NIRBHAYARAM Vs. DALLA

JUDGEMENT

(1.) THE appellants in these two appeals had filed two separate suits for redemption of agricultural lands against the respondents in each case, respectively. It was their claim that one Nathulal had mortgaged these lands with possession to the respondents, and that the said Nathulal had transferred the right of redemption to the appellants by a patta. This patta was never proved. THE appellants also claimed that Nathulal had made will of the property in question in favour of appellant Bhurilal who. in a family settlement, had transferred his rights to the other appellants. THE respondents in each case denied the right of the appellants to redeem the land. After framing the issues and taking evidence, the trial court decreed the suits in favour of the appellants. THE issues before the trial court were whether the land in dispute in each case was mortgaged by Nathulal, and, secondly, whether the appellants had the right to sue. THEre is no dispute regarding limitation in these two cases. On the basis of the registered mortgage in each case, both the lower courts held that mortgage by Nathulal to the respondents in each case was proved. But the crucial question is whether the right to redeem which Nathulal undoubtedly had, devolves on the appellants. Since the patta alleged to have been executed by Nathulal in favour of the appellants has not been proved, it remains to be seen whether the will in favour of Bhurilal confers on him the right to redeem. Both the lower courts have held that the will is proved. Now the property in question was muafi land and the muafi was admittedly resumed in 1958. Nathulal admittedly died before the resumption of the muafi. THEre is also no controversy that Nathulal died in 1952 when the Kawayad Muafi Mewar was the law governing muafi lands of the type in dispute in these two cases. According to this law, a muafidar had no right to give away his muafi land by a will. After the death of Nathulal, no order has been passed by this Board authorising mutation of the muafi in favour of the appellants under Sections 5 of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955. Such an order could have been passed only by this Board, and since the appellants have taken no steps to have themselves entered as muafidars in the revenue records with the approval of this Board, they cannot be deemed to have stepped into the shoes of Nathulal, the original mortgagor. As such their redemption is premature.

(2.) THE learned counsel for the appellants has strenuously urged that the will made by Nathulal at least transferred the Khadam rights to Bhurilal and the other appellants. On this basis, the learned counsel has argued that as the successor khadamdars or tenants they have the right to redeem the lands in dispute from the respondents in each case. THE learned counsel concedes that a muafi cannot be given away by will, but takes his stand on the distinction which he makes between the muafi and Khadam rights, which he says are separable. THE learned Revenue Appellate Authority rejected this plea and dismissed the two suits. THE view taken by the Revenue Appellate Authority is valid. A muafidar or jagirdar has two rights attaching to the land. One right is exemption from payment of land revenue to the grantor, i. e. the state in this case, and the other right is to have the muafi land cultivated by tenants or to cultivate it himself. When the muafidar lets the muafi land or any part of it to tenants and confers khadam rights on them, he only retains the right of exemption from payment of land revenue while his khadam rights is converted into the right to receive rent from his tenants. In case where the muafidar reserves the land for his own cultivation the muafi and khadam rights remain merged, the separation being possible only if the muafidar takes any tenants and confers tenancy rights on them. In these two suits, Nathulal never entertained any tenants, and it is the case of the appellants themselves that the lands in dispute were 'ghar Nakau', that is, self-cultivated. THErefore, Nathulal remained a muafidar in his life-time, who had not admitted any tenants but had put the respondents in possession as mortgagees. THE will that he made in favour of Nathulal was in respect of the muafi land which was self-cultivated before it was mortgaged, and this will could not have the effect of separating the muafi and the khadam rights. THE appellants can succeed in the suits for redemption only if at all they can succeed, provided they have the orders of the Board of Revenue recognising them as successors to Nathulal qua muafidars in proceedings under the Rajasthan Jagir Decisions and Proceedings (Validation) Act. THEy have not done so, thus their two suits for redemption are premature and deserve to be dismissed. Whether in the event of their being recognised as successors to the muafi of Nathulal, the appellants can maintain their suits for mortgage is a question which will have to be decided at the appropriate time, and this issue need not be preadjudged at present. It is sufficient at this stage of the litigation between the parties that he appellants cannot maintain their suits for redemption. In the result, these two appeals are dismissed. .