RAJA BAKAR ALI KHAN Vs. RAO KARAN SINGH

JUDGEMENT

(1.) THIS is a suit brought to recover a sum of Rs. 13,745 on two bonds, one dated the 7th of January, 1862, for Rs. 4000, and the other dated the 6th of October, 1862, for Rs. 1000. Those bonds were executed by Baharjit Singh, the father of Kharag Singh and Rudar Singh, who were infants, for money advanced by the Plaintiff to enable them to defend certain suits brought by Karan Singh. It appears that Badam Singh was entitled to certain property, and that upon his death his widow took possession. Karan Singh, who is now the Appellant, brought a suit to turn the widow out of possession upon the ground that Badam Singh had made him his heir-at-law. That suit was defended by the widow, who died during the pendency of it; and the grandchildren Kharag and Rudar Singh were made parties to the suit, Baharjit their father acting as their guardian. The suit was determined in favour of the Defendants. After the death of the widow, Karan Singh claimed the property on behalf of his grandfather Gholab Singh, on the ground that the infants, who were sons of a daughter, were not, according to a custom of the family, entitled to inherit the estate. The father of the infants borrowed the moneys for the purpose of defending the suits, and it is now admitted that no question can be raised as to the validity of the bonds, the father having been justified under the circumstances in borrowing the money, and the Plaintiff in lending it, for the benefit of the infants. The bonds are both in the same terms:--" I therefore covenant in writing that I shall pay the above-mentioned amount in full, with interest at one rupee per cent, per mensem, on demand, without raising any objection or pretext; that until the payment of the amount of this bond, the share in mouzah Khurd Khera, pergunnah Barouli (which is already hypothecated in satisfaction of the former loan), shall remain pledged and hypothecated in satisfaction of this loan also; and that I shall not alienate it elsewhere by means of mortgage sale." That is what is usually called a mortgage bond. The Plaintiff claimed to enforce payment of the money due under the bonds by sale of mouzah Khnrd Khera, the estate which was hypothecated. The only question now remaining, the bond having been held to be a valid bond, is whether the Plaintiff in the suit is barred by limitation.

(2.) THE second suit against the infants was referred to arbitration, under which, by an award dated the 5th of August, 1863, the village Khurd Khera, which was sought to be sold by auction, together with other villages and properties belonging to Badam Singh, were declared rightfully to belong to Golab Singh, the Defendant's grandfather, and not to Kharag Singh and Rudar Singh. The Defendant Karan Singh, as guardian of Golab, sued on the said award, and obtained a decree from the Principal Sudder Aineen's Court on the 31st of August, 1863, in execution of which he was put into possession in October of the same year.

(3.) IT appears now, as between the Plaintiff and the Defendant, that the infants were entitled to the property, because no evidence whatever has been given to shew that the custom of the family set up by the Defendant, namely, that the son of a daughter could not inherit, ever existed. According to the ordinary Hindu law the infants were entitled to inherit.