BINDESWARI CHARAN SINGH Vs. BAGESHWARI CHARAN SINGH

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Patna dated 29 July 1932 which reversed a decree of the Additional Subordinate Judge of Hazaribagh dated 31st March 1928 and decreed the plaintiff-respondent's suit with costs. The following pedigree shows the relationship of the parties : Thakur Jadu Charan Singh was the owner of an impartible estate in the District of Hazaribagh. On his death intestate in 1924 the respondent succeeded to the estate, his father having died in 1920. The management of the estate was vested in a manager appointed under S. 2, Chota Nagpur Encumbered Estates Act (6 of 1876) from 1894 until 15 May 1909 when it was released and made over again to Jadu Charan, in accordance with the provisions of the Act. The estate was again vested in a manager under the Act on 24 July 1921 and it is still under management. On 17 November 1909 Jadu Charan executed a maintenance grant in favour of the appellant, transferring to him villages and lands yielding an annual income of Rs. 1,300. Doubt being entertained as to whether, in view of the provisions of S. 12-A of the Act, the sanction of the Commissioner to the grant should have been obtained, the appellant, on 4 March 1916 sought the sanction of the Commissioner, but this was refused by an order dated 26 April 1916. Section 12.A provides as follows : 12-A.-(1) When the possession and enjoyment of property is restored under the circumstances mentioned in the first or the third clause of S. 12, to the person who was the holder of such property when the application under S. 2 was made, such person shall not be competent, without the previous sanction of the Commissioner- (a) to alienate such property, or any part thereof, in any way, or (b) to create any charge thereon extending beyond his lifetime. (2) If the Commissioner refuses to sanction any such alienation or charge, an appeal shall lie to the Board of Revenue, whose decision shall be final. (3) Every alienation and charge made or attempted in contravention of sub-S. (1) shall be void.

(2.) The present appellant, having attained majority on 4 September 1917 instituted suit No. 117 of 1917 in the Court of the Subordinate Judge of Hazaribagh against Jadu Charan and his brothers Ramdhan and Jibdhan, claiming a maintenance grant of the yearly value of Rs. 4,000-he being already in possession under the grant of 1909 of properties yielding an income of Rs. 1,200 in cash and Rs. 100 in kind- and maintaining that the sanction of the Commissioner was not necessary. All three defendants filed written statements, the present respondent's father, in particular, contesting the suit. On 12 November 1919 the Subordinate Judge decreed the suit and ordered and decreed that it be declared that the plaintiff is entitled to get as maintenance grant from defendant 1 proparties yielding an income of Rs. 3,500 in cash and Rs. 500 in kind annually and it be further declared that the grant made to the plaintiff by his father on Kartik Sudi 5, 1966 S. is legally valid and after leaving out the khorposh properties so obtained by the plaintiff, he do get additional properties in maintenance from defendant 1 yielding an annual income of Rs. 2,300 in cash and Rs. 400 in kind.

(3.) Defendant 2, the present respondents' father, who had not appeared at the trial, applied for a rehearing under O. 9, R 13, Civil PC, but the application was rejected. On 21 February 1920 Jadu Charan, defendant 1, in implement of the order of the Court, executed and registered a maintenance grant to the present appellant of further properties yielding an income of Rs. 2,300 in cash and Rs. 400 in kind. This grant was filed in Court and entered, as satisfaction of the liability of defendant 1, on 27 February 1920. The respondent's father having died on 30 January 1920, the respondent became the owner of the impartible estate, which again came under the Encumbered Estates Act on 24 July 1921. The respondent instituted the present suit, through his representative and next friend, the manager of the estate, on 14 May 1926, and impleaded as defendants the appellant and the mortgagee of some of the properties in suit. In the plaint the respondent asked for a declaration that the two maintenance grants of 1909 and 1920 are illegal and invalid and not binding on him, and asked for possession and mesne profits. The suit was defended by the appellant, and the following issues, settled in the suit, are relevant to this appeal : 4, Are the judgment and decree passed in Suit No. 117 of 1917 collusive? 5 Are (sic) the findings in Suit No. 117 of 1917 of the Subordinate Judge of Hazaribagh operate as res judicata in the present suit ? 7. Are the grants dated 17 November 1909 (Kartik Sudi 6 of 1966 Sambat) and dated 21 February 1920, affected by S. 12-A, Encumbered Estates Act ?