Page images
PDF
EPUB

The plaintiff maintains that on the 9th of January 1843 the defendants, Brijbullub and Brijruwun Dass, sold the mouzah to him, received payment, and delivered possession: that although the usual mutation of names in the Collector's books was prevented on one occasion by the objections of Baboo Jankee Dass, and on another by Niamut Beebee, they nevertheless continued to exercise all the rights of proprietors in the land which they had purchased: that during the moostajiree of Dwarka Dass, they retained possession of the sayer: that the village was subsequently sold at auction in satisfaction of a decree held by Niamut Beebee against the original owners Brijbullub and Brijruwun Dass, and purchased by the defendant Balmookund that the Revenue Authorities, in spite of plaintiff's remonstrances, put Balmookund in possession of the village, and that an appeal to the Civil Court has thus become unavoidable.

The defendant, Balmookund, after advancing some technical objections, pronounces the alleged deed of sale to be collusive: he denies that any purchase money was ever paid, and asserts that the plaintiffs have never been in possession.

The other defendants did not appear.

The Principal Sudder Ameen records his opinion on the main point at issue in the following terms.

"It appears there are no less than eight witnesses, including the writer, who have subscribed their names as witnesses to the deed of sale. The plaintiffs, however, have produced only two in this Court, whose evidence is not sufficient to prove the same; had he produced the others, a searching examination would have been made from them respecting the same. In the absence thereof, and from what other witnesses have deposed, there is every ground to apprehend that the deed in question is not genuine and executed with good faith. On the contrary, it is evident, as may be gathered from the features of the case, and what the witnesses of the defendants have deposed, that it was executed with the object of defeating the execution of the decree of Niamut Beebee. This being the case, the deed in question cannot but be considered in a collusive light."

The deed is genuine, but the Court agrees with the Principal Sudder Ameen in thinking that it was not executed in good faith. There are several very suspicious circumstances connected with the deed besides those noticed in the decree of the lower Court. Niamut Beebee's decree, in satisfaction of which the auction sale to Balmookund took place, is dated 25th February 1841, two years before the execution of the alleged deed of sale: and if, as plaintiff states in his appeal, the amount of Niamut Beebee's decree was so small, it would have been easy, as well as honest; to pay it from the proceeds of the sale to the plaintiffs.

The deed is dated 9th January 1843, and it was not registered till the 11th March following. A circumstance of no great weight by itself, but deserving of notice when considered in conjunction with the rest of the case. The defendant explains the delay by declaring that the deed was antedated, and he adduces a strong argument in support of his declaration. The signature of Ramsurn, putwarree, is attached to the deed as one of the witnesses to the execution in Benares, whereas there is with the misl the report of the Nazir of the settlement office, dated 9th January 1843, stating that Ramsurn was then in attendance at the settlement cutcherry in Ahrorah, a town said to be from one to two days journey distant from Benares. Of this circumstance no explanation was offered by the plaintiff, appellant.

The settlement of mouzah Jungle Mehal took place subsequently to the alleged execution of the deed, the wajib-ul-urz having been given in on the 13th January 1843. The furd putteedaree was drawn out in the names of the sellers Brijbullub and Brijruwun Dass, and other steps in the settlement were taken, all being subsequent to the 9th January 1843, yet, throughout the whole proceedings, not one word is to be found in regard to the sale of the whole village, which, according to the plaintiffs, had taken place only a few days before. If the sale had really taken place as described, and had been a bona fide transaction, the Court is satisfied that some mention of it would be found in the settlement proceedings.

In explanation of the absence of six out of eight witnesses, whose names are on the deed, the plaintiff, appellant, states, that two have been gained over by the respondent, and that subpoenas were issued for the remaining four. This is hardly satisfactory, and the respondent, in commenting upon the explanation, observes, that as regards the two, appellant has given a very bad reason for their absence, and, as regards the four, no reason at all.

The appellant finally complains that the Principal Sudder Ameen has taken no notice of his twenty-two documents. On examination, it appears that seven are copies of depositions taken in the miscellaneous department; five are receipts for payment of revenue given to the sellers, not to plaintiff; two are the gabala and receipt upon which the present suit is founded; and the rest are roobakarees, petitions for dakhil kharij, and a jumma khurch of the disputed village. These are not documents which require more notice than the Principal Sudder Ameen has taken of them, most of them not bearing upon the issue, or proving that which is not denied by the opposite party.

Under these circumstance, the Court dismisses the appeal, and upholds the decision of the Court below.

The 5th February, 1851.
Present: H. W. DEANE, Offg. Judge.

CASE No. 20 or 1851.

Regular appeal from the decision of
Abdool Azeez Khan, Principal
Sudder Ameen of Goruckpore,
dated 24th October 1849.

PURMESUR DUTT DOOBE, (Plaintiff), Appellant,

versus

RANEE INDERBASS KOOREE, (MOTHER AND GUARDIAN OF RAJAH OODENARAIN MULL, A MINOR,) AND OMER SHUNKER,

surburakar, (Defendants), Respondents.

THE plaintiff sued in the lower Court to recover a sum of Rs. 5,000, with interest amounting to Rs. 5,000 more, on a bond asserted to have been executed in his favor in the month of Koar 1244 Fuslee, on a date corresponding with the 22nd October 1836.

The substance of the plaint is, that the plaintiff and his father having long had money dealings with the defendant, the accounts between them were adjusted, and a bond executed on the date abovementioned, for the payment of Rs. 5,000. The estate of the defendant was placed under the management of the Court of Wards, and on the 4th May 1837, the plaintiff represented to the Collector the existence of this debt; the then surburakar, however, Simboo Nath, denied that any money was due to the plaintiff, and the Collector, on the 20th November 1837, disallowed the plaintiff's title to be recognized as creditor; whereupon, in 1848, or eleven years afterwards, the plaintiff comes into Court for the recovery of the sum due to him, with interest.

On the part of the defence, it is urged, that the bond before the Court was not executed by the defendant Ranee Inderbass Kooree, and that no money was advanced by the plaintiff. It is admitted that Dooleen Soondur Buksh Kooree, the mother of Tej Mull, the Ranee's late husband, gave the plaintiff a bond in the name of the plaintiff's son, for which, however, no consideration was at any time received. It is pleaded that on a petition to the Collector by the surburakar, on the 4th July 1837, praying that the plaintiff's father be sent for and examined on the subject of this bond, the plaintiff's father absented himself on various pretexts, and at length the Collector, in November 1837 formally disallowed the claim, and it is contended that if the plaintiff had been possessed of any rightful title to recover, he

would not, after this refusal by the Collector, have suffered so long a period to elapse without preferring his claim in a Court of law.

The Principal Sudder Ameen, in what appears to me to be a very satisfactory payment, dismissed the plaintiff's suit. He comments at some length on the internal evidence that the bond is not genuine. It purports to be drawn out, he observes, at Mejowlee, the place of residence of the Ranee, yet nevertheless, the persons attesting it are none of them inhabitants of that place, or in any way connected with the Ranee's affairs: the writer of the bond is unknown: of the four attesting witnesses, one of them, Toola Ram, is dead, and the three others, upon their own showing, met by mere accident at Mejowlee, and were invited by the Ranee, who knew little or nothing of them, to verify a bond for a large sum of money: the witness Ram Buksh Singh resides sixteen koss from Mejowlee, another witness, Seetul Dan Singh, twenty-four koss from it: but besides all this, it is proved (the Principal Sudder Ameen continues) that on the 24th September 1836, Ram Buksh Singh was sent by the Police Officers to the Magistrate of Goruckpore on a criminal charge, in company with Seetul Dan Singh, as a witness in the said criminal matter; that on the 4th October 1836, Ram Buksh Singh was ordered to find security for his appearance at the Magistrate's Court, which order was not complied with until the 20th October; it is most improbable, therefore, that he should have been present at Mejowlee, twenty-four koss from Goruckpore, on the 22nd, attesting a bond between parties with whose affairs he had nothing to do. Moreover, that plaintiff himself is shown to have been summoned by the Magistrate on a hookumnamah of 21st October 1836, and to have been reported present by the nazir on the 24th; as little likely is it, therefore, that the plaintiff's account should be true, as that of the witness abovenamed, since, in order to believe it, it becomes necessary to suppose that the plaintiff was at Mejowlee on the 22nd, at his own home, three marches off, the day after, and on the 24th at Goruckpore, distant ten or twelve koss. The Principal Sudder Ameen further remarks on the fact that when the surburakar, Simboo Nath, made out a list of creditors, and explained to the Collector that the mother-in-law of the Ranee had really executed a bond but had received no money in consideration of it, the party holding the bond, on being summoned, did not attend, but absconded; and it is pointed out by the lower Court, in conclusion, that there is a manifest want of congruity between the Ranee's seal and hand-writing on other papers, and the seal and handwriting on the bond presented on this occasion.

The arguments put forward in appeal are weak in the extreme. It is urged, that as the defendant admits that a bond was executed

by her mother-in-law, the receipt of the money must be taken for granted. The answer is, that the bond before the Court is not admitted by the defendant, her admission referring to a bond written by another person, for which no money was received. It is said likewise, that the presence of the attesting witnesses, at Mejowlee, on the 22nd October, was not, even on the assumption that all which has been advanced by the Principal Sudder Ameen is correct, physically impossible; and that when a bond has been duly proved in evidence, as this has been, the party claiming upon it is entitled to a decree. To reasoning of this sort it is enough to reply that the point at which rational credulity stops lies far short of the preternatural, and that we justly refuse our assent to relations of which no more can be said than that they are extravagantly improbable; and that it is because the Principal Sudder Ameen considered the bond to be not duly proved in evidence, and had it in his power to assign reasons of weight for discrediting the testimony tendered to him, that he rejected the claim. I dismiss the appeal, with all costs.

The 5th February, 1851.

Present: H. LUSHINGTON, Judge.

CASE No. 252 or 1849.

Regular appeal from the decision of
Qazie Yar Ali Khan, Principal Sud-
der Ameen of Jounpore, dated 22nd
October 1849.

SHEO GHOLAM SINGH, (Plaintiff), Appellant,

versus

HAJEE IMAM BUKSн, (Defendant), Respondent.

THE plaintiff claims to obtain possession of half of talooqua Sunohee, by redemption of the mortgage held by the defendant. The plaintiff states that the defendant holds the disputed half of talooqua Sunohee under a deed of conditional sale, or mortgage, executed in his, defendant's, favor, by the original proprietors Ramsurn Singh and others; but he, plaintiff, has now purchased at auction the rights and interest of the owners of the mortgaged property, and, as a legal representative of the mortgagers, claims to redeem the mortgage.

The defendant replies that the deed under which he holds, dated 27th December 1826, is not a deed of mortgage or conditional sale, but one which conveys to him the whole rights of the original proprietors.

« PreviousContinue »