Section 86 of the Civil Procedure Code, which confers immunity upon Rulers of Foreign States, only applies to suits and not to other proceedings, including probate proceedings.

Headnote:
CIVIL PROCEDURE CODE - SECTION 86 - IMMUNITY OF FOREIGN RULERS - APPLICABILITY TO PROBATE PROCEEDINGS - SECTION 141 - SCOPE - SUBSTANTIVE RIGHTS AND PROCEDURE - DISTINCTION.
Fact of the Case:

The appellant, the third son of the late Maharaja of Rajpipla, filed a petition for letters of administration to the state of the late Maharaja with the will annexed. The respondent, the eldest son of the late Maharaja, filed a caveat and affidavit in support of the caveat, and the petition was converted into a suit. The respondent raised a contention that the suit was not maintainable in the absence of a consent of the Central Government by reason of the provisions of Section 87-B of the Civil Procedure Code. The learned Judge upheld that contention and dismissed the suit.
Finding of the Court:

The Court held that Section 86 of the Civil Procedure Code, which confers immunity upon Rulers of Foreign States, only applies to suits and not to other proceedings, including probate proceedings. The Court further held that Section 141 of the Civil Procedure Code, which provides that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction, does not apply to substantive rights and disabilities, such as the immunity conferred by Section 86.
Issues: 1. Whether Section 86 of the Civil Procedure Code applies to probate proceedings? 2. Whether Section 141 of the Civil Procedure Code makes the provisions of Section 86 applicable to probate proceedings?
Ratio Decidendi: 1. Section 86 of the Civil Procedure Code only applies to suits, as defined in Section 26 of the Code, which are instituted by the filing of a plaint. 2. Probate proceedings are not suits as defined in Section 26 of the Code, as they are not instituted by the filing of a plaint. 3. Section 141 of the Civil Procedure Code only makes the procedural provisions of the Code applicable to proceedings other than suits, and does not apply to substantive rights and disabilities, such as the immunity conferred by Section 86.
Final Decision: The Court allowed the appeal, set aside the order of the learned Judge, and remanded the suit to the learned Judge for disposal according to law.

Judgment

1. A very interesting question as to the rights of an ex-ruler arises in this appeal. The appellant is the third son of the late Maharaja of Rajpipla and the respondent is his eldest son. The appellant filed a petition for letters of administration to the state of the late Maharaja of Rajpipla with the will annexed. Citations were served amongst others upon the respondent.

The respondent filed a caveat and filed an affidavit in support of that caveat and under the rules of the High Court, to which we shall presently refer, the petition was converted into a suit and a summons in the suit was served upon the respondent, and when the suit came on for hearing before Desai J., the respondent raised a contention that the suit was not maintainable in the absence of a consent of the Central Government by reason of the provisions of Section 87-B of the Civil Procedure Code. The learned Judge upheld that contention and dismissed the suit and the petitioner has come in appeal.

2. Now, Section 86 gave certain immunity to Rulers of a Foreign State and that immunity was that he could not be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in Writing by the Secretary to that Government. This section applied to Rulers of all Foreign States and before 1947 it also applied naturally to Rulers of Indian States which were looked upon as foreign States. After 1947 when the Indian States merged with the Union of India a special section was enacted to preserve certain rights which Rulers of Indian States had enjoyed, the section that was enacted was Section 87-B which was in the following terms:

"The provisions of Section 85 and of Sub-sections (1) and (3) of Section 86 shall apply in relation to the Rulers of any former Indian State as they apply in relation to the Ruler of a foreign State "

Therefore, the immunity which a Ruler of a Foreign State enjoyed under section 86 (1) is still enjoyed by a Ruler of a former Indian State, and it is not disputed that the respondent is the Ruler of a former. Indian State as defined in Section 87-B, and therefore what we have to consider is what is the immunity which the Civil Procedure Code confers upon the Ruler of a Foreign State under Section 86 (1).

3. It win be best to construe Section 86 (1) in the first instance, apart from authorities. It confers a substantive right upon the Ruler of a Foreign state it also imposes a disability upon a litigant who wants to sue the Ruler of a Foreign State. The Legislature has used the expression "may be sued" and it has further made that expression clear by stating "in any Court otherwise competent to try the suit." Therefore, it is clear that, apart from any other considerations, Section 86 (1) strictly construed only applies to a case where a suit is filed in a civil Court against the Ruler of a Foreign State.

It is true that the expression "may be sued" in its plain ordinary meaning may have wider connotation. It may mean to claim a civil right in a Court of law by any legal process by which that civil right can be established. But, in our opinion, this expression must be construed in the context of the Civil Procedure Code. It must be borne in mind that the Legislature has used this expression in a law which deals with procedure-and it has used that expression in a Code where the expression "suit" is used and understood in a strictly technical sense.

As far as the Civil Procedure Code is concerned, "a suit" means a legal proceeding instituted by means of the filing of a plaint as specifically provided for by Section 26 which deals with "institution of suits," and the Civil Procedure-Code draws a sharp distinction between "suits" and "legal proceedings". This is clear if one-looks at the provisions of Section 141. The Legislature, realising that in a civil Court not only suits would be filed but legal proceedings instituted, had to make provisions also with regard to legal proceedings, and theref

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