HURROPERSAUD ROY CHOWDHRY Vs. SHAMAPERSAUD ROY CHOWDHRYTL

JUDGEMENT

(1.) 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 recapitulating the history, inasmuch as the facts necessary to the determination of the points now before them need no very lengthened statement.

(2.) TWO brothers, Doorgapersaud Chowdhry and . Tarapersaud 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, 1821). 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 stop 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 tins 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.

(3.) 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.