to a suit against
the defaulting purchaser, but he may recover (lie
balance of his debt from his judgment-debtor,
who may perhaps have his remedy over against
the defaulting purchaser. Joo! raj Singh v. Cour
Butshlattf Ca].W. Rep. Civ Rul.,100) dissent-
edfrom. Anandrav Bapujih. Sheikh Baha.
Mefaill and Kembull,}] I, L. Rep. 3 Bom.
663, 1878.
RESERVOIR.
See Penal Code, § 377.
Empress k Haf.aokur Pakos.-.L
L. Rep. 2 Cal. 383.
RESIDENCE..
See Civil Procedure Code, Act X. of
1877, f 380.
Mai
dShui
■. I.A
bulla I. L. Rep 3 Bom.
397.
Sir Jurisdiction. 3.
Fatima Begam ». Sakina Begam.
I. L. Rep. 1 All. 61.
Devise on Condition of.
See Will. 10.
Ganendro Mohun v. Rajah Jut-
tenuko Mohun... L< Rep. 1
I. A. 387.
RESIDENCE BY HINDU WIDOW IN
FAMILY HOUSE NOT NECES-
SARY TO ENTITLE HER TO
CLAIM MAINTENANCE.
See Hindu Law— Maintenance of
Widow. 3. 3. 7.
3.aitizea by Google
( I27G )
DIGEST OF CASES.
( 1270 J
RESIDENCE BY HINDU WIDOW IN
FAMILY HOUSE NOT NECKS-
BABY TO ENTITLE HER TO
CLAIM MAINTENANCE-™.,^.
RanooVinayak t>. Yanvhami...
I. Ii. Rep. 3. Bom. 44.
KaSturbai v. Shivajiram Ibid.
379.
Naravanhao e. Rakabai L.
Sep. 6 I, A. 114 ; I. L.
Rep. 3 Bom. 415.
RESIDUARY REQUEST TO CHARI-
TY—Application of Doctrine of Cy-pres
when.
Sre WilL 11.
Mayor of Lvohs r. Advocate
General op Bengal ..L.
Rep. 3 I A. 32; I 1.
Rep. 1 CaL 803.
General—Con si roctio n of Will.
Srr WUI. 7.
DWARKAHATH V. BURRODA...I. L.
Rep. 4 Cal. 443.
RESIDUARY ESTATE- Executors when
entitled to— in Absence of Ex press Devise.
See WilL 1.
Treefoora Soonderv *. Deben-
dkonath I. It. Rep. S
CaL 45.
RESIDUARY LEGATEE — Right of —
claiming Share of Residue to open
Scheme for Administration of Charity.
Sre Will. 11.
Mayor of Lyons v. Advocate
General of Bengal L.
Rep. 3 I. A. 3a ; I. L.
Rep. 1 Cal. 803.
RESIDUE— Gift of— to a Class— Postpone-
ment of Period of Distribution — Act X-
of 1865, §§ 98, tot, 103.
Sre Will. 4. 6.
Maseyk «. Fbrgvsson I. L.
Sep. 4 Cal. 304,070.
RESPONDENT— Right of— to Appeal against
Judgment Ex parte in Lower Appellate
Court.
See Appeal- - Civil. 6. 28.
Kali Kishore Roy *. Dhunun.
joy Roy.. I. L. Rep. 3 Cal.
....I L. Rep.
2 Mad. 70,
RESPONDENT'S OBJECTIONS TO DE-
CREE APPEALED AGAINST.
See Pauper Respondent.
Bab All e. Ballal.-.I. L. Rep. 1
Bom. 70.
RESTITUTION OX1 CONJUGAL
RIGHTS— Right of Mahometan Wife
to resist Suit for— until Payment of her
See Xahomedan Law Dower. 3,
Eidan «. Mazuak HusSain ...
I. L. Rep. 1 All 483.
1. — Cruelly — Hindus.'] In a suit be.
tween Hindus for the restitution of conjugal
rights (he only safe and practical criterion of
cruelty, justifying the wife's refusal to live with
her husband, is that contained in the definition
which guides the English Courts, namely, that
there must be actual violence of such a character
as to endanger personal health or safety ; Of
there must be reasonable apprehension of it.
An unfounded charge of unc hastily, therefore,
made by the husband against his wife, and per.
slated in, is of itself not sufficient to constitute
legal cruelty. Every person who receives a
married woman into his house, and suffers her
to continue there after he has received notice
from the husband not to harbour her, » liable
to an action for damages, unless the husband
has, by his cruelty or misconduct, forfeited his
marital rights, or has turned his wife out of doors,
or has, by some insult or ill-treatment, compelled
her to leave hint.
Srmiie, obedience to the order of a Court
directing the wife to return to cohabitation would
be enforceable, under § 200 of Act VIII. of 1859
by imprisonment, or attachment of property or
both. Yamonabai v. Narrayan Moreshvar
Pehdse. Meivili and West, J] ... I. L. Rep. 1
Bom. 164, 1876.
See Ajnasi Kuar r. Suraj Prasad...
I. L. Rep. 1 All. 001.
Under Civil Procedure Code, Act
VIH. of 1859, §200.
9. Form ef Decree.} In a suit by a
Mahomedan husband against his wife for resti-
tution of conjugal tights, the Court of first
instance had decreed that the husband should
get possession of the person of his wife : — Held,
that the form of the decree was erroneous and
must be amended. The decree should simply
declare that the plaintiff was entitled to the
D.gmzed by G00gle
( 12»7 )
DIGEST 6? CASES.
( 1W8 )
CONJUGAL
RESTITUTION 0
BIGHTS— cantd.
restitution of conjugal rights, and that the de-
fendant be directed to go to her husband's
house. PuRZAND H OSSEIN V. JAKU BtBEB.
Mitter and Maclean, JJ I. L. Hep. 4. Cat.
688, 1878.
S. C. under Mahomedftn Law —
Divorce 2,
RESTORATION OF PROPERTY AL-
LEGED TO BE BTOLEN-Ordcr
for.
See Criminal Procedure Code, Act
I. of 1872, §§415.419.
In re Anpurnabai.„L L. Rep. I
Bom. 680.
RESTORATION OF STOLEN PRO-
PERTY—Appeal from Order for.
See Government Currency Note.
Empress o. Jaoessur Mocm...
I. L. Rep. 8 CaL 879.
RESTRAINT ON PARTITION, CONDI-
TION IN.
See Hindu Law— Wilt 1.
RESTRAINT OF TRADE- Agreement
S/e Contract. 17. 17a.
RESULTING TRTJST-Hindu Executor-
Void Bequest— Suit by Heir.
See Limitation. 38.
Khekodehoney p. Doorg a mo-
NEV...L L. Rep. 4 Cal. 456.
RESUMPTION— Of Grant in lieu of Main-
tenance—Limitation.
See Limitation. 8.
Petamber Baboo v. Nilhony
Singh...L L. Rep. 8 Cal.
793.
—— Of Invalid Lakkira; Lands— Suit fur— Onus
Probandi,
See Onus Probandi. 3.
Arfunnessa «. Peary Mokun.
I. L. Rep. 1 Cal. 878.
— Of Rent-free Service Lands.
See Resumption. 3.
See Ghat wali Tenure.
Leelanund Singh v. Thakoor
Munrunjun.,,1. L. Rep. 3
CaL 361.
RESUMPTION-«mW.
1- Of Grant in Krishnarpan — Reg.
X/X.ef t793,f tO-Reg. XLI.cf 179s, f 10—
Act XVIII. 0/1873, *f 3°. 35. Att XIX. of 1873,
f j 79. **'■] The plaintiff claimed the posses-
sion of certain lands in virtue of a grant thereof
to him in Krishnarpan, not merely of the pro.
prietary right in such lands, but of the whole
yield or rent of the same, undiminished by the
payment of the revenue assessed thereon, which
the grantor undertook to pay ; —
Held, by Stuart, C.J., Pearson and Oldfietd,
JJ.— The grant was null and void and liable
to resumption with reference to j 10 of Reg.
XIX- of 1793 and XLI. of 1795, and J 30 of Act
XV1IL of 1873 and i 79 of Act XIX. of 1873.
By Spaniie, J. — That the question whether
the grant was null and void with reference to
those Regulations and Acts did not arise, as the
grant, on the facts found by the Court below,
was not one within the terms of those Regula-
By Stuart, C.J., Pearson and Spaniie, JJ._
That the suit was cognizable by the Civil Courts.
Jaoan Nath Pandayo. Prag Singh L L.
Rep. 8 All. 646,1879.
9. — Right to Resume Service Lands—
Rent-fret Land— Right to levy Assessment— Li-
mitation.']' The Talukdai-i Settlement Officer
having assessed rent-free land on the ground
that it had been granted for service, and that
service was no longer required : —
Held, that this was not a sufficient defence to
an action by the holder of the land, to recover
the amount paid of the rent that had been
imposed, and to cancel the order imposing it,
1st, if the grant were the grant of an estate
burdened with service, there was no evidence
that it was of such a nature, or so expressed, as
to make the continuance of the tenure depend,
ent on the continuance of service.
andiy, if the grant were the grant of an office'
the performance of whose duties was remune-
rated by the use of the land, the right to resume
or assess the lands was barred by limitation;
for, the original grantee having died in 1853,
when at all events, if not before, the right of
resumption accrued; and the plaintiffs, and
those through whom they claimed, having had
undisturbed possession for forty years, that
sssion, at all events from the time of the
death of the original grantee In 1853, must be
regarded as adverse to the talukdar, whose
by Google
( 12TB )
DIGEST OF CASES.
{ 1280 )
RESUMPTION— eotttd.
right to resume or assess was consequently
barred by Act IX. of 1872, f 3g, and Scried.
II., Art. 130. Keval Ruber ». The Taluk-
dari Settlement Officer. MehiU and Kern-
loll,]} t L.Rep. 1 Bom. 686, 1877.
RESUMPTION OF TALTJK OH DEATH
BEFORE THE LETTER OF 10th
OCTOBER 1859, OF TALUZDAB
WITH WHOM SUMMARY SET-
TLEMENT HAS BEEN EFFECT-
ED.
See Act L of 1869. 3.
Ranee of Chillabie e. The Go-
Rep. 4 I. A. 208.
RETAINING IN BRITISH TERRI-
TORY PROPERTY STOLEN
IN DACOITY COMMITTED IN
FOREIGN TERRITORY.
See Criminal Procedure Code,
Act X. of 1872, § 67. 1.
Reg. e. Lakhva L L. Rep. 1
Bom. 60.
RETROSPECTIVE OPERATION OF
LEGISLATIVE ENACTMENTa
See Civil Procedure Code, Act X
of 1877, § 843.
Rattansi Kallianii...I. L. Rep-
2 Bom. 148.
See Bombay Act V. of 1863. L
RaNCHODAS t. RANCHODAS...L L.
Rep. 1 Bom. 681.
RETURN— Widow's Right to the.
See Mahomedan Law— Inherit,
ance— Return.
Mahomed Arshadb. Sajida Ba-
koo I. L. Rep. 8 Cal.
703.
bbturn of memorandum of
appeal for amendment-
no Time fiied Eor Amendment— Amend
ed Memorandum presented after Expi
ration of Time (or Appeal.
See Appeal— Civil. 14.
lAGAN NATH V. L.ALKAN...I. L.
Rep. 1 All. 360
RETURN OF PLAINT — Appeal from
Order for — made after Admission of Suit.
See Appeal- Civil. 36.
Kalian Das. ». Nawal Singh...
L L. Rop. 1 All. 630.
Appeal from Order for — after Issues
See Appeal— Civil. 36.
Abdul Sahad v. Rajendro Ki.
shor Singh...!. L. Rep. 3
AIL 867.
Want of Jurisdiction.] Where the Appel-
late Court decides that the lower Court had no
jurisdiction to entertain the suit, it should return
the plaint to the plaintiff in order that it may be
presented before the proper Court. Bai Mah-
or v. BuLAKHt Cmaku. Kembail and N. Har-
Idas- J] I. L. Bep. 1 Bom. 638, 1874.
RETURN TO WRIT OF HABEAS COR
PUS — Power of High Court on — to
inquire into Validity of Commitment by
Small Cause Court— Affidavits -Delay—
Terms.
See Privilege from Arrest.
See Small Cause Court— Preeiden.
cy Town. 6.
In the mattCT-o/OMRtTOLALL Dev.
L L. Rep. 1 Cal. 78.
REVENUE — Claims arising out of or connect-
ed with the Collection of.
See Act XIX. of 1873, S 341.
Ram Dial v. Gulab Singh. ..X. L.
Rep. 1 All. 36.
— Jurisdiction of High Court in Matters
relating to.
See .Turin diction. 13.
Collector of Sea Customs, Ma.
DRAS, V. PlINNlAB ChITHAHBA-
ram ..I. L. Rep.lMad.89.
Matters concerning.
See Right to Sue. 7.
Nobin Chunder Dev v. The
Secretary of State for
India ..I. L. Rep- ICal. 11.
Payment of — by Pattidar on Co-Sharers
Shares-Suit for Contribution.
See Act XIX. of 1873, § 341.
Ram Dial*. Gulab Singh.. I. L.
Rep. 1 All. 36.
D.gmzed by G00gle
( na )
DIGEST OF CASES-
(
)
REVENUE- cantd.
Remission of— on Revenue-paying Lands
does not alter their Nature as Revenue
paying Lands.
See Sale in Execution of Decree. 8.
Showers v. Seth Gobind Dass...
I. L. Hep. 1 AIL 400.
REVENUE ASSESSMENT — Agreement
between Vendor and Purchaser as to pay-
5ft Vendor and Purchaser. 3.
Hira Lai. v. Ganesh Prasad. ..I.
L. Rep. S All. 415.
REVENUE ATJTH0BITIE8 — Partition
by.
See But war a.
Behoolasoondeky v. Puncka-
NUH...I. L. Rep. 3 Cal. 709.
See Mortgage. 9.
BvjNATH LALL -,}, RaWOODEEN...
L. Bop. 1 1. A. 106,
See Partition liy the Revenue
Authorities.
Sharat Chunder ■
DO...L L. Rep. 4 CaL 610.
REVENUE COURT— Is Civil Court (or pur-
poses of Sanction to Prosecute.
See Sanction to Prosecute. 8.
Empress v. Sabsukh.,.1. L. Rep
2 All. 033.
REVENUE COURTS -JURISDICTION
OP.
See Act XVIII. or 1873, § OB.
Kalian Das v. Tika Ram.. I, L.
Rep. 9 All 187.
Act X. of 1859, i( 23, 84— Civil Courts'
Jurisdiction when excluded.
See Jurisdiction, 3.
KuifooD Naraih v. Pu rna Chun.
DHR...LL.Rep.4Cal. 647.
To decide Questions of Title— Act XVIII.
of 1873. I 95-
See Res Judicata. 18.
Shimbhu Narain Singh o. Back-
cha I. L. Rep. 3 AH.
800.
REVENUE COURTS-JURISDICTION
■ OF— cantd.
Claim arising out ot or connected with Col-
lection of Revenue.
See Act XIX. of 1873, § 341.
Ram Dial v. Gulab Singh...!. L.
Rep. 1 All. 36.
Suit by Co -Sharer against Heir of Deceased
Lambardar for Share of Profits collected
by Deceased.
See Act XVIII. of 1873, § S3. 3.
Bhikhan Khan v. Ratan Kuak...
I. L. Rep. 1 All. SIS.
Suit by Landlord against his Dewan com-
prising Items of Claim cognizable by Civil
See Jurisdiction. 3.
Kuhood v. Purna...L L. Rep, 4
Cal. 647.
Suit by Lessee of Occupancy Tenant eject-
ed by Landholder.
See Act XVIII. Of 1873, § 96. I.
Kalian Das e. Tika Ram. ..I. L.
Rep. 3 AIL 137.
In Suits for Money Equivalent of Arrears
of Grain Rent.
See Act XVHX of 1873, § S3. 1.
Tajuddih Khan o. Raw Pahshad
Bhaoat ...L L. Rep. 1 All.
317.
■ Wrongful Dispossession of Lessee by
See Act XVIII. of 1873, g 80, 01. m.
Abdul Aziz v. Wali Khan ..I. L.
Rep. 1 All. 333.
REVENUE COURT-POWER OF — To
award Interest in Suit for Profits.
See Act XVIII. of 1873, § 83. CI h.
Tota Rah e. Sher Singh. ..I. L.
Rep. I AIL 261.
REVENUE COURT SUBORDINATION
07, TO HIGH COURT AT ALLAH.
ABAD.
See Sanction to Prosecute. 3.
Empress ?. Sabsukh... I. L.Rep.
3 All. 633.
Diarized by Google
(
DIGEST OF CASES.
( 11*4 )
REVENUE-PAYING LANDS- Remi:
of Revenue for Term of Years on — does
not alter their Character as.
SwBale In Execution of Decree. 8.
Showers o. Seth Gobind Dass.
I. L. Rep. 1 All. 400.
REVENUE SALE.
See Sale for Arrears of Revenue.
REVENUE SALE LAW.
See Act XI. of 1868.
REVENUE SALE FOR DEFAULT OF
PAYMENT OF GOVERNMENT
REVENUE-Suit for Damages caused
by— by One of Several Joint Owners oE
Undivided Property.
See Damages. 1.
Lallah Ramessiiur v. Lallah
Bissen.I. L. Rep, 1 Cal.
406.
REVENTJE SALE SET ASIDE AFTER
JUDGMENT-DEBTOR'S INTER.
EST IN SURPLUS PROCEEDS
HAS BEEN SOLD IN EXECU-
TION.
See Bale in Execution of Decree. 17.
Ram Thul «. Riseswar Lall...
I. L. Rep. SLA. 131.
REVENUE SURVEY REGISTERS-
Entry of Names of Knot's Tenants in —
See Entry of Names of Knot's Te-
nants in the Revenue Sur-
vey Registers a a Occupant*.
D. R. Bah v. The Survey Com-
UISSIOHER of RATHACIRI...L
L. Rep. 3 Bom. 134.
REVERSAL OF DECREE— After Sale in
Execution but before Confirmation.
See Bale in Execution of Decree. SI.
Basapa v. Dundava.. I. L. Rep.
9 Bom. 540.
REVERSAL OF SALE OF LANDS
SOLD IN EXECUTION OF DE-
CREE, EFFECT OF.
Set Limitation. 73.
Issuree Dasee v. Abdool Kha.
lak...I. L.Rep. 4 Cal. 415.
REVERSIONARY HEIR — Limitatioe
against— before Act XIV. of 1859,
See Limitation. IB.
AllMRITOLAL BoSE V. R»J0-
NEEKANT MlTTEE ..lb Hep
3 L A11S.
REVERSIONER — Right of — (Deceased
Daughter's Son) to set aside Alienation 0! An-
cestral Property by Maternal Aunt,
See Hindu Law — Inheritance -
Daughter'* Bona.
Baijnath v. Mahabir.. L Ik
Rep.l AIL 608.
Right of— on Hindu Widow's divesting
herself of her Interest in her Husband's
Estate.
See Hindu Law — Forfeiture of
Widow's Estate.
Prag Das v, Harc Kishen.,,1. L.
Rep. 1 AU, BOB.
See Suit by Reversioner.
Gauri Dat 0. Gur Sahai.IL
Rep. 3 All «
Suit by— during Lifetime of Widow in
Possession, for Declaration of Title, >«A
to restrain Waste— Consequential Relit/.
See Declaratory Decree. 2.
Kathama Natch 1 a e. Doraswsa
TBVER...L. Rep. 3 I A
166 ; 19 Bene;. I. Sep.
83
Suit by — for Declaratory Decree.
See Declaratory Decree. 7.
MUSAMAT jAOtSKI V. RAHNATH.
X L. Rep. 1 AU. 371.
■ Suit by— Hindu Widow, to set aside Adop-
tion by Daughter-in Law.
See Right to Sue. 8.
JAMOONA DASSYA v. BaMASOOX-
DERA1 DAS8VA...L. Bep. 3
I. A. 73 ; I. L. Rep. 1 Cal.
389.
— Suit by — to Set Aside Alienation by Hindu
Widow — Terms.
See Hindu Law— WilL B.
MAFIOMED SliAHSOOI. •, SHEW11K-
• ram L.Rep.3I.A7.
Digitized byGOO^Ie
( 18«5 >
DIGEST OF CASES.
REVERSIONERS WHEN BOUND BT
DECREE OBTAINED AGAINST
WIDOW.
See Rm Judicata. 16. 25.
BrasimoveDassee b. Kklsto Mo-
HUN.XL.Rep.aCal.2S2.
Nano Kumar ». Radha Kimri...
I. L. Rep. 1 AIL 283.
REVIEW— Abandonment of Ground of Appeal.
See Review. 11.
Absence of Formal Finding on Issue deter-
See Review. 11.
Act XXVII. of i860.
See Appeal—Civil. 16.
Rukhim.,1. L. Rep. 1 All. 287.
Admitted after Time allowed.
See Review. 7. 10.
Finality of Order admitting.
See Raview. 3.
Order of Division Court to Magistrate to
inquire into Case— Sentence — Reference
for Confirmation— Power and Duly of
High Court to consider the Jurisdiction
of Sentencing Court.
See Criminal Procedure Code, Act
X. of 1872, §297. 7. -
EmPS
..I.
L. Rep. 2 All. 219.
Refusal to register.
See Practice— Privy Council. 8.
Meek Reasut Hoosein o. Hadjee
Abdoollah ..L. Rep. 1 1. A.
78.
See S. C. L. Rep. 8 I. A. 221; I. L.
Rep. 3 Cal. 131.
Under Review. 8.
1. Grounds on nhich {nut may be
admitted.'] A review may be admitted on any
ground, whether urged at the original hearing of
the appeal or nol. whenever the Court considers
that it is necessary to correct an evident error
or omission, or is otherwise requisite for the
ends of justice. Chintaman Pal v. Pyari Mohun
Movkerji (6 Bong. L. Rep. 126) followed. Kali;
Bhivajiif. Vishkam Mavaji. Piitkey, J...I. L.
Rep. 1 Bom. 543, 1 876.
2. Act VIII. of 1859, §§ 376, 378—
Power of Judge to review Judgment of his t'redc-
REVIEW —contd.
cesser— Finality of Order admitting Reviett.] A
judge lias no power to review the decision of his
predecessor merely on the ground that, having
gone into the case in all its details, he came to a
different conclusion on the facts from that at
which his predecessor arrived.
The law, though providing for a review of Judg-
ment in certain special cases, does not, under
colour of a review, authorize re-hearing for the
purpose merely of seeing whether the Judge, on
going through the case again, will arrive at a
different conclusion. A review cannot he given
merely to allow the parties to re-argue the case
on the evidence on the chance of eventually
throwing doubts on the soundness of the deci-
sion already passed. Sections 376 and 37S of Act
VIII. of 1850 show that the intention of the
Legislature was that a review should be granted
only on ihe discovery of new evidence, or for the
correction of some patent error — whetherof law
or fact— into which a Judge may have fallen, or
omission, or fur some such cause.
The general words used in those two sections
are controlled and restricted by the particular
words ; and it is only the discovery of new evi-
dence which was not within the knowledge of
the party applying for the review, or which could
be adduced by him at the time when such
decree was passed, or the correction of an evi-
dent, i.e., patent and indubitable error or omis-
or some other particular ground of the tike
description, which justifies the granting a review.
Where a review has been granted without any
legal ground being shown for doing so, the order
admitting the review is not final, but may be
questioned in special appeal. Ruv Meghraj jr.
Beejoy Gubind Burral. MaepAcTson, C.J.,
(OffgO,andff<>eA,J I. L. Rep. 10aL187,
1876.
8. Act VIII. of 1859, ( 376— Error in
Lav.] A Judge has no more right to review his
decision without sufficient reason than that
of his predecessors. The production of an
authority to which the attention of the Judge
was not called at the first trial, and which is op-
posed to his decision, is no ground for granting
a review of it. The parties ought to come pre-
pared with all their materials, both of law and
fact, at the first hearing, and if they do not come
properly prepared, they ought not to be allowed,
on discovering that they had omitted to bring
forward some decided case, to try the case over
again on the strength of their own omission. If
Diaxized by Google
DIGEST OF CASES.
( IMS )
REVIEW- cohW.
the Judge has decided improperly on a p
law, lhat would be matter for appeal,
review. Eliem v. Basheer. Garth, C-J-, and
Birch,] I. L. Rep. ICal. 184, 1875,
4. Act XXVII. 0/1860.] A review of
judgment is admissible in proceedings under Act
XXVII. of i860, though no express proi
ior review are contained in the Act. !
Chenama (5 Mad. H. C. Rep. 4 17) not followed.
Hameeda Becbee v. Noor Becbee (9 W. Rep. 394}
followed. In the matter of the Petition of Poona
Kooer. Glover and Witter, JJ...L L. Hep.
Cal. 101, 1876'
5. Act VIII. of 1859, H 376 to 378.]
Where a Judge has, in deciding a case,
to consider the effect of important documentary
evidence filed with theplaint which was not taken
Issue upon, and which materially affects the
merits of the case, he Is competent, under Sec
tions 376 to 378 of Act VIII. of 1859, to grant 1
review and re-hear the case. Mahadeva Rayak
v. Sappahi. Innes and Kernan, ]] I. L.
Sep. 1 Had. 396, 1878.
6. Act VUI. of 18S9, (f 376-378]
Where a Judge allowed a review of the judg.
ment of his predecessor on the sole ground that
it appeared to him that that judgment had done
injustice; — Held, that though the extre
ratity of the terms used in the sections of the
Civil Procedure Code (Act VIII. of 1859) relat-
to the review of judgment, via., " other good
and sufficient reason" <§ 376), and "otherwise
requisite for the ends of justice " (§ 378), confer-
red a wide jurisdiction, this jurisdiction was not
unlimited, and could not be held to authorize a
Judge to review and reverse his predecessor's de-
cree on the ground above mentioned. If a review
is asked for in reference to the conclusions of fact
drawn from the evidence, it should not be grant-
ed simply on the same evidence. Reosut Moos-
sein v. Hcdjee Abdoolla (I. L. Rep, 2 Cal. 131)
discussed. Raman it. Karunatha Tharakan.
Morgan, C.J ., and Inrscs, J...T, L, Hep. 2 Mad.
10, 1878.
7. Act VI/I.oft&S9,H2j6,377-Ad.
mission of Revirm after Ninety Days.'] Anorder
of a Civil Court admitting a review of judgment
after the expiration of ninety days from the date
of its decree, wiihout staling that there was, or
that it had been shown to its satisfaction that
there was sufficient cause or excuse for the delay,
REVIEW -amtd.
was held to have been improperly granted, and
was set aside, together with all subsequent pro-
ceedings in the cause. Luchuan Singh r.
SHUHSHERt Singh L. Rep. 2 L A. 68;
14 Beng. L. ft. 373,
1874.
8. Registration Act fill, of 1871—
Refusal to compel Registration — District Cowl
—Review-Act VUI. of 1859. §5 376 and 378—
Act XXIII. of 1861, $ 38.] On the 5th of
January 1872, the appellant presented at the
Registrar's Office at Gya a certain deed of gift
for registration. The respondents, the heirs.it-
taw of the alleged donor, who was dead at the
time of the application for registration, on being
cited, came in and denied the execution of the
deed ; and registration was accordingly refused.
The appellant then applied, under ( 76
.f Act VIII. of 1871, to the Zillah Judfe of
Cya, for an order to the Registrar to register
the deed. The application was rejected.
Within ninety days after such rejection the
appellant applied to the Judge who had suc-
ceeded the Judge who rejected his application,
:w of his predecessor's order. The ap-
plication in terms purported to be made under
H 376 and 378 of Act VIII. of 1859, and was
granted. After the order admitting the review",
t before the case was re-heard in pursuance of
the High Court of Calcutta, in the exercise of
extraordinary jurisdiction, set aside the order
admitting the review, as having been made
ultra vires :—
Held, on appeal, that this order must be re-
versed. Section 38 of Act XXIII. of 1 86 1 ex-
pressly makes applicable to a proceeding to
pel registration under the Registration Act
the whole procedure of Act VIM. of 1859, in-
cluding the power of admitting a review. Even
if the application for review contained no dis-
:inct allegation of an error of law, or any sugges-
:ion of the discovery of new evidence, yet looking
:o the extreme generality of the terms used in
§§ 376 and 378, particularly to the terms " other
good and sufficient reason, " and " necessary to
evident error or omission, or is other-
site for the ends of justice," it does oot
follow that there is absolute defect of jurisdic-
ever the parties have failed lo show
that there was either positive error in law, or
lew evidence to be brought forward which
.-ould not be brought forward on the first hear.
ng. On an appeal, where an appeal lies, it
Diarized by Google
DIGEST OF CASES.
REVIEW— contd,
may be open lo the Court of Appeal to say that
the Judge ought not to have admitted a review ;
but that is quite a different thing from ruling
that he has acted wholly without jurisdiction.
In the first case the Appellate Court reverses
the order, because the Judge has erred in the
mode in which he has exercised a judicial dis-
cretion; in the latter case it quashes the order,
because there was no discretion at all to be
exercised.
The District Courts mentioned in Act VIII.
of 1671 (except where the High Court is said to
be, when exercising its local jurisdiction, a
District Court within the meaning of the Act)
must be taken to be the Courts exercising the
ordinary civil jurisdiction within that district ;
and therefore in the case of a regulation pro-
vince, to import the ordinary Zillah Courts.
Rhasut Hosseih v. Hadji Abdoollah L.
Rep. SLA, 221, 1876 ; I. L. Rep. 2
C&l. 131.
0. Act VIII. of 1859, §5 376, 378-
Appeal.'] Although an order on an application
for review of judgment is final, yet in appeal
against the decision passed on review the ob-
jection may be taken that the review was
improperly granted.
An application for a review of judgment was
made to a Court of Appeal on the ground that
certain very material documents on which the
Court of first instance had relied had been
summarily discredited without being inspected
by the Court of Appeal, and that the Court of
Appeal had erred in declaring the report of a
Commissioner, appointed by the Court of first
instance Tor the purpose of making a local
inquiry, to be unworthy of reliance, because he
was a Mukarir of the Court of first instance ;—
Held, that in granting the review applied for
the tower Appellate Court had not exceeded the
discretion vested in it bylaw. Abdul Ra him
v RaCHa Rai. Stuart, C.J., and Pearson, J. ..I.
L. Rep. 1 All. 363, 1877.
10. Act VIII. of 1859, i &7— Admis-
sion of Review after Time — Just and Reasonable
Cause.] On the 8rd November 1875, the
plaintiff applied for a review of a judgment
dated the 13rd August 1S73, passed in a suit
brought by him against a minor upon a bond
executed by the minor's mother as his guar-
dian, whereby the Judge refused to pass a
decree against the minor or his property, on the
REVIEW— co itd,
ground that his mother had no power to borrow
money on his behalf, or alienate his property,
without the permission of the District Court,
which had granted her a certificate of administra-
tion under Act XL. of 1858 in respect of her
minor son's property.
The grounds for the application for a review
were, that the minor's mother had not been
granted a certificate under Act XL. of 1858, as
the Judge supposed, but under Act XXVII. of
i860, and that, according to a decree of the High
Court, dated 13th August 1875, the minor's
mother was competent, under these circumstan-
ces, to bind her minor son, without the
sanction of the District Judge; and the applica-
tion for review alleged that it was made"with
reference to evidence which could not be adduc-
ed when the case was decided, nor within the
period allowed by law," — the evidence being tbe
judgment of the High Court of the 13th August
I%S —
Held, that the judgment was not, properly
speaking, evidence at all. It was merely authori-
ty in support of a contention which should have
been urged when the case was first heard.
The Court did not say that the grounds set
out in the application for review were not good
grounds for granting a review, nor could they
be called in question. But however good they
were, the application could not be granted unless
nable
) the
satisfaction of tbe Court for not having preferred
it within the time allowed by law, and in this
case no such just and reasonable cause had
been shown. The reference to the High Court's
judgment was a mere blind. The argument to
which that judgment gave countenance, and the
other arguments and statements contained in
the application, might have been adduced within
the proper time, and the lower Court, therefore,
was not warranted in admitting the review.
Madho DaS v. Rukman Sevah Singh. Pearson
and oldfirld, JJ...X L. Rep. 2 AIL 287, 1878.
11. Absence of Formal Finding on Issue
determ ined—A bandonment of Ground of Appeal.]
The absence of a formal finding on an issue tried
and decided by a High Court of first instance, is
not an error calling for a review of judgment in
the High Court. A party who not only had an
opportunity of raising a question, but who did
raise it, in appeal, and on argument abandoned
it, cannot, under ordinary circumstances, be
1 allowed to agitate the question on review.
D,gltlzed by G00gle
(
)
DIGEST OF CASES.
( 1292
REVIEW -centd.
SabApathi tr. Subiuva. Kernan and M. Ayyar,
JJ I. L. Rep. 9 Had. 68, 137B
S. C. under Act XX. of 1863.
13. After Appeal Brought— Effeet of.J
Where after appeal brought, the Court below
has passed a judgment in review in the same
case, which has been sent up and notified
to Her Majesty in Council, and put on record in
the appeal case, it is open to the Judicial Com-
mittee lo pass judgment on the appeal, with.
out prejudice to the subsequent judgment which
was passed on review. TocinriUN Singh v.
Pokhnarajn Singh... L. Rep. 1 I. A. 842,
1974.
S.C. under Act I. of 1846, §3l.
REVISION— Acquittal— Power oF High Court
as Court of — to interfere with Acquittal.
See Criminal Procedure Code, Act
X. of 1873, § 297. 1. 3. S. 6.
HABDEO...I. L. Rep. 1 AIL ;
AuKOKiAM...I. jl. Rep. a Mad.
88.
Empress n Miyaji I. L. Rep.
8 Bom. 160.
Empress v Dwarkanath.-.I. I.
Rep. 2 Cat. 399.
Acquittal without asking Assesors' Opinion
no. Ground for.
See Aaseato b.
Narain Das ..L L. Rep. 1 All.
310.
— — Of Acquittal— Right of Private Prosecutor
to apply for.
Naraik Das... I. L. Rep. 1 All.
610.
See Criminal Procedure Code, Act
X. of 1873, § 297. 1. 3. 9.
Hardeo.,.1 L. Rep. 1 AIL 139.
Aurokiam 1 L. Rep 2 Mad.
86.
And j« S'.- Kiios. Durga Prasad...
I. L, Rep. 2 All. 448.
REVISION-POWER OF HIGH COURT
AS A COURT OP-To Consider the
Case of a Convict who has not appealed,
when dealing with Appeals of his Co-
See Criminal Procedure Code, Act
X. 1872, § 297.8.
Empress p. Murli ..I. L. Rep 3
REVISION— POWER OF HIGH COURT
AS A COURT OF—eontd.
To Consider the Evidence.
Sn Criminal Procedure. Code, Act
X. of 1873, §297.1.4.8.
Hardko.-.I. L. Rep. 1 All. 139.
Empress^. Donnelly. .1. L. Rep.
3 Cal. 408.
Empress r. Muru...I. L. Rep. 3
AIL 336.
To Interfere with Magistrate's Discretion
as to Amount of Security to keep the
See Criminal Procedure Code, Act
X Of 1872, §§ £94 and 297.
Jvoout Chuhorr L L. Bep.
2 CaL 110.
To Quash Committal by Sessions judge.
See Jurisdiction. 16a.
Empress ». Lachman Singh.. I.
I,. Rep. 2 All. 398.
juittal, pending Appeal from Acquittal.
See Criminal Procedure Code, Act
X of 1B72, §897.3.
Reg. t- Gholam Ismail. ..L L.
Rep. 1 All. 1.
REVIVAL OF DEBT— Acknowledgment of
Judgment Debt hy Judgment Debtor.
See Limitation. 43. 44.
Rally Prosohno d. Heera Lal ..
L L. Rep. 2 CaL 468.
MltNGOL PRASHAD *. SttAMA KAN-
TO...I. L. Rep. 4 Cal. 708.
See Xiatbandi.
Hkera Lal e. Dkunput Singh...
I. L. Rep. 4 Cal. 600.
- Payment of Interest as such.
See Limitation. 46. 48. 47.
Vaija v. Vira I. L. Rep. 1
Mad. 238.
Tegarava t. Mariappa Ibid.
266.
lAMABHAI L L.
Rep. 8 Bom. 198.
DM**! by Google
DIGEST OF CASES.
( 1294 )
REVIVAL OF DEBT-™.*./.
Suit Barred by Act XIV. of 1859 not
vived by its Repeal.
Sec Hindu Law — Maintenance of
Widow. 6.
Krishna M. Bose 0. Okhilomi
J. L-Kep. 3Cal. 331.
See Limitation. IS. 16. 17.
Ram Chusder v. Ji
H1NEV...I. L. Rep. 4 Cal
283.
Nocoor Chunder p. Kai.lv Coo.
mar.-.LL. Bep.lCaL3S8.
Abdul Karim v. Manji...L L.
Rep. 1 Bom. 286-305.
REVIVAL OP PROSECUTION.
Sti Compounding Offences. S.
Reo. v. Diva 11 a... I, L. Rep. 1
Bom. 64
Discharge by Subordinate Magistrate —
Course to be pursued by District Magis-
trate.
See Criminal Procedure Code, Act
3L of 1878, S 808.1.
Dijahur Di/tt...I. L. Rep. 4
Cal. 847.
See Criminal Procedure Code, Act
X. of 1872, § 207. 1. 8. 6. 6.
1. Discharge of Accused Person— Art X.
of (87*. }f 21$, 295, 196, 297 ] Where a Can-
lonment Magistrate discharged, under § 215 of
Act X. of 1872, certain persons who were charged
before him. with causing hurt without hearing
the whole of the evidence for the prosecuti
and the District Magistrate, on an applicatioi
him by the complainant, directed the revival of
the proceedings, and ordered the Joint Magis-
trate to proceed afresh with the ease ; such
order was quashed, as being illegal and made
without jurisdiction.
The case came before the District Magis-
trate under { 295 of Act X. of 187a, and his
proper and only course was to proceed under
( 296 to report the ease for orders to the High
Court, which, under j 297, might have ordered
the accused persons to be tried, if of opinion
that they had been improperly discharged. In
the matter of the Petition of Moiiesh Mistree.
Mariby and Morris, JJ...X, L. Rep. 1 Cal.
288, 1876.
REVIVAL OF PKOSKCTTTION-™;.,.
3. Criminal Procedure Code, Act X. of
1S72, }f 195, 295, 296— Discharge of Accused-
Jurisdiction— Fresh Evidence.'] A Deputy Ma-
gistrate having discharged, underf 195 of the
Criminal Procedure Code (Act X. of 1872),
a person accused of an offence triable by a
Magistrate, but without examining a material
witness, because she was reputed of weak in-
tellect, the Magistrate of the District, on the
application of the complainant, took the evi-
dence of that witness, and committed the
accused [or trial before the Sessions Court.
Held, on reference to the High Court, that the
words " Sessions case" in f 296 of the Ciimin.il
Procedure Code (Act X. of 1872) mean a case
triable exclusively by the Court of Sessions, and
therefore that the action of the Magistrate could
not be supported under that section, but that
the Deputy Magistrate's order, discharging the
accused without examining a material witness on
the ground above stated, being bad, under the rule
laid down in Empress v. Donnelly (I. L. Rep. 2
Cal. 405-412), the District Magistrate was com-
petent to revive the proceedings, further evidence
being available, and the commitment was there-
fore sustainable. Empress v. Harrv Dayal
Karmokar, Mariby and Prinsep, J] I. L.
Rep. 4 Cal. 16, 1S78.
8. Act X. of 1872, § 215— Discharge of
Accused.] It is illegal and ultra vires on the part
of a Magistrate to revive before himself criminal
proceedings against an accused person who has
been discharged under § 215 of Act X. of 1872,
where no further evidence is procurable than
:hat which was before the Court on the first
Per Mariby, ] — When the discharge hasbeen
improper, the only proper course open to a
Magistrate is to report the case to the High
Court for orders, and the High Court will, if of
that the accused has been improperly
discharged, order a re-trial. Empress v. Don.
nelly. Mariby and Prinsep, JJ-..L L. Rep. 3
Cal- 408, 1B77.
S. C. under Evidence. 22, and Cri-
minal Procedure Code, Act
X. of 1872, {207.4.
4. Art X.of 1872, ff 44, 215,296— Dis-
ge of Accused— Revival of Prosecution at In-
ce of Sessions Court— Commitment.'] Certain
persons were charged under j 417 of the Penal
Code, and were discharged by the Magistrate
D,gltlzed by G00gle
( 1295 )
DIGEST OF CASES.
( 1290 )
REVIVAL OF PROSECUTION -™n id.
under j 215 of the Criminal Procedure Code, Act
X. of 1872. The Court of Sessions, considering
that the accused had been improperly discharg-
ed, forwarded the record to the Magistrate of the
District, suggesting to him to make over the
case to a Subordinate Magistrate, with direc-
tion!! to inquire into any offence other than the
offence in respect of which the accused persons
had been discharged, which the evidence on the
record showed to have been committed- The
Subordinate Magistrate, to whom the case was
made over, made an inquiry and committed the
accused for trial before [he Sessions Court on
charges under f j 363 and 420 of the Penal Code.
illegal, having been made in consequence of the
remarks of the Sessions Judge on the record of
the discharge of the accused, which amounted
to a " direction to commit" under ( 296 of the
Criminal Procedure Code ; and that, the case not
being a Sessions case, the judge had no juris-
diction to make such order : —
Held, that the order of the Sessions Judge
n the
i 296 of the Criminal Procedure Code, i.e., a
direction to send the discharged accused at
once to the Court of Session without further
inquiry. Whether Or not the investigation did
or did not take place in consequence of thi
Sessions Judge's remarks was Immaterial. The
Magistrate of the District, on consideration of
the facts appearing in the evidence, referred
the case, under § 44 of the Criminal Procedure
Code, to his subordinate, who had full power
hold the necessary inquiry, and if he considered
the case one that ought to be tried by the Ses-
sions Court, to commit the same. The inquiry
into the charges under ff 363 and 4*0 of the
Penal Code were, therefore, rightly held, and
the commitment could not be impeached. Em
press 0. Bhup Singh. Straight, J LL.
Rep 2 AIL B70, 1879.
8. Act X. of 1872, j 14a— Discharge
—Revival of Prosecution.-] f I42 of the Crimi-
nal Procedure Code (Act X. of 1872) does not
empower the Magistrate of the District to call
for the record of a case in which there has been
a discharge by a Subordinate Magistrate under
j 215 of that Code, and merely on the groui
that he differs from the conclusion arrived
by the Subordinate Magistrate on the evidence
to direct another Subordinate Magistral
make a fresh inquiry into the case.
RECTVAL OF PROSECUTION- <WJ.
The Magistrate of the District cannot order
fresh inquiry in cases where there has been
discharge under (215 by a Subordinate Magis-
rate in cases other than those specified in
i 296, i.e., in Sessions cases.
Where, therefore, the Magistrate of the
istrict, professing to act under J 142 of the
Criminal Procedure Code (Act X. of 1872),
sent for the record of a case in which a person
accused of an offence triable by a Magistrate
had been discharged under j 215 by a First
1 Magistrate, and referred the case for
fresh inquiry to another First Class Magistrate,
lio convicted the accused :—
Held, that the District Magistrate had no
power under } 14210 call for the proceedings,
order the re-trial of the accused, but that he
: be held to have acted under j 395, and
that under that section the proper and only
>e for him, if he considered the order of
discharge improper, was to refer the proceed-
ings to the High Court ; and the order of the
Sessions Court, reversing the conviction by the
Magistrate who re -tried the accused, was
therefore upheld. Impx. v. Gowda pa Venku-
gowda. MelvUl and Kemball, JJ...I. L. Rep.
S Bom. 584, 1878.
REVIVAL OF RIGHT OF APPEAL-
Compromist of Suit pending Appeal set aside on
Ground of Fraud."] Where a suit is compro-
mised pending an appeal, and the compromise
is afterwards set aside on the ground of fraud
and collusion, the effect is to remit both parties
to their original rights, and to revive the rights
of appeal. Ranee Khujuroonissa v. Musst.
Roushun Jehaji.-.L. Rep.3 L A. 291; I. L.
Rep. 2Cal. 184.
S. C. under Wahomede.il Law. 3.
REVIVAL OF TIME-BARRED DE-
CREE—Acknowledgment in Writing
by Judgment Debtor — Bond fide Applica-
See Limitation. 43. 44.
K.m.i. y Peosonno v. Heera La li.
I. L. Rep. 2 CaL 468.
Mungol Prasad », Sham a Kan-
TO...L L. Rep. 4 Cal. 70S,
See KUtbandi,
Heera [.all c. Dhunput Singh.
I. L. Rep. 4 CaL OOO.
D,gltlzed by G00gle
( 1297 )
DIGEST OF CASES.
REVOCATION OF AUTHORITY OF
ARBITRATORS.
See Suit for Land. 3.
KELLItC. I'"RASliR...I. L. Rep. 2
Cal. 445.
REVOCATION OF DIVORCE.
See Hahomedan Law— Divorce.
Hai
i Ali
[m-
Rep. 2 All. 71.
REVOCATION OF PROBATE.
See Probate. 3.
KoMOLLOCHUN NlJ.HUTTUN. ..I. L.
Rep. 4 Cal. 360.
REVOCATION OF WILL— Parol-by Hin-
dus.
See Act I. of 1869, § 28. CI. 4..
Maharajah Pertab Singh i>.
Maharanee Subkao...L.R9p.
4L A. 328 J 11. Rip. 3
Cal. 626.
in Lifetime of
See Indian Succession Act X of
I860, § 66.
Gabriel v. Mordakai.-.L L.
Rep. 1 Cal. 148.
RIGHT OF ACCUSED TO RECALL AND
CROSS-EXAMINE THE WIT-
NESSES FOR PROSECUTION.
See Practice — Criminal. 1,
Empress if. Bamieo Sahai ...I. L.
Rep. 2 All. 253.
RIGHT OF ALIENATION-Talookdar'a
—Act), of 1869.
See Ouclh Proclamation of 1868,
para. 8. 1.
HURPUKSHAD V. SKEO DVAL...L.
Rep. 3 1. A. 369.
RIGHT TO ASSESS RENT-FREE
LANDS.
Sir Resumption. 2.
Keval j. Talukdari Settle-
ment Officer... I. L. Rep.
1 Bom. 680.
RIGHT OF ASSIGNEE OF CO-SHA.
RERS IN AN UNDIVIDED
ESTATE.
See Uortgage. 9.
BVJNATH LALL if. RAMOODEEN
Chowdrv...L. Rep.l L A
106 ; S. C. SI W. Rep.
333.
j L Sef Partition by the Revenue Au-
thorities.
SHARATCHANDARD. HUHQOBINDO.
I. L Rep. 4 Cal. 510,
RIGHTS OF ASSIGNEE OF MORT-
GAGEE.
Sec Moi tgrge. 11.
Sahai Pandew. Sham Narain.
I. L. Rep. 3 All. 143.
RIGHT OF BANK TO REFUSE TO
REGISTER TRANSFER OF
SHARES.
See Presidency Banks Act XI. of
1870, §§ 17. 21.
Mothoormohun Rev r. Bank op
Bengal... I. L. Rep. 3 Cal.
390.
RIGHT TO CARRY 'J.' ABUTS ALONG A
PUBLIC ROAD— Suit to establish.
See Right to Sue. 1.
Saktu v. Ibrahiu.I. L. Rep.
2 Bom. 547.
RIGHT OF CHELA TO SUCCEED TO
GURU.
See Hindu Law— Inheritance— Sa-
Madho D/fs p. Kamt a Das ..I.
L. Rep. 1 All. 539.
RIGHTS OF COMMON.
See Inamdar. 3.
VlSHWANATH p. MAHABAJI...I. L
Rep. 3 Bom. 117.
RIGHT TO CONFIRM ELECTION OP
MOHUNT.
See Mohunt.
Rajah Muttu Ramaunga Setu-
. PkriaNAVACUM Pil-
ai L.Uep. 1 I. A.
309.
D.gmzed by G00gle
( 1209 )
DIGEST OF CASES.
( 1300 >
BIGHT OF CO-PARTNERS TO DIS-
SOLVE PARTNERSHIP
S<r Compensation for LoM of Com.
mission on Sales.
Cowasji v. Lallvbhai ..8 Bom.
H. C. Rop. O. 0. J. 209 ;
L L. Hep. 1 Bom- 463.
RIGHT OF COUNSEL— To be heard on re-
ference under § 206, Criminal Procedure
Code.
See Criminal Procedure Code, Act
XoflB72, | 390
Reg. v. Devama.,1. L. Rep. 1
Bom. 64.
BIGHT OF CREDITORS OF DECEASED
HINDU TO FOLLOW HIS ES-
TATE INTO THE HANDS OF A
PURCHASER FROM THE HEIR
OB DEVISEE.
See Limitation. 38a.
Greender Ciiundek Ghose v.
Mackintosh. ..I. L Rep. 4
Cal. 897.
BIGHT OF CREDITORS OF ALLEGED
HEIR OP TESTATOR TO OPPOSE
GRANT OF PROBATE.
See Probate, 6.
Desputtv Sinch...I. L. Rep. 3
RIGHT OF CREDITORS AND DISSEN-
TD3NT SHAREHOLDERS OF
COMPANY TRANSFERRING
ASSETS TO NEW COMPANY.
See Company— Winding up. 1.
In re The Fleming S. & W. Co.,
Limited... I. L.Bep. 3 Bom.
399.
RIGHTS OF EXECUTORS, DEVISEES,
AND LEGATEES.
Cal. 208.
BIGHT OF CREDITOR TO APPLY
FOB REVOCATION OF PRO-
BATE.
See Probate. 3.
KOMOLLUCHUN DuTT *. NlLRUT.
TiTNMuNot»...L L.Bep. 4
Cal. 360.
RIGHT OF CREDITORS OF DECEASED
MAHOMEDAN TO FOLLOW HIS
ESTATE INTO THE HANDS
OF A PUB0HASER FROM
THE HEIR.
See Mafcomedan Lav— Bight of
Creditors to follow Estate of
a Debtor into the bands of
a Purchaser from the Heir.
Bazayet Hossein «. Dooli
Chund...I. L. Rep. 4 Cal.
402 ; L. Bep. 5 L A. 211.
Sec Probate. 1,
Behakky v. Juggo ..I. L. Bep. 4
Call.
RIGHT TO FISH IN A PUBLIC
RIVER, INFRINGEMENT OF AN
EXCLUSIVE.
iVf Criminal Trespass. 3.
Empress u.Ciiarn Naviah.-.I. L.
Bep. 2 Cal. 364.
BIGHT OF FI8HEBT IN PUBLIC
NAVIGABLE RIVERS — Jalkar.] A
private right of fishery in tidal navigable rivers
must be derived from (he Crown, if it exists at
all, and must be established by very clear
evidence indeed, and the presumption would
be against any such private right.
Queere, whether Such a right can be created.
A mere recital in the quinquennial papers
which describe n person as owner of jaJkars in a
zemindary which was permanently settled with
ight of fishery in a public tidal navigable river.
That word may be perfectly satisfied by applying
to the right to fish in enclosed waters, such as
jheet. Prosunno Coomar Sircar t. Ram
Coomar Parooev. M/irHy and Prinsep, ]].. I.
L. Bep. 4 Cal. 58, 1878.
RIGHT OF FISHING IN THE SEA-
Fishing-Slalei.'\ Whether or not the sea and
ts subjacent soil, within the territorial limits
iround British India, be vested in the Crown, in
: he absence of any appropriation thereof, or of
the right of fishing in the former, by the Crown
ny particular individuals, the right of the
public lo fish therein is common, and not the
object of property. Such rights may in certain
»rtions of the sea be regulated by custom.
Qu/ere, whether the Crown could grant a pri.
ite fishery in such seas, or any part thereof.
D,„i„.db»Googlc
t ISM )
DIGEST OF CASES.
( 1302 )
SIGHT 07 FISHING IN THE SEA
Members of the public exercising such
tight of Rshing in the sea are bound to do si
fair and reasonable manner, and not so as t<
p«de others from doing the same i and any
duct of one party to another which prevent:
latter from a fair exercise of his equal right, and
causes injury to him, is actionable. Baban
Mavacha « Naou Shravucha. Westrapp, C.J-'
and N- Harridas,} L L. Rep. 2 Bom. 19,
1878.
RIGHT TO THE FLOW 07 WATER
THROUGH AH ARTIFICIAL
WATERCOURSE.
Set Artificial Watercourse.
Rameshuk Pbrshad r- Koonj
Bbhari...L. Rep. 6 I. A.
38 ; L. Rep. App. Oft, 121 ;
L L. Rep. 4 Oftl. 838.
5w E»«ment. 4.
Morgan v. Kirov. ..I. L. Rep. 8
Mad.
RIGHT TO FREE PASTURAGE- -Bombay
Act I- of 1865, § 33- Village Cattle.} Plaintiff
erected a hut on public ground in the village of
Veluk, in the district of Thana, and lived th<
annually during the monsoon, while his cattle
grazed on the public grazing -ground of the vil-
lage. He was not the owner or lessee of any
land in the village. On being prevented by the
Collector of Thana from thus grazing his caitle|
the plaintiff brought a suit against that officer for
a declaration of his right to graze his cattle i
the limits not only of that, but of any othi
village in the district of Thana.
Held, that the plaintiff was not entitled to
any such right. The term " village cattle" in
g 32 of Bombay Act I. of 1865 does not include
the cattle of any or every roving grazier who
may choose to squat for a few months on the
public grounds of a village, and to allow his
cattle to prey on lands set apart for the villagers.
And the Act does not vest the right of sanction-
ing such a diversion of the village grazing-
grounds in the villagers themselves, but in the
Revenue Commissioner, whose consent must be
obtained. Thb Collector of Thana v. Bal
Patil. Westtopp, C J., and N. Harridat, J...
I. L. Rep. 8 Bom. 110, 1877.
RIGHT 07 GOVERNMENT TO NOMI-
NATE A SUCCESSOR TO AH
IMPARTIBLE ZEMINDARY70R
WHICH HO PERMANENT SUN-
HUD HAS BEEN ISSUED.
Set Succession to Impartible Zo.
mindftry fbr which no Per*
m&nent Bunnud has been
issued.
Sbi Raghuhada v. Sri Brozo
K1SHOR0...L. Rep. 8 I- A
164.
RIGHT TO GRAZE CATTLE ON PUB-
LIC GRAZING GROUND 07 VIL-
LAGE- Suit for Declaration of.
See Right to Free Pasturage.
Collector or Thana v. Bal Pa.
TIL...X. L. Rep. 3 Bom. 110.
RIGHT 07 HINDU FATHER TO
CUSTODY 07 JOT ANT DAUGH-
TER—Loss of Caste does not affect the.
Set Lees of Cftsto.
Kanahi Rah 1. Biddy a Ram...
. t L. Rep. 1 Ail. MS.
RIGHT OF HINDU WIDOW TO EN-
FORCE PARTITION.
Set Hindu Law— Partition. 8.
Sol) DAMON EY f.JOOKSII ChUNDER.
L L. Rep. 8 Cnl 808.
RIGHT 07 HINDU WIDOW TO PRE.
EHPTIOH.
Set Pre-emption. 9.
Phulman Rai «. Dani Kuari ...
t. L. Rep. 1 All. 458.
RIGHT 07 HINDU WIDOW TO RE-
SIDE IN FAMILY HOUSE.
See Hindu Law— Widow's Right
of Residence in Family
House.
Gauri v. Chandramoni ..I. L.
Rep. 1 All. sea.
RIGHT 07 HINDU WIDOW TO SUE
TO BET ASIDE AN ADOPTION
BY HER DAUGHTER-IN-LAW.
See- Right to Sue. 8.
"j A MOON A DASSYA v. BaHASOON-
HERA! DA5SYA...L. Rop. 3 I.
A. 72; I. L.Rep. lCftl.
389.
Diarized by Google
( 1308 )
DIGEST OF CASES.
( 1804 )
BIGHT OF INAHDAR TO ENCLOSE
LAND.
See Inamdar. 2,
VlSHVAKATH V. MaHADAII... I. L.
Rep. a Bom. 147.
RIGHT OF IN AHDAR TO ENHANCE
BENT.
See Miras. 2.
VlSHNUBHAT «. BaBA]I...I. L.
Bop. 3 Bom. 846, o.
See Enhancement of Rent. 5.
Pabsotam v- Kalyan Rayji I.
L. Bep. 3 Bom. 348.
BIGHT OF JTJDQMENT-DEBTOR TO
DISCHARGE FROM MFRISON-
KENT.
See Civil Procedure Code, Act X,
of 1877, §342.
Rattansi Kaluakji...X. L. Bop.
3 Bom. 148.
BIGHT OF KABNAVAN TO REVOKE
AUTHORITY TO ANANDBA-
VAN TO MANAGE TARWAD
FBOFERTT.
See Malabar Law. 3.
Govinoan v. Lannaran... X. L.
Bep. 1 Had. 361.
BIGHT TO LEVY ASSESSMENT ON
BENT-FREE LANDS.
See Resumption, 2.
Keval v- Talukdareb Settle-
hent Officer. ..I. L. Bep.
1 Bom. 580.
See Ghatwftli Tenure.
Leblanund Singh Baiiadoos ».
ThAKOOR MUHRUNJUH SlNGH.
I. L. Bep. 3 Cal. 261.
BIGHT OF MAHOMEDAN WIDOW
TO THE RETURN.
See Xahomedan Law— Inherit-
ance—Return.
Mahomed Aeshad Chowdkry v.
Sajida Banco... I. L. Rep.
3 Cal. 703.
BIGHT OF MANAGEMENT OF A
PAGODA— ALIENATION OF.
See Alienation of the Right of
Management of a Pagoda.
Rajah Kurmah Vaua j>. Ravi
. Kurhah Mutha... L. Bep.
4 I. A. 70.
BIGHT OF HTRA8DAB TO HOLD AT
FIXED BENT.
See Kiraa. 2.
B aba j i v. Narayan ...I. It. Bep.
3 Bom. 340.
VlSHNUBHAT «. Babaji Ibid.
846,0.
See Enhancement of Bent. 0.
Parsotah «. Kaltan Ravji ..L
L. Bep. 8 Bom. 348,
BIGHTS OF aTTRASDARS— Patta— Waste
Lands — Landlord and Tenant — Occvpaniy—
Proprietary Right— Yearly Tenant.] The plain-
"ffs, village mirasdars, sued 101873, to eject
the defendants, in possession of the village
•- lands, and to obtain a patta (or the same.
It appeared that several applications had been
made on different occasions, beginning in iSjo,
by strangers for permission to cultivate the
waste lands belonging to the village, and, on
each occasion, the mirasdars, including the
plaintiffs, intervened, and on promising to
cultivate and pay hist themselves, got the appli-
:ations of the strangers refused, and patios
were made out in the names of the mirasdars
in i860 and 186566 and 1866-67. They, how-
ever, neither cultivated nor paid kist for the
lands, and subsequent to 1867 the lands were
'Id by auction for arrears of kist, and purchas-
ed by the plaintiffs. The Collector, however,
refused to accept them as patta -holders, cancel-
led their patios, and issued a fresh patta to (be
defendant, and made over the lands to him.
The Munsiff dismissed the suit, holding (hat
the plaintiff's conduct was in fraud of the
me, and that the revenue authorities were
justified in acting as tbey had done. The
ict Judge, on appeal, reversed this decision
on the authority of Rajagopala Ayyanagar 1.
Collector of Chingleput (7 Mad. H. C. Rep. 98).
The plaintiffs did not sue to recover mirasi
rights or privileges, basing their suit on that
title, but their complaint was that the pottos
granted to them had been cancelled, and the
lands unlawfully transferred to the defendants
without the ratinama of the plaintiffs, and they
relied on the former transactions between the
revenue officials and themselves as creating in
themselves and the other mirasdars a right of a
permanent nature which could not be deter-
mined arbitrarily, and which still subsisted : —
Held by Morgan, C.J., and Hollomay, J.— That
the case of Rajagopala Ayyangar v. Collector of
Chingelput (7 Mad. II. C. Rep. 98) was distill-
Digitized byGOO^Ie
( 130G )
DIGEST OF CASES.
< isoe )
BIGHTS OF MIRABDABS-™^.
guishable From the present. In that case it was
decided that the revenue authorities could not
deprive the mircadar of his land and grant it to
another merely because the miratdar omits for
a time to cultivate and makes default in payment
of the assessment. Government officers have
not authority unreservedly to dispose of such
lands. Both in the case of the mirasdar and of
the hereditary ryot, the option of cultivating
should be allowed to the "ancient occupant" be-
fore possession is given temporarily to a stranger*
In Rajagopala Ayyangar v. Collector of Chin-
gleput (ubi supra), the mirasdar had been sum-
marily ejected from his cultivated fields, whichl
as the facts were viewed, he had not relinquished
but only allowed to lie fallow. In the present
case, when the lands were settled with theplai
tiffs they still continued to be immemorial was1
for the settlement of which the Collector
authorized in the interests of the State to make
engagements, and to dispose of such lands,
under certain restrictions, to persons applying to
cultivate them. The ntirasdars have the prior
right to the engagement, but they have no inter-
ests therein which can be said to be at their own
disposal, otherwise than as incidental to their
cultivated lands. Waste and uncultivated lands,
such as were the subject of the present litiga-
tion, were, by Madras Regulations of 1802 and
Madras Act VIII. of 1865, expressed to be at the
landholder's disposal, and no occupancy rights
arose as between landholder and ryot from the
cultivation of such lands, nor simply from the
grant of a patla, without reference to other cir-
cumstances evidencing the right.
In land belonging to the State the ordinary
patladar acquires by the patla alone no higher
interest than he derives from a private proprie-
tor whose land he undertakes to cultivate.
There was nothing in the engagements with
the plaintiff? to indicate that any permanent
right or interest in the land was intended to be
Created or conveyed, or was recognized as exist-
ing. The settlement with them was in form an
annual settlement, and on the face of the trans,
action there was nothing that could be regarded
as amounting to the creation or recognition of a
permanent right in the plaintiffs, such as could
be terminated only in the manner indicated by
Rajagopala Ayyangar v. Collector of Chingleput
{ubi supra). It was apparent that the plaintiffs
had.no intention to cultivate the land or (except
011 legal compulsion) to pay the assessment,
EIGHTS OF KUtABDABS- ■contd.
and therefore, under such circumstances, the
revenue authorities were justified in the course
they bad pursued.
Per Holloaay, J — The lands were held from
year to year, and as the tenants had the right of
terminating the tenancy at the end of any Fasli,
the landlords, the Government, had an equal
right to do so. The Darkhast rules of the
Revenue Board did not constitute rights enforce-
able at law. Even supposing that the plain-
tiffs had a right in 1869 to be admitted a*
tenants, and that they were wrongfully dispos-
sessed, their only action would be against the
Government for such wrongful dispossession,
and the relief now sought was quite incommen-
surate with the injury.
Held by Innes, J.— That the plaintiffs being
purchasers at a Government sale, the revenue
authorities were bound by the express terms of
the law to recognize them as the patla -holders,
and to allow them to retain their holdings until
evicted by due course of law for non-payment
of revenue ; they were occupiers of the land, and
could not be ejected except for the reasons and
by the process prescribed by Madras Act II. of
1864, and not having been lawfully ejected, they
were still rightful holders, and twelve years not
having elapsed since the date their ejectment
could claim to be restored.
There is no sufficient ground for the assump-
tion of any such relation as that of landlord and
tenant between the ryot and Government, or of
the rights of the ordinary ryot patladar in the
soil being limited to a tenancy from year to
year. The tenancy of an ordinary patladar
entitles the holder to the right of occupancy so
long as he pays what is due, and until after
default he is evicted by the process provided by
law. Fakir Muhimad d. Tibuhala Chariar.
I. L. Bep. 1 Mad. SOD, 1870, F. B.
Note.— Morgan, C.J., says (p. 230) that the rule
that ryots, so long as they continue to pay the
Government revenue, could not be dispossessed,
refers only to the old resident ryots who have an
hereditary possession.
BIGHT OF MORTGAGEE PBIOB TO
THE CONFISCATION OF OUDH
ESTATES TO 8TJB - SETTLE-
MENT.
See Act I. of I860. 4.
Gouri Shunkurv. Maharajah of
BuLRAMPORR.-.Zi, Bep. 6 I.
A,1;IL. Bep. 4 Cal 889.
Diaxized by Google
( 1807 )
DIGEST OF CASES
BIGHT OF MORTGAGEE TO PRE-
VENT SALE 07 MORTGAGED
PROPERTY FOR ARREARS OF
ZEMIND ARI RENT.
See Co Sharer* of Putni Taluk.
Mohkbh Chunder v. Ram Pro-
soho I. It, Rep. 4 0»L
689.
RIGHT OF MORTGAGOR OF FRO.
FRIETART RIGHTS IN A MA-
HAL, OK BALE TO THE MORT-
GAGEES, TO HOLD BLR LANDS.
See Act XVIII. of 1878, | 7.
Bakhat Ram v. Wazir ALIm.X.
L. Rap. 1 AIL 448.
RIGHT OF MORTGAGOR TO REDEEM
BTRT TENURES WITHIN THE
TALUK PURCHASED BT THE
MORTGAGEE.
See Mortgagee. IS.
Rajah Kishkndatt v. Rajah
Mumtaz Au...L. Rep. 6 L
A. 148.
RIGHT OF MOTHER TO SHARE ON
PARTITION BETWEEN SONS
AFTER FATHER'S DEATH.
See Parties to Suit. 8.
Tokit Bhoosunv. Taraprosono.
L L. Rop. 4 Cal. 7G8.
Set Hindu Law -Partition. 4.
Juomohun v. Saradamoybs...L
L. Rep. 8 CaL 149.
RIGHT OF OCCUPANCY - Extinguish-
ment of.
See Extinguishment of Right of
Occupancy.
— ~ Inheritance to.
.Si-* Act XVXTt of 1873, § 9. 2.
Bhagwanti r- Rudk Man Tiwa-
RI...I. L. R»p. 8 All 1415.
In Jalkar.
See infra. 8.
&vJalkar.
] U OUOBU NDBOO v. PrOMOTKO.
nath I. L. Rep 4 Oal.
767.
■ Of Pattadar Ryot.
See Right* of Miraedari.
Fakir Muhamad ». Tibumala
Chariar I. L. Rap. 1
Mad. 906.
RIGHT OF OCCUPANCY- contd.
Id Sir Land — Ex- Proprietary Tenant —
Mortgage.
See Act XVHT. of 1878, § 7. 1.
Bakhat Ram v. Wazir Au.l
L. Sep. 1 AIL 448.
Submergence of Land — Extinguishment
of Right of Occupancy by Non-Payment
of Rent.
See Extinguiahment of Right of
Occupancy.
IlBM HATH DUTT O. ASHRtIR SlW.
DAB...L L.Rep.4 CaLB84.
1. — Title by Possession— Btng. Act VIII,
of 1869.J A ryot occupying and coltivating
land for more than twelve years undet one who
is not the rightful landlord, acquires a right of
occupancy. It is a right which, by virtue of the
law. grows up in the ryot from the mere cir-
cumstance of cultivating land for twelve years
iwards, and paying rent due thereon ; and
it a right conferred by any lessor. Syud
rrHosstin v. Sheo Suhae (10W. Rep- 338)
followed. Zooltun Bibeei . Radhica Prosokho
H UNDER. Jackson and Kennedy, Jj I. L,
Rep. 8 Oal. 660 ; 1 Cal. Rep. 888, 1878.
3. Right of Occupancy Tenant— When
transferable— Act XVIII. 0/1873,!* 8,9, 171—
Sale in Execution.'] Held by a majority of the
Full Bench, that the rights of occupancy tenants
other than tenants at fixed rates are not transfer-
able by auction sale in execution of decrees to
strangers, but can only be sold to persons who
have become by inheritance co-sharers in such
Held by Stuart, C.J.— That such rights are
inferable by sale by public action In execution
of decrees of the Civil Courts, without restric-
The right to enforce a legal process
against property cannot, under any circumstan-
ces, be taken away except by express words.
Ablaxh Rai *. Udit Naraih Rai...I. L. Rap.
1 AH. 853, 1877.
See 4, infra-
8. AH X. of 1859— Act VIII. of 1869
{Bengal)— \)3.n~Rigkt to Renemal.M\ By the
terms of an ijara dated in 186J, the defendants
were entitled at the end of a term of five yean
to a renewal of the lease of the dv land in
dispute, at a rent to be fixed according to the
measurement of the land to be made at thai
time, and to the productive power* of the land.
Digitized byGOO^Ie
( 1800 )
DIGEST OF CASES.
BIGHT OF OOCTJPANCY-ronM.
The defendants at the expiration of the lease
continued in possession. Nothing was done
with regard to assessing the rent for the new
lease foi three years afterwards, but the defend-
ants remained in possession, and continued to
pay the' old rent into Court, the plaintiff having
refused to accept it. The plaintiff then served
notice on the defendants to come to a new settle,
ment with' her, and, in 1874, sued to recover
possession. The defendants claimed a right of
occupancy under Bengal Act VII 1. of 1869, or
under Act X. of 1869 !—
Htid, that the defendants' holding as ijardars
prior to and during the lease of 1865 did not
create in them a right of occupancy, and that
after the expiration of the lease of 1865
they held over, subject to the terms of that
lease ; and that the plaintiff had a right to turn
the defendants out of possession at the expiration
of the lease, except so far as that right was qua-
lified by the stipulation for a renewal ; that the
defendants at the expiration of that lease had an
equitable right to renewal fora period not ex-
ceeding 6ve years, according to the stipulations
In the agreement ; but that it was too late to
rely upon their title to a renewal, which if it
had been granted would now have expired.
Jardine, Skinner & Co.*. Rani Surut Soon-
dam Dkbi L. Rep. SLA. 164;
3 Cal. Sep. 140, 1878.
4. Not Transferable — Bengal Act
VIII. of 1869, § 6.] In the absence of clear,
well-defined custom to that effect, the right of
occupancy acquired by a cultivating ryot under
\ 6 of Bengal Act VIII. of 1S69 cannot be trans-
ferred, either by voluntary sale or gift, or by sale
in execution of a decree. Dwarka Nath Mis-
■sr it. Harrish Chundeh. Jackson and Mc-
Donnell, JJ....I. L. Rep, 4 Cal. 925; 4 Cal.
Hep. 180, 1878.
See 2, supra.
Set Act XVXXI. Of 1878, $9.1.
Uhrao Began *. Land Mort-
gage Bank...Z. L. Rep. 1
All 647; I. L Rep. S All.
451.
6. — — How and by rehooi may be acquired.]
A firm of capitalists tailing a lease of lands
from a zemindar, and transferring their rights
the changing members of the firm, cannot by
any length of occupation acquire occupancy
RIGHT OF OCOTJPANCY-^nM.
rights under $ 6 of Act X. of 1859 of Bengal
Act VIM. of 1869.
Canam v. Kylash Ckunder Roy Chtradhry (15
W. Rep. 117) approved and followed. Rai
Komal Dosser v. Laidlry. Jackson andflfr-
Donnett,\] L I* Rep. 4 CaL
057, 1870.
8. Jallcar — Suit for Possession by One
of Several Proprietors.] The owners of a thir-
teen-anna share in ajaliar sued to eject a lessee
on his refusal to pay an enhanced rent : —
Held, that although the lessee of a jaliar
cannot acquire rights of occupancy, he cannot
be ejected by a suit brought by one only of
several proprietors. A lease granted by all the
proprietors cannot be varied or terminated at
the suit of one. Bollye Satke v. Akrak Ally.
Birch and Hitter, JJ...I. L. Rep. 4 Cal. 961,
1879.
See JaLkar.
JUGGOBUNDHOO SHAHA v. PrOKO-
thonath Roy... I. L. Rep. 4
Cal. 787.
RIGHT OF OCCUPANCY TENANT-
Sale of — in Execution of Decree of Land
See Act XVIII. of 1878, $ 9.
Uhrao Beg am v Land Mortgage
Bank... I. L. Rep. 1 AIL
547; I. L. Rep. 9 All. 461.
See Right of Occupancy. 9. 4.
RIGHT OF OFFICIAL ASSIGNEE ON
SALE OF LAND FOR ARREARS
OF TIRVAI (RENT).
See Insolvency. 9.
ChinnaS. Mudaliv. Kandasvahi
REDDI...I. L. Rep. 1 Had. BO.
RIGHT TO OFFICIATE AS AN I
D1TARY OFFICER— Suit for Decla-
ration of.
See Declaratory Decree. 17. 18.
Chinto Abaji Kulkarni v. Laksh.
mibai I. L. Rep. 2 Bora.
875.
Khando Narayan Kulkarni v.
Amaji Sadashiv Kulkarni...
I. L. Rep. 3 Bom. 370.
Diarized by Google
DIGEST OF CASES.
( l«t )
BIOHT TO OFFICIATE AS SOLE RB-
PBS8KNTATIVX OF A WAT AN-
DAB. FAMILY Suit for a Declaration
of.
See Declaratory Decree. IB.
Khando Narayan Kulkarni «.
Apfaji Sadashiv Kulkarni...
I. L. Rep. 2 Bom. 370.
BIOHT OF PARDANABHIN WOMAN
TO BE THr*imyRT> ON COMMI8-
BIOK.
See Pardatiaahin Female. 1
Hurro Soondkrv...L Xi. Rep. 4
0*4,80.
RIGHT TO PARTITION WHEN
THERE HAS BEEN- NONE FOB
SIX OR SEVEN GENERATIONS.
See Hindu Law— Partition. 6.
TkakurDukriaoSinqhv.Thaku:
Davi Singh L. Rep. 1
111,
BIOHT OF PERPETUAL CULTIVA-
TION.
See Mirae. 1.
Babaji v. Narayan. ,.L L. Rep.
3 Bom. 340.
RIGHT TO PERFORM RELIGIOUS
SERVICES— Jurisdiction of Coi
detenu inc.
Set Dues for Religion* Services
performed.
Tiru Krishna ha ». Krishna-
swahi L. Rep. 61. A.
180.
RIGHT OF PRIVATE PROSECUTOR
TO APPLT FOR REVISION OF
AH ACQUITTAL.
OF EX-PROPRIETARY TE-
NANT IN A MAHAL TO HOLD
SXR LANDS ON A MORTOAOE
OF PROPRIETARY RIGHTS
FOLLOWED BY SALE.
See Act XVHX of 1878, 5 7.
Bakhat Rah v. Wazir Au...I. L.
Rep. 1 AIL 448.
RIGHT OF A PURCHASER FROM A
DEFENDANT, AFFER DECREE
AGAINST THE LATTER, TO
CARRY ON A SPECIAL AP-
PEAL ON DEATH OF DEFEND-
ANT.
See Abatement of Appeal— Civil.
MORESHVAR V. KUSHABA I. L.
Rep. 3 Bom. 848.
RIGHT OF PURCHASER OF MONEY
DECREE ON MORTGAGE. ,
See Mortgage. 40.
And see Sale in Execution ofDecree.
4.9.
RIGHT OFFURCHABER AT REVENUE
BALE TO ENHANCE, RENT.
See Enhancement of Rent. 1.
PuKMANUND tr. ROOKINEE. . .1. L.
Rep. 4 CaL 793.
BIOHT OF PURCHASER AT REVE-
NUE SALE FOR ARREARS OF
RENT TO RECOVER PURCHASE
MONEY, ON SALE BEING SET
ASIDE.
Hardeo.,.1. L. Rep. 1 AIL 139,
Aukokiak.,.1. L. Rep. 8 Mad.
88.
Narain Das... I. L. Rep. 1 AIL
610.
Suk.HO tr. DUROA Prasad... I. L.
Rep. 8 All. 448.
Srerenakain Bagckbr v. Smith.
L L. Rep. 4 Cal. 607.
See Sale in Execution of Decree.
17.
Ram Thull Sing v. Bisbswar
Lall Sakoo L. Rep. 3
X. A. 131.
RIGHT OF PURCHASER AT SALE
IN EXECUTION OF DECREE
ON SPECIALLY REGISTERED
MORTGAGE BOND.
Set Sale in Execution of Decree 0.
Akhb Rah p. Nand Kishork...
L L. Rep. 1 AIL 386.
D,gltlzed by G00gle
< 1313 )
DIGEST OF CASES.
< IW )
RIGHT 07 PURCHASER AT SALS IN
EXECUTION OF SIMPLE MO.
NET DECREE OBTAINED ON
MOKTGAGE BOND.
See Sale in Execution of Decree.
4.0.
Khub Chand v. Kalian Dasb... I
L. Sep. 1 AIL 240.
BalwantSinghv. Go k a ban Pra-
sad .....Ibid. 433.
See Mortgage. 40.
Ganpat Rai v- Sarupi..X L.
Hop. 1 All. 446.
BIGHT OF PURCHASER AT SALE IN
EXECUTION OF MONEYDE-
CBEE OBTAINED BY MORT-
GAGEE UNCONNECTED WITH
HIS MORTGAGE.
See Mortgage. 3.
TUKARAM IF. RA II CHANDRA ..I. L.
Rep. 1 Bom. 314.
See Sheriff's Sale. 3.
Bhuggobutty Dosses w. Shama-
churn Bose I. L. Rep. 1
CaL 337.
RIGHT OF PURCHASER. AT SALE
IN EXEOUTION OF DECREE TO
APPLY FOR POSSESSION — Ac-
crues on Date of Certificate, not of confir-
mation of Sale.
See Limitation. 06,
Basapa v. Marya ..I. L.Rep. 8
Bom. 483.
RIGHT OF PURCHASER AT SALE IN
EXECUTIONOF DECREE UNDER
ACT nm OF 1838 TO RECOVER
PURCHASE -MONEY ON EVIC-
TION.
See Civil Procedure Code, Act X.
of 1877, S SIB.
Mulo....I. L. Rap. 8 All. 288.
RIGHT OF PURCHASER AT BALE IN
EXECUTION OF DECREE TO RE-
COVER PURCHASE-MONEY ON
. SALE BEING SET ASIDE.
See Bale in Execution of Decree.
13. 16. SI.
Makundi Lal v. Kauns,la...I. L.
Rep. 1 All. 568.
Court op Wards v. Gava Persao.
I. L. Rep. 8 AIL 107.
Basappa t. Duhoava...L L. Rep.
a Bom. 540.
BIGHT OF PURCHASER AT BALK
IN EXECUTION OF DECREE TO
RECOVER PURCHASE-MONET
ON SALE BEING. SET ASIDE—
(MM,
See Sheriff1* Bale. 1. S. 4.
Dorab Ali Khan v. Khajah
MOHKEO0DEEN...I. L. Rep.
1 CaL 55 ;I. L.Rep. 3
CaL 800 ; L. Rep. 0
I. A. 116.
Fkamji v. Hokmasji...!. L. Rep.
8 Bom. 858.
BIGHT OF PURCHASER OF FAMILY
PROPERTY AT SALE IN EXE-
CUTION OF PERSONAL DECREE
AGAINST FATHER.
See Sale in Execution of Decree.
10. 16.
VENKATTASASrl NaIK v. KUPPAI-
VAN.I_L.Rep.lMad.R54.
Vbnkattakaiiayyah a. Venkata.
subbramania Ibid, 368.
RIGHT OF PURCHASER AT SALE IN
EXECUTION OF PERSONAL
DECREE AGAINST A HINDU
WIDOW.
Daijun Doobey v. Brij Bhookun.
L. Rep. 2 I. A. 276 ; I. L.
Rep. 1 CaL 188.
See Sale in Execution of Decree. 19.
Alukuoner v. Banee M. Chuc-
KERBUTTY...L L. Bep. 4 Cal.
677.
RIGHT OF PURCHASER AT SALE IN
EXECUTION OF DECREE ON A
MORTGAGE.
See Emblements.
Land Mortgage Bank v. Vishnu.
I. L. Bep, S Bom. 870,
See Mortgage. 6.
Muthora Nath b. Chunder-
KONEY...I L. Rep. 4 CaL 817.
Set Mortgage. I.
Shringafuk v. Pethb.-.I. L.
Bep. 3 Bom. 669.
D.gmzed by GoOgle
( 1816 )
DIGEST OF CASES.
( WW )
RIGHT OF PURCHASER AT BALE
IN EXECUTION OF DECREE
AGAINST REPRESENTATIVE
OF DECEASED MAHOMED AN.
Sn Bale in Execution of Decree.
30.
Hendry- v. Muttv Lall Dhui
I. L. Rep. 2 CaL 386.
RIGHT OF PURCHASER AT BALE IN
EXECUTION OF DECREE OF
SHARE OF MEMBER OF UN-
DIVIDED HINDU FAMILY.
See the Index heading Alienation of
Ance*tral Property — by
Bale in Execution of Decree
against a Member of an
Undivided Family.
BIGHT OF PURCHASER FROM NEXT
OP KIN OF DECEASED TO
APPLY FOR REVOCATION OF
PROBATE.
Set Probate. 3.
KOWOl.LOCHURNf. NlLRUTTtlH...L
L. Rftp. 4 Cal. 800.
RIGHT OF PURCHASER PRIOR TO
DECREE FOR EJECTMENT IN
RENT-SUIT, TO QUESTION DE.
OBEE BY BUTT, IF HOT PARTY
TO RENT -SUIT.
See Rent-Suit.
Madho Pros hah d V. Pl'KSHAN
Rah LL.Rep.4Cal.
630.
RIGHT OF PURCHASER AT BALE BY
SHERIFF UNDER WRIT OF
FIERI FACIAS, TO RECOVER
PURCHASE-MONEY, ON EVIC-
TION ON BALE BEING DECLAR
ED VOID.
Sra Sheriff's Bale. 1. 2. 4.
Dorab Ally Khan v. Khajah
MOHEEOODDEEN...I. L. Rop.
1 Cat 55; L L. Rep. 8 Cal.
808; L. Rep. 6 1. A. 116.
FramjI r. Horhasji.I. L. Rep.
S Bom. 368.
RIGHT OF PURCHASER OF SHARE
' IN ANCESTRAL PROPERTY OF
UNDIVIDED MEMBER OP UN
DIVIDED HINDU FAMILY AT
EXECUTION SALE, TO EN-
FORCE PARTITION.
Set Hindu Law— Undivided Fa-
mily. 8.
Dkehdaval v. Jugdeep N. Singh.
L. Rep. 4 X. A. 347 ; I. L.
Rep. 8 Cal. 196.
RIGHT TO RECOVER GOVERNMENT
REVENUE PAID DURING WRONG-
FUL POSSESSION— Stt-og— Voluntary Pay
ments."] The plaintiff purchased certain proper'
ty at an execution sale and obtained possession
The defendant had purchased the same
property at a prior execution sale, and recovered
possession thereof from the plaintiff.
it by the plaintiff to recover from the
defendant sums paid by him during his posses-
sion for Government revenue! —
Held, that the plaintiff, though he might hare
supposed that he was the lawful owner of the pro.
i really in the eye of the law a trespas-
rrong-doer in holding possession of it
against the defendant, and that whatever sums
he might have paid in respect of it while thus in
DSscssion were paid in his own wrong. He had
o right, legally or equitably, to intermeddle
ith the property at all ; and it is not because
payments which he may have made enured to the
benefit of the rightful owner, that the latter was
mnd to recoup him for those payments.
If A. pays fl.'s debts, .supposing he has
authority to do so, but in fact having no such
thority, he cannot recover the amount against
B.\ and if A. innocently obtains possession of
S.'s horse, and wrongfully holds possession of it,
believing that he has a right to do so, he cannot
claim from B. the price of food or medicine which
he may have supplied to the horse, though the
horse would have died without such food or me-
dicine, and B. alone may have benefited by A.'x
ixpenditure.
The right which a defendant has, who w sued
for mesne profits, to deduct any necessary pay.
nents which he may have made from the
imount of his receipts, depends upon the prin-
ciple that in a suit for mesne profits, the plain-
iff is only entitled to recover the actual loss
sustained by being kepi out of possession ; and.
therefore, in ascertaining such loss, it is right to
take into consideration the receipts on the one
DiomLab, Google
( 1817 >
DIGEST OF CASES.
BIGHT TO RECOVER GOVERNMENT
REVENUE PALO DURING
WRONGFUL POSSESSION- -contd,
hand, and the necessary payments on the other.
But it does not follow from this that if a man
has wrongfully taken possession of property
and held it adversely to the true owner, and has
been a loser in consequence, he has a right to
recoup himself for his losses as against the true
owner. He must be content in such case to
bear the burthen of his own wrong. Tiluck
Chand«. Soudamini Dasi. Garth, C-J., and
Tottenham,] I. L. Rep. 4 Cal.
666; SCal. Rep. 466,
1878.
See Co-Shavers of Fatni Taluk
Mciil's CHi'NnER Rannkujefp.
Ram Pursono Chowdhry.
I. L. Rep. 4 Cal. 039.
See Sals in Execution of Decree. 17.
Ram Tiluk Singh v. Bisseswar
Lall Sahoo...L. Rep. a I.
A. 131.
See Setting aside Sale of Superior
Tenure— Effect of.
Sreenarain Bacchbe v. Smith.
LL. Rep. 4 Cal. 807.
RIGHT TO RECOVER PURCHASE
MONET ON THE SETTING
ASIDE OF A SALE IN EXECU-
TION OF A DECREE.
See Sale in Execution of Decree. 13.
21.
Makuhdi Lal v. Kaunsila ,1
L. Rep. 1 AIL 568.
Basappa c. Dundava...I. L. Rep.
2 Bom. S40.
Set Sheriff's Sale. 1. 3. 4.
Dorab Ali.v Khan p. Khajah
Moheeoodeek...L L. Rep.
1 Ca). 96 ; I. L. Rep.
3 Cal. 806 ; L. Rep.
OLA. 116.
Fhamjt v. Hormasji.-L L. Rep.
2 Rom. 268.
RIGHT TO RECOVER PURCHASE
MONEY ON EVICTION OF PUR-
CHASER AT BALE IN EXECU-
TION UNDER ACT VIII. OF 1869.
See Civil Procedure Code, Act X.
of 1877, § 315.
MULO...Z. L. Rap. 2 All. 299.
RIGHT TO REDEEM.
See Mortgage.
Acknowledgment of.
See the Cases under Acknowledg-
ment of Mortgagor's Title.
Limitation to-Adverse Possession by
Mortgagee in Possession.
Set Mortgage. 37.
Alli Muhammad v. Lalta Bukhsh.
L L. Rep. 1 AH. 665.
Onus Probandi of.
See Onus Probandi. 6.
Ratan Kuar v. Jiwan Singh...
L L. Sep. 1 All. 184.
RIGHT OF RENEWAL OF LEASE-
Chttr Land.
See Right of Occupancy. 3.
JARDINE, SKIHNEB & Co. V. RANI
SOOK AT SOONDARI DEBI...L.
Rep. 8 LA. 181.
RIGHT OF REPRESENTATIVE OF
DECEASED JUDGMENT CRE-
DITOR TO CONTINUE EXECU-
TION PROCEEDINGS COM-
MENCED BY HTM, LIMITA-
TION TO.
See Limitation. 95.
GUI.ABDASr. Lakshman Narhar.
I. L. Rep. 3 Bom. 231.
RIGHT TO RESCIND CONTRACT.
j See Contract. 0.
SoOLTAN ClIUND V. ScHILLER...
I. Ik Rep. 4 Cal. 263.
RIGHT TO RESCIND CONTRACT FOR
SALE OF GOODS, ON ACCOUNT
OF BREACH OF WARRANTY
OF QUALITY.
See Sale of Goods.
Shoshi Muhun v. Nobo Krisiito.
I. L. Rep. 4 Cal. 801.
RIGHT OF RESPONDENT TO AP-
PEAL AGAINST JUDGEMENT
EX PARTE IN APPEAL.
See Appeal— Civil. 6. 28,
I KlSHOR Rot
Roy..
I. L. Rep. 3 Cal.
228.
Rep. 2 Mad. 76.
D,gltlzed by G00gle
( 1319 >
DIGEST OF CASES.
( 1320 )
RIGHT OF RESPONDENT WITHOUT
CEOSS -APPEAL TO QUESTION
CORRECTNESS OF ANSWER
GIVEN BY FULL BENCH TO
QUESTION OF LAW REFER-
RED BY DIVISION BENCH.
Set Practice— Privy Council. 8.
Musst. Phoolbas Koonwur v.
L.ALLA JoiiESHUR SAHOV...L.
Rep. 3 1. A. 7; I. L. Rep.
1 Cal. 226-
RIGHT TO REBUME-Grant in lieu of
Maintenance — Limitation.
Sv Limitation. 8.
Petamber Baboo v. Nilmony
Singh 1 L. Rep. 3 Cal.
793.
RIGHT TO RESUME OR ASSESS
SERVICE LANDS ON CESSA-
TION OF SERVICE.
See Ghatwsli Tenure.
I.EBlanund Singh Bahadoor v.
Thakoor Munrunjun Singh.
L L. Rep. SCal. 281,
See Resumption. 2.
Kevali. TalukdaRI Settlemeni
Officer... I. L. Rep. 1 Bom.
096.
RIGHT OF REVERSIONER- On Hindu
Widow's divesting herself of her Interest
in her Husband's Estate.
See Hindu Law— Forfeit, urn of
Widow's Estate.
Praq Das v. Hari Kishen...!. L.
Rep. 1 All. SOS.
RIGHT OF REVERSIONER (DECEAS-
ED DAUGHTER'S SON) TO
SET ASIDE ALIENATION OF
ANCESTRAL PROPERTY BY
MATERNAL AUNT.
See Hindu Law— Inheritance—
Daughter 'a Bona.
Bajnath ,. Mahabir I. L.
Rep. 1 All. 60S.
RIGHT OF REVERSIONARY HEIR-
Sale of Hindu Widow's Estate in Execu-
tion of Personal Decree against her.
See Personal Decree against s
Hindu Widow.
Baijun Doorevt, Brij Bhookuh
I. all Awasti ..L.Rep, 3 L
A. 376 ; I. L. Rep. 1 Cal.
133.
RIGHT OF RYOT TO HOLD BO LONG
AS HE PAYS GOVERNMENT
REVENUE.
See Rights of Wiraadars.
Fakir Muhammad « TirumaU
Chariar I. L. Rep. 1
Mad. SOS.
See Partition Suit.
SaHINOA PlLLAle. SuBBA RsD-
DiAx t L.Rep. 1 Mad.
33a
RIGHT TO SCOUR ARTIFICIAL
WATEH- COURSE.
See Artificial Watercourse.
Rameskur Pershad r. Koowj
Behari.-.L. Rep. 6 I A.
33 ; L, Rep. 4 App. Ca.
131 ; I. L.Rep. 4 Cat 633.
RIGHT OF SECOND MORTGAGEE TO
PURCHASE AT BALE UNDER
POWER OF SALE.
See Mortgage. 34.
Rajah Kishendatt v. Rajah
Mumtaz Ali -L. Rep. 6
I. A. 148, ISO.
RIGHT TO SHARE IN DESHPANDE
WATAN— Suit for Declaration of.
5m Pensions Act XXTTI. of 1871,
4.
Babaji p. Rajaram ..L L. Rep.
1 Bom. 76.
RIGHT TO SHARE IN JY0TI8HI
WATAN— Suit for Declaration of.
See Pensions ActXXDXof 1871. 6.
Babaji jr. Rajaram...!, L. Rep. 1
Bom. 76.
RIGHT TO SHARE IN KULKARNI
WATAN- Suit for Declaration of.
See Pensions Act XZTTX of 1871. S.
Babaji v. Rajaram. ..I. L. Rep.
1 Bom. 76.
RIGHT TO SHARE IN PATILKI
WATAN AND OFFICIATE IN
ROTATION— Suit for Declaration of.
See Declaratory Decree. 16. SO.
Nindan Gavda v. Malan Gav-
da L L.Rep. 1 Bom.
633.
Babaji i. Nana... I. It. Rep. 1
D.gmzed by GoOgle
< lan )
DIGEST OF CASES.
( 1322 )
BIGHT OF SISTER TO INHERIT IN
PREFERENCE TO SEPARATED
HALF BROTHER.
See Hindu Law — Inheritance —
Sister. 1.
Sakharau S. Adhikari e. SlTA-
BA1...I. L. Rep. 3 Bom. 353.
In Preferer.ee to Separated Remote Male
Relative of Deceased.
See Hindu Law — Inheritance
Bister. 2.
Dhonou Gurar s. Gakcabai...
I. L. Rep. 3 Bom. 309.
In Preference to Widow of Separated Pa-
ternal Uncle.
See Hindu Law — Inheritance —
Sister. 2.
MAHANTAPA U- NtLGAKGAWA..,I.
L. Rep.3Bom.3Q8, n.
RIGHT OF SON TO ENFORCE PARTI-
TION OF ANCESTRAL UrTMOVE
ABLE PROPERTY AGAINST
THE WILL OFHIS FATHER.
See Hindu Law— Partition. 2. 13.
Kali Parskadtf. Ram Chaban...
L L. Rep. I All. 159.
Sooraj B. Roer *. Shro Pershap.
L. Rep. 6 1. A, 88-100.
RIGHT OF SUBSEQUENT MORTGA-
GEE TO NOTICE OF FORECLO-
SURE.
See Bang. Reg. XVIT. of 1806, § S,
Dirgaj Singh it. Df-.ei Singh... I.
L.Rep. 1 AIL 499.
RIGHT TO SUE.
See the separate headings under Suit.
See Entry of Names of Knot's Ten-
ants in Revenue Survey Re-
gister as Occupants.
Bain *. The Survey Commission.
ERI1F RATNAGIRI...I. I.-Hop.
3 Bom. 134.
to Abate Public Nuisance.
See Right to Sue. 1 to S.
Act of State.
See Act of S'.a^e.
And tee Right to Sue. 7. '
RIGHT TO SUE-ranW.
Barred by Act XIV. of 1859 not Revived by
Repeal of that Act.
See Limitation. IS. 16. 17.
Nocoor Chunder Bose v. Kally
Coomar Ghose . I. L. Rep.
1 Cal. 328.
Abdul Karim v. Manji I. I,.
Rep. 1 Bom. 296305.
Rahchunder c JvonuTMONKO.
hinev I. L. Rep. 4 Cal.
283.
See Hindu Law— Maintenance of
Widow. 6.
Krishna M. Bose 0. Okhilomini.
I. L. Rep. 3 Cal. 331.
Cause of Action— Right to Turn of Worship
of Idol.
See Right to Sue. 6.
And see Right to Worship of Idol.
for Costs.
fiv Right to Sue. 11-12.
for Damages caused by Civil Suit.
See Right to Sue. 12.
Insolvency of Plaintiff,
See Insolvency. 1.
Sadooin b. Spiers I. L. Rep.
3 Bom. 437.
Land taken for Public Purposes — Appor-
tionment of Compensation by Decree
under Act X. of 1870, f 38— Suit to re-
open Question so settled.
See Land Acquisition Act X. of
1870, § 38.
Nilwonee Singh d. Rawbundhoo.
I. L. Rep. 4 Cal. 7S7.
Obstruction to Flow of Water.
See Riparian Proprietors.
Kali Kishen v, Jodoo Lal...L.
Rep. 6 I. A. 190.
To Recover Payments by Usufructuary
Mortgagee on account of Enhanced Go-
vernment Revenue.
See Mortgage. 41.
Nik
v Mai
Gam
. Sulaiman Sheikh
t .. XL. Sep. 2 All.
Diarized by Google
f
123 )
DIGEST OF CASES.
< »M >
RIGHT TO BUB— eontd.
to Set Aside Adoption by Daughter.
Sty Right to Sue. 6.
lo Set Aside Wrongful Distraint,
See Right to Sue. 9.
of Village Priest against his Yajman.
See Right to Sue. 13.
Wukf— Parties beneficially interested in -
Right of-to Sue.
See Mahomedan Law — Wakf.
Fateh Saheb Bibi *. Damouav
Pheihji ..I. L. Rep. 3 Bom.
84.
of Worshippers of Idol for Breach of Trust
See Right to Sue. 10.
1. Obstruction lo Public Road— Special
Damage.] The plaintiffs, who were Musulmans,
sued to establish their right to carry tabuts in
procession along a certain road for immersion
in the sea, and alleged that the defendants, also
Musalmans, had obstructed them in so doing,
and that the Magistrate, at the instance of the
defendants, had made an order prohibiting the
plaintiffs from using the road for that purpose,
but did not allege any personal loss or damage
to the plaintiffs arising from the obstruction.
Both the tower Courts found that the road along
which the plaintiffs desired to carry their tabuts
(o the sea was a public road.
Meld, that the plaintiffs could not maintain an
action in respect of such obstruction, unless
they could prove some personal loss or injury to
themselves, in addition to the general inconve*
nience to the public, and that although a Court
of Equity, When private individuals suffer an
injury quite distinct from that of the public in
general in consequence of a public nuisance,
will grant an injunction, and such relief as may
compel the wrong-doer to take active measures
to discontinue the nuisance, yet the mere absence
of the religious or sentimental gratification aris-
ing From carrying tabuts along a particular
public road was not any such particular loss or
injury as would be sufficient, according to the
English and Indian precedents, to sustain a
civil action. Sathu KAOiRSAusAREr, Ibrahim
Aga. Westrofp, C.j., and StehiU, J I. L.
Rep. 2 Bom. 4S7, 1877.
3. Public Obstruction.] In all civil
suits For the removal of a public nuisance, the
plaintiff must show that he himself has suffered '
RIGHT TO SUE-ra-irrf.
iug from the obstruction. Gehanje Kes Path
v. Ganpati Lakshman. Westropp, C.J., and N.
Harridas, J ..I. L. Rep. 2 Bom. 469, 1875.
3. Obstruction to Public Thorough/art
—Special Damage.] No suit lies for the remo-
val of an obstruction on a public thoroughfare
unless the plaintiff .has sustained special
damage therefrom. Kahim Baksh e. Budha.
Turner and Otdfield,)) I. J,. Rep. 1 All.
249,1870.
Note.— The Court seem to have been of
opinion that the case of Jina Ranched v. Jedha
Ghella (i Bom. 11. C. Rep. i) was opposed to
this view of the law ; but an examination of
that case, which is not satisfactorily reported,
shows that the decision was based on the
supposition that the plaintiff had sustained
special damage,
4, Public Thoroughfare — Basement-
Municipal Committee, Ptmers of — Special Da-
mage.] In a suit to establish a right of access to
a public thoroughfare and (o the use of a certain
drain, it appeared that certain land which
formed part of a public thoroughfare, and which
adjoined the plaintiff's premises, had been sold
by the Municipality to the defendant, but a
sufficient portion of land remained in use as a
public road. While the land remained part of
the public thoroughfare, the plaintiff had im-
mediate access to such thoroughfare, and the
use of a drain. After the purchase by the
defendant, he appropriated to his own exclu-
ive use that portion of the land purchased by
Im, so as to obstruct the plaintiffs access to
ic new thoroughfare, and bis use of the
Held, that the plaintiff having suffered injuries
nd inconveniencies by the closing of the
thoroughfare by the defendant, which affected
him beyond what affected the public at large,
had a right of action against the defendant, and
there was nothing in the circumstance that the
defendant's title was derived by purchase from
the Municipality, which could affect the plain-
tiff's right to relief, inasmuch as the Municipality
Id not have dealt with the old thoroughfare
the special injury of the plaintiff, but in
closing a portion of it would have been bound
to provide adequately for his drainage, and his
access to the highway which they substituted
for theold one. Fazal Haq v. Maha Chand
hy Google
DIGEST OF CASES.
( 1926 )
BIGHT TO BUB-,contd.
Stuart, C.J., and Oldfield, J...L L. R«p. 1 All.
857, 1878.
See Empress r. Projonath Dbv...I. L.
Rep. H Cal. 425.
Under Bengal Act HI. of 1864.
5. Suit to remove Obstruction on Public
Thoroughfare — Special Damage.] Where special
damage is caused to a person by an obstruc-
tion placed on a public thoroughfare, he is
entitled to sue in the Civil Courts to have the
nuisance abated, notwithstanding the provisions
of the Criminal Procedure Code for the removal
of obstructions in public thoroughfares by
summary proceedings before a Magistrate. Raj
Kookar Singh v. Sakbbzada Roy I. L.
Rep. 8 CaL 90, 1877, F. B.
S. C. under Reference to Full Bench.
6. Cause of Action — Right to Turn
of Worship ] A plaint, which alleged that the
plaintiffs were entitled to perform the worship
of an idol on a certain day, and that they had
been prevented performing such worship on
that day by the refusal of the defendant to
deliver up to them the idol for that purpose, and
that in consequence of such refusal the plaintiffs
had been disgraced in the eyes of the other
members of the family, and had lost the benefit,
from a religious point oi view and otherwise,
which they would have enjoyed if they had per-
formed the worship in their turn — Held to dis-
close a cause of action. Debkndronath Mul-
lick o. Odit Churn Muluck. Pontifex, J. ..I.
L. Rep. 3 CaL 390, 1878.
7. Liability of Government — Acts done
in Exorcise of Sovereign Powers, ZI and 32 Vict.,
C. ]06— Matter of Revenue— %i Geo. lit,, C. 70,
§ 8.] The plaintiff, for several years before and
up to 31st March 1S74, carried on the business
of a retail seller of ganja and sidhi in shops
Calcutta, licensed for that purpose by the proper
Government officers, under certain Government
regulations ; and he kept the ganja and sidhi in
godowns also licensed by Government. The
license in each case lasted only for one year,
terminating on 31st March, and might for suffi-
cient cause be withdrawn within the year. On
4th March 1874, while the plaintiff was carrying
on his business, the Superintendent of Excise for
Calcutta put up for public competition the right
of retail sale of, amongst other excisable articles,
ganja and sidhi, which was the usual way of
distributing the yearly licenses. The sale noti-
RIOHT TO SVZ-contd.
fication contained a list of the shops, with the 1o-
ies where they were situated, but the right
reserved, in case of combination, or for other
ic, to transfer, before settlement, any shop
from the locality specified to some locality in the
ighbourhood ; and the conditions of sale were
stated to be: "that the Collector does not bind
himself to accept the highest bid; that the set-
tlement with the accepted auction purchaser
be contingent on the approval by the police
authorities of the proposed locality of the shop
nd the character of the applicant for license ;
that the person accepted as the auction pur-
chaser shall deposit at once a sum equal to the
fee payable for two months, and shall at
the same time state in writing in what building
his shop will be opened, it being understood that
the above deposit will be returned to any per-
whose license is subsequently refused for
police reasons." At the sale the plaintiff was the
highest bidder for the licenses for five shops for
the sale of ganja and sidhi, and his bids were
recorded ; and he also paid a deposit in respect of
those licenses, amounting lo Rs. 968. Subse-
quently the Excise authorities refused passes to
the plaintiff for the excisable articles which
ited his stock in trade, and so in effect
compelled him to close his godowns and shops.
.t by the plaintiff against the Secretary
of State for India, in which the plaintiff alleged
that the Excise authorities accepted his bid, and
thereby contracted on the part of Government
to give him licenses tor the five shops and to
allow him to exercise his trade therein, and that
by their not giving him these licenses, and by
forcing him to close his shops and godowns, a
breach of contract had been committed, for
which he was entitled to damages: —
Held by Phear, J.— That the plaintiff must
fail in his suit, as he had not attempted to make
out any case against the Secretary of State for
India or any specific person ; and that even treat-
ing the plaint as one presented against the Secre-
tary of State for India in Council, the plaintiff
must Fail, as there was no such contract estab.
lished between him and the Government as he
relied upon, the acceptance of the bid (if it in
fact took place), and the payment of the depo-
sit, being, at most, a preliminary contract only,
by which one term of the principal contract was
agreed on, era., the price or license fee at which
the shops, if settled at alt with the plaintiff,
were to be settled.
D,gltlzed by G00gle
( 1827 )
DIGEST OF CASES.
(
)
RIGHT TO BVE—confd.
Held, also, both in the Court below and on
appeal, even assuming there was a contract, that
the suit was not maintainable, being in respect
of acts done by the Government in the exercise
of sovereign powers . Suits such as might, pre-
vious to the passing of Stat, zi and 22 Vict., C
106, have been brought againt the East Indi
Company, and subsequently against theSecretary
of State for India in Council, are limited to
for acts done in the conduct of undertakings
which might be carried on by private ind
without sovereign powers. Nobin Ci
Dby p. The Secretary of State for
Garth, C.J., and Macpherson, J... I. L. Rep. 1
Cat. 11.
Dissented from in ..I L. Rep. 4
Had. 344.
And I. L R. 5 Mad. 373,
187S.
8. Hindu Widow's Right to Sue to set
Aside an Adoption by her Dauqhter-in.ltrn.'] A
Hindu widow is entitled to sue to set aside
adoption by her daughter-in-law, in respect of
her reversionary interest in her deceased
estate, contingent on her surviving her d
ter-in-law ; but, having regard to her r
and contingent interest, their Lordships gave
no opinion as to what the effect of a decree
in such a suit would be, — whetherone in favour
of the adoption would bind any other rever-
sioner, or whether, on the other hand, a deci-
sion adverse to the adoption would bind the
adopted son as between himself and anybody
except the plaintiff. Juhoona Dassya Chow-
DHRANI V. BaMASOOHDEKAI DaSSYA CHOW.
VRBANI...L. Rep. 3 I. A. 72, 1878 ; I. L.
Rep. 1 Cal. 280.
B. C. under Hindu Law — Adop-
tion. 10.
And under Bengal Reg. X of 1793,
§33.
0. Bhag-Jote Tenure— Wrongful Dis-
traint—Suit to set aside.'] Where lands were
held under a ihag-jote tenure, the landlord
supplying the seed, and the agreement be-
ing that the tenants should cut and store the
crops on the landlord's chuck, and that after
the threshing, division should be made between
the landlord and the cultivators, and the crops
were wrongfully distrained by a third person ; —
Held, that the dominion over the crop was
with the landlord, who was entitled to sue to set
RIGHT TO BVE—contd.
aside the wrongful distraint. Hokeo Nabaih t.
SHOODHA KRISHToBERAH. Birch and Milter,
JJ...I. L. Rep. 4 Cal. 890 ; 4 Cat Rep. 32,
1879.
10. Suit Relating to Dewasthan Pro-
perty—Breach of Trust— Worshippers of Idol—
Act X. of 1877, ( 539.] Worshippers or devotees
of an idol are entitled to bring a suit complain-
ing of a breach of trust with reference to the
fund or property belonging to the idol, or ap-
pendant to its temple- Quart, whether in a suit
brought after Act X. of 1877 came into force, t
539 of that Act could, in speaking of "public
charitable purposes," be held applicable to the
dcaasthan of an idol or temple dedicated merely
to the purposes of the idol or temple. Radha-
BAi a. ChaXKAJI Raujt SAU. Westropp, C.J.,
and Kemball, J ..1. 1. Rep. 3 Bom.27, 1878-
11, Costs of Proceedings under Act XX.
a/1864.] An action will not lie to recover the
costs of proceedings taken under Act XX. of
1864 by a creditor to obtain the appointment of
an administrator to the estate of a minor, against
whom he wished to file a suit, when the Court
before which such proceedings were taken had
made no order as to the payment of those costs-
KabirKamjani. Mahauu Shiwajee. Westropp,
C.J., and Mel-rill, J. ..I. L. Rep. 3 Bom. 360t
1877.
12. Suit for Damages Caused by a Civil
Action."] A suit is not maintainable for damages
occasioned by a civil action, even though
brought maliciously and without reasonable and
probable cause ; nor will a suit lie to recover
awarded by a Civil Court, though it may
r cost3 which could not be so awarded.
Pranshankar Shivshankah V. GeiVINDLAL
ParbHudaS. Melvill and A'. Harridas, J J... 1. 1*.
Rep. 1. Bom. 467, 1876.
13. Suit by a Village Priest against his
Yajman.] In the Presidency of Bombay a vil-
lage priest can maintain a suit against ayajman
who has employed another priest to perform cere-
nd recover the amount of the fee
ild properly be payable to him if he
had been employed to perform such ceremonies.
As a rule, the fee paid to the priest actually
employed would afford a fair indication of the
amount recoverable by the plaintiff under such
Sembie, a yajman ought to pay to the village o
:ity priest, if not employed, a fee similar ii
D,„i„.db»Googlc
( 1339 )
DIGEST OF CASES.
RIGHT TO SUE— contd.
amount to that which he fthe yajman) pays to
the priest actually employed, it the latter were
not unreasonably large. Dinanath Abaji ». Sa.
dashiv Hasi Madhava. Westropp, C.J., and
Kemball, J L I* Rep. 3 Bom. 9, 1878
RIGHTS OF SUPERIOR AND LOWER
RIPARIAN PROPRIETORS.
See Eanement. 3.
SubramamyaAyyrro.Ramchan-
ura Rau...i. L. Rep. IMad.
330.
See Riparian Proprietors,
Kali K. Tacore v- Jadoo Lal
Mullick...L. Roii, 6 I. A
190.
RIGHT TO TURN OP WORSHIP OP
IDOL.
Sec Right to Sue. 6.
Debbndkohath b. Odit Churn...
I. L. Rep. 3 Cat. 390.
And see Right to Worship of IdoL
RIGHT OP WAY— Decree establishing—
against Mortgagor in Possession, in Suit
to which Mortgagee not Party, and of
which Mortgagee has no Notice, no
Estoppel against Mortgagee.
See Estoppel. 4.
BONOKALEB V. KOVLASH ChUK-
dbr I L. Rep.4 Cat.
693.
RIGHT OF WIDOW TO ENFORCE
PARTITION.
See Hindu Daw— Partition. 3.
SOUDAMONEV •. JOGESH CHUNDEK.
I. L. Rep. 2 Cal. 262.
RIGHT OF WITNESS TO APPEAR
BY COUNSEL— Practice— Indian Insolvent
Act tl and U Vict., C. 2t, ) 36.] Section 36
of the Indian Insolvent Act contemplates that a
witness appearing for examination by virtue of
an order made under that section, shall be in the
same position as a witness in any civil proceed-
ing, and that only the insolvent and the oppos-
ing creditors are entitled, as of right, to appear
by counsel. The practice in bankruptcy in
England, based apparently on courtesy, of
allowing counsel to appear on behalf of a
witness in certain cases, and to take part in the
proceedings in a modified way, does not prevail
in the Insolvent Debtors' Court in Bombay, and
the witness cannot (even if. he could in England,
which may well be doubted) claim the assist-
ance of counsel as of right; but counsel may
properly be allowed to attend under special
circumstances. In tke matter of NuRSEY Kes-
SOWJBB. Sargent and Melvill, JJ-..I. L. Rep.
3 Bom. 270, 1870.
RIGHT TO WORSHIP OP IDOL-iim.ia.
Hon Act IX. 0/1871, Sched.II., Arts. 118, 131—
Exclusive Worship— Right to Turn 0/ Worship.]
The plaintiff, in 1875, sued as heir of her husband
for possession of a share of a certain taluk, and
to establish her exclusive right of worship of an
idol A., and the right to the worship of an idol
3. for one-sixth of every year, from the posses-
sion and enjoyment of which, she alleged, she
had been dispossessed by the defendants in
1866:—
Held, that the plaintirs claim as to the idol
B. was clearly brought within the purview oi
Art. 131 of Sched. II. of the Limitation Act
IX- of 1871 ; but that the claim as regards idol
A. was governed by Art. 118 of the same
Schedule, and not having been brought till after
the expiration of more than six years after the
accrual of the cause of action, was barred.
The right of worshipping an idol is not of the
nature of an interest in immoveable property.
Ehsah Ckunder Rov «, Monuohini Dassi.
White and Milter, JJ...I. L. Rep. 4 Cat 088,
1878.
RIGHTS AND LIABILITIES OF
DRAWER, DRAWEE, AND
PAYEE.
See Hundi.
Shetk Kahandas Narandas v.
Dhaiabhai L L. Rep. 3
Bom. 183.
RIOT.
See Laud held by Joint Owner*.
- Empress v, Rajcoomar Singh...
L L. Rep. 3 Cal. 573.
RIOTING AND CAUSING HURT.
See Offence made up of Several
Offence".
Empress v. Ram Aomin I. L.
Rep. 3 All. 139.
D.gmzed by GoOgle
( 1331 )
DIGEST OF CASES.
( 1332 )
RIPABIANlFROFBIETOBB.
See Accretion.
RUGHOOBUK V. DVAL MAHARAJA
Kishbn Pektab..,L. Itsp- 6
I. A. 211.
Rights of Superior and Lower.
See Easement. 3.
SltBRAMANIVA V. RAMCHANDRA
Rad.-.X. L. Rep. 1 Had.
33S.
Flowof Water— Encroachment] The plain-
tiff anddefendant were proprietors of land and
gardenson opposite sides of a tidal creek, which
sides were protected by walls. The defendant,
the wall on his side Becoming dilapidated, con-
structed a fresh one, altering its direction, and
encroaching five feet on the bed of the stream.
In a suit for possession of the land by demo,
lishing the said wall, the plaintiff alleged that he
was entitled to the solum on which it was built,
that his navigation was obstructed, and that
there was danger of his screw-house falling
down ; it appeared, however, that the Govern-
ment, and not the plaintiff, was the ownerof the
solum, and that the plaintiff neither claimed nor
proved that he was entitled to the flow of water
as it had been accustomed to flow, and that that
flow had been seriously and sensibly diverted so
as to be an injury to his rights :—
Held, that the plaintiff had f ailed|to show ei ther
damnum or injuria, and had therefore no right
of action. Kau Kishen Tagork v. Jadoo Lal
Muluck...L. Rep. 6 1 A. ISO; 0 CaL Rep.
97, 1879.
RIVAL DECREES.
See Execution of Decree. 14.
Udai Singh ». Bharat Singh ..
I. L. Rep. 1 All. 456.
BO AD— Presumption of Ownershipof Site of.
See Ownership of Bite of Road.
Mobaruck Shah v Toofany...
I. L. Rep. 4 Cal. 306.
Presumption as to Title to Soil of Private
See Title to Soil of Road.
Shah Churn v. Tarinv Churn...
I. Zi. Rep. 1 Cal. 432, 438.
ROAD CESS ACT (BENGAL ACT X. OF
1871)- Kabuliat— Construction of—Incoi
—Suit for Arrears of Kent.'] In iS6a, whenthe
income-tax was in force, the plaintiff made
BOAD CESS ACT (BENGAL ACT X. OP
1871) -ton td.
patni settlement of certain lands with the defend.
ant at a rent of Rs. 35,696 per annum, of which
Rs. 13,096 was to be annually lodged by the
defendant with the Collector, and the balance
,700, described as the amount of annual
profits to be paid by the defendant to the plain-
tiff, and the kabuliat contained a clause that,
If the revenue be enhanced in any way,
1 any imposts be laid by Government in
future, I (the defendant) shall pay the same
iparately in addition to the aforesaid settled
nount of rent • • • but you the (plaintiff)
shall pay the income-tax according to your
In 1876, the plaintiff sued the defend-
rears of rent. The defendant, under
the kabuliat, claimed to set off as a tax on
sum which he had paid under the Road
Cess Act (Bengal Act X. of 1871), which was
passed after the Income-tax Act had been
Held, that the inc&me-tax intended by the
ibuliat was the income-tax then in force, and
ly income-tax that might thereafter be imposed
which fell upon income and was of the same
character and nature as the income-tax then
n force. But, having regard to the provisions
of the Road Cess Act, the impost was not an
come tax, and the defendant could not, there-
re, set off the amount as income-tax-
Trie income-tax which was levied at the date
of the kabuliat was imposed by the Legislature
of the Government of India on all persons whose
incomes exceeded a certain amount, and formed
part of the financial system of India, and was
levied mainly, if not entirely, for the purposes
of India. The subject-matter of the tax was a
man's annual income, from whatever source
derived, and was levied on what actually came
to his hands as income, and not on the value of
his property ; whereas the road-cess was imposed
by the local Legislature of Bengal, was not a tax
on income, but on immoveable property in
a certain part of India only, irrespective of
whether the property was a rent-paying one or
not, and the proceeds of the tax were applicable
to purely local purposes-
Although the Road Cess Act contained no
saving clause in favour of contracts, it did not
prohibit in future the making of contracts,
which should interfere wilh the incidence of the
road-cess as directed by the Act, nor vacate
contracts that might have been made before the
D,gltlzed by G00gle
( 1S33 )
DIGEST OF CASES.
BOAS CESS ACT (BENGAL ACT X.
OP 1S71)-<:0b/i/.
passing of the Act. In the absence of any pro-
visions to that effect, therefore, the terms of the
iabuliat must sttW govern the rights of the par-
ties, and the agreement they had come to was
not affected by the subsequent passing of thi
Act. SlTRNOHOYEE DaBEE V. KOOMAK PuRRESH
NaRaiN Rov. While and Tottenham, JJ...I. L.
Rap. 4 0*1- 878,1878.
RULE -Mode in which a Magistrate should
show Cause against a.
See Mode in which a Magistrate,
&c.
Hurso SoonderyChowdhrani..,
I. L. Eep. 4 Cal. SO.
See Bombay Act I. of 1605, § 35,
Collector ofThana p. Dadabhai
* Bomanji I. L. Bep. 1
Bom. 353.
KULE 149 OF THE COMMON LAW
RULES OF SUPREME COUIIT OF
BOMBAY — Application by Attorney
under.
See Attorney and Client. 1.
Aba Ishkail v. Aba Thara...
L L. Bep. 1 Bom. 363.
RULES OF COURT— Rule 14 of Rules of
23rd August 1866— Bombay.
See Power of Directom to bind
Company by Bill of Ex-
change.
In Ike matter of The New Fleming S.
& W. Co. (Limited) ... L L. Bep.
3 Bom. 439, 1879.
— Rule 4 of Rules of High Court, Mnd June
1875— Calcutta.
See Probate. 3.
In the Goads of Shamachurn
Mullick.-.L L. Bep. 1 Cal.
03.
■ ■ Rule 149 of the Common Law Rules of the
Supreme Court of Bombay.
See Attorney and Client. 1.
Aba Ishhail v. Aba Thara L
L. Bep. 1 Bom, 308.
BULES OF COUBT— co»td.
Madras High Court Rules 4 and 5 of the
'th of July 1866— Letters Patent (Madras), Ct.
9. J The 4th and 5th Rules of the Madras High
Court of the 5th July 1866 are within the powers
conferred on that Court by the Letters Patent
of 1865 ; and the provision of the Letters Patent,
CI. 0, relating to the admission and powers
of advocates, vakils, and attorneys are fully
authorized by the Stat. 24 and as Vict., C. 104.
In the matter of the Petition of the AttoRnBVS.
Morgan, C.J., Innes and Kindersley, JJ-.-I. L.
Bep. 1 Had. 34, 1875.
BYOT— Ejectment of Cultivating.
See Partition Suit.
SaIIINDA PlLLAI V. Sl/BBA RED-
diar L L. Bep. 1 Mad.
S33.
Right of — to hold on Payment of Assess-
See Partition Suit.
Sauinda Pillai v. Subba Red-
mar I. L. Bep. 1 Had.
383.
See Bights of Hirasdara.
Fakir Muhammad v. Tiruhala
Chakiar. ..I. L. Bep. 1 Had.
308.
SAOOTBA-SAPINDAS.
See Hindu Law — Inheritance —
Widow*. 3.
Lallubhai v. Mahkuvarhai,. X
L. Bep. 3 Bom. 388.
BALE OF ANCESTRAL PROPERTY
IN DISCHARGE OF DEBTS OF
FATBEB.
See Hindu Law — Alienation of
Ancestral Property. 3.
Gl KDHAREE LALL V. KANTOO I.ALL.
L. Bep II. A. 331.
BALE OF ANCESTRAL FAMILY-
HOUSE IN EXECUTION OF
DEOBEE ON MORTGAGE,
See Hindu Law — Alienation of
Ancestral Property. 1.
Bhikhah DAStr. Pura...I.L. Bep.
3 All. 141.
mortized by Google
( 1835 )
DIGEST OF CASES.
BALE OF ANCESTKAL PROPERTY SALE FOB ARREARS OF REVENUE
IN EXECUTION OF DECREE
AGAINST FATHER.
See Hindu Law — Alienation of
Ancestral Property. 3.
GlRDHAREE I.M.I, tr. KANTOO I.
L. Rep. 1 I. A. 321.
SALE OF ANCESTRAL PBOl'KRTY-
\n Execution of Decree against Member
of Undivided Family.
See Hindu Law— Alienation of An-
cestral Property. 1. 2. 3. 4. 5.
See Hindu Law— Undivided Fami-
ly. 3. 4. 7. 8.
See Sale in Execution of Decree.
10. 18.
See Hindu Law— Liability of An.
ceetral Estate in the hands
of the Heir for Debts of the
Ancestor.
See Bombay Act V. of 1882. 2.
See Civil Procedure Code, Act VUL
of 1800, § £69.
SALE OF ANCESTRAL PROPERTY
BY FATHER DURING BON'S
MINORITY— Suit to set aside a.
See Onus Probandi. 8.
Adurmoni Devi v. ChowdhrvSib
Narain Kur.,.1. L. Rep. 3
Cal. 1.
BALE FOR ABBZAHB OF RENT.
See Fatnee Talook.
Brindabun Sircar Chowdhrv t.
Brindabun Dev Chowdhrv.
L. Rep. 1 1. A. 178.
See Rent Suit.
MaDHO PrOSHAUD V. PuRSHAN
RAM...L L. Rep. 4 Cal. 520.
SALE FOR ARREARS OF REVENUE.
See Mortgage 3.
Ramchandra (r. Bhihrav.,.1. L.
Rep. 1 Bom. 077.
— Caused by One of Several Joint Owners-
Suit for Damages.
See Daraagea. 1.
[.ALLAH RAWESSHUR v. LALLAH
BtsaGH I. L. Rep. 1 Cal.
408.
-contd.
- Limitation to Suit to set aside — Fraud.
Si* infra, 9.
- Notice.
SffictJI. of 1859, 5 5.
Bum
Lali
Moii,
Froshao L. Rep. II. A.
88.
Purchase at — by Manager of Joint Hindu
Family, in his own Name.
See Act I. Of 1846, § 21.
Toondun Singh *. Pokhnarain
Singh... L. Rep. 1 L A. 343.
Right of Purchaser at— to Enhance Rent.
See Enhancement of Rent. 1.
PURMAKUND AsRUH V. RoOKINBE.
I. L. Rep. 4 CaL 783.
Setting aside — after Judgment Debtor's In.
terest in Surplus Proceeds has been sold
in Execution.
See Bale in Execution of Decree. 17.
Rah Thul v. Biseswar Lall.,.L.
Rep. 2 I. A. 131.
■ Suit to Avoid Under-Tenure by Purchaser
See infra. 1.
Unrecorded Copartner — Purchase by.
See Act XL of 1859, f 53.
AbooolBari ii. Ramdass Coon.
noo I. L. Rep. 4. Oil.
607.
1. Under-Tenure; Suit to avoid— Per.
manent Settlement — Structures and Jmfrove.
ments mitkin the meaning of f 37 of Act XI.
of 1859.] In a suit lo avoid an under-tenure by
the purchasers at an auction sale for" arrears of
Government revenue, the defendants contended
that the tenure was created prior to the perma-
nent settlement, and that some portion of the
lands comprised in it were covered with perma-
nent structures and improvements, and that,
accordingly, it was protected under exceptions
I and 4 to % 37 of Act XI. of 1S59 ; but the lower
Court gave a decree to the plaintiffs and annul-
led the under-tenure ; —
HeldbyWhite, ]., that, notwithstanding a party
may fail to show that his tenure was created
prior to the permanent settlement, yet he is
entitled to the benefit of the fourth exception
D,gltlzed by G00gle
{ J387 )
DIGEST OF CASES.
( 1S3S )
SALE FOB ARREARS Of REVENUE—
in respect of any permanent structures that may
be On his holding. Brojo Soondur Biswas v.
Gouri I'ersaud Roy (S. D. A. Dec. 1857, p. 54)
followed. Biiaoo Bibee t. Ram Kant Roy
CHOWDHRV...I. L. Rep. 3 Cal. 293, 1877.
3. Suit to set aside— Fraud— Limita-
tion.'] Where one of several co-sharers fraudu-
lently contrived to have an estate brought to
sale for arrears under Act XI. of 1859, and pur-
chased it benami of his son : —
Held, that another co-sharer aggrieved by the
sale could maintain a suit to have the property
reconveyed, although the period limited by f 33
of Act XI. of 1S59, and Art. 14 of Sched. II. of
Act IX. of 1871, for a suit to set aside the sale,
had expired. Such a suit falls within Art. 95 of
the said Schedule. Bhoobun Chcnder Sen
Ram Soondbb Surma Mozoomdar. Birch and
mtttr, JJ I. L. Rep. 3 Cal. SOO, 1877.
SALE FOR ARREARS OF TCBVAZ
(RENT)— Right of Official Assignee
SALE CONVERTIBLE INTO A WORT
QAQR—eontd.
principal and interest by the grantee 50 long as
the grantor remained without having made an
adoption ; and that the deed, therefore, was
of a sale liable to be converted into a
mortgage, and not of a mortgage liable to be
inverted into a sale. Subhabhat Babanbhat
Vasudevbhat Subhabhat I. L. Rep. 2
Bom. 113.
- Mortgage convertible into Sale — Re-
demption—Conditional Sale.'] The plaintiff's an -
■tors, on 13rd June 1858, executed a document
the defendant's ancestor which recited a pre-
>us mortgage by the former to the latter, on
which the parties agreed that there were on the
23rd June 1858 Rs. aoo due by the grantors to
the grantee, and contained an agreement that the
grantee should pay Rs. 75 to another creditor of
the grantors, and for this consideration of Rs. 175
the deed purported absolutely to sell and con-
vey the mortgaged premises to the grantee.
The grantee on the same day executed to the
grantors a document reciting the sale of the
mortgaged lands by the grantors to the grantee
for Rs. 375, and covenanting that the grantee
should reconvey to the grantors the lands, the
Reddi...I. L. Rep, 1 Had. subject of the grant, if the grantors should re -
the grantee the sum of Rs. 275 within a
certain time, and providing that in default of
payment within such period, the covenant for re-
conveyance should be void.
Hdd that the transaction was a sale, and not
mortgage, and* that the grantors were not en-
vied to redeem after the expiration of the period
0 fixed for payment of the Rs. 175, there
eing no evidence nor allegation that Rs. 275
were at the date oE the execution of the two
documents an insufficient consideration for the
sale of the land, nor any stipulation that the
grantee should account for the rents of
profits during his possession, or for payment of
interest by the grantors on the sum of Rs. 27s,
either before, at, or after the expiration of the
time fixed within which the land might be
repurchased by the grantors, nor anything to
show that the grantors remained in posses-
sion after the execution of the two documents,
or that, subsequently to that time, any advances
were made by the grantee to them on the secu-
rity of the land ; nor anything which pointed to a
right on the part of the grantee to recover from
the grantors the sum of Rs. 275, or any part of
it, either before, at, or after the pcrioJ named
for the repurchase.
See Insolvency. 2.
China S. Mudaluv. Kandasvami
SALE CONVERTIBLE INTO A HORT-
O AGE— Where a deed, which was on the face of
it described as a mortgage, stated that the grantee
was already in possession, under a previous mort-
gage by the grantor, of the property comprised in
it, and was under the second deed to continue to
receive the rents and profits thereof in liquidation
of interest as far as they would go, and conti-
nued: — "If I get a boy of my liking for adoption,
and make him my adopted son, I will pay you
off in one lump sum the amount due under the
original mortgage deed, and the money due
under the second mortgage, together with inter-
est remaining due, and redeem my share of the
land, allowances, and profits aforesaid. In the
event of my not adopting a son, my share of pro-
perty, all muli land, allowances, &c., may be
enjoyed by you in the same way as I did, in
right of purchase for the sum, principal and in-
terest, due to you" : —
Held, that under the deed, the grantor was
not to be liable to repay the principal -money, 01
such balance of interest (if any) as might accrui
on it, unless he adopted a son ; that no sui
could have been maintained against him for
D,gltlzed by G00gle
( 1339 )
DIGEST'OF CASES.
BALE CONVERTIBLE INTO A MOBT-
GrAQE— amid.
The law as laid down in Ramji v. Chinio (i
Bom, H. C. Rep. 109) for this Presidency is still
in force, and governs mortgages with clauses of
conditional sale, executed before or after 1858.
Bapu Apaji e- Senavaraji Marvadi. West-
r°pp, C.J., and Weft, J L L. Bep. 2
Bom. 231, 1S77.
BALE OP DWELLING HOUSE FOB
OCCUPATION, WITHOUT THE
SITE.
See Mahomedan Law— Pre-emp-
tion. 3.
Zahl'rb. Nur Ali.,.1. I* P-9P-
9 AIL 99.
SALE IN EXECUTION OP DECREE—
Appeal by Auction Purchaser at— from
Order setting aside.
Sec Appeal— Civil. 22
GOPAL SlNGH V. DULAR KUAR...
I. L. Bep. 2 All. 3S2.
For Arrears of Bent— Sale of Under -Tenure
—Process against other Property of Debtor,
See Seas. Act VOL of 1881, § 81.
Huhrish Chunder Roy «. Col-
lector or JHSSORB...I. L,
Rep. 3 CaL 719.
Assignment by Purchaser at.
See Hindu Law— Sale of Land.
Govind s. Govind...I. L. Hep.
1 Bom. BOO.
Consent Decree— Right of Party not repre-
sented in Suit how affected.
Sue Mahomedan Law. I.
ASSAMATHEN NESSA BlBRK «.
Rot LuTCHyEPUT Singh...
I. L. Rep. 4 Cal. 148.
— Of Coparcener's Interest in the Undivided
Family Estate.
See the Index heading Alienation
of Ancestral Property— by
Sale in Execution of Decree
against Member of Undi-
vided Family.
— Of Decree Charging Land— Interest in Im-
moveable Property.
See Bale in Execution of Decree. 7.
SALE IN EXECUTION OP DECKBB—
eontd.
Distribution of Sale Proceeds— Prerogative
Right -of Crown in respect of Court Fees.
See Prerogative of the Crown.
Collector of Moradabad «. Mu-
hammad Daih Khan... I. L.
Sep. 2 All. 196.
Formal Possession — Limitation.
See Limitation. 12.
KOONJO MOHL'N B. No BO CoOMAB-
I. L. Bep. 4 CaL 316.
Inadequacy of Price.
See Sale in Execution of Decree. 18.
Irregularity not affecting the Judgment-
Debtor.
ire Sale in Execution of Decree. S.
Of Khalisa Mahal by Civil Court.
See Sale in Execution of Decree, 8.
Land paying Revenue— Khalisa Uakat.
See Bale in Execution of Decree. 8.
— Liability of Purchaser at— for Government
Revenue.
See Sale in Execution of Decree. 3.
- — Lis Pendens, Qtutre whether Doctrine of,
applies to a.
See Bea Judicata. 28.
Ali Shah e. Husain Bakhsh.,.1.
L. Bep. 1 All. 588.
Material Irregularity in.
See Sale in Execution of Decree. 8.
8.11.
Money. Decree— Mortgage.
See Sale in Execution of Decree. 4.
9.
See Mortgage. 40.
Gam pat Rai v. Sarupi LI.
Bep. 1 All. 448.
— Money-Decree obtained by Mortgagee, un-
connected with his Mortgage— Notice of
Mortgage— Right of Purchaser.
Set Mortgage. 3.
TlTKARAH V. RAMCHANDRA...L L.
Bep. 1 Bom. 314.
See Sheriffs Bale. 3.
BHUOQOBUTTVr. SAKACHURN...L
L. Bep. 1 Cal. 337.
zedbyGOOgle
DIGEST OF CASES.
BALE IN EXECUTION OF DECBEE-
eontd,
On Mortgage
See Emblements,
Land Mortgage Bank ». Vishnu
I. L. Hep. S Bom. 670.
See Mortgage. 1.
SlIRINGAPUKE V. PETHR I. L.
Bep. 2 Bom. 663.
On a Mortgage— Right of Purchaser.
See mortgage. 6.
MUTHORA NATH V. ChUNDERMO-
KEY...I. L. Bop.4Cal. 817.
01 Occupancy Rights.
See Bight of Occupancy. 3.
Ablakh Rai I. Udit Narain Rai.
I. L. Bep. 1 AIL 353-
Order cancelling Auction on Groundof Sale
for Inadequate Price — Suit to set aside.
See Civil Procedure Code, Act Vlll.
Of 1869, §§ 266, 257.
Sukhai v. Darvai ..L L. Bep. 1
AIL 374.
Period from which Purchaser's Title dates.
See Sale in Execution of Decree. 3.
■ Personal Decree against Father— Suit by
Son to recover Share of Family Properly
purchased at.
See Sale in Execution of Decree. 1 0.
16.
Personal Decree against Hindu Widow-
Rights of Auction Purchaser and Rever-
sionary Heir.
See Sale in Execution of Decree. 19.
See Personal Decree against a Hin-
du Widow.
Baijun Doobey o. Brij Bkookun
LallAwasti ..L. Bep. 2 I
A. 97S ; X. L. Bep. 1 Cal.
133.
Postponing— Fresh Proclamation.
See Sale in Execution of Decree. 8.
Purchase -Money — Right to recover — on
Sale being set aside or Decree reversed
before Confirmation of Sale and Eviction
of Purchaser.
See Sale in Execution of Decree.
13. 17. 21.
Sec Sherifl'u Sale. 1. 2. 4.
SALE IN EXECUTION OF DECBEE-
amld.
Purchase -Money — Right to recover on
Eviction of Purchaser at a — under Act
VIII. of 1859.
See Civil Procedure Code, Act X
of 1877, 5 318.
Mvi.o-.I. L. Bop. 3 All. 299.
Reversed before Confirmation.
See Bale in Execution of Decree. SI.
Of Right, Title, and Interest of Hindu
Widow.
See Sale in Execution of Decree. 19.
Of Right of Occupancy Tenant.
See Act I VIII. of 1873, (j 9.
Umrao Begah ». Land Mortgage
Bank I. L. Bep. 1 AIL
647.
On Specially Registered Mortgage Bond.
See Sale in Execution of Decree. 6.
Of Undivided Share of Member of Undi-
vided Family-Effect of.
See Hindu Law- -Gift. 2.
Ballabh Das s. Sunder Das ..L
L, Bep. 1 AIL 429.
And seethe Index heading Alienation
of Ancestral Property— by
Bale in Execution of Decree
against a Iff ember of Undi-
vided Family.
1. Possession— Assignment."] On a sale
n execution of a decree, the property in the
thing sold passes to the purchaser; and there is
nothing in Hindu or English law which debars
third person from taking an assignment of
such property from the auction purchaser, albeit
never been reduced into possession by
Govind Raghunath v. Govind Jacoji.
Kemball and Pinhty, JJ I. L, Bep. 1 Bom.
600, 1876.
— Irregularity —Setting aside Sale-
Act VIII. o/ts59. I 157.] In a suit instituted
the 7th of September 1873 to recover posses-
n of certain property, and to eject the auction
purchaser thereof at a sale in execution of a
decree held on the 15th of February 1871, on
the allegation that the decree in execution
of which the property had been sold had
been reversed, and that the sale was therefore
void i it appeared that G. and M. obtained
D,„i„.db»Googlc
{ 1313 )
DIGEST OF CASES.
SALE IN EXECUTION OF DECREE
a decree against the plaintiff on the izth of
December 1864, which was reversed
zSth July 1865 by the District Judge, whose
decree in its turn was set aside on the 5th
Match 1866 by the Sudder Court which ordered
a new trial. On the 5th of May 1866, the
District Judge affirmed the decree of the origi-
nal Court. On the 3rd of December 1866, th(
High Court again set aside this Judge's decree
and ordered a new trial. On the 14th of
January 1867, the District Judge again affirmed
the decree of the Court of first instance, and,
no appeal being preferred, the decree b<
final. The decree- holders in the
the nth June 1866, took proceedings to ii
the decree of the 5th of May 1866. They
ed these proceedings on the 5th of July 1866,
and again on the 2nd June 1867, referring
each instance to the decree of the 5th of May
1866. On the 7th of November 1870, they
applied for the sale of the property in
referring in this application to the decree of the
5th of May :866. The notification of the
stated that the property was for sale in sati
tionofthe decree of the 5th of March
The sale took place on the 15th of Febi
1871, and on the 10th of March 1871, the
Judgment-debtor objected to the confirmati
the sale on the ground of the error ir
application for execution, but his objections
were disallowed and the sale confirmed : —
Held, that the sale ought not to be set aside
as the irregularity in applying for execution 01
the decree dated the 5th of May 1866 was ar
irregularity which did not prejudice the judg-
Per Oldfield, J.— With reference to § 357 of
Act VIII. of 1859. the suit was not maintainable.
Ghazi ». Kadir Baksh...I. L. Sep. 1 All.
312, 1876, F. B.
3. Period from which Title of Purchaser
dates— Confirmation of Sate— Liability of Pur.
chaser for Government Revenue.'} The defendant
became the purchaser at an execution sale of a
share in an estate, in which the plaintiff held a
share as zemindar and putnidar. The sale was
completed on the 30th September 1872, but the
defendant did not obtain possession till the
confirmation of the sale on the 5th May 1873
Between the date of the sale and of its conh>
mation, a considerable sum became due, in
respect of the whole property, for Government
SALE IN EXECUTION OF DECUKE-
,ntd.
; and, to prevent its being sold, the
plaintiff paid the whole amount of the revenue,
and then sued the defendant to recover (he
proportion due in respect of the share purchased
by her:—
Held, that the sale having been confirmed,
id the defendant having obtained a certificate
e interest of the judgment -debtor must beheld,
for the purposes of this suit, to have ceased from
the date of the sale and to have become vested in
the defendant, who was, therefore, the person
liable to pay the Government revenue in respect
of the share purchased by her; therefore, that
the plaintiff was entitled to recover from her the
payments which he made on account of such
share, with interest at 6 per cent, from the time
of such payment. Bhvkub Chcndeh Bukdo-
'. SotiDAMim Dabee I. T*. Rep. 9
Cal. 141, 1876, F.B.
'oney-Decree — Mortgage — Cove-
:(*.] The owners of the pro-
-ort^liitin IMS tothede.
by a bond which ^o>&ned a Petfonal J
covenant to pay the debt due, TrV 7 i
«t to alienate the property until pafcLrV }
[86S, the defendant obtained a mobiy^Sf 1
bond, and became himself the pi
chaser of the
property i
suit, at a sale ;
execution thereof held in 1871. In 1869, tl'
mortgagors had mortgaged the property to tli j
plaintiff, who now sued to foreclose :— '
Held, that the defendant's purchase could no
against or be held free from the plain tiff \
, but that the c
intiff v
s entitled t
*ee for foreclosure. The defendant's
only a money -decree, and the sale ui
did not carry with it the mortgage lien.bi
disposed of such rights and interests ;
belonged to the judgment-debtor ; and the defen-
dant, therefore, by his purchase at the aucttor
sale, stood in the place of his judgment debtor
ras bound by his acts, including the mort-
gage to the plaintiffs.
The condition In the defendant's bond against
ienation to others was merely personal to him,
and did not affect the right of a subsequent
srgagee in enforcing his lien. Ramu Naitan '
v. Subbaraya Sfudali (7 Mad. H. C Rep. 129),
Momtajoodeen Mahomed v. Rajcoc-mar Doss (14
Beng L- Rep. 408 ; S. C. 33 W. Rep. 1S7), and
Rajah Ram v. Bainee Madhoo (H. C Rep. N.
D,gltlzed by G00gle
{ 1345 ) DIGEST OF CASES. ( 1346 )
SALE IN EXECUTION* OF DECREE— SALE IN EXECUTION OFDECREE-
W. P. 1872, p. Si) dissented from. Khub
Chand*. Kaluaw Dass...I. L. Rep. 1 AIL
240, 1878, F.B.
Dissented from in, ..I. X. Rep. 4
Set Vol. 8, Col. osa.
S. C. under Parties to Suit. 1.
See 0, infra.
And see Mortgage. 40.
Ganpat Rai v. Sarupi...I. L.
Rep. I All. 440.
5. Specially Registered Mortgage Bend-
Act XX. of 1866, { S3— Drew.] The obligees of
a mortgage bond hypothecating certain
moveable property as collateral security for the
repayment of the debt, which was specially
registered under f 53 of Act XX. of 1S66,
obtained a decree against the mortgagor un-
der the provisions of that section, which decreed
their claim "against the mortgagor and the hy-
pothecated property." The plaintiff purchased
the property at a sate in execution of thi
decree. At the time of the sale, the defendant
was in possession of the property under a mort-
gage dated subsequently to the specially regis,
tered mortgage. In a suit by the plaintiff to sel
aside the mortgage to the defendant, and for
possession : —
Held, that a decree under j 53 of Act XX.
of 1866, is and can only be a mere money de-
cree, and that a sale in execution of such a
decree can only give the purchaser the rights
and interests of the judgment-debtor in the
property hypothecated, and that such purchaser
cannot claim in virtue of his lien to defeat a
second mortgagee. So much of the decree as
declared the property liable must be regarded
as null and void for want of jurisdic
Akue Raw l Nand Kishore.I. L. Rep. 1
All. 236, 1876, F. B.
6. Postponing Sale— Notice — Procla-
mation-Act VIII. 0/1859, ) *49-] In all case:
in which a sale in execution of a decree if
postponed to another day, it is necessary that
the formalities required by law should be goni
through afresh (unless it be that they have been
waived by the parties themselves). In alt su
cases afresh proclamation must be made givi
notice of the day to which the sate is adjoui
ed. It may be presumed, when such ootid
wanting, that there has been an absence of bid-
ders, from which alone substantial injury to the
contd.
judgment -debtor must probably have arisen.
Goopes Nath Dobev v. Roy Luckmeput
Singh Bahadur. AintHtMii Kennedy, J J ... I,
L. Rep. 3 CaL 542 ; 1 CaL Rep.
349,1877.
7. Sale of Decree charging Lands —
Interest in Immoveable Property,] A sale in
execution of a decree against the judgment-
debtors, of a decree obtained by the judgment-
debtors against a third person charging lands
for its satisfaction, is a sale of an interest in
immoveable property, to which the provisions
of Act VIII. of 1859 for ihe sale of immoveable
property will apply. Mussamat Bhawam
Kuar o. Gulab Rai. Stuart, C.].,and Oldfield,
J...I. L. Rep. 1 All. 348, 1877.
8. Material Irregularity— Sale by Civil
Court of Khalisa Mahal — Act VIZI, of 1859,
§ 248— Act XIX. of 1873 i 3, a. I.] Where, in
execution of a decree, against a judgment-
debtor, a Civil Coort sold certain forest land,
which, at the time of the sale, had been granted
to and was in the possession of the judgment-
debtor, as a Khalisa Mahal, on which, under the
terms of the grant, no revenue was payable by
the grantee for (he first three years, during
which period of exemption the sale took place,
but became payable for the fourth and follow-
ing years ; and where the place where the sale
was to take place was not described with suffi-
cient distinctness, and the proclamation of sale
was not made on the spot ; —
field, that the sate was void, both on the
ground of the above irregularities, and because
the sale should not have been conducted by the
officer of the Civil Court, but should have been
held by the Collector, the estate being land pay-
ing revenue to Government within the meaning
of § 248 of Act VIII. of 1859. Because no
revenue was payable at the time of actual sale,
it did not follow that the estate was not a reve-
nue-paying estate within the meaning of that
section. The term " paying revenue" in § 248,
is used in contradistinction to " revenue-free,"
and applies to all lands known as " Khalisa."
When the land granted on such terms as in the
present case is considered to be a mahat as de-
fined in , 3, CI. i., of Act XIX. of 1873, and
subject to all conditions attaching by law to such
terms, the remission of revenue for a few years
on the land, will not alter its general character
D,gltlzed by G00gle
( 1847 ) DIGEST OF CASES. ( 1818 >
SALE IN EXECUTION OF DECREE— SALE IN EXECUTION OF DECREE -
as Khalisa or revenue-paying ; the revenue still
remains assessed. Showers «. Seth Go bind
Dass. Stuart, C.)., and Pearson, J... I. L. Rep.
1 AH. 400, 1877.
9. Money.Deeree— Mortgage— Right of
Purchaser."] The plaintiff, the obligee of a bond
which hypothecated certain immoveable property
as security for the repayment of the debt, and
prohibited any transfer until the money
paid, obtained a money-decree upon the bond
against the obligor, and became himself the
purchaser of the property at the sale in en
Before the date of the institution of the
obligor leased the property to the defendant for
twelve years. The sale proceeds were more
than sufficient to pay the debt due on the bond.
In a suit by the plaintiff to set aside the lease to
the defendants, as having been made fraudulently
and collusively without his knowledge with the
view of depriving him of his right, and to enforce
bis lien under the bond : —
Held, that the sale proceeds having beensuffi
cient to discharge the debt to the plaintiff, he
could not, as auction purchaser, fall back on the
collateral security for a debt which no longei
Held, also, that the lease was not fraudulent or
collusive. If it was prohibited by the terms of
the bond, the plaintiff might have proceeded
against the property hypothecated by the bond
wben he first instituted his suit, and possibly
might have successfully impleaded thedefendant.
Not having done so, and his debt being satisfied
he could not question the tease as being an in-
fringement of the hypothecation of the bond.
Semble, that even if the sale proceeds had not
been sufficient to satisfy the debt, the plaintiff
could not, according to the principle of Khub
Chand v. Kalian Das (I. L. Rep. l All. 240),
avail himself of the collateral security to avoid
the lease. Balwant Singh v. Gokaran Pra-
sad. Stuart, C.J., and Sfantie, J....L L Eep.
1 All. 434, 1877.
See 4, supra.
And see Mortgage. 40.
Ganpat Rai v. Sarupi I. L.
Rep. 1 AIL 446.
10. — — Personal Decree against Father on
Mortgage Bond— Sale of Property not included
in Mortgage — Partition — Fight of Sons.'] A
decree for money due on a mortgage bond was
obtained against S.D. alone, the father of the
present defendants, in a suit to which the de-
fendants were not parties. The judgment in
that suit declared that the property mortgaged
was liable for the debt sued for. In execution
of that decree, the property mortgaged was at-
tached, and an application by the defendants for
the release of the property having been refused,
they filed a suit for partition and prayed for the
release of the attached mortgage property. In
that suit they obtained a decree for partition,
but their prayer for the release of the mortgaged
property from attachment was disallowed, on the
ground that they were bound by the mortgage,
the debt having been incurred, for family pur-
poses. Subsequent to the decree for partition,
id when the defendants were divided from their
father 5. D-, the property in question in the pre-
uit, which formed no part of the mortgaged
property, was attached and sold in execution of
the decree against S. D., on the mortgaged bond,
and purchased by the plaintiff's father, the sale-
purporting to be, as usual, of the right, title, and
interest of the judgment -debtor. In a suit by
the plaintiffs to recover possession of the whole
of the property so sold : —
Held, that the plaintiffs had only acquired the
right, title, and interest of S. D. in the property
sold. There was nothing in the litigation on the
mortgage bond to indicate that it was intended
enforce the debt against the whole of thefamily
property as a debt due from the family. The
adjudication in the partition suit only covered
then in question, »«., the mortgaged
property. Because it was held in that suit that
then attached, which did not include
the property now in question, was duly attached
.nd liable to be sold, it did not follow that
ither property of the family was so liable, and
this notwithstanding that the securities sued
upon included all such property.
Per Innes, ]■ — The prayer of the present de-
ndants in their partition suit for release of their
shares of the mortgaged property from attach-
;nt should have be4h granted. The creditor
had elected to sue their father, S. D., atone, and
whatever might be the obligations of the other
members of the family to bear their share of the
debt contracted by S. D., that was a matter
them and him, of which the creditor
could not take advantage under his decree,
which was a mere money decree against S. D.
D,gltlzed by G00gle
DIGEST OF CASES.
( 1850 )
SALE IN EXECUTION 07 DECREE-
toHtd.
It might have been open to the creditor so to
have framed his suit by including the other
members of the family, and by asking that the
debt might be declared to be a debt chargeable
on the entire family, to have obtained a decree
making the joint family liable in persons and
property, but having failed to do so he could not
afterwards seek to extend the operation of the
decree beyond the proper and limited scope of it,
and the Court in trying, in the partition suit, the
question of the liability of the sons to discharge
the debt due by their father under the decree on
the mortgage bond, in effect instituted a new
suit against them. Dindyal Lai v. Jugdeep
Narrayana Singh (I, L. Rep. 3 Cal 198) followed.
Venkataramayyan ». Venkatasubbramania
Dikshatar 1 L. Sep. lMad. 388, 1877,
F.B.
11. Material Irregularity— Act VIII. of
1S59, f 240— Proclamation of Sale.] The property
of a judgment -debtor was proclaimed and adver-
tised for sale on a certain day. The proclamation
stated that the property to be sold was a two
anna eight pie share in a certain talook. Before
the day of sale a portion of the property adver-
tised to be sold was released from attachment.
No fresh proclamation was issued; but on the
date of the sale, the purchasers who had assem-
bled to bid were informed, at the time and place
of sale, that a portion of the property had been
released, and the sale took place on the day
originally fixed : —
Held, that the omission to publish a fresh
proclamation was a material irregularity. The
judgment-debtor was entitled to have a pro-
clamation, which should state accurately the
property to be sold, published thirty days be-
fore the sale. The irregularity was of such a
sort that very little evidence would satisfy the
Court that the judgment-debtor had sustained
injury by reason of it ; the case was therefore
remanded for the Court executing the decree
to ascertain from the evidence on record,
and from any further evidence that might be
adduced by the parties, whether the judgment-
debtor had sustained any substantial injury
by reason of such irregularity- Skib Prokash
Singh v. Sardar Dayai. Singh. White and
Milter, J] I. L. Hep. 3 Cal. 044 ; 2 Cal.
Rep. 260, 1878.
18. Immoveable Properly— OmAwj«ii«n
of Third Person— Obstruction to Purchaser— Ad
SALE IN EXECUTION OF DECREE—
VIII. of 1859, § 269-Art X. of 1877, %% 3iB
3'9 334i 335'] There is no provision in the New
Civil Procedure Code, Act X. of 1877, similar
to that contained in , 269 of Act VIII. of 1859,
which enabled the Court executing a decree to
inquire into a complaint, made by a person other
than the defendant, on the ground of disposses-
sion in 'the delivery of possession to the pur-
chaser of immoveable property sold in execu-
tion ; and therefore the remedy of a person so
dispossessed is by regular suit. In such a state
of the law, it being obviously unfair for the
Courts, which cannot now summarily determine
the relative rights of the parties, to insist on
putting an auction purchaser into possession,
in spite of the resistance or obstruction of a third
party having no connection with the judgment-
debtor ^ordinarily, officers should be directed to
abstain from any act of dispossession in such a
case, leaving the execution purchaser to ht>
A., a decree -bolder, purchased certain pro-
perty belonging to B., his judgment-debtor, at a
sale in execution of his decree, and delivery of
possession to him was ordered. A stranger to
the suit thereupon presented a petition to the
Court executing the decree, setting up a title to
a moiety of the property in question, and prayed
for an investigation into his right, and for re-
covery of possession on the ground that he had
been dispossessed by A 1 —
Held, that the application could not be main-
tained. Harasatoollahb. Brojonath Ghosh.
Markby and Prinsep. J] I. L. Rep. 3 Cal.
739 ; 1 Cal. Rep. 517, 1878.
16. Right of Purchaser to recover
Purchase- Money on Sale being set aside — Fraud
of Decree-Holder — Minor — Caveat Emptor —
Costs.' The defendant T. gave the defendant
H. a bond for the payment of money by which
she purported, as guardian of her minor son,
to mortgage certain immoveable property of
the minor. H. sued T., in her own right and
as guardian of her son, on this bond, and
obtained only a money-decree against T. per-
sonally, in execution of which he was allowed
by the Court to bring to sale the property
of the minor. At this sale the property was
purchased by the plaintiff with full knowledge
th*t he was purchasing the minor's property,
and without making any inquiry whether the
D.gmzed by G00gle
( MSI )
DIGEST OF CASES.
SALE IN EXECUTION OF DECREE
sale was authorized by the decree. The min
brought a suit for a declaration thai the sale
was invalid, and obtained possession from the
plaintiff. The plaintiff then sued H. and T. to
recover his purchase -money, and the costs in.
mired by him in defending the minor's suit,
Held by Pearson, Turner, Spanki'e, and Old-
field, J].— That the evidence being insufficient
to justify the inference that the plaintiff was in
any way a party to or cognizant of the fraud of
T., the decree-holder, the mere fact that hi
knew he was purchasing the property of a minor
and did not inquire whether the sale was autho
rized by the decree, did not deprive him of hi;
right to recover back his purcnase-money from
the decree-holder on the sale being
and that, being innocent of fraud, and having
purchased in the bona fide belief that the
property was properly saleable, he was entitled
to recover his purchase-money from the decree-
holder, through whose misfeasance the order foi
sale was obtained, the sale having been virtually
set aside so far as regards the rights and inter-
eat of the minor, which fact distinguished this
case from Kelly v. Cobind Doss (H. C. Rep.
N. W. P. 1874, p. 168).
Held, also, that though the plaintiff was en
titled to recover from the decree-holder hi
purchase- money and reasonable interest, hi
could not recover the cost of defending tin
minor's suit, in the absence of any guaiante<
for those costs from the decree- holder, as h<
ought not to have defended that suit.
Held, by Stuart, C.J.— That the bad faith of
the decree-holder was immaterial, unless the
plaintiff could show that he became the pur-
chaser of the minor's property in the honest be-
lief that it could be legally sold in execution of
the decree ; and that, under the circumstances
of the case, and having regard to the plaintiff's
own evidence, he must be taken to have had not
only notice of the minority of the person whose
property he purchased, but as having lent him-
self to a proceeding not only illegal and invalid
in itself, but grossly in fraud of the minor's rights,
and he was, therefore, hot entitled to recover his
pure base -money : and even assuming that he
was not guilty of any fraud, yet, having pur-
chased with the knowledge that the property was
that of aminor, and without ascertaining whe-
ther the sale was justified by the decree, he
BALE IN EXECUTION OFDECKBE-
could not recover his purchase money. Ma.
kundi Lal .. Kaunsila...„.I. X. Hep. 1 AIL
668, 1878.
S. C. under Maxima — Caveat Emp-
tor. 1.
14, Surplus Proceeds— Lien— Ad VII 1.
of 1*59, § a7l— Priority. 1 On the, 15th of Janu-
ary 1876, M. obtained a decree for money which
declared a lien on certain immoveable property
of the judgment -debtors created by a bond dated
the 17th of July 1873. On the 21st of January
1876, P. obtained a decree for money against the
same persons, which declared a lien on the same
property created by a bond dated the a8th of
September 1875. On the 13th of April 1876,
the property was attached in execution of both
these decrees. At this time It. held a decree for
money against the same persons, dated the nth
of November 1875, which declared a lien on the
property created by a bond dated the 37th
of October 1874. On the 2nd of June 187S, It.
pplied to the Court that the surplus proceeds
of the sale -proceeds, after satisfying the decree
of the 15th of January 1876, might be attached
execution of the decree of the nth of Novem-
ber 1875, and be paid to him. The Court made
an order accordingly. In a suit by P. against
It. to recover a portion of the money paid to
him under such order, on the ground that as an
attaching creditor, the plaintiff was entitled to
have his claim under the decree of the 21st of
January 1876, satisfied in full:—
Held, that M., as holder of the decree of the
nth of November 1875, was entitled to share in
the sale-proceeds under f 271 of Act VIII. of
1859, as one who had, prior to an order for dis-
tribution, and before sale, taken out execution
of his decree against the same judgment-debtor
obtained satisfaction thereof, and that as
as well as the decree which declared it
were prior in date to the lien and decree held by
the plaintiff, he was entitled to share before him.
Singh v. Paras Ram. Pearson and
Oldfield, JJ L L. Eep. 1 AU. 727, 1878.
16. Personal Decree against Father —
Sale of Family Property — Suit by Son to recover
his Share."] The plaintiff's father borrowed money
) enable him to sue for the recovery of certain
lands, and being unable to repay it, judgineat
was obtained against him personally in a suit to
which his son, the plaintiff, was not made a
party, and the lands in suit were sold and pur.
D,gltlzed by G00gle
{ 136* )
DIGEST OF CASES.
BALE IN EXECUTION OF DECBEE-
chased by the defendant st the Court sale. The
plaintiff sue d to set aside the sale of one-half of
those lands, on the ground that they formed hi;
share, that he was a minor when hia fathei
incurred the debt, and that his share was noi
liable for debts incurred by his father :—
Held, that the decree obtained in the suil
against the plaintiff's father showed that the
debt was the personal debt of the plaintiff':
father, and that the decree was against him per
son ally. Under that decree, only his rights and
interest in the property could be sold, and no-
thing beyond his rights and interests would pas:
to the purchaser. Even if the debt had not been
a personal debt, the suit was not framed to
enforce the debt against the whole property,
and the plaintiff, therefore, was entitled
recover his share. Dindiyal Lai v. Jagdip
Narain Sin?h (I. L. Rep. 3 Cal. 198) followed.
Venkatasahi Naik v. Kue PAIYAS...I. L, Hep,
1 Mad. 354, 1878, P.B.
16. Sail for Recovery of Purchase-
Mousy—Caveat Emptor— Act VIII. of 1859,
S 257-] The right, title, and interest of G. were
attached and advertised for sale, under separate
orders, in execution of a decree held by 7*., and
in execution of a decree held by P. and R. The
same day was fixed for the sale in execution of
both decrees, and on that day, the officer con-
ducting the sale, at first put up the property in
execution of the decree of T., and the property
was purchased by the decree- holder. He then
again put up the property for sale In execution
of the decree at P. and R., whose agent (the
appellant) purchased it. The Court executing
the decrees confirmed the sale in execution of
77 1 decree, and delivered a sale certificate to the
auction purchaser. It also confirmed the second
sale, disallowing the appellant's objection to such
confirmation, and ordered the purchase-money
to be paid to the decree-holder ; but it held that
as the sale to the purchaser in execution of TVs
decree had been confirmed and a certificate
issued, it could not give possession to the pur-
chaser in execution of P. and R.'s decree, and
therefore refused to grant a certificate in respect
of that sale. In a suit brought by the appellant
against P. and S. to recover the purchase-money
paid under the second sale s —
field — -distinguishing the case from those in
which it had been held that when the right, title,
and iaterett of a judgment -deb tor in a particular
SAXE IN EXECUTION OF DECREE—
amid,
property has been sold, there is no warranty of
title, and therefore that he cannot recover his
purchase- moo ey if it turn out that the judgment*
debtor had no interest,— that in this case the
interest advertised for sale had, immediately
before the sale to the appellant, been already
sold by the Court in execution of the decree of
T., and when that sale was confirmed the subse-
quent sale was practically disallowed and nulli-
fied, The Court had advertised for sale the
interest of the judgment- deb tor as it existed
before the sale in execution of T.'t decree.
When that sale was declared absolute, the Court
could not confirm to the purchaser at the second
sale the interest it had advertised for sale. The
rule of caveat emptor did not apply, for the interest
offered for sale was the interest advertised, and
if the first sale had been disallowed, that interest
would have passed to the purchaser at the second
sate ; but when the first sale was confirmed, the
second sale could not be carried out, for the
est advertised had been already sold, and
the appellant, therefore, was entitled to recover
-he purchase -money.
The provisions of § aST of Act VIII. of 1859
apply to applications made under § 356, and to
those only.
Held, therefore, that as the appellant objected
the confirmation of the sale to himself, on the
ground that the Court was not competent to
ifinn a sale which had by its previous order
been nullified, and not on any of the grounds
ioned in j 256, the appellant wai not pre-
cluded by I -157 Act VIII. of 1859 from maintain -
ng the suit The officer conducting the sale*
vas not bound to sell the property once for all
n execution of both decrees, and his selling such
property separately was therefore not any irre-
gularity in tbeconductof the sale. Thr Court
Waedh v. Gava Pehsad. Tumtr aod
Spankie, JJ L L. Hop. 3 All 107, 1879,
S. C under Partioa to Salt 0.
17. Suit to recover Purchase-money— Re.
te Sale at aside, after Judgment -Debtor1!
Interest in Surplus Proceeds had been sold in Exe.
cutiort.~\ The appellant's right, title, and interest
mm of Rs. 35,000 deposited with the Collec-
i his share of the surplus proceeds of an
: sold for arrears of revenue, was, on chez.;th
November 1867, attached in execution of a
money decree, and, on the iSth February 1868,
sold to the respondents for Rs. 8,000. which
Digitized byGOO^Ie
DIGEST OF CASES.
SALE IN EXECUTION OF DECREE—
contd.
sum was thereupon paid into Court and distri-
buted among the attaching and other execution
creditors. The revenue sale was subsequently,
at the instance of the appellant, ordered to be set
aside, and thereupon the estate was restored
to the appellant and his co- share rs ; and the
purchase- money restored to the purchasers, in-
cluding the said Rs. 35,000, which the Collector,
pending the litigation, had refused to pay the
respondents.
In a suit by the respondents to recover the
said sum of Rs. 8,000, with interest from the
date of payment thereof into Court :—
Held (reversing the decision of the High
Court), that the suit must be dismissed. What
the respondents bought was the appellant's
interest in the surplus proceeds, subject to the
contingency of his succeeding in his suit to set
aside the revenue sale (of which the respondents
had notice, at least, before the sale was confirm-
ed), in which event that interest would become
nil. There was no warranty or contract on the
appellant's part. The sale was had under pro-
ceedings in invitum and against his express
protest. The parties were at arm's length. The
appellant was free to prosecute his suit; the
respondents free to enforce their rights should
he fail, to the uttermost farthing. What they
bought, then, was the chance of getting
Rs- 35,000 for Rs. 8,ooo, dependent on the hap-
pening or non-happening of a certain event.
Although the appellant had benefited by the
Rs. 8,000 paid by the respondents, there was no
obligation on his part, express or implied, to
repay the same. Such payment was voluntary,
against the will of the appellant, and made in
the course of a speculative transaction, in which
the interest of the appellant was directly oppos-
ed to that of the respondents.
It is not in every case in which a man has
benefited by the money of another, that an obli-
gation to repay that money arises. The ques-
tion is not to be determined by nice consider-
ations of what may be fair or proper according
to the highest morality. To support such a
suit there must be an obligation, express or
implied, to repay. It is well settled that there
is no such obligation in the case of a volun-
tary payment by A. of B.'s debt. Still less
would the action lie when the money had been
paid, as in this case, against the will of the
party for whose use it is supposed to have been
paid. Ram TukulSinoh v. Bisseswar Lall
Sahoo .. L. Rep. 3 I. A. 131; 16 Ben g. L.
It. 308 ; 23 W. B- SOS, 1875.
See Co-Sharers of Patni Talub.
Mohesh Chundbb Bannebjeb •.
Ram Pursono Chowdhbv ...
I. L. Hep. 4 Cal. 539.
See • Bight to recover Govern-
ment Revenue paid daring
Wrongful Possession.
Tiluck Chund v. Soudahim
Dasi I. L. Rep. 4 Cb.1.
see.
Srbenaraln BagcheBv. Smith. „
I. L. Rep. 4 Cal. 807.
18. Review of Order disallowing Ob-
jection to — Material Error in Notification — In.
adequacy of Price— Waiver of Irregularity.] In
execution of a "decree against the appellant, his
estate was attached, and a notice of sale was
issued fixing the sale for the 5th of August
1868. The notification of sale stated the Gov-
ernment revenue to be Rs. 3,146, instead of
Rs. 8,146. On the application of the appellant
" that a postponement of one month be granted,
the attachment and the notification being main.
tained," it was ordered that the postponement
be granted, and that in the event of the judg-
ment-debtor not paying the amount decreed,
the estate should be sold, " without the issue of
The estate was eventually, on the 9th of
September 1872, sold to the respondent, under
the execution. On the 1st October 1872, the
appellant, under the provisions of § 256 of Act
VIII- of 1859, made objections to the sale, one
of such objections being the erroneous state-
ment in the notification of sale as to the
amount of Government revenue. The Subor-
dinate Judge overruled the objections, but did
not confirm the sale, under J 257 of Act VIII.
of 1859. The appellant then applied to the
Subordinate Judge for a review of his decision ;
and the Subordinate Judge, without giving
notice to, or summoning, the respondent, granted
the review, and set aside the sale on the ground
of the above material error, and of inadequacy
if price. Subsequently the Subordinate Judge
efused to confirm the sale or grant a certificate.
D,„i„.db»Googlc
DIGEST OF CASES.
( 1SGS )
BALE IN EXECUTION OF DECREE—
The High Court, upon an application by the
respondent under Stat. 24 and 15 Vict., C- 104,
§ 15, considered the objections insufficient, and
directed the Subordinate Judge to confirm the
sale.
Held, on appeal to the Privy Council, that
though the fact that the sale had been effected
at a low price would not of itself be a ground
for refusing to confirm the sale, yet that the
above error in specifying the amount of the
Government revenue was an irregularity for
which the sale might have been set aside,
provided the judgment-debtor had satisfied the
Court that he bad sustained a substantial injury
in consequence of it (see f 249, Act VIII. of
1S50) ; but that the above petition of the re-
spondent amounted to an admission on his part
that the notification ■■..■• correct, or that, at
any rate, there was no such mistake or irre-
gularity as would be likely to mislead, and
that the High Court was tight in ordering the
sale to be confirmed. Girdhari Singh v.
Hurdo Narain Singh L. Rep- S I. A.
230, 1876.
19. Right, Title and Interest of Hindu
Widow.] In 1S50, K. brought a suit against the
appellant, the widow of A., upon a bond executed
by A. in 1854, and recovered a decree against
the appellant on the 24th of December 1859. In
1863, the share of ajaliar, which had belonged
to A., was sold in execution of this decree
purchased by K. At the time of the sale, the
share in the j'atiar belonged to the two minoi
sons of A., and was in the possession of the ap.
pellant on their behalf. On the death of the
two sons, unmarried and without issue, A. was
in possession as their heir. In the heading of
the decree of the 24th of December 1659, A. was
described as the widow of A. and mother of two
minor sons. The decree was simply a money
decree directing " the defendant to pay to the
plaintiff the amount in claim with interest and
costs," and recited that the suit was brought to
recover money due under a bond. Nei the rthe sale
certificate, proclamation, nor advertisement were
produced, but a fermana from the Munsiff to the
Nazar was produced which referred to the sale-
proclamation, and in which the parties were
described merely as " decree- holder" and
" judgment -debtor," and described the interest in
the property intended to be sold as the " right
and possession of the debtor" in the share of the
SALE IN EXECUTION OF DECREE—
jalkar. In a suit brought by the representative
of K. to obtain possession of the property pur-
chased by K. at the sale in execution of his
decree;—
Held, that K. did not by his purchase acquire
the interest of the minor sons in the property
sold. Though AT.— knowing that the debt for
which the decree was passed was a debt of A.,
and that the appellant had at the time of sale no
interest in the property except as representing
her minor sons — may have intended to purchase
the rights of the minor sons, yet the question
was to be decided on the documents which
would properly come to the notice of a purchaser
who had not AYs special means of knowledge'
and regard must be had to the inferences which
such a purchaser might reasonably and .legiti-
mately draw therefrom. Taking the perwana as
correctly representing the interest advertised to
be sold as that of the debtor, a reference to the
decree would not show an intending purchaser
that the suit was on a bond of the appellant's
husband, or that he was the real debtor, and the
intending purchaser would not, therefore, be
justified in concluding that A. was the real
debtor, or that the interest put up for sale was
that of A.'s minor sons.
The doctrine that, where a party sells property
of which he is not the owner, hut afterwards be-
comes the owner, he is bound to make good the
sale out of his subsequently acquired interest,
does not apply to a case where the sale is com-
pulsory, being made through the Court at the
instance of the execution -creditor. Alukmoneb
Dabeb u. Banee Madhub Chuckkkbutty.
White zn& Milter, ]].„1, L. Rep. 4 Cal.677;
8 Oal. Rep. 173, 1878.
Bai]vn DooiiKY «. Brij Hhoo-
kun L. Rep. 3 LA.
876; LL. Rep.
10*1.188.
80. — Deere* against Representative of
Deceased Mahomedan — Right of Purchaser.)
B. Jr., a Mahomedan, had incurred debts for re-
pairsto a house of which he owned an 8-anna
share, and after bis death his daughter 5,, who
was entitled to a j-anna share of his estate, and
who bad taken charge of his estate and obtain-
ed a certificate under Act XXVII. of i860
D.gmzed by G00gle
DIGEST OF CASES.
directed further repairs to be done to the house.
The debts thus incurred by B. R. and 5. not
having been paid, the creditor brought a suit
against S., as representing her father's estate,
to recover them, and having obtained a decree,
the house was sold in execution thereof, and
purchased by//, in May 1874. B. R. at his
death left also a. sister who was entitled to a
3-annas share of his estate, but who had been
for some years absent on a pilgrimage at Mecca.
On her return, she, in January 1874, sold her
interest in the house to M. In a suit by M.
against £ and H. for possession of the share so
told to him s—
Held, that S. did not represent the whole
estate of B. R., and the share purchased by the
plaintiff did not pass under the execution sale to
H. ; the plaintiff, therefore, was entitled to
recover. Hendry*. Muttv Lall Dhur. Garth,
C.J., and Birch, J ..I. L. Bep. 3 Cal. 39S,
1878.
91. Sale under a Decree reversed in
UPPeal before Confirmation— Execution—Juris-
diction — Purchase — Title.'] The plaintiffs
title to the land in dispute was derived from a
purchaser at a Court's sale. The decree under
which the sale took place was reversed in
appeal. The reversal took place subsequently
to the sale, but before the order was made
confirming the sale ■ —
Held, that from the moment the decree was
reversed, the Court which made it ceased to have
jurisdiction to take any further steps to execute it.
Though the Court, when it confirmed the sale, was
probably not informed that its decree had been
reversed, and the purchaser was probably ignorant
of it, yet the act of the Court, in completing the
■ale, was none the less without jurisdiction,
and, being without jurisdiction, could confer no
title.
If a decree be reversed after a sale under it
has become absolute, and a certificate has been
granted to the purchaser, the title of the pur-
chaser is not affected by the reversal of the
A purchaser is bound to satisfy himself at
the jurisdiction of the Court to order a sale* and
this obligation continues until the sale is com.
plete. Before be applies to the Court to confirm
the sale, and grant him a certificate, the pur-
chaser ought to ascertain that the decree under
which the sale was ordered is still in existence-
Basappa Ma lappa o. Dhundya ShIVLIKGVA.
Melvill and Kemiall, JJ...L L. Rep. 3 Bom.
040, 1878.
SALE OF FIXTURES IN EXECUTION
OF DECREE OF SHALL CAUSE
COURT.
See Fixtures.
Miller •. Brindabuk L L.
Rep. 4 Cal. 948.
BALK OF GOODS — Implied Warranty of
Quality— Transfer of Property in Goods — Con-
tract Act IX. of 187a, §§ 18, 19, 78,86, 117, IlS
— Ordinary Diligence — Destruction of Goods by
Fire after Sale.] The plaintiff sold by sample
to the defendants the whole contents of a certain
golah of a shop at Kallygunge, containing 975
maunds of " Pauah Padi Balam" rice, at a cer-
tain rate. The defendants paid the plaintiff
earnest-money, and agreed to remove the whole
rice, after weighing, on or before a certain date-
Subsequently to this contract the defendants
transferred their rights to one P., whose servant,
on the i6tb of September, weighed out of the
golah in question 130 maunds, and took delivery
thereof, paying the plaintiff Rs. 1,000. But he
subsequently refused to take delivery of the rest,
alleging that the quality of the rice was inferior
to that contracted for. The golah was subse-
quently accidentally burned down, and the plain-
tiff brought this suit to recover the balance of
the purchase-money after deducting the payment*
made, and the amount realized at a sale of the
damaged rice remaining after the fire. The
defendants contended that (1) the property in
the rice did not pass by the contract, and, there-
fore, that the risk was with the plaintiffs; and
(a) that the contract was by sample, and, the
quality of the rice in the golah was inferior to
that of the sample. The lower Appellate Court
held that there had been a breach of warranty
in respect of the quality of the rice contracted to
be sold. While agreeing with the Court of first
instance that the sale was by sample, the District
Judge held, that even if the sale had not been fay
sample! yet that, having regard to the contract
price and the price of rice ruling in the market,
there was an implied contract that the rice sold
should be of a particular kind, vis., Chaitrt
D,gltlzed by G00gle
( 1881 )
DIGEST OF CASES.
BALE 07 OOODS— tontd.
Pancki Pads, and tbat the rice in the golah was
not of the description good Chaitto Panchi Padi,
and dismissed the suit : —
Held, that there was no error in law in the
finding of the District Judge in respect of the
implied warranty (see Contract Act IX, of 1872,
*l>3. ■!■*)■
Held, also, that under § 78 of the Contract Act
the ownership in the rice passed to the purcha-
sers, because the contract for the sale was"of
ascertained goods," the latter having paid the
earnest. money and taken delivery of a portion of
it. Nor did the fact that the rice remained 1
weighed affect the question. So far as
vendors were concerned nothing remained to be
done on their part to the rice sold "for the
purpose of ascertaining the amount of the price."
The rice was to be weighed for the satisfaction
of the purchasers. The ownership in the rice
sold, therefore, passed to the purchasers ; conse-
quently, under § 86, the risk of loss also passed
to them. And the omission by the plaintiffs
to take the course open to them under f 107, of
selling the rice at the defendants' risk on the
refusal of the latter to take delivery, did
affect the plaintiffs' right to recover the balance
of the purchase-money, the breach of warranty
as to the quality of the rice sold being no an
to the suit, except for the abatement of the
The sale having been completed, and the
Ownership with the risk in the rice sold having
passed to the purchasers, the latter could
rewind the sale if the breach of the warranty
would bring the case within the provisio
of , 19 of the Contract Act ; and the defendai
were precluded from resting their defence
that section by reason of its first exception, 1
cause they resided near Kallygunge, and might
have discovered the truth with ordinary diligence.
Shoshi Mohun Pal Chowdhhv v. Nobo
Km 3 h to Poddar. Milter and Prinsep, JJ. ...
I. L. Sep. 4 Cal. 801, 1878.
SALS BY GUARDIAN- Certificated and
Uncertificated — Guardian — Powers of.
See Alienation by Guardian, 8.
RamChundbro. Brojonatr...
I. L. Bop. 4 Cal. 720.
See Mortgage. 80. 81.
Abhaser Begum t). Moharanee
Rajkoop.,,1. L. Rep. 4 OaL
88.
BALE BY GUARDIAN etmtd.
Drbi Dutt v. Suboodra Bibi ..
I. L. Bop. 3 Cal. 288.
See Hahomedan, Law— Bate by
Guardian.
Hasan Ali e- Mehdi Hussain..
I. L. Rep. 1 AIL 838.
See Review. 10.
Madho Dass v. Rukmah Serah
Sinoh L L. Rep. S All.
887.
Unauthorized — Purchaser's Lien for Pur-
chase-Money expended in Payment of
Mortgage.
See Lien. 1.
KUVARJI V. MoTI HAR1DAS...L I>.
Rep. 8 Bom. 834.
Act XL of 1S58O The mother and natural
guardian of a Hindu minor, though not ap-
pointed under Act XL. of 1858, when acting
bon&fitU, and under the pressure of legal neces-
sity, may sell his ancestral lands, to pay ances-
tral debts and to provide for the maintenance
of the minor. Soonder Narrain v. Bennud
Ram. JacBson and Tottenham, JJ ..L L. Rep.
4 Cal 78, 1878.
Note. — The property was of small value, and
the suit was by a purchaser from the minor of
the right to dispute the sale ; but Jackson, J., at
p. 78, says — " It is contended that no guardian
acting as what is called in this judgment (under
appeal) a natural guardian can exercise higher
powers than a guardian appointed under the
law ; that is to say, the power of a natural
guardian is limited to granting leases for a
period not exceeding five years, and such
guardian must apply to the Court for sanction
even in cases of legal necessity. I am not
aware of any sanction of the law for that
contention • • • and it appears to me that
no such position is warranted by law."
SALE BY HINDU WIDOW — of Im-
moveable Property of Husband to pay
his Time-barred Debt— Valid for her
Life.
See Hindu Lav— Alienation by
Widow. 8. .
Bahahna v. Parbuu.,.1. L. Rep.
8 Bom. 67.
Diarized by Google
{ ISM )
DIGEST OF CASES.
( MM )
BALE OP HINDU WIDOW'S BIGHT,
TITLE, AND INTEREST, IN
EXECUTION OF PERSONAL
DECBEE AGAINST HEB-Rights
of Reversionary Heir and Execution
Purchaser.
Set Sale in Execution of Docren. 19.
Bauun Doobev *. Brij Bhoohun
Lall Awastv...L. Rep. 2 I,
A. S75 ; I. L. Rep. 1 Cat.
133.
BALE OF LAND.
i In the Mofussil under Power of Sale in
Mortgage Deed.
See Mortgage. 33. 33.
PlTAlIBER V. VANMALI I. L.
Hep. S Bom. 1.
Jacjivah v. Shridhar I. L.
Rep. 9 Bom. 9S9.
BALE OF LKiUOUS— Illicit.
See Illicit Sftlo of Liquor*.
Empress v. Seymour.. I. L.
Rep. 1 All. 830.
Empress b. DHARAMOAS...Ibid.
030.
Empress i.Mahindra Lai. .Ibid.
038.
BALE OF MORTGAGED PROPERTY
FOB ABBEABS OF GOVERN-
MENT BEVENUE OB ZEMIN-
DABT BENT— Right of Mortgagee
to prevent — by Payment thereof — Charge
on the Property.
See Co-Sharers of Patni Talook.
Mohesh Chunder *, Ram Pur-
sono I. L. Bep. 4 Cal.
S30.
SALE OF MORTGAGED PROPERTY
TO DIFFERENT PERSONS - Lia.
bility to Contribution, when Debt paid by
One.
Set Contribution, S,
HoTHOORAKATH*. KriSToKUMAR.
I. L, Bep. 1 Cal. see.
BALE UNDER MORTGAGE WITH
FOWEB OF BALE— EFFECT OF—
Right of Second Mortgagee to Purchase.
See Mortgage. 34.
Rajah Kishendatt Raw o. Rajah
Mumtaz A i.i KHAN...L.Bep.
6 I. A. 14D, 160.
SALE OF PATNI TENURE FOB AB
REABB OF RENT-Suit to set aside
— Publication of Notice, Date of.
See Bong. Beg. Vffl, of 1879, % 8,
01 2.
Matungee Churn v. Moorrary
Mohun.,.1. L.Bep. I Cal
176.
BALE BY SHERIFF UNDER WRIT OF
FIERI FACIAS— Right of Purchaser
at — to recover Purchase- Money on Evic-
tion on Sale being declared Void.
See Sheriff's Bale. 1. 2. 4.
Dorab Ally Khan a. Khojah
MoHEEOODDEEN I. L-
Bep. 1 Cal. 63 ; I. L.
Bep. 3- Cal. 808 ; L
Rep 6. 1 A. 118.
Framji v. Horuasji-.I. L.
Rep. 2 Bom. 268.
Right of Purchaser without notice of Mort-
gage at — held at Instance of Mortgagee.
Sec Sheriffs Sale. 3.
I. L. Rep. 1 Cal. 837.
SALE OF SUPERIOR TENURE— Effect
of Setting aside.
See Setting aside Bale of Superior
Tenure.
Srebnarain Bagchee i. Smith.
1 L. Rep. 4 Cal. 807.
SALE BY TRUSTEE OF TRUST PRO-
PERTY.
See Breach of Trust.
Maniklal *. Mancharsha...
LL. Rep. I Bom. 209.
SALE OF TRUSTEESHIP— Custom.
See Alienation of Bight of Manage-
ment of a Pagoda.
Rajah Vuhuah Valia tt. Ravi
Vurhah Mutha...L. Bep. 4
I. A. 78.
Diaxized by Google
( was >
DIGEST OF CASES.
( 1386 )
KALE OF UNDEB-TEMUBE- --Growing-
Crops, unless excepted specially or b;
Custom, pass on.
Set Bang. Act VOT. of 1869, § 66
Afatoolla Sirdar v. Dwark*-
Nath Moitki'...!. Xi. Rep
4 Cal. 814.
1. Certificate of Sale— Execution of
Decree.'] B. B. held one anna of a ten-anna share
in a jamma which had been purchased by
B. L. H., and had paid rent to the Kutiinadai
on such one-anna share, and had his nam*
registered as owner of such one-anna share ir
the sherista of the Ktttkitiodar. The Kutkinadai
having afterwards brought a Suit against B. L. H
alone for arrears of rent of the entire
and having obtained a decree, and in
of this decree put up to sale the entir«
Held, that as the sale certificate related only
to the share of B. L. H., B. B.'s one-anna share
did not pass under such sale. Bhugebruth
Bekaii v. Moneeram Bannerjeb. Birch and
Milter, JJ I. L.Bep. 4 CaL 865,1879.
8. Suit la cancel Under. Tenure— Act
IX. of 1871, § I, Schrd. II., Art. 120— Beng. Act
VIII. of 1869, § 16] Under Bengal Act VIII,
of tS6o, § 16, at the time when the purchaser
acquires the tenure, all under. tenures created by
the former holder of the tenure are ipso facte
avoided by the sale ; and the purchaser and those
claiming under him are, by Art, 120 of Sched.
II. of Act IX. of 1S71, entitled to bring their
suit for the purpose of realizing the subject-
matter of those under- tenures within twelve years
from the time of the auction sale. The only
interpretation to be put on the word "avoid" i
Arts. 119 and 120, Sched. II. of Act IX. of 1871
is to, do something in exercise of the right of
avoidance. Unnoda Churn Dabs Bi
Mothura NatH Dass BlSWAS. Gatth, C.J.,
Jackson and Poniifex, JJ L L. Rep. 4 Cal.
860 j 4 Cal. Sep. 6, 1879.
S. Mortgage— Right to Notice.'] The
right, title, and interest of A. in a certain under-
tenure was sold in execution of a decree for rent
obtained against him by B., and purchased by
B. himself. B. at the time held another decree
against A. for arrears of rent for the same under
tenure. C, to whom A. had previously mortgaged
the under-tenure, thereupon, having foreclosed
the mortgage, instituted a suit for possession
SALE OF UNDER- TENURE -«.»(<*.
against A. and B., and obtained a decree for
After this decree, but before C. got actual pos-
session, B. caused the under-tenure to be sold
in execution of his other decree against A ., and
again became himself the purchaser. C., having
shortly afterwards obtained possession under his
decree, was dispossessed by B., who took pos-
1 rough the Court under his second
purchase. C. thereupon instituted proceedings
under ) 269, Act VIII. of tS59, in which he was
if ul, and consequently regained possession.
lit brought by B. to set aside these pro-
ceedings and For an adjudication of title : —
Held, that B. had a good title to the under-
:enure, and (hat he was not bound, before bring-
ng the under-tenure to sale under Ms second
iccree, to give notice to C. Laidlevb. Gunness
Chunder Sahoo. Garth, C-J-, and McDonnell,
I. L. Rep. 4 Cal. 436, 1878.
SALE OF UNDIVIDED SHARE OF
MEMBER OF UNDIVIDED
FAMILY.
See the Index heading Alienation of
Ancestral Property,
BALE BY SOME OF THE WIDOWS OF
DECEASED MAHOMED AN TO
SATISFY DECREES OBTAIN-
ED AGAINST THEM AS HIS
REPRESENTATIVES — WHEN
BINDING ON MINOR HEIR.
See Wahomedan Law— Infant.
Hahir Singh v. Mussamat Za-
KIA...I. L. Rep. 1 All. 07.
See Madras Regulatio
§18.
1. of 1805,
Reg. v. Bvla Atchi...I. L. Rep. 1
Mad. 378.
SALVAGE LIEN.
See Mortgage. 32.
MORAN I. MlTTU "BlSFE...I. L.
Rep. 3 Cal. 68.
SAMANODAXA-
See Hindu Law— Inheritance— Fa-
ther's Sister's Bon.
Thakuor Jeebnath Sinch v. The
Court or Wards . L.Reri.2
I. A. 163.
Diarized by Google
DIGEST OF CASES.
( 1368 >
SAN MOIITO AOE.
See Bombs. y Act V. of If
!. I.
RaNCHODASit. RANCKODAS...X, Xi.
Rep. 1 Bom, 681,
SANAD-Construction of.
See Construction of Sanad.
See Grant of Talook.
Bhoobun Mohini Debia v. Hub-
rish Chunder Chowdhry...
I. L. Rep. 4 Col. 28.
— — Ownership in Soil when granted by.
Sec Construction of Sanad. 1.
Ravji N. Mandi
Bapuji Desai.
iK v. Dadaji
X L. Rep. 1
Bom. 023.
- Reformation of.
See Act I. of 1869. 3.
Rep. 4 I. A. IBS.
SANAD TO WIDOW AND HER
See Act I. of 1569, f 33, CI. 11.
Bsij Indar v. Ranee Janki Kokr.
L. Rep. 6 L A. 1.
SANCTION TO ADOPT— Service Watan-
Government Sanction Unnecessary.
See Hindu Law— Adoption. 14.
Nakharu. Narravan I. Ii.
Rep. 1 Bom. 607.
SANCTION OF THE COURT— Act X. of
1866, f 175— Transfer of Assets to New
Company.
See Company— Winding up. 1.
In re The Fleming S. & W. Co.
(Limited) I. L. Rep. 8
Bom. 209.
SANCTION OF THE HIGH COURT—
For Trial of a Suit for Land in Sonthal
See Sonthal Parganas.
Kaliproshad Rai v. Mb her
Chandro Roy. ..I. L. Bep. 4
Cal. 332.
SANCTION TO PROSECUTE.
See Execution of Decree. 34.
/h re Jaojivan Nanabhai.,,1. X>.
Rep. Horn. 83. i
SANCTION TO PROSECUTE-™-/-/.
Appeal from Order granting or refusing.
See Presidency Magistrate's Act
IV. of 1877, §41.
Janokev Nath Rov... I. L. Bep.
3 Cal. 468.
And see Sanction to Prosecute. 1,
— Offence committed in Court of Magistrate,
1st Class — Sanction refused by such
Magistrate — District Magistrate, and not
Sessions Court, may grant.
See Sanction to Prosecute. 6.
See Sanction to Prosecute. 4.
— For Perjury or Forgery Committed in
Court of Magistrate, 1st Class.
See Sanction to Prosecute. 5.
— For Perjury or Forgery committed in Re-
venue Court.
Sec Sanction to Prosecute. 3.
— For Perjury committed in Court of Subordi-
nate Judge.
Sec Sanction to Prosecute. 4.
— Power of Subordinate Courte to question.
See Sanction to Prosecute. 3.
— Not Proceeded under— Power of District
Magistrate to proceed without Complaint.
See Criminal Procedure Code, Act
X. of 1877, §143.1.
Empress v. Nipcha...!. I, Rep. 4
Cal. 713.
— Public Servant.
See Sanction to Prosecute. 4.
Imp*, v. Lakshman ,.I.L.Rep. %
Bom. 481.
— Refusal to grant — by Court before which
Offence committed, does not prevent
Superior Court from granting.
See Sanction to Prosecute, 1.
— Under } si I, Penal Code, authorizes Charge
under } 192.
See Criminal Procedure Code, Act
X. of 1873, § 143.1.
Empress •■ Njpcha. ..I. L. Rep. 4
Cal. 718.
D,gltlzed by G00gle
DIGEST OF CASES.
SANCTION TO PROSECUTE— contd.
1 Criminal Procedure Code, Act X. of
1872, 4(468,469—^^1/.] If the discretionary
power conferred by f f 468 and 469 of the Crimi-
nal Procedure Code (Act X. of 1873) is exercised
and sanction accorded, the law gives do appeal
from such order, and there being no appeal the
High Court cannot interfere on motion in the
nature of an appeal. But the refusal of one Court
to exercise its power does not deprive the other
Courts of the right to exercise the same power.
If the Court before which the alleged offence
committed refuses to exercise its power, the
application to the superior Court is in <
of an original application, and not of an appeal.
It is an application to one of two or more Courts
which are vested with independent powers of
sanction. In placinga restriction on the right of
prosecution in respect of certain offences, the
Legislature has not confined the power of san
tion to the Court before which the offence
committed, but has conferred it on that Court,
and any other Court to which that Court \:
subordinate, and the sanction accorded by any
one of those Courts satisfies the restriction. .
sanction given by any one of the Courts empov
ered under the Criminal Procedure Code (A<
X. of 1872) cannot be disturbed by a superit
Court, and where sanction is refused by one of
those Courts, the refusal does not deprive the
other Courts of the discretion given to them.
Per Turner, C.J. (Offg.), Pearson and
Oldfield, JJ.— The words of 4 469 of the Ci
nal Procedure Code (Act X. of 1872) do
admit of the suggestion that there are two or
more Courts with independent powers, and that
if one refuses, the other can grant sancti
The words, that a complaint " shall not be
entertained against a party to such proceedings
except with the sanction of the Court in which
the document was given in evidence, or of some
other Court to which that Court is subordinate,
mean, that the Court to which such Court is
subordinate may, by virtue of its superiorly,
grant the sanction withheld by the lower Court.
Sanction once given by the Court to which the
first Court is immediately subordinate cannot be
withheld by any Court superior to that Court.
When no sanction has ever been applied for in
the Court below, it may be given by the High
Court as the superior of all the Courts ; and so,
where no sanction has been granted by the first,
it may be granted by the second Court. There
is no appeal from one Court to the other. But
SANCTION TO PROSECUTE-™^,
an application may be made on what is known
as the miscellaneous side of the superior Court,
and sanction, if not already given, may be grant-
ed.
Per Spankie, J.— Sanction given by any one
Court cannot be disturbed by a superior Court,
and when sanction is refused by one of those
Courts, the refusal does not deprive the superior
Courts of the discretion given to them. Bark at
Ullah Khan*. Rennie I. L. Rep. 1 All.
17, 1876.
2. Penal Code, §§ 182, 211— Power of
Deputy Magistrate to question Sanction.'] A
Deputy Magistrate has no power to question an
order made by his superior, sanctioning a prose-
cution under §§ 182 and 21 1 of the Penal Code.
Whether it Was rightly or wrongly made is
not for the Subordinate Court to inquire into.
It should accept the sanction as valid, and leave
the accused to question it before a competent
Court, if so advised. Empress o. Irad Ally,
Inslie and Broughton, JJ....I. L. Rep 4 Cal.
869 [ 4 Cal, Rep. 413, 1879.
Offence against Public Justice-
Revenue Courts— Subordination of Revenue Court
to High Court.'] The appellants having given
nee and used a forged document in
of the trial of a suit in the Deputy
Collector's Court, brought to recover arrears of
the plaintiff applied to the Collector for
ion to prosecute them ; and the Collector
endorsed on the petition the following order : —
There is no rule of practice as to giving
sanction in revenue cases, sanction is being given
le applicant is at liberty to
bring the complaint in the Criminal Court
parately( there is no need for sanction."
Accepting this as a sanction, the plaintiff pro-
secuted the defendants to conviction : —
Held, by Stuart, C.J.— That a Revenue Court
a Civil Court within the meaning and intent
of j$ 468 and 469 of the Criminal Procedure
Code, Act X. of 1872, which include any Court
tablished forthe administration of Civil Justice,
distinguished from a Criminal Court.
therefore, of that Court was
■cessary.
But the Collector's endorsement on the peti.
>n was not a sanction within the meaning of
{ 470 of the Criminal Procedure Codc-
i Lordship inclined [o the opinion that the
words "at any time" in that section were intended
dm by Google
DIGEST OF CASES.
SANCTION TO PROSECUTE— contd.
to mean at any time during trial, and thai
such sanction could not be granted after trial
and conviction, and thought that the High
Court would not be justified in giving sanction
at that stage, even if the Revenue Courts were
subordinate to the High Court within the
meaning of if 468 to 470 of the Criminal Pro-
cedure Code; on which point his Lordship
entertained grave doubts, leaning, however, to
the opinion that as to jurisdiction, Revenue
Courts were not subordinate to the High Court.
By Pearson and Straight, JJ-, (Spanhe, }.,
doubting),— That a Revenue Court is a Civil
Court within the meaning of JJ '468 and 469 of
the Criminal Procedure Code.
By Pearson, Spankie and Straight, J].— That
the Collector's endorsement was not a sanction
to prosecute j and that under the words " at any
time" in ( 470 of that Code sanction to prose-
cute cannot be given after the trial and con.
viction of an accused person.
Held, by the Judge making the reference to
the Full Bench (Straight,}.), on the case being
returned to him that the accused persons having
been prosecuted without the sanction required
by ft 468 and 469 of the Criminal Procedure
Code, all the proceedings were invalid, and
must be quashed, and the accused must be
retried, after obtaining sanction to prosecute
from the Collector. Empress n. Sabsukh...I.
L. Hep. 2 All. 633,1879.
4. Act X. of 1873, § 466.— Sanction oj
Prosecution by Government or its Deputy— MahaU
kari.] The scope of { 466 of the Criminal Pro-
cedure Code (ActX. ot 1872) extends to all
acts ostensibly done by a public servant, i.e., to
acts which would have no signification except as
acts done by a public servant ; therefore, a
Mahalkari charged with fabricating the proceed-
ings of a case purporting to have been held
before himself, could not be tried on such a
charge without the sanction specified in that
The first paragraph of ( 466 is intended to
apply, at least chiefly, to the cases of persons
specially responsible to Government, such as
accountants, who have failed in their duty ; and
the second paragraph is directed to persons
professing to exercise certain authority, and
with that pretext doing an act which is impeach,
ed by a Subject on the ground of its being
wholly unwarranted, or of an excess or impro-
priety of ionic kind.
SANCTION TO PROSECUTE— contd.
A Mahalkari falls within the first paragraph
of that section, and a sanction Tor his prosecution
by the District Magistrate (for the above alleged
, offence) is sufficient. A prosecution commences
when the complaint is made, the reception of
:omplaint being a stage of the judicial pro-
ceedings towards a conviction. The subordi-
in spoken of in f 468 of the Criminal Pro-
cedure Code (Act X. of 1872) i
subordination, irrespective of special considera-
tions of convenience or otherwise, which induced
the Legislature to provide a direct appeal to the
High Court in certain matters of exceptional
importance. For the purpose, therefore, ot
sanctioning a prosecution under this section,
the Court of the Subordinate Judge is subor-
dinate to that of the District Judge, and not to
the High Court, although the subject-matter of
[he litigation in the former Court exceeds
Rs. 5,000, and an appeal lies direct to the High
Court from the decision of that Court in that
Lakshman Hari. West and
Pinky, JJ I. L. B*p. 3 Bom. 481, 1877.
S. C. under Commencement of Pro-
secution.
S. Act X. of 187a, § 468— Sanction to
Prosecute — Relative Position of a Magistrate, 1st
Class, District Magistrate, and Session Judge.]
For the purposes of f 468 of the Criminal Pro-
cedure Code (Act X. of 1872) a Magistrate of
the 1st Class is subordinate to the Magistrate
of the District ; a sanction given by the latter to
prosecute a person for intentionally giving false
evidence before the former is therefore legal and
sufficient, although the fortner had refused to
give such sanction himself.
Sentble, the Court of Session has no power,
either when sitting in appeal from, or trying a
case committed to it by a Magistrate of the 1st
Class, to grant a sanction for the prosecution
(or the offence of false evidence or forgery com-
mitted in the Court of the Magistrate. Imfx-
t. PADAMANABHA Pai. ilehill and Pinhty, JJ...L
L. Sep. 9 Bom. 384, 1877.
6. Act X. of 1872, * 468— Sanction to
Prosecute— Relative Position of a Magistrate of
the First Class, the Magistrate of the District, and
the Court of Session. ] Held {Oldfield, J., dis-
senting) that for the purposes off 468 of the
Criminal Procedure Code (Act X. of 1872) a
Magistrate of the First Class is subordinate to
the Magistrate of the District, and consequently
pplication for sanction to prosecute a person
D,„i„.db»Googlc
( 1873 )
DIGEST OF CASES.
( W4 )
SANCTION TO PROSECUTE— contd.
for intentionally giving false evidence before
the former may, where such sanction is refused
by him, be made to the latter, and not to the
Court of Session, which has not the power to
give Ach sanction. Jn the matter of the Peti-
tion o/Gur Dayal ...I. L. Hep, 2 All- 206,
1879, F.B.
SANIASIS- Inheritance among.
See Hindu Law — Inheritance —
Madho Das p. Kamta Das J.
L. Bep. 1 All, 039.
"BANT AN 8RENI."
See Grant of Talook.
BlIOOBUN MoHINI 9. HURISH
Chumder...L. Bep. 61. A.
188 ; I. L. Bep. 4 CaL 23.
BAFINDAa
Thakooh Jekbnath Singh v. The
Court of Wards.. .L. Bep.3
I. A. 183.
— Cotraja.
See Hindu Law — Inheritance- -
Widow. 8.
Lallubhai v. Mankuvarbai...L
L. Bep. 3 Bom. 388.
8APIND A RELATIONSHIP.
See Hindu Law — Inheritance-
Widow. 3.
Lallubhai o. Mankuvarbai ..L
L. Bep. 2 Bom. 388.
SABANJAM— Partition of— Pensions Act.'] A
Saranjam is ordinarily impartible, and semble
pension granted in lieu of a resumed Saranjc
is so likewise. The provisions of the Pensio
Act XXI11. of 1871 would prevent a CivilCourt
from declaring such a pension to be partible,
unless the Collector should authorize it todo si
And the fact that the Collector has permitted
suit for maintenance out of the pension, does
not afford ground for presuming that he autho-
rizes a suit for partition of the allowance.
Ramchandra S. Vagh v. Sakharam G. Vach.
Melvill and Pinhey, JJ...I. L. Bep. 9 Bom.
346, 1877.
SEBAIT— Power of— to bind the Idol's Estate-.
See Dewuttur. 1.8.
Pkosunno Kumar] v. Golab
Chand L. Bep. 21. A.
146.
Koonwur Doorgahath Roy o.
RakChunderSen...L.B«P.
4 I. A. 68 ; I. L. Bep. 3.
Cal. 341.
SCHEME— Charity— Cy-p res— Right of Resi-
duary Legatee claiming Share of Residue
See WilL 11.
Mayor op Lvons e. Advocate
General of Bengal L.
Bep. 3 I. A, 33 ; I. L. Bep.
1 CaL 303.
SEAL OP COBPOBATION— Contract with-
it— when Valid.
See Madras Act HI, of 1871. a
Goodrich v. Vbnkanna L L.
Bep. 2 Had. 104.
SEALING UP IMMATEBIAL PABT
OF DOCUMENTS INSPECTED.
See Inspection. 3.
HeeralallRukhtv. Rah Surun
Lall I, L. lisp. 4 CaL
836.
SECOND APPEAL.
See also Special Appeal.
In cases Cognizable by Small CauseCourt.
See the cases under Small Cause Court,
Mofuasil.
- From Judgment Ex Parte in Appeal.
See Appeal—Civil. 88.
...I. L. Bep. 8 Mad.
See Appeal— Civil 86.
Sadonn c Spiers.. L L. Bep. 3
Bom. 487.
- From order in Execution.
See Appeal Civil. 87-89.
- From Order for Return of Plaint.
See Appeal— Civil. 86.
D.gmzed by GoOgle
DIGEST OF CASES.
( 1870 )
ower of Sale.
See Mortgage. 84-
RaJAH KlsHBNDATT V- RAJAH
Mumtaz ALI...L. Rep. 6
I. A. 14 5, 160.
SECONDARY EVIDENCE— Beng. Reg.
XX. of 1812, ( a, CI. $,
Sec Makomodan Law— Gift. 2.
Amebroomissa e. Abedoonissa.
I* Rep. SLA. 87.
— OfConfession defectively recorded — Act
X. of 1873, §§ wa, 346.
Sec Evidence. 13. 13.
Empress v. Mannoo Tamooi.ee.
I. L. Rep. 4 CaL 696.
Req. b. Shiva... I. L. Rep. 1
Bom. 219.
See Criminal Procedure Code, Act
X. of 1872, §132. 8.
Empress «. Rahanjiya I. L.
' Rep. 2 Had. 6.
-^01 Unregistered Deed of Partition.
See Evidence. 18.
Kachudiiai 7. Krishnabhai...
I. L. Rep. 2 Bom. 63B.
SECURITY- -Appeal from Order requiring—
from Grantee of Certificate to collect
Debts-Act XXVII. of i860.
See Appeal— Civil. 4. 16.
MONMOHINEE D. KtM
FAUt I. L. Rep. 1 Cal.
137-
SECURITY BOND— For Performance of
Decree of Appellate Court on Stay of
Execution.
See Civil Procedure Code, Act VTJJ..
Of 1859, I 338.
SinvLAT.i*. Apaji...I. L. Rep.
2 Bom. 664.
Surety— Execution— Act VIII. of 1859, H
204 and 342.] A bond given before the decree
as security for costs under } 342 of Act VIII. of
1 859 may be enforced in a summary way against
the surety by proceedings in execution. Pam
Kishen Dais v. Hurkheo Singh (7. W. Rep. 329)
and Oujtndro Narain Soy v. Hemanginee Dtxsee
(13 W. Rep. 35), where it was held that f 204 of
SECURITY BOND— could.
Act VIII. of 1859 did not apply to parties who
have become sureties after the decree, are clearly
distinguishable. Chutterdharee Lall v. Ram-
relasiiee KoER. Ainslie and Kennedy, J J--. I.
L. Rep. 3 Cat 818; 1 Cal. Sep. 347,
1877.
See Attorney and Client. 3.
MoNOHUR DOSS D. RoilOHAUTH
Law... I. L. Rep. 3 Cal 473.
Bond for — Enforcement of, against Surety
in Execution Proceedings.
See Security Bond.
Chutterdharee v. Rambela-
SHEE...I. L. Rep. 8 CaL
318.
Practice — Residence.
See Civil Procedure Code, Act X.
of 1877, | 380.
Mahomed Shuffli v. Laldin
Abdulla I. L. Rep. 8
Bom. 227.
] Act X. of 1877, , 549— Extending
TVima] Where the Appellate Court demands from
an appellant security for costs, the Court may
extend the time within which such security must
be deposited if the application for such exten-
sion is made before the eipiry of the time within
which it was ordered that the deposit should be
made ; it cannot do so afterwards ; and if such
security is not furnished within the time or-
dered, it is imperative on the Court to dismiss
the appeal. Haidri Bai v. The E. I. Ry. Co.
Turner, C.J. (Offg.), and Pearson, ]...!, I,.
Rep. 1 AIL 687, 1878.
3. Practice — Appeal."] Mere poverty
is no ground for requiring an appellant to give
security for the costs of the appeal. Manekji
Limji Mancherjio. Goolbai. Westropp, C.J.,
mASargent,\ I- L- Rep. 3 Bom.
241, 1878-
SECURITY, DEFAULT IN DEPOSIT
OP — Dismissal of Appeal to Privy
Council for.
See Appeal to Privy Council. 4.
Thakoor Kapilnath Singh b.
The Government I.. X*
Rep. 1 Cal. 149.
Diarized by Google
( i*w )
DIGEST OF CASES.
( 1379 )
SECURITY FOR GOOD BEHAVIOUR.
See Whipping Act VI. of 1864,
§§ 2 and S.
Empress d. Partab...!. L. Rep.
1 AIL 666.
Act X. of 1872, { 505.] On a requisition
by the High Court, a Magistrate is bound to
state the grounds on which he fixed the amount
of security.
A person from whom security for good beha-
viour is demanded should have a fair chance
afforded htm of complying with the required
conditions of security. The amount of security
should be fixed on just and reasonable grounds,
and should not be excessive. Empress v. Db-
dar Sircar. Ainslie and McDonnell, Jj-.-I- L.
Rep. 2 Cal 384 ; 1 Cal. Rep.
98, 1877.
SECURITY TO KEEP THE PEACE—
Cannot be required on Conviction of
Criminal Intimidation by Threat to bring
False Charges.
Set Criminal Procedure Code, Act
X.ofl87S,g459.
Empress b- Raghubar ..I. L.
Rep. S AIL 3S1.
SECURITY PENDING APPEAL — For
Mesne Profits and Interest, subsequent to
Decree, though not provided for in De-
cree— Estoppel.
See Means Profits. 1.
Sadasiva Pjllai p. Ramalinga
P1LLA1...L, Rep. 2 I. A.
219.
SECURITY FOR 8TAY OF EXECU-
TION—Deposit of Money and Jewels.
See Execution of Decree. 4.
ShroGkolam Sahoo v. Rahut
Hossein...!. I.. Rep. 4 Cal.
e.
SELF-ACQUIRED PROPERTY.
See Oudh Proclamation of 1SB8,
para. 8. 1.
Hurperihad o. Sheo Dval.-.L.
Rep. 8 I. A. 309.
■ Burden of Proof-
See Onus Proband!. 4.
Vkdavalm «. Narain I. I.
Rep. 3 Mad. 16.
SELF ACQUIRED PROPERTY— conid.
Education out of Joint Funds.
See Hindu Law— Self-acquired Fro*
perty.
Pauliem VallooChettvb. Pau-
liem Sookyah CHBTTY.-.L.
Rep. 4 I. A. 109.
Grant of Village in Inam jointly to Mem-
bers of Undivided Family.
See Hindu Lav — Undivided
Family. 1.
Radhabai «. Nararav I. L.
Rep. 8 Bom. 1S1.
Gift of — to One Son to Exclusion of
Others- Valid.
See Hindu Law— Gift, 1.
Sital 0. Madho L L. Rep. 1
All. 394.
SELF-DEFENCE.
See Land held by Joint Owners.
Empress v. Rajcoomar Singh...
I. L. Rep. 3 Cal. 573.
SENTENCE — Aggregate — on Conviction
on Several Charges measures Right of
See Appeal— Criminal, 3.
Reg. ». Rama Bhivgowda ..I, L.
Rep . 1 Bom. 228-
— *— Aggregate — Offence made up of Parts.
See Criminal Procedure Code, Act
X of 1873, §454. 1.
Empress v. Budh Singh... I. L.
Rep. 2 AIL 101.
Confiscation under § 49, Act XXI. of 1856
no Part of.
See Criminal Procedure Code, Act
X of 1879, §233.1.
Empress v. Bmoanath Dass...
I. L. Rep. 8 Cal. 366.
Enhancement of.
See Enhancement of Sentence.
Anon I. L. Rep. 1 Mad. 34.
Imprisonment in Default of Payment of
Fine where Fine only inflicted.
See Criminal Procedure Code, Act
X of 1873, § 309.1.
Recv. Muhammad Saib ..I. L.
Rep. 1 Mad. 377.
Diaxized by Google
DIGEST OF CASES.
( ISM )
BENTENCB-«»W.
I m prison merit in Default of Payment of Fine
cannot be added to Substantive Sentence
(or purpose of Appeal.
See Presidency Magistrate's Act
IV. of 1877, §167. 1.
joiHAHAu Davay.,1. L. Kep. 2
Had. SO.
Previous Conviction.
See Penal Code, § 70.
Separate — for Separate Offences.
See Conviction on Several Charges .
a.
Empress r. Rameshar Rai.,,1. L.
Bep. 1 AIL 878.
— Of Transportation in Case of Offence
punishable wit ^Transportation for Life, or
Imprisonment for Term of Years.
See Penal Code, § 68.
Reg. *. Naiaua L L Bep. 1
AIL 48.
—— Whipping— Previous or Subsequent Sen.
tence ol Nature described in Act VI. of
i86>> f 7, renders Whipping Illegal.
See Whipping Act VL of 1864, § 7.
1.
Anon I. L. Bep. 1 Had. 86.
Whipping — Dishonest Receipt of Stolen
Property — Previous Conviction of Theft-
See Whipping Act VI of 1864,
S§ 3 and 3. 1.
Empress p. Partab...L L. Bep. 1
AIL 688.
SEPARATE BUSINESS CABBIED ON
BT WIFE.
See Harried Women's Property
Act III. of 1874-
Alluiiuddy ». Braham I. I*.
Bep. 4 CaL 140.
SEPARATE CHARGES FOB DISTINCT
OFFENCEB.
See- Criminal Procedure Code, Act
X. of 1873, §5 463,464.
Empress it Dokonjoy Baraj I.
L. Bep. 8 CaL 640.
SEPARATE ENJOYMENT OF TREES
SHARES BT CO- WIDOWS.
See Hindu Law — Inheritance —
Widows. 3.
Sri Gajapathi Nilamani ». Ski
Gajapathi Radhamani. X. L.
Bep. 4 1. A, 313; I. LKep.
1 1
SEPABATE ESTATE.
See Compromise. 3.
Hit
. S|N<
.. Ujac
L L. Bep. 1 All. 661.
— — Impartible Zemindary transferred by Family
Arrangement to Younger Brothers of Un-
divided Family— Succession of Widow
thereto as Separate Estate.
s.-e Hindu Law— Separate Proper-
ty. 1.
Periasahi «. Periasami L.
Bep. 6 I. A. 61 ; S. C
L L. Rep. 1 Had. 313.
SEPABATE MAINTENANCE— Right of
Hindu Widow to demand.
See Hindu Law— Maintenance of
Widow. 3. 8. 7. 11.
Rani
VlN.
j.Yamf
I. L. Bep. 3 Bom. 44.
, Shivajiram...L L.
Bep. 3 Bom. 873.
Naravanbav*. Ramaqai ..I. L.
Bep. 8 L A. 114.
Savitkibai v. Laxhibai ..L L.
Rep. 3 Bom. 870.
Wife's Right to.
See Hindu Law— Maintenance of
Wife. 1. 3. 3.
StDOLINGAPA V. SlDAVA X L.
Bep. 3 Bom. 684-634.
Kasturbai v. Shivajiiiav...!. L.
Bep. 3 Bom. 373, 383.
SEPABATE OFFENCES — Fabricating
False Evidence— Voluntarily Assisting in
Concealing Stolen Property.
See Conviction on|Several Charges.
3.
Express e. Rameshar Rai...I. L,
Bep. 1 All. 378.
Separate Trial for.
See Criminal Procedure C
X. of 1872, § 483.
Rug. ». Hanhanta.I. L. Bep. 1
Bom. 810.
re Code, Act I
483. J
. I. L. Bep.l {
D.gmzed by GoOgle
( 1361 )
DIGEST OP CASES.
(
)
SEPARATE PROPERTY.
See Compromise. 2.
PlTAM SlNOH tr, UjAGAR SlNOH.
I. L. Rep. 1 AIL 651.
Sec Hindu Law — Separate Pro-
PERIASAMT r. PERIASAMI L.
Rep. 51. A. 91; I. L.Rep.
1 Had. 312.
SEPARATE PROPERTY OF m A-R.Tt.TWp
WOMAN— Parsi.
See Harried Woman's Separate
Property. 1.
Dhanjibhai i. Navazbai,..I, L.
Rep. 8 Bom. 75.
Land purchased with Sale Proceeds of
Legacy to Sole and Separate Use.
See Harried Woman's Separate
Property. 2.
Hurst v. Mussoorie Bank... I. L.
Rep. 1 AIL 763.
Berbspordv. Hurst... Ibid.
778.
SEPARATE PROPERTY OF WIFE-
Decree against.
See Harried Women's Property
Act HI. of 1874.
ALLL'UL'DUY b. Brahah I. L.
Rep. 4 Cal. 140.
SEPARATE RESIDENCE OF WIDOW
NOT GENERALLY A BAR TO
HER BIGHT TO MAINTENANCE.
See Hindu Law — Maintenance of
Widow. 3. 3. 7. 11. 14.
SEPARATE SENTENCES.
See Criminal Procedure Code, Act
X. of 1878, §464.
Empress b. Budh Singh ...I. L
Rep. 2 All. 101.
S« Offence made up of Several
Empress v. Ram Adhin...I. L.
Rep. 2 AIL 139.
- For Exposure of Child with Intent to aban-
don, and Culpable Homicide for Death
caused by Abandonment, e;
inflicted.
See Conviction on Several Charges.
3.
Empress a. Banhi...I. L. Rep.
2 All. 349.
SEPARATE SENTENCES-*.*/,*.
Fabricating False Evidence, and Volunta-
rily assisting in Concealing Stolen
Property.
See Conviction on Several Charges.
2.
Empress b. Rameshar Rai...I. L.
Rep. 1 All. 379.
SEPARATE SHARE OF RENT — Suit
for— by One Co-Sharer— Colluding Co-
Sharers— Unpaid Balance of Rent.
Set Co-Sharers of Land. 3.
Jadu Dakss. Sutherland ..I. L.
Rep. 4 Cal. 886.
SEPARATE SUTT— Moneys Unduly Realiz-
ed in Execution— Recovery of.
See Execution of Decree. 6.
Partab Sing v. Beni Ram. ..I. L.
Rep. 2 All. 61.
SEPARATE SUITS FOR ARREARS
OF RENT.
See Co. Sharers of Land. 1.
Doorqa Prosbadv. JoyNarain.
I. L. Rep. 4 Cal. 96.
Gani Mahomed v. Moras. ..Ibid.
SEPARATE TRIAL — For Separate Of-
See Criminal Procedure Code, Act
X of 1872, §468.
Rso.ir. Hanmanta.X L. Rep.
1 Bom. 610.
— Confession by One Accused to Police Officer
-ulpattng Another Accused.']' When a Judge,
reading the depositions before trial, sees that
a confession made by one accused person to a
police officer is likely to be offered in evidence
on behalf of another accused, it would be an
important matter for his consideration whether
it would not be desirable that the accused should
be separately tried. Reo. v. Pitahber Jina.
WistroPP, C. J I.L. Rep. 8
Bom. 61, p. 64.
SEPARATED HALF - BROTHER —
—Right of— to Succeed— Full Sister pre.
See Hindu Law — Inheritance —
Sister. 1.
SaKHAKAM a. AOHIKARIO. SlTA-
bai I. L. Rep. 3 Bom.
3G3.
Diaxized by Google
[
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DIGEST OF CASES.
( 1381 )
SERVANT— PLEDGE BY— OF GOODS
LEFT IN HIS CUSTODY.
See Contract. IS.
BlDDOMOYS T. SlTTARAM.,,1. L.
Bep. 4 Cal. 497.
SERVICE LANDS-Right to resume or
assess— on Cessation of Service.
See Ghat wait Tenure.
Leelanund Singh c. Thakoor
MuNRUNJUN SlNOK t L.
Bep. 3 CaL 251.
See Resumption. 2,
Keval s. Talukdari Settle-
ment OFFICER... I. L. Bep.
1 Bom. 688.
SERVICE OF NOTICE OF ENHANCE-
MENT—On One Member of Joint Hindu
Family, owning Tenure, Sufficient.
See Bengal Act VEEI. of 1869, §
14.1.
NOBODEEP CHUNDER ShaHA V.
SOMARAU DAS3...I. L. Itep.
4 Cal. 692.
. When Unnecessary.
See Bengal Act VIII. of 1869, §
14.8.
NlSTARHI V. BONOWALI...I. L.
Rep. 4 Cal. 941.
SERVICE OF NOTICE OF FOBEOLO.
SURE— Reg. XVII. of 1806, § 8.
See Mortgage. 13. 14.
NoRENDUR NARA1N o. DwARKA
Lal...L. Rep. 6 1. A. 18;
I. L. Rep. 3 Cal. 397.
Bank of Hindustani, China, and
Japan*. ShoroshiblaDebee.
I. L. Bep. Si Cal. 311.
SERVICE OF NOTICE OF SALE.
See Beng Reg. VIII. of 1819, § 8,
ci. a.
Ram S/.PL-K Dose v. Monmohini
Dos3EE...L.Rep.2L A.71
SERVICE OF NOTICE OF BALE FOB
ABBEARS OF RENT — Defective
Service "Sufficient Plea."
See Beng. Beg. VIII. of 1819, S
8.1.
GOUREE LUH. JOODHISTEER...I.
L Rep. 1 Cal. 259,
BEBVIOE TENTJRE.
See Chakeran Lands.
HllRROGOBlND RAHA V. RAMRVTSO
Dev...I. L. Bep. 4 CaL 67.
SERVICB WATAN— Sanction of Govern-
ment to adopt.
See Hindu Lair— Adoption. 14.
Narhar v. Nabrayan I. L.
Rep. 1 Bom. 607.
1. Successive Life Tenants— Alienation
of Service Lands by Incumbent — Adverse Posses.
sion— Limitation.} " It does not appear on the
face of the report of the case of Kuria v. Gururm
(9 Bom. H. C. Rep. 28a) whether there had been
alienation by the plaintiffs ancestor of the vatan
lands or not. If there had been an alienation, and
the alienor had lived, say, ten out of the twenty
during which the defendants were in pos-
n, we can well understand how the decision
then made was arrived at. If A., being the in-
cumbent of a servicew/QH, have alienated it, B.,
his heir, though more than twelve years may
have elapsed between such alienation and the
death of A., would be entitled to recover the
vatan, inasmuch as A.'s alienation would, under
Bombay Reg. XVI. of 1827, , XX., CI. land 2,
be invalid as against his heirs ; but the prohibi-
tion against alienation in that Regulation did
not extend to an alienation for any period not
exceeding the lifetime of the vatandar. If a
conveyance by an hereditary officer purported to
give the alienee a greater estate than one lorthe
life of the alienor, the Court would under the
Regulation, have cut it down to an estate for his
life. The heir's title lo the land would not
accrue until the death of A. (the alienor), and the
issession of the alienee would not be regarded
adverse to the heir, inasmuch as it would be
possession in no wise inconsistent with his
tic so long as the incumbent A. lived.
the >
t of A.'s death the possessio*
'ould be adverse to B., and if ff. suffered twelve
years from that event to elapse without bringing
his' suit to recover the land, we think not only
B. himself, but also fl.'s heir, would be barred
by the law of limitation applicable to this cas«
(Act XIV. of 1839). To hold otherwise wonld
be to put an end to the law of limitation
altogether as to vatans appendant to heredi-
tary offices." Per Cur. in BaBaji ;■. Nana.
Westrofif, C.J., and West, J I. L. Bep.
1 Bom. 636, p. 636. 1876.
Diaxized by Google
( 1385 )
DIGEST OF CASES.
( 1W )
SESSIONS CASE.
See Revival of Prosecution. 2.
EMPRESS d. Harry Daval Karmo-
kab...L L- Bep. 4 Cal. 16.
. Act X. of 1872, H 4. 296.] The appellant,
after his discharge by a Magistrate on a charge
under f 457 of the Penal Code, was committed
to the Sessions Court by order of the Sessions
Judge, under j 296 of the Criminal Procedure
Code, upon charges under j j 380 and 457 of the
Penal Code.
field by the Full Bench {Spaniie and Qidfield,
J]., dissenting), that the commitment was illegal,
and that the " sessions cases" referred to in $ 296
are sessions cases triable exclusively by the Court
of Session. Empress o. Kanchah Singh..,!.
L. Bep. 1 AIL 413, 1877.
SESSIONS 3VDQE — Power of — to admit
Convicted Person to Bail, where no Ap.
peal lies.
See Criminal Procedure Code, Act
Xofl872,§380.
Reg. -a. Thakur Parskad...I. L.
Bep. 1 All. 151.
Relative Position of— to Magistrate, First
Class, and District Magistrate, for purpose
of % 468, Act X. of l87Z-Sanction to
Prosecute.
See Sanction to Prosecute. 6.
Gur ir. Daval ..I. L. Bep. 2 All.
209.;
SESSIONS JUDGM- JURISDICTION OF
—Power to commit to itself Cases not |
triable exclusively by Court of Sessions —
Act X.of 1872. H 23'j 471.472.
See Jurisdiction . 16. 16a.
SET-OFF— Of Costs against Mortgage Money
See Mortgage. 33.
BR1JNATH DaSS I. JtfGGERNATH
Dam. ..I. L. Bep. 4 Cal.
742.
■ Money paid for Government Revenue
during Wrongful Possession.
See Bight to recover Government.
Revenue paid during Wrong,
fill Possession.
TlLUCK Chand V. SoUDAWIN]
Dasi I. L. Bep. 4 Cal.
066.
BET-OFF— tonld.
1. Lambardar— Co-Sharer— Profits—
Revenue.] The jama of a mahal in which the
defendant was the lambardar, and the plaintiff
a co-sharer, was reduced by the Collector in
1S64. In 1870 the Government disallowed the
reduction, and directed the difference to be
recovered for the previous six years. The
amountwas made good by the defendant in 1874
out of the profits of the years from 1870 (.0 1874
which he had retained. In a suit by the plain-
tiff to recover his share of the profits for those
Held (Spaniie,]., dissenting), that the defen-
dant was entitled to be allowed the payment
made by him in liquidation of the Government
demand for the arrears of revenue. He was
the agent of the co-sharers to make collections,
d after payment of the revenue to divide the
profits, and was entitled to have recourse to the
ction of the years from (870 to 1874 to
discharge the arrears of revenue. There is
nothing in the revenue law which restricts a
ambardar, or other cd-sharer who makes collec.
ions, to discharge arrears of revenue out of the
collections of the particular year in which the
r may accrue due. Ucai Singh v. Jacan
Nath I. L. Bep. 1 All. 135, 1876, F. B.
2. Act X. of 1877, ( Ill-Mortgage— Com-
pensation for Waste by Mortgagee] Under ) III
of the Civil Procedure Code (Act X. of 1877), it
only an ascertained Bum of money legally
recoverable that can be the subject of set-off,
and it is necessary that in such claim both
parties fill the same character as they fill in the
plaintiffs suit, the claim must be certain and
determinate and actually due, and in the same
right and of the same kind.
Therefore, in a suit by a usufructuary mortga-
gee against the mortgagor to recover the money
due under the mortgage, the mortgagor cannot
set off against the plaintiff's claim a sum
claimed by him as compensation for damages to
the property mortgaged caused by acts of waste
committed by the mortgagee. Raghu Nath
Dass i>. Ashraf Husmn Khan. Pearson and
Oldfield, )]...!, L. Bep. 2 All 252, 1679.
SETTING- ASIDE AWARD- Miscarriage
of Arbitrators — Acquiescence.
See Arbitration. 7.
ChowdhryMurtaza H osseins
Mtssr. Bibi Bkchdnnissa.
L. Bep. 3 I. A. 209.
Digitized by G00gle
( 1887 )
DIGEST OF CASES.
<
)
SETTINO ASIDE DEEDS-Onus Proband!
— Suit for Confirmation of Possession— Heirship
— Declaratory Decree.] In a suit for settinj
aside deeds, some evidence ought to be given b;
the plaintiff in order to impeach the deeds hi
seeks to Set aside ; and he is not entitled, merely
on proof of heirship to the person executing thi
deeds, to throw the burden on the defendant
claiming under the deeds, to show a better title.
Where a suit is brought for confirmation of
possession and the setting aside of deeds by
person alleging himself to be in possession and
to be heir, and he proves his heirship and that
the deeds ought to be set aside, bu
prove possession ] the decree cannot bf
firmation of possession, but it should direct the
deeds to be set aside, and should not be limited
to a declaration of the plaintiff's title as hei
Tacoordeen Tewakhv v. Nawab Sved A:
Hossein Khah..L. Rep. II. A. 162; 13
Beng. L. R. 437; 21 W. R. 340, 1874.
S. C. under Pardanashin Woman. 2.
SETTINO ASIDE EX-PARTE DE-
CREE.
See Civil Procedure Code, Act X.
of 1877, §83.
MlRXA HebaNEF.i. SVAH HoOSEIN.
I. L, Rep. 2 Bom. 449.
BETTING ASIDE SALE IN EXECU-
TION OF A DECREE— For Breach
of Express Warranty of Title.
See Sheriffs Sale. 4.
Framji v. Horhasjl.X L. Rep.
2 Bom. 258.
Right of Purchaser to recover Purchase
Money on.
See Sheriff's Sale. 1. 2. 4.
Dorab Ally Khan v. Abdool
Aziz...L L. Rep. 5 1 A,
116; I, L. Rep. 3 Cal.
808.
Fraiiji v. Hormasji...I. L. Rep.
2 Bom. 208.
See Sale in Execution of Decree. 13.
21.
Makundi Lal o. Kaunsila I
L. Rep. 1 All. sea
Basappa v. Dunoava ...I. L. Rep.
2 Bom. 640.
SETTINO ASIDE SALE OF SUPERIOR
TENURE, EFFECT OF— Sight of Heidi
of Subordinate Tenure— Purchaser at Revenu
Sate— Right to recover Purchase-Money —Im
filed Contract. J The plaintiffs were ehahar
SETTINO ASIDE BALE OF SUPERIOR
TENURE, EFFECT OF—contd.
fatnidars of certain lands in a certain turrug.
Tilt paint on which their tenure was dependent
was sold for arrears of revenue, and purchased
by T., from whom the plaintiffs, in order to
avoid eviction, took a new dar-fiatni of the
antire fur-ruff within which their chahar-patni
had been included. Thereupon the Land Mort-
gage Bank, having a decree against the plaintiffs
sold the entire turruffs in execution, and the
defendant became the purchaser at the execu-
tion sale. Subsequently, the sale of the patni
for arrears of revenue was set aside, and all the
chahar-patni and other intermediate tenures came
again into force. In a suit by the plaintiffs to
recover possession as ehahar-palniaars, from
the defendant, alleging that whatever rights
the latter acquired, as purchaser at the execut-
ion sale, were brought to an end when the
revenue sale was set aside : —
Held, that the plaintiffs we re entitled to succeed,
and that the defendant could not insist that the
plaintiffs, before they could recover possession
of the chahar-patni, ought to be put on terms
and compelled to repay him his purchase -money
any part of it. He had not conferred on the
plaintiffs any benefit in respect of saving the
ehahar patni from sale, there being nothing to
prevent the Land Mortgage Bank from taking
execution at any time ; and even if he bad,
vas a mere voluntary payment by the
defendant, which the plaintiffs were not under
any obligation, express or implied, to recognize,
within the observations of the Privy
Council in Ram Tuhul Singh V. Bisseyaar LaU
(L. Rep. 3.1. A. 131, 143), that " it is not in every
lich a man has benefited by the money
of another that an obligation to repay that
money arises." Sreenarain Bagchss;-. Smith.
Jackson and McDonnell, JJ I. L. Rep. 4
Cal. 807 ; 4 Cal. Rep. 148, 1879.
See Right to recover Government
Revenue paid daring
Wrongful Possession.
TlLUCK ClIAND V. SOUDAMtM
Dasi.-.L L. Rep. 4 Cat 560.
See Co -Sharers of Fatni Taluk.
Mohesh Chunoer o. Ram Puf-
SONO...X, L.Rep.4 Cal. 639.
See Sale in Execution of Decree.
17.
Digitized by G00gle
( 1389 )
DIGEST OF CASES.
( 18!
SETTLEMENT BY REVENUE ATI
THORITXES-ffii*f of Suit— Limitation -
Act IX. of 1847,— Effect of Order under.]
Although a settlement made by the Revei
authorities under Act IX. of 1847 is final, the
fact of such settlement will not preclude a pro-
prietor from seeking in a Civil Court to establish
his right to the lands so settled. In suits by a
purchaser to recover possession of an estate sold
or arrears of Government revenue due in respect
of sucn estate, the purchaser's cause of action
(by whatever period of limitation it would be
restricted) arises from the time of the purchase,
and the period of limitation is to be counted
from that time. Narain Ckunder e. Tayler.
Jackson and Tottenham, JJ...I. L. Bep. 4 Cal.
' 103 ; 3 Cal. Bep. 151, 1878.
BEVERAL ISSUES — DECISION ON
ONE OF.
See Lottore Patent, 1835, Calcutta,
ci. is. a.
Ebrahihp, Fackrunissa Begum.
1. 1.. Bep. 4 Cal. 531.
SHAM DECREE— Set up against a Purcha-
ser bond fide for Value.
See Mortgage. 7.
Gopi v. Markande...!. J,. Bep.
3 Bom. 30.
SHARE OP AN ADOPTED SON OP
A NATURAL BON, ON A FAR
TITION IN A MITAKSHABA
FAMILY.
See Hiudu Law— Partition. 11.
Raghubanundit. Sadhu Churn.
I. L. Rep. 4 Cal. 435.
Transfer of — Right of Bank to
refuse to Register.
See Presidency Bank* Act XI. of
1876.
Mothoormohum».Bank of Ben-
gal...!, L. Bep. SCal. 393.
SHEBAIT— Powers of.
See Dewuttur. 1. 2.
PROSONNO KlMARI ». GoLAB
Chund L. Bep. SLA
140.
KonwarDoorganath Rots. Rah
Chunder Srn L. Bep. 4
I. A. 69 ; I. L. Bep. 2.
Cal. 311. that the
SHEBAITSHIP SUCCESSION TO— Hindu
Widow's Right of.
See Hindu Law— Adoption. 9.
Janokee if. Gopavl Acharjia...I,
L. Bep. 9 Cal. 365.
SHEBIFF'S POUNDAQE-5fl/,J/OCI,t,„ B/
Decree after Attachment, but before Sale.'] Cer-
tain immoveable property of the defendant was
attached in execution of a decree which had
been partly satisfied by the proceeds of a pre-
vious sale in execution. Before any proceedings
Cor sale were taken under the attachment, the
defendant paid the balance and satisfied the
plaintiff's claim in full ;—
Held, that the Sheriff was entitled to poundage
on the amount so paid in satisfaction of the debt,
and satisfaction of the decree was ordered to be
entered, and the attachment withdrawn, subject
to the payment of such poundage. Roychurn
Dutt v. Aheena Bibi. Macpkerson, J...L. L.
Bep. 2 Cal. 386, 1877.
2. Debt levied by Execution—Arrest.']
Where a defendant in a suit had been arrested
by the Sheriff under a warrant of arrest in exe.
cution of the decree obtained by the plaintiff
but the defendant was discharged from custody
under the provisions of { 273 of Act VIII. of
1859, and Act XXIII. of 1861, , 8, without any
portion of the amount endorsed on the writ
having been recovered -.—Held, following Vina,
yek Vasudey v. Ritchie, Steuart & Co. {iBom.
H. C. Rep., O. C. J. 139), that the Sheriff was en.
titled to his poundage on the amount endorsed
on the warrant of arrest. Pearson v. Madhub
Chunder Ghose. Macpherson, J... I, L. Rep.
2 CaL 387, n., 1878.
SHEBIFF'S SALE- Purchaser at Sale by
Sheriff under a Writ of Fieri Facias— Sate subse-
quently declared Invalid— Suit to recover Fur-
e-Money—Liability of Execution Creditor—
VIII. of 1859, ( j 201, 24j j The plaint in a
by A. against B. stated that in a suit in
which B. had recovered judgment against C-, a
■f fieri facias was issued on the 18th June
on the application of B., to the Sheriff of
Calcutta, directing the Sheriff to levy a certain
)f money upon the property, moveable and
veable, of C, within the provinces of Ben-
gal, Behar, Orissa, or Benares, or in any other
factories or places then annexed and made sub.
the Presidency of Fort William in Bengal,
and, if necessary, by sale thereof ;
t did not legally authorize the
hy Google
( 1391 )
DIGEST OF CASES.
{ 1*98 )
SHERIFF'S SALE— ronM.
levy of (he sum therein mentioned by the sei-
zure or sale of immoveable property in Oudh ;
that (he Sheriff by the authority of the execution
creditor, the defendant, and on the express in-
structions of his attorney, and professing to act
under and by virtue of the said writ, seized the
right, title, and interest of C. in a certain talook
in Oudh, and put up to sale the same right, title,
and interest of C. ; that one D. became the
purchaser thereof, and that a bill of sale was
executed to him by the Sheriff, and that D. there-
upon paid to the Sheriff the whole purchase-
money, and he paid to the present defendant a
part thereof, and paid the balance to C-, and
put D. into possession, but that such sale and
delivery of possession was not legal or operative
by the law then in force in Oudh, and did not
pass the right, title, and interest of C. to D.\ that
D. remained in possession as owner, collecting
the rents, and eventually instituted proceedings
(or a partition of a portion of the premises
purchased under the bill of sale, whereupon the
Judicial Commissioner pronounced the sate to be
null and void, and set it aside ; and that D. was
removed From possession (but it did not clearly
appear from the plaint how or by whom D. was
evicted); and that the plaintiff sued, as the
executor of D., to recover the whole of the pur-
chase-money from B.\—
tffW, on appeal, affirming the decision of Phear,
J., that the plaint disclosed no cause of action.
The principle of the cases which establish that
where the conveyance has been actually executed,
and the purchaser has been evicted by a title to
which the covenants in his purchase-deed do
not extend, he cannot recover his purchase-
money either at law or in equity, was directly
applicable to the present case- The purchaser
has the means of inquiring into his vendor's
title- He is bound to satisfy himself of the
goodness of the title he buys, and to protect
himself by proper covenants ; and a purchaser
at a Sheriff's sale, who expressly buys only the
title and interest that the Sheriff has to sell
him, is in no better position than any other
purchaser. If he chooses to buy imprudently, he
must lake the consequences of his imprudence.
Held, also, that there was no privity of con-
tract between the plaintiff and defendant, which
would justify the former in treating the latter
as the party who had sold him the property.
The fact of the defendant and his attorney
having directed the Sheriff to seize the property
SHERIFF'S SALE— fonfrf.
might have made the defendant answerable in
to the Judgment-debtor for the act of seizure,
it did not follow that the Sheriff was the
defendant's agent for the purpose of making a
ract, and executing a conveyance to any
who might become the purchaser at the
Meld, lastly, that having regard to the fact of
the plaintiff's testator's long continuance in
possession of the property, and in receipt of the
and profits, the plaintiff could not sustain
the claim against the defendant in the shape
fhich the plaint assumed, m>., for money had
nd received on the ground that the considera-
tion had wholly failed. Dorab Ai.lv Khan v.
Khajah Moheeoodeen. Garth, C.J., and
Markby, J I. L. Rep. 1 Cal. 60, 187S.
See this Case on Appeal, infra.
L. Rep. 6 1. A. 11B ; I. L.
Rep. 8 CaL 806.
8. Lands sei*ed and told out of Juris-
diction— Eviction of Purchaser — Right to rtcotrr
Purchase-Money.'] The general rule of English
law governing sates by private contract either
of a freehold or of a leasehold interest in land,
that if the conveyance has been actually execu-
ted by all the necessary parties, and the pur-
chaser is evicted by a title to which the covenants
do not extend, he cannot recover the purchase-
money either at law or in equity does not
govern cases in which the sale, as regards the
owner of the things sold, is in inritum and
made under colour of legal process — as where
tale is by the Sheriff under a writ of/, fa.,
though the Sheriff was without authority to
execute the writ at the place where the property
was situate- Such cases must be governed by
the rules applicable to Sheriff's sales.
When property has been so sold under a
regular execution, and the purchaser is after-
wards evicted under a title paramount to that
of the judgment debtor, he has no remedy
against either the Sheriff or the judgment
creditor. But this is because the Sheriff i*
authorized by the writ to seize the property of
the execution debtor which lies within hi*
territorial jurisdiction, and to pass the judgment
debtor's title to it without warranting it to be
good. The Sheriff, however, if he acts ultra
vires cannot invoke the protection which the law
gives to him when acting within his jurisdiction.
He is in the position of an ordinary person who
D,„i„.db»Googlc
(
)
DIGEST OF CASES.
{ 1394 )
SHERIFF'S SALE— -contd.
has gold that which he has no title to sell, and
his responsibility in respect of the sate must be
governed by the law relating to the sale of
chattels, rather than by that relating to the sale
The Sheriff selling under a writ of fi. fa.,
therefore, may be held to undertake by his
conduct that he is acting within his jurisdiction,
and has seized and put up for sale the property
sold in the exercise of his jurisdiction, though
when he has jurisdiction he does not in any way
warrant that the judgment debtor had a good
title to it, or guarantee that the purchaser shall
not be turned out of possession by some person
other than the judgment debtor.
Where, therefore, a purchaser at a Sheriff's
sale under a writ oifi.fa., upon being evicted
by the execution debtor, sued the execution
creditor to recover the purchase money, the
Sheriff being without authority to execute the
writ at the place where the property was situate,
but having sold under the authority and by the
express direction of the judgment creditor ; the
case was remanded to be tried whether, on the
facts to be proved, a cause of action having been
shown by the plaintiff, the evicted purchaser
was entitled to recover back the purchase-monej
as money had and received to his use as upon a
total failure of consideration, or to any other and
what relief. Dorab Ai.lv Khan v. Abdol
Azebz...L. Sep. 6 1. A. 116, 1878; I. L.
Bep.3Cal.806; 3 Cal. Sep. 520.
8. Mortgage — Lien of Mortgagee on
Sale of Right, Title, and Interest of Mortgagor-
Writ of fi. fa. —Purchaser at Sheriff's Sale at
Instance of Mortgagee, without Notice of Mort-
gage.] i\\, M., and G. borrowed from B. a sum
of Rs. 12,000, to secure repayment of which they
executed in her favour a joint and several bond
in May 1863, for payment of the said sum
interest on the 6th of May 1864, and a
warrant to confess judgment on the bond. On
the 37th of April 1864, N., M. and G. executed
a mortgage, in the English form, of certain
property to B., purporting to do so in pur-
suance of an agreement alleged to have
been entered into between them and B. at the
time the money was advanced in 1S63 ; but the
evidence did not establish such agreement.
Under a writ of fi. fa. issued previously to the
mortgage of 1864, vie., on the 23rd of March
1864, ina suit against M. and , V., the Sheriff sold
to A., on the 7th of July 1864, the right,
SHERIFF'S SALE-ranW.
and interest of M. and N. in the mortgaged
property. Assuming that an agreement to
mortgage had been entered into in 1863, A.
had no notice of such agreement. After this, a
of fi. fa. was issued by the Sheriff, at the
ince of B., in execution of a decree which
ad caused to be entered on the bond of May
1863 ; and under that writ the Sheriff, on the
id of Febuary 1866, sold the right, title, and
:rest of A'., J/., and G. in the mortgaged pro-
perty, and A. became (he purchaser. The
purchase. money of this sale was paid to B., and
A. entered into possession of the property.
a suit by B. against A. and others on the
mortgage of the 27th of April 1864, for fore-
closure or sale of the property, Phear,].,held: —
That ihefi. fa. issued on the 33rd of March
1864, previously to the mortgage, must be taken
have operated against the shares of M. and
from the date when it was issued ; that even
if there was an agreement to mortgage, as alleg-
ed, then, although as against A'., M. and G. them,
s, a Court of Equity would treat such
actual 1
mid r
: do 5.
gage, yet
chaser under thejt/a. without notice ; and that
of the 7th July 1S64, therefore, passed
the shares of M. and N. to A. free of any rights
olB. Further, that the sale by the
Sheriff of the Iznd February 1866, having been
effected at the instance of B., for the purpose of
realizing the mortgage debt, was operative, as
between B. and A., to pass to A. the entire
shares of A'-, M., and G. free of B.'s mortgage
lien.
Held, on appeal, that no agreement to mort-
gage being established, the sale by the Sheriff
to A. in 1864 overrode the mortgage to B., and
passed to A. the shares of M. and A'.
Held, further, that the sale by the Sheriff in
1866 being of (be right, title, and interest of N.,
M„ and C, and made at the instance of B., with-
out notice of her mortgage, and B. having
received the purchase -money, which would
appear to have been estimated on the value of the
unencumbered shares, and no objection having
been made to the sale by the mortgagors, who
had allowed A. to hold unchallenged posses-
sion ever since, the entire equitable estate in
the share of C. must be taken to have passed to
A.
A mortgagee is not entitled, by means of a
money decree obtained on a collateral security,
Digitized byGOOC^Ie
<
J
DIGEST OF CASES.
SHERIFF'S BALE— contd.
such as a bond or covenant, to obtain a sale of
the equity of redemption separately. To allow
him to do so would deprive the mortgagor of a
privilege which is an equitable incident of the
Contract of mortgage, of'*., a fair allowance of
time to enable hira to redeem the property.
BHUGaOOBUTT* Dosser. Shamachurn Bose.
Garth, C. J., and Ponti/ex, ] I. L. Rep. 1
Cal. 387.
See Tukaram *. Ramchundra...
I. L. Hep. 1 Bom. 314.
Under Mortgage. 5.
4, Warranty of Title— Act VIII. of
1S59, ft *I2. 249. *5*. 25^ t" 258.] A purcha-
ser of immoveable or moveable property, at a
sale in execution of a decree under the provi.
sions of Act VIII. of 1859, has no right to recover
his purchase- money, though it may turn out that
the right, title, and interest of the judgment
debtor was nothing at all, unless the sale itself
be set aside, and the sale will not be set aside by
reason merely of the defect or absence of title
in the thing sold on the part of the execution
debtor ; but if in a sale by the Sheriff there is
not only no disclaimer of warranty of title,
but even an express assertion that the goods
soldare the property of the execution debtor, the
Sheriff and the execution creditor, if responsible
for such assertion, are bound by such warranty
to this extent at least— that the Sheriff, if he ha
still in his hands the purchase. money, or th
execution creditor, if the money has been pai
over to him, is bound to restore it to the put
chafer, if it turns out that the purchaser has nt
got that for which he has paid.
Section 258 of Act VIII. of 1859 applie
wherever a sale is set aside, whether for irregi
larity in publishing or conducting the sale, or ft
other grounds; and though the right of the
purchaser to recover back his purchase-
in case of a sale being set aside is by that Act
given expressly only where the sale is of
able property, yet on general principles the
same consequence will follow where a sale of
moveable property in execution is set aside.
Where, therefore, certain shares were attached
by the execution creditor, as the property of his
execution debtor, and were afterwards sold in
execution by the Sheriff, and the execution
ditor, caused (or allowed) to be introduced into
the order for attachment, the warrant of attach-
ment, the order for sale, the warrant of sale,
and in the advertisement or proclamation,
8 HE BIFF'S SALE— contd.
words containing a statement that the property
itlached and sold in execution was the property
of the defendant, whereas it was not the property
of the defendant: —
Held, that the purchaser at the execution sale
\s entitled to have the sale set aside and the
purchase-money returned to him. The Sheriff's
lability to the purchaser in such a case ceases
when he has paid over the proceeds of the exe-
ion sale to the execution creditor, and the
purchaser's remedy thereafter is against the
ion creditor only. FRAWjt Bejanji Das-
Hormasji Pestanji Framji. Green, J...
I. L. Sep. 2 Bom. 258, 1877.
SHIP— Bill of Lading— Exception of Liability
for Loss by Fire.
See Hill of Lading.
Chin Hong & Co. v. Seng Moh &
Co.-.L L. Rep. 4 CaL 736.
SIONATiniE-On Acknowledgment of Debt
— Heading of Letter.
See Acknowledgment of Debt. 1.
MatHuKA Dasb. Babu Lai. I.
L. Rep. 1 AIL 683.
By Agent of Acknowledgment of Motga-
gor's Title.
See Acknowledgment of Mortga-
gor's Title. 3.
Kakmani Bibi 1. Hur.ASA Khar...
I. L. Uep. 1 AIL 642.
SIGNATURE OF ATTESTING) WIT-
NESS TO WILL NECESSARY,
MARK INSOFFICENT.
See Indian Succession Act X. of
1865, § 50; CI. 3.
Fernandez v. Alves...I. L. Hep.
3 Horn. 382.
SIRDAR — Execution of Decree against Heir
of.
Sec Execution of Decree. 0.
Govino v. Sakharah X L.
Hop. 3 Bom. 43.
See Limitation. 62.
Sakharah v. Ganesh I. L.
Rep. 3 Bom. 193.
Execution of Decree against a — against his
Heir, not being himself a Sirdar.
5™ Limitation. 63.
Sakharah v. Ganesh I. L
Hep. 3 Bom. 198.
D,gltlzed by G00gle
( 1S97 )
DIGEST OF CASES.
BIB LAND— Not Assessed— Suit for Profits
of— by Purchaser of Share in a Mahal.
See Suit for Profits,
Muhammad Ali v. Kalian Singh.
J. L. Rep. 1 All. 658.
i Possession of — by Some Members of
Family — Partition.
See Hindu Law— Partition. 9.
PGH V. KoOER GUJRAJ
...L. Rep. II- A. 9.
.am v. Wazir Ali...
L. Rep.lAU.448.
BISTER— Right of— to succeed it
to Separated Half-Brother.
SftKHARAM S. AdHIIARI O. SlTA-
bai . .L L. Rep. 3 Horn. 8S8.
See Hindu Law — Inheritance —
Sister. 3.
Dhondu Gurar t. Gangabai...L
L. Rep. 8 Bom. 868.
•-— Right of — to succeed in Preference to
Widow of Separated Paternal Uncle.
See Hindu Law— Inheritance—
Burt*. 9.
Mahantapa V. N I LOANS AW A... I.
L. Rep. 8 Bom. 368, n.
BISTER'S BOH— Adoption of— Void among
Brahmans, Kshatriyas, and Vaishyas —
Lingayets are Sudras.
See Hindu Law — Adoption. 6. 7.
Gopal e. Hanmaht...L L Rep.
8 Rom. 373.
BHAOtRTHIBAI B. RaDHABAI
Ibid. 998.
— Adoption of — Valid among Jains.
See Hindu Law— Adoption. 1.
Hassan Au«. Naga Mal...L L.
Rap- 1 AU. 988,
SITE OP ROAD— Presumption of Ownership
of.
See Ownership of Bite of Road.
Mobaruck Shah v. Toofany..,L
L. Rep. 4 Cal. 908.
SLA V KEY— Mahomedan Law — Heritable
Rights of Emancipator of Slave.
.See Act V. of 1843.
Say ad Mib Ujmudin Khan p.
Zia-ul-Nissa Begum L.
Rep. 8 L A. 187 ; I. L. Rep.
3 Bom. 493.
SHALL CAUSE COURT JUJIGK IN-
VESTED WITH POWERS OP
SUBORDINATE JUDGE.
See Principal and Surety. I.
CRoaTHwAiTE v. Hamilton...
I. L. Rep. 1 All. 87.
SHALL OAUSE COURT— XOPUBSIL—
Arrest by— in Execution of Decree.
See Civil Procedure Code, Act X.
of 1877, | 998.
Chvnilalv. Parbhudas I. It.
Rep. 3 Bom. 680.
Execution of Decree of.
See Execution of Decree. 91.
Badan Bebajsa e. Kala Chahd
Bebajea X. L. Rep. 4
Cal. 898.
Execution of Decree of— beyond Local
Jurisdiction.
See Execution of Decree. 38.
Mansuk v. Shivarau ...I. L.
Rep. 9 Bom. 532.
Execution of Decree of— against Immove-
able Property.
5m Execution of Decree. 99.
Gopal e. Nanku I. L. Rep,
1 AIL 634.
Jurisdiction — Suit for Arrears of Rent at
Enhanced Rate.
See infra. 5.
-—Jurisdiction — Suit for Balance of Rent
collected as Plaintiff's Agent.
See infra. 7.
Jurisdiction — Suit for Baluta Hake.
See Baluta.
Naru Pira b. Naru Shi dies h.
VAR...I. L- Rep. 8 Rom. 98.
DM**] by Google
DIGEST OF CASES.
( 1400 )
BKALL CAUSE C0UK.T- -MOFUS8IL-
eontd.
—Jurisdiction — Suit for Hak-i-Chaharan or
other Zemindary Cesses.
■See infra. 4.
Jurisdiction — Suit for Maintenance.
See infra. 1. 2.
—Jurisdiction — Suit on Mortgage Bond.
See Mortgage. 28.
Pkul Kuar v. Murli Dhitr...L
L. Hop. 8 All. 697-
Jurisdiction— Suit for Moveable Property
attached, under Rs. 500.
See infra. 3.
Jurisdiction— Suit for Value of Crops Ille-
gally Distrained v
See Bang. Act vm. of 1969, 5 88.
1.
Hvdbr Au v- Japar Au I. L.
Hep. 1 Cal. 183.
Municipality— Suit against— Jurisdiction.
See Suit against a Municipality. 1.
The Ahhedabad Municipality
v. Mahamad Jamal I. L.
Bap. 3 Bom. 146.
— — Subordinate Judge with Powers of.
See Award. 1.
Balkrishna s. Lakshman...L L,
Hep. 3 Bom. 218.
— Title, Incidental Determination of Issue
of— in Suit for Rent— Subsequent Suit
to try Title.
See Res Judicata. 8.
Inayat Khan p. RaHkat Bih...
I. L. Bop. 2 ALL 87.
I. ' Maintenance — Suit far.'] In a
suit by a widow against her husband's brother
for a pecuniary allowance as maintenance, and
for the expenses of a pilgrimage to Benares: —
Held,to\\oyr\ngSidlingapa v.Sidavi (I. L.Rep. 2
Bom. 624), that the suit, though for a sum under
Rs. 500, was not cognizable by a Mofussil Small
Cause Court, there being no allegation that the
maintenance was secured by bond or other
special contract. Apaji Chintaman *. Ganga-
■ai, Westropp, C.J., Kemball and Wttt, JJ..X
L. Bep. 2 Bom. 632, 1878.
S. C. under Hindu Law— Main-
tenance of Widow. 10.
SMALL CAUSE COTJBT— MOFUSSIL -
8 Maintenance ef Wife -Suit for]
In the absence of aay special bond or other
' 'act for the payment of maintenance, a suit
for maintenance is not cognizable in a Court of
Small Causes in the Mofussil Sidlingapaa
SlDAVA, Westropp, C. J., Kemball and West,
JJ II. Bep. 2 Bom. 624,1878.
S. C. under Hindu Law— Mainte-
nance of Wife. 1.
8. Suit by Plaintiff as Omterto ream
Moveable Property under Rs. 500 — JurUdvtisn]
The plaintiff was owner of moveable property
of less value than Rs. 500, attached in execution
of a decree, and his claim to such property
having been rejected under Act VIII. of 1859,
i 246, he brought this suit in the Small Cause
Court at Ahmedabad to recover possession.
Held, that the suit was cognizable by a Mo-
fussil Court of Small Causes. Nathu Gahesh,
Kalidas Umed. Westropp, C.J., and Mefoll,
J L. L. Bep. 2 Boin. 365,1877.
4. Jurisdiction— Act XXIII- of i86t,
( 27— Suit for " Huq-i-Chaharum" or i>therZe-
mindar Cesses— Misjoinder.] The plaintiff sued
to recover from the defendants as joint decree-
holders a fourth-share of the sale-proceeds of
in houses situated on the plaintiffs estate
which the defendants had attached and sold in
:ution of a decree against a judgment-debtor,
basing his claim on an alleged village custom
.ining in the estate by which the plaintiff .as
indar was entitled to receive as "Hua-i
chaharum" one-fourth of the sale-proceeds of
property situate on the estate as a proprietary
Held, by the Pull Bench, that the claim did
not fall within any of the classes of suits made
cognizable by a Small Cause Court under Act
XI. of 1865. The claim was for a zemindari due
ptnarily payable ; it was not a claim for
money due on contract, nor for personal proper-
■ or the value thereof, or for damages. Where
chaharum" is payable in virtue of a contract,
the claim is of a nature triable by a Court of
Small Causes.
Held, by the Division Bench, that there was
1 misjoinder, as the due was payable out of
the sale-proceeds taken out of Court by the
decree-holders. Nanku b. thb Board ot
JUVMUI...I. LJtep. 1 All. 444,1877, F. B.
Diarized by Google
( 1»1 )
DIGEST OF CASES.
( 1402 )
SHALL CAUSE 0OURT — MOFUSSIL I SHALL CAUSE COURT — MOFUSBJX
—tontd. —contd.
7, Act XI. of lo$5,,i 6 »nA M— J*rlf
diction of Civil Courts— Mofussil SmaU Cause
S.— - Jurisdiction— Arrears of Rent at In-
creased Rate—Special Appeal.'} The plaintiff, s
mulgar or royal under Government, paid on his
land Rs. 56-8-0 until 1872, when North Kanara
was surveyed and his assessment increased to
Rs. 129.8-0, and he was also made liable to a
local fund cess of Rs. 4-0-0. His ancestor had
sublet the land to the defendant in 1S47, at a fixed
annual rental of Rs 150 on a tnulgeni kabulayat.
The plainitiff sued the defendant to recover the
enhanced assessment and cess. An objection
was taken in appeal that the amount claimed
being less than Rs. joo, the suit was cognizable
by a Small Cause Court, and that, therefore, a
second appeal did not lie -.—Held, that the suit
might be regarded as one for arrears of rent at
an increased rate, and, as such, was not cogni-
zable by the Small Cause Court. Barshetti e.
Venkatarakana. West and Pinhey, JJ...I. L.
Sep. 8 Bom. 104, 1879.
S. C. under Mistake. 1.
6. Act XI. of 1865, J 6, CI. 4- Bengal
Act VIII. c/4869, , 104- Act X. of 1850, i 23,
CI. 2— Special Appeal— Act XXIII, of 1861, J 2j,~]
The plaintiff, the holder of a patni taluk, by an
arrangement with the defendants, his zemindars,
paid the Government revenue and (he road-cess
tax for the year 1874, and then tendered the
balance of the rent for that year to the defen-
dants, but they refused to accept it; and he
therefore deposited it in the Munsiff's Court, in
accordance with ( 46 of Beng. Act VIII. of 1869.
One of the defendants then took proceedings
under Beng. Reg. VIII. of 1819, to recover
his share of the rent, and, notwithstanding
the protest of the plaintiff that the rent had
been already paid, obtained an order for the sale
of the tenure ; and to prevent the sale, the plain-
tiff had to pay the sum claimed for rent. In a
suit brought to recover that amount with
Held, that it was a suit cognizable by a Court
of Small Causes under ) 6 of Act XI. of 1865,
and therefore a special appeal was barred by Act
XXIII. of 1861, f 27. It was not a suit for
" damages on account of illegal exaction of rent"
within the meaning of CI. 2, f. 23 of Act X. of
1S59. Krishna Kishore Shaha 0. Bireshur
Mozoomdak. Milter and Maclean, JJ...1 L.
Rep. 4 Cal. 006 ; 3 Cal. 177, 1876.
Courts— Act XXIII. of 1&61— Special Appeal.]
A suit for a balance claimed to be due on account
of rents collected from the plaintiffs Zemindaries
by the defendant's father, acting as the agent of
the plaintiff's, is a suit in which money is claimed
1 a contract within the meaning of ( 6 of
Act XI. of 1865 ; and therefore is a suit cogniza-
ble by a Mofussil Small Cause Court, where the
claimed does not exceed Rs. 500 ; and it
the less cognizable by the Small Cause
Court because it may be necessary to go into
e accounts of both parties to see whether the
nount claimed be really due or not.
Where such a suit has been entertained by a
vil Court within the local jurisdiction of a
Small Cause Court, a special appeal will lie ;
,27 of Act XXIII. of 1861 applying only to a
suit which is properly brought in a Civil Court,
because there is no Small Cause Court having
jurisdiction to entertain it. Where a Small
Court has been constituted, that Court
alone has jurisdiction in a certain class of cases.
But where no Small Cause Court has been con-
stituted, that same class of cases must be brought
intheordinaryCourts if they are properly brought
in the ordinary course by reason of there being
no small Cause Court having jurisdiction, then,
and then only, { 27 of Act XXIII, of 1861 is
applicable. Dyebukee Nundun Sen v. Mud-
HOO MuTTyGoopta. Macpherson and Morris, JJ.
I. L. Rep. 1 Cal. 123, 1875.
SMALL CAUSE COURT -PRE BID KIT C Y
TOWN— Execution of Decree of— Sale
of Fixtures in.
See Fixtures.
Miller v. Brindaban.,1, L, Rep.
4. Cal. 848.
1. Act IX. of 1850, { 43— Power to re-
tore Case struck off for Default in Appearance.]
\ Court of Small Causes, constituted under Act
X. of 1850, can, during the same day, and at
he same sitting of the Court, ex parte, restore a.
rause once struck out under f. 42, though the
order for striking off may have been duly record-
:h a case, it would be open to the de-
fendant to apply to set aside such ex-parfe order,
.nd the sufficiency of the grounds of the appli-
ation would be one for the discretion of the
Judge. SibCmundbk Mullickb. Kissen Dval
OpADhYa. Garth, C.J. , and Macpherson, J. ..I.
L. Rep. 1 Cal. 478,1878,
D.gmzed by GoOgle
( 1408 )
DIGEST OF CASES.
( «M )
■MALL CAUSE COURT— FREBIDENCY
TOWN— amid.
2. Act IX. fl/lSjo, if 25 and fjl — Title
to Immoveable Property— Form of Suit — Amend-
mitt.] In a suit brought under f 91 of Act IX.
of 1850, the Bombay Small Cause Court has no
jurisdiction to try a question of adverse title to
the immoveable property, the subject of (he suit.
Aliter if the suit be brought under f 25 of Act
IX. of 1850, as extended by f 3 of Act XXVI
of 1S64, and if the property in dispute do not
exceed Rs. 1,000 in value.
In a suit involving a question of adverse title,
the plaintiff should be allowed to amend the sum-
mons issued under f 91 of Act IX. of 1S50, so as
to render it conformable with a claim under f 25
of Act IX. of 1850 and j 2 of Act XXVI. of
1864, if the summons were issued in the mistaken
form by the fault of the clerk of the Court, and
not of the plaintiff, and provided the Court be
satisfied that the property sued for do not exceed
Rs. 1,000 in value. Nowla Oova v. Bala Dhdr-
MAji. Westropp, C.J., and Sargent, J I L.
Rep. 3 Bom. 81, 1877.
8. -Jurisdiction — Immoveable Property.']
The effect of ( 2 of Act XXVI. of 1864 is to ex-
tend the compulsory jurisdiction of the Courts
of Small Causes in the Presidency Towns, insuits
to recover immoveable property, to cases where
the value of the immoveable property does not
exceed Rs. 1,000.
The Small Cause Court of Bombay has, there-
fore, jurisdiction to try a suit for the possession
of immoveable property of a value greater than
Rs. 500 and less than Rs. 1,000. Walji Karimj
v. JagganaTH PrkUji. Westropp, C.J., and Sar-
gent,] ...L L. Rep. 3 Boa. 84, 1877.
4. Splitting Cause of Action — Trades-
man's Accounts— Act IX. of 1850, , 34.] A
tradesman cannot, by keeping separate ac-
counts of his dealings with a customer, split his
cause of action so as to bring his suit within the
jurisdiction of a Small Cause Court in the
Presidency towns. Cassum Jooma v- Thucker
Lilladar Kessowji. Westropp, C.J., and Sar-
gent, J X. L. Rep. 2 Bom. S70, 1878.
6. Calcutta Snail Cause Court— Con.
stitution of— Writ of Habeas Corpus Return to.]
The Small Cause Court at Calcutta is not inde-
pendent of the jurisdiction of the High Court,
nor is it a Court of co-ordinate jurisdiction with
the High Court ; but is an inferior Court, and
SMALLCAUSB COURT- -PRE 6IX)EirCT
TOWN— contd.
subordinate to the control and authority of t'ic
High Court, which has power to examine into
and determine on the validity of Orders of the
Small Cause Court, which are brought before
it regularly for that purpose.
Therefore, where on a prisoner being brought
up before the High Court on a writ of kabeas
corpus ad subjiciendum, the return of the jailor
stated that the prisoner was detained under
a warrant of arrest issued in execution of 1
decree of the Small Cause Court : —
Held, that the return was not conclusive, bot
that the prisoner was entitled to show by affi-
davits that he was privileged from arrest at the
time he was taken into custody. In the matter
of Ohritolall Dev. Phear, J ...I. L. Bap. 1
Cai 78, 1875.
S. C. under Privilege from Arrest.
SMRITI CHANDB1KA— Authority of.
See Hindu Law- -Authority of
Writers. 4. 5.
MorarjiGokaldasv. Parvatibai
I. L. Rep. 1 Bom. 177.
Lallubhai v. Mancooverbai...
I. Ii. Rep. *3 Bom. 888.
SODI RAZINAMA- -Evidence Act I. of 1871.
i 91.] The document called a Sodi Kuimiu
(whereby a party relinquishes his right of occu-
pancy of land in his possession to his landlord,
and requests the latter to register the land in
the name of another party to whom it has been
sold) is not a document of the kind mentioned
in the Evidence Act I. of 1872, ( 91, and there-
fore does not exclude the Court from basing
their findings upon other evidence, should any
suchexist. Jnnes and Forbes,]]. Venkatrsa r.
Sengoda Lit. Rep. 2 Mad. 117, 1879.
SOLE REPRESENTATIVE OF WA-
TANDAR FAMILY— Right to Offi-
See Declaratory Decree. 18.
-Khando v. Appaji.,.1, L. Rep. 3
Bom. 370.
See Married Woman's Separate
Property. 2.
Hurst ». Mussoorie Bank. ..I. L.
Rep. 1 All. 769.
Bekesford i, HunST..,Ihid. 779.
D,gltlzed by GoOgle
( 140) )
DIGEST OF CASES.
( 1*06 )
SOLICITOR'S XJXH FOE COSTS.
Set Mortgage. 38.
Bkjjnath Dabs v. Juqobrnath
Dabs I. L. Rep. 4 CaL
748.
SON OF TALUKDAR'S DAUGHTER
•i TREATED BT HIM IN ALL
RESPECTS AS HIS OWN BON."
,S» Act I. of 1869, § OH, 01. 4.
Maharajah Pertab N a ha in
Singh r. Maharanee Sa-
bhao Kooer...L. Rep. 4 L
AS28; S.C.I.L. Rep. 8
Cal. 636.
Set Juria diction. 11.
Slrdiiaree Loll v. Mansoor
Ally Khan I. L- Rep.
3 Cal. 398.
Power oftkt High Court to sanction tki trial of
a suit for land situated in the Sonthal Parganas
—Act Vtll. of 1859, f 12— 1( 38J, 386— Sonthal
Districts— Act. XXXVI [. of 1855, ft 1, a,
Jurisdiction — Beng. Reg. III. of 1873J Act
VIII. of 1859 was in force in 1876 in the Sonthal
Parganas under f 2, Sonthal Regulation III. of
1872, as regards suits triable in Courts consti-
tuted under Act VI. of 1871. Section 4 of that
Regulation (read with the notification of the
Lieutenant-Governor, dated 4th August 1873)
vesting the Deputy Commissioner of the District
of the Sonthal Parganas with the powers of a
District Judge as described in Act VI. of 1S71,
has the effect of making the Sonthal Parganas
a district as defined by f 386 of Act VIII. of
1859 ; and therefore the High Court has power,
under f 12, Act VIII. of 1859, to sanction the
trial of a suit for land situated in the Son-
thai Parganas, in which the value of the subject-
matter exceeds Rs. 1,000, in the Civil Court
competent to try it, Kaliprosad Rai v. Me.
her ChAndro Rov. Ainslitzad McDonnell, J J.
I. L. Rep- 4 Cal. 333, 1878.
80UDAYAKAM.
See Hindu Law — Alienation by
Widow. 3.
Madhavarava *. Tirtha Sam 1.
I. L. Rep. 1 Mad, 307.
SPECIAL APPEAL— Abscr, ce of Notice of
Action, Pica of— not allowed on.
Set Act XV. of 1878, §§38 and 48.
Municipal Comhittse of Mora-
DABAD V. CHATR1 SlNGH...
I, L. Rep. 1 All. 268.
— As to Costs — none unless Order Illegal.
See Costa. 3.
Futeek Parooeb o- Mohender
Nath I. L. Rep. 1 Cal.
88S.
Evidence — Power of High Court to consi.
der the Evidence on.
See Contract, 4.
Nahak Rah v. Mbhin LAL...L L.
Rep. 1 AU. 487.
— Evidence of Error of Calculation in Con.
version of Coinage.
See Enhancement of Rent. 2.
Mber Mahomed Hossein *.
Forbes. ..L. Rep. 8L A. 1.
— Ex.parte Decree — Rehearing granted after
Time Limited.
See Civil Procedure Code, Act Tin,
Of 1809, § 119. 3.
RllNGLALL MlSSBR IT. ToilllUM
Misser...1. L. Rep. 3 CaL
114,
Limitation.
Set Appeal— Civil. 81.
Mokuo. Gofal...I, L. Rep. 3
Bom. 130.
— Non-Joinder of Local Government — Plea
of— Quart if Good on.
Set Act XV of 1873, §§ 38 and 48.
Municipal Committee op Mora-
DABAD n. CHATRI SlNGH... I.
1. Rep. 1 All. 069.
Non-Joinder of Parties.
See Co-Sharors of Land. 4.
BovDOHATH Bag t. Grish Chun-
der Rov... I. L. Rep. 3 Cal.
36.
Objection as to Guardian de facto not being
Legal Guardian cannot be taken for First
Time on.
See Mahomedan Law — Sale by
Guardian.
Hasan Ali t. Mehdi Husain...
I. L. Rep. 1 All. 633.
Digitized by GoOgle
DIGEST OF CASES.
( "<» >
SPECIAL APPEAL -conid.
— Objection to Illegality of Oath other than
in Prescribed Form, admin is terad by Ar-
bitrators, first taken on.
See Oatha Act X of 1873, §§ 8. 10.
18.
Wali-uL-La v. Ghulaw Ali„.I.
L. Rep. 1 AIL 586.
— Objection not taken in Memo, of —
allowed to be taken at Hearing— Absence
of Notice to Quit
See Practice— Oivil. 10
BABAJIe. NAKAVAH...I. L. B*p.
3 Bom. 840.
— Objection as to Want of Possession of
Plaintiff's Vendor.
Ste Appeal— OiviL 84.
— By Respondent from Judgment ex parte.
See Appeal— Civil. 6. 28.
Kali Kishore Roy v. Dhl-hunjoy
Roy. ..I. L. Rep. 8 Cal. 338.
Exp. MADALATHA...I. L. Rep. 2.
Had. 75.
— Review— Order admitting, without Legal
Ground may be questioned on.
See Review. 3.
Rov Mbgbaj b. Bebjov Gobind...
L L. Bep. 1 OaL 197-
— Right of Purchaser from a Defendant, after
Decree against the latter, to carry on — on
Death of Defendant.
See Abatement of Appeal— Civil.
Mobbshwar v. Kushaba...I. L.
Bep. 3 Bom. 348.
In Suits of a Nature Cognizable by a Small
Cause Court.
See the Cases under Small Cauae
Court*— Moftusil.
See Appeal— Civil. 83.
— Suit Cognizable by Small Cause Com
entertained without Jurisdiction by Civil
Court, within Limits of Small Cause
Court's Jurisdiction.
See Small Cauae Court Mofuaail,
7.
Dyebuxee «. Mudhqo Mutty,..!.
L. Bep. 1 Cal. 133,
SPECIAL APPEAL-™*^.
Suit Cognizable by Small Cause Court —
Suit (or " Huq-i-Chakarum."
See Small Cauae Court -Mo fuaeil.
4.
Nanku v. Board of Revenue...
LL.Bep.l All. 444.
See Act XXXTX of 1861, § 37.
B I CHUCK Si UGH *- NaGRSHAB
Nath XL. Bep. 3 AIL
119.
SPECIAL CITATION — Step-Mother —
Caveat.
Set Administration. 8.
■ In the Goods ef Hurry Doss 8a*.
NERJEE...I, L. Bep. 4 Cal
87.
SPECIAL COTJBT AT BAHOOOHT—
JURISDICTION OP— To entertain
Appeal from Sentence of Judicial Com-
missioner in Case transferred by him from
Sessions Judge.
See Jurisdiction. 17.
Express i. TsitOoe.-.I. L. Bep.
4 Cal. 607.
SPECIAL DAMAGE FROM PUBLIC
NUISANCE.
See Right to Sue. 1. 3. 3. 4. 5.
SPECIAL LEAVE TO APPEAL— Mate-
rial Misstatement in Petition for,
Set Bengal Beg. VUL of 1819,
§ 8, CI. 3. 1.
Raw Sabuk Bose ». Monhohini
Dosser, L. Bep. SLA.
7L
— — Nunc pre tunc.
See Practice— Civil. 1.
Gajadhur Peeshad •. The Two
Widows op Emam Am Beg...
L. Bep- SLA. 306.
Against Order Suspending Pleader.
See Practice— Privy Council. 6.
In the matter o/ Quarry I. L.
Bep. 3 AIL ftii.
Practice.
Set Practice— Privy Council 0. 7.
8.9.
Diaxized by Google
DIGEST OF CASES.
( 1«0 )
SPECIALLY REGISTERED BOND—
Appeal from Order in Execution of De-
ft* Appeal-CiviL 7. 11. 19.
Bhvhub Chundek o. Golap Coo-
mary i. L. Rep. 8 Cal.
517.
Ramanand if. Bank of Bengal...
I. L. Rep. 1 All. 377.
WlLAYAT-UN-NlSSA IP. NaJIB-UN-
Nissa Ibid. 583.
1 Limitation for Execution of Decree on.
Set Appeal— Civil. 12.
WlLAYAT-UN-NlSSA V. NAJIB-UN-
Nissa L L.liep. 1 All.
683.
See Limitation. 78.
Jai Shankar o. Tetlby.-.I. L.
Rep. 1 AIL 598.
SPECIALLY REGISTERED MORT-
GAGE BOND— Decree on.
See Sale in Execution of Decree. S.
Akhe Ram v. Nand Kishore...
I. L. Rep. 1 All. 336.
SPECIFIC PERFORMANCE.
See Limitation. 61.
Ahmed Mahomed v. Adjein Doo-
fly...LL. Rep. 2CaL 323.
— Of Agreement to Lend Money on Mortgage.
See Specific Performance, a, infra.
— — Of Agreement to Refer to Arbitration.
.See Contract. 8.
Kobgler v. The Co ring a Oil
Co...I. L. Rep. 1 Cal. 43.
468.
— — Of Contract to give in Marriage.
See Injunction. 1.
Gunput Narayan Singh... I. L.
Rep. 1 Cal. 74.
— Of Contract to settle Property on Adopted
Son.
See Hindu Law— Adoption. 16.
Rhallac. Parbhu.-.I. L. Rep.
3 Bom. 67.
— Suit for
See Misjoinder of Causes of Ac-
tion.
Gnu an i v. Rah Charak,..I. L.
Rep. 1 ALL 508.
SPECIFIC PERFORMANCE— <™ id.
1. Kaboolevt.} One of the terms of a
Kabooleut, equally binding on the Government
and a xamindar, the parties concerned, was as
follows ;— " The construction of bkeries (small
embankments), the excavation of the silt of ihals;
the closing (the mouths) of the Hals; the con-
struction of gangura (large embankments), &c,
in connection with the salt and sweet lands of
the said parganna, shall be made by the Govern-
ment of the Honourable Company." In a suit
by the zamindar to obtain an order upon the
Government to re-excavate and clear the water-
passage of a particular ihal situate within the
parganna, the subject of the kabooleut, and which
formed the connecting link between two rivers,
and had from the time of the decennial settlement
been used as the outlet for all the water which
accumulated on the plaintiff's land : —
Held, that it was not a case in which the
Court would decree specific performance. The
terms of the kabooleut were extremely vague, and
't would be dangerous to impose on the Govern-
ment, on the strength of such terms as '• the
excavation of the silt of ihals, the closing of the
mouth of khatsai" so onerous an obligation as
the plaintiff sought to impose. There was
moreover, an objection on principle to requiring
the Government, or any person whom it was
sought to bind by such words, not to do that
which might, on a proper consideration of the
whole subject, carry out the purpose obviously
intended, but to do a particular thing because
that particular thing was once done in view of
lhe same object. Ch under Sekhur Moo-
kerjee e. The Collector or Midnaporb.
Jackson and Kennedy, JJ I. L. Rep. 3 CaL
.464; 1 CaL Rep. 384.
1878.
St. Agreement to Lend Money on Mart.
iage.~\ In a suit to compel the defendant to
advance to the plaintiffs the unpaid balance of
a sum of money which the defendant had agreed
to advance on a mortgage, and for which a
mortgage had been executed and delivered to
the defendant ; —
Held, that the Court ought not to make a
decree for specific performance of such agree-
ment. The plaintiffs could obtain compensation
or damages in a suit properly framed against
the defendant for breach of his contract, or
redeem the mortgage by payment of the amount
due, if they wished to prevent the defendant
Digitized by 'GOO^Ie
( Ml )
DIGEST OF CASES.
( 1«I >
SPECIFIC PERFORMANCE - -contd.
fromassigning the mortgage. Anakaran Kasmi
v. Saidamadath Avulla. Kernan and Forbtt,
j] I. L. Bep. 2 Mad. 79, 1879.
SPECIFIC BELIEF ACT X. OF 1877—
Injunction under.
See Injunction. S. -
Dhuronidhur Sen e. The Agra
Bank I. L. Bep. 4 CaL
380.
— i ij, a. b.
See Misjoinder of Cauiee of Action.
Gumani e. Ram Charan...L L.
Bop. 1 All. 656.
*4»-
See Declaratory Decree. 16.
Ganpatgir v. Ganpatqir—L L.
Bep. 8 Bom. 980.
SPECIFIC STATEMENT OF BELIEF
GRANTED BT DECREE.
See Decree. 3. 8.
Kakoal Chandra v. Kanvr Lall.
L L. Bep. 4 CaL 69.
Thahhan Singh v. Ganoa Ram.
I. Ii. Bop. 8 AIL 348,
Harsukhip.Meghra].. .Ibid. 845.
SPECIFIC TITLE— Alleged in Suit for
Possession— Failure to prove— Adverse
Possession.
Set Adverse Poaaeeaion.
Gossain Dass v. IssurChundbr
I. L. Bap. 3 Cat 224
Declaratory Decree. 6. 6a.
Goluck Chundbr b. Nundo
Coomar...L L. Bep. 9. Cal.
418.
SPLITTING CAUSE OF ACTION.
See the Cases under Oivil Procedure
Code, Act VIU. of 1669, S "
— Omitting to seek Decree for Possession
Suit for Declaration of Title is not-
Ste Oivil Procedure Code, Act VIU.
of 1869, § 7.1.6.
Tulsi Ram *. Ganqaram...I. L.
Bep. lLft.ll. 202.
Darboo. Kesho RaI-.I. L. Bep,
2 AIL 368.
Omission of Part of Claim— Leave to with-
draw.with Liberty to file Fresh Suit includ-
ing Part omitted— Second Suit not barred.
SPLITTING CAUSE OF ACTION— ctmtd.
SwCivilProcedarnCode, Act VUL
of 1869, § 7. 3.
lLAHl BAKSH B. IllAlf Baksh...
L L. Bep. 1 AIL 324.
—— Omitting Part of Claim through Ignora
of Facts, caused by Defendant's Fraud,
See Oivil Procedure Code, Act VHX
of 1869, S 7. 3.
Lachman Singh v. Sanwal
Sihoh L L. Bap. 1 AH
643
Separate Account* of Tradesman.
Set Small Cauae Court— Preaid encj
Town. 4.
Cassuh v.Thacrur Lillaohar...
L L. Bep. 3 Bom. 070.
- Simultaneous Suits.
Set Civil Procedure Code, Act
vm. of 1869, §74.6.
K ales har Prasad *. Jag an Nath.
I. L Bep. 1 AIL 660.
Ram Turritn K00NO00 ». Hos-
sein Baksh...L Ih Bep. 8
CaL 786.
STAMP— On Agreement Eiecutedand Stamp-
ed in England, subsequently Executed in
India.
See Contract. 17.
Oakbs & Co. ». Jackson .. L L.
Bep. 1 Mad. 184.
— On Assignment and Retransfer by En-
dorsement of Policy of Assurance.
See Stamp. L
On Bank Memorandum advising Receipt
of Money for Customer's Account from
Third Person— None Necessary.
See Stamp. 6.
On Entry in Hat-Ckitta.
See Stamp. 6.
Instrument of Transfer.
See Stamp. 4.
Insufficiently Stamped or Unstamped Do-
cument—Admission of— Appeal.
See Appeal— Civil. 80.
Kkoob Lall *. Juhglk Singh,.,
I. L. Bep. 8 Cal. 787.
D.gmzed by G00gle
DIGEST OF CASES.
< 1*1* )
STAMP— contd.
See Error not affecting the Merits.
Afzul-un-Nlss* v, Tej Ban...
I. L. Bap. 1 All. 725.
See Registration. 6.
Safdar Au Khan d. Lachman
Das-.-L L.tlep. 8 AIL 604.
— — Insufficiently Stamped Hundi — Evidence-
Penalty.
See Stamp. 3.
On Leltet amounting to Release.
Ste Registration. 6.
Safdar Au Khan e. Lachman
Das ..I. L. Hep. 2 AIL 604.
On Mortgage of Property not in Esse at
Date of Mortgage.
See Mortgage. 32.
MORAN ». MlTTU BlBHE ...I. I,.
Sep- 3 Cal. 66.
■^— On Power of Attorney to receive Money.
See Stamp. 3.
On Release.
See Registration. 8.
Safdar Ali Khan e. Lachman
Das ..I. L. Rep. S AU. 604.
Vaialatnama.
See Vakalatnama.
Anonymous. I. L. Bop. 8 Cal. 767.
1. Stamp Act XVIII. of 1869, §§ 34,41,
Sched. II., CI. S-W— Policy of Assurance— Assign-
ment and Retransfer by Endorsement.] A policy
of assurance bore three endorsements !— thefirst,
an assignment of all the right, title, and interest
of the assured to the P. Bank; the second, a
retransfer from the P. Bank to the assured, all
claims having been satisfied; the third, an assign-
ment by the assured similar to the first assign-
ment, to Messrs. B. R. S. and Co.
Held, by Markby and Ainslie, ]J.— That the
first and the third endorsements were liable, aa
collateral instruments under Sched. II., CI. 20,
of Act XVIII. of i860, to a stamp of one rupee,
and that the second endorsement was not charge-
able with stamp duty.
Held, by Garth, C.J. —That none of the en.
dorsements were chargeable with stamp duty.
In the matter o/Thomson's Policy. ..I. t. Rep.
8 Cal. 847, 1877.
91
BTAMP— contd.
8. Assignment—General Power of At-
torney.] An instrument authorizing a person to
ve on behalf of another such sums as should
become due in the course of the execution of a
certain work, is not an assignment of money,
but a power of attorney, and is covered by a
stamp of Rs. 8, whatever may be the amount
recoverable under it (Act XVIII. of 1869, Sche-
dule II., Art. 33). Bhagvandas Kishordas v.
Abdul Hussein Mahomed Ali. West and Pin.
hey, JJ I. L. Bep. 8. Bom. 40, 1678.
8. Act XVIII. of 1869 f 20— Hundi—
Insufficient Stamp— Penalty— Evidence.] Insuf.
ficiently stamped Hundt's cannot be received in
evidence even on payment of penalty under f 10
of Act XVIIL of 1869. Mothoora Mohun
Rov o. Peary Mohun Shaw. Pontifex, ]....
I. L, Rep. 4 Cal. 309 ; 8 Oal. Rep. 408,
1878.
4. Act XVIIL of 1869, i 29, Sched. II.,
Art. 38 — Instrument of Transfer — Intention to
evade Payment of Stamp Duty.] The accused
was prosecuted under Act XVIII. of 1869, ( 20,
for executing a document on insufficiently
stamped paper. The document recited that
" whereas A. and B. have sold to me two gandas,
three cowries of land under a kobala, dated 9th
of Jeyt 1283, in lieu of a consideration of Rs. 695,
and whereas I have returned to the vendors in
all four cottas of land, worth about Rs. 25,
and whereas in lieu of the said land the said
vendors have given me four cottas of Zerait
land held by them, now I or my heirs shall have
no objection or contest whatever in regard to the
mutual exchange of land between the vendors
and me, the purchaser, hence I have executed
this chilli by way of conveyance or deed of ex-
change which may be of service when required."
This document bore a stamp of eight annas, and
was executed only by the accused, and pre-
sented by him for registration : —
Held, that the document was an instrument
of transfer within the meaning of Art 38, Sched.
II., Act XVIlI.of 1869.
Held also, that a Magistrate is bound, for the
purpose of ascertaining whether any and what
penalty should be imposed, to consider whether
a person prosecuted under § 29 of that Act had
any intention to defraud by evading payment
of stamp duty. Empress v. Dwarkanath
ChowDHRV, Garth, C.J-, Kemp, Macpherson,
Markby, and Ainslie, JJ I. L. Rep. 8 Oal.
see, 1877.
Diarized by Google
DIGEST OF CASES.
STAMP— contd.
5. Act XVIII. of 1869, Sched. II., Art.
S— Entry in Hat-chitta.] When an account
in a hat-chitta has two sides to it, the one
headed " amount advanced," and the other
headed " amount received" ; and the ai
actually due on such account varies from
to time, and depends on the relation of the
amount advanced to the amount received, and
the signature or seal of the borrower is affixed
lo each entry showing an advance, such
entry is not a note or memorandum whereby
any debt is acknowledged to be due, and doe:
not require a stamp under Art. J, Sched. II. o
Act XVIII. of 1869. Brojender Coomar »
Bromomove ChowdHrani. White and Hitter
JJ I- L. Rep. 4 CaL 885; 3 Cal. Rep.
680, 1878.
8. Act XVIII. of 1869, Sched. II., Art.
■J— Bant Memorandum Receipt.'] A Bank me.
morandum informing one of their customers
that money has been paid to his account by a
third person and has been credited to that
account, does not require to be stamped, under
Art. 7, Sched. II. of Act XVIII. of 1869. In
the matter of Act XVI I L of 1S69 and o/The
Uncovenanted Service Bank. Garth, C.J.,
Jackson and Pontifex, JJ...I. L. Bep. 4 Cttl
829 ; 3 Cal. Bep. B97, 1879.
?• Penalty— Tender of.] Where an
unstamped document to which the provisions of
J 20 of the Stamp Act XVIII. of 1869 apply,
has been rejected as inadmissible in evidence
for want of a proper stamp, the amount of
stamp duty and penalty prescribed not be
tendered when the document was offered
evidence and rejected, the Appellate Court has
no authority to direct the reception of the
instrument on a subsequent tender of the
amount. Champabatyv. Bihi Jibltk. Jackson
and Tottenham,]]...!, L. Bep. 4 Cal. 213,
1878.
8. Act XVIII. of 1869— Conveyance—
Non-Liability to Additional Duty as Indemnity
Bond.] Where a document, purporting to be
a conveyance, and for only one consideration,
contains words which merely express, though
very informally, the usual covenants for title
which every properly drawn English conveyance
contains, those words cannot be considered as
constituting an indemnity bond, so as to render
the document liable to stamp duty as an I
STAMP— contd.
indemnity bond in addition to the stamp duty
to which it is liable as a conveyance. Anon.
Morg an, C.J., and Hotlmway, J....I. L. Bep. 1
Had. 138, 1876.
STAMP ACT XVIXZ. of 1869-§ 12.
Sec Probate Duty. 1.
In the matter of the last Will and
Testament of Rakchandm
Lakshuan I. L. Ben. 1
Bom. US.
Sao.
See Stamp. 3.
§29.
See Stamp. 4.
Schedule II., Art. 5.
See Stamp. 5.
Schedule II., Art. 7.
See Stamp. 8,
Schedule II., Art. 20.
See Stamp. 3.
— ~" 5 43 — Magistrate authorized under— to
Prosecute cannot try the Persons he pro-
secutes.
See Procedure— Criminal.
Empress v. Gangaohur Bkcnjo,
I. L. Bep. 8 CaL 622.
— Sched. II., Art. 32— Power of Attorney.
See Stamp. 2.
Bhagvandas Kishordas 0. Abdul
Hussain Mahomed An. ..I.
L. Rep. 8 Bom. 49.
— Sched. I., CI. 10— Mortgage of Property
not in Esse at Date of Mortgage.
See Mortgage. 23.
MORAN*. MlTTU BlBER I. L,
Bep. 2 OaL 68.
— Sched. II., Art. 38— Instrument of Transfer.
Sec Stamp. 4.
Empress t. Dwarkanath Chow-
dhrv I. L. Bep. 2 CaL
399.
STAMP DTJTY— Intention to Evade.
See Stamp. 4.
Empress v. Dwarkanath Chow-
dhrv L L. Bep. a CaL
Diarized by Google
( 1417 )
DIGEST OF CASES.
STANDING CHOPS— Immoveable Property
—Limitation Act IX. of 1871, Sched. It., Art.
a6—Act XV. of 1877, Sched. II., Arts. 36, 37.]
Standing crops arc immoveable property within
the meaning of the Limitation Act IX. of 1871,
and to a suit for compensation for crops wrong-
fully removed by the defendant, Art. 40 and not
Art. 26 of Sched. II. of Act IX. of 1871 is
applicable. The definition given of immoveable
property in the Registration Acts is expressly
given for the purposes of those Acts, and cam
govern the decision of questions of lim:
tion. Pan da H Gazi v. Jbhnuddi. Milter and
Maclean, JJ...I. L. Rep, 4 CaL 665 ; 2 Cal.
Rep. 626, 1878.
STATUTE EXPOSING TAX-Construc-
tion of.
Set Madras Act III. of 1871.
Leman e. Damodarava I. L,
Rep, 1 Had. 163.
STATUTE 63 GEO. HI., C. 166, §§ 88,
89, 1O0.
See Jurisdiction. 13,
collectob of sea customs,
Madras v. Panniar Cht-
...L L. lisp. 1
STATUTE 3 AND 4 Wm. IV., C 86.
Sec Legislative Power of the Go-
vernor General in Council.
1.3.
Empress e. Burak.,,1. L. Rep.3
Cal. 63 ; I. L. Rep. 4 Cal.
172; L.Rep.6 I. A. 178;
L. Rep, 3 App. Ca. 889.
143.
See Cession of Territory. 2.
Damodhar it. Ganesh..,10Botii,
H. C. Rep. 37 ; I. L. Rep,
l Bom. 367 ; L. Rep. 3 I.
A. 102 } L. Rep. 1 App.
Ca. 332.
STATUTE 6 AND 7 VICT., C. 94.
Sec Offence committed in Foreign
Territory.
Empress v. Dussaji Gvlam Hus-
sein...I. L. Rep- 3 Bom.
334.
it Zanzibar.
Wagji Korji ». Thari
I. L. Rep. 3
STATUTE 16 AND 16 VICT., C. 86, § 60.
See Declaratory Decree. 2.
KATHAUA NaTCHIARS. DORASINGA
Tever...L. Rep. 2 I. A.
169; 16Beng. L. Rep. 83.
STATUTE 16 AND 17 VICT., 0. 9S.
See Legislative Power of the Go-
vernor General in Council. 2.
Empress b, Burah...L L> Rep.
3 Cal, 63 ; I. L. Rep. 4 Cal.
178 i L.Rep.6 I. A. 178;
L. Rep. 3 App. Ca. 889,
STATUTE 17 AND 18 VICT., C. 77.
See Legislative Power of the Go-
vernor Genaral in Council. 2.
Empress 0. Burah...I. L. Rep.
3 Cal. 63 ; I. L. Rep . 4 Cal.
172; L. Rep. 6 1. A. 176;
L. Rep. 3 App. Ca. 899.
STATUTE 21 AND 22 VICT., C 106.
See Cession of Territory. 2.
Damodhar t. Casein. .10 Bom.
H C. Rep. 37; I. L. Rep.
1 Bom. 367 ; L. Rep. 3 I.
A. 102; L. Rep. 1 App,
Ca. 332.
STATUTE 24 AND 26 VICT., C. 67,
S32.
See Cession of Territory. 2.
Damodhar?. Ganesh...10 Bom.
H. C. Rep. 37 ; t L. Rep.
1 Bom. 367 ; L. Rep. 3 1. A.
102 ; L. Rep. 1 App. Ca.
332.
Set Legislative Power ortheGover-
nor General in Council. 2.
Empress •. Burah,..I. L. Rep. 3
CaL 63 ; I. L, Rep. 4 Cal. 172 .
I*. Rep. 6 I. A. 178; L. Rep.
3 App. Ca. 889
§ 31— Power of Legislature to affect Juris
diction of High Court.
See Act VI. of 1874, | 6.
Feda Hossein ...I. L. Rep. 1 CaL
431-
DiQxized by Google
( 1419 )
DIGEST OF CASES.
STATUTE 34 AND 2fi VICT., C. 104.
Set Jurisdiction. 13.
Collector of Sea Customs, Mad-
ras v. Panmar Chithamba.
KAU...Z, L Bop. 1 Had.89.
See Legislative Power of the Go-
vernor General in Council. 3.
Empress e. Burah...I. L. Rep. 4
Cal. 179 ; I. L. Rep- 3 CaL
68 ; T,. Rep. S I. A. 178 ; L.
Eep. S App. Ca. 880.
S9-
See Oeuion of Territory. 3.
DAM0DHAR «. GANESH...10 BoTO.
H. C. Rep. 37; I. L. Rep.
1 Bom. 367; L. Rep. 3 I.
A. 103; L Rep. 1 App. Oa.
833.
Si* Legislative Power of the Go"
vernor General in Council. 3.
Empress v. Burah...I. L. Rep. 8
Cal. 63; IL. Rep. 4 Cal.
173 ; L. Rep. 0 I. A. 176 ;
L. Rep. 3 App. Ca. B89.
| g— Power of Legislature to affect Juris-
diction of High Court.
See Act VI. Of 1874, §6.
Feda Hosseih ..!_ L. Rep. I Cal.
431.
1. { 1 5.— Superintendence of the High
Court-Act XXIII. of 1861, j 17.] The High
Court will not under J IS of Stat. 24 and 35 Vict.,
C. 104, interfere with the decisions of the Courts
below in a suit of a nature cognizable by a
Small Cause Court, and in which, therefore, a
special appeal is forbidden by Act XXIII. of
1861, { 37, where no question of the jurisdiction
of the lower Courts is involved.
The object of that section was to enable the
High .Court to control the lower Courts or to put
them in motion, when on the one hand they
exceed their jurisdiction, by entertaining suits
which they have no right to entertain, or on the
other hand refuse to exercise powers which they
are bound bylaw to exercise. In the matter
ef the Petition of Lukhykakt Bosb. Garth, C.J.,
and Birch, J I. L. Rep. 1 Cal 180, 1875.
3. t IS— Appeal.') Per Birch J. — A
party who has preferred an appeal to the High
Court when the law gives him no appeal is m
entitled at the hearing to ask the Court to tre.
it as an application for the exercise of i
extraordinary jurisdiction under Stat. 24 and ;
Vict., C. 104, f IJ. In th* matter of the Peti-
tion o/SooRjA Kant Achraj I. L. Hep. 1
0*1.38*,
S- C, under. Beng. Reg. TUX. of
1818, § 6.
8. - — • f I 5 — Superintendent* of High
Court.'] Section 15 of Stat. 24 and 25 Vict-, C.
104, confers on the High Court no revisional
power, no power tointerfere with or set aside the
judicial proceedings of a Subordinate Court, but
confers on the High Court administrative autho-
rity, and not judicial powers.. It would be com-
petent to the High Court in the exercise of it*
of superintendence to direct a Subordinate
Court to do its duty, or to abstain from taking
on in matters of which it has not cognizance,
the High Court is not competent in the el-
se of this authority to interfere and set right
the order of a Subordinate Court on the ground
that the order of the Subordinate Court has
proceeded on an error of law, or an error of
fact.
ere, therefore, on appeal by the judgment
debtor against an order confirming a sale of im-
moveable property in the execution of a decree,
the lower Appellate Court set aside the sale, 00
ground not provided by law, and the auction
purchasers applied under that section to the High
Court to cancel the order of the lower Appellate
Court, the High Court declined to interfere.
Taj Ram v. Haesukh...L L. Rep. I All. IOI,
1870, P. B-
— ( 15 — Superintendence of High
Court.') Where a Subordinate Court has ob-
viously failed to perform its duty, and there
is no remedy by appeal, the High Court has
power, under} 15 of Stat. 14 and 35 Vict., C.
104, to point out to the Subordinate Court its
error, and to direct it to proceed according to
Where a Subordinate Judge rejected an ap-
plication for a review of a judgment, refusing
to consider the grounds of the application, be-
cause the decree of which the review was sought
was passed by his predecessor, the High Court,
under its powers of superintendence, directed
the Subordinate Judge to consider the applica-
tion. In the matter of the Petition c/ Math ha
Pars HAD. Stuart, C.J., and Turner,} I. Ii.
Rep. 1 All. 386, 1678.
Diarized by Google
( 1*21 }
DIGEST OF CASES.
STATUTE 94 AND 26 VICT., C. 104—
8. | is—Superintendence of the High
Court—Act X. of 187a, { 51S, Order under.} A
Magistrate;, having regard to the circumstances
of the case as the; appeared from the evidence
of witnesses taken before him and from police
reports made an order on the petitioners, the
proprietors of an old established hit, prohibiting
them from holding their hit on the same day as
that on which a newly -established h&t, in the
proximity, was held : —
Held, that as the Magistrate stated that a riot
or affray was imminent, and that he considered
that the direction he gave tended to prevent,
and was likely to prevent, a riot and affray, and
as the facts stated by the Magistrate showed that
there were some grounds for his opinion, he had
power, under ( 518 of Act X. of 1S72, to make
the order complained of, and the High Court
could not Interfere with such order under f 15
of Stat. 24 and 25 Vict.,C-l04, nor on any other
ground, as, under ( 520, Act X. of 1872, such
order was not a judicial proceeding. In the
matter of the Petition of Ch UNDER NatH Sen...
I. L. Bep. 2 Cat. 803, 1876, F. B.
6. ( 15 — Superintendence of the High
Court.} The High Court will not, under Stat.
34 and 25 Vict., C. 104, { 15, interfere with
judgments, decrees, or orders of a lower Court,
from which no appeal is given by law, on the
bare grounds that they are erroneous in law,
or are based on a wrong conclusion of facts.
There must be some special ground established
to justify the interference of the High Court in
such cases.
Where the appellant has another remedy
provided him by law, e.g., a regular suit, the
Court is reluctant to interfere, though the remedy
may not be quite complete.
Per Marhby, ].— The High Court will always,
uoder its power of superintendence, consider
charges of judicial misconduct in the Court below,
i*., not only misconduct of a moral kind, but an
entire misconception by the Court below of the
duty which it had to perform. Madhub Chun-
der Gtree v. Sham Chand Giree. Markby
and Mitter, JJ..X L. Rep. 3 CaL 243, 1877.
S. C under Limitation. 35.
7. — I !$,. — Superintendence of the High
Court— Appeal— Putting a Party en the Record
who was not Legal Representative of Deceased.']
A decree having been obtained against a British
STATUTE S4 AND 36 VICT., C. 104—
tontd.
subject domiciled in India, the lower Court, on
the death, intestate, of the defendant, before
letters of administration were granted to his
estate, and without any inquiry as to who were
his legal personal representatives, revived the
decree against the appellant, one of his children,
and ordered execution to proceed : —
Held, that though no appeal lay from this
order, yet, as it was clearly erroneous, and as
it must lead to the greatest possible confusion
and injury to the interests of the parties if the
execution were proceeded with in the shape in
which the proceedings stood, the High Court
was justified in setting the order aside under
j 15 of Stat. 24 and 25'Vict., C. 104. Fogose *.
Catchick- Markby and Prinsep, Jj I. L.
Bep. 3 Cal. 708 ; 2 CaL Bep. 278, 1876.
But where the Subordinate Judge, upon the
death of the defendant judgment -debtor, issued a
summons to his eldest son to show cause why he
should not be made a party to the suit, and why
the decree should not be executed against him,
and such eldest son (not having taken out letters
of administration to the estate of his deceased
father) appeared in obedience to the summons
and objected to be made a party, not on the
ground that be had not been duly made the legal
representative of the deceased, but that he had
no longer anything to do with his property, and
the Subordinate Judge, overruling the objections,
made him a defendant on the record as repre-
senting the deceased, and ordered a sale of pro-
perty to proceed accordingly : —
Held, that the order of the Subordinate Judge,
though erroneous, and one against which an
appeal would lie if preferred within the time
prescribed by law, was not made without juris-'
diction, and that as the order was not appealed
against in due time, the High Court would not
interfere under Stat. 24 and 25 Vict., C. 104,
i 1$. In the matter of PogOsB. Garth, C.)., and
Mitter, J I. L. Bep. 8 Cal. 710, n, 1877.
8. § IS— Superintendence of HighCourt.}
The High Court cannot interfere in the exercise
of its powers of extraordinary jurisdiction, under
Stat. 24 and 35 Vict., C. 104, ( 15, unless all
other remedies provided by law have been ex-
hausted. Where, therefore, certain persons who
had been convicted by a Magistrate of rioting,
without appealing to the Sessions Court, as they
had a right to do, moved the High Court under
D,gltlzed by G00gle
DIGEST OF CASES.
( 1424 )
STATUTE 34 AND 26 VICT., C. 104—
contd.
§ 15 of St.it. 24 and 25 Vict., C. 104, the High
Court refused to interfere. Empress b. Rajkoo-
har Singh. AinslU and McDonnell, JJ...I. L.
Bep. 8 Cal. S73, 577 ; 1 Oal. Sep. 363,
1878.
S. C. under Land held by Joint
Ownen,
STATUTE 39 AND 40 VICT., 0. 46-
Jurisdiction of British Consul at Zanzibar.
See Zanzibar.
Wagji Korjid- Tharia Topan...
I. L. Bep. 3 Bom. 68.
STATUTE 40 VICT., C. 7, § 88.
See Execution "of Decree. 16.
Mercer v. Narpat Rai ..I. L.
Bep. 1 AIL 730.
STAY OF EXECUTION— Application for—
is not an Application to enforce or keep
the Decree in force.
See Limitation. 78.
Fakir Muhammad v. Ghulah
Hassan. ..I. L. Bep. 1 AIL
680.
Pending Appeal — Sureties — Extent of
Liability.
See Civil Procedure Code, Act VHX
of 1869, §338.
Shivlal Khubchand v. Apaji
Bh(vrav...LL. Bep. 2 Bom.
664.
Security for — Depositof Money and Jewels.
See Execution of Decree. 4.
Sheo Giiolam Sahoo V. RaIIL'T
HossEiK-.L L. Bep. 4 Cal.
6.
■ Act VIII. of 1859, j 338 — Act XXIII. of
1861, § 38 — Miscellaneous Proceedings.} The
term " miscellaneous proceedings" in § 38 of
Act XXIII. of 1861 embraces all proceedings,
not being regular suits or appeals, for which no
procedure is expressly provided, and in that
sense it embraces proceedings in execution of a
Therefore, pending the determination of a mis-
cellaneous regular appeal to the High Court
against an order of the Court of first instance
refusing to postpone a sale in execution of a
'decree, the High Court has power, under { 38
of Act XXIILof 1861, and § 538 of Act VIII.
STAT OF EXEC VXIOS-amtd.
of 1859, to stay execution and postpone the
sale. In the matter of the Petition of Hit-
SHANKAR PARSHAD..X L. Sep. 1 AIL 178,
1876, F. B.
STHANAM LANDS— Alienability of.
See Malabar Law. 1.
Chbhminikara M. Nair e. Kii.i-
YANAWAN U. MENON...I. L
Bep. 1 Had. 88-
STOLEN CURRENCY NOTE— Cashing-
Title of Original Owner.
See Government Currency Note.
Express i. Jogoessur Mochi .1
L. Bep. 3 Cal. 879.
STOLEN FBOFEBTT— Order for Delivery
of— Appeal-
fee Government Currency Note
Empress v. Jogbssur Mochi ..L
L. Bep. 8 CaL 370.
See Criminal Pro ceduro Co do, Act
X. of 1879, §| 415 to 419. 1. 2,
In re Anpurnabai.,.1. L. Bep. 1
Bom. 033,
Empress v. Nilamber I. L.
Bep. 3 All. 376.
Voluntarily Assisting in Concealing.
See Conviction on Several Charge*.
2.
Empress o, Rameshar Rai. ..I. L.
Bep. 1 All. 379.
STRANGER TO THE BECORD, LIABI-
LITY OF, FOB COSTS OF BUTT.
See Champerty. 3.
Ram Coomar e. Chuhder Canto,
L. Bep. 4 I. A. 38 ; I.
L. Bep. 3 CaL 333.
8TBTD HAN— Daughter's Inheritance from
Father not— Mitakshara Law.
See Hindu Law— Inheritance —
Daughter. 4.
Chotay Lall v. Ciiunnoo Lam.
L. Bep. 6 L A. 16 ; I. L
Bep. 4 CaL 744.
- Descent of — Property given to Married
Woman after Marriage by Husbands
Father's Sister's Son.
See Hindu Law — Inheritance-
Stridhan.
n Shaha a. Shoka-
n Shaba. ..I. L. Bep- I
Cal. 37a
D.gmzed by GoOgle
DIGEST OF CASES.
( 142S )
STRIDHAN- «mtd.
Immoveables given by Husband not.
Stt Hindu Law-Gift. 3.
Rudr Narain Sinch v- Ruf
Kuar I. L. Lep. 1 All.
734.
- Immoveable Property inherited by Grand-
mother from Grandson is not.
See Hindu Law— Stridhan. a.
Phukak Singh v. Ranjit Singh.
I. L. Rep. 1 AH. 661.
Immoveable Property purchased with.
Set Hindu Law— Alienation by-
Widow. 3.
Hindu Law— Stridhan. 3.
Hindu Law— Will. 9.
Venkata Rama Rau d.Vbnka.
ta Suriya Rau. ..I. L. Rep.
1 Had. 381.
Incontinence of Hindu Woman does not
disqualify her from Succeeding to.
See Hindu Law— Disqualification
to Inherit. 3.
MUSSAMAT GANGA JATIO. GhASI-
ta I. I. Rep. 1 All. 46.
Inherited Property not— according to Mi-
takshara and Bengal Law.
See Hindu Law— Stridhan. 1.
JllGUOHANv. SaRODAMOYBE L
L. Hep. 3 Oal. 149.
Moveable Property given by Husband
See Hindu Law— Stridhan. 3.
Venkata Rama Rau v. Venkata
Suriya Rau, ..I. L. Rep. 1
Had. 281.
Property acquired under Sunnud from Go-
vernment.
See Act I. Of 1868, i 22, CI. 11.
Brij Indar t. Ranee Janki Kobr.
L. Rep. SLA. 1.
— Succession to— .Incontinence.
See Hindu Law— Disqualification
to Inherit. 3.
Mussamat Ganga Jati v. Gkasi.
ta...L L. Rep. 1 All. 46.
SUBJECT-MATTER IN DISPUTE.
See Bengal Civil Courts Act VL of
1871, § 23.
Kali Charan b. Ajudhia Rai...
L L. Rep. 2 All. 148.
SUBJECT-SCATTER OF SUIT.
See Jurisdiction. 19. 20,
BAI MAKHOB i. Bl.iI.AIHI... I. L.
Rep. 1 Bom. S38.
Kalust. Vishram Ibid 643.
Suit to redeem Mortgage — Denial of Mort-
gage—Value of land.
See Jurisdiction. 16.
Kalian Das ». Nawal SlNOH ...
I. L. Rep. 1 All. 620.
SUBMERGED LAND— Non-Payment of
Rent on account of— Extinguishment
thereby of Right of Occupancy in— on
their Re -formation.
See Extinguishment of Right of
Occupancy.
Hemnath Dutt it. AshgurSin-
DAX...L L.Rep. 4Cal.894.
SUBMERGED LAND, RE FORMATION
OP.
See Alluvial Lands.
Radha Proshad v. Ram Coomar.
L L. Rep. SCal. 796.
See Re-form ati on of Submerged
Land.
Hursuhal Singh «. Svud Lootf
Alt Khan,. L. Rep. 2 L A.
28.
SUBORDINATE JUDGE- Jurisdiction of.
See Cases under Jurisdiction. 18. 19.
20.
— Jurisdiction of —Suit to redeem Mortgage-
Denial of Mortgage — Value of Land
exceeding Rs. 1,000.
See Jurisdiction. 16.
Kalian Das v. Nawal Singh...
I. L. Hep. 1 All. 630.
— Powers of — Conferred on Small Cause Court
See Principal and Surety. 1.
Crostkwaitb b. Hamilton...!
L. Rep. 1 All. 87.
— Power of — to File an Award.
i>« Award, 1.
Balkrishna v. Lakhsman.,.1. L.
Rep. 3 Bom. 319.
— Relative Position of— to District Judge
and High Court for purposes of Sanction
See Sanction to Prosecute. 4.
Iupx. ». Laskuman.-I. L. Rep,
2 Bom. 481.
Diarized by Google
( 1«7 )
DIGEST OF CASES.
SUBORDINATION OF MAGISTRATE,
FIRST CLASS, TO THE MAGIS-
TRATE OF THE DISTRICT, AND
TO THB SESSIONS COURT.
Ste Suction to Proaecuta. 5.
Gur Daval..L L. Rep. 2 AIL
206.
SUBORDINATION OF REVENUE
COURTS TO HIGH COURT AT
AIiLAHABAP.
Sn Sanction to Prosecute. 3.
Empress v.Sabsukh..X L.R«p.
3 All. 633.
SUB-SETTLEMENT— Modification of Claim
to Direct Settlement to one for a.
Set Act I. of 1869. 2. 4.
WlD
■ SHUf
Rajah Kaski Pershao...L.
Rep. 4 I- A. 188, n.
Gouri Shonkur v. Maharajah
OF BULRAMPORI.--L. ttOp.6
L A. 1 ; I. L Rep. 8 Cal
830.
— Right of Mortgagee prior to the Confisca-
tion of Oudh Estates to.
&* Act L of 1869. 4.
Gouri Shunkuk v. Maharajah
OF BULRAllPORB...L. RSp- 8
L A. 1 ; L L. Rep. 4 Oal.
836.
SUBSTANCE OF ETTDENCE— Record of
— in appealable Case.
Set Summary Trial.
Empress v- Karak Singh. ..I. 1.
Rep. 1 All. 880.
SUBSTANTIAL ftUESTION OF LAW—
Appeal to Privy Council.
S«ActVLofl874,§6.
MORAN V. MlTTU ttlBEE I. L.
Rep. 3 Cal. 328.
" SUBSTANTIAL PERSONS."
Set Beng. Reg. VDJ. of 1819, $8,
CL3.
Rah Sabuk Bose d. Monmohini
DossEE.-.L.Rep. 2L A. 71.
SUBSTITUTED SERVICE OF SUM-
MONS.
See Civil Procedure Code, Act X
of 1877, § 8a
MlRZA BlBAHKI B. SVAD HOOSEIN.
I. L. Rep. 2 Bom. 449.
SUCCESSION.
Ste the Index heading Inheritamce.
SUCCESSION TO MOVEABLE! FRO
PERTY — Marriage in India betwea
persons with English Domicile.
Stt Indian Succession Act Z. d
I860, § 4.
Miller e. Administrator Geki-
RAL OF BENGAL. . X L. E*p.
ICaLW
SUCCESSION TO IMPARTIBLE ZS-
MINDARY FOR WHICH NO PER-
MANENT SUNNUD HAS BEEN K
SUED— Right of Govtrnmtnt to Nominate t
Successor.] The Hindu zemindar of Chiuuaki-
mid, an hereditary impartible zemindary, died
without legitimate male issue, leaving a widow.
The appellant, his undivided half-brother, wis
placed in possession by the Collector as succes-
sor to the deceased ; the Government claiming
to nominate a successor in cases of zeroindariei
for which, though permanently settled, no per-
manent sunnud had been issued.
Thereafter the widow adopted the respondent
as a son to the deceased, in pursuance of Tiii
alleged wjttten authority in that behalf, and
with the consent of the natural father of th-
ipondent, himself a sapinda of the deceased,
>ugh separate in estate from him. In a suit
brought by the respondent, . by his adopth-f
mother and guardian, to recover the zemindary
with mesne profits : —
Held, that there was no foundation for the
claim of the Government to nominate a successor,
and that it was settled law that the title to the
zemindary is to be ascertained by the ordinary
law of succession. The Maiungapury Case (L
Rep. i I. A. 282} approved.
Sri Racunadka v. Sri Brozo Ki-
shoro...L. Rep.31. A. 1M,
1878; I. L. Rep. 1 Sted.
OS.
S. C. under Hindu Law— Adoption.
n of Mother's Sister's Son.
11.
8UDRAS— Adopt
Valid among.
See Hindu Law— Adoption. 4.
Chinna Nagayya p. Pkdm Na-
CAYYA...I. L. Rep. 1 Had.
D.gmzed by G00gle
( 1429 }
DIGEST OF CASES.
( 1430 )
BTOBA8-n«W.
Adoption oE Only Son.
See Hindu Law— Adoption. S. 3.
MaNICK CllUNDER v. Bhugo-
butty I. L. Rep. 3 Cttl.
443.
- Illegitimate Son of— Right to Inherit.
See Hindu Law — Inheritance —
Illegitimate Son. 3. 6.
Sarasuti i. Mannu.I. L. Rep.
2 All. 134.
VtRARAUUTHI UOAVAN 0. SlNCA-
ravelu ..L L. Bep. 1 Wad.
Illegitimate Son of— Right of— to Main-
See Hindu Law— Main ten a nco of
Illegitimate Bon. 1.
VlRARAMUTHI UdAYAN v. SlNGA-
BAVBLU...L L. Bep. 1 Mad.
306.
Lingayets are.
See Hindu La w— Adaption. 6.
Gofal .. Hanuant ...I. L. Bep.
3 Bom. 273.
"BUIT."
See Attorney and Client. 1.
Asa Ismail tr. Aba Thara .. I. L.
Bep. 1 Bom. 388.
See Limitation. 40.
Jiwan Singh c. Sarmam Singh ..
I. L. Bep. 1 AIL 97.
Act IX. of 1S71.] The word "suits" in
Act IX. of 1871 does not include " applications "
or " appeals." Dhonnessur Kooer v. Roy
Gcodrr Sa Hor .. , I. L. Bep. 2 Cal. 387, 1877,
V.B.
S. C. under Limitation. 83.
SUIT BROUGHT AFTBB ACT IX. Op
1871 CAME INTO OPERATION
ON CAUSE OF ACTION BABRED
BY ACT XIV. OF 1859.
Set Limitation. 15. 16. 17.
Nocoor Chunder Base v. Kallv
Coomar Ghosh.... X. L. Rep.
1 Cal. 328, 1876.
Abdul Karim p. Manji Hansraj.
I. L. Rep. 1 Bom. £95, p.
306.
Ramciiandra i.. Somar L L.
Bep. 1 Bom. 306, n.
Rah Chunder Ghosaul *. Jug.
GUTHONMOHINEY Dabee.,1.
L. Rep. 4 Cal. 383, 1878.
See Hindu Law— Maintenance of
Widow. 6.
Krishna v. Okilmonev I. L.
Bep. 3 Cal. 331.
SUIT FOR CALLS.
See Agreement to take Shares.
Anandji Visrah p. Nariao S, &
W. Co...L L. Rep. 1 Bom.
330.
See Company— Winding up— Con-
tributory.
London, Bombay, AND Mediterra-
nean Bank j Bhanji2utani.
I. L. Rep. 2 Bom. 118.
SUIT BY A CERTIFIED PURCHASER.
See Civil Procedure Code, Act VIII.
of 1859, §260.
Lokhee Narrain Ray Chowdhrv
v. Kalypuddo Bandopadhya,
L. Rep. 3 I. A. 164,
SUIT COGNIZABLE BY SMALL CAUSE
COUBT— Suit for Baluta Nats is.
Set Baluta.
Narsi si. Naro I. L. Rep. 3
Bom. 28.
— Suit for Balance of Rents collected by De-
fendant as Plaintiff's Agent is.
See Small Cause Court— Mofuwil.
lionized by Google
( 1481 )
DIGEST OF CASES.
{ 1432 )
SUIT COGNIZABLE BY SMALL CAUSE
COURT— tontd,
Suit for "Huq-i-Chah a rum" or other Zemin -
dary Cesses is not a— if not founded on
Contract.
Sir Small Cause Court— Mofussil, 4.
NaNKU V- BOARD OF REVENUE...
I. I.. Rep. 1 All. 444.
Suit for Maintenance not based on Contract
See SnmllCauso Court— Mofussil. 1.
2.
Appajib. Gangabai ..I. L. Rep.
2 Bom. 632.
Sim.iN(;ArA p.SiDAVA...Ibid, 824-
. Suit for Moveable Property less than
Rs. 500 Attached in Execution is.
Si-,' Smell Cause Court— Mofussil.
Suit for Value of Craps illegally distrained
See Beug. Act VIII. of 1860, § 98.
1
HYDErAj.1 v. JaFAR AU...I L.
Rep. 1 Cal 133.
Suit for Money less than Rs. 500 paid in
Excess under Execution of Decree is.
Set A« XXIII. o' 1881, § 11. 2. j
Agra Savings Rank v. Sri Ram
Mitter...I. L. Rep. 1 All.
388.
Suit against Municipality is not.
See Suit agaicst Mmiicii ality. 1.
See Small Cause Court —Mofussil. 5
Babshetti p. Venkatakamana.
I. L. Bep. S Bom. 104.
— Question of Title incidentally determined-
no Special Appeal.
See Appeal— Civil. 32.
Mohesh Mahto b. Sheikh Piru.
L L. Rep. 2 Cal. 470.
See Res Judicata. 8.
L L. Rep. 2 All. 87.
SUIT AGAINST COLLECTOR— When
appointed to take Charge of the Estate
of a Minor.
Stt Bombay Minors Act XX. of
1864, §§ 11, 16.
Narsinorav v. Lujcl'man...L L,
Rep. 1 Bom. 318.
For Acts done as President of Municipa-
lity under Act XXVI- of 1850, § 6.
See Jurisdiction. 18.
Gangauhar u- Collector of
Ahmednagar ..I. I,. Uep. 1
Bom. 628.
SUIT AGAINST COLLECTOR OF SEA
CUSTOMS AT MADRAS
Sir- Jurisdiction. 13.
Collector of Sea Customs, Ma.
DRA5, O. PuNNIAR ChITHAM-
BARAM I. L. Rep.
1 Had. 89.
SUIT COMMENCED IN FORMA PAU-
PERIS BUT CONTINUED IN
ORDINARY FORM — Computation
of Period of Limitation to.
See Limitation. 37.
Chundek Mohun Roy v. Bhlbos
Mohini Dabea ...I. L. Rep.
2 Cal. 389.
See Petition for Leave to Sue in
Forma Pauperis. 1. 2.
Skinner b. Onus-:.. I. L. Rep.
1 All. 230 ; L. Rep. 6I.A.
1S6.
SUIT COMMENCED IN ORDINARY
FORM CONTINUED IN FORMA
PAUPERIS.
See Suit in Forma Pauperis. 1,
NtKMALD. DAVAL NATH..X L.
Rep. 2 Cal. 130.
SUIT TO COMPEL ACCEPTANCE OF
PATTA— " Landholder."
See Madras Act VITI. of 1965. $ 1.
ZlNL'LABDIN RoWTEN <t. VlJIEN
VlRAPATRKN ...I. L. Rep. 1
Mad. 49.
Set Madras Act VIII. of 1869, § 9.
Sayud Miah Chand Sahib r.
Lakshmana Aiyanoar L
L. Rep. 1 Had. 40.
D.gmzed by GoOgle
( 1483 ) DIGEST OF CASES. ( 1484 )
SUIT TO COMPEL REGISTRATION. , SUIT ON A DECREE-™*/!/.
See Registration. 32.
SUIT FOR CONFIRMATION OF P08-
SESSION — Variance ~ Change of Farm of
Suit.'] The plaintiff sued for an adjudication
of his right to, and confirmation of possession of
certain lands, on the allegation that they had
been conveyed to him by one of the defendants,
and that he was in actual possession thereof, and
that his title thereto-had- been impeached by the
subsequent sale of the same lands by his vendor
to the other defendant. The Court of first in-
stance found that the plaintiff's allegation of pos-
session was false, and dismissed the suit. Held,
on appeal, that the suit was rightly dismissed,
for although a plaintiff who brings forward a
boni fide case, which he proves in substance,
though not in form, would be assisted by the
Court, in the absence of such circumstances no
such assistance would be afforded. Tercelput
Singh t. Gossain Sudersan Das. McDonnell
and Broughton, JJ I. L. Rep. 4 Cal.
46, 1878.
Set also Ram- Doolary Kooer v. Tha-
koor Roy I. L. Rep. 4 Cal.
61, p. 63.
SUIT FOR CONFIRMATION OF POS-
SESSION AND SETTING ABIDE
DEEDS.
See Setting Aside Deedi,
Tacoordeen Tewarry v. Nawab
Syed Am Hossein Khan...
I,.Rep. 1 I. A. 192.
SUIT FOR COSTS.
See Champerty. 2.
Rah Coomarh. Chunoer Canto
L. Rep. 4 I. A. 33; I. L.
Rep. 2 Cal. 233.
See Right to Sue. 11. 13.
See Limitation. 57.
Hears » Bapu Naikin T_ L.
Rep. 1 Bom. BOS.
SUIT ON A DEOREE.
1. Procedure in Execution— Sight of
Decree-holder.} The appellant having obtained
a decree against one Jaidyal, who died leaving
the decree unsatisfied, instituted a suit upon the
decree against the respondents— allecing that
they held the property of Jaidyal, being one.
seventh share in a legacy ot his father, in their
possession — for that portion of the decree
against Jaidyal which had not been satisfied, and
prayed that, after a due inquiry, adjustment of
accounts, and determination of the value of the
said legacy out of the share that might be found
due to the judgment -debt or, the amount claimed
might be decreed with interest and costs : —
Held, that a judgment does not vest in a judg-
ment-creditor any portion of the property of his
judgment -debtor. It gives him a right to have
the judgment executed, but until execution the
opertyof the judgment -debt or does not vest in
the judgment-creditor simply by virtue of th^
judgment. The decree, therefore, against Jai-
dyal did not vest in the plaintiff any right to the
property for which he was suing, and he could
I The proper mode of enforcing a decree is that
pointed out by the Code of Civil Procedure (Act
VIII. of :8s9),oi*., by execution and attachment
I and sale, or by execution and attachment, and the
appointment of a receiver under § 243. to collect
the property. Where the Legislature has pre-
scribed a particular mode of enforcing a right
created by decree, the possessor of that right is
bound to follow the procedure prescribed, and'
no other. Mirza Mahomed Aoa Au Khan
Bahaourt. The Widow of Balmakund...!..
Rep. 3 I. A. 341, 1876.
3. Suit on a Decree of Smalt Cause
Court."] A suit can be brought in the High Court
onadecreeoftheSmsllCauseCourt. Khoblau.
Baboo v. Ramchunder Bose. Kennedy J...L
L. Rep. 2 Cal. 434, 1877.
Overruled.,.5.* I. L. Rep. 6 Cal. 304,
Vol 2, CoL 1401.
SUIT ON A DECREE FOR MAINTE-
NANCE.
See Multiplicity of Suit*. 2.
SmUNOAFA p. SLdava I. L.
Rep. 2 Bom. 634, 630.
SUIT EMBRACING TWO OR MORE
DISTINCT SUBJECTS— Court Fees
5<v Court Feel. 7. -
Chamaim Rani v. Ram Dai.. I.
L. Rep. 1 All. 652.
SUIT TO ENFORCE TBE ACCEPTANCE
OF A PATTA.
5tr Madras Act VIII. of 1865, § 9.
2.
n.Ve
D.gmzed by G00gle
DIGEST OF CASES.
( 14M )
■ ii i Tender of Patla Necessary.
See Madras Act TIH. Of 1805, § 9.
Say ad Chand v. Lakshmaha...
I. L. Rop. 1 Mad. 45.
A regular suit to enforce the acceptance of
a patla is maintainable. Kakim «. Muhammad
KADAJt. Innet and Forbes, JJ...I. L. Rep. 8
Mad. SB, 1870,
SUIT ON FOREIGN JUDGMENT.
Str Jurisdiction. 7.
Mathappa Chettj v. Chellappa
Chetti ...I. L. Rep. 1 Mad.
186.
SUIT IN FORMA PAUPERIS- Court
Fees — Prerogative of the Crown.
Ste Civil Procedure Code, Act TUX
of 1809, , 308.1. 2.
GUNPUTP. COLLECTOR OP KANA-
KA...I. L. Rep. 1 Bom. 7.
Gvlzari Lai. v. Collector of
BAREILLV...I. L. Rep. 1 All.
S96.
1 - Court Fees— Prerogative Right of Crown
to Execution Sale Proceeds of Defen-
dant's Property.
See Prerogative of the Crown.
Collector of Moradabad e. Mu-
HAMAD DAtM KlIAN L L.
Rep. 3 All. 196.
Petition for Leave to Institute — Subse-
quent Payment of Court Fees — Limita-
Stc Petition for Leave to Sue In
Forma Pauperis. 1. 9.
Skinner d. Ordb ..I. L. Rep. 1
AIL 230; L. Rep. 6 I. A.
126.
See Limitation. 37.
Chunbbr Mohun». Bhubon Mo-
hini I. L. Rep. 8 Cal.
389.
Act VIII. of I8J9. H 367, yjl-Coatinua-
tion in FormA Pauperis of Suit commenced in
Ordinary Form.'} The power to allow a suit to
be continued as a pauper suit is included in the
power given to the Court to allow a suit in
forma, pauperis to be instituted. Nikml'L Chan-
dra MOOKERJBE IF, DOVAL NaTH BHUTTACHAR-
jee. Pontifex, J I. L. Rep. 2 Cal. 130,
1877. '
SUIT BY HINDU WIDOW AS ADMI-
NISTRATRIX OF HUSBAND GRAV-
ING A MINOR SON— A Hindu widow wk
has obtained letters of administration from ttr
High Court of the estate of her husband, wbobi
left a minor son, is not entitled m such character I
to maintain a suit with respect to immoveable ■
property left byhim. The Court refused to aflov j
I to proceed, adding the son as party,
t the plaintiff as manager of the infant,
but dismissed the suit with costs- Kadumbixei
. Kovlash Kami nee Dosser. Kennedy,
J I. L. Bep. 9 OaL 481, 1877.
SUIT BT A HINDU WIDOW WITHOUT
A CERTIFICATE.
See Act XXVII. of 1860, -§ 3.
Tkebpoorasoonoerv Doss be v.
Debsndronith Taco»s...L
L. Bep. 3 CaL 48.
SUIT FOR KABULXAT— By One of Seven!
Co-Sharers of Land.
Set 0o- Sharer* of Land. 1.
Gum Mahomsd v. Mokan..X L.
Bep. 4 CaL 96.
—— Enhanced Rate — Presumption ef
Landlord's Willingness to grant Pottah.] la
order to entitle a landlord to sue a tenant for a
kabuliat at a certain rent, he should either have
tendered to the tenant a pottah at the rate of
ioned in the kaSuliat, or he should be
willing to grant a pottah at that rate, and when
he brings a suit against his tenant for a kabuliat
it a certain rent, it must be presumed that he is
eady to grant a pottah at that rate. That pre-
sumption would enable him to succeed in his
suit, if the Court considers that the rent which
he claims b the correct amount. But if the
Court thinks that he is not entitled to a tabu.
the rate claimed, but at a lower rate, then
umption can be made in favour of hi*
been willing to grant a pottah at that
ate. In such a case, therefore, he would
not be entitled to a decree for a kabuliat at the
Gepeenath Jaunah v. ftleo Mellah (18 W.
Rep. 272) dissented from. Golan Mahomed v.
AH Khan (10 W. Rep., F. B , 14) followed.
Gogon Manjv v. Kashiwari Debv. Garth, C.J.,
.nd Birch,} I. L. Rep. 8 Cal. 498, 1877.
2. False Defence — Cher- Estimate of
Rent by Plaintiff.'} If a plaintiff brings a suit
kabuliat at an enhanced rent against a
D,„i„.db»Googlc
DIGEST OF CASES.
( 1«8 )
SUIT FOB KABULIAT —contd.
tenant holding a iuum under him at a wholly
insufficient rent, and the tenant sets up a wholly
false and fraudulent defence, e.g., that the
he pays is not liable to enhancement, as he holds
under a pottak which entitles him to hold so long
as he pays a certain fixed rent quite ir
of the value of his holding ; and if on inquiry it
is found that the defendant's plea is entirely
false, and that he is not entitled to hold at ai
fixed rent, but only on payment of a fair re
with reference to the value of his holding, st
if it be found that the plaintiff has at all ove
estimated the amount of rent to which he
entitled, his suit must be dismissed. Brojo
KlSHORE SlHGH*. Bharrlt Singh. Birch and
Hitter, JJ I L. Rep. 4 Cal. 663, 1879.
8TTCT FOB LAND — Jurisdiction — Letters
Patent {Calcutta), 1865, Ci. 13-InjuncHan.']
In a suit brought against the owners of a mine
adjacent to a mine belonging to the plaintiffs,
the plaint alleged that a certain boundary line
existed between the two mines, and prayed for
a declaration that the boundary line was as
alleged, and that the defendants might be re-
strained by injunction from working their mine
within a certain distance of such boundary line.
The defendants in their written statement dis-
puted the plaintiffs' allegation as to the course
of the boundary line, and alleged that their (the
defendants') land extended to a second line con.
sidei ably beyond that specified by the plaintiffs.
Both the plaintiffs and defendants had their
principal offices, and carried on business, in
Calcutta, but the mines were situated out of the
jurisdiction of the High Court : —
Held, that the suit was not to enforce an equity
against the defendants in regard to the user
and enjoyment of their own land. The sole
question in dispute between the parties was,
whether the margin o.r strip of land between
the two boundary lines belonged to the plaintiffs
or defendants. The suit was substantially
brought to have it declared as against the de-
fendants, that this strip belonged to the plaintiffs,
and was, therefore, a " suit for land " within the
meaning of CI. 13 of the Letters Patent of the
Calcutta High Court, and therefore one which,
tbe land being in the Mofussil, the Court had
no jurisdiction to try.
On the facts stated in the plaint, and before
the filing of the defendants' written statement,
the Court had, on tbe supposition that the object
STJIT FOE LAUD— contd.
of the suit was to enforce an equity against tbe
defendants in regard to the user and enjoyment
of their own land, granted an interim injunction,
and refused to take tbe plaint off the file for want
of jurisdiction. Th« East Indian Railwav
Company «. Tub Benoal Coal Company.
****', J I. L. Rep. 1 Cal. BB,1875.
2. Jurisdiction — Letters Patent (Cal-
culi,,), 1865, a. ia — Deed of Trust giving
Trustees Power 0/ Sale of Land in the Mofussil—
Suit by Creditor to hate Trusts carried out.]
The plaintiffs were, in 1875, creditors of tbe
defendants, if. and L., who were joint owners of
lin lands in the Mofussil, M. being entitled
fourteen -annas share, and L. to a two-annas
share therein. M,, acting not only for himself,
but professing to act for L. also, under powers of
attorney given to him by L., who had left India,
uted in Calcutta a deed conveying the
property to trustees, in trust, to call in such
part of the property as consisted of money, and to
:onvert into money all the rest of the
property, including the said lands; and out of the
moneys so to be realized to pay the creditors of
.V.and L. The trustees took on themselves the
of the deed, and appointed St. their agent
to manage the property until thesate under their
tion. Difficulties arose in carrying out the
1, and £., on hearing of the deed, repudiat-
ed the transaction altogether, and denied M.'\
authority to deal with his share of the property
under the powers of attorney. On this tbe
'ustees were unwilling to proceed further ia
the execution of the trusts, and were desirous
of being discharged from their responsibilities
under the trust-deed ; whereupon the plaintiffs,
as creditors largely interested under the trust-
deed, instituted a suit In the High Court of
Calcutta on its Original Side, praying that
of the deed might be carried into
effect, that the trustees might be relieved from
ution of the trusts, and that a re-
manager might be appointed to carry
out the trusts under the orders of the Court.
To this suit the trustees and M. and L. were
made defendants. /.. was In England, but M.
and the trustees were subject to the jurisdiction.
' Held, by Phtar, ]., in the Court below, that the
High Court as a Court of Equity, with tbe
powers of a Court of Chancery, will, at the in-
ice of a cestui. gut-trust when necessary,
ipet an inactive trustee to do his duty, or
facilitate a trustee's doing his duty, by making
D.gmzed by G00gle
( 1439 )
DIGEST OF CASES.
BUTT FOB I.AND-r«FiW.
declarations of fact or law, which shall bind
parties properly brought before it for that pur-
pose, or by acting directly upon parlies before
it who have control and power over the subject
of the trust, and making them perform any
obligations with respect to it which they maybe
under toward the ctsiui-que- trust or trustee.
If, therefore, the substance of the case set up
in the plaint was established, it would be accor-
dant with the principles which govern the action
of the Court, that it should afford him a remedy
for the inactivity and weakness of the trustees
by making a declaration as to the validity of the
deed of trust, which would be binding on L. as
a party who had appeared before the Court in
the suit, and by appointing a receiver of the
rents and profits of the immoveable property,
the subject of the trust, and by directing a
sale thereof which should be binding on At. and
L., and would therefore pass a title which they
could not dispute; but that the suit being one
■' for land " within the meaning of CI. 13 of the
Letters Patent (1665), the Court had no juris
diction to try it.
Held, on appeal, that the object of the sui
being to compel the sale of the whole of the land
conveyed by the trust-deed, including £.'s share,
the trustees' title to which was disputed, the suit
was in substance a suit for land within the
meaning of CI. 11 of the Letters Patent, and
that the Court had no jurisdiction to try it. Tub
Delhi and London Bank e- Wordie. Garth,
C.J., and Pontifex, J I. L. Rep. 1 Cal.
846, 1876.
8. Jurisdiction — Utters Patent {Cal-
cutta), 1865, CI. 12— Application to file Avard—
Act VIII. of 1S59, j m — Revocation of Autho-
rity of Arbitrators.'] The plaintiff and defend-
ant entered into partnership for the purpose of
carrying on the cultivation and manufacture of
tea, on a tea estate at Darjeeling, of which they
were the owners in certain shares. The deed
was executed and registered in Calcutta, but
both parties resided out of the jurisdiction.
The deed contained provisions for a reference,
to arbitration in case of difference or dispute in
any matters relating to the partnership. Differ-
ences having arisen, arbitrators were appointed
in accordance with the clause in the deed. In
the course of the arbitration proceedings one of
the arbitrators received two telegrams purport-
ing to be sent by the plaintiff and defendant
to the arbitrators, the terms of which were,
SUIT FOB LAND-«»M.
Stay further proceedings - arrange matter
here." The arbitrators Subsequently madetbei
ward in Calcutta to the following effect : — ihu
he defendant's share in the partnership pro-
perty should stand charged with the payme^
certain sum found to be due by him to tit
plaintiff, and that the defendant should exec«»
mortgage of his share to the plaintiff as seci-
ity for such payment; that the partners^;,
should be dissolved on certain terms, and 1
the teagarden at Darjeeling should be sold is
Calcutta- In an application under f 327 of Aa
VIII. of 1859, to file the award ! —
Held, affirming the decision of the Court he-
low, that the High Court at Calcutta had jurisdic-
tion to file the award. Seetioti 327 gives jur-j-
diction to file an award to any Court in which
a suit in respect of the subject .matter oftbt
award might be instituted. A. suit in respect of
the subject-matter of this award would not bci
suit for land, but a suit, in which, by reason 0
the eiecuticn of the deed of partnership ;:
Calcutta, a part of the cause of action arosi
there ; such a suit could, with leave, have bees
instituted in the High Court; that Court, there-
fore, had jurisdiction to file the award :
Held, also, that under the circumstances tie
telegrams sent to the arbitrators did not amount
to a revocation of their authority. Kelufs,
Fraud. Garth, C.J., and Macphersen, J ...L L.
Bep. 9 Cal. 440, 1877.
SUIT FOB LAND SITUATED IN SOU".
THAI, PABOAN AS— Power of Higi
Court to sanction Trial of.
See Soatho.1 Farganai.
Kaliprosad v. Meheb Chamdbo,
1 L. Bep. 4 Cal. 232.
SUIT FOB MANAGEMENT OF A
RELIGIOUS ENDOWMENT— Advocate.
General — Ambiguous Description of Plaintiff
— fain Sect-Act XX. of 1863.1 The plain.
tiffs, describing themselves as the persons who
constituted the Calcutta Tairo Pantee Anungo
Punch Brethren, in whom, as they alleged, wjs
vested the management and control of the tern.
pies, endowments, and worship of the Degam-
berry sect of Jains, and who formed the com-
ittee for the management of the Jain charities
Calcutta, and in all other places in India, in-
luted a suit praying, inter alia, for lh* con-
uction of a will, and to have their rights »
exiled by Google
< 1441 )
DIGEST OF CASES.
( 1442 )
STTZT FOB MANOEMENT OF A RELI-
GIOUS ENDOWMENT— contd.
such Punch ascertained and declared, and to
have the property dedicated by (he will to reli-
gious purposes ascertained and secured.
Held, by Kennedy, J.— That if there were no
other objection to the suit, it would be difficult to
maintain it, with so uncertain and ambiguous
a description of the character in which the plain-
tiffs sued, and of the nature and constitution of
the body to which they belonged. But the pro-
perty not being delimiter, the plaintiffs therefore
were not in the position of skebails ; and on the
terms of the will the plaintiffs could not claim
property in the subject-matter of the suit, but
only a right of management, and a mere mana-
ger, without some special power, could not
institute a suit for property. The Hindu law
does confer such power in the case of a shebait,
but here the property, not being denmiler, was
not vested in any one, and the only claim was
to have a right of management, which the
plaintiffs did not allege to be vested in them
under the provisions of Act XX. of 1S63, and
therefore that they could not maintain the
present suit.
field also, that the plaintiffs, not having been
incorporated, could not sue in a corporate
character; but that Act XX. of 1863 applies to
religious endowments in the Presidency towns,
and to persons who are dt facta trustees, lie,,
and if there were any religious endowments
created by the will, the defendants (if any liability
attached on them) might be sued as trustees
under Act XX. of 1863, § 14, on the necessary
preliminary leave under § iS being obtained, or,
if the gifts could be treated not as religious but
charitable gifts, possibly the Advocate- General
could sue.
field, on appeal, that the right in which the
plaintiff sued was sufficiently shown ; that the
object of the suit was not to assert personal
rights of ownership in the plaintiffs, but to have
the trusts of the will, in which they were interest-
ed (not beneficially but as the representatives of
their sect), ascertained, and the performance of
those trusts secured- Nordid the practice of the
Court require that the Advocate-General should
be a party to such a suit.
Held also, that Act XX. of 1863 did not apply
to such a suit. Section 14 of that Act, though
general in its terms, does not interfere with the
procedure of the Supreme Court in referei
trusts concerning property, which coulc
under any circumstances, come under the direct
SUIT FOB MANOEMENT OF A RELI-
GIOUS ENDOWMENT— contd,
control of Government. Such a suit is not
brought under Act XX. of 1863, but under the
Ordinary Original Jurisdiction of the High
Court, inherited from the Supreme Court, and
conferred upon the Supreme Court by its Char-
ter—a jurisdiction similar in its general features
to that of the Lord Chancellor in England.
Ganes Sing v. Ramgopal Sing (5 Beng. L. Rep.,
AppK.55) dissented from. Panchcowrie Mull
■b. ChUhkoolAll. Garth, C.]., and tfar&by, J...
I. I.. Rep. 8 Cal. 563 ; 2 Cal.
Bep. 121, 1871.
SUIT AGAINST MUNICIPALITY- Sub-
stitution of President for Secretary as
Defendant— Limitation.
See Act XV. of 1873, 5 43.
Manni Kasaundhan b. Ckooke,
I. L. Bep. 3 All. 296.
Bombay Act VI. of 1 873, § 7— Act X. of
1876, § is-Jurisdiction.-] In a suit by or
against a Municipality, every individual Com.
missioner must be regarded as a party within
the meaning of § tS, Act X. of 1876; and, con-
sequently, such a suit cannot be entertained
by a Subordinate Judge or Court of Small
Causes, but can be entertained by the District
Judge alone, inasmuch as by § 7 of Bombay
Act VI. of 1873, such Municipabties consist of
of Commissioners therein mentioned,
horn ate officers of Government, and
:0 be Commissioners <•* officio. Thb
Ahmedabad Municipality e. Mahaiiad Ja-
Mehitl and Kemball, JJ..X L. Bep, 3
Bom. 116, 1878.
SUIT FOB POSSESSION— Decree— Appli-
cation for Assessment of Mesne Profits —
See Civil Procedure Code, Act
Vin. of 1859, % 197.
DlLDAK HOSSEIN V. MllJBBDUW.
nissa I. L. Bep. 4 Cal.
629.
- By Lessee, claiming under Lease by a
Lessor out of Possession at Date of Lease.
See Landlord and Tenant. 8.
LoKENATH GHOSE t>. JUGOBUN-
dhoo Roy L L. Bep. 1
Cal. 297.
- Limitation — Fraud.
See Limitation. 69.
CHUNDER NATK 0. TlHTHANANU.
I. L. Bep. 3 Cal. 604.
D.gmzed by G00gle
( 14« )
DIGEST OF CASES.
SUIT FOE FBOFITS— Power of Revenue
Courts in to award Interest.
See Act XVHX of 1873, § 93, CI. h.
Tota Ram v. Sher Singh ...I. L.
Rep. 1 All. 361.
Act XVIU. of 1873, §§ 7 and 14— £Wr«-
pnelary Tenant— S\i Land.] A mahal, of which
the plaintiff claimed a one-third share of the
profits for a certain year, belonged In equal
shares to the defendant, the lambardar, and S.
and R., his brothers, who held certain sir lands
in partnership. The plaintiff had acquired the
share of S. at an auction sale, S- thus becoming
an ex- proprietary tenant. The sir land was not
included in the rent-roll of the mahal, but was
admitted by the defendant to be assessable with
rent at a certain rate per bigka. The lower
Appellate Court ruled that the plaintiff was not
entitled to claim a share of the profits from the
sir land because it had not been assessed with
rent under Act XVIII. of 1873, J 14 : —
Held, that whatever might be the proper
course to be taken for the purpose of assessing
the sir land, or S.'s share of it, with rent, the
plaintiff was not debarred from claiming and
obtaining his fair share in the profits of the sir
holding because such course had not been taken.
Muhammad Ali v. Kalian Singh. Stuart,
C.J., and Pearson, J ...I. L. Hep. 1 All. 059,
1878.
SUIT FOB REDUCTION OF MAINTE-
NANCE OF WIDOW AWARDED
BY DEOBEE.
See Hindu Law— Maintenance of
Widow. 10.
Ruka Bai v. Gauda Bai...I. L.
Rep. 1 All. 594.
See Multiplicity of Suits. 2.
SlDLIMGAPA v. S[DAVA I. L.
Rep. S Bom. 634, 630.
SUIT BT REVERSIONER-For Declara-
tory Decree.
See Declaratory Decree. 7.
Jaoesri Kuar t>. Rah Nath...L
L. Rep. 1 All. 371.
Hindu Widow — to set aside Adoption by
Daughter-in-law.
See Right to Sue. 8.
J U MOON A DAS3YA 9. BamaSOONDE-
rai Dassva ... L. Bep. 3 X,
A. 73 ; I. L, Bep. 1 Cal.
SUIT BT REVERSIONER-™*/*.
During Lifetime of Widow in Possession
to restrain Waste, and for Declaration of
Title.
See Declaratory Decree. 3.
Kathama Natchiar t. Doia-
singaTever.-.Tj. Bep. 2 L
A. 169 ; 16 Bang. L. Bep.
83.
Hindu Lav— Alienation—Fraud.'] S. wjs
entitled, under the Mitakshara law, to succeed
On the death of St , tier mother, to the real
estate of N., her father. Certain persons dis-
puted S.'s right of succession, and claimed that
they were entitled to succeed to JV.'s estate on
Sf.'s death, and complained that Sf. was wasting
the estate. The differences between these per-
sons and M. and -V. were referred by them to
arbitration, and an award was made and filed
in Court, which, among other things, partitioned
the estate between S. and such persons. G-, who
claimed the right to succeed to the estate on S.'s
death, sued for the cancellation of the award, on
the ground that it was fraudulent, and affected
his reversionary interests : —
field, following Dorvar v. Boonda (I. L- Rep. 1
All. 274), that the suit was maintainable, though
G. was not the next reversioner. Gauki Dat*.
GlIR SAMAI. Stuart, C.J., and Pearson,] JL
L. Bep. 3 All. 41,1878.
SUIT BT A REVERSIONER TO SET
ASIDE ALIENATION BT A HIN.
DU WIDOW— TEBMS.
See Hindu Law -Will fi.
Mahomed Shuksool v. Shavpk-
rah I. Rep. S. I. A. 7.
SUIT BY VILLAGE PRIEST AGAINST
HIS TAJMAN.
See Bight to Sue. 13.
SUIT TO VINDICATE RIGHT TO A
MERE DIGNITY — Adava Palki.] The
plaintiff, alleging that the privilege of Aint
PalU, i.e., of being carried on ceremonial occa-
sions in a palanquin borne cross-ways, belonged
exclusively to him, as heir or successor of the
Swam is of Sringiri, in virtue of a grant from
the ruling power to a predecessor in office, and,
asserting that the defendant had infringed his
right by the assumption of the right in question,
prayed for an injunction to restrain the defend-
ant for the future from being carried in a
palanquin cross-ways —
D,„i„.db»Googlc
DIGEST OF CASES. ( 1446 )
BTJIT TO VINDICATE BIGHT TO A SULKHNAMAH, REGISTRATION OF.
See Registration. S.
Surju Prasa
I. L. Rep. 2 All. 481.
DIONITY-
Held.ana. remand from the Privy Couucil,that,
assuming the case staled by the plain-
true, the suit was not maintainable. ! _
kar Bhart! * Sidha Linoava Charaniai ..I. SUMMARY JURISDICTION.
I,. Rep. 3. Bom. 473. j See Criminal Procedure Code, Act
In Shankaka Marabasapa v. HanniaBhima. X- of 1873> 5 86'
X, It. Rep. 3 Bom. 470. Porsooram Borooah...I. L. Bep.
8 Cal. 117.
where the plaintiff sued to establish his right to
perform the duties of Ckalwuti, or bearer on SUMMARY ORDER— Act VIII. of 1859,5 H&
public occasions of the insignia or symbols of . —Order rejecting Claim to Property or-
the Lingayet caste at Bagalkot, in the district j dered tobe sold— Suit to establish Title—
of Beigaum, it appeared that though members ] Limitation.
of the caste might bestow voluntarily gratuities] &e Limitation. 53.
on the Chatviadi, there were no fees, as of right, I „ „ n
! _ „ ' . f KOYLASH CllUMDBR 0. PrEONATH.
appurtenant to the office. WMn!p*>Cj.laaid:- I. L Rep 4 Cal SIO
" It is therefore clear that an action by the J
plaintiff against an intruder upon his office, who SUMMARY PROCEDURE— Unlawful As-
had been paid such gratuities, if the action be sembly armed -nitk Deadly Weapons — Penal Code,
brought merely for monies received by the de- . (( 143, 144, Jurisdiction — Appeal.'] No Magis-
fendant to the use of the plaintiff, would not . trate is entitled to split up an offence into its
lie. Whether, under such circumstances, a component parts for the purpose of giving him-
plaintiff might recover nominal damages from self summary jurisdiction. If a charge of an
a defendant in a suit in the nature of an action ! offence not triable summarily is laid and sworn
on the case, and also obtain, under the equitable to, the Magistrate must proceed with the case
jurisdiction of Our Courts, substantial relief by accordingly, unless he is in a position at the
getting an injunction restraining the defendant , outset to show from the deposition of the com-
from further intruding, is a question of some 1 plainant that the circumstances of aggravation
nicety. It might perhaps be contended that an . are really mere exaggeration, and are not to be
office, unaccompanied by emoluments, fees, or believed.
salary, payable as of right, is a mere dignity, Therefore a Magistrate, when he has before
and therefore falls within the scope of Sri him a person charged with having been a mem.
Sunkur Bharthi Soamiv. Sidha Lingaya Charan- ber of an unlawful assembly, armed with a
tai (3 Moo. I. A. Jo8>." His Lordship, after deadly weapon, is not at liberty to disregard that
stating the circumstances of the remand of that : part of the charge which charges the prisoner
case by the Privy Council, and the decision of with having been armed with a deadly weapon,
the Sudder Court on remand, then proceeded:— , and so to give himself jurisdiction to try the
"Whether the office of Chalnadi at Bagalkot, ! case summarily, and then, by inflicting a sen-
dissociated as it has been found to be from any ] tenee of imprisonment not exceeding three
emoluments receivable as of right, is a mere j months, to deprive the prisoner of his appeal.
dignity, like the honour claimed by the Swami, Proceedings of a Deputy Magistrate who had
and, therefore, not a fit subject for an action adopted this course, quashed, as void, and a trial
against an intruder for his disturbance of the de novo ordered. Empress v. Abduol Karim,
party entitled, is a question on which we do not ' Ainslie and Sroughlon, JJ...L L. Rep. 4 Cal.
purpose to give an opinion," 1 IB, 1878.
See this Case under Diaturbance of SUMMARY SETTLEMENT WITH
Office. 1 ONE MEMBER OF AN UNDI.
VIDED HINDU FAMILY.
8UIX BY WIFE AGAINST HUSBAND. See Oudh Proclamation of 1868,
See Husband and Wife. j P"*- 8. I.
Harris ». Harris.. -I. L. Rep. 1 ' Hl-rfursimd v. Sheo Dv.il. ,.L.
Cal. 288. ' KeP' 3 I' A. 2159.
Diaxized by Google
( 1«7 )
DIGEST OF CASES.
(
)
StjMMARY SETTLEMENT WITH TA-
LTTKDAR DYING BKFOBE THE
LETTER OF THE 10th OCTOBER
1859 — Resumption of Taluk— Right of
Talultdar's Heirs.
See Act I. of 1869, 3.
Ranee of Chillaree ». Thb Go
VEttNMBKT of India. ..L.Kep.
4 I. A. 208.
■tncHABT suit on promissory
NOTE— Extending; Time for Defendant
to obtain Leave to appear and defend-
Set Civil Procedure Code, Act X
of 1877, 5 089.
Groom e, Wilson... I. L. Rep. 3
Cat. 039.
SUMMARY TRIAL— iff X. of 187J,
083— Record in Appealable Case— Substance of
Evidence.'] K. was tried in asummary way for the
offence of receiving stolen property, and con-
victed- On appeal, the Sessions Judge set aside
the conviction, on the ground that the Magis-
rate had failed to comply with the provisions
of I 238 of Act X. of 1871, and record a judg.
uient embodying the substance of the evidence
on which the conviction was based : —
Held, that although it was important that the
evidence should be so set forth in the judgment
as to enable the Appellate Court to perform i
functions in appeal, and though the prisone
right of appeal must not be defeated in con;
quence of an imperfect statement of the su
stance of the evidence, yet, on the other hand,
was unnecessary to cancel a conviction a
sentence not otherwise apparently exceptionable
by reason of such a defect.
If the Sessions Judge found it impossible to
dispose of the prisoner's appeal, because the
substance of the evidence For the prosecution
was not sufficiently embodied in the judgment of
the Magistrate, it would have been better to
have required that officer to repair the defect in
his judgment by recording a judgment in which
the substance of the evidence should be fully
embodied, and, if necessary, re-examining the
witnesses for that purpose, or to have ordered a
re-trial with that view. Empress* Kakan Singh.
J>wtn and OldjUld, JJ...I. L. Bep. 1AU.
080, 1S78.
SUMMON 8— Amendment of.
Set Small Cauae Court — Presiden-
cy Town. 3.
Mowla v, Bala.., I, L. Rep. S
Bom. 91.
SUMHOxISCABES-Orfence under Act XX.
of 1856, , 49-
Set Criminal Procedure! Cods, Act
X. of 1873, (333.
Emphiss v. Baidanath Singh
I. L. Rap. 3 Cal. S66.
See Practice— -Civil 4.
Ramkissrn Doss ■. Lucuv Ka-
ra in I. L. Rep. SCal
313.
SUPERINTENDENCE OP HIGH
COURT— Over District Courts mention-
ed in Registration Act VIII. of 1871.
See Review. 8.
Reasut Hossein v. Hadjee A»-
DooLAd L. Rep. 8 I. A.
331.
Error of Law or Fact by Lower Court
acting within its Jurisdiction no Ground
for Exercise of Powers of.
See Stat. 34 and 38 Vict., a 104,
$ IB. 8. 8.
Tej Ram o.Harsukh...I. L.Rep.
1 All. 101.
MadhubChundeho.Siiaw China
I. L. Rep. 3 Cal. 348.
Failure by Lower Court to perform, or
Entire Misconception of Duty, and Ab-
sence of Remedy by Appeal, is Ground
for Exercise of Powers of.
SrtBtat. 34 and 85 Vict., C. 104,
§ 10. 4. 6.
Mathra Parskad ... I. L. Sep.
1 AIL 396.
MauhcbChiinoerp.ShabCraiid.
I. L. Rep. 3 Cat 348.
Order by Magistrate under f'518, Act X.
of iSyi, not interfered with.
Set Stat. 34 and 38 Vict., O. 104,
5 IB. B.
Chunoer Nath Sen. ..I. I>. Rep.
' a cal. sea
Placing Party on Record, not the Repre-
sentative of Deceased Party to Suit, is
Ground for Exercise of Powers of.
See Stat. 34 and 36 Vict, a 104,
5 15. 7.
Pogosf. v. Caichick . L L. Rep.
3CaL708.
D.gmzed by GoOgle
( im )
DIGEST OF CASES.
( 1460 )
Power of— will not bo exercised where all
other Legal Remedies not Exhausted.
See Stat. 34 and 36 Vict., C. 104,
S 16. 8.
Empress v. Rajcoomar Singh ..I.
L, Rep. 3 Cal. 573, 677.
' Suit Cognizable by Small Cause Court —
no Question of Jurisdiction being involved.
See Stat. 24 and 36 Vict., C. 104,
i i6. i.
LukhykahtBosc I. L. Rep.
1 Cal. 180.
SUPERIOR TENURE, SETTING ASIDE
SALE OP— Effect of.
See Setting aside Sale of Superior
Tenure, Effect of.
Sreknarain Bagchse v. Smith...
I L. Rep. 4 Cal. 307.
SUPERSESSION 07 DEGREE.
See Money paid under Decree sub-
sequently Superseded,
Jogbsh Chunder v. Kali Churn.
I. L. Rep. 3 Oal. 30.
BUFBEME COURT OP BOMBAY-COH-
MON LAW-RULES OF-Applica.
tion by Attorney under Rule 14a.
See Attorney and Client. 1.
Aba Ishmail «. Aba Tkara...
I. L. Rep. 1 Bom. 363.
BUPREMTH COURT RULES (BOMBAY,
EftUITT) 371 AND 466— Certificate
of Commissioner for taking; Accounts.
See Accounts. 3.
Rustomji Burjorji 0. Kbssowji
Naik...L L. Bep. 3 Bom.
161.
BURBARAKAH.
See Manager.
See Act XI. of 1850, § 5,
BlINVAREE LALL V. MohAHEEF
Proshad...L. Bep. L A.
1UHBTY— For Costs — Executing Security
Bond before Decree— Proceedings against
—in Execution.
See Security Bond.
CllllTTBRDHAREB V. RAMBILA-
SMU...X. L. Bap. 3 Oal. 818.
: SURKTT— contd.
- Dischage of.
See Principal and Surety. 4.
Pogosb v. Bank or Bengal. ..I
L. Rep. 3 Cal. 174.
- Discharge of — Giving Time — Acceptance
of Interest in Advance.
See Principal and Surety. 3.
Protab Chunder o. Gour Chun-
DER.LL.Bep.4Cal.133.
- Execution against — GivingTime to Prin-
cipal— Interest.
See Principal and Surety- 8.
Ramanund ■.-. Chowdhrv Soon-
dgr Narain.1. L. Bep. 4.
0aL331.
Stay of Execution pending Appeal —
Sureties — Extent of Liability of.
See Civil Procedure Coda, Act VIH.
of 1860, § 339.
Shivlal v. Apaji.-.I. L. Rep. 3
Bom. 664.
SURETIES— For Execution of Decree— Ex-
tent and Duration of their Liability— Act VIII.
of 1859, , 338.] The appellants became sure-
ties, under f 333, Act VIII. of 1S59, that the
judgment debtor would "obey and fulfil all such
orders and decrees as should be given against
him in appeal," and in default of his doing so,
they bound themselves " to pay jointly and sever-
ally, at the order of the Court, all such sums as
the Court should, to the extent of Rs. 812-8-0,
adjudge."
Held, by a Full Bench, that the obligation of
e sureties was not confined to the first decree
of the Appellate Court, but extended to the final
decree which it passed, upon the case being;
remanded by the High Court in special appeal.
Apl'aji Bhivrav v. Shivlal Khubchand...I. L.
Bep. 3 Bom. 304, 1870, F. B'
S. C. under Letters Patent, Bombay
(1865}, CL 86.
"SUBPLUS."
See Will. 7.
DWARKAHATN V. BtlRRODA PeRSA-
no..,L L. Rep. 4 Cal. 448.
SURPLUS SALE-PROCEKDS- Rights of
Attaching Creditors.
See Sale in Execution of Decree. 14.
Mamik Singh v. Paras Ram... I.
L. Bep. 1 Alt 737.
D.gmzed by G00gle
( 1451 )
DIGEST OF CASES.
SURVIVORSHIP-Among Co-Widows.
See Hindu Law — Inheritance —
Widow. 2.
Ski Gajapathi Nilamamit. Sri
GAJAPATHI RaDHAMAM...L.
Rep. 4 I. A. 213; I. L
Rep. 2 Had. 290.
Daughter's Succession by— not Defeated by
becoming a Childless Widow.
See Hindu Law— Inheritance
Daughters. 2.
AuMIRTOLALL BoSE V. RAJONE
KANT MlTTER L. Rep, 2
I. A. 113.
Grant of Village to Two Hindu Brothers.
See Hindu Law— TJndivded Fami-
■ ly.l.
Radhabai if. Nanarav I. L.
Rep. 3 Bom. 101.
■ Joint liutwttlli.
See Mahompdan Law— Wakf.
Phatb Saheb b. Damoi>ar...I. L.
Rep. 3 Bom. 84.
SUSPENSION OF PLEADER — Special
Leave <o appeal against Order of.
See Practice— Privy Council. 6.
la «*««««■ <s/Quarrv. 1 L.
Rep. 2 All. 511.
TABTJTS— Suit to establish Right to carry
along Public Road.
Sec Bight to Sue. 1.
Saktuh. Ibrahim. ..L L. Rep. 2
Bom. 4S7.
TALABDA KOLI CAS1E
See Hindu Law— Adoption. 16.
Bkalav. Parbhu...I. L. Rep. 2
Bom. 67.
TALAK— Pronunciation of the Word— by Hus-
band not addressed to any Person, not
Divorce.
See Uahomedan Law— Divorce. 2.
FurzundHossein ». Janu Bibee.
I. L. Bep. 4 Cal. 688.
TALOOEDAR— Regislered— may be Trustee
—Right of Alienation of— Act I. or 1869.
See Act I. of 1869. 2. 0. 6. 7.
See Oudh Proclamation of 1868,
para. 8. 1.
HtJRPURSHAO *. SHEO DyAL...L.
Bep. 3.1, A. 2BS,
TALOOEDARI StTNHUD— Grant of-
and Summary Settlement with Member
of Undivided Hindu Family.
See Oudh Proclamation of 1858,
para. 8. 1.
HuRFURSHAD r. SHEO DVAL...L.
Rep. 3 I. A. 259.
TANES - ZEMINDAB'S LIABTXITT
FOR DAMAGE CAUBED -BY- Negligence
—Extraordinary Flood.] Where it is the duty
of the zemindar to maintain the tanks, on his
zemindary, which are a part of the national
system of irrigation, recognized by the laws of
India as essential to the welfare oF the inhabi-
tants, and the banks of a tank are washed away
by an extraordinary flood without negligence on
Held, that the zemindar is not liable for any
damages that may be occasioned by the over-
flow of the water. Fletcher v. Rylands (L.
Rep. 3 H. L. 330) distinguished. The Madras
Railway Co. o. The Zemindar of Carvateka-
garum L. Bep. 1 1. A. 364 ; 14 Beng.
L.B.209; W.R.. 22,
279, 1874.
TAR WAD PROPERTY — Right of Kama.
van to revoke Anandravan's Authority to
manage.
See Malabar Law. 3.
GOVINDAH V. K ANNA RAN. ..I. L.
Bep. 1 Mad. 301.
TAE — Construction of Act imposing.
SVv Madras Act III. of 1871.
LEMAN O. DAMODARAVA...L. L.
Rep. 1 Had. 158.
Illegally Levied — Suit to recover Money
Paid under.
See Madras Act in. of 1871.
Leman v. Damodarava I. L.
Rep. 1 Mad. 108.
TAXATION OF BILL OF COSTS —
Client's Right to— after refusing Offer to
Tax, and Delay for Seven Years.
See Attorney and Client. 3.
MONOHUR DOSS 1: ROMONAUTH
Law I. L. Rep. 3 OaL
473.
D,gltlzed by G00gle
( 14SS )
TENANCY — Determination of — Non-Pay-
ment of Rent.
See Limitation. 21.
Porgsh Narain Roy h. Kassi
Chunder Tauhspa*...!. L.
Bep. 4 Cal. 661
See Landlord and Tenant. 6, 8.
TENANCY AT WILL.
See Landlord and Tenant. S.
Prosunno Coomaree s. Sheikh
Rutton 1 L. Bep. 3 Cat.
696.
TENANCY FROM TEAK TO YEAB.
See Landlord and Tenant. 2.
Prosunno Coomaree », Sheikh
Rutton. ..I. L. Bep. 3 Cal.
TENANT.
See Madras Act VIII, of 1865, § 1.
ZlNULABDIN V, VlJIEN VlRAPA.
TREN...L L. Bep. 1 Had.
49.
Ex-Proprietary.
Set Act XVIII. Of 1873, § 9.
Bhagwanti v. Rudr ManTiwari.
I. L. Bep. 2 AIL 145-
Liability of — for Rent due by Former
See Landlord and Tenant. 6.
Rash Bekary v. Peaky Mohun...
I. L. Bep. 4 Cal. 346.
— — Occupancy.
See Act XVHT. of 18?3, § 9.
Bhagwanti v. Ruhr Man Tiwari,
I. L. Bep. 2 All. 115.
TENANT AT FIXED BATES.
See Act XVIH. of 1873, § 9.
Bhagwanti v. Rudr Man Tiwari.
L L. Bep. 2 All. 145.
TENANT AT WILL- -Erection of Build-
ings by — on Land Demised.
See Landlord and Tenant. 2,
Prosunno Coomaree o. Sheikh
Rutton..,!, L. Rep. 3 Cal.
DIGEST OF CASES.
( 1464 )
TENANT FROM YEAB TO YEAB.
See Rights of Miraadare,
Fakir Muhammad v. Tirumala
Chariak.,,1. L. Bep.l Had.
205.
Erection of Buildings by — on Lands
Demised.
See Landlord and Tenant, 2.
Prosunno Coomaree v. Sheikh
Rutton. ..I. L. Bep. 3 Cal.
696.
Reasonable Notice to Quit— Act X. of 1872,
§530.
See Ejectment. 1-
Ram Rotton v. Ketro Kally...
L L. Bep. 4. Cal. 339.
See Landlord and Tenant. 1.
Rajendronath v. Passider...L
L. Bep. 2 Cal. 140.
TENDEB— Of Patta, Necessary to Suit to
impel Acceptance of Patta.
See Madras Act VIIX of 1B65, § 9.
1.
SavudChando. Lakshma'na,..I,
L. Bep. 1 Had. 45.
— Cheque in Payment of Debt— Costs.]
The landlord of a house through his agent pre-
sented rent-bills to his lessee. The lessee gave
the agent a cheque in favour of her attorney for
t dem
ained a
e.pt
from him. The agent took the cheque to the
lessee's attorney, who cashed it and handed the
nt to the agent, who tendered it to the
landlord's attorney, who refused to accept it and
amount was thereupon returned to the
lessee's attorney,
1 suit for the rent (the defendant not having
paid the amount into Court) :—
Held, that although a person who is employed
receive money is not bound to receive a
cheque, and that, therefore, if the landlord's
agent had brought back the cheque to the land-
lord, the latter would have been justified in
fusing to receive it, yet that, the agent having
taken the cheque and obtained the money, the
tender was made under circumstances amount-
ing to payment.
field also, that although as a general rule the
amount of a tender not accepted ought to be
paid into Court in order to entitle the defendant
Diaxized by Google
DIGEST OF CASES.
( 1466 )
TENDER-
(o costs, yet that,
ltd.
\ the tender in this case
t, the defendant was en-
titled to have the suit dismissed with costs.
Boyle Chuhd Singh b. Maulird. Wilson, J.
J. L. Rep. 4 CaL 572, 1878.
S. C under Amendment of Iaraes
at the Hearing.
8. — Costs— Difference betmetn a Tttid,
on account of Separable Claims and one made i
Reference te Part of a Single Inseparable Claim-
Unconditional Tender, rehal is.] In a su
recover Rs. 1,323-15.6, the balance of the price
of goods sold, on which an account had been
come to between the parties, it appeared that
the defendant had, before suit, tendered a
of Rs. 1,043-5-0, stating in the letter of tender
that the sum so tendered was the only sum
At the trial the plaintiff obtained a decree for
the full amount claimed by him : —
Held, by Kennedy, J.— That the tender 1
tender of part of an entire debt, and therefore
bad, and that the plaintiff was entitled t<
Held, on appeal, confirming the decision of the
Court below, that the tender was made in such
a way, that the plaintiff could not accept the sui
jendered without giving up the remainder of hi
claim. An offer of that kind to pay a portion c
the debt in discharge of the whole debt is not .
legal tender of the part only. If the money had
been tendered unconditionally, it might have
been otherwise. Chunder Caunt Mookerjee e.
Jodoonath Khan. Garth. C. ]., and MarUy, ].
I. L. Bap. 3 Cal. 468 ; 1 Cal. Hep.
470, 1B7B.
TENDER OF BTAHP DUTY AMD
PENALTY.
See Stamp. 7.
ChAMPABATV V. BlEI JlDUN.,.1.
Xi. Rop. 4 Cal. 318.
TENURE - Liability of—for Rent due by
Former Tenant.
See Landlord and Tenant. 6.
Rash Beharyv. Peary Mohun...
Z. L. Sep. 4 CaL 346.
TERRITORIAL JURISDICTION OF
BRITISH COURT CEASES ON
VALID CESSION.
See Cession of Territory. 2,
Damodhakv. Ganesii...10 Bom.
H. 0. Rep. 87 ; I. L. Rep.
1 Bom. 867 ; L. Rep. 1
App. Oa. 838.
>Bro-ral
TERRITORIAL JUBZ8DICTIOBJ
HIGH SEAB ADJACENT TO THZ
COAST.
See Jurisdiction. 10.
Baban v. Nagu...Z. It. Bep. 3
Bom. IS.
THEFT- -Of Government Currency Note-
Title of Original Owner.
Set Government Correxicy Hoc*.
Empress v. Jogessijr Mocut ..I
L. Kep. 3 CaL 379.
— Removal of Property with Criminal Intent,
but with Owner's Consent.
See Abetment. 3.
Empress r. Troylukho Naih ...
L L. Bep. 4 CaL 300.
Penal Corfe, ,378.] Possession of wood by
a Forest Inspector, who isa servant of Govern-
ment, is possession of the Government itself :
and a dishonest removal of it without paymeB
of the necessary fees, from his possession, though
with his actual consent, constitutes theft within
the meaning of f 378 of the Penal Code, where
that consent was unauthorized or fraudulent.
Reg. t. Hanmanta. JfctVtMand Ketnbalt, ]}...
I. L. Bep. 1 Bom. 610, 1877.
THREATENING TO BRING FAXSB
CHARGE— Conviction of Criminal In.
timidation by — Security to keep Peace.
See Criminal Procedure Code, Act
X. of 1772, , 488.
Empress v. Raghuear I. L,
Bep. S All. 851.
TICKET— Right of Passenger by Railway to
demand a — at Intermediate Stations.
See Railway Company. 4.
Pkatab Daji v. The B. B. & C. 1
Ry. Co... I. L. Bep. 1 Bom
68,
Travelling in Railway Carriage without a.
See Railway Company. 4.
Pratau Daji v. The B. B.ICL
Ry. Co.. I. L. Bep. 1 Bom.
68,
B-BABBBD APPEAL— Admission of.
See Oitdh Talukdara' Belief Act
xxrv. or 1870, §10.
Ramjisdas v. Rajah B hag wan
Bax...L-Bep. 6I.A.187.
L. Admission of— by Single Judge tT-
parte— Aet/X.oftt-ji,H ami's.] ff««,bytlie
Full Bench, that the order admitting an kppctl
Diarized by Google
( 1457 )
DIGEST OF CASES.
( I4G8 )
TIWF.-IiARHED Al'PKAL— contd.
after time, made ex-parle by a single Judge of
the High Court sittingto receive applications for
the admission of appeals, under a rule of Court
made in pursuance of Stat. 14 and 25 Vict., C.
"04. § '3. and the Letters Patent of the High
Court at Allahabad, j 27, is liable to be impugn,
ed and set aside at the hearing of the appeal by
the Bench before whom it is brought on for
hearing on the ground that the reasons assigned
for admitting it are erroneous or inadequate.
Per Pearson, J.— A distinction must be made
between an order admitting an appeal after time,
after the other party to the case has had an
opportunity of urging any objections he may
have to make to its admission, and an order
admitting an appeal after time merely on the
strength of the explanation given or the evidence
adduced by the appellant himself of the cause
of his delay in preparing the appeal.
An order of the first kind made by a single
Judge cannot be impugned or set aside at the
hearing of the appeal by the Bench before whom
it comes to be heard. For although, under the
rule of practice of the High Court, an appeal
may be admitted by a single Judge, and after-
wards be heard by a Bench of which that Judge
TEHE-BARRED APPEAL— contd.
Held, that an error in the calculation of the
me allowed for appealing, was not, under the
rcumstances, a sufficient cause for the delay,
justify the admission of the appeal.
Zad
Kuls
I BlBt.
ind Oldfield, JJ 1 L.Rep. 1 I
TIME-BARRED DEBT — Alienation by
Hindu Widow of Husband's Estate to
pay.
See Hindu Law — Alienation by
Widow. 0.
Bkala b. Pakbhu.-.I. L. Hep. 3
Bom. 67, 71.
Good Consideration for Bond.
See Limitation. 42.
Ragoji p. Abdul... I. L. Hep. 1
Bom. S0O.
Good Consideration for Promissory Note.
See Limitation. 43. 43. 44.
Ckatur
may or may not 1
-, the Court which
admits the appeal is not one Court, and the
Court which hears the appeal another distinct
Court, but both Courts are one and the same High
Court; and the Bench cannot beheld to have any
power to review or interfere with the single
Judge's decision between the parties on
point, whether sufficient cause was shown by
the appellant for not presenting the appeal
within the prescribed time. Dubby Sihai «.
Ganesh Lal L X. Rep. 1 All.
34, 1B7B.
8. — Admission of — Sufficient Cause.']
A suit was dismissed by the Court of first in-
stance on the s6tb of July 1875. The plain-
tiff applied on that day fur a copy of the de-
cree, which was furnished on the 31st of July.
On the 31st of A-]-' one day after the time
allowed by law, she presented an appeal to the
lower Appellate Court, but assigned no reason
in her petition for her delay, but alleged ver-
bally that she had miscalculated the period
within which she was bound to appeal. The
lower Appellate Court simply recorded that
it should excuse the delay, and admitted the
...I.L. Rep. a
Bom. 230.
Kally Prosonno o. Hkera Lall.
I. I,. Rep.2 0al.468.
MllNGOL PRASHAD V. SHAMA
KamTo.,I. L. Rep. 4 Cal
70S.
Liability of Share of Next of Kin for-
Due to Estate of Intestate.
See Administration. 2,
Dhanjibiiai v. N.WAZBAI...I. L,
Rep. 2 Bom. 76.
Revival of.
See Acknowledgment of Debt.
Mathura Das 11. Baku Lal... I.
X,. Rep. 1 AIL 683.
See Hindu Law— Maintenance of
Widow. 6.
Krishna M.Boses. Okhilomihbe.
L L. Rep. 3 Cal. 331.
See Limitation. IS. 16. 17. 46. 46.
47.
Payment of— by Administrator General.]
The Administrator General holds, administers,
and is accountable for the estate under his charge,
not merely as an officer of the Court, but as an
ordinary executor or administrator. And as an
executor or administrator may pay a time-barred
' debt, so the Administrator General may pay such
debt, and is entitled to be allowed such pay.
D.gmzed by G00gle
DIGEST OF CASES.
TIME-BARBED DEBT— coutd. I TITLE— contd,
mentsinhisaccount. AdhinistratorGenbral | To Land-Power of Small Cause Coer,
, C.].,_and Initts, J. .
v. Hawkins. Mm
L. Rep. 1. Mad. 367, 1877.
&rDHANJIBHAlB.GV]RATr. Navazbai.
L I,, Rep. a Bom. 76.
Under Administration. 2.
TIME- HARKED DECREE— Admissibility
of— as Evidence.
Set Judgment Ex- parte. 3, and see
Res Judicata. 13.
BlRCHUNDER IT, HllRRtSH CHUN-
DER...I.L.Rep.SCal.SB3.
TIKE-BARRED DECREE, REVIVAL
or.
See Limitation. 43. 44.
Munool Prashad v. Shawa Kan-
To...I.L.Rep. 4 Cal. 708.
Kallv Prosuwno v. Hsera LaLL.
I. L. Rep. 3 Cal. 468.
And set KUtbaadi.
liEtuA Lalli-. Dhunput Singh..
I_L.ltep.4Cal.5UO.
TIME. OF THE ESSENCE OP THE
CONTRACT.
See Contract. 9.
SOOLTAN CHAND V. SCHILLRR ..
I. L. Rep. 4 Cal. 363.
ii TTBVAI" (RENT)— Sale for Arrears-
Bight of Official Assignee.
See Insolvency. 8.
Chinna S. Mudauh-Kandasvami
Reudi ..I.L.Rep.lMad.69.
TITLE— Decision of Question of— in Applica
tion under * 95. Act XVIII. of 1873, by
Revenue Court— SubsequeiT "
See Rea Judicata. 16.
Shimbku Narain Singh v. Bach-
cha.,.L L. Rep- 3 All. 200.
■ Evidence of.
See Limitation. 7.
Mohima Chunder «. Hurrc
Uu.,1 L. Rap. 3 Cal. 763
Incidental Determination of— in Suit for
Rent Cognizable by Small Cause Court—
Subsequent Suit to try Title.
SfcRe» Judicata. 8
Presidency Town, to determir
Ik,
f Kiia:
.. Rah
T BlBI
1. L. Hep, 2 Jill. 07.
See Small Cause Court — Frecida
Town. 3. 8.
Nowla t. Bala X. Z>. Rep. S
WALJI V. JU0OANATH...rhid.84.
Question of — cannot be judicially deter-
mined in Application under Act XXVII.
of i860.
See Certificate to collect Debta. 3.
Koonj Behary ST. Gocool Chl-t-
DSR...I. L. Rep. 8 Cal. 616.
} nest ion of — incidentally determined in
Suit Cognizable by Small Cause Court.
See Appeal-Civil. 33.
Mohesh Mahto «. Shbik Piru...
LL Rep. 3 Cal. 470
TITLE-DEEDS- -SUIT TO RECOVER-
Jurisdiction— Letters Patent {Calcutta), f II.]
o recover title deeds, though it may in volte
ion of title, is not a suit to obtain possession
of land.ortodeal in anyway with the land itself,
leaning of ( II of the Charter
DOSS 0. BWJNATH DOSS. Garth,
C.J., and Markby, J....I. L. Sep. 4 Cal. 339,
1878.
TITLE BY ESTOPPEL.
See Sale in Execution of Decree. 19.
Alukhonee c. Bahee Madhvb ..
I. L. Rep. 4 Cal. 077.
TITLE OF ORIGINAL OWNER 07
STOLEN CURRENCY NOTE.
See Government Currency Note.
Empress r. Jogessuk Mocki ..L
L. Rep. 3 Cal. 879.
TITLE TO SOIL OF ROAD— PritmU Oct*.
pation- Road.'] "It does not very clearly
appear from the evidence to whom the land
called the blind lane belongs. The plaintiff has
made an attempt to claim one-half of it as hi?
j own, on the ground that as it was a road lying
between his house and his neighbour's, the pre-
sumption of law was that he was entitled lo the
half of it usque ad medium jBiim of the space
between the two houses. We think, however,
that there is nothing in the point.
Digitized byGOO^Ie
DIGEST OF CASES.
TITLE TO SOIL OF ROAD—cW<*.
"The presumption on which the plaintiff
founds his claim is only applicable to a highway,
and not to a private occupation road."
Per Garth, C.J., in Shau Churn Auddv b.
Tarinrv Churn Bannerjeb ...I. L.Bep. lOal.
423, 138, 1878.
S. C. under Eassinent, 1.
See Ownership of Bite of Head.
TOLLS, FARMING OF.
See Madras Act III. of 1871. 3.
Goodrich v. Venkanna......,I. L.
Rep. 3 Mad. 105.
TOBA QARAS HAS.
See Pension* Act XXIII. of 1871.
a.
pARBHUDAS V. MOTIRAM. J. L.
Rep. 1 Bom. 303.
Limitation Act XIV. of lSsg,$i, CI. izand
id — Immoveable Property.] Tora Garas, though
originally payments exacted by the Garassias
from the village communities in certain terri-
tories in Western India by .violence and wrong,
and in the nature of black mail had, when those
territories fell under British rule, acquired by
long usage a guosf-legal character as customary
annual payments ; and as such they were recog.
nized by the British Government, which took
upon itself the payment of such of them as were
previously payable by villages paying revenue,
and left the liability to pay such of them as were
payable by inam villages to (all on the inamdar.
Tora garas hats of the former description con-
stitute a recognized species of property capable
of alienation, and of seizure and sale under an
The application within proper limits of the
rule laid down in Balvantrao v. Purshotam
Sidhesvar (9 Bom. H. C. Rep. 99)— that inas-
much as the term " immoveable property" is not
denned by Act XIV- of 1859, it must, when the
question concerns the rights of Hindus, be taken
to include whatever the Hindu law classes as
immoveable, (hough not such in the ordinary
acceptation of the term — is unobjectionable.
The question must be, in every case, whether
the subject of the Suit is in the nature of im-
moveable property, or of an interest in immove-
able property ; and if its nature and quality can
only be determined by Hindu law and usage,
the Hindu law may properly be invoked for
that purpose.
■ 94
TOBA OABAS HA1-«»W,
The question whether a tora garas hak is an
interest in immoveable property within the
meaning of Act XIV. of 1859 " one which
Ought not to be determined by Hindu law.
The hats, as they now exist, may pass to, and
be held by Mahomedans, Parsees, and Chris-
tians; and the applicability of particular sec-
tions of Act XIV. of 1 859, a general Statute of
Limitations, must be determined by the nature
of the thing sued for, and not by the status,
race, character, or religion of the parties to the
The term "immoveable property" in Act
XIV. of 1859 is not identical with "lands or
houses"; it comprehends all that would be real
property according to English law, and possibly
something more.
An hereditary right to foda garas payable by
an inamdar out of the rents of a village possess-
es the qualities of immobility and of indefinite
duration, in a degree which, if the question
depended on English law, would entitle it to the
character of a freehold interest in, or issuing
out of, real property ; and on the general
principles of construction applicable to an Indian
statute, must be held to be an "interest in
immoveable property" within the meaning of
Act XIV. of 1859, and a claim for arrears of it
for upwards of six years is not barred by CI. 16
of { 1 of that Act.
The question whether the arrears for more
than six years next preceding the institution of
the suit could be recovered was not decided, the
suit being remanded for trial on the merits.
Maha Rasa FATTEFisANGjr Jaswatsangji v.
Desac Kalianrai Hekoohutra[]i...L. Rep.
II. A. 34,1873; 10 Bom. H. C. Rep. 381 ;
13 Bang. I,. B. 264 ; 31 W. B. 178.
TRADE FIXTURES Sale of— in Exe-
cution of Decree of Small Cause Court.
See Fixtures.
Miller v. Bkindabun.,.1. L Bep.
4 Cal. 948.
TRADE-MAltK— Injunction to restrain Use
of Trade Marts- Combination of Figures.'] The
plaintiffs from 1872 imported and sold an article
described as 7J lbs. grey shirtings, and marked
asfollows;— In the centre of each piece of
cloth a stamp in blue colour of a turtle in a
star, with the words " Trade-Mark ;" underneath
liar form, was the name " Fleming'
D,gltlzed by G00gle
DIGEST OF CASES.
TRADE MAEK-«««.
Galbraith. & Co., Manchester," and under this
the number 39 within a star, and at the
bottom of each piece the number 2008. In ■ 877,
the plaintiffs discovered that the defendants
were importing from the same manufacturers,
and selling cloth of a similar quality marked as
follows 1 — A stamp in blue colour of a rose in a
square ; underneath, the words " Ralli and Mav-
rojani" arranged in a semicircular form, and
under that the number 39 in a star, and at the
bottom the number 2O0S On the facts of the
case, Macpherstm, J., granted an info
tion to restrain the defendants from so marking
their cloth, on the ground that it was a coloui
able imitation, of the plaintiffs' mark, and calci
lated to mislead the public ; and on appe;
Garth, C.J., and Markby, ]., upheld that decisio
so far as to continue the injunction.
Held, per Garth. C.J — If the defendants'
combination were so different from the plaintiffs'
that the public could not reasonably be deceived
by the use of it, or if the number 2008 was
merely a manufacturer's number, or was used
generally by the trade to designate a particular
kind or quality of cloth, the defendants would
have as much right 10 use either the combination
or the number a* the plaintiffs. But if the
object of the defendants in using the number
and imitating the plaintiff--' combination was,
or if the natural consequent i- of their doing so
would be, to induce the public to believe that
the goods which they were selling were imported
by, or came from, the plaintiffs' house, then, in
point of law, the defendants would not be justi-
fied in thus deceiving the public.
Under the circumstances, the use by the
defendants of their marks would be calculated
to deceive the public into the belief that the
goods which they were buying were goods im-
ported and sold by the plaintiffs.
Per Markby, J.— When a trader specially
selects and appropriates to himself, for the
purpose of distinguishing his goods, a particular
device, that device becomes his trade-mark
proper, and no one else is allowed to use it.
But if, without any such special selection and
appropriation, the goods of the trader do in fact
happen to bear some particular mark, and this
mark has come to be associated by the public
with the trader's name, so that all goods bearing
that mark are supposed to come from him, then
also the law will not allow any person to use -
TEA1)K-MAKK-™W.
a mark of this latter description, any more than
it will allow him to use a rival trader's trade-
mark proper, because in either case there is
made, or there is assumed to be made, a re-
presentation to the public which is false, rii.,
that the goods which are the goods of one
trader arc the goods of another. But this dis-
1 betw,
u the
be shown that a trader has infringed a rival tra-
der's trade-mark proper — 1". *., the mark which
another trader has specially selected and appro-
priated for the purpose of distinguishing hi]
goods— the Court will, without further evidence,
at once interfere, taking it for granted that such
B proceeding is calculated to deceive the public;
whereas if the mark be one which has not been
specially selected and appropriated by the trader
for this purpose, evidence must be given to show
that the mark was so understood by the public
as to make it clear that the proceeding had
either deceived, or was at least calculated to
deceive, the public. The figures "2008" were
not part of the plaintiff's trade-mark proper; nor
on the evidence were they so associated with
the plaintiff's name as to indicate, in the under-
standing of the public, that goods of the descrip-
tion in question hearing that number came from
their firm as importers ; on the evidence it wis
merely a quality mark, and therefore not calcu-
lated to mislead the public into the belief that
they were purchasing the plaintiff's goods while
fact they were purchasing those imported by
e defendants.
Semble— That there may bea right to an exela-
re use of a trade-mark by traders who are im-
porters only. Rm.i.1 v. Fleming ..I. L. Bep.8
Cal. 417 ; 3 CaL Bep. 03, 1878.
TBADESMAN'S ACCOUNT.
See Small Cause Court— Presidency
Town. 4.
CASSUH V. LlLLADUk...L Li B*P-
2 Bom. 670.
TBANSFEB OF ASSETS TO NEW
COMPANY— Right of Creditors and
Dissenting Shareholders of Transferring
Company.
See Company — Winding up. 1-
ln re The Fleming Spinning *W>
Weaving Co., Limited. . I. L.
Hep. 8 Bom. 366.
Diaxized by Google
( 1*6 )
DIGEST OF CASES.
( 1*8 )
TRANSFER OF CASE.
See Criminal Procedure Code, Act
X. of 1873, §64.
Reg. v Zuhikuddin.-.I. L. Bop.
1 CaL 219.
TRANSFER OF CASE TO THE HIGH
COURT.
See the Cases collected under High
Court Criminal Procedure,
Act X. of 1876, § 147.
TRANSFER OF CASE BY JUDICIAL
COMMISSIONER FROM SESSION
TO HIB OWN COURT— Appeal from
Sentence to Special Court at Rangoon.
See Jurisdiction. 17.
Empress d. Tsit Ooe ..L L. Rep.
4 Cat. 667.
TRANSFER OF DECREE FOR EXECU-
TION— Applicat ion for— is Application
to keep Decree in Force.
Sea Execution of Decree. 18.
Collins* Mavu Bakhsh I.
I.. Rep. 2 All. 284.
Powers of Court to which there has been a.
Set Execution of Decree. IS. 17.
SlIlD N'AEAH it. BepIN BeHARY...
I. L. Rep. S Cal. 612.
KaOIR Baksh r. Ij.ahi BaKsh...
I. L. Rep. 2 Alt. 283.
TRANSFER OF JURISDICTION.
Bee the Cases under Ceauion of Terri-
tory and Legislative Power
of the Governor- General of
India in Council.
TRANSFER OF LAND CHARGED
WITH THE PAYMENT OF AN
ALLOWANCE FOR DOWER.
Set Covenant running with the
Land.
Abadi Begum e. Asa Ram... I. L.
Rep. 3 AH. 163.
TRANSFER OF MAGISTRATE.
See Criminal Procedure Code, Act
X. of 1872, § 50.
TRANSFER OF A PORTION OF OCCU-
PANCY HOLDING- The existence of a cus-
in a particular district by which rights of
occupancy in such district are transferable, will
justify the holder of such a right of oecu-
pancy in subdividing his tenure, and transfer-
ring different parts of it to different persons -,
in case of such transfer, the zemindar is
entitled to treat the transferees as trespassers,
m d eject them. Tirthancnd Thakoorsf. Mut-
ty Lall Misser. Garth, C.J., and McDonnell,
J I. L. Rep. 3 Cal. 774, 1878.
TRANSFER OF PROCEEDINGS IN
EXECUTION BY DISTRICT
JUDGE FROM SUBORDINATE
COURT, TO HIS OWN.
See Civil Procedure Code, Act
VIII. of 1889, ij 6.
Gava Parshad t. Bhup Singh...
L L. Rep. 1 All. 180.
TRANSFER OF RIGHT OF OCCU-
PANCY. .
See Right of Occupancy. 2. 4.
DWARKA- NAiII *. HURRISH CHUK-
der I. L. Rep. 4 Car.
Ablaki
It. UDlTN.RAt I,
L. Rep 1 All. 363.
Ste Act XVIII. of 1878, § 9. 1.
Umrao Bp.gom d. Land Mort-
gaqe Bank...L L. Rep. 1
All. 647.
TRANSFER OF SHARES-Right to re.
fuse Registration of.
See Presidency Banks Act XI. of
1878, §§ 17, 21.
MOTHOORMOHUK D. BANK OJ BEN-
oac I. I* Rep. 3
Cal. 392.
TRANSFER OF SUIT— Act V11I. of 1859,
13-
> Sue i
BosoOAM I. L.Rop,
2 Cal. 117.
See Petition for Leave t
Forma Pauperis.
Skinner t>. Ohde .1. Rep. 6 I.
A. 126 ; I. L. Rep. 2 All.
Oil.
TRANSPORTATIONFOR LIFE— Offence
punishable with— or Imprisonment for
Term of Years.
See Penal Code, § 69.
Reg. v- Naiaoa.I. L Rep. 1 All.
43.
D.gmzed by G00gle
( 1«T )
DIGEST OF CASES.
TRAVELLING BY RAILWAY WITH-
OUT A TICKET.
See Railway Company. 4.
Pratab Daji o. The B. B. & C. I.
Rv. Co-.L L. Rep. 1 Bom.
68.
TREES— Planting— and Sinking Wells, con-
trary to Condition in Lease.
See Forfeiture. 1.
Ablakh Rai i. Saum Ahmed
Khan I. L. Rep. 2 AIL
437.
See Railway Company. 4.
Pratab Daji n. The B. B. & C. I
Rv. Co...L L. Rep. 1 Bom. 53.
TREBPASBER— Mesne Profits— Liability of
Trespasser — Allowances.
Sec Mesne Profits. 3.
Altaf Ali it. Lalji Mal .1. L.
Rep. 1 AIL 518.
TRIAL WITH THE AID OF ASSES-
SORS—Omitting to take or record
Opinion of Assessors on Acquittal of
Accused uo Ground for Revision.
See Assessors.
Naraik DA3...L L Sep. 1. AH.
610.
TRIAL BY JURY— Acquittal— Appeal.
Seethe Index headings Acquittal and
Appeal— Orimi nal .
— —Acquittal by Majority— Dissent of Judge —
Reference— Power of High Court.
See Criminal Procedure Code, Act
X. of 1872, §268.1.2.3.4.
Imp*, s. Khandehav L L. Sep,
1 Bom. 10.
Imfx. e Bhawani Ibid, 620.
Empress jr. Hara1...I. L. Rep.
3 Cal. 623.
Empress tr. Sahae Rail... I. L,
Rep. 3 Cal. 623.
— — Constitution of Jury.
5m High Court Criminal Proce-
dure, Act X. of 1876, § 33.
Reg. v. Lalubhai...I. L. Rep. 1
Bom. 032.
Rio «. Vithaldas... Ibid. 469.
TBUL BY JURY- -t osrrf.
Offence Triable by Assessor! — Appeal.]
The trial by a jury of an offence triable with
sors is not invalid on that ground, but the
accused, who would have been entitled to an
.ppeal on the facts if the case had been tried
vith assessors, is not debarred from that right
merely because the trial by jury is not invalid.
Hitter, J., did not express any opinion as to
whether an appeal on the facts lay in such a case.
Empress o. Mohim Chunder Rai. Milter and
Maclean, JJ L L. Sep. 3 Cal 765, 1878.
— Action in— by Wife against Hus-
See Husband and Wife.
Harris v. Hakris.,.1 L Sep. 1
Cal. BBS.
— Goods pledged by Servant.
See Contract. 15.
BlDDOMOYI DABIE V. StTTARAH...
I. L. Sep. 4 CaL 407.
TRUE AND JUST ACCOUNTS."
See Blaster and Servant-. 1 .
MacGh.iivray ». Jokai Assam
Tea Co... I. L. Sep. 2 CaL
88.
TRUST,
Breach of.
Set the Cases under Breach of Trust
—Criminal Breach of Trust.
Constructive.
See Insolvency. 3.
See Limitation. 36. 27. 88. 38a. 81.
— — In Favour of Idol.
See the Cases under Dewuttur.
See Hindu Law— Partition. 7.
Ram Coomap. «■ Jouendbr Nath.
I. L. Rep. 4 CaL fi6.
Implied.
See Limitation. «fi. 27.38.88a. 61.
And see Act I. of I860. 2. 9. 8. 7.
Precatory— Will.
See WW. Q.
Ravnor ». The Mussoorie Baks.
I. L. Sep. 2 AIL 60.
— — Resulting.
See Limitation. 88.
Kherodeuohrv t. DooRGAMomrr.
I. L. Rep, 4 CaL 465.
mortized by Google
{ 1*» )
DIGEST OF CASES.
TXtTTBT— con td.
Sanad by Government after Otidh Proclama-
tion of 1858, Title by, may be affected
by.
Set Act I. of 1809. 3. 5. 6. 7.
Widow of Shunker Sahai v.
Rajah Kashi FensiiAo ..I,.
Rep. 4 I. A. 198.
Thakoor Hardeo Bux «. Tha-
koor Jawahir Singh ...It.
Rep. 4 I. A. 17S ; I. L.
Hep. 3 CaL 522; L, Hep.
ei A. 161.
Thakoor Shere Bahadur v.
Thakurani Dariao Kuar...
I. L. Sep. 8 Cal. 640.
■ " For Specific purpose."
See limitation. 2fl. 37. 38. 38a. 61.
1. Wajib-ul.Arz, at Record of Rights—
Entry in — Purchaser bona fide and for Value
without Notice— Limitation.'] In 1840 the pur-
chasers and recorded proprietors of afour-iirajai
share of a certain village caused a statement to
be recorded in the village record of rights, lo the
effect that B. claimed to be the proprietor of a
moiety of such share, and that they were will-
ing to admit his right whenever he paid them a
moiety of the sum they had paid in respect of
arrears of revenue due on such share. In 1843 M.
purchased the share and became- its recorded
proprietor. In 1877 R-, the son of B., sued M.'s
representative for possession of a moiety of
such share, alleging with reference to the state-
ment recorded in the record of rights, that
such moiety vested in Jf.'s assignors in trust to
surrender it to B., or his heirs, on payment of a
moiety of the sum they had paid on account of
arrears of revenue, and paying such sum into
Court:—
Held, that the statement in the record of right
did not amount to a trust such as the plaintiff
set up, and that, even assuming that the
alleged trust existed, yet the suit was barred by
limitation, M. having purchased without notice
of the trust and for valuable consideration. Ka-
uai. Singh v. Batul Fatima. Spankie and Old-
field,}) I. L. Rep. 3 All. 460, 1878.
SmPiaret Lalt. Salioa... I- L.Rep.
3 All. 384.
Under Limitation. 37.
3. Wajib-ul-Arz, or Record of Rights—
Entry in — Limitation.) The plaintiffs sued for
possession of land and a house in a village, alleg-
ing that their ancestors had left the village thirty
TRU8T- contd.
years before, entrusting the property in suit ta
the defendants' father, to be held by him on
condition that, whenever they or their children
returned to the village, the property should be
restored to them ; and that the defendants'
father, and, after him, the defendants themselves,
had accepted the trust, and admitted and caused
it to be recorded in the village administration
paper. The defendants denied the trust, and
pleaded adverse possession for forty years. The
clause of the village administration paper on
which the plaintiffs relied, after mentioning the
name of the plaintiffs' ancestors as "absent
shareholders," proceeded: — "Whenever the
absent shareholder, or his descendants, returns,
and settles in the village, he shall immediately
be put in possession of his property without
taking any account of profit and loss ; the
person occupying the property shall not object to
relinquish his occupation of the said property ; if
from any cause the share of the present occupier
is transferred, the property of the absent share,
holder shall be held by the brother of the present
shareholder, or by one belonging to the same
stock ; whenever the absent shareholder, or his
descendants, returns and settles in the village,
effect will be given to the above condition."
The lower Appellate Court found that there
was no satisfactory evidence of the trust alleged
by the plaintiffs, and that the village adminis-
jn paper was not proof of such trust, and
that the defendants had established a title by
idverse possession. On second appeal : —
Held, affirming that decision, that tha Judge
lad not acted erroneously in refusing to accept
the entry in the village administration paper as
conclusive evidence of the trust. A village
administration paper does not necessarily con-
stitute a valid trust. It may be evidence of a
trust, but in the present case, as regards the
share in dispute, the persons entered as " absent
shareholders" were neither present in thevillage
when the settlement was in progress, nor were
they assenting parties to the arrangement re-
corded in the administration paper- There was
no declaration of any pre-existing trust as be-
tween the absentees and the occupants of their
shares. Accepting, therefore, the finding of the
lower Appellate Court on the matter of fact that
there was no evidence to establish the trust,
their Lordships dismissed the appeal. Harbhaj
e. Githani. Stuart, C.J., and Spankie, J. ..I. L.
Rep. 9 All. 483, 1870,
Digitized byGOO^Ie
DIGEST OF CASES.
( H72 )
TRUST DEED FOli. BENEFIT OF CRE-
DITORS.
See Principal and Surety. 4.
Pogose «. Bank of Bengal
I. L. Rep. 8 Cal. 174.
TRUST DEES WITH POWER OF SALE
OF LAND IN MOFUSSIL— Suil by
Creditor to have Trust carried out.
Set Suit for Land. 2.
Delhi and London Bamk v.
Wordie.,.1. L. Rep. 1 Cal.
M9.
TRUST PROPERTY — Does not vest in
Official Assignee of Insolvent Trustee.
See Insolvency. 7.
Vakdala Charri ... I. L. Rep. 2
Had. 16.
Sale of -by Trustee.
See Breach of Trust.
Masicklal*. Manchersha.-I. L.
Rep. 1 Bom. 269.
See Alienation of Right of Manage-
ment of a Pagoda.
Rajah VurMah Vaua v. Ravi
Vl'KMAH MUTHA...L. llflp. 4
LA. 76.
TRUSTEE— Co n struct i ve .
See Insolvency . 3.
See Limitation 26. 27. 38. 38a. 61.
Executor — Undisposed- of Residue.
See Executor— Estate O*. 2.
LaLUBHAI V- MaNKUVERBAL...I. J,
Rap. 2 Bom. 88S.
i Purchase by a.
See Purchase by Trustee.
Dhonenoer Chunder II. MlTTBY
LALL...L.Rep.2. I. A. 18.
Sale by — of Trust Property.
See Breach of Trust.
MANICKLAL I'. MANCHER3HA...I.
L, Rep. 1 Bom. 268.
See Alienation of Right of Manage-
merit of a Pagoda.
Rajah Vurmah Valia v. Ravi
Vurmah Mutha...L Rep. 4
I. A. 76.
TRUSTEE AND CESTUI- QU2-TBV U ST.
Sec Suit for Land. 2.
Delhi and Lokdos Bam >
Wordie.,.1. L. Rep. 1 Cal
248.
TRUSTEE AND MANAGER OF HINDU
TEMPLE— Criminal Breach of Trot
by.'
See Criminal Breach of Trust.
Anon. ...L L. Rep. 1 Mad. 65.
TRUSTEESHIP— SALE OF.
See Alienation of the Right of Ma-
nagement of a Pagoda.
Rajah Vurma Vaua -b. Ravi Vcl-
ha Mutha...L. Rep. Ill
7ft
TULLUBI BROHUTTUR TENURE.
See Enhancement of Rent. 6.
Nil Money Singh r. Chukoei-
kant I. L. Rep. 3 Cal
125.
ULTRA VIRES.
5«ActVLoflB74, §5.
Fbda HosstiN...L L. Rep. 1 Cal.
48L
See Injunction. 3.
Shepherd ». Trustees op Port
or Bombay I. L. Rep. 1
Bom. 132.
See Power of Directors to bind
Company by Bill of Ex-
change.
In the matter of The New Flex-
ing S. & W. Co., Limited L
L. Rep. 3 Bom. 439.
Rules of Bombay Government of 1st Feb-
ruary i860.
See Bombay Act L of 1365, g 36.
Collector of Thaha e. Dad*,
ehai Bomanji ..I. L. Rep. 1
Bom. 392.
UNASCERTAINED CLASS-GIFT TO.
See Hindu Law— Will. 4. 6.
Khekodemonev v. Doorgaho-
nev...L L. Rep.4Cnl.i6S.
Soudamonev r. ]ooesh Chunder.
I. L. Rep. 2 CaL 282.
D.gmzed by G00gle
( 1478 )
DIGEST OF CASES.
{ UH )
UNAUTHOBIZED ENTBY AND AB
BEST— Gambling— Direct Evidence of
House being Gaming-House — Bengal
Act II. of 1867, «j s and 6.
Set Gambling.
Nazir Khan a. Proladh Dutta.
L L. Bep. 4 Cat. 659.
UNAUTHORIZED SALE BY GUAB-
DIAN— Purchase-Money applied in Pay.
ment of Mortgage Debt — Subseque
Purchaser at Auction Sale in Executioi
See Lien. 1.
Kuvarji v. Moti Haridas .1. L.
Bep. 3 Bom. 334.
UNCEBTAINTY.
See WilL 7.
DWARKANATH V. BuBROM PER-
saud L L. Bep. 4 Cal.
443.
Charitable Bequest.
See Hindu Law— Will. 3.
SlIRBO MuMOOLA V. MoHENDRO
Nath £ L. Bep. 4 Cal.
BOS.
TJNCEBTIFICATED OUABDIAN —
See Alienation by Guardian. 3.
Ram Chunders. Brojonatk...
I. L. Bep. 4 Cal. 83
UNOHASTITY.
Of Hindu Mother, Disqualifies from In.
heriting to Son.
See Hindu Law — Disqualification
to Inherit 6.
Rahnath 1. Durga Sundarj...!.
L. Bep. 4 Cal. (550.
- Of Hindu Widow After Inheritance Vested
—Works no Forfeiture.
See Hindu Law Disqualification.
to Inherit. 4.
Bhavani v. Maktab ..I. L. Bep.
3 AIL 171.
See Hindu Law — Inheritance —
Widow. 1.
Nehalo it. Kishen.-.L L. Bep.
3 All. ISO.
See Hindu Law — maintenance
of Widow. 13.
HONAHA V. TlMANBHAT.,.1. L.
Bep. 1 Bom. F359.
- Of Hindu Woman, does not Disqualify from
Inheriting, or Keeping Inherited Stri-
dkan.
See Hindu Law— Disqualification
to Inherit. 3.
MlISST. GUNGA „. GHAS1TA...L L.
Bep. 1 All. 46.
Unfounded Charge of— against Wife not,
fierse. Cruelty.
SreBestitution of Conjugal Bights.
Hasan Ali if Meiidi Hussain...
I. L. Bep. 1 All. CSS.
See Mortgage. 30. 31.
Abhasee Begum v, Moharanee
RAJR00P...I. L. Bep. 4 CaL
S3.
Debi Dutt Sahoo v. Suboqdra
Bibee...L L. Bep. 3 CaL
283.
See Review, 10,
Makdo Dash. RuRhman Sewak
Sinoh ..I. L. Bep. 3 All.
287.
See Bale by Guardian.
SOONDAR NARArN V. BENNUD
Rah. ..I. L. Bep. 4 Cal. 76.
164.
VNCONSCIONABLE HARGAOT.
See Contract. 13.
Venkittaraha v. Kimbarath...
I. I-. Hop. 1 Mad. 349.
Usury,} The defendant, a Hindu of the age
of sixteen years and one or two months, borrowed
money from the plaintiff, a professional money-
lender, on a bond bearing interest at 36 per cent,
per annum. Phear, J., held on the merits of
the case, that the transaction was wholly un-
conscionable, and one which a Court of Equity
ould n
Held, on appeal {Garth, C.J., and Macpherson,
J), that the plaintiff was only entitled to a de-
cree for the sum actually received from him by
the defendant with interest at 6 per cent, per
D,gltlzed by G00gle
( 1*76 ) DIGEST OP CASES. ( 1470 )
USCONSCIONABTJC BARGAIN -contd. UNDER-TENUBE-™^.
It is an entire mistake to suppose that be-
cause the law against usury has been repealed,
a money-lender can enforce such a contract
made with a young man who has only just at-
tained the age of majority. The jurisdiction of
the Court Over unconscionable bargains of this
nature is not affected by the repeal of the usury
laws. MoTHOORMOHUN ROV e. SoORENDRO
Narain Dbb L L. Bep. 1 Cal.
109, 180, 1876.
S. C. under Age of Majority.
Equilable Relief Against Extortionate Bar-
gain— Promissory Note — Interest deducted in Ad-
vance.] The Court will not protect persons
who, with their eyes open, choose wilfully and
knowingly to enter into unconscionable and
extortionate bargains.
It is only where a person enters into an in-
equitable bargain, and it is shown that he was
in ignorance of the unfair nature of the trans-
action, that the Court is justfied in interfering.
Mackintosh v. Wingrove. Garth, C.J., and
Kariby, J L X Rep. 4 Cal. 137;
3 Cal. Rep. 433, 1878.
UNDERTAKING HOI 10 SUE.
See Privilege from Arrest.
Omritolall Dev...I. L. Rep. 1
Cal. 78.
UNDER TENURE — Limitation to S
Cancel.
See Sale of Under Tenure. 3.
Unnoda Churn v- Mot
Nath..X L. Rep. 4 Cal.
860.
Sale of.
See Bale of Under Tenure. 1. 2.
Bhugeeruth e. Monei
L. Rep. 4 Cal. 856.
Unnoda Churn v. Mothui
Nath Ibid. 860.
— Sale of — under Decree for Arrears of Rent
—Mortgagee's Right to Notice.
See Sale of Under Tenure. 3.
Laidley v. Gunness Ckuni
Saiioo...I. X Rep. 4. Cal. I
438.!
— — Sale of — in Execution of Decree ir
Arrears of Rent — Process against otbe
Immoveable Property of Debtor-
See Brag. Act TUX of 1809, § 61
Harrish Chuhdrk Roy t Cot-
I.RCTOli OF JeSSORB— I L
Bap. 8CavL7U
Sale of — Growing Crops pass on — onleu
excepted Specially or by Custom.
See Beng. Act TUX of 1869 , § 68.
APATOOLLAH V. DwARKA Nath.
I. L. Bap. 4 CaL 811
UNDER. TENURE, SUIT TO AVOID.
See Bale for Arrears of Kerenan 1.
Baqho Bibeb v. Rah Kant ...I
. X Rep. 3 Cal. SM
UNDISPOSED- OF RESIDUE.
See Executor —Batata of. S.
Lallubhai v. Mankuvakiui.. L
X Bep. 9 Bom. 388-
UNDrVTDED HINDU FAMILY— Alieea-
tion by Member of— of his Share in An-
cestral Property of— by Voluntary Alien-
or Hindu La wt— Alienation of
Ancestral Property. 2. 3. 4.
6.7.
Girdharee Lall*. Kantoo Lall.
L. Bep. 1 L A. 321 ; 14
Beng. X Bep. 187.
MuSST. PHOOLBAS KUAR f. I. ALII
Jogeshur ..X Bep. SLA
7; I. L. R. 1 Cal. 236.
Suraj Bansi Kuar v. Sheo Per-
shad Singh. ,.L. Rep. 6 1
A. 88.
JAlUDAR Sinoh v. Rah Lai. ..I
L. Rep. 4 Cal. 733.
CllAHAILl KUAR V. RAH PRASAD...
LL.Rep.aAU.S67.
See Hindu Law— Gift. 9.
Ballabh Das v. Sunder Dass...
I. X Rep. 1 All. 420.
See Hindu Law — Undivided Fa-
mily. 8.
Dbehdaval o. Juodeef ..L. Rep.
4 1. A. 347; LXBep.8
Cal 108.
D.gmzed by G00gle
DIGEST OF CASES.
UNDIVIDED HINDU FAJHLY-«*«.
See Onus Probandi. 7. 8.
Adurmoni Devi e. Chowdhhy Sib
Narain Kur...I.' L. Bap, S
Cal. 1.
Bhebkharain Singh «. Januk
Sihoh I, L. Rep. 8 Cal.
438.
Attachment and Sale of Coparcener's Inter-
est in Undivided Property of.
See Bombay Act V. of 1883. 2.
Ardasjr o. Muse. ..I. L. Bep. 1
Bom. 801.
See Civil Procedure Code, Act
Vm, of 1888, § 389.
Kalapa s. Venkatesk I. L.
Sep. 2 Bom. 876.
Sec Hindu Law— Alienation of An-
cestral Property. 1 to 8.
Bhikan Das v. Pura„.L L Bep.
3 All. 141.
Girdharee Lallc. KantooLall.
D. Bep. 1 1 A . SSI ; 16 Beng.
L. Bep. 187.
PlfOOLBAS KOONWARV. l.ALLA ]o-
GESSUR...L. Bep. S I. A. 7;
I. L. Bep. 1 Cal. 328.
Suraj Bunsi Koerd. Sheo Per-
SHAD...L. Bep. 6 LA. 88.
Jaludar Si. -Jo v. Rah Lall I.
L. Rep. 4 Cal. 723
Set Hindu Law—Gift. 3.
Ballabh Das e. Sunder Das „L
L. Bep. 1 AIL 438.
See Hindu Lav— Liability of An-
cestral Eatate in the hands
of the Heir to the Debts of
the Father
Naravano. Narso...I. L. Bep. 1
See Hindu Law— Undivided Fa-
mily. 8. 4. 7. 8.
Rai Narain Das v. Nownit Lai.-.
L L. Bep. 4 Cal. 809.
Deendavalu. ]l-gdeep...L. Bep.
4 L A. 247 ; I. L. Rep. 3
Cal. IBS.
Luchmi Dai Koori t». Asia an
Singh. ..I. L. Bep. 3 Cal. 213.
Baeaji u. Vasudev...I. L.Bep, 1
Bom. 98.
UNDIVIDED HINDU FAMILY— contd.
See Sale in Execution of Decree,
10. 18.
Venkatarahyyan e. Venkata.
SUBBRAMAN1A...I. L. Hop. X
Had. 88.
V E N K A T A S A M I V. K U P P A I VA H. -Ibid ,
884.
Certificate of Administration to Estate and
Guardianship of Minor Children of De-
ceased Member of — cannot be granted
where no Separate Estate.
SvOertiflcateof Administration. 1.
GlIRACHAHVA P. SvAHIRAY ACH A-
RYA...I. L. Bep. 3 Bom. 48L
Compromise by Father when Binding on
Set Compromise. 2.
Pitah Singh u, Ujagar Singh...
I. L. Bep. 1 AIL 881.
Gift by Member of— of his Share in Undi-
vided Property of.
See Hindu Law— Gift. 2.
Ballabh Das o. Sunder Das...
L L. Bep. 1 All. 438.
Gift by Father of Self-Acquired Immove-
able Property to One Son to Exclusion
of Others.
See Hindu Law— Undivided Fami-
ly I.
Sital o, Macho I. L. Rep. 1
All. 894.
Manager — Power of — to pledge Joint An.
cestral Property for purposes of Joint
Ancestral Trade— Insolvency— Title of
Official Assignee.
See Hindu Law — Maintenance of
Widow. 9.
JOHURRA B|BE£7. SrEEGOPALMiS.
SER...I.IL. Bep.|l Cal. 470.
See Hindu Law— Ancestral Trade.
JOYKISTO COWAR «. NlTTYANUND
Nundy LL-Bep. 3CaL
738.
See Hindu Law — Manager.
Kumarasamio. Pala.-.L L.Bep.
1 Mad. 380.
by Google
( 1*79 )
DIGEST OF CASES.
UNDIVIDED HINDU FAMILY— amid
Mortgage of Ancestral Estate by Father-
Suit to Enforce— Onus Probandi-
See Onu» Frobaadi. 7.
Singh... I. L. Rep. 2 Cal.
43a
— Personal Decree against Father— Sale of
Family Property in Execution — Right of
Son (o recover his Share.
Set Bale in Execution of Decree-.
10. It).
VENKATASAMlNAlKtF.KUFPA
I. L. Rep. 1 Had. 364.
Venkataramayvan v. Vbni
SUBBRAMANIA Ibid. 358.
— Purchase by Member of— with Joint Fund*.
See Hindu Law— Undivided Fa-
mily. 10.
BissESSurt Lall Sahoo «. Maha-
raja Luchmessur Singh...
L. Rep. 0. 1. A. 833.
— Right of Nephews and Brothers of Deceas-
ed Member of — to Succeed.
See the Cases under Hindu Law-
Inheritance— Brother*, and
Hindu Law— Inheritance—
Sephews,
— . Suit by One Member of — for a Specific
Share.
See Fartiee to Suit. 4.
Nathiini Mahton v. Manraj
Mahton...!. L. Rep. 3 Oal.
149.
— Summary Settlement with, and Grant of
Talukdari Sanad, to Member of.
See Oudh Proclamation of 1886,
para. 8. 1.
HURPURSHADT. SHEO DyAL...L.
Rep. 3 I- A. 269.
UNDUE INFLUENCE.— Ik rarnamah set
aside.'] An lirarnamah whereby the three plain-
tiffs (two of them being under age, and the eld-
est having only lately attained his majority)
parted with half their property without consi-
deration, whilst not fully acquainted with their
rights, without professional advice, and during a
state Of things likely to over-awe them, and
materially affect the free exercise of their will,
set aside. PreM NaraIN Singh b. Parasram
Singh L. Rep. 4 I. A. 101, 1877.
Mir
UNDUE PRESSURE.
See Champerty. 1.
j. Reno a Knisau
-L. Rep. 1 I. A
241
UNFOUNDED CHARGE OF TJNCHA.fr
TITT AGAINST WIFE NOT, FEB
BE, CRUELTY.
See Restitution of Conjugal
Eights. 1.
Yamunabai v. Naraycn
Pekdse...L L. Hep. 1 2
164.
UNINTERRUPTED POSSESSION F01
THIRTY TEARS AS PROPRIA
TOR.
Set Bombay Act I. of 1865, f SS.
Collector op Thana «. Dam-
bhai Bomanji-.I. L. Rep.!
Bom. 80S.
UNLAWFUL ASSEMBLY, ARMED
WITH A DEADLY WEAPON.
See Summary Procedure.
Empress e. Aboool Karim...I.
L. Rep. 4 CaLlS.
UNLiaUIDATED DABAOESCAWNOT
BESET-OFF— Against Claim on Mort-
gage.
See Set-off. 9.
Raghii Nath v. Ashraf Husais
L L. Rep. 2 All. 262.
UNPAID PURCHASE-MONEY— Vendor1*
See Vendor and Purchaser. 1.
Triualrav v. The Municipal
Com ii i ssi oners of Hubli...
L L. Rep. 3 Bom. 172
UNRECOGNIZED PORTION OF A
BHAG IN BHAGDABI OR NAB-
WADARI TILLAGE — Attachment
of.
Sec Bombay Act V. of 1862.
Ranchooasv. Ranciiouas..X L-
Rep. 1 Bom- 681.
Ardasir v. Muse. ..I. L. Eep. 1
Bom. B01.
Digitized byGOO^Ie
( I«l )
DIGEST OF CASES.
( 1«8 )
TTNRECOBDED COPABTNEB, PUB-
CHASE BY— Sale for Arrears of Re-
venue— Encumbrances.
&* Act XL of 1859, § S3.
AhdoolBari ti. Ramdass Condoo.
I. L. Rep? 4 Cal. 607.
UNREGISTERED DEED OF ASSIGN-
MENT OF MOETGA0E, OF
WHICH BEOTSTBATION NE-
CE8SABT Other Evidence of As-
signment Inadmissible.
See Assignment of Mortgage.
Ganpat v- Adakj[...I L. Bep.
3 Bom. 312.
UNREGISTERED DEED OF WHICH
BEGISTBATION NECES8ABY
Admissibility of— in Evidence to prove
Breach of Contract.
See Registration. 38.
Raju b, Krishnarav...L L. Bep.
3 Bom. 373.
UNREGISTERED MORTGAGE DEED
— Inadmissibility of — in Suit for Money
Lent.
Bet Registration. 34. 38.
Mattongenby r. Ramnarrain.
I. L. Bep. 4 Cal. 38,
Raju o. Krishnarav...I. L. Bep. S
Bom. 373.
■UNREGISTERED AND REGISTERED
DEEDS-PRIORITY.
See the Index heading Priority.
UNSTAMPED OB INSUFFICIENTLY
STAMPED DOCUMENT — Improper
Admission of— in Evidence.
See Appeal— CiviL 20.
Khoob Lall o. Jungle Singh...
L L. Rep. 3 CaL 787.
0m Bitot not affecting the Merita. 1.
Afzal-un-Nissa v. Tkj Ban... I.
L. Bep. 3 All. 735.
Bee Registration, 8.
Safdar Am Khan b. Lachman
Dab... J. 1. Bep. 3 All. 504.
UNSTAMPED DOCUMENT— Rejection
ol — Tender of Penalty and Duty,
Set Siamp. 7.
IIAMf ABATV K IilBI ]|10H ...
I. L. Bep. 4 Cal. 313.
UNSTAMPED PROMISSORY NOTE—
Suit on — Evidence of Consideration.
Set Evidence. 4.
Golab Chand v- Thakuran
Mohokoom I. L. Bep. 8
Cal. 314.
UNSUCCESSFUL APPLICATION FOB
LEAVE TO SUE IN FORMA PAU-
PERIS NOT A DEMAND BY WAY
OF ACTION, OF DOWEB.
See Mahomedan Law— Dower. 1.
Range Khajooboonissa e. Ranse
Ryeesoonlssa ... L. Bep. 3
X. A. 236.
UBAQU BIGHT— ALIENATION OF.
See Alienation of Right of Manage-
ment of a Pagoda.
Rajah Vvrmah Valia v. Ravi
Vijkmah Mutha,..L. Bep. 4
I. A. 76,
UBALLEBS — Alienation by — of Uraima
Rights.
See Alienation of Bight of Manage-
ment of a Pagoda.
Rajah Vurmak Valia v. Ravi
Vuriiah Mutha...L, Bep.
4 L A. 76.
USEB— Easemen t.
See the Cases under Easement.
Evidence of — to explain Grant.
Ste Bight of Fishery in Public
Navigable Kiver.
Pkosonno Coohar v. Rah Coo-
har...I. L. Bep. 4 Cal. S3.
66.
See Construction of Sanad. 1.
Ravji v. Dadaji... I. L. Bep. 1
Bom. 623,627.
USUFRUCTUARY MORTGAGE.
See Mortgage. 12. 37. 38. 38. 41.
Decree for Redemption of — though Mort-
gagor's Allegation of Satisfaction of Mort-
gage not proved.
See Mortgage. 86.
Sahib Zadah ». Parwhshar Das.
X L. Bep. 1 All. 634.
i Mortgage by Conditional Sale.
Sec Mortgage. 13.
Iahomrd Ho»-
...L. Bep. 3 LA. 341.
by Google
DIGEST OF CASES.
USURIOUS BATE OF INTEREST.
See Uncon»cionable Bargain,
Set Hindu Lav— Undivided Fami-
ly. 7.
Lhchmi Dai Koori s. Aswan
Singh I. L. Rep. 3 Cal.
SIS.
VACATION — Limitation expiring during —
Presentation of Plaint on Re-opening of
See Limitation. 6.
Bishan Chand v. Ahmad Khan...
I. L. Rep. 1 AIL 863.
Limitation for Suit for Arrears of Rent, ex.
piring during — Presentation of Plaint
on Reopening of Court, too Late.
So; Limitation. 13.
PURRANCHUNDSRir, MirTTYLAL...
L L. Rep. 4 Cal. BO.
—Time for Deposit of Costs of Appeal to
Privy Council expiring during.
See Act VI. of 1874, §8.
Lalla Gofer Chand.. .L L. Rep.
3 CaL 128.
VAGUENESS OF CHARGE- false Evi-
dence.
See Criminal Procedure Code, Act
X. of 1879, §471.3.
Reu. v. Baijoo Lall.-I. L. Rep.
1 Cal. 460.
— As to PnrticoJar Direction of Law disobey-
ed—Penal Code, f 317.
Sec Charge. 1.
lui'x. 7 Baba* Khan. ..I. L.Rep.
3 Bom. 143.
— Penal Code, f J 191, 294.
See High Court Criminal Proce-
dure, Act X. of 187S, § 147.
4, and iff Charge. 3.
Reg. v. Upendronath Doss. . .
I. L.Rep. 1 CaL 356.
VAKALATNAMA-fflam/. Act XVIII. of
1869, Sched. //.] If a pleader is authorized by
the iiakalatnama under which he acts to receive
monies or documents for his client in the course
of the cause which be is empowered to conduct,
or as a consequence of the decree or any order
of the Court in such a cause, a Court of Justice
might legally and with propriety direct a public
VAKALATNAJKA-™*^.
officer to pay money or make over valuable
documents to the pleader, though he ha9 pot
been authorized by a power of attorney bearing
the stamp prescribed in Act XVIII. of 1869,
Sched. II., to receive on behalf of his client
such money or valuable documents, provided
that such money or documents have become
receivable by the client in the ordinary course
of the suit, or in consequence of the order or
decree. Anonymous. Garth, C.J., Jackson and
Ainslie,}} I. L. Rap. 8 Cal. 787,1873.
VAKIL — Special Agreement with — for Reward
in event of Success, proportioned ID
Amount Decreed.
See Inam Chitti.
RAKCH ASDKA V. KALU..I. L. B*P.
a Bom. SOS.
VALIDITY OF AWARD FOTJNDED OH
EVIDENCE TAKEN ON OATH
ILLEGALLY AD MINI ST EKED.
Set Oatha Act X. of 1878, §5 9>
10, 13.
Wali-ul-la v. Ghui.au A11-..X
L. Rep. 1 All 0S8.
VALUATION OF SUIT— By Plaintiff under
CL iv. of i J of Act V 1 1 . of i8jc— Revision
of, by Judge.
See Court Fee*. 9.
Manohar „. Bawa Ramomba*
BA3...L I* Rep. 3 Bom. 318.
For purposes of Jurisdiction.
See Jurisdiction. 19. 90.
Bai Makhor v. Bularhi-.I L.
Rep. 1 Bom. 638'
Kalit 0. VlSKRAM ... L L. R»p.
1 Bom. M3-
See Manohar «. Bawa Ramchara"-
das :LL. Rep. 2 Bom. 319.
28°.
For purposes of Stamp Duty— Appeal-
See Appeal to the Privy Council. L
Baboo Lekra] Roy c Kakam
S«...LW.lIl«l
Sn Practice— Privy Council «•
K»uio I. Sah» .. Hu««o»»"".
L.Bep. 114-84'
Di,iii,.db»Goo<^le
( I486 )
DIGEST OP CASES.
VALUE OF INTEREST CREATED IN
IMMOVEABLE PROPERTY-
COMPUTATION OF, FOR REGIS-
TRATION PURPOSES - Present
Value of Interest created, and Amount of
Consideration stated im Document, irres-
pective of Future Profits or Interest, mea-
sures Necessity to Register.
See Registration. 1. 7. 8. 9. 16, 17.
18. SO.
Karan StdoH v. Ram Lal...L L.
Rep. 3 All. 88.
Sitka b. Visram...!. L. Rep. 9
Bom. 97.
Nana v. Anant Ibid. 853.
Shahkar c.Vishnu. ..I. L. Rep.
1 Bom. 67.
Narsapa v. Guruvapa I. L.
Bep.llffad.878.
Rah D. KooercThacoorRoy...
I. L. Bep. 4 Oal. 81.
Ahmed Baksh o. Gobindi...I. L.
Bep. 2 AH. 316.
Contra, see Registration, 19, 21.
Rajfati i. Rah Sukhi ..L, L.
Bep. 2 All. 49.
Uarshan Sino p. Hanwanta...
I. L. Bep. 1 All. 374.
VARIANCE BETWEEN -WRITTEN
STATEMENT AND FJiOOF— Act VIII. of
1859, } 123]. Section 123 of Act VIII. of 1859
contemplates that a defendant shall, in his
written statement, set forth the case he intends
to make at the trial.
The rule laid down In Eskettckunder Singh v.
Skatnckum Bhutio (11 Moo. I. A. 20-24) aid
Mahomed Yahoor Ali Khan v. Musst. Thatoor-
anee Batta Kotr (11 Moo. I. A. 468.473), that the
state of facts, and the equities and ground of relief
originally alleged and pleaded by the plaintiff,
shall not be departed from, and that a plaintiff
is not entitled to relief on facts or documents
not stated or referred to by him in his pleadings,
is equally applicable to a defendant. Where,
therefore, a defendant, in a suit in ejectment,
averred in his written statement that the land in
dispute was in fact his, but had previously to
1 865 been encroached on by the plaintiff, who
in 1865 was about to build upon it; and that
the defendant then, in order to avoid litigation,
compromised Ihe dispute by paying the plaintiff '
VARIANCE BETWEEN WRITTEN
STATEMENT AND PBOOF— contd.
a sum of money, and purchased the land, and
had since then remained in possession : —
Held, that the defendant could not be allowed
at the trial to prove a case of continuous user
and possession adverse to the plaintiff's com.
mencing before 1865. Chova Kara -b. Isa bin
Khalifa. Marriott, j I. L. Bep. 1 Bom.
208, 1876.
VARIANCE BETWEEN MEMORAN-
DUM OF ASSOCIATION AND
PROSPECTUS OF COMPANY.
See Agreement to take Shares.
Anandji Visrau v. Nakiad S.
and W. Co I.L. Rep. 1
Bom. 320.
VARIANCE BETWEEN PLAINT AND
PROOF.
See Suit for Confirmation of Poa-
session. 1.
Tebietputd. Gossain Sadersan.
I. L. Rep. 4 Cal. 48.
Rah Doolary ». Thacoor Roy...
Ibid. 61, p. 63.
VARIANCE BETWEEN PLEADING
AND PROOF.
See Estoppel. 3.
Gour Monee v Krishna Chun-
DBR...I. l.Bep. 4CaL 387.
See Land Tenures in Eanara.
Bhaskarapa v Collector op
Kanara L L. Bep. 3
Bom. 452.
VABIATION OF ASSESSMENT DOES
NOT AFFECT PBOPBIETABT
RIGHT.
See Bombay Act I. of 1868, ( 38.
Collector of Thana b Dada-
bhai I. L. Rep. 1 Bom.
853.
VARYING DECBEE FOR MAINTE-
NANCE.
See Multiplicity of Suite. 9.
SlOLINQAPA ». SlDAVA...;..I. L.
Bep. 2. Bom. 624. 080.
See Hindu Law —Maintenance of
Widow, 10.
Ruka Bai o, Gauda Bai...L L.
Bep. I Ali 694.
Digitized by GoOgle
( 1187 )
DIGEST OF CASES.
( 1488 )
VATANDAR JOSHX— Right of— to recover
Damages from Intruder on his Office.
Set Disturbance of Office. 2.
RajaShivappa r- Krishnabhat.
I. L. Hop. 3 Bom. 383.
VENDOR— Absence of— Registration.
See Registration. 3.
Sah Makhi-n i. Sah Koohdun...
L. Rep. 3 I. A. 310.
VENDOR'S LIEN TOR UNPAID PUR-
CHASE MONET .
See Vendor and Purchaser. 1.
Trimalrav v- The M
I. L. Rep. 8 Bom. 173.
VENDOR AND FURCHABER-Title by
Estoppel.
See Sale in Execution of Decree. 19.
Alukmonee b. Bangs Madmijb...
LL. Rep. 4 CaL 877.
1. Sale of Immoveable Property— Pos-
session— Non-Payment of Purchase- Monty— Lien
— Vendor's Remedy.'] A vendor of immoveable
property who has given possession to the
purchaser, cannot rescind the contract and
recover possession of the house because the
balance of the purchase -money is not paid. He
has a lien on the house for the unpaid purchase
money, and his remedy is to sue the purchaser
for the balance. Tkihalrav Ragkavbndra v
The Municipal Commissioners of Hubli.
Mehiil and Kemball, JJ. L L. Rep. 3 Bom.
172, 1878.
2. Act XIX. of 1873. 1 * 43. 83 and 1st,
CI. 5— Assessment, Agreement to pay— Cause of
Action- Right to Sue— Jurisdiction of Civil and
Revenue Courts.] The purchaser of a Certain
estate paying revenue to Government agreed with
the vendors, shortly after the sale, that they
should retain a certain portion of such estate free
of rent, and that he would pay the revenue payable
in respect of such portion. In 1853, in a suit by
the vendors against the purchaser to enforce
this agreement, the Sudder Court held that the
revenue payable in respect of such portion of the
estate was payable by the purchaser. In 1875,
on a fresh settlement of the estate, the represen-
tatives in title of (he purchaser applied to the
settlement officer to settle such portion of the
estate with the representative in title of the
vendors. The settlement officer refused this
application, but it was subsequently allowed by
the revenue authorities. The representative in
VENDOR AND PURCHASES— contd.
title of the vendors then sued the representatives
in title of the purchaser in the Civil Court'
claiming " that he might, in accordance with the
agreement between the vendors and the purcha-
ser, be exempted from paying the revenue in
respect of such portion, as against the defen-
dants, without any injury to the Government ;
that the defendants might be ordered to pay, as
heretofore, such revenue ; and that the defen-
dant) might be ordered never to claim or
demand from him any revenue they might be
compelled to pay in respect of such portion" : —
Held by Spankie, ]., that assuming that the
agreement between the vendors and the pur-
chaser was enforceable, the act of the defendants
in moving the settlement officer to settle such
portion of the estate with the plaintiff gave the
latter a cause of action. And that, the object of
the plaintiffs suit being to obtain a declaration
that, as between him and the defendants, the
latter were bound to pay revenue In respect of
such portion, the suit was not barred by Act
XIX. of 1873, f 341.
Held, also, that though the revenue authorities
light regard the decision of the Sudder Court as
binding on the parties then before the Court for
the currency of the then settlement, that decision,
that settlement having expired, and f 83 of Act
XIX. of 1873 having come into force, could not
trol the power of the revenue authorities to
settle the land in question with the plaintiff,
ho was its proprietor.
Held by Oldfield, J„ that with reference to
tt « and 83 of Act XIX. of 1873, '"e Civil
Courts ceuld not relieve the plaintiff of his
liability to pay revenue.
Held by the Court, that in the absence of
proof that the agreement by Ihe purchaser was
tended to extend beyond the period of the set-
tlement then current, and that it was binding on
his representatives in title, the plaintiff could
t obtain the declaration besought. Hira Lai.
Ganesh PSASAD...X. L. Rep. 2 All. 415,
1879.
VESTED INTEREST.
See Will. 9.
C. M. Hunter... I. L. Rep. 4
CaL 430.
- Gift of Residue to a Class — Postponement
of Period of Distribution.
See Will 4.
Masiyk v. Fbrgusson... I. I*
Rep. 4 CaL 304.
>v Google
DIGEST OF CASES.
( 1490 )
VESTED INTBREST-rany.
Of Members of Joint Hindu Family (Mitak-
shara), Nature of.
See Hindu La w— Partition. 11.
Raghubanund f. Sadhu Churn.
I. L.Rop. 4Cal. 435.
VILLAGE ACCOUNTANT - Hushing up
Charge of Theft.
See Penal Code, § 217.
Rahnjhi Nayar...I. L. Rop. 1
Had. 266.
VILLAGE ADMINISTRATION PA-
PER — Attestation of — by Lessee of
See Pre-emption. 10.
Chad ami Lu i. n
Baksh...I. L. Rep. 1 All.
063.
Claim of Right of Pre-emption founded on
Special Agreement recorded in.
See Pre-emption. 10, ut sitpra. 19.
Maratib Ali v. Abdul Hakim...
I. L. Rep. 1 All. 667.
Entry in— Trust.
See Trust. 1. 9.
Kahal Singh t>. Batul Fatima.
I. L. Rep. 2 All. 460.
Harbaj v. GunANi...Ibid. 493.
VILLAGE GRAZING. GROUNDS- Right
to graze Cattle on.
See Right of Free Pasturage.
Collector of Thana v. Bal
PATBL...Z. L. Rep. 3 Bom.
110.
VILLAGE MUN9IEPS PEON— Hushing
up Charge of Theft.
See Penal Code, § 317.
Raunihi Nayar...I. L. Rep. 1
Had. 266.
VILLAGE KTOtBXFF A village Munsiff
is in the Madras Presidency a Magistrate with-
in the meaning of j 26 of the Evidence Act I.
of 1872. Empress v. Rahan]ivan...I. L. Rep.
3 Mad. 9.
VILLAGE PRIEST— Suit by— against a
Yajman.
Set Right to Sue. 13.
. Sadashiv I. L
R«p. 8 Bom. 9.
VQUUUTTRODATA— Authority of.
See Hindu Law — Authority of
Writers. 3.
DttOHDU GlIRAV si. Gangabai
I. L. Rep. 3 Bom. 369.
VIS MAJOR.
Set Maintenance of Bund.
Rah Lall e. Lill Dhary...I. L,
Rep. 3 Cal. 776.
VOID AGREEMENT.
See Contract. 17. 17a.
Oakes & Co. v. Jackson. ..I. L
Rep. 1 Had. 134.
Vaithelinga «. Saminada.-.I. L.
Rep. 2 Mad. 44.
Agreement without Consideration,
See Contract. 6.
Manna Lal ». Bank of Bengal...
I. L. Rep. 1 AH, 309-
Illegal Consideration.
See Consideration. 1.
Fateh Singh t. Sanwal Singh...
I. L. Rep. I All. 761.
VOID BEQUEST— Gift to Class, some of
whom not in Existence at Testator's
Death,
See Hindu Law— Will. 4.
K II erode money v. Doorgahoney,
I. L. Rep. 4 Cat 466.
— Uncertainty.
See WiU. 7.
DwARKANATH 0. BaRRODA PER-
saud.-.I. L-Rep.4Cal.44a
— Uncertainty — Power to Executor to lay out
so much as he may think fit on Erection
of Bathing-Ghaut and Temples.
See Hindu Law— Will. 3.
SURBO MUNGOLA V. MOHENDRO*
nath I. L. Rep. 4 Cat.
608.
VOLUNTARILY ASSISTING IN CON-
CEALING STOLEN PROPERTY.
See Conviction on Several Charges.
2.
Empress v. Raheshar Rai...I. L
Rep- 1 All. 379.
D.gmzed by GoOgle
( 1481 )
DIGEST OF CASES.
( 1*92 )
VOLUNTARILY CAUBING HURT -I
Penal Cede, { 323.] Where the accused inten-|
tionally struck another who was suffering from
diseased spleen, but not intending to cause bis
death, or such bodily injury as was likely to
cause his death, or the knowledge that the per-
son struck was so suffering, and that by his act
he was likely (o cause his death, and by his act
caused the death of such person : —
Held, that he was properly convicted under
i 333 of the Penal Code.
Empress «. Fox. ..I. L. Hop. 2
AIL 022, 1879.
S. C. under Penal Code, § 304.
VOLUNTARILY CAUSING GRIEV-
OUS HURT.
See Compounding Offences. 8.
Reg. o. RAHtHAT I. L. Rep.
1 Bom. 147.
VOLUNTARY CONVEYANCE BY IN-
SOLVENT— Slat. II and 12 Viet., C. », jj 31,
34, 26, 32— Fraudulent Preference.'^ Until the
bankruptcy or insolvency of a debtor takes legal
effect, he does not act voluntarily in the sense
of giving a fraudulent preference, where he
simply pays a debt that is really due, at the
request, in good faith, of a particular debtor.
Where, two days before a person was adjudi-
cated an insolvent, and his property had by
order vested in the Official Assignee, under the
provisions of the Indian Insolvent Act, Stat.
VOLUNTARY PAYMEKI-™W.
Of Government Revenue by Person Wrong-
fully in Possession— Right to recover.
See Right to recover Government
Revenue paid daring
Wrongful Possession.
TlLUCK CHAHD «. SOUDAHIKI DASI.
I. L. Rep. 4 CaL B66.
Payment by Mortgagee of Patni Taluk to
prevent Sale for Arrears of Government
Revenue or Ze in in dan Rent is not a.
See Co-Sharers of Fatni Taluk.
MoHBSH CM UNDER «. RAM Pith-
sono I. L. Rep. 4 Cat
039.
WAIVER.
Of Default.
See Limitation. 30.
Of Objection to Jurisdiction.
See Appeal— Civil. 8.
Bat MaKHOR*. BUIAKH1...LL.
Rep. 1 Bom. 638.
Of Plea of Limitation.
See Limitation. 3.
had no
and 12 Vict., C.
neously, but in consequence of being pressed,
signed to a particular creditor certain property: —
Held by Stuart, C.J., that such assignment
was not " voluntary " within the meaning of f 24
of that Act, and, therefore, was not fraudulent
and void, as against the Official Assignee
By Pearson, ]., that the assignment
a voluntary one in the sense of having been
made spontaneously, without pressi
vesting order was not passed in consequence of
any petition filed by the insolvent for his dls
charge, ( 24 of the Indian Insolvent Act was.
apparently, not relevant to the case. Sheo
Prasad «. Miller L L. Rep. S All. 474,
1870.
VOLUNTARY PAYMENT.
See Sale in Execution of Decree. 17.
Rah Tuhulv. Bissbswar La It...
L. Rep. 2 I. A. 131.
See Setting aside Sale of Superior
Tenure, Effect of.
Srsbnarain Baqchee i7. Smith.
L L. Rep. 4 Cal. 807.
WAIVER OP IRREGULARITY— At Exe-
cution Sale, by Judgment -Debtor.
See Sale in Execution of Decree. 18.
GlRDHARIU. HllRDEO NaRAIN.-.L,
Rep. 3 I . A. 330.
WAIVER OP IRREGULARITIES BY
PRISONER.
See Disqualifying Interest of
Judge.
Rko. v. Bholanath Sen L L,
Rep. S CaL 23.
WAJTE-UL-ARZ.
See Village Administration Paper.
WAKP— Joint MutuwatU— Survivor— Right of
Beneficiaries to Sue.
See Kahomedan Law— Wakf.
Phate Sahbb b. Damodar. . .1. L.
Sep. 8 Bom. 84.
Diaxized by Google
(
)
DIGEST OF CASES.
( 1«* >
WAST QE REASONABLE AND PRO
BASLE CAUSE.
See Act 3CVIIL of 1880. 3,
Collector of Sea Customs, Ma-
dras, r. Punniar Chithahba-
Raii I- L. Rep. IMad.
89.
See Champerty. 2.
Ram Coomar *, Chundbr Canto.
L. Rep. 4 I. A. 28 ; I. L.
Rep. 3 Cal. 238.
WARRANT— Issued in Foreign Territory.
See Criminal Procedure Code, Act
X. of 1878, § 1B7.
Reo. v. Loch a I. L. Rep. 1
Bom. 340.
WABBANIT.
See Master and Servant. 1.
MacGiluvrav o. Jokai Assam
Tea Co..X L. Rep. 2 Cal.
33.
Breach of— of Quality— Right to rescind
Contract for Sale of Goods.
See Bale of Gogds.
Shoshi Mohun o. Nobo Krishto.
I. L. Rep. 4 Cal. 601.
Implied— Sale by Sample.
See Sale of Goods.
Skoshi Mohun v. NoboKrish-
to...L L. Rep. 4 Cal. 801.
WARRANTY OP TITLE.
S« Sheriff's Sale. 4.
Bejanjuf. Hormasji.,,1. L.Rep.
2 Bom. 258.
WASHERMAN— Not an Art ban.
See Madras Act IU. of 1871.
Poonen I. 1. Rep. 1 Mad.
174.
WASTE LAND.
See Rights of Wirtiadara .
Fakir Muhammad «. Tirumala
Chariak L L.Rep. 1
Had. 200.
WABTE-Suit by Reversioner to restrain-by
Widow in Possession, and for Declaration
of Title— Consequential Relief.
See Declaratory Decree. 0.
Kathama Natchiarb. Do rasing a
TEVER...L. Rep. 2 I, A. 169.
WATANDAR-Repre
See Declaratory Decree. 17.
Chikto v. Lakshmibai L L.
Rep. 2 Bom. 375.
WATANDAR PAMILY-Sole Represen-
tative of — Right to officiate as.
Set Declarator; Decree. 18.
Khando v. Appaji...!. L. Rep. 2
Bom. 370.
WATER— Escape of— Damage.
See Maintenance of Bund .
Ram Lall ». Lill Diiary.,.L L
Rep. 3 Cal. 77g!
See. Tanks.
Madras Railway Co. *. Zemin-
dar of Carvatenagaruh...
L. Rep. 1 1. A. 364.
Right to Flow of— Obstruction.
See Riparian Proprietors. 1.
Kali Kishen a. Jadao Lall...
L. Rep. 6 I. A. 190.
— — Right to Flow of— through an Artificial
Watercourse.
See Artificial Watercourse.
Rameshur Pershad o. Koonj
Behari...L. Rep. OLA
33 ; L. Rep. 4 App. Ca.
121 ; I. L. Rep. 4 CaL 633.
See Easement. 4.
Morgan u. Kirdy...L L. Rep. 2
Mad. 46.
WATERCOURSE- -Artificial— Right to the
Flow of Water— Right to Scour.
See Artificial Watercourse.
Rameshur Pershad 0. Koonj
Behari...L. Rep. 8. I. A.
33 ; L. Rep. 4 App. Ca.
121 ; I. L. Rep. 4 Cal. 633.
WATER SUPPLY— Causing Unauthorized
Diminution of.
&* Penal Code, §430.
Rama Krishna v. Palanivandi .,
r. L. Rep. 1 Mad. 262.
WELLS— Sinking— and Planting Trees, con-
trary to Condition in Lease.
Bee Forfeiture. 1.
Ablakh Rai ». Salim Ahmad
Khan ...I. L. Rep. 2 All.
437-
Denized by Google
( 1495 )
DIGEST OF CASES.
WEST INDIA. ESTATES— Lien of Mana-
See Mortgage. 33.
Moras «. Mittu BIBEE...I. L.
Bep. a Cal. 68-
WHABFOTGEB— Common Carrier— Bill of
Lading, Exception in — Loss by Fire.
See Bill of Lading.
Chin Hong & Co. «. Sens Moh
&Co LL. Bep. 4 Cal.
786.
ig precede the other sentence, it may have
been a legal sentence, but the subsequent sen-
ence of death or transportation, &c, would
endcr the infliction of the punishment illegal.
\non I. L. Hep. 1 Mad. 66,1876.
See Jurisdiction. 14.
Muhammad Abdul Kadur t. E. I.
R 1- Co...l L. ttep. 1 Mad.
376.
WHIPPING ACT VL OP 1864, || 3 « 3-
Thifl— Dishonestly Receiving Stolen Property— Art
X. of 187?, ( 505— Security for Good -Behaviour.']
P. was convicted by a Magistrate of the First j WIDOW- Adoption by.
Class of dishonestly receiving stolen property. ' See the Index heading Adoption by
He confessed on his trial that he had been twice ', Widow.
previously convicted of theft. He was sentenced
to be whipped and to suffer rigorous imprison-
ment, and the Court directed that on the
expiration of the term of imprisonment he should
furnish security for good behaviour. \ Childless— Right of— to lnhei
Alienation by.
See the Index heading Alienation by
Widow.
Held, that the offence of theft not being the
same as that of dishonestly receiving stolen
property, the sentence of whipping was illegal-
Though doubting whether the Magistrate had
adduced before him such evidence as to general
character as justified his dealing with the accused
under { 505 of Act X. of 1873, as a person
known by repute to be a thief or receiver of
stolen property, yet under the circumstances
the Court refused to interfere with the order for
security for good behaviour ; but held, that such
order should not have been part of the sentence
for the offence of which the accused was convicted.
There should have been a proceeding drawn out
representing that the Magistrate, from the evi-
dence as to general character adduced before
him, was satisfied that the accused was by repute
an offender within the terms of { 505 of Act X.
of 1E72, and therefore security would be required
of him, and an order should have been re-
corded to the effect that on the expiration of
the term of imprisonment the accused should be
brought up for the purpose of being bound.
Empress d. Partab. Spankie, J....I. L. Bep.
1 ALL 666, 1878.
i 7— Illegality of Sentence.'] A sentence of
whipping passed on a person who is already
under sentence of death, or transportation, 01
penal servitude, or imprisonment for more thar
five years, is illegal. If the sentence of whip-
See Hindu Law — Inheritance —
Daughters. 2. 3.
AhKITOLAL v. R AJUNEEKANT..L.
Bep. 21. A.pI3.
Gha Devi t>. Gokoolanano...
L. Bep. B i- A. 40 ; I. L.
Bep. 8 CaL 687.
- Childless— of Parsi.
See Act XXI. Of 1868, g 6.
M. K. Davurh. Mithi»ai...I.Il
Bep. 1 Bom. 6O8.
- Decree against Hindu— when binds Rever-
se Bes Judicata. 17.
Bkamsiove Dossee v. Kristo Ho-
kum...! L. Bep. a Cal. 333.
- Estate of.
See Hindu Law — Inberitanca —
Widow.
See Jain Law. 3.
Sheo Singh Rai t>- "Mossumit
Dakho L. Bep. OLA
87 ; I. L. Bep. 1 AU. 6»
- Gift by Hindu.
See Hindu Law-Gift. 3.
Ri.de Narain Singh o. RupKua*.
I. L. Bep. 1 ALL 784.
Digitized by G00gle
( 1«7 )
DIGEST OF CASES.
WIDOW— contd.
— — Hindu — Right of Residence in Family
See Hindu Law— Widow's Bight
of Residence in Family
House.
Gaum e. Chandramani I. L.
Rep. 1 All. 262.
■ Incontinence of Hindu.
See the Index heading Incontinence.
Mahomedan— Right of— to the Return,
See Mahomedan Law— Inheritance
—Return.
Mahomko Arshad Chowdhrv „.
Sajida Banoo...I. L. Rep.
3 Oal. 703
Maintenance of.
See Hindu Law— Maintenance of
Widow.
Remarriage of Hindu.
See Hindu Law — Remarriage of
Widow.
MURUGAYI D, V1KAMAKAL1..X L.
Rep. 1 Had. 236.
Right of Hindu— to enforce Partition.
See Hindu Law — Partition. 3.
SOUDAMONEY V. JOGESH ChUN-
HER...I. L. Rep. 2 CaL 262.
— Waste by — Suit by Reversioner to re-
strain—and for Declaration of Title —
Consequential Relief.
See Declaratory Decree. 2".
Kathama Natchiard. Dorasin-
oa Tever...L. Rep. 2 I. A.
169.
WIDOW'S ESTATE— Among Jains.
Set Jain Law. 2.
j Sin.
Raj i
Mm
Dakho...L. Rep. 6 1. A. 87 ;
I. L. Rep. 1 AH. 688.
- Forfeiture of.
Sir the Indei heading Incontinence.
See Hindu Law— Forfeiture of
Widow's Estate.
- Sale of — in Execution of Personal Decree
against a Hindu Widow.
Sec Personal Decree against a Hin-
du Widow.
Baijun Doobev v. Brij Bhookun
L. Rep. 2 I. A. 276.
WIDOWS ESTATE -<:„««.
See Sale in Execution of Decree
19.
Alukmonee e.BANEE M. Choc-
kerbuttv...i. L. Rep. 4 CaL
677.
WIDOW OF SEPARATED PATERNAL
UNCLE POSTPONED TO SISTER
OF DECEABED.
See Hindu Law-Inheritance— Sis-
ter.
M.AHAMTAFA «. NlLOANGAWA...
WIFE. ^ *!" Rep* 3 Bom' 368, n"
See the Index heading Husband and
Wife.
WILL.
See Mahomedan Law. 8.
Ranee Khajooroonissa «. Rou-
shan Jehak L. Rep 3
LA. 291} L L. R,p.
— Act I. of lB69, 5, »Cal.l84.
i«Gudh Proclamation of 1868,
para. 8. 1
Hurpurshao ™. Sheo Dval...
L. Rep. SLA. 259.
Absolute Gift— Construction.
See Will. 2.
Acknowledgment of Signature by Testator.
See Indian Succession Act X of
I860, §.60, CI. 3.
Mahickbai I. Hormasji.,.1. L.
Rep. 1 Bom. 547.
Annuity.
See Probate Duty. 1.
Last H-Wo/Ramchandra Laksh-
maw. ..I. L. Rep. 1 Bom. 118.
See Court Fees. 9.
In. tie Goods of RUSHTON...LL
Rep. S Cat 730.
Attestation of— No Particular Form Neces-
sary.
See Indian Succession Act X o
1866, § 60.
In the Goods of Roy money Dos-
see... I. L. Rep. 1 Cal. 160
Attestation of Hindu— Unnecessary.
See Hindu Law— Will. 3.
Radkabai -.i. Ganesh.-.L L. Rep.
3 Bom. 7.
Diarized by Google
( 1499 )
DIGEST OF CASES.
VrtLh-contd.
— Attestation of— by Signature Necessary-
Hark Insufficient.
See Indian Succession Act Z. of
1806, { 60, CI. 3.
Fernandez v. Alvhs ..I. L. Rep.
3 Bom. 382.
See Hindu Law— Will. 4.
Kherodkmonev v. Doorcamoney.
I. L. Bop. 4 CaL 456.
And see Treepoorasoonder* v.
Drbendronath...I. L. llop.
2 CaL 48, p. 63.
- Bequest to a Class — Remoteness.
See Hindu Law— Will 7.
Soudamoney ». Jogesh Chum,
oee ...I. L. Rep. 3 CaL 203.
-^—Bequest to Person Designated— Direction
to Widows to perform Adoption Ce renin-
See Hindu Law— 'Will. 6.
NiDHOOUONIr. SARODA...L.Bep.
3 I. A. 303.
Bequest to Sole and Separate Use of Mar-
ried Woman.
See Harried Woman's Separate
Property. 2. 3.
Hukstv. MussoorieBank ..L L.
Rep. 1 All. 762.
Beresford b. Hurst... Ibid. 779.
Charitable Bequest— Cy-prh.
See Will. 11.
— Charitable Bequest— Uncertainty — " Sur-
plus."
See WilL 7.
——Condition in Restraint of Partition or En-
joyment.
See Hindu Law- WilL 1, '
MOKOONDO *. GANESH I. L.
Rep. 1 Cal. 104.
■ Condition of Residence.
See WilL 10.
■ Double portion.
See Will. S.
WILL— conW.
Executor— Assignment of Legacy to.
See Will . 8. 4.
Executor — Estate of.
See Executor— Estate of. 1.
Mahiklals. Manchersha...L L.
Rep. 1 Bom. 369.
Executor — Estate of — Undisposed -of Resi-
See Executor -Estate oil 3.
Lallubhai v. Mankuvarbai...L
L. Rep. 3 Bom. 388.
Executors — Gift by Implication of Residue
See Will. 1.
Executor — Renunciation by.
See Hindu Law— Will. 3.
SURBO V. MOHENDRONATH...L L
Sep. 4 CaL 008.
Executor— Power of, to create Mortgage
with Power of Sale.
See Executors— Power of. I.
Seals t. Brown. ..I. L. Hep. 1
ALL 710-
Executory Trust in.
See WilL 19.
— - Of Hindu— Attestation of.
See Hindu Law— WilL 3.
Radiiaeai *. Gahesh..,I. L. Rep.
3 Bom. 7.
Hindu— Condition in Restraint of Parti-
See Hindu Law— Will. 1.
Mokoondo Lali. v. Ganesh Chcn-
DER...L L. Rep. 1 CaL 104.
. Hindu— Parol, Revocation of.
Set Act I. of 1868, § 22, CL 4.
Maharajah Pertab Narais
Singh v. Maharanee Subeao
Kooer L. Rep. 4 L A
Of Hindu Widow— Probate of.
See Probate. 1.
Beharry b. Jugqo.,.1. L. Hep.
4 Cal. 1.
Of Hindu Widow — of Lands purchased witb
Money granted in lieu of Maintenance or
with her SMMan— Valid.
See Hindu Law— Will. 8. 9.
Nellai Kumaru p. Marakathau-
hal I. L. Rep. 1 Had.
106.
Venkata «, V UN RATA .-.Ibid. 381.
by Google
DIGEST OF CASES.
■mtd.
— Inconsistent Condition.
See Hindu taw— Will. 13.
AsHUTOSH V. DuRGA CllUHS...
L. Rep. 6 L A. 182.
See Will.' 8.
— Nuncupative.
See Hindu Law— Will. 12.
Bhagwan v. Kali. ..I. I.. Rep.
1 Bom. 641.
— Power of Appointment — Execution of
Power.
swwm.8.
— Power of Hindu Daughter succeeding
Father's Estate, to Devise it by.
Set Hindu Law — Inheritance
Daughters. 1.
HaEIBHAT 0. DaHODARBHAT...
L L. Hop. 3 Bom. 171.
— Precatory Trust— Construction.
SfrWOl.6,
— Probate.
See the Cases collected under Probate.
— Probate — Document referring to Will.
See Probate. 6.
/* the Goods o/Sir J. Wemvss...
I. L. Rep. 4 CaL 721.
— Probate Duty.
See Trobate Duty.
— Residue, Executors when take.
SwWilLl.
— Residue, Gift to Class— Postponement of
Period of Distribution.
Sir Will. 4.
— Revocation of Hindu — by Parol.
See Act I. of 1860, g 22, CI. 4.
Maharajah Pertab N. Singh -n.
Maharanee Subhao Koobr.
L. Rep. 4 I. A. 228 ; I. L.
Hop. 3 CaL 626.
-Revocation of— by Second Marriage of
jew in Lifetime of First Wife.
See Indian Suecewion Act X. of
1866,5 66.
GABRIEL*. MoRDAKAT ...I.L.Rep.
1 CaL 148. 1
WILL— amid.
1. Executors — Residuary Estate — Ex-
press Trustee.} If a testator appoints persona
to be his executors or trustees, and directs them
to do certain acts which can only be done by the
owners of his residuary estate, the trustees will
take such estate, although there be no express
devise to them. Treepoorasoondery Dobsee
o. Debendronath Tagore, Pontifex, J...I. L,
Rep. 2 Cal. 45, 1876.
S. C. under Act XXVII. of I860,
§ 2 ; Certificate to collect
Debt*. 2 ; and Limitation. 63-
8. , Construction of— Absolute Gift-} If
a testator leaves a legacy absolutely as regards
his estate, but restricts the mode of the legatee's
enjoyment to secure certain objects for the bene-
fit of the legatee, upon failure of such objects
the absolute gift prevails. Where, therefore, a
gave certain legacies to each of his
grandsons and granddaughters, but directed that
his trustees should hold the same in trust to
: the legacies to the grandsons, and during
linority of the grandsons to apply the in-
for the benefit of the grandsons, and after
the grandsons attained twenty-one to pay them
ne arising from the investments, and
alter the death of the grandsons to pay the said
j the wife who might survive him, for
her life, and after the death of both to transfer
the capital to such child or children of such
grandson, as being a son or sons should attain
the age of twenty-one, or being a daughter or
daughters should attain that age or marry, in
equal shares as tenants in common, for the
absolute use and benefit of such child or children
espectively, and where the testator especially
provided as to the legacy left to one grandson
the happening of certain events it
should be paid to his other grandchildren : —
Held, that the gifts to the grandsons were ah-
solute, and that the subsequent provisions were
simply a qualification of the gifts for the benefit
of the legatees, and that, therefore, on the death
of the grandsons unmarried, his legal re-
presentative-was entitled to the legacy left to
Lassence v. Tiernay (t M. & G. 551) and Kd.
lett v. Kellett (L. Rep. 3 H. L. 160) followed.
The Administrator General of Bengal 0.
Apcas. Pontifex, J L L. Rep. 3 CaL 668,
D.gmzed by G00gle
DIGEST OF CASES.
"WILL -contd.
3. Devise of Immoveable Property subject
to its being charged in a Particular Way — Pro-
perty not charged as directed — Suit to enfc
Charge — Assignment by Legatee of Legacy
to Executor.} y., by his will dated the
ifith of February 1864, devised his e
known as the Ellenborougb Hotel Estate
to the use of his son X- on condition that
he should, when requested by the trustee of
the will, execute a mortgage of such estate
to the trustee for the payment of the sum of
Rs. 16,000 bequeathed in the wilt to the trustee
on certain trusts therein mentioned. X. H.
appointed executor of the will, and V. and the
Administrator General of Bengal were appointed
trustees of it. By a subsequent codicil, dated
24th February 1865, the testator revoked the
appointment of V. and the Administrator General
of Bengal as trustees, and appointed the Official
Trustee of Bengal as the sole trustee, and ap-
pointed V. to be an executor. He also gave to
his daughter C, the wife of H., the sui
Rs, 13,000 to be paid to her out of the su
Rs. 16,000 charged on the Ellenborough Hotel
On the and of March 1866, ff. executed a
mortgage of the Ellenborough Hotel Estate to
// and V. to secure the payment of the sum of
Rs. 16,000, with the intention of giving effect to
the condition imposed upon him by the will.
On the aolb of July 1870, C„ assigned by sale
to V. the sum of Rs. 12,000 bequeathed to her,
for a consideration of Rs. S,ooo by a deed which
contained a power of attorney authorizing V. to
sue for the legacy. On the nth of February
1873, V. sued X. to enforce the mortgage of the
2nd March 1866, and the co-executor H. was
subsequently made a co-plaintiff. The Court of
first instance dismissed the suit on the ground
that the plaintiff was not suing as an executor
for the benefit of the estate, but to enforce the
assignment of C.'s legacy, which was invalid.
On appeal :—
Held, that the mortgage deed which formed
the basis oF the suit was invalid, not being in
conformance with the terms of the will and
codicil, and conveyed no right to the property to
the plaintiff, whose suit was not maintainable.
Per Stuart, C.J. — Semite, that an assignment
oE a legacy by a legatee to an executor is in-
valid. Vaughan «. Hesbltinb. Stuart, C.J.,
and Otdfietd,] I. L. Rep. 1 All.
7S3, 1878.
WIH -contd.
See also on this latter point Hurst v. Mtix-
soorie Bant (Ibid. 762, p. 766), where Stuart,
C.J., says, with reference to the transaction
between C. and V. above stated—" This, as
remarked by me in the previous suit, was a. very
improper transaction on Mr. Vaugban's part,
and it might have been set aside if she (C.) had
been so minded."
4. Gift of Residue to a Class— Postpone-
ment of Period of Distribution— Vesting —Act
X. 0/1865, H 98, mi, 102.— A testator gave the
residue of his real and personal estate to trus-
tees upon trust to invest the same, and " to pay,
transfer, or divide the same unto or among the
children of my brothers A. and B. respectively,
to be paid, transferred to, and divided among
them in the proportions and at the times here-
inafter mentioned; that is to say, the share of
each and every son of my two brothers shall be
double that of each and every daughter, and
the shares of each son shall be paid to him
or them respectively upon his or their attaining
the age of twenty. one years, and the share of
each daughter to be paid to her or them on
her or their respectively attaining that age or
previously marrying, with benefit of survivor-
ship between and among all the said sons and
daughters." The testator left surviving him
two brothers A. and B. and a sister C. A. and
B. both died before the eldest of the testator's
nephews or nieces attained twenty-one or mar-
ried. In a suit instituted by the widow and
executrix of A. to have it declared that the
bequest of the residue of the estate to the
children of the brothers of the testator was void
invalid under $ f 101 and I02of the Indian
Succession Act (X. of 1865), and that she, as
jtrix of A., was entitled to receive a one-
third share of the said estate and the accumula-
tions thereon ; — Held, that the children of A. and
7. took vested interests at birth on the death
if the testator; that the period of distribution
lone was postponed, and that the gifts were
Semble— 4 9* of Act X. of 1 865 applies only
vested interests. Sham v.Hobbs (3 Drew.
93) distinguished. Maseyk u. Fekgussok.
Pontifex, J L L. Kep. 4 Cal. 804, 1878.
S. Gift to a Class— Postponement of
Period of Distribution— Lapsed Bequest -Double
Portions— Act X. of 1865, § 98.] A testator
gave his residuary estate to trustees upon trust
oogle
DIGEST OF CASES.
WIXiXi— contd.
to invest and " to pay, transfer, or divide the
same unto, between, or among the children
my brothers A. and B. respectively, to be p:
transferred to, and divided among them in
proportions and at the times hereinafter m
tioned ; that is to say, the share of each and
every son of my said two brothers shall be
double that of each and every daughti
the shares of each son shall be paid to
them respectively upon his or their attaining
the age of twenty-one years, and the shares of
each daughter to be paid to her or the
respectively attaining that age, or previously
marrying, with benefit of survivorship betweei
and among all the said sons and daughters, :
After the testator's death, and before the perioc
of distribution arrived, a son was born to B.
and one of the sons of A. died intestate and
unmarried :-
Held, 1st, the intention of j gS of the Indl
Succession Act (X. of 1865) was to assimil;
the law in India to that which exists in Englar
and that any child of the testator's brothers w
was born before the period of distribution v
entitled to participate as a member of the cla
and that the period of distribution in this g
was the date when any nephew or niece should
attain the age of majority within the
of the Succession Act, or when any niece should
marry, whichever event should first happen.
The after-born son of B., therefore, was entitled
to a nephew's share, or double portion.
Held, also, that though the testator probably
had the same intention in regard to tr
tionate amounts to be taken in the accruing and
original shares, yet this was not so clear ai
amount to what the law considered a neces:
implication that the testator intended the
-crued share to be enjoyed by his nephews
nieces in equal proportions, and, therefore,
share of the deceased son of A. was divisible
among the surviving male and female children
in equal proportions. Masbyk ». Feroussoh.
fontifex,} I. L.Rep-4CaL670, 1878.
6. Construction — Precatory Trust.]
W. J?., by his will, left to his wife, M. A. A?., the
whole of his property, including certain bank
shares, "feeling confident that she would act
justly to their children in dividing the same
when no longer required by her." M. A. R., by
her will, gave certain property to each of her
children, giving the plaintiff, amongst other
I WILL- - contd,
property, the bank shares. These shares were
attached in execution of a decree against the
executors of M. A R., as belonging to her
Held, that the words of her husband's will
created a trust in M. A. R. for the benefit of her
children, and limited he'r own estate in the
property to a mere life interest, or to the income
of the property so long as she might require it ;
and that she was a trustee with a power of ap-
pointment over the whole property comprised
in the will in favour of the children, and that the
shares, therefore, belonged to the plaintiff, and
could not be sold in execution of the decree as
part of the estate of M. A. R. Raynor v. Ths
Mussoorle Bank. Sluart,C.].,and Pearson, J...
I. L. Rep. 2 All. 53, 1878.
' Reversed on Appeal.— L. B. 0. I. A. 70 ;
L. a. 7 App. Ca. 321.
7. Charitable Bequests — Void Bequests—
Uncertainty—" Surplus"— General Residuary Be-
quest.} A testator by his will directed as
follows : — " I do hereby direct my trustee to feed
the really needy and poor at Gopeenathjee out
eparate expense out of my estate to be
buted to the worship of Luckeejonardunjee,
my ancestral goddess. I do direct my trustee
spend suitable sums for the annual Sradhs or
niversaries of my father, mother, and grand-
father, as well as of myself after my demise, for
the performance of the ceremonies and the feed-
ng of the Brahmins and the poor; to spend
suitable sums for the annual contributions and
gifts to the Brahmins, Pundits holding tolls for
learning in the country at the time of the Doorga
:o spend suitable sums for the perusal
of Mokabharat and Pooran and for the prayer of
God during the month of Kartick. Should
be any surplus after the above expenditure,
then I do hereby direct my trustee to spend the
lus in the contribution towards the
marriage of the daughters of the poor in my
and of the poor Brahmins, and towards the
education of the sons of the poor amongst my
:lass, and of the poor Brahmins and other res-
pectable castes, as my trustee will think fit to
comply."
Held, on appeal, affirming the decision of the
Court below, that the concluding words of the
bove clause in the will, commencing " should
here be any surplus after expenditure," Ac.,
nust be construed as creating a general residu-
bv Google
DIGEST OF CASES.
WILL-
OW.
ary bequest, which would absorb the whole of
the property, even assuming that some of the
preceding bequests were invalid.
Quart, whether the bequests to Pundits hold-
ing tolls, and for reading the Afokabkarat and Fee-
ram and for prayer to God, were valid. DwaR-
KAHATH BVSACK V BljRRODA PeRSAUD BvSACK.
Gartk, C.J., and Sfarkby, J..X L. B*P- 4 CaL
448; 1 Cal. Rap. 668, 1678.
8. Paver of Appointment — Execution
of Poner.) A testator, after giving certain
specific bequests, dispow! of his property as
"After payment of the above bequests and
charges of administration, I request that the
interest of my properly, invested in Governmen'
securities, be disposed of from time to time a:
follows : — First — To my dear son G. two shares
to my two dear daughters, E. and C, each one
share ; the interest to be paid to them quarterly
or half-yearly as may be most conveniei
Second — I request that these shares shall not
transferable during their life-time. Third— At
the demise of any of my children without issue
any such share to be divided in the above pro-
portion to the survivors. Fourth— In the event
of issue, they may bequeath their share to any
one of their children they may select, subject
to the above conditions." C, in May 1874.
married, and by a settlement made in consider-
ation of the marriage her share was assumed to
be assigned to trustees upon certain trusts. In
1875, C. and her husband made the following
joint will :— " We do hereby constitute the sur-
vivor of us to be executor or executrix in our
estate, and sole heir of the same, together with
the child or children begotten in our marriage,
C. died soon after the execution of the abov
will, leaving one child. In a suit by C.'s husband
and the trustees of the settlement of 1874 for
administration of the testator's estate and the
construction of his will : —
Held, that the settlement of 1S74 coulc
operate on C.'s share, in consequence of the
direction of the testator that it should tic
transferred in the lifetime of C, who had nothing
to settle under her father's will, and that th<
plaintiffs consequently took nothing under thi
settlement.
Held, also, that the joint will was not an exe
Cution of the power of appointment given by the
testator's will, for even if it referred to the powei
WILL-- conld.
the fund, it would have been an appoint-
ment embracing objects not designated by the
power. A construction which will give the share
of a child on his death to his children should be
favoured, and a slight indication of inch inten-
tion should be sufficient for the purpose of giving
the fund to the issue of the deceased child who
time enjoyed it ; and the corpta, there-
fore, of the fund, of which the interest was paid
to C. during her life, devolved at her death on
her only child. FehrSen s. Simpson. Brougk-
J I. L. Rep. 4 Cal. 614.
9. Vested Interest— Divesting— .Execu-
tory Trust.'] H. died leaving a will which
contained the following bequest : — " I bequeath
to my daughter A- H., on her attaining
her eighteenth year, the sum of Company's
Rs. to.ooo, with any interest that may have
accrued thereon ; if she marries, to be settled
on herself and children solely; should she die
unmarried, her money to be equally divided
between her brothers; and if either of them
dies, the whole of deceased's money to go to
the survivor."
A. H., after attaining her eighteenth year, and
being still unmarried, claimed to be entitled to
the legacy absolutely, and to have the principal
and arrears of interest paid to her.
Held, that A. H. took a vested interest in the
legacy, subject to be divested upon her dying at
any time unmarried, and further subject to an
executory trust in favour of the children in the
event of her marrying at any time, and conse-
quently that she was not entitled to have the
capital of the legacy paid to her. In the matter
of the Will of C. M. Hunter. White, J..X
L.Bep.4 Cal. 420, 1878.
10. Devise on Condition of Residence.]
Where a devise is to determine on the devisee
ceasing to use a certain house as his residence,
and no manner or period otresidence is prescrib-
ed, exclusive residence is not supposed to be
meant 1 the occasional use of the house, and
keeping an establishment in it with the intention
of again using it as a residence, is a sufficient
compliance with the condition.
Question raised as to what is a sufficient com-
pliance with the condition of using a Boitohhan*
house as a residence.
The condition as to cesser does not arise in
consequence of the devisee not using the bouse
dm by Google
DIGEST OF CASES.
WHtL—etntd.
in any sense as bis residence for (out years after
the testator's death, where the delay can be
justified by the pendency of a suit to defeat his
title, and by his inability to obtain possession of
the whole of the house from the trustees, and by
the unlit state of the house for residence, owing
to want of repairs, which were in progress.
Ganswdro Mohun Tagose i. Rajah Jutthn-
dko Mohun Tagore...L. Rep. 1 I. A. 387;
14 Ben. L. B. 60 ; 22 W. B. 377, 1874-
11. — Gift to Charify which has ceased to
exist— Application o/Cy-Pri* Doctrine nhen the
Residuary Bequest is also to a Charity — Scheme,
Right of Residuary Legatee to question.] C. M.,
a Frenchman, by an English will, dated the ist
of January 1801, bequeathed his property, valued
by himself at upwards of thirty lakhs, partly to
individual legatees, more largely to various
charitable objects, the most prominent being
certain establishments at Lucknow, Calcutta,
and Lyons. His estate was administered, and
various questions under his will disposed of in
several suits instituted Cor those purposes in the
Supreme Court of Calcutta. Among the charit-
able bequests were the three following legacies : —
tst, by the 28th Clause, the annual sums of Rs.
5,000 and Rs. 1,000 to be applied respectively
to the discharge and relief of poor debtors
detained in prison in Calcutta ; 2nd1y, by the
25th Clause, the annual sum of Rs. 4,000 to be
paid to the Magistrates of Lyons to liberate
poor prisoners detained for debt in Lyons.
This fund was, before 1832, fully paid over to
the Mayor and Commonalty of Lyons. 3rdly,
by the 33rd Clause, the annual sum of Rs. 4,000
to be paid to liberate poor prisoners at Lucknow,
but with a direction that " if none, that sum
is to remain to the estate." This gift was, by a
decree of the Supreme Court in 1832, declared
to be void, and the residuary estate was increased
by the amount which would have been required
to satisfy it.
Aschemewas settled in 1802 for the administra-
tion of the charities for the release and relief of
poor prisoners in Calcutta comprised in the first-
mentioned legacy, and funds to satisfy the
same were, by orders of the Supreme Court,
transferred to the credit of two separate ac-
counts for those several purposes. The income
of those funds in excess of what was required
for poor prisoners at Calcutta accumulated ; and
in August 1865 had amounted to Rs. 3,51,000.
97
WILL— contd.
The residuary clause of the will (the 33rd)
directed that " after the several payments of
gift and others, as also the several establish-
ments, if a surplus of ten lakhs remains, that
above surplus is to be divided in such a man-
ner as to increase the three establishments."
On a petition by the Advocate General, without
citing the appellant, the High Court, on the 3rd
of August 1865, made an order (confirmed by
another order of the 2nd of March 1866) under
which a sum of Rs. 1,50,000 was reserved in an
account for the release and relief of poor
prisoners at Calcutta, as above, the income to
be applied on the cy-pris principle " in lieu and
supersession of the former scheme"; and the
residue of the said accumulations was divided
between the Calcutta and the Lucknow Marti- .
nie"re establishments. On a petition by the
appellant to the (High Court, dated the 21st
of June 1873, praying that it might be declared
that the said gilts of Rs. 5,000 and Rs. 1,000
annually for the release and relief of poor
prisoners at Calcutta had failed ; that the said
accumulations formed part of the residue of the
testator's estate; and that the petitioner, as a
residuary legatee, was entitled to a share there-
of ; the High Court refused the petition, holding
" that the said charitable gift was an absolute
charitable gift capable of being applied cy-pris ;
and that the petiti
e of the r.
legatees under the will was not entitled to any of
the funds appropriated to that gift" j-
It cannot be laid down as a general principle
that the cy-pris doctrine is invariably displaced
where the residuary bequest is to charity, what-
ever its kind and nature may be. The principle
on which the doctrine rests appears to be, that
the Court treats charity in tbe abstract as the sub-
.nce of the gift, and the particular disposition,
the mode, so that in the eye of the Court the
gift, notwithstanding the particular disposition
may not be capable of execution, subsists as a
legacy which never fails and cannot lapse. Cases
may easily be supposed where the charitable ub.
:tof.the residuary clause is so limited in its scope,
requires so small an amount to satisfy it, that
it would be absurd to allow a large fund be-
queathed to a particular charity to fall into it.
And though the charitable establishments men-
tioned in the residuary bequest were of a com pre-
nHt Google
DIGEST OF CASES.
WILL— eontd.
hen lire character, as well as prominent objects of
the testator's bounty, and though, looking at the
whole will, it was probable that the testator
would have wished those establishments to have
the benefit of all lapsed funds, yet, there being
no express or implied gift over to them in the
will, this conjecture of intention could not ex-
clude the doctrine of cy^pria, in considering
the applicability of which, the Court looks only
to the particular gift, and if it finds charity to
to be the legatee, sustains the legacy as such,
without regarding at this stage of the inquiry
(whatever may be proper when a scheme com
to be framed) the rest of the will. The jurisdi
tion at the Court to act on the ey-prts doctrii
upon the failure of a specific charitable bequest
arises whether the residue be given to a
charity or not, unlesss upon the construction oi
the will a direction can be implied that the be-
quest, if it fails, should go to the residue. Such a
direction could not be implied from the terms of
the above legacies to poor prisoners in Calcutta
and Lyons, especially when compared with the
corresponding gift to the prisoners at Lucknow,
nor could it be inferred from the* residuary clause
which in terms disposed of such residi
left after providing for such legacies.
Strictly speaking, it was not com
the appellant under his present petition, which
was confined to the claim of a share of the
residue as residuary legatee, to open the
scheme, but the High Court having, with a view
to prevent further litigation and expense, ex-
pressed an opinion that if it was proper to
reform the scheme at all, it .might be right to
confine it to charitable objects in Calcutta ex
eluding both Lucknow and Lyons, their Lord'
ships, agreeing with what was said in the House
of Lords, in the case of The Ironmongers' Com-
pany, as to the care and circumspection to be
exercised by the Appellate Court in substituting
its discretion for that of the Court below, woi
be reluctant in any case to interfere with
scheme unless it weie plainly wtnng, and still
more to unsettle by a premature declaration
one which was not regularly before them ; and
bearing in mind the opinions expressed in the
House of Lords in the above case, that whilst
regard may be had to the other objects' of the
testator's bounty, in construing a scheme, pri
WILL— ctrntd-
scheme was necessarily bad because no part of
the fund had been appropriated to the Lyons
charity, as the gift to the poor prisoners is
Calcutta might well be considered to have a
local character, and a scheme properly framed
for the benefit of other poor persons in Calcutta
be supported, as being cy-pris to the original
purpose. Mayor of Lyons b. Advocati
General of Bengal L, Sap. 8 L A. 38 ;
I. L. Bep. 1 0*1. 808 ; L. Bep. 1 App.
Cft.91.
WILLA— Mahomedan Law— Heritable Rights
of Slave Emancipator.
&r Act V. of 1848,
SavadMir Ujml'dinKhjpii, Zia.
Ul-Nissa Began... L. Rep.
0 L A. 187 ; L L. Bap- 3
Bom. 499).
WINDING UP,
See the Cases under Company —
Winding up.
WINDOWS— Ancient— Obstruction of.
See the Cases under Light and Ail.
See Mandatory Injunction.
Jahihadas v. Atharak I> L
Bep. 2 Bom. 133.
WITHDRAWAL OF COMPLAINT.
See Criminal Procedure Code-, Act
X. of 1873, | 810.
In r, Mvse A0AU...1. L.Bep.8
isideration i
e given
i the gift
which has failed, and to a search for objects aki
to it, their Lotdships refused to declare that the
WITHDRAWAL OF PROSECUTION.
See Compounding Offence*.
WITHDRAWAL OF SUIT— With Le»«
to institute Fresh Suit— Omission to sw
for Part of Claim.
See Civil Procedure Code, Act TTHt
of 1869, §7. 9.
Ilahi Baksh p. IMAM Baksh...
LL-BeplAlLSa*-
WITHBSS-Judge.
See Evidence, SS.
Empress u. Donnelly *■*
Rep.SC-A*0*-
a*DiBqttalif7ingIntereetofJnde*
Rbo. v. Bholanath SSN..X L.
Bop. SOL J*
boozed by Google
DIGEST OF CASES.
WITNESS— amid,
• Right of — to appear by Counsel.
See Bight of WitnfiBH to appear by
Counsel.
Nuksev Kessowjfe ...I. L. Rep.
8 Bom. 370.
"WITNESSES FOB PROSECUTION —
Right of Accused to recall and cross-
Ac Practice— Criminal. 1.
Empress o. Baldeo Sahai...L L.
Rep. 3 All. 263.
Examination of all — Necessaiy before
Magistrate can discharge Accused.
See Criminal Procedure Code, Act
X. of 1872, §215,1. 2,
Empress v. Hematulla I- L.
Rep. S Cal. 889.
Empress v. Kashi L L. Bop.
2 AIL 447.
WORDS— "After Two Country Voyages."
See Contract. 10.
Fleming V.KOBGLER....I. L. Rep.
4 Oal. 887.
— — " Last Preceding Application."
See Civil Procedure 'Code, Act X.
of 1877, |380. 1.
RamKishenv. Sedhu I. L.
Bep. 2. All. 375.
"In Good Faith."
See the Cases under Act XVLLL Of
1860.
See Hindu Law— Will. 10.
MaHIKLAL «. M ANCHABSHA...X. II.
Bep. 1 Bom. 289.
" Material Error."
See Criminal Procedure Code, Act
Z. of 1872, jf 384 and 287.
JUGUTCHUNDER CHUCKEBBUTTY...
1. 1* Bep. 3 CaL 110.
—'•May"— "Must."
Sec Const* notion of Statute. 1.
Delhi and London Bank v. Or-
chard... L. Rep. 4 1. A. 127;
L L. Bep. 8 Cal. 47.
— "Trustfor any Specific Purpose."
See Executor— Estate of. S.
Lallubhai v. Mahkuvarbai
I. L. Rep. 2 Bom. 888.
See Limitation. 30. 37. 88. 88a.
61.
"Vested in Trust."
See Hindu Law— Will. 10.
Maniklal b. Mancharsha.,.1. L.
Bep. 1 Bom. 309
— — " Where (here has been an Appeal."
See Limitation. 87.
Sheo Prasad o. Ansudh Singh.
I. L. Bep. 2 All. 278.
WORSHIP OP IDOL— Right of Exclusive—
Right to Tum of — Limitation Act IX. of
1871, Sched. II., Arts. 118, 131.
See Bight to Worship of Idol.
Eshan Chunder o, Monkohjni...
I. L. Bep. 4 Cal. 888.
Right to Turn of.
See Bight to Sue. 0.
Dbbendronath v. Odit Churn...
L L. Rep. 3 Cal. 390.
WORSHIPPER OF IDOL— Right of — to
sue in respect of Breach of Trust of Idol's
Property.
See Bigfit to Sue. 10.
Radhabaih. Chtmnaji L L.
Rep. 3 Bom. 37.
WRIT OF FIERI FACIAS— Sale of Mort-
gagor's Interest under — obtained by Mort-
gagee—Right of Purchaser.
See Mortgage, 8.
TUKARAH V. RAMCHANDRA...L L.
Bep. 1 Bom. 814.
See Bheriff h Sale. 8.
Bhuggobutty d. Shamachurn...
I. L. Rep. 1 Cal. 337.
WRIT OF FIERI FACIAS, SALE BT
SHERIFF UNDER— Right of Pur-
chaser at — to recover Purchase Money on
Eviction on Sale being declared Void.
See Sheriff's Sale. 1. 2.
Dokab Ally Khan e. Khajah
Mohebooddebn...,L L. Rep,
1 CaL 55; LL.Bep.8 0aL
806 i L. Bep. S I. A. 110.
WRIT OF HABEAS COBFUS— Affidavits-
Right to use, on Return to.
See Privilege from Arrest.
Omriiolall Dev...L L. Bep. I.
- CaL 78.
Diarized by Google
( 1616 )
DIGEST OF CASES.
( 1518 )
WRIT OF HABEAS CORPUS— can**.
— Delay in Applying for.
See Privilege from Arrest.
Ohritolall Dey...I. L. Hep. 1
OaL 78.
Power of High Court on return to— to in-
quire into Validity of Commitment by
Small Cause Court.
See Privilege from Arreat.
Set Small Cause Court — Presidency
Town. 6.
OURITOLALL DsY...I. L. Rep. 1
Cal. 78.
Privilege from Arreat — Decree of Small
Cause Court — Affidavits.
See Privilege from Arrest.
&r Small Came Court— Presidency
Town. 5.
Ohritolall Dey...I. L. Bep. 1
Cal. 78.
WRITTEN STATEMENT— Variance.
Sec Variance between Written
Statement and Proof.
Chova Kara v. Isa bin Khalifa,
L L. Bep. 1 Bom. 908.
WRONGFUL CONVRRBION-Measure of
Damages for.
See Damages. 4.
Bombay Burhah Trading Cor-
poration, Limited v. Mirza
Mahomed Ally... I. L. Bep.
4 Cal. 117.
WRONGFUL DISMISSAL - Suit for Da-
See Vaster and Servant. 1.
MacGillivray v. Jokai Assam
Tea Co.... I. L Bep. 8 Cal.
33.
WRONGFUL DISPOSSESSION OF
LESSEE BY LESSOR— Jurisdiction
of Civil and Revenue Courts.
See Act XVIII. of 1873, § 90, 01. m.
Abdul Aziz o. Wali Khan... I. L.
Bep. 1 All. 888.
WRONGFUL DISTRAINT — Suit to set
Aside.
See Right to Sue. 9.
HoRBONaRAINV, SHOODHAKrI:
to...L L. Bep. 4 Cal. 890.
WBONGFUL POSSESSION— Government
Revenue paid during — Right to recover —
Set-off— Suit for Mesne Profits.
See Right to recover Govern-
ment Revenue paid during
Wrongful Possession.
Tiluck Chand e. Sou da mini
DAsi..XL.Rep.4Cal.r>66.
TAJXAH — Suit against a— by Village Priest.
See Bight to Sue. 13.
DlNAHATH V. SADASHIV L I*.
Rep. 3 Bom. 8.
YEARLY TENANT.
See Rights of Kirasdars.
Fakir Muhammad v. Ttrumala
Chariar...I. L. Rep. I Had.
308.
Set Ejectment. 1.
Ram Rotton v. Netro Kallv...
L L. Bep. 4 Cal- 338.
See Landlord and Tenant. 1,
Raj bn d ron ath o.B assi de r . , .L L.
Bep. 8 Cal 148.
ZANZIBAR- -Offence committed at— by Bri-
tish Subject — Jurisdiction of High Court
at Bombay.
See Offence committed in Foreign
Territory.
Empress ». Dossaji Gulam Hu-
SE1N...I. L. Rep. 8 Bom.
384.
Jurisdiction of the British Consul at—
Registration of British Subjects at Zanmibar—
Stat, 6 and 1 Vict., C. 94— Order in Council of
gth August 1866, Stat. 39 and 40 Vict., C. 46.]
The jurisdiction of the British Consul at Zan-
zibar to hear and determine suits of a civil nature
between British subjects, depends on the ques-
tion whether the cause of action arose within
the dominions of the Sultan of Zanzibar, and
not upon the question whether the British
subjects (between whom such causes of action
arose) were resident within those dominions.
By virtue of the treaty of 1839, British sub.
jects are liable to be sued in the British Con-
sular Court at Zanzibar by Americans as being
subjects of another Christian nation, and by
convention with the Rao of Kutch, made with
the acquiescence of the Sultan of Zanzibar,
natives of Kutch, having been subjected to the
British Consular Courts in the same manner as
if they were British subjects, may be sued by
Americans and others in that Court.
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( "17 )
DIGEST OF CASES.
ZANZIBAR— cenld.
When the British Consul at Zanzibar has
permitted persons, who have not been registered
as under British protection, to bring and con-
tinue suits in his Court, that circumstance must
be accepted as a sufficient indication that they
bare excused to his satisfaction their neglect to
register under Article 30 of the Order in Coun-
cil of gth August 1 866.
Quart— Whether Stat. 39 and 40 Vict., C 46,
deals with the Order in Council of gth August
1S66, except so far as it relates to the stave trade.
Wagji Korji ». Th aria Topan. rVestrofifi, C.J.,
and Melvill, J..X L. Bop. 3 Bom. 58, 1878.
ZEMINT) Alt — DEBT OP— WHETHER
CHABGEABLE OH ZEMINDA-
BY.
See Folliem. 3.
QOLAGAPA CHHTTY V. ARBUTH-
NoT...L.Bep.lLA. 868-
ZEXXNDABI CESSES.
Set Custom. 4.
Lachuan Rai v. Akiar Khan...
1 L. Bep. 1 AIL 440.
ZEMJNDABI CESSES— amid.
Suit for — founded oti Custom not Cogniz-
able by Small Cause Court.
Set Small Cause Court— Mofujuil.
Nanku *. Board of Revbhub...
I. 1. Bep. 1 AIL 444
ZEMTKDARI BENT— Right of Mortgagee
to prevent Sale of Mortgaged Property
for Arrears ot
See Co-Shoror* of Pfttni Taluk.
Mohesh Chunder v. Ram Pur-
sono. LI, Bep. 4 Cal.
See Declaratory Decree. 8.
Akbar Khan «. Sheoratan...
X L. Bep. 1 AIL 878.
Mhbai : FEUrno at ih* sddcatioh sociRTT'a run, arcutiLA.
zedbyGoOgle
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