1. The question we have to decide in this second appeal is, whether an allowance of Rs. 60 payable every six months to the first defendant-respondent Musammat Faiyazi Begam is capable of assignment.
2. The allowance has been hypothecated twice to the plaintiff appellant, Harnam Das under two deeds of the 18th June 1906 and the 23rd April 1907, respectively, The first of these deeds was executed by the lady alone; the second by herself, her husband and her son.
3. The claim was for Rs. 1,418.50 and the plaintiff mortgagee asked for a decree enabling him to recover the debt by sale of the hypothecated property. Admittedly, the question before us has to be decided with reference to the language of Sections 11 and 12 of the Pensions Act (Act XXIII of 1871).
4. Section 11 lays down that no pension granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance is liable to seizure, attachment, or sequestration by process of any Court in British India, at the instance of a creditor, for any demand against the pensioner, or in satisfaction of a degree or order of any such Court. And Section 12 enacts that assignment of pensions mentioned in Section 11 are null and void.
5. The allowance in dispute is obviously, a 'pension' in the sense that it represents money payable periodically otherwise than in respect of a right, privilege, perquisite or office. The history of the fund out of which this allowance is paid and to which; we shall presently refer makes this quite clear.
6. But the question remains whether it is a pension of any of the kinds mentioned in Section 11 of the Act.
7. The Courts below have differed on this point, the First Court holding that the allowance did not fall within the scope of Section 11, the lower Appellate Court being of opinion that it did. In the well-known case of Secretary of State v. Khemchand Jeychand 4 B. 432j 2 Ind. Dec. (N.S.) 794 the Bombay High Court gave a definition of the pensions described in Section 11 which has been accepted by other High Courts including our own, The case is reported in Secretary of State v. Khem Chand Jeychand 4 B. 432j 2 Ind. Dec. (N.S.) 794 and at page 436 the learned Judges say as follows:
8. 'In our opinion, the word 'pension' in Section 11 is used in its ordinary and well-known sense viz., that of a periodical allowance or stipend granted, not in respect of any right, privilege, perquisite or office, but on account of past services or particular merits or as compensation to dethroned princes, their families and dependents'. The history of the grant in this case is that it was made by the Emperor Akbar for the support of the descendants of Sheikh (or Shah) Salim Chishti, the famous saint whose mausoleum at Fatehpur Sikri is one of the most renowned buildings in Northern India. It appears that in the year 1569 Akbar visited the saint who was then living at the place called Sikri. It is said that Akbar, who was childless at the time, besought the prayers of the saint and in consequence of a suggestion made by the latter, sent his wife to reside at Sikri wherein the following year she gave birth to a son Salim, who was afterwards known as the Emperor Jahangir.
9. This event led Akbar to found a new city on the spot, Fatehpur Sikri, where he resided for a considerable period. It was here that Akbar, after the death of Salim Chishti, caused the famous cenotaph to be created and in order to provide for its maintenance be made an endowment consisting of the revenue of a number of villages. This fund was to be devoted not only to the preservation of the tomb but also to the maintenance of certain religious services and the provision of an allowance for the saint's descendants of whom the defendant, Faiyazi Begam, is admittedly one.
10. In the year 1846 the British Government of the day passed certain orders regarding the manner in which the endowment fund should be administered; these are contained in a letter from the Secretary to Government, N.W.P., to the Officiating Secretary to the Sadr Board of Revenue, No. 3 46 of 1846, dated the 14th August 1846, a copy of which is on the record. From this it would appear that prior to that date the persons charged with the administration of the fund had been exercising a right of management over the villages the revenue of which had been assigned for the endowment.
11. It was decided that this arrangement should not continue as settlement had been made by the Government with the proprietors and it was directed that in future the revenue should be paid into the Government Treasury and the fund applied under the supervision of the Collector in accordance with the instructions contained in the letter. In this letter it was declared that the tomb of the Saint was a national architectural monument which it was the duty of the Government to keep in repair, and a portion of the fund was definitely allotted for that purpose.
12. Instructions were next given for (he disbursement of a definite portion of the fund to meet the cost of the religious ceremonies for which the Emperor had provided.
13. And, lastly, a specified amount was set aside to be applied in the maintenance of the saint's descendants regarding whom it was declared that they were pensioners of the Government entitled to draw their pensions in perpetuity from the Treasury. It was laid down that they were to be registered and, treated as such, and we understand that this arrangement continues to the present day and that the pension to which Faiyazi Begam is entitled, as one of Salim Chishti's defendants, is paid out as directed in the letter to which we have just refer red.
14. On this statement of the facts it is not to be doubted that the Government in 1846 came to the decision that it was just and politic to continue the grant of the land revenue which Akbar had assigned for the purposes indicated above, and we agree with the learned District Judge that the continuance of the pensions to the descendants of the saints was based upon what may fairly be called political considerations. This being so, the pension now in dispute is one of those mentioned in Section 11, and is clearly within the definition laid down by the Bombay High Court for the grant was, without doubt, originally made either in recognition of the past services of Sheikh Salim Chishti or in acknowledgment of his particular merits.
15. It follows, therefore, that the assignments of the pension to the plaintiff appellant upon which he founds his claim in the present suit are null and void as provided by Section 12 of the Act, The only other plea taken in the memorandum of appeal, viz., that in any case the plaintiff should have been given a simple money-decree is unsustainable. Such a claim is barred by limitation.
16. We dismiss the appeal with costs to the respondent including fees in this Court on the higher scale.