ORDER Iqbal Ahmad, Bajpai and Ismail, JJ.
1. This appeal arises out of a suit for a declaration that the muafi properties in villages Pipla Jagir and Bijai Nagla,...are non-transferable under the Pensions Act (No. 23 of 1871) and are not attachable and saleable in execution of the decree in suit No. 706 of 1932 passed by the Court of the Munsif of Bijnor, which was not a competent Court, (for enforcement of the hypothecation lien.)
2. On the hearing of this appeal by the Division Bench, it appeared that certain questions of law of great importance were involved in the case and that the judicial decisions on those questions were not re-concilable. The Division Bench accordingly referred the case to a Full Bench and his Lordship the Chief Justice was pleased to constitute the present Full Bench of three Judges. The questions that have been partly argued before this Bench are firstly, whether in view of the provisions of Sections 4 to 6, Pensions Act there is an inherent want of jurisdiction in Civil Courts to entertain suits relating to pensions, and secondly, whether even after a decree for sale of pension has been passed by a Civil Court it is open to the judgment-debtor to question the right of the decree-holder to sell the pension in execution of the decree. On the former question there is a Division Bench ruling of this Court in Lakhmi Chand v. Madho Rao (1930) 17 AIR All 681 in which the general proposition has been laid down that all decrees passed by Civil Courts relating to pensions are without jurisdiction if the suit was entertained by the Civil Court without a certificate from the Collector. That case is an authority for the proposition that the doctrine of res judicata is inapplicable in such cases and, notwithstanding the decree passed by the Civil Court, it is open to the pension-holder to file a fresh suit questioning the validity of the decree on the ground that the subject-matter of the suit was pension and therefore the Civil Court had no jurisdiction to entertain the suit. The contrary view has been, if not expressly at least impliedly, expressed in a number of cases. It has been laid down in Chinnapa Reddi v. Srinivasa Rao Garu (1935) 22 AIR Mad 835 that there is a distinction between an inherent want of jurisdiction in a Court and want of jurisdiction on grounds which have to be determined by the Court itself. The first makes a decree a nullity which can be ignored and need not be set aside. The second does not make the decree a nullity but only voidable; such a decree can be set aside by adopting the proper procedure, but cannot be collaterally impeached.
3. Two of the Judges constituting this Bench are at present disposed to differ from the case in Lakhmi Chand v. Madho Rao (1930) 17 AIR All 681 whereas one of the Judges at present is inclined to agree with that decision. If the question whether the decision of the Civil Court under the circumstances mentioned above operates as res judicata is decided by the present Bench the decision will be of two Judges to one. The result will be that three Judges of this Court will be of one opinion and two of the three Judges constituting this Bench will be of another opinion. This does not appear to be desirable and this anomaly can be avoided only by the constitution of a larger Bench. Further, for the decision of this appeal, it would be necessary either to agree or to disagree with the Full Bench decision of this Court in Katwari v. Sita Ram (1921) 8 AIR All 118. That case was decided by a Bench of three Judges. In the Full Bench case in Cantonment Board, Muttra v. Kishan Lal (1934) 21 AIR All 609 one of the Judges constituting the Bench expressed doubt as to the correctness of the decision of the Full Bench in Katwari v. Sita Ram (1921) 8 AIR All 118. Further, in the Division Bench ruling of this Court in Tahir Hasan v. Chander Sen (1935) 22 AIR All 678. Rachhpal Singh J. also doubted the correctness of the Full Bench in Katwari v. Sita Ram (1921) 8 AIR All 118. One of the Judges constituting the present Bench also is not very happy about the last mentioned Full Bench decision. This also renders it desirable that the present case be decided by a larger Bench. We accordingly direct that the case be laid before the Hon'ble the Chief Justice with the request for constitution of a larger Bench.
JUDGMENT Thom, C.J.
4. This is a plaintiff's appeal in a suit in which the plaintiff claimed a relief in the following terms:
It may be declared that the muafi properties in villages Pipla Jagir and Bijai Nagla, pargana Burhpur, District Bijnor, are non-transferable under the Pensions Act No. 23 of 1871 and are not attachable and saleable in execution of the decree in Suit No. 706 of 1932 passed by the Court of the Munsif of Bijnor, which was not a competent Court, (for enforcement of the hypothecation lien).
5. The plaintiff granted a mortgage to the defendant over the properties mentioned in the relief on 24th September 1930. The defendant in Suit No. 706 of 1932 obtained a decree on the basis of a mortgage deed on 1st September 1932. The suit was undefended and the decree became absolute on 27th May 1933. In the present suit the plaintiff seeks to evade his liability under the aforementioned decree. He alleges that the property mortgaged was inalienable and further that the decree obtained by the defendant on the footing of the mortgage is null and void in respect that the defendant did not obtain the sanction of the Collector before instituting his suit on the mortgage as required by Section 6, Pensions Act of 1871. The plaintiff's material averments are as follows:
The land revenue of the muafi property mortgaged was granted by the Moghul Emperor, Jahandar Shah, to Saiyid Miran Khan alias Saiyid Abdur Rasul, a Shahi Mansabdar, the common ancestor of the plaintiff, by way of a jagir in recognition of his services. The British Government recognized the said grant as a royal grant and maintained and confirmed the grant in favour of Saiyid Farzand All, Saiyid Imdad Husain, Saiyid Muhammad Husain and Saiyid Ali Husain, heirs of Saiyid Miran Khan alias Abdur Rasul, the original royal grantee, by issuing a tauris (a notification relating to inheritance): the said grant being a grant of land revenue by a Moghul Emperor, the muafi property in mauza Pipla Jagir and mauza Bijai Nagla...comes within the definition of a 'pension' and that accordingly the mortgage of the said property was invalid in virtue of the provisions of Section 12, Pensions Act of 1871.
6. The defendant in his written statement denied that the muafi property mortgaged was governed by the provisions of the Pensions Act of 1871. He averred that the plaintiff had executed a simple mortgage of the property in his favour on 27th June 1929, and that this mortgage was renewed by the grantee on 24th September 1930. He further averred that the plaintiff had made frequent transfers of the property in suit and has assured him (the defendant) "that he was the owner of and competent to transfer the property aforesaid." The learned Munsif in the trial Court upon a consideration of the documents produced by the plaintiff and of certain historical matter contained in such works as Vincent Smith's Akbar and Baden Powell's Land System of British India held that the villages Pipla Jagir and Bijai Nagla were released in perpetuity in favour of the descendants of Miran Khan Mansabdar...that the mortgaged property under the deed of 24th September 1930 is muafi Jagir and is an assignment of revenue only in recognition of the services as Mansabdar and is a pension within the meaning of Section 11 and therefore not transferable under Section 12 of Act 23 of 1871.
7. The learned Munsif further repelled the defendant's plea that the suit was barred by Section 47, Civil P.C. In the result he decreed the suit. The learned Civil Judge in the lower Appellate Court has recalled the order of the learned Munsif and dismissed the suit. Upon a consideration of the evidence upon the record and of the various historical authorities which were referred to in the Court of the learned Munsif he held that the property in suit in villages Pipla Jagir and Bijai Nagla was a muafi haqiyat and the rights therein of the plaintiff had not their origin in the grant of a pension to Miran Khan. In the course of his judgment he remarks:
But there was nothing in the record to show and to prove to the satisfaction of the Court that the said Jagir was really granted by the Emperors Jehandar Shah and Mohammad Shah to Miran Khan, Fakhru-ud-din and Muzaffar Ali in lieu of any military services, and that the same was, in fact, a pension. The plaintiff's case was that the grant in favour of Niran Khan was really a grant of land revenue, and not of the villages themselves. But from the perusal of the order of the special commissioner dated 28th January 1843, A.D., it appeared that it was really a jagir of villages Pipla, Bijai Nagla, Shamspur, and Chik Sharif, which had been granted, and that the same was muafi. Therefore I was constrained to hold that the plaintiff's ancestors were really the muafidars of certain villages, and that the same muafi was also duly recognized by the British Government in 1843 A.D. and as such that could hardly be assumed as a pension under the provisions of the Pensions Act of 1871 A.D.
8. The learned Civil Judge later also observes:
There was also evidence in the case that these muafi haqiyats were always and regularly sold or mortgaged by different muafidars to other persons, and that those transfers were also recognized by the British Government and there was an overwhelming documentary evidence present in the record to show that the plaintiff himself, his ancestors and his other relations had made various and different transfers of their muafi haqiyats.
9. The finding of the learned Civil Judge upon the main question in issue between the parties namely as to the nature of the rights held by the plaintiff and mortgaged by him to the defendant is in my judgment clearly a finding in fact which cannot be disturbed in second appeal. It is true the learned Judge in reaching his decision had to consider and interpret a number of ancient documents. It cannot be said however that he has misinterpreted any of these documents. Be that as it may, his conclusion that the plaintiff's right in the villages of Pipla Jagir and Bijai Nagla are not connected with any grant of pension within the meaning of the Pensions Act is essentially a finding in fact. It is no less a finding in fact because in reaching his decision the learned Judge had to interpret a number of documents: see Wali Mohammad v. Mohammad Bakhsh (1930) 17 AIR PC 91 at p. 295, and, in my judgment, this was the only finding which the evidence justified. The plaintiff had represented to the defendant that he held muafi rights in the aforesaid villages which he was entitled to mortgage and which in fact he did mortgage. The onus was therefore upon the plaintiff to prove that these rights were inalienable. The plaintiff in my judgment has failed completely to discharge this onus.
10. In appeal the documents relied upon by the plaintiff were as follows: Firstly, the deed conferring mansab on Miran Khan dated 1712. Under the terms of this document Miran Khan's rank was to be maintained by one hundred cavalry. The document makes no reference whatever to any grant of pension or land revenue. Reliance was placed in the second place upon a document under which the sons of Miran Khan were granted "two lakhs dams as jagir." This grant was apparently for services to be rendered. The third document upon which the plaintiff founded was a grant of the year 1724 of "15,942 dams in the Mirpur pargana, Mahal Qadim Saiyed Muzaffar Ali, son of Saiyed Fakhruddin...." This grant appears also to have been in respect of services to be rendered. The plaintiff further relied upon a document of the year 1744 which is a grant in the following terms:
1,40,378 dams in the said pargana, Rajapur, has by the removal of the name of Saiyed Fakhruddin been granted to Saiyed Muzaffar Ali, son of Saiyed Fakhruddin, as Jagir....
11. It would appear from this document that certain remuneration which had been granted to Fakhruddin was thereunder granted to his son Saiyed Muzaffar Ali. Finally the plaintiff relied upon a partition deed alleged to have been executed by Saiyed Ahmad and Saiyed Fakhruddin, sons of Miran Khan. Under this deed certain dams are divided between the two sons of the executants. Under this deed Muzaffar Ali, the ancestor of the plaintiff, was allotted six thousand dams in village Pipla and four thousand dams in Bijai Nagla. It was maintained for the plaintiff that these documents showed that the property in the villages in suit now held by the plaintiff had its origin in the grant of land revenue to Miran Khan.
12. It is to be observed in the first place that, as already noted, there is no reference in any of the documents to the grant of a pension or land revenue to Miran Khan. Furthermore, the grants to Miran Khan's sons Saiyed Ahmad and Fakhruddin would appear to have been grants in respect of services to be rendered and it would appear further that when these services ceased the remuneration ceased. It is impossible to explain otherwise the grant of 1,40,378 dams to Muzaffar Ali "by the removal of the name of Saiyed Fakhruddin." It was contended that this grant may have simply been a recognition to Fakhruddin's right to inherit the property. This argument must fail. If Muzaffar Ali had inherited certain property upon the death of his father a recognition of that inheritance would not have taken the form of a fresh grant and furthermore it is to be observed that under this grant Muzaffar Ali takes under one and a half lakhs dam whereas two lakhs dams as jagir were granted to Fakhruddin in the original farman in favour of Saiyad Ahmad and Fakhruddin. It is further to be remarked that the aforementioned partition deed was executed by Saiyed Ahmad and Fakhruddin in the year 1757, that is at least 13 years after the grant to Muzaffar Ali "by the removal of the name of Saiyed Fakhruddin." If Muzaffar Ali had taken in 1744 what had been granted to Fakhruddin there would have been no necessity for the execution of a partition deed in the year 1757. Here also it is to be observed that what is allotted to Muzaffar Ali under the partition deed is not the same, so far the number of dams is concerned, as was granted to him in 1744.
13. There is a further document upon record which is referred to by the learned Civil Judge in the course of his judgment, viz., the order of the Special Commissioner of the year 1843. The Deputy Collector, 3rd Division of the Bareilly Circle, acting under Regn. 2 of 1819, had resumed the muafi properties held by the plaintiff's predecessor in the villages in suit. An appeal was preferred to a Special Commissioner who reversed the decision of the Deputy Collector and released the properties. It is abundantly plain from the judgment of the Special Commissioner that what was claimed by the plaintiff's predecessors in the villages Pipla and Bijai Nagla was Lakhiraj or a revenue-free property. The Commissioner observed in the course of his judgment:
The appellants file an appeal against the above order on the grounds that the said muafi is an old imperial grant and has up to this time been continually in possession and occupation of the muafidars and their ancestors by right of inheritance, and has been recognized by the Raiyses of Rohilkhand and Rulers of Oudh.
14. The learned Commissioner placed special reliance upon five sanads which were produced by the plaintiff's predecessors. These Sanads related to the Lakhiraj villages of Sahaspur and Seohara. Sahaspur is referred to as a village in the Commissioner's order. It is referred to however as a pargana in the documents earlier considered. Villages Pipla and Bijai Nagla are or were included in Sahaspur pargana. In his order the Special Commissioner set aside the order of the Deputy Collector and directed that the muafi be restored to the appellant for ever...and the profits of the said muafi deposited in the Government Treasury from the date of possession of the Government be refunded to the appellant.
15. It is clear what was claimed in 1843 was revenue-free land, not a pension which had its origin in a grant of a pension by way of assignment of land revenue. It was maintained for the plaintiff that the plaintiff's predecessor had acquired zamindari rights in the villages of Pipla and Bijai Nagla and that this fact explains the nature of their claim in 1843. No information however as to how and when these zamindari rights were acquired was forthcoming. In other words, the plaintiff was unable to produce his title deeds. Furthermore, he did not produce five sanads which were produced before the Deputy Collector and Special Commissioner in 1843. He produced these more ancient documents which are in the nature of farmans and which were not apparently produced before the Deputy Collector and the Special Commissioner in 1843. No satisfactory explanation was given as to why the aforementioned sanads have not been produced in the present proceedings. In this state of the evidence, it is impossible to hold that the muafi rights of the plaintiff in the villages of Pipla and Bijai Nagla have any connexion with the grant of a specific number of dams in these villages either in favour of Miran Khan or in favour of his descendants. It may well be that Miran Khan and his descendants were remunerated in respect of services which they rendered by the allocation in them of a certain number of dams out of the revenues of the parganas in which the two villages of Pipla and Bijai Nagla are situated: but the evidence produced in these proceedings does not warrant the conclusion that the rights of property in those villages now held by the plaintiff are of the same nature and extent as the rights granted to Miran Khan and his successors. What the British Government recognized in 1843 was the rights of the plaintiff's predecessors to Lakhiraj or revenue-free land in the two villages. This right is certainly not a pension or a grant of land revenue. I am in agreement therefore with the learned Civil Judge in the conclusion which he has reached which, as already observed, is a finding in fact. In the result I would dismiss the appeal with costs.
Ganga Nath, J.
16. I concur.
Collister, J.
17. I agree with the conclusions of the learned Chief Justice. In my opinion Suit No. 706 of 1932 was not a suit "relating to a pension or a grant of revenue" as contemplated by Section 4, Pensions Act. Nor was it concerned with a pension within the meaning of Section 11 of the Act. There are farmans on the record which show that in l712 Miran Khan, the ancestor of the plaintiff, was invested with a certain rank which entitled him to have a sword, a drum, a khilat and a body of cavalry. In 1721 the sons of Miran Khan, including Fakhruddin, were each given "two lakhs of dams as jagir" and a body of cavalry. In 1724 a grant of 15,942 dams was allotted to Muzaffar Ali, the son of Fakhruddin. In 1744 a jagir of 140,378 dams was granted to this same Muzaffar Ali "by removal of the name of Fakhruddin." The farman shows that this sum was distributed among four parganas. Presumably these grants were for services rendered or to be rendered. In each case the amount was different and there is nothing to show that they were intended to be heritable. Then we have a partition deed of 1758 or thereabouts under which Fakhruddin and his brother purported to divide their jagir between their respective sons, Syed Ahmad and Muzaffar Ali. In the distribution of Muzaffar Ali's share we find 6000 dams against the village Pipla and 4000 dams against the village Bijai Nagla. After the partition deed there is no document available for nearly a hundred years. The next document is a rubkar of a Special Commissioner dated 30th March 1893 by which time these territories had been ceded to the British. It appears that after an inquiry under Regulation 2 of 1819 the revenue on the muafi land had been resumed and this property had been taken possession of by Government. The ancestors of the plaintiff appealed against that order of resumption on the ground that the said muafi is an old imperial grant and has up to this time been continually in possession and occupation of the muafidars and their ancestors by right of inheritance....
18. The claim was for the release of 2463 bighas of muafi in Bijai Nagla. The Commissioner, relying mainly on the copies of five sanads, held that "the genuineness and the antiquity of this muafi" were conclusively proved and he traced its origin back to the time of Miran Khan. He says:
...it is clear the muafi in question is ancestral and an old grant from the Emperor and has been in possession of the muafi-holders for more than 100 years and the facts on the record amply prove it.
19. Further on he says that the persons then in possession "have been in possession thereof by right of inheritance from their fathers" and that the five sanads and other documents "go to prove that the muafi-holders were in possession from of old." He accordingly directed that the order for the resumption of the muafi be set aside, that the muafi be restored "for ever" and that the profits which had been deposited in the treasury from the date of possession by the Government be refunded. Unfortunately the copies of the five sanads which the Commissioner relied upon are not before us. It may be that they are lost or it may be that they remained on the file of the 1843 proceedings and have since been destroyed; but the plaintiff has made no effort to explain why they are not available while other documents of the time of Miran Khan and his sons and grandsons are in their possession, namely the farmans and partition deed already referred to. These farmans do not indicate that Muzaffar Ali had a grant in perpetuity; all they show is that he had a grant of money and that a portion of that grant was to be satisfied from the income of these two villages, Pipla and Bijai Nagla. None of these documents are referred to in the Commissioner's order and none of the documents mentioned by him has been produced by the plaintiff in this suit. In the circumstances I have difficulty in finding it proved that the muafi which was held by the plaintiff's predecessor in 1843 and is now held by the plaintiff had its origin in the grants of money which are evidenced by the farmans produced by the plaintiff.
20. But even if it be found that this muafi did originally begin with a grant of dams. I do not think that the plaintiff's position will be materially improved. There is nothing to show that the grant continued in its original form or to show how the plaintiff acquired his zamindari rights. The state of affairs which was found to exist and which was recognized in 1843 was that the persons then in possession, the predecessors of the plaintiff, were holding this property as muafidars and had been mortgaging and selling it in that capacity. The Commissioner's rubkar shows that from the time of the Moghul Emperors down to the time of the Nawab Wazirs of Oudh there were both khariji (revenue-paying) and lakhariji (non-revenue-paying) properties and the property in suit was considered to be in the latter category. And the right which was set up in 1843 was a right to hold this land free of revenue. Whatever the origin of the grant may have been, it seems to me that for the last 100 years the plaintiff and his predecessors have been ordinary muafidars; that is to say the plaintiff is the zamindar or proprietor of this land which he holds free of revenue and which is transferable in the same way as any other muafi land is transferable. There is a finding of fact by the lower Appellate Court that the plaintiff's ancestors were really the muafidars of certain villages and the same muafi was also duly recognized by the British Government in 1843 A.D....
21. That is a finding which would bind this Court in second appeal; and even if it did not do so, I should agree with it. Suit No. 706 of 1932 was not a suit relating to a pension or a grant of revenue at all; it was a suit relating to muafi land, that is to say land which is exempt from the payment of revenue. In my opinion this appeal should be dismissed.
Allsop, J.
22. I agree that this second appeal should be dismissed. The appellant's case originally was that his interest in the property in suit amounted to a grant of land revenue by a Moghul Emperor which was confirmed by the British authorities, that it was consequently a pension within the meaning of Section 12, Pensions Act of 1871 and his interest in the property could not be transferred and that the Court which decided the suit on the basis of his mortgage had no jurisdiction to entertain the suit without the sanction of the Collector. In the course of the arguments before us, learned Counsel for the appellant, if I understood him correctly, put forward an alternative plea. He divided his client's interest in the property into two parts, namely the rights of the proprietor or land-holder and the right to convert to his own use that part of the profits of the property which but for the grant would have been payable to the Government as land revenue. There can be no doubt that the appellant at the time when he executed the mortgage was the proprietor of the land and that Government acknowledged his right to hold the land free from liability to pay land revenue. The appellant's case was based upon the decision of the Commissioner in the year 1843. The argument was that this decision which recognized the appellant's right to hold the property free of liability for the payment of revenue was a recognition of the original grants made to the predecessors-in-interest of the appellant, the grants being evidenced by other documents which have been produced.
23. There can be no doubt that in Moghul times there were certain military officers known as mansabdars who were under an obligation to supply certain fixed contingents for the Imperial army and that these officers were frequently allowed to collect and appropriate the dues payable to Government in respect of villages or tracts of land in order that they might equip and maintain the troops which they were required to supply. The documents produced show that some of the appellant's ancestors were mansabdars and that from time to time some of them were authorized to collect the Government dues from the villages in suit. It does not seem to be necessary to come to a decision upon the arguments addressed to us about the theories of land tenure prevalent in Moghul times. There were undoubtedly on the one hand certain village communities or individuals who were in possession of the land itself and worked it or arranged for its working and enjoyed the produce and on the other hand the State or the Imperial Government. Id may be that the theory was that the State was the owner of the land or that it was recognized that the persons in possession had certain rights of ownership in the sense that an all-powerful but just and equitable ruler would not eject them during good behaviour without the payment of compensation. It is certain at least that it was recognized that the State had a right to a share of the produce of the land and that the share was definitely assessed in money in terms of a coin known as a dam. In some tracts or villages mansabdars were authorised to collect the number of dams fixed. In other tracts or villages the method of collection was by way of farm, that is some person would undertake to pay the amount assessed into the Government treasury less a percentage, usually of 10 per cent, by way of remuneration for his labour and this person was authorized by the State to make the collections from those in possession.
24. It was doubtless in theory accepted that the person authorized to make collections from those in possession, that is, the farmer of the mansabdar would collect only the sums assessed but in practice I daresay his exactions depended a great deal upon the circumstances. If he was very powerful, his demands might be limited only by his own sense of moderation and the capacity of the other party to make the payment. It is generally admitted that the officers of the East India Company, when they took over the administration, imported the ideas of ownership which were prevalent in England at the time and were familiar to them. Where they were confronted by a farmer or a mansabdar who was obviously complete master of the situation and could do what he liked with the land, they regarded him as the owner of it. In other cases it may be that such a person might find it more convenient or suitable only to receive the amount that was strictly due to the Imperial Government and in his case, if he was a mansabdar, the administrators might regard him as a person to whom the revenue had been granted. The predecessors-in-interest of the appellant were obviously persons of the farmer class. It is clear that the Commissioner in 1843 was considering the question whether they were entitled to retain what he regarded as the ownership of the land. The question whether they were to pay land revenue was a mere incident. If they were entitled to the land, it was assumed that they were exempted from the payment of the revenue. The appellant in order to succeed in this case would have to show that the Commissioner had accepted the position which was created by the Moghul grants which have been produced or, in other words, that those grants amounted to assignments of land revenue and that the Commissioner was basing his decision upon them. There is no proof of these facts.
25. It is clear from the Commissioner's order that his judgment is based upon five or six sanads or grants which were not those which have been placed before us. The appellant has not produced the sanads on which the order was based and consequently we are unable to say exactly what the position was which he accepted. The grants which have been produced do not indicate that the revenue had been assigned to the predecessors-in-interest of the appellant as a reward for past services or anything of that kind or that the grants were intended to be hereditary. On the other hand, it would appear that the grants were made because the mansabdar had to supply troops and had to equip and maintain them and that it was considered necessary to renew the grants when the person who held the mansab was succeeded by another person. It cannot, in my judgment, be held that the grants were in the nature of a pension or that the decision of the Commissioner which is the real basis of the claim accepted these particular grants and renewed them. The most that can be said on behalf of the appellant is that his predecessors-in-interest were at one time authorized to collect the Government revenue and because other predecessors in 1843 were holding the land free of payment of revenue it should be assumed that the revenue must also have been assigned to them.
26. It seems to me however that there is an obvious distinction between an assignment and a remission of land revenue. I do not think that any vague right can be assigned. The land revenue at least as understood by the officers of the Bast India Company and later by the British Government was not a fixed sum but was a sum which was to be assessed from time to time when settlements took place. The Government may, remit a liability to pay land revenue in which case no assessment is made, but that is a very different thing from assessing a certain sum and then granting or assigning that sum to some person other than the Government. There is nothing in the Commissioner's order of the year 1843 or in any proceedings at a later stage which would suggest that anyone was aware of a distinction between the right to hold the land which would amount to a right of ownership and the right to be exempted from land revenue which would be regarded as an assignment or grant of that revenue. Whatever the previous history of this property was and whatever the original conceptions may have been, it is the intention of the order of 1843 which must govern the decision of this case. It is clear to me that that order did not contemplate that there was any definite sum of revenue which was due upon this land and that that definite sum was assigned to the predecessors-in-interest of the appellant. The decision of the Commissioner was obviously intended to be a decision that the predecessors-in-interest of the appellant were to be considered as the owners of this land and that they were to be exempted from the payment of land revenue. There was no question of any assignment of land revenue to them. If we were to regard the rights of the appellant as consisting of two parts, namely the rights of the land-holder and the right to receive the assigned revenue, it would be impossible for us to assess the value of the second unless there was a settlement and the land revenue on the land in suit was fixed by the Settlement officer.
27. As I have already said, my opinion is that a remission of land revenue cannot be regarded as an assignment, I have already held that there is no evidence that anything in the nature of pension was granted to the predecessors-in-interest of the appellant either by the Moghul Emperors or by the order of the Commissioner. The appellant was undoubtedly the owner of the land. He transferred it by mortgage and the question in the mortgage suit was whether an interest in the ownership of the land had been transferred to the mortgagee. There was no question about any pension or assignment of land revenue. The Court was not called upon to decide whether the Government had any right to assess revenue upon this land after it had been transferred by sale under the terms of the mortgage or whether if such revenue was assessed, it should be recovered by the Government or recovered by the appellant. The only question at issue was whether the land itself could be sold or not sold.
Braund, J.
28. I agree. In my view the question raised by this referred appeal is a short one. It turns, I think, really upon two short Sections of the Pensions Act, 1871, Sections 4 and 11. The suit itself, though the relief it prays is not well expressed, asks first for a declaration that the 'muafi properties' in question are "nontransferable under the Pensions Act" and, secondly, that they are not attachable and saleable in execution of the decree in Suit No. 706 of 1932 passed by the Munsif of Bijnor, which was not a competent Court....
29. These two prayers really depend, to my mind, on distinct causes of action. To take the second first: it is based on Section 4, Pensions Act alone, and, as the referring Court has, I think, rightly recognized, the real issue raised by it is simply whether the Suit No. 706 of 1932 was a "suit relating to any pension or grant of money or land revenue...." If it was, then the further question would arise whether the effect of that Section was to render the proceedings and the decree passed in the suit a mere "nullity" or not. And if they were mere nullities, then the plaintiff asks for a declaration that the decree passed in that suit, being a nullity, did not affect the properties in question. It can, possibly, be expressed, as the referring Court has done as a question of 'res judicata.' But I think myself that the question is less one of 'res judicata' than of whether the decree in Suit No. 706 of 1932 exists at all as a valid and effective decree. The other issue raised by the plaint, though to some extent involving the same point of construction as to what is 'pension,' is quite distinct. It asks for a declaration that the mortgaged properties in respect of which the decree in Suit No. 706 of 1932 was passed were 'not transferable.' That rests on Section 11, Pensions Act alone. But, if the plaintiff should obtain that declaration, the consequences would, or might, be wholly different from the consequences of the declaration under Section 4 sought for by the plaintiff. I need not however discuss that because the point to which at this stage I desire to draw attention is that in either case the question primarily turns on the construction of Section 4 or Section 11, as the case may be, of the Pensions Act. In the former case the question is not whether what the plaintiff's predecessors-in-title were originally granted was a pension, a grant of money or a grant of land revenue. Still less is it a question of how, if at all, he can trace his title to the grant originally made. It simply is, I think, whether the mortgage suit, No. 706 of 1932, was one which "related to" a pension or any grant of money or land revenue" or whether it did not. I think that some temptation has been offered us to lose sight of what the issue really is.
30. In my judgment, upon any reasonable construction of Section 4, Pensions Act, it is impossible to say that the mortgage suit of 1932 was one which "related to" a pension, a grant of money or a grant of land revenue. And still less is it, to my mind, possible to conclude that what the plaintiff mortgaged in 1920, and again in 1930, was a "pension," within the meaning of Section 11 of the same Act. For the reasons which I shall briefly explain, I am satisfied that in the common parlance of language, what was mortgaged by the plaintiff, and what the ensuing mortgage suit related to, was "land," however the entire beneficial interest in it which the plaintiff enjoyed was originally derived and however, as a matter of mere revenue history, that land had come to be free of land revenue. The mortgage suit, I think, no more 'related' to a grant of money or a grant of land revenue than an action to enforce a mortgage of an enfranchised copyhold in England could be said to "relate to" the released manorial incidents.
31. We have been greatly pressed by counsel for the appellant to concentrate our attention solely on the origin of the plaintiff's interest in the muafi land in question. He has taken us back to the grant to the plaintiff's ancestor by the Moghul Emperor in the early eighteenth century of a specified number of 'dams' out of, or charged upon, the revenues of Pipla and Bijai Nagla and other villages in consideration of the conferment on him of a 'Mansabship.' These were followed by re-grants in the years 1721 and 1724 to the sons and grandson respectively of Mira Khan, the original grantee, while by instruments of 1744 and 1763 it seems that this grant, whatever its true nature may have been, was dealt with and partitioned among the descendants of Mira Khan. From this we are, as I understand, invited to draw the conclusion that the interest which the plaintiff held in these villages nearly two hundred years later in 1930 when he made the second mortgage, and in 1932 when the mortgage suit began, was in part at least a grant of money or a grant of land revenue.
32. But, in the view I take, these researches into the eighteenth century are, for the purpose of the real issue at stake in this appeal, of no more than historical interest. For what we have to consider here is what it was the plaintiff who mortgaged in 1930 and what it was that the mortgage suit in 1932 "related" to. When by treaties at the close of the eighteenth and the beginning of the nineteenth centuries the territories of the Moghul Emperors or their successors were ceded to the Bast India Company, a new conception of land-holding arose, derived, I do not doubt, from the modern conception of the ownership of land in England. It became the object of the ruling power-at first the East India Company and, later on, the Crown-to settle land in the hands of owners, subject to the revenues of the State payable thereout. Land-holding became a matter of ownership. The theory of land revenue changed, I think, from its conception as the means of the enjoyment by its possessor of the beneficial interest in the land to one of a fiscal burden on the land in the hands of its owner or possessor, as it now is. And for many years from 1793 onwards, the ruling power was concerned to see that, while preserving under the new regime all ancient rights and privileges in the form of genuine remissions of land revenue, it was not itself deprived of its lawful fiscal dues. Then followed a series of Regulations, See for example, Bengal Regulations 19 and 37 of 1793, 42 of 1795 and 2 of 1819. the objects of which were to settle once and for all the various claims-many of them bogus-which were being made to remissions of land revenue on the ground of ancient grants, such, no doubt, as the one with which we are concerned in this case. One has only to read the long and interesting preambles to these Regulations to see how utterly the conception of land revenue as the medium of the enjoyment of the beneficial interest in land had given place to a conception of land itself held by an owner "exempt from the payment of revenue." And, the progression of this new idea can be clearly traced into the Land Revenue Acts of 1873 and 1905.
33. It was in pursuance of the Bengal Regulation 2 of 1819 that the inquiry was held by the Officiating Deputy Collector of Bareilly in November 1840 out of which arose the appeal before the Special Commissioner, a copy of whose rubkar or judgment dated 28th January 1843 is now before us. This inquiry and its ultimate finding which was embodied in the list or register of 'muafi' or revenue-free lands is, in my view, completely consistent with the modern conception of a holding of land free from a fiscal burden, and is equally inconsistent with the old conception of land revenue as itself the fruits of the beneficial interest in land in the hands of its proprietor. What was 'released' as the result of these proceedings was the 'land revenue' or burden on the land which had been resumed by the Government until the title to its remission should be established.
34. What therefore we have to look at in this appeal is, in my opinion, what the plaintiff's interest in the property now is and not by what historical processes its present land-revenue-free character is derived. Looked at in this way, I think there can be but one answer. The plaintiff's interest in the land in 1930 was the entire beneficial interest and, in addition, he was fortunate that, for reasons of antiquity, he had to pay no land revenue upon it. In short, he owned revenue-free or 'muafi' land. Coming then to what I think is the real question in this appeal, did the mortgage suit of 1932 relate to a "grant of money or of land revenue"? I think clearly it did not. It related to land or the whole beneficial interest in land, an incident of which happened to be that it was for historical reasons free of land revenue. And still less can it be held, I think, that under Section 4 the suit 'related to' a 'pension' or under Section 11 that the mortgage was an assignment of a 'pension'. It was, in fact, an assignment of land held free of land revenue.
35. For these reasons, and for the reasons expressed in the judgments of my learned brethren in this appeal, I think that the mortgage suit of 1932 was not a suit which related to a grant of a pension or a grant of land revenue and that therefore it was not affected by Section 4, Pensions Act, 1871. For the same reasons, I do not think that the mortgage itself was an assignment of a 'pension' within the meaning of Section 11 of the same Act. The plaintiff therefore fails at the outset to show that either the suit or the mortgage were within those respective sections of the Act and that alone is, I think, sufficient to dispose of this appeal. Even if this were not so, there would remain the additional difficulties to overcome which have been pointed out by my learned brother, Allsop J. in treating a remission of land revenue as a 'grant' and, even if that were possible, of assessing what it was a grant of. For all these reasons I think that the conclusions reached by the learned Civil Judge were right and that this appeal must be dismissed.