GANGAGIR JANKIDAS Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) The question in this appeal is whether the plaintiff-appellant's suit is barred for want of a certificate under as, 4 and 6 of the Pensions Act, XXIII of 1871, as the trial Court has held.

(2.) One Kushalbhai Neechabhai had obtained a Sanad for an allowance computed in respect of his Desaigiri Haq in 1878. His widow Bai Kashi sold the allowance to the plaintiff appellant on May 3, 1922, for Rs, 5000. The appellant after his purchase applied to the Collector to have his name entered in the register under the Watan Act, and on August 8, 1923, he was informed by the Mamlatdar of Chikhli that the Commissioner had ordered it to be entered. But on November 29, 1923, the Mamlatdar informed him that his name had been entered only during the life time of Bai Kashi. The plaintiff accordingly filed the present suit against the Secretary of State for a declaration that he was the full owner of the Desaigiri cash allowance standing in the name of Bai Kashi and was entitled to hold the same absolutely in the revenue records, and for an injunction that the Secretary of State should be ordered to enter the plaintiff's name as the full owner and not only during the life-time of the defendant No. 2, Bai Kashi. The defendants objection that the suit could not be entertained in the absence of the certificate under sections 4 and 6 of the Pensions Act was upheld by the District Judge on the authority of Dwarkanath Amrit V/s. Mahadeo Bal-kriahna, s.c. 14 Bom. L.R. 938. The plaintiff appeals.

(3.) It is argued for the appellant, firstly, that the Act should be strictly construed, limiting as it does to the right of the subject, and that the Collector's powers were exhausted by the first order granting the plaintiff's application, and that he could not, therefore, make the second order, and no certificate under the Pensions Act was necessary. Secondly, for the same reason, the second order is void, and such a suit as the present lay without a certificate.