PETITIONER:
DARBAR SHRI VIRA VALA SURAG VALA,VADIA
Vs.
RESPONDENT:
THE STATE OF SAURASHTRA (NOW BOMBAY)
DATE OF JUDGMENT:
14/04/1960
BENCH:
KAPUR, J.L.
BENCH:
KAPUR, J.L.
IMAM, SYED JAFFER
DAS, S.K.
SARKAR, A.K.
HIDAYATULLAH, M.
CITATION:
1967 AIR 346 1960 SCR (3) 521
CITATOR INFO :
R 1981 SC1829 (116)
ACT:
Grant by Ruler to younger son as Bhayat-Son becoming Ruler-
Whether grant resumable-" Bhayat ", Meaning of.
HEADNOTE:
In the, Indian State of Vadia succession was governed by
primogeniture. The Ruler in 1943 granted to his younger
son, the petitioner, a village in the State in perpetuity
and in heredity for enjoyment as 'Kapal-Giras' as ' Bhayat'.
In 1947 the State of Vadia acceded to the Dominion of India
and by subsequent constitutional developments it became
merged in the State of Saurashtra. After the coming into
force of the Constitution the elder son of the Ruler and
then the Ruler died, and the petitioner was recognised as
the Ruler. Thereupon the State of Saurashtra issued a
notification resuming the grant as it was deemed to have
lapsed and reverted to the former Vadia State. The
petitioner contended that the grant was absolute and
unconditional for
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permanent enjoyment from generation to generation and the
State could not resume it:
Held, that the grant lapsed on the petitioner becoming the
Ruler and the State could resume it. The grant was to the
petitioner as a " Bhayat ", which word meant a cadet or the
descendant of a younger branch of a Talukdar's family where
the estate followed the rule of primogeniture; as such if
enured for his benefit as long as he remained a cadet. But
when the grantee became the Ruler and ceased to be a "
Bhayat ", the grant came to an end.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 62 of 1956.
Petition under Art. 32 of the Constitution of India for
enforcement of Fundamental Rights.
N.H. Hingorani and A. N. Sinha, for the petitioner.
R. Ganapathy Iyer and T. M. Sen, for the respondent.
1960. April 14. The Judgment of the Court was delivered by
KAPUR, J.-Prior to the integration of the Indian States with
the Union of India on the promulgation of the Constitution
of India there was in Kathiawad a State of the name of
Vadia, succession to the Rulership of which was by
primogeniture. Its Ruler then was Darbar Saheb Shri Surag
Vala Bavavala. He had two sons Kumar Shri Krishan Kumar and
the petitioner Kumar Shri Vira Vala Surag Vala. Kumar Shri
Krishan Kumar being the elder son was the heir-apparent. On
July 5, 1943, the Ruler Darbar Saheb Shri Surag Vala
executed two documents in favour of the petitioner granting
him in perpetuity and in heredity a village called ‘ Mota
Pithadia’ in the State for enjoyment as ‘ Kapal-Giras’ as ‘
Bhayat’. The word ‘ Bhayat’ means a cadet or the descendant
of a younger branch of a Talukdar’s family where the State
followstheruloofprimogeniture. ‘Kapal-Giras’means a grant
in appanage as a birthright to a share in the patrimony.
Sometime in or about August, 1947,the State of Vadia acceded
to the Dominion of India on the terms contained in an
instrument of accession then executed. Thereafter, on
January 23, 1948, various States in the Kathiawad area
entered into a covenant forming the United State of
Kathiawad, also called the United State of Saurashtra. In
terms of this covenant the
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assets of each State excepting the private properties of the
Ruler, became the assets of the United State. The covenant
also provided that the Ruler of each State shall be entitled
to receive a certain sum as his privy purse from the
revenues of the United State, to retain ownership of all
private properties to be determined in the manner provided
and to all personal privileges, dignities and titles. The
Government of India concurred in the covenant and guaranteed
all its provisions. The State of Vadia was a party to this
covenant and its assets therefore became vested in the
United State. On September 13, 1948, the United State of
Kathiawad executed a fresh instrument of accession to the
Dominion of India cancelling the instrument of accession
executed by the covenanting States in or about August, 1947.
On November 13, 1949, the United State of Kathiawad agreed
to adopt the Constitution to be framed by the Constituent
Assembly of India and further that the Constitution of India
as from the date of its commencement would supersede and
abrogate all other constitutional provisions inconsistent
therewith in force in the United State. On the promulgation
of the Constitution of India on January 26, 1950, the United
State merged in the Union of India and became Saurashtra, a
Part B State mentioned in the Constitution. The United
State and therefore its component States since then lost all
separate existence. It is not in dispute that upon such
merger all the assets of the United State became vested in
the Union of India.
On January 27, 1950, Kumar Shri Krishan Kumar, the elder son
of the Ruler Darbar Saheb Shri Surag Vala died and
thereafter on May 16, 1950, the Ruler himself died. On
February 12, 1951, the President of India issued a
notification recognising the petitioner as the Ruler of
Vadia with effect from May 16,1950, and he became entitled
to the rights of the Ruler which the Government of India had
agreed to recognise. These were the rights reserved to the
Ruler under the covenant constituting the United State of
kathiawad, namely, the right to a privy purse, to the
private properties and to the personal privileges, dignities
and titles.
524
On July 2, 1951, the Government of the State of Saurashtra
issued a notification declaring that as the petitioner had
succeeded his father as Ruler, the village Pithadia should,
pending final orders be treated as Khalsa or Khas village of
the State of Saurashtra. The petitioner was then a minor
and his mother submitted a representation to the Government
protesting against the notification. No reply was received
to this protest. On May 23, 1952, the Government of
Saurashtra issued a further notification which stated:
” Whereas the village Pithadia in Vadia Taluka of the Madhya
Saurashtra District was granted, by Lekh No. 194 dated 5th
July, 1943, as 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, in
appanage grant; and Whereas, the late Ruler and his eldest
son Shri K. S. Krishna Kumarsinghji predeceased this second
son Shri K. S.Viravala, the latter has been recognised as
the Ruler of the former State of Vadia with effect from 16th
May, 1950, by the Government of Saurashtra and the President
of India as per Notification No. PD/MS/20 dated 12th
February, 1951, of the Government of Saurashtra Revenue
Department (Political) published in the Gazette of
Saurashtra and Whereas, pending the recognition the
Government of Saurashtra had ordered, by Notification No.
PD/148/20, dated 2nd July, 1951, of the Revenue Department
(Political) that village should be treated as Khalsa village
of the State of Saurashtra and whereas Shri K. S. Viravala’s
status as a Cadet has ceased and the object of the grant in
appanage has terminated in consequence of his being
recognised as the Ruler.
Now, therefore, the grant is deemed to have lapsed and
reverted to the former Vadia State now integrated with the
State of Saurashtra at present known as the State of
Saurashtra with effect from the date of Shri K. S. Viravala
having been recognised as the Ruler of the former Vadia
State in succession to the late Ruler Darbar Shri Suragwala
of Vadia State, viz., 16th of May, 1950 “.
525
The petitioner again lodged a protest against this latter
notification but this time also received no reply. On March
9, 1956, he filed the present petition under Art. 32 of the
Constitution asking for the issue of a writ directing the
respondent, the State of Bombay, in which State State of
Saurashtra had earlier merged, to withdraw or cancel the
notification and to restore the village Pithadia with all
collections and realisations made by it to the petitioner
and restraining the respondent from giving effect to the
notification.
The petitioner’s contention is that the village had been
granted to him absolutely and unconditionally for permanent
enjoyment from generation to generation and the State could
not resume it so long as any of the descendants of the
petitioner was alive. He contends that President’s
recognition of him as Ruler of Vadia did not affect his
rights to the village. The respondent’s contention is that
the grant was not absolute or unconditional but it was to
remain in force so long as the petitioner continued to be a
cadet of the family and that as on his being recognised as
the Ruler he ceased to be a cadet, the grant lapsed and the
village reverted to the State. It is said that the Union of
India being entitled to all the assets of the State of
Vadia, the village has become its property since the date of
the petitioner’s recognition as the
Ruler.
The question therefore is whether the grant lapsed on the
grantee becoming the Ruler. That is a question depending on
the terms of the grant. Capt. Webb in his compilation
called ” Political Practice in Kathiawad ” has defined a ‘
Bhayat’ as a cadet or the descendant of a younger branch of
a Talukdar’s family where the estate follows the rule of
primogeniture. The grant was made by a document called a
Lekh or a writing to which was attached a Hakpatrak which is
a Statement of rights created by the Darbar to a Bhayat.
Both these documents were registered before the Agency. The
main portions of the. Lekh
were in these terms:
” Passed by Shree Vadia Darbar Shree Suragvala Bavavala, to
long-lived Kumar Shree Viravala. To wit:-the Rule of
primogeniture (i.e., the system
69
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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 got prepared and
given to you “.
The lekh conferred various other dignities, privileges,
amenities and rights on the petitioner. Thus it is stated
that the petitioner’s marriage will be celebrated at the
State expense and the State will arrange for his education,
that no duties or taxes will be levied on the petitioner on
account of his residence in Vadia proper, that the
petitioner’s complaint regarding Giras, i.e., the village
granted, or any other civil matter would be heard without
charging any court fee and he would be exempt from personal
attendance in court in civil matters and that no process
will be issued against him in criminal cases without the
permission of the Ruler himself. All these dignities,
rights and privileges are appropriate to a cadet of the
Ruler’s family, but have no meaning when applied to a Ruler.
In the Hak Patrak it is stated: ” 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
527
revert to the State till any one Bhayat from amongst your
descendants is living “. It also states that the grantee
will not sell or mortgage the Giras without the permission
of the State.
The grant and the Hak Patrak read together lead to the
inescapable conclusion that in its true natures the grant is
a grant to a cadet of the family and the grant enures for
his benefit as long as he remains a cadet. The expression ”
given as Bhayat ” is not merely descriptive of the grantee,
but indicates the true nature of the grant. Nor do we agree
that the expression ” given as Bhayat ” merely indicates the
purpose for which the grant is made but describes the nature
of the tenure. The grant states in express terms that it is
given as Bhayat for permanent enjoyment as Kapal-Giras,
which means that the grant is to a cadet as an appanage and
continues from generation to generation as long as any of
the descendants of the grantee is alive. But if the grantee
ceases to be the younger branch and becomes heir-apparent by
reason of the rule of primogeniture or ceases to be a cadet
or Bhayat for any reason whatsoever, then the grant must
come to an end. This is what the rights and liabilities
mentioned in the grant itself and also in the Hak Patrak
show; for example, with regard to the right of succession,
the Hak Patrak states that even if one Bhayat from amongst
the descendants survives he shall enjoy the Giras and there
will be no reversion to the State.
This, in our opinion, shows that the grant enures as long as
there is a Bhayat. If there is no Bhayat the grant lapses.
If on a true construction the grant is of the nature
indicated above, then no question of reading an implied term
in the grant arises; nor is there any necessity of
determining whether the petitioner has become a ruler in the
sense in which his father was a ruler of the Vadia State.
Whatever be the reason for which the petitioner has ceased
to be a Bhayat, either by reason of the death of his elder
brother or by reason of his becoming a ruler in the limited
sense of the Constitution, he has ceased to be a Bhayat and
the grant being given as Bhayat for
528
permanent enjoyment as Kapal-Giras, it has come to an end.
In that view of the matter the petitioner must be held to
have failed to make out any infringement of his fundamental
:’right by reason of the notification dated May 23, 1952.
The infringement which the petitioner complains of is
deprivation of his property by State action and he bases his
right on the terms of the grant. If the grant is not an
absolute grant in the sense in which the petitioner
contends, but is a grant which by its very nature contains a
defeasance clause, then the petitioner cannot found his
claim on any violation of his fundamental right.
The petition is therefore dismissed with costs.
Petition dismissed.
