Judgement

Appeal from a decree of the Judicial Commissioner (July 30, 1886) passed on second appeal, and affirming a decree of the Commissioner of the Nurbudda Division (May 1, 1886), which had reversed a decree of the extra Assistant Commissioner of Narsinghpur (Sept. 28, 1885).

The facts are stated in the judgment of their Lordships.

Cowie, Q.C., and Mayne, for the Appellant, contended that it was open to the Judicial Commissioner to consider the question of partition on its merits, and that he ought to have decided it in favour of the Appellant. [They referred to the Civil Procedure Code, sect. 584 Lachman Singh v. Mussummat Puna (L. R. 16 Ind. Ap. 125.) ; Nivath Singh v. Bhikki Singh (Ind. L. R. 7 All. 649, 652.); Futtehma

Law. Rep. 17 Ind. App. 122 ( 1889- 1890) Mussummat Durga C houdhrain V. Jawahir Singh C houdhri

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Begum v. Mohamed Ausur (Ind. L. R. 9 Calc. 309.); Assanullah v. Hafiz Mahomed Ali (Ind L. R. 10 Calc. 932.). [Sir R. Couch referred to Anangamanjari Chowdhrani v. Tripura Soondari Chowdhrani (L. R. 14 Ind. Ap. 101.).]

Doyne, and C, W. Arathoon, for the Respondents, were not heard.

The judgment of their Lordships was delivered by

LORD MACNAGHTEN —

This is an appeal against a decree of the Judicial Commissioner of the Central Provinces, passed on second appeal, affirming a decree of the Commissioner of the Nurbudda Division, which had reversed a decree of the Assistant Commissioner of Narsinghpur.

The appeal comes before this Board with the usual certificate from the Judicial Commissioner, to the effect that it involves a substantial question of law.

The Judicial Commissioner on second appeal had no jurisdiction to rehear the case on the merits. The only grounds on which a second appeal can be brought are stated in sect. 584 of the Civil Procedure Code, Act XIV. of 1882. They are these—

" (a.) The decision being contrary to some specified law, or usage having the force of law.

" (b.) The decision having failed to determine some material issue of law, or usage having the force of law.

" (c.) A substantial error or defect in the procedure as prescribed

by this Code or any other law, which may possibly have produced error or defect in the decision of the

case upon the merits."

In sub-sect, (a) the word " specified " obviously means specified in the memorandum or grounds of appeal.

At the outset of the argument their Lordships were informed that, according to Indian authorities, the appeal might be supported under sub-sect (c) if it did not fall within sub-sect, (a); but they were told that it was impossible to state the point intended to be raised without going into the facts of the case.

The facts are few and simple. The Appellant, who was Plaintiff in the Lower Court, is the widow of the younger son of one Beni Singh, who died in 1878. The suit was brought to establish her right to certain villages which had been in her husbands possession and registered in his name, but which after his death in 1883 were registered in the name of his elder brother, the Respondent Jawahir Singh.

The Appellants right as heiress to her husband depended upon her establishing that a partition of the family property had taken place in the year 1857.

It was not disputed that Beni Singh did make a division of the family property in 1857 between himself and his two sons. The Appellant contended that this division was an absolute partition. The Respondent maintained that it was merely a convenient arrangement for the purposes of management.

In support of the Appellants case witnesses were produced who deposed to conversations alleged to

Law. Rep. 17 Ind. App. 122 ( 1889- 1890) Mussummat Durga C houdhrain V. Jawahir Singh C houdhri

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have taken place at the time of the division of the property. A copy of a petition was put in, purporting to proceed from Beni Singh, but not signed by him, which was filed in the Revenue Court in October, 1864, and which contained this sentence—" It is now five or six years since I divided the villages betw