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Babaji Hari Vs. Rajaram Ballal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1877)ILR1Bom75
AppellantBabaji Hari
RespondentRajaram Ballal and anr.
Excerpt:
.....has contended that there is necessarily a government revenue arising from the lands in this case, and that it does not appear clearly that the lands, and not merely the revenue arising from them, are held by the parties. but freedom from liability to land revenue is not identical with holding a grant of land revenue, any more than the extinction of an easement by becoming sole proprietor of the property, servient as well as dominant, is a grant of an easement......9 of the act provides for the case of an inamdar suing his inferior holders or tenants for the land revenue due to him which, it is said, he may recover as he would recover rent. 'nothing in sections 4 and 8,' it is said, shall preclude him from this remedy, and, unless section 4 was intended to affect other suits than those against government, this mode of expression would not have been adopted. again, section 14, article (8), enables the chief controlling revenue authority to make rules for 'reference to the civil court under section 6 of persons claiming a right of succession to, or participation in, pensions or grants of money or land revenue payable by government,' which rules are to have the force of law. a person claiming participation in a payment might, no doubt, go direct.....
Judgment:

West, J.

1. The first point that arises for disposal is, whether a pauper respondent is entitled to present objections at the trial of an appeal without payment of stamp duty under the Court Fees Act VII of 1870. Section 16 of that Act says absolutely that the Court shall not hear such objections until the respondent shall have paid the additional fee due under the Act. No exception is made in favour of pauper respondents. It has been argued by Mr. Ghanasham that a pauper respondent is, when he presents an objection, a pauper appellant, and entitled to the indulgence in that character; but the grammatical construction of the Act does not allow this indulgence to him, and the reason for this probably was that he already had the opportunity of directly making an appeal without expense for court fees, and that an inquiry into his pauperism at the last stage of the case would involve great delay and inconvenience. We do not think, therefore, that there is any good reason for departing from the literal construction of the enactment to which we have referred.

2. The second point is, whether the claim was wholly or in part placed beyond the jurisdiction of the Civil Courts by the provisions of Act XXIII of 1871. On the mere grammatical interpretation of Section 4 of that Act no doubt, we think, could reasonably be entertained of its shutting out the jurisdiction of the Civil Courts in a case like the present. Doubt is created only by the anterior improbability of the Legislature's having intended to shut out all co-sharers in public beneficia from the ordinary Courts, even for the determination of their relations inter se without expressing that intention more directly and emphatically than it has done in Act XXIII of 1871. That Act is, in its earlier portion, obviously intended to guard the executive Government against responsibility to the Civil Courts; but it has been contended that Section 4 should be construed as extending only to claims made against Government for either the whole or some portion of an alleged alienation or allowance out of the revenues. Section 6, it is urged, would then apply to cases in which the executive, absolute as it is with respect to such matters, might desire to be guided by a knowledge of the legal, or quasi-legal, relations of the parties. But if Section 4 had been intended to apply only to suits against Government and its officers, it is hard to conceive that this should not have been plainly said. As it stands, the section extends to all suits relating to any grant of money made by Government; and the plaintiff, who seeks a share in such a grant from his alleged co-sharers, must, we think, be said to bring a suit relating to the grant. Section 5 provides another remedy, such as it is, for the claimant shut out from the Civil Court; and the true intention of Section 6, we think, is to enable the revenue officer, who may be puzzled by the duty which Section 5 casts on him, to refer the parties to a Civil Court for the determination of their respective interests in the income or other benefit which the executive will still, as against either or both of the litigants, be at liberty to allow or to withhold. Section 9 of the Act provides for the case of an Inamdar suing his inferior holders or tenants for the land revenue due to him which, it is said, he may recover as he would recover rent. 'Nothing in Sections 4 and 8,' it is said, shall preclude him from this remedy, and, unless Section 4 was intended to affect other suits than those against Government, this mode of expression would not have been adopted. Again, Section 14, Article (8), enables the chief controlling revenue authority to make rules for 'reference to the Civil Court under Section 6 of persons claiming a right of succession to, or participation in, pensions or grants of money or land revenue payable by Government,' which rules are to have the force of law. A person claiming participation in a payment might, no doubt, go direct to the Collector to ask for it, and then be referred to the Civil Court, without such a course necessarily excluding an alternative resort to the Civil Court and the exercise of the Court's jurisdiction in the case of one seeking, without application to the Collector, to establish his right as against his usurping co-sharer but this is not the necessary construction, nor, we think, looking to the general purpose of the Act, the most probable one. That purpose appears to be to keep the distribution of what is regarded as a bounty of Government wholly in the hands of its executive officers; and if suits for shares could be brought, and rights, or the semblance of rights established, by some co-sharers, while Government was paying the whole proceeds of a cash allowance to other sharers, the reclamations of the former would at least be embarrassing. They would practically necessitate an investigation by the revenue officer under Section 5, which must terminate by an adjudication similar to that of the Civil Court if it were meant to command any public confidence, or else would entail a reference to the Civil Court under Section 6 with a similar result. Thus, private parties refused a hearing, or such a hearing as they desired, by the revenue officer, might, so to speak, force his hand, and gain their end by a circuitous process. This cannot have been intended, and the grammatical interpretation of Section 4 prevents such a consequence arising.

3. We are of opinion, therefore, that, even when proposing to sue a co-sharer to establish his right to an aliquot portion of any allowance paid by Government, the suitor must go to the revenue officers and obtain their permission to proceed, and a corresponding certificate under Section 6. We have arrived at this conclusion reluctantly, and not without some doubts as to its correctness; but, upon the whole, we do not think we can properly construe the Act in any other sense than that which we have given to it.

4. These remarks apply only to the allowances paid by Government to the family to which the parties belong. As to the lands held by them free from assessment, it has recently been held in this Court by the Chief Justice and Larpent, J. (Special Appeal 507 of 1873), that lands held under a grant bestowing them, and not merely the Government revenue arising from them, do not fall within the provisions of the Pensions Act. Mr. Pandurang has contended that there is necessarily a Government revenue arising from the lands in this case, and that it does not appear clearly that the lands, and not merely the revenue arising from them, are held by the parties. But freedom from liability to land revenue is not identical with holding a grant of land revenue, any more than the extinction of an easement by becoming sole proprietor of the property, servient as well as dominant, is a grant of an easement. The land revenue arising from a man's own holding, when it is remitted, and the land pays nothing, is rather extinguished than granted. The lands were not in this case claimed for possession in specie; but the reason assigned for this is that they are occupied by lessees who cannot be displaced; the point was not raised in the Court of First Instance that the claim was one for alienated land revenue, and we understand it to have extended to the lands themselves, subject, of course, to the rights of the tenants.

5. We must, therefore, as to the lands in the proceeds of which the plaintiff seeks to establish his right as a sharer, remand the cause to the District Court, that the Judge, after determining what portion of the claim relates to lands, as distinguished from money allowances, may pronounce on the other points that arise, viz., as to whether the suit was barred by limitation, and as to what deductions, if any, are to be made on account of expenditure necessarily or properly incurred by the defendants out of the property in which the plaintiff claims a share. He will take such evidence as the parties may adduce on these points respectively.


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