V.

COLLECTOR OF

SURAT.

terial whether the Tora garas huk is or is not, liable 1859. to attachment and sale by the Sheriff, or whether any SUMBHOOLALL property passed to the Appellant by that sale, there GIRDHURLALL being nothing in the facts, or by law, to distinguish THE the case of the Appellant from that of an ordinary purchaser at a Sheriff's sale. He virtually purchased only the right and interest of the Defendant in the original suit in the Tora garas, the subject of the attachment and sale. If a party buys, whether it is real estate, a chattel, or a chose in action, Courts of law and equity recognise the maxim "caveat emptor.' There is no fraud in the case, nor even an implied warranty of title. Early v. Garrett (a), Cripps v. Reade (b), Thomas v. Powell (c), Morley v. Attenborough (d), Chapman v. Speller (e). When the Appellant paid his money and got his conveyance there was an end of the matter so far as affects this Respondent, and the decree of the Sudder Court was, therefore, right in deciding that the Appellant had no legal claim on this Respondent in respect of the money received by him through the Court at Surat in satisfaction of his decree, even if the Tora garas be held inalienable. Another ground we insist upon is, that the Appellant ought to have appealed direct to England against the decree of the Sudder Dewanny Adawlut of the 20th of April, 1853, which annulled the former decree of the same Court, dated the 19th of December, 1849, and that it is now too late to question it.

Mr. R. Palmer, Q.C., was heard in reply.

The case stood over for consideration.

(a) 9 Bar. & Cr. 928.

(b) 6 Term. Rep. 606.

(c) 2 Cox. 394.

(d) 3 Exch. Rep. 500.

(e) 14 Q. Ben. Rep. 621.

by

Their Lordships' judgment was now pronounced 8th Feb.,

The Right Hon. Lord KINGSDOWN.

This is an appeal from a decree of the Sudder Dewanny Adawlut of Bombay, by which it has been decided that a certain annual payment called a Tora garas huk, is not by law capable of alienation, and that the purchaser of this interest at a judicial sale is not entitled either to have the sale enforced, or to have his purchase-money refunded to him by the individual who has received it.

The case is one, in many respects, of a remarkable character, and it appears to their Lordships to be advisable to state the circumstances in some detail.

Tora garas huks, whatever may have been their origin, are payments which, for many years before the period of the transactions which have given rise to the present suit, had been made by the Bombay Government through their Collectors in the different Zillahs of Guzerat. The names of the persons receiving such payments, with the amount to be paid to them, were entered in the books of the Collector, and the payments were made according to the entries. in such books out of the moneys received by the Collectors.

Amongst other such entries in the books of the Collector of Surat, was a sum of Rs. 347. 13 a., payable out of the Pergunnah of Orpad, and which in the year 1839, was payable, and had for some years been paid to a person named Bharmulsungjee. This annual sum is the subject of the present suit; Bharmulsungjee was also in the receipt of another Tora garas, payable out of another Pergunnah within

1860.

GIRDHURLALL

v.

the same Collectorate, of Rs. 883. It appears that 1859. these two Huks had previously belonged to a person SUMBHOOLALL named Koonsurwanjee; that he had died, leaving two widows named Kasooba and Omedba, who had suc- THE COLLECTOR OF ceeded to this property; that these ladies had adopted SURAT. Bharmulsungjee as their son, and that thereupon these

Huks had been transferred into his name in the books of the Collector.

In the year 1839, a suit was instituted in the Court of the Sudder Ameen of Surat by the Respondent, Nusserwanjee against Bharmulsungjee, and against Kasooba and Omedba, in order to recover a debt due from these parties to that Respondent, and which debt was secured by a mortgage of the two sums of Tora garas standing in the name of Bharmulsungjee.

Pending the proceedings in this suit, Nusserwanjee caused a sequestration to be laid on these Tora garas huks in the office of the Collector of Surat, the nature and object of which could not but be known to the Collector.

On the 23rd of July, 1839, Nusserwanjee obtained a decree in his suit for the sum of Rs. 12,745, with interest, against the mortgaged property, and against the Defendants personally. Regulation IV. of 1827 of the Bombay Code of procedure directs the mode in which the attachment and sale of any of the immoveable property of the debtor against whom a decree has been obtained are to be effected. It is thereby provided, that on a petition for such sale, the property shall be distinctly specified, with the probable value thereof; that the Court, on hearing the application, shall issue such order as may be requisite towards the enforcement of the decree; that whenever a sale takes place under a decree, it shall be by public auction, after public notice, by a proclamation

1859. in a specified form, intimating that the property will SUMBHOOLALL be sold on a day named, unless the sale shall be obGIRDHURLALL jected to by another claimant, who, within fifteen

V.

THE days after the date of the proclamation, shall estaSURAT. blish, to the satisfaction of the creditor, or of the

COLLECTOR OF

Court, a right or interest in the property under attachment, or shall enter into an engagement to prosecute his claim within a limited time.

In order to recover the amount awarded to him by the decree in the manner pointed out in this Regulation, Nusserwanjee, on the 21st of September, 1839, presented a petition to the Judge of the Zillah Court, and thereby, after stating the decree which he had obtained, and the sequestration which he had issued, he prayed that the Sheriff might be ordered. to attach and sell the produce of the under-mentioned Tora garas belonging to the Defendant, according to

the usual custom.

The Tora garas (which included the particular sum now in dispute) was thus described :-" The Defendants, Kasooba and Omedba, used to receive the produce of the Tora garas huks, belonging to their husband, Koowursungjee, payable from the Tannahs of the Pergunnah of Orpad and the Talook of Koorsad. In the Sumvut year 1887, the said Defendants, Kasooba and Omedba, adopted the Defendant, Bharmulsungjee, as their son. From that day forward, the amount of the produce from the said Pergunnahs has been received by the Defendant, Bharmulsungjee. The value thereof is about Rs. 11,000.”

On the same day, the 21st of September, 1839, an order was issued by Mr. Herbert, the Assistant Judge of the Court, to the Sheriff, directing him to proceed according to the usual practice, and to make a return in thirty-five days.

Under this order the Tora garas in question was 1859. attached by the Sheriff; proclamations of sale were SUMBHOOLALL issued, and the sale was fixed for the 19th of Oc- GIRDHURLALL tober.

Before, however, the day fixed for the sale, Bharmulsungjee presented a petition to the Court, praying that the sale might be delayed for six months, in order to give him an opportunity of satisfying the Plaintiff's demand, which he promised to do within six months.

The sale accordingly was stayed by an Order of the Court, till Nusserwanjee Pestonjee should have answered the petition. He objected to any further delay, and on the 14th of November, 1839, applied to the Court that the sale might be completed; that fresh proclamations might be issued, and that, as the property was likely to sell better at Surat than in the village in which it was situate, the sale might be made at Surat.

On the same day the Judge made an order directing the Sheriff to enter into an investigation of the proceedings which had already taken place in this matter, and to make a report, and to inquire whether there was any objection or not to selling the property in Surat. The Sheriff made his report, stating the proceedings which had already taken place, and that there appeared to be no objection to the sale being made in Surat.

On the 27th of November, 1839, Mr. Elliott made an order upon this report, that the Sheriff should sell the Tora garas of the Defendant in Surat, but that he should give notice of the sale of this Tora garas to the inhabitants of the Zillah in which the Tora garas was, as also to the inhabitants of the city of Surat, and should take care that no fraud or mistake was permitted to take place in the sale.

V.

THE COLLECTOR OF

SURAT.