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Robert Skinner and ors. Vs. Chandan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.215
AppellantRobert Skinner and ors.
RespondentChandan Singh and ors.
Excerpt:
regulation (vii of 1822), section 9 - duties of settlement officers--entry in khewat and khatanni--evidence art (i of 1872), section 35--n.w.p. land revenue act (xix of 1873), section 91--wajib-ul-arz--presumption of accuracy. - - therefore, we think that the evidence afforded by these documents is good secondary evidence of the matters sought to be established in this case. ' even, therefore, if the earlier khewat to which we have referred, were not good prima facie evidence of the mortgage in question, we think that the later khewat for the year 1896 would in the absence of evidence to the contrary, establish the fact that the skinner family were mortgagees of the property in suit......dated the' 21st of april 1847, stated to have been executed in favour of cerium members of the skinner family to secure a sum of rs. 6,288. on payment of this sum the property was according to the evidence to be redeemable. the plaintiffs are admittedly some of the heirs of the mortgagors and entitled to redeem if they can establish that the property is in the possession of the defendants-mortgagees as mortgagees by virtue of the alleged mortgage. the learned subordinate judge of meerut after consideration of the evidence adduced in support of the plaintiff's case passed a decree for redemption. from this decree the present appeal has been preferred and the only question before us is as to the sufficiency of evidence adduced for the plaintiffs in proof of the alleged mortgage. * *.....
Judgment:

1. The suit out of which this appeal has arisen was a suit for the redemption of a mortgage, dated the' 21st of April 1847, stated to have been executed in favour of cerium members of the Skinner family to secure a sum of Rs. 6,288. On payment of this sum the property was according to the evidence to be redeemable. The plaintiffs are admittedly some of the heirs of the mortgagors and entitled to redeem if they can establish that the property is in the possession of the defendants-mortgagees as mortgagees by virtue of the alleged mortgage. The learned Subordinate Judge of Meerut after consideration of the evidence adduced in support of the plaintiff's case passed a decree for redemption. From this decree the present appeal has been preferred and the only question before us is as to the sufficiency of evidence adduced for the plaintiffs in proof of the alleged mortgage. * * *

2. It appears that in the year 1833 a settlement of the property in question with other property was made under the supervision of Mr. Elliot as Settlement Officer, and in the khewat prepared on the occasion of that settlement the predecessors in title of the plaintiffs are shown to have been the owners of the property in dispute. In the next settlement, described as the settlement of Mohur Singh, which was prepared during the years 1853 to 1858, the predecessors in title of the defendants, mortgagees, whom we shall shortly describe as the Skinner family, are mentioned as mortgagees of the property,' whilst the alleged mortgagors are specified as 'mortgagors.' This is the settlement which followed that of Mr, Elliot in which there is no reference to the mortgage in favour of the members of the Skinner family. In a subsequent specification of shares of the property in dispute, prepared in the year 1276 Fasli, corresponding to the year 1869, we have entries in which not merely is the mortgage referred to but the details of it are given. In column 4, in which are recorded the names of co-sharers, several members of the Skinner family, whom it is unnecessary to mention particularly, are described as owners of five shares in all. They are described as 'Europeans, residents of Bilaspur, mortgagees of the property of Durjan Singh and Bhag Singh, sons of Kunwar Singh, mortgagor. This property has been jointly mortgaged under mortgage deed for Rs. 6,288, dated the 21st of April 1847, along with that of Har Sahai and others. When the mortgagors shall pay the entire amount, the mortgage shall be redeemed.' Later on in this document under serial No. 5 of the khata a similar entry appears. We find from the endorsement, that this khewat was prepared with the consent of the proprietors and verified. There is also this endorsement upon it : To-day, all the proprietors verified this khewat in my presence and they raised no objection.' It thus appears that all the parties including the Skinner family verified the khewat and the entries in it, and admitted that the entries were correct. We further find from this khewat that members of the Skinner family held portion of mauza Tatarpur as proprietors. At serial No. 19 of the khata, Musammat Victoria, daughter of Mr. George Skinner, and others are described as owners of that khata in equal shares, and opposite serial No. 22 of the same khewat, Capt. Hercules Skinner and others are described as owners in equal shares of that khata, being vendee act the property of Munawar Ali, and Habib Ali, venders. Thus we gather from this khewat that not merely the members of the Skinner family held portion of the property as proprietors but also were entitled as mortgagees to other portions. In addition to this, in the khatauni of 1273 Fasli, corresponding to the years 1868 and 1869, we find an entry containing particulars of the mortgage corresponding with the entry in the khewat to which we have already referred. in it (opposite to serial No. 6) Musammat Victoria and other members of the Skinner family are described as mortgagees of the property of Durjan Singh and Bhag Singh, sons of Kunwar Singh mortgagor, deceased, and it is stated that the property has been jointly mortgaged under a mortgage-deed, dated 21st of April 1847, to secure Rs. 6,288 along with the property of Har Sahai and then there is this entry that when the mortgagors shall pay the entire amount the mortgage shall be redeemed.' In this document as serial No. 11, Musammat Victoria and other members of the Skinner family are shown as owners in equal shares of certain portion of the property to which the khatauni has reference and they are represented as owning that property under a decree against one Hasina. Again at serial Nos. 14, 19, 23 and subsequent numbers, the mortgage of the 21st of April 1847, is referred to, and in serial Nos. 158, 159 'and other numbers some of the members of the family are described as owners being vendees of the property of Munawar Ali and Wasiat Ali, vendors. From this document also it is evident that the members of this family acquired portion of the property by sale in addition to the property which they held as mortgagees.

3. It is said that these entries were made by the Settlement Officer in excess of his authority and a great part of the argument addressed to us has been devoted to this question. The settlements in question were prepared when Regulation No. VII of 1822 was in force, and we have to see whether in view of the provisions of that Regulation the Settlement Officer had authority to give the particulars to which exception is taken by the learned Counsel for the appellants. The language of this Regulation is extremely wide. In the section which deals with the duties of Collectors and other officers exorcising the powers given by the Regulation (namely Section 9), we find the following direction: 'The proceedings shall embrace the formation of as accurate a record as possible of all local usages connected with landed tenures, as full as practicable a specification of all the persons enjoying possession and property of the soil or vested with any heritable or transferable interest in the land or the rents of it, care being taken to distinguish the different modes of possession and property, and the real nature and extent of the interest held, more especially where several persons may hold interest in the same subject-matter of different kinds or degrees,' and later on. in that section there is a direction that ' the information collected on the above points shall be so arranged and recorded as to admit of an immediate reference hereafter by the Courts of Judicature.' This last mentioned direction leads us to think that the information which was directed in the earlier portion of the section to be collected was intended to be utilised in the Courts of Justice in determining the rights of litigants before them. It appears to us that in view of the wide language used in this section we cannot hold that the entries (to which we have referred) in the khewats and khataunis are not admissible in evidence in proof of the relations existing between the Skinner family and the plaintiffs. The officers exercising the powers conferred by the Regulation were directed to ascertain the real nature and extent of the interests held, more especially where several persons may hold interests in the same subject-matter of different kinds or degrees.' These words seem to us peculiarly applicable to the case of mortgagors and mortgagees whose interests in property are of different kinds or degrees. Therefore, we think that the evidence afforded by these documents is good secondary evidence of the matters sought to be established in this case. Read in conjunction with Section 35 of the Evidence Act, we think that the Court below properly admitted them in evidence.

4. But the case does not rest on these entries alone. We have a wajib-ul-arz of the year 1303 Fasli, corresponding to the year 1896 A.D., in which the mortgage in question is mentioned. In that wajib-ul-arz in the paragraph which treats of the custom prevailing as to division of profits we find the following statement: 'lands Nos. 9, 8, 7, 5 and 2 have, since the 21st of April 1847, been in the possession of Mr. Robert Skinner and others, the mortgagees by virtue of a mortgage,' and later on the joint mal and siwai items in respect of the property held by a single proprietor are collected, by the single proprietor, in respect of the property held by co-sharers who are joint in food and business, by the head of the family, in respect of the mortgaged property, by the servant of Mr. Robert Skinner and others, the mortgagees, and in respect of the partitioned property by all the co-sharers.' This wajib-ul-arz was duly attested on the 16th of June 1897. We may also refer to the khewat of the village of Tatarpur for the year 1303 Fasli. In that khewat we find members of the Skinner family described as sharers in the village and in the 6th column they are thus described : sons and daughters of Mr. Stewart Skinner alias Nawab Mirza, Europeans, residents of Meerut, mortgagees.' Later on, opposite serial No. 5, Change and Sumera, sons of Gulab Khazan, son of Lakhan, are described as 'mortgagors to Mr. Robert Skinner alias Sardar Mirza and others, entered in khata No. 2, mortgagees.' Now this wajib-ul-arz was prepared under the provisions of the Land Revenue Act of 1873, Act XIX of the year, and any entry contained in it would be prima facie evidence of its accuracy. Section 91 of that Act provides that all entries on the record so made and attested shall be presumed to be true until the contrary is proved.' Even, therefore, if the earlier khewat to which we have referred, were not good prima facie evidence of the mortgage in question, we think that the later khewat for the year 1896 would in the absence of evidence to the contrary, establish the fact that the Skinner family were mortgagees of the property in suit. We find similar entries in the closing khewat for the year 1310 Fasli, corresponding to the year 1903. * * *

5. Having regard to all this evidence we think that the decree of the Court below was right and we, therefor, dismiss the appeal with costs, including fees in this Court on the higher scale.


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