some land, also, had been given by Ameen-ood-dowla to Mussumat Jeeraj, a coutezan, on which alienation being objected to by Daneshmund Khan, a brother of the plaintiff, the female in question instituted a suit in Court, and obtained a decree for the land: other instances of alienation of portions of the grant might be given, but the above were sufficient. The Lieutenant Governor had, in a communication to the Governor General, expressed an opinion adverse to the right of alienation, but the Governor General took a different view of the question. Esur Dass and the other defendants, who had purchased several of the villages at public auction, filed replies to the same purport as that of Jograj. The Principal Sudder Ameen decided, that the dower of the defendant, Zumaniya Begum, had been fixed, at the time of her marriage, at 5 lacs of rupees. This he considered to be proved by the oral testimony adduced, although no documentary evidence to the fact was forthcoming; also, that she was entitled to retain possession of the estate of her deceased husband till her dower was paid. He further admitted her claim to one-fourth of the property as the widow of the late incumbent: he overruled the plea of the plaintiffs, as to the invalidity of the marriage, in consequence of the one party being a sheea and the other a soonnet. At the same time, he recorded his opinion, that the wuseeuenamah filed by Zumaniya Begum was not proved: that it had been executed at a time when the Nuwab was not in possession of his faculties, he dying only five days after its execution, from the effects of a severe illness: there was reason to suspect that his seal was surreptitiously affixed to the deed, which, moreover, was attested by the servants of Zumaniya Begum, and connections of Futteh Ali Khan, her mookhteearkar. With respect to the villages in possession of the defendant, Jograj, the Principal Sudder Ameen held, that the transfer was valid, and that his possession could not be disturbed till the mortgages should be redeemed; and, in support of this opinion, he quotes Section 15, Regulation XXXVI. of 1803: and referred to the correspondence which took place between the Lieutenant Governor and Governor General in 1842, relative to the jageer of Hafiz Ruhmut Khan, in the Bareilly district. On that occasion, the Lieutenant Governor proposed that a law should be passed, declaring that the incumbents, for the time being, did not possess the power of alienation beyond the period of their own lives; but a reply was received from the Governor General under date 14th February 1842, (filed by the defendant Jograj) expressive of his opinion, that very serious objections would exist to the enactment of such a law; and that it was inexpedient, on principle, to provide for private property of this description, any rules not applicable to all other private property, in the rents of land. A similar decision, relative to the

maaffee tenures of Kuramut Khan, in the Shahjehanpore Zillah, was come to in the year 1845. The decision of the Sudder Court, North Western Provinces, quoted by the plaintiffs, the Principal Sudder Ameen did not consider relevant to the present case, as, in that instance, there was a special proviso in the grant, that the property should descend, undivided, to the head of the family, for the time being. The pleas urged by Jograj, the Principal Sudder Ameen considered to be equally applicable in respect to the villages held by the defendants Esur Dass and others, the auction purchasers in execution of decrees passed against the deceased Nuwab, and he observed that it was singular that the plaintiffs, who now objected to the alienations made by the deceased Nuwab, should have acquiesced in the previous alienations made by the same person in favor of Ameer Begum and Nuwab Begum, as well as in those in favor of their own relatives. The practice of alienation is, therefore, clearly established for a period of thirty years. The only difference between the case of the jageer of Hafiz Ruhmut Khan in the Bareilly district and the present is, that the grants in the former were made, originally, by Nuwab Asoof-ood-dowla, and in the latter by Nuwab Moozuffur Jung. For the above reasons, the Principal Sudder Ameen dismissed the plaintiffs' claim, allowing the defendant, Mussumat Zumaniya Begum, to retain possession, permanently, of quarter of the property, being her share, as the widow of Mohumed Hussun Ali Khan, and of the whole property in her possession until such time as her dower should be paid: the possession of defendants, Jograj, Esur Dass, and others, were in like manner declared valid against the plaintiffs' claim, with reference to the deeds of mortgage and sale, which conferred their titles. With this decision both parties were dissatisfied and appealed: the plaintiffs generally, and Mussumat Zumaniya Begum, defendant, because the wuseeutnamah filed by her had been discredited.

The Court concur in the propriety of the Principal Sudder Ameen's decision in every point, except that of the dower of the defendant Zumaniya Begum, which the Principal Sudder Ameen considers to be proved to have been fixed at 5 lacs of rupees. The majority of the Court are not satisfied with the evidence adduced by Zumaniya Begum on this point. The principal witnesses to the fact are the Begum's own dependents: she can produce no documentary evidence in support of her assertion, and the Court are not disposed to believe that, had such a large dower been assigned to her, there would not have been some written evidence to the fact, seeing that her marriage is of recent date, when the value of documentary evidence in such matters was perfectly understood. But the falsity of this part of her claim is made more palpable by the fact of the Begum's own brother and mookhteearkar having, in a

petition presented by him to the Principal Sudder Ameen, in the year 1845, represented his sister's dower to be one and a quarter lac of rupees, instead of five and a half lacs, as it is now stated to be. The Begum's brother cannot be supposed to have been ignorant of so important a matter, appertaining to his sister's affairs, and the only conclusion the Court can draw from this very gross contradiction is, that both statements are equally untrue. This conviction is strengthened by the nature of the evidence produced by the plaintiffs, including the testimony of the Qazie who performed the marriage ceremony; from which it appears that no sum was specified as the Begum's dower. The majority of the Court agree with the Principal Sudder Ameen in finding that the defendant, Zumaniya Begum, is entitled to one-fourth of her late husband's property, both real and personal. It is shown by the numerous futwas filed in the case, that the Begum, as a soonnee, is entitled to the benefit of the law of her own sect, and were there any doubt on the subject, the Court would not hesitate to recognize the soonnee law of inheritance being that of the defendant, on the principle recognized in Clause 2, Section 6, Regulation V. of 1831. The Court entirely concur with the Principal Sudder Ameen in discrediting the wuseeutnamah filed by Zumaniya Begum. The circumstances, under which this document was prepared, are most suspicious. The late Nuwab, at the date of its execution, may reasonably be supposed to have been incapable of duly executing such a document. He was on his death-bed, and died within five days from that date; and the Register of Deeds, when the document was brought to him for registry, refused to register it, being of opinion that its execution was not satisfactorily proved. It may be observed, with reference to this deed, that its fabrication tends to throw very strong suspicion on the oral evidence produced by Zumaniya Begum, in proof of her dower; for, if she and her friends did not hesitate to utter a forged will, little or no dependence can be placed on the oral evidence adduced by them. The wuseeutnamah has a great number of marginal attestations, both seals and signatures; but it is worthy of remark, that only five of the witnesses were examined by the Political Agent, and those are the dependents or relatives of Zumaniya Begum. Moreover, although the deed professes to hypothecate the whole of the Nuwab's property for the payment of the Begum's dower, yet strange to say, the amount of the dower itself is not specified in the deed: an omission altogether inexplicable in such a document: neither do the Court understand how the Nuwab, having already mortgaged a considerable portion of his estate to the defendant, Jograj, could (as the deed purports,) re-assign that very portion to his widow. The whole transaction bears a frau

dulent and unreal aspect. In regard to the very important question involved in this case, as to the late Nuwab's right of absolute and irrevocable alienation of the property, the Court concur in the view taken by the Principal Sudder Ameen. They have attentively considered the terms and tenor of the sunnud bestowed on the original grantee, the Nuwab Ameen-ood-dowla, of which alone a copy has been filed by the plaintiffs, and can discover in it no proviso, which takes it out of the category of grants described in Section 15, Regulation XXXVI. of 1803. The words altumgah, nuslan bad nuslan, and butnun bad butnun, are to be found in it, and sunnuds thus worded are declared by the section above quoted to be "hereditary tenures," and "transferable by gift, sale, or otherwise." To restrict, or in any way modify the terms of that Section, would have the effect of placing these grants on the same footing as those referred to in Clause 6, Section 2 of the Regulation, by which the incumbents are prohibited from "selling or otherwise transferring them or mortgaging the revenue of the land, for a longer period than their own lives." It is quite clear that the several incumbents of this tenure have hitherto regarded themselves as having full right to alienate the same, without reference to the reversionary interests of the other members of their family; that such alienations have frequently been made without advertence to the ordinary laws of inheritance, and without any objection on the part of those who were interested in opposing the alienations. The Court cannot recognize the distinction attempted to be drawn by the plaintiffs between transfers to members of the family and those to strangers, and, moreover, it is apparent that, in the case of the transfer to the courtezan, Jeeraj, even this plea is not available. The Court have not overlooked the correspondence on the subject of grants of this description, which has passed between the Lieutenant Governor and the Governor General; and although, in disposing of cases coming before them judicially, they do not of course consider themselves bound to adopt the construction put on its grants by the Government, they are always most ready to pay due attention to the arguments put forth by such high authority, even though their own conclusions may be different. But, in the present instance, they find that the opinion of the Supreme Government, as to the unfettered character of these grants, is in accordance with their own. It does not follow that because a grant is conferred on a particular individual for the support of his family, he may not alienate it out of the family. To justify such a construction, there must be a restrictive clause in the sunnud. To rule, generally, that such alienations may not be made, would be unjust to those persous who have, from time to time,

advanced their money to the incumbents, for the time being, for the benefit of themselves and families, under the assurance that the possessors for the time being had the uncontrolled disposal of the property thus transferred. The plaintiffs' argument, that the auction purchasers, Eesur Dass and others, cannot claim possession beyond the life of the late Nuwab, under the conditions of the sale, is not tenable. It is true that two Judges of this Court, by a proceeding in the miscellaneous department, did express an opinion adverse to the incumbent's right of alienation beyond the period of his life; but, eventually, it was ordered, that the actual rights and interests (huq morafiq) of the incumbent should be sold: and it now rests with this Court, by a formal decision in a regular suit, to determine what those rights were, and the view now taken by them is, that the transfer is absolute and irrevocable.

The Court accordingly, in modification of the decision of the Principal Sudder Ameen, decree that the plaintiffs are entitled to possession of three-fourths of the property left by their brother the late Nuwab Mohumed Hussun Ali Khan, with exception of that portion which is in possession of the defendants Jograj, mortgagee, and Eesur Dass and others, auction purchasers, the remaining one-fourth being the right of the defendant, Zumaniya Begum, as the widow of the late Nuwab. The plaintiffs and the defendant, Zumaniya Begum, will retain, of course, the right of redemption of the mortgaged portion of the property. The plaintiffs will pay the whole of the costs of the defendants Jograj and others, the mortgagee and auction purchasers, and the costs between themselves and the defendant, Zumaniya Begum, will be charged rateably according to the proportion of their claim decreed and dismissed.

CASE No. 58 OF 1850.

{

S. S. BROWN, Offg. Judge.

Regular appeal from the decision of J. Mercer, Esq., Principal Sudder Ameen of Furruckabad, dated 4th March 1850. NUWAB MOHUMED HOOSSEIN ALI KHAN AND NUWAB MOOBARUKOON-NISSA BEGUM, (Defendants), Appellants,

versus

EESUR DASS, (Plaintiff), Respondent.

THIS suit is connected with the case No. 59, this day disposed of, in which the two defendants, (appellants) were plaintiffs, and