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TMI Blog1960 (9) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ) preferred claims. While this enquiry was pending, Thakur Khuman Singh died and Thakur Laxman Singh's name was substituted in his place. During 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 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 a 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. 3. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintenance, expropriation etc., with which we are not concerned. In this way, the succession to an Istimrari estate is governed by Sections 23 and 24, and any dispute arising in respect of succession has to be resolved as provided in those section. 6. Section 23 reads as follows : Succession to estate where there is male 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 : Provided - 1st, 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. 7. The contention of the rival parties is as to the interpretation which is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Sing. If Thakur Banspradip Singh left no male is 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, how ever, 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 Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is interesting to see Sections 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. 13. Section 34, which corresponds to s. 24, is ipsissima verba, except that Bhum replaces an Istimrari estate . If Sections 33 and 34 are read together, it cannot be questioned that a matter which falls within s. 33 is excepted 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. 14. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self, 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 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 some thing 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. 16. 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 do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the estate of Sawar and all its assets, moveable and immovable. 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 plait, is barred under the provisions of s. 119 read with s. 23 of the Regulation. 21. 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 male issue : When as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 foisting that the general rule of law is that when 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 may be express or by necessary implication. On a proper construction, do Sections 23 and 119 of the regulation raise such a bar ? 24. 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 there 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of confirmation referred to in the third proviso to s. 23 involve or embrace ? Does it involve a determination of the two fact - (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. 27. 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. Section 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 there 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 Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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