Ig6o v. SHRIMANT VIJAYASINHRAO & Anr.

The Government Resolution passed by defendant No. 1 in 1941 is ultra vires and null and void for the following reasons : ·5 (a) Defendant No. 1 made a regrant of the Saranjam estate to Shrimant Sardar Bhujangarao Ghorpade in 1932 and therein the suit properties were, according to defendant No. 1, continued tq the adoptive father of plaintiff. Under the Saranjam rules no occasion has arisen for interference by Government at this stage. The regrant 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 anQ. 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 Babasaheb came to an end on his death and was not of such a nature as would 794 SUPREME COURT REPORTS [1960] r96o devolve on the plaintiff-respondent despite tbe Govern- Shrimant Dattajirao ment Resolution dated December 17, 1941, (2) that Bahirojirao Gho; ade the alleged family custom did not apply to mainten ance grants, and (3r that, in any event, the suit was Shrimant Vijaya- barred under s.

4 of the Bombay Revenue Jurisdiction Act, 1876. The appellant besides supporting the afore- said 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. sinhrao s. K. Das J. 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 circum stances 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-res pondent ·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 Issues 1 and 2 related to the question of the issues. adoption, namely, (1) whether the ceremony of adop tion 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 3 S.C.R. SUPREME COURT REPORTS 795 I96° Civil Judge found in favour of the plaintiff-respondent and on the second against him.

The High Courtshrima-,-;tn-attnjirao affirmed the finding on the first issue, and on a care- fol and detailed examination of the evidence held on the second issue that the learned Civil Judge was Shrimif"' Vijaya- 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 plaint»I'- respondent was validly adopted by Abayabai on July 10, 1941. •':'_h~~ s. K. Das J. Bahiroji~ao Gho•.t,a e 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 Re solution (D. G.) No.

8969 of Decem ber 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 s. 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 SUPREME COURT REPORTS z960 Bahirojirao Gho; pade made a valid adoption, the properties were divested Shrima.ntD~ttajfraoand 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 Shrim~nt Vijaya- 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 s. 4 of the Bombay Revenue Jurisdiction Act, 1876 . sinh.ao s. K. Das ./. • On behalf of the appellant, it has been very strenu ously 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 adopti9n of the plaintiff-respondent; it is contended that snch a conclusion is inconsistent with the nature of a Saran jam 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 ques tion whether even that custom has been proved or not, that the properties in suit having once vested iti 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 s. 4(a) of the Bombay Revenue Jurisdiction Act, 1876. The argument before us has been that thPre was such a claim, and no Civil Court had jurisdic tion 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 Saranjam Rules assuming here that they apply, 'j -- .... - 3 S.C.R. SUPREME COURT REPORTS 797 x960 JJahirojirao Ghorpade_ In the Resolution of June 7'.~hrimantDattajirao as far as practicable, to maintenance grants (potgis) within the Saranja_m.

1932, quoted earher, the Government of Bombay treated the potgi holders as being within the Saranjam and made provision for them. The Resolution of Shrima:i Vijaya• December 17, 1941, also proceeded on that footing. Two earlier Resolutions, one of 1891 (Ex. 100) and the other of 1936 (Ex. 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 Govern- ment refqsed 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. sinhiao s. K. vas J. 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. Ethe- . ridge in his preface to the Saranjam List, it was the practice of the former Governments, both the Mus lims and the Marathas, to maintain a species of feudal aristocracy for the State purposes by tempo rary 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 adminis ter the general management of the lands. Under the Muslim rule, such holdings were called J ahagirs 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 SUPREME COURT REPORTS [1960] r960 · Shrimant Dattajirao · Bahirojirao. :' Ghorpade v.

Shrimant Vijaya~ sinhr40 S. K. Das]. 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 cl. 3 of s. 2 of Bom bay Act VII of 1863. We may here reproduce some of these Rules: " Rule 1-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 continu ance 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 Pro vincial 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 ) 3 S.C.l{. SUPREME COURT REPOHTS 799 Bahirojirao Ghorpade v.

Government, unencumbered by a:iy debts or charges save such c,s may be specially imposed by ProvincialshrimantDattajirao Government itself. I96o , Rule 7-Every saranJamdar shall be responsible sinhrao S. K. Das J. for making a suitable provision for the maintenance Shrimant Vijaya- of the willow or widows of the preceding saranjam- dar, his own brothers, or any other member of his family who, having a valid claim arising from in- fancy, 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; pro- vided that no one who has independent means of his own, or is, in the opinion of Provincial Govern- ment, 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 v. Province of Bombay(') where their Lordships after referring to the earlier decisions in Shekh Sultan Sani v. Shekh Ajmodin(2 ) and. Raghoji rao v. 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 abso lute in character. No incident normally applicable (1) (1946) 49 Bum. L.R. 270. (2) (1892) L.R. 20 I.A. 50. (3) (1912) 14 Born. L.R. 1226. 800 SUPREME COURT REPORTS [1960] 60 '9 Shrimant Dattajirao Bahirojirao Ghorpad• v.

Shrimant Vijaya- sinhrao to private rights between subject and subject can fetter or disturb the sovereign will ". · h d h Ab b · h S k d aya a1 as e f or sanction to I · ·c 1 1 araniam t seems to us mamiest y c ear t at t e Rules furnish no basis for the claim of the plaintiff- respon ent. taking a boy in adoption. No such sanction was s. K. Das f. given. On the death of Babasaheb, it was open to Government to resume the grant, and by its Resolu tion 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 empha sised the use of the word " continued" in the Resolu tion 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 with in 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 pur poses, to have any effect from that event.

It is well to remember that the ~doption took place on July 10, 1941, and the Resolut10n was passed on December 17, 3 S.C.R. SUPREME COURT REPORTS 801 1941, though it took effect retrospectively from the date ?f death of Babasaheb. We see _no reasons why Shrima-;,,D~ttajirao a vahd 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 Shrimant Vi;aya- 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. sinhrao s. K. Das J. Bahirnjirao &ho; tade r96o Let us now examine the claim of the plaintiff-res pondent from the point. of view of the custom pleaded in paragraph 6(b) of the plaint. The custom pleaded In its written was the rule of lineal primogeniture. 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, Govern ment is given absolute discretion to determine whether or not to make an order and what pro vision 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 be come the owner by survivorship, after the death of Babasaheb ". The learned Civil Judge found that the custom plead ed 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 impartible and goes by primo geniture". 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 802 SUPREME COURT REPORTS [1960) I96o properties. It was not pleaded in the plaint that the . 0~~· ' - - 1 Shrimo~t~D~ttajirao properties once vested by the customary rule of lineal , 8(;~" 017° primogeniture were divested on subsequent adoption by the widow. No such plea was specifically taken, Shrim~nt Vijaya: but the High Court relied on the concession made by earned advocate for the appellant that under ordmary s. K. Das J. Hindu law the properties which were vested in the appellant were divested on a subsequent valid adop tion . 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 ~o the plaintiff-respondent to make out a new case fo; the first time in appeal.

The plaintiff-respondent seu up a family custom of lineal primogeniture different fr01_, 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 th!!. properties devolved on him. Moreover, in order fo succeed the plaintiff-respondent must further establish that the custom was such as would bind the Govern ment. 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 pat"t of a Saranjam and make a. fresh grant there of in accordance with the Saranjam Rules. t. / -~-· -" ·-~ Now, as to s. 4 of the Bombay Revenue Jurisdic tion Act, 1876. The section, so far as it is relevant for our purpose, says:- " S. 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 here ditary officer appointed or recognised under Bombay Act No.

III of 1874 or any other Jaw for the time being in force, or of any other village-officer or \ servant, or S.C.R. SUPREME COURT REPORTS $03 claims to perform the duties of any such officer I96o or servant, or in respect of any injury caused by Shrimant Dattajirao exclusion from such office or service, or suits to set aside or avoid any order under the Ba_hiroji>ao Gho::ade same Act or any other law relating to the same Shrim~nt Vijaya subject for the time being in force passed by the State Government or any officer duly authorized in that behalf, or sinhrao 's. K. Das j. 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 M allappa alias A nnasaheb Basvantrao Desai N ad gouda v. Tukko Narshinha Mutalik Desai and Others (1) it was pointed out that in the section a distinction has been made between claims and suits.

The sub clause we are concerned with is the fourth sub-clause which relates inter alia to" claims against the Govern ment 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 Decem ber 17, 1941. Unless the Resolution is out of his way, the plaintiff.respondent is not entitled to claim re covery of possession from the appellant with mesne profits, etc.

The Civil Court has no· jurisdiction to determine any claim against the Government in the niatter of the Resolution of December 17, 1941, relat ing to Saranjam lands, and the suit was barred under s. 4 of the Bombay Revenue J urisdictiori Ac't,' 1876.' · · (I) l.L.R. [1937J Ilo~. 464. 804 SUPREME COURT REPORTS [1960) r96o We accordingly allow this appeal, set aside the Shrimant Dattajirao judgment and decree of the High Court dated N ovem ber 12 1952 and restore that of the learned Civil Judge' dated' April 20, 1949. The appellant will be Shrimant Vijaya- entitled to his_ costs throughout from the plaiutiff- Buhirojirao Gho~~ade respondent. - Appeal allowed. sinhrao S. K, Das j. April 29. M/S. CHANDAJI KUBAJI & CO. v. THE STATE OF ANDHRA PRADESH. (S. K. DAS, J. L. K~PUR and M. HIDAYATULLAH, JJ.) R_eview-Grounds for-Whether allowable on party's own deli berate · negligence and intentional withholding of evidence-The Madras General Sales Tax Act, I939 (Mad.

Act IX of Ig39), s. I2A (6) (a). The appellant company was a dealer in ghee and ground nut oil et~. The Deputy Commercial Tax Officer assessed it to sales tax for the year 1948-49 on a turnover of Rs. 28,69,151 and odd. Similarly for the year 1949-50 the appellant was assessed to sales ·tax on a turnover of Rs. 28,72,083 and odd. The appellant challenged these assessments and its appeal before the Commercial Tax Officer having failed the two matters came up in second appeal before the Sales Tax Appellate Tribunal. In the Tribunal the appellant did not place any materials in support of its contentions and the two appeals were disposed of by the Tribunal holding that the appellant was correctly assessed to sales tax. In respect of the aforesaid orders of the Tribunal the appellant filed applications for review under s. l2A(6)(a) of the Madras General Sales Tax Act, 1939 (Mad. Act IX of 1939), taking the plea that in the first case the materials could not be placed before the Tribunal as there was none to instruct the appellant's advocate in English or Telegu, and in the second case the rele vant correspondence was mixed up with other records.

The Tri bunal rejected the applications for review on the ground that a failure to produce the necessary materials in support of a plea taken before it, due either to gross negligence or deliberate with holding, did not come within the reason of s. 12A(6)(a) of the Act. The High Court upheld the decision of the Tribunal. On appeal by specialleave in one case and a certificate of the High Court in the other : Held, that the provision ins. l2A(6)(a) of the Madras General Sales Tax Act, 1939 (Mad. Act IX of 1939), permits a review when through some oversight, mistake or error the necessary facts, basic or evidentiary, were not present before the Court when it passed the order sought to be reviewed, but a party was not