Marjum Hosein Khan through his Mother and Guardian, Bemeharunnissa Khatoon vs The Secretary of State for India in Coouncil

Pigot, J.—We think the appeal as to costs must succeed. We think the matter is clearly one in which it is competent to have an appeal, even although it is on a matter of costs, it being one affecting principle.

We think that the ground, put forward in the judgment of the Subordinate Judge, for the order as to costs is one in respect of which the lower Court is mistaken. It appears to us that the Collector did not unauthorizedly withhold the money from the plaintiff. The plaintiff claimed an independent right to demand the money from the Collector in virtue of the petition of the holders of the estate. u/s 31 of Act XI of 1859 he had not the right in that capacity to claim the money: it was payable only to the recorded proprietor or his representative; or, supposing the proportionate shares to have been ascertained, to the persons recorded as entitled to the ascertained shares, or their representatives. Here, there was no receipt tendered by, or on behalf of, the recorded proprietors; nor did plaintiff apply for the money on their behalf, but on his own. The petition, even had it been signed by all the recorded proprietors (which it was not), did not clothe the plaintiff with such an authority to receive the money as entitled him to demand it from the Collector. Plaintiff did not demand the money on behalf of the recorded proprietors, with a receipt from them, as required by the section. He demanded it as their assignee. The section does not contemplate such a case; it does not cast on the Collector the duty of giving effect to, and as a preliminary of verifying of, such assignments. It must be read strictly. On these grounds, the order as to costs cannot be justified. The appeal must succeed, the order as to costs must be set aside, and the respondent must pay the costs of the appeal.