against the order of the Moonsiff exempting Atta-oollah from liability; consequently, it was not within the competency of the Judge, on the trial of an appeal brought by the remaining defendants, to question the propriety of the order for exemption. The decision of the Judge is set aside, and the appellant, Attaoollah, is released from liability in conformity to the decree of the Court of first instance. Present: CASE NO. 106 or 1851.. Special appeal from the decision of Tussuddooq Hoossein Khan, Principal Sudder Ameen of Cawnpore, dated 16th September 1850. DEVEE PERSHAD, (Plaintiff), Appellant, versus CHEITA, (Defendant), Respondent. In this case the plaintiff claimed from the defendant Rs. 30 as rent due on the eight-anna kist of 1256 Fuslee, he founded his suit on the jummabundee of Settlement. The Moonsiff reduced the claim to Rs. 5-5-6. The Principal Sudder Ameen in appeal confirmed the Moonsiff's decision. The plaintiff would appear to have succeeded as mortgagee to the possession of the land for which rent is claimed, the former holder having been Rajah Nerundurgir. It had been the custom of the Rajah to make a considerable abatement in his demand on the defendant for rent, whenever the rent was collected in kind. But it is admitted by the defendant that the jummabundee of Settlement fixed the rent payable by the defendant, at the amount now demanded. A special appeal was admitted to try, whether it was competent to the lower Courts to make a deduction from the plaintiff's claim to rent on the grounds stated by them, in opposition to the jummabundee fixed at the Settlement. It is obvious that the decisions of both the lower Courts are wrong. The voluntary relinquishment of any portion of his dues by the late holder cannot be binding on the present holder, it being an undisputed fact that the claim of the latter is in accordance with the Settlement jumma bundee. The judgments of the Courts below are reversed, and a decree is passed in the plaintiff's favor. CASE No. 49 of 1850. H. W. DEANE, } S. S. BROWN, Offg. Judge. Regular appeal from the decision of MOHUMED ALI, MOOZUFFER KHAN, MUSSUMAT AZEEZ-OON-NISSA, versus MUSSUMAT UJAIB-OON-NISSA, WIDOW OF BOONYAD ALI KHAN, (Plaintiff), Respondent. CASE No. 46 of 1850. MUSSUMAT UJAIB-OON-NISSA, (Plaintiff), Appellant, versus MOHUMED ALI AND OTHERS, (Defendants), Respondents. THE plaintiff brings her suit to recover Rs. 52,000, the amount of her dower. She states that she was the second wife, and that the marriage took place on the 11th Rujub, 1229 Hijree, when her dower was settled by verbal contract. She had lived with her husband until his decease, which occurred nine months before the institution of her suit, upon which the defendants took possession of the deceased's property amounting to Rs. 1,50,000, and refused to satisfy her claim. Defendants made answer that thirty-five years had elapsed since the marriage, and that the suit was barred by limitation. They further pleaded that plaintiff's dower was fixed at Rs. 7,000, and that plaintiff had formally relinquished it to her husband afterwards, that she had lived apart from her husband for some time before his demise, and had not made declaration of any claim for dower, and that defendants did not occupy the position of heirs of the deceased, inasmuch as he had constituted the whole of his property wuqf before his decease, and had made it over to them under a regularly executed deed of trust or towleeutnamah, as mootwullees or trustees of the same. Plaintiff in replication pleaded that limitation in cases of dower dated from the decease of the husband. She denied the relinquishment of her dower, and the fact of the assignment of the property by her husband for religious purposes, as well as the other statements of the defendants. Defendants rejoined that there were two kinds of dower, one mooujjil or payable immediately, another moowujjul or exigible at a stipulated period, that plaintiff had not specified of which kind her dower was, and that without such specification the plaint was obscure. The Principal Sudder Ameen rejected the limitation plea, and proceeding to the merits, first observed that the facts of the case, as set forth in the oral and documentary evidence, furnished ample tokens of the suit having been instigated by Nuzur Hoossein, a nephew of plaintiff's, who had abetted her in her quarrels with her husband during his life-time, and had prosecuted her interests in the suit. The judgment then proceeds to declare that the statement of the amount of dower in the plaint was not proved, and that for reasons drawn from the evidence which is entered upon in considerable detail, the witnesses were in the interests of the aforesaid Nuzur Hoossein. The evidence brought to prove that Rs. 52,000 was the rate of dower fixed by long usage in the families of the class to which plaintiff belonged was also rejected as inconclusive, but as the defendants had admitted that a dower of Rs. 7,000 had been settled upon her, and the evidence in proof of its relinquishment was devoid of credit, the Principal Sudder Ameen held that the sum of Rs. 7,000 was justly awardable. With respect to the towleeutnamah, the judgment was that it was proved, but that there was nothing in the terms of the deed to bar the realization of the dower from the proceeds of the assignment, and a decree was given accordingly. From this judgment both parties have appealed, and their appeals may, with propriety, be considered together. The Court overrule the plea of limitation, the specific objection advanced by defendants in their rejoinder has been revived by them in appeal, but being new matter not contained in their answer to the plaint, it cannot be admitted under the law of pleading in Section 5, Regulation III. of 1803. The judgment of the lower Court on the merits cannot in the opinion of the Court be maintained. The claim was for dower settled by verbal contract. The decree is founded on a contract and deed distinctly denied by the plaintiff. The lower Court could not find a fact at direct variance with the statement in the plaint, and yet make it the basis of a decree, and the decision of this Court in a parallel case No. 117, 6th September 1849, would alone be conclusive against such a finding. The evidence in the case exhibits much confident swearing to facts said to have occurred nearly thirty-six years before, but the Court concur with the Principal Sudder Ameen in declaring the evidence to the claim untrustworthy. The four principal witnesses admit their immediate connexion with Nuzur Hoossein, either as relations or dependants, and their evidence, which is full of improbable relations, is wholly insufficient to establish the fact which they were called to prove. The copious documentary evidence which has been brought to show that this rate of dower was an unvarying one, and common to the family, has been met by counter evidence to the contrary fact, and in defect of direct proof is of no value. The Court further consider that there is sufficient proof of the execution of the towleeutnamah, but under their view of the insufficiency of the proof of the claim it would be needless to inquire whether the Principal Sudder Ameen has construed its terms correctly, and whether the trust deed does not of itself defeat the claim. The document is, however, of use in assisting the judgment with regard to the baselessness of the suit by shewing that although the deceased conveyed away the whole of his property in trust for religious uses in 1845, under circumstances which establish by strong presumption the fact of the plaintiff's cognizance, no objection was made, nor was any claim for dower set forth until 1847, by which time the parties of the husband and wife had broken out into open quarrels. The decision of the lower Court is reversed, and the suit is dismissed, with costs. CASE No. 75 OF 1851. S. S. BROWN, Offg. Judge. { Special appeal from the decision of R. J. Tayler, Esq., Judge of Jounpore, dated 19th August |1850. SHEIKH BUBUR ALI, (Defendant), Appellant, versus J. M. TRITTON, (Plaintiff), Respondent. THE particulars of this case will be found at page 93 of the volume of the printed decisions of the Zillah Courts. A special appeal was allowed to try, whether the Judge was right in giving the plaintiff a decree for damages, notwithstanding that he has not found that the defendant has rendered himself liable for damages. The Judge has evidently misinterpreted the judgment of the Principal Sudder Ameen. The latter did not find the fact of obstruction by the defendant to the plaintiff's cultivation of in digo, or of damage done to the crop, but he found that of the land, which the defendant had stipulated to make over to the plaintiff, 30 beegahs 15 biswahs had not been made over, and he ruled (irregularly and improperly, for the point was not before him for trial), that the defendant should compensate the plaintiff for this deficiency by paying back at the rate of Rs. 5 per beegah, a portion of the rent which the defendant had received from the plaintiff in advance. The Judge observes, "I am of opinion, on looking over the papers that, as there were 30 beegahs 15 biswahs of land deficient, the plaintiff should be paid at the rate of Rs. 15 per beegah according to the conditions of the deed, for there was no agreement fixing Rs. 5 a beegah for injury and loss." Herein it is erroneously assumed that the Principal Sudder Ameen found the fact of damage, and the Judge, when he altered in favor of the plaintiff the Principal Sudder Ameen's decision, did not find that what the Principal Sudder Ameen had regarded as not amounting to a violation of the agreement did amount to a violation of it, but, unaware that the sum of Rs. 5 per beegah awarded by the lower Court had been awarded on account of refund of rent, not of damage, treated the subject as if it involved nothing more than an incorrect assessment of damages. It is for the Judge distinctly to decide whether the Principal Sudder Ameen was or was not right in his refusal to award damages, that is, whether the facts found establish the plaintiff's claim to damages on the ground of a violation of contract, in opposition to the finding of the Principal Sudder Ameen. The suit is remanded to the Judge's file, that he retry it with reference to the above remarks. Present: CASE NO. 126 or 1851 The 23rd July, 1851. A. W. BEGBIE, H. W. DEANE, Judges, Special appeal from the decision of Rai KUREEM BUKSH KHAN, (Plaintiff), Appellant, versus TULQEEN SHAH AND WASIL KHAN, (Defendants), Respondents. THIS was a suit to recover Rs. 113-4, on account of the rent of four beegahs of land No. 56 in the khusreh, cultivated by the |