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1870

MAHOMED ABDUR RAHIM

v. BIRJU SAHU.

“ defendant's family, the plaintiff could have no relief in this respect, as he was the first and greater wrong-doer.”

They also rely on a decision of KEMP and SETON-KARR, JJ., of the 10th August 1865 (1), which is in these words:-“ We see

no reason whatever to interfere in this case. Both the Judges “ of the lower Courts have visited the spot and have satisfied “themselves that the opening of the windows complained of is

a violation of the privacy to which the plaintiff has a right. “ There is nothing contrary to law in this finding, and it is certainly in conformity to the usage of the country.”

There is also said to be a decision in the Agra High Court Reports of 1867, that the suit can be maintained, but the pleaders have not been able to show us the case in the Reports (2).

In Komathi v. Gurunada Pillai (3) the Madras High Court held that there was no “ right of privacy,” but the question, for reasons which do not appear upon the face of the judgment, was discussed with reference to European and not with reference to Hindu or Mahomedan law.

It is remarkable that, in the cases in which the right is upheld, nothing is said of gaining by prescription a right to prevent your neighbour from building his house so as to overlook your premises, but the “ right of privacy” is spoken of as if it were an

' inherent right of property, and the invasion of privacy is spoken of as something like a trespass. And in the present case the Subordinate Judge considers that intrusion on the privacy of female apartments is an “ injury” which the law will prevent.

It seems to me impossible to support this view. That privacy is of the utmost importance I can well understand ; and that the law should lay down rules to prevent that privacy being wantonly and unnecessarily invaded, would be also intelligible. But to hold that privacy is a right, and the invasion of it an injury, would lead, as it appears to me, to the most alarming consequences to the owners of house property in towns. By erecting female apartments a man would prevent his neighbours

(3) 3 Mad. H. C. Rep., 141.

(1) Unreported.

(2) See Goor Dass v. Manohur Dass, 2 Agra H. C. Rep., 269.

1870

ABDUR RAHIM

BIRJU SAHU.

building as they wished on property situate at a very great distance, and the erection of such apartments by two or three MAHOMED different persons might render all the surrounding land useless for habitation. But though this is the ground of the Subordinate Judge's decision, it is not necessary to go so far in order to maintain this suit. For instance, a right exists by express enactment in France, that a window should not be opened within a distance of six feet from a neighbour's property, and such a right might exist by usage in this country. But it does not appear that it is so, or that there is anything analogous to it. The only right which I find anywhere set up here is this supposed

right of privacy,” and that is a right which, in my opinion, cannot exist at any rate independently of prescription or grant or express

local

usage. With regard to the case of Sreenath Dutt v. Nand Kishore Bose (4), I wish to guard myself carefully from saying that I should dissent from the proposition there laid down. I think that the opening of new windows affecting a neighbour's privacy may very possibly give him a right, according to the usage of the country, of protecting his privacy by any erection which he chooses to put upon his own land; and that the person who has opened these new windows cannot complain that such erection interferes with his light and air. That is a very different question from the present, and does not arise here. I agree

with the Moonsiff that it is much more reasonable that the plaintiffs should protect themselves than that they should prevent the defendants improving their houses. I think he was right in holding that the suit could not be maintained, and in dismissing the suit. I think the decision of the Subordinate Judge ought to be reversed, and the suit dismissed, the plaintiffs paying one set of costs in all the Courts.

Judgment reversed,

(1) 5 W. R., 208.

[ORIGINAL CIVIL.]

1870 March 21.

Before Sir Barnes Peacock, Rt., Chief Justice, and Mr. Justice Norman.
HIRALAL MULLICK (PLAINTIFF) v. MATILAL MULLICK

AND OTHERS (DEFENDANTS).

Relief- Prayer for General Relief. Under a prayer for general relief, a plaintiff is not entitled to any relief which is inconsistent with his plaint ; therefore, where a plaintiff brought a suit to set aside his father's will, on the ground that he had no power to dispose of his property, but that the plaintiff was entitled as eldest son and heir-at-law according to Hindu law, the suit should have been dismissed with costs, and no account should have been decreed to the plaintiff in respect of his interest in a portion of the property, the bequest of which was, in the opinion of the Court below, void for remoteness.

This suit was brought by the eldest son of Dwarkanath Mullick, deceased. The plaint set out that the deceased died leaving the plaintiff, his eldest son and heir-at-law, and other sons and daughters, and considerable property; that the deceased made his will (which was recited), and thereby left all his property to others than the plaintiff, with the exception of a small sum for mainte

nance.

In the will was the following provision :

“ The residue of my personal estate and moveable property, after making the payments above mentioned, shall be divided into six equal parts, and one of such equal parts shall be paid and transferred to each of my five younger sons, Matilal Mullick, Chunilal Mullick, Ramlal Mullick, Lutulal Mullick, and Girish Chandra Mullick; and the remaining one equal sixth part shall be retained by my executors, and the income thereof accumulated and invested in Government securities, until the son or sons of my eldest son, Hiralal Mullick, if he shall have any son, shall attain full age, and shall thereupon be paid and transferred to such son or sons if more than one, in equal shares ;- but no such payments or transfer shall be made to such son or sons, until the youngest of them, if more than one, shall have attained his full age; and in case no son be born of my said eldest son, Hiralal Mullick, or no son shall attain full

1870

HIRALAL MULLICK

MATILAL MULLICK,

a

age, then the last mentioned sixth equal part of my residuary personal estate shall, on the death of the said Hiralal Mullick, be divided equally among such of my other five sons as shall then be living, and the male issue of such of them as shall then be dead; the male issue taking the share of a deceased son.”

It was further stated in the plaint as follows:

“ That the plaintiff submits that the Hindu laws regulate and dispose of the succession to landed and immoveable property of all deceased Hindus; and that by such laws, the said Dwarkanath Mullick could not legally or validly make any will to affect the ancestral landed and immoveable property, of which he was possessed at the time of his death, to the prejudice of the plaintiff, or in derogation of his rights; and the plaintiff further submits that the said will is void in law, and that the bequests made therein to plaintiff's prejudice are not valid. Plaintiff submits that, notwithstanding the said will, plaintiff is entitled under the Hindu law to all such ancestral immoveable property and to all landed property acquired by his father by the use of the rents and profits of such ancestral immoveable property; and that plaintiff is also entitled to the said moveable and personal property, or to a share or portion thereof. But should this Honorable Court consider such will not controlled, and not rendered nugatory and of no effect, by the laws of Hindus, as is above respectfully submitted, then plaintiff further submits that the testator has in the said will created perpetual trusts and perpetuities in reference to the landed or immoveable property, as also in reference to most of the personal or moveable property dealt with in the said will; and that the several devises and bequests of such property are also void in law for remoteness and uncertainty; and that all the said bequests are contrary to public policy and contrary to Hindu as well as to English laws, and that the said Dwarkanath Mullick has, in respect of said landed and immoveable property, and to the greater part of the said moveable property, died intestate, and that plaintiff is entitled to the ownership, as the eldest son of Dwarkanath Mullick, and to the possession of all said landed property, and to a share or portion of the said immoveable property.

“ That the plaintiff submits that, as far as the said will purports or professes to pass any ancestral estate of the said Dwarkanath

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1870

HIRALAL
MULLICK

v. MATILAL MULLICK

а

Mullick away from the plaintiff, it is wholly void ; and that the limitations sought to be created by the said will are inoperative and void, and cannot take effect. The plaintiff also submits to this Honorable Court that he is also entitled to a share of the personal property of which the said Dwarkanath Mullick died possessed, and that the bequests of the same are void in law.

“ That the plaintiff submits that, in case the said will is valid to any extent, then plaintiff is entitled to a share of all the said

properties, to reasonable maintenance out of the said estate; and that the maintenance mentioned in the said will is insufficient; and that the plaintiff is entitled to be paid, pending this suit, the maintenance mentioned in the said will, without prejudice to his right to maintain and continue this suit to set aside the said will as aforesaid.

“ The plaintiff prays as follows:

Firstly.--That it be declared that the testator had no absolute power of disposing by will of his entire estate, and particularly of his ancestral estate, to the exclusion of the plaintiff, and that it be declared that the plaintiff as eldest son or heir-at-law is entitled to the same.

Secondly.That it be declared that the trusts and limitations in and by the said will declared, in reference to the immoveable and landed estate of the said testator, and in reference to the residue of his personal estate, are wholly void and invalid; and that the plaintiff is entitled to the said landed estate and immoveable property, and to the residue of the said personal estate discharged from the trusts and devises, and the bequests thereof in the said will mentioned; and that it be declared that the testator has died intestate in respect to the said landed estate, and in respect of the said residue of his personal estate and immoveable property; that in case the Court be of opinion that the plaintiff is not entitled to the relief above asked for, it may be declared that he is entitled to a more adequate maintenance than that specified in the said will; and that the amount of such maintenance be ascertained by the Honorable Court, and the payment thereof directed out of the estate of the said testator; and that, in the meantime, and whilst this suit and plaint is being decided upon by this Honorable Court, the plain

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