Case ID: 917

Judgment:
Appeal No. 37 of 1960. Appeal from the judgment and decree dated November 12	 1952	 of the Bombay High Court in First Appeal No. 492 of 1949	 arising out of the judgment and decree dated the 20th April	 1949	 of the First Class Sub Judge	 Dharwar	 in Special Civil Suit No. 16 of 1943. section N. Andley	 J. B. Dadachanji	 Rameshwar Nath and P. L. Vohra	 for the appellant. Naunit Lal	 for respondent No. 1. B. R. L. Iyengar and T. M. Sen	 for respondent No. 2. 1960. April 29. The Judgment of the Court was delivered by section K. DAS	 J. This is an appeal on a certificate given by the High Court of Bombay	 from the judgment and decree of the said High Court dated 791 November 12	 1952	 by which it reversed the decision of the Civil Judge	 First Class	 at Dharwar dated 		 April 20	 1949	 in Special Civil Suit No. 16 of 1943. The material facts are these. Gajendragad in Taluk Ron in the district of Dharwar is a Saranjam estate known as the Gajendragad Saranjam bearing number 91 in the Saranjam list maintained by Government. Within that estate lay village Dindur and survey field No. 302 of Unachgeri	 which are the properties in suit. One Bhujangarao Daulatrao Ghorpade was the holder of the Saranjam estate at the relevant time. In 1932 the Saranjam was resumed and re granted to the said Bhunjangarao by Resolution No. 8969 dated June 7	 1932	 of the Government of Bombay in the Political Department. This Resolution said: " The Governor in Council is pleased to direct that the Gajendragad Saranjam should be formally resumed and re granted to Bhujangarao Daulatrao Ghorpade	 the eldest son of the deceased Saranjamdar Daulatrao Bhujangarao Ghorpade	 and that it should be entered in his sole name in the accounts of the Collector of Dharwar with effect from the date of the death of the last holder. The Collector should take steps to place the Saranjamdar in possession of the villages of the Saranjam estate which were in possession of the deceased Saranjamdar. The Governor in Council agrees with the Commissioner	 Southern Division	 that the assignments held by the Bhaubands as potgi holders should be continued to them as at present. " One of the younger branches of the Ghorpade family was Babasaheb Bahirojirao Ghorpade	 to be referred to hereinafter as Babasaheb. He held by way of maintenance (as potgi holder) the aforesaid village of Dindur and survey field No. 302 of Unachgeri. He had an undivided brother called Dattojirao	 who was defendant No. 2 in the suit and is appellant before us. In this judgment we shall call him the appellant. Babasaheb died on May 14	 1940. On his death he left a widow named Abayabai and the appellant	 his undivided brother. On July 10	 1941	 Abayabai adopted Vijayasinhrao as a	 son to her deceased husband. Vijayasinha was the plaintiff who brought the suit ' 792 and is now the principal respondent before us. It will be convenient if we call him the plaintiff respondent	 and state here that he was the natural son of Bhujaugarao 's younger brother	 another Dattajirao to be distinguished from the appellant who also bears the same name. On Babasaheb 's death Abayabai asked for sanction of Government to her taking a boy in adoption; this application was opposed by the appellant. On December 17	 1941	 the Government of Bombay passed a Resolution in the following terms: " 1. Government is pleased to direct that the Saranjam potgi holding of village Dindur and Survey No. 302 of Unacbgeri	 which were assigned for maintenance to the deceased potgidar	 Mr. Babasaheb Bahirajirao Ghorpade	 at the time of the re grant of the Gajendragad Saranjam	 should be continued to his undivided brother	 Mr. Dattajirao Babirojirao Ghorpade. 2.Government is also pleased to direct	 under Rule 7 of the Saranjam Rules	 that the new potgidar	 Mr. Dattajirao Bahirojirao Gborpade	 should give to Bai Abaibai	 widow of the deceased Potgidar	 Mr. Babasaheb Bahirojirao Ghorpade	 an annual maintenance allowance of Rs. 300 for her life. 3.These orders should take effect from the 14th May	 1940	 i.e.	 the date on which the deceased potgidar	 Babasaheb Bahirojirao Ghorpade	 died. 4.The Commissioner section D. should be requested to communicate these orders to Bai Abaibai	 widow of the late potgidar	 with reference to her petitions addressed to him and also to the Rayats of Dindur	 with reference to their petition	 dated the 12th May	 1941. The orders should also be communicated to the present Saranjamdar of Gajendragad. " On February 8	 1943	 the plaintiff respondent brought the suit against the Province of Bombay as defendant No. 1	 the appellant as defendant No. 2 and Abayabai as defendant No. 3. The suit was contested by the Province of Bombay (now substituted by the State of Bombay) and the appellant. Abayabai supported the case of the plaintiff respondent	 but she died during. the Pendency of the suit. 793 The claim of the plaintiff respondent was that on his adoption the estate of his deceased adoptive father devolved on him by the	 rule of lineal primogeniture in preference to the appellant. The main plea of the plaintiff respondent was stated in paragraph 6 of the plaint	 which read as follows: " 6. The Government Resolution passed by defendant No. 1 in 1941 is ultra vires and null and void for the following reasons: (a)Defendant No. 1 made a re grant of the Saranjam estate to Shrimant Sardar Bhujaragarao Ghorpade in 1932 and therein the suit properties were	 according to defendant No. 1	 continued to the adoptive father of plaintiff Under the Saranjam rules no occasion has arisen for interference by Government at this stage. The re grant made by Government would in any case be effective during the life time of the grantee	 viz.	 Shrimant Sardar Bhujangarao Ghorpade. Further the said Shrimant Sardar Bhujangarao Ghorpade was not consulted by defendant No. 1 before the said Government Resolution. (b)By the custom of the family to which the family belongs	 the estate of a deceased person devolves by the rule of lineal primogeniture. Hence after the death of plaintiff 's adoptive father and the adoption of plaintiff himself	 all the estate vested in plaintiff 's adoptive father has devolved on the plaintiff in preference to defendant No. 2. The action of defendant No. 1 in ignoring this rule of succession prevalent in the family is ultra vires and null and void. " On the aforesaid pleas	 the plaintiff respondent prayed for (a) recovery of possession of properties in suit from the appellant	 (b) mesne profits	 and (c) costs. On behalf of the Province of Bombay several pleas by way of defence were taken. The main pleas were (1) assuming that the plaintiff respondent was validly adopted	 he had nevertheless no legal claim to the properties in suit because under the relevant Saranjam Rules the interest of Babasabeb came to an end on his death and was not of such a nature as would 794 devolve on the plaintiff respondent despite the Government Resolution dated December 17	 1941	 (2) that the alleged family custom did not apply to maintenance grants	 and (3) that	 in any event	 the suit was barred under section 4 of the Bombay Revenue Jurisdiction Act	 1876. The appellant besides supporting the aforesaid pleas raised the additional pleas that there was no valid adoption of the plaintiff respondent and Abayabai was expressly prohibited by her husband from adopting a son. On these pleadings several issues were framed. The suit was originally dismissed on a preliminary ground	 namely	 that the plaint did not disclose any cause of action. The learned Civil Judge apparently took the view that the properties in suit were subject to the Saranjam Rules and on examining those rules	 he came to the conclusion that as the plaintiff respondent on his adoption became a nephew of the appellant and in that sense was claiming maintenance from the latter	 it was necessary for him to have alleged the necessary circumstances under which certain members of a Saranjam Family are entitled to claim maintenance under Rule 7 of the said Rules and as those circumstances were not pleaded by the plaintiff respondent	 the plaint disclosed no cause of action. The High Court rightly pointed out that the plaintiff respondent did not make a claim for maintenance under Rule 7 of the Saranjam Rules	 but claimed that the properties in suit devolved on him by reason of his adoption and the custom of lineal primogeniture. Therefore	 the High Court held that the claim of the plaintiff respondent was much more fundamental than a mere claim of maintenance	 and the learned Civil Judge had misdirected himself as to the true scope of the suit. Accordingly	 the High Court set aside the decree of dismissal and directed the suit to be tried on all the issues. After this direction the learned Civil Judge tried all the issues. Issues 1 and 2 related to the question of adoption	 namely	 (1) whether the ceremony of adoption was properly proved and (2) whether Babasaheb during his life time had prohibited his wife from making an adoption. On the first issue the learned 795 Civil Judge found in favour of the plaintiff respondent and on the second against him. The High Court affirmed the finding on the first issue	 and on a careful and detailed examination of the evidence held on the second issue that the learned Civil Judge was wrong in holding that the adoption was invalid by reason of the alleged prohibition of Babasaheb. The High Court held that there was no such prohibition	 and the adoption was valid. 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 go now to a consideration of those issues which are material for a decision of this appeal. They are: Issue No. 3 Does plaintiff prove his title to the suit property ? Issue No. 4 Is it proved that the Government Resolution (D. G.) No. 8969 of December 17	 1941	 is ultra vires and null and void as alleged in the plaint ? Issue No. 5 Is the suit barred under section 4 of the Revenue Jurisdiction Act ? Issue No. 7 Is the alleged custom set up in para. 6(b) of the plaint proved ? On all these issues the learned Civil Judge found against the plaintiff respondent	 and held that the latter was not entitled to recover possession Of the properties in suit	 that he had failed to prove the custom pleaded in paragraph 6(b) of the plaint	 that the Government Resolution of December 17	1941	 was not ultra vires	 and that the suit itself was barred under section 4 of the Bombay Revenue Jurisdiction Act	 1876. The High Court reversed the decision of the learned Civil Judge on all the aforesaid issues	 and held that as the properties in suit were given to the junior branch of Babasaheb for its maintenance and were impartible and governed by the rule of lineal primogeniture	 they devolved on the appellant after Babasaheb 's death ; but as soon as Babasaheb 's widow 796 made a valid adoption	 the properties were divested and inasmuch as the plaintiff respondent became the eldest member of the senior branch of Babasaheb 's family	 he became entitled thereto as a result of the combined effect of the family custom and ordinary Hindu law. The High Court said that looked at from this point of view	 no question arose of the validity of the Government Resolution dated December 17	 1941	 and no relief for possession having been claimed against Government	 the suit was not barred under section 4 of the Bombay Revenue Jurisdiction Act	 1876. On behalf of the appellant	 it has been very strenuously argued that the High Court was in error in holding that the properties in suit which are part of a Saranjam	 vested in the appellant on 'the death of Babasaheb and were then divested on the adoption of the plaintiff respondent; it is contended that such a conclusion is inconsistent with the nature of a Saranjam tenure and furthermore	 the properties in suit having vested in the appellant by reason of the re grant dated December 17	 1941	 they could not be divested by the adoption made on July 10	 1941. Nor does it follow	 it is contended	 from the custom pleaded in paragraph 6(b) of the plaint	 apart from the question whether even that custom has been proved or not	 that the properties in suit having once vested in the appellant will be divested on a valid adoption. Secondly	 it has been contended that the High Court was also in error in holding that there was no claim against Government within the meaning of the fourth sub cl. of section 4(a) of the Bombay Revenue Jurisdiction Act	 1876. The argument before us has been that there was such a claim	 and no Civil Court had jurisdiction to determine it. 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 Saraniam Rules assuming here that they apply	 797 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 (exhibit 100) and the other of 1936 (exhibit 101)	 also treated the whole of Gajendragad and also parts thereof as a Saranjam. Babasaheb in his lifetime wanted to surrender the grant in his favour to the Saranjamdar	 but Government refused to accept such relinquishment. Even 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 parties concerned. What is a Saranjam ? The word " Saranjam literally means apparatus	 provisions or materials. In his Glossary	 Wilson defines Saranjam as temporary assignments of revenue from villages or lands for support of troops or for personal service usually for the lifetime of the grantees. Dr. G. D. Patel in his book on " The Indian Land Problem and Legislation has said: " According to the account given by Col. Etheridge in his preface to the Saranjam List	 it was the practice of the former Governments	 both the Muslims and the Marathas	 to maintain a species of feudal aristocracy for the State purposes by temporary assignments of revenue either for the support of the troops or personal service	 the maintenance of official dignity or for other specific reasons. The holders of such lands were entrusted at the time with the necessary powers for enabling them to collect and appropriate the revenue and to administer the general management of the lands. Under the Muslim rule	 such holdings were called Jahagirs and under the Maratha rule	 they came to be called Saranjam. However	 this distinction between these tenures ceased to exist during the Maratha period. At the time of the introduction of the British rule	 104 798 the difference between a Jahagir and a Saranjam ceased to exist	 to all intents and purposes. The two terms became convertible and all such grants came to be known by the general term "saranjam". Apart from the Saranjam grants	 which were found only in the Deccan	 there were other grants of a political nature found scattered over the whole State. Their origins did not materially differ from those of the Saranjam with the result that the British treated them under the same rules called the Saranjam Rules ". The Saranjam Rules were made in exercise of the powers referred to in r. 10 of Schedule B of Act Xi of 1852 and of the second sub cl. to el. 3 of section 2 of Bombay Act VII of 1863. We may here reproduce some of these Rules: " Rule I Saranjams shall be ordinarily continued in accordance with the decision already passed or which may hereafter be passed by Provincial Government in each case. Rule 2 A Saranjam which has been decided to be hereditarily continuable shall ordinarily descend to the eldest male representative in the order of primogeniture	 of the senior branch of the family descended from the First British grantee or any of his brothers who were undivided in interest. But Provincial Government reserve to themselves the rights for sufficient reasons to direct the continuance of the Saranjam to any other member of the said family	 or as an act of grace	 to a person adopted into the same family with the sanction of Provincial Government. When a saranjam is thus continued to an adopted son	 he shall be liable to pay to Provincial Government a nazarana not exceeding one year 's value of the saranjam	 and it shall be levied from him in such instalments as Provincial Government may in each case direct. Rule 5 Every saranjam shall be held as a life estate. It shall be formally resumed on the death of the holder	 and in cases in which it is capable of further continuance	 it shall be made over to the next holder as a	 fresh grant from Provincial 799 Government	 unencumbered by any debts or charges save such as may be specially imposed by Provincial Government itself Rule 7 Every saranjamdar shall be responsible for making a suitable provision for the maintenance of the widow or widows of the preceding saranjamdar	 his own brothers	 or any other member of his family who	 having a valid claim arising from infancy	 mental or physical deformity rendering such member incapable of earning a livelihood	 may be deemed deserving of support at his hands. When this obligation is not fulfilled by any saranjamdar	 Provincial Government may direct him to make suitable provision for such person and may fix the amount	 which he shall pay in each instance; provided that no one who has independent means of his own	 or is	 in the opinion of Provincial Government	 otherwise sufficiently provided for	 shall be entitled to maintenance from the Saranjamdar. Rule 8 Every order passed by Provincial Government under the above rule for the grant of maintenance by a Saranjamdar shall hold good ' during his life only The true nature of a Saranjam tenure was considered by a Full Bench of the Bombay High Court in Daulatrao Malojirao vs Province of Bombay(1) where their Lordships after referring to the earlier decisions in Shekh Sultan Sani vs Shekh Ajmodin (2) and Raghojirao vs Laxmanrao(3) observed: " An examination of the authorities	 makes it clear that the whole structure of a Saranjam tenure is founded in the sovereign right	 which can only change by conquest or by treaty. So founded	 jagirs and Saranjams	 with the feudal incidents connected with them	 are granted or withheld at the will and pleasure of the sovereign power	 and	 if granted	 the fixity of tenure is always subject to interruption and revocation by resumption	 be it temporary or absolute in character. No incident normally applicable (1) (2) (1892) L.R. 20 I.A. 50. (3) 800 to private rights between subject and subject can fetter or disturb the sovereign will ". It seems 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 December 17	 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	 801 1941	 though it took effect retrospectively from the date of death of Babasaheb. We see no reasons why S	 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 Saranjam tenure. 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 lineal 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 impartable 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 802 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. Now	 as to section 4 of the Bombay Revenue Jurisdiction Act	 1876. The section	 so far as it is relevant for our purpose	 says: " section 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 803 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 alias Annasaheb Basvantrao Desai Nadgouda vs Tukko Narshimha Mutalik Desai and Others (1) it was pointed out that in the section a distinction has been made between claims and suits. The subclause 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	 relat ing to Saranjam lands	 and the suit was barred under section 4 of the Bombay Revenue Jurisdiction Act	 1876. (1) I.L.R. 804 We accordingly allow this appeal	 set aside the judgment and decree of the High Court dated November 12	 1952	 and restore that of the learned Civil Judge dated April 20	 1949. The appellant will be entitled to his costs throughout from the plaintiff respondent. Appeal allowed.

Summary:
Upon the death of the holder in 1932	 the Government of Bombay by order dated June 7	 1932	 resumed the Saranjam estate of Gajendragad and re granted the same to his eldest son. By the same order the assignment of some lands out of the estate in favour of B	 a younger member of the family	 by way of maintenance was also continued. On May 14	 1940	 B died leaving his widow	 A	 and his undivided brother	 D. A asked the Government for permission to adopt a son but without the permission being granted adopted V on July 10	 1941. By an order dated December 17	 1941	 the Government continued the maintenance grant (Saranjam potgi) to D. Thereupon V filed a suit against the Government and D for recovery of the lands on the grounds (i) that the order of the Government dated December 17	 1941	 was ultra vires	 null and void	 and (ii) that by the custom of lineal primogeniture which prevailed in the family the lands	 upon the death of B and upon the adoption of V by A	 devolved upon V in preference to D. The suit was contested	 inter alia	 on the grounds: (i) that under the relevant Saranjam Rules the interest of B came to an end on his death and was not such as could devolve upon V despite the order dated December 17	 1941	 (ii) that the alleged family custom did not apply to maintenance grants and (iii) that the suit was barred under section 4 Of the Bombay Revenue jurisdiction Act	 1876: Held	 that the plaintiff was not entitled to the lands either under the Saranjam Rules or under the custom; further that the suit was barred by $ 4 of the Bombay Revenue jurisdiction Act	 1876. 103 790 The maintenance grant (potgi holding) was part of the Saranjam and was governed by the incidents of Saranjam tenure and by the relevant Saranjam Rules. Saranjam grants were granted or withheld at the will and pleasure of the sovereign power and the grant was always subject to interruption and revocation by resumption	 temporary or absolute. On the death of B it was open to the Government to resume the grant and to grant it to D and this is what it did by the order dated December 17	 1941. The taking in adoption of the plaintiff by the widow of the deceased could not affect the operation of the order passed by the Government. Daulatrao Malojiyao vs Province of Bombay (1946) 49 Bom. L.R. 270	 referred to. Even under the custom of lineal primogeniture pleaded by the plaintiff	 D was entitled to get the properties after the death of B. It was not pleaded that the properties once so vested were divested by subsequent adoption by the widow. Further it was neither pleaded nor proved that the custom took away the right of the Government to resume the maintenance grant and to make a fresh grant thereof. Sub clause 4 of the Bombay Revenue jurisdiction Act	 1876	 barred the jurisdiction of civil courts in respect of " claims against the Government relating to lands granted or held as Saranjam". The plaintiff asked for a finding that the order of December 17	 1941	 was null and void and did not affect the properties in suit. Unless the order was out of his way	 the plaintiff was not entitled to claim recovery of possession. The claim was one which fell within the mischief of section 4 and the suit was barred.