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![handle is hein.slavery/ssactsengr0616 and id is 1 raw text is: XI MOORE IND. APP., 551 MOONSHEE BUZLOOR RUHEEM
On the whole case, they will humbly advise Her [551] Majesty to reverse the
decision of the Judicial Commissioner of Oude, except as to the appointment of a
co-trustee, and to affirm the decision of the Civil Judge, Mr. Fraser, with that
variation.
As the contention in this appeal ai'ises from the acts of the last owner, who has
subjected his property, by his mode of dealing with it, to questions fairly raised,
their Lordships think that the costs of the appeal of both parties should come out
of the residuary estate.
[See Ameeroonissa. Khatoon v. Abedoonlissa Khatoon, 1874-5, L.R. 2 Ind. App. 98.]
MOONSHEE BUZLOOR RUTEEM,-Appellant; SHUMSOONNISSA BEGUM,-
Respondent (three Appeals); and JODONATH BOSE,-Appellant; SHUM-
SOONNISSA BEGUM,-Respondent * [Feb. 12, 13, 14, 15, 16, 1867].
On Appeal froni the High Court of Judicrature at Calcutta.
In a suit by a Wife (a Mahomedan woman) against her Husband to recover the
value of Company's paper and real and personal estate, the plaint alleged, that
such paper being her separate property, had been, as she lived in seclusion,
indorsed and handed over by her to her Husband for the purpose of receiving
the interest thereon. The defence of the Husband was, that lie had purchased
such paper from his Wife, and on the indorsement and delivery had paid the
full value to his Wife, who had appropriated the proceeds to her own use.
Held, upon a review of the evidence, that although the Wife failed to prove
affirmatively the precise case alleged by her in the plaint, the Husband was
bound to show something more than the mere indorsenient. and delivery of
the Company's paper, and that from the relations subsisting between the
parties, the onus probandl was upon him to establish ; first, that the trans-
action which he set up was a bona. fide sale; and second, that lie gave full
value for the Company's paper so received from his Wife.
Held, further, that in the absence of proof of the Husband having the means of
purchasing the Company's paper, lie being at the time in embarrassed circum-
stances, and the condition of the Wife, a secluded woman, that no purchase
had taken place, and that the transaction was fraudulent as against her.
Although the habit of holding land Benamee is prevalent in India, such fact
does not justify the Court in making every presumption of such holding
against apparent ownership.
A suit for restitution of conjugal rights will lie in a Civil Court by a Mahomedan
Husband to enforce his marital rights.
By the Mahomedan Law such a suit is in the nature of a suit for specific perform-
ance, being founded on a contract of marriage, the Mahomedan Law regard-
ing it as a civil contract, and the Court will enforce all the obligations which
flow from such a contract.
If, however, there be cruelty to a degree rendering it unsafe for the -Wife to
return to her Husband's dominion, the Court will refuse to send her back
to his House; so also if there be a gross failure by the Husband of the per-
formance of obligations which the marriage contract imposes on him for the
benefit of the Wife, it affords sufficient ground for refusing him relief in
such a suit.
From the frame of the pleadings and issues, the question of cruelty was not
properly entered into, but in the circumstances of the conduct of the Husband
towards his Wife, the Judicial Committee declined to direct the Wife to be
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/ssactsengr0616&div=1&collection=&method=preview&ext=.png&size=3)