1. The plaintiff holds a mortgage with conditional sale from Gurdayal of his one-third share in mauza Dharwan and has brought this suit for foreclosure. It appears that Gurdayal and the shareholders of the other two-thirds of the mauza fell into arrears of revenue, and the Government annulled; he settlement under Section 158, Revenue Act, and under Section 159 farmed the mauza to the plaintiff. The plaintiff also appears to have fallen into arrears of revenue, and the Collector, also acting under Section 159, took the mauza under his management. Eventually, as the arrears could not be cleared off by kham management, the one-third share of Gurdayal was, under the provisions of Sections 165 and 43, Revenue Act, offered to defendant Bari Bahu, wife of Gurdayal, as representing him. He, it appears, had become a bairagi. She satisfied the arrears due, Rs. 908-6-11, and afresh settlement was made with her. The claim of the plaintiff to foreclose has been resisted by her on the ground that the estate is not liable in her hands for the mortgage made by Gurdayal. Both Courts decreed the claim, and the same plea is now raised in second appeal before us, and is the only ground pressed in appeal.
2. The plea is invalid. There is no doubt that under Section 159, Revenue Act, so long as a farm or kham management continues as to land the settlement of which had been annulled, all contracts made by the persons who immediately before the annulment of the settlement were in possession of the land comprised therein, relating to such lands, are during the term of farm or kham management not binding on the Collector of the District, or his agent or lessee; but in the present cape the term of farm and kham management ceased, and Bari Bahu, the defendant, was put into possession, not as farmer, but as a proprietor with whom a fresh settlement has been made under Sections 165 and 43; and there is nothing in the law by which the contracts made by her predecessor, Gurdayal, are not binding on her, just as they would be on him. The fact that she paid off revenue, or that the original settlement was cancelled and a new one made with her for the period of the current settlement, does not relieve her from tie obligations of contracts made by her predecessor in title. In this case, if the plaintiff is responsible for any of the arrears which she has satisfied, she may possibly have a claim against him on that account; but on that point I express no opinion; but she cannot be relieved of the obligation created by the mortgage made by Gurdayal. Whether or not the settlement should have been made with Gurdaval under Section 43 rather than with Bari Bahu does not affect the question before us. She was treated as proprietor, or as representing Gurdayal as his heir, who had by becoming a bairagi disassociated himself from affairs, and was treated as civilly dead; and in either case the estate in her hands is liable for the mortgage made by Gurdayal. The appeal is dismissed with costs.
3. I am of the same opinion; but as in the course of argument E expressed some doubt as to the view which my brother Oldfield and I now take, I wish to add a few words. It appears that the whole question now is, whether the plaintiff, as holder of a mortgage from Gurdayal, can enforce it in this suit as against Bari Bahu, who is admittedly in possession of the property mortgaged through an arrangement made between her and the Collector of the district in which the property is situated. The question seems to depend upon our knowing the exact legal status of this lady in regard to this estate. Having carefully examined the original record of the proceedings by the Collector, after Gurdayal fell into arrears of Government revenue, I have arrived at the same conclusion as my learned brother Oldfield, namely, that his action must be regarded as having been taken in accordance with Section 165 of the Land-Revenue Act (XIX of 1873), read with Section 43 of the same Act. Of course action so taken was one of the measures for which the Legislature provided in Section 150 of the Act, and my difficulty at the hearing was whether the Collector's action, in settling the estate with Bad Bahu, was legal. I still entertain considerable doubt, because I am inclined to think that Section 165 of the Revenue Act, read with Section 43, enables the Collector be settle land only with the proprietor, that term being by ordinary rules of construction understood as including those who represent him in title. Of course, the case of a mortgage or conditional vendee--the other persons with whom a settlement may be made,--does not arise here. But this doubt is not a matter with which we are concerned.
4. It may be that Gurdayal being admittedly still alive, the action of the revenue authorities in treating him as if he was dead and in settling the property with his wife, was illegal. But in this case we are dealing with the matter as a Civil Court, and I therefore agree with my brother Oldfield in holding that the question cannot be adjudicated on by us so far as regards the validity of the settlement made by the Collector. By reason of Clause (b) of Section 241 of the Revenue Act, we have no jurisdiction to enter into the merits of the matter, and therefore we must take it that the wife does now represent such rights and interests as Gurdayal possessed, and, in consequence, he is virtually bound by such contracts regarding the property as he made. It is unnecessary for me to remark as to the effect of the circumstance that Gurdayal himself is one of the defendants in the present suit. For these reasons I concur in the order proposed by my brother Oldfield.