JUDGMENT P.L. Bhargava, J.
1. I agree with the conclusions recorded by my learned brother, Desai J. and also with the order proposed by him. I would however, like to express my own views about the maintainability of the claim relating to the "muafi", which has also been described as "assignment of land revenue" and which is the "grant" of land revenue, within the meaning of the term used in Section 4, Pensions Act (NO. XXIII [23] of 1871).
2. The plaintiffs' suit, which has given rise to this appeal, related to specified shares in three items of property; viz., (1) a house in the city of Budaun; (2) the "muafi"; and (3) the sir land. The suit was instituted in the Court of the Civil Judge of Budaun; and the Court was competent and had jurisdiction to try the same. In view of the provisions contained in Section 4, Pensions Act, however, the Court could not entertain the suit, so far as it related to the "muafi", unless the procedure prescribed in Sections 5 and 6 of the Act had been followed; that is to say, the claim had been first preferred to the collector of the district, in which the property was situate, and the Collector had issued the certificate referred to in Section 6 of the Act. As the suit related to other property as well, the Court could not and did not refuse to entertain the same. After the suit had been instituted the claim relating to the "muafi" seems to have been preferred to the Collector, as he issued the necessary certificate, which was produced before the Court, while the suit was still pending. Thus the claim in respect of the "muafi" became cognizable by the Court, under s. 6 of the Act, which is in these terms;
"A Civil Court otherwise competent to try the same, shall take cognizance of any such claim upon receiving a certificate from such Collector...,.....".
3. The claim referred to in the section is a claim relating to any "grant" of land revenue; and the plaintiffs' claim in respect of the "muafi" was such a claim. As already stated, the Court entertained the suit, which also related to the "muafi"; and before the final adjudication of the claim, the required certificate from the Collector was produced before the Court. The Court was, there, fore, bound, in view of the provisions quoted above, to take cognizance of the claim relating to the "muafi." After taking cognizance of the claim the Court might have held it as barred by time; but that had nothing to do with the question whether the Court could entertain the suit or take cognizance of the claim in respect of the " muafi".
4. Section 4 of the Act, no doubt, lays down that " Except as hereinafter provided, no civil Court shall entertain any civil suit relating to any pension or grant of money or land revenue...";
but in view of the opening words, the section has to be read along with Section 6 of the Act. The words "upon receiving a certificate from such Collector" used in Section 6, clearly suggest that the certificate may not be filed along with the plaint and it may be received by the civil Court after the suit had been filed.
5. It has been argued that the receipt of the certificate must precede the institution of the suit; but this argument ignores the provisions of Section 6 and the opening words of Section 5. The present case is a clear instance, where the certificate, if received after the institution of a suit, will enable a civil Court to take cognizance of a claim relating to 'any pension or grant of money or land revenue." We have seen that, the suit had already been entertained and the certificate was produced thereafter. The Court was not 'precluded from receiving the certificate after the institution of the suit; on the other hand, in view of the provisions of Section 6, the Court was bound to receive it and take cognizance of the claim, which it otherwise could not. The Court had the jurisdiction to try the suit; but, having regard to the nature of part of the property in dispute, the Court could not take cognizance of the claim in respect of that particular item of the property in suit, unless the formalities laid down in Sections 5 and 6 of the Act had been observed. These formalities could have been gone through before the final adjudication of the claim; and there was no legal bar against the plaintiffs moving the Collector for obtaining the required certificate after the institution of the suit.
6. The view expressed above is supported by a decision of this Court in Ihtisham Ali v. Shaym Sunder, 25 ALL. 73 : (1902 A. W. N. 187). In that case the dispute related to a mortgage of "assignment of land revenue." The plaintiff had applied to the Collector for the necessary certificate, but he had replied that no certificate was necessary. The suit on the mortgage was then filed without any certificate; and it was dismissed by the trial Court on that ground. When the matter came up to this Court, the plaintiff was allowed time to apply again to the Collector for the issue of a certificate. As no certificate was filed, the appeal was dismissed.
7. There is another case, which came up to this Court and in which the plaintiff was allowed to produce the certificate at the appellate stage. The case is reported in Ganpat Rao v. Anand Rao, 28 ALL. 104; (1905 A. W. N. 206). After the certificate was produced in that case, the decree passed by the trial Court was upheld. The case went up to the Privy Council and no further objection to the validity of the decree was taken on the ground that the certificate had not been filed at the time of or before the institution of the suit. The judgment of the Privy Council is reported in Ganpat Rao v. Anand Rao, 32 ALL. 148 : (5 I. C. 689 P. C.).
8. The Lahore High Court had taken a similar view in Barkatullah v. Fasihullah, 82 I. C. 486 : (A. I. R. (12) 1925 Lah. 113). In that case the Collector had directed the plaintiff to file a civil suit but had not issued the certificate in proper form, and the plaintiff had instituted the suit without any certificate. There also the appellate Court allowed the plaintiff time to produce a proper certificate.
9. The Chief Court of Avadh also took a similar view in Mohammad Ata Husain v. Baqar Mirza, A. I. R. (24) 1937 Oudh. 484 : (13 Luck 584). In that case the trial Court had dismissed the suit as the required certificate had not been obtained or filed at the time of the institution of the suit. The certificate was allowed to be filed in appeal, and Srivastava C. 3, and Ziaul Hasan J. observed:
"The non-production of the certificate is a defeat of a technical character. -It would be taking a much too stringent view of the provisions of Section 6, to hold that the Civil Court is debarred from taking cognizance of such a claim even though the certificate has been produced subsequently, if it was not produced at the time of the institution of the salt." Strictly speaking, the non-production of the certificate cannot be considered "a defect of a technical character;" bat, when the certificate is received by the Civil Court from the Collector or it is produced before the Court before the final adjudication of the claim, the Court can, undoubtedly, take cognizance of the claim, as provided in Section 6 of the Act. In my opinion, therefore, the certificate, which was filed during the pendency of the suit, was sufficient to enable the trial Court to take cognizance of the claim relating to the "muafi".
10. The trial Court could take cognizance of the claim, relating to the "muafi", when the certificate was filed before the Court; but not before that. It, however, appears that when the certificate was produced the claim had already become barred by time. Consequently, the plain. tiff's claim in respect of the "muafi" should have been rejected.
Desai J.
11. This is a defendants' appeal from a decree for declaration, possession and mesne profits. The following pedigrees are admitted by the parties :
HAKIM SAIDUDDIN (Husband of Badrn-Niaan) ___________________________________|_____________________________ | | | | | Raziuddin Abdul Muzaffar Rashiduddn Alfmun Niaan Fakhran Niaan | (Died 27th or 12th | (Plff.2) (Died in 1937) Fashihuddin and Fobruary 1930) | | | A other(all defte.) | Abbas alias Said Ahmed Mohd. Amin (plff.1) | ________________________________|__________________________ | | | | | | Rafiuddin Shafiuddin Zaqiuddin Mamun Khatoon Khudaija Atiqun-niaan (Deft.1) (Deft.2) (Deft.3) (Deft.5) (Deft.4) (Deft.6) (2) ZULFIQAR ALI __________________________|_______________________ | | | Badrun-Niaan Mohain Ali Mohamid Ali (Wife of Said-Uddin) (Husband of Shafiunisan) (Husband of Mustazad Begham) (See above) (No issue) (No issue)
12. Zulfiqar AH died leaving property in village Deorijit, a house and a moiety in a grove. He was survived by his three children and widow; but the names of his two sons only were entered in the village records. Then Mohsin Ali died leaving as his heirs Shafiunnisan, Badrun-nisan and Mohamid Ali and there arose disputes among them. The three heirs appointed Sharaf Ali as an arbitrator to decide the disputes and Sharaf Ali gave his award, Ex. A-81, dated 31st December 1882. Under the award, Shafiunnisan was to remain in possession of the whole property standing in the name of Mohsin Ali during her life but without any right of alienation, on her death it was to be inherited equally by Mohamid Ali and Badrun-nisan and after their deaths it was to be inherited by the male issues of Badrun-nisan, namely, Raziuddin, Abdul Muzaffar and Rashiduddin, is equal shares. Hafiz Mohammad Ali and Badrun-nisan also had no right of alienation. The award was accepted by all the three heirs. Accordingly, when the survivor out of Badrun-nisan and Mohamid Ali died, the property was inherited in equal shares by Raziuddin, Abdul Muzaffar and Rashiduddin, to the exclusion of their sisters. It is Abul Muzaffar's one third share in this property which is in dispute before us. Abdul Muzaffar along with his brothers and sisters also inherited property from his father Saiduddin; that property is zamindari property in village Parhwa. It may be known as paternal property in order to distinguish it from the property of Zulfiqar Ali which may be known as maternal property.
13. Abdul Muzaffar died in February 1930 according to the plaintiffs he died on 27th and according to the defendants he died on 12th. This dispute about the date is important as it affects the question of limitation. Abdul Muzaffar's sisters got their legal shares in the paternal property left by Abul Muzaffar and got their names recorded in the khewat of village Parhwa. Originally the name of Alimun Nisan was not mutated in the khewat and she made an application on 11th September 1980 for correction of the khewat. Rashiduddin and Faqrun-nisan admitted that her name was left out erroneously, vide their written statement dated 28th October 1930, and the Court ordered on 30th October 1930 that her name also be entered in the khewat. As regards the maternal property no mutation was ordered in favour of the sisters at all. It appears that there was no application for mutation by them or by Rashiduddin, instead there were reports for mutation made by the village patwari. Raziuddin had predeceased Abdul Muzaffar and Rashiduddin and his two sisters were the only heirs of Abdul Muzaffar. In the reports, however, the patwari mentioned only Rashiduddin as the heir of Abdul Muzaffar. There was no contest in the mutation Court and Rashiduddin's name was mutated vice Abdul Muzaffar on the basis of the reports. In 1933 the sir land in village Deorijit was partitioned among Rashiduddin, Riazuddin and his sons.
14. On 8th March 1940, Mohammad Amin, plaintiff, made an application for correction of the khewat of village Daorijit requesting that his name should be entered as the legal representative of his mother Faqrun-nisan. Rashiduddin had died and the application was contested by his children. They alleged that on Abdul Muzaffar's death mutation was ordered solely in favour of Rashiduddin, that on his death it was ordered solely in their names in accordance with the law, that the application was not maintainable in law, that the applicant's remedy was in a civil Court and that he was not in possession. The application was dismissed on 19th December 1940, the Court observed that if Faqrun-nisan had any claim in the property left by Abdul Muzaffar, she should have agitated it in a civil Court or gone in appeal against the order granting mutation exclusively to Rashiduddin and that when she herself did not claim mutation in her life time it was not open to the applicant to do so after her death and that too by way of correction of the khewat.
15. In 1941, the children of Rashiduddin sued Raizuddin for their shares in the land revenue. The property in Deorijit is really an assignment of the land revenue. It is alright to realize the land revenue from the proprietors by way of assignment from Government. The suit was for l/6th share in the land revenue. It was contested on the ground that the plaintiffs' share was only l/8th. The contention of the children of Rashiduddin was that on the death of Abul Muzaffar his share was inherited solely by Rashiduddin while the contention of Riazuddin was that it was inherited by him and his two sisters jointly. An issue about the extent of the share of Rashiduddins's children was struck by the revenue Court and referred to a Civil Court for its finding. As a matter of fact it was the sole issue in the suit. Rafiuddin was examined as a witness; he deposed that Rashiduddin inherited the property of Abul Muzaffar, that according to the terms laid down in the arbitration award of 1882, half the income of the property was utilized in reciting fateha of Abul Muzaffar and his widow, that the two sisters of Abdul Muzaffar had no right in the property, that on the death of Abdul Muzaffar the names of his sisters and Rashiduddin were entered over village Parhwa and that with the consent of the sisters the name of Rashiduddin alone was entered over the property in village Deorijit. This statement was made on 10th April 1942, and on 15th April 1942, the Civil Court gave its finding that the share of Rashiduddin in the property was only l/8th.
16. The present suit was instituted by Alimun-nisan and Mohammad Amin on 16th February 1942. The plaintiffs claim their share in the maternal property left by Abdul Muzaffar.
17. The suit was contested by the children of , Rashiduddin. They pleaded that the suit was barred by time, that under the award of 1882 the plaintiffs were barred from claiming a share in the property, that on the death of Abul Muzaffar his sisters claimed a share in the maternal property, that it was denied by Rashiduddin in view of the award of 1882, that Rashiduddin even denied the right to inherit the paternal property so long as he was not paid the money that was due to him from the estate of Abdul Muzaffar, that after negotiations and at the intervention of respectable persons the matter was compromised and an oral family agreement was arrived at by which the sisters were given their legal share in the paternal property in lieu of their relinquishing the share claimed by them in the maternal property, that the family agreement was acted upon and mutation was ordered in the village records accordingly and that the suit was brought at the instance of Riazuddin who was being sued by the defendants. They also pleaded that no suit could be filed under the Pensions Act without the Collector's certificate in respect of the assignment of land revenue. They took other pleas which have now been given up. The lower Court rejected all the pleas taken by them and gave a decree to the plaintiffs for their half share in the property in dispute. [After discussion of the evidence as to date of death of Abdul Muzaffar, the judgment proceeds as follows:]
18. The property in village Deorijit is assignment of land revenue and sir plots. Section 4, Pension's Act, XXIII[23]of 1871, is to the effect that "Except as hereinafter provided, no civil Court shall entertain any civil suit relating to any pension or grant of money or land revenue conferred or made by the British or any former Government."
Section 5 states that any parson having a claim relating to any such pension or grant may prefer it to the Collector of the district who will dispose of it in accordance with the rules framed by Government. Section 6 is to the effect that "A civil Court, otherwise competent to try the same, shall take cognisance of any such claim upon receiving a certificate from such Collector."
As the plaintiffs claim a share in the assignment of land revenue, they could not file the suit in respect of it without a certificate of the Collector. The lower Court seems to have been misled by certain authorities which were irrelevantly place-ed before it. Section 11 of the Act exempts a pension, from seizure," attachment or sequestration by process of any Court and the authorities only lay down that assignment of land revenue is not pension within the meaning of that section. It certainly is not. That is clear from the words of Section 4 itself which mentions pension and grant of land revenue separately. The lower Court ought to have read Sections 4 and 6 instead of relying solely upon the authorities.
19. The limitation for the plaintiffs' suit expired on 27-2-42. The suit was filed just in time on 16-2-42. When the defendants took the plea that the suit was not maintainable without the Collector's certificate, the plaintiffs obtained a certificate from the Collector on 24-6-42 by which date the limitation had expired. It was argued on behalf of the plaintiffs that the want of a certificate is only a technical irregularity and that it can be obtained later. The words of Sections 4 and 6 do not at all support this argument. They are as emphatic as they could be and there is no doubt that they absolutely bar a Civil Court's entertaining a suit without the Collector's certificate. The existence of a certificate of the Collector is the condition precedent to a Civil Court's assuming jurisdiction over a suit. If there is no certificate, it has no jurisdiction over the subject-matter. Thus the absence of a certificate goes to the root of the jurisdiction and is not a defect which can be waived or can be remedied at a later stage in the suit. The plaintiffs relied upon (1) Ihtisham Ali v. Shyam Sunder, 25 ALL. 73 : (1902 A. W. N. 187). (2) Ganpat Rao v. Anand Rao, 28 ALL. 104: (1905 A. W. N. 206) Barkatullah v. Fasihullah, 82 I. C. 486 : (A. I. R. (12) 1925 Lah. 113), and Mohammad Ata Husain v. Baqar Mirza, A. I. R. (24) 1937 Oudh 484 : (13 Luck 584). The first was a suit for foreclosure of a mortgage of assignment of land revenue, the plaintiff had applied to the Collector for his certificate, the Collector had replied that no certificate was necessary and so he sued without a certificate. The suit was dismissed on account of there being no certificate. The plaintiff came up in appeal to this Court which gave him time to apply again to the Collector for a certificate and produce it. He failed to produce it and his appeal was dismissed. No question of limitation seems to have arisen in that suit and was not discussed at all. Moreover, the plaintiff's suit was ultimately dismissed, whatever might have been done by the appellate Court before dismissing it. I cannot indulge in any surmise as to what it might have done it the plaintiff had obtained a certificate within the time allowed by it. In the second case the plain. tiff's suit was decreed even though he had obtained no certificate from the Collector, the appellate Court allowed him to produce it before it and the decree was maintained. The suit was one for partition and there did not arise any question of limitation. The defendant went up to the Privy Council, and the judgment of the Privy Council is reported in Ganpat Rao v. Anand Rao, 32 ALL. 148 : (5 I. C. 689 P. C.) He did not question the propriety or validity of passing a decree in suit instituted before the certificate was obtained; he confined his appeal to another property which was not covered by the Pensions Act. The Privy Council, therefore, did not decide the question of the validity or effect of a post facto certificate. In the third case, the plaintiff first lodged a claim before the Collector under Section 5, the Collector directed him to file a civil suit but did not issue a certificate in proper form and the plaintiff sued without any certificate. On these facts the appellate Court allowed him time to produce a proper certificate. It was a suit for declaration and no question of limitation was raised in arguments. It is not known whether the limitation foe the suit had expired or not. Nor is it known what happened subsequently. The fourth was a suit for accounting on the basis of a claim to a political pension. No certificate of the Collector wag obtained and the trial Court dismissed the suit. During the pendency of his appeal, the plaintiff obtained a certificate from the Collector which allowed him to establish his claim in the appeal. It was contended before the Chief Court of Oudh; that the certificate obtained during the pendency of the suit was of no effect. Srivastava C. J. and Ziaul Hasan, J. dismissed the contention stating--
"The non-production of the certificate is a defect of a technical character. It would be taking a much too stringent view of the provisions of Section 6 to hold that the Civil Court is debarred from taking cognisance of such a claim even though the certificate has been produced subsequently, if it was not produced at the time of the institution of the suit."
They thought that the view taken in the cases of Ihtisham Ali, (25 ALL. 73 : 1902 A. W. N. 187) and Ganpat Rao, (28 ALL. 104 : 1905 A. W. N. 206), "was substantially just and may also be accepted without any violence to the terms of the section." Ultimately they remanded the suite for retrial because it was necessary to get the plaint amended in some other connection. I find myself unable to agree with the observations quoted above. The absence of a certificate goes to the root of the jurisdiction and, with respect to the learned Judges, cannot be treated as "a defect of a technical character." Sanction is required for prosecution of many offences and it has invariably been held by all Courts including the Federal Court that the defect of taking cognisance of an offence 'without a sanction cannot be cured by obtaining a sanction during the trial. The same principle should hold good in a civil suit because nothing depends upon the nature of the proceeding, whether it is civil or criminal. I am, however, not called upon to decide the effect of a sanction obtained during the pendency of a suit but before the expiry of the limitation for the suit; I reserve my judgment on that question. I am concerned in the instant case with a certificate obtained after the expiry of limitation and I have no hesitation in saying that it is of no effect The cause of action was dead when the certificate was issued by the Collector. The Act does not authorise him to revive it by issuing a certificate. According to Section 6, the cognisance of a claim can be taken only upon receiving a certificate and if by the time a certificate is received the period of limitation has expired, the Court is precluded from taking cognisance of the claim. So the trial Court could not take cognisance of the claim in respect of the assignment of land revenue, before 27th February 1942 because there was no certificate and, after that date, because the limitation had expired. The claim in respect of this property most therefore, fail.
20. It is not the defendants' case that the plaintiffs are barred by the award from inheriting from Abu! Muzaffar. The daughters of Raziuddin and Rashiduddin have inherited shares in the maternal property of Raziuddin and Rashiduddin. The defendants, however, seek to deprive the plaintiffs of their share in the inheritance on the ground of surrender through the oral family settlement or agreement of 18th February 1930. This family settlement is completely denied by the plaintiffs. [After discussion of the evidence with regard to family settlement the judgment proceeded as follows:]
21. I am of the opinion that there was no family settlement and that the plaintiffs were entitled to their one half share in the maternal property excluding the assignment of land revenue.
22. There is a cross-objection by the plaintiffs, but their counsel did not address us on it. Apparently he did not want to press it.
23. I would partly allow the appeal and dismiss the claim in respect of muafi property described in list B, serial Nos. 1 to 4, and maintain the rest of the decree passed by the lower Court, dismiss the cross-objection and leave the parties to bear the costs of the appeal themselves.
24. The appeal is allowed in part and the plaintiffs' claim in respect of the "muafi", described in list B, serial Nos. 1 to 4, appended to the plaint, is dismissed. In other respects the decree of the trial Court is maintained. The cross-objection is dismissed. The parties will bear their own costs of this appeal as well as of the cross-objection.