1880 - CHATU MISSER v. Secondly. That as a matter of fact there was no legal necessity for the mortgage by the widow. Thirdly. That the plaintiffs were, therefore, entitled to a decree, declaring that the mortgage was invalid against them after the widow's death. JEEVA MISSER. Judgment. In this Court it has been argued by the appellant, that GARTH, C.J. according to the rule laid down by the Privy Council in the Shevagunga case, (L. R., 2 Ind. Appeals, 169) the plaintiffs were not entitled to the decree which the lower Court has given them; that their interest being only contingent, the Court could make no declaration of title in their favour ; and that the decree, which they have obtained, is not one which can give them any consequential relief in this or any other suit. It appears to me, however, that this is one of that class of cases which are alluded to in the Shivagunga case, as being exceptions to the general rule which is there laid down. In page 191 of the judgment, their Lordships allude to suits, brought against Hindu widows by presumptive reversioners to restrain waste and the like, as being "suits of a very special class, which have been entertained by the Courts ex necessitate rei. They expressly say that in such cases the reversioner cannot get a declaration of his own title as against third persons; but he is permitted to sue as a presumptive heir, because, unless he were allowed to bring such a suit, there would be no means of preventing the widow from doing perhaps irre mediable mischief to the estate. And suits like the present, it seems to me, come clearly within the principle of that exception. It was held by the Privy Council in the case of Thakoorain Sahiba vs. Mohun Lal (7 W. R., P.C., 25), that suits of this kind would lie "upon the ground of the necessity that the contingent reversioner may be under of protecting his contingent interest." Unless such a suit could be brought, it might be impossible, if the widow lived to a great age, to bring evidence after her death to prove that there was no legal necessity for alienations which she may have made when a young woman; and it is for this reason, namely the probability of failure of evidence through lapse of time, that the right to bring these suits has been constantly upheld by this Court. (See the Full Bench case of Gobind Monee Dossee vs. Sham Loll Bysack, Sp. No. W. R., 165; Behari Lall Meher war vs. Modho Lall Gywal, 21 W. R., 430; Lalla Chuttur Narain vs. Wooma Koonwaree, 8 W. R., 273; and Kamikaprasad Roy vs. Sreemuttee Jagadamba Dossee, 5 B. L. R. 508). I think, therefore, that the lower Appellate Court was quite right, and that this appeal should be dismissed with costs. Principal and surety-Surety, Discharge of, Contract Act (IX of 1872) section 135-Interest, 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 liability. Judgment of the High Court, reported in 2 Cal. L. R., 455-Protap Chunder Dass vs. Gour Chunder Roy-affirmed. THIS HIS was an appeal from a decision passed by a Division Bench (GARTH, C.J., and McDONELL, J.) of the High Court of Calcutta on the 16th May 1878. The judgment of the Division Bench is reported in 2 C. L. R., 455, and there the facts will be found fully stated. Cowie, Q.C., and Doyne, for the Appellant. Leith, Q.C., and Graham, for the Respondent. Their Lordships of the Judicial Committee (1), in affirming the decision of the lower Court, delivered the following judgment:Accepting the facts found by both the Courts in India, their Lordships agree with the High Court that the liability of the (1) Sir JAMES W. COLVILE, Sir BARNES PEACOCK, Sir MONTAGUE E. SMITH, and Sir ROBERT P. COLLIER. 1880 March 5th. 1880 GOUR Roy v. PROTAP DASS. appellant, as accommodation acceptor of the hundis, depends on the answer to be given to the question whether he knew of CHUNDER and consented to the advance interest being taken. The High Court has answered the question in the affirmative, and their CHUNDER Lordships entirely agree in that conclusion. Monohur Laha's evidence alone is sufficient to establish the fact that the defenJudgment. dant did know of, and consent to, the payment of the advance interest; and he was a witness called by the appellant. Nor do their Lordships think that the testimony of the witnesses adduced by the plaintiff is, though exceptions may be taken to parts of it, altogether inconsistent, as has been argued, with that of Monohur Laha. That which relates to a conversation between the plaintiff and defendant in the billiard room of the former, upon which there was no cross-examination, is quite consistent with all that Monohur Laha has deposed to. Again, the probabilities of the case appear to their Lordships to be all in favour of the conclusion of the High Court. Pogose, the drawer of the hundis, and the party primarily liable upon them, was absent from his place of business; his affairs were evidently in a very shaky condition; and, although it was possible that when he came back again he might he able to make some arrangement for the payment of the hundis, he had no present means of meeting them. In these circumstances it is hardly conceivable that the plaintiff would enter into a transaction, the effect of which would be to relieve the only solvent party from liability upon the hundis. On the other hand, it was much to the interest of the defendant to take the chance of the reestablishment of Pogose's credit, and therefore to assent to such an arrangement as was actually made. Their Lordships, therefore, will humbly advise Her Majesty to affirm the judgment of the High Court, and to dismiss this appeal with costs. Evidence Act, I of 1872, sections 35, 48, and 49—Custom of inheritance- Under Regulation VII of 1822, which directed that certain officers of Government should ascertain and record "the fullest information in regard to landed tenures, the rights, interest and privilege of the various classes of the agricultural community," and that "their proceedings should embrace the formation of as accurate a record as possible of all local usages connected with landed tenures," extracts from Wajibularz or village administration papers, and statements of the proprietors of villages showing that, in a particular clan, daughters were excluded by the custom of the clan from succeeding to the inheritance of their father's estate, were recorded and duly authenticated by the proper officers. Held, that the records containing such extracts and statements were admissible in evidence under section 35 of the Evidence Act. Quære. Whether such records were not also admissible in evidence under section 48 or section 49 of the same Act. Dabee Dut vs. Sheikh Emit Ali, 2 N. W. P. H. C. R., 395, cited. IN passed by the Commissioner of Lucknow and the Judicial Leith, Q.C., Cowie, Q.C., and Doyne, for the Appellant. The facts, so far as they are necessary for the purpose of this report, are stated in the judgment of the Judicial Committee (1), of the Privy Council, which was as follows: : The question in this appeal is whether the plaintiff, Baboo (1) Sir JAMES W. COLVILE, Sir BARNES PEACOCK, Sir MONTAGUE E. SMITH, and Sir ROBERT P. COLLIER. VOL. VI. 75 1879 v. MAHPAL Mahpal Singh, or one of the defendants, Rani Rughubuns Kuar, LEKRAJ KUAR is entitled as the next heir to Udit Pertab Sing, one of the talookdars of Oudh, to the talook of Surjpur, and another talook of which Udit Pertab Singh died possessed. Udit died without Judgment. male issue, leaving a widow, since deceased, and an only daughter, the defendant Rughubuns. The plaintiff is the nearest male relation of the deceased talookdar, standing in the position of first cousin once removed. On the death of Udit Pertab Singh, his widow Subbraj was put into possession of the talooks in dispute; but under a compromise with Rani Lekraj Kuar, the step-mother of the deceased talookdar, the possession was given up to Rani Lekraj. That was the state of things when the present plaint was brought, and Rani Lekraj Kuar was alone made the defendant. The first judgment in the case was given by the Deputy Commissioner when the record was in this state. On an appeal from his judgment the Commissioner directed that the daughter, Rani Rughubuns Kuar, should be joined as a defendant, and remanded the case to the Deputy Commissioner, directing a new issue, which was necessary in consequence of her being brought into the suit. That issue in substance was, whether the plaintiff or the daughter was the next heir to Udit Pertab Singh, and entitled to succeed to his estate. There can be no doubt that by the general Hindu law, which would prevail in the absence of any special custom, the daughter would have been entitled to the inheritance of her sonless father. The question which is raised in the cause, and by the issue which was joined after Rughubuns had become a defendant on the record, is whether in the Bahrulia clan, to which this family belongs, a custom exists to exclude daughters from succeeding to the inheritance of their father's estate. Other questions were raised in the suit, but the only question which remains to be determined is, whether the evidence which was given by the plaintiff to support that custom was properly admissible? This evidence consists of a number of Wajibularz or village administration papers, which state, in a manner which will be hereafter adverted to, a custom to the effect that daughters are excluded from inheritance in the Bahrulia clan. There is no doubt, that if those papers are properly admissible in evidence as |