1. This is an application for leave to appeal to Her Majesty in Council. The value of the subject-matter of the suit is far above ten thousand rupees, and the case seems to be an important one.
2. The suit out of which this appeal arises wasino brought by Syed Ashghar Reza and Syed Dilawar Beza, as heirs of one Syed Ahmed Reza, to recover possession of their share in two properties, one of the properties being an 11 gundas share of a zamindari, and the other, a certain putni mehal. The claim was made as against Syed Hyder Reza and Syed Sufdar Reza, their step brothers, being the sons of Syed Ahmed Reza by another wife Afzulunnissa, and as against Syed Lutf Ali Khan, who has derived his title under a sale from those two individuals.
3. As to the first-mentioned property, namely, 11 gundas of the zamindari, it appears that it was purchased at an execution sale in the year 1851, in the name of one Kasim Ali, and this individual subsequently executed an ikrarnama bearing date, the 21st August 1852, in favour of Afzulunnissa, the mother of Hyder and Sufdar, admitting thereby that the purchase had been made from the money of that lady, and that the property belonged to her.
4. The plaintiffs' case was that the property had been purchased by Ahmed Reza with his money in the benami of Kasim, and that he, Ahmed, caused Kasim to execute the said ikrarnama in the name of his wife for his own benefit, and that he was in possession, and not Afzulunnissa.
5. The case on the other side was that the purchase in 1851 by Kasim Ali was a purchase for the benefit of Afzulunnissa and with her money; that it was really transferred to her under the ikrarnama, and that since the purchase she, Afzulunnissa, was in possession, and not Ahmed Reza. A further plea was, however, set up by the defendant, that even supposing that the purchase in 1851 was made with the money of Syed Ahmed Reza, it should be taken to have been a purchase made for the benefit of, or a gift made to Afzulunnissa and her sons.
6. In regard to the other property, namely, the putni, it appears that it was purchased in the year 1867 in the names of Syed Hyder Reza and Syed Sufdar Reza. The plaintiffs' case was that it as purchased with the money of Syed Ahmed Reza, and that it belonged to him; whereas the case of the other side was that it was really a purchase made by Syed Sufdar Reza and his brother, through their guardian, but that even if it be the case, that the money with which the purchase was made was money which belonged to [2973 Syed Ahmed Reza, it should be taken that Syed Ahmed Reza intended it to be an acquisition for the benefit of, or as a gift to, Syed Hyder Reza and Syed Sufdar Reza.
7. The Subordinate Judge held, so far as the first-mentioned property is concerned, that the purchase was made by Syed Ahmed Reza with his own money in the name of his mukhtear, Kasim Ali, and that the ikrarnarna, bearing date August 1852, operated as a transfer of the property from Syed Ahmed Reza to his wife Afzulunnissa. He seems to have also found that the beneficial enjoyment of the property in question since the execution of the ikrarnama was with Afzulunnissa, and not with Syed Ahmed Reza.
8. With regard to the putni the Subordinate Judge held that, although it was purchased with money borrowed by Syed Ahmed Reza, still as he had received various sums of money as profit from the 11 gundas share of the zamin-dari belonging to Syed Hyder Reza and Syed Sufdar Reza, and as he wanted to make a provision for these two young persons, he made the acquisition for their benefit. He also found that the beneficial enjoyment of this property was with them and not with Syed Ahmed Reza.
9. The result was that the suit was dismissed.
10. On appeal to this Court, the learned Judges have agreed with the Subordinate Judge in holding that the purchase of the 11 gundas share of the zamindari in the name of Kasim Ali in 1851 was by Syed Ahmed Reza with his own money, and not by Afzulunnissa; but they have come to a very different conclusion as regards the effect of the ikrarnama of the year 1852. They have held that it did not operate as a transfer from Syed Ahmed Reza to Afzulunnissa, as was held by the Subordinate Judge; but that it was really a transfer from the name of one benamidar to that of another. And as far as I can understand the judgment of this Court, the Judges seem to have also held that, notwithstanding this ikrarnama in favour of Afzulunnissa, the beneficial enjoyment of the property continued to be, as it hitherto was, with Syed Ahmed Reza.
11. The learned Judges, however, have at the same time held that Syed Ahmed Reza sometime in July 1859, when he married the plaintiff's mother Roustan Jehan, conceived the idea of making a gift of this property to Afzulunnissa, and this idea was given effect to about that time or shortly before her death, which took place in 1860; and this they have held to be proved by certain transactions of Syed Ahmed Reza in the years 1860, 1863 and 1869.
12. In regard to the putni the learned Judges seem to have taken pretty nearly the same view as that taken by the lower Court, although they have not expressed any opinion as to whether Ahmed had any money in his hands belonging to Hyder and Sufdar.
13. In the result this Court has come to the conclusion, as the lower Court did, that the plaintiffs are not entitled to recover any one of the two properties in question, and it has accordingly dismissed the appeal preferred by the plaintiffs.
14. Against the judgment pronounced by this Court the plaintiffs now ask for favor to appeal to Her Majesty in Council; and the first question that arises for consideration is, whether the decree sought to be appealed from affirms the decision of the Court below within the meaning of Section 596 of the Code of Civil Procedure.
15. The word 'decree,' as defined in Section 594 of the Code, 'includes also judgment and order;' so that I may take it for the purposes of the matter before me, that 'decree' means judgment. And the question then is, whether the judgment of this Court affirms the decision of the Subordinate Judge. No doubt it may be taken, as it was argued by the learned Advocate-General, that this Court has concurred with the Subordinate Judge in holding that the property at the time of the death of Syed Ahmed Reza did not belong to him, and that, therefore, the plaintiffs are not entitled to recover any share thereof; but it has come to this conclusion for reasons which to my mind are very different from those given by the Subordinate Judge. The learned Judges have held that the ikrarnama had not the effect of transferring the property from Ahmed Reza to Afzulunnissa; that the latter was but the benamidar for Ahmed; and that, notwithstanding the ikrarnama, the property continued to belong to Ahmed Reza.
16. If the judgment of this Court had stopped with their decision as regards the two questions upon which the Subordinate Judge decided the case against the plaintiffs, viz., as to the effect of the ikrarnama and as to possession since' that document, the plaintiffs would have been, as I understand it, entitled to recover. But then they go on to decide the case against them upon a totally different ground, viz., that some years after the ikrarnama there was a gift by Ahmed to Afzulunnissa.
17. I therefore take it that the judgment of this Court does not affirm the decision of the Court below so far as regards the 11 gundas share of the zamin-dari. And if this is a right view of the matter, the petitioners are entitled to a certificate that the case is a fit one for appeal. But I may also say that the appeal which they present involves substantial questions of law. For instance, a question is raised whether the defendant was entitled to set up in appeal, and succeed upon, a case which he did not raise in the Court of First Instance, and which was not involved in the issues raised between the parties. Another question is as regards the validity under Mahomedan law of the gift said to have been made by Syed Ahmed Reza to Afzulunnissa. Then there is the question raised as regards the admissibility of certain important documents, one of these documents being a certified copy of a plaint; and the question in regard to this is whether a plaint is a public document within the meaning of Section 77 of the Evidence Act.
18. It is not necessary to refer to the other points that are raised in this appeal.
19. I think upon the whole that the case is a fit one for appeal to Her Majesty in Council, and that it should be certified as such.
20. Let a certificate be granted accordingly, and the usual notice be issued.