# SUPREME COCRT REPORTS [1961] THAKUR BRIJ RAJ SINGH AND A:\OTHEH v. THAKUR LAXMAN' SINGH A~D ANOTHER

- **Citation:** [1961] 1 S.C.R. 616
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil First Appeal . No. 28 of 1953
- **Bench:** S. K. Das, M. Hidayatullah, K. c. DAS GUPTA, J.C. Shah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-cocrt-reports-1961-thakur-brij-raj-singh-and-a-otheh-v-thakur-laxman-2200
- **Pages:** 16

## Headnote

Maintainability of suit-Jstimrari estate-·Adoptirm by widow
-Suit challenging fact11m and validity of adoption-Enactment
providing for confirmation of adoption by Central Government and
canditional right of suit-Bar of suil-Ajmer land and Revenue
Regulation. i877 (Regulation I I of i877), ss. 23, 24, I r9.
After the death of B, the holder of an istimrari estate, on
September 28, 1947, leaving no male issue, the Court of Ward~
took over the estate and issued a notice under the provisions of
!ht> Ajmer Land and Revenue Regulation, 1877, inviting claims
to the estate. While the enquiry was pending, an application
was filed to the effect that the appellant was adopted on February 24, 1948. by the widow of ll and that steps should be taken
for the confirmation of the adoption u.nder the third pro,·iso to
s. 23 of the Regulation.
On September 10, 1951, the adoption
was confirmed by the President of India. Thereupon the first
respondent instituted a suit for a declaration, inter alia, that
the appellant was not adopted as a fact and, in the alternative,
the adoption was invalid and illegal. The appellant in his
defence pleaded that after the confirmation of the adoption by
the Central Government, which must be deemed to have considered and decided the factum and legality of the adoption, such
questions could not be challe~ged in a civil court in view of
s. n9, read with s. 23, of the Regulation and that, therefore,
the suit was not maintainable.
Held, (S. K. Das, J .. dissenting). (1) that though under s. 23
of the Ajmer Land and Revenue Regulation, 1877, an adoption
made by a widow is not deemed valid until confirmed by the
Central Government, such confirmation cannot confer validity
on the adoption if it be otherwise invalid under the general
law; and (2) that under s. n9(1) of the Regulation the only
thing done, ordered or decided by the Central Government
which cannot be irripeached, is the confirmation, but the decision
to grant confirmation does not imply an ouster of the jurisdiction of the civil courts to examine the facts and acts of the
the parties, which preceded the proceedings for confirmation.
Accordingly, the present suit brought in the civil court
seeking relief not with reference to the confirmation but-for a
declaration that the adoption is invalid, is not barred under
ss. 23 and II9 of the Regulation.
Per S. K. Das, ].-The confirmation referred to in the third
proviso to s. 23 of the R~gulation necessarily. involves a determination of two facts, viz., {a) whether the widow has power to
1 S.C.R. SUPREME COURT REPORTS
617
z960
adopt, and (b) whether she has in fact adopted a son to the late
istimrardar, as otherwise, divorced from these two facts, the
..
.
confirmation has no meaning and no' intelligible content. Since Thakur Bri; Ra1
under s. II9 no suit lies to obtain a decision contrary to the Singh & Another
order of confirmation, on a proper construction of ss. 23 and II9 ·
v.
of the Regulation, the present suit is barred.
Thakur Lax"'an
s~·ngh 6' Another

## Text

616
SUPREME COCRT REPORTS
[1961]
THAKUR BRIJ RAJ SINGH AND A:\OTHEH
v.
THAKUR LAXMAN' SINGH A~D ANOTHER
(S. K. DAS, M. HIDAYATULLAH, K. c. DAS GUPTA,
J.C. SHAH and N. RAJAGOPALA AYYANGAR, JJ.)
Maintainability of suit-Jstimrari estate-·Adoptirm by widow
-Suit challenging fact11m and validity of adoption-Enactment
providing for confirmation of adoption by Central Government and
canditional right of suit-Bar of suil-Ajmer land and Revenue
Regulation. i877 (Regulation I I of i877), ss. 23, 24, I r9.
After the death of B, the holder of an istimrari estate, on
September 28, 1947, leaving no male issue, the Court of Ward~
took over the estate and issued a notice under the provisions of
!ht> Ajmer Land and Revenue Regulation, 1877, inviting claims
to the estate. While the enquiry was pending, an application
was filed to the effect that the appellant was adopted on February 24, 1948. by the widow of ll and that steps should be taken
for the confirmation of the adoption u.nder the third pro,·iso to
s. 23 of the Regulation.
On September 10, 1951, the adoption
was confirmed by the President of India. Thereupon the first
respondent instituted a suit for a declaration, inter alia, that
the appellant was not adopted as a fact and, in the alternative,
the adoption was invalid and illegal. The appellant in his
defence pleaded that after the confirmation of the adoption by
the Central Government, which must be deemed to have considered and decided the factum and legality of the adoption, such
questions could not be challe~ged in a civil court in view of
s. n9, read with s. 23, of the Regulation and that, therefore,
the suit was not maintainable.
Held, (S. K. Das, J .. dissenting). (1) that though under s. 23
of the Ajmer Land and Revenue Regulation, 1877, an adoption
made by a widow is not deemed valid until confirmed by the
Central Government, such confirmation cannot confer validity
on the adoption if it be otherwise invalid under the general
law; and (2) that under s. n9(1) of the Regulation the only
thing done, ordered or decided by the Central Government
which cannot be irripeached, is the confirmation, but the decision
to grant confirmation does not imply an ouster of the jurisdiction of the civil courts to examine the facts and acts of the
the parties, which preceded the proceedings for confirmation.
Accordingly, the present suit brought in the civil court
seeking relief not with reference to the confirmation but-for a
declaration that the adoption is invalid, is not barred under
ss. 23 and II9 of the Regulation.
Per S. K. Das, ].-The confirmation referred to in the third
proviso to s. 23 of the R~gulation necessarily. involves a determination of two facts, viz., {a) whether the widow has power to
1 S.C.R. SUPREME COURT REPORTS
617
z960
adopt, and (b) whether she has in fact adopted a son to the late
istimrardar, as otherwise, divorced from these two facts, the
..
.
confirmation has no meaning and no' intelligible content. Since Thakur Bri; Ra1
under s. II9 no suit lies to obtain a decision contrary to the Singh & Another
order of confirmation, on a proper construction of ss. 23 and II9 ·
v.
of the Regulation, the present suit is barred.
Thakur Lax"'an
s~·ngh 6' Another
CIVIL
APPELLATE JURISDICTION : Ci vii Appeal
No. 8/1955.
Appeal by special leave from the judgment and
decree dated January 7, 1!154, of the former Judicial
Commissioner's Court, Ajmer, in Civil First Appeal
. No. 28 of 1953.
A. V. Viswanatha Sastri, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants.
B. Sen and I. N. Shroff, for the respondents.
1960. September 8. The Judgment of M. Hidayatullah, K. C. Das Gupta, J. C. Shah and N.
Rajagopala Ayyangar, JJ.,
was
delivered by
Hidayatullah, J.
S. K. Das, J., delivered a separate
Judgment.
HmAYATULLAH J.-This appeal, with the special Hidayatullah J.
leave of this Court, is against the judgment dated
January 7, 1954, of the Judicial Commissioner of
Ajmer in Civil First Appeal No. 28 of 1953, by which
the judgment of the Senior Subordinate Judge, Ajmer,
dismissing the-suit of the first respondent was reversed.
The facts of the case are as follows : One Thakur
Banspradip Singh was the Istimrardar of Sawar. He
died on September 28, _ 1947, leaving no male issue
either by birth or by adoption. After his death, the
Court of Wards took over the estate, and a notice
under s. 24 of the Ajmer Land and Revenue Regula.-
tion, 1877 (Regulation No. II of 1877) was issued
inviting claim!t to the estate. One Thakur Khuman
Singh, who was the father of 'fhakur Laxman Singh
(respondent No. 1), Thakur Brij Raj Singh (appellant
No. 1) and Thakur Inder Singh of Rudh (respondent
~o. 2) preferred claims. While this enquiry was pendmg, Thakur Khuman Singh died, and Thakur Laxman
Singh's name was substituted in his place. During
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SL"PRKME COURT REPORTS
[Hl61]
i96o
the eQquiry, the Deputy Commissioner referred some
Th•'"'' n,,1 Raj interl?c.utor.r mat~e~ to the Chief Commissioner! a.nd
5,,,g,,
~-
Allcther the Cluef Comm1ss1oner fixed the case for hearing on
v.
February 25, 1948.
On that date, an application was
Thaku• Lnxman filed to the effect that Thakur Brij Raj Singh was
Srngh «· A""'"" adopted 011 February 24, 1948, by Rani Bagheliji, the
--
widow of Thi•kur Bansprndip Singh, and that the
Hiduyat11llah ]. Chief Commissioner should move the Governor-Genera.I to confirm the adoption under the third proviso to
s. 23 of the Rcgula.tion. From the judgment of tho
Senior Subordinato Judge, it appears that the application was opposed.
The matter must have been
referred to the Go\•ernor-Gencral, because 011 September IO, 1951, the Secretary to the Government of
India, Ministry of Food and Agriculture, conveyed to the Chief Commissioner the intimation that the
President of India wa.s pleased t-0 confirm the adoption.
Thakur Laxman Singh thereupon filed the present
suit joining Thakur Brij Raj Singh, Rani Bagheliji of
Sa.war a.nd Imler Singh of Rudh as defendants.
Two
reliefs, among others, were claimed. These were:-
" That it may be declared :-
(a) that Deft X o. I was not adopted as a fact by
Deft No. 2 and is not her adopted son, and in· the
alternative, tho adoption of Defendant No. 1 by Deft
Xo. 2 is invalid and illegal; and
(b) that plaintiff is the uearest kin and heir to
late Th. Banspradip Singh."
The learned Subordinate J uclge di<l not frame issues
bearing upon these reliefs, but framed a preliminary
i~suc:
" ls the suit barred bv ss. 24 and 119 of t.ho
Ajmer Land and ltevenue Regulation of 1877 ?"
He held that tho two sections barred the suit and
dismissed it with costs. On appeal to the Judicial
Commissioner at Ajmer, the judgment of the Senior
8ubordinate Judge was re,·ersed.
The learned ,Judicial Commissioner was then moved by Thakur llrij
Ra.j Singh and Rani Bagheliji Singh for a. certificate
under Arts. 133 (1) (a.) a.nd (c) of the Constitution,
i S.C.R. SUPREME COURT REPORTS
619
which he declined because, in his opinion, his judgr96o
ment was not final.
This Court was then moved for Th k
B .. R .
.
.
d
d h
a ur
riJ
a;
spemal leave, which was grante , an
t e present Singh & Anothn
appeal has been filed.
v.
· We are concerned in this appeal with the, interpre- Thakur Laxman
tation of ss. 23, 24 and 119 of the Regulation in the Singh &
Another
light of the pleadings and the nature of the claim.
Before we set out these ~ections, we wish to examine Hidayatullah f.
generally some other provisions of the Regulation
bearing upon this matter. The Regulation in question
is divided into six Parts, and Part II deals with
certain interests in lands, providing inter alia for succession to the holders of such lands. Part II is itself
divided into nine sections, and Section C deals with
Istimrari estates. Section 20 defines an " Istimrari
estate" as one in respect of which an Istimrari sanad
has been granted by the Chief Commissioner with the
previous sanction of the Governor-General-in-Council
before the passing of the Regulation. The section has
been amended by the Adaptation Orders subsequently
passed, in a manner now very familiar.
An "istimrardar " is defined to mean a person to w horn such
sanad has been granted or "any other person who
becomes entitled to the istimrari estate in succession
to him as hereinafter provided". Rules of succession
are to be found in ss. 23 and 24. Section 23 provides for succession to the estate where there is
male issue, and s. 24, when there is no such male
issue. The rema.ining sections· of Section C deal with
tenants, alienation, maintenance, expropriation etc.,
with which we are not concerned. In this way, the
succession to an Istimrari estate is governed by ss. 23
and 24, and any dispute arising iu respect of succession has to be resolved as provided in those sections.
Section 23 reads as follows :
" Succession to estate where there is male issue :-
When an Istimrardar dies leaving sons or male
issue descended from him through males only whether
by birth or adopt.ion or when after the death of an
Istimrardar his widow has power to adopt and adopts
a son to him, the istimrari estate shall devolve as
nearly as may be according to the custom of the
family of the deceased·:
620
SUPRE:\IE COURT REPORTS
[1961]
1960
Provided1., h -B- . R
Ist, Rule of Primogeniture.-that the descent shall
.a "' "'1 "1 .
II
·
51,,8i. & Anoin,,. Ill a cases be to a single heir according to the rule of
,..
primogeniture;
·
n"'"' Lax"'a"
2nd, Whal adoptions valid.-that no adoption
Srngh &
A'"'""' shall be deemed valid unless it is made by a written
document deposited with the Collector or the RegisJfi,tayatullah j. trar of the district;
3nl, Adoption by widow.-that no adoption made
by a widow shall be deemed valid until confirmed bv
the Central Government."
·
•
The contention of the rival parties is as to the interpretation which is to ho placed ·upon the third proviso, taken with the opening words of the s~ction.
One side contends that after the confirmation of the
adoption, no dispute remains which can go to a Civil
Court, in view of the bar contained ins. Il9, to which
we shall refer presently. The other side cc1.lcnds
that in view of the opening words of s. 24, a question
under s. 23 can be taken to a Civil Court for adjudication, and that s. 119 does not bar such a suit. Sections 24 and 119 may now be quoted:
" 24. Succession to estate when there is no male
is8ue :-Any question as to the rigb t to succeed to an
istirurari estate arising in a case not provided for by
section 23 shall be decided by the Central Government, or by such officer as it may appoint in this
behalf:
Provided that the Central Gcivernment, if it
thinks fit, instead of deciding such question itself or
appointing any officer to decide the same, may grant
to any person claiming t-0 succeed as aforesaid a certificate declaring that the matter is one proper to be
determined by a Ci vii Court.
The person to whom such certificate is granted
may institute a suit to establish bis right in any
Court otherwise competent undor the law for the tim"
being in force to try the same, and such Court may,
upon the production of such certificate before it,
entertain such suit.
119.
Except as hereinbofore expressly provided,-
(a) Proceedings u11der Regulation not to be im-
' '
I S.C.R. SUPREME COURT REPORTS
621
peached.-everything done, ordered or decided by the
r96o
Central Governme. nt, State Government or a Revenue 1.h k · R .. R .
,
a ur
riJ
«J
officer under this Regulat10n, shall be deemed to Singh &
Another
have been legally and rightly done, ordered or deciv.
ded •
Thakur Lax1nan
• (b) Limitation of jurisdiction of Civil Oourts.-no Singh &
Another
Civi.1 Court shall entertai!1 any. suit or apl?lication Hidayatullah J.
instituted or presented with a view to obtammg any
order or decision which the Central Government, the
State Government or a Revenue Officer is under this
Regulation empowered to make or pronounce."
Before we consider these sections, it is necessary to
examine briefly the nature of the case, because ss. 23
and 24 contemplate different kinds of cases. The main
reliefs which have been claimed have been set out by
us earlier. It will be noticed that two declaratory
reliefs have been claimed. The first, which is in tw·o
parts, is that Thakur Brij Raj Singh •was not adopted
by Rani Baheliji, and that the adoption was invalid
and illegal. This is a matter which falls within s. 23
and not s. 24. ·The second relief is for a declaration
that the plaintiff is the nearest kin and heir to late
Thakur Banspradip Singh. If Thakur BanSpradip
Singh left no male issue either by birth or by adoption, then the matter of succession is prima facie
governed by s. 24. That section requires that such a
dispute shall be decided by th-e Central Government
or an officer appointed in this behalf. There is, however, a proviso that the Central Government may,
instead of deciding such question itself or appointing
any officer to decide the same, grant to any person
claiming to succeed as aforesaid, a certificate declaring that the matter is one proper to be determined by
a Civil Court. Ex facie, therefore, if the matter fell
only within s. 24, the plaintiff eould not have filed a
suit without a certificate as contemplated. We are
not required to express any opinion upon the merits
of any contention that may hereafter be presented to
the Courts for their decision, because the matter is at
a stage prio.r to that when such pleas can properly be
raised. The third relief originally claimed a perpetual injunction against Thakur Brij Raj !Singh who,
622
SCPRE:ME COURT REPORTS
[ 1961 J
1 9~ 0
should tho question of adoption be decided ·against
..
. him, wuuld have had t-0 fight the original dispute, for
Th•ku, /In; Ila;
I . h
.
d
,
s;., h 6- · Anotlw w 11c
a notwe un er s. 21 of the Regulation had been
g
v.
issued.
A third relief of injunction was deleted
Thak11, La•man when an amended plaint waR filed in the suit.
Singh 6· A1101h"
Section 24 of the Regulation excludes from its operation cases falling within s. 23.
Section 23 deals
Hidayat1•llah f. with succession when there is a rwde issue by birth or
by adoption, and says further tha.t the Istimrari
estate shall devolve, as nearly as may be, according
to the custom of the family of the deceased.
To find
out the rightful heir, it may be necessary to exa.mino
what the family custom is.
That enquiry is taken
out of s. 24 by the opening words of that Rection. No
other forum is indicated for the solution of any dispute that might a.rise bot ween rival claimants, or where
there is a pretendar seeking to succood to the deceased
•
Istimrardar as a ma.le issue. Such a diHpute, should
ono a.rise, would go before a. Ci vii Court, the jurisdiction of which, as has been said on more than one
occasion, is not taken away, unless so expressed by
the law or clearly implied by it. There are no express
words ins. 23 excluding tho jurisdiction of the Civil
Court, and the question to consider is whether thore
io anything which by its clear intendment reaches the
same result.
According to tho a-ppella.nts, the third proviso to
s. 23 re<j11ires that a widow ma.king an adoption
should obtain confirmation from the Central Governmont, and sinco the Contra.I Government in considuring tho matter has to reach a decision on two points,
namely, that t·he widow had the powor to adopt and
had, in fact, adopted a son to the deceased, they must
ho taken to ha.vo been decided by the Central Government when the confirmation of the adoption was
ma.de, and in view of the first clause of s. 119, this is
something" done, ordered or decided by the Central
Government", which must" be deemod to have been
legally and rightly done, ordored or decided ".
R~fe
rcnce is also ma.de to the fact that when the adoption
deed was first brought to the notice of the Chief
Commissioner and it8 confirmation was sought, the
~·
Ii
1 S.C.R
SUPREME COURT REPORTS
623
opposite parties had opposed the request. It is, the.rez960
fore, argued by the appellants that the confirmat10n
..
.
having been granted, there is no dispute remaining 5Thahku:B'A'1 Rth•J
h C. ·1 C
d 'd
rng
~
no
er
in the case and none for t e
1 v1
ourt to em e.
,-.
.
In this connection, it is interesting to see ss. 33 and Thahu1· La.vman
34, which deal with succession . to 'Bhum ', which Sin~h &
Another
means land in respect of which a Bhum sanad may
have been granted. Section 33 reads as follows :
Hidayatullah J.
" Succession to Bhum where there is male issue.-
When a Bhumia dies leaving sons, or male issue descended from .him through males only, whether by
birth or adoption, or when after the death of a Bhnmia his widow has power to adopt and adopts a
son to him, the Bhum shall devolve according to the
custom of the family."
Section 34, which corresponds to s. 24, is ipsissima
verba, except that "Bhum" replaces an " Istimrari
estate". If ss. 33 and 34 are read together, it cannot
be questioned that a matter which falls within s. 33 is
excepted from the operation of s. 34, and that a suit is
not. affected by reason of the opening words of the
Ia.tter section.
Now, s. 23 may be contrasted with
s. 33.
The difference between s. 23 and s. 33 is only this
that in the former section three conditions are mentioned. By the first condition, the law of primogeniture is made applicable, by the second condition, a
deed in writing deposited with the Collector or the
Registrar of the district is rPquired, and by the third,
confirmation of the adoption, in the case of an adoption by a widow, by t.he Central Government has to be
obtained. In our opinion, matters wit bin s. 23 can
also go before a Civil Court in the same way as under
s. 33. The last two provisos to s. 23 create t.wo conditions which the widow must fulfil, before an adoption by her can ever be considered valid.
An adoption to be valid must comply with the requirements
of Hindu law, and the legislature has added two other
conditions.
These conditions merely say that. no
adoption " shall be deemed valid " unless they arc
also com plied with.
The first condition is that the
Bo
624
SVPREME COURT REPORTS
f 1961]
1960
adoption must be by a written document, which is
Th k - 11-
. R . deposited with the Collector or the Registrar of the
a ur "J
•J d'
'
d I
d '
h
'
b
Singh 6 . A"othu 1strrct, an t 1e secon ts t at 1t must
e confirmed
·
v.
by the Central Government. The deposit of the deed,
Thakur Lax,,,•• as required, cannot validate an otherwise invalid
Singh &
A"othu adoption. The confirmation also does not, by itself,
-
confer validity upon the adoption if it bo otherwise
Hidayatullah ]. invalid under the general law, but only fulfils a condition created by the legislature. If that lacuna remains,
the adoption cannot be considered valid, even though
it may be valid from every other point of view. It is
important to notice that the proviso is l'Xpressed in
the negative. It does not sn.y that on confirmation
by the Central Government, the adoption shall be
deemed to be valid.
While the adoption without
confirmation cannot be deemed valid, an adoption
confirmed by the Central Government is still open to
attack on grounds other than those connected with
the confirmation.
' Tho appellants argue that the validity of the adoption C'J,nnot be questioned after its confirmation,
because of s. II 9 of tho Regulation.
Section ll 9
merely leaves out anything done, ordered or decided
by the Central Government from judicial scrutiny.
The heading of the section very clearly brings out the
import of the first clause, and it is that proceedings
under the Regulation are not to be impeached.
The
only thing done, ordered or decided is the confirmation, and though the confirmation cannot be impeached, anything that happens prior to the initiation of·
the proceedings for confirmation is not protected.
When the confirmation proceedings start, the party
seeking confirmation goes to the Central Government
with a f ait accompli, and though the Central Government may satisfy itself, tho decision to grant confirmation does not imply an oustn of the jurisdiction of
the Civil Courts to examine the facts and the acts of
parties, which preceded the proceedings for confirmation.
The legislature in s. 23 has not said this either
expressly or by necessary implication.
That the
widow must have the power to adopt and must, in
fact, adopt a son are matters which may enter into
,.
..
1 S.C.R. SUPREME COURT REPORTS
625
consideration for purposes of confirmation ; but the
i96o
validity of the adoption is still a matter, which the Th k
1J .. R .
C. "l C
"d
h
b ·
· d
1
a ur "1
•J
1v1
ourt can cons1 er, t ere erng no wor s c ear or Singh & Allother
implied by which the validity of the adoption is conv.
elusively established. The force of the first clause Thak"' Laxmau
of s. 119 is merely to sustain the confirmation as some- Singh & .1,.,ei.u
thing done, ordered or decided by the Central Govern-
-
ment, which must be deemed to have been legally and Hidayatull~h f.
rightly done, ordered or decided. It has no bearing
upon the adoption, because that was not something
done; ordered or decided by the Central Government
under the Regulation.
The second clause of s. 119 which limits the jurisdiction of the Civil Court in some respects is also not
applicable. That clause has already been quoted
earlier. The first issue in the suit does not involve the
obtaining of any order or decision which the Central
Government is, under the Regulation, empowered to
ma.ke or pronounce. The Central Government has
confirmed the adoption. The suit is not to obtain
confirmation from a Civil Court but to get the adoption declared invalid. The plaintiff in the case is not
seeking to obtain an order from the Civil Court, which
the Regulation empowers the Central Government to
make. The Central Government is empowered to
make an order of confirmation, but such an order is
not being sought in the suit. What is being sought is
an examination of the validity of the adoption, and
that, as we have already shown above, is not a matter
on which the decision of the Central Government has
been made conclusive.
In our opinion, therefore, the suit in respect of the
first relief is within the jurisdiction of the Civil Court.
The second relief attracts prima facie s. 24, and must
comply with its conditions. The suit has thus to go
on. The order of the Judicial Commissioner, in the
circumstances of the case, was correct, and we see no
reason to differ from it.
In the result, the appeal fails, and will be dismissed
with costs.
SUPnEME COl:HT REPORTS
[l!J61]
'960
S. K. DAS J.-With very great regret I have come
Thaku' 8 ,,i Raj to a. conclusion different from that of my learned
·''""" ,,. A"oth" brethren on the i•suo whether the suit is barred under
v.
the provisions of s. 119 of the Ajmer Land a.nd
l'hah•" Laxma" Revenue Regulation, 1877 (liegula.tion no. II of 1877),
5'"gh ~i..orh" hereinafter referred to as the Regulation. My conolus. J<. Das ;.
sion is that the suit is barred a.nd I proceed to state
shortly the reasons for which I have arrived at that
conclusion.
The rele•a.nt facts have been stated in the judgment
just pronounced on behalf of my lea.med brethren, and
it is not necessary to re. state them.
I need only a.dd
that the plaintiff, now respondent no. I before us,
natl brought the suit for a. declaration that defendant
no. 1 (now appellant no. 1) wa.s not adopted a.a a. fa.ct
by defendant no. 2 (now appellant no. 2); that the
adoption even if established a.s a. fa.ct wa.s in•a.lid a.n'd
illegal; that respondent no. I wa.s the nearest of kin
and hHir to Thakur Ba.nspra.dip Sing and a.s such entitled to succeed to the estate of Sawar a.nd a.II properties
and assets left by the latter; that appellant no. I bo
restrained perpetually from interfering and intermeddling with the estate of Sawa.r; and that a. receiver
be appointed of the estate of Sa.war and a.II its assets,
moveable and immoveable. The pie.int wa.s subsequently amended and the reliefs for permanent injunction and declaration that respondent 110. 1 was entitled
to succeed to the estate of Sa.war were given· up, presume.hly because a suit for such reliefs would be clearly
barred under s. 24 of the Regulation. What now falls
for consideration is whether the suit, even on the
amended pie.int; is barred under the provisions of
s. 119 read with s. 23 of the llegula.tion.
It is 11ecessa.ry to read now some of tho relevant
provisions of tbe Regulation. Section 20 defines a.n
" istimra.ri estate" a.nd it is not disputed that the
estate of Sa.war is such an estate. Section 21 defines
the Ht a.tus of tenants in a.n" istimra.ri estate ". Section
22 <lt·als with alienation of such estate, a.nd then comes
8. 23 which must be rea.<l in full:
" S. 23. Succe8sion to estate where there is male
iasue : When a.n · lstimra.rdar dies lea. v ing sons or ma.le
1 S.C.R. SUPREME COURT REPORTS
627
issue descended from him through males only whether
r96o
by birth or adoption or when after the death of an T' k
8 .. R .
.
. ,
d
d
d
i1a '"
ti)
a;
Istimra.rda.r his widow has power to a. opt an
a. opts 5 ;.,,,, &
_;,,,,11.,,
a. son to him, the istimrari estate shall deYolve as
-
v.
nearly as may be according to the custom of the _r;,"~'": La"'"""
family of the deceased :
·
'"''" c' A >101/ie'
Provided1st, Rule of primogeniture-that the descent shall
in a.II cases be to a. single heir according to the rule of
primogeniture;
2nd, What adoptions valid-that no adoption shall
be deemed valid unless it is ma.de by a. written document deposited with the Collec~or or the Registrar of
the district ;
·
3rd, Adoption by widow-that no adoption ma.de·
by a. widow shall be deemed valid until confirmed by
the Central Government."
, Section 24 says :
·.
.
" S. 24. Succession of estate when there is no mr1le
issue : Any question as to the right to succeed t-0 a.n
istimra.ri estate a.rising in a. case not provided for by
section 23 shall be decided by the Central Go•ern.
ment, or by such officer as it may appoint· in this
behalf.
Provided that the Central Government, if it thinks
fit, instead of deciding such question itself or appointing any officer to decide the same, may grant to any
person claiming to succeed as aforesaid a certificate
declaring that the matter is one proper to be determined ·by a. Civil Court.
The person to whom such certificate is granted
may institute a. suit to establish his right in a.ny Court
otherwise competent under the law for the time being
in force to try the same, and such Court may, upon
the production of such certificate before it, entertain
such suit."
Skipping over provisions which a.re not directly
relevant. for the consideration of the point before us, I
come to s. 119 which is.in these terms:
"S. 119. Except as herein before expressly provided-
·
s.
!-~. D.is. ].
628
SUPREME COUHT REPORTS
[ 1961]
196o
(a) Proceedings under Regulation not to be impeach1.
k
. R . ed :-everything done, ordered, or decided by the
ha ur R><J
OJ ,.,_
I ('
S
G
R
Srn;h c,. .4• 01,,,, vt:ntra.
.overnment, ta.te overnment or a
evenue
v.
officer under this Regulation, shall be deemed to have
Tl.ah,,, I.a.rnrnn been legally and rightly done or ordered or decided;
'•·•c" <>
A><01hrr
(b) Limitation of.jurisdiction of Civil Courts-no
Civ ii Courts shall entertain any suit or application
S K. Da< J.
,
.
j
d
. h
.
b
mst1tute( or presente wit a view to o ta.ining any
order or decision which the Centra~ Government, the
State Government or a Revenue officer is under this
Regulation empowered to make or pronounce''.
The qqestion for decision is whether the suit is
barred under the provisions of s. 1,19 read with s. 23 of
the Regulation. The Senior Subordinate Judge who
tried this prelimina.ry issue held that the ouit was
barred ; the learned J udicia.l Commissioner on appeal
came to a contrary conclusion. The answer to ~he
question depends on the true scope and effect of the
provisions of the two aforesaid sections. I proceed on
tho footing that the genera.I rule of law is that when a.
legal right and an infringement thereof a.re alleged, i;. ·
ca.use of action is disclosed and unless there is a. bar
to the entertainment of a suit, the ordinary civil
courts a.re bound to entertain the claim. The bar
ma.y be express or by necessary implication. On a.
proper construction, do dS. 23 and 119 of the Regulation raise such a bar ?
In my view, they do. The substantive pa.rt of s. 23,
in so far as it is relevant to the point under consideration, refers to two facts: (1) the widow has power
to adopt, and (2) she has in fa.ct adopted a son to the
late istimrarda.r. On these two facts being present,
s. 23 in its substantive part says that the estate shall
devolve as nearly as may be according to the custom
of the family of the deceased. The substantive pa.rt
is followed by three provisos; we a.re concerned only
with the third proviso, which says that no adoption
mad~ hy a. widow shall be deemed valid until continued by the Central Government. Such an brder of
co11tirma.tion was ma.de in the present case. The pro·
v iso is expressed in the form of a. double negative,
and put in the affirmative form, it means that an
l S.C.R. SUPREME COURT REPORTS
629
adoption made by a widow shall be valid, for the- purI960
pose of s. 23, when it is . confirn;ied ~Y. the Cen,t~al Thakur Brij Raj
Government. From one pomt of view, It 1s an add1t10- Singh c:-
Auothrr
nal condition and from another point of view, it emv.
braces within itself a determination of the power to Thakur Laxman
adopt and the fact um of adoption ; for obvious Singh &
Another
reasons, there cannot be an order of confirmation in
vacuo. There must be an adoption before it can be
s. K. Das f.
confirmed. In my opinion, the third proviso must be
read with and in the context of the substantive provision of s. 23 in order to appeciate the true meaning
and content of the confirmation order. In confirming
the a_doption, the Central Government (previously the
Governor-General) must consider the two preliminary
facts, (I) whether the widow has power to adopt and
(2) whether she has in fact adopted a son to the late
istimrardar. The confirmation referred to in the third
proviso necessarily involves a determination of these
two facts.
Divorced from these two facts the confirmation has no meaning and no intelligible content.
The facts of this case also clearly show that on a
notice under s. 24, several claimants put forward
their claims: the widow then adopted appellant no. 1
and an application was made for confirmation. This
application was opposed and after an enquiry made,
the President was pleased to confirm the adoption.
Respondent no. 1 moved the President for a reconsideration of the order confirming the adoption and was
then informed the. t the President saw no reasons to
revise the order of confirmation.
If I am right in my view that the order of confirmation takes in the two preliminary facts, then s. 119
makes it quite clear that no suit lies to obtain a decision. contrary to the order of confirmation: Under
cl. (a) of s. 119 the order of confirmation involving, as
it does in.my view, the determination of the two preliminary facts shall be deemed to have been legally
and rightly done; and under cl. (b) no. suit shall lie to
challenge that determination. The words " legally "
and "rightly" are important. The word ' legally'
means that the order is made ,validly under law;
'rightly ' means that it.is factually correct and proper.
630
Sl'PRE:\IE COURT REPORTS
[1961]
'''"
'l'herefore, the critical question is-what does the
1;·"''" IJ>r, Hai order of confirmation referred to in the third pro-
-''"&" .; ,;',,01,, 0 >ISO tu s. 23 rnvol\'c or embrace?
Does it involve a
v.
determination of the two facts-(!) power to adopt
T;'"'"' L""""" and (2) the factum of adoption ? If it does and I
:,,,,c'· 6
.. 1,,,,i.., think it does, thens. 119 bars the present suit.
It 'seems tci me, and I Hay this with great respect,
s. K. Lia, 1
that a.ny other view will ma.ke .t.he third proviso tu
s. 23 completely pointless. Sections 23 and 24 cover
the entire field of succession to an istimrari estate.
Cnder s. 24 ny question as to the right to succeed to
ari istimrari estate arising in a case not provided for
b\' 8. 23, shall be decided by the Central Government
s•~bject to the proviso thereto. The power of the
Central Government under 8. 24 is unfettered. If
i11spite of ah order of confirmation of the adoption by
a widow ma.de under the third proviso to s. 23 a suit
li"s to challenge the adoption, what happens when
the c:ivil court holds the &<:!option to be invalid? It is
c:1inceded that the confirmation as such cannot be
challenged-that order must remain.
Does the case
then C'ome under s. 23 or s. 24? If it comes under
s. 24, the Central GovF:rnment again has to decide the
q1:estion of succession.
I,f the Central Government
do(:S not ignore its own order· of confirmation, the
resulL will be a. stalemate. Reading ss. 23 and 24
toiiether, I do not think that it was intended that
inspite uf the order of confirmation of an adoption by
the widow a suit will lie to challenge the adoption the
result of which may be to nullify the effect of the contirma.tion order.
Kor <lo I think that ss. 33 and 34 relating to Bhum
Ia.n<ls a.re in point. Section 33 has no proviso like the
third proviso to s. 23, which confirm8 the adoption
by a widow.
The wholl' matter is left at large under
8 . 33, and 8. 119 creates no bar with reference to that
section.
.
There was some argument before us as to whether
the 8uit related to properties not pa.rt of the istimrari
estate.
No such point appears t-0 have been agitated
before the learned Subordinate Judge and so far as
I can make out from the a1J1ended plaint, the suit
I S.C.R. SUPRillME COURT REPOR'.11S
. G31
related to the istimrari estate and the properties thereI960
of, moveable and immoveable.
Thaku• Brij Raj
There was also an application to urge a constitutio- Singh & Another
nal point to the effect that if s. 119 is so construed as
. v.
·
to bar a suit like the one in the present case, . then it Thakur Laxmat1
is .violative of Art. 14 of the Constitution. This point Sit1gh & Another
was not pressed before us ; therefore, it is unnecessary
s. K. Das 1. .
to explain the nature and incidents of these istimrari
estates and the reasons for the classification made. The
argument before us proceeded on a pure question of
construction, and I have addressed myself to that
· question only.
For the reasons already given, I hold that on a proper construction of ss. 23 and 119 of the Regulation,
the present suit is parred. I would, accordingly,
allow the appeal and dismiss the suit. with costs.
BY COURT: In accordance with the majority
Judgment of the Court, ·the appeal is dismissed with
costs.
Appeal dismissed.
THE SAMARTH TRANSPORT CO. (P) LTD.
v.
THE REGIONAL TRANSPORT AUTHORITY,
NAGPUR AND OTHERS.
(B. P. SINHA, c. J., J. L. KAPUR,
P. B. GAJENDRAGADKAR, K. Sul)BA RAo and
K. N. WANCHOO, JJ.)
Motor Vehicles-Application for renewal of stage carriage permits-Approval of scheme of nationalisation by GovernmentApplication refused months after expiry of permits-Order, if without jurisdiction-Disposal, if must be made within reasonable timeDuty of Regional Transport Authority-Motor Vehicles Act, z939
{IV of z939), as amended by Act IOO of z956, ss. 57, 58, 62, 68F.
Asthe petitioner's stage carriage permits were to expire on
Decemher 31, 1959, it made appli~ations for a· renewal of them
a1
September 8.