J. C. 1877 NORENDER NARAIN บ. DWARKA LAL more; it is an ordinary lease, and part of the rent was to be deducted on account of a former zurpeshgi. Again in 1867, after the Rajah's death, his sons obtained decrees against the Dasses, and the right and interest of the Dasses in this estate were notified for sale under those decrees. It appears that just before the days when the sale was to take place the Dasses sold their shares to the Mundurs, who alone appear here as Respondents, obtained a large sum of money from them, and paid over that money in discharge of the judgment debt. Those circumstances are not referred to to shew that the conditional sale did not exist, but they are inconsistent with its existence as a document which was intended to be acted upon. Throughout the above transaction there is no trace that it was referred to, or that any notice was given of it, or that anybody knew anything of it. Again, the Rajah, after the conditional sale, as admitted in the plaint, purchased some of the shares of the Dasses which had been mortgaged. They are sales as if the Dasses had the absolute ownership. The deeds in no way refer to the mortgage, nor was any provision made respecting the mortgage debt. It is not necessary for their Lordships to go further into these transactions. They have adverted to them because they were desirous of expressing the opinion they entertain of the extreme doubt, to say the least, which rests upon the bona fides of the conditional sale. They do not desire to impute fraud to either the Rajah or the Dasses. The Rajah had probably taken this deed from them to act upon it in case he should think it right, but did not think it right to do so; and having kept it for so long a time without acting upon it, there is strong evidence in this and in the other circumstances of the case which have been adverted to, leading to the conclusion that it is not a bonâ fide conveyance as against bonâ fide purchasers, which the Defendants, the Mundurs, are. On the whole case, therefore, their Lordships will humbly advise Her Majesty to affirm the judgment of the Court below, and to dismiss this appeal with costs. Agent for the Appellant: T. L. Wilson. Agents for the Mundur Respondents: Barrow & Barton. Interest on mesne profits may be awarded as of course from date of suit in a decree. Although such interest may be given from a date prior to the suit, their Lordships, under the circumstances of this case, including an unexplained delay in prosecuting the appeal, directed that the interest should run only from date of suit. APPEAL from a decree of the High Court (Aug. 15, 1863), whereby a decree of the Principal Sudder Ameen of the 24 Pergunnahs (Feb. 18, 1861) was modified. The suit was to recover mesne profits of certain land which were claimed as amounting to Rs.207,893. The Principal Sudder Ameen gave judgment for Rs.28,682, but the High Court, in the decree appealed from, refused to allow mesne profits for so long a period as had been allowed by the Court below, and reduced the amount allowed to Rs.21,302. The facts of the case sufficiently appear in the judgment of their Lordships. The main question decided was as to the Plaintiff's right to interest on the mesne profits awarded to him and as to the date from which such interest would run. Doyne, for the Appellant, contended that having regard to Act XXXII. of 1839 the interest sought was payable, and ran from the date of written demand or the date of filing the plaint. [SIR JAMES W. COLVILE:-The Act applies to debts or sums * Present :-SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MONTAGUE E. SMITH, and SIR ROBERT P. COLLIER. J. C. 1878 HURROPER- v. SHAMAPER- certain; that is not your case.] The Defendant has received a liquidated sum which he is decreed to pay over to us. If the Act does not apply, then we are thrown back on the Civil Procedure Code: see Act VIII. of 1859, sect. 193, and XXIII. of 1861, sect. 10. See also Circular Order, March 4, 1836; Carrau's Index to Decisions of Sudder Court, tit. "Interest," No. 53. [SIR JAMES W. COLVILE:-That refers to interest ordered by the Court.] See also Circular Order, April 7, 1837; there is no distinction between wasilat and a debt on a contract in regard to the claim for interest: see Carrau's Reports of Summary Cases in Sudder Court, Oct. 1, 1850, p. 195 [Ed. 1853], Rungmala petitioner. See also Bamun Doss Mookerjee v. Mussumat Tarinee (1), where interest on wasilat was allowed from each year in which it accrued. Both Courts were in error in allowing it only from the date of the Principal Sudder Ameen's decree. It was either payable from the respective dates when each item of mesne profits became payable, or from date of demand in writing, or from the date of filing the plaint. Leith, Q.C. (Souttar with him), for the Respondent, referred to Arman Singh v. Permesuree Suhaee (2); Muneeram Acharjee v. Sreemutty Turrungo (3). Doyne replied. The judgment of their Lordships was delivered by The transaction out of which this suit arose occurred nearly half a century ago, and from it has flowed a continuous stream of litigation, not in all respects creditable to the earlier tribunals of India, down to the present day. A history of that litigation, given shortly and clearly, will be found in a report in the 8th volume of Moore's Indian Appeals, of a judgment of this Committee, which was delivered on the occasion to be hereafter mentioned. Their Lordships deem it enough to refer to that case without recapitu E (1) S. D. A. 30 Sept. 1850, p. 533; (2) 4 Select Rep. 176. (3) 7 Suth. W. R. 173 (20 Feb.) lating the history, inasmuch as the facts necessary to the determination of the points now before them need no very lengthened statement. J. C. 1878 HURROPER CHOWDHRY v. SHAMAPER SAUD ROY CHOWDHRY. Two brothers, Doorgapersaud Chowdhry and Tarapersaud BAUD ROY Chowdhry, of whom Doorga was the elder, entered into an agreement of compromise for the purpose of settling disputes then pending between them on the 4th of April, 1829. That agreement of compromise may be sufficiently described for the present purpose as one whereby in substance the elder brother took ten sixteenths of the ancestral property, and the younger brother six sixteenths. Tara, the younger brother, disputed this compromise upon various grounds; but it was affirmed by the Court, which was then called the Provincial Court, on the 2nd of September, 1829. Tara appealed from that decision to the Court of Sudder Dewanny Adawlut, and the Court of Sudder Dewanny Adawlut affirmed the decision of the Provincial Court and directed possession to be given to Tara of his portion of the property. Tara accepted this decision and endeavoured to obtain his rights under it, and his first step for that purpose was to apply to Mr. Ross, one of the Judges of the Court of Sudder Dewanny Adawlut, who, in concurrence with Mr. Walpole, each sitting alone, had given the judgment affirming the decree of the Provincial Court, to order wasilat to be given him. The decree had only decreed possession. The application was made under a circular order, which empowered the Court in such cases to award wasilat to be recovered by proceedings in execution; and it claimed wasilat from the date of the decision of the Provincial Court. Mr. Ross so far complied with this request as to order wasilat, not from the date when it was claimed, but from the 4th of July, 1832, the date at which the decision of the Sudder Dewanny Adawlut Court had been given. The history of the litigation during the next twenty years may be thus summarised. Tara pursued every legal means in his power to obtain his rights under that decree; that is to say, to obtain possession of the property and wasilat or the mesne profits for the period during which possession of it had been withheld. The elder brother Doorga endeavoured to defeat his claims by a variety of excuses and pretences, all of which have been found to be false. Tara succeeded in obtaining from time to time possession of certain VOL. V. D J. C. 1878 SAUD ROY CHOWDHRY v. SHAMAPER CHOWDHRY. portions of the property, but he never appears to have succeeded in obtaining any wasilat. It may be enough, however, to pass on HURROPER- to the year 1853, when Tara obtained an order from Mr. Money for a sum of Rs.40,000 wasilat, and a considerable amount of interest. Doorga appealed against that order on the ground, which SAUD ROY he appears to have raised then for the first time, that Mr. Ross, who made the original order in respect of the wasilat in 1832, had acted without jurisdiction, inasmuch as he could not make the order without the concurrence of his colleague Mr. Walpole, and the Court of Sudder Dewanny Adawlut gave effect to this objection. So that the Court of Sudder Dewanny Adawlut in effect ruled that all the litigation which had gone on for twenty years was absolutely fruitless. Under those circumstances, Tara instituted the present suit in December, 1853. Tara and Doorga have long since died, and this appeal is now prosecuted and defended on behalf of their representatives. The suit came on to be heard before the Principal Sudder Ameen of the day, and he decided that the Statute of Limitations was a bar to the claim of Tara to wasilat for more than twelve years before the commencement of the suit. But for those twelve years he gave him wasilat, calculated upon the footing of certain hustabood papers which were put in by the Plaintiff. The Plaintiff contended that he was entitled to avail himself of those hustabood papers on this ground: he said "the hustabood is my rentroll of a certain portion of lands which have been made over to me by my brother. This is some evidence in the absence of contradictory evidence of what the rent was before it was handed over, and therefore of the wasilat or mesne profits to which I am entitled." These hustabood papers had been received in the abortive proceedings which have been referred to, and were received in this case by the Principal Sudder Ameen. There were cross appeals from this judgment, and the case came before the then Sudder Dewanny Adawlut in the year 1857, whereupon that Court reversed the decision of the Principal Sudder Ameen, holding that the Statute of Limitations was not a bar to any portion of the claim, and remanded the case to be retried ab initio, as they expressed it. This judgment of the Sudder Dewanny Adawlut was |