Najmun-Nissa vs Amna Bibi And Ors. on 3 May, 1909

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Allahabad High Court
Najmun-Nissa vs Amna Bibi And Ors. on 3 May, 1909
Equivalent citations: (1909) ILR 31 All 382
Author: B A Tudball
Bench: Banerji, Tudball


Banerji and Tudball, JJ.

1. This appeal arises out of an application for execution of a decree by the respondent Musammat Najm-un-nissa Bibi, who has obtained a decree for dower against the other heirs of her deceased husband. The decree is dated 16th August 1904. In execution of that decree she has attached some 21 villages in the hands of the judgment-debtors appertaining to taluqa Ganeshpur. The judgment-debtors have objected to this attachment on the ground that the property constitutes a political pension within the meaning of Section 266(g) of the Code of Civil Procedure of 1882. The lower court has held against them and they have come on appeal to this court.

2. The sole question for decision is whether the property attached can be considered to be a political pension within the meaning of Section 266(g) of the Code.

3. The parties are the descendants of one Kadir Bakhsh, a Pindari Chief, who in the earlier part of the nineteenth century was granted by the Government of India a pension of Rs. 4,000 per annum. In the year 1819, by a sanad dated the 14th of January of that year the Government of India bestowed on Kadir Baksh, in lieu of his so-called pension, a revenue free jagir consisting of 27 villages. The sanad runs as follows (after relating the facts of the grant to Kadir Baksh), “on the decease of Kadir Bakhsh the estate will be continued in perpetuity in the manner of an hereditary holding, zamindari mauroosi, in possession of his heirs and successors, provided that an adequate payment of revenue be made to Government.” Subsequently in the year 1822, at the request of Kadir Baksh himself, revenue amounting to Rs. 1,877-8-0 was assessed on this estate, to come into force on the decease of Kadir Baksh. From that time She heirs of Kadir Baksh, have held this estate on the payment of this permanent revenue to Government. Subsequently in the year 1862, the predecessors in title of the present parties brought a suit against the Government claiming the full proprietary right as zamindars over an area of 8,000 odd bighas (part of the estate granted by the sanad). That case proceeded on the assumption that Kadir Baksh was the full owner of 3,933 bighas, the balance of the property. The question of the full ownership of this portion of the estate was not in dispute. The plaintiffs in that case obtained from their Lordships of the Privy Council on the 22nd of February 1870, a decree for possession as full proprietors and zamindars of the entire area of 8,000 odd bighas. It also appears that subsequently to this various portions of this estate have been sold by public auction and have also been transferred by co-sharers therein. So that it is clear that the property has all along been treated by the members of this family as an ordinary zamindari holding, subject simply to the payment of Government revenue.

4. The contention for the appellants is that the property really belongs to tike Government and the appellants have only a right to recover from it their pension granted by Government originally to Kadir Baksh, and that therefore the property must be treated as a political pension and not liable to attachment in execution of the decree. A similar question arose in the case of Lachmi Narain v. Makund Singh (1904) I.L.R. 26 All. 617. It was therein held that the zamindari granted by Government as a reward for services rendered is not a pension and its alienation by the grantee is not prohibited either by Act XXIII of 1871 or by Section 266 of the Code of Civil Procedure. At page 621 of the Report the learned Judges held as follows: “We have no doubt that the word “pension” in Section 11 of the Pensions Act and in Section 266 of the Code of Civil Procedure implies periodical payments of money by Government to the pensioner in the manner prescribed by Section 8 of the Act.” The learned Judges also quoted the case of the Secretary of State for India in Council v. Khemchand Jaychand (1880) I.L.R. 4 Bom. 432 where the same questions also arose and was decided and in which it was held as follows: “It follows that in our opinion the word “pension” in Section 11 is used in its ordinary and well-known sense, namely 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.” With this definition we fully concur and it is very difficult to see how the zamindari which was granted under the sanad of the 14th of January 1819, can now be deemed a political pension.

5. Our attention has been called to the decision of a Bench of this Court in an unreported case, case No. 32 of 1878, dated the 27th of November 1878. It appears that at the time when this grant was made to Kadir Baksh a similar grant was made to another Pindarichief named Karim Baksh under another sanad, practically worded the same as the one in this case. It was held by the learned Judges who decided that case that the property was not liable to attachment. The judgment runs as follows: “It appears that a necessary allowance in the nature of a political pension was originally granted to the ancestor of the judgment-debtor, a Pindari chief Karim Khan. For their necessary allowance a grant of the taluka at a given rent was substituted. The Government has from 1846 up to the present time asserted that the grant was a jagir escheating to the Government on failure of the jagirdar’s heirs and which the jagirdars for the time being are incompetent to alienate. We may refer to the letter No. 2367 of 1846 from the Secretary to Government to the Secretary, Sudder Board of Revenue, the letter of the Commissioner of the Southern Division to the Sudder Board, dated 6th June 1853, and No. 205 and to the letter No. 224 from Secretary to Sudder Board to the Commissioner of the Benares Division, 17th June, 1853.” It does not appear from this judgment that the terms of the sanad were at all considered. It is based on certain correspondence which was before the learned judges but which is not before us and which moreover does not relate to the present estate. The circumstances of that case appear to have been somewhat different to those of the case before us. In view of the recent ruling of this Court mentioned above and of the circumstances of this case set forth, we find it impossible to hold that the attached property can in any way be considered a political pension and therefore not liable to attachment and sale. The appeal therefore fails and is dismissed with costs.

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