VORA FIDAALI BADRUDDIN MITHAIBHARWALA Vs. STATE OF BOMBAY

JUDGEMENT

(1.) This Second Appeal raises a question of considerable importance regarding proprietary rights in lands granted by Rulers of Indian States before the merger of those States with the Dominion of India and the effect of the merger on such proprietary rights. Several arguments have been addressed to us relating to different aspects of this question and the arguments have been both able and ingenious. In order to understand and appreciate these arguments it is necessary to set out the facts giving rise to this appeal. The facts are not many and may be briefly stated as follows.

(2.) Prior to 15/08/1947 the Sant State was an independent native State under the paramountcy of the British Crown. On 15/08/1947 India obtained independence and became a Dominion by reason of the Indian Independence Act 1947 At the same time the sovereignty of the British Crown over the Indian States lapsed by reason of section 7 of that Act and as a result thereof the Sant State became a full sovereign State not owing allegiance to or under the suzerainty of any superior power. Immediately thereafter the Sant State acceded to the Dominion of India by executing an Instrument of Accession. The Dominion of India was empowered to accept such Instrument of Accession by a suitable amendment in section 6 of the Government of India Act 1935 We shall have occasion later in the course of this judgment to consider the effect of the Instrument of Accession on the sovereignty of the Sant State and how far the sovereignty of the Sant State was impaired as a result of the execution of the Instrument of Accession but suffice it to state at the present stage that Instrument of Accession was executed by the Sant State in the form which was settled as a result of discussions with the Rulers of Indian States and the Governor General of the Dominion of India signified his acceptance of the Instrument of Accession under section 6 of the Government of India Act 1935

(3.) There were certain Jagirdars in the Sant State to whom Jagirs had been given by the Ruler of the Sant State under various types of grants. It appears that the rights over forests in those villages had not been granted to the Jagirdars and the Jagirdars therefore complained to the Ruler of the Sant State about the same. The Ruler of the Sant State there upon issued an Order No. 371 dated 12/03/1948 granting full right and authority to the Jagirdars over the forests in their respective villages. It is not disputed that as a result of this Order the Jagirdars became full owners of the forests in their respective villages and became entitled to full right and authority in respect of the same. The Jagirdars could thereafter cut and fell trees in the forests in their respective villages and sell the timber of such trees or give contracts in respects of the same to other persons. Jagirdars Sardarsing Gajesing was one of such Jagirdars and by virtue on this order he became full owner of the Gotimda forest situate in the Sant State and became entitled to full right and authority in respect of the trees standing in the Gotimda forest.