JUDGMENT
1. First Appeals Nos. 157 and 158 of 1926 are connected and are defendants appeals arising out of two suits for pre-emption. Under a sale-deed dated 9th August 1924, shares in two khatas Nos. 2 and 7 in mahal Mustaqil and mahal Ihtamli of village Tirmau were sold to the defendants. Two suits were separately instituted. The plaintiff alleged that the defendant-vendees were strangers and their names were wrongly recorded in the revenue papers. The defence raised by the defendants was that they were cosharers on the same footing as the plaintiff. The defendants claimed title through one Jagannath. Before the trial commenced the plaintiff’s counsel made it clear that he was not admitting the title of Jagannath at all. The Court below has found in favour of the plaintiff and has decreed the claim except as regards mahal Ihtamli in which the defendants had become cosharers by virtue of another deed of gift dated 15th November 1920.
2. Sewak was a proprietor in this village and he died some time ago and was succeeded by his widow Mt. Jasodia. She also died some time about 1918. After her death the patwari reported that the names of Sewak’s collaterals Ramadhin and another should be entered in the column of proprietors. An objection was made on behalf of Jagannath, who claimed that Mt. Jasodia had made a gift of the property in his favour and he was in possession as a donee. Apparently there was no registered deed and Jagannath was relying on an oral gift. On 7th May 1919, an application was filed on behalf of Ramadhin purporting to act for himself and as sarbarahkar (or guardian) of Tissu and Gopi in which the gift in favour of Jagannath was admitted, and there was a statement that the petitioners refused to take back the property and agreed to the mutation of names in favour of Jagannath. The Court accordingly ordered that the name of Jagannath should be entered in place of the deceased Mt. Jasodia.
3. The plaintiff led no evidence in the Court below to show that any one other than Ramadhin and Gopi were the collarals entitled to succeed on the death of Mt. Jasodia. Nor was it made clear before the Court who Tissu was as whose guardian Ramadhin had acted. In the absence of such evidence the Court below has assumed that Ramadhin and Gopi were the next reversioners of Mt. Jasodia’s husband,’and that therefore there was a consent on the part of the person in whom the property had become vested on her death. The learned Judge has also assumed in favour of the defendants and this consent of the reversioners will estop them from ousting Jagannath and from taking possession from his vendees, the present defendants, but has held that consent cannot confer perfect title on Jagannath and his vendees so long as the full period of 12 years has not expired.
4. In appeal before us it is contended that inasmuch as the reversioners who became entitled to the estate are estopped from recovering possession of the property from Jagannath and his transferee, and the heirs who would come after them would have to claim through them, the defendants had acquired an indefeasible title which is by no means liable to be defeated and that inasmuch as they are in possession in the capacity of proprietors they can defeat the claim of the plaintiff. Great reliance is placed on the Full Bench case of Fateh Singh v. Rukmini Ramanji Maharaj A.I.R. 1923 All. 387.
5. In the case before the Full Bench there was a registered deed of transfer by the widow in her lifetime, but the consent had been given by the reversioners before they had become entitled to the estate. In the present case the consent was given after such title had accrued, but there had never been any deed of gift by the lady at all. Without deciding that the consent of Ramadhin and Gopi would operate as an estoppel against them and their representatives, we may for the purposes of this appeal assume that it would so operate. In this view it is unnecessary for us to examine whether this consent was for consideration or not. But it is clear to us that no interest in immovable property can validly pass from one person to another in the eye of the law without there being a registered document of transfer. Under Section 123, T.P. Act, a gift can only be effected by means of a document duly registered. In the absence of such document, the proprietary interest in the property could not have passed from Mt. Jasodia to Jagannath or from Ramadhin and Gopi to Jagannath. Even if Ramadhin and Gopi or their heirs be estopped from claiming the possession of the property it is impossible to hold that proprietary title has actually become vested in Jagannath or his transferee.
6. For a person to become a cosharer under the Agra Pre-emption Act it is necessary under Section 4, Sub-clause (1) that he should be entitled as proprietor to a share in the mahal. A right short of a proprietary title, e.g., that of a lessee or mortgagee, will not do. A person in adverse possession without actual title cannot be said to be entitled as proprietor to the property in his possession so long as his title has not matured by prescription. We think that the expression “indefeasible interest” in Section 20 also refers to full proprietary title which is not liable to be defeated. So long as proprietary title has not been acquired the defendant cannot successfully resist a claim by a cosharer for pre-emption. Estoppel against the heirs is one thing and acquisition of title as proprietor is another. And of course the word interest cannot include an interest less than a proprietary interest.
7. The Court below has held that the agreement for mutation of names in favour of Jagannath in the revenue Court was not in the nature of a family arrangement which would confer title on Jagannath. The application itself does not indicate that there had previously been any such family settlement. Nor is it clear that there was any bona fide dispute, nor could Jagannath, the son-in-law of Mt. Jasodia, be treated as a member of the family of Ramadhin and Gopi. The plea of a family settlement also was not raised in the written statement. We are, therefore, unable to hold that there was any such family settlement as, even in the absence of a registered document, could confer title on Jagannath. The result therefore is that the defendants cannot resist the plaintiff’s claim on the basis of the alleged oral gift made to their vendor Jagannath.
8. Under the gift of 15th November 1920, the defendants have acquired a share in patti No. 10 in mahal Mustaqil only. The shares sold are situated in khewats Nos. 2 and 7 which are in patti Sheo Din and patti Kalu respectively. According to the khewat, mahal Mustaqil is divided into several bahris, each bahri being subdivided into pattis and each patti into several khewats. Khewat No. 1 is in patti Sukhnandan. Khewats Nos. 2 and 3 are in patti Sheo Din. The areas of the two pattis are totalled separately and then the two are added together to make up bahri Gur Bakhsh Singh. The same process is followed as regards other bahris. It is clear to us, therefore, that bahri is a sub-division of the mahal very much like a thok, which is found in eastern districts. The plaintiff is undoubtedly a cosharer in bahri Gur Bakhsh in which khewat No. 1 is situated. The defendants are not cosharers in this bahri. The plaintiff accordingly has preference under Section 12, Sub-clause (3).
9. As regards khewat No. 7 which is situated in patti Kalu, we find that it is a part of another bahri called bahri Sheo Shankar and khewat No. 10 in which the defendants had become cosharers is situated in the same bahri. As regards this khewat, therefore, the plaintiff cannot have preference as against the defendants. The learned Subordinate Judge has accordingly dismissed the claim with regard to this last mentioned khewat. In our opinion the view taken by the Court below was correct and the decrees are right. Both the appeals are accordingly dismissed with costs.
