Case: Thakore Sobhag Singh Vs. Thakur Jai Singh &amp; Ors

2. Thakur Sabhal Singh - Hereinafter called Sabhal Singh - a jagirdar of Thikana Jhakora in Shekhawati area in the former Indian State of Jaipur applied on November 3,1933 to recognise Jai Singh --the firs respondent in this appeal-as his adopted son for succession to the Thikana. On Ma, 23, 1936, the Ruler of Jaipur in Council ordered that he "saw no reason at the present moment to recognise the adoption advocated by" Sabhal Singh and that-the "alleged adoption of Jai Singh shall in no we, be deemed to be an adoption that will in an, sense bind the Darbar as regards the question of succession". On June 16, 1947, Sabhal Singh preferred another application to the Prime Minister of Jaipur for recognizing the adoption of Jai Singh. The application was sent to the Board of Revenue for enquiry and report under the Jaipur Matmi Rules, 1945. The Board of Revenue reported that in view of the Council Resolution dated May 23, 1936, the application was not maintainable since Sabhal Singh was living at the date of the application. But before this application could be finally disposed of by the Government of the State of Jaipur, Sabhal Singh died and the Prime Minister of Jaipur directed that necessary enquiries be held under the Matmi Rules, and for that purpose the record be sent to the Deputy Commissioner for taking action according to the Rules. The Nazim, Jhujhu held an enquiry and reported that adoption of Jai Singh by Sabhal Singh could not be recognised for under the Council Resolution dated May 23, 1936, the Government had refused to grant any recognition to the adoption. In the view of the Nazim, the adoption of Jai Singh by Sabhal Singh without the previous sanction of the Government was invalid, and evidence of "the factum of adoption" was inadmissible, but that did not debar Jai Singh from setting up a claim to succeed to the Thikana as a descendant in the senior line of the original grantee. An appeal against that order to the Deputy Commissioner was dismissed. A second appeal was then carried to the Board of Revenue. In the view of the Board, on the terms of the Council Resolution dated May 23, 1936, an enquiry into the factum of adoption could not be shut out. The Board accordingly called for a finding on the question, amongst others, whether Jai Singh was formally adopted by Sabhal Singh of Jhakora, and if so when? The Nazim reported that the adoption of Jai Singh stood proved satisfactorily but the adoption could not be recognised because no previous sanction of the Ruler had been obtained. Since however, Jai Singh was the senior-most member of the senior line of descent from the original grantee, he was entitled to succeed to the grant under Rule 14 (l) of the Jaipur Matmi Rules, 1945, in preference to any other claimant. The papers were then submitted to the Collector, Jhunjunu. The Collector confirmed the finding of the Nazim that Jai Singh was adopted by Sabhal Singh, but in the absence of previous sanction of the Ruler the adoption could not be recognized. The Collector did not, however, agree with the Nazim that Jai Singh was the senior member of the senior line of the original grantee. He held that Sobhag Singh - appellant in this appeal - was the senior member of the senior line of the Original grantee and recommended that "the Matmi be granted in favour of Sobhag Singh". The Board of Revenue agreed with the Collector that Jai Singh was not the senior member of the senior fine of the original grantee of the grant in question and that the appellant Sobhag Singh had a preferential claim to the grant of Matmi. The Board without recording a finding on issue of adoption accepted the recommendation of the Collector.

Reasoning: In the opinion of the High Court, the Jagir devolved according to the personal law applicable to the last holder, and the personal law included the custom or usage relating to the particular Jagir; that the custom or usage applicable to the Jagir in question was that the adopted son must be a direct male lineal descendant of the original grantee, and that Nahar Singh was the original grantee of the Jagir in question and Jai Singh as a descendant of Nahar Singh was entitled to take the Jagir if it was proved that the adoption had been made in accordance with the personal law, that the Matmi Rules had no statutory force because it was not proved that assent of the Ruler of Jaipur had been given thereto, and that even assuming that the Rules were "existing Jagir law" they did not govern adoptions made before they were brought into force. An application for certificate to appeal to this Court against the judgment of the High Court under Article 133 of the Constitution was rejected on the ground that the dispute had not been finally decided and a number of issues remained to be decided8.The High Court also held in the writ petition that on the death of the holder l of the Jagir without having any issue the Jagir will vest in his adopted son in act ordnance with the personal law. That finding is now res judicata and is binding upon the parties. Counsel for the appellant contended that the order passed by the High Court was an interlocutory order remanding the proceeding to the Board of Revenue, and on that account the decision of the High Court will not operate as res judicata either before the Board of Revenue or in this Court. We are unable to accept that contention. Against the order of the Board of Revenue rejecting the claim of Jai Singh to be recognized as the adopted son of Sabhal Singh, a writ petition was moved in the High Court and a prayer for quashing that order was made. The High Court dealt with the dispute on merits and held that the order of the Board of Revenue holding that because of the Matmi Rules the adoption of Jai Singh by Sabhal Singh without the previous sanctions of the Ruler could not be recognized for the purpose of determining the succession to the Jagir was erroneous. The High Court did in making the final order direct the Tribunal to decide the case in accordance with the law and in the light of the observations made in the judgment, but the direction was, in our judgment, a surplusage. The High Court issued a writ in the nature of certiorari quashing the order of the Tribunal. It was unnecessary thereafter to direct or advise the Board of Revenue to perform its statutory duty to decide the dispute according to law. The Board of Revenue had to decide the dispute in accordance with the law declared by the High Court. All questions which had been expressly decided by the High Court on contest between the parties and other questions which must be deemed by necessary implication to have been decided were res judicata and could not be reopened before the Board of Revenue. In this appeal it is therefore not open to the appellant to contend that the decision of the High Court on the questions decided in the writ petition was erroneous9.It is unfortunate that the application for certificate to appeal to this Court filed by Sobhag Singh was erroneously rejected by the High Court. But that does not affect the binding character of the judgment of the High Court between the parties. Unless the decision of the High Court on those questions was set aside by appropriate proceeding in this Court, the judgment must be held binding between the parties. It is, therefore, not open to the appellant to contended that the right of Jai Singh as the adopted son to the Jagir had to be decided otherwise than in accordance with the personal law of Sabhal Singh. It is undisputed that according to the personal law applicable to Sabhal Singh, Jai Singh could have been adopted by him10.It was somewhat faintly contented by counsel for the appellant that if the judgment of the High Court is regarded as binding between the parties, the equal protection clause of the Constitution would be violated, and on that account also the judgment must he held invalid. The argument needs no serious consideration. It is difficult to appreciate the contention that two persons similarly situate were or could be differently treated by the judgment of the Board of Revenue, because the decision of the High Court operates as res judicata between the parties in one case. By the application of the rule of res judicata the appellant was not singled out for special or prejudicial treatment. It may suffice to observe that all adoptions according to the personal law in the State of Jaipur made by Jagirdars before the promulgation of the Matmi Rules are valid, even if no sanction of the Ruler was obtained to the adoptions. That rule applies to all adoptions by Japir cars in the State of Jaipur