Shrimant Sardar Bhujangarao Daulatrao Ghorpade v. Shrimant Malojirao Daulatrao Ghorpade and Others.

BosE J .. PATANJALI SAsTRI C. J. and DAs J. agreed with BQse J.

BosE J.-The plaintiff appeals.

The suit relates to a Saranjam estate in the State of Bombay. The plaintiff claims to' be the sole Saran-jamdar and seeks certain declarations and other reliefs appropriate to such a claim.

The first and second defendants are members of the plaintiff's family while the third defendant is the State of Bombay (Province of Bombay at the date of the suit) • . The only question is whether the suit is barred by section 4(a) of Bombay Act X of 1876 (Bombay Rev-enue Jurisdiction Act).

The following genealogical tree will show the relation-ship between the parties :

Bhujangrao Appasaheb (British Grantee) I Daulatrao I (died 24-7-1864) r--------- ·----.

1 I I Bhujangfao 1 Mal.ojirao Yeshwantrao alias (died 1881) I Annasaheb I . I (widow) Krishnabai Daulatrao III Bhuiangrao II Daulatrao II (Def. 1) (Def. 2) (died 8-5-1931) . I Bhl\langrao III (Plaintiff)

The facts are as follows. A common ancestor of the 1951 _present parties was given the Gajendragad estate as a Saranjam .some time before the advent of the British. Bhunjangrao When they arrived on the scene they decided, as far as Daulatrao. possible, to continue such Sararijams, jagirs and inams v. as had been granted by the earlier rulers, and accord-Malojirao Daulatrao ingly they framed rules under Schedule B, Rule 10 and Others. of ·Bombay Act XI of 1852 (The Bombay Rent Free Estates AGt of 1852) to regulate the mode of recognition Bose/. :::.. :and the succession and conditions of tenure to Saran-

jams, which are analogous to jagirs. In compliance with this, the common ancestor shown at the head of the genealogical tree set out above was recognised by the British Government as the Saranjamdar of the ·Gajendragad estate. He may for convenience be ter-med the British Grantee. The Register Ex. P-53 shows that the estate consisted of 26 villages. We do not know the date of the British recognition but the -J nature of the tenure is described as follows :-

"Continuable to all male legitimate descendants of the holder at the time of British conquest, viz., 'Bhujangrao Appasaheb, the first British Grantee, son of Bahirojirao Ghorpade."

On the death of the British Grantee (Bhujangrao Appasaheb) he was succeeded by his son Daulatrao I who died on the 24th of July, 1864. This Daulatrao I left three sons, Bhujangrao I, Y eshwantrao and Malojirao.

In the year 1866 Bhujangrao I and his brother Y esh-wantrao alia1 Annasaheb sued Malojirao for possession -0£ this Saranjam. A question of impartibility was raised but the Bombay High Court declared that the property in British India was partible. They further declared that Bhujangrao I was the head of the familv and as such was entitled to a special assignment which was not to exceed a quarter share, for the expenses and duties which might devolve on him by virtue of his position, and that after this had been set aside each of the three brothers was entitled to an equal one-third share in the landed property in India. This judgment

1952 is reported in 5 Born. H.C.R. 161. The duties enumerat-

ed at page 170 included the "keeping up of armed Bhunjangrao retainers for the fort of Gajendragad, and for the im· Daulatrao

v. provement of that village, which was the chief seat of Maloiirao this branch of the Ghorpade family, and also to enable Daulatrao him to distribute on ceremonial occasions the custom· and Others. ary presents to the junior members of the family."

The judgment is dated the 12th of October, 1868. Bose/. .... As a consequence a division of the property wa!> effected. Malojirao separated himself from his brothers and was allotted seven villages. The other two brothers continued joint and took the remainder. But this was only with respect to property situate in British India. .The parties also had property in the State of Kolhapur. That was left undivided.

Bhujangrao I died in 1881 and his younger brother Y eshwantrao (alias Annasaheb) claimed to succeed as the sole heir. The Political Department of the Govern-ment of India refused to recognise this claim and per-mitted Bhujangrao I's widow Krishnabai to . adopt a a boy from the family and recognised him as the heir in respect of that portion of the estate which lay within the Principality of Kolhapur. This was on the 3rd of February, 1882. .... The Bombay Government followed a similar course regarding the property in British India. On the 26th of April, 1882, they passed a Resolution embodying the following decision :

( 1) The adoption was to be recognised and the adopted son was to occupy the same position as his adoptive father, that is to ·say, he was to get one-third of tl~e property plus the assignment given · to him as head of the family.

(2) Malojirao who had already taken his share of the estate was to continue in possession.

(3) Yeshwantrao (alias Annasaheb) was given the option of remaining joint with the adopted boy or separating.

Finally, the Resolution concluded-

"The two brothers will hold their respective shares 1952 as their private property in virtue of the decree of the High Court and the J ahagir will henceforth be res-Bhuniangrao. Daulatrao tricted to the portion awarded by the High Court to v. Bhujangrao which the adopted son will now inherit. Malo;irao It should however be clearly understood that the deci-Daulatrao sion of the High Court is not to be held as a precedent and 0 th~rt. and that no partition of the Jahagir Estate to be con-Bos~/. tinued to the adopted son will ever be allowed."

This position was emphasised by Government in the same year on the 22nd August, 1882. Krishnabai, who _. had been allowed by Government to adopt Daulatrao

II, asked that her husband's one-third share in the estate be also treated as private property in the same way as the shares of the other two brothers. This prayer was refused and Government stated :

"It should be plainly understood that Government allow the adoption to be made by her only in considera-tion of Bhujangrao's one-third share as well as the portion assigned to him as head of the family being continued to the adopted son as indivisible Jahagir Estate descending in the line of male heirs in the order of primogeniture and subject to no terms whatsoever as to the enjoyment of the same by Krishnabai during her lifetime."

The position was re-examined by Government in 1891 and its decision was embodied in the following resolution dated the 17th of March, 1891 :

"It appears to Government that the whole Gajendragad Estate is a Saranjam continuable as here-ditary in the fullest sense of the word as interpreted by the Court of Directors in paragraph 9 of their Despatch No. 27 dated 12th' December, 1855. It is continuable to all male legitimate descendants of the holder at the time of the British conquest; and should Government ever sanction an adoption the terms of sanction would be those applicable to Saranjamdars.

The property should be dealt with like other Saranjams in the Political Department."

1952 In the year 1901 the adopted son Daulatrao II sued Bhunjangrao Yeshwantrao's son Bhujangrao II for partition. It D11Hl111rao will be remembered that in the litigation of 1866, which

Y. ended in the Bombay High Court's judgment reported J4R/ojirll0 in 5 Born. H.C.R. 161, Malojirao alone separated DRHlatrao and the other two brothers continued joint. The "'ml Others. litigation of 1901 put an end to that position. The

Bos•], High Court's judgment dated the 12th of March, 1908,

makes it clear · that as Government was not a party to that litigation its rights against either or both of the parties were not affected. But as between the parties inter se they were bound by the previous decisiol'I and so the adopted son was entitled to partition and sepa-rate possession of ~uch properties as might fall to his share. After this decision was given the two partitioned the property between themselves amicably.

In or about the year 1930 a Record of Rights .... was introduced in fourteen of the villages in the Gajendragad Jahagir and a dispute arose again between the three branches of the family. The District Deputy C,ollector, after inspecting the records, found that "the name of the Khatedar Saranjamdar alone has found place in the village Inam register, in the Saranjam list and the land alienation register," while in the other village records the various members of the family were entered according to the "actual wahivat or enjoyment."

After due consideration he thought that the interest of Government and the Saranjamdar would be sufficiently safeguarded by allowing the same position to con6nue. He ordered the entries to be made accordingly. The order also discloses that the matter had been referred to the Legal Remembrancer to the Bombay Government.

In the meanwhile, on the 5th of May, 1898, a set of Rules framed under Schedule B, Rule 10, of the Bombay Rent Free Estates Act of 1852 were drawn up and published in the Bombay Gazette. These Rules were republished, probably with some modification, in the Gazette of 8th July, 1901. The portions applicable here were as follows :-

"I. Saraniams shall ordinarily be continued in 1952 accordance with the decision already passed by Government in each case. Bhuniangrao Daulatrao II. A Saranjam which has been decided to be v. hereditarily continuable shall ordinarily descend to Malo;irao the eldest male representative, in the order of primo-Daulatrao and Others. geniture, of the senior branch of the family descended .:.., from the first British Grantee or any of his brothers who Bo;e / .

were undivided in interest. But Government reserve to themselves their rights for sufficient reason to direct the continuance of the Saranjam to any. other member of the $aid family, or as an act of grace, to a person adopted into the same family with the sanction of Government.

* * V. 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 Government, unencumbered by. any debts, or charges, 5ave such as may be specially imposed by Government itself.

VI. No Saranjam shall be capable of sub-divi-sion ..

VII. Every Saranjamdar shall be responsible for making a suitable provision for the maintenance of .... " (certain members of the family enumerated m the Rule).

IX. 'If an order passed by Government under Rule VII is not carried out, Government may, what-_ ever the reason may be, direct the Saranjam, or a portion of it, to be resumed .... Provision for the members of the Saranjamdar's family entitled to main-tenance shall then be made by Government out of the revenues of the Saranjam so resumed."

After the District Deputy Collector's orders were pas-sed on the 20th of May, 1930, Daulatrao II died on the 8t11 of May, 1931, and the matter was again taken up by Government. This time it passed ilie following

1952 Resolution on the 7th of June, 1932. The Resolution Bhunjangrao was headed, "Resumption and regrant of the Gajend-Dau/atrao ragad Saranjam standing at No. 91 of the Saranjam

v. List." It reads-Malojirao Daulatrao "Resolution :-The Governor-in-Council 1s pleased and Others. to direct that the Gajendragad Saranjam should be

formally resumed and regranted to Bhujangrao Bose /. Daulatrao Ghorpade eldest son of the deceased ...:

Saranjamdar Sardar Daulatrao Bhujangrao 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 posses-sion of the villages of the Saranjam estate which were in possession of the deceased Saranjamdar.

¶2The 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."

The Bhujangrao mentioned in the Resolution is the 1 plaintiff who is shown as Bhujangrao III in the genealogical tree.

The defendants were evidently aggrieved by this, (or they filed Suit No. 23 of 1934 against the present plaintiff and the Secretary of State for India in Council praying inter alia "that the properties in that suit, viz., the villages allotted to their shares, were their independent and private properties and in case they were held to be . Saranjam properties, they be declared as independent Saranjams, separate and distinct from the one held by the present plaintiff."

This suit was withdrawn with liberty to bring a fresh suit on the same cause of action against the present plaintiff but not against the Secretary of State for India in Council. According to defendants 1 and 2, this was pursuant to an arrangement between the Government and themselves that Government would issue a fresh Resolution in terms of the earlier Resolu-tion dated the 17th of March, 1891.

This was done. On the 25th of February, 1936, 1952 Government passed the following Resolution:- Bhunjangrao "Resolution:-After careful consideration the Daulatrao Governor-in-Council 1s pleased to confirm the decision v. in Government Resolution (Political Department) Malojirao Daulatrao No. 1769 dated the 17th of March, 1891, and to declare and Others. that the whole of the Gajendragad Estate shall be continuable as an inalienable and impartible Bose/. Saranjam on the conditions stated in the said Resolution.· Having regard, however, to the manner in which different portions of the estate have been held by different branches of the family, the Governor-in-Council, in modification of the orders contained in Government Resolution No. 8%9 dated the 7th June, 1932, is ?leased to direct that the portions of the said estate held by Sardar Bhujangrao Daulatrao Ghorpade, Daulatrao Malojirao Ghorpade and Bhujangrao Yeshwantrao Ghorpade, respectively, shall henceforth be entered in the Revenue Records as de facto shares in the said estate held by the said persons as repre-sentatives, respectively of three branches of the Ghorpade family. Each of the said de facto shares shall be continuable hereditarily as such as if it were ~ separate Saranjam estate in accordance with the rules made for the continuance of Saranjams by the Governor-in-Council in exercise of the powers referred to in the rules framed under the Bombay Rent Free Estates Act, 1852, and section 2(3) of the Bombay Summary Settlement Act (VII of 1863) and such special orders as the Governor-in-Council may make in regard to the Gajendragad Estate as a whole or in regard to the said share. The recognition of the afore-said shares and their entry in the Revenue Records ~ separate shares shall not be deemed to amoua.t to a recognition of the estate of Gajendragad as in any manner partible or alienable and shall not in any way affect the right of_ Government to treat the said estate as an entire impartible and inalienable Saranjam estate.

¶2The Governor-in-Council further directs that the aforesaid shares shall in no case be capable of

1952 sub-division and shall not in any way be alienated or

encumbered except m accordance with the rules and Bhuniangrao orders referred to above ... "

Daulatrao

v. The present suit 1s an attack on the action of Ma/o;irao Government in passing this Resolution. The first and Daulatrao second defendants are the present representatives of and bthers. the other branches of the family and the third defend-

Bose f. ant is the Province of Bombay (now the State of ....

Bombay). The plaint states- "9. Government can have no . jurisdiction to. deprive the plaintiff at any rate during his lifetime of the full benefit of all the rights and privileges aper-taining to the holder of a Sarani am. The Order of Government of the 8th February, 1936 is, therefore, ultr.a vires and in no way binding on the present plaintiff ..... . .... 10. Defendants 1 and 2, therefore, are not entitled to any rights or privileges claimable by the holder of a Saranjam which according to the G. R. is continu-able 'as an inalienable and . impartible Saranjam', such as for example in the matter of appointment of the village officers m any of the 27 villages appertaining to the Gajendragad Saranjam. - 11. The cause of action a~ose in April 1938 and the resolution and the entry being ultra "titres is not binding ... 12. As this is a suit claiming for relief primarily against defendants I and 2, defendant 3 is made a party to the suit in order to enable Government (defend-ant 3) to give proper effect to the decision of Govern-ment of the 17th March, 1891, and of 7th June, 1932, as against defendants I and 2 who have no right to the position which they claim ... "

The reliefs prayed for are- " (a) That is be declared that defendants I and 2 have no right to go behind the order of the Government as per Resolution No. 8969 of 7th June, 1932, under which plaintiff ·is entitled to be recognised as the sole Saranjamdar in the Revenue Records, and that the assignments held by defendants 1 and 2 are held by them as mere potgi holders.

(b) That in consequence of his position of a sole 1952 Saranjamdar, the plaintiff alone at any rate during his lifetime has the sole right to the rights and privileges Bhuiangr111:1 Daulatrao appertaining to the post of a sole Saranjamdar, to wit, v. to be consulted in the appointment of the village Malojirao officers in all the villages appertaining to the Saranjam Daulatrao estate, but assigned to defendants 1 and 2 for potgi ..• and Other$

( c) Defendants 1 and 2 be restrained from doing Bose /. any acts or taking any steps in contravention of the aforesaid right of the plaintiff.

(d) That it be declared that defendant 3 (Govern-ment) have no right to change the Resolution No. 8969 of 7th June, 1932, and at any rate during the lifetime of the plaintiff."

The first Court dismissed the plaintiff's claim on the merits holding that Government had the right to amend its Resolution in the way it did.

The lower appellate Court also dismissed the suit on three grounds: (1) that the two previous decisions of 1868 and 1908 operate as res iudicata, (2) .that the im-pugned Resolution 1s intra vires and (3) that section 4 (a) and (d) of the Revenue Jurisdiction Act bars the jurisdiction of the Court.

In second appeal the High Court only considered the question of jurisdiction and, agreemg with the lower appellate Court on the point, dismissed the appeal but · it granted the plaintiff leave to appeal to this Court.

The only question we have to consider is the one of jurisdiction. Section 4 of the Bombay Revenue Juris-diction Act, 1876 (Bombay Act X of 1876), runs~

Subject to the exceptions hereinafter appearing, no ........ Civil Court shall exercise jurisdiction as to-

(a) . . . claims against the Crown relating to lands ...

held as Saranjam ... "

It was strenuously contended that this is not a claim against the Crown but one against the first and second defendants. That, m my opinion, is an idle conten-tion in view of paragraphs 9 and 12 of the plaint and reliefs (a) and (d). In any event, Mr. Somayya was asked whether he would strike out the third defendant 4-'--5 S.C. India/71

1952 and those portions of the plaint which sought relief

against it. He said he was not prepared to do so. I Bhujangrao cannot see how a plaintiff can insist on retaining a Daulatrao person against whom he claims no relief as a party. I

v.

Malo;irao am clear that this is a suit against the "Crown" within Daulatrao the meaning of section 4(a).

and Others. The next question is whether, assuming that to be

Bose/. the case, it ts also one "relating to lands held as

Saranjam." So far as the reliefs sought against .... Government are concerned, that . is clearly the case. Paragraph 9 of the plaint challenges Government's jurisdiction to deprive the plaintiff of the full benefit of all rights and privileges appertaining to the holder of a Saranjam. These rights cannot exist apart from the lands which form part of the Saranjam estate and the implication of the prayer is that Government has, for example, no right to resume the Saranjam either under Rule V on the death of the last Saranjamdar or under Rule IX during his lifetime. It 1s to be observed that a resumption under Rule IX can only be of the land because the rule directs that when the Saranjam is resumed Govern-ment itself shall make provisions for the maintenance of those entitled to it "out of the revenues of the Saranjam so resumed." These revenues can only come out of the land.

Relief ( d) in the prayer clause seeks a declaration that Government has no right to change Resolution No. 8969 dated the 7th of June, 1932. That Resolution directly relates to the land because it directs that the Gajendragad Saranjam be resumed and the Collector is directed to take steps to place the Saranjamdar in pos-session of the villages· of the Saran jam estate etc. It is impossible to contend that this is not a claim relating to lands held as Saranjam.

It was next argued that if that be tlte case the claim against Government can be dismissed and the plaintiff can at least be given the reliefs claimed against the other two defendants. These, it was contended, do not relate to land and in any event are not claims against the "Crown".

In my opinion, this is not a suit in which the rights 1952 claimed against the other defendants can be divor-ced from the claim against Government and considered Bhujangrao separately. That is evident enough from paragraph 10 Daulatrao v. of the plaint. In paragraph 9 the power of Govern-Malojirao ment to deprive the plaintiff of the rights he claims is Daulatrao challenged and in paragraph 10 of the plaintiff explains and Others. that "therefore" the first and second defendants are not entitled to of the rights and privileges of the Bose/.

any Saranjamdar. One of those rights, as we · have seen from Rules VII and IX, is to take the revenues of the entire estate in order that he might fulfil his obligation regarding the payment of maintenance to certain members of the family; and if the d~fendants claim to hold their lands under the orders of Government and the plaintiff insists on retaining Government as a party in order that it may be bound by the decree he wants against the other defendants it 1s obvious that his claim against these defendants cannot . be separated from his claim against the Government. •

In any event, if the claim against Government is to be ignored it can only be on the basis that its orders cannot be challenged and if the orders stand it 1s evident that the plaintiff can have no hope of success because both sides hold their respective properties on the basis of those orders.

There are two decisions of the Bombay High Court which have taken this view. Basalingappagouda v.

The Secretary of State for India(1) was a Watan case.

Government had recognised the second defendant as the W atandar. Plaintiff sued Government and the second defendant and sought a declaration and in-junction. On being faced with the dilemma that the suit against Government did not lie because of section 4 (a) (3) of the Bombay Revenue Jurisdiction Act of 1876, he asked the Court, as here, to leave the Government out of consideration and decree his claim against the second defendant alone. The learned Judges held that that would amount to striking out the main relief sought against both the defendants and would entirely

. (I) 28 Born. L.R. 651.

. i . . .

416 SUPREME COURT REPORTS [1952J

1952 change the character of the suit and added that "as "'lo.. Bhujangrao lo1,1g as the Secretary of State is a party to the suit, Daulatrao such a declarat:ton could not be granted."

v. In the other case, Basangauda v. The Secretary of Malojirao State('), Beaumont C. J. and Baker J. took the same Daulatrao view. They said-and Others.

"Mr. Gumaste, who appears for the appellant, says Bos< /. that his claim is not a claim against the Government

but in that case he ought to strike out the Government. He is not prepared to strike out the Government, because if he does they will not be bound by these pro-ceedings and will follow the decision of their revenue tri-bunals. Therefore, he wants to make the Government a party in order tliat they may be bound. But, if they remain a party, it seems to me tha~ there is a claim against them relating to property appertaining to the office of an hereditary officer, although no doubt it is quite true that the appellant does not desire to get any order against the Government as to the way in which the pl'bperty should be dealt with or anything of the sort, and he only wants a declaration as to his title which will bind Government."

They held that the jurisdiction of the courts was ousted.

It was next contended, on the strength of a decision of the Judicial Committee of the Privy Council report-ed in Province of Bombay v. Hormusji Manekji( 2 ), that the courts have jurisdiction to decide whether Government acted· in excess of its powers and that that question must be decided first. In my opinion, this decision does not apply here.

Their Lordships were dealing with a case falling under section 4(b) of the Bombay Revenue Jurisdic-tion Act of 1876. That provides that- ". . . no Civil Court shall exercise jurisdiction as to ..... .

* (b) objections to the amount o~ incidence of any assessment of land revenue authorised by the Provin-cial Government."

(!) 32 Born. L.R. 1370. (2) 74 I.A. 103.

As ·pointed out by Strangman K. C., on behalf of the 1952 plaintiff respondent, "authorised" must mean "duly authorised," and in that particular case the impugned Bhujangrao if Daulatrao .assessment would not be duly authorised the Govern-v. ment Resolution of 11-4-1930 purporting to treat the Malojirao .agreement relied on by the respondent as cancelled and Daulatrao authorising the levy of the full assessment was ultra and Others. ..... vires under section 211 of the Land Revenue Code. Bose/ .

Thus, before the exclusion of the Civil Court's jurisdic-tion under section 4(b) could come into play, the Court had to determine the issue of ultra vires. Consequently, their Lordships held that that question was outside the scope of the bar. But the position here is different.

We are concerned here with section 4(a) and under that no question about an authorised act of Govern- ,... ment arise5. The section is general and bars all "claims

.against the Crown relating to lands.... held as Saranjam." That is to say, even if the Government's act in relation to such lands was ultra vires, a claim impugning the validity of such an act would fall within the scope of the exclusion in clause (a) provided it relates to such land.

There is a difference of opinion in the Bombay High ·Court as to whether section 4 is attracted if the only relief sought against Government is a declaration.

One set of decisions holds that that does not amount "to a "claim against Government." Dattatraya Vish-wanath v. The Secretary of State for lndia(1) is typical ·Of that view. On the other hand, Daulatrao v. Govern-ment of Bombay(2), a case relating to the Gajendragad ·estate, took the ot~er view. In my opinion, the latter ·view is correct.

In my opinion, the decision of the High Court was :right and I would dismiss the appeal with costs.

PATANJALI SASTRI · C. · J.--:J agree .

.S. R. DAs J.-I agree.

Appeal dismissed Agent for the appellant : Ganpat Rai.

Agent for respondents Nos. 1 & 2 : M. S. K. Sastri.

Agent for respondent No. 3 : P. A. Mehta.

(I) I.L.R. 1948 B°.m. 809 at 820. (2) 47 Born. L.R. 214.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 11 of 1950.

Appeal from the judgment and decree of the High Court of Bombay (Bhagwati and Dixit JJ.) dated 16th December, 1948, in Second Appeal No. 1226 of 1945 confirming a judgment and decree of the District Judge of Dharwar in Appeal No. 123 of 1943. The facts of

1952 the case and the arguments of the counsel appear iil

the judgm_ent.

8h#njangrao Da11/atrao B. Somayya and Sanjiva Rao Naidu (N. C. Shaw,

v. with them) for the appellant.

M•lojirao M. C. Setalvad, Attorney-General for India, (V. N. Da14/a1rao and Others. · Lokur, with him) for the respondents Nos. 1 and 2. M. C. Setalvad, Attorney-Genaal for India, ( G. N. Joshi, with him) for respondent No. 3 (the State of Bombay.) 1952. January 30. Judgment was delivered bv