1. This is a first appeal by five defendants against a decree of the learned Subordinate Judge of Agra passed in a suit for partition. The family tree is as follows:
(See Table on p. 606)
2. The property in the plaint of which plaintiff Ghulam Imam asks for a share on partition consists of four houses. List A comprises three houses which really form one house, and of these houses No. 1 is called bara haveli and house No. 2 is called middle house and house No. 3 is called the diwan khana. List B comprises the 4th house which is called the chhapakhana. All these houses are adjacent and all bear the same number in the Municipal Register No. 2507. The case for the plaintiff in the plaint is that Mohammad Zaman Khan, his grandfather, and the grandfather of the five appellants, purchased the property in list A, and that the house in list B now known as chhapakhana was purchased by Mt. Zahuran, the widow of Mohammad Zaman Khan. The first question which has been urged before us on appeal is in regard to this
Mohammad Zaman Khan
| | |
Ahmad Khan Sufi Mt. Umda Khanam Najaf Khan
(younger son, died (died childless) (eldest son, died in
about 1891) 1866 or 1867)
=Mt. Huseni Begam |
Def. 7 |
| | | | | | |
Qadir Ali Nasir Ali Basit Ali Wajid Ali Hamid Ali Mt. Amir |
Khan Deft. Khan Deft. Khan Deft. Khan Deft. Khan Deft. Jan Deft. |
Appellant Appellant Appellant Appellant Appellant 6 |
1 2 3 4 5 |
| | |
Ghulam Imam Mt. Shabbo Fazal Imam
Plaintiff | Nur Mahommad (died)
Mohammad Ishaq |
Deft. 9 Mt. Imtiazi
house No. 4, the chhapakhana or printing press. The appellants allege that although his house was purchased by a sale deed of 8th December 1855 in the name of Mt. Zahuran, still that purchase was only benami, and the property was bought really for the father of the appellants Ahmad Khan, who provided according to the appellants, the consideration of Rs. 500 for this sale deed. There is no direct evidence for the appellants that Ahmad Khan did provide this consideration, or that the sale deed was benami for Ahmad Khan. The only witness approximately on this point and of this period is Mulla Mohammad Amir whose evidence was taken on commission in Gwalior. This witness states that he knew Ahmad Khan, and that there was a Rais of Gwalior called Musahib Khan, who was the patron of Ahmad Khan. He further states that Ahmad Khan came to Gwalior four or five years before the Mutiny, and that would be in 1852 or 1853, and left Gwalior a year or two after the Mutiny. He alleges that during his stay in Gwalior Ahmad Khan compiled 'a book Fasun Babul and Mina Bazar' received a reward of Rs. 5,000 from his patron for this book or books. A copy of one of these books the Fasun Babul is produced by this witness. This book was printed at Cawnpore in the year 1855, but it does not state anything which would support the allegations of the witness that the author received Rs. 5,000 for this work from his patron.
3. The further evidence on which the defence rely to prove that this sale deed was benami, consists of three deeds of relinquishment in each of which members of this family who do not descend from Ahmad Khan have stated that they have no claim to this part of the property. These three relinquishment are as follows: A deed of 5th January 1900 by Mt. Umda Khanam, sister of Ahmad Khan; a deed of 3rd January 1912 by Nur Mohammad Khan, nephew of the plaintiff and grand nephew of Ahmad Khan; a deed by Mohammad Ishaq another nephew of plaintiff, defendant 9, dated 25th January 1912.
4. The first point which is to be noted in regard to these three deeds is that in each case the family of the appellants gave a monetary consideration to the person executing the deed of relinquishment, and this was stated in the deeds to be in lieu of the sale by the executant of the rights which he possessed in certain portions of the family property, namely, in the bara haveli and diwankhana. Then follows a sentence stating that the executants have no rights in other parts of the property, specifying the chhapakhana, and the recital is made that this chhapakhana was purchased by the wife of Zaman Khan Sufi for Rs. 500. We consider from a perusal of these documents that the most natural conclusion is that the executants sold all their rights in the family property and the statement in regard to the printing press house was merely introduced because the appellants desired to have evidence to use against Ghulam Imam, the present plaintiff. We are further strengthened in this view by a postcard from the plaintiff dated 20th January 1912, printed at p. 83 of the paper book. This is addressed to one of the appellants, Nasir Ali Khan, and states that the appellant Qadir Ali Khan was attempting to deprive the plaintiff of his rights and that Qadir Ali Khan had forcibly and unlawfully induced his aunt Mb. Umda Khanam to execute one deed of relinquishment, and that now he had obtained another deed of relinquishment from Nur Mohammad. The plaintiff asserted that although he had remained silent till now, he would now make a stand for his rights.
5. We consider that this evidence from the deed of relinquishment is by no means of any weight in favour of the appellants as regards their allegation that the sale deed of 1885 was benami in the name of Mt. Zahuran. The oral evidence of their witness from Gwalior amounts to nothing. Accordingly we consider that the appellants have altogether failed to prove their ease in regard to this deed of 1855 being benami. We might briefly note that the ancestor of the family Zaman Khan, was the jamadar of the Collector of Agra, and that he died about the year 1840. He was admittedly a man of considerable age, and it is not impossible for a man in his position to have left his widow sufficient funds to purchase an adjoining house for Rs. 500. We may also note that it was not until 1869 that a printing press was established in this house. It would not be likely, therefore, that in 1855, at the time of purchase. Ahmad Khan would have any particular interest in this house. We may also note that in the deed of sale of 1855 in question the eastern boundary gives the land of the house of Najaf Khan, that is the house known as the bara haveli and diwan khana. The family house was, therefore, at that time known by the name of the elder brother Najaf Khan and not by the name of the younger brother Ahmad Khan, who, according to the appellants, was at the time living in Gwalior at a considerable distance from Agra and earning his living by composing verses. We think, therefore, that the appellants have failed to prove this ground of appeal.
6. The next point which was argued for the appellants before us was that the dastbardaris of Nur Mohammad and Mohammad Ishaq should be taken to include the middle house (house No. 2). The learned Subordinate Judge has held the contrary. It is true that these dastbardaris do not specify the middle house, that is, they say that the executant relinquishes his rights in the bara haveli and the diwankhana. From an inspection of the map we find that this middle house is really a portion of the bara haveli and the diwankhana. It has in fact at present only a few rooms and originally consisted of a cook-house and a latrine. The deed of partition amendment of 1925 states that these rooms should be enjoyed by five of the appellants in common. This portion according to this deed of partition now consists of two latrines and a bath-room. This cannot be said in any sense to be a separate house. We consider that the deeds of relinquishment must be construed to include this middle house (house No. 2) and accordingly we find for the appellants on this point.
7. The third point which was argued for the appellants was that the deed of relinquishment executed by Mt. Umda Khanam was valid. It was argued with considerable ingenuity that this question was now time barred, because the period of limitation for Mt. Umda Khanam to sue for declaring such a deed invalid had elapsed. But the objection taken by the plaintiff to the validity of this deed is fundamental and the objection is that it is not proved that Mt. Umda Khanam did execute this deed. On p. 62 of the paper book the endorsement by the Sub-Registrar is printed, and this states:
The lady admitted the completion and the execution of this document and stated that she did not intend to sell the property, and that after her death the children of both the brothers might get shares, and that she had affixed her mark to this document.
8. This endorsement is further borne out by the evidence of the attesting witness Mohammad Ali, who states that Mt. Umda Khanam had admitted execution to the Sub-Registrar, but subsequently denied execution. The scribe and the other attesting witnesses have not been examined, and the motive for not examining them has not been explained, except in the case of one of them who is alleged to be dead. The single attesting witness Mohammad Ali who was examined is a person who is closely connected with the appellants. Under these circumstances we consider that the appellants have failed to prove that Mt. Umda Khanam did execute a deed of relinquishment. As the deed which she stated she intended to execute to the Sub-Registrar was a deed entirely different from this deed which purports to be a sale deed of her rights in the bara haveli and diwankhana, we consider that the Sub-Registrar made an error when he registered this document and he did so contrary to the clear provisions of the Registration Act, which state that the Sub-Registrar must not register a document when the executant denies execution of that document. Accordingly we find that the appellants have failed to prove their case on this point.
9. The fourth point urged on behalf of appellants was in regard to certain accounts for the years from-1899 to 1925 produced by the appellants. It is admited that these accounts are not very business like. The appellants desire these accounts to be taken as evidence in order to prove what proportion the plaintiff ought to pay to the appellants when the plaintiff is awarded a share of the property in suit. It is admitted that the appellants had been paying the municipal water-rate and also had made additions to the property in question. The accounts produced by the appellants, however, admittedly relate to a large number of bungalows owned by She appellants and there is no detail given in these accounts as to which items relate to the property in suit. It is therefore impossible for the Court to use these accounts for the purpose of arriving at any conclusion on the point in question.
10. We next take up the cross-objections of which there are two sets. The cross-objections of the plaintiff related first to the point that the relinquishment by Nur Mohammad deceased was invalid, and therefore that the plaintiff ought to inherit a fractional share in the property in question from Nur Mahommad. We see no reason to hold that this deed of relinquishment was invalid. Nur Mohammad was a person of full age and he appeared before the Sub-Registrar and admitted execution of the document.
11. The next point in the cross-objection of the plaintiff is that in his evidence the Court wrongly took down that Rs. 2,500 had been expended by the appellants in the construction of a verandah of house No. 1, whereas the cross-objection alleges that the figure should have been Rs. 250. There is no affidavit on this point and nothing in confirmation of it was shown by the learned counsel for the appellants. It is admitted that the record contained the figure of Rs. 2,500, and it was for the plaintiff to apply to the lower Court to correct that record and not to make it the subject matter of a cross-objection in appeal. We therefore dismiss the cross-objection of the plaintiff with costs.
12. The next cross-objection was filed on behalf of Mt. Imtiaz Begum, defendant 8, and Mohammad Ishaq, defendant 9. These two defendants ask that shares of the family property should be allotted to them, and that it should be held that the deeds of relinquishment by the father of Mt. Imtiaz Begam and by Mohammad Ishaq should be considered invalid. Both these deeds were executed by persons of full age and admitted to have been executed before the Sub-Registrar. We see no reason to hold that these deeds were invalid. Accordingly we dismiss this cross-objection also with costs.
13. It now remains to consider one other matter. The decree of the lower Court was the subject of an application for review and the learned Subordinate Judge has amended his decree by deducting Rs. 1,550 from the total costs which he held that the appellants had expended on the family buildings. This (Rs. 1,550) was the sale price of a house sold by Khwaja Ghulam Imam, and the appellant Qadir Ali stated that he had included portion of the site of this house in the bara haveli. The decree at first directed that the plaintiff should pay his full share of this Rs. 1,550, but on review the learned Subordinate Judge held that the plaintiff should not pay any part of this Sum, because it was not shown what part of the site had been included. In the absence of definite evidence on the point by, the appellant we consider that the order in review is correct. Amendment was also made in review in regard to the amount for house-tax and water-rate, and we consider that this amendment was correct.
14. Now the effect of our finding on appeal is that the deed of relinquishment of Nur Mohammad includes house No. 2. Accordingly no distinction should be drawn in regard to the share of the different houses and the four houses all stand on the same footing. Accordingly we allow this appeal to this extent that the share of the plaintiff in house No. 2 will be 10/50 instead of 11/50 and we allow proportionate costs to the appellants. We allow also proportionate costs to respondent 1. Both the cross-objections are dismissed with costs.