RAJA SAHIB PRAHLAD SEN Vs. BABOO BUDHU SING

JUDGEMENT

(1.) Their Lordships have now to dispose of five appeals in which the same person, Raja Prahlad Sen, is an actor, being in four of them the appellant, and in the fifth the respondent. Though the cases are not otherwise connected with, or dependent on, each other, it will be convenient to state certain facts relating to the Raja and his title which are common to all. He is now in undisputed possession of the Raj and zamindari of Ramnagar, the title to which was in litigation from 1835 until 1858. He originally sued for them as guardian on behalf of his infant son under a deed of gift; they were at the same time claimed by Run Mardan Sen as a son of the former Raja, Amar Pratap Sen, and by other parties, under different titles. Ultimately the right of succession of the present Raja as the nearest collateral heir of Amar Pratap Sen was declared by a decree of the Zilla Court dated the 27th of February 1845, and that decree was affirmed on appeal by the Sudder Court, on the 9th of September 1846. From that date the litigation was confined to the Raja and Run Mardan Sen, who alone preferred an appeal to Her Majesty in Council, which was finally determined in the Raja's favour, in January 1858. The estate was in the possession of one of the widows of Amur Partab Sen from the time of his death in 1834, until February 1840, when she died. The Collector of the district was then directed to keep it under attachment until the title to it should be determined in the pending litigation. After the Sudder Court's decree in 1846, an order was made that the Raja should be put into possession on giving security to abide the event of the appeal to England, but owing to delays in perfecting that security he did not obtain actual possession until June 1848. The security afterwards failed; the Raja was unable to give fresh security to the satisfaction of the Courts; an order was made on the 18th of May 1854, that the property should again be attached by the Collector; and it remained under attachment from that time until possession was restored to the Raja in 1858, upon the determination of the appeal in his favour. Having stated these facts and dates, their Lordships will proceed to deal with the several appeals in their order, beginning with that in which Budhu Sing is respondent. The suit, out of which this appeal has arisen, was brought to recover from the appellant (the Raja) possession of a four-anna share of certain specified property, comprising the whole, or a very considerable part of the zamindari of Ramnagar. The original plaintiff was a Mussulman lady, claiming to be, at least for the purposes of the suit, the sole representative of her late husband, Sultan Jan, who was the sole representative of one Kaja Hossein Ali Khan. After the institution of the suit she sold all her interest therein to the respondent, who has been substituted as plaintiff on the record, and may be taken to have all the rights in the subject-matter of the suit which could have been successfully asserted either by Kaja Hossein Ali Khan, or by Sultan Jan.

(2.) His title is founded on a kabala, or bill of sale, of the property in dispute, which is admitted to have been executed to the Kaja, by the appellant, on the 23rd of September 1844, and therefore at a time when the latter neither was in the possession of the zamindari, nor had established in any Court his title thereto. The case of the respondent is that this bill of sale expresses the real contract between the appellant and the Kaja, which was one for the absolute sale by the former and purchase by the latter of a four-anna share of the specified property, for the price of 75,000 rupees, and that that sum was actually paid down in cash when the instrument was executed.

(3.) The case of the appellant is, that being in want of funds to carry on his suit for the Raj and zamindari, and for his own support, he applied to the Raja, who agreed to make advances for those purposes on condition of having the bill of sale executed, registered, and duly notified in the pending suit; that no part of the expressed consideration or sum of 75,000 rupees was paid on the execution of the instrument; and that though the Kaja, from time to time, advanced small sums of money, the whole amount of his advances fell far short of 75,000 rupees; that afterwards the Kaja absconded from Patna on a charge of disaffection to the Government, whereupon it was agreed between his son, Sultan Jan, and the appellant, that a bond for 76,000 rupees, hypothecating the whole of the property in question, and not merely a twelve-anna share of it, should be substituted for the instrument importing the absolute assignment of the four-anna share; and that, accordingly, such a bond was executed by the appellant to Sultan Jan on the 7th of March 1846; but that the 76,000 rupees was merely a nominal consideration, of which no part was paid, the real contract being one to secure moneys already advanced with future advances which Sultan Jan undertook but failed to make.