Desayi alias Allam Raju Nanjunadhiah vs Desayi alias Allam Raju Venkatasubbiah

This second appeal is argued only with reference to items 56 to 58. The Courts below have held that plaintiff was entitled to a share in them.

The 1st defendant''s (Appellant''s) contentions are twofold. He says that as the properties came to him from Thimma Raju who was the last holder

of this Desai Inam the other members of his family can have no claim to them. It is found that at the time of the devolution, he was the manager of

the undivided family of which plaintiff was a junior member. He must therefore be deemed to have taken the property for and on behalf of the joint

family. The principle of the decision in Gunnaiyan v. Kamachi Ayyar ILR (1902) M 339 applies to this case. We hold that the properties are not

1st. defendant''s self acquisition. The more important question relates to the jurisdiction of the Civil Courts to entertain the suit without a certificate

under the Pensions Act. The finding of the Courts below, we take to be, that the grant to Thimrna Raju''s ancestors was of the land itself. There

has been no suggestion that the original grantees had any Kudivaram right in the soil prior to the grant to them. These considerations have to be

borne in mind in deciding whether the Pensions Act applies to this case. Section 4 interdicts the filing of suits relating to pensions, grant of land

revenue or grant of money without a certificate. Whether grant of land is included in the term pension has been much debated. It is pointed out by

Collins C.J. and Muthusami Aiyar J. in Rama v. Subba ILR (1888) M 98 that the object of the enactment (The Pensions Act) was to prohibit

parties from filing suits in Civil Courts in all cases of Inams, without the knowledge of the Government. The learned Judges inclined to the view that

as the Government is entitled to the reversion, if they choose to exercise their right, the legislature has made it a condition precedent to the

maintainability of these suits, that a certificate from them should be filed. These observations are of great value in considering the right of an alienee

to recover possession of an Inam. When applied to a claim among the members of the family for partition, they have not the same significance. The

learned Judges also observe at page 103, ""These decisions show that in order that a grant of villages may not fall under the Pensions Act, it must

be a grant of the freehold therein or full ownership in the soil, qualified in no way by any reversion suggested by the terms of the grant in regard to

future succession or transmission."" The import of this passage seems to be that if the grantee was possessed of the Kudivaram right at the time of

the grant and all that the Government did was to transfer to him their right of land revenue, the Pensions Act will be a bar. It is true that where the

Kudivaram has vested in the family and the Government conferred the Melwaram right later on, it is unlikely that the two rights should nave been

kept separate. In the passage already quoted all that the learned Judges intended to lay down was that at the time of the suit, the Courts should

apply their minds to the state of affairs which existed at the time of the grant. In the present case, as we prefaced, there is nothing to indicate that

the grantees were the owners of the Kudivaram right and that the grant to them was only of the land revenue. The authorities to which we shall

presently refer lay down that where there has been a grant of land, the Pensions Act is inapplicable. We have referred to Rama v. Subba ILR

(1888) M 98 at some length having regard to the fact that one of the learned Judges who took part in that decision held the position of Inam

Commissioner at one time. Our conclusion is that in cases of partition of the land granted as Inam among the members of the grantee''s family, the

pre-requisite of filing a certificate under the Act has no application. This is supported by a large number of decided cases. Panchanada v.

Neelakanda ILR (1888) M 191 lays this down in distinct terms. It has been approved and followed in His Highnes Mathu Sri Jeeyamba Bai

Saheb Vs. The Secretary of State for India in Council, and the Secretary of State v. Subbarayadu ILR (1912) M 559. The Bombay High Court in

Ravji Narayan Mandlik v. Dadaji Bapuji ILR (1875) R 523 has taken the same view. Mannu Lal v. Fazal Imam ILR (1911) A 580 is to the same

effect. Following these decisions we must hold that the Courts below are right in deciding that their jurisdiction was not ousted by the Pensions

Act. We dismiss the second appeal with costs.