KUMAR SHRI BHOJRAJJI KARANSINHJI Vs. SAURASHTRA STATE

JUDGEMENT

(1.) WHEN Mr. Justice M.C. Shah and Mr. Justice Baxi of the Saurashtra High Court heard First Appeal No. 12 of 1952, certain important questions of law arose before them and they thought it necessary to refer those questions to a Full Bench. This matter has now come before us.

(2.) IN order to understand the question that we have to decide, a few facts must be stated. The plaintiff is the second son of the ex -Ruler of Sayla and on July 21, 1945, the Thakore Saheb of Sayla, the then Ruler, agreed to give to the plaintiff a sum of Rs. 30,000 in lieu of residence and this caine to be given under the following circumstances. The Thakore Saheb was the karta of an impartible estate and both under the custom and the rule of Hindu law the impartible estate would go to his eldest son, but the younger sons have a right of maintenance and residence. Certain provision was made with regard to the maintenance of the plaintiff, but with regard to the residence, that claim was commuted for the amount of Rs. 30,000. Pursuant to this arrangement two sums of Rs. 6,000 each were paid in 1946 and 1947. It may be stated that the order of the Thakore Saheb provided that the sum of Rs. 30,000 was to be paid by five instalments. On March 15, 1948, the United States of Kathiawar came into existence, the State of Sayla having merged in these United States on March 7, 1948. The United States of Kathiawar ultimately gave place to the State of Saurashtra and under the States Reorganization Act of 1956 the State of Saurashtra became a part of the Bombay State, and the plaintiff filed the suit against the State of Saurashtra on February 2, 1950, claiming the balance of Rs. 18,000. The trial Court, which gave its judgment on November 20, 1951, held in favour of the plaintiff on all points, but came to the conclusion, by reason of certain provisions of law to which we will presently make reference, that the suit had abated and dismissed the suit. An appeal was carried to the High Court of Saurashtra and a Division Bench of that High Court, as just pointed out, made this reference to the Full Bench on July 1, 1954.

(3.) THE first piece of legislation we have got to look at is Saurashtra Ordinance No. 72 of 1949 and Section 3 of that Ordinance provides: (1) Notwithstanding anything contained in any law or instrument for the time being in force, but subject to the provisions of Section 4, all suits or proceedings of any description, whether civil or political, which were, before the date of the coming into force of this Ordinance triable by Special Courts constituted or established by, or under the authority of, the Government of India, as then constituted, or the Crown Representative, or the Rulers of the Covenanting States, or the Talukdars or Estate -holders of Agreeing Talukas or Estates shall be tried and disposed of by civil Courts. This Ordinance, as the marginal note to Section 3 and the preamble makes it clear, relates to certain suits which were triable by Special Courts and these Special Courts are Courts set up in the Western India and Gujarat States region. There is no clear evidence on the record which goes to show that the suit of the plaintiff, with which we are dealing, was a suit which would have been cognizable by a Special Court if the merger of States had not taken place. But for the purpose of this argument we will assume that the Ordinance applies and that the suit which the plaintiff filed, if the State of Sayla had not joined the Saurashtra State, would have been tried by the Special Court mentioned in the Ordinance. Therefore, what Section 3(1) provides is that all these suits shall be tried and disposed of by civil Courts. In other words, the Special Courts are done away with and the jurisdiction of civil Courts is restored. But there is an exception to this provision and that exception is contained in Section 4, and we are concerned with Clause (2): Nothing contained in Section 3 shall apply to any suit against the Government in. respect of -(i) the enforcement of any right or remedy in respect of anything done or omitted to be done by or under the authority of any Ruler of any Covenanting State or any Talukdar or Estate -holder of any Agreeing Taluka or Estate before April 15, 1948. This Ordinance was followed by Act IV of 1951 and Sub -section (2) of Section 3 provides: (1) All suits of the nature described in Clause (i) of Section 4 of the Saurashtra Adjudication of (Special Courts) Suits Ordinance, 1949 (No. LXXII of 1949) (hereinafter referred to as the said Ordinance), pending in any Court or before any authority on the date of the coming into force of this Act shall abate.