1. One Ramdyal Singh died in 1845, leaving a widow Birja Koer, two daughters, Sham Sunder Koer and Moha Sunder Koer, two daughters' sons, Ajodhya, the son of Sham Sunder and Seo Charn, the won of Moha Sunder. Moha Sunder had also a daughter, Bhuwani Koer, whose son was Hanuman Sahai, the father of plaintiffs Nos. 1 and 9. It is said that Ramdyal Singh made a verbal Will by which he gave his properties to his two grandsons, Ajodhya and Seo Oharan, subject to a life-interest in favour of his widow Birja, giving the major portion to Ajodhya and the disputed properties amongst others to Seo Charan : that Seo Charan died during the life-time of Birja so that on Birja's death in 1851, Ajodhya got possession of the properties given to him and Moha Sander came into possession of the properties given to Seo Charan: that when Moha Sunder died on the 15th June 1894, the properties possessed by her devolved upon the heirs or nearest agnates of Seo Charan from whom Hanuman Sahai purchased them: Plaintiffs Nos. 1 and 2 are the sons of Hanuman Sahai and plaintiff. No. 3 Mohesh Lal is said to be an assignee of a moiety of the properties from them. The suit giving rise to the present appeal (No. 258) was brought by the said three plaintiffs for the recovery of possession of certain properties covered by a moharrari granted by Moha Sunder and Bhawani on the 29th March 1855, on the ground that Moha Sunder could not, as a Hindu mother in possession of her deceased son's estate, make the alienation without legal necessity, that no legal necessity existed and that the other lessor Bhawani had no sort of right whatever, and could not pass any title that would be available against the plaintiffs who are the purchasers from the nearest reversioners of Seo Charan. The suits giving rise to the other appeals were brought for the recovery of possession of certain properties covered by kobalas of different dates executed by Moha Sunder Koer for the same reason. Of these suits, particular mention need be made in respect of suit No. 20 giving rise to Appeal No. 531, which was in respect of a kobala dated 2nd October 1876 in favour of Shekh. Bahadur Ali, father of Moulvi Mohomed Rafti-ud-din. Hanuman joined with his mother and grandmother in executing this kobala and that which is impeached in Appeal No. 298, which was in favour, of the predecessor-in title of the appellant in that case.
3. The following were amongst the pleas urged on behalf of the defendants:
1. That Mohesh Lal is a benamdar of Moulvi Mohamed Raffi-ud-din and he cannot, therefore, maintain the suit.
2. That the suits being for setting aside certain alienations, plaintiffs Nos. 1 and 2 are not alone competent to maintain the suit and the suit must be dismissed for this reason alone.
3. That even if the suit could be maintained by plaintiffs Nos. 1 and 2, it must fail to the extent of the share purchased by Mohesh Lal.
4. That the suit is barred by limitation.
5. That the plaintiffs have not proved their title.
6. That Moha Sunder acquired title by adverse possession and coald, therefore, pass a valid title.
7. That there was legal necessity.
8. That there was ratification by Hanuman in respect of the moharrari by his admission of the same in the lcobala of 1876, in favour of Bahadur Ali and by his acceptance of rent from the moharraridar defendants.
9. That the decree for mesne profits should have been against Rafi-ud-din who had received the moharrari rent from them.
4. With regard to the point of benami, there is a vast body of evidence to show that Mohesh Lal had not sufficient money for making the purchase. On the other hand, Mohesh himself was examined as a witness by the defendants and he deposed that he inherited a large sum of money from his father who was an uncertificated mukhtear or tout. There is also the oral evidence of some witnesses who say that Mohesh was a man of means. Their knowledge, however, when tested by cross-examination, seems based upon surmises and founded upon no reliable data. It is admitted that Gajadhar, the father of Mohesh, was some way or other connected with Rafi-ud-din and the brothers of Mohesh are still in his service and Mohesh himself is proved to be his servant. Mohesh made the purchase while the whole title to the estate was in controversy, the Government claiming it by escheat and Rafi-ud-din as the transferee of a large fraction of the property was a party to the same. Is it possible that Mohesh hazarded a large sum of money on such a venture Is it not more probable that Rafi-ud-din knowing the weakness of his title under the deed of Moha Sunder, Bhawani and Hanuman, made the purchase in the name of Mohesh Lal with the object of getting rid of the mokarrari in the estate purchased by him and also acquiring other properties We cannot help thinking that the circumstances are extremely suspicious, and the fact that Rafi-ud-din made a faint show only of resistance to the suit in the lower Court andhas not appealed against the decree made against him goes a great way to confirm the suspicion. It is further shown that the properties, which Mohesh gives as security to his vendors for the due disbursement of the unpaid portion of the purchase-money kept in deposit with him for the expenses of the litigation, had belonged to the nephew of Rafi-ud-din, but bad been recently purchased by Mohesh at a revenue sale without any attempt by Rafi-ud-din, who is a rich co-sharer, to purchase the same. Mohesh admits that he did not pay the revenue of these properties at least for one kist after his purchase, but Rafi-ud-din paid the same. Although the defendants by an unfortunate mistake or through a mistaken policy examined Mohesh as their own witness and cannot very well impeach his evidence, we are bound to see whether he has spoken the truth. We do not believe the evidence that he inherited a large sum of money from his father who was a servant of Rafi-ud-din or according to the plaintiffs no more than a mere tout. It is admitted that he had only 15 bighas of land and no other property and no money-lending or other business ; in fact no insignia of the possession of property: one of his sons Ganesh at least is still a servant of Rafi-ud-din. He was a literate man and had Jamakharach but these are not produced. It is impossible to hold on the evidence that he had anything more than the 15 bighas. We have no hesitation in coming to the conclusion that Mohesh was not in a position to make the purchase: he had not the means to pay the consideration-money; and even if he had, he would not as a prudent man virtually purchase a litigation against Rafi-ud-din the friend and benefactor of his family and the master of his brothers, if not of his own also. On the other hand, the circumstances are entirely in favour of Rafi-ud-din being the real purchaser. He was perfectly aware of the circumstances of the family from his long connection with the same as we shall show in another connection, he knew the infirmity of his title under the purchase of 1876, he knew that half the properties when in khas possession would be more profitable than mokurrari rent for the whole : he knew that if the alienations could be set aside, he would acquire other properties also, those purchased by the mohunt and Joy Lal. He did not defend the suit and has not appealed. It was his retained mukhtear Sujait who negotiated the purchase and conducted this litigation.
5. We are aware that there is no direct evidence that Rafi-ud-din found the money for the purchase but the circumstantial evidence is so strong that we cannot help coming to the conclusion that Mohesh Lal is the benam-dar of Rafi-ud-din. That being the case, Mohesh Lal cannot maintain the suits and they must fail as to the moiety claimed by him. So far as this Court is concerned, it seems to be settled law now that a benamdar cannot maintain a suit for the recovery of property. See Hari Gobind Adhikari v. Akhoy Kumar Mozumdar 16 C. 364, Issur Chandra Butt v. Gopal Chandra Das 25 C. 98 : 3 C.W.N. 20, Baroda Sundary Ghose v. Dinobandhu Khan 25 C. 874 : 3 C.W.N. 12, Mohendra Nath Mukherjee v. Kali Prasad Johuri 30 C. 265 : 7 C.W.N. 229, and we see no reason to differ from these cases. We do not think the contention on the second point is sound. The suits are not really for setting aside alienations but for recovery of property on the ground that the life-tenant could not confer any title that would subsist after her death and the plaintiffs are entitled to possession since her death. Such a suit is maintainable by one co-sharer for his share only.
6. The third point has been already disposed of. The next contention is that the suit is barred by limitation: not by the 3 years' rule as was contended in the Court below but twelve years. This depends upon the date of the death of Moha Sunder. The plaintiffs say she died on the 15th June 1894 and defendants say she died on the 19th April 1894 and the suits were filed on the 14th and 15th of June 1906. There is oral evidence in support of each party and there is hardly anything to choose between them. The evidence for the plaintiffs, however, is supported by documentary evidence which, if admitted, goes to show that the case of the plaintiffs on this point is true. It is contended, however, that these documents are not admissible in evidence. These documents are (1) the petition of Hanuman Sahai dated the 15th December, 1894, for succession certificate to the estate of Moha Sunder, (2) plaint filed by hanumun Sahai v. Ramanugraha on the 11th September 1896, (3) petition of Syam Sunder Koer for succession certificate dated the 25th September 1894, (4) petition of Hanuman Sahai for registration of name dated 18th September 1894, (5) kobala, dated 30th April 1895, by Seo Sahai and Balgobind in favour of Hanuman Sahai.
7. It is contended that these statements are not admissible under any section of the Evidence Act and Section 32(5) relied on by the plaintiffs has no application, and illustration (m) to that section is wrong. We think, however, that the wording of the section 'relation to the existence of any relationship' is wide enough to include statements about the birth and death of relatives which events either commence or terminate the relationship. The cases of Ram Chandra Dutt v. Jogeswar Narain Deo 20 C. 758, and Dhan Mull v. Ram Chandra Ghose 24 C. 265 : 1 C.W.N. 270, are authorities which we have no hesitation in following.
8. As these documents support the case of the plaintiffs, we hold that the suit is not barred by limitation.
9. The next point urged in appeal is that the plaintiffs have not made out their title. The line of argument may be indicated as follows:--Foutinama of Ramdyal filed in the case is a copy of a copy and, therefore, the document has not been proved: even if it be taken as proved, it is not admissible as evidence as it contains the statement of third persons, which under the circumstances cannot be brought in under any section of the Evidence Act. If it is admissible, even then under its terms Seo Charan has a contingent remainder only and nothing to Hanuman. Even if Seo Charan be considered to have had a vested remainder, Balgobind and Seo Sahai are not proved to be the nearest reversioners and even if they be taken as the nearest re-versioner, they purported to sell to Hanuman only a right of suit which is not transferable according to the Transfer of Property Act.
10. The copy of the foutinama, that is filed in the present case Appeal No. 258, seems on the face of it to be a copy of a copy. The learned Subordinate Judge, however, says that from indications noted in his judgment, the document appeared to be a first copy. As so many cases were tried together, it may be that the first copy was before the Court in some one or other of them and as the original is proved to have been destroyed in the mutiny, the copy is admissible; but then it is contended that the copy has not been proved and the provisions of Section 90 of the Evidence Act have no application to a copy. It has been held, however, by Wilson, J., in the case of Khetter Chandra v. Khetter Paul 5 C. 886 : 6 C.L.R. 199, that the terms of Section 90 are wide enough to include copies within its mischief and this case has been followed by the Allahabad Court. See Ishri Pershad v. Lalli Jas Kunwar 22 A. 294 at p. 303. The question of the admissibility of the statement was before this Court in the case of Badrinath v. Hanuman, p. 535 of the Paper-book and this Court held that the document was admissible for the purpose of showing that the dispositions were not after-thoughts, but were put forward within a few days of the death of Ramdyal. The document was further used as evidence in several oases including that of Hanuman Sahai v. Ramanugraha, which went to the Privy Council and is reported as Ramanugraha Narain Joshi v. Chowdhry Hanuman Sahai 30 C. 303 (P.C.) : 30 I.A. 14 (P.C.) : 5 Bom. L.R. 6 : 7 C.W.N. 225. The evidence leaves no doubt that the document has been acted upon by the members of the family ever since its execution. Under the terms of the verbal Will contained in this document Seo, Charan takes a vested remainder and not a contingent remainder as it did not depend upon any condition precedent. Their Lordships of the Privy Council in the case above quoted considered the title of Seo Charan as a vested estate. On Seo Charan's death, therefore, the property devolved upon his mother Moha Sunder and on her death, on his nearest agnates. The evidence as to whether Balgobind and Seo Sahai were the nearest agnates has been severely commented upon but we see no reason to come to a different conclusion, from the learned Subordinate Judge and there is no rebutting evidence that any other person is Seo Charan's heir. Then it is contended that the kobala executed by Balgobind and Seo Sahai does not pass any title as the vendors had nothing more than a right of suit to pass. We think, however, that the whole estate of Seo Charan and not a mere right to sue passed to the reversioners subject to any alienations lawfully made by the intermediate holder and the reversioners would be Prima facie owners of the estate unless the alienees could establish a valid transfer of title. The conveyance, therefore, is of the property and not of a mere right of suit independent of any property. The next contention is that Moha Sunder acquired title by adverse possession and was, therefore, capable of passing a valid title. It is true that Moha Sunder entered as soon as Birja Koer died and soon after executed a deed of gift in favour of her daughters acting as if she were the owner'. This deed, however, was held to be fraudulent and inoperative against creditors but in another suit by the husband of one of the donees the document was held binding on the donor. This deed of gift, dated 28th of August 1860, calls her the daughter and heiress of Birja Koer, widow and heiress of Babu Ramdyal Singh deceased, and mentions the foutinama and warasatnama of Birja Koer as the basis of her title. This was, no doubt, setting up of a claim adverse to the reversioners; but she had her life-estate and could deal with it as she liked and no body could prevent her doing so. Moreover there is no evidence that the reversioners had notice of any such adverse claim and even if they had any notice, they could only have brought a declaratory suit and not a suit for possession. We do not think that this assertion of title constituted adverse possession against the reversioners. Their Lordships of the Privy Council in the case of Beni Pershad Koeri v. Dudhnath Roy 27 C. 156 : 26 I.A. 216 : 4 C.W.N. 274, say. 'They do not think that a mere notice by a person holding for his life, that he claimed to be holding on a perpetual or hereditary, tenure would make his possession adverse within the meaning of the Limitation Act so as to bar a suit for possession on the expiration of the life-tenancy.' See also Dharam Chand Lal v. Bhawani Misrant 24 I.A. 183 : 1 C.W.N. 697 : 25 C. 189 at p. 193. In the kobala of 1876, in favour of Bahadur Ali, she says she has life-interest only and her daughter Bhawani and daughter's son Hanuman are the reversioners; so that even after the expiry of 16 years from the date of the deed of gift, she was claiming no more than a life-estate. It cannot, therefore, be said that she consistently claimed any adverse title in herself.
11. Then it is contended, that there was legal necessity for the transaction and it is, therefore, valid. The nazarana mentioned in the molcarrari lease, dated the 29th March 1885, is Rs. 3,1C1 made up of two amounts Rs. 1,500, due under zerpeshgi lease dated 17th March 1852, and Rs. 1,601, under bond dated 17th September 1853, and the annual jama fixed Rs. 1,905. Neither the zerpeshgi lease nor the registered bond is on the record but there is some oral evidence that they were taken for the costs of the litigation with the Government. Reference is made to a decree for about Rs. 90,000, obtained by Government on the 11th August 1852, for mesne profits and to a notice from the Collector dated the 9th September 1853, stating that Ajodhya and Moha Sunder paid about Rs. 13,000 and agreed to pay about Rs. 12,000 in June 1854 and Rs. 12,000, in June 1855. It is also shown that Ajodhya sold several properties about that time. These documents certainly show that Moha Sunder must have been indebted to a considerable extent about the time of the lease and that the heavy litigation with Government was pending at the time of the loans said to have been satisfied from the bonus. Sheo Lal Singh and Murat Singh aged 75,76 years, depose that the zerpeshgi was taken by Moha Sander to defray the expenses of the litigation with Government and there is no reason to disbelieve them. It is true that the evidence for the plaintiffs attempts to prove that the income of her estate was about Rs. 16,000, but the oral testimony is not supported by the production of any collection papers or account-books and the very fact that her co-share Ajodhya Prosad, who got the major portion of the estate of Ramdyal, was selling property after property to meet the heavy expenses of the litigation with Government and to meet other dues, shows that the income of her share could not be so much. Plaintiff Gur Narain admits that Hanuman's accounts were in his possession at home. Plaintiff's witness No. 27 also says accounts were kept in Hanuman's time and Bhairo Dyal, plaintiff's witness No. 16, says Moha Sunder had accounts written by Bandhulal. None of these accounts have been produced and we presume these papers if produced would have proved the necessity for the alienations impeached in these cases.
12. If Ajodhya Prosad with the major portion of the properties of Ramdyal was so much hard put to it, Moha Sunder a Hindu lady with much less resources must have been in greater need and it must be said to her credit that she did not sell any property then. The present income of the property is no criterion for holding that it was the same fifty years ago. There is no evidence to shew what the income of the property was at the time of the mokarrari lease. The fact that Hanuman Prosad who considered himself the future owner of the property admitted the mokarrari in the kobala of 1876, in favour of Bahadur Ali and even after he purchased the reversionary interest of Balgobind and Seo Sahai he did not object to mokarari up to the time of his death, is very significant. These facts go clearly to show that the mokarrari settlement was prudent disposal of the property for a proper bonus at a proper jama and there is no reason to distrust the oral evidence as to the necessity for the loans, which were satisfied out of the bonus. The mokarari lease, therefore, is a valid document and the plaintiffs are not entitled to khas possession.
13. It is contended that Hanuman admitted the validity of the mokarari in the kobala executed in 1876 in favour of Bahadur Ali1 and further confirmed the title of the defendants as mokararidars by receipt of rent after his purchase of the rights of the rever-sioners.
14. There is no doubt the kobala proceeds on the basis of the validity of the mokarari and directs the vendee to receive the mokarari rent etc., from the mokararidars, but at that time Hanuman had no title whatever and could not confer any : as to whether his con-conduct gives rise to any title by estoppel will be considered later on. As to the receipt of mokarari rents by Hanuman after his purchase of 1895, the evidence is not at all satisfactory. The farq R/18, dated October 1899, is for the rant for the past five years 1302-1307. It is hardly possible that the mokararidars paid this large sum at a time when the litigation between Hanuman and Ramanugraha was pending in the Privy Council. It is true Hanuman got a decree in the High Court on the 4th August 1899, and applied for registration of his name on the 1st October 1899, but his name could not have been registered by the 20th October 1899, the date of the receipt. Again when Government applied for Letters of Administration to the estate of Ramdyal, the mokararidars in 1901 set up Jago Lal as the rightful heir and expressed their willingness to pay rent to whosoever might prove his title: they did not say they had paid rent to Hanuman. The Receipt C. 1/18 for Rs. 1,079 from Gajadhar Prosad thikadar under the mokararidars is also not satisfactorily proved and the account book of the thikadar which mentions the payment has a very suspicious appearance. We do not think the receipt of rent by Hanuman is made out.
15. Then comes the question of estoppel: we do not think it has any bearing on the first case (Appeal No. 258), as Hanuman's admission of the mokarari in the kobala to Bahadur Ali did not in any way affect the position of the mokararidars who were no parties to the same.
16. Then comes the question of the mesne profits. It is contended that the mokararidars defendants paid the mokarari rent to Rafi-ud-din as directed, by the kobala of 1876, by the vendors including Hanuman and as Rafi-ud-din is a party to the suit he ought to be made liable at least for the amounts received by him. We think this contention is reasonable and would only prevent further litigation by the defendants against Rafi-ud-din.
17. In the view, however, that we take on the question of legal necessity, it is not necessary to say anything more on this point.
18. The Appeal No. 258 is decreed with costs against the plaintiffs-respondents and Rafi-ud-din, other respondents will bear their own costs.
19. In these two cases there is no evidence of legal necessity. The evidence in No. 298 is that the consideration money of Rs. 13,000 was paid for payment of Moha Sander's debts. In No. 531 there is no evidence as the vendee was evidently in collusion with the plaintiffs and in fact was fighting the battle in the name of Mohesh Lal.
20. It is contended in these two cases that the plaintiffs, are in any event estopped from main taining this suit on the ground that Hanuman Prosad, the father of plaintiffs Nos. 1 and 2, was party to both these kobalas and although upon the findings he had no title at the time of the kobalas, the title subsequently acquired by him ought to enure to the benefit of the vendees. Section 115 of the Evidence Act, Section 18 of the Specific Relief Act and Section 43 of the Transfer of Property Act are referred to in support of this contention. Section 48, no doubt, has no application as the transfers were made before passing of the Transfer of Property Act. This principle of the section is, however, not new, and has been given effect to in many cases. In the case of Dooli Chand v. Bir Bhookun 6 C.L.R. 528, their Lordships of the Privy Council seemed inclined to hold that the principle was not applicable to Hindu conveyances. In the subsequent case of Ram Nirunjun v. Prayag 8 C. 138 : 10 C.L.R. 66, Mr. Justice Romesh Chandra Mitter said in reference to the above opinion that the principle had been extended tothis country by Section 18 of the Specific Relief Act I of 1877. The illustration to Section 115 of the Evidence Act also shows that the Indian Legislature recognised the principle as early as 1872, which is before the date of both the kobalas. The principle is based mainly on the doctrine of Courts of Equity that a person who enters into a contract without the power of performing it at the time is bound to perform it if he subsequently acquires the power. In Loot Narain Singh v. Showkee Lal 2 C.L.R. 382, a Ghatwal mortgaged his ghatwali tenure which was subsequently extinguished at the instance of the Zemindar. The Zemindar subsequently granted him a mokarari tenure and it was held that this tenure was liable for the mortgage. See also Dooli Chand v. Nirban Singh 5 C. 252 : 4 A.L.R. 150, Pranjivan v. Baju 4 B. 34, Sevaram v. Ali Bakhsh 3 A. 805. Here Hanuman Sahai, having no legal interest whatever, asserted that as a result of the litigation with Ramanugrah, it had been settled that Moha Sunder was to hold for life, then Bhowani and then Hanuman, so that the three fully represented the absolute title to the property. At that time he claimed to have a vested remainder although in reality he had no right. If the vendees were unware of the real teitl and relied upon the assertion, they could ask Hanuman to convey his subsequently-acquired title so as to make his assertion jointly with his mother and grand-mother that the absolute title to the property was being conveyed and the plaintiffs claiming under Hanuman would be equally bound. Now let us see if the vendees were really misled; as regards Bahadur Ali, the vendee in Appeal No. 531 it is clear that he had dealings with the family of Ramdyal Singh at least from 1853. In 1853 his wife Bibi Latifa took a lease of Delwa and Begya from Ajodhya--see Ex. 10 p. 382. In 1854 Latifa purchased some of the properties specifically allotted to Ajodhya--see Ex. 50 p. 679. In 1856 Bibi Latifa took a lease from Ajodhya of some of his other specificproperties, Ex. 11 p. 386. In 1874 Bahadur Ali himself took a zerpeshgi lease of some of Ajodhya's properties from his widow Musammat Ajnaso, Ex. 28, page 458. In most of these documents, the title of Ajodhya is set out as the grandson and heir of Birja Koer, widow and heiress of Babu Ramdayal Singh and the written statement of Rafiuddin in the escheat cases, sets out the whole title from the verbal Will of Ramdyal downwards--see Ex. 9, page 395. No doubt, this document was dated the 16th April 1894 but it sets out all the previous dealings of his father and mother with the family of Ramdyal. There can be no doubt, therefore, that Bahadur Ali was aware of the real state of things and could not have been misled. As regards the mohunt, however, the appellant in Appeal No. 298, there is no such evidence of prior dealing against him; it may be said, however, that his Kobala recited the litigation with Ramanugrah and if the proceedings in that case had been examined with care, the real title would have been apparent and the mohunt must be fixed with constructive notice of the same. Reliance is placed on Patman v. Harland 17 Ch. D. 353 : 50 L.J. Ch. 642 : 44 L.T. 728 : 29 W.R. 707: it was held in that case that a lessee or a purchaser having notice of a deed forming a part of the chain of title of his lessor or vendor has constructive notice of the contents of such deed: the same principle has been applied in the case of Rajaram v. Krishnasami 16 M. 301 and in the case of Nurul Hossein v. Sheo Sahai Lal 19 I.A. 221 : 20 C. 1, the Judicial Committee speaking of the manner in which the vendor was described 'as general mukhtear and executor under the Will and adopted son of Parbati Koer, widow of Dwarka Das deceased' says 'the purchaser thus had sufficient notice to make it his duty to enquire as to what Parbati had powertosell'. It may betaken, therefore, that the mohunt was aware of the litigation and its result: now what was that? Moha Sunder had made a gift of the properties she had been claiming as heir of Birja Koer to her daughters, Gir Koer and Bhawani Koer. Gir Koer died leaving a minor son who died leaving his father Ramanugrah as his heir. Ramanugrah brought suit in this right and got a decree on the ground that the deed of gift was binding between the parties to it. It was a legitimate inference that if the gift was good for Gir Koer it was good for Bhawani and Hanuman would be her heir. A layman and outsider not fully acquainted with the history of that family cannot be expected to investigate the title from a lawyer's point of view and find out whether the deed of gift, although binding between the parties, was not binding on the world at large. It would be pushing the doctrine of constructive notice too far to hold without any other evidence that the mohunt was aware of the real title. It is most probable that he was misled by the assertion which had apparent support, from the notorious result of the litigation in favour of Ramanugrah. We think, therefore, the mohunt had no notice, actual or constructive, in respect of the want of title in Hanuman and was misled by his assertion. Hanumsn could not if he were alive impugn the title of the mohunt on the ground that he had no title at the date of the sale and the plaintiffs claiming through Hanuman cannot do the same. We think, therefore, the plaintiffs are estopped from impeaching the mohunt's purchase and Appeal No. 298 must be decreed with costs payable by the plaintiffs-respondents. As we have held that in Appeal No. 531 legal necessity is not proved and there is no estoppel, the appeal will succeed only to the extent of the share claimed by plaintiff No. 3. Plaintiffs Nos. 1 and 2 will be entitled to possession of 1/2 the property in suit subject, of course, to the mokarari we have upheld in Appeal No. 258: they will get mesne profits for the share decreed from three years before suit to delivery of possession and each party will bear its own costs in this Court as well as in the Court below.
21. The kobala in this case could not be produced. There is evidence, however, that it was dated 16th April, 1854, and executed by Moha Sunder Koer for a consideration of. Rs. 20,500 out of which Rs. 5,500 was left with the vendee for paying up the zurpeshgi debt due to Srichand who appears from other evidence in the case to have had dealings with the family, and Rs. 15,000 taken for paying decretal amounts due to Government. The ekrarnama Ex. K 121, dated 27th June, 1856, shows that Srichand received the zurpeshgi of Rs. 5,500 made up of two debts incurred by Birja Koer in 1848 and 1851. It is probable that these debts were incurred for the litigation with Government which had been pending from time of Ramdyal but there is no evidence to that effect. As regards the larger amount there is evidence that it was taken for paying decretal amounts due to Government and that there were urgent demands for the payment of the money. There is evidence also that Ajodhya Prosad the larger co-sharer was selling property after property for meeting these demands. In fact he sold a property to Srichand on the 24th April 1854 for Rs. 6,500 and another property to the mother of Rafi-ud-din on the 15th June 1854 for Rs. 8,000. Reading these circumstances by the light of the oral evidence, we think the necessity as to this amount of Rs. 15,000 may be considered as made out. Better evidence could hardly be expected at this distance of time and the plaintiffs, who may be expected to be in possession of the accounts of the time of Moha Sunder, do not produce them to show that the money was otherwise spent. As the legal necessity for Rs. 5,500 is not supported by any legal evidence, the plaintiffs Nos. 1 and 2 will have a decree for recovery of possession of the disputed properties on payment of Rs. 8,500 with interest at 12 per cent per annum to the representatives of Jailal who now hold the property, they on their part accounting for the profits enjoyed by them in respect of that half, see Phoolchund v. Rughoobuns 9 W.R. 107, Mutheeram v. Gopal 20 W.R. 187, Deputy Commissioner of Kheri v. Khanjan Singh 11 C.W.N. 474 : 29 A. 331 : 5 C.L.J. 344 : 4 A.L.J. 232 : 2 M.L.T. 145 : 17 M.L.J. 233 : 9 Bom. L.R. 591 : 10 O.C. 117.
22. As the appeal succeeds as to half on the ground that plaintiff No. 8 has no right of suit and partially succeeds as to the other half, the appellants will get three-fourths of the costs in both Courts; the respondents-plaintiffs Nos. 1 and 2 will get one-fourth costs in both Courts.