Shrimant Sardar Bhujangarao Daulatrao... vs Shrimant Malojirao Daulatrao Ghorpade... on 30 January, 1952

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 30 January, 1952

Coram: Vivian Bose

In the matter titled Shrimant Sardar Bhujangarao Daulatrao … versus Shrimant Malojirao Daulatrao Ghorpade … decided on 30 January 1952, the Supreme Court of India heard an appeal filed by the plaintiff. The judgment was delivered by the bench headed by Chief Justice Vivian Bose, with Justice Bose authoring the opinion. The plaintiff, identified as Shrimant Sardar Bhujangarao Daulatrao, appealed a decree that originated in a suit concerning a Saranjam estate situated in the former State of Bombay. The plaintiff asserted that he was the sole Saranjamdar of the estate and therefore sought declarations and other reliefs appropriate to that claim. The defendants comprised two members of the plaintiff’s own family, designated as the first and second defendants, and the third defendant, which was the State of Bombay, then referred to as the Province of Bombay at the time the suit was instituted. The sole question presented for determination was whether the suit was barred by section 4(a) of the Bombay Revenue Jurisdiction Act of 1876 (referred to as Bombay Act X of 1876). To clarify the relationships among the parties, the Court set out a genealogical description: the common ancestor, Bhujangrao Appasaheb, a British grantee, was succeeded by Daulatrao I, who died on 24 July 1864; Daulatrao I left three sons—Bhujangrao I, Malojirao, and Yeshwantrao (also known as Annasaheb). The lineage continued with Bhujangrao I’s descendants, including Daulatrao II (the first defendant), and further to Bhujangrao II, Daulatrao III, and so forth, while Malojirao’s line included the plaintiff. The factual backdrop involved the grant of the Gajendragad estate as a Saranjam by a pre-British ruler to the common ancestor. Upon the advent of British administration, the authorities sought to preserve such Saranjams, jagirs, and inams by formulating regulations in Schedule B and specifically invoking Rule 10 of the Bombay Rent-Free Estates Act of 1852 (Bombay Act XI of 1852) to govern recognition, succession, and tenure conditions of Saranjams, which were comparable to jagirs. In accordance with this framework, the British Government acknowledged the common ancestor—identified in the genealogical chart—as the Saranjamdar of the Gajendragad estate; for convenience, this ancestor was termed the British Grantee. The Register, referenced as Exhibit P-53, recorded that the estate comprised a number of villages. Although the exact date of British recognition was not established, the tenure was described as continuing to all male legitimate descendants of the holder at the time of British conquest, namely Bhujangrao Appasaheb, the first British Grantee and son of Bahirojirao Ghorpade.

Following the death of the British Grantee, Bhujangrao Appasaheb, his son Daulatrao I succeeded to the estate and later died on 24 July 1864, leaving three sons: Bhujangrao I, Yeshwantrao (also called Annasaheb), and Malojirao. In 1866, Bhujangrao I and his brother Yeshwantrao instituted a suit against their brother Malojirao to claim possession of the Saranjam. The dispute raised the question of whether the estate was impartible, but the Bombay High Court held that property situated in British India was subject to partition. The Court further declared that Bhujangrao I was the head of the family and consequently entitled to a special assignment not exceeding one quarter of the estate, intended to cover the expenses and duties arising from his position. After setting aside this special assignment, the Court affirmed that each of the three brothers was entitled to an equal one-third share of the landed property located in India. This judgment was reported in volume 5 of the Bombay High Court Reports at page 161 and dated 12 October 1868. The Court enumerated the duties attached to the headship, which included maintaining armed retainers for the fort of Gajendragad, improving the chief village of the family branch, and providing customary ceremonial presents to junior family members. As a result of the decision, the estate was divided: Malojirao separated from his brothers and received seven villages, while Bhujangrao I and Yeshwantrao retained joint ownership of the remaining villages. This division, however, applied only to property situated in British India; the parties also possessed land in the State of Kolhapur, which remained undivided. Subsequently, Bhujangrao I died in 1881, after which his younger brother …

The Court noted that the High Court had ruled that each of the three brothers—Bhujangrao I, Yeshwantrao, and Malojirao—was entitled to an equal one-third share of the landed property situated in British India. The Court explained that this judgment, reported in 5 Bom. H. C. R. 161, also specified that the brother who acted as the head of the family was liable to perform certain duties because of his position. Those duties, enumerated on page 170 of the report, included maintaining armed retainers for the fort of Gajendragad, improving the village that served as the chief seat of the Ghorpade branch, and providing customary ceremonial presents to junior members of the family. The judgment was dated 12 October 1868. Following this decision, a division of the property was carried out. Malojirao chose to separate from his brothers and was allotted seven villages, while the remaining two brothers continued to hold the rest of the property jointly. The division, however, applied only to the estate located in British India; the property that lay within the State of Kolhapur was left undivided.

When Bhujangrao I died in 1881, his younger brother Yeshwantrao (also known as Annasaheb) claimed to succeed as the sole heir. The Political Department of the Government of India declined to recognise that claim and instead permitted Bhujangrao I’s widow, Krishnabai, to adopt a male member of the family, recognising him as the heir to the portion of the estate that fell within the Principality of Kolhapur. This adoption was officially recognised on 3 February 1882. In a similar vein, the Bombay Government issued a resolution on 26 April 1882 concerning the property in British India. That resolution stated three points: first, that the adoption would be recognised and the adopted son would assume the same position as his adoptive father, meaning he would receive one-third of the property together with the special assignment designated for the head of the family; second, that Malojirao, who had already taken his share, would continue in possession of it; and third, that Yeshwantrao (Annasaheb) could either remain joint with the adopted boy or separate from him.

The resolution concluded by declaring that the two brothers would hold their respective shares as private property in accordance with the High Court decree, and that the Jahagir would henceforth be limited to the portion awarded by the High Court to Bhujangrao, which the adopted son would now inherit. It further clarified that the High Court’s decision was not to be regarded as a precedent and that no future partition of the Jahagir Estate in favour of the adopted son would ever be permitted. The Government reiterated this position on 22 August 1882 when Krishnabai, having been authorised to adopt Daulatrao II, petitioned that her husband’s one-third share also be treated as private property like the shares of the other brothers. That request was denied, and the Government maintained that the adoption was to be allowed only in consideration of Bhujangrao’s one-third share and the special assignment attached to his role as head of the family, which were to remain an indivisible Jahagir Estate descending according to male primogeniture.

The Government explained that it would allow an adoption only on the condition that the share belonging to Bhujangrao, together with the portion assigned to him as head of the family, would pass to the adopted son as an indivisible Jahagir Estate. This estate would descend through the male line according to the rule of primogeniture and would be free of any conditions affecting Krishnabai’s enjoyment of the property during her lifetime. The Government revisited this position in 1891 and recorded its decision in a resolution dated 17 March 1891. In that resolution the Government stated that the entire Gajendragad Estate was a continuable Saranjam in the fullest sense, as interpreted by the Court of Directors in paragraph 9 of their Despatch No. 27 of 12 December 1855. The resolution further declared that the estate could continue to all legitimate male descendants of the holder at the time of the British conquest, and that any future adoption sanctioned by the Government would be subject to the same terms applicable to Saranjamdars, with the property to be administered in the same manner as other Saranjams within the Political Department. In 1901 the adopted son, Daulatrao II, brought an action for partition against Yashwantrao’s son, Bhujangrao II. It was noted that the earlier litigation of 1866, reported in the Bombay High Court judgment 5 Bom. H.C.R. 161, had resulted in Malojirao alone obtaining a separate share while the other two brothers remained joint owners. The 1901 suit ended that arrangement. The High Court, in its judgment dated 12 March 1908, clarified that the Government, not being a party to the suit, retained its rights against either litigant, but that the parties to the suit were bound by the earlier decision. Consequently, the adopted son was entitled to a partition and to take separate possession of the portion belonging to him. Following the judgment, the two parties amicably divided the property between themselves. Around 1930 a Record of Rights was prepared for fourteen villages within the Gajendragad Jahagir, and a new dispute arose among the three family branches. The District Deputy Collector examined the records and observed that the name of the Khatedar Saranjamdar appeared alone in the village Inam register, the Saranjam list, and the land-alienation register, whereas other village records listed family members according to actual possession or enjoyment. After careful consideration, the Collector concluded that the interests of both the Government and the Saranjamdar would be protected by maintaining the existing position, and he ordered the entries to be made accordingly. The order also indicated that the matter had been referred to the Legal Remembrancer of the Bombay Government. Meanwhile, on 5 May 1898, a set of rules framed under Schedule B, Rule 10 of the Bombay Rent Free Estates Act of 1852, had been published in the Bombay Gazette, and later republished, with modifications, in the Gazette of 8 July 1901.

The Court noted that under the Free Estates Act of 1852 the Government had drawn up a set of Rules concerning Saranjams, and that these Rules had first been published in the Bombay Gazette and subsequently republished, likely with some alterations, in the Gazette dated 8 July 1901. The portion of those Rules relevant to the present dispute was reproduced. The Rules provided that, ordinarily, a Saranjam would continue in accordance with the decision already made by the Government in each particular case. When a Saranjam had been declared hereditarily continuable, it was to descend to the eldest male representative, following the principle of primogeniture, of the senior branch of the family that descended from the first British Grantee or from any of his brothers who held an undivided interest. The Government, however, reserved to itself the right, for sufficient cause, to direct that the Saranjam continue to any other member of the same family, or, as an act of grace, to a person adopted into the family with Government sanction. Every Saranjam was to be held as a life estate, to be formally resumed on the death of the holder, and where it could be further continued it would be re-granted to the next holder as a fresh grant from the Government, free of any debts or charges except those specially imposed by the Government itself. The Rules expressly prohibited the subdivision of any Saranjam. Each Saranjamdar was required to make suitable provision for the maintenance of certain members of his family as enumerated in the Rule. If the Government-issued order under the maintenance provision was not complied with, the Government could, for any reason, direct that the whole Saranjam or a portion thereof be resumed, and the maintenance provision for the family members would then be met by the Government out of the revenues of the resumed Saranjam. The Court further recorded that after the District Deputy Collector had issued his orders on 20 May 1930, the holder Daulatrao II died on 8 May 1931, and the matter was again taken up by the Government. On 7 June 1932 the Government issued a Resolution titled “Resumption and regrant of the Gajendragad Saranjam standing at No. 91 of the Saranjam List.” The Resolution stated that the Governor-in-Council directed that the Gajendragad Saranjam be formally resumed and re-granted to Bhujangrao Daulatrao Ghorpade, who was the eldest son of the deceased Saranjamdar Sardar Daulatrao Bhujangrao Ghorpade, and that the Saranjam be entered in his sole name in the Collector of Dharwar’s accounts effective from the date of death of the last holder. The Collector was instructed to take steps to place the Saranjamdar in possession of the villages that formed part of the estate and had been in the possession of the deceased. The Resolution also confirmed that the assignments held by the Bhaubands as potgi holders should continue as they were at that time. The Court observed that the Bhujangrao named in the Resolution was the plaintiff appearing before it.

The plaintiff, identified in the genealogical chart as Bhujangrao III, was the successor named in the earlier governmental resolution. The defendants evidently felt dissatisfied with this outcome, and consequently instituted Suit No. 23 of 1934 against the present plaintiff and the Secretary of State for India in Council. In that suit they prayed, inter alia, that the villages allotted to their respective shares be declared to be their independent and private properties, and that if those villages were held to be Saranjam properties, they should be recognized as independent Saranjams, separate and distinct from the Saranjam held by the plaintiff. That suit was later withdrawn, but the withdrawal was made subject to a liberty to institute a fresh suit on the same cause of action against the plaintiff, while expressly excluding any further claim against the Secretary of State for India in Council. According to the first and second defendants, the withdrawal was undertaken pursuant to an arrangement they had reached with the Government, under which the Government promised to issue a fresh resolution that would incorporate the terms of the earlier resolution dated 17 March 1891.

That promise was fulfilled when, on 25 February 1936, the Government issued a new resolution. The resolution began by stating that, after careful consideration, the Governor-in-Council was pleased to confirm the decision contained in Government Resolution (Political Department) No. 1769 dated 17 March 1891, and to declare that the entire Gajendragad Estate would continue to exist as an inalienable and impartible Saranjam on the conditions specified in the earlier resolution. The resolution further observed that, because different portions of the estate had been held by different branches of the family, the Governor-in-Council, in modifying the orders contained in Government Resolution No. 8969 dated 7 June 1932, directed that the portions of the estate held by Sardar Bhujangrao Daulatrao Ghorpade, Daulatrao Malojirao Ghorpade and Bhujangrao Yeshwantrao Ghorpade be entered in the revenue records as de facto shares belonging respectively to three distinct branches of the Ghorpade family. Each of those de facto shares was declared to be continuable hereditarily as if it were a separate Saranjam estate, in accordance with the rules made for the continuance of Saranjams by the Governor-in-Council under the powers conferred by the Bombay Rent-Free Estates Act, 1852, and section 2(3) of the Bombay Summary Settlement Act (VII of 1863), as well as any special orders that the Governor-in-Council might issue concerning the Gajendragad Estate as a whole or any individual share. The resolution expressly clarified that recognising these shares and entering them separately in the revenue records would not be deemed to constitute a recognition that the Gajendragad Estate was in any way partible or alienable, nor would it affect the Government’s right to treat the estate as an entire impartible and inalienable Saranjam. Finally, the Governor-in-Council directed that the identified shares could not be subdivided or alienated in any manner, except in accordance with the rules and special orders mentioned above.

In this case, the Court observed that the suit was brought to challenge a resolution passed by the Government and that the first and second defendants represented other branches of the family while the third defendant was the Province of Bombay, now the State of Bombay. The plaint asserted that the Government possessed no authority to deprive the plaintiff during his lifetime of the full benefit of all the rights and privileges belonging to the holder of a Saranjam, and therefore declared the Order of Government dated 8 February 1930 to be ultra vires and not binding on the plaintiff. It further contended that the first and second defendants were not entitled to any right or privilege claimable by the holder of a Saranjam, which, according to the governing regulations, was continuable only as an inalienable and impartible Saranjam, for example with respect to the appointment of village officers in any of the twenty-seven villages forming part of the Gajendragad Saranjam. The plaint stated that the cause of action arose in April 1938 and that the resolution and the entry, being ultra vires, could not bind the plaintiff. Because the suit primarily sought relief against the first and second defendants, the third defendant was impleaded so that the Government could give effect to its own decisions of 17 March 1891 and 7 June 1932 against the first and second defendants, who, the plaint claimed, had no right to the position they asserted. The reliefs prayed for were as follows: (a) a declaration that the first and second defendants had no authority to disregard the Government order issued under Resolution No 8969 of 7 June 1932, which recognised the plaintiff as the sole Saranjamdar in the Revenue Records and characterised the assignments held by the first and second defendants merely as potgi holdings; (b) a declaration that, by virtue of his status as sole Saranjamdar, the plaintiff alone during his lifetime possessed the exclusive right to the privileges of that office, including the right to be consulted on the appointment of village officers in all villages forming part of the Saranjam estate, even though those villages were assigned to the first and second defendants as potgi; (c) an injunction restraining the first and second defendants from performing any act or taking any step that would contravene the plaintiff’s aforesaid right; and (d) a declaration that the third defendant, the Government, had no power to alter Resolution No 8969 of 7 June 1932, and that such resolution would remain in force throughout the plaintiff’s lifetime. The trial court dismissed the plaintiff’s claim on the merits, holding that the Government had the authority to amend its resolution in the manner it had done. The lower appellate court affirmed the dismissal on three grounds: first, that the earlier decisions of 1868 and 1908 operated as res judicata; second, that the impugned resolution was intra vires; and third, that sections 4(a) and (d) of the Revenue Jurisdiction Act barred the Court’s jurisdiction over the matter.

The Court observed that the two earlier decisions rendered in 1868 and 1908 operated as res judicata, that the impugned Resolution was intra vires, and that sections 4(a) and 4(d) of the Revenue Jurisdiction Act barred the civil court’s jurisdiction. In the second appeal, the High Court confined its consideration solely to the question of jurisdiction, concurred with the lower appellate court on that point, dismissed the appeal and, nevertheless, granted the plaintiff leave to appeal to this Court. Consequently, the only issue for determination before this Court was the question of jurisdiction. Section 4 of the Bombay Revenue Jurisdiction Act, 1876 (Bombay Act X of 1876) provides, subject to the exceptions that follow, that no civil court shall exercise jurisdiction over claims against the Crown relating to lands held as Saranjam. It was vigorously submitted that the present suit was not a claim against the Crown but rather a claim against the first and second defendants. The Court rejected that submission as idle, relying on paragraphs 9 and 12 of the plaint and on reliefs (a) and (d). The Court further noted that counsel was asked whether the third defendant and the portions of the plaint seeking relief against him could be struck out; counsel declined to do so. The Court could not accept a plaintiff’s insistence on retaining as a party a person against whom no relief is claimed. Accordingly, the Court held that the suit was indeed a suit against the “Crown” within the meaning of section 4(a).

The Court then turned to the second aspect of the jurisdictional inquiry: whether the suit also fell within the category of a claim “relating to lands held as Saranjam”. Regarding the reliefs sought against the Government, the Court found that the claim undeniably related to such lands. Paragraph 9 of the plaint challenges the Government’s authority to deprive the plaintiff of the full benefit of all rights and privileges that belong to a Saranjam holder. Those rights cannot exist apart from the lands that constitute the Saranjam estate, and the prayer implies that the Government has no power, for example, to resume the Saranjam either under Rule V on the death of the last Saranjamdar or under Rule IX during his lifetime. The Court further explained that a resumption under Rule IX can affect only land because the rule mandates that, upon resumption, the Government must provide for the maintenance of those entitled “out of the revenues of the Saranjam so resumed”, and such revenues can arise only from the land itself. Relief (d) in the prayer seeks a declaration that the Government lacks the right to alter Resolution No. 8969 dated 7 June 1932. That Resolution directly concerns the land because it orders the resumption of the Gajendragad Saranjam and directs the Collector to take steps to place the Saranjamdar in possession of the villages forming the Saranjam estate. The Court concluded that it was impossible to argue that the claim did not relate to lands held as Saranjam.

In this proceeding the plaintiff asserted a claim that related to lands held as a Saranjam. It was subsequently contended that, if the claim against the Government were to be dismissed, the plaintiff should at least be granted the reliefs that he sought against the other two defendants. The argument advanced was that those reliefs did not involve any interest in land and, moreover, did not constitute claims against the Crown. The Court, however, rejected the notion that the suit could be separated into a distinct claim against the Government and a separate claim against the remaining defendants. This conclusion is supported by the language of paragraph ten of the plaint, which follows the pleading in paragraph nine where the plaintiff challenges the Government’s authority to deprive him of the rights he alleges. In paragraph ten the plaintiff states that, consequently, the first and second defendants are not entitled to any of the rights and privileges that belong to a Saranjamdar. One such right, as derived from Rules VII and IX, is the entitlement to collect the revenues of the whole estate so that the Saranjamdar may meet his obligation of paying maintenance to certain family members. Because the defendants claim to hold their lands under orders issued by the Government, and because the plaintiff insists on keeping the Government as a party so that it may be bound by any decree issued against the other defendants, it follows that the plaintiff’s claim against those defendants cannot be disentangled from his claim against the Government. The reliefs sought against the first and second defendants are therefore intrinsically linked to the relief sought against the Government.

The Court further observed that to disregard the claim against the Government would be permissible only on the ground that the Government’s orders are not subject to challenge. If those orders remain in force, the plaintiff would have no realistic prospect of success, since both the plaintiff and the defendants rely on the same governmental orders to justify their respective holdings. The Court cited two decisions of the Bombay High Court that adopted a similar view. In Basalingappagouda v. The Secretary of State for India (28 Bom. L.R. 651), a Watan case, the Government had recognized the second defendant as the Watandar. The plaintiff had sued both the Government and the second defendant, seeking a declaration and an injunction. When it was pointed out that the suit against the Government could not proceed under section 4(a)(3) of the Bombay Revenue Jurisdiction Act, 1876, the plaintiff asked that the Court disregard the Government and decide only the claim against the second defendant. The judges held that such a course would amount to striking out the principal relief sought against both defendants, thereby altering the nature of the suit, and they added that “as long as the Secretary of State is a party to the suit, such a declaration could not be granted.” In the subsequent case of Basangauda v. The Secretary of State (32 Bom. L.R. 1370), Chief Justice Beaumont and Justice Baker arrived at the same conclusion, affirming that the jurisdiction of the courts was ousted when the Government remained a party to the proceedings.

The counsel argued that the suit should not strike out the Government because removing the Government as a party would allow it to ignore the proceedings and continue to follow the decisions of its revenue tribunals. Consequently, the counsel insisted that the Government be kept as a party so that it would be bound by any judgment. Nevertheless, the counsel acknowledged that, even with the Government remaining a party, the claim essentially concerned property attached to the office of a hereditary officer. The counsel further emphasized that, although the appellant did not seek any order directing the Government on how to manage the property, the sole relief desired was a declaration of the appellant’s title, a declaration that would bind the Government.

The Court noted that the earlier judges had held that the jurisdiction of the courts was ousted in comparable circumstances. It was subsequently argued, relying on the Judicial Committee of the Privy Council decision in Province of Bombay v. Hormusji Manekji (74 I.A. 103), that the courts possessed jurisdiction to determine whether the Government had acted beyond its powers and that this question should be decided first. The Court disagreed, holding that the Privy Council decision did not apply to the present matter.

The Court observed that the Privy Council judges were dealing with a case governed by section 4(b) of the Bombay Revenue Jurisdiction Act, 1876, which provides that no civil court shall exercise jurisdiction over objections to the amount or incidence of any assessment of land revenue authorised by the Provincial Government. Counsel for the plaintiff-respondent, Strangman K. C., submitted that “authorised” should be read as “duly authorised.” He argued that the assessment under challenge would not be duly authorised because the Government resolution dated 11-4-1930, which purported to treat the agreement relied upon by the respondent as cancelled and to authorise the full assessment, was ultra vires under section 211 of the Land Revenue Code. Accordingly, before the jurisdictional bar in section 4(b) could take effect, the Court had to determine the ultra vires issue. The Privy Council judges had therefore held that the question of ultra vires lay outside the scope of the bar.

The Court distinguished the present case, stating that it concerned section 4(a) of the same Act, which bars any claim against the Crown relating to lands held as Saranjam, irrespective of whether the Government’s act was authorised. The Court explained that even if the Government’s act concerning such lands were ultra vires, a claim challenging the validity of that act would still fall within the exclusion created by clause (a), provided the land in question is involved. The Court then noted a split of opinion in the Bombay High Court on whether section 4 is triggered when the only relief sought against the Government is a declaration. One line of authority held that a declaration does not constitute a claim against the Government, a view expressed in Dattatraya Vishwanath v. The Secretary of State for India, I.L.R. 1948 Bom. 809 at 820. The opposite view, expressed in Daulatrao v. Government of Bombay (47 Bom. L.R. 214), was favoured by the Court, which concluded that the latter approach was correct.

The Court referred to the decision in Dattatraya Vishwanath v. The Secretary of State for India, reported in I.L.R. 1948 Bom. 809 at 820, as an illustration of the view that a claim against the Government was not covered by the statutory bar. Conversely, the Court noted the judgment in Daulatrao v. Government of Bombay, reported in 47 Bom. L.R. 214, which concerned the Gajendragad estate and adopted the opposite position. After considering both authorities, the Court expressed the opinion that the view expressed in Daulatrao v. Government of Bombay was the correct interpretation of the statutory provision. Accordingly, the Court held that the decision of the High Court was proper. The Court therefore ordered that the appeal be dismissed and that costs be awarded against the appellant. The Chief Justice, Patanjali Sastri, recorded this conclusion. Justice S.R. Das concurred with the Chief Justice’s assessment, and another judge also expressed agreement. Finally, the Court entered an order that the appeal was dismissed.