erroneously in ordering it to be cancelled previous to making
the inquiry directed, and that the order for cancelment and
re-sale, which he was incompetent under the circumstances to
pass, did not invalidate the original sale; there being no other
valid objection to it,

3. Certain persons, against whom a summary decree for rent had
passed, are not relieved from the effect of that decree, because
on one occasion exccution had been withdrawn on a third party's
volunteering payment.

Interest, however, on the decreed arrear is allowed only from the
date of renewed demand, that is, the institution of this suit,
4. This suit was preferred by a judgment creditor to bring to
sale certain property as belonging to his debtor, which, by
previous miscellaneous proceedings, had been released from

attachment.

Held that, as the action was not brought within 12 years of the
date of the miscellaneous order of the lower appellate court,
the mere presentation of a petition of special appeal to the
Sudder Court, which was rejected, did not entitle plaintiff to
the benefit of the period during which that petition was pending
in the Sudder Court, and the suit is barred by the law of
limitation,

5. Execution of decree allowed, as the present application was
within 12 years of the date of the last process in execution,
6. A obtained decree against B. B's heir C paid A's heir Da
sum towards liquidation, which D used, but did not put it to
credit of the decree, and C sued to recover it. The court of
first instance rightly directed such credit to be made. The
judge, in reversal of that order, directed its absolute refund.
Judge's order reversed,

...

7. In execution of a decree, certain property was attached as
belonging to the judgment-debtor; and a claim to possession
being set up by the daughter of the debtor, on the ground of
purchase from her mother, the zillah judge released the pro-
perty.

Held that, as the judge confined his attention to the question of
possession, but omitted to try whether as between mother and
daughter the sale did occur as represented by the vendee, the
case should be remanded for that purpose,

8. An objection taken to the mode of execution of a decree, as
contrary to the decree, should be made in the court in which
execution is taken out, subject to appeal,

9. A obtained possession of lands under an Act IV. decree.
B obtained reversal of it in the civil court, against whose judg
ment A preferred an appeal. During pendency of this appeal,
B cannot stay the Act IV. decree, or restrain A's rights in
possession, but by execution of the civil decree,

337

533

537

631

675

1462

1484

1551

10. Objections to sale, allowed by the lower courts, disallowed
in appeal, as having been preferred beyond time.

Sale of judgment debtor's rights and interests in the property
directed,

1599

FORECLOSURE.

See Mortgage, Foreclosure of.

FRAUD.

1. In a suit to set aside the sale of a half share of a village made
by ancestor of plaintiffs, as well as to declare the mortgage of
the entire village redeemed, it was held on special appeal that,
as the plaintiffs admitted the execution of the deed of sale and
grounded their claim on the declaration that the transaction was
nominal and done in fraud of creditors, the aid of the court
could not be given to plaintiffs, and the suit, so far as it relates
to the sale of the half share of the village, must be dismissed, ...
2. T. sued J. and R. for restitution of lands sold at the instance
of R. and purchased by R. in the name of J.; the averment
being, that R. had fraudulently procured the sale of the lands
through certain executors in execution of a judgment bond in
the Supreme Court, the whole debt secured by the judgment-
bond having been already realised.

The Court held that the averment of fraud was not proved, as the
original debt secured by judgment-bond had been paid off by R.
with the acquiescence of the debtors; and R. denying that such
debt had been paid to him, his suing out execution of judgment-
bond by the executors, in whose hands it was, was no fraud.
The absence of fraud therefore relieved the Court from trying
any question of benamee purchase, as such transactions are not
necessarily invalid,

3. Sale of a decree set aside as fictitious, the plaintiff having
given as much proof as could be expected from her of its
fraudulent character, while the conduct of defendant only con-
firmed this view of it,

...

4. Suit to set aside, on the ground of fraud, a deed of gift set
up for the purpose of avoiding realisation of a decree held by
plaintiffs The judgment of the lower court in favor of plaintiff
is upon the evidence affirmed,

5. Plaintiff sues for possession of a share of an estate mortgaged
to him on the 12th Magh 1260 B. E., corresponding with the
24th January 1854, by the defendant, Kasheechunder Mookerjee,
and for the cancelment of a fraudulent deed of sale alleged by
the defendant, Gourmonee Debea, to have been executed in her
favor on the 26th Poos 1269, corresponding with the 8th Janu-
ary 1854, that is, 16 days previous to plaintiff's mortgage, by
the same party.

The defendant, Gourmonee Debea, denies the genuineness of plain-
tiff's deed of conditional sale, and asserts the authenticity and
genuineness of her own.

Held that this case is one of those in which it would be unreason-
able to expect from the plaintiff full and complete evidence of
the fraud charged by him, and in which the plaintiff is only
required to give as much evidence as, under the circnmstances,
may be possible, provided that it be such as raises a prima facie
presumption of fraud, and would entitle him to a decree were it
not satisfactorily rebutted by the other side.

I

767

1210

1606

1795

Held also that, from various facts proved in evidence, a very
strong prima facie presumption of the bad faith of the transaction
between the defendants, Kaseechunder Mookerjee and Gourmonee
Debea, has heen raised, which presumption the evidence pro-
duced by the defendant has not only not rebutted, but has in
fact strengthened.

The decision of the lower court affirmed, with costs,

Messrs. Snadden and Co. instituted a suit against Messrs. Crisp
and Co., of Rangoon and Moulmein, for damages arising out of a
breach of contract entered into with them, for the carriage of 150
tons of timber to Calcutta, on board the barque Amelia, at a
certain rate of freight.

Held that the rules of law as to the measure of damages in such
cases are: first, that in those cases in which it is pleaded and
proved that the freighter could not procure any other ship for
the conveyance of his goods, the measure of damages is the differ-
ence of the value of the article to be carried at the place of ship-
ment and the place of delivery, with a deduction for freight and
incidental charges; and secondly, that in those cases in which it
is pleaded and proved that another ship might have been found by
the use of ordinary diligence for carrying the goods, the measure
of damages will be merely the difference between the freight or
price of carriage agreed on with the carrier, and the sum (if
greater) which the party has been obliged to pay to others.
Held also that as, in the present case, defendants, in answer to
plaintiffs' allegation that another vessel was not available, did not
disprove that allegation, the assertion of plaintiff's must be con-
sidered to have been admitted; the commissioner, therefore, in
having assessed the damages in plaintiffs' favour at the differ-
ence between the market value of the timber at Moulmein, freight
and incidental expense deducted, and the value which the timber
might have realised in Calcutta had it been delivered there, has
acted quite correctly and in accordance with the law as laid
down by the Court.

The special appeal dismissed, with costs,
GHATWALEE TENURES.

1. Held that the whole of pergunnah Chatna was included in the
permanent settlement, and that the ghatwalee tenures were
also comprised in the settlement as part of that pergunnah.
Held by a majority of the Court that the ghatwalee tenures,
though forming part of the zemindaree of pergunnah Chatna,
are liable to an obligation of service, and consequently, so long
as Government requires the services of the ghatwals, the zemin-
dar is not competent to resume the ghatwalee lands; and at the
same time the Government cannot resume the lands, but, if the
services of the ghatwals be no longer required, the lands will
lapse to the zemindar.

1906

905

Held by a majority of the Court that the villages now in suit are
altogether ghatwalee, and that the zemindar is not entitled to
resume them so long as the Government requires the services
of the ghatwals.

Appeal dismissed, with costs,

2. Plaintiff sued defendants for khas possession of lands compris
ed in certain villages, alleging that defendants' ghatwalee
tenure originally consisted of becgas 244, for which rupees 45
rent was payable, but that they now hold beegas 1691 of land
in excess of their tenure and refuse to pay rent for the same.
Defendants admit the statement as to the original size of their
ghatwalee tenure, but plead that, as they have held possession
of the excess for a long series of years and have paid no rent
either to zemindars or putneedars, they are still entitled to hold
them independent of the zemindar or putneedar, and plaintiff's
suit is barred by the statute of limitations.

The lower court dismissed plaintiff's claim as barred by the statute
of limitations.

Held, that a ghatwal, who has been permitted to extend his
holding by adding field to field and beega to beega, can acquire
no greater right in those lands so added than any other tenant,
who, by the same process, increases his holding beyond the
extent of the lands for which he has entered into engagements,
and consequently, .when the proprietor of the estate sues to
assert his proprietary rights, no plea of limitation can be raised
on the ground that the tenant's possession has been an adverse
possession to the landlord.

Case remanded for investigation on the merits,

GUARANTEE.

See Sale, Private, No. 8.

GUARDIAN.

See Attachment.

HINDOO LAW.

Adoption.

1. A Hindoo father, before the birth of a son, empowered his wife
to adopt a son.
On the subsequent birth of a son, he again, to
provide against the contingency of the child's death, renewed
power to his wife to adopt a son.

the

The son of his body, having lived and survived his father, succeed-
ed to the possession of his estate; and a son alleged to have been
adopted by his widow, and now in possession of the property, is
sued for it by appellant, the alleged adopted son, of the grand-
father's widow, on the ground that the power to her from her
husband preclude their son's widow from adopting a son.
Held by a majority of the Court that the power of adoption set up
by appellant as granted to his mother was conditional; that the
conditions conteinplated had not occurred; and therefore that
the deed by its terms did not supersede the legal right of the
natural son, so as to restrain him from authorising his widow to
adopt a son who should succeed to the ancestor's estate.

1669

1713

Held also, apart from the construction of the deed that it was not
legally competent to the ancestor to restrain his son from em-
powering his widow to adopt a son as heir to the ancestral
estate,

2. Claim of inheritance, founded on the adoption of plaintiff, dis-
missed for want of proof of the adoption,

3. Decision of the lower court, declaring a deed of permission to
adopt spurious and invalid, and setting aside the adoption made
under the said deed, upheld, as this Court, on appeal, did not
consider the evidence to the execution of the deed of permission,
taken into consideration with the probabilities of the case, wor-
thy of credit,

...

4. Order of lower court upheld, treating the hibanamah, filed by
defendant as a forgery, and setting aside an adoption made by
her under it. But no authority to the claimants to the property
in defendant's possession to assume possession could thence be
presumed,

5. Held, in accordance with previous precedents of the Court,
that in Bengal, where the Dayabhaga prevails, an adopted son
succeeds collaterally as well as lineally, in the family of his adop-
tive father, that is, to the agnates or sapindas of his adopting
father. Whether he succeeds to the bundhoo, or cognate rela-
tion, is not now before the Court,

Adultery. See Inheritance, No. 8.
Charitable Allowance.

Held that the (plaintiff) respondent was not entitled to the per-
manent continuance, as of right, from the superintendent of the
temple of Juggurnath, of a charitable allowance for the use of
bushtoms, originally granted by the Mahrattas, the payment of
which had been continued by the British Government till the
passing of Act X. of 1840,

...

Order of the lower court upheld, which decreed, according to the
established family custom, the ancestral entailed property to
the defendant, as eldest son of the elder branch, and the pro-
perty acquired by the father, part to plaintiff, part to defendant,
according to the rules of Hindoo succession, the acquisitions
not being by means of the joint funds of an undivided family, ...
See Appeals, Special, No. 25.

Limitation, No. 33.
Inheritance, Nos. 4. 6.

Gifts at Temples.

The precedent of 14th January 1852, commonly called the Kalee-
ghat case, held to apply to this suit, which was for the offerings
made by visitors at a temple within a particular time, received
by defendants on plaintiff's account. The claim by the latter
is held to be one of a civil nature, for which an action could
lie,

122

471

834

995

1863

287

989

...

1820