Sobhag Singh v Jai Singh

THAKORE SOBHAG SINGH #### _v._ THAKUR JAi SINGH & ORS. _January_ 31, 1968 [J. C. SHAH, V. RAMASWAM! AND V. BHARGAVA, JJ.] _Jaipur_ Matmi _Rules,_ _1945-W/Je//Jer_ _lun·e force_ _of_ _/c;n·-Adoption_ _prior to pron1ulga1ion of_ Rule~ _l\·itliour_ _sanction_ _of_ _Ru/er-Validity._ _Board_ _of_ _Revenue,_ _Rajas1han-Jurisdic1io11_ _10_ _decide_ _q11es1io11.r_ _of adop._ _tion and succession_ _to_ _jagirs_ _in_ _Jaipur State._ A B The Board of Revenue, Rajasthan. 1,1,·i1hout recording a finding on the C factum of respondent's adoption to the last holder of the jagir, rejected his claim to be r~cogniscd as the adopted son, on rhc ground that, under the _MaJ111i_ Rules, the adoprion, without lhc pr-evious sanct;on of the Ruler. could not be recognised for the purpose of determining succession to the jagir. Jn the writ petition filed by him, the High Court dealt with lhe dispute on merits and, holding (a) that the Jaipur _Mar111i_ Rules had no statutory force bccau'!le rhc Ruler had not given his assent to them; (b) thar on lhe death of the last holder without any issue lhe jagir would v-.'5t 1) in the respondent if it "'as proved that he v1as adopted in accordance wilh the personal law of the las! 1agirdar; and (c) that rule 14(2) requiring the previous sanclion of the Government of the State to adopt is prospective and could have no applicatiori to ~n adoption made before th: Rules "'-ere promulgated, dircc:ed the Qoard to drcide the case in accord· ance with the law declared hv the High Courl. The Board hold that the respondent was proved to have been adopted by the las1 jagirdar and directed that he should be recognised as the jagii'dar. E In appeal 10 this Court. against the order of the Board er Revenue it was contended by the appellant. \\'J10 claimed to have a preferential riaht to !he jagir, that : ( 1) rhe Board ol Revenue had no jurisdiction 10 decide the dtsput-~ relaring to ado;Jtion as it Yi:as triable by a civil court, and (2) since the Jaipur _MO/mi_ Rules (Validalion) Act, of 19&1, was passed after the judgment of the High Court, the Board was bound lo dispose of the matter in the light of the Rules. }' HELD : ( l) Under the Rajasthan Jagir Decisions and Proceedin~s (Validation) Act, 1955. the power to doal y,i1h and decide Jispules relaling to succession lo jagir·cstatcs '"a~ vested. in respect of procccdin~s pending at the date of the Act and instituted thercaf:-:!r, in the Revenue Courts. Therefore. the Board of Revenue ~·as competent to decide the question rrlating to the respondent's ad0ption. and its decision·· on--~ .the factum of adoption recorded on appreciation of evidenc·! ml.Jst be accepted. G 1852 D-E, H! (2) It was not open 10 !he appellant lo con'end !hat the righl of the respondenl. a> lhe adopted son, to th~ iagir had to he decided by 1he Roard on the basis of tl:c _Mar111i_ Rules and not in accordance with the personal law of the last jagirdar. (a) Though the State legislature .,naclcd the Validation Acl, declaring #### that the Ma1mi Rules 'shall have and shall be deemed always 10 have had, ll .. the for~ of law and '>halt be treated as heing and as having been an existing jagir law within the meaning of s. 2(d) of the Rajasthan Laod Reforms and Resumplion of Jagirs Act. 1Q5T, norwilhslanding anyrhing A B #### • ## c D E G H SOBHAG SINGH _V._ JAi SINGH _(Shah,_ _J,)_ 849 contained in any Judgment of any court, the Act did not supersede the judgment of tho High Court and therefore, the Board wa·s incompetent to consider and decide the question .whether the Government mav. in the absence of its previous sanC'tion, refuse to recognise the adoption of the respondent on the basis of the _Matmi_ Rules. [854 A-CJ (b) Acco<ding to the personal Jaw applicable to the last jagirdar, the respondent could have bee" adopted by him and the finding of the High Court that the jagir would ve~t in the respondent as the adopted son in accordance with such persl)!}al Jaw operated as _res_ _judicata_ and could not be reopened before the Board of Revenue; and, it was not open to the appeJlant to contend in the appeal to this Court that the deCision of the High Court on qu·estions decided in the writ petition was erroneous. The order of the High Court on the writ petition was not an interlocutory order. [854 E-G] (c) Rule 14(2) is on its terms prospective and the Validation Act Joes not give retro~pective operation to the _Matmi_ Rules. [853 FJ (d) It could not be contended that the judgment of the H;igli Court should not be treated as _res judicata,_ on the ground that .if it was regarded 4 as binding between the parties, the equal protection clause of the Consti tution would be violated if another person similarly situated were to be differently treated by the Board of Revenue. [855 E-FJ CIVIL APPELLATE JURISDICTION : Civil Appeal No. 568 of 1965. Appeal by special leave from the judgment and order dated October 23, 1962 of the Board of Revenue, Rajasthan at Ajmer in Matmi Case No. 40 (Jhunjhunu) of 1961. _M. M. Tiwari,_ _D._ _D._ _Varma_ and _Ganpat Rai,_ for the app.ellants. _A. K._ _Sen,_ _D._ _P._ _Gupta, Sobhag Mal Jain_ and _B._ _P._ _Mahesh-_ _wari,_ for respondent No. 1. _K._ _B._ _Mehta_ and _Miss Indu Soni,_ for respondent Nos. 2 to 4. T.he Judgment of the Court was delivered by Shah, J. This is an appeal brought with special leave against the judgment dated October 23 1962 in _Matmi_ Case No. 40 of 1961, of the file of the Board of Revenue, Rajasthan. Thakur Sabha! Singh-. hereinafter called 'Sabhal Singh'-a jagirdar of _Thikana_ Jhakora in Shekhawati area in the 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 application 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 recognition 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 adoption 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 the 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 recommendation of the Collector. A B ' ## c D E F G JI #### • A B # c D E F G SOllHAG SINGH _v._ JAi SINGH _(Shah,_ _J.)_ 851 Jai Singh then moved a petition under Art. 226 of the Constitution 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 preferential right to the _Jagir_ of Jhakora has appealed to this Court. A large number of grounds were canvassed at the Bar in support 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; and ( 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. H - " The first and the third grounds Present no difficulty. The Raiasthan Legislature enacted the Rajasthan Jagir Decisions and ProCl'edings (Validation) Act 18 of 1955 to validate certain decisions 852 SUPREME COURT REPORTS [l 968] 2 S.C.R. 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 disposal 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 providing for the resumption of _jagirs_ in 'those States and the recognition of succession to 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 therefore 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 relating 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 according 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 evidence, 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 ## ... SOBHAG SINGH _v._ JAi SINGH _(Shah,_ /,) 853 A .were inconsistent with the _Matmi_ Rules were repealed. Rule 4 B # c E F G H 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-descendants 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 purpose 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 omission 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 (Raiasthan Act 18 of I 955). and any other law relatnip; to _"Jagirs_ or _Jagirdars."_ But the Act did not supersede the judgement of the High Court. The Board of Revenue was therefore incompetent 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 Reforms and Resumption of Jaj!irs Act 6 of 1952 and Rajas1han Act 18 of 1955. But the Act docs not purport to give retrospective 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 contention. 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 surplusa,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 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 Revenue 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 before the Board of Revenue. In this appeal it is therefore,not 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 binding between the parties. It is, therefore. not open to the 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 appellant 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. ' _•J_ A B ## c D E F G H V.P.S. _A ppea/ dismissed._