AHSAN DAR Vs. MOHD DAR

JUDGEMENT

(1.) THIS is a plaintiffs second appeal directed against the judgment and decree of the District Judge at Srinagar who dismissed their suit reversing the decision of the City Judge, Srinagar. The facts are not now in dispute and lie within a brief compass. The property in suit belonged to deceased Ismail Dar who was the husband of the first defendant. Mst. Khadmi On his death it was mutated in the name of his widow, the first defendant. But the first defendant contracted a second marriage and the second defendant was born out of that wedlock. Soon after her second marriage a dispute arose between her and the collaterals of her former deceased husband, Ismail Dar. The latter appear to have endeavored to get mutation of the suit property changed to their names. That was resisted by the first defendant. It appears that the two brothers of the first defendant supported her in the mutation proceedings, Eventually, the Revenue Officer passed orders in the mutation proceedings directing that the Property be mutated in the name of the first defendant for her life and thereafter in the name of her two brothers as owners The third plaintiff is one of those brothers and plaintiffs 1 and 2 are the sone of the other brother who died since. The first defendant after some years executed a gift deed of the property in favour of her son. the second defendant Thereupon the plaintiffs brought the suit out which this appeal arises for a declaration that the suit property would vest in them absolutely on the death of the first defendant and that the second defendant could derive no manner of right or title under the gift deed executed by his mother who had only a life interest in the property. The first court decreed the suit relying upon the order passed by the Revenue Officer in the mutation proceedings and on the strength of it upholding the plea of estoppel against the defendants. On appeal by the defendant, the decision of the trial court was reversed and the suit was dismissed. The plaintiffs have now come up to this court in further appeal.

(2.) IT is common ground that the plaintiffs appellants cannot inherit the property of deceased Ismail Dar under the Mohammedan Law by which the parties are governed. Their claim is exclusively based on the order passed by the Revenue Officer in the mutation proceedings. They contend that this order is based on the oral admission of the first defendant, Mst. Khadmi. According to them the only legal effect of this order is that Mst. Khadmi obtained only a life interest in the property and that on her death it was to vest absolutely in her brother (plaintiffs). The plaintiffs follow up this argument by urging that the defendants are estopped from contending contrary to the terms, tenor and purport of the order passed in the mutation proceedings.

(3.) THE sole point for determination in this appeal is therefore whether the order passed in the mutation proceedings has the effect of transferring title in the suit property to the plaintiffs on the death of the first defendant and whether it operates as an estoppel by record against the defendants. It is agreed on both sides that the suit property which is agricultural land 9 kanals and 11 marlas in extent is easily worth more than a thousand rupees. Title to this property can therefore be transferred only by a registered deed. There is such deed in the instant case. Therefore, there can be no valid transfer of the property. This is an elementary legal proposition But the learned counsel for the appellants has invoked S. 17 (2)(vi) of the Registration Act to support his contention that title the property in the present case could pass without registration 17 (2)(vi) of the Registration Act exempts any decree or order a court, except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of a suit or proceeding from the operation of clauses (b) and (c)of sub -S. vi of S 17 But it is clear that S. 17 (2) (vi) relates only to decrees and orders passed in judicial proceedings. In the present case the order is passed by a Revenue Officer in mutation proceedings which are not judicial proceedings Order passed in such proceedings cannot properly deal with the question of title to property, Nor are those proceedings really concerned with transferring ownership of property from one person to an other. In Nirmal Singh v. Lal Rudra Partab, A. I. R. 1926 P. C. 100, Lord Atkinson said: -