Manohar Lall, J.This is an appeal by the principal defendant against the decision of the learned Subordinate Judge of Daltonganj dated 10th February 1936 by which he decreed the suit of the plaintiffs which was instituted to recover the dues on a mortgage bond dated 21st October 1927 executed by the defendant Parmeshwar Dayal Singh in favour of plaintiff 1 for Rs. 4250 along with interest at the rate stated in the bond. The defence to the action was that the loan was contracted for purposes not binding upon the joint family of the defendants, that the bond was invalid and for no consideration and that the rate of interest was excessive. The learned Subordinate Judge decided all the issues in favour of the plaintiffs and these findings were not challenged before us. Another defence raised was that the bond in suit was void in view of the provisions of Section 12-A, Chota Nagpur Encumbered Estates Act, but the learned Subordinate Judge repelled that objection also and this was the main contention ad. vanced before us on behalf of the appellant.

2. In order to understand this objection it is necessary to state that the family of the defendants was at one time a joint Hindu family governed by the Mitakshara School of Hindu law descending from one Saligram Singh who had two sons, Nageshwar and Parmeshwar (defendant 1). Nageshwar was the father of Chandrika (defendant 3), of Bhagwat (defendant 4) and of Lal Bahadur (defendant 5). The appellant Parmeshwar Dayal is the father of Rameshwar Dayal (defendant 2). Defendants 6, 7 and 8 are the sons of Chandrika, Bhagwat and Lai Bahadur respectively. In the year 1894 Nageshwar Dayal, the father of defendant 3 and brother of the appellant, made an application to the proper authorities for the assumption by the Encrimbered Estate of the Namudag Estate belonging to the joint family of Nageshwar and Parmeshwar and their descendants. On 10th December 1894, by a notification (Ex. A) the Namudag Estate was placed in charge of the Deputy Commissioner of the Palamau District under the provisions of Section 2, Chota Nagpur Encumbered Estates Act (6 of 1876)(hereinafter to be referred to as the Act.) The Notification describes the name of the property as Namudag Estate and the name of the holder is stated therein as Nageshwar Dayal Singh. Nageshwar Dayal at that time, as the evidence discloses, was the karta of the joint Hindu family consisting of Nageshwar, Parmeshwar and their sons about whom the evidence is not clear as to which of these other than Chandrika (defendant 3) were not born at that time; but that is not material for the purpose of this case.

3. Nageshwar Dayal died in 1895 but the Namudag Estate continued to be managed under the Encumbered Estates Act until it was released on 26th August 1910 by a notification (Ex. A-1) and handed over to Parmeshwar Dayal, defendant 1, and Chandrika, defendant 3. On 15th February 1920 Chandrika and Parmesh war executed a mortgage bond in favour of the respondent giving as security a portion of the Namudag Estate which had been released to them in 1910. This transaction forms the subject of Second Appeal No. 722 of 1934 and will be considered later. In the year 1922 a partition was effected between the two branches of Nageshwar and Parmeshwar. After this partition the mortgage bond in suit was executed by Parmeshwar alone; the total amount advanoed was made up of the half share of Parmesh. war in the dues under the mortgage bond of February 1920 and some other advances which were made to him by the plaintiff on handnotes and orally. These facts have been amply proved in this case and were not seriously challenged by either side.

4. The question which arises is whether upon these facts the provisions of Section 12-A operate to make the mortgage bond in suit invalid because it is admitted that the mortgage bond was executed without the sanction of the Commissioner as required by that provision in the Act. The learned Subordinate Judge held that the holder who made over charge of the estate to the Encumbered Estate in 1894 was Nageshwar and that the disqualification which is provided in Section 12-A extended only to that holder and not to the heirs of the holder. The learned advocate for the respondents adopted this view of the learned Subordinate Judge and further submitted that by virtue of the partition of 1922, the estate which was given as security under the mortgage bond in suit was now a different estate from that which was taken over charge in 1894, but this in my opinion is a wholly untenable contention. If a disqualification attaches in law to the alienation of the entire estate as it existed in 1894, a subsequent partition after the release of the estate can in no way get rid of that superimposed disqualification. It was also argued that a creditor is not required to look beyond the notification assuming charge of the estate and the notification which released the estate, and submitted that the creditor should be held to be amply protected, for, by reference to the notification of 1894, he found that the holder who gave the estate in charge of the Encumbered Estate was Nageshwar and the notification of 1910 showed that the persons to whom the estate has been released were different from the holder and therefore it is argued that by virtue of Section 12-A(vi) the only hindrance in the way of these persons who have been restored to possession is that the debt for which the alienation may be made should not be with respect to a period during which the authorities were in charge.

6. In my opinion the crucial point to deter, mine in the present case is whether the holder who made over charge of the estate in 1894 was Nageshwar Dayal only or whether it was the entire joint Hindu family consisting of Nageshwar, Parmeshwar, Nageshwars son Chandrika and others. The evidence in the present case discloses that Nageshwar and Parmeshwar were to and Nageshwar Dayal was the karta at the time when the estate went under the management of the Encumbered Estate and of his sons Chandrika at least was then alive. The defendants had specifically pleaded in the written statement that Parmeshwar and Nageshwar were persons of extravagant habits and were about to squander away the ancestral property of the family when the Government took away the property from the hands of the then members of the family and that Nageshwar was the karta. The evidence is to the same effect (see witness 1 for the defendants who was not cross-examined On this point). It seems to be established therefore that on the date when the authorities assumed charge the Namudag Estate belonged to Nageshwar, Parmeshwar and Chandrika as members of a joint Hindu family governed by the Mitakshara School of Hindu law.

7. Again the estate when it was released was made over not to the heir of Nageshwar only but to Nageshwars heir Chandrika and to Nageshwars brother Parmeshwar, showing that the estate was released to these persons as members of a joint Hindu family who were the then owners of the estate. In these circumstances, I must construe the two notifications as indicating that the property referred to in the notification, namely the Namudag Estate, must be deemed to have been the immovable property which constituted the ancestral estate of the joint family of which Nageshwar was the karta and which was under his management. It was that ancestral property which it had been proposed by the karta should be taken under the superintendence of the authorities so that the liabilities of the family should be liquidated. This view is in accord with the decision of their Lordships of the Privy Council in the case in Gulab Singh v. Raja Seth Gokuldas (1913) 40 Cal. 784. In that case upon the application of Maharaja Singh and Dull Chand who were brothers and were the senior and managing members of a joint Hindu family governed by the School of Mitakshara along with their sons, the property was taken charge of by the Court of Wards and it was contended that the Court of Wards must be assumed to have taken possession only of the unascertained and unpartitioned shares in the joint family property of the applicants Maharaj Singh and Duli Chand only. But their Lordships of the Judicial Committee repelled the argument and held that

the property referred to in that notification (similar to the notification in the present case), must, in their Lordships opinion be deemed to have been of the immovable property which constituted the ancestral estate of the joint family which was under the management of Maharaj Singh and Dull Chand and was referred to in their application. It was that ancestral "property which it had been proposed by the Deputy Commissioner should be taken under the superintendence of the Court of Wards until the liabilities of the family should be liquidated.

8. I therefore have no hesitation in holding that the prohibition u/s 12-A applies in the present case not only to Nageshwar but also to Parmeshwar and Chandrika who were the owners of the property at the time when the authorities assumed charge on the application of Nageshwar who must be assumed to be acting as a karta with the implied authority of the other members to place the property belonging to himself, Parmeshwar, Chandrika and others who were then alive for the benefit of the joint family. When the property was released in 1910 to Parmeshwar and Chandrika the bar u/s 12-A remained operative against these two at least and any subsequent partition in 1922 could not operate to remove that bar. The conclusion which I have arrived at is that the mortgage bond in suit executed by Parmeshwar in favour of the plaintiff-respondents cannot be enforced so as to affect the property, a portion of the Namudag Estate, as the transaction was entered into without the sanction of the Commissioner.

9. Mr. Section M. Mullick appearing on behalf of the respondents argued that there is no definition of the word "holder" in the Encumbered Estates Act and therefore he contended that it must mean only a single person in possession at the time and that we have no power to read beyond the notification and must assume that the holder of the estate was Nageshwar only and nobody else. He also argued that a joint Mitakshara Hindu family can never be a holder within the meaning of the word "holder" used in the Act. I do not agree with this contention. In my opinion the word "holder" is expressly used to mean a land holder who has a title to the property in question as owner in possession. It is a compendious way of describing the proprietors or the owners of the estate which is going to be assumed charge of. It comprises every sort of proprietor irrespective of his personal law whether he is a Christian or a Mahomedan or is governed by the Dayabhag or Mitakshara School of Hindu law. In each case, therefore, it will have to be decided whether the owner who had made over charge of the estate has placed only his share of the estate in charge of the Court of Wards or whether he, as representing the entire owners, has induced the authorities to take over the whole of the estate of the joint family or of the other co-owners also under their superintendence. As was pointed out by their Lordships of the Judicial Committee in the case referred to above, it is impossible to hold that an undivided interest in a joint Mitakshara Hindu family can be dealt with or was intended to be transferred to the Court of Wards. Just as their Lordships decided in that case it must be decided in the present case after construing the two notifications (Exs. A and A-1) in the light of the circumstances that the entire Namudag Estate, belonging to a joint Hindu family of which Nageshwar was the karta along with Parmeshwar and Chandrika, was intended to be taken possession of by the authorities with the express request of the karta and with the implied consent of the other members including Parmeshwar and Chandrika, in the interest and for the benefit of the entire joint Hindu family.

10. The due date for the payment of the mortgage dues under the mortgage bond (Ex. 8) is 27th November 1928. The present suit has been instituted on 17th November 1934, that is, within six years thereof. The plaintiff-respondents are, therefore, entitled to a personal decree for the amount due under this mortgage bond which cannot be enforced as a mortgage bond. The plaintiffs, will be entitled to a decree for the amount as fixed by the learned Subordinate Judge and the same will carry interest at 6 per cent, per annum from 9th August 1936 till the date of realization. We were asked to apply the provisions of Sections 9,10 and 11, Bihar Money. Lenders Act, 1938, but in view of a recent Full Bench decision of this Court reported in Sadanand Jha v. Aman Khan A.I.R (1939) . Pat. 55, the argument must be overruled; the appellant, however is entitled to a certificate that this appeal is fit to be taken to the Federal Court as it involves a construction of certain Sections of the Government of India Act, 11935. I would therefore partly [allow the appeal and pass a money decree, instead of a mortgage decree, for the amount as stated above. The respondents; are entitled to the costs of the Court below and to half the costs of this Court.

Second Appeal No. 722 of 1934.

11. This appeal relates to the enforcement of the mortgage bond of 15th February 1920 executed by Chandrika and Parmeshwar against a portion of the.) Namudag estate. The only question which arises for consideration is whether by the provisions of Section 12-A of the Act the plaintiffs are precluded from enforcing the mortgage bond. The learned Munsif held that the mortgage bond was executed for legal necessity and for consideration. As to the objection u/s 12-A, he held that the property that Nageshwar Prasad was holding at the time when the estate was taken charge of by the authorities was the ancestral property. He held further that Parmeshwar and Nageshwar were governed by the Mitakshara School of Hindu law, that Chandrika was born before the estate was taken charge of by the Encumbered Estates authorities and that Nageshwar Dayal was the head member of the family and was in charge of the estate when the estate was vested in the hands of the Encumbered Estates officials. He, therefore, came to the conclusion that Section 12-A was an obstacle in the way of the plaintiffs enforcing the mortgage which was given without the sanction of the Commissioner. On appeal, the learned Judicial Commissioner came to the same conclusion.

12. It is unnecessary to repeat the arguments which were considered by me at length in First Appeal No. 140 of 1936, which was heard along with this second appeal. For the same reasons I hold that Section 12-A prevents the enforcement of the mortgage given by Chandrika and Parmeshwar in 1920, because Chandrika, Parmeshwar and Nageshwar must be held to have made over the property to the authorities in 1894 when they were the holders of the estate within the meaning of the Chota Nagpur Encumbered Estates Act and that they were the persons to whom the property was released in 1910. The decision of the Courts below is correct and the plaintiffs are not entitled to a mortgage decree.

13. It was then argued that the plaintiffs should be given a personal decree, but the suit has admittedly been filed more than six years after the due date as was pointed out by the learned Munsif at page 10. To overcome this difficulty, it was submitted that in 1335 corresponding to 1928 there was an agreement by which defendant 7, Parmeshwar Dayal, was absolved from all liabilities under the bond and this was said to constitute an acknowledgment by Chandrika of his liabilities within the meaning of Sections 19 and 20, Limitation Act. This matter was put in this way. On 21st October 1927, Parmeshwar Dayal executed a mortgage bond which was the subject of consideration in First Appeal No. 140 of 1936 by which he was absolved from all liabilities under the mortgage bond of February 1920, the bond under consideration in the present appeal in which both he and Chandrika were liable. It was stated there, fore that the execution of the mortgage bond in October 1927 by Parmeshwar amounted to an acknowledgment of the liability under the bond of 1920 on behalf of Chandrika also.

14. I am unable to agree with this argument. On the date of the so called acknowledgment Chandrika and Parmeshwar were admittedly separate and Parmeshwar was absolving himself from all liabilities under the bond of 1920 by entering into a fresh transaction with the plaintiffs in October 1927; in other words, on that date he was erasing his liability under the first bond. This cannot mean an acknowledgment of the liability under the first bond by, or on behalf of, Chandrika. Chandrika never made any acknowledgment of his liability under the bond of 1920 in October 1927.

15. It has been decided in this Court that an acknowledgment of liability by a co-mortgagor will ordinarily give a fresh start of the period of limitation against the mortgagor who acknowledges the same: see Sarab Narain Das v. Top Ojha A.I.R (1918) . Pat. 646, I am aware that a contrary view has been taken, for instance, in Muthu Chettiar v. Muhammad Hussain A.I.R (1920). Mad. 418, Achola Sundari Debi v. Doman Sundari Debi A.I.R (1926). Cal. 150 and Ibrahim and Another Vs. Jagdish Prasad ; but these oases can be distinguished on the ground that in the circumstances thereof the mortgagor who was making the acknowledgment must be held to have made it as agent of the other co-mortgagors within the meaning of Section 21, Limitation Act, but in the circumstances of the present case Parmeshwar was never making the acknowledgment on behalf of Ghandrika. He was expressly putting an end to his own liabilities on the mortgage bond of 1920. I therefore hold that the plaintiffs are not entitled even to a money decree in the present case. The appeal of the plain, tiffs therefore fails and is dismissed but without costs.

Fazl Ali J.

16. The principal question which has to be decided in these appeals may be formulated as follows: When an estate is placed under the management of the Collector or some other officer under the provisions of the Encumbered Estates Act upon the application of a person who is the karta of a joint Hindu family governed by the law of Mitakshara, such person being described as a "holder" in the notification issued u/s 2 of the Act, whether the disqualification referred to in Section 12-A of the Act applies only to that person or to all the members of the joint family who were the owners of the estate on the date of the application. Section 12-A provides that when the possession and enjoyment of property is restored to the person who was the holder of such property when the application u/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.

In the present case the Namudag estate was placed under the Encumbered Estates management in 1894 upon the application of Nageshwar Dayal who is now dead, and its possession was restored in 1910 to Nageshwars brother Parmeshwar Dayal, his son Chandrika and certain other members of his family. It is well settled that the disqualification contained in Section 12-A does not apply to the heir of the holder, because he was not the holder of the estate.

17. When the application u/s 2 was made. There is however no direct authority to show whether it would or would not apply to the members of a joint family other than the person on whose application protection was given under the Act to the estate held by the joint family and who was described as a holder in the proceedings taken under the Act. It is contended on behalf of the plaintiffs that as Nageshwar alone was described as a holder in the notification of 1895, Parmeshwar and Chandrika were entitled to mortgage the property to them without the previous sanction of the Commissioner. The defendants, on the other hand, contend that the disqualification referred to in Section 12-A extends to these persons also, as they were no less holders of the estate than Nageshwar and as Nageshwar had acted only as a representative of the entire join t family, when he moved the authorities to take charge of the estate under the provisions of the Act.

18. The expression, "holder" has not been defined in the Act, but there can be no doubt that it is used in the same sense as the expression holder of land" which occurs in the Preamble to the Act and as such would apply to all such person or persons as own any particular property. Therefore the description of Nageshwar as a holder in the notification (Ex. A) is by no means conclusive to show that he alone was the holder. As he was the karta of the family, it is evident that this description was given to him in the notification only in a representative capacity and must be held to apply to the etatire family. From this it follows that the disqualification laid down in Section 12-A applied not only to Nageshwar but to the entire body of persons who were the holders of the Namudag Estate in 1895. It was Contended on behalf of the plaintiffs that the intention of Section 12-A is to disqualify only that particular person from alienating or encumbering the properties of the estate after release from the Encumbered Estates management whose negligence and extravagance had put the estate in jeopardy at the time when the Act was applied. This contention is to some extent supported by the following words which occur in Sub-clause (ii) of Section 2 of the Act,

such Deputy Commissioner is satisfied, after making such inquiry as to may think fit, and after considering and placing on record all representations if any made by such holder, that such holder has entered upon a course of wasteful extravagance likely to dissipate his property.

19. Now Section 2 provides that an application to the Commissioner under the Act may be made by (a) any holder of immovable property, (b) when such holder is a minor or of unsound mind or an idiot by his guardian, committee or other legal curator or the person who would be the heir to such holder if he died intestate and (c) by the Deputy Commissioner. Sub-clause (ii) of the Section which refers to the extravagance of the holder applies only when the application is made by the Deputy Commissioner. In the case of other applicants all that the Section requires is that it should be stated in the application that the holder of the property is subject to, or that his property is charged with debts or liabilities other than debts due or liabilities incurred, to Government. There is nothing in the Act to prevent the manager of a joint family from applying for protection under the Act on behalf of the entire family and where such an application is made by him in a representative capacity, the whole family and not he alone will be deemed to be the holder of the estate. There is also nothing in the Act to suggest that a Mitakshara joint family is not entitled to protection under the Act.

20. The following observations made by the Judicial Committee in Gulab Singh v. Raja Seth Gokuldas (1913) 40 Cal. 784 seem to me to support the view expressed by my learned brother and myself:

It appears to their Lordships to be obvious that the intention of Maharajsingh and Dulichand in making that application was that the Court of Wards should in the interest of all the members of the joint family assume the superintendence of the immovable property which was the ancestral property of the joint family, and not merely the management and superintendence of the then unascertained and unpartitioned shares in the joint property which on a partition of that property, not then in contemplation, might possibly come to Maharajsing and Dulichand. Neither Maharajsingh nor Dulichand had more than the mere coparcenary interest of a member of the joint family in the family property. Neither of them had any defined shares. It was held by this Board in Gharib-ul-lah v. Khalak Singh (1903) 25 All. 407, that the interest of an undivided Mitakshara family in the family property is not individual property. It had previously been held by this Board in Appoviar v. Ramasubba Aiyan (1866) 11 M.I.A. 75, that no member of a joint Hindu family whilst it remains undivided, can predicate of the joint or undivided property that he has a certain definite share. It has not been shewn to their Lordships that it was the practice of the Court of Wards of the Cintral Provinces to assume the superintendence of the unpartitioned interest of some only of the members of a joint Hindu family in the family property, nor has it been explained in this appeal how a joint family property could be preserved for the members of a joint family by a Court of Wards assuming the superintendence of the unpartitioned interests of some only of the members of the family. Under the circumstances of the family, Maharajsingh and Dulichand acted prudently and in the best interst of the joint family in applying to the Deputy Commissioner of Hoshangabad to have the family property taden under the management of the Court of Wards, and in their Lordships opinion Maharajsingh and Dulichand in making that application acted with in their powers ahd authority as the managing members of the joint family.

21. There can be no doubt that in the present case Nageshwar had asked for the protection of the entire estate and not only his unascertained and unpartitioned share in it. In my opinion therefore the disqualification set out in Section 12-A applies to the executants of the mortgage bonds in suit and that being so, no mortgage decree can be passed in favour of the plaintiffs. At the same time as was held by this Court in Bhaiya Balmukund Sahay v. Bhagwat Narayan A.I.R (1929) . Pat. 375, Section 12-A only prohibits the alienation of the property or the creation of a charge thereon, but does not debar the person affected by the Act from borrowing money.

21. Thus, although the plaintiffs cannot get a mortgage decree, they must be held in First Appeal No. 140 to be entitled to enforce the personal covenant by the mortgagor to repay the loan which is always implied in a mortgage. The plaintiffs cannot enforce the covenant in Second Appeal No. 722, as they instituted the suit after the expiry of the period of limitation. I therefore agree with my learned brother that Second Appeal No. 722 of 1934 must be dismissed and First Appeal No. 140 of 1936 should be partly allowed by substituting a money decree for the mortgage-decree passed by the learned Subordinate Judge.