Case: Thakur Brij Raj Singh And Another Vs. Thakur Laxman Singh And Another

according to the customs of the family of the deceased. The substantive part is followed by three provisos; we are concerned only with the third proviso, which says that no adoption made by a widow shall be deemed valid until confirmed by the Central Government. Such an order of confirmation was made in the present case. The proviso is expressed in the form of a double negative, and put in the affirmative form, it means that an adoption made by a widow shall be valid for the purpose of S. 23, when it is confirmed by the Central Government. From one point of view, it is an additional condition and from another point of view, it embraces within itself a determination of the power to adopt and the factum of adoption; for obvious reasons, there cannot be an order of confirmation in vacuo.There must be an adoption before it can be confirmed. In my opinion, the third proviso must be read with and in the context of the substantive provisions of S. 23 in order to appreciate the true meaning and content of the confirmation order. In confirming the adoption the Central Government (previously the Governor General) must consider the two preliminary facts, (1) whether the widow has power to adopt and (2) whether she has in fact adopted a son to the late istimrardar. The confirmation referred to in the third proviso necessarily involves a determination of these two facts. Divorced from these two facts the confirmation has no meaning and no intelligible content.The facts of this case also clearly show that on a notice under S. 24 several claimants put forward their claims : the widow then adopted appellant No. 1 and an application was made for confirmation. This application was opposed and after an enquiry made, the President was pleased to confirm the adoption. Respondent No. 1 moved the President for a reconsideration of the order confirming the adoption and was then informed that the President saw no reasons to revise the order of confirmation. 20. If I am right in my view that the order of confirmation takes in the two preliminary facts, then S. 119 makes it quite clear that no suit lies to obtain a decision contrary to the order of confirmation. Under cl. (a) of S. 119 the order of confirmation involving as it does in my view, the determination of the two preliminary facts shall be deemed to have been legally and rightly done; and under cl. (b) no suit shall lie to challenge that determination. The words "legally" and "rightly" are important. The word legally means that the order is made validly under law; rightly means that it is factually correct and proper. Therefore, the critical question is - what does the order of confirmation referred to in the third proviso to S. 23 involve or embrace? Does it involve a determination of the two facts - (1) power to adopt and (2) the factum of adoption? If it does and I think it does, then S. 119 bars the present suit. 21. It seems to me, and I say this with great respect, that any other view will make the third proviso to S. 23 completely pointless. Sections 23 and 24 cover the entire field of succession to an istimrari estate. Under S. 24 any question, as to the right to succeed to an istimrari estate arising in a case not provided for by S. 23, shall be decided by the Central Government subject to the proviso thereto. The power of the Central Government under S. 24 is unfettered. If in spite of an order of confirmation of the adoption by a widow made under the third proviso to S. 23 a suit lies to challenge the adoption, what happens when the civil Court holds the adoption to be invalid? It is conceded that the confirmation as such cannot be challenged - that order must remain. Does the case then come under S. 23 or S. 24? If it comes under S. 24, the Central Government again has to decide the question of succession. If the Central Government does not ignore its own order of confirmation, the result, will be a stalemate. Reading Ss. 23 and 24 together, I do not think that it was intended that in spite of the order of confirmation of an adoption by the widow a suit will lie to challenge the adoption the result of which may be to nullify the effect of the confirmation order. 22. Nor do I think that Ss. 33 and 34 relating to Bhum lands are in point. Section 33 has no proviso like the third proviso to S. 23, which confirms the adoption by a widow. The whole matter is left at large under S. 33, and S. 119 creates no bar with reference to that section. 23. There was some argument before us as to whether the suit related to properties not part of the istimrari estate. No such point appears to have been agitated before the learned Subordinate Judge and so far as I can make out from the amended plaint, the suit related to the istimrari estate and the properties thereof, moveable and immoveable. 24. There was also an application to urge a constitutional point to the effect that if S. 119 is so construed as to bar a suit like the one in the present case, then it is violative of Art. 14 of the Constitution. This point was not pressed before us; therefore, it is unnecessary to explain the nature and incidents of these istimrari estates and the reasons for the classification made. The argument before us proceeded on a pure question of construction, and I have addressed myself to that question only. 25. For the reasons already given, I hold that on a proper construction of Ss. 23 and 119 of the Regulation, the present suit is barred. I would accordingly, allow the appeal and dismiss the suit with costs. ORDER 26.

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

Explanation:
0[ds]Section 34, which corresponds to S. 24, is ipsissima verba, except that "Bhum" replaces an "Istimrari estate". If Ss. 33 and 34 are read together it cannot be questioned that a matter which falls within S. 33 is excepted from the operation of S. 34, and that a suit is not affected by reason of the opening words of the latter section. Now, S. 23 may be contrasted with S. 333. In our opinion, therefore the suit in respect of the first relief is within the jurisdiction of the Civil Court. The second relief attracts prima facie S. 24, and must comply with its conditions. The suit has thus to go on. The order of the Judicial Commissioner, in the circumstances of the case, was correct, and we see no reason to differ from it.