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PETITIONER: THAKUR BRIJ RAJ SINGH AND ANOTHER

       Vs.

RESPONDENT: THAKUR LAXMAN SINGH AND ANOTHER

DATE OF JUDGMENT: 08/09/1960

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAS, S.K. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1961 AIR  149            1961 SCR  (1) 616

ACT: Maintainability  of suit-Istimrari estate-Adoption by  widow Suit  challenging factum and validity of  adoption-Enactment providing for confirmation of adoption by Central Government and  conditional  right of suit-Bar of suit-Ajmer  Land  and Revenue Regulation, 1877 (Regulation 11 of 1877) SS. 23, 24, 119.

HEADNOTE: After the death of B, the holder of an istimrari estate,  on September  28,  1947, leaving no male issue,  the  Court  of Wards  took  over the estate and issued a notice  under  the provisions  of the Ajmer Land and Revenue Regulation,  1877, inviting  claims  to  the estate.   While  the  enquiry  was pending,  an  application was filed to the effect  that  the appellant was adopted on February 24, 1948, by the widow  of B and that steps should be taken for the confirmation of the adoption under the third proviso to S. 23 of the Regulation. On  September  10, 1951, the adoption was confirmed  by  the President   of  India.   Thereupon  the   first   respondent instituted  a suit for a declaration, inter alia,  that  the appellant was not adopted as a fact and, in the alternative, the adoption was invalid and illegal.  The appellant in  his defence pleaded that after the confirmation of the  adoption by  the  Central Government, which must be  deemed  to  have considered  and  decided  the factum  and  legality  of  the adoption, such questions could not be challenged in a  civil court  in view of S. 119 read with S. 23 of  the  Regulation and that, therefore, the suit was not maintainable. Held, (S.  K. Das, J., dissenting), (1) that though under S. 23  of  the  Ajmer Land and  Revenue  Regulation,  1877,  an adoption made by a widow is not deemed valid until confirmed by  the Central Government, such confirmation cannot  confer validity  on the adoption if it be otherwise  invalid  under the  general  law  ; and (2) that under  S.  119(1)  of  the Regulation  the only thing done, ordered or decided  by  the Central  Government  which  cannot  be  impeached,  is   the confirmation,  but the decision to grant  confirmation  does not imply an ouster of the jurisdiction of the civil  courts to examine the facts and acts of the parties, which preceded

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the proceedings for confirmation. Accordingly,  the  present suit brought in the  civil  court seeking  relief not with reference to the  confirmation  but for  a  declaration  that the adoption is  invalid,  is  not barred under. SS. 23 and 119 of the Regulation. Per S. K. Das, J.-The confirmation referred to in the  third proviso  to S. 23 of the Regulation necessarily  involves  a determination of two facts, viz., (a) whether the widow  has power to                             617 adopt, and (b) whether she has in fact adopted a son to  the late  istimrardar,  as otherwise, divorced  from  these  two facts,  the confirmation has no meaning and no  intelligible content.   Since  under  s. 119 no suit  lies  to  obtain  a decision  contrary  to the Sin order of confirmation,  on  a proper construction of ss. 23 and 119 of the Regulation, the present suit is barred.

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeal No. 8/1955. Appeal  by special leave from the judgment and decree  dated January  7,  1954,  of the  former  Judicial  Commissioner’s Court, Ajmer, in Civil First Appeal No. 28 of 1953. A.   V. Viswanatha Sastri, J. B. Dadachanji, Rameshwar  Nath and P. L. Vohra, for the appellants. B. Sen and I. N. Shroff, for the respondents. 1960.   September 8. The Judgment of M. Hidayatullah, K.  C. Das Gupta, J. C. Shah and N. Rajagopala Ayyangar, JJ.,  was- delivered  by  Hidayatullah, J. S. K. Das, J.,  delivered  a separate Judgment. HIDAYATULLAH J.-This appeal, with the special leave of  this Court, is against the judgment dated January 7, 1954, of the Judicial Commissioner of Ajmer in Civil First Appeal No.  28 of  1953,  by which the judgment of the  Senior  Subordinate Judge,  Ajmer, dismissing the suit of the  first  respondent was reversed. The facts of the case are as follows: One Thakur  Banspradip Singh  was the Istimrardar of Sawar.  He died  on  September 28,  1947,  leaving  no male issue either  by  birth  or  by adoption.  After his death, the Court of Wards took over the estate,  and  a  notice under s. 24 of the  Ajmer  Land  and Revenue  Regulation,  1877 (Regulation No. II of  1877)  was issued  inviting  claims to the estate.  One  Thakur  Khuman Singh, who was the father of Thakur Laxman Singh (respondent No.  1), Thakur Brij Raj Singh (appellant No. 1) and  Thakur Inder  Singh  of Rudh (respondent No. 2)  preferred  claims. While this enquiry was pending, Thakur Khuman Singh died and Thakur  Laxman  Singh’s name was substituted in  his  place. During’ 618 the   enquiry,   the  Deputy  Commissioner   referred   some interlocutory  matter to the Chief Commissioner, and     the Chief  Commissioner fixed the case for hearing  on  February 25, 1948.  On-that date, an application was     filed to the effect  that  Thakur  Brij Raj Singh  was    her  adopted on February  24, 1948, by Rani Bagheliji, the widow  of  Thakur Banspradip  Singh,  and that the Chief  Commissioner  should move the Governor-General to confirm the adoption under  the third proviso to s. 23 of the Regulation.  From the judgment of the Senior Subordinate Judge, it appears that. the appli- cation  was opposed.  The matter must have been referred  to the  Governor-General,  because on September 10,  1951,  the Secretary  to the Government of India, Ministry of Food  and

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Agriculture,   conveyed  to  the  Chief   Commissioner   the intimation  that  the  President of  India  was  pleased  to confirm the adoption. Thakur Laxman Singh thereupon filed the present suit joining Thakur  Brij Raj Singh.  Rani Bagheliji of Sawar  and  Inder Singh  of  Rudh as defendants.  Two reliefs,  among  others, were claimed.  These were:- "That it may be declared:(a) that Deft No. 1 was not adopted as  a fact by Deft No. 2 and is not her adopted son  and  in the alternative, the adoption of Defendant No. 1 by Deft No. 2 is invalid and illegal; and (b)  that plaintiff is the nearest kin and heir to late  Th. Banspradip Singh." The  learned Subordinate Judge did not frame issues  bearing upon these reliefs, but framed a preliminary issue: "Is the suit barred by ss. 24 and 119 of the Ajmer Land  and Revenue Regulation of 1877 ?" He held that the two sections barred the suit and  dismissed it  with costs.  On appeal to the Judicial  Commissioner  at Ajmer,  the  judgment of the Senior  Subordinate  Judge  was reversed.  The learned Judicial Commissioner was then  moved by  Thakur  Brij Raj Singh and Rani Bagheliji  Singh  for  a certificate  under  Arts.  133  (1)  (a)  and  (c)  of   the Constitution, 619 which he declined because, in his opinion, his judgment  was not  final.   This Court was then moved for  special  leave, which was granted, and the present appeal has been filed. We  are concerned in this appeal with the interpretation  of ss.  23, 24 and 119 of the Regulation in the   light  of the pleadings  and the nature of the claim.  Before we  set  out these  sections,  we wish to examine  generally  some  other provisions of the Regulation bearing upon this matter.   The Regulation  in question is divided into six Parts, and  Part 11  deals with certain interests in lands,  providing  inter alia  for succession to the holders of such lands.  Part  11 is  itself divided into nine sections, and Section  C  deals with  Istimrari estates.  Section 20 defines an "  Istimrari estate  " as one in respect of which an Istimrari sanad  has been  granted  by the Chief Commissioner with  the  previous sanction  of  the  Governor-General-in-Council  before   the passing of the Regulation.  The section has been amended  by the  Adaptation Orders subsequently passed, in a manner  now very familiar An " istimrardar " is defined to mean a person to  whom such sanad has been granted or " any  other  person who  becomes entitled to the istimrari estate in  succession to him as hereinafter provided ". Rules of succession are to be  found  in  ss.  23 and  24.   Section  23  provides  for succession  to the estate where there is male issue, and  s. 24,  when  there  is  no such  male  issue.   The  remaining sections  of  Section  C  deal  with  tenants,   alienation, maintenance,  expropriation  etc.,  with which  we  are  not concerned.   In  this way, the succession  to  an  Istimrari estate is governed by ss. 23 and 24, and any dispute arising in  respect of succession has to be resolved as provided  in those sections. Section 23 reads as follows: "Succession  to  estate where there is made  issue  When  an Istimrardar  dies leaving sons or male issue descended  from him through males only whether by birth or adoption or  when after  the  death of an Istimrardar his widow has  power  to adopt  and adopts a son to him, the istimrari  estate  shall devolve  as nearly as may be according to the custom of  the family of the deceased: 620

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Provided- 1st,  Rule of Primogeniture.-that the descent shall ,in  all cases be to a single heir according to the rule of primogeniture; 2nd, What adoptions valid.-that no adoption "shall be deemed valid unless it is made by a written document deposited with the Collector or the Registrar of the district; 3rd,  Adoption  by widow.-that no adoption made by  a  widow shall  be  deemed  valid  until  confirmed  by  the  Central Government." The  contention  of the rival parties is as  to  the  inter- pretation  which  is to be placed upon  the  third  proviso, taken  with  the  opening words of the  section.   One  side contends  that  after the confirmation of the  adoption,  no dispute  remains which can go to a Civil Court, in  view  of the  bar  contained  in  s. 119, to  which  we  shall  refer presently.   The  other side contends that in  view  of  the opening words of s. 24, a question under s. 23 can be  taken to a Civil Court for adjudication, and that a. 119 does  not bar such a suit.  Sections 24 and 119 may now be quoted: " 24.  Succession to estate when there is no male issue:-Any question  as to the right to succeed to an istimrari  estate arising  in a case not provided for by section 23  shall  be decided by the Central Government, or by such officer as  it may appoint in this behalf : Provided  that  the Central Government, if  it  thinks  fit, instead  of deciding such question itself or appointing  any officer to decide the same, may grant to any person claiming to  succeed  as aforesaid a certificate declaring  that  the matter is one proper to be determined by a Civil Court. The person to whom such certificate is granted may institute a  suit  to  establish  his right  in  any  Court  otherwise competent  under the law for the time being in force to  try the  same, and such Court may, upon the production  of  such certificate before it, entertain such suit. 119.   Except   as  hereinbefore   expressly   provided,-(a) Proceedings under Regulation not to be in- 621 peached--everything done, ordered or decided by the  Central Government, State Government or a Revenue officer under this Regulation, shall be deemed to have been legally and rightly done, ordered or decided; (b)  Limitation  of jurisdiction of Civil Courts.-no   Civil Court shall entertain any suit or application instituted  or presented  with  a view to obtaining any order  or  decision which  the  Central Government, the State  Government  or  a Revenue  Officer is under this Regulation empowered to  make or pronounce." Before  we  consider  these sections,  it  is  necessary  to examine  briefly the nature of the case, because ss. 23  and 24  contemplate different kinds of cases.  The main  reliefs which have been claimed have been set out by us earlier.  It will  be  noticed  that two declaratory  reliefs  have  been claimed.   The first, which is in two parts, is that  Thakur Brij  Raj Singh was not adopted by Rani Baheliji,  and  that the  adoption  was invalid and illegal.  This  is  a  matter which  falls within s. 23 and not s. 24.  The second  relief is  for a declaration that the plaintiff is the nearest  kin and  heir  to  late  Thakur  Banspradip  Singh.   If  Thakur Banspradip  Singh left no male issue either by birth  or  by adoption,  then  the  matter of succession  is  prima  facie governed  by  s.  24.  That section  requires  that  such  a dispute  shall  be decided by the Central Government  or  an officer  appointed  in  this behalf  There  is,  however,  a proviso that the Central Government may, instead of deciding

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such question itself or appointing any officer to decide the same, grant to any person claiming to succeed as  aforesaid, a certificate declaring that the matter is one proper to  be determined  by a Civil Court.  Ex facie, therefore,  if  the matter fell only within s. 24, the plaintiff could not  have filed a suit without a certificate as contemplated.  We  are not  required to express any opinion upon the merits of  any contention that may hereafter be presented to the Courts for their  decision, because the matter is at a stage  prior  to that  when  such pleas can properly be  raised.   The  third relief  originally  claimed a perpetual  injunction  against Thakur Brij Raj Singh who, 622 should  the  question of adoption be decided  against   him, would  have had to fight the original dispute, for  which  a notice  under  s. 24 of the Regulation had  been  issued.  A third  relief  of  injunction was deleted  When  an  amended plaint was filed in the suit.   Section 24  of the Regulation excludes from its  operation cases   falling  within  s.  23.   Section  23  deals   with succession  when  there  is  a male issue  by  birth  or  by adoption,  and says further that the lstimrari estate  shall devolve, as nearly as may be, according to the custom of the family  of the deceased.  To find out the rightful heir,  it may be necessary to examine what the family custom is.  That enquiry  is taken out of s. 24 by the opening words of  that section.   No other forum is indicated for the  solution  of any  dispute  that might arise between rival  claimants,  or where  there  is  a  pretender seeking  to  succeed  to  the deceased  Istimrardar  as  a male issue.   Such  a  dispute, should  one  arise,  would  go before  a  Civil  Court,  the jurisdiction  of  which, as has been said on more  than  one occasion, is not taken away, unless so expressed by the  law or clearly implied by it.  There are no express words in  s. 23  excluding the jurisdiction of the Civil Court,  and  the question  to consider is whether there is anything which  by its clear intendment reaches the same result. According  to  the appellants, the third proviso  to  s.  23 requires  that  a  widow making an  adoption  should  obtain confirmation  from  the Central Government,  and  since  the Central Government in considering the matter has to reach  a decision on two points, namely’ that the widow had the power to  adopt and had, in fact, adopted a son to  the  deceased, they  must  be  taken to have been decided  by  the  Central Government  when the confirmation of the adoption was  made, and in view of the first clause of s. 119, this is something "  done,  ordered or decided by the  Central  Government  ", which  must  " be deemed to have been  legally  and  rightly done,  ordered or decided ". Reference is also made  to  the fact  that when the adoption deed was first brought  to  the notice  of the Chief Commissioner and its  confirmation  was sought, the                             623 opposite parties had opposed the request.  It is, therefore, argued  by the appellants that the confirmation having  been granted, there is no dispute remaining in the case and  none for the Civil Court to decide. In this connection, it is interesting to see ss. 33 and  34, which deal with succession to ’Bhum’, which., means land  in respect  of  which  a  Bhum sanad  may  have  been  granted. Section 33 reads as follows: " Succession to Bhum where there is male issue.When a Bhumia dies leaving sons, or male issue descended from him  through males only, whether by birth or adoption, or when after  the death of a Bhumia his widow has power to adopt and adopts  a

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son  to him, the Bhum shall devolve according to the  custom of the family." Section-34, which corresponds to s. 24, is ipsissima  verba, except  that " Bhum " replaces an " Istimrari estate  ".  If ss.  33  and 34 are read together, it cannot  be  questioned that a matter which falls within s. 33 is excepted from  the operation  of  s.  34, and that a suit is  not  affected  by reason of the opening words of the latter section.  Now,  s. 23 may be contrasted with s. 33. The difference between s. 23 and s. 33 is only this that  in the  former section three conditions are mentioned.  By  the first   condition,   the  law  of  primogeniture   is   made applicable,  by  the  second condition, a  deed  in  writing deposited  with  the  Collector  or  the  Registrar  of  the district is required, and by the third, confirmation of  the adoption,  in  the case of an adoption by a  widow,  by  the Central  Government  has to be obtained.   In  our  opinion, matters within s. 23 can also go before a Civil Court in the same  way  as under s. 33. The last two provisos  to  s.  23 create  two conditions which the widow must fulfill,  before an  adoption by her can ever be considered valid.  An  adop- tion to be valid must comply with the requirements of  Hindu law,  and  the legislature has added two  other  conditions. These  conditions  merely say that no adoption  "  shall  be deemed  valid  " unless they are also  complied  with.   The first condition is that the 80 624 adoption  must be by a written document, which is  deposited with the Collector or the Registrar of the district, and the second  is  that  it  must  be  confirmed  by  the   Central Government.   The deposit of the deed, as  required,  cannot validate  an otherwise invalid adoption.   The  confirmation also does not, by itself, confer validity upon the  adoption if  it be otherwise invalid under the general law, but  only fulfill  a  condition created by the legislature.   If  that lacuna  remains,  the adoption cannot-be  considered  valid, even though it may be valid from every other point of  view. It  is important to notice that the proviso is expressed  in the  negative.  It does not say that on confirmation by  the Central  Government,  the  adoption shall be  deemed  to  be valid.   While the adoption without confirmation  cannot  be deemed   valid,  an  adoption  confirmed  by   the   Central Government  is  still open to attack on grounds  other  than those connected with the confirmation. The  appellants  argue  that the validity  of  the  adoption cannot  be questioned after its confirmation, because of  s. 119  of  the  Regulation.  Section  119  merely  leaves  out anything done, ordered or decided by the Central  Government from  judicial  scrutiny.  The heading of the  section  very clearly brings out the import of the first clause, and it is that  proceedings  under  the  Regulation  are  not  to   be impeached.   The only thing done, ordered or decided is  the confirmation, and though the confirmation cannot be impeach- ed,  anything  that happens prior to the initiation  of  the proceedings  for  confirmation is not protected.   When  the confirmation   proceedings   start,   the   party    seeking confirmation  goes  to the Central Government  with  a  fact accompli,  and  though the Central  Government  may  satisfy itself, the decision to grant confirmation does not imply an ouster  of the jurisdiction of the Civil Courts  to  examine the  facts  and  the acts of  parties,  which  preceded  the proceedings for confirmation.  The legislature in s. 23  has not said this either expressly or by necessary  implication. That  the widow must have the power to adopt and  must,  in,

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fact, adopt a son are matters which may enter into  625 consideration  for  purposes  of  confirmation  ;  but   the validity of the adoption is still a matter, which the  Civil Court can consider, there being no words clear or implied by which   the  validity  of  the  adoption   is   conclusively established.   The  force of the first clause of s.  119  is merely  to  sustain  the  confirmation  as  something  done, ordered or decided by the Central Government, which must  be deemed  to  have been legally and rightly done,  ordered  or decided.  It has no bearing upon the adoption, because  that was  not something done, ordered or decided by  the  Central Government under the Regulation. The second clause of s. 119 which limits the jurisdiction of the  Civil  Court in some respects is also  not  applicable. That  clause  has already been quoted  earlier.   The  first issue  in  the suit does not involve the  obtaining  of  any order or decision which the Central Government is, under the Regulation,  empowered  to make or pronounce.   The  Central Government  has confirmed the adoption.  The suit is not  to obtain confirmation from a Civil Court but to get the  adop- tion  declared  invalid.  The plaintiff in the case  is  not seeking  to obtain an order from the Civil Court, which  the Regulation  empowers  the Central Government to  make.   The Central  Government  is  empowered  to  make  an  order   of confirmation,  but such an order is not being sought in  the suit.   What  is  being  sought is  an  examination  of  the validity of the adoption, and that, as we have already shown above, is not a matter on which the decision of the  Central Government has been made conclusive. In our opinion, therefore, the suit in respect of the  first relief  is within the jurisdiction of the Civil Court.   The second  relief attracts prima facie s. 24, and  must  comply with its conditions.  The suit has thus to go on. The  order of  the Judicial Commissioner, in the circumstances  of  the case, was correct, and we see no reason to differ from it.  In the result, the appeal fails, and will be dismissed with costs. 626 S.   K.  DAS  J.-With  very great regret I have  come  to  a conclusion  different from that of my learned  ,brethren  on the issue whether the suit is barred under the provisions of s.  119  of  the Ajmer Land  and  Revenue  Regulation,  1877 (Regulation no. 11 of 1877), hereinafter referred to as  the Regulation.  My conclusion is that the suit is barred and  I proceed  to  state  shortly the reasons  for  which  I  have arrived at that conclusion. The  relevant  facts have been stated in the  judgment  just pronounced  on behalf of my learned brethren, and it is  not necessary  to  restate  them.   I need  only  add  that  the plaintiff, now respondent no.  1 before us, bad brought  the suit  for a declaration that defendant no. 1 (now  appellant no.  1)  was not adopted as a fact by defendant no.  2  (now appellant no. 2); that the adoption even if established as a fact was invalid and illegal; that respondent no.  1 was the nearest  of  kin and heir to Thakur Banspradip Sing  and  as such  entitled  to succeed to the estate of  Sawar  and  all properties  and assets left by the latter ;  that  appellant no.  1  be  restrained  perpetually  from  interfering   and intermeddling with the estate of Sawar; and that a  receiver be  appointed  of the estate of Sawar and  all  its  assets, moveable  and  immoveable.   The  plaint  was   subsequently amended  and  the  reliefs  for  permanent  injunction   and declaration  that respondent no.  1 was entitled to  succeed to  the estate of Sawar were given up, presumably because  a

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suit for such reliefs would be clearly barred under s. 24 of the Regulation.  What now falls for consideration is whether the  suit, even on the amended plaint, is barred  under  the provisions of s. 119 read with s. 23 of the Regulation. It is necessary to read now some of the relevant  provisions of the Regulation.  Section 20 defines an " istimrari estate " and it is not disputed that the estate of Sawar is such an estate.   Section 21 defines the status of tenants in  an  " istimrari estate ". Section 22 deals with alienation of such estate, and then comes s. 23 which must be read in full: "  S. 23.  Succession to estate where there is  mate  issue: When an Istimrardar dies leaving sons or male                             627 issue descended from him through males only whether by birth or  adoption or when after the death of an  Istimrardar  his widow  has  power  to adopt and adopts a  son  to  him,  the istimrari estate shall devolve as nearly as may be according to the custom of the family of the deceased Provided- 1st,  Rule  of primogeniture-that the descent shall  in  all cases  be  to  a  single  heir  according  to  the  rule  of primogeniture; 2nd,  What adoptions valid-that no adoption shall be  deemed valid unless it is made by a written document deposited with the Collector or the Registrar of the district ; 3rd,  Adoption  by widow-that no adoption made  by  a  widow shall  be  deemed  valid  until  confirmed  by  the  Central Government." Section 24 says: " S. 24.  Succession of estate when there is no male  issue: Any  question  as to the right to succeed  to  an  istimrari estate  arising  in a case not provided for  by  section  23 shall  be  decided  by the Central Government,  or  by  such officer as it may appoint in this behalf. Provided  that  the Central Government, if  it  thinks  fit, instead  of deciding such question itself or appointing  any officer to decide the same, may grant to any person claiming to  succeed  as aforesaid a certificate declaring  that  the matter is one proper to be determined by a Civil Court.  The  person  to  whom  such  certificate  is  granted   may institute  a  suit  to  establish his  right  in  any  Court otherwise  competent  under the law for the  time  being  in force  to  try  the  same, and  such  Court  may,  upon  the production  of  such certificate before it,  entertain  such suit." Skipping over provisions which are not directly relevant for the  consideration of the point before us, I come to s.  119 which is in these terms: " S. 119.  Except as hereinbefore expressly provided- 628 (a)  Proceedings  under  Regulation  not  to  be   impeached :--everything  done,  ordered, or decided  by-  the  Central Government, State Government or a Revenue officer under this Regulation, shall be deemed to have been legally and rightly done or ordered or decided; (b)  Limitation  of  jurisdiction of Civil  Courts-no  Civil Courts shall entertain any suit or application instituted or presented  with  a view to obtaining any order  or  decision which  the  Central Government, the State  Government  or  a Revenue  officer is under this Regulation empowered to  make or pronounce ". The  question  for decision is whether the  suit  is  barred under  the  provisions  of s. 119 read with  s.  23  of  the Regulation.   The  Senior Subordinate Judge who  tried  this

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preliminary issue held that the suit was barred; the learned Judicial   Commissioner  on  appeal  came  to   a   contrary conclusion.  The answer to the question depends on the  true scope  and  effect of the provisions of  the  two  aforesaid sections.  I proceed on the footing that the general rule of law  is that when a legal right and an infringement  thereof are alleged, a cause of action is disclosed and unless there is a bar to the entertainment of a suit, the ordinary  civil courts  are  bound to entertain the claim.   The  bar  maybe express   or-by   necessary  implication.    On   a   proper construction, do ss. 23 and 119 of the Regulation raise such a bar ? In  my view, they do.  The substantive part of s. 23, in  so far  as  it is relevant to the  point  under  consideration, refers  to two facts: (1) the widow has power to adopt,  and (2)  she has in fact adopted a son to the late  istimrardar. On  these two facts being present, s. 23 in its  substantive part says that the estate shall devolve as nearly as may  be according to the custom of the family of the deceased.   The substantive  part  is  followed by three  provisos;  we  are concerned  only with the third proviso, which says  that  no adoption  made by a widow shall be deemed valid  until  con- firmed  by  the  Central  Government.   Such  an  order   of confirmation  was made in the present case.  The proviso  is expressed  in the form of a double negative, and put in  the affirmative form, it means that an                             629 adoption made by a widow shall be valid, for the purpose  of s. 23, when it is confirmed by the Central Government.  From one  point of view, it is an additional condition  and  from another   point  of  view,  it  embraces  within  itself   a determination  of  the  power to adopt  and  the  factum  of adoption;  for obvious reasons, there cannot be an order  of confirmation in vacuum.  There must be an adoption before it can be confirmed.  In my opinion, the third proviso must  be read with and in the context of the substantive provision of s. 23 in order to appreciate the true meaning and content of the  confirmation order.  In confirming the  adoption’,  the Central  Government (previously the  Governor-General)  must consider  the two preliminary facts, (1) whether  the  widow has power to adopt and (2) whether she has in fact adopted a son  to the late istimrardar.  The confirmation referred  to in the third proviso necessarily involves a determination of these two facts.  Divorced from these two facts the  confir- mation  has  no meaning and no  intelligible  content.   The facts of this case also clearly show that on a notice  under s. 24, several claimants put forward their claims: the widow then  adopted appellant no.  1 and an application  was  made for confirmation.  This application was opposed and after an enquiry  made,  the ]President was pleased  to  confirm  the adoption.   Respondent  no.   1 moved the  President  for  a reconsideration of the order confirming the adoption and was then  informed that the President saw no reasons  to  revise the order of confirmation. If  I  am right in my view that the  order  of  confirmation takes  in  the two preliminary facts, then s. 119  makes  it quite clear that no suit lies to obtain a decision  contrary to  the order of confirmation.  Under el. (a) of s. 119  the order of confirmation involving, as it does in my view,  the determination  of the two preliminary facts shall be  deemed to have been legally and rightly done; and under el. (b)  no suit shall lie to challenge that determination.  The words " legally " and " rightly " are important.  The word ’legally’ means  that the order is made validly under law;  rightly  ’ means that it is factually correct and proper.

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630 Therefore,  the critical question is-what does the order  of confirmation  referred  to  in the third proviso  to  s.  23 involve or embrace?  Does it involve a determination of  the two facts-(1) power to adopt and (2) the factum of  adoption ?  If  it does and I  think it does, then s.  119  bars  the present suit. It seems to me, and I say this with great respect, that  any other  view will make the third proviso to s. 23  completely pointless.   Sections  23 and 24 cover the entire  field  of succession to an istimrari estate.  Under s. 24 any question as to the right to succeed to an istimrari estate arising in a  case not provided for by s. 23, shall be decided  by  the Central  Government  subject to the  proviso  thereto.   The power  of the Central Government under s. 24 is  unfettered. If inspite of an order of confirmation of the adoption by  a widow  made under the third proviso to s. 23 a suit lies  to challenge  the adoption, what happens when the  civil  court holds  the adoption to be invalid ? It is conceded that  the confirmation  as such cannot be challenged that  order  must remain.   Does the case then come under s. 23 or s. 24 ?  If it  comes under s. 24, the Central Government again  has  to decide   the  question  of  succession.   If   the   Central Government  does not ignore its own order  of  confirmation, the  result  will  be a stalemate.  Reading ss.  23  and  24 together,  I do not think that it was intended that  inspite of  the order of confirmation of an adoption by the widow  a suit will lie to challenge the adoption the result of  which may be to nullify the effect of the confirmation order. Nor do I think that ss. 33 and 34 relating to Bhum lands are in point.  Section 33 has no proviso like the third  proviso to s. 23, which confirms the adoption by a widow.  The whole matter  is left at large under s. 33, and s. 119 creates  no bar with reference to that section. There  was  some argument before us as to whether  the  suit related to properties not part of the istimrari estate.   No such point appears to have been agitated before the  learned Subordinate  Judge  and so far as I can make  out  from  the amended plaint, the suit                             631 related to the istimrari estate and the properties  thereof, moveable and immoveable. There was also an application to urge a constitutional point to  the  effect that if s. 119 is so construed as to  bar  a suit like the one in the present case, then it is  violative of Art. 14 of the Constitution.  This point was not- pressed before  us  ; therefore, it is unnecessary  to  explain  the nature  and  incidents of these istimrari  estates  and  the reasons for the classification made.  The argument before us proceeded  on  a pure question of construction, and  I  have addressed myself to that question only. For  the  reasons  already given, I hold that  on  a  proper construction  of  ss.  23 and 119  of  the  Regulation,  the present  suit  is barred.  I would, accordingly,  allow  the appeal and dismiss the suit with costs. BY  COURT: In accordance with the majority Judgment  of  the Court, the appeal is dismissed with costs. Appeal dismissed.