Case: Dattajirao bahirojirao Ghorpade Vs. Vijayasinhrao &amp; Another

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.12. Let us now examine the claim of the plaintiff-respondent from the point of view of the custom pleaded in paragraph 6(b) of the plaint. The custom pleaded was the rule of final 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. 6(b) 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 6(b) 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 impartible 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 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.13. Now, as to S. 4 of the Bombay Revenue Jurisdiction Act, 1876. The section, so far as it is relevant for our purpose, says:-"S. 4. - Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters:(a) claims 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 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 Basvantrao v. Tukko Narshinha, ILR (1937) Bom 464 : (AIR 1937 Bom 307), it was pointed out that in the section a distinction has been made between claims and suits. The sub-clause 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, relating to Saranjam lands, and the suit was barred under S. 4 of the Bombay Revenue Jurisdiction Act, 1876.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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 6(b) of the plaint. Let us examine the claim first from the point of view of the Saranjam Rules assuming here that they apply, 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 (Ex. 100) and the other of 1936 (Ex. 101), also treated the whole of Gajendragad and also parts thereof as a Saranjam. Babasaheb in his life time wanted to surrender the grant in his favour to the Saranjamdar, but Government refused to accept such relinquishment.Event 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 partiesseems 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 17-12-1941, 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, 1941, though it took effect retrospectively from the date of death of Babasaheb. We see no reasons why 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 Saranjamif 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 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 Saranjamare 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, relating to Saranjam lands, and the suit was barred under S. 4 of the Bombay Revenue Jurisdiction Act, 1876.