SHEIK ABDOOL ALI Vs. KALI DUTT JHA

JUDGEMENT

(1.) THE suit which is the subject of this appeal was brought by the Respondents to have it declared that a deed of sale, dated the 7th of May, 1862, executed by the Defendant Sheik Reazuddin Hossein, the father of the Plaintiffs, was invalid, and for possession of one anna share in talook Wari, which was the subject of that deed.

(2.) MAHOMED Ali, who died in November, 1854, had two wives, Wasimunissa and Fakirunnissa. By the former he had a daughter, Udulunnissa, and by the latter a son, Mahomed Hossein. Udulunnissa married the Defendant Reazuddin, and died on the 26th of October, 1861, leaving a son and daughter, the Plaintiffs. Talook Wari had been resumed as invalid lakheraj in 1840, and from that time to its final settlement by the Collector had been temporarily let to various persons. Disputes arose and doubts existed as to the persona who were entitled to settlement, and the final settlement was not made until the 19th of May, 1862. Between 1840 and 1862 there had been various dealings with the talook. It will be sufficient to mention those which affected the parties to this suit. On the 1.9th of December, 1856, Syed Sufdar Hossein executed a deed of sale of 1 anna 3 pie 11 cowris, plus a fraction (which may conveniently be called a 2-annas share) in the talook and its dependency Sosi Narhat, in favour of Bhuput Jha and Madhuri Jha in consideration of Rs. 2,250. On the (6th of January, 1857, Sufdar Hossein executed another deed by which, after stating the sale of the 19th of December, and that owing to the inattention of the purchasers the mutual exchange of equivalents did not take place, and the deed of sale remained. with him; and that Udulwinissa and Fahirunnissa had by their karpurdazes claimed the right of pre-emption by reason of having, previously to the sale to Bhuput Jha and Madhuri Jha, purchased other shares in the talook, Sufdar Hossein sold the 2-annas share to Udulunnissa and Fakirunnissa for, Rs. 2,250. On the 11th of August, 1856, the 4th of December, 1856, the 6th of January, 1857, the 29th of January, 1857, and the 23rd of February, 1857, purchases of other shares in the talook and its dependency were made by Udulunnissa and Fakirunnissa. These shares, together with the share sold to them on the 6th of January, 1857, made up 9 annas of the talook, half of which was declared to belong to each of them. On the 31st of December, 1861, five suits were instituted against Fakirunnissa and Udulunnissa by Surdhari Jha, the ancestor of some of the Defendants, to establish a right of pre-emption to the shares composing the 9 annas, and the Collector had before him these conflicting claims to the settlement.

(3.) ON the other side of the account, under a date co-responding with the 13th of January, among the entries of "paid on account of revenue into Collectorate," there is an entry "Wari, Rs. 181, 9," and under a date corresponding with the 29th of March an entry "Wari of Raja, Rs. 447. 15.," and on the date corresponding with the 26th of May, 1862, there is an entry, "Paid through Sheik Velait Hossein, in order to defray the expenses of the settlement of talook Wari Rs. 2,500." It appears from the proceedings of the Collector of Tirhoot, dated the 19th of May, 1862, in a suit for obtaining permanent settlement of talook Wari, that a petition was filed on behalf of Bhuput Jha and Madhuri Jha, stating that they were the purchasers of A.I. 3. 11 cowris and a fraction share, and subsequently on the 10th of May, 1862, a petition of withdrawal was filed on their behalf, stating that they withdrew from that claim filed previously, and praying that the deed of sale to them on the 19th of December, 1856, might be considered ineffective, and that the settlement might be effected with Fakirunnissa and others. And that subsequently, on the 12th of May, 1862, another petition was filed on their behalf with the deed of the 7th of May, 1862, praying that a settlement of the 2-annas share mentioned in that deed should be made with them. On the same 7th of May, 1862, consent decrees were made in the live pre-emption suits by which they were dismissed. Thus all opposition on the part of the Jhas as regards seven annas was withdrawn, and they claimed the settlement of only two annae under their new title. In the end the settlement was made with Fakirunnissa, described as mother and guardian of Mahomed Hossein, and Reazuddin described as father and guardian of the Plaintiffs, for seven annas of the nine, and with the Jkas for the remaining two annas. The allegation in the plaint that Reazuddin appropriated the consideration for the sale of the 7th of May, 1862, was not only not proved, but was disproved, and nearly the whole, if not the whole, of the consideration appeared to have been applied on account of the talook.