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Mt. Kunjlas Kunwar and ors. Vs. Krishna Deo Singh and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtAllahabad
Decided On
Reported inAIR1940All121
AppellantMt. Kunjlas Kunwar and ors.
RespondentKrishna Deo Singh and ors.
Excerpt:
- - 58 of 1861 was based is not available as like many other documents prior to the mutiny of 1857 it has been lost. the note clearly related to ramaipur. 58 of 1861. learned counsel for the plaintiffs-respondents has failed to show us that there is anything on the record showing that the partition suit settled that the mortgage of 1854 should be limited to any particular portion of the 12 annas share in these nine villages. we hold that the plaintiffs have failed to prove that they have any right of redemption in the villages of taluka kotwa, and accordingly we allow the appeal in regard to taluqa kotwa. the first objection taken on behalf of the defence was that the ladies had failed to establish that they ever had any right or title to this property. if we assume that this was a.....bennet, j.1. this is a first appeal by mt. kunjlas kuer and 15 other defendants against a decree for redemption granted in favour of krishna deo singh and other plaintiffs by the learned civil judge of allahabad. the plaint set out that there was a usufructuary mortgage dated 25th february 1848 executed by badal singh, guardian and 'sarbarakar' of bharat singh minor, the mortgagor, in favour of mahadeo prasad and karanpuri goshain, mortgagees. the amount of the mortgage money was rs. 13,001. there was to be no interest but profit would go in lieu of interest and redemption might be made in jeth of any year. the mortgaged property was set out in sch. a of the plaint and had become altered by a partition to the property in sch. b. para. 3 of the plaint alleged that bharat singh only owned.....
Judgment:

Bennet, J.

1. This is a first appeal by Mt. Kunjlas Kuer and 15 other defendants against a decree for redemption granted in favour of Krishna Deo Singh and other plaintiffs by the learned Civil Judge of Allahabad. The plaint set out that there was a usufructuary mortgage dated 25th February 1848 executed by Badal Singh, guardian and 'sarbarakar' of Bharat Singh minor, the mortgagor, in favour of Mahadeo Prasad and Karanpuri Goshain, mortgagees. The amount of the mortgage money was Rs. 13,001. There was to be no interest but profit would go in lieu of interest and redemption might be made in Jeth of any year. The mortgaged property was set out in sch. A of the plaint and had become altered by a partition to the property in sch. B. Para. 3 of the plaint alleged that Bharat Singh only owned one-quarter of the property mortgaged and the remaining three-fourths was owned by Mt. Gulab Kuer and Uttam Kuer and with their consent the name of Bharat Singh was recorded for the entire property and that the mortgage had been made with the consent of these ladies. Para. 4 admitted that on 7th September 1861 the original mortgagees had sold their mortgagee rights to Thakur Sheopal Singh, ancestor of defendants 1 to 16, the present appellants. Para. 5 stated:

During the Mutiny in 1857, Bharath Singh turned a rebel. Accordingly his one-fourth share in the mortgaged property was sold at a public auction by the Government and the same was purchased by Sheopal Singh aforesaid. Thus Sheopal Singh remained a mortgagee to the extent of three-fourths only. Now defendants 1 to 16, the heirs and representatives of Sheopal Singh aforesaid, are, as mortgagees, in possession and occupation of three-fourths of the mortgaged property and only a sum of Rs. 9750-12-0 remains as proportionate mortgage money

2. The defence of the appellants is given on pp. 14 to 17. The original mortgage was admitted. It was claimed that the property in fact belonged to Bharat Singh and that Mt. Uttam Kuer and Mt. Gulab Kuer had no right or title therein. Para. 19 claimed that the entire property was confiscated to Government. Para. 22 claimed that of the Kotwa property out of 44 villages Sheopal Singh received one-fourth share as reward for his loyalty and as to the 16 mortgaged villages one-quarter share was confiscated and purchased by Sheopal Singh on 21st December 1868. Para. 23 admits that the Government had exempted in favour of Mt. Uttam Kuer and Mt. Gulab Kuer three-fourth share of taluqa Kotwa and there was this partition and out of 16 mortgaged villages, they got a five annas share in 9 villages and a share in Raipur. Para. 24 states as follows:

The rights which Uttam Kuer and Gulab Kuer acquired by exemption were, along with other property, sold at a public auction in execution of a decree of Lala Mahadeo Prasad and Mahant Karanpuri to which Uttam Kuer and Gulab Kuer were also parties and all the rights they had in the mortgaged property became extinguished, The said auction sale took place on 20th April 1877, and the property was purchased by Sheopal Singh. Thus, all the mortgagors' rights in the mortgaged property became extinct since the date of the purchase and Sheopal Singh and his heirs and representatives entered into adverse and proprietary possession and occupation of the aforesaid villages. The suit is barred by 12 years' limitation. Para. 26 stated. The claim is barred by Section 20, Act 9 of 1859.

3. Various issues were framed and the learned Judge in the trial Court has granted a decree for redemption of the property in schedule B on payment of Rs. 9,240 which is three fourths of the original mortgage consideration. The appellants have appealed against all portions of the decree.

4. We shall first of all take up the case of Kotwa taluqa which stands on a different ground from the other two taluqas, Chak Binda and Motiha as the claim of defendants was that although the Government had not confiscated a certain share of the ladies, that share had afterwards been put up to auction sale on another mortgage decree in Suit No. 58 of 1861 and had been purchased at auction sale by Sheopal Singh and it was claimed therefore that with that purchase in 1877 the ladies had no longer any right or title in taluqa Kotwa by which their descendants could obtain a decree for redemption in 10 villages which now represent the property in Kotwa.

5. The claim of the ladies to a share in the original property mortgaged will be considered later in connexion with the two other taluqas, but in connexion with Kotwa the defence is not based on a challenge of their claim but on the fact that Sheopal Singh is alleged to have purchased their rights at the auction sale in execution of a decree No. 58 of 1861. This portion of the case rests on the decree and sale in that case. The mortgage on which this decree in Suit No. 58 of 1861 was based is not available as like many other documents prior to the Mutiny of 1857 it has been lost. The first document on page 147 is an admission of the claim, filed by the pleader for the defendants Mt. Gulab Kuer and Mt. Uttam Kuer dated 6th April 1861. This sets out that a regular suit was brought against the ladies by Lala Mahadeo Prasad and mahant Karanpuri for Rs. 10,719-1-3 on account of the amount of a decree for mortgage money with reference to the decision of the sadar-us-sadur of 15th December 1855 against a 1 anna 9 pie zamindari share in 44 villages in the taluqa of Kotwa and with reference to the agreement executed by the defendants dated 20th June 1854. The document then admits that as alleged in the plaint, the claim aforesaid was rightly recoverable

from the persons of the defendants aforesaid and 1 anna 6 pie zamindari share in 44 villages of taluqa aforesaid in possession of the defendants, mortgaged and hypothecated under the bond on the basis of which the decree was passed as specified in the agreement aforesaid.

6. On pages 149 and 150 there is the decree in Suit No. 58 of 1861 passed on this admission of claim. This decree states:

Suit for recovery of Rs. 10,719-1-3, the amount of decree obtained on the mortgage in our favour, the decision of the Sadar-us-Sadur dated 15th December 1855, on the basis of the registered mortgage deed for Rs. 4999-8-0 principal, dated 14th January 1854, executed by Bharath Singh debtor under the conditional mortgage of a 1 anna 9 pie zamindari share in 44 villages of taluqa Kotwa, pargana Juhsi, by means of sale, by auction of a 1 anna 3 pie share free from confiscation by Government, mortgaged and hypothecated under the bond on the basis of which the decree aforesaid was passed, the terms of the agreement executed by the defendants aforesaid, dated and registered on 20th June 1854.... The defendants filed an admission of claim through their pleader. It was, therefore, ordered that a decree be passed in favour of the plaintiffs against the defendants and the aforesaid property, which is in their possession, for the amount claimed together with costs and interest in the terms of the compromise.

7. This document makes the matter somewhat clearer and it appears that Bharath Singh had originally executed a mortgage by conditional sale dated 14th January 1854, in favour of Mahadeo Prasad and Mahant Karanpuri and on that a decree had been obtained against him on 16th December 1855. Subsequently there was the Mutiny in 1857 and Bharat Singh was convicted as a rebel and his property was forfeited. Apparently under these circumstances the mortgagees thought it necessary to proceed against the ladies and they based their claim against the ladies on a document which was produced in that record and has been obtained by us from that record. In the Court below a certified copy of this document was filed and is printed on pp. 91 to 93. This document is headed a deed of agreement but it is executed by one person only, Debi Prasad, general attorney of Mt. Gulab Kuer and Uttam Kuer. The document on page 92 from the top of the page sets out the usufructuary mortgage for Rs. 13,001 on 16 villages in taluqa Kotwa, etc., which is the subject of the present suit dated 25th February 1848. The document states that for a further payment to creditors another sum was borrowed and a document mortgaging the remaining 44 villages of taluqa Kotwa and certain other property described as Binda and Hakim Patti was executed on behalf of Bharat Singh on 14th January 1854:

Having regard to the fact that the property is held jointly by cosharers, the mortgagees aforesaid hesitate in causing mutation of names to be effected.

8. The beginning of the document has set out that the two ladies have a share in this property. The document proceeds:

We therefore of our own accord and free will do covenant and give in writing that the entire amount of mortgage payable under the two documents aforesaid is a charge on the entire zamindari (paper torn) mortgaged under the mortgage deeds and on the persons of Bharat Singh and the executants.... After payment of the amount of mortgage, etc., due to the mortgagees, we shall with mutual consent or in any way possible (paper torn) have our names recorded against our respective shares in the 1 anna 9 pie share purchased at auction in this way that the name of Bharat Singh shall be recorded against 3 pies, and against the 1 anna share, me, Gulab Kuer against (paper torn) and the name of Uttam Kuer against the 6 pie share. The terms of the mortgage transaction (paper torn) are and shall be admitted and accepted. I have therefore executed this deed of agreement on behalf of Mt. Gulab Kuer and Uttam Kuer by virtue of the power of attorney in my favour, registered on 7th April 1854, so that it may serve as evidence.

9. Although the decree was passed on 10th April 1861, proceedings in execution were spread over a considerable period. Meanwhile on 30th August 1866, the Board of Revenue had passed a final order on p. 179 as follows:

In supersession of orders No. 385, dated 15th August 1866, Board direct that a 6 pie share of Badul and Bharat in the sixteen villages is to be held confiscated and the names of the two female relatives are to be recorded as owners of the 1 anna 6 pie share in the Talooka.

10. It is clear from this order therefore that the ladies were recorded before the partition as owners of 1 anna 6 pie share in the whole of taluqa Kotwa. On pp. 219 to 222 there is a 'rubkar' in execution of the decree in Suit No. 58 of 1861. The final order is that the application for execution was allowed for a sum of Rs. 6628-12-0. On pp. 186 to 189 there is a document dated 6th March 1877, which is the notice of sale of mauza Ramaipur and other villages in taluqa Kotwa and the sale was fixed for 20th April 1877. The notice states that

this sale shall relate only to the rights and interests of Dilas Kuer and other judgment-debtors to the property specified as given below.

11. In col. 1 there are the names of different mauzas and in col. 2 there is the amount of share and in the third 'jama' (revenue). This is headed: 'Name and Government 'jama' of the mahal or part of the mahal to be sold by auction....' There is no doubt that it is in this column for the amount of share that the notice states what share is to be sold. The contention for the plaintiffs is that the share to be sold was only 7 annas. If that had been so, the figures '7 annas' would have appeared in col. 2 and not in the figures '12 annas.' The plaintiffs rely on a note in the last column which is headed: 'Detail of share or crop of each judgment-debtor mentioned by the decree-holder in his application.' Apparently this column is intended for specification of how the different judgment-debtors hold the total share which is entered as the share to be sold in col. 2 and it is not to this last column that a purchaser looks to find the property which is to be sold. Opposite the first village Ramaipur there is a note as follows:

This mauza Ramaipur is in possession of Sheopal Singh by virtue of mortgage. The former mortgaged share 5 annas and the share mortgaged with conditional sale 7 annas. Whatever rights and interests of defendants are in this should be sold by auction.

12. The next village mauza Katwarupur has a note as follows:

In mauza Katwarupur a 5 annas each is in possession of Sheopal Singh by virtue of mortgage and the rest in possession of defendants. The rights and interests of the defendants should be sold by auction.

13. The subsequent villages in this list have a similar note down as far as mauza Shahbaz, that is the last of the 12 annas share villages and the other villages have a note that the rights and interests of the defendants should be sold by auction. The argument for the plaintiffs is that so far as Ramaipur is concerned, the mention is made in this last column that the mortgage with conditional sale was seven annas and therefore the argument is that this note should be read as applying to all the other villages and that only seven annas was to be sold according to this notice. We cannot accept that view. The note clearly related to Ramaipur. The note does not say that seven annas is to be sold. It is true that the note does mention the mortgage with conditional sale as seven annas but that is all. A fair construction of this document certainly is that what was notified for sale was 12 annas of all the villages Ramaipur to Shahbaz and these are the nine villages on p. 8 in which redemption is claimed of a five anna share and the remaining village Raipur is one anna six pies the whole of which was to be sold according to this notice of sale.

14. On page 223 there is an order of the Court of the sale officer dated 19th April 1877 to the effect that the report of the sadar kanungo showed that there was a difference between the notice and the pattidari statement as regards amount of share and jama and a copy of the report was sent to the Subordinate Judge for instructions. On p. 225 the pleader for the decree-holder asked that the entire rights and interest of the judgment-debtors may be sold by auction with reference to the correct share and 'jama' of the defendants. This reply of the pleader was forwarded by the Court. On p. 224 the sale officer notes that this reply was received after conclusion of the sale by auction of the property. The fact that this was received after the conclusion of the sale is also mentioned on p. 227, line 11. Learned counsel pointed out that the report of the sadar kanungo in question is given as a record of the pattidari statement on pages 243 and 245. These nine villages are shown beginning with Lurhwa on p. 243 and continuing to p. 245. There is however no real difference in regard to the shares of the judgment-debtors which are shown on pp. 241 and 242 as annas 12, and in the pattidari statement on pp. 243 to 245 in the margin also as annas 12 for these nine villages. The matter therefore is of no importance. It is admitted for the plaintiffs-respondents that no objection was taken by the ladies to the sale notice or at the time of sale. On pp. 226 to 228 there is a 'rubkar' of the sale officer of the date of sale, 20th April 1877 and in that he sets out that the property sold was 12 annas share in these nine villages and one anna six pies in Raipur and he states that the sale was concluded for Rs. 1905 in the name of Sheopal Singh. There was an objection dated 19th May 1877, made by the judgment-debtors which is in a typed book, pp. 8 and 9. In this they objected to the amount of Rs. 1900 realized at the sale and claimed that it should be Rs. 30,000 and they objected to the want of beat of drum in all but four villages and to the fact that some objection of theirs was not decided before attachment was made. They do not state in this objection any objection to the amount of property sold which was entered as 12 annas in the 'rubkar' of the sale officer and in the notice of sale. On p. 229, line 38, the 'rubkar' of the Civil Court states:

This day when the defendants made a relinquishment the objection of the defendants was rejected and an order was passed for confirmation of the sale. It is therefore ordered that the sale in this case, dated 20th April 1877, be confirmed.

15. The date of this order is 21st July 1877. In accordance with this order a sale certificate dated 12th November 1877 was drawn up in favour of Sheopal Singh which is printed on pp. 237 to 239. That document sets out the nine villages 12 annas shares and Raipur one anna six pies share as the amount of share sold and states in the remarks column 'in this the rights and interests of the defendants were sold.' Learned counsel for plaintiffs-respondents argued that some weight should be attached to these words but we consider that these words are of an ordinary nature and their entry is a mere matter of routine. It is not to be denied for the plaintiffs that the ladies had the right and title to the entire 12 annas and therefore the expression cannot be taken to mean that a less amount than 12 annas was sold. The 'rubkar' beginning at p. 240 was sent for mutation in favour of Sheopal Singh as is shown by the order on p. 246, line 4. In this matter the defendants-appellants rely on a ruling of their Lordships of the Privy Council in Ramabhadra Naidu v. Kadiriyasami Naicker (1922) 9 AIR PC 252, where on p. 489 their Lordships state:

Certificates of sale are documents of title which are not to be lightly regarded or loosely construed. There is full opportunity for challenge of all proceedings in the execution of mortgage decrees at the time, and except in clear cases a purchaser ought not to be harassed in his possession by disputes arising years after his purchase.

16. Learned counsel for the plaintiffs-respondents relies on the following documents for his case that only seven annas out of the 12 annas was sold by this auction sale. Ex. 58 on pp. 231 to 233 is a simple mortgage deed by Sheopal Singh and his son, Ajodhya Prasad Singh, dated 10th November 1877. This sets out:

For the satisfaction of the said creditor we have, in order to secure payment of the amount due under this bond, pledged, hypothecated and mortgaged in taluka Kotwa, pargana Jhusi the shares of Uttam Kuer and Gulab Kuer which I, Sheopal Singh, purchased at an auction sale held on 20th April 1877 and execute this simple mortgage to secure the loan hereunder borrowed.

17. In the table on p. 232 there are the nine villages in which there was a 12 annas share sold shown as being now mortgaged by the purchaser to the extent of 7 annas. The argument is made that because he was now mortgaging 7 annas therefore it must be assumed that he had only purchased 7 annas. This argument is not logical because if a man purchased 12 annas, he is not compelled to mortgage the whole of that amount specially as the mortgage in question was for a small amount of Rs. 1145. There is nothing in the document which states that the whole of the share which had been purchased at the auction sale was being mortgaged. Reference is only made to the auction sale to show what was the title of the mortgagors. Similar remarks apply to the simple mortgage deed also executed by Sheopal Singh and his son on 10th November 1877, to the same mortgagees printed on pp. 234 to 236.

18. Another line of argument was taken by learned Counsel for the plaintiffs-respondents to the effect that it would have been incorrect to put up for sale 12 annas of these nine villages because that 12 annas was not all responsible for the mortgage and that only the amount responsible for the mortgage should have been put up or would have been put up for sale. The facts that are basis of this argument are as follows: On p. 92 there is set out the usufructuary mortgage of 16 villages in taluqa Kotwa and then the words are used 'thereupon a document mortgaging the remaining 44 villages of taluqa Kotwa,' etc. was executed on 14th January 1854. This no doubt recites that the 44 villages in the mortgage of 1854 were none of them the same as the 16 villages in the usufructuary mortgage. The matter was certainly not made clear in the decree in Suit No. 58 of 1861 which merely says that there was to be a sale by auction of the share of 1 anna 3 pies 'in 44 villages of taluqa Kotwa.' It was not stated which were the 44 villages. Now learned Counsel refers in detail to the partition proceedings in 1873-75. On p. 204 there is a partition agreement between the parties to that partition of whom No. 31 is Uttam Kuer, wife of Mohan Singh. Number 32 is Dilas Kuer, wife, and 33 Krishna Deo Singh, son, of Amar Bahadur Singh. This Uttam Kuer was not to be confused with Uttam Kuer No. 14. The share of these ladies, Krishna Deo Singh, and Sheopal Singh is shown in the list as a two annas share on p. 206. Sixty villages of taluqa Kotwa were divided into class I 37 villages, which were called 'uparwar' villages, that is villages on high ground and class II villages 'kachhar' or low ground villages, that is villages liable to alluvial action. In class I there were six more villages added by agreement on p. 208. All the nine villages with which we are concerned were thus added in class I which was brought up to the total of 43 villages and it was provided in regard to these 43 villages that there would be division by entire villages among the eight groups of share-holders shown on p. 206. The other villages were to be divided up by pattis in each village which is called 'bong bat'. On p. 212 lot No. 5 was given to Mohim Singh, husband and 'karpardaz' of Mt. Uttam Kuer zamindar for the proprietors of patti Badal Singh and it is this lot No. 5 with which we are concerned. A document which has not been printed but of which a translation has been made Ex. 42, shows that these nine villages comprised lot No. 5 and it is admitted that in these nine villages as shown on pp. 243 to 245 Sheopal Singh was entered for four annas and the ladies and Krishna Deo Singh for 12 annas. On p. 216 the ladies made an application as follows:

It is submitted that Sheopal Singh is the zamindar of 16 villages in the 'ilaqa' of the applicants. Now 15 villages held as mortgagee and 28 villages of the applicants' 'ilaqa' have been taken (?) together (?) and partition has been effected with reference to 'gaunbat' and lots have been formed. Out of 43 villages a lot of 9 villages has fallen to the share of the applicants with reference to the lots. Out of 16 villages possession over one village, viz. Balrampur, has been continued as before and two villages out of those held as mortgagee have been continued as before, i.e. possession has been maintained over the villages of Lurhwa and Chak Karim alias Khanipur. Accordingly with the exception of the villages of Ramaipur and Katwarpur and after taking out all the villages of Balrampur, Lurhwa and Chak Karim alias Khanipur, with reference to the lots, the arbitrators may separate the other villages from the applicants' 'gaunbat,' to which applicants shall have no objection.

19. It is claimed on behalf of the plaintiffs-respondents that the 43 villages which went to form the 16 annas of the nine villages came actually from 15 villages which were subject of the usufructuary mortgage of 1848 and 28 villages which were not but which were subject to the 1854 mortgage. The argument therefore is that as only 28 of the 43 villages were subject to the 1854 mortgage, the whole of the 12 annas in the nine villages should not have, been sold in execution of the decree on the 1854 mortgage. The mortgagees of the 1854 mortgage, Mahadeo Prasad and Sheopuri Goshain, are shown on p. 149 as residents of the city of Allahabad, and they were not in possession of the shares mortgaged, nor were they parties to the partition suit. The suit was in 1873 to 1875 and the rights of these mortgagees had previously merged in 1861 in the decree which they obtained in Suit No. 58 of 1861. Learned counsel for the plaintiffs-respondents has failed to show us that there is anything on the record showing that the partition suit settled that the mortgage of 1854 should be limited to any particular portion of the 12 annas share in these nine villages. That suit did not deal with this question at all, nor could it deal with it in the absence of the mortgagees. Learned counsel argues that in the 'agreement' or declaration of 20th June 1854, by the attorney of the ladies the 44 villages of the 1854 mortgage are said to be separate from the 16 villages of the usufructuary mortgage, and the partition settled that 5 annas of the 12 annas in the nine villages was under the usufructuary mortgage, therefore the balance of the 12 annas, that is 7 annas, should be held to be under the 1854 mortgage, because the principle of keeping them separate should still prevail. It will be noted that the only mention of 7 annas mortgage was for a single village Ramaipur in the column of detail of shares in the notice of sale on p. 186, and for that and the other villages the share for sale in col. 2 was shown as 12 annas.

20. Of the nine villages shown with 5 annas shares usufructuarily mortgaged in Kotwa after partition in list B of the plaint, p. 8, only two appear in the list of villages in the original usufructuary mortgage list A on p. 6. These two are Chak Karim, also known as Khanipur, No. 21, p. 8 and No. 26, p. 6, and Lorhua, No. 22, page 8, No. 27, page 6. The other seven villages on page 8, No. 17 Ramaipur, No. 18 Katwarpur, No. 19 Sarai Chachak, No. 20 Deokali, No. 23 Todarpur, No. 24 Zarait Shahbaz and No. 25 Zarait Suthan do not appear on p. 6 for Kotwa, and therefore they were not subject to the original usufructuary mortgage but, if we accept page 92 line 9 as correct, were subject to the mortgage of 1854. Mahadeo Prasad, etc. the decree-holders in Suit No. 58 of 1861 would find that in Kotwa taluqa the judgment-debtors, who had originally 1 anna 6 pies out of 2 annas, that is three-fourths of the family share in these seven villages, had after partition been entered for 12 annas out of 16 annas, also three-fourths of the family share (the remaining 4 annas being held by Sheopal Singh, a relative who had obtained it by purchase at confiscation sale). The natural conclusion of the decree-holders would be that as the three-fourths share had been subject to their 1854 mortgage, so the three-fourths share after partition should be subject to the mortgage decree. The judgment-debtors did not make any objection before or after the sale to this sale of the whole 12 annas.

21. Whether there was some error in the shares sold in 1877 is a matter which cannot be questioned now after all these years. The mere fact that Sheopal Singh, the purchaser, was a usufructuary mortgagee does not in our opinion entitle the plaintiffs to re-open the question, in this suit of 1933. The matter is long ago time barred. We hold that the plaintiffs have failed to prove that they have any right of redemption in the villages of Taluka Kotwa, and accordingly we allow the appeal in regard to Taluqa Kotwa.

22. We now turn to the case in regard to the other two taluqas which are shown in the plaint as Taluqa Chak Binda, 12 villages, 2 annas share, and Taluqa Motiha, 4 villages, 1 anna share In each case the claim is for redemption of 3/4ths of these amounts i.e. 1 anna 6 pies for taluqa Chak Binda and 9 pies for Taluqa Motiha. The first objection taken on behalf of the defence was that the ladies had failed to establish that they ever had any right or title to this property. The right and title of the ladies is based on this document of which a copy is printed on pp. 91 to 93 and of which we have obtained the original. If we assume that this was a genuine document executed as it purports to have been executed on 20th June 1854 and registered on that date there are still some difficult questions on which the plaintiffs have failed to satisfy us. The first point is that this document is not any sort of agreement although it is headed 'agreement.' The document is executed by Debi Prasad who describes himself as general attorney of Mt. Gulab Kunwar and Uttam Kunwar and on their behalf he puts forward an allegation that the ladies owned one anna share in the case of Gulab Kunwar and 6 pies share in the case of Uttam Kunwar and that Bharat Singh only owned 3 pies share. The pedigree of this family is given in the judgment of the lower Appellate Court on p. 29 as follows:

ABDHUT SINGH

_____________________|_______________________

| |

Pacha Singh Maharaj Singh

________|__________ ______________|________

| | | |

Sheo Din Singh Sheo Ratan Singh Badal Singh Rachhpal Singh

| ____________________________|______ |

Amar Bahadur Singh | | | Mohim Singh

=Gulab Kuar Chandan Singh Bharat Singh Himat Bahadur Singh =Uttam Kuar

=Dilas Kuar | | |

| Shiam Singh | Sheo Pratap Singh

| _____________________________________|_______

Krishna Deo Singh | | | |

Plaintiff 1. Shakar Bhagwant Singh Jaddu Singh Jagdeo Singh

23. Now it is clear from this pedigree that these two ladies Gulab Kunwar and Uttam Kunwar could never have had any right or title in 1848 or in 1854 or at any period to the property of the family. The husbands of both these ladies were alive at the time in 1848 and Amar Bahadur Singh, husband of Gulab Kunwar, has a son Krishna Deo Singh, plaintiff 1, who is still alive and the husband of Uttam Kunwar had a son Sheo Pratap Singh. Although the mortgage deed of 1848 was in the name of Bharat Singh, minor, alone under his father Badal Singh as guardian, the document sets out on page 91 the method in which the document on p. 91 derived a title for these two ladies under these difficult circumstances is as follows:

The zamindari property of Amar Bahadur Singh, Sheo Ratan Singh and Rachhpal Singh in the taluqas aforesaid was, in consultation with the executants and Mt. Basant Kuer, mother and guardian of Bharat Singh minor, all of whom were the cosharers in possession of the property purchased in the name of the minor aforesaid at an auction sale held in execution of a decree. The sale proceeds were deposited after borrowing the same from Lala Manohar Lal Mahajan, resident of Rani Mandi, in the City of Allahabad with mutual consent. It was agreed upon that all should jointly pay the prior debt payable by the ancestors and the sale proceeds recently borrowed due to the creditor by mortgaging zamindari property in the 'ilaqas' aforesaid and that after the debt has been paid and the 'ilaqa' is released each cosharer should have her name recorded in the public registers with reference to her old share and enter into possession.

24. To support these allegations no documents are produced. The allegations appear to be that there was a borrowing from Lala Manohar Lal in the name of the ladies and the minor. It is not alleged in this document that the ladies had any property with which the auction purchase could be made. It was merely alleged that the money was borrowed in their names and there is nothing whatever to confirm the allegation. Moreover on p. 92, line 10 it is admitted that there was a further deed of mortgage on 14th January 1854 and this again was in the name of Bharat Singh alone. Now this document (the agreement) was produced for the first time in suit No. 58 of 1861 and by that time the Mutiny had taken place in 1857 and the property of Bharat Singh and other members of the family had been confiscated. The ladies had therefore put forward a claim that they were the owners of the property. It is under these doubtful circumstances that this ingenious claim is made unsupported by any document to show that the ladies had borrowed any money from Lala Manohar Lal. We are unable to accept that the statement of Debi Prasad, the general attorney of the ladies, does give them any right or title to the property in question. This finding would be sufficient alone for the dismissal of the plaintiff's suit for redemption of the property mortgaged in taluqas Chak Bhinda and Motiha in the name of Bharat Singh in 1848.

25. Assuming that the plaintiffs had overcome this difficulty the next point taken by the defence is that the property even if it had belonged to the ladies was treated by the authorities as the property of Bharat and was all confiscated and sold in the proceedings after the Mutiny. On p. 97 there is an order of the Court of committal to Sessions, dated 28th May 1858, of Bharat Singh and other members of the family, his father Badal Singh and Amar Bahadur Singh, husband of Mt. Gulab Kunwar and Rachhpal Singh. The Sessions case is noted as decided on 13th December 1861. On pp. 342 to 145 there is a rubkar of Mr. Nazir Ali Khan, Deputy Collector, exercising the powers of a Magistrate dated 29th April 1860, and he sets out that the 7 accused persons including Bharat Singh, Badal Singh, Amar Bahadur Singh and Rachhpal Singh had been submitted to the Court of the Special Commissioner for passing an order confiscating their property as they were ringleaders. A table of the different accused and their shares follows and it is stated that in regard to accused No. 3 Bharat Singh he appeared on 14th January 1859 after the expiry of the period allowed in the Queen's Proclamation. The zamindari property was attached under general orders dated 20th February 1858 and 29th April 1858 passed in this case. 'This should be entered in the statement showing the property confiscated.' The order follows on page 145 to the effect that

the rubkar should be put up before the Magistrate for two purposes (1) the zamindari property of No. 3 Bharat Singh...be entered in the statement showing confiscated property.

26. On page 193 there is a statement dated 15th July 1870 of the confiscated property of the rebels and it shows taluka Motiha four mahals. It states that Badal Singh had 3 pies which was confiscated by order of Mr. Mayne, Special Commissioner, dated 20th February 1858 and of this amount Mahadeo and Mahanth Karanpuri were mortgagees and that the zamindari rights should be sold. The next entry is similar, for Bharat Singh 6 pies. And for Amar Bahadur 3 pies which was shown as confiscated and granted to a loyalist Asapal Singh, but this 3 pies was not mortgaged. There was therefore 9 pies in taluka Motiha which was confiscated with the direction 'it should be sold.'

27. On page 271 there is an extract from the list of villages confiscated which refers to Bharat Singh and Badal Singh as the owner of 3 annas share in Binda and Chak Moqim which was confiscated under various orders of 20th February and 29th April 1858 and 6th June 1860. There was also another one anna shown for Bharat Singh mortgagor which was in possession of Mahadeo and Mahanth Karanpuri, mortgagees in Chak Binda and Chak Moqim, Urna and others 12 villages, and further a one anna in the same villages in taluka Chak Binda also with Bharat Singh and Badal Singh, mortgagors, and Mahadeo and Mahanth Karanpuri as mortgagees. These entries undoubtedly relate to the villages which were usufructuarily mortgaged in taluka Chak Binda and the entry of confiscation shows that the rights shown for the mortgagors were confiscated in the whole of the 2 annas claimed on p. 5 of the plaint. We therefore find that both in taluka Chak Binda and in taluka Motiha there was the confiscation of the property of the mortgagors. Now it is true that various objections were made to the attachment by the ladies. On pp. 98 and 99 there are two applications by one Gur Datt Chaube who was put down as the employee of Gulab Kunwar in the first case and in the second he apparently applies on behalf of the lady whose husband was Mohim Singh, i.e. Mt. Uttam Kunwar. The petitions were both made on 3rd July 1858 and the petitions asked that one anna of Mt. Gulab Kunwar in taluka Kutua and taluka Chak Binda should be released and also Motiha. The other petition does not mention a share. On pp. 102 and 106 there is the order of the Court dated 8th July 1858. The order is very brief:

Let 'parwanas' be issued to the tahsildars of Sikandara and Kiwai for release of the property of the defendants.

28. Learned counsel for plaintiffs-respondents contends that this order was passed on these applications. He also claims that it was passed on the merits of the claims of these ladies after an inquiry. The order was passed five days after the applications were made. We consider that this was an interim order of release from attachment without any inquiry passed merely on the allegations that were contained in the applications. There were parwanas issued by the Court to various tahsildars on pp. 100, 101, 103, 104 and 105. The Tahsildars made various replies. On p. 109 the tahsildar of Kiwai and Mah reported that there was no property of the ladies attached in that tahsil. This tahsil contains talukas Chak Binda and Motiha as is shown on p. 5 of the plaint.

29. The history of these taluqas must be distinguished from the history of taluqa Kotwa in which the tahsildar's report on p. 107 of 12th July 1858 was that although Bharat Singh and Badal Singh were recorded in the pattidari register of zamindars and Uttam Kuar was not recorded in that register, still in the register of revenue the name of Uttam Kuar was recorded as manager of one anna, and a similar report was made in regard to Gulab Kuar as manager of 2 annas on p. 110 in taluqa Kotwa, and the matter is mentioned in another report on p. 112 of 19th January 1859 which states that the 2 annas was released to Gulab Kuar and the one anna was released to Uttam Kuar in accordance with the order of the Court of 2nd August 1858. It is to be noted that there was no such release in the taluqas of Chak Binda and the Motiha. On p. 147 there is an order of the Court dated 8th August 1860 in the file of mauza Motiha to the effect that the properties of Bharat Singh, Badal Singh and Amar Bahadur Singh had been confiscated by the Government under order of the Magistrate dated 2nd June 1860 and of the Collector dated 6th June 1860. The order of the Magistrate is that printed on p. 142. This order doubtless was passed in regard to all the villages in Chak Binda taluqa and Motiha taluqa. On p. 274 there is an order for mutation in the name of the Crown for all the villages of Chak Binda taluqa to the extent of one anna, the entry being:

Queen Empress, mortgagor Mahadeo, son of Kandhai Lal, and Mahanth Karanpuri, disciple of Niranjanpuri, mortgagees in possession.

30. On p. 280 there is a similar order in the register of mutation for Motiha mauza opposite two entries of 3 pies for Bharat Singh and one entry of 3 pies for Badal Singh. There was also in Motiha a mutation on pp. 278 and 279 of 3 pies which had been in the name of Gulzari Singh, son of Bhagwan Singh, and this was mutated in the name of the Queen Empress on the ground of confiscation. It is true that there is not the entry of the usufructuary mortgage for this 3 pies share. On pp. 282 and 283 there is also another entry for Binda and Chak Moqim on dispossession of Bharat Singh from a 3 annas share of confiscation but this was not shown as mortgaged property. From 1860 to 1863 the confiscated property in these two taluqas remained under direct management of the Crown in the contrast to taluqa Kotwa in which a share of 3 annas had been released to the management of the ladies. On pp. 200 and 201 there is an entry of a Government order of 24th October 1863 which grants permission for the sale of this confiscated property in Chak Binda and mortgage is mentioned. On p. 180 there is the list of sale for these two taluqas, the property to be sold on 20th September 1864, the amount to be sold being 2 annas in Chak Binda and 9 pies in Motiha both under the usufructuary mortgage. On p. 160 there is an enquiry by the Court from the tahsildar of Kiwai as to the amount of share and revenue in the property confiscated by Government and whether the name of the rebel or of the Government was recorded against the confiscated share and other points. The reply of the tahsildar dated 12th March 1864 is on page 161 in regard to Chak Binda. He states that the name of the Government was recorded against a 2 annas share bearing a revenue of Rs. 586 and that Sheopal Singh mortgagee was in possession. On p. 162 there is a petition by the two ladies dated 20th July 1864 in regard to all three taluqas in which they state that only the name of Bharat Singh was recorded but that the ladies got their names recorded for. 44 villages in taluqa Kotwa and got that taluqa property released on 22nd August 1858, but that they did not get possession of Chak Binda or Motiha taluqas. They asked that they should be given relief by release of the shares they claimed in all three taluqas and that only the remaining share of Bharat Singh should be sold by auction. On page 163 the report of the tahsildar dated 27th July 1864 in regard to Chak Binda states:

The applicant wants the release of the confiscated share of Bharat Singh rebel, which has been advertized for sale and has been granted for loyalty, alleging it to be her share. The share of Bharat Singh was forfeited under order of Mr. Mayne, Special Commissioner, dated 20th February 1858 and this confiscation was sanctioned by Government. The prayer of the applicant for release of the share aforesaid is, therefore, groundless. Report is submitted. Necessary orders may be passed.

31. On page 164 there is the second application made by the ladies by way of a petition dated 10th September 1864 to the Board of Revenue. The application is in regard to all three taluqas. On page 268 there is the order of the Board of Revenue on 17th September 1864 referring the matter to the Collector. The reply of the Collector dated 19th September 1864 is on page 159 and is as follows:

In reply to your docket No. 434 dated 17th instant, regarding a petition by Mt. Golab Konwar and Ootim Koonwar I have the honour to report that their names are not shown in the malgoozaree registers as zamindars of talookas Mothea and Chuk Binda.

2. The recorded proprietors are Badal Singh and Bharat Singh whose proprietary rights were confiscated in 1857. Since confiscation, Government has been the recorded proprietor.

3. The petitioners are the wives of two notorious absconders, cousins to each other, and nephews of Badal who is father of Bharat Singh.

4. The petitioners declare that they purchased the zamindaree they now claim seven or eight years before the rebellion, from Ummur Bahadur and Ruchpal Singh, or in other words they purchased the property of the husband of one and the father-in-law of the other, but that it was recorded fictitiously as the property of Bharat Singh.

5. Independently of the improbability of these statements, it must be noted that the petitioners have never advanced their claims in this Court, during the seven years that have elapsed since the confiscation of this zamindaree.

6. It is evidently a last attempt to save their husbands' former property from the final sale which will transfer it into new hands.

7. A family tree is attached to which reference is requested.

32. On page 160 at the top of the page there are the words: 'Board's order. Application rejected. 30. 9.' The appellant claimed that this is the order of the Board on the letter of the Collector on page 159. Mr. Banerji for the respondents-plaintiffs claims that this is not the order. His ground for saying so is that the certified copy filed of the order is on a separate piece of paper from the certified copy of the letter. If this was not the order, as the copies have been filed in the Court below, it was open to Mr. Banerji to have sent for the original document and have shown that some other order was passed and that the appellants were wrong in producing that order in the Court below as the order on the letter. No other order has been shown by Mr. Banerji, nor is it shown by him that the original does not contain the order. It is also to be noted that on the letter of the Collector it would not have been possible to pass any order to the contrary effect and that the most that the Board might have done would have been to make further enquiries.

33. On p. 168 there is the third petition of the ladies dated 19th September 1864 which was addressed to the Court asking that the sale fixed for the next day might be postponed and their rights safeguarded. Apparently this was in regard to all three taluqas as they signed in regard to those taluqas. On p. 167 the order of the Court on this petition was:

That this application be placed on the record and as a precautionary measure the auction-purchasers be informed of the contents of the application.

34. On p. 165 there is a petition of Sheopal Singh dated 19th September 1864. The order on this is on p. 167 and is, 'At the time of auction-sale the purchasers be informed of the contents of the application.' On p. 169 there is a robkar of the Collectorate dated 20th September 1864 setting out the sale of the two annas share in mauza Chak Binda bearing a revenue of Rs. 586 which was in possession of Sheopal Singh as mortgagee and the rejection of the petition of the ladies, and the letter from the Board of Revenue containing their petition to the Board, and that a reply was sent on 19th September 1864 (which is the letter on p. 159 of the Collector) and reference is also made to the third petition of the ladies and it was stated that the purchasers were informed of the particulars in the aforesaid applications. It was further stated that the sale went on for a long time and Sheopal Singh purchased the rights in taluqa Chak Binda for Rs. 2108. On p. 181 there is an extract from the list of confiscated property for sale by auction which shows this sale to Sheopal Singh of taluqa Chak Binda and also the sale to Sheopal Singh on the same date of taluqa Motiha for Rs. 550. On p. 171 there is an order of the Court informing the Tahsildar of Kiwai of these two sales. On the same date there is a report of the tahsildar dated 5th December 1864 stating that there was mutation by the removal of the name of Government and the entry of the name of Sheopal Singh, auction-purchaser. Sheopal Singh has been in possession of the shares of two annas in Chak Binda taluqa and nine pies of the share in Motiha taluqa for the period from the auction sale in 1864 up to the date of suit on 1st November 1933 which is a period of 69 years. The remaining three pies in Chak Binda appears to have been confiscated and granted to someone as is shown by the letter of the Collector on p. 159. Or it may be that the deed of the usufructuary mortgage was not originally for more than nine pies share in taluqa Motiha. It is to be noted that we have not got that mortgage deed before us or any copy of it. Be that as it may, it is clear that there never was any entry of these ladies for possession of any share of the property in Motiha which was the subject of the usufructuary mortgage and therefore the descendants of these ladies the plaintiffs cannot claim through them a right of redemption. The distinction between the history of these two taluqas and the history of Kotwa is shown by the correspondence between pp. 173 and 179.

35. On p. 173 the Commissioner on 11th June 1866 made a reference to the Board in regard to taluqa Kotwa alone and on p. 173, line 37 he stated that Mr. Sladen, the Collector, considered that confiscation was barred by the admission of these women as managers and by the share they had in the mortgage. The Commissioner himself took a contrary view. The first order of the Board on p. 174 was passed on the erroneous assumption that the ladies had been entered for shares and on a subsequent reference the Board passed a final order on p. 179 dated 30th August 1866 to the following effect:

The Board direct that a 6 pie share of Badal and Bharat in the sixteen villages is to be held confiscated and the names of the two female relatives are to be recorded as owners of the 1 anna 6 pie share in the talooka.

36. No such order was ever obtained by the ladies in regard to taluqa Chak Binda and Motiha. What happened in those taluqas was that their names were never entered as managers or in any other capacity, that the tahsildar never released any of the property in their favour, that the sale took place of the shares as recorded in the names of the rebels and that Sheopal Singh purchased those shares and obtained mutation in his favour. No objection was ever taken and his possession has all along been without challenge. We are of opinion that under these circumstances the descendants of the ladies cannot now re-open this matter in regard to Chak Binda and Motiha and that the plaintiffs have failed to show that there was any right, title or interest of the ladies in these two taluqas. On this ground also the case for the plaintiffs must fail. A further ground brought forward by the appellants is the provisions of Act 9 of 1859, Section 20. This Act was to provide for the adjudication of claims to property seized as forfeited and it provided for Courts of special commission to be set up. We have seen that the matter of confiscation was brought before such a special Commissioner in Allahabad and that his decision was that the shares in taluqas Chak Binda and Motiha were to be confiscated. No application or objection was ever made by these ladies to that Court. Sec. 20 of that Act provides as follows:

Nothing in this Act shall be held to affect the rights of parties not charged with any offence for which upon conviction the property of the offender is forfeited, in respect of any property attached or seized as forfeited or liable to be forfeited to Government; provided that no suit brought by any party in respect of such property shall be entertained unless it be instituted within the period of one year from the date of the attachment or seizure of the property to which the suit relates.

37. This Section in our opinion clearly requires that persons who have any claim that they are owners of property which has been confiscated as the property of another should bring such a claim within one year from the attachment or seizure of the property which they claim. Various objections have been taken to the application of this Act which have found favour with the Court below. One of these objections is that Section 20 would not apply because by Act 8 of 1868 certain provisions of the Act were repealed, namely Sections 1 to 15 and Section 19. The repeal was made because by the year 1868 the special Courts had finished their work and were no longer necessary and Sections 1 to 15 related to those special Courts. The application of Section 18 had expired, but as regards Section 20 its application was permanent because it was intended to be a permanent bar against subsequent suits in Civil Courts. Hence Section 20 has remained in force up to the present day.

38. Another objection taken to the Act is that there really was no attachment or seizure of the property in question and therefore the period of one year did not begin to run. Now we have seen that as regards these two taluqas of Chak Binda and Motiha there was an attachment by the Criminal Court and this was carried out by the tahsildar and the application of the ladies against this did not result in the tahsildar of Kiwai releasing the property in these two taluqas from attachment. Accordingly, in our opinion, the property was attached and the period of one year did begin to run. The relevant portions of the paper book are page 142, line 25:

Hence a 'parwana' be issued to the Sub-Inspector of Police for taking all necessary action in connexion with the arrest and attachment of the property of the seven accused mentioned.

39. This property as shown on p. 143 included the property in Chak Binda taluqa and Motiha. On pp. 109 and 111 there are the reports of the tahsildar of Kiwai and there is the letter of the Collector on p. 159 saying that they had no property recorded for them. We think therefore that from the date of the attachment which was in accordance with the order of 9th March 1858 mentioned on page 142, line 21 and which had been objected to in the petitions of Gur Datt Chaube (pp. 98 and 99) dated 3rd July 1858, time began to run against these ladies under Section 20, Act 9 of 1859. As they did not bring any claim within one year from that attachment in 1858 their right to contest the attachment became barred.

40. This view of the effect of Act 9 of 1859 has been taken by their Lordships of the Privy Council in Mahomed Bahadur Khan v. The Collector of Bareilly (1874) 11 A 167, a case decided in 1874. The suit was brought in 1865 before amendment of the Act of 1868. It was held that where B's estate is confiscated the sons of his brother A who should have had a share could not sue after the expiry of one year from the date of the attachment. Another case in which the matter was considered after the amendment of the Act is Ramphul Tiwari v. Badri Nath (1891) 13 All 108 where a Bench of this Court held that a case stronger than the present, brought by the reversioners of a widow less than 12 years after the death of the widow was similarly barred. We are therefore of opinion that the present suit would also be barred by the provisions of Act 9 of 1859. For all the reasons we have given we consider that the suit of the plaintiffs must fail in its entirety. We allow this appeal with costs and we dismiss the suit of the plaintiffs with costs both in this Court and in the Court below.

Verma, J.

41. I agree that the appeal should be allowed and wish to add only a few words. It is common ground that at the time of the execution of the mortgage deed in question the names of Mt. Gulab Kuar and Mt. Uttam Kuar were not entered in the revenue records in respect of the property in question, or for the matter of that, in respect of any property whatsoever. The names of various male members of the family were entered against different portions of the property belonging to the family. It must also be borne in mind that the mortgage deed, of which redemption is sought by the plaintiffs as the representatives of Mt. Gulab Kuar and Mt. Uttam Kuar, was executed by Bharat Singh alone, or rather on his behalf by his father and guardian Badal Singh.

42. The case put forward on behalf of the plaintiffs-respondents is that although the entire property belonging to the family stood in the names of the male members alone and the names of the ladies Gulab Kuar and Uttam Kuar were not entered, and although the property mortgaged under the deed in question stood in the name of Bharat Singh or Badal Singh, and although the mortgage in question was made by Bharat Singh or Badal Singh, yet the ladies had a proprietary interest in the property and must therefore be treated as mortgagors along with Bharat Singh and Badal Singh. The defendants-appellants deny this. The further contention of the defendants-appellants as to taluqa Chak Binda and taluqa Motiha is that even if it be taken for granted that the ladies had any proprietary interest in the property, the Government confiscated the entire property as belonging to Bharat Singh and Badal Singh, who had been found to have been rebels during the Mutiny, and it was sold as the property of the rebels and was purchased by Sheopal Singh, the predecessor-in-title of the appellants, and no suit having been brought by the ladies within one year as required by Act 9 of 1859, whatever rights they might have possessed came to an end. The plaintiffs-respondents, on the other hand, contend that the Government released the shares of the ladies, which were found to amount to three-fourth of the property in question, and consequently the confiscation and sale must be taken to be operative in respect of only one-fourth of the property which was the share found to belong to Bharat Singh and Badal Singh.

43. It seems to me that the case put forward on behalf of the plaintiffs-respondents is an unusual and improbable one and a heavy burden rests on them. Not only were the husbands of these ladies, viz. Amar Bahadur Singh and Mohim Singh, alive, but they were actually entered in the Government records as the proprietors, and the names of the ladies were not, as stated above, entered against any property. It has nowhere been stated by the plaintiffs when and how these Hindu ladies came to acquire a share in the property, and no evidence has been adduced on the point. In the plaint there are merely the bald statements that the original mortgagor was the owner of only one-fourth of the entire property mortgaged, that the remaining three-fourth was owned by Mt. Gulab Kuar and Uttam Kuar, that with the consent of the ladies the name of the original mortgagor stood recorded in the papers against the entire property mortgaged, and that 'the persons named above' (evidently meaning Badal Singh and Bharat Singh) had mortgaged with possession the entire property under the mortgage deed dated 25th February 1848 with the knowledge and consent of the Musammats. No evidence has been given in support of the allegations made in this paragraph that the names of Badal Singh and Bharat Singh had been recorded in the papers against the entire property mortgaged with the consent of Mt. Gulab Kuar and Mt. Uttam Kuar, nor has any evidence been given of the fact that the mortgage deed in question was executed with the knowledge and consent of the Musammats.

44. At the trial reliance was placed on Ex. 30 and on certain documents of the time of the Mutiny and of the period immediately following it to show that the allegation made in para. 3 of the plaint to the effect that 'the original mortgagor was the owner of only one-fourth of the entire property mortgaged' and 'the remaining three-fourth was owned by Mt. Gulab Kuar and Uttam Kuar' was true. As has been pointed out by my learned brother, Ex. 30 is a unilateral agreement, and there is nothing to show that it was executed by Debi Prasad, who purported to act as the general attorney of these ladies, with the knowledge of the mortgagees of 1848, Mahadeo Prasad and Karanpuri. There is no evidence whatsoever to show that the statements made in this deed as to the original title to the property and as to a purchase at auction sale having been made in the name of Bharat Singh in consultation with Bharat Singh's mother and with the consent of Mt. Gulab Kuar and Mt. Uttam Kuar, are true. It does appear that the mortgagees, Mahadeo Prasad and Karanpuri, subsequently in Suit No. 58 of 1861 obtained a decree against these ladies on the basis of this deed of agreement in respect of another deed of mortgage, executed on 14th January 1854, which has been variously described as a simple mortgage or as a mortgage by conditional sale. The present suit is not in respect of that mortgage, but there is nothing on this record to show that the mortgagees of 1848 or Sheopal Singh ever accepted Mt. Gulab Kuar and Mt. Uttam Kuar as having had any interest as mortgagors in the property which had been mortgaged in 1848.

45. So far as the other documents are concerned, they are ambiguous and indecisive. It is possible to argue on the basis of some of them and they lend some support to the contention of the plaintiffs, but the documents relied on by the defendants-appellants, e.g. Exs. E, G, K, L, M & N and again Exs. T, WW with the order to the Board thereon, and CCC, with all of which my learned brother has dealt in detail, fully support the contention of the defendants-appellants. Even if these ladies had any interest in the two taluqas of Chak Binda and Motiha it was their duty to bring a suit within one year, and that not having been done, any such right that they are alleged to have had, came to an end.

46. The case as to taluqa Kotwa stands on a slightly different footing. The defendants-appellants admit that after the Mutiny the Government, rightly or wrongly, were persuaded to release a three-fourth share in these 16 villages, with which we are concerned in this suit, in favour of Mt. Gulab Kuar and Mt. Uttam Kuar and that they came to be recorded as the proprietors of that share. The parties are also agreed that in or about the year 1873 there was a Revenue Court partition in the course of which certain proceedings took place and certain villages were allotted to the different parties in certain shares. It is common ground that a number of entire villages and shares in certain villages were allotted to this family in which these ladies had a three-fourths share. The contention of the appellants is that subsequently, in 1877, the decree-holders of the Suit No. 58 of 1861 put up to sale the entire property belonging to these ladies in the villages of taluqa Kotwa with which we are concerned and had them sold and that Sheopal Singh purchased the whole of the share belonging to these ladies.

47. Here, again, it may be that there are certain documents which lend some support to the contention of the plaintiffs, but these documents also are ambiguous. On the other hand, the sale certificate, Ex. LL and the rubkar, Ex. PP are decisive in favour of the defendants-appellants. In view of the ruling of their Lordships of the Privy Council in Ramabhadra Naidu v. Kadiriyasami Naicker (1922) 9 AIR PC 252, the sale certificate is the document of title and cannot be lightly ignored by reference back to other documents and it cannot be argued that the property could not have been sold and so must be taken not to have been sold. The sale certificate leaves no room for doubt that the entire 12 annas, i.e. 3/4th share of the ladies was purchased by Sheopal Singh.

48. The plaintiffs-respondents have laid great stress on Exs. 58 and 59 and have urged that the language of these two documents is such that it must be held that Sheopal Singh stated in these documents that he had purchased only 7 annas out of the 12 annas belonging to the ladies and not the remaining 5 annas which had been held during the partition proceedings to represent what had been usufructuarily mortgaged in 1848. We are not prepared to accept the contention that the language of these two documents is such that it must necessarily be held that Sheopal Singh was mortgaging all that he had purchased at the auction sale held in execution of the decree. The documents are open to the construction that he was mortgaging a portion, namely 7 annas, of the property which he had purchased at the auction sale. The contention of the defendants-appellants therefore must be accepted and it must be held that the plaintiffs-respondents failed to establish that they had any subsisting title to the property which they sought to redeem.


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