in the lumburdaree for 1251 Fuslee, contains the following: "Sooltan Ali is lumburdar; up to the end of 1250 Fuslee, the widow and sons of Moutaz Ali remained in possession, and the lumburdar has this year, (1251 Fuslee), assigned 93 beegahs 6 biswahs to the family of the late Moutaz Ali." Thus is completely refuted the statement of the defendant, Sooltan Ali, that his father excluded Moutaz Ali from the inheritance as well as Neeaz Ali, even if the fact of Nowazush Ali having associated himself at the Settlement of 1228 Fuslee, with Sooltan Ali were not, in itself, a sufficient indication, that it was not the intention of Nowazush Ali to invest Sooltan Ali with the sole proprietorship, but simply with the management of the family estate. As respects the hibbehnamah said to have been executed by Nowazush Ali, the Court remark that that document, when proved, would be adverse indeed to any claim which might be brought. by Neeaz Ali on the ancestral property, but proof of it is not essential to the support of a claim brought by the heirs of Moutaz Ali against Sooltan Ali. It is not necessary in the present action, Neeaz Ali not being a plaintiff, to determine the validity or invalidity of the hibbehnamah, but it may be observed incidentally, that the khewut papers drawn out in 1247 Fuslee, make mention of a hibbehnamah and of the allowance to Neeaz Ali in lieu of his share, and when to this it is added that Neeaz Ali has never been recognized at the Settlement, and that he himself allows that a pension was granted to him, the existence during the life-time of Nowazush Ali, and execution by him of an instrument similar in effect to the hibbehnamah, is scarcely open to question. The Principal Sudder Ameen has no authority whatever for asserting that Neeaz Ali admits the pension, because instructed to admit it by Sooltan Ali, and it was wholly beyond the province of the Principal Sudder Ameen to cast about him for impediments to a decree in favor of the plaintiffs, in the shape of possible claims, which are not advanced by distant collateral relatives. The share now demanded was held by Moutaz Ali up to the time of his death, which occurred within twelve years from the date of the suit; it was held by the heirs of Moutaz Ali for a short time after his death, until they were illegally ejected by Sooltan Ali. The title of the plaintiffs, therefore, to succeed to the share of Moutaz Ali under the general law of inheritance, is not to be resisted.

The Court, for the above reasons, reverse the judgment of the Principal Sudder Ameen, and pass a decree in favor of the plaintiffs.

CASE No. 54 or 1849.

(Regular appeal from the decision of Moulvee Abdool Azeez, Principal Sudder Ameen of Goruckpore, dated 23rd December 1848.

MUNOO LALL, (Plaintiff), Appellant,

versus

NUNDKISHORE, KALEE PERSHAD AND OTHERS, (Defendants), Respondents.

SUIT, for the recovery of Rs. 6,326-13-11, wasilát, of a fourth of mouzah Purtappore and other mouzahs, forty-one in number, from the 2nd kist of 1243 Fuslee, to the end of 1247 Fuslee, with interest.

The particulars of this case are as follows. The two parties of the defendants belong to the same family, and derive their inheritance from their grandfather. The family remained united up to 1835; but disputes breaking out between them in that year, the defendant, Kalee Pershad, and his party executed a deed of sale for a third of their shares in the family estates to the plaintiff, Munoo Lall, on the 31st October 1835. The deed was registered on the 6th September of the following year, and on the same date, application was made by the sellers to the Revenue office for a dakhil kharij, or registry of the transfer. The registry was not given until the year 1839, when the interests of the several parties in the property were defined by the Collector on the occasion of the general Settlement, and the purchaser obtained possession. Plaintiff now brings his action to recover wasilát, from the date of his deed of purchase to the several dates of registry n 1839, from the sellers and the other party, Nundkishore; on the ground that they had jointly obstructed his possession, and were answerable to him for his share of the intermediate profits.

The two parties of the defendants answered separately. The defendant, Nundkishore, raised the plea of limitation, and urged in the second place, that the deed of sale being for a portion of a share which had not been defined, and which the sellers were not at the time in possession of, could not entitle the holder of it to profits, prior to the dakhil kharij of 1839. The defendant, Kalee Pershad, and his party followed the same line of pleading. They declared that they were not in possession at the time of the sale or at any period between that date and the dates of the dakhil

kharij, and further pleaded that by a counterpart agreement executed by the purchaser the sale was made a conditional one, and that a balance of the purchase money was still due to them.

The Principal Sudder Ameen did not record any distinct opinion on the limitation plea or on the assertion of the defendant Kalee Pershad, in regard to the non-payment of the price in full. He was of opinion, that the intermediate possession of the sellers was not shown, and that the sale transaction remained incomplete until the dakhil kharij of 1839, and holding the claim to be without foundation, he dismissed the suit.

In appeal the same pleas and arguments have been renewed on both sides. The plea of limitation must be at once rejected. The suit was brought on the 13th November 1847, and the period of the wasilát sued for is therefore included within the prescribed term. In respect to the merits, the Court consider the Principal Sudder Ameen to be in error in holding the completeness of the transaction between the sellers and buyer to depend in any way on the dakhil kharij of 1839. The only points for consideration between these parties are, whether the sellers were in possession of the thing sold, and whether the purchaser fulfilled his part of the sale contract, or not. The circumstance of the sellers, as joint holders of an undivided property, not having had their shares defined at the time of the sale will not affect the question, if it be shown that the shares when defined, covered the interests sold by them, and the principle, which awards back profits to a claimant by inheritance, on the establishment of his right to a distinct share, against the party who dispossessed him, will equally govern the decision on this claim. The Principal Sudder Ameen has grounded his finding in regard to the dispossession of the sellers simply on the fact that up to the year 1839, they were contesting their rights with Nundkishore. A directly opposite inference might fairly be drawn from this circumstance, and the appellant's documentary evidence is in the Court's opinion sufficient to prove, that the respondent, Kalee Pershad, and his party did maintain a joint possession with Nundkishore up to that year. The present denial of the defendants is in effect a pleading against the honesty of their own acts in the sale transaction, and does not deserve further notice. Their assertion in regard to the non-receipt of the price in full is in the Court's opinion equally unfounded. Direct evidence for or against this point has not been adduced by either party, and could hardly have been expected after so long an interval, but the formal registry of the deed in 1836 followed by the application on the part of the sellers for the dakhil kharij, establish a strong argument in favor of the full performance by the purchaser of his part of the contract by that date, and the Court consider that the same date

will fix the date of the claim for wasilát demandable. In regard to the counterpart agreement pleaded by the respondents, the Court find that after the institution of this suit it was rejected by a judicial decision in another suit between the same parties. The same reasons will be of equal force in the case of the respondent Nundkishore. He has asserted throughout his possession and enjoyment of the profits singly up to the year 1839. The fact of a joint possession has now been found, and joint responsibility to the claim will necessarily follow, unless cause were shown for exemption, but so far from any special reasons being pleaded, the nature of the defence set up by the respondent, and the evident token which it affords of collusion with the other respondents, in order to defeat the claim, render him justly liable to a decree jointly with the other party. The Court consider that the appellant has established his claim against the respondents from the date of the application for dakhil kharij on the 6th September 1836, up to the several dates of the dakhil kharij in 1839, specified in the plaint. With regard to the wasilát account tendered in the lower Court, a general objection has been raised by the respondents, on the ground that complete jummabundee returns for the several years have not been filed, but the appellant has answered this objection satisfactorily by showing that the returns were not furnished to the Collector's Office before the year of the general Settlement, and it rested with the respondents to prove that the jummabundee for 1839, could not justly be assumed as the standard for the two years preceding, which they have failed to do. The appellant is not entitled to any interest up to the date of his suit in consideration of the delay in bringing it, and this portion of his claim is disallowed with reference to the decision of the Calcutta Court, 6th February 1836, Vol. VI.

A decree is accordingly given to the appellant in reversal of the decision of the lower Court for Rs. 2,372-12, and for interest from the date of suit to the date of realization, with proportionate costs.

CASE No. 123 OF 1851.

Special appeal from the decision of C. F. Thompson, Esq., Judge of Mynpoorie, dated 27th December 1850.

HURGOPAL, (Defendant), Appellant,

versus

BULBHUDDER PERSHAD, (Plaintiff), Respondent.

For the Judge's report of this case, see pages 77 and 78 of the printed decisions for zillah Mynpoorie for the past year.

A special appeal was admitted" to determine, whether the reasons of the Judge and Principal Sudder Ameen for refusing to recognize the proprietary right of the defendant in the baghs claimed by the plaintiff, are sufficient, or otherwise."

The Court cannot concur in the opinion expressed by the zillah Judge, in this case: the particulars of which are not quite correctly stated in the pleadings of the parties which speak of only one garden, of which the possession is disputed: whereas, it appears on reference to the defendant's ikrarnamah, that there are two gardens; viz., one comprizing 8 beegahs 8 biswahs, and the other 9 beegahs 3 biswahs. In the ikrarnamah taken from the defendant, by the Collector, on the occasion of the auction purchase, the first garden is distinguished by the words "Sewuk Teeka Ram, kayeth, be tour lawaris," the second, by the words " Bulbhudder Pershad, kayeth, be tour lawaris." Thus, it appears, indisputable, that the respondent, Bulbhudder Pershad was, at the time of the auction sale of the village, in actual possession of the two gardens: the Court cannot put any other construction on the fact of the respondent's name, and that of his deceased brother, Teeka Ram, being written opposite to them, although the additional words, "be tour lawaris," would seem to intimate some doubt as to the right of possession. Be this as it may, the Court hold, that the appellant, as auction purchaser of the " rights and interests" of the respondent is entitled to the possession of these two baghs, in common with all the other appurtenances of the zemindaree. The respondent by the act of sale, is divested of every interest theretofore enjoyed by him. The Court, accordingly, reverse the decisions of the Principal Sudder Ameen and Judge; and dismiss the plaintiff's suit with costs.