1. This is a defendants' appeal arising out of a suit for possession over certain property which is described in the plaint. The suit was dismissed by the trial Court. The lower Appellate Court however has granted decree for joint possession. Two of the defendants have challenged this order and the plaintiff has preferred a cross-objection. Shortly put, the plaintiff's case is that the property in suit was purchased in 1887 from one Mujtaba Beg and his sons and daughter and the mother of his wife Mumtaz Begam. The property is described in the sale-deed as property inherited by the executants of the deed from Mujtaba Beg's wife Mumtaz Begam.
2. In appeal in this Court the main argument advanced by the appellants was that the sale deed of 1887, which is the title deed of the plaintiff, was not proved. The original was not produced. A certified copy of the deed however was filed. Learned counsel for the appellants maintained that this was not sufficient. He argued that the production of a copy of a deed more than thirty years old raised no presumption as to the execution of the original. In support of this argument he referred to the decision of the Privy Council in Basant Singh v. Brij Raj Saran Singh (1933) 22 AIR PC 132. In the course of the judgment of the Board in that case it was declared that the production of a copy of a deed was not sufficient to justify the presumption of due execution of the original under Section 90, Evidence Act. Had the plaintiff done nothing more therefore than produce a certified copy of the original deed of the year 1887 he would not have succeeded in establishing his title to the property in suit. But in this case he had done something more. The evidence which has been adduced by the plaintiff in proof of his title has been considered in detail by the learned Civil Judge in the course of his judgment. That evidence may be summarized thus:
(1) The certified copy of the sale deed.
(2) A deposition by one Ata Beg, the grandson of Husain Ali Khan, of whose estate the property in suit is alleged to have formed part This deposition was made in the year 1912 in Suit No. 124 of 1911. Ata Beg was one of the identifying witnesses of the executants of the sale deed of the year 1887 in the registration office and in the course of his deposition he refers to the deed.
(3) The evidence of a number of witnesses who deposed to the possession of the plaintiff; witnesses whose testimony has been accepted by the learned Civil Judge.
3. In my judgment this evidence is sufficient to prove the execution of the sale deed of 1887. The certified copy is a copy obtained from a public register. There is no suggestion of any fraud or collusion. The vendees and their successor have been in possession of the property purported to be conveyed by the deed. The deed is referred to by one Ata Beg. It was not in his interest to admit the execution of this deed because it conveyed property which had formed part of the estate of his ancestor Husain Ali Khan. He is admittedly one of the identifying witnesses of the executants of the deed at the registration office. There was ample evidence upon record in my opinion to justify the learned Civil Judge in holding that the deed upon which the plaintiff founded and of which a certified copy only was produced was in fact executed in the year 1887.
4. Upon a consideration of the evidence the learned Civil Judge has held that the plaintiff has been in possession within 12 years of the institution of the suit out of which this appeal arises. This is a finding of fact which cannot be disturbed. There is no question therefore of the plaintiff's claim being barred by limitation.
5. Learned counsel for the appellants challenged the decision of the learned Civil Judge upon another ground. He referred to the fact that the property conveyed by the sale deed of 1887 is described by the executants as property which they had inherited from Mumtaz Begam. It was maintained that inasmuch as this property had formed part of the estate of Husain Ali Khan and Mumtaz Begam had pre-deceased her mother Ajab Begam and her husband Mujtaba Beg nothing could have been inherited by the executants from Mumtaz Begam. It may well be that the property in suit is wrongly described as having been inherited from Mumtaz Begam. It may be on the other hand that the property came to Mumtaz Begam in some other way than by inheritance. It has not been argued and there is nothing upon the record to support a suggestion that there was an ulterior motive for describing the property in the sale deed as having been inherited from Mumtaz Begam. The Court would not be justified in holding upon the evidence that the property could not have been validly conveyed by the executants of the deed of 1887 merely because it was described as having been inherited by them from Mumtaz Begam. The property which the deed purported to convey is the property which has been in the possession of the plaintiff. This finding has been arrived at by the learned Civil Judge after a careful consideration of the evidence and his finding upon this point is a finding in fact which cannot now be disturbed. The contention therefore that the plaintiff's claim should fail because of the aforementioned description in the sale deed cannot be sustained.
6. A cross-objection, as already observed, has been preferred by the plaintiff against the order of the learned Civil Judge. The learned Judge has granted a decree not for possession but for joint possession to the plaintiff. This he has done because at the time of the execution of the deed of 1887 defendant 4, Moosi Raja Beg, was a minor. The legal guardian of a Mahomedan minor is not entitled to alienate the property of the minor except in certain cases. The property may be alienated by the guardian 'where the minor has no other property and the sale is necessary for his maintenance.' In the sale deed it is recited that the sale is being effected for the purpose of providing for the education of the minor. It may well have been that for the maintenance of the minor the execution of the sale deed was necessary. Be that as it may the plea that the sale deed was not binding upon Moosi Raja Beg, defendant 4, because he was a minor at the time of the execution of the deed, was not taken in the written statement nor does it appear that an issue on that point was framed. In these circumstances the defendants ought not to have been allowed to raise the point in the lower Appellate Court and they certainly cannot be allowed to raise it in second appeal. If the point had been raised in the written statement the plaintiff might have been in a position to adduce evidence to prove that the sale deed was binding upon the minor. In the result I hold that the plaintiff's claim must succeed. The appeal is accordingly dismissed and the cross-objection is allowed. The plaintiff will have decree for possession as prayed for. The other claims raised by the plaintiff in his reliefs have not been pressed. The plaintiff is entitled to his costs in this appeal and in the cross-objection. Leave to appeal is refused.