1. The appellant before this Court was the plaintiff in the Court of first instance. His father used to get an allowance from the Government Treasury of Rs. 370 and odd. He mortgaged his allowance with the respondent No, 1 Abdul Hai and the latter obtained a decree on foot of the mortgage and brought the allowance to sale. The sale was, However, not completed on account of the institution of the present suit. The son said in the plaint that he had an interest in the allowance and that the allowance was granted in the interest of the family and was inalienable being a political pension. He asked far a declaration to that effect. As to how the allowance came to be made, he gave a history of it in the plaint. He said that there was originally a muafi grant of the landed property by the Moghal Emperors in favour of an ancestor of his. Later on, the grant of land was resumed and a cash sub-stitution was made for it. It was this cash allowance which was the subject-matter of the suit.
2. The decree-holder disputed the allegation of the plaintiff that the property was inalienable or that it was a pension. Various issues were raised and ultimately the suit was dismissed by the lower Appellate Court on a finding as to the nature of the allowance. It is this last point that has been argued before us and we proceed to decide it. We leave the other questions undecided. The question for our decision is whether the cash allowance to which the dispute relates is a political pension or whether it is a property within Section 7 of the Pensions Act, being Act XXIII of 1871.
3. As already stated it is the plaintiff's case that originally there was a muafi grant in his family. It is also his case that the land was resumed and a cash allowance was substituted therefor That these allegations are true is established by certain correspondence a copy of which has been produced by the plaintiff. There is a letter on the record addressed by the Secretary of the Board of Revenue to the Secretary of the Local Government, bearing the date 3rd of March 1837. It shows that certain allowances which had been continued up to 1831 had been stopped and applications had been made to the Board of Revenue on behalf of the descendants of the recipient of the allowance for continuance of the same to the applicants. The letter refers to Regulation XXIV of 1803 and recognises the rights of the applicants to the allowance. Among these applicants is one Qudratullah who was the grandfather of defendant No. 2, the father of the plaintiff-appellant. On these facts, and on the admission of the plaintiff, it is clear that in lieu of the original grant a cash allowance was substituted. The question is whether this allowance falls within Section 7 of the Pensions Act and is, therefore, alienable and is capable of being sued for and recovered in the same manner as any other property. It is interesting to note that the last sentence of Section 7 of the Pensions Act of 1871 is almost verbatim the same as that to be found in Section 2 of Regulation XXIV of 1803: The Regulation XXIV of 1803, which has been superseded by the Pensions Act, laid down that where lands were granted by the late Government (Mogal Government) and had been resumed by that Government and cash allowances had been substituted, those allowances were to be regarded as property and were to descend to the heirs of: the present and future recepients etc. It is this Regulation that has been referred, to in the letter already mentioned. Having regard to these circumstances, we think the lower Appellate Court is right in-holding; that the allowance in the present case was a mere substitution for landed property which, belonged to the family of the: mortgagor. The properly, is alienable and, therefore, it was capable of being mortgaged.
4. Our attention was drawn by the learned Counsel for the appellant to the case of Harnam Das v. Faiyazi Begam 65 Ind. Cas. 645 : 44 A. 354 : 20 A. L. J. 172 : 4 U. P. L. R. (A.) 48 : A. I. R. 1922 All. 22, In this case, the definition of pension, as given in the case of Secretary of State for India v. Kkemchand Jeychand 4 B. 432 : 2 Ind. Dec, Dec, (N. S.) 794, was adopted. That definition is as follows:
A periodical allowance or stipend granted, not in respect of any right, privilege, perquisite or office, but on account of past service or particular merits, or as compensation to dethroned Princes, their families and dependents.
5. It will be seen that in this particular case, the cash allowance has been given on account of a right, viz, a right to the land. The cash allowance is a substitution for land, which could be alienated by the grantee. This allowance, therefore, is not a pension as mentioned in Section 11 of the Pensions Act.
6. The appeal fails and we hereby dismiss it with costs including Counsel's fees in this Court on the higher scale.