Judgement

Appeal (No. 107 of 1921) from a decree of the High Court (July 9, 1918) affirming a decree of the Subordinate Judge of Bhagalpur (September 14, 1914) subject to a variation not material to this report.

The suit was brought in 1910 by a mortgagee, represented by the first four respondents, to enforce a mortgage executed in 1895 by Raja Udit Narayan Singh in respect of a large pargana called Handwa situated in the Sonthal Parganas. The mortgagor died childless in 1896, having by his will authorized his widow to make an adoption and provided that the son adopted should " succeed to the gaddi and become owner of the old zamindari and istamarari mukarrari rights, which continue from before the British administration." The first defendant was the widow, and the second the adopted son, the present appellant, who was then a minor ; certain alleged incumbrances were also joined.

The appellant by his guardian ad litem pleaded that the late Raja had merely the estate of a ghatwal terminable with his life, and inalienable except with the consent of the Government, and he submitted that the Secretary of State for India in Council was a necessary party; he also objected that, having regard to s. 6 of the Sonthal Parganas Settlement Regulation (III. of 1872), not more than twice the principal amount could be claimed under the mortgage.

The following issues material to this report were framed —

2. Are the defendants Nos. 1 and 2 or either of them estopped from pleading that the mortgaged property in Pargana Handwa is incapable of transfer by reason of its being a ghatwali tenure ? 4. Was the late Udit Narayan Singh recorded as mukarrari istamrardar in respect of the mortgaged property in the record of rights framed and published under Reg. III. of 1872 ? If so, is it open to the defendant to plead that the said Udit Narayan Singhs right in the said property was that of a ghatwal? (5 was a similar issue as to the appellant and the record of rights of 1900). 6. Is the mortgaged property in the said Pargana Handwa a ghatwali tenure subject to the performance of any public service duty, and whether it is inalienable, and was the interest of the said Raja Udit Narayan Singh in the said property terminable with his life ? 7. Can the defendants Nos. 1 and 2 or either of them set up any right of interest in the mortgaged premises in derogation of the disposition, if any, contained in the will of Raja Udit Narayan Singh ? If so, whether the Raja had any right to make any such disposition ?

The trial judge (the Subordinate Judge of Bhagulpur) made a decree in favour of the plaintiff. On appeal to the High Court that decree was affirmed subject to a modification whereby the interest allowed was restricted. On the question of interest there was a cross-appeal consolidated with that here reported.

The history of the tenure, and the material terms of the patta of 1776 and a confirmatory grant of 1794, which were relied on by the appellant, appear from the judgment of the Judicial Committee.

The trial judge answered issue 2 in the affirmative, on the ground that the statement in the mortgage that the land was held on istamrari mukarrari tenure was a representation that it was not on ghatwali tenure, and that that representation estopped the present appellant. On issues 4 and 5 he held that the defendants were precluded from pleading that the land was held on ghatwali tenure, as it had been entered in the record of rights merely as istamrari mukarrari, and s. 25 of Reg. III. provided that the record was to be "conclusive proof of the rights and customs therein recorded.” On issue 6 he recorded a finding that the tenure was not ghatwali and was alienable. The grounds of his decision are fully stated in the present judgment.

On appeal to the High Court the learned judges (Roe and Coutts JJ.) were of opinion that the pargana was held as a Mogal ghatwali tenure before the cession, that it then became a Government ghatwali, and that nothing had been don