1. On 15th July, 1876, Jhagru Rai who owned a one anna six pie share in village Sikandarpur with its asli and dakhili villages executed a mortgage deed in favour of Nand Gopal Dube for a sum of Rs. 1100 by which he mortgaged with possession a six pie share in the said village. The mortgage deed provided that the usufruct of property would be appropriated towards interest and at the end of 11 years on payment of principal sum in the month of Jeth the property would be liable to redemption. On 7th January, 1932, the plaintiff Bahadur Khan purchased a three pie share, that is, half the property mortgaged, from Suraj Bhan Rai a great grandson of Jhagru Rai and alleging that half the property had been redeemed by Baldeo Rai and Dud Nath Rai two other great grandsons of Jhagru Rai in 1910 and half of which came to be vested in Suraj Bhan Rai the other great grandson had been conveyed to him, brought a suit for redemption of half the property, on payment of half the principal sum secured by the mortgage. It is not disputed that Bahadur Khan is a speculator who has purchased a litigation on condition, that in the event of success half the property would be retained by him and half would be returned to the vendor Suraj Bhan Rai. Some other reliefs were included also by Bahadur Khan in this claim but these do not arise for consideration in this appeal. The defendants to the suit are in addition to defendant Suraj Bhan Rai the vendor, defendants 1 to 7, and these may be described as one son, one grandson, two daughters-in-law and two nephews and one grand nephew of Nand Gopal Dube the mortgagee. The mortgagee Nand Gopal Dube were three own brothers, Nand Gopal, Mania and Kesar and defendants 1 to 7 are sons and grandson of these brothers and the wives of a deccased son of Nand Gopal.

2. The trial Court decreed the claim for redemption on payment of Rs. 550 and this decree was affirmed in appeal and in this second appeal two questions arise for consideration, one is a pure question of fact viz., whether the mortgage of 1876 qua three pie share which is now sought to be redeemed subsists and whether the defendants are holding the property specified in the plaint under the mortgage of 1876 or under sales of 1893, 1895 and 1897 and the other question is a question of law, viz., whether the claim is barred by Section 233-K of the Land Revenue Act (Act 3 of 1901). At the time of the mortgage of 1876 the property mortgaged was an undivided share expressed in terms of pies in a village together with its Dakhili and Asli villages. In the settlement of 1882 which followed the mortgage one village was split up into five villages with Asli and Dakhili villages and the share owned by the mortgagor was expressed in gandas and bats; and the mortgage was recorded in revenue record not as a mortgage but as a theka, the mortgagor being recorded as Asl Malik and the mortgagee being recorded as thekadar. On 2nd may, 1893 Sahdeo Rai a grandson of the mortgagor is alleged to have executed a sale deed in favour of Maula Dube the brother of mortgagee Nand Gopal for a sum of Es. 600 of certain property in the said five villages and it is further alleged that out of the sale consideration Es. 550 were left with Maula Dube for payment of Nand Gopal which payment he did make in fact and as a result of this payment Nand Gopal relcased half the property from mortgage in favour of Sahdeo Rai and thus half the mortgage was extinguished. On 27th August, 1895, Sahdeo Rai and his brother, Deo Narain Rai sold some property in the said villages to Ram Baran Dube defendant 5 for Es. 1000 and on 22nd February, 1897, Sahdeo Rai sold some more property in the said villages to Nand Gopal for Rs. 600 some time after 1882 and prior to 1903 the entry of the theka disappeared from village records and whatever property remained recorded in village papers in the name of mortgagor's family or in the name of mortgagee's family it was recorded in full proprietary interest. Between 1903 and 1903 a revenue Court partition was effected in the said villages and inter alia a patti of Suraj Brian in the mortgagor's family and a patti of Ram Baran Rai in the mortgagee's family was formed and whatever property was allotted in these two pattis was full proprietary property and not a mortgagee's property. In 1910 two great grandsons of the mortgagor's viz., Baldeo Rai and Dud Nath Rai brought a suit for redemption of half the mortgage on payment of half the money alleging that half the equity of redemption had been purchased by the mortgagee and by this purchase integrity of the mortgage was broken and piecemeal redemption of mortgage was permissible, Nand Gopal Dube, the mortgagee, contested the redemption inter alia on the ground that he had not purchased half the equity of redemption and entire mortgage was subsisting but eventually without trial by a compromise half the property was redeemed and went in possession of Dud Nath Rai and Baldeo Rai. The plaintiff therefore claims that half the mortgage is still subsisting and that half the property he alleges to be included in patti Ram Baran Rai or in other words it is the property specified in the plaint and is in possession of defendants 1 to 7 by some kind of arrangement made between them inter se. The defendants on the other hand contend that the mortgage of 1876 was re-deemed in 1893 by sale of 1893 as a result of payment of Rs. 550 mentioned above and whether it was redeemed or not the property in possession of defendants from which the plaintiff seeks to evict them was not the property held under mortgage of 1376 but was held under sales of 1893, 1395 and 1397 mentioned above and under other independent titles and that the property which is now in possession of Suraj Bhan Rai the mortgagor is a part of the six pie share which was mortgaged in 1876 and it is not a part of 12 pie share which had remained free from mortgage. The Courts below have found that the alleged redemption of mortgage in 1893 is not proved and that the alleged sale of 1893 is not proved and that the sale of 1897 related to property other than that mortgaged in 1876 and that the property in possession of defendants is the property mortgaged in 1376. In arriving at these findings the Courts below were influenced by two main considerations, firstly the interpretation of the defendants' written statement. According to this interpretation the defendants' case was supposed to be that the property mortgaged in 1876 was conveyed to defendants by sales of 1893, 1895 and 1897 and that the defendants relied upon the redemption of 1893 and if that redemption fails they had no other defences to the claim. Secondly, upon the importance which the Courts below attached to the pleading of Nand Gopal in the redemption suit of 1910 to the effect that the mortgage was subsisting and half of it had not been redeemed.

3. Now, in my opinion, in both these matters the Courts below have fallen into an error. The defendants' case as I understand is this: In 1893 certain property was sold to Maula Dube. The purchase-money was not paid to the vendor but was left with the vendee to pay the mortgage money in satisfaction of the mortgage. The consideration money having been paid by the vendee to the mortgagee, the mortgagee by mutual arrangement with the mortgagor relcased the property from operation of the mortgage. If this case is proved it amounts to an extinguishment of mortgage. But even if this case is not proved the defendants' alternative case remains that the property now in the defendants' possession is not held under the mortgage of 1876. On the other hand, it is held under independent titles arising under the sales of 1893, 1895 and 1897 or some other independent titles, and the plaintiff cannot evict the defendants unless the plaintiff proves that the property in their possession is the same which was mortgaged in 1876. The defendants further contend that the property now in possession of Suraj Bhan Rai is not the balance of one anna share which was never mortgaged but is a part of six pie share which was mortgaged. It may be that the defendants may not be able to prove that the mortgage was redeemed in 1893 but that will not finish the case, still they will have a good defence if they can show that the property in their possession is held under independent titles or that plaintiff has got back whole or portion of property which was mortgaged in 1876. Again the admission of Nand Gopal in 1910 may be a piece of evidence on the question whether the mortgage was redeemed or not in 1893, but it cannot operate as an estoppel and it has not much value on the other question whether the property now in possession of the defendant is held under the sales of 1893 &c., or under independent titles or not.

4. Not only the Courts below have fallen into error in appreciating the defendants' case and in attaching undue importance to Nand Gopal's pleading in the suit of 1910 but they have misdirected themselves in other matters also. The plaintiff is a speculator who has brought a suit to enforce a state claim. Admittedly there was a mortgage transaction and certain sale transaction between the predecessor-in-interest of the parties. The property mortgaged has undergone transformation by settlement and by partition. Long prior to partition the mortgage entry had disappeared from revenue records and for years prior to suit the property was treated as full proprietary property. The heirs and representatives of the mortgagee after the lapse of 60 years cannot be expected to give all the details of old transactions and cannot be expected to bring full evidence relating to execution of old documents. In order to decide the genuineness of old documents the important consideration should be whether they were acted upon or not or whether they were supported by possession or not and too much importance cannot be attached to resemblance of signatures or to the opinion of experts about them. The main problem in the case is under what title the property in possession of the defendant from which they are sought to be evicted is held. If the plaintiff establishes that it is held under the mortgage of 1876 he succeeds and if the defendants prove that it is held under independent titles they succeed and if it is further proved that the plaintiff has got back the property which was mortgaged again the defendants succeed and connected with this question of identity of property is the entire history of 18 pie share as it has been subject of devolution by transfer or inheritance or as it has been subject of transformation by settlement or partition and wound up with the history of share are three sales of 1893, 1895, 1897, mentioned above. Before the case can be satisfactorily disposed of it is necessary that the following two issues should be determined by the lower appellate Court after giving the parties an opportunity to produce fresh evidence: (1) Whether the property sought to be redeemed whole or any portion of it as specified in the plaint is held by defendants 1 to 7 under the mortgage of 15th July, 1876? (2) Whether the entire property or any portion of it from which the defendants are sought to be evicted is held by them or any one of them under sales dated 2nd May, 1893, 27th August, 1895 and 22nd February, 1897?

5. With regard to one of the sales mentioned above there is a question of genuineness and there are previous findings on various facts of the case. I have not considered them and I express no opinion about their correctness or otherwise. But so far as the two issues now remitted are concerned I leave the entire matter at large for the consideration of the Court. If as a result of fresh investigation which will now take place the Court considers it proper to accept or confirm any previous finding it will be at liberty to do so and equally it will be at liberty to come to a fresh finding of its own. The Court will determine the issues and send the findings in three months and usual ten days will be allowed for objections. The contention of the defendants regarding the bar of Section 233-K of the Land Revenue Act need not however await for the return of findings and this point can be disposed of on the assumption of facts. I shall assume on this part of the case that the mortgage of 1876 was subsisting and for some reason or other it was not recorded in the revenue record and in 1903 to 1908 a revenue Court partition took place to which both the mortgagor or mortgagee were parties not as mortgagors or mortgagees but as cosharers and separate pattis were formed and the mortgaged property was allotted to a patti allotted to mortgagee not as mortgaged property but as in full proprietary interest and it was not allotted to the separate patti of the mortgagor and no record was made of this mortgage at the partition and no question was raised about it by any party. What then is the result?

6. The scope of Section 233-K of the Land Revenue Act (Act 3 of 1901) and the controversy which has grown round it was recently considered by the Judicial Committee in 1938 A.L.J 7861 it is now settled that a claim may be barred under S. 233-K even when it is not barred under Section 11 of the CPC and the two bars though sometimes they may overlap are independent of each other and the question of res judicata arising in a revenue Court partition is really a matter to be determined under principles of Section 11 of the CPC. It is also settled that the bar of S. 233-E comes into play even when it is possible to grant the plaintiff a relief without disturbing the pattis or mahals formed at partition or the liability of re venue which was assessed on it and it is sufficient to attract the statute if a fraction of share or revenue is affected provided the title to that share or liability to pay revenue was adversely determined at the partition expressly or impliedly against the claimant who wants to avoid the effect of partition. But I do not understand the Judicial Committee to lay down that the revenue Court partition except when such a result can be reached by application of the principles of res judicata or Section 11 of the CPC, has the effect of destroying contracts or trusts subsisting between the parties simply because entries have been made at the partition in disregard of terms of contract or trust between the parties. Indeed at the end of their judgment in 1938 A.L.J 786 at p. 794 their Lordships observed as follows: “The facts of the present case raise no question as to rights of any one to bring a civil suit pending the partition proceedings, or as to the rights of a person who is not a recorded cosharer or was not a party to the proceedings or as to any case between persons whose interests were not opposed for the purpose of the partition. A considerable number of decisions have been given upon such cases but their Lordships have not had occasion to hear argument upon them and do not deal with them more especially as their Lordships consider that their decision upon the point arising in the present case is the confirmation of the main current of authority in India.”

7. The principle underlying the application of S. 233-K seems to be that if A's property is treated as B's property at the revenue Court partition to which A and B are both parties and regarding it as B's property and not of A it is allotted to B's share and not to A's share and revenue is assessed on it as on B's share and not as on A's share then A subsequent suit by A for declaration of his title to the property against the entry of partition proceedings would be A suit affecting the partition of A mahal and would be barred by Section 233-K of the Land Revenue Act. But if A's property is allotted to B treating it as B's property and there is A contract between A and B or A trust between them under which B is entitled to own and hold the property and to pay the revenue assessed on it subject to A contract or trust between them and A is not entitled to immediate possession of property or to pay revenue about it and there is no conflict of interest between them at the partition and in ignorance of the contract or trust or in disregard of it or without providing for it in the partition the property is allotted to B then A subsequent suit by A against B for his right against that property on the basis of contract or trust would not be barred by S. 233-K.

8. If a mortgagee is in possession of property under a mortgage by conditional sale or usufructuary mortgage and in a revenue Court partition the mortgaged property is allotted to the share of the mortgagee treating him as full owner at a time when there was no conflict between the mortgagor and mortgagee qua the title to property such an allotment in my opinion does not have the effect of destroying the contract between the parties and it will be open to the mortgagor in such a case to bring a suit for redemption of property at the proper time when he gets a cause of action for the suit or is in a position to enforce his rights. The mortgagor in such a suit is not trying to disturb the partition, its distribution of share or of its revenue or the questions of title to share or liability to revenue determined by the partition. He accepts all this; he is trying to enforce his contract which entitles him to recover possession of the property in certain events which have happened. At the partition the property was rightly allotted to the mortgagee, he was entitled to hold it and to pay its revenue, the only mistake which was made was that he was treated as full owner whereas in fact he was not a full owner but was a mortgagee liable to be evicted in certain circumstances.

9. In my opinion, mistakes like these made at a partition for whatever cause such mistakes may be made so long as they do not attract the principles of res judicata cannot have the effect of destroying contracts or trusts between the parties and S. 233-K would not bar claims arising under contracts or trusts. In my opinion, the claim of the plaintiff if otherwise valid would not be barred under the provisions of Section 233-K of the Land Revenue Act. This was also the view taken on different consideration in 10. I.C 6302 As a result I remit the above mentioned two issues for determination of the lower appellate Court.

G.N/R.K

10. Order accordingly.