JUDGMENT
U.N. Sinha, C.J.
1. Each of the petitioners of these three writ applications has prayed that an order passed by the Commissioner of Patna Division dated the 31st August, 1970, dealing with three separate ap-peals, may to quashed. In each writ application a copy of the Commissioner’s order has been given as Annexure 3 and a common argument has been advanced on behalf of all the writ petitioners by Shri L.C. Sinha. Therefore, this judgment and order will govern all the three writ applications.
2. Respondent No. 5 In each of these cases (to be described as respondent No. 5 henceforth) bad succeeded to the Gaddi of Dumraon Raj in November, 1949, on the death of his father, Maharaja Bahadur Ramran Bijoy Prasad Singh. The petitioner of Civil Writ Jurisdiction Case No. 1774 is the son of respondent No. 5 The petitioner of Civil Writ Jurisdiction Case No 1766 is the Wife of the said respondent No. 5 and the petitioner of civil writ jurisdiction case No. 1767 is his daughter. It is said that the succession to the Dumraon Raj used to be govern-ed by the rule of primogeniture and from ancient times a practice and custom had grown up to provide maintenance to the junior members and dependents of the Mahnraja, whether male or female. In pursuance of this custom and tradition of the family, respondent No. 5 had made three maintenance grants in favour of the three wit petitioners by way of Khorposh deeds dated the 13th May, 1950. (Ry affidavits filed on the 2nd September, 1972 three copies of these three khorposh deeds have been filed in these cases.) It is said that after Dumraon Raj had vested in the State of Bihar, a notice under Section 4 (h) of the Bihar Land Reforms Act had been served on each of the writ petitioners on the 13th January, 1953, but the proceedings were ultimately dropped. Thereafter, fresh notices under the same pro-vision of law were served on the three petitioners on the 12th September, 1963.
As a result, three cases were brought on the record as follows:– As against the son of respondent No. 5 the case was numbered as Case No. 3 of 1963-64 before the Deputy Collector, Land Reforms, Buxar. As against the wife of respondent No. 5 the case was numbered as Care No. 1 of 1963-64 before the same officer and as against the daughter of respondent No. 5 the case was numbered as Case No. 2 of 1963-64 before the same officer. The Deputy Collector, Land Reforms Buxar, exercising the powers of a Collector under Section 4 (h) of the Bihar Land Reforms Act, recommended annulment of all the three khorposh grants. Three appeals were filed by the three writ petitioners before the Collector of Shahabad as follows: As against Case No. 1 of 1963-64 the appeal was numbered as Appeal No. 33 of 1965-66; as against Case No. 2 of 1963-64 the appeal was numbered as Appeal No. 35 of 1965-66, and as against Csse No. 3 of 1963-64 the appeal was numbered as Appeal No. 36 of 1965-66. In appeal Nos. 36 and 33 of 1965-66 the Collector had asked for a REPORT from the Additional Collector by order dated the 8th July, 1966. By order dated the 29th July, 1968, the Additional Collector of Shahabad had recommended to the Collector that the grants involved in Cases Nos. 3 and 1 be annulled. A copy of this order has been given as Annexure 1 in C. W. J. Cs. 1774 and 1766 of 1970. Ry order dated the 7th October, 1968, the Collector accepted this report and forwarded it to the State Government recommending annulment of the khorposh grants in favour of the petitioners in C. W. J. Cs. 1766 of 1970 and 1774 of 1970, i.e., the wife and the son of respondent No. 5. So far as the khorposh grant in favour of the daughter was concerned the Collector of Shahabad dismissed her Appeal No. 35 of 1965-66 by order dated the 8th October, 1968, holding that for the reasons given by him on the previous day in Appeals Nos. 33 and 36 of 1965-66, there was no merit in the daughter’s appeal. In such circumstances, three appeals were filed by the three writ petitioners be-fore the Commissioner, Patna Division, which were disposed of on the 31st August, 1970. The Commissioner has held that all the three khorposh grants ought to be annuled by the State Government.
3. The reasons given by the Commissioner of the division for recommending annulment of the khorposh grants may now be Stated.
(A) He has stated that the evidence produced before him showed that Maharaja Bahadur Ramran Bijoy Prasad Singh (father of respondent No. 5) had transferred certain properties in the years 1944 and 1045 in favour of Maharaj Kumar Shri Vishwanath Prasad Singh, brother of Maharaja Bahadur Ramran Bijoy Prasad Singh, and in favour of Maharaj Kumar Ran Bijoy Shigh, his younger brother and both the granites were either brother or some other near relation and not descendents of the male heir of the grantor. The learned Commissioner has described Maharaj Kumar Ran Bijoy Singh as a younger brother of Maharaja Bahadur Ramran Bijoy Prasad Singh, which is an error of record. Maharaj Kumar Ran Bijoy Singh wns the second son of Maharaja Bahadur Ramran Bijoy Prasad Singh, i.e., younger brother of respondent No. 5. The error of record was clearly due to the fact that the Additional Collector in his recommendation dated the 29th July, 1968 (Annexure 1) had made the same error of record in referring to a document produced before him, which was the original settlement deed executed by Maharaja Bahadur Ramran Bijoy Prasad Sinnh, dated the 2nd May, 1945, in favour of Maharaj Kumar Ran Bijoy Singh. The Additional Collector had also described Maharaj Kumar Ran Bijoy Singh as brother of Maharaja Bahadur Ramran Bijoy Prasad Singh.
(B) The second ground given by the learned Commissioner was that the petitioner of C. W. J. C. 1774 of 1970, being son of respondent No. 5, would succeed to the Gaddi in due course and the deeds of 1944 and 1945 did not show that the properties had been transferred by way of maintenance grants to any heir apparent.
(C) The third reason given by the learned Commissioner was that no evidence had been adduced to show that settlement had ever been made in favour of females in this family, particularly when such females were daughter or wife of the grantor.
(D) The next reason given by the learned Commissioner was that all the khorposh grants mentioned that it was the last wish of the late Maharaja Bahadur Ramran Bijoy Prasad Singh that such maintenance grants should be executed in favour of the three writ petitioners, but, if that was his real wish, it could have been accomplished in his lifetime, when, he had executed deeds of 1944 and 1945. The learned Commissioner also mentioned that although respondent No. 5 had come to the Gaddi in 1949, when he had executed the three khorposh grants on the 13th May, 1950, a statement of the objects and reasons for the enactment of Bihar land Reforms Bill,. 1950 had been published in the Bihar Gazette on the 1st Febuary, 1949, and the report of the Select Committee had been published in the Bihar Gazette on the 1st February, 1950, and, therefore, the execution of the khorposh grants would seem intriguing and would indicate that the grantor had in view the impending enactment, namely, the Bihar Land Reforms Act, 1950. (The Bihar Land Reforms Bill, 1949, with the statements of objects and reasons appears to have been published in the Bihar Gazette (Extraordinary) on the 10th December, 1949). For these reasons the learned Commissioner has held that the three khorposb grants had been executed by respondent No. 5 with the object of obtaining higher compensation under the Land Reforms Act and they were fit to be cancelled.
4. Learned counsel for the petitioners has filed a copy of the will of the late Maharaja Bahadur Shri Radha Prasad Singh of Dumraon, mentioned in Annexure 1, in C. W. J. C. 1766 of 1970, and he has relied upon some of the recitals made therein to show that the grant of property or money to female members of Dumraon Raj family was not unknown. Specific reliance has been placed by learned counsel for the petitioners on the recitals in paragraphs 2, 9, 10 and 13 of Annexure 6. Further, learned counsel for the petitioners has contended that judicial notice of khorposh grants in favour of sons of a holder of impartible estate can be taken, and in that context, there is no difference between sons, and even the only son, who may be the heir apparent, comes in the category of sons, in whose favour grants can be made. Reliance is placed on the case of Rani Sartaj Kuari v. Rani Deoraj Kuari, reported in (1887) 15 Ind Apn 51 (PC). In substance, the contention raised by learned counsel for the petitioners on behalf of the son of respondent No. 5 is that the khorposh grant in his favour was valid in law, and merely because such a grant had made any difference in the compensation payable it will not ipso facto make the grant voidable. On behalf of the wife and the daughter of respondent No. 5 it is argued that apart from the question of custom in the Raj, respondent No. 5 had, as holder of an impartible estate, absolute right to give khorposh grants in favour of these two ladies, and in these cases also, merely because these grants affect the quantum of compensation, they cannot be avoided under Section 4 (h) of the Bihal Land Reforms Act-Learned Government Advocate appealing for the contesting respondent has, in effect, supported the reasons given by the learned Commissioner of the Division and has argued that there was no custom or usage in the Dumraon Raj for giving khorposh grants to female members of the family, It is also argued that the Collector had come to his conclusion in these cases to the effect that the khorposh grants were given with a view to respondent No. 5 obtaining higher compensation under the Land Reforms Act, and this conclusion cannot, or ought not to be interfered with in these cases. The power of this court to come to its own conclusion on the facts of a particular case is now established and reference may be made to the case of Chandeshwar Prasad Narain Deo v. State of Bihar, reported in AIR 1956 Pat 104. In Chandreshwar Prasad Narain Deo’s case, this court held that the jurisdiction of an authority to act under Section 4 (h) of the Bihar Land Reforms Act and to cancel khorposh grants depends on a decision on jurisdictional facts and this court can go into the question as to whether the conclusion of such an authority is correct or not. This court held that where the outgoing proprietor had not made any grant with the object of defeating the provisions of the Bihar Land Reforms Act or for obtaining higher compensation, the order for cancelling the grant was without jurisdiction and null and void, Therefore, there is no validity in the argument of the learned Government Advocate, that, the conclusions of the learned Commissioner for invoking the provisions of Section 4 (b) of the Bihar Land Reforms Act are final. The real question, therefore, is whether on the materials on record, this court can hold that the recommendations of the authorities acting under Section 4 (h) of the Bihar Land Reforms Act for annulment of the three khorposh grants are erroneous or not.
In my opinion, too much stress was placed before the Commissioner of the Division on the question of custom and usage in the family of respondent No. 5 and the writ petitioners. Under well-established principle of law respondent No. 5 as holder of the Impartible estate of Dumraon Raj had full authority to make the grants under consideration, and the question for determination is, whether the three particular khorposh grants in favour of the three writ petitioners were made with the object of defeating any provision of the Bihar Land Reforms Act or causing loss to the State or obtaining higher compensation thereunder, within the purview of Section 4 (h) of the Bihar Land Reforms Act. The khorposh grant in favour of the petitioner of C. W. J. C. 1774 of 1970, that is to say, son of respondent No. 5, shows that on the date of the grant this writ petitioner was an infant son of the grantor. There is no material on the record to indicate why and how it had becomes necessary to makes a grant in favour of this son, yielding a net income of Rs. 24 122 and odd per annum. Similarly, the date on which the khorposh grant was granted to the petitioner of C. W. J. C. 1767 of 1970 i.e., the daughter of the grantor, she was also described as an infant, and in her case also, nothing is on the record to show why the grant of Rupees 12,020 and odd per annum became necessary in her favour. Both the grants mentioned that they were meant for upbringing and education of the grantees and the grant in favour of the daughter added that it was for her marriage also.
But, apart from the recitals in the documents, there is no material on the record to show as to why specific grant of property became necessary for the upbringing and education of the children and the marriage of the daughter. Similarly, there is no material on the record to ascertain as to why it had suddenly become necessary to make a maintenance grant in favour of the wife of respondent No. 5, yielding a net income of Rs. 36,088 per annum. No doubt all the three grants mentioned that the father of the grantor was anxious to create maintenance grants in favour of his dependants according to their position and status in life in lieu of expenses and other establishments that he had provided for them and that, in fact, his lawyers had prepared the requisite drafts and the same had been settled by the late Maharaja, the grantor’s father, but the latter had died before he could execute the said maintenance grants, but such recitals are difficult to accept as representing the true state of affairs without any other material on record. The grantor’s father had died in November, 1949, and if the son and daughter of respondent No. 5 had been born before that, they were younger still and the late Maharaja Bahadur, father of respondent No. 5, could hardly have considered making grants in their favour “in lieu of expenses and other establishments that he bad provided for them”, as mentioned in the three khorposb grants. There is no evidence on record as to what establishments the late Maharaja Bahadur, father of respondent No. 5, had provided for his dependents, in lieu of which specific khorposh grants had to be made.
Learned counsel for the petitioners has referred to the facts and circumstances of the decision reported in ATR 1956 Pat 104, mentioned above, and to the facts and circumstances of the case of State of U P. v. Raj Kumar Rukmini Raman Brahma, reported in AIR 1971 SC 1687. for his contention that on more or less similar facts certain grunts were held to be genuine and bona fide grants by this court as well as by the Supreme Court of India. But, in my opinion these two decisions are quite distinugishable on facts. There were enough materials on the record of Chandreshwar Prasad Narnin Deo’s case for the conclusion that the khorposh grants impugned there were bona fide transactions. In the case reported in AIR 1971 SC 1687, the Gujarnpama deed, which was in question there mentioned that according to the law and custom of the estate, be eldest son of the Raja becnme the owned of the estate on the death of the earlier Raja and the younger sons had right is maintenance and they were given reasonable share of the estate in lieu of right of maintenance In view of such a recital, the Supreme Court upheld the Gujaranama deed in favour of the younger brother. The facts of thus case can hardly support the contentions raised on behalf of any of the petitioners. In an event, the question that this court has to consider under Section 4 (h) of the Bihar Land Reforrm Act was not involved in the Sunreme Court case. The recitals in the will, which is Annexure 6 in C. W, 1 C 1766 of 1970, can also hardly affect the questions which have arisen for consideration at this stage.
Even assuming that respondent No. 5 Could make a valid grant in favour of his wife, he had come on the Gaddi of the Raj in November, 1949 and there is no reason given as to why it became necessary in May 1950 to make a separate grant in her favour. In view of the fact that after the 1st of February, 1950, it had become clear that a legislation of the nature of the Bihar Land Reforms Act would come in force in due course, these three khorposh grants made on the 13th May, 1950 must be taken to have been made for a purpose other than to provide separate properties for the three grantees. In the show cause petitions filed by the State of Bihar in C. W. J. Cs. 1766 of 1970 and 1774 of 1970 certain calculations have been given to show that compensation respondent No. 5 would have got if these three khorposh grants had not been created and what compensation would be available to the wife and the son of respondent No. 5 on the basis of their grants. (These calculations have been adopted from the order of the Additional Collector) Whether these calculations are precise and correct or not there is no doubt that if the two grants are upheld as genuine, the State would have to pay to the wife and the son of respondent No. 5 large amounts of compensation which would not have been payable by the State if these two grants had not been made. Therefore, the irresistible conclusion must be that the grants involved in the three writ applications were made for causing loss to the State and for obtaining higher compensation under the Bihar Land Reforms Act, and accordingly, the authorities acting under Section 4 (h) of the Act were entitled to recommend that the grants may be annuled.
5. Not much argument has been advanced on the point that the first proceeding under Section 4 (h) of the Bihar Land Reforms Act had been dropped on the 13th January, 1953. No materials have been brought on the record to show as to what had happened in the earlier proceeding and as to the reason for dropping the proceeding on the earlier occasion. Neither the order of the Additional Collector nor the order of the Commissioner of the Division has referred to this aspect of the matter, and, therefore, no relief can be granted to the writ petitioners on the basis of the dropping of the first proceeding in 1953.
6. For the reasons given above, I am of the opinion that no grounds have been made out for granting the reliefs prayed for by the writ petitioners and, therefore, all the three writ applications are dismissed. In the circumstances of the case, there will be no order for costs.
K.B.N. Singh, J.
7. I agree.