Darbar Shri Vira Vala Surag Vala, Vadia vs The State Of Saurashtra (Now Bombay)

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

Court: Supreme Court of India

Case Number: Petition No. 62 of 1956

Decision Date: 14 April 1960

Coram: J.L. Kapur, Syed Jaffer Imam, S.K. Das, A.K. Sarkar, M. Hidayatullah

In the case titled Darbar Shri Vira Vala Surag Vala, Vadia versus The State of Saurashtra (now Bombay), the Supreme Court of India delivered its judgment on 14 April 1960. The opinion was authored by Justice J. L. Kapur, and the bench was composed of Justices J. L. Kapur, Syed Jaffer Imam, S. K. Das, A. K. Sarkar and M. Hidayatullah. The petitioner was Darbar Shri Vira Vala Surag Vala of Vadia and the respondent was the State of Saurashtra, which later became part of Bombay. The case is reported in 1967 AIR 346 and in 1960 SCR (3) 521, and is cited in later authorities such as R 1981 SC 1829 (116). The central issue concerned a grant made by the ruler of the former State of Vadia to his younger son, the petitioner, in the form of a village held in perpetuity and hereditary enjoyment as “Kapal‑Giras” and described as a “Bhayat” grant. The question before the Court was whether the grant could be resumed by the State after the petitioner succeeded to the rulership, and what the exact meaning of “Bhayat” was in this context. The headnote summarized that succession in Vadia followed primogeniture, and that in 1943 the ruler gave the petitioner a village in perpetuity as a Bhayat grant. After Vadia acceded to the Dominion of India in 1947 and was merged into the State of Saurashtra, the petitioner later became the ruler. The State of Saurashtra then issued a notification rescinding the grant, arguing that it had lapsed upon the petitioner’s accession to the rulership. The petitioner argued that the grant was absolute, unconditional and irrevocable for perpetual enjoyment by his descendants. The Court held that the grant terminated when the petitioner became ruler because the grant was made only to him in his capacity as a Bhayat, meaning a cadet or member of a younger branch of a ruling family, and it ceased when he ceased to be a cadet. Consequently the State was entitled to resume the grant.

The original jurisdiction of the appeal was Petition No. 62 of 1956, filed under Article 32 of the Constitution of India for the enforcement of fundamental rights. Counsel for the petitioner were N. H. Hingorani and A. N. Sinha, while the State was represented by R. Ganapathy Iyer and T. M. Sen. The judgment of the Court was delivered by Justice Kapur. In the introductory factual context, the Court noted that before the integration of the Indian princely states into the Union, the State of Vadia in Kathiawad observed primogeniture for succession to rulership. At that time the ruler was Darbar Saheb Shri Surag Vala Bavavala, who had two sons: the elder Kumar Shri Krishan Kumar, the heir‑apparent, and the younger Kumar Shri Vira Vala Surag Vala, the petitioner. On 5 July 1943, the ruler executed two documents granting the petitioner, in perpetuity and hereditary fashion, the village called “Mota Pithadia” for enjoyment as Kapal‑Giras, described as a Bhayat grant. The term “Bhayat” was explained as denoting a cadet or descendant of a younger branch of a Talukdar’s family where the estate was governed by primogeniture, and “Kapal‑Giras” signified a hereditary appanage. The Court then described the accession of Vadia to the Dominion of India in August 1947, the formation of the United State of Kathiawad (later United State of Saurashtra) on 23 January 1948, and the provisions of the covenant that transferred the assets of the former states, except for the private properties of the rulers, to the new United State while preserving the privy purses of the rulers. This background set the stage for the Court’s analysis of the legal effect of the Bhayat grant after the petitioner succeeded to the rulership and the State’s power to resume the land.

In favour of the petitioner, the former Ruler of Vadia executed a grant that gave him, in perpetuity and by inheritance, the village known as Mota Pithadia. This village was to be enjoyed by the petitioner as a Kapal‑Giras holding in the capacity of a Bhayat. The term Bhayat was explained as designating a cadet or a descendant belonging to a younger branch of a Talukdar’s family, where the State observed the rule of primogeniture. The expression Kapal‑Giras was defined to mean a grant made in appanage, that is, a birth‑right entitlement giving the holder a share in the patrimonial estate. Around August 1947 the State of Vadia acceded to the Dominion of India by signing an instrument of accession that set out the terms of that accession. Subsequently, on 23 January 1948, a number of States situated in the Kathiawad region concluded a covenant that created the United State of Kathiawad, also referred to as the United State of Saurashtra. According to the terms of that covenant, the assets belonging to each participating State, excluding the private property of the respective Ruler, were transferred to become the assets of the United State. The covenant further stipulated that each Ruler would continue to receive a specified sum, known as a privy purse, drawn from the revenues of the United State, would retain ownership of all private property as defined in the agreement, and would preserve all personal privileges, dignities and titles. The Government of India accepted the covenant and gave a guarantee for all its provisions. Because the State of Vadia was a signatory to the covenant, its assets were vested in the United State. On 13 September 1948 the United State of Kathiawad executed a new instrument of accession to the Dominion of India, thereby cancelling the earlier instrument that had been executed by the covenanting States in August 1947. Later, on 13 November 1949, the United State of Kathiawad consented to adopt the Constitution being drafted by the Constituent Assembly of India and agreed that, from the date of its commencement, the Constitution of India would supersede and repeal any other constitutional provisions in force in the United State that were inconsistent with it. When the Constitution of India came into force on 26 January 1950, the United State merged into the Union of India and became the State of Saurashtra, a Part B State under the Constitution. From that moment the United State and its component States ceased to exist as separate entities, and it is undisputed that all assets of the United State vested in the Union of India upon merger. On 27 January 1950 the elder son of the former Ruler, Kumar Shri Krishan Kumar, died, and on 16 May 1950 the Ruler himself passed away. Subsequently, on 12 February 1951 the President of India issued a notification recognizing the petitioner as the Ruler of Vadia effective from 16 May 1950, thereby conferring upon him the Ruler’s rights that the Government of India had pledged to acknowledge. Those rights comprised the privy purse, ownership of private property, and all associated personal privileges, dignities and titles. On 2 July 1951 the Government of the

In the matter, the State of Saurashtra had issued a notification declaring that, because the petitioner had succeeded his father as Ruler, the village of Pithadia should, pending the issuance of final orders, be treated as a Khalsa or Khas village of the State of Saurashtra. At that time the petitioner was a minor, and his mother submitted a representation to the Government protesting against that notification; the Government gave no reply to the protest. Subsequently, on 23 May 1952, the Government of Saurashtra issued another notification. That notification explained that the village of Pithadia in Vadia Taluka of the Madhya Saurashtra District had been granted by Lekh No. 194 dated 5 July 1943, as a Kapal Giras, by the late Ruler Darbar Saheb Suragwala of the former Vadia State to his second son, Shri K. S. Viravala, in the latter’s capacity as a cadet and as an appanage grant. The notification then observed that the late Ruler and his eldest son, Shri K. S. Krishna Kumarsinghji, had predeceased this second son, and that Shri K. S. Viravala had therefore been recognised as the Ruler of the former State of Vadia with effect from 16 May 1950 by the Government of Saurashtra and by the President of India, as recorded in Notification No. PD/MS/20 dated 12 February 1951 of the Government of Saurashtra Revenue Department (Political) and published in the Gazette of Saurashtra. It further noted that, pending that recognition, the Government of Saurashtra had ordered, by Notification No. PD/148/20 dated 2 July 1951 of the Revenue Department (Political), that the village should be treated as a Khalsa village of the State of Saurashtra. The notification then declared that Shri K. S. Viravala’s status as a cadet had ceased and that the purpose of the appanage grant had terminated as a consequence of his being recognised as the Ruler. Accordingly, the grant was deemed to have lapsed and to have reverted to the former Vadia State, now integrated with the State of Saurashtra, with effect from the date of Shri K. S. Viravala’s recognition as Ruler, namely 16 May 1950. The petitioner again lodged a protest against this later notification, but again received no response. On 9 March 1956, he filed the present petition under Article 32 of the Constitution, seeking a writ directing the respondent, the State of Bombay – into which the State of Saurashtra had earlier merged – to withdraw or cancel the notification and to restore the village of Pithadia together with all collections and realisations made by it to the petitioner, and to restrain the respondent from giving effect to the notification. The petitioner contended that the village had been granted to him absolutely and unconditionally for permanent enjoyment from generation to generation, and that the State could not resume it so long as any descendant of the petitioner was alive; he further argued that the President’s recognition of him as Ruler of Vadia did not affect his rights to the village. The respondent, on the other hand, maintained that the grant was not absolute or unconditional but was intended to remain in force only while the petitioner continued to be a cadet of the family, and that, on his recognition as Ruler, the grant had lapsed and the village had reverted to the State.

The respondent argued that the grant to the petitioner was neither absolute nor unconditional; it was to remain effective only while the petitioner continued to be a cadet of the family. According to the respondent, the grant ceased to operate when the petitioner was recognised as the Ruler, because at that point he was no longer a cadet, and consequently the village reverted to the State. The respondent further asserted that, since the Union of India was entitled to all the assets of the former State of Vadia, the village became property of the Union from the date of the petitioner’s recognition as Ruler. The essential issue, therefore, was whether the grant automatically lapsed when the grantee assumed the position of Ruler, a question that depended on the precise terms of the grant. In support of its argument, the respondent cited Captain Webb’s compilation “Political Practice in Kathiawad,” in which Webb defined a “Bhayat” as a cadet or a descendant of a younger branch of a Talukdar’s family where succession followed the rule of primogeniture. The grant in question had been executed by a document known as a Lekh, accompanied by a Hakpatrak, which was a statement of rights prepared by the Darbar for a Bhayat; both documents had been registered before the Agency. The principal provisions of the Lekh were quoted as follows: “Passed by Shree Vadia Darbar Shree Suragvala Bavavala, to long‑lived Kumar Shree Viravala. To wit: the rule of primogeniture (i.e., the system of heir‑apparent and cadets) having been applied to this State, and you being our Kumar (SOD) younger than our eldest Kumar, long‑lived Yuvaraj Shree Krishna Kumar Saheb, you are, by this Lekh, given, as Bhayat, for permanent enjoyment as Kapal Giras, from generation to generation, the village ‘Mota‑Pithadia’, a village of exclusive jurisdiction of this State, which is of our possession, enjoyment and ownership, with its village, Tal (village site), and Sim with all their boundaries, fields, Vadis, Kharo, Kharabo, etc., i.e., with all the boundaries of the said village, as Giras. You may enjoy the revenues thereof from the beginning of the Year Samvat 2000. As Bhayat, a Hakpatrak (statement of rights) thereof, according to procedure, has been given. The same has been attached herewith. You and your heirs and successors may enjoy the same. Map and Field‑Book of this village have been made, true copies whereof have been prepared and given to you.” The Lekh also conferred a number of additional dignities, privileges, amenities and rights on the petitioner. It specified that the petitioner’s marriage would be celebrated at the State’s expense, that the State would arrange for his education, that no duties or taxes would be levied on him for residing in Vadia proper, that any complaint he lodged concerning the Giras – that is, the village granted to him – or any other civil matter would be heard without any court fee, that he would be exempt from personal attendance in civil courts, and that no criminal process could be issued against him without the permission of the Ruler himself. All of these dignities, rights and privileges were described as appropriate to a cadet of the ruling family, and therefore were not intended to apply to a person who held the position of Ruler.

The Court observed that the description “cadet of the Ruler’s family” loses its sense when it is applied to a Ruler. It noted that the Hak Patrak contains a clause reading: “In future even if your descendants are joint or may have divided, any one Bhayat surviving from amongst your descendants shall enjoy the Sudharo Giras and it Shall not revert to the State till any one Bhayat from amongst your descendants is living.” The document further stipulates that the grantee may not sell or mortgage the Giras without the State’s permission. Reading the grant together with the Hak Patrak, the Court held that the combined effect leads to the unavoidable conclusion that the grant is in truth a grant to a cadet of the family and that it benefits him only while he remains a cadet. It stressed that the phrase “given as Bhayat” is not a mere description of the grantee; rather, it reveals the essential character of the grant. The Court rejected the view that the same phrase merely indicates the purpose of the grant and instead affirmed that it describes the nature of the tenure. The grant expressly states that it is “given as Bhayat for permanent enjoyment as Kapal‑Giras,” signifying that the conveyance is an appanage to a cadet and continues from generation to generation so long as any descendant of the original grantee is alive. However, the Court explained, if the grantee ceases to be a younger branch—by becoming heir‑apparent under primogeniture, by losing his status as a cadet, or by any other reason—the grant must terminate. The Court pointed to the rights and liabilities embodied in both the grant and the Hak Patrak, citing the succession clause which provides that even if one Bhayat among the descendants survives, he shall enjoy the Giras and there shall be no reversion to the State. This, the Court said, demonstrates that the grant endures only while a Bhayat exists; in the absence of a Bhayat, the grant lapses. Accordingly, the Court held that no implication need be read into the grant, nor is it necessary to decide whether the petitioner has become a ruler in the same sense as his father, the ruler of Vadia State. Whatever the reason—whether the death of his elder brother or his ascent to a limited constitutional rulership—the petitioner has ceased to be a Bhayat, and because the grant was given as Bhayat for permanent enjoyment as Kapal‑Giras, it has consequently ended. In this view, the petitioner failed to demonstrate any infringement of his fundamental right arising from the notification dated May 23, 1952, and the alleged infringement was therefore unsupported.

In this case the petitioner complained that the State had deprived him of his property and that his claim to the property was founded upon the terms of the grant that had been made to him. The petitioner argued that the grant was an absolute conveyance and therefore any interference by the State would constitute a violation of his fundamental right to property. The Court examined whether the grant was indeed absolute or whether, by its very nature, it included a defeasance clause that would cause the grant to lapse under certain conditions. The Court concluded that the grant was not an absolute grant in the sense asserted by the petitioner; instead the grant was a conveyance that inherently contained a defeasance provision. Because the grant contained such a clause, the petitioner could not maintain his claim on the basis that his fundamental right had been infringed. Accordingly the Court dismissed the petition and ordered that the petition be dismissed with costs. The dismissal of the petition reflected the Court’s finding that no enforceable right remained in the petitioner’s favour under the terms of the grant. The Court therefore found that the relief sought by the petitioner could not be granted because the legal basis of his claim had been extinguished by the inherent conditions of the grant. The order also imposed the costs of the proceedings on the petitioner.