K. P. Singh, J. - (1.)THIS writ petition under Article 226 of the Constitution is against the judgment of the Deputy Director of Consolidation, Allahabad dated 16-8-1975 whereby the revision petition filed by the contesting opposite parties Nos. 2 to 4 namely Sheo Bhajan, Sri Kishan and Ram Prasad was allowed. Brief facts giving rise to the present writ petition are that plot Nos. 53 586 an I 587 of Khata No. 99 were recorded in the names of the petitioners Hira Lal and Hub Lal in the basic year. An objection was filed by Sheo Bhajan and Sri Kishan with the allegations that their father Kalika was tenure-bolder of the disputed plots. On the death of their father Kalika, their mother Smt. Jagia married Sheo Pal. It has been alleged that the petitioners got a fictitious mortgage-deed from their mother after her re-marriage, though the objectors Sheo Bhajan and Sri Kishan continued in possession over the disputed plots. It appears that on 1-5-1967 the objectors had sold plot No. 586 to Ram Prasad. Thereafter the objectors along with Ram Prasad had filed a suit for cancellation hence the objectors Sheo Bhajan and Sri Kishan had prayed for the entry of their names over plot Nos. 58 and 587 and Ram Prasad had prayed for the entry of his name over plot No. 586. The petitioners had contested the claim of the objector with the allegations that Mst. Jagia had executed an usufructuary mortgage-deed in their favour on 23-3-1959 and they had got bhumidhari right in the disputed plots on the basis of the aforesaid mortgage-deed and that at any rate they had acquired sirdari right under Section 210 of the U. P. Z. A. and L. R. Act and they had asserted that Mst. Jagia had not remarried. It appears that the Consolidation Officer had decided the claims of the parties through his judgment dated 27-4-1976, but the case was remanded by the appellate authority through its judgment dated 31- 8-1974 and thereafter the Consolidation Officer rejected the objections filed by the contesting opposite parties in the present writ petition through his judgment dated 22-4-1975. Aggrieved by the judgment of the Consolidation Officer two appeals were preferred which were dismissed by the appellate authority and the judgment of the Consolidation Officer was confirmed. Against the judgment of the appellate authority the objector preferred a revision petition which was allowed by the Deputy Director of Consolidation through his impugned judgment dated 16-8-1975. The claims of the contesting opposite parties Sheo Bhajan and Kishan were recognised with regard to plot Nos. 58 and 587 whereas the claim of Ram Prasad was recognised with regard to plot No. 586. The petitioners have approached this Court and the learned counsel for the petitioners has contended before me that the Deputy Director of Consolida tion has patently erred in holding that the provisions of Section 164 of the U. P. Z. A. and L. R. Act are not attracted to the claim of the petitioners, Secondly he has contended that the rulings mentioned in the impugned judg ment Dev Natidan v. Amardeo Singh 1971 R. D. 270 and Laxim Shankar v. Sundar 1971 R. D. 415 were inapplicable to the facts of the present case, Thirdly he has contended that the Deputy Director of Consolidation has misappreciated the provisions of Section 164 of the U. P. Z. A. and L. R. Act and he is under wrong notion that if the disputed plots had been transferred by way of security and also in Lieu of interest the transfer would not be covered by the provisions of Section 164 of the U. P. Z. A. and L. R. Act. According to the learned counsel for the petitioners the consolidation authorities had no jurisdiction to cancel the mortgage-deed in favour of the present petitioners which would be in the circumstances of the present case a sale in their favour hence he has contended that the impugned judgment should be quashed. The learned counsel for the contesting opposite parties has submitted in reply; that in the circumstances of the present case the disputed plots were not mortgaged to the petitioners as the terms of the morgage-deed indicate that Mst. Jagia had transferred her property to the petitioners and as the disputed property did not belong to her the mortgage-deed in favour of the petitioners relied upon by them was a void document and no title passed through the aforesaid deed to the petitioners, and the writ petition deserves to be dismissed on the aforesaid ground alone. Secondly he has submitted that the mortgage-deed in favour of the petitioners was executed by their mother Smt. Jagia after her remarriage hence the mortgage-deed was void and did not confer any valid title upon the petitioners and their claim was rightly negatived by the Deputy Director of Consolidation. In this connection he has placed reliance upon the rulings reported in Mond. Sohraj Khan v. D. D. C. and others, 1970 A W. R. 78. Murari Lal and others v. D. D. C. and otters, 1978 A. W. C. 14 and Sheopal and others v. Smt. Lekhpatta 1979 A. W. C. 524. I have examined the contentions raised on behalf of the parties. It is not disputed before me that the suit filed by the contesting opposite parties for cancellation of the mortgage-died in favour of the petitioners stood ultimately abated by the Civil Court. In this view of the matter the contention of the learned counsel for the petitioners that the consolidation authorities cannot look into the validity of the deed in favour of the petitioners, hence the Deputy Director of Consolidation has patently erred in negativing the claim of the petitioners is not acceptable to me. Once the suit filed by the contesting opposite parties stood abated, that judgment would operate as res judicata between the parties and the plea raised on behalf of the petitioners in this writ petition to the effect that the consolidation authorities would not look into the validity of the mortgage-deed (Sale deed) in favour of the petitioner is not open to them. In this connection it is sufficient to mention the ruling Dalip Singh v. Deputy Director of Consolidation and others 1976 (2) A. L. R. 112. Wherein a Division Bench of this Court has observed as below; "It has been seen that the suit filed by the respondents covered both the sale-deeds. The suit was for cancellation. It has been abated under Section 5 of the Consolidation of Holdings Act. Section 5 aforesaid applies when a Court finds that in view of Section 49 of the Act, a regular suit is not maintainable because the points for adjudication can be adjudicated upon by the consolidation authorities. The necessary effect of this order of abatement was that subject-matter of the suit namely, the validity of the two sale-deeds, could be adjudicated upon by the consolidation authorities. It is well settled that a decree or order which has become final, operates as res judicata, even though it may proceed upon an erroneous decision of a question of law. In view of the doctrine of res judicata none of the parties could object to the consolida tion authorities going into the validity of the sale-deeds". From the above quotation it is evident that when the suit filed by the contesting opposite parties stood abated, it is not open to the petitioners to contend that the consolidation authorities could nut go into the validity of the mortgage-deed in favour of the petitioners. The contention of the learned counsel for the petitioners in this regard fails. As regards the contention of the learned counsel for the petitioners that the rulings referred to in the impugned judgment and reported in 1971 R. D. are inapplicable to the facts of the case, I think the contentions are correct. The facts mentioned in the ruling referred to in the impugned judgment reported in 1971 R. D are quite dissimilar to the facts involved in the present writ petition. A registered usufructuary mortgage-deed in favour of the present petitioners has been executed. The transfer of possession over the disputed plots to the petitioners is not in lieu of interest on the basis of advancement of money through promotes or in lieu of the interest without a registered document in security of money more than Rs. 100/- advanced, hence 1 think that the ruling reported in 1971 R. D. and referred to in the impugned judgment are inapplicable to the facts of the present case. Section 58 (d) of the Transfer of Property Act defines "usufructuary mortgage" as below; "Where the mortgagor delivers possession (or expressly or by implica tion binds himself to deliver possession) of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage-money and to receive the rents of and profits accruing from the property (or any part of such rents and profits and to appro priate the same) in lieu of interest or in payment of the mortgage money, or partly in lisu of interest (or) partly in payment of the mortgage-money the transaction is called an usufractuary mortgage and the mortgage an usufructuary mortgagee." Tho perusal of Annexure T attached to the writ petition relied upon the petitioners satisfies the essential ingredients of usufructuary mortgage defined in Section 58 (d) of the Transfer of Property Act. In Lal Chand v. Deputy Director of Consolidation U. P. Lucknow camp Kanpur, 1969 R.D. 26 at page 28 in paragraph 5 it has been observed as below:- "Section 164 applies to transactions of the nature of mortgage or hypothecation where possession of property is delivered in order to secure payment of any money or loan or the incurrence of any liability." I think that the mortgage-deed relied upon by the petitioner would be deemed as a sale and the Deputy Director of Consolidation has patently err d in not recognizing the claim of the petitioners based on the aforesaid mortgage deed (Annexure T attached to the writ petition). The main submission of the learned counsel for the contesting opposite parties before me was that the mortgage-deed relied upon by the petitioner was not in respect of the property of the minor rather it was in respect of the property of Mst. Jagia, mother of the minors whose property has been claimed by the present petitioners. Secondly he has submitted that Mst. Jagia had no right and title to transfer the property to the petitioners without having obtained previous permission of that Court, -hence the mortgage-deed relied upon by the petitioners was void and it did not confer any title upon the petitioners and the petitioners are in such circumstances not entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution. To support his contention the learned counsel for the contesting opposite parties has relied upon the ruling reported in Sheopal and others v. Smt. Lekhpatta (Supra). In the present case the character of the document relied upon by the petitioners is not question, hence the aforesaid ruling is inapplicable to the facts of the present case. Rathher the execution of the document by Mst. Jagia is admitted and the contention has been raised that she transferred her property and not the property of the minors. The transfer of the property is admitted. The question raised is whether Mst. Jagia had transferred her own property or the property of the minors. The other case relied upon by the learned counsel for the contestant opposite parties is reported in Murari Lal and other v. Deputy Director of Consolidation and others, 1978 A. W. C. 13 and he has submitted that the mortgage-deed executed by the guardian Smt. Jagia on behalf of opposite parties Nos. 2 and 3 Sheo Bhajan and Sri Kishan was void as she had no right to transfer in view of the provisions of Section 11 of the Hindu Minority and Guardianship Act. He has also placed reliance upon the ruling reported in Mohd. Sohrab Khan and others v. Deputy Director of Consolidation, Ghazipur and others, 1970 A. W. R. 78 for his contention that the mortgage-deed relied upon by the petitioners is void and it does not confer any title upon the petitioners. In this connection it would be proper to mention the provisions of Section 8 sub-clause (3) of Hindu Minority and Guardianship Act which reads as below;- "Any disposal of immovable property by a natural guardian in contra vention of sub-section (1) of sub- section (2) is voidable at the instance of the minor or any person claiming under him." In the present case the Consolidation Officer and the Settlement Officer (Consolidation) negatived the claim of the contesting opposite parties on the ground that the mortgage-deed in favour of the petitioners had not been cancelled by the competent Court, hence the objections of the opposite parties could not be accepted. They appeared to be of the opinion that the consolida tion authorities could not examine the validity of the mortgage-deed in favour of the petitioners in view 01 the Supreme Court were reported in 1973 R. D. page 423 whereas the revisional Court has allowed the objection of the contesting opposite parties on the ground that the mortgage deed in favour of the petitioners could not be treated as sale and did not confer upon them the rights claimed. In my opinion the Deputy Director of Consolidation has patently erred in negativing the claim of the petitioners on the ground mentioned in the impugned judgment and he has failed to examine the relevant question whether the mortgage-deed relied upon by the petitioners in the present case would be a void document or voidable. As regards the contention of the learned counsel for the opposite parties that Mst. Jagia had transferred her property through the mortgage-deed relied upon by the petitioners and not the property of the minors, I am not inclined to accept his contention. No doubt it is true that in the mortgage deed Mst. Jagia has mentioned the property "as her bhumidhari" and she has said that in case the mortgaged property went out of the hands of the mortgagees, they would realise the mortgage money from her property but if the document is read as a whole it does not give an idea that she was dealing with her own property and not the property of the minors. To my mind the document relied upon by the petitioners was executed by Mst. Jagia on behalf of the minors and on that score that Mst. Jagia had transferred her property and not the property of the minors, I am not prepared to hold that the document is void. However, the question whether the mortgage deed which will be deemed as a sale deed in the circumstances of the present case was void or voidable should have been specifically dealt with by the last Court of fact. The contesting opposite parties has challenged the mortgage deed before the civil Court but the suit abated and the aforesaid question has not been examined by the consolida tion authorities which should have been examined in view of the ruling reported in Dalip Singh v. Deputy Director of Consolidation and others (Supra). I think it proper to quash the impugned judgment and direct the revisional Court to examine that question and decide the controversy between the parties afresh in the light of the observations made above. In the result the writ petition succeeds and the impugned judgment of the Deputy Director of Consolidation dated 16th August, 1975 in Revision No. 367/497, Shea Bhajan and others v. Hira Lal and others is hereby quashed and the revisional Court is directed to decide the claims of the parties afresh in accordance with law. Parties are directed to bear their own costs. The stay order passed by the Court stands exhausted and the petitioners shall be entitled to withdraw the amount deposited by them in pursuance of the stay order of this Court when the revision petition flied by the contesting opposite panics fails. Till the decision of the revision petition before the Deputy Director of Consolidation the money deposited by the petitioners shall remain in deposit.