JUDGMENT
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.