to that Court, and had also d e ~ n i t i v e ~ ~ a f f i r ~ ~ e d the judgment of a11 inferior Court,

in a nlatter over which they themselves declare they had no j ~ r ~ s d ~ c t ~ o n .

The ~ ~ p o n d e n t s , however, contended, that the decree appealed f rorn ought to

be ~ r n ~ e d , for the ~ol low~ng reasons:--

I. Because the Appellant never adopted the regular course of ~roceedings in a

Court of Justice, to establish tthe rights he claimed.

11. Because the Appellant was bound by the articles of a g r e ~ ~ ~ e n t , dated the 26th

of August, 1823, in which he had acqu~esced, and on which he for sonie t h e acted.

[31,7f 111. Recause the Order of the Coni~issi#ner, Mr. Chaplin, of the 3rd ~i Yay,

1826, was final.

Mr. Miller, Q.C., Mr. Wigram, Q.C., and Mr. Jackson, for the Appellant. Mr.

Serjeant Spankie, Mr. E. 3. IAoyd, and Mr. Edmund F. Moore, for the Respondents.

The Judicial Committee, after hearing the Appellant’s Counsel, dismissed the

appeal, and a ~ r ~ e d the ecree of the Sudder Dewanny Adawlut with costs, observing,

that it was quite clear, that the Sudder Dewanny Adawlut bad no power to entertain

the appeal from the decision of Mr. Chaplin in 1826, which was final; and, there-

fore, that the provisions of Regulation XXXX. of 1827 could not apply.

[I141 S O 0 R ~ A ~ ~ O W , - A ~ e ~ ~ ~ r ~ ~ ; C 0 ~ A ~ ~ ~ R Y B O O C ~ I A H , - ~ ~ s ~ ~ ~ e ~ ~ *

[ D e 17, 18381.

0% appeal f m m the ISz idr r~~ . ~ ~~~q~~~~ Adnwlut of J f n d ~ n ~ ,

A. p u r c h a s ~ a Bfootah of B. and lidd poss~sion till his death, when B. under

colour of a Bill of sale, alleged to have been executed by A. two days before

his death, obtained possession. On a claim brought by the Widow and

heiress-at-law of A. for recovery of the Sfootab and mesne profits, no sufficient

proof of the execution of the Bill of sale b a ~ i n g been given, possess~on was

a d j ~ i d ~ e d to her with mesne profits from the period of her husband’s death.

senz&Zc.-The Plaintiff i s liniitcd by the sum laid down in his plaint as mesne

profits, though by the evidence a larger sum appears due tu him [2 Moo. Ind.

App. 1271.

Rajah Cotaghery ~ i l a d r y Row, the late ~ u s ~ ) a n d of the Respondent, purchased,

on the 27th of April, 1819, from Rajah Row Vencata Niladry Raw, the Mootah of

Kirlunipoody, for Rs. 33,500, which he had paid at the time. The Mootah was

duly registered in his name pursuant to Beguiation XXQ. sec. 8, of 1802, and he

continued to pay the kist, and to enjoy the produce, and to transact the general

business re la t in~ thereto, until the 9th of March, 1822 (two days previous to his

death), when his Father, Srinnvasa Rom, undertook the i i i anage~~ie~t .

0x1 the 8th of March, 1822, Rajah Cotaghery Niladry ROT, being seriously in-

disposed, made his Will, whereby he ~ q u e ~ t ~ ~ the whole o f his estate ~ ~ n e l u d i n g

the Mootah of ~ i r l u i ~ p o ~ d y ) to the ~espo~ident , who was his legal heiress ~ccording

to the € T ~ n d o ~ law and local custom, and on the 1 l th of the same month he died, leav-

ing the Respo~~de~it , h s Widow aud lieiress-at- la^, him suroiving.

]ill51 The Respondent duly apprised the Collector of the ~ ~ ~ c u i ~ s t a ~ ~ ~ of the

ltajah’s death, and at the same time informed liini that ~ o t a ~ h e r y ~ i ~ a d r y had

executed a Will on the 8th (three days previous to his death), b ~ q u c a t ~ ~ ~ n ~ the wholr

of his estate, including the Mootah of ~ i r l u i n p ~ ~ o d y to her, a copy of which she for-

warded; and on the 28th, in obedience to the direction of the Collector, transmitted

him the origind.

* Present : embers of the Judicial C o n i ~ i t t ~ , - ~ r d ~ r o u g ~ a ~ ~ l , bfr. Baron

Parke, Mr. Justice Rosanquet, the Chief Judge of the Court of Bankruptc~ [Sir

Thomas Erskine], and Dr. Lushington.

Privy Counefilors,-Assessors, Sir Edwaxd Nyde East, Bart., and Sir Alexander

Johnston, Knt.

244

~ O ~ R ~ A ~ ROW lf. ~ ~ ~ A ~ ~ ~ R ~ ~ O ~ C ~ ~ ~ ~ 118381 11 MOOR€ IND. APP., 126

Rajah ~ e n c a t a Niladry Row, however, set up an adverse claim to the Mootah of

~irlumpoody, under a Bill of sale, which he produced, dated the 6th of March, then

preceding, which purported to be a re-sale of the Mootah for the sum of 1%~. 33,500,

tlie price at% mhich the deceased had origi~iaIly purchas~d it. This ~nstrument was

in the foiIowin~ form : - ‘ I 1 who a m t~~en ty -~uro years old, being since s ix iiionths

a ~ ~ i c t e d with bodily pain in co~~sequence of the sickness called r d a jadiam, X am

certaii~ from tlie state of niy body, and from the opiition of the Doctors, t h t I will

not live ; I have in con~eque~ice this day sold to you for Ks. 33,500, the ~ ~ ~ r ~ u ~ n ~ o o d y

Mootah which I purchased from you for the same ainount, on the 27th April, 1819.

And having thus transferred the Mootah to you in perpetuity, you are henceforth

to pay the ~ o m ~ ~ a n y ’ s revenue of Rs. 23,306. 8. annually, according to the kiste, arid

yourself and your posterity are to enjoy the profits which may be derived from the

said Mootah;” he alleged also, that the deceased had address^ to the CoEector an

ami, or Letter, of the same date, informing him of the sale of the Mootah, mid re-

quest~iig him to register the same to V e ~ ~ c a t ~ Niladry Row.

Waving o b ~ i n e d the assistance of S r i~avasa Row, [ll6] the ~ a t h e r - i n - ~ a . ~ ~ of the

Re~ponde i~ t~ Vencata Niladry Rew took possession of the ~ ~ t a h and the villages

belong in^ thereto, and presented an ami to the Cdleetor, stating the c~rcun~st~ances

of the sale, and requesting that the Mootah might be registered to hini.

At the tinie of the decease of Rajah C o ~ a g ~ ~ r p Niladrp ROK, a suit was pending

in the Provincial Court, i n s t ~ t u ~ e d by f i i izl irri the year 1819, for the ~ ~ ~ o ~ r e r y of cho

village of ~ u g a p a t y Nagaram, ~ p ~ e r t a ~ ~ i i n g to tlie Mmtah of ~ ~ r ~ u i ~ ~ p o o d ~ , rind on

the 3rd of April, 1822, Vencata Niladry Itow, in an arzi addressed to that Court.

requested to be allowed to promote the suit, on the ground of his having bought the

Mootah on the 6th of March preceding. The Respondent, however, presmted a

counter-pet~t~on, s ta t i I i~ that Vencata Niladry Row had no claim whatever to he

a d m ~ ~ t e d as a party to such sui t ; that the Bill of Sale was fa~r ica ted by him after

the decease of her Eusband, and was not genuine ; and that her I ~ i ~ s ~ a n d executed 8

Will to her, she being his heiress according to IIindoo l a m j and she reques~ed the

Court to pass an ord0r for the prosecution of the cause being conducted by hereelf.

The Court, having taken both peiitions into consideration, on the l7rh of April,

1822, rejected the a p ~ ~ i c a t i o n f Vencata ~ ~ l a d r y Row, on the ground of the admis-

sion on his part that the alleged transfer had not been registered, and allowed the

Respondent to p~,osecute the suit.

On the 9th of August, 1822, the ~ ~ e s ~ o n d e n t addressed an ami to the Board of

Revenue stating in it the c i rcu~s tance of Vencata Niladry Roa- having eI~deavoured

to obtain possessiori of her rightful [If71 Mootah, and requested that i t aiiglit be

put into her possession; but, on the 29th of the same month, the! Collector, in 8

Letter addressed to Vencata Niladry Row, wrote as follows-“ I having c o ~ i i ~ t ~ ~ i ~ c a t e d

to the Board of Revenue the whole of the c i r c ~ ~ ~ ~ s t a n c e s connected with the subject,

they have issued orders for the said ~ o o t a h of ~ ~ r l u m p o o d ~ being tra~isferred in

your name, and I have accordiii~ly registered the said Mootah in your 11a11ie: ~011-

se~uentIy, I ~ e r e ~ , i t ~ i send enclosed the advert~sement, published for the purpose of

all those concerned submitting to your orders.” In consequence of this Order, the

Board of Revenue indorsed on the ~espondent’s arzi of the 9th, that t l ~ e request

contained in the Colleetor’s Report, to permit the Bill of Sale to be ~ e g ~ ~ t e ~ . e d , had

been complied with, but that it would be no bar to the R ~ p o ~ d e ~ ~ t ’ s recovering her

right by legal proce~ ings .

~ e i i c a t a Niladry Row c o n t ~ n u ~ n g to retain possession of the Moota~i, &+

s ~ o I i ~ e I ~ t filed Ber plaint‘ in the Provincial Court on the 27th of Dc?ceniber, 1824,

whereby, after stating to the egect above set forth, she insisted, that the Bill of Sale

alleged to have been executed by her late Husband on the 6th of March, 1822, t~

f a b r ~ c a t ~ o n by Vencata NiIadry Row; that her Husband being of great wealth, had

no need to sell the Xootah in question, and if he had already sold it, would not

have caused i t to be ineerted in his Will, executed two days ~ f t ~ s w a r d s ; that had the

pretended sale of the Mootah five days before the death of her Husband been a rea1

transaction, Vencata N i l a d r ~ Eow (the ~ e f e n d ~ ~ l t ~ , who was a man of ~ n ~ e l ~ ~ g e ~ i c e ,

would have apprised the head Ass~stant in charge of the circumstance, and have got

the transfer 11181 reg~stered, the head Assistant residing a t the distance of only a

few hours’ walk; that the register of the transfer (after the death of her usb band^

245

11 ILYIOOEE INR. APP., 11s SOORIAH ROW U. ~ O ~ ~ G ~ E R Y ROOQHIAI~ 118381

was illegal, and contrary to the custom of the country, and repugnant to the prin-

ciples of section 8, regulation xxv. of 1802 ; and she prayed, that the Court would

pass 4 decree in her favour, that, the Defendant, Vencata Hiladry Row, might pay

her Rs, 25,387, the amount of revenue, after deducing the permanen~ assessment

for the years 1822 and 1823, aad restore the Mootah of Kirlu~poody} together with

the costs incurred.

On the 23rd of May, 1826, Veneata ~ ~ l a d r ~ Row put in his answer, asserting that

~ r i n a v ~ ~ ~ Row, was as the unse~arated Father of the lata Rajah Cotag~~ery Niladry

Row, h i s heir, and denied that Rajah Cotaghery NiIadry Row had purchased the

~ o o t a h from him, though be insisted upon the validity of the Bill of Sale, and iiu-

peached the T’vill as a forgery, assert in^ that he, Vencata Niladry Row, the De-

fendant, and held the n ianagen~~nt of the M ~ t ~ h up te the very day on which the

~ a ~ n t i ~ ’ s late Husband sold it to him.

The replication and rejoinder having been filed, and the Court, in confirmity

with clause 3rd, section 10 Regulation XV. of 1816, recorded that the points to

be established bg the respective parties were :---By the Plaintiff,-the net annual

profit derived by the Defendant from the ~ ~ t ~ h in the Fusiy year 1232-1233 : By

the Defend~i~t,.-~hat the ~ ~ a ~ n t ~ ~ ’ ~ late usb band sold the ~ ~ r ~ u I n p o o d ~ ~ ~ o o t a h to

him for Rs. 33,600, on the 6th of March, t822,-that the Defendant brought the

transaction to the notice of the head hssktant Collector in charge on the 7th of

Mart:h, 1822, and the net profit derived by him from the Mootah in the Fusly years

E1191 Both the Plaintiff and Defendant produced in evidence the documents

already alluded to, and examined w~tnesse~ in their proof: they also produ~ed wit-

nesses on either side, to prove the a r~~oun t of the niesne profits, but the Books which

were in the Appellant‘s custody were not produced.

In the ~ e ~ n t i m e , on the 5th of arch, 1828, and before the decree in the cause

was pronounced, Rajah Vencata Niladry Row died, leaving Sooriah Row the present

Appellant, an infant, his Son and heir, by whom, through his guardian, Chalekany

Dhurma Row, the defence was thenceforth conducted.

On the 12th of March, 1828, the Provincial Court prono~nced its decree in

favour of the Respondent, expressing its opin~on on the merits of the case in the

f o ~ l o w i n ~ terms:-“That this cause had its origin in forgery, and was to be

s u ~ ~ o r t e d by perjury, vas to be feared by a view of the pleadings. If Rajah

~o taghe ry Niladry Row was not deranged for some days previously to his death,

the Will which tlie Plaintiff asserts he made in her favour, and the Bill of Sale

which the Defendant asserts he exwuted in h i s favour, cannot both be true : he may

have executed neither. The legal cons~deration, however, of the a ~ t h e n t i ~ i t y of the

Will need not detain the Court ; it i s only in a moral point of view that they need

doubt, whether the Plaintiff also niay not. have had her Agents of forgery to ante-

date a Will two days before the Bill of Sale, and solely for the purpose of counter-

mining it. The execution of the Will was unnecessary, as the Plaintiff would be

Rajah Cotaghery Niladry Row’s heir without that formality, and, therefore, evidence

on that point was not calIed for. It is otherwise, however, with regard to the Bill

of Sale; 011 its authenticity or other-[l2~]-wise depends the issue of this suit. The

Court have no hesitation in p r o n o u n c ~ n ~ it a forgery. So evidently a r t i ~ c ~ a l is the

s t a t e ~ e n t of ~efendant’s witnesses in echo of his laboured defence, as to neutra~ize

any s ~ r e n ~ t ~ l that the u n h e s ~ t a t i ~ g m a i i ~ i e ~ in which they uttered it might give to

their evidence; and to render it of such Eittle value, that the Court would as soon

think of decreeing away a ~ e m i n d a r ~ upon the evidence of as many Firashm (menial

servants). So scrupulous are they in giving their testimony, that they will not even

allow the order in which the several persons entered the Assistant Collector’s Cut-

cherry ( 0 ~ 0 % ) six years ago to =cape their s e c o ~ e c t i ~ . The fluent and un-

hesitating manner in which they gave their depositions may, however, be accollnte~

for i they may have rehearsed and repeated the story over 90 often, that they actually

bdicvo it to &e true, and certainly there was ample time for concocting the defence

and arranging the ~~.~~~~~~~ ~ ~ ~ ~ ~ ? ~ ~ ~ . On the 7th of February, 1825, Defei&nt’s

Vakeel8 aaFp1ied for and obtained leave to give an answer in t w a mox&s ; on the

Of April they applied for and obtained leave of six weeks more, making thrw months

and a half, under pretence of requiring copies of certain documents from tile Gut-

246

1232-1233,

SOORIAW ROW e. COTAGHERY BOOCEIAH [I8381 11 BIOOEE INR. APP., 12%

cherry of the Collector of ~ a j a ~ u n d r y . On reference to their long answer, it i s

evident that t h i s was mere pretence for the purpose of gaining time, for there i s not

a document even alluded to but of which Defe~dant must already have had a copy,

such as the Bill of Sale, and arzis to the Collector, or a t all events have known its

contents, and their production to tlie Court, along with the answer, was of course

not required, and not till upwards of tbree [I211 months after the rejoinder u;as

given.” In conclus~on, the Court p r o c ~ d e d to say, “That they might not be

s u s p ~ ~ e d of any wisli to avoid trouble, the Coust have examined the ~ ~ t n e s s e s named

by the parties ; but it was evidently not ~ ~ ~ e s s a r y , for the ~ e f e n d ~ ~ ~ ~ in his a n s ~ ~ e r

has clearly proved his statentents to be false. In the first place he has stated, that

he purchased the Mootah of Kirlurrlpoody on the 2lst of Septeiiiber, 1828, on his

own account, though from regard for: Rajah Cotaghery Siladrp Row he registered

i t in his name ; but in his petition to the Sudder Adawlut, he alleged, that he ussold

i t to Rajah (~otaghery Niladry Bow on the 27th of April, 1819, and in his third

statemeat now before the Court, he declares that he again purchased the ~ o o ~ ~ h

on the 6th March, 1822, from Rajah Cotaghery Ni ladq Row, four days before the

latter died, and for which purpose the Deed of Sale, numbered 28 in this Record,

was gisen to the Defendant. If these transactions actually occurred as detailed in

the answer, the Defendant must have paid twice over for the Mootah of ~ i r l u n i ~ ? ~ d y ,

but neither of the statements are true; and it i s rather extraordinary, if the ~ o o t a ~

were only registered in the name of Eajah Ootitghery Niladry Row, that tie should

have collected the produce of it for three years, and when a t the point of death he

should be paid the amount of Rs. 33,500 by Nifadry Row for -vr.hat, if he spoke the

truth, actually belonged to himself u t the tiine. From the above view of the case,

the Court 81.e of opinion that the Plaintiff’s claim to the PiiCootah of ~ ~ r l u n i p o o d y is

clearly ~ t a ~ l ~ s h e d , an that the Defendant’s attempts to dispossess her of property

which she legally inherits from her deceased Husband, has been backed only by

perjury and forgery. The decree, therefore, is, that the P la in-~l22] - t i~ (the Re-

spondent) be put in possession of the Moocalt of ~ i r l u ~ p o o ~ y , and the value of the

produce sued for, being 25,387, and that the D~fenda~~ t ’ s heirs do pay all costs.”

Sooriah Row, being d i~a t i s f ied with this decision, appealed from it, by his

guardian, to the Sudder Demltnny Adawlut, and on the 19th of October, 1831, the

appeal was heard, and a decree made, a ~ r ~ ~ i u ~ tlie decree of the Court below.

111 this decree of aErrnance, the Sudder Dewanny Adawlut stated as foltows :-

‘‘ It is quite evident that the whoIe merits of this case must neccssarily rest upon the

validity of the d o c ~ i ~ e n t filed by the Father of the Appellant, namely, the Bill of Sale

said t o have I w n executed, to him by the deceased, Rajah Cotaghery Niladry Row,

on the 6th March, 1822. This d o c u i ~ ~ e ~ t , supposing it to be valid, proves too niuch

for the Appellant’s case, inasmuch as it proves most decisively that lctajah Cotaghery

Niladry Row did purchase tb6 Eilootah from the Appellant’s Father, and that the

denial of such trmsaction by the Appellant’s Father is utterly false and unfounded.

This fact i s proved by the document itself, and >vhich document was filed by Rajah

NiIudry Row. The Court, therefore, arrive a t this conclusion, that Cotaghery

Niladry Row possessed the Mo0ta.h of ~ i r I u ~ p o o d y b right of purchase, But the

Court are of op~nion, that its re-purchase by the lake Vencata Niladry Row is by no

means proved. The evidence in support of i is, in the opinion of the Court, totally

unworthy of credit, ~ndependent of the rno ives assigned for the sale, which are

various: firstly, that Cotaghery Itow sold i t to satisfy his Creditors; and secundly,

that it was to pay off the debt of the original ~ u r c ~ ~ a s e - ~ o n e y . The court entirely

[123] concur in opinion with the Provincial Court that the case of the Appellant

has been backed both by perjury and forgery.”

The Court, therefore, affirmed the decree of the Provincial Court, and a d ~ u d g e ~ ,

that all costs should be paid by the Appellant.

The Appellant appealed from. this decree to His late Majesty in Council; prayirig

that &e saine might be resersed, for the following reasons :-

I. Because the validity of the purchase, by Bill. of sale and r e g ~ s t r ~ ~ ~ o ~ ~ , u s

fully e s~a~~ l i shed by the Appellant’s evideace in the cauee.

XI. Because the allaged Xi11 was a forgery.

111. Because the Courts below ought t o have required proof froni the P I ~ i ~ t ~ ~

247

11 MOORE IND. APP., 1-24

(now the Respondent) of her title as heir to Rajah Cotaghery Niladry Row, and

ought not t o have assumed that title in her against the Defendant in possession.

IT. Because it is proved that Rajah Cotaghery Niladry Row, until his death,

lived with his Father, Srinavasa Row, as an undivided family, and consequently

according to the Hindoo law applicable to this part of Hindostan, Srinavasa Row,

and not the Respondent, was the heir t o Rajah Cotaghery Niladry Row.

V. Because the Courts below have declared the Respondent entitled to the sum

claimed by her plaint as to the amount of the profits accruing from the Mootah

during the years Chitrabhanoo arid Swabhanoo (AD. 1822-3 1823-4), without any

evidence sufficient to establish the fact that such was the amount, and against

evidence proving that a much smaller sum was the actual amount of the profits

during that time.

The Respondent, on the other hand, submitted that E1241 the decree appealed

from ought to be affirmed, and relied upon the following reasons :-

I. Because, putting the Will in the ltespondent’s favour out of the case, and upon

which indeed i t i s not necessary to rely, Rajah Cotaghery Wiladry Row having died

without issue male, the Respondent, who was his Widow, and living with him a t the

time o f his decease, was, by the Hindoo law, his heiress, and the Mootah ia question,

if not aliened to the late Vencata Niladry Row, by the Bill of sale on which he relied,

devolved upon her, and she was entitled to ininiediate possession.

11. Because the Bill of sale relied upon, and produced by the late Vencata

Niladry Row, was a forged and fabricated instrument, and did not confer any title.

Mr. Miller, Q.C., Mr. Wigram, Q.C., and Mr. Jackson, for the Appellant. Mr.

Serjeant Spankie, Mr. E. J. Lloyd, and Mr. Edniund F. Moore, for the Respondent,

referred to Colebrooke’s Dig. vol. iii. chap. 8, p. 7.

Lord Brougham.-It appears to their Lordships, that there is no sufficient

ground for setting aside the judgment appealed against ; we concur in the opinions

expressed both by the Provincial and Sudder Courts, respecting the fraudulent

character of the Bill of sale set up by the Appellant, as well as the absence of all

satisfactory proof of the heirship of Srinavasa Row, and without, on the other hand,

inquiring into the validity o f the Will of the late Rajah Cotaghery NiIadry Row,

their Lordships are sufficiently satisfied, from both decrees below, that the Respon-

dent must be considered by the laws and customs of the country the legal heiress to

the Rajah, [I251 her Husband. The principal and indeed only question their Lord-

ships have had to consider is, respecting the amount awarded for the mesne profits

during the years the Appellant retained possession of the Mootah. On that point

i t was for the Appellant to satisfy us that injustice has been done him by the decree

of the Court, and though i t has been correctly observed, that the case of the Plaintiff

was scanty in point of evidence ; a sufficient answer has been made by the learned

Serjeant and Mr. More, that from the situation of the Plaintiff, she being out of

possession, the evidence of that which was in contest between the parties, namely,

the amount of mesne profits, was not so fully within her reach as i t was within the

reach of the Appellant, but that there was on her part evidence enough pm.mt2 facie,

as we should say here, to go to a jury. It was for the Appellant to consider how

he should meet that evidence. He might have rested upon the defect of the Plain-

tiffs evidence, but it being incumhexit upon him here to show the judgment of the

Court below to be wrong, we must see what was the nature of the evidence before

that Court. The Defendant who now appeals, might have left the Plaintiff to prevail

by the force of her own case, contending that she was not called upon to answer it

unless it was such as if unanswered disposed of the case: but, instead of relying

upon the weakness of the Plaintiff‘s case, he met it and undertook to rebut it by

counter-evidence ; we must look then to the sort of evidence produced, and certainly

that is not such as might have been expected. In the first place, it cannot escape

observation, that on the part of the Appellant, the Collector, who from his situation

must have been well acquainted with the whole subjectrmatter, better acquainted

than any other [126] witness, and with the means of information within his reach,

is not called. Then with respect to the Books, from which alone the true amount of

the mesne profits could be ascertained, whatever we may say as to the change of POS-

session of these Books in the subsequent stage of the cause, at that period when proof

248

SOORIAH ROW V. COTAGRERY BOOCHIAH [1838]

JIUI'TY BISS. DABEE 21. ~ ~ R R ~ R A ~ A U ~ ~ SOY [I8391 I1 NOORE INR. UP., 127

as to their a n ~ o u i ~ t was adduced on the other side, these Books Ivere within reach, in

the actual possession of the Appellant : and the Court below, we have no doubt, pro-

ceeded upon this principle, that everything is to be presumed against a party

keeping his adversary out of possession of the property, and out of possession of the

evidence, and taking means to retain that evidence in his own custody : and that the

proof ont the part of the P l a i n t i ~ was to be pressed most strongly against the De-

fendant, where by virtue of such possession he received the rents and profits of the

estate, and kept the Books in which the accouilts were recorded : arid this notwith-

standing the Plaintiff gave tlie most scanty proof of the rents and profits; a position

which we do not quite accede, though we agree in the main decision of that Court.

There is another point to which the Court below niust have attended, namely, that

the credibility of t,he witness is shaken by the gross discrepancy between the two

accounts, betweerr as. 400 on tlie one side, and ~ i p w a r d ~ of Rs. ~2,000 on the other.

The observation one cannot help making upon this part of the evidence is, that it

proves too much on behalf of the Defendant, who gives such suspic~ous evidence;

in answer to which it was ingeniously suggested a t the Bar, that, it cannot be

supposed that the witness was suborned, for that if he was possessed of c o i ~ ~ ~ o n

shrewdness he would not have overdone the [I271 thing, and thus have given rise to

such an objection. This is a very tender argument before a Court, and too doubt-

ful to justify this Court in placing any c o ~ ~ s i d e ~ a b ~ ~ reliance upon i t ; for we do

find, happily for the ends of justice, that men fall into these inconsistencies, and by

means thereof the fraudu~ent character of the evidence beconies apparent.

On the other point, viz., the title of Srinavasa Row as the unseparated Father of

Rajah Cotaghery Niladry Row, it is necessary to say only one word. The property

in question was treated as separate property by the very act on the part of the Ap-

pellant, on which he most relies, the original sale to Gotaghery. Upon the wliole of

this case, therefo~e, we are of o p ~ n ~ o n , that there is no ground to alter the decree

appealed from. With respect to the damages, the Court has given the amount laid

in the original plaint, but it appears that adding the interest a greater anioun~ was

proved, and the Court was r e s t ~ a ~ n e ~ from giving that greater amount, only because

they could not give more thaa the amount claimed. Considering the circumstances

of this case, we cannot avoid giving the ~ e ~ p ~ n d e n t cosh.

El281 SREE ~ ~ ~ T T ~ ~ I ~ S N O S O ~ ~ ~ E ~ ~ DABEE, and Anather,-~il;pell~~,L~s ;

SIAJAI-I RURRODBCA411NT ROY,-Resporzderzt * [Feb. 19, 18395.

0% ~~~~~~ from the ~ ~ ~ ~ ~ r n , ~ Coairt of ~ ~ ~ c ~ ~ ~ ~ ~ .

Leave iiveit to restore an appeal ~ i s i ~ ~ ~ 8 s e d for want of pros~~Lition, the Bp-

pellantu' Agent, though instructed to prevent the dismissal of the appeal,

not having received the transcript until aftcr the expiration of a year and a

day from the time of the allowance of the appeal, and the ~ e s ~ o n d e i ~ t having

in consequence thereof obtained an Order of dismissal.

This was a motion for leave to restore an appeal which had been dismissed for

xan t of prosecution-

The o r ~ g i ~ a l suit was inst~tuted by the I ~ e s ~ o ~ ~ d e r i t against the Xortgagees of

certain Pergunnahs for redemption of the mortgage, nad to set aside the sale of one,

made in p~~rsuance of the powers contained in the mortgage deed, a8 f r a ~ i d ~ i l ~ i ~ t arid

ooid : and for the usual accounts.

After various preliminary proceedings, and the filing of a supplemelit it1 and

cross Bill, the cause came on for hearing, before Sir John Peter Grant, one of the

puisne Judges of the Suprenie Court, who on the 3 l ih of April, 1835, niade a decree,

by which the sale in question was declared null and void ; and a reference directed

* Present : ---Members of the J ~ ~ d ~ c ~ a I C n i ~ ~ l ~ t t e e , ~ ~ ~ o ~ d B r o ~ i ~ ~ i a ~ i . Hr. Baron

Parke, Mr. Justice Bosanquet, Mr. Justice Erskine, and Dr. Lushinqton.

Privy Councillor,-~~ssessor, Sir Edward Eyde East.

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249