Untwalia, J.

1. The State of Bihar and the Land Reforms Deputy Collector, Hazaribagh, the two petitioners in this application, filed under Articles 226 and 227 of the Constitution of India, have obtained a rule from this Court against the four respondents to show cause why the decision of the Honble Mr. Justice Misra, as he then was, acting as a Judge nominated by the State Government for the purpose of the appeal under Section 27 of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) given in Compensation Appeal No. 1 of 1964, be not set aside by an appropriate writ or order. The learned Additional Government Pleader has appeared in support of the rule, and Mr. Raghunath Jha has shown cause on behalf of the respondent.

2. The facts, which may be conveniently stated from the order of the learned Judge, are these. One Dhrup Narain Singh was the holder of an impartible estate known as Dandi-kalan estate. He had three sons; the eldest one was Gajendra Narain Singh and the names of the other two are Narendra Narain Singh and Rajendra Narain Singh. On the death of Dhrup Narain Singh, Gajendra Narain Singh became the holder of the impartible estate. He had two sons, Chandra Mauleshwar Narain Singh and Narrna-deshwar Narain Singh. Out of the two, the former was elder. Chandra Mauleshwar Narain Singh is dead, and his widow is Bimla Kumari; and, he died leaving three sons, namely, Dhirendra Narain Singh, Sachindra Narain Singh and Upendra Narain Singh. When Chandra Mauleshwar Narain Singh became the holder of the impartible estate in the year 1929, as it appears from the copy of the petition dated the 9th August, 1929, filed by the widowed mother of Chandra Mauleshwar Narain Singh, which is to be found at page 17 in the paper book of the compensation appeal, the estate was applied to be taken for the purpose of management under Section 2 of the Chotanagpur Encumbered Estates Act, 1876 (Act 6 of 1876). The estate was accordingly, taken over on the 13th May, 1930. It was released on the 22nd November, 1946, in favour of Chandra Mauleshwar Narain Singh the then holder of the estate, who was the same person as the holder of the estate when the application under Section 2 of Act 6 of 1876 was made.

In less than a year after the release of the estate, Chandra Mauleshwar Narain Singh executed on the 28th Sep. 1947, Khorposh grants in favour of his wife, Smt. Bimla Kumari, his uncles, Narendra Narain Singh and Rajendra Narain Singh and his brother, Narmadeshwar Narain Singh, The estate vested in the State of Bihar under Section 3 of the Bihar Act XXX of 1950 on the 22nd January, 1953. Chandra Mauleshwar Narain Singh died sometime in the year 1954 leaving behind his widow Shrimati Bimla Kumari. Narendra Narain Singh also died and his widow is Srimati Brinda Kumari.

3. Shrimati Bimla Kumari made an application in the proceedings for assessment of compensation under Bihar Act XXX of 1950 claiming that the villages described in Schedule A of her petition had been granted to her in khorposh by her husband. The other persons also in whose favour the khorposh grants had been made filed similar applications. The learned Compensation Officer, however, refused to accede to the prayer made on behalf of Bimla Kumari and others to have their shares in the Dandi Kalan estate assessed separately on the ground that the grants in their favour were hit by Section 12A of Act 6 of 1876. Shrimati Bimla Kumari filed an appeal from the Order of the Compensation Officer before the learned Judge nominated under Section 27 of the Bihar Land Reforms Act.

4. The learned Judge has taken the view that the Khorposh grants are not hit by Section 12A of Act 6 of 1876 and that the interests of all the holders of khorposh grants must be treated as independent estates and their valuation for the purpose of compensation should be assessed as such. A direction has also been given to the learned Compensation Officer by the learned Judge to keep in view the principle of Section 20 of the Bihar Land Reforms Act. The decision of the learned Judge is attacked on behalf of the petitioners as being erroneous in law on its face.

5. Sub-sections (1) to (3) of Section 12A of Act 6 of 1876 read thus:

"(1) When the possession and enjoyment of property is restored, under the circumstances mentioned in the first or the 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 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 subsection (1) shall be void."

Sub-sections (4) and (5) make provision of re-application of the provisions of the Act when it is proved to the satisfaction of the Deputy Commissioner that the holder of the estate in whose favour it was released has made or attempted to make any alienation or charge in contravention of Sub-section (1). The learned Judge has taken the view that Khorposh grant is not tantamount to any alienation within the meaning of Clause (a) of Sub-section (1) of Section 12A. making it void if the grant has been made without the previous sanction of the Commissioner.

6. According to the Websters Third New International Dictionary, the word alienate means to convey or transfer to another (as title, property or right). The question is whether to give property in khorposh grant is to alienate it.

7. To understand the nature of khorposh grant, it is necessary to appreciate the nature and character of an impartible property. It has been stated at page 568 paragraph 587, of Mullas Hindu Law, Thirteenth Edition, that "an impartible estate is not held in coparcenary though it may be joint family property ..... .In the case of an impartible estate, the right to partition and the right of joint enjoyment are from the very nature of the property incapable of existence, and there is no coparcenary to this extent. No coparcener, therefore, can prevent alienations of the estate by the holder for the time being either by gift or by will, nor is he entitled to maintenance out of the estate. But as regards future rights, that is, the right to survivorship, the property is to be treated as coparcenary property, so that on the death intestate of the last holder, it will devolve by survivorship according to the rules stated in Section 591 below." Then, at page 569, paragraph 589, it has said;

"No coparcener has any present rights in an impartible estate. Apart, therefore, from custom and relationship to the holder, the junior members of the family have no right to maintenance out of such estate.

In sub-paragraph (2) of paragraph 589, at page 570, occurs the passage which has been quoted in the judgment of the learned Judge and this runs as follows:--

"Where an impartible estate is held as ancestral or joint family property, the sons of the holder thereof are entitled, by custom, to maintenance out of the estate. This custom has so often been judicially recognized that it is not necessary to prove it in each case. But where the impartible property is the self-acquired property of the holder, his son is not entitled to maintenance out of it."

8. In the instant case, no khorposh grant was made in favour of any son of the holder of the estate. The grants were all made in favour of other relations, namely, the wife, the uncles and the brother of Chandra Mauleshwar Narain Singh. Undoubtedly, the estate was an-cestral and was not his self-acquired property. Even in regard to the sons, who are entitled by custom, which is established by several decisions, to maintenance, a khorposh grant may be made in satisfaction of their right of maintenance, nonetheless the grant will be an alienation of property within the meaning of Clause (a) of Sub-section (1) of Section 12A, as a right to maintenance does not necessarily mean a right to the ownership or a limited ownership in the property itself. The person, who is entitled to get maintenance or who can get a maintenance, can get it from the usufruct of the property. A grant of the property itself or a portion of it is not essential to discharge the claim of maintenance. If in lieu of maintenance, the property itself is transferred by a khorposh grant, it is undoubtedly a transfer! of the property and transfer of almost the full ownership as if by a gift except with this distinction that a property transferred by gift cannot come back to the grantor or his successor, while on failure of the line of succession in the family of the grantee, the property granted by a khorposh grant can come back to the parent estate. But alienation does not necessarily or always mean, transfer of full ownership. Even transfer of a bundle of rights in the properties, as by mortgage, lease, etc. undoubtedly is an alienation within the meaning of Section 12A of Act 6 of 1876. The holder of an impartible estate may be under a legal obligation or a moral one to maintain the other members of the family; but he is not under a compulsion to transfer the property in order to discharge that obligation. The transfer or the alienation may be for the purpose of discharging the obligation, yet it is a transfer or an alienation of the property.

9. The view which I have expressed above finds ample support from the schedule and the other provisions of the Act itself, namely, the Chotanagpur Encumbered Estates Act. The preamble of the Act says that it is being enacted because "it is expedient to provide for the relief of holders of land in Chotanagpur who may be in debt, and whose immovable property may be subject to mortgages, charges and liens." The effect Of the order of vesting of management Of the property in an officer appointed by the Commissioner under Section 2 of the Act is mentioned in Section 3, one of Which is:

"Cessation of power to alienate. Thirdly, so long as such management continues,

(a) the holder of the said immovable property and his heir shall be incompetent to mortgage, charge, lease or alienate their immovable property or any part thereof, or to grant valid receipts for the rents and profits arising or accruing therefrom."

I shall now refer to Section 9 of the Act 6 of 1876 to show that so long as the estate is under the management of the manager, the holder of the estate cannot alienate the property in any manner, such as, by mortgage, charge or lease as expressly mentioned in Clause (a), quoted above, or by sale, gift or by maintenance grants or in any other way. Had that not been so. Section 9 could not invest the Manager with the power to inquire into consideration for leases Or maintenance grants made within three years immediately preceding the publication of the order mentioned in Section 2 and to set aside the leases or grants under certain circumstances. The expression maintenance grant expressly occurs in Section 9. It is manifest, therefore, that so long the estate remains under the management of the manager, the holder of the estate cannot alienate it or any part of it even by a maintenance grant. That being so. I do not see Why the expression "to alienate . . . in any way" occurring in Clause (a) of Sub-section (1) of Section 12A should not be Interpreted to mean that the disability to make alienation of any kind including the maintenance or the khorposh grant continues even after the estate has been released. The disability is of a limited kind and attaches to that person and that person only who was the holder of the property when it was sought to be taken under the management and who remains the holder of the property when it is released under the circumstances mentioned in the first or the third clause of Section 12, as undoubtedly the release was in this case.

The disability is not absolute. The alienation can be made with the previous sanction of the Commissioner. If the Khorposh grant is within a reasonable limit permissible by law, it is manifest that the Commissioner will accord his sanction. If he does not do so, a right of appeal to the Board of Revenue has been provided under Sub-section (2) of Section 12A. Sanction may. however, be refused if it is found that the khorposh grant is of an amount of property which, in proportion to the total corpus of the estate, is unreasonable or is a device to partition the estate or is being made with some other motive to encumber the estate. Since such questions are inherent in an enquiry which may be made by the Commissioner while giving the sanction to alienate the property by a khorposh grant and since sanction may not be accorded if due to one reason or other, as mentioned above, the khorposh grant is not legitimate, bona fide or within reasonable limits, it follows that even the maintenance grant was not permitted to be made by the holder of the estate without the previous sanction of the Commissioner. I, therefore, see no reason to exclude the transfer of property by a khorposh grant from the expression "to alienate ... .in any way" occurring in Clause (a) of Sub-section (1) of Section 12A of Act 6 of 1876.

10. I have not endeavoured to rest mv Judgment on the authority of the decision in Bageshwari Charan Singh v. Bindeshwari Charan Singh : AIR 1932 Pat 337 [LQ/PatHC/1932/64] by James and Agarwala, JJ. The decision in that case rested chiefly on two points: (1) that the prohibition of alienation within the meaning of Section 12A embraced within its ambit the transfer of property by a Khorposh grant, and (2) that the decision in a previous suit did not operate as res judicata on this question. The case went up to the Privy Council in Bindeshwari Charan Singh v. Bageshwari Charan Singh. : AIR 1936 PC 46 [LQ/PC/1935/90] . The Privy Council upset the decision of the Patna High Court holding that the decision in the previous suit taking the view that the grant was not hit by the provision of law contained in Section 12A of Act 6 of 1876 operated as res judicata. The issue in regard to the grant, which was the subject matter of the previous suit, could not be retried. Lord Thankerton. who delivered the judgment of the Board, as I read the judgment of his Lordship, did not even by implication say any word to show that the view of Agarwala, J., as he then was. in the Patna decision that a Khorposh Rrant, if made without the previous sanction of the Commissioner, was hit by the provisions of Section 12A of Act 6 of 1876 was either erroneous or correct. The point was not gone into at all in the judgment of the Privy Council. Yet. I do not propose to take the view that the decision of the Patna High Court on the said question has got the force of a binding authority and the learned Judge committed an error in saying to the contrary in that regard, to justify the quashing of his order by grant of a writ of certiorari.

On examining some of the reasons of Agarwala, J. in Bageshwari Charan Singhs case : AIR 1932 Pat 337 [LQ/PatHC/1932/64] I find myself in respectful agreement with the view expressed by him, His Lordship has pointed out at page 340, column 1, that one of the objects and reasons of Bengal Act III of 1909 which introduced Section 12A in the present Act 6 of 1876 was to prevent disqualiled proprietors from making extravagant khorposh grants. Apart from the said reason as also some others given by Agarwala, J., with whom I respectfully agree, I have ventured to give my own reasons for taking the view that a khorposh grant also entails the consequence of being void under Sub-section (3) of Section 12A of Act 6 of 1876 if it has been made without the previous sanction of the Commissioner. I do not see any escape from this position. With very great respect, I venture to say that the reasons given by the learned Judge in support of the view expressed by him are erroneous on their face. An estate may be wasted by unreasonable khorposh grant, or, if such grant is made with ulterior motives. The fact that, in this particular case, the grant was not attacked as such is of no consequence for interpretation of Section 12A of Act 6 of 1876. The fact that no outsider is brought as a transferee or an alienee by a khorposh grant as the grantee must be a family member is again, in my opinion, not relevant to the issue. To say even, in regard to the right of the sons to get a grant, that the grant is merely in favour of a member of the family who has already got a vested right to be supported out of the estate and who has his right only concretised in the form of a grant made to him is not correct. Even if the grant is in favour of the son, I do not feel persuaded to subscribe to this view.

It may be stated here that out of the four respondents in this case, three of them, namely, respondents 1, 2 and 4 are the grantees themselves and respondent No. 3 is the widow of one of the grantees. I am of the view that as in the case of alienation by mortgage, lease, sale or gift, so in the case of a khorposh grant, the estate does not necessarily result in its waste. It all depends upon the particular facts of the alienation sought to be made as to whether it is with a view to waste or will result in the waste of the estate. The estate can be wasted by all kinds of alienations, enumerated above, including the khorposh grant; and that is the reason that a safety valve has been provided in section "12A of Act 6 of 1876 for the protection of the estate by making it incumbent for the holder of the estate of the kind mentioned in that section to alienate the estate or any part of it in any way with the previous sanction of the Commissioner. II the Commissioner thinks that the proposed alienation is not with a view to waste or will not result in the waste of the estate, obviously he will accord the sanction; but if he comes to a contrary conclusion, he is bound to withhold it. I, therefore, see no reason to exclude the khorposh grant from the ambit of the safety valve provided in Section 12A of Act 6 of 1876. In my opinion, the decision of the learned Judge is contrary to law and suffers from an infirmity of the kind which would justify its quashing by grant of a writ of certiorari.

11. In the view I have expressed above affirming the one taken by the learned Compensation Officer that the Khorposh grants in this case made without the previous sanction of the Commissioner are void, the question of a direction to the said Officer to keep in view the principle of Section 20 of Bihar Act XXX of 1950 becomes redundant. I may also add that even apart from the said view, the principles of Section 20 cannot be attracted to the case of a person in whose favour a khorposh grant has been made, as Section 20 of the Bihar Act XXX of 1950 provides for separate treatment of proprietor and tenure-holder in case of a member of a joint Hindu family having or entitled, to a share in an estate or tenure as if there were a partition on the date of vesting, and, not in the case of a person in whose favour a khorposh grant had been made and an interest had been created, if created validly. If the grant is not invalid, the grantee in his own right will be treated as an intermediary and the compensation assessment roll will have to be prepared in his name. Our attention in this connection was also drawn to Sub-section (6) of Section 24 of the Bihar Land Reforms Act. But, in my opinion, that section also does not apply to a case of a khorposh grant as it applies in terms to a person who is in receipt of a monetary allowance in lieu of maintenance which is a charge on the estate or tenure and not otherwise. By a khorposh grant, the property itself is transferred in lieu of maintenance, and, it is not made subject to any charge for payment of maintenance.

12. For the reasons stated above, I am constrained, although with utmost respect, to set aside the decision of the learned Judge by grant of a writ of certiorari; but there will be no order as to cost.

Wasiuddin, J.

13. I agree.