MT ASGHARI BEGAM Vs. KANHAIYA LAL

JUDGEMENT

(1.) This is a first appeal from a decision dated 28 April 1931 of the learned Additional Subordinate Judge of Muttra. The suit was brought by one Mt. Asghari Begam and her daughter Mt. Rabia Khatun for a declaration that they and certain other defendants, who were described in the plaint as defendants of the third and fourth party, are the absolute owners of a certain mahal called the Kirpa Shankar mahal in a village called Shazadpur Gujar in the Muttra District. Of the defendants originally impleaded as defendants of the third party, Defendant 13, Irshad Husain Khan, died, and was succeeded by his mother Mt. Moti Begam, his widow Mt. Afsari Begam, and his sister Mt. Siddiqi Begam. There were three defendants of the fourth party; as regards them no change took place during the pendency of the suit. The facts are somewhat complicated but briefly stated they are as follows.

(2.) The property in question was originally owned by two men named Bijai Singh and Krishna. It was mortgaged by them to one Ayaz Khan. Afterwards Indar, a grandson of Krishna, on 14 February 1874 sold his share (2 biswansis) to one Kirpa Shankar, in 1875, by two agreements evidenced by documents dated respectively 6 November 1875 and 19 November 1875. The other descendants of Bijai Singh and Krishna entered into a somewhat curious agreement with Kirpa Shankar under which he was to redeem the whole property from Ayaz Khan and hold possession of it for a period of eight years, after which time he was to surrender to the descendants of Bijai Singh and Krishna a share of 4 biswas 9 biswansis that is to say, the whole of the 5 biswas of the mahal leas the 11 biswansis which he bad himself purchased from Indar. The mortgage was, in fact, redeemed by Kirpa Shankar, and entries were made in the Khewats" on the basis of the new situation which had come into existence. Kirpa Shankar, it appears, did not make over to the heirs of Bijai Singh and Krishna the above-mentioned share of 4 biswas and 9 biswansis at the expiration of the period of 8 years prescribed in the agreements of the year 1875, but on 20 September 1904, in execution of a decree held against him by one Kanhaiya Lal, the entire rights of Kirpa Shankar were put up to auction and were ostensibly purchased by one Mohammad Siddiq. This Mohammad Siddiq, who is now dead left two sons, Mohammad Munim and Mohammad Faruq, who are respectively defendants 11 and 10 in the present suit. According to the plaintiffs, Mohammad Siddiq was the general attorney of Ayaz Khan and his successors, and the purchase by him of the rights of Kirpa Shankar was, in fact, made on behalf of Mohammad Ayaz Khan's son, Mohammad Ibrahim Khan. It should be mentioned that Mohammad Ibrahim Khan had a son Mohammad Mohsin. Mt. Asghari Begam, plaintiff 1 is the widow of Mohammad Mohsin, and plaintiff 2, Mt. Rabia Khatun is the daughter of Mohammad Mohsin and Mt. Asghari Begam. The defendants of the third party are descended from Hamid-uz-Zafar, son of Mt. Asghari Begam, and the defendants of the fourth party are the children of one Khan Bahadur Ashiq Ali Khan, who is related by marriage to the family of the plaintiffs. The learned Subordinate Judge took the view that it was not proved that Muhammad Siddiq was merely acting on behalf Md. Ibrahim Khan when he purchased the rights of Kirpa Shankar on 20 September 1904 and he accordingly dismissed the plaintiffs suit with costs. It is contended before us that the finding on this point was not justified, and this has been one of the main points argued before us at the hearing of this appeal which is by the plaintiffs. Learned Counsel for the appellants has invited our attention to para. 8 of the written statement of the contesting defendants 6 and 9 who are descendants of Kirpa Shankar. He has also called our attention to para. 4 of the further pleas taken in that written statement Para. 8 runs as follows: In para. 11 of the plaint only this much is admitted that Kanhaiya Lal had a decree against Munshi Kirpa Shankar, and in execution thereof the property was put to auction, but Mohammad Ibrahim did not purchase any rights of Munshi Kirpa Shankar, nor could he do so. All the proceedings regarding the auction sale, etc. were collusive and fictitious, and were taken by Mohammad Ibrahim, in order to cause loss to, and jeopardise the rights of Kirpa Shankar.

(3.) Paragraph 4 of the further pleas runs as follows: Mohammad Ibrahim did not feel content with this much alone, but colluded with Kanhaiya Lal, who had a decree for a small sum of Rs. 131 against Munshi Kirpa Shankar and taking all proceedings secretly caused the property in dispute to be put to sale, and himself purchased it in the name of his Karinda, as appears from the contents of para. 11 of the plaint. Mohammad Ibrahim took all these proceedings secretly in collusion with Kanhaiya Lal aforesaid in order to deprive him of the property in dispute, and those cannot in any way affect the rights of Munshi Kirpa Shankar. Mohammad Ibrahim was in possession of the property in dispute as a thekadar (lessee). He was legally, morally and equitably bound to safeguard the rights of Munshi Kirpa Shankar. He was not in any way authorised to snatch the said property in this way. Besides this, if Mohammad Ibrahim paid any auction money, (which is not admitted), it was the money of Munshi Kirpa Shankar and he did not pay his personal money.