SARDAR MUHAMHIAD IQBAL, J.---Sitara Khan, one of the res--pondents, is the brother's son of Sarfraz the original mortgagor. On the death of Sarfraz, his two daughters, namely, Mst. Khaista Khanam and Mst. Maro Jan made a gift of the equity of redemption in favour of Firdaus Khan, appellant.
2. The appellant filed a suit for the redemption of the land in dispute which was decreed with costs by the learned Civil Judge on payment of Rs. 1,198.00. In appeal filed by the mortgages, it was held by the learned Additional District Judge that the mortgages were entitled to a sum of Rs. 700.00 on the basis of an unregistered mortgage deed which had been given effect to in Mutation No. 5353 sanctioned on the 9th March 1926. He further held that the mortgages were not entitled to a sum of Rs. 198.00 which was based on two mortgage deeds of Rs. 99.00 each. He accordingly directed the redemption of the suit land on payment of Rs. 1,700.00. This is the second appeal.
3. We may first dispose of an objection raised by Sitara Khan, respondent. He claimed that he was the sole heir of Sarfraz to the exclusion of his daughters named above. The learned Additional District Judge held that under the Muslim Law Sitara Khan succeeded to 1/3rd of the estate of Sarfraz and, therefore, his two daughters could make a gift to the extent of their share, which represented 2/3rd of the entire estate. He decreed the suit of Firdaus Khan on the ground that a co- --mortgagor could maintain a suit for the redemption of the whole estate. It has not been shown to us that Sitara Khan, respondent, could validly claim the whole estate of Sarfraz Khan when he was survived also by two daughters who, under the Muslim Law, were entitled to succeed to 2/3rd of his estate. The view taken by the learned Additional District Judge that the appellant could sue for redemption is unexceptionable, because a suit to redeem a mortgage partially not maintainable. A suit on a mortgage bond has to be for the whole of the amount of the mortgage in A order to avoid multiplicity of suits because neither the mortgage money nor the security can be split up without the consent of the parties or permission of the Court. By following the decision in Subinitial Debi v.
Dhara Sundari Debi (AIR 1919 P C 24) it was so held in Radha Nath v. Nagendra Nath (AIR 1931 Cal.
806).
4. On behalf of Firdaus Khan, appellant, it was contended that the learned Additional District Judge has erred in awarding a sum of Rs. 700 on the basis of an unregistered deed and the mutation, which was sanctioned, in pursuance of the same. The mortgage-respondents or the other hand took exception to the judgment of the learned Additional District Judge in so far as he disallowed their claim for Rs. 198 which was based on two mortgage deeds dated the 4th August 1921 and the 21st April 1922 for Rs. 99.00 each, and particularly when the appellant had neither filed any appeal nor had he challenged the decree of the trial Court on this point in cress- objections.
5. The mortgage of Rs. 700.00 was created by a deed Under section 17 of the Registration Act a document if it purports or operates to create, declare, assign, limit or extinguish a right, title or interest to or in immovable property, requires registration. If it is not registered, it fails completely in its effect, and the right, title or interest is consequently not created, declared, assigned, limited or extinguished. It is provided in section 49 of the Act that such a document unless it is registered does not affect any immovable property comprised therein and also cannot be received as evidence of any transaction affected such Skinner (AIR 1929 P C 269) the Judicial Committee which comes within section 17 as purporting to create by transfer an interest in immovable property is not registered, it cannot be used in any legal proceedings to bring about indirectly the effect which it would have had if registered. It was further remarked that such an instrument is not to affect the property and cannot be received as evidence of any transaction affecting the property. The mortgage deed for Rs. 700.00 thus did not create any rioht or title in favour of the mortgages and could not be received it evidence to prove the transaction of mortgage. The learned Additional District Judge has, however, given effect to the mutation which was sanctioned in respect of this transaction. We have perused the mutation. It was sanctioned on the basis of the mortgage deed.
The mutation and for the matter of that the subsequent entries in the record-of-rights do not create any title in favour of any person. These documents are not the deeds of title. The validity or otherwise of a transaction depends not on l the mutation or entries in the record-of-rights but on the fact whether there was a valid transaction in existence which was given) effect to in the revenue papers. In Nirman Singh v. Rudra Partap Narain Singh (AIR 1926 P C 100) it was held by the Judicial Committee that mutation proceedings are not judicial proceedings in which title to and proprietary rights in immovable property are determined but that "they are much morel of the nature of fiscal enquiries instituted in the interest of the State for the purposes 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 was relied on in Ram Sarup R.I v. Charitter R.I (AIR 1927 All. 338) and the same view was expressed in Mst. Rasulan Bibi v. Nand Lal (AIR 1930 All. 521). It was held in Mahadeo Singh v. Jagmohan Singh (AIR 1914 Oudh 235); Mst. Jagrani v. Bisheshar Dube (AIR 1916 All. 1) and Baldeo Singh v. Udal Singh (AIR 1921 All. 218) that the mutation of names sanctioned by the Revenue authorities does not confer a title and an order passed in mutation proceedings on the basis of an unregistered deed cannot validate the transaction covered by that deed so as to make it admissible in evidence without registration. Thus a transaction which is the subject-matter of a document which requires registration under section 17 of the Registration Act and had not been so registered even if given effect to in mutation proceedings remains invalid. Since the mortgage deed was not registered, it did not, in view of the provisions of section 4), create any interest or right in favour of the mortgage.
The mutation which was based on the unregistered mortgage deed and the sui sequent entries in the record-of-rights would equally be invalid. If the foundation is without any legal basis, the superstructure of rights and obligations built upon that must fall to the ground because such a superstructure of rights and obligations has as little legal force as the void foundation upon which they are based. The learned Additional District Judge was, therefore, not justified to award a decree in the sum of Rs. 700.00.
6. The learned Additional District Judge did not give effect to the mortgage deeds dated the 4th August 1921 and the 21st April 1922, each for Rs. 99.00 on the ground that they had not been proved.
The mortgage deeds have been exhibited as Exhs. D/4 and D. A/2. The plaintiff, if he had any objection to the mode of proof, should have raised the objection at the time of hearing and before the Court exhibited them. The learned Additional District Judge should not have given effect to the objection in the appeal. It was held in Gopal Das v. Sri Thakurji (AIR 1943 P C 83) that where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. It was further observed that a party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof. A similar view was taken in Abdullah v. Abdul Karim (PLD 1968 SC 140) and it was observed that the "Code of Civil Procedure provides for the admission of documents and it is now w6ll settled that if objection to the formal proof of a document has not been taken at . . . .The earliest point of time it cannot be taken subsequently and certainly not in appeal".
7. The learned counsel for the appellant contends that the respondents since they had neither filed an appeal nor filed cross-- objections have no locus standi to object to that part of the decree.
There is a similar objection put forth by the respondents. It is contended on their behalf that the decree of the learned Additional District Judge disallowing the amount was without jurisdiction because the appellant bad failed to object to the same either by an appeal or cross-objections before that Court and that the Court could not suo motu set aside the decree.
The appellate Court has got the jurisdiction to adjudicate upon a matter only if there is either an appeal pending or cross --objections filed by the respondents. The Court could not suo muto interfere with the judgment of the trial Judge which was t subject to its appellate jurisdiction. Any order so passed is without jurisdiction and hence a nullity. The objection on this ground can be taken at any time and in any proceedings. Any order which is without jurisdiction and void can just be ignored In Muhammad Swaleh v. United Grain and Fodder Agencies(PLD 1964 SC 97) it was held : "It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of a 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity. The Civil Judge will be bound to go into this question because under section 44 of the Evidence Act the parties are entitled to show that a judgment or decree was passed without jurisdiction".
8. The result is that the appeal is accepted; the judgment and decree of the learned Additional District Judge set aside; and a preliminary decree for redemption in favour of the plaintiff -- appellant against the respondents is passed on his paying the sum of Rs. 1,198.00 within six months from today, failing which the defendants will be entitled to apply for the final decree. We make no order as to costs.
S. Q,