IMAMBANDI BEGAM Vs. KAMLESWARI PERSHAD

JUDGEMENT

(1.) ON the 14th of June 1875 Rampersad, the father of the respondent in the original appeal and appellant in the cross-appeal, purchased at a sale for arrears of Government revenue a share of the mehal Bisthazari, pergunnah Bisthazari, for Rs. 64,600, and received a certificate of sale there of from the Collector of Monghyr. The sale was made under the provision in Section 13 of Act XI of 1859, the 54th Section of which enacts that when a share or shares of an estate may be sold under the provisions of Section 13 or Section 14, the purchaser shall acquire the share or shares subject to all encumbrances, and shall not acquire any rights which were not possessed by the previous owner or owners. On the 25th of February 1878, the appellant in the original appeal, Imambandi Begum, brought a suit against Eampersad Das and others, claiming to have an encumbrance upon the estate by virtue of two mokurari pottas, one executed by Mirza Tasadduck Hossein Khan, alias Jhoti Khan, on the 1st of March 1866, and the other by Mirza Mahomed Taki Khan, alias Bari Khan, on the 6th of April 1866. They were the brothers and heirs of Mussamut Fatima Begum, alias Nawab Bohu Begum, and they thereby leased in perpetuity to Imambandi Begum, in the names of her servants Syed Jaffer Ali and Mussamut Nazirunissa, the mouzahs specified in the first paragraph of the plaint (being part of the estate purchased by Eampersad Das) at an annual jumma of Rs. 5,801,7 annas and 6 pie. The main question in the suit and in the appeal is what was the right of Bohu Begum in the estate which was thus leased. The question in the cross-appeal is whether the suit is barred by the law of limitation.

(2.) THE property in dispute originally belonged to one Abdur Rahman, and it was, along with the share of his brother, Mokim Khan, brought to sale in execution of a decree against them on the 1st of December 1851. It was purchased by their servant, Najaf Ali, and it was proved, and has been found by both the lower Courts, that his purchase was benami for Abdur Rahman and Mokim Khan. Najaf Ali's name appears to have been entered in the Collector's books as the proprietor, and to have remained there till the sale in 1875 to Rampersad Das. On the 26th Dtcember 1851 Najaf Ali executed two ikrarnamas--one to Sheik Ahmed Buksh and one to Bohu Begum, who was the wife of Abdur Rahman. In these the sale by auction on the 1st December is mentioned, and it is stated that out of 16 annas of the purchased property he purchased 9 annas 1 dam for one Sheikh Ahmed Buksh, and 6 annas 19 dams for Bohu Begum, and that they having failed to procure the earnest money and the consideration-money he had obtained it from Mr Pater Omraet, and had made a conditional sale of parts: of the purchased property to Mr. Omraet for Rs. 19,190, and Certain leases for nine years of other parts to Omraet and td other pergons on zurpeshgi. Then follow these words : "That when the whole and entire Rs. 19,190 the consideration-money, with interest, will be paid off from the proceeds of the villages, or in cash by Sheikh Ahmed Buksh and Mussamut Nawab Bohu Begum aforesaid to Mr. Pater Omraet, purchaser, then I will execute deeds of sale according to their request, for the same consideration-money, that is, the auction sale- price of the entire property purchased by me, that is, in respect of 9 annas 1 dam to Sheikh Ahmed Buksh and 6 annas 19 dams to Mus- samut Nawab Bohu Begum aforesaid." The statement that the purchase was made for Ahmed Buksh and Bohu Begum was, untrue and the evidence proved that the loan by Mr. Omraet was negotiated for by Abdur Rahman and Mokim, the real purchasers. The intention of the ikrarnamas appears to their Lordships to have been that, when the mortgage was paid off, Ahmed Buksh and Bohu Begum should be respectively benamidar for each of the brothers in the place of Najaf Ali. If any cash was paid in satisfaction of the mortgage it would be paid in their names to give colour to the transaction.

(3.) ON the 8th of January 1861 Najaf Ali executed a deed of sale. It begins with the same false statement as to his purchase as is in the ikrarnamas. It then refers to the conditional sale to Omraet and the two ikrarnamas and after stating that, owing to drought and for payment of Government revenue, Najaf Ali had obtained other loans, and decrees had been obtained against him, it proceeds thus : "Now Mussamut Nawab Bobu Begum, widow of Khaja Mahomed Abdur Rahman, deceased has paid me wholly and in full on account of the purchase-money of the conditional deed of sale, and the amount of the decree due to the aforesaid gentleman in proportion to her own share which has been found due by calculation, and taken the zurpeshgi due to ticcadars for the aforesaid mouzahs, and the amounts of debts due to Mahajuns on account of her own share upon herself to pay, and asked me to execute and give a deed of sale in due form." Then Najaf Ali sells and transfers to Bohu Begum the share which was purchase 1 by Abdur Rahman, stating it to be in conformity with the ikrarnama.