Practice-continued.

under section 52 of Act VIII (B.C.) of 1869, a
decree was obtained for arrears of rent on the
23rd September 1878. The Court was legally
closed from the 26th September to the 28th
of October, and on the day it opened, the defen-
dant deposited in Court the amount of the decree,
with interest and costs, and asked to have execu-
tion stayed. Held, that the defendant was
entitled, under the above section, to 15 clear days
for making the payment, and that, under the
circumstances, he was entitled to a stay of exe-
cution. HUSSAN ALI D. DONZELLE
239
2.- -Interest, Rate of, not specified in
Decree-Execution.] Where a decree was given
for a certain amount with interest, the rate not
being specified, the High Court considered itself
bound by the authorities to affirm
made by the Court executing the decree, allowing
the Court rate usual at the time of the making of
the decree. MADHUB LAL KHAN v. NOYAN
GHOSE

3.-

...

an order

.

231

Presidency Magistrate's Act-continued.
Right to conduct.] No person, whether Counsel
or Attorney, can claim the right to conduct the
prosecution of any criminal case, under the
Presidency Magistrate's Act, without the sanction
EMPRESS v.
of the Presidency Magistrate.
BUTTO KRISTO DASS

...

374

219

Presumption of Accuracy of Map. See
EVIDENCE ACT (I OF 1872), SECTION 83 519
Previous convictions, Evidence of for what
purpose. See MIS-DIRECTION
Principal and Surety—Surety, Discharge of
Contract Act (IX of 1872)-section 135-Inter
rest, Acceptance of, in advance.] Although as a
general rule the acceptance of interest in advance
by the creditor does operate as a giving of time
to the principal debtor, and consequently as a
discharge of the surety, yet where the surety
knows of and consents to the advance interest
being taken, he will not be discharged from liabi-
lity. Judgment of the High Court, reported in
2 Cal. L. R., 455-P BOTAP CHUNDER DASS v.
GOUR CHUNDER ROY-affirmed. GOUR CHUN
DER ROY v. PROTAP CHUNDER DASS (P. C.) 591

Priority attaching Creditors. See AT-

TACHMENT

-Petition to sue in formâ pauperis-
Court Fee Stamps, Payment of, in order to turn
petition into plaint-Petition to sue in formá
pauperis, whether it may be turned into a plaint
after rejection.] The petitioners, on the 5th
October 1877, applied to the Subordinate Judge
for leave to sue in formá pauperis, but their
application was dismissed on the ground of limi-
tation, the question of pauperism not having been
enquired into. The order dismissing the petition
was subsequently, on an application under section
15 of the Charter, set aside by the High Court, Privy Council Rulings-Hindu Law-Re•
which directed the Subordinate Judge to make cital-Admission-Widow, Enlargement of es-
tate of-Limitation Act, IX of 1871, Sch.
an enquiry as to whether the petitioners were
entitled to sue in forma pauperis. The Subor-II, Art. 129-Adoption.] D, a Hindu, being
dinate Judge made the enquiry, and, on the
17th June 1879, stated that he rejected the
application to sue in formá pauperis, but that
he would give a written judgment. This he did
on the 29th June, but meanwhile, on the 22nd
June, the petitioners offered to pay the Court
Fee Stamps if time were allowed, in order that
their petition might be turned into a plaint, but
their offer was refused on the ground that further
proceedings must be by fresh suit. Held, that
assuming that the petition of 5th May 1877,
which had never been accepted, could be consi-
dered as a subsisting proceeding which might, on
the authority of Skinner's case, 4 C. L. R.,
331, (S.C.) L. R. 6 I. A., 126, be treated as a
plaint filed on the 5th June 1877, it was impera
tive on the petitioners to have not only offered,
but to have been ready to pay the Court Fee
Stamps. RAM SAHAI SINGH v. MANIRAM 223

old and unable to manage the business of his
estate which he held jointly with his brother,
executed a deed whereby he agreed to pay a
manager to take the business off his hands. In
that deed he described his wife, who was
purda nashin lady, as being joined with him as
owner of the estate. Held, that there was no
admission binding upon those claiming under
D, and that the widow's estate was not enlarged
to an absolute estate. The provision in Act IX
of 1871, Sch. II, whereby it is enacted that,
with respect to suits 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
with the right, which but for it a plaintiff has
death of the adoptive father," does not interfere
of bringing a suit to recover possession of real
property within twelve years from the time when
the right accrued. RAJ BAHADOOR SINGH v.
ACHUMBIT LALL

...

...

21

to the

Privy Council Rulings-continued.
Privy Council Rulings—continued.
mortgagor redeeming the estate, to make over the widow should enjoy the entire property
to B in lieu of the village granted other villages for her life without power of alienation,
yielding an equal revenue, and in 1847 confirmed and that, after her death, her minor daughters
the grant, making it rent-free. On A's death should take the self-acquired property, and
the grant made by him was confirmed by his that the claimant should succeed
legitimate son, the appellant, in certain pottahe, ancestral estate. Held, that the daughters
in which, however, no reference was made to the could not under any circumstances, be bound by
provision in the earlier grant by the father for the compromise. The evidence to establish such
the substitution, in the event of the mortgagor a conditional adoption as that alleged, must, as
redeeming, of villages yielding an equal revenue.
in the case of a nuncupative will, be very strong.
After the passing of Act XIII of 1866, the Judgment of the High Court reversed on the
mortgagor obtained a decree for redemption, and facts. IMBIT KONWUR v. ROOP NARAIN
usted B. Held, that the appellant was bound SINGH
... 76
by his father's agreement, in the pottah of 1846, 5
Agent, Termina-
to make over to B villages yielding a revenue
tion of authority of-Notice-Acknowledgment—
equal to that of the village which had been Limitation-Secondary Evidence. H., who had
redeemed. BIJAI BAHADOOR SINGH. BAYRON acted as agent for the defendant in certain money
BUX SONGH
transactions with the plaintiff, having left the
defendant's service subsequently, signed a state-
ment of account with the plaintiff in respect of
such transactions. The plaintiff was aware that
H had quitted the defendant's service, though no
formal notice was given of the fact. In a suit
by the plaintiff upon the account, it was held,
reversing the decision of the High Court, that he
must be taken to have known that I had no
general authority to sign the statement of account
on behalf of the defendant, and that the acknow.
ledgment signed by him could not prevent the
operation of the Statute of Limitations. When
an important document is not produced, and no
explanation is given of its non-production, an
inference not unnaturally arises either that the
letter, if written, does not contain that which it
represented to contain, or that no such letter ever
existed. DINOMOVI DEBL CHOWDHRANI D.
LUCHMIPUT SINGH BAHADUR

3
Limitation Act
(IX of 1871), Sch. 11, Art. 145-Adverse
possession-Judgment-Appeal.] In 1839
utwara was made of an estate which, up to that
time, had been held jointly in the following shares:
-the plaintiff 10 annas, his father 2 annas, and
his brother the remaining 4 annas, and under the
butwara different villages were distributed, each
party taking certain specified villages as his share.
In 1842 the father died, his share having in the
meantime, in some way, become vested in the plain-
tiff. In 1856 execution was issued against the 4
annas share of the plaintiff's brother, who resist-
ed the execution, and in 1858 a suit was insti-
tuted by the judgment-creditor to enforce his
rights, the present plaintiff being joined a defen-
dant with his brother. In this suit it was decided,
in 1860, that the botwara was not binding on the
judgment-creditor, and that he was at liberty to
take a 4 annas share of the rents of all the
villages divided under the butwara, and in 1863
this judgment was, on appeal by the brother,
affirmed. The decree was not executed till
July 1864. In 1873 the plaintiff filed the
present suit to establish his right to receive his
12 annas share. Held, that there was no adverse
possession against the plaintiff until the appeal
in the other suit was dismissed in 1863, and
therefore that the suit was not barred. Per
Curiam.-It cannot be said that the plaintiff
was bound to assert his right in 1860, because
S. (the brother) having appealed against the
decree, there was a possibility of its being reversed
or altered. [Judgment of the High Court

101

Res Judicata-

Order of remand.] In 1814, litigation commene
ed between a zemindar and his tenants by reason
of his having diepossessed them of lands held
under a jote tenure, and decree having been
obtained by the tenants the zemindar assessed
the jote lands at a rent. Subsequently this rent
fell into arrear, and under a decree the jote lands
were in 1836 sold in satisfaction of the arrears
to J, who was put in possession in 1839.
Another suit, which was pending between the
tenants and their mortgagee, in which a ques
tion arose whether these jote lands were included
in the mortgage, was decided in favour of the
mortgagee in 1841. J, the then jote tenant,
was no party to that suit, and continued in
possession of his jote lands. Disputes arose, and
Hindu Law-by an order of the Sudder Court in 1845, the
jote lands were directed to be put in possession
of the mortgagee. In 1856 a suit was brought
by J's representative to set aside that order and
to recover possession of the jote lands. The Privy
Council held that, as J, the jote tenant, was not
a party to the suit under which the decree was
made in 1841, the decree was not binding upon

reversed.] MANWAR ALI v. UNODA PERSHAD
Roy

...

...

...

71

4
Compromise of Suit by widow-Adoption-Evi-
dence.] In a suit in which a claim was made
in virtue of an alleged adoption, to the estate
of a deceased Hindu, the widow made a com-
promise, which was not in writing, with the
claimant, wherein the adoption was admitted,
but alleged to have been on condition that

Privy Council Rulings-continued.
Privy Council Rulings-continued.
him, or those deriving title through him, mothers, treating them with great respect, and
and remanded, the case in order that the issue, he shall regard each of his two younger brothers
whether the land was parcel of the jote or not, as a son, providing for them, and my own
might be tried. Held, that this order of remand servants in a manner befitting their several
was conclusive, that the question of the title conditions in life." In 1871 one of his widows
of the representatives of J. to the jote lands brought an action for maintenance and arrears
could not bo re-opened. [Judgment of the of maintenance. Held, that the maintenance
High Court affirmed.] JUGGODUMBA DASSEE v. was not made a charge upon the estate, and that
TARAKANT BANNERJEE
121 consequently the suit was not barred under Act
XIV of 1859, section 1, sub-section 13 By
7.
Birt tenures-
Act XVI of 1865-Act XIII of 1866-Birteah, common law the right to maintenance is a right
Suit by-Limitation.] A suit by a Birteah in accruing from time to time according to the
wants and exigencies of the person entitled
respect of his tenure is cognizable under Act
XVI of 1865, and Act XIII of 1866, notwith-claim it. NARAYANBAO RAM CHANDBA PANT
v. RAMABAI
standing that he may not have been in posses-
sion in 1855. [Judgment of the Judicial Com-
missioner of Oudh affirmed.] DRIG BIJAI SINGH
v. GOPAUL DUTT PANDAY
146
Law-Im-

Hindu

10.

...

...

162

Hindu Law-
Adoption-Sudra adoption-Ceremonies.] Among
Sudras in Bengal no ceremonies in addition to
the giving and taking of the child are necessary to
constitute a valid adoption. [Judgment of the
INDROMONI CHOW,
High Court affirmed.]
DHBANI v. BEHARI LALL MULLICK...
11.-

183
Cause of Action

8.-
partible Raj, Resumption and Regrant of, by
Government-Divisibility-Sunnud, Construction
of-" Heirs."] In 1783, an impartible raj was
confiscated by the Government on account of the
rebellion of the then zemindar. In the following-Religious Services, Right to perform-Act
year it was restored to the eldest son of the VIII of 1859, section 32.] A suit will lie to
former zemindar as it existed prior to the con- recover a specific pecuniary benefit to which
fiscation. In 1793, the estate was again resumed the plaintiff's declare themselves entitled on
by the Government for arrears of revenue, and condition of performing certain religious services,
in 1802 two new zemindaries were carved out of and if to determine the right to such pecuniary
it, one of which was granted to the second son benefit it becomes necessary to determine in
of the zemindar, who was deprived of possession cidentally the right to perform the religious
in 1783, at a fixed revenue. The sunnud, by services, the Court has jurisdiction to consider
which the grant was created, contained, inter alia, and decide the point. [Judgment of the High
the following clauses :-"You shall be at free Court of Madras reversed.] TIRU KRISHNAMA
liberty to transfer, without the previous consent CHURIAR v. KRISHNA SWAMI TATA CHURIAR 201
of Government or any other authority, to whom.
soever you may think proper, either by gift, sale, 12.
or otherwise your proprietary right in the whole
or in any part of your zemindary

Chur lands-

Independently of the title of
Prescription.]
*Government to lands which have been originally
formed as an island in the bed of a river, pos-
session for three years under an order of a
Magistrate in a proceeding under Act IV of
1840 does not create a title by prescription.
[Judgment of High Court affirmed.]
v. COLLECTOR OF BACKERGUNGE ...

*Continuing to perform the above
stipulations, and to perform the duties of
allegiance to Government, you are hereby autho-
rized and empowered to hold in perpetuity to
your heirs, successors, and assigns, at the perma-
nent assessment herein named." Held (revers
ing the decision of the High Court), that the
word" heirs," in the sunnud must be construed
to mean the heirs of the grantee, according to
the ordinary rules of inheritance of the Hindu
Law, and not a single heir, according to the rule
of primogeniture which formerly obtained in
the zemindary.
BABOO BEER PERTAB SAHEE
v. MOHARAJAH RAJENDER PERTAB SAHEE, 12
Moore's I. A., 1 distinguished. VENKATA
NARASIMHA APPA Row v. NARAYYA APPA
Row

13.-

WISE

249

Mortgage-

Account, Contract by mortgagee to be relieved
from obligation to-Regulation XXXIV of 1803,
sections 9 and 10.] In a mortgage executed in
1852 while Regulation XXXIV of 1803 was in
force, the mortgagor contracted that he should
not have any right or claim to an account of
mesne profits during the time of the mortgagee's
possession. Held, that the contract was binding,
notwithstanding the provisions of sections 9 and
10 of that Regulation imposing an obligation on
the mortgagee to account. BUDRI PARSAD
v. MURLIDHUR

14.-

...

257
Hindu Law-

Widow's Estate, Forfeiture cf-Unchastity during
widowhood.] Under Hindu Law, as administered

Res-judicata-Civil Procedure Code (Act X
of 1877), section 13, Explanation V-Easements,
VII of 1822, Records made suit brought by him to establish a right to close
Claims to.] A decree obtained by A. in a
a passage, over which an easement by prescrip-
tion was claimed by the defendant in respect
of his own house, is no bar, on the ground of res
judicata, to a suit against A by a third person

under. See EVIDENCE ACT, I OF 1872,
SECTIONS 35, 48 and 49
593