Rajkumar Narsingh Pratap Singh Deo Vs.
State of Orissa & ANR  INSC 63 (9 March 1964)
09/03/1964 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
AYYANGAR, N. RAJAGOPALA SIKRI, S.M.
CITATION: 1964 AIR 1793 1964 SCR (7) 112
R 1964 SC1903 (17) R 1966 SC 704 (5,10) R
1971 SC 846 (9) APL 1971 SC 910 (5) R 1977 SC 629 (14) R 1987 SC 82 (7)
Khorposh Allowance-Sanad granted by Ruler of
StateDiscontinuance of cash allowance by Government of Orissa after merger-Validity-Sanad,
if law or executive actConstitution of India, Arts. 366(10), 372-Order 31 of
1948 issued by Government of Orissa, cl. 4(b).
The Ruler of Dhenkanal State granted a sanad
by way of Khorposh allowance to his younger brother, the appellant giving
certain lands and a maintenance allowance, under the customary law of the
State. After the merger of that State to the Dominion of India which became
effective on January 1, 1948, the Government of Orissa took over the
administration of the State and discontinued the cash allowance. The appellant
challenged the validity of the order of discontinuance by a suit in the Court
of Subordinate Judge. The suit was dismissed. On appeal to this Court it was
urged on behalf of the appellant that the sanad issued by an absolute monarch
was law, and was continued by Arts. 366(10), 372(1) of the Constitution and cl.
4(b) of the Order 31 of 1948 issued by the Orissa Government in exercise of the
power delegated to it by the Central Government under s. 3(2) of the Extra Foreign
Jurisdiction Act, 1947.
Held: (i) It was not correct to say that in
dealing with a grant made by an absolute monarch any enquiry as to whether the
grant was the result of an executive or legislative act was altogether
irrelevant. This Court did not lay down any inflexible rule that the
well-recognised jurisprudential distinction between legislative and executive
acts was wholly irrelevant or inapplicable to such a case.
Ameer-un Nissa Begum v. Mahboob Begum, A.I.R.
1955 S.C. 352, Director of Endowments, Government of Hyderabad v. Akram Ali,
A.T.R. 1956 S.C. 60, Madhaorao Phalke v. State of Madhya Bharat,  1
S.C.R. 957, Promode Chandra Deb v.
State of Orissa,  Supp. 1 S.C.R. 405,
Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan,  1 S.C.R.
561, Maharaja Shree Umaid Mills Ltd. v. Union
of India, A.I.R. 1963 S.C. 953 and State of Gujarat v. Vora Fiddali Badruddin
Nithibarwala,  6 S.C.R. 461, considered.
In such an enquiry it was necessary to
consider such relevant factors as the nature of the order, its scope and
effect, general setting and context and the method adopted by the Ruler in
So judged, the Sanad in question had no
legislative element in any of its provisions and was a gift pure and simple
made in pursuance of the custom of the family and customary law of the State.
The gift therefore, was an executive act of
the Ruler and did not amount to law although the Ruler was discharging by it
his obligation under personal or customary law.
113 The gift being an executive act of the
Ruler could be modified or cancelled by an executive act of the successor to
the Ruler. The discontinuance of the cash allowance could not affect the
continuance of the customary law under cl. 4(b) of the Order of 1948 and Art.
372 of the Constitution. Nor could the plea of payment of such allowance even
after the merger invalidate the discontinuance.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 133 1963.
Appeal from the judgment and decree dated
November 17, 1960, of the Orissa High Court in First Appeal No. 45 of 1955.
M. C. Setalvad, R. K. Garg, M. K. Ramamurthi,
D. P. Singh and S. C. Agarwala, for the appellant.
S. V. Gupte, Additional Solicitor-General of
India, Ganapathy Iyer and R. H. Dhebar, for the respondents.
March 9, 1964. The judgment of the Court was
delivered by GAJENDRAGADKAR, C.J.-The principal point of law, which arises in
this appeal is whether the Sanad issued in favour of the appellant, Rajkumar
Narsingh Pratap Singh Deo, by his elder brother, the Ruler of Dhenkanal State,
on March 1, 1931, is existing law within the meaning of Art. 372 of the
Constitution read with cl. 4(b) of Order No. 31 of 1948 issued by the
respondent State of Orissa on January 1, 1948.
This question arises in this way. The State
of Dhenkanal which was an independent State prior to 1947 merged with the
Province of Orissa in pursuance of a Merger Agreement entered into between the
Ruler of Dhenkanal and the Dominion of India on December 15, 1947. This
Agreement came into force as from January 1, 1948. In consequence of this
Agreement the entire administration of the State of Dhenkanal was taken over by
the State of Orissa pursuant to the authority conferred on it by the Central
Government under s. 3(2) of the Extra Foreign Jurisdiction Act, 1947 (No. 47
-of 1947). After the Sanad in question -was issued in favour of the appellant,
be was getting a monthly allowance of Rs. 5001from the Dhenkanal District
Treasury on the authority of a permanent Pay Order which had been issued in his
favour by the Ruler of Dhenkanal on the basis of the said Sanad. This payment
was discontinued by the respondent from 1st of May, 1949 and the several
representations made by the appellant to the various authorities of the
respondent to reconsider the matter failed. That is why lie filed the present
suit on September 26, 1951 in the Court of the subordinate Judge, Dhenkanal,
alleging that the act of discontinuing the appellant's pension was illegal, and
asking for appropriate reliefs in that behalf. It is from this suit that the
present appeal arises.
114 The appellant's case is that in the
family of the appellant, it has been recognised as a customary right of the
junior members of the family to receive adequate maintenance consistently with
the status of the family. Indeed, the appellant's allegation is that this
custom was recognised in Dhenkanal and enforced as customary law in the State.
The grants made to the members of the Royal Family for their maintenance
consisted of lands and cash allowances. These latter were described as Kharposh
allowances and they were charged and paid out of the revenue of the former
State of Dhenkanal. It was in accordance with this customary law that the Sanad
in question was issued by the Ruler of Dhenkanal in favour of the appellant. By
this Sanad, certain lands were granted to the appellant and a cash allowance of
Rs. 5001per month was directed to be paid to him for life. The appellant's
grievance is that this ,-rant of Rs. 5001allowance has been discontinued by the
respondent and that, according to the appellant, is an illegal and
unconstitutional act. In support of his plea that the respondent was bound to
continue the payment of the cash allowance, the appellant urged in his suit
that the grant was a law within the meaning of Art. 372 and as such, it had to
be continued. He also alleged that after the merger of Dhenkanal with Orissa,
his right to receive the grant was recognised by the respondent and acted upon;
and that is another reason why he claimed an appropriate relief in, the form of
an injunction against the respondent.
Several other pleas were also taken by the
appellant in support of his claim, but it is not necessary to refer to them for
the purpose of the present appeal.
The respondent denied the appellant's claim
and urged that having regard to the nature of the grant on which the appellant
has rested his case, it was competent to the respondent to discontinue the
grant. The grant in question is not law under Art. 372 and just as it could be
made by the Ruler in 1931 by an executive act, it can be discontinued by the
respondent by a similar executive act since the respondent is the successor of
the Ruler. It was also urged by the respondent that the appellant's allegation
that the respondent had recognised and agreed to act upon the grant of cash
allowance, was not well-founded. Both the learned trial Judge who tried the
appellant's case, and the High Court of Orissa before which the appellant took
his case in appeal, have, in the main, rejected the appellant's contention,
with the result that the appellant's suit has been dismissed. The appellant
then applied for and obtained a certificate from the High Court and it is with
the certificate thus granted to him that he has come to this Court in appeal.
The first and the main point which Mr.
Setalvad for the appellant has urged before us is that the Sanad on which the
appellant's claim is founded, is law. At the time when the 115 Senad was
granted, the Ruler of Dhenkanal was an absolute monarch and in him. vested full
sovereignty; as such absolute sovereign, he was endowed with. legislative,
judicial and executive powers and authority and whatever order tie passed
amounted to law. In the case of an absolute monarch whose' word is literally
law, it would be idle, says Mr. Setalvad, to distinguish between binding orders
issued by him which are legislative from other binding orders which are
executive or administrative. All binding orders issued by such a Ruler are, on
the ultimate analysis, law, and the Sanad in question falls under the category
of such law.
In support of this argument, Mr. Setalvad has
referred Lis to the definition of the words "existing law" prescribed
by Art. 366(10) of the Constitution. Art. 366(10) provides that "existing
law" means any law, ordinance, order, byelaw, rule or regulation passed or
made before the commencement of this Constitution by any Legislature, authority
or person having power to make such a, law, ordinance, order, bye-law, rule or
regulation. Basing himself on this definition, Mr. Setalvad also relies on the
provisions of Art. 372(1) which provides for the continuance in force of
existing laws; this continuance is, of course, subject to the other provisions
of the Constitution and it applies to such laws as were in force in the territory
of India immediately before the commencement of the Constitution, until they
are altered, repealed or amended by a, competent Legislature or other competent
These provisions are invoked by Mr. Setalvad
primarily by virtue of cl. 4(b) of Order 31 of 1948 issued by the respondent on
the 1st of January, 1948. It is well-known that by s.3(1) of the Extra Foreign
Jurisdiction Act, the Central Government was given very wide powers to exercise
extra provincial jurisdiction in such manner as it thought fit. Section 3(2)
provided that the Central Government may delegate any such jurisdiction as
aforesaid to any officer or authority in such manner and to such extent as it
thinks fit. The width of the powers conferred on the Central Government can be
properly appreciated if the provisions of s. 4 are taken into account. Under s.
4(1), the, Central Government was authorised by notification in the Official
Gazette to make such orders as may seem to it expedient for the effective
exercise of the extra foreign jurisdiction of the Central Government. Section
4(2) indicates by cls. (a) to (d) the categories of orders which can be passed
by the Central Government in exercise of its jurisdiction. The sweep of these
powers is very wide and they had to be exercised in the interests of the proper
governance of the areas to which the said Act applied. Under s. 3(2), the
Central Government bad delegated its powers to the Province of Orissa in
respect of States which had merged with it, and it was in exercise of its
powers as such delegated that Order 31 of 1948 116 was issued by the Province
of Orissa (now the respondent).
Cl. 4 of the Order dealt with the question of
the laws to be applied to the merging areas. Cl. 4(a) referred to the
enactments specified in the first column of the Schedule annexed to the Order
and made them applicable as indicated in it. Cl. 4(b) provided that as respects
those matters which are not covered by the enactments applied to the Orissa
States under sub-para (a), all laws in force in any of the Orissa States prior
to the commencement of this Order, whether substantive or procedural and
whether based on custom and usage, or statutes, shall, subject to the
provisions of this Order, continue to remain in force until altered or amended
by an Order under the Extra, Provincial Jurisdiction Act, 1947. There is a
proviso to this sub--clause to which it is unnecessary to refer. The argument
is that by virtue of cl. 4(b) of this Order, the customary law prevailing in
the State of Dhenkanal prior to its merger continued to operate as law in the
territory of Dhenkanal and that is how it is operative even now, because it has
not been repealed or amended. Since the Sanad issued in favour of the appellant
is, according to the appellant's case, law, there would be no authority in the
respondent to cancel the payment of cash allowance to the appellant merely by
an executive order. If the respondent wants to terminate the payment of the
cash allowance to the appellant, the only way which the respondent can
legitimately adopt is to make a law in that behalf, or issue an order under cl.
4(b) of the Order. That, broadly stated, is the argument which has been pressed
before us by Mr. Setalvad.
We do not think that the basic assumption
made by Mr. Setalvad in presenting this argument is sound. It would be noticed
that the basic assumption on which the argument is based is that in the case of
an absolute monarch, there can be no distinction between executive and
In other words, it is assumed that all orders
which are passed by an absolute monarch, are binding, and it is idle to enquire
whether they are executive or legislative in character, because no such
distinction can be made in regard to orders issued by an absolute monarch. It
is true that the legislative, executive and judicial powers are all vested in
an absolute monarch; he is the source or fountain of all these powers and any
order made by him would be binding within the territory under his rule without
examining the question as to whether it is legislative, executive or judicial;
but though all the three powers are vested in the same individual, that does
not obliterate the difference in the character of those powers. The
jurisprudential distinction between the legislative and the executive powers
still remains, though for practical purposes, an examination about the
character of these orders may serve no useful purpose. It is not as if where
absolute monarchs have sway in 117 their kingdoms, the basic principles of
jurisprudence which distinguish between the three categories of powers are
inapplicable. A careful examination of the orders passed by an absolute monarch
would disclose to a jurist whether the power exercised in a given case by
issuing a given order is judicial, legislative, or executive, and the
conclusion reached on jurisprudential grounds about the nature of the order and
the source of power on which it is based would nevertheless be true and
correct. That, indeed, is the approach which must be adopted in considering the
question as to whether the grant in the present case is law within the meaning
of Art. 372 as well as cl. 4(b) of Order 31 of 1948; and so, prima facie, it
does not seem sound to suggest that in the case of an absolute monarch, that
branch of jurisprudence which makes a distinction between three kinds of power
is entirely inapplicable.
In dealing with this aspect of the matter, it
is hardly necessary to examine and decide what distinguishes a law from an
executive order. A theoretical or academic discussion of this problem would not
be necessary for our present purpose, because all that we are considering at
this stage is whether or not it would be possible to consider by reference to
the character of the order, its provisions, its context and its general setting
whether it is a legislative order or an executive order. Though theorists may
not find it easy to define a law as distinguished from executive orders, the
main features and characteristics of law are well recognised. Stated broadly, a
law generally is a body of rules which have been laid down for determining
legal rights and legal obligations which are recognised by courts.
In that sense, a law can be distinguished
from a grant, because in the case of a grant, the grantor and the grantee both
agree about the making and the acceptance of the grant;
not so in the case of law. Law in the case of
an absolute monarch is his command which has to be obeyed by the citizens
whether they agree with it or not. Therefore, we are inclined to hold that Mr.
Setalvad is not right in making the unqualified contention that while we are
dealing with a grant made by absolute monarch, it is irrelevant to enquire
whether the grant is the result of an executive action, or a legislative
action. On Mr. Setalvad's contention, every act of the absolute monarch and
every order passed by him would become law though the act or order may have
relation exclusively to his personal matters and may have no impact on the public
at large. That is why it is unsound to suggest that the jurisprudential
distinction between orders which are judicial, executive or legislative or in
relation to purely individual and personal matters should be treated as
irrelevant in dealing with Acts or orders passed even by an absolute monarch.
Realising the difficulty in his way, Mr.
Setalvad has strongly relied on certain decisions of this Court which,
according to him, support the broad point which he has raised before 118 us. It
is, therefore, necessary to examine these decisions.
The first case on which Mr. Setalvad relies
is that of Ameer-unNissa Begum v. Mahboob Begum(1). In that case, this Court
was called upon to consider the validity 'of the Firman issued by the Nizam of
Hyderabad on the 19th February, 1939, by which a Special Commission had been
constituted to investigate and submit a report to him in the case of succession
to a deceased Nawab which was transferred to the commission from the file of
Darul Quaza Court.
Dealing with the question as to whether the
Firman in question was passed by the Nizam in exercise of his legislative power
or judicial power, Mukherjea, C.J., speaking for the Court, observed that the
Nizam was the supreme legislature, the supreme judiciary and the supreme head
of the executive and there were no constitutional limitations upon his
authority to act in any 'of these capacities. He also observed that the Firmans
were expressions of the sovereign will of the Nizam and they were binding in
the same way as any other law; therefore so long as a particular firman held
the field, that alone would govern or regulate the rights of the parties
concerned, though it could be annulled or modified by a later Firman at any
time that the Nizam willed. It appears, however, that the learned counsel
appearing in that case did not argue this point, and so, the question as to
whether it would be possible or useful to draw a line of demarcation between a
Firman which is legislative and that which is executive, was neither debated before
the Court, nor has it been examined and decided as a general proposition of
In The Director of Endowments, Government of
Hyderabad v. Akram Ali(2), similar observations were repeated by Bose, J., who
spoke for the Court on that occasion. Dealing with the Firman issued by the
Nizam on the 30th December, 1920, which directed the Department to supervise
the Dargah until the rights of the parties were enquired into and decided by
the Civil Court, it was 'observed that the Nizam was an absolute sovereign
regarding all domestic matters at the time when the Firman was issued and his
word was law. That is bow the validity of the Firman was not questioned and it
was held that its effect was to deprive the respondent before the Court and all
other claimants of all rights to possession pending enquiry of the case. In
this case again, as in the case of Ameer-un-Nissa Begum(1), the point does not
appear to have been argued and the observations are, therefore, not intender to
lay down a broad or general proposition as contended by Mr. Setalvad.
That takes us to the decision in the case of
Madhaorao Phalke v. The State of Madhya Bharat(3). On this occasion, This Court
was called upon to consider the question as to (1) A.I.R. 1955 S.C. 352.
(2) A.I.R. 1956 S.C. 60 (3)  1 S.C.R.
119 whether the relevant Kalambandis issued
by the Ruler of Gwalior constituted law, 'or amounted merely to executive
orders. In the course of the judgment, the passages in the two cases to which
we have just referred were, no doubt, quoted; but the ultimate decision was
based not so much on any general ground as suggested by Mr. Setalvad, as on the
examination of the character of the Kalambandis themselves and other' relevant
factors. If Mr. Setalvad's argument be well-founded and the Kalambandis had to
be treated as law on the broad ,-round that they were orders issued by an
absolute monarch, it would have been hardly necessary to consider the scope and
effect of the Kalambandis, the manner in which they were passed, and the object
and effect of their scheme. In fact, these matters were considered in the
judgment and it was ultimately held that "having regard to the contents of
the two orders and the character of the provisions made by them in such a
detailed manner, it is difficult to distinguish them from statutes or laws; in
any event, they must be treated as rules or regulations having the force of
law". That was the finding made by the High Court and the said finding was
affirmed by this Court.
Therefore, though this judgment repeated the
general observations made by this Court on two earlier occasions, it would be
noticed that the decision was based not so much on the said observations, as on
a careful examination of the provisions contained in the Kalambandis themselves.
In Promod Chandra Deb v. The State of
Orissa(1), this Court has held that the grant with which the Court was
concerned, read in the light of Order 31 of the Rules, Regulations and
Privileges of Khanjadars and Khorposhdars, was law. In discussing the question,
Sinha, C.J., has referred to Order 31 of the Rules and Regulations and has
observed that like the Kalambandis in the case of Phalke(2), the said Rules has
the force of law and would be existing jaw within the meaning of Art. 372 of
the Constitution. This case does not carry the position any further except that
the same general observations are reproduced.
In the case of Tilkayat Shri Govindlalji
Maharaj v. State of Rajasthan(3), while dealing with the question as to whether
the Firman issued by the Udaipur Darbar in 1934 was law or not, this Court
examined the scheme of the said Firman, considered its provisions, their scope
and effect and came to the conclusion that it was law. Having thus reached the
conclusion that the Firman, considered as a whole, was law, the general
observations on which Mr. Setalvad relies were reproduced. But as in the case
of Phalke (2), so in this case, the decision does not appear to be based on any
general or a priori consideration, but it is based more particularly on the examination
of the scheme of the Firman and its provisions.
(1)  Supp. 1 S.C.R. 405,410.
(2)  1 S.C.R. 957 (3)  1 S. C. R.
120 In the case of Maharaja Shree Umaid Mills
Ltd. v. Union of India(1), a similar question arose for the decision of this
Court in regard to an agreement made on the 17th of April, 1941. The point
urged before the Court was that the said agreement was law, and reliance was
placed on the several general observations to which we have already referred.
S. K. Das. J. who spoke for the Court examined the said observations and the
context in which they were made and rejected the plea that the said
observations were intended to lay down a general proposition that in the case
of an absolute monarch, no distinction can be made between his legislative and
his executive acts. In the result, the agreement in question was held to be no
more than a contract which was an executive act and not a law within the
meaning of Art. 372.
The same view has been recently expressed by Hidayatullah,
Shah and Ayyangar, JJ. in the judgments respectively delivered by them in The
State of Gujarat v. Vora Fiddali Badruddin Mithibarwala(2).
Therefore, a close examination of the
decisions on which Mr. Setalvad relies does not support his argument that this
Court has laid down a general proposition about the irrelevance or
inapplicability of the well-recognised distinction between legislative and
executive acts in regard to the orders issued by absolute monarchs like the
Raja of Dhenkanal in the present case. The true legal position is that whenever
a dispute arises as to whether an order passed by an absolute monarch
represents a legislative act and continues to remain operative by virtue of cl.
4(b) of the Order, all relevant factors must be considered before the question
is answered; the nature of the 'order, the scope and effect of its provisions,
its general setting and context, the method adopted by the Ruler in
promulgating legislative as distinguished from executive orders, these and other
allied matters will have to be examined before the character of the order is
judicially determined, and so, we are satisfied that Mr. Setalvad is not right
in placing his argument as high as to say that the Sanad issued in favour of
the appellant by the Raja of Dhenkanal must be field to be law without
considering the nature of the -rant contained in it and other relevant
circumstances and facts. We must, therefore. proceed to examine these relevant
Let us then examine the Sanad. It consists of
three clauses. The first clause refers to the practice in the State of
Dhenkanal under which the Rajas made grants in hereditary rights to their
relatives, and it adds that there exists a patent necessity for making an
adequate provision for the grantee.
(1) A.I.R. 1963 S.C. 953.
(2)  6 S.C.R. 461.
121 the appellant, to enable him to maintain
his dignity as a Rajkumar of the State and to maintain himself, his family, his
heirs and descendants in a manner befitting his and their position. 'That is why
out of love and affection for him, the grantor made the khanja grant in the
shape of a monthly cash allowance of Rs. 500/for his life time and also an
assignment of land measuring 6942-71-5 acres specified in the Schedule attached
to the Sanad. The grant of the said land has been made heritable and the
grantee has been authorised to enjoy it from generation to generation.
The extent of the grant is also clarified by
additional clauses which it is unnecessary to mention. Clause 2 of the Sanad
imposes the condition of loyalty on the grantee and his heirs; and by cl. 3 the
State undertook to bear all costs for reclaiming the land covered by the grant
with a view to render it fit for cultivation, Now, it is plain that there is no
legislative element in any of the provisions of this grant. It does not contain
any command which has to be obeyed by the citizens of the State;
it is a gift pure and simple made by the
Ruler in recognition of the fact that under the custom of the family and the
customary law of the State, he was bound to maintain his junior brother. The
grant, therefore, represents purely an executive act on the part of the Ruler
intended to discharge his obligations to his ,junior brother under the personal
law of the family and the customary law of the State. It would, we think be
idle to suggest that such a grant amounts to law. It is true that partly it is
based on the requirement of personal and customary law-, but no action taken by
the Ruler in discharging his obligations under such personal or customary law
can be assimilated to an order issued by him in exercise of his legislative
authority. 'Therefore, we have no difficulty in holding that the Sanad in
question is a purely executive act and cannot be regarded as law as contended
by Mr. Setalvad.
It was then faintly argued by Mr. Setalvad
that the obligation undertaken by the Ruler was recognised by the respondent,
and so, it could not be cancelled by the respondent merely by an executive act.
In our opinion, there is no substance in this argument. If the act by which the
grant was made was a purely executive act on the part of the then Ruler of the
State of Dhenkanal, we do not see how it can be legitimately urged that the
terms of the grant cannot either be modified, or the grant cannot be cancelled
altogether by an executive act of the respondent which is the successor of the
Ruler. As we have just indicated, the customary law which required the Ruler to
provide maintenance for his junior brother, can be said to have been continued
4(b) of the Order of 1948 and Art. 372 of the
but to say that the customary law in that
behalf is continued is very different from saying that the amount of
maintenance fixed by the grant cannot be 122 varied or altered. What the respondent
has done is to stop the payment of cash allowance of Rs. 5001per month an a
does not mean alteration of the law. It is common ground that the grant of the
land covered by the Sanad has not been disturbed, and so, all that the impugned
action of the respondent amounts to is to reduce the total maintenance
allowance granted to the appellant by the Ruler in 19 3 1.
It is plain that though the customary law
requiring provision to be made for the maintenance of the appellant is in
force, the respondent has the right to determine what would be adequate and
appropriate maintenance, and this part of the right is purely executive in
character. It would, we think, be unreasonable to suggest that though the Sanad
is not law, the amount granted by the Sanad cannot be modified by an executive
act of the respondent, and that the respondent must file a suit for that
purpose. All that the customary law requires is the making of a suitable
provision for the maintenance of the junior members of the family. But what is adequate
provision in that behalf will always be a question of fact which has to be
determined in the light of several relevant factors-, the number of persons
entitled to receive maintenance, the requirements of the status of the members
of the family, the total income derived by the family, and other commitments,
may all have to be weighed in deciding the quantum of maintenance which should
be awarded to anyone of the junior members. In fact, both the Courts below have
agreed in holding that having regard to the relevant facts, the grant of the
land made by the Sanad would be adequate and appropriate for the maintenance of
But apart from this aspect of the matter, we
do not see how the appellant can seriously quarrel with the validity of the
respondent's action in discontinuing the payment of cash allowance to him. The
plea that payment was made for some time after the merger can hardly avail the
appellant. in contending that the discontinuance is invalid. In the very nature
of things, the respondent could not have decided whether the cash allowance
should be continued to the appellant or not without examining the merits of the
case, and since a large number of such cases had to be examined after merger,
if the payment continued to be made in the meantime, that cannot give any valid
ground to the appellant to challenge the legality of the ultimate decision of
the respondent to discontinue the payment of the said allowance.
The result is, we confirm the decision of the
High Court, though on somewhat different grounds. The appeal accordingly fails
and is dismissed. There would be no order as to costs.