MarcA 11

SUPREME COURT REPORTS [1964]

RAJKUMAR NARSINGH PRATAP SINGH DEO

STATE OF ORISSA AND ANR.

[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J. c. SHAH,

N. RAJAGOPALA AYYANGAR ANDS. M. SIKRI, JJ.)

Khorposh Allowance-Sanad granted by Ruler of State- Discontinuance of cash allowance by Government of Orissa after merger-Validitv-Sanad, if law or executive act-Constitution of India), Arts. 366(10), 372--0rder 31 of 1948 issued by Government of Orissa, cl. 4{b ).

The Ruler of Dhenkanal State granted a sanad by way. of Khorposh allowance to his younger brother, the appellant giving certain lands and a maintenance allowance, under the customary law of the State. After the merger of that State to the Dominion of India which became effective on January 1, 1948, the Government of Orissa took over the administration of the State and discontinued the cash allowance. The appellant challenged the validity of the order of discontinuance by a suit in the Court of Subordinate Judge. The suit was dismissed. On appeal to this Court it was urged on behalf of the appellant that the sanad issued by an absolute monarch was law, and was continued by Arts. 366(10), 372(1) of the Constitution and cl. 4(b) of the Order 31 of 1948 issued by the Orissa Government in exercise of the power delegated to it by the Central Government under s. 3(2) of the Extra Foreign Jurisdiction Act, 1947.

Held: (i) It was not correct to say that in dealing with a grant m, ade by an absolute monarch any enquiry as to whether the grant was the result of an executive or legislative act was altogether irrelevant. This Court did not lay down any inflexible rule that the weli"I1eCClgnised jurisprudential distinction between legislative and executive acts was wholly irrelevant or inapplicable to such a case.

Ameer-un Nissa Begum v. Mahboob Begum, A.I.R. 1955 S.C. 352, Director of Endowments, Government of Hyderabad .v.

Akram Ali, A.I.R. 1956 S.C. 60, Madhaorao Phalke v. State of Madhya Bharat, [1961] 1 S.C.R. 957, Promode Chandra Deb v.

State of Orissa, [1962] Supp_ 1 S.C.R. 405, Tilkauat Shri Govindlalii Maharaj v. State of Rajasthan, [1964] 1 S.c:R. 561, Maharaja Shree Umaid Mills Ltd. v. Union of India, AI.R. 1963 S.C. 953 and State of Gujarat v. Vora Fiddali Badruddin Nithibarwala. [1964] 6 S.C.R 461, considered.

In such an enquiry it was necessary to consider such relevant factors as the nature of the order, its scope and effect, general setting and context and tire method adopted by the Ruler in promulgating it.

So judged, the Sanad in question had no legislative element in any of its provisions and was a gift pure and simple made in pursuanoe of the custom of the family and customai; r law of the State. The gift therefore, was an executive act of the Ruler and did not amount to law although the Ruler was discharging it his obligation under personal or customary law.

The gift being an executive act of the Ruler could be modifi- 1961 ed or cancelled by an executive act of the successor to the Ruler. R .k --;;- . 1 Th d. t' f t" h 11 ld t ff t th aJ umar .. arsmg' e iscon inuance o ue cas a o'\\oance cou no a ec e Pratap Singh Deo continuance of the customary law under cl. 4(b) of the Order of v. 1948 and Art. 372 of the Constitution. Nor could the plea of pay-State of or;"" and ment of such allowance even after the merger invalidate the Another discontinuance.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 133/

1963. Appeal from the judgment and decree dated November 17, 1960, of the Orissa High Court in First Appeal No. 45 of 1955.

M. C. Setalvad, R. K. Garg, M. K. Ra111a11111rthi, D. P.

Singh and S. C. Agarwala, for the appellant.

S. V. Gupte, Additional Solicitor-General of lndia, Ganapathy Iyer and R. H. Dhebar, for the respondents.

March 9, 1964. The judgment of the Court was delivered by

GAJENDRAGADKAR, C.J.-The principal point of iaw Gajendragad!w, C.J;. which arises in this appeal is whether the Sanad iSsued in favour of the appellant, Rajkumar Narsingh Pratap Singh Deo, by his elder brother, the Ruler of Dhenkanal State, on March 1, 1931, is existing law within the meaning of Art. .372 of the Constitution read with cl. 4(b) of Order No. 31 of 1948 issued by the respondent State of Orissa on January 1, 1948. This question arises in this way. The State of Dhenkanal which was an independent State prior to 1947 merged with the Province of Orissa in pursuance of a Merger Agreement entered into between the Ruler of Dhenkanal and the Dominion of India on December 15. 1947. This Agreement came into force as from January 1, 1948. In consequence of this Agreement the entire administration' of the State of Dhenkanal was taken over by the State of Orissa pursuant to the authority confered on it by the Central Government under s. 3 (2) of the Extra Foreign Jurisdiction Act, 1947 (No. 47 of 1947). After the Sanad in question was issued in favour of the appellant, he was getting a monthly allowance of Rs. 500 /- from the Dhenkanal District Treasury on the authority of a permanent Pay Order which had been issued in his favour by the Ruler of Dhenkanal on the basis of the said Sanad. This payment was discontinued by the respondent from !st of May, 1949 and the several representations made by the appellant to the various authorities of the respondent to reconsider the matter failed.

That is why he filed the present suit on September 26, 1951 in the Court of the subordinate Judge, Dhenkanal, alleging that the .act of discontin.uing te apellant's pension was illegal, and askmg for appropnate rehefs m that behalf. It is from this suit that the present appeal arises.

1964 The appellant's case is that in the family of the appellant,

Rajkumar Naraingh it has been recognied as a ustomary right .of the junior Pratap Singh Deo members of the family to receive adeqnate maintenance cons 10v. d sistently with the status of the family. Indeed, the appellant's '"''

0 A:,;;;:, an allegation is that this custom was recognised in Dhenkanal and . - enforced as customary law in the State. The grants made to GaJendraaadkar, C.J. the members of the Royal Family for their maintenance consisted of lands and cash allowances. These latter were described as Kharposh allowances and they were charged and paid out of the revenue of the former State of Dhenkanal. It was in accordance with this customary law that the Sanad in question was issued by the Ruler of Dhenkanal in favou~ of the appellant. By this Sanad, certain lands were granted to the appellant and a cash allowance of Rs. 500 /- per month was directed to be paid to him for life. The appellant's grieva.nce is that this grant of Rs. 500/- allowance has been discontinued by the respondent and that, according to the appellant, is an illegal and unconstitutional act. In support of his plea that the respondent was bound to continue the payment of the cash allowance, the appellant urged in his suit that the grant was a law within the meaning of Art. 372 and as such, it had to be continued. He also alleged that after the merger of Dhenkanal with Orissa, his right to receive the grant was recognised by the respondent and acted upon; and that is another reason why he claimed an appropriate relief in the form of an injunction against the respondent. Several other pleas were also taken by the appella.nt in support of his claim, but it is not necessary to refer to them for the purpose of the present appeal.

The respondent denied the appellant's claim and urged that having regard to the nature of the grant on which the appellant has rested his case, it was competent to the respondent to discontinue the grant. The grant in question is not law under Art. 372 and just as it could be made by the Ruler in 1931 by an executive act. it can be discontinued by the respondent by a similar executive act since the respondent is the successor of the Ruler. It was also urged by the respondent that the appellant's allegation that the respondent had recognised and agreed to act upon the grant of cash allowance, was not well-founded. Both the learned trial Judge who tried the appellant's case, and the High Court of Orissa before which the appellant took his case in appeal, have, in the main, rejected the appellant's contention, with the result that the appellant's suit has been dismissed. The appellant then applied for and obtained a certificate from the High Court and it is with the certificate thus granted to him that he has come to this Court in appeal.

The first. and the main point which Mt. Setalvad for the appellant has urged before us is that the Sanad on which the appellant's claim is founded, is la.w. At t!ie time when the -

Sanad was granted, the Ruler of Dhenkanal was an absolute 1964 monarch and in him vested full sovereignty; as such absolute Rajkumar N arsingh sovereign, he was endowed with legislative, judicial and exe- Pratap Singh Dea cutive powers and authority and whatever order he passed v. d 1 I h f b 1 h h Stateo/Orissaand amounte to aw. n t e case o an a so ute monarc w ose AnotMr word is literally law, it would be idle, says Mr. Setalvad, to -- distinguish between binding orders issued by him which are Gajendragadkar, C.J. legislative from other binding orders which are executive or administrative. All binding orders issued by such a Ruler are, on the ultimate analysis, law, and the Sanad in question falls under the category of such law.

In support of this argument, Mr. Setalvad has referred us to the definition of the words "existing law" prescribed by Art. 366(10) of the Constitution. Art. 366(10) provides that "existing law" means any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a, law, ordinance, order, bye-law, rule or regulation. Basing himself on this definition, Mr. Setalvad also relies on the provisions of Art. 372(1) which provides for the continuance in force of existing laws; this continuance is, of course, subject to the other provisions of the Constitution and it applies to such laws as were in force in the territory of India immediately before the commencement of the Constitution, until they are altered, repealed or amended by a, competent Legislature or other competent authority.

These provisions are invoked by Mr. Setalvad primarily by virtue of cl. 4(b) of Order 31 of 1948 issued by the respondent on the lst'of January, 1948. It is well-known that by s.3(1) of the Extra Foreign Jurisdiction Act, the Central Government was given very wide powers to exercise extra provincial jurisdiction in such manner as it thought fit. Section 3(2) provided that the Central Government may delegate any such jurisdiction as aforesaid to atiy officer or authority in such manner and to such extent as it thinks fit. The width of the powers conferred on the Central Government can be properly appreciated if the provisions of s. 4 are taken into account.

Under s. 4(1Y: the Central Government was authorised by Jlotification in the Official Gazette to make such orders as may seem to it expedient for the effective exercise of the extraforeign jurisdiction of the Central Government. Section 4(2) indicates oy els. (a) to (d) the categbries of orders which can be passed by the Central Government in exercise of its jurisdiction. The sweep of these powers is very wide and they had to be exercised in the interests of the proper governance of the areas to which the said Act applied. Under s. 3(2), the Central Government had delegated its powers to the Province of Oriss.1 in respect of States which had merged with it, and it was in exercise of its powers as such delegated that Order 3 I of 1948

1964 was issued by the Province of Orissa (now the respondent).

llajkuma-; N,,,.1ngh Cl. 4 of the Order dealt with the question of the laws to be Pmtap Singh Deo applied to the merging areas. Cl. 4(a) referred to the enact-

0•·. d ments specified in the first column of the Schedule annexed to Stale of """'an d d h l" bl . d' d . "t CJ 4(b) Anoth.r the Order an ma e t em app 1ca e as m 1cate m 1 . • . - provided that as respects those matters which are not covered Oa1endrag.•dkar, C.J. by the ena.ctments applied to" the Orissa States under sub-para (a), all Jaws in force in any of the Orissa States prior to the commencement of this Order, whether substantive or procedural and whether based on custom and usage, or statutes, shall, subject to the provisions of this Order, continue to remain in force until altered or amended by an Order under the Extra. Provincial Jurisdiction Act, 1947. There is a proviso to this sub-clause to which it is unnecessary to refer. The argument is that by virtue of cl. 4(b) of this Order, \h•! customary law prevailing in the State of Dhenkanal prior to its merger continued to operate as law in the territory of Dhenkanal and that is how it is operative even now, beca.use it has not been repealed or amended. Since the Sanad issued in favour of the appellant is, according to the appellant's case. law, there would be no authority in the respondent to cancel the payment of cash allowance to the appellant merely by an executive order.

If the respondent wants to terminate the payment of the cash allowance to the appellant, the only way which the respondent can legitimately adopt is to fllake a Jaw in that behalf, or issue an order under cl. 4(b) of the Order. That, broadly stated, is the argument which has been pressed before us by Mr. Setalvad.

We do not think that the basic assumption made by Mr. Setalvad in presenting this argument is sound. It would be noticed that the basic assumption on whiCh the argument is based is that in the case Of an absolute monarch, there can be no distinction between executive and legislative orders. In other words, it is assumed that all orders which are passed by an absolute monarch, are binding, and it is idle to enquire whether they are executive or legislative in character, because no uch distinction can be made in regard to orders issued by an absolute monarch. It is true that the legislative. executive and judicial powers are all vested in an absolute monarch; he is the source or fountain of all these powers and any order made by him would be binding within the territory under his rule without examining the question as to whether it is legislative, executive or judicial; but though all the three powers are vested in the same individual, that does not obliterate the difference in the character of those powers. The jurisprudential distinction between the legislative and the exe<; utive powers still remains, though for practical purposes, an examination about the character of these orders may serve no useful purpose. It is not as if where absolute monarchs have sway in

7 S.C.R.

SUPREME COURT REFORTS 117

their kingdoms, the basic principles of jurisprudenc~ whic~ 1964 distinguish between the ~re~ categories of powers are mapph- Rajkumar Nar<ingh cable. A careful exammatlon of the orders passed by an Pratap Singh Deo absolute monarch would disclose to a jurist whether the power v •. . . . . · d · d" ·, 1 Slateo/Orisaaand exercised m a given case by 1ssumg a giyen or er 1s JU c1~ , Another legislative or executive, and the conclusion reached on Juns- - prudential grounds about the nature of the order and the Gl\iendragadk.,, O.J. source of power on which it is based would nevertheless be true and correct. That, indeed, is the approach which must be adopted in considering the question as to whether the grant in the present case is law within the meaning of Art. 372 as well as cl. 4(b) of Order 31 of 1948; and so, prima facie, it does not seem sound to suggest that in the case of an absolute monarch, that branch of jurisprudence which makes a distinction between three kinds of power is entirely inapplicable.

In dealing with this aspect of the matter, it is hardly necessary to examine and decide what distinguishes a la~ from an executive order. A theoretical or academic discuss10n of this problem would not be necessary for our present purpose, because all that we are considering at this stage is whether or not it would be possible to consider by reference to the character of the order, its provisions, its context and its general setting whether it is a legislative order or an executive order.

Though theorists may not find it easy to define a law as distinguished from executive orders, the main features and characteristics of law are well recognised. Stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by courts. In that sense, a law can be distinguished from a grant, because in the case of a grant, the grantor and the

grantee both agree about the making and the acceptance of the grant; not so in the case of law. Law in the case of an absolute monarch is his. command which has to be obeyed by the citizens whether they agree with it or not. Therefore, we are incline~ to hold tht Mr. Setalvad is not right in making the unqualified content10n that while we are dealing with a grant made by abs?lute monarch, it is irrelevant to enquire

whthe~ the !!1'1nt 1s the result of an executive action, or a legJSlative a.ctlon. On Mr. Setalvad's contention, every act of the absolute monarch and every order passed by him would ome la':" though the act or order may have relation exclu- SJVely to his personal matters and may have no impact on the

pu, hc at lage. h~.t i~ why it is unsound to suggest that the 1unsp.rudent1al d1stinchon between orders which are judicial executive or legislative or in relation to purely individual and personal matters should be treated as irrelevant in dealing with Acts or orders passed even by an absolute monarch.

Realisi_ng the dculty in his way, Mr. Setalvad has

trongly. relied on certain decisions of this Court which accordm11 to him, support the broad point which he has raised before

1964 us. It is, therefore, necessary to examine these dech:ions. The Rajk,.mar Narsinqh first case on which Mr. Setalvad relies is that of Ameer-un- Pratap Singh Deo Nissa Begum v. Mahboob Begum('). In that case, this Court State of~;;,,,. and was called upon to consider the validity of the Firman issued

Anoth.r by the Nizam of Hyderabad on the 19th February, 1939, by

0 . nd odk 0 J which a Special Commission had been constituted to investi-

•J' rag •r, gate and submit a report to him in the case of succession to a deceased Nawab which was transferred to the commission from the file of Darul Quaza Court. Dealing with the question as to whether the Firman in question was passed by the Nizam in exercise of his legislative power or judicial power, Mukherjea, C.J., speaking for the Court, observed that the Nizam was the supreme legislature, the supreme judiciary and the supreme head of the executive and there were no constitutional limitations upon his authority to act in any of these capacities. He also observed that the Firmans were expressions of the sovereign will of the Nizam and they were binding in th•~ same way as any other law; therefore so long as a particular firman held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later Firman at any time that the Nizam willed. It appears, however, that the learned counsel appearing in that case did not argue this point, and so, the question as to whether it would be possible or useful to draw a line of demarcation between a Firman which is legislative and that which is exf:cutive, was neither debated before the Court, nor has it been examined and decided as a general proposition of law.

In The Director of Endowments, Government of Hyderabad v. Akram Ali('), similar observations were repeated by Bose, J., who spoke for the Court on that occasion. Dealing with the Firman issued by the Nizam on the 30th December,

1920, which directed the Department to supervise the Dargah until the rights of the parties were enquired into and decided by the Civil Court, it was observed that the Nizam was an absolute sovereign regarding all domestic matters at the time when the Firman was issued and his word was law. That is how the validity of the Firman was not questioned and it was held that its effect was to deprive' the respondent before the Court and all other claimants of all rights to possession pending enquiry of the case.

In this case again, as in the case of Ameer-un-Nissa Begum('), the point does not appear to have been argued and the observations are, therefore, not intended to lay down a broad or general proposition as contended by Mr. Setalvad.

That takes us to the decision in the case of Madhaorao Phalke v. The State of Madhya Bharat('). On this occasion, this Court was called upon to consider the question as to

(') A.LR. 1955 S.C. 352.

(') A.I.R. 1956 S.C. 60

(') [1961] I S.C.R. 957.

whether the relevant Kalambandis issued by the Ruler of 1964 Gwalior constituted law, 'Or amounted merely to executive Rajkumar NaT<iog~ orders. In the course of the judgment, the passages in the two Pratap Singh Deo cases to which we have just referred were, no doubt, quoted; State of Ori"a and. but the ultimate decision was based not so much on any gene Another ral ground as suggested by Mr. Setalvad, as on the examina . wJ - tion of the character of the Kalambandis themselves and other GaJe 'O!Jrsdkar, O.J relevant factors. If Mr. Setalvad's argument be well-founded and the Kalambandis had to be treated as law on the broad ground that they were orders issued by an abso_lute monarch, it would have been hardly necessary to consider the scope and effect of the Kalambandis, the manner in which they were passed, and the object and effect of their scheme. In fact, these matters were considered in the judgment and it was ultimately held that "having regard to the contents of the two orders and the character of the provisions made by them in such a detail ed manner, it is difficult to distinguish them from statutes or Jaws; in any event, they must be treated as rules or regulations having the force of law". That was the finding made by the High Court ahd the said finding was affirmed by this Court.

Therefore, though this judgment repeated the general observa lions made by this Court on two earlier occasions, it would be noticed that the decision was based not so much on the said observations, as on a' careful examination of the provisions contained in the Kalambandis themselves.

In Promod Chandra Deb v. The State of Orissa('), this Court has held that the grant with which the Court was con cerned, read in the light of Order 31 of the Rules, Regulations and Privileges of Khanjadars and Khorposhdars, was law. Jn discussing the question, Sinha, C.J., has referred to Order 31 of the Rules and Regulations and has observed that like the Kalambandis in the case of Phalke('), the said Rules has the force of law and would be existing law within the meaning of

rt. 372 of the Constitution. This case does not carry the posi t1on any further except that the same general observations are reproduced. In the case of Tilkayat Shri Govindlalji Maharaj v. Stat• of Rajasthan('), while dealing with the question as to whether the Firman issued by the Udaipur Darbar in 1934 was law or not, this Court examined the scheme of the said Firman C'Onsidered its provisions, their scope and effect and came t~ the -onclusion tha~ it was law. Having thus reached the co!\- clus1on that the Frrman, considered as a whole, was Jaw the general observtions on which Mr. Setalvad relies were rpro ..

uced. But as m the case of Phalke('), so in this case, the decis10n. does , not apix:ar. to be based on any general or a priori

CO~Jderation, but It IS J>ased more particularly Oll the exami nation of the scheme of the Firman and its provisions.

((') [1962] Supp. I S.C.R 405, 410.

(') [1961] 1 SC R 957

') [1964) 1 S.C.R 561. . . .

1964 In the case of Maharaja Shree Umaid Mills Ltd. v. Union Rajk,.mar Nars; ng1, of India('), a similar question arose for the decision of this_

Pratap Singh Deo Court in regard to an agreement made on the 17th of April, State of i"a and 1941. The point urged efore the Court was that the said agree-

Anoter ment was law, and rehance was placed on the several general -- observations to which we have alreadv referred. S. K Das. J.

Gajendragadkar, C.J. who spoke for the Court examined the said observations and the context in which they were made and rejected the plea that the said observations were intended to lay down a general proposition that in the case of an absolute monarch, no distinction can be made between his legislative and his executive acts.

In the result, the agreement in question was held to be no more than a contract which was an executive act and not a law within the meaning of Art. 372.

The same view has been recently expressed by Hidayatullah, Shah and Ayyangar, JJ. in the judgments respectively delivered by them in The State of Gujarat v. Vora Fidda/i Badruddin Mithibarwala(').

Therefore, a close examination of the decisions on which Mr. Setalvad relies does not support his argument that this Court has laid down a general proposition about the irrelevance or inapplicability of the well-recognised distinction between legislative and executive acts in regard to the orders issued by absolute monarchs like the Raja of Dhenkanal in the present case. The true legal position is that whenever a dispute arises as to whether an order passed by an absolute monarch represents a legislative act and continues to remain operative by virtue of cl. 4(b) of the Order, all relevant factors must be considered before the question is answered; the nature of the order, the scope and effect of its provisions, its general setting and context, the method adopted by the Ruler in promulgating legislative as distinguished from executive orders, these and other allied matters will have to be examined before the character of the order is judicially determined, and so, we arc satisfied that Mr. Setalvad is not right in placing his argu ment as high as to say that the Sanad issued in favour of the appellant by the Raja of Dhenkanal must be held to be law without considering the nature of the grant contained in it and other relevant circumstances and facts. We must, therefore. proceed to examine these relevant facts. ,..._

Let us then examine the Sanad. It consists of three clauses_ The first clause refers to the practice in the State of Dhenkanal under which the Rajas made grants in hereditary rights to their relatives. and it adds that there exists a patent necessity for making an adequate provision for the .grantee.

<'> A.LR. 1963 s_c. 953.

(') [19&)] 6 S.C.R. 461.

the appellant, to enable him to maintain his dignity as a Raj- 1964 knmar of the Stat~ and to maintain imsel~. his famy. his .eirs Rajkumar Naraingh and descendants m a manner befittmg his and therr pos1tton. Pratap Si09h Deo

Tht is w.hY out o~ love and affection for him, the grantor made BtaJe 0";;.,. ana the khan1a grant m the shape of a monthly cash allowance of >/Another Rs. 500 Ifor his life time and also an assignment of land . - measuring 6942-71-5 acres specified in the Schedule attached Gaienrlragadkar, C.J. to the Sanad. The grant of the said land has been made heritable and the grantee has been authorised to enjoy it from generation to generation. The extent of the grant is also clarified by additional clauses which it is unnecessary to mention.

Clause 2 of the Sanad imposes the condition of loyalty on the grantee and bis heirs; and by cl. 3 the State undertook to bear all costs for reclaiming the land covered by the grant with a view to render it fit for cultivation.

Now, it is plain that there is no legislative element in any of the provisions of this grant. It does not contain any command which has to be obeyed by the citizens of the State; it is a gift pure and simple made by the Ruler in recognition of the fact that under the custom of the family and the customary law of the State, he was bound to maintain his junior brother.

The grant, therefore, .represents purely an executive act on the part of the Ruler intended to discharge his obligations to his junior brother under the personal law of the family and the customary law of the State. It would, we think be idle to suggest that such a grant amounts to law. It is true that partly it is based on the requirement of personal and customary law; but no a, ction taken by the Ruler in discharging his obligations under such personal or customary law can be assimilated to an order issued by him in exercise of his legislative authority.

Therefore, we have no diflj.culty in holding that the Sanad in question is a purely executive dCt and cannot be regarded as la.w as contended by Mr. Setalvad.

It was then faintly argued by Mr. Setalvad that the obligation undertaken by the Ruler was recognised by the respondent, and so, it could not lie cancelled by the respondent merely by an executive act. In our opinion, there is no substance in this argnment. If the act by which the grant was made was a purely executive act on the part of the then Ruler of the State of Dhenkanal, we do not see how it can be legitimatelv urged that the terms of the grant cannot either be modified, or the grant cannot be cancelled altogether by ail executive act of the respondent which is the successor of the Ruler. As we have just indicated, the customary law which required the

Rler to provide maintenance for his junior brother, can be said to have been continued by cl. 4(b) of the Order of 1948 and t. 372 of the onstit.ution; ut to say that the customary law m that behalf 1s continned 1s very different from saying that the amount of maintenance fixed by the grant cannot be

1964 varied or altered. Wha.t the respondent has done is to stop the

Rojkamar s .. rsingh payment of cash alloance of Rs. 500/- per month _and that

Pratap Singh Dro does not mean alteration of the Jaw. It 1s common ground that

8 . the grant of the land covered by the Sanad has not been distatc ~";,~::: "'"1 turbed, and so, all that the impugned action of the respondent - amounts to is to reduce the total maintenance allowance grant- Gajendrngadkar. C.J. ed to the appellant by the Ruler in 1931. It is plain that though the customary law requiring provision to be made for the maintenance of the appellant is in force, the respondent has the right to determine what would be adequate and appropriate maintenance, and this part of the right is purely executive in character. It would, we think, be unreasonable. to suggest that though the Sanad is not law, the amount granted by the Sanad cannot be modified by an executive act of the respondent, and that the respondent must file a suit for that purpose. All that the customary law requires is the making of a suitable provision for the maintenance of the junior members of the family. But wha.t is adequate provision in that behalf will always be a question of fact which has to be determined in the light of several relevant factors; the number of persons entitled to receive maintenance, the requirements of the status of the members of the family, the total income derived by the family, and other commitments, may all have to be weighed in deciding the quantum of maintenance which should be awarded to anyone of the junior members. In fact, both the Courts below have agreed in holding that having regard to the relevant fact~. the grant of the land made by the Sanad would be adequate and appropriate for the maintenance of the appellant. ·

But apart from this aspect of the matter, we do not see how the appellant can seriously quarrel with the validity of the respondent's action in discontinuing the payment of cash allowance to him. The plea tha.t payment was made for some time after the merger can hardly avail the appellant in contending that the discontinuance is invalid. In the very nature of things, the respondent could not have decided whether the cash allowance should be continued to the appellant or not without examining the merits of the case, and since a large number of such cases had to be examined after merger, if the payment continued to be made in the meantime, that cannot give any valid ground to the appellant to challenge the legality of the ultimate decision of the respondent to diswntinue the payment of the said allowance.

The result is, we confirm the decision of the High Court, though on somewhat different grounds. The appeal according' ly fails and is dismissed. There would be no order as to costs.

Appeal dismissed