1. This appeal concerns itself only with the question, viz., what is the property that is going to be sold?
2. Certain persons being members of a joint Hindu family with the appellants mortgaged their property described in the plaint as mauza Muhammadpur Bayar, pargana Budaun, comprising a 15 biswas share entered in the khewat as holding No. 1, bearing a jama of Rs. 931-6-6. Certain issues arose between the parties and one of the questions raised was whether the mortgagors had any interest in the property which was not liable to be sold. The nature of that interest claimed as unsaleable, will be considered presently. A second appeal was heard by this Court and after an amendment of the decree appealed against, the appeal was remanded for disposal of the issue which is now to be finally disposed of by this Court.
3. It appears from the judgment of the lower Appellate Court, that is to say, the judgment under appeal, that the ancestors of the mortgagors were originally assignees of the Government revenue in respect of the two villages, viz., Mahammadpur Bayar and Lakhanpur. The learned Judge found that whatever might be true history of the grant, 'undoubtedly these two villages had been held by the ancestors of the appellants as assignees of the revenues during the Moghul times and originally the history of Lakhanpur and that of Muhammadpur Bayar was identical.' The learned Judge found, in respect of Lakhanpur, that there were zamindara with whom the settlement was made by the Government, and that the appellants had been realising the land revenue from the zamindars of Lakhanpur as assignees of the same. With respect to Muhammadpur, the learned Judge finds that there were certain persons with whom the Moghuls and the early British officers made settlements, but later on when regular Settlements came to be made these persons disappeared and the settlement was made with the assignees of Government revenue themselves. The result was, finds the Judge, that for the last half a century or more the appellants have been treated as the proprietors of the village paying the land revenue to themselves. On these facts, the lower Appellate Court remarked as follows : 'Thus the corpus of village of Muhammadpur Bayar passed into the possession, of the muafidar. Act XXIII of 1871, on which the present appellants place reliance, does not refer to immovable property but only to grants of revenue and money.' The learned Judge, accordingly, held that the property mortgaged was saleable.
4. To start with, we may point out that if the property, as described in the plaint, be sold, the purchaser will, on the face of it, be liable to pay a revenue of Rs. 931-6-6. The property is not described in the plaint as being revenue free. It is not said that whoever purchased the property will be exempt from payment of land revenue. In this view, if we simply affirm the decree appealed from, the purchaser would be liable to pay the land revenue, whether the same be payable to the appellants, the mortgagors, or to the Government.
5. However, the controversy having arisen as to what is the property that is to be sold, we proceed to discuss the question.
6. Under the Pensions Act 'no Civil Court shall entertain any suit relating to any pension or grant of pension or land revenue conferred or made by the British or any former Government whatever may have been the consideration for any such pension or grant and whatever may have been the nature of the payment, claim or right for which such pension or grant may have been substituted'. (Section 4 of Act 23 of 1871). It is clear that a grant of immovable property is not to be treated as 'pension' within the Pensions Act. This is not controverted. It is for this reason that the mortgagees are anxious to induce the Court to hold that the mortgagors are not mere assignees of the land revenue, enjoying a certain sum of money annually, but are the proprietors of the entire village although they do not pay any land revenue. It is conceded on behalf of the plaintiffs, vide document No. 83-A, dated the 1st of June, 1920, that originally the mortgagors were nothing but assignees of land revenue. When the proprietors of the soil died or became extinct, a settlement was made with the pensioners themselves. That being so, it appears to us there are two separate capacities held by the mortgagors. The fact that the Government made the settlement with the pensioners did not convert the pensioners into grantees of revenue free immovable property. The nature of the grant must depend on what the Government gives and on what may happen irrespective of the wishes of the Government. If the Government gave only the land revenue, any acquisition of the lands by the pensioners, themselves cannot make them 'a grantee of the immovable property.' This, in our opinion, is the criterion for the decision.
7. It has been urged that the mortgagors, have been long in possession as zamindars and that, therefore, the two rights which they possessed have merged into one another. We do net think that there is a merger. The two rights are entirely different. The owner of soil can enjoy it but subject to payment of the land revenue. That land revenue must be paid to the Government. The Government may choose that the land revenue would be paid, instead of to themselves, to somebody else. So long as the Government does not make a revenue free grant of the land, it cannot be said that there is a merger of the two different rights. The two rights-may very well lie in the same person without merger. We consider that in this case there has been no merger at all.
8. The result is that we declare that the' property to be sold is the pure zamindari rights which the mortgagors have in the property and their right to the realization of the Government revenue as assignees-thereof is not liable to be sold.
9. We allow the appeal, modify the decree of the Court below and order that the property as described above be sold. Having regard to all the circumstances of the case, we order that the parties bear their own costs in this Court.