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His Highness Sir Sayajirao, Gaekwar of Baroda Vs. Madhavrao Raghunath Rao Dhavale - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in115Ind.Cas.369
AppellantHis Highness Sir Sayajirao, Gaekwar of Baroda
RespondentMadhavrao Raghunath Rao Dhavale
Excerpt:
inam - 'saranjam', meaning of--resumption of saranjam--decision by government--civil court's powers--evidence act (i of 1872), section 91--resumption of saranjam, proof of--limitation act (ix of 1908), sections 3 and 31--civil procedure code (act v of 1908), section 86--suit against ruling prince--deduction of time spent in obtaining permission to sue such prince--non-residence of such prince in british india, effect of--maxim 'lex non cogit ad impossibilia'. - - 'to be enjoyed in lineal succession from generation to generation' and that the word used is 'inam' and not 'saranjam'.but, in my opinion, this does not justify this court in differing from the view that government had taken on this point. 'it is immaterial whether the rights to these lands were held by the gaikwar before the.....charles fawcett, acting, c.j.1. in this suit against the gaikwar of baroda, the plaintiff seeks to recover possession of certain lands situate in the village davdi, in the poona district, to which he claims to be entitled as the adopted son of one raghunathrao, who died in february 1902. there is now no dispute that the plaintiff was in fact validly adopted by raghunathrao's widow chandrabai in october 1902. the main question in dispute is whether these lands vested in the plaintiff at his adoption, or, as the gaikwar of baroda alleges, had been validly resumed by him prior to the plaintiff's adoption. then there is a subsidiary issue as to whether the plaintiff's suit is not in any case time-barred.2. the main facts may be briefly stated. the village of davdi was in the year 1728 a.d......
Judgment:

Charles Fawcett, Acting, C.J.

1. In this suit against the Gaikwar of Baroda, the plaintiff seeks to recover possession of certain lands situate in the village Davdi, in the Poona District, to which he claims to be entitled as the adopted son of one Raghunathrao, who died in February 1902. There is now no dispute that the plaintiff was in fact validly adopted by Raghunathrao's widow Chandrabai in October 1902. The main question in dispute is whether these lands vested in the plaintiff at his adoption, or, as the Gaikwar of Baroda alleges, had been validly resumed by him prior to the plaintiff's adoption. Then there is a subsidiary issue as to whether the plaintiff's suit is not in any case time-barred.

2. The main facts may be briefly stated. The village of Davdi was in the year 1728 A.D. conferred by Shahu Maharaj, the Raja of Satara, upon the then Gaikwar, Pilaji, under a sanad which is Ex. 180. The lands in suit are proved by evidence in this case to have been in the enjoyment of the Gaikwar or members of his family from about 1834 to 1854. In 1862 the then Gaikwar, Khanderao, made a grant of the village to one Limbaji, who was the grandfather of Raghunatbrao, The grant is worded so as to confer even more than what was granted by the original sanad of 1728, and would certainly cover the particular lands in suit. Limbaji died in 1879 and was succeeded by his son Madhavrao. There is evidence that Madhavrao had possession and that after his death in 1900 the lands were in the occupation of his son Raghunathrao till his death in February, 1902. Rahgunathrao's name had been entered by the Collector of Poona as the occupant of these lands in 1901. Raghunathrao left two widows, Chandrabai and Sitabai; and the name of Chandrabai was then entered by the Collector because she was the senior widow of Raghunathrao. The Baroda Darbar contested this entry, and succeeded in 1904 in getting it removed, and the name of the Gaikwar entered instead. As already mentioned Chandrabai adopted the plaintiff in October 1906. After the name of the Gaikwar had been entered with the approval of Government of Bombay against these lands, the Baroda Darbar took action to take possession. Among other things, they entered into an agreement with Sitabai on February 27, 1900, by which in consideration of a grant of a maintenance allowance she assigned to the Gaikwar such rights as she had in the lands, including those under rent notes that she had already passed to certain tenants, The Gaikwar then through his representative took proceedings in the from of assistance suits with the result that he eventually got possession of these loans, some in 1906, and some in 1907. The plaintiff applied on July 25, 1916, to the Government of India for permission to file a suit against the Gaikwar of Baroda in connection with these lands. But he did not get permission to file the suit until over four years afterwards, namely, on November 15,1920. He then brought the present suit on June 2, 1922, in order to recover possession with mesne profits, as already mentioned. In his plaint he claims that he was entitled to exclude the period from July 25, 1916, to November 15,1920, which had been spent in obtaining the necessary certificate under Section 86 of the Code of Civil Procedure, in calculating the period of limitation of the suit, and that, therefore the suit was not barred. The two main issues, therefore, were the 2nd and 4th of those framed by the Subordinate Judge, namely, (1) 'Is it proved that the plaintiff is the owner of the lands in suit?' and (2) 'whether the plaintiff's suit is within time.'

3. As to the first issue, the original grant to the Gaikwar (Ex. 180) was a grant merely of land revenue and not of the soil as is mentioned in para. 7 of the Subordinate Judge's judgment and is common ground before us. Government in their Resolution of 1904, which is Ex. A in this appeal, held that that grant was one of saranjam. I may here mention that Ex. A was admitted by consent in this appeal in view of the fact that a copy of the same Resolution had been tendered in the lower Court but had been rejected as being a copy of a copy, and, therefore technically inadmissible. This Court also considered it highly desirable that the original Resolution should be on the record of the case. Therefore, it has been admitted as additional evidence in appeal under Order XLI, Rule 27, Civil Procedure Code. The Gaikwar accepts the position that in fact this was a saranjam grant. It is contended by Divan Bahadur Rao for the plaintiff-respondent that really it is not a saranjam grant but an ordinary inam grant without any of the restrictions connoted by the word 'saranjam'. Divan Bahadur Rao points out that the grant contains wide words namely 'a new inam' of the villages mentioned: 'to be enjoyed in lineal succession from generation to generation' and that the word used is 'inam' and not 'saranjam'. But, in my opinion, this does not justify this Court in differing from the view that Government had taken on this point. Primarily, it is for Government to determine in any particular case of this kind, whether a political tenure such as saranjam exists. This is enacted in Bombay Act II of 1863, Section 16, and Bombay Act VII of 1863, Section 32 of. Act XI of 1852, Schedule. B, Clause (10). It has accordingly been laid down in Ramchandra Mantri v. Venkatrao 6 B. 598 and in Sheikh Sultan Sani v. Sheikh Ajmodin 17 Ind. Jur. 100 that questions of this kind are primarily for Government to decide and that no Civil Court can interfere with their decision. The last mentioned case also points out that the mere use of wide expressions such as the grant of land 'for ever' or 'from generation to generation' does not prevent the grant being one of saranjam. Nor again is the use of the word 'inam' instead of 'saranjam' conclusive. The grant is mentioned as being given to Limbaji by virtue of his rank of Sanapati, a military title, and of his being a devoted servant of the King; this supports the view that the grant was one primarily for military purposes, so as to fall under the description of saranjam. Again, the grant has been so shown in the Alienation Register kept under Section 53 of the Land Revenue Code. Even before the Resolution of 1904 it was so shown, as is mentioned in para. 3 of the letter of the Commissioner, C.D., dated May 5, 1903, which is recited in the preamble of that Resolution. Therefore, I am of opinion that this grant to the Gaikwar must be held to be one of saranjam, and subject to the restrictions that apply to a grant of that nature.

4. The grant by Khanderao Gaikwar to Limbaji in 1862, was undoubtedly a grant of the soil, as has been held by the Subordinate Judge in para. 9 of his judgment, as it uses words which are associated with a grant of the soil. Divan Bahadur Rao contends that such a grant would cover mirasi rights in the lands in suit. That is a contention which, I think, must be conceded. Those rights are shown by Exs. 197 and 202 to have vested in the Gaikwar, whose family cultivated them through servants. How exactly they acquired such rights is not in evidence, but it has been common ground before us that they were presumably acquired by virtue of the powers of management that a saranjamdar or inamdar has to utilise vacant lands for the beat purpose available, or to dispose of lands that have lapsed either through forfeiture, resignation or want of heirs. There is no evidence of this, but for the purpose of this suit, that may, I think, be taken to be the manner in which the Gaikwar obtained possession, in the absence of anything suggesting that the Gaikwar had acquired any rights in these lands apart from the grant of the village to him in 1728.

5. That being so, Divan Bahadur Rao further contends that these mirasi rights would not be resumable under the saranjam rules or otherwise, assuming that the original grant of 1728 is one of saranjam. The Subordinate Judge's remark in para. 8 of his judgment that: 'it is immaterial whether the rights to these lands were held by the Gaikwar before the grant by Raja Shahu or thereafter' is clearly wrong in view of the decision of their Lordships of the Privy Council in Secretory of State for India v. Girjabai . As I have already stated there is no suggestion in this case that the Gaikwar acquired any right in these lands prior to the grant of 1728, and, therefore, the case is one which is of a similar nature to that which was the subject matter of the decision in Girjabai's case . That also was a case of land included in a saranjam grant of the revenue of certain villages, and the Privy Council held that land included in such a saranjam grant, which had passed into the possession of the saranjamdar upon the khatedar's family becoming extinct, or through his default in paying the revenue, did not go as the private property of the saranjamdar to his heirs, but was property, which, on the death of the saranjamdar, Government was entitled to resume as part of the saranjam estate. In the present case, however, the saranjamdar transferred his rights in these lands to a third party, and their Lordships in Girjabai's case kept open the point whether a saranjamdar could create rights in favour of third persons by virtue of his powers of management, which would not be resumable but could be treated as the private property of such third party. It is, therefore, contended that this case is not governed by Girjabai's case and that the alienation of the marasi rights in these lands by the Gaikwar Khanderao in 1862 to the great grandfather of the plaintiff is valid and binding on any successor of the then saranjamdar, Khanderao. In support of this contention Divan Bahadur Rao has cited Madhavrao Hariharrao v. Anusuyabai Eknath 36 Ind. Cas. 505 Sakharam Gopal v. Trimbakrao Ramchandra Mantri 61 Ind. Cas. 40 and Madhavrao Rasti v. Inam Bapu Sherkar : AIR1926Bom316 . It is unfortunate for him that I am rather tied in regard to this point by the opinion I have already expressed against such a contention, or at any rate against the contention that, in every case, an alienation of this kind is binding upon a saranjamdar's successors. I refer to my remarks in Secretary of State for India v. Girjabai with regard to the decisions in Madhavrao Hariharrao v. Anusuyabai Eknath 36 Ind. Cas. 505 and Sakharam Gopal v. Trimbakrao Ramchandra Mantri 45 B 694. It is true that in Madhavrao Rasti v. Imam Bapu Sherkar : AIR1926Bom316 , I was a party to a decision that the grant of mirasi rights is not necessarily an alienation invalid beyond the lifetime of the saranjamdar making the grant. That decision draws a distinction between an alienation of mirasi rights to a stranger which confers no benefit on the saranjam estate and a grant of such rights to a cultivator for the benefit of the estate. At 28 Bom. L.R. I pointed out that none of the kabuliyats conferred a rent-free estate. At page 439* I said that each case must stand on its own facts. I further remarked that there had been acquiescence in the grant by the plaintiff's predecessor-in-title, and under the circumstances I held that there was a legitimate presumption that the grant had been made for necessary purposes and, therefore, was binding on the present saranjamdar. Such a case is on a quite different footing to the one we have to consider in the present suit. Here the alienation was one which is absolutely rent free. No benefit is reserved to the saranjam estate in the way of rent or in any other manner. The rents of these lands all went into the pocket of Limbaji and his descendants. Limbaji appears from the remarks of Sir T. Madhavrao in Ex. 195 to have been an undeserving favourite of Khanderao; and although he is represented in a better light in Madhavrao's petition of 1880 (Ex. 186), he had no previous connection with this estate. Far from there having been any acquiescence on the part of the present Gaikwar, who succeeded to the gadi in about; 1874-1875, we find that upon Limbaji's death in 1879, clear orders were passed that his son Madhavrao was held to have no right to a continuance of the village, but it was continued for his lifetime and until further orders as an act of grace (see paras 6, 7 and 8 of the orders in Ex. 195). These orders were enforced, as clearly appears from Madhavrao's petition dated July 8, 1880, Ex. 186, where he says that the decision was enforced by the attachment of the village of Matraj and by the withdrawal of certain allowances. In view of these circumstances, I think that this is clearly not a case of an alienation that can properly be held to bind the successor of Khanderao Gaikwar. In regard to such an alienation I adhere to the view I have expressed in Secretary of State for India v. Girjabai Shivdevrao A.I.R. 1925 Bom. 197 and Madhavrao Raste v. Imam Bapu Sherkar : AIR1926Bom316 . Therefore, I differ from the view expressed by the Subordinate Judge in para, 10 of his judgment that the rights of the Dhavle family remained unaffected by the formal resumption of the saranjam in 1904 by the Bombay Government and its re-grant to the present Gaikwar. Upon such re-grant the saranjam estate would pass as an estate unburdened by any alienation that is not binding beyond Khanderao's lifetime. If there was any technical defect in the validity of any prior resumption by the Gaikwar, that would be cured by the order of Government passed in 1904; or at any rate persistence in such resumption after the re-grant would be valid. It is to be noted that the re-grant was long before the plaintiff's adoption in 1905, so that, a valid resumption in 1904-1905, consequent on the death of Raghunathrao in 1902, would suffice to prevent the plaintiff obtaining any title to these lands.

6. I next come to the contention that there is no evidence of any further orders of the, kind contemplated in para, 8 of the Divan's orders of July 14, 1879, Ex. 195. That is a view which has been adopted by the Subordinate Judge in para. 12 of his judgment. But, in my opinion, there is clear evidence of action by the Gaikwar showing that he was opposed to any further continuance of the grant of this village at any rate after Raghunathrao's death in 1902. This is, for instance, shown by the representation from the Baroda Darbar, which is recited in full in the preamble to the Government Resolution of February 26, 1904, Ex. A. In para. 6 of that representation a reference is made to a communication by the Baroda Darbar, asking that the Collector of Poona should not entertain any application from the heirs of Madhavrao to enter their names in the records of the village, until the question of succession to Madhavrao's emoluments was finally disposed of. That is relevant as an admission by defendant No. 1, which is against him so far as it implies that in 1901 there bad been no final orders passed as to the resumption of the grant. Paragraph 7 says that after Raghunathrao's death in February, 1902, a representation was made stating that on his death the village had reverted to His Highness' Government. That is no doubt an admission in favour of the person making the statement, which is not admissible in evidence. But apart from that statement there is clear evidence that the Gaikwar's Government took action to get the order of the Collector entering the name of Chandrabai on the revenue record upset and to have the name of the Gaikwar entered instead. That is a fact proved by Ex. A, and it is also deposed to by the watandar kulkarni of Davdi in para. 4 of his deposition, Ex. 118. There is the further evidence that the Gaikwar got possession of these lands in 1906-1907.

7. Against this, it is contended that there is no actual order of resumption on the record, and certainly this is a contention, which might, in certain circumstances, be conclusive against defendant No. 1. If such a resumption is a matter which by law requires to be reduced to the form of a document, then under Section 91 of the Indian Evidence Act no other evidence would be admissible except the document or secondary evidence of its contents in any case where secondary evidence is admissible. For instance in regard to a case where a Collector is alleged to have passed orders against an alienation of watan land under the Hereditary Offices Act of 1874, such a document would have to be produced to support a resumption under Section 9 or Section 11 of that Act, because these sections prescribe the Collector recording his reasons in writing, that is to say, the law requires the matter to be reduced to the form of a document. But, there is no law which requires that a resumption by a saranjamdar should be reduced to the form of a document. In the present case the resumption is one made by a Native State, i.e., not by an authority in British India, and the law applicable would be that of the Baroda State. It has not been alleged that in the Baroda State there is any law which requires that such a resumption should only be made after the Gaikwar or the Divan has recorded his reasons in writing for the resumption. Even if it was a case of a resumption by a saranjamdar in British India, there is no law, so far as I am aware, which requires a document of this kind. Therefore, in my opinion, the case is not one to which Section 91 of the Indian Evidence Act applies, and other evidence is admissible to show that in fact there have been orders of the kind contemplated in para. 8 of the Divan's orders of 1879. The case is one which, in my opinion, falls under Section 114 of the Indian Evidence Act. The clear evidence of the action taken by the Baroda Darbar is such that the Court can safely presume that there were orders for the resumption of the grant to Limbaji after the death of his grandson Raghunathrao.

8. It may be added that this is not a case where the plaintiff gave notice to defendant No. 1 to produce any such order of resumption and defendant No. 1 failed to comply with such a notice. Mr. Coyajee for the appellant has, in the course of his arguments, said that, on account of the vague nature of the assertions in the plaint as to the plaintiff's title, in spite of the attempt made by defendant No. 1 to get him to state it more clearly, there has been a failure to put on record documentary evidence that might otherwise have been produced. It seems to me that, if the defendant No. 1's advisers had realised the importance of showing that the order of the Divan in para. 8 of Ex. 195 had been followed by 'further orders,' a plain assertion to that effect would no doubt have been made and the orders produced. The comments of the Subordinate Judge in para. 13 of his judgment about there being no plain allegation of resumption in the defendant No. 1's written statement are to some extent justified. But it seems to me that in this matter the plaintiff is also to blame, and that the omission to make such an allegation cannot, in the circumstances, be treated as virtually amounting to an admission by defendant No. 1 that in fact there was no such resumption. The evidence clearly goes all the other way.

9. Divan Bahadur Rao has urged that the agreement, Ex 98, which was made in February, 1906, with Sitabai supports his contention that in fact there was no resumption, and he has also drawn our attention to allegations in the plaints in the assistance suits that the lands sued for had been in the possession of Raghunathrao owing to some right and that this agreement with Sitabai gave defendant No. 1 a right to claim rents from the tenants. On the other hand, Ex. 98 refers to the mirasi lands as belonging to the Gaikwar, and the only real admission against him is the statement that the village of Davdi, including the mirasi lands, was continued up to the death of Raghunathrao. That is not inconsistent with what I have held to be proved, namely, that after the death of Raghunathrao it was decided that the grant should no longer be continued in the family of Limbajirao. It was natural that in order to get possession of these lands and recover rents, defendant No. 1 should have entered into an agreement of this kind with Sitabai, especially as she had already given rent notes for the land, on which, under the agreement of February 27, 1906, the Gaikwar could sue as an assignee. The agreement saved the necessity of establishing title aliunde and having to adduce evidence in a rent suit such as has been given in this suit. I do not think, in the circumstances, that this agreement suffices to contradict the plain evidence of resumption that I have referred to above. In my opinion, the view taken by the Subordinate Judge in para. 15 of his judgment that there are inconsistent allegations made by defendant No. 1, is not substantiated; and I hold, contrary to the Subordinate' Judge, that there was a resumption after Raghunathrao's death and that such resumption was valid, at any rate, after the Bombay Government Resolution of 1904. I would, accordingly, answer the first issue (that is issue No. 2 in the lower Court) in the negative.

10. Then I come to the issue as to limitation. According to the cause of action alleged in the plaint there was dispossession of the plaintiff in 1910, that is to say, the suit falls under Article 142 of the Indian Limitation Act. ON the third issue in the lower Court the Subordinate Judge held that dispossession really took place in 1906-1907, and there is now no dispute before us about this. Therefore, in the ordinary course the suit should have been filed in 1918 or 1919, whereas, in fact it was brought on June 2, 1922. As I have already mentioned the plaintiff claims that he is entitled to deduct a period of four years, three months and twenty-one days from July 25, 1916, to November 15, 1920, as time required to obtain permission to file a suit against defendant No. 1 under Section 85 of the Code of Civil Procedure. On the fifth issue in the lower Court, the Subordinate Judge has held (para. 17 of his judgment) that this period can be deducted, in spite of the provisions of Section 3 of the Indian Limitation Act, and although there is no express provision in that Act under which such a deduction can be made. He bases this decision on the principle referred to in Rupchand Makandas v. Mukunda Mahadev 25 Ind. Cas. 67 namely, that 658 38 B. 'when the law creates a limitation, and the party is disabled to conform to that limitation, without any default in him, and he has no remedy over, the law will ordinarily excuse him.' This is merely an application of the ordinary maxim 'lex non cogit ad impossibilia.' But with due deference, this general principle, in my opinion, cannot prevail against the express provisions of Section 3 of the Indian Limitation Act, any more than principle of equity can prevail against the provisions of statutory law such as Section 49 of the Indian Registration Act and Sections 91 and 92 of the Indian Evidence Act. Thus it, has been held that the fact of a plaintiff being absent from India on account of a sentence of transportation makes no difference and that time continues to run against him during such absence: Domun v. Shubul Koolall 10 W.R. 253. Again it has been held that the time during which an alien Bank had its right to bring suits suspended by an order of the Government, of India could not be deducted: Deutsch Asiatesche Bank v. Hira Lall Barahan & Sons 47 Ind. Cas 398. As pointed out in that case, there was really no hardship or impossibility and the plaintiff had time to bring his suit in spite of the suspension. Similar remarks apply to the present case. There was no real hardship or impossibility in this case No doubt four years is an extraordinary time for the plaintiff's application to have been under consideration by the Government of India. But the plaintiff could have applied very much earlier than he did, for instance, in 1910. and so obtained permission in plenty of time to bring his suit within twelve years. He allowed nine years to pass before applying for permission and eighteen months after getting permission before be brought the suit. The maxim 'vigilantibus non dormientibus jura subveniunt' applies, therefore, to the present case. Even the maxim 'lex non cogit ad impossibilia' is subject to the consideration 'that the party who was so placed used all practical endeavours to surmount the difficulties which already formed that necessity, and which, on fair trial, be found insurmountable' as pointed out by Sir W. Scott in a passage referred to in Broom's Legal Maxims, 8th Edition, page 202. Therefore, in my opinion, the plaintiff is not entitled to deduct this particular period.

11. Finding that this excuse was a weak one, the plaintiff shortly before the case was decided relied on Section 13 of the Indian Limitation Act, see Ex 205, dated March 23, 1925; and the Subordinate Judge has allowed this plea. In para 20 of his judgment he holds that defendant No. 1 was a Ruling Prince, who lived at Baroda, which is outside British India and practically must have been so outside excepting for a few casual visits to Bombay or Poona, and that accordingly by reason of Section 13 of the Indian Limitation Act the present suit was in time. Section 13 says. 'In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from British India... shall be excluded'. This view leads to a somewhat extraordinary result in the case of a suit against a Ruling Chief, viz., that ordinarily, a suit against him can never be barred. The same plea might be raised as to a suit against the Secretary of State for India in Council, who resides in London. The point is, therefore, one of considerable practical importance One thing to be borne in mind is that in a case like the present the suit is really against the Baroda State Section 87. Civil Procedure Code, requires that ordinary suits should be brought against a Sovereign Prince or Ruling Chief in the name of his State. The Gaikwar has agents or representatives who manage his business in British India. That is shown clearly by the documents in the present case. Thus Ex- 197 to 202 speak of the Gaikwar's vahivatdar (manager) in Davdi and Ex. A of his Vakil at Poona. The assistance suits, Ex 197 etc., were brought by his representative; so also the agreement, Ex. 98, was entered into by his vahivatdar. In the present suit he is represented by the Sar Subha of the Baroda State as a person specially appointed under Section 85, Civil Procedure Code (Ex. 13). His position, therefore, is analogous to that of the Secretary of State, who has representatives i.e., officers of Government under him in British India. The question is how Section 13 of the Indian Limitation Act applies to cases of this description. In my opinion Section 13 must be read consistency with the provisions contained in Part IV of the Code of Civil Procedure for 'suits in particular cases' against defendants who ordinarily would be always out of British India; e.g. (1) The Secretary of State for India in Council, see Section 79, Civil Procedure Code, and Section 32 of the Government of India Act, which lays down that he can be sued as a corporate body; (2) an alien corporation of Section 83. Civil Procedure Code, and see Singer Manufacturing Co. v. Baijnath 30 C.103 and Girdhar Damodar v. Kassigar Harigar 17 B 652; Chitty's S.C.C.R. 375 approved by the Privy Council in Annamalai Chetty v. Murugasa Chetty 26 M. 544 and (3) a Sovereign Prince or Ruling Chief sued in the name of his State: cf Sections 85, 86, 87, Civil Procedure Code. Section 13 must, in my opinion be read so as to avoid the obvious absurdity that arises, if such corporate bodies are deemed to reside out of British India, so that suits against them can never be barred at all. And this can be done by treating them as defendants, who, by reason of their special character, are not absent from British India within the meaning of the section, because they have not the same liberty as private individuals to reside personally in British India and attend to their affairs, and they must do so through agents or representatives. They can be held to reside in British India, in so far as they actually carry on their business through representatives in British India. In such cases the contrary view adopted in Atul Kristo Bose v. Lyon & Co. 14 C. 357 and Poorno Chunder Ghose v. Sassoon 25 C. 496 does not apply. There it was held that to hold that the section did not apply to cases where the defendants are, during the period of absence, carrying on business in British India through an authorised agent, would be legislating rather than adjudicating upon the section as it stands. But there are provisions of law which go against such an interpretation in the case of a defendant who is a Sovereign Prince or Ruling Chief. The ordinary Law of England is that the English Courts have no jurisdiction over foreign Sovereigns, unless such persons submit to the jurisdiction (Halsbury's Laws of England Vol. VI. Article 278, page 182). Section. 86, Civil Procedure Code, alters this by allowing a Sovereign Prince or Ruling Chief to be sued with the consent of the Governor General in Council, but there can clearly be no intention to put him in a worse position than a person, who is a resident in British India, as regards limitation of suits against him. The Sovereign Prince or Ruling Chief only represents his State for the purpose of such suits, as is shown by Section 87 which I have already mentioned. The whereabouts of his personal residence are, therefore, immaterial. The plea is really on the same footing as an absurd one that was set up in regard to the Crown in medival times. In Pollock's History of English Law, Second Edition, Vol. 1 page 525, it is stated that in the fourteenth century it was contended that the Crown, like a Church, was always under age, and that no lapse of time would bar the demands of this quasi infant. This is a reverse case to the plea set up here that there is never any bar of limitation in a suit in British India against a Sovereign Prince or Ruling Chief.

12. There are no English precedents exactly on this point, because, as I have already mentioned, a Sovereign cannot be sued without his consent in British Courts. But there are some analogous decisions in regard to the domicil or residence of a corporation and a number of cases on this point are collected in Dicey's Conflict of Laws, Fourth Edition pages 151 to 154. At page 152 he summarises, what has been laid down as to the difference between the domicile of a natural person and that of a corporation, as follows:

The domicile of a human being is a fact which, on certain points, subjects him to the law of a particular country. The domicil of a corporation is a fiction suggested by the fact that a corporation is, on certain points, e.g. the jurisdiction of the Courts, subject to the law of a particular country......Hence a corporation may very well be considered domiciled, or resident, in a country for one purpose and not for another, and hence, too, the great uncertainty as to the facts which determine the domicile, or residence, of a corporation. In each case the particular question is not, at bottom, whether a corporation has in reality a permanent residence in a particular country, but whether for certain purposes (e.g. submission to the jurisdiction of the Courts or liability to taxation) a corporation is to be considered as resident in England, or in some other country.

13. At page 154 it is pointed out that in the case of corporation sole there may be a distinction between the private domicil of the person, e.g. the bishop at any given moment constituting the corporation, and his corporate domicil. Thus the bishop may in his private capacity even acquire a foreign domicil and yet in his corporate capacity, he would be, in any case, held to be domiciled in his diocese. This point of the residence of a corporation is discussed in a recent case: New York Life Insurance Co. v. Public Trustee (1924) 2 Ch. 101 . At page 120 (1924) 2 Ch] Lord Justice Atkin says:

Now, when you are dealing with a corporation, you are dealing again with a legal notion, and you have to examine the question where the debt can be said to be situate. It appears to me plain that a corporation according to our law is deemed to reside for the purposes of suit in the place where it carries on business in its own name, and in the case of corporations, you have many activities in many countries, such as the big insurance companies--for example, the plaintiffs in this case. It appears to me that the true view is that the corporation resides for the purposes of suit in as many places as it carries on business, and it is to be noticed that in ordinary cases where an obligation is entered into by the corporation without any particular limits of the place where it is payable, inasmuch as that obligation is an ordinary personal obligation which follows the person, you have in each jurisdiction a right to sue the corporation there, the corporation is resident there, and the obligation is enforceable there. Under ordinary circumstances the debt would be situate in each place where the corporation can be found.

14. The view has been taken also in an Indian case, viz. Bank of Bengal v. Sarat Chandra Mitra 48 Ind. Cas. 943 in regard to a Bank which carries on business in various branches throughout India, Explanation II to Section 20, Civil Procedure Code, is also based on a similar principle. Therefore, I think that, if the distinction about the Gaikwar really being the State of Baroda, so far as this suit is concerned, is borne in mind, it is a just conclusion that he was not absent from British India within the meaning of Section 13 of the Indian Limitation Act, as he carried on business through representatives in British India, in regard to his rights in the village of Davdi, where the suit lands are situate. Therefore, I hold that Section 13 of the Indian Limitation Act cannot be relied upon in this case, and that the suit, not having been brought within the twelve years specified in Article 142, is clearly time barred, even supposing the plaintiff has otherwise a good title.

15. For these reasons I would reverse the decree of the Subordinate Judge and dismiss the plaintiff's suit with costs throughout.

Murphy, J.

16. The facts necessary to relate for the purpose of this appeal are the following:

17. In 1727 28 A.D . the village of Davdi in the Poona District was granted in inam by Shahu Rajah of Satara to Pilaji Gaikwar. Exclusive of the rights of the hakdars and inamdars, the village was to be continued hereditarily to Pilaji's family. The terms of the grant are those of one of the royal share of the revenue, and not of the soil. In 1863 the late Maharaja Khanderao Gaikwar, in his turn granted the village to Limbaji Dhavle, who appears to have been one of his courtiers, or servants. This grant is in terms one of the soil as well as of the royal share of the revenue, though actually all that could be granted was what had been given originally by the Raja of Satara. Limbaji Dhavle took possession and retained the village till his death on May 16, 1879. At this time Khanderao Gaikwar, the original grantor, was dead and there was an inquiry by the Baroda State Authorities into the grants and allowances which had been given to Limbaji Dhavale. These are detailed in Ex. 195 which also contains the orders passed on the report by the then Dewan of Baroda, Sir T. Madhava Row. This order states that neither Limbaji nor his father had rendered any real services to the State, and that Limbaji had originally been a folder of turbans. Most of his allowances and a second inam village in Baroda State were resumed; but by para. 8 of the order it is directed that 'Let the Poona village of Davdi be continued to the son during life and until further orders as heretofore. The half Patilki etc., under head No. 2, may also be continued to the son as heretofore.' The son was Madhavrao Dhavle who appears to have died in 1899, and to have left a Ron Raghunathrao who died in 1902. Raghunathrao left no son his heirs being his two widows, Chandrabai and Sitabai. Chandrabai was the senior widow, and in 1905 she adopted the plaintiff in this case.

18. The original Court has found the adoption proved, and this point is not disputed in appeal. The suit was filed in 1922, and was for possession of six fields which include twenty survey numbers, and for future mesne profits at the rate of Rs.1,000 a year and costs.

19. The title on which this relief is prayed for is not exactly stilted in the pleadings, though information on this point was sought by the other side.

20. The fact is, that in addition to his rights as tin inamdar, His Highness the Gaikwar of Baroda also held this particular property as khatedar or occupancy tenant and it had been so hold by Limbaji Madhavrao and Raghunathrao in their turns. When Raghunathrao died there was a question as so the name in which the village should be entered. At first the Collector of Poona entered it in the names of the widows but there was a protest and in the end the Government of Bombay held that the grant of Davdi village was a saranjam and it was resumed and formally re-granted to His Highness the present Gaikwar with the intimation that it would in future be treated under the saranjam rules. This is shown in Ex. 190 a letter addressed to the Minister of the Baroda State or. April 4, 1904. It has accordingly since been held and managed by His Highness the Gaikwar and all possible claims to the sananjam have been extinguished by these political proceedings.

21. The real foundation of the claim is that though the saranjam had been taken from plaintiff's family by these orders the land in question which includes the occupancy rights has never been formally resumed and for some time it remained in the possession of Sitabai the second of Raghunathrao's widows. The plaint alleged that the plaintiff had received the income of the land till 1910 but for the reasons stated in para. 18 of the learned Subordinate Judge's judgment it is clear that this statement is not true, there being ample evidence in the shape of rent notes and the proceedings in assistance suits to show that plaintiff was not in possession between 1906 to 1910.

22. This fact is further established by what occurred in that year, Chandrabai bad adopted the plaintiff in 1905 but Sitabai the junior widow appears to have been in actual possession of the property. She entered into an agreement with the local representative of the Baroda Darbar and in consideration of an allowance of Rs. 45 per month she surrendered the property to the Darbar. The document is Ex. 98 in the case dated February 27, 1906. Of the survey numbers handed over, one namely No. 329 is not involved in the suit.

23. All these facts taken together show that the plaintiff's real claim is that though the village may have been, the property in the occupancy right of these survey numbers was never formally resumed and that consequently it descended in the ordinary way to the heir on his adoption as private property. This is the ground on which the learned Subordinate Judge has decided in plaintiff's favour.

24. Whether the suit is in time and the learned Subordinate Judge is correct in holding that this property was unaffected by the resumption of the village, are the two issues which arise in appeal.

25. The question of limitation comes up for decision in the following manner. Defendant No. 1 being a Sovereign Prince, he could not be sued without the consent in writing of the Governor-General, obtained under Section 86 of the Civil Procedure Code. This consent was sought on July 25, 1916, and was received on November 15, 1920.

26. The plaintiff accordingly claimed to exclude from the period of limitation four years, three months and twenty-one days, spent in obtaining the necessary consent. The rule is that subject to the provisions of Sections 4-25 every suit not brought within the period of limitation prescribed shall be dismissed; but Sections 4-25 contain no statutory provision enabling a plaintiff to deduct the time spent in obtaining the Government of India's consent under a. 86 of the Civil Procedure Code. In view of this difficulty, the learned Subordinate Judge has stated that the principle laid down at the end of the judgment reported in Rupchand Makundas v. Mukanda Mahadev 25 Ind. Cas. 67 would come to the plaintiff's help, and that it is that when the law enacts a limitation, and the party is disabled to conform to that limitation, without any default in him and he has no remedy over, the law will ordinarily excuse him. The dictum is no doubt true in the circumstances of that case: but this is not an adjacent one, and I cannot agree that the suit was within limitation on this ground. A second ground has, however, been put forward. It is, that since defendant No. 1 has not resided in British India for a very large proportion of the period 1910-1922, plaintiff can avail himself of the provisions of Section 13 of the Indian Limitation Act.

27. The facts are peculiar. The suit is against a Sovereign Prince who does not ordinarily, and cannot be expected to, reside in British India. Does the Law of Limitation contemplate that in such a case Section 13 continues to extend limitation or, in other words, for pushed to a logical extreme in its application such would be the effect of Section 13, is there no period of limitation for such a suit? I do not think that can have been the intention of the Legislature, for the Indian Limitation Act is a complete statement of the law, and it cannot have been intended, by one of the general exceptions, to nullify the effect of Article 120 which provides for the cases where no specified period of limitation is laid down.

28. Again, the provisions of the sections relating to suits filed against Ruling Chiefs and Sovereign Princes in the Code of Civil Procedure are peculiar. They are an exception to the general law as to the jurisdiction of the Courts, against such persons, and consent can be given and a suit brought when it is, irrespective of such a defendant's residence in British India, or without it. I think that it cannot have been the intention of the Legislature when enacting these provisions to give the result, owing to Section 13 of the Indian Limitation Act, that in certain cases no period of limitation should be available to a Ruling Chief or Sovereign Prince, and that the case is analogous to that of a suit against the Secretary of State for India in Council whose residence is, seldom if ever, in India, and who is sued, though nominally in his own name, actually through his agents in India. It has never been suggested that on this ground the period of limitation against the Secretary of State may be indefinitely enlarged, and though the analogy is not exact, owing to the varying provisions regulating a suit against the Secretary of State and a Ruling Chief or Sovereign Prince respectively, I think it is close enough to justify the Court in holding that Section 13 of the Indian Limitation Act cannot apply to such a suit in the circumstances. This view does not involve any hardship on litigants in British India, for in fact a suit against such persons can always be brought, and it has not even been suggested that opportunity was taken of the temporary residence in British India of His Highness the Gaikwar to bring this one. His Highness has been throughout represented by the Sar Subha of the Baroda State under the provisions of Section 87 of the Civil Procedure Code, and the provision in this section is evidently intended to meet the difficulty. I also concur generally in the reasons given by my Lord the Acting Chief Justice for the finding on this point. I, therefore think that the learned Subordinate Judge's finding on this issue is wrong and that plaintiff's suit, which was brought in 1922, he having lost possession in 1906, was time-barred.

29. On this view of the case it is really unnecessary to decide the main question in the appeal, but since it has been argued at some length, it is perhaps advisable to do so.

30. Radically, the plaintiff's case is that of an inamdar who is also a khatedar, or occupancy tenant, in the village of which he owns the royal share of the revenue. But the case is not precisely that dealt with in the decided cases on this point such as the Secretary of State for India v. Girjabai which related to the vinchurkar saranjam. As against the British Government the saranjamdar is His Highness the Gaikwar, and there has never been any question of a resumption by the British Government of these lands which could involve the point in Girjabai's case The question is really a narrower one. It is whether the Baroda Darbar, having granted the saranjam of the village to plaintiff's predecessor-in-title, including these occupancy rights, can, in the circumstances, resume them, or can be deemed to have resumed them.

31. The Dewan's orders of 1879 (Ex. 155) assume the right of resumption and actually resume a village in Baroda territory and many different allowances, and in the absence of evidence to the contrary, I must assume that such orders are legal. The orders on this point are, that the village of Davdi should be continued to the son, for life, and until further orders, and we have seen, it was afterwards resumed on the grandson's death. There is no formal order produced in the case, resuming, the occupancy rights granted to Limbaji; but there must have been such an order preceding the arrangement with Sitabai in 1906, for the allowance of Rs. 45 per mensem is very similar to that passed in the case of Limbaji's son, in para. 11 of the Dawan's orders, giving Madhavrao a compassionate allowance of Rs. 5,000 per annum

32. There remains the fact that His Highness the Gaikwar's Government did actually take over these properties from the member of plaintiff's family in whose possession they were in 1906, and granted a compassionate allowance in their place, and has been managing the property ever since. I also think that in the circumstances this property was resumable, and that it must be assumed that it was resumed by His Highness' Government, and that plaintiff has therefore, no title to it.

33. For these reasons, I agree with my Lord the Acting Chief Justice that the original Court's decree must be reversed and plaintiff's suit dismissed with costs.

34. Respondent No. 1, Madhavrao Raghunathrao, shall pay his own and the Sar Subha of Baroda State's costs of the appeal.


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