JUDGMENT
1. These are appeals against a judgment dated 23rd December 1931, of the learned Subordinate Judge of Moradabad, by which he decided two suits, Nos. 37 and 38 of 1931, of his Court. The suits were connected, and so are the present appeals, which can conveniently be disposed of by one judgment. The facts, briefly stated, are that in the year 1884 Hijri (=1765-1766 A. D.) a ” farman” was issued by the then King of Delhi, Shah Alam, conferring upon one Saiyid Ghulam Asadullah Khan, an ancestor of the defendants in both the present suits, an income of Rs. 2,368, to be realized from lands in the Amroha pargana of the “Sambhal Sarkar,” as it is described in the “farman.” A condition of the grant was that the grantee and his descendants should “keep it safe from all the changes and transfers.” This grant, it appears, has always been recognized by the various Governments that have succeeded the Government of the Kings of Delhi: vide extracts from statements showing perpetual “Muafi” holdings printed at p. 83 of the printed book of First Appeal No. 179, and p. 2 of the supplemental record in the printed book of First Appeal No. 180. In the suit out of which First Appeal No. 179 arises a mortgage deed is in question which was executed on 17th February 1920, by one Saiyid Ejaz Husain in favour of one Brahmanand for a sum of Rs. 7,500, carrying interest at the rate of nine annas per hundred rupees per mensem, compoundable annually. The mortgaged property consisted of a certain share in a village called Burhanpur, in the Amroha pargana. In the suit out of which First Appeal No. 180 arises a mortgage deed was in question executed on that same date, 17th February 1920, by Saiyid Ahmad Hasnain and Saiyid Muhammad Askarain, for a sum of Rupees 7,000, carrying interest at the rate of nine annas per hundred rupees per mensem, compoundable annually. The mortgaged property consisted of a village called Cheontipura, in the Amroha Pargana. The mortgagors, the defendants in both the suits, as has been mentioned already, are descendants of the original grantee, Saiyid Ghulam Asadullah Khan.
2. Saiyid Ejaz Husain is now dead, and is represented in the suit out of which Appeal No. 179 arises by his four sons, Saiyid Mumtaz Husain, Saiyid Imtiaz Husain, Ahmad Hasan, (alias Hamid Hasan), and Saiyid Nasim Husain; his daughter, Mt.Hamida Khatun; his grandson, Saiyid Askarain; Zafar Hasan, the husband of Saiyid Ejaz Husain’s deceased daughter, Mt. Hajira Khatun; Mt. Jafra, the daughter of Mt. Hajira Khatun; and Baqar Hasan, the son of Mt. Hajira Khatun. These descendants of Saiyid Ejaz Husain were impleaded in that suit as defendants, and along with them were impleaded, as subsequent transferees, Mt. Madina Khatun, the wife of Saiyid Askarain, and Saiyid Muhammad Raza, the son of Saiyid Mumtaz Husain, and also impleaded, as a subsequent mortgagee of part of the property, was one Rameshar Parshad. The total amount claimed in that suit by the plaintiff-mortgagee, Brahmanand, was Rs. 12,417-14-6. In the other suit the defendants were Saiyid Ahmad Hasnain (he is apparently the same man as the Ahmad Hasan, alias Hamid Hasan, of the connected suit), and Saiyid Muhammad Askarain, the mortgagors, and along with them were impleaded, as a transferee, Mt. Madina Khatun, the wife of Saiyid Muhammad Askarain; subsequent incumbrancers in the persons of Lala Kesho Saran, Lala Mangal Sen and Lala Rameshar Parshad; and the lessee of part of the property in the person of one Mukhtar Ahmad. In that suit a total sum of Rs. 9,789-7-0 was claimed by the mortgagees, Nittia Nand and Krishna Nand, who at the time of the institution of the suit, were minors sunder the guardianship of their mother.
3. The learned Subordinate Judge decreed both the suits in full. Six of the defendants are the appellants in Appeal No. 179, and the mortgagors, Saiyid Ahmad Hasnain and Saiyid Muhammad Askarain, are the appellants in Appeal No. 180. The contentions urged before us in both the appeals on behalf of the appellants were the same namely, (1) that under the terms of the original grant the income bestowed on the ancestor of the appellants was expressly made non-transferable; and (2) that the income must be regarded as a pension within the meaning of Section 11, Pensions Act (23 of 1871), and that the money in question is exempt under the provisions of Section 11 from seizure, attachment or sequestration by process of any Court in British India, at the instance of a creditor, for any demand against the alleged pensioner, or in satisfaction of a decree or order of any such Court. Section 12, Pensions Act, was further relied upon, and it was argued that the mortgages on which the present suits were brought were under the provisions of that section null and void.
4. As to the first of these points, it has first to be considered whether the original grant has been proved. The actual “farman” has not been produced, what has been produced is a copy of it purporting to have been issued by a Qazi in 1189 Hijri. The original is said to have been destroyed in peculiar circumstances, which appear in the evidence of two witnesses, Sibt Basul and Zafar Husain, on behalf of the defendants. Sibt Basul is connected by marriage with the defendants’ family, and says that his father, Siadatullah, was in possession of the original “farman.” Sibt Basul has a brother named Nihal Ahmad, who is in Government service in the agricultural department. Nihal Ahmad, according to Sibt Rasul, took the “farman” to show to his superior officers, but he is subject to fits of insanity, and tore the farman” up and burned it. Zafar Husain, who says he is related to Nihal Ahmad, alleges that in 1924 Nihal Ahmad had a fit of insanity, and was brought from Ghazipur to Amroha. While at Amroha he burned some papers, including the farman.” Zafar Husain professes actually to have witnessed this being done, and says that Nihal Ahmad told him he had burned the “farman.”
5. This remarkable story was disbelieved by the learned Court below, and we see no sufficient reason to accept it. For the defendants it was contended that the very strangeness of the story is some guarantee of its truth, since it was not necessary for it to be invented; all that the defendants needed to do was to say that the original “farman” had been lost. Such an allegation, having regard to the antiquity of the document would have been a sufficiently plausible explanation for its not being produced.
6. This line of argument is not without some show of reason, but, as we have said, we agree with the learned Subordinate Judge in his estimate of this story – he has, in our opinion, given satisfactory reasons for rejecting it. As we find it impossible to believe the version given by the defendants’ witnesses of the circumstances in which the original document is said to have been destroyed, it follows that we are not convinced that it has, in fact, been lost or destroyed, and we cannot admit the copy that has been produced as secondary evidence under Section 65(c), Evidence Act. Even if that copy were admitted however there is still a serious difficulty in the way of the appellants, and that difficulty is this. Section 90, Evidence Act, according to a recent decision of their Lordships of the Privy Council reported in Basant Singh v. Brij Raj Saran Singh 1935 ALJ 847 cannot be so applied as to raise any presumption as to the genuineness, or due execution, of the original of a document which has been lost, and of which a copy is produced as secondary evidence under Section 55, Evidence Act. The relevant portion of their Lordships’ decision appears at pp. 852 and 853 of the report; we do not think it necessary to reproduce it here “in extenso.” In this state of the law, it would not have been possible for us to treat the copy produced as evidence of the geunineness and due execution of the original “farman,” even had we felt able to admit the copy as secondary evidence tinder Section 65, Evidence Act. It is, in the circumstances, not really necessary for us to say more about that part of the argument which is based upon the alleged contents of the “farman,” and the condition of non-transferability of the grant. The learned Court below however has pointed out that Section 15, Regn. 37 of 1793 provides as follows:
Altamgha, ayma and mudadmash grants are to be considered as hereditary tenures. These and other grants, which from the terms or nature of them may be hereditary and are declared valid by this regulation, or which have been or may be confirmed by the British Government or any of its officers possessing competent authority to confirm them, are declared transferable by gift, sale or otherwise, and all persons succeeding to such grants, by whatever mode, are required to register their names in the office of the Collector within six months after they may succeed to the grant….
7. The provisions of this Regulation were extensively modified or repealed in later years: vide “Field’s Regulations of the Bengal Code,” pp. 13 and 14 of the chronological table, but we have not been shown that as regards this matter of the transferability of the grants dealt with in Section 15 the provisions were ever abrogated. The learned Counsel for the appellants admitted that no British land-records have ever embodied any condition of non-transferability in respect of these grants. The grant with which we are now concerned, it should be mentioned, was of the kind known as “altamgha,” which, according to Field, (Introduction, p. 1, foot-note,) means a “Royal Grant,” so called from two Turkish words signifying red” and ‘seal,” such grants having been formerly sealed with a red seal. Our conclusion, therefore, is that that part of the argument on behalf of the appellants which is based on the terms of the alleged grant must, for a variety of reasons, fail.
8. There remains the argument based on Sections 11 and 12, Pensions Act. In support of his contention on this point the learned Counsel for the appellants relied on Bench decisions of this Court reported in Harnam Das v. Faiyazi Begam 1922 20 ALJ 172 and Lakhmi Chand v. Madho Rao 1930 ALJ 1326. In the latter case it was held that an assignment of revenue amounted, in the circumstances of that case, to a pension within the meaning of Section 11, Pensions Act, and hence was not transferable, having regard to the provisions of Section 12 of the Act. On behalf: of the respondents, we were referred to two other Bench decisions of this Court, reported in Lachmi Narain v. Makund Singh (1904) 26 All 617 and Bhopal Rai v. Shiam Sunder Lal 1929 ALJ 724 . In the, former case it was held that zamindari granted (though not revenue-free) by Government as a reward for services rendered is not a pension. In the latter case-Sen, J., said (p. 732):
A grant of land revenue as such cannot be comprised in the term “pension.
9. Ashworth, J., took a different view. He said (p. 734):
It has been suggested that the word “pension” in Section 12 will not include a grant of land revenue, but it appears to me that this is not so.
10. There appears therefore to be authority in this Court both on the side of the appellants and on the side of the respondents. Our view is that the grant in this case cannot be regarded as a “pension” for the purpose of Sections 11 and 12, Pensions Act. Certain sections of the Act clearly recognize the difference between pensions, and grants of money, or grants of land revenue: vide Sections 4 and 8. The phraseology of Sections 11 and 12 however is narrower, and in our opinion must be presumed to be designedly so. We do not think that the “muafi” rights enjoyed in the present case by the appellants and their predecessors can be regarded as a “pension” within the meaning of Sections 11 and 12, Pensions Act. That was the view of the learned Subordinate Judge, and we agree with him. Before taking leave of this point,, we must mention that S. Muhammad “Askari” (Askarain?), one of the defendants-appellants in Appeal No. 180, himself sold some of the Burhanpur property for Rs. 4,000 on 14th May 1928: vide Ex. 4, at pp. 113 and 114 of the printed book of Appeal No. 179.
11. The principal defendants (the mortgagors), it should be mentioned, appear afterwards to have acquired zamindari,, as well as “muafi” rights in the mortgaged property, both the deeds purport to mortgage both “muafi” and zamindari rights. It was suggested by the learned Counsel for the appellants that what ought to be proceeded against in satisfaction of the amounts due to the mortgagees are the zamindari, as distinguished from the “muafi” rights, the zamindari rights being saleable subject to the rights of the mortgagors as “muafidars.” Having regard to the view we have taken of the nature of the “muafi” rights, it is not necessary for us to consider the matter from this point of view.
12. Equity, we may say in conclusion, is clearly on the aide of the mortgagees (respondents), though the appellants were, of course, entitled to avail themselves, if they could, of any provisions of law which would enable them to defeat the mortgagees. In our view the appellants have failed to show that the mortgagees are in any way debarred from proceeding against the mortgaged property in satisfaction of their claims, and we accordingly think the decision of the learned Subordinate Judge was correct. We dismiss both these appeals, with costs.
