1. The suit out of which this appeal arises is in respect of toda giras hah. The pedigree is given in the judgment of the lower Court.
2. The original holder was one Parbatsingji, who died in 1839 leaving two sons, Chhatrasingjee and Jasvatsinghjee. Chhatrasinghji died in 1880, and Jaavatsinghjee died in 1868 leaving a widow Surajba. It appears that the hah was divided between Chhatrasinghjee and Jasvatsingjee, and after his death it was entered in the name of his widow Surajba. It was not divided equally, but in the proportion of Rs. 0-9-6 in a rupee to Chhatrasingjee and the balance to Javatsingjee and his widow. The original plaintiff Bhimsingjee is the son of Chhatrasingjee. Defendant No. 1 is the grandson of Chhatrasingjee, being the son of Jitsingjee, the eldest son of Chhatrasingjee. Defendants Nos. 2, 3 and 4 are brothers of defendant No. 1, defendant No. 6 is the nephew of defendant No. 1, and defendant No. 5 is the son of Naransingjee who was the third son of Chhatrasingjee. The plaintiff is, therefore, the paternal uncle of the defendants.
3. The plaintiff alleged that he was the heir of Surajba, and as such he was entitled to recover the toda giras hak of Rs. 500 a year which stood in her name. But he did not make any claim as regards the larger portion of the toda giras hak, which was received by Chhatrasingjee. The first Court, the Second Class Subordinate Judge at Ankleshwar, found that the hak in question was not the property of Surajba but was a toda giras hak, and that it did not descend by primogeniture, but that under the rules relating to inheritance to such haks the plaintiff was entitled to one-third, the other sharers being his nephews the defendants. He granted a declaration in respect of one-third share, but refused his claim for injunction against defendan No. 1 from receiving the amount. It may be mentioned that after the death of Surajba, it was ultimately decided by Government that the Rs. 500 receivable by Bai Surajba in respect of the toda giras hak should be paid to defendant No. 1.
4. Defendant No. 1 appealed. The plaintiff also put in cross-objections, and the first appellate Court, the District Judge of Broach, varied the decree of the lower Court by declaring that the plaintiff Bhimsingjee was entitled to the whole of the toda giras hak, and consequently he gave him a decree for the amount claimed with costs. As Bhimsingjee died during the pendency of the appeal the judgment contains a provision, 'All those who will be entitled to the giras as his heirs will be entitled to the benefit of this decree' including the decree for money in respect of certain arrears of the cash allowance which remained to be paid or had been received by defendant No. 1 in 1914, 1915, 1916 and 1917. Defendant No. 1 makes this second appeal.
5. Various points of law and facts arise, and so far as the facts in this case are concerned, they may be disposed of comparatively shortly. The question in. this suit being the right to recover the toda giras hak we must be guided by the rules of devolution relating to such haks. Now these haks are governed by Bombay Act VII of 1887, which deals expressly with that subject. But before the passing of that Act they were governed by Government resolution No. 4309, dated November 27, 1862, to the same effect as the present Act, which will-be found in Maharaval Mohan sangji Jeysangji v. The Government of Bombay I.L.R. (1880) Bom. 437 That resolution laid down that the giras haks or any portion of the allowance should be continued hereditarily to the lineal male heirs in male descent of the first recipient of such allowance from the British treasury. The terms of this resolution are now expressly incorporated in Section 3 of Bom. Act VII of 1887, which says:-
Every toda giras allowance is continuable hereditarily to the lineal male heirs in male descent of the first recipient thereof under British rule:
Provided that, on failure of such heirs, the allowance, or some portion there' of, shall, whenever the Governor in Council has already so directed, or shall hereafter so direct, be continuable hereditarily to the lineal male heirs in male descent of a brother of the first recipient of such allowance under British rule.
The rule, therefore, is that the allowance is continuable to the lineal male heirs in male descent of a brother of the first recipient and not to the eldest son. As the devolution of such haks is not governed by the rule of primogeniture, the person, who, as in this particular case, wishes to prove that the family is governed by the rule of primogeniture must discharge the burden of showing that the ordinary provisions of law are not applicable in respect of the case. As I have already said, the plaint in this case was based on the allegation that this property was the property of Bai Surajba, and, therefore, the plaintiff as her reversioner and the nearest heir would succeed to it to the exclusion of the other members of the family. But there is no basis whatever for this allegation. It appears from the record in this case that Bai Surajba herself did not claim the property as her own personal property, and there is on the record a letter from the Political Agent in which it has been pointed out that Bai Surajba is merely entitled to maintenance and has no claim to the cash allowance. It must be taken that the grant of this allowance to Bai Surajba after the death of her husband was merely a family arrangement, and as it is perfectly clear that the amount payable from the treasury was payable as a toda giras hah and was divided between the two sons of the original owner Parbatsingjee, by no possibility could such an allowance become the personal property of the widow of one of the male descendants. This is shown by Exhibits 61, 62 and 63, which show that this toda giras hale was divided between the two brothers in 1871. But these are really questions of fact, and the finding of both the lower Courts is that the amount in question is a cash allowance in respect of the toda giras hah and not the personal property of Bai Surajba. That is really a finding of fact supported on evidence, and I may very briefly refer to Exhibit 60, which is an extract from the List of Non-Service Cash Allowances of the Broach District, 1871, which showed that Rs. 731 were payable from the treasury to Chhatrasingjee Parbatshingjee and Rs. 500 to Jaswantsingjee, deceased by his widow Surajkuvar, and the remark column is that this allowance is to continue to the male descendants in the male line of Parbatsingjee Bharmalsang. To the same effect is Exhibit 61, which is an extract from the village form 22 for the year 1871-72, and shows that this allowance is an allowance 'to be continued from generation to generation in lineal male descent'. The remark column is 'To the lineal descedants in male descent of Parbhatsang Bharamsang. For the continuance of this allowance in the name of Surajba, widow of the deceased Jaswantsang, there has been received an order of the Revenue Commissioner No. 24, dated August 8, 1871'. It appears that the dispute between the two brothers had been settled by the talukdari settlement officer Mr. Pestonji, and it is referred to in Exhibit 63 which is an order of the Assistant Political Agent dated May 28, 1878. This order to which I have already referred states: 'The lady is not entitled to anything else except maintenance and she gets a good sum out of the Giras from the British Government for her maintenance.' To the same effect is Exhibit 64 at page 29 of the Paper Book, where a reference is made to the continuance of this allowance to the mala descendants in the male line of Prabatsingjee. But against the name of Bai Surajba there is appended a note, 'To whom this amount is to be continued to be paid on the death of Bai Surajba will be considered later on'. In these circumstances, there can be no doubt that the amount in question is not part of the estate of Surajba, but is a toda giras hah continuable to the descendants in the male line of the original holder Prabatsingjee.
6. It has been argued that the circumstances of this case point to the rule of primogeniture so far as regards the property of the family. It obtained in the case of the Rajpipla property. But there is no evidence whatever that the rule of primogeniture obtained in the case of the toda giras hah. As I have already pointed out there is a direct provision of law under Bombay Act VII of 1887 providing for the devolution of such toda giras hah, and this is not a new provision but was based upon Government resolution No. 4309, dated November 27, 1862, already quoted. It, therefore, would require very strong evidence to prove that in the case of this particular toda giras hah the manner of devolution was contrary to that laid down by Government a very long time ago and subsequently incorporated in an Act of the Legislature. But apart from that, it is quite clear from the exhibits to which I have just referred, viz., 61, 62 and 64, which are extracts from the Alienation Registers, that no question of primogeniture would ever arise in the case of this toda giras hah, because, as a matter of fact, on the death of Prabatsingjee in 1839, the allowance was divided between his two sons Chhatrasingjee and Jasvatsingjee. If the devolution of this hah had been governed by the rule of primogeniture, the whole of it would have gone to Chhatrasingjee, who was the eldest son, whereas, on the contrary, we find, that it was divided equally between the two brothers, and that on the death of Jasvatsingjee his widow was allowed to enjoy Rs. 500 for a considerable period. It is quite impossible that the devolution of this hah could have been governed by the rule of primogeniture, and this is what both the lower Courts have found. We must take it, therefore, that the amount which is in question in the present suit is a toda giras hah and governed by the ordinary rules applicable to the devolution of such haks. It follows, therefore, that the allowance is continuable to the descendants of the original holder as provided by Bombay Act VII of 1887. It is continuable to the lineal male descendants of the first recipient. The lineal male heirs of the first recipient were the two sons Chhatrasingjee and Jasvatsingjee. Jasvatsingjee died in 1868. Chhatrasingjee had three sons, who are represented by defendants Nos. 1 to 4 and 6, the plaintiff, and defendant No. 5, and the allowance under the law is divisible between those three branches. That is what the first Court found, and that, in my opinion, is the correct decision. On appeal, the learned District Judge appears to have indulged in speculation as to the nature of the interest enjoyed by Surajba in the property. As already pointed out, the extracts from the alienation registers show that Bai Surajba was allowed to hold this toda giras hah during her lifetime only, the question as to who was to succeed her being reserved for consideration after her death.
7. The grounds on which the learned District Judge varied the decree of the first Court cannot be upheld. At one part of his judgment at page 4, line 11, he says quite correctly: 'The succession to that hah must be governed by the terms of the sanad and by laws and rules applicable to a toda giras hah when the succession opened,' The sanad is not before the Court, and I do not see any warrant for supposing that the terms of the sanad were contrary to the express rules laid down by Government in the resolution subsequently incorporated in Act VII of 1887. The presumption surely is that the sanad was in accordance with law and practice and not contrary to them. The sanad itself is not on the record, and I can see no warrant for assuming that by that sanad any higher interest was conferred on Bai Surajba than that which she would get under the ordinary law applicable to cases of this character. The statement of the District Judge that 'the sanad recognised her as holder of the hah for the time being subject to the condition that on her death it would go to the lineal male descendant of Prabatsingjee' is no doubt correct, except that he has made a mistake in using the word 'descendant'' in the singular instead of 'descendants' in plural. He goes on to say: 'The heir therefore must be looked for under Section 3 of Bombay Act VII of 1887 and the terms of the sanad.' As he had not got the terms of the sanad there was no reason to suppose that it was not consistent with the Bombay Act VII of 1887. The next sentence in the judgment, 'The plaintiff. Bhimsing was nearer than defendants and would exclude them, is totally inconsistent with Section 3 of Bombay Act VII of 1887, which I have quoted already more than once. That section says, 'Every toda giras allowance is continuable hereditarily to the lineal male heirs in male descent of the first recipient thereof', and not to the near eldest male heir. In these circumstances, I am of opinion that the view of the District Judge, which is founded on an inference that in this particular case the terms of the sanad are inconsistent with the law of Bombay Act VII of 1887, cannot be supported. On the contrary, the view of the first Court that each of the three branches, who represent the lineal male, is entitled to one-third of the toda giras hak is correct, and should be restored. This, however, does not dispose of the matter.
8. The learned counsel for the appellant has raised certain points of law which have to be considered. The first point is this. The plaintiff having brought this suit based upon the allegation that the property in question was the personal property of Bai Surajba to which he succeeds as her nearest reversioner, and having failed to prove that, his suit should be altogether dismissed. I am unable to accept this proposition. When it is found on the facts and on the law applicable to this case that though the plaintiff alone is not entitled to the whole hah yet he is entitled to not less than one-third, I see no reason why he should not be granted the declaration to which he is entitled in this suit instead of being referred to another suit. This disposes of the first objection.
9. The second objection is one of rather more substantial character. It is argued that the present suit is barred by Section 6 of the Pensions Act (XXIII of 1871), which runs as follows:-
A Civil Court, otherwise competent to try the same, shall take cognizance pf any such claim upon receiving a certificate from such Collector, Deputy Commissioner or other officer authorised in that behalf that the case may be so tried, but shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly.'.
10. In the present case, the plaintiff has got a certificate from the Collector of Broach authorising him to institute his suit in respect of the claim to the toda giras hah in question. But it is contended that the effect of the decree of the lower Court is to affect directly or indirectly the liability of Government to pay the allowance and therefore the suit would not lie under Section 6 of the Pensions Act. Now if this argument is pushed to its logical conclusion, it will be apparent that no suit can be brought under the Pensions Act, whether there is a certificate or not. Because in practically every case relating to pensions the decree or order involving title to such pensions can be held directly or indirectly to affect the liability of Government to pay. If that were the case then the former portion of the section relating to the grant of a certificate would be nugatory, and no suit whatever could be brought relating to a claim to a pension, which would be a curious result. The authorities which the learned counsel has quoted in support of his proposition do not really go so far as is argued. It will be necessary, therefore, to examine them in relation to this point. The first case which he quotes is Parbhudas Rayaji v. Motiram Kalyandas I.L.R. (1876) Bom. 203 which only lays down that the Pensions Act applied to toda giras hak. It was held in that case (p. 207): 'that it was the intention of the Legislature to reserve to the Government the decision of all questions relating to such allowances as 'toda-gras' haks.
11. The next case, on which the learned counsel has relied, is The Secretary of State for India in Council v. Jawahir Lal. I.L.R. (1915) All. 338 In that case the plaintiff claimed in effect a declaration that he was entitled to be considered as the assignee of the Government revenue payable in respect of certain property as being the reversioner to one Dalpat Rai who was the last assignee. In that case no certificate was produced. The certificate which he had produced was in respect of some other litigation. The Court held: 'That in any case it would be impossible to pass a decree in favour of the plaintiff without affecting the liability of Government to pay such grant.' That case, therefore, may be distinguished on two grounds. Firstly, that no certificate which was necessary under the Pensions Act was produced, and, secondly, that to grant the declaration under the circumstances of that particular case would affect the liability of Government to pay to the plaintiff; because if it were declared that the plaintiff was the assignee of Government revenue it would be incumbent on Government to pay it.
12. The third case, on which the learned counsel has relied, is Hakim Shiam v. The Secretary of State for India in Council (1919) P.C. App, No. 124 of 1917, decided on October 21, 1919 (Unrep). That was a suit against Government, and the declaration in that suit was that it might be established and declared that the plaintiff had the proprietory right to the grant and the name of Government might be expunged. It was held by the Privy Council that the suit was misconceived inasmuch as the order or decree was in respect of the liability of Government to pay any such pension or grant as aforesaid and affected directly or indirectly. It may be observed that at the close of the judgment there is a reference to the grant of a certificate under Section 6 of the Pensions Act which runs as follows:
The object of this provision evidently is that in cases of conflicting titles the Revenue Authorities should grant to the unsuccessful applicant an opportunity for adjudication of his right by the regular Courts of justice'.
The facts of this case appear to be quite different to the present, in which there was a dispute between the sharers.
13. The fourth case referred to is Haidar Saheb v. Muniroddin : (1930)32BOMLR1420 , decided by me recently. In that case the plaintiff sued for a declaration that he was entitled to have his name entered in the register of cash allowances kept by the Collector in preference to the defendant. It was held that such a suit would not lie. There was a reference in that case to the analogy of the Watan Act, and it was held (p. 1424), 'if any such declaration were made, it would under Section 6 of the Pensions Act affect directly or indirectly the liability of Government to pay any such pension or grant inasmuch as the entry of the name of the plaintiff in the register would entail the liability of Government to pay to him and not to any one of the other sharers'. And it was further remarked that it would be altogether a different matter, if the right to the allowance was contested among the sharers as in the present case. There is a distinction between the cases in which the plaintiff sues to have his name entered in the register which would enforce the payment to him as a registered holder by Government of the cash allowance and cases such as the present in which there is a dispute between the sharers themselves. If the facts of the present case are looked at, it would be seen that the decree declaring that the plaintiff is entitled to a certain share in the cash allowance is one which does not affect the . liability of Government to pay. All that the decree says is that the plaintiff is entitled to a certain portion of the cash allowance payable by Government, Government having decided that the cash allowance is payable to defendant No. 1. This order of Government is not in any way affected by the subsequent declaration that the plaintiff is entitled to a certain share of the amount so paid. Government is not a party to this suit and the decree could not be enforced against them. They may make the payment to the person whom they think proper. The right of other persons to share in the amount so paid is a matter which does not affect in the least the liability of Government either directly or indirectly. The decree affects only the plaintiff's right to share in the amount if and when Government pay it. This disposes of the second objection.
14. The third point which has been raised is this: Whatever the form in which the suit is brought, the real object of it is to avoid the order of the Commissioner passed in December 1917 that the amount should be paid to defendant No. 1, and, therefore, under Article 14 of the Indian Limitation Act the plaintiff's suit to set aside that order must be brought within one year from the date of the order. It has been argued by the learned advocate for the respondent that the order of the Commissioner or Government directing payment to defendant No. 1 is ultra vires as not being in accordance with Bombay Act VII of 1887, which prescribes the manner in which the succession to the toda giras hale is to be regulated, and, therefore, it is not necessary to set the order aside. It is not, however, in my opinion, necessary to go into this question, because in my view the claim of the plaintiff is entirely independent of the order of Government. The order of Government is that the amount should be paid to defendant No. 1, and so long as the plaintiff is, by virtue of the decree in the suit, entitled to share in the amount so paid by Government to defendant No, 1, it is a matter of indifference to him whether the actual payment from the treasury is made to defendant No. 1 or to any other person whom Government may select, and, therefore, it is not necessary that the order should be set aside. The rights of the plaintiff, so long as he gets his share from the person who is paid by Government, are not in any way affected by this order of 1917. The learned counsel for the appellant has quoted one or two cases which show that the real nature of the suit must be looked to: Latifa Khatun v. Tofer Ali I.L.R. (1927) Cal. 201 and Kaura v. Ram Chand I.L.R. (1925) Lah.206 But for the reasons which I have given it appears to me that this is a suit to set aside that order, and, as is pointed out, the existence of the order does not in any way affect the right of the plaintiff under the decree thus obtained. This being the case, Article 14 will have no application, and the suit cannot be barred by limitation. This practically disposes of the case.
15. In my view the suit is not barred either by limitation or by reason of Section 6 of the Pensions Act. Although the plaintiff has failed to establish that the property in question is the private property of Bai Surajba, he is, under the rules laid down under Bombay Act VII of 1887, one of the persons entitled as a lineal male descendant of the original holder to a share of this allowance, and the share, as found by the trial Court. is, in my opinion, correct. The modifications made therein by the District Judge on appeal are based on a very insecure foundation, viz., an inference drawn from the sanad which was not before the Court and an inference which would be contrary to the provisions of the law of Bombay Act VII of 1887. In my judgment, therefore, the decree of the lower appellate Court should be set aside and the decree of the first Court restored, and the plaintiff will be held to be entitled to a one-third share of the cash allowance.
16. At the close of the case, it is argued by the learned advocate for the respondent that during the pendency of the suit defendant No. 5 was brought on record as the legal representative of the deceased plaintiff', and, therefore, he is entitled to two thirds. This is a point which does not arise in the present case. Defendant No. 5 may be the legal representative of the plaintiff, but it is not the same thing as being his heir. The decree as drawn provides for the rights of the heirs. Defendant No. 5 made no claim in the suit. His claim to two-thirds cannot be decided in the present suit.
17. I would, therefore, set aside the decree of the lower appellate Court and restore that of the trial Court.
18. I agree. In this litigation we are concerned only with Rs. 500 paid to Bai Surajba from the date of her husband's death, and not with the remainder of the toda giras hah which was enjoyed by defendant No. 1 appellant's father Jitsingjee and since his death by the appellant. This amount of Rs. 500 is claimed in its entirety by each of the contesting litigants, defendant No, 1 appellant the nephew, and his uncle the plaintiff respondent Bhimsingjee, who died during the pendency of the appeal in the District Court and who is now represented by his other nephew Joravarsingjee original defendant No. 5.
19. In regard to this amount of Rs. 500, during the lifetime of the two sons Chhatrasingjee and Jasvatsingjee the entire hak stood in the name of both, and the dispute between the brothers had not been decided until Jasvatsingjee died. On his death the matter was compromised by a settlement which is expressly recorded to be temporary by the payment to Bai Surajba of Rs. 500. That payment is acknowledged by her to be a payment for her maintenance and is recited by Government as late as 1885, under Exhibit 64, to be without prejudice to the descendant of the person to whom the amount was to be paid on her death. Under these circumstances, there is no substance in the contention of the plaintiff respondent that this amount was the separate property of Bai Surajba, to which the rules of Hindu Law would apply, and to which, he, as the nearest male reversioner to Jasvatsingjee's widow, would, therefore, be solely entitled. On the other hand, in regard to the claim of the appellant, except the single fact that he and before him his father enjoyed the other amount of Rs. 731, there is no evidence in favour of this claim. As I have already stated above, in the lifetime of Chhatrasingjee and Jasvatsingjee the amount was entered in the names of both. Government resolution No. 4309, dated November 27, 1862, subsequently embodied in Section 3 of Bombay Act VII of 1887, causes the allowance to descend to all lineal male descendants and not to the senior of the eldest branch. The appellant's claim, therefore, to enjoy Rs. 500 alone equally fails, and I agree with the view of the trial Court that both under Section 3 of Bombay Act VII of 1886 as well as by reason of the previous dealings with the allowance the plaintiff respondent is entitled to a one-third share.
20. The view of the District Judge in favour of the plaintiff respondent is based on the fact that Bai Surajba was granted a sanad. That sanad was not produced. Its terms, apart from the summary in the Government Registers Exhibits 60, 61, 62 and 64, are not known, and there is no reason, whatever, particularly in view of Bai Surajba's own admission that it was paid to her as maintenance, that is to say, for life only, and the entry Exhibit 64 of 1885 referred to above, to show that by reason of the grant of the sanad alone it became the sole property of Bai Surajba. Accordingly, I agree that the plaintiff-respondent has failed to substantiate his claim to the entire Rs 500 but has proved it only in respect of one-third.
21. In regard to the legal objections, on the first point, I agree that because he claimed as heir to Bai Surajba, he did not there-fore abrogate whatever title he might have possessed as heir of the descendant of Parbatsingjee. He is not, therefore, debarred from obtaining a decree in his favour in respect of a one-third for which he has made his claim good.
22. In regard to the objection under the Pensions Act, that Act restricting as it does the right of the subject, must be strictly construed in favour of the subject. On the face of it, the decree does not increase the liability directly or indirectly on Government which is not a party, and which is not, therefore, bound by this decree. It might be open to Government even under the decree to retain Rs. 500 in the treasury. It is only on payment of it to the appellant that the respondent-plaintiff will be entitled to obtain his one-third. Particularly in view of the certificate under Section 4 of the Pensions Act, under which Government permitted the respondent to litigate his claim, it is not, in my opinion, open to the Courts to hold that this certificate is, to all intents and purposes, futile, and that though Government on the issue of the certificate did not object to the litigation and presumably to the adjudication, nevertheless a decree is barred by reason of Section 6 of the Pensions Act.
23. For the same reason the suit is not directly or indirectly to set aside the order of Government in favour of the appellant. Article 14 of the Indian Limitation Act has, therefore, no application.
24. In regard to the last objection, the fact that the original defendant No. 5 is the legal representative of the original plaintiff Bhimsingjee, does not necessarily cause him to be the sole heir, and on this point the view of the lower appellate Court is correct that defendant No. 5 is not ipso facto entitled to a declaration in his favour as regards two-thirds of Rs. 500,
25. For these reasons I agree that the appeal partly succeeds and partly fails, and the decree of the lower appellate Court must be set aside and the decree of the trial Court restored.
26. A s regards costs we confirm the order of the trial Court as regards the costs in that Court and order each party to pay its own costs in this Court and in the District Court.