# RAJKUMAR NARSINGH PRATAP SINGH DEO v. STATE OF ORISSA AND ANR

- **Citation:** [1964] 7 S.C.R. 112
- **Court:** Supreme Court of India
- **Decided:** 1964-03-09
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, J. c. SHAH, N. Rajagopala Ayyangar Ands. M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajkumar-narsingh-pratap-singh-deo-v-state-of-orissa-and-anr-3239
- **Pages:** 11

## Headnote

Khorposh Allowance-Sanad granted by Ruler of StateDiscontinuance of cash allowance by Government of Orissa after
merger-Validitv-Sanad, if law or executive act-Constitution
of India), Arts. 366(10), 372--0rder 31 of 1948 issued by Government of Orissa, cl. 4{b ).
The Ruler of Dhenkanal State granted a sanad by way. of
Khorposh allowance to his younger brother, the appellant giving
certain lands and a maintenance allowance, under the customary
law of the State. After the merger of that State to the Dominion
of India which became effective on January 1, 1948, the Government of Orissa took over the administration of the State and
discontinued the cash allowance. The appellant challenged the
validity of the order of discontinuance by a suit in the Court of
Subordinate Judge. The suit was dismissed. On appeal to this
Court it was urged on behalf of the appellant that the sanad
issued by an absolute monarch was law, and was continued by
Arts. 366(10), 372(1) of the Constitution and cl. 4(b) of the Order
31 of 1948 issued by the Orissa Government in exercise of the
power delegated to it by the Central Government under s. 3(2)
of the Extra Foreign Jurisdiction Act, 1947.
Held: (i) It was not correct to say that in dealing with a
grant m,ade by an absolute monarch any enquiry as to whether
the grant was the result of an executive or legislative act was
altogether irrelevant. This Court did not lay down any inflexible rule that the weli"I1eCClgnised jurisprudential distinction
between legislative and executive acts was wholly irrelevant
or inapplicable to such a case.
Ameer-un Nissa Begum v. Mahboob Begum, A.I.R. 1955 S.C.
352, Director of Endowments, Government of Hyderabad .v.
Akram Ali, A.I.R. 1956 S.C. 60, Madhaorao Phalke v. State of
Madhya Bharat, [1961] 1 S.C.R. 957, Promode Chandra Deb v.
State of Orissa, [1962] Supp_ 1 S.C.R. 405, Tilkauat Shri Govindlalii Maharaj v. State of Rajasthan, [1964] 1 S.c:R. 561, Maharaja
Shree Umaid Mills Ltd. v. Union of India, AI.R. 1963 S.C. 953
and State of Gujarat v. Vora Fiddali Badruddin Nithibarwala.
[1964] 6 S.C.R 461, considered.
In such an enquiry it was necessary to consider such relevant factors as the nature of the order, its scope and effect,
general setting and context and tire method adopted by the
Ruler in promulgating it.
So judged, the Sanad in question had no legislative element
in any of its provisions and· was a gift pure and simple made in
pursuanoe of the custom of the family and customai;r law of the
State.
·
The gift therefore, was an executive act of the Ruler and
did not amount to law although the Ruler was discharging ~
it his obligation under personal or customary law.
..
7 S.C.R.
SUPREME COURT REPORTS
113
The gift being an executive act of the Ruler could be modifi1961
ed or cancelled by an executive act of the successor to the Ruler. R .k
--;;-
. 1
Th d.
t'
f t"
h
11
ld
t
ff t th
aJ ·umar .. arsmg'
e
iscon inuance o
ue cas
a o'\\o·ance cou
no a ec
e Pratap Singh Deo
continuance of the customary law under cl. 4(b) of the Order of
v.
1948 and Art. 372 of the Constitution. Nor could the plea of pay-State of or;"" and
ment of such allowance even after the merger invalidate the
Another
discontinuance.

## Text

1964
MarcA 11
112
SUPREME COURT REPORTS
[1964]
RAJKUMAR NARSINGH PRATAP SINGH DEO
v.
STATE OF ORISSA AND ANR.
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J. c. SHAH,
N. RAJAGOPALA AYYANGAR ANDS. M. SIKRI, JJ.)
Khorposh Allowance-Sanad granted by Ruler of StateDiscontinuance of cash allowance by Government of Orissa after
merger-Validitv-Sanad, if law or executive act-Constitution
of India), Arts. 366(10), 372--0rder 31 of 1948 issued by Government of Orissa, cl. 4{b ).
The Ruler of Dhenkanal State granted a sanad by way. of
Khorposh allowance to his younger brother, the appellant giving
certain lands and a maintenance allowance, under the customary
law of the State. After the merger of that State to the Dominion
of India which became effective on January 1, 1948, the Government of Orissa took over the administration of the State and
discontinued the cash allowance. The appellant challenged the
validity of the order of discontinuance by a suit in the Court of
Subordinate Judge. The suit was dismissed. On appeal to this
Court it was urged on behalf of the appellant that the sanad
issued by an absolute monarch was law, and was continued by
Arts. 366(10), 372(1) of the Constitution and cl. 4(b) of the Order
31 of 1948 issued by the Orissa Government in exercise of the
power delegated to it by the Central Government under s. 3(2)
of the Extra Foreign Jurisdiction Act, 1947.
Held: (i) It was not correct to say that in dealing with a
grant m,ade by an absolute monarch any enquiry as to whether
the grant was the result of an executive or legislative act was
altogether irrelevant. This Court did not lay down any inflexible rule that the weli"I1eCClgnised jurisprudential distinction
between legislative and executive acts was wholly irrelevant
or inapplicable to such a case.
Ameer-un Nissa Begum v. Mahboob Begum, A.I.R. 1955 S.C.
352, Director of Endowments, Government of Hyderabad .v.
Akram Ali, A.I.R. 1956 S.C. 60, Madhaorao Phalke v. State of
Madhya Bharat, [1961] 1 S.C.R. 957, Promode Chandra Deb v.
State of Orissa, [1962] Supp_ 1 S.C.R. 405, Tilkauat Shri Govindlalii Maharaj v. State of Rajasthan, [1964] 1 S.c:R. 561, Maharaja
Shree Umaid Mills Ltd. v. Union of India, AI.R. 1963 S.C. 953
and State of Gujarat v. Vora Fiddali Badruddin Nithibarwala.
[1964] 6 S.C.R 461, considered.
In such an enquiry it was necessary to consider such relevant factors as the nature of the order, its scope and effect,
general setting and context and tire method adopted by the
Ruler in promulgating it.
So judged, the Sanad in question had no legislative element
in any of its provisions and· was a gift pure and simple made in
pursuanoe of the custom of the family and customai;r law of the
State.
·
The gift therefore, was an executive act of the Ruler and
did not amount to law although the Ruler was discharging ~
it his obligation under personal or customary law.
..
7 S.C.R.
SUPREME COURT REPORTS
113
The gift being an executive act of the Ruler could be modifi1961
ed or cancelled by an executive act of the successor to the Ruler. R .k
--;;-
. 1
Th d.
t'
f t"
h
11
ld
t
ff t th
aJ ·umar .. arsmg'
e
iscon inuance o
ue cas
a o'\\o·ance cou
no a ec
e Pratap Singh Deo
continuance of the customary law under cl. 4(b) of the Order of
v.
1948 and Art. 372 of the Constitution. Nor could the plea of pay-State of or;"" and
ment of such allowance even after the merger invalidate the
Another
discontinuance.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 133/
1963. Appeal from the judgment and decree dated November 17, 1960, of the Orissa High Court in First Appeal
No. 45 of 1955.
M. C. Setalvad, R. K. Garg, M. K. Ra111a11111rthi, D. P.
Singh and S. C. Agarwala, for the appellant.
S. V. Gupte, Additional Solicitor-General of lndia, Ganapathy Iyer and R. H. Dhebar, for the respondents.
March 9, 1964. The judgment of the Court was delivered
by
GAJENDRAGADKAR, C.J.-The principal point of iaw Gajendragad!w, C.J;.
which arises in this appeal is whether the Sanad iSsued in
favour of the appellant, Rajkumar Narsingh Pratap Singh Deo,
by his elder brother, the Ruler of Dhenkanal State, on March
1, 1931, is existing law within the meaning of Art. .372 of the
Constitution read with cl. 4(b) of Order No. 31 of 1948 issued
by the respondent State of Orissa on January 1, 1948. This
question arises in this way. The State of Dhenkanal which was
an independent State prior to 1947 merged with the Province
of Orissa in pursuance of a Merger Agreement entered into
between the Ruler of Dhenkanal and the Dominion of India
on December 15. 1947. This Agreement came into force as
from January 1, 1948. In consequence of this Agreement the
entire administration' of the State of Dhenkanal was taken over
by the State of Orissa pursuant to the authority confe~red on
it by the Central Government under s. 3 (2) of the Extra
Foreign Jurisdiction Act, 1947 (No. 47 of 1947). After the
Sanad in question was issued in favour of the appellant, he
was getting a monthly allowance of Rs. 500 /- from the Dhenkanal District Treasury on the authority of a permanent Pay
Order which had been issued in his favour by the Ruler of
Dhenkanal on the basis of the said Sanad. This payment was
discontinued by the respondent from !st of May, 1949 and the
several representations made by the appellant to the various
authorities of the respondent to reconsider the matter failed.
That is why he filed the present suit on September 26, 1951 in
the Court of the subordinate Judge, Dhenkanal, alleging that
the .act of discontin.uing t~e a~pellant's pension was illegal, and
askmg for appropnate rehefs m that behalf. It is from this suit
that the present appeal arises.
114
SUPREME COURT REPORTS
[19M]
1964
The appellant's case is that in the family of the appellant,
Rajkumar Naraingh it has been recogni~ed as a ~ustomary right .of the junior
Pratap Singh Deo
members of the family to receive adeqnate maintenance cons
10v·.
d sistently with the status of the family. Indeed, the appellant's
'"''
0 A:,;;;:, an
allegation is that this custom was recognised in Dhenkanal and
.
-
enforced as customary law in the State. The grants made to
GaJendraaadkar, C.J. the members of the Royal Family for their maintenance consisted of lands and cash allowances. These latter were described as Kharposh allowances and they were charged and paid
out of the revenue of the former State of Dhenkanal. It was in
accordance with this customary law that the Sanad in question
was issued by the Ruler of Dhenkanal in favou~ of the appellant. By this Sanad, certain lands were granted to the appellant
and a cash allowance of Rs. 500 /- per month was directed to
be paid to him for life. The appellant's grieva.nce is that this
grant of Rs. 500/- allowance has been discontinued by the
respondent and that, according to the appellant, is an illegal
and unconstitutional act. In support of his plea that the respondent was bound to continue the payment of the cash allowance, the appellant urged in his suit that the grant was a law
within the meaning of Art. 372 and as such, it had to be continued. He also alleged that after the merger of Dhenkanal with
Orissa, his right to receive the grant was recognised by the
respondent and acted upon; and that is another reason why he
claimed an appropriate relief in the form of an injunction
against the respondent. Several other pleas were also taken by
the appella.nt in support of his claim, but it is not necessary to
refer to them for the purpose of the present appeal.
The respondent denied the appellant's claim and urged
that having regard to the nature of the grant on which the
appellant has rested his case, it was competent to the respondent to discontinue the grant. The grant in question is not law
under Art. 372 and just as it could be made by the Ruler in
1931 by an executive act. it can be discontinued by the respondent by a similar executive act since the respondent is the
successor of the Ruler. It was also urged by the respondent
that the appellant's allegation that the respondent had recognised and agreed to act upon the grant of cash allowance, was
not well-founded. Both the learned trial Judge who tried the
appellant's case, and the High Court of Orissa before which
the appellant took his case in appeal, have, in the main, rejected the appellant's contention, with the result that the appellant's suit has been dismissed. The appellant then applied for
and obtained a certificate from the High Court and it is with
the certificate thus granted to him that he has come to this
Court in appeal.
The first. and the main point which Mt. Setalvad for the
appellant has urged before us is that the Sanad on which the
appellant's claim is founded, is la.w. At t!ie time when the
-
7 S.C.R.
SUPREME COURT REPORTS
ll5
Sanad was granted, the Ruler of Dhenkanal was an absolute
1964
monarch and in him vested full sovereignty; as such absolute Rajkumar N arsingh
sovereign, he was endowed with legislative, judicial and exe- Pratap Singh Dea
cutive powers and authority and whatever order he passed
v.
d
1
I
h
f
b 1
h
h
Stateo/Orissaand
amounte to aw. n t e case o an a so ute monarc w ose
AnotMr
word is literally law, it would be idle, says Mr. Setalvad, to
--
distinguish between binding orders issued by him which are Gajendragadkar,C.J.
legislative from other binding orders which are executive or
administrative. All binding orders issued by such a Ruler are,
on the ultimate analysis, law, and the Sanad in question falls
·under the category of such law.
In support of this argument, Mr. Setalvad has referred us
to the definition of the words "existing law" prescribed by Art.
366(10) of the Constitution. Art. 366(10) provides that "existing law" means any law, ordinance, order, bye-law, rule or
regulation passed or made before the commencement of this
Constitution by any Legislature, authority or person having
power to make such a, law, ordinance, order, bye-law, rule or
regulation. Basing himself on this definition, Mr. Setalvad also
relies on the provisions of Art. 372(1) which provides for the
continuance in force of existing laws; this continuance is, of
course, subject to the other provisions· of the Constitution and
it applies to such laws as were in force in the territory of India
immediately before the commencement of the Constitution,
until they are altered, repealed or amended by a, competent
Legislature or other competent authority.
These provisions are invoked by Mr. Setalvad primarily
by virtue of cl. 4(b) of Order 31 of 1948 issued by the respondent on the lst'of January, 1948. It is well-known that by s.3(1)
of the Extra Foreign Jurisdiction Act, the Central Government was given very wide powers to exercise extra provincial
jurisdiction in such manner as it thought fit. Section 3(2) provided that the Central Government may delegate any such
jurisdiction as aforesaid to atiy officer or authority in such
manner and to such extent as it thinks fit. The width of the
powers conferred on the Central Government can be properly
appreciated if the provisions of s. 4 are taken into account.
Under s. 4(1Y: the Central Government was authorised by Jlotification in the Official Gazette to make such orders as may
seem to it expedient for the effective exercise of the extraforeign jurisdiction of the Central Government. Section 4(2)
indicates oy els. (a) to (d) the categbries of orders which can
be passed by the Central Government in exercise of its jurisdiction. The sweep of these powers is very wide and they had to
be exercised in the interests of the proper governance of the
areas to which the said Act applied. Under s. 3(2), the Central
Government had delegated its powers to the Province of Oriss.1
in respect of States which had merged with it, and it was in
exercise of its powers as such· delegated that Order 3 I of 1948
\
116
SUPREME COURT REPORTS
(1964]
1964
was issued by the Province of Orissa (now the respondent).
llajkuma-;N,,,.1ngh Cl. 4 of the Order dealt with the question of the laws to be
Pmtap Singh Deo
applied to the merging areas. Cl. 4(a) referred to the enact0•·.
d ments specified in the first column of the Schedule annexed to
Stale of """'an
d
d h
l"
bl
. d'
d . "t CJ 4(b)
Anoth.r
the Order an ma e t em app 1ca e as m 1cate m 1 .
•
.
-
provided that as respects those matters which are not covered
Oa1endrag.•dkar,C.J. by the ena.ctments applied to" the Orissa States under sub-para
(a), all Jaws in force in any of the Orissa States prior to the
commencement of this Order, whether substantive or procedural and whether based on custom and usage, or statutes,
shall, subject to the provisions of this Order, continue to
remain in force until altered or amended by an Order under
the Extra. Provincial Jurisdiction Act, 1947. There is a proviso
to this sub-clause to which it is unnecessary to refer. The argument is that by virtue of cl. 4(b) of this Order, \h•! customary
law prevailing in the State of Dhenkanal prior to its merger
continued to operate as law in the territory of Dhenkanal and
that is how it is operative even now, beca.use it has not been
repealed or amended. Since the Sanad issued in favour of the
appellant is, according to the appellant's case. law, there would
be no authority in the respondent to cancel the payment of
cash allowance to the appellant merely by an executive order.
If the respondent wants to terminate the payment of the cash
allowance to the appellant, the only way which the respondent
can legitimately adopt is to fllake a Jaw in that behalf, or issue
an order under cl. 4(b) of the Order. That, broadly stated, is
the argument which has been pressed before us by Mr. Setalvad.
We do not think that the basic assumption made by
Mr. Setalvad in presenting this argument is sound. It would be
noticed that the basic assumption on whiCh the argument is
based is that in the case Of an absolute monarch, there can be
no distinction between executive and legislative orders. In
other words, it is assumed that all orders which are passed by
an absolute monarch, are binding, and it is idle to enquire
whether they are executive or legislative in character, because
no ~uch distinction can be made in regard to orders issued by
an absolute monarch. It is true that the legislative. executive
and judicial powers are all vested in an absolute monarch; he
is the source or fountain of all these powers and any order
made by him would be binding within the territory under his
rule without examining the question as to whether it is legislative, executive or judicial; but though all the three powers
are vested in the same individual, that does not obliterate the
difference in the character of those powers. The jurisprudential
distinction between the legislative and the exe<;utive powers
still remains, though for practical purposes, an examination
about the character of these orders may serve no useful purpose. It is not as if where absolute monarchs have sway in
•
•
7 S.C.R.
SUPREME COURT REFORTS
117
their kingdoms, the basic principles of jurisprudenc~ whic~
1964
distinguish between the ~~re~ categories of powers are mapph- Rajkumar Nar<ingh
cable. A careful exammatlon of the orders passed by an Pratap Singh Deo
absolute monarch would disclose to a jurist whether the power
v •.
.
.
.
.
·
·
d
· · d" ·, 1 Slateo/Orisaaand
exercised m a given case by 1ssumg a giyen or er 1s JU ~c1~ ,
Another
legislative or executive, and the conclusion reached on Juns-
-
prudential grounds about the nature of the order and the Gl\iendragadk.,, O.J.
source of power on which it is based would nevertheless be
true and correct. That, indeed, is the approach which must be
adopted in considering the question as to whether the grant
in the present case is law within the meaning of Art. 372 as
well as cl. 4(b) of Order 31 of 1948; and so, prima facie, it does
not seem sound to suggest that in the case of an absolute
monarch, that branch of jurisprudence which makes a distinction between three kinds of power is entirely inapplicable.
In dealing with this aspect of the matter, it is hardly
necessary to examine and decide what distinguishes a la~ from
an executive order. A theoretical or academic discuss10n of
this problem would not be necessary for our present purpose,
because all that we are considering at this stage is whether or
not it would be possible to consider by reference to the
character of the order, its provisions, its context and its general
setting whether it is a legislative order or an executive order.
Though theorists may not find it easy to define a law as distinguished from executive orders, the main features and characteristics of law are well recognised. Stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised
by courts. In that sense, a law can be distinguished from a
grant, because in the case of a grant, the grantor and the
grantee both agree about the making and the acceptance of
the grant; not so in the case of law. Law in the case of an
absolute monarch is his. command which has to be obeyed by
the citizens whether they agree with it or not. Therefore, we
are incline~ to hold th~t Mr. Setalvad is not right in making
the unqualified content10n that while we are dealing with a
grant made by abs?lute monarch, it is irrelevant to enquire
wh~the~ the !!1'1nt 1s the result of an executive action, or a
legJSlative a.ctlon. On Mr. Setalvad's contention, every act of
the absolute monarch and every order passed by him would
~ome la':" though the act or order may have relation excluSJVely to his personal matters and may have no impact on the
pu,~hc at la~ge. ~h~.t i~ why it is unsound to suggest that the
1unsp.rudent1al d1stinchon between orders which are judicial
executive or legislative or in relation to purely individual and
personal matters should be treated as irrelevant in dealing with
Acts or orders passed even by an absolute monarch.
Realisi_ng the d~culty in his way, Mr. Setalvad has
~trongly. relied on certain decisions of this Court which accordm11 to him, support the broad point which he has raised before
118
SUPREME COURT REPORTS
(1964)
1964
us. It is, therefore, necessary to examine these dech:ions. The
Rajk,.mar Narsinqh first case on which Mr. Setalvad relies is that of Ameer-unPratap Singh Deo Nissa Begum v. Mahboob Begum('). In that case, this Court
State of~;;,,,. and was called upon to consider the validity of the Firman issued
Anoth.r
by the Nizam of Hyderabad on the 19th February, 1939, by
0 . nd
odk
0 J which a Special Commission had been constituted to investi-
•J'
rag
•r, · ·gate and submit a report to him in the case of succession to a
deceased Nawab which was transferred to the commission
from the file of Darul Quaza Court. Dealing with the question
as to whether the Firman in question was passed by the Nizam
in exercise of his legislative power or judicial power, Mukherjea, C.J., speaking for the Court, observed· that the Nizam was
the supreme legislature, the supreme judiciary and the supreme
head of the executive and there were no constitutional limitations upon his authority to act in any of these capacities. He
also observed that the Firmans were expressions of the sovereign will of the Nizam and they were binding in th•~ same way
as any other law; therefore so long as a particular firman held
the field, that alone would govern or regulate the rights of the
parties concerned, though it could be annulled or modified by
a later Firman at any time that the Nizam willed. It appears,
however, that the learned counsel appearing in that case did
not argue this point, and so, the question as to whether it would
be possible or useful to draw a line of demarcation between a
Firman which is legislative and that which is exf:cutive, was
neither debated before the Court, nor has it been examined and
decided as a general proposition of law.
In The Director of Endowments, Government of Hyderabad v. Akram Ali('), similar observations were repeated by
Bose, J., who spoke for the Court on that occasion. Dealing
with the Firman issued by the Nizam on the 30th December,
1920, which directed the Department to supervise the Dargah
until the rights of the parties were enquired into and decided
by the Civil Court, it was observed that the Nizam was an
absolute sovereign regarding all domestic matters at the time
when the Firman was issued and his word was law. That is how
the validity of the Firman was not questioned and it was held
that its effect was to deprive' the respondent before the Court
and all other claimants of all rights to possession pending
enquiry of the case.
In this case again, as in the ·case of
Ameer-un-Nissa Begum('), the point does not appear to
have been argued and the observations are, therefore, not
intended to lay down a broad or general proposition as contended by Mr. Setalvad.
That takes us to the decision in the case of Madhaorao
Phalke v. The State of Madhya Bharat('). On this occasion,
this Court was called upon to consider the question as to
(') A.LR. 1955 S.C. 352.
(') A.I.R. 1956 S.C. 60
(') [1961] I S.C.R. 957.
•
7 S.C.R.
SUPREME COURT REPORTS
119
whether the relevant Kalambandis issued by the Ruler of
1964
Gwalior constituted law, 'Or amounted merely to executive Rajkumar NaT<iog~
orders. In the course of the judgment, the passages in the two Pratap Singh Deo
cases to which we ·have just referred were, no doubt, quoted; State of Ori"a and.
but the ultimate decision was based not so much on any gene·
Another
ral ground as suggested by Mr. Setalvad, as on the examina·
. wJ -
tion of the character of the Kalambandis themselves and other GaJe
'O!Jrsdkar, O.J
relevant factors. If Mr. Setalvad's argument be well-founded
and the Kalambandis had to be treated as law on the broad
ground that they were orders issued by an abso_lute monarch,
it would have been hardly necessary to consider the scope and
effect of the Kalambandis, the manner in which they were
passed, and the object and effect of their scheme. In fact, these
matters were considered in the judgment and it was ultimately
held that "having regard to the contents of the two orders and
the character of the provisions made by them in such a detail·
ed manner, it is difficult to distinguish them from statutes or
Jaws; in any event, they must be treated as rules or regulations
having the force of law". That was the finding made by the
High Court ahd the said finding was affirmed by this Court.
Therefore, though this judgment repeated the general observa·
lions made by this Court on two earlier occasions, it would be
noticed that the decision was based not so much on the said
observations, as on a' careful examination of the provisions
contained in the Kalambandis themselves.
In Promod Chandra Deb v. The State of Orissa('), this
Court has held that the grant with which the Court was con·
cerned, read in the light of Order 31 of the Rules, Regulations
and Privileges of Khanjadars and Khorposhdars, was law. Jn
discussing the question, Sinha, C.J., has referred to Order 31
of the Rules and Regulations and has observed that like the
Kalambandis in the case of Phalke('), the said Rules has the
force of law and would be existing law within the meaning of
~rt. 372 of the Constitution. This case does not carry the posi·
t1on any further except that the same general observations are
reproduced.
·
In the case of Tilkayat Shri Govindlalji Maharaj v. Stat•
of Rajasthan('), while dealing with the question as to whether
the Firman issued by the Udaipur Darbar in 1934 was law or
not, this Court examined the scheme of the said Firman
C'Onsidered its provisions, their scope and effect and came t~
the -~onclusion tha~ it was law. Having thus reached the co!\-
clus1on that the Frrman, considered as a whole, was Jaw the
general observ~tions on which Mr. Setalvad relies were r~pro ..
~uced. But as m the case of Phalke('), so in this case, the decis10n. does ,not apix:ar. to be based on any general or a priori
CO~Jderation, but It IS J>ased more particularly Oll the exami·
nation of the scheme of the Firman and its provisions.
((') [1962] Supp. I S.C.R 405, 410.
(') [1961] 1 SC R 957
') [1964) 1 S.C.R 561.
. .
.
120
SUPRE:ME COURT REPORTS
[1964J
1964
In the case of Maharaja Shree Umaid Mills Ltd. v. Union
Rajk,.mar Nars;ng1, of India('), a similar question arose for the decision of this_
Pratap Singh Deo Court in regard to an agreement made on the 17th of April,
State of ~i"a and 1941. The point urged ~efore the Court was that the said agreeAnot~er
ment was law, and rehance was placed on the several general
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observations to which we have alreadv referred. S. K Das. J.
Gajendragadkar, C.J. who spoke for the Court examined the said observations and
the context in which they were made and rejected the plea that
the said observations were intended to lay down a general proposition that in the case of an absolute monarch, no distinction
can be made between his legislative and his executive acts.
In the result, the agreement in question was held to be no
more than a contract which was an executive act and not a
law within the meaning of Art. 372.
The same view has been recently expressed by Hidayatullah, Shah and Ayyangar, JJ. in the judgments respectively
delivered by them in The State of Gujarat v. Vora Fidda/i
Badruddin Mithibarwala(').
Therefore, a close examination of the decisions on which
Mr. Setalvad relies does not support his argument that this
Court has laid down a general proposition about the irrelevance or inapplicability of the well-recognised distinction
between legislative and executive acts in regard to the orders
issued by absolute monarchs like the Raja of Dhenkanal in
the present case. The true legal position is that whenever a
dispute arises as to whether an order passed by an absolute
monarch represents a legislative act and continues to remain
operative by virtue of cl. 4(b) of the Order, all relevant factors
must be considered before the question is answered; the nature
of the order, the scope and effect of its provisions, its general
setting and context, the method adopted by the Ruler in promulgating legislative as distinguished from executive orders,
these and other allied matters will have to be examined before
the character of the order is judicially determined, and so, we
arc satisfied that Mr. Setalvad is not right in placing his argu·
ment as high as to say that the Sanad issued in favour of the
appellant by the Raja of Dhenkanal must be held to be law
without considering the nature of the grant contained in it
and other relevant circumstances and facts. We must, therefore. proceed to examine these relevant facts.
,..._
Let us then examine the Sanad. It consists of three
clauses_ The first clause refers to the practice in the State of
Dhenkanal under which the Rajas made grants in hereditary
rights to their relatives. and it adds that there exists a patent
necessity for making an adequate provision for the .grantee.
<'> A.LR. 1963 s_c. 953.
(') [19&)] 6 S.C.R. 461.
7 S.C.R.
SUPREME COURT REPORTS
121
the appellant, to enable him to maintain his dignity as a Raj1964
knmar of the Stat~ and to maintain ~imsel~. his fam~y. his .~eirs Rajkumar Naraingh
and descendants m a manner befittmg his and therr pos1tton. Pratap Si09h Deo
Th~t is w.hY out o~ love and affection for him, the grantor made BtaJe ~ 0";;.,. ana
the khan1a grant m the shape of a monthly cash allowance of
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Rs. 500 I- for his life time and also an assignment of land
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measuring 6942-71-5 acres specified in the Schedule attached Gaienrlragadkar,C.J.
to the Sanad. The grant of the said land has been made heritable and the grantee has been authorised to enjoy it from
generation to generation. The extent of the grant is also clarified by additional clauses which it is unnecessary to mention.
Clause 2 of the Sanad imposes the condition of loyalty on the
grantee and bis heirs; and by cl. 3 the State undertook to
bear all costs for reclaiming the land covered by the grant with
a view to render it fit for cultivation.
Now, it is plain that there is no legislative element in any
of the provisions of this grant. It does not contain any command which has to be obeyed by the citizens of the State; it is
a gift pure and simple made by the Ruler in recognition of the
fact that under the custom of the family and the customary
law of the State, he was bound to maintain his junior brother.
The grant, therefore, .represents purely an executive act on the
part of the Ruler intended to discharge his obligations to his
junior brother under the personal law of the family and the
customary law of the State. It would, we think be idle to
suggest that such a grant amounts to law. It is true that partly
it is based on the requirement of personal and customary law;
but no a,ction taken by the Ruler in discharging his obligations
under such personal or customary law can be assimilated to
an order issued by him in exercise of his legislative authority.
Therefore, we have no diflj.culty in holding that the Sanad in
question is a purely executive dCt and cannot be regarded as
la.w as contended by Mr. Setalvad.
It was then faintly argued by Mr. Setalvad that the obligation undertaken by the Ruler was recognised by the respondent, and so, it could not lie cancelled by the respondent
merely by an executive act. In our opinion, there is no substance in this argnment. If the act by which the grant was made
was a purely executive act on the part of the then Ruler of the
State of Dhenkanal, we do not see how it can be legitimatelv
urged that the terms of the grant cannot either be modified, or
the grant cannot be cancelled altogether by ail executive act
of the respondent which is the successor of the Ruler. As we
have just indicated, the customary law which required the
R~ler to provide maintenance for his junior brother, can be
said to have been continued by cl. 4(b) of the Order of 1948
and ~t. 372 of the ~onstit.ution; ~ut to say that the customary
law m that behalf 1s continned 1s very different from saying
that the amount of maintenance fixed by the grant cannot be
122
SUPREME COURT REPORTS
[1964]
1964
varied or altered. Wha.t the respondent has done is to stop the
Rojkamar s .. rsingh payment of cash allo~ance of Rs. 500/- per month _and that
Pratap Singh Dro does not mean alteration of the Jaw. It 1s common ground that
8
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the grant of the land covered by the Sanad has not been distatc ~";,~::: "'"1 turbed, and so, all that the impugned action of the respondent
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amounts to is to reduce the total maintenance allowance grantGajendrngadkar. C.J. ed to the appellant by the Ruler in 1931. It is plain that though
the customary law requiring provision to be made for the
maintenance of the appellant is in force, the respondent has
the right to determine what would be adequate and appropriate maintenance, and this part of the right is purely executive in character. It would, we think, be unreasonable. to
suggest that though the Sanad is not law, the amount granted
by the Sanad cannot be modified by an executive act of the
respondent, and that the respondent must file a suit for that
purpose. All that the customary law requires is· the making of
a suitable provision for the maintenance of the junior members
of the family. But wha.t is adequate provision in that behalf
will always be a question of fact which has to be determined
in the light of several relevant factors; the number of persons
entitled to receive maintenance, the requirements of the status
of the members of the family, the total income derived by the
family, and other commitments, may all have to be weighed
in deciding the quantum of maintenance which should be
awarded to anyone of the junior members. In fact, both the
Courts below have agreed in holding that having regard to the
relevant fact~. the grant of the land made by the Sanad would
be adequate and appropriate for the maintenance of the appellant. ·
But apart from this aspect of the matter, we do not see
how the appellant can seriously quarrel with the validity of
the respondent's action in discontinuing the payment of cash
allowance to him. The plea tha.t payment was made for some
time after the merger can hardly avail the appellant in contending that the discontinuance is invalid. In the very nature
of things, the respondent could not have decided whether the
cash allowance should be continued to the appellant or not
without examining the merits of the case, and since a large
number of such cases had to be examined after merger, if the
payment continued to be made in the meantime, that cannot
give any valid ground to the appellant to challenge the legality
of the ultimate decision of the respondent to diswntinue the
payment of the said allowance.
The result is, we confirm the decision of the High Court,
though on somewhat different grounds. The appeal according'
ly fails and is dismissed. There would be no order as to costs.
Appeal dismissed