In Re: In the Matter of the Petition of Oodoychurn Mitter

White, J.—We think that the order of the Judge in this case must be set aside. There were rival claimants; both of them wore very distant relations of Kalichurn, to whose heirs the debts belonged. The Judge has decided the rival claims upon a consideration, first, of the nearness of kinship, and, secondly, of the nearness of residence, of the party who succeeded before him to the place where most of the debtors reside. We think that ho is wrong in this. Neither of the above considerations warranted the Judge in awarding the certificate to the respondent in preference to the appellant, who has prima facie, the better title to inherit to Kalichurn, and consequently to the beneficial ownership of the debts. A recent authority which is cited to us--the case of Gobind Persad Talookdar v. Mohesh Chunder Surmah Ghuttack (15 B.L.R. 35 : 23 W.R. 117)--shows that the present appellant has the preferable title, and that decision appears to have been followed by the Chief Justice and Mr. Justice Morris in special Appeal No. 208 of 1875, decided on the 31st May 1877. We do not intend by this decision to decide definitely (in fact, we have no jurisdiction to do so) as to who has really the host title to the property. We content ourselves by saying that the applicant, upon the authorities as they now stand, has the better title.

We shall, therefore, set aside the order appealed against, and direct that the certificate be granted to the appellant upon his giving security to the satisfaction of the Judge to the extent of the amount of the debts sought to be collected,

The appellant is entitled to the costs of this appeal.