LAKHMI CHAND Vs. MADHO RAO

JUDGEMENT

(1.) This is a first appeal by the defendants Lakhmi Chand, Parshotam Das and Parbhu Lal against a decree of the learned Subordinate Judge of Agra and a cross- objection by the plaintiff Madho Rao, minor. The suit of the plaintiff Madho Rao, aged 10 years, is brought for a declaration that the decree of the Court of the Subordinate Judge of Agra in suit No. 18 of 1914 is null and void and that the muafi rights specified in list A and the ancestral property specified in list B are not saleable in execution of the aforesaid decree. The Subordinate Judge has granted the relief in regard to the muafi rights in list A and has dismissed the suit in regard to the ancestral property in list B. The pedigree of the plaintiff is as follows:

(2.) The plaint sets forth that in mauza Rauta in Agra District the plaintiff and his ancestors had been muafidars for over a century under a sanad granted by Maharaja Scindhia; that the muafi was recognized by the British Government and the name of Abaji, son of Bogaji, was entered in the papers; that Madho Rao, the paternal grandfather of the plaintiff, whom we shall call for convenience Madho Rao I, was immoral and a spendthrift, and he executed for immoral purposes a hypothecation bond for Rs. 15,000 on 26 October 1905 in favour of the defendants-appellants, hypothecating the property both in list A and list B. The plaint alleged that the muafi was untransferable, and that the ancestral property of the joint family could not be transferred by Madho Rao I, and that the transfer was without necessity and for immoral purposes and void because Madho Rao I previously made a family settlement. The plaint further sets forth that the defendants-appellants obtained a decree in suit 18 of 1914 on the hypothecation bond against Mt. Chaubai, the widow of Madho Rao, and Aba Sahib the father of the plaintiff, and that they did nob make the plaintiff a party, and further that suit 36 of 1916 was instituted by the father of the plaintiff with the allegation that the decree in suit 18 of 1914 had been obtained collusively and fraudulently, but on account of collusion and fraud that suit 36 of 1916 was struck off in default. Further, that suit 36 of 1916 was null and void in the absence of a certificate of the Collector. The written statement admitted that Madho Rao, the mortgagor of the defendants, was a muafidar in mauza Rauta, and that the muafidars realized money from the zamindar, and that Madho Rao was owner of the zarnindari rights by virtue of purchase. The allegations in the plaint were otherwise denied, and it was pleaded that the present suit was barred under Section 11 and Order 9, Rule 9 Civil P.O., and that the present plaintiff had been fully represented through his father Aba Sahib in suit No. 18 of 1914, which was contested by Aba Sahib, and that the muafi hypothecated in the bond was by no means a non-transferable pension, nor was it necessary to obtain a certificate from the Collector for it. The learned Subordinate Judge framed a number of issues and held that the muafi in suit was untransferable; that the plaintiff had failed to prove that the mortgage of 1905 was for immoral consideration; that as regards the zamindari in that mortgage the suit of the plaintiff was barred by res judicata; but as regards the muafi the suit of the plaintiff was not barred by res judicata because a certificate was required from the Collector under the Pensions Act (Act 23 of 1871), and that certificate not having been granted, the decree in suit 18 of 1914 was void.

(3.) In first appeal in this Court the following points were argued. Firstly, whether the Pensions Act applies to the present case. Under this head Secs.4 and 6 as well as 11 and 12 have been considered.