UMAPRABHA THAMPURATTI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is a junior member, and the second respondent is the senior most male member of Chirakkal family which migrated from Malbar to the former Travancore State. The matter in dispute between them, relates to their rival claims to an annual grant of about 3900 and odd rupees, and the ultimate question is. whether this is a grant solely to the senior member of the family for the time being, or to the family as a whole in which each member is entitled to a per capita share. The second respondent petitioned the Government of Kerala on 4-2-1957, for registering him. as the holder of the grant, or Malikhana as it is called. On 20-3-1957, some of the junior members of the family including the petitioner, objected to such registry, and claimed that a per capita division of the Malikhana may be made amongst the members of the family. On 30-41958, Government passed an order, Ext. R 1, registering the second respondent as the Malikhana holder. Some of the junior 'members of the family, but not the petitioner, moved Government for a reconsideration of the above order and as a result, the operation of that order was stayed. Afterwards on 511-1958, Government vacated the stay order and pursuant to Ext. Rule 1, directed payment to be made to the second respondent by order, Ext. P-2. which is now sought to be quashed in these proceedings.

(2.) The question was agitated before me as to the nature of the grant. The learned counsel for the petitioner contended, that Malikhana grant is a grant to the family and is not a grant to the senior member of the family as pertaining to his "sthanam" and relied on the observations of Sundara Aiyar in his textbook on Malabar Law, Chapter XIX, page 250, that a grant was made to Chirakkal family. He also relied on the definition of the term "Malikhana" in Logan's Malabar Law, Volume, II, Appendix XIII, page cciv. Aitchison Treaties, Volume X. pages 14 and 111, contained references to grants to Chiefs and Rulers in Malabar and extracts of an agreement entered into by Chirakkal family with The East India Company. It is not possible to decide this issue on the materials before me and a writ cannot be issued treating the grant in question, as one which enures to the family as a whole. It is for the petitioner to establish her right by a fresh suit properly framed for the purpose.

(3.) It was then contended by the learned counsel, that the authority vested with jurisdiction under the Pensions Act, 1871, for registering the right renting to "Pensidns and . Grants ofl money on land revenue", Malikhana being such " grant, is the District Collector, or the Deputy Commissioner, or any other officer duly authorised, and that therefore Government had no jurisdiction to pass Ext. R-l or P-2 order, and on that ground Ext. P-2 is liable to be quashed. To this, objection was taken on behalf of the respond_ents, that the petitioner having submitted to the jurisdiction of Government, cannot now invoke Article 226 of the Constitution. It seems quite clear, by reason of the petition presented to Government on. 203-1957, not only by way of opposing the claim of the second respondent to registry as Malikhana-holder, but also claiming the per capita shares in the grant for herself and other members of the family, that the petitioner had submitted to the jurisdiction of Government, and had even invoked such jurisdiction in her favour. In Pannalal Binjraj v. Union of India, (S) AIR 1957 SC 397 at p. 412, the petitioner, who objected before the Supreme Court to the transfer of income-tax cases under Section 5 (7A) of the Income-tax Act. 1922 but had earlier submitted to the jurisdiction of the Income-tax Officer to whom other cases had been previously transferred, was he]d "disentitled to any relief at the hands of the court" under Article 32 of the Constitution. The principle was examined by Chagla, C.J. in Gandhinagar Motor Transport Society v. State of Bombay, AIR 1954 Bom 202, and was stated to be, that the High Court, in the exercise of the) special jurisdiction conferred on it by Articles 226 and 227 of the Constitution, can set its own limitations tq the exercise of such jurisdiction and regulate its procedure. In this process, the High Court is entitled to know, what the tribunal whose action is challenged, had to say about its jurisdiction, which could only be, if the objection to it was raised before it in other words, the tribunal must have had an opportunity to decide that it had no jurisdiction before the High Court is called upon to pronounce itself. In this respect, there may well be a difference between a suit, in which an objection pertaining to jurisdiction cuuld be raised for the first time in the highest court, and a proceeding under Article 226. The High Court may very well ask a petitioner, who invokes Article 226, in the words employed by Chagla, C.J.: