http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: THAKORE SOBHAG SINGH

       Vs.

RESPONDENT: THAKUR JAI SINGH & ORS.

DATE OF JUDGMENT: 31/01/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. BHARGAVA, VISHISHTHA

CITATION:  1968 AIR 1328            1968 SCR  (3) 848  CITATOR INFO :  R          1974 SC 994  (94)  APL        1990 SC 334  (27)

ACT: Jaipur Matmi Rules, 1945-Whether have force of  law-Adoption prior   to  promulgation  of  Rules  without   sanction   of Ruler--validity. Board of Revenue, Rajasthan-Jurisdiction to decide questions of adoption and succession to jagirs in Jaipur State.

HEADNOTE: The Board of Revenue, Rajasthan. without recording a finding on the factum of respondent’s adoption to the last holder of the  jagir,  rejected  his claim to  be  recognised  as  the adopted son, on the around that, under the Matmi Rules,  the adoption, without the previous sanction of the Ruler,  could not be recognised for the purpose of determining  succession to  the jagir.  In the writ petition filed by him, the  High Court  dealt-  with the dispute on merits and,  holding  (a) that  the Jaipur Matm Rules had no statutory  force  because the Ruler had not given his assent to them; (b) that on  the death  of the last holder without any issue the jagir  would vest in the respondent if it was proved that he was  adopted in  accordance with the personal law of the  last  jagirdar; and  (c) that rule 14(2) requiring the previous sanction  of the  Government  of the State to adopt  is  prospective  and could  have  no application to an adoption made  before  the Rules  were  promulgated, directed the Board to  decide  the case in accordance with the law declared by the High  Court. The  Board held that the respondent was proved to have  been adopted by the last jagirdar and directed that he should  be recognised as the jagirdar. In  appeal to this Court, against the order of the Board  of Revenue  it was contended by the appellant, who  claimed  to have a preferential right to the jagir, that : (1) the Board of  Revenue  had  no  jurisdiction  to  decide  the  dispute relating to adoption as it was triable by a civil court, and (2) since the Jaipur Matmi Rules (Validation) Act, of  1961, was  passed after the judgment of the High Court, the  Board was  bound  to  dispose of the matter in the  light  of  the Rules.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

HELD   :  (1)  Under  the  Rajasthan  Jagir  Decisions   and Proceedings  (Validation) Act, 1955, the power to deal  with and decide disputes relating to succession to  jagir-estates was vested, in respect of proceedings pending at the date of the  Act and instituted thereafter, in the  Revenue  Courts. Therefore, the Board of Revenue was competent to decide  the question  relating  to the respondent’s  adoption,  and  its decision on the factum of adoption recorded on  appreciation of evidence must be accepted. [852 D-E, HI (2)  It  was not open to the appellant to contend  that  the right  of the respondent, as the adopted son, to  the  jagir had  to  be decided by the Board on the basis of  the  Matmi Rules  and  not in accordance with the personal law  of  the last jagirdar. (a)  Though  the  State legislature enacted  the  Validation Act, declaring that the Matmi Rules ’shall have and shall be deemed  always  to have had, the force of law and  shall  be treated  as being and as having been an existing  jagir  law within the meaning of s. 2(d) of the Rajasthan Land  Reforms and Resumption of Jagirs Act, 1952, notwithstanding anything 849 contained  in  any judgment of any court, the  Act  did  not supersede the judgment of the High Court and therefore,  the Board  was incompetent to consider and decide  the  question whether  the Government may, in the absence of its  previous sanction, refuse to recognise the adoption of the respondent on the basis of the Matmi Rules. [854 A-C] (b)  According  to the personal law applicable to  the  last jagirdar, the respondent could have been adopted by him  and the  finding of the High Court that the jagir would vest  in the  respondent as the adopted son in accordance  with  such personal  law  operated  as res judicata and  could  not  be reopened  before the Board of Revenue; and, it was not  open to the appellant to contend in the appeal to this Court that the  decision of the high Court on questions decided in  the writ petition was erroneous.  The order of the High Court on the writ petition was not an interlocutory order. [854 E-G] (c)  Rule  14(2)  is  on  its  terms  prospective  and   the Validation Act does not give retrospective operation to  the Matmi Rules. [853 F] (d)  It could not be contended that the judgment of the High Court  should not be treated as res judicata, on the  ground that if it was regarded is binding between-the parties,  the equal  protection  clause  of  the  Constitution  would   be violated  if  another person similarly situated were  to  be differently treated by the Board of Revenue. [855 E-F]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 568 of 1965. Appeal  by special leave from the judgment and  order  dated October 23, 1962 of the Board of Revenue, Rajasthan at Ajmer in Matmi Case No. 40 (Jhunjhunu) of 1961. M.   M.  Tiwari,  D.  D.  Varma  and  Ganpat  Rai,  for  the appellants. A.   K. Sen, D. P. Gupta, Sobhag Mal Jain and B. P. Mahesh- wari, for respondent No. 1. K. B. Mehta and Miss Indu Soni, for respondent Nos. 2 to 4. The Judgment of the Court was delivered by Shah,  J.  This  is an appeal  brought  with  special  leave against  the judgment dated October 23, 1962 in  Matmi  Case No.  40  of  1961,  of the file of  the  Board  of  Revenue, Rajasthan.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

Thakur  Sabhal  Singh-hereinafter  called  ’Sabhal  Singh’-a jagirdar of Thikana Jhakora in Shekhawati area in the former Indian  State  of  Jaipur applied on  November  3,  1933  to recognize  Jai Singh-the first respondent in this  appeal-as his  adopted son for succession to the Thikana.  On May  23, 1936, the Ruler of Jaipur in Council ordered that he "saw no reason  at  the  present moment to  recognize  the  adoption advocated  by" Sabhal Singh, and that the "alleged  adoption of  Jai  Singh shall in no way be deemed to be  an  adoption that  will  in  any sense bind the  Darbar  as  regards  the question  of  succession".  On June 16, 1947,  Sabhal  Singh preferred  another  application  to the  Prime  Minister  of Jaipur  for  recognizing  the adoption  of  Jai  Singh,  The application was 850 sent  to the Board of Revenue for enquiry and  report  under the Jaipur Matmi Rules, 1945.  The Board of Revenue reported that  in view of the Council Resolution dated May 23,  1936, the application was not maintainable since Sabhal Singh  was living  at  the date of the application.   But  before  this application  could be finally disposed of by the  Government of  the  State of Jaipur Sabhal Singh died  and  the  Prime, Minister of Jaipur directed that necessary enquiries be held under  the Matmi Rules, and for that purpose the record  ’be sent to the Deputy Commissioner for taking action  according to  the  Rules.   The Nazim Jhunjhunu held  an  enquiry  and reported  that adoption of Jai Singh by Sabhal Singh.  could not  be recognized, for, under the Council Resolution  dated May  23, 1936, the Government had refused to ant any  recog- nition  to  the  adoption.  In the view of  the  Nazim,  the adoption  of Jai Singh by Sabhal Singh without the  previous sanction of the Government was invalid, and evidence of  the "factum  of  adoption" was inadmissible, but  that  did  not debar  Jai Singh from setting up a claim to succeed  to  the Thikana  as a descendant in the senior line of the  original grantee.   An  appeal  against  that  order  to  the  Deputy Commissioner  was  dismissed.   A  second  appeal  was  then carried to the Board of Revenue.  In the view of the  Board, on  the terms of the Council Resolution dated May 23,  1936, an  enquiry  into the factum of adoption could not  be  shut out.   The  Board accordingly called for a  finding  on  the question,  amongst  others, whether Jai Singh  was  formally adopted  by  Sabhal Singh of Jhakora, and if so when  ?  The Nazim  reported that the adoption of Jai Singh stood  proved satisfactorily,  but  the adoption could not  be  recognized because no previous sanction of the Ruler had been obtained. Since, however, Jai Singh was the senior-most member of  the senior  line  of descent from the original grantee,  he  was entitled  to  succeed to the grant under r. 14  (I)  of  the Jaipur  Matmi  Rules,  1945,  in  preference  to  any  other claimant.  The papers were then submitted to the  Collector, Jhunihunu.  The Collector confirmed the finding of the Nazim that  Jai  Singh  was adopted by Sabhal Singh,  but  in  the absence of previous sanction of the Ruler the adoption could not  be recognized.  The Collector did not,  however,  agree with  the Nazim that Jai Singh was the senior member of  the senior  line of the original grantee : he held  that  Sobhag Singh-appellant in this appeal-was the senior member of  the senior  line  of the original grantee and  recommended  that "the Matmi be granted in favour of Sobhag Singh." The  Board of Revenue agreed with the Collector that Jai Singh was  not the senior member of the senior line of the original grantee of  the  grant in question, and that  the  appellant  Sobbag Singh  bad a preferential claim to the grant of Matmi.   The Board  without recording a finding on the issue of  adoption

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

accepted the recommendation of the Collector. 851 Jai  Singh  then  moved a petition under  Art.  226  of  the Constitution  before the High Court of Rajasthan.  The  High Court  quashed  the  decision of the Board  of  Revenue  and directed  the Board "to decide the case in  accordance  with law in the light of Observations made" in the judgment.   In the opinion of the High court, the Jagir devolved  according to  the personal law applicable to the last holder, and  the personal  law included the custom or usage relating  to  the particular Jagir; that the custom or usage applicable to the Jagir in question was that the adopted son must be a  direct male  lineal  descendant of the original grantee,  and  that Nahar  Singh  was  the  original grantee  of  the  Jagir  in question  and Jai Singh as a descendant of Nahar  Singh  was entitled to take he Jagir if it was proved that the adoption had been made in accordance with the personal law, that  the Matmi Rules had no statutory force because it was not proved that  assent of the Ruler of Jaipur had been given  thereto, and  that even assuming that the rules were "existing  Jagir law"  they  did not govern adoptions lade before  they  were brought  into  force.   An application  for  certificate  to appeal to this Court against the judgment of the High  under Art. 133 of the Constitution was rejected on the round  that the  dispute had not been finally decided, and a  number  of issues remained to be decided. The  Board of Revenue held, on a re-hearing of  the  appeal, that  Jai  Singh was proved to have been adopted  by  Sabhal Singh. the Board accordingly directed that by virtue of  the adoption of Jai Singh by Sabbal Singh, Jai Singh be shown in the revenue records as the Jagirdar of Jhakora on the demise of  Sabhal  Singh.   Against that order,  Sobhag  Singh  who claimed  to have a preferenal right to the Jagir of  Jhakora has appealed to this Court. A large number of grounds were canvassed at the Bar in  sup- port of this appeal : they fall into three broad divisions :               (1)   That   the  Board  of  Revenue  had   no               jurisdiction  to decide a dispute relating  to               adoption  which  dispute was -triable  by  the               Civil Court alone;               (2)   Since  the Jaipur Matmi Rules  had  been               validated   by   the   Jaipur   Matmi    Rules               (Validation)  Act, 1961 (Act 21 of 1961),  the               Board  was bound to decide the appeal  in  the               light of the Rules; and               (3)   That  on the evidence it is  not  proved               that  Jai Singh was in fact adopted by  Sabhal               Singh as his son on Kartik Sudi 13 Samvat Year               1987. The first and the third grounds present no difficulty.   The Rajasthan Legislature enacted the Rajasthan Jagir  Decisions and  Proceedings  (Validation) Act 18 of  1955  to  validate certain decisions 85 2 given, and proceedings taken, in respect of matters relating to  the  resumption of Jagirs in the covenanting  States  of Rajasthan,  and  the  recognition according to  the  law  of succession  to the rights and titles of  Jagirdars  therein, and to provide the forum for the disposal of such cases  and proceedings.  The State of Jaipur was or of the  covenanting States.   By  s.  3 of that Act it  was  provided  that  all decisions of the various grades of Revenue Courts or officer in  cases or proceedings arising out of, or under, the  laws of  the covenanting States providing for the  resumption  of jagirs in those States and the recognition of succession  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

the  rights and titles of jagirdars therein shall  be  valid and shall be deemed always to have been valid and shall  not be  liable  to  be called in question in  any  Civil  Court. Section  4  provided for continuance of  pending  cases  and proceedings  before  the  Revenue Courts  as  if  they  were properly  instituted.  Section 5 provided that all cases  or proceedings of the nature referred to in S. 3 may after  the Act  be instituted in the Court of the Collector  exercising jurisdiction in ’the area within which the subject-matter of the  case or proceeding is situate.  Provision was made  for appeals  from the orders of the Revenue Courts by S. 8,  and by  S.  12 the order of the Board of  Revenue  was  declared final.   The  jurisdiction of the civil court  to  entertain suits  or  proceedings  referred to  in  s.5  was  expressly excluded  by  S.  13.  The power to  deal  with  and  decide disputes relating to succession to jagir estates was  there- fore  vested in respect of proceedings pending at -the  date of the Act and instituted thereafter, in the Revenue Courts. The Board of Revenue was, therefore, competent to decide the question  relating  to the adoption of Jai Singh  by  Sabhal Singh. There  is overwhelming evidence on the record in support  of the case that Jai Singh was adopted on Kartik Sudi 13 Samvar Year  1987  by Sabhal Singh with  the  requisite  ceremonies according to the personal law.  Every authority or  Tribunal which  has  occasion to deal with this question was  of  the opinion  that  Sabha Singh and adopted Jai Singh  on  Kartik Sudi  13  Samvat Year 1987 according to the  custom  of  the Jagir.   Apart from the oral evidence, there is the deed  of adoption,  a  copy of an invitation sent to  an  invitee  to attend  the  adoption  ceremony  and  the  recitals  in  the application submitted by Sabhal Singh requesting recognition of  the adoption of Jai Singh.  The Board of Revenue in  the judgment  under appeal has carefully analysed the  evidence, and  we  see no reason to enter upon a  reappraisal  of  the evidence  in  this  appeal with  special  leave.   The  view recorded by the Board of Revenue on appreciation of evidence that Jai Singh was adopted as a son by Sabhal Singh must  be accepted. The  second contention may now be considered.  In  1945  the Jaipur  Matmi Rules were published in the  State  Government Gazette.   By r. 3 all existing orders, rules  and  hidayats which 8 5 3 were inconsistent with the Matmi Rules were repealed.   Rule 4 sub-r. (3) defined "Matmi" as meaning mutation of the name of  the successor to a State grant on the death of the  last holder.  By r. 5 it was provided that all State grants shall be subject to matmi with certain exceptions not relevant  in this case.  Rule provided               I  )  Subject to the provisions of rule  1  3,               succession  in  the absence of a  direct  male               lineal descendant of the last holder shall  be               restricted  to the lineal male descendants  of               the  original grantee, preference being  given               to the senior member of the senior line               Provided, firstly, that in the case of a grant               for  the  maintenance of a temple,  mosque  or               other  religious  place,  other  than  a  Jain               temple,  it shall be within the discretion  of               Government  to select as successor any one  of               the  male lineal descendants of  the  original               grantee,  with due regard to  his  suitability               for the performance of worship; and               Provided, secondly,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

             (2)   No adoption shall be recognised for  the               purpose of succession to a State grant  unless               a holder has obtained the previous sanction of               the  Government to adopt, such sanction  being               given  only in favour of a direct male  lineal               descendant of the original grantee               Provided, firstly,               Provided, secondly, That   rule  is  plainly  prospective,  and  can   have   no application  to  an  adoption made  before  the  Rules  were promulgated.  Previous sanction to adopt is not a  condition of  the (,rant of recognition for the purpose of  succession to  a State grant in respect of a person who is  adopted  by the holder of a Jagir before the date of the promulgation of the Rules.  That was the view taken by the High Court in the writ  petition filed by Jai Singh against the order  of  the Board  of Revenue.  The High Court also held that the  Matmi Rules were not sanctioned by the Government, and had not the force  of  law.  It is true that the State  Legislature  has enacted  Act  21  of 1961-called  ’The  Jaipur  Matmi  Rules (Validation) Act 1961’.  By s. 2 of that Act it is  provided that "notwithstanding anything     contained  in the  Jaipur General Clauses Act, 1944, or any otherlaw  or in any  rule of  interpretation  or in any judgment decision,  decree  or order  of any court, notwithstanding any omission or  defect of  form or procedure or want of any competent  sanction  or approval, it is hereby declared that the Jaipur Matmi Rules, 1945, published in the Jaipur Gazette, Extraordinary, dated 85 4 the  8th December, 1945, under Revenue  Branch  Notification No.  15941/Rev., dated 24th November, 1945, shall have,  and shall  be  deemed always to have had, the force of  law  and shall  be treated as being and as having been  an  ’existing Jagir law’ within the meaning of clause (d) of section 2  of the  Rajasthan  Land Reforms and Resumption of  Jagirs  Act, 1952 (Rajasthan Act 6 of 1 952) for the purpose of that  Act as well as of the Rajasthan Jagir Decisions and  Proceedings (Validation)  Act, 1955 (Rajasthan Act 18 of 1955), and  any other law relating to "Jagirs or Jagirdars." But the Act did not supersede the judgement of the High Court.  The Board of Revenue was therefore incompetent to consider and decide the question  whether the Government may in the absence  of  the previous sanction of the Government refuse to recognize  the adoption  of Jai Singh.  The Act again merely declares  that the Matmi Rules shall be deemed always to have the force  of law  and  shall  be treated as being  "existing  Jagir  law" within the meaning of cl. (d) of S. 2 of the Rajasthan  Land Reforms and Resumption of Jagirs Act 6 of 1952 and Rajasthan Act  18  of  1955.  But the Act does  not  purport  to  give retrospective  operation to the Jaipur Matmi Rules.   It  is futile  then  to contend that the Board  of  Revenue  before determining the question as to the factum of adoption of Jai Singh  was  required to consider whether  the  adoption  was invalid,  because  sanction of the Ruler of Jaipur  was  not previously obtained by Sabhal Singh before taking Jai  Singh in adoption. The  High Court had also held in the writ petition  that  on the  death  of the holder of the Jagir  without  having  any issue  the Jagir will vest in his adopted son in  accordance with the personal law.  That finding is now res judicata and is  binding  upon the parties.  Counsel  for  the  appellant contended  that  the order passed by the High Court  was  an interlocutory order remanding the proceeding to the Board of Revenue, and on that account the decision of the High  Court will not operate as res judicata either before the Board  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

Revenue or in this Court.  We are unable to accept that con- tention.   Against  the  order  of  the  Board  of   Revenue rejecting  the  claim of Jai Singh to be recognized  as  the adopted son of Sabhal Singh a writ petition was moved in the High  Court and a prayer for quashing that order  was  made. The  High  Court dealt with the dispute on merits  and  held that the order of the Board of Revenue holding that  because of the Matmi Rules the adoption of Jai Singh by Sabhal Singh without  the  previous sanction of the Ruler  could  not  be recognized for the purpose of determining the succession  to the  Jagir was erroneous.  The High Court did in making  the final  order  direct  the Tribunal to  decide  the  case  in accordance with the law and in the light of the observations made  in  the  judgment.  but  the  direction  was,  in  our judgment, a surplusage.  The High Court issued a writ in the nature of certiorari 855 quashing  the  order of the Tribunal.   It  was  unnecessary thereafter  to  direct  or advise the Board  of  Revenue  to perform  its statutory duty to decide the dispute  according to  law.  The Board of Revenue had to decide the dispute  in accordance  with  the law declared by the High  Court.   All questions which had been expressly decided by the High Court on  contest  between the parties and other  questions  which must be deemed by necessary implication to have been decided were  res  judicata and could not be  re-opened  before  the Board  of Revenue.  In this appeal it is therefore not  open to  the appellant to contend that the decision of  the  High Court  on  the questions decided in the  writ  petition  was erroneous. It  is unfortunate that the application for  certificate  to appeal  to this Court filed by Sobhag Singh was  erroneously rejected  by the High Court.  But that does not  affect  the binding character of the judgment of the High Court  between the parties.  Unless the decision of the High Court on those questions  was set aside by appropriate proceeding  in  this Court,  the  judgment  must  be  held  binding  between  the parties.   It  is, therefore, not open to the  appellant  to contend,  that the right of Jai Singh as the adopted son  to the  Jagir  had to be decided otherwise than  in  accordance with  the  personal law of Sabhal Singh.  It  is  undisputed that  according  to the personal law  applicable  to  Sabhal Singh, Jai Singh could have been adopted by him. It was somewhat faintly contended by counsel for the  appel- lant  that if the judgment of the High Court is regarded  as binding between the parties, the equal protection clause  of the Constitution would be violated, and on that account also the  judgment must be held invalid.  The argument  needs  no serious  consideration.  It is difficult to  appreciate  the contention that two persons similarly situate were or  could be  differently  -treated by the judgment of  the  Board  of Revenue, because the decision of the High Court operates  as res  judicata  between  the parties in  one  case.   By  the application  of the rule of res judicata the  appellant  was not  singled out for special or prejudicial  treatment.   It may  suffice to observe that all adoptions according to  the personal law in the State of Jaipur made by Jagirdars before the  promulgation of the Matmi Rules are valid, even  if  no sanction  of the Ruler was obtained to the adoptions.   That rule  applies to all adoptions by jagirdars in the State  of Jaipur. The  appeal fails and is dismissed with costs in  favour  of the first respondent. V.P.S.                              Appeal dismissed. 856

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8