DYAM KHAN Vs. SARAT CHANDRA DE

JUDGEMENT

(1.) This is an appeal by the plaintiffs whose suit has been dismissed by the Subordinate Judge of Cammilla. The plaintiffs are Dyam and Abdul Hamid Bhunia, who are in the position of champertors, and Romjan Banu, Anarjan and Mahabat Ali, children of One Amanulla. Amanulla died about 1893 leaving by his first wife three children who had then attained their majority, and a widow Ayesha Bibi and four minor children by her. The majors were Syed Ali, Nayan Bibi and Meherjan Bibi, defendants Nos. 7, 8 and 9.

(2.) Ayesha Bibi is defendant No. 6, Romjan Banu. Anarjan and Mohabat Ali are plaintiffs Nos. 3, 4 and 5; Mullickjan, the 4th child of Amanulla by Ayesha Bibi, is defendant No. 10. Defendants Nos. 1 to 5 represent the Firm of Khetra Mohan Dey and Co., who are said to have purchased from Ayesha Bibi towards the end of April 1898 the shares of her four minor children in the howla of Amanulla. This suit is brought to recover from defendants Nos. 1 to 5 me seven annas fifteen gandas share of those children. It should be stated that plaintiff No. 1 is alleged to have purchased the interest of Mullickjan, and plaintiff No. 2 that of Romjan Banu in the property in suit. Anarjan, though she at first joined in the suit as a party plaintiff, has now come to terms with defendants Nos. 1 to 5 and declines to prosecute the suit or appeal any further.

(3.) It appears that in 1898 there were negotiations for the sale of the howla of Amanulla by his children to Khetra Mohan Dey and Co. The reasons ascribed for the sale were that the lands were low lying, they were being encroached upon by the town and jetties of Chandpur and were increasing in value as lands suitable for jute godowns but losing their value as mere cultivable lands. In February 1898 the widow of Amanulla joined with his major children in executing a byanapatra or agreement to sell to Khetra Mohan Dey & Co. It was understood that for the sale of the shares of the minors leave of the District Judge would have to be obtained. That was no doubt in the minds of the parties, when they entered into that agreement. On the 17th of February 1898 Ayesha Bibi put in a petition before the District Judge asking to be appointed guardian of her minor children. One paragraph in that petition says that it was necessary to sell certain properties to clear debts incurred by the father of the minors. On 16th March 1898 Ayesha Bibi, as one of the heirs of her husband, joined with the major children in transferring their 8 annas 4 gandas odd share to Krishna Chandra Dey for Rs. 2,809-11-0 (Ex E 1). On 30th March 1898, Ayesha Bibi was duly appointed guardian of the persons and property of her minor children, and thereupon on 2nd April 1898 she filed a petition (Ex. C) for leave to sell. On the same day the District Judge sanctioned the sale of the property provided the bonds, meaning the three bonds, mentioned in the petition Ex. C, on which the estate of Amanulla was still indebted, were produced before him endorsed as fully satisfied on 18th day of May 1898. The sanction having been given in that form another kobala was executed by Ayesha Bibi on behalf of her minor children conveying their 7 annas 15 gandas odd share to Krishna Chandra Dey for a similar sum of Rs. 2,809-11-0. This kobala does not bear any date but we find that the stamp was purchased on 23rd April and the deed was registered on 28th April, so that it must have been executed within those six days. On the 18th May 1898 the bonds were not in fact produced- before the District Judge though he twice gave time for their production. On the 27th July the District Judge made an order purporting to withdraw the conditional sanction of 2nd April 1898. The bonds as a matter of fact were never produced before him, but three registered receipts were put in on 27th June 1898 which purported to be executed by the obligees of those bonds stating that their respective bonds, had been duly paid and discharged. They are Exs. F, F1 and Ex. (C). The sale had been carried into, effect and possession given to defendants Nos. 1 to 5, who have ever since been in possession of the land. Plaintiffs Nos. 1 and 2 profess to have purchased the interests of Mullickjan Bibi and Romjan Banu by two kobalas which the learned Subordinate Judge has found to be sham transactions and without consideration. On the strength of these alleged purchases they obtained the concurrence of the other three plaintiffs arid filed this suit on 21st April 1910. The suit is obviously a purely speculative one brought by plaintiffs Nos. 1 and 2, Finding that the value of the property in the locality had materially increased since 1898 they purchased this litigation with a view of making some profit out of it.