moiety of the Mazagon docks and premises. He was in possession as a bona fide purchaser for a valuable consideration, under the conveyance executed, in 1845, by Aga Mahomed Rahim Sherazee. The seizure, therefore, by the Sheriff of this property under writs of sequestration against the property of Aga Mahomed Rahim Sherazee, was irregularly executed as against this moiety. The Court below viewed the case as a colourable sale without any consideration money having been paid by the Appellant to the vendor. The evidence, however, disproves such a conclusion. It was proved that he had ample means to effect the purchase by paying the balance, after deducting the debt due to him at that time by Aga Mahomed Rahim Sherazee, and that after the agreement for the purchase had been made, he paid over the balance. It may be true, that, at the time when he purchased the moiety, he was aware of the existence of the suit by the residuary legatees of Mahomed Ally Khan against Aga Mahomed Shoostry, his executor, for an administration of his estate, yet, as he was ignorant of the state of the proceedings therein, whether [41] or not any sum was found due by him to the estate of the testator, it could not affect his title as a bona fide purchaser. Even if he had notice that the Master had found that he was indebted to the estate, we submit that that circumstance would in no respect have affected his right as a purchaser for a bona fide consideration. A sale of property for a good consideration is not, either at common law, or under the Statute, 13 Eliz., c. 5 (made perpetual by 29 Eliz., c. 5), fraudulent and void, merely because it is made with the intention to defeat the expected execution of a judgment creditor. Wood v. Dixie (7 Q.B. Rep. 892), Twyne's case (3 Coke, 80, b. 81 a; and see note, 1 Smith's L. Cases, p. 10, where all the authorities on this question are collected), Cadogan v. Kennett (2 Cowp. 432, 434), Riches v. Evans (9 Car. and Pay. 640). The learned Judge says, in his judgment, "that directly he heard the speech of the counsel for the Plaintiff, and ascertained that a case, in itself suspicious, was accompanied with most improbable details, and that these details had absolutely no witnesses at all to prove them, I felt no doubt whatever that the Defendant was entitled to a verdict, and that the conveyance was altogether simulated and fraudulent.” Now it is clear, from these expressions, that the Appellant had to contend with unusual disadvantages in establishing his title to the property in question. The mind of the Judge was unfavourably disposed towards the case anterior to the Appellant's proofs and evidence being adduced. The adverse presumption of fraud which the Appellant had to combat from the beginning, was derived, not from the case of the Appellant himself, but from facts which it [42] is said had been established or were apparent in a suit, to which he was no party, and to the issues involved in which he was an entire stranger, and which he never had an opportunity of contesting. The whole proceedings are irregular. The Court ought to have directed an action of ejectment to try the validity of the conveyance.

Second. The order cannot stand, for if the Court below entertained so much doubt upon the evidence as to decline giving effect to the deed of purchase, yet the property ought, at all events, to have been treated as a security for the debt due to the Appellant, with interest. Assuming, therefore, that in a proceeding as the present it was competent to the Court, and proper, to set aside the deed for fraud, still, as the conveyance was rescinded, the ordinary rule of a Court of Equity ought to have been applied, and it ought to have directed that the Appellant should be paid the amount really due to him, and also the whole of his expenditure made by him in substantial improvements. Hamblyn v. Ley (3 Swans. 301, n.).

The Solicitor-General (Sir R. Bethell), and Mr. Ayrton, for the Respondents.-It is evident that the conveyance under which the Appellant claimed, was executed collusively, with the intention to delay, or defraud, the Respondent from enforcing any decree that might be pronounced against Aga Mahomed Rahim Sherazee, in the suit then pending against him by the Respondents. Such conveyance was, therefore, fraudulent and void. The deed was not proved to be a bona fide conveyance for a valuable consideration, so as to be valid in equity against [43] the writs of sequestration under which the property was sequestered. Coulston v. Gardiner (3 Swans. n. 279), Mushedy Kazim's claim (" Oriental Cases," by Perry, p. 35). The objection now urged by the Appellant, that the order cannot stand, is founded on the sole ground, that the Court below improperly discredited the testimony of witnesses Such objection is untenable, as this Court, upon a mere question of evidence, will not

reverse a decision upon that ground alone. Santacana v. Ardevol (1 Knapp's P.C. Cases, 269). The Appellant was under the obligation of satisfactorily proving that his purchase of the property was bona fide, but this obligation was not discharged by the evidence he adduced. Lastly, there was no irregularity in the proceedings; if a sequestrator obtains possession of property, as belonging to the party against whom the process issued, and such property is claimed by a third person, the mode of trying the right is in the discretion of the Court. Empringham v. Short (3 Hare, 461).

The Right Hon. T. Pemberton Leigh (Feb. 15, 1854). In this case, on the 2nd of February, 1847, a writ of sequestration was issued by the Supreme Court of Judicature at Bombay, on the Equity side of that Court, in a cause in which one Meerza Ally Mahomed Shoostry and Bebee Mariam Begum were Plaintiffs, and Aga Mahomed Rahim Sherazee and others, Defendants, for the payment of Rs. 100,000. On the 4th of March following, a second writ of sequestration also issued for the non-payment of a like sum of Rs. 100,000; and on the 27th of March, the Sheriff, to whom these writs were addressed, made his return [44] to the Court, by which he certified, that on the 18th of March instant he had seized and sequestered the Mazagon docks, under and by virtue of those two writs of sequestration. Now the terms of the writ of sequestration, addressed to the Sheriff, were these: he was commanded" to enter upon, take, and sequester all the houses, lands, and tenements, and the rents, issues, and profits thereof, and also all the personal estate, debts, and effects of the said Aga Mahomed Rahim Sherazee, in your bailiwick, and to hold the same in your possession until the said Aga Mahomed Rahim Sherazee shall pay the said sum of Rs. 100,000." Now, under the terms of this writ, what the Sheriff had to do was to receive the rents, issues, and profits of this property, which was at that time in the possession of the Peninsular and Oriental Steam Navigation Company, as tenants, and to pay the amount of these rents into Court; so that any disposition of such rents, when paid in, would be the subject of a further application to the Court. All that the writ commanded, was a direction to the Sheriff to retain the property of Aga Mahomed Rahim Sherazee in his possession until the further order of the Court.

In this state of circumstances, it appears to us that, according to the rules of a Court of Equity, no proceedings could be taken against the sequestrator except by leave of the Court. If a person has a legal title to property seized by an ordinary trespasser, he can bring his action of ejectment to recover possession of such property; but where the property is in the custody of the Court, as when in the possession of a Receiver, the course pursued in our Courts, if it appears there is a legal title, has been to permit an [45] action of ejectment to be brought, to put the matter in the most convenient course of determination. That course was adopted by Lord Eldon, in the case of Angel v. Smith (9 Ves. 335), where, after much discussion, he permitted an action of ejectment to be brought against a Receiver. In Brooks v. Greathed (1 Jac. and Wal. 176), the Master of the Rolls says, "It was settled in Angel v. Smith, when the rule was laid down both with respect to Receivers and Sequestrators, that their possession is not to be disturbed without leave. But when a party is prejudiced by having a Receiver put in his way, the course has either been to give him leave to bring an action of ejectment, or permit him to be examined, pro interesse suo." In this case, the Appellant set up a title to property that had been seized by the Sheriff, or, at least, to one moiety of property so seized, and he presented a petition to the Court, on the 8th of April, 1847, praying that the Sheriff might be ordered to withdraw the writs of sequestration and relinquish one moiety of the property, that is, the dock and premises, to the Appellant; thus, in truth, asking the same relief which he would have obtained if he had brought his action of ejectment, and had succeeded in that action; and he further prayed that, if the Court should think fit, the Respondents (the Complainants in the suit) might be directed to exhibit interrogatories in the office of the Master of the Court, for the examination of the Appellant and for the discovery of his interest in the premises, or that such other order should be made as might be fit. Now, instead of bringing this petition on to a hearing, in which case, inasmuch as his title appeared, on his own showing, to be a mere legal title, he [46] would merely have obtained liberty to

bring an action of ejectment, he took an ex parte order of another sort, on the same day as that on which the petition was presented. The terms of the order were: that the Appellant should come in and be examined, pro interesse suo, in the moiety of the Mazagon docks and premises in the petition mentioned; and that the Respondents should file interrogatories for that purpose in a week, before the Master, and if the Respondents should think fit to reply to the examination of the Appellant, put in by him in answer to such interrogatories, either party should be at liberty to examine witnesses, viva voce, before the Master, touching the Appellant's claim; and that the Master should look into the examination and evidence of such witnesses, if any, and certify to the Court whether the Appellant had made out a title to the moiety of the dock and premises, or any and what part thereof; and the Master was to be at liberty to state any special circumstances, and the parties were to be at liberty to apply to the Court as they might be advised. Under this order the Petitioner went in to be examined. Interrogatories were filed for his examination, and he put in his answers to those interrogatories. From that examination it appeared, that he claimed a right to this property by what seemed to be a good legal title, namely, by purchase for a valuable consideration, paid when the conveyance was executed, and under which he was in possession of the property at the time of the seizure, he having received the rents, and made a considerable expenditure on the premises. On the other hand, it appeared, upon this examination, that the statements of the Petitioner were open to great suspicion. The sale, [47] to the last degree, was improbable, depending upon his own statement; while there were circumstances from which the Court might be led to conclude that the title so set up was only simulated, and that no real interest was vested in him. This being so, the Respondents filed a replication and examination. According to the terms of the order, they might have proceeded to the examination of witnesses before the Master, who would have made his report, and if the Respondents had been dissatisfied with that report, they might have excepted, and the case would have come before the Court on the exceptions, and a trial at law ordered to settle the question of title. In this state of things the parties appear to have come to an arrangement which seems to have been extremely reasonable and proper. If a trial had taken place, that trial would have taken place before the two Judges of the Court sitting on the plea side of the Court as a jury, and, at the same time, as Judges, for the purpose of delivering the verdict in the trial, in the form either of an action of ejectment, or an issue. If they had pursued the order, according to the terms of it, instead of adopting the course they did, they would have gone before the Master, attendant with all the expense and delay of an examination, report, and order, and then the Master would have reported on that examination, and it would, in all probability, have resulted in an order to try at law that question; to avoid which, on the 4th of September, 1848, an order was made, by consent, in these terms: "It is ordered, that so much of the order made in the above matter by this Honourable Court, on the 8th day of April, 1847, as directs, that if the said Meerza Ally Mahomed Shoostry and Bebee Mariam [48] Begum should think fit to reply to the examination of the Petitioner, put in by him in answer to the interrogatories in the order mentioned, then that either party was to be at liberty to examine witnesses, viva voce, before the Master, touching the Petitioner's claim; and that the Master should look into the examination and evidence of such witnesses, if any, and certify to the Court whether the Petitioner had made out a title to the moiety of the ground, buildings, dock, and premises, or any and what part thereof,-be, and it is hereby discharged; and it is further ordered, that the matter of the petition be set down on the board of causes for hearing on the first day of the next ensuing November term, and that the witnesses on both sides be examined viva voce, before the Court at the hearing." Now the question is, whether this is not intended to be substituted for a trial at law, on the plea side of the Court-the trying an action of ejectment, in substance, upon this petition, which prayed precisely the same relief that would have been had in an action of ejectment, and substituting these proceedings for such trial. That it was so, appears to us to be clear. In the first place, when the evidence is taken before the Court at this trial, all the documents that are produced are entered in the plea side of the Court, and signed by the officer, not as Registrar, but as Prothonotary; and, when the Judges are disposing of the case, Chief Justice Perry says, "I felt no

doubt whatever that the Defendant was entitled to a verdict." Well, then, supposing that to be the case, the question was in fact tried in the most convenient form for the purpose of the action, namely to restore to the Petitioner that possession which alone he claimed by this peti-[49]-tion. Upon that petition, witnesses were examined at great length; and the Court came to the conclusion that this transaction of the alleged purchase was a mere simulated and fraudulent transaction; that no money had ever been paid; that no possession had ever been delivered; but that, in truth, the alleged purchase and possession had been simulated for the purpose of defeating the sequestration and the claim of creditors in the suit which was then pending, and in which it was probable, or, rather, in which it was certain, that a very large balance would be found to be due from the estate. Being of that opinion, the Judges necessarily, and naturally, and properly, concluded that the deed, if it were a deed executed under those circumstances, was fraudulent as against creditors; and that the Plaintiff in an action of ejectment (the Petitioner standing in the position of a Plaintiff in an action of ejectment) must fail, and that the petition must be dismissed.

If they were right in law, the question is, whether they were right in fact. And upon that question the course which this Court always takes, in appeals from the inferior Courts of India, where the Judges are so much more familiar with the circumstances of the parties, the nature of the case, and the probabilities or improbabilities attached to certain states of circumstances, and the credibility of the witnesses, is, that although we by no means consider it conclusive, still great weight is to be given to their opinion, and this Court is not in the habit of disturbing a judgment founded upon a decision of those questions, unless their Lordships entertain a clear and strong opinion upon it. But where a judgment has been [50] pronounced, and a verdict found, and that judgment pronounced by the Judges of the Supreme Court, sitting as a Court for the purpose of the trial of an action, their Lordships will give, at least, the same weight to that decision as is given in this country to the verdict of a jury, to which the Judge who tries the cause makes no objection; and, where there are no reasonable grounds to suppose that the jury have come to a wrong conclusion, it is not sufficient to say that the Judge might, probably, if the case was res integra, have come to a different conclusion. We are far from saying here, if the case had been res integra, that we should have come to a different conclusion from that which the Judges of the Court below have come to, and we think their Order was perfectly right.

But then it is said, supposing this transaction to be fraudulent and void against creditors, still the party is entitled to the sums which he had been allowed to lay out upon the repairs of the property. Now, there is a case, Hamblyn v. Ley (3 Swan. 301, note), where a voluntary deed had been executed, under circumstances much resembling the present case, the deed having been executed for the purpose of defeating a sequestration. Lord Hardwicke set aside that deed, and made an allowance to the parties for what had been expended, both in the payment of interest on the mortgage, and for taxes and repairs. But, in the first place, that was a case in which only equitable relief could be administered, because it was a case of an equity of redemption; and in the next place, it was clear that there had been an actual possession, and a receipt of rents and profits. If in this case the [51] parties had prosecuted the matter before the Master, and it had appeared to the Master that this deed was good at law, but void in equity, then probably there might have been an account of the profits and of those sums that had been laid out in improvements. But the course that has been here taken rendered such an account impossible. No such account could have been directed in an action of ejectment brought for the recovery of the possession of the property, and, this being a mere legal title in which the Court was of opinion that there was no estate or interest in the Plaintiff against creditors, upon both grounds, it seems impossible that any such allowance could have been made; no claim for such allowance was made, nor was any demand of the kind brought before the Court below; and, even if it had been, in the view that the Judges took, it would have made no difference, because they considered the whole transaction, from the beginning to the end, as void. They considered that the possession never ought to have been changed. Mr. Justice Yardley, in referring to the grounds upon which he proceeded, says, "To the best of my recollection, aided by the notes I took at the hearing, the petition was dismissed because we thought that the con

veyance of a moiety of the Mazagon dockyard by Aga Mahomed Rahim Sherazee to the Petitioner was merely colourable, and that the accounts, by which it was attempted to show that a large balance was due at the time, or immediately before the execution of the conveyance, from Aga Mahomed Rahim Sherazee to the Petitioner, were fictitious; and that the Petitioner entirely failed to prove to our satisfaction that the payments making [52] up the residue of the alleged purchase-money had been actually made, and that the possession of the dockyard only nominally passed to the Petitioner, Aga Mahomed Rahim Sherazee still continuing to be the real owner of it, and still continuing to exercise exclusive dominion over it, and that this was part of a concerted design by Aga Mahomed Rahim Sherazee and his friends, of whom the Petitioner was one, to make away with all the property and effects of the said Aga Mahomed Rahim Sherazee, in order to deprive Meerza Ally Mahomed Shoostry of the fruits of a decree."

It appears to their Lordships, upon every view of this case, that the Order pronounced by the Court below was perfectly right, and that it is their duty to recommend Her Majesty to affirm such Order, with costs.

[53] GOPEEKRIST GOSAIN,-Appellant; GUNGAPERSAUD GOSAIN,— Respondent [July 17 and 18, 1854].

*

On appeal from the Supreme Court of Calcutta.

The presumption of the Hindoo law, in a joint undivided family, is, that the whole property of the family is joint estate, and the onus lies upon a party claiming any part of such property as his separate estate, to establish that fact.

Where a purchase of real estate is made by a Hindoo in the name of one of his sons, the presumption of the Hindoo law is in favour of its being a benamee purchase, and the burthen of proof lies on the party in whose name it was purchased, to prove that he was solely entitled to the legal and beneficial interest in such purchased estate.

Purchase of a talook in Bengal by a Hindoo in his eldest son's name, the conveyance, though in the English form of lease and release, held to be a benamee purchase, and the son in whose name it was purchased declared to be a trustee for the father, and the talook part of the father's estate.

In reversing the judgment of the Court below, the Judicial Committee remitted the cause with certain directions, leaving the question of the allowance of costs in the discretion of the Court below.

The Appellant and Respondent in this case were brothers, and joint heirs by the Hindoo law of their deceased father, Rogoram Gosain. The question raised by the suit in the Court below and by the present appeal was, whether a talook called Gheritty, situate in the district of Hoogly, in Bengal, which was purchased by Rogoram Gosain many years before his death, and previously to the birth of the Appellant, in the name of the Respondent, did or did not, at the time of his death, form part of the real estate of [54] Rogoram Gosain, so as to pass to the Appellant and Respondent jointly under a general devise to them contained in his Will, or descended to them as joint heirs in case of intestacy. The case of the Appellant was, that the talook formed part of his father's real estate. The Respondent, on the contrary, insisted, that it was his separate property, having been bought by his father in his name, for his separate use and benefit.

The circumstances giving rise to this question were as follows:

Rogoram Gosain, a Hindoo, of considerable property, was, up to the year 1831, jointly possessed with his brother, Ruggubram Gosain, of property derived from their father; of which a partition was in that year effected, and his share of the property ascertained. In the year 1825, Rogoram Gosain purchased, for the sum of

* Present: Members of the Judicial Committee,-The Right Hon. the Lord Justice Knight Bruce, the Right Hon. Sir Edward Ryan, the Right Hon. the Lord Justice Turner, and the Right Hon. Sir John Patteson.