Thakur Brij Raj Singh & ANR Vs.
Thakur Laxman Singh & ANR [1960] INSC 145 (8 September 1960)
HIDAYATULLAH, M.
DAS, S.K.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1961 AIR 149 1961 SCR (1) 616
ACT:
Maintainability of suit-Istimrari
estate-Adoption by widow Suit challenging factum and validity of
adoption-Enactment providing for confirmation of adoption by Central Government
and conditional right of suit-Bar of suit-Ajmer Land and Revenue Regulation,
1877 (Regulation 11 of 1877) SS. 23, 24, 119.
HEADNOTE:
After the death of B, the holder of an
istimrari estate, on September 28, 1947, leaving no male issue, the Court of
Wards took over the estate and issued a notice under the provisions of the
Ajmer Land and Revenue Regulation, 1877, inviting claims to the estate. While
the enquiry was pending, an application was filed to the effect that the
appellant was adopted on February 24, 1948, by the widow of B and that steps
should be taken for the confirmation of the adoption under the third proviso to
S. 23 of the Regulation.
On September 10, 1951, the adoption was
confirmed by the President of India. Thereupon the first respondent instituted
a suit for a declaration, inter alia, that the appellant was not adopted as a
fact and, in the alternative, the adoption was invalid and illegal. The
appellant in his defence pleaded that after the confirmation of the adoption by
the Central Government, which must be deemed to have considered and decided the
factum and legality of the adoption, such questions could not be challenged in
a civil court in view of S. 119 read with S. 23 of the Regulation and that,
therefore, the suit was not maintainable.
Held, (S. K. Das, J., dissenting), (1) that
though under S. 23 of the Ajmer Land and Revenue Regulation, 1877, an adoption
made by a widow is not deemed valid until confirmed by the Central Government,
such confirmation cannot confer validity on the adoption if it be otherwise
invalid under the general law ; and (2) that under S. 119(1) of the Regulation
the only thing done, ordered or decided by the Central Government which cannot
be impeached, is the confirmation, but the decision to grant confirmation does
not imply an ouster of the jurisdiction of the civil courts to examine the
facts and acts of the parties, which preceded the proceedings for confirmation.
Accordingly, the present suit brought in the
civil court seeking relief not with reference to the confirmation but for a
declaration that the adoption is invalid, is not barred under. SS. 23 and 119
of the Regulation.
Per S. K. Das, J.-The confirmation referred
to in the third proviso to S. 23 of the Regulation necessarily involves a
determination of two facts, viz., (a) whether the widow has power to 617 adopt,
and (b) whether she has in fact adopted a son to the late istimrardar, as
otherwise, divorced from these two facts, the confirmation has no meaning and
no intelligible content. Since under s. 119 no suit lies to obtain a decision
contrary to the Sin order of confirmation, on a proper construction of ss. 23
and 119 of the Regulation, the present suit is barred.
CIVIL APPELLATE JURISDICTION :Civil Appeal
No. 8/1955.
Appeal by special leave from the judgment and
decree dated January 7, 1954, of the former Judicial Commissioner's Court,
Ajmer, in Civil First Appeal No. 28 of 1953.
A. V. Viswanatha Sastri, J. B. Dadachanji,
Rameshwar Nath and P. L. Vohra, for the appellants.
B. Sen and I. N. Shroff, for the respondents.
1960. September 8. The Judgment of M.
Hidayatullah, K. C. Das Gupta, J. C. Shah and N. Rajagopala Ayyangar, JJ., wasdelivered
by Hidayatullah, J. S. K. Das, J., delivered a separate Judgment.
HIDAYATULLAH J.-This appeal, with the special
leave of this Court, is against the judgment dated January 7, 1954, of the
Judicial Commissioner of Ajmer in Civil First Appeal No. 28 of 1953, by which
the judgment of the Senior Subordinate Judge, Ajmer, dismissing the suit of the
first respondent was reversed.
The facts of the case are as follows: One
Thakur Banspradip Singh was the Istimrardar of Sawar. He died on September 28,
1947, leaving no male issue either by birth or by adoption. After his death,
the Court of Wards took over the estate, and a notice under s. 24 of the Ajmer
Land and Revenue Regulation, 1877 (Regulation No. II of 1877) was issued
inviting claims to the estate. One Thakur Khuman Singh, who was the father of
Thakur Laxman Singh (respondent No. 1), Thakur Brij Raj Singh (appellant No. 1)
and Thakur Inder Singh of Rudh (respondent No. 2) preferred claims.
While this enquiry was pending, Thakur Khuman
Singh died and Thakur Laxman Singh's name was substituted in his place.
During' 618 the enquiry, the Deputy
Commissioner referred some interlocutory matter to the Chief Commissioner, and
the Chief Commissioner fixed the case for hearing on February 25, 1948. On-that
date, an application was filed to the effect that Thakur Brij Raj Singh was her
adopted on February 24, 1948, by Rani Bagheliji, the widow of Thakur Banspradip
Singh, and that the Chief Commissioner should move the Governor-General to
confirm the adoption under the third proviso to s. 23 of the Regulation. From
the judgment of the Senior Subordinate Judge, it appears that. the application
was opposed. The matter must have been referred to the Governor-General, because
on September 10, 1951, the Secretary to the Government of India, Ministry of
Food and Agriculture, conveyed to the Chief Commissioner the intimation that
the President of India was pleased to confirm the adoption.
Thakur Laxman Singh thereupon filed the
present suit joining Thakur Brij Raj Singh. Rani Bagheliji of Sawar and Inder
Singh of Rudh as defendants. Two reliefs, among others, were claimed. These
were:"That it may be declared:(a) that Deft No. 1 was not adopted as a
fact by Deft No. 2 and is not her adopted son and in the alternative, the
adoption of Defendant No. 1 by Deft No.
2 is invalid and illegal; and (b) that
plaintiff is the nearest kin and heir to late Th. Banspradip Singh." The
learned Subordinate Judge did not frame issues bearing upon these reliefs, but
framed a preliminary issue:
"Is the suit barred by ss. 24 and 119 of
the Ajmer Land and Revenue Regulation of 1877 ?" He held that the two
sections barred the suit and dismissed it with costs. On appeal to the Judicial
Commissioner at Ajmer, the judgment of the Senior Subordinate Judge was
reversed. The learned Judicial Commissioner was then moved by Thakur Brij Raj
Singh and Rani Bagheliji Singh for a certificate under Arts. 133 (1) (a) and
(c) of the Constitution, 619 which he declined because, in his opinion, his
judgment was not final. This Court was then moved for special leave, which was
granted, and the present appeal has been filed.
We are concerned in this appeal with the
interpretation of ss. 23, 24 and 119 of the Regulation in the light of the
pleadings and the nature of the claim. Before we set out these sections, we
wish to examine generally some other provisions of the Regulation bearing upon
this matter. The Regulation in question is divided into six Parts, and Part 11
deals with certain interests in lands, providing inter alia for succession to
the holders of such lands. Part 11 is itself divided into nine sections, and
Section C deals with Istimrari estates. Section 20 defines an " Istimrari
estate " as one in respect of which an Istimrari sanad has been granted by
the Chief Commissioner with the previous sanction of the
Governor-General-in-Council before the passing of the Regulation. The section
has been amended by the Adaptation Orders subsequently passed, in a manner now
very familiar An " istimrardar " is defined to mean a person to whom
such sanad has been granted or " any other person who becomes entitled to
the istimrari estate in succession to him as hereinafter provided ". Rules
of succession are to be found in ss. 23 and 24. Section 23 provides for
succession to the estate where there is male issue, and s. 24, when there is no
such male issue. The remaining sections of Section C deal with tenants,
alienation, maintenance, expropriation etc., with which we are not concerned.
In this way, the succession to an Istimrari estate is governed by ss. 23 and
24, and any dispute arising in respect of succession has to be resolved as
provided in those sections.
Section 23 reads as follows:
"Succession to estate where there is
made issue When an Istimrardar dies leaving sons or male issue descended from
him through males only whether by birth or adoption or when after the death of
an Istimrardar his widow has power to adopt and adopts a son to him, the
istimrari estate shall devolve as nearly as may be according to the custom of
the family of the deceased:
620 Provided1st, Rule of Primogeniture.-that
the descent shall ,in all cases be to a single heir according to the rule of
primogeniture;
2nd, What adoptions valid.-that no adoption
"shall be deemed valid unless it is made by a written document deposited
with the Collector or the Registrar of the district;
3rd, Adoption by widow.-that no adoption made
by a widow shall be deemed valid until confirmed by the Central
Government." The contention of the rival parties is as to the interpretation
which is to be placed upon the third proviso, taken with the opening words of
the section. One side contends that after the confirmation of the adoption, no
dispute remains which can go to a Civil Court, in view of the bar contained in
s. 119, to which we shall refer presently. The other side contends that in view
of the opening words of s. 24, a question under s. 23 can be taken to a Civil
Court for adjudication, and that a. 119 does not bar such a suit. Sections 24
and 119 may now be quoted:
" 24. Succession to estate when there is
no male issue:-Any question as to the right to succeed to an istimrari estate
arising in a case not provided for by section 23 shall be decided by the
Central Government, or by such officer as it may appoint in this behalf :
Provided that the Central Government, if it
thinks fit, instead of deciding such question itself or appointing any officer
to decide the same, may grant to any person claiming to succeed as aforesaid a
certificate declaring that the matter is one proper to be determined by a Civil
Court.
The person to whom such certificate is
granted may institute a suit to establish his right in any Court otherwise
competent under the law for the time being in force to try the same, and such
Court may, upon the production of such certificate before it, entertain such
suit.
119. Except as hereinbefore expressly
provided,-(a) Proceedings under Regulation not to be in621 peached--everything
done, ordered or decided by the Central Government, State Government or a
Revenue officer under this Regulation, shall be deemed to have been legally and
rightly done, ordered or decided;
(b) Limitation of jurisdiction of Civil
Courts.-no Civil Court shall entertain any suit or application instituted or
presented with a view to obtaining any order or decision which the Central
Government, the State Government or a Revenue Officer is under this Regulation
empowered to make or pronounce." Before we consider these sections, it is
necessary to examine briefly the nature of the case, because ss. 23 and 24
contemplate different kinds of cases. The main reliefs which have been claimed
have been set out by us earlier. It will be noticed that two declaratory
reliefs have been claimed. The first, which is in two parts, is that Thakur
Brij Raj Singh was not adopted by Rani Baheliji, and that the adoption was
invalid and illegal. This is a matter which falls within s. 23 and not s. 24.
The second relief is for a declaration that the plaintiff is the nearest kin
and heir to late Thakur Banspradip Singh. If Thakur Banspradip Singh left no
male issue either by birth or by adoption, then the matter of succession is
prima facie governed by s. 24. That section requires that such a dispute shall
be decided by the Central Government or an officer appointed in this behalf
There is, however, a proviso that the Central Government may, instead of
deciding such question itself or appointing any officer to decide the same,
grant to any person claiming to succeed as aforesaid, a certificate declaring
that the matter is one proper to be determined by a Civil Court. Ex facie,
therefore, if the matter fell only within s. 24, the plaintiff could not have
filed a suit without a certificate as contemplated. We are not required to
express any opinion upon the merits of any contention that may hereafter be
presented to the Courts for their decision, because the matter is at a stage
prior to that when such pleas can properly be raised. The third relief
originally claimed a perpetual injunction against Thakur Brij Raj Singh who,
622 should the question of adoption be decided against him, would have had to
fight the original dispute, for which a notice under s. 24 of the Regulation
had been issued. A third relief of injunction was deleted When an amended
plaint was filed in the suit.
Section 24 of the Regulation excludes from
its operation cases falling within s. 23. Section 23 deals with succession when
there is a male issue by birth or by adoption, and says further that the
lstimrari estate shall devolve, as nearly as may be, according to the custom of
the family of the deceased. To find out the rightful heir, it may be necessary
to examine what the family custom is. That enquiry is taken out of s. 24 by the
opening words of that section. No other forum is indicated for the solution of
any dispute that might arise between rival claimants, or where there is a
pretender seeking to succeed to the deceased Istimrardar as a male issue. Such
a dispute, should one arise, would go before a Civil Court, the jurisdiction of
which, as has been said on more than one occasion, is not taken away, unless so
expressed by the law or clearly implied by it. There are no express words in s.
23 excluding the jurisdiction of the Civil
Court, and the question to consider is whether there is anything which by its
clear intendment reaches the same result.
According to the appellants, the third
proviso to s. 23 requires that a widow making an adoption should obtain
confirmation from the Central Government, and since the Central Government in
considering the matter has to reach a decision on two points, namely' that the
widow had the power to adopt and had, in fact, adopted a son to the deceased,
they must be taken to have been decided by the Central Government when the
confirmation of the adoption was made, and in view of the first clause of s.
119, this is something " done, ordered or decided by the Central
Government ", which must " be deemed to have been legally and rightly
done, ordered or decided ". Reference is also made to the fact that when
the adoption deed was first brought to the notice of the Chief Commissioner and
its confirmation was sought, the 623 opposite parties had opposed the request.
It is, therefore, argued by the appellants that the confirmation having been
granted, there is no dispute remaining in the case and none for the Civil Court
to decide.
In this connection, it is interesting to see
ss. 33 and 34, which deal with succession to 'Bhum', which., means land in
respect of which a Bhum sanad may have been granted.
Section 33 reads as follows:
" Succession to Bhum where there is male
issue.When a Bhumia dies leaving sons, or male issue descended from him through
males only, whether by birth or adoption, or when after the death of a Bhumia
his widow has power to adopt and adopts a son to him, the Bhum shall devolve
according to the custom of the family." Section-34, which corresponds to
s. 24, is ipsissima verba, except that " Bhum " replaces an "
Istimrari estate ". If ss. 33 and 34 are read together, it cannot be
questioned that a matter which falls within s. 33 is excerpted from the
operation of s. 34, and that a suit is not affected by reason of the opening
words of the latter section. Now, s. 23 may be contrasted with s. 33.
The difference between s. 23 and s. 33 is
only this that in the former section three conditions are mentioned. By the
first condition, the law of primogeniture is made applicable, by the second
condition, a deed in writing deposited with the Collector or the Registrar of
the district is required, and by the third, confirmation of the adoption, in
the case of an adoption by a widow, by the Central Government has to be
obtained. In our opinion, matters within s. 23 can also go before a Civil Court
in the same way as under s. 33. The last two provisos to s. 23 create two
conditions which the widow must fulfill, before an adoption by her can ever be
considered valid. An adoption to be valid must comply with the requirements of
Hindu law, and the legislature has added two other conditions.
These conditions merely say that no adoption
" shall be deemed valid " unless they are also complied with. The
first condition is that the 80 624 adoption must be by a written document,
which is deposited with the Collector or the Registrar of the district, and the
second is that it must be confirmed by the Central Government. The deposit of
the deed, as required, cannot validate an otherwise invalid adoption. The
confirmation also does not, by itself, confer validity upon the adoption if it
be otherwise invalid under the general law, but only fulfill a condition
created by the legislature. If that lacuna remains, the adoption cannot-be
considered valid, even though it may be valid from every other point of view.
It is important to notice that the proviso is
expressed in the negative. It does not say that on confirmation by the Central
Government, the adoption shall be deemed to be valid. While the adoption
without confirmation cannot be deemed valid, an adoption confirmed by the
Central Government is still open to attack on grounds other than those
connected with the confirmation.
The appellants argue that the validity of the
adoption cannot be questioned after its confirmation, because of s.
119 of the Regulation. Section 119 merely
leaves out anything done, ordered or decided by the Central Government from
judicial scrutiny. The heading of the section very clearly brings out the
import of the first clause, and it is that proceedings under the Regulation are
not to be impeached. The only thing done, ordered or decided is the
confirmation, and though the confirmation cannot be impeached, anything that
happens prior to the initiation of the proceedings for confirmation is not
protected. When the confirmation proceedings start, the party seeking
confirmation goes to the Central Government with a fact accompli, and though
the Central Government may satisfy itself, the decision to grant confirmation
does not imply an ouster of the jurisdiction of the Civil Courts to examine the
facts and the acts of parties, which preceded the proceedings for confirmation.
The legislature in s. 23 has not said this either expressly or by necessary
implication.
That the widow must have the power to adopt
and must, in, fact, adopt a son are matters which may enter into 625
consideration for purposes of confirmation ; but the validity of the adoption
is still a matter, which the Civil Court can consider, there being no words
clear or implied by which the validity of the adoption is conclusively
established. The force of the first clause of s. 119 is merely to sustain the
confirmation as something done, ordered or decided by the Central Government,
which must be deemed to have been legally and rightly done, ordered or decided.
It has no bearing upon the adoption, because that was not something done,
ordered or decided by the Central Government under the Regulation.
The second clause of s. 119 which limits the
jurisdiction of the Civil Court in some respects is also not applicable.
That clause has already been quoted earlier.
The first issue in the suit does not involve the obtaining of any order or
decision which the Central Government is, under the Regulation, empowered to
make or pronounce. The Central Government has confirmed the adoption. The suit
is not to obtain confirmation from a Civil Court but to get the adoption
declared invalid. The plaintiff in the case is not seeking to obtain an order
from the Civil Court, which the Regulation empowers the Central Government to
make. The Central Government is empowered to make an order of confirmation, but
such an order is not being sought in the suit. What is being sought is an
examination of the validity of the adoption, and that, as we have already shown
above, is not a matter on which the decision of the Central Government has been
made conclusive.
In our opinion, therefore, the suit in
respect of the first relief is within the jurisdiction of the Civil Court. The
second relief attracts prima facie s. 24, and must comply with its conditions.
The suit has thus to go on. The order of the Judicial Commissioner, in the
circumstances of the case, was correct, and we see no reason to differ from it.
In the result, the appeal fails, and will be
dismissed with costs.
626 S. K. DAS J.-With very great regret I
have come to a conclusion different from that of my learned ,brethren on the
issue whether the suit is barred under the provisions of s. 119 of the Ajmer
Land and Revenue Regulation, 1877 (Regulation no. 11 of 1877), hereinafter referred
to as the Regulation. My conclusion is that the suit is barred and I proceed to
state shortly the reasons for which I have arrived at that conclusion.
The relevant facts have been stated in the
judgment just pronounced on behalf of my learned brethren, and it is not
necessary to restate them. I need only add that the plaintiff, now respondent
no. 1 before us, bad brought the suit for a declaration that defendant no. 1
(now appellant no. 1) was not adopted as a fact by defendant no. 2 (now
appellant no. 2); that the adoption even if established as a fact was invalid
and illegal; that respondent no. 1 was the nearest of kin and heir to Thakur
Banspradip Sing and as such entitled to succeed to the estate of Sawar and all
properties and assets left by the latter ; that appellant no. 1 be restrained
perpetually from interfering and intermeddling with the estate of Sawar; and
that a receiver be appointed of the estate of Sawar and all its assets,
moveable and immoveable. The plaint was subsequently amended and the reliefs
for permanent injunction and declaration that respondent no. 1 was entitled to
succeed to the estate of Sawar were given up, presumably because a suit for
such reliefs would be clearly barred under s. 24 of the Regulation. What now
falls for consideration is whether the suit, even on the amended plaint, is
barred under the provisions of s. 119 read with s. 23 of the Regulation.
It is necessary to read now some of the
relevant provisions of the Regulation. Section 20 defines an " istimrari
estate " and it is not disputed that the estate of Sawar is such an
estate. Section 21 defines the status of tenants in an " istimrari estate
". Section 22 deals with alienation of such estate, and then comes s. 23
which must be read in full:
" S. 23. Succession to estate where
there is mate issue:
When an Istimrardar dies leaving sons or male
627 issue descended from him through males only whether by birth or adoption or
when after the death of an Istimrardar his widow has power to adopt and adopts
a son to him, the istimrari estate shall devolve as nearly as may be according
to the custom of the family of the deceased Provided1st, Rule of
primogeniture-that the descent shall in all cases be to a single heir according
to the rule of primogeniture;
2nd, What adoptions valid-that no adoption
shall be deemed valid unless it is made by a written document deposited with
the Collector or the Registrar of the district ;
3rd, Adoption by widow-that no adoption made
by a widow shall be deemed valid until confirmed by the Central
Government." Section 24 says:
" S. 24. Succession of estate when there
is no male issue:
Any question as to the right to succeed to an
istimrari estate arising in a case not provided for by section 23 shall be
decided by the Central Government, or by such officer as it may appoint in this
behalf.
Provided that the Central Government, if it
thinks fit, instead of deciding such question itself or appointing any officer
to decide the same, may grant to any person claiming to succeed as aforesaid a
certificate declaring that the matter is one proper to be determined by a Civil
Court.
The person to whom such certificate is
granted may institute a suit to establish his right in any Court otherwise
competent under the law for the time being in force to try the same, and such
Court may, upon the production of such certificate before it, entertain such
suit." Skipping over provisions which are not directly relevant for the
consideration of the point before us, I come to s. 119 which is in these terms:
" S. 119. Except as hereinbefore
expressly provided628 (a) Proceedings under Regulation not to be impeached
:--everything done, ordered, or decided bythe Central Government, State
Government or a Revenue officer under this Regulation, shall be deemed to have
been legally and rightly done or ordered or decided;
(b) Limitation of jurisdiction of Civil
Courts-no Civil Courts shall entertain any suit or application instituted or
presented with a view to obtaining any order or decision which the Central
Government, the State Government or a Revenue officer is under this Regulation
empowered to make or pronounce ".
The question for decision is whether the suit
is barred under the provisions of s. 119 read with s. 23 of the Regulation. The
Senior Subordinate Judge who tried this preliminary issue held that the suit
was barred; the learned Judicial Commissioner on appeal came to a contrary
conclusion. The answer to the question depends on the true scope and effect of
the provisions of the two aforesaid sections. I proceed on the footing that the
general rule of law is that when a legal right and an infringement thereof are
alleged, a cause of action is disclosed and unless there is a bar to the
entertainment of a suit, the ordinary civil courts are bound to entertain the
claim. The bar maybe express or-by necessary implication. On a proper
construction, do ss. 23 and 119 of the Regulation raise such a bar ? In my
view, they do. The substantive part of s. 23, in so far as it is relevant to
the point under consideration, refers to two facts: (1) the widow has power to
adopt, and (2) she has in fact adopted a son to the late istimrardar.
On these two facts being present, s. 23 in
its substantive part says that the estate shall devolve as nearly as may be
according to the custom of the family of the deceased. The substantive part is
followed by three provisos; we are concerned only with the third proviso, which
says that no adoption made by a widow shall be deemed valid until confirmed by
the Central Government. Such an order of confirmation was made in the present
case. The proviso is expressed in the form of a double negative, and put in the
affirmative form, it means that an 629 adoption made by a widow shall be valid,
for the purpose of s. 23, when it is confirmed by the Central Government. From
one point of view, it is an additional condition and from another point of
view, it embraces within itself a determination of the power to adopt and the
factum of adoption; for obvious reasons, there cannot be an order of
confirmation in vacuum. There must be an adoption before it can be confirmed.
In my opinion, the third proviso must be read with and in the context of the
substantive provision of s. 23 in order to appreciate the true meaning and
content of the confirmation order. In confirming the adoption', the Central
Government (previously the Governor-General) must consider the two preliminary
facts, (1) whether the widow has power to adopt and (2) whether she has in fact
adopted a son to the late istimrardar. The confirmation referred to in the
third proviso necessarily involves a determination of these two facts. Divorced
from these two facts the confirmation has no meaning and no intelligible
content. The facts of this case also clearly show that on a notice under s. 24,
several claimants put forward their claims: the widow then adopted appellant
no. 1 and an application was made for confirmation. This application was
opposed and after an enquiry made, the ]President was pleased to confirm the
adoption. Respondent no. 1 moved the President for a reconsideration of the
order confirming the adoption and was then informed that the President saw no
reasons to revise the order of confirmation.
If I am right in my view that the order of
confirmation takes in the two preliminary facts, then s. 119 makes it quite
clear that no suit lies to obtain a decision contrary to the order of
confirmation. Under el. (a) of s. 119 the order of confirmation involving, as
it does in my view, the determination of the two preliminary facts shall be
deemed to have been legally and rightly done; and under el. (b) no suit shall
lie to challenge that determination. The words " legally " and "
rightly " are important. The word 'legally' means that the order is made
validly under law; rightly ' means that it is factually correct and proper.
630 Therefore, the critical question is-what
does the order of confirmation referred to in the third proviso to s. 23
involve or embrace? Does it involve a determination of the two facts-(1) power
to adopt and (2) the factum of adoption ? If it does and I think it does, then
s. 119 bars the present suit.
It seems to me, and I say this with great
respect, that any other view will make the third proviso to s. 23 completely
pointless. Sections 23 and 24 cover the entire field of succession to an
istimrari estate. Under s. 24 any question as to the right to succeed to an
istimrari estate arising in a case not provided for by s. 23, shall be decided
by the Central Government subject to the proviso thereto. The power of the
Central Government under s. 24 is unfettered.
If inspite of an order of confirmation of the
adoption by a widow made under the third proviso to s. 23 a suit lies to
challenge the adoption, what happens when the civil court holds the adoption to
be invalid ? It is conceded that the confirmation as such cannot be challenged
that order must remain. Does the case then come under s. 23 or s. 24 ? If it
comes under s. 24, the Central Government again has to decide the question of
succession. If the Central Government does not ignore its own order of
confirmation, the result will be a stalemate. Reading ss. 23 and 24 together, I
do not think that it was intended that inspite of the order of confirmation of
an adoption by the widow a suit will lie to challenge the adoption the result
of which may be to nullify the effect of the confirmation order.
Nor do I think that ss. 33 and 34 relating to
Bhum lands are in point. Section 33 has no proviso like the third proviso to s.
23, which confirms the adoption by a widow. The whole matter is left at large
under s. 33, and s. 119 creates no bar with reference to that section.
There was some argument before us as to
whether the suit related to properties not part of the istimrari estate. No
such point appears to have been agitated before the learned Subordinate Judge
and so far as I can make out from the amended plaint, the suit 631 related to
the istimrari estate and the properties thereof, moveable and immoveable.
There was also an application to urge a
constitutional point to the effect that if s. 119 is so construed as to bar a
suit like the one in the present case, then it is violative of Art. 14 of the
Constitution. This point was notpressed before us ; therefore, it is
unnecessary to explain the nature and incidents of these istimrari estates and
the reasons for the classification made. The argument before us proceeded on a
pure question of construction, and I have addressed myself to that question
only.
For the reasons already given, I hold that on
a proper construction of ss. 23 and 119 of the Regulation, the present suit is
barred. I would, accordingly, allow the appeal and dismiss the suit with costs.
BY COURT: In accordance with the majority
Judgment of the Court, the appeal is dismissed with costs.
Appeal dismissed.
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