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![handle is hein.slavery/ssactsengr0615 and id is 1 raw text is: XI MOORE IND. APP., 176 WISE V. SUNDULOONISSA CHOWDRANEE [1867]
is no trace of any distinction like that taken by the Pundit between ancestral
and acquired property. In some of the cases cited the property was not ancestral.
Again, supposing that any of the property claimed in this suit were of the
nature of Stridhun, and passed as such, the Respondents would seem to have a better
title to it than the Appellant. The devolution of Stridiun from a childless widow
is regulated by the nature of the marriage. There is nothing here to show that
Choteh Bebee was not married according to one of the four approved forms. In
that case her Stridhun would, according to the Mitacshara (chap. ii. sec. xi., art. 11),
go to the Respondents as the collateral heirs of her husband. This view of the law
is confirmed by two cases in 2 Strange's [176] Hindu Law, pp. 411 and 412, and
the comments of Mr. Colebrooke and others thereon. Upon this, record, however,
it seems admitted that the whole of the property in dispute was either inherited
from the husband, Ramjee, or the fruit of its accumulations.
Their Lordships, then, are of opinion that Choteh Bebee had no power of dis-
position over the immovable property inherited from her husband, whether
ancestral or acquired. Whether she had any such power over his movable property
it is unnecessary to determine; since it has been found that no valid disposition of
either kind of property has in fact been made. And this being the case, their
Lordships are of opinion that, as between the parties to this record, the right to the
possession of the whole of the property in dispute, on the death of Choteh Bebee,
passed to and became vested in the Respondents.
The decree impeached is, therefore, substantially right. . Whether it is altogether
right in point of form may be doubted. It contains an order that the Respondents
should recover from the Appellant the possession of the immoveable property, with
mesne profits from the date of the institution of the suit; whereas the plaint seems
to admit that the whole, or a large portion, of such property was at that date in the
Respondents' possession, and made no demand for mesne profits. The error (if
error there be) appears only in the formal decree-not in the judgment upon which
it is founded. The recommendation which their Lordships will humbly make to
Her Majesty is, that the decree of the Sudder Court be varied, and that it be thereby
decreed that the Respondents (the Plaintiffs) be confirmed in the [177] possession
of so much of the immovable property in the plaint mentioned as was in their posses-
sion at the date of the institution of the suit; and be declared entitled to the movable
property; and that they do recover from the Defendant (the Appellant) so much
(if any) of the said immovable property as was in her possession at the date of the
institution of the suit, with the mesne profits of such last-mentioned property from
the said date, together with the costs of suit in both Courts. Their Lordships,
however, are of opinion that, notwithstanding the variation of this decree, the
Appellant must pay the costs of this appeal.
[See Bhugwandeen Doobey v. Myna Baee, 1867, 11 Moo. Ind. App. 504; Brij lndal.
Bahadur Singh. v. Ranee .lainki Koer, 1877, L.R. 5 Ind. App. 15.]
J. P. WISE and JUGGUNATH ROY CHOWDRY,-Appellants; SUNDULOONISSA
CHOWDRANEE and Others,-Respondents * [Feb. 8, 9, 1867].
On Appeal from the Sudder Dewanny Adawlut, at Calcutta.
A nicka marriage between a Mahomedan and a woman of inferior station, and
the legitimacy of the child of such marriage established.
The Sudder Court discredited the evidence in favour of such marriage (which the
Principal Sudder Ameen believed), and without taking the direct testimony
upon that fact into consideration, inferred from the probabilities of the case
Present: Members of the Judicial Committee,-The Right Hon. Sir James
William Colvile, the Right Hon. Sir Edward Vaughan Williams, and the Right Hon.
Sir Richard Torin Kindersley. Assessor,-The Right Hon. Sir Lawrence Peel.](ViewImageLocal?handle=hein.slavery/ssactsengr0615&div=1&collection=&method=preview&ext=.png&size=3)