# Mohan Lal Jain v. His Highness Maharaja Shri Sawai Man

- **Citation:** [1964] 7 S.C.R. 55
- **Court:** Supreme Court of India
- **Decided:** 1964-03-06
- **Case number:** Writ Petition No. 87 of 1962
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohan-lal-jain-v-his-highness-maharaja-shri-sawai-man-3166
- **Pages:** 7

## Headnote

7 S.C.R.
SUPRE:IIE COURT REPORTS
55
NAROTIAM KISHORE DEV VARMA AND ORS.
. v.
UNION OF INDIA AND ANOTHER
IP. B. GAJi:NDRAGADKAR, c. J., K. N. WANCHOO, J. c. SHAH,
N. RAJAGOPALA AY\'ANGAR AND s. M. SIKRI, JJ.I
Suit against Former Ruler-Requirement of consent of Central Gov'ernment-Constitutional validity-£:ode of Civil Pro·
cedure, 1908 (Act 5 of 1908), ss. 87B, 86-Constitution of India,
Arts. 14. 19(1)(f).
The petitioners applied for the consent of the Central
Government under ·3. 87B of the Code of Civil Procedure to
sue the Maharaja of Tripura, Ruler of a former Indian State,
which has merged with India. They wanted to implead the
Union of India as \\'ell, as party to the suit as their case '\Vas
that they were entitled, as members of a joint Hindu family to
receive either from the said Ruler or from the Union appropriate maintenance allowance under the custom of the Ruling
family. Consent having been refused, they applied to this Court
under Art. 32 of the Constitution. Their case was that s. 87B
of the Code in granting exemption to Rulern of former Indian
Sta.tes from being sued except with the consent of the Central
Government contravened Arts. 14 and 19(1)(f) of the Constitution.
Held, that in view of the previous decision of this Court
s. 87B of the Code of Civil Procedure was no longer open to
challenge under Art. 14 of the Constitution.
Mohan Lal Jain v. His Highness Maharaja Shri Sawai Man
Singhji (1962] 1 •S.C.R. 702, referred to.
Regard being had to the legislative and historical background of s. 87B of the COde, it could not be said that, that
section in giv.ing special treatment to ex-Rulers had imposed
a~ unreasonable restriction on th~ petitioner's fundamental
rights. !Vlotivated as iit was by the sole object of bringing the
entire country including the former Indian States under one
Central Government, it must be held to be reasonable and in
the mterest of the general public.
But con~idered in the light of the basic principle of equality
before law It would be odd to allow the section to continue
prospectively for al! time to come. It would therefore. be for
the Central Government to consider whether it should not be
confined to dealings and transactions previous to January 26
19fil
,
Nor should the section be used to stifle claims except such
as are ~!early far-fetched or frivolous and consent should ordinarily If i::ot as ma.~ter of course, be granted in the case of a
genume dispute which prima facie appears to be triable by a
court of law such as the present one.
1964
.Marrh 6
56
SUPREME COURT REPORTS
[1964]
1964
ORIGINAL JuRISDJCTION:Writ Petition No. 87 of 1962.
N arottamkiskore
Deo Verma and
Others
Petition under Art. 32 of the Constitution of India for the
enforcement of Fundamental Rights.
\'.
Union of India. and
An-0tiler
N. S. Bindra and R. H. Dhebar, for respondent No. 1.
S. S. Shukla, for the petitioner.
Gajendragadkar, O.J.
M. C. Setalvad and D. N. Mukherjee, for respondent
No. 2.
March 6, 1964. The Judgment of the Court was delivered
by
GAJENDRAGADKAR C. J.-This is a writ petition filed
under Art. 32 of the Constitution by which the eight petitioners
challenged the validity· of section 87B of the Code of Civil
Procedure. These petitioners claim that they and respondent
No. 2, His Highness Maharaja Kirit Vikram Kishore Deb
Yarman, are members O'f a joint Hindu family governed by the
Dayabhaga School of Hindu Law. Under a family custom
which, it is alleged, has prevailed in this family for centuries,
the Raj as well as the Zamindari properties belonging to the
family are held by a single individual and the other members
of the family are entitled to maintenance according to the
status of the family with the right to succession to the Raj
as well as the Zamindari properties under the general rule of
·succession which prevails and which is not inconsistent with
the family custom. The head of the family was, by family custom, called the Chief and he was chosen from among the
members of the Ruling Deb B

## Text

7 S.C.R.
SUPRE:IIE COURT REPORTS
55
NAROTIAM KISHORE DEV VARMA AND ORS.
. v.
UNION OF INDIA AND ANOTHER
IP. B. GAJi:NDRAGADKAR, c. J., K. N. WANCHOO, J. c. SHAH,
N. RAJAGOPALA AY\'ANGAR AND s. M. SIKRI, JJ.I
Suit against Former Ruler-Requirement of consent of Central Gov'ernment-Constitutional validity-£:ode of Civil Pro·
cedure, 1908 (Act 5 of 1908), ss. 87B, 86-Constitution of India,
Arts. 14. 19(1)(f).
The petitioners applied for the consent of the Central
Government under ·3. 87B of the Code of Civil Procedure to
sue the Maharaja of Tripura, Ruler of a former Indian State,
which has merged with India. They wanted to implead the
Union of India as \\'ell, as party to the suit as their case '\Vas
that they were entitled, as members of a joint Hindu family to
receive either from the said Ruler or from the Union appropriate maintenance allowance under the custom of the Ruling
family. Consent having been refused, they applied to this Court
under Art. 32 of the Constitution. Their case was that s. 87B
of the Code in granting exemption to Rulern of former Indian
Sta.tes from being sued except with the consent of the Central
Government contravened Arts. 14 and 19(1)(f) of the Constitution.
Held, that in view of the previous decision of this Court
s. 87B of the Code of Civil Procedure was no longer open to
challenge under Art. 14 of the Constitution.
Mohan Lal Jain v. His Highness Maharaja Shri Sawai Man
Singhji (1962] 1 •S.C.R. 702, referred to.
Regard being had to the legislative and historical background of s. 87B of the COde, it could not be said that, that
section in giv.ing special treatment to ex-Rulers had imposed
a~ unreasonable restriction on th~ petitioner's fundamental
rights. !Vlotivated as iit was by the sole object of bringing the
entire country including the former Indian States under one
Central Government, it must be held to be reasonable and in
the mterest of the general public.
But con~idered in the light of the basic principle of equality
before law It would be odd to allow the section to continue
prospectively for al! time to come. It would therefore. be for
the Central Government to consider whether it should not be
confined to dealings and transactions previous to January 26
19fil
,
Nor should the section be used to stifle claims except such
as are ~!early far-fetched or frivolous and consent should ordinarily If i::ot as ma.~ter of course, be granted in the case of a
genume dispute which prima facie appears to be triable by a
court of law such as the present one.
1964
.Marrh 6
56
SUPREME COURT REPORTS
[1964]
1964
ORIGINAL JuRISDJCTION:Writ Petition No. 87 of 1962.
N arottamkiskore
Deo Verma and
Others
Petition under Art. 32 of the Constitution of India for the
enforcement of Fundamental Rights.
\'.
Union of India. and
An-0tiler
N. S. Bindra and R. H. Dhebar, for respondent No. 1.
S. S. Shukla, for the petitioner.
Gajendragadkar, O.J.
M. C. Setalvad and D. N. Mukherjee, for respondent
No. 2.
March 6, 1964. The Judgment of the Court was delivered
by
GAJENDRAGADKAR C. J.-This is a writ petition filed
under Art. 32 of the Constitution by which the eight petitioners
challenged the validity· of section 87B of the Code of Civil
Procedure. These petitioners claim that they and respondent
No. 2, His Highness Maharaja Kirit Vikram Kishore Deb
Yarman, are members O'f a joint Hindu family governed by the
Dayabhaga School of Hindu Law. Under a family custom
which, it is alleged, has prevailed in this family for centuries,
the Raj as well as the Zamindari properties belonging to the
family are held by a single individual and the other members
of the family are entitled to maintenance according to the
status of the family with the right to succession to the Raj
as well as the Zamindari properties under the general rule of
·succession which prevails and which is not inconsistent with
the family custom. The head of the family was, by family custom, called the Chief and he was chosen from among the
members of the Ruling Deb Barman family and used to be
installed on !he Gaddi or Throne. The petitioners further alleged that llje Ruler when so chosen and installed hdd the
State and Zarnindari as life tenant subject to the usual charges
for maintenance of the members of the Ruling Family.
In course of time. the maintenance allowance of the
members of the Ruling family came to be fixed arbitra'rily by
the Rulers without any regard to their status and their legitimate needs, and that led to discontent among them which resulted in a serious agitation raised by them during the lifetime
of the late Maharaja Bir Bikram. In consequence, at the time
of Regency of Her Highness Rajmata during the minority of
the last Ruler Maharaja Kirit Bikram, a Committee was appointed on the 20th June, 1949, to consider the question of
allowances payable to the members of the Ruling family.
However, before the Committee could submit its report, the
State of Tripura merged with and became part of India and
was constituted into a separate Province under the Chief Commissioner.
After merger, the then Chief Commissioner Mr. Hazra
submitted a proposal to the Ministry of States on the 12th
April, 1951, recommending a revision of allowance paid to the
-
7 S.C.R.
SUPRE:VIE COURT REPORTS
57
maintenance-holders. The Ministry of States did not accept
1964
this proposal and refused to make any increase in the total
Narouamkisluwe
expenditure on the allowances to the maintenance-holders.
Dev Verma and
This order was passed on the 23rd May, 1951. Later, the then
Other•
officiating Chief Commissioner Mai·. Chatterjee stopped the u . / 1' ,.
_,
.
nion oJ
nu.1a a·nu.
maintenance allowances paid to some of the mamtenanceAnother
holders without justification and that led to the appointment
.
of another Committee to go into the matter, but the Cornmit-Ga3endragadkar,O.J.
tee could never function ~ith the result that the condition of
the majority of the maintenance-holders grew wor.se day by
dav. That is why the present eight petitioners destre to file a
suft against respondent No. 2 for appropriate reliefs. They
want to implead the Union of India also to that suit, because
it is their case that either the R u!er or the Union of India is
responsible to pay them appropriate and adequate maintenance allowance.
Before filing a suit in a competent court of law against
respondent No. 2, the petitioners are required to obtain the
sanction of the Union Government under s. 87B C.P.C., as
respondent No. 2 is a Ruler of a former Indian State within
the meaning of the said section. A request made by the petitioners for such sanction was rejected by the Central Government. That is how the present petition has been filed challenging the validity of the said section. The petitioners contend
that the said section is ultra vires, because it contravenes Arts.
14 and 19(1 )(f) of the Constitution and as such, the condition
precedent prescribed by it which requires the previous sanction of the Central Government before filing a suit against the
Ruier of an Indian State therein mentioned, is invalid and inoperative. That is the genesis of the present writ petition.
At the hearing of this writ petition, Mr. Shukla for the
petitioners fairly conceded that the challenge to the validity of
s. 87B, C.P.C., on the ground that it contravenes Art. J 4 has
been repelled by a recent decision of this Court in Mohan
Lal Jain v. His Highness Maharaja Shri Sawai Man Singhji(').
He, however, attempted to argue that some aspects of the
problem had not been pressed before the Court when it decided the case of Mohan Lal Jain ('). and so, he wanted
us to reconsider that question. We have not allowed Mr.
Shukla to raise this contention, because we are satisfied that
the decision in Mohan Lal Jain's case concludes the point
and _it would not be reasonable to reconsider it as suggested
by him. We ought to add that we are dealing with Mr. Shukla's
argument that s. 87B. C.P.C., is invalid because it contravenes
Art. 19(1)(fl, on the basis that the case of Mohan Lal Jain(')
has correctly repelled the challenge against the said s~ction
under Art. 14.
·
(') [1962] 1 S.C.R. 702.
58
SUPREME COURT REPORTS
[1964]
1964
That leaves the challenge under Art. 19(1)(f) to be consiNaro1tamki<Twre dered. In dealing with this point, it will be necessary to examine
Dev Verma and the background, both historical and legislative, of s. 87B. SecOtlter•
tion 87B(l) provides that the provisions of s. 85 and of sub-ss.
Union of ~ndia and (I) and (3) of s. 86 shall apply in relation to the Rulers of any
Another
former Indian 'State as they apply in relation to the Ruler of a
0 . d
adk
0 J foreign State. Section 87B(2) defines a 'former Indian State'
•Jen rag
ar, · ·and a "Ruler". It is not'necessary to refer to these provisions,
because it is common ground that respondent No. 2 is a Ruler
of a former Indian State within the meaning of s. 878(2).
In appreciating the effect of s. 87B(l), it is necessary to
consider s. 86. Section 86 deals with suits
against foreign
Rulers, Ambassadcrs and Envoys. Section 86(1) provides that
no Ruler of a foreign State may be sued in any court otherwise competent to try the suit, except with the consent of the
Central Government certified in writing by a Secretary to
that Government to that effect. The proviso excepts frcm the
application of s. 86(1) cases where tenants of immovable property seek to sue such a Ruler. Section 86(2) lays down that the
consent prescribed bys. 86(1) may be given either with respect
to specified suits or to several specified suits, or with respect to
all suits of any specified class or classes .. and it requires that
the sanction should specify in the case of any suit or class of
suits the court in which the Ruler may be used. It then adds
that such consent shall not be given unless it appears to the
Central Government that the Ruler satisfies one or the other
of the four conditions prescribed by clauses (a) to (d). Section
86(3) prohibits the arrest of any Ruler of a foreign state under
the Code and provides that except with the consent of the
Central Government certified in writing by a Secretary to
that Government, no decree shall be
executed against the
property of any such Ruler. Section 86(4) extends the application of s. 86 to the persons specified in clauses (a) to (c) of
th~t sub-section. The result of the extension of s. 86(1) and
(3) to the cases falling under s. 87B(J) is that the sanction of
the Central Government is a condition precedent to the institution of a suit against the Ruler of any former Indian State.
It is this requirement which the petitioners have not been able
to comply with in respect of the suit which they intend to file
against respondent No. 2, because the Central Government
Jias refused to accord sanction to the said intended suit.
Now, the legislative background of the provisions contained ins. 86 and s. 87B is well known. Prior to the present
Constitution, Part IV of the Code of Civil Procedure contained
provisions in respect of suits in specified cases. These cases
were divided into three parts. Section 79 to 82 covered cases
of suits by or against the Crown or Public Oflicers in their
official capacity. Sections 83 to 87 dealt with suits by aliens and
by or against foreign Rulers and Rulers of Indian States; and
•
1
,
'1 S.C.R.
SUPREME COURT REPORTS
59
s. 88 had reference to interpleader suits. After the Constitution
196'
crune into force, the President made certain adaptations by
the Adaptations of Laws Order, 1950. As a result of Art. 372,
~~;
01~=:!%:
the protection afforded to Foreign Rulers and Rulers of Indian
Other•
States continued, and that is how s. 87B came to be enacted in
v.
the statute-book. It is in the light of this legislative background Union of India and
that the plea raised by the petitioners in the present proceedAnother
ings has to be examined.
GajendragadkM. O.J.
The legislative background to which we have referred
cannot be divorced from the historical background which is
to be found for instance, in Art. 362. This Article provides
that in the exercise of the power of Parliament or of any
legislature of any State to make laws or in the exercise of the
executive power of the Union or of a State, due regard shall
be had to the guarantee or assurance given under any such
covenant or agreement as is referred to in clause (!) of Art.
291 with respect to the personal rights, privileges and dignities of a Ruler of an Indian State. This has reference to the
covenants and agreements which had been entered into between the Central Government and the Indian Princes, before
all the Indian States were politically completely assimilated
with the rest of India. The privilege conferred on the Rulers
of former Indian States has its origin in these agreements and
wvenants. One of the privileges is that of extra territoriality •
and exemption from civil.jurisdiction except with the sanction
of the Central Government. It was thought that the privilege
which was claimed by foreign Rulers and Rulers of Indian
States prior to the independence of the country should be
continued even after independence was attained and the States
had become part of India, and that is how in 1951. the Civil
Procedure Code was amended and the present sections 86,
87, 87A and 87B came to be enacted in the present form.
Considered in the light of this background, it is difficult
to see how the petitioners can successfully
challenge
the
validity of the provisions contained in s. 87B. In the "case of
Mohan Lal Jain(') this Court has held that the ex-Rulers of
Indian States form a class by themselves and the special
treatment given to them by the impugned provisions cannot
be said to be based on unconstitutional discrimination. There
is, of course, discrimination between the ex-Rulers and the rest
of the citizens of India, but that discrimination is justified
having regard to the historical and legislative background to
which we have just referred. If that be so, it would follow that
the restriction imposed on the petitioners' fundamental right
guaranteed by Art. 19(l)(f) cannot be said to be unreasonable.
The restriction in question is the result of the necessity to treat
the agreements entered into between the Central Government
and the ex-Rulers of Indian States as valid and the desirability
of giving effect to the assurances given to them during the
(') [1962] 1 S.C.R. 702.
60
SUPREME COURT REPORTS
[1964]
1984
course of negotiations between the Indian Z.tates and the
NaroUamki8h<>re Central Government prior to the merger of the States with
Dev Verma and India. We have to take into account the events which occurred
Othm
with unprecedented swiftness after the 15th August, 1947, and
Union of "jndia and we have to bear in mind the fact that the relevant negotiations
Another
carried on by the Central Government were inspired by the
. nd -·
sole object of . bringing pilder one Central Government the
Gaje
r<VJ<ldkar, c .. J. whole of this country including the former Indian States. Considered in the context of these events, we do not think it would
be possible to hold that the specific provision made by s. 87B
granting exemption to the Rulers of former Indian States from
being sued except with the sanction of the Central Government, is not reasonable and is not in the interests of the general
public. It is irue that the restriction works a hardship so far
as the petitioners are concerned; but balancing the said hardship against the other considerations to which we have just
referred, it would be difficult to sustain the agrument that the
section itself should be treated as unconstitutional.
I
Before we part with this matter. however, we would like
to invite the Centra! Government to consider seriously whether
it is necessary to allow s. 87B to operate prospectively for all
time. The agreements made with the Rulers of Indian States
may, no doubt, have to be accepted and the assurances given
to them may have to be observed. But considered broadly in
th<- light of the basic principle of the equality before law, it
seems somewhat odd that s. 87B should continue to operate
for all time. For past dealings and transactions, protection may
justifiably be given to Rulers of former Indian States; but the
Central Government may examine the question as to whether
for transactions subsequent to the 26th of January 1950, this
protection need or should be continued. If under the Constitution all citizens are equal. it may be desirable to confine the
operation of s. 87B to past transactions and not to perpetuate
the anomaly of the distinction between the rest of the citizens
and Rulers of former Indian States. With the passage of time.
the validity of historical considerations on which s. 87B is
founded will wear out and the continuance of the said section
in the Code of Civil Procedure may later be open to serious
challenge.
There is also another aspect of the matter to which we
must refer in this ccnnection. In considering the question as
to whether sanction should be granted to a person who intends
to sue a Ruler of a former Indian State, it is advisable that the
authority concerned should ordinarily, if not as a matter of
course, allow such sanction, because in the present set-up it
does not appear very satisfactory that an intended action against
the Ruler of a former Indian State should be stifled by
refusing to grant the litigant sanction under s. 87B. Where
frivolous claims are set up by intending litigants, refusal to
7 S.C.R.
SUPREME COURT REPORTS
61
give sanction may be justified; but where genuine disputes arise
1964
between a citizen and a Ruler of a former Indian State and
Naroflamkialwre
these disputes, prima facie, appear to be triable in a court of
D-. foma ant
law, it would not be fair or just that the said citizen should
Othe"
be prevented frcrn inviting a court of competent jurisdiction Union ofindia and
to deal with his dispute. If the power to grant sanction is exerAnother
cised in a sensible way ai:id is not used for stifling claims which Gajendragadkar, o.J.
are not far-fetched or fnvolous, that may prevent the growth
of discontent in the minds of litigants against the artificial
provision prescribed by s. 87B. In the present proceedings, it
does appear, prima facie, that the petitioners have a genuine
grievance against the Central Government's refusal to accord
sanction to them to get a judicial decision on the dispute between them and respondent No. 2. That, naturally is a matter
for the Central Government to consider. However, since it is
not possible to accede to the petitioner's argument that s. 87B
is invalid, we see no alternative but to dismiss the writ petition.
In the circumstances, there would be no order as to costs.
Petition dismissed .
. ,