judgement:
section 82 of 1960 and 148, 168 to 174 and 357 to 361 of 1961.
Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights.
WITH Civil Appeals Nos. 453 to 474 of 1961.
Appeals from the,, judgment and order dated May 25.
1959, of the Punjab High Court in Civil Writ Nos.
428, 303, 398, 402, 459 to 462, 421, 472, 473, 475, 490, 503, 509, 519, 520, 555, 590, 710 and 712 of 1958.
AND Civil Appeal No. 50 of 1962.
Appeal by special leave from the judgment and order date(] May 25, 1959, of the Punjab High Court in Civil Writ No. 347 of 1958.
Achhru Ram and Naunit Lal,for the petitioner (in Potn.
No. 82 of 60) and the appellant (in C. A. No. 50 of 62).
348 I. N. Shroff, for the petitioners (in Petn.
No. 148 of 61) and the appellants (in C. As.
457 to 474.
of 61).
Hardev Singh and Y. Kumar, for the petitioers (in Petns.
168 to 174 and 357 to 361 of 61).
C. K. Daphtary, Solicitor General of India, K. L. Gosain, B. R. L. Iyengar, Lakshmi Chand and I. N. Shroff, for the appellants (in C.As.
Nos 453 and 456 of 1961).
K. L. Gosain, B. R. L. Iyengar, Lakshmi Chand and I. N. Shroff, for the appellants I in C. A. No. 454 of 196 I).
B. R. L. Iyengar, Lakshmi, Chand and I.N.Shroff, for the appellants (in C. A. No. 455 of 1961).
S.M. Sikri, Advocate General, for the State of Punjab N. section Bindra and P. D. Menon, for the respondents (in all petitions and Civil Appeals).
M. C. Setalvad, Attorney General of India, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for Intervener No.1 (Satinder Singh).
K. L. Mehta, for Intervener No. 2 (Raghuvinder Singh and others).
February 20.
The Judgment of the Court was delivered by VENKATARAMA AIYAR, J.
The question that rises for our decision in the above writ petitions and appeals is whether certain jagirs in the State of Punjab known as the "Cis Sutlej" jagir are liable to be resumed under the provisions of the Punjab Resumption of Jagirs Act, 1957 (Punjab Act No. 39 of 1957), hereinafter referred to as "the Act".
This Act came into force on November 14, 1957, and the respondent State then proceeded to take action thereunder for resuming the jagirs.
A number of petitions were thereupon filed in the 349 High Court of Punjab under article 226 of the Constitution challenging the validity of the Act and of the proceedings taken by the respondent State thereunder on the ground, firstly, that the Act was ultra vires the powers of the State Legislature and that its provisions were unconstitutional and void ; and, secondly, that even if the Act was intra vires the jagirs held by the petitioners were not "jagirs" as defined in the Act, and were therefore not liable to be resumed under its provisons.
By their judgment dated May 25, 1959, the learned Judges held that the legislation was within the competence of the State, and that it did not contravence any of the constitutional provisions.
They further held that the jagirs held by the petitioners fell within the definition of "jagir" under the Act, and were liable to be resumed thereunder, and that accordingly no writ could be issued against the State for proceeding under the provisions of the Act.
By their Order dated January 27, 1960, the learned Judges granted leave to appeal to this Court under article 133 (1) (a), and pursuant to the same, Civil Appeals Nos. 453 to 474 of 1961 have been preferred to this Court.
Appeal No. 50 of 1962 by special leave is also directed against the judgment of the Punjab High Court in a Writ Petition tinder article 226.
Some of the jagirdars have also filed petitions in this Court under article 32) of the Constitution, impugning the Act and the action of the State thereunder on the same grounds as those raised in the appeals.
We have accordingly heard arguments of learned Counsel both in the writ petitions and in the appeals, and this Judgment will govern all of them.
Though a number of grounds have been taken in the pleadings, impugning the Act as ultra vires and its provisions as unconstitutional, in the argument before us, the only contention that was pressed was that the Cis Sutlej jagirs do not fall 350 within the definition of jagirs contained in the Act and that accordingly the State had no authority to resume them under the provisions of the Act.
And this contention is sought to be sustained on two ground: (i) that there was at no time any grant of the Cis Sutlej jagirs to their holders, much less any assignment of land revenue to them; and (ii) that even if there was such a grant, it was not one made by or on behalf of the State Government as required by section 2 (1).
It is argued that if either of these contentions succeeds, the jagirs in question would fall outside the purview of the Act, and the State would have no right under its provisions to resume them.
It will be convenient at this stage to set out the relevant provisions of the Act.
Section 2 (1) defines "jagir" as follows: " "jagir" means (a) any assignment of land revenue made by or on behalf of the State Government; or (b) any estate in land created or affirmed by or on behalf of the State Government carrying with it the right of collecting land revenue or receiving any portion of the land revenue; or (c)any grant of money made or continued by or on behalf of the State Government which purports to be or is expressed to be payable out of the land revenue; or (d) any grant of money including anything payable on the part of the State Government in respect of any right, privilege, perquisite or office; and includes any such grant or assignment existing in favour of Cis Sutlej jagirdars.
" 351 "Jagirdar" is defined in section 2 (2) as meaning the holder of a jagir.
Section 2 (5) defines State Government as follows: "State Government" (a) as respects any period before the 1st November 1956, shall mean: (i) the Government of the Patiala and East Punjab State Union or any of the Indian States which formed into the Patiala and East Punjab States Union on the 20th August, 1948 and (ii) the Government of the State of Punjab and all predecessor Governments thereof by whatever name called, the Governor General or the Governor General in Council, as the case may be, and the Sikh Rulers, but shall not include the Central Government as defined in the , after the period commencing on the 15th August, 1947.
(b) as respects any period after the 1st November, 1956 shall mean the Government of the State of Punjab.
" Section 3 enacts that "Notwithstanding anything to the contrary contained in any law or usage any grant settlement, sanad or other instrument, or any decree or order of any Court or authority, all jagirs shall, on and from the commencement of this Act, be extinguished and stand resumed in the name of the State Government.
It is common ground that the jagirs which are concerned in the present writ petitions and appeals consist of a right to the revenue payable, on lands, and not of any estate such as will fall under section 2 (1) (b) of the Act and that they must fall, if at all within section 2 (1) (a).
Therefore the discussion narrows 352 itself to the question whether there was, as required by section 2 (1) (a) of the Act, any assignment of the revenue of these jagirs and whether such assignment was by the State Government.
On the first question, as to whether there was assignment of land revenue, the contention of the petitioners and of the appellants and they will hereafter be referred to compendiously as jagirdars is that the so called jagirs are not jagirs as ordinarily understood, that they were not the subject matters of any grant by any State that they were in fact originally independent States held by rulers with sovereign rights, that in course of time the British Government imposed their sovereignty over them, and finally took over the administration of the State and paid the revenue collected therefrom to the rulers, not as person to whom the land revenue had been assigned, because there was no such assignment but as sovereigns of the States.
Therefore, it is contended, the co called jagirs are not within the definition of section 2 (1).
That brings us on to the question of the true status of the Cis Sutlej jagirdars.
The origin of these jagirs goes back to 1763.
The collapse of the Moghul Empire had created a void in the political ,stage of this country, and many were the powers which stepped in with the ambition of establish ing their sovereignty.
The British had established their rule and bad extended their dominion up to the Jumna.
The Sikhs had also developed during this period from being a purely religious sect into a military Organisation, and established several States beyond the Sutlej.
The tract of territory between the Jumna and the Sutlej was at this time under the administration of a weak Afghan Governor called Zain Khan.
The policy of the British during this period was to hold the Jumna as the frontier, and so they were indifferent to the fate of this Cis Sutlej area.
But the Sikh Chiefs 353 beyond the Sutlej could not resist the temptation of overthrowing the Afghan Governor, seizing his territory and establishing themselves as its rulers.
In 1763 the storm burst when a number of them crossed the Sutlej, overwhelmed the Afghan Governor and occupied the whole country upto Jumna.
"Tradition still describes", says Cunningham in his History of the Sikhs, P. I 10, I 'how the Sikhs dispersed as soon as the battle was won and how riding day and night each horseman would throw his be It and scabbard, his articles of dress and acooutrement, until he was almost naked into successive villages to mark them as his.
" when the conquest was over each Chief declared himself the ruler of the territory which he was able to occupy, and constituted himself its sovereign.
This state of affairs continued until 1806.
By this time, Ranjit Singh the ', 'Lion of the Punjab", had built up a powerful State across the Sutlej.
He had already subdued the petty rulers within that area and was turning his attention to the territories 'south of the Sutlej and had occupied some of them.
The Cis Sutlej rulers became alarmed about their future and appealed for protection to the British, who had, by this time, changed their policy of non intervention.
The appeal was welcome, and met with prompt response.
The result was that in 1809 the British entered into a treaty with Ranjit Singh whereby he surrendered his acquisitions south of Sutlej and agreed not to interfere with the Cis Sutlej States.
And this was followed by a proclamation by Colonel Ochterlony in May 1809 whereby the Cis Sutlej Chiefs were assured of their rights as sole owners of their possessions and exempted from payment of tribute, but were required to furnish supplies to the British Government and assist them against their enemies.
The British Government also promulgated a rule that whenever any of the rulers died without issues, his State would lapse to the British Government.
354 This was the position until 1846 when a drastic change in the situation took place.
In 1845, there was war between the British and the Sikhs, and in that war the Cis Sutlej rulers far from helping the British against the Trans Sutlej Sikhs, were either unsympathetically neutral or actively hostile to them, and that brought about a change in the policy of the British Government towards them.
The position is thus stated by Kensington in the Ambala Gazetteer at p. 26: "Having thus already lost the confidence of the Government the Sikh Chiefs in the Sutlej campaign forfieted all claim to consideration.
It was seen that the time had arrived for the introduction of sweeping measures of reform and the Government unhesitatingly resolved upon a reduction of their privileges.
Several important measures were at once adopted.
The police jurisdiction of most of the chiefs was abolished, the existing system being most unfavourable to the detection and punishment of crime.
All transit and customs duties were also abolished; and thirdly, a commutation was accepted for the personal service of the chief and his contingent.
The despatch of the Governor General embodying this resolution was dated November 7th, 1846.
" While the sweeping changes aforesaid were being introduced, the second Sikh War broke out and that ended in the annexation of the Punjab.
And with that the Deed for maintaining appearances and for recognizing the Cis Sutlej Chiefs as rulers came to an end.
The British Government then proceeded to act swiftly and firmly, and in June, 1849, they made a declaration that the Chiefs should "cease to hold sovereign powers, should lose all criminal, civil and fiscal jurisdiction, and should be considered as no more than ordinary subjects of the British Government in the possession of certain exceptional 355 privileges" (1).
Pursuant to this declaration, the Chiefs were stripped of all their governmental functions and the final denouement took place in 1852 when the British took over the collection of revenue for the jagir lands.
The rules for settlement of revenue were made by them, and the actual settlement and collection of revenue were made under their authority, and out of the collections the jagirdars were paid their share.
On these facts, the question is whether it can be said that their was an assignment of the land revenue to the jagirdars.
Express grants to them, there were none.
The point in debate before us is whether grants of the land revenue could be implied from the facts stated above.
A somewhat similar question came up for decision before this Court in Thakar Amar Singhji vs State of Rajasthan (2) with reference to a class of jagirdars in the State of Rajasthan known as Bhomicharas.
They were once the rulers of the territories which were claimed to be jagirs, and later on the State of Jodhpur imposed its suzerainty over them and exacted an annual payment called "Foujbal".
The Bhomioharas contended that they had come into possession of the territories as rulers and held them as rulers and not as jagirdars under grants made by any ruler.
In repelling this contention, this Court held that a grant may be implied as well as express, and that on the facts which were Proved, the Bhomicharas, though they held originally as rulers, must be held to have been reduced to the status of subjects, and that their position was that of jagirdars under an implied grant.
The position of the Cis Sutlej jagirdars bears a close analogy to that of the Bhomicharas in Thakur Amar Singji 's case (2).
They became rulers of the territories when they took possession of them by conquest in 1763.
The first inroads into their (1 ) Griffin 's "Rajas of that Punjab", P. 199.
(2) ; 356 sovereignty were made in 1809 when the British established their suzerainty over them and further declared that the territories of the rulers who died without heirs would escheat to them.
Then in 1846 the British Government deprived them of police jurisdiction, and the power to levy customs, and in 1849, of all their sovereign functions.
It is not disputed that as a result of all these acts they were reduced to the position of ordinary subjects, that indeed being the objective of the British Government as avowed in their declaration of June, 1849.
It is with reference to this background that we must examine the true character of the revenue settlement made in 1852.
If the jagirdars had sunk to the position of subjects on that date the payment of revenues to them by the British Government can only be on the basis of an implied grant to them.
Learned Counsel for the jagirdars however demur to this conclusion.
They contend that the position of the Cis Sutlej jagirdars differs fundamentally from that of the Bhomicharas in Thakur Amar Singhji 's case (1), that the latter were conquered by the rulers of Jodhpur and compelled to pay to them a tribute called "Foujbal", but that the Cis Sutlej Chiefs were never conquered by the British, and never paid any tribute to them, that they were receiving revenue from the lands as rulers before the British came on the scene, and that they continued to receive the same without a break even after the British had established themselves, and that there was nothing which the British Government did from which a resumption and a re grant could be inferred.
Under the circumstances, it is said, the, payment of land revenue to them must be related to their status as sovereigns, and if the British Government took upon themselves the work of settlement and collection of land revenue, it was (1) [ ; 357 oh their behalf and under their authority and under an implied arrangement with them.
The assumption underlying this argument is that, as the cis Sutlej Chiefs ;are not conqaered by the British, their status must necessarily be that of sovereigns, and that in consequence the payment of land revenue to them could not be as jagirdars holding under an implied grant from the Govern ment.
That, however, is not correct.
It is settled law that conquest is not the only mode by which one State can acquire sovereignty over the territories belonging to another State, and that the same result can be achieved in any other mode which has the effect of establishing its sovereignty.
Thus, discussing what is an , 'act of State", the Judicial Committee observed in Cook vs Sir James Gordon Sprigg (1) : "The taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired, was an act of State ' " To the same effect are the 'following observations of Lord Danedin in Vajesing Jaravarsingji vs Secretary of State for India in Council (2) : "When a territory is acquired by a sovereign State for the first time, that is an act of State.
It matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler." Laying down the law in similar terms, this Court observed in M/s. Dalmia Dadri Cement Co. Ltd.v.
The Commissioner of Income tax (3) : "The expression act of State ' is, it is scarcely necessary to say not limited to hostile (1) (2) (1923 24) L. R. 51 I. A. 357, (3) [1959] R. 729, 739.
358 action between rulers resulting in the occupa tion of territories.
It includes all acquisitions of torritory by a sovereign State for the first time, whether it be by conquest or cession.
Vide Vajesingji Joravar Singji V. Secretary of State and Thakur Amar Singji vs State of Rajasthan .
" And, more recently, this question has been considered by this Court in Promod Chandra Deb vs The State of Orissa (1), and the result was thus stated : " 'Act of State ' is the taking over of sovereign powers by a State in respect of territory which was not till then a part of its territory, either by conquest; treaty or cession, or otherwise.
" The fact, therefore, that the Cis Sutlej jagirdars were not conquered by the British does not conclude the question as to whether they arc to be regarded as sovereigns or not.
That must depend on who were in fact exercising sovereign powers over the territories in the States the Chiefs or the British.
If the latter, then it must be held that the sove reignty over the area had passed to them, otherwise than by conquest, and that the true status of the Chiefs was that of subjects.
Viewed in this light, the case does not present much of a problem.
It has been already seen that from 1809 onwards, the Chiefs had been gradually stripped of their powers as sovereigns and that the process of disintegration was completed in 1849.
It is indeed conceded on behalf of the jagirdars that after that date it was the British Government which was exercising sovereign powers over the territories and that the Chiefs had been rodaced to the status of its subjects.
But the contention that is urged is that even when every thing else had been (1) Writ Petitions Nos. 79 of 1957, 167 and 168 of 1958 and 4 of 1959 decided on November, 16, 1961.
359 lost, there was still one relie of sovereignty left with them and that was the right to receive the land revenue.
If this were the true position, the status of the jagirdars would be that of subjects of the British in respect of all matters except as to the right to receive revenue, in respect of which alone they would have to be regarded as sovereigns.
This is clearly untenable, because a person cannot be both a sovereign and a subject at the same time.
Dealing with this identical contention, this Court observed in Thakur Amar Singhji 's case (1) : "The status of a person must be either that of a sovereign or a subject.
There is no tertium quid.
The law does not recognise an intermediate status of a person being partly a sovereign and partly a subject, and when once it is admitted that the Bhomicharas had ack nowledged the sovereignty of Jodhpur their status can only be that of a subject.
A subject might occupy an exalted position and enjoy special privileges, but he is none the less a subject ; and even if the status of Bhomicharas might be considered superior to that of ordinary jagirdars, they were also subjects." (pp. 336 337) If the status of the Cis Sutlej jagirdars is in all other respects that of subjects, the right to receive the revenue collections must also be ascribed to their character as subjects, and that can only be under an implied grant.
But it is contended that the implication of a grant in favour of the jagirdars could not be made here as in the case of Bhomicharas in Thakur Amar Singhji 's case (1), because a proposal for resumption and re grant of the territories of the Cis Sutlej Chiefs was actually put forward in 1846 but was negatived.
Reference was made to the following (1) [19551 2 section C. R. S03.
360 account thereof given in J. M. Douie 's "Punjab Land Administration Manual", 1931, p. 45 para 102: "It was indeed proposed in 1846 after the first Sikh War to declare all the estates forfeit on account of the laches of their holders, and to re grant them under sanads from the British Government.
But Lord Hardinge deemed it impolitic to proclaim to all India the misconduct of the Cis Sutlej Chiefs and negatived proposal.
In a, sense then the Cis Sutlej jagirdars, great and small, are mediatized rulers, and little though they have as a body deserved at our hands, this fact should not be lost sight of in our dealings with them.
" The argument is that though a grant could be implied in certain circumstances where no express grant was forthcoming, that could not be done when a proposal for grant is shown to have been actively considered and rejected.
This contention sounds plausible but breaks down when the reason for the rejection of the proposal is examined.
That was, as stated in the despatch of Lord Hardinge dated November 17, 1846, that "a general measure of resumption would create alarm and must be preceded by a public declaration of the disloyalty of the largest portion of the Sikh protected States explaining the grounds of forfeiture," and this was considered inexpedient.
Consistently with this reason it is impossible to hold that the British Government, in declining to make a resumption and re grant, intended to continue the recognition of the Chiefs a,, sovereigns.
On the other hand, the true inference to be drawn is that the British wanted to give the chieftains only the status of jagirdars but for reasons of policy they sought to do it in such manner as to avoid publicity, and that is why the proposal for making resumption and regrant was not adopted.
In the very despatch of 361 Lord Hardinge dated November 17, 1346, wherein the proposal for resumption and re grant was dropped, it was stated that there was no need for it as the same ends could be obtained by adopting certain measures such as the taking over of the police administration and customs and the like.
The reason, therefore, for not making a resumption and an express grant is one which would support an inference of implied grant.
An argument is also sought to be built on the description given of the Cis Sutlej jagirdars as "mediatized rulers" in the extract from J. M. Douie 's "Punjab Land Administration Manual" already given, that their status is that of sovereigns.
This expression was originally used with reference to German Princes in Holy Roman Empire who, having been at one time vassals of the Emperor, were subsequently subjugated by other Princes who were also vassals of the Emperor.
The meaning of the word "mediatise" in modern usage is given in The Oxford English Dictionary, Vol.
VI, P. 292, as "annex (Principality) to another State, leaving former sovereign his title and (usually) more or less of Ilia rights of Government".
It might be 'correct to speak of the Chiefs as mediatized rulers in 1846, when, though deprived of their powers in matters of police and customs, they continued to exercise civil and fiscal powers.
But when they were divested in 1849 of all their Governmental powers they (, eased to be rulers, "mediatized" or otherwise, and when the revenue settlements were made in 1852, they had no vestige of sovereignty left in them, and had become ordinary subjects of the British with some privileges.
The true character of the revenue settlements made with the Cis Sutlej jagirdars is brought out correctly, in our opinion, in the following observations in Baden Powell 's "Land Systems of British India", Vol. 11 at p. 701: 362 "Under our Settlement arrangements, the jagirdar now receives the revenue, the original land holding communities or individuals being settled with and retaining full proprietary rights.
He in fact is a mere assignee of the revenue, taking.part of what otherwise would go to the State.
" Even more explicit is the statement of the position by Kensington in the Ambala Gazetteer, pp.27 28: "The final step necessitated by the march of events was taken in 1852 when the revenue settlement begun for British villages in 1847 was extended to the villages of the chiefs.
Thereafter the chiefs have ceased to retain any relies of their former power except that they are still permitted to collect their revenues direct from their villages, the cash assignment of revenue.
They have sunk to the position of jagirdare but as such retain a right to the revenue assigned to them in per petuity.
" It was argued by the learned Advocate General who appeared for the respondent that subsequent to 1852 there has been a course of legislation relating to the jagirs which proceeds on the basis that their holders were subjects.
The preamble to the Punjab Land Revenue Act, 1871 (Act 33 of 1871), under which land revenue was settled is as follows: "Whereas the Government of India is by law entitled to a proportion of the produce of the land of the Punjab to be from time to time fixed by itself and whereas it is expedient to consolidate and define the law relating to the settlement and collection thereof, and to the duties of the Revenue Officers in the Punjab.
" It is under this Act that the revenue settlements for the jagir lands are also made.
This shows that in exercising fiscal jurisdiction, the British Government 363 considered itself as acting in its sovereign capacity.
Then there is Punjab Descent of Jagirs Act,, 1900 (Punjab Act IV of 1900), which introduced in the , as. 8 to 8C enacting rules of descent "in respect of succession to any assignment of land revenue" and providing for the recognition of successors to the deceased jagirdars by the Provincial Government on certain conditions specified therein.
We have then the Punjab Jagire Act V of 1911 dealing with the same topic.
The preamble to the Act states that "it is expedient to consolidate the law governing the assignments of land revenue and other grants hitherto known as jagirs, and to make more precise provisions regarding the manner in which such assignments are to be made or continued in the future.
" Jagir is defined in section 2 in torms substantially the same as under the present Act.
This Act repeals as.
8 to 80 of the , which were inserted by the Punjab Descent of Jagirs Act IV of 1900, and reproduces them in as. 7 to 10.
Section 7(1)(b) provides for the acceptance by the jagirdars of the rules of descent framed by the Government by executing a written instrument, and it has been stated before us that the jagirdars have accepted the rules in the manner provided in the section.
By way of sample, the copy of the acceptance executed by the petitioner in Writ Petition No. 82 of 1960 has been marked as part of the record.
Oa these materials, the conclusion would appear to be irresistible that the right of the Jagirdars to raceive land revenue rests on implied grants by the British Government.
It must be mentioned that in Abdul Ghafoor Khan vs Amar arji Singh, Regular Second Appeal No. 561 of 1946 in the Punjab High Court there are ob.
servations of the learned Judges.
Mahajan and Teja Singh, JJ., that there was no gift of the jagir lands or assignment of the land revenue by the British Government to the Cis Sutlej jagirdars, and they are relied on as authority for the contention that 364 there was no grant to them express or implied.
But the point for decision in that case was whether these jagirdars could alienate their interests beyond their lifetime.
It was held that they could not and the reason therefor was thus stated: "After the annexation of the Punjab they (Cis Sutlej jagirdars) were deprived of vestiges of sovereignty that still remained in them and they were transformed and given the status of jagirdars, but their possessions, holding and dominions whether in land or other properties like forts and buildings were not in any way disturbed or taken away.
They held them in the same status and position as before.
" The dispute in that appeal related to properties of the kind mentioned above and not to land revenue, and we are unable to regard the observations relied on for the jagirdars as authority for the position that no grant in respect of the assignments of the land revenue could be implied in their favour.
In the resultwa must hold that the jagirs which are subject matter of these proceedings fall within section 2(1)(a) of the Act.
It is next contended that even if an assignment of land revenue could be.
implied in favour of the jagirdars, that could only be held to hive, been made by the British Government and not by the State Government as required by section 2(1)(a), and that, in consequence, the respondent had no right to resume the jagirs in question under the provisions of the Act.
Whateverforce there might have been in this contention, if I hequestion had to to be decided only on the.
terms of s.2(1)(a), we have in section 2(5) a definition or ' State Government which 365 is decisive of the question.
According to that definition, "State Government" includes "the Government of the State of Punjab, and all predecessor Gevernments thereof, by what ever name called, the Governor General or the Governor Generalin Council as the case may be.
" It is not disputed that these words are wide enough to include the British Government which made the grant, but it is contended that this definition was not in the Act as originally enacted and was inserted by the Punjab Resumption of Jagirs (Amendment) Act, 1959, and that the rights of the parties should be determined in accordance with the law as it stood prior to the amendment.
There is no force in this contention, because under section 1(2) of the Amendment Act, retrospective operation is given to it as from November 14, 1957.
But then it is urged that the amendment was not within the legislative competence of the Legislature of the State of Punjab and is null and void.
The grounds therefor are thus stated in Petition No. 82 of 1960 : "This is nothing but a colourable legislation.
The State legislature has no authority to convert Central Government into State Government and legislate on Central subject.
The so called jagir being not a grant by the State Government, the impugned Act has no application and the amended definition of State Government is a fraud on the Constitu tion." (para 17).
There is no substance in the contention that the Amendment Act is colourable and incompetent.
The subject matter of the legislation is resumption of jagirs.
Though the contention was raised.
in the petitions that this was not a topic within the competence of the State Legislature, as there was no such entry in List II to the Seventh Schedule,no 366 argument was advanced in support, of it.
And clearly it could not be, as legislation on resumption of jagirs in one relating to lands, and land revenue and would clearly fall under entries 18 and 45 of List II, which are as follows : Entry 18 , , 'Land, that is to say, rights in or over land, land tenure including the relation of landlord and tenant, and the collection of rents transfer and alienation of agricultural lands; land improvement and agri cultural loans; colonization.
" Entry 45 : "Land revenue., including the assessment and collection of revenue,the maintenance of lands records, survey for revenue purposes and records of rights, and alienation of revenue.
" If the principal legislation is intra vires, it is difficult to see how an amendment thereof with respect to matters properly pertaining to the subject matter covered by it could be ultra vires.
It is immaterial for the purpose of resumption, whether the lands sought to be resumed were granted by the State of Punjab as it is now constituted or by any Government which preceded it.
So long as the lands are within the, State of Punjab, the legislature has full competence to enact a law providing for their resumption under entries 18 and 45.
Indeed if the words "made by or on behalf of the State Government" in 3. 2 (1)(a) had been omitted in the, principal Act and jagir defined simply as "any assignment of land revenue" the legislation would have been intra vires, and in that case the State could have resumed the jagirs by whomsoever they might have been granted.
But it chose to add the words "made by or on behalf of the State Government", and that gave occasion for the contention that the legislation did not in fact reach jagirs granted by the British Government.
Then, with a view to clarify the position, 367 and set the controversy at rest,, the legislature intervened and enacted the Amendment Act of 1959, inserting the impugned definition of "State Government".
We are unable to see what the lack of vires is under which this amendment suffers.
We must reject this contention also.
This disposes of all the points raised on the merits in the Writ Petitions and Civil Appeals.
In Civil Appeal No. 453 of 1961 preferred by one of the jagirdars, Umrao Singh, his son Satinder Singh intervened, and he asks that suitable directions might be given for protecting his interests in.
the compensation amount which is payable to the appellant Under the Act.
He states that under the law the Cis Sutlej jagirdar is not an absolute owner of the jagir, that he has only a right to enjoy it without any power of alienation and that after his life time the next lineal descendant would take it free from all encumbrances created by the previous owner, that the rights of the jagirdar over the compensation amount due on resumption under the Act could only be the same as over the jagir, and that if that is paid to him, his reversionary rights would be Jeopardised and that therefore adequate provision should be made for protecting them.
Our attention has been invited to the decision of this Courtin Satinder Singh vs Umrao Singh(1), where compensation awarded on the acquisition of jagir lands was apportioned equally between the jagirdar and his son.
But there the lands had been acquired under the Land Acquisition Act, 1894, which contains provisions for deciding who is entitled to the compensation amount.
But here we are hearing an appeal against an order dismissing a Writ retition under article 226, challenging ire vires and applicability of the Punjab Resumption of Jagirs Act, 1957, and adjudication of rival claims to the compensation amount will be wholly foreign to its scope.
(1) A. I. R. 961) section C. 908 368 But it is pointed out for the intervener that on his application this Court has ordered stay of payment of a part of the compensation amount to the appellant pending the disposal of the, appeal, and that a similar direction might now be made in the Judgment, staying payment of a part of the amount for a specified period, so as to enable him to take steps to protect his rights.
But that was an interim order made pending the appeal, and no such order could be passed in the appeal unless it follows on a decision of the rights of the parties, which is, an already stated, outside the scope of the present proceedings, vide the state of Orissa vs Madan Gopal Rungta 0).
We do not therefore propose to say anything on the rights of the intervener or give any directions with reference to the payment of the compensation amount.
It is open to the intervener to take other and appropriate proceedings to vindicate his rights.
Before concluding, it has to be noted that in Writ Petition No. 148 of 1961 there, are as many as 72 Petitioners.
some of whom are stated not to belong to the category of Cis Sutlej jagirdars.
Their joinder is clearly improper. 'It is also said that three of them, Petitioners Nos. 66, 68 and 69, had filed Writ Petitions under article 226 of the Cons tituation in the Punjab High Court, raising the same contentions as in the present, that the said petitions had been dismissed on the merits, and no appeal had been preferred against the Orders of dismissal, and in consequence, the concerned petitioners cannot, on the decisions of this Court, maintain this petition.
But as we are dismissing these petitions on the merits, no further notice need be taken of these points.
In the result, the petitions are dismissed with costs, one hearing fee, and the appeals are dismissed with costs one set.
Petitions and appeals dismissed.
(1) [1952] S.C.R. 28.

summary:
The Punjab Resumption of jagirs Act, 1957, came into force on November 14, 1957, and the State of Punjab proceeded to take action thereunder for resuming the jagirs.
The petitioners who were holders of certain jagirs in that State known as the Cis Sutlej jagirs claimed that they could not be resumed under the provisions of the Act because they did not fall within the definition of jagir contained in section 2(1) of the Act on tile grounds that there was at no time any grant of the Cis Sutlej jagirs to their holders much less any assignment of land revenue to them, and that even if there was such a grant, it was not one made by or on behalf of the State Government as required by section 2(1) (a) of the Act.
The history or these jagirs showed that the jagirdars were originally rulers of the territories when they took possession of them by conquest in 1763, but in course of time after the British came on the scene, they were gradually stripped of all their powers as sovereigns, and in 1852 the British took over the collection of revenue of the jagir land , and out of the collections the jagirdars were paid their share.
Subsequent to 1852 there was a course of legislation relating to the jagirs.
The question was whether the assignment of land revenue to the Cis Sutlej jagirdars was made on the basis of an implied grant.
The petitioners case was that as the Cis Sutlej Chiefs were never conquered, the payment of land revenue to them must be related to their status as sovereigns and that the collection of the land revenue was made only under all im plied arrangement with them.
Held, that the status of the Cis Sutlej jagirdars was only that of subjects and that the payment of revenue to them by 347 the British Government was only on the basis of an implied grant to them.
Though the Cis Sutlej Chief were not conquered by the British, since the latter were in fact exercising sovereign powers over the area it must be held that sovereignty had passed to them otherwise than by conquest.
M/s. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Income tax, [1959] section C. R. 729, Thakur Amar Singji vs State of Rajasthan, and Vajesingji Jorawar Singji vs Secretary of State, [1924] L.R. 51 I.A. 357, relied on.
Held, further that the British Government which had made the grant was the "State Government" within the meaning of section 2(5) of the Punjab Resumption of jagirs Act 1957, and that the jagirs in question were within the definition of "jagir" in s.2(1) of the Act.
Held, also, that the Act was within the legislative com petence of the State of Punjab under entries 18 and 45 of List 11 of the Seventh Schedule to the Constitution of India.


judgement:
Appeal No. 130 of 61.
Appeal by special leave from the judgment and decree dated April 25, 1959 of the Madhya Pradesh High Court in First Appeal No. 139 of 1955.
M.C. Setalvad, Attorney General of India, section T. Desai, J. B. Dadachanji, 0.
C. Mathur and Ravinder Narain, for the appellants.
Sarjoo Prasad and G. C. Mathur, for respondents No. 1 and 2.
Ganpat Rai, for respondent No. 3. 1962.
February 23.
The Judgment of the Court was delivered by SHAH, J.
This appeal with special leave is against the decree of the Madhya Pradesh High Court confirming the decree of the 1st Additional District Judge, Jabalpur in Civil Suit No. 12 A of 1952.
The dispute between the parties arose in a suit for partition of joint family property.
The parties are Digambar Jains of the Porwal Sect and are residents of Jabalpur which at the material time 421 was in Madhya Pradesh.
The following pedigree explains the relationship between the parties Garibdas=Mst.
Khilonabai d. 24.7.34 (Def. 3) d.3.7.56 Gulzarilal d. 13.4.39 Munnalal Padamchand d.10.1.36 Ramchand (Def 1) (Def 2) Pyaribabu widow Bhuribai Chandrani bahu (Def. 4) (Def. 11) (Def. 8) Adupted son Rajkumar (Def. 12) adopted 26.7.52 Saheblal Ballu Nand Hiralal Ishwari Kumar Prasad (Plaintiff) (dead) (Def. 5) (Def. 6) (Def.7) Rajendra Kumar Abhay Kumar (Def 9) (Def. 10) Saheblal son of Munnalal filed Suit No. 12A of 1952 in the Court of the 1st Additional Subordinate Judge, Jabalpur on June 21, 1952, for a decree of partition and separate possession of his 1/12th share in the joint family property.
He claimed that in the property his father 's branch was entitled to have a half share and the remaining half was owned by 422 Ram Chand and his branch.
The Additional District Judge ordered that Khilonabai grandmother of Munnalal and Ram chand the wives of Munnalal and Ramchand and their sons and Bhuribai (widow of Padamchand) and Rajkumar who claimed to be a son of Padam Chand by adoption by Bhuribai on July 26, 1952, be impleaded as defendants to the suit.
At the trial of the suit the right of Saheblal to a share in the property was Dot questioned .
the dispute principally turned upon the claim made by Bhuribai and her adopted son Rajkumar to a share in the property.
Padamchand had died before the enactment of the Hindu Womens ' Rigbt to Property Act, 1937, and his widow could not claim by virtue of that Act a share in the property of the family.
But Bhuribai and Rajkumar pleaded that the parties were governed in the matter of adoption by the customary law prevalent amongst the Jains of Central India, Madhya Pradesh, Vindhya Pradesh.
North and Western India, and Rajkumar as a son adopted by Bhuribai to Padam Chand became a coparcener in the joint family and entitled to a share in the property and accretions thereto.
The validity of the adoption of Rajkumar was challenged on many grounds, one only of which is material in this appeal.
It was submitted by the contesting defendants and Bhuribai had no authority express or implied from her husband Padam Chand to adopt a son and that the adoption of Rajkumar as a son without such authority was invalid. '.the
Additional District Judge rejected this plea and ordered a preliminary decree for partition and declared that the share of the plaintiff was 1/24th, of Munnalal, his wife and 3 sons collectively was 5/24th, of Ramchand and his sons 1/4th, of Khilonabai 1/4th and the remaining 1/4th share belonged to Rajkumar.
423 Against them decree, Munnalal, Ramchand, Khilonabai, wife and sons of Munnalal and the wife and sons of Ramchand who were defendants 1 to 10 preferred an appeal to the High Court of Madhya Pradesh.
During the pendency of this appeal Khilonabai died on July 3, 1956 and Ramchand and Munnalal applied to be impleaded as her legal representatives in respect of the interest in the property awarded to Khilonabai by the preliminary decree.
By order dated December 12, 1957, the District Judge held that the interest of Khilonabai devolved upon the applicants by virtue of sections 15 and 16 of the which was brought into operation on June 14, 1956, and that the sons of Munnalal, Ramchand and Padam Chand could not take a share in Khilonabai 's interest.
Before the High Court two questions were canvassed: (1) as to the factum and validity of the adoption of Rajkumar, and (2) devolution of the share of Khilonabai declared by the preliminary decree on her death.
The High Court upheld the finding of the trial Court that Rajkumar was in fact adopted by Bhuribai as a son to her husband on July 26, 1952, and that amongst the Jains residing in the North West Province, Central India, Northern India and in Bombay a widow could adopt a son to her deceased husband without any express authority in that behalf In so holding the High Court relied upon the judgments of the Privy Council in Pemraj vs Mst.
Chand Kanwar and Mangibai Gulabchand vs Suganchand Baikamcand (1).
But the High Court diclined to accept the view of the trial Court that the right of Khilonabai declared by the preliminary decree devolved upon Munnalal and Ramchand alone.
In their view, Khilonabai 's interest under the decree being incohate was not "Possessed" by her within.
the meaning of section 14 (1) (1947) L.R. 74 I.A. 254.
(2) A.I.R. (1948) P.C. 177.
424 of the , and on her death it merged into the estate, The High Court observed : "The result is that the interest of Smt.
Khilonabai remained incohate and fluctuating so that after her death, the interest declared by the preliminary decree is available for partition as joint family property and consequently ss.15 and 16 of the are inapplicable to the interest.
As the property never became her absolute property by virtue of s.14 of the Act, the same remained joint family property.
" Accordingly the decree of the trial Court was modified and 1/3rd Share in the joint family property was awarded to Rajkumar, 1/3rd to the branch of Munnalal and the remaining 1/3rd to the branch.
of Ramchand and adjustments were made on that footing in the shares of the plaintiff and other members of the family.
In this appeal by defendant No. 1 (Munnalal) 2 (Ramchand) and 4 to 10, three contentions were raised : (1) in the absence of express authority from her husband, Bhuribai could not adopt a son, (2) that the 'interest of Khilonabai under the preliminary decree became her absolute property by virtue of s.14 of the and on her death it devolved upon her grandsons Munnalal and Ramchand defendants 1 and 2 and (3) the trial Court was in error in delegating to a Commissioner judicial function, such as, ascertainment of property to be divided and effecting parti tion.
The third question is easily answered.
The trial court appointed a commissioner to propose a partition of joint family property, and for that purpose the court authorised him to ascertain the property, the debts which the family owed and also the individual liability of the parties for the debts.
For deciding those questions the Commissioner was empowered to record statements of the parties, frame 425 issues and to record evidence as might be necessary.
The commissioner was also directed to submit his proposals relating to the right of Bhuribai to be maintained out of the joint family property.
This order, it appears, was passed with the consent of all the parties.
It is true that the decree drawn up by the trial Court is not strictly in accordance with the directions given in the judgment.
But it is manifest that the trial Judge only directed the Commissioner to submit his proposals for partition of the property, and for that purpose authorised him to ascertain the property which was available for partition and to ascertain the liability of the joint family.
By so authorising the Commissioner, the trial Court did not abdicate its functions to the comissioner : the commissioner was merely called upon to make proposals for partition, on which the parties would be heard, and the Court would adjudicate upon such proposals in the light of the decree, and the contentions of the parties.
The proposals of the commissioner cannot from their very nature be binding upon the parties nor the reasons in support thereof.
The order it may be, remembered was made with the consent of the parties and no objection to the order was, it appears, pressed before the High Court.
We do not think that any case is made out for modifying that part of the order.
The parties to this dispute are Digamber Jains of the Porwal sect and are resident of Jabalpur.
Jains have generally been regarded as heterodox Hindus and in the absence of special custom they are governed by the rules applicable to Hindus.
As observed by the Privy Council in Sheokuarbai vs Jeoraff.(1) The Jains are of Hindu origin; they are Hindu dissenters, and although as was pointed out by Mr. Mayne in paragraph 46 of his Hindu Law and Usages "Generally adhering to ordinary Hindu law, that is, the law of the three (1) 426 superior castes, they recognise, no divine authority in the Vedas and do not practise the Shradhs, or ceremony for the dead." "The due performance of the Shradhs, or religious ceremonies for the dead, is at the base of the religious theory of adoption, but the Jains; have so generally adopted the Hindu law that the Hindu rules of adoption are applied to them in the absence of some contrary usage x x x." But amongst the Jainsa custom enabling a widow to adopt a son to her husband without express authority has been reco.
gnised by judicial decisions spread over a period longer than a century.
In Pemraj vs Musammad Chand Kanwar(1), the Judicial Committee of the Privy Council after a review of the case law observed : " x x x x, in many other parts of India" (parts other than the Provinces of Madras and the Punjab) "it has now been established by decisions based on evidence from widely separated districts and from different sects that the Jains observe the custom by which a widow may adopt to her husband without his authority.
This custom is based on religious tenants common to all sects of Jains, and particularly their disbelief of the doctrine that the spiritual welfare of the deceased husband may be affected by the adoption, and though it cannot be shown that in any of the decided cases the parties were of the Khandelwal sect, yet in none of the cases has a distinction been drawn between one sect and another.
It is now in their Lordship,% ' opinion no longer premature to hold that the custom prevails generally among all Jains except in those areas in which there are special reasons, not operative in the rest of India, which explains why the custom has not established itself.
Mayne, in his treaties on Hindu Law and Usage, at page 209, has lent the weight of his authority to the proposition that among the Jains, except in the Madras Presidency a sonless widow can adopt a son to her (1) (1947) L.K. 74 I.A. 254.
427 husband without his authority or the consent of his sapindas".
This view was reiterated by the Privy Council in a case reported in Mangibai Gulabchand vs
Suganchand Bhikamchand (1).
The Attorney General for the appellants, however, contends that there is no evidence of a custom authorising the widow of a Porwal Digamber Jain residing in Jabalpur to adopt a son to her husband without express authority.
Counsel sub mitted that the observations in the two cases relating to the custom of adoption must be restricted to the sects to which the parties to these cases belonged, and in so far as they purport to extend the custom to all Jain residents in India outside Madras and the Punjab they are mere dicta and not binding upon this Court.
In Pemraj 's case the parties belonged to the Khandelwal sect domiciled and resident in Ajmer and in Mangibai 's case the parties were Marwari Jains of the Vis Oswal sect who having migrated from Jodhpur had settled down in the Thana District of the Bombay Province, but the opinion of the Judicial Committee expressly proceeded upon a well recognised custom applicable to all Jains in the territory of India (excepting Madras and the Punjab) and not upon proof of a restricted custom governing the sects of Jains to which the parties belonged.
Undoubtedly, as observed by this Court in Saraswathi ' Ammal vs Jagadamhal (2) in dealing with the quantum of proof required to prove a family or loca I custom, " it is incumbent on a party getting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule of decision but only any customs applicable to the parties concerned that can be the rule of decision in particular case.
x x x (1).
A.I.R. (1948) P.C. 177.
(2) ; 428 Theory and custom are antitheses, custom cannot be a matter mere of theory but must always be a matter of fact and one custom cannot be deducted from another.
A community living in one particular district may have evolved a particular custom but from that it does not follow that the community living in another district is necessarily following the same custom.
" But the application of the custom to the parties to this appeal does not appear to proceed upon analogies or deductions.
It governs the parties, because the custom has become a part of the law applicable to Jains in India (except in Madras and the Punjab) by a long and uninterrupted course of acceptance.
A review of the cases decided by different Courts clearlyshows that the custom is generally applicable to Jains all over India, except the Jain domiciled in Madras and the Punjab.
The earliest case of which a report is available is Maharaja Govindnath Bay vs Ray Chand (1) decided by the Saddar Court Calcutta in 1933. 'in that case the validity of an adoption by a Jain 'Widow of a son without express authority from her husband was questioned.
The Court after consulting the Pandits held that by Jain law a sonless widow could adopt a son just as her husband for the performance of religious rites and that the section of the vitis or priests to the adoption is not essential.
In Bhagwandas Tejmal V. Rajmal alias Hiralal Lachmidas(2) the Bombay High Court opined that the widow of a Jain was a delegate either by express or implied authority to adopt a son, but she could not delegate to another person that authority to adopt a son to her husband after her death.
In Sheo Singh Rai vs Mussumut Dakho and Moorari Lal, (3) decided in 1878, the Privy 'Council affirmed the view of the North West Provinces High Court that a sonless widow of a Jain had the right of adoption without the permission of her husband or the consent (1) (2) (1873) 10 Bom.
H.C. Rep. 241.
(3) (1878) L.R. 5 I.& 87 429 of his heirs.
In that case before the Subordinate Judge and before the High Court evidence was recorded of the custom applicable to Jains generally, in different place such as Delhi, Jaipur, Mathura, Banaras and it was held that ' the custom was established by evidence.
The parties to the suit were Agarwal Jains of Meerut District, but decision of the Board proceeded upon a custom found on evidence to be common to all Jains.
In Lakhmi Chand vs Catto Bai.
(1) decided in 1886, again the power of a Jain widow to adopt a son to her deceased husband was held proved.
In Manik Chand Golecha vs Jagat Settani, (2) decided in 1889, the High Court of Bengal upheld a custom in respect of adoption by a widow of an.
Oswal Jain.
The decision of the Court did not proceed upon any custom peculiar to the Oswal sect.
In Harnabh Pershad alias Rajajee vs Mangil Das(3) decided in 1899, it was held upon the evidence consisting partly of judicial decisions and partly of oral evidence that the custom that a sonless Jain widow was competent to adopt a son to her husband without his permission or the consent of his kinsmen, was sufficiently established and that in this respect there was no material difference in the custom of the Aggarwal, Choreewal (Porwal), Khandwal and Oswal sects of the Jaim ; and that there was nothing to differentiate the Jains at Arrab from the Jains elsewhere.
The judgment of the case proceeded upon an elaborate examination of numerous instances in which the custom was held established.
In Manohar Lal vs Banarsi Das(4) and in Asharfi Kumar vs Rupchand(5) a similar custom was hold established.
In the latter case a large number of witnesses were examined at different places and on a review of the decisions and the evidence the Court held the custom proved.
The judgment of the Allahabad (1) All. 319.
(2) Cal.
5 1 8.
(3) Cal.
(4) (1907) 1.L.R. 29 All.
(5) All.197 430 High Court in Asharfi 's case was affirmed by the Privy Council in RupChand vs Jambu Prasad.
(1) It may be stated that the right of a Jain widow to adopt without authority of her husband was not questioned before the Privy Council.
In Jiwraj vs Mt. Sheokuwarbai the Court of the Judicial Commissioner ' Nagpur held that the permission of the husband was not necessary in the case of a Jain widow to adopt a son.
This case was also carried to the Privy Council and the judgment was affirmed in Sheokuarbat vs Jeoraj (3).
In Banarsi Das vs Samat Prasad (4) a similar custom was held established.
The decisions in all these cases proceeded not upon any custom peculiar to the locali ty, or to the sect of Jains to which they belonged, but upon the view that being Jains, they were governed by the custom which had by long acceptance become part of the law applicable to them.
It is well settled that where a custom is repeatedly brought to the notice of the Courts of a country, the courts may hold that custom introduced into the law without the necessity of proof in each.
individual case.
(Rama Rao vs Raja of Pittapur) (5).
The plea about the invalidity of the adoption of Rajkumar by Bburibai must therefore fail.
Khilonabai died after the was brought into operation on June 14, 1956.
This Act by section 2(1)(b) applies to Hindus and also to persons who are Jains by religion.
The preliminary decree was passed on July 29, 1955, and thereby Khilonabai was declared entitled to a fourth share in the property of the family.
Section 14 of the provides: "14(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be (1) All. 217.
(3) (2) A.I.R. (1920) Nag. 162.
(4) All.
1019, (5) (1918) L.R. 4 5 1.A. 148.
431 held by her as full owner thereof and not as a limited owner.
EXPLANATION.
In this sub section ,property" includes both movable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also by such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
" Section 15 provides: "115 (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16, (a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly ' upon the mother and father; 432 (d) fourthly, upon the heirs of the father; (e) lastly, upon, the heirs of the mother; (2) Notwithstanding anything contained in sub section (1), (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub section (1) in the order specified therein but upon the heirs of the father: and (b) any property inherited by a female Hindu from her husband or from her father in law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub section (1) in the order specified therein, but upon the heirs of the husband." Section 16 which prescribes the order of succession and manner of distribution among, the heirs of a Hindu female provides by Rule ,,Among the heirs specified in sub section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously." 433 Counsel for Rajkumar concedes, and in our judgment he is right in so conceding that if the share declared by the preliminary decree in favour of Khilonabai is property possessed by her at the date of her death, it should devolve upon her grandsons Munnalal and Ramchand, to the exclusion of Rajkumar adopted son of Padam Chand.
This Court in Gumalapara Taggina Matada Kotturuswami vs Setra Veeravva (1) held that "The word "possessed" in section 14 is used in a broad sense and in the context means the state of owning or having in one 's power".
The preliminary decree declared that Khilonabai was entitled to a share in the family 'estate and the estate being with the family of which she was a member and in joint enjoyment, would be possessed by her.
But counsel for Rajkumar submitted that under the preliminary decree passed in the suit for partition the interest of Khilonabai in the estate was merely inchoate, for she had a mere right to be maintained out of the estate and that her right continued to retain that character till actual division was made and the share declared by the preliminary decree was separated to her: on her death before actual division the inchoate interest again reverted to the estate out of which it was carved.
Counsel relied upon the judgment of the judicial committee in Pratpamull Agarwalla vs Dhanabati Bibi (2) in support of his plea that under the Mitakshara law, when the family estate is divided a wife or mother is entitled to a share. but is not recognised as the owner of such share until the division of the, property is actually made,as she has no preexisting right in the estate except a right of maintenance.
Counsel submitted that this rule of Hindu law was not affected by anything contained in section 14 of the .
By section 14 (1) the Legislature sought to convert the interest of a Hindu female which under the (1) [1959] 1 Supp.
S.C.R. 968.
(2) (1935) L.R. 63 I.A 33. 434 Sastric Hindu law would have been regarded as a limited interest into an absolute interest and by the explanation thereto gave to the expression property" the widest connotation.
The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever.
By section 14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate.
Pratap mull 's case undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognized as owner, but that rule cannot in our judgment apply after the enactment of the .
The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession.
The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate.
She it; under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death.
It is true that under the Sastric Hindu, law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance.
She was not entitled to claim partition.
But the Legislature by enacting the Hindu Women 's ' Right to Property Act, 1937 made a significant departure in that branch of the law: the Act gave a Hindu widow the same interest in the property 435 which her husband had at the time of his death, and if the estate was partitioned she became owner in severally of her share, subject of course, to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil.
It cannot be amused having regard to this development that in enacting 8. 14 of the , the Legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmulls case.
Section 4 of the Act gives an overriding effect to the provisions of the Act.
It enacts"Save as otherwise expressly provided in this Act, (a) any text rule or interpretation of Hindi law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have ;effect with respect to 'any matter for which provision is made in this Act : (b) x x x x X" Manifestly, the legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act.
Normally a rights declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which section 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is not property within the meaning of section 14.
In the light of the scheme of the Act and its avowed purpose it. would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property.
, If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded 436 as property.
The High Court was therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Raj Kumar that it was not property within the meaning of section 14 of the Act.
On that view of the case, by virtue of so. 15 and 16 of the Act, the interest declared in favour of Khilonabai devolved upon her sons Munnalal and Ramohand to the exclusion of her grandson Rajkumar.
The decree passed by the High Court is therefore modified in this respect and the decree passed by the trial Court restored.
Having regard to the partial success of the parties, there will be no order as to costs in this appeal and in the High Court.

dataset_name: IN-Abs

summary:
G, a Digamber Jain of the, Porwal sect, died in 1934 leaving behind his widow Smt.
K, his son G who died in 1939 and three grandsons M, P and R.
In 1952 M 's son S filed a suit for partition of the joint family properties.
Rajkumar, claiming to be a son of P adopted by his widow, claimed a 1/4th share in the joint family property.
The adoption was challenged on the ground that no express authority had been given by P to his widow to adopt.
The trial court held that no express authority was required by a sinless Jain widow to adopt a son and that the adoption was duly and properly made.
Accordingly, a preliminary decree declaring the shares of Smt.
K, the branch of M, the branch of R and of Rajkumar to be 1/4th each was passed.
M and others pre ferred an appeal to the High Court mainly against the findings on the question of adoption.
During the pendency of the appeal, the , came into force.
Shortly thereafter Smt.
K died.
The High Court upheld '.he decision of the trial court on the question of the adoption of Rajkumar.
With respect to the share of Smt.
K the High Court held that her interest declared by the preliminary decree was inchoate, that she never became "possessed", 419 of any share within the meaning of s 14 of the Act and that it remained joint family property which became divisible amongst the parties proportionately to their shares.
The appellants contended that the adoption of Rajkumar was invalid as no custom applicable to the Porwal sect of the jains had been established empowering a widow to adopt without the authority of her husband and that the 1/4th share of Smt.
K declared by the preliminary decree had become her absolute property by virtue of section 14 of the Act and upon her death it descended to her grandsons M and R to the exclusion of other parties.
Held, that the adoption of Rajkumar was valid.
A sonless Jain widow could adopt a son without the express authority of her husband.
Such a custom among the Jains not domiciled in the States of Madras and the Punjab) has been recognised by judicial decisions spread over a period longer than a century.
Though none of these decisions related to the Porwal sect of Jabalpur to which the parties belonged.
They laid down a general custom of the jains which were applicable to the parties.
The decisions proceeded not upon.
any custom peculiar to any locality or to any sect of the jains but.
upon general custom which had by long acceptance become part of the law applicable to them.
Where a custom is repeatedly brought to the notice of the Courts, the courts may held that custom introduced into the law without the necessity of proof in each individual case.
Pemraj vs Mst.
Chand Kanwar, (1947) L. R. 74 1.
A. 224 and Mangibai Gulabchand vs Suganchand Bhikamchand, A.I.R. (1948) P. C. 177, relied on.
Sheokuarbai vs
Jeoraj, , Saraswathi Ammal vs ,Jagadambal, , Maharajah Govind nath Ray vs Gulal Chand, (1833) 5 Sel.
Rep. 276, Bhagwandas Tejmal vs Rajmal Alias Hiralal Lachmindas, (1873) 10 Bom.
H.C. Rep. 241, Sheo Singh Rai vs Mst.
Dakho and Morari Lal (1878) L.R. 5 1.
A. 87, Lakhmi Chand vs Gatto Bai, All. 319, Manik Cha nd Golecha vs Jagit Settani, Cal.
518, Harar nabh Parshad alias Rajajee vs Mangil Das, Cal. 379, ManoharLal vs Banarsi Das All.
495, Asharfi Kumar vs Rupchand, All. 197, Rup Chand vs Jambu, Prasad All, 2 47, Jiwaraj vs Mst.
Sheokuwarbai, A.I.R. (1920) Nag. 162, Banarsi Das vs Sumat Prasad, All.
1019 and Rama Rao vs Raja of Pittapur, (1918) L. R. 43 1.
A. 148, referred to.
Held, further that the 1/4th share of Smt.
K declared by the preliminury decree was "possessed" by her and on her 420 death it descended to her grandsons in accordance with provisions of sections 15 and 16 of the Act.
The word "possessed" in section 14 was used in a broad sense meaning the state of owing or having in one 's power.
The rule laid down by the Privy Council that till actual division of the share declared in her favour by a preliminary decree for partition of the,joint family prop" a Hindu wife or mother was not recognised as owner of that share cannot apply after the enactment of the .
Section 4 of the Act made it clear that the Legislature intended to supersede the rules of Hindu law on all rs in respect of which there was an express provision made in the Act.
Gumalapura Taggina Matada Kotturuswami vs Setra Veerayya, (1959) 1 Supp.
S.C.R. 968 and Pratapmull Agarwalla vs Dhanabati Bibi, (1935) L.R. 63 I.A. 33, referred to.