pending the adjudication of his suit against Khoshal Singh, for if it be established in the present action, as it has apparently been established in the suit brought by plaintiff against Khoshal Singh, that the plaintiff is the rightful owner of the disputed land; the plaintiff cannot lose by his failure to attach what it was not in the power of Khoshal Singh to alienate to the present defendant. As little to the purpose is it for the Judge to insist in his decision on the plea in defence, that the deed of sale to Zalim Singh was registered, and the deed of sale to the plaintiff not registered, for whenever a registered deed invalidates under Act XIX. of 1843, an unregistered deed, it is an express proviso of that law that the "authenticity" of the registered deed "be established to the satisfaction of the Court." The real point to be tried in the present suit, and on which both parties have joined issue, is contained in the third plea in defence, viz. " that the byenamah in the plaintiff's name is fraudulent, and that no money was ever paid to Khoshal on it." If this plea be proved, the decree held by the plaintiff against Khoshal Singh cannot stand, being based on a fictitious transfer; if it be not proved, the plaintiff is entitled to a decree in the present action, and it will avail Zalim Singh nothing that he "really purchased the estate," because, in the event last supposed, he will have purchased what did not belong to the seller.

The suit is remanded to the Judge for retrial with reference to the above remarks.

The 10th July, 1851.

Present: S. S. BROWN, Offg. Judge.

CASE NO. 31 OF 1851.

Regular appeal from the decision of Moulvee Abdool Azeez, Principal Sudder Ameen of Ghazeepore, dated 12th December 1850.

RAMROOP SINGH AND OTHERS, (Plaintiffs), Appellants,

versus

RAMDEHUL SINGH AND OTHERS, (Defendants), Respondents. SUIT, for proprietary possession of 100 beegahs of land in talooqah Koondeshur, and for Rs. 10,995 proceeds of the same, from the year 1247 to 1256 Fuslee, total estimate of suit Rs. 14,995.

The plaintiffs brought an action in 1837 against the defend. ants to recover the value of produce. The suit ended in a compromise between the parties, defendants agreeing to make over to plaintiffs 100 beegahs of land in proprietary possession

at a fixed rent of Rs. 75. Ten years afterwards, plaintiff applied in the Miscellaneous Department for execution of the soolehnamah, but the application was refused, and he was referred to a regular suit. An application was then made for permission to institute a suit in formá pauperis, which after the usual enquiry was rejected. In the meantime the twelve years, from the date of the soolehnamah, had lapsed, and the suit was brought seven months after the term.

Defendants advanced the plea of limitation, and the Principal Sudder Ameen admitted it. He observed that possession at any period within the limitation was not alleged, and that the application for leave to sue as pauper could not save the lapse. He rejected the plaintiffs' argument, that the order in the Miscellaneous Department new dated his cause of action. For these reasons the suit was dismissed.

The plaintiffs have renewed their reasons in appeal, and urge that the defendants did acknowledge their possession of 30 beegahs of the land, in a petition filed by them in the Miscellaneous Department in 1847, in answer to their application for execution, and it appears that such acknowledgment was made, but the plaintiffs in their replication in the lower Court directly denied, that the 30 beegahs in question were part or parcel of 100 beegahs now sued for, and they cannot now be permitted to take up different ground in their appeal. The other reasons in the judgment are supported by rule and precedent, for which it is enough to quote the decision of the Court of the 27th May 1850, No. 236, and the Construction No. 813 in regard to the insufficiency of an application in formá pauperis, and of a miscellaneous application to save the limitation. The appeal is dismissed, without summoning the respondents.

CASE No. 220 of 1850.

A. W. BEGBIE,
H. W. DEANE,

}Judges,

S. S. BROWN, Offg. Judge.

Regular appeal from the decision of Mohumed Ruzee-ooddeen Khan, Principal Sudder Ameen of Allygurh, dated 26th August 1850.

SYED ALI AND MUSSUMAT JEEONEE, (Plaintiffs), Appellants,

versus

SOOLTAN ALI, NEEAZ ALI AND OTHERS, (Defendants), Respondents. THE plaintiffs sue for possession and partition of ten biswahs in five several mouzahs, in pergunnah Attrowlee, zillah Allygurh,

together with wasilât, and for a share in the above proportion to certain building ground, baghs and dwelling houses. The full value of the suit is Rs. 12,856-3.

The main portion claim of the plaintiffs is founded on hereditary right: Syed Ali is the son of Mussumat Jeeonee, and the defendants, Søoltan Ali and Neeaz Ali, are uncles of Syed Ali. The pedigree is as underneath.

Moosee Ruza.

Nowazush Ali, Kudrut Ali,
1

Neeaz Ali-Sooltan Ali-Moutaz Ali,

I
Syed Ali.

The plaint sets forth that Nuwazush Ali, the grandfather of Syed Ali, disinherited his son Neeaz Ali, on account of his ill repute, and made over by hibbehnamah all his property to his two remaining sons, Sooltan Ali and Moutaz Ali. These latter were placed in possession, and an allowance of Rs. 4 per mensem was made to Neeaz Ali, of which the payment was provided by an ikrarnamah executed by the two brothers of Neeaz Ali. Sooltan Ali and Moutaz Ali, (father of Syed Ali), were found to be in joint possession at the Settlement in 1838 A. D. In 1249 Fuslee, Moutaz Ali died, leaving the plaintiff, Syed Ali, then twelve years old, another son aged two years, and a widow, the plaintiff, Mussumat Jeconee. Sooltan Ali took advantage of the minority of his nephews to establish himself, and has recorded in the khewut papers of 1251 Fuslee, with the object of defrauding the plaintiffs, that the plaintiffs are entitled merely to an allowance in land and money, specified as 93 beegahs 6 biswahs, and Rs. 30

malikana.

Sooltan Ali answers, that the date of the hibbehnamah is not given, nor is the document itself produced. It is asserted that Neeaz Ali was not disinherited, as alleged, and that Moutaz Ali, father of Syed Ali, has never been in possession. Nowazush Ali and Kudrut Ali, resigned the malgoozaree of the five mouzahs, and from 1213 Fuslee to 1227 Fuslee, the Settlement was made with farmers. At the Settlement of 1228 Fuslee, Nowazush Ali had become blind, and about the same time Kudrut Ali died. The defendant, Sooltan Ali, applied for revenue engagements on the part of Nowazush Ali, and the durkhast was accepted, Neeaz Ali was pensioned off, and Nowazush Ali, having reason to be dissatisfied with Moutaz Ali, placed Sooltan Ali in sole possession. On the 9th June 1820, Nowazush Ali constituted by formal deed, Sooltan Ali his sole heir, and Sooltan Ali obtained from the Col

lector an engagement in his own name, with the assent of Motee Begum, widow of Kudrut Ali. In 1231, an allowance in land and money was made to Moutaz Ali by his brother Sooltan Ali, and it was enjoyed by Moutaz Ali during the rest of his life. Moutaz Ali living and dying in a separate residence, Syed Ali, it is said, has succeeded to that allowance which was drawn by his father for twenty years, by himself during seven years; and to set up a present title on a hibbehnamah is not permissible, since according to Construction 942, a person who has received a maintenance from his family is precluded from laying claim to a share in the family estate. Moreover the plaintiff, Syed Ali, on the 21st November 1849, reported at the Attrowlee thannah, that 300 kutcha beegahs of seer land, belonging to him, had been confiscated by Sooltan Ali, and that Sooltan Ali entertained designs on his life. No hibbehnamah was put forward at the recent Settlement in behalf of the plaintiffs, and in the roobakaree of 23rd February 1838, Sooltan Ali is recorded as lumburdar, engagements having been taken from him for all the five villages, from 1246 Fuslee to 1265 Fuslee.

Neeaz Ali replies that he was not disinherited, that no hibbehnamah was executed, nor any ikrarnamah. Descendants of Kudrut Ali are living, and they are entitled to share in the property of the common ancestor. At the Settlement of 1228 Fuslee, the engagers were Nowazush Ali and Sooltan Ali, and the respondent Neeaz Ali was allowed by his father Rs. 4 per mensem. After the Settlement of 1228 Fuslee, Sooltan Ali, acting under the authority of Nowazush Ali, made a provision for Moutaz Ali, as above specified, and in like manner arranged for the maintenance of other members of the family. At the last Settlement, the claims of other branches of the family were not attended to, nor can those of the plaintiffs be taken into consideration.

In replication the plaintiff's urge, that the hibbehnamah, though not forthcoming, is proved to have existed by a reference to the khewut papers of 1247 Fuslee, and to the putwarree's and qanoongoe's records.

The Principal Sudder Ameen observes, that Nowazush Ali was formerly in possession as of hereditary right, and that according to the plea of the defendants, Nowazush Ali, on the 9th June 1820, drew up a mookhteearnamah, in virtue of which he constituted his son Sooltan Ali, head and representative of the family, the name of Nowazush Ali being also recorded in the Settlement papers with that of his son Sooltan Ali. The suit, in the opinion of the Principal Sudder Ameen, is not barred by lapse of time, though that plea is put forward; for the Principal Sudder Ameen does not regard the paper of the 9th June 1820, as exclusively vesting Sooltan Ali with the territorial possession of the family,

but only as pointing him out as the fittest manager of the family interests; and inasmuch as Nowazush Ali died subsequently to the Settlement in 1838, the claim is brought within the legal period. In regard to Neeaz Ali, the Principal Sudder Ameen remarks that he has asserted indeed that an allowance of Rs. 4 per mensem was made to him; but it is evident that this assertion has been made at the bidding of Sooltan Ali; and since it is shown by the answer of Neeaz Ali that there are other living descendants of Nowazush Ali, the plaintiffs cannot, to the prejudice of the interests of those parties, succeed to the half share of the entire property; though beyond question the plaintiffs are entitled to some portion of the property. The Principal Sudder Ameen accordingly dismissed the suit, but with this reservation in favor of the plaintiffs, that nothing contained in his present decision shall operate to prevent the plaintiff's coming again into Court, in order to the establishment of their title to such portion of the estates as lawfully devolves on them.

The main pleas in appeal are, that Neeaz Ali himself avers that he has been pensioned, and lays no claim to possession, content with the provision assigned him, and that it is idle to say that Neeaz Ali's answer has been dictated by Sooltan Ali. In regard to the Principal Sudder Ameen's declaration that there exist other heirs of Nowazush Ali, the information on that head has been gathered, the appellants contend, entirely from the representation of the defendant Neeaz Ali. The point to be tried is, whether Sooltan Ali and Moutaz Ali held jointly after their father's death, and the appellants urge that the documentary evidence to this fact is ample, and that the Principal Sudder Ameen should confine his judgment to the points at issue between the parties. It is added that the lower Court has allowed separate costs for Neeaz Ali and Sooltan Ali, notwithstanding that their replies are to the same purport.

The Court collect from the record clear proof of the fact that the share claimed was held by Moutaz Ali, father of the plaintiff Syed Ali, up to the time of the death of Moutaz Ali, which event took place in 1249 Fuslee, or about 1842 A. D. In the tufreek thoke puttee drawn out on the 14th April 1838, it is recorded that Sooltan Ali appeared and said my brother Moutaz Ali and myself are in joint possession, and we will manage the malgoozaree jointly." This paper is signed by Sooltan Ali, Moutaz Ali, and the village putwarree. Again in the paper of mutation of names for 1249 Fuslee, it is set down that Syed Ali aged twelve years, Soojad Ali, aged two years, and Mussumat Jeeonee are the surviving relatives, viz. sons and widow, of Moutaz Ali. Further the kyfeeut column of the paper of changes