Ross, J.At some date unknown, but more than 55 years ago, the Ghatwal of Bamungawan granted lands as kharposh mukarrari jote to his brother Behari Singh. Behari Singh had three sons, Bhikhari Singh, Baijnath Singh and Abhiram Singh. It has been found as a fact that the three brothers were separate. Abhiram Singh died and his share in the mukarrari passed to the surviving brothers. Baijnath Singh sold his half share by a registered deed on the 20th Kartrick, 1321 to the plaintiff and the plaintiff brought a suit for partition by metes and bounds.

2. The defence, so far as it is now material, was that kharposh mukarrari jotes in the Santal Parganas are not saleable. The suit was dismissed by the Subordinate Judge and an appeal from his decision was also dismissed. The suit was remanded to the trial Court by the High Court for a fresh decision and was again dismissed by the Subordinate Judge and an appeal against his decision was dismissed by the District Judge.

The sole question for decision now is whether the khorposh mukarrari jote was a raiyati holding or a tenure. If it was a raiyati holding, it was not saleable; but if it was a tenure it was saleable. The Courts below have indeed gone into the question whether a khorposh grant is transferable and have relied upon Section 6, Clause (d), Transfer of Property Act, which provides that

an interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.

3. The original grant has been lost and its terms are unknown. It is, therefore, impossible to say that the property was restricted in its enjoyment to the owner personally and Section 6, Clause (d), does not conclude this question. On the other hand, the grant was confirmed on the death of the original grantee to his sons. Until resumption the grant is good; and it is, in my opinion, not open to the defendants to question the transferability of the grant.

4. The learned advocate for the appellant relies upon the entries in the khatian jamabandi of the last settlement which, according to the provisions of Section 11, Santal Parganas Settlement Regulation 1872 (Regn. 3, 1872), have the force of a decree of Court. The lands in suit are jote 148 in mauza Bamungawan. Nos. 147 and 148 are both khorposh mukarrari jotes. The mukarraridars are not entered as tenure-holders. These two numbers occur after the entries of the raiyati holdings and are followed by entries of kamat, debattar, brahmattar and jagir lands. Then come a series of numbers which are sub-numbers of 148 in which are entered the tenants of 18 bighas 18 kathas and 15 dhurs out of the 38 bighas 7 kathas and 1 dhur of the khorposh mukarrari jote, paying rent of Rs. 51-12-0.

5. The argument is that inasmuch as the khatian jamabandi is not confined to raiyati lands, the entry in this khatian jamabandi does not show that these khorposh mukarrari lands are raiyati lands; and as according to the rules of the settlement department which were in force when this entry was made in 1904 under-tenancies were not to be recorded, it must be taken that the tenants entered against the sub-numbers of 148 were raiyats and, consequently, the khorposhdar was a tenure-holder.

6. It is argued by the learned advocate on behalf of the respondents that if the tenants recorded against the sub-numbers of khata 148 had been full tenants, they ought to have had separate khata numbers of their own and if the khorposhdar was a tenure-holder he ought to have had a khewat. But these arguments are too uncertain to determine the construction of this document which must be read as a whole and when so read it fully supports the appellants construction, if the rules for the framing of the record of rights were observed.

7. The learned District Judge has traced the development of the policy of the settlement department with regard to under-raiyats, and has shown that it was only gradually that they were either raised to the status of full raiyats or were eliminated altogether. He observes that many instances are to be found in the settlement record in which both superior and under-raiyats of very old standing are recorded; and he comes to the conclusion that the rule was not strictly observed at the date of this entry, and that the entry, therefore, does not conclusively show that the tenants were full tenants and not under-tenants. He finds the view to be in agreement with the earlier documents: viz. (1) the previous settlement record (Mr. Woods settlement) in which the grantee was entered in the raiyati jamabandi with a separate list outside the jamabandi showing ten under-raiyats as under-raiyats under Behari Singh khorposhdar; (2) a petition filed during that settlement which shows that what was settled was a block of land with beri and bhita and (3) a petition filed by the successor of the grantor thirty years later during the present settlement which described the grant as nij jote lands and tenants holding therein.

8. These documents, however, cannot prevail against the entry in the settlement record if its meaning is clear. Now there can be no doubt that the document read as a whole in the light of the rules is clear and must mean that the appellant is a tenure-holder. The learned District Judge takes the view that the rule was not observed in this ease. But there is no evidence at all of this and, in my opinion, therefore, effect must be given to the record as it stands.

9.The result is that the appeal must be decreed with costs and the decrees of the District Judge and of the Subordinate Judge set aside. There will be a preliminary decree for partition of the land in suit by metes and bounds, the share of the plaintiff being one-half.

10. The Subordinate Judge will appoint a commissioner to make the partition. The plaintiff is entitled to the costs of the High Court when the suit was remanded and to the costs of both Courts for the hearing on remand. The costs will be paid by the contesting defendants.

Wort, J.

11. I agree.