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Mt. Kulsoomun Nissa v. Noor Mohammad

Allahabad High Court

May 8, 1936

Judgment

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Structured Summary of the Opinion

Factual and Procedural Background

Plaintiffs sued in the revenue Court to recover arrears of Government revenue from defendant 1, alleging that they were assignees (in fact, assignees of an assignee) entitled to collect the revenue. Defendant 2 (Hakim Shyam Sundar Lal), heir of the original assignee, was not initially impleaded but was later added on his own application. Written statements did not specifically deny the plaintiffs' representative status but challenged their right to maintain the suit. Defendant 1 pleaded that he had in good faith paid the revenue to Hakim Shyam Sundar Lal. Hakim Shyam Sundar Lal also contended that special Government orders, rules and regulations relating to the grant were adverse to the plaintiffs and sought striking off the suit.

Both the trial Court and the lower appellate Court dismissed the suit. When the trial Court prepared its decree after dismissal, the name of Hakim Shyam Sundar Lal was omitted; the decree was later amended to add his name. The plaintiffs substituted his name into their memorandum of appeal within 30 days of that amendment. The lower appellate Court dismissed the appeal on several grounds; this appeal arises from that dismissal.

Legal Issues Presented

Whether the plaintiffs' appeal against Hakim Shyam Sundar Lal was barred by limitation because they had not made a formal application under Section 5 of the Limitation Act for an extension of time after his name was initially omitted from the decree.
Whether the District Judge hearing the appeal from the revenue Court, when acting as a civil Court on appeal, was barred from entertaining the matter by Section 4 of the Pensions Act (23 of 1871), because the suit related to a pension or grant of land revenue.
Whether the grant of land-revenue in question was a "pension" within the meaning of Sections 11 and 12 of the Pensions Act, thereby rendering the assignment void under Section 12.
Whether the assignment of land-revenue in this case was transferable (including whether assignees of an assignee can enforce the right), and specifically whether Sections 223 and 229 of the Agra Tenancy Act apply to such assignees.
Fact-specific questions remanded to the lower Court: (a) Whether the plaintiffs are entitled to receive the revenue from defendant 1; and (b) If the Government resumed the revenue of the 10 biswas, whether the 3 biswas now in dispute are included in those 10 biswas.

Arguments of the Parties

Appellants' (Plaintiffs') Arguments

Plaintiffs asserted they were the (representative) assignees entitled to recover the land-revenue arrears; there was no specific denial in written statements of their representative status.
They argued that the omission of Hakim Shyam Sundar Lal's name from the original decree was a procedural/technical defect, rectified by the decree's amendment and the substitution within 30 days, and that a strict application of Section 5 Limitation Act should not defeat their appeal.
On the merits, appellants contended (as stated in Ground No. 10 of the memorandum of appeal) that the share in dispute (3 biswas) was outside the 10 biswas alleged to have been re-granted to Hakim Shyam Sundar Lal, and that the assignment could not lawfully have been resumed by Government.
Plaintiffs relied on authorities and statutory provisions (including Agra Tenancy Act sections and Bengal Regulation 37 of 1793, Section 15 as cited in reported decisions) to support transferability of the grant.

Respondents' (Defendants') Arguments

Defendant 1 pleaded he paid the revenue in good faith to Hakim Shyam Sundar Lal and thus sought to defeat recovery by plaintiffs.
Hakim Shyam Sundar Lal denied the plaintiffs' right to recover and pleaded that special Government orders, rules and regulations relating to this grant were adverse to plaintiffs and could defeat the plaintiffs' claim.
Respondent-defendants relied on an interpretation of the Pensions Act such that the grant of land-revenue was a pension or akin to a pension and thus its assignment was void under Section 12; reliance was also placed on the decision in Lakhmi Chand v. Madho Rao (1930 ALJ 1326) as supporting non-transferability in materially similar grants.
Respondents emphasized prior Board of Revenue orders and earlier decisions (including the disputed character of the original assignment and any re-grant) to assert that the plaintiffs' claimed share might have been extinguished or re-granted to Hakim Shyam Sundar Lal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bhoopal Rai v. Shiam Sundar Lal, 1929 ALJ 724	Conflicting judicial views on whether a grant of land-revenue is a "pension" under the Pensions Act; Sen, J. held that land-revenue grant is not a "pension" and may be hereditary/like a jagir; Ashworth, J. treated the term "pension" broadly to include grants of land-revenue and recurring payments.	The Court accepted Sen, J.'s interpretation (that a grant of land-revenue is not a "pension" within Sections 11 and 12) and rejected the broader view attributed to Ashworth, J.; this acceptance was central to holding that the assignment was not void under Section 12.
Lakhmi Chand v. Madho Rao, 1930 ALJ 1326	Held in that case that a particular assignment of land-revenue was barred by Section 12 of the Pensions Act (i.e., non-transferability in the specific terms of that grant and confirmment).	The Court distinguished that decision: it noted that Lakhmi Chand turned on specific language in the original grant and confirmment indicating non-transferability, whereas the present grant (to a person and his heirs in perpetuity) contained nothing to indicate non-transferability.
Mumtaz Husain v. Brahmanand, 1936 ALJ 161	Applied Section 15 of Bengal Regulation 37 of 1793 to hold that, in a similar grant, the grant could be transferable.	The Court cited this ruling to support the proposition that the terms of a grant may make it transferable and to reinforce the conclusion that Section 12 of the Pensions Act did not automatically bar transferability in the present case.

Court's Reasoning and Analysis

The Court addressed the principal grounds on which the lower appellate Court dismissed the suit in turn, explaining the legal principles that controlled each point and how those principles applied to the facts as pleaded.

1. Limitation (Section 5, Limitation Act): The lower appellate Court dismissed the plaintiffs' appeal against Hakim Shyam Sundar Lal for failure to make a formal application for extension of time under Section 5. The appellate bench thought this approach was erroneous. The Court reasoned that the omission of Hakim Shyam Sundar Lal's name from the original decree was obviously a procedural omission (his name had not been included in the decree), the decree was subsequently amended, and the plaintiffs substituted his name in the memorandum of appeal within 30 days of amendment. Given these circumstances, the Court held that the lower Court should have relaxed strict formalism and allowed the rectification rather than treating the appeal as time-barred.

2. Jurisdiction under the Pensions Act (Section 4): The lower appellate Court concluded that Section 4 of the Pensions Act barred the District Judge (sitting as a civil Court on appeal) from entertaining the matter because, it thought, the suit related to a grant akin to a pension. The Court rejected that interpretation as leading to an absurdity: under the lower Court's view, a Collector's certificate might not be needed for the trial in the revenue Court, but would be required once the appeal reached the District Judge sitting as a civil Court. The Court adopted a literal reading of Section 4 to mean that a civil Court is debarred from entertaining certain suits, not from entertaining appeals; consequently, where a suit properly lies in the revenue Court and its jurisdiction is not ousted, the District Judge hearing the revenue appeal is competent to dispose of the matter.

3. Whether the grant was a "pension" (Sections 11 and 12): The Court examined the statutory scheme. It noted that Section 4 mentions pensions, grants of money, and grants of land-revenue distinctly; Section 9 specifically addresses suits by grantees of land revenue; Section 11 deals with pensions granted for political considerations or past services; and Section 12 applies to assignments of pensions or remunerations identified in Section 11. The Court emphasized the legislative distinction between (a) pensions/grants of money (periodic payments by Government) and (b) grants of land-revenue (which create an interest in immovable property and entitle the grantee to recover revenue directly from zamindars).

Applying these distinctions, the Court accepted Sen, J.'s reasoning in Bhoopal Rai v. Shiam Sundar Lal that a grant of land-revenue is not a "pension" within the meaning of Sections 11 and 12. Consequently, Section 12 did not automatically render the assignment void. Whether an assignment is transferable depends on the terms of the original grant and confirmments.

4. Transferability and effect of Government orders: The Court acknowledged the respondents' contention—based on Board of Revenue orders referred to in earlier reports—that there may have been a restoration or a fresh grant to Hakim Shyam Sundar Lal, and that some assignments had been treated as political pensions and declared non-transferable. Because that factual question was material to the plaintiffs' right to recover, the Court considered it improper to decree without probing whether the plaintiffs' 3 biswas were distinct from the 10 biswas said to have been re-granted.

5. Remand and final fact-finding: The Court therefore remanded two specific issues to the lower Court for adjudication with leave to produce fresh evidence: (1) whether plaintiffs are entitled to receive the revenue from defendant 1; and (2) whether the 3 biswas in dispute are included in any resumed 10 biswas. The lower Court later returned findings in favour of the plaintiffs on both issues: it found as a fact that the plaintiffs were entitled to receive the revenue from defendant 1 and that the disputed 3 biswas were separate from the 10 biswas claimed by Hakim Shyam Sundar Lal.

6. Final application of precedents and statutory provisions: The Court considered Lakhmi Chand v. Madho Rao and distinguished it on its facts (that case turned on language in the original grant and confirmment showing non-transferability). It found nothing in the present grant that indicates non-transferability; further, the Court noted Mumtaz Husain v. Brahmanand, which applied Section 15, Bengal Regulation 37 of 1793, as supporting transferability in similar circumstances. The Court also observed that Sections 223 and 229 of the Agra Tenancy Act would apply to assignees of an assignee as well.

7. Conclusion of analysis: On the combined legal and factual findings, the Court concluded the case was not barred by Section 12 of the Pensions Act, the plaintiffs' remedy had not been ousted by jurisdictional rules, and the appeal should succeed on the merits.

Holding and Implications

Holding: The Court allowed the appeal. It granted the plaintiffs a decree in full with costs in all Courts against the defendants.

Implications and immediate consequences:

The lower appellate Court's rulings on (a) refusal to relax the limitation objection and (b) the District Judge's inability to hear the appeal under Section 4 of the Pensions Act were held to be erroneous and reversed in part as to procedure and jurisdiction.
On the substantive issue, the Court held that a grant of land-revenue in this case is not a "pension" within the meaning of Sections 11 and 12 of the Pensions Act; accordingly, the assignment was not automatically void under Section 12. The transfer in question was held effective on the facts as found by the lower Court after remand.
The specific factual determination returned by the lower Court (after remand) in favour of the plaintiffs—that the plaintiffs were entitled to collect from defendant 1 and that the 3 biswas in dispute were distinct from the 10 biswas re-granted to Hakim Shyam Sundar Lal—was accepted and forms the factual basis for the decree.
The Court emphasized that the decision in this suit does not bind the Government because the Government was not a party to the proceedings.
No broader binding precedent on Government interests was imposed by this judgment against the Government, and the Court's rulings were carefully tied to statutory interpretation and to the specific terms and factual matrix of the grant in question.

Procedural note: The Court remanded two issues on 6th September 1935; the later returned findings in favour of the plaintiffs formed the factual basis for the final decree.

Show all summary ...

1. This is a plaintiffs' appeal arising out of a suit brought in the revenue Court for arrears of Government revenue against defendant 1 on the allegation that the plaintiffs were the assignee of the assignee of the Government revenue and were entitled to recover the amount. Originally defendant 2, who was the heir of the original assignee of the Government revenue, had not been impleaded, but later, on his own application, he was made a party to the suit. The fact that the plaintiffs are the representatives of the original assignee of the Government revenue does not appear to have been seriously disputed. There was in any case no specific denial in the written statements. But it was pleaded that the plaintiffs had no right to maintain the suit. Defendant 1 further pleaded that he had in good faith made the payment of the Government revenue to defendant 2, Hakim Shyam Surdar Lal, while the latter denied the plaintiff's right to recover the amount, and also pleaded that the special Government orders, rules and regulations relating to this grant of revenue were against the plaintiffs, and the suit should be struck off. Both the Courts below have dismissed the suit. After the dismissal of the suit when the trial Court's office prepared the decree the name of Hakim Shyam Sundar Lal, defendant 2, was omitted from it. Accordingly in the appeal preferred by the plaintiffs against the decree Hakim Shyam Sundar Lal was not shown in the array of defendants. Later on the decree of the trial Court was amended and the name of Hakim Shyam Sundar Lal also added in it. The plaintiffs got the name of Hakim Shyam Sundar Lal substituted in the memorandum of appeal within 30 days of this amendment. The first ground on which the appeal has been dismissed by the lower appellate Court is that the plaintiffs had not made any formal application for an extension of time under Section 5, Limitation Act, and that, therefore, their appeal against Hakim Shyam Sundar Lal was beyond time. In our opinion the Court below has erred in exercising its discretion in this matter. The reason why Hakim Shyam Sundar Lal's name was omitted from the names of the respondents obviously was that his name did not find a place in the decree. He was impleaded later on within 30 days of the substitution of his name. We think that the lower Court should have allowed the defendant to get round the technical objection of the absence of a formal application for extension of time.

2. The second ground on which the lower appellate Court has dismissed the suit is that under Section 4, Pensions Act (23 of 1871), no civil Court can entertain any suit relating to any pension or grant of money or land revenue conferred or made by the British or any former Government, except as provided in the Act. The lower Court admits that the suit was really filed in the revenue Court and not in the civil Court, but has come to the conclusion that in such cases an appeal lies to the District Judge as a civil Court, therefore, the learned Judge in appeal was sitting as a civil Court and his jurisdiction was, therefore, barred under Section 4, Pensions Act. Such an interpretation of the section would lead to this anomaly, that although no certificate of the Collector may be necessary while the suit is being tried by the revenue Court, a certificate would be necessary when the appeal is heard by the District Judge as a civil Court. In our opinion this cannot be the meaning of the section. taking section 4 literally, a civil Court is debarred from entertaining any suit, etc., and not debarred from entertaining any appeal. It would seem that if the suit had been filed in the revenue Court originally and the jurisdiction of that Court was not ousted, then the District Judge hearing the revenue appeal would be competent to dispose of the matter. We, therefore, think that the learned Judge has taken a wrong view on this point.

3. The third and the main ground on which the suit has been dismissed is that the grant of revenue was a pension within the meaning of sections 4, 11 and 12 and the assignment was, therefore, void. Now Section 12 refers to all assignments made by the person entitled to any pension, pay or allowance mentioned in Section 11, and Section 11 speaks of a pension granted or continued by Government on political considerations or on account of past services or present infirmities or as a compassionate allowance. It is significant that Section 4 not only mentions a pension but also mentions grant of money and grant of land revenue; Section 9 deals with suits brought by the grantee of land revenue for recovery of such revenue from the persons liable to pay the same, while Section 11 deals with pensions granted by Government and does not specifically refer to grant of land-revenue. It thus appears that the legislature has drawn a clear distinction between a pension and grant of money, and the grant of land-revenue. In the former case it is a money payment, a payment of an allowance by Government which may have to be paid out of the Government treasury. In the case of the assignment of land-revenue it may be a creation of an interest in the immoveable property and is certainly not a direct payment of money by Government. The case before us is not one of any pension to be paid by Government to the grantee. It is an assignment of the land-revenue itself which entitles the assignee to recover such revenue directly from the zamindars who are liable to pay the same. Such assignment of land-revenue is not contemplated by Section 11 or Section 12 of the Act. Whether such an assignment is transferable or not will depend on the terms of the grant itself. Presumably, if it is an interest in immoveable property, the right would be heritable and transferable. In this case counsel for both the parties have relied strongly on the differing judgments delivered in Bhoopal Rai v. Shiam Sundar Lal 1929 ALJ 724. Sen, J., came to the conclusion (p. 372) that the grant of land revenue as such cannot be comprised in the term 'pension.' A grant of Government revenue can in no case be treated as a political pension which is a pension granted on political considerations for reasons of State; A right to share in the Government revenue granted in perpetuity by a sovereign power cannot be described either as a pension or as a political pension. Such a grant may be a heriditary grant as in the present case and partakes of the nature and character of a jagir.

4. On the other hand Ashworth, J. (page 734) came to the conclusion that:

The word 'pension' is used throughout in the Act as including the sub-divisions of the general expression 'pension,' namely pension, grant of money, or land-revenue, expressed in Section 4 of the Act. In other words, the word 'pension' as used in the Act is at times used in a general sense to cover any form of recurring payment granted by Government and in other places is used to express only a species of the generic term.

5. We accept the interpretation put on this term by Sen, J. and therefore hold that the grant of land-revenue is not a pension within the meaning of Section 11 and Section 12. Another point raised was that the present plaintiffs are not assignees of the land-revenue but assignees of the assignee of land-revenue. There is however no force in this contention. Section 223 and Section 229, Agra Tenancy Act, would apply to assignees of the original assignee of revenue as well. We are therefore of the opinion that the view taken by the learned District Judge on all these points was erroneous. There is however one consideration which cannot be overlooked. In the written statement filed by Hakim Shyam Sundar Lal he had pleaded that the special Government orders, rules and regulations relating to this grant of revenue were against the plaintiffs. It may also be noted that in Bhoopal Rai v. Shiam Sundar Lal 1929 ALJ 724, Sen, J., on p. 729, referred to certain orders of the Board of Revenue suggesting that there was a restoration of the assignment of revenue of 10 biswas to Hakim Shyam Sundar Lal and that the Government declared that the assignments of remissions of revenue granted for periods limited to the lifetime of the grantees or their immediate successors were in the nature of political pensions and should be treated as non-transferable. The contention therefore is that the previous assignment was extinguished and there was a fresh grant of the revenue to Hakim Shyam Sundar Lal under the orders of the Board of Revenue.

6. On the other hand, it is urged on behalf of the appellants that the assignment of this Government revenue was not and could not be resumed by Government, and it is further suggested in Ground No. 10 of the memorandum of appeal that the share involved in the present suit was outside the 10 biswas appertaining to the muafi of Hakim Shyam Sundar Lal. We think that it would not be proper to pass a decree without this matter having been properly investigated. If the share which has devolved on the plaintiffs was resumed by Government and there has been a fresh grant made to Hakim Shyam Sundar Lal, then the plaintiffs would not be entitled to recover the Government revenue from the zamindar, defendant 1. If however the three biswas in the possession of the plaintiffs were distinct and separate from the 10 biswas which have been re-granted to Hakim Shyam Sundar Lal, then there would be no defect in the present suit. We accordingly send down the following issues to the Court below for determination: (1) "Whether the plaintiffs are now entitled to receive the revenue from defendant 1?" (2) In case the Government resumed the revenue of the 10 biswas, whether the 3 biswas now in dispute are included in those 10 biswas? Parties will be allowed to produce fresh evidence. The findings will be returned within three months when ten days will be allowed for objections.

7. In continuation of our order of 6th September 1935, in which two issues were remanded to the lower Court, the finding has now been returned, and the finding on these two issues is in favour of the plaintiff. The lower Court finds as a matter of fact that the plaintiffs are entitled to receive the revenue from defendant 1 and that the 3 biswas of which the plaintiffs claim to be the assignees of land revenue is separate from the 10 biswas claimed by the contesting defendant Shyam Sundar Lal. Some argument was made that the assignment of land revenue could not be transferred and learned Counsel for the defendant-respondents contended that in the ruling Lakhmi Chand v. Madho Rao 1930 ALJ 1326 it had been held that a similar case of assignment of land revenue was barred by Section 12, Pensions Act. But each case of assignment must be considered in terms of the original grant and of subsequent confirmments. In that particular case there was certain language used both in the original grant, which was to' a particular person, and in the subsequent confirmment, which was to a particular family, which led the Court to hold that the assignment was not transferable. In the present case the original grant was to a certain person and his heirs in perpetuity.

8. There is nothing in this grant which indicates that the grant was not transferable. We have also been shown on behalf of the appellant a ruling reported in Mumtaz Husain v. Brahmanand 1936 ALJ 161 in which in a similar grant it was held that the provisions of Section 15, Bengal Regulation 37 of 1793 would make the grant transferable. We consider that the terms of this grant may make it transferable and that the case is not barred by Section 12, Pensions Act. We therefore allow this appeal and we grant the plaintiffs a decree in full with costs in all Courts against the defendants. The question of the validity of the transfer or of the plaintiff's right is only decided in this suit on the findings of the lower appellate Court against the defendants and as the Government was not a party to this suit the decision in this suit will in no way bind the Government.