Case: Jayvant Rao And Others Vs. Chandra Kant Rao And Others

1. This appeal a rises 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 hard two sons. Govindraoji and Motilal alias Krishnaraoji. The plaintiffs/appellants and the non-contesting pro forma 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 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 Jagir2. 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 Raoji 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 Raojis 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 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 accord 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 Kota 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 alone3. The claim of the plaintiffs 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 pro forma respondents who are also descendants of Purshottam Raoji are entitled to 1/2 share, whereas the other 1/2 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.

Reasoning: 8. It, however, appears that, during the tendency 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, 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 alternative, it was also urged that, even if this claim of the plaintiffs/appellants 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 suit 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 decisionwhether the appellants are entitled to claim a share in the compensation money received in lieu of these eight villages under Rajasthan Act VI of 1952In our opinion, even if these principles are applied to the case before 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 nature of the Order, which changes the law applicable to the Jagir, indicates that it was 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.