Shrimant Dattajirao Bahirojirao... vs Shrimant Vijayasinhrao And Anr.

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 29 April, 1960

Coram: A.K. Sarkar, M. Hidayatullah, S.K. Das

In the matter titled Shrimant Dattajirao Bahirojirao … versus Shrimant Vijayasinhrao and another, decided on 29 April 1960, the Supreme Court of India delivered a judgment authored by Justice S.K. Das, with the bench comprising Justices A.K. Sarkar, M. Hidayatullah and S.K. Das. The case arose as an appeal filed under a certificate issued by the High Court of Bombay, challenging the High Court’s decree dated 12 November 1952, which had set aside the order of the Civil Judge, First Class, at Dharwar rendered on 20 April 1949 in Special Civil Suit No. 16 of 1943.

The material facts concerned a Saranjam estate known as the Gajendragad Saranjam, numbered 91 in the Government‑maintained Saranjam list, situated in Gajendragad Taluk of Ron in Dharwar District. Within this estate lay the village of Dindur and Survey Field No. 302 of Unachgeri, which formed the subject of the litigation. At the relevant time the estate was held by Bhujangarao Daulatrao Ghorpade. In 1932 the Government of Bombay rescinded and re‑granted the Saranjam to him by way of Resolution No. 8969 dated 7 June 1932, issued by the Political Department. The resolution stated: “The Governor in Council is pleased to direct that the Gajendragad Saranjam should be formally resumed and re‑granted to Bhujangarao Daulatrao Ghorpade, the eldest son of the deceased Saranjamdar Daulatrao Bhujangarao 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 possession of the villages of the Saranjam estate which were in possession of the deceased Saranjamdar. The 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.”

Among the younger branches of the Ghorpade family was Babasaheb Bahirojirao Ghorpade, hereafter referred to as Babasaheb. He possessed, by maintenance as a potgi holder, the village of Dindur and Survey Field No. 302 of Unachgeri. Babasaheb’s undivided brother, Dattajirao, was defendant No. 2 in the original suit and is the appellant before this Court; for convenience the Court will refer to him simply as the appellant. Babasaheb died on 14 May 1940, leaving a widow named Abayabai and his undivided brother. On 10 July 1941, Abayabai adopted Vijayasinhrao as a son of her deceased husband. Vijayasinhrao, the plaintiff who instituted the suit, is now the principal respondent before this Court; the Court will call him the plaintiff‑respondent. He was the natural son of Bhujangarao’s younger brother, another Dattajirao, who must be distinguished from the appellant despite sharing the same name. Following Babasaheb’s death, Abayabai applied to the Government for sanction to adopt a boy; this application was contested by the appellant.

On December 17, 1941 the Government of Bombay issued a Resolution containing four separate directives. The first directive required that the Saranjam potgi holding comprising the village of Dindur and Survey No. 302 of Unachgeri, which had been allocated for maintenance to the deceased potgidar Mr Babasaheb Bahirajirao Ghorpade at the time of the re‑grant of the Gajendragad Saranjam, should now be continued to his undivided brother, Mr Dattajirao Bahirojirao Ghorpade. The second directive, made under Rule 7 of the Saranjam Rules, instructed the new potgidar, Mr Dattajirao Bahirojirao Ghorpade, to pay to Bai Abaibai, the widow of the late potgidar Mr Babasaheb Bahirajirao Ghorpade, an annual maintenance allowance of three hundred rupees for the duration of her life. The third directive specified that these orders were to take effect from May 14, 1940, the date on which the deceased potgidar had died. The fourth directive directed that the Commissioner of S.D. should be requested to communicate these orders to Bai Abaibai, referring to her petitions addressed to him, and also to the Rayats of Dindur, referring to their petition dated May 12, 1941, and that the same orders should be communicated to the then‑present Saranjamdar of Gajendragad.

On February 8, 1943 the plaintiff‑respondent instituted a suit in which the Province of Bombay was named as defendant No. 1, the appellant (the undivided brother of the deceased potgidar) as defendant No. 2, and Abayabai as defendant No. 3. The Province of Bombay, now succeeded by the State of Bombay, and the appellant contested the suit, while Abayabai initially supported the plaintiff‑respondent’s claim but died before the suit could be concluded. The plaintiff‑respondent asserted that, by reason of his adoption, the estate of his deceased adoptive father had devolved upon him under the rule of lineal primogeniture, thereby giving him a better right to the property than the appellant. The principal plea set out in paragraph 6 of the plaint declared the 1941 Government Resolution ultra vires and void for two reasons. First, it argued that the Government in 1932 had re‑granted the Saranjam estate to Shrimant Sardar Bhujangarao Ghorpade, and that, according to the Government, the suit properties had been continued to the plaintiff’s adoptive father; the plaintiff‑respondent claimed that under the Saranjam Rules there had been no occasion for Government interference at that stage, that the re‑grant would remain effective only during the lifetime of Shrimant Sardar Bhujangarao Ghorpade, and that the Government had failed to consult him before issuing the 1941 Resolution. Second, the plaintiff‑respondent contended that the family custom governed succession by the rule of lineal primogeniture, so that after the death of his adoptive father and his own adoption, the entire estate vested in him in preference to defendant No. 2, and that the Government’s action in disregarding this customary rule was ultra vires and void.

In the proceedings, the plaintiff‑respondent sought three specific reliefs: the recovery of possession of the disputed properties from the appellant, the receipt of mense profits generated by those properties, and an award of costs incurred in the suit. In response, the Province of Bombay, acting through the appellant, raised several pleas in its defence. The primary defence pleaded that, even if the plaintiff‑respondent’s adoption were valid, he possessed no legal entitlement to the properties because, according to the applicable Saranjam Rules, the interest held by Babasaheb terminated upon his death and did not pass to the plaintiff‑respondent despite the Government Resolution dated 17 December 1941. A second defence asserted that the alleged family custom concerning succession did not extend to maintenance grants, and a third defence contended that the suit was barred by section 4 of the Bombay Revenue Jurisdiction Act, 1876. Additionally, the appellant supported the foregoing pleas by alleging that the adoption of the plaintiff‑respondent was not valid, asserting that Abayabai had been expressly prohibited by her husband from adopting a son.

The pleadings gave rise to several material issues, and the trial court initially dismissed the suit on a preliminary ground, holding that the plaint failed to disclose any cause of action. The learned Civil Judge reasoned that the properties were subject to the Saranjam Rules and, after examining those rules, concluded that because the plaintiff‑respondent, by virtue of his adoption, became a nephew of the appellant and was thus claiming maintenance, he was required to plead the specific circumstances under which members of a Saranjam family may claim maintenance under Rule 7 of those rules. Since the plaintiff‑respondent did not set out such circumstances, the judge held that the plaint disclosed no actionable claim. On appeal, the High Court correctly observed that the plaintiff‑respondent had not asserted a maintenance claim under Rule 7 but had instead contended that the disputed properties devolved upon him by reason of his adoption and the custom of lineal primogeniture. Consequently, the High Court concluded that the plaintiff‑respondent’s claim was substantially more fundamental than a mere maintenance claim, and that the trial judge had misdirected himself regarding the true scope of the suit. The High Court therefore set aside the dismissal decree and ordered that the suit be tried on all the issues raised.

Following the High Court’s direction, the learned Civil Judge proceeded to hear all the matters. The first two issues concerned the adoption itself: whether the ceremony of adoption had been properly proved, and whether Babasaheb, during his lifetime, had prohibited his wife from effecting an adoption. On the first question, the trial judge found in favour of the plaintiff‑respondent, accepting the validity of the adoption. On the second question, the judge ruled against the plaintiff‑respondent, concluding that Babasaheb had indeed prohibited the adoption. The High Court affirmed the finding on the first issue, confirming that the adoption was proved, but upon a careful and detailed examination of the evidence, it held that the trial judge was mistaken on the second issue. The appellate court determined that there was no prohibition by Babasaheb, and therefore the adoption was valid. This finding of the High Court was not regarded as open to successful challenge before the Supreme Court, and the appeal proceeded on the basis that the plaintiff‑respondent had been validly adopted by Abayabai on 10 July 1941.

The Court observed that the lower Civil Judge had erred in concluding that the adoption was void because of an alleged prohibition imposed by Babasaheb. The High Court had previously determined that no such prohibition existed and that the adoption was therefore valid. The Court expressed the view that this determination of the High Court could not be successfully challenged before it, and consequently the appeal was to be considered on the premise that the plaintiff‑respondent had been lawfully adopted by Abayabai on 10 July 1941. The Court then set out the questions that were essential for resolving the appeal. The first question (Issue No. 3) required a determination of whether the plaintiff‑respondent had established his title to the property that was the subject of the suit. The second question (Issue No. 4) asked whether the Government Resolution identified as D.G. No. 8969 dated 17 December 1941 was ultra vires, and consequently void, as alleged in the plaint. The third question (Issue No. 5) concerned whether the suit was barred by the provisions of section 4 of the Bombay Revenue Jurisdiction Act, 1876. The fourth question (Issue No. 7) sought to know whether the custom described in paragraph 6(b) of the plaint had been proved. On all of these points the learned Civil Judge had decided against the plaintiff‑respondent. He held that the plaintiff‑respondent was not entitled to recover possession of the suit properties, that he had failed to prove the custom pleaded in paragraph 6(b), that the Government Resolution of 17 December 1941 was not ultra vires, and that the suit was barred under section 4 of the Bombay Revenue Jurisdiction Act, 1876. The High Court, however, set aside each of those findings. It held that the properties in dispute had been granted to the junior branch of Babasaheb for its maintenance, that they were impartible and governed by the rule of lineal primogeniture, and that consequently they passed to the appellant upon Babasaheb’s death. The High Court further concluded that the valid adoption made by Babasaheb’s widow divested the appellant of those properties and that, because the plaintiff‑respondent became the senior member of Babasaheb’s family, he acquired the right to the properties by reason of the combined operation of the family custom and ordinary Hindu law. In that view, the High Court found no issue with the validity of the Government Resolution dated 17 December 1941, noted that no relief for possession had been claimed against the Government, and therefore determined that the suit was not barred by section 4 of the Bombay Revenue Jurisdiction Act, 1876. On behalf of the appellant, counsel argued forcefully that the High Court erred in holding that the suit properties, which form part of a Saranjam, vested in the appellant upon Babasaheb’s death and were subsequently divested by the plaintiff‑respondent’s adoption. The argument asserted that such a conclusion conflicted with the nature of Saranjam tenure and that, since the properties had vested in the appellant by virtue of the re‑grant dated 17 December 1941, they could not be divested by a subsequent adoption.

It was observed that the adoption claimed by the plaintiff‑respondent was not made on July 10, 1941, and that the custom pleaded in paragraph 6(b) of the plaint, even if established, did not necessarily entail that the properties in dispute, once vested in the appellant, would be divested by a valid adoption. The appellant further argued that the High Court erred in holding that no claim existed against the Government within the meaning of the fourth sub‑clause of section 4(a) of the Bombay Revenue Jurisdiction Act, 1876. The appellant asserted that such a claim did exist and that no civil court possessed jurisdiction to determine it. The Court was satisfied that these arguments were correct and should be accepted.

The plaintiff‑respondent’s claim that the properties in suit devolved upon him by virtue of his adoption can be examined either under the Saranjam Rules or under the custom referred to in paragraph 6(b) of the plaint. The Court first considered the claim under the Saranjam Rules, assuming that those rules apply as far as practicable to maintenance grants, known as “potgis,” within the Saranjam. In the Resolution of June 7, 1932, the Government of Bombay treated the potgi holders as being within the Saranjam and provided for them accordingly. The later Resolution of December 17, 1941 proceeded on the same footing. Earlier Resolutions, one dated 1891 (Exhibit 100) and another dated 1936 (Exhibit 101), also treated the whole of Gajendragad and its parts as a Saranjam. During his lifetime, Babasaheb sought to surrender the grant in his favour to the Saranjamdar, but the Government refused to accept such relinquishment. Moreover, Abayabai applied to the Government for permission to adopt a boy, a permission which was not granted. These circumstances demonstrate that the potgi holding formed part of the Saranjam and was regarded as such by all concerned parties.

The Court then explained the meaning of a “Saranjam.” The term literally denotes apparatus, provisions or materials. In Wilson’s Glossary, Saranjam is defined as temporary assignments of revenue from villages or lands for the support of troops or for personal service, usually for the lifetime of the grantees. Dr. G. D. Patel, in his work “The Indian Land Problem and Legislation,” quoted Col. Etheridge’s preface to the Saranjam List, stating that both Muslim and Maratha governments maintained a feudal aristocracy for state purposes by temporary revenue assignments for troop support, personal service, maintenance of official dignity, or other specific reasons. Holders of such lands were entrusted with powers to collect and appropriate revenue and to administer general management of the lands. Under Muslim rule these holdings were called “Jahagirs,” and under Maratha rule they

The Court noted that the term “Saranjam” had originally been applied to certain land grants, but during the Maratha era the distinction between Saranjam and the earlier Jahagir tenures disappeared. When British rule was established, the practical difference between a Jahagir and a Saranjam was considered to have vanished entirely, and the two expressions became interchangeable. Consequently, all such land grants were thereafter generally referred to as “saranjam”. The Court further observed that, while Saranjam grants were primarily found in the Deccan region, similar political grants existed in various other parts of the State. The origins of those other grants were not materially different from the origins of the Saranjam grants, and because of this similarity the British administration placed them under the same statutory framework, which it termed the “Saranjam Rules”. The Court then explained that the Saranjam Rules were promulgated by the Provincial Government under the authority granted by rule 10 of Schedule B of Act XI of 1852 and by the second sub‑clause of clause 3 of section 2 of the Bombay Act VII of 1863. For the purpose of the judgment, the Court reproduced several of those Rules. Rule 1 provided that a Saranjam should normally continue according to a decision that had already been made or that might be made in the future by the Provincial Government in each individual case. Rule 2 stated that if a Saranjam was declared hereditarily continuable, it would normally pass to the eldest male heir in the order of primogeniture from the senior branch of the family descended from the first British grantee or from any of his brothers who held an undivided interest. However, the Provincial Government retained, for sufficient cause, the power either to direct the continuation of the Saranjam to another member of that family or, as an act of grace, to a person adopted into the family with the Government’s approval. When a Saranjam was therefore continued to an adopted son, the adopted son was required to pay the Provincial Government a nazarana not exceeding the value of one year’s revenue from the Saranjam, payable in instalments as directed by the Government. Rule 5 declared that every Saranjam was to be held as a life estate, to be formally resumed upon the holder’s death, and, where the grant could continue, to be re‑granted to the next holder as a fresh grant from the Provincial Government free of any debts or charges except those specially imposed by the Government itself. Rule 7 imposed on every saranjamdar the duty to make suitable provisions for the maintenance of the widow or widows of the preceding saranjamdar, his own brothers, or any other family member who, because of infancy, mental or physical disability, could not earn a living and therefore deserved support. If a saranjamdar failed to fulfill this obligation, the Provincial Government could order him to provide appropriate maintenance and could fix the amount to be paid in each case, subject to the condition that no person who possessed independent means or who, in the Government’s opinion, was otherwise adequately provided for, could claim maintenance from the saranjamdar.

It was stated that a person who possessed independent means, or who, in the opinion of the Provincial Government, was otherwise adequately provided for, could not claim maintenance from the Saranjamdar. Rule 8 further provided that any order issued by the Provincial Government under the preceding rule for maintenance by a Saranjamdar would remain in force only for the lifetime of the Saranjamdar.

The true character of a Saranjam tenure had been examined by a Full Bench of the Bombay High Court in Daulatrao Malojirao v. Province of Bombay ((1946) 49 Bom. L.R. 270). In that decision, after referring to the earlier authorities in Shekh Sultan Sani v. Shekh Ajmodin ((1892) L.R. 20 I.A. 50) and Raghojirao v. Laxmanrao ((1912) 14 Bom. L.R. 1226), the judges observed: “An examination of the authorities, makes it clear that the whole structure of a Saranjam tenure is founded in the sovereign right, which can only change by conquest or by treaty. So founded, jagirs and Saranjams, with the feudal incidents connected with them, are granted or withheld at the will and pleasure of the sovereign power, and, if granted, the fixity of tenure is always subject to interruption and revocation by resumption, be it temporary or absolute in character. No incident normally applicable to private rights between subject and subject can fetter or disturb the sovereign will.”

Applying that principle, the judgment found that the Saranjam Rules supplied no legal foundation for the claim advanced by the plaintiff‑respondent. The plaintiff‑respondent, Abayabai, had sought official sanction to adopt a boy, but such sanction was never granted. Upon the death of Babasaheb, the Government possessed the authority to resume the grant, and by a resolution dated 17 December 1941 it directed that the Saranjam potgi holding of village Dindur and Survey No. 302 of Unachgeri should be continued to the appellant. This action effectively constituted a resumption followed by a fresh grant, contrary to the view expressed by the High Court that the order merely recognized a succession position and was comparable to an ordinary mutation order.

The High Court had emphasised the word “continued” in the 17 December 1941 resolution and contrasted it with an earlier resolution of 7 June 1932, which it described as a clear instance of resumption and regrant of the Gajendragad Saranjam. However, the judgment noted that the earlier resolution also employed the term “continued” when referring to maintenance grants, specifically the potgi holdings within a Saranjam. Consequently, reliance on the term “continued” did not determine the legal effect of the later resolution. When the 17 December 1941 resolution was read in its entirety, it was evident that the potgi of village Dindur and Survey field No. 302 of Unachgeri was granted to the present appellant. The Government was within its power to issue such an order, and there were no grounds to declare it null and void.

The High Court had not declared the order invalid; on the contrary, it had affirmed its validity and its operation from the date of Babasaheb’s death. Nevertheless, the High Court erred, in the view of this judgment, by concluding that the subsequent adoption by Abayabai terminated the effect of the order. It was pertinent to recall that the adoption occurred on 10 July 1941, whereas the resolution was issued on 17 December 1941, albeit with retrospective effect from Babasaheb’s death. There was no reason to believe that a valid Government order would lose its effect because of an unsanctioned private adoption. To hold otherwise would contradict the essential nature of a Saranjam tenure.

Having addressed the statutory and governmental aspects, the judgment turned to the claim of the plaintiff‑respondent based on the custom alleged in paragraph 6(b) of the plaint. The custom pleaded was

The Court observed that the High Court had not characterized the Government order as invalid; rather, it had held the order to be a valid and operative instrument taking effect from the death of Babasaheb. Nevertheless, the High Court erroneously concluded, in the view of this Court, that the later event of an adoption caused the order to lose all practical effect from the moment of that adoption. The Court emphasized the chronology of events, noting that the adoption occurred on July 10 1941, whereas the Resolution authorizing the grant was issued on December 17 1941, albeit with retrospective operation from the date of Babasaheb’s death. The Court found no justification for the proposition that a lawful Government order could be rendered ineffective merely because a private individual, namely Abayabai, effected an adoption without any Government sanction. To hold that the Government’s order would be extinguished by the act of a private party would, according to the Court, contradict the very nature of a Saranjam tenure, which rests on the continuity of governmental grants irrespective of personal family arrangements.

Turning to the plaintiff‑respondent’s claim founded on the custom asserted in paragraph 6(b) of the plaint, the Court examined the alleged rule of lineal primogeniture. The Government, in its written statement, expressly rejected the existence of such a family custom and denied its applicability to maintenance grants, stating: “The family custom alleged in clause (b) is not admitted, and it is denied that such a custom can apply in respect of maintenance grants. Under Rule 7 of the Saranjam Rules, which merely embody the customary law relating to Saranjams, Government is given absolute discretion to determine whether or not to make an order and what provision to make and in whose favour.” The appellant, responding to the same paragraph, contended that the description in paragraph 6(b) was inaccurate, that the rule of descent by primogeniture was denied, and that the appellant had become the owner by survivorship following Babasaheb’s death. The learned Civil Judge concluded that the custom pleaded in paragraph 6(b) had not been proved. While the High Court did not cite any evidence establishing the custom, it nevertheless remarked that “it is common ground that the properties which had been assigned to this branch for its maintenance is impartible and goes by primogeniture.” The Court noted that even if this observation were accepted, the denial of the custom in both written statements made it doubtful that “common ground” truly existed between the parties, and the Court questioned how such an assumption could benefit the plaintiff‑respondent. Under the rule of lineal primogeniture, the appellant acquired the properties after Babasaheb’s death. The plaint did not allege that those properties, once vested under the customary rule, were later divested by the widow’s subsequent adoption. No specific plea to that effect was raised, although the High Court relied on an argument presented by counsel for the appellant that, under ordinary Hindu law, a valid subsequent adoption by the widow would divest the appellant of the vested properties.

The Court observed that it was unnecessary to examine the difficult question of whether an estate could be divested by a later valid adoption by the widow. It was sufficient to point out that the plaint made no allegation of such a case; the issue had never been raised, and the plaintiff‑respondent was not permitted to formulate a new claim for the first time in the appeal. The plaintiff‑respondent had relied on a family custom of lineal primogeniture that was asserted to be different from the ordinary law of inheritance. The Court held that the plaintiff‑respondent bore the burden of alleging and proving the custom on which he relied, of describing its precise extent, and of showing how far it prevailed over ordinary Hindu law. In the Court’s view, the plaintiff‑respondent failed to plead or prove any family custom that would cause the properties to devolve upon him. Moreover, to succeed the plaintiff‑respondent had to establish that the custom was of a nature that would bind the Government. Neither the appellant nor the Government conceded that a custom of lineal primogeniture, even if it existed in the family, would remove the Government’s right to resume the maintenance grant that formed part of a Saranjam and to make a fresh grant in accordance with the Saranjam Rules. The Court then turned to section 4 of the Bombay Revenue Jurisdiction Act, 1876. For the purpose of this discussion the relevant portion of the section read: “S. 4 – Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters: (a) claims against the Government relating to any property appertaining to the office of any hereditary officer appointed or recognised under Bombay Act No III of 1874 or any other law for the time being in force, or of any other village‑officer or servant, or claims to perform the duties of any such officer or servant, or in respect of any injury caused by exclusion from such office or service, or suits to set aside or avoid any order under the same Act or any other law relating to the same subject for the time being in force passed by the State Government or any officer duly authorized in that behalf, or claims against the Government relating to lands held under treaty, or to lands granted or held as Saranjam, or on other political tenure, or to lands declared by the Provincial Government or any officer duly authorized in that behalf to be held for service.” The Court noted that in Mallappa alias Annasaheb Basvantrao Desai Nadgouda v. Tukkao Narshinha Mutalik Desai and Others (I.L.R. (1937) Bom. 464) it had been observed that the section draws a distinction between claims and suits. The sub‑clause of interest was the fourth sub‑clause, which refers to “claims against the Government relating to lands granted or held as Saranjam.” The High Court had held that no claim against the Government was made in the present case, a conclusion the Court could not accept. In explicit terms, the plaintiff‑respondent had sought a finding that the Government’s resolution dated 17 December 1941 was null and void and that it did not affect the properties in dispute because the Government lacked authority or occasion to make such an order.

The Court observed that the Government Resolution dated December 17, 1941, was null and void and consequently did not affect the properties that were the subject of the suit. The nullity was founded on the premise that the Government either lacked authority to issue such an order or had no occasion to do so. Despite the existence of that order, the plaintiff‑respondent pressed for possession of the disputed properties, seeking to enforce his claim irrespective of the Government’s directive. In this factual setting, the Court concluded that the Government functioned as more than a mere formal party and that a substantive claim had been lodged against it concerning the provisions of its December 17, 1941 Resolution. Consequently, unless the Resolution were demonstrably beyond the plaintiff‑respondent’s reach, he could not be granted recovery of possession together with mesne profits or similar relief. The Court further held that the Civil Court possessed no jurisdiction to adjudicate any claim against the Government arising from the December 17, 1941 Resolution relating to Saranjam lands. Accordingly, the suit was barred by section 4 of the Bombay Revenue Jurisdiction Act, 1876, and could not proceed. On these grounds, the Court allowed the appeal, set aside the High Court judgment and decree dated November 12, 1952, and restored the decree of the learned Civil Judge dated April 20, 1949. The appellant was awarded costs throughout the proceedings, to be paid by the plaintiff‑respondent. Accordingly, the appeal was granted, confirming the reversal of the lower court rulings and confirming the appellant’s entitlement to costs incurred throughout the litigation.