Judgement Appeal from a decree of the High Court (July 10, 1905) modifying a decree of the Subordinate Judge of Jhansi (June 30, 1902). The respondent sued the appellant for a partition of certain villages, houses, and lands. The former was the son and the latter the grandson of Jagdeo Rao, who died on January 6, 1872, and was succeeded by his two sons, the respondent and Sultanji Rao, the appellants father. He left two villages in the Bombay Presidency, named Mahur and Warur Buzurg, and three villages in the district of Jhansi, which latter had been granted to him on May 2, 1866, as perpetual muafi jagir by way of reward for good services during the Mutiny of 1857. Mutation of names was made in favour of the respondent and Sultanji Rao. With regard to the three villages, their names were entered in respect of an eight annas share each in each village. In respect of Mahur and Warur Buzurg the respondent and Sultanji Rao were, according to the rules in force in the Bombay Presidency, declared to be the heirs, and the name of the eldest son (the said Sultanji Rao) was alone entered. Sultanji Rao died on April 22, 1893, and mutation of names in respect of his share was thereupon made in favour of his son, the appellant. In April, 1899, the respondent applied to the Revenue Court for a perfect partition of the three Jhansi villages, with the result that it was eventually decided by the Board of Revenue that the question as to whether the property was capable of partition should be decided by the Civil Court. In his plaint which was thereupon filed on March 18, 1901, the respondent specified the various properties of which he sought partition. The appellant pleaded that according to law and custom all the property in suit was incapable of partition, and that, as the respondent had not before suing produced a certificate under s. 6 of the Pensions Act, XXIIL of 1871, the suit could not be pro ceeded with. That Act was passed " to consolidate and amend the law relating to pensions and grants by Government of money and land revenue." Sects. 4 and 6 are as follows " 4. That Act was passed " to consolidate and amend the law relating to pensions and grants by Government of money and land revenue." Sects. 4 and 6 are as follows " 4. Except as hereinafter provided, no Civil Court shall entertain any suit relating to any pension or grant of money or land revenue conferred or made by the British or any former Government, whatever may have been the consideration for any such pension or grant, and whatever may have been the nature of the payment, claim or right for which such pension or grant may have been substituted." "6. 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." The Subordinate Judge held that the whole of the suit, except so far as it related to the lands in Mahur, was governed by s. 4 of the Pensions Act (Act XXIII. of 1871). As the certificate prescribed by s. 6 of the Act had not been produced, he decided that he could not entertain the suit so far as it related to Mahur and houses situate in it and Warur Buzurg and houses situate in it. He thought, however, that, having regard to the orders of the Revenue Courts, he was not debarred by s. 4 of the Pensions Act from entertaining the suit so far as it related to the three Jhansi villages, and he found that the respondent was entitled to have them partitioned. As to certain patelgi land and 440 odd acres of zamindari land in Mahur, the Subordinate Judge decided that they were not governed by s. 4 of the Pensions Act; and in the result, by his decree dated June 30, 1902, he ordered that the claim of the respondent in respect of (1.) the three villages, (2.) the said patelgi land (with rights), and (3.) a half-share of the 440 odd acres of zamindari land in Mahur (less 173 acres 27 gunthos) should be decreed, but that the rest of his claim should be dismissed with proportionate costs. The High Court recorded that only two matters had been pressed before them by the appellant. With regard to these they observed " They are in respect of the three villages in the Jhansi district and a portion of the 440 acres of land in the Poona district in respect of which the claim for partition was allowed. As regards the three villages in the Jhansi district, the objection which was raised in the grounds of appeal is that the property was subject to the provisions of the Pensions Act, No. XXIII. of 1871, and that no certificate was obtained under s. 6 of that Act before this institution of the suit, and so the Court had no jurisdiction to try the case. That defect, if any, has been cured. This Court allowed the hearing of the appeal to be adjourned in order to enable the respondent to procure a certificate, and so avoid the necessity of disposing of the technical question raised in regard to it. The result is that the appeal in respect of the three Jhansi villages fails." With reference to certain cross-objections filed by the respondent, the High Court included in its decree the following directions—(1.) That the plaintiff be allowed to abandon his suit as regards the eight annas share in the village Mahur, with liberty, if so advised, to bring a fresh suit in regard to it. (2.) That the eight annas share in the village Warur Buzurg be included in the operation of the decree. (3.) That the houses situate in the villages Warur Buzurg and Mahur be included in the decree for partition, and that in other respects the decree of the First Court be confirmed. The Gruyther, K.C., and P. C. Dutt, for the appellant, contended that the impartible character of the property in suit had been finally determined by Order of Council of Regency in the Gwalior State. It was from its nature and character impartible in law, and the Courts of the North-West Provinces could not partition property in the Bombay Presidency. The Gruyther, K.C., and P. C. Dutt, for the appellant, contended that the impartible character of the property in suit had been finally determined by Order of Council of Regency in the Gwalior State. It was from its nature and character impartible in law, and the Courts of the North-West Provinces could not partition property in the Bombay Presidency. With regard to the village of Warur Buzurg the High Court wrongly decided that the sanad relating thereto must be construed not as a grant of land revenue, but as a grant of the right of the soil to the grantee subject to certain conditions, and in holding that therefore the Pensions Act did not apply to it. Preference was made to s. 3 of the Pensions Act and to s. 6 of Bombay Regulation XXIX. of 1827; the Report of the Inam Commissioners, Bombay, 1873, by Colonel Etheridge, p. 4, pars. 10 and 11 ; Ramchandra v. Venkatrao (( 1882) I. L. R. 6 Bomb. 598, 602, 606); and Handbook for Revenue Officers in the Presidency of Bombay, by Alexander Kyd Nairne, B.C.S., 1872, c. 23, pp. 341 and 343. The Civil Court was not competent to try the suit without the production at the time of instituting it of the certificate prescribed by the Pensions Act. That defect could not be cured at a later stage in the proceedings. Reference was made to Muhammad Azmat Ali Khan v. Lalli Begam (( 1881) L. R. 9 Ind. Ap. 8, 20.), where it was held that on receipt of a certificate the Court might take cognizance of a pending suit, and to Adrishappa v. Gurushidappa. (( 1880) L. R. 7 Ind. Ap. 162.) All the property in suit was within the purview of the Pensions Act, and as regards a considerable portion thereof no certificate had at any time been granted. It was contended also that the suit as to Mahur in reference to which the plaintiff had been unable to obtain a certificate, should have been dismissed instead of withdrawn, with liberty to bring a fresh suit. It was contended also that the suit as to Mahur in reference to which the plaintiff had been unable to obtain a certificate, should have been dismissed instead of withdrawn, with liberty to bring a fresh suit. Ross, for the respondent, contended that the High Court was right in regard to the three Jhansi villages in allowing the defect as to the certificate to be cured by its production during the appeal; also in holding that the village Warur Buzurg and its houses were not within the purview of the Pensions Act. The Mahur village and houses were rightly included in the decree. De Gruyther, K.C., replied, citing Sultan Sani v. Ajmodin (( 1892) L. R. 20 Ind. Ap. 50.), and " The Land Systems of British India," by B. H. Baden Powell, vol. 3, "Inam Tenures," p. 140. The judgment of their Lordships was delivered by LORD COLLINS. The question in this case is as to the respective rights of certain members of the family of one Jagdeo Rao, who was Commander-in-Chief of the Maharaja Scindia, of Gwalior, at the time of the Indian Mutiny, in respect of certain villages and lands, situate part in Bombay and part in the North-West Provinces, an interest in which was conferred upon him by the British Government in perpetuity as a reward for his services subject to the conditions of loyalty and the payment of an annual sum. The appellant, Sardar Ganpat Rao, is the eldest son of Sultanji Rao, deceased, who was the eldest son of Jagdeo Rao. The respondent, Anand Rao, is the third surviving son of Jagdeo Rao. His second son, Tantya, was adopted into another family before the death of Jagdeo Rao. This litigation began through a claim put forward by Anand Rao for a partition of all the family property. Ultimately the present suit, which was brought by Anand Rao, as plaintiff, against his nephew, Sardar Ganpat Rao, for partition, came before the Subordinate Judge of Jhansi. Numerous issues were stated and disposed of by the learned judge, but that which was most discussed in respect of each portion of property embraced in the claim was that which raised the question whether the want of a certificate under s. 6 of the Pensions Act, XXIII. of 1871, was a bar to the action in respect of each of the portions of land in which rights were claimed. of 1871, was a bar to the action in respect of each of the portions of land in which rights were claimed. The learned judge made a list of each of the parcels and dealt with them separately. He held that the want of the certificate was a bar as to all but a few of the parcels, namely, (a) three Jhansi villages, as to which he held that a certain order made by the Collector of Jhansi of October 26, 1899, was equivalent to a certificate under s. 6, and (b) certain portions of land in the village of Mahur, as to which he held that the property in the soil itself, not the mere right to a revenue therefrom, was the subject-matter of the claim, and therefore did not fall within s. 6 of the Act; but as to all the rest of the parcels, including the village of Warur Buzurg and the lands therein, he held that s. 6 applied and dismissed the claim. The defendant thereupon appealed to the High Court, and the plaintiff filed an objection under s. 561 of the Code of Civil Procedure, claiming in effect that he was entitled to have his whole claim decreed. But by the time the appeal came to be heard the field of controversy was considerably narrowed. The Court at the outset of their judgment say " Only two matters have been pressed before us in appeal by the learned counsel for the appellant. They are in respect of the three villages in the Jhansi district, and a portion of the 440 acres of land in the Poona district, in respect of which the claim for partition was allowed." They then go on "As regards the three villages in the Jhansi district, the objection which was raised in the grounds of appeal is that the property was subject to the provisions of the Pensions Act, No. XXIII. of 1871, and that no certificate was obtained under s. 6 of that Act before the institution of this suit, and so the Court had no jurisdiction to try the case. That defect, if any, has been cured. This Court allowed the hearing of the appeal to be adjourned in order to enable the respondent to procure a certificate, and so avoid the necessity of disposing of the technical question raised in regard to it. That defect, if any, has been cured. This Court allowed the hearing of the appeal to be adjourned in order to enable the respondent to procure a certificate, and so avoid the necessity of disposing of the technical question raised in regard to it. The result is that the appeal in respect of the three Jhansi villages fails." They then deal with that part of the 440 acres in respect of which partition was allowed, and agree with the Subordinate Judges decision, which is one of fact, thereon. Therefore on q this point also the appeal failed. They then deal with the respondents objections. First, that the village of Mahur should not have been excluded from the decree in favour of the plaintiff, as it was not covered by s. 6 of the Pensions Act. On this point they allow the plaintiff to abandon his suit as regards that village, with liberty, if so advised, to institute a fresh suit in regard to it. The only exception as to this was that the terms as to costs were too easy upon the plaintiff. But the matter was clearly in the discretion of the Court in view of the circumstances to which they refer. The next relates to the village of Warur Buzurg, as to which the learned Subordinate Judge had held that, though it came within s. 6 of the Pensions Act, the want of a certificate was sufficiently met by the order above referred to. The High Court, without expressing any opinion on that point, held that the sanad by which the British Government on December 1, 1866, confirmed the land to Jagdeo Rao was not a grant of land revenue, but of the soil of the village itself, and consequently that the Pensions Act did not apply. Their Lordships are not disposed to differ from the two judges of the High Court on a question of construction, particularly as it seems to them that the learned Subordinate Judge, for the reasons he gave, was fully justified in treating the order as dispensing with the certificate. The learned judges go on to point out that counsel for the respondent had abandoned his point as to the property in Mahur contained in the five deeds of sale. The learned judges go on to point out that counsel for the respondent had abandoned his point as to the property in Mahur contained in the five deeds of sale. They also treated the houses in Mahur and the Poona district as covered by the reasons given in regard to the remainder of the 440 acres included in the decree and partitioned. Their Lordships see no reason to differ from these conclusions. The result is that in their Lordships opinion the appeal fails and should be dismissed with costs, and they will humbly advise His Majesty accordingly.