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Beresford Vs. Charlotte Hurst and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All772
AppellantBeresford
RespondentCharlotte Hurst and anr.
Excerpt:
real property - legacy--husband and wife. - - he failed to do so; she was living with her husband, and may well have consented to allow him to cultivate her land and to receive the profits of the estate and appropriate them to the general expenditure. considering the evidence as a whole, we are not satisfied that the conclusion at which the court below arrived on this issue is incorrect......what cattle and implements of husbandry were used in the sir cultivation of mohkampur belonged to hurst. hurst was called upon to produce accounts showing the disposal of the profits of the estate; he failed to do so; and it may be assumed that the profits were used either in the ordinary course of business or in the maintenance of his household. it does not necessarily follow that the estate was not purchased on behalf of and held by mrs. hurst as her own; she was living with her husband, and may well have consented to allow him to cultivate her land and to receive the profits of the estate and appropriate them to the general expenditure. it has been shown that in february 1875, hurst swore he had purchased landed property in india, that ho had bought mohkampur, and was the zamindar of.....
Judgment:

1. In 1876 the respondents, Mr. J. and Mrs. C. Hurst, were in pecuniary difficulties. In suit No. 155 of 1874 the Mussoorie Bank, Limited, held a decree against both respondents. In suit No. 185 of 1874 the same bank held a decree against Mr. J. Hurst and his brother-in-law Mr. Heseltine, and in a third suit brought by Khushal Rai and another a decree had been passed against Mr. J. and Mrs. C. Hurst. In execution of the decree in suit No. 155 of 1874 the village Mohkampur was attached on the 31st March 1876, and an order for sale issued on the 4th April 1876, fixing the 20th May 1876, for the sale, but on the application of the respondents and on payment of Rs. 3,717-15-0, and on the execution of an agreement for the satisfaction of the balance, the sale was postponed sine die. Mohkampur was again attached on the 9th June 1876, in execution of the decree obtained by Khushal Rai, but no further proceedings were taken till October 6th. Finally, Mohkampur was attached on the 13th July 1876, in execution of the decree obtained by the Mussoorie Bank against J. Hurst and Heseltine, and on the 17th July an order was made for the sale of the property on the 20th September. The respondent Mrs. C. Hurst at once tiled an objection, claiming that Mohkampur, as her separate property, should be released from attachment. Her objection was disallowed on the 9th August 1876. On the 18th August 1876, the respondent Mrs. C. Hurst filed a suit claiming that her right might be declared to Mohkampur, that she might be put in possession of it, and the order of sale declared void. Her suit was dismissed by the Court of First Instance on the 15th September 1876, and on the 20th September 1876, the property was put up to sale in execution of the decree obtained by the Bank against Hurst and Heseltine as the property of J. Hurst. It was purchased by the appellant with notice of the claim asserted by Mrs. Hurst, and notwithstanding Mrs. Hurst's opposition the appellant obtained possession on the 22nd November 1876. Meanwhile Mrs. C. Hurst appealed to the High Court, and on the 3rd May 1877, obtained a decree declaring her right to Mohkampur and to possession of the estate, and at the same time the order of the 9th August 1876 was declared null and void, and all subsequent acts and orders under the said order were also declared null and void. The appellant was not made a party, nor did he apply to be made a party, to the appeal brought by Mrs. Hurst, but on the 11th July 1877, in exocution of Mrs. Hurst's decree, possession of Mohkampur was delivered to her and the appellant's servants were turned out of possession. The appellant instituted a possessory suit which was dismissed, and he then instituted the suit out of which the appeal arises. The Court below found that the sale of Mohkampur operated to transfer only what rights were possessed by Joseph Hurst in that estate, that the order in pursuance of which the sale was made was in fact set aside by the decree obtained by Mrs. Hurst, that Mohkampur was the sole property of Mrs. Hurst, that the appellant purchased with full knowledge of Mrs. Hurst's claim and was not on any ground entitled to be protected against it, and that Mrs. Hurst was entitled in execution of her decree to oust the appellant. The Court of First Instance consequently dismissed the suit with costs.

2. In appeal it is contended that Mohkampur was in fact purchased by Joseph Hurst for himself and not for his wife, and that, if it was not purchased for himself but for his wife, when it was conveyed to the wife Joseph Hurst acquired her estate by courtesy, which will pass to the purchaser of his right and interests, and that, if Mrs. Hurst had an equitable title to the property, she is not entitled to protection against the purchaser, inasmuch as, as the equity was so doubtful, he was not bound to take notice of it. The last objection in appeal is expressed in such general terms that it is not clear what is the particular ruling to which this plea is directed. At the hearing the pleader who appeared for the appellant advanced, though he did not seriously press, the objection that the sale was made in execution of all the decrees in which the property had been attached, but it is clear that this was not so. We have the order for attachment, and though there is no application on the file, there is the order for sale. Then there is the objection of Mrs. C. Hurst which would have been frivolous if at the time an order existed for the sale of her rights also, and then there are sale-proceedings and a certificate,--all made in the one cause in which Hurst and Heseltine were defendants, and to which Mrs. Hurst was no party.

3. The pleader for the appellant more strenuously urged that the property was in fact purchased by Hurst on his own account, and that the conveyance was merely taken in the name of his wife as his ismfarzi. On the other hand, the respondents allege that Mrs. Hurst, being entitled under her father's will to a legacy of Rs. 12,000, which was to be paid to her separate use in instalments of Rs. 3,000 per annum, was desirous of investing the legacy in land, and as it was not immediately payable, she borrowed the purchase-moneys of Mohkampur and two other properties from her husband and received conveyances in her own name, her husband consenting that the property so purchased should be held by her to her separate use. It is not denied that Joseph Nelson Heseltine by his will, dated February 16th, 1864, and a codicil, dated the 24th February 1865, devised an estate known as the Ellenborough Hotel estate to his son Robert Henry Heseltine, subject to the condition that Robert Henry Heseltine should, when requested so to do by the trustees, execute a mortgage of the estate to secure the payment of Rs. 16,000 by instalments of Rs. 3,000 per annum, without interest, the first instalment to be paid on the expiration of one year from the testator's decease, and the testator bequeathed to his daughter Mrs. C, Hurst, the respondent, the sum of Rs. 12,000 to be paid out of the instalments provided by the mortgage, commencing with the second instalment, for her sole use and benefit, free from the control of her husband then living or of any future husband. Joseph Nelson Heseltine died on March 8th, 1865, and on March 2nd, 1866, Robert Henry Heseltine executed a mortgage of the Ellenborough Hotel estate to Joseph Hurst and Charles Frederick Vaughan, to secure the sum of Rs. 16,000, with the intention of giving effect to the condition imposed on him by his father's will. There had then accrued due to Mrs. Hurst in November 1868, when the purchase was negotiated, Rs. 6,000; in March 1869, she would be entitled to a further sum of Rs. 3,000. It is said that in 1868 Hurst was in debt, and it is suggested he might have desired to place any property he might acquire beyond the reach of his creditors. It is, however, admitted he had a large cash credit with the Mussoorie Bank. He negotiated the purchase of Mohkampur without informing the seller that the purchaser was Mrs. Hurst, but when the terms of purchase had been settled, he directed the seller to convey the property to Mrs. Hurst. The sale-deed does not state that the property was conveyed to Mrs. Hurst's separate use, but in this country deeds are ordinarily prepared by persons who have little, if any, acquaintance with English law, and therefore we do not attribute any weight to this circumstance. At the time of registration of the sale-deed a power-of-attorney executed by Mrs. Hurst was also registered appointing her husband manager of the estate on her behalf. Hurst paid the purchase-money, Rs. 6,350, out of his cash credit. He subsequently purchased two other properties, one for Rs. 2,000 and another for Rs. 2,500, and these also were conveyed to his wife. The total of these purchase-moneys, Rs. 10,500, would not have exceeded with interest the sum which Mrs. Hurst was to receive under her father's will, if her legacy had been duly paid. For some cause or other its payment was not pressed, possibly because Hurst and R.H. Heseltine were connected in pecuniary affairs, and in 1870 the legacy was sold with Hurst's consent to a trustee, Mr. Vaughan, for the sum of Rs. 7,875, and it is not denied that Hurst received this sum and used it as his own. It is admitted that what cattle and implements of husbandry were used in the sir cultivation of Mohkampur belonged to Hurst. Hurst was called upon to produce accounts showing the disposal of the profits of the estate; he failed to do so; and it may be assumed that the profits were used either in the ordinary course of business or in the maintenance of his household. It does not necessarily follow that the estate was not purchased on behalf of and held by Mrs. Hurst as her own; she was living with her husband, and may well have consented to allow him to cultivate her land and to receive the profits of the estate and appropriate them to the general expenditure. It has been shown that in February 1875, Hurst swore he had purchased landed property in India, that ho had bought Mohkampur, and was the zamindar of Mohkampur, and paid revenue for it. If these statements had been made when the question of the ownership of Mohkampur was in issue, of course they would have gone far to discredit any evidence now given by Hurst in support of his wife's case, but the question then raised was only as to Hurst's knowledge of zamindari matters. While, then, those statements are not to be altogether disregarded, too much weight is not to be given to them. It is also urged that Hurst obtained a loan from a Mrs. Dick on a mortgage of Mohkampur representing himself as the owner, but Mrs. Hurst was a party to the mortgage and would be bound by it. Considering the evidence as a whole, we are not satisfied that the conclusion at which the Court below arrived on this issue is incorrect. It is not shown that Hurst was pressed by his creditors in 1868, nor that he apprehended difficulties, and it is shown that Mrs. Hurst was entitled to funds which would have enabled her to repay the sum advanced to her by her husband, and that in fact she did pay over to her husband the sum she received, which was in excess of the purchase-money of Mohkampur. If a scheme had been devised to conceal Hurst's ownership of Mohkampur, it is improbable that Mrs. Hurst would have made over her legacy to her husband at a time when he had, as is alleged on the part of the appellant, become more involved, and there was every probability that the money would be applied to discharge his debts, or be seized by his creditors. The conveyance to Mrs. Hurst was in our judgment bona fide, and executed in pursuance of the agreement alleged by her. The pleader for the appellant insists principally on the plea that the conveyance to Mrs. Hurst operated to convey the legal estate in Mohkampur to her husband, and that the conversion of the legacy operated to set it free from the separate use of Mrs. Hurst, and that her husband is entitled to the rents and profits during her life, and may obtain an estate by courtesy if he survives her. The parties were, we understand, born in this country; they married in this country before the Succession Act of 1865, and are domiciled here. We are not prepared to hold that the English law would regulate their interests in landed estate in this country acquired by the wife during coverture, but if it were applicable, and if any interest in the estate accrued to her husband, in view of the agreement which we have found proved, it must he held that it came to his hands upon a contract between them that he would hold it in trust for her --Ridout v. Lewis 1 Atk., 269; Thrupp v. Harman 3 M. and K. 512; Newlands v. Paynter 4 M. and C. 408; Parker v. Brooke 9 Ves. 583.

4. The appellant purchased with full notice of the claim set up by Mrs. Hurst, and it must be held his purchase will not defeat her title. The appeal then fails and is dismissed with costs.


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