E. Macnaghten v. Bheekaree Singh

Special Appeal from a decree psssed by the first Subordinate Judge of Bhaugulpore, modifying that of the Moonsiff of ???.

This was a suit for arrears of rent based on a kabuliat ??? on the 11th of December 1869, by Pores Nath Nundy and ???, Fitzpatrick, the owners of the Paigamberpur Indigo concern, of which the land formed part. Pores Nath Nundy ??? share of the concern together with the dena-powna to patrick. Afterwards Fitzpatrick mortgaged the whole ??? with power to collect outstanding balances, &c, to ??? and Ogilvy, of Calcutta, who transferred it to the defendant naghten. The mortgage was in the English form, and naghten foreclosed and took possession in the month of 1282F.

The rent due to plaintiff for 1282 became due at the ??? Jeyt, after Macnaghten took possession of the concern; ??? it was proved that Macnaghten sued for and got decrees ??? several of the ryots for the rents of 1282. The Moonsiff ??? judgment said that Macnaghten did not deny his liability ??? presentative of Fitzpatrick for all dena-powna connected ??? factory, while the Subordinate Judge said that Macnaghten not admit he had purchased the concern with outstanding powna. The suit was brought against Macnaghten, ??? heir of Pores Nath Nundy, and in both the lower ??? decree was given against Macnaghten alone, who then ??? appealed to the High Court.

Collie, for Appellant. Mr. Morgan with him.

Baboo Aubinash Chunder Banerjee, for Respondent.

The judgment of the High Court (1) is as follows:

We have no doubt in this case that the judgment of the ??? appellate Court is substantially correct. It appears that ??? result of an assignment by the mortgagor Mr. Fitzpatrick defendant special appellant, has placed himself in the ??? actual ticcadar of the ticca in question, and has been in ??? and occupation of it from the month of Jeyt 1282. ??? found by the Court below that the rents of that year ??? due at the end of Jeyt, that is to say, the month in ??? defendant took possession, and not earlier, so that the defendant and no one else has been in a position to collect the rents. ??? plaintiff, therefore, does not and cannot stand upon the ??? tract between Mr. Macnaghten and the mortgagor, ??? that is not before us, but upon what has taken place in ??? at contract, and on Mr. Macnaghten's own act in taking ??? and collecting rents from the ryots. It is said that there ??? to show that Mr. Macnaghten collected the whole of ???. I do not think the plaintiff was bound to call the whole ??? tenants into the witness-box to show that Mr. Macnaghten ??? from every one of them, but if a considerable number ??? had been called, the Court might fairly infer under the ??? instances that he had collected or might have collected ??? them all. That being so, according to the law of this ???, a liability seems to arise on the part of Mr. Macnaghten, ??? enjoyed the rents and profits, to pay to the superior ???. I think therefore that Mr. Macnaghten was liable for ??? of 1282. The appeal will, therefore, be dismissed with ???.