SREEMANCHUNDER DEY GOPAULCHUNDER AND CHUCKERBUTTY Appellant; 1866. tion of a de. On appeal from the High Court of Judicature at Fort William in Bengal. 14th Nov., THE principal question in this suit and on appeal, of another judgmentcreditor, who had obtained a decree in a separate suit against the estate, brought a suit against the purchaser * Present: Members of the Judicial Committee-The Right Hon. Lord Westbury, the Right Hon. Sir James William Colvile, and the Right Hon. Sir Edward Vaughan Williams. Assessor-The Right Hon. Sir Lawrence Peel. to set aside the sale, on the ground that the purchase was not bona fide, being made in collusion with the judgment-debtors. Held, on a review of the evidence, that there was not sufficient evidence to warrant the decree of the High Court at Calcutta that it was a benamee transaction; or that the purchaser was acting as an Agent for the judgment-debtors; and the decree of the Court below reversed. Held further, that the onus probandi was on the Plaintiff to establish the affirmative issue that the money for the purchase of the Talook was supplied by the judgment-debtors, or a third party for them, and not by the purchaser. Evidence showing circumstances which may create suspicion is not enough to justify the Court making a decree resting on suspicion only. On an appeal to the High Court, that Court, acting under the power conferred by section 355 of the Code of Civil Procedure, Act, No. VIII. of 1859, ex mero motu, called for and examined fresh witnesses. Held that such power should be cautiously exercised, and the reasons for exercising it recorded or minuted by the High Court on the proceedings; as, first, the witnesses may be such as the parties to the suit do not wish to call; and, secondly, the new evidence may not be sufficiently extensive to satisfy the ends of justice. Dey, and Prosonomoye Dossee, who was the widow and heiress of Chundermohun Dey, the judgmentdebtors and made benamee, or in secret trust, in the name of the first Respondent in order to protect it from the creditors of the judgment-debtors. The circumstances which gave rise to this question were as follows: : In the year 1858, a Talook called Lot Satgachia, in the Zillah of East Burdwan in Bengal, whereof one Sreenath Dey was the ostensible owner, was put up for sale by auction, at the instance of one Juggomohun Saha, in execution of decree in a suit, No. 4 of 1857, against Doorgapersaud Dey, Chundermohun Dey, and Russickloll Dey, for whom the Talook had been held benamee by Sreenath Dey; when Petumber Mookhopadhya, or Moorkerjee, purchased it for Rs. 19,125, and paid into Court the deposit, amounting to Rs. 2,868. 12a., but being unable to pay the balance of the purchase-money, Petumber Mookhopadhya transferred the purchase to Sreemanchunder Dey, the Appellant, who repaid him the amount of his deposit, and having been substituted for him as purchaser, was let into possession of the Talook, and received a Bill of sale thereof in his own name. Some time after taking possession the Appellant caused the estate to be measured, and he served notice upon many of the Ryots (including Gopaulchunder Chuckerbutty, the first Respondent) for increase of rent, and instituted suits to attach lands, which had been held as La-khiraj, or exempt from payment of revenue to the owner of the Talook. The first Respondent subsequently took an assignment to himself from a judgment-creditor in another suit, No. 7 of 1861, against Doorgapersaud Dey, Russickloll Dey, and Prosonomoye Dossee, and he took 1866. SREEMAN CHUNDER v. GOPAUL CHUNDER CHUCKER BUTTY. 1866. CHUNDER DEY out execution thereon against the judgment-debtors, SREEMAN Doorgapersaud Dey and Russickloll Dey, and also against Prosonomoye Dossee, and caused the Talook to be attached with a view of selling it in execution of the decree, as being their property, though held in the name of the Appellant. V. GOPAULCHUNDER CHUCKER BUTTY. The Appellant, on the 14th of August, 1861, filed his petition of claim in the Court of the Principal Sudder Ameen of the Zillah of East Burdwan, representing that the Talook was his own property, and praying that it might be released from attachment.. The Principal Sudder Ameen, after examining several witnesses on both sides, issued a Perwannah addressed to one Gooroodos Dutt, an Ameen for local investigation, requiring him to investigate through the inhabitants of the Talook itself, and the villages contiguous to it, as to what party was then in possession of the Talook, and for how long, and in what manner. The Ameen proceeded to the spot, when the decreeholder, the first Respondent, attended in person, and the Appellant (whose chief employment was in Calcutta) attended by his general Agent, and in their presence the Ameen took the depositions of several persons, including the Appellant. By his report, he stated, in effect, that the Appellant had shown in his examination such a want of acquaintance with matters connected with the Talook, as was inconsistent with the supposition that he was the real owner of it; that his ownership had not been established by the witnesses who deposed to it, but that other witnesses had proved that the Talook was in the possession of the judgment-debtors, who held it in the name of the Appellant. This report was submitted to the Principal Sudder Ameen (Nobinkishen Paulit), who pronounced judgment on the 16th of November, 1861, to the effect, that it was established that the Appellant had purchased the Talook; had obtained a Bill of sale in his own name, managed all his suits; and had also obtained Kabooleats from the tenants, and was personally in possession of the Talook; and that the first Respondent had not been able to show that the judgment-debtors had paid the purchase-money, and caused it to be purchased in the name of the Appellant. Accordingly the Principal Sudder Ameen, under sec. 246, of Act, No. VIII., of 1859, ordered that the property should be released from sequestration, and the Appellant's application admitted; and that the first Respondent, the decree-holder, should pay the Appellant's costs. with interest, and that the Respondent's costs should be paid by himself. On the 22nd of November, 1861, the first Respondent instituted a regular suit in the Court of the Principal Sudder Ameen, against the Appellant and the judgment-debtors, Doorgapersaud Dey, Russickloll Dey, and Prosonomoye Dossee, for the sale of Lot Satgachia, in execution of the decree in the suit, No. 7 of 1861 (the decree of which the first Respondent had become the holder for reversal of the above Order of the Principal Sudder Ameen, of the 16th of November, 1861), and for a declaration that such Lot was the property of the judgment-debtors. The plaint alleged that the judgment-debtors had purchased at auction, the Talook of Satgachia, benamee, in the name of the Appellant, and were still in possession thereof as proprietors. The Appellant, by his answer, stated the circumstances under which he had purchased the property, 1866. SREEMAN CHUNDER บ. GOPAUL CHUNDER CHUCKER BUTTY. 1866. and that he had, irrespective of anybody else, been in SREEMAN possession of the Talook as proprietor, and registered it in his name. CHUNDER v. GOPAUL CHUNDER CHUCKER- The principal Sudder Ameen fixed the following issue in the cause:- "Is the Talook that was released, by the summary decision complained of, the property of the judgment-debtors, and, therefore, saleable in reversal of the Order, or is it that of the Claimant, Defendant?" The suit was afterwards removed to the Civil Judge of the Zillah of East Burdwan. Both parties entered into evidence. The testimony of the three principal witnesses for the first Respondent, Nocoorchunder Gossamee, Ramtaruck Ghosamee, and Brojonauth Bundopadhya, was to the general effect, that the judgment-debtors had originally been proprietors of the Talook, and, although it had been repeatedly sold in execution, had contrived to buy it in the name of one Trustee after another; that on the last occasion, when, as they alleged, the secret trust was detected, and the Talook was sold at the instance of Juggomohun Saha, in execution of a decree against them, they had caused it again to be purchased on their own account in the name of the Appellant, whom these witnesses declared to be a very poor man, and nearly connected with the judgment-debtors, and that since his purchase, as also before it, the judg ment-debtors had been in the habit of attending openly at the Cutcherry or business-room of the estate, where they received rent and openly exercised the powers of proprietors, although the receipts were given in the name of the Appellant. According to two of the witnesses, one Moheschunder Dey, a cousingerman of Doorgapersaud Dey, but not joint with |