JUDGMENT

Iqbal Ahmad, C. J.

1. I agree with my brothers Allsop, Ismail and Dar that the mortgage made by Balkaran Singh in 1927 was valid and that both the appeals must fail. That there is considerable and almost alarming conflict of judicial opinion on the questions of law that arise for decision in the present appeals admits of no doubt and, accordingly, the principle of stare decisis cannot be invoked in the decision of these appeals. The relevant case law has been noticed in detail in his judgment by my brother Dar and I, therefore, refrain from entering into a discussion of those cases. It is, however, manifest that the divergence of judicial opinion in this province on the questions involved has led to considerable confusion, and it is about time that the Legislature should step in and prevent that confusion from becoming worse confounded. My reasons for arriving at the conclusion indicated above are briefly as follows :

The right of transfer is a fundamental incident attaching to every description of proprietary right unless such right is barred by any express or implied provision of law. The Transfer of Property Act (4 of 1882) codifies the law of transfer applicable to British India and in that Act there is no provision debarring a co-owner from transferring his interest in joint property. It follows that one of several co-owners has a right to transfer his interest in joint property. Such transfer by a co-owner, however, cannot adversely affect, in any respect, the rights of other, co-owners. Nevertheless, the transferee from the co-owner will be entitled to step in the shoes of his transferor and to claim the enjoyment of the right that belonged to his transferor prior to the date of the transfer. It is, therefore, clear to my mind, that a joint sir-holder is fully competent to transfer his proprietary interest in a joint sir plot. The transferee in such a case will acquire proprietary interest of the transferor in that plot. Sir right is, however, not transferable except to the extent indicated by Section 6, Tenancy Act (3 of 1926). In case of transfer of a sir plot the transferor becomes, by operation of law, entitled to exproprietary rights. To put the matter in another way. The component parts of sir rights are : (1) proprietary rights, and (2) cultivatory rights. The law permits the transfer of proprietary but, speaking generally, forbids the transfer of cultivatory rights and, therefore, on the transfer of a sir plot, the transferee acquires the proprietary rights of the transferor but not his cultivatory rights. The cultivatory rights remain in the transferor and it is this right which, after the transfer, the law secures to the transferor in the shape of exproprietary rights.

2. The propositions set out above lead to the irresistible conclusion that in the event of a transfer by one of several joint sir-holders of his interest in a joint sir plot, the transferee acquires the proprietary interest of his transferor in the plot and the transferor, by operation of law, becomes entitled to claim exproprietary rights. If he does claim ex. proprietary rights the law (Section 36, Land Revenue Act) provides the method by which the area in which he has acquired such rights are to be demarcated. It is however, open to a person to forgo his rights and, therefore, if the transferor does not claim exproprietary rights those rights are extinguished. In such a case the question arises whether the remaining sir-holders do or do not acquire sir right over the whole plot. The Board of Revenue has held that they do and, after giving my best consideration to the question, I am in entire agreement with the Board on this point.

3. In the appeals before us, it is common ground that, by virtue of an arrangement between the various joint sir-holders, the joint sir khata was partitioned and plot No. 822/1 was allotted solely to Balkaran Singh, and he entered into, and remained in, exclusive possession of that plot, and was in such possessi