Appeal No 1370 of 1966
Appeal from the Judgment and decree dated February 16 1966 of the Rajasthan High Court in D B Civil Regular First Appeal No 86 of 1958
R K Garg section C Agarwal D P Singh V J Francis and section Chakravarty for the appellants D V Patel Janendra Lal and B R Agarwala for the respondents
The judgment of the Court was delivered by Bhargava J
This appeal arises out of a suit for Partition of properties in the family of one Lalaji Ramchandra who Was the common ancestor of the parties to the suit
He had two sons Govindraoji and Motilal alias Krishnaraoji
The plaintiffs appellants and the non contesting proforma respondents are the descendants of Motilal while the contesting respondents are the descendants of Govindraoji the principal one being Chandrakant Rao who was defendant No 1 in the suit
The appellants sought Partition of all the family properties including eight villages known as the sarola Jagir which were situated in the erstwhile State of Kota
The trial Court dismissed the suit in its entirety holding 83 9 that none of the properties in suit was ancestral property
On appeal by the present appellants the High Court of Rajasthan upheld the dismissal of the suit insofar as the appellants had claimed a share in the eight villages forming the Sarola Jagir while the suit in respect of the other properties was decreed and a preliminary decree passed in respect of those properties
The appellants have come up to this Court in this appeal by certificate granted by the High Court against the order of the High Court refusing to grant partition of the eight villages of the Sarola Jagir
In order to appreciate the point raised in this appeal the history of this Jagir in this family may be recited briefly
Lalaji Ramchandra and his eldest son Govindraoji were awarded this Jagir by means of a Parwana dated 8th April 1838 issued by His Highness Maharao Ramsingh Ruler of Kotah
It appears that the Maharao had contracted debts with the family of Lalaji Ramchandra even in the time of his ancestors and at the relevant time the amount of debt exceeded Rs 9 lakhs
This debt was guaranteed by the British Government
In lieu of this debt this Jagir which was already being enjoyed by Lalaji Ramchandra with certain limitations was given jointly to him and his son Govindraoji stating that it was being conferred in perpetuity and was always to remain from sons to grandsons and was to be free from all taxes which were being exacted up to that time such as Barar and Sewai
At the same time Govind Rao executed a deed of release by which he accepted the adjustment of the amount due from the Maharao against this grant of jagir
These documents thus show that this Jagir was originally granted by Maharao Ramsingh Ruler of Kotah jointly in the names of Lalaji Ram Chandra and his son Govindraoji in lieu of the debt which the Maharao owed to them
Subsequently this property was treated as property of the joint family of Lalaji Ramchandra Motilal the second son of Lalaji Ramchandra was born after this grant and his name was also mutated against the Jagir villages
On the death of Govindraoji the name of his adopted son Ganpat Raoji was brought in while Motilal the uncle managed the property on behalf of the family
Motilal executed a will in respect of his properties including these villages specifically stating that half of this property belonged to Ganpatraoji while half would belong to his adopted son Purshottam Raoji
After the death of Motilal Ganpatraoji became the manager of the property and Purshottam Raoji s name was also entered against this property
On the death of Ganpat Raoji the name of his eldest son Chandrakant Rao was mutated while Purshottam Raoji in the capacity of the eldest member of the family started managing the property
The property thus remained in the family being treated as joint family property and even during the years between 1852 and 1868 when efforts were made by the Maharao of Kotah to dispossess this 8 40 family the British Government had intervened to ensure that the property remained with this family insisting that the Maharao could only resume the Jagir on repayment of the loan in respect of which discharge had been obtained when this Jagir was conferred
The property was thus continued to be treated as joint family property until the death of Purshottam Raoji when a question arose as to the mutation of names of his descendants in his place
Chandrakant Rao desired that his name alone should be shown as the holder of this Jagir and on 22nd October 1937 gave a statement before the Revenue Commissioner claiming that the eldest son in the eldest branch had the right over the jagir according to the custom and usage in Rajputana and consequently mutation in the records should be in his name alone
A report was sent by the Revenue Commissioner and the matter was dealt with by the Maharao of Kotah himself in Mehakma Khas
The order of the Maharao on that report was passed on 22nd January 1938
By this Order a direction was made that this Jagir like all other Jagirs should be given the status of an impartible estate and it should be given proper shape by being liable to render Chakri and Subhchintki to the Ruler
It was further ordered that the Jagir will be governed by the rule of primogeniture so that Chandrakant Rao alone would be held to be the Jagirdar
As a result all these eight villages of the Sarola Jagir came to be shown as the property of Chandrakant Rao alone
The claim of the plaintiff in this suit was that the Jagir having been joint Hindu family property the rights of the plaintiffs who are the successors in interest of Purshottam Raoji cannot be defeated by the order of the Maharao dated 22nd January 1938 and consequently the appellants together with the proforma respondents who are also descendants of Purshottam Raoji are entitled to 12 share whereas the other 12 share only can be claimed by the contesting defendants including Chandrakant Rao who are descendants of Ganpatraoji
Both the trial Court and the High Court have held that after the order of the Maharao of Kota dated 22nd January 1938 this Jagir came to be governed by the rule of primogeniture with the result that Chandrakant Rao alone was the owner of this property while all other members of the family could only claim maintenance out of this property
Consequently the claim of the appellants for a share in these villages on partition was negatived
It is the correctness of this decision that has been challenged before us
Since in this case no effort was made on behalf of the respondents to contest the correctness of the finding given by the High Court that all these villages were joint family property and were treated as such right up to the year 1937 when Purshottam Raoji died we need not enter into the details of the evidence on the basis 841 of which this finding has been recorded
The question that falls for decision is whether the Maharao of Kota by his order dated 22nd January 1938 could validly change the nature of the property
make it impartible and governed by the rule of primogeniture when the property was already joint family property
In deciding this question the crucial point is that the Maharao of Kota was an independent and sovereign Ruler whose orders in his State were law
He had absolute power to make any orders and the Order dated 22nd January 1938 has therefore to be given the force of law which when it was passed could not be challenged as invalid
Counsel for the appellants however urged that all orders passed by an independent and sovereign Ruler do not have the force of law
It is only those orders which purport to lay down a law for the State which cannot be challenged and which would remain in force even after the merger of the Kota State in India and after the enforcement of the Constitution under article 372 of the Constitution
His submission was that when passing the Order dated 22nd January 1938 the Ruler was only exercising executive powers of directing mutation of names and was not exercising any legislative powers
The nature of the Order passed by him however shows that this submission cannot be accepted
No doubt that Order was made on a report which was put up before the Maharaoji for deciding who should be held to be the owner of the Jagir when Purshottam Raoji died
The Order shows that the Maharao took notice of the fact that the Sanad had been granted in the name of Lalaji Ramchandra and his eldest son Govind Rao on executing a deed of release in respect of the debt but it added that when the unpaid debt was changed in the form of a Jagir and no special condition was laid down regarding it and the name of only the eldest son was written in the Sanad  though another brother was present there it has to be held that the Jagir was intended to be given on the same rules on which the other Jagirs were granted The Order then proceeds to take notice of the fact that though the mutation should have been in the name of Chandrakant after the death of Ganpat Rao a practice had developed of entering more than one person as the holders of this Jagir
It appears that in order to give effect to the original intention that this Jagir should be governed by the same rules as all other Jagirs the Maharao proceeded to lay down that this  Jagir should also be impartible and should be held by the eldest member of the family in the eldest branch
The Ruler considered it desirable to make this Order because it was envisaged that it the entire Jagir was distributed amongst all the members of the family then even the name of Thikana  would disappear
It was considered desirable that this Jagir should be governed according to the custom of the States in Rajputana including Kota State under which the eldest son of the senior branch alone was entitled to hold the property
Thereafter the Maharao proceeded to lay down that this Jagir should be L 10 Sup C I NP70 9 84 2 equated with other Jagirs by making a direction that the holders of this Jagir should also render Chakri  and should continue to do Subhchintki 
Having made this direction the Ruler then held that
since this Thikana  was being given proper shape its custom and status must be similar to that of all other Jagirdars in the State
These directions given by the Ruler clearly show that though the proceedings came to him on the basis of a report for directions as to the mutation entry to be made on the death of Purshottam Rao he proceeded to lay down the principles Which were to govern this Jagir thereafter
The Ruler decided that this Jagir should be placed on equality with all other Jagirs in the State and should be governed by the same laws
The Order thus made was clearly an exercise of legislative power by which the Ruler was competent to lay down that though this Jagir had in the past been joint family property it was to be thereafter impartible property governed by the rule of primogeniture and Chandra Kant Rao as the eldest member of the senior branch was to be the sole Jagirdar
This was therefore a case where the Maharao exercised his powers of laying down the law with respect to this one single Jagir
It cannot be said that the Order passed by him was a mere executive order and did not result in exercise of his powers of making the law
In this connection counsel for the appellants relied on the principle laid down by this Court in Rajkumar Narsingh Pratap Singh Deo vs State of Orissa and Another1 to canvass his submission that the Maharao in this case was not exercising legislative powers when he passed the Order dated 22nd January 1938
In that case the effect of a Sanad granted by the Ruler of Dhenkanal State had to be considered and the question arose whether the Sanad could be treated as existing law within the meaning of article 372 of the Constitution
The Court after taking notice of previous decisions drew a distinction between orders made by a Ruler having the force of law and orders which may be of executive nature and held The true legal position is that whenever a dispute arises as to whether an order passed by an absolute monarch represents a legislative act and continues to remain operative by virtue of cl
4b of the Order all relevant factors must be considered before the question is answered the nature of the order the scope and effect of its provisions its general setting and context the method adopted by the Ruler in promulgating legislative as distinguished from executive orders these and other allied matters will have to be examined before the character of the order is judicially determined 1  843 On an application of these principles in that case it was held that the Sanad in question could not be held to be a legislative act
In our opinion even if these principles are applied to the casebefore us it has to be held that the Order of the Maharao dated 22nd January 1938 amounted to exercise of legislative power
As we have already indicated earlier the very mature of the Order which changes the law applicable to the Jagir indicates that it was a legislative act and not a mere executive order
The Maharao did not purport to lay down that the Jagir was already governed by the rule of primogeniture what he did was to apply the rule of primogeniture to this Jagir for future
Such an order could only be made in exercise of his prerogative of laying down the law for the State
The mere fact that it was laid down for one single Jagir and was not a general law applicable to others in the State is immaterial because it does not appear that there were any other similar Jagirs which also required alteration of the law applicable to them
There is also nothing to show that during the period of his rule the Maharao had adopted any special procedure for promulgating the laws in his State
The manner in which the Order was passed indicates that in this State the Maharao considered himself competent to lay down the law at any time he liked
Reliance was also placed on the decision of this Court in State of Gujarat vs Vora Fiddali Badruddin Mithibarwala1 but that case in our opinion has no application at all
In that case the question arose whether an agreement entered into by a Ruler had the force of law
In the case before us there is no such question of any agreement
In dealing with that question the Court relied on the following extract from a decision of the Court in an earlier case of The Bengal Nagpur Cotton Mills Ltd vs The Board of Revenue Madhya Pradesh and Others2  It is plain that an agreement of the Ruler expressed in the shape of a contract cannot be regarded as a law
A law must follow the customary forms of law making and must be expressed as a binding rule of conduct
There is generally an established method for the enactment of laws and the laws when enacted have also a distinct form
It is not every indication of the will of the Ruler however expressed which amounts to a law
 An indication of the will meant to bind as a rule of conduct and enacted with some formality either traditional or specially devised for the occasion results
in a law but not an agreement to which there are two parties one of which is the Ruler
 Emphasis was laid by counsel on the views expressed in this passage that a law must follow the customary forms of law makingand  1  2 ATR 1964 SC 888 844 must be expressed as a binding rule of conduct
In the present case there is nothing to show that in the State of Kota there was any other customary form of law making
The Order of 22nd January 1938 clearly expresses the direction of the Ruler that the Jagir must be governed by the same customary law as other Jagirs as a binding direction which was to govern the future conduct of the holders of this Jagir
The principle relied on therefore does not show that this Order of 22nd January 1938 did not amount to a legislative act on the part of the Maharao
Reference was also made to the decision of this Court in Major Ranjit Singh Rao Phalke vs Smt
Raja Bai Sahiba dead by her legal representatives  Vice Versa1 where the Court said  It is now settled law that every order of the Maharaja cannot be regarded as law particularly those which were in violation of his own laws and again repeated The position today is that every order of the Ruler cannot be regarded as law but only such orders as contain some general rule of conduct and which follow a recognised procedure of law making In that case the particular order of the Ruler which was questioned had been made in contravention of one of the existing laws of the State and it was held that such an order could not be treated as law
In the case before us the position is quite different
There was no law of the Kota State which could be held to be contrary to the Order dated 22nd January 1938
In fact the general law govern ing all Jagirs in the State was the customary law under which the Jagirs were owned by the eldest member of
the senior branch and all that this Order did was to apply the same law to this Jagir also
It is true that no special procedure of law making was adopted by the Maharao when making this Order but that circumstance cannot change the nature of the Order specially when there is nothing to indicate that there was any recognised procedure of law making in the Kota State at that time
In these circumstances we hold that the High Court was quite correct in arriving at the decision that these eight villages  at the time when the suit for partition was instituted were impartible property governed by the law of primogeniture and Chandrakant Rao respondent alone had to be treated as the owner of these villages
It however appears that during the pendency of the suit Jagirs were resumed in Rajasthan including this Jagir which stood in the name of Chandrakant Rao and cash compensation was paid in respect of it
It was urged by counsel for the appellants that 1 Civil Appeals Nos 982 and 983 of 1964 decided on 18th July 1967
845 even if the Jagir was impartible and governed by the rule of primogeniture the right which earlier Vested in the members of the family when it was joint family property would be exercisable when the Jagir was converted into cash and lost its status of impartible estate
It was therefore claimed that after the Jagirs had been converted into cash under the Rajasthan Land Reforms and Resumption of Jagirs Act No VI of 1952 the appellants should have been granted a share in the compensation received by Chandrakant Rao on the basis that this property was earlier joint Hindu family property
In the altemative it was also urged that even if this claim of the plaintiffsappellants is not accepted they would at least be entitled to claim a part of the compensation in lieu of their right of maintenance
These two aspects do not seem to have been considered by the trial Court and even the High Court in one sentence disposed of this matter by saying that since the appellants were only entitled to maintenance they could not claim any share in the compensation money paid under the Rajasthan Act VI of 1952
In dealing with this aspect we are handicapped by the circumstance that the suit was instituted before this Act VI of 1952 was
passed so that there was no specific pleading in this behalf by the plaintiffs appellants
The trial Court therefore ignored this aspect altogether and even the High Court did not take into account the effect of Act VI of 1952 in the two aspects which have been mentioned by us above
Since however this is an appeal against a preliminary decree in the suits and the suit is still to continue in the trial Court we think it appropriate to direct that these questions should be properly raised in the trial Court by amendment of the pleadings in the plaint if necessary and should be considered and decided by that Court
It will be for that court to give a fresh decision whether the appellants are entitled to claim a share in the compensation money received in lieu of these eight villages under Rajasthan Act VI of 1952
The result is that this appeal is dismissed subject to the modification that the case will go back to the trial Court for deciding the question whether the plaintiffsappellants can claim a share in the compensation money or not as indicated above
Costs of this appeal shall abide the decision on this claim of the plaintiffs appellants to a share in the compensation money
RKPs
Appeal dismissed


Summary:
L had two sons G and M L and his elder son G were granted a Jagir by the then Ruler of Kotah jointly in their names in lieu of a debt which the Ruler owed to them
This property was treated as property of the joint family of L
The name of M the second son born after the grant was also mutated against the Jagir villages
The names of the descendants of G and M were from time to time similarly mutated against the Jagir and this Jagir as well as other property of the joint family was managed for some time by the eldest member belonging to either branch of the family
The respondent C was a descendant of G and claimed in 1937 before the Revenue Commissioner that as the eldest son in the eldest branch he alone had the right over the Jagir according to the custom and usage in Rajputana and consequently mutation in the records should be in his name alone
On a report by the Revenue Commissioner the Ruler passed an order on 22nd January 1938 directing that the Jagir like all other Jagirs in the State should be given the status of an impartible estate and should be liable to render Chakri  and Subchintki  to the Ruler
It was further ordered that the Jagir would be governed by the rule of primogeniture so that C alone would be held to be jagirdar
The appellants who were the descendants of M sought partition of all the family properties including the villages in the Jagir
Although the Trial Court dismissed the suit on appeal the High Court granted a decree in respect of other properties but upheld the dismissal of the suit in so far as the appellants had claimed a share in the Jagir
The appellants claimed that the jagir having been joint Hindu property their rights as successors in interest of M could not be defeated by the order of Ruler dated 22nd January 1938 and consequently the appellants were entitled to their proper share in the Jagir
It was contended that all orders passed by an independent and sovereign Ruler do not have the force of law
It is only those orders which purport to lay down a law for the State which cannot be challenged and which would remain in force even after the merger of the Kotah State in India and after the enforcement of the Constitution under article 372 of the Constitution
It was submitted that when passing the Order dated 22nd January 1938 the Ruler was only exercising executive powers of directing mutation of names and was not exercising any legislative powers
HELD Dismissing the appeal
i The High Court was right in holding that the villages in the Jagir at the time when the suit for partition was  instituted were impartible 838 property governed by the law of primogeniture and C alone could be treated as the owner of these villages
iiThe very nature of the Order which changed the law applicable to the Jagir indicated that it was a legislative act and not a mere executive order
The Ruler did not purport to lay down that the Jagir was already governed by the rule of primogeniture what he did was to apply the rule of primogeniture to this Jagir for future
Such an order could only be made in exercise of his prerogative of laying down the law for the State
The mere fact that it was laid down for one single Jagir and was not a general law applicable to others in the State was immaterial because it does not appear that there were any other similar Jagirs which also required alteration of the law applicable to them
L843 B D iiiAlthough no special procedure of law making was adopted by the Ruler when making this Order that circumstance could not change the nature of the Order specially when there was nothing to indicate that there was any recognised procedure of law making in the Kotah State at that time
844 F G Rajkumar Narsingh Pratap Singh Deo vs State of Orissa and Another   referred to
State of Gujarat vs Vora Fiddali Badruddin Mithibarwala  and Major Ranjit Singh Rao Phalke vs Smt
Raja Bai Sahiba dead by her legal representatives and Vice Versa Civil Appeal Nos
982 and 983 of 1964 decided on 18th July 1967  distinguished