MAHABIR PERSHAD SINGH Vs. MACNAGHTEN

JUDGEMENT

(1.) IN order to trace the circumstances which have given rise to the present litigation, it is necessary to go back to the year 1867; and it will be convenient, for the sake of brevity, to use the terms "Appellants" and "Respondents," as including not only the parties to this appeal but their predecessors in interest. The Appellants, members of a joint Hindu family, were owners of certain shares of twenty mouzhas, in talooks Malikalipore and Jonapore, which were sold, in that year, for arrears of Government revenue, to one Bunwari Lal. Am action was brought by them to set aside the sale as irregular, which was dismissed in the District Court; but in January, 1871, the High Court gave their decision in favour of the Appellants, which was affirmed by this Board in December, 1873.

(2.) THE Respondents held six of these mouzahs in lease before the sale to Bunwari Lal. They were proprietors of an indigo factory in the neighbourhood, and they gave the Appellants pecuniary and other assistance in their suit, in consideration of which, the Appellants, in October, 1871, during the dependence of Bunwari Lal's appeal to the Privy Council, executed a mortgage bond, by which they hypothecated their interest in the twenty mouzahs to the Respondents for Rs. 25,000, with interest at 1 per cent, per mensem, payable in one lump sum by the month of April, 1875. The Appellants were restored to possession in April, 1871, after the judgment of the High Court in their favour. In September, 1873, the parties entered into an agreement by which, in consideration of further assistance already given and to be given them by the Respondents, the Appellants undertook, in the event of Bunwari Lal's appeal proving unsuccessful, to renew the lease of the six mouzahs, to let to the Respondents the remaining fourteen mouzahs under a ticca pottah for fifteen years and to grant them a mokurruri lease of 13& frac 12 bighas, required by them for the extension of their factory. In February, 1874, shortly after the dismissal of Bunwari Lal's appeal, the Appellants executed a sunnud, authorizing the Respondents to collect the rents of their mouzahs for the year ending in September, 1874, the Respondents accounting to them for their receipts, under deduction of costs and charge Rs. In July, 1874, the Appellants, in terms of their previous agreement, renewed the lease of the six mouzahs, at a rent of Rs. 645, for fifteen years from September, 1874, and granted the Respondents a ticca pottah, for the same period, of the remaining fourteen mouzahs, at a yearly rent of Rs. 3527, subject to future adjustment. They also gave, as stipulated, a mokurrari lease of the 13 &frac 12 bighas.

(3.) THE judgment of the High Court in their mortgage suit having then become final, the Respondents, in June, 1879, revived the execution proceedings which they had instituted in April, 1878. The mortgaged property was exposed for sale on the 15th of September and the 20th of November, 1879, when it was purchased in two lots by the Respondents, who had obtained leave to bid from the Court, for Rs. 17,000. The regularity of the sale was impeached by the Appellants, but their objections were overruled by the Subordinate Judge, and after being sustained in part by the High Court, were ultimately disallowed by this Board on the 24th of December, 1882.