JUDGMENT

Mulla, J. - This second appeal arises out of a proceeding under the Encumbered Estates Act. An application u/s 4 of that Act was made by the respondents in this Court and it was in due course sent to the Special Judge, Orai. The respondents stated in their application the various debts to which they were liable and one of those debts was a usufructuary mortgage deed, dated 22nd February 1910, for Rs. 3500 which had been executed by Girdhari Lal, the maternal grandfather of the first two respondents, Badri Prasad and Phuljari Lal. In their written statement u/s 8 the applicants gave details of certain zamindari properties belonging to them and one of these properties was zamindari property comprising 124.16 acres, bearing a jama of Rs. 273-12-0 with Rs. 27-6-0, thok Shiva Ram, mauza Hardoi. It is with this property alone that we are concerned in the present appeal. With regard to this property a claim was lodged by the appellants, Seth Deokinandan and Mt. Phul Kunwar. They alleged that this property had been purchased by their 'predecessor-in-interest Seth Bhoj Raj, and belonged entirely to them. They denied that the applicants had any right, title or interest left in this property. The Courts below have decided that Seth Bhoj Raj did not acquire any title to this property and hence the objection or the claim made by the appellants has been dismissed. They have now come up in second appeal to this Court.

2. In order to understand the case of the parties it is necessary to set out a few facts regarding which there is no contest. The property in question originally belonged to one Ghanshiam Gir Goshain who executed a mortgage in favour of Seth Bhoj Raj, the predecessor-in-interest of the appellants, in the year 1896. In the year 1897, one Ganga Bai obtained a simple money decree against Ghanshiam Gir Goshain and in execution of that decree the property in question was put up for sale and was purchased by Ganga Bai herself subject to the previous mortgage of 1896. In the year 1903, Act 2 of 1903 called the Bundelkhand Land Alienation Act was passed. That Act prevented the permanent alienation of any land by an agriculturist except in favour of an agriculturist of the same tribe or of an agriculturist living in the same district in which the property was situated. The Act provided that no transfer by an agriculturist in favour of a non-agriculturist could be effected without the sanction of the Collector. It is admitted that Ganga Bai was an agriculturist as contemplated by Act 2 of 1903. In the year 1908 She transferred the property in suit under a sale deed to one Bhawani Prasad, who is also admitted to have been an agriculturist under Act 2 of 1903. On behalf of the appellants it was alleged in the Courts below, and there is also a finding to that effect in their favour arrived at by both the Courts, that this sale was only ostensibly in favour of Bhawani Prasad but the real purchaser was Seth Bhoj Raj. It is admitted that Seth Bhoj Raj was a non-agriculturist and under Act 2 of 1903 he could not have taken a sale from an agriculturist without the sanction of the Collector. Indeed, the Courts below have found that the sale in favour of Bhawani Prasad was merely a device on the part of Seth Bhoj Raj to circumvent the law. After Bhawani Prasad's death, his widow again transferred the property in question along with certain other properties to Girdhari Lal, the maternal grandfather of the first two respondents, Badri Prasad and Phuljari Lal. This transfer was made in the year 1910. It is again admitted that Girdhari Lal was an agriculturist within the meaning of Act 2 of 1903, so that the sale by Bhawani Prasad's widow in his favour was a valid sale under that Act. It is, however, again alleged on behalf of the appellants that this sale was a benami transaction, the real purchaser of the property being again Seth Bhoj Raj. On this point also the finding of both the Courts below is that this was another attempt by Seth Bhoj R