Agarwala, J.:— The appellant, who was the plaintiff in the court below, is the present holder of the Dargguli estate in Chota Nagpur and is a: grandson of Thakur Jadu Charan Singh, the previous holder of the estate. Jadu Charan had two sons by his first wife, namely, Ramdhan Charan Singh and Jibdhan Charan Singh; by his second wife, Thakurain Jagarnath Koeri, he had a third son, Bindheshwari Charan Singh. The plaintiff Bagheshwari Charan Singh is the son of Ramdhan Charan. In 1890 Jadu Charan gifted several villages to his second wife for the maintenance of herself and any children she might bear him. The income of these villages was stated to be about Rs. 800 per annum. In 1894 the management of the estate was taken over under the provisions of the Chota Nagpur Incumbered Estates Act of 1876. It was released to Jadu Charan on the 15th of May, 1909. Section 12-A of the Act, however, continued to apply to the estate. On the 16th of June, 1909, Jadu Charan executed another deed of gift of certain villages in favour of his second wife, and on the 17th of November of the same year he made a khorposh grant in favour of his youngest son Bindheshwari of villages and lands whose annual ialue was stated to be Rs. 1,300. These lands are described in schedule A to the plaint of the present suit. The sanction of the Commissioner under section 12-A was not obtained either in respect of the gift or the grant; but seven years later, on the 14th of March, 1916, Jadu Charan applied to the Commissioner to sanction them. At the same time two petitions for sanction were filed by the Thakurain, one on behalf of herself in respect of the gift to her of the 16th of June, 1909, and the other as guardian of Bindheshwari and in respect of the grant to him of the 17th of November, 1909. The Commissioner refused his sanction.

Bindheshwari attained his majority on the 21st of September, 1917, and on the 2nd of November, 1917, he instituted suit no. 117 of 1917 against Jadu Charan, his father, and Jibdhan Charan and Ramdhan Charan, his brothers. This was a suit a for maintenance. Ramdhan filed a written statement in that suit but took no further steps in it. On the 12th of November, 1919, a decree was passed in that suit, under which Bindheshwari was to get a khorposh of properties yielding an income of Rs. 2,300 in cash and Rs. 400 in produce in addition to the lands covered by the grant of 1909. An application under Order IX, rule 13, Civil Procedure Code, was made by Ramdhan but was dismissed on the 3rd of January, 1920. Then, on the, 21st of January, Jadu Charan, purporting to act in obedience to the decree, executed a khorposh grant in favour of Bindheshwari Charan in respect of certain properties yielding an income of Rs. 2,700 and including the right to the minerals. These properties are described in schedule B to the plaint. In addition to these schedule B properties the grant also purported to convey the schedule A properties which were covered by the deed of 1909. Ramdhan died on the 30th of January, 1920. The management of the estate was again taken over under the Chota Nagpur Incumbered Estates Act in 1921. On the 21st of February, 1924, Jadu Charan died intestate. The plaintiff Bagheshwari, son of Ramdhan, succeeded under the rule of lineal primogeniture. Some of the properties included in the grant of 1920 were subsequently usufructuarily mortgaged to defendant no. 2.

Bagheshwari instituted the present suit on the 14th of May, 1926, in the Court of the Subordinate Judge of Hazaribagh, through the Manager of the Dargguli Incumbered Estate, against Bindheshwari Charan and the usufructuary mortgagee. He prayed for a declaration that the grants of 1909 and 1920 were invalid and inoperative, for recovery of possession of the schedules A and B properties and for recovery of Rs. 9,500 as mesne profits for 1981 and 1982 Sambat and Rs. 200 as damages for timber and wood removed during those years. He alleged that the decree in suit no. 117 of 1917 was collusive; that suit had abated for non-substitution or parties on the death of Ramdhan; and that under a custom prevailing in the estate the proprietor could make khorposh grants only of property yielding an income of Rs. 100 per annum and khas jote land up to 12 bighas. He also contended that the grants were invalid for want of the Commissioner's sanction under section 12-A. The defendant no. 1, on the other hand, pleaded inter alia that the decree in the 1917 suit operated as res judicata with the result that the plaintiff could not now be heard to say that the holder's right to make khorposh grants was limited by custom, or that the grant of 1909 was invalid, or that he (the defendant) was entitled to less than a khorposh grant yielding Rs. 4,000 a year. His contention was that a decision on all these points is either expressed or implicit in the decision of the suit of 1917. The defendant also pleaded limitation with respect to the schedule A lands, claiming to be in adverse possession of them since 1909. It is not disputed that he has been in possession since then.

The Subordinate Judge dismissed the suit. He found that the custom averred by the plaintiff was not proved; that the decree in the suit, of 1917 was not void on account of collusion and that the decree in that suit was a final and not a preliminary decree and, therefore, that the suit had not abated for non-substitution of the present plaintiff in place of his father. He also found that the grant of 1909 was void by reason of the want of the Commissioner's sanction under section 12-A of the Act, but came to the conclusion that the decision in the 1917 suit operated as res judicata on this point and, therefore, that the grant must be treated as valid. With regard to the grant of 1920 he held that section 12-A was controlled by section 23 which permits the bringing of a suit for maintenance, and that the grant being in pursuance of the decree obtained in such a suit was not rendered void by section 12-A except as to the mineral rights which were not mentioned in the decree. Having found that the grant of 1920 was valid, and that the grant of 1909 must be treated as valid, the Subordinate Judge held that the question of adverse possession did not arise, but expressed an opinion that if the grants were invalid recovery of the properties covered by the grant of 1909 was barred.

With regard to limitation, it is clear that if the grant of 1909 was valid, no question of adverse possession can arise; and that if that grant was invalid, the present claim to recover the land covered by the grant is time barred, unless there has been such an acknowledgment as is contemplated by section 19 of the Limitation Act. Plaintiff contends that the application for sanction made on behalf of Bindheshwari Charan on the 4th of March, 1916, constitutes such an acknowledgment and he relies on the decision of the Privy Council in Bagheshwari Charan Singh v. Jagarnath Kuari. That was a suit instituted by the present plaintiff to recover from the mother of the present defendant no. 1 the properties of which she was in possession under the gift of the 16th of June, 1909, on the ground, inter alia, that the gift was void by reason of want of the Commissioner's sanction under section 12-A. The defendant in that suit pleaded adverse possession for more than twelve years. To this defence the plaintiff replied that the application for sanction made in 1916 was an admission which constituted an acknowledgment under section 19 of the Limitation Act. The High Court (Das and Adami, JJ.) negatived the contention. This decision was reversed by the Privy Council. The petitions filed by the Thakurain for sanction in 1916 on behalf of herself and on behalf of Bindheshwari were in precisely the same terms. The material words of the petitions were

“That in view of the petition filed by Thakur Jado Charan Singh your petitioner begs to file the original deed of grant and prays that your honour may be pleased to sanction the same or order fresh grant on the same terms to be executed.”

The only difference between the Privy Council case and the present one, on the question of limitation, is that in the present case the admission was made not by defendant no. 1 himself who was then a minor, but by his mother on his behalf. She, however, had been appointed his guardian on the 14th of November, 1906, and it is, therefore, clear that in view of the provisions of section 21 of the Limitation Act the admission made by her binds him. Mr. Mullick for the respondent-defendant submitted that the decision of the Privy Council as to the correct construction of the petition of 1916 was not binding in the present case. As I have already said, the two petitions filed by the Thakurain were in precisely similar terms and I am, therefore, of opinion that we are bound by the construction placed by their Lordships of the Privy Council on the document which was before them. The matter is of no importance because I should have construed the documents in the same way myself.

The custom alleged by the plaintiff in the present suit was also pleaded in the written statement which he filed in the suit of 1917. In the absence of evidence in support of the plea the Subordinate Judge held in that suit that the alleged custom was not proved. The Subordinate Judge who has tried the present suit has heard such evidence as was produced before him with regard to the custom and has decided that it does not establish the custom. I agree with his finding. If it had been proved, it would have imposed an unusual restriction on the right of the proprietor of an impartible estate to make provision for the dependent members of his family by means of adequate khorposh grants. It has nothing to commend it and the evidence adduced in support of it is unconvincing. That evidence consists of certain khewats and the statements of two witnesses Lachmi Charan Singh and Mahabir Prasad. The khewats merely show that when the record of rights was prepared some eighteen years ago certain small khorposh grants existed. There is nothing to show the relationship in which the grantees stood to the grantors, and they do not negative the right of the proprietor of this impartible estate to make adequate khorposh grants to his son. Furthermore, the khewats merely show the extent of the grants at the time of the survey and not their extent at the time the grants were made. Lachmi Charan Singh claims to have heard of the custom from his uncle and another distant relative when he was a youth aged 15 to 18 years. His evidence regarding the occasion on which he heard of the custom inspires no confidence in his statement. Mahabir Prasad held an ancestral jagir in a village in the estate and was formerly in the service of Jadu Charan Singh. He claims to have heard of the custom from Jadu Charan in the course of a litigation some eighteen years ago. It is clear, however, that he did not hear of it up to 1912, for in that year he deposed is the course of a survey proceeding that the amount of khorposh was not regulated by custom.

The custom was set up by the present plaintiff in a, suit for maintenance instituted by his uncle Jibdhari Charan in 1925. It was negatived and Rs. 65 a month was determined as maintenance. In 1912 Jadu Charan deposed that the amount of khorposh grant was not regulated by custom. This, however, is considerably discounted by the fact that he was deposing three years after he himself had made a grant inconsistent with any such custom. The karpardaz of defendant no. 2 in the present case has denied the existence of the custom, but his connection with the Dargguli estate dates only from 1965 Sambat. Lastly, there is the evidence of defendant no. 2 himself and he also denies the custom. Although I am not prepared to place any great reliance on the negative evidence of the defence. I am equally unconvinced by the evidence adduced on this piont by the plaintiff on whom lay the onus of establishing the custom. I, therefore, hold that the custom has not been established.

I shall now consider the sections of the Chota Nagpur Incumbered Estates Act relevant to the present case. As has been already observed, the Dargguli estate was subjected to the provisions of the Act in 1894. Jadu Charan was then the proprietor of the estate and it was released to him on the 15th of May, 1909, subject to the operation of section 12-A. The first clause of that section runs as follows:—

“When the possession and enjoyment of properties is restored, under the circumstances mentioned in the first or third clause of section 12, to the person who was the holder of such property when the application under section 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 own lifetime.”

An appeal lies to the Board, of Revenue from the refusal of the Commissioner to sanction an alienation or charge. Clause (3) provides that every alienation or charge made or attempted in contravention of sub-section (1) shall be void.

The question that arises is whether the khorposh grant made by Jadu Charan in favour of Bindheshwari Charan (defendant no. 1) on the 17th November, 1909, was void for want of the sanction of the Commissioner under section 12-A. The plaintiff's contention is that the grant was void ab initio. The defence, however, is that a khorposh grant is not an alienation within the meaning of the section. According to the defence the sole object of the Act is to preserve the estate for the benefit of the members of the family and, therefore, a grant to a member of the family does not offend against the object of the statute. With this contention I am not in agreement. In my opinion, the objects of the statute is to preserve the estate for the heir, and any dealings with the property which might have the result of keeping the heir out of possession attracts the operation of section 12-A. A khorposh grant usually implies that the subject-matter of the grant will revert to the grantor or his heir only on failure of descendants of the grantee in the direct line. In the present instance the grant of 1909 purported to be a grant

“in khorposh from 1966 Sambat to Babu Sri Bindheshwari Charan Singh, my youngest son, descendible to children, generation after generation.”

Except, therefore, in the event of Bindheshwari Charan dying without issue in the lifetime of Jadu Charan the grantor and his heir were likely to be kept out of possession of the land covered by the grants for a very, considerable period.

The validity of this grant, however, was directly in issue in the suit of 1917, and the contention of the defendant in the present suit is that the decision of that issue now operates as res judicata. In that suit the trial court said that the word “alienate” is used in section 12-A

“in the sense of transfer by way of sale, gift or mortgage so as to pass the property away from the hands of the proprietor's family”;

and the Court was of opinion that this construction of the section was clear from a perusal of the Statement of Objects and Reasons prefixed to the Bill which resulted in section 12-A being added to the original Act. The Court obviously misread the Statement of Objects and Reasons for one of the objects of the Bill was stated to be to prevent disqualified proprietors from making extravagant khorposh grants.

In this appeal the defendant-respondent supports the Subordinate Judge's interpretation of section 12-A by a reference to the third sub-section of section 3. That sub-section renders the proprietor of the estate during the period of management under the Act incompetent “to mortgage, charge, lease or alienate” his immoveable property. From this it was argued that the Act itself distinguishes between alienation on the one hand and a mortgage, charge or lease, on the other, and, therefore, that the alienation prohibited by section 12-A(1)(a) is something different from a mortgage, charge, lease or a khorposh grant. Mr. Mullick's contention on behalf of the respondent was that if there he any interest in the property remaining in the grantor, there is no alienation within the meaning of the section; and that as the grantor has an interest in the reversion to a khorposh grant, it follows that such a grant is not an alienation. Following this line of reasoning he was prepared to go to the length of saying that an usufructuary mortgage of the whole estate would not offend against the provisions of section 12-A. If his contention were sound, the object of the section, namely, the preservation of the estate, could always be defeated by the execution of a mortgage or permanent rent free lease of the whole estate. I have no hesitation in holding that a khorposh grant attracts the operation of the section and requires for its validity the previous sanction of the Commissioner.

It remains, however, to consider the effect of the decision in the 1917 suit on this question. As has been already said, that was a suit between the present plaintiff Bindheshwari Charan, on the one side, and Jadu Charan, Ramdhan Charan and Jibdhan Charan, on the other. The validity of the grant of 1909 was directly in issue, and the decision was in favour of its validity. The respondents contend that this decision operates as res judicata, and that, therefore, the validity of the grant cannot now be questioned by the appellant whose, father was a party to the suit of 1917. For the appellant it was urged that the suit was in effect a collusive suit between Jadu Charan and Bindheshwari; that Ramdhan Charan was only a pro forma defendant and that in any case the decision does not bind Bindheshwari Charan. With neither of the appeallant's contention can I agree. Succession to the estate is governed by the rule of lineal primogeniture. Ramdhan was, at the time of the suit, the next heir and vitally interested in contesting the validity of the grant; he did in fact contest it in the written statement which he filed. I do not understand on what principle it is arguable that Bagheshwari Charan, who now holds the estate, is not bound by the decision obtained against his father at a time when his father was the next heir, merely on the ground that he himself was not a party to the suit. The application of the doctrine of res judicata is, however, also resisted on another ground with which I shall deal later.

With respect to the alleged collusion, the appellant urges that the suit of 1917 was merely an attempt by Jadu Charan and Bindheshwari to obtain a recognition of a grant to which the Commissioner's sanction had not been accorded. In his written statement in that suit Ramdhan alleged that the suit had been instituted by Bindheshwari Charan in collusion with Jadu Charan who was defendant no. 1 and Jibdhan Charan who was defendant no. 3. The Subordinate Judge found that no collusion had been proved. When the facts are examined it will be clear that there was no such collusiqn as to entitle the present appellant to say that the decision is not binding on him. The custom alleged by the appellant not having been proved, there would have been no bar to Jadu Charan's making a substantial khorposh grant to his youngest son had his estate not been subjected to the Chota Nagpur Incumbered Estates Act. The present appellant could not have challenged such a grant. If Jadu Charan had, with the sanction of the Commissioner, made such a grant to Bindheshwari after section 12-A became operative in his estate, Bagheshwari could not have impeached the grant. How then can Bagheshwari claim to be aggrieved merely because Jadu Charan and Bindheshwari attempted to achieve by a suit what could have been effected without a suit? I am of opinion that the alleged collusion was not such as to afford Bagheshwari an effective cause for grievance.

Reverting to the question of the operation of the doctrine of res judicata on the grant of 1909, the point for determination is whether the decision in the 1917 suit can render valid a transaction which sub-section (3) to section 12-A declares to be void. It is, true that, in a proper case, a decision on a question of law attracts the operation of the doctrine of res judicata as effectively as a decision on a question of fact. That there may be cases, however, in which a decision on a question of law does not operate as res judicata was suggested by Rankin, C.J in Tarini Charan Bhattacharya v. Kedar Nath Haldar, and there is a decision of a Division Bench of the Allahabad High Court in Manohar Lal v. Baldeo Singh which is not without bearing on the point. That was a decision under the Agra Tenancy Act of 1901. Section 194 of that Act precludes a suit for rent by one cosharer except in two instances which are not material to the present decision. The plaintiff sued for the whole rent due from the tenant-defendants in respect of the holding although admittedly there were other persons besides himself who were cosharers in the holding as proprietors. It appears that there had previously been two similar suits by the plaintiff-against the defendants and that the defendants had not pleaded section 194 in bar. In the third suit they did plead the section, but the plaintiff contended that they were debarred by the rule of res judicata from doing so. Ash worth, J., in overruling the plaintiff's contention, said: “In my opinion where the law forbids a certain thing being done in a suit no amount of failure by the defendant in the previous suit to plead the positive bar created by the legislature will prevent its being taken up in a subsequent suit”. Walsh, J., who was the other member of the Bench, contented himself with the observation that he was satisfied that there was no res judicata. A somewhat similar question has been decided in this Court with reference to section 47 of the Chota Nagpur Tenancy Act, 1908. In Rup Nath Mandal v. Jagannath Mandal an attempt was made to sell a raiyati holding in execution of a mortgage decree in spite of the prohibition contained in section 47. Objection to the sale was taken in, and allowed by the Court executing the decree, but was overruled in appeal. The decision of the appellate Court was reversed by the High Court (Kulwant Sahay and Macpherson, JJ.) Kulwant Sahay, J. said “The second part of section 47 expressly forbids the sale of the right of a raiyat in his holding in execution of any decree, and the fact that the decree under execution is a mortgage decree directing the sale of the land in question does not in any way affect the provisions of section 47 of the Act”. Macpherson, J. observed “it is altogether illegal to sell a raiyati right in land even in execution of a decree or order directing such a sale”. Then, in another case, Joy Chand Kumar v. Bhutnath Khan, section 47 was pleaded in the trial Court and overruled. The objection was again raised in the execution proceedings and overruled by the lower courts on the ground that the question was res judicata. This decision was reversed by the High Court (Kulwant Sahay and Dhavle, JJ.) who held that the judgment-debtor was not concluded by the rule of res judicata from raising the question in the execution proceedings. Now the third sub-section of section 12-A declares that an alienation or charge made without the previous sanction of the Commissioner is void, that is to say, it is void ab initio. The grant of 1909 was in my opinion still-born and the decision in the suit of 1917 could not impregnate it with life. I, therefore, hold that we are not bound to treat the grant of 1909 as valid merely by reason of the conclusion as to its validity arrived at by the learned Subordinate Judge in the 1917 suit.

With respect to the grant of schedule B lands, that is to say, the lands covered by the grant of 1920 other than the schedule A lands, the respondent's contention is as follows. He says that section 23 empowers the Courts in Chota Nagpur to entertain suits relating to claims of maintenance from any immoveable property brought under the operation of the Act; that the suit of 1917 was a suit contemplated by section 23; that the suit resulted in Bindheshwari obtaining a decree declaring him to be entitled to get as maintenance from Jadu Charan properties yielding an income of Rs. 4,000 a year; that for the purpose of assuring this income to Bindheshwari the decree directed Jadu Charan to convey to him lands of the annual value of Rs. 2,700 in addition to the lands covered by the grant of 1909, the annual value of which is Rs. 1,300. The respondent says that the decree created a charge on the estate and that the grant of 1920 was merely a carrying out of the directions given in the decree; and that the sanction of the Commissioner was not required to validate the grant. The argument is based on the assumption, that the suit of 1917 was a suit to which the provisions of section 23 applied. This, however, is a fallacy as will be apparent from an examination of this section and section 21-B. As originally enacted section 23 is as follows:

“Nothing in this Act precludes the court's in Chota Nagpur having jurisdiction in suits relating to succession to, or claims of maintenance from, any immoveable property brought under the operation of this Act, from entertaining and disposing of such suits, but to all such suits the Manager of such property shall be made a party.”

In 1909 section 21-B was introduced into the Act. That section provides that

“During the period of management”

the Manager shall be made a party to all suits and appeals by or against the holder of the estate. By the same Amending Act the words

“Subject to the provisions of section 21-B”

were prefixed to section 23. This rendered superfluous the last fifteen words of section 23 (namely, “but, to all such suits the Manager of such property shall be made a party”), and they were repealed by the same Act. From the above it is clear that section 23 applies only to certain suits instituted during the period that an estate is under management under the Act. The suit of 1917 was instituted after the estate had been released to Jadu Charan and before it was again taken under management. The suit of 1917, therefore, was not brought under section 23 of the Act but under section 9 of the Code of Civil Procedure. The only effect of the decree in that suit was to declare Bindheshwari to be entitled to obtain from Jadu Charan properties yielding an annual income of Rs. 4,000. But Jadu Charan was incompetent to give effect to the decree unless the Commissioner sanctioned a transfer or charge under section 12-A. The Commissioner has not done so, and there is no evidence that subsequent to the decree he has been asked to do so. On this part of the case the appellant referred to Thakur Khitanarain Sahi v. Surju Seth in which it was held that section 12-A is a bar to the execution sale of land belonging to a disqualified proprietor unless the Commissioner sanctions the sale. The decision in Rup Nath Mandal's case cited above is also in point; for in that case it was held that a decree directing the sale of a raiyati holding cannot override the prohibition contained in section 47 of the Chota Nagpur Tenancy Act, 1908, forbidding the sale of such a holding in execution of a decree.

The conclusion at which I have arrived is, therefore, that the appeal must be allowed, the decision of the Subordinate Judge set aside and the suits decreed with costs.

James, J.:— I agree.

Appeal allowed.