Foreclosure-continued.

v.

ings as therein laid down, and make a record of
them; but he can give no judgment in any way
binding on the parties, whose rights are regulated
entirely by the Regulation itself. FORBES
AMEEROONISSA BEGUM, 10 Moore's Ind. App.,
340; 3 W. R., 47, P. C., cited and approved.
The condition of foreclosure required by Regu-
lation XVII of 1806, sec. 8, is that the mortga-
gor should be furnished with a copy of the peti-
tion, and should have a notification from the
Judge, in order that he may, within a year from
the time of such notice, redeem the property.
In an action brought to recover possession as
upon a foreclosure, it is essential for the plain-
tiff to satisfy the Court, by evidence, that the
foregoing condition has been complied with.

SYUD YUSUF ALI KHAN v. MUSSAMUT AZUM-
TOOISSA, W. R., 1864, p. 49; and MADHO SINGH
v. MAHTAB SINGH, 3 Alla, 325, cited and ap-
proved. It is doubtful whether the finding of
the Judge, recorded by him in the proceedings
upon the foreclosure petition, would be even
prima facie evidence of the fact of service of
notice. Proof of service of notice on the parties
entitled may be waived by an admission by them
that the notice was properly served upon them
at the time at which the mortgagee alleges it to
have been, or that they had knowledge of it at a
time which would have justified the foreclo-
sure. When the mortgagee seeks to foreclose he
must discover and serve notice of foreclosure on
the persons who are the then owners of the estate

whether in possession or not. The purchaser
of the equity of redemption, though not in pos-
session, is therefore entitled to receive notice.
MOHUN LALL SOOKUL v. GOLUCK CHUNDER
DUTT, 10 Moore's Ind. App, 1; 1 W. R., 19,
P. C., quoted. Where property, though held in
certain shares, is mortgaged as a whole, the mort.
gagee cannot obtain a foreclosure of the whole
of the estate, or of any part of it, upon a service
on some only of the mortgagors. The year dur-
ing which the mortgagor may redeem his property
runs not from the date of the perwannah or the
issuing of it by the Judge, but from the time of
service. MOHESH CHUNDER SEN v. MUSSAMUT
TARINEE. 10 W. R, 27, F. B.; 1 B. L. R., 14,
F. B., cited and approved. NORENDUR NARAIN
SINGH v. DWARKA LAL MUNDUR
369

...

2.
Mitakshara Law-Ancestral Im-
moveable Property-Alienation.] Discussion of
what constitutes ancestral immoveable property
under the Mitakshara law. Up to the time of
the foreclosure becoming absolute, the interest
of the vendee by conditional sale amounts only
to securing his money. He has the land, but he
has it simply as security. The effect of the fore-
closure is (it is believed) to put an end to the
conditional sale and make the property the im-
moveable property of the person who advanced
the money from the date of the conditional
sale. GIRDHAREE LALL v. KANTOO LALL, 22

Good Behaviour, Security for-Sec. 509,
Code of Criminal Procedure-Mode of fixing the
amount.] The amount of the security to be fur-
nished for good behaviour should be such as to
afford the person a fair chance of complying with
the order, so as not to make the alternative im-
prisonment unavoidable. Such imprisonment
is not as a punishment for a crime committed,
but as a protection to society against the perpe-
tration of a crime by the individual on his fail-
ing to furnish other security. When the amount
of security required is prima facie unreasonable,
the High Court can call upon the Magistrate to
certify the grounds for fixing that amount, 4 Mad.
xlvi, App., approved and followed. In the
matter of DEDAR BAKSH and HALAL CHOR... 95
See DISCHARGE, ORDER OF.
High Court.
LOCAL NUISANCE.
83. 58
Jurisdiction of. See LEGIS-
LATIVE COUNCIL, Powers of

2.

...

161

...

275

RAJCOUMAR SINGH .

352

97
Hindoo

See VERDICT OF JURY.
Charter Act, sec 15-Er-
traordinary powers-Right of Appeal in ordinary
cases.] When there is the right of appeal pro-
vided by law, the High Court will not exercise
its extraordinary powers under sec. 15 of the
Charter Act. All other remedies provided by law
must be first exhausted.
DINO NATH GHUTTUCK
Hindoo Law. See MITÄKSHABA
2.
Mitakshara-Joint
family-Execution of decree-Sale of share of
one member-Purchaser can compel partition.]
Even if a member of a joint undivided Hindoo
family living under Mitakshara law cannot en-
cumber his share in the joint property without
the consent of his co-sharers, where he has con-
tracted a lawful debt, the creditor can enforce
his decree by selling the right and interest of the
debtor ; but though, the purchaser acquires a lien
on the property to that extent, he can only com-
pel the partition which the debtor might have
compelled, had he been so minded, before the
alienation of his share took place. Full Bench
judgment of the Calcutta High Court, 12 W. R.,

VOL. I.]

Hindoo Law-continued.

...

49

97

---

1, F. B., 3 B. L R., 31, F. B., SUDABURT PER-
SAD SINGH v. PHOOLBASH KOER, explained.
The rule in Bengal is thus made similar to that
in Madras and Bombay. DEEN DYAL LALL v.
JAGDEEP NARAIN SINGH
Hindoo Widow. See MITAKSHARA
Homestead Land-Landlord and Tenant
Express and Implied Contracts-Custom-Con-
duct of parties.] The nature of a homestead
holding inust, as between landlord and tenant, be
always matter of contract, express or implied.
If there is no express agreement the law implies
one determinable at the option of either party;
that is, implies that the tenant holds at will, or
from year to year, or, in other words, by the
landlord's permission upon what may be the
usual terms of such holding by the general law
or by local custom; and in such a case the tenant
is liable to be ejected on a reasonable notice to
quit. The contract which the law implies may
be varied by local custom, or by conduct of the
parties showing an intention that the tenure is
not to be taken as permissive; but these are
matters which must in each case be proved, and
proved clearly. ADDAYTO CHURN DEY V. PETUM-
BER Doss, 17 W. R, 383. KOYLASH CHUNDER
SIRCAR v. WOOMANUND ROY, 24 W. R., 412.
RAMDHUN KHAN v. HARADHUN PORAMANICK,
9 B. L. R., 107; cited and approved. PROSONNO
SHEIKH RUTTON BE-
COOMAREE DEBEE v.

577
Hundi-Notice of Dishonour-Onus.] In a
suit against the indorser of a hundi, absence of
formal written notice of dishonour is not a suffi-
cient defence, unless it is also shown that by
absence of such notice the defendant has been
prejudiced. Where, in a suit by the indorsee of
a hundi against his immediate indorser, the
defendant pleads want of consideration, the onus
is on him to prove his plea. GOVIND RAM
MARWARI v. MONTORA SAHOO

Injunction. See PATENT

...

429

66

VOL. I.

Per CUN-

Issues, Framing New - Changing the nature
of suit. A sued to eject a ryot on the ground
of his holding over after the term of his pottah
had expired. The ryot denied that he had ever
held under a pottah from A, and alleged that
the jote belonged to B. Plaintiff's allegations were
found to be false, and his suit was dismissed.
The lower Appellate Court directed B to be
made a defendant, and remanded the suit to
have the question of ownership tried between
A and B; at the same time agreeing with
the Court of First Instance that the allegations
in the plaint were false: Held that the lower
Appellate Court should have dismissed the case,
and was wrong in so remanding it.
NINGHAM, J. :-The right of framing new issues
arises where the issues framed are insufficient
to dispose of the matters raised in the plaint.
RAM DHUN KHAN v. HARADHUN PURAMANICK,
12 W. R., 404, cited and distinguished. BнOO-
BUN DASS MUNDUL v. SREEMUTTY BILASHMONY
DASSEE...
Joinder of Charges-Code of Criminal Pro-
453-Several offences committed.]
cedure, sec.
Sec. 453 of the Code of Criminal Procedure
is not to be construed as meaning that, no matter
how many offences of the same kind a man
may commit within one year, he may not be
prosecuted for more than three. He may be
separately tried for other offences.
matter of RAM MANIKYA CHUCK ROBURTY... 478
Joint Contract-Suit against one of several
joint Contractors-Usages-Contract Act, IX
of 1872, sec. 43.] A judgment obtained against
one or more of several joint contractors operates
as a bar to a new suit against any of the others.
The fact that the joint contractors are trading

Joint Contract-continued.

partners does not affect the rule. The effect
of sec. 43 of the Indian Contract Act is to allow
the promisee to sue one or more of several joint
promisors in one suit, and to prohibit a defen-
dant in such a suit from objecting that his co-
contractors ought to have been sued with him.
KING V. HALE, 13 M. and W.. 494; BRINS.

MEAD v. HARRISON, L R.. 6 C. P., 584; 7

C. P., 547; NUTTOO LALL v. SHUNKUR LALL.
10 B. L. R., 200, cited and approved. Roop
LALL MULLICK v. RAJENDRONARAIN MOON.
488

SHEE

...

...

Lakhiraj Lands-Jurisdiction-Presumption
- Resumption and Assessment-Indian Evidence
Act, secs. 101, 103, 107, Regulation XIX of
1793, sec. 9.]. In 1862 plaintiff got a decree
in a resumption suit against defendant's prede
cessor, declaring his right to assess certain lands.
In 1874 he brought a suit for assessment of the
same lands, and, the question of jurisdiction
having been raised, one of the issues framed
was-"whether the resumed lakhiraj was of
date anterior to the permanent settlement:"
Held, that it did not lie on the plaintiff to show
that the Civil Court had jurisdiction to entertain
the suit, by proving that the grant had been
made since the permament settlement; but that
it lay on the defendant to show that it had not,
because (1) the affirmative of the issue was
asserted by the defendant: and because (2) the
terms of the lakhiraj grant under which the
defendant claimed would be more within his
knowledge than within that of the plaintiff.
In such cases, if any presumption were to be
made as regards jurisdiction, it would be in
favour of the ordinary and general tribunals of
the country to the exclusion of any special juris-
diction to be exercised under a particular statute
by the Collector. HIRA LALL PARAMANICK V.
BARIKUNNISSA BEEBEE
596
See RENT OF LAKHIRAJ LANDS

2.

Jurisdiction of High Court. See LEGISLA
TIVE COUNCIL. POWERS OF
Jurisdiction. See LAKHIRAJ LANDS
Jury. See VERDICT OF JURY

...

... 596

...

275

Kabuliat-Enhanced Rent-Tender of Pottah.]
Where plaintiff sues for a kabuliat, and the
Court thinks that he is not entitled to a kabuliat
at the rate claimed, but at a lower rate. no pre-
sumption can be made in favour of his having
been willing to grant a pottah at that lower rate.
He is, therefore, not entitled to a decree for a
kabuliat at that lower rate, and his suit should
be dismissed. GHOLAM MOHAMED v. ASMUT
ALI CHOWDHRY, 10 W. R., 14 (F. B.), followed.
GOPEENATH JANAH v. JETEO MOLLAH, 18 W.
R., 272, dissented from. GAGAN MANJHI and
others ". GOVIND CHUNDER KHAN and

others

...

...

...

241
2.
-Counterpart-Indian Evidence Act.
I of 1872, sec. 63-Secondary Evidence.] A
let lands to B, who sub-let to C, a ryot. C sued
for possession of part, after an alleged disposses-
sion, making A a party defendant to the suit. At
the hearing, C, in order to prove that the lands
in dispute were part of those let to him by B,
tendered in evidence the kabuliat given by him
to B: Held, that C should have produced the
pottah given him by B, and the grant from A to
B, or sufficiently account for their absence; and
that, as he did not do either, the kabuliat (which
was merely secondary evidence of C's pottah)
was inadmissible, even though it was produced
from the possession of the landlord A. SURJO
NARAIN GHOSE V HURRI NARAIN MOLLO... 547

[366
Landlord and Tenant. See HOMESTEAD
LAND. PAYMENT OF RENT TO ONE CO-SHARER
[577, 537, 564
2.
Indian Evidence
Act, sec. 116-Consent Decree for Arrears of
Rent.-Onus.] Plaintiff alleged a purchase of
land from A and B, that he afterwards granted
them a pottah and retained them in possession,
and he put in evidence a consent decree obtained
against B for arrears of rent: Held, in a suit
brought to recover possession on the ground of the
tenancy having expired, that that decree worked
no estoppel against B by virtue of sec. 116
of the Evidence Act, and did not relieve the
plaintiff from the necessity of proving his case
completely. SOLDAR MUNDUL v. NILCOMAL
CHATTERJEA

Legislative Council, Powers of—Absolute
and Limited-Delegation-Act XXII of 1869.]
Held, per CURIAM:-The High Court is competent
and bound to determine whether the Legislature,
in passing an Act, has acted within its legitimate
powers, The Governor-General in Council could,
in the exercise of his legislative powers, have
removed the district of the Cossyah and Jynteeah
Hills from the jurisdiction of the High Court.
Per JACKSON, AINSLIE, MARKBY, and KEMP, J.J.
(GARTH, C.J., MACPHERSON and PONTIFEX,
J.J., dissenting):-The notification of the Lieute
nant-Governor issued under authority of Act
XXII of 1869, section 9, could not have the