« AnteriorContinua »
jurisdiction of its own; and insisted that IurrosoonCockrare durri Debia received possession from Goureechurn at
the time of the transaction in question, and had reDURAI DERLN. tained such possession ever since.
Amongst other evidence given by the Plaintiff, he put in authenticated copies of the judgments and orders of the Supreme Court in the former suit; and he also put in the Bengal Turkuru, of 22nd Jay, and 18th of July, 1819, and 10th of January, 1919, containing reports of the judgments of the Court, the correctness of which he proved by the certificate of Sir Laurence Peel, the Chief Justice, and also by the evidence of Mr. Clarke. These printed reports were rejected as evidence by the Zilluh Julge, and by the majority of the Judges in the Suliler Court, but were allowed to be referred to as evidence, saving all just exceptions.
On the 13th of April, 1851, the Zillah Judge gave judgment in the Respondents' favour, holding that no fraud was proved against the Respondents, and that the case did not come within the Reg. II. of 1805, sec. 3, and he dismissed the suit with costs.
Against this decision the Appellant appealed to the Sadliler Dewinny Alunut, on the grounds of the rejection of evidence, and also that the decision was opposed to the facts and merits of the case ; on the 16th of April, 1855, the appeal came on to be heard before the Suller Court, consisting of Mr. A. Dick, Sir Robert Barlow, and Mr. J. B. Colvin. Upon the merits, Mr. Dick held that no sufficient case of fraud had been shown. Sir Robert Burlow and Mr. Colvin were of the contrary opinion upon this point; but the latter held that Terineychurn and
the other heirs of Gourerchurn had been in possession for twelve years without fraud ; therefore, on this COCKRANE point, although there had been frau (wy which he held them not bound) on the part of their ancestor venni i EBIL * Courecchurn, Jr. Colrin, differing with Jr. Dick in his reasonings, concurred with him in the result, which was, that the appeal should be dismissed with costs, and which was accordingly done. Sir Robert Burlow dissented from this judgment, and gave his opinion in favour of the Appellant. The majority of the Judges being in favour of the affirmance of the Zillah Court's decree, a decree was accordingly passed affirming that decrec.
The present appeal was brought from that decree.
Mr. R. Palmer, Q. C., and Jr. 11. Fielil, for the
Appellant, Insisted that there was sufficient evidence of fraud to take the case out of the operation of Ben. Reg. III. of 1793, sec. 11.
Mr. IVigram, Q. C., and Mr. Leilh, for the prin
cipal Respondent, Iurrosoonlurri Debia, Submitted that the onus of proof lay upon the Appellant to show that it was a collusive transaction for the purpose of defeating Gourecchurn's creditors, which he had failed to do, and that, therefore, he had not brought the case within the provisions of Ben. Reg. II. of 1805, sec. 3, cl. i. ; and that as the Respondent had held quiet and unmolested possession for more than twelve years before any claim thereto was preferred in a competent Court, under a title she believed just and valid, the suit was barred by Ben, Reg. III. of 1793, sec. 14.
The cases cited were.
l'pon the question of limitation, Sheikh Imdud II C'RROSOOX
Ali v. Mussumat Kootby Begum (a), Rajah Dundial DURRI DEBIA Sing v. Rajah Anund Kishwur Sing (), Ruthur Mun
nee Dusscą v. Shunkurce Dassea (c).
Whether it was a Benamee transaction, Gopeekrist Gosain v. Gungapersaud Gosain (1).
Upon the effect of the transaction between the Appellant and Mackenzie, whether it amounted to champerty and maintenance, Ram Gholam Sing v. Keerut Sing (c), larrington v. Long (f).
That the consideration for the deed of 1831, being to secure a debt, was good, Cudogan v. Kennett (9), Twyne's Case (1)
Upon the admissibility of the printed newspaper report of the Supreme Court's judgment in evidence, Maha Raja Dheeraj Rujah Mahatab Chund Bahadloor v. The Government of Bengal (i); and whether that judgment operated as an estoppel, Jones v. Bow (j), Starkie “ On Evidence," p. 323 (4th Edit.), and 1 Phillips & Arnold“ On Evidence,” p. 7.
At the conclusion of the arguments, judgment was pronounced by
The Right Hon. Lord Justice Knight BRUCE.
After stating the pleadings and proceedings in the suit, The Lord Chief Justice proceeded : In this case the possession of the first Respondent being, in form
(a) 3 Moore'sInd.App.Cases, 1. (6) 2 Moore'sInd. App.Cases, 482.
(h) 3 Co. Rep. 8.
as well as effect, admitted, the first question for decision is, as to the manner in which such possession COCKRANE originated, and the character of that possession. The account she gives of the matter is this : She was the DURRI DEBIA: daughter of a Banian named Chuckerbutty, who appears to have died possessed of considerable wealth. He made a Will, by which, after giving certain legacies, he gave a life interest in the residue of his property to her: Unfortunately, he appointed her husband, Goureechurn, one of his executors, and, therefore, substantially her trustee, and he seems to have been the sole acting executor. Goureechurn appears to have possessed himself of considerable assets of the Testator, independently of his own Bond for Rs. 18,500, upon which it is clearly in evidence he was indebted to the Testator. The exact amount of his debt to the Testator's estate may be matter of fair contention, but it was considerable; and that it must in any event have exceeded the amount of Rs. 20,000 is a matter upon which no reasonable man, upon the materials before their Lordships, can possibly doubt. In these state of things a security, not one of great formality, was prepared in the English form. In one sense it may be said to have been in the shape of an absolute conveyance; but taking the whole transaction together, their Lordships see upon the face of it, that it was intended only as a security. By it, several portions of the landed estate of Goureechurn, including the Talook in question, were, in consideration of a debt of Rs. 47,000, stated to be the amount which he owed to the estate, conveyed, not to any person in trust for the benefit of any parties who might be entitled to the estate, but, singularly enough, to the wife herself, who was the tenant for life of the residue. It seems remarkable that the
instrument should have been prepared in such a COCKRANE shape by Messrs. Collier & Bird, who are described,
and no doubt accurately, as highly respectable soliciHURROSOONDURRI Debia. tors at Calcutta.
Shortly afterwards, it seems to have suited some arrangement of the husband that a change should be made ; and in circumstances which, perhaps, do not clearly appear, a part of the property was withdrawn from the security; the wife was treated as having received Rs. 20,000, or 27,000 of the Rs. 47,000, which it is probable enough she never did receive, and a second mortgage deed was, in April, 1831, taken in her name for the reduced amount. This deed, in all substantial respects, was similar to the former deed.
Now, if the matter had rested here, and the instrument of 1832, upon which so much stress has been laid throughout the argument here and below, were out of the question, it appears to their Lordships, upon the evidence, that the validity and good faith of these transactions could not have been successfully impeached or affected. As I have said, there is every reason to believe, indeed, to be satisfied, that the amount of debt due from Goureechurn to the estate of Chuckerbutty was considerable ; it could not have been less than Rs. 20,000, and it may by possibility have amounted to Rs. 47,000. There may not, or may, have been an intention upon the part of Goureechurn to prefer the wife to his other creditors ; but if that was his intention, it does not necessarily invalidate the instrument. It is not proved that there was any contemplation of insolvency : the transaction of April, 1831, was more than two years before the insolvency, which did not take place until the month of December, 1833.
The suit was not to redeem her as a mortgagee; it