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PETITIONER: SHRIMANT DATTAJI RAOBAHIROJIRAO GHORPADE

       Vs.

RESPONDENT: SHRIMANT VIJAYASINHRAO AND ANOTHER.

DATE OF JUDGMENT: 29/04/1960

BENCH: DAS, S.K. BENCH: DAS, S.K. SARKAR, A.K. HIDAYATULLAH, M.

CITATION:  1960 AIR 1272

ACT: Saranjam Estate-Maintenance grant to junior member-Power  of Government   to   resume  and  re-grant-Custom   of   lineal primogeniture,   extent  and  effect   of-Suit   challenging Government  order  of  resumption  and  re-grant-If  barred- Saranjam  Rules-Bombay Revenue jurisdiction Act, 1876  (Bom. X of 1876), s. 4.

HEADNOTE: Upon  the  death of the holder in 1932,  the  Government  of Bombay  by  order dated June 7, 1932, resumed  the  Saranjam estate of Gajendragad and re-granted the same to his  eldest son.  By the same order the assignment of some lands out  of the  estate in favour of B, a younger member of the  family, by way of maintenance was also continued.  On May 14,  1940, B died leaving his widow, A, and his undivided brother, D. A asked  the  Government  for permission to adopt  a  son  but without  the permission being granted adopted V on July  10, 1941.   By an order dated December 17, 1941, the  Government continued  the  maintenance  grant (Saranjam  potgi)  to  D. Thereupon V filed a suit against the    Government and D for recovery of the lands on the grounds (i)     that the  order of the Government dated December 17, 1941, was ultra  vires, null  and  void,  and  (ii) that by  the  custom  of  lineal primogeniture which prevailed in the family the lands,  upon the  death  of B and upon the adoption of V by  A,  devolved upon  V  in preference to D. The suit was  contested,  inter alia,  on the grounds: (i) that under the relevant  Saranjam Rules the interest of B came to an end on his death and  was not  such  as could devolve upon V despite the  order  dated December  17, 1941, (ii) that the alleged family custom  did not apply to maintenance grants and (iii) that the suit  was barred  under s. 4 Of the Bombay Revenue  jurisdiction  Act, 1876: Held,  that  the  plaintiff was not entitled  to  the  lands either under the Saranjam Rules or under the custom; further that  the  suit  was barred by $- 4 of  the  Bombay  Revenue jurisdiction Act, 1876. 103 790 The  maintenance  grant  (potgi holding)  was  part  of  the

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Saranjam  and  was  governed by the  incidents  of  Saranjam tenure  and by the relevant Saranjam Rules.  Saranjam grants were  granted  or withheld at the will and pleasure  of  the sovereign  power  and  the  grant  was  always  subject   to interruption  and  revocation by  resumption,  temporary  or absolute.   On the death of B it was open to the  Government to resume the grant and to grant it to D and this is what it did  by  the order dated December 17, 1941.  The  taking  in adoption of the plaintiff by the widow of the deceased could not  affect  the  operation  of  the  order  passed  by  the Government. Daulatrao  Malojiyao  v. Province of Bombay (1946)  49  Bom. L.R. 270, referred to. Even under the custom of lineal primogeniture pleaded by the plaintiff,  D was entitled to get the properties  after  the death  of B. It was not pleaded that the properties once  so vested  were divested by subsequent adoption by  the  widow. Further  it was neither pleaded nor proved that  the  custom took  away  the  right  of  the  Government  to  resume  the maintenance grant and to make a fresh grant thereof. Sub-clause  4 of the Bombay Revenue jurisdiction Act,  1876, barred  the  jurisdiction of civil courts in  respect  of  " claims  against the Government relating to lands granted  or held  as Saranjam".  The plaintiff asked for a finding  that the  order of December 17, 1941, was null and void  and  did not affect the properties in suit.  Unless the order was out of his way, the plaintiff was not entitled to claim recovery of  possession.   The claim was one which  fell  within  the mischief of s. 4 and the suit was barred.

JUDGMENT: CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 37 of 1960. Appeal from the judgment and decree dated November 12, 1952, of  the Bombay High Court in First Appeal No. 492  of  1949, arising out of the judgment and decree dated the 20th April, 1949,  of  the First Class Sub-Judge,  Dharwar,  in  Special Civil Suit No. 16 of 1943. S.   N.  Andley, J. B. Dadachanji, Rameshwar Nath and P.  L. Vohra, for the appellant. Naunit Lal, for respondent No. 1. B. R. L. Iyengar and T. M. Sen, for respondent No. 2. 1960.  April 29.  The Judgment of the Court was delivered by S.   K. DAS, J.-This is an appeal on a certificate given  by the  High Court of Bombay, from the judgment and  decree  of the said High Court dated 791 November 12, 1952, by which it reversed the decision of  the Civil  Judge,  First Class, at Dharwar  dated-,,  April  20, 1949, in Special Civil Suit No. 16 of 1943. The  material facts are these.  Gajendragad in Taluk Ron  in the  district of Dharwar is a Saranjam estate known  as  the Gajendragad Saranjam bearing number 91 in the Saranjam  list maintained  by Government.  Within that estate  lay  village Dindur and survey field No. 302 of Unachgeri, which are  the properties in suit.  One Bhujangarao Daulatrao Ghorpade  was the holder of the Saranjam estate at the relevant time.   In 1932  the  Saranjam was resumed and re-granted to  the  said Bhunjangarao  by Resolution No. 8969 dated June 7, 1932,  of the Government of Bombay in the Political Department.   This Resolution said: "  The  Governor in Council is pleased to  direct  that  the Gajendragad  Saranjam  should be formally  resumed  and  re- granted to Bhujangarao Daulatrao Ghorpade, the eldest son of

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the deceased Saranjamdar Daulatrao Bhujangarao Ghorpade, and that  it should be entered in his sole name in the  accounts of the Collector of Dharwar with effect from the date of the death  of the last holder.  The Collector should take  steps to  place the Saranjamdar in possession of the  villages  of the Saranjam estate which were in possession of the deceased Saranjamdar. The  Governor  in  Council  agrees  with  the  Commissioner, Southern   Division,  that  the  assignments  held  by   the Bhaubands as potgi holders should be continued to them as at present." One  of  the  younger branches of the  Ghorpade  family  was Babasaheb   Bahirojirao   Ghorpade,  to   be   referred   to hereinafter as Babasaheb.  He held by way of maintenance (as potgi  holder)  the aforesaid village of Dindur  and  survey field  No.  302 of Unachgeri.  He had an  undivided  brother called  Dattojirao, who was defendant No. 2 in the suit  and is appellant before us.  In this judgment we shall call  him the  appellant.   Babasaheb died on May 14,  1940.   On  his death he left a widow named Abayabai and the appellant,  his undivided  brother.   On  July 10,  1941,  Abayabai  adopted Vijayasinhrao   as   a,  son  to   her   deceased   husband. Vijayasinha was the plaintiff who brought the suit’ 792 and is now the principal respondent before us.  It will   be convenient  if  we call him  the  plaintiff-respondent,  and state  here  that he was the natural  son  of  Bhujaugarao’s younger brother, another Dattajirao to be distinguished from the appellant who also bears the same name.  On  Babasaheb’s death  Abayabai  asked  for sanction of  Government  to  her taking  a boy in adoption; this application was  opposed  by the  appellant.   On December 17, 1941,  the  Government  of Bombay passed a Resolution in the following terms: " 1. Government is pleased to direct that the Saranjam potgi holding  of village Dindur and Survey No. 302 of  Unacbgeri, which   were  assigned  for  maintenance  to  the   deceased potgidar, Mr. Babasaheb Bahirajirao Ghorpade, at the time of the   re-grant  of  the  Gajendragad  Saranjam,  should   be continued   to   his  undivided  brother,   Mr.   Dattajirao Babirojirao Ghorpade. 2.Government is also pleased to direct, under Rule 7 of  the Saranjam  Rules,  that  the  new  potgidar,  Mr.  Dattajirao Bahirojirao  Gborpade, should give to Bai Abaibai, widow  of the  deceased Potgidar, Mr. Babasaheb Bahirojirao  Ghorpade, an annual maintenance allowance of Rs. 300 for her life. 3.These  orders should take effect from the 14th May,  1940, i.e.,  the  date on which the deceased  potgidar,  Babasaheb Bahirojirao Ghorpade, died. 4.The Commissioner S. D. should be requested to  communicate these  orders  to Bai Abaibai, widow of the  late  potgidar, with reference to her petitions addressed to him and also to the  Rayats  of Dindur, with reference  to  their  petition, dated  the  12th  May,  1941.  The  orders  should  also  be communicated to the present Saranjamdar of Gajendragad." On  February 8, 1943, the plaintiff-respondent  brought  the suit against the Province of Bombay as defendant No. 1,  the appellant  as defendant No. 2 and Abayabai as defendant  No. 3.  The  suit was contested by the Province of  Bombay  (now substituted  by  the  State of Bombay)  and  the  appellant. Abayabai supported the case of the plaintiff-respondent, but she died during. the Pendency of the suit. 793 The  claim  of  the plaintiff-respondent  was  that  on  his adoption the estate of his deceased adoptive father devolved on him by the, rule of lineal primogeniture in preference to

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the  appellant.  The main plea of  the  plaintiff-respondent was  stated  in  paragraph 6 of the plaint,  which  read  as follows: " 6. The Government Resolution passed by defendant No. 1  in 1941  is  ultra vires and null and void  for  the  following reasons: (a)Defendant No. 1 made a re-grant of the Saranjam estate to Shrimant  Sardar Bhujaragarao Ghorpade in 1932  and  therein the  suit  properties were, according to  defendant  No.  1, continued  to  the adoptive father of  plaintiff  Under  the Saranjam  rules no occasion has arisen for  interference  by Government  at this stage.  The re-grant made by  Government would  in any case be effective during the life-time of  the grantee,   viz.,  Shrimant  Sardar   Bhujangarao   Ghorpade. Further  the said Shrimant Sardar Bhujangarao  Ghorpade  was not consulted by defendant No. 1 before the said  Government Resolution. (b)By the custom of the family to which the family  belongs, the  estate  of a deceased person devolves by  the  rule  of lineal primogeniture.  Hence after the death of  plaintiff’s adoptive  father and the adoption of plaintiff himself,  all the  estate  vested  in  plaintiff’s  adoptive  father   has devolved on the plaintiff in preference to defendant No.  2. The  action  of  defendant No. 1 in ignoring  this  rule  of succession  prevalent in the family is ultra vires and  null and void." On the aforesaid pleas, the plaintiff-respondent prayed  for (a)  recovery of possession of properties in suit  from  the appellant, (b) mesne profits, and (c) costs. On behalf of the Province of Bombay several pleas by way  of defence  were taken.  The main pleas were (1) assuming  that the   plaintiff-respondent  was  validly  adopted,  he   had nevertheless  no  legal  claim to  the  properties  in  suit because  under the relevant Saranjam Rules the  interest  of Babasabeb came to an end on his death and was not of such  a nature as would 794 devolve  on the plaintiff-respondent despite the  Government Resolution  dated  December 17, 1941, (2) that  the  alleged family  custom did not apply to maintenance grants, and  (3) that,  in any event, the suit was barred under s. 4  of  the Bombay  Revenue  Jurisdiction  Act,  1876.   The   appellant besides supporting the aforesaid pleas raised the additional pleas  that  there was no valid adoption of  the  plaintiff- respondent  and  Abayabai was expressly  prohibited  by  her husband from adopting a son. On these pleadings several issues were framed.  The suit was originally  dismissed on a preliminary ground, namely,  that the  plaint  did  not disclose any  cause  of  action.   The learned  Civil  Judge  apparently took  the  view  that  the properties in suit were subject to the Saranjam Rules and on examining those rules, he came to the conclusion that as the plaintiff-respondent on his adoption became a nephew of  the appellant  and in that sense was claiming  maintenance  from the  latter,  it was necessary for him to have  alleged  the necessary  circumstances  under which certain members  of  a Saranjam Family are entitled to claim maintenance under Rule 7  of  the said Rules and as those  circumstances  were  not pleaded by the plaintiff-respondent, the plaint disclosed no cause  of action.  The High Court rightly pointed  out  that the   plaintiff-respondent   did  not  make  a   claim   for maintenance under Rule 7 of the Saranjam Rules, but  claimed that the properties in suit devolved on him by reason of his adoption and the custom of lineal primogeniture.  Therefore, the  High  Court  held  that the  claim  of  the  plaintiff-

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respondent  was much more fundamental than a mere  claim  of maintenance,  and  the learned Civil Judge  had  misdirected himself as to the true scope of the suit.  Accordingly,  the High  Court set aside the decree of dismissal  and  directed the suit to be tried on all the issues. After  this direction the learned Civil Judge tried all  the issues.  Issues 1 and 2 related to the question of adoption, namely,  (1) whether the ceremony of adoption  was  properly proved  and (2) whether Babasaheb during his  life-time  had prohibited  his wife from making an adoption.  On the  first issue the learned 795 Civil Judge found in favour of the plaintiff-respondent  and on  the  second against him.  The High  Court  affirmed  the finding  on the first issue, and on a careful  and  detailed examination  of the evidence held on the second  issue  that the  learned  Civil  Judge was wrong  in  holding  that  the adoption was invalid by reason of the alleged prohibition of Babasaheb.   The  High  Court held that there  was  no  such prohibition,  and the adoption was valid.  We do  not  think that  this  finding  of the High Court has been  or  can  be successfully   assailed  before  us.   Therefore,  we   have proceeded  in  this appeal on the basis that  the  plaintiff respondent was validly adopted by Abayabai on July 10, 1941. We  go  now  to a consideration of those  issues  which  are material for a decision of this appeal.  They are: Issue No. 3--Does plaintiff prove his title to the suit property ? Issue No. 4--Is it proved that the Government Resolution (D. G.)  No. 8969 of December 17, 1941, is ultra vires and  null and void as alleged in the plaint ? Issue  No.  5-Is  the suit barred under  section  4  of  the Revenue Jurisdiction Act ? Issue  No. 7-Is the alleged custom set up in para.  6(b)  of the plaint proved ? On  all these issues the learned Civil Judge  found  against the  plaintiff-respondent, and held that the latter was  not entitled  to recover possession Of the properties  in  suit, that he had failed to prove the custom pleaded in  paragraph 6(b)  of  the  plaint, that  the  Government  Resolution  of December  17,1941,  was not ultra vires, and that  the  suit itself  was  barred  under  s.  4  of  the  Bombay   Revenue Jurisdiction  Act,  1876.   The  High  Court  reversed   the decision  of  the learned Civil Judge on all  the  aforesaid issues,  and held that as the properties in suit were  given to  the junior branch of Babasaheb for its  maintenance  and were   impartible  and  governed  by  the  rule  of   lineal primogeniture,   they  devolved  on  the   appellant   after Babasaheb’s death ; but as soon as Babasaheb’s widow 796 made  a  valid adoption, the properties were  divested   and inasmuch  as  the  plaintiff-respondent  became  the  eldest member of the senior branch of Babasaheb’s family, he became entitled  thereto as a result of the combined effect of  the family  custom and ordinary Hindu law.  The High Court  said that looked at from this point of view, no question arose of the validity of the Government Resolution dated December 17, 1941,  and  no  relief for possession  having  been  claimed against Government, the suit was not barred under s.   4  of the Bombay Revenue Jurisdiction Act, 1876. On  behalf  of the appellant, it has been  very  strenuously argued that the High Court was in error in holding that  the properties  in suit which are part of a Saranjam, vested  in the  appellant  on  ’the death of Babasaheb  and  were  then divested on the adoption of the plaintiff-respondent; it  is contended  that such a conclusion is inconsistent  with  the

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nature of a Saranjam tenure and furthermore, the  properties in suit having vested in the appellant by reason of the  re- grant dated December 17, 1941, they could not be divested by the adoption made on July 10, 1941.  Nor does it follow,  it is  contended, from the custom pleaded in paragraph 6(b)  of the plaint, apart from the question whether even that custom has  been proved or not, that the properties in suit  having once  vested  in the appellant will be divested on  a  valid adoption.   Secondly,  it has been contended that  the  High Court  was also in error in holding that there was no  claim against Government within the meaning of the fourth  sub-cl. of  s.  4(a) of the Bombay Revenue Jurisdiction  Act,  1876. The argument before us has been that there was such a claim, and no Civil Court had jurisdiction to determine it. We are satisfied that these arguments are correct and should be accepted.  The claim of the plaintiff respondent that the properties  in suit devolved on him on his adoption  may  be examined either from the point of view of the Saranjam Rules or  the  custom which he pleaded in paragraph  6(b)  of  the plaint.   Let us examine the claim first from the  point  of view of the Saraniam Rules assuming here that they apply, 797 as far as practicable, to maintenance grants (potgis) within the  Saranjam.   In the Resolution of June 7,  1932,  quoted earlier, the Government of Bombay treated the potgi  holders as  being within the Saranjam and made provision  for  them. The Resolution of December 17, 1941, also proceeded on  that footing.  Two earlier Resolutions, one of 1891 (Ex. 100) and the  other  of  1936 (Ex. 101), also treated  the  whole  of Gajendragad and also parts thereof as a Saranjam.  Babasaheb in his lifetime wanted to surrender the grant in his  favour to  the Saranjamdar, but Government refused to  accept  such relinquishment.   Even  Abayabai  asked  for  permission  of Government  to take a boy in adoption, which permission  she did  not obtain.  All this shows that the potgi holding  was part  of  the Saranjam and was treated as such  by  all  the parties concerned. What  is  a Saranjam ? The word " Saranjam  literally  means apparatus, provisions or materials.  In his Glossary, Wilson defines  Saranjam as temporary assignments of  revenue  from villages  or  lands for support of troops  or  for  personal service usually for the lifetime of the grantees.  Dr. G. D. Patel  in  his  book  on  "  The  Indian  Land  Problem  and Legislation has said: "  According to the account given by Col.  Etheridge in  his preface  to  the Saranjam List, it was the practice  of  the former  Governments, both the Muslims and the  Marathas,  to maintain  a  species  of feudal aristocracy  for  the  State purposes by temporary assignments of revenue either for  the support  of the troops or personal service, the  maintenance of  official  dignity or for other  specific  reasons.   The holders  of such lands were entrusted at the time  with  the necessary   powers   for  enabling  them  to   collect   and appropriate  the  revenue  and  to  administer  the  general management  of  the  lands.  Under  the  Muslim  rule,  such holdings  were called Jahagirs and under the  Maratha  rule, they came to be called Saranjam.  However, this  distinction between  these  tenures ceased to exist during  the  Maratha period.   At  the time of the introduction  of  the  British rule, 104 798 the  difference between a Jahagir and a Saranjam  ceased  to exist,  to all intents and purposes.  The two  terms  became convertible  and  all such grants came to be  known  by  the

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general  term "saranjam".  Apart from the  Saranjam  grants, which were found only in the Deccan, there were other grants of a political nature found scattered over the whole  State. Their  origins did not materially differ from those  of  the Saranjam with the result that the British treated them under the same rules called the Saranjam Rules ". The  Saranjam  Rules  were made in exercise  of  the  powers referred to in r. 10 of Schedule B of Act Xi of 1852 and  of the  second  sub-cl. to el. 3 of s. 2 of Bombay Act  VII  of 1863.  We may here reproduce some of these Rules: "   Rule  I-Saranjams  shall  be  ordinarily  continued   in accordance  with  the decision already passed or  which  may hereafter be passed by Provincial Government in each case. Rule 2-A Saranjam which has been decided to be  hereditarily continuable  shall  ordinarily descend to  the  eldest  male representative in the order of primogeniture, of the  senior branch  of  the  family descended  from  the  First  British grantee  or  any  of  his brothers  who  were  undivided  in interest.   But Provincial Government reserve to  themselves the rights for sufficient reasons to direct the  continuance of  the Saranjam to any other member of the said family,  or as an act of grace, to a person adopted into the same family with the sanction of Provincial Government.  When a saranjam is  thus continued to an adopted son, he shall be liable  to pay  to Provincial Government a nazarana not  exceeding  one year’s  value of the saranjam, and it shall be  levied  from him in such instalments as Provincial Government may in each case direct. Rule  5-Every saranjam shall be held as a life  estate.   It shall be formally resumed on the death of the holder, and in cases  in  which it is capable of  further  continuance,  it shall be made over to the next holder as a, fresh grant from Provincial 799 Government,  unencumbered by any debts or charges save  such as may be specially imposed by Provincial Government itself Rule  7-Every saranjamdar shall be responsible for making  a suitable  provision  for  the maintenance of  the  widow  or widows  of the preceding saranjamdar, his own  brothers,  or any  other  member of his family who, having a  valid  claim arising from infancy, mental or physical deformity rendering such member incapable of earning a livelihood, may be deemed deserving of support at his hands.  When this obligation  is not fulfilled by any saranjamdar, Provincial Government  may direct  him to make suitable provision for such  person  and may  fix  the amount, which he shall pay in  each  instance; provided  that no one who has independent means of his  own, or  is, in the opinion of Provincial  Government,  otherwise sufficiently provided for, shall be entitled to  maintenance from the Saranjamdar. Rule 8-Every order passed by Provincial Government under the above  rule  for the grant of maintenance by  a  Saranjamdar shall hold good’ during his life only The  true  nature of a Saranjam tenure was considered  by  a Full  Bench of the Bombay High Court in Daulatrao  Malojirao v.  Province  of  Bombay(1)  where  their  Lordships   after referring  to the earlier decisions in Shekh Sultan Sani  v. Shekh Ajmodin (2) and Raghojirao v. Laxmanrao(3) observed: " An examination of the authorities, makes it clear that the whole  structure  of  a Saranjam tenure is  founded  in  the sovereign  right,  which can only change by conquest  or  by treaty.   So founded, jagirs and Saranjams, with the  feudal incidents  connected with them, are granted or  withheld  at the  will  and  pleasure of the  sovereign  power,  and,  if granted,   the  fixity  of  tenure  is  always  subject   to

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interruption  and revocation by resumption, be it  temporary or absolute in character.  No incident normally applicable (1) (1946) 49 Bom.  L.R. 270.  (2) (1892) L.R. 20 I.A. 50. (3) (1912) 14 Bom.  L.R. 1226. 800 to private rights between subject and subject can fetter  or disturb the sovereign will ". It  seems  to us manifestly clear that  the  Saranjam  Rules furnish no basis for the claim of the plaintiff  respondent. Abayabai asked for sanction to her taking a boy in adoption. No  such sanction was given.  On the death of Babasaheb,  it was  open  to  Government to resume the grant,  and  by  its Resolution  of December 17, 1941, Government  directed  that the Saranjam potgi holding of village Dindur and Survey  No. 302 of Unachgeri should be continued to the appellant.  This really  amounted to a resumption and fresh grant and  we  do not agree with the High Court that the order passed amounted to no more than recognising the legal position according  to the rule of succession and stood on the same footing as  any order  of ordinary mutation.  The High Court has  emphasised the  use of the word " continued " in the  Resolution  dated December  17, 1941, and has contrasted that Resolution  with the earlier Resolution dated June 7, 1932, which was clearly a  Resolution giving effect to a resumption and  regrant  of the  Gajendragad Saranjam.  It may, however, be pointed  out that  in paragraph 2 of the earlier  Resolution,  Government used  the  same word " continued " in  connection  with  the maintenance   grants,  namely,  potgi  holdings   within   a Saranjam.   Nothing,  therefore, turns upon the use  of  the word " continued " and if the ]Resolution dated December 17, 1941,  is  read  as a whole it is clear that  the  potgi  of village  Dindur  and Survey field No. 302 of  Unachgeri  was granted to the present appellant.  It was open to Government to pass such an order, and we see no reasons to hold that it was null and void.  Indeed, the High Court did not say  that it  was an invalid order; on the contrary, it said  that  it was a good order and operated with effect from the death  of Babasaheb.  But it said erroneously in our opinion, that  by reason  of  the  subsequent event  of  adoption,  the  order ceased, for all practical purposes, to have any effect  from that  event.  It is well to remember that the adoption  took place  on  July 10, 1941, and the Resolution was  passed  on December 17, 801 1941, though it took effect retrospectively from the date of death of Babasaheb.  We see no reasons why S, a valid  order made by Government will cease to have any effect because  of an adoption made by Abayabai without sanction of Government. To hold that the Government Order ceased to have any  effect by  reason  of  the act of a private party  will  be  to  go against the very nature of a Saranjam tenure. Let  us  now examine the claim of the  plaintiff  respondent from  the point of view of the custom pleaded  in  paragraph 6(b)  of  the plaint.  The custom pleaded was  the  rule  of lineal  primogeniture.  In its written statement  Government said: "  The family custom alleged in clause (b) is not  admitted, and it is denied that such a custom can apply in respect  of maintenance  grants.   Under Rule 7 of the  Saranjam  Rules, which merely embody the customary law relating to Saranjams, Government is given absolute discretion to determine whether or  not to make an order and what provision to make  and  in whose favour The appellant said: " The contents of para. 6(b) of the plaint are not  correct.

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The  custom  of  descent by the  rule  of  primogeniture  is denied.    This   defendant   has  become   the   owner   by survivorship, after the death of Babasaheb ". The  learned  Civil Judge found that the custom  pleaded  in paragraph 6(b) of the plaint was not proved.  The High Court has  not referred to any evidence on which the custom  could be  said  to  have been proved, but observed that  "  it  is common ground that the properties which had been assigned to this  branch for its maintenance is impartable and  goes  by primogeniture".   Even if we assume that the High  Court  is right  in its observation, though in face of the  denial  in the  two written statements it is difficult to see how  this could  be  common  ground between the parties,  we  fail  to appreciate   how   the  assumption  helps   the   plaintiff- respondent.   On  the  operation  of  the  rule  of   lineal primogeniture  after the death of Babasaheb,  the  appellant became entitled to and got the 802 properties.   It  was  not pleaded in the  plaint  that  the properties  once  vested  by the customary  rule  of  lineal primogeniture  were divested on subsequent adoption, by  the widow.   No such plea was specifically taken,  but the  High Court relied on the concession made by learned advocate  for the  appellant that under ordinary Hindu law the  properties which  were  vested  in the appellant  were  divested  on  a subsequent  valid  adoption by the widow.   We  consider  it unnecessary to go into the vexed question of divesting of an estate  on a subsequent valid adoption by the widow.  It  is enough to point out that the plaint disclosed no such  case; no  such  issue  was  raised and it  was  not  open  to  the plaintiff-respondent  to make out a new case for  the  first time  in appeal.  The plaintiff-respondent set up  a  family custom  of lineal primogeniture different from the  ordinary law  of inheritance; it was incumbent on him to  allege  and prove the custom on which he relied and to show its  precise extent and how far it prevailed over ordinary Hindu law.  In our  opinion, he failed to plead or prove any family  custom by which the properties devolved on him.  Moreover, in order to  succeed the plaintiff respondent must further  establish that the custom was such as would bind the Government.   The appellant and the Government never conceded that the  custom of lineal primogeniture, if it prevailed in the family, took away the right of Government to resume the maintenance grant which was part of a Saranjam and make a fresh grant  thereof in accordance with the Saranjam Rules. Now,  as  to s. 4 of the Bombay  Revenue  Jurisdiction  Act, 1876.   The  section,  so  far as it  is  relevant  for  our purpose, says:- " S. 4.-Subject to the exceptions hereinafter appearing,  no Civil  Court  shall exercise jurisdiction as to any  of  the following matters: (a)claims  against the Government relating to  any  property appertaining  to  the  office  of  any  hereditary   officer appointed or recognised under Bombay Act no.  III of 1874 or any  other law for the time being in force, or of any  other village-officer or servant, or 803 claims to perform the duties of any such officer or servant, or in respect of any injury caused by,, exclusion from  such office or service, or suits to set aside or avoid any order under the same Act  or any  other  law relating to the same subject  for  the  time being in force passed by the State Government or any officer duly authorized in that behalf, or claims  against the Government relating to lands held  under

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treaty, or to lands granted or held as Saranjam, or on other political  tenure,  or to lands declared by  the  Provincial Government or any officer duly authorized in that behalf  to be held for service". In  Mallappa  alias Annasaheb Basvantrao Desai  Nadgouda  v. Tukko Narshimha Mutalik Desai and Others (1) it was  pointed out that in the section a distinction has been made  between claims  and suits.  The subclause we are concerned  with  is the  fourth sub-clause which relates inter alia to "  claims against the Government relating to lands granted or held  as Saranjam ". The High Court has taken the view that no  claim was  made  against Government in the present case.   We  are unable to agree.  In express terms, the plaintiff respondent asked  for  a finding that the Government  Resolution  dated December 17, 1941, was null and void and did not affect  the properties  in  suit because the Government  had  either  no authority to make such an order or no occasion to do so.  He asked  for  possession of those properties in spite  of  the orders  of Government.  In these circumstances we must  hold that  Government was more than a purely formal party, and  a claim was made against it in respect of the orders contained in  its  Resolution  dated December 17,  1941.   Unless  the Resolution  is out of his way, the  plaintiff-respondent  is not  entitled  to  claim recovery  of  possession  from  the appellant  with mesne profits, etc.  The Civil Court has  no jurisdiction  to determine any claim against the  Government in the matter of the Resolution of December 17, 1941, relat- ing to Saranjam lands, and the suit was barred under s.   4 of the Bombay Revenue Jurisdiction Act, 1876. (1) I.L.R. [1937] Bom. 464. 804 We accordingly allow this appeal, set aside the judgment and decree  of  the  High Court dated  November  12,  1952,  and restore  that  of the learned Civil Judge  dated  April  20, 1949.    The  appellant  will  be  entitled  to  his   costs throughout from the plaintiff-respondent.                                      Appeal allowed.