HAIDAR SAHEB GULAM HUSSEN Vs. MUNIRODDIN CHHOTEMIR PIRJADE

JUDGEMENT

(1.) The plaintiff sued for a declaration that he was entitled to get his name entered in place of the deceased Abas Ali and to do the work as the chief sharer in his place in connection with the moveables belonging to and the allowance available to the Darga of Peer Sayyad Sadamsha Hussaini and for an injunction restraining the defendant from obstructing him in doing the work and getting his name entered in place of Abas Ali. The first Court, the Joint Subordinate Judge of Nasik, granted plaintiff the declaration he sought, but on appeal by the defendant the District Judge of Nasik set aside the decree on the ground that the Court had no jurisdiction to grant the declaration asked for. This is a case under the Pensions Act in which there does not appear to be any reported authority. The facts are that there is a Darga at Nasik which owns certain property and receives a cash allowance from Government. The last holder was one Abas Ali who died in 1919. He had two brothers Chhotemir who died in 1908, and the present plaintiff. Chhotemir left three sons, and the plaintiff also has two sons. Before the death of Abas Ali by a deed of gift he conveyed his property to his nephews the sons of plaintiff and Chhotemir, but he did not make any reference to the cash allowance. In addition to Abas Ali there are four other sharers, the allowance being divided amongst five sharers. It is admitted that the plaintiff being a brother of the deceased, is entitled under Mahomedan law to succeed in preference to the nephews, or rather that he is a nearer heir than the nephews. And the present suit is brought because the name of the eldest nephew has been entered in the Collector's books and the cash allowance is paid to him. The learned District Judge was of opinion that no such suit would lie in view of Section 6 of the Pensions Act XXIII of 1671, which says: A Civil Court, otherwise competent to try the same, shall take cognizance of any such claim upon receiving a certificate from such Collector, Deputy Commissioner or other officer authorized in that behalf that the case may be so tried, but shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly.

(2.) The learned District Judge states in his judgment that he is unable to assume that anybody has a right to have his name entered in the Government records for this pension or allowance, still less that such a right is heritable. The parties have both excluded, all evidence as to custom, so it is not as a customary right that we are to consider it, It was stated in the hearing of the appeal on the preliminary point of jurisdiction and the Collector's certificate that the right of management depended on getting one's name entered in Government records. If the question agitated in this suit is about a right claimed both by plaintiff and defendant, to what liability does that right correspond ? The plaintiff sues for a declaration of right to get his name entered : the corresponding liability is on the part of the Collector to enter the name. It is the action of the Collector in refusing to enter it that has given rise to the suit. Nobody else can enter names, but the Collector.

(3.) He goes on to say : But the dispute is as to whose name ought Government to enter as a recipient as one of the five to whom the money is paid. By entering the name, Government announces the intention of paying that person. If Government is liable to pay by entering the name, the liability to that person would be created, so far as Government is concerned. A suit to enforce that would be barred by Section 6. If there were no liability, there would he no suit possible.