PETITIONER:
MAHARAJ DHIRAJ HIMMATSINGHJI & ORS.
Vs.
RESPONDENT:
STATE OF RAJASTHAN & ANR.
DATE OF JUDGMENT12/11/1986
BENCH:
THAKKAR, M.P. (J)
BENCH:
THAKKAR, M.P. (J)
KHALID, V. (J)
CITATION:
1987 AIR 82 1987 SCR (1) 208
1987 SCC (1) 52 JT 1986 851
1986 SCALE (2)762
ACT:
United State of Rajasthan Ordinance I of 1949, section
3(ii)-Meaning of the 'Law' explained therein--Whether the
order (Ex. 1) dated 13.9.1946 passed by the Maharaja grant-
ing an annual allowance of Rs.30,000 to each of his four
Maharaj Kumars with respective effect from the date of their
birth, a "law" within the meaning of section 3(ii) of the
Ordinance, so as to bind the State of Rajasthan.
HEADNOTE:
Jodhpur was a sovereign State till April 6, 1949. The
said Jodhpur State merged with the other sovereign States to
form the United State of Rajasthan on April 7, 1949. On
April 7, 1949, Ordinance No. 1 of 1949 was promulgated which
provided for the continuance of the laws of the covenenting
States (which included the Jodhpur State) in the United
State of Rajasthan, by virtue of section 3 which provided,
inter alia, that all laws in force in the aforesaid cove-
nanting States immediately before the commencement of the
Ordinance shall continue to be in force.
On September 13, 1946, some two and a half years prior
to the merger of the then State of Jodhpur with the United
States of Rajasthan, the then Ruler of Jodhpur passed an
order CB/7114 (Ex. 1) granting an annual allowance of
Rs.30,000 per annum to each of the four Maharajkumars from
the dates of their birth and for the period of their minori-
ty. The amounts claimed by the sons by filing our different
suits in 1955 were decreed by the Trial Court. The appeals
preferred by the State were allowed by the High Court hold-
ing that the order dated 13.9.49 granting the annual allow-
ance was not a 'law' within the meaning of section 3 of the
Ordinance. Hence the appeals by certificate granted under
Article 133(1)(a) of the Constitution.
Dismissing the appeal, the Court,
HELD: 1.1 In substance the amount directed to be paid
as per Order Ex. I was nothing else but "a gift" by the then
Ruler to his.sons, unrelated to any legal rights of the said
sons (appellants). It did not create any legal obligation
enforceable against the State of Rajasthan inasmuch as the
order in question was not a 'law' obtaining in the then
State of Jodhpur. And accordingly it cannot be held that the
said order
210
continued to prevail as a 'law' in the State of Rajasthan
under the 1949 ordinance or any other law. The order cannot
therefore be enforced against the State of Rajasthan treat-
ing it as a 'law' creating a legally enforceable obligation.
[216C-D, H-217B]
1.2 Having regard to the language of the order itself,
it appeared to be an executive order conferring a grant (or
a gift) on the appellantsplaintiff. It did not have the
characteristics of a legislative measure and did not consti-
tute a law inasmuch as it failed to pass the tests laid down
by the Supreme Court. [215C-D]
State of Gujarat v. Vora Fiddali, AIR 1964 SC 1043 =
[1964] 6 SCR 461; Narsingh Pratap Singh Deo v. Sate of
Orissa, AIR [1964] SC 1793 = [1964] 7 SCR 112; State of
Madhya Pradesh v. Bhargavendra Singh, AIR 1966 SC 704 =
[1966] 2 SCR 56; and State of Madhya Pradesh v. Lal Rampal,
AIR 1966 SC 821 = [1966] 2 SCR 53, referred to.
1.3 In so far as it relates to the period anterior to
the passing of the order (stretching from 8 to 21 years) the
order cannot be said to be an order passed in connection
with his maintenance of the junior members of the Ruler's
family for they had already been maintained at the expense
of the State exchequer as revealed by the evidence, includ-
ing the budget estimates. [217D]
1.4 "Jagir" has been associated with the grant in re-
spect of land revenue. In Thakur Amar Singhji's case, the
Supreme Court construed the term "jagir" in that sense only.
Though the expression "Jagir" would also be applicable to
maintenance grants in favour of persons who were not culti-
vators, such as the members of the Ruling family, the grant
has been construed in relation to rights in respect of land
revenue recoverable from the actual tillers by intermedi-
aries known as Jagirdars. Testing the grunt said to have
been made under the order in question by the Ruler of Jodh-
pur in favour of the appellants, it cannot be said that it
is a grunt of a 'Jagir' in this sense, for, no question of
alienation of land revenue in favour of the appellants is
involved. All that the Ruler has done is to order that a
particular amount of money be paid in respect of a specified
period anterior to the date of the order at the specified
rate. Further the order in question providing for payment of
annual allowance for the past years during which the appel-
lants had already been maintained by the State exchequer
lacks in the essential ingredients which would justify
characterising the order as a rule or a regulation. To put
it somewhat crudely, divesting of refinement, the
211
order merely directs payment of a specified sum to the
appellants which payment has no nexus with any services
rendered by them or any customary right enjoyed by them by
virtue of their status as junior members of the family, but
merely by reason of the fact that the appellants were the
sons of the Ruler on whom the Ruler intended to confer cash
benefit. [217F-G, 218B-D, 219H-220B]
Thakur Amarsinghji v. State of Rajasthan, [1955] 2 SCR
p. 303; and Madhaorao Phalke v. The State of Madhya Bharat,
[1961] 1 SCR p. 957. distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals No. 2290 (N)
of 1970 and 97 to 99 of 1972.
From the Judgment and Order dated 6.5.1970 of the Rajas-
than High Court in First Appeal Nos. 134, 119, 120, 121 of
1960.
Harish Salve. Mrs. A.K. Verma and D.N. Mishra for the
Appellants.
V.M. Tarkunde, V.C. Mahajan, S.K. Jain, S, Atreya, E.K.
Gupta and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by
THAKKAR, J. Whether the High Court was justified in
reversing the judgment and decree passed by the trial court
in favour of the four sons of the Sovereign Ruler of the
then State of Jodhpur in the context of an order Passed by
the said Ruler, and in dismissing the suits instituted by
them against the State of Rajasthan for the recovery of
various amounts under the said order, it the problem in
these appeals2 by the unsuccessful plaintiffs. That order
issued by the Ruler inter alia provided that an annual sum
of Rs.30,000 be paid to each of his aforesaid sons (de-
scribed as Maharajkumars) by way of an annual allowance with
retrospective effect from the date of their birth till the
date of their attaining majority.
On September 13, 1946, some two-and-a-half years prior
to the merger of the then State of Jodhpur with the United
States of Rajasthan (which event occurred on April 7, 1949),
the then Ruler of
1. Order No. C.B./7114 dated 13th September, 1946. (Ex. 1).
2. By certificate granted under Article 133(1)(a) of the
Constitution of India.
212
the said State passed order Ex. 1 which is the foundation of
the suits giving rise to the present group of appeals.
The said order in so far as material reads as
under:–
“His Highness the Maharaja Sahib Bahadur has
been pleased to order that with a view to
making suitable provision for the maintenance
of younger Maharajkumar and Shri Baiji Lal
Sahiba:
(i) XXXXX
(ii) xxxxx
(iii) An annual allowance of Rs.30,000
per annum each be granted to all younger
Maharajkumars from the dates of their birth
for the period of their minority.
(iv) XXXXXX
(v) xxxxxxx.”
The amounts claimed by each of the four sons in the
suits instituted by them in 1955 was in respect of the claim
for annual allowance by way of grant at Rs.30,000 per annum
computed retrospectively from the dates of their birth till
the date of the passing of the order, that is to say, till
September 13, 1946. The particulars relating to the claim
may be tabularized as under:–
Appeal No. Name of the Date of Period or Amount before the appellant. Birth which claimed Supreme allowance Rs. Court is claimed
C.A. 97(N) Devisinghji 20.9.1933 20.9.1933
of 1972 to 2,34,550
13.9.1946
(13 years &
7 days).
213
C.A. 98(N) Dalipsinghji 20.10.1937 20.10.1937
of 1972 to 1,61,050
13.9.1946
(8 years, 11
months &
11days).
C.A.99(N) Harisinghji 21.9.1929 21.9.1929
of 1972 to 3,06,500
( 17 years
& 10 days)
C.A. 2290(1) Himmat- 21.6.1925 21.6.1925
of 1970 singhji to 4,42,000
13.9.1946
( 17 years &
10days)
The following facts have been established:–
(1) Jodhpur was a sovereign State till April
6, 1949.
(2) The said Jodhpur State merged with
the other Sovereign States to form the United
State of Rajasthan on April 7, 1949.
(3) On April 7, 1949, an ordinance was
promulgated which provided for the continuance
of the laws of the covenanting States (which
included Jodhpur State) in the United State of
Rajasthan by virtue of Section 3 which provid-
ed inter alia, that all laws in force in the
aforesaid covenanting States immediately
before the commencement of the Ordinance shall
continue to be in force.
(4) On April 7, 1949, administrators
were appointed in respect of different States
which had merged in the State of Rajasthan.
The High Court allowed the appeals preferred by the
State and dismissed the suits instituted by the sons of the
late Ruler of Jodhpur on the following reasoning:–
(1) The Order(Ex. 1), on the basis of which
the claim of
214
the plaintiffs was founded was not passed by
the then Ruler in his capacity as the Head of
the State in the discharge of any legal li-
ability or obligation subsisting in favour of
his four sons. It was an ex-gratia payment
ordered to be made by him in his personal
capacity as the father of the four plaintiffs
and not in his capacity as the Sovereign Ruler
of the State inasmuch as the order for payment
was not supported by any law or custom having
the force of law in the then State of Jodhpur.
(2). The cash allowance ordered to be
paid to the four plaintiffs as per Order (Ex.
1) retrospectively for the past period preced-
ing the date of making of the order was in
substance a gift by the ruler in his personal
capacity to his children and not an enforce-
able obligation incurred by the Sovereign
Ruler vis-a-vis the plaintiffs.
(3) On the aforesaid premises the amount
which had not yet been recovered in respect of
the past period could not be recovered from
the State of Rajasthan as there was no legal
and enforceable obligation against the said
State.
It was contended before the High Court that on taking
into account the true nature of the order (Ex. 1) it was a
law within the meaning of Section 3 (ii) of Ordinance No. 1
of 1949, the order had all the characteristics of law that
is to say, of a binding rule of conduct “of the will of the
Sovereign”. Since this was a law in the Sovereign State of
Jodhpur, its operation continued on the formation initially
of the United State of Rajasthan and subsequently of the
State of Rajasthan. The High Court negatived this contention
relying on the law enunciated by this Court in a catena of
decisions. 2 The view taken in the
1. In this section “Law” means any Act. Ordinance, regula-
tion, rule, order or bye-law which having been made by a
competent Legislature or other competent authority in a
Covenanting State. has the force of law in that State.”
2. A.I.R. 1964 S.C. 1043 = [1964] 6 SCR 461. (State of
Gujarat v. Vora Fiddali ).
A.I.R. 1964 S.C. 1793 = [1964] 7 SCR 112.
(Narsingh Pratap Singh Deo v State of Orissa)
A.I.R. 1966 S.C. 704 = [1966] 2 SCR 56.
(State of Madhya Pradesh v. Bhargavendra Singh).
A.I.R. 1966 S.C. 820 = [1966] 2 SCR 53.
(State of Madhya Pradesh v. Lal Rampal).
215
aforesaid decisions in substance was that every order passed
by a Sovereign Ruler was not ‘law’ inasmuch as it was not
necessarily an order passed in the discharge of its legisla-
tive function. The Ruler of the Sovereign State, when he
passes an order, may be acting in any one of the three
spheres namely, legislative sphere, executive sphere or the
judicial sphere, though all the three capacities were com-
bined in him. All the same, only that order would constitute
‘law’, which was passed in exercise of the powers of the
Sovereign in the legislative. sphere, and none other. An
order passed by the Sovereign in his executive capacity, if
it is not the result of a legislative process, and if it is
not calculated or designed to bind as a rule of conduct,
cannot be characterized as a ‘law’. If the result of the
order was no more then to bring about a contract, or a grant
or a gift, it would not constitute ‘law’. The High Court was
right in taking the view that having regard to the language
of the order itself, it appeared to be an executive order
conferring a grant (or a gift) on the plaintiffs appellants.
It did not have the characteristics of a legislative measure
and did not constitute a law inasmuch as it failed to pass
the earlier mentioned tests evolved by this Court in the
matter of State of Gujarat v. Vora Fiddali, (supra) and
Narsingh Pratap Singh Deo v. State of Orissa (supra).
It appears to us that in fact the then Ruler of Jodhpur
was making a gift in favour of the appellants. It is evident
from the fact that the amount ordered to be paid at the rate
of Rs.30,000 per annum is in respect of the preceding years.
The four sons had. admittedly, already been maintained and
brought up with due dignity and decorum, prior to the pass-
ing of the order in question. Since they had already been
maintained in a manner and style befitting their status and
dignity, at the expense of the State, there was no question
of granting any allowance in respect of the (past) period
during which they had already been maintained. There is
therefore no escape from the conclusion that it was by way
of a gift albeit. without saying so in so many words. The
fact that the expression ‘gift’ has not been employed did
not detract from this obvious conclusion. It was an amount
ordered to be paid by the Ruler to his sons. It was clearly
a gift, inasmuch as it is not shown that till the date of
the order any obligation had been incurred by the grantor in
favour of the grantees either under any law or under
1. As per order Ex.1 dated 13th September.1946.
2. As disclosed by the Budget Estimate of the State of
Jodhpur recorded at Ex. A-10 to Ex. A-12.
216
any custom. It has of course been argued on behalf of the
appellants that under the ‘custom’ of the State, the Ruler
was bound to maintain his sons. To say that the Ruler was
bound to maintain the appellants is not to say that the
Ruler was obliged to make a gift in respect of the past
period during which the appellants had ‘already’ been
maintained. It is not the case of the appellants, and there
is no evidence to that effect, that there was a custom of
making any cash allowance every year besides being main-
tained with due dignity and decorum at the cost of the State
exchequer. No such allowance was shown to have been made in
the past. What, it may be wondered, was the occasion for
making a retrospective allowance for a period ranging from 8
years to 17 years by the Order (Ex. 1) at a point of time,
just two-and-a-half years before the merger’? In fact the
circumstances might well give rise to an inference that it
was ‘gift’ being made in anticipation of the forthcoming
merger. Be that as it may, at best it is a gift which has
nothing to do with any customery obligation of the Ruler to
maintain the sons, which obligation was already fulfilled by
the Ruler in bringing up the appellants with due dignity and
decorum at the cost of the State for all the past years till
the passing of the said order. A communication addressed by
the Chief Minister of the then State of Jodhpur to the
Finance Minister prior to the passing of the aforesaid
order: supports and strengthens the conclusion that the
allowance which was ordered to be paid had nothing to do
with the past maintenance as will be evident from the fol-
lowing extract the refrom:–
“His Highness has expressed a wish that ‘his
two sons Maharaj Kumars Himmat Singhji and
Hari Singhji should now be placed on an allow-
ance to be granted by the State as a prelimi-
nary to their being given Jagirs later on. His
Highness’ idea is that if they receive an
allowance and it is carefully husbanded they
should accumulate some surplus to help them
when they become Jagirdars. His Highness
considers that an allowance of Rs.5,000 per
mensem in each case is the correct figure.”
We are therefore satisfied that the High Court was right in
taking the view that the order for paying annual allowance
at Rs.30,000 for the past years was not made in the dis-
charge of any legal liability or obligation of the Ruler
under any law or custom having the force of law. It was
merely an ex-gratia payment in the nature of a gift which
could not
1. Ex. A.6 dated
2. Ex.1
217
be enforced against the State. The relevant part of the
order cannot be construed as a ‘law’ obtaining in the then
State of Jodhpur. And accordingly it cannot be held that the
said order continued to prevail as a ‘law’ in the State of
Rajasthan under the 1949 ordinance or any other law. The
order cannot therefore be enforced against the State of
Rajasthan treating it as a ‘law’ creating a legally enforce-
able obligation.
It was contended that the purpose of granting mainte-
nance allowance in cash to meet the expenditure from the
civil list was to enable the junior members of the Ruler’s
family to accumulate some surplus to help them when they
become jagirdars in due course on attaining majority. It was
argued that if the allowance had been granted earlier, the
allowance could have been accumulated by the beneficiaries
and since it was not granted earlier, it was granted with
retrospective effect. We cannot accede to this submission.
In so far as it relates to the period anterior to the pass-
ing of the order (stretching from 8 to 21 years) it cannot
be said to be an order passed in connection with the mainte-
nance of the junior members of the Ruler’s family for they
had already been maintained at the expense of the State
exchequer as revealed by the evidence, including the budget
estimates.1
Another argument addressed by counsel for the appellants
was that the annual allowance ordered to be paid to the
junior members of the family of the Ruler has the same legal
status as a ‘Jagir’, and that the order granting such an
allowance would have the force of law. The submission is
sought to be buttressed by two decisions of this Court. In
the first instance support is sought from Thakur Amarsinghji
v. State of Rajasthan, [1955] 2 S.C.R.p. 303. This Court was
concerned with the constitutional validity of Rajasthan Land
Reforms and Resumption of Jagirs Act in Thakur Amarsinghji’s
case. In the course of the discussion, the Court had an
occasion to consider the import of the expression ‘Jagir’.
What emerges from the discussion is that the term ‘Jagir’
originally connoted grants made by Rajput Rulers to their
clansmen in lieu of services rendered or to be rendered.
With passage of time, the term ‘Jagir’ came to be applied to
grants made for religious and charitable purposes and even
to non-Rajputs. The Court has then proceeded to make it
clear that both in its popular sense and in legislative
practice the word ‘Jagir’ has come to be used as connoting
all grants which conferred on the grantees rights in respect
of land revenue. And it was in this sense that the term
‘Jagir’ was construed under Article 31A of the Constitution
of India. What is of significance is that jagir has been
1. Ex. A-11
218
associated with the grant in respect of land revenue. Ac-
cordingly the Court proceeded to observe that considering
the world jagir in that sense it must be held that a jagir
was meant to cover all grants in which the grantees had only
rights in respect of land revenue and were not tillers of
the soil. The expression ‘Jagir’ would also be applicable to
maintenance grants in favour of persons who were not culti-
vators such as the members of the ruling family. However,
the grant has been construed in relation to rights in re-
spect of land revenue recoverable from the actual tillers by
intermediaries known as Jagirdars. Testing the grant said to
have been made under the order in question by the Ruler of
Jodhpur in favour of the appellants, it is futile to contend
that it is a grant of a ‘jagir’ in this sense for no ques-
tion of alienation of land revenue in favour of the appel-
lants is involved. All that the Ruler has done is to order
that a particular amount of money be paid in respect of a
specified period anterior to the date of the order at the
specified rate. There is nothing in Thakur Amarsinghji’s
case which could come to the rescue of the appellants in
support of the contention that the allowance in question
would constitute a ‘Jagir’. It was argued as a matter of
logical corrollary that since it was a jagir, the order
confering the jagir could be construed as a ‘law’ even if it
was not a legislative measure promulgated by the Ruler.
Since the first premise that the allowance constitutes
‘Jagir’ is found to be lacking in substance the submission
urged as a corrollary of this premise must also fail to the
grounds as a-matter of logical necessity.
Reliance was also placed on Madhaorao Phalke v. The
State of Madhya Bharat, [1961] 1 S.C.R.p. 957 in support of
the contention that the grant made in favour of the appel-
lants would constitute ‘law’ and that the State of Rajasthan
would therefore be under a legal obligation to make payment
of the annual allowance to the appellants as provided in the
order. The submission, in our opinion, is not well founded.
Madhaorao’s case is not an authority for the proposition
that any order passed by the sovereign directing payment of
an allowance would constitute law of the State concerned
which would have the force of ‘law’ in the covenanting
States by virtue of the provision made for continuing the
existing laws in the covenanting States. The question which
had arisen before this Court in Madhaorao’s case was as
regards the kalambandis’ issued by the then Ruler of Gwalior
conferring a right to receive Rs.21 and annas 8 per month in
favour of an Ekkan. It may be mentioned that the Ekkans were
a class of horsemen who formed part of the Peshwa’s Cavalry.
They were foreigners and they brought with them their own
horses and accountrements. After making an allowance for the
fact that they would have to pay for the
219
maintenance of the horses, a provision for payment of Rs.21
and annas 8 per month was made, by way of ‘Bachat’. Whether
the right to receive this amount was a statutory right, in
other words, whether the kalambandis on which the rights
were founded, constituted rules and regulations having the
force of law was the problem posed before the Court in
Madhaorao’s case. The Court considered the nature of the
provisions contained in the documents and came to the con-
clusion that the documents unambiguously bore the imprint of
the character of a statute or regulation having the force of
a statute inasmuch as it recognised and conferred:
(i) hereditary rights;
(ii) it provided for the adoption of a
son by a widow of the deceased holder;
(iii) it provided for the maintenance of
widows out of the funds specially set apart
for that purpose;
(iv) it provided for the offering of a
substitute when the holder became old or
otherwise became unfit to render services; and
(v) it also provided for protection in
respect of the execution of decree against the
amount payable under the kalambandi.
Having taken into account all these features of the grant,
the Court proceeded to observe:
“In our opinion, having regard to the contents
of the two orders and the character of the
provisions made by them in such a detailed
manner it is difficult to distinguish them
from statutes or laws; in any event they must
be treated as rules or regulations having the
force of law…”
Far from supporting the claim of the appellants, the deci-
sion in Madhaorao’s case highlights the fact that the order
in question providing for payment of annual allowance for
the past years during which the appellants had already been
maintained by the State exchequer lacks in the essential
ingredients which would justify characterising the order as
a rule or a regulation. To put it somewhat crudely, divest-
ing of refinement, the order merely directs payment of a
specified sum to
220
the appellants which payment has no nexus with any services
rendered by them or any customary right enjoyed by them by
virtue of their status as junior members of the family, but
‘merely by reason of the fact that the appellants were the
sons of the Ruler on whom the Ruler intended to confer cash
benefit. In our opinion, what has been granted under the
aforesaid order is nothing but an ex-gratia payment or a
gift.
Lastly it was contended that the junior members of the
family of the Ruler were entitled to a maintenance allowance
during their minority as per the custom in the State and
that they were entitled to grant of Jagir Upon their attain-
ing majority as per the same custom. The allowance made to
the junior members during their minority was treated under a
separate head of the State Budget. On these premises it ,was
argued that the order in question must of necessity be
construed as legislative in character. We are not impressed
by this submission. The allowance made under the order had
no nexus with any right to a jagir. All the appellants were
minors at the relevant point of time and they had not even
become entitled to jagirs. As discussed earlier the expres-
sion ‘Jagir’ is apposite only in the context of alientation
of land revenue recoverable from the tillers. What was
granted by the Ruler to the appellants had nothing to do
with a jagir. Even according to the custom pleaded by the
appellants the question of granting a jagir would have
arisen only after they had attained majority. The payment
which was directed to be made to them was not referable
either to a jagir or to any other customary right. It was
merely a direction to pay a particular amount computed on a
particular basis referable to a past period commencing from
the date of their birth. We are therefore fully convinced,
and firmly of the view, that in substance the amount direct-
ed to be paid as per Order Ex. 1 was nothing else but a
‘gift’ by the then Ruler to his sons, unrelated to any legal
rights of the appellants. And that it did not create any
legal obligation enforceable against the State of Rajasthan
inasmuch as the order in question was not a ‘law’. There is
thus no substance in any of the submissions urged on behalf
of the appellants. The view taken by the High Court is
unexceptionable and the appeals are devoid of merit. We
accordingly dismiss the appeals. There will be no order as
to costs.
S.R. Appeals dismissed.
221