mortgagees by the plaintiffs, Khoondun Singh and Sher Singh, he considers to be a forgery, no mention of this document having been made by Bhugwan Dass and Seeta Ram in their reply to the first suit instituted against them by the plaintiffs: he attached no weight to the discrepancies between the calculations of the plaintiffs in their former and present suit, and the two bonds, tacked on to the mortgages, supposing them to be genuine, having been executed by the heirs of Nuwul Singh only, are not of force against the four plaintiffs, who are NOT heirs of Nuwul Singh. He rejects the plea of Moouzzum Khan and his party, that the original mortgagees, Bhugwan Dass and Seeta Ram, are alone liable for the wasilat, holding that the former stand in the place of the latter, and must assume all their responsibilities. The Principal Sudder Ameen accordingly decreed for the redemption of the property, with the sum above specified as wasilát. The defendants have appealed from this decision. * Mullickbasa, Appellant, versus Dhara Beebee and others, The 5th August 1850, S.D.A., The decision of the Principal Sudder Ameen is on the whole just and agreeable to the evidence. The precedent, quoted by the defendants is not in point. In that case, there were special reasons assigned for deviating from the general rule regarding the redemption of mortgages. The plaintiffs in the present case, if debarred from suing in the manner they have done, would be unable to redeem the mortgage at all. In respect to the farkhutter, I quite agree with the Principal Sudder Ameen in discrediting it, for the reasons stated by him; but it has escaped his observation that the farkhuttee is dated 29th January 1838, and purports to be a receipt for malikana up to the end of 1249 Fuslee; a period corresponding with the 19th September 1842, the amount, therefore, was not due till nearly five years subsequent to the date of the farkhuttee! There are only two points in the Principal Sudder Ameen's decision, which require correction, viz. his refusal to give the defendants credit, in account, for the balances of rent, due from the plaintiffs, and to make a deduction from the amount of the vakeel's fees, which had been made higher than they ought to have been, by the mistake of the plaintiffs in over estimating their suit. Both these objections are good, and as the respondent's vakeel expresses his readiness to accept this modification of the *From amount of claim Rs. 1344 14 9 Do. do. cost Rs. 50 4 0 Total Rs. 1395 29 decree, I direct the same to be made, without reference to a full bench. The items thus deducted from the decree are noted in the margin.* In regard to the farkhuttee, which there is such strong ground to believe to be a forgery, a separate proceeding will be addressed from this Court to the Magistrate of Allygurh, with instructions to institute an enquiry under the provisions of Act I. of 1848, against the parties filing the suspected document, with a view to their commitment for trial, should the evidence in his opinion be sufficient for conviction. The 2nd July, 1851. CASE NO. 125 of 1851. : Special appeal from the decision of F. P. Buller, Esq., Officiating Judge of Furruckabad, dated 26th February 1851. TEJA, (Defendant), Appellant, versus SOOMEER SINGH AND OTHERS, (Plaintiffs), Respondents. THIS case will be found reported at page 34 of the printed decisions for zillah Furruckabad, for the month of February last. A special appeal is admitted to try, whether in disposing of "this suit, the Officiating Judge has not omitted to notice and "record an opinion on a point material to its adjudication." The Court observe that the Judge has confined his deliberation to the simple fact, of whether the wajib-ool-urz, or village declaration of rights, was assented to by Puhulwan, or not. But this is not sufficient, admitting that Puhulwan was a consenting party to the wajib-ool-urz, it remains to be considered,. whether, or not, he conformed to the conditions of that document. The rule prescribed therein, relative to private transfers by the village brotherhood, is to the following effect. "If any putteedar is desirous of selling or mortgaging his share, in the event of a hissehdar not taking it, he is at liberty to transfer it to a stranger." The obvious meaning of this provision is, that any hissehdar wishing to mortgage or sell his share shall, first, offer it to all the village shareholders; and in the event of their refusing to take it, then, only, is he at liberty to transfer it to a stranger. The appellant pleads, that Puhulwan did so offer it to his brethren in the village, before he sold it to him; and that none of them "were willing to purchase it." If this be true, it is obvious, that the conditions of the wajib-ool-urz have been fulfilled; and that there is no flaw in the sale made by Puhulwan to the appellant. But the Judge has not gone into this point; and, without enquiry, has assumed, that Puhulwan did not conform to the conditions of the wajib-ool-urz. I accordingly, annul the Officiating Judge's decision, and remand the case to be dealt with in the manner indicated in the foregoing remarks. The 2nd July, 1851. Present: S. S. BROWN, Offg. Judge. CASE NO. 120 or 1851. Special appeal from the decision of R. J. Tayler, Esq., Judge of Jounpore, dated 16th July 1849. RUJESUR SINGH AND UMR SINGH, (Plaintiffs), Appellants, versus OODWUNT SINGH, (Defendant), Respondent. THE Judge's decision is in the printed volume of the month. A special appeal was admitted to try, whether a decision should not have been given on the merits. The suit was for partition which was decreed by the Principal Sudder Ameen on proof of possession. In appeal, the Judge considered the suit barred by the limitation statute, and dismissed it. The right of partition being inherent to proprietary possession without any bar of limitation, the fact of such possession at the time of suit would alone have to be considered in a suit of this nature, and on the proof adduced, a decision would necessarily follow on the merits. The limitation statute is not therefore directly applicable to the claim, but the Judge's reasoning tends to the conclusion, that the appellants had not been at any time in proprietary possession so as to be in a position to claim partition. The point of law, on which the suit was disposed of, thus involved a decision on the real points of fact in the case, and there is consequently no point left to be considered in special appeal. The appeal is dismissed. The 5th July, 1851. Present: H. W. DEANE, Judge. CASE No. 251 or 1850. Regular appeal from the decision of Abdool Ruhman Khan, Principal Sudder Ameen of Benares, dated 17th September 1850. GHUNSEAM DASS AND OTHERS, (Plaintiffs), Appellants, versus AITMA RAM, palneh, (Defendant), Respondent. CLAIM, to be put in possession, and to be recorded in place of the defendant as mortgagees of mouzah Alumpore, under a ruhinnamah bhog bunduk dated 12th December 1825; and to recover Rs. 6,870-15, wasildt, from the half of 1246 Fuslee, to the half of 1257 Fuslee. Hoossein Buksh, proprietor of mouzah Alumpore, mortgaged that estate to Soondur Dass and Ghunseam Dass, (father and son) for ten years, from 1233 Fuslee to 1243 Fuslee, under a ruhinnamah bhog bunduk. In the year 1836, Hoossein Buksh desired to sell the estate to Aitma Ram, and having deposited in Court Rs. 1,000, the amount of the mortgage money, applied to redeem. The Court on the 19th August 1836 passed an order in the Miscellaneous Department, for redemption. The mortgagees appealed to the Sudder Dewanny Adawlut, and that Court, under Orders dated 24th May and 24th June 1837, cancelled the proceeding of the Judge as held improperly in the absence of a regular suit to redeem, and of any adjustment of accounts as required by law, and directed the reinstatement of the mortgagees. It was in contemplation to take the requisite steps for redemption, when, in order to obviate delay, the parties arranged the matter among themselves, by Aitma Ram placing in the hands of a muhajun the sum of Rs. 1,300, which the mortgagees consented to accept in satisfaction of their claims in full, and by the latter filing a soolehnamah in Court through their vakeel on the 7th September 1837, to the effect, that they were satisfied, and that they relinquished all demands on the mortgaged property. It is contended by the plaintiffs that Aitma Ram withdrew the money lodged in the muhajun's hands, that the soolehnamah was invalid, and did not take effect, and that they are consequently in a position to sue to be replaced in possession as mortgagees. The main pleas of the defendant are, that the suit is barred by lapse of time, the plaintiffs never having obtained possession under the order of the Sudder Court, and that the plaintiffs, after the formal tender of a soolehnamah, are not at liberty to sue for possession. The Principal Sudder Ameen held with respect to the plea in bar, that there existed indications of the temporary possession of the plaintiffs under the injunction of the Sudder Court, though it is evident from the wording of his judgment on this point, that he entertained some doubt, whether it were an actual and bona fide possession, or a mere type of possession, such as is furnished by a dukhulnamah put in by the nazir of the Court, in obedience to an order issued to him. With regard to the soolehnamah, it was the opinion of the Principal Sudder Ameen that the tender of that document by the plaintiffs, uncharged as it is with any conditions, and containing a full and formal surrender of all claims on the mortgaged property, is wholly incompatible with the asserted right to recover possession. If the money |