THAKORE SOBHAG SINGH v. THAKUR JAi SINGH & Ors.

Thakur Sabha! Singh-. hereinafter called 'Sabhal Singh'-a jagirdar of Thikana Jhakora in Shekhawati area former Indian State of Jaipur applied on November 3, 1933 to recognize Jai Singh-the first respondent in this appeal-as his adopted son for succession to the Thikana. On May 23, 1936, the Ruler of Jaipur in Council ordered that he "saw no reason at the present moment to recognize the adoption advocated by" Sabha! Singh, and that the "alleged adoption of Jai Singh shall in no way be deemed to be an adoption that will in any. sense bind the Darbar as regards the question of succession". On June 16, 1947, Sabha! Singh preferred another application to the Prime Minister of Jaipur for recognizing the adoption of Jai Singh. The application was 850 SUPRF.MP. COl!RT REPORTS [1968] 2 S.CR. sent to the Board of Revenue for enquiry and report under the Jaipur Matmi Rules, 1945. The Board of Revenue rep8rted that in view of the Council Resolution dated May 23, 1936, the appli cation was not maintainable since Sabha!

Singh was living at the date of the application. But before this application could be finally disposed of by the Government of the State of Jaipur Sabha! Singh died and the Prime Minister of Jaipur directed that nccessai: ""el)quiries be held under the Matmi Rules. and for that purpose the record be sent to the Deputy Commissioner for taking action according to the Rules. The Nazim, Jhunihunu reld an enquiry and reported that adoption of Jai Singh by Sabha! Singh could not be recognized, for, under the Council Resolution dated May 23, 1936, the Government had refused to ~rant any recog nition to the adoption. In the view of the Nazim, the adoption of Jai Singh by Sabha! Singh without the previous sanction of the Governinent was ihvalid, and evidence of the "factum of adoption" was inadmissible, but that did not debar Jai Singh from setting up a claim to succeed to the Thikana as a descendant in the senior line of the original grantee.

An appeal against that order to the Deputy Commissioner was dismissed. A second appeal was then carried to the Board of Revenue. Jn the view of the Board. on the terms of the Council Resolution dated May 23, 1936. an enquiry into the factum of adoption could not be shut out. The Board accordingly called for a finding on the question, amongst others. whether Jai Singh was formally adopted by Sabha! Singh of Jhakora, and if so wherv? The Nazim reported that the adop tion of Jai Singh stood proved ~atisfactorily, but the adoption could not be recognized because no previous sanction of the Ruler had been obtained. Since. however, Jai Singh was the senior-most member of the senior line of descent from the original grantee. he was entitled to succeed to the J!rant under r. 14(1) of the Jaipur Matmi Rules. 1945. in preference to any other claimant. The papers were then submitted to the Collector, Jhunjhunu.

The Collector confirmed the finding of the Nazim that Jai Singh wa~ adopted by Sabha! Singh. but in the absence of previous sanction of the Ruler the adoption co"Jd not be recognized. The Collector did not, however. agree with the Nazim that Jai Singh was the senior member of the senior line of the original grantee : he held that Sobhag Singh-appellant in this appeal-was senior member of the senior line of the original grantee and recommended that "the Matmi be granted in favour of Sobhag Singh. " Th~ Roard of Revenue agreed with the Collector that Jai SinJ?h wa' not the senior member of the senior line of the ori~inal grantee of the j!rant in question. and that the appellant Sobhag Sin.gh had a preferential claim to the grant of Matmi. The Board without recording a finding on the issue of adoption accepted the recom mendation of the Collector. A • B ' c D E F G JI • A B c D E F G H · " SOllHAG SINGH v.

JAi SINGH (Shah, J.) 851 Jai Singh then moved a petition under Art. 226 of the Consti tution before the High Court of Rajasthan. The High Court quashed the decision of the Boatd of Revenue and directed the Board "to decide the case ih accordance with law in the light of observations made" in the judgment. In the opinion of the High Court, the Jagir devolved according to the personal law applicable to the last holder, and the personal law included the custom or usage relating to the particular Jagir; that the custom or usage applicable to the Jagir in question was that the adopted son must be a direct male lineal descendant of the original granite, and that Nahar Singh was the original grantee of the Jagir in question and Jai Singh as a descendant of Nahar Singh was entitled to take the Jagir if it was proved that the adoption had been made in accordance with the personal Jaw, that the Matmi Rules had no statutory force because it was not proved that assent of the Ruler of Jaipur had been given thereto, and that even assuming that rhe Rules were "existing Jagir Jaw" they did not govern adoptions made before they were brought into force.

An application for certificate to appeal to this Court against the judgment of the High Court under Art. 133 of the Constitution was rejected on the ground that the dispute had not been finally decided, and a number of issues remained to be decided. The Board of Revenue held, on a re-hearing of the appeal, that Jai Singh was proved to have been adopted by Sabha) Singh. The Board accordingly directed that by virtue of the adoption of Jai Singh by Sabha! Singh, Jai Singh be shown in the revenue records as the Jagirdar of Jhakora on the ·demise of Sabha! Singh. Against that order, Sobhag Singh who claimed to have a preferen tial right to the Jagir of Jhakora has appealed to this Court. A large number of grounds were canvassed at the Bar in sup port of this appeal : they fall into three broad divisions : ( 1) That the Board of Revenue had no jurisdiction to decide a dispute relating to adoption which dispute was triable by the Civil Court alone; (2) Since the Jaipur Matmi Rules had been validated bv the Jaipur Matmi Rules (Validation) Act.

1961 (Act 21of1961), the Board was bound to decide the appeal in the light of the Rules; ( 3) That on the evidence it is not proved that Jai Singh was in fact adopted by Sabha! Singh as his son on Karlik Sudi 13 Samvat Year 1987. The first and the third grounds Present no difficulty. The Raias than Legislature enacted the Rajasthan Jagir Decisions and Pro Cl'edings (Validation) Act 18 of 1955 to validate certain decisions 852 SUPREME COURT REPORTS [l 968] 2 S.C.R. providing resumption recognition of succession given, and proceedings taken, in respect of matters relating to the resumption of Jagirs in the covenanting States of Rajasthan, and the recognition according to the law of succession to the rights and titles of Jagirda"' therein, and to provide the forum for the dis posal of such cases and proceedings. The State of Jaipur was one 'of the covenanting States. Bys. 3 of it.at Act it was provided that all decisions of the various grades of Revenue Courts or officer,, in cases or proceedings arising out of, or under, the laws of the covenanting · States jagirs in 'those States and the rights and titles of jagirdars therein shall be valid and shall be deemed always to have been valid and shall not be liable to b~ called in question in any Civil Court.

Section 4 provided ~or continuance of pending cases and pro~eedings before the Revenue Courts as .f they were properly instituted. Section 5 provided that all cases·or proceedings of the nature referred to in s. 3 may after the Act be instituted in the Court of the Collector exercising jurisdiction in the area within which the subject-matter of the case or proceeding is situate. Provision was made for appeals from the orders of the Revenue Courts by s. 8, and by s. 12 the order of the Board of Revenue was declared final. The jurisdiction of the civil court to entertain suits or proceedings referred to In s. 5 was expressly excluded by s. 13. The power to deal with and decide disputes relating to succession to jagir estates was there fore vested in respect of proceedings pending at the date of the Act and instituted thereafter, in the Revenue Courts. The Board of Revenue was, therefore, competent to decide the question re lating to the adoption of J ai Singh by Sabha!

Singh. There is overwhelming evidence on the record in support of the case that Jai Singh was adopted on Karlik Sudi 13 Samvat Year 1987 by Sabha! Singh with the requisite ceremonies accord ing to the personal law. Every authority or Tribunal which had occasion to deal with this quc;5tion was of the opinion that Sabha! Singh and adopted Jai Singh on Karlik Sudi 13 Samvat Year 1987 according to the custom of the Jagir. Apart from the oral evid ence, there is the deed of adoption, a copy of an invitation sent to an invitee to attend the adoption ceremony and the recitals in the application submitted by Sabha! Singh requesting recognition of the adoption of Jai Singh. The Board of Revenue in the judgment under appeal has carefully analysed the evidence, and we see no reason to enter upon a reappraisal of the evidence in this appeal with special leave. The view recorded by the ~oard of Revenue on appreciation of evidence that Jai Singh was adopted as a son by Sabhal Singh must be accepted.

The second contention may now be considered. In 1945 the Jaipur Matmi Rules were published in the State Government Gazette. By r. 3 all existing orders, rules and hidayats which • A B c n E F G H ... - A B c E F G H SOBHAG SINGH v. JAi SINGH (Shah, /,) 853 .were inconsistent with the Matmi Rules were repealed. Rule 4 sub-r. (3) defined "Matmi" as meaning mutation of the name of the successor to a State grant on the death of the last holder. By r. 5 it was provided that all State grants shall be subject to matmi with certain exceptions not relevant in this case. Rule 14 provided: " ( 1) Subject to the provisions of rule 13, succession in the absence of a direct male lineal descendant of the last holder shall be restricted to the lineal male-descen dants of the original grantee, preference being given to the senior member of the· senior line : Provided, firstly, that in tht; case of a grant for the maintenance of a temple, mosque or other religious place, other than a Jain temple, it shall be within the discretion of Government to select as successor any one of the male lineal descendants of the original grantee, with due regard to his suitability for the perfomiance of worship; and Provided, secondly, (2) No adoption shall be recognised for the pur pose of succession to a State grant unless a holder has obtained the previous sanction of the Government to adopt, such sanction being given only in favour of a direct male !in.ea! descendant of the original grantee : Provided, firstly, Provided, secondly, " That rule is plainly prospective, and can have no application to an adoption !nade. before the Rules were promulgated.

Previous sanction to adopt is not a condition of the grant of recognition for the purpose of succession to a State grant in respect of a person who is adopted by the holder of a I agir before the date of the promulgation of the Rules. That was the view taken by the High Court in the writ petition filed by Jai Singh against the order of the Board of Revenue. The High Court also held that the Matmi Rules were not sanctioned by the Government, and had not the force of >aw. It is true that the State Legislature has enacted Act 21 of 1961-called 'The Jaipur Matmi Rules (Validation) Act 1961 '. By s. 2 of that Act it is provided that "notwithstanding anything contained in the Jaipur General Clauses Act, 1944, or any other Jaw or in any rule of interpretation or in any judgment decision, decree or order of any court, notwithstanding any omis sion or defect of form or procedure or .want of any competent sanction or approval, it. is hereby declared that the Jaipur Matmi Rules, 1945, published in the Jaipur Gazette, Extraordinary, dated 854 SUPREME COURT RF.PORTS [I 968) 2 S.C.R. the 8th December.

1945. under Revenue Branch Notification No. 15941 /Rev., dated 24th November, 1945, shall have, and shall be deemed always to have had, the force of law and shall be treated as being and as having been an 'existing Jagir law' within the meaning of clause ( d) of section 2 of the Rajasthan Land Refonns and Resumption of Jagirs Act, 1952 (Rajasthan Act 6 of 1952) for the purpose of that Act as we)) as of the Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955 (Raias than Act 18 of I 955). and any other law relatnip; to "Jagirs or Jagirdars. " But the Act did not supersede the judgement of the therefore incompetent High Court. The Board of Revenue was to consider and decide the question whether the GovernmCilt may in the absence of the previous sanction of the Government refuse to recognize the adoption of Jai Singh. The Act again merely declares that the Matmi Rules shall be deemed always to have the force of law and shall be treated as being "cxistin)l Jagir law" within the meaning of cl.

(d) of s. 2 of the Rajasthan Land Re forms and Resumption of Jaj!irs Act 6 of 1952 and Rajas1han Act 18 of 1955. But the Act docs not purport to give retrospec tive operation to the Jaipur Matmi Rules. It is futile then t.1 contend that the Board of Revenue before determining the quc ;. tion as to the factum of adoplion of Jai Sin~h was required t l consider wnether the adoption was invalid. because sanction of th~ Ruler of Jaipur was not previously obtained by Sahhal Singh bcrorc taking Jai Singh in adoption. The High Court had also held in the writ petition that on the death of the holder of the Ja~ir without having any issue the Jagir will vest in his adopted son in accordance wi1h the personal law. That findinj! is now res j11dicafa and is bindin~ upon the parties. Counsel for the appellant contended that the order passed by the Hi!!h Court was an interlocutory order remanding the proceeding to the Board of Revenue, and on that account the decision of the High Court will not operate as res j11dicata either before the Board of Revenue or in this Court.

We are unable to accept that con tention. Against the order or"the Board of Revenue rejectin~ the claim of Jai Singh to be recOgQized as the adootcd son of Sabha! Singh a writ petition was moved in the Hioh Court and a prayer for ouashing that order was made. The Hi2h Court dealt with the dispute on merits and held that the order of the Board of Revenue holdine that because of the Matmi Rules the adoption of Jai Sineh by Sabhal Singh without the previous sanction of the Ruler could not be recognized for the purome of detenninine the succession to the Jagir was erroneous. The Hi2h Court did in making the final order direct the Tribunal to decide the case 'in accordance with the law and in the light of the observations made in the· judement. but the direction was. in our judgment. a sur plusa, ee. The Hi.eh Court is<:i?ed a writ in the nature of certiorari A B ' c D E .- G H SOBHAG SINGH v. JAi SINGH (Shah, /.) 855 A B c D E F G quashing the order of the Tribunal.

It was unnecessary thereafter to direct or advise the Board of Revenue lo perform its statutory duty to decide the dispute according to law. The Board of Reve nue had to decide the dispute in accordance with the law declared by the High Court. All questions which had been expressly decided by the High Court on contest between the parties and other questions which must be deemed by necessary implication to have been decided were res judicata and could not be re-opened In this appeal it is therefore, not before the Board of Revenue. open to the appellant to contend that the decision of the High Court on the questions decided in the writ pctttion was erroneous. It is unfortunate that the application for certificate to appeal to this Court filed by Sobhag Singh was erroneously rejected by the High Court. But that does not affect the binding character of the judgment of the High Court between the parties.

Unless the decision of the High Court on those questions was set aside by appropriate proceeding in this Court, the judgment must be held It is, therefore. not open to the binding between the parties. appellant to contend. that the right of Jai Singh as the adopted son to the I agir had to be .decided otherwise than in accordance with the personal law of Sabha! Singh. It is undisputed that accordin.g to the personal law applicable to Sabha! Singh, Jai Singh could have been adopted by him. It was somewhat faintly contended by counsel for the appel lant that if the judgment of the High Court is regarded as bindin~ between the parties, the equal protection claus~ of the Constitution would be violated, and on that account also the judgment must be held invalid. The argument needs no serious consideration. It is difficult to appreciate the contention that two persons similarly situate were or co~d be differently treated by the judgment of the Board of Revenue. because the decision of the High Court operate> as res judicata between the parties in one case.

By the application of the rule of res judicata the appellant was not singled out for special or prejudicial treatment. It may suffice to observe that all adoptions according to the personal law in the State of Jaipur made by Jagirdars before the p•omulgation of the Matmi Rule~ are valid, even if no sanction of the Ruler was. obtained to the adoptions. That rule applies to all adoptions by /agi•dars in the State of Jaipur. The appeal fails and is dismissed with costs in favour of the first respondent. H V.P.S. A ppea/ dismissed. ' •J