IMAMBANDI BEGUM Vs. KAMLESWARI PERSHAD

JUDGEMENT

(1.) BY a lease, dated the 1st of March 1866, made by Tasud-duok Hossein Khan, one of the two brothers of Mussummat Fatima Begum, alias Nawab Bahu Begum, deceased, who it is stated in the lease died, leaving a share of 6 annas 12 dams of another share of 15 annas 6 dams of certain mouzas therein named, and a share of 4 annas out of another share of 15 annas 6 dams in other mouzas also named, one half of which devolved on Tasudduck Hossein, and the other half on his brother. Mirza Mahomed Taki Khan, Tasudduck Hossein granted in mokurari (perpetual) lease his half- share, viz., 3 annas 6 dams of the shares of Bahu Begum in the mouzas, with the exception of those which are said to have been sold during her lifetime in execution of a decree, on receipt of Rs. 4,630 as nazrana (premium), and at a fixed annual rent of Rs. 2,912-11-9 (out of which Rs. 2,828-11-9 were to be paid as Government revenue of the mouzas, and Rs. 84 as the lessor's profits), to Syed Jaffer Ali. The lease contained the following passage :" It is required that the said mokurari-holder should remain in possession of the aforesaid shares of the abovenamed mouzas, and out of the aforesaid fixed amount of rental continue to pay Rs. 2,828-11-9 in the treasury of the Collector of Monghyr, and the remaining Rs. 84, my reserved rent, to me the declarant, instalment by instalment."

(2.) ON the 6th of April 1866 Mirza Mahomed Taki Khan, the other brother, made a similar lease of his 3 annas 6 dams share on receipt of a nazrana of Rs. 2,911 at an annual rent of Rs. 2,888-11-9, out of which Rs. 2,828-1.1-9 were to be paid as Collectorate revenue of the mouzas, and Rs. 60 as reserved rent to Mussummat Nazirunnissa. This lease contained a similar passage as to possession and payment of the Government revenue and rent.

(3.) DISPUTES arose between Imambandi Begum and Ram Pershad, and in 1878. She brought a suit against him and others to establish her rights to the shares in the mouzas comprised in the leases, of part of which shares she said she was absolutely dispossessed, and of the other part that Ram Pershad had denied her mokurari right. The facts of the case were very complicated, the question being what were the shares of Bahu Begum and the other defendants in the mouzas. Judgment was given by the Subordinate Judge on the 15th August 1880. One of the issues settled was whether the grantors of the moku-raris to the plaintiff, or the plaintiff herself, held possession of the disputed shares within twelve years before the institution of the suit, or had been out of possession for upwards of twelve years. The finding of the Subordinate Judge upon this issue was against the plaintiff, and he dismissed the suit. Imambandi appealed to the High Court. One of the Judges of that Court found that within twelve years next before the institution of the suit the plaintiff herself and her lessors were in possession of the disputed property. The other Judge said that Bahu Begum and after her brothers were certainly in possession as late as April 1866. The first lease is dated the 1st March 1866 and the second lease the 6th April 1866. The suit was commenced on the 28th February 1878, just within the twelve years allowed by the law of limitation. Their Lordships think that it must be taken as a fact that Imambandi did not enter into possession under the mokuraris. The High Court found that the share of Taki and Tasudduck Hossein, which they derived from Bahu Begum, was at best one-quarter of her husband's estate of 6 annas 12 dams, from which 1 anna sold by Bahu Begum should be deducted, leaving 13 dams in respect of some of the villages; that the share was further reduced in respect of some villages by a decree for 7 dams in favour of another person, and there remained a share of 1l 1/4 dams in those villages. The Court also said that the plaintiff having caused a certain number of the villages covered by her leases to be sold on the 30th January 1868 she could not claim to hold them as lessee, and the suit must be dismissed as to them. Then it was said by the Court that if in execution of the decree the plaintiff elected to recover possession of the aforesaid shares, she would be bound to pay annually Rs.