Charles Sargent, C.J.
1. This suit is instituted with the permission of the Collector by the plaintiff to, obtain a declaration of his right to be the holder, for the time being, of a desaigiri hak against the defendant, who is the purchaser at an auction sale in execution of a decree passed in a suit instituted by a mortgagee against the plaintiff as the representative of the original mortgagors (the father and grandfather of the plaintiff), to enforce the mortgage-debt by sale of the hak. The Courts below have found that, notwithstanding the settlement made by Government with the holders of the halt, the hak being a service vatan could not be mortgaged by plaintiff's father and grandfather beyond their life-interests, and that the plaintiff was entitled, therefore, to the hak as the present life-holder. This is opposed to the recent Full Bench decision in Radhabai v. Anantrav Bhagvanl Supra, p. 198 which establishes that, in the absence of any-special family custom, when the office attached to the vatan ceases, the property may be dealt with in the usual way. And as it is not in dispute that the services attached to the vatan in question were discontinued on 8th July 1868, the hak was no longer inalienable when the mortgage was executed on 13th April 1871. Apart, therefore, from the question of jurisdiction by the Court which passed the decree under which defendant purchased, it is plain that the defendant obtained a title to the absolute property in the hak which the plaintiff could not dispute.
2. But it was contended for the plaintiff that the proceedings in the mortgagee's suit took place throughout without the certificate of the Collector as required by Section 6 of Act XXIII of 1871, and, therefore, conferred no title on the defendant; and, secondly, that the defendant, who was the son of the mortgagee, purchased without the consent of the Court, and that the sale was void. This last objection to the defendant's title was not taken in the Courts below, and cannot be taken now in second appeal, being a mixed question of law and fact; but, as to the first objection, it is, in our opinion, one which must prevail against the defendant's title. The Court had clearly no jurisdiction as regards he subject-matter to entertain the suit, and the decree was, therefore, null and void, and could not constitute the basis of any title.
3. But it was urged for the defendant that the plaintiff himself was a party to the mortgagee's suit, and that he was estopped from now taking the objection to the jurisdiction. But apart from the circumstance that the plaintiff was a minor at the time, there could be no question of estoppel by conduct between the judgment-debt or and the purchaser at auction, who derives., his title from proceedings which are entirely in invitum as regards the former. The defendant not having established his title, the plaintiff, who is the holder of the hak, whether still subject or not to the mortgage, is entitled, as against the defendant, to a declaration that he, and not the defendant, is entitled to the hak. We must, therefore, confirm the decree with costs.