1. This is a Letters Patent appeal from a decree of a learned Single Judge of this Court dismissing the appeal of the defendant. The defendant is a lambardar and co-sharer and the plaintiff as co-sharer brought a suit in the revenue Court for a share of profits for three years and the revenue Court decreed Rs. 73-12 in favour of the plaintiff and the appeal of the defendant to the Court below has been dismissed and the second appeal of the defendant to this Court has been dismissed by the learned Single Judge. The claim of the defendant as argued before us was that the family of the defendant were the original owners of a zamindari share in this village and that in the year 1853 Government remitted the revenue which the family had to pay on their share. In the written statement a plea was put forward that the plaintiff was not entitled to profits as the property had been given as maintenance to the present and future generations of the defendant. The Courts below in the first instance did not refer to evidence produced by the defendant on the point, namely two documents Exs. B and C. On the second appeal to this Court the learned Single Judge came to the conclusion that this aspect of the question had not been dealt with and accordingly he remanded two issues as follows : 1. Was the remission of land revenue in favour of the defendant's ancestors in 1853 a grant in respect of past services or present infirmities or as compassionate allowance? 2. Was the grant of 1853 a mere remission of revenue or was it a grant of revenue in perpetuity for the benefit of the grantee and his descendants? In remand the lower appellate Court has come to findings on these issues in favour of the defendant. There is one document Ex. C, a certificate of revenue free tenure permanently released which refers to 'muafi nazrana' of Rs. 40 per annum. There is another document Ex. B, a copy of an extract from the register of the demand of land revenue for the year 1867, which under the heading 'Qism Muafi' (character of the revenue free grant) states 'Madad mash daimi naslan bad haslan' (an aid to maintenance to be continued generation after generation). The Court stated:
My finding accordingly is that the concession relating to land revenue, whether it be a remission or a grant, was compassionate in character. It is clear, therefore, that this grant was, firstly, in perpetuity, and, secondly, for the benefit of the grantee and his descendants. As I have stated before, the circumstances seem to suggest that, when the grant was made in 1853, it was never contemplated that the benefit regarding the land revenue would accrue to anyone different from the person who possessed the land. In my opinion, therefore, whatever the grant was, it was not a mere remission of revenue. In view of Ex. B and the implications of the information which it embodies, my finding has to be that the concession was a grant of revenue in perpetuity for the benefit of the grantee and his descendants.
2. The Court also finds that the grant arose from an order of Government dated 30th July 1853, which was not produced but which was referred to in Ex. C of 1864. The origin of this revenue free grant was thus due to the Government of Agra province in the year 1853. The learned Single Judge, Thorn, J., considered the case from the following aspect only:
If, therefore, the remission of land revenue is a pension within the meaning of Sections 11 and 12, Pensions Act, the appeal must be allowed in part.... The Bench of which I was a member came to the conclusion that remission of land revenue was not a pension within the meaning of the above-mentioned sections of the Pensions Act Mumtaz Husain v. Brahmananda : AIR1936All298 . In the result the appeal is dismissed with costs.
3. The ruling in question dealt with an altamgha or royal grant made by Shah Alam, King of Delhi, in a firman stated to be of the year 1184 Hijri (1765-66 A.D). The headnote is in error in quoting a term of that firman as the Bench held that the copy of the firman was not proved and that the terms were therefore not known (p. 163). On p. 164 the Bench referred to Section 15, Bengal Regulation 37 of 1793, which provides:
Altamgha, ayma, and mudadmash grants are to be considered as hereditary tenures. These and other grants, which from the terms and nature of them may be hereditary and are declared valid by this Regulation, or which have been and may be conferred by the British Government or by any of its officers possessing competent authority to confirm them are declared transferable by gift, sale of otherwise....
4. Moradabad, where that case arose, and Budaun, where the present case arose, were in the provinces ceded by the Nawab Vizier to the Company in 1801 and the above provision was applied by Section 15, Regn. 36 of 1803. Regulation 37 of 1793, Section 2, stated:
First, Altumgha, jaghire, ayma, muddhudmaush, or other badshahee grants for holding land exempt from the payment of revenue, made previous to 12th August 1765, the date of the company's accession to the dewanny, shall be deemed valid.... If it shall be proved, to the satisfaction of the Court, that the grantee did not obtain possession of the land so granted previous to 12th August 1765...the grant shall not be deemed valid. In Regn. 36 of 1803, Section 2 substitutes the date 1st January 1801 for '12th August 1765'.
5. It is clear therefore that the provisions of these Regulations, on which the ruling quoted by the learned Single Judge was based, can have no application whatever to the present case because (1) The Regulations refer to grants previous to 1765 and 1801 and the present grant was of 1853. (2) The Regulations refer only to grants by the King of Delhi and various princes before the time of the Company, whereas the grant in the present case was by the Government of Agra province. It is also to be noted that the ruling has no application because the ruling dealt with a case where the terms of the grant were held to be not proved, and in the present case the lower appellate Court has held that the grant was for maintenance of the family of the grantee. The correct criterion to apply in the present case is the terms in the grant. There is nothing in law shown which would make the grant transferable merely because it is hereditary. No doubt a transfer of property by a private person cannot be made with a condition restricting alienation, for the condition will be void under Section 10, T.P. Act, Act 4 of 1882. But that section does not apply to a grant by Government, as is set out in the Crown Grants Act, Act 15 of 1895, Section 2:
Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or any interest therein here to before made or hereafter to be made by or on behalf of Her Majesty the Queen-Empress, her heirs or successors, or by or on behalf of the Secretary of State for India in Council....
6. In the Transfer of Property Act Section 6 provides:
(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him, (dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.
7. In the present case the lower appellate Court has found that the grant was for maintenance of the grantees' family from generation to generation (madad mash daimi naslan bad naslan). The right was therefore restricted in its enjoyment to this family and it was for maintenance. These conditions show that the grant was not intended to be capable of transfer. The grant was therefore not capable of transfer to the plaintiff by the auction sale on 21st July 1924. The zemindari share was not part of the grant as the finding is that the share had been held by the family of defendant prior to the grant. The share passed to the plaintiff by the auction sale but not the grant of land revenue on the share, and the grant of land revenue therefore remained with the defendant. In the present suit for profits the Courts below were wrong in granting the plaintiff a decree for Rs. 73-12-0, profits against the defendant, as the statement of accounts Ex. A, on which that decree is based, does not make any deduction for the land revenue, and the defendant lambardar is entitled to deduct the land revenue granted to him before making payment of the share of profits due to the plaintiff.
8. For these reasons we allow this Letters Patent appeal and we grant the parties costs in proportion to whatever will be their ultimate success or failure throughout. The case will be returned to the lower appellate Court for amendment of the decree in accordance with our finding. That Court will ascertain the amount of land revenue to which the defendant is entitled on the share of the plaintiff in question, and that amount will be deducted from the share of the profits due to the plaintiff from the defendant. Parties may produce any further evidence in order to ascertain the land revenue on the share in dispute.