vil Appeals No 2290 N of 1970 and 97 to 99 of 1972
From the Judgment and Order dated 651970 of the Rajas than High Court in First Appeal Nos
134 119 120 121 of 1960
Harish Salve
Mrs AK Verma and DN Mishra for the Appellants
VM Tarkunde VC Mahajan SK Jain S Atreya EK Gupta and CV Subba Rao for the Respondents
The Judgment of the Court was delivered by THAKKAR J
Whether the High Court was justified in reversing the judgment and decree passed by the trial court in favour of the four sons of the Sovereign Ruler of the then State of Jodhpur in the context of an order Passed by the said Ruler and in dismissing the suits instituted by them against the State of Rajasthan for the recovery of various amounts under the said order it the problem in these appeals2 by the unsuccessful plaintiffs
That order issued by the Ruler inter alia provided that an annual sum of Rs30000 be paid to each of his aforesaid sons de scribed as Maharajkumars by way of an annual allowance with retrospective effect from the date of their birth till the date of their attaining majority
On September 13 1946 some two and a half years prior to the merger of the then State of Jodhpur with the United States of Rajasthan which event occurred on April 7 1949 the then Ruler of 1
Order No CB7114 dated 13th September 1946
exhibit 1
By certificate granted under Article 1331a of the Constitution of India
212 the said State passed order exhibit 1 which is the foundation of the suits giving rise to the present group of appeals
The said order in so far as material reads as under His Highness the Maharaja Sahib Bahadur has been pleased to order that with a view to making suitable provision for the maintenance of younger Maharajkumar and Shri Baiji Lal Sahiba i XXXXX ii xxxxx iii An annual allowance of Rs30000 per annum each be granted to all younger Maharajkumars from the dates of their birth for the period of their minority
iv XXXXXX v xxxxxxx
 The amounts claimed by each of the four sons in the suits instituted by them in 1955 was in respect of the claim for annual allowance by way of grant at Rs30000 per annum computed retrospectively from the dates of their birth till the date of the passing of the order that is to say till September 13 1946
The particulars relating to the claim may be tabularized as under Appeal No Name of the Date of Period or Amount before the appellant
Birth which claimed Supreme allowance Rs Court is claimed CA 97N Devisinghji 2091933 2091933 of 1972 to 234550 1391946 13 years  7 days
Dalipsinghji 20101937 20101937 of 1972 to 161050 1391946 8 years 11 months  11days
CA99N Harisinghji 2191929 2191929 of 1972 to 306500  17 years  10 days CA 22901 Himmat 2161925 2161925 of 1970 singhji to 442000 1391946  17 years  10days The following facts have been established 1 Jodhpur was a sovereign State till April 6 1949
2 The said Jodhpur State merged with the other Sovereign States to form the United State of Rajasthan on April 7 1949
3 On April 7 1949 an ordinance was promulgated which provided for the continuance of the laws of the covenanting States which included Jodhpur State in the United State of Rajasthan by virtue of Section 3 which provid ed inter alia that all laws in force in the aforesaid covenanting States immediately before the commencement of the Ordinance shall continue to be in force
4 On April 7 1949 administrators were appointed in respect of different States which had merged in the State of Rajasthan
The High Court allowed the appeals preferred by the State and dismissed the suits instituted by the sons of the late Ruler of Jodhpur on the following reasoning 1 The OrderEx 1 on the basis of which the claim of 214 the plaintiffs was founded was not passed by the then Ruler in his capacity as the Head of the State in the discharge of any legal li ability or obligation subsisting in favour of his four sons
It was an ex gratia payment ordered to be made by him in his personal capacity as the father of the four plaintiffs and not in his capacity as the Sovereign Ruler of the State inasmuch as the order for payment was not supported by any law or custom having the force of law in the then State of Jodhpur
The cash allowance ordered to be paid to the four plaintiffs as per Order exhibit 1 retrospectively for the past period preced ing the date of making of the order was in substance a gift by the ruler in his personal capacity to his children and not an enforce able obligation incurred by the Sovereign Ruler vis a vis the plaintiffs
3 On the aforesaid premises the amount which had not yet been recovered in respect of the past period could not be recovered from the State of Rajasthan as there was no legal and enforceable obligation against the said State
It was contended before the High Court that on taking into account the true nature of the order exhibit 1 it was a law within the meaning of Section 3 ii of Ordinance No 1 of 1949 the order had all the characteristics of law that is to say of a binding rule of conduct of the will of the Sovereign
Since this was a law in the Sovereign State of Jodhpur its operation continued on the formation initially of the United State of Rajasthan and subsequently of the State of Rajasthan
The High Court negatived this contention relying on the law enunciated by this Court in a catena of decisions
2 The view taken in the 1
In this section Law means any Act
Ordinance regula tion rule order or bye law which having been made by a competent Legislature or other competent authority in a Covenanting State
has the force of law in that State
 2    of Gujarat vs Vora Fiddali 
   Narsingh Pratap Singh Deo v State of Orissa    State of Madhya Pradesh vs Bhargavendra Singh
   State of Madhya Pradesh vs Lal Rampal
215 aforesaid decisions in substance was that every order passed by a Sovereign Ruler was not law  inasmuch as it was not necessarily an order passed in the discharge of its legisla tive function
The Ruler of the Sovereign State when he passes an order may be acting in any one of the three spheres namely legislative sphere executive sphere or the judicial sphere though all the three capacities were com bined in him
All the same only that order would constitute law  which was passed in exercise of the powers of the Sovereign in the legislative
sphere and none other
An order passed by the Sovereign in his executive capacity if it is not the result of a legislative process and if it is not calculated or designed to bind as a rule of conduct cannot be characterized as a law 
If the result of the order was no more then to bring about a contract or a grant or a gift it would not constitute law 
The High Court was right in taking the view that having regard to the language of the order itself it appeared to be an executive order conferring a grant or a gift on the plaintiffs appellants
It did not have the characteristics of a legislative measure and did not constitute a law inasmuch as it failed to pass the earlier mentioned tests evolved by this Court in the matter of State of Gujarat vs Vora Fiddali supra and Narsingh Pratap Singh Deo vs State of Orissa supra
It appears to us that in fact the then Ruler of Jodhpur was making a gift in favour of the appellants
It is evident from the fact that the amount ordered to be paid at the rate of Rs30000 per annum is in respect of the preceding years
The four sons had
admittedly already been maintained and brought up with due dignity and decorum prior to the pass ing of the order in question
Since they had already been maintained in a manner and style befitting their status and dignity at the expense of the State there was no question of granting any allowance in respect of the past period during which they had already been maintained
There is therefore no escape from the conclusion that it was by way of a gift albeit
without saying so in so many words
The fact that the expression gift  has not been employed did not detract from this obvious conclusion
It was an amount ordered to be paid by the Ruler to his sons
It was clearly a gift inasmuch as it is not shown that till the date of the order any obligation had been incurred by the grantor in favour of the grantees either under any law or under 1
As per order Ex1 dated 13th September1946 2
As disclosed by the Budget Estimate of the State of Jodhpur recorded at exhibit A 10 to exhibit A 12 216 any custom
It has of course been argued on behalf of the appellants that under the custom  of the State the Ruler was bound to maintain his sons
To say that the Ruler was bound to maintain the appellants is not to say that the Ruler was obliged to make a gift in respect of the past period during which the appellants had already  been maintained
It is not the case of the appellants and there is no evidence to that effect that there was a custom of making any cash allowance every year besides being main tained with due dignity and decorum at the cost of the State exchequer
No such allowance was shown to have been made in the past
What it may be wondered was the occasion for making a retrospective allowance for a period ranging from 8 years to 17 years by the Order exhibit 1 at a point of time just two and a half years before the merger  In fact the circumstances might well give rise to an inference that it was gift  being made in anticipation of the forthcoming merger
Be that as it may at best it is a gift which has nothing to do with any customery obligation of the Ruler to maintain the sons which obligation was already fulfilled by the Ruler in bringing up the appellants with due dignity and decorum at the cost of the State for all the past years till the passing of the said order
A communication addressed by the Chief Minister of the then State of Jodhpur to the Finance Minister prior to the passing of the aforesaid order supports and strengthens the conclusion that the allowance which was ordered to be paid had nothing to do with the past maintenance as will be evident from the fol lowing extract the refrom His Highness has expressed a wish that his two sons Maharaj Kumars Himmat Singhji and Hari Singhji should now be placed on an allow ance to be granted by the State as a prelimi nary to their being given Jagirs later on
His Highness  idea is that if they receive an allowance and it is carefully husbanded they should accumulate some surplus to help them when they become Jagirdars
His Highness considers that an allowance of Rs5000 per mensem in each case is the correct figure
 We are therefore satisfied that the High Court was right in taking the view that the order for paying annual allowance at Rs30000 for the past years was not made in the dis charge of any legal liability or obligation of the Ruler under any law or custom having the force of law
It was merely an ex gratia payment in the nature of a gift which could not dated 2
Ex1 217 be enforced against the State
The relevant part of the order cannot be construed as a law  obtaining in the then State of Jodhpur
And accordingly it cannot be held that the said order continued to prevail as a law  in the State of Rajasthan under the 1949 ordinance or any other law
The order cannot therefore be enforced against the State of Rajasthan treating it as a law  creating a legally enforce able obligation
It was contended that the purpose of granting mainte nance allowance in cash to meet the expenditure from the civil list was to enable the junior members of the Ruler s family to accumulate some surplus to help them when they become jagirdars in due course on attaining majority
It was argued that if the allowance had been granted earlier the allowance could have been accumulated by the beneficiaries and since it was not granted earlier it was granted with retrospective effect
We cannot accede to this submission
In so far as it relates to the period anterior to the pass ing of the order stretching from 8 to 21 years it cannot be said to be an order passed in connection with the mainte nance of the junior members of the Ruler s family for they had already been maintained at the expense of the State exchequer as revealed by the evidence including the budget estimates1 Another argument addressed by counsel for the appellants was that the annual allowance ordered to be paid to the junior members of the family of the Ruler has the same legal status as a Jagir  and that the order granting such an allowance would have the force of law
The submission is sought to be buttressed by two decisions of this Court
In the first instance support is sought from Thakur Amarsinghji vs State of Rajasthan 1955 2 SCRp 303
This Court was concerned with the constitutional validity of Rajasthan Land Reforms and Resumption of Jagirs Act in Thakur Amarsinghji s case
In the course of the discussion the Court had an occasion to consider the import of the expression Jagir 
What emerges from the discussion is that the term Jagir  originally connoted grants made by Rajput Rulers to their clansmen in lieu of services rendered or to be rendered
With passage of time the term Jagir  came to be applied to grants made for religious and charitable purposes and even to non Rajputs
The Court has then proceeded to make it clear that both in its popular sense and in legislative practice the word Jagir  has come to be used as connoting all grants which conferred on the grantees rights in respect of land revenue
And it was in this sense that the term Jagir  was construed under Article 31A of the Constitution of India
What is of significance is that jagir has been 218 associated with the grant in respect of land revenue
Ac cordingly the Court proceeded to observe that considering the world jagir in that sense it must be held that a jagir was meant to cover all grants in which the grantees had only rights in respect of land revenue and were not tillers of the soil
The expression Jagir  would also be applicable to maintenance grants in favour of persons who were not culti vators such as the members of the ruling family
However the grant has been construed in relation to rights in re spect of land revenue recoverable from the actual tillers by intermediaries known as Jagirdars
Testing the grant said to have been made under the order in question by the Ruler of Jodhpur in favour of the appellants it is futile to contend that it is a grant of a jagir  in this sense for no ques tion of alienation of land revenue in favour of the appel lants is involved
All that the Ruler has done is to order that a particular amount of money be paid in respect of a specified period anterior to the date of the order at the specified rate
There is nothing in Thakur Amarsinghji s case which could come to the rescue of the appellants in support of the contention that the allowance in question would constitute a Jagir 
It was argued as a matter of logical corrollary that since it was a jagir the order confering the jagir could be construed as a law  even if it was not a legislative measure promulgated by the Ruler
Since the first premise that the allowance constitutes Jagir  is found to be lacking in substance the submission urged as a corrollary of this premise must also fail to the grounds as a matter of logical necessity
Reliance was also placed on Madhaorao Phalke vs The State of Madhya Bharat 1961 1 SCRp
957 in support of the contention that the grant made in favour of the appel lants would constitute law  and that the State of Rajasthan would therefore be under a legal obligation to make payment of the annual allowance to the appellants as provided in the order
The submission in our opinion is not well founded
Madhaorao s case is not an authority for the proposition that any order passed by the sovereign directing payment of an allowance would constitute law of the State concerned which would have the force of law  in the covenanting States by virtue of the provision made for continuing the existing laws in the covenanting States
The question which had arisen before this Court in Madhaorao s case was as regards the kalambandis  issued by the then Ruler of Gwalior conferring a right to receive Rs21 and annas 8 per month in favour of an Ekkan
It may be mentioned that the Ekkans were a class of horsemen who formed part of the Peshwa s Cavalry
They were foreigners and they brought with them their own horses and accountrements
After making an allowance for the fact that they would have to pay for the 219 maintenance of the horses a provision for payment of Rs21 and annas 8 per month was made by way of Bachat 
Whether the right to receive this amount was a statutory right in other words whether the kalambandis on which the rights were founded constituted rules and regulations having the force of law was the problem posed before the Court in Madhaorao s case
The Court considered the nature of the provisions contained in the documents and came to the con clusion that the documents unambiguously bore the imprint of the character of a statute or regulation having the force of a statute inasmuch as it recognised and conferred i hereditary rights ii it provided for the adoption of a son by a widow of the deceased holder iii it provided for the maintenance of widows out of the funds specially set apart for that purpose iv it provided for the offering of a substitute when the holder became old or otherwise became unfit to render services and v it also provided for protection in respect of the execution of decree against the amount payable under the kalambandi
Having taken into account all these features of the grant the Court proceeded to observe In our opinion having regard to the contents of the two orders and the character of the provisions made by them in such a detailed manner it is difficult to distinguish them from statutes or laws in any event they must be treated as rules or regulations having the force of law  Far from supporting the claim of the appellants the deci sion in Madhaorao s case highlights the fact that the order in question providing for payment of annual allowance for the past years during which the appellants had already been maintained by the State exchequer lacks in the essential ingredients which would justify characterising the order as a rule or a regulation
To put it somewhat crudely divest ing of refinement the order merely directs payment of a specified sum to 220 the appellants which payment has no nexus with any services rendered by them or any customary right enjoyed by them by virtue of their status as junior members of the family but merely by reason of the fact that the appellants were the sons of the Ruler on whom the Ruler intended to confer cash benefit
In our opinion what has been granted under the aforesaid order is nothing but an ex gratia payment or a gift
Lastly it was contended that the junior members of the family of the Ruler were entitled to a maintenance allowance during their minority as per the custom in the State and that they were entitled to grant of Jagir Upon their attain ing majority as per the same custom
The allowance made to the junior members during their minority was treated under a separate head of the State Budget
On these premises it was argued that the order in question must of necessity be construed as legislative in character
We are not impressed by this submission
The allowance made under the order had no nexus with any right to a jagir
All the appellants were minors at the relevant point of time and they had not even become entitled to jagirs
As discussed earlier the expres sion Jagir  is apposite only in the context of alientation of land revenue recoverable from the tillers
What was granted by the Ruler to the appellants had nothing to do with a jagir
Even according to the custom pleaded by the appellants the question of granting a jagir would have arisen only after they had attained majority
The payment which was directed to be made to them was not referable either to a jagir or to any other customary right
It was merely a direction to pay a particular amount computed on a particular basis referable to a past period commencing from the date of their birth
We are therefore fully convinced and firmly of the view that in substance the amount direct ed to be paid as per Order exhibit 1 was nothing else but a gift  by the then Ruler to his sons unrelated to any legal rights of the appellants
And that it did not create any legal obligation enforceable against the State of Rajasthan inasmuch as the order in question was not a law 
There is thus no substance in any of the submissions urged on behalf of the appellants
The view taken by the High Court is unexceptionable and the appeals are devoid of merit
We accordingly dismiss the appeals
There will be no order as to costs
SR Appeals dismissed


Summary:
Jodhpur was a sovereign State till April 6 1949
The said Jodhpur State merged with the other sovereign States to form the United State of Rajasthan on April 7 1949
On April 7 1949 Ordinance No 1 of 1949 was promulgated which provided for the continuance of the laws of the covenenting States which included the Jodhpur State in the United State of Rajasthan by virtue of section 3 which provided inter alia that all laws in force in the aforesaid cove nanting States immediately before the commencement of the Ordinance shall continue to be in force
On September 13 1946 some two and a half years prior to the merger of the then State of Jodhpur with the United States of Rajasthan the then Ruler of Jodhpur passed an order CB7114 exhibit 1 granting an annual allowance of Rs30000 per annum to each of the four Maharajkumars from the dates of their birth and for the period of their minori ty
The amounts claimed by the sons by filing our different suits in 1955 were decreed by the Trial Court
The appeals preferred by the State were allowed by the High Court hold ing that the order dated 13949 granting the annual allow ance was not a law  within the meaning of section 3 of the Ordinance
Hence the appeals by certificate granted under Article 1331a of the Constitution
Dismissing the appeal the Court HELD 11 In substance the amount directed to be paid as per Order exhibit I was nothing else but a gift by the then Ruler to hissons unrelated to any legal rights of the said sons appellants
It did not create any legal obligation enforceable against the State of Rajasthan inasmuch as the order in question was not a law  obtaining in the then State of Jodhpur
And accordingly it cannot be held that the said order 210 continued to prevail as a law  in the State of Rajasthan under the 1949 ordinance or any other law
The order cannot therefore be enforced against the State of Rajasthan treat ing it as a law  creating a legally enforceable obligation
216C D H 217B 12 Having regard to the language of the order itself it appeared to be an executive order conferring a grant or a gift on the appellantsplaintiff
It did not have the characteristics of a legislative measure and did not consti tute a law inasmuch as it failed to pass the tests laid down by the Supreme Court
215C D State of Gujarat vs Vora Fiddali     Narsingh Pratap Singh Deo vs Sate of Orissa AIR    State of Madhya Pradesh vs Bhargavendra Singh     and State of Madhya Pradesh vs Lal Rampal AIR 1966 SC 821    referred to
13 In so far as it relates to the period anterior to the passing of the order stretching from 8 to 21 years the order cannot be said to be an order passed in connection with his maintenance of the junior members of the Ruler s family for they had already been maintained at the expense of the State exchequer as revealed by the evidence includ ing the budget estimates
217D 14 Jagir has been associated with the grant in re spect of land revenue
In Thakur Amar Singhji s case the Supreme Court construed the term jagir in that sense only
Though the expression Jagir would also be applicable to maintenance grants in favour of persons who were not culti vators such as the members of the Ruling family the grant has been construed in relation to rights in respect of land revenue recoverable from the actual tillers by intermedi aries known as Jagirdars
Testing the grunt said to have been made under the order in question by the Ruler of Jodh pur in favour of the appellants it cannot be said that it is a grunt of a Jagir  in this sense for no question of alienation of land revenue in favour of the appellants is involved
All that the Ruler has done is to order that a particular amount of money be paid in respect of a specified period anterior to the date of the order at the specified rate
Further the order in question providing for payment of annual allowance for the past years during which the appel lants had already been maintained by the State exchequer lacks in the essential ingredients which would justify characterising the order as a rule or a regulation
To put it somewhat crudely divesting of refinement the 211 order merely directs payment of a specified sum to the appellants which payment has no nexus with any services rendered by them or any customary right enjoyed by them by virtue of their status as junior members of the family but merely by reason of the fact that the appellants were the sons of the Ruler on whom the Ruler intended to confer cash benefit
217F G 218B D 219H 220B Thakur Amarsinghji vs State of Rajasthan 1955 2 SCR p 303 and Madhaorao Phalke vs The State of Madhya Bharat 1961 1 SCR p 957
distinguished