Fresent: The 21st April, 1851. CASE No. 82 or 1850. A. W. BEGRIE, H. LUSHINGTON, Judges. Regular appeal from the decision of SYED MOHSIN ALI, MIRZA ALI HYDER, SOPEEYA BEGUM, HEIRS OF versus MIRZA MOHUMED HOOSSEIN, (Plaintiff), Respondent. THIS action has been brought to recover plaintiff's share, by descent, in the property left by Mohumed Mirza, deceased, and to set aside the will of the said Mohumed Mirza under which the defendants hold, as also other transfers effected by the devisees. ANCESTOR. Mohumidee Begum-Hajee Khanum-Ibrahim Beg, Mohumed Hussun, Mohumed Mirza Mussumat Misree Khanum Jân, defendant, now represented by the appellants, was the sister of Misree Khanum, the wife of Mohumed Mirza, who succeeded to the possession of the estate on the death of Misree Khanum. All the members of the family of Mohumed Mirza, and those who hold under them, so far as they are known to the plaintiff, have been made defendants. The point at issue therefore is, whether the estate of Mohumed Mirza is to descend according to the alleged will of the testator, or according to the Mohumedan law of inheritance. The pleas of the parties are numerous, but the turn which the case has taken in appeal obviates the necessity of noticing them minutely. The adjudication upon the principal plea has disposed of all the rest. The Principal Sudder Ameen was of opinion that the will had been executed without the consent of the plaintiff, and, in conformity with the futwa, which he had applied for and received from the law Officer of the Court, he recorded a decree in favor of the plaintiff, on the ground that plaintiff's consent had not been obtained. Had the Court agreed with the Principal Sudder Ameen on the point of consent, it would still have been necessary to modify the decision, or to remand the case, since the Prin cipal Sudder Ameen has left several important pleas undisposed of. The Court, however, are satisfied that the plaintiff did acquiesce in the disposal of the property by will, and that he cannot therefore claim the benefit of that provision of the Mohumedan law, which declares a devise to be invalid unless the consent of the heirs has been obtained. According to the futwa, the Sheeas may devise one-third of their property even without the consent of the heirs, whereas the Soonnees do not enjoy this privilege. The plaintiff declares that he is a Soonnee; but, as consent has been found, it is needless to advert more particularly to this part of the subject. Mohumed Mirza, the owner of the disputed property, died without children, in 1842, having, as alleged by defendants, executed a will on the 2nd May of that year, in favor of his wife, Misree Khanum, who, by the terms of the deed, was to manage the estate "buh-ihtimam-i-Abdoollah Beg." The will took effect, Misree Khanum was registered without objection in the Collector's Office in succession to Mohumed Mirza, and she conducted law suits, and managed the estate, up to the time of her death, which occurred in 1846. She was succeeded, as has been stated already, by her sister Khanum Jân, and then commenced the dispute, which has resulted in the present suit. Misree Khanum had mortgaged, and Khanum Jân had alienated by gift, part or the whole of the bequeathed property; the mortgagees and the donees have been made defendants accordingly. The execution of the will is very faintly denied. So much so, that the Principal Sudder Ameen would appear, from the tenor of his decree, to have taken the fact as admitted: and although, in appeal, the plaintiff's vakeel positively rejects it, the Court see no reason for entertaining an opinion on this point different from that which the Principal Sudder Ameen has apparently formed. The petition of plaint distinctly acknowledges that Misree Khanum held under the will, and it contains these words, since females are unable to conduct law suits and manage land themselves, and since I lived elsewhere, the estate came to be managed, according to the will, buh-ihtimam-i-Abdoollah Beg." An attempt was made to show that these expressions referred to some other wuseeyutnamah, but nothing whatever was advanced in support of the assertion. The plea upon which the plaintiff insists is, that he never consented to the will. The Principal Sudder Ameen has admitted this plea without giving a single reason for it, although the admission involves forgery on the part of the defendants. He declares simply that the plaintiff did not sign the wuseeyutnamah. The law of evidence in India is very different from the law of evidence in England, where the first principle is, that all testimony is true until it be shown to be false, but still the decision in India is not altogether arbitrary. Some ground must exist for setting aside evidence, and that ground should be clearly stated in the decree. In the case before the Court, the will itself has been produced, signed and numerously witnessed, and the only objection suggested by inspection is, that it is not registered. This is of no moment, since whatever doubt there may be, attaches to the signature of the plaintiff thereon as a witness to the deed, and not to the execution of the deed itself. If the plaintiff's signature be genuine, his consent to the will is of course proved. Five of the other subscribing witnesses depose that the plaintiff, Mirza Mohumed Hoossein, was present and consenting, and that he attested the will with his signature. Not one of the many remaining witnesses to the deed has given evidence opposed to that given by these five persons; but each party has, as usual, examined other witnesses, who depose, generally, to the facts alleged by those who produced them. The first part of the signature corresponds remarkably with the first part of the signature on the vakalutnamah filed with the misl by the plaintiff, a point to which no great importance can be attached, but which may be borne in mind whilst weighing other proof. The plaintiff, moreover, remained silent from the death of Mohumed Mirza, in 1842, till the death of Misree Khanum, in 1846, without offering the least objection, although, as clearly established by his own plaint, he knew that Misree Khanum had succeeded to the property, and that she managed the law suits and the land "az rooee wuseeyutnamah buh ihtimam-i-Abdoollah Beg." Independently of the declaration in the plaint, it is incredible that Misree Khanum should have performed a series of formal acts in the Civil and Revenue Courts without the plaintiff's becoming aware of them. Nor indeed is cognizance denied: plaintiff endeavors to explain his silence by the unanimity which prevailed in the family, and he would have it believed, that though he practically acquiesced in the operation of the will for four years, yet his acquiescence was temporary and conditional. It is also worthy of notice, that the whole family, together with the mortgagees, seem to be of one accord, and opposed to the plaintiff. He is not supported even by his own branch of the family, the other children of Mohumedee Begum, or their heirs, having sided with the devisees. For these reasons, the Court find "consent" on the part of the plaintiff, and as the decision on this point governs the whole case, it is unnecessary to notice, more than has been done already, the other parts of it. The Court reverse the decision of the Principal Sudder Ameen, and dismiss the claim of the plaintiff. Present: The 21st April, 1851. CASE No. 65 OF 1850. A. W. BEGBIE, H. LUSHINGTON, Judges. Regular appeal from the decision of CHOONNEE LALL, (Defendant), Appellant, versus MIRZA MOHUMED HOOSSEIN, (Plaintiff), Respondent. THE appellant is the mortgagee alluded to in the above decision, No. 82, Syed Mohsun, &c. versus Mirza Mohumed Hoossein. He appeals to set aside certain expressions in the decree of the Principal Sudder Ameen, and to obtain an order for his costs, which have not been allowed him. That decree having been reversed, it remains only to declare the plaintiff liable for the costs of appellant. 1.{ CASE No. 67 of 1851. Special appeal from the decision of J. P. Gubbins, Esq., Judge of Dehlie, dated 6th September 1850. MULLICK DHOOMEE, (Plaintiff), Appellant, versus BUSTEE AND JYKURRUN, (Defendants), Respondents. THE particulars of this case are to be found at page 196 of the printed decisions for zillah Dehlie. Of the two defendants, against whom a decree had been given by the Moonsiff, only one, Bustee, appealed to the Judge, yet the Judge reversed the decree in respect of them both, although their responsibility was not in common. A special appeal was admitted, on the application of Mullick Dhoomee, to try, whether the Judge was right in dismissing the suit as regarded the non-appealing defendant Jykurrun. This case is precisely similar to the case noted in the margin.* *No. 2 of 1850. Emam-ooddeen Khan, plaintiff appellant, versus Telok Singh and others, defendants, respondents. Sth July 1550. According to Construction 997, the Civil Courts ought, as a general rule, to confine themselves to the decision of the objections to the decree made by the parties who appeal, but that, when obviously Sudder Dewanny Adawlut, required for the ends of justice, the jurisdiction of the Appellate Court may extend to all the interests affected by the decree;" and whenever the Courts avail themselves of this discretion, a special declaration of the necessity for their doing so should be * Becha Lall, appellant, Cheda and others, respond ents, versus Sudder Dewanny Adawlut, 25th June 1849. recorded. In the case before the Court, no such declaration has indeed been made, but, from the tone of the Judge's decision, the Court infer that this has been an accidental omission. They therefore annul the decision of the Judge, and remand the case to his file, in order that, in the event of his being of opinion that the ends of justice obviously required the reversal of the whole of the Moonsiff's decree, he may declare the same in conformity with the precedent of this Court above referred to. Present: The 24th April, 1851. CASE No. 50 or 1851. A. W. BEGBIE, H. LUSHINGTON, Judges. Regular appeal from the decision of Mohumed Kureem-oollah Khan, Principal Sudder Ameen of Agra, dated 26th April 1848. BOARD OF REVENUE, (Defendant), Appellant, versus MR. H. H. BELL, (Plaintiff), Respondent. THIS appeal was heard by a full Court on the 8th January 1849, and the judgment of the Court of first instance was then reversed. A review of judgment has been granted on the ground, that "it appears from the proceedings that the English letters and documents, referred to in the judgment, as affording proof that the Board did not grant leases independently of the sanction of Government, were not accompanied by a vernacular translation, |