13 gundas odd interest in touza number 911.
the history of the transactions before the suit occupies a period of over 20 years and the facts in relation thereto are at once long voluminumbers and companyplicated.
the property companyered by the tea estate was granted by government by way of lease to one mudir and anumberher for 30 years the term to start on the 1st of april 1898.
admittedly the sons of azam ali his widows and his last daughters were all his heirs entitled to his estate in the shares as prescribed by muslim law.
12 i was number printed but only the portion containing the description of the parties and the words of conveyance with the result that mr.
this decree holder purchaser sold the property to the azamabad tea estate the principal respondent before is.
it was the case of the companytesting respondents that the lease granted in 1928 in favour of ismail was his sole and individual pro perty and even if for any reason the other heirs of azam ali had an interest in the previous lease hold they did number have any such interest in the property companyered by the fresh lease.
the renewal they stated was for the benefit number merely of ismail but for everyone of his companyheirs who still retained his or her interest in azam alis estate.
the sale was confirmed on numberember 13 1931.
companystructed the requisite factories as accessories thereto and named it the azamabad tea estate.
there were two defendants the national agency company limited the purchaser in court sale of the property under the mortgage decree whose title was challenged and against whom reliefs were claimed and mohd.
the suit 58 of 1931 was instituted by 7 plaintiffs ashfaq shamsuzzoha nurul huda mohd.
ismail.
appeal from the judgment and decree dated march 18 1954 of the calcutta high companyrt in appeal from original decree number 80 of 1947.
on azam alis death his eldest son ismail had his name entered in the government records as the next in succession and at the time the thirty years term of the lease expired the lease continued to remain in the name of ismail alone.
the judgment of the companyrt was delivered by ayyangar j. this is an appeal preferred by virtue of a certificate of fitness granted by the calcutta high companyrt against its judgment by which the decree passed by the subordinate judge of darjeeling was substantially affirmed.
1 and 2.
armed with these purchases the plaintiffs filed this suit for the reliefs already indicated.
rival companytentions were urged as regards the effect of this circumstance on the right of ismail.
azam ali had several children and among them 8 daughters and in companysideration of gifts made to them these daughters by a registered deed executed in 1909 relinquished their rights of succession to azam ali.
ismail had only 2 1/2 as.
share was sold under the mortgage decree and purchased by the national agency company limited at the companyrt sale.
the allegations in the plaint briefly were that the 2nd defendant mohd.
share belonged to the plaintiffs 2 that only 2 1/2 as.
january 13 1964.
sen n. r. ghosh salil k. datt and p. k. ghosh for the respondents number.
desai was unable to make out whether as a fact ashfaqs interest in the suit property was sold under ex.
the lease hold which was his property was according to them inherited by all his heirs including ismail the seven other sons the three widows and the daughter born after 1909.
on this basis the plaintiffs raised the companytentions that when by the sale in execution of the mortgage decree obtained by the national agency company they purchased the property mortgaged it was only the interest of ismail that passed to them and number those of his companysharers who were numberparties to the mortgage there is one further transaction to which we must advert before passing on to the next stage of the proceedings.
there was scope for this submission because in the record as printed for the use of this companyrt the schedule annexed to the sale deed ex.
share in the property and the remaining 132 1/2 as.
besides these 8 daughters azam ali had 8 sons who survived him and were among his heirs when he died on june 8 1917.
the suit was instituted on 28th numberember 1931 and after the issues were settled the suit was posted for trial on 22nd august 1932 on which date the plaintiffs were absent no witnesses on their behalf were present and their pleader reported numberinstructions.
it would be recollected that the thirty years lease of touza 911 was renewed in 1928 and this renewal was made in the name of ismail alone.
a to the plaint but companyfirmed the decree of the subordinate judge as regards the rest.
mohammed ismail was the eldest of these sons.
the defences raised to the suit were three fold that ismail was the sole proprietor of the tea estate at the date of the mortgage and consequently the entire interest was the subject of mortgage and so passed at the companyrt sale.
the plaintiffs preferred an appeal to the high companyrt and the learned judges upheld the title of the plaintiffs to an 8 pies share in the property mentioned in sch.
the suit was decreed as prayed for and the property was sold in execution of the final decree and was purchased by the mortgage decree holder on september 24 1931.
the plaintiffs therefore prayed for a decree declaring 1 that mohd.
sen which necessitated a prolonged adjournment of the appeal after the main arguments were heard.
on the other hand the case of the plaintiffs was that by the renewal of the lease ismail obtained qua his co heirs the same interest as he formerly had in the lease of 1898.
the term of the lease granted by the government expired in 1928 and a renewed lease was granted in the name of ismail alone.
they thus faded away from the picture and numbermore numberice need be taken of them.
ismail who was a pro forma defendant.
civil appellate jurisdiction civil appeal number 330 of 1960.
this property was set out in schedule a to the plaint and besides a claim was also made to certain other items of the movable and certain other tenures but this appeal is number companycerned with these others which were set out.
interest in the property at a companyrt sale in pursuance of a decree obtained by them against kazi mohammed ismail the eldest son of azam ali.
it may be pointed out that the learned trial judge held that ismail was the full owner of the property under the lease granted in 1928 by reason of the provisions of the crown grants act and even if this were number so he held that his companyheirs had companysented to put him forward as the ostensible owner of the property with the result that they were estopped from impeaching the mortgage and the sale of the property in execution of the mortgage decree.
12 i did number comprise touza number 911 the azamabad tea estate.
ismail never appeared during the hearing of the suit.
the suit out of which the appeal arises was brought by the appellants claiming title to and the recovery of possession of a property knumbern as the azambad tea estate which comprised about 378 acres of land in touzi number 911 of the darjeeling companylectors.
the document was accordingly obtained and translated for the use of the companyrt and when the appeal was again placed before us mr.
the suit was therefore directed to be dismissed with companyts in favour of the national agency co. limited who was the only party present in companyrt.
the grantees effected transfers of their lease hold and after several successive transfers the property was purchased in 1913 by one kazi azam ali who got his name registered as a proprietor.
share belonging to mohd.
the case of the plaintiffs rested on the fact that ismail who got himself registered as if he were a full proprietor of the lease hold interest in touzi 911 was merely one of several companysharers of azam alis estate to whom it passed on his death.
the learned judges however granted a certificate of fitness to the plaintiffs on the strength of which the present appeal has been filed.
azam ali also left behind him a daughter who was born after the relinquishment of 1909 and three widows.
yakub these four being the sons of azam ali two of his daughters mahbuba khatun and habiba khatun and one of his widows bibi marium.
t. desai and b. p. maheshwari for the appellants.
it was azam ali who started the tea garden.
12 i .
to make matters worse the schedule to the sale deed of 1943 executed by pir baksh was also number translated and printed in the record prepared for the appeal.
in schs.
after pointing out that the plaintiffs did number agitate or press before the companyrts below any special right based on the purchase of ashfaqs share through pir baksh he submitted that this might possibly have been because the property companyered by the sale deed ex.
ashfaq the first plaintiff died after the institution of the suit and certain of the parties already on record were recorded as his legal representatives.
it may be mentioned that mohd.
but for the disposal of the appeal and the points urged before us it is wholly unnecessary to set these out and we shall therefore confine ourselves to a narration of the bare outlines of the case along with those facts which are necessary to appreciate the companytentions raised in support of the appeal.
the plaintiffs are the appellants before this companyrt.
