Maharaj Kumar Tokendra Bir Singh vs Secretary to the GOI Ministry of Home Affairs

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

Court: Supreme Court of India

Case Number: Writ Petition (civil) 123 of 1963

Decision Date: 23 March 1964

Coram: P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, N.R. Ayyangar, S.M. Sikri

In the matter of Maharaj Kumar Tokendra Bir Singh versus the Secretary to the Government of India, Ministry of Home Affairs, a writ petition (civil) numbered 123 of 1963 was filed in the Supreme Court of India. The petition was decided on 23 March 1964 by a bench consisting of Chief Justice P B Gajendragadkar, Justice K N Wanchoo, Justice J C Shah, Justice N R Ayyangar and Justice S M Sikri. The petitioner, Maharaj Kumar Tokendra Bir Singh, invoked Article 32 of the Constitution to challenge the constitutionality of Section 87B of the Code of Civil Procedure and to contest an order issued by the Government of India that gave only partial consent for a suit he proposed to file against His Highness Okendrajit Singh, the Maharaja of Manipur. The petitioner is a son of the late His Highness Sir Chura Chandra Singh, who had been the Maharaja of Manipur and who died on 6 November 1941. At the time of his death Sir Chura Chandra Singh left six sons, including the petitioner, and a substantial amount of movable and immovable property which the petitioner claims were his personal acquisitions and therefore did not belong to the State of Manipur. Sir Chura Chandra Singh had abdicated the throne in favour of his eldest son Bodh Chandra Singh, who was subsequently recognised as the ruler of the State of Manipur. On 20 September 1949 the State of Manipur merged with the Dominion of India under a merger agreement executed on that date. Under the terms of that agreement all property belonging to the State passed to the Dominion Government, while the personal property of the Maharaja remained unaffected. The petitioner contended that those private properties were inherited by all members of the coparcenary in accordance with the Dayabhaga school of Hindu law. At the time of the merger Maharaja Bodh Chandra Singh prepared an inventory of his private properties, which was examined and approved by the Government of India. In its approval the Government expressly stated that the declaration of those assets as private property meant that the State had no claim over them, and the approval was made without prejudice to the rights of any third parties. Maharaja Bodh Chandra Singh died on 9 December 1955 and was succeeded by his minor son, Maharaja Okendrajit Singh, who was placed under the care and guardianship of his mother, Rani Waikhom Nigol Komalanbati Devi. The petitioner seeks to institute a partition suit against this minor Maharaja. According to the petitioner, the estate of the joint family in which he has a share consists of …

The petitioner’s share in the estate comprises numerous movable and immovable assets that are enumerated in several schedules attached to the pleadings. Schedule A sets out the landed holdings situated within the Union Territory of Manipur. Schedule B lists properties located at Gauhati in the State of Assam. Schedule C contains the assets situated in Nadia District of West Bengal. Schedule D records the holdings found in Mathura District of Uttar Pradesh. Schedule E reflects a war‑compensation award of Rs. 54,894 – /- that was granted to the family in respect of certain items of property. Finally, Schedule X identifies the firearms that were brought to and owned by the late Maharaja Sir Chura Chandra Singh. These schedules collectively describe the full extent of the property interests that are the subject of the contemplated partition suit.

In accordance with section 87B of the Civil Procedure Code, the petitioner was required to obtain the consent of the Government of India before instituting a suit against the minor Maharaja. Accordingly, the petitioner filed an application seeking such consent. By an order dated 23 October 1961, the Government of India granted permission to proceed with the suit only with respect to the properties listed in Schedules A and E, while refusing consent for the properties enumerated in Schedules B, C, D and X. The petitioner now contends that section 87B, which imposes the statutory condition of obtaining governmental consent before filing a suit against the minor Maharaja of Manipur, is unconstitutional. The petitioner further argues that, even assuming the validity of the section, the Government of India lacked authority to grant consent for some items of property while denying it for others. He submits that the order of the Government should be construed as having been issued under section 87B for the entire suit and that the selective refusal of consent concerning the properties in Schedules B, C, D and X is therefore invalid. The Court notes that the constitutionality of section 87B of the Civil Procedure Code has recently been examined in Narottam Kishore Deb Verma v. Union of India, W.P. No. 87 of 1962 dated 6 March 1964 (1964 AIR SC 1590). In that decision, the Court referred to an earlier judgment in Mohan Lal Jain v. Shri Sawai Man Singh Ji (1962 SCR 702; 1962 AIR SC 73) and held that the validity of section 87B could not be successfully challenged. The Court’s reasoning involved a review of the historical and legislative background of the provision, leading to the conclusion that, in light of that background, sections 86 and 87B are constitutionally valid. Nevertheless, the Court observed that the Central Government might seriously reconsider whether section 87B should continue to remain on the statute book for suits filed against the former Rulers of Indian States.

In the earlier judgment, the Court emphasized that when applications for consent under section 87B were considered, the authorities had to act with meticulous care and could not reject such applications in a casual manner. The Court held that consent could be lawfully refused only when, on a preliminary examination, the appropriate authority found that the claim sought to be pursued by the proposed suit was frivolous. The Court warned that if the power conferred on the Government of India by section 87B was exercised without such careful scrutiny, litigants might become dissatisfied, believing that their legitimate claims, which raised genuine issues of fact between them and the former Rulers of Indian States, were being decided by an executive order rather than through a proper judicial process. Consequently, the Court could not accept the petitioner’s contention that section 87B was invalid, given the reasoning set out in the earlier decision.

The petitioner’s counsel further argued that even assuming the validity of section 87B, the provision did not apply to the present dispute because the minor Maharaja Okendrajit Singh, against whom the suit was proposed, could not be classified as a “Ruler” of the former State of Manipur within the meaning of section 87B. To support this position, counsel cited the definition of “Ruler” contained in article 366(22) of the Constitution, which described a “Ruler” as a Prince, Chief, or other person who had entered into the covenant or agreement referred to in clause (1) of article 291 and who, at the relevant time, was recognised by the President as the Ruler of the State, and further included any person recognised by the President as the successor of such a Ruler. Counsel maintained that because the minor Maharaja had not personally signed the merger covenant, he could not be deemed a “Ruler” and therefore fell outside the scope of section 87B. The Court rejected this interpretation, observing that article 366(22) provides an inclusive definition; its later clause expressly embraces successors of recognised Rulers who satisfy the conditions of the first part. Since the President had recognised the minor Maharaja as the successor of his deceased father, he qualified as a “Ruler” under article 366(22) and was therefore entitled to the status of a former State Ruler for purposes of section 87B(2)(b). Having resolved this point, the Court turned to the pending issue of whether the conditional order issued by the Secretary to the Government of India, Ministry of Home Affairs, was valid under section 87B, noting that a detailed analysis of that order would follow.

In this case, the Court explained that its examination would be confined to orders that could be made under Section 87B with respect to the Rulers of former Indian States. Section 87B (1) stated that the provisions of Section 85 and of sub‑sections (1) and (30) of Section 86 applied to the Rulers of any former Indian State in the same manner as they applied to the Ruler of a foreign State. Section 86 (1) dealt with the situation of Rulers of foreign States and granted them a specific immunity from being sued in the municipal courts of India unless the Central Government gave written consent, certified by a Secretary to the Government. The conditional immunity conferred on foreign Rulers by Section 86 (1) was based on the doctrine of diplomatic immunity that the international community recognizes for foreign sovereign monarchs under international law and convention. When a case fell within the ambit of Section 86 (1), considerations of international law, long‑standing diplomatic practice and other related diplomatic factors could be taken into account, and the Central Government could weigh those factors before deciding whether to grant consent to a suit against a foreign Ruler. The Court noted, however, that such diplomatic considerations were not the issue before it in the present petition. The matter before the Court concerned the validity and propriety of the order issued by the respondent, the Secretary to the Government of India, Ministry of Home Affairs, which gave partial or conditional consent to the institution of a suit that the petitioner intended to file against the minor Maharaja of Manipur. In addressing that question, the Court emphasized that the power vested in the Central Government to grant or refuse consent to a proposed suit must be exercised with great care. The affidavit filed on behalf of the respondent asserted that the Central Government had granted consent in every case where a prima facie and justiciable claim was made against a Ruler, and had refused consent only where it was convinced that the suit was intended to exploit, blackmail, or harass the Ruler, or where the suit related to acts or omissions undertaken by the Ruler during the period of his administration. The Court observed that if the Central Government consistently followed that approach in handling applications for consent under Section 87B, no serious grievance could be sustained. It was clear that Section 87B was intended primarily to protect the Rulers of former Indian States from harassment that might arise from frivolous litigation. Except where a claim appeared frivolous on its face, the Court held that the Central Government should normally grant consent to litigants who wished to file suits against the Rulers of former Indian States, provided that the disclosed claims were justifiable and capable of being tried.

In this case, the Court observed that disputes between the petitioner and the former Rulers were not matters for the Central Government to resolve on their merits; such determination belonged to civil courts of appropriate jurisdiction. Consequently, the Government should not assume the role of a civil court by deciding whether a claim was well‑founded before granting consent for the suit to be instituted. This principle was highlighted as a key consideration in addressing the petitioner’s grievance. The Court further noted that, when exercised judiciously, the power conferred by Section 87B could fulfil a purpose comparable to that of Section 80 of the Code of Civil Procedure in actions against the Government. Under Section 80, the legislature requires that the plaintiff’s notice contain all particulars prescribed, a measure intended to prevent unnecessary litigation. Analogously, in applications made under Section 87B, the Government may reasonably attempt to avoid the filing of suits by inviting the former Ruler to examine the claim and, if possible, settle the dispute amicably without resorting to court proceedings. While Section 80 does not involve any consent or sanction, unlike Section 87B, the Court mentioned Section 80 merely to illustrate the type of objective that Section 87B could also achieve, namely, the settlement of disputes where the Government is convinced that the claim is substantively justified. Turning to the facts of the present matter, the Court found that the respondent had, in effect, decided on the merits of the petitioner’s claim. The respondent’s affidavit stated that the properties listed in Schedules B, C, D, and X were indivisible and belonged to the minor Maharaja, characterising them as private assets attached to the rulership that passed from one ruler to another, leaving no share for other heirs. On the basis of this view, the respondent refused to grant consent for the petitioner to file a suit concerning those properties, an action that plainly indicated that the respondent had adjudicated the claim’s substance. The Court also observed that a similar merit‑based approach had been adopted by the respondent in another matter, further demonstrating the pattern of the respondent deciding the core issues of the claim rather than merely assessing the procedural propriety of granting consent.

In a different matter, the petitioner alleged that when the Central Government gave its approval to the inventory prepared by the Maharaja of Manipur, the approval was expressly made without prejudice to the rights of third parties. The petitioner argued that this reservation of rights also covered the rights of the Maharaja’s coparceners, including himself. The respondent’s affidavit accepted that the Government’s communication to the Maharaja used such wording, but it interpreted the reference to “third parties” as applying only to outsiders who might claim rights over the properties, and not to the coparceners. The Court observed that this interpretation raised a substantial issue. Moreover, the Court found that it was inappropriate for the respondent to decide this dispute while it was merely considering whether to grant consent for the petitioner’s suit.

The Court noted that the conditional and partial consent given by the respondent to the petitioner’s suit was essentially based on the Government’s attempt to rule on the merits of the petitioner’s claim. In the Court’s view, this created a defect in the order that was being challenged. Section 87B empowers the Central Government either to grant consent or to refuse it; it does not authorize the Government to attach conditions, to grant consent only in part, or to refuse it partially, especially when all reliefs arise from the same cause of action. If the Government were allowed to impose conditions when granting consent, it would effectively be given jurisdiction to decide the dispute, which is contrary to the purpose of Section 87B.

After examining the order in the present case, the Court was inclined to hold that the Central Government had indeed granted consent to the petitioner to file his suit, thereby exercising the power conferred by Section 87B. The Court further held that the additional direction in the order, which stated that consent would not be given with respect to the properties listed in Schedules B, C, D and X, was invalid. The Court found no difficulty in reaching this conclusion because the respondent’s affidavit, written in clear and unmistakable language, revealed the approach adopted by the respondent. The affidavit was deemed fair and thorough, making no attempt to conceal the respondent’s method of dealing with the matter before issuing the impugned order. Considering the statements in the affidavit, the Court was satisfied that the Central Government would have granted consent to the entire suit had it not persuaded itself to decide on the merits of the petitioner’s claim.

In this case, the Court observed that the authority given to the Central Government under Section 87B, when applied to the properties described in Schedules B, C, D and X, was out of tune with the principle of equality before the law guaranteed by Article 14, and it could also affect the litigants’ fundamental rights protected by Article 19(1)(f) and Article 19(1)(g). The Court cited the earlier decision in Narottam Kishore Deb Verma, W.P. No. 87 of 1962 D/‑ 6‑3‑1964 : 1964 AIR(SC) 1950, to underline that such an exercise of power may be constitutionally infirm. Accordingly, the Court held that the judiciary must examine with meticulous care the validity of any order issued under Section 87B that refuses consent only in part, because a partial refusal may impair constitutional guarantees. Referring to the affidavit filed by the respondent, the Court concluded that the order issued by the respondent should be construed as an order granting consent for the institution of the suit that the petitioner proposed to file, while the latter portion of that order dealing with the properties listed in Schedules B, C, D and X should be treated as invalid. On that basis, the Court found that, in substance, the petition succeeded. Consequently, the Court declared that the order passed by the Central Government constituted consent for the petitioner to institute the suit against Maharaja Okendrajit Singh. Finally, the Court ordered that the petitioner be awarded his costs against the respondent.