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Janardanrav and ors. Vs. the Secretary of State for India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom442
AppellantJanardanrav and ors.
RespondentThe Secretary of State for India
Excerpt:
.....(k)--inam commissioner, investigation of a claim by, under act xi of 1852 and decision thereon--government resolution setting aside the commissioner's decision--such resolutions an adjudication--claim for interest on mesne profits awarded by government resolution. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent,..........was in the following terms: 'the remembrancer for legal affairs has the honour to report that as government resolution no. 7284 of the 19th october, 1882, reversed an order which was passed before bombay act ii of 1863 became law, and instead of disallowing allowed the memorialists' claim to hold their village of bedkihal hereditarily in perpetuity under the rules of act xi of 1852, it is in his opinion, reasonable that for the purpose of section 4, bombay act ii of 1863 the village should be held already formally adjudicated to be continued hereditarily.' the government on the 3rd july 1883, passed the following resolution: 'government concur with the remembrancer for legal affairs and the local authorities in thinking that for the purposes of section 4 of bombay act ii of 1863 the.....
Judgment:

Charles Sargent, C.J.

1. The plaintiffs' claim for interest on arrears of land revenue between 1859 and 1885 rests on the assumption that they were entitled to the land revenue itself which had been received by Government during the period as the lawful holder of the village. The adjudication of this suit would, therefore necessitate a decision on a question, which by Section 4 Sub-sections (f) and (k) of Act X of 1876, is a 'matter' not within Fl the competency of a Civil Court, unless the claim be 'under a judgment by a Court of law or an adjudication duly passed by a competent officer under Bombay Regulation XVII of 1827, chapter X, or under Act XI of 1852, which declares the particular property in dispute to be exempt.' It is contended for the plaintiffs that the Resolution of Government of 19th October 1882, was such an adjudication, and that the Civil Court can, therefore, take cognizance of the plaintiffs' claim as based upon that adjudication. It is not in dispute that the plaintiffs' claim to be inamdars of the village was investigated by the Inam Commissioner under Act XI of 1852 and rejected in |1859, and that decision was confirmed by the Governor in Council under the rules made in that Act in 1861. However, the plaintiffs continued to present petitions to the Government, which resulted in the Government passing a resolution on the 19th October, 1882, to the following effect: 'On full enquiry, and after careful consideration of all the facts mentioned and arguments adduced by the petitioners, His Excellency is of opinion that the previous decisions of Government adverse to the claim preferred by the petitioners must be reversed, and the village of Bedkihal restored to them. All the circumstances of the case have now for the first time been fully brought to the notice of Government, and an examination of those circumstances, and the perusal of the memorials submitted by the petitioners, of the previous proceedings, and of the able and lucid review of the whole case furnished by the Remembrancer for Legal Affairs, convince the Governor in Council that the petitioners have established their claim to the restoration to them of the village in question. The necessary steps to carry out this order should be taken by the Collector, Belgaum.' On 16th May, 1883, the Commissioner of the Southern Division wrote to Government to enquire whether the restoration, of the village should be considered as having been made after formal enquiry. The Government consulted the Legal Remembrancer on the above point, and his opinion was in the following terms: 'The Remembrancer for Legal Affairs has the honour to report that as Government Resolution No. 7284 of the 19th October, 1882, reversed an order which was passed before Bombay Act II of 1863 became law, and instead of disallowing allowed the memorialists' claim to hold their village of Bedkihal hereditarily in perpetuity under the Rules of Act XI of 1852, it is in his opinion, reasonable that for the purpose of Section 4, Bombay Act II of 1863 the village should be held already formally adjudicated to be continued hereditarily.' The Government on the 3rd July 1883, passed the following Resolution: 'Government concur with the Remembrancer for Legal Affairs and the local authorities in thinking that for the purposes of Section 4 of Bombay Act II of 1863 the village of Bedkihal should be held to be restored after formal enquiry.' We think that these resolutions amount to a distinct adjudication by competent officers that the land was exempt from payment of revenue when plaintiffs' title was examined by the Inam Commissioner in 1859.

2. It is, therefore, sufficient, in our opinion, to give the Civil Court jurisdiction over the present claim. This is the only question referred to us, and we must be understood as expressing no opinion on the merits.

Birdwood, J.

3. In making this referenoe, the District Judge expresses the opinion that the plaint discloses no cause of action against the Government cognizable by the Civil Court; that the suit is barred by Section 4, Clause (f) of Act X of 1876; and that even if there were no express prohibition, the claim would be inadmissible on general principles.

4. The District Judge makes the reference, however, under Section 13 of Act X of 1876, because there is room for doubting whether the plaintiffs' claim does not come under proviso (j) to Section 4 of the Act. He quotes proviso (j) in the order of reference; but intends apparently to refer to proviso (k); for the question which he thinks open to argument is not whether the suit involves a claim to hold land exempt from the payment of and revenue under a written grant such as is contemplated in proviso (j), but whether, during the greater part of the period in respect of which the plaintiffs' claim interest on mesne profits' they can be said to have held their village under such an s adjudication as is contemplated in proviso (k), the adjudication relied on by them having been made towards the close of that period. It is his doubt on this point which appears to the Judge to justify the reference.

5. In dealing with it we are not concerned with the questions whether the plaint discloses a cause of action against the Government, or whether the claim is inadmissible on general principles. The only question we can decide is whether the Judge is precluded by Act X of 1876 from taking cognizance of the case.

6. It seem to me; doubtful whether the prohibition contained in Clause (f) of Section 4 of the Act can be applied to the case; for though the adjudication of the plaintiffs' claim; would involve a consideration of their right to hold their village exempt from the payment of the land-revenue from, the year 1859 to the year 1885, yet, it earn scarcely be said that they are now making any claim against Government so to hold their village; for their right so to hold it was fully recognized by the Government in 1882. The restoration of the village of which they had been dispossessed in 1859,, in execution of the Inam Commissioner's decree was ordered in 1882t The village was restored to their possession in 1885, and mesne profits for the period of dispossession were paid by the Government to the plaintiffs, whose right, therefore, to hold the land, free from assessment from 1859 to 1885, is no longer in dispute; and the only claim that the plaintiffs now wish to assert in the Civil Court, is not a claim to hold land rent free, but a claim to obtain all the advantage flowing from the favourable decision of Government in their case. They seek now to recover interest on annual mesne profits withheld from them for the periods for which such profits were withheld. To such a claim Clause (f) of Section 4 was not apparently intended to apply.

7. But assuming that Clause (f) is applicable to the claim, then I have little hesitation in holding that proviso (k) also applies to it and makes the suit cognizable by a Civil Court. The decision of Government contained in Resolution No. 7284, of the 19th October, 1882, is the adjudication relied on by the plaintiffs. It, reverses the previous decisions of Government adverse to the plaintiffs claim to the restoration of their village. The previous decisions referred to were made under Act XI of 1852. As to this, there is apparently no dispute. And in Government Resolution No. 4971 of the 3rd July 1883, the Government itself seems to regard its decision of the 19th October, 1882, as made under that Act. Indeed, there is no other law to which we have been referred, under which the Judicial orders of the Inam Commissioner and the Judicial orders of the Government rejecting the plaintiff's appeal against his orders, could apparently have been reversed. Those judicial decisions were binding on the Government in its executive capacity: see Vasudev Pandit v. The Collector of Puna 10 Bom. H.C. R. 471 and could only be set aside by equally formal decisions by way of review. The order of Government rejecting the plaintiff's appeal was final under Rule 2 of Schedule A of the Act. Still, under Rule II of Schedule B, the Government was empowered to relax the former rule in favour of the claimants. It must be held to have relaxed the rule in 1882, and then to have admitted a review of its former decision. The Resolution No. 7284 of the 19th October, 1882, must therefore be regarded as an 'adjudication,' within the meaning of proviso (k) to Section 4 of Act X of 1876, 'duly passed by a competent officer...under Act XI of 1852,' declaring the property in dispute to be exempted from the payment of land-revenue. The word 'competent officer,' as used in the proviso, must be held upon whom judicial powers are conferred by the Act.

8. That being so, the mere circumstance that the plaintiffs claim interest on mesne profits for a period anterior to the order of 1882, does not take the case out of the proviso; for when the review was admitted, the whole question between the plaintiffs and the Government was re-opened; and the order made in 1882 necessarily related back to the time when the plaintiffs were dispossessed in 1859; and that is the view the Government itself has taken, inasmuch as it has paid mesne profits to the plaintiffs from 1859. It cannot be said that the plaintiffs' present claim for interest is made irrespectively of the rights conferred on, them by the resolution of 1882. Their claim for interest for the period from 1859 to 1885 is really based on the adjudication of 1882. They could not have brought the present suit at all if the resolution had not been made in their favour. They seek an advantage necessarily arising, as they assert, out of that resolution; and their claim must, therefore, be held to be based on the resolution; and to be coverted by proviso (k) to Section 4 of Act X of 1876.

9. I concur, therefore, with the learned Chief Justice in holding that the Judge must be directed to proceed with the case.


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