{"id":132526,"date":"1960-04-29T00:00:00","date_gmt":"1960-04-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shrimant-dattaji-raobahirojirao-vs-shrimant-vijayasinhrao-and-on-29-april-1960"},"modified":"2015-06-06T21:10:59","modified_gmt":"2015-06-06T15:40:59","slug":"shrimant-dattaji-raobahirojirao-vs-shrimant-vijayasinhrao-and-on-29-april-1960","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shrimant-dattaji-raobahirojirao-vs-shrimant-vijayasinhrao-and-on-29-april-1960","title":{"rendered":"Shrimant Dattaji Raobahirojirao … vs Shrimant Vijayasinhrao And … on 29 April, 1960"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shrimant Dattaji Raobahirojirao … vs Shrimant Vijayasinhrao And … on 29 April, 1960<\/div>\n
Equivalent citations: 1960 AIR 1272<\/div>\n
Author: S Das<\/div>\n
Bench: Das, S.K.<\/div>\n
           PETITIONER:\nSHRIMANT DATTAJI RAOBAHIROJIRAO GHORPADE\n\n\tVs.\n\nRESPONDENT:\nSHRIMANT VIJAYASINHRAO AND ANOTHER.\n\nDATE OF JUDGMENT:\n29\/04\/1960\n\nBENCH:\nDAS, S.K.\nBENCH:\nDAS, S.K.\nSARKAR, A.K.\nHIDAYATULLAH, M.\n\nCITATION:\n 1960 AIR 1272\n\n\nACT:\nSaranjam Estate-Maintenance grant to junior member-Power  of\nGovernment   to\t  resume  and  re-grant-Custom\t of   lineal\nprimogeniture,\t extent\t and  effect   of-Suit\t challenging\nGovernment  order  of  resumption  and\tre-grant-If  barred-\nSaranjam  Rules-Bombay Revenue jurisdiction Act, 1876  (Bom.\nX of 1876), s. 4.\n\n\n\nHEADNOTE:\nUpon  the  death of the holder in 1932,\t the  Government  of\nBombay\tby  order dated June 7, 1932, resumed  the  Saranjam\nestate of Gajendragad and re-granted the same to his  eldest\nson.  By the same order the assignment of some lands out  of\nthe  estate in favour of B, a younger member of the  family,\nby way of maintenance was also continued.  On May 14,  1940,\nB died leaving his widow, A, and his undivided brother, D. A\nasked  the  Government\tfor permission to adopt\t a  son\t but\nwithout\t the permission being granted adopted V on July\t 10,\n1941.\tBy an order dated December 17, 1941, the  Government\ncontinued  the\tmaintenance  grant (Saranjam  potgi)  to  D.\nThereupon V filed a suit against the\tGovernment and D for\nrecovery of the lands on the grounds (i)     that the  order\nof the Government dated December 17, 1941, was ultra  vires,\nnull  and  void,  and  (ii) that by  the  custom  of  lineal\nprimogeniture which prevailed in the family the lands,\tupon\nthe  death  of B and upon the adoption of V by\tA,  devolved\nupon  V\t in preference to D. The suit was  contested,  inter\nalia,  on the grounds: (i) that under the relevant  Saranjam\nRules the interest of B came to an end on his death and\t was\nnot  such  as could devolve upon V despite the\torder  dated\nDecember  17, 1941, (ii) that the alleged family custom\t did\nnot apply to maintenance grants and (iii) that the suit\t was\nbarred\tunder s. 4 Of the Bombay Revenue  jurisdiction\tAct,\n1876:\nHeld,  that  the  plaintiff was not entitled  to  the  lands\neither under the Saranjam Rules or under the custom; further\nthat  the  suit\t was barred by $- 4 of\tthe  Bombay  Revenue\njurisdiction Act, 1876.\n103\n790\nThe  maintenance  grant\t (potgi holding)  was  part  of\t the\nSaranjam  and  was  governed by the  incidents\tof  Saranjam\ntenure\tand by the relevant Saranjam Rules.  Saranjam grants\nwere  granted  or withheld at the will and pleasure  of\t the\nsovereign  power  and  the  grant  was\talways\tsubject\t  to\ninterruption  and  revocation by  resumption,  temporary  or\nabsolute.   On the death of B it was open to the  Government\nto resume the grant and to grant it to D and this is what it\ndid  by\t the order dated December 17, 1941.  The  taking  in\nadoption of the plaintiff by the widow of the deceased could\nnot  affect  the  operation  of\t the  order  passed  by\t the\nGovernment.\nDaulatrao  Malojiyao  v. Province of Bombay (1946)  49\tBom.\nL.R. 270, referred to.\nEven under the custom of lineal primogeniture pleaded by the\nplaintiff,  D was entitled to get the properties  after\t the\ndeath  of B. It was not pleaded that the properties once  so\nvested\twere divested by subsequent adoption by\t the  widow.\nFurther\t it was neither pleaded nor proved that\t the  custom\ntook  away  the\t right\tof  the\t Government  to\t resume\t the\nmaintenance grant and to make a fresh grant thereof.\nSub-clause  4 of the Bombay Revenue jurisdiction Act,  1876,\nbarred\tthe  jurisdiction of civil courts in  respect  of  \"\nclaims\tagainst the Government relating to lands granted  or\nheld  as Saranjam\".  The plaintiff asked for a finding\tthat\nthe  order of December 17, 1941, was null and void  and\t did\nnot affect the properties in suit.  Unless the order was out\nof his way, the plaintiff was not entitled to claim recovery\nof  possession.\t  The claim was one which  fell\t within\t the\nmischief of s. 4 and the suit was barred.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 37 of 1960.
\nAppeal from the judgment and decree dated November 12, 1952,
\nof  the Bombay High Court in First Appeal No. 492  of  1949,
\narising out of the judgment and decree dated the 20th April,
\n1949,  of  the First Class Sub-Judge,  Dharwar,\t in  Special
\nCivil Suit No. 16 of 1943.\n<\/p>\n
S.   N.\t Andley, J. B. Dadachanji, Rameshwar Nath and P.  L.
\nVohra, for the appellant.\n<\/p>\n
Naunit Lal, for respondent No. 1.\n<\/p>\n
B. R. L. Iyengar and T. M. Sen, for respondent No. 2.
\n1960.  April 29.  The Judgment of the Court was delivered by
\nS.   K. DAS, J.-This is an appeal on a certificate given  by
\nthe  High Court of Bombay, from the judgment and  decree  of
\nthe said High Court dated
\n791<\/span>
\nNovember 12, 1952, by which it reversed the decision of\t the
\nCivil  Judge,  First Class, at Dharwar\tdated-,,  April\t 20,
\n1949, in Special Civil Suit No. 16 of 1943.\n<\/p>\n
The  material facts are these.\tGajendragad in Taluk Ron  in
\nthe  district of Dharwar is a Saranjam estate known  as\t the
\nGajendragad Saranjam bearing number 91 in the Saranjam\tlist
\nmaintained  by Government.  Within that estate\tlay  village
\nDindur and survey field No. 302 of Unachgeri, which are\t the
\nproperties in suit.  One Bhujangarao Daulatrao Ghorpade\t was
\nthe holder of the Saranjam estate at the relevant time.\t  In
\n1932  the  Saranjam was resumed and re-granted to  the\tsaid
\nBhunjangarao  by Resolution No. 8969 dated June 7, 1932,  of
\nthe Government of Bombay in the Political Department.\tThis
\nResolution said:\n<\/p>\n
”  The\tGovernor in Council is pleased to  direct  that\t the
\nGajendragad  Saranjam  should be formally  resumed  and\t re-
\ngranted to Bhujangarao Daulatrao Ghorpade, the eldest son of
\nthe deceased Saranjamdar Daulatrao Bhujangarao Ghorpade, and
\nthat  it should be entered in his sole name in the  accounts
\nof the Collector of Dharwar with effect from the date of the
\ndeath  of the last holder.  The Collector should take  steps
\nto  place the Saranjamdar in possession of the\tvillages  of
\nthe Saranjam estate which were in possession of the deceased
\nSaranjamdar.\n<\/p>\n
The  Governor  in  Council  agrees  with  the  Commissioner,
\nSouthern   Division,  that  the\t assignments  held  by\t the
\nBhaubands as potgi holders should be continued to them as at
\npresent.”\n<\/p>\n
One  of\t the  younger branches of the  Ghorpade\t family\t was
\nBabasaheb   Bahirojirao\t  Ghorpade,  to\t  be   referred\t  to
\nhereinafter as Babasaheb.  He held by way of maintenance (as
\npotgi  holder)\tthe aforesaid village of Dindur\t and  survey
\nfield  No.  302 of Unachgeri.  He had an  undivided  brother
\ncalled\tDattojirao, who was defendant No. 2 in the suit\t and
\nis appellant before us.\t In this judgment we shall call\t him
\nthe  appellant.\t  Babasaheb died on May 14,  1940.   On\t his
\ndeath he left a widow named Abayabai and the appellant,\t his
\nundivided  brother.   On  July 10,  1941,  Abayabai  adopted
\nVijayasinhrao\tas   a,\t son  to   her\t deceased   husband.
\nVijayasinha was the plaintiff who brought the suit’
\n792<\/span>
\nand is now the principal respondent before us.\tIt will\t  be
\nconvenient  if\twe call him  the  plaintiff-respondent,\t and
\nstate  here  that he was the natural  son  of  Bhujaugarao’s
\nyounger brother, another Dattajirao to be distinguished from
\nthe appellant who also bears the same name.  On\t Babasaheb’s
\ndeath  Abayabai\t asked\tfor sanction of\t Government  to\t her
\ntaking\ta boy in adoption; this application was\t opposed  by
\nthe  appellant.\t  On December 17, 1941,\t the  Government  of
\nBombay passed a Resolution in the following terms:
\n” 1. Government is pleased to direct that the Saranjam potgi
\nholding\t of village Dindur and Survey No. 302 of  Unacbgeri,
\nwhich\twere  assigned\tfor  maintenance  to  the   deceased
\npotgidar, Mr. Babasaheb Bahirajirao Ghorpade, at the time of
\nthe   re-grant\tof  the\t Gajendragad  Saranjam,\t should\t  be
\ncontinued   to\t his  undivided\t brother,   Mr.\t  Dattajirao
\nBabirojirao Ghorpade.\n<\/p>\n
2.Government is also pleased to direct, under Rule 7 of\t the
\nSaranjam  Rules,  that\tthe  new  potgidar,  Mr.  Dattajirao
\nBahirojirao  Gborpade, should give to Bai Abaibai, widow  of
\nthe  deceased Potgidar, Mr. Babasaheb Bahirojirao  Ghorpade,
\nan annual maintenance allowance of Rs. 300 for her life.\n<\/p>\n
3.These\t orders should take effect from the 14th May,  1940,
\ni.e.,  the  date on which the deceased\tpotgidar,  Babasaheb
\nBahirojirao Ghorpade, died.\n<\/p>\n
4.The Commissioner S. D. should be requested to\t communicate
\nthese  orders  to Bai Abaibai, widow of the  late  potgidar,
\nwith reference to her petitions addressed to him and also to
\nthe  Rayats  of Dindur, with reference\tto  their  petition,
\ndated  the  12th  May,\t1941.  The  orders  should  also  be
\ncommunicated to the present Saranjamdar of Gajendragad.”
\nOn  February 8, 1943, the plaintiff-respondent\tbrought\t the
\nsuit against the Province of Bombay as defendant No. 1,\t the
\nappellant  as defendant No. 2 and Abayabai as defendant\t No.\n<\/p>\n
3.  The\t suit was contested by the Province of\tBombay\t(now
\nsubstituted  by\t the  State of Bombay)\tand  the  appellant.
\nAbayabai supported the case of the plaintiff-respondent, but
\nshe died during. the Pendency of the suit.\n<\/p>\n
793<\/span><\/p>\n
The  claim  of\tthe plaintiff-respondent  was  that  on\t his
\nadoption the estate of his deceased adoptive father devolved
\non him by the, rule of lineal primogeniture in preference to
\nthe  appellant.\t The main plea of  the\tplaintiff-respondent
\nwas  stated  in\t paragraph 6 of the plaint,  which  read  as
\nfollows:\n<\/p>\n
” 6. The Government Resolution passed by defendant No. 1  in
\n1941  is  ultra vires and null and void\t for  the  following
\nreasons:\n<\/p>\n
(a)Defendant No. 1 made a re-grant of the Saranjam estate to
\nShrimant  Sardar Bhujaragarao Ghorpade in 1932\tand  therein
\nthe  suit  properties were, according to  defendant  No.  1,
\ncontinued  to  the adoptive father of  plaintiff  Under\t the
\nSaranjam  rules no occasion has arisen for  interference  by
\nGovernment  at this stage.  The re-grant made by  Government
\nwould  in any case be effective during the life-time of\t the
\ngrantee,   viz.,  Shrimant  Sardar   Bhujangarao   Ghorpade.
\nFurther\t the said Shrimant Sardar Bhujangarao  Ghorpade\t was
\nnot consulted by defendant No. 1 before the said  Government
\nResolution.\n<\/p>\n
(b)By the custom of the family to which the family  belongs,
\nthe  estate  of a deceased person devolves by  the  rule  of
\nlineal primogeniture.  Hence after the death of\t plaintiff’s
\nadoptive  father and the adoption of plaintiff himself,\t all
\nthe  estate  vested  in\t plaintiff’s  adoptive\tfather\t has
\ndevolved on the plaintiff in preference to defendant No.  2.
\nThe  action  of\t defendant No. 1 in ignoring  this  rule  of
\nsuccession  prevalent in the family is ultra vires and\tnull
\nand void.”\n<\/p>\n
On the aforesaid pleas, the plaintiff-respondent prayed\t for\n<\/p>\n
(a)  recovery of possession of properties in suit  from\t the
\nappellant, (b) mesne profits, and (c) costs.
\nOn behalf of the Province of Bombay several pleas by way  of
\ndefence\t were taken.  The main pleas were (1) assuming\tthat
\nthe   plaintiff-respondent  was\t validly  adopted,  he\t had
\nnevertheless  no  legal\t claim to  the\tproperties  in\tsuit
\nbecause\t under the relevant Saranjam Rules the\tinterest  of
\nBabasabeb came to an end on his death and was not of such  a
\nnature as would
\n794<\/span>
\ndevolve\t on the plaintiff-respondent despite the  Government
\nResolution  dated  December 17, 1941, (2) that\tthe  alleged
\nfamily\tcustom did not apply to maintenance grants, and\t (3)
\nthat,  in any event, the suit was barred under s. 4  of\t the
\nBombay\tRevenue\t Jurisdiction  Act,  1876.   The   appellant
\nbesides supporting the aforesaid pleas raised the additional
\npleas  that  there was no valid adoption of  the  plaintiff-
\nrespondent  and\t Abayabai was expressly\t prohibited  by\t her
\nhusband from adopting a son.\n<\/p>\n
On these pleadings several issues were framed.\tThe suit was
\noriginally  dismissed on a preliminary ground, namely,\tthat
\nthe  plaint  did  not disclose any  cause  of  action.\t The
\nlearned\t Civil\tJudge  apparently took\tthe  view  that\t the
\nproperties in suit were subject to the Saranjam Rules and on
\nexamining those rules, he came to the conclusion that as the
\nplaintiff-respondent on his adoption became a nephew of\t the
\nappellant  and in that sense was claiming  maintenance\tfrom
\nthe  latter,  it was necessary for him to have\talleged\t the
\nnecessary  circumstances  under which certain members  of  a
\nSaranjam Family are entitled to claim maintenance under Rule
\n7  of  the said Rules and as those  circumstances  were\t not
\npleaded by the plaintiff-respondent, the plaint disclosed no
\ncause  of action.  The High Court rightly pointed  out\tthat
\nthe   plaintiff-respondent   did  not  make  a\t claim\t for
\nmaintenance under Rule 7 of the Saranjam Rules, but  claimed
\nthat the properties in suit devolved on him by reason of his
\nadoption and the custom of lineal primogeniture.  Therefore,
\nthe  High  Court  held\tthat the  claim\t of  the  plaintiff-
\nrespondent  was much more fundamental than a mere  claim  of
\nmaintenance,  and  the learned Civil Judge  had\t misdirected
\nhimself as to the true scope of the suit.  Accordingly,\t the
\nHigh  Court set aside the decree of dismissal  and  directed
\nthe suit to be tried on all the issues.\n<\/p>\n
After  this direction the learned Civil Judge tried all\t the
\nissues.\t Issues 1 and 2 related to the question of adoption,
\nnamely,\t (1) whether the ceremony of adoption  was  properly
\nproved\tand (2) whether Babasaheb during his  life-time\t had
\nprohibited  his wife from making an adoption.  On the  first
\nissue the learned
\n795<\/span>
\nCivil Judge found in favour of the plaintiff-respondent\t and
\non  the\t second against him.  The High\tCourt  affirmed\t the
\nfinding\t on the first issue, and on a careful  and  detailed
\nexamination  of the evidence held on the second\t issue\tthat
\nthe  learned  Civil  Judge was wrong  in  holding  that\t the
\nadoption was invalid by reason of the alleged prohibition of
\nBabasaheb.   The  High\tCourt held that there  was  no\tsuch
\nprohibition,  and the adoption was valid.  We do  not  think
\nthat  this  finding  of the High Court has been\t or  can  be
\nsuccessfully   assailed\t before\t us.   Therefore,  we\thave
\nproceeded  in  this appeal on the basis that  the  plaintiff
\nrespondent was validly adopted by Abayabai on July 10, 1941.
\nWe  go\tnow  to a consideration of those  issues  which\t are
\nmaterial for a decision of this appeal.\t They are: Issue No.
\n3–Does plaintiff prove his title to the suit property ?
\nIssue No. 4–Is it proved that the Government Resolution (D.
\nG.)  No. 8969 of December 17, 1941, is ultra vires and\tnull
\nand void as alleged in the plaint ?\n<\/p>\n
Issue  No.  5-Is  the suit barred under\t section  4  of\t the
\nRevenue Jurisdiction Act ?\n<\/p>\n
Issue  No. 7-Is the alleged custom set up in para.  6(b)  of
\nthe plaint proved ?\n<\/p>\n
On  all these issues the learned Civil Judge  found  against
\nthe  plaintiff-respondent, and held that the latter was\t not
\nentitled  to recover possession Of the properties  in  suit,
\nthat he had failed to prove the custom pleaded in  paragraph
\n6(b)  of  the  plaint, that  the  Government  Resolution  of
\nDecember  17,1941,  was not ultra vires, and that  the\tsuit
\nitself\twas  barred  under  s.\t4  of  the  Bombay   Revenue
\nJurisdiction  Act,  1876.   The\t High  Court  reversed\t the
\ndecision  of  the learned Civil Judge on all  the  aforesaid
\nissues,\t and held that as the properties in suit were  given
\nto  the junior branch of Babasaheb for its  maintenance\t and
\nwere   impartible  and\tgoverned  by  the  rule\t of   lineal
\nprimogeniture,\t they  devolved\t on  the   appellant   after
\nBabasaheb’s death ; but as soon as Babasaheb’s widow
\n796<\/span>
\nmade  a\t valid adoption, the properties were  divested\t and
\ninasmuch  as  the  plaintiff-respondent\t became\t the  eldest
\nmember of the senior branch of Babasaheb’s family, he became
\nentitled  thereto as a result of the combined effect of\t the
\nfamily\tcustom and ordinary Hindu law.\tThe High Court\tsaid
\nthat looked at from this point of view, no question arose of
\nthe validity of the Government Resolution dated December 17,
\n1941,  and  no\trelief for possession  having  been  claimed
\nagainst Government, the suit was not barred under s.   4  of
\nthe Bombay Revenue Jurisdiction Act, 1876.
\nOn  behalf  of the appellant, it has been  very\t strenuously
\nargued that the High Court was in error in holding that\t the
\nproperties  in suit which are part of a Saranjam, vested  in
\nthe  appellant\ton  ‘the death of Babasaheb  and  were\tthen
\ndivested on the adoption of the plaintiff-respondent; it  is
\ncontended  that such a conclusion is inconsistent  with\t the
\nnature of a Saranjam tenure and furthermore, the  properties
\nin suit having vested in the appellant by reason of the\t re-
\ngrant dated December 17, 1941, they could not be divested by
\nthe adoption made on July 10, 1941.  Nor does it follow,  it
\nis  contended, from the custom pleaded in paragraph 6(b)  of
\nthe plaint, apart from the question whether even that custom
\nhas  been proved or not, that the properties in suit  having
\nonce  vested  in the appellant will be divested on  a  valid
\nadoption.   Secondly,  it has been contended that  the\tHigh
\nCourt  was also in error in holding that there was no  claim
\nagainst Government within the meaning of the fourth  sub-cl.
\nof  s.\t4(a) of the Bombay Revenue Jurisdiction\t Act,  1876.
\nThe argument before us has been that there was such a claim,
\nand no Civil Court had jurisdiction to determine it.
\nWe are satisfied that these arguments are correct and should
\nbe accepted.  The claim of the plaintiff respondent that the
\nproperties  in suit devolved on him on his adoption  may  be
\nexamined either from the point of view of the Saranjam Rules
\nor  the\t custom which he pleaded in paragraph  6(b)  of\t the
\nplaint.\t  Let us examine the claim first from the  point  of
\nview of the Saraniam Rules assuming here that they apply,
\n797<\/span>
\nas far as practicable, to maintenance grants (potgis) within
\nthe  Saranjam.\t In the Resolution of June 7,  1932,  quoted
\nearlier, the Government of Bombay treated the potgi  holders
\nas  being within the Saranjam and made provision  for  them.
\nThe Resolution of December 17, 1941, also proceeded on\tthat
\nfooting.  Two earlier Resolutions, one of 1891 (Ex. 100) and
\nthe  other  of\t1936 (Ex. 101), also treated  the  whole  of
\nGajendragad and also parts thereof as a Saranjam.  Babasaheb
\nin his lifetime wanted to surrender the grant in his  favour
\nto  the Saranjamdar, but Government refused to\taccept\tsuch
\nrelinquishment.\t  Even\tAbayabai  asked\t for  permission  of
\nGovernment  to take a boy in adoption, which permission\t she
\ndid  not obtain.  All this shows that the potgi holding\t was
\npart  of  the Saranjam and was treated as such\tby  all\t the
\nparties concerned.\n<\/p>\n
What  is  a Saranjam ? The word ” Saranjam  literally  means
\napparatus, provisions or materials.  In his Glossary, Wilson
\ndefines\t Saranjam as temporary assignments of  revenue\tfrom
\nvillages  or  lands for support of troops  or  for  personal
\nservice usually for the lifetime of the grantees.  Dr. G. D.
\nPatel  in  his\tbook  on  ”  The  Indian  Land\tProblem\t and
\nLegislation has said:\n<\/p>\n
”  According to the account given by Col.  Etheridge in\t his
\npreface\t to  the Saranjam List, it was the practice  of\t the
\nformer\tGovernments, both the Muslims and the  Marathas,  to
\nmaintain  a  species  of feudal aristocracy  for  the  State
\npurposes by temporary assignments of revenue either for\t the
\nsupport\t of the troops or personal service, the\t maintenance
\nof  official  dignity or for other  specific  reasons.\t The
\nholders\t of such lands were entrusted at the time  with\t the
\nnecessary   powers   for  enabling  them  to   collect\t and
\nappropriate  the  revenue  and\tto  administer\tthe  general
\nmanagement  of\tthe  lands.  Under  the\t Muslim\t rule,\tsuch
\nholdings  were called Jahagirs and under the  Maratha  rule,
\nthey came to be called Saranjam.  However, this\t distinction
\nbetween\t these\ttenures ceased to exist during\tthe  Maratha
\nperiod.\t  At  the time of the introduction  of\tthe  British
\nrule,
\n104<\/span>
\n798<\/span>
\nthe  difference between a Jahagir and a Saranjam  ceased  to
\nexist,\tto all intents and purposes.  The two  terms  became
\nconvertible  and  all such grants came to be  known  by\t the
\ngeneral\t term “saranjam”.  Apart from the  Saranjam  grants,
\nwhich were found only in the Deccan, there were other grants
\nof a political nature found scattered over the whole  State.
\nTheir  origins did not materially differ from those  of\t the
\nSaranjam with the result that the British treated them under
\nthe same rules called the Saranjam Rules “.
\nThe  Saranjam  Rules  were made in exercise  of\t the  powers
\nreferred to in r. 10 of Schedule B of Act Xi of 1852 and  of
\nthe  second  sub-cl. to el. 3 of s. 2 of Bombay Act  VII  of
\n1863.  We may here reproduce some of these Rules:
\n”   Rule  I-Saranjams  shall  be  ordinarily  continued\t  in
\naccordance  with  the decision already passed or  which\t may
\nhereafter be passed by Provincial Government in each case.
\nRule 2-A Saranjam which has been decided to be\thereditarily
\ncontinuable  shall  ordinarily descend to  the\teldest\tmale
\nrepresentative in the order of primogeniture, of the  senior
\nbranch\tof  the\t family descended  from\t the  First  British
\ngrantee\t or  any  of  his brothers  who\t were  undivided  in
\ninterest.   But Provincial Government reserve to  themselves
\nthe rights for sufficient reasons to direct the\t continuance
\nof  the Saranjam to any other member of the said family,  or
\nas an act of grace, to a person adopted into the same family
\nwith the sanction of Provincial Government.  When a saranjam
\nis  thus continued to an adopted son, he shall be liable  to
\npay  to Provincial Government a nazarana not  exceeding\t one
\nyear’s\tvalue of the saranjam, and it shall be\tlevied\tfrom
\nhim in such instalments as Provincial Government may in each
\ncase direct.\n<\/p>\n
Rule  5-Every saranjam shall be held as a life\testate.\t  It
\nshall be formally resumed on the death of the holder, and in
\ncases  in  which it is capable of  further  continuance,  it
\nshall be made over to the next holder as a, fresh grant from
\nProvincial
\n799<\/span>
\nGovernment,  unencumbered by any debts or charges save\tsuch
\nas may be specially imposed by Provincial Government itself
\nRule  7-Every saranjamdar shall be responsible for making  a
\nsuitable  provision  for  the maintenance of  the  widow  or
\nwidows\tof the preceding saranjamdar, his own  brothers,  or
\nany  other  member of his family who, having a\tvalid  claim
\narising from infancy, mental or physical deformity rendering
\nsuch member incapable of earning a livelihood, may be deemed
\ndeserving of support at his hands.  When this obligation  is
\nnot fulfilled by any saranjamdar, Provincial Government\t may
\ndirect\thim to make suitable provision for such\t person\t and
\nmay  fix  the amount, which he shall pay in  each  instance;
\nprovided  that no one who has independent means of his\town,
\nor  is, in the opinion of Provincial  Government,  otherwise
\nsufficiently provided for, shall be entitled to\t maintenance
\nfrom the Saranjamdar.\n<\/p>\n
Rule 8-Every order passed by Provincial Government under the
\nabove  rule  for the grant of maintenance by  a\t Saranjamdar
\nshall hold good’ during his life only
\nThe  true  nature of a Saranjam tenure was considered  by  a
\nFull  Bench of the Bombay High Court in Daulatrao  Malojirao
\nv.  Province  of  Bombay(1)  where  their  Lordships   after
\nreferring  to the earlier decisions in Shekh Sultan Sani  v.
\nShekh Ajmodin (2) and Raghojirao v. Laxmanrao(3) observed:
\n” An examination of the authorities, makes it clear that the
\nwhole  structure  of  a Saranjam tenure is  founded  in\t the
\nsovereign  right,  which can only change by conquest  or  by
\ntreaty.\t  So founded, jagirs and Saranjams, with the  feudal
\nincidents  connected with them, are granted or\twithheld  at
\nthe  will  and\tpleasure of the\t sovereign  power,  and,  if
\ngranted,   the\tfixity\tof  tenure  is\talways\tsubject\t  to
\ninterruption  and revocation by resumption, be it  temporary
\nor absolute in character.  No incident normally applicable
\n(1) (1946) 49 Bom.  L.R. 270.  (2) (1892) L.R. 20 I.A. 50.
\n(3) (1912) 14 Bom.  L.R. 1226.\n<\/p>\n
800<\/span><\/p>\n
to private rights between subject and subject can fetter  or
\ndisturb the sovereign will “.\n<\/p>\n
It  seems  to us manifestly clear that\tthe  Saranjam  Rules
\nfurnish no basis for the claim of the plaintiff\t respondent.
\nAbayabai asked for sanction to her taking a boy in adoption.
\nNo  such sanction was given.  On the death of Babasaheb,  it
\nwas  open  to  Government to resume the grant,\tand  by\t its
\nResolution  of December 17, 1941, Government  directed\tthat
\nthe Saranjam potgi holding of village Dindur and Survey\t No.
\n302 of Unachgeri should be continued to the appellant.\tThis
\nreally\tamounted to a resumption and fresh grant and  we  do
\nnot agree with the High Court that the order passed amounted
\nto no more than recognising the legal position according  to
\nthe rule of succession and stood on the same footing as\t any
\norder  of ordinary mutation.  The High Court has  emphasised
\nthe  use of the word ” continued ” in the  Resolution  dated
\nDecember  17, 1941, and has contrasted that Resolution\twith
\nthe earlier Resolution dated June 7, 1932, which was clearly
\na  Resolution giving effect to a resumption and\t regrant  of
\nthe  Gajendragad Saranjam.  It may, however, be pointed\t out
\nthat  in paragraph 2 of the earlier  Resolution,  Government
\nused  the  same word ” continued ” in  connection  with\t the
\nmaintenance   grants,  namely,\tpotgi  holdings\t  within   a
\nSaranjam.   Nothing,  therefore, turns upon the use  of\t the
\nword ” continued ” and if the ]Resolution dated December 17,
\n1941,  is  read\t as a whole it is clear that  the  potgi  of
\nvillage\t Dindur\t and Survey field No. 302 of  Unachgeri\t was
\ngranted to the present appellant.  It was open to Government
\nto pass such an order, and we see no reasons to hold that it
\nwas null and void.  Indeed, the High Court did not say\tthat
\nit  was an invalid order; on the contrary, it said  that  it
\nwas a good order and operated with effect from the death  of
\nBabasaheb.  But it said erroneously in our opinion, that  by
\nreason\tof  the\t subsequent event  of  adoption,  the  order
\nceased, for all practical purposes, to have any effect\tfrom
\nthat  event.  It is well to remember that the adoption\ttook
\nplace  on  July 10, 1941, and the Resolution was  passed  on
\nDecember 17,
\n801<\/span>
\n1941, though it took effect retrospectively from the date of
\ndeath of Babasaheb.  We see no reasons why S, a valid  order
\nmade by Government will cease to have any effect because  of
\nan adoption made by Abayabai without sanction of Government.
\nTo hold that the Government Order ceased to have any  effect
\nby  reason  of\tthe act of a private party  will  be  to  go
\nagainst the very nature of a Saranjam tenure.
\nLet  us\t now examine the claim of the  plaintiff  respondent
\nfrom  the point of view of the custom pleaded  in  paragraph
\n6(b)  of  the plaint.  The custom pleaded was  the  rule  of
\nlineal\tprimogeniture.\tIn its written statement  Government
\nsaid:\n<\/p>\n
”  The family custom alleged in clause (b) is not  admitted,
\nand it is denied that such a custom can apply in respect  of
\nmaintenance  grants.   Under Rule 7 of the  Saranjam  Rules,
\nwhich merely embody the customary law relating to Saranjams,
\nGovernment is given absolute discretion to determine whether
\nor  not to make an order and what provision to make  and  in
\nwhose favour
\nThe appellant said:\n<\/p>\n
” The contents of para. 6(b) of the plaint are not  correct.
\nThe  custom  of\t descent by the\t rule  of  primogeniture  is
\ndenied.\t   This\t  defendant   has  become   the\t  owner\t  by
\nsurvivorship, after the death of Babasaheb “.
\nThe  learned  Civil Judge found that the custom\t pleaded  in
\nparagraph 6(b) of the plaint was not proved.  The High Court
\nhas  not referred to any evidence on which the custom  could
\nbe  said  to  have been proved, but observed that  ”  it  is
\ncommon ground that the properties which had been assigned to
\nthis  branch for its maintenance is impartable and  goes  by
\nprimogeniture”.\t  Even if we assume that the High  Court  is
\nright  in its observation, though in face of the  denial  in
\nthe  two written statements it is difficult to see how\tthis
\ncould  be  common  ground between the parties,\twe  fail  to
\nappreciate   how   the\tassumption  helps   the\t  plaintiff-
\nrespondent.   On  the  operation  of  the  rule\t of   lineal
\nprimogeniture  after the death of Babasaheb,  the  appellant
\nbecame entitled to and got the
\n802<\/span>
\nproperties.   It  was  not pleaded in the  plaint  that\t the
\nproperties  once  vested  by the customary  rule  of  lineal
\nprimogeniture  were divested on subsequent adoption, by\t the
\nwidow.\t No such plea was specifically taken,  but the\tHigh
\nCourt relied on the concession made by learned advocate\t for
\nthe  appellant that under ordinary Hindu law the  properties
\nwhich  were  vested  in the appellant  were  divested  on  a
\nsubsequent  valid  adoption by the widow.   We\tconsider  it
\nunnecessary to go into the vexed question of divesting of an
\nestate\ton a subsequent valid adoption by the widow.  It  is
\nenough to point out that the plaint disclosed no such  case;
\nno  such  issue\t was  raised and it  was  not  open  to\t the
\nplaintiff-respondent  to make out a new case for  the  first
\ntime  in appeal.  The plaintiff-respondent set up  a  family
\ncustom\tof lineal primogeniture different from the  ordinary
\nlaw  of inheritance; it was incumbent on him to\t allege\t and
\nprove the custom on which he relied and to show its  precise
\nextent and how far it prevailed over ordinary Hindu law.  In
\nour  opinion, he failed to plead or prove any family  custom
\nby which the properties devolved on him.  Moreover, in order
\nto  succeed the plaintiff respondent must further  establish
\nthat the custom was such as would bind the Government.\t The
\nappellant and the Government never conceded that the  custom
\nof lineal primogeniture, if it prevailed in the family, took
\naway the right of Government to resume the maintenance grant
\nwhich was part of a Saranjam and make a fresh grant  thereof
\nin accordance with the Saranjam Rules.\n<\/p>\n
Now,  as  to s. 4 of the Bombay\t Revenue  Jurisdiction\tAct,
\n1876.\tThe  section,  so  far as it  is  relevant  for\t our
\npurpose, says:-\n<\/p>\n
” S. 4.-Subject to the exceptions hereinafter appearing,  no
\nCivil  Court  shall exercise jurisdiction as to any  of\t the
\nfollowing matters:\n<\/p>\n
(a)claims  against the Government relating to  any  property
\nappertaining  to  the  office  of  any\thereditary   officer
\nappointed or recognised under Bombay Act no.  III of 1874 or
\nany  other law for the time being in force, or of any  other
\nvillage-officer or servant, or
\n803<\/span>
\nclaims to perform the duties of any such officer or servant,
\nor in respect of any injury caused by,, exclusion from\tsuch
\noffice or service, or
\nsuits to set aside or avoid any order under the same Act  or
\nany  other  law relating to the same subject  for  the\ttime
\nbeing in force passed by the State Government or any officer
\nduly authorized in that behalf, or
\nclaims\tagainst the Government relating to lands held  under
\ntreaty, or to lands granted or held as Saranjam, or on other
\npolitical  tenure,  or to lands declared by  the  Provincial
\nGovernment or any officer duly authorized in that behalf  to
\nbe held for service”.\n<\/p>\n
In  Mallappa  alias Annasaheb Basvantrao Desai\tNadgouda  v.
\nTukko Narshimha Mutalik Desai and Others (1) it was  pointed
\nout that in the section a distinction has been made  between
\nclaims\tand suits.  The subclause we are concerned  with  is
\nthe  fourth sub-clause which relates inter alia to ”  claims
\nagainst the Government relating to lands granted or held  as
\nSaranjam “. The High Court has taken the view that no  claim
\nwas  made  against Government in the present case.   We\t are
\nunable to agree.  In express terms, the plaintiff respondent
\nasked  for  a finding that the Government  Resolution  dated
\nDecember 17, 1941, was null and void and did not affect\t the
\nproperties  in\tsuit because the Government  had  either  no
\nauthority to make such an order or no occasion to do so.  He
\nasked  for  possession of those properties in spite  of\t the
\norders\tof Government.\tIn these circumstances we must\thold
\nthat  Government was more than a purely formal party, and  a
\nclaim was made against it in respect of the orders contained
\nin  its\t Resolution  dated December 17,\t 1941.\t Unless\t the
\nResolution  is out of his way, the  plaintiff-respondent  is
\nnot  entitled  to  claim recovery  of  possession  from\t the
\nappellant  with mesne profits, etc.  The Civil Court has  no
\njurisdiction  to determine any claim against the  Government
\nin the matter of the Resolution of December 17, 1941, relat-
\ning to Saranjam lands, and the suit was barred under
\ns.   4 of the Bombay Revenue Jurisdiction Act, 1876.
\n(1) I.L.R. [1937] Bom. 464.\n<\/p>\n
804<\/span><\/p>\n
We accordingly allow this appeal, set aside the judgment and
\ndecree\tof  the\t High Court dated  November  12,  1952,\t and
\nrestore\t that  of the learned Civil Judge  dated  April\t 20,
\n1949.\t The  appellant\t will  be  entitled  to\t his   costs
\nthroughout from the plaintiff-respondent.\n<\/p>\n
\t\t\t\t     Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shrimant Dattaji Raobahirojirao … vs Shrimant Vijayasinhrao And … on 29 April, 1960 Equivalent citations: 1960 AIR 1272 Author: S Das Bench: Das, S.K. PETITIONER: SHRIMANT DATTAJI RAOBAHIROJIRAO GHORPADE Vs. RESPONDENT: SHRIMANT VIJAYASINHRAO AND ANOTHER. DATE OF JUDGMENT: 29\/04\/1960 BENCH: DAS, S.K. BENCH: DAS, S.K. SARKAR, A.K. HIDAYATULLAH, M. CITATION: 1960 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-132526","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShrimant Dattaji Raobahirojirao ... vs Shrimant Vijayasinhrao And ... on 29 April, 1960 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shrimant-dattaji-raobahirojirao-vs-shrimant-vijayasinhrao-and-on-29-april-1960\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shrimant Dattaji Raobahirojirao ... vs Shrimant Vijayasinhrao And ... on 29 April, 1960 - 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