On appeal from the Sudder Dewanny Adawlut, Bengal. THIS was a petition to restore, or, in the alternative, to admit a fresh appeal, which had been treated as abandoned, under Statute, 8th & 9th Vict., c. 30, sec. 2, for non-prosecution within two years. petition stated that leave to appeal to England 9th May, 1857. In circum ing and oppo- by the Sudder Court upon the same the same par treated under stances showThe ing conflicthad site decisions been granted by the Sudder Court on the 18th of January, 1848, and that the transcript of the pro- question at ceedings arrived and was registered at the Council issue, between Office on the 7th of November, 1850. That an agent ties, an appeal had been appointed in England in the month of May, the Statute, 1852, and that the agent attended at the Council 8th & 9th Office on the 24th of that month, with a view of sec. 2, as proceeding with the appeal, and was informed that the Respondent had appointed agents in this country tion, was reon his behalf, and that he immediately put himself in terms of paycommunication with them to join with him in paying ing costs and half the expense of printing, when the Respondent's to lodge cases agents informed him that they had no remittances to lodge security or a Bond in England Vict., c. 30, abandoned for non-prosecu stored upon undertaking forthwith, and * Present: Members of the Judicial Committee,-The Right to the amount Hon. Lord Wensleydale, the Right Hon. Dr.Lushington, the Right of 5001. Hon. Sir Edward Ryan, and the Right Hon. Sir John Dodson. Where an appeal has been treated. as abandoned by Statute, 8th & 9th Vict., c. 30, sec. 2, their Lordships have no power to grant leave to institute a new appeal: only a discretion to allow the original appeal to be restored. 1857. ROSOONDREE DEBIAH v. RAJAH PRAN from India to enable them to do so, but promised to RANEE HUR join when they received sufficient remittances. That the Appellant's agent in consequence delayed taking a copy of the transcript proceedings till the 3rd of KISHEN SING February, 1853. That the Sudder Dewanny Adawlut of Bengal, on the 12th of May, 1856, in another suit in which the same question was raised between the same parties, had held, regarding the family usage as to the division of the Raj in dispute, directly in opposition to their decree made in the suit now appealed. That on learning the result of this decision, the Appellant's agent prepared the transcript for printing in the month of January, 1857, when he became aware for the first time, that on the 24th of December previously, the appeal had been treated as abandoned within the provisions of the Statute, 8th & 9th Vict., c. 30, sec. 2. That the Appellant was desirous of prosecuting the appeal and bringing the same to a hearing, and that the delay was caused by no wilful intention, and the Petitioner prayed that the appeal might be restored or that special leave to appeal against the judgment of the Sudder Dewanny Adawlut might be allowed to the Appellant. Mr. Wigram, Q. C., in support of the petition, Asked for an order for special leave to appeal.-[The Right Hon. Dr. Lushington: I very much doubt if the appeal is not lost, under the Statute, 8th & 9th Vict., c. 30, sec. 2, or that it can have been intended that their Lordships should have power to grant leave to institute a new appeal. It is a question of great difficulty. The real question is one of restoration, not of granting leave to appeal.] The object of that Statute was to remedy the mischief which existed 1857. ROSOONDREE of allowing appeals to stand over for an indefinite time. It is an inherent right in the Crown to RANEE HURpermit appeals at any time.-[The Right Hon. Lord Wensleydale: The Statute meant that the appeal should be finally put an end to, not that there KISHEN SING should be a fresh power to appeal.] Mr. Leith opposed, Submitting that conditions ought to be imposed, if the application was granted, for the due prosecution of the appeal. The Right Hon. Dr. LUSHINGTON: Their Lordships, under the very peculiar circumstances of this case, are inclined to allow leave to be given for the purpose of prosecuting this appeal. But their Lordships wish it to be distinctly understood, that it is the very peculiar facts attending this case which induce their Lordships to come to this conclusion. It appears upon the petition of the Appellant that there have been two opposite decisions in India, upon what it seems must be considered substantially the same question; and it might be productive of very great inconvenience, and would certainly not be very creditable to the law as administered in India, if such two conflicting decisions were allowed to stand. Their Lordships greatly lament the delay which has taken place upon the present occasion, and certainly, in many respects, it appears to be utterly unjustifiable; but, for the reasons I have stated, their Lordships are inclined to adopt the course of allowing the appeal to be restored. It must, however, be understood that the costs of this application must be paid by the Appellant, and security given here v. RAJAH PRAN 1857. to the amount of 5007., or a Bond in such terms as RANEE HUR- their Lordships shall think fit to prescribe, and the Appellant must also print and lodge his case without delay. ROSOONDREE DEBIAH v. RAJAH PRAN Mr. Wigram: Will the Court allow a re-deposit in India, or, if it should be found that the deposit remains in Court in India, will fresh security be required here? Dr. LUSHINGTON: Security must be entered into here for 5007., or a Bond to secure that amount. JOHN COCKRANE Appellant, AND HURROSOONDURRY DEBIA and others Respondents.* On appeal from the Sudder Dewanny Adawlut, Bengal. 2nd, 3rd, & THE question in this case was, whether the principal Respondent having been in uninterrupted possession 7th Feb., 1857. €, a Hindoo, by his Will and others *Present: Members of the Judicial Committee,-The Right appointed G. Hon. T. Pemberton Leigh, the Right Hon. the Lord Justice Knight Bruce, the Right Hon. Sir Edward Ryan, the Right Hon. the Lord executors, and Justice Turner, the Right Hon. Sir John Patteson, and the Right thereby gave Hon. Sir William H. Maule. and devised Assessor,―The Right Hon. Sir Lawrence Peel. 1857. บ. DURRI DEBIA. of a Talook, named Durgapoor, the property in dispute, under a conveyance, for more than twelve years before COCKRANE the institution of the suit, the claim of the Appellant HURROSOONwas not barred by Ben. Reg. III., of 1793, sec. 14; or whether she had obtained fraudulent possession under a collusive conveyance, so as to bring the case within the exception to that bar provided for by Ben. Reg. II., of 1805, sec. 3, cl. 1. The facts of the case were as follow: On the 1st December, 1824, Goureechurn Bandopadhya, the husband of the Respondent, Hurrosoondurri Debia, borrowed of Doorgachurn Chuckerbutty, her father, the sum of Rs. 18,500, and gave his Bond ts secure the repayment thereof, together with interest thereon at six per cent. per annum. On the 3rd July, 1825, Chuckerbutty died, possessed of real and personal estate and property to a large amount, having first made a Will, whereof he appointed Goureechurn, and Bissonauth Mutty Loll, and Olhoychurn Bandopadhya, executors. By his Will he appointed the Respondent his residuary devisee and legatee. Goureechurn and Bissonauth proved the Will, and obtained probate from the Supreme Court at Calcutta, and thereupon took upon themselves the burden of the execution of the trusts thereof; but Goureechurn alone acted in the management as exe cutor. G. was declared insolvent under the Statute, 9th Geo. IV., c. 73. H. entered into possession of the property so conveyed to her, and continued to hold the same uninterruptedly till the institution of a suit by the Official Assignee of the Insolvent Court, a period of twenty-two years. Held, in the absence of any proof of fraud in the transaction of 1831, or unfairness against H. in obtaining possession, so as to bring the case within the exception in cl. 1, sec. 3, of Ben. Reg. II. of 1805, that the possession by H. for more than twelve years was, by Ben. Reg. III. of 1793, sec. 14, a bar to the suit. |