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PETITIONER: DARBAR SHRI VIRA VALA SURAG VALA,VADIA

       Vs.

RESPONDENT: THE STATE OF SAURASHTRA (NOW BOMBAY)

DATE OF JUDGMENT: 14/04/1960

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. IMAM, SYED JAFFER DAS, S.K. SARKAR, A.K. HIDAYATULLAH, M.

CITATION:  1967 AIR  346            1960 SCR  (3) 521  CITATOR INFO :  R          1981 SC1829  (116)

ACT:        Grant by Ruler to younger son as Bhayat-Son becoming  Ruler-        Whether grant resumable-" Bhayat ", Meaning of.

HEADNOTE: In  the,  Indian State of Vadia succession was  governed  by primogeniture.   The  Ruler in 1943 granted to  his  younger son,  the petitioner, a village in the State  in  perpetuity and in heredity for enjoyment as ’Kapal-Giras’ as ’ Bhayat’. In 1947 the State of Vadia acceded to the Dominion of  India and  by  subsequent constitutional  developments  it  became merged  in the State of Saurashtra.  After the  coming  into force  of  the Constitution the elder son of the  Ruler  and then  the Ruler died, and the petitioner was  recognised  as the  Ruler.   Thereupon  the State of  Saurashtra  issued  a notification  resuming  the grant as it was deemed  to  have lapsed  and  reverted  to  the  former  Vadia  State.    The petitioner  contended  that  the  grant  was  absolute   and unconditional for 522 permanent  enjoyment from generation to generation  and  the State could not resume it: Held,  that the grant lapsed on the petitioner becoming  the Ruler  and the State could resume it.  The grant was to  the petitioner as a " Bhayat ", which word meant a cadet or  the descendant of a younger branch of a Talukdar’s family  where the  estate followed the rule of primogeniture; as  such  if enured for his benefit as long as he remained a cadet.   But when  the  grantee  became the Ruler and ceased to  be  a  " Bhayat ", the grant came to an end.

JUDGMENT:        ORIGINAL JURISDICTION: Petition No. 62 of 1956.        Petition  under  Art. 32 of the Constitution  of  India  for        enforcement of Fundamental Rights.

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      N.H. Hingorani and A. N. Sinha, for the petitioner.        R. Ganapathy Iyer and T. M. Sen, for the respondent.        1960.  April 14.  The Judgment of the Court was delivered by        KAPUR, J.-Prior to the integration of the Indian States with        the  Union of India on the promulgation of the  Constitution        of  India  there  was in Kathiawad a State of  the  name  of        Vadia,   succession  to  the  Rulership  of  which  was   by        primogeniture.   Its Ruler then was Darbar Saheb Shri  Surag        Vala Bavavala.  He had two sons Kumar Shri Krishan Kumar and        the petitioner Kumar Shri Vira Vala Surag Vala.  Kumar  Shri        Krishan Kumar being the elder son was the heir-apparent.  On        July  5,  1943,  the  Ruler Darbar  Saheb  Shri  Surag  Vala        executed two documents in favour of the petitioner  granting        him  in perpetuity and in heredity a village called  ’  Mota        Pithadia’ in the State for enjoyment as ’ Kapal-Giras’ as  ’        Bhayat’.  The word ’ Bhayat’ means a cadet or the descendant        of  a younger branch of a Talukdar’s family where the  State        followstheruloofprimogeniture.   ’Kapal-Giras’means a  grant        in appanage as a birthright to a share in the patrimony.        Sometime in or about August, 1947,the State of Vadia acceded        to  the  Dominion  of India on the  terms  contained  in  an        instrument  of  accession  then  executed.   Thereafter,  on        January  23,  1948,  various States in  the  Kathiawad  area        entered  into  a  covenant  forming  the  United  State   of        Kathiawad,  also called the United State of Saurashtra.   In        terms of this covenant the        523        assets of each State excepting the private properties of the        Ruler, became the assets of the United State.  The  covenant        also provided that the Ruler of each State shall be entitled        to  receive  a  certain  sum as his  privy  purse  from  the        revenues  of  the United State, to retain ownership  of  all        private  properties to be determined in the manner  provided        and  to all personal privileges, dignities and titles.   The        Government of India concurred in the covenant and guaranteed        all its provisions.  The State of Vadia was a party to  this        covenant  and  its  assets therefore became  vested  in  the        United  State.  On September 13, 1948, the United  State  of        Kathiawad  executed a fresh instrument of accession  to  the        Dominion  of  India cancelling the instrument  of  accession        executed by the covenanting States in or about August, 1947.        On  November 13, 1949, the United State of Kathiawad  agreed        to  adopt the Constitution to be framed by  the  Constituent        Assembly of India and further that the Constitution of India        as  from  the date of its commencement would  supersede  and        abrogate  all other constitutional  provisions  inconsistent        therewith in force in the United State.  On the promulgation        of the Constitution of India on January 26, 1950, the United        State merged in the Union of India and became Saurashtra,  a        Part  B  State mentioned in the  Constitution.   The  United        State and therefore its component States since then lost all        separate  existence.   It is not in dispute that  upon  such        merger  all the assets of the United State became vested  in        the Union of India.        On January 27, 1950, Kumar Shri Krishan Kumar, the elder son        of  the  Ruler  Darbar  Saheb  Shri  Surag  Vala  died   and        thereafter  on  May 16, 1950, the Ruler  himself  died.   On        February   12,  1951,  the  President  of  India  issued   a        notification  recognising  the petitioner as  the  Ruler  of        Vadia  with effect from May 16,1950, and he became  entitled        to the rights of the Ruler which the Government of India had        agreed to recognise.  These were the rights reserved to  the        Ruler  under the covenant constituting the United  State  of        kathiawad,  namely,  the  right to a  privy  purse,  to  the        private properties and to the personal privileges, dignities

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      and titles.        524        On  July 2, 1951, the Government of the State of  Saurashtra        issued  a notification declaring that as the petitioner  had        succeeded his father as Ruler, the village Pithadia  should,        pending final orders be treated as Khalsa or Khas village of        the  State of Saurashtra.  The petitioner was then  a  minor        and his mother submitted a representation to the  Government        protesting against the notification.  No reply was  received        to  this  protest.   On  May 23,  1952,  the  Government  of        Saurashtra issued a further notification which stated:        " Whereas the village Pithadia in Vadia Taluka of the Madhya        Saurashtra  District was granted, by Lekh No. 194 dated  5th        July,  1943, as Kapal Giras by the late Ruler  Darbar  Saheb        Suragwala  of the former Vadia State to his second son  Shri        K.  S.  Viravala  in the latter’s capacity as  a  cadet,  in        appanage  grant; and Whereas, the late Ruler and his  eldest        son Shri K. S. Krishna Kumarsinghji predeceased this  second        son  Shri K. S.Viravala, the latter has been  recognised  as        the Ruler of the former State of Vadia with effect from 16th        May, 1950, by the Government of Saurashtra and the President        of  India  as  per  Notification  No.  PD/MS/20  dated  12th        February,  1951,  of the Government  of  Saurashtra  Revenue        Department   (Political)   published  in  the   Gazette   of        Saurashtra   and  Whereas,  pending  the   recognition   the        Government  of Saurashtra had ordered, by  Notification  No.        PD/148/20,  dated 2nd July, 1951, of the Revenue  Department        (Political) that village should be treated as Khalsa village        of the State of Saurashtra and whereas Shri K. S. Viravala’s        status as a Cadet has ceased and the object of the grant  in        appanage   has  terminated  in  consequence  of  his   being        recognised as the Ruler.        Now,  therefore,  the  grant is deemed to  have  lapsed  and        reverted  to the former Vadia State now integrated with  the        State  of  Saurashtra  at  present known  as  the  State  of        Saurashtra with effect from the date of Shri K. S.  Viravala        having  been  recognised as the Ruler of  the  former  Vadia        State in succession to the late Ruler Darbar Shri  Suragwala        of Vadia State, viz., 16th of May, 1950 ".        525        The  petitioner again lodged a protest against  this  latter        notification but this time also received no reply.  On March        9, 1956, he filed the present petition under Art. 32 of  the        Constitution  asking for the issue of a writ  directing  the        respondent,  the  State of Bombay, in which State  State  of        Saurashtra  had  earlier merged, to withdraw or  cancel  the        notification  and to restore the village Pithadia  with  all        collections  and realisations made by it to  the  petitioner        and  restraining  the respondent from giving effect  to  the        notification.        The  petitioner’s  contention is that the village  had  been        granted to him absolutely and unconditionally for  permanent        enjoyment from generation to generation and the State  could        not  resume  it  so long as any of the  descendants  of  the        petitioner   was  alive.   He  contends   that   President’s        recognition  of  him as Ruler of Vadia did  not  affect  his        rights to the village.  The respondent’s contention is  that        the  grant was not absolute or unconditional but it  was  to        remain in force so long as the petitioner continued to be  a        cadet  of the family and that as on his being recognised  as        the Ruler he ceased to be a cadet, the grant lapsed and  the        village reverted to the State.  It is said that the Union of        India  being  entitled  to all the assets of  the  State  of        Vadia, the village has become its property since the date of        the petitioner’s recognition as the

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      Ruler.        The  question therefore is whether the grant lapsed  on  the        grantee becoming the Ruler.  That is a question depending on        the  terms  of the grant.  Capt.  Webb  in  his  compilation        called  " Political Practice in Kathiawad " has defined a  ’        Bhayat’ as a cadet or the descendant of a younger branch  of        a  Talukdar’s  family where the estate follows the  rule  of        primogeniture.   The grant was made by a document  called  a        Lekh or a writing to which was attached a Hakpatrak which is        a  Statement  of rights created by the Darbar to  a  Bhayat.        Both these documents were registered before the Agency.  The        main portions of the.  Lekh        were in these terms:        " Passed by Shree Vadia Darbar Shree Suragvala Bavavala,  to        long-lived  Kumar  Shree  Viravala.   To  wit:-the  Rule  of        primogeniture (i.e., the system        69        526        of  Heir-apparent  and cadets) having been applied  to  this        State, and you being our Kumar (SOD) younger than our eldest        Kumar,  long-lived  Yuvaraj Shree Krishna Kumar  Saheb,  you        are, by this Lekh, given, as Bhayat, for permanent enjoyment        as Kapal Giras, from generation to generation, the village "        Mota-Pithadia ", a village of exclusive jurisdiction of this        State, which is of our possession, enjoyment and  ownership,        with its village, Tal (village site), and Sim with all their        boundaries, fields, Vadis, Kharo, Kharabo, etc., i.e.,  with        all the boundaries of’ the said village, as Giras.  You  may        enjoy  the revenues thereof from the beginning of  the  Year        Samvat 2000.        as  Bhayat,  a  Hakpatrak  (statement  of  rights)  thereof,        according  to procedure has been given.  The same  has  been        attached  herewith.  You and your heirs and  successors  may        enjoy  the  same.  Map and Field-Book of this  village  have        been  made, true copies whereof have been got  prepared  and        given to you ".        The  lekh  conferred various  other  dignities,  privileges,        amenities  and rights on the petitioner.  Thus it is  stated        that  the  petitioner’s marriage will be celebrated  at  the        State expense and the State will arrange for his  education,        that no duties or taxes will be levied on the petitioner  on        account   of  his  residence  in  Vadia  proper,  that   the        petitioner’s  complaint regarding Giras, i.e.,  the  village        granted,  or any other civil matter would be  heard  without        charging any court fee and he would be exempt from  personal        attendance  in  court in civil matters and that  no  process        will  be  issued against him in criminal cases  without  the        permission  of  the  Ruler himself.   All  these  dignities,        rights  and  privileges are appropriate to a  cadet  of  the        Ruler’s family, but have no meaning when applied to a Ruler.        In  the  Hak Patrak it is stated: " In future even  if  your        descendants  are joint or may have divided, any  one  Bhayat        surviving  from  amongst your descendants  shall  enjoy  the        Sudharo Giras and it Shall not        527        revert  to the State till any one Bhayat from  amongst  your        descendants  is  living ". It also states that  the  grantee        will  not sell or mortgage the Giras without the  permission        of the State.        The  grant  and  the Hak Patrak read together  lead  to  the        inescapable conclusion that in its true natures the grant is        a  grant to a cadet of the family and the grant  enures  for        his benefit as long as he remains a cadet.  The expression "        given as Bhayat " is not merely descriptive of the  grantee,        but indicates the true nature of the grant.  Nor do we agree

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      that the expression " given as Bhayat " merely indicates the        purpose for which the grant is made but describes the nature        of the tenure.  The grant states in express terms that it is        given  as  Bhayat for permanent  enjoyment  as  Kapal-Giras,        which means that the grant is to a cadet as an appanage  and        continues  from generation to generation as long as  any  of        the descendants of the grantee is alive.  But if the grantee        ceases to be the younger branch and becomes heir-apparent by        reason of the rule of primogeniture or ceases to be a  cadet        or  Bhayat  for any reason whatsoever, then the  grant  must        come  to  an end.  This is what the rights  and  liabilities        mentioned  in  the grant itself and also in the  Hak  Patrak        show;  for example, with regard to the right of  succession,        the  Hak Patrak states that even if one Bhayat from  amongst        the descendants survives he shall enjoy the Giras and  there        will be no reversion to the State.        This, in our opinion, shows that the grant enures as long as        there is a Bhayat.  If there is no Bhayat the grant  lapses.        If  on  a  true  construction the grant  is  of  the  nature        indicated above, then no question of reading an implied term        in  the  grant  arises;  nor  is  there  any  necessity   of        determining whether the petitioner has become a ruler in the        sense  in which his father was a ruler of the  Vadia  State.        Whatever  be the reason for which the petitioner has  ceased        to  be a Bhayat, either by reason of the death of his  elder        brother or by reason of his becoming a ruler in the  limited        sense of the Constitution, he has ceased to be a Bhayat  and        the grant being given as Bhayat for        528        permanent enjoyment as Kapal-Giras, it has come to an end.        In  that view of the matter the petitioner must be  held  to        have failed to make out any infringement of his  fundamental        :’right  by reason of the notification dated May  23,  1952.        The  infringement  which  the  petitioner  complains  of  is        deprivation of his property by State action and he bases his        right  on  the terms of the grant.  If the grant is  not  an        absolute  grant  in  the  sense  in  which  the   petitioner        contends, but is a grant which by its very nature contains a        defeasance  clause,  then the petitioner  cannot  found  his        claim on any violation of his fundamental right.        The petition is therefore dismissed with costs.        Petition dismissed.