SREEMATI KUMODINI ROY Vs. ABDUL GANI MATABBOR

JUDGEMENT

(1.) The suit out of which this appeal arises related to about 3 drones of land comprised in Taluq Gouri Sanker Boily Nath bearing No. 13400/12094 in Mouza Patoli Machnakhali and others. The plaintiffs claimed to be entitled by-virtue of a redemption decree to a 10-annas 8- pies share in the Taluq. The defendant No. 2, who is the contesting defendant here, claimed to be entitled to 3 drones under the 5 annas 4-pies shares in Sikimi Taluqi rights. It appears that one Mahabat Ali Chowdhury owned two-thirds and one Uma Charan Ghose the remaining one- third share of this Taluq. Mahabat Ali and Uma Charan Ghose both mortgaged their rights in the Mahal to Bhecharam, the father of Ram Dayal Pal defendant No. 3. That was on 21st December 1883. They purported to mortgage two-thirds and one-third of the 16 annas. On 6th December 1900 the equity of redemption of Uma Charan, which had passed through several hands, came to Ram Dayal. On 5th February 1901 Ram Dayal granted an Etmam Patta of about 3 drones to defendant No. 1 Ali Neoz. On 7th June 1901 Ali Neoz transferred that to defendant No. 2, Abdul Gani Matabbor. On 28th May 1914 Ram Dayal sold the interest remaining in him to defendant No. 20 Kamala Kanta Sen. On 19th March 1912 the present plaintiffs instituted a suit for redemption of the 10 annas 8 pies share making Ram Dayal, who had presumably succeeded his father as mortgagee, party defendant No. 1 and Sarafat Ali Chowdhury defendant No. 2. On 19th August 1913 a decree was passed in favour of the plaintiffs for redemption. The plaintiffs then brought this suit on 25th January 1916 for a declaration of their Taluqa Maliki right in 10-annas 8-pies share of the 3 drones described in the schedule for joint possession thereof through the tenants defendants Nos. 4 to 19, for mesne profits, and fourthly, if the Etmam settlement was found to have been made, for declaration that that settlement and sale were inoperative as regards the 10 annas 5-pies share of the plaintiffs. Both the lower Courts have dismissed the plaintiffs suit, and hence this appeal.

(2.) Two points have been taken before us by the plaintiffs. The first is as to the extent of the plaintiffs share. It was found by the Court below that long before the mortgage a 1-anna share of this Taluq had been transferred to Nurasha, the wife of Ali Hossein, and was no longer in Mahabat Ali Chowdhury or Uma Charan Ghose when they purported to mortgage; their rights. This would be a question of fact into which we could not go in second appeal, but it was said that the learned Judge had erred in law in coming to the conclusion that there had been a transfer of this 1-anna share because such shares could only be transferred by registered deeds and there was no proof of any such document. In the first place, it would appear that the transfer to Nurasha must have been long before the Transfer: of Property Act. She purported to convey 1 anna to Safdornessa in 1884, and the Judge says that the transfer to her was many years ago. It is not, therefore, by any means clear that a document was necessary for the transfer of this share. The date of it is left in uncertainty, bat there is no doubt that the 1 anna share passed from hand to hand many times after 1854. Safdornessa sold to Sarafat Ali in 1889 and she bought it back from him in 1894. Again she transferred to one Golam Bari in 1894. Sarafat Ali appears to have again conveyed it to defendant No. 20 on 29th February 1912. Golam Bari made it over to defendant No. 2 on 11th January 1915. It will be observed that when the plaintiffs brought their redemption suit in March 1912 making Sarafat Ali a party defendant, Sarafat Ali had parted with his interest in the property--the subject- matter of that suit. There was, therefore, no one in that suit whose interest it was to raise the question as to this 1-anna share. We think that the findings of the Courts below must be accepted that this 1-anna share had passed away before the mortgage and that, therefore, Mahabat Ali and Uma Charan Ghose had not the full 16 annas to mortgage but mortgaged really 10 annas and 5 annas respectively.

(3.) The second point taken by the plaintiffs is that their suit should not have been entirely dismissed. The Etmam lease of Ram Jayal purported to cover all the shares in the Taluq though as regards area it was only in respect of these 3 drones. It is obvious that, as owner of the equity of redemption in 5 annas, he could not grant a lease which would affect more than his own share. The plaintiffs may, therefore, be given a declaration in terms of prayer (gha) of the plaint that, if Ram Dayal made any settlement of the lands in suit in favour of defendant No. 1, from whom defendant No. 2 purchased, it should be declared that that settlement and sale are inoperative and invalid as regards the 10 annas share to which the plaintiffs are clearly entitled.