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SUPREME COURT OF INDIA
30th January 1952
M. PATANJALI SASTRI C.J.I., S.R. DAS AND BOSE JJ.
Bhujangrao Daulatrao - Appellant
Versus
Malojirao Daulatrao and others - Respondents.
Civil Appeal No. 111 of 1950.
Advocates appeared
Shri B. Somayya and Shri Sanjivarao Naidu, Senior Advocate (Shiv N. C. Shaw, Advocates, with them), instructed by Shri Ganpat Rai, Agent-for Appellant; Shri M. C. Setalvad, Attorney General for India; (Shri V. N. Lokur Advocate, with him), instructed by Shri M. S. K. Sastri, Agent - for Respondents Nos. 1 and 2. Shri M. C. Setalvad, Attorney General for India (Shri G. N. Joshi, Advocate with him), instructed by Shri P. A. Mehta, Agent - for Respondent No. 3.
I. Section 18( I) of the Act provides: .
"If any landlord either himself or through any person acting or purporting to
act on his behalf rc;ceives any fine, premium or other like sum of deposit or
any consideration, other than the standard rent in respect of the grant
renewal or continuance of a If:ase of any premises such landlord or person
shall be punished ".
2.From A.I.R. 1953 Bom. 347.
3.L. & N.E. Rly. Co •. v. Berriman, (1946) A.C. 278, 295 referred to. A common ancestor of the plaintiff and defendants I and 2 was given the Gajendragad estate as a Saranjam some time before the advent of the British. When the British came to India they decided, as far as possible, to continue such Saranjams, jagirs and inams as had been granted by the earlier rulers, and accordingly they framed Rules under Sch. B, R. 10 of tl::e Bombay Rent Free Estates Act (XI of 185?) to regulate the mod~ of recognition and the succession and condition of tenure to Saranjams. In compliance with this the common ancestor was recognised by the British Government as the Saranjamdar of the Gajindragad estate. The plaintiff and defendants I and 2 represented three different branches of the family, and in courst: of time, as result of partition, each branch was in tbe enjoyment of a separate share of the estate. On the death of plaintiffs father the Governor-General by a resolution dated 7•6-1932 ordered that the Saranjam should be formally resumed and regranted to the plaintiff and that it should be entered in his sole name in the accounts of the Collector. The defendants were evidently aggrieved by this and they filed a suit against the plaintiff and the Secretary of State for India in Council in respect of their rights. This suit was withdrawn to bring a fresh suit on the same cause of action against the plaintiff alone. On 25•3•36 Government, however, passed another Resolution in modification of the previous one directing that the estate held by the plaintiff and defendants I and 2 should be entered tn the Revenue Records as de facto shares in the estate held by them as representatives of three branches of the family. Thereupon the plaintiff brought a suit against defendants I and 2 and the State of Bombay on the ground that the resolution of 1936 was ultra vires and praying inter alia for a declaration that the defendants I and 2 had no right to go behind the order of the Government as per resolution of 1932 under which he was entitled to be recognised as the sole Saranjamdar and that the Government had no right to change the resolution of 1932 and at any rate during the lifetime of the plaintiff.
The first court dismissed the plaintiffs claim on the merits holding that Government had the right to amend its Resolution in the way it did, and the lower appellate Court also dismissed it inter alia on the ground th It the Bombay Revenue Jurisdiction Act, 1876, barred the jurisdiction of the suit.1 In second appeal the High Court only considered the question of jurisdiction and agreed with the lower appellate court on this point, and dismissed the appeal but it granted the plaintiff leave to appeal to the Supreme Court.
Held (dismissing the appeal) : (l) It was a suit against the "Crown" relating to lands held as Saranjam within the meaning of S. 4 (a) of the Bombay Revenue Jurisdiction Act, 1876, and therefore the jurisdiction of civil court was barred.
(2) It was not a suit in which the rights claimed against the other defendants could be divorced from the claim against Government and considered separately, and, therefore, the claim against the Government
1.Section 4 of the Bombay Revenue Jurisdiction Act. 1876 (Bombay Act X of 1876) provides:
"Subject to the exceptions hereinafter appearing, no civil court shall exercise jurisdiction as to
(a) ..•.•.•.•...•••••••.. claims against the Crown relating to lands held as
Saranjam. could not be dismissed and the plaintiff given relief against the other two defendants.l
(3) The court had no jurisdiction to decide whether the Government acted in excess of its powers.2
(4) Section 4 of the Bombay Revenue Jurisdiction Act is attracted even if only relief sought against Government is declaration.3 - Plea not mentioned in grounds of appeal or in additional grounds.
Held: Where a plea is not mentioned in grounds of appeal or in additional grounds, and claim is made for the first time in Supreme Court at the time of hearing, it is not entertainable.
Judgment
Bose, J. - The plaintiff appeals.
2. The suit relates to a Saranjam estate in the State of Bombay. The plaintiff claims to be the sole Saran Jamdar and seeks certain declarations and other reliefs appropriate to such a claim.
3. The first and second defendants are members of the plaintiff s family while the third defendant is the State of Bombay (Province of Bombay at the date of the suit).
4. The only question is whether the suit is barred by S. 4 (a) of Bombay Act X [10] of 1876 (Bombay Revenue Jurisdiction Act).
5. The following genealogical tree will show the relationship between the parties:
6. The facts are as follows: A common ancestor of the present parties was given the Gajendragad estate as a Saranjam some time before the advent of the British. When they arrived on the scene they decided, as far as possible, to continue such Saranjams, jagirs and inams as had been granted by the earlier rulers, and accordingly they framed Rules under Sch. B, R. 10 of Bombay Act XI (11) of 1852 (The Bombay Rent Free Estates Act of 1852) to regulate the mode of recognition and the succession and conditions of tenure to Saranjams, which are analogous to jaghgirs. In compliance with this, the common ancestor shown at the head of the genealogical tree set out above was recognised by the British Government as the Saranjamdar of the Gajendragad estate. He may for convenience be termed the British Grantee. The Register Ex. P-53 shows that the estate consisted of 26 villages. We do not know the date of the British recognition but the nature of the tenure is described as follows :
"Continuable to all male legitimate descendants of the holder at the time of British conquest viz. Bhujangrao Appasaheb, the first British Grantee, son of Bahirojirao Ghorapde."
7. On the death of the British Grantee (Bhujangrao Appasaheb) he was succeeded by his son Daulatrao I who died on 24-7-1864. This Daulatrao I left three sons Bhujangrao I., Yeshwantrao and Malojirao.
8. In the year 1866 Bhujangrao I and his brother Yeshwantrao alias Annasaheb sued Malojirao for possession of this Saranjam. A question of impartibility was raised but the Bombay High Court declared that the property in British India was partible. They further declared that Bhujangrao I was the head of the family and as such was entitled to a special assignment, which was not to exceed a quarter share, for the expenses and duties which might devolve on him by virtue of his position, and that after this had been set aside each of the three brothers was entitled to an equal one-third share in the landed property in India. This judgment is reported in Bhujangrao v. Malojirao, 5 Bom. H. C. R. (A. C.)161. The duties enumerated at p. 170 included the "keeping up of armed retainers for the fort of Gajendragad, and for the improvement of that village, which was the chief seat of this branch of the Ghorpade family, and also to enable him to distribute on ceremonial occasions the customary presents to the junior members of the family."
The judgment is dated 12-10-1868.
9. As a consequence a division of the property was effected. Malojirao separated himself from his brothers and was allotted seven villages. The other two brothers continued joint and took the remainder. But this was only with respect to property situate in British India. The parties also had property in the State of Kolhapur. That was left undivided.
10. Bhujangrao I died in 1881 and his younger brother Yeshwantrao (alias Annasaheb) claimed to succeed as the sole heir. The Political Department of the Government of India refused to recognise this claim and permitted Bhujangrao I s widow Krishnabai to adopt a boy from the family and recognised him as the heir in respect of that portion of the estate which lay within the Principality of Kolhapur. This was on 3-2-1882.
11. The Bombay Government followed a similar course regarding the property in British India. On 26-4-1882 they passed a Resolution embodying the following decision: (1) the adoption
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