Shrimant Sardar Bhujangaraodaulatrao
Ghorpade Vs. Shrimant Malojirao Daulatraoghorpade & Ors  INSC 5 (30
BOSE, VIVIAN SASTRI, M. PATANJALI (CJ) DAS,
CITATION: 1952 AIR 138 1952 SCR 402
CITATOR INFO :
E&D 1964 SC 436 (13)
Bombay Revenue Jurisdiction Act (X of 1876),
s. 4 (a)--Saranjam--Dispute between branches of grantee's family--Government
Resolution regulating succession--Suit to declare Resolution ultra vires, for
declaration of sole right as saranjamdar, and for injunction against other
branches--Government impleaded as party--Maintainability of suit.
The position of the Gajendragad estate which
had been recognised by the British Government as a saranjam and which had been
declared by the Bombay High Court in 1868 to be partible, was re-examined in
1891 and Government passed a Resolution in 1891 that "the whole of the
Gajendragad estate was a saranjam continuable as hereditary in the fullest
sense of the word. It is continuable to all male legitimate descendants of the
holder at the time of the British conquest." In 1932 by another Resolution
Government formally resumed the grant and re-granted it to the plaintiff who
belonged to the first branch of the family of the original grantee with a
direction that it should be entered in his sole name in the accounts of the
Collector. The other two branches felt aggrieved and in 1936 Government passed
another Resolution which confirmed the Resolution of 1891 and modified the
Resolution of 1932, by declaring that the portions of the 403 estate held by
the branches shall be entered as de facto shares and that each share shall be
continuable hereditarily as if it were a separate saranjam estate. The
plaintiff instituted a suit impleading the representatives of the other two
branches as defendants 1 and 2, and the Province of Bombay as the 3rd
defendant, alleging that the Resolution of 1936 was ultra vires and praying (A)
for a declaration (i) that the defendants 1 and 2 had no right to go behind the
Resolution of 1932 under which the plaintiff was recognised as the sole
saranjamdar and that the assignments held by defendants were held by them as
mere potgi holders, (ii) that the plaintiff had the sole right to all
privileges appertaining to the post of saranjamdar, and (iii) that the
Government had no right to change the Resolution of 1932, and (B) for
restraining the defendants 1 and 2 from doing any acts in contravention of the
aforesaid right of the plaintiff.
Held, (i) that the suit was a suit
"against the Crown" and also a suit "relating to lands held as
saranjam" within the meaning of sec. 4 of the Bombay Revenue Jurisdiction
Act, 1876, and the Civil Courts had no jurisdiction to entertain the suit;
(ii) that the plaintiff could not be given
even the reliefs claimed against defendants 1 and 2 alone, as the rights
claimed against these defendants could not be divorced from the claim against
the Government and considered separately;
(iii) in any event if the claim against the
Government was to be ignored it can only be on the basis that its orders could
not be challenged and if the orders stood, the plaintiff could not succeed
because both sides held their respective properties on the basis of those
Basalingappagowda v. Secretary of State (28
Born. L.R. 651) and Basangauda v. Secretary of State (32 Bom. L.R. 1370)
approved. Province of Bombay v. Hormusji Maneklal (74 I.A. 03) distinguished.
Held also, that see. 4 of the said Act would
apply even if the only relief claimed in the suit against the Government was a
Dattatreya Viswanath v. Secretary of State
for India (I.L.R. 1948 Bom. 809) disapproved. Daulatrao v. Government of Bombay
(47 Bom. L.R. 214) approved.
CIVIL APPPELLATE JURISDICTION: Civil Appeal
No. 11 of 1950.
Appeal from the judgment and decree of the
High Court of Bombay (Bhagwati and Dixit JJ.) dated 16th December, 1948, in
Second Appeal No. 1226 of 1945 confirming a judgment and decree of the District
Judge of Dharwar in Appeal No. 123 of 1943. The facts of 404 the case and the
arguments of the counsel appear in the judgment.
B. Somayya and Sanjiva Rao Naidu (N. C. Shaw,
with them) for the appellant.
M.C. Setalvad, Attorney-General for India,
Lokur, with him) for the respondents Nos. 1
M.C. Setalvad, Attorney-General for India,
(G. N. Joshi, with him) for respondent No. 3 (the State of Bombay.) 1952.
January 30. Judgment was delivered by BOSE J.
PATANJALI SASTRI C.J. and DAS J. agreed with
Bose J.--The plaintiff appeals.
The suit relates to a Saranjam estate in the
State of Bombay. The plaintiff claims to be the sole Saranjamdar and seeks
certain declarations and other reliefs appropriate to such a claim.
The first and second defendants are members
of the plaintiff's family while the third defendant is the State of Bombay
(Province of Bombay at the date of the suit).
The only question is whether the suit is
barred by section 4 (a) of Bombay Act X of 1876 (Bombay Revenue Jurisdiction
The following genealogical tree will show the
relationship between the parties:
Bhujangrao Appasaheb (British grantee)
Daulatrao I (died 24--7--1864) Bhujangrao I Malojirao Yeshwantrao alias (died
1881 ) : Annasaheb : : :
(widow) Krishnabai Daulatrao III Bhujangrao
II Daulatrao II (Del. 1) (Def. 2) (died 8--5--1931) :
Bhujangrao III (Plaintiff) 405 The facts are
as follows. A common ancestor of the present parties was given the Gajendragad
estate as a Saranjam some time before the advent of the British. When they
arrived on the scene they decided, as far as possible, to continue such
Saranjams, jagirs and inams as had been granted by the earlier rulers, and
accordingly they framed rules under Schedule B, Rule 10 of Bombay Act XI of
1852 (The Bombay Rent Free Estates Act of 1852) to regulate the mode of
recognition and the succession and conditions of tenure to Saranjams, which are
analogous to jagirs. In compliance with this, the common ancestor shown at the
head of the genealogical tree set out above was recognised by the British
Government as the Saranjamdar of the Gajendragad estate.
He may for convenience be termed the British
Grantee. The Register Ex. P-53 shows that the estate consisted of 26 villages.
We do not know the date of the British recognition but the nature of the tenure
is described as follows :-"Continuable to all male legitimate descendants
of the holder at the time of British conquest, viz., Bhujangrao Appasaheb, the
first British Grantee, son of Bahirojirao Ghorpade." On the death of the
British Grantee (Bhujangrao Appasaheb) he was succeeded by his son Daulatrao I
who died on the 24th of July, 1864. This Daulatrao I left three sons,
Bhujangrao I, Yeshwantrao and Malojirao.
In the year 1866 Bhujangrao I and his brother
Yeshwantrao alias Annasaheb sued Malojirao for possession of this Saranjam. A
question of impartibility was raised but the Bombay High Court declared that
the property in British India was partible. They further declared that
Bhujangrao I was the head of the family and as such was entitled to a special
assignment which was not to exceed a quarter share, for the expenses and duties
which might devolve on him by virtue of his position, and that after this had
been set aside each of the three brothers was entitled to an equal one-third
Share in the landed property in India. This judgment 406 is reported in 5 Bom.
H.C.R. 161. The duties enumerated at page 170 included the "keeping up of
armed retainers for the fort of Gajendragad, and for the improvement of that
village, which was the chief seat of this branch of the Ghorpade family, and
also to enable him to distribute on ceremonial occasions the customary presents
to the junior members of the family." The judgment is dated the 12th of
As a consequence a division of the property
was effected. Malojirao separated himself from his brothers and was allotted
seven villages. The other two brothers continued joint and took the remainder.
But this was only with respect to property situate in British India. The
parties also had property in the State of Kolhapur. That was left undivided.
Bhujangrao I died in 1881 and his younger
brother Yeshwantrao (alias Annasaheb) claimed to succeed as the sole heir. The
Political Department of the Government of India refused to recognise this claim
and permitted Bhujangrao I's widow Krishnabai to adopt a a boy from the family
and recognised him as the heir in respect of that portion of the estate which
lay within the Principality of Kolhapur. This was on the 3rd of February, 1882.
The Bombay Government followed a similar
course regarding the property in British India. On the 26th of April, 1882,
they passed a Resolution embodying the following decision:
(1) The adoption was to be recognised and the
adopted son was to occupy the same position as his adoptive father, that is to
say, he was to get one-third of the property plus the assignment given to him
as head of the family.
(2) Malojirao who had already taken his share
of the estate was to continue in possession.
(3) Yeshwantrao (alias Annasaheb) was given
the option of remaining joint with the adopted boy or separating.
Finally, the Resolution Concluded-407 ``The
two brothers will hold their respective shares as their private property in
virtue of the decree of the High Court and the Jahagir will henceforth be
restricted to the portion awarded by the High Court to Bhujangrao which the
adopted son will now inherit. It should however be clearly understood that the
decision of the High Court is not to be held as a precedent and that no
partition of the Jahagir Estate to be continued to the adopted son will ever be
allowed." This position was emphasised by Government in the same year on
the 22nd August, 1882. Krishnabai, who had been allowed by Government to adopt
Daulatrao II, asked that her husband's one-third share in the estate be also
treated as private property in the same way as the shares of the other two
brothers. This prayer was refused and Government stated:
"It should be plainly understood that
Government allow the adoption to be made by her only in consideration of
Bhujangrao's one-third share as well as the portion assigned to him as head of
the family being continued to the adopted son as indivisible Jahagir Estate
descending in the line of male heirs in the order of primogeniture and subject
to no terms whatsoever as to the enjoyment of the same by Krishnabai during her
lifetime." The position was re-examined by Government in 1891 and its
decision was embodied in the following resolution dated the 17th of March, 1891:
"It appears to Government that the whole
Gajendragad Estate is a Saranjam continuable as hereditary in the fullest sense
of the word as interpreted by the Court of Directors in paragraph 9 of their
Despatch No. 27 dated 12th December, 1855. It is continuable to all male
legitimate descendants of the holder at the time of the British conquest; and
should Government ever sanction an adoption the terms of sanction would be
those applicable to Saranjamdars.
The property should be dealt with like Other
Saranjams in the Political Department." 53 408 In the year 1901 the
adopted son Daulatrao II sued Yeshwantrao's son Bhujangrao II for partition. It
will be remembered that in the litigation of 1866, which ended in the Bombay
High Court's judgment reported in 5 Bom. H.C.R.
161, Malojirao alone separated and the other
two brothers continued joint. The litigation of 1901 put an end to that
position. High Court's judgment dated the 12th of March, 1908, makes it clear
that as Government was not a party to that litigation its rights against either
or both of the parties were not affected. But as between the parties inter se
they were bound by the previous decision and so the adopted son was entitled to
partition and separate possession of such properties as might fall to his
share. After this decision was given the two partitioned the property between
In or about the year 1930 a Record of Rights
was introduced in fourteen of the villages in the Gajendragad Jahagir and a
dispute arose again between the three branches of the family. The District
Deputy Collector, after inspecting the records, found that "the name of
the Khatedar Saranjamdar alone has found place in the village Inam register, in
the Saranjam list and the land alienation register," while in the other
village records the various members of the family were entered according to the
"actual wahivat or enjoyment." After due consideration he thought
that the interest of Government and the Saranjamdar would be sufficiently safeguarded
by allowing the same position to continue. He ordered the entries to be made
accordingly. The order also discloses that the matter had been referred to the
Legal Remembrancer to the Bombay Government.
In the meanwhile, on the 5th of May, 1898, a
set of Rules framed under Schedule B, Rule 10, of the Bombay Rent Free Estates
Act of 1852 were drawn up and published in the Bombay Gazette. These Rules were
republished, probably with some modification, in the Gazette of 8th July, 1901.
The portions applicable here were as follows:409 "I. Saranjams shall
ordinarily be continued in accordance with the decision already passed by
Government in each case.
II. A Saranjam which has been decided to be
hereditarily continuable shall ordinarily descend to the eldest male
representative, in the order of primogeniture, of the senior branch of the
family descended from the first British Grantee or any of his brothers who were
undivided in interest.
But Government reserve to themselves their
rights for sufficient reason to direct the continuance of the Saranjam to any
other member of the said family, or as an act of grace, to a person adopted
into the same family with the sanction of Government.
V. Every Saranjam shall be held as a life
estate. It shall be formally resumed on the death of the holder and in cases in
which it is capable of further continuance it shall be made over to the next
holder as a fresh grant from Government, unencumbered by any debts, or charges,
save such as may be specially imposed by Government itself.
VI. No Saranjam shall be capable of
VII. Every Saranjamdar shall be responsible
for making a suitable provision for the maintenance of...... "(certain
members of the family enumerated in the Rule).
IX. If an order passed by Government under
Rule VII is not carried out, Government may, whatever the reason may be, direct
the Saranjam, or a portion of it, to be resumed....... Provision for the
members of the Saranjamdar's family entitled to maintenance shall then be made
by Government out of the revenues of the Saranjam so resumed." After the
District Deputy Collector's orders were passed on the 20th of May, 1930,
Daulatrao II died on the 8th of May, 1931, and the matter was again taken up by
Government. This time it passed the following 410 Resolution on the 7th of
June, 1932. The Resolution was headed, "Resumption and regrant of the
Gajendragad Saranjam standing at No. 91 of the Saranjam List." It reads-"Resolution
:--The Governor-in-Council is pleased to direct that the Gajendragad Saranjam
should be formally resumed and regranted to Bhujangrao Daulatrao Ghorpade
eldest son of the deceased Saranjamdar Sardar Daulatrao Bhujangrao Ghorpade and
that it should be entered in his sole name in the accounts of the Collector of Dharwar
with effect from the date of the death of the last holder. The Collector should
take steps to place the Saranjamdar in possession of the villages of the
Saranjam estate which were in possession of the deceased Saranjamdar.
2. The Governor-in-Council agrees with the
Commissioner, Southern Division, that the assignments held by the Bhaubands as
potgi holders should be continued to them as at present." The Bhujangrao
mentioned in the Resolution is the plaintiff who is shown as Bhujangrao III in
the genealogical tree.
The defendants were evidently aggrieved by
this, for they filed Suit No. 23 of 1934 against the present plaintiff and the
Secretary of State/or India in Council praying inter alia "that the
properties in that suit, viz., the villages allotted to their shares, were
their independent and private properties and in case they were held to be
Saranjam properties, they be declared as independent Saranjams, separate and
distinct from the one held by the present plaintiff." This suit was withdrawn
with liberty to bring a fresh suit on the same cause of action against the
present plaintiff but not against the Secretary of State for India in Council.
According to defendants 1 and 2, this was pursuant to an arrangement between
the Government and themselves that Government would issue a fresh Resolution in
terms of the earlier Resolution dated the 17th of March, 1891.
411 This was done. On the 25th of February,
1936, Government passed the following Resolution :-"Resolution :--After
careful consideration the Governor-in-Council is pleased to confirm the
decision in Government Resolution (Political Department) No. 1769 dated the
17th of March, 1891,and to declare that the whole of the Gajendragad Estate
shall be continuable as an inalienable and impartible Saranjam on the
conditions stated in the said Resolution. Having regard, however, to the manner
in which different portions of the estate have been held by different branches
of the family, the Governor-in-Council, in modification of the orders contained
in Government Resolution No. 8969 dated the 7th June, 1932, is pleased to
direct that the portions of the said estate held by Sardar Bhujangrao Daulatrao
Ghorpade, Daulatrao Malojirao Ghorpade and Bhujangrao Yeshwantrao Ghorpade,
respectively, shall henceforth be entered in the Revenue Records as de facto
shares in the said estate held by the said persons as representatives,
respectively, of three branches of the Ghorpade family. Each of the said de
facto shares shall be continuable hereditarily as such as ii it were a separate
Saranjam estate in accordance with the rules made for the continuance of
Saranjams by the Governor-inCouncil in exercise of the powers referred to in
the rules framed under the Bombay Rent Free Estates Act, 1852, and section 2
(3) of the Bombay Summary Settlement Act (VII of 1863) and such special orders
as the Governor-in-Council may make in regard to the Gajendragad Estate as a
whole or in regard to the said share. The recognition of the aforesaid shares
and their entry in the Revenue Records as separate shares shall not be deemed
to amount to a recognition of the estate of Gajendragad as in any manner
partible or alienable and shall not in any way affect the right of Government
to treat the said estate as an entire impartible and inalienable Saranjam
2. The Governor-in-Council further directs
that the aforesaid shares shall in no case be capable of 412 sub-division and
shall not in any way be alienated or encumbered except in accordance with the
rules and orders referred to above..." The present suit is an attack on
the action of Government in passing this Resolution. The first and second
defendants are the present representatives of the other branches of the family
and the third defendant is the Province of Bombay (now the State of Bombay).
The plaint states"9. Government can have no jurisdiction to deprive the
plaintiff at any rate during his lifetime of the full benefit of all the rights
and privileges appertaining to the holder of a Saranjam. The Order of
Government of the 8th February, 1936 is, therefore, ultra vires and in no way
binding on the present plaintiff......
10. Defendants 1 and 2, therefore, are not
entitled to any rights or privileges claimable by the holder of a Saranjam
which according to the G.R. is continuable 'as an inalienable and impartible
Saranjam', such as for example in the matter of appointment of the village
officers in any of the 27 villages appertaining to the Gajendragad Saranjam.
11. The cause of action arose in April 1938
and the resolution and the entry being ultra vires is not binding...
12. As this is a suit claiming for relief
primarily against defendants 1 and 2, defendant 3 is made a party to the suit
in order to enable Government (defendant 3) to give proper effect to the
decision of Government of the 17th March, 1891, and of 7th June, 1932, as
against defendants 1 and 2 who have no right to the position which they
claim..." The reliefs prayed for are-"(a) That it be declared that
defendants 1 and 2 have no right to go behind the order of the Government as
per Resolution No. 8969 of 7th June, 1932, under which plaintiff is entitled to
be recognised as the sole Saranjamdar in the Revenue Records, and that the
assignments held by defendants 1 and 2 are held by them as mere potgi holders.
413 (b) That in consequence of his position
of a sole Saranjamdar the plaintiff alone at any rate during his lifetime has
the sole right to the rights and privileges appertaining to the post of a sole
Saranjamdar, to wit, to be consulted in the appointment of the village officers
in all the villages appertaining to the Saranjam estate, but assigned to
defendants 1 and 2 for potgi...
(c) Defendants 1 and 2 be restrained from
doing any acts or taking any steps in contravention of the aforesaid right of
(d) That it be declared that defendant 3
(Government) have no right to change the Resolution No. 8969 of 7th June, 1932,
and at any rate during the lifetime of the plaintiff." The first Court
dismissed the plaintiff's claim on the merits holding that Government had the
right to amend its Resolution in the way it did.
The lower appellate Court also dismissed the
suit on three grounds: (1) that the two previous decisions of 1868 and 1908
operate as res judicata, (2) that the impugned Resolution is intra vires and
(3) that section 4 (a) and (d) of the Revenue Jurisdiction Act bars the
jurisdiction of the Court.
In second appeal the High Court only
considered the question of jurisdiction and, agreeing with the lower appellate
Court on the point, dismissed the appeal but it granted the plaintiff leave to
appeal to this Court.
The only question we have to consider is the
one of jurisdiction. Section 4 of the Bombay Revenue Jurisdiction Act, 1876
(Bombay Act X of 1876), runsSubject to the exceptions hereinafter appearing, no
Civil Court shall exercise jurisdiction as to(a)...claims against the Crown
relating to lands... held as Saranjam.... " It was strenuously contended
that this is not a claim against the Crown but one against the first and second
defendants. That, in my opinion, is an idle contention in view of paragraphs 9
and 12 of the plaint and reliefs (a)and (d). In any event, Mr. Somayya was
asked whether he would strike out the third defendant 414 and those portions of
the plaint which sought relief against it. He said he was not prepared to do
so. I cannot see how a plaintiff can insist on retaining a person against whom
he claims no relief as a party. I am clear that this is a suit against the
"Crown" within the meaning of section 4(a).
The next question is whether, assuming that
to be the case, it is also one "relating to lands held as Saranjam."
So far as the reliefs sought against Government are concerned, that is clearly
the case. Paragraph 9 of the plaint challenges Government's jurisdiction to
deprive the plaintiff of the full benefit of all rights and privileges
appertaining to the holder of a Saranjam. These rights cannot exist apart from
the lands which form part of the Saranjam estate and the implication of the
prayer is that Government has, for example, no right to resume the Saranjam
either under Rule V on the death of the last Saranjamdar or under Rule IX
during his lifetime. It is to be observed that a resumption under Rule IX can
only be of the land because the rule directs that when the Saranjam is resumed
Government itself shall make provisions for the maintenance of those entitled
to it "out of the revenues of the Saranjam so resumed." These
revenues can only come out of the land.
Relief (d) in the prayer clause seeks a
declaration that Government has no right to change Resolution No. 8969 dated
the 7th of June, 1932. That Resolution directly relates to the land because it
directs that the Gajendragad Saranjam be resumed and the Collector is directed
to take steps to place the Saranjamdar in possession of the villages of the
Saranjam estate etc.
It is impossible to contend that this is not
a claim relating to lands held as Saranjam.
It was next argued that if that be the case
the claim against Government can be dismissed and the plaintiff can at least be
given the reliefs claimed against the other two defendants. These, it was
contended, do not relate to land and in any event are not claims against the
415 In my opinion, this is not a suit in
which the rights claimed against the other defendants can be divorced from the
claim against Government and considered separately. That is evident enough from
paragraph 10 of the plaint. In paragraph 9 the power of Government to deprive
the plaintiff of the rights he claims is challenged and in paragraph 10 the
plaintiff explains that "therefore" the first and second defendants
are not entitled to any of the rights and privileges of the Saranjamdar. One of
those rights, as we have seen from Rules VII and IX, is to take the revenues of
the entire estate in order that he might fulfill his obligation regarding the
payment of maintenance to certain members of the family; and if the defendants
claim to hold their lands under the orders of Government and the plaintiff
insists on retaining Government as a party in order that it may be bound by the
decree he wants against the other defendants it is obvious that his claim
against these defendants cannot be separated from his claim against the Government.
In any event, if the claim against Government
is to be ignored it can only be on the basis that its orders cannot be
challenged and if the orders stand it is evident that the plaintiff can have no
hope of success because both sides hold their respective properties on the
basis of those orders.
There are two decisions of the Bombay High
Court which have taken this view. Basalingappagouda v. The Secretary of State
for India(1) was a Watan case. Government had recognised the second defendant
as the Watandar. Plaintiff sued Government and the second defendant and sought
a declaration and injunction. On being faced with the dilemma that the suit
against Government did not lie because of section 4 (a) (3) of the Bombay
Revenue Jurisdiction Act of 1876, he asked the Court, as here, to leave the
Government out of consideration and decree his claim against the second
defendant alone. The learned Judges held that that would amount to striking out
the main relief sought against both the defendants and would entirely (1) 28
Born. L.R. 651.
54 416 change the character of the suit and
added that "as long as the Secretary of State is a party to the suit, such
a declaration could not be granted." In the other case, Basangauda v. The
Secretary State(1), Beaumont C.J. and Baker J. took the same view.
They said-"Mr. Gumaste, who appears for
the appellant, says that his claim is not a claim against the Government but in
that case he ought to strike out the Government. He is not prepared to strike
out the Government, because if he does they will not be bound by these
proceedings and will follow the decision of their revenue tribunals. Therefore,
he wants to make the Government a party in order that they may be bound.
But, if they remain a party, it seems to me
that there is a claim against them relating to property appertaining to the
office of an hereditary officer, although no doubt it is quite true that the
appellant does not desire to get any order against the Government as to the way
in which the property should be dealt' with or anything of the sort, and he
only wants a declaration as to his title which will bind Government." They
held that the jurisdiction of the courts was ousted.
It was next contended, on the strength of a
decision of the Judicial Committee of the Privy Council reported in Province of
Bombay v. Horrnusji Manekji(2). that the courts have jurisdiction to decide
whether Government acted in excess of its powers and that that question must be
decided first. In my opinion, this decision does not apply here.
Their Lordships were dealing with a case
falling under section 4 (b) of the Bombay Revenue Jurisdiction Act of 1876.
That provides that-"...no Civil Court shall exercise jurisdiction as
(b) objections to the amount or incidence of
any assessment of land revenue authorised by the Provincial Government."
(1) 32 Bom. L.R. 1370. (2) 74 I A. 103 417 As pointed out by Strangman K.C., on
behalf of the plaintiff-respondent, "authorised" must mean "duly
authorised," and in that particular case the impugned assessment would not
be duly authorised if the Government Resolution of 11-4-1990 purporting to
treat the agreement relied on by the respondent as cancelled and authorising
the levy of the full assessment was ultra vires under section 211 of the Land
Revenue Code. Thus, before the exclusion of the Civil Court's jurisdiction
under section 4 (b) could come into play, the Court had to determine the issue
of ultra vires.
Consequently, their Lordships held that that
question was outside the scope of the bar. But the position here is different.
We are concerned here with section 4 (a) and under that no question about an
authorised act of Government arises. The section is general and bars all
"claims against the Crown relating to lands...... held as Saranjam."
That is to say, even if the Government's act in relation to such lands was
ultra vires, a claim impugning the validity of such an act would fall within
the scope of the exclusion in clause (a) provided it relates to such land.
There is a difference of opinion in the
Bombay High Court as to whether section 4 is attracted if the only relief
sought against Government is a declaration. One set of decisions holds that
that does not amount to a "claim against Government." Dattatraya
Vishwanath v. The Secretary of State for India(1) is typical of that view. On
the other hand, Daulatrao v. Government of bombay(2), a case relating to the
Gajendragad estate, took the other view. In my opinion, the latter view is
In my opinion, the decision of the High Court
was right and I would dismiss the appeal with costs.
PATANJALI SASTRI C.J.--I agree.
S.R. DAS J.-I agree.
Agent for the appellant: Ganpat Rai.
Agent for respondents Nos. 1 & 2: M.S.K.
Sastri. Agent for respondent No. 3; P.A. Mehta.
(1)I.L.R. 1948 Born. 809 at 820. 2) 47 Bom.