MUMTAZ HUSAIN Vs. BABU BRAHMANAND

JUDGEMENT

(1.) These are appeals against a judgment dated 23 December 1931, of the learned Subordinate Judge of Moradabad, by which he decided two suits, Nos. 37 and 38 of 1931, of his Court. The suits were connected, and so are the present appeals, which can conveniently be disposed of by one judgment. The facts, briefly stated, are that in the year 1884 Hijri (=1765-1766 A. D.) a " farman" was issued by the then King of Delhi, Shah Alam, conferring upon one Saiyid Ghulam Asadullah Khan, an ancestor of the defendants in both the present suits, an income of Rs. 2,368, to be realized from lands in the Amroha pargana of the "Sambhal Sarkar," as it is described in the "farman." A condition of the grant was that the grantee and his descendants should "keep it safe from all the changes and transfers." This grant, it appears, has always been recognized by the various Governments that have succeeded the Government of the Kings of Delhi: vide extracts from statements showing perpetual "Muafi" holdings printed at p. 83 of the printed book of First Appeal No. 179, and p. 2 of the supplemental record in the printed book of First Appeal No. 180. In the suit out of which First Appeal No. 179 arises a mortgage deed is in question which was executed on 17 February 1920, by one Saiyid Ejaz Husain in favour of one Brahmanand for a sum of Rs. 7,500, carrying interest at the rate of nine annas per hundred rupees per mensem, compoundable annually. The mortgaged property consisted of a certain share in a village called Burhanpur, in the Amroha pargana. In the suit out of which First Appeal No. 180 arises a mortgage deed was in question executed on that same date, 17 February 1920, by Saiyid Ahmad Hasnain and Saiyid Muhammad Askarain, for a sum of Rupees 7,000, carrying interest at the rate of nine annas per hundred rupees per mensem, compoundable annually. The mortgaged property consisted of a village called Cheontipura, in the Amroha Pargana. The mortgagors, the defendants in both the suits, as has been mentioned already, are descendants of the original grantee, Saiyid Ghulam Asadullah Khan.

(2.) Saiyid Ejaz Husain is now dead, and is represented in the suit out of which Appeal No. 179 arises by his four sons, Saiyid Mumtaz Husain, Saiyid Imtiaz Husain, Ahmad Hasan, (alias Hamid Hasan), and Saiyid Nasim Husain; his daughter, Mt.Hamida Khatun; his grandson, Saiyid Askarain; Zafar Hasan, the husband of Saiyid Ejaz Husain's deceased daughter, Mt. Hajira Khatun; Mt. Jafra, the daughter of Mt. Hajira Khatun; and Baqar Hasan, the son of Mt. Hajira Khatun. These descendants of Saiyid Ejaz Husain were impleaded in that suit as defendants, and along with them were impleaded, as subsequent transferees, Mt. Madina Khatun, the wife of Saiyid Askarain, and Saiyid Muhammad Raza, the son of Saiyid Mumtaz Husain, and also impleaded, as a subsequent mortgagee of part of the property, was one Rameshar Parshad. The total amount claimed in that suit by the plaintiff-mortgagee, Brahmanand, was Rs. 12,417-14-6. In the other suit the defendants were Saiyid Ahmad Hasnain (he is apparently the same man as the Ahmad Hasan, alias Hamid Hasan, of the connected suit), and Saiyid Muhammad Askarain, the mortgagors, and along with them were impleaded, as a transferee, Mt. Madina Khatun, the wife of Saiyid Muhammad Askarain; subsequent incumbrancers in the persons of Lala Kesho Saran, Lala Mangal Sen and Lala Rameshar Parshad; and the lessee of part of the property in the person of one Mukhtar Ahmad. In that suit a total sum of Rs. 9,789-7-0 was claimed by the mortgagees, Nittia Nand and Krishna Nand, who at the time of the institution of the suit, were minors sunder the guardianship of their mother.

(3.) The learned Subordinate Judge decreed both the suits in full. Six of the defendants are the appellants in Appeal No. 179, and the mortgagors, Saiyid Ahmad Hasnain and Saiyid Muhammad Askarain, are the appellants in Appeal No. 180. The contentions urged before us in both the appeals on behalf of the appellants were the same namely, (1) that under the terms of the original grant the income bestowed on the ancestor of the appellants was expressly made non- transferable; and (2) that the income must be regarded as a pension within the meaning of Section 11, Pensions Act (23 of 1871), and that the money in question is exempt under the provisions of Section 11 from seizure, attachment or sequestration by process of any Court in British India, at the instance of a creditor, for any demand against the alleged pensioner, or in satisfaction of a decree or order of any such Court. Section 12, Pensions Act, was further relied upon, and it was argued that the mortgages on which the present suits were brought were under the provisions of that section null and void.