Pontifex, J.:— On the 28th Aghran 1268 (12th December 1861), Mirza Mahomed Ali Beg borrowed Rs. 8,000 from the Mohnnt Ramdasjee; and secured the same by a registered bona of that date, under which 154 annas share of Fergunna Pultapore in the Collectorate of Maldah was hypothecated. On the 2nd of March 1864, the Mohunt filed a plaint against Mirza Mahomed in the Court of the Prinoipal Sadder Ameen of Moorshedabad, and therein stated that he instituted the suit for the recovery of Rs. 11,650-14 from the mortgaged property and from other moveable and immoveable properties, as well as from the defendant. Mirza Mahomed, by his answer filed the 6th of April 1864, admitted the amount of the claim, but begged for time. This was refused by the Principal Sadder Ameen of Moorshedabad, who, by his decree dated the 14th of April 1864, ordered “that the suit be decreed, and that the plaintiff recover from the defendant the amount of the claim with interest.”
It has been contended that this decree was a mere money-decree to which the mortgage lien did not and could not attach, inasmuch as the Moorshedabad Court had no jurisdiction to affect land situate in the Collectorate of Maldah.
On the 4th of May 1864, the Mohunt applied under s. 285 of Act VIII of 1859 for a certificate for executing the decree in the Civil Court of Zilla Dinagepore within the jurisdiction of which Maldah was situate. On the 20th of May 1864, a oertionate was ordered to be forwarded to the Judge of that zilla, and on the 10th of June 1864, the Mohunt petitioned the Principal Sudder Ameen of Dinagepore, stating that ho bad executed the decree, and praying that tbe amount decreed with costs and interest might be ordered to be realized by sale at auction of the right and interest of the judgment-debtor in the zemindari. Under the proceedings in execution, not only the 15½ annas share of Pergunna Pultapore, but also another property called Pergunna Bansdaub, had been attached and directed to be sold. Mirza Mahomed, on the 9th of September 1864, petitioned that Pergunna Bansdanb should be released from attachment and sale on the ground that he held it as trustee under a wasiatnama dated the 1st Baisakh 1266 (13th April 1859). This wasiatnama it will be necessary to direct our attention to presently; but in passing, it may be well to notice that it was produced and reliednpon as early as the 9th September 1864 as a subsisting instrument of trust under which the judgraent-debtor was trustee. On the 13th of September 1864, an order was made on Mirza Mahomed's petition stopping the auction-sale; but on the 13th of December 1864, the Mohunt preferred a petition suggesting that the sale of Bansdaub might stand over, but praying that the sale of the 15⅓ annas share of Pultapore might be proceeded with; and by an order of the same date, the auction-sale of Pultapore was directed to take place. In this order it is stated that the whole 15½ annas of Pultapore had been attached, and that it was unnecessary to attach it again. The date fixed for sale was the 4th of May 1865. Subsequently to such attachment, the property was attached by Poran Bibee, a judgment-creditor of Mirza Mahomed, under a decree of 1865.
In Falgun 1271 (Fobruary, March 1865), the Mohunt had entered into a contract for the sale of the decree of the 14th of April 1864 to Meer Hossein, bnt the Mohunt refusing to complete, Meer Hossein instituted a suit for specified performance in the Court of the Principal Sudder Ameen of Moorshedabad, who, on the 23rd of December 1865, confirmed the purchase by Meer Hossein. In the meantime and before such contract had been completed, and during the pendency of the suit for specific performance, the 15½ annas of Pultapore, had been sold on the 29th April 1865 in execution of Eoran Bibee's decree, and had been purchased in the name of Korshed Begum, a near relative of Mirza Mahomed, and according to the appellant with the trust funds held udder the wasiatnama; but according to the respondent with the money of Mirza Mahomed himself.
It would seem that, on the application of the Mohunt or Meer Hossein, it was at first ordered that the sale-moneys should remain under attachment on the ground that the property had been first attached by the Mohunt; but upon application by Poran Bibee to release such attachment on the allegation that the execution case of the Mohunt had been struck off, the sale-moneys were released from attachment. The execution case of the Mohunt had in fact been struck off after the sale under Poran's execution, on the 4th of May 1865, by order of the Principal 6udder Ameen of Dinagepore, because the fees of the peon for promulgation of auction-sale had not been paid. But such striking off would only affect the files of the Court and the application for sale, and would not interfere with the continuance of the attachment.
On the 12th June 1865, Meer Hossein applied by petition to the Principal Sudder Ameen of Moorshedabad, stating that the execution case of the Mohunt had been struck off, because during the pendency of the specific performance suit, the Mohunt had been enjoined from carrying it into effect, and asking that the sale-money might be retained until the specific performance suit was disposed of, insisting that the first attachment being under the Mohunt's decree, that decree must have priority and be satisfied out of the sale-money. The Principal Sudder Ameen of Moorshedabad on the same day, after stating that the objection could not be made in that Court, but must be preferred in the Court which nude the sale, ordered that the petition should be rejected.
The decree of Poran Bibee had originally been passed in the Moorshedabad Court, which also had passed the decree of the Mohunt The former decree had been sent for execution to the Sudder Ameen of Maldah and the latter to the Principal Sudder Ameen of Dinagepore. The sale under Poran's decree had been executed by the Court at Maldah.
On the 30th of June 1865, Meer Hossein presented a petition to the Sudder Ameen ef Maldah, stating the result of his petition to the Moorshedabad Court, and asking that the sale moneys which were then in the Maldah Collectorate might be retained, notwithstanding that a cheque for the same had been given to Bibee Poran. The Sadder Ameen of Maldah, on the 1st of July 1865, held that, is consequence of the execution case baring been struck off, the attachment by the Mohunt was annulled, and therefore rejected the petition. Against each rejection Meer Hossein appealed to the Judge of Dinagepore, who, on the 9th of December 1866, dismissed the appeal on the ground that he had no jurisdiction, as no appeal could lie. The result was that the sale-moneys were paid out to Poran Bibee. During these proceedings the specific performance suit between Meer Hossein and the Mehunt remained undecided, and it is one of the points to be determined in this appeal, whether these proceedings by Meer Hossein, while only entitled by contract to the decree of the 14th April 1864, were sufficient to keep such decree alive under s. 20, Act XIV of 1859.
The respondents having obtained a decree against Meer Hossein, on the 29th of June 1867, applied for the auction-sale of Meer Hossein's right and interest in the decree obtained by the Mohunt, dated the 14th of April 1864, against Mirza Mahomed. By a sale certificate dated the 1st of February 1869, which recites that the decree of the 14th of April 1864 had been executed by one Bibee Moneerun in Zilla Maldah in No. 172 of 1868 and further recites that the auction applied for by the respondent took place on the 29th of January 1869, it was certified that the respondent herself bad become the purchase, of the said decree, and that all Meer Hossein's right and interest therein had passed to her.
It would appear from a petition of the appellant, dated the 21st of July 1868, to the Court at Moorshedabad and from the 5th paragraph of his written statement, that prior to the 2nd of April 1868, Meer Hossein had transferred the decree of the 14th of April 1864 to his mistress, the said Bibee Moneerun, benami with the object of preserving it from decree-holders against himself, and that Bibee Moneerun, with a view to realize the amount due under the transferred decree, had, on the 2nd April 1868, applied to the Court of Moorshedabad for notices to be issued under s. 216 of Act VIII of 1859, and notices having been accordingly issued that the appellant filed his petition of objection thereto.
The appellant in his written statement alleges that Moneerun's application for execution was refused on the 4th of May 1868, but that date is inconsistent with his own petition of objection presented on the 21st July 1868, and also with the petition of Meer Hossein, dated the 3rd of November 1868, to the same Court, in which Meer Hossein stated a sale by deed by him to Bibee Moneernn and that she had executed the decree, and asked that her name might be substituted for his in the execution case.
The final order on this petition does Hot appear in the printed record; but we have been informed that it was made after the sale certificate to the respondent, viz., on the 3rd of February 1869, and that the application by Meer Hossein was refused on the ground that the transfer to Moneernn was simply benami. Another question to be determined in this appeal is, whether the proceedings by Moneerun kept the decree of the 14th of April 1864 alive? During the interval Mirza Mahomed appears to hare died. As before mentioned he had been a trustee under the will or wasiatnama of 1st Baisakh 1266 (13th April 1859) executed by Kharoonnissa, by which Pergunna Bansdaub and other properties, moveable and immoveable, were so far as the same were made subject thereto, devoted to certain trusts which, if not precisely ???, were of that nature, and which will was acted upon as valid long before the decree against Mirza Mahomed of the 14th April 1864. It appears that by another wasiatnama, dated the 8th Bhadro 1271 (23rd August 1864) Mirza Mahomed, being about to proceed on a pilgrimage for three years, appointed the appellant Nadir Hossein, his sister's son, trustee for three years of Kharoonnissa's will. A recital appears in this document, which has been relied upon, to the effect that the trust income was insufficient to meet the expenses of the trust, and the income is stated as Rs. 3.296
By his will, dated the 20th May 1868, Mirza Mahomed appointed Nadir Hossein trustee in his place of Kharoonnissa's will Mirza Mahomed's will recites that 15½ annas share of Pergunna Pultapore had then recently been purchased and formed part of the trust property. Immediately after her purchase of the decree. viz., on the 4th of February 1869, the respondent applied for execution to the Principal Sudder Ameen of Moorshedabad against property in that district and objections to such execution were made separately by Nadir Hossein the trustee, and by the heirs of Mirza Mahomed. The objection of the appellant Nadir Hossein was numbered 43 of 1859, and alleged that he was not the heir of Mirza Mahomed, and that he was not in possession of any property left by Mirza Mahomed, but that he was in possession of trust property under Kharoonnissa's will as trustee in succession to Mirza Mahomed. The order upon this objection, dated, 29th May 1869, was that Nadir Hossein should be released from liability under the decree. Such order could only apply to or affect property in the district of Moorshedabad. The objection of Mirza Mahomed's heirs (among whom Nadir Hossein was apparently not included) was numbered No. 23 of 1869, and among other grounds raised the question that execution was barred by limitation. This objection was rejected by the Principal Sadder Ameen of Moorshedabad on the 29th of May 1869, on the ground that the Mohunt's execution case having been struck off on the 4th of May 1865, and Bibee Moneerun haying applied for execution on the 2nd of April 1868, she being in fact the nominee of Meer Hossein, Such application by her must be considered as sufficient to keep the decree in force.
The respondent subsequently appears to have obtained an attachment of Pergunna Pultapore in the Zilla Court of Dinagepore, whereupon Nadir Hossein again under 8. 246 made his objection that the property was trust property, and on the 7th of June 1870, the Judge of Dinagepore allowed the objection and released Pergunna Pultapore from attachment. In consequence of such release, the respondent instituted the suit in which this appeal arises in the Court of the Sobordinate Judge of Dinagepora on the 6th of December 1870, insisting that the original mortgage lien on Pultapore under the bond of the 28th Aghran 1268 (12th December 1681), was still subsisting, and was incident to the decree of the 14th of April 1864, and must override all alienations by Mirza Mahomed, or persons claiming through him, and praying for a sale of the mortgaged premises in execution of the decree of the 14th of April 1864. As Nadir Hossein in his objection in the Moorshedabad and Dinagepore Courts had not raised the question that 15½ annas share of Pultapore had been purchased under Poran's sale in execution out of the profits of the trust property, but had only alleged that such share was trust property, and that he had succeeded to it as trustee under Kharoonnissa's will, the respondent in the plaint could net raise the question of the validity of the purchase under (Poran's execution. And as in her plaint the respondent makes no mention of the proceedings in execution by Meer Hossein in 1865, and by Moneerun in 1868, and does not attempt to show that any proceedings in execution had been take a to keep the decree of the 14th of April 1864 alive, between the date thereof and her own purchase of it, she must have asumed that; if she was entitled to the mortgage lien, her right to sue in respect of the mortgaged property would not be barred for twelve years, notwithstanding that the mortgage-debt had been changed into a judgment-debt by the decree of the 14th of April 1864: and this assumption would loom to be correct and is in accordance with the judgments of Macpherson, J., in the cases of Surwan Hossein v. Shahazadah Gotam Mahomed(a) and Biswanath Mukhopadhya v. Gosaindas Bara Madak(b).
The appellant by his written statement in this suit for the first time set up the case that the property had been purchased under Poran's execution out of the profits of Kharoonnissa's trust property. He further insisted that the decree of the 14th of April 1864 was a mere money-decree, which did not carry with it the mortgage lien, and that proceedings in execution under such decree were barred by limitation, inasmuch as Moneerun's application for execution on the 2nd of April 1868 must be treated as fraudulent and inoperative. He also insisted that, as Meer Hossein failed to establish by suit his right to the purchase-money, when the property was sold in 1865 under Poran's execution, and allowed her to obtain such money by submitting to the rejection of his claim under s. 270, his mortgage rights (if any) over the property thereupon ceased.
The Subordinate Judge settled five issues in the suit, which are in effect as follows:—
1. Whether the decree sued upon was barred by limitation?
2. Whether the respondent] had a mortgage lien upon the property?
3. Did the property belong to Mahomed Mirza?
4. Whether the respondent was bound by the act (default) of Meer Hossein?
5. Whether the respondent was entitled to set aside the alleged trust under which the appellant claimed to hold the property?
On the fifth issue, which in a particular view of the case is a material issue, evidence appears to have been taken, but the Subordinate Judge having decided the case on other grounds did not give any judgment on such issue, though he incidentally expressed an opinion upon it.
The subordinate Judge found on the first issue that the decree was not barred by limitation inasmuch as the proceedings' by Meer Hossein in 1865 and by Moneerun 1868 were sufficient to keep it alive. But he seems to have partly founded his decision with respect to Moneerun's proceedings on a decision of the 9th of January 1869 to which he says Nadir Hossein was a party, but which does not appear in the record.
On the second issue, he found that the mortgage lien still subsisted, and had passed to the respondent, and must override any sale under Poran's decree; at the same time incidentally expressing his opinion that the alleged purchase with trust-money was so palpably suspicious that proof of it bona fides must be adduced before its could be allowed to stand against Mirza Mahomed's judgment-creditors. One ground for such suspicion being the fact that it was purchased in the name of Korshed Begum, a relation of Mirza Mahomed, instead of in the name of Nadir Hossein, who was then acting as trustee under his temporary appointment by the deed of the 23rd of August 1864.
On the third issue the Judge found, what is not denied, that the property at the date of the mortgage belonged to Mirza Mahomed. And on the fourth issue he held that Meer Hossein's default in letting Poran got the purchase-money in 1865 did not discharge the mortgage lien.
Against this decision the defendant has appeared, insisting on the same objections substantially as those taken in his written statement.
The issues settled in the Court below are sufficient for the determination of this case.
Taking the second and fourth issues together, I am of opinion that, as the form of mortgage or charge created by the bond of 28th Aghran 1268 (12th December 1861) did not vest any estate in the Mohunt, but only established a lien as incident to the money-debt, such lien continued an incident of the debt when it passed from a contract-debt into a judgment-debt, and so continued when such judgment-debt was subsequently assigned to Meer Hossein. Otherwise the right to the lien must have remained in the Mohunt. But as his judgment-debt represented the full amount for which Mirza Mahomed and the land were liable to him, and as he had transferred such judgment-debt to Meer Hossein for what must be taken to have been its full value, he could not retain the lien either against Mirza Mahomed or Meer Hossein. He could not retain it against Mirza Mahomed, for he had no longer any debt of demand Against him or the lands; and as Mirza Mahomed had neither done nor paid any thing to discharge the lien, it must still have continued to exist. But the only possible existence it could have) would be as incidental to the judgment-debt; and therefore I am of opinion that the sale of the money-decree of the 14th of April 1864 passed with it the lien under the bond of the 28th Aghran 1268 (12th December 1861). The cases of Sarwan Hossein v. Shahazadah Golam Mahomed and Biswansth Mukhopadhya v. Gosoindas Madak Bara are in fact authorities for this position. Such lien could only be enforced against the property subject thereto, so long as it remained the property of Mirza Mahomed, and so long as the decree remained in force by attachment under that decree, though, according to the decisions, — and it would seem as a necessary consequence of s. 246, Act VIII of 1859, — if the property before attachment had passed into the hands of third persons, a separate suit would have been requisite to enforce the lien against the land in the hands of such third persons It has been urged that, because the property was situate in the district of Maldah, the Mooshedabad Court could have no power to affect it by its decree; but the effect of the decree in the Moorshedabad Court was not to create any right against the land, but to turn a contract-debt to which a lien was incident into a judgment-debt to which without any operation of the Moorshedabad Court, any already existing lien would attach by reason of it representing the original contracts debt.
Moreover is the case before us at the date of the sale to Meer Hossein, the property over which the lien extended had already in fact been attached by the Mohunt tinder the decree of the 14th April 1864. It seems to me clear that an attachment under a money-decree on a mortgage-bond and the mortgage Ken cannot co-exist separately in the property hypothecated; and that such an Attachment must be treated when existing as an attachment enforcing the lien. This attachment existing at the date of If Meer Hossein's purchase passed as an inoident of the decree purchased by him; and as the property was sold on the 29th April 1865 pending such attachment, the lien was transferred from the property to the purchase moneys; and thereupon the property became thenceforth discharged from the lien, Meer Hossein might, after the rejection by the Sadder Ameen of his application, with respect to these purchase-moneys; have instituted a regular suit to establish his title to them under s. 270; but failing to do so, he forfeit-ed his lien both on the land and the purchase-moneys.
But having forfeited such lien, it does not follow that he forfeited the right to execute otherwise the decree of the 14th of April 1864. The only result was that such decree became thenceforth a mere money-decree discharged from any incidental lien.
It becomes necessary therefore to decide the first issue tried by the Subordinate Judge, viz., Is execution of that decree barred under s. 20 of Act XIV of 1859?
That section enacts that process of execution shall not issue, unless some proceedings shall have been taken to] enforce or keep in force a decree within three years next preceding the application for execution.
It has been strenuously argued before us that the proceeding intended by that section must be a proceeding by some person legally and rightfully entitled to the decree; and consequently that neither the attempts by Meer Hossein in 1865, to obtain the sale-moneys (the decree at that time not having been legally transferred to him), nor the attempt by Moneerun in 1868 to execute the decree (she being a nominee of Meer Hossein for the purpose of defrauding his creditors and her name not having been substituted for that of Meer Hossein as decree-holder), could operate to keep the decree alive. I cannot find any warrant in s. 20 for such argument. That section appears to me not to require more than that some actual proceeding should be taken which, if succesful, would result in the discharge or partial discharge of the judgment-debt. With respect to the proceeding of 1865 by Meer Hossein, if he had succeeded in retaining under attachment, as he was bona fide attempting to do, the purchase moneys arising under Poran's execution, the decree, which he had then contracted to purchase and the transfer of which he was then enforcing by suit in which ho afterwards succeeded, might have been satisfied therewith. I see no ground whatever for holding that the applications made by Meer Hossein in 1865 were not proceedings to enforce the decree. And with respect to Moneerun's proceedings in 1868, the appellant admits in his written statement that, on the 2nd of April 1868, she applied for execution, and that notices were issued under s. 216. Had such proceeding resulted in a realization of money, it cannot be said as between the judgment-debtor and Meer Hossein, or those claiming under Meer Hossein, that the receipt by Moneerun of such money would not have gone in discharge of the decree. Moneerun might only have been entitled to hold the money in trust for Meer Hossein, or for his creditor; but that circumstance would not have affected the discharge of the decree in execution of which such moneys were realized. The fraud of Meer Hossein, in attempting to withdraw the decree from the claims of his creditors, did not concern the judgment-debtor. As against him the execution proceedings were very real proceedings, to realize the judgment-debt, and of which, had they been successful, the creditors of Meer Hossein might have availed themselves; and such proceedings were not set aside until after the purchase by the respondent, and only as fraudulent against her. With respect to Moneerun's name not having been substituted for that of Meer Hossein as decree-bolder, it does not appear that the assignee need do more than apply for execution under s. 208, Act VIII of 1859, and it does appear from the appellant's written statement, and from his petition dated the 21st July 1868, that in fact Bibee Moneerun had executed the decree, from which execution the appellant by his petition prayed to be released.
I am, therefore, of opinion that the Subordinate Judge was right in holding that execution under the decree of the 14th of April 1864 was not barred. And as a matter of fact that decree has been executed by the respondent in the Moonhedabad Court against the heirs of Miraa Mahomed as an existing decree. But inasmuch as I dissent from the conclusion of the Subordinate Judge, with respect to the continuing existence of the mortgage lien, being of opinion that such lien was upon the sale in execution under Poran's deoree transferred from the land to the purchase-moneys, it becomes necessary to enquire whether the property, which the respondent now seeks to sell, is trust property; or whether the purchase in the name of Korshed Begum, under Poran's execution, was in fact a purchase with the money of Mirsa Mahomed, and the property purchased consequently liable for Mirza Mahomed's debts.
Having regard to the appellant's defence set up in the second and tenth paragraphs of his written statement. I think that the fifth of the issues settled by the Subordinate Judge was sufficient to raise the question as to whether or not the property was trust property.
This question the Subordinate Judge has only incidentally treated in his judgment, as it was not necessary for him to decide It, if, as he held the mortgage lien still existed. Some evidence on the issue was adduced by the appellant and appears in the record; and the Judge has clearly shown the inclination of his opinion that the purchase was fictitious, adducing as a reason for such opinion the fact that the property had been purchased in the name of a near relation of Mirza Mahomed, and not in the name of Nadir Hossein, the then acting trustee.
In addition to this reason, counsel for the respondent has relied on three circumstances to invalidate the purchase: first, because the trusts of the deed of the 1st of Baisakh 1266 (13th April 1869) are not wuqf, and therefore that the deed is invalid as against the heirs of Kharoonnissa; secondly, that the allegation that the property was purchased out of the profits of Kharoonnissa's trust (property is obviously untrue, because in the deed of the 23rd of August 1864, under which Mirza Mahomed appointed the appellant as a trustee for three years, it is recited that the profits were inadequate to defray the expenses, and the schedule to such deed shows that the income of Rs. 3,296 was fully absorbed in payment of the claims and expenses specified in such schedule and thirdly, because the property continued after the sale under Poran's decree to be registered in the name of Mirza Mahomed. I think the first of the above grounds untenable, because whether the trusts were or were not strictly wuqf, they were trusts that had been established, acted upon, and acquiesced in, for some years anterior to the decree of the 14th of April 1864, at which date all heritable rights (if any) of Mirza Mahomed in the property subject to the deed antagonistic to the trusts thereof, so far as such trusts affected the property, must be considered to have ceased.
With regard to the third objection, there is nothing in the record to show that, after the sale under Poran's execution, the property continued to be registered in the name of Mirza Mahomed, but even: if the allegation were correct, it would not under any circumstances be conclusive; and in this particular case, if the property was bought with funds of which Mirza Mahomed was trustee, the fact that the property continued registered in his name would be immaterial.
With respect to the second objection, it is no doubt very suspicious that the property was purchased under Poran's execution for Rs. 14,000 on the 29th of April 1866, within less than a year after the recital stating that the trust income was insufficient to defray current expenses; on the ether hand, it should be noticed that in Kharoonnissa's will, the profits had been estimated at Rs. 3,636, and that by the death of Mirza Enayet Ali Beg, one of the objects of the trust, Rs. 1,200 per annum, a personal allowance to him, had been set free; and three witnesses were examined on behalf of the appellant, one of whom deposed that Mirza Mahomed purchased the 15½ annas share of Pultapore in the name of Korahed Begum from the funds of Kharoonnissa, but stated that his knowledge was founded only on communication by Mirza Mahomed himself, and another witness stated that the purchase was made by means partly of the trust finds, and partly of a subscription made for the purpose of the purchase. Counsel for the appellant has urged that the respondent has not adduced a scintilla of evidence to show that the purchase-money moved from Mirza Mahomed himself; and he very strongly pressed upon our attention the case of Sreemanchunder Dey v. Gopaulchunder Chuckerbutty. That case it no doubt in many respects a stronger case than the present, and it is there broadly laid down that in cases of this nature, although there may be circumstances of very strong suspicion, though the person insisting on the validity of the purchase may even have given a false account of the sources from which the purchase-moneys were derived, still the affirmation lies upon the party impeaching the sale, and the Court must not act upon suspicion, but must require actual proof that the purchase-moneys are the moneys of the judgment-debtor. Of course, we must follow the rulings in that case, unless the circumstances of the present case materially differ therefrom.
There were two circumstances in that case which were relied on by the Privy Council (p. 48) as very material, which do not exist in the present case. This suit is not “the fruit of angry feeling,” and although the plaintiff in this as in that case is only a transferee of the judgment-debt, yet in the present case the property was attempted to be attached by the plaintiff's predecessor, through Moneerun, prior to the transfer to the plaintiff. Under these circumstances, it seems to me very material in the present case to consider what explanation the respondent gives of the manner in which the purchase-moneys were supplied on the purchase in 1865, under Poran's execution, and such explanation deliberately made and supported by evidence, must, I think, be taken as an admission binding upon him. His statement is that the property was purchased in 1865 out of the surplus profits of Kharoonnissa's trust settlement, and he seems to have assumed that the conclusion of law most be that the property so purchased is trust property. This assumption more-over altogether ignores the fact that the property affected by Kharoonnissa's will was thereby dedicated to trust purposes only so far as the trusts thereby declared might require; and that under such will Mirza Mahomed would, at the date of the purchase, have been entitled to retain for his own benefit all surplus profits not required for the execution of the trusts, inasmuch as, subject to such execution, he was expressly made by that will irresponsible and unaccountable. If then this property was purchased out of surplus income not required for the purposes of the trust, it was purchased with funds which, at the time, Mirza Mahomed might have applied to this own purposes without being liable to account for the same to any one, so that such purchase would in mot have enured for his own benefit; for if the purchase was made out of profits, it follows that before the purchase the trust property was already more than sufficient for the purposes of the trust. No evidence, beyond a mere recital in Mirsa Mahomed's will, has been adduced to show that during Mirza Mahomed's lifetime, the property purchased in the name of Korshed Begum by funds applicable to his own purposes was dedicated by him to trust purposes, which would prevent a judgment creditor executing his decree against the property so purchased. In the absence of such evidence, and on the admissisn of the appellant that the property was purchased out of surplus profits not applicable to trust purposes, and as the execution of the respondent's decree is not barred by limitation, I think that the respondent is entitled to execute her decree against the 15½ annas share of Pergunna Pultapore, and I am therefore of opinion that this appeal should be dismissed with costs.