Norman Macleod, C.J.
1. The plaintiffs sued to recover posssesion of the suit lands alleging they belonged to their great grandfather Kondu. Kondu left two sons Moru and Chandra. There was a separation whereby plaintiffs' father Guna Moru got a half share, the other half going to the descendants of Chandra now represented by the defendants.
2. The plaint states that in 1885 plaintiffs' father gave his share to Haridas Ramdas by passing a mortgage-deed in the form of a sale for Rs. 1,000. Possession remained with plaintiffs father. Defendant's father also gave his share to Haridas on the same condition, retaining possession. In 1886, plaintiffs father having died, their mother, defendant and Haridas came to an arrangement by which it was found that the amount due by both branches was Rs. 5,000 and the defendants passed instalment-bond for that amount for the plaintiffs and themselves, keeping all the land in their possession and giving a portion of C.S. No. 24 and the whole of C.S. No. 17 to the plaintiffs' mother for the maintenance. In 1908-09 the defendants had liquidated the debt. The plaintiffs, therefore, claimed back from the defendants the properties originally mortgaged by their father to Haridas.
3. The defendants pleaded that the family properties were partitioned between Moru and Chandra. Guna sold his lands to Haridas by a sale-deed of the 12th September 1885. The lands, except C.S. No. 17, were purchased orally by defendant No. 1 and the father of defendants NOS. 2 to 5 in 1886 from Haridas. An instalment-bond in respect of the properties so purchased was given to Haridas and the amount due under the bond had been paid. Survey No. 17 was not purchased from Haridas by the defendants. A portion of Section No. 24 was sold by Krishna Chandra and was recently purchased by the plaintiffs. The plaintiffs having recently got possession of the deed of 1885 had brought a false suit against the defendants.
3. The plaintiffs filed a reply to the effect that an arrangement had been arrived at between their mother and the defendants whereby defendant mortgaged the whole property to Haridas, so that when that debt was paid off, defendants being in possession all along, the plaintiffs were entitled to get back their property.
4. The Trial Judge held that the plaintiffs were not entitled to prove that the document of the 12bh September 1885 was a mortgage and not a sale-deed. But under the decision of the Privy Council in Mauny Kyin v. Ma Shwe La 42 Ind. Cas. 642 : 45 C. 320 : 44 I.A. 236 : 15 A.L.J. 825 : 33 M.L.J. 648 : 3 P.L.W. 185 : 6 L.W. 777 : 22 C.W.N. 257 : 23 M.L.t 36 : 27 C.L.J. 175 : 20 Bom. L.R.278 : (1918) M.W.N. 303 : 9 L.B.R. 114 : 11 Bur. L.T. 21 the plaintiffs would be entitled to prove that the defendants purchased from Haridas knowing that he was not the owner. The question then is whether plaintiffs have succeeded in proving the arrangement they alleged was made between their mother and the defendants in 1886. They rely on the evidence of Jaysing (Exhibit 101) and Haridas (Exhibit 103). The TrialJudge has discussed that evidence in very great detail and has come to the conclusion that the agreement alleged was never made. I can find no reason for differing from him. The appeal must be dismissed with costs.
Crump, J. The parties to this suit are related as shown in the following pedigree :
5. The properties in suit originally belonged to Kondu. Plaintiff's father Guna separated from his cousin Krishna, Zipru and Vishnu and took half the property. In February 1885 he mortgaged his half share to Haridas. In September 1885 he executed a sale-deed of the same property to Haridas. He died in February 1888. After his death in June 1886 defendant No. 1 and his brothers Krishna and Zipru mortgaged the whole property to Haridas.
6. The plaintiffs are suing for possession and they must show title and possession within twelve years of the date of suit. The suit was filed on October 29th 1920. On the face of the documents, it appears that the title of plaintiffs father passed to Haridas by the sale of September 1885 and the natural inference from the mortgage by defendant No. 1 and his brothers to Haridas in June 1886 is that the vendee between those dates transferred the property to his mortgagors. The mortgage-deed contains a recital to that effect, and defendant pleads that there was an oral sale by Haridas to them. Haridas, who was plaintiff's witness, says that this was so. There are thus several difficulties in the way of plaintiff's success. Their case, as placed before us, is that the sale-deed by their father to Haridas was intended to operate as a mortgage, and, further, that the oral sale by Haridas was intended to be for their benefit, defendant No. 1 and his brothers being be name only. There is some inconsistency here but, generally, what they allege is that the equity of redemption remained with them, and that defendant No. 1 and his brothers agreed to hold the property on their behalf and to pay off Haridas; who continued to be the mortgage, in fifteen years, and then to restore the property to plaintiffs, or at least their share of it. In order to establish this case plaintiff's must prove at the outset that the sale by their father in September 1885 was in fact intended to be a mortgage. Defendants were not parties to that document, and in view of the decision of the Privy Council in Maung Kyin v. Ma Shwe Lal 42 Ind. Cas. 642 : 45 C. 320 : 44 I.A. 236 : 15 A.L.J. 825 : 33 M.L.J. 648 : 3 P.L.W. 185 : 6 L.W. 777 : 22 C.W.N. 257 : 23 M.L.T 36 27 C.L.J. 175 : 20 Bom. L.R.278 : (1918) M.W.N. 303 : 9 L.B.R. 114 : 11 Bur. L.T. 21 it may be open to them to do so despite Section 92 of the Indian Evidence Act, but it would require to be establised by satisfactory evidence. It will be observed that the fifteen years of the original agreement expired in 1901 and on this point plaintiffs' explanation is that it was found impossible to pay off the debts until 1908, and that the property, therefore, remained with defendants until that date.
10. Now at the outset it is clear that plaintiffs have been guilty of most inexplicable delay even on their own case. They knew in 1908 that they were entitled to the property in suit, but for nearly full twelve vears they took no action. It would be difficult to hold their case proved on the evidence of their two witnesses Jaysing and Haridas, for, apart from the delay, the transaction alleged is of a most unusual and indeed improbable description. There is no obvious reason why defendant No. 1 and his brothers should have undertaken the payment of what Guna owed to Haridas unless the property was sold to them. They benefited in no way by doing so. There is little affirmative evidence in favour of the theory put forward by plaintiffs, and it is impossible to say that the lower Court was wrong in refusing to believe it. Some stress is laid on the fact that the documents evidencing the mortgage and sale by Guna to Haridas were produced by plaintiff but that alone is not a very convincing circumstance. It would require a far more convincing Case than has been made out to justify a Court in overriding defendants possession from 1836 down to the date of the suit.