RANDHIR SINGH Vs. UDIT NARAIN SINGH

JUDGEMENT

(1.) The plaintiff in this case, Diwan Randhir Singh, is a landed proprietor, residing in the Jhansi district. Amongst his property we find certain, land in a village called Kerokhar, held by him, in what is described in this record, as an ubari tenure. We should have preferred to find on the record a little more evidence regarding the precise nature of this tenure and the conditions lo which it is subject. It would seem, however, that the tenure is something of the nature of a special grant from Government and that it is subject to resumption by Government under possible conditions, though what those conditions may be, is not made particularly clear. As long ago as the 9 of March, 1901, Diwan Randhir Singh borrowed a Sum of Rs. 5,500 from a caste-fellow of his own, Diwan Balbhadar Singh residing in the Hamirpur district. One of the few points on which the plaintiff has not, in the course of this litigation, contradicted previous admissions of his own, is the tact I hat he really did borrow Ks. 5,500 in connection with the execution of this document. Even in the trial court he admitted in plain terms that tie did owe Diwan Balbhadar Singh this sum of money. Evidently the original intention of the parties was that this money should be secured by usufructuary mortgage on the property of Diwan Randhir Singh in the village of Kerokhar. Whether possession- was actually given to the mortgagee is not quite clear; but it seems to be an admitted fact that, after the execution of this document, the parties began to doubt whether an alienation of this land in this particular form would be permitted by Government, and the question arose between the borrower and the lender about substituting some other form of security. At any rate, on the 22nd of February, 1902, we find Diwan Randhir Singh executing a simple mortgage of the same property in favour of one Kunwar Chimman Singh, for a consideration stated at Rs. 7,000, out of which Rs. 5,500 was to go to pay the debt due to Diwan Balbhadar Singh. In the present suit the plaintiff described Kunwar Chimman Singh as the own nephew of Diwan Balbhadar Singh. When cross-examined on the point, he failed to make out this precise relationship; but we may take it that there was some relationship between the two men. The plaintiff has alleged that no further consideration passed in respect of this document for Rs. 7,000 and that its execution was part of an arrangement between himself, Balbhadar Singh, and Kunwar Chimman Singh for the transfer of the debt due to Balbhadar Singh and its conversion into a simple mortgage for Rs. 7,000 in favour of Kunwar Chimman Singh, because the creditor was not satisfied with the security offered by the usufructuary mortgage originally executed.

(2.) The next important date in the case is the 25 of September, 1902. On this date Randhir Singh admittedly executed a document the interpretation and effect of which are questions in dispute between the parties. On the face of it this document consists of an express declaration that the executant had shortly before taken in adoption, with all due formalities, Kunwar Udit Narain Singh, minor son of Balbhadar Singh, and, further, that, as part of the same arrangement, the executant conveyed to the said Kunwar Udit Narain Singh his own proprietary rights in this village of Kerokhar. From the date of the execution of the deed, Kunwar Udit Narain Singh was to be the owner of this ubari tenure.

(3.) So long as he remained a minor, however, the property was to remain under the management and superintendence of Randhir Singh. There were other provisions dealing with the possibility of the subsequent birth of natural offspring to the executant, but with this we are not directly concerned. Mutation proceedings followed before the revenue courts and, in the course of those proceedings, it is beyond question that Randhir Singh stated in the most express and definite language that his possession over this property in village Kerokhar was now that of a guardian and superintendent (we might say, a trustee) on behalf of Kunwar Udit Narain Singh. After this date the proceedings taken by the Local Government under the Bundelkhand Encumbered Estates Act of 1901 came into operation. Diwan Bandhir Singh was one of the indebted proprietors, whose estate was brought under the operation of that Act and we have it that a number of claims were filed against him. Amongst other creditors Kunwar Chimman Singh put in a claim on foot of his simple mortgage for Rs. 7,000. In the court of the Special Judge appointed to determine claims under the Encumbered Estates Act a compromise was eventually filed, bearing date the 5 of July, 1905. The wording of this document is certainly peculiar. It makes no secret of the fact that Diwan Randhir Singh had entertained the intention of denying and repudiating the adoption of Kunwar Udit Narain Singh attested by the registered deed of the 25th of September, 1902. However, the compromise sets forth that, after discussion between the parties concerned, Diwan Balbhadar Singh had taken it upon himself to satisfy whatever claim Kunwar Chimman Singh had under the mortgage of 1902 and that, in return for this consideration, Diwan Randhir Singh had abandoned whatever intention he might have entertained of repudiating the adoption. He now binds himself, in express terms, to consider Kunwar Udit Narain Singh as his son and he re-affirms the fact of the adoption. There are certain other conditions the most notable of which is that, in the event of this adoption ever being repudiated by Diwan Randhir Singh or any other member of his family, they shall be bound to pay to Diwan itklbhadar Singh a sum of Rs. 11,250, which is estimated as the amount of the debt due to Kunwar Chimman Singh upon his simple mortgage in respect of which Diwan Randhir Singh was obtaining a release under the terms of the compromise.