JUDGMENT Sen, J.
1. This is an appeal by two plaintiffs arising out of a suit for recovery of Rs. 296-14-6 on account of the arrears of revenue of mauza Lakhanpur, pargana Budaun for the years 1330 and 1331 F. at the rate of Rs. 118-7-3 per annum under Section 161, Act 2 of 1901. The plaintiffs also claimed interest.
2. The suit was directed against Hakim Shiam Sunder Lal and his brother Lala Babu, who were the sons of Hakim Jawahir Lal. The defendants contended that the revenue of mauza Lakhanpur had been assigned to their ancestors from the time of the Moghal Emperors, that ten biswas of muafi land of mauza Lakhanpur had bean resumed by the Government in the year 1906 and re-granted to the defendants about the year 19i2, that the plaintiffs had no interest or concern with the right to the Government revenue, that the provisions of the Pensions Act (Act 23 of 1871) were applicable to the case and that a single suit for arrears of revenue situate in three mahals was not maintainable.
3. There has been considerable litigation with reference to the right to appropriate the revenue of the property
4. An ancestor of Hakim Shiam Sundar Lal was a physician attached to the Court of the Moghal Emperor Babar. The Emperor in recognition of, and as a reward for, his services granted to him and his heirs, in perpetuity, the revenues of a village called Mohammadpur Byar, and of ten biswas of mauza Lakhanpur. These villages were in the occupation of the zamindars. The zamindars were liable to pay the Government revenue to the State, but under the grant made by the Moghal Emperor, the arrangement was that they had to pay the Government revenue, not to the coffers of the State, but to the grantee and his heirs in perpetuity. This grant was recognized by the British Government, as would appear from a revenue extract of the year 1867, referring to the recognition by the Government on or about 30th July 1853. The transaction was entered in the revenue records as muafi.
5. The last male holder of this muafi was Hakim Dalpat Rai. On his death, it devolved upon his daughter, Mt. Ram Piari. Mt. Ram Piari was married to one Durga Pershad. She died on 24th June 1901, levying a daughter Mt. Bhawaneshwari. One Jawahir Lal, a distant cousin of Dalpat Rai claimed a right to this property presumably in opposition to the rights of Mt. Bhawaneshwari, and his rights were declared and recognised by the Courts of law. As has already been noted, the defendants-respondents are the sons of Jawahir Lal aforesaid.
6. In 1272 F. Sheikh Chhiddu an Tara-fat-un-nissa were the zamindars of Lakhanpur in unequal shares. Chhiddu owned 15 biswas and Tarafat-un-nissa was the owner of the remaining 5 biswas. Chhiddu sold his 15 biswas to Sharafuddin and to Hamiduddin. In 1902, the following persons were the recorded zamindars: Intizamuddin (son of Sharafuddin) 7½ biswas; Nur Mohammad, grandson of Hamiduddin 7½ biswas and Taraf-un-nissa 5 biswas. The rights of the zamindars extended to the appropriation of the raqm siwai etc., and to collection of rents but they were liable to pay the revenue to certain muafidars whose names are detailed below:
7. Dalpat Rai was entitled to half of the Government revenue; Mohammad Saeed Khan to 1/8th Saif Uullah Khan to 1/8th, Mt. Munna Begam to 3/20th and Maulvi Ali Bakhsh to 1/10th The Government revenue assessed on the property was Rs. 1,150.
8. Dalpat Rai assigned his share of the revenue partly to Arzmand Ali and Muizuddin and partly to a zivarat. Arzmand Ali Khan and Muizuddin sold their rights to Khiyali Ram, who was the husband of Mt. Bilaso and father of the present plaintiffs. Mt. Bilaso brought a suit for the recovery of her share of the revenue for the years 1304 to 1306 F. against Nur Mohammad, the lambardar. Her suit was dismissed on the ground that it was misconceived and that she ought to have sued the heirs of Dalpat Rai. It was a remarkable decision. The grounds upon which the decision was based cannot be understood and it is further remarkable that the decision passed muster on appeal. Mt. Ram Piari brought a suit against Nur Mohammad for the revenue from Rabi 1304 to Kharif 1307 F. Her claim was substantially allowed by the appellate Court on 4th January 1901. In 1902, Mt. Bilaso sued in the Court of the Subordinate Judge of Shahjahanpur for a declaration of title to the revenue of village Lakhanpur and for the recovery of the arrears due. The suit was directed against seven persons, namely, Nur Mohammad, Mt. Bhawaneshwari, Durga Pershad, Jawahir Lal, Ram Dayal, Mathura Pershad and Itwari Lal. This suit was dismissed by the original Court on 1st December 1902, but the claim was partially allowed on appeal by Mr. Steel, the District Judge, by his judgment, dated 2nd March 1903. He held that Mt. Bilaso was entitled to a declaratory decree to the effect that she had a right to realise from Dalpat Rai's heirs Rs. 148-7-3 per annum being the assigned revenue of mauza Lakhanpur. This is another judgment which it is not possible to understand and the mistakes which have produced confusion in the present case begin from this date. Mr. Steel also granted a decree for Rs. 521-14 with future interest from the institution of the suit till realization at 6 per cent per annum. In 1904, Mt. Bilaso brought a suit in the Court of Mr. Cole, Assistant Collector, First Class, for the recovery of Rs. 536-6 for arrears of revenue for the years 1308,1309 and 1310 F. against Hakim Durga Pershad and others. On 5th April 1904, an ex parte decree was passed for Rs. 445-5-9 with interest. On 19th July 1905, Mt. Bilaso again obtained an ex parte decree against Hakim Durga Pershad and another for arrears of revenue. In 1914 Mt. Bilaso brought a suit against Hakim Shiam Sundar Lal, the present respondent, in the Court of an Assistant Collector, First Class, for recovery of arrears of revenue under Section 161, Act 2 of 1901. The defence gave rise to six issues, four of which are material:
(1) Whether the suit is cognizable by the revenue Courts?
(3) Whether the plaintiff is entitled to sue?
(4) Whether the plaintiff is a muafidar? and (5) Whether the suit is barred by Act 23 of 1871?
9. The Court held that the plaintiff as vendee of the assignee of the muafidar was entitled to sue in the revenue Courts under Section 161 coupled with Section 166, Agra Ten. Act. It also held that the suit was not barred by the provisions of Act 23 of 1871. It observed that:
Section 9 of the said Act is quite clear. Had the suit been against Government it would have been quite a different thing.
10. This decree was affirmed by Rai Bahadur Babu Srish Chander Base, District Judge, on 5th December 1914. His judgment proceeded upon the grounds that Mt. Bilaso was a recorded cosharer and could maintain a suit under Section 161 Ten. Act, that in the former suits between the parties Jawahir Lal had not pleaded the bar of Act 23 of 1871, that Mt. Bilaso had obtained a decree from the revenue Court (decree No. 1 of 1905) for her share of the revenue from Jawahir Lal, and that for more than 12 years the assignees of Dalpat Rai had been in possession of the sub-muafi and that their title, if defective in the beginning, had become perfected by lapse of time and adverse possession. This decision was upheld by Sir George Knox in second Appeal No. 758 of 1915, decided on 20th June 1916. He maintained the decree of the Court below upon the ground that the decree passed in 1905 was fatal to the two contentions of Shiam Sander Lal, namely, that the suit was barred by Act 23 of 1871 and that the judgment and decree, dated 2nd March 1903, were null and void. The learned Judge observed:
Whatever may be the merits otherwise of the case the passing of decree and the fact that Mt. Bilaso is a recorded cosharer in the revenue papers fully entitle her to bring the present case. The presumption is entirely in her favour.
11. On 20th May 1911, Hakim Shiam Sunder Lal appears to have brought a suit in the Court of the Subordinate Judge of Shahjahanpur against the Secretary of State for India in Council in which he claimed the following declaration and relief:
It may be established and declared that the plaintiff has proprietary rights in ten biswas of revenue free grant in each of the three mahals Nur Mohammad, Farrahat Fatima and Intizam Uddin situate in mauza Lakhanpur, pargana and district Budaun, each of the three mahals having recently been formed into a twenty biswa mahal and that the plaintiffs owned ten biswas in each of them and the name of the Government may be expunged.
12. It appears that sometime before the institution of the suit, the Government had resumed the muafi. The suit was resisted on the ground that it was not maintainable under Sections 5 and 6 of Act 23 of 1871. This plea was repelled by the Subordinate Judge, who decreed the suit. The High Court on appeal reversed this decision and dismissed the suit on the ground that the civil Court was not competent to make a declaration directly or indirectly affecting the liability of the Government to pay the revenue to the plaintiff. The Judicial Committee upheld the decision of the High Court with the following observations:
As regards the suit itself, it appears to be clearly misconceived. A competent civil Court is authorized under Section 6, to take cognizance of a claim in respect of "pensions and grants made by Government of money or land revenue" only on receiving a certificate from the authority mentioned in the section "that the case may be so tried." The object of this provision evidently is that in cases of conflicting titles, the revenue authorities should grant to the unsuccessful applicant an opportunity for adjudication of his right by the regular Courts of justice but it expressly declares that "the civil Court shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly".... 'The High Court have not interfered with the finding of the Subordinate Judge that the plaintiff was the nearest, male reversioner to Dalpat Rai but they were clearly right in setting aside the decree in so far as it affected the liability of Government in respect of the revenue of the muafi grant.
13. From the history of the previous litigations which have been referred to above, the following facts emerge with distinctness:
(1) That the status of the transferee of the original muafidars had been recognized by the Courts of revenue;
(2) That the names of the legal representatives of the transferee had been recorded in the revenue papers;
(3) That suits had been instituted by the heirs or legal representatives of the transferee aforesaid against the heirs of Dalpat Rai for arrears of revenue under Section 161, Agra Tenancy Act; and (4) That the suits were decreed, the plea of the defendants that the suit was barred under Act 23 of 1871 having been rejected.
14. There are certain other proceedings which may be incidentally mentioned. In a suit between Lal Bahadur plaintiff and Lala Babu, son of Jawahir Lal, a question arose as to whether the right to realize the Government revenue of mauza Mohammadpur Byar as assignees thereof was liable to be sold in pursuance of a mortgage decree. It was held by a Bench of this Court in Second Appeal No. 425 of 1923 decided on 20th February 1925 that the right of the mortgagors to the zemindari of this mauza was independent of the right to the realization of the Government revenue as assignees and that the latter right was not liable to be sold in execution of a mortgage decree. We are not called upon to make any pronouncement on this point as to whether we agree with this decision or we do not. The point does not arise in this case. There is an order of the Board of Revenue, dated 5th June 1922, passed on a petition from Shiam Sundar Lal and others praying for a restoration of the assignment of revenue of ten biswas of mauza Lakhanpur and for the payment of the arrears of revenue due to them. This petition was allowed in these terms:
The Governor-in-Council has been pleased to direct that the petitioners may be again recorded as assignees of ten biswas of mauza Lakhanpur and be put in possession from the coming revenue year; no arrears of revenue should, however, be paid to the assignees.
15. This order is capable of being interpreted as a fresh grant and we think that it should be so interpreted.
16. On 19th January 1922 a circular letter was issued by the Secretary to the Government of the United Provinces addressed to the Divisional Commissioners:
I am directed to inform you that the Government is advised that assignments of remissions of revenue granted for periods limited to the lifetime of the grantees or their immediate successors are in the nature of political pensions and should be treated as non-transferable. The Government is accordingly pleased to declare that all such pensions and assignments of revenue are not transferable, In the case of remissions of revenue, the result of this decision is, that, if the grantee transfer his proprietary right, the full revenue will be imposed with effect from the data of the transfer etc....
17. The above exhausts the vital documents produced in this case which directly or indirectly have a bearing upon the questions raised in this appeal.
18. The Court of first instance decreed the plaintiff's suit upon the grounds that the defendants were recorded in the revenue papers as muafidars (assignees) of the Government revenue and the plaintiffs as their (defendants') sub-muafidars and that the claim of the plaintiffs or their predecessors-in-title against the predecessors-in-interest of the defendants for recovery of arrears of revenue had been decreed in the year 1914.
19. The lower appellate Court has reversed this decision and dismissed the suit. It held that in view of the decision of the Privy Council dated 21st October 1919 in the suit between Hakim Shiam Sundar Lal and others v. Secretary of State for India in Council and of the decision of the High Court in Second Appeal No. 425 of 1923 dated 20th February 1925 which have already been referred to and in view of the very clear terms of the Pensions Act 23 of 1871, it is not... possible for this Court or for any revenue Court to entertain a suit of an assignee of Government revenue." 'Act 23 of 1871 is perfectly clear and I do not think that the equities of the case can require this Court to pass a decree requiring the revenue authorities to recognize an assignment, which is, under the substantive law illegal.
20. The decree of the lower appellate Court seems to be quite correct; but the reasoning upon which the decree proceeds is clearly erroneous and cannot be supported. The case before the Privy Council was not one between the assignee of the muafidars and the muafidars. The present plaintiffs were no parties to the suit. The title of the present plaintiffs was not and could not have been litigated in this action. The pronouncement of the Privy Council is no more than this that the civil Court is competent upon fulfillment of certain conditions to take cognizance of a claim in respect of pensions and grants by a Government of money or land revenue where there is or has been a conflict of titles in respect of the same. The power of the revenue Court to adjudicate upon the claim advanced by the transferee of the original assignee under Section 161, Agra Tenancy Act, was not considered either in this case or in Second Appeal No. 425 of 1923. These decisions therefore are no authority for the proposition that the suit like the present is not maintainable in the Court of revenue under Section 161, Land Revenue Act.
21. Section 161 of this Act provides that a muafidar or assignee of revenue may sue for arrears of revenue due to him as such. Section 166 provides that the words... "muafidar or assignee of revenue" in this chapter include also the heirs, legal representatives, executors, administrators and assigns of such persons. The transferee of the original grantee is therefore an assignee within the meaning of Section 161 of the Act. Sch. 4, serial No. 10, indicates the forum in which a suit of this description should be instituted and prescribes that where the value of the claim exceeds Rs. 100 the suit is triable by an Assistant Collector of the First Class and an appeal lies to the civil Court.
22. This, however, does not advance the case of the plaintiffs. The suit contemplated under Section 161 of the Act is one again3t persons who are primarily liable for the payment of Government revenue. The defendants are not the zemindars. They are not primarily liable to the Sovereign power for the payment of Government revenue and a suit like the present is not within the purview of Section 161, Agra Tenancy Act.
23. Act 23 of 1871 is an Act to consolidate and amend the law relating to pensions and grants by Government of money or land revenue. Section 4 provides that:
Except as hereinafter provided, no civil Court shall entertain any suit relating to any pension or grant of money or land revenue conferred or made by the British or any former Government, whatever may have been the consideration of any such pension or grant, and whatever may have been the nature of the payment, claim, or right for which such pension or grant may have been substituted.
24. This section does not take away the jurisdiction of the Court of revenue to entertain a suit by the transferee of the assignee of the land revenue. The jurisdiction of the civil Court and of the civil Court alone, is limited by the terms of this section. The nature of the limitation has been defined in the following two sections. Section 5 provides that any person having a claim relating to any such pension or grant may prefer such claim to the Collector of the District, or Deputy Commissioner, or other officer authorized in this behalf by the local Government, and such Collector, Deputy Commissioner or other officer shall dispose of such claim in accordance with such rules as the chief revenue authority may, subject to the general control of the Local Government, from time to time, prescribe in this behalf.
25. The words 'any such pension or grant" clearly indicate any pension or grant of money or land revenue referred to in the preceding section. This section authorizes the Collector or the Deputy Commissioner or other officer specially empowered by the Local Government to entertain a claim with reference to the grant of land revenue conferred by the former Government. The Local Government has the authority to call for evidence in support of the grant and may either recognize the grant or refuse to do so. The proceeding before the officers referred to in this section is more administrative than judicial. Section 6 provides that a civil Court, otherwise competent to try the same, shall take cognizance of any such claim upon receiving a certificate from such Collector, Deputy Commissioner or other officer authorized in that behalf that the case may be so tried but shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly.
26. This is an enabling section and empowers the civil Court to entertain a suit where conflicting claims are advanced with reference to the grant, upon the claimant producing a certificate from the officers specially named that the case may be so tried; but it bars a civil Court from making an order or decree in any suit whatever by which the liability of the Government to pay any such pension or grant is directly or indirectly affected. It is by reason of this section that the Privy Council held that the previous suit instituted by Shiam Sundar Lal and others against the Secretary of State for India in Council was not maintainable. This section does not forbid the institution of a suit by the transferee of the original grantee for recovery of arrears of revenue if instituted in a Court of revenue against a proper parson against whom a claim could be lodged for arrears of revenue.
27. It is unfortunate that the original farman by which the grant was made by Emperor Babar is not forthcoming. No document has been produced in this case in which the terms of the said grant have been reproduced or even summarized. It is clear, however, that the right was conferred upon the grantee in perpetuity and there is nothing to indicate that it was restricted to the personal enjoyment of the grantee or his heirs. In the absence of any restrictions or limitations a right to appropriate the Government revenue payable by the zemindars is a proprietary right and is, as such, heritable and transferable. Under Section 6, T.P. Act, property of any kind may be transferred except those enumerated in Cls. A to I. Under Clause (G) stipends allowed to military and civil pensioners of Government and political pensions cannot be transferred. This section does not prohibit the assignment of a pension, not granted or continued by Government on political considerations, or on account of past services, or present infirmities or as a compassionate allowance: see Subraya Mudali v. Velayuda Chetti [1907] 30 Mad. 153. The word 'pension' has nowhere been defined, but it ought to be understood in its ordinary sense as implying periodical allowance on account of past service, consideration or merit or by way of compensation to dethroned princes, their families and dependents: Secy. of State v. Khem Chand Jeychand [1879J 4 Bom. 432. (at p. 436); also Lachmi Narain v. Makund Singh, [1904] 26 All. 617; also Rama Rao v. Kottipi Thimma Reddi) [1920] 11 M.L.W. 398. A grant of land revenue as such cannot be comprised in the term 'pension.' A grant of Government revenue can in no case be created 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 the Sovereign power cannot be described either as a pension or as a political pension. Such a grant may be a hereditary grant as in the present case and partakes of the nature and character of a jagir. Its liability to resumption would be dependent upon the terms under which it was created and upon the will of the Sovereign power. Where a right of this description is created by contract or grant, its transferability will in each case depend upon the terms of the contract or grant, The assignment of such a grant is not prohibited by Section 12, Pensions Act. The rule of expendiency prohibiting the transfer of pension which is founded upon the idea of ensuring the enjoyment of the pension by the pensioners in comfort cannot be invoked in the case of an assignment of Government revenue which is not shown to partake the nature and character of a pension.
28. The suit of the plaintiffs, however, is clearly misconceived. It is not founded upon contract. There is no privity of contract between the parties to this action. It is not founded upon tort. There has been no violation of any legal duty which the defendants owe to the plaintiffs. Under these circumstances the lower appellate Court was justified in dismissing the plaintiffs' suit. The reasons, however, upon which the learned District Judge proceeded were clearly not justified. I would, therefore, confirm the decree of the Court below and dismiss this appeal.
Ashworth, J.
29. I concur in the dismissal of the appeal, but my reasons are somewhat different. The suit was one brought under Section 161, Agra Tenancy Act. That provides for a suit being brought by a muaifidar or assignee of revenue suing for arrears of revenue. This suit was not one of that character. It was brought not by an assignee of revenue, be cause assignee must clearly mean an assignee from Government. It was brought by the assignee of an assignee. Again, it was not brought for arrears of revenue but for money due from the defendants not as persons bound to pay revenue but as persons who had, had until the assignment in favour of the plaintiff, a right to realize revenue, an who had continued to realize that revenue from the zamindars notwithstanding their having assigned their rights to the plaintiffs. The suit should, therefore, have been dismissed straight away on the ground that no cause of action was shown for bringing a suit under Section 161.
30. Again, the suit was a bad one, in my opinion, because it was a suit relating to a grant of land revenue, and such a suit under Section 5, Pensions Act, must be determined by a revenue Court in accordance with the rules laid down by the chief revenue authority. No invocation of any such rule was made by the plaintiff, nor did the trial Court purport to act under any such rule. When the appeal came before the District Judge, that appeal was heard by the District Judge as a civil Court. This would bring into operation Sections 4 and 6, Pensions Act. The civil Court could not entertain the case except after receiving a certificate from the Collector authorizing it to try the case.
31. Again, the suit was based on an alleged assignment, which, in my opinion was null and void under Section 12, Pensions Act. It has been suggested that the word "pension" in Section 12 will not include a grant of land revenue, but it appears to me that this is not so. The Pensions Act is divided into four parts. Part 2 is headed "rights to pensions" and deals under that heading with grants of land revenue. Part 4 is headed by the term "miscellaneous," and it appears to me that the word "pension" is used throughout in it as including the subdivisions 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.
32. I fully agree with my learned brother that if no other objection stood in the way of this appeal, what is fatal to the plaintiffs is that they have never shown any cause of action against the defendants. What they allege is that the defendants after transferring to them the right to realize the assigned revenue have continued themselves to realize it. The suit would no doubt be maintainable if the plaintiffs could invoke the provisions of the Transfer of Property Act applicable to the seller of immovable property; for a purchaser of an immovable property is entitled to sue the seller for mesne profits or damages at the time of bringing a suit for obtaining possession on the basis of the sale. It is true that the definition of "immovable property" will include benefits to arise out of land. But a suit for mesne profits or for damages on account of trespass is not possible in the absence of unlawful retention of immovable property or trespass on immovable property. The plaintiffs in this case sue the defendants as persons unlawfully retaining or unlawfully seizing immovable property. The realization by the defendants of the revenue in this case does not appeal to me to give any cause of action to the plaintiffs Plaintiff's proper course will be to sue the zemindar ignoring the fact that they had paid the defendants.
33. There is one aspect of the case to which reference may be made. It appears that in previous litigation it was held that the defendants were bound by decrees against their father or grandfather under the rule of res judicata. This appears to me clearly untenable. Where a pension is granted from generation to generation one generation cannot be said to be the successor-in-interest of the last. At the very moment when the grant was made by Government a right arose in favour of each successive generation and the predecessor-in-interest of each successive generation was Government and not the father. It is obvious that when a person entitled merely in himself to a life-interest contests a suit in respect of that life-interest he cannot be representing some one entitled to a successive life-interest.