1. The question in this appeal is whether the plaintiff-appellant's suit is barred for want of a certificate under as, 4 and 6 of the Pensions Act, XXIII of 1871, as the trial Court has held.
2. One Kushalbhai Neechabhai had obtained a Sanad for an allowance computed in respect of his Desaigiri Haq in 1878. His widow Bai Kashi sold the allowance to the plaintiff appellant on May 3, 1922, for Rs, 5000. The appellant after his purchase applied to the Collector to have his name entered in the register under the Watan Act, and on August 8, 1923, he was informed by the Mamlatdar of Chikhli that the Commissioner had ordered it to be entered. But on November 29, 1923, the Mamlatdar informed him that his name had been entered only during the life time of Bai Kashi. The plaintiff accordingly filed the present suit against the Secretary of State for a declaration that he was the full owner of the Desaigiri cash allowance standing in the name of Bai Kashi and was entitled to hold the same absolutely in the revenue records, and for an injunction that the Secretary of State should be ordered to enter the plaintiff's name as the full owner and not only during the life-time of the defendant No. 2, Bai Kashi. The defendants' objection that the suit could not be entertained in the absence of the certificate under sections 4 and 6 of the Pensions Act was upheld by the District Judge on the authority of Dwarkanath Amrit v. Mahadeo Bal-kriahna I.L.R. (1912) Bom. 91;14 Bom. L.R. 938 The plaintiff appeals.
3. It is argued for the appellant, firstly, that the Act should be strictly construed, limiting as it does to the right of the subject, and that the Collector's powers were exhausted by the first order granting the plaintiff's application, and that he could not, therefore, make the second order, and no certificate under the Pensions Act was necessary. Secondly, for the same reason, the second order is void, and such a suit as the present lay without a certificate.
4. Both the grounds are really based on the previous action of the Collector according to the Mamlatdar's first letter granting the plaintiff's application. That would not, however, alter the nature of the suit. If the present suit relates to a grant of money made by the British Government, then on the express terms of Section 4 of the Pensions Act no such suit can be entertained by the Civil Court without a certificate. It is quite true that the Act Should on the ordinary cannons of interpretation be liberally construed in favour of the subject limiting as it does his ordinary rights-a view which derives support from a series of decisions from Gurushidgawda bin Rudragavda v. Rudragavdati horn Dyamangavda I.L.R. (1877) Bom. 531 to Balvant Ramchandra v. Secretary of State I.L.R. (1905) Bom. 480 7 Bom. L.R. 497 At the same time it is pointed out by West J. in Babaji Hari v. Bajaram Ballal I.L.R. (1875) Bom. 75 that, however reluctant the Courts may be that their doors should be closed to the subject, it is their duty to give effect to the intentions of the legislature when they are clearly expressed as they are in Section 4 of the Pensions Act. The view of Sargent C. J. in the peculiar case of Govind Sitaram v. Bapuji Mahadeo I.L.R. (1893) Bom. 516 has been distinguished by this Court in subsequent cases of Dwarlcanath v. Mahadev I.L.R. (1912) Bom. 91 14 Bom. L.R. 938 and Balkrishna v. DaUatraya I.L.R. (1917) Bom. 257 20 Bom. L.R. 325 The present suit is not of the nature of the suit in Govind v. Bapuji I.L.R. (1893) Bom. 516 Reliance is placed for the appellant on the observations in Ghhaganlai v. Pranjivan (1909) 11 Bom. L.R. 1369 in support of the proposition that the powers of the Collector are exhausted by the first order communicated through the Mamlatdar and he had no power left subsequently to modify the entry and to restrict the appellant's right during the life time of Bai Kashi. The facts of that case were however quite different Speaking for myself, the grounds on which that case can ba distinguished and on which in fact the same result would have been equally well arrived at are shortly these. In that case the plaintiff had obtained a decree against the Collector for payment of moneys in regard to a certain allowance before the Pensions Act was even enacted. Certain payments were subsequently made according to the decree. But on his death, in the darkhast by his heir to obtain the payment under the decree, the Collector attempted to set up a bar of Section 4 of the Pensions Act. That objection was overruled by the District Judge. Clearly, Sectuion 4 in terms bara a suit but could not bar a darkhast, least of all one in execution of a decree prior to the enactment of the Pensions Act under which the Collector is ordered to make the recurring payment in question. The decision in Chhaganlal v. Pranjivan (1909) 11 Bom. L.R. 1369 and even the remarks do not therefore avail the appellant on the facts of the present suit. It appears that Bai Rashi being a widow, her alienation would have to be supported on the ground of legal necessity for the payment of her husband's debt, and it is possible that this consideration was not at first present to the mind of the revenue authorities, but was noticed subsequently and inclined them to modify their first decision in the appellant's favour and to restrict the entry to Bai Kashi's life time. However that may be, we ara of opinion that on the plain words of Section 4 of the Pensions Act and on the consistent decisions of this Court, such as Babaji Hari v. Rajaram Ballal I.L.R. (1875) Bom. 75 and Dwarka-nath Arnrit v. Mahadeo Balkrishna I.L.R. (1912) Bom. 91 14 Bom. L.R. 938 down to Sadashiv v. Annabhat (1926) 23 Bom. L.R. 1477 we must allow the preliminary objection for the defendant-respondents that the suit could not be entertained for want of the necessary certificate under the Pensions Act. The Revenue Jurisdiction Act (IX of 1876), Section 4(d)(3), might also be in the way of the relief sought by the appellant against the amendment by the Collector of his first entry.
5. Cross-objections are filed for the respondents in regard to pleader's fees. The claim for the declaration and injunction is valued by the plaintiff at Rs. 130 in the trial Court, as he is, no doubt and for the purpose of jurisdiction under Section 8 of the Suits Valuation Act, so entitled to do. But in regard to pleader's fees for the same reasons as in Bai Meherbai v. Magunchand I.L.R. (1904) Bom. 229 7 Bom. L.R. 131 the pleader's fees should in our opinion be taxed at Re. 5,000 and not at Rs. 130.
6. We dismiss the appeal with costs and allow the cross-objections with costs.
7. The appellant's contention is that the suit is not within the terms of Section 4 of the Pensions Act, He claimed as follows:-
It may be declared that the plaintiff is the full owner of the Desaigiri Haq at present standing in the name of Bai Kashi and that ha is entitled to hold the same as absolute owner in tha revenue records, and that the defendant No, 1 should bo ordered to enter his name as the full owner of the Haq and not only during the life-time of Bai Kashi the defendant No. 2.
8. The cash allowance is Rs, 183-1-1 per annum, and the plaintiff is the alienee of the widow of the last holder, His grievance really Is that he should not be entered as the limited owner but as an absolute owner. We have been referred to a series of decisions. The rule in Babaji Hari v. Rajaram Ballal I.L.R. (1873) Bom. 75 has been followed in Dwarknath Amrit v. Mahadev Balkrishna I.L.R. (1912) Bom. 91 and in several other cases since last ruling. What the suit refers to is the question of the appellant's right to the payment of the pension from the date of Bai Kashi's death, as his right to the payment until her death has already been recognised by the Revenue Authorities. It appears to me that by no process of reasoning can such a suit be taken outside the plain terms of Section 4 of the Pensions Act.
9. I agree that the appeal must be dismissed and the cross-objections allowed with costs.