1857. บ. HURROSOON was to impeach her title upon the ground of fraud; nor as a suit for redemption has it been treated by the COCKRANE Appellant, because it has been stated in effect on his part at the Bar, that if the transactions of 1831 are con- DURRI DEBIA sidered as forming a good mortgage, it would not be worth the while or money of the Appellant to redeem; a statement which is not surprising when it is seen that the valuation of the Talook in the plaint is placed at Rs. 12,000; and even considering that as under the true value, we cannot possibly place the value of the Talook higher than the amount of the security upon. it. It has been said that all this was a mere fraud for the purpose of cheating the creditors of Goureechurn. Their Lordships are of opinion, that the evidence affords no ground to support such an allegation. Independently of the side on which the burthen lies of supporting such an allegation (even if the burthen had been upon the widow to support the fairness of these transactions), their Lordships are of opinion that the transactions would have been supported, especially considering the great length of time that has elapsed since the year 1831; without laying any stress upon the decease of persons who could give evidence, and who have died in the interval. This case, indeed, would have been clear of all difficulty, but for two circumstances; one, the transaction of June, 1832; the other, the judgment of the Supreme Court, which has been so often mentioned during the argument. Now, over the transaction of June, 1832, there seems to hang some mystery. Their Lordships are. not perfectly satisfied with any account which has been given of it; but the question is, whether it affords evidence of fraud sufficient to impeach the 1857. COCKRANE V. HURROSOON prior transactions of 1831; and their Lordships think it does not. Whatever may have been the reason which induced those who were parties to that transPURRI DEBIA. action to treat the Talook in question as valued at Rs. 8,000, to make a sale of it at that value to the person for whom Nilmoney Mutty Loll took Benamee; whatever may have been the motive for that transaction-whether it was foolish or wise, whether fairly or unfairly intended-their Lordships think that the evidence wholly fails to connect the widow with it as a fraudulent transaction, or as one in any sense unfair. Whatever character, therefore, is given to the instrument of 1832, whoever is believed upon the subject, their Lordships are of opinion that, in the case of the widow, it is wholly immaterial; her title under the instruments of 1831 is in either case not affected by it, and, as far as she is concerned, she cannot be prejudiced by treating the cause as if that instrument had never existed. With regard to the judgment of the Supreme Court, it is plain, that considering the parties to the suit in which that judgment was given, it is not evidence in the present case, but it was treated in the Courts in India, as their Lordships would be disposed to treat it here, with the greatest deference and respect as a decision proceeding from such a tribunal. We must recollect, however, not only that that suit had a different object from the present, independently of the difference of parties, but that the evidence here is beyond, and is different from, that which was before the Supreme Court upon the occasion of delivering that judgment. Their Lordships have the high authority of Sir Lawrence Peel for saying, that, upon the present materials applied to the present issue, he entirely agrees 1857. HURROSOON with the conclusion that the title of the principal Respondent is not impeachable for fraud. He entirely COCKRANE concurs with the opinion of their Lordships in this ease, and in the conclusion to which they have arrived, DURRI DEBIA namely, that this has been an unsuccessful attempt, and I fear it may, without impropriety, be called a litigious attempt, after a long lapse of years, to impeach the fair title of a person who, if there has been fraud, has, upon the evidence, as it strikes their Lordships, been a sufferer from that fraud, and in no sensea participator in it. Their Lordships are of opinion that the case entirely fails upon the merits, and this relieves them from the necessity of deciding some other points on which they might have made some observations. As. it is, they cannot part with the case without expressing some regret at the inference they are obliged to. draw from the materials before them, with respect to the character of this litigation. It is impossible for them to believe, upon the present materials, that the true state of the case, as between Cockrane and Mackenzie, was brought under the notice of the Insolvent Court. Their Lordships are of opinion, that before obtaining leave from the Insolvent Court to prosecute this suit, the true nature of the case should have. been explained, and the Insolvent Court should have. had an opportunity of exercising its controlling judgment upon the propriety of the Official Assignee lend ing his name for such a purpose, and allowing a gentleman, who was desirous of spending a sum of Rs.. 400, or Rs. 500, for the purpose of buying a right of this description, to use the name of a public Officer in the way in which the Appellant's name has been allowed to be used; for this, to every substantial pur 1857. COCKRANE บ. HURROSOON pose, is the suit of Mackenzie, from the beginning to the end, and of him alone. Their Lordships, however, do not decide the case upon that point, whether viewed [DURRI DEBIA, as the suit of the Appellant or of Mackenzie; it is a case in which their Lordships consider, without the slightest doubt or hesitation, that the appeal ought to be dismissed with costs, 15th & 16th THIS suit (a) was instituted by the Respondent, Beglar, for possession of four distinct estates consist July, 1856. A., by four deeds, conveyed certain real estates near Dacca in Benamee, for S., his mistress, by virtue of which she took possession. By a Will made subsequent *Present: Members of the Judicial Committee, The Right Hon. T. Pemberton Leigh, the Right Hon. Sir Edward Ryan, and the Right Hon. Sir John Dodson. Assessor,-The Right Hon. Sir Lawrence Peel. (a) See case reported, nom. "Bibi Takoi Sheraab v. Mukeethur Vardoon," 7 Sud. Dew. Adaw. Rep. 547. to the date of the conveyances, A. appointed G., his illegitimate son, executor, and after satisfying certain charges thereby created, which would exhaust his whole estate, gave G. a life estate in the residue. A. was involved and in pecuniary difficulties, and an action was brought against him in the Supreme Court at Calcutta by some of his creditors, which action was pending at the time of his death, and was revived against G. as A.'s heir, and judgment obtained against G. without reference to SHEROB V. BEGLAR ing of lands and houses in the District of Dacca, with 1856. mesne profits, in the possession of the Appellant, claim- BEREETOKAI ing as purchaser under four deeds of conveyance from one Avietie Ter Stephanoos, an Armenian merchant of Dacca, and also as mortgagee under a foreclosure. The principal question was, whether these conveyances were bona fide, and for valuable consideration, or collusive and fraudulent as against Avietie's creditors. The Respondent Beglar's title was as purchaser under a Sheriff's Bill of sale in execution of a judgment of the Supreme Court at Calcutta. The facts of the case are fully stated in the judgment. Mr. Wigram, Q. C., and Mr. Leith, for the Ap- Contended that the title of the Appellant as a boná his character as executor of A. Under an execution sale in satisfaction of this judgment, the Sheriff sold "the right, title, and interest" of G. to V. (whose interest afterwards became vested in B.) for a nominal sum. Ejectment by B. founded on the title under the Sheriff's Bill of sale, against S. and G. to recover possession of the real estate in S.'s possession, impeaching the conveyances made to her by A. as void as against A.'s creditors. The Court in India decreed possess on to B. on the ground of the conveyances being fraudulent. Decree of the Sudder Court reversed by the Judicial Committee by reason, First, that the title of S. to the lands under the conveyances was established. Second, that in the circumstances of G. having only an uncertain right in unascertained property, it was not such an interest as could be seized by the Sheriff under a writ of execution, and that the Bill of sale was void. |