Page

the prosecution of a suit, his omission to do so in the first instance
is fatal to his availing himself of it as an objection on appeal.

Where a woman is in possession of her husband's estate as
security for unpaid dower, the proper decree, in a suit against her
for possession by the heir, is a decree for possession, subject to the
amount due, with a direction for an account as to mesne profits
received by her.

A Mahomedan died, leaving, among others, a widow and a sister
entitled to shares in his estate. The widow got possession of the
whole. The sister died; and after her death, her husband, on
behalf of himself and grandson, sued the widow to obtain the shares
to which the deceased's sister was entitled, and obtained a decree
for payment of the same after satisfaction of the widow's lien for
dower, in certain proportions to himself and grandson. The hus-
band's interest in the decree was subsequently confiscated by
Government for having taking part with the enemy in the mutiny.
He subsequently died, leaving his grandson. The widow died
during the mutiny, and her brother was put into possession of the
property, by the Government as her heir. The grandson now sued
the widow's brother to recover his own and his grandfather's share,
alleging that the lien for dower had been satisfied. Held, the suit
was not barred by Act VIII of 1859, section 2.

NAWAB MAHOMED AMEEROOdeen Khan v. MoozuFFUR HOSSEIN
KHAN

...

PRACTICE-Execution of Decree made on Appeal-Mesne Profits.]
When the Privy Council declares an appellant entitled to real pro-
perty of which he was out of possession, and directs the High Court
to make the inquiry necessary to ascertain what is comprised there-
in, and to proceed in the suit as upon the result of such inquiry
may appear to be just, the High Court, on being applied to for
execution, ought, besides giving possession, to ascertain and award
the mesne profits up to the date of giving possession.

An appeal will lie as of right from the order of a single Judge
of the High Court as to execution of a decree of the Privy Council
where the property is over rupees 10,000.

570

RAJAH LILANAND SING v. MAHARAJA LUCKIMPUR SING BAHADUR 605
PRAYER FOR GENERAL RELIEF ..
682

See RELIEF.

...

...

...

PRESCRIPTION, RIGHT OF-Permissive Possession.] To con-
stitute a right by prescription, the possession must have been as of
right. Mere permissive possession cannot be the basis of right of
prescription.

ASKAR V. RAM MANIK ROY
PRESUMPTION

...

App. 12

578

See BENAMI PURCHASE IN CHILD'S NAME.

OF PAYMENT OF BILLS OF EXCHANGE 619
See SALE OF Goods.

PRISONER'S TESTIMONY ACT (XV OF 1869)-Defendant in
Custody-Act VIII of 1859, s. 78.] A Judge of a Small Cause Court
in the mofussil can direct the jailor to bring up before the Court,

at the hearing of the suit, a defendant committed to custody, under
section 78 of Act VIII of 1859, without having recourse to the
procedure under Act XV of 1869.

Page

215

...

500

:

App.

PROPERTY...

382

...

...

See EXECUTION.

REDEMPTION, EQUITY OF-Purchase by Mortgagee-Mort-
gagor and Mortgagee-Trustee.] K. D., a Hindu widow, by deed,
appointed R. S. to be her general mook tear, for the conduct of
certain suits in her name, which were pending in respect of the
estate of her deceased husband. By this deed, dated Septem-
ber 25th, 1858, she covenanted to repay him, within two months
of the successful termination of the suit, "all moneys properly
disbursed by him on her account, &c," and also to pay him an
additional sum as remuneration to himself. R. S. entered on the
conduct of her business, and advanced certain moneys on her
account; and in October 1859, K. D. executed in his favor a second
deed, by which she mortgaged to him her share in the estate of
R. H., deceased, which was in the hands of his executors," and my
"decrees, 24 and 25, in the Zilla Court, and the decree in the
"Supreme Court, and the right and interest of all the said decrees
"and all other real and personal properties belonging to the said
"estate." By a decree of the High Court of 28th July 1862, in
one of the suits brought by K. D., the estate of R. H. was declar-
ed to consist of a share of a certain talook, of a share of a house
in Calcutta, and of a certain sum of money; and K. D. was
declared to be entitled to one moiety thereof. K. D. afterwards
obtained an order for possession, and held possession of the said
talook until August 1866. R. S. continued the conduct of K. D.'s
business, and advanced more money on her account, in respect of
which, on May 31st, 1865, he brought a suit against her; and on
September 21st, 1865, obtained a decree in his favor. Under this
decree he attached the right, title, and interest of K. D. in the
estate of R. H.; and on 25th June 1866, it was put up for sale,
and purchased by R. S. himself. In a suit brought by K. D.
against R. S., among other things for an account, held, that R. S.
was a trustee for K. D., in respect of her share in the estate of R.
II., which he had purchased in execution of his decree.

A mortgagee cannot, properly, in execution of a simple decree
for money, the repayment of which is secured by mortgage, attach
and sell the mortgagor's equity of redemption in the property
mortgaged; but if he do so, and purchase it himself, he becomes
a trustee for the mortgagor, against whom he cannot acquire an
irredeemable title.

S. M. KAMINI DEBI v. RAMLOCHAN SIRKAR

450

Page

REDEMPITON, EQUITY OF-Sale in Execution of Decree--
Act VIII of 1859, s. 271.] Under Act VIII of 1859, an equity
of redemption can be sold in execution of a decree.

SRIMATI SARAswati Debi v. NABADWIP CHANDRA GOSAIN

...

380

389

FROM SMALL CAUSE COURT-Costs-Act
XXVI of 1864, s. 8.] Where a case had been referred from
the Small Cause Court, for the opinion of the High Court, at the
request of the plaintiffs, and they neither deposited any security for
the costs of the reference, nor appeared in the High Court, held
the case was not properly before the Court, and an application for
costs by the defendant who did appear was therefore refused.
RAJKUMAR PARAMANICK V. STEWART
App.

Where a case had been referred from
the Small Cause Court, for the opinion of the High Court, at the
request of the plaintiffs, and they neither deposited any security
for the cost of the reference, nor appeared in the High Court,
held, the defendants who appeared were entitled to judgment and
to an order that the plaintiffs should pay the costs of reference
and other expenses connected therewith.

F. DISSENT v. THE JUSTICES OF THE PEACE FOR THE TOWN OF
CALCUTTA

REGISTRATION

...

...

...

...

...

App.

See ACT XVI of 1864, s. 51.

Act XX of 1866, s. 48-Unregistered Deed of
Immoveable Property-Possession-Priority.] Where possession
of immoveable property has been given under an unregistered
lease, a subsequent grantee of a registered lease cannot maintain
a suit to evict the lessee in possession, on the ground of the priority
of his deed under section 48, Act XX of 1866.

...

...

App.

NARSING PORKAET v. MUSSAMAT BEWAH
REGULATION-1806-XVII, s. 7-Mortgage-Foreclosure of Equity
of Redemption--"Stipulated Period."] By a mortgage in the
English form, the defendants conveyed certain property to the
plaintiff, subject to the proviso that, in the event of the defendants
paying to the plaintiff the principal sum on the 4th September
1868, and in the meantime paying interest on that sum half-yearly,
with annual rests, in case of default of such payment, then the
plaintiff should re-convey the property. The defendants failed to
pay interest; and on the 4th December 1866, the plaintiff applied
to the Judge of Chittagong for foreclosure; thereupon notice under
section 8 of Regulation XVII of 1806 was issued, and served on
the defendants. On the 15th April 1868, this suit was instituted
by the plaintiff for the establishment and confirmation of absolute
purchase, and to obtain possession of the mortgaged premises.

Held, that the suit was not maintainable. Regulation XVII of
1806 applied to this mortgage; and, under that Regulation, the
mortgagee could not apply for foreclosure, until the time agreed
upon for re-payment by the mortgagor,—that is, the "stipulated

86

period" referred to in section 7, and the mortgagee is entitled to
one year's grace from notification of the application for foreclosure
made after that date.

SRIMATI SARASI BALA DEBI v. NAND LAL SEN

REGULATION-1812-XIV

...

See MOKURRARI ISTEMRARI Ротта.

-1814-XIX ...

See PARTITION.

-1822-XI

See ACT I or 1845, s. 21.

...

...

Page

...

389

652

RELIEF-Prayer for General Relief.] Under a prayer for general
relief, a plaintiff is not entitled to any relief which is inconsistent
with his plaint; therefore, where a plaintiff brought a suit to set
aside his father's will, on the ground that he had no power to dis-
pose of his property, but that the plaintiff was entitled as eldest
son and heir-at-law according to Hindu law, the suit should have
been dismissed with costs, and no account should have been decreed
to the plaintiff in respect of his interest in a portion of the proper-
ty, the bequest of which was, in the opinion of the Court below,
void for remoteness.

HIRALAL MULLICK V. MATILAL MULLICK...

RELIGIOUS ENDOWMENT

...

...

...

...

682

181

See PETITION OF APPEAL UNDER S. 15, LETTERS PATENT.
FREE SANAD. See SANAD, Rent-free.
RENTS, ACCRETION TO PROPERTY FROM

155

47

1

220, 321, 663

...

App.

50

529

418