Lawrence Jenkins, C.J.
1. This is a suit occasioned by the determination adversely to the plaintiff, Jamahar Kumari Bibi, of a claim to property preferred by her in execution proceedings.
2. This property is No. 147, Cotton Street, and Chitty, J., has held that Jamahar, though ostensibly its owner, is in truth merely a benamidar for the judgment-debtor, her husband, Chatrapat Singh. He accordingly has dismissed the suit. From this judgment the present appeal has been preferred.
3. The house was put up for sale in execution of a decree against Chatrapat Singh and was ostensibly bought by Jamahar on the 10th of April 1897 for Rs. 50,000. No cash passed and the explanation is that on the 2nd of March 1896 the decree was expressed to be assigned to Jamaharin consideration of Rs. 1,10,000, and the Rs. 50,000 was set off against a corresponding part of what was due under the decree.
4. Jamahar contends that the assignment to her of the decree is free from flaw and that the defendants have not established its invalidity.
5. How then did Jamahar get this sum of Rs. 1,10,000 with which to buy this decree against her husband? Her case is that it is a part of a sum of throe lacs raised by her on the 26th March 1895 by a mortgage to the Pakur Rajah, ft is recited in that instrument of mortgage that she was absolutely and beneficially seized and possessed in her own right and as her own property free from incumbrances of both the zemindari and putni rights in the zemindari Parganah Suksena and these rights she purported to mortgage for Rupees 3 lacs.
6. The question then arises, were these zemindari and putni rights really hers? To answer this, it is necessary to look into certain transactions of 1893 and 1895.
7. On the 15th August 1893 Jarao, Chatrapat's mother, relinquished in favour of the Maharajah Sir Jotindra Mohun Tagore her putni right in Fatehpur Singia and conveyed to him the arrears of rent due to her from the tenants. In the instrument of relinquishment it is recited that she had learnt that it would be beneficial to her to acquire the mahki right of Suksena by relinquishing the putni right to Fatehpur Singia, and then the recitals proceed as follows-Sol applied to the Maharajah Bahadur for the conveyance of the maliki right of Suksena by relinquishing the said Patehpur Singia, whereupon both myself and the Maharajah Bahadur would be benefited by this transaction, and we both agreed to the same. Accordingly with the object of fulfilling my long-cherished desire of making a gift of a zemindari in favour of my daughter in-law Srimati Jamahar Kumari Bibi,--which for various reasons I could not fulfil (so long)--I applied to the Maharaja Bahadur for making over the zemindari right to the sad Suksena to the aforesaid Jamahar Kumar, Bibi by a deed of gift, believing that my desire would be fulfilled and that it would bring me pleasure if the Maharajah Bahadur would now give away the maliki right to the aforesaid Saksena zemindari by a deed of gift m favour of my daughter-in-law, Jamahar Kumari Bibi, instead of me and the Maharajah Bahadur having agreed thereto and having executed deed of gift in favour of the said Bibi.' Then there follows the relinquishment. On the same date an instrument described as a deed of gift was executed by the Maharaja in favour of Jamahar. It is there recited as follows: At present the said Bibi Saheba having proposed that she should surrender the putni right which she has. in the aforesaid patehpur Singia by executing a separate deed of surrender m my favour and that in lieu of the same I should make an absolute gift of the proprietary right in, the said zemindari Suksena to you, who are her daughter-in-law, and expressed that the Bibi Saheba would be pleased with and benefited by it, I have agreed to the said proposal and have taken khas possession of the said putni mahal and I have been benefited thereby. I being pleased with this act of your mother-in-law's, and. owing to the friendship of my deceased paternal grandfather and deceased' paternal uncle and myself with your husband's, paternal grandfather, the late Babu, Protap Singh and your husband's deceased father, I have with the desire of doing yon a good turn at, the present time, agreed cheerfully to make a gift to you of the proprietary and other rights, title, interest and concern which 1 have in respect of the said zemindari Suksena in accordance with the said proposal and you have agreed to accept the same. Then there followed the gift of zemindari Suksena to Jamahar.
8. By an instrument, dated the 2nd February 1895, Jarao assigned to Jamahar her putni rights in Suksena as also the Girjaghar in Baluchar for Rs. 1,01000. This is the title Jamahar claims to show to the zemindari and putni rights mortgaged to the Pakur Rajah. To complete the history of the family's dealings with the property it is necessary to refer to certain instruments executed in 1880.
9. The first is dated the 13th of November, and it purports to be a sale by Luchmiput, Chatrapat's father, to his wife, Jarao, of three properties specified in the instrument including the Girjaghar for Rs. 50,000. No cash passed, but the price was treated as a partial payment of a debt due to her from her husband. On the 15th November, Luchmipat and Chatrapat executed in favour of the Maharajah Sir Jotindra Mohun Tagore an assignment of the zemindaris Fatehpur Singia, Suksena, Mamdanipur and Poladasi for Rs. 13,50,000. At the same time, there was a grant by the Maharajah to Jarao of the putni right in these four zemindaris for Rs. 2,04,000. This sum was not paid but was kept back by the Maharajah from the purchase-money for the zemindaris and allowed in account between Jarao and her husband by way of deduction from the debt alleged to have been due to her. This then is the history of the material transitions and the view of Chitty, J., was that the intervention of both Jarao and Jamahar was as benamidars. I recognize that the value of this opinion is in some measure discounted by the fact that it was in part based on the view expressed in earlier litigations, a class of evidence that was used by the learned Judge to an extent that the law does not permit. But apart from this evidence there are circumstances which clearly fall for explanation and the onus in this case is on Jamahar to show affirmatively that not only the ostensible but the real title also is in her.
10. She is a plaintiff who is calling in question in a suit contemplated by the Code (Order XXI, Rule 63) an adverse decision of the Court given, it is true, in a summary proceeding, but conclusive subject to the result of this suit. This is a suit, therefore, to alter or set aside a summary decision or order of the Court, and it is a method of obtaining review: Phul Kumari v. Ghanshyam Misra 35 C. 202 : 7 C.L.J. 36 (P.C.) : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 17 M.L.J. 618 : 14 Bur. L.R. 41.
11. The plaintiff in the circumstances of this case cannot discharge the burden of proof cast on her by merely pointing to the innocent appearance of the instruments under which she claims: she must show that they are as good as they look. If specific authority for this is needed, it is furnished by many cases, among which are the decisions of Sir Richard Couch in Roop Ram Doss v. Saseeram Nath Kurmokar 23 W.R. 141 and of Sir Charles Sargent in Govind, Atmaram v. Santai 12 B. 270.
12. It is then useless for Jamahar to contend that the actual deeds under which she claims are free from appearance of unreality and, therefore, it rests on the defendants to make out that they are colourable. Moreover, these deeds are so interwoven with the earlier transactions that they cannot be considered apart from them, and it cannot be claimed that the examination of the dealings disclosed on the record inspires confidence in Jamabar's case. Nor are matters mended when the later dealings are closely examined. Thus, to deal with the alleged purchase by Jamahar of Saraswati's decree. No doubt the price was made in cash, but why should Jamahar have brought on her own account this decree against her husband, a decree which she has never been able to realize, whether she has made real endeavours in that direction or not?
13. The question has naturally been asked, where did she get the money to pay the price, Rs. 1,10,000? The answer has been that it was a part of the Pakur Raj loan, and in support of this our attention has been invited to the fact that four of the Rs 10,000 notes handed over in payment for the transfer of the decree are identical with four notes received on the occasion of the Pakur Rajah's mortgage. But it would seem that of the Rs. 10,003 notes paid on the transfer of the decree some were not received in connection with the Pakur Rajah's mortgage.
14. This is apparent from the entry, Exhibit DI, in Jamahar's rokur, where we find that of nine notes of Rs. 10,000 each five were not received on the execution of the Pakur Rajah's mortgage. In fact of the 30 notes of Rs. 10,000 then received from the Pakur Rajah only four formed part of the price paid for Saraswati's decree.
15. This does not agree with the explanation given by Jamahar and her witnesses, nor is there any suggestion made of intermediate dealings between the 16th of March 1895 and the 2nd of March 1896 which might account for the change in the notes representing the Pakur Rajah's advance.
16. Nor is this the only difficulty. No explanation is given why in March 1895 Jamahar should have borrowed three lacs, or having; borrowed it, should have kept so large a I sum as Rs. 1.04,000 in her custody apparently uninvested.
17. I Moreover, the mode in which the entry is made on the 3rd Falgoon 1302 (14th February 1896) only serves to increase the difficulty, especially when it is borne in n mind that the entry is in her rokur. And the same remark applies to the subsequent entry of the 21st of March.
18. A speculative explanation has been tendered for our acceptance, but it does not accord with the opening entry of September of 1895 in the corresponding ledger. The true position might have been disclosed by the next preceding rokur and ledger, but they are not forthcoming. It is said that they are lost, but why they alone should have suffered that fate does not appear.
19. The later matters only serve to emphasise the necessity for clear and convincing proof of the genuineness of the transactions on which Jamahar relies and when she fails to produce the books that should disclose the truth, she cannot complain if an adverse presumption be drawn. What is disclosed suggests that though the Pakur Rajah's advance ostensibly came into Jamahar's hands it merly passed through them, and that the payment for Saraswati's decree merely passed through Jamahar's rokur as a matter of form. Nor is the failure to produce evidence limited to there account books. Jarao, if all that is represented regarding her be true, played an important part, ad yet she was not called as a witness. True it is that she is a pardahnashin lady and advanced in years, but there can have been no difficulty in her evidence being taken on commission, as amahar's was.
20. Then, Jamahar's ignorance of the transactions in which she is supposed to have been the principal person concerned is not without its significance, and in so saying I have particularly in mind her rambling story as to the Rs. 50,000, the price of 147, Cotton Street.
21. Each side has claimed that the evidence of possession favours it. But at most its effect is negative, and all that one can say is that it is not inconsistent with the case of either side.
22. I recognize the force of Jamahar's contention that a gift to her was within the Maharajah's competence, but all circumstances have to be considered and when this is done the validity of her title requires more cogent proof than this to establish its reality.
23. The evidence of Ganguly, it is true, is to some extent inadmissible as resting on what was told him by others. But there are matters on which he is able to give relevant evidence of importance, and this so far as it goes is adverse to the plaintiff's case, and to the genuine character of the Maharajah's assurance to her.
24. The result, then, is that though I hold some of the evidence on which Chitty, J., acted was not relevant, still I agree with him that the suit ought to be dismissed.
25. And I come to that conclusion because the plaintiff has wholly failed to prove that the transactions under which she claims were real and genuine, a burden that rested on her in view of the result of the summary proceedings and the circumstances of the case. Therefore, I think, this appeal should be dismissed with costs.
26. I agree.
27. I agree.