Basil Scott, Kt., C.J.
1. The facts of this case are shortly that one Chatur, being the registered Khatedar of certain unalienated lands which were subject to the provisions of the Land Revenue Code, executed a rajinama in the year 1904, in which he stated to the Mamlatdar that he had relinquished the khata of the Survey numbers in favour of Desaibhai Gokulbhai, and requested that the necessary mutation of flames should be made in the records. Desaibhai Gokujbhai, on the same day, namely, the nth August 1964, executed a kabulayat to the Mamlatdar undertaking to pay the land revenue that might become due from time to time in respect of that khata, and prayed that his name might be entered in the Government records as the registered Khatedar.
2. The lower appellate Court has found that Chatur intended to abandon all his interest in favour of Desaibhai, and that that was his intention in passing the rajinama. '''Notwithstanding these transactions, Chatur, in 1911, purported to sell the same property to the plaintiffs by a registered sale-deed, and the plaintiffs filed this suit for the purpose of obtaining possession from Desaibhai. The plaint alleged that Chatur effected a mutation of names in favour of the defendant Desaibhai Gokulbhai to enable the latter to manage, and that Desaibhai's occupation was merely that of a manager on behalf of Chatur. That case, however, has not been made out in the lower Courts, and the facts found are, as already stated, that there was an abandonment by Chatur in favour of Desaibhai with the intention of Desaibhai becoming the owner of the property.
3. It is contended on behalf of the appellants-plaintiffs that Desaibhai could not acquire the interest of Chatur in the property except by registered sale-deed, that the effect of the findings is a gift of immoveable property by Chatur to Desaibhai, since the application of the Transfer of Property Act to this Presidency, and that therefore, under Section 123, a registered document is essential.
4. We have, however, to consider what is the legal effect of a rajinama on the occupancy holding of a person who has not created any equitable interests in any third party, for in this case we have no valid equitable interests created in any third party by way of mortgage or otherwise so far as the evidence shows. The relinquishment is an abandonment by the Khatedar of his claim to hold the property, subject to the payment of the revenue, and, therefore, prima facie his interest is extinguished. That view obtains support from the fact that relinquishments under Section 74 of the Land Revenue Code are expressly mentioned in the Registration Act, Section 90, whereby they are exempt from registration. Why is it necessary that they should be specifically exempt from registration unless they are or may be under certain circumstances obnoxious to the provisions of Section 17 of the Registration Act? They are, we think, specifically exempt from registration because prima facie they extinguish the right of the relinquishing Khatedar to hold the occupancy as against Government, subject to the payment of the revenue, Of course it may often be that equitable interests are reserved by the relinquishing Khatedar by arrangement with the incoming Khatedar who takes his place, for example as was suggested in the plaint filed in this suit in order that Desaibhai might come in as manager,, mutation of names being effected purely for the purpose of convenience. That is always a possibility. But the facts found in this case preclude us from holding that that is the true view of the relations of the parties, Chatur on the one hand and Desaibhai on the other. We take it, then, that the relinquishment was, and was intended to be, an extinguishment of the interest of Chatur in these Survey numbers, and the effect of the kabulayat was that Desaibhai came in by agreement with Government as an occupant in his own right. That being so, how can Chatur retain any interest which is capable of transfer in 1911 It appears to us that the plaintiff got nothing by his sale-deed, since Chatur had no interest left which he could transfer. This decision does not conflict with that lately pronounced by a Bench of this Court in Sakhararn Keshav v. Ramchandra Ganesh1 for there the abandoning Khatedar had already created a mortgage in favour of the defendant, and his abandonment was intended to operate as a transfer by way of sale to that defendant. The defendant pleaded it in answer to a claim by the Khatedar to redeem, but it was held that there had been no abandonment to Government of an unencumbered property. Therefore if the mortgage subsisted the right of redemption still subsisted, inasmuch as it had not been sold in the manner provided by- the Transfer of Property Act. That is the explanation of that decision and it in no way conflicts with the decision in this case. We, therefore, affirm the decree and dismiss the appeal with costs.
5. I agree that the appeal in this case must be dismissed. As has been shown, and it is perfectly plain, if the rajinama of 1904 did operate as a relinquishrnent of Chatur's rights in this property, then neither he nor the plaintiffs Nos. I and 2, who are subsequent assignees from him> can recover anything; for all the rights they seek to recover were parted with in 1904. The method of relinquishment adopted in 1904 was that provided by Section 74 of the Land Revenue Code, made more easy of accomplishment by the provision of Section 90 of the Registration Act which exempts such rajinamas from registration. It is a particular method provided by law for the relinquishment of an occupancy, namely, the giving up, the annihilation in fact, so far as the occupant is concerned, of his occupancy rights. Therefore, it seems to me, in virtue of cl.(a) of Section 2 of the Transfer of Property Act, nothing provided in that Act can affect a relinquishment made in this way. That is sufficient for our decision in this appeal, and it is not desirable to say anything on the more difficult questions that would arise if we had to consider the total effect of a rajinama and a kabulayat taken together, instead of having, as here, to consider only the effect of the rajinama.
1.(The following judgment was delivered by Scott C.J. and Shah J. in L.P. Appeal No. 31 of 1914, on the 30th August 1915 :-
SCOTT C. J.-This is an appeal under the Letters Patent against a judgment in a redemption suit under the Dekkhan Agriculturists' Relief Act. On the 3rd of May 1904, a document in form of a sale-deed was executed by the plaintiff to the defendant, and that document was taken to the Registrar's office, but in the office an endorsement at the instance of the plaintiff was added to the effect that the plaintiff was to have the right to repay the purchase money and redeem within three years. The fact of an agreement to that effect does not appear to have been seriously disputed in the Court of the Subordinate Judge, and therefore that, as we understand, is the explanation of the opening passage of his judgment where he says: 'The oral agreement being admitted there is no question of the applicability of Section 9 of the Indian Evidence Act, or Section 10A of the Dekkhan Agriculturists' Belief Act. The Court has to start with the deed as subject to that agreement, and only to declare what construction it is capable of, i. e., whether it amounted to s mortgage or to an absolute sale with condition of repurchase. The learned Judge held that it amounted to a mortgage on the ground that the relation of debtor and creditor continued between the parties, and it has not been contended before us that the document did not amount to 8 mortgage. It has, however, been argued that in consideration of the mortgagee agreeing not to press for payment of three outstanding bonds in the year '905, and to pay in addition a Burn of KB. 10 more to the mortgagor, the latter should abandon his equity of redemption, and that in consequence of that agreement the mortgagee allowed the bonds to become time-barred, To effectuate this arrangement the mortgagor executed a rajinama in favour of the Mamlatdar under Section 74 of the Land Revenue Code, and the mortgagee executed a kabulayat. It is contended upon the authority of various decisions in this Court that the rajinama combined with the kabulayat operated to transfer the title of the mortgagor to the mortgagee. Now none of those decisions touch the points which have been argued here. The point raised upon B. 54 of the Transfer of Property Act, (a section which appears to have escaped notice in some of those cases) is that it being established in this case that an equity of redemption remained in the mortgagor, that equity of redemption on being transferred to the mortgagee for consideration would amount to a sale. But it could only be a valid sale if effected by a registered instrument. Here there is no instrument of any kind between the mortgagor and the mortgagee with reference to the transfer of the equity of redemption. Therefore there has been no transfer.
Then it is' argued that the abandonment of his right of suit in respect of the money-bonds by the creditor in consequence of the agreement between the parties raises a case of estoppel against the mortgagor seeking redemption. With regard to that, it is sufficient to repeat what is said by the Assistant Judge in his- judgment 'The facts might have given rise to a question of estoppel but this has not been pleaded in the lower Court nor made a ground of appeal nor argued before the Assistant Judge,' There being no issue of estoppel, and the evidence not having been directed to the point, we cannot in this fourth judicial investigation decide upon such a new point. The mortgagee is not really prejudiced in the matter because an account has been taken under the Dekkhan Agriculturists' Belief Act and the sums secured by the money-bonds, action upon which is now barred, have been allowed to him in the account of principal under Section is. We, therefore, affirm the decree of the lower Court and dismiss the appeal with costs.)