not, it seems to me, operate against plaintiff's claim to have an account. Under the circumstances supposed, the liquidation of the debt out of the usufruct, and not the expiration of a term, would be the cause of action of plaintiff. Whether an account be taken sooner or later, to the mortgagors the result would be the same; and therefore, unless we were satisfied that the present transaction imported substantially a lease, and that the lessees for the term of 10 years stipulated were not accountable to plaintiff, I think that in the present action we should take an account of the usufruct. But I concur with my colleagues in dismissing the appeal, because I come to the conclusion that the lessor, the original plaintiff, conveyed a substantial 10 years' lease to the defendants, and that the lessees are not liable to account to the lessor for the rents realised by them throughout that term. THE 29TH DECEMBER 1858. PRESENT: J. H. PATTON, Esq., Judge. H. V. BAYLEY, Esq., Officiating Judge. PETITION No. 1278 of 1858. IN the matter of the petition of Jalal Takoor, filed in this Court on the 9th August 1858, praying for the admission of a special appeal from the decision of Mr. E. Jenkins, additional judge of Tirhoot, dated the 7th June 1858, reversing that of Moulvee Abdool Wahub, moonsiff of Tazpoor, dated 28th July 1857, in the case of Jalal Takoor, plaintiff, versus Mirza Chakowree Beg and others, defendants. Vakeels of Petitioner-Moonshee Ameer Alee and Baboo Vakeel of the Opposite Party-Moulvee Aftabooddeen Mahomed. It is hereby certified that the said application is granted on the following grounds. Plaintiff sued on the allegation that he purchased the property in suit from Imdad Alee, the authorised agent of the other defendants, the original proprietors. Defendants, except Meher Alee, deny the authority of Imdad Alee to sell, and the receipt by them of the purchase money. The court of first instance held that Imdad Alee had the authority to sell, that he did sell, and that the defendants received the purchase money. On appeal, the judge held that the two witnesses called to prove Imdad Alee's authority to sell, failed to do so; and he gave a decree for all the defendants, Meher Alee included. The plaintiff appeals specially, urging: first, that the judge's decision is defective, inasmuch as he has not tested the evidence as to Imdad Alee's power of attorney, by going into the facts which were considered proved by the court of first instance, viz. the receipt of the purchase money and the transfer of the property to plaintiff by defendants; secondly, that in any case, Meher Alee, who admitted his liability, could not be exempted. We are of opinion, on the first point, that as the judge found as a fact, from the evidence and the probabilities deducible from the record, that the power of attorney, which was the foundation of the sale, was not proved, it is not open to us, under the latter part of Clause 4, Section IV. Act XVI. of 1853, to consider the special appellant's plea on this point. We admit the special appeal on the second point, and remand the case in order that the decree may be amended accordingly. Special Appeal from the decision of Mr. A. Littledule, Officiating RUNJEET SINGH AND RAMAPERSAD, (DEFENDANTS,) APPELLANTS, versus MUSST. DOOKHIN ACHARAJ KOONWUR, (PLAINTIFF,) Vakeel of Appellants-Baboos Ramapersad Roy and Vakeels of Respondent-Moonshee Ameer Alee and Moulvee THIS case was admitted to special appeal on the 20th April 1857, under the following certificate recorded by Messrs. B. J. Colvin and D. I. Money. "The suit is for recovery of rupees 303-9, surplus collections under a zur-i-peshgee lease, and for cancelment of the lease. "The particulars of the case, will be found in the judge's printed decision, pages 184, 185, and 186, of the zillah Shahabad Decisions of July 1856. In taking an account re quired in adjustment of a usufructuary mortgage, held that the zillah judge erred in crediting as realised by the mortgagee a sum that was only recover. able but not recovered; "The principal sudder ameen dismissed the suit, as he found tha: there was a balance still due to the mortgagees. The judge, in apalso that the peal, decreed to the plaintiff the amount claimed by her, viz. rupees 303-9, with interest to the date of realisation. case should be remanded for a distinct find. ing as to the "The defendants specially urge two pleas; first, that the suit canrealisation of not be brought until the zur-i-peshgee lease expires; secondly, that another item. the judge was wrong in decreeing to the plaintiff rupees 247-1-9, on the ground, that it was an amount due from the ryots, which ought to be included as part of the profits derivable by the defendants from the estate, and which they had the power to realise. Case remanded to re try the point whether the "We admit the special appeal upon the second point, in order to try whether the judge's decision is not contrary to the provisions of Section XI. Regulation XV. of 1793, agreeably to which, only the gross receipts from the property mortgaged, and not sums that may be recoverable, should be taken into account in adjustment between the mortgagor and mortgagee." JUDGMENT. There is no doubt that, under the provisions of the law cited, the mortgagees, who have had the usufruct of the mortgaged property, are bound, upon an adjustment of accounts, to deliver in the accounts of their gross receipts, and as the sum of rupees 247-1-9 does not appear to have been collected by them, we reverse the judge's decree and dismiss the plaintiff's claim to that sum. Regarding a further item of rupees 109-0-3, also awarded to her upon the same principle, we remand the case to the judge that he ascertain distinctly and determine whether it was actually realised or not by the defendants, as from his decision it is doubtful whether the amount was ever collected by them from the ryots. THE 29TH DECEMBER 1858. J. H. PATTON, Esq., Judge, H. V. BAYLEY, Esq., Officiating Judge. PETITION No. 1285 OF 1858. In the matter of the petition of Peareemohun Banerjea and others, filed, in this Court on the 9th August 1858, praying for the admission of a special appeal from the decision of Mr. H. M. Reid, acting law of limita judge of East Burdwan, dated the 10th May 1858, affirming suit; as plain that of Mr. H. S. Thompson, principal sudder ameen of that tiff's possession district, dated 6th July 1857, in the case of Sreenath Dutt, for any defi. nite period was plaintiff, versus Peareemohun Banerjea, and others, defendants. tion bars the Vakeels of Petitioners--Moonshee Ameer Alee and Baboo Ramapersad Roy. Vakeels of the Opposite Party-Baboos Shumbhoonath Pundit and Kishenkishore Ghose. It is hereby certified that the said application is granted on the following grounds. Plaintiff sued for 1 a. 1 g. 1 c. 1 k. of a putnee talook as his ancestral right. The purchaser of a portion of that right was made a co-defendant. Defendants pleaded that it was the self-acquired property of Anundmoy Dutt, and that the suit was barred by the law of limi tation. The principal sudder ameen decided in favour of plaintiff; and on appeal by defendants to the judge, he tried the case on the two issues of the applicability of the law, of limitation, and the property being self-acquired or ancestral. The judge found limitation not to apply, and the property to be ancestral. He therefore gave plaintiff a decree. The defendants appeal specially, urging that limitation bars the suit, and that the judge's finding to the contrary is incorrect; first, because the collectorate notice of 1844, cited and relied on by the judge, records Anundmoy as the holder of the talook, not Omakunt, as stated by the judge; secondly, because the judge relies on the fact of Anundmoy's widow and the brothers of plaintiff making an amicable division, whereas that was not done, as shewn by the kubala of 5th Aughun 1259 B. S., in the exercise of their ancestral rights; and thirdly, as the judge finds vaguely that plaintiff was a minor, but neither on this nor the above two points distinctly finds that possession for any definite period excluded the plea of limitation. We find, on the first point, that the extract of the register in the notice gives the name of Anundmoy not of Omakunt, as the recorded holder of the talook, and that extract is the essential part of such papers. Further, we see that the judge states that the magistrate's judicial decision of 1842, recorded Anundmoy as the holder of the property. On the second point, we find the kubala cited does bear the construction pleaded, and therefore the judge's inference, (if such inference was intended,) that the brothers acted as in the exercise of ancestral rights, is incorrect. On the third and both previous points, we think the judge has not clearly shewn how plaintiff's possession is proved for any definite period, so as to preclude the application of the law of limitation. We therefore remand the case that the judge may re-try it, on the point of limitation, with reference to the above remarks, or any other proofs of plaintiff's possession the record may afford. not shewn so as to preclude the application of that law. This was a suit for julkur Regular Appeals from the decision of Baboo Punchanun Banerjea, CHUNDERNATH BHADOOREE AND OTHERS, versus DOORGASOONDEREE DEBEA AND OTHERS, Vakeels of Appellants-Mr. R. T. Allan, and Baboos Unnoda- Vakeels of Respondents-Baboos Ramapersad Roy and Shumbhoonath Pundit. Suit laid at Company's rupees 9,950. CASE NO. 180 OF 1857. DOORGASOON DEREE DEBEA AND OTHERS, (DEFENDANTS,) versus SHEEBCHUNDER BHADOOREE AND OTHERS, Vakeels of Appellants-Baboo Kishenkishore Ghose and Moonshee Vakeels of Respondents-Baboos Unnodapersad Banerjea, Bung- Suit laid at Company's rupees 9,950. MESSRS. B. J. COLVIN AND D. I. MONEY.-This suit was inbhuratee lands, stituted on the 13th February 1849, and dismissed by the principal and bheel to which the claim was based upon their having been assigned to plaintiffs in a former decree of 1812, in execution of which plaintiffs had got possession, but had been subsequently dispossessed by defend ants. The principal sudder ameen decided partly for plaintiffs and partly for defendants; hence appeals were preferred by both. Plaintiffs' appeal dismissed, for want of proof of possession and dispossession as alleged. The defendants in their appeal repeated a plea founded upon limitation, which had formerly been rejected by this Court when the case was before it in 1853. Held that the plea could not be entertained; but, upon the proofs of the case, the majority of the Court held that plaintiff's had not proved their claim; it was therefore dismissed in toto, while the dissentient judge would have maintained the decree of the principal sudder ameen in favor of plaintiffs as far as regarded part of the julkur. |