Decided on May 01,1908



- (1.) Before stating the facts of the case I get forth the following pedigree. It will show the relation of the parties to the suit, with the exception of Musammat Bhawani Kunwar who is a transferee of Jiwan Sahai under the sale-deed of the 9th February 1892. The suit was instituted on the 14th December 1904. JIWAN SAHAI. | ---------------------------------- | | | Ram Sahai. Indar Sahai, Tirbeni Sahai. | Defendant (2). | | --------------------------------------------------- | | | | Raj Bahadur. Ram Bahadur = Shyam Bahadur, Dhum Bahadur, | Saraswati Kunwar. Defendant (3). | Madan Mohan, Dawand Bahadur, Defendant (5). Defendant (4). KHUSHWAKT RAI. | ------------------------------ | | Ishri Prasad. Khemanand. | | Sohan Lal. ------------------------------ | | | | | | Mithu Misri Chhote Jawahir Mulo Kunwar, = Nitanand, Lal. Lal. Lal. Lal. died 28-2-97. died De- | cember, | 1878. | -------------------- | | Naraini Kunwar. Saraswati Kunwar= died without issue Ram Bahadur, in 1889. died 25-3-02. | -------------------- | | Himmat Bahadur, Bakht Bahadur, Plaintiff. Plaintiff.
(2.) The facts which have led up to this appeal are as follows: One Malik Muhammad Ali Khan obtained two decrees against Ishri Prasad and his brother Khemanand. One was dated the 17th August, 1822, for Rs. 23,348-3-0 and the other was dated the 20th August, 1822, for Rs. 17,800, These decrees were put in execution from time to time, and a sum larger than that which was actually due was realized under them. A suit then was instituted for the ascertainment of the excess, and the High Court in 1869 fixed it at Rs. 41,600. Soon after the amount of the excess had been fixed, the heirs of Ishri Prasad and Khemanand started proceedings to recover it from the property of Husaini Begam, a daughter of Malik Muhammad Ali Khan. The village Parewa belonging to her was attached and sold on the 20th September 1877. One Nur Ahmad purchased it for Rs. 52,000. Babu Ram Sarup, who had purchased the rights and interests of two of the four sons of Khemanand, realized on the 27th and 28th November, 1877, Rs. 49,107 out of the sale-proceeds of Parewa, and deposited the same with Jadon Rai and Baldeo Prasad. Out of the sum so deposited Musammat Mulo Kunwar withdrew sums amounting to Rs. 21,475 by instalments. Out of the money so received she applied Rs. 17,612 to the payment of the debts due by her husband Nitanand in his life-time.
(3.) The sale of Parewa in a suit brought by one Altaf Ali Khan was set aside on the 30th of January 1878, and on the sale being set aside Nur Ahmad on the 12th December 1878 applied for the return of his purchase money and his application was granted on the 20th December 1878. He proceeded against the property which Musammat Mulo had inherited from her father and her husband. She sued Nur Ahmad for a declaration that she was not liable to refund the entire sum realized by Ram Sarup. The High Court on the 25th November 1878 held that she as an heir of Ishri Prasad was liable to pay the entire amount. Nur Ahmad realised portions of his claim and a balance of Rs. 21,815-6-6 remained due to him. This is the balance for which, according to the allegations in paragraph 15 of the plaint, the heirs of Khemanand alone were liable. Jiwan Salmi paid this balance, at the instance of Musammat Mulo Kunwar, to Aziz Ahmad and Zamir Ahmad, sons of Nur Ahmad, for the discharge of the money due to their father. The money was paid out of the proceeds of the sale of the property which was sold by Jiwan Sahai to the sons of Nur Ahmad on the 4th of May 1885.;

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