Iqbal Ahmad, J.
1. Not with standing the argument of Dr. M.L. Agarwala. I remain unconvinced that the decrees of the Courts below are wrong.
2. The suit giving rise to the present appeal was filed by the plaintiff-respondent, Charitter Rai, for the redemption of a mortgage dated the 28th of May, 1912, executed by Charitter Rai and his brother Nihora Rai, in respect of two plots of land, in favour of Subedar Rai, father of Defendant No. 3. After the date of the said mortgage, it appears that Ram Sundar Rai, son of Nihora Rai, alone executed a sale-deed of the entire zemindari property including the plots in dispute in favour of Defendant No. 4 on the 13th of May 1921. Thereafter, on the 20th of May 1921, Ram Sundar Rai applied to the Revenue Court, that mutation of names be effected in favour of Defendant No. 4 with respect to the property transferred to him by the sale-deed referred to above. Charitter Rai who admittedly was the owner of half of the share in the property conveyed by the sale-deed, and who had not joined in executing the sale-deed, filed an application in the Revenue Court on the 25th of July 1921, intimating that he had no concern with the property and that the vendee's name be entered in the revenue papers. Thereafter, on the 12th of July 1922, Ram Sarup Rai, Defendant No. 1 filed a suit for pre-emption, with respect to the sale made by Ram Sundar Rai, and the suit was eventually decreed and the pre-emptor, having complied with the terms of the decree, was substituted in place of the purchaser.
3. After all this, Charitter Rai brought the present suit for redemption of the mortgage noted above. His case was that the sale by Ram Sundar Rai alone was ineffectual to convey to the vendee his rights and interests in the property covered by the sate deed, and as such Defendant No. 1 could not acquire his rights and interests in the mortgaged property. In this view he alleged that he had a subsisting right to redeem the mortgage made by him and Nihora Rai. The defence to the Suit was that Ram Sundar Rai was the manager of a joint Hindu family consisting of himself and Charitter Rai, and that the sale by him was with the consent of Charitter Rai, and as such Charitter Rai had no right to maintain the suit. It was further urged in defence that the plaintiff consented to the sale and as such the claim was barred by the principle of estoppel,
4. The trial Court held that there was no evidence to substantiate the allegation of the defendants that the sale by Ram Sundar Rai was with the consent of Charitter Rai, plaintiff-respondent, and further it came to the conclusion that the petition filed in the Revenue Court purporting to be a petition of Charitter Rai was a forgery, and that petition was never filed by Charitter Rai. On these findings that Court decreed the plaintiff's suit.
5. On appeal by some of the defendants the lower appellate Court has held, that the application dated the 25th of July 1921, was a genuine document, and had bean filed by Charitter Rai in the Revenue Court, but it has held that there was nothing to show that it was because of that petition, or because of certain other acts or omissions or declarations of Charitter Rai, that the defendants-appellants changed their position for the worse, and as such the plaintiff-respondent was not estopped from maintaining the suit. It has further held that the allegation of the contesting defendants that Ram Sunder Rai had sold the property as a manager of the family for legal necessity remained entirely unsubstantiated. On these findings the lower appellate Court affirmed the decree of the trial Court.
6. In appeal before me it is argued that the sale by Ram Sundar Rai of Charitter Rai's share was only voidable, and as Charitter Rai did give his consent by the petition referred to above, filed by him in the Revenue Court, a good title to Charitter Rai's share passed to the vendee and that title passed to Defendant No. 1 by the decree in the pre-emption suit. I am unable to agree, with this contention. The sale by Ram Sundar Rai could only convey to the vendee the rights and interests of Ram Sundar Rai in the property conveyed. It was absolutely ineffectual to in any way adversely affect the rights and interests of Charitter Rai in the property covered by the sale. The sale so far as it concerned the share of Charitter Rai in the property transferred was absolutely void, and notwithstanding the sale, Charitter Rai retained a title to his share. If the title to Charitter Rai's share remained with him, the petition filed by Charitter 'Rai in the Revenue Court during the course of mutation proceedings, or the order of the Revenue Court directing mutation of names could not have the effect of determinating that title. The proprietary rights of Charitter Rai could pass to the vendee by a registered instrument and admittedly no such deed was ever passed by him. As has been recently pointed out by their Lordships of the Privy Council in the case of Nirman Singh v. Lal Rudra Partab Singh A.I.R. 1926 (P.C.). 100 mutation proceedings are not judicial proceedings in which the title to, and the proprietary rights in, immovable property are determined but that
they are much more in the nature of fiscal enquiries 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 the greater confidence that the revenue for it will be paid.
7. Apart from all this, the only right and title that passed to the contesting defendant by the decree in the pre-emption suit was the right and title conveyed to the vendee by the sale-deed executed by Ram Sundar Rai and that was only the right and title of Ram Sundar Rai as to his share in the property 'covered by the sale-deed.
8. For the reasons given above, I hold that the Courts below were right in holding that the title to the property remained with Charitter Rai, and the, plea of estoppel having failed, the plaintiff was entitled to the decree granted to him by the Courts below.
9. The result is that I dismiss the appeal with costs including in this Court fees on the higher scale.