SOBHAG SINGH Vs. JAI SINGH

JUDGEMENT

(1.) This is an appeal brought with special leave against the judgment dated October 23, 1962 in Matmi Case No. 40 of 1961, of the file of the Board of Revenue Rajasthan.

(2.) Thakur Sabhal Singh - Hereinafter called Sabhal Singh - a jagirdar of Thikana Jhakora in Shekhawati area in the former Indian State of Jaipur applied on November 3,1933 to recognise Jai Singh --the firs' respondent in this appeal-as his adopted son for succession to the Thikana. On Ma, 23, 1936, the Ruler of Jaipur in Council ordered that he "saw no reason at the present moment to recognise the adoption advocated by" Sabhal Singh and that-the "alleged adoption of Jai Singh shall in no we, be deemed to be an adoption that will in an, sense bind the Darbar as regards the question of succession". On June 16, 1947, Sabhal Singh preferred another application to the Prime Minister of Jaipur for recognizing the adoption of Jai Singh. The application was sent to the Board of Revenue for enquiry and report under the Jaipur Matmi Rules, 1945. The Board of Revenue reported that in view of the Council Resolution dated May 23, 1936, the application was not maintainable since Sabhal Singh was living at the date of the application. But before this application could be finally disposed of by the Government of the State of Jaipur, Sabhal Singh died and the Prime Minister of Jaipur directed that necessary enquiries be held under the Matmi Rules, and for that purpose the record be sent to the Deputy Commissioner for taking action according to the Rules. The Nazim, Jhujhu held an enquiry and reported that adoption of Jai Singh by Sabhal Singh could not be recognised for under the Council Resolution dated May 23, 1936, the Government had refused to grant any recognition to the adoption. In the view of the Nazim, the adoption of Jai Singh by Sabhal Singh without the previous sanction of the Government was invalid, and evidence of "the factum of adoption" was inadmissible, but that did not debar Jai Singh from setting up a claim to succeed to the Thikana as a descendant in the senior line of the original grantee. An appeal against that order to the Deputy Commissioner was dismissed. A second appeal was then carried to the Board of Revenue. In the view of the Board, on the terms of the Council Resolution dated May 23, 1936, an enquiry into the factum of adoption could not be shut out. The Board accordingly called for a finding on the question, amongst others, whether Jai Singh was formally adopted by Sabhal Singh of Jhakora, and if so when The Nazim reported that the adoption of Jai Singh stood proved satisfactorily but the adoption could not be recognised because no previous sanction of the Ruler had been obtained. Since however, Jai Singh was the senior-most member of the senior line of descent from the original grantee, he was entitled to succeed to the grant under Rule 14 (l) of the Jaipur Matmi Rules, 1945, in preference to any other claimant. The papers were then submitted to the Collector, Jhunjunu. The Collector confirmed the finding of the Nazim that Jai Singh was adopted by Sabhal Singh, but in the absence of previous sanction of the Ruler the adoption could not be recognized. The Collector did not, however, agree with the Nazim that Jai Singh was the senior member of the senior line of the original grantee. He held that Sobhag Singh - appellant in this appeal - was the senior member of the senior line of the Original grantee and recommended that "the Matmi be granted in favour of Sobhag Singh". The Board of Revenue agreed with the Collector that Jai Singh was not the senior member of the senior fine of the original grantee of the grant in question and that the appellant Sobhag Singh had a preferential claim to the grant of Matmi. The Board without recording a finding on issue of adoption accepted the recommendation of the Collector.

(3.) Jai Singh then moved a petition under Article 226 of the Constitution before the High Court of Rajasthan. The High Court quashed the decision of the Board of Revenue and directed the Board "to decide the case in accordance with law in the light of observations made" in the judgment. In the opinion of the High Court, the Jagir devolved according to the personal law applicable to the last holder, and the personal law included the custom or usage relating to the particular Jagir; that the custom or usage applicable to the Jagir in question was that the adopted son must be a direct male lineal descendant of the original grantee, and that Nahar Singh was the original grantee of the Jagir in question and Jai Singh as a descendant of Nahar Singh was entitled to take the Jagir if it was proved that the adoption had been made in accordance with the personal law, that the Matmi Rules had no statutory force because it was not proved that assent of the Ruler of Jaipur had been given thereto, and that even assuming that the Rules were "existing Jagir law" they did not govern adoptions made before they were brought into force. An application for certificate to appeal to this Court against the judgment of the High Court under Article 133 of the Constitution was rejected on the ground that the dispute had not been finally decided and a number of issues remained to be decided.