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1857.

COCKRAXE

V. HURROSOOX

five years from the date thercof, convey or part with the possession of the Talooks and premises, or encumber the same, or any part thereof, but hold and possess the same merely as by way of a collateral purri Debia. security for the sum of Rs. 47,000, and interest.

In the month of April, in the same year, Gourecchurn, on the request of the Respondent, determined to raise the sum of Rs. 20,000, in order to pay off a portion of the sum of Rs. 47,000, still due to her. This sum was obtained as a loan from one Radakissen Bysack, and a mortgage of part of the estate of Chuckerbutty made to him ; and in order to effect this the Respondent, on the 29th April, 1831, executed a reconveyance to Goureechurn of the whole of the. estate previously conveyed to her, on the understanding that Goureechurn would immediately execute to the Respondent another deed of mortgage for the sum of Rs. 27,000, the balance which would remain due on the debt of Rs. 47,000, after paying to her the sum of Rs. 20,000; and on the 29th of the same month, Gourecchurn executed indentures of lease and release by way of mortgage, whereby he conveyed to the Respondent the Talooks of Doorlae and Doorgapore, subject to a proviso for redemption on payment by Goureechurn or his heirs, executors, or administrators, of the sum of Rs. 27,000, with interest. And for the further security, Goureechurn contemporaneously executed a Bond, with a warrant of attorney to confess judgment thereon, in the penal sum of Rs. 54,000, conditioned for the payment of such sum of Rs. 27,000.

Default was made by Gourecchurn in the payment of the last-mentioned sum and interest, on the 30th

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of April, 1832, whereupon the Respondent took posCOCKRANE session of the Talook of Doorgapore alone, which HUIR SOOS

had become forfeited under the terms of the indenDURRi Debla. ture of release and mortgage, Goureechurn having

, surreptitiously sold the other Talook, Doorlae ; and,

; being unable to redeem the Talook of Duorgapore, conveyed the equity of redemption in respect to that Talook, to the Respondent, in Benance (or trust), in the name of one Nilmoncy Mutty Loll, for the sum of Rs. 8,000, as the estimated value of such interest, and it was then agreed that such sum should be credited to Goureechurn by the Respondent in account. The Respondent, after obtaining possession, paid the Government revenue.

On the 21st of December, 1833, Goureechurn was declared insolvent, under the Statute, 9th Geo. IV., c. 73. In the schedule the sum of Rs. 20,000 was stated as the balance of principle due on the Bond of the 30th of April, 1831, and the balance was entered as a debt due from Gowrecchurn to the estate of Chuckerbutty.

Goureechurn died in the year 1831, leaving the other Respondents his heirs. Amongst other children, he left a son called Obhoychurn, who was indebted to Messrs. Mackillop, Stewart & Co., of Calcutta, in a large sum of money ; who obtained a judgment against him, under which a writ of sequestration issued against the Talook in question, then in the possession of the first Respondent, which was, on the 7th of January, 1846, seized by Messrs. Mackillop & Co., who insisted

that the conveyance to Nilmoney was Benamce" for Obhoychurn, their debtor, or that, at all events, he had some bene

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ficial interest in it. Upon this the Respondent, llurroscondurri Debia, claimed the property under the pur- COCKRANE chase ; and as there were other properties similarly HURR":5003

; situated, Messrs. Muckillop & Co. filed a Bill in the pork DEBLA, Supreme Court at Calcutta, against Iurrosoondurri Debia for the purpose of setting aside her claim to and possession of this and the other properties, and of enforcing their own claim, as being the property of Obhoychurn. In this suit the Respondent, Ilurrosoondurri Debia, claimed the property in question under the bill of sale to Nilmoney Mutty Loll, alleging that she was the real purchaser on that occasion, and that the conveyance was made to him “ Benamcefor her. In support of this case she produced, and put in evidence, and relied upon the absolute conveyance, by her husband, to her of the 15th and 14th January, 1831, which included the Tulook Doorbae, as well as other property, and another conveyance to her, dated the 29th and 30th April following, by way of mortgage for securing Rs. 27,000, and the Bond of, even date by way of collateral security. The release of the 14th January, 1831, purported to be in consideration of a sum of Rs. 17,000, due from the Insolvent to the estate of Chuckerbutty, the father of the Respondent, Hurrosoondurri Debia, and of whom she was the heiress and residuary legatee; but, although she was only tenant for life of the residuary estate bequeathed by the Will, the conveyance to her was in fee. To

Το account for the second conveyance and the omission in it for the other Talook, a reconveyance to Gourecchurn of the whole property was recited, alleged to bear date the 28th and 29th April, 1831, and to have

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been in consideration of the payment to IIurrosoonCOCKRAYE durri Debia of the sum of Rs. 20,000, which it was HERE'isoox- alleged was borrowed by Goureechurn of Radakissen HURRISOOXDEERI DERA. Bysack, for that purpose ; but this reconveyance

was not produced, nor was there any evidence which it was alleged could be relied upon, to show that any such transaction took place. Messrs. Mackillop, Stewart & Co. contested the Respondent's title to the estate, and thereupon the Supreme Court directed an issue in effect to try the validity of it. l'pon the trial of the issue, evidence was gone into on both sides. The Supreme Court, upon the hearing of the issues, found that the deeds upon which the Respondent relied were collusive, and not intended to be acted upon, and that the conveyance to Wilmoney was intended to screen the property from the Insolvent's creditors; and, in the absence of his assignee, who was no party to the suit, the insolvency not appearing upon the proceedings, they found that the bar interposed in Iurrosoondurri Debia's favour, being removed, the Talook was to be treated as the estate of the Insolvent, descendible to his sons; and in accordance with this finding (Goureechurn's insolvency having in the meantime been brought before the Court), judgment was afterwards given in favor of the Plaintiffs, and, as the Court assumed that there was case of fraud made out against the Respondent, she was condemned in costs. A sale took place under a writ of sequestration, and Vackenzie, as one of the firm of Messrs. Mackillop, Stewart & Co., bought the Talook of the Appellant the official assignee, for Rs. 400, on account of his firm ; but being unsuccessful in a suit to obtain

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COCKRANE

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possession as purchaser under that title, the Appellant, at the instance of Messrs. Muckillor & Co., on the 29th August, 1853, instituted a suit for posses- Hun Rosooxsion, in the nature of an action of ejectment, in purri DEBIA. the Zillah Court of the Twenty-four Pergunnahs, claiming the Talook in question as a concealed possession of the Insolvent, and making the widow the chief Respondent, and the sons of Gourcechurn, except Obhoychurn, Defendants. The Appellant in his plaint alleged in substance the facts above stated, and relied upon the judgment of the Supreme Court. IIe charged that the possession of the Respondent had been acquired and held by fraud, and that he was entitled to maintain the suit within twelve years from the date of the judgment of the Supreme Court when the fraud was discovered; and, at all events, he was so entitled under sec. 3, Ben. Reg. II. of 1805, by which the ordinary limitation of twelve years is declared not to be applicable to claims where possession had been acquired by violence, fraud, or any other unjust and dishonest means.

The Respondents, in their answers, took various objections to the right of the Plaintiff to sue as assignee ; but the substantial defences were : First, that the suit was barred by the lapse of twelve years from the accruer of the cause of action, under sec. 14, Ben. Reg. III. of 1793, and was not within sec. 3, of Ben. Reg. II. of 1805; and, second, the Respondent Hurrosoondurri Debia's title and possessions as purchaser, under the circumstances above detailed : and the Respondents alleged that the judgment of the Supreme Court was not binding upon them, upon the ground that the Zillah Court had an original

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