09 March 1964
Supreme Court


Case number: Appeal (civil) 133 of 1963






DATE OF JUDGMENT: 09/03/1964


CITATION:  1964 AIR 1793            1964 SCR  (7) 112  CITATOR INFO :  R          1964 SC1903  (17)  R          1966 SC 704  (5,10)  R          1971 SC 846  (9)  APL        1971 SC 910  (5)  R          1977 SC 629  (14)  R          1987 SC  82  (7)

ACT: Khorposh   Allowance-Sanad  granted  by  Ruler   of   State- Discontinuance  of  cash allowance by Government  of  Orissa after  merger-Validity-Sanad,  if  law  or  executive   act- Constitution  of India, Arts. 366(10), 372-Order 31 of  1948 issued by Government of Orissa, cl. 4(b).

HEADNOTE: The  Ruler  of  Dhenkanal State granted a sanad  by  way  of Khorposh  allowance  to his younger brother,  the  appellant giving certain lands and a maintenance allowance, under  the customary law of the State.  After the merger of that  State to  the Dominion of India which became effective on  January 1,   1948,   the  Government  of  Orissa   took   over   the administration  of  the  State  and  discontinued  the  cash allowance.   The  appellant challenged the validity  of  the order   of  discontinuance  by  a  suit  in  the  Court   of Subordinate  Judge.  The suit was dismissed.  On  appeal  to this Court it was urged on behalf of the appellant that  the sanad  issued  by  an  absolute monarch  was  law,  and  was continued  by Arts. 366(10), 372(1) of the Constitution  and cl.  4(b)  of  the Order 31 of 1948  issued  by  the  Orissa Government  in exercise of the power delegated to it by  the Central  Government  under  s. 3(2)  of  the  Extra  Foreign Jurisdiction Act, 1947. Held:     (i) It was not correct to say that in dealing with a  grant  made  by an absolute monarch  any  enquiry  as  to whether  the  grant  was  the  result  of  an  executive  or legislative  act was altogether irrelevant.  This Court  did not  lay down any inflexible rule that  the  well-recognised jurisprudential   distinction   between   legislative    and executive acts was wholly irrelevant or inapplicable to such



a case. Ameer-un Nissa Begum v. Mahboob Begum, A.I.R. 1955 S.C. 352, Director  of  Endowments, Government of Hyderabad  v.  Akram Ali,  A.T.R.  1956  S.C. 60, Madhaorao Phalke  v.  State  of Madhya  Bharat, [1961] 1 S.C.R. 957, Promode Chandra Deb  v. State  of Orissa, [1962] Supp. 1 S.C.R. 405,  Tilkayat  Shri Govindlalji  Maharaj v. State of Rajasthan, [1964] 1  S.C.R. 561,  Maharaja  Shree Umaid Mills Ltd. v.  Union  of  India, A.I.R.  1963 S.C. 953 and State of Gujarat v.  Vora  Fiddali Badruddin Nithibarwala, [1964] 6 S.C.R. 461, considered. In  such an enquiry it was necessary to consider such  rele- vant  factors  as  the nature of the order,  its  scope  and effect,  general setting and context and the method  adopted by the Ruler in promulgating it. So judged, the Sanad in question had no legislative  element in any of its provisions and was a gift pure and simple made in  pursuance of the custom of the family and customary  law of the State. The  gift therefore, was an executive act of the  Ruler  and did not amount to law although the Ruler was discharging  by it his obligation under personal or customary law. 113 The  gift  being  an executive act of  the  Ruler  could  be modified  or cancelled by an executive act of the  successor to  the  Ruler.  The discontinuance of  the  cash  allowance could not affect the continuance of the customary law  under cl.  4(b)  of  the  Order  of  1948  and  Art.  372  of  the Constitution.   Nor  could  the  plea  of  payment  of  such allowance    even   after   the   merger   invalidate    the discontinuance.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  133  1963. Appeal from the judgment and decree dated November 17, 1960, of the Orissa High Court in First Appeal No. 45 of 1955. M.   C. Setalvad, R. K. Garg, M. K. Ramamurthi, D. P.  Singh and S. C. Agarwala, for the appellant. S.   V. Gupte, Additional Solicitor-General of India,  Gana- pathy Iyer and R. H. Dhebar, for the respondents. March 9, 1964.  The judgment of the Court was delivered by GAJENDRAGADKAR,  C.J.-The  principal  point  of  law,  which arises in this appeal is whether the Sanad issued in  favour of the appellant, Rajkumar Narsingh Pratap Singh Deo, by his elder  brother,  the Ruler of Dhenkanal State, on  March  1, 1931, is existing law within the meaning of Art. 372 of  the Constitution  read  with cl. 4(b) of Order No.  31  of  1948 issued by the respondent State of Orissa on January 1, 1948. This  question arises in this way.  The State  of  Dhenkanal which was an independent State prior to 1947 merged with the Province  of  Orissa  in pursuance  of  a  Merger  Agreement entered into between the Ruler of Dhenkanal and the Dominion of  India  on December 15, 1947.  This Agreement  came  into force  as  from  January 1, 1948.  In  consequence  of  this Agreement   the  entire  administration  of  the  State   of Dhenkanal was taken over by the State of Orissa pursuant  to the  authority  conferred on it by  the  Central  Government under  s. 3(2) of the Extra Foreign Jurisdiction  Act,  1947 (No. 47 -of 1947).  After the Sanad in question -was  issued in  favour  of  the  appellant, be  was  getting  a  monthly allowance of Rs. 5001- from the Dhenkanal District  Treasury on  the  authority of a permanent Pay Order which  had  been issued in his favour by the Ruler of Dhenkanal on the  basis of  the  said Sanad.  This payment was discontinued  by  the



respondent   from   1st  of  May,  1949  and   the   several representations  made  by  the  appellant  to  the   various authorities  of  the  respondent to  reconsider  the  matter failed.  That is why lie filed the present suit on September 26,  1951 in the Court of the subordinate Judge,  Dhenkanal, alleging  that  the  act of  discontinuing  the  appellant’s pension  was illegal, and asking for appropriate reliefs  in that  behalf.  It is from this suit that the present  appeal arises. 114 The appellant’s case is that in the family of the appellant, it  has been recognised as a customary right of  the  junior members  of  the  family  to  receive  adequate  maintenance consistently  with  the status of the family.   Indeed,  the appellant’s allegation is that this custom was recognised in Dhenkanal and   enforced as customary law in the State.  The grants  made  to the members of the Royal Family  for  their maintenance  consisted of lands and cash allowances.   These latter  were described as Kharposh allowances and they  were charged  and paid out of the revenue of the former State  of Dhenkanal.   It  was in accordance with this  customary  law that  the  Sanad  in question was issued  by  the  Ruler  of Dhenkanal  in  favour  of the  appellant.   By  this  Sanad, certain  lands  were  granted to the appellant  and  a  cash allowance of Rs. 5001- per month was directed to be paid  to him for life.  The appellant’s grievance is that this ,-rant of  Rs.  5001-  allowance  has  been  discontinued  by   the respondent  and  that,  according to the  appellant,  is  an illegal  and unconstitutional act.  In support of  his  plea that the respondent was bound to continue the payment of the cash  allowance,  the appellant urged in his suit  that  the grant was a law within the meaning of Art. 372 and as  such, it  had  to be continued.  He also alleged  that  after  the merger  of Dhenkanal with Orissa, his right to  receive  the grant  was recognised by the respondent and acted upon;  and that is another reason why he claimed an appropriate  relief in,  the  form  of an  injunction  against  the  respondent. Several  other  pleas were also taken by  the  appellant  in support  of his claim, but it is not necessary to  refer  to them for the purpose of the present appeal. The  respondent denied the appellant’s claim and urged  that having  regard  to  the nature of the  grant  on  which  the appellant  has  rested  his case, it was  competent  to  the respondent to discontinue the grant.  The grant in  question is  not law under Art. 372 and just as it could be  made  by the   Ruler  in  1931  by  an  executive  act,  it  can   be discontinued  by the respondent by a similar  executive  act since the respondent is the successor of the Ruler.  It  was also urged by the respondent that the appellant’s allegation that  the respondent had recognised and agreed to  act  upon the grant of cash allowance, was not well-founded.  Both the learned trial Judge who tried the appellant’s case, and  the High  Court  of Orissa before which the appellant  took  his case in appeal, have, in the main, rejected the  appellant’s contention,  with the result that the appellant’s  suit  has been dismissed.  The appellant then applied for and obtained a  certificate  from  the  High Court and  it  is  with  the certificate  thus  granted to him that he has come  to  this Court in appeal. The  first  and the main point which Mr.  Setalvad  for  the appellant has urged before us is that the Sanad on which the appellant’s claim is founded, is law.  At the time when the 115 Senad  was granted, the Ruler of Dhenkanal was  an  absolute monarch  and   in  him. vested  full  sovereignty;  as  such



absolute  sovereign,  he  was  endowed  with.   legislative, judicial  and  executive powers and authority  and  whatever order  tie  passed  amounted  to law.  In  the  case  of  an absolute  monarch whose’ word is literally law, it would  be idle,  says  Mr. Setalvad, to  distinguish  between  binding orders  issued  by  him which  are  legislative  from  other binding  orders which are executive or administrative.   All binding  orders issued by such a Ruler are, on the  ultimate analysis,  law,  and the Sanad in question falls  under  the category of such law. In  support of this argument, Mr. Setalvad has referred  Lis to the definition of the words "existing law" prescribed  by Art.  366(10)  of the Constitution.  Art.  366(10)  provides that  "existing law" means any law, ordinance,  order,  bye- law,   rule  or  regulation  passed  or  made   before   the commencement  of  this  Constitution  by  any   Legislature, authority  or  person  having power to  make  such  a,  law, ordinance,  order,  bye-law,  rule  or  regulation.   Basing himself on this definition, Mr. Setalvad also relies on  the provisions of Art. 372(1) which provides for the continuance in  force of existing laws; this continuance is, of  course, subject  to the other provisions of the Constitution and  it applies  to such laws as were in force in the  territory  of India   immediately   before   the   commencement   of   the Constitution, until they are altered, repealed or amended by a, competent Legislature or other competent authority. These  provisions are invoked by Mr. Setalvad  primarily  by virtue  of  cl.  4(b)  of Order 31 of  1948  issued  by  the respon-dent  on the 1st of January, 1948.  It is  well-known that  by s.3(1) of the Extra Foreign Jurisdiction  Act,  the Central  Government was given very wide powers  to  exercise extra  provincial jurisdiction in such manner as it  thought fit.  Section 3(2) provided that the Central Government  may delegate  any such jurisdiction as aforesaid to any  officer or authority in such manner and to such extent as it  thinks fit.   The  width  of the powers conferred  on  the  Central Government can be properly appreciated if the provisions  of s.  4 are taken into account.  Under s. 4(1),  the,  Central Government  was authorised by notification in  the  Official Gazette to make such orders as may seem to it expedient  for the  effective exercise of the extraforeign jurisdiction  of the Central Government.  Section 4(2) indicates by cls.  (a) to  (d) the categories of orders which can be passed by  the Central  Government  in exercise of its  jurisdiction.   The sweep  of  these  powers is very wide and  they  had  to  be exercised  in the interests of the proper governance of  the areas  to  which the said Act applied.  Under s.  3(2),  the Central Government bad delegated its powers to the  Province of Orissa in respect of States which had merged with it, and it  was  in exercise of its powers as  such  delegated  that Order 31 of 1948 116 was  issued by the Province of Orissa (now the  respondent). Cl. 4 of the Order dealt with the question of the laws to be applied  to  the merging areas.  Cl. 4(a)  referred  to  the enactments  specified  in the first column of  the  Schedule annexed  to the Order and made them applicable as  indicated in  it.   Cl. 4(b) provided that as respects  those  matters which  are  not  covered by the enactments  applied  to  the Orissa  States under sub-para (a), all laws in force in  any of  the  Orissa  States prior to the  commencement  of  this Order,  whether substantive or procedural and whether  based on  custom  and usage, or statutes, shall,  subject  to  the provisions of this Order, continue to remain in force  until altered  or amended by an Order under the Extra,  Provincial



Jurisdiction  Act,  1947.   There  is  a  proviso  to   this sub--clause to which it is unnecessary to refer.  The  argu- ment  is  that  by virtue of cl. 4(b)  of  this  Order,  the customary law prevailing in the State of Dhenkanal prior  to its  merger continued to operate as law in the territory  of Dhenkanal and that is how it is operative even now,  because it has not been repealed or amended.  Since the Sanad issued in favour of the appellant is, according to the  appellant’s case, law, there would be no authority in the respondent  to cancel the payment of cash allowance to the appellant merely by an executive order.  If the respondent wants to terminate the payment of the cash allowance to the appellant, the only way which the respondent can legitimately adopt is to make a law in that behalf, or issue an order under cl. 4(b) of  the Order.  That, broadly stated, is the argument which has been pressed before us by Mr. Setalvad. We  do  not  think that the basic  assumption  made  by  Mr. Setalvad in presenting this argument is sound.  It would  be noticed  that the basic assumption on which the argument  is based is that in the case of an absolute monarch, there  can be no distinction between executive and legislative  orders. In  other  words, it is assumed that all  orders  which  are passed  by an absolute monarch, are binding, and it is  idle to  enquire  whether they are executive  or  legislative  in character, because no such distinction can be made in regard to  orders issued by an absolute monarch.  It is  true  that the  legislative,  executive  and judicial  powers  are  all vested in an absolute monarch; he is the source or  fountain of  all  these  powers and any order made by  him  would  be binding   within  the  territory  under  his  rule   without examining  the  question as to whether  it  is  legislative, executive  or judicial; but though all the three powers  are vested in the same individual, that does not obliterate  the difference   in   the  character  of  those   powers.    The jurisprudential distinction between the legislative and  the executive   powers  still  remains,  though  for   practical purposes, an examination about the character of these orders may serve no useful purpose.  It is not as if where absolute monarchs have sway in 117 their kingdoms, the basic principles of jurisprudence  which distinguish  between  the  three categories  of  powers  are inapplicable.  A careful examination of the orders passed by an  absolute monarch would disclose to a jurist whether  the power exercised in a given case by issuing a given order  is judicial,  legislative,  or executive,  and  the  conclusion reached  on jurisprudential grounds about the nature of  the order  and  the source of power on which it is  based  would nevertheless  be  true and correct.  That,  indeed,  is  the approach  which must be adopted in considering the  question as  to whether the grant in the present case is  law  within the  meaning of Art. 372 as well as cl. 4(b) of Order 31  of 1948; and so, prima facie, it does not seem sound to suggest that  in  the case of an absolute monarch,  that  branch  of jurisprudence which makes a distinction between three  kinds of power is entirely inapplicable. In  dealing  with this aspect of the matter,  it  is  hardly necessary  to  examine and decide what distinguishes  a  law from   an  executive  order.   A  theoretical  or   academic discussion  of this problem would not be necessary  for  our present purpose, because all that we are considering at this stage is whether or not it would be possible to consider  by reference to the character of the order, its provisions, its context and its general setting whether it is a  legislative order or an executive order.  Though theorists may not  find



it  easy  to define a law as  distinguished  from  executive orders,  the  main features and characteristics of  law  are well recognised.  Stated broadly, a law generally is a  body of  rules  which have been laid down for  determining  legal rights and legal obligations which are recognised by courts. In  that  sense, a law can be distinguished  from  a  grant, because in the case of a grant, the grantor and the  grantee both agree about the making and the acceptance of the grant; not  so in the case of law.  Law in the case of an  absolute monarch  is  his  command  which has to  be  obeyed  by  the citizens  whether they agree with it or not.  Therefore,  we are  inclined  to  hold that Mr. Setalvad is  not  right  in making the unqualified contention that while we are  dealing with  a grant made by absolute monarch, it is irrelevant  to enquire  whether  the grant is the result  of  an  executive action,   or  a  legislative  action.   On  Mr.   Setalvad’s contention,  every  act of the absolute  monarch  and  every order passed by him would become law though the act or order may  have relation exclusively to his personal  matters  and may  have no impact on the public at large.  That is why  it is  unsound to suggest that the jurisprudential  distinction between orders which are judicial, executive or  legislative or  in  relation to purely individual and  personal  matters should  be  treated as irrelevant in dealing  with  Acts  or orders passed even by an absolute monarch. Realising  the  difficulty  in his  way,  Mr.  Setalvad  has strongly  relied on certain decisions of this  Court  which, according  to  him,  support the broad point  which  he  has raised before 118 us. It is, therefore, necessary to examine these  decisions. The  first  case  on which Mr. Setalvad relies  is  that  of Ameer-unNissa Begum v. Mahboob Begum(1).  In that case, this Court  was  called  upon to consider the  validity  ’of  the Firman  issued  by  the  Nizam  of  Hyderabad  on  the  19th February,  1939,  by  which a Special  Commission  had  been constituted to investigate and submit a report to him in the case of succession to a deceased Nawab which was transferred to  the  commission  from the file  of  Darul  Quaza  Court. Dealing  with  the  question as to  whether  the  Firman  in question  was  passed  by  the  Nizam  in  exercise  of  his legislative  power  or  judicial  power,  Mukherjea,   C.J., speaking  for  the Court, observed that the  Nizam  was  the supreme  legislature, the supreme judiciary and the  supreme head  of  the  executive and there  were  no  constitutional limitations  upon  his  authority to act in  any  ’of  these capacities.    He  also  observed  that  the  Firmans   were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; therefore so  long as  a  particular firman held the field,  that  alone  would govern  or  regulate the rights of  the  parties  concerned, though it could be annulled or modified by a later Firman at any  time that the Nizam willed.  It appears, however,  that the  learned  counsel appearing in that case did  not  argue this  point, and so, the question as to whether it would  be possible  or useful to draw a line of demarcation between  a Firman which is legislative and that which is executive, was neither  debated before the Court, nor has it been  examined and decided as a general proposition of law. In  The Director of Endowments, Government of  Hyderabad  v. Akram  Ali(2), similar observations were repeated  by  Bose, J., who spoke for the Court on that occasion.  Dealing  with the  Firman issued by the Nizam on the 30th December,  1920, which directed the Department to supervise the Dargah  until the rights of the parties were enquired into and decided  by



the  Civil  Court, it was ’observed that the  Nizam  was  an absolute  sovereign  regarding all domestic matters  at  the time when the Firman was issued and his word was law.   That is bow the validity of the Firman was not questioned and  it was  held  that  its effect was to  deprive  the  respondent before  the Court and all other claimants of all  rights  to possession pending enquiry of the case.  In this case again, as  in the case of Ameer-un-Nissa Begum(1), the  point  does not  appear  to have been argued and the  observations  are, therefore,  not  intender  to lay down a  broad  or  general proposition as contended by Mr. Setalvad. That  takes  us  to the decision in the  case  of  Madhaorao Phalke v. The State of Madhya Bharat(3).  On this  occasion, This Court was called upon to consider the question as to (1)  A.I.R. 1955 S.C. 352. (2)  A.I.R. 1956 S.C. 60 (3)  [1961] 1 S.C.R. 957. 119 whether  the  relevant Kalambandis issued by  the  Ruler  of Gwalior  constituted law, ’or amounted merely  to  executive orders.  In the course of the judgment, the passages in  the two  cases  to which we have just referred were,  no  doubt, quoted;  but the ultimate decision was based not so much  on any  general ground as suggested by Mr. Setalvad, as on  the examination  of the character of the Kalambandis  themselves and other’ relevant factors.  If Mr. Setalvad’s argument  be well-founded and the Kalambandis had to be treated as law on the  broad  ,-round  that  they were  orders  issued  by  an absolute  monarch,  it would have been hardly  necessary  to consider the scope and effect of the Kalambandis, the manner in  which  they were passed, and the object  and  effect  of their scheme.  In fact, these matters were considered in the judgment  and it was ultimately held that "having regard  to the  contents  of the two orders and the  character  of  the provisions  made  by them in such a detailed manner,  it  is difficult to distinguish them from statutes or laws; in  any event,  they must be treated as rules or regulations  having the  force of law".  That was the finding made by  the  High Court  and  the  said finding was affirmed  by  this  Court. Therefore,   though  this  judgment  repeated  the   general observations made by this Court on two earlier occasions, it would be noticed that the decision was based not so much  on the  said observations, as on a careful examination  of  the provisions contained in the Kalambandis themselves. In Promod Chandra Deb v. The State of Orissa(1), this  Court has held that the grant with which the Court was  concerned, read in the light of Order 31 of the Rules, Regulations  and Privileges  of  Khanjadars and Khorposhdars,  was  law.   In discussing the question, Sinha, C.J., has referred to  Order 31  of the Rules and Regulations and has observed that  like the Kalambandis in the case of Phalke(2), the said Rules has the  force  of  law and would be  existing  jaw  within  the meaning of Art. 372 of the Constitution.  This case does not carry the position any further except that the same  general observations are reproduced. In the case of Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan(3), while dealing with the question as to  whether the  Firman issued by the Udaipur Darbar in 1934 was law  or not,  this  Court examined the scheme of  the  said  Firman, considered  its provisions, their scope and effect and  came to the conclusion that it was law.  Having thus reached  the conclusion that the Firman, considered as a whole, was  law, the  general observations on which Mr. Setalvad relies  were reproduced.   But as in the case of Phalke (2), so  in  this case,  the  decision  does not appear to  be  based  on  any



general  or  a priori consideration, but it  is  based  more particularly on the examination of the scheme of the  Firman and its provisions. (1) [1962] Supp.  1 S.C.R. 405,410. (2) [1961] 1 S.C.R. 957 (3) [1964] 1 S. C. R. 561. 120 In  the case of Maharaja Shree Umaid Mills Ltd. v. Union  of India(1), a similar question arose for the decision of  this Court  in regard to an agreement made on the 17th of  April, 1941.   The point urged before the Court was that  the  said agreement  was law, and reliance was placed on  the  several general observations to which we have already referred.   S. K.  Das.   J.  who spoke for the  Court  examined  the  said observations  and  the context in which they were  made  and rejected  the plea that the said observations were  intended to  lay  down a general proposition that in the case  of  an absolute  monarch,  no distinction can be made  between  his legislative  and  his executive acts.  In  the  result,  the agreement in question was held to be no more than a contract which was an executive act and not a law within the  meaning of Art. 372. The  same view has been recently expressed by  Hidayatullah, Shah  and  Ayyangar,  JJ.  in  the  judgments   respectively delivered  by them in The State of Gujarat v.  Vora  Fiddali Badruddin Mithibarwala(2). Therefore, a close examination of the decisions on which Mr. Setalvad  relies  does not support his  argument  that  this Court has laid down a general proposition about the  irrele- vance or inapplicability of the well-recognised  distinction between  legislative  and executive acts in  regard  to  the orders  issued  by  absolute  monarchs  like  the  Raja   of Dhenkanal  in the present case.  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, and so,  we are satisfied that Mr. Setalvad is not right in placing  his argument  as high as to say that the Sanad issued in  favour of  the appellant by the Raja of Dhenkanal must be field  to be law without considering the nature of the -rant contained in it and other relevant circumstances and facts.  We  must, therefore. proceed to examine these relevant facts. Let  us  then  examine  the Sanad.   It  consists  of  three clauses.   The  first clause refers to the practice  in  the State  of  Dhenkanal under which the Rajas  made  grants  in hereditary rights to their relatives, and it adds that there exists  a patent necessity for making an adequate  provision for the grantee. (1) A.I.R. 1963 S.C. 953. (2)  [1964] 6 S.C.R. 461. 121 the  appellant, to enable him to maintain his dignity  as  a Rajkumar  of the State and to maintain himself, his  family, his  heirs  and descendants in a manner  befitting  his  and their position.  ’That is why out of love and affection  for him,  the  grantor made the khanja grant in the shape  of  a monthly  cash allowance of Rs. 500/- for his life  time  and also  an  assignment  of  land  measuring  6942-71-5   acres



specified in the Schedule attached to the Sanad.  The  grant of the said land has been made heritable and the grantee has been  authorised to enjoy it from generation to  generation. The  extent  of the grant is also  clarified  by  additional clauses which it is unnecessary to mention.  Clause 2 of the Sanad  imposes the condition of loyalty on the  grantee  and his  heirs;  and by cl. 3 the State undertook  to  bear  all costs  for reclaiming the land covered by the grant  with  a view to render it fit for cultivation, Now, it is plain that there is no legislative element in any of  the provisions of this grant.  It does not  contain  any command which has to be obeyed by the citizens of the State; it  is  a  gift  pure  and  simple  made  by  the  Ruler  in recognition of the fact that under the custom of the  family and the customary law of the State, he was bound to maintain his junior brother.  The grant, therefore, represents purely an  executive  act  on the part of  the  Ruler  intended  to discharge  his obligations to his ,junior brother under  the personal  law  of the family and the customary  law  of  the State.   It would, we think be idle to suggest that  such  a grant amounts to law.  It is true that partly it is based on the  requirement  of  personal and customary  law-,  but  no action  taken  by the Ruler in discharging  his  obligations under  such personal or customary law can be assimilated  to an  order  issued  by him in  exercise  of  his  legislative authority.   ’Therefore,  we have no difficulty  in  holding that  the  Sanad in question is a purely executive  act  and cannot be regarded as law as contended by Mr. Setalvad. It  was then faintly argued by Mr. Setalvad that  the  obli- gation undertaken by the Ruler was recognised by the respon- dent,  and so, it could not be cancelled by  the  respondent merely  by  an executive act.  In our opinion, there  is  no substance  in this argument.  If the act by which the  grant was made was a purely executive act on the part of the  then Ruler of the State of Dhenkanal, we do not see how it can be legitimately urged that the terms of the grant cannot either be modified, or the grant cannot be cancelled altogether  by an executive act of the respondent which is the successor of the  Ruler.   As we have just indicated, the  customary  law which  required  the Ruler to provide  maintenance  for  his junior  brother, can be said to have been continued  by  cl. 4(b) of the Order of 1948 and Art. 372 of the  Constitution; but  to  say  that  the customary  law  in  that  behalf  is continued  is very different from saying that the amount  of maintenance fixed by the grant cannot be 122 varied  or altered. What the respondent has done is to  stop the  payment of cash allowance of Rs. 5001- per month  an  a does  not mean alteration of the law.  It is  common  ground that the grant of the land covered by the Sanad has not been disturbed,  and  so,  all that the impugned  action  of  the respondent  amounts  to is to reduce the  total  maintenance allowance  granted to the appellant by the Ruler in 19 3  1. It  is  plain  that  though  the  customary  law   requiring provision to be made for the maintenance of the appellant is in  force,  the respondent has the right to  determine  what would be adequate and appropriate maintenance, and this part of the right is purely executive in character.  It would, we think,  be unreasonable to suggest that though the Sanad  is not law, the amount granted by the Sanad cannot be  modified by  an  executive  act  of  the  respondent,  and  that  the respondent must file a suit for that purpose.  All that  the customary law requires is the making of a suitable provision for the maintenance of the junior members of the family. But what  is adequate provision in that behalf will always be  a



question of fact which has to be determined in the light  of several relevant factors-, the number of persons entitled to receive  maintenance, the requirements of the status of  the members  of  the  family, the total income  derived  by  the family, and other commitments, may all have to be weighed in deciding the quantum of maintenance which should be  awarded to  anyone of the junior members.  In fact, both the  Courts below  have  agreed  in holding that having  regard  to  the relevant  facts,  the grant of the land made  by  the  Sanad would be adequate and appropriate for the maintenance of the appellant. But apart from this aspect of the matter, we do not see  how the appellant can seriously quarrel with the validity of the respondent’s  action  in discontinuing the payment  of  cash allowance  to him.  The plea that payment was made for  some time  after  the merger can hardly avail the  appellant.  in contending that the discontinuance is invalid.  In the  very nature  of  things, the respondent could  not  have  decided whether  the  cash  allowance should  be  continued  to  the appellant  or not without examining the merits of the  case, and  since a large number of such cases had to  be  examined after  merger,  if the payment continued to be made  in  the meantime, that cannot give any valid ground to the appellant to  challenge the legality of the ultimate decision  of  the respondent to discontinue the payment of the said allowance. The  result is, we confirm the decision of the  High  Court, though on somewhat different grounds.  The appeal according- ly  fails and is dismissed.  There would be no order  as  to costs. Appeal dismissed 123