Darbar Shri Vira Vala Surag Vala,Vadia
Vs. The State of Saurashtra (Now Bombay)  INSC 74 (14 April 1960)
IMAM, SYED JAFFER DAS, S.K.
CITATION: 1967 AIR 346 1960 SCR (3) 521
CITATOR INFO :
R 1981 SC1829 (116)
Grant by Ruler to younger son as Bhayat-Son
becoming Ruler- Whether grant resumable-" Bhayat ", Meaning of.
In the, Indian State of Vadia succession was
governed by primogeniture. The Ruler in 1943 granted to his younger son, the
petitioner, a village in the State in perpetuity and in heredity for enjoyment
as 'Kapal-Giras' as ' Bhayat'.
In 1947 the State of Vadia acceded to the
Dominion of India and by subsequent constitutional developments it became
merged in the State of Saurashtra. After the coming into force of the
Constitution the elder son of the Ruler and then the Ruler died, and the
petitioner was recognised as the Ruler. Thereupon the State of Saurashtra issued a notification resuming the grant as it was deemed to have lapsed and
reverted to the former Vadia State. The petitioner contended that the grant was
absolute and unconditional for 522 permanent enjoyment from generation to
generation and the State could not resume it:
Held, that the grant lapsed on the petitioner
becoming the Ruler and the State could resume it. The grant was to the
petitioner as a " Bhayat ", which word meant a cadet or the
descendant of a younger branch of a Talukdar's family where the estate followed
the rule of primogeniture; as such if enured for his benefit as long as he
remained a cadet. But when the grantee became the Ruler and ceased to be a
" Bhayat ", the grant came to an end.
ORIGINAL JURISDICTION: Petition No. 62 of
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
N.H. Hingorani and A. N. Sinha, for the
R. Ganapathy Iyer and T. M. Sen, for the
1960. April 14. The Judgment of the Court was
delivered by KAPUR, J.-Prior to the integration of the Indian States with the
Union of India on the promulgation of the Constitution of India there was in
Kathiawad a State of the name of Vadia, succession to the Rulership of which
was by primogeniture. Its Ruler then was Darbar Saheb Shri Surag Vala Bavavala.
He had two sons Kumar Shri Krishan Kumar and the petitioner Kumar Shri Vira
Vala Surag Vala. Kumar Shri Krishan Kumar being the elder son was the
heir-apparent. On July 5, 1943, the Ruler Darbar Saheb Shri Surag Vala executed
two documents in favour of the petitioner granting him in perpetuity and in
heredity a village called ' Mota Pithadia' in the State for enjoyment as '
Kapal-Giras' as ' Bhayat'. The word ' Bhayat' means a cadet or the descendant
of a younger branch of a Talukdar's family where the State
followstheruloofprimogeniture. 'Kapal-Giras'means a grant in appanage as a
birthright to a share in the patrimony.
Sometime in or about August, 1947,the State
of Vadia acceded to the Dominion of India on the terms contained in an
instrument of accession then executed. Thereafter, on January 23, 1948, various
States in the Kathiawad area entered into a covenant forming the United State
of Kathiawad, also called the United State of Saurashtra. In terms of this
covenant the 523 assets of each State excepting the private properties of the
Ruler, became the assets of the United State. The covenant also provided that
the Ruler of each State shall be entitled to receive a certain sum as his privy
purse from the revenues of the United State, to retain ownership of all private
properties to be determined in the manner provided and to all personal
privileges, dignities and titles. The Government of India concurred in the
covenant and guaranteed all its provisions. The State of Vadia was a party to
this covenant and its assets therefore became vested in the United State. On
September 13, 1948, the United State of Kathiawad executed a fresh instrument
of accession to the Dominion of India cancelling the instrument of accession
executed by the covenanting States in or about August, 1947.
On November 13, 1949, the United State of
Kathiawad agreed to adopt the Constitution to be framed by the Constituent
Assembly of India and further that the Constitution of India as from the date
of its commencement would supersede and abrogate all other constitutional
provisions inconsistent therewith in force in the United State. On the
promulgation of the Constitution of India on January 26, 1950, the United State
merged in the Union of India and became Saurashtra, a Part B State mentioned in
the Constitution. The United State and therefore its component States since
then lost all separate existence. It is not in dispute that upon such merger
all the assets of the United State became vested in the Union of India.
On January 27, 1950, Kumar Shri Krishan
Kumar, the elder son of the Ruler Darbar Saheb Shri Surag Vala died and
thereafter on May 16, 1950, the Ruler himself died. On February 12, 1951, the
President of India issued a notification recognising the petitioner as the
Ruler of Vadia with effect from May 16,1950, and he became entitled to the
rights of the Ruler which the Government of India had agreed to recognise.
These were the rights reserved to the Ruler under the covenant constituting the
United State of kathiawad, namely, the right to a privy purse, to the private
properties and to the personal privileges, dignities and titles.
524 On July 2, 1951, the Government of the
State of Saurashtra issued a notification declaring that as the petitioner had
succeeded his father as Ruler, the village Pithadia should, pending final
orders be treated as Khalsa or Khas village of the State of Saurashtra. The
petitioner was then a minor and his mother submitted a representation to the
Government protesting against the notification. No reply was received to this
protest. On May 23, 1952, the Government of Saurashtra issued a further
notification which stated:
" Whereas the village Pithadia in Vadia
Taluka of the Madhya Saurashtra District was granted, by Lekh No. 194 dated 5th
July, 1943, as Kapal Giras by the late Ruler Darbar Saheb Suragwala of the
former Vadia State to his second son Shri K. S. Viravala in the latter's
capacity as a cadet, in appanage grant; and Whereas, the late Ruler and his
eldest son Shri K. S. Krishna Kumarsinghji predeceased this second son Shri K.
S.Viravala, the latter has been recognised as the Ruler of the former State of
Vadia with effect from 16th May, 1950, by the Government of Saurashtra and the
President of India as per Notification No. PD/MS/20 dated 12th February, 1951,
of the Government of Saurashtra Revenue Department (Political) published in the
Gazette of Saurashtra and Whereas, pending the recognition the Government of
Saurashtra had ordered, by Notification No. PD/148/20, dated 2nd July, 1951, of
the Revenue Department (Political) that village should be treated as Khalsa
village of the State of Saurashtra and whereas Shri K. S. Viravala's status as
a Cadet has ceased and the object of the grant in appanage has terminated in
consequence of his being recognised as the Ruler.
Now, therefore, the grant is deemed to have
lapsed and reverted to the former Vadia State now integrated with the State of
Saurashtra at present known as the State of Saurashtra with effect from the
date of Shri K. S. Viravala having been recognised as the Ruler of the former
Vadia State in succession to the late Ruler Darbar Shri Suragwala of Vadia
State, viz., 16th of May, 1950 ".
525 The petitioner again lodged a protest
against this latter notification but this time also received no reply. On March
9, 1956, he filed the present petition under Art. 32 of the Constitution asking
for the issue of a writ directing the respondent, the State of Bombay, in which
State State of Saurashtra had earlier merged, to withdraw or cancel the notification
and to restore the village Pithadia with all collections and realisations made
by it to the petitioner and restraining the respondent from giving effect to
The petitioner's contention is that the
village had been granted to him absolutely and unconditionally for permanent
enjoyment from generation to generation and the State could not resume it so
long as any of the descendants of the petitioner was alive. He contends that
President's recognition of him as Ruler of Vadia did not affect his rights to
the village. The respondent's contention is that the grant was not absolute or
unconditional but it was to remain in force so long as the petitioner continued
to be a cadet of the family and that as on his being recognised as the Ruler he
ceased to be a cadet, the grant lapsed and the village reverted to the State.
It is said that the Union of India being entitled to all the assets of the
State of Vadia, the village has become its property since the date of the
petitioner's recognition as the Ruler.
The question therefore is whether the grant
lapsed on the grantee becoming the Ruler. That is a question depending on the
terms of the grant. Capt. Webb in his compilation called " Political
Practice in Kathiawad " has defined a ' Bhayat' as a cadet or the
descendant of a younger branch of a Talukdar's family where the estate follows
the rule of primogeniture. The grant was made by a document called a Lekh or a
writing to which was attached a Hakpatrak which is a Statement of rights created
by the Darbar to a Bhayat.
Both these documents were registered before
the Agency. The main portions of the. Lekh were in these terms:
" Passed by Shree Vadia Darbar Shree
Suragvala Bavavala, to long-lived Kumar Shree Viravala. To wit:-the Rule of
primogeniture (i.e., the system 69 526 of Heir-apparent and cadets) having been
applied to this State, and you being our Kumar (SOD) younger than our eldest
Kumar, long-lived Yuvaraj Shree Krishna Kumar Saheb, you are, by this Lekh,
given, as Bhayat, for permanent enjoyment as Kapal Giras, from generation to
generation, the village " Mota-Pithadia ", a village of exclusive
jurisdiction of this State, which is of our possession, enjoyment and
ownership, with its village, Tal (village site), and Sim with all their
boundaries, fields, Vadis, Kharo, Kharabo, etc., i.e., with all the boundaries
of' the said village, as Giras. You may enjoy the revenues thereof from the
beginning of the Year Samvat 2000.
as Bhayat, a Hakpatrak (statement of rights)
thereof, according to procedure has been given. The same has been attached
herewith. You and your heirs and successors may enjoy the same. Map and
Field-Book of this village have been made, true copies whereof have been got
prepared and given to you ".
The lekh conferred various other dignities,
privileges, amenities and rights on the petitioner. Thus it is stated that the
petitioner's marriage will be celebrated at the State expense and the State
will arrange for his education, that no duties or taxes will be levied on the
petitioner on account of his residence in Vadia proper, that the petitioner's
complaint regarding Giras, i.e., the village granted, or any other civil matter
would be heard without charging any court fee and he would be exempt from
personal attendance in court in civil matters and that no process will be
issued against him in criminal cases without the permission of the Ruler
himself. All these dignities, rights and privileges are appropriate to a cadet
of the Ruler's family, but have no meaning when applied to a Ruler.
In the Hak Patrak it is stated: " In
future even if your descendants are joint or may have divided, any one Bhayat
surviving from amongst your descendants shall enjoy the Sudharo Giras and it
Shall not 527 revert to the State till any one Bhayat from amongst your
descendants is living ". It also states that the grantee will not sell or
mortgage the Giras without the permission of the State.
The grant and the Hak Patrak read together
lead to the inescapable conclusion that in its true natures the grant is a
grant to a cadet of the family and the grant enures for his benefit as long as
he remains a cadet. The expression " given as Bhayat " is not merely
descriptive of the grantee, but indicates the true nature of the grant. Nor do we
agree that the expression " given as Bhayat " merely indicates the
purpose for which the grant is made but describes the nature of the tenure. The
grant states in express terms that it is given as Bhayat for permanent
enjoyment as Kapal-Giras, which means that the grant is to a cadet as an
appanage and continues from generation to generation as long as any of the
descendants of the grantee is alive. But if the grantee ceases to be the
younger branch and becomes heir-apparent by reason of the rule of primogeniture
or ceases to be a cadet or Bhayat for any reason whatsoever, then the grant
must come to an end. This is what the rights and liabilities mentioned in the
grant itself and also in the Hak Patrak show; for example, with regard to the
right of succession, the Hak Patrak states that even if one Bhayat from amongst
the descendants survives he shall enjoy the Giras and there will be no
reversion to the State.
This, in our opinion, shows that the grant
enures as long as there is a Bhayat. If there is no Bhayat the grant lapses.
If on a true construction the grant is of the
nature indicated above, then no question of reading an implied term in the
grant arises; nor is there any necessity of determining whether the petitioner
has become a ruler in the sense in which his father was a ruler of the Vadia
Whatever be the reason for which the
petitioner has ceased to be a Bhayat, either by reason of the death of his
elder brother or by reason of his becoming a ruler in the limited sense of the
Constitution, he has ceased to be a Bhayat and the grant being given as Bhayat
for 528 permanent enjoyment as Kapal-Giras, it has come to an end.
In that view of the matter the petitioner
must be held to have failed to make out any infringement of his fundamental
:'right by reason of the notification dated May 23, 1952.
The infringement which the petitioner
complains of is deprivation of his property by State action and he bases his
right on the terms of the grant. If the grant is not an absolute grant in the
sense in which the petitioner contends, but is a grant which by its very nature
contains a defeasance clause, then the petitioner cannot found his claim on any
violation of his fundamental right.
The petition is therefore dismissed with