JUDGMENT Darling S.M. 1. This is an appeal u/s 45 of the Encumbered Estates Act against the order of the Collector of Agra, dated the 22nd November, 1935, passed u/s 6 of the Act on the application of Lala Ram Sarup and others laid u/s 4. The present case is similar to that of Lala Gobind Prasad, in which this Court has just passed orders. The present principal applicants, L. Ram Sarup and L. Girwardhari Lal, are full brothers of the said L. Gobind Prasad: apparently they all belong to a joint Hindu family. In the case now before the Court Seth Shridhar Lal, a creditor, objects that the applicants are not landlords within the definition of Clause (g) of Section 2 of the Act: they therefore come to this Court in appeal. 2. In ground 5 of the petition of appeal it is urged that the Respondents in their application u/s 4 have not given the names of all the members of the joint family from which they intend to separate. L. Ram Sarup, one of the leading applicants, has two sons, only one of whom, a minor named Lala has been joined in the application: it is urged that the other son is unnamed and does not appear in the Schedule of the remaining members of this joint Hindu family, from whom the applicants intend to separate. In the body of the application it is set forth that L. Ram Sarup has another son, unnamed, who is not joining in this application: L Ram Sarup is concealing nothing: through some oversight he has omitted to name this other son both in this particular sentence and in the Schedule. Previously in the body of the application it is set forth that the applicants intend to separate from the remaining members who have not joined in the application: by the subsequent mention of this other son of L. Ram Sarup it is quite clear that this other son should be included amongst the other members who are not joining in the application. The omission to name this other son does not invalidate the application but, inasmuch as it may be necessary for the Special Judge to issue a notice on this other son of L. Ram Sarup, the applicants will be given an opportunity of amending their application by giving the name of this party and by including him in the Schedule of those members of the family who have not joined in the application. 3. Section 6 of the Encumbered Estates Act opens as follows: When an application has been duly made according to the provisions of Section 4, the Collector shall forthwith pass an order that it be forwarded to the Special Judge. 4. It is incumbent on the Collector to satisfy himself by enquiry that the application has been duly made: in the present case no enquiry whatsoever was carried out: the Collector's order u/s 6 was passed on the very day on which the application was presented u/s 4 The attachment of a copy of the Khewat to the application, as required by Rule 1 does not absolve the Collector from his responsibility: this extract from the khewat is merely a piece of evidence which may be rebutted by an objecting party: at the very least it requires elucidation by the formal evidence of the patwari. In the present case it is pleased that the share of the applicants as members of a joint Hindu family is insufficient to bring them within the definition of a landlord as set forth in Clause (g) and the proviso attached thereto of Section 2 of the Act. It is only the Collector who can give a decision on this point: consequently it is not open to the Collector to leave the decision to the Special Judge. The appeal is accordingly allowed: the order of the Collector, dated the 22nd November, 1935, is hereby set aside. The case is remanded for decision according to law back to the Court of the Collector of Agra, who will keep it in his own Court The following issue is framed: Are the applicants, L. Ram Sarup and L. Girwardhari Lal and others, as members of a joint Hindu family land lords within the terms of Clause (g) of Section 2 and of the proviso attached thereto?-fact and law on applicants. 5. 5. If after hearing parties and recording any further evidence, either oral or documentary, which may be offered; the Collector finds that the applicants are landlords within the meaning of the Act, then he will pass a fresh 0rder u/s 6, which will forthwith be forwarded to the Special Judge In the meanwhile the Collector will forward a copy of this appellate order to the Special Judge with the suggestion that proceedings in his Court be stayed pending the result of the enquiry now ordered. It will be open to either party who may feel aggrieved by the new order of the Collector passed u/s 6, whatever this may be, to come to this Court again in appeal u/s 45 of the Act. Costs will abide result including Rs. 20 for lawyer's fees on either side for the day's hearing in this Court. Bomford J.M. (December 5, 1936). 6. I agree.