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Bombay High Court
Damodar Vamanbowa vs Satyabhamabai on 19 July, 1907
Equivalent citations: (1907) 9 BOMLR 889
Author: Chandavarkar
Bench: Chandavarkar, Heaton


JUDGMENT

Chandavarkar, J.

1. The claim allowed by the lower Court in favour of the respondent is one for maintenance on the basis of an agreement between her and the appellants. In the plaint she alleges that under the agreement she is entitled to an annual payment of Rs. 52 for her maintenance out of a cash allowance which is received by the appellant from Government. It is not disputed before us and in fact both the Courts below have held that the cash allowance falls within the definition of a pension or grant of money or of land revenue within the meaning of those terms in the Pension Aot XXIII of 1871. If this is a suit relating to a pension or grant of money or land revenue, the suit could not be taken cognisance of without a certificate under Section 4 of the Pensions Act. It is argued that this claim arises from an agreement between the parties. The words of that section are, however, wide enough to include any suit to enforce such a claim. Provided it relates to a pension or grant of money or of land revenue, it is immaterial whether the claim is based on an agreement between the parties or arises out of any other legal right or liability and whether it is a claim for a share by way of partition or maintenance or otherwise. This was the view taken by Sargent C.J. and Telang J. in Appeals Nos. 18 of 1891 and 129 of 1890. In the former the suit was brought against a saranjamdar by one who claimed a share of his income as his illegitimate son entitled to it either as a sharer in the saranjam as ancestral property or by way of maintenance. The judgment delivered was in these terms:-

The claim can be only for a share to the ancestral property or, in the event of its being impracticable, for a share in the income, and, therefore, in either view a claim against a saranjam which the civil Court cannot entertain without the sanction of the Collector.

2. That judgment was followed in the other Appeal, No. 129 of 1890. There the suit was brought by certain bhaubands of the defendant saranjamdar for a share in the profits of the saranjam entitled to maintenance under the terms of a deed of partition and of an agreement. The Court held that it could not take cognisance of the suit without a certificate under the Pensions Act. There is no written judgment of this Court in the latter case but one of the Judges of the present Division Bench, who was then a member of the Appellate Bar, appeared in the case for the respondent and is able to say that that was the ground on which the appeal was decided.

3. Those two decisions apply to the present case. But it is argued by Mr. Khare in support of the decree of the Court below that the agreement on which his client relies, creates no charge on the cash allowance, in the hands of the appellants. The words are sufficient, we think, to create a distinct charge upon the cash allowance and impose no personal liability on the appellants. The undertaking by them is to pay Rs. 52 out of the cash allowance. The source from which the payment is to come is marked out and if that liability fails, there is no other liability for which the appellants can be held responsible. We do not agree with the District Judge when he says that in the plaint all that the plaintiff asks is a declaration that the respondent has a right to receive Rs. 52 from the appellants. The words ” out of the cash allowance” mean a charge, nothing less or more and the construction which the learned Judge has placed upon the relief claimed in the plaint is, we think, wrong. Mr. Khare asks us to give him an opportunity of once more going before the Collector for a certificate under the Pensions Act but once an application was made to the Collector and he has refused to grant a certificate. We do not think we should give him another opportunity.

4. We must, therefore, reverse the order of the Court below and restore that of the Subordinate Judge, The costs of this appeal and of the appeal to the District Court to be on the respondents.


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