JUDGMENT Das, J. - The plaintiff in this suit is the wife of the defendant. Both of them belong to the Jewish community and profess the Jewish faith. They are domiciled residents of the town of Calcutta within the ordinary original civil jurisdiction of this Court. They were married on 15th June 1924 according to Jewish rites and rituals. There are four children of this marriage. The marriage, however, did not prove to be a happy one. In 1928 there were troubles between the husband and wife but a reconciliation was brought about. Again in 1930, they fell out but were again brought together through the good offices of friends and relations. In 1934 the differences between the husband and the wife broke out once more and led the husband to suggest an amicable separation between them upon certain terms set forth in his solicitors' letter to the wife dated 20th June 1934. The differences, however, were happily composed and there was a reconciliation between the husband and the wife. Towards the end of 1937 unpleasant incidents occurred again and the parties went to the Police Court over them. The husband was, however, eventually acquitted and amity was restored. A deed of joint declaration was executed and the differences were adjusted on certain terms. The disputes unfortunately arose again and came to a head in 1941. It is neither profitable nor necessary to refer to the correspondence or to attempt to apportion the blame for the unhappy estrangement. Suffice it to say that eventually the husband again put forward the suggestion for a deed of separation The draft was prepared by his solicitors The terms having been finally agreed upon between the parties a deed of separation was executed by them on 13th February 1941. By this deed the husband agreed to pay to the wife, so long she should lead a chaste life, maintenance at the rate of Rs. 50 per month commencing from 1st October 1940 and the wife agreed that she should not by any means compel the husband to allow her any maintenance further than the said monthly maintenance of Rs. 50 until such time as there be an increase in the husband's income. It was also agreed that the said sum of Rs. 50 would be liable to proportionate decrease with the decrease in the husband's income. 50 until such time as there be an increase in the husband's income. It was also agreed that the said sum of Rs. 50 would be liable to proportionate decrease with the decrease in the husband's income. The custody of the children was given to the husband and a provision was made for allowing the wife to have reasonable access to the children. It was agreed that the wife might at all times thereafter live separate from the husband as if she were unmarried and in all respects free from the control and authority of the husband. Each party agreed not to molest or disturb the other or in any manner compel the other to cohabit with him or her or endeavour restitution of conjugal rights. Finally it was provided that if the husband or the wife should thereafter at any time by mutual consent come together and cohabit with each other or if their marriage be dissolved, her maintenance should thereupon be determined and cease to be payable and all covenants and provisions contained in the deed should become void. The sum of Rs. 50 is said to have been fixed on the basis of the husband's income being Rs. 150 per month at the time. 2. Pursuant to this deed of separation, the husband and wife lived apart, the children remained in the custody and under the care of the husband and the husband went on paying maintenance to the wife at the rate provided therein In April 1942, the husband notified the wife that he would not pay any further maintenance as he would lose his employment from June then next. Obviously the husband relied on the terms of the deed which provided that the wife's maintenance would decrease with the decrease in his income. On 4th May 1942, however, the defendant's father, who was a very wealthy gentleman, died. Under the deed of trust and under the will of the father the defendant is alleged to have come into a large fortune and his income is said to have gone up considerably. The wife was not slow in taking advantage of the changed circumstances and in demanding an enhancement of her maintenance proportionate to the alleged rise in the income of the husband and through her solicitors asked for particulars of the husband's income. The wife was not slow in taking advantage of the changed circumstances and in demanding an enhancement of her maintenance proportionate to the alleged rise in the income of the husband and through her solicitors asked for particulars of the husband's income. Evidently she also relied on the terms of the deed of separation providing for increase of her maintenance with the increase in the husband's income. 3. The husband proposed that the disputes should be composed and the parties should come and live together. Whether his suggestion was the outcome of a genuine change of heart or was made to enable him to get rid of the deed, it is not necessary at this stage to discuss. The wife did not agree to the suggestion. Then the husband offered to pay to the wife maintenance at the enhanced rate of Rs. 100 which was considered by the wife to be inadequate. The present suit has been filed by the wife for maintenance at the rate of Rs. 1000 per month and other incidental reliefs. The suit has been filed in the ordinary original civil jurisdiction of this Court. 4. The defendant has entered appearance and filed his written statement. In his written statement the defendant admits the execution of the deed of separation but contends, amongst other things, that the same is not valid and binding on him according to the Jewish law, that the suit does not lie at the instance of the wife against the husband. The defendant states that the plaintiff is a person of quarrelsome and insulting disposition, careless in household and domestic affairs and neglectful of the children and that her behaviour is wholly inconsistent with her duties as a wife under the Jewish law. The defendant concludes by saying that without prejudice to his right to have the plaintiff to return to and live with him, he had offered to pay Rs. 100 per month to the wife. It is clear from the written statement that the defence is mainly founded on the Jewish law which, it is contended, does not sanction a contract of separation between a husband and a wife. Two questions, therefore, arise, namely: (A) Is the Jewish law at all applicable to the contract in suit ? 100 per month to the wife. It is clear from the written statement that the defence is mainly founded on the Jewish law which, it is contended, does not sanction a contract of separation between a husband and a wife. Two questions, therefore, arise, namely: (A) Is the Jewish law at all applicable to the contract in suit ? (B) If yes, what is the Jewish law on the subject and the effect of that law, in the facts of this case, on the contract in suit ? 5. As to (A) - The first point, namely, whether Jewish law is at all applicable to the contract in suit was argued before me as a preliminary point. After hearing learned counsel I came to the conclusion that as the parties to this suit are of Jewish persuasion and the dispute is with regard to a contract, this Court in exercise of its ordinary original civil jurisdiction will have to take into consideration their personal law, if there be any provision therein applicable to a contract of this description. The suit had to be adjourned to enable the parties to adduce such evidence as to the Jewish law as they might be advised to do. The defendant has now adduced evidence of the Jewish law. No evidence has been adduced by the plaintiff. Before discussing the merits of the case on the evidence now before me, it is right that I should set out the respective contentions of the parties on the preliminary point as to the applicability of the Jewish law in this suit and my reasons for coming to conclusion which I have mentioned above. 6. Mr. Isaacs who appeared for the plaintiff (the wife) at the earlier stage of this suit contended as follows: This is a suit on a contract. The contract was made in Calcutta and was and is to be performed in Calcutta. The contract had been drawn up in English form by solicitors trained in English law and practising on the original side of this Court and therefore the parties must be taken to have contracted with reference to the general law prevailing in Calcutta. The contract was made in Calcutta and was and is to be performed in Calcutta. The contract had been drawn up in English form by solicitors trained in English law and practising on the original side of this Court and therefore the parties must be taken to have contracted with reference to the general law prevailing in Calcutta. Therefore having regard to the place where the contract was made and the place of its performance and the intention of the parties, the proper law of this contract must be the law of contract in force in Calcutta which, according to him, is the Indian Contract Act. The Jewish law is not the law in force in Calcutta and therefore cannot be the lex loci contractus or the lex loci solutionis and therefore the contract in suit is not hit by S. 23, Indian Contract Act. He referred me to Dicey's Conflict of Laws, 5th Edn., Rr. 155, 160 and 184 and several judicial decisions. 7. The argument of Mr. Surita who appears for the defendant (the husband) on the other hand, was as follows: This is not an ordinary contract like a contract of loan or of sale of goods or sale of land but it is in relation to a Jewish marriage and affects the marital relations between the parties. Both of them are of Jewish persuasion and are therefore subject to the Jewish, law which is their personal law. The dictum of Lord Hobhouse in (1894) A. C. 165 Parapano v. Happaz (1894) 1894 A. C. 165 : 63 L. J. P. C. 63 : 70 L. T. 254 at pp. 169-170, quoted by Ameer Ali J. in I. L. R. (1942) 2 Cal. 165 Noor Jehan Begum v. Eugene Tiscenko ('42) 29 A. I. R. 1942 Cal. 325 : I. L. R. (1942) 2 Cal. 165 : 200 I. C. 176 (S.B.) at p. 188, clearly shows that there is no territorial law or law of domicile in India and the personal laws of all communities have always been left intact. 165 Noor Jehan Begum v. Eugene Tiscenko ('42) 29 A. I. R. 1942 Cal. 325 : I. L. R. (1942) 2 Cal. 165 : 200 I. C. 176 (S.B.) at p. 188, clearly shows that there is no territorial law or law of domicile in India and the personal laws of all communities have always been left intact. The Indian Contract Act is not an exhaustive code and therefore if the relevant provisions of the Jewish law are not repugnant to any express provision of the Indian Contract Act or any other law in force in Calcutta and are not opposed to natural justice then such Jewish law should be applied by this Court in determining whether the contract in suit is valid or not. It is on this principle that the Courts in this country have always recognized and applied the Jewish law to regulate the rights and obligations of parties who are subject to that personal law. He has also referred me to several other judicial decisions. 8. It appears to me that the arguments of Mr. Isaacs proceed upon assumptions and in effect amount to begging the question. He assumes that the only law of contract in force in Calcutta is what is contained in the Contract Act, an assumption which is not correct. Off hand one may point to the rule of damduput which is a rule of the Hindu law of Contract which is in force in Calcutta and the Presidency Town of Bombay and is applicable to the contracts of Hindus. His other major premise is that the Jewish law is not in force in Calcutta, a proposition which really begs the question, for the preliminary issue is whether the Jewish law is in force in Calcutta so far as the Jews and their contracts are concerned. After a careful consideration of the matter and for reasons stated hereafter, I am unable to accede to the contentions of Mr. Isaacs. In my judgment the ultimate conclusion contended for by Mr. Surita must be upheld, although I am unable to accept all the reasons advanced by him in support of his contentions. For instance I do not agree with Mr. Isaacs. In my judgment the ultimate conclusion contended for by Mr. Surita must be upheld, although I am unable to accept all the reasons advanced by him in support of his contentions. For instance I do not agree with Mr. Surita that the Jewish law has always been recognized or applied by the Courts in this country and at any rate by this Court or its predecessor the Supreme Court of Calcutta in exercise of its original civil jurisdiction or that the Courts have applied the Jewish law merely because it is not repugnant to the Contract Act or is not opposed to natural justice. It will be seen hereafter that whenever the Courts in this country have applied any personal law to persons subject thereto, they have done so, because they had been enjoined, or considered themselves to have been enjoined, to administer that personal law. 9. In order to come to a right decision on this question it has to be borne in mind that this Court is a creature of Statutes and Charters and the jurisdictions and powers conferred on it and the law to be administered by it are clearly defined and prescribed by the Statutes and Charters creating it. This Court has, generally speaking, inherited the jurisdictions and powers of the Supreme Court with certain modifications. Therefore, one ought to take note of the historical background. It is not, however, necessary for me to go further back than the year 1726. Those who are interested in the subject may usefully refer to the very erudite and comprehensive judgment delivered by Westropp J. in 4 Bom. H. C. R. (O.C.) 1 Naoroji Beramji v. Henry Rogers ('67) 4 Bom. H. C. R. (O.C.) 1 where the earlier Charters of Queen Elizabeth, King James I and King Charles II have been clearly and concisely summarised. It is enough for me to start with the Letters Patent granted by King George I to the United Merchants of England trading to the East Indies bearing date 24th September 1726 (13 Geo. I). These Letters Patent established and constituted Mayor's Courts in Madras, Bombay and Fort William in Calcutta. It is enough for me to start with the Letters Patent granted by King George I to the United Merchants of England trading to the East Indies bearing date 24th September 1726 (13 Geo. I). These Letters Patent established and constituted Mayor's Courts in Madras, Bombay and Fort William in Calcutta. The Mayor's Court of Calcutta which was established as a Court of record was authorised to try, hear and determine all civil suits, actions and pleas between party and party that should or might arise or happen or that had already arisen or happened within the said town or factory of Calcutta at Fort William in Bengal or within any of the factories subject or subordinate thereunto. Its jurisdiction could be invoked upon complaint to be made in writing by or on behalf of any person or persons against any other person or persons whatsoever then residing or being or who at the time when such cause of action did or should accrue did or should reside or be within the said town of Calcutta at Fort William in Bengal or the precints, districts or territories thereof. It was to give sentence or judgment according to justice and right. The Governor or President and Council were empowered to make constitute and ordain byelaws, rules or ordinances agree, able to reason and not contrary to the laws or statutes of England. 10. These Letters Patent of 1726 were surrendered by the East India Company to King George II and the company obtained fresh Letters Patent in 1753. No substantial change in the constitution and power of the Mayor's Court was made by the Letters Patent of 1753. Then came what is commonly called the Regulating Act of 1773 (statute 13 Geo. III C. 63) which empowered His Majesty by Charter to erect and establish a Supreme Court at Fort William. The relevant provisions of this Act, so far as the present case is concerned, are contained in Ss. 13, 14, 16, 19 and 36. Then came the Charter of King George III dated 26th March 1774. Clause 2 of this Charter established a Court of record to be called the Supreme Court of Judicature at Fort "William in Bengal. For our present purpose Cls. 13, 14, 17, 18, 19, 22, 25 and 38 are relevant. 11. 13, 14, 16, 19 and 36. Then came the Charter of King George III dated 26th March 1774. Clause 2 of this Charter established a Court of record to be called the Supreme Court of Judicature at Fort "William in Bengal. For our present purpose Cls. 13, 14, 17, 18, 19, 22, 25 and 38 are relevant. 11. It will appear from the provisions of Regulating Act and the Charter to which I have referred that the Supreme Court of Fort William in the exercise of its criminal, ecclesiastical, infancy and admiralty jurisdiction was expressly enjoined to administer the English law. It will also be noticed that the civil jurisdiction of the Supreme Court was mainly confined to "British subjects" resident in Bengal, Bihar and Orissa and persons in their employment. It is well known that up to the year 1857 when the Crown took over the administration of British India from the East India Company the expression "British subjects" in English statutes applicable to India meant only British born subjects of His Majesty. It will be further noticed that the Supreme Court was given jurisdiction over all inhabitants of India residing in Bengal, Bihar and Orissa in respect of contracts in writing entered into by any such inhabitant with any British subject provided the cause of action exceeded Rs. 500 in value and the parties agreed by the contract itself to submit to the jurisdiction of the Supreme Court. As regards the law to be administered by the Supreme Court in the exercise of its civil jurisdiction no specific provision was made except that it was to give judgment according to justice and right as the Mayor's Court had been previously enjoined to do. The principles of English equity were, however, expressly introduced into India and the Supreme Court was empowered to administer the same. The Mayor's Court and after it the Supreme Court in the exercise of its civil jurisdiction, however, came to administer the English law and equity as principles of justice and right and it became well established that the law to be administered by the Supreme Court at Fort William in exercise of its civil jurisdiction was the English law and equity and the rules, ordinances and regulations made by the Governor-General in Council. The next enactment to be considered is what is commonly called the Act of Settlement 1781 (stat. 21, Geo. The next enactment to be considered is what is commonly called the Act of Settlement 1781 (stat. 21, Geo. III C. 70). For our present purpose the provisions of S. 17 of this Act are important. This section provided as follows: Provided always, and be it enacted that the Supreme Court of Judicature at Fort William in Bengal shall have full power and authority to hear and determine, in such manner as is provided for that purpose in the said Charter or Letters Patent, (i. e., those dated 26th March 1774) all and all manner of actions and suits against all and singular, the inhabitants of the City of Calcutta; provided that their inheritance and succession to lands, rents and goods, and all matters of contract and dealing between party and party, shall be determined, in the case of Mahomedans, by the laws and usages of the Mahomedans, and in the case of Gentoos, by the laws and usages of Gentoos; and where only one of the parties shall be a Mahomedan, or Gentoo, by the laws and usages of the defendant. 12. Having considered the jurisdiction and powers of the Supreme Court of Calcutta and the law to be administered by it in exercise of its original civil jurisdiction I shall very briefly deal with the Statutes and Charters establishing the Recorders Courts and then the Supreme Courts at Madras and Bombay. Statute 37, Geo. III, C. 142 authorised His Majesty by Charter to erect and establish Recorder's Courts at Madras and Bombay replacing the Mayor's Courts at those places. Statute 37, Geo. III, C. 142 authorised His Majesty by Charter to erect and establish Recorder's Courts at Madras and Bombay replacing the Mayor's Courts at those places. Under S. 13 of this Statute the said Courts so to be erected were to have full power to hear and determine all suits and actions that might be brought against the inhabitants of Madras and Bombay in the manner that should be provided by the said Charter yet nevertheless their inheritance and succession to lands, rents and goods and all matters of contract and dealing between party and party should be determined in the case of Muhammadans by the laws and usages of the Muhammadans and where the parties are Gentoos by the laws and usages of the Gentoos or by such laws and usages as the same would have been determined by if the suit had been brought and the action commenced in a native Court and where one of the parties shall be a Muhammadan or Gentoo by the laws and usages of the defendant. By Charter 38, Geo. III Recorder's Courts were established at Madras and Bombay. Similar provisions preserving the personal laws are to be found in this Charter as in statute 37 Geo. III C. 142. Then Statute 4 Geo. IV C. 7 authorised the Crown to establish Supreme Courts at Bombay and Madras. By Charter 4 Geo. IV the Supreme Court was established at Bombay in 1823. All the powers of the Mayor's Court and Recorder's Court were conferred on it. The provision as to applicability of the personal law was same as before. It may be argued that the powers of the Supreme Courts of Madras and Bombay in the matter of application of personal laws were larger than those of the Supreme Court at Calcutta, for the Supreme Court at Madras and Bombay were also empowered to decide cases according to such laws or usages as would have been applied if the suit had been brought in a Native Court. 13. It will be convenient here to refer to the laws that were being administered by the Moffusil Courts in India established by the East India Company. Under Bengal Regulation 3 [III] of 1793, S. 7, all natives and other persons not British subjects were amenable to the jurisdiction of the Zilla and City Courts. 13. It will be convenient here to refer to the laws that were being administered by the Moffusil Courts in India established by the East India Company. Under Bengal Regulation 3 [III] of 1793, S. 7, all natives and other persons not British subjects were amenable to the jurisdiction of the Zilla and City Courts. Under S. 8 the Zillah and City Courts were empowered to take cognizance of all suits and complaints respecting the succession or right to real or personal property, land rents, revenues, debts, accounts, contracts, partnerships, marriage, caste, claims to damage for injuries and generally all suits and complaints of civil nature in which the defendants a native or other person not British subject provided the land to which the suit related was situated or in all other cases the cause of action arose or the defendant at the time of the commencement of the suit resided within the limits of the Court. 14. Under Regn. 4 [IV] of 1793, passed on the same day the Zillah and City Courts were enjoined to give judgment according to justice and right. Under S. 15 of this Regulation in suits regarding succession, inheritance, marriage and caste and all religious usages and institutions, the Muhammadan law with regard to the Muhammadans and the Hindu law with regard to Hindus were to be considered as the general rules by which the Judges were to form their decisions. This provision was reiterated in S. 16 of Regn. 3 [III] of 1803. Section 9 of Bengal Regn. 7 [VII] of 1832 provided that whenever in any civil suit the parties to the suit might be of different pursuasions when one party should he of the Hindu and the other of the Muhammadan pursuasion or where one or more of the parties to the suit should not be either of the Hindu or Muhammadan pursuasion the law of his pursuasion should not be permitted to operate to deprive such party or parties of any property to which, but for the operation of such laws, they should have been entitled. In all such cases the decision should be governed by the principles of justice, equity and good conscience, it being clearly understood, however, that these provisions should not be considered as justifying the introduction of the English or any foreign law or the application to such cases of any rules not sanctioned by those principles. Reference may here be made to S. 37, Bengal Agra and Assam Civil Courts Act (12 [XII] of 1887), which is now in force. It is as follows :- 37. (i) Where in any other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritance, marriage or caste or any religious usage or institution, the Mahomedan law in cases where the parties are Mahomedans and the Hindu law in cases where the parties are Hindus shall form the rule of decision except in so far as such law has, by legislative enactment, been altered or repealed. (ii) In cases not provided for by sub-s. (i) or by any other law for the time being in force, the Court shall act according to justice, equity and good conscience. 15. As regards the Mofussil Courts in Bombay and Madras Presidencies they were governed by Bombay Regn. 4 [IV] of 1827 and Madras Regn. 2 [II] of 1802. On a comparison of the provisions relating to the laws to be administered by the Supreme Court of Calcutta and the laws to be administered by the Supreme Courts of Bombay and Madras and those to be administered by the Company's Courts in the Mofussil and the Sudder Dewanny Adawlut hearing appeals therefrom it will appear that the laws to be administered by the Supreme Court at Calcutta were the rules of English law and rules of equity and the rules, ordinances and regulations made by the Governor General in Council and under S. 17 of 21 Geo. III C. 70 the Muhammadan law in case where both the parties were Muhammadans or the Gentoo law in case where both the parties were Gentoos or the law of the defendant where one of the parties was a Muhammadan or Gentoo. III C. 70 the Muhammadan law in case where both the parties were Muhammadans or the Gentoo law in case where both the parties were Gentoos or the law of the defendant where one of the parties was a Muhammadan or Gentoo. It should be noticed, however, that only the personal laws of the Muhammadans and Gentoos were expressly preserved and that only in matters relating to inheritance and succession to lands, rents and goods and in matters of contract and dealing between party and party and the Supreme Court of Calcutta was empowered to administer those two personal laws in those specified matters only when persons subject to those personal laws were parties to the suit. No other personal law was preserved and the Supreme Court of Calcutta was not empowered to administer any other personal law, e. g., the personal laws of the Armenians or Parsees or Jews. The Supreme Courts of Bombay and Madras under S. 13 of 37 Geo III C. 142 were enjoined to administer in those matters the Muhammadan law or Gentoo law where parties were Muhammadans or Gentoos and in other cases the law which would have been applied to the case if it had been filed in the native Courts. Thus, the powers of the Supreme Courts of Bombay and Madras may be said to have been extended to the application of all personal laws, e. g., of Parsees, Armenians and Jews, although they were limited to the several specified matters, namely to matters of inheritance and succession to lands, rents and goods and matters of contract or dealing between party and party. On the other hand the Mofussil Courts under their Regulations freely administered the Muhammadan law where both the parties were Muhammadans or the Hindu law where both the parties were Hindus and in all other cases they applied what they considered to be rules of justice, equity and good conscience. The only prohibition enjoined on those Courts was that they were not to import any English or foreign law. The only prohibition enjoined on those Courts was that they were not to import any English or foreign law. It was, therefore, open to and easy for the Mofussil Courts to apply, not only in some matters but in all matters, the personal laws, not only of Muhammadans and Gantoos but of all communities as principles of justice, equity or good conscience just as the Supreme Court in exercise of its civil jurisdiction let in the English law and equity as rules of justice and right. The Supreme Court of Calcutta, however, could not administer any personal law other than the personal laws of the Muhammadans and the Gentoos in certain specified matters. Attempts were made to introduce the personal laws of other people on the ground that all non-Muhammadans came within the category of "Gentoo" but they were always repelled by the Supreme Court. 16. At this stage reference may be made to a few cases. Thus in (1815) 2 Morley's Digest p. 30, Doe d. Araton Gasper v. Paddolochan Doss (1815) 2 Morley's Digest p. 30 the Supreme Court applied the English law to the case in which one of the parties was an Armenian. In Clerk's Addl. cases 56, Jebb v. Lefevre Clerk's Addl. cases 56 the English law was applied to the Portuguese by the Supreme Court. 17. In (1844) 1 Fulton's Rep. p. 420 Musleah v. Musleah (1844) 1 Fulton's Rep. p. 420 it was held by Seton J. and Peel C. J., Grant J. dissenting, that the succession to land situate in the Moffusil and belonging to a Jew who was an inhabitant of Calcutta at the time of his death would in a suit in the Supreme Court of Calcutta be regulated by the English law. In course of his judgment Seton J. observed as follows : It has been decided by the Court of Chancery in England, that lands in the Mofussil, part of a zemindary, and held by pottahs, are of a quasi freehold tenure, (1819) 1 Jac. & W. 22 Gardiner v. Fell (1819) 1 Jac. & W. 22. In that case the lands belonged to a British subject; but the decision did not proceed on that ground but on the nature of the tenure. A similar decision has been made by this Court in the case of Armenians, (1819) 1 Jac. & W. 22 Gardiner v. Fell (1819) 1 Jac. & W. 22. In that case the lands belonged to a British subject; but the decision did not proceed on that ground but on the nature of the tenure. A similar decision has been made by this Court in the case of Armenians, (1819) 1 Jac. & W. 229 Emin v. Emin (1819) 1 Jac. & W. 229, a decision which must have proceeded not on the ground of any personal law applicable to the parties as British subjects, this Court having no jurisdiction to administer the personal law of the parties except in the case of Hindus and Mahomedans, but on the ground that the parties and the property being alike subject to the jurisdiction, and the parties not being within the exception, the English was the only law which the Court was competent to administer between them. For this purpose there can be no distinction between Jews and Armenians, neither being within the excepted classes. The law of England makes no distinction between Jews and other persons, except as to their laws of marriage, and as to certain incapacities for office. Their law of descent must be governed by the tenure of the lands to which it is incident, and where this is quasi freehold, as it is found to be by the decisions of this Court and those of the Court of Chancery which are binding on it, the law of primogeniture must prevail. If the lands in question had been held by any customary tenure subject to the Jewish law of descent, the case might have been different. But there is no allegation of any such custom, and, consequently, the ordinary rule must prevail. 18. The learned Judge concluded his judgment with the following observations : With respect to any supposed anomaly arising from the decision of this Court being different from what would be that of the Mofussil Courts upon this point, it is to be considered how far this anomaly would be removed by holding that lands belonging to the same individual, and held by the same tenure within and out of Calcutta, were subject by the same Court to different rules of descent. But anomalies of this sort are considerations not for Courts of Justice but for the Legislature. But anomalies of this sort are considerations not for Courts of Justice but for the Legislature. Grant J. agreed that as regards the real property in Calcutta the same must descend according to English law but held that property in the Moffusil should descend according to the law of the domicile of origin of the intestate as a rule of justice, equity and good conscience. Peel C. J. observed as follows at page 440: The lands unaffected by any Lex Loci should on one side of a ditch, (and being in no sense extra-territorial) be declared to go in one course of descent by a Court; and that the same Court in the same suit should declare the lands on the other side should go in another course of descent; that it should decide one law for British subjects, and another for Europeans, not of British origin, one law for the Armenian and another for the Jew, and another for the Parsee, and that it should be forced to collect the law on which it is to decide the facts by reference to testimony, all these must be admitted, to be most grave inconveniences; it remains to be considered whether the law, to which this Court is bound to conform, forces them upon us. At page 441 : This case is not affected by any such considerations. There being no special real law, what law is to govern the decision of the case ? I answer the English law, which law alone this Court, except in excepted cases, amongst which this case does not range itself, is empowered to administer. I shall support my view of this case by the consideration of the authorities. 19. Then after reviewing the authorities the learned Chief Justice observed as follows at page 443 : These authorities appear to me to be decisive of the question. The Crown has erected Courts of Justice in India. The Supreme Court of this presidency, one of those Courts, has jurisdiction to try causes relating to lands within the three provinces of Bengal, Bihar and Orissa. Its process goes against them directly. An ejectment lies for them. The Crown has erected Courts of Justice in India. The Supreme Court of this presidency, one of those Courts, has jurisdiction to try causes relating to lands within the three provinces of Bengal, Bihar and Orissa. Its process goes against them directly. An ejectment lies for them. They are sequestered under its decrees, partitioned, redeemed, foreclosed on mortgage suits, receivers appointed for them, in short there is no power which the Court can exercise over lands in Calcutta, which it cannot exercise over lands within the three provinces before mentioned. The local boundaries of Calcutta circumscribe its jurisdiction over persons not over things. The laws by which it is to decide are prescribed. It has no discretionary power, is not a Court of conscience, and must decide by those laws alone which are ordained for it. The general law of the Court is the English law. The exceptions are statutory, and the introduction of those very exceptions proves the general rule. The Courts of the East India Company are concurrent, and not exclusive Courts. Their course is prescribed by regulations. Their constituent authority is the East India Company, ours the Crown. Each must proceed in the course prescribed. The regulations, so far from enjoining a general law, prohibit them from the adoption of any general law, either English or Foreign, as the law of their Court. They are enjoined to proceed according to the principles of justice, equity and good conscience, 'it being clearly understood, however, that this provision shall not be considered as justifying the introduction of the English or any foreign law, or the application to such cases of any rules not sanctioned by those principles'-See Regulation-7 [VII] of 1832, Section 9. Their decision then cannot be viewed as evidence of any general law; and if they were, that law is not only not obligatory on a Court of concurrent jurisdiction for which another course is ordained, but it is not in the power of the latter to adopt it. Finally at page 445 : I think that this Court is bound to decide that the lands in question descend according to the course of the English law. A British subject has no privilege in this Court to have a special law applied to his case. Finally at page 445 : I think that this Court is bound to decide that the lands in question descend according to the course of the English law. A British subject has no privilege in this Court to have a special law applied to his case. The same law applied to all and the law of descent is one and the same for all the suitors of this Court, except Hindus and Mahomedans. 20. The same case came up before the Supreme Court on review after the infant defendant attained majority and those later proceedings are reported in (1856) 1 Boulnoi's Rep. 234 Musleah v. Musleah (1856) 1 Boulnoi's Rep. 234. On this rehearing the earlier decision was confirmed by Colvile C. J. and Buller and Jackson JJ. The case in which the moffusil Courts administered the personal laws of persons other than Muhammadans or Hindus will be found referred to in (1844) 1 Fulton's Rep. 420 Musleah v. Musleah (1844) 1 Fulton's Rep. p. 420 and it is not necessary for me to refer to them in any greater detail. It is enough to say that the moffusil Courts administered all personal laws as rules of justice, equity and good conscience as they had been by their Regulations enjoined to do. 21. The next case that I need deal with is that in 6 M. I. A. 348 Ardaseer Cursetjee v. Perozeboye (1854-57) 6M. I. A. 348 : 10 Moo. P. C. 375 : 1 Suth. 265 : 1 Sar. 548 (P.C.). This was a suit instituted on the ecclesiastical side of the Supreme Court at Bombay by a Parsee wife against her Parsee husband for restitution of conjugal rights and for maintenance. The husband contended that the parties being Parsees that Court had no jurisdiction to administer towards them the ecclesiastical law as at the date of the Charter was used and exercised in the Diocese of London. The husband contended that the parties being Parsees that Court had no jurisdiction to administer towards them the ecclesiastical law as at the date of the Charter was used and exercised in the Diocese of London. It was held by their Lordships of the Judicial Committee that the Supreme Court of Bombay, on its ecclesiastical side had no jurisdiction to entertain such a suit, as there existed such a difference between the duties and obligations of a matrimonial Union among Parsees from that of Christians, that the Court, if it made a decree, had no means of enforcing it, except according to principles governing the matrimonial law in Doctor's Common, which were, in such a case, incompatible with the laws and customs of Parsees. Towards the end of the judgment delivered by the Right Hon. Dr. Lushington it was observed as follows : For the reasons we have stated, we think that a suit for the restitution of conjugal rights, strictly an Ecclesiastical proceeding, could not, consistently with the principles and rules of Ecclesiastical law, be applied to parties who profess the Parsee religion; but we should much regret if there were no Court and no law whereby a remedy could be administered to the evils which must be incidental to married life amongst them. We do not pretend to know what may be the duties and obligations attending upon the matrimonial union between Parsees, nor what remedies may exist for the violation of them, but we conceive that there must be some laws, or some customs having the effect of laws, which apply to the married state of persons of this description. It may be that such laws and customs do not afford what we should deem, as between Christians, an adequate relief; but it must be recollected that the parties themselves could have contracted for the discharge of no other duties and obligations than such as, from time out of mind, were incident to their own caste, nor could they reasonably have expected more extensive remedies, if aggrieved, than were customarily afforded by their own usages. Such remedies we conceive that the Supreme Court on the civil side might administer, or at least remedies as nearly approaching to them as circumstances would allow. In suits commenced on the civil side, the peculiar difficulties which belong to the exercise of Ecclesiastical jurisdiction in some matrimonial cases would not, arise. Such remedies we conceive that the Supreme Court on the civil side might administer, or at least remedies as nearly approaching to them as circumstances would allow. In suits commenced on the civil side, the peculiar difficulties which belong to the exercise of Ecclesiastical jurisdiction in some matrimonial cases would not, arise. Proceedings might be conducted on the civil side with such adaptation to the circumstances of the case as justice might require, though on the Ecclesiastical side such modification would be wholly irreconcilable with Ecclesiastical law. We have been led to make these observations, not merely by general considerations, but more particularly by the case in 2 Borr. Bon. Sud. Dew. Rep. 209 Mihirwanjee Nuoshirwanjee v. Awan Baee 2 Borr. Bon. Sud. Dew Rep. 209. That case shows that the Sudder Adawlut at Bombay will take cognizance of matrimonial suits between Parsees, and will afford them such relief as a due regard to their own laws and customs will allow; it also proves, as indeed must be expected, that those laws and customs are wholly at variance with the principles which govern the matrimonial law of the Diocese of London, and incompatible with the Ecclesiastical law, as in such cases is administered. One instance will suffice. It appears that, under many circumstances, the husband is permitted to take a second wife, the first being alive. 22. It is unfortunate that while making the above comparison their Lordships did not advert to the statutory difference in the laws to be administered by the two Courts, the Supreme Court of Bombay and the Sudder Dewany Adawlut of Bombay which I have tried to show above. It is true that the Supreme Court of Bombay on its civil side could entertain all civil suits but its powers in the matter of the law to be administered by it were restricted. It could not administer any personal law except in certain specified matters. The Moffusil Courts were not so fettered and the Sudder Dewany Adawlut hearing appeals from Moffusil Courts were equally free to administer any personal law in all matters as principles of justice, equity and good conscience. This important distinction was not pointed out by their Lordships when they suggested that the Supreme Court on its civil side might entertain such suits and give such remedies as the personal laws of the Parsees would entitle them to have. This important distinction was not pointed out by their Lordships when they suggested that the Supreme Court on its civil side might entertain such suits and give such remedies as the personal laws of the Parsees would entitle them to have. The difference is stronger in the case of the Supreme Court of Calcutta and the Sudder Dewany Adawlut of Calcutta, for the Supreme Court of Calcutta was authorised to administer only the personal laws of Muhammadans and Gentoos and of no other community and that only in certain specified matters, while the Sudder Dewany Adawlut of Calcutta could freely administer all personal laws in all matters as principles of justice, equity and good conscience. Therefore the recommendations of their Lordships could only be carried out by amending the law. 23. However, while the judicial decisions were in the aforesaid state there came the Indian High Courts Act of 1861 (24 and 25 Vic. C. 104). It authorised Her Majesty by Letters Patent to erect a High Court of Judicature at Fort William in Bengal and like High Courts at Madras and Bombay. It provided that upon the establishment of the High Courts the Supreme Court and the Court of Sudder Dewany Adawlut and Sudder Nizamut Adawlut at Calcutta and the corresponding Courts at Madras and Bombay would be abolished. Under S. 9 of this Act each of the High Courts to be so established should have and exercise all such civil, criminal, admiralty, testamentary, intestate and matrimonial jurisdiction and original and appellate, and all such powers and authority for and in relation to the administration of justice in the Presidency for which it is established, as Her Majesty might by such Letters Patent as aforesaid grant and direct, subject, however, to such directions and limitations as to the exercise of original civil and criminal jurisdiction beyond the limits of the Presidency towns as might be prescribed thereby; and, save as by such Letters Patent might be otherwise directed, and subject and without prejudice to the legislative powers in relation to the matters aforesaid of the Governor-General of India in Council, the High Court to be established in each presidency should have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of abolition of such last mentioned Courts. Section 11 made all existing provisions then in force in India of Acts of Parliament, Orders of Her Majesty in Council and Acts of Indian Legislature which applied to the Supreme Court applicable to the High Court, so far as the same might be consistent with the provisions of this Act and the Letters Patent to be issued. Thus save as might be otherwise directed by the Letters Patent to be issued the High Court to be established in any Presidency was to be successor of the jurisdiction and powers not only of the Supreme Court but also of the Sudder Dewany Adawlut and Sudder Nizamut Adawlut of that Presidency. One would think that this meant that in exercise of its civil jurisdiction the High Court will have power and jurisdiction to apply the personal laws of all communities as principles of justice, equity and good conscience. It may be that Parliament was giving effect to the suggestions of the Judicial Committee made in 6 M. I. A. 348 Ardaseer Cursetjee v. Perozeboye (1854-57) 6M. I. A. 348 : 10 Moo. P. C. 375 : 1 Suth. 265 : 1 Sar. 548 (P.C.). This provision was, however, made subject to the provisions of the Letters Patent to be issued. It is, therefore, necessary to see whether the Letters Patent which Her Majesty was authorised by this Act to issue in any way modified this result. 24. The Letters Patent of 1862 established this High Court. Clauses 11 to 17 conferred civil jurisdictions on this High Court, namely, ordinary original, extraordinary original, appellate, infancy and lunacy and insolvency jurisdictions. Clauses 18 to 20 laid down the law to be administered by this High Court in civil cases. Thus, under cl. 18 such law or equity was to be applied by this High Court in its ordinary original civil jurisdiction to each case as would have been applied to it by the Supreme Court of Calcutta. Clause 19 ordained that such law or equity and rule of good conscience should be applied by this High Court in the exercise of its extraordinary original civil jurisdiction to each case as would have been applied to it by the local Court having jurisdiction. Clause 19 ordained that such law or equity and rule of good conscience should be applied by this High Court in the exercise of its extraordinary original civil jurisdiction to each case as would have been applied to it by the local Court having jurisdiction. Clause 20 ordained that such law or equity and rule of good conscience should be applied by this High Court in its appellate jurisdiction to each case as would have been applied to it in the Court in which it was instituted. It will thus be seen that these Letters Patent took this High Court back to the position of the Supreme Court of Calcutta in the matter of the laws to be administered by it in exercise of its original civil jurisdiction. Like, wise the corresponding provisions of the Letters Patents which established the High Courts at Bombay and Madras enjoined those High Courts to administer the same laws as used to bo administered by the respective Supreme Courts of those Presidencies. In this connexion reference may be made to the despatch from the Secretary of State to the Governor-General in Council dated 14th May 1862 and in particular to paras. 17 and 34 thereof which are as follows : 17. The terms of cl. 12, defining the original jurisdiction of the High Court as to suits, are nearly similar to those employed in S. 5, Civil P. C., (Act 8 [VIII] of 1859), and are intended to include every description of case over which the Mofussil Courts have jurisdiction. By the 8th section of the 21st George III, C. 70, the Supreme Court is precluded from exercising any jurisdiction in any matter concerning the revenue. Further, a decision of the Judicial Committee of the Privy Council, pronounced in April 1856, ruled against the exercise of the Ecclesiastical Jurisdiction of the Supreme Court in matters matrimonial between others than Christians, and even expressed some hesitation as to whether that Court should administer a remedy in such cases on the civil side. It is one object of the present Charter to do away with all such restrictions and limitations, as far as this can be done without trenching on the proper province of legislation. It is one object of the present Charter to do away with all such restrictions and limitations, as far as this can be done without trenching on the proper province of legislation. It has, therefore, been sought to invest the High Court, in the exercise of its original civil jurisdiction, with a sample powers in receiving and determining cases of every description, and in applying a remedy to every wrong as are exercised by the Courts not established by Royal Charter, and thus to place the Courts of first instance in the Presidency Towns and in the interior of the country in this respect, as nearly as may be, on the same footing. 34. The object of the proviso at the end of clause 35 is to obviate any doubt that may possibly arise as to whether by vesting the High Court with the powers of the Court for Divorce and Matrimonial causes in England, it was intended to take away from the Courts within the divisions of the Presidency not established by Royal Charter any jurisdiction which they might have in matters matrimonial, as for instance, in a suit for alimony between Armenians or Native Christians. With any such jurisdiction it is not intended to interfere. 25. In my humble opinion, however, these Letters Patent did not really succeed, in giving full effect to the recommendations of the Judicial Committee made in 6 M. I. A. 348 Ardaseer Cursetjee v. Perozeboye (1854-57) 6M. I. A. 348 : 10 Moo. P. C. 375 : 1 Suth. 265 : 1 Sar. 548 (P.C.) to which I have referred and which is referred to in para. 17 of the Secretary of State's Despatch. In fact what was sought to be achieved by Ss. 9 and 11 of the High Courts Act, 1861 was, effectually nullified by cl. 18 of these Letters Patent. A perusal of Cl. 18 of these Letters Patent will clearly show that this High Court in exercise of its ordinary original civil jurisdiction was authorised to apply only such law or equity as would have been applied by the Supreme Court of Calcutta and that was, as we have seen, nothing but English law and rules of Equity and Indian enactments, with a reservation in favour of the Hindu and Muhammadan laws only in certain matters as mentioned in 21st Geo. III C. 70, S. 17. III C. 70, S. 17. Thus although the jurisdiction of this High Court in exercise of ordinary original civil jurisdiction was by Cls. 11 and 12 made flexible and enlarged yet in the matter of the laws to be administered by it in exercise of its ordinary original civil jurisdiction it was relegated to the position of the Supreme Court of Calcutta. This statutory restriction cannot be ignored and must be recognised and accepted by the Court. The result may be paradoxical but it appears to be that a Court was found to entertain all civil suits but that Court was not provided with all the necessary laws. 26. These Letters Patent of 1862 were replaced by the Letters Patent of 1865. The scheme of these Letters Patent is similar to those of 1862. Clauses 19 to 21, Letters Patent of 1865 correspond to Cls. 18 to 20 of that of 1862. No material alteration was made in any of these clauses. Under Cl. 19, Letters Patent of 1865, this High Court in exercise of its ordinary original civil jurisdiction is empowered to apply such law or equity as would have been applied by the High Court if these Letters Patent had not been issued. This throws us back to the Letters Patent of 1862, cl. 18 of which again throws us further back to the Indian High Courts Act, 1861, and thence to the Act of Settlement 1781 21st Geo. III C. 70 the provisions of which including those of S. 17 I have summarised above. In my opinion, therefore, this High Court even after the Letters Patent of 1865 had no power to apply any personal law other than those of Muhammadans and Hindus in certain specified matters only and had to apply the English law and equity and the enactments made by the Governor-General in Council. The legislative powers of the Governor-General in Council were preserved by Cl. 44, Letters Patent of 1865. 27. In the same year when these Letters Patent of 1865 were issued, the Parsee Marriage and Divorce Act and the Parsee Intestate Succession Act were passed. The legislative powers of the Governor-General in Council were preserved by Cl. 44, Letters Patent of 1865. 27. In the same year when these Letters Patent of 1865 were issued, the Parsee Marriage and Divorce Act and the Parsee Intestate Succession Act were passed. If the High Courts Act, 1861, the Letters Patent of 1862 and the Letters Patent of 1865 empowered the High Court to administer all the personal laws of the Parsees, Jews and Armenians in exercise of its ordinary original civil jurisdiction then there would seem to be no reason for so quickly bringing those Acts on the Statute Book. The Indian Succession Act was also passed in the same year 1865. The Jews were held to be governed by that Act : see 1 Cal. 148 Gabriel v. Mordakai ('75) 1 Cal 148. This also shows that the personal laws of the Jews were not recognised at any rate as regards testamentary and intestate succession. In chap. 3 of the second edition of Sir Courtney Ilbert's book on the Government of India published in 1907 will be found a digest of statutory enactments then in force relating to the Government of India with marginal reference in square brackets indicating the enactments reproduced. Part IX of the Digest dealt with the Indian High Courts under several headings namely "constitution," "jurisdiction," "law to be administered" and "Advocate-General" Paragraph 108 under the heading "Law to be administered" was as follows: Subject to any law made by the Governor-General in Council the High Courts, in the exercise of their Original Jurisdiction, shall, in matters of inheritance and succession to lands, rents, and goods, and in matters of contract and dealing between party and party, when both parties are subject to the same personal law or custom having the force of law, decide according to that personal law or custom and when the parties arc subject to different personal laws or custom having the force of law, decide according to the law or custom to which the defendant is subject. 28. This para. 108 purported to reproduce the provisions of 21 Geo. III C. 70, S. 17 and 37 Geo. III C. 142, S. 13. On a reference to 21 Geo. 28. This para. 108 purported to reproduce the provisions of 21 Geo. III C. 70, S. 17 and 37 Geo. III C. 142, S. 13. On a reference to 21 Geo. III C. 70, S. 17 which I have summarised above it will appear, as I have already said, that only the personal law of the Muhammadans and Gentoos in certain cases were to be administered by the Supreme Court of Judicature at Fort William. Therefore this para. 108 in chap. 3 of Sir Courtney Ilbert's book, so far as it purported to reproduce the provisions of S. 17 of 21 Geo. III C. 70 appears to be too wide and general and not warranted by the language of that Statute. It overlooked the provisions of Cl. 19, Letters Patent of 1865 and Cl. 18, Letters Patent of 1862 to which I have referred in some detail and I am not prepared to accept para. 108 of Chap. 3 of Sir Courtney Ilbert's book as a correct statement of the law then in force, so far as the Supreme Court of Fort William or this High Court is concerned. It may he a correct statement of the law so far as the Supreme Courts and the High Courts of Bombay and Madras are concerned. 29. In 1911 the case in 38 Cal. 708 Mozelle Joshua v. Sophie Arakie ('11) 38 Cal, 708 : 12 I. C. 485 came before Harrington J. sitting on the Original Side of this Court. That was a suit by a Jewish widow to enforce her claim to a sum of Rs. 10,555 settled by way of dower under the Jewish law in terms of her marriage contract called "Ketubah" and for a declaration that she was entitled to that sum in priority to the other creditors of her deceased husband who had died intestate leaving debts exceeding his assets. Gentlemen of Jewish Persuasion gave evidence as to the effect of the document "Ketubah" amongst them. Harrington J. held that a "Ketubah" did not create any charge in favour of a widow against her deceased husband's estate but that it gave a right enforceable by an innocent wife when she was divorced by her husband. Mr. Hyam appearing for the defendant did take the point that this Court had no jurisdiction to administer the Jewish law and relying on (1844) 1 Fulton's Rep. Mr. Hyam appearing for the defendant did take the point that this Court had no jurisdiction to administer the Jewish law and relying on (1844) 1 Fulton's Rep. 420 Musleah v. Musleah (1844) 1 Fulton's Rep. p. 420 contended that the document in question should be construed according to the law of British India. In the judgment I find no reference whatever to this argument. Harrington J. dealt with the evidence and proceeded on the construction of the "Ketubah" and based his decision on the following grounds, namely (i) that he did not believe the Ketubah intended to create any charge; (ii) that while all the witnesses agreed that it gave rights to the wife in the event of a divorce, every witness said that no case had ever occurred in which it had been contended that it gave any other right to the widow until the present suit; and (iii) that there was evidence that, where it was desired to settle the property on the wife notwithstanding the existence of a Ketubah a marriage settlement was executed. In the result the suit was dismissed. The defendant did not suffer any injury by reason of the point of law raised by counsel not being decided. 30. There was an appeal from the judgment of Harrington J. and the judgment of the Court on appeal consisting of Jenkins C. J. and Woodroffe J. will be found reported in 40 Cal. 266 Mozelle Joshua v. Sophie Arakie ('13) 40 Cal. 266 : 18 I. C. 132. After the appeal was opened an adjournment was granted to enable the parties to adduce further evidence in the shape of appropriate books of reference or affidavits of acknowledged authorities in support of their rival contentions, which was done. Again I find that learned counsel for the defendant respondent took the point, relying on (1844) 1 Fulton's Rep. 420, Musleah v. Musleah (1844) 1 Fulton's Rep. p. 420 that the Court had no jurisdiction to administer the Jewish law. Again I find that this point was not dealt with by Jenkins C. J. in his judgment. The learned Chief Justice on a consideration of the materials on record held that the Ketubah was a necessary but formal incident of the marriage contract and ceremonial but created no such right as claimed by the plaintiff and dismissed the appeal. Again I find that this point was not dealt with by Jenkins C. J. in his judgment. The learned Chief Justice on a consideration of the materials on record held that the Ketubah was a necessary but formal incident of the marriage contract and ceremonial but created no such right as claimed by the plaintiff and dismissed the appeal. It is quite clear that both the trial Court and the appeal Court allowed evidence of Jewish law to be adduced and decided the case on the evidence so adduced before them. Ordinarily I would be bound by the decision of the Court on appeal but in the face of the express words of the Statute and Charter I have referred to and the clear enunciation of the legal position in (1844) 1 Fulton's Rep. 420 Musleah v. Musleah (1844) 1 Fulton's Rep. p. 420 I find it difficult to regard this case as a positive and affirmative authority for the proposition that this Court in the exercise of its ordinary original civil jurisdiction under the Letters Patent of 1865 was empowered to administer the personal laws of the Jews where the parties were of Jewish persuasion. I rather think that, in the view the learned Judges took of the evidence and the meaning of the Ketubah on a true construction thereof, it was unnecessary for them to deal with the broader general proposition as to the applicability of Jewish law to that case that was raised by learned counsel for the defendant in that case. 31. Paragraph 108 of Chapter III of the third edition of Sir Courtney Ilbert's book on the Government of India which was published in 1915 reproduced verbatim para. 108 of Chapter III of the second edition of his book. I have already said that in my opinion this paragraph was somewhat wider than the provisions it purported to reproduce, so far as this Court was concerned. Then came the Government of India Act, 1915. Part IX of this Act, dealt with the Indian High Courts. The scheme of Part IX of this Act, followed the scheme of Part IX of Chapter III of Sir Courtney Ilbert's book. Section 101 (1) of this Act provided that the High Courts referred to in this Act are the High Courts of Judicature for the time being established in British India by Letters Patent. The scheme of Part IX of this Act, followed the scheme of Part IX of Chapter III of Sir Courtney Ilbert's book. Section 101 (1) of this Act provided that the High Courts referred to in this Act are the High Courts of Judicature for the time being established in British India by Letters Patent. Section 106 (1) was as follows : The several High Courts are Courts of Record and have such jurisdiction, Original and Appellate including Admiralty jurisdiction in respect of offence committed on the high seas, and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers of the Court, and power to make rules for regulating the practice of the Court, as are vested in them by Letters Patent, and subject to the provisions of any such Letters Patent, all such jurisdictions, powers and authority as are vested in those Courts respectively at the commencement of this Act. 32. Section 112 under the heading "Law to be administered" provided as follows : The High Courts at Calcutta, Madras and Bombay in the exercise of their original jurisdiction in suits against inhabitants of Calcutta, Madras or Bombay, as the case may, shall, in matters of inheritance and succession to lands, rents and goods, and in matters of contract and dealing between party and party, when both parties are subject to the same personal law or custom having the force of law, decide according to that personal law or custom, and when the parties are subject to different personal laws or customs having the force of law, decide according to the law or customs to which the defendant is subject. The last mentioned section appears to have been bodily taken from para. 108 of Sir Courtney Ilbert's book. The result of these provisions appears to be that each High Court has all the jurisdictions, powers and authorities given to it by the respective Letters Petent relating to it. Therefore this High Court in exercise of its ordinary original civil jurisdiction under Cl. 19, Letters Pattent of 1865 read with Cl. 108 of Sir Courtney Ilbert's book. The result of these provisions appears to be that each High Court has all the jurisdictions, powers and authorities given to it by the respective Letters Petent relating to it. Therefore this High Court in exercise of its ordinary original civil jurisdiction under Cl. 19, Letters Pattent of 1865 read with Cl. 18, Letters Patent of 1862 is still enjoined to administer the same law and equity as the Supreme Court of Calcutta was enjoined to administer subject to this qualification that under S. 112 of this Act, each of the High Courts in exercise of its ordinary original civil jurisdiction was enjoined, in matters of inheritance and succession to lands, rents and goods and in matters of contract and dealing between party and party, when both parties are subject to the same personal law or custom having the force of law, to apply that law and, when the parties are subject to different personal laws or customs to apply the law or custom to which the defendant is subject. Thus the personal law or custom of all communities can now, in the specified matters, be applied, whereas previously only the personal law and custom of Muhammadans and Gentoos in those specified matters could be applied by this High Court in the exercise of its ordinary original civil jurisdiction. It will be noticed, however, that the specified matters are matters of inheritance and succession to lands, rents and goods and contracts and dealing between party and party. Marriage and caste and religious usages and institutions which were included in the Regulations governing the moffusil Courts were not included in the Act of Settlement in connection with Hindu or Muhammadan laws and are not included in the matters specified in the Government of India Act 1915. Marriage and caste and religious usages and institutions which were included in the Regulations governing the moffusil Courts were not included in the Act of Settlement in connection with Hindu or Muhammadan laws and are not included in the matters specified in the Government of India Act 1915. Therefore personal law relating to marriage or caste or religions usages and institutions of none of the communities are even now to be recognised by any of the High Courts in exercise of its original civil jurisdiction except in so far as they may be material for the purpose of determining matters of inheritance and succession to lands, rents and goods and contract and dealing between party and party In this respect the moffusil Courts of Bengal have wider power to apply, as principles of justice, equity and good conscience, the personal laws of all communities in all matters under S. 37. Bengal Agra and Assam Civil Courts Act of 1887 and this Court, in exercise of its civil appellate jurisdiction, under Cl 21, Letters Patent of 1865 is empowered to apply the same personal law of marriage and caste of all communities. 33. The case in 50 Bom. 369 Rachel Benjamin v. Benjamin Solomon ('26) 13 A. I. R. 1926 Bom. 169: 50 Bom. 369 94 I. C. 59 was a case instituted in the Original Side of the Bombay High Court by a Jewish wife against her Jewish husband for dissolution of her marriage on grounds of adultery and cruelty and for recovery of the amount specified in the Ketubah and for maintenance. The defendant husband denied the allegations of cruelty and asserted that his second marriage was valid and that the Court had no jurisdiction to entertain a suit of this nature between parties professing the Jewish faith. Crump J. held that Jewish law was applicable and gave relief to the plaintiff. The learned Judge referred to the observations and suggestions made by their Lordships of the Privy Council in 6 M. I. A. 348 Ardaseer Cursetjee v. Perozeboye (1854-57) 6M. I. A. 348 : 10 Moo. P. C. 375 : 1 Suth. 265 : 1 Sar. Crump J. held that Jewish law was applicable and gave relief to the plaintiff. The learned Judge referred to the observations and suggestions made by their Lordships of the Privy Council in 6 M. I. A. 348 Ardaseer Cursetjee v. Perozeboye (1854-57) 6M. I. A. 348 : 10 Moo. P. C. 375 : 1 Suth. 265 : 1 Sar. 548 (P.C.) and the Despatch of the Secretary of State accompanying the Letters Patent of 1862 and certain clauses of those Letters Patent and concluded that since 1862 the High Court of Bombay in exercise of its ordinary original civil jurisdiction under Clause 12, Letters Patent of 1862 was empowered to administer the Jewish law of marriage in a matrimonial suit between Jewish parties filed on the original side of that High Court. With great respect I am unable to support this decision on the broad and general ground on which it is based. Curiously enough the learned Judge did not even refer to all the relevant clauses of the Letters Patent of the Bombay High Court which dealt with the laws to be administered by that High Court in exercise of its ordinary original civil jurisdiction. With the utmost respect to the learned Judge I am constrained to say that the learned Judge failed to notice that under the Letters Patent of the Bombay High Court the law and equity to be administered by that High Court in the exercise of its ordinary original civil jurisdiction were the same as those which used to be administered by the Supreme Court of Bombay, under Statute 37 Geo. III C. 142 S. 13 and the Charter establishing the Supreme Court of Bombay, namely English law and equity as modified by Indian Acts and with a reservation in favour of the personal laws of Muhammadans and Gentoos and others in certain matters only. The learned Judge also failed to notice that statute 37 Geo. III C. 142 S. 13 which let in all personal laws did so only in respect of certain specified matters and did not authorise the High Court of Bombay in exercise of its ordinary original civil jurisdiction to administer the personal law of marriage of any community except perhaps in so far as such personal law was material for determining the specified matters. In my humble opinion the learned Judge overlooked the fact that in spite of the weighty observations and recommendations of the Privy Council and the observations of the Secretary of State in his Despatch, the Letters Patent of the Bombay High Court or even the Government of India Act 1915 did not bring about any change in the law to be administered by the High Court of Bombay in the exercise of its ordinary original civil jurisdiction. 34. The two cases referred to by the learned Judge, namely 10 Bom. 301 Dadaji Bhikaji v. Rukmabai ('86) 10 Bom. 301 (a Hindu case) and 21 Bom. 77 A v. B ('97) 21 Bom. 77 (a Muhammadan case) proceeded no the ground that since the expression of opinion by the Privy Council in 6 M. I. A. 348 Ardaseer Cursetjee v. Perozeboye (1854-57) 6M. I. A. 348 : 10 Moo. P. C. 375 : 1 Suth. 265 : 1 Sar. 548 (P.C.) the civil courts of this country should afford remedies for the evils incidental to married life. The aspect of the matter which I am emphasising was not adverted to at all. With great respect to the learned Judge I am bound to point out that he proceeded not on what the law was but what it should be. This, in my opinion, was the province of the Legislature. In my judgment the decision of Crump J. cannot be supported except on the basis that Jewish marriage is purely a matter of contract only and the Jewish marriage laws are laws of contract. In any event so far as our High Court is concerned it has inherited the powers and jurisdictions of the Supreme Court of Calcutta which under S. 17 of statute 21 Geo. III C. 70 was authorised to administer the personal laws to the Muhammadans and Gentoos in certain specified matters and of no other community. The Letters Patent of 1862 or those of 1865 did not bring about any change in this respect. It is only after the Government of India Act, 1915, that this High Court in exercise of its ordinary original civil jurisdiction can apply all personal laws but it can do so only in certain matters. The Letters Patent of 1862 or those of 1865 did not bring about any change in this respect. It is only after the Government of India Act, 1915, that this High Court in exercise of its ordinary original civil jurisdiction can apply all personal laws but it can do so only in certain matters. If the Letters Patent of 1862 and of 1865 did not allow any personal laws other than those of Muhammdans and Hindus to be applied at all, if the Government of India Act, 1915, did not allow the application of any personal law to any matter not specified therein it is not for this Court to apply the same. The powers and jurisdictions of this Court are defined by Statutes and Charters and the powers and jurisdictions of the moffusil Courts of Bengal are likewise well defined by their Regulations and now by the Act of 1837. It is not good logic at all to argue that because the moffusil Courts administer all personal laws in all matters, therefore the High Court must have the power to administer all personal laws on all matters. Each Court is bound by the Statutes or Regulations constituting it and cannot go beyond them. In my opinion, the reasoning that held good when (1844) 1 Fulton's Rep. 420 Musleah v. Musleah (1844) 1 Fulton's Rep. p. 420 had been decided equally holds good today. If any change in the law is necessary it is for the Legislature to bring about such change. In the face of the clear enunciation of the law made in (1844) 1 Fulton's Rep. 420 Musleah v. Musleah (1844) 1 Fulton's Rep. p. 420 and re-iterated in the same case on review reported in (1856) 1 Boulnoi's Rep. 234, as to the law which was to be applied by the Supreme Court of Calcutta and in view of the provisions of Cl. 19, Letters Patent of 1865 read with Cl. 18, Letters Patent of 1862 I cannot hold that this Court in exercise of its ordinary original civil jurisdiction could, before the Government of India Act, 1915, administer any personal law other than the personal laws of the Muhammadans and the Gentoos in certain specified matters. 19, Letters Patent of 1865 read with Cl. 18, Letters Patent of 1862 I cannot hold that this Court in exercise of its ordinary original civil jurisdiction could, before the Government of India Act, 1915, administer any personal law other than the personal laws of the Muhammadans and the Gentoos in certain specified matters. Since 1915, this High Court in exercise of its ordinary original civil jurisdiction has been empowered to apply all personal laws but only in certain specified matters and in no other matter. 34 C. W. N. 319 : 57 Cal. 1089 R. K. Samuel v. F. H. T. Samuel ('30) 17 A. I. R. 1930 Cal. 558 : 57 Cal. 1089 : 127 I. C. 559 : 34 C. W. N. 319 was a suit brought by a Jewish wife against her Jewish husband for judicial separation. Panckridge J. refused to make an order for payment of costs to the wife on an application by the wife. I gather this suit was ultimately settled and there was no decision of the Court as to the applicability of the Jewish law. 35. The next case where the applicability of Jewish law was considered is that reported under the heading In the Goods of Saran Ezra ('31) 18 A. I. R. 1931 Cal. 560 : 58 Cal. 761 : 134 I. C. 443. This was an application for letters of administration by the brother of the deceased. The illegitimate son of the deceased entered a caveat and amongst other things contended that under the Jewish law he was entitled to the estate of her mother. Panckridge J. held that under the Charters and Letters Patent English law applied until the Succession Act was passed in 1865 and that since then the Jews are governed by that Act. In that case this Court was exercising testamentary jurisdiction and not ordinary original civil jurisdiction and presumably, therefore, learned counsel for the caveator conceded that S. 112, Government of India Act, 1915, did not alter the position. In 55 Bom. 803 David Sassoon Ezekiel v. N. N. Reuben ('31) 18 A. I. R. 1931 Bom. 402 : 55 Bom. 803: 134 I. C. 550 Wadia J. applied Jewish law simply following the observation of Crump J. in 50 Bom. 369 Rachel Benjamin v. Benjamin Solomon ('26) 13 A. I. R. 1926 Bom. 169: 50 Bom. 369 94 I. C. 59. 803 David Sassoon Ezekiel v. N. N. Reuben ('31) 18 A. I. R. 1931 Bom. 402 : 55 Bom. 803: 134 I. C. 550 Wadia J. applied Jewish law simply following the observation of Crump J. in 50 Bom. 369 Rachel Benjamin v. Benjamin Solomon ('26) 13 A. I. R. 1926 Bom. 169: 50 Bom. 369 94 I. C. 59. Before the Appeal Court the applicability of Jewish law was not questioned at all. In A. I. R. 1935 Rang. 190 Ezekiel M. Saul v. Ramah Saul (35) 22 AIR 1935 Rang. 190 : 156 I. C. 795 Page C. J. and Mya Bu J. remanded the case to the Original Side with a direction to take further evidence as was done in 40 Cal. 266 Mozelle Joshua v. Sophie Arakie ('13) 40 Cal. 266 : 18 I. C. 132. There was no discussion as to the terms of the Letters Patent and the learned Chief Justice guarded his expression of opinion with the reservation "as at present advised." In A. I. R. 1944 Bom. 15 Paul Engel Vs. Edith Engel, AIR 1944 Bom 15 Blagden J. followed 50 Bom. 369 Rachel Benjamin v. Benjamin Solomon ('26) 13 A. I. R. 1926 Bom. 169: 50 Bom. 369 94 I. C. 59 without any discussion. The Government of India Act, 1935, has brought about no further change in the jurisdiction of the High Courts or in the law to be administered by the High Courts. Section 223 runs as follows: Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division Courts, shall be the same as immediately before the commencement of Part III of this Act. 36. 36. On a review of the Statutes of Parliament, Charters and Letters Patent, Bengal Regulations and the Government of India Acts of 1915 and,1935 and the judicial decisions, I have come to the conclusion that this High Court in the exercise of its ordinary original civil jurisdiction has to - (a) receive, try and determine suits of every description as provided in Cl. 12. Letters Patent of 1865, and (b) apply the same law or equity to each case which would have been applied by the Supreme Court of Calcutta namely rules of English law and rules of Equity of the High Court of Chancery in Great Britain subject to Indian Legislative enactments; but (c) in suits against an inhabitant of Calcutta in matters of inheritance and succession to lands, rents and goods and in matters of contract and dealing between party and party, apply, when both parties are subject to the same personal law or custom having the force of law that personal law or custom and when the parties are subject to different personal law or custom, the law or custom to which the defendant is subject. 37. The present suit is one based on a contract. Both parties to the suit are Jews and subject to Jewish law. The suit is filed in the ordinary original civil jurisdiction. The defendant claims that the contract in suit is invalid by reason of the provisions of the personal law of the parties. In my opinion it is incumbent on this Court now to as certain what that personal law is and what effect that law has on the facts of this case in general and on the contract in suit in particular. In this view of the matter I have allowed evidence to be given as to the Jewish law. 38. As to (B). - I now pass on to consider the second question namely what is the Jewish law on the subject and the effect thereof, in the facts of this case, on the contract in suit. The only oral evidence adduced before me, on the question of Jewish law, is that of David Girjee Raymond who claims to be a Rabbi and as such well versed in and an expert exponent of the Jewish law. 39. Mr. Chatterjee who now appears for the plaintiff (the wife) submitted that no expert evidence on Jewish law was admissible. The only oral evidence adduced before me, on the question of Jewish law, is that of David Girjee Raymond who claims to be a Rabbi and as such well versed in and an expert exponent of the Jewish law. 39. Mr. Chatterjee who now appears for the plaintiff (the wife) submitted that no expert evidence on Jewish law was admissible. He formulated his objection as follows : When this Court indicated that in a suit between parties who were Jews and which was based on a contract this Court would have to take into consideration the Jewish law on the subject, this Court must have proceeded under S. 112, Government of India Act 1915. That Act made it obligatory on this Court to administer the Jewish law in matters specified therein. The Jewish law, therefore, became the law of this country in those specified matters so far as the Jews are concerned. Since 1915, therefore, the Jewish law cannot be regarded as foreign law. He then cited S. 45, Indian Evidence Act, and contended that as expert evidence is admissible in respect of foreign law under that section and that as Jewish law is not foreign law, no expert evidence of Jewish law is admissible. I am unable to accede to this contention. In many circumstances this Court has to apply the laws of other countries, e. g. the law of the country where the land in dispute is situate, or where the contract in suit was made or was to be performed as the rules set out in Dicey's Conflict of Laws, to which Mr. Isaacs referred, will clearly show. This is done pursuant to the rules of private international law adopted by the Courts of all civilised countries. This circumstance, however, does not make the law of those countries part of the law of this country and it cannot be argued that no expert evidence is admissible in respect of those foreign laws. Likewise, when the Government of India Act, 1915, enjoined the application of Jewish law in certain specified matters the Jewish law did not cease to be foreign law and did not become part of the law of this country. Likewise, when the Government of India Act, 1915, enjoined the application of Jewish law in certain specified matters the Jewish law did not cease to be foreign law and did not become part of the law of this country. The situation appears to me to be the same in both cases, the only difference being that in one case foreign law is applied under the rules of private international law and in the other case foreign personal laws, e. g., the laws of the Jews or of the Armenians in certain specified matters are applied under the Government of India Act, 1915. I see no difference in principle between the two cases. In my judgment no foreign law becomes part of the law of this country merely by the circumstance that it is to be applied by the Courts in this country. Such foreign law remains a foreign law and consequently under S. 45, Indian Evidence Act, expert evidence is admissible in respect of such foreign law. I may also mention that in the cases to which I have already referred expert opinion on Jewish law has been admitted in evidence. In England, although the Marriage Acts recognise the rights of the Jews to contract and solemnise marriages according to their own usages, such usages have to be proved in the same way as foreign laws are proved. See note (e) at p. 989 of Halsbury's laws of England, 2nd Edition Vol. XI. 40. Mr. Chatterjee next contended that Mr. David Girjee Raymond was not a Rabbi but was a mere Haakam authorised to expound only certain branches of the Jewish law and was not an expert at all. He further contended that Mr. Raymond was a mere shohet or slaughterer of animals and fowls. He was and is a private tutor of the children of the defendant and was for sometime a tenant of his and was otherwise under obligations to the defendant and consequently he was not a disinterested person on whose evidence any weight ought to be attached by this Court. It is not necessary for me to go into the criticisms of Mr. Chatterjee too closely. I do not think those criticisms really affect the present case, for Mr. It is not necessary for me to go into the criticisms of Mr. Chatterjee too closely. I do not think those criticisms really affect the present case, for Mr. Raymond in his evidence has only referred to certain verses from Eben-Ha-Ezer which is the third volume of the series collectively called Shulchan Aruch compiled by Rabbi Joseph Kareu. That Shulchan Aruch has obtained a general authority amongst the Jewish people on all questions of marriage and divorce, was accepted by Wadia J. in 55 Bom. 803 David Sassoon Ezekiel v. N. N. Reuben ('31) 18 A. I. R. 1931 Bom. 402 : 55 Bom. 803: 134 I. C. 550. Mr. Surita in his argument proceeded rather on the texts of Eben-Ha-Ezer than on the personal opinion of Mr. Raymond. Mr. Chatterjee on behalf of the plaintiff has called no substantive evidence on the Jewish law but in cross-examination put to Mr. Raymond certain verses and particularly verse 1 (a) Chap. 70 headed "Laws concerning support, etc." from Part 4 of the Code of Jewish Jurisprudence compiled by Rabbi J. L. Kadushin and published in America in 1923. This is also an authoritative book containing translations of verses taken from earlier books of accepted authority and grouped under different heads in the form of a comprehensive code of the Jewish law. I therefore propose, for the purpose of this judgment, to proceed principally on these two authoritative works, which are the only authorities to which my attention was drawn. 41. Mr. Raymond in his evidence stated that there was no such thing as a deed of separation known to Jewish law (Q. 30). At the end of his evidence I asked him (QS. 263-272) whether by his answer in examination-in-chief (Q. 30) he meant that there was an express prohibition against such a contract in the Jewish law or that there was an absence of any reference to such a contract. He replied that there was no mention in the Jewish law of deed of separation between a husband and a wife and added that it is not permissible because the Jewish law says that a man cannot live apart from his wife. He then referred again to certain verses in Eben-Ha-Ezar and concluded by saying that barring what was mentioned therein there was nothing else in the Jewish law on the subject. It is clear, therefore, that according to Mr. He then referred again to certain verses in Eben-Ha-Ezar and concluded by saying that barring what was mentioned therein there was nothing else in the Jewish law on the subject. It is clear, therefore, that according to Mr. Raymond there is no express mandatory prohibition in the Jewish law against a contract of separation between a husband and a wife but that such a prohibition is to be inferred from certain verses of Eben-Ha-Ezer quoted by him. Mr. Raymond in his evidence referred to the following verses of Eben-Ha-Ezer: Chapter 1 verse 8 page 3; Chap. 70 verse 2 page 303; Chap. 76 Verse 1 page 313; Chap. 76 verse 5 page 313; Chap. 77 verse 1 page 315; Chap. 77 verse 2 page 316. Mr. Chatterjee put to Mr. Raymond Verse 1 (a) and Verse 14 of Chap. 70 of the Code of Jewish Jurisprudence Part IX pages 410 and 413 which Mr. Raymond accepted as correct. The parties have also put in agreed English translations of the verses and commentaries of Eben-Ha-Ezer referred to by Mr. Raymond and certain other verses therefrom. These have been marked as exhibits. These are all the materials now before me as to what the Jewish law on the subject is. 42. Mr. Surita for the defendant argued as follows: The Jewish law is to be taken as a whole and the Court should take a comprehensive view in the matter. Kedushin's book is only a translation of some text without any comment whereas Joseph Kareu's Eben-Ha-Ezar is an authoritative book which gives the verses as well as the explanations and commentary thereon. The verses of Eben-Ha-Ezar clearly show that the Jewish law requires that husband and wife must live together and propagate the Jewish race. Propagation and multiplication of the race are the fundamental principles governing the normal state of matrimony under the Jewish law. Even if a man has children it is sinful for him to live without a wife and he must marry and if he cannot afford he can even sell the holy books. Propagation and multiplication of the race are the fundamental principles governing the normal state of matrimony under the Jewish law. Even if a man has children it is sinful for him to live without a wife and he must marry and if he cannot afford he can even sell the holy books. If a fresh marriage for the propagation of the Jewish race is the injunction of the Jewish law in the case of a man who has lost his wife, even when he has children by her, the underlying reason of this injunction must apply all the more to the case of a man whose wife is living and consequently the husband and wife must live together for the propagation of the Jewish race. Therefore ordinarily a contract of separation between the husband and the wife is repugnant to the basic principle underlying the Jewish law of marriage. It is only in exceptional circumstances and for a limited period only that a husband and wife may, by consent, live apart from each other as laid down in Eben-Ha-Ezer. Mr. Surita concluded by submitting that Verses 1 (a) and 14 referred to by Mr. Chatterjee from Kadushin's book must be read with, and regarded as modified by, the verses of Eben-Ha-Ezer spoken to by Mr. Raymond and referred to above. 43. In appreciating and construing the relevant verses relied on by the parties it has to be remembered, as pointed out in the introduction to Eben-Ha-Ezer, that there are many laws in the ancient books which are not observed amongst the Jews in modern times. After the overthrow of the Jewish Kingdom the Jews have scattered all over the world and they have to conform to the secular laws of the place they happen to live in. This is enjoined by the Talmud in the words "deens de mulkhutha deena," i.e., the law of the land is the law. The laws to be applied to the Jews, therefore, are not uniform and they vary according to the laws of domicile. The original Talmudi law has thus been modified and liberalised by modern systems of jurisprudence in important particulars, e. g., law of crimes, law of purchase and sale, usury and the like. 44. The laws to be applied to the Jews, therefore, are not uniform and they vary according to the laws of domicile. The original Talmudi law has thus been modified and liberalised by modern systems of jurisprudence in important particulars, e. g., law of crimes, law of purchase and sale, usury and the like. 44. If the verses above referred to are the only provisions of the Jewish law on the subject-and no other has been placed before me-it will be observed that apart from the verses dealing with marital relations there is no general law, either of marriage or of contract, which forbids a contract of separation between husband and wife. It will be further observed that even in the verses dealing with marital relations there is no express mandatory prohibition against a contract of separation between a husband and a wife. On the contrary, as Mr. Chatterjee contended, there is express sanction, even according to the commentators noted in Eben-Ha-Ezer, for such separation in certain cases although for a limited period of time. Therefore, the separation between a man and his wife is not wholly unknown to Jewish law even as expounded in Eben-Ha-Ezer. But because certain specific cases are mentioned there, is it to be inferred that a contract of permanent separation is not permissible under any circumstances? Mr. Surita, as I have already pointed out, wants me to infer such prohibition and he relies on verse 8 of Chap. 1 and verses 1, 2, 4 and 5 of Chap. 76 of Eben-Ha-Ezer which enjoin the right and duty of co-habitation and sexual intercourse for the purpose of multiplying the Jewish race. The ancient indigenous Jewish law recognised polygamy and at that time it was not necessary to draw any inference of prohibition against separation of man and wife from these verses for propagation of the race, for the husband could, after separation, take another wife and multiply the race. Again, is the implied prohibition contended for by Mr. Surita, if it exists at all, to be regarded as a rule of positive law so that a violation of it is an illegality or is it to be regarded merely as a religious or moral precept the violation of which amounts to nothing more than an irregularity which the law does not take any notice of or may condone ? Is the alleged implied prohibition, if any, to be regarded as a matter of public policy which nobody can ignore or renounce or to be regarded as mere safeguard for the private rights of the husband or the wife, as the case may be, which the parties concerned can abandon or waive ? These are questions which are bound to arise in the process of the consideration and application of any ancient system of jurisprudence where positive law is intermingled with religion and morality. The duty of the Court, I conceive, is to disentangle the positive law from mere religious or moral precepts, or to use the language of Hindu law to distinguish Vyavahara from Achara. In this connection this Court has to constantly bear in mind the observations of the Privy Council in 26 I. A. 113 Sri Balasu Gurulinga Swami v. Balara Ramalakshanamma (99) 22 Mad. 398: 21 All. 460 : 26 I.A. 113 : 7 Sar. 330 (P.C.) at p. 136 which are as follows : Their Lordships had occasion in a late case to dwell upon the mixture of morality, religion and law in the Smritis. They then said : 'All these old text books and commentaries are apt to mingle religious and moral considerations not being positive laws with rules intended for positive laws.' They now add that the further study of the subject necessary for the decision of these appeals has still more impressed them with the necessity of great caution in interpreting books of mixed religion, morality and law, lest foreign lawyers accustomed to treat as law what they find in authoritative books, and to administer a fixed legal system, should too hastily take for strict law precepts which are meant to appeal to the moral sense, and should thus fetter individual judgments in private affairs, should introduce restrictions into Hindu society, and impart to it an inflexible rigidity, never contemplated by the original lawgivers. The above observations enjoining caution in the matter of the consideration of old text books of the Hindu law, I apprehend, apply with equal force in the consideration of text books of the Jewish law, another ancient system of law. I have already set out the principal terms of the deed of separation on which this suit is founded. The above observations enjoining caution in the matter of the consideration of old text books of the Hindu law, I apprehend, apply with equal force in the consideration of text books of the Jewish law, another ancient system of law. I have already set out the principal terms of the deed of separation on which this suit is founded. It is nothing more or less than a statement by the husband that he will maintain the wife in a particular manner, that he will take the children into his custody and maintain and educate them but that he will not live with the wife, and a statement by the wife to the husband that she accepts the position and consents thereto. Is there any provision in the Jewish law which expressly prohibits such an agreement? None has been brought to my notice. On the contrary I find that this deed of separation brings about a situation which is contemplated and sanctioned by necessary implication by verse 1 (a) of Chap. 70, p. 410 of the Code of Jewish Jurisprudence which is in the following words: 1 (a). If the husband wants to support his wife without living together with her that cannot be done without her consent (Ketubah 646, Tur.) This appears to be consonant with Verse 2 of Chap. 70 of Eben-Ha-Ezer, although the commentator restricts this verse to the case where the husband goes to another city for work or study. It appears to me that the commentator only gives some illustrations of the general rule and the illustrations do not limit the rule or exhaust its application. The verses enjoining and encouraging sexual intercourse between man and wife can at best be regarded as religious or moral precept or social duty for the preservation of the race and can hardly be said to be a part of the positive law which alone the civil Courts can enforce. The verses from Eben-Ha-Ezer, namely, Verses 1 and 2 of Chap. 77 appear to me to contemplate and provide for quite a different situation, namely when the husband or the wife is rebellious. The verses from Eben-Ha-Ezer, namely, Verses 1 and 2 of Chap. 77 appear to me to contemplate and provide for quite a different situation, namely when the husband or the wife is rebellious. I do not see how those verses, which deal with a situation where the husband and wife are at arm's length and which is brought about by one spouce against the will of the other, can have any application to a situation where both the spouses put their heads together and arrive at a reasonable agreement with regard to their matrimonial differences. 45. In my judgment I cannot regard the verses of Eben-Ha-Ezer as a prohibition express or implied against such mutual arrangement. On the contrary verse 1 (a) of the Jewish Jurisprudence of Kadushin and verse 2 of Chap. 70 of Eben-Ha-Ezer sanction such arrangement by necessary implication. I read the commentator's notes to the last mentioned verse as merely illustrative and not exhaustive. Further the right and duty of sexual intercourse laid down in such minute detail can hardly form the subject-matter of positive law. If anything they are to be regarded as mere religious or moral precepts or canons of social duty which civil Courts administering secular and civil laws cannot enforce and will not therefore uphold. Amicable separation is not an offence against the Jewish law or the law of this land, nor is it opposed to public policy. In my opinion the injunction of regular cohabitation and the alleged prohibition against separation of man and wife to be implied therefrom are in any event nothing in the world more than provisions by way of safeguards and protection of the private marital rights of the husband or the wife. I see nothing in the Jewish law to prevent the parties concerned from renouncing or waiving such right. This deed of separation came into being at the instance of the defendant and has been acted upon for sometime and was insisted upon by him when it suited his purpose. In my opinion he is bound in conscience to honour its terms. True, this Court is enjoined to administer the personal laws of the parties in certain specified matters but it is also authorised and empowered to administer the rules of Equity. In my opinion he is bound in conscience to honour its terms. True, this Court is enjoined to administer the personal laws of the parties in certain specified matters but it is also authorised and empowered to administer the rules of Equity. I can see no reason why this Court, as a Court of equity, should treat this contract in a manner different from that in which the Court of Equity in England dealt with similar prohibitions of the old Ecclesiastical laws of England. 46. The case in (1862) 4 De. G. F. & J. 221 Hunt v. Hunt (1862) 4 De. G. F. & J. 221 : 31 L. J. Ch. 161 : 5 L. T. (N. S.) 778 : 10 W. R. 215, to which I was referred by Mr. Isaacs, traces the process by which contracts of separation between husband and wife came to be recognised first by the Court of Law and then by the Court of Equity in England. The Lord Chancellor (Lord Westbury) in his preliminary judgment administered two cautions, namely, first, that religious view of the question must not be confounded with the view which alone ought to be taken in Courts sitting to administer justice according to Civil Law, and second, that one must not forget the different state of the Ecclesiastical law as it existed in England before and after the Reformation. The learned Lord Chancellor then went on to say that before the Reformation marriage was regarded by the Church, and therefore regarded by the law, as a sacrament, a contract of the highest possible religious obligation and all its duties and obligations were matters of ecclesiastical cognisance and the duty of cohabitation-the primary duty arising from the contract-was enforced by spiritual tribunals by spiritual punishments. Voluntary separations, before the reformation, were forbidden by law and contracts made for giving effect to voluntary separations were therefore invalid, as being contrary to the policy-that is, contrary to the prohibition of the law. Then the Lord Chancellor referred to the reformation and the statute of Henry VIII and pointed out that the Ecclesiastical law was subordinated to the Common law and thenceforth, by Common law, voluntary separation, that is, the cessation, by mutual agreement, of the consortium vita of matrimony, was not a thing forbidden, prohibited or in any manner made the subject of punishment. The whole jurisdiction on the subject of marriage, however, remained vested in the Courts Christian and the power of instituting suits for the restitution of conjugal rights was retained by those Courts. Those Courts refused to countenance any separation that had not been pronounced by the authority of spiritual Court and did not permit a contract of voluntary separation to be pleaded in bar of the right to interfere by ordering restitution of conjugal rights. The Common law Courts, however, treated the voluntary separation as contracts capable of being enforced at Common law. The learned Lord Chancellor then referred to the cases in (1847) 1 H.L.C. 538 J. W. H. Wilson v. M. W. H. Wilson (1847) 1 H. L. C. 538 : 9 E. R. 870 and (1854) 5 H. L. C. 40 J.W.H. Wilson v. M. W. H. Wilson (1854) 5 H.L.C. 40 : 23 L. J. Ch. 697 and pointed out that as the infirmity of the process in Courts of Common law prevented those tribunals from giving complete relief, the Courts of Equity supplied, partly by their injunctions and partly by decrees of specific performance, the infirmity and imperfect nature of the relief which was given in a Court of Common law, for it would be a preposterous thing to allow the husband with impunity to sue in the Court Ecclesiastical and thereby to defeat the whole of the contract, and then to tender to the injured party the mere compensation which pecuniary damages assessed by a jury might afford. At p. 233 the Lord Chancellor observed as follows : The long series of eminent Judges whose observations preceded the determination of the House of Lords are not to be weighed against the authority of that judgment, and if they are overborne or overruled by that judgment they can no longer be cited with propriety to induce the Court to refuse to give effect to the clear principle and determination involved in that judgment; but I see no departure from principle voluntary separation being no offence by the common law however it may be regarded in a religious point of view. If it is not to be regarded as a civil offence against society the power to institute a suit for the restitution of conjugal rights is nothing in the world more than a private remedy and a private right belonging to the husband. If it is not to be regarded as a civil offence against society the power to institute a suit for the restitution of conjugal rights is nothing in the world more than a private remedy and a private right belonging to the husband. The general maxim applies, Quil ibet potest renunciare juri pro se introducto. I beg attention to the words pro se because they have been introduced into the maxim to show that no man can renounce a right of which his duty to the public and the claims of Society forbid the renunciation. But it this voluntary separation is a state of things which by the consent of the parties may be created and created without offence, then it falls within the scope and ambit of the ordinary power of contracting, and there can be no difficulty upon principle or upon the ground of the policy of the law as to the validity of such a contract. 47. After stating the doctrine of the Ecclesiastical Court to which I have already referred the Lord Chancellor proceeded as follows : Such is the doctrine of the Ecclesiastical Courts, but the relative obligations of fulfilling the duties of a marriage contract, which are the basis of this ecclesiastical doctrine, the common law leaves to the conscience of the parties concerned. It regards a deed of separation as any other legal contract. If the covenant of the husband not to sue for restitution, which is a release of the right to compel cohabitation, be founded upon a valuable consideration, an action may be maintained upon it as upon any other legal covenant. A Court of Equity, in regarding these covenants, cannot take a higher or different ground. It is in this respect bound to follow the law; and the remark that a Court of Equity, in enforcing the covenant would be taking on itself the jurisdiction of the Court of Divorce, is no more applicable to this Court when granting its injunction than it would be to a Court of law when supporting an action on the covenant. 48. In his final and reconsidered judgment the learned Lord Chancellor confirmed his first judgment. The only other English case on this subject to which I need refer is the case in (1879) 12 Ch. D. 605 Besant v. Wood (1879) 12 Ch. D. 605 : 40 L. T. 445. 48. In his final and reconsidered judgment the learned Lord Chancellor confirmed his first judgment. The only other English case on this subject to which I need refer is the case in (1879) 12 Ch. D. 605 Besant v. Wood (1879) 12 Ch. D. 605 : 40 L. T. 445. At p. 620 Sir George Jessel, M. R. observed as follows: For a great number of years, both ecclesiastical Judges and lay Judges thought it was something very horrible, and against public policy, that the husband and wife should agree to live separate, and it was supposed that a civilised country could no longer exist if such agreements were enforced by Courts of law, whether ecclesiastical or not. But a change came over judicial opinion as to public policy; other considerations arose, and people began to think that after all it might be better and more beneficial for married people to avoid in many cases the expense and the scandal of suits of divorce by settling their differences quietly by the aid of friends out of Court, although the consequence might be that they would live separately, and that was the view carried out by the Courts when it became once decided that separation deeds per se were not against public policy. 49. The learned Master of the Rolls then referred to the earlier cases including (1862) 4 De G. F. & J. 221 Hunt v. Hunt (1862) 4 De. G. F. & J. 221 : 31 L. J. Ch. 161 : 5 L. T. (N. S.) 778 : 10 W. R. 215; (1847) 1 H. L. C. 538 J. W. H. Wilson v. M. W. H. Wilson (1847) 1 H. L. C. 538 : 9 E. R. 870 and (1854) 5 H. L. C. 40 J.W.H. Wilson v. M. W. H. Wilson (1854) 5 H.L.C. 40 : 23 L. J. Ch. 697 mentioned above and finally to (1866) 1 H. L. SC. 63 Rowley v. Rowley (1866) 1 H. L. Sc. 63 which went up to the House of Lords and concluded as follows at pp. 697 mentioned above and finally to (1866) 1 H. L. SC. 63 Rowley v. Rowley (1866) 1 H. L. Sc. 63 which went up to the House of Lords and concluded as follows at pp. 624 -25 : I believe, therefore, that so far as the general law is concerned, though you cannot treat it as settled, but according to my opinion of what is the law and what it ought to be, the remedy is mutual, and the husband as well as the wife is entitled to specific performance of the agreement to live apart. 50. It will thus be seen that in England contracts of voluntary separation came to be regarded as valid and enforceable. The judicial decisions have since laid down that such agreement is valid provided it is made in contemplation of, and is followed by, an immediate separation but an agreement for future separation, however, is void as being contrary to public policy. In England contracts for voluntary separation are now regarded in the same way as any other legal contract governed by the ordinary rules of law and equity and not as a special kind of contract incidental to marriage or governed by the matrimonial law. The form and validity of these contracts are dealt with in Halsbury's Laws of England, Edn. 2, Vol. 16, Part 9, Art. 1162 et seq. 51. The position and status of the Jews in England after the restoration of Charles II will be found dealt with in Halsbury's Laws of England, Edn. 2, Vol. 11, Arts. 1742-1754, pages 981-987. Suffice it to say that there is no reason to suppose that a contract of separation between a Jewish husband and wife would not be treated on exactly the same footing as a contract of separation between an English husband and wife. I now pass on to the Hindu Law. The case in 28 Cal. 751 Tekait Mon Mohini v. Basanta Kumar ('01) 28 Cal. 751 cited by Mr. Chatterjee was an appeal from the mofussil Court. A Division Bench of this Court held upon the authority of various texts and decided cases that the duty imposed upon a Hindu wife to reside with her husband, wherever he may choose to reside, is a rule of Hindu law and not merely a moral duty. 751 cited by Mr. Chatterjee was an appeal from the mofussil Court. A Division Bench of this Court held upon the authority of various texts and decided cases that the duty imposed upon a Hindu wife to reside with her husband, wherever he may choose to reside, is a rule of Hindu law and not merely a moral duty. It also held that an ante-nuptial agreement on the part of the husband that he will never be at liberty to remove his wife from her parental abode, would defeat that rule of Hindu law and is invalid on that ground, as well as on the ground that it is opposed to public policy. This was a case of antenuptial agreement and therefore not in point. An agreement of this kind viewed as an ordinary contract will also be invalid under the English Law as being opposed to public policy and the learned Judges held it to be invalid also as being opposed to public policy. There are passages in the judgments of both the learned Judges that after marriage a situation may arise when for the preservation of peace and reputation of the family such separation may be permissible. 52. In 39 Bom. L. R. 458 Purshottamdas Harjivandas Patel and Others Vs. Rukmini and Others, AIR 1937 Bom 358 , which was also an appeal from the mofussil Court, a Division Bench of the Bombay High Court held that a post-nuptial agreement between husband and wife to live separately, the husband setting apart a portion of his estate out of which the wife agreed to receive maintenance, was not opposed to public policy or the spirit of Hindu law. The principles enunciated in the English cases and the Bombay case I have just referred to appear to me to be applicable to the contract in suit. For reasons stated above, I have no hesitation in holding that the deed of separation on which this suit is based is valid under the Jewish law and is not opposed to the spirit of the Jewish law and is therefore not hit by S. 23, Indian Contract Act. It is a contract which this Court administering alike the Jewish law of contract and the rules of equity must uphold and enforce. My judgment must therefore be in favour of the plaintiff. 53. It is a contract which this Court administering alike the Jewish law of contract and the rules of equity must uphold and enforce. My judgment must therefore be in favour of the plaintiff. 53. The amount of maintenance payable to the plaintiff under the terms of the deed will depend on the amount of increase in the income of the defendant. I therefore refer it to the Registrar or such other officer as he may nominate, to enquire and report as to the present income of the defendant since the death of his father in May 1942 and what will be the reasonable and proper maintenance payable to the plaintiff in terms of the deed of separation. The plaintiff will be entitled to the arrears of maintenance up to date and from month to month hereafter at the rate to be ascertained by the officer. All further considerations and directions are reserved until after the officer makes his report. The plaintiff will also be entitled to the costs of this suit. Certified for two counsel.