Judgement Appeal (No. 59 of 1934) from a decree of the High Court 1 (July 29, 1932) reversing a decree of the Additional Subordinate Judge of Hazaribagh (March 31, 1928). On November 17, 1909, Jadu Charan Singh, the owner of an impartible estate which had shortly before been released from management under the Chota Nagpur Encumbered Estates Act, 1876, executed a maintenance grant in favour of the appellant, his son, yielding an annual income of Rs.1300. The sanction of the Commissioner under the Act to that grant was not obtained. On September 21, 1917, the appellant, having attained his majority, instituted a suit against his father and his (the appellants) two brothers claiming a maintenance grant, inclusive of that of 1909, of the yearly value of Rs.4000. The Subordinate Judge decreed the suit and declared that the grant of 1909 was " legally valid " and decreed and ordered that the appellant was entitled to the maintenance grant as prayed. In implement of that order Jadu Charan Singh executed a maintenance grant dated February 21, 1920. The respondent, Jadus grandson and successor, instituted the present suit on May 14, 1926, claiming a declaration that the two maintenance grants of 1909 and 1920 were illegal and invalid and not binding on him. The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee. The Subordinate Judge held that the decision in the 1917 suit that the 1909 grant was valid and that the appellant was entitled to maintenance of Rs.4000 a year operated as res judicata for the purposes of the present suit. He held that the 1909 grant was valid, and that the 1920 grant, being made in obedience to a decree of the Court, was also valid. Upon appeal to the High Court the learned judges (James and Agarwala JJ.) held that the grants were alienations within the meaning of s. 12A of the Chota Nagpur Encumbered Estates Act, 1876 ; that the 1909 grant, in the absence of the Commissioners sanction, was still-born, and that the decision in the 1917 suit could not infuse it with life, and that the decision in the 1917 suit did not therefore operate as res judicata. The Court also held that Jadu Charan was; incompetent to give effect to the decree of 1917 unless the Commissioner sanctioned a transfer under s. 12A of the Act. The Court also held that Jadu Charan was; incompetent to give effect to the decree of 1917 unless the Commissioner sanctioned a transfer under s. 12A of the Act. The appeal is reported at ( 1933) I. L. R. 12 Pat. 147. 1935. Oct. 24, 25. Pringle for the appellant. [Reference was made to ss. 2, 3, 7,12, 12A, 21B, and 23 of the Chota Nagpur Encumbered Estates Act, 1876.] The Court which heard the 1917 suit had jurisdiction either under s. 23 or under the general law. Except in respect of the two classes of suits mentioned in s. 12A of the Act the ordinary civil Courts have jurisdiction to entertain suits brought against the holder of an estate on its restoration to him ; the judgment in the 1917 suit therefore being a judgment by a Court having jurisdiction cannot be treated as a nullity and binds the respondent until set aside in appropriate proceedings. The respondent is now barred by limitation from instituting such proceedings. Moreover, there are concurrent findings below that the decree in that suit was not collusive. The 1920 grant being made in obedience to the 1917 decree lies outside the purview of s. 12A and requires no sanction of the Commissioner to give it effect. The authorities relied on in the Law. Rep. 63 Ind. App. 53 ( 1935- 1936) Bindeswari C haran Singh V. Bageshwari C haran Singh 163 High Courts judgment, properly understood, do not support it. Dunne K.C. and Wallach for the respondent. The validity of the first grant may be res judicata by reason of the judgment in the 1917 suit. But that judgment does not make the validity of the second grant res judicata, as by it the appellants maintenance was not charged on any specific property. No such charge could be created except with the sanction of the Commissioner as provided in s. 12A. Moreover, the decree in the 1917 suit was collusive. The respondents suit was not time-barred. Nov. 18. The judgment of their Lordships was delivered by LORD THANKERTON. This is an appeal from a decree of the High Court of Judicature at Patna, dated July 29, 1932, which reversed a decree of the Additional Subordinate Judge of Hazaribagh, dated March 31, 1928, and decreed the plaintiff- respondents suit with costs. The respondents suit was not time-barred. Nov. 18. The judgment of their Lordships was delivered by LORD THANKERTON. This is an appeal from a decree of the High Court of Judicature at Patna, dated July 29, 1932, which reversed a decree of the Additional Subordinate Judge of Hazaribagh, dated March 31, 1928, and decreed the plaintiff- respondents suit with costs. The following pedigree shows the relationship of the parties— Senior wife = Thakur Jadu Charan Singh, = Junior wife | died Feb. 21, 1924 | | | | Babu Ramdhan Jibdan Charan Bindeshwari Charan Charan Singh (eldest Singh Singh son), died Jan. 30, (Defendant-Appellan 1920 t), | | 40 Thakur Bageshwari Charan Singh (Plaintiff-Respondent ). Thakur Jadu Charan Singh was the owner of an impartible estate in the District of Hazaribagh. On his death intestate in 1924 the respondent succeeded to the estate, his father having died in 1920. The management of the estate was vested in a manager appointed under s. 2 of the Chota Nagpur Encumbered Estates Act (VI. of 1876) from 1894 until May 15, 1909, when it was released and made over again to Jadu Charan, in accordance with the provisions of the Act. The estate was again vested in a manager under the Act on July 24, 1921, and it is still under management. On November 17, 1909, Jadu Charan executed a maintenance grant in favour of the appellant, transferring to him villages and lands yielding an annual income of Rs.1300. Doubt being entertained whether, in view of the provisions of s. 12A of the Act, the sanction of the Commissioner to the grant should have been obtained, the appellant, on March 4, 1916, sought the sanction of the Commissioner, but this was refused by an order dated April 26, 1916. Sect. 12A provides as follows — "12A.—(1) When the possession and enjoyment of property is restored, under the circumstances mentioned in the first or the third clause of s. 12, to the person who was the holder of such property Law. Rep. 63 Ind. App. 53 ( 1935- 1936) Bindeswari C haran Singh V. Bageshwari C haran Singh 164 when the application under s. 2 was made, such person shall not be competent, without the previous sanction of the Commissioner— (a) to alienate such property, or any part thereof, in any way, or (b) to create any charge thereon extending beyond his lifetime. App. 53 ( 1935- 1936) Bindeswari C haran Singh V. Bageshwari C haran Singh 164 when the application under s. 2 was made, such person shall not be competent, without the previous sanction of the Commissioner— (a) to alienate such property, or any part thereof, in any way, or (b) to create any charge thereon extending beyond his lifetime. (2.) If the Commissioner refuses to sanction any such alienation or charge, an appeal shall lie to the Board of Revenue, whose decision shall be final. (3.) Every alienation and charge made or attempted in contravention of sub-s. 1 shall be void." The present appellant, having attained majority on September 4, 1917, instituted suit No. 117 of 1917 in the Court of the Subordinate Judge of Hazaribagh against Jadu Charan and his brothers Ramdhan and Jibdhan, claiming a maintenance grant of the yearly value of Rs.4000—he being already in possession under the grant of 1909 of properties yielding an income of Rs.1200 in cash and Rs.100 in kind—and maintaining that the sanction of the Commissioner was not necessary. All three defendants filed written statements, the present respondents father, in particular, contesting the suit. On November 12, 1919, the Subordinate Judge decreed the suit and ordered and decreed that " it be declared that the plaintiff is entitled to get as maintenance grant from the defendant No. 1 properties yielding an income of Rs.3500 in cash and Rs.500 in kind annually, and it be further declared that the grant made to the plaintiff by his father on Kartik Sudi 5, 1966 S. is legally valid, and after leaving out the khorposh properties so obtained by the plaintiff, he do get additional properties in maintenance from the defendant No. 1 yielding an annual income of Rs.2300 in cash and Rs.400 in kind." Defendant No. 2, the present respondents father, who had not appeared at the trial, applied for a rehearing under Order ix., r. 13, of the Code of Civil Procedure, but the application was rejected. On February 21, 1920, Jadu Charan, defendant No. 1, in implement of the order of the Court, executed and registered a maintenance grant to the present appellant of further properties yielding an income of Rs.2300 in cash and Rs.400 in kind. This grant was filed in Court and entered, as satisfaction of the liability of defendant No. I, on February 27, 1920. This grant was filed in Court and entered, as satisfaction of the liability of defendant No. I, on February 27, 1920. The respondents father having died on January 30, 1920, the respondent became the owner of the impartible estate, which again came under the Encumbered Estates Act on July 24, 1921. The respondent instituted the present suit, through his representative and next friend, the manager of the estate, on May 14, 1926, and impleaded as defendants the appellant and the mortgagee of some of the properties in suit. In the plaint the respondent asked for a declaration that the two maintenance grants of 1909 and 1920 are illegal and invalid and not binding on him, and asked for possession and mesne profits. The suit was defended by the appellant, and the following issues, settled in the suit, are relevant to this appeal— "4. Are the judgment and decree passed in suit No. 117 of 1917 collusive ? 1. 5. Are (sic) the findings in suit No. 117 of 1917 of the Subordinate Judge of Hazaribagh operate as res judicata in the present suit ? 2. 7. Are the grants dated November 17, 1909 (Kartik Sudi 5 of 1966 Sambat) and dated February 21, 1920, affected by s. 12A of the Encumbered Estates Act ? " Although the question of collusion is maintained in the respondents case, it could not be seriously Law. Rep. 63 Ind. App. 53 ( 1935- 1936) Bindeswari C haran Singh V. Bageshwari C haran Singh 165 pressed in view of the concurrent findings of the Courts below, but their Lordships desire to point out that collusion is not the appropriate term to apply to the obtaining of a decree by a fraud on the Court; the terms of the issue suggest that the Court was implicated in the matter. The learned Subordinate Judge held that the findings in the suit of 1917 did operate as res judicata and that, in accordance therewith, s. 12A did not affect the grant of 1909 or the grant of 1920, as the latter was executed by way of carrying out the order in the judgment and decree in that suit. He therefore dismissed the present suit. He therefore dismissed the present suit. On appeal, this decision was reversed by the High Court, for reasons which render it convenient to restate the provisions of s. n of the Code of Civil Procedure—namely "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” The judgment of the High Court was delivered by Agarwala J., with whom James J. concurred, and, with reference to the 1909 grant, it appears to their Lordships that the learned judges have disregarded the express prohibition of s. 11. They clearly hold that the question of the validity of the 1909 grant in view of s. 12a of the Encumbered Estates Act was directly and substantially in issue and was decided in the 1917 suit, and that the similarity of the parties satisfied the condition of s. 11 of the Code, but Agarwala J. then states " 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-s. 3 to s. 12A declares to be void.....Now the third sub-section of s. 12A 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. Truly the third sub-section of s. 12A renders void any transaction to which it is applicable, but the question whether it applies to a particular transaction entitles the Court to consider the construction of the section, and the determination of its applicability rests with the Court. Truly the third sub-section of s. 12A renders void any transaction to which it is applicable, but the question whether it applies to a particular transaction entitles the Court to consider the construction of the section, and the determination of its applicability rests with the Court. The decision of the Court in the suit of 1917 determined that the section had never applied to the transaction of 1909, and it is difficult to follow the reasoning of the learned judge which allowed him, not only to express a strong contrary view as to the applicability of the section, which he was entitled to do, if he so chose, but to try anew the issue as to its applicability—in face of the express prohibition in s. 11 of the Code. In support of his view, the learned judge refers to the opinion of Sir George Rankin, then Chief Justice, in Tarini Char an Bhattacharya v. Kedar Nath Haldar (( 1928) I. L. R. 56 C. 723, 736.) and to certain other cases, but these lend no support to the reasoning of the learned judge. With regard to the 1920 grant, the learned judge, taking the view—rightly, as their Lordships think—that the suit of 1917 was brought under the Code of Civil Procedure, states " The only effect of the decree in that suit was to declare the appellant to be entitled to obtain from Jadu Charan properties yielding an annual income of Rs.4000. But Jadu Charan was incompetent to give effect to the decree unless the Commissioner sanctioned a transfer or charge under s. 12A." It is not clear how far this view is based on the learned judges opinion as to the 1909 grant, but, in any event, their Lordships are clearly of opinion that the learned Subordinate Judge was right on this point, and that the decision in the suit as to the construction of s. 12a is res judicata as to the validity of the grant of 1920 which was made in fulfilment of the obligations of that decision. Law. Rep. 63 Ind. App. Law. Rep. 63 Ind. App. 53 ( 1935- 1936) Bindeswari C haran Singh V. Bageshwari C haran Singh 166 Their Lordships are therefore of opinion that, in view of the decision in the suit of 1917, it is not open to the respondent to challenge the validity of the grants of 1909 and 1920, and that they are binding on him, and they will accordingly humbly advise His Majesty that the appeal should be allowed, that the judgment and decree of the High Court should be set aside, and that the judgment and decree of the Additional Subordinate Judge of Hazaribagh should be restored. The respondent will pay to the appellant his costs of this appeal and in the High Court.