The Dayabhaga is to the same effect. Par. 18, ch. 4, s. 1, is as follows: J. C. 1877 BRIJ INDAR V. KOER. "Since various sorts of separate property of a woman have been thus propounded without any restriction of number, the number six as specified by Menu and others is not definitely meant. But RANEE JANKI the text of the sages merely intend an explanation of woman's separate property. That alone is her peculiar property, which she LAL SHUNKUR has power to give, sell, or use, independently of her husband's control." Bux V. RANEE JANKI Bux Again, in the Mitakshara, par. 2, ch. 2, s. 11, it is laid down that LAL SEETLA property which she may have acquired by inheritance, purchase, partition, seizure, or finding, are denominated by Menu and the rest "woman's property." Again, par. 3, "The term 'woman's property' conforms in its import with its etymology, and is not technical; for if the literal sense be admissible, a technical acceptation is improper.' There is a note to par. 2, above quoted, with reference to property obtained by inheritance, and their Lordships' attention was called to it by the learned counsel for Shunkur Bux; but as the estate in dispute did not come to Kablas by inheritance, it is unnecessary to determine whether immoveable property acquired by a woman by inheritance is "woman's property." It has been decided that a woman cannot, even according to the Mitakshara, alienate immoveable property inherited from her husband, and that upon her death it descends to the heirs of her husband, and not to her heirs: Mussumat Thakoor Deyhee v. Rai Baluk Ram (1). The question does not arise in this case whether if the grant had been made to Kablas in her husband's lifetime the property would have been her peculiar property, over which her husband would have had no dominion or control: see Dayabhaga, c. 4, s. 1, pars. 20 and 23; for the property was granted to Kablas after her husband's death. The taluka must, in their Lordships' opinion, be considered to have been the property of Kablas at the time of her death. A woman's property having been described in the first eight paragraphs of the section, the distribution of it is then propounded-" her kinsmen take it if she die without issue;" but it (1) 11 Moore's Ind. Ap. Ca. 175. RANEE JANKI J. C. 1877 BRIJ INDAR SINGH บ. is only in the event of her dying without issue that her kinsmen succeed. Par. 9 goes on: "If a woman die 'without issue'—that is BAHADUR leaving no progeny-in other words, having no daughter, nor daughter's daughter, nor daughter's son, nor son, nor son's son, KOER. the woman's property, as above described, shall be taken by her kinsmen, namely, her husband and the rest, as will be forthwith described." RANEE JANKI LAL SHUNKUR RANEE JANKI Bux V. RANEE JANKI Par. 10. "The kinsmen have been declared generally to be competent to succeed to a woman's property." The author now LAL SEETLA distinguishes different heirs, according to the diversity of the marriage ceremonies. The property of a childless woman married in the form denominated Brahma, or in any of the four unblamed modes of marriage, goes to her husband; but if she leave progeny it will go to her daughter's daughters. In other forms of marriage, as the Asura, &c., it goes to her father and mother on failure of her own issue." 66 The words "daughter's daughter" are made clear by par. 15: "On failure of all daughters, the grand-daughters in the female line take the succession, under the text, if she leave progeny it goes to her daughter's daughter.' And, again, by par. 12, “ In all forms of marriage, if the woman leaves progeny, that is, if she have issue, her property devolves on her daughters." In this place, by daughters, grand-daughters are signified; for the immediate female descendants are expressly mentioned in a preceding passage: "The daughters share the residue of their mother's property after payment of her debts." Par. 13. "Hence, if the mother be dead, daughters take her property in the first instance." Par. 16 deals with the case of a multitude of grand-daughters, and is not applicable to the present case. A custom of the tribe was set up and relied upon to the effect that the property of a Bissein could be inherited only by a Bissein, and that it descended to collateral male heirs in preference to a daughter. The Commissioner in his judgment said that the custom among Chattris that collaterals are preferred to daughters is no doubt true, but it cannot be said to be specially proved in the case of Bissein Chattris. The Judicial Commissioner, however, was of J.C. 1877 opinion that the Plaintiff had failed to prove the special usage and custom which he had set up, and that there was no sufficient evidence to warrant the Courts excluding daughters from the BRIJ INDAR succession. BAHADUR v. RANEE JANKI Bux v. KOER. LAL SEETLA Their Lordships concur in that view, and are of opinion that there was no sufficient evidence to prove the custom set up. Beyond all doubt there was no such custom proved as regards the LAL SHUNKUR separate or absolute property of a woman. Their Lordships are, therefore, of opinion that, under clause 11, sect. 22, the estate RANEE JANKI descended to the Defendant (Respondent) as the person entitled under the ordinary law to which persons of her mother's religion and tribe were subject; and being of that opinion, it is not necessary to consider whether, if Kablas had died without issue, either of the Plaintiffs would have been entitled to succeed to the estate. The Judicial Commissioner held that the persons entitled to succeed must be sought amongst the heirs of the husband, and not of the widow. In this view of the case their Lordships, for the reasons above stated, cannot concur. The decree of the Judicial Commissioner was nothwithstanding correct; for he, holding that the Defendant was heir to her father, Mypal, dismissed the appeal against the decree in her favour. Their Lordships hold that that appeal was properly dismissed upon the ground that the taluka descended to her as heir to her mother, who at the time of her death was the talukdar, and had a permanent heritable right in the estate. Their Lordships will therefore humbly recommend Her Majesty to affirm the decrees of the Commissioner in the respective cases of Brij Indar and of Shunkur Bux, and to affirm the decree of the Judicial Commissioner in the case of Seetla Bux. The Appellants in each of the appeals must pay the Respondent's costs in that appeal. Solicitors for the Appellant Brij Indar Bahadur Singh: Solicitors for the Appellant Lal Shunkur Bux: Rogers & Judge. VOL. V. C v. RANEE JANKI KOER. Nov. 21, 22. DWARKA LAL MUNDUR AND OTHERS. ON APPEAL FROM THE HIGH COURT AT BENGAL. Mortgage-Notification-Reg. XVII. of 1806, s. 8-Foreclosure-Redemption- In a suit by the heirs of the mortgagees of certain property, for possession and for registration of names, against the mortgagors thereof and certain purchasers of the equity of redemption in part thereof, it appeared that proceedings had been taken to obtain foreclosure under Reg. XVII. of 1806; that no sufficient proof of notification, under sect. 8 of the Reg., to the mortgagors of the Plaintiff's petition of foreclosure had been given in the suit; that the zillah Judge in the foreclosure proceedings had found due service of the foreclosure petition on a mere statement to that effect by the nazir; that six out of nineteen mortgagors had admitted due service of the petition :— Held (1), that the finding of the zillah Judge in the foreclosure proceedings, so far from being conclusive, was not even primâ facie evidence in the suit of service, sufficient to shift the onus of proof in regard thereto. (2.) The duties of the zillah Judge in foreclosure proceedings are of a ministerial nature, and service of the petition therein must be strictly proved in a suit to enforce them. (3.) The year allowed for redemption runs from the date of notification, and not from the date of the Judge's order on the petition. Mohesh Chunder Sein v. Mussamut Tarinee (1) approved. (4.) The mortgage being for one entire sum, of one entire share of property, giving one entire right against all the mortgagors, notification to the above-mentioned six mortgagors would be insufficient to warrant the foreclosure of the whole property or any of it. (5.) The purchasers of the equity of redemption, whether they have taken possession or not, having purchased prior to the foreclosure proceedings, must be duly served. APPEAL from a decree of the High Court (April 13, 1874) which reversed that of the Subordinate Judge of Bhaugulpore and dismissed the suit of the Appellant. The suit out of which this * Present:-SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MOntague E. SMITH, and SIR ROBERT P. COLLIER. (1) 10 Suth. W. R. F. B. 27. J. C. 1877 NARAIN SINGH V. DWARKA LAL appeal arose was instituted on the 1st of October, 1872, to get possession of certain lands to which the Appellant alleged that he was entitled under an order of foreclosure. The plaint is suf- NORENDER ficiently set out in the judgment printed below. It was brought against Luchmee Narain Dass and five others, not parties to this appeal, and also against the Respondents (Mundurs) who derived their title as purchasers from the Dass Defendants. The Respondents' defences were, first, that the byebilwaffa (conditional sale or mortgage) under which the Appellant claimed and in respect of which he had instituted foreclosure proceedings was not a genuine document; second, that they had had no notice of the foreclosure proceedings; third, that all the mortgagors, either by themselves or their legal representatives, had not been served with notice under sect. 8, Reg. XVII. of 1806; fourth, that some portion of the property sought to be recovered was not comprised within the byebilwaffa aforesaid, and that other portions thereof had been purchased before the date of the byebilwaffa, and for parties other than the Appellant's mortgagors. The Subordinate Judge found that the byebilwaffa was a genuine document, and that the foreclosure had been properly completed, and in consequence decreed in favour of the Appellant. The High Court, on the other hand, held, on the appeal of the Mundur purchasers, that there was "no proof of service of the notification upon the original vendors or their representatives," and that “if any one of the mortgagors or his representatives was not duly served with notice, then the Plaintiff must fail to establish his title by foreclosure." And the High Court proceeded : "In this state of the case it is hardly perhaps necessary for us to mention that one of the original mortgagors, who was called as a witness, expressly stated that notice of the foreclosure was not served upon him. It thus seems to be quite clear that the Plaintiff has failed to make the very first step which he was obliged to take in order to prove his title to the property and the right to recover as against the appealing Defendants. "But we further observe that even if he had proved that the foreclosure had been duly effected, he would still have to prove that the share of this joint property which the appealing Defen |