TaxTMI 
TaxTMI 
TaxTMI 
1876 (11) TMI 1
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....High Court, as it appears to their Lordships, under the powers given them by Section 103 of Act VIII. of 1859, substituted his widow Abedoonimi for Waited for the purpose of prosecuting the appeal. The appeal was prosecuted; the High Court found the ikrarnamas to have been invalid, and reversed the decision of the Court below. The Court observe that since the death of Wahed " disputes have arisen, and litigation is now ponding concerning his proper legal representative; and for the purpose of prosecuting this appeal we have admitted his widow Mussumat Abedoonissa Khatoon to be his legal representative." At the conclusion of the judgment they thus express themselves: "The decree of the Court below is reversed, with costs. Confining ourselves to the matters in issue in the present suit, our decree will proceed on the basis of the validity of the three deeds of gift, and the invalidity of the later documents. We shall declare that Moulvi Wahed Ali was, in his lifetime, and that those who are now by law his heirs and representatives are, entitled to a decree for setting aside the documents relied upon by the Respondents, and for the recovery of the property sued for.&quo....
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....ately, we have not the original judgment of the Judge of Daeca before us. But we come to the conclusion that the Judge so decided, from the first order of the High Court on remand and what proceeded from the Judge upon the remand. The High Court, in remanding the case, made these observations: " The Lower Court has assigned no good reason whatever for not entertaining and disposing of the application for execution made in this case. Under sections 102 and 103, and section 208 of Act VIII. of 1859, the case may, so far as anything has been shown to us to the contrary, be perfectly well disposed of without a separate regular suit." And thereupon they remanded the case to be disposed of by the Judge of Dacca, and directed him to determine the question of the legitimacy of Wajed AH. After a second remand this question was heard and decided by the Judge of Dacca and decided against the widow, the Judge holding that Wajed Ali was supposititious. Subsequently, on appeal, the same matter came before the Court; and two Judges of the High Court reversed the judgment of the Judge of Dacca, and held that Wajed Ali was the legitimate son of Wahed. They refer to the proceedings in this....
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....ips that it ought not to be assumed that he would have come to that conclusion unless the objection had been raised; the assumption would be the other way. They cannot, therefore, assume consent even if consent would have given jurisdiction in such a case. 9. The question, whether the jurisdiction existed or not, depends entirely upon the construction of certain sections in two Acts which have been referred to; the first being Act VIII. of 1859, and the second Act. XXIII. of 1861. The sections of the first Act relied upon by the Court in their first remand are sections 102,103, and 208. The first sections, 102 and 103, relate to the substitution, in the case of the death of a sole Plaintiff or surviving Plaintiff, of a legal representative of such Plaintiff. The 102nd section refers to cases where there is no dispute. Section 103 is the section which, as before observed, was acted upon in this case, when Abedoonissa was allowed to prosecute the suit, and is to this effect: " If any dispute arise as to who is the legal representative of a deceased Plaintiff, it shall be competent to the Court either to stay the suit until the fact has been determined in another suit, or to dec....
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....em to try an important question, such as the legitimacy or illegitimacy of an heir. They are further fortified in this view by the consideration that under Section 364 of this Act no appeal would lie from any judgment or decision given in a proceeding under Section 208; it appears difficult to suppose that such an important question as this should be triable without appeal. Therefore, in their Lordships' view, agreeing with that of the Chief Justice, Section 208 does not apply. Even if it did apply, it would appear to their Lordships that inasmuch as proceedings under it are not subject to appeal probably a suit would lie for the purpose of reversing an order made in pursuance of it. 11. Act VIII. then being disposed of, we next come to the second Act, Act XXIII. of 1861. The sole section relied upon has been the 11th, which is in these terms: "All questions regarding the amount of any mesne profits which by the terms of the decree may have been reserved for adjustment in the execution of the decree or of any mesne profits or interest which may be payable in respect of the subject-matter of a suit between the date of the; institution of the suit and execution of the decre....