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1955 DIGILAW 180 (RAJ)

Dhulilal v. Mst. Buchi

1955-07-02

ROOP NARAIN, SHYAMLAL

body1955
This is a revision application against an appellate decision of the Divisional Commissioner Kotah dated 12-5-54 in a case under mutation proceedings whereby the concurrent decisions of the Tehsildar and the Collector were set aside. 2. We have heard the learned counsel appearing for the parties and have examined the recorded as well. The question as to whether the mutation in dispute should or should not be sanctioned by the Revenue Officer has to be determined with reference to the existing law on the subject. As provided in sec. 42 of the Siga Mal Circular No. 3 of the former Kotah State, a mutation has been held to be necessary for validating mortgages as well as gifts and all other transfers. The explanations appended to this section lay down some points of procedure. In explanation No. 2, it has been made clear that if the transferor refuses to testify to the alleged transfer, the mutation shall be rejected by the Revenue Officers irrespective of the fact whether a deed exists or not. In the present case, we find that Mst. Jadav while seeking mutation stated that she wanted to have khata transferred in the name of her daughter and son-in-law. There is absolutely nothing on record to show that the possession was ever in fact transferred in favour of these persons. The learned counsel appearing for the opposite party, frankly conceded his inability to show us any material on record which may lead to an inference that Mst. Jadav had actually handed over possession of the land in dispute to her daughter or son-in-law. He however, argued that if the case is remanded and fresh opportunity is allowed to him, he may lead evidence on the point of transfer of possession. This request is so belated as not to deserve any serious consideration. In fact if there had been an actual transfer of possession it would have been mentioned clearly in the form of mutation. On the other hand, the mutation in the case was sought merely on the ground that Mst. Jadav intended to convey her khata in favour of her daughter and that the daughter and her husband were living jointly with her. On the other hand, the mutation in the case was sought merely on the ground that Mst. Jadav intended to convey her khata in favour of her daughter and that the daughter and her husband were living jointly with her. Mutation means alteration of an entry in the Revenue Records with the object of maintaining them upto date and "making them represent the facts with regard to the respective rights and liabilities of persons as those at present are and not as they used to be or are intended to be in future. Thus there being no transfer of possession in the present case. The Tehsildar and the Collector were clearly justified in! refusing the mutation and the order of the learned Commissioner is untenable. 3. It was also argued before us on behalf of the applicant that the transfer in question militates against the provisions of sec. 43 of the Siga Mal Circular No. 3 inasmuch as Mst. Jadav had no legal necessity to transfer and had not obtained the consent of her reversioner. In other words, it has been argued that the transfer being void could not have been given effect to be the Revenue Officers. It was replied on behalf of the opposite party that the transaction was not void, at the most it could be voidable. In view of the fact that possession had not been transferred, it is unnecessary to consider as to whether the transfer was void or voidable. The mutation deserves to be rejected on this ground alone that actual possession had not passed to the transferee in this case. In the result, we agree with the order passed by the Tehsildar and Collector, Kotah though on entirely different grounds. The revision is hereby allowed, the order of the Divisional Commissioner, Kotah dated 12-5-54 is set aside, and the order of the Tehsildar and Collector, Kotah dated 11-12-52 is upheld by which the mutation was rejected.