AHMAD RAZA Vs. SAIYID ABID HUSAIN

JUDGEMENT

(1.) This appeal from a judgment and decree of the High Court of Allahabad arises out of a suit brought by the plaintiffs in the Court of the Subordinate Judge of Azamgarh, for the redemption of an usufructuary mortgage alleged to have been created in 1857 in respect of a twelve annas share in the village of Malgaon. The document on which they rely to establish the mortgage is a certified copy of a petition of compromise filed in Court on the Ist of April, 1857. It is not disputed that the record of the proceedings in which this petition was filed, was destroyed in the Mutiny, which broke out shortly after. The certified copy is, however, admissible in evidence relative to the facts recited therein, and was rightly admitted by the Subordinate Judge. The question for determination in this appeal is, however, whether if the petition is to be treated as creating the mortgage, it was properly stamped in accordance with the Indian Statute then in force to entitle the plaintiffs to sue upon it.

(2.) The facts which led to its being filed in Court are simple, A suit had been brought by the plaintiffs ancestors against the predecessors of the defendants for a decree for possession " by partition" of the twelve annas share in Mowzah Malgaon to which they claimed to be entitled. Their claim appears to have been dismissed by the first Court. The appeal from this dismissal of their suit, preferred by the plaintiffs, was pending before the Zillah Judge. The parties, however, came to a compromise, and, as stated already, on the Ist April, 1857, filed before that officer the petition in qusetion, signed by the pleaders of the parties. In this petition they notified to the Court the terms of the settlement, and prayed that the case might be decided according to the conditions set forth above. These " conditions " are stated in the body of the petition in the following terms :- Now the parties have come to a settlement in this way, that the respondents, admit the ownership of the appellants, and that the claim has been brought within time; that the respondents shall remain in possession of the aforesaid property for a period of twelve years in lieu of the mortgage money; that the appellants shall redeem the aforesaid property after twelve years, on payment of the mortgage money out of their own pocket.

(3.) The order endorsed on the document is as follows :- To-day the pleaders for the parties filed this compromise in the presence of their respective clients, and verified and admitted all the conditions laid down therein. It is, therefore, ordered that the compromise be placed on the record, and the case be put up to-morrow in the forenoon for final disposal. And then follows the date (1st April, 1857), and the Judge s signature in English.