Roe, J.:— These two appeals arise from a suit upon a mortgage-deed executed by the late Udit Narayan Singh securing an advance of four lacs of rupees upon the 16 annas of the Mukarrari Istamrari Estate Pergana Handwa. The defendants to the suit were Rani Keshobati Kumari and her adopted son Kumar Satya Narain Singh, and certain subsequent mortgagees. Separate defences were filed by the Rani and by the Kumar and on them the following issues were framed: 1. Is the mortgage-bond in suit genuine and was the consideration money recited therein advanced by the plaintiff to the late Rajah Udit Narain Singh? 2. Are fendants 1 and 2 or either of them estopped from pleading that the mortgaged property in Pargannah Handwa is incapable of transfer by reason of its being a ghatwali tenure? 3. Is the finding of this Court in Suit No. 363 of 1905 res judicata in regard to the question whether the mortgaged property in Pargannah Handwa is a ghatwali tenure and therefore inalienable? 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 Regulation 3 of 1872? If so, is it open to the defendant to plead that the said Udit Narayan Singh's right in the said property was that of a ghatwal? 5. Was defendant 1 recorded as Istamrari Mukararidar of the mortgaged properties in the Record of Rights framed and published under Regulation 3 of 1872 in the year 1900? If so is it open to the defendants to claim that the property is a ghatwali tenure? 6. Is the mortgaged property in said Pargannah 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 Rajah. Udit Narain Singh in the said property terminable with his life? 7. Can defendants 1 and 2 or either of them set up any right or interest to or in the mortgaged premises in derogation of the disposition, if any, contained in the will of Rajah Udit Narayan Singh? If so, whether the Rajah had any right to make any such disposition? 8. Is the bond in suit binding as against both the defendants or any of them? Should the mortgage be binding on one of the defendants, but not the other defendant, what are the rights of plaintiff? 9. Is the plaintiff's right to recover compound interest or interest exceeding the principal amount secured by the said bond barred by S. 6, Regulation 3 of 1872? 10. Is any portion of the claim for interest barred by limitation? What amount, if any, is due to the plaintiff under the said mortgage-bond? 11. To what relief or reliefs, if any, is the plaintiff entitled?

2. The learned Subordinate Judge found upon the first nine issues in favour of the plaintiffs and on issue 11, applying S. 6, Regulation 3 of 1872, made a decree for eight lacs of rupees with interest from the date of the suit. At the hearing the suit was contested only by the Kumar, the Rani having filed a petition of compromise whereby she agreed to pay the sum of eight lacs by instalments of Rs. 50,000, the first instalment to be paid in Chaitra 1320. The learned Subordinate Judge's judgment is dated 14th September, 1914. He has held that the compromise is not now binding upon the plaintiff, for the reason that Chet of the Bengal year 1320 had already passed and the promised instalment had not been paid. Against the decree made both the Rani and the Kumar appeal. I propose to deal first with the appeal of the Kumar. The finding of the lower Court upon issue 1 is now accepted. It is also admitted that no amount of the claim is barred by limitation, the date of payment being 15th July, 1910. For a consideration of the remaining issues it is necessary to give a history of Pergannah Handwa. This Pergannah is situated between Pergannah Pachite and Pergannah Lachmipur. The question whether prior to the permanent settlement it formed part of the Kharagpur Estate will be the main question for consideration. The Kharagpur Estate was held at the time of the assumption of the Dewani by the East India Company by Rajah Muzafar Ali under the Moghul Empire. The whole country was in a state of insurrection in 1774, and an armed force was sent by Warren Hastings under the command of Captain Brooke to restore order.

3. Rajah Muzafar Ali was superseded and Captain Brooke was given the powers of a Military Zilladar acting under Martial law over a tract of country then known as the Jungle Terai Mahal. Captain Brooke was succeeded by Captain Brown and in 1776 Captain Brown gave a sanad to Raja Subhao Singh, the ancestor of Udit Narain Singh. It is the defendant's case that this sanad created a ghatwali analogous to the Birbhum ghatwalis and that therefore the Raja had no alienable interest in it and the mortgage made by him was invalid as against his successor to the ghatwali. It is the plaintiff's case that in the first place the sanad does not create a ghatwali at all, and in the second place that if it did create a ghatwali, the ghatwali created was one of the Kharagpur ghatwalis, and that the great-grandfather of Udit Narain, Jagan Singh, having secured by litigation of the years 1809 to 1819 exemption from liability to miitary service under the Kharagpur Raj, there was now no bar to the alienation of the lands attaching to the tenure. It is further the plaintiff's case that in the event of our finding that the tenure is a ghatwali tenure analogous to the Birbhum tenures, the conditions of military service have either been waived by Government or have so fallen into disuse as to be no longer enforcible. The first question for consideration therefore is whether the tenure is a Ghatwali tenure at all and the second whether the appellants have succeeded in proving that the tenure is analogous to the Birbhum tenures. It is admitted on behalf of the appellants that if indeed the tenure is a Kharagpur tenure the litigation which ended in 1819 destroyed the service character of he tenure. Wherever it has been necessary for the proprietors of Pergannah Handwa to state the origin of their rights, that origin has always been asserted to be the grant made by Captain Brown. It is admitted that revenue is now paid through Kharagpur with the reservation that this is an arrangement made only for convenience of payment and that the tenure was in reality held directly under the Government. There is in Ex. (H), the judgment of the District Judge of Bhagalpur in suit No. 728 of 1910, a full statement of the claims of Jhabban Singh, the then proprietor of the Pergannah. The history of this litigation is important. The plaintiff's claim was that Parandar Singh had been under a sanad bearing the seal of the plaintiff, appointed to the post of Ghatwal of Pergannah Handwa situated within the Mahal of Kharagpur which was the zamindari of the plaintiff: that Parandar Singh had died in Chet 1215 and that on his death the plaintiff was entitled to appoint a Ghatwal in his place; that Kallan Singh had refused to admit the plaintiff's right to appoint; a Ghatwal and the matter had been taken up before the Acting Judge who had issued a Parwana to the plaintiff intimating that it was improper for the plaintiff to appoint a Ghatwal other than Jhabban Singh without instituting proceedings under the provisions of Regn. 4 of 1793, the first Code of Civil Procedure. Accordingly a suit was brought as provided by the said regulation for a declaration that the plaintiff was entitled to appoint as Ghatwal any person he might select. Jhabban Singh stated in reply that his Somi Zamindari Milkiat of Perganna Handwa had been held from the time of Raja Bijoy Singh and that Subhao Singh was the sixth holder of the office, and for several hundred years the defendant and his predecessors had been in possession, of the said zamindari; that in 1184 F.S Captain Brown Zilladar who was appointed for the purpose of making settlement of the Jungle Terai Perganna by the Hon'ble Members of the Council came to this place; that the said Subhao Singh under perpetual mukarrari pattah paid the rent to Captain Brown and subsequently to Mr. Norman and to Mr. Cleaveland up to 1187, and that when in 1188 the settlement of Mahal Kharagpur with the plaintiff was taken up the plaintiff put in an assessment dowl, that is to say an application for Goshwara Settlement with him; that the settlement of Pergannah Handwa, the Milkiat Zamindari of the defendant and that of Pergannah Chandan Passye, the Milkiat Zamindari of Rup Narayan Deo, were under the patta bearing the signature of the said Captain allowed to stand good, but subsequently the said (Saheb), in view of the fact that the country was jungli and there was danger in carrying the revenue directed the Amla of the said Raja Subhao Singh to deposit with Raja Kadar Ali (who was the son of Muzafar Ali) the land revenue due from his lands under the istamrari mukarrari patta and from there (that is from Kharagpur) the revenue becoming one item should be paid into the treasury of the East India Company and that consequently from that time Raja Subhao Singh and Raja Parandar Singh have been depositing down to 1215 F.S the rent of their zamindari property, according to the perpetual mukarrari patta and the sanad bearing the seal of the August Khalsa and granted by Mr. Dickson, the Collector.

4. The plaintiff produced various sanads and the Parwana of Captain Brown dated 5th November, 1775, and the defendant Jhabban Singh filed the following documents: (1) A taslimnama date uncertain. (2) A parwana from Mr. Tawney dated 17 Moharram 14th year, (3) A parwana of Captain Burkit, dated 16 Safir of the 8th year. (4) Another parwana by Captain Burkit date uncertain. (5) Perpetual mukarrari pattah granted by Captain Brown dated 11th September, 1776. (6) Receipts for payment of revenue direct to Captain Brown, dated 29th February, 1777, 16th June, 1777, and 13th September, 1779, and 13th September, 1780. (7) Parwana bearing English signatures, dated 1791 to 1793. (8) A sanad bearing signature in English, dated 20th January, 1794, and many other papers.

5. The finding of the Court on these papers was that in fact the predecessors of the defendant and the defendant have been from time immemorial zarnindars and istamrari mukarraridars with the title of 1 Raja of Pergannah Handwa and that up to this time they have been paying the rent of the said pergannah in accordance with the perpetual mukararri pattah, bearing the signature and the seal of Captain Brown, to the plaintiff in his capacity as the mufassal talukdar, and in his own time the defendant has been paying the rent to the authorities for the time being: that his istamrari mukarrari was never cancelled and that he has during the times of all the present and past Hakims received zamindari documents in the form of istamrari mukarrari, and finally that it does not appear that the predecessors of the aforesaid defendant have been appointed to the post of Ghatwal of the said place at the instance of the plaintiff. This decision was taken in appeal to the Provincial Court at Murshidabad. Jhabban Singh's plea is, by the Court of appeal, stated to be that in 1184 F.S Captain James Brown Zilladar who was appointed for the purpose of making settlement of pergannah Jungle Terai, had granted the istamarari mukararri patta in respect of pergannah Handwa to Raja Subhao Singh, uncle of the defendant, together with other Ghatwals who were in his ilaka and that while Hardat Singh and four of the defendants relied upon the defence set up by Jhabban Singh, the remaining defendants described themselves as the servants of Jhabban Singh's predecessors. The appellate Court called for a report from the Collector of the district of Bhagalpur with regard to the change of ghatwals and the settlement of the mahals, and on receipt of that report the Judge was directed to make an inquiry as to whether the aforesaid mahals had been the ghatwali appertaining to the zamindars of Raja Qadir Ali and of the fact that the practice was that on the death of the Ghatwal, if any person is appointed in his place, information of the same is given to the Collector and whether on the death of Raja Subhao Singh Parandar Singh was appointed as ghatwal on behalf of Raja Qadir Ali Khan, Zamindar, and whether information of the same was given to the Collector.

6. The report of the District Judge was forwarded in due course. It was then declared by the Provincial Court that Raja Qadir Ali himself admitted the fact of the disputed property being the perpetual mukarrari right of Raja Jhabban Singh and that the documents filed by the plaintiff purporting to be pattas and kabuliyats and security bonds given by Parandar Singh to Raja Mazafar Ali were not worthy of reliance, and that the report sent by the Collector upon the facts of the case was incorrect. For these reasons the judgment of the District Court was affirmed. Among the documents filed by the plaintiff was the rubkari of the Court of the Collector, dated 29th January, 1810, to the plaintiff's pleadings it was stated that a rubkari was sent to the Court of the Collector of Bhagalpur for inquiry as to the title of the zamindari of Pergannah Handwa, that the reply of the Collector to the District Judge had been that the Mahal Kharagpur together with Pergannah Handwa constituted the zamindari of the plaintiff and that the said Raja is competent to appoint ghatwals in his own zamindari. We may presume that it was this reply that was declared to be incorrect. This finding is not res judicata as between the plaintiff and the defendant now before us, but it is of interest as showing the opinion of the Courts of that date based upon a mass of documents which are not now available. The opinion however does not go so far as to say that Raja Subhao Singh was not a ghatwal at all. It says only as I understand it that he was not a ghatwal serving under Kharagpur, but held a Milkiat Zamindari independent of the Kharagpur Estate. The Judges of those days were fully aware of the distinction between a Milkiat and a subordinate “mukararri tenure,” and it is impossible to believe that they would have decided that the tenure was a milkiat tenure unless upon the documents before them they were satisfied that the estate was held directly under the ruling power. Mr. Hasan Imam contends that the real position was that the Rajas of Handwa, if indeed they were independent of Karagpur, were not Ghatwals at all, and that the Ghatwals mentioned in the sanad did not include the Handwa Raja, but ware Ghatwals holding Sikmi Ghatwalis under the Raja of Handwa. For an elucidation of this point it is necessary to examine carefully the sanad granted by Captain Brown which is Ex. (K) and the schedule attached to that sanad which is Ex. 105. In Sutherland's report, Ex. 126, is an extract from a report made by Captain Brown himself. This report is interesting as showing that Captain Brown recognised three classes of holders of land, (1) The Zamindars of the low country, (2) Chief Manjhis bound by a muchalka and holding jagir lands in the plains; and (3) Subordinate Manjhis holding Chaukis in the hills. His proposals were that the Sardars or Chiefs of Divisions should be restored to their authority and receive sanads from Government specifying the duties they were to perform and that similar engagements should be taken from the Manjhis binding them to their Sardars.

7. Police establishments should be set up in each tappa of the zamindars and the thanadars put under the control of Sazawals. His suggestions were approved by Government and a line of police posts established in Bhagalpur, Colgong, Raj Mahal, etc., to the north and east of the Jungle Terai Mahal. The jagirs given by him were approved by Mr. Cleaveland. Many of them are still in existence and have been the subject of consideration by the Judicial Committee. It is necessary in considering the real meaning of Brown's Parwana to bear carefully in mind his views of the policing of these tracts. The Parwana Ex. K is headed as follows: patta in terms of kabuliyat granted to Raja Subhao Singh, Babu Udit Singh, Gopal Singh, Babu Lal Singh and other Ghatwals of perganna Handwa appertaining to Kharagpur Jungle Terai Mahals, Sirkar Monhyr, in the Province of Bihar. The terms of the grant are that these people should pay their revenue direct to the treasury and by means of the Barkandazes, who hold jagir grants, should patrol the villages, and when called upon by Government should produce an army of seven Sardars and 300 archers and Barkandazes. Then follows the schedule Ex. 105, in which the details of the grant are set forth. Raja Subhao Singh takes five taluks with a total rent of Rs. 2,075. Udit Singh takes three talukas with a rent of Rs. 549, Gopal Singh takes two taluks with a rental of Rs. 270. Udit and Gopal are in subsequent documents specifically described as Ghatwals. The duties of Subhao Singh were precisely similar to those of Gopal and Udit and we find from Ex. (L) that Udit and Gopal were closely related to Subhao. It is clear, I think that Udit and Gopal held these lands as did Raja Subhao Singh by virtue of their descent from Bijoy Singh.

8. It is also dear from the terms of the parwana in which allusion is made to Jagirs held by Barkandazes already in existence and from the fact that all the grantees except Subhao are srecifically described as Ghatwals, that ??? Brown was not conferring a new grant, but confirming an old one, and that he was not imposing new duties, but merely stating the existing conditions upon which the tenure was already held. The Sardars mentioned as having jagirs may be taken to be the Sardars mentioned in, his report. The Barkandazes to be employed were the Barkandazes mentioned in Regn. 20 of 1817. It is to be noted that in his report to Government the word “Ghatwal” is not used. Nor in Grant's report of 1786 see Raja Lelanund Singh Bahadoor v. Government of Bengal(1) was the word Ghatwal used, but “there is no doubt”, their Lordships say,

“that the tenures here spoken of are Ghatwali tenures though they are not mentioned by that name.”

9. There is nothing in the use of the word zamindar to support Mr. Hasan Imam's contention. At the time of granting this parwana to Subhao Singh and the other Ghatwals, Brown's intention was to hold them responsible, as they had hitherto been responsible, for the perfomance by the Sardars and Barkandazes of their duties as head Manjhis and hill policemen. There were no police posts then in existence in the Zamindari Tappas. Subsequently when he submitted his whole scheme to Government he left out of account the Zamindars in whose Tappas the outpost were to be set up, and when they were set up those zamindars were exempted by Regulation 22 of 1793 from police duties. But it is most significant that to this day no outpost has been set up in Pergannah Handwa, which is still a non-police tract.

10. The parwana granted by Captain Brown received no confirmation from Mr. Cleaveland. It did receive confirmation from Mr. Cleaveland's successor. In Ex. (L) Mr. Dickson or Dickenson on the application of Parandar Singh stating that Raja Subhao Singh and other Gbatwals holding under Brown's Sanad of 1184 are dead, declares Raja Parandar Singh to be in possession of the share of his uncle Subhao Singh and of his grand-uncles Udit Narain Singh deceased and Gopal Singh (who is still living but unable to pay the rent of his taluk), and the terms of the patta are reiterated, requiring Subhao Singh and the other Gbatwals to go round each village with the Barkandaz of the village and when required by the Sirkar to appear before the Hazur with 7 Sardars and three hundred Barkandazes and pay the fixed jama of Rs. 2,701 less Saraf Rs. 59-2-0 directly into the treasury. This Parwana is inconsistent in the last two respects with that granted by Cleave-land to Raja Kader Ali, Ex. 58(1), dated 1st May and 13th May, 1781, for in the latter parwanas it is ordered that the revenue of Handwa Rs. 2,818 (not Rs. 2,641-14-0) shall be paid not directly into the treasury, but through the Raja of Kharagpur and this parwana is signed by Warren Hastings himself. Diokson's directions in this respect were again negatived by the Permanent Settlement, Ex. (60), dated 5th January, 1796, in which Pargannah Handwa is mentioned as one of the 21 Mahals upon which revenue is assessed as appertaining to Pargannah Kharagpur. In Ex. G, the general register of estates paying revenue to Government prepared under S. 2, Regn. 48 of 1793, we find Pargannah Handwa shown as paying revenue jointly with 14 other pargannahs and the name of Raja Lilanand Singh Bahadur entered as the malik. On the other hand in Ex. P. memorandum of jama of the permanent mukarrari right to the mahals in district Bhagalpur dated 1209, we find it stated that the mukarrari patta was granted after the Dewani subject to Ghatwali and reference made to Mr. Diokson's orders granting a new Sanad to Raja Parandar Singh for the taluks granted by Brown to Subhao Singh, Udit Singh and Gopal Singh.

11. It is urged by Mr. Hasan Imam that the Permanent Settlement changed—if not the character—at least the incidents of the tenure. We have, therefore, to consider firstly what were the incidents and character of the tenure before the Permanent Settlement and next whether by the Permanent Settlement its incidents and character were changed. Anistamrari mukarrari tenure was regarded as a grant made for life to an individual and on the death of the life holder the sanction of Government was necessary to validate the succession. The tenure was held at a fixed rate instead of an annual agreement. This is clear from the fact that by Regulation 1 of 1815, the Istamrari Mukarrari tenures outside the permanently settled districts were declared to be resumable on the death of the life-tenant. Captain Brown's intention was to create Subhao Singh a principal land-holder (a position which he no doubt already held) for the political purpose of guarding the frontiers on the west against the incursions of the barbarous Paharias by means of a war-like peasantry entertained as a standing militia with suitable territorial allotments under him [see Raja Lelanund Singh Bahadur v. Government of Bengal]. The office was granted to Subhao Singh personally and was resumable on his death. It was therefore necessary for Parandar Singh to report the death of Subhao Singh to Mr. Dickson and to obtain a renewal. This renewal was obtained in 1794. The position in 1794, therefore was that the Handwa Ghatwali was a Zamindari Ghatwali held directly under Government resumable at the death of the life tenant.

12. It has been the contention of the appellant's family for generations, and strongly pressed by Mr. Manuk, that the payment of revenue through Kharagpur was an arrangement made for the sake of convenience only, but on reference to the map it will be observed that Kharagpur is no nearer to Handwa than was Bhagalpur and it cannot be possible that for the sake of convenience only the revenue of Handwa should have been sent first to Kharagpur and then on to Bhagalpur. The Collector of Bhagalpur in 1813 [Raja Lelanund Sing Bahadoor v. Government of Bengal] reported to the Magistrate of Birbhum that at the time of the Decennial Settlement the Ghatwals were not treated as independent talukdars, no settlement was made with them and they were included in the settlement of the zamindar of whom their lands were held. The appellant's ancestors have however also frequently said their tenure is in all respects similar to that of Chandan Passye or Lachmipore. This also was Word's view (Ex. 63), dated 1833. The Sadar Diwani Adalat in the case of Rup Ncirayan Deo v. Baja Qadir Alee, decided in 1809, pointed out that the revenue of Chandwa Passye had been included in the revenue of Kharagpur by mistake, and suggested (a suggestion that was not adopted) that the Board of Revenue should exclude Chandwa Passye from the Revenue Roll of Kharagpur. At p. 123, Vol. 6, Moore's Indian Appeals [Raja Lelanund Sing Bahadoor v. Government of Bengal], a report of 1813 is quoted in which it is stated that the Ghatwals attached to the Kharagpur estate held their lands by virtue of sanads granted by the zamindars of Kharagpur, except some who have received theirs from the former authorities.

13. The inference is justified upon all the evidence available that, Chandwa Passye and Handwa were like Kharagpur, Birbhum and Pachit Crown Ghatwalis. They were not analogous to, the Kharagpur Ghatwalis nor to the Birbhum Ghatwalis. They were Moghul Ghatwalis. The effect of the Permanent Settlement upon military tenures was discussed in Raja Venkata Bao v. Court of Wards(2): “The provisions of the Sanad,” their Lordships say:

“differed in no respect from those which are contained in every ordinary deed of Permanent Settlement. The feudal or military tenure was at an end. The six Pergannas to which the sanad related became new zamindaria subject to the payment of fixed land revenue and subject to the ordinary stipulation and the performance of the duties ordinarily imposed upon zamindars.”

14. And their Lordships go on to quote as a correct statement Para. 11 of the written statement of that case:

“That under the Empire of the Mahomedans the ancient zamindari of Nuzvid was extensive and was governed by its Chiefs with absolute power and independence; but under the policy of the British Government the same has become divested of its military character and dwindled into a large peshkash-paying zamindari.”

15. Their Lordships therefore advise:

“Her Majesty that the lands in suit be declared to be a part of the zamindari above mentioned.”

16. And in the case of Muttu Vaduganadha Tevar v. Dora Singha Teyar(3), their Lordships say:

“In this case the Istamrar zamidar was put in his place by the Proclamation of 1801, it if to the terms of that document that we must look in order to find the quality of his estate. The Madras Government were no doubt in a position to grant out the estate on other than the old terms. The question is whether they did so.”

17. I have no hesitation in saying that in the Permanent Settlement of 1796 the Governor General did not grant all the estate created by Captain Brown's Sanad on other than the old terms. He was not dealing with Parandar Singh at all. In the case of Nilmoni Singh Deo v. Bakranath Singh(4) (at pp. 204 and 205) the following statement of the law is made:

“The Permanent Settlement of the lands did not alter the nature of the Jagir or of the tenure upon which the lands were held, nor could it convert the services which were public into private services under the zamindar. The zamindar became entitled only to the rent or revenue which was previously payable to the Government and in respect of which he was assessed, and not to the services in respect of which the ⅓rd of the rent or revenue was allowed to the tenant as compensation for the services. Those services continued to be due to the Government.”

18. This is conclusive. The Permanent Settlement might destroy a military tenure by a new contract with the holder of the tenure. It could not affect the position of a tenure-holder with whom the new settlement was not made. The case of Raja Lelanund Sing Bahadoor v. Government of Bengal is no authority for the contrary proposition. It decided only that land once assessed with revenue as a part of Kharagpur could not be resumed or re-assessed. The Handwa tenure was prior to the Dewanee a Moghul Ghatwali. The effect of assumption of jurisdiction over the Jungle Terai Mahals by the East India Company was at most to convert the allegiance of the ghatwal from an allegiance to the Moghul Empire to an allegiance to the East India Company. The Permanent Settlement did not destroy the Company's right to enforce, nor relieve Parandar Singh from liability to render, that allegiance. Nothing that has since been done has altered the position. The decision of Mr. Travers (Ex. C) that the tenure could not be resumed had no higher effect than the decision of Mr. Alexander which gave rise to the suits of Raja Lelanund Sing Bahadoor v. Government of Bengal. The descendants of Parandar Singh have never specifically refused to render services as ghatwals. Ex. E, dated the 24th December, 1816, was not such a specific, refusal. It was merely a protest by Jhabban Singh against the omission of his title of Raja in Parwanas addressed to him. The entry of the ghatwali service attached to the mahal in Ex. E still stands. So late as 1880, the Duputy Commissioner of the Santhal Pergannas (Ex. AAI) was trying with the idea of enforcing the services, as ghatwal, of the proprietor of the Handwa estate. It may be that the power to enforce these services has lapsed by limitation. That question was not argued at the Bar and could not be raised in this suit. I am satisfied that the right has not been destroyed by any definite act. Buchanan (McPherson's Settlement Report. Appendix, page 41) may have been historically correct, but he erred on 5 the point of law.

19. This by no means ends the matter. The tenure may be a ghatwali tenure. A person holding it as a ghatwali tenure might have no power to alienate it. The real question is, whether the mortgagor Udit Narayan Singh held it as a ghatwali tenure. Mr. Manuk asserts that this case is in no respect different from that of the Dhimsain Jagir in the Zemindari of Pachit dealt with in the case of Nilmoni Singh Deo v. Bakranath Singh. His revenue is payable to Government; his services are to be rendered to Government and the penalty for failure to render service is enforcible by Government. The revenue is dearly not payable to Government. It is payable to the Raja of Kharagpur. No services have been rendered to Government since 1796. There is no penalty in Captain Brown's Sanad attached to the failure to perform police duties. The only penalty suggested is that if any body lodges any complaint, then on proof of the matter after inquiry punishment will be inflicted on you; That was a condition imposed upon every zemindar prior to Regulation 22 of 1793. It is further said that he who will give had advice to others and will interfere with the affairs of Government will be held guilty and will be turned out of his ilaqa and will not be allowed to, come back. This was a penalty to be imposed not upon the grantees under the sanad, but upon any body residing within the taluk who might misbehave himself.

20. The penalty to be incurred by the Dhumsain Jagirdar was not attributable to his original sanad, but to the muchalka or security bond executed at the time of the appointment. The question decided in the case of Nilmoni Singh Deo v. Bakranath Singh was whether the mauzas in question, which had been held by the plaintiff's father during his lifetime and which at his death had descended to the plaintiff as his heir and to which the plaintiff was appointed by Government, were liable to be attached in execution of a decree against the father as assets by descent in the hands of the plaintiff, his son. In the case before us the appellant has not been appointed by Government. Mr. Imam asks us to attach importance to this and to the fact that he has given no muchalka nor kabuliyat. I would attach even greater importance to the fact that his father was not appointed by Government. His grandfather. Madho Singh was not appointed by Government. His great grandfather, Jhabban Singh, was not appointed by Government. The last appointment made by Government was that of Parandar Singh and when an attempt was made to assert the right of appointment on the decease of Parandar Singh, the Collector declined to make the appointment and the Zamindar of Kharagpur was held by the Court is not competent to do so.

21. Never since the death of Raja Parandar Singh has any proprietor of Handwa applied for a renewal of the Istamrari Mukarrari Ghatwali grant. For a hundred years no muchalka or kabuliyat undertaking military service has been given. No suggestion that the tenure was liable to military service was made until after the death of Udit Narayan Singh it became desirable to avoid paying Udit Narayan Singh's debts. On only one occasion has mutation of names even been applied for, and on that occasion mutation of names was refused (Ex. B). All that was done was that a note was made in the Register of Raja Udit Singh's application and the report made thereon. Whenever it has been necessary to prepare a list of the Ghatwali tenures of the Santhal Pergannas, Parganna Handwa has been omitted. In successive settlement reports no mention is made of any Ghatwali duties to be performed. On what basis can the appellant claim that he or his father were Ghatwals?

22. At the outset of the argument we suggested to Mr. Manuk that the real issue involved was: Did the appellant succeed to his father's estate by inheritance or by appointment. If he succeeded by inheritance as his father's representative-in-interest he was estopped from denying his father's right to alienate the estates. If he succeeded to the estate by appointment his father's interest in the estate was dead and could no longer be pursued. For this view I find support in the obiter dictum of Mookerjee, J., in Bhagwat Buksh Roy v. Sheo Pershad Sahu(5) and in the judgments of Mullick, J., and Jwala Prasad, J. (equally obiter), in the case of Jadab Lal v. Debi Lal Singh(6). I place the case before us on a different, and, as I think, a higher plane than these two cases. Udit Narayan Singh was not appointed to the post of Ghatwal. He was merely de facts holder without license from the ruling power of the lands attached to the post of Ghatwal, and as such mortgaged his light, title and interest. His son (or his wife) has succeeded by inheritance or under his will to such rights as he had. They cannot successfully impugn his title, or even ask that the question of his title be investigated. The ruling power is not a party to the suit, nor is any Ghatwal appointed by the ruling power. It is well settled that in mortgage suits the paramount title of parties other than the mortgagor or his representative-in-interest cannot be gone into.

23. The right, title and interest of Udit Narayan Singh was mortgaged, and must be sold in execution of the decree to be made on the mortgage. It is only to be regretted that the time of the lower Court and this has been so long occupied in an inquiry of merely historic interest. In view of the value of the subject-matter of the suit I deem it expedient to record briefly my findings on the several issues framed. Issue 1 was not contested in this Court. It is admitted that the mortgage bond is genuine and the consideration money advanced. On issues 2 and 6 I find that the property mortgaged by the late Udit Narain Singh was a Ghatwali tenure, not held by him as a Ghatwal. Such right, title and interest as he had therein were alienable, and did not terminato with his life. Defendants 1 and 2 would either of them be estopped as his representative-in-interest from pleading that such right, title and interest as he held were inalienable. 1 On issue 3 I find that the decision in Suit No. 363 of 1909 is not res judicata? The suit in question was one to enforce a puisne mortgage upon the same property. The present plaintiffs were defendants to the suit as prior mortgagees. The present defendants pleaded successfully that the property mortgaged was inalienable; but on the case coming to the High Court in appeal the Court of Wards, who were then in charge of the estate, obtained a withdrawal of the appeal by promising to pay the mortgage money. There was no issue contested as between the present plaintiff and the present defendants with regard to the alienability of the property. The case was not one in which the decision would be res judicata as between co-defendants. In the finally published, Record of Rights the late Raja Udit Narayan Singh was recorded as Mukarrari Istamrardar in respect of the mortgaged property in such documents as are before us. These documents relate only to the liability of the tenants to pay rent to him. The khewats have not been filed and even if they had been filed, I should hold on issue 4 that they would be evidence only of his title as proprietor and would not be conclusive with regard to a question of military duty attached to the proprietary rights. On issue 5 my finding would be the same as on issue 4. On issue 7 the question whether the Raja had any right to make dispositions of his property is covered by my discussion of the facts of the case. The right, title and interest of the late Udit Narayan Singh not being derived from the ruling power by appointment, he was at liberty to dispose of such right, title and interest as he possessed.

24. The learned Subordinate Judge has not discussed issue 8 and it was not touched in the arguments. I confess that I can see no meaning in it at all. The bond in suit is binding against whichever of the defendants is the representative-in-interest of the late Raja. That question is still sub-judice in another appeal now before us. It is conceded by the appellants that issue 9 does Dot really arise. The sole question in, whether under S. 6, Regn. 3 of 1872, the respondent is entitled to a decree for more than half the mortgage debt. The learned Subordinate Judge, while recognizing the force of S. 6, has made a decree for eight lakhs of rupees with interest from the date of the filing of the suit. This is in clear contravention of S. 6. Under O. 34 of the CPC the decree of the Court must set forth the amount due on the latest date of payment. I hold that this is the decree which is contemplated by S. 6, Regn. 3 of 1872, and that it should be decreed that the amount due on the day of payment be eight lakhs of rupees.

25. Section 6 is a bar to a decree for interest upon interest. Interest subsequent to the decree must be limited to interest on the principal advanced and the costs of the suit. Therefore on four lakhs of rupees and costs, interest will run at 6 percent, per annum. Costs both in the lower Court and in this Court will be calculated on the total amount decreed. The appellants having failed on all the important issues involved will bear their own costs in both Courts. This decision covers both issue 10 and issue 11. This decision disposes of Appeal No. 89. Mr. Naresh Chandra Sinha argued that the decree could not bear interest at all, but in course of the arguments conceded that part of the decree relating to interest on the original principal could not be assailed. His position with regard to the compromise filed was that his inability to pay the instalments promised was due to the fact that the estate was in the hands of the receiver, and that in view of the dispute regarding title to the estate he was unable to obtain from the receiver the sums necessary to pay the first instalment. It is immaterial by what causes the compromise became in fructuous. The learned Subordinate Judge was correct in saying that it has become infructuous and cannot be acted upon. The parties will therefore be relegated to their former positions and the considerations which cover the decision of the appeal of the Kumar cover also the position of the Rani, The decree which I propose will be of effect as against the representative-in interest of the late Raja Udit Narayan Singh, whether that representative-in-interest be the Kumar or the Rani.

V.S/R.K

26. Appeals dismissed.