J. Subba Row vs J. Rama Row and Another

Miller, J.—The plaintiff claimed in the suit out of which this appeal arises one-half of the income of the Jaghir which, it is admitted, is a

pension within the meaning of the Pensions Act. The first question to be determined is whether the certificate by the Collector justifies the Court in

entertaining the claim of the plaintiff and making the decree it has made. The certificate Exhibit G is, in the following terms. "" Jangamakoti Rama

Rao is authorized to file a civil suit to establish the annual payment due to him from the net income of the Jaghir."" The certificate is granted in

accordance with the orders of the Government contained in G.O. No. 668 Revenue dated 18-8-03. The appellant contends first that the certificate

is to be considered as authorizing only a suit for maintenance and that "" payment due to the plaintiff from the net income"" means the allowance

which the first defendant as the manager of the Jaghir ought to have given him when he was managing it and that it does not justify the court in

entertaining a claim for a certain share of the profits of the Jaghir. The contention is that as in this certificate the Government order is referred to, the

terms of that Government order ought to be read into the certificate. If we do so, we must take it, having before us the Government order and the

recommendation of the Collector on which it was made. That it authorised in 1890 a certificate to file a suit for maintenance; that is what the

Collector recommended. As a matter of construction, I do not think that contention can be allowed. The words "" the certificate is granted in

accordance with the orders of Government"" cannot, I think, mean that we ought to read the wards "" annual payments"" as meaning "" annual

payments as defined by the Collector''s letter which is accepted by the Government."" I take it that "" granted in accordance with the Government

order"" properly means "" I am by that order to which I refer authorised to issue a certificate to this person and I issue it accordingly,"" and that

annual payments due to him from the net income of the Jaghir"" meant, and must be taken, as the words stand, to mean either a share in the profits

or an allowance for maintenance; the words are certainly capable of both meanings. The question then arises assuming that the Court is right in

holding that on that certificate the plaintiff is entitled to sue to establish his share, whether having regard to the Government order, the Collector had

any power to issue a certificate which would hive that effect. The order of the Government is found in Exhibit II and is merely to the effect that "" the

Board''s recommendation in paragraph 5 of its proceedings is approved."" The Board''s recommendation in paragraph 5 of its proceedings is "" The

Collector recommends that Rama Rao may be allowed to sue the managing member for his maintenance allowance for two years."" And the

Collector''s recommendation was that he should "" be allowed to sue for his maintenance for two years and to have it fixed for the future"" and the

Collector''s certificate as I understand it, merely allows the plaintiff to sue for a declaration as to how much should annually be paid to him out of

the net profits of that estate. Whether that is strictly authorized by the G. O. or not, is, I think doubtful. Reading Ex. II along with Ex. I and Ex. E

(which refers to a fair division of the collection, it seems to me that the Government never considered the question from any point of view except

this, that the Jaghir was not to be divided, there was to be no dual control in respect of the management and consequently it is difficult to say that

the Government when it accepted the recommendation that the plaintiff should be allowed to sue for maintenance--would not have accepted as

within that recommendation this suit in which the plaintiff claims only a share of the net profits from the Manager of the Jaghir. The family we are

given to understand is a divided family : it is so stated in the plaint, and it is divided in respect of all of its possessions except the Jaghir.

Consequently it seems unlikely that the Government really contemplated that the Jaghir should be treated on the footing of an undivided family

property, the manager distributing maintenance and utilizing the remainder for family purposes. So I am not prepared to say in the circumstances of

the case that though the recommendation on which the Government order is based in terms authorizes only a suit for a maintenance, the Collector

might not have without departing from the true intent of the G. O. authorized a suit to have it declared, at any rate as between the first defendant

and the plaintiff, how the profits of the Jaghir are to be distributed by the 1st defendant. In one respect however the Collector''s certificate does

not, as I understand it, go so far as was intended by Government, It does not permit the Court to entertain a claim for the recovery of anything. It

authorizes the Court to establish, that is, to declare formally what is the share of the profits to which the plaintiff is in law entitled and does not

authorize or purport to authorize any claim to past accounts or to the collection of arrears or to the recovery of anything. I admit I have taken with

some hesitation, the view that the certificate is covered by the Government order. But finding myself able to take that view and to hold that the

Government by the word maintenance did not intend to restrict the certificate further then to see that the Jaghir was not divided I do not think it

necessary to decide whether the rule published in the Board''s Standing Orders p. 124 is or is not within the competence of the Government. The

result of the view I have taken on this preliminary matter is that the Collector''s certificate justifies the Court in deciding what share of the profits of

the Jaghir the plaintiff is entitled to and in making a decree declaring the extent of that share.

Then, it is said that the suit is barred by limitation, because the plaintiff''s claim to a share in the income of the Jagir was refused by the 1st

defendant more than 12 years before the suit. The reply to that is this, that there was an agreement between the plaintiff and the 1st defendant that

the latter should be allowed to retain possession of and manage the jaghir unmolested until the family debts were discharged. The proof of that

arrangement rests mostly upon the oral evidence and we have not been asked to believe the evidence of the 8th witness for the plaintiff, one Mr.

Seshagiri Rao. His evidence proves that there was an agreement of the kind, though it may be, it does not go so far as the plaintiff alleges. This

witness does not say whether there was an actual agreement as to what was to be done after the debts had been paid. But he does say, I think

without doubt, that there was agreement between these two parties that there should be no quarrel about the jaghir until the debts had been paid

off, that the defendant was to remain in possession and management, and the 1st defendant, he says, consented to this and whenever he went to

the village he learnt that the parties were acting up to his advice. Therefore, I think that for that period, that is, a period up to a point within 12

years before the suit, at any rate the first defendant was in possession by virtue of an agreement with the plaintiff that there should be no contest

about the jaghir until the debts were paid off. And, consequently this suit for declaration being brought within 12 years from the date the debls were

discharged (that is not disputed) is not barred by limitation. These are the two principal questions in the case. But, further, on behalf of the

appellant it is suggested that by the documents which are marked Exhibit V series the Board of Revenue cancelled the Collector''s certificate

Exhibit G, and substituted another for it and that being so, the certificate on which the Court has acted must be held to be no longer valid. The

decision in Bhimbhat Gotkhandi v. Bhikambhat ILR (1899) B. 676 which was brought to our notice by Mr. Krishnasami Iyer, is he admits, against

him. And there is certainly nothing either in any rule or in the Pensions Act itself to suggest that a certificate once given by the Collector can be

cancelled by the Chief controlling Revenue authority. It is said that it is within the general powers of supervision of the Board of Revenue to control

the issue of the certificate, but there is nothing to support that, and it is perhaps unlikely, at any rate, that the Board of Revenue should be given the

power to cancel a certificate which, according to their Standing Order, can only be given with the sanction of the Local Government. Certainly

there'' is nothing in the Act to suggest this power. Therefore, it seems to me that Exhibit V(c) should not be taken to cancel Exhibit G. and we do

not know, as a matter of fact, from the papers filed in the case, whether the Board directed the Collector to withdraw Exhibit G. and substitute

Exhibit V(c) or what the terms of the order sent down to him are. I think, therefore, that, both as regards the fact and as regards the law, it is not

shown that Exhibit G. has been withdrawn by the Board of Revenue or superseded,. The result will be that this appeal will have to be dismissed;

but the decree will have to be modified by striking out so much of it as relates to claims which are not authorised by the certificate.

Appeal No. 184 of 1910.

This is an appeal from the final decree in the same matter. This decree will have to be modified to the extent that anything more than the

declaration of the plaintiff''s right to part of the net income will be struck out and the appeal will be allowed to that extent.

As regards costs, I think, that the plaintiff should be allowed half his costs in the lower court and each party should bear his own costs in this

Court.

Appeals Nos. 79 and 184 of 1910.

Sadasiva Aiyar, J.

As regards the Certificate, Exhibit G, I agree in thinking that it only authorizes a suit for a declaration of the amount which the plaintiff is entitled

to get out of the net income of the Jaghir annually from the 1st defendant and does not authorize a suit for the recovery of arrears or for accounts

or for the appointment of a Receiver and the like reliefs contained in the plaint. As regards the Government''s power to control the discretion given

to the Collector by statute to issue a certificate, I do not think that Section 14 of the Pensions Act relating to the framing of rules or bye-laws in

connection with mere ""formalities of procedure"", keeping of registers and records and such like matters authorizes either the Board of Revenue or

the Government to reduce the Collector to the position of a mere clerk registering the orders of the Government in each particular case in which

the Collector would have to excercise his statutory discretion u/s 6 of the Act whether to issue a certificate or not. I am also inclined to hold that

the rules issued by Government and printed at page 125 of the Board''s Standing Orders could not be considered as rules framed u/s 14, and they

do not state that they were framed by the Board of Revenue with the consent of the Government. Of course, there is a presumption that all official

acts have been done in accordance with the law, and if those rules declare that they were framed by the Board of Revenue u/s 14, we might

presume that the consent of Government had also been obtained for the rules so framed. Or if Section 14 says that, after the Government has given

its consent to the rules framed by the chief controlling Revenue Authority, that is, the Board of Revenue, they should be issued by the Government,

then if the Government issues some rules, we might presume that they were framed by the Board of Revenue with the consent of the Government

and issued according to the statute. But when Section 14 is silent as to the issuing of any rule by the Government, the mere recitation in the

Board''s Standing Orders that certain rules have been issued by the Government cannot raise a presumption that they were framed by the Board of

Revenue with the consent of the Government. I am, therefore, inclined to hold that these rules are ultra vires and the Collector''s certificate is valid

without the sanction of the Government.

Then, as regards the question of the share which is due to the plaintiffs under the law I agree that he must be held entitled to half the net-income

after deducting all usual charges.