1. This appeal arises out of a reference made by the Collector of Chittagong to the District Judge under Section 18, Act I of 1894, Two questions arise on the appeal: (1) Whether the valuation made by the Collector and accepted by the learned Judge is correct; (2) Whether the appellant has any title to the land acquired and is, therefore, entitled to the whole or a portion of the value of the property. It is convenient before dealing with the first question to deal with the second for, if the appellant is found to have no title, it would not be necessary at his instance to consider the question of valuation.
2. The tenant interest in the property admittedly belonged to one Kader Baksh and on his death it was inherited by his daughter Pearijan. Pearijan executed what purports on the facts of it to be a deed of sale out and out in favour of one Maniraddin Soudagar on the 8th of Assar 1253 Maghi, corresponding with the 21st of June 1890. On the same day two other documents were executed. One was a kaluliyat executed by Pearijan in favour of Maniuddin, whereby she accepted a subtenancy under Maniraddin in respect of the land sold by her at an annual rent of Rs. 48; the sub-tenancy was expressly made non transferable. The other document was an ekrarnama by which Maniruddin agreed to give up the land into the khas possession of Pearijan in case the latter paid him the entire amount of the principal money mentioned in the kabala as well as all arrears of rent at the rate mentioned in the kabuliyit. Pearijan was married to one Hamidulla, and it appears that on Pearijan's death her son Abdul Latif in the year 1892 executed a conveyance of the equity of redemption in favour of the present appellant, Nazir Ali, treating the transaction of 21st June 1890 as a mortgage. At the time of the sale there were other heirs and they subsequently executed a similar conveyance in favour of Nazir Ali and one Abdur Rahman Soudagar. The appellant's title is based on these documents. If the kabala of 1890 was an out and out sale, there was no equity of redemption which Pearijan's heirs could convey to Nazir Ali, Nazir Ali's case is that after his purchase he paid off the mortgage money, but the Judge has not believed this story and we are not prepared to take a different view of its credibility. Plaintiff can only succeed in this appeal if he can show that taking the three documents, together, the transaction amounted to a mortgage. The question depends upon the intention of the parties to be gathered from the documents. We are also at liberty to notice the fact that the claim to redeem, on the footing that the transaction was a mortgage and not a sale, is made by the plaintiff for the first time after a lapse of twenty-six years. The remark of Lord Cranworth cited by Lard Atkinson in Jhanda Singh v. Wahid-ud-din 36 Ind. Cas. 38 : 38 A. 570 : 31 M.L.J. 750 : 21 C.W.N. 66 : 20 M.L.T. 529 : 14 A.L.J. 1189 : (1916) L.J. 524 : 10 Bur. L.T. 131 : 43 I.A. 284 (P.C.) is relevant: 'I think a Court after a lapse of thirty years ought to require cogent evidence to induce it to hold that an instrument is not what it purports to be.
3. Not only has there been this great lapse of time but further, there is evidence of specific conduct on the part of the plaintiff, which stands in his way. The evidence, in our opinion, is clearly admissible, not indeed in view of the observations of the Privy Council in Maung Kyin v. Ma Shwe La 42 Ind. Cas. 642 : 45 C. 320 : 15 A.L.J. 825 : 33 M.L.J. 648 : 3 P.L.W. 185 : 6 L.W. 777 : 22 C.W.N. 257 : 23 M.L.T. 36 : 27 C.L.J. 175 : 20 Bom. L.R. 278 : (1918) M.W.N. 300 : 9 L.B.R. 114 : 11 Bur. L.T. 21 : 44 I.A. 236 (P.C.) for the purpose of interpreting and explaining the documents of title, but independently of those documents. We have little hesitation in saying that we should never have heard of this claim to redeem if land acquisition proceedings had not been taken in respect of the property in dispute. It is in evidence that all these years Nazir Ali has stood by and allowed the heirs of Maniruddin to remain in possession and to assert their absolute right to the property. Some of these heirs mortgaged their interest to Sashi Kumar Das. The latter obtained a mortgage decree which was purchased by Pranhari Dass. Nazir Ali himself advised Pranhari to make the purchase and actually went with him to the house of Sashi Kumar to effect the sale an 1 himself, as found by the learned Judge, signed the kabala as a witness.
4. On these grounds, in our opinion, it would be unjust to allow the plaintiff's claim and it must be rejected.
5. It is next argued that even if the claimant has no right to redeem, he has still the right as sub-tenant obtained by Pearijan under the kabuliyat executed by her on the 21st June 1690. It appears that be never paid any rent to Maniruddin or his successors. He remained in possession of the land along with other heirs of Maniruddin which may be explained by the fact that he had married one of Maniruddin's daughters. In the course of the negotiations between Shashi Kumar Das and Pranhari, he does not seem to have asserted his right as a sub-tenant. By the terms of the kabuliyat the tenancy was not transferable. The learned Vakil for the appellant concedes that the tenancy, even if it existed, was an under raiyati: such a tenancy could be determined by a year's notice under Section 49 of the Bengal Tenancy Act. The valuation put on the property by the Collectoris Rs. 3,114-2-10, and this has been accepted as correct by the learned Judge on reference. Taking this amount to represent 20 times the annual value, the claimant's very precarious interest in the property cannot be value at more than 1-20th of the value so fixed. The learned Vakil for the respondents has offered to give the claimant this amount, and we think the appellant cannot in any case get more than this sum, minus one year's rent.
6. We accordingly award to the claimant appellant Rs. 3,114/20 -36, or in round figures a sum of Rs. 120 only.
7.We are not disposed in the circumstances of the case to alter the valuation at the instance of the appellant, the other claimants being satisfied with it.
8. The appeal having failed, the respondents are entitled to their costs of the appeal. The Secretary of State will receive one third of the costs and the other respondents two-thirds.