SHEROB บ. BEGLAR. 1856. four parcels; so as to have been capable of being BEBEETOKAI Seized by the Sheriff; but that the Plaintiff had entirely failed to prove that the Respondent, Gabriel Avietie Ter Stephanoos, had any "right, title, and interest" in these parcels; or that any right, title, or interest passed to him under the Sheriff's Bills of sale, which would entitle the Plaintiff to possession. That the Will of Avietie had not been proved; but even if it had, it could not affect the real estate of Arietie. Neither was it shown that any interest of Avietic became vested in Gabriel Avietie Ter Stephanoos under such Will, other than as executor: the estates were not mentioned, and would not, therefore, pass. That the estates were, in fact vested in the Appellant under the conveyances. The charges created by Arietie would exhaust his estate, even if the four estates were included, so that there would be no residue, and, therefore, Gabriel's interest was incapable of being seized under a writ of execution. They further insisted that the proceedings in the Supreme Court were altogether irregular; that Court treating Gabriel as heir instead of executor, and that the judgment creditors could only attach, in satisfaction of their debts, such assets of Avietie as came to his hands; and if they were insufficient, then Beglar's remedy was to proceed against the real estate by impeaching the bona fides of the conveyances to the Appellant, and recover the balance due. Mr. R. Palmer, Q. C., and Mr. Maude, for the Insisted that the estates in question really belonged SHEROB υ. BEGLAR. therefore, not being bona fide, were void, Groves v. 1836. Groves (a), and liable to be seized by the Sheriff, the BEBEETOKAI transactions being collusive to defeat his creditors. Archbold's "Practice," p. 431 (Edit. 1840). That at Arietie's death the estate passed to Gabriel under his Will. Gabriel Avietie Ter Stephanoos v. Gasper Malcum Gasper (b). That whatever interest Gabriel took under the Will, whether equitable or legal, the title to recover the estates had become vested in the Respondent, Beglar, under the Sheriff's Bills of sale, in satisfaction of the judgment against Gabriel, who was liable to the debts of his father. Shunkerdial Patu v. Hurnam Singh (e); Macpherson, "On civil procedure," pp. 46, 67, 358, 364-5; Marshman's "Guide to the Civil Law," p. 734. The Right Hon. T. PEMBERTON LEIGH : In this appeal, it is very possible, from the course which the parties have thought fit to pursue, that it may not be in the power of their Lordships to arrive at the substantial justice of the case, whether they affirm or reverse the judgment. But we can deal with the case only in the shape in which it comes before us. The facts appear to be these:-The Appellant lived with an Armenian merchant, of the name of Avietie Ter Stephanoos, as his mistress. At what time this connection began, does not distinctly appear, but it began before the year 1827. During the continuance of this connection several transactions took place between Avietie and the Appellant, which ap (a) 3 You. & Jer. 163. (b) 7 Sud. Dew. Adaw. Rep. 58. (e) 6 Sud. Dew. Rep. N. W. P. 6. VOL VI. M 2 17th July, 1856. 1856. pear to have been in the nature of purchases and BEBEETOKAI Sales. SHEROB v. BEGLAR. Four different conveyances of property were executed by Avietie to the Appellant, all purporting to be conveyances made for a valuable consideration bona file paid. The first of these transactions took place in the year 1827; the second and third took place in the year 1832. One of the transactions in the year 1832, was a conditional sale in the nature of a mortgage, which was made absolute in the year 1840. The fourth was a transaction which took place in the year 1833, and was of this description. Avielie appears to have fallen into difficulties, and judgments, by a number of his creditors, having been obtained against him, a portion of his property was put up for sale in the year 1833, and purchased by an individual named Hurchundur, who is represented to have been an agent of the family of Avietie, and the conveyance and purchase under that execution was represented by Hurchundur to have been made on behalf of the Appellant, and, in 1837, the property was conveyed to her by him. Now, before the death of Avietie, several other suits had been instituted against him, one by a person of the name of Petrose, and two by another creditor of the name of Beglar. On the 17th of April, 1835, Beglar instituted these two suits, one claiming a balance of account, and the other claiming a sum of money for rent alleged to be due. It appears that Avietie lived but a few months, or, perhaps, a few weeks only, after the institution of these suits, and he died in the year 1835, before he had put in any defence to these suits. Upon his death a summons was taken out, calling on his heir, 1856. SHEROB BEGLAR. or representative, to appear and defend, and after some delay, Gabriel Avietie Ter Stephanoos, his son (though BESEETOKAI as it appears an illegitimate one only), appeared and took up the defence to these suits. He appeared as the son and heir of his father, Avietie. The suits seem to have been revived against him, without any very particular inquiry as to the nature of the interest he had, but he was treated as the representative of his father. Decrees were obtained in these suits, by Beglar against Gabriel, and the suits being suits originally instituted against the father for debts due from the father, of course the decrees ought to have been against the son in his representative character; decrees in short against the estates of the father. Probably that may have been the intention. of the decrees, but the language of them, according to our notion, is a little unsound. The first decree was made on the 31st of August, 1836, and the other in December of the same year. The terms of that, and the decree in the second suit (which appears to be much the same as the other), are as follow:- "The sum which the Plaintiff is entitled, therefore, to recover from the Defendant (who is the heir), is Rs. 381. Sa. 1c., for interest; and principal, Rs. 2,591, making a total of principal and interest of Rs. 2,972. Sa. 13g. 1c., because, after the death of Avietie Ter Stephanoos, that Kahwaja Gabriel Avietie Ter Stephanoos, Defendant, is his son and heir, is evident from the answer, and the proceeding upon the record. Payment must, therefore, be made by the Defendant." This is the form in which the decree was pronounced in both suits. It certainly is one which seems in its terms to imply a personal liability on the part of the SHEROB 17. BEGLAR. 1856. son, but, at all events, it is a decree against the son in BEBEETOKAI his representative character; and had the proceeding been taken by Beglar as against what is called, in India, the decree-holder, no doubt the estates of the father might have been made responsible for that debt. Having obtained this decree, Beglar proceeded to attach the property which was in the hands of the Appellant as being the property of the deceased, his debtor, and liable, therefore, to the payment of his demand. But in the meantime various proceedings had taken place, partly in suits instituted by other of the creditors and partly in suits in which Beglar himself was a party, in which the Court had so dealt with this property that they had held that, prima facie, at all events, the whole of it was the property of the Appellant and could be recovered back from her only by a suit instituted against her. When, therefore, Beglar attempted to attach this property so belonging to the creditor of Avietie, the Sudder Ameen, before whom the case came, held, that he was concluded by what had taken place in the first proceedings, and that although his own opinion was, that these transactions were fraudulent, he could not, after what had been determined on the former suits, give effect to that opinion. From that decree there was an appeal to the Sudder Dewanny Court, and that Court confirmed the opinion of the Sudder Ameen, and referred Beglar to more regular proceedings to give effect to his claim. Now, if he had thought fit to pursue that course, the real question between these parties would have properly come on for trial. That instruments to the effect stated had been executed, appears to their Lordships to admit of no |