Appeal against lower court dismissal of suit challenging validity of an adoption confirmed by the President. Court differs on bar of sections 23 and 119. Majority allows suit; dissent holds it barred.
Appeal dismissed; suit is not barred (majority view) or is barred (dissent view).
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
616 SUPREME COCRT REPORTS [1961]
THAKUR BRIJ RAJ SINGH AND A:\OTHEH
v.
THAKUR LAXMAN' SINGH A~D ANOTHER
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 .. . Thakur Bri; Ra1 Singh & Another · v. Thakur Lax"'an s~·ngh 6' Another
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
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.
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 mate 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]
Provided-
1 9 60 Provided- 1., h-B-.R Ist, Rule of Primogeniture.-that the descent shall .a "' "'1 "1 . II · 51,, 8i. &_Anoin,,._Illa casesbeto a single heir according to the ruleof ,.. 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 Regis- Jfi,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.
621
I S.C.R. SUPREME COURT REPORTS
' '
peached.-everything done, ordered or decided by the r96o officer under this Regulat10n, shall be deemed Central Governme. nt, State Government or a Revenue , to Singh 1.h a k ur & · R riJ Another .. R «J . 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,
[ 1961 J
622 SCPRE:ME COURT REPORTS
•
1 9~ 0 should tho question of adoption be decided ·against .. . him, wuuld have had t-0 fight the original dispute, for s;., Th•ku, h 6- /In; · Anotlw Ila; w I . h 11c a notwe un er s. . d 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
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1 S.C.R
SUPREME COURT REPORTS
opposite parties had opposed the request. It is, the.re- z960 fore, argued by the appellants that the confirmat10n .. . in having the case been granted, and none for t e there h Cis no dispute 1. v1·1C ourt to d 'd em remaining e. 5Thahku:B'A'rng ~ ,-.1 no . Rth•J er 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
~· Ii
f 1961]
SVPREME COURT REPORTS
624
1 9 60 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
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1 S.C.R. SUPREME COURT REPORTS
consideration for purposes of confirmation ; but the i96o validity of the adoption is still a matter, which the Th k 1J .. R . C1v1."lC ourt can cons1 "d er, t ere erng no h b · wor · d s c ear or 1 Singh a ur & "1 Allother •J 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 Government, 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 conolu- s. 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
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1 S.C.R. SUPREME COURT REPORTS
issue descended from him through males only whether r96o Istimra.rda.r his by birth or adoption or when . widow . , has power to after a. d the opt death an d a. d of opts an 5 T' ;.,,,, i1a k '" & 8 ti) _;,,,,..R 11 a; .,,. 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'
Provided-
1st, Rule of primogeniture-that the descent shall in a.II cases be to a. single heir according to the rule of primogeniture;
s. !-~. D.is. ].
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·
628 SUPREME COUHT REPORTS [ 1961]
196o (a) Proceedings under Regulation not to be impeach1. ha k ur R><J . R OJ . ed ,.,_ :-everything I (' done, ordered, S G or decided by R the 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
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l S.C.R. SUPREME COURT REPORTS
adoption made by a widow shall be valid, for the- pur- I960 pose of s. 23, when it is . confirn;ied Y. the Cen,tal 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_orderofconfirmation referred to inthethirdpro- -''"&" .; ,;',,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, and8.119 creates nobar with reference to that section. . There was some argument before us as to whether the 8 uit 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
. G31
I S.C.R. SUPRillME COURT REPOR'.11S
related to the istimrari estate and the properties there- I960 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.
THE SAMARTH TRANSPORT CO. (P) LTD.
v.
September 8.
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
3 issues framed by the court
Whether a suit challenging the validity of an adoption confirmed by the Central Government is barred by sections 23 and 119 of the Ajmer Land and Revenue Regulation, 1877.
Whether confirmation of an adoption by the Central Government ousts the jurisdiction of civil courts to examine the facts and acts preceding the confirmation proceedings.
Whether an order confirming adoption involves a determination of the widow's power to adopt and the factum of adoption under section 119.
Colour shows how this judgement treated each authority
No cases from judgments citedReferred
1 provisions across 1 enactments
Thakur BriJ Raj Singh
Thakur Laxman Singh
M. Hidayatullah
K. C. Das Gupta
J. C. Shah
N. Rajagopala Ayyangar
S. K. Das
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
