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the one meant. The
1870 taken in the account which has been
year proved must be the year meant.
PARK PITTAR. Mr. Branson in reply.
Couch, C. J.-I think that the judgment of Mr. Justice Norman must be confirmed. There is no question here that both parties are traders. Here they had mutual dealings. Now section 8, Act XIV of 1859 (1), says nothing of the extent of the mutual dealings. In this case there were two dealings. One was a purchase by the plaintiff from defendant of two cases of brandy, and the other the purchase of one case.
These constituted a case of mutual dealings. I don't see if we went into a consideration of the extent of mutual dealings, that there is any thing at all to guide us in the case of mutual dealings. The only question is whether Mr. Justice Norman was right with regard to the mode in which he reckoned the year. The Legislature would seem to have contemplated that the accounts would be yearly accounts, and that the balance would be struck yearly; and I think when we look at the reason of that provision, it must mean that the year was intended to reckon from the time when the balance was struck. The object seems to me to be this, that if there were accounts between the parties, in many cases there would be no right to sue at all until a balance is struck,and in other cases, even if there were a right to sue, the merchant would not sue without a balance being struck. It was intended that the year should reckon from the period when he might be expected to sue on the balance, and he is to have three years from that time as in ordinary cases. Mr. Branson has argued that this construction would enable parties to bring false actions by making up books. It may be that fraud would be practised in some cases, but we must not put a forced construction on an Act for the purpose of preventing fraud. Fraud is prevented in other
(1) Act XIV of 1859, sec. 8.—"In suits close of the year in the accounts of which for balances of accounts current between there is the last item admitted or proved merchants and traders who have had mu- indicating the continuance of mutual tual dealings, the cause of action shall be dealings, such year to be reckoned as the deemed to have arisen at, and the period same is reckoned in the accounts.” of limitation shall be computed from, the
ways, and by the criminal law. This observation was made in Srinath Das a recent case before the House of Lords, where it was argued Park Pittar, against the law with regard to the endorsement of one of a set
of bills of lading passing property that it would open a door to fraud, and Lord Westbury replied that fraud was prevented by other means, and not by putting a construction on a law with the view to prevent fraud. That is an answer to Mr. Branson's argument that parties would fabricate books to avoid the operation of the limitation law. If a party is able to do that, he would possibly find some easier method than making up books for a long series of years.
The decree of the learned Judge will be affirmed with costs.
PHEAR, J.-I quite concur. There can, I think, be no doubt in this case that the parties are traders, and that there have been mutual dealings between them as traders. However, during the consideration of the case, I felt that there was some difficulty in arriving at a conclusion. I have no doubt that the Chief Justice is correct in the supposition that the framers of the Act when wording this section had present to their minds only the case of yearly accounts. But even if that be so, it does not necessarily follow that the year to which they refer in this section is the period of twelve months at the lapse of which the accounts are made up. But probably the reason which actuated the Legislature in giving this particular period of limitation is that which was pointed out by Mr. Evans, namely, that it is reasonable not to force a merchant to sue until the period has elapsed at which he usually makes up his accounts with his constituents; and if that be the proper guide for the construction of this section, then I think we must take it that the year which is here mentioned is the twelve months which the merchant takes customarily for the currency of his accounts before balancing them. It appeared to me at first that the last words of the section which define, so far as the Legislature has defined, the year which was contemplated, namely, “such year to be reckoned as the same is reckoned in the accounts,” meant the year of the style in which the accounts were kept: they seemed to me to bear that meaning more readily than any other, and that meaning would certainly
make the section more completely operative than the one which I have already said I believe that the Legislature did really Srinath Das intend them to carry. I say more completely operative, because Park Pirtar. there is a class of cases, more or less large, and which will certainly not be easily brought within the scope of this section within the meaning of the word "year" which we feel obliged to give to it, that is, all those cases in which the merchant or trader balances his accounts at the lapse of periods which are less than twelve months. We have in this account examples of such cases, but it is rather difficult to foresee what would be the result of applying this section to one of them.
Attorney for the appellants : Baboo J. C. Chowdhry.
Attorneys for the respondents : Messrs. Berners f. Co.
Before Mr. Justice Norman.
IN THE MATTER OF KHATIJA BIBI.
1870 May 25.
Habeas Corpus-Return, Contradiction of_Mahomedan Law Marriage-
Custody of Wife--Minor.
The return to a writ of habeas corpus is not necessarily conclusive, and does not preclude enquiry into the truth of the matters alleged therein, although 56 George III., c. 100, does not apply to this country (1).
By Mahomedan law the mother is entitled to the custody of a female child, although married, until she has attained puberty.
Where a husband applied that his wife, stated in the return to a writ of habeas corpus to be “an infant under the age of sixteen years, to wit, of the age of eleven years or thereabouts,” might be delivered over into his custody; the Court, on the ground that she had not attained the age of puberty, and that her dower had not been paid, refused to order her to be taken from the custody of the mother, although the mother had taken her away secretly, in the absence of her father and husband from Bandari, where they were all living together, to Calcutta.
An application was made for a writ of habeas corpus to bring up the body of a Mahomedan girl, Khatija Bibi, who was alleged by her husband, Jewa Sallay, on whose behalf the application was
(1) See Queen v. Vaughan ; in the matter of S. M. Ganesh Sundari Debi,
ante, p. 418.
IN THE MATTER OF
made, to be unlawfully detained in the custody of her mother,
Assa Bibi. The application was made on the joint and several Kuatija Bibl. affidavit of Jewa Sallay, Amerji Ibrahamji, Ismael Kadir Hidad,
and Hadji Abu Bucker, in which it was stated that Jewa Sallay was married, on the 20th February 1870, to Khatija Bibi, the daughter of Ismael Assanji and Assa Bibi his wife, at Bundari, according to Mahomedan law and usage; that Jewa Sallay was, at the time of his marriage, informed by the father that Khatija Bibi was of the age of twelve years and six months; that after the marriage Jewa Sallay and his wife lived with Assa Bibi and her husband at Bundari ; that two days after the marriage Ismael Assanji left Bundari and went to Calcutta ; that about a week after Ismael Assanji left, Jewa Sallay also left Bundari and went to Bullesari, a place about fourteen miles from Bundari, to attend the wedding of a relative; that on his return he found the house in which he had left his wife and Assa Bibi deserted; that
1 about twelve or fourteen days after his return to Bundari, Jewa Sallay received information from his father-in-law that Assa Bibi and Khatija Bibi had come to Calcutta ; that Jewa Sallay thereupon went to Calcutta and got information from Ismael Assanji that Assa Bibi and Khatija Bibi were living in the house of a woman named Jhabban Maglani ; that Jewa Sallay thereupon went to her house and saw there Assa Bibi, but she would give him, on being asked, no information respecting Khatija Bibi ; that Jewa Sallay was informed by Ismael Assanji that Khatija Bibi had been secreted by Assa Bibi and placed in the house of one Mowla Bax, a person wholly unconnected with either Jewa Sallay's family or with his wife's; that Amerji Ibrahamji, and Ismael Kedar Hidad were present at the marriage of Jewa Sallay and Khatija Bibi; that Hadji Abu Backer was aequainted with Khatija Bibi who was about thirteen years of age; that he saw Khatija Bibi seated near the window of the house of Mowla Bax; that on being informed of this Jewa Sallay went to the house of Mowla Bax to see and bring away his wife, but he was not allowed to have access to the house, and came away without seeing her.
A rule nisi was thereupon granted by Mr. Justice Norman, on 9th May 1870, calling on Assa Bibi and Mowla Bax to show
IN THE MATTER OF
cause why a writ of habeas corpus should not issue to bring before the Court the body of Khatija Bibi.
The affidavit of Assa Bibi put in on showing cause stated, that Khatija BIBI. about eleven months ago her husband induced her to leave Calcutta and go to Bundari on the express understanding that she was to return with him after four months; that she went to Bundari with her two children, Khatija Bibi and Russul Bibi; that while she was at Bundari her husband, against her will and consent, procured the marriage of her two daughters, who were both minors, not having attained puberty ; the age of Khatija Bibi being about eleven years, and that of Russul Bibi being four years ; that Jewa Sallay, the husband of Khatija Bibi, well knowing that his wife had not reached puberty left her in Assa Bibi's custody as her mother, and had no intercourse with her and did not consummate his marriage; that Jewa Sallay had not alleged that his wife had attained puberty, or that the marriage had been consummated, nor, although Ismael Assanji was competent to state the age of Khatija Bibi, had he done so; that on the marriage of her two daughters, Ismael Assanji took from Assa Bibi her jewellery, and left her at Bundari; that after her husband had left Bundari she heard he had contracted a second marriage, and was living with his wife in Calcutta ; that thereupon
she went to Calcutta with Khatija Bibi, and, finding hier husband's house shut against her, she went with Khatija Bibi to the house of the wife of Mowla Bax, which house Khatija Bibi had left about the 28th or 29th of April 1870 ; that Jewa Sallay had instituted a charge against her for detaining his wife for the purposes of prostitution, which charge was false and malicious and made at the instigation of her husband, Ismael Assanji, to get her to leave Calcutta, which she would have to . do if Khatija Bibi went to Bundari with her husband, Jewa Sallay; that it was understood at the time of the marriage that Khatija Bibi should remain in Assa Bibi's custody until she attained puberty ; that she had not yet attained puberty, but on her attaining puberty she was willing to hand her over to her husband.
Mr. Evans, in showing cause against the rule, contended that this was not a proper case for a writ of habeas corpus to issue ;