Judgement

Consolidated Appeals (No. 66 of 1935), the first from an order of the Court of the Judicial Commissioner, North-West Frontier Province (April 8, 1933), affirming a decree of the Senior Subordinate Judge at Peshawar (October 20, 1932) ; the second, by special leave, from an order of the Judicial Commissioner (April 8, 1933) affirming an order of the Subordinate Judge (October 27, 1932).

Under an Order in Council, dated July 30, 1928, made in Appeal No. 84 of 1927 (Vaishno Ditti v. Rameshri (( 1928) L. R. 55 I. A. 407.)), a decree of the District Judge at Peshawar was restored with modifications, and the present appellant, Musammat Vaishno Ditti, was thereby granted a decree for a quarter share of certain movable and immovable property and for rendition of accounts. On the matter being made over to the District Judge he directed on October 8, 1930 (inter alia), that a commissioner should take the accounts and report. On June 27, 1932, the commissioner reported that the appellants share of rents, profits, etc., was Rs.65,243. The parties having filed objections to the report, the Senior Subordinate Judge dealt with them and on August 17, 1932, increased the amount due to the appellant to Rs.71,493. The appellant had valued her claim at Rs.44,250, and had paid court-fee on that sum only, and accordingly on fixing the increased sum due to her the Subordinate Judge had directed her to " put up prayer by 29th and pay balance of court-fee” On August 29, 1932, the matter was adjourned to October 20, and on that date an Acting Senior Subordinate Judge, purporting to act under the second paragraph of s. 11 of the Court Fees Act (VII. of 1870), dismissed the appellants suit on the ground that by that date she had not paid the additional court-fee.

An appeal to the Judicial Commissioner was dismissed.

The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee.

1937. Feb. 25, 26. L. P. E. Pugh and J. Nissitn for the appellant.

De Gruyther K.C. and J. M. Parikh for the respondents.

[In addition to the authorities cited in the judgment of the Judicial Committee reference was also made to Faizullah Khan v. Mauladad Khan (( 1929) L. R. 56 I. A. 232.) and Shankar Appaji v. Gangaram Bapuji. (( 1928) I. L. R. 52 B. 360, 364.)]

March 18. The judgment of their Lordships was delivered by Sir George Rankin. In this case two appeals have been consolidated. Both arise out of proceedings which followed upon an Order in Council, dated July 30, 1928, made in Appeal No. 84 of 1927 [Vaishno Ditti v. Rameshri. (( 1928) L.

R. 55 I. A. 407.)] They are brought by Musammat Vaishno Ditti, who on April 10, 1923, filed her suit in the Court of the District Judge of Peshawar to establish her right to a quarter share in the property left by her maternal grandfather, Balmokand, and his widow, Musammat Kauran. Balmokand had died in 1906 leaving a widow and five daughters, of whom one (Ramo) died without issue, so that her share accrued to the others equally. The widow had died in 1909.

The suit having succeeded before the District Judge was dismissed on appeal by the Judicial Commissioner, but by the Order in Council already mentioned the decree of the District Judge was restored " subject to the following modifications (a) that the appellant be granted a decree for a one-fourth share of the movable and immovable property, and (b) a decree for rendition of accounts as from June 23, 1910, with respect to her share with rents, profits and interest with costs here and in the lower Appellate Court." The family belong to the community of Arora Sikhs. The original and substantive dispute was between the plaintiff and her mothers three sisters. It turned upon the fact that the plaintiffs mother, Nikko (who had died in 1911), had been married in the lifetime of her father, Balmokand. For this reason, it was contended, she took no share by inheritance, her sisters being preferential heirs. The matter was complicated by the circum