Case ID: 2802

Judgment:
Appeal No. 1370 of 1966. Appeal from the Judgment and decree dated February 16	 1966 of the Rajasthan High Court in D. B. Civil Regular First Appeal No. 86 of 1958. R. K. Garg	 section C. Agarwal	 D. P. Singh	 V. J. Francis and section Chakravarty	 for the appellants D. V. Patel	 Janendra Lal	 and B. R. Agarwala	 for the respondents. The judgment of the Court was delivered by Bhargava	 J. This appeal arises 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 had two sons	 Govindraoji 'and Motilal alias Krishnaraoji. The plaintiffs/ appellants and the non contesting proforma 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 83 9 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 Jagir. 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 Rao 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 Raoji 's 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 8 40 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 according 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 Kotah 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 alone. The claim of the plaintiff 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 proforma 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. Since	 in this case	 no effort was made on behalf of the respondents to contest the correctness of the finding given by the High Court that all these villages were joint family property and were treated as such right up to the year 1937 when Purshottam Raoji died	 we need not enter into the details of the evidence on the basis 841 of which this finding has been recorded. The question that falls for decision is whether the Maharao of Kota by his order dated 22nd January	 1938	 could validly change the nature of the property. make it impartible and governed by the rule of primogeniture when the property was already joint family property. In deciding this question	 the crucial point is that the Maharao of Kota was an independent and sovereign Ruler whose orders in his State were law. He had absolute power to make any orders	 and the Order dated 22nd January	 1938 has	 therefore to be given the force of law which	 when it was passed	 could not be challenged as invalid. Counsel for the appellants	 however	 urged that all orders passed by an independent and sovereign Ruler do not have the force of law. It is only those orders which purport to lay down a law for the State which cannot be challenged and which would remain in force even after the merger of the Kota State in India and after	 the enforcement of the Constitution under article 372 of the Constitution. His submission was that	 when passing the Order dated 22nd January	 1938	 the Ruler was only exercising executive powers of directing mutation of names and was not exercising any legislative powers. The nature of the Order passed by him	 however	 shows that this submission cannot be accepted. No doubt	 that Order was made on a report which was put up before the Maharaoji for deciding who should be held to be the owner of the Jagir when Purshottam Raoji died. The Order shows that the Maharao took notice of the fact that the Sanad had been granted in the name of Lalaji Ramchandra and his eldest son Govind Rao on executing a deed of release in respect of the debt	 but it added that	 when the unpaid debt was changed in the form of a Jagir and no special condition was laid down regarding it and the name of only the eldest son was written in the 'Sanad ' though another brother was present there	 it has to be held that the Jagir was intended to be given on the same rules on which the other Jagirs were granted The Order then proceeds to take notice of the fact that	 though the mutation should have been in the name of Chandrakant after the death of Ganpat Rao	 a practice had developed of entering more than one person as the holders of this Jagir. It appears that	 in order to give effect to the original intention that this Jagir should be governed by the same rules as all other Jagirs	 the Maharao proceeded to lay down that this ' Jagir should also be impartible and should be held by the eldest member of the family in the eldest branch. The Ruler considered it desirable to make this Order	 because it was envisaged that	 it the entire Jagir	 was distributed amongst all the members of the family	 then even the name of Thikana ' would disappear. It was considered desirable that this Jagir should be governed according to the custom of the States in Rajputana including Kota State under which the eldest son of the senior branch alone was entitled to hold the property. Thereafter	 the Maharao proceeded to lay down that this Jagir should be L 10 Sup C I (NP)70 9 84 2 equated with other Jagirs by making a direction that the holders of this Jagir should also render 'Chakri ' and should continue to do 'Subhchintki '. Having made this direction	 the Ruler then held that. since this 'Thikana ' was being given proper shape	 its custom and status must be similar to that of all other Jagirdars in the State. These directions given by the Ruler clearly show that	 though the proceedings came to him on the basis of a report for directions as to the mutation entry to be made on the death of Purshottam Rao	 he proceeded to lay down the principles Which were to govern this Jagir thereafter. The Ruler decided that this Jagir should be placed on equality with all other Jagirs in the State and should be governed by the same laws. The Order thus made was clearly an exercise of legislative power by which the Ruler was competent to lay down that	 though this Jagir had in the past been joint family property	 it was to be thereafter impartible property governed by the rule of primogeniture and Chandra Kant Rao as the eldest member of the senior branch was to be the sole Jagirdar. This was	 therefore	 a case where the Maharao exercised his powers of laying down the law with respect to this one single Jagir. It cannot be said that the Order passed by him was a mere executive order and did not result in exercise of his powers of making the law. In this connection	 counsel for the appellants relied on the principle laid down by this Court in Rajkumar Narsingh Pratap Singh Deo vs State of Orissa and Another(1) to canvass his submission that the Maharao	 in this case	 was not exercising legislative powers when he passed the Order dated 22nd January	 1938. In that case	 the effect of a Sanad granted by the Ruler of Dhenkanal State had to be considered and 'the question arose whether the Sanad could be treated as existing law within the meaning of article 372 of the Constitution. The Court	 after taking notice of previous decisions	 drew a distinction between orders made by a Ruler having the force of law and orders which may be of executive nature	 and held "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." (1) ; 843 On an application of these principles in that case	 it was held that the Sanad in question could not be held to be a legislative act. In 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 mature of the Order	 which changes the law applicable to the Jagir	 indicates that it was a 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. Reliance was also placed on the decision of this Court in State of Gujarat vs Vora Fiddali Badruddin Mithibarwala(1)	 but that case	 in our opinion	 has no application at all. In that case		 the question arose whether an agreement entered into by a Ruler had the force of law. In the case before us	 there is no such question of any agreement. In dealing with that question	 the Court relied on the following extract from a decision of the Court in an earlier case of The Bengal Nagpur Cotton Mills Ltd. vs The Board of Revenue	 Madhya Pradesh and Others(2) : "It is plain that an 'agreement of the Ruler expressed in the shape of a contract cannot be regarded as a law. A law must follow the customary forms of law making and must be expressed as a binding rule of conduct. There is generally an established method for the enactment of laws	 and the laws	 when enacted	 have also a distinct form. It is not every indication	 of the will of the Ruler	 however expressed	 which amounts to a law. : An indication of the will meant to bind as a rule of		.	 conduct and enacted with some formality either traditional or specially devised for the occasion	 results. in a law but not an agreement to which there are two parties	 one of which is the Ruler. " Emphasis was laid by counsel on the views expressed in this passage that a law	 must follow the customary forms of law making.and ' (1) ; (2) A.T.R. 1964 S.C. 8.88 844 must be expressed as a binding rule of conduct. In the present case	 there is nothing to show that	 in the State of Kota	 there was any other customary form of law making. The Order of 22nd January	 1938 clearly expresses the direction of the Ruler that the Jagir must be governed by the same customary law as other Jagirs as a binding direction which was to govern the future conduct of the holders of this Jagir. The principle relied on	 therefore	 does not show that this Order of 22nd January	 1938 did not amount to a legislative act on the part of the Maharao. Reference was also made to the decision of this Court in Major Ranjit Singh Rao Phalke vs Smt. Raja Bai Sahiba (dead) by her legal representatives & Vice Versa(1) where the Court said : "It is now settled law that every order of the Maharaja cannot be regarded as law	 particularly those which were in violation of his own laws." and again repeated: "The position today is that every order of the Ruler cannot be regarded as law but only such orders as contain some general rule of conduct and which follow a recognised procedure of law making." In that case	 the particular order of the Ruler which was questioned had been made in contravention of one of the existing laws of the State and it was held that such an order could not be treated as law. In the case before us	 the position is quite different. There was no law of the Kota State which could be held to be contrary to the Order dated 22nd January	 1938. In fact	 the general law govern ing all Jagirs in the State was the customary law under which the Jagirs were owned by the eldest member of. the senior branch	 and all that this Order did was to apply the same law to this Jagir also. It is true that no special procedure of law making was adopted by the Maharao when making this Order; but that circumstance cannot change the nature of the Order specially when there is nothing to indicate that there was any recognised procedure of law making in the Kota State at that time. In these circumstances	 we hold that the High Court was quite correct in arriving at the decision that these eight villages '	 at the time when the suit for partition was instituted	 were impartible property governed by the law of primogeniture and Chandrakant Rao respondent alone had to be treated as the owner of these villages. It	 however	 appears that	 during the pendency 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	 (1) Civil Appeals Nos. 982 and 983 of 1964 decided on 18th July	 1967. 845 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 altemative	 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 suits 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 decision whether	 the appellants are entitled to claim a share in the compensation money received in lieu of these eight villages under Rajasthan Act VI of 1952. The result is that this appeal is dismissed	 subject to the modification that the case will go back to the trial Court for deciding the question whether the plaintiffs/appellants can claim a share in the compensation money or not	 as indicated above. Costs of this appeal shall abide the decision on this claim of the plaintiffs appellants to a share in the compensation money. R.K.P.s. Appeal dismissed.

Summary:
L had two sons G and M. L. and his elder son G were granted a Jagir by the then Ruler of Kotah jointly in their names	 in lieu of a debt which the Ruler owed to them. This property was treated as property of the joint family of L. The name of M	 the second son born after the grant	 was also mutated against the Jagir villages. The names of the descendants of G and M were from time to time similarly mutated against the Jagir and this Jagir as well as other property of the joint family was managed for some time by the eldest member belonging to either branch of the family. The respondent C was a descendant of G and claimed in 1937 before the Revenue Commissioner that as the eldest son in the eldest branch he alone had the right over the Jagir according to the custom and usage in Rajputana and	 consequently	 mutation in the records should be in his name alone. On a report by the Revenue Commissioner	 the Ruler passed an order on 22nd January	 1938	 directing that the Jagir	 like all other Jagirs in the State should be given the status of an impartible estate and should be liable to render 'Chakri ' and 'Subchintki ' to the Ruler. It was further ordered that the Jagir would be governed by the rule of primogeniture	 so that C alone would be held to be jagirdar. The appellants	 who were the descendants of M	 sought partition of all the family properties including the villages in the Jagir. Although the Trial Court dismissed the suit	 on appeal	 the High Court granted a decree in respect of other properties but upheld the dismissal of the suit in so far as the appellants had claimed a share in the Jagir. The appellants claimed that the jagir having been joint Hindu property	 their rights as successors in interest of M could not be defeated by the order of Ruler dated 22nd January	 1938	 and consequently	 the appellants were entitled to their proper share in the Jagir. It was contended that all orders passed by an independent and sovereign Ruler do not have the force of law. It is only those orders which purport to lay down a law for the State which cannot be challenged and which would remain in force even after the merger of the Kotah State in India and	 after the enforcement of the Constitution	 under article 372 of the Constitution. It was submitted that	 when passing the Order dated 22nd January	 1938	 the Ruler was only exercising executive powers of directing mutation of names and was not exercising any legislative powers. HELD: Dismissing the appeal. (i) The High Court was right in holding that the villages in the Jagir	 at the time when the suit for partition was ' instituted	 were impartible 838 property governed by the law of primogeniture and C alone could be treated as the owner of these villages. (ii)The very nature of the Order	 which changed the law applicable to the Jagir	 indicated that it was a legislative act and not a mere executive order. The Ruler 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 was immaterial	 because it does not appear that there were any other similar Jagirs which also required alteration of the law applicable to them. L843 B D] (iii)Although no special procedure of law making was adopted by the Ruler when making this Order	 that circumstance could not change the nature of the Order specially when there was nothing to indicate that there was any recognised procedure of law making in the Kotah State at that 	time. [844 F G] Rajkumar Narsingh Pratap Singh Deo vs State of Orissa and Another ; ; referred to. State of Gujarat	 vs Vora Fiddali Badruddin Mithibarwala ; and Major Ranjit Singh Rao Phalke vs Smt. Raja Bai Sahiba (dead) by her legal representatives and Vice Versa Civil Appeal Nos. 982 :and 983 of 1964 decided on 18th July	 1967 ; distinguished.