The 21st June, 1851. Present: S. S. BROWN, Offg. Judge. CASE No. 56 of 1850. Regular appeal from the decision of RAJAH ISHREEPERSHAD NARAIN SINGH, (Defendant), Appellant, versus RAI TEK LALL, HEIR OF RAI GIRODUR LALL, (Plaintiff) PLAINTIFF brings his action to obtain possession of talooqua Dunwar Rao, under a deed of assignment of the proceeds from the former proprietors, in liquidation of a debt contracted by them on the 31st August 1832, against the sale purchaser, Rajah Ishreepershad Narain Singh. Estimate of suit at three years jumma, Rs. 32,920-4-6. This case has been twice before the Court, and the particulars of the claim are set forth in the Court's decision of the 11th January 1848, when a nonsuit was declared. The plaintiff has now renewed his suit in the form indicated in the order of nonsuit. The defendant first raised an objection to the valuation, which he urged should have followed the rule in Clause 4, Note to Article 8, Schedule B. Regulation X. of 1829, and Construction 1101, and have been estimated at the value of the thing sued for, and not on the jumma. It was further objected that the suit was barred by limitation. On the merits defendant pleaded that the party Sheoraj Singh, who gave the deed of assignment, was only owner of a sixth of the property, and was not competent to pledge the whole, whereas defendant had acquired by his sale purchase the rights of all the sharers; that although the claim was put forth as one of conditional mortgage, the process prescribed in Section 8, Regulation XVII. of 1806, had not been observed, and that no objection had been advanced by the plaintiff at the time of sale, which, if the deed and claim were genuine, would certainly have been made. The Principal Sudder Ameen lays down three points as necessary to be determined, viz. the genuineness of the transaction, the validity of the assignment of the whole property by the owner of a sixth share of it, and the position held by the Rajah as sole purchaser, with his liability to the claim as regards the property. The first point is decided on the evidence in favor of the genuineness of the deed. With regard to the second point, the Principal Sudder Ameen finds, that under a soolehnamah filed prior to this transaction by the sharers in a suit before the Court, and enforced by decree, Sheoraj Singh had been put in possession of the whole property, and as the debt had been incurred in order to save it from sale for arrears of revenue the transaction was held to be valid and binding against the other sharers. Thirdly, the property having thus been pledged for the satisfaction of the demand, its transfer to the Rajah did not exempt it from its liabilities: possession was accordingly decreed. The appellant has now brought several technical reasons against the suit, and pleads the omission by the lower Court of any decision on the objections then raised by him. It appears that these objections were noticed in the interlocutory proceeding of that Court, and the Court is at a loss to understand why they were not disposed of. The limitation plea has not been revived, and the only renewed objections which call for notice are first, that of the valuation, and in this respect the respondent has undoubtedly erred in assuming a wrong principle of estimate, the decision of the Court of the 20th August 1849, No. 162, having established the rule that a suit for the possession of mortgaged property must bear the estimated value of the thing sued for, and not the jumma valuation, but the same decision rules, that a wrong principle of estimate does not necessitate a nonsuit, unless the error of valuation be a self-evident infraction of the Clauses of the Note to Article 8, Clause 4 excepted, or if coming under Clause 4, unless the undervaluation be proved on objection duly urged by the opposite party. In this case no proof of undervaluation has been adduced, and the objection is therefore overruled. The second objection is founded on the omission from the plaint of the details of the calculation of interest, which it is urged renders the plaint and decree imperfect, but the object of the suit being to obtain possession in pursuance of the terms of the deed, any further detail in the plaint was not called for, nor was it the business of the Court at the present stage to settle accounts between the parties. With regard to the merits the Court sees no reason to dissent from the conclusion of the Principal Sudder Ameen. The deed is proved, and it is clearly shown that Sheoraj Singh authorized his sons, who were associated with him in it, to execute it in their joint names at Benares, and that it was registered afterwards at Sheoraj Singh's application at Jounpore. This circumstance, which has been adduced by the appellant as tending to throw doubt on the document, serves rather to confirm it. The appellant has further referred to a clause in the soolehna mah, in which Sheoraj Singh engages, in general terms, not to alienate the property, but it has already been shown that the debt was incurred to save it from permanent alienation, and the exceptional circumstances sufficiently justify the transaction. The pledge was on the property, and it has been repeatedly ruled that the transfer of the proprietary right, by public sale, in satisfaction of decrees, does not affect any prior mortgage lien. The appeal is dismissed, with costs. The 19th June, 1851. CASE No. 5 OF 1851. Regular appeal from the decision of Moulvee Syed Mohumed Villayet Ali Khan, Principal Sudder Ameen of Allahabad, dated 11th December 1850. MUSSUMAT GOOLAB KOONWUR, (Plaintiff), Appellant, versus MOHUN LALL AND SHEIKH-OOL-ISLAM, (Defendants), Respondents. THE plaintiff's case is thus stated. There had been frequent disputes on pecuniary matters between her late husband, Sheo Dutt Singh, and one Bunsee Dhur, a muhajun, resulting in legal proceedings. At length, by a decision of the Sudder Court, the sum of Rs. 14,685-10 was adjudged to be due to her husband from Bunsee Dhur, as principal, with the addition of Rs. 11,346-4-9, as interest, which sums were paid into the Court's Treasury by Bunsee Dhur, on the 9th March, and 6th October 1847. The defendant, Sheikh-ool-Islam, (who had been the mookhteear of Sheo Dutt Singh), is now charged by the plaintiff with having drawn the former of the above named sums from the Sudder Treasury, and paid it over to the other defendant, Mohun Lall, on the 13th May 1847, without the knowledge or consent of Sheo Dutt: and she, further, declares, that the defendant, Mohun Lall, has rendered no account to her of his pecuniary transactions with her husband. It is also alleged that Mohun Lall, who held a mortgage of Sheo Dutt Singh's landed property, and was his kufeelkar, or responsible agent, subsequently contrived to get Sheo Dutt Singh to execute a bond for Rs. 19,000, for which the latter received no consideration, and without coming to any previous settlement of accounts, plaintiff's husband died on the 28th Asar 1256 Fuslee, (3rd July 1850); on which she applied to have her infant son's estate placed under the management of the Court of Wards, and, in retaliation thereof, the defendant, Mohun Lall, instituted a suit against her, on the abovementioned fraudulent bond for Rs. 19,000. The object of the plaintiff's present suit is, therefore, to recover, from the two defendants, the sum of Rs. 14,865-10, thus fraudulently appropriated by them, with interest thereon, amounting to Rs. 5,227-11-9. The defendant, Mohun Lall, in reply, declares, that not a single rupee is due from him to the estate of plaintiff's late husband. He states that, independently of a mortgage held by him on the landed property of the deceased, for Rs. 40,000, there had been a settlement of other accounts between them, when a balance of Rs. 23,781 was admitted by Sheo Dutt Singh to be due to defendant, who, at his earnest entreaty, relinquished Rs. 4,781-14-8 of the debt thus acknowledged, and took a bond for the balance or Rs. 19,000, bearing date 20th September 1848. The defendant further states that the sum of Rs. 14,865-10, now claimed by the plaintiff, had been credited to Sheo Dutt's account, in striking the balance, for which the bond of Rs. 19,000 was given. The defendant, Sheikh-ool-Islam, replies, that the money in dispute was drawn by him from the Sudder Court's Treasury, and paid to the defendant, Mohun Lall, with the full knowledge and consent of his late employer, Sheo Dutt Singh. The Principal Sudder Ameen dismissed the plaintiff's claim, observing, that the disputed item had been expressly allowed in the bond for Rs. 19,000, executed by Sheo Dutt Singh, which bond had been clearly proved by the attesting witnesses: that it was highly improbable if Sheo Dutt Singh had been defrauded by the defendants in the manner described by the plaintiff, he should never have complained against them in any Court, but still continued to employ Sheikh-ool-Islam as his mookhteear, and permit him to draw money for him from the Civil Courts: the contents of the bond, the Principal Sudder Ameen remarks, disprove the statement contained in the petition of plaint; he discredits the evidence brought by the plaintiff to prove that her husband's mind was in a disturbed state when he executed the bond, and that the defendant, Sheikh-ool-Islam, acted without authority from his principal. In conclusion, the Principal Sudder Ameen, in justification of his dismissal of the plaintiff's suit, refers to the separate decree passed by him, under date 25th September last, in favor of the defendant Mohun Lall, in the suit brought by him on this very bond. After perusing the record of this case, I entertain not the slightest doubt of the entire justice of the Principal Sudder Ameen's decision. The reasons given by him for dismissing the plaintiff's claim are unanswerable. The execution of the bond for Rs. 19,000, is clearly proved by most respectable witnesses, from whose evidence it is apparent that the deed was carefully read over and explained to Sheo Dutt before he signed it, and that he fully understood and admitted its contents. The plaintiff, aware that if the due execution of the bond were proved, it would convict her of falsehood, has endeavored to shew that her hushand was not a free agent at the time he signed it; but in this attempt she has altogether failed; as, also, in that to prove that the defendant, Sheikh-ool-Islam, acted without his employer's authority in drawing out the money from the Sudder Court's Treasury, and paying it to Mohun Lall. There would be very little use in executing bonds and other instruments if their obligations are to be set aside on such worthless oral testimony as has been got up by the plaintiff and her advisers in the present case; her three principal witnesses are servants or retainers of her late husband, who have evidently been tutored for the purpose. I dismiss the appeal, with costs. CASE No. 63 OF 1851. S. S. BROWN, Offg. Judge. (Special appeal from the decision of Moulvee Mohumed Hoossein Khan, Principal Sudder Ameen of Bareilly, dated 23rd November 1850. KHEMKURUN SINGH AND OTHERS, (Defendants), Appellants, versas MOOHKUM SINGH AND OTHERS, (Plaintiffs), Respondents. THE plaintiffs in this case sued to obtain possession of 1 biswah 11 biswansees of mouzah Dubharee, and to set aside a deed of sale executed in favor of the defendants Khemkurun and others. They stated that Pudum Singh, Lahoree Singh and Maha Singh, the former proprietors of the share in dispute, were their near relatives, that their rights and interests therein had been exposed to sale in execution of a decree obtained by Hursookh Rai and Toolsee Ram, defendants, who themselves purchased the same, and had subsequently transferred the property to the other defendants, Khemkurun and others, by private sale for the sum of Rs. 400, although, in the deed of sale, the price was falsely specified to be Rs. 700: that the application of Khemkurun and his co-purchasers to effect a mutation |