ing himself to make good any default on his brother's part, and pledging the talooqua of Purtabneer as a security for the fulfilment of his own engagement: all these three deeds were duly registered. The kutkinnahdar has, however, paid only Rs. 3,346 out of the Rs. 20,000 due from him to the theekadar. That sum has, in conformity with the agreement, been paid to the mortgagee, and the receipts of the latter made over to the Rajah: as plaintiff's son had engaged to pay the entire amount of the theeka to the mortgagee, the latter had pressed the plaintiff for payment, and had got possession of a large portion of his property in satisfaction of his claim, in consequence of which plaintiff, for his own protection, was compelled to bring this action. The defendant, Rajah Cheyt Singh, in reply, stated, that he had entered into negotiation with Mirza Mohumed Syed, with a view to obtaining a loan from that person of Rs. 20,000 to be repaid, in eight years, by annual instalments of Rs. 2,500, mortgaging to the lender seven villages in talooqua Beena, with power to foreclose the mortgage on default of payment, the mortgage deed bearing date 19th July 1840: that at the desire of the mortgagee, the theeka, &c., were executed, as a means of providing for the payment of the debt. It was agreed that the deeds should first be registered, and the money paid afterwards, on receipt of which the deeds were to be made over to the mortgagee; the registry was effected accordingly, and defendants' mookhteear applied for the money. The mortgagee advanced, at different times, only Rs. 8,000, and got the deeds from the defendants' mookhteear, promising to pay the balance of the loan, after deducting the portion reserved in payment of interest in advance. The mortgagee, however, never paid any portion of the balance to defendant, and, on being pressed for payment, said he would have nothing to do with the mortgage, theeka, &c., and called on defendant to refund the Rs. 8,000 already paid to him, and to take back the papers. Defendants' mookhteear objected that he was unable to do so immediately, having paid away the Rs. 8,000 in revenue and other necessary expences, but would do so by degrees; and Rs. 4,513 were so repaid in money and kind. The defendant pleaded, that the theeka and kutkinnah transactions are nominal transactions, as is evident from the identity of dates, periods, and sums entered in the several deeds; that the plaintiff's son, Qasim Ali, was a relative of Mirza Mohumed Syed, the mortgagee, and never obtained possession, as theekadar; that the mortgagee was in fact the only party interested; that the plaintiff had not himself made good any portion of the amount of the theeka, and had, therefore, no right to institute this suit; that, as the conditions of the original mortgage had not been fulfilled, the theeka and kutkinnah transactions, which were dependent thereon, had no existence, and that the mortgagee would have been alone entitled to appear, as plaintiff, had he kept faith with defendant in the matter of the loan and mortgage. The other defendant, Koonwur Ajeet Singh, filed a reply of a similar tenor, with the additional plea, that he had never obtained possession as kutkinnahdar. The Principal Sudder Ameen decreed in favor of the plaintiff's claim, holding the theeka and kutkinnah transactions to be valid. He considered the payment of the Rs. 20,000, on the part of the mortgagee, satisfactorily proved. He observed, that the defendant was able to adduce no proof of his assertion, that the theeka and kutkinnah transactions were incomplete and invalid; that he had not got back the papers; that the payment of his instalments to Qasim Ali, the theekadar, under the kutkinnah, was proved; that the plaintiff was fully competent to sue, as the heir of his son, the theekadar; that the mortgagee, Mirza Mohumed Syed, was not in a position to sue, in consequence of the subsidiary arrangements made for the satisfaction of his mortgage; and that the accounts produced by the defendants, to establish the payment of Rs. 1,167, in excess of the sum admitted to have been received by the plaintiff, were unworthy of credit. In conclusion, the Principal Sudder Ameen, to guard against a possible fraud on the part of the mortgagee, Mohumed Syed, by subsequently instituting a suit in his own name, on the mortgage deed, after the passing of the present decrcc, ordered, that the amount of this decree should be paid to the plaintiff, only on the condition of his producing the receipt of the mortgagee, and likewise the mortgage deeds, for the purpose of the same being returned to the defendant Rajah Cheyt Singh. The defendants being dissatisfied with this decision, appealed therefrom, and the case came to a hearing, this day, before a full Court. The Court are unanimous in opinion that the decision of the Principal Sudder Ameen cannot be maintained. It is quite clear to them that this is not a bona fide suit on the part of the plaintiff, but that the real, though not ostensible, suitor is Mirza Mohumed Syed, the mortgagee. This fact is clear, as urged by the defendants, from the identity of the dates of the mortgage and other deeds, of the sums specified therein, and of the periods fixed for payment in each. The Principal Sudder Ameen seems to have been perfectly aware of this fact, and in order to avoid any bad use being made of the present decree, he has attached a condition to it, which he was not competent to do. He has, in fact, decided on the matter of the mortgage, which was not judi cially before him. Being satisfied of the inseparable nature of the several transactions, he should, at once, have dismissed the plaintiff's claim. The whole arrangement of the theeka and kutkinnah was a mere contrivance on the part of Mohumed Syed to obtain a double security for the loan advanced by him to the Rajah. It is absurd to suppose that there could be any reality in the Rajah's giving the villages in theeka to the plaintiff's son, the latter reletting the same to the Rajah's brother, for whom the Rajah was to become security. The plaintiff, as the representative of his son, would have no right to sue as theekadar, even had the transaction been a real one: a theeka or other farming tenure is not hereditary. The liability under that deed expired with Qasim Ali. The Court give no credit to the plaintiff's assertion, that Mohumed Syed had held him responsible for the non-fulfilment of his son's engagements, and even supposing that plaintiff had complied with the mortgagee's demand, his inconsiderate acknowledgment of an illegal claim would not invest him with the right to sue the kutkinnadar and his security. With advertence to the foregoing observations, the Court reverse the decision of the Principal Sudder Ameen, and dismiss the plaintiff's suit, with costs. CASE No. 84 OF 1851. { Special appeal from the decision of C. Allen, Esq., Judge of Furruckabad, dated 20th August 1850. SYED WAZEER ALI, (Plaintiff), Appellant, versus HIMUNCHUL AND OTHERS, (Defendants), Respondents. FOR the particulars of this case see pages 153 and 154 of the printed decisions for Zillah Furruckabad, for the past year. A special appeal was admitted to try, "whether the Principal Sudder Ameen and Judge was justified, under their own finding of the points at issue between the parties, in dismissing half of the plaintiff's claim, and whether they ought not, on the contrary to have given him a decree for the whole." The case came to a hearing before a full bench this day, the respondents not appearing to defend the appeal. The Court find the fact undisputed by the respondents that they are in possession of ths of the village, which the plaintiff had advertized for sale in execution of his decree against Moolloo, alias Khoondun, whom he declares to be the father of respondents, and to whom the property had been transferred by Moolloo. The defendants reply that Moolloo and Khoondun are distinct persons, that the latter is their father, and that they have derived no part of their present possession from Moolloo, against whom plaintiff held the decree, and that, consequently, they were not liable for that decree. The only point then at issue between the parties is, are defendants the sons of Moolloo, alias Khoondun, or of Khoondun, a distinct individual. The Principal Sudder Ameen and Judge have found that Moolloo and Khoondun are one and the same, and that defendants are his sons, their defence therefore falls to the ground, and the whole ths must be held liable for the decree against Moolloo, alias Khoondun. The reasons assigned by the Judge and Principal Sudder Ameen for exempting half the property from sale are wholly insufficient: the Principal Sudder Ameen supposes what is not even asserted by the respondents, that they had derived 2 biswahs from one Bejey; an assumption quite unwarranted by the record, and in direct opposition to Bejey's own evidence in the case. The Principal Sudder Ameen and Judge should bear in mind the salutary rule laid down in the Circular Order of the 13th September 1843, viz., that Judicial Officers should "strictly confine themselves to the adjudication of the point or points at issue between the parties, as set forth by themselves." The Court amend the decision of the lower Courts, and decree in full the claim of the appellant, with all costs of suit. Present: The 31st May, 1851. CASE No. 97 of 1851. A. W. BEGBIE, Judges, S. S. BROWN, Offg. Judge. Special appeal from the decision of HAJEE IMAM BUкSH, (Plaintiff), Appellant, versus SHEO GHOLAM AND SHEO PULTUN, (Defendants), Respondents. THE plaint in this case sets forth that a loan was advanced to defendants on security of a lease, which was afterwards con verted into a deed of sale of the property, and that the purchase money included a balance in the former loan of Rs. 199 remaining due at the time of the execution of the deed. A suit was afterwards brought by plaintiffs to establish their deed of purchase, in which they were cast, and they now sue to recover the Rs. 199, with interest, the balance due on the loan. The Sudder Ameen was of opinion that the suit was barred by the provisions of Section 10, Regulation II. of 1803, and considering it a vexatious one, he imposed a fine on plaintiff of Rs. 100. In appeal, the Principal Sudder Ameen differed from the lower Court on this point, and applied to the Judge for permission to remand the case for a trial on the merits, but the Judge withheld his sanction to the remand, being of opinion that the Sudder Ameen's decision was right. The Principal Sudder Ameen then proceeded to dispose of the case by upholding the decision of the lower Court. A special appeal was admitted to try, whether the lower Courts were right in dismissing the suit under Section 10, Regulation II. of 1803; and 2nd, whether a fine could be imposed by the Sudder Ameen consistently with Construction 966. The Court consider that the lower Courts have erred in their application of the Section to the subject of the suit. The only point tried in the former suit was the title by purchase. It was not contended by the defendants in that suit that the purchase money in the sale deed had not been made good, or that there had not been any advances in the preceding transaction. They denied the sale transaction altogether, and the decision was given on the single point at issue, which was simply declared to be not proved on evidence. There is not therefore any ground for the respondent's plea that the appellants are now reviving "a cause already determined by a Court of competent jurisdiction," nor any bar in law to the trial of the suit on its merits. With regard to the second point in the certificate, the Court find the fine to be opposed to the Construction 966 which rules that the penalty in Section 40, Regulation XXIII. of 1814 can only be imposed in the form of damages, and they reverse the order. The decision of the lower Courts is accordingly annulled, and the case remanded to the Sudder Ameen's Court, who will replace it on his file, and proceed to a regular decision, |