1. The appeal is by the 28th defendant. It relates to item 1 of schedule B. It is a mortgage evidenced by Exhibit B. The original of Exhibit B was executed in 1892 by the 4th defendant and the 28th defendant in favour of Ismailsa Rowthan Ismailsa Rowthan being dead, the plaintiff as one of the heirs to Ismailsa Rowthan's property claims a share in it. Ismailsa Rowthan died in 1899 and the present suit was brought in 1904. The case of this defendant is that the mortgagee bond was executed in favour of Ismailsa Rowthan merely with the object of preventing the 28th defendant from making a second marriage. The document itself appears to have been filed in a suit during his (Ismailsa Rowthan's) time. Ismailsa Rowthan having died before the proceedings in that suit terminated finally, the document was not taken back, and Exhibit B is a registration copy of it, The 23th defendant does not argue the 11th ground of appeal which is that opportunity ought to have been given to him to adduce evidence as regards the unreal nature of the mortgage debt in question. It is now admitted before us that this ground is untenable. The Subordinate Judge expressly allowed him, by an order dated 13th November 1905, to adduce any further evidence that he had in connection with the 8th issue which relates to the mortgage-debt. But the Vakil for the appellant contends before us that he had no opportunity to cross-examine the witnesses on the side of the plaintiff, and that the plaintiff was bound to produce those fitnesses for the purpose of such cross-examination. This is a new-ground and we are not prepared to allow the appellant to raise it. But even if the appellant were allowed to raise it, we should be prepared to hold that the opportunity that was given by the Subordinate Judge did really cover liberty to re-call the witnesses for the plaintiff for the purpose of cross-examination. The Vakil for the appellant says that he was not under any obligation to pay patta for summoning witnesses of the plaintiff. Surely, it is idle to raise such a contention before us when it does not appear to have been stated by the Subordinate Judge at all. We do not think that if any point had been made about who was to pay patta for the summonses to the witnesses of the plaintiff who had to be re-called, any difficulty would have been raised with reference to it.
2. Passing now to the merits, the Subordinate Judge has dealt with the question in paragraphs 67 to 76 of his judgment, and we entirely agree with his conclusions. The burden is upon the 4th and 28th defendants. The 28th defendant, notwithstanding the opportunity that was afforded to him by the Subordinate Judge, did not choose to go into the box. We cannot accept the story that is told of the object of executing the original of Exhibit B. We must take it that, as the document was executed by both the brothers and no steps have been taken during all the time that has elapsed since its execution to question it, that the transaction was real; and the 4th and 23th defendants are liable under it to the heirs to the estate of Ismailsa Rowthan. We dismiss the appeal with costs.
3. Passing now to the memorandum of objections, the first point raised is with reference to a portion of item No. 72 of schedule A. That portion is said to be Survey No. 63A. It was purchased in Revenue sale by the 4th defendant. The Subordinate Judge has come to the conclusion that the 4th defendant was merely a benamidar for Ismailsa Rowthan's heirs. He holds that under the Revenue Recovery Act a nominal purchaser cannot be displaced, but it has been held by a Full Bench of this Court in Narayansawmi Padayachi v. Govindasawmi Padayachi 29 M. 473 : 1 M.L.T. 234 : 16 M.L.J. 505 that it is open to the real purchaser to set up and to prove his title. As the 4th defendant does not appear before us to question the correctness of the finding of the Subordinate Judge, we must, on the view of the law which we are bound to take, hold that the plaintiff is entitled to her share in the property.
4. The next item that is the subject of dispute in the memorandum of objections is Survey Nos. 3 and 5. The 28th defendant is the purchaser of this item. The Subordinate Judge holds in paragraph 117 of his judgment that there is nothing to show that the money came from the 4th defendant. The 4th defendant was examined as a witness on the side of the plaintiff and he was not asked a single question as to whether these Survey Nos. 3 and 5 were really not the property of the family. We must, therefore, express our agreement with the Subordinate Judge and dismiss the memorandum of objections as regards this item.
5. As regards costs, our order is that the first respondent is entitled to his costs as regards Survey No. 63A against the 4th defendant. As regards Survey Nos. 3 and 5 he is bound to pay the costs of the 23th defendant.