HARSHADLAL AMBALAL DESAI Vs. BAI ICHHA

JUDGEMENT

(1.) This is a revisional application under Section 25 of the Provincial Small Cause Courts Act, 1887. the plaintiff sued to: recover her share of the desaigiri money received by the defendant for the years 1938-39, 1939-40, 1940-41 and 1941-42, The learned Judge passed a decree in favour of the plaintiff for Rs. 40, costs of the suit and interest.

(2.) Two points have been raised on this application. Both go to the question of the maintainability of the suit. The first point is that the suit is not maintainable under Secs.4, 5 and 6 of the Pensions Act, 1871. It is contended that the jurisdiction of the civil Court is barred in all suits relating to any pension or grant of money or land revenue conferred or made by the British or any former Government, and a civil Court can only entertain a suit of this nature provided a certificate is obtained from the Collector under Section 6. Now it has got to be remembered that in this case there is no dispute as to the right of the plaintiff to receive her share in the pension nor is it suggested that the defendant wrongfully received the pension from Government. The plaintiff's case is that the defendant having rightfully received the pension wrongfully retained her share of the pension. Therefore to my mind the nature of the suit is suit for moneys had and received and not in respect of any pension payable by Government.

(3.) Mr. N. C. Shah has drawn my attention to two decisions of our Court, first Babaji Hari v. Rajaram Ballal (1875) I.L.R. 1 Bom. 75, and the other Bhikaji Hari V/s. Radhabai (1913) I.L.R. 37 Bom. 700 Now in both these cases the right to receive the pension was in dispute. It is true that in Babaji Hari V/s. Rajaram Ballal Mr. Justice West says (p. 79): As it stands, the section extends to all suits relating to any grant of money made by Government ; and the plaintiff, who seeks a share in such a grant from his alleged co-sharers must, we think, be said to bring a suit relating to the grant.