1. This appeal must be allowed. The facts are briefly these: In execution of a simple money decree obtained by Saheb Din and others decree-holders, against two brothers, Hidayat and Yaqub, a certain property was attached. Thereupon a brother and two sisters and mother of the judgment-debtors preferred an objection in the execution department, claiming their shares on the ground that the property attached was originally the property of the ancestor, Zakir Ali, being the father of the judgment-debtors. It appears that the names of the brothers alone were recorded in the khewat. In that view the share of Yad Ali, namely one-third at any rate, should have been exempted from the sale. It, however, appears to be a fact that the objection failed in the execution department, and the brother, sisters and mother of the judgment-debtors brought the suit, out of which this appeal has arisen, to obtain a declaration that their shares in Zakir Ali's property was not liable to be sold in execution of the decree. After instituting the suit the plaintiffs took the precaution of making an application to the Court for issuing an injunction restraining the decree-holders from selling the property till the decision of the suit. That application was also disallowed. The property was sold and was purchased by one Nand Lal, who was, later on, added as a defendant to the suit.
2. The defence taken among others was that two of the plaintiffs were not daughters of Zakir Ali, and the suit was barred by limitation and also under Section 41, T.P. Act. The Court of first instance decreed the suit, but the lower appellate Court dismissed it on the sole ground that the suit was barred by Section 41, T.P. Act. On the question of fact the learned appellate Judge held that the two plaintiffs, Mt. Razia Bibi and Mt. Bannu Bibi, were Zakir Ali's daughters. A second appeal was filed before this Court, and a learned single Judge of this Court dismissed the appeal, holding that Section 41, T.P. Act, had been properly applied to the facts of the case. In the Letters Patent appeal it is contended that Section 41 should not have been applied and the suit should have been decreed. The sole point, therefore, that we have to decide in this suit is whether, in the circumstances of the case, Section 41, T.P. Act, was rightly applied or not.
3. We do not know the exact date of Zakir Ali's death, but it appears that he died about 15 years ago. It further appears that after the death of the father the two judgment-debtors, Hidayat and Yaqub, on two occasions transferred a portion of the property of Zakir Ali. Nand Lal entered the witness box and swore that all the enquiry that he made into the title of the judgment-debtors was an inspection of the khewat and the sale proclamation which advertised the fact that the property of the judgment-debtors was going to be sold. The question then is whether this inquiry on the part of the purchaser was enough, or whether he ought to have taken further precautions and made a better inquiry into the title of the judgment-debtors.
4. Although the language of Section 41, T.P. Act, would indicate that it applies to the case of a private transfer alone, we take it, without deciding the point, that it may be applied also to the case of an auction-purchase. The proviso would still remain, namely in order to create an estoppel, on the principle on which the section is based, the transferee should make the purchase
after taking reasonable care to ascertain that the transferee had power to make the transfer and has acted in good faith.
5. It has been argued by the learned counsel for the respondent that an inspection of the khewat was enough on the part of the auction-purchaser and he need not have enquired whether the property was purchased by the judgment-debtors, or whether it had been inherited by them or what were other sources of acquisition on the part of the judgment-debtors. We are unable to agree with this view. In most cases coming from Mahomedan families, the names of the sisters and mother, who are also heirs-at-law of a deceased Mahomedan, are never entered in the khewat. If we are to say that Mahomedan sons, simply because their names alone are down in the khewat, are entitled to give a good title to a transferee, and the mother and the sisters shall be precluded from claiming their shares, it would be disastrous indeed. As remarked in so many cases, each case must be treated on its own facts. Ordinarily, when a man makes purchase, he enquires the source of the vendor's title. A mere inspection of the khewat should not suffice as a sufficiently good inquiry under Section 41, T.P. Act, especially where the vendor or the judgment-debtor is a Mahomedan. To hold otherwise would be to disregard what is a well-known practice in the land.
6. Let us consider the nature of an entry in the khewat. The mutation order has nothing of the judicial in its character as observed their Lordships of the Privy Council in Nirnna Singh v. Rudra Pratap Narain Singh A.I.R. 1926 P.C. 100 at p. 539-540 (of 48 All.).
They (proceedings for mutation of names) are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid.
It is little less than a travesty of judicial proceeding to regard the two orders of the Assistant Commissioner of Bahraich and of the Deputy Commissioner as judicial determination expelling, proprio vigore, any individual from any proprietary right or interest he claims in the immovable property.
7. These observations are based, no doubt, on the provisions of the Land Revenue Act itself, which lays down, in Section 40 (Act 3 of 1901) that all disputes regarding entries in the annual registers (khewats) shall be decided on the basis of possession. Where possession is, doubtful, the officer is directed to hold a summary inquiry as to title and to put the party, so found to be entitled to the property, into possession. It then provides that any order of possession so passed shall not debar any party from instituting a suit for the establishment of his right. It is clear, therefore, the State wants to find out from whom it should easily recover the land tax. The very law under which the khewat is prepared and maintained, does not say that the khewat is a document of title. If that be the case, how can a mere inspection of the khewat sufficiently satisfy a reasonable inquirer, as to title? The first thing that a solicitor, who has to report as to the title of, say, an intending seller, would do, is to ask for the title-deed of the man. He will, no doubt, look into the khewat. If the name be there, the solicitor would ask for the title-deed. If the intending vendor says that he did not purchase the property but he inherited it, the next question to be put to him would be, from whom he inherited. When this is known the next inquiry would be who were the heirs of the deceased ancestor. It is impossible to hold that a mere inspection of the khewat is a sufficient inquiry as laid down by Section 41, T.P. Act. We hold that the auction purchaser is not protected. Then it is difficult to see how the auction purchaser, who is a purchaser pendente lite, could escape the effect of such a purchase. He must take the property subject to the result of the suit. This point was not argued before the learned single Judge and, therefore, we need not dilate upon it. In the result we allow the appeal, set aside the judgment of this Court and the decree of the lower appellate Court and restore the decree of the Munsiff. The appellants will have their costs in all the Courts.