JUDGMENT Sulaiman, C.J.
1. This is a plaintiff's appeal arising out of a suit for possession over half shares in properties specified in lists A and B of the plaint and for mesne profits and coats. The plaintiffs' claim to be the heirs of one Mt. Taslima Bibi who died in January 1928, and alleged that she was the owner of these properties, having purchased the property in list A and having inherited the property in list B from her father. The defendant who is the husband of the deceased Mt. Taslima Bibi and would be entitled to a half share in the inheritance left by her, resisted the suit on the ground that the plaintiffs were not the residuary heirs of Mt. Taslima Bibi, that the property in list A had been purchased by the defendant himself out of his own money fictitiously in the name of Mt. Taslima Bibi and he is the owner thereof, and there was a further plea that in con-sequence of a previous proceeding in a revenue Court the plaintiffs were estopped from maintaining this claim "under the law relating to oaths" and Clause (2), Order 23, Rule 3, Civil P.C., and estoppel under Section 115, Evidence Act. At the trial the defendant's vakil made a statement that his client had no objection if the relief claimed by the plaintiffs as regards the property in list B were granted, irrespective of the fact whether the plaintiffs are related to Mt. Taslima Bibi or not (p. 17).
2. The learned Subordinate Judge without going into the evidence has disposed of the suit on preliminary questions of law. He has decreed the claim of the plaintiffs with regard to the property in list B as admitted by the defendant, but has dismissed the claim as regards the property in list A on the ground that in view of the previous proceedings in the mutation Court the plaintiffs are estopped from maintaining the claim. This finding is challenged in appeal. It is therefore necessary to mention in detail what happened in the revenue Court. Unfortunately neither the applications of the parties before the Assistant Collector nor the judgment of the Assistant Collector nor even the grounds of appeal before the Collector have been produced. The defendant was basing his defence on a plea of estoppel and in order to remove all ambiguities he should have produced these documents in order to show dearly what the dispute between the parties was.
3. All that we know is that the first revenue Court had decided a mutation case consequent upon the death of Mt. Taslima Bibi against the present plaintiffs, Abbas Khan and Mobin Khan, and in favour of the present defendant Muhammad Ali and the matter was taken up in appeal to the Collector by the present plaintiffs. In the appellate Court an application signed by Muhammad Abbas Khan personally and by Babu Bishnath Prasad, Mukhtar for Mobin Khan, was filed on 19th November 1928 (p. 69). It was verified by Muhammad Abbas in person and was filed and verified by Babu Bishnath Prasad, Mukhtar, on behalf of Mobin Khan (p. 71). It read as follows:
In the above case it is submitted that if Muhammad Ali respondent swears by the Holy Book that according to Mahomedan law the appellants are not holders of right, judgment may be given against the appellants who shall not seek remedy anywhere.
4. Muhammad Ali accepted this offer and made a statement on oath, on 10th December 1928. He stated that he had himself purchased the property in the name of his wife out of funds acquired by him personally and that his wife had not invested any money but her name only stood recorded and that the proceedings in the name of Mt. Taslima Bibi were fictitious. He also said that he did not know in what way Abbas was related to him. He further said that he did not know what relationship the appellants bore to Mt. Taslima Bibi (p. 75). On this statement the appellate Court dismissed the appeal pointing out that appellants had "left decision of this case to the testimony of" the respondent. He held that the purchase was a be nami transaction and consequently nobody, but Muhammad Ali himself was entitled to get the property. The learned Collector pointed out that Muhammad Ali had stated that he was not a ware of the relationship of the appellants to him or to his wife. He disallowed the appeal on the basis of the application of the then appellants. The unsuccessful parties did not take the matter up to the Commissioner or the Board of Revenue. In January 1930 they filed the present civil suit.
5. It may also be stated that after the death of Mt. Taslima Bibi, Abbas Khan and Mobin Khan who are apparently cousins, entered into an agreement on 28th March 1928, (p.59), under which authority was given to Mohd. Abbas Khan to look after the "suit for mutation of names" which was then pending. Authority was given to Muhammad Abbas to look after that case and to be responsible for doing all necessary work therein. Muhammad Abbas appointed Babu Bishnath Prasad along with others as the Mukhtars on his own behalf and on behalf of Mohammad Mobin This Mukhtarnama (power of attorney) is dated 11th October 1928, (p. 67). There is no doubt that Mohammad Abbas Khan was authorized to appoint Babu Bishnath Prasad as the Mukhtar of Mohammad Mobin in the appeal which was pending in the mutation case. It recites that it was necessary for them to look after the appeal for mutation of names and accordingly the persons named therein were appointed Mukhtars on their behalf, and they would have power to file applications...deed of compromise or settlement or deed of relinquishment...affix signatures or write verification endorsements by their pen...or do any necessary pairawi (conducting of case) in the above mentioned case. Everything done by the said pleaders or Mukhtars was to be acceptable to the executants as if done by themselves.
6. The learned Subordinate Judge has rightly held that the terms of this Mukhtarnama are very wide and they certainly include a power to dispose of the case by offering to abide by the oath of the opposite party. I think that when the Mukhtars were given authority to compromise and settle the claim and to sign any application on behalf of the executants and do any other act which they considered necessary, they had authority to end the litigation by agreeing to abide by the oath of the opposite party. This is undoubtedly one of the recognized methods of ending a pending litigation. This view is in accordance with the opinion of the majority in the recent Full Bench case of Mt. Akbari Begam v. Rahmat Husain A.I.R. 1933 All. 861. The question whether they had authority to bind the executants as regards their title to property which may thereafter be raised in a Civil Court is another matter.
7. It is the defendant who is raising the plea of estoppel based on an offer made by the present plaintiffs which was accepted by him. The burden lies on the defendant to show that there was a clear and unambiguous admission of the plaintiffs which completely estops them from enforcing their rights under the law in a Civil Court. If there is any ambiguity or doubt, it would be difficult to hold the plaintiffs bound by their statement and the burden of establishing estoppel would not be discharged by the defendant. As pointed out above we have not before us the proceedings of the original Court. The nature of those proceedings is therefore a matter of mere inference from what happened in the appellate Court.
8. As pointed out by their Lordships of the Privy Council in Nirmam Singh v. Rudra Partab Narain Singh A.I.R. 1926 P.C. 100, proceedings for the mutation of names are not "judicial proceedings" in which the title to, and proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They 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 pub into occupation of it with greater confidence that the revenue for it will be paid.
9. An examination of the sections of the Land Revenue Act, would show that where an entry is wrong, an application for the correction of the entry may be made under Section 33(2). On the other hand, when a person obtains possession by succession or transfer of any property a report of the succession or transfer is made under Section 34, and under Section 35, the Tahsildar can, in undisputed cases, record the same in the registers; but if the succession or transfer is disputed, he refers the case to the Collector who disposes of it after deciding the dispute in accordance with the provisions of Section 40. Now under Section 40 all disputes are decided in the first instance on the basis of possession, but if in the course of inquiry into a dispute the Collector is unable to satisfy himself as to which party is in possession he is to ascertain by summary inquiry who is the person best entitled to the property and has to put such person in possession. But no order as to possession under this section can debar any person from establishing his right to the property in any Civil Court having jurisdiction. It has accordingly been held by the Board of Revenue of these Provinces, and I agree with the conclusion of the Board, that Sections 34 and 40 cannot apply to a case where no question of succession or transfer arises, but a claimant alleges that the deceased had no title at all and that he himself had a paramount title. The Board has further held that where the entry of the name of the deceased had continued for a large number of years and had been repeated in annual registers, the claim of a true owner based on the assertion that the person whose name is recorded was his benamidar cannot be treated as one for the correction of papers under Section 33(2), but that his remedy is in a Civil Court: see Mohammad Mohsin v. Mohammad Hadi (1914) 25 I.C. 827.
10. In the absence of any papers, one would therefore be inclined to suppose that the dispute which arose in the mutation Court on the death of Mt. Taslima Bibi was as to who was entitled to have his name entered in her place on the basis of possession or failing proof of such possession on the basis of prima facie title. In such a dispute it would be assumed that the deceased was the owner in possession and no party would be allowed to question the title of the deceased herself. It would be open to the defendant to resist the application of the heirs of the deceased on the ground either that they were not in possession at all and that the defendant was in fact in possession, or on the ground that they were not the legal heirs of the deceased. But it must be admitted that the language of Section 40 if taken by itself and without regard to the language of Section 34, would seem to be wide enough to cover the case of a true owner who is resisting the application of the alleged heirs of a deceased on the ground that be himself is the true owner. The first question is as to the exact Offer which was made in the application dated 19th November 1928. It was in these terms:
If the respondent swears by the Holy Book that according to Mahomedan law the appellants are not holders of right, etc.
11. The offer was not that the defendant should swear that the appellants' ancestor had no right to the property. Emphasis was laid on the applicability of the Mahomedan law, and instead of questioning the right of the deceased to the property in express terms the words were whether the appellants themselves were the holders of right under the Mahomedan law. This expression would therefore indicate that what the applicants wanted was a denial on oath by the defendant that the appellants were the legal heirs of the deceased under the Mahomedan law. To my mind it is very important to note that the oath was to be given as to whether the appellants were the holders of right. It was not said that he should swear that the deceased had no right. The oath was to be confined to the right of the appellants and there was no express mention of the right of the deceased lady herself. These circumstances indicate, or at any rate, leave a certain amount of doubt as to whether the appellants did not mean that the respondent should swear that they were not the legal heirs under the Mahomedan law. If the offer were that he should swear that their ancestor had no right to the property at all, it might have been worded in a different way. It seems to me that there is reasonable ground for holding or, at any rate for doubting that the appellants did not leave the question of the title of the deceased lady to be settled by the oath of the defendant. Another circumstance which confirms this view is that, as pointed out by their Lordships of the Privy Council, the mutation proceedings related to the question of the entry of names only and no question of title arose at that stage. Ordinarily title to immovable property is extinguished by a registered deed and not by a mutation order. Much less could there be, properly speaking, any question as to the title of the deceased lady herself. On the other hand if possession was doubtful and the appellants were not the legal heirs of the deceased their appeal was bound to be dismissed.
12. Strictly speaking, the question whether the deceased herself, had any title to the property could not, or at any rate, should not have been allowed to be raised in the mutation proceedings. As noted above the records of the trial Court and the grounds of appeal not being before us it is not easy to find out in what shape it was raised. But from what happened in the appellate Court it appears that the question might well have been raised. In his deposition Muhammad Ali referred to his own ownership and the benami character of the title-deed in favour of Mt. Taslima Bibi, his wife; and, the Collector in his order referred to the same fact. But the plaintiffs are entitled to say that they cannot be bound by anything that Muhammad Ali said in addition to what he had been invited by their counsel to say nor are they bound by what the Collector might have understood them to have meant. If there is to be any estoppel it must be strictly based on the statement made in their application and on nothing else. There is no doubt that Muhammad Ali did not answer the question left to him in the application in the exact form in which it was stated therein. He did not categorically say that according to Mahomedan law the appellants had no right. That he meant to say this has to be inferred only indirectly from his statement that the deceased had no title at all. As regards the relationship of the plaintiffs with the lady, he expressed his ignorance.
13. The learned Subordinate Judge has thought that the subsequent acquiescence of the plaintiffs is a point against them, but this supposed acquiescence arises from their failure to object to the statement of Muhammad Ali or to appeal from the order of the Collector. But it may well be that the plaintiffs were advised that the statement of Muhammad Ali not being exactly to the point, it was more prudent to leave the matter in the incomplete way in which it stood, or else the Court might send for him a second time to complete his statement. Similarly they might have been advised not to go to a higher revenue Court lest it should send the case back for a further statement of Muhammad Ali. If Muhammad Ali's statement was not conclusive, then the mutation of names would not harm the present plaintiffs as the matter could be litigated again in the Civil Court. However reprehensible the conduct of the plaintiffs may seem it is not possible to hold them to be estopped from going behind the statement of Muhammad Ali, if it did not strictly comply with the offer made by the plaintiffs to him. Of course, the order of the revenue Court cannot in itself stand in the way of the plaintiffs. I am therefore constrained to hold that in spite of what happened in the revenue Court, the plaintiffs cannot be estopped from establishing their right in the Civil Court, In this view of the matter it is not necessary to consider whether the statement "shall not seek remedy at any other place" necessarily implies an abandonment of the right to sue for establishing their title in the Civil Court.
14. The position of Mobin Khan is stronger still because in my opinion, there is an additional ground why he should not be bound by the revenue Court proceedings. Under the agreement dated 28th March 1928, (p. 59) he had appointed Muhammad Abbas Khan to look after the mutation case. This attorney appointed Babu Bishnath Prasad along with others as the Mukhtar under the Mukhtarnama, dated 11th October 1928, in order "to do pairawi" in (look after) the appeal for mutation of names. The authority was obviously confined to terminating the mutation proceedings. As stated above no question of title to the property was or could have been in dispute in the mutation case. The proceedings were confined to the entry of names in the annual registers. It therefore seems to me that without an express power to confer title by compromise, the Mukhtarnama should not be stretched so as to cover authority for settling any dispute as to the title itself. It would be dangerous to hold that Mukhtars appointed for conducting mutation proceedings should have an implied authority to give up their client's claim for the ownership of the property itself. Such a result can hardly be assumed to be contemplated when a person is appointed a Mukhtar to conduct a mutation proceeding. This circumstance may lend support to the view that the statement in the application in itself was not intended to affect the title to the property as established by subsequent civil suit, but was confined to the entry of names in the revenue papers only. In any ease it cannot be held that the Mukhtar had authority to abandon the right of his client to establish his claim later on in the Civil Court. I therefore find it very difficult to hold that there was any valid agreemend on behalf of Mobin Khan which has the effect of depriving him of his title to the property or prevents him from maintaining the civil suit. It has been already noted that the signature of Muhammad Abbas Khan was professedly on his own behalf and the verification also was on his own behalf. The application was filed and verified on behalf of Mobin Khan by his mukhtaram. I must accordingly hold that there is no estoppel against the appellant Mobin Khan at all. I would therefore send the case back to the Court below for disposal according to law.
Thom, J.
15. This is a plaintiffs' appeal in a suit for possession and for mesne profits. The plaintiffs claimed possession of the property in dispute as the heirs of one Mt. Taslima Bibi. According to the plaint Mt. Taslima Bibi died childless in the month of January 1928 survived by her husband. The plaintiffs claimed to be her nephews and entitled to succeed to her property under the Mahomedan law. The property in dispute is set forth in two schedules, Schedules A and B, attached to the plaint. So far as Schedules B is concerned there is now no dispute. The property in this schedule is the property which Mt. Taslima Bibi inherited from her father, and the respondent in the trial Court stated that he had no objection to offer to the plaintiffs' claim with regard to it. So far as the property in Schedules A is concerned however the respondent claims that it is his and that Mt. Taslima Bibi in respect of this property was merely benamidar. On the death of Mt. Taslima Bibi the appellants applied for mutation of names in respect of her property. This application was opposed by the present respondent. In the trial Court the appellants were unsuccessful and they appealed to the Collector. In the Collector's Court they filed an application in the following terms:
In the above case it is submitted that if Muhammad Ali respondent swears by the Quran that according to Mahomedan law the appellants have no right, judgment may be given against the appellants who shall not seek remedy at any other place.
16. This application was dated 19th November 1928. On the same date the case was ordered to be put up on the 8th December, and notice was issued to the respondent who agreed subsequently to decision of the case by reference to his oath on the Quran. On 10th December 1928, Muhammad Ali, respondent, appeared in Court and took the oath before the Collector. He deposed as follows:
Mussammat Taslima Bibi was my wife. She died 10 or 11 months ago. I purchased this property in the name of my wife out of funds acquired by me personally. My wife did not invest any amount. Only her name stood recorded. I purchased the property from Khairat Ali and it comprised 96 bighas of sir land. At first this property was mortgaged to me. My father-in-law had no property. He had only property paying Rs. 2 as revenue. I do not know in what way is Abbas related to me. All the proceedings in the name of Mt. Taslima Bibi were fictitious. I do not know what relationship do the appellants bear with Mt. Taslima Bibi.
17. On the same date after the respondent's statement on oath the Collector made the following order:
The appellants left decision of this case to the testimony of Haji Muhammad Ali, on the oath of Quran. Haji Muhammad Ali has appeared in the Court and testified on the oath of Quran that the property in dispute was bought by him with his own money, in the name of his wife Taslima Bibi. It was benami transaction and consequently nobody but Muhammad Ali himself is entitled to get the property. It should be noted that the dispute had arisen on the death of Mt. Taslima Bibi, wife of Haji Muhammad Ali. He states that he is not aware of the relationship of the appellants to him or to his wife. The appeal must therefore be disallowed on the basis of the application of the appellants themselves. The appellants will pay the costs and the vakil's fee Rs. 5 to the other party.
18. Dissatisfied with the outcome of the proceedings in the revenue Courts the plaintiffs filed the present suit claiming possession of the property in dispute on the ground that they are the heirs of Mt. Taslima Bibi. The learned Sub-Judge of Azamgarh, who heard the case, decided that the plaintiffs' claim was barred because they had agreed to abide by the decision of the revenue Court following upon the reference to the oath of the respondent. In the result he dismissed the suit so far as the property in Schedule A is concerned. The plaintiffs now appeal. The main grounds of appeal are that the application of 19th November 1928, not having been signed by the plaintiffs themselves and their vakil not being authorized under the power of attorney granted to him by the plaintiffs to enter into any agreement to accept the defendant's statement as conclusive and binding, they are not bound by the statement of the defendant made on 10th December 1928 and further in respect of the proceedings in which the issue was referred to the oath of the respondent were proceedings in the revenue Court in which the only issue was the relationship of the appellants to Mt. Taslima Bibi, the decision in that Court cannot affect their right to have recourse to the civil Court to have the question of title to the property in dispute decided. They further state in their grounds of appeal that the statement that Mt. Taslima Bibi was the benamidar of the respondent was irrelevant to the issue referred to and his oath and cannot affect the right of the plaintiffs to have their rights determined by the civil Court. It is also objected that because the plaintiff, Mobin Khan, had not himself personally signed the application in the Collector's Court his title to institute the present suit cannot be affected by the proceedings following upon that application.
19. So far as the question of the authority of the vakil to agree to refer the dispute between the parties to the oath of the respondent is concerned the matter is concluded by authority, a Full Bench of this Court having held that a power of attorney such as was granted in this case does include the authority to the vakil to refer the question at issue between the parties to the oath of one of them. I am of opinion also that the second ground of objection referred to above is equally without substance. There can be no doubt that the reference to the oath of the respondent was a contract between the parties to the dispute in the revenue Courts. That contract is binding to its full extent upon the parties. The fact that the contract was entered into in the course of mutation proceedings in the revenue Court does not appear to me of any relevance so far as the question of estoppel in the present suit is concerned. It is true that in the revenue Court the question at issue was one of possession and not of title, but there is no reason why in such proceedings in the revenue Court parties should not enter into an agreement as between themselves to have the whole question of their right and title to the property in dispute determined by a reference to the oath of one of then. Learned Counsel for the appellants has argued that by the application of 19th November 1928, the only question that was referred to the oath of the respondent was the question as to whether the appellants were the heirs of Mt. Taslima Bibi. This, he contended, was the only question in which at the time they were interested, as once their relationship to Mt. Taslima Bibi was established, mutation in their favour was bound to follow. I am unable to agree with this contention. I am of opinion that the terms of the reference to the oath of the respondent are perfectly clear and leave no room for doubt. In my view the question which was referred to the oath of the respondent was not the question as to the relationship between Mt. Taslima Bibi and the appellants, but the question' as to whether in fact the property belonged to the respondent. It appears to me to be clear that the parties decided that it was batter at that early stage to have the question as to who was entitled to succeed to the property in Schedule A determined once and for all, hence the clause in the reference by which the appellants bound themselves to seek "no other remedy" or "no remedy in any other place" whichever is the correct translation of the actual words used. There was no reason why they should not enter into such an agreement; in fact there was every reason why they should. A decision thus expeditiously obtained, would, as the learned Sub-Judge has observed in the course of his judgment, obviate a protracted and ruinous litigation-between the parties.
20. Learned Counsel for the appellants has strenuously contended that the terms of reference are not clear in the sense that I have indicated above and that it is permissible to look into the surrounding circumstances for the purpose of discovering what really was the agreement between the parties. He has maintained that the fact that reference was made in the course of mutation proceedings in the revenue Court and that in the terms of the reference the phrase "we are not haqdars under the Mahomedan law" shows that the intention of the parties was-merely to refer the question of relationship of Mt. Taslima Bibi to the oath of the respondent. I cannot agree with this contention. Assuming that there is some doubt as to the meaning of the application of 19th November 1928, how far can the intention of the parties be dete/mined by a consideration of the surrounding circumstances? I have already indicated that the fact that the reference to oath was made in mutation proceedings does not carry the appellants far. It is most reasonable that they should wish to have the whole question of their right and title to the land in question settled finally in the first proceedings after the death of Mt. Taslima Bibi. There was nothing incompetent in such a course. It appears to me that the fact that the reference took place in mutation proceedings is no sufficient reason for holding that merely the question of relationship could have been in the contemplation of the parties. The true owner of the property in dispute would ultimately get possession and have mutation of names effected in his favour whether the appellants were the heirs of Mt. Taslima Bibi or not.
21. The following considerations apart from the actual terms of the application convince me that the intention of the parties was that the question of title should be decided by reference to the oath of the respondent and not merely the question of relationship of the appellants to Mt. Taslima Bibi: (1) The question as to whe-or not the appellants were the heirs of Mt. Taslima Bibi is not one which they would be likely to refer to the respondent's oath. They no doubt could have established their relationship as heirs, if in fact they were heirs, in the mutation proceedings by adducing relevant oral and documentary evidence. (2) The respondent could not legitimately resist the right of the heirs of Mt. Taslima Bibi to possession of half the property except on the ground that the property was in fact his. The inference in these circumstances, that this must have been the respondent's case in the revenue Court, is irresistible. What interest could he have to deny the appellants' relationship? He could not succeed as heir. He could succeed in defeating the appellants' claim for mutation only if he were in fact owner. Why then should he agree to testify on the Quran on the question of the appellant's relationship to Mt. Taslima Bibi a matter on which, as his statement on oath shows, he had no knowledge? (3) Whilst the question of relationship of the appellants to Mt. Taslima Bibi is not one which they would readily refer to the oath of the respondent the question as to whether the property in dispute was held benami is obviously just the type of question that they would. (4) It is highly improbable that the intention of the respondent was to confine the reference to the question as to whether the appellants were the heirs of Mt. Taslima Bibi or not. As the statement on oath demonstrates, he knew at the time of reference that he was unable to deny affirmatively that the appellants were the heirs of Mt. Taslima Bibi; he in fact says on oath that he does not know if they are the heirs or not. Now if the appellant's argument is sound it must be assumed that the respondent was willing to throw away his whole case in agreeing to take the oath because on the appellants' interpretation of the reference they would succeed if the respondent did not deny their right as heirs. The respondent was not prepared to deny that the appellants were the heirs and m these circumstances it is difficult to believe that he would agree to take an oath which must necessarily, because he could not give the denial, have the result of defeating his own Claim. (5) If it were the intention of the parties to refer to the oath of the respondent merely the question as to whether the appellants were the heirs of Mt. Taslima Bibi, it is difficult to understand why the reference did not say so in plain and simple terms. The fact that plain and simple terms were not used, but that terms of obviously wider import were introduced, is, in my opinion, practically conclusive against the appellants' contention.
22. Much was made by learned Counsel for the appellants of the reference in the application to Mahomedan law. I do not attach much importance to this part of the application. It is clear that the question referred to the oath of the respondent was one of fact and not of law. Questions of law are not usually referred to the oath of a litigant. I am of the opinion that the phrase in question is some what loosely used and was not intended by the parties to have any special significance. The appellants' contention would have the effect of introducing into the terms of the application a restriction limiting the plain terms of the reference; in fact of importing into the contract between the parties a term which on the face of it is not there and which is difficult to reconcile with the intention of the parties so far as that intention can be gathered by a consideration of the application itself and of the surrounding circumstances. The terms of the contract are very wide and should not be restricted by the Court unless it be plain that such restriction was clearly intended. In the result I am of the opinion, that the appellants are estopped from claiming possession of the property in dispute in the Civil Courts. In the present suit they are clearly seeking "another remedy" or a "remedy in another place," a course which they bound themselves not to pursue when the dispute in the revenue Court was referred to the oath of the respondent. Success in the present suit would secure to them what they failed to get in the mutation proceedings.
23. So far as the objection that the application of 19th November 1928 is not binding on the appellant, Mobin Khan, is concerned, I am of opinion that there is little weight in this contention. It is true that Mobin Khan did not sign the application, but his brother, the other appellant, was his mukhtaram. The latter appointed a vakil for himself and as mukhtaram of Mobin Khan. The two brothers have been closely associated throughout the whole of the litigation consequent upon the dispute as to who is entitled to the possession of the property left by Mt. Taslima Bibi, and in the circumstances it is impossible to hold that Mobin Khan did not approve of the decision to refer the dispute to the oath of the respondent. It is true that he gave no written authority for such a reference, but the fact of his authority, in my opinion, can be gathered from the facts and circumstances of the proceedings in the revenue Court. There can be no doubt that Mobin Khan was well aware of the steps taken in these proceedings by his brother and that those steps had his approval. To a determination of this point equitable considerations should be applied and it would be highly inequitable to allow Mobin Khan to ride off on the technical plea that he himself had not signed the application when in fact it is abundantly dear that his brother was acting for both in the dispute and had Mobin Khan's approval for each step taken in the proceedings. I am of opinion that this appeal ought to be dismissed with costs.
Mukerji, J.
24. This case has been sent to me by the order of the learned Chief Justice because of a difference of opinion between himself and Thorn, J., who heard the appeal. Sir Tej Bahadur Sapru on behalf of the defendant-respondent has taken a preliminary objection, namely, the reference is irregular and is not warranted by the language of Section 98, Civil P.C. Sir Tej Bahadur's argument is twofold. One is that the referring order does not contain the point or points on which the learned Judges have differed and, secondly, that it is only a point of law that can be referred to a third Judge under Section 98, Civil P.C. It appears that there is some conflict of opinion as to whether Section 98, Civil P.C. or Clause 27, Letters Patent of this High Court (or the corresponding clause in the Letters Patent of any other High Court) applies when there is a difference of opinion among the Judges hearing an appeal. In Fazl-ul-Bahman v. Abdullah A.I.R. 1932 All. 195, two learned Judges of this Court, namely, Boys and Sen, JJ., appear to have held that Section 98, Civil P.C., is applicable and that Clause 27, Letters Patent, Allahabad, is applicable only when there is an appeal under the Letters Patent of the Court. A Full Bench of the Madras High Court in Dhanaraju v. Balakissendas Moti Lal A.I.R. 1929 Mad. 641, took a different view. A Full Bench of this Court, in Ahbari Begam v. Bahmat Husain A.I.R. 1933 All. 861, accepted the view that Clause 27 Letters Patent, was applicable.
25. It appears to me that the point referred to me is really one of law, and therefore, even if Section 98, Civil P.C., be applicable, the reference is quite regular. The next objection of Sir Tej Bahadur is that the Bench making the reference has not formulated the point of law on which there is a difference of opinion. This is no doubt technically correct, but on reading the judgments of the learned Judges composing the Bench it is clear to me that there is only one point to be decided, namely whether the appellants are estopped from maintaining the suit. This is the point on which the learned Subordinate Judge dismissed their claim with respect to the property in Schedule A of the plaint, and it was this point that was before this Court. The other matters connected with this point are only matters of evidence and argument and cannot be treated as forming differet issues for determination. The objection therefore fails. The facts of this case are stated in the judgments of the learned Judges, but in order that my own opinion may be appreciated I have just to mention a few facts leading to the suit.
26. It appears that one Mt. Taslima Bibi, wife of the defendant-respondent, Haji Muhammad AH, died. Her name was recorded in respect of several items of zamindari property including the two items mentioned in list A appended to the plaint. The appellants claimed to be sons of two paternal cousins of Mt. Taslima Bibi, and in that right they said that they were entitled, as "residuaries," to a half share in Mt. Taslima Bibi's property, the other half going to her surviving husband, Haji Muhammad Ali. Disputes arose, as all disputes relating to succession to zamindari property arise, in the mutation department. It appears that the appellants were unsuccessful in the Court of the assistant Collector, First Class with respect to properties in list A, and they filed two appeals to the Collector. "While one of the appeals before the Collector was pending, an application was made on behalf of the appellants which will be found printed at p. 69 of the record. I shall have to examine the language of the application in detail later on. That application constituted an offer on the part of the appellants to be bound by the statement of Muhammad Ali if it were made in a certain way. Muhammad Ali made a statement (see p. 75). Purporting to act on that statement, the Collector dismissed the appeal before him. Then the present suit was filed by the plaintiffs.
27. It was pleaded on behalf of Muhammad Ali that the proceedings before the Collector operated as an estoppel against the appellants, and they were not entitled to maintain the suit in respect of properties mentioned in list A. As regards the properties in list B, the plaintiffs' right to share in it was admitted (at a late stage) by Muhammad Ali, and I am not concerned with those propertiRs. The application at p. 69 is signed by the appellant 1, Muhammad Abbas Khan, and by Babu Bishnath Prasad, a Mukhtar for the appellant 2, Mobin Khan. It was the opinion of one of the learned Judges that there was no estoppel and that even if Abbas Khan was estopped from, maintaining the suit, Mobin Khan was not. The other learned Judge was of opinion, that both were estopped. This is only one aspect of the question of estoppel, and I reserve the consideration of this point to a later stage. The application at p. 69 runs as follows:
In the above case it is submitted that if Muhammad Ali respondent swears by the Holy Book that according to Mahomedan law the appellants have no right, a judgment may be given against the appellants, who shall not seek remedy at any other place.
28. The question is what was the offer made by means of this application by the appellants and whether that offer was accepted by Muhammad Ali. The argument for Muhammad Ali is that the offer was to the effect that if Muhammad Ali made a certain statement, the appellants undertook not to seek any remedy at "any other place" and that therefore they undertook not to file the present suit in order to seek a remedy. On behalf of the appellants the argument is that they never undertook to forgo seeking of remedy in the Civil Court and that all that they were concerned with was the decision of the dispute in the revenue Courts, namely, the Courts of the Collector, the Commissioner and the Board of Revenue. Further, the argument on appellants' behalf is that Muhammad Ali never accepted the offer in its entirety, and therefore he is not entitled to plead estoppel. As one of the learned Judges has remarked in his judgment, the evidence on the record in support of the plea of estoppel is very meagre. There is not on the record any copy of the pleading before the revenue Court. We have not got a copy of the order passed, by the Assistant; Collector in the mutation department. We are left to guess from his application at p. 69 and the statement of Muhammad Ali at 75, what was the nature of the dispute between the parties and to guess what was the exact import of the offer. The party, who sets up a plea, must substantiate it, especially where the plea is one of estoppel and that plea seeks to disqualify the plaintiffs from seeking their remedy in a Court of Justice, the plea must be substantiated clearly.
29. I have already read the contents of the application. It appears to me, from the language of the application, from the fact that the dispute was in the mutation-department, and from the fact that Muhammad Ali deposed before the Collector that he did not know bow the plaintiffs were related to the deceased lady,. that the appellants were anxious to establish their relationship with the lady. For they knew that if their alleged relationship with the deceased was established (see p. 1 of the printed record which gives the pedigree), their right to claim a half share in any property that might belong to Mt. Taslima Bibi could not be resisted. I also infer from the statement of Muhammad Ali (p. 75) recorded by the Collector that he was maintaining that the properties in list A were not the properties of his deceased wife, although they stood recorded in their name. With these facts gathered from the very meagre materials provided before me, I proceed to consider the language of the application of 13th November 1928, (p. 69). Put in a different language, the application said that if Muhammad Ali swore by the Koran that the appellants were no heirs of Mt. Tasliina Bibi in accordance with the rules for inheritance laid down in the Mahomedan law, a judgment might be given against the appellants, and they would not "seek remedy at any other place." This application demanded one matter and only one, namely a statement by Muhammad Ali as to whether the appellants were rightful heirs or not under the Mahomedan law. By the application the appellants undertook that in case a statement was made a certain consequence should follow, namely judgment would be given against the appellants and they would not seek remedy at any other place. Looking at the statement of Muhammad Ali at p. 75, I do not find that Muhammad Ali made any statement as to whether or not the appellants were lawful heirs to Mt. Taslima Bibi.
30. On this point Muhammad Ali simply stated that he did not know how the two appellants were related to him or to his wife. On the other hand, he proceeded to assert that the property in dispute was his and not his wife's. This last statement was entirely irrelevant for the purposes of mutation. No mutation Court could order mutation in favour of the husband alone on the ground that the deceased was only a benamidar for the husband. The mutation Court had to record the deceased as the sole owner of the property and it could record the names of the heirs alone. It was open to the revenue Court to record in preference to other heirs, the name of the person who was in possession of the property, on the basis of possession alone, provided that he was one of the heirs; (Section 34 and Section 40, Land Revenue Act). But Muhammad Ali did not assert his possession as one of the heirs, and, evidently he was not relying on it. The question of possession of a person who was not an heir would be as much irrelevant as the question of Muhammad Ali's own title, in view of the offer made by the appellants. The appellants did not ask Muhammad Ali to state whether Mt. Taslima Bibi was the owner of the property or not. They asked Muhammad Ali to state whether or not the appellants were lawful heirs of Mt. Taslima Bibi under the Mahomedan law. In this view no question of the alleged benami character of the holding by Mt. Taslima Bibi arose for a statement by Muhammad Ali. It seems clear to me that Muhammad Ali never accepted the offer inasmuch as he never made a statement as to whether the plaintiffs were heirs or not of Mt. Taslima Bibi under the Mahomedan law.
31. It was argued that the undertaking on the part of the appellants that they would not seek remedy "at any other place" implied that they offered to forgo their right to seek remedy in the Civil Court, if Muhammad Ali's statement went against them. This, in my opinion, is not a correct argument. No question of title of Muhammad Ali could arise in the mutation proceedings, if they were properly conducted. Assuming that Muhammad Ali did raise the plea of his title in the mutation department (as to which we have no evidence), that was a question which was not within the purview of the mutation Court's decision. Then it is difficult to see why the appellants at all care to forgo their right of a civil suit if the mutation order went against them. A civil suit after the revenue litigation is bound to follow in cases of all disputes as to landed property and is expressly saved by Section 40, Land Revenue Act. In my opinion all that the appellants undertook to do when they said that they would not seek remedy at any other place, they meant that they would not go by way of appeal and revision before the Court of the Commissioner and the Board of Revenue.
32. As I have remarked above, to establish a case of estoppel, the evidence must be very satisfactory. At best, the words "shall not seek remedy at any other place" are ambiguous and are capable of being construed as being confined to higher mutation Courts. If Muhammad Ali wanted, as the consideration of making a. statement, that the appellants should forgo their right to seek remedy in the Civil Court, he should have asked them to make a clear statement on the point. As I have said, Muhammad Ali did not fulfil his part of the contract by stating whether the plaintiffs were or not among the lawful heirs of Mt. Taslima Bibi. In this view, in my opinion, Muhammad Ali is entirely precluded from pleading successfully an "estoppel" against the appellants.
33. In view of this finding, it is not necessary for me to consider whether the case of Mobin Khan stands higher then the case of Abbas Khan. I may however consider this aspect of the case also. I am of opinion, that even if Abbas Khan were precluded, materials are not enough to show that Mobin Khan is also precluded.
34. Mobin Khan was represented by a Mukhtar appointed on Mobin Khan's behalf by Abbas Khan. The Mukhtarnama is at p. 67. It gives the Mukhtar authority to look after and conduct the mutation case in the Court of appeal. The Mukhtar could bind Mobin Khan only so far as the mutation case was concerned, by virtue of this vakalatnama. He had no authority therefore to give an undertaking on behalf of Mobin Khan that Mobin Khan would not file a civil suit if he lost the mutation case. Any undertaking of that sort would be ultra vires of the Mukhtar: see Nundo Lal Bose v. Nistarini Dasai (1900) 27 Cal. 428. Again, we have not got before us the power of attorney executed by Mobin Khan in favour of Abbas Khan by virtue of which Mobin Khan appointed Abbas Khan his general agent. It is argued that Abbas Khan did not produce it. But whether he produced it or not, it was for Muhammad Ali to establish that Abbas Khan had been given authority by Mobin Khan to bind him under all circumstancRs. I have already pointed out that even if Abbas Khan had authority to bind Mobin Khan for all purposes, the authority which Abbas Khan gave to the Mukhtar did not give the Mukhtar any authority to give an undertaking that Mobin Khan would not bring a civil suit. It was the Mukhtar who filod the petition on behalf of Mobin Khan and verified it before the Collector: see p. 71. For these reasons, I am of opinion that in any circumstances, Mobin Khan's case was stronger then that of Abbas Kban and the plea of estoppel cannot be successfully urged against him.
35. To conclude, my opinion, is that the appellants are not estopped from maintaining the suit, and the learned Subordinate Judge was wrong in dismissing the appellants' suit as regards property in Schedule A, on the ground of estoppel. The case should go back to the Court of first instance for decision on the merits. As regards the property A, I would also allow the appellants costs of this appeal.