26 February 1970
Supreme Court


Case number: Appeal (civil) 1370 of 1966






DATE OF JUDGMENT: 26/02/1970


CITATION:  1971 AIR  910            1970 SCR  (3) 837  1970 SCC  (1) 702

ACT: Constitution  of India, Art. 372(1)-Ruler by order  applying law of primogeniture to one Jagir and making it  impartible- If Order legislative and therefore valid.

HEADNOTE: L had two sons G and M. L. and his elder son G were  granted a  Jagir by the then Ruler of Kotah jointly in their  names, in  lieu  of  a debt which the Ruler  owed  to  them.   This property  was treated as property of the joint family of  L. The name of M, the second son born after the grant, was also mutated  against  the  Jagir villages.   The  names  of  the descendants  of  G and M were from time  to  time  similarly mutated  against the Jagir and this Jagir as well  as  other property  of the joint family was managed for some  time  by the eldest member belonging to either branch of the  family. The  respondent C was a descendant of G and claimed in  1937 before  the Revenue Commissioner that as the eldest  son  in the  eldest  branch he alone had the right  over  the  Jagir according  to  the  custom  and  usage  in  Rajputana   and, consequently, mutation in the records should be in his  name alone.   On a report by the Revenue Commissioner, the  Ruler passed  an order on 22nd January, 1938, directing  that  the Jagir,  like all -other Jagirs in the State should be  given the  status of an impartible estate and should be liable  to render  ’Chakri’  and  ’Subchintki’ to the  Ruler.   It  was further ordered that the Jagir would be governed by the rule of  primogeniture,  so  that C alone would  be  held  to  be jagirdar. The  appellants,  who  were the  descendants  of  M,  sought partition  of  all  the  family  properties  including   the villages  in the Jagir.  Although the Trial Court  dismissed the  suit,  on appeal, the High Court granted  a  decree  in respect of other properties but upheld the dismissal of  the suit in so far as the appellants had claimed a share in  the Jagir. The  appellants  claimed that the jagir  having  been  joint Hindu property, their rights as successors-in-interest of  M could  not  be  defeated by the order of  Ruler  dated  22nd January,   1938,  and  consequently,  the  appellants   were entitled  to  their  proper  share in  the  Jagir.   It  was



contended  that  all  orders passed by  an  independent  and sovereign  Ruler do not have the force of law.  It  is  only those  orders which purport to lay down a law for the  State which  cannot be challenged and which would remain in  force even after the merger of the Kotah State in India and, after the  enforcement of the Constitution, under Art. 372 of  the Constitution.  It was submitted that, when passing the Order dated  22nd  January, 1938, the Ruler  was  only  exercising executive powers of directing mutation of names and was  not exercising any legislative powers. HELD:     Dismissing the appeal. (i)  The  High Court was right in holding that the  villages in  the Jagir, at the time when the suit for partition  was’ instituted, were impartible                             838 property  governed by the law of primogeniture and  C  alone could be treated as the owner of these villages. (ii)The  very  nature of the Order, which  changed  the  law applicable to the Jagir, indicated that it was a legislative act  and  not  a mere executive order.  The  Ruler  did  not purport  to lay down that the Jagir was already governed  by the  ’rule  of primogeniture; what he did was to  apply  the rule  of  primogeniture to this Jagir for future.   Such  an order  could only be made in exercise of his prerogative  of laying  down the law for the State.  The mere fact  that  it was laid down for one single Jagir and was not a general law applicable to others in the State was immaterial, because it does  not  appear that there were any other  similar  Jagirs which  also  required alteration of the  law  applicable  to them.  L843 B-D] (iii)Although no special procedure of law-making was adopted by the Ruler when making this Order, that circumstance could not change the nature of the Order specially when there  was nothing to indicate that there was any recognised  procedure of law-making in the Kotah State at that ,time. [844 F-G] Rajkumar  Narsingh Pratap Singh Deo v. State of  Orissa  and Another [1964] 7 S.C.R. 112; referred to. State  of  Gujarat, v. Vora Fiddali  Badruddin  Mithibarwala [1964]  6  S.C.R. 461 and Major Ranjit Singh Rao  Phalke  v. Smt.   Raja Bai Sahiba (dead) by her  legal  representatives and  Vice  Versa  Civil Appeal Nos. 982  :and  983  of  1964 decided on 18th July, 1967 ; distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1370 of 1966. Appeal from the Judgment and decree dated February 16,  1966 of  the  Rajasthan High Court in D. B. Civil  Regular  First Appeal No. 86 of 1958. R.   K. Garg, S. C. Agarwal, D. P. Singh, V. J. Francis and S.   Chakravarty, for the appellants D.   V.  Patel,  Janendra Lal, and B. R. Agarwala,  for  the respondents. The judgment of the Court was delivered by Bhargava, J. This appeal arises out of a suit for  Partition of properties in the family of one Lalaji Ramchandra who Was the ,common ancestor of the parties to the suit.  He had two sons,  Govindraoji  ’and Motilal  alias  Krishnaraoji.   The plaintiffs/  appellants  and  the  non  contesting  proforma respondents  are  the  descendants  of  Motilal,  while  the contesting  respondents are the descendants of  Govindraoji, the  principal one being Chandrakant Rao who  was  defendant No.  1 in the suit.  The appellants sought Partition of  all the  family properties, including eight villages  known  ,as



"the  sarola  Jagir" which were situated  in  the  erstwhile State  of’Kota.  The trial Court dismissed the suit  in  its entirety, holding 83 9 that none of the properties in suit was ancestral  property. On  appeal  by  the present appellants, the  High  Court  of Rajasthan  upheld the dismissal of the suit insofar  as  the appellants had claimed a share in the eight villages forming the  Sarola  Jagir, while the suit in respect of  the  other properties  was decreed and a preliminary decree  passed  in respect of those properties.  The appellants have come up to this  Court in this appeal, by certificate granted  ,by  the High Court, against the order of the High Court refusing  to grant partition of the eight villages of the Sarola Jagir. In  order to appreciate the point raised in this appeal  the history of this Jagir in this family may be recited briefly. Lalaji  Ramchandra  and  his  eldest  son  Govindraoji  were awarded  this Jagir by means of a Parwana dated  8th  April, 1838  issued  by  His Highness Maharao  Ramsingh,  Ruler  of Kotah.   It  appears that the Maharao had  contracted  debts with the family of Lalaji Ramchandra even in the time of his -ancestors  and,  at the relevant time, the amount  of  debt exceeded  Rs.  9  lakhs.  This debt was  guaranteed  by  the British Government.  In lieu of this debt, this Jagir, which was already being enjoyed by Lalaji Ramchandra with  certain limitations,   was  given  jointly  to  him  and   his   son Govindraoji,   stating  that  it  was  being  conferred   in perpetuity  and was always to remain from sons to  grandsons and  was to be free from all taxes which were being  exacted up to that time, such as Barar and Sewai.  At the same time, Govind  Rao executed a deed of release by which he  accepted the  adjustment of the -amount due from the Maharao  against this  grant of jagir.  These documents thus show  that  this Jagir  was originally granted by Maharao Ramsingh, Ruler  of Kotah,  jointly in the names of Lalaji Ram Chandra  and  his son, Govindraoji in lieu of the debt which the Maharao  owed to  them.   Subsequently,  this  property  was  treated   as property  of the joint family of Lalaji  Ramchandra  Motilal the  second  son of Lalaji Ramchandra, was born  after  this grant  and  his  name was also  mutated  against  the  Jagir villages.   On  the death of Govindraoji, the  name  of  his adopted  son, Ganpat, Raoji, was brought in, while  Motilal, the  uncle,  managed the property on behalf of  the  family. Motilal  executed  a  will in  respect  of  his  properties, including these villages, specifically stating that half  of this  property  belonged to Ganpatraoji,  while  half  would belong  to  his adopted son, Purshottam  Raoji.   After  the death  of  Motilal, Ganpatraoji became the  manager  of  the property  and  Purshottam  Raoji’s  name  was  also  entered against  this property.  On the death of Ganpat  Raoji,  the name  of  his eldest son Chandrakant Rao was  mutated  while Purshottam Raoji in the capacity of the eldest member of the family,  started managing the property.  The  property  thus remained  in  the  family, being  treated  as  joint  family property  and, even during the years between 1852  and  1868 when efforts were made by the Maharao of Kotah to dispossess this 8 40 family, the British Government had intervened to ensure that the  property remained with this family, insisting that  the Maharao could only resume the Jagir on repayment of the loan in  respect of which discharge had been obtained  when  this Jagir was conferred.  The property was thus continued to  be treated  as  joint  family  property  until  the  death   of Purshottam Raoji when a question arose as to the mutation of



names  of  his descendants in his  place.   Chandrakant  Rao desired that his name alone should be shown as the holder of this  Jagir  and, on 22nd October, 1937,  gave  a  statement before the Revenue Commissioner claiming that the eldest son in the eldest branch had the right over the jagir  according to  the  custom and usage in  Rajputana  and,  consequently, mutation  in  the records should be in his  name  alone.   A report  was sent by the Revenue Commissioner and the  matter was  dealt with by the Maharao of Kotah himself  in  Mehakma Khas.  The order of the Maharao on that report was passed on 22nd  January,  1938.  By this Order, a direction  was  made that this Jagir, like all other Jagirs, should be given  the status of an impartible estate and it should be given proper shape by being liable to render ’Chakri, and ’Subhchintki to the  Ruler.  It was further ordered that the Jagir  will  be governed  by the rule of primogeniture, so that  Chandrakant Rao  alone would be held to be the Jagirdar.  As  a  result, all  these  eight villages of the Sarola Jagir  came  to  be shown as the property of Chandrakant Rao alone. The  claim of the plaintiff in this suit was that the  Jagir having  been joint Hindu family property, the rights of  the plaintiffs, who are the successors-in-interest of Purshottam Raoji, cannot be defeated by the order of the Maharao  dated 22nd  January,  1938  ,and,  consequently,  the   appellants together   with  the  proforma  respondents  who  are   also descendants  of Purshottam Raoji are entitled to 1/2  share, whereas  the  other  1/2 share only can be  claimed  by  the contesting  defendants, including Chandrakant Rao,  who  are descendants  of Ganpatraoji.  Both the trial Court  and  the High Court have held that, after the order of the Maharao of Kota  dated  22nd  January, 1938, this  Jagir  came  to  be, governed by the rule of primogeniture, with the result  that Chandrakant Rao alone was the owner of this property,  while all other members of the family could only claim maintenance out  of  this  property.  Consequently,  the  claim  of  the appellants  for a share in these villages on  partition  was negatived.  It is the correctness of this decision that  has been challenged, before us. Since,  in  this case, no effort was made on behalf  of  the respondents to contest the correctness of the finding  given by the High Court that all these villages were joint  family property and were treated as such right up to the year  1937 when  Purshottam  Raoji  died, we need not  enter  into  the details of the evidence on the basis 841 of which this finding has been recorded.  The question  that falls  for  decision is whether the Maharao of Kota  by  his order  dated  22nd January, 1938, could validly  change  the nature of the property. make it impartible and  governed--by the  rule  of primogeniture when the  property  was  already joint  family  property.   In deciding  this  question,  the crucial point is that the Maharao of Kota was an independent and sovereign Ruler whose orders in his State were law.   He had  absolute power to make-any-orders, and the Order  dated 22nd  January, 1938 has, therefore to be given the force  of law  which, when it was passed, could not be  challenged  as invalid.   Counsel for the appellants, however,  urged  that all  orders passed by an independent and sovereign Ruler  do not  have the force of law.  It is only those  orders  which purport  to  lay down a law for the State  which  cannot  be -challenged  and which would remain in force even after  the merger of the Kota State in India and after, the enforcement of the Constitution under Art. 372 of the Constitution.  His submission  was  that,  when passing the  Order  dated  22nd January,  1938,  the  Ruler was  only  exercising  executive



powers of directing mutation of names and was not exercising any  legislative powers.  The nature of the Order passed  by him, however, shows that this submission cannot be accepted. No  doubt, that Order was made on a report which was put  up before  the Maharaoji for deciding who should be held to  be the  owner  of the Jagir when Purshottam  Raoji  died.   The Order  shows that the Maharao took notice of the  fact  that the Sanad had been granted in the name of Lalaji  Ramchandra and his eldest son Govind Rao on executing a deed of release in  respect of the debt, but it added that, when the  unpaid debt  was  changed  in the form of a Jagir  and  no  special condition  was laid down regarding it and the name  of  only the  eldest  son was written in the ’Sanad’  though  another brother was present there, it has to be held that the  Jagir was  intended  to be given on the same rules  on  which  the other  Jagirs were granted The Order then proceeds  to  take notice  of  the fact that, though the mutation  should  have been  in the name of Chandrakant after the death  of  Ganpat Rao,  a  practice had developed of entering  more  than  one person  as the holders of this Jagir.  It appears  that,  in order  to  give effect to the original intention  that  this Jagir  should  be governed by the same rules  as  all  other Jagirs,  the Maharao proceeded to lay down that this’  Jagir should  also be impartible and should be held by the  eldest member  of  the  family in the  eldest  branch.   The  Ruler considered  it desirable to make this Order, because it  was envisaged that, it the entire Jagir, was distributed amongst all  the  members  of  the family, then  even  the  name  of Thikana’ would disappear.  It was considered desirable  that this Jagir should be governed according to the custom of the States  in  Rajputana including Kota State under  which  the eldest  son of the senior branch alone was entitled to  hold the property.  Thereafter, the Maharao proceeded to lay down that this Jagir should be L 10 Sup C I (NP)70-9 84 2 equated  with  other Jagirs by making a direction  that  the holders of this Jagir should also render ’Chakri’ and should continue  to do ’Subhchintki’.  Having made this  direction, the  Ruler  then held that. since this ’Thikana’  was  being given proper shape, its custom and status must be similar to that of all other Jagirdars in the State.  These  directions given by the Ruler clearly show that, though the proceedings came  to him on the basis of a report for directions  as  to the  mutation  entry to be made on the death  of  Purshottam Rao,  he proceeded to lay down the principles Which were  to govern  this Jagir thereafter.  The Ruler decided that  this Jagir should be placed on equality with all other Jagirs  in the  State  and should be governed by the  same  laws.   The Order thus made was clearly an exercise of legislative power by  which the Ruler was competent to lay down  that,  though this  Jagir had in the past been joint family  property,  it was  to  be thereafter impartible property governed  by  the rule  of  primogeniture and Chandra Kant Rao as  the  eldest member  of  the senior branch was to be the  sole  Jagirdar. This was, therefore, a case where the Maharao exercised  his powers  of  laying  down the law with respect  to  this  one single  Jagir.  It cannot be said that the Order  passed  by him  was  a  mere  executive order and  did  not  result  in exercise of his powers of making the law. In this connection, counsel for the appellants relied on the principle   laid  down by this Court  in  Rajkumar  Narsingh Pratap  Singh  Deo  v. State of  Orissa  and  Another(1)  to canvass  his submission that the Maharao, in this case,  was not  exercising legislative powers when he passed the  Order



dated  22nd  January, 1938.  In that case, the effect  of  a Sanad  granted  by the Ruler of Dhenkanal State  had  to  be considered  and ’the question arose whether the Sanad  could be treated as existing law within the meaning of Art. 372 of the  Constitution.   The  Court,  after  taking  notice   of previous  decisions, drew a distinction between orders  made by  a Ruler having the force of law and orders which may  be of executive nature, and held               "The  true legal position is that  whenever  a               dispute  arises as to whether an order  passed               by   an   absolute   monarch   represents   ’a               legislative   act  and  continues  to   remain               operative by virtue of cl. 4(b) of the  Order,               ’all  relevant  factors  must  be   considered               before the question is answered; the nature of               the  order,  the  scope  and  effect  of   its               provisions,  its general setting and  context,               the   method   adopted   by   the   Ruler   in               promulgating legislative as distinguished from               executive  orders,  these  and  other   allied               matters  will have to be examined  before  the               character   of   the   order   is   judicially               determined." (1)  [1964] 7 S.C.R. 112.                             843 On  an application of these principles in that case, it  was held  that the Sanad in question could not be held to  be  a legislative  act.  In our opinion, even if these  principles are  applied to the case,before us, it has to be  held  that the Order of the Maharao dated 22nd January, 1938  -amounted to  exercise  of  legislative power.   As  we  have  already indicated  earlier,  the  very mature of  the  Order,  which changes  the law applicable to the Jagir, indicates that  it was  a legislative act and not a mere executive order.   The Maharao  did  not  purport to lay down that  the  Jagir  was already  governed by the rule of primogeniture; what he  did was  to  apply the rule of primogeniture to this  Jagir  for future.  Such an order could only be made in exercise of his prerogative of laying down the law for the State.  The  mere fact that it was laid down for one single Jagir and was  not a  general  law  applicable  to  others  in  the  State   is immaterial,  because it does not appear that there were  any other  similar Jagirs which also required alteration of  the law applicable to them.  There is also nothing to show  that during  the period of his rule, the Maharao had adopted  any special  procedure for promulgating the laws in  his  State. The manner in which the Order was passed indicates that,  in this State, the Maharao considered himself competent to  lay down the law at any time he liked. Reliance  was also placed on the decision of this  Court  in State of Gujarat v. Vora Fiddali Badruddin  Mithibarwala(1), but  that case, in our opinion, has no application  at  all. In  that  case,,  the question arose  whether  an  agreement entered  into by a Ruler had the force of law.  In the  case before  us, there is no such question of any agreement.   In dealing  with  that  question,  the  Court  relied  on   the following extract from a decision of the Court in an earlier case of The Bengal Nagpur Cotton Mills Ltd. v. The Board  of Revenue, Madhya Pradesh and Others(2) :-               "It  is plain that an’agreement of  the  Ruler               expressed in the shape of a contract cannot be               regarded  as  a law.  A law  must  follow  the               customary  forms  of law-making  and  must  be               expressed as a binding rule of conduct.  There               is  generally -an established method  for  the



             enactment of laws, and the laws, when enacted,               have  also a distinct form.  It is  not  every               indication, of the will of the Ruler,  however               expressed,   which  amounts  to  a  law.:   An               indication of the will meant to bind as a rule               of,,., conduct and enacted with some formality               either  traditional or specially  devised  for               the  occasion,  results. in a law but  not  an               agreement to which there are two parties,  one               of which is the Ruler." Emphasis was laid by counsel on the views expressed in  this passage that a law, must follow the customary forms of  law- making.and’ (1) [1964] 6 S.C.R. 461. (2) A.T.R. 1964 S.C..8.88 844 must  be  expressed as a binding rule of  conduct.   In  the present case, there is nothing to show that, in the State of Kota, there was any other customary form of law-making.  The Order of 22nd January, 1938 clearly expresses the  direction of  the  Ruler that the Jagir must be governed by  the  same customary  law as other Jagirs as a binding direction  which was  to  govern the future conduct of the  holders  of  this Jagir.   The principle relied on, therefore, does  not  show that  this Order of 22nd January, 1938 did not amount  to  a legislative act on the part of the Maharao. Reference  was  also made to the decision of this  Court  in Major  Ranjit  Singh  Rao Phalke v. Smt.   Raja  Bai  Sahiba (dead)  by her legal representatives & Vice  Versa(1)  where the Court said :-               "It is now settled law that every order of the               Maharaja   cannot   be   regarded   as    law,               particularly those which were in violation  of               his own laws."               and again repeated: -               "The position today is that every order of the               Ruler cannot be regarded as law but only  such               orders as contain some general rule of conduct               and  which  follow a recognised  procedure  of               law-making." In  that case, the particular order of the Ruler  which  was questioned  had  been made in contravention of  one  of  the existing  laws  of the State and it was held  that  such  an order  could not be treated as law.  In the case before  us, the  position is quite different.  There was no law  of  the Kota  State which could be held to be contrary to the  Order dated 22nd January, 1938.  In fact, the general law  govern- ing  all  Jagirs in the State was the  customary  law  under which  the  Jagirs were owned by the eldest member  of.  the senior branch, and all that this Order did was to apply  the same  law  to this Jagir also.  It is true that  no  special procedure  of  law-making was adopted by  the  Maharao  when making  this Order; but that circumstance cannot change  the nature  of  the  Order specially when there  is  nothing  to indicate  that  there was any recognised procedure  of  law- making   in  the  Kota  State  at  that  time.    In   these circumstances, we hold that the High Court was quite correct in  arriving at the decision that these eight villages’,  at the  time when the suit for partition was  instituted,  were impartible property governed by the law of primogeniture and Chandrakant  Rao respondent alone had to be treated  as  the owner of these villages. It, however, appears that, during the pendency of the  suit, Jagirs were resumed in Rajasthan including this Jagir  which stood  in the name of Chandrakant Rao and cash  compensation



was paid in respect of it.  It was urged by counsel for  the appellants that, (1)  Civil Appeals Nos. 982 and 983 of 1964 decided on  18th July, 1967. 845 even if the Jagir was impartible and governed by the rule of primogeniture,  the  right,  which  earlier  Vested  in  the members  of  the family when it was joint  family  property, would be exercisable when the Jagir was converted into  cash and   lost  its  status  of  impartible  estate.   It   was, therefore, claimed that, after the Jagirs had been converted into cash under the Rajasthan Land Reforms and Resumption of Jagirs  Act No. VI of 1952, the appellants should have  been granted a share in the compensation received by  Chandrakant Rao on the basis that this property was earlier joint  Hindu family property.  In the altemative, it was also urged that, even  if  this  claim of the  plaintiffs/appellants  is  not accepted, they would at least be entitled to claim a part of the  compensation  in lieu of their  right  of  maintenance. These two aspects do not seem to have been considered by the trial Court and even the High Court in one sentence disposed of  this  matter by saying that, since the  appellants  were only entitled to maintenance, they could not claim any share in the compensation money paid under the Rajasthan Act VI of 1952.   In dealing with this aspect, we are  handicapped  by the  circumstance that the suit was instituted  before  this Act  VI of 1952 was. passed, so that there was  no  specific pleading  in this behalf by the plaintiffs appellants.   The trial Court, therefore, ignored this aspect altogether,  and even the High Court did not take into account the effect  of Act VI of 1952 in the, two aspects which have been mentioned by  us above.  Since, however, this is an appeal  against  a preliminary  decree  in the suits and the suit is  still  to continue  in  the trial Court, we think  it  appropriate  to direct that these questions should be properly raised in the trial Court by amendment of the pleadings in the plaint,  if necessary,  and  should be considered and  decided  by  that Court.   It will be for that court to give a fresh  decision whether, the appellants are entitled to claim a share in the compensation money received in lieu of these eight  villages under Rajasthan Act VI of 1952. The result is that this appeal is dismissed, subject to  the modification  that the case will go back to the trial  Court for deciding the question whether the  plaintiffs/appellants can  claim  a  share in the compensation money  or  not,  as indicated  above.   Costs  of this appeal  shall  abide  the decision  on  this claim of the plaintiffs appellants  to  a share in the compensation money. R.K.P.s.                                              Appeal dismissed. 846