Judgement Appeal from a decree of the above Court (July 22, 1907) reversing a decree of the Subordinate Judge of Tahsil Biswan (August 29, 1905) in the district of Sitapur. The question raised in this case was as to the effect of the resettlement of the Province of Oudh after the confiscation as regards six villages which are in suit to the extent of a half-share, whether the settlement admittedly made with Nawab Munauwar-ud-daula, grandfather of the first respondent, conferred the proprietary title upon him beneficially or as a trustee for Wazir-un-nissa, the predecessor in title of the appellants. Law Rep. 38 Ind. App. 23 ( 1910- 1911) Muhammad Bakar V. Nawab Mirza Muhammad Bakar Ali Khan 120 The litigation related to the estate of one Kazi Muhammad Azhar, who died long before the Mutiny of 1857. leaving a widow, Musammat "Wazir-un-nissa, and a daughter, Musammat Kutbunnisa, as his heirs. The daughter died in the lifetime of her mother. Then the widow died, and two sons of her second daughter who had died in the lifetime of her father survived her, namely, Muhammad Raza, the second defendant, and Muhammad Taki, who died in 1902. The appellants, as son and daughter of Muhammad Taki, claimed the half-share in suit of the said villages as heirs of Musammat Wazir-un-nissa and the representatives in interest of the said Muhammad Azhar, alleging that they belonged to the widow at the time of her death. The title alleged by the appellants was that Wazir-un-nissa in 1849 was the proprietor, but that at her instance the villages were included in the kabuliat of the said Nawab granted by the King of Oudh in that year in respect of a taluqa named Mallampur Nagai; the effect of which was that the Nawab paid the Government revenue to the King of Oudh as taluqdar, while the widow retained the zamindari title and possession. After the annexation the first summary settlement in 1856 was made with the Nawab. At the time of the second summary settlement in 1858 various claims to settlement of these villages were advanced. On January 2, 1859, Wazir-un-nissa lodged her petition for settlement, basing her claim on her rights as owner. During the course of the proceedings the statement of her agent Husain Khan was recorded, as also statements of Syed AH Husain, the Nawabs agent, and of the qanungo of the perganah. On January 2, 1859, Wazir-un-nissa lodged her petition for settlement, basing her claim on her rights as owner. During the course of the proceedings the statement of her agent Husain Khan was recorded, as also statements of Syed AH Husain, the Nawabs agent, and of the qanungo of the perganah. The qanungo proved the widows proprietary title, and Syed Ali Husain asserted that the villages had been included in the Nawabs ilaka since 1849, and that the settlement of 1856 had been made with the Nawab because of the consent of the original zamindar. He asked for settlement on the ground that eight years arrears were due to his client, and added that whenever the original zamindar paid off the money he would get the village released. On February 19, 1859, the extra Assistant Commissioner of Sitapur made an order in terms which appear in the judgment of their Lordships. Thereupon the tahsildar was ordered to put the Nawab in possession, and on his death in 1861 a taiuqdari sanad was granted to his son, which included the six villages, and the grantees name was entered in the lists prepared under s. 8 of Act I. of 1869. At the regular settlement claims to the proprietary interest in the said villages were dismissed on the ground that they were included in the sanad granted to the Nawab. On March 15, 1871, the Settlement Officer refused to decree to the widow an under proprietary right in the whole of the said villages, but on August 31, 1871, she was granted a decree for under proprietary rights of a limited character. On January 19, 1873, the widow and her daughter executed a deed of gift of the villages to the second respondent, who asserted his title thereunder as against the first respondent in a suit to which Muhammad Taki was a party. It was compromised, and the title alleged by the appellants in this appeal was independent of the deed of gift which was said to have been in operation and was based on a title by inheritance to a half-share. It was compromised, and the title alleged by the appellants in this appeal was independent of the deed of gift which was said to have been in operation and was based on a title by inheritance to a half-share. Their plaint alleged that " in 1849 the said Musammat Wazir-un-nissa got these villages entered in the kabuliat of the late Nawab Munauwar-ud-daula, and thus he acquired the status of an amin (trustee)." They further alleged that the said Nawab was in possession of the villages in suit as a lien-holder in lieu of Rs.1651. They claimed possession of a moiety of the villages from the defendants by offering to redeem the property, or in the alternative by cancellation of the trust. During the trial the appellants abandoned the allegation of a trust and confined their claim to redemption. The Subordinate Judge held that the appellants were entitled to a decree for possession of the property in suit on payment of Rs.1651 less the cost of the suit, and he ordered that if they failed to Law Rep. 38 Ind. App. 23 ( 1910- 1911) Muhammad Bakar V. Nawab Mirza Muhammad Bakar Ali Khan 121 pay the amount on or before the end of January, 1906, they should be debarred from redeeming the property in suit, and their suit should stand dismissed with costs. In the Court of the Judicial Commissioner the appellants abandoned the claim to redeem, admitting that it was barred by s. 6 of Act I. of 1869, and pressed the claim as one for recovery of property from a trustee. The judgment was as follows— " In the present case neither the Government nor the officers charged with making the settlement made any such stipulation. They simply settled with the Nawab because he was in posses sion, and left Wazir-un-nissa to redeem her property if she could. She never attempted to do so before the orders of Government rendered redemption impossible, and therefore she cannot do so now. " Any other view of this case would destroy in a great measure the settlement of 1859 and unsettle titles all over the Province. Moreover, the Nawab and his successors have long since ceased to be mere lien-holders of the property in suit. In 1867 Wazir-un-nissa and her daughter sued for possession of the property. " Any other view of this case would destroy in a great measure the settlement of 1859 and unsettle titles all over the Province. Moreover, the Nawab and his successors have long since ceased to be mere lien-holders of the property in suit. In 1867 Wazir-un-nissa and her daughter sued for possession of the property. They might have set up a trust then, but they did not do so, and their suit was dismissed. In 1870 they sued for sub-settlement of the property. That suit also was dismissed. In 1871 they claimed under proprietary rights of various kinds, and ultimately got a decree for a substantial nankar for sir and other rghts. The position of the parties under this decree is incon sistent with the continuance of the relation of trustee and cestui que trust if any such relation ever existed. The possession of the defendant and his predecessor has been adverse to the plaintiffs and their predecessors for at least thirty years past as regards the proprietary title to the villages. In my opinion the plaintiffs have entirely failed to substantiate any case of trust, and their suit is barred by the failure of their predecessors to set up a case of trust in 1867 and 1870, and is also barred by limitation." De Gruyther, K.C., and Ross, for the appellants, contended that the decree of the Judicial Commissioner was wrong and should be reversed. They repeated the admission that s. 6 of Act I. of 1869 barred a suit to redeem, but they contended that the settlement with the Nawab recognized the rights of Wazir-un-nissa in the villages in such manner as to render them enforceable against the grantee under the settlement, who took subject to her claims and as her trustee in respect thereof. Reference was M made to Hasan Jafar v. Muhammad Askari (( 1899) L.R 26 Ind. Ap. 229, 232.), Hardeo Bux v. Jawahir Singh (( 1877) L. R. 4 Ind. Ap. 178, 192, 197.); Sykes Compendium, pp. IB, 14, 168; Act XV. of 1877, art. 144; Act I. of 1869, ss. 3, 4, 5, and 6; and Sykes, p. 168. Sir R. Finlay, K.C., and Dube, for the respondents, were not heard. The judgment of their Lordships was delivered by MR. AMEER ALI. Ap. 178, 192, 197.); Sykes Compendium, pp. IB, 14, 168; Act XV. of 1877, art. 144; Act I. of 1869, ss. 3, 4, 5, and 6; and Sykes, p. 168. Sir R. Finlay, K.C., and Dube, for the respondents, were not heard. The judgment of their Lordships was delivered by MR. AMEER ALI. This appeal arises out of a suit brought by the plaintiffs to recover possession of a half-share in certain villages in the district of Sitapur, in Oudh. The villages in question belonged originally to one Kazi Muhammad Azhar, but some years prior to the annexation, either for convenience in the payment of Government demands or from motives of greater security, they appear to have been included, with the consent of Muhammad Azhars widow Wazir-un-nissa, in the ilaka or estate of Nawab Munauwar-ud-daula, the ancestor of the principal defendant in this case. Thus in 1859, when the first settlement of the Province was carried out, the villages were found to be in the possession of Munauwar-ud-daula. On that occasion Wazir-un-nissa applied as malik or owner for settlement of the villages. The claim was resisted by the Nawabs agent and was ultimately dismissed. It is upon the orders passed by the extra Assistant Commissioner in the settlement proceedings, coupled with certain statements made by the Nawabs agent, that the present action is based. On Law Rep. 38 Ind. App. 23 ( 1910- 1911) Muhammad Bakar V. Nawab Mirza Muhammad Bakar Ali Khan 122 January 21, 1859, in answer to a question by the Settlement Officer as to his ground of objection to Wazir-un-nissas claim, he stated as follows — "A.—This village has been included in our (my clients) ilaka for the last seven or eight years, it neither being mortgaged nor sold. But the arrears for eight (not clear in the original) years regarding this village are still due to us (my client). Whenever the original zamindar, i.e., the claimant, will pay off our (my clients) money he will get the village released. There is no other objection." “ Q.—Who mortgaged this village to you (your client) ? "A.—We (my client) got this village from the wife of Kazi Muhammad Azhar. Whenever the original zamindar, i.e., the claimant, will pay off our (my clients) money he will get the village released. There is no other objection." “ Q.—Who mortgaged this village to you (your client) ? "A.—We (my client) got this village from the wife of Kazi Muhammad Azhar. We know nothing about the claim of Karamat-ul-lah." And on February 19, 1859, the extra Assistant Commissioner made the following order—" The objection of the agent of Nawab Munauwar-ud-daula is that she at her own instance got the villages included into his taluqa, hence she can get the villages released on payment of the arrears and takavi. As the facts of the case have been recorded in detail, therefore it is ordered that the kabuliat shall remain as usual in accordance with possession in the name of the agent of Nawab Munauwar-ud-daula. The claim of the Thakurs, who have been out of possession for 100 years, is dismissed. The zamindari right of the wife of Kazi Muhammad Azhar appears to be correct. She should file a separate application to have the money due to the agent to Nawab Munauwar-ud-daula settled by arbitration and have her villages released. Whenever the villages, on payment of the money due to Nawab Munauwar-ud-daula, are released, the mortgagees shall be at liberty to put forward their claim. Let the file be submitted to the Deputy Commissioner for perusal and approval." As the proceedings related to a number of villages, similar orders appear to have been recorded on other dates. On February 24, 1859, the Deputy Commissioner, to whom the matter was submitted for approval, confirmed the settlement with Munauwar-ud-daula and dismissed Wazir-un-nissas claim. For the next eight years no action seems to have been taken in respect of the property in suit, but in 1867, when what is called the regular settlement of the Province was in progress, Wazir-un-nissa, in conjunction with her daughter Kutbunnisa, applied that the villages might be settled with her. Her claim was again resisted on the ground that they were included in the sanad granted by Government to the Nawab. Her application for settlement was accordingly dismissed on October 31, 1868. Two years later the two ladies applied for sub-settlement in respect of the villages in question, but as they could not prove possession within the period prescribed by law, their application was rejected on August 30, 1871. Her application for settlement was accordingly dismissed on October 31, 1868. Two years later the two ladies applied for sub-settlement in respect of the villages in question, but as they could not prove possession within the period prescribed by law, their application was rejected on August 30, 1871. Their rights, however, to nankar allowance and other dues were admitted and affirmed in proceedings taken about the same time. In 1873 Wazir-un-nissa and Kutbunnisa transferred by a deed of gift their right and interest in the said villages to defendant No. 2, who is the son of another daughter of Muhammad Azhar. In 1898 the defendant No. 2 instituted a suit against the defendant Bakar Ali Khan to recover possession of those villages. His claim was dismissed by the first Court, but was compromised on appeal. The present action is brought by the son and daughter of a brother of defendant No. 2, who claim to be entitled to a half-share in the property in suit. Their contention is that the proceedings in 1859 constituted the ancestor of Bakar Ali Khan either a mortgagee or trustee on behalf of Muhammad Law Rep. 38 Ind. App. 23 ( 1910- 1911) Muhammad Bakar V. Nawab Mirza Muhammad Bakar Ali Khan 123 Azhars widow. The latter position was abandoned in the first Court where the case was tried, on the basis that the Nawab was a mortgagee or lien-holder. The Subordinate Judge upheld the plaintiffs contention, and made a decree in their favour under s. 92 of the Indian Transfer of Property Act (IV. of 1882) for 11 redemption " on payment of a sum specified. On appeal by the defendant Bakar Ali Khan, the Judicial Commissioners have held the suggestion that Government settled the properties with the Nawab as trustee for Wazir-un-nissa, or that he undertook to hold the same as trustee for her, to be untenable. On the question whether the plaintiffs were entitled to any relief on the hypothesis that he was a mortgagee, they held that s. 6 of Act I. of 1869 was a bar to the action. They accordingly dismissed the suit. The plaintiffs have appealed to His Majesty in Council. It is conceded on their behalf that, having regard to the provisions of s. 6 of Act I. of 1869, their claim for redemption cannot be sustained. They accordingly dismissed the suit. The plaintiffs have appealed to His Majesty in Council. It is conceded on their behalf that, having regard to the provisions of s. 6 of Act I. of 1869, their claim for redemption cannot be sustained. But it is contended that, as the settlement with the Nawab was made subject to the rights of Wazir-un-nissa, who was declared entitled to recover possession of the villages on payment of the money due from her, the present suit comes strictly within the principle enunciated by this Board in Hasan Jafar v. Muhammad Askari. (L.R. 26 Ind. Ap. 229.) Their Lordships agree with the Judicial Commissioners in holding that the facts of the two cases are not at all analogous. In Hasan Jafar v. Muhammad Askari (L.R. 26 Ind. Ap. 229.) the settlement was effected with the person who took it on a distinct understanding which, in their Lordships judgment, constituted him a trustee for his co-sharers who were not present at the time. In the present case the Settlement Officers proceedings can bear no such meaning. The Nawab was in possession of the villages by virtue of some arrangement regarding the exact nature of which there is no evidence. At the time of settlement he or his agent opposed the claim of Wazir-un-nissa to have the properties settled with her, on the ground that he was entitled to remain in possession until the moneys he had disbursed on her account were paid off. That objection was upheld, and the settlement was made with the Nawab " in accordance with possession," and the lady was directed to proceed by separate application to get her property released by payment of the money due by her. In their Lordships judgment there is no warrant for the contention that the correlative obligation that lay on the Nawab to release the property on payment of the money created a trust or constituted him a trustee for Wazir-un-nissa. No step appears to have been taken by her in compliance with the directions of the Settlement Officer; and the Nawab was allowed to remain in possession of the property without any attempt on her part to get it released. In 1867, when she applied for the regular settlement of the villages, an adverse title was distinctly set up on his behalf. In 1867, when she applied for the regular settlement of the villages, an adverse title was distinctly set up on his behalf. From the date of the dismissal of her application in 1868 on the ground that they were included in his taluqdari sanad the Nawabs possession was adverse to her. The present suit was not instituted until 1905, and is thus clearly barred. The appeal, therefore, fails and must be dismissed with costs. And their Lordships will humbly advise His Majesty accordingly.