# the result. Appeal allowed. SHRIMANT DATTAJIRAO BAHIROJIRAO GHORPADE v. SHRIMANT VIJAYASINHRAO AND ANOTHER

- **Citation:** [1960] 3 S.C.R. 789
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeal No. 37 of 1960
- **Bench:** Private) L1a. a single Judge. Costs in High Court will . abide Subba Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-result-appeal-allowed-shrimant-dattajirao-bahirojirao-ghorpade-v-shrimant-1896
- **Pages:** 16

## Headnote

the result.
Appeal allowed.
SHRIMANT DATTAJIRAO
BAHIROJIRAO GHORPADE
v.
SHRIMANT VIJAYASINHRAO AND ANOTHER.
/
. (S. K. DAS, A. K. SARKAR and M. HIDAYATULLAH, JJ.)
Saranjam Estate-Maintenance grant to junior member-Power
of Government to resume and re-grant-Custom of lineal primogeniture,
• extent and effect of-Suit challenging Government order of resumption
and re-grant-If barred-Saranjam Rules-Bombay Revenue Jurisdiction Act, z876 (Bom. X of I876), s. 4.
Upon the death of the holder in 1932, the Government of
Bombay by order dated June 7, 1932, resumed the Saranjam
estate of Gajendragad and re-granted the same to his eldest son.
By the same order the assignment of some lands out of the estate
in favour of B, a younger member of the family, by way of maintenance was also continued. On May 14, 1940, B died leaving
his widow, A, and his undivided brother, D. A asked the Government for permission to adopt a son but without the permission
being granted adopted Von July IO, l94I. By an order dated
December 17, 1941, the Government continued the maintenance
grant (Saranjam potgi) to D. Thereupon V filed a suit against
., the Government and D for recovery of the lands on the grounds
(i) that the order of the Government dated December 17, 1941,
was ultra vires, null and void, and (ii) that by the custom of
lineal primogeniture which prevailed in the family the lands,
upon the death of B and upon the adoption of V by A, devolved
upon V in preference to D. The suit was contested, inter alia, on
. the grounds : (i) that under the relevant Saranjam Rules the
interest of B came to an end on his death and was not such as
could devolve upon V despite the order dated December 17, 1941,
(ii) that the alleged family custom did not apply to maintenance
grants and (iii) that the suit was barred under s. 4 of the Bombay
Revenue Jurisdiction Act, 1876 :
Held, that the plaintiff was not entitled to the lands either
under the Saranjam Rules or under the custom; further that
the suit was barred by s. 4 of the Bombay Revenue Jurisdiction
A.ct, 1876,
IQ~
i960
April 29.
7!JO
SUPREME COURT REPORTS
[1960]
The maintenance grant (potgi holding) was part of the
S . --
..
Saranjarn and was governed by the incidents of Saranjarn tenure
hriman~ D~_tta1irao and by the relevant Saran jam Rules.
Saran jam grants were
BGk;;;;;;;o
granted or 'vithheld at the will and pleasure of the sovereign
v.
power and the grant was always subject to interruption and
Shrimant Vijaya- revocation by resumption, temporary or absolute.
On the death
sinhrao
of B it was open to the Government to resume the grant and
to grant it to D and this is what it did by the order dated
December 17, 194r. The taking in adoption of the plaintiff by
the widow of the deceased could not affect the operation of the
order passed by the Government.
Daulatrao Malojirao v. Province of Bombay (1946) 49 Born.
L.R. 270, referred to.
Even under the custom of lineal primogeniture pleaded by
the plaintiff, D was entitled to get the properties after the death
of B. It was not pleaded that the properties once so vested were
divested by subsequent adoption by the widow. Further it was
neither pleaded nor proved that the custom took away the right
of the Government to resume the maintenance grant and to make
a fresh grant thereof.
Sub-clause 4 of the Bombay Revenue Jurisdiction Act, 1876, .
barred the jurisdiction of civil courts·in respect of'' claims against
the Government relating to lands granted or held as Saranjam".
The plaintiff asked for a finding that the order of December 17,
r94r, was null and void and did not affect the properties in suit.
Unless the order was out of his way, the plaintiff was not entitled
to claim recovery of possession.
The claim v.1as one which fell
.within the mischief of s. 4 and the suit was barred.

## Text

--
....
• I
3 S.0.R. SUPREME COURT REPORTS
789
Order of Court.
Ig6o
In view of the majority judgment of the Court, the Arunachalam Pillai
appeal is allowed with costs in this Court, and the SouthernvRoadways
case rem.anded to the High Court for a re-hearing by
(Private) L1a.
a single Judge. Costs in the High Court will . abide
Subba Rao J.
the result.
Appeal allowed.
SHRIMANT DATTAJIRAO
BAHIROJIRAO GHORPADE
v.
SHRIMANT VIJAYASINHRAO AND ANOTHER.
/
. (S. K. DAS, A. K. SARKAR and M. HIDAYATULLAH, JJ.)
Saranjam Estate-Maintenance grant to junior member-Power
of Government to resume and re-grant-Custom of lineal primogeniture,
• extent and effect of-Suit challenging Government order of resumption
and re-grant-If barred-Saranjam Rules-Bombay Revenue Jurisdiction Act, z876 (Bom. X of I876), s. 4.
Upon the death of the holder in 1932, the Government of
Bombay by order dated June 7, 1932, resumed the Saranjam
estate of Gajendragad and re-granted the same to his eldest son.
By the same order the assignment of some lands out of the estate
in favour of B, a younger member of the family, by way of maintenance was also continued. On May 14, 1940, B died leaving
his widow, A, and his undivided brother, D. A asked the Government for permission to adopt a son but without the permission
being granted adopted Von July IO, l94I. By an order dated
December 17, 1941, the Government continued the maintenance
grant (Saranjam potgi) to D. Thereupon V filed a suit against
., the Government and D for recovery of the lands on the grounds
(i) that the order of the Government dated December 17, 1941,
was ultra vires, null and void, and (ii) that by the custom of
lineal primogeniture which prevailed in the family the lands,
upon the death of B and upon the adoption of V by A, devolved
upon V in preference to D. The suit was contested, inter alia, on
. the grounds : (i) that under the relevant Saranjam Rules the
interest of B came to an end on his death and was not such as
could devolve upon V despite the order dated December 17, 1941,
(ii) that the alleged family custom did not apply to maintenance
grants and (iii) that the suit was barred under s. 4 of the Bombay
Revenue Jurisdiction Act, 1876 :
Held, that the plaintiff was not entitled to the lands either
under the Saranjam Rules or under the custom; further that
the suit was barred by s. 4 of the Bombay Revenue Jurisdiction
A.ct, 1876,
IQ~
i960
April 29.
7!JO
SUPREME COURT REPORTS
[1960]
The maintenance grant (potgi holding) was part of the
S . --
..
Saranjarn and was governed by the incidents of Saranjarn tenure
hriman~ D~_tta1irao and by the relevant Saran jam Rules.
Saran jam grants were
BGk;;;;;;;o
granted or 'vithheld at the will and pleasure of the sovereign
v.
power and the grant was always subject to interruption and
Shrimant Vijaya- revocation by resumption, temporary or absolute.
On the death
sinhrao
of B it was open to the Government to resume the grant and
to grant it to D and this is what it did by the order dated
December 17, 194r. The taking in adoption of the plaintiff by
the widow of the deceased could not affect the operation of the
order passed by the Government.
Daulatrao Malojirao v. Province of Bombay (1946) 49 Born.
L.R. 270, referred to.
Even under the custom of lineal primogeniture pleaded by
the plaintiff, D was entitled to get the properties after the death
of B. It was not pleaded that the properties once so vested were
divested by subsequent adoption by the widow. Further it was
neither pleaded nor proved that the custom took away the right
of the Government to resume the maintenance grant and to make
a fresh grant thereof.
Sub-clause 4 of the Bombay Revenue Jurisdiction Act, 1876, .
barred the jurisdiction of civil courts·in respect of'' claims against
the Government relating to lands granted or held as Saranjam".
The plaintiff asked for a finding that the order of December 17,
r94r, was null and void and did not affect the properties in suit.
Unless the order was out of his way, the plaintiff was not entitled
to claim recovery of possession.
The claim v.1as one which fell
.within the mischief of s. 4 and the suit was barred.
CIVIL APPELLATE JURISDICTION:
Civil Appeal
No. 37 of 1960.
Appeal from the judgment and decree dated
November 12, 1952, of the Bombay High Court in
First Appeal No. 492 of 1949, arising out of the judgment and decree dated the 20th April, 1949, of the
First Class Sub-Judge, Dharwar, in Special Civil Suit
No. 16 of 1943.
S. N. Andley, J.B. Dadachanji, Rameshwar Nath
and P. L. Vohra, for the appellant.
N aunit Lal, for respondent No. 1.
B. R. L. Iyengar and T. M. Sen, for respondent
No. 2.
1960.
April 29.
The Judgment of the Court was
delivered by
:)
s. K, Das],
S. K. DAS, J.-This is an appeal on a certificate
given by the High Court of Bombay, from the judgment and decree of the said High Court dated
'""'\
.....
3 S.C.R. SUPREME COURT REPORTS
791
November 12, 1952, by which it reversed the decision
196o
of the Civil Judge, First Class, at Dharwar dated Shrima;;;J;;,ttajfrao
April 20, 1949, in Special Civil Suit No. 16 of 1943.
Bahirojirao
The material facts are these. Gajendragad in Taluk
Gho_'t,ade
Ron in the district of Dharwar is a Saranjam estate Shrim~nt Vijaya-,
k
th G . d
d S
.
b
.
b
sinhrao
nown as
e aJen raga
aranJam earmg num er
_
91 in the Saranjam list maintained by Government. s. K. Das J.
Within that estate lay village Dindur and survey field
No. 302 of Unachgeri, which are the properties iri suit;
One Bhujangarao Daulatrao Ghorpade was the holder
of the Saranjam estate at the relevant time. In 1932
the Saranjam was resumed and regranted to the said
Bhunjangarao by Resolution No. 8969 dated June 7,
1932, of the Government of Bombay in the Political
Department. This Resolution said :
" The Governor in Council is pleased to direct
that the Gajendragad Saranjam should be formally
resumed and re.granted to Bhujangarao Daulatrao
Ghorpade, the eldest son of the deceased Saranjamdar Daulatrao Bhujangarao Ghorpade, and that
it should be entered in his sole name in the accounts
of the Collector of Dharwar with effect from the
date of the death of the last holder. The Collector
should take steps to place the Saranjamdar in possession of the villages of the Saranjam estate which
were in possession of the deceased Saranjamdar .
The Governor in Council agrees with the Commissioner, Southern Division, that the assignments
held by the Bhaubands as potgi holders shoud be
continued to them as at present."
One of the younger branches of the Ghorpade family
was Babasaheb Bahirojirao Ghorpade, to be referred
to hereinafter as Babasaheb. He held by way of
maintenance (as potgi holder) the aforesaid village of
Dindur and survey field No. 302 of Unachgeri. He
had an undivided brother called Dattojirao, who was
defendant No. 2 in the suit and is appellant before us.
In this judgment we shall call him the appellant:
Babasaheb died on May 14, 1940. On his death he left
a widow named Abayabai and the appellant, his
undivided brother. On July 10, 1941, Abayabai adopted
Vijayasinhrao as a son to her deceased husband.
Vijayasinha was the plaintiff who brought the suit,
792
SUPREME COURT REPORTS
[1960]
r960
and is now the principal respondent before us. It will
Shrima;;/ Dallajiiao be convenient if we call him the plaintiff-respondent,
BaJ,frojirao
and state here that he was the natural son of
Gko'./.ade
Bhujangarao's younger brother, another Dattajirao
Shrim~nt Vijaya- to be distinguished from the appellant who also bears
''::_h::'_o
the same name. On Babasaheb's death Abayabai
s. K Dos J.
asked for sanction of Government to her taking a boy
in adoption ; this application was opposed by the
appellant. On December 17, 1941, the Government of
•
Bombay passed a Resolution in the following terms :
" 1. Government is pleased to direct that the
-~
Saranjam potgi holding of village Dindur and
Survey No. 302 of Unachgeri, which were assigned
for maintenance to the deceased potgidar, Mr. Babasaheb Bahirajirao Ghorpade, at the time of the
re-grant of the Gajendragad Saranjam, should be
,"'
continued to his undivided brother, Mr. Dattajirao
Bahirojirao Ghorpade.
2.
Government is also pleased to direct, under
Rule 7 of the Saran jam Rules, that the new potgidar,
Mr. Dattajirao Bahirojirao Ghorpade, should give to
Bai Abaibai, widow of the deceased Potgidar, Mr.
Babasaheb Bahirojirao Ghorpade, an annual maintenance allowance of Rs. 300 for her life.
..,
3.
These orders should take effect from the 14th
May, 1940, i.e., the date on which the deceased
potgidar, Babasaheb Bahirojirao Ghorpade, died.
4.
The Commissioner S. D. should be requested
to communicate these orders to Bai Abaibai, widow
of the late potgidar, with reference to her petitions
addressed to him and also to the Rayats of Dindur,
with reference to their petition, dated the 12th
May, 1941. The orders shduld also be communicated
to the present Saranjamdar of Gajendragad."
On February 8, 1943, the plaintiff-respondent brought
the suit against the Province of Bombay as defendant
No. 1, the appellant as defendant No. 2 and Abayabai
as defendant No. 3. The suit was contested by the
Province of Bombay (now substituted by the State of
Bombay) and the appellant. Abayabai supported the
case of the plaintiff-respondent, but she died during
the J,lenrlency of the suit.
S.C.R. SUPREME COURT REPORTS
793
The claim of the plaintiff-respondent was that on
i96o
his adoption the estate of his deceased adoptive father Shrimant Dattajirao
devolved on him by the rule of lineal primogeniture
fiakiroJirao
•
11
Th
•
l
f h
Ghorpade
m.preference to th~ appe ant.
e mam pea o t e
v
plaintiff-respondent was stated in paragraph 6 of the Shrim0;nt Vijayaplaint, which read as follows :
s•nhrao
" 6. The Government
Resolution passed by ·5 · K; Das l•·
defendant No. 1 in 1941 is ultra vires and null and
void for the following reasons :
(a) Defendant No. 1 made a regrant of the
Saranjam estate to Shrimant Sardar Bhujangarao
Ghorpade in 1932 and therein the suit properties
were, according to defendant No. 1, continued tq the
adoptive father of plaintiff. Under the Saranjam
rules no occasion has arisen for interference by
Government at this stage. The regrant made by
Government would in any case be effective during
the life-time of the grantee, viz., Shrimant Sardar
Bhujangarao Ghorpade. Further the said Shrimant
Sardar Bhujangarao Ghorpade was not consulted
by defendant No. 1 before the said Government
Resolution.
(b) By the custom of the family to which the
family belongs, the estate of a deceased person
devolves by the rule of lineal primogeniture. Hence
after the death of plaintiff's adoptive father anQ. the
adoption of plaintiff himself, all the estate vested in
plaintiff's adoptive father has devolved on the
plaintiff in preference to defendant No. 2.
The
action of defendant No. 1 in ignoring this rule of
succession prevalent in the family is ultra vires and
null and void."
On the aforesaid pleas, the plaintiff-respondent prayed
for (a) recovery of possession of properties in suit
from the appellant, (b) mesne profits, and (c) costs.
On behalf of the Province of Bombay several pleas
by way of defence were taken. The main pleas were
(1) assuming that the plaintiff-respondent was validly
adopted, he had nevertheless no legal claim to the
properties in suit because under the relevant Saranjam
Rules the interest of Babasaheb came to an end on
his death and was not of such a nature as would
794
SUPREME COURT REPORTS
[1960]
r96o
devolve on the plaintiff-respondent despite tbe GovernShrimant Dattajirao ment Resolution dated December 17, 1941, (2) that
Bahirojirao
the alleged family custom did not apply to maintenGho;ade
ance grants, and (3r that, in any event, the suit was
Shrimant Vijaya- barred under s. 4 of the Bombay Revenue Jurisdiction
sinhrao
Act, 1876. The appellant besides supporting the afores. K. Das J.
said pleas raised the additional pleas that there was
no valid adoption of the plaintiff-respondent and
Abayabai was expressly prohibited by her husband
from adopting a son.
On these pleadings several issues were framed. The
suit was originally dismissed on a preliminary ground,
namely, that the plaint did not disclose any cause of
action. The learned Civil Judge apparently took the
view that the properties in suit were subject to the
Saranjam Rules and on examining those rules, he came
to the conclusion that as the plaintiff-respondent on
his adoption became a nephew of the appellant and
in that sense was claiming maintenance from the latter,
it was necessary for him to have alleged the necessary
circumstances under which certain members of a
Saranjam Family are entitled to claim maintenance
under Rule 7 of the said Rules and as those circumstances were not pleaded by the plaintiff-respondent,
the plaint disclosed no cause of action. The High
Court rightly pointed out that the plaintiff-respondent
did not make a claim for maintenance under Rule 7 of
the Saranjam Rules, but claimed that the properties
in suit devolved on him by reason of his adoption and
the custom of lineal primogeniture. Therefore, the
High Court held that the claim of the plaintiff-respondent ·was much more fundamental than a mere
claim of maintenance, and the learned Civil Judge had
misdirected himself as to the true scope of the suit.
Accordingly, the High Court set aside the decree of
dismissal and directed the suit to be tried on all the
issues.
After this direction the learned Civil Judge tried all
the issues.
Issues 1 and 2 related to the question of
adoption, namely, (1) whether the ceremony of adoption was properly proved and (2) whether Babasaheb
during his life-time had prohibited his wife from
making an adoption. On the first issue the learned
3 S.C.R.
SUPREME COURT REPORTS
795
Civil Judge found in favour of the plaintiff-respondent
I96°
and on the second against him.
The High Courtshrima-,-;tn-attnjirao
affirmed the finding on the first issue, and on a careBahiroji~ao
fol and detailed examination of the evidence held on
Gho•.t,a e
the second issue that the learned Civil Judge was Shrimif"' Vijayawrong in holding that the adoption was invalid by
•':'_h~~
reason of the alleged prohibition of Babasaheb. The
s. K. Das J.
High Court held that there was no such prohibition,
and the adoption was valid. We do not think that
this finding of the High Court has been or can be
successfully assailed before us.
Therefore, we have
proceeded in this appeal on the basis that the plaint»I'-
respondent was validly adopted by Abayabai on
July 10, 1941.
We go now to a consideration of those issues which
are material for a decision of this appeal. They are:
Issue No. 3-Does plaintiff prove his title to the
suit property?
Issue No. 4-Is it proved that the Government Resolution (D. G.) No. 8969 of December 17, 1941, is ultra vires and null
and void as alleged in the plaint ?
Issue No. 5-Is the suit barred under section 4 of the
Revenue Jurisdiction Act?
Issue No. 7-Is the alleged
custom set up in
para. 6(b) of the plaint proved?
On all these issues the learned Civil Judge found
against, the plaintiff-respondent, and held that the
latter was not entitled to recover possession of the
properties in suit, that he had failed to prove the
custom pleaded in paragraph 6(b) of the plaint, that
the Government Resolution of December 17, 1941, was
not ultra vires, and that the suit itself was barred
under s. 4 of the Bombay Revenue Jurisdiction Act,
1876. The High Court reversed the decision of the
learned Civil Judge on all the aforesaid issues, and
held that as the properties in suit were given to the
junior branch of Babasaheb for its maintenance and
were impartible and governed by the rule of lineal
primogeniture, they devolved on the appellant after
Babasaheb's death; but as soon as Babasaheb's widow
796
SUPREME COURT REPORTS
z960
made a valid adoption, the properties were divested
Shrima.ntD~ttajfraoand inasmuch as the plaintiff-respondent became the
Bahirojirao
eldest member of the senior branch of Babasaheb's
Gho;pade
family, he became entitled thereto as a result of the
Shrim~nt Vijaya- combined effect of the family custom and ordinary
sinh.ao
Hindu law. The High Court said that looked at from
s. K. Das ./.
this point of view, no question arose of the validity
of the Government Resolution dated December 17,
1941, and no relief for possession'having been claimed
against Government, the suit was not barred under
s. 4 of the Bombay Revenue Jurisdiction Act, 1876 .
• On behalf of the appellant, it has been very strenuously argued that the High Court was in error in
holding that the properties in suit which are part of
a Saranjam, vested in the appellant on the death of
Babasaheb and were then divested on the adopti9n of
the plaintiff-respondent; it is contended that snch a
conclusion is inconsistent with the nature of a Saranjam tenure and furthermore, the properties in suit
having vested in the appellant by reason of the regrant dated December 17, 1941, they could not be
divested by the adoption made on July 10, 1941. Nor
does it follow, it is contended, from the custom pleaded
in paragraph 6(b) of the plaint, apart from the question whether even that custom has been proved or
not, that the properties in suit having once vested iti
the appellant will be divested on a valid adoption.
Secondly, it has been contended that the High Court
was also in error in holding that there was no claim
against Government within the meaning of the fourth
sub-cl. of s. 4(a) of the Bombay Revenue Jurisdiction
Act, 1876.
The argument before us has been that
thPre was such a claim, and no Civil Court had jurisdiction to determine it.
We are satisfied that these arguments are correct
and should be accepted. The claim of the plaintiffrespondent that the properties in suit devolved on him
on his adoption may be examined either from the
point of view of the Saranjam Rules or the custom
which he pleaded in paragraph 6(b) of the plaint. Let
us examine the claim first from the point of view of
the Saranjam Rules assuming here that they apply,
'j
--
....
-
3 S.C.R. SUPREME COURT REPORTS
797
as far as practicable, to maintenance grants (potgis)
x960
within the Saranja_m. In the Resolution of June 7'.~hrimantDattajirao
1932, quoted earher, the Government of Bombay
JJahirojirao
treated the potgi holders as being within the Saranjam
Ghorpade_
and made provision for them. The Resolution of Shrima:i Vijaya•
December 17, 1941, also proceeded on that footing.
sinhiao
Two earlier Resolutions, one of 1891 (Ex. 100) and
s. K. vas J.
the other of 1936 (Ex. 101 ), also treated the whole of
Gajendragad and also parts thereof as a Saranjam.
Babasaheb in his lifetime wanted to surrender the
grant in his favour to the Saranjamdar, but Government refqsed to accept such relinquishment.
Even
Abayabai asked for permission of Government to .
take a boy in adoption, which permission she did not
obtain. All this shows that the potgi holding was part
of the Saranjam and was treated as such by all the
parties concerned.
What is a Saranjam?
The word "Saranjam"
literally means apparatus, provisions or materials. In
his Glossary, Wilson defines Saranjam as temporary
assignments of revenue from villages or lands for
support of troops or for personal service usually for
the lifetime of the grantees. Dr. G. D. Patel in his
book on " The Indian Land Problem and Legislation "
has said:
"According to the account given by Col. Ethe-
. ridge in his preface to the Saranjam List, it was the
practice of the former Governments, both the Muslims and the Marathas, to maintain a species of
feudal aristocracy for the State purposes by temporary assignments of revenue either for the support
of the troops or personal service, the maintenance
of official dignity or for other specific reasons. The
holders of such lands were entrusted at the time
with the necessary powers for enabling them to
collect and appropriate the revenue and to administer the general management of the lands. Under
the Muslim rule, such holdings were called J ahagirs
and under the Maratha rule, they came to be called
Saranjam. However, this distinction between these
·tenures ceased to exist during the Maratha period.
At the time of the introduction of the British rule,
104
798
SUPREME COURT REPORTS
[1960]
r960 ·
Shrimant Dattajirao
:' · Bahirojirao.
the difference between a Jahagir and a Saranjam
ceased to exist, to all intents and purposes. The
two terms became convertible and all such grants
came to be known by the general term "saranjam".
Apart from the Saranjam grants, which were found ·
only in the Deccan, there were other grants of a
political nature found scattered over the whole
State. Their origins did not materially differ from
those of the Saranjam with the result that the
British treated them under the same rules called the
Saranjam Rules".
Ghorpade
v.
Shrimant Vijaya~
sinhr40
S. K. Das].
The Saranjam Rules were made in exercise of the
. powers referred to in r. 10 of Schedule B of Act XI of
1852 and of the second sub-cl. to cl. 3 of s. 2 of Bombay Act VII of 1863. We may here reproduce some
of these Rules:
" Rule 1-Saranjams shall be ordinarily continued
in accordance with the decision already passed or
which may hereafter be passed by Provincial
Government in each case.
Rule 2-A Saranjam which has been decided to
be hereditarily continuable shall ordinarily descend
to the eldest male representative in the order of
primogeniture, of the senior branch of the family
descended from the First British grantee or any of
his brothers who were undivided in interest. But
Provincial Government reserve to themselves the
rights for sufficient reasons to direct the continuance of the Saranjam to any other member of the
said family, or as an act of grace, to a person
adopted into the same family with the sanction of
Provincial Government. When a ·saranjam is thus
continued to an adopted son, he shall be liable to
pay to Provincial Government a nazarana not
, exceeding one year's value of the saranjam, and it
. shall be levied from him in such instalments as Provincial Government may in each case direct.
Rule 5-Every saranjam shall be held as a life
estate. It shall be formally resumed on the death
of the holder, and in cases in which it is capable of
further continuance, it shall be made over to the
next holder as a fresh grant from Provincial
)
3 S.C.l{. SUPREME COURT REPOHTS
799
Government, unencumbered by a:iy debts or charges
I96o
save such c,s may be specially imposed by ProvincialshrimantDattajirao
Government itself.
Bahirojirao
,
Ghorpade
Rule 7-Every saranJamdar shall be responsible
v.
for making a suitable provision for the maintenance Shrimant Vijayasinhrao
of the willow or widows of the preceding saranjamdar, his own brothers, or any other member of his
S. K. Das J.
family who, having a valid claim arising from infancy, mental or physical deformity rendering such
member incapable of earning a livelihood, may be
deemed deserving of support at his hands. When
this obligation is not fulfilled by any saranjamdar,
Provincial Government may direct him to make
suitable provision for such person and may fix the
amount, which he shall pay in each instance; provided that no one who has independent means of
his own, or is, in the opinion of Provincial Govern-
'
ment, otherwise sufficiently provided for, shall be
entitled to maintenance from the Saranjamdar.
Rule 8-Every order passed by Provincial
Government under the above rule for the grant of
maintenance by a Saranjamdar shall hold good
during his life only ".
The true nature of a Saranjam tenure was considered
by a Full Bench of the Bombay High Court in
Daulatrao Malojirao v. Province of Bombay(') where
their Lordships after referring to the earlier decisions
in Shekh Sultan Sani v. Shekh Ajmodin(2 ) and.Raghojirao v. Laxmanrao(3) observed:
" An examination of the authorities, makes it
clear that the whole structure of a Saranjam tenure
is founded in the sovereign right, which can only
change by conquest or by treaty. So founded, jagirs
and Saranjams, with the feudal incidents connected
with them, are granted or withheld at the will and
pleasure of the sovereign power, and, if granted, the
fixity of tenure is always subject to interruption and
revocation by resumption, be it temporary or absolute in character. No incident normally applicable
(1) (1946) 49 Bum. L.R. 270.
(2) (1892) L.R. 20 I.A. 50.
(3) (1912) 14 Born. L.R. 1226.
800
SUPREME COURT REPORTS
[1960]
'960
to private rights between subject and subject can
Shrimant Dattajirao
fetter or disturb the sovereign will ".
Bahirojirao
I
·c
1
1
h
h
S
·
Ghorpad•
t seems to us mamiest y c ear t at t e
araniam
v.
Rules furnish no basis for the claim of the plaintiffShrimant Vijayad
Ab
b ·
k d f
·
h
sinhrao
respon ent.
aya a1 as e
or sanction to
er
taking a boy in adoption. No such sanction was
s. K. Das f.
given. On the death of Babasaheb, it was open to
Government to resume the grant, and by its Resolution of December 17, 1941, Government directed that
the Saranjam potgi holding of village Dindur and
Survey No. 302 of Unachgeri should be continued to
the appellant. This really amounted to a resumption
and fresh grant and we do not agree with the High
Court that the order passed amounted to no more than
recognising the legal position according to the rule of
succession and stood on the same footing as any order
of ordinary mutation. The High Court has emphasised the use of the word " continued" in the Resolution dated December 17, 1941, and has contrasted
that Resolution with the earlier Resolution dated
June 7, 1932, which was clearly a Resolution giving
effect to a resumption and regrant of the Gajendragad
Saranjam. It may, however, be pointed out that in
paragraph 2 of the earlier Resolution, Government
used the same word "continued " in connection with
the maintenance grants, namely, potgi holdings within a Saranjam. Nothing, therefore, turns upon the
use of the word "continued" and if the Resolution
dated December 17, 1941, is read as a whole it is clear
that the potgi of village Dindur and Survey field
No. 302 of Unachgeri was granted to the present
appellant. It was open to Government to pass such
an order, and we see no reasons to hold that it was
null and void. Indeed, the High Court did not say
that it was an invalid order; on the contrary, it said
that it was a good order and operated with effect from
the death of Babasaheb. But it said erroneously in
our opinion, that by reason of the subsequent event
of adoption, the order ceased, for all practical purposes, to have any effect from that event. It is well
to remember that the ~doption took place on July 10,
1941, and the Resolut10n was passed on December 17,
3 S.C.R. SUPREME COURT REPORTS
801
1941, though it took effect retrospectively from the
r96o
date ?f death of Babasaheb. We see _no reasons why Shrima-;,,D~ttajirao
a vahd order made by Government will cease to have
Bahirnjirao
any effect because of an adoption made by Abayabai
&ho;tade
without sanction of Government. To hold that the Shrimant Vi;ayaGovernment Order ceased to have any effect by reason
sinhrao
of the act of a private party will be to go against the
s. K. Das J.
very nature of a Saranjam tenure.
Let us now examine the claim of the plaintiff-respondent from the point. of view of the custom pleaded
in paragraph 6(b) of the plaint. The custom pleaded
was the rule of lineal primogeniture. In its written
statement Government said :
" The family custom alleged in clause (b) is not
admitted, and it is denied that such a custom can
apply in respect of maintenance grants. Under
Rule 7 of the Saranjam Rules, which merely embody
the customary law relating to Saranjams, Government is given absolute discretion to determine
whether or not to make an order and what provision to make and in whose favour".
The appellant said:
"The contents of para. 6(b) of the plaint are not
correct. The custom of descent by the rule of
primogeniture is denied. This defendant has become the owner by survivorship, after the death of
Babasaheb ".
The learned Civil Judge found that the custom pleaded in paragraph 6(b) of the plaint was not proved.
The High Court has not referred to any evidence on
which the custom could be said to have been proved,
but observed that "it is common ground that the
properties which had been assigned to this branch
for its maintenance is impartible and goes by primogeniture". Even if we assume that the High Court
is right in its observation, though in face of the denial
in the two written statements it is difficult to see how
this could be common ground between the parties,
we fail to appreciate how the assumption helps the
plaintiff-respondent. On the operation of the rule of
lineal primogeniture after the death of Babasaheb,
the appellant
became entitled to and got the
802
SUPREME COURT REPORTS
[1960)
I96o
properties. It was not pleaded in the plaint that the
Shrimo~t~D~ttajirao properties once vested by the customary rule of lineal ,
8(;~" 017°
primogeniture were divested on subsequent adoption
0
~~· '
by the widow.
No such plea was specifically taken,
Shrim~nt Vijaya: but the High Court relied on the concession made by
--
1
.
earned advocate for the appellant that under ordmary
s. K. Das J.
Hindu law the properties which were vested in the
appellant were divested on a subsequent valid adoption . by the widow·.
We consider it unnecessary to go
into the vexed question of divesting of an .estate on a
subsequent valid adoption by the widow. It is enough
to point out that the plaint disclosed no such case;
no such issue was raised .and it was not open ~o the
plaintiff-respondent to make out a new case fo; the
first time in appeal. The plaintiff-respondent seu up
a family custom of lineal primogeniture different fr01_,
the ordinary law of inheritance; it was incumbent on
him to allege and prove the custom on which he relied
and to show its precise extent and how far it prevailed
over ordinary Hindu law. In our opinion, he failed
to plead or prove any family custom by which th!!.
properties devolved on him. Moreover, in order fo
succeed the plaintiff-respondent must further establish
that the custom was such as would bind the Government. The appellant and the Government never
conceded that the custom of lineal primogeniture, if it
prevailed in the family, took away the right of
Government to resume the maintenance grant which
was pat"t of a Saranjam and make a. fresh grant thereof in accordance with the Saranjam Rules.
Now, as to s. 4 of the Bombay Revenue Jurisdiction Act, 1876. The section, so far as it is relevant
for our purpose, says:-
" S. 4.-Subject to the exceptions hereinafter
appearing, no Civil Court shall exercise jurisdiction
as to any of the following matters :
(a) claims against the Government relating to
any property appertaining to the office of any hereditary officer appointed or recognised under Bombay
Act No. III of 1874 or any other Jaw for the time
being in force, or of any other village-officer or
\
servant, or
t.
/
-~-· -"
·-~
S.C.R. SUPREME COURT REPORTS
$03
claims to perform the duties of any such officer
I96o
or servant, or in respect of any injury caused by Shrimant Dattajirao
exclusion from such office or service, or
Ba_hiroji>ao
suits to set aside or avoid any order under the
Gho::ade
same Act or any other law relating to the same Shrim~nt Vijayasubject for the time being in force passed by the
sinhrao
State Government or any officer duly authorized
's. K. Das j.
in that behalf, or
claims against the Government relating to lands
held under treaty, or to lands granted or held as
Saranjam, or on other political tenure, or to lands
declared by the Provincial Government or any
officer duly authorized in that behalf to be held for
service".
In M allappa alias A nnasaheb Basvantrao Desai N adgouda v. Tukko Narshinha Mutalik Desai and Others (1)
it was pointed out that in the section a distinction
has been made between claims and suits. The subclause we are concerned with is the fourth sub-clause
which relates inter alia to" claims against the Government relating to lands granted or held as Saranjam ".
The High Court has taken the view that no claim was
made against Government in the present case.
We
are unable to agree. In express terms, the plaintiffrespondent asked for a finding that the Government
Resolution dated December 17, 1941, was null and
void and did not affect the properties in suit because
the Government had either no authority to make
such an order or no occasion to do so.
He asked for
possession of those properties in spite of the orders of
Government. In these circumstances we must hold
that Government was more than a purely formal
party, and a claim was made against it in respect of
the orders contained in its Resolution dated December 17, 1941. Unless the Resolution is out of his way,
the plaintiff.respondent is not entitled to claim recovery of possession from the appellant with mesne
profits, etc. The Civil Court has no· jurisdiction to
determine any claim against the Government in the
niatter of the Resolution of December 17, 1941, relating to Saranjam lands, and the suit was barred under
s. 4 of the Bombay Revenue J urisdictiori Ac't,' 1876.' · ·
(I) l.L.R. [1937J Ilo~. 464.
804
SUPREME COURT REPORTS
[1960)
r96o
We accordingly allow this appeal, set aside the
Shrimant Dattajirao judgment and decree of the High Court dated N ovemBuhirojirao
ber 12 1952 and restore that of the learned Civil
Gho~~ade
Judge' dated' April 20, 1949. The appellant will be
Shrimant Vijaya- entitled to his_ costs throughout from the plaiutiffsinhrao
-
S. K, Das j.
April 29.
respondent.
Appeal allowed.
M/S. CHANDAJI KUBAJI & CO.
v.
THE STATE OF ANDHRA PRADESH.
(S. K. DAS, J. L. K~PUR and M. HIDAYATULLAH, JJ.)
R_eview-Grounds for-Whether allowable on party's own deliberate · negligence and intentional withholding of evidence-The
Madras General Sales Tax Act, I939 (Mad. Act IX of Ig39), s. I2A
(6) (a).
The appellant company was a dealer in ghee and groundnut oil et~. The Deputy Commercial Tax Officer assessed it to
sales tax for the year 1948-49 on a turnover of Rs. 28,69,151
and odd. Similarly for the year 1949-50 the appellant was
assessed to sales ·tax on a turnover of Rs. 28,72,083 and odd.
The appellant challenged these assessments and its appeal before
the Commercial Tax Officer having failed the two matters came
up in second appeal before the Sales Tax Appellate Tribunal. In
the Tribunal the appellant did not place any materials in support
of its contentions and the two appeals were disposed of by the
Tribunal holding that the appellant was correctly assessed to
sales tax. In respect of the aforesaid orders of the Tribunal the
appellant filed applications for review under s. l2A(6)(a) of the
Madras General Sales Tax Act, 1939 (Mad. Act IX of 1939), taking
the plea that in the first case the materials could not be placed
before the Tribunal as there was none to instruct the appellant's
advocate in English or Telegu, and in the second case the relevant correspondence was mixed up with other records. The Tribunal rejected the applications for review on the ground that a
failure to produce the necessary materials in support of a plea
taken before it, due either to gross negligence or deliberate withholding, did not come within the reason of s. 12A(6)(a) of the
Act. The High Court upheld the decision of the Tribunal. On
appeal by specialleave in one case and a certificate of the High
Court in the other :
Held, that the provision ins. l2A(6)(a) of the Madras General
Sales Tax Act, 1939 (Mad. Act IX of 1939), permits a review
when through some oversight, mistake or error the necessary facts,
basic or evidentiary, were not present before the Court when it
passed the order sought to be reviewed, but a party was not