Hobhouse, J.

1. This suit relates to certain interests in the pergunnah of Surjapore, which appears to be an estate of great value. It was formerly in the sole ownership of a Mahomedan gentleman named Raja Fakruddin. After his death, and after much litigation, it. became divided into moieties, one known as Kishengunge and the other as Khagra. These moieties have in their turn been the subject of numerous law suits and arrangements, and have been split up into a great variety of interests. The history of the property is very complicated, and it has taken up a great deal of attention in the Courts below, and swells the bulk of the record. But for the present purpose it is not necessary to go further back than the purchase by one Ahmed Reza of the interests now in dispute. They are called the eleven gandas and the putni mahal, and each of thorn is a part of the Kishengunge moiety.

2. Ahmed Reza had two wives. In the year 1854 he married Afzulun Nissa, then a very young girl, though capable of bearing children. She brought him two sons named Haider and Sufdar, and one daughter, Munni Bibi. All are living, and are defendants in this suit. In the year 1859 Ahmed married Roushan Jehao, a lady who was entitled to valuable interests in the Khagra division of pergunnah Surjapore. She brought him four sons, of whom two are dead; the other two are plaintiffs in the suit, and the eldest, Asghar, is the present appellant.

3. Afzulun Nissa died in April 1860, Ahmed in April 1870, and Roushan in the year 1874. The suit was brought in April 1885. In it the sons of Roushan claim that the properties in dispute were part of the inheritance of Ahmed, in which they are entitled to share. The children of Afzulun Nissa are defendants on the record; but the person who is really resisting the claim is the defendant Lutf Ali Khan. He states that in or about the year 1883 he purchased the properties of Haider and Sufdar, who were then recorded as proprietors in the Collectors books, and were in possession. And ho maintains that they were the true and lawful, as well as the ostensible, owners thereof; and that the plaintiffs have no title. The plaint charges collusion between Lutf Ali and the sons of Afzulun Nissa, but the view of both Courts is that the whole family are in combination against Lutf Ali.

4. On the 11th February 1851 one Kasim Ali was declared the purchaser of the eleven gandas at an execution sale. On the 8th April 1854 Kasim Ali effected the registration of an ikrarnama, executed by himself under date of the 21st August 1852, in which he declared that the purchase-money was provided by Afzulun Nissa, and that she was the real owner of the property. It has been found that the date assigned to the deed is false, and that the true date is that of the registration. This was about the time of Ahmeds marriage with Afzulun Nissa; whether before or after is not clearly shown, nor does it seem to be important. The statement as to the source of the money is also false. Kasim was the agent of Ahmed, who found the money. Afzulun Nissa was very young--"a mere child" the High Court says,--and wholly without property. Lutf Ali naturally enough has striven to support the statements of the ikramama, but both Courts have found that issue against him. It must be taken that Kasim was benamidar and Ahmed the real owner of the property before the 8th April 1854. On that day the formal and ostensible ownership was transferred by Ahmeds orders from Kasim to Afzulun Nissa. Whether that transfer merely changed one benamidar for another, or gave a beneficial title to the property, is the first question on this part of the case.

5. It does not appear that Afzuluu Nissa over had any separate possession or enjoyment of this property, which was managed by Ahmed along with his own larger shares till long after his wifes death. She died in 1860, being still quite a young woman. Her heirs wore her mother, her husband, and her children. If the dispute had arisen then, and if it had appeared that Ahmeds intention in effecting the transfer to her was to benefit her, the Court would have had to consider the question discussed at the bar, viz., how far the Mahomedan law requires change of possession to perfect a gift by a husband to a wife of very tender years. But the dispute did not arise till after Ahmeds death, and the Courts have been guided to their conclusions mainly by the events which took place between the death of Afzulun Nissa and that of Ahmed.

6. In May 1860 a suit was institued in the name of Ahmeds second wife Roushan, to recover interests claimed by her in pergunnah Surjapore, This suit was really promoted by Ahmed himself, and conducted at his cost. It related to the Khagra division of the pergunnah. But the amount and details of the plaintiffs share are described by way of subtracting other shares and interests from the 16 annas of the pergunnah. In this way there is deducted, "Share of Raja Syed Ahmed Reza, 6 annas 1 ganda, and the right purchased by Syed Haider Reza and Sufdar Reza, minor sons of Afzulun Nissa, deceased, purchaser of 11 gandas, in all 6 annas 12 gandas ". The 6 annas 1 ganda belonged to Ahmed prior to 1851. To speak of Afzuiun Nissa and her sons as both being purchasers of the eleven gandas was inaccurate, but that does not affect the value, whatever it may be, of the recognition of their title. On this and other documents, the High Court observe that there was no reason why on Afzulun Nissas death her name should not have been dropped altogether, if the property really belonged to Ahmed, and if he wished to treat it as his own. The property he held in his own name was many times larger than the largest amount of the claims against him.

7. On the 10th January 1863, Lala Kali Sahai, another agent of Ahmed, executed a deed purporting to sell to Haider and Sufdar a share of the eleven gandas, and of other interests in pergunnah Surjapore, acquired and left by Afzulun Nissa. The share is described as "the entire share of Bibi Mehrun Nissa, mother of the late Rani Afzulun Nissa aforesaid, as mothers share." This share, it is stated, was purchased by Lala Kali Sahai, at an execution sale, in pursuance of a decree passed against Mehrun Nissa. How the money was provided does not appear. Nobody doubts that the whole transaction, whether substantial or only formal, proceeded from Ahmed. But the High Court decided that the proceedings recited in the deed were real proceedings, there being no evidence to the contrary. If so, Ahmed recognized title in Mehrun Nissa, as heir of Afzulun Nissa, and, if money was paid, it was paid for getting that title in.

8. In the year 1876 came the transaction of the putni. That estate had been granted by Ahmed and his brother Mahomed to two persons, against whose representatives decrees were executed, one in February and one in June 1867. The purchases were made ostensibly in the name of Mehrun Nissa, guardian and executrix of Haider and Sufdar, minor sons of Ahmed, and the sale deed was in favour of Haider and Sufdar. With respect to this purchase also it has been disputed who found the purchase money, and the dispute has been decided the same way as in the case of the eleven gandas. It must be taken that Ahmed found it. Still remains the question whether he intended his sons to be benamidars or beneficial owners. If the latter, possession is not as between father and infant son necessary to perfect the gift. But the possession of the property is important as evidence, and is one of the points much disputed in the case.

9. On the 1st November 1869, Ahmed being ill, but quite competent for business, handed to Mr. Campbell, who is termed by the Subordinate Judge Joint-Magistrate and Divisional Officer of the place, a petition relating to his property. Mr. Campbell received it, signed it, and had it recorded in the Collectors office. He commences thus:



This is a petition filed in person by Raja Syed Ahmed Reza, zemindar of pergunnah Surjapore.

Sir,--For more than a month I have been suffering from a sore in the mouth. Every one living is subject to death, and hence it is proper to make the under-mentioned representations to the Collector of Bheriadangi.

The facts are as follows : That foresightedness and prudence require that the paternal and ancestral property should be looked after, and the name and prestige of the family should be preserved during my lifetime. Whereas in pergunnah Surjapore a 6 annas 1 ganda share of the zamindari, besides resumed and unresumed milik lands, exclusively belongs to me, and an eleven gandas share of the zamindari of pergunnah Surjapore and the putni mahals, and the resumed and unresumed milik lands is the purchased right of the minor sons, Syed Haider Reza and Syed Sufdar Reza, and [out of] a 1 anna 13 gandas 3 cowris 1 krants 2 1/2 dunts share of the zamindari out of 16 annas 8 gandas have been decreed to Rani Roushan Jehan, it seems proper that proper management and settlement of those properties should be made in the manner following.

10. He then goes on to give directions for management after his death by the Court of Wards through a surburakar or manager. As regards the properties "exclusively belonging to me," his design is that each of his six minor sons shall have an equal share with the others and that his daughter shall have an allowance. As regards the properties now in dispute, his directions are that the services of Kishen Chunder Chowdhry and another shall be retained, find that the profits shall be remitted to Mehrun Nissa, the guardian and executrix of the minors Haider and Sufdar, and applied for their benefit.

11. It is not contended that this document was intended to operate, or can operate, as a gift inter vivos or as a will. But the Court received it as a declaration by Ahmed against his own interest, and used it as throwing a strong light on his intentions in his prior dealings with the properties.

12. Ahmed made no further disposition of his property, but died intestate, leaving his widow Roushan and his seven children surviving him. Soon after his death disputes arose between the two branches of the family, and Roushan and her sons left the family-house at Kishengunge to reside elsewhere in the neighbourhood. The plaintiffs allege that they were dispossessed of the properties in dispute by their elder brothers in July or August 1870, but the Courts have concurred in rejecting that allegation as unproved. There were disputes between Mehrun Nissa, on one side and Roushan on the other as to the true ownership, but they were not brought into litigation. It is common ground that Haider and Sufdar, or Mehrun Nissa on their behalf, were in possession as early as August 1870, and that they or their vendee have ever since remained in possession.

13. The plaint was filed on the 6th April 1885. The main defences set up were that the plaintiffs had no title and that the suit was barred by time. Both depend on the views taken of Ahmeds intentions and of his actual dealings with the properties. If it were clearly established that his wife and sons were merely benanudars and he the true owner up to his death, the time since elapsed would, owing to the minority of the plaintiffs, not be sufficient to bar the suit. Accordingly, the Subordinate Judge addressed himself to the questions of title and possession, and the High Court took the same course; and as both Courts, upon those issues, came to a conclusion adverse to the plaintiffs, they rested their decrees on that ground, and gave no formal decision upon the point of limitation. They did, however, elaborately discuss the question of fact, whether or no Afzulun Nissas sons were put into possession in Ahmeds lifetime, and found that they were. That fact, when found, was used by the Courts as evidence of the defendants title. But it is obvious that it might have been used in a more direct way to support the defence of limitation. If during Ahmeds lifetime he was out of possession and his sons in, time began to run in their favour against him, and the minority of his heirs will not give them further time to sue.

14. It was earnestly contended by Mr. Cowie that the whole decision turns upon questions of fact, and that there are concurrent findings in favour of the defendants which ought not to be disturbed, or indeed examined into any further. Their Lordships agree that there is no substantial question of law in the case, but in order to see how far the Courts have concurred in their view of the facts, it is necessary to examine precisely what their findings are, and to distinguish between the two properties in dispute. It will be convenient to take the putni first.

15. The Subordinate Judge, commenting on a number of facts, finds that the purchase of the putni in the names of the sons was for their benefit; that Ahmed Reza intended at the time of the purchase, and thenceforward till his death, that the putni should be theirs; that Haider and Sufdar have derived benefit therefrom for about 20 years; and that their beneficial enjoyment destroys the presumption of benami. He states the duration of enjoyment loosely, and exaggerates it somewhat; but the former part of his judgment shows an accurate perception of the actual dates. The main facts on which he relies are, Ahmeds petition of 1869, Roushans or rather Ahmeds plaint of 1860, and a number of zamindari papers showing that separate accounts were kept of the putni and of Ahmeds own 6 annnas 1 gunda. He also states that the plaintiffs witnesses are not, truthful; and he comments adversely on the fact that Kishen Chand Chowdhry, who is mentioned in Ahmeds petition as an important servant of the estate, and who is in the service of the plaintiffs, was not called by them, though the defendants frequently requested them to call him.

16. The High Court find in terms "that the putni was acquired.... Haider and Sufdar, and was always treated as their exclusive property. They rest their judgment mainly on the documents relied on by the Subordinate Judge and on the sale deed of 1863.

17. Their Lordships have then the First Court and the Appellate Court concurring in their conclusion as to a question of fact, and upon nearly the same considerations. The question moreover, is one for the decision of which familiarity with native families and estates, and with the practice of benami purchases, confers great advantages, Of all classes of questions this would be one of the last in which this Committee could be induced to depart from the wholesome general practice of abiding by concurrent decisions of the Courts below.

18. The case of the eleven gandas is not so simple. The Subordinate Judge finds that Ahmed intended the transfer to Afzulun Nissa to be for her benefit, and that she and her sons afterwards derived benefit from it for about 30 years prior to the suit. He considers that Afzulun Nissa. became owner at the date of the ikrarnama, and he connects it, but only by conjecture and by proximity of time, with her marriage.

19. The High Court, on the other hand, think that the transfer to Afzulun Nissa was simply a transfer from one benamidar to another. But they are so pressed with the evidence of title and of possession furnished by the plaint of 1860, the deed of sale of 1868, the petition of 1869, and the zamindari accounts, which have been mentioned before, aided, in their opinion, by the form of a rent suit of September 1869, in which Mehrun Nissa and her two grand-children are joined with Ahmed as zemindars, and by the long undisturbed enjoyment after Ahmeds death, that they cannot resist the conclusion that in some way the property was transferred before his death. They connect the transfer with Ahmeds second marriage; and their finding is that in or about the year 1859 the property was given by Ahmed to Afzulun Nissa or her sons, and was thenceforward acknowledged and dealt with by him as their property.

20. Their Lordships cannot find here any such concurrence as would justify them in abiding by the ultimate decision in favour of the defendants as some thing which ought not to be inquired into, and they have accordingly heard the case fully argued as to the eleven gandas. They are bound to say that they cannot find sufficient evidence of any gift to Afzulun Nissa in the year 1859, when no overt act was performed. For a gift in the year 1854, when the ikrarnama was executed, there is to say the least a very plausible case. To the considerations relied on by the Subordinate Judge two may be added, which assumed some prominence during the argument here. One is that no explanation can be given why the ikrarnama should have been executed at all, unless there was to be a change of ownership. Mr. Doyne frankly stated that he could not think of any, and their Lordships do not find any suggested in the lower Courts. Mr. Doyne thought it sufficient to argue that, as the purchase-money came from Ahmed, the law would presume that he was the true owner. So it would as between him and Kasim. But as between him and Afzulun Nissa the case is quite different. Ahmed was the absolute owner of an estate held for him by a benamidar. In that state of things he marries, and, somewhere about the same time, directs his benamidar to effect a transfer of the formal and ostensible title to the lady. Why should be change his benamidar Why should he take as benamidar his very young wife instead of his professional agent The Subordinate Judge says that to make benami in the names of wife or sons is never considered to be safe. Whether safe or not, nobody suggests that it was a probable or desirable change to make. The transaction is quite intelligible on the theory of a gift, but otherwise it remains an enigma.

21. Again, Mr. Doyne urged very strongly that Ahmed was alarmed at the claims which were being pressed against him, and therefore had a strong motive for setting up a benamidar. The High Court as above mentioned, have been at the pains to show that there could be no such alarm in 1860 or afterwards. But supposing that it existed in 1854, what is the inference That Ahmed would be content to interpose a sham title of a flimsy description between himself and his creditors Or that he would make a real provision which would save his wife in case his own fortunes were wrecked To their Lordships it seems that the second alternative is the more probable. They do not place much reliance on these conjectures, which are very speculative, but it seems to them that, however the case is presented, the theory of gift in 1854 affords a more probable explanation of the facts than the theory of a change of benamidar.

22. From the above observations it will appear that their Lordships incline to the view taken by the Subordinate Judge of the true intention of Ahmed in causing Kasim Ali to execute the ikrarnama of 1854. And then the possession by Afzulun Nissas sons, which is clearly found by both Courts to have existed some time, though the precise beginning of it is uncertain, prior to the death of Ahmed, may be sufficient to satisfy the rules of Mahomedan law.

23. But after all, there remains a good deal of obscurity on the question of title. Their Lordships prefer to rest their decision on the conclusions of the Courts with respect to possession, as to which they had reasonable evidence. Ahmed, being out of possession, might have brought a suit to recover it, and to have it declared that the formal title vested in Afzulun Nissa and her successors was only benami for himself. From such evidence as their Lordships have of his wishes, he never would have done so, but, however that may be, the time for bringing a suit began to run in his life, and after twelve years became an absolute bar to him and his heirs.

24. Their Lordships will humbly advise Her Majesty to affirm the decree appealed from and to dismiss the appeal with costs.