The first point for determination, in disposing of the appeal, is, whether the money was paid by the plaintiff to Jumna Dass at the time of executing the deed of sale, as is contended by the plaintiff, or not. If it was, it will then be necessary to enter upon the objections in defence in regard to the sufficiency of the mookhteearnamuhs, and the extent of the interest sold. If it was not, these objections are not reached, and the consideration of them is superfluous.

The plaintiff asserts that Rs. 800 were paid to Jumna Dass, at the time of executing the deed, in presence of certain witnesses, and that the deed so executed was verified by certain other witnesses at the Registry Office. The defendant, Jumna Dass, denies the payment of any money.

I am satisfied that Jumna Dass received no money from the plaintiff. It is altogether unlikely that the plaintiff, a pleader in a native judicial Court, and consequently familiar with fraud in every shape, should part with his money to the seller, simply on the execution of a deed of sale, before the deed was registered, before any attempt was made to effect the usual substitution of names in the Revenue Office. The witnesses, who verified the sale deed at the Office of Registry, state, that payment was not made in their presence. There is strong reason to think that these persons attested the execution of the deed as well as verified it at the Office of the Register, and that, therefore, if the money had been paid, as said by plaintiff, it must have been paid while they were present. There is reason to think this, because the name of one of the witnesses to the Registry, Hurjee Mull, is written exactly in the place in which it might be expected to appear, viz. in the very beginning, if Hurjee Mull had been the first to attest the execution of the deed; whereas he had not been then present, but had verified the deed at the Registry Office only, as is asserted on the side of the plaintiff, his name would appear at the end of the list of names. Again, it is most improbable that the plaintiff, provided as he was, by his own account, with abundant evidence to show that the money had been paid, should not have resented to the Register of Deeds two witnesses, who could speak to that fact, instead of two witnesses who could not depose to it, and his meeting with whom at the Registry Office would not even appear to have been pre-arranged. And the improbability is heightened by the circumstance, that some of those before whom the plaintiff states the money to have been paid, were, as appears in evidence, actually present in Court at the time of verifying the deed before the Register, and yet were not called by the plaintiff. I consider the rejection of the claim to be just, and dismiss the appeal.

SALIKRAM AND OTHERS, (Defendants), Respondents.

CLAIM, to establish the right and title of Bhugwan Dass to eight biswahs of mouzah Wyseree, and to sell the same in satisfaction of a decree had against Bhugwan Dass. The suit is valued at the amount decreed to the plaintiff in his suit against Bhugwan Dass, viz. Rs 5,535-9-6.

The plaint shows that a twelve-biswah share in the above mouzah belongs to zemindars of the rora caste, and an eightbiswah share to byragees. Bhugwan Dass, against whom the plaintiff got a decree, is represented to have possessed the eight biswahs. His gooroo, mahunt Mungul Dass, two years before his death, made his chela, Bhugwan Dass, proprietor. Mungul Dass had on several occasions borrowed from Beharee Lall and Ramsuhae, bankers, money for expenses of the religious institution of which he was trustee, on the security of these biswahs. Bhugwan Dass' chela took upon himself the debts of his gooroo. When Bhugwan Dass became himself mahunt, he too borrowed money in a similar way for similar objects. The soukars having shown some impatience for their money, Bhugwan Dass mortgaged the eight biswahs for Rs. 3,000, writing a formal deed of mortgage. He paid, out of the money advanced to him, Rs. 1,900 to the mahajuns, and retained Rs. 1,100 for the expenses of the faqueers. Bhugwan Dass deprived the plaintiff of the occupancy of the property, whereupon the plaintiff sued Bhugwan Dass, and, on 14th December 1848, obtained a decree against him. Bhugwan Dass died, and when the plaintiff put his decree in execution, and sought to bring the property to sale, the defendants came forward as objectors. The Principal Sudder Ameen, on 19th June 1849, passed an order, in the miscellaneous department, to the effect, that the Settlement ikrarnamah described the property to be mal wuqf, not transferable by sale or mortgage; and he directed that the attachment be taken off. The decreeholder appealed summarily, but without success. It is contended,

by the plaintiff, that the eight biswahs were the property of the person cast in the suit, that the money was borrowed for religious purposes, and that when money is lent on the security of a particular property, the lender, on obtaining a decree, must necessarily have the power of bringing the property to sale. The mortgage deed was attested by two of the very persons who are now oozurdars, and one of them verified the deed at the Registry Office. It is clear, therefore, that the expenditure of the money by the mahunt was approved by the community, and that those who now object assented to the mortgage transaction. The plaintiff took all requisite precautions, a formal deed having been executed, and registered and witnessed by other persons as well as by the objectors. In regard to the plea that the Settlement does not invest the mahunt with the power of alienation, that plea may be met in two ways: 1st, the mortgage took place in March 1845, and the ikrarnamahs of Settlement are dated subsequently, in 1847 and 1849; had the ikrarnamahs been of prior date to the mortgage, the plea might have been of force:-and 2nd, previously to the ikrarnamahs no paper can be produced, which will show that alienation by a mahunt for requisite expenses is unlawful. The maaffee of the village is an istumraree tenure at the will of the ruling power; and the biswahs in dispute were purchased by a mahunt. There is no sunnud showing the mortgaged property to be mal wuqf.

The defence, after certain technical objections, which need not be set forth at length, proceeds to point out that the purchase of the eight biswahs having been made for the service of a temple, they cannot be sold or otherwise alienated, being mal wuqf, the mahunt for the time being having bought the zemindaree right in the biswahs, with the object of devoting the proceeds to religious service. The biswabs did not belong to Bhugwan Dass in such manner as to entitle him to make any disposal of them in mortgage. No money was ever borrowed from bankers, formerly, on the security of this land. That plaintiff, in collusion with Bhugwan Dass, executed a mortgage for the purpose of injuring the body of faqueers, and fraudulently entered the names of the oozurdars, as witnesses to the transaction. The defendants protested against the verification of the mortgage deed. Then, as to the fact that the mortgage deed is prior in point of time to the Settlement ikrarnamahs, it is answered, that the Collector, having ascertained the land to be mal wuqf desired Bhugwan Dass to write the ikrarnamah. There was no mahunt after the death of Mungul Dass, and Bhugwan Dass was nominated mahunt at the Settlement. He could not mortgage as mahunt before his accession to that office. The disputed biswahs were bought with the proceeds of the istumraree tenure, and belong to the temple,

and whatever belongs to a mosque or temple is inalienable, the mutawullee, or mahunt, having control over the expenditure, and no further authority whatever.

The Principal Sudder Ameen has observed that the defence makes out the property to be mal wuqf, the proceeds being devoted to faqueers. The point to be determined is, therefore, were the eight biswahs the property of Bhugwan Dass against whom the decree passed, and could he legally sell or mortgage them, or are those biswahs strictly mal wuqf? The lower Court held that they are, and that the evidence shows that they were not purchased either by Bhugwan Dass or the former mahunt, Mungul Dass. It is clear to the Principal Sudder Ameen, from the Collector's roobakaree, that the biswahs are mal wuqf, the inalienable property of a temple. The proceeding of the Collector, under date 15th April 1841, shows that the tenure is istumraree, for the support of a temple, and since the land cannot be con sidered the private property of the individual against whom a decree has been had, they may not be brought to sale. The assertion by the plaintiff, that debts contracted by a former mahunt were paid with part of the mortgage money, does not help the plaintiff's case. Two defendants, Salikram and Kesho, admitted the claim, after this manner; they agreed to pay from the proceeds Rs. 350 per annum, but such an admission cannot be taken into consideration, as what the plaintiff contends for, is the right to bring the biswahs to sale as the property of Bhugwan Dass. Moreover, (the Principal Sudder Ameen remarked) the two defendants, who made the admission, have no special con nexion with these biswahs, but are in the same position as the faqueers of the temple. Whenever an attempt is made to sell mal wuqf, it is open to every party interested to put down the attempt. The lower Court dismissed the claim.

It is pleaded, in appeal, that there are two distinct kinds of right in the mouzah: the istumraree of the whole 20 biswahs, and the zemindaree right in 20 biswahs, of which latter, an eightbiswah share was bought with the money of Mungul Dass, and came by inheritance to Bhugwan Dass. The plaintiff does not desire to sell the istumraree: the roobakaree of the Collector of 15th April 1841, has no reference whatever to these eight biswahs. The Principal Sudder Ameen has confounded the istumraree tenure with the zemindaree title, acquired by purchase. There is no mention of these eight biswahs in the Collector's roobakaree, and the ikrarnamah of 5th December 1847, will not suffice for the defendants' purpose, seeing that the mortgage took place in 1845, that two of the defendants, Salikram and Ramkishen, witnessed the deed, Salikram verifying it at the registry office: it is evident, therefore, that the declaration, two years afterwards,

that the property is mal wuqf, was made solely with a view to injure the plaintiff. The appellant adds that a confession of judgment, in whatever terms couched, or of whatever nature, ought to be acted on, and the defendants, Salikram and Kesho, have agreed to pay Rs. 350 per annum from the proceeds of the biswahs; the plaintiff did indeed sue with the object of bringing the biswahs to sale, but all he desires is, to get the money due to him.

The Court find, from the record, that two distinct descriptions of right have long existed in the mouzah, an istumraree holding of 20 biswahs by the byragees, for the support of a religious institution, and a zemindaree holding of 20 biswahs, with the customary rights and privileges of proprietors, by the remaining portion of the community. In coming to a decision in the case, the Principal Sudder Ameen has not been careful to view these two kind of rights separately, but, in apparent ignorance of the subject, has blended and confounded the two together. He points to the Collector's roobakaree of 15th April 1841, as showing that the disputed property is mal wuqf, but that roobakaree refers to the istumraree tenure only, not at all to the contested eight-biswah share. It is admitted by the defendants that mahunt Mungul Dass purchased the share from the zemindars, with the common money of the corporation, and the Court find that Bhugwan Dass, as successor of Mungul Dass, and trustee of the institution, bona fide executed a mortgage of the eight-biswah share to the plaintiff. There were four defendants in the lower Court, Bunsee Dass, Salikram, Ramkishen and Kesho Dass. Of these, Bunsee Dass, is dead; Salikram and Ramkishen attested the mortgage deed executed in the plaintiff's favor; and Kesho Dass, though he does not appear to have taken an active part in that transaction, gave in, in conjunction with Salikram, an ikbal davee in the lower Court, expressive of his readiness to satisfy the plaintiff by a fixed annual payment. The assent therefore of the parties interested in the transaction is sufficiently made out, and there can be no reason why the plaintiff should not bring to sale the eight-biswah share in satisfaction of his decree, unless there be proof of the plea that the share being mal wuqf is inalienable. The Court hold this plea to be not substantiated. The eight-biswah share forms no part of the original endowment, which will still retain its entirety if the share is transferred by sale: there is no wuqfnamah or record of an endowment, as respects the disputed share, prior to the date of the mortgage. It is obviously nothing to the purpose that the byragees intimated to the Collector in 1847, or two years after the mortgage, that the property is mal wuqf, for such intimation at such a time can only be looked upon as a fraud, whereby the plaintiff's lien on