1. The appellant (who is known as the Patayat Sahib) is the younger brother of the Ruler of Dhenkanal State which was one of the sovereign States under the paramountcy of the British Crown till 1047. That State merged with the Provinceof Orissa in pursuance of the well known Merger Agreement entered into between, the Ruler of Dhenkanal and the Dominion of India on the 15th December, 1947 which was given effect to from Ist January 1948. In consequence of the agreement the entire administration of that State was taken over by the Orissa Government ay the delegated authority of the Dominion Government. The appellant was getting a monthly allowance of Rs. 500/- from Dhenkanal District Treasury on the authority of a permanent pay order issued to him by the Ruler o Dhenkanal in 1931. This pay order was based on a Sanad (Ext. 2) granted to him by the Ruler of Dhenkanal on 1-3-31 by virtue of which, the then Ruler, with a view to make adequate provision for the maintenance of the appellant and members of his family according to their status and dignity, assigned lands measuring 6942-71-5 acres, in perpetuity, revenue free, and also granted a cash allowance of Rs. 500/- per month during the life time of the appellant.
2. Soon after, the merger the question as to whether the monthly allowance of Rs. 500/- should be continued to the appellant, or not, was under consideration and the District Magistrate of Dhenkanal informed the appellant in his Ext. 10 that the monthly allowance would continue to be paid 'as before until further orders,'
'The then Chief Minister of Orissa, Dr. Hare-krushna Mahtab in his letter addressed to the Ruler of Kalahandi (Ext. 11) dated 25th February, 1948 (which was also one of the feudatory States of Orissa which merged with the Province of Orissa) gave an assurance to the effect that 'all bona fide and legal commitments of the Rulers as Government of their states, entered into before the 1st January 1948, will be scrupulously respected by Orissa Government'.
Soon after merger one Mr. D. V. Rege was appointed by the Ministry of States, Government of India, as adviser for Orissa States. That Officer, after making elaborate enquiries and after consulting the Government o Orissa submitted a report to the Ministry of States (Ext, B) on 2nd March, 1949 in which, while recommending the grant of monthly cash allowance to the mother and a! distant relative of the Ruler of Dhenkanal did not recommend the grant of any such allowance to the -appellant and his three other brothers. The reason for not recommending such cash allowances to the appellant and his brothers was stated to be that they 'have adequate Khanja lands.' This recommendation appears to have been accepted by the Government of India in the Ministry of States because in their final decision conveyed with their D. O. No. D75/p-49 dated the 25th April, 1949 (Exhibit C) while giving a list of the relatives of the Rulers of Orissa State to whom monthly allowances were directed to be continued the appellant and his brothers were excluded. In consequence of this decision the allowance to the -appellant was discontinued from 1st May 1949. He submitted, a repeated representation to the various authorities for reconsideration of this decision but all of them were rejected. I may, however, refer to letter dated 12th May 1949, from the AdditionalSecretary to the Govt of Orissa Home-States Department (Ext. 7) in which it was stated that one of the main reason why the allowance was not continued to him was his refusal to surrender the large extent of Khanja lands granted to him by the Sanad of 1931. The appellant then instituted the suit under appeal on the 26th Sept, 1951 praying for a declaration of his right to receive Rs. 500/-per month from the Govt. of Orissa, as the succes-sor-in-interest of the Ruler of Dhenkanal and for other consequential reliefs, He claimed this right mainly on the basis of ancient and immemorial custom. Paragraph 2 of the plaint may be quoted in this connection.
'According to ancient, immemorial and continuous custom and usage prevailing and honoured in the States of Orissa and in particular in Dhenkanal State, the plaintiff as the immediate next brother of the present Ruler of Dhenkanal State is entitled to maintenance allowance and Khanja grant of some land belonging to the estate.'
Again in paragraphs 23 and 24 of the plaint he reiterated this right to receive the monthly allowance as having been based on ancient custom and usage and further stated that the Sanad of the Ruler (Ext. 2) dated 1st March 1931, was granted by way of recognition of this custom and that the monthly allowance of Rs. 500/- was reasonable and bona fide. He also stated, in paragraph 0 of his plaint that the income from the Khanja lands granted to him was 'very meagre' and insufficient, unsteady, fluctuating and very uncertain 'and that the cash allowance of Rs. 500/- per month was necessary by way of supplementing his income from lands so as to enable him to maintain himself with dignity consistent with his dignity.'
3. The Government of Orissa, as the main contesting defendant, admitted that the plaintiff, as the younger brother of the Ruler, 'was entitled to a maintenance of some lands according to normal requirements befitting his position' but urged that the Khanja lands measuring 6941 acres and odd were more than adequate for that purpose and that a further cash allowance of Rs. 500/- per month was unnecessary, illegal and excessive, having regard to the status of the plaintiff. They further stated that the Government o Orissa as the new sovereign had full direction (discretion?) either to recognise or refuse to recognise the grant of monthly cash allowance made by the previous Ruler and that their refusal to recognise the grant of cash allowance was an act of State which was not justiciable in the Municipal Courts. The learned Subordinate Judge practically accepted the contention of the Government and held that the Khanja grant was quite adequate for the maintenance of the appellant and that he has acquired considerable house properties at Dhenkanal, Cuttack and Calcutta from which, he was getting a handsome income. He also held that the decision of the Government of India refusing to recognise the cash allowance granted to the appellant was an act of State which was not justiciable in: municipal courts. Hence he dismissed the suit of the appellant.
4. Before taking up the Constitutional questions involved in this litigation T might dispose ofthe main question of fact as to whether apart from the cash allowance of Rs. 500/- the Khanja grant of 6942 acres was itself sufficient to enable the appellant plaintiff to live in comfort and dignity. In the Sanad (Ext, 2) this, grant was made as a permanent heritable grant. It includes not only surface rights but also mineral rights, fishery rights etc. It was made revenue free and it was further stated that the cost of reclaiming portions of the land covered by the grant in order to render them fit for cultivation would also be borne by the State of Dhenkanal,
Though the plaintiff has tried to minimise the income from the landed property and stated that the income is very 'meagre, insufficient, fluctuating and uncertain,' nevertheless the evidence of his own witnesses shows that he was able to acquire considerable properties mainly on the basis of the income from these lands and also on the strength of the cash allowance received by him from the State from 1931 till the date of merger. It was admitted by his authorised agent (P. W. 3) that out of the total lands covered by the grant, the lands let out to tenants covered about 4000 acres out of which the rental received by the appellant! was Rs. 3982. Out of this amount education cess Of Rs. 482/- is payable to the State. Thus net annual income collected by the appellant from the tenants was about Rs. 3500/-. In addition 286.82 acres were kept for the plaintiff's personal cultivation and he used to get 60 to 70 bharanams of paddy and also 3 to 4 poities of pulses and 2 to 3 pouties of rashi per year. It is further, admitted that the plaintiff was able to acquire house property at Tulsipur, in Cuttack Town, valued at Rs. 30,000/-. a big palace known as Jatan Mahal in Dhenkanal valued at more than Rs. 4,00,000/- (Rupees four lakhs) and also two houses in Calcutta City. The exact income which the plaintiff was getting from his Calcutta houses was not fully disclosed but the witness admitted that he was not in a position to deny the statement that the plaintiff was receiving Rs. 2,000/- as monthly rent from the Calcutta houses.
The plaintiff's own evidence on this point is somewhat evasive. He admitted that in Calcutta he has two buildings, one of which consists of blocks from which he was getting a monthly rent of Rs. 400/-. He also admitted that other building was let out on rent to Mr. Surhrawardy, the then Chief Minister of undivided Bengal for his own use and that there was some litigation about it. Apart from these valuable house properties the appellant was running a business known as 'Kalpataru Stores' in Dhemkanal town, in which various shops and hotels are located. He was also getting an appreciable income as monthly rent from these shops and hotels.
It was further admitted by P. W. 3 that the plaintiff used to keep regular accounts of all sorts of income and expenditure from his landed property but those accounts were not proved in the case. Nevertheless even from the guarded admissions made by P. W. 3 and by the plaintiff himself it may be reasonably inferred that his monthly income from rents of houses in Calcutta and from Kalpataru Stores in Dhenkanal would be morethan Rs. 500/- per month. Moreover he was getting Rs. 3500/- in cash from his tenants and also getting substantial quantities of paddy and other produce from the lands in his personal cultivation. This entire property was acquired by the plaintiff from his own income, as admitted by P. W. 3. Hence it must be held that even if we exclude monthly cash allowance of Rs. 500/- the plaintiff has been provided with adequate income for maintaining himself with dignity and comfort. The lower Court's finding on this point must be upheld.
5. The main constitutional question that falls for decision is whether the refusal of the Government of India to recognise the grant of cash allowance of Rs. 500/- to the appellant is an act of State not justiciable in the Municipal Courts.
6. It is well settled rule of international law (which was rightly not challenged by Mr. Das Gupta for the appellant) that when a territory is ceded by one sovereign to another the rights which the inhabitants of that territory enjoyed as against its former Rulers avail them nothing against the new sovereign and cannot be asserted in the courts established by the new sovereign except to the extent to which they have been recognised by the new sovereign. Such recognition may be either by legislation or by agreement, express or implied. See, Asrar Ahmed v. Durgah Committee Ajmer, AIR 1947 PC 1 which has been reiterated in Dalmia Dadri Cement Co. Ltd. v. Commr. of Income-tax, AIR 1958 SC 816.
7. When Dhenkanal State merged with the Province of Orissa on 1-1-48 the Orissa Government as the delegated authority of the Government of India exercising powers under the Extra-Provincial Jurisdiction Act 1947 made an Order known as the Administration of Orissa States Order, 1948, for the governance of the former sovereign States of Orissa including Dhenkanal. The said order contained detailed provisions for the administration of these States and paragraph 4 of that Order describes fully the laws which were continued in force in those territories. Clause (a) of paragraph 4 applied same of the statutes which were then in force in the former British India, with necessary modifications, in these territories. Clause (b) which is material for our purpose may be quoted (omitting unnecessary portions):
'4. Laws to be applied :
(b) As respect to these matters which are not covered by the enactments applied to the Orissa State under sub-paragraph (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.'
By virtue of this Clause all the customary laws in force in Dhenkanal State prior to the date of merger were continued in force thereafter. Mr. Dasgupta contended that the right of the appellant as the younger brother of the Ruler of Dhenkanalto receive monthly cash allowance was based on customary law prevailing in the family of the Rulers of Orissa States and that when the Government inserted Clause (b) in paragraph 4 of the aforesaid Order they gave statutory recognition to that custom. Hence, according to Mr. Dasgupta the right of the appellant to sue the Government arose not solely by virtue of the Sanad granted to him by the previous Ruler of Dhenkanal in 1931 (Ext. 2) but by virtue of the statutory recognition of the aforesaid customary law by the new sovereign, namely the Government of Orissa.
8. In reply to this argument the learned Advocate, General raised two contentions. Firstly the customary right of the younger brothers of Rulers to receive an adequate monthly allowance was never under challenge nevertheless, the plaintiff was bound to prove the existence of a special family custom by which the younger brothers were entitled to a cash allowance in addition to the grant of lands. According to the Advocate General there was no evidence to show that the younger brothers of the Rulers were entitled to any cash allowance even though the lands granted to them in perpetuity were sufficient for their maintenance with comfort and dignity. Secondly, he urged that the quantum of maintenance payable to the younger brothers of the Rulers was entirely at the discretion of the succeeding sovereign and if on a due consideration of the assets in the hands of the younger brothers including the income from the Khanja lands the new sovereign thought that the cash allowance was unreasonable and excessive ana hence refused to recognise that allowance, such decision would be an act of State not justiciable in municipal court.
9. I am inclined to accept the contentions of the Advocate General. It is not denied that the family members of the Rulers of Dhenkanal are governed by Mitakshara Law relating to impartible estates and the younger members of the family are entitled by custom to adequate maintenance so that they may live in comfort and dignity. The quantum of maintenance would necessarily vary with the size of the State and the number of persons entitled to maintenance. Dhenkanal State was 14643 square miles in area and the land revenue was only 21/2 lakhs. The total grasp income including the land revenue was estimated 10 lakhs of rupees in 1946-47. The Ruler has four brothers and it is admitted that each of them, including the appellant, was given Khanja lands of 6942 acres in addition to cash allowance of Rs. 500/- per month. As rightly pointed out by the lower court for quantum of maintenance to which a junior member of an impartible estate is entitled by way of custom should not be so high as to cripple the estate itself--See Sir Hari Singh Gour's Hindu Code 3rd Ed. (para 1154). It is true that in the Sanad of 1931 the then Ruler thought that apart from Khanja lands his younger brothers should get a cash allowance of Rs. 500/- per month for his maintenance. But the succeeding sovereign fs not bound by the opinion of the previous sovereign as to the adequacy of the amount of maintenance. He is entitled to form his own opinion as to the quantum that isnecessary for the proper maintenance of the junior members and to refuse any amount that he considers to be excessive. Such refusal would be an act of State which will not be justiciable in the Municipal Courts. In Clause (b) of paragraph 4 of the Administration of Orissa States Order (already referred to) though the subjects of Dhenkanal State were assured that the customary law regarding the right to maintenance of junior members of the Ruler's family would be recognised by the new soverergn, no assurance was given to the effect that the quantum of maintenance fixed by the previous sovereign would be continued. On the other hand, from the letter of the then Chief Minister to the then Ruler of Kalahandi (Exhibit 11) it was made clear that only bona fide and legal commitments would be respected by the new Government. If the new sovereign considered the amount of cash maintenance to be excessive or unreasonable, and refused to continue the same, it cannot be said that he refused to honour a legal commitment. This must be left to the subjective Satisfaction of the new sovereign. Even if we assume that such satisfaction should be objective, I have already shown that the income from the Khanja lands and other assets of the appellant are quite sufficient for his maintenance.
10. The second argument of the Advocate General seems equally attractive In the plaint the appellant had put forward a special family custom of cash allowance, by way of maintenance, in addition to the grant of Khanja land. He had totally failed to establish such a custom Not even a single instance of such payment in the past in Dhenkanal Raj has been proved; and when questioned about it, the plaintiff took the plea that he did not examine any material witnesses on this point as he was advised that it was not necessary. The Pachi Sawal on which such reliance was placed on behalf of the plaintiff merely proves the right to maintenance of the junior members. It does not prove the special family custom of granting cash allowance in addition to Khanja lands irrespective of the income from the latter. The plaintiff's reliance on Clause (b) of paragraph 4 of the Administration of Orissa State Order, 1947, will not suffice. Though by virtue of that clause, the new sovereign recognised the continuing in form of the customary laws in Dhenkanal State, nevertheless, it is the duty of a party alleging such a special family custom, to prove it like any other fact in issue.
11. The recital in the Sanad also does not support such special family custom. I may quote the Sanad :
'SANAD GRANTED BY RAJA AND RULING CHIEF OF DHENKANAL TO SREE-MAN RAT KUMAR NARASINGH PRATAP SINGDEO, DATED 1st MARCH, 1931.
Sreeman Rajkumar Pratap Singh Deo,
Patavat Sahib of Dhenkanal.
(1) Whereas it has been the practice in this State for the Rajas to make grants in hereditary right to their relatives, and there exists a patent necessity for making an adequate provision for youto enable you to maintain your dignity as a Rajkumar of this State and to maintain yourself, your family, your heirs and descendants in a manner befitting you and their position as such, I, Raja Shankar Pratap Singh Deo Mohindra Bahadur, out of natural love and affection for you, do hereby make and sanction in your favour, Khanja grants in the shape of monthly cash allowance of Rs. 500/- (Rupees five hundred only) for your lifetime and also an assignment of lands measuring 6942.71.5 acres specified in the Schedule hereunto annexed. The grant of the aforesaid land is heritable and you and your heirs and descendants will enjoy them from generation to generation. You will possess and enjoy the lands covered by this grant with all forests, waters, minerals, wood, stones, and fisheries which may now or hereafter exist, within that land as rentfree Lakhraj tenure, free from all other liabilities to the State which ordinary lakhraj tenure are subject to You and your heirs and descendants will make use of the said land in the manner you and they may deem proper.
(2) Be it understood that you and your heirs and descendants will always remain loyal to the Ruling Chief and the State, and that neither you nor any of your heirs or descendants will alienate without previous, permission of the Ruling Chief, of the whole or any portion of the land, hereby assigned to you.
(3) Be it as well be known that the State will bear all costs for reclaiming the land covered by this grant and rendering it fit for cultivation.
Sd- S. P. S. D. M. Bahadur,
..........Raja and Ruling Chief Dhenkanal.'
The 'practice' (meaning the custom) referred to in the Sanad is to ''make grants in hereditary right' to the relatives of the Ruler. The hereditary grant was only the grant of Khanja land covering about 6942 acres and the cash allowance of Rs. 500/- was to enure for the lifetime of the grantee only. On a fair construction of the Sanad, therefore, it would appear that the custom or usage recognised by the grantor was only the hereditary grant of land for the maintenance of the junior members of Dhenkanal Raj family and the grant of cash allowance of Rs. 500/- per month to the appellant was made to him out of love and affection, for him. The recital in the Sanad does not show that the cash allowance was based on any specific family custom though such a custom was expressly pleaded in the plaint.
12. It was then urged that for a period of one year and four months after the merger of Dhenkanal, the Government of Orissa continued payment of the monthly cash allowance from Dhenkanal district treasury and thereby practically recognised his right to receive the same and that consequently it was not open to the Government to suspend payment later on. This argument is also futile. In paragraph 9 of the plaint it was clearly stated that at the time of merger the only assurance given to the Rulers was that all previous orders and commitments of the Rulers as theyexisted on or before the 15th August 1947 which were 'not inconsistent' with the previous practice and custom and which were reasonable and bona fide' would alone be respected. The new sovereign must necessarily take some time to make enquiries with a view to find out whether such commitments were in accordance with the previous practice and usage and whether they were reasonable and bona fide. It cannot be expected that on the very date of merger (1st January 1048) the new sovereign would be in a position to decide this matter once for all. It is for this reason that in the letter of the District Magistrate addressed to the appellant (Ext. 10) the latter was informed that the allowance would be continued 'until further orders'. Similarly, in the Chief Minister's letter to the Ruler of Kalahandi also it was clearly mentioned that only bona fide and legal commitments would be honoured. An enquiry was conducted by Mr. Rege, Advisor for Orissa States, in respect of commitments made by the Rulers of Orissa States before merger, and so far as Dhenkanal State was concerned his recommendation was sent to the Ministry of States at Delhi on the 2nd March 1949 (Ext. B). The Government of India's decision was given on the 25th April 1949 (Ext. C). The interval of one year and four months between the actual date of merger and the actual date on which the decision was taken to recognise Or not to recognise the commitments of the previous sovereign so far as the quantum of maintenance was concerned, does not appear to foe unreasonably long having regard to the circumstances prevailing then, and will not suffice to show that the claim of the Government of India that its refusal to continue the allowance was an 'act of State' is not sustainable. The appellant cannot rely on Virehdra Singh v. State of U. P. AIR 1954 SC 447. There the deprivation of property took, place after the coming into force of the Constitution and thereby One of the fundamental rights guaranteed by the Constitution was infringed. Here, however, the refusal to recognise the cash allowance was communicated to the petitioner by the end of April 1949--before the commencement of the Constitution and hence the question of contravention of fundamental rightsdoes not arise.
13. The question of limitation which was raised as a separate issue (issue No. 2) by the lower court is academic. I have already held that the fixation of the quantum of maintenance to the junior members of the ex-ruler's family is an act of State and the plff. has no justiciable right to any specified quantum from the date of merger on the basis of paragraph 4 of the Administration of Orissa States Order, 1947. There can therefore be no question of his being deprived of any right by the refusal of the Treasury Officer of Dhenkanal to nay him the allowance when he presented the bill for encashment on 1st May, 1949, so as to make that date the starting point for the purpose of limitation. It was the plaintiff's duty to show that there was any legal recognition of his right to the allowance claimed and an this he has totally failed.
14. For these reasons, I maintain the judgment and decree of the lower Court and dismiss the appeal with costs.
R.K. Das, J.
15. I agree.