Das, J.:— On the 14th August 1895, one Thakur Barham, in consideration of a large sum of money then due by him to the defendants and of a present advance of Rs. 3,959-7-3, executed a bond in favour of the defendants by which he agreed to pay to the defendants the sum of Rs. 1,25,000 with interest thereon at 13 annas per cent, per month, and secured this sum by a mortgage in their favour of an eight annas of Tappa Patsunda in the Santal Pargana and eight annas of Milik Kosapet Amdar in Bhagalpur.

2. On the 15th September 1900, the defendants commenced a suit against Thakur Barham in the Court of the Subordinate Judge of Bhagalpur, to enforce the mortgage of the 14th August 1895, and on the 8th September 1902, recovered a mortgage decree as against Thakur Barham for Rs. 2,57,600 Thakur Barham appealed to the Calcutta High Court and, as a condition for stay of execution pending the disposal of the appeal, gave as further security another 2 annas of Patsunda. On the 16th December 1903, the Calcutta High Court dismissed the appeal of Thakur Barham. The defendants then commenced execution proceedings, and, on the 5th October 1904, purchased the 10 annas of Patsunda and 8 annas of Kosapat at a Judicial sale held in execution of their mortgage decree. The sale was duly confirmed, and, on the 21st December 1904, the defendants obtained delivery of possession of the properties purchased by them. Thakur Barham died on the 7th September 1905; and on the 7th April 1916, the plaintiffs who claim to have had a joint interest with Thakur Barham in all the properties that stood recorded in the name of Thakur Barham including the mortgaged properties, instituted the suit out of which this appeal arises for redemption of the mortgage of the 14th August 1895, and, in the alternative for possession. The learned Subordinate Judge agreeing with the contentions put forward on behalf of the plaintiffs, has given them a decree for possession.

3. The case of the plaintiffs, as made in the plaint, is a simple one. They contend that they were joint with Thakur Barham and that the proceedings taken by the defendants against Thakur Barham cannot affect their right to redeem the mortgage. They also contend that, Tappa Patsunda, being situate within the Santal Paraganas, the Bhagalpur Court had no jurisdiction to entertain the suit or to sell the mortgaged properties. They accordingly ask for a decree for redemption and in the alternative, for a decree for possession with mesne-profits. The defendants, in their written statement, rely upon the admitted fact that there was a settlement of the Santal Parganas including Tappa Patsunda in 1905, and they contend that the present suit is barred by certain provisions of Regulation III of 1872. On the merits they say that the properties dealt with by Thakur Barham formed part of his impartible zemindari and that the plaintiffs were not necessary parties to the mortgage action and have no right to redeem the mortgage. They also challenge the contention of the plaintiffs that the Bhagalpur Court has no jurisdiction to entertain the mortgage action.

4. The learned Subordinate Judge framed twenty-nine issues for trial between the parties; but, in my opinion, the questions that arise in the case are three in number, 1st, is the suit maintainable in view of Sections 11 and 25A of Regulation III of 1872; secondly, had the Bhagalpur Court jurisdiction to entertain the mortgage action; and lastly, was the zemindari of which Thakur Barham was in possession, an impartible zemindari and, if so, have the plaintiffs, in the events which have happened, any right to redeem the mortgage. The learned Subordinate Judge has decided all these questions in favour of the plaintiffs and has given them a decree for possession.

5. I will first consider the question whether the present suit is maintainable in view of Section 11 and Section 25A of Regulation III of 1872. In order to appreciate the arguments which have been advanced to us on the point, it is necessary to remember that there was a settlement of the Santal Parganas including Tappa Patsunda under the provisions of Regulation III of 1872 between 1903 and 1905, and that, in that settlement, known as McPherson's settlement, the defendants were recorded as owners of Tappa Patsunda. The certificates of publication of the Record-of-Rights were granted on Various dates in May and June 1905, and it is alleged by the defendants that they were duly published in the villages in accordance with the rules laid down in the Regulation.

6. On the 23rd May 1905, Gaja Barham for self and as guardian of the minors Nitia Nand and Pram Nand, Balbhaddar Barham, and Jai Kisshun Barham, presented a petition of objection in the Court of the Settlement Officer of Dumka in which they contended that Tappa Patsunda was the ancestral property of the objectors and that they had a right to get their respective names recorded in the settlement department in respect of 10 annas 8 pies share. Although Jai Barham's name does not appear in the petition of objection as printed in the paper book, it is clear from Mr. Allanson's order dated the 24th June 1905, that he was a party to the proceedings.

7. It will be noticed, therefore, that all the present plaintiffs were represented in the petition of objection which was rejected by Mr. Allanson, who succeeded Mr. McPherson as the Settlement Officer on the 24th June 1905. The learned Subordinate Judge says that this petition was filed before the completion of the record of rights. This is wrong. It was actually filed after the publication of the record-of-rights in respect of two hundred villages, and the decision of Mr. Allanson was pronounced after the publication of the record-of-rights in respect of the remaining villages.

8. On these facts it was argued that, in view of Section 11 and Section 25A of the Regulation, the sent suit is not maintainable. Section 11 of the Regulation provides as follows: “Except as provided in Section 25A, no suit shall lie in any Civil Court regarding any matter decided by any Settlement Court under these rules, but the decision and orders of the Settlement Courts made under these rules, regarding the interests and rights above mentioned, shall have the force of a decree of Court.”

9. Section 25A provides as follows where only the rights of zemindars and other proprietors as between themselves are concerned, a suit may, unless it is barred by Section 11 of the CPC, be brought in a Court established under the Bengal, Agra and Assam Civil Courts Act, 1887, to contest the finding or record of the settlement officer within three years from the date of the publication of the record-of-rights, or of the final order of the Revenue Court. But no such suit shall be brought in any court after the expiration of three years from such and such date. If any in such suit it is found that the finding of the settlement officer is erroneous, the record shall be amended accordingly.”

10. It was contended on behalf of the defendants that the question in controversy between the parties was decided by the settlement officer in favour of the defendants and that Section 11 of the Regulation operates as a bar to the suit. The plaintiffs replied that the rights involved in this suit fell within the class of rights mentioned in; Section 25A of the Regulation and that the present case therefore falls within the exception and not the prohibition of Section 11.

11. The defendants retorted that even then the suit is barred by limitation as it has been brought after the expiration of three years from the date of the publication of the record-of-rights.

12. Speaking with great respect, I think there has always been some confusion as regards the applicability of Section 11 and Section 25A of the Regulation, It was argued as though, when the rights of zemindars and other proprietors as between themselves are concerned, the prohibition; contained in Section 11 does not operate. I read the sections somewhat differently.

13. In my opinion section 11 bars every suit regarding any matter decided by any settlement court, except such suits as are brought to contest the finding of record of the settlement officer where only the rights of zamindars or other proprietors as between themselves are concerned provided they are brought within three years from the date of the publication of the record of rights. Section 11 provides that every decision and order of the settlement officer regarding the interests and rights of the parties shall have the force of a decree.

14. Section 25A provides a procedure for avoiding the decree only when the question in controversy between the parties involves the determination of the rights of the zemindars or other proprietors as between themselves. When the question in controversy between for parties does not involve the determination of such rights, the decree under section 11 cannot be avoided by a suit under section 25A; but when the question in controversy does involve the determination of such rights, the decree under section 11 can be avoided by a suit under section 25A.

15. In my opinion, section 11 operates in every case to give to every decision and order of the settlement courts the force of a decree, and section 25A enables a party affected by such decisions-aud orders to sue for setting aside such decisions and orders provided the rights decided fall within the class of rights mentioned in section 25A. I have no doubt whatever as to the rights of the parties under the Regulation. Under section 14, the settlement officer has to give due notice to the people of a village for which he is about to prepare a record-of-rights, so that all persons interested may bring forward their claims either in writing or by verbal application, and he has to enquire into, settle and record all rights in, or claims to, the lands of a village of which he is preparing a record of rights, even though such claims or rights may not be urged by the parties interested.

16. The parties, then, have an opportunity of representing their views to the settlement officer in the course of such enquiry and his decisions thereon are decisions within the meaning of S. 11 and operate as decrees of Court, and the only way in which such decrees may be avoided is by a suit under S. 25A, provided the decision affects the rights of zemindars and other proprietors as between themselves. But the settlement officer may himself set aside the decision in an appropriate proceeding under Section 24 of the Act which makes it obligatory on the settlement officer, after he shall have made the record-of-rights for any village, to notify and publish the contents of such record to the persons interested by posting it conspicuously in the village and otherwise in such manner as may be convenient and which enables any person interested to bring forward in the settlement courts within a period of six months from the date of publication of such record-of-rights, any objection he may desire to make to any part of such record.

17. The Section provides that any objection so made shall be enquired into and disposed of by a decision in writing under the hand of the officer presiding in the Court. The decision arrived at under Section 24 is again a decision within the meaning of section 11 and operates as a decree of Court, and the only way again in which such a decree can be avoided is again by a suit under Section 25A, provided the decision affects the rights of zamindars and other proprietors as between themselves. Section 25 provides that after a period of six months from the date of the publication of the record-of-rights of any village, such record shall be conclusive proof of the rights and customs therein recorded, other than the rights mentioned in Section 25A, except so far as concerns entries in such record regarding which objection by parties interested may still be pending in the original or appellate Court, or may still be open to appeal.

18. It follows from this provision that where the rights dealt with in the settlement proceeding are such rights as are mentioned in Section 25A, the record-of-rights cannot be relied on as a bar to a suit which asserts a right contrary to the entry in the record-of-rights, or Section 25. It is quite clear that the record-of-rights is not conclusive proof of the rights mentioned in Section 25A. But the decision which is the basis of the record-of-rights constitutes a bar to the suit under Section 11; A distinction has been drawn in the Regulation between “the decision and orders” of the settlement court and the record-of-rights.

19. The decision and orders have the force of a decree of court, whereas the record-of-rights is conclusive proof of the rights and customs therein recorded, other than the rights mentioned in Section 25A. In my opinion, when, in any suit, we are concerned with such rights as are mentioned in Section 25A, and a decision of the settlement court is pleaded as a bar to the suit, all that we have to see is whether there is such a decision as is alleged by the defendants, and it is wholly immaterial to enquire whether the record-of-rights was published in accordance with law.

20. Now the defendants have been recorded in the record-of-rights as the proprietors of Tappa Patsunda. The question was, as we have seen, directly raised by the plaintiffs before the settlement officer by their petition Ex. C, dated the 25th May 1905. The Settlement Officer directly decided the question against the plaintiffs by his order Ex. F.F dated the 24th June 1905. In my opinion that order operated as a decree between the parties under Section 11 of the Regulation. It is conceded that the rights decided by the settlement officer fell within the class of rights mentioned in Section 25A of the Regulation.

21. It must therefore follow that the plaintiffs had the right to contest the finding of the settlement officer, provided they brought their suit within three years from the date of the publication of the record-of-rights. Is the present suit, then, a suit to contest the finding or record of the Settlement Officer?

22. In my opinion, it is not. It is sufficient to refer to the plaint to make good the point, that the suit is not a suit to contest the finding or record of the settlement officer. There is not a word about the finding or record of the settlement officer in the plaint, and there is nothing in the plaint, which either expressly or by necessary implication invites the Court to set aside such finding or record.

23. In my view the present suit cannot be regarded as a suit under Section 25A of the Regulation, and, there being no challenge of the order of the settlement officer dated the 24th June 1905 that order operates as a bar to the present suit.

24. The learned Subordinate Judge was of opinion that the decision of a settlement court does not operate as a decree under Section 11 of the Regulation, unless there is proof of the publication of the record-of-rights. I have dealt with this point, and all that I need say is that I am unable to concur in this view. It is impossible, in my opinion, to escape from the provision of Section 11 that the decision and orders of the settlement courts shall have the force of a decree of court. There is nothing in the language employed by the Legislature in Section 11 to suggest that they shall have the force of a decree only on proof of the publication of the record-of-rights.

25. It was argued before us that the nature of a defence under Section 11 is substantially equivalent to a plea of res judicata, and that it was for the defendants to establish the decree upon which they relied as operating as resjudicata, and reliance was placed upon Nadiar Chand Singh v. Chunder Sikhur Sadhu(1) I quite agree that it is for the defendants to establish the decree upon which they rely but what is the decree under Section 11? Not the record-of-rights, but the decisions and orders of the settlement courts.

26. It was then argued that the plaintiffs could not be expected to bring a suit to contest the finding or record of the settlement officer, since they do not admit that there is a record-of-rights relating to these lands. The argument completely ignores the provisions of Section 25-A which gives a party the right to contest not only the record but also the finding of the settlement officer; and it is conceded that the plaintiffs were aware of the finding of the settlement officer contained in the order dated the 24th June 1905.

27. It was open to the plaintiffs to sue for setting aside that finding, but this course they did not adopt. In my opinion the decision of the 24th June 1905 constitutes a complete bar to the suit under Section 11 of the Regulation.

28. I will now deal with the question whether the record-of-rights was published in accordance with law. In other words I will assume that the suit is one under Section 25A, and enquire whether it has been brought within three years from the date of the publication of the record-of-rights.

29. In my opinion, the defendants have established that there was due publication of the record-of-rights in May and June 1905. The present suit, regarded as a suit under Section 25A, is clearly barred by limitation.

30. My decision on this point is sufficient to dispose of the appeal; but I think it just as well that I should deal with the other two points which have been argued before us. First, I will deal with the question of impartibility, as to which the onus is undoubtedly on the defendants. That the family is an ancient and a noble one admits of no doubt whatever. The history of the family will be found at page 244 of the District Gazetteer, Santal Parganas. It appears that one Deb Barm a Khetaur Chief of Kharagpur, being driven out of that tract by the Rajput invaders, obtained a grant of Patsunda and Barkop from the Moghul Viceroy of Emperor Akbar.

31. In 1687 the estate was divided between two of his descendants, Man Barm and Chandra Barm, Man Barm retaining Barkop, while Patsunda was handed over to his younger brother Chandra Barm. Thakur Barm is the lineal descendant of Chandra Barm. We have no authentic history of the mode of succession from Chandra Barm to Sital Barm, Sital had three sons, Fateh Barm Dowlat Barm and Ratan Barm. Permanent settlement was admittedly concluded with Fateh Barm. Fateh Barm died in January 1811 and was succeeded by his only son Tej Barm. Tej Barm died on the 30th January in 1848, leaving four sons, Tilak, Kirat, Rudar and Lach-man, of whom the eldest Tilak was recorded in the Government records as the owner of the property. Thakur Barm was the only son of Tilak, and succeeded him to the exclusion of his uncles.

32. In my opinion, the admitted history of the family makes the case of the defendants inherently probable. The founder of the family was a Khetauri Chief who, no doubt, in return for such services as he was able to render to the Moghul, secured a grant of an extensive tract of land from the Moghul. It is permissible to infer that which he secured as a Chief, he intended to retain as a Chief.

33. The next important event is the succession of Fateh Barm to the estate and the fact that permanent settlement was concluded with Fateh Barm to the exclusion of his brothers. It is admitted by the plaintiffs that Fateh Barm had two brothers, Dowlat and Ratan; but Tulsi Jha, the first witness examined on behalf of the plaintiffs says that they died minors during their father's life time, though, in cross-examination he admits that his evidence on the point is hearsay.

34. The learned Subordinate Judge says that the evidence of the plaintiffs shows that the two brothers “died during the life time of their father and that they left no heirs.” This is wrong. There is no evidence on the side of the plaintiffs that they left no heirs. The defendants have given evidence that Dowlat and Ratan left sons whose descendants are still in existence; but the evidence on this point is weak, and I am not prepared to differ from the learned Subordinate Judge on this point. The fact that the permanent settlement was concluded with Fateh Barm is therefore not conclusive.

35. The succession of Tej Barm calls for no comment since he was the only son of his father. Tej Barm however left four sons, Tilak, Kirat, Rudra and Lachman. On the 16th November 1848, Tilak applied for registration of his name in the Government record and asserted that, though his father had left three other sons, he alone was entitled to have his name recorded as the malik of the zemindaris and household goods left by his father.

36. It is necessary to quote the exact language employed by Tilak in making the application. “According to the custom of the family and under Act X of 1800”, he asserted, “your petitioner has been in possession and occupation of all the properties left by his father, considering them to be the Jungle tari Mahals, and has been paying the Government Revenue for the same. It is apparent that on the death of a father, his eldest son becomes the malik of all the zemindaris and household goods left by him, has a right to pass orders, and maintain his brothers and other heirs of the deceased”.

37. The learned Subordinate Judge says that the word “malik” means a manager, and that the petition Ex. 5, read as a whole, shows that the estate was a joint concern and that after the death of Tej Barm his sons become equal coparceners therein”. It may be assumed that the estate was the family property of a joint undivided family in the sense that it had never been divided and that the succession thereto would be governed by the rules of survivorship obtaining in a joint Mitakshara Hindu family; but an estate may be the family property of a joint undivided family, and yet be impartible.

38. There is, however, nothing in the petition to suggest that the brothers of Tilak were equal co-parceners with him in the estate. On the contrary, there is an assertion, clear and unequivocal that Tilak was in possession and occupation of all the properties left by his father to the exclusion of his brothers and that he alone was entitled to have his name recorded in the Government records as the proprietor of the estate. The reference to Regulation X of 1800 puts the matter beyond all reasonable doubt. But under Regulation XI of 1793, the estates of proprietors of land dying intestate were declared liable to be divided among the heirs of the deceased agreeably to the Hindu or Muhammedan Law.

39. But a custom having been found to prevail in the Jungle Mahals of Midnapore and other districts by which the succession to the landed estates invariably devolved to a single heir without the division of the property, it became necessary for the Governor-General in Council to pass a Regulation to save such customs from the operation of Regulation XI of 1793 Regulation X of 1800 was accordingly passed, and it provided that Regulation XI of 1793 shall not be considered “to supersede or affect any established usage which may have obtained in the Jungle Mahals of Midnapore and other districts, by which the succession to landed estates, the proprietor of which may the intestate, has hitherto been considered to devolve to a single heir, to the exclusion of the other heirs of the deceased”, and that “in the mahals in question the local custom of the country shall be continued in full force, as heretofore”.

40. The assertion of Tilak Barm in the petition was that he was in possession and occupation of all the properties left by his father to the exclusion of his brothers according to the custom of the family and under Regulation X of 1800. This is, in my opinion, equivalent to an assertion that the estate which belonged to his father, was an impartible estate, and had devolved on him as a single heir of his father.

41. This application was disposed of by a Rubakari of the Collectorate, Ex. T.T dated the 16th Jan, 1849. The rubakari shows that notices of the application were duly issued, that there was no opposition from anybody, that the petitioner examined three witnesses who gave evidence to the effect that Tilak Barm had succeeded to the estate according to family custom and that his brothers were in receipt of maintenance from him and that the Court directed the name of Tilak Barm to be recorded in the Government Sherista. Exhibit 8 and Exhibit T.T in my opinion, strongly support the case of the defendants.

42. In September 1862 Tilak died, leaving three brothers Sad a sod, Thakur Barm. If the property left by him was partible property, then Kirat Barm, as the eldest male member of the family, would be entitled to take up the management of the estate. But, as a matter of fact Thakur Barm, on the 14th January 1863 applied to have his name recorded in the Government sherista in respect of the zemindari which stood recorded in his father's name. He asserted in his petition, Ex. UU, that his father had died leaving him as his only heir, and that he had taken possession of the estate of the deceased. He asked that the witnesses named by him might be examined in support of the case and his name duly recorded in the Government sherista.

43. Notices of this application were apparently served on the brothers of Tilak, and Rooder Barm, one of the brothers of Tilak, promptly presented a petition of objection on the 27th February 1863. In this petition, Exhibit 8, he alleged that on the death of Tej Barm, all his sons came into possession of his estate, although the name of Tilak was recorded in the Government sherista. According to him, the custom of the family was that “all the brothers unanimously get the name of one of them registered in the Government sherista and the costs of maintenance, marriages and deaths, all the expenses of the three brothers are jointly defrayed from the usufruct of the said estate after the payment of Government revenue.”

44. There was thus a direct challenge upon the title of Thakur Barm and on his right to have his name recorded in the Government sherista in respect of the zemindari. Thakur Barm replied to this petiton by his petition Exhibit 8(a), dated the 26th March 1863. In this petition he asserted that his father Tilak Barm had succeeded to the estate according to the custom of the family and under the provisions of Regulation X of 1800, under which the eldest sonbecomes proprietor of all the properties left by his deceased father, and that the objection petition of Rooder Barm was not tenable inasmuch as he had accepted the petition on which Tilak Barm had succeeded in having his own name recorded. On the question of maintenance as to which his petition of the 14th January 1663 was silent and of which Rooder Barm had made a grievance, he said that he had not deprived Rooder of maintenance and that he was in receipt of it.

45. It is impossible to escape from the conclusion that there is, in this petition Exhibit 8(a), a definite assertion that the estate was an impartible one and that he had succeeded to it as the sole owner, subject only to the right of his uncles to receive maintenance from him. This position was accepted by the uncles of Thakur Barm, as the fifth paragraph of the petition, and statement signed by Rooder Barm at the foot of the petition, conclusively establish. That statement was as follows:—

“As Thakur Barm, the petitioner, has accepted the terms of the petition, dated the 16th November 1848, filed by Tilak Barm, upon which depended the proof of the allegations, contained in the objection petition in respect of the costs of maintenance, and of marriages and deaths, and has stated everything in this petition according to the custom prevailing in the family, I accept the contents of this petition and have no objection to the name of the petitioner being registered”.

46. I regard the petition of Thakur Barm, dated the 26th March 1863 and the statement signed by Rooder Barm at the foot of the petition as wholly destructive of the case of the plaintiffs. As I have said before, there is a definite assertion in the petition that according to the family custom and under the provisions of Regulation X of 1800, the eldest son becomes the proprietor of all the properties left by his deceased father. Rooder Barm in his statement at the foot of the petition says that Thakur Barm “has stated everything in this petition according to the custom prevailing in the family”, and he accepts the contents of Thakur Barm's petition. From his statement it would appear that his object in opposing the application of Thakur Barm was to get an admission from him as to his right of maintenance.

47. There was that admission in the petition of Tilak Barm, and his brothers did not oppose his application. There was no such admission in the petition of Thakur Barm dated the 14th January 1863, and there was a prompt challenge upon his title. But in the petition of the 26th Match 1863, Thakur Barm made it quite clear that he did not intend to repudiate the position adopted by his father, and they at once admitted the validity of the family custom which was the basis of Thakur Barm's claim. The learned Subordinate Judge says that the transaction does not show that the parties considered the estate to be impartible and that the estate was in fact recognised by them as joint.

48. The learned Subordinate Judge is obviously under the impression that an assertion, that an estate is the family property of an undivided family, carried with it an admission that it is not an impartible estate. This is of course an erroneous view. I regard the documents in connection with Thakur Barm's succession to the estate as strong evidence in support of the ‘defendants’ case that the estate is in fact an impartible one.

49. In 1878, the estate was brought under the settlement operation which took place in pursuance of Regulation III of 1872, and Thakur Barm was recorded as the proprietor of the estate. It is argued by the defendants that, had the plaintiffs any proprietary interest in the estate, they would undoubtedly have been recorded in the record-of-rights to the extent of their interest in the estate.

50. The learned Subordinate Judge dismissed the argument as wholly inadmissible. According to him, as the name of Thakur Barm stood recorded in the Government records as the proprietor of the estate, it is only natural that his name should be recorded in the record-of-rights. He also thought that the record-of-rights “was in consonance with the conception of joint Hindu family”.

51. The argument employed by the learned Subordinate Judge completely overlooks the policy of the legislature enacting Regulation III of 1872 which was, as the learned Judges in Januki Persiad Jha v. Babu Lal Jha, (2) pointed out, “to have a complete record of rights and interests inland in the Sontal Pargannas and to exclude the jurisdiction of Civil Courts except in certain matters”.

52. Section 12 of the Regulation empowers the settlement officers to enquire into, to decide, and to record the right of the zamindars and other proprietors, and Section 13 lays down that the record-of-rights to be prepared by a settlement officer shall show the nature and incidents of each right and interest held by each class of occupiers or owners in village, or, if need be, of each individual owner, occupier or headman in a village.

53. Section 14 requires the settlement officer to enquire into, settle, and scored, all rights in, or claims to, the lands of a village of which he is preparing a record-of-rights even though such claims or rights may not be urged by the parties. The Regulation, in my opinion, gives no scope for the argument that the members of a joint family may allow the name of the karta to be recorded in the record-of-rights and yet claim to have an interest in the estate.

54. The case just cited makes interesting reading. One Joyram died leaving three sons, Babu Lal, Surjee and Dinabandhu. Surjee died in 1308, leaving four sons, who were the plaintiffs in the action. Their case was that the family properties remained in charge of their uncles, defendants 1 and 2 and they claimed a partition of the joint family properties. But the defendant No. 1 was recorded in the settlement records as the proprietor of the estate, and he took the plea that the suit was barred under Section 25-A of the Regulation which, as we have already seen, enables a party prejudiced by the record-of-rights to bring a suit to contest the record within three years of the date of the publication of the record-of-rights and which lays down that no such suit shall be brought after the expiration of three years from that date. The Court gave effect to the plea and dismissed the plaintiff's suit as regards properties in Sontal Parganas. The decision is an authority for the view that the record-of-rights framed under Regulation III of 1872 operates as between members of a joint Hindu family-just as completely as between strangers. In my opinion it is impossible to take the view that the entry in the record-of-rights, to quote the language of the learned Subordinate Judge, “was in consonance with the conception of a joint Hindu family”.

55. The defendants have also relied upon a series of transactions into which Thakur Barm entered, by which he dealt with the estate as the sole owner thereof. The first is a statement, Exhibit M, made by Thakur Barm to Babu Surya Narain Singh in the course of a negotiation for a loan. He asserted that he was the sole proprietor of the entire 16 annas of Tappa Patsunda. The next in point of time is Exhibit O, the bond executed by Thakur Barm in favour of the defendants on 26th Kartic 1300, and the last is Exhibit DD. the bond executed by Thakur Barm in favour of the defendants on 30th Sawan 1302.

56. In each of these documents he asserted his sole and exclusive title to the sixteen annas of Tappa Patsunda. It was the last mentioned transaction that formed the basis of the mortgage suit brought by the defendants against Thakur Barm, and there is evidence that Gaju Barm, the father of the plaintiffs 3 and 4 was aware of the mortgage decree that had been passed against Thakur Barm and that he was actually negotiating for a loan to pay off the defendants. That evidence will be found in the orders, dated the 28th April 1904 and 25th July 1904, respectively, of the Court executing the decree against Thakur Barm, in Exhibit 9, the affidavit of one Pheku Lal and Exhibit H, the deposition of Pheku Lal in those proceedings.

57. It appears that about the time when the Court was about to pass orders for the sale of the mortgaged properties, an application was filed for adjournment of the sale on the ground that the judgment-debtor was negotiating for a loan by which he proposed to pay off the decree-holders. The deposition of Pheku Lal in those proceedings makes it perfectly clear that Gaju Barm was one of the persons who was acting on behalf of Thakur Barm. Now it may be asked why Gaju Barm should make any endeavour to have the defendants' mortgage satisfied if in point of fact that mortgage conveyed no interest to the defendants?

58. If indeed Thakur Barm were not the sole proprietor of the properties mortgaged, the mortgage decree obtained by the defendants could not affect the interest of Gaju Barm, and one would not expect Gaju Barm to make a tour of the banking houses in order to raise a loan on behalf of Thakur Barm. Gaju Barm in my opinion, had no doubt that Thakur Barm was the sole proprietor of the estate which was an impartible one.

59. Then there is a clear admission by Mussammat Kalahari, ore of the plaintiffs in the action that “the estate Patsunda is an impartible estate and is placed in the hands of a single member who manages the property for the time being”, see Exhibit Y, the petition dated the 1st of June 1906. Then there is some evidence of conduct in regard to Jai Kissen, another plaintiff in the present action, showing that, so far as he is concerned, he believed in the custom of primogeniture.

60. Exhibit MM4 shows that Jai Kissen claimed a khorposh grant during the settlement proceedings, a claim which was disallowed by the settlement officer. Now in my opinion an assertion that a person has a khorposh grant in the estate carries with it the admission that he has no proprietary interest in the estate; for, if the estate were an ordinary partible estate be would undoubtedly have a proprietary interest in it. (Here the learned Judge deals with the oral evidence which is all in favour of the defendants.) It remains for me to consider the only piece of evidence on which the plaintiffs rely. It is pointed out that in 1687 the estate then consisting of Barkop and Patsunda was divided between two of the descendants of the original founder of the family, and it is argued that the partition which admittedly took place in 1687 completely destroys the custom upon which the defendants rely.

61. I am unable to agree with this contention. There are numerous instances to be found in the Law Reports where separate estates have been formed by the division of one entire estate; but it has never been held that is a circumstance which decides the issue in favour of partibility. We do not know the circumstances unbu twhich the division took place in 1687; der we do know that there never has been a partition since 1687 and that, to quote the language of Bolaki Das, “the eldest son of the eldest branch bcomes the Raja, and this has all along been the family custom”. I have considered all the evidence on this isuse with great anxiety, and I have come to the conclusion that the defendants have established their case that the estate which was in the possession of Thakur Barm is an impartible one.

62. It was argued by Mr. Mullick on behalf of the respondents that, even assuming that the estate in the hands of Thakur Barm was as impartible one, the plaintiffs have sufficient interest in it to challenge the validity of the mortgage executed by Thakur Barm in favour of the defendants, and, as a last resort, to redeem the mortgage. Now it is quite true that the impartibility of the estate did not destroy its nature as joint family property nor rendered it the separate property of the last holder, unless there was something equivalent to partition which, I am satisfied, there was not.

63. But what are the rights of the members of the joint family other than the holder of the estate? If this case were argued before the decision of the Judicial Committee in Sartaj Kuar v. Deoraj Kuari(3) Mr. Mullick's argument would be conclusive; but, in that case, it was held that the property in the paternal or ancestral estate acquired by birth under the Mitakshara Law is so connected with the right to a partition that it does not exist when there is no right to it. Mr. Mullick then argues that the decision in Sartaj Kuar's case has been misunderstood by the Courts and that the Judicial Committee in Baijnath Prasad v. Tejbali Singh(4) has explained that decision.

64. In dealing with Sartaj Kuar's case, the Judicial Committee in Baijnath Prasad's case, said as follows: “Now what was decided was that in an impartible Raj there was no restriction on the power of alienation by the member of the family who was on the gaddi and was in possession, in respect that there was no such right of co-ownership in the other members so as to give them a title to prevent such alienation. The right of the other members that was being considered was a presently existing right. The chance each member might have of a succession emerging in his favour was obviously outside the sphere of enquiry”.

65. It was argued, on this passage, that, though there is no right in the other members to prevent alienation during the lifetime of the holder making the alienation, that right comes into existence on the death of the holder. I am unable to see that the decision in Baij nath Prasad's case gives any support to the argument. The question involved in Baijnath's case was one of succession, and it was argued on behalf of the appellants on the basis of what was said in Sartaj Kuar's case that there was no coparcenary which would give the succession to the respondent. Their Lordships pointed out that Sartaj Kuer's case decided no question of succession but that it considered the rights of the other members “as a presently existing right”.

66. In my opinion, the argument is an impossible one, having regard not only to Sartaj Kuar's case but also to Pittapur case Venkata Surya Mahipati v. Court of Wards(5). I hold that the plaintiffs bad no interest in the mortgaged properties at the time of the mortgage and were not necessary parties to the mortgage action and cannot be allowed, in this action to redeem the mortgage.

67. The only other question left for determination is whether the Bhagalpur Court had jurisdiction to entertain the mortgage action brought by the defendants against Thakur Barm. The matter in dispute is that suit exceeded the value of Rs. 1,000, and the Code of Civil Procedure was therefore applicable; see Maha Prasad Singh v. Ramani Mohan Singh(6). Section 19 of the CPC (Act XIV of 1882) provided that “if the immoveable property be situate within the limits of different districts, the suit may be instituted in any Court, otherwise competent to try it, within whose jurisdiction any portion of the property is situate”.

68. The plaintiffs in their plaint alleged that one of the properties mortgaged was situate within the jurisdiction of the Subordinate Judge of Bhagalpur. This was not disputed by Thakur Barm in his written statement, but he asserted, in the second paragraph of his written statement that the suit was “not fit to be entertained” by the Bhagalpur Court, and that it should have been instituted in the Court of the Sub-divisional Officer of Godda, having power of a Sub-Judge”.

69. In the third paragraph, he gave his reasons for his assertion that the Bhagalpur Court had no jurisdiction to try the suit. According to him the Code of Civil Procedure was not “effective” in the Santal Pargana, and as one of the properties mortgaged was situate in the Santal Parganna, the Bhagalpur Court had no jurisdiction to try the suit. In the fifth paragraph of the written statement, he contended, without giving any reason therefor, that the Bhagalpur Court could not, in any circumstances, pass a decree so as to affect the property situate in the Santal Pargana. At the hearing of the suit, the defendant did not appear; and the learned Subordinate Judge came to the conclusion, on the pleadings, that he had complete jurisdiction to try the suit.

70. On appeal to the Calcutta High Court, it was pressed on behalf of Thakur Barm that the decision of the Subordinate Judge as to his jurisdiction to entertain the suit was erroneous. The question was again argued on the pleadings, and the High Court rejected the argument which was advanced on behalf of Thakur Barm. The direct attack on the jurisdiction of the Bhagalpur Court has accordingly failed. It has now been made the subject of a collateral impeachment in this suit.

71. As I have said before, the Bhagalpur Court had, under the Code of Civil Procedure, general jurisdiction to try the suit; but the plaintiffs rely upon Section 5 of the Regulation III of 1872 which provided as follows: “Till such time as a settlement of the whole or any part of the Santal Pargana shall be mad; under the rules hereinafter provided, and the said settlement shall be declared by Notification in the Calcutta Gazette to have been completed and concluded, no suit shall lie in any Court established under the said Act VI of 1871 in regard to any land or any interest in or arising out of any land or for the rents and profits of any land except as hereinafter provided; but such suit shall be heard and determined by the officer appointed by the Lieutenant Governor of Bengal under Section 2 of the said Act 37 of 1855 or by the settlement officers here-in-after mentioned, according as the said Lieutenant-Governor from time to time direct.” This is followed by a proviso which does not affect the present case.

72. The first settlement of the Santal Parganas known as the Woods Settlement began in 1875 and was in fact concluded in 1879. The next Settlement known as McPherson's Settlement began in 1879. The mortgage suit was instituted in the Bhagalpur Court on the 17th of September 1900. But though the first settlement was concluded in 1879, by a strange omission on the part of the authorities, no notification has yet been issued declaring the settlement to have been completed and concluded. It follows, therefore, that, in the special circumstances of the case, the Bhagalpur Court had no jurisdiction to try and determine the suit.

73. The question now arises, whether the jurisdiction of the Court to entertain the mortgage action can now be impeached in this suit. Jurisdiction may be defined as the power and authority conferred on a Court to pronounce the sentence of the law or to award the remedies provided by law, upon a state of facts, proved or admitted, referred to the Court for decision and authorised by law to be the subject of investigation or action by that Court, and in favour of or against, persons who present themselves, or who are brought before the Court in some manner sanctioned by law as proper and sufficient. See Black on Jurisdiction, Section 215.

74. The rule is well established, that when the want of jurisdiction of a Court is apparent on the face of the record, any judgment rendered by such a Court is null and void, incapable of ratification and subject to collateral impeachment. But it is equally well established that the Court has jurisdiction to decide whether it has jurisdiction to entertain the suit, and that the decision of the Court that it has jurisdiction is final and conclusive in all collateral enquiries.

75. In this case, the question of jurisdiction was distinctly raised by Thakur Barm. The Court decided that it had jurisdiction to entertain the suit. That decision was made the subject of a direct attack in the High Court. The High Court upheld the decision of the Subordinate Judge. That decision should, on ordinary principles be regarded as final and conclusive so far as this suit is concerned.

76. But it was argued by Mr. Mullick, on behalf of the Plaintiffs that the question was not raised in the form in which the Plaintiffs have raised it in this suit. The basis of this argument is that Section V of the Regulation was not specially pleaded as having ousted the jurisdiction of the Civil Court.

77. It is true that there is no reference to Section V of the Regulation in the written statement, but Thakur Barm did contend that, under no circumstances had the Court any power to affect the property situate in the Santal Parganna by its decision. In my opinion the question was raised and finally decided and that decision is not open to impeachment in this suit.

78. But if the question was not, in fact, raised, the plaintiff's are in no better position. As I have said before, but for the fact that the authorities forgot to issue a notification declaring the settlement to have been completed and concluded the Bhagalpur Court had complete jurisdiction to try and dispose of the suit. The absence of jurisdiction in the Bhagalpur Court therefore, depended on a fact which had to be proved, like any other fact in the case.

79. In my opinion, when there is no want of jurisdiction in the Court, to try a suit, that is to say, when the want of jurisdiction is not apparent on the face of the proceedings, but the absence of jurisdiction depends on a fact, in the knowledge of the party which he had an opportunity of bringing forward in the Court, then, if he does not bring that fact forward but allows the Court to proceed with the judgment, he ought not to be permitted to impeach the jurisdiction of the Court in any collateral proceeding.

80. The question has often been debated in England in connection with the grant of a writ of prohibition, and the distinction between a latent want of jurisdiction, i.e something becoming manifest in the course of the proceedings, and a patent want of jurisdiction, i.e a want of jurisdiction apparent on the face of the proceedings was pointed out by Lopes, L.J, in Farquharson v. Morgan(7).

81. In my opinion, the Bhagalpur Court had, on the face of the proceedings, complete jurisdiction to try and dispose of the mortgage action and it is not open to the plaintiffs now, in this suit, to impeach that jurisdiction on the ground of the existence of a fact, which fact was never put forward in that suit.

82. I would allow this appeal, set aside the judgment and decree of the Court below and dismiss the plaintiffs' suit with costs throughout.

83. This judgment will, by consent of parties, govern F.A No. 135 of 1919.

84. The suit giving rise to F.A No. 135 of 1919 will accordingly stand dismissed, but without costs.

85. Adami, J.:— I entirely agree.

86. Appeal allowed.