Imatges de pÓgina
PDF
EPUB

1857.

ROSOONDREE
DEBIAH

v.

from India to enable them to do so, but promised to RANEE HUR- join when they received sufficient remittances. That

the Appellant's agent in consequence delayed taking

a copy of the transcript proceedings till the 3rd of RAJAH PRAN Kishen Sing February, 1853. That the Sudder Dewanny Adawlut

of Bengal, on the 12th of May, 1856, in another suit in which the same question was raised between the same parties, had held, regarding the family usage as to the division of the. Raj in dispute, directly in opposition to their decree made in the suit now appealed. That on learning the result of this decision, the Appellant's agent prepared the transcript for printing in the month of January, 1857, when he became aware for the first time, that on the 24th of December previously, the appeal had been treated as abandoned within the provisions of the Statute, Sth & 9th Vict., c. 30, sec. 2. That the Appellant was desirous of prosecuting the appeal and bringing the same to a hearing, and that the delay was caused by no wilful intention, and the Petitioner prayed that the appeal might be restored or that special leave to appeal against the judgment of the Sudder Dewanny Adawlut might be allowed to the Appellant.

Mr. Wigram, Q. C., in support of the petition, Asked for an order for special leave to appeal.—[The Right Hon. Dr. Lushington : I very much doubt if the appeal is not lost, under the Statute, Sth & 9th Vict., c. 30, sec. 2, or that it can have been intended that their Lordships should have power to grant leave to institute a new appeal. It is a question of great difficulty. The real question is one of restoration, not of granting leave to appeal.] The object of that Statute was to remedy the mischief which existed

1857.

ROSOONDREE

DEBIAH

of allowing appeals to stand over for an indefinite time. It is an inherent right in the Crown to Ranee Hurpermit appeals at any time.--[The Right Hon. Lord Wensleydale : The Statute meant that the appeal Rajal Prax should be finally put an end to, not that there Kishen SING should be a fresh power to appeal.]

Mr. Leith opposed, Submitting that conditions ought to be imposed, if the application was granted, for the due prosecution of the appeal.

The Right Hon. Dr. LUSHINGTON : Their Lordships, under the very peculiar circumstances of this case, are inclined to allow leave to be given for the purpose of prosecuting this appeal. But their Lordships wish it to be distinctly understood, that it is the very peculiar facts attending this case which induce their Lordships to come to this. conclusion. It appears upon the petition of the Appellant that there have been two opposite decisions in India, upon what it seems must be considered substantially the same question ; and it might be productive of very great inconvenience, and would certainly not be very creditable to the law as administered in India, if such two conflicting decisions were allowed to stand. Their Lordships greatly lament the delay which has taken place upon the present occasion, and certainly, in many respects, it appears to be utterly unjustifiable; but, for the reasons I have stated, their Lordships are inclined to adopt the course of allowing the appeal to be restored. It must, however, be understood that the costs of this application must be paid by the Appellant, and security given here

1857.

ROSOONDREE
DEBIAH

v.

KISHEN SING

to the amount of 5001., or a Bond in such terms as Ranee Hur. their Lordships shall think fit to prescribe, and the

Appellant must also print and lodge his case without

delay. RAJAH PRAN

Mr. Wigram : Will the Court allow a re-deposit in India, or, if it should be found that the deposit remains in Court in India, will fresh security be required here?

Dr. LUSHINGTON : Security must be entered into here for 5001., or a Bond to secure that amount.

JOHN COCKRANE

Appellant,

AND

HURROSOONDURRY DEBIA and others

Respondents.*

On appeal from the Sudder Dewanny Adawlut, Bengal. 2nd, 3rd, & THE question in this case was, whether the principal

Respondent having been in uninterrupted possession

7th Feb.,

1857.

C., a Hindoo, * Present: Members of the Judicial Committee, - The Right by his Will appointed G.

Hon. T. Pemberton Leigh, the Right Hon. the Lord Justice Knight and others Bruce, the Right Hon. Sir Edward Ryan, the Right Hon. the Lord executors, and thereby gave

Justice Turner, the Right Hon. Sir John Patteson, and the Right and devised Hon. Sir William H. Maule. the residue of

Assessor,—The Right Hon. Sir Lawrence Peel. his estate to his daughter, H., the wife of G. All the executors proved, but G. alone acted in the trusts of the Will. G., being largely indebted to Ci's estate, by deed in 1831, conveyed to H. part of Ci's real estate as security for his debt. In 1833,

1857.

.

DURRI DEBIA,

of a Talook, named Durgapoor, the property in dispute, under a conveyance, for more than twelve years before COCKRANE the institution of the suit, the claim of the Appellant Hurrosooy

HURROSOONwas not barred by Ben. Reg. III., of 1793, sec. 14 ; or whether she had obtained fraudulent possession under a collusive conveyance, so as to bring the case within the exception to that bar provided for by Ben. Reg. II., of 1805, sec. 3, cl. 1.

The facts of the case were as follow :

On the 1st December, 1824, Goureechurn Bandopadhya, the husband of the Respondent, Hurrosoondurri Debia, borrowed of Doorgachurn Chuckerbutty, her father, the sum of Rs. 18,500, and gave his Bond ts secure the repayment thereof, together with interest thereon at six per cent. per annum. On the 3rd July, 1825, Chuckerbutty died, possessed of real and personal estate and property to a large amount, having first made a Will, whereof he appointed Goureechurn, and Bissonauth Mutty Loll, and Obhoychurn Bandopadhya, executors. By his Will he appointed the Respondent his residuary devisee and legatee. Goureechurn and Bissonauth proved the Will, and obtained probate from the Supreme Court at Calcutta, and thereupon took upon themselves the burden of the execution of the trusts thereof; but Goureechurn. alone acted in the management as executor.

G. was declared in solvent under the Statute, 9th Geo. IV., c. 73. H. entered into possession of the property so conveyed to her, and continued to hold the same uninterruptedly till the institution of a suit by the Official Assignee of the Insolvent Court, a period of twenty-two years. Held, in the absence of any proof of fraud in the transaction of 1831, or unfairness against II. in obtaining possession, so as to bring the case within the exception in cl. 1, sec. 3, of Ben. Reg. II. of 1805, that the possession by H. for more than twelve years was, by Ben. Reg. III. of 1793, sec. 14, a bar to the suit.

1857.

On the 7th November, 1826, Goureechurn and BisCOCKRANE sonuuth, as such executors, filed in the Supreme HURROSOON

Court at Calcuttu an inventory of the goods, &c., DURRI DEBIA. which came to their hands as executors, and in that

inventory the Bond of Goureechurn was entered as belonging to the estate of the Testator. On the 1st November, 1829, an account was made up by the executors, of the sum due on this Bond for principal and interest, which amounted to the sum of Rs. 18,500; whereupon Goureechurn executed another Bond in substitution of the first, for that sum.

In the beginning of January, 1831, on an account being taken of what was then due from Goureechurn, as debtor and acting executor to the estate of Chuckerbutty, it was found that Rs. 47,000 was the aggregate amount due, when it was arranged that Goureechurn should mortgage a portion of the real estate to secure the due payment of such sum of Rs. 47,000. Thereupon indentures of lease and release in fee in the English form and language, dated the 13th and 14th January, 1831, were drawn and prepared by Bird, then an attorney of the Supreme Court at Calcutta (since deceased), which deeds were executed and delivered to the principal Respondent by Gourecchurn. By the release, in consideration of the sum of Rs. 47,000, mentioned therein, the Talooks of Doorlae and Doorgapore (the subject of the suit), and other property attached thereto, were conveyed, released and assured to the Respondent and her heirs. The Respondent contemporaneously, to render the same a conditional and not an absolute conveyance, executed to Goureechurn certain articles of agreement bearing even date with indenture of release, whereby it was provided that the Respondent should not, within the space of

« AnteriorContinua »