Sudder Ameen's decision is in effect a nullity, although the other defendants have chosen to appeal it, considering the amendment detrimental to their interests. Such acknowledgments must be viewed in a different light from confessions of judgment in personal claims, in which the confessing party is decreed against as a general rule, and were properly dealt with by the Moonsiff. This part of the decision of the Principal Sudder Ameen is accordingly reversed. The costs of appeal will be paid by the respondent. CASE No. 45 of 1851. S. S. BROWN, Offg. Judge. Special appeal from the decision of BUKHTAWUR AND RAMDHUN, (Defendants), Appellants, versus RUTTEE RAM AND OTHERS, (Plaintiffs), Respondents. THE plaintiffs brought their action for possession of 5 biswahs in mouzah Ajeetgunge, forming lot No. 2, which fell to their share in a recent division of the property, and their plaint sets forth that a division having been called for by the disputes of the sharers, it was set on foot, and completed in the Revenue Department in the usual form; but that the Collector withheld his approval of it, and the suit was accordingly instituted to enforce the division. Several of the defendants filed confessions of judgment, but the claim was resisted by two of the number, who urged that plaintiff had incurred a nonsuit in having sued for possession under a division admittedly incomplete, instead of bringing their suit for a division de novo. The lower Courts decreed the claim chiefly on the ground of the parties having recorded an agreement at the time of Settlement to make a division when required, and they considered the Collector's order to be of no force in the face of this agreement. The plea for a nonsuit was overruled. A special appeal was granted to try, whether the decisions of the lower Courts were not opposed to Section 5, Regulation IX. of 1811, and Section 30, Regulation XIX. of 1814, and to a precedent of this Court, Bukshee Ram, versus Sheo Buksh, 23rd August 1849. The Court understand from the terms of the certificate, that it was granted to try the correctness of the decisions of the lower Courts in decreeing a division of shares represented by fractions of a rupee in a bhyachara tenure, the precedent of the 23rd August 1849, turning on this point, but they do not find the fact of the estate being a bhyachara one (which is assumed in the certificate) to be borne out by the record. The description of the tenure in the wajib-ool-urz agreement is idertical with the description of a joint estate in common tenancy contained in the Circular Order of the 3rd August 1847. The reasons assigned by the Collector for refusing his sanction to the division rest on different grounds, and the order is rather in favor of the fact of the simple character of the tenure than against it. Further, the respondents have not advanced any plea on this point here or in the lower Courts, and upon the plea for a nonsuit which has been reviewed in special appeal, the Court, under the terms of the certificate, is precluded from entering. The appeal is dismissed. Present The 16th June, 1850. CASE NO. 139 of 1850. A. W. BEGBIE, H. W. DEANE, Judges, Special appeal from the decision of A. RAJAH DOORGA PERSHAD, (Defendant), Appellant, versus KOONWUR TIKYT SINGH AND OTHERS, (Plaintiffs), Respondents. THE decision on this case is in the volume for the month. The chief point involved in the decision is stated in the following extract from the Judge's decision. "The chief question to be determined is whether the Civil Court has power to reverse a sale which has been regularly conducted, and whether a sale effected according to an order which was subsequently declared void and of no effect, must also be held void, or upheld." This point the Judge decided in the affirmative, as follows. "In the present case the Sudder Court on the 5th and 22nd April 1845, held that the demand of the plaintiff (now defendant) was illegal; that the plaintiff was not entitled to the sum he had demanded. If the demand was illegal the order to realize it was also illegal, and the sale of defendant's property made to realize that illegal demand, must be reversed." The certificate of special appeal was granted to try, whether the Judge's decision on this point was right in law. The liability of a sale to reversal on the reversal of the judicial order or decision which occasioned the sale has been already determined in a late judgment of the Court, Sheo Dahun, appellant versus Sheo Pershad, respondent, 11th June 1851. The ruling of the Court is equally applicable to this case. The appeal is dismissed with costs. CASE No. 227 or 1850. S. S. BROWN, Offg. Judge. Special appeal from the decision of G. F. Franco, Esq., Judge of Saharunpore, dated 30th May 1850. NARAIN DASS, (Defendant), Appellant, versus MEHRBAN ALI AND OTHERS, (Plaintiffs), Respondents. THE decision appealed from is in the volume of the decisions for the month. The plaintiff's brought their action for the right of preemption of a share in the mouzah, against another sharer, Deedar Ali, the seller, and Narain Dass, the purchaser, which was decreed in both Courts. The suit having been brought under the Mohumedan Law of preemption, a special appeal was admitted to try whether, when the evidence to the protest and demand had been discredited in both Courts, the presentation of a suwal to the Collector's office could be held to be a sufficient fulfilment under the Mohumedan Law of the conditions of the preemption claim. Evidence to the preliminaries of the protest and demand, as laid down in page 183 of MacNaghten's Mohumedan Law, is essential to the proof of the preemption claim, vide page 182, and application to a third party, which the plaintiffs, it appears, adduced as a further proof of their desire to purchase, cannot be regarded as making up for any defects in the original conditions. In disallowing the evidence to these, the Courts in effect pronounced decisively against the claim. The Principal Sudder Ameen has cited a futwa of the Mohumedan Law Officer of this Court in support of his finding, but on referring to it the Court observe that the facts in dispute in the case are all assumed in the questions propounded to the Law Officer, and the opinion thus obtained cannot, in consequence, be allowed any authority. The respondents' vakeel has pleaded verbally that the claim was preferred on the ground of the mutual agreement at the time of Settlement, as well as on the Mohumedan Law, and he has pointed to a single sentence in the body of the plaint in support of his assertion; but the Court find that the pleadings and proofs have been confined entirely to the latter, and as it has been ruled by the Court in their decision of the 8th June 1847, No. 105, that the preemption claim on the Settlement agreement rests on a distinct basis from that of the huq shoofa, the plea is wholly inadmissible. The decisions of the lower Courts are reversed, with costs. CASE No. 10 or 1851. S. S. BROWN, Offg. Judge. Special appeal from the decision of G. F. Harvey, Esq., Officiating Judge of Cawnpore, dated 17th July 1850. BULDEO SUHAI AND HURDIAL, (Plaintiffs), Appellants, versus KURUM BEEBEE AND AYMUN BEEBEE, (Defendants), Respondents. THE Judge's decision is in the book of decisions for the month. The respondents' names were inserted under the signature of their son and brother, Buksh Hoossein Khan, as mookhteear for them, in a deed of sale of a mouzah said to have been executed in favor of appellants by them, and the other sharers jointly, and an application for registry is alleged to have been made a few days afterwards by the sellers, accompanied by a mookhtetarnamah from the two women empowering the same party to act for them in completing the registry. In the suit afterwards brought on the sale deed, the Judge decreed against the other sharers, but dismissed it as regards the respondents for the reasons set forth in his decision. A special appeal was admitted to try, whether Kurum Beebee and Aymun Beehee had not given legal authority to Buksh Hoossein Khan to act for them under the power of attorney, dated the 11th October 1847, and whether the deed of sale as regards them is valid. The Court observe that the invalidity of the deed of sale in the respondents' case has been ruled by the Judge, and the facts of the case, according to the Judge's finding, are not open to question in special appeal; but the certificate having brought under consideration the reasons in the judgment on which the facts were found, the Court are of opinion that they are wanting in point of clearness. In regard to the execution of the deed, the Judge finds that no proof had been adduced by plaintiffs; that the respondents had empowered Buksh Hoossein Khan to sign it for them, "however such may have been understood, he being her eldest son and the lumburdar of the mouzah," and some circumstances are noticed which, in the Judge's opinion, are against their having been a party to the sale. But there is another alleged fact of much importance to the proper decision of the case, viz., the execution and presentation of the mookhteearnamah for the registry of the sale. On this the Judge has observed, "the power of attorney, subsequently filed, is repudiated by her, and as it is dated 11th October 1847, some thirteen days after the execution of the deed of sale, it is insufficient to bind her to a previous signature." If the Judge intend by this that the mookhteearnamah is not proved, the same should be clearly stated with the reasons of the finding, and some notice should be taken of the evidence to this point on the part of the plaintiffs. If, on the other hand, the Judge consider it genuine, the bearing and weight of the document, as presumptive evidence of the genuineness of the sale transaction, will require consideration. The Court accordingly annul the decision, and remand the case to the Judge, who will review his judgment in advertence to the foregoing remarks. Refund of the stamp will be allowed as usual in remanded cases. Present: The 16th June, 1851. CASE NO. 22 of 1851. Special appeal from the decision of C. R. Tulloh, Esq., Judge of Mirzapore, dated 18th September 1850. JUGGERNATH, (Plaintiff), Appellant, versus MUSSUMAT SAHIB KHANUM, (Defendant), Respondent. THE decision is in the volume of decisions for the month. The Judge observes "this being a new case for which I could find no precedent I admitted the appeal. I can trace no prece 2 |