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
section 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 section 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 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
2Government 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
3These orders should take effect from the 14th May 1940 ie the date on which the deceased potgidar Babasaheb Bahirojirao Ghorpade died
4The Commissioner section 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 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 aDefendant 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
bBy 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 section 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 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
6b 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 6b of the plaint that the Government Resolution of December 171941 was not ultra vires and that the suit itself was barred under section 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 section 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 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 6b 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 section 4a 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 6b 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 exhibit 100 and the other of 1936 exhibit 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 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 section 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 vs Province of Bombay1 where their Lordships after referring to the earlier decisions in Shekh Sultan Sani vs Shekh Ajmodin 2 and Raghojirao vs Laxmanrao3 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 interruption and revocation by resumption be it temporary or absolute in character
No incident normally applicable 1 2 1892 LR 20 IA 50
3 800 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 6b 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
6b of the plaint are not correct
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 6b 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 section 4 of the Bombay Revenue Jurisdiction Act 1876
The section so far as it is relevant for our purpose says  section 4
Subject to the exceptions hereinafter appearing no Civil Court shall exercise jurisdiction as to any of the following matters aclaims 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 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 vs 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 section 4 of the Bombay Revenue Jurisdiction Act 1876
1 ILR 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


Summary:
These petitions by the holder of Kavalappara Sthanam his wife daughters and soil challenged the constitutional validity of the Madras Marumakkathayam Removal of Doubts Act 1955 passed by the Madras Legislature soon after the Privy Council had declared the properties in possession of the Sthanee to be Sthanam properties in which the members of the tarwad had not interest
Section 2 Of the Act which contained the substantive provision was as follows  2
Notwithstanding any decision of Court any sthanam in respect of which a there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarwad or b the members of the tarwad have been receiving main
tenance from the properties purporting to be sthanam properties as of right or in pursuance of a custom or otherwise or cthere had at any time been a vacancy caused by there being no male member of the tarwad eligible to succeed to the Sthanam 888 shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which he provisions of the Madras Marumakkathayam Act 1932 Mad XXII of 1933 shall apply
 The question for decision was whether the impugned Act infringed the fundamental rights of the petitioners guaranteed by articles 4 191f and 31 of the Constitution
Held per Sinha C J Subba Rao and Shah JJ that the three tests laid down by the Act were contrary to the well settled principles of Marumakkathayam Law with regard to which there could be no scope for doubt and as such not only not germane but extraneous to the object it sought to achieve
They were a device to deprive the sthanam of its properties and vest them in the tarwad and as such directly hit by article 191f and could not be saved by article 195
Assuming that the Sthanam properties were held in janmam right and as such were estates within the meaning of article 31A the impugned Act was immune from challenge
That Article properly construed envisages agrarian reform and provides for the acquisition extinguishment or modification of proprietary and various other kinds of subordinate rights in a tenure called the estate solely for that purpose and must be limited to it
Although it may not be permissible to refer to the statement of objects and reasons of its amendment for purposes of construction it can be referred to for the limited purpose of ascertaining the conditions prevailing at the time and purpose underlying the amendment
Aswini Kumar Ghose vs Arabinda Bose 19531 SCR 1 con sidered
There is no substance in the argument that since the impugned Act seeks to regulate the rights of the Sthanee and the junior members of the tarwad inter se it falls within by cl
2b of article 31A
That clause has to be read with cl
1a of the Article and since the impugned Act does not contemplate any agrarian reform or seek to regulate the rights inter se between landlords and tenants or modify or extinguish any of the rights appertaining janmam right leaving all its characteristics intact it does not come within the purview of article 31A of the Constitution
Sri Ram Ram Narain vs State of Bombay 1959 SUPP
1 SCR 489 and Atma Ram vs State of Punjab 1959 SUPP
1 SCR 748 referred to
Fundamental rights have a transcendental position in the Constitution and before an Article embodying a fundamental right can be construed to exclude another every attempt should be made to harmonize them and not until it is found impossible to do so can one be made to yield to the other
Barring such exceptional cases any law that infringes any of the fundamental rights must be void
889 The word law  in article 311 must mean a valid law and such a law must satisfy two tests 1 that the legislature must be competent to enact it and 2 that it must not infringe any fundamental rights
A law that deprives a citizen of his property must therefore be invalid if it infringes article 191f of the Constitution
Deep Chand vs State Of U P 1959 SUPP
2 SCR 8 and Basheshway Nath vs Commissioner of Income tax Delhi 1959 Supp 1 SCR 528 referred to
Article 31 Of the Constitution since its amendment by the Constitution Fourth Amendment Act 1955 is no longer a selfcontained Article providing for a subject different from that dealt with by article 19 but deals with two different subjects CIS
2 and 2A dealing with acquisition and requisition and cl
1 with deprivation of property by authority of law and can no longer be construed on the analogy of article 2 1 so as to exclude the operation of article 19
The State of West Bengal vs Subodh Gopal Bose 1954 SCR 587 A K Gopalan vs The State of Madras   referred to
State of Bombay vs Bhanji Munji and Any 1955 1 SCR 777 held inapplicable
Nor does article 311 deal with police power
Although such power as understood in America is no arbitrary power divorced from social control and public good there can be no need of importing such a doctrine into the Indian Constitution
The word law  used by article 311 indicates its limitation and refers back to article 19 and any law made under article 311 can be sustained only if the restrictions it imposes are reasonable and in the interest of the general public
The Constitution does not confer on the Indian Parliament the same power which the Parliament of England possesses and while it does contemplate a welfare State that has to be brought about within its frame work of the Constitution itself
The correct approach should therefore be first to ascertain the fundamental right and then to see whether the law infringes that right
If ex facie it does so it has to stand the test of article 195
In certain circumstances however deprivation of fundamental right to property may also amount to a reasonable restriction under the Article
Narendra Kumar vs The Union of India 196O 2 SCR 375 referred to
Individual proprietary rights being ordinarily inviolable unless a clear case is made out for restricting them there must be a harmonious balancing between the fundamental rights declared by article 191 and social control permitted by article 195
It is implicit in the nature of restrictions that no inflexible standard can be laid down and each case must be decided on its own facts
But the restrictions must not be arbitrary and must have a reasonable relation to the object sought to be achieved and shall be in the interest of the general public
890 State of Madras vs V G Rao   Henry Webster vs Peter Cooper   and The Citizens  Savings and Loan Association and Cleaveland Ohio vs Topeka City   referred to
Although the redress of a real and genuine grievance of a section of the community may be in public interest it is impossible to hold that the impugned legislation was either justified or in such public interest
Iswari Prosad vs N R Sen AIR 1952 Cal
273 held in applicable
Marumakkathayam Law is a body of customs and usages that have received judicial recognition and is fundamentally different from Hindu Law being a matriarchal system
The family called tarwad consists of all the descendants of one common ancestor
It consists of a mother and her male and female children and the children of those female children and so on
Only the senior most male member can attain the sthanam which is a position of dignity with specific properties attached to it
When he does so and becomes the Sthanee he ceases to have any interest in the tarwad properties
Occasionally a female member also becomes the Sthanee
Like a Hindu widow or an impartible estate holder the Sthanee has an absolute interest in the income of the Sthanam properties or acquisitions therefrom
A member of the tarwad has no right to maintenance from out of the Sthanam properties nor can such property be converted into tarwad property by the grant of such maintenance by custom or otherwise or intermingling of the Sthanam properties with the tarwad properties by the Sthanee
His position approximates to that of a member separated from a Hindu family and there can be no scope for the application of the doctrine of blending
Like the Sthanee who ceases to have any present proprietary interest in the tarwad the members of the tarwad also can have no present proprietary interest in the sthanam property
They continue to be blood relations with a contingent right of succession to each others  property that is no more than a spies successions
The right of a subsequently born male member of the tarwad to succeed to the Sthanam and its property is judicially recognised
Case law reviewed
Per Imam and Sarkar JJ
The impugned Act is protected by article 31A and is not open to question in the ground that it violates articles 14 191f and 311 Of the Constitution
There is no basis for the contention that article 311a contemplates a law relating to agrarian reform only
The Article makes no mention of any such reform and there can be no doubt that under it a janmam right may be acquired extinguished or modified whether the land held in such right is agricultural or not
It is not permissible to refer to the objects and reasons stated in the Bills by which the Acts amending article 31A of the Constitution were introduced for the construction of the statute and therefore the word law  in article 31A1 cannot be read in relation to sub cl
a only as a law intended to achieve agrarian 891 reform on the basis of the supposed object of the Legislature in enacting article 31A Aswini Kumar Ghose vs Arabinda Bose  referred to
It is not correct to say that the impugned Act does not effect any modification of janmam rights and therefore it does not come within article 31A
When the Article speaks of modification of janmam rights it does not speak of such rights in the abstract but contemplates the modification of such rights held by a person
It would be as much modification of janmam rights if such rights held by one person are directed to be held by a number of persons jointly as when the incidents of such rights are altered
Sri Ram Ram Narain Medhi vs The State of Bombay 1959 Supp 1 SCR 489 and Atma Ram vs State of Punjab 1959 Supp 1 SCR 748 relied on
It is not correct to say that the Legislature in giving the provisions of the impugned Act retrospective operation or in providing that they should prevail notwithstanding any decision of the court to the contrary was acting judicially and not in a legislative capacity and that the Act was on that ground invalid
The rule obtaining in America that legislative action cannot retract on past controversies and reverse decisions of courts and the relevant American decisions can have no application in India
Piare Dusadh s case  referred to