INDRAJITSINGHJI VIJAYSINGHJI Vs. RAJENDRASINGHJI VIJAYSINGHJI

JUDGEMENT

(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, and the section that was enacted was Section 87-B which was in the following terms:

(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 and 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 therefore it enacted Section 141 which is to the following effect: