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Raj Coomar Nobodeep Chunder Deb Burmono Vs. Beer Chunder Manikkya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal535
AppellantRaj Coomar Nobodeep Chunder Deb Burmono
RespondentBeer Chunder Manikkya and ors.
Cases ReferredMaharajah Beer Chunder Manickya Bahadoor v. Isham Chunder Thakoor
Excerpt:
jurisdiction - rajah of tipperah--sovereign prince--suit against sovereign prince with respect to land owned by him, and situate in british india--maintenance--charge on immoveable property--benefits to arise out of land--general clauses consolidation act (i of 1868), section 2 clause 5--civil procedure code (act x of 1877), chap. xxviii, section 433. - .....the court overruled an objection taken from the first that the suit cannot be tried at all in the courts of british india, and this question of jurisdiction is the main one with which we have to deal in this appeal.10. this aspect of the case has been at great length and most completely put before us by the learned counsel on either side, to whom the court owes acknowledgments for the able manner in which they have' assisted it in arriving at a conclusion. that conclusion is that our courts have no jurisdiction to deal with either branch of the suit, and that consequently the lower court ought to have dismissed it altogether.11. it is hardly necessary to determine, for it does not seem to be questioned in this suit, that hill tipperah is a sovereign state, in that it governs itself.....
Judgment:

McDonell, J.

1. This is an appeal from a decree of the District Judge of Tipperah, by which the plaintiff, respondent, was declared to be entitled to maintenance from the Maharajah of Hill Tipperah at the rate of Rs. 600 per mensem and to arrears of the same from the 1st of May 1878 to the date of institution of the suit; and the decree further provided that the amount should be realized from the defendant's zamindari in British Tipperah.

2. The plaintiff, respondent, is Raj Coomar Nobodeep Chunder, a son of the late Maharajah of Hill Tipperah, and appointed by him to the office of kurta in the year 1862. Upon the death of this Maharajah, Ishan Chunder, he was succeeded by the present Maharajah Beer Chunder, who had been duly appointed 'juboraj' by his predecessor and elder brother. In July 1874, the plaintiff made an attempt to oust him altogether. He brought a suit to recover possession of various properties held by the Maharajah in British India, upon the ground that he was the rightful heir to his father's rank and estates, and that the appointment of Beer Chunder as juboraj had been accomplished by fraud and collusion. His suit was dismissed both in the District Court and in this Court on appeal, upon the finding that Beer Chunder had been duly appointed to be juboraj, and as such had lawfully succeeded to the zamindari in British India as well as to the throne of Hill Tipperah.

3. Having been thus defeated in this Court on the 14th of August 1876, the plaintiff instituted this suit in March 1880. His prayer was twofold: 1), that the Court would, determining his rank, declare him entitled to take possession of the zamindari of Rowshanabad and other properties upon the death of the present Maharajah; and (2, that his maintenance be fixed at Rs. 5,000 per mensem, and be created a charge upon the said zamindari, arrears at that rate with interest being awarded to him from Assar 1278 to Maugh 1286 B.S. (June 1871 to January 1880).

4. The rank claimed by him is specified in para. 4 of the plaint. It is that of juboraj, to which he claims to have ascended from the office of kurta through the succession of Beer Chunder to the throne, and by the death of his own brother, Brojendro Chunder, who, having been appointed barra thakoor by his father, became, the plaintiff alleges, juboraj upon the elevation of Beer Chunder; plaintiff claims thus to have become from kurta, barra thakoor and from barra thakoor, juboraj. And in para. 7 of the plaint it is alleged that the claim of the members of the Rajah's family to maintenance is a charge upon the zamindari of Chuckla, Rowshanabad and others.

5. With reference to the plaintiff's first prayer, to be declared juboraj, it should be mentioned that the defendant, Maharajah Beer Chunder, after being in the latter part of 1276 (1869) formally recognized and installed by the British Government, appointed in 1277 (August 1870), two of his sons to be juboraj and barra thakoor respectively, these appointments being, as he contended, vacant by the recent death of Brojendro Chunder.

6. The first prayer, therefore, of the present plaint practically asks to avoid the appointment of the present Maharajah's son as juboraj.

7. The suit was instituted only against the Maharajah, but by direction of the Court his two sons, whom he had appointed juboraj and barra thakoor, were added as defendants, and they join in this appeal.

8. The lower Court dismissed the first portion of the claim on the ground that it was barred by Sections 13 and 43 of the Code of Civil Procedure, and it found that the plaintiff's position as kurta gave him no right of succession to the higher positions of barra thakoor and juboraj. It, however, gave plaintiff the decree for maintenance against which, as we have above stated, the present appeal is directed.

9. In making this decree the Court overruled an objection taken from the first that the suit cannot be tried at all in the Courts of British India, and this question of jurisdiction is the main one with which we have to deal in this appeal.

10. This aspect of the case has been at great length and most completely put before us by the learned Counsel on either side, to whom the Court owes acknowledgments for the able manner in which they have' assisted it in arriving at a conclusion. That conclusion is that our Courts have no jurisdiction to deal with either branch of the suit, and that consequently the lower Court ought to have dismissed it altogether.

11. It is hardly necessary to determine, for it does not seem to be questioned in this suit, that Hill Tipperah is a Sovereign State, in that it governs itself without dependence on any foreign power. It makes and administers its own laws, and the Maharajah admittedly exercises the power of life and death within his own territory.

Vide Vattell's Law of Nations, Book I, Chapter I.

12. Aitchison, in his collection of Treaties, Vol. I, p. 78, says: Independent Tipperah is not held by gift from the British Government or its predecessors, or under any title derived from it or them, never having been subjected by the Mogual.

13. Its acknowledgment of the British Government as the paramount power, and the nuzzar paid on the recognition by that Government of succeeding Maharajahs do not take from it the status which by the law of Nations it is entitled to hold-see Wheaton's International Law, pp. 58 and 69.

14. It is not contended by Mr. Phillips for the plaintiff, respondent, that our Courts would have any jurisdiction in a suit affecting the Raj itself, or the Maharajah in his character as such. He contends that because the zamindari Rowshanabad is within British Tipperah, and because the plaint is so framed as to rest upon this zamindari, the Court has jurisdiction over the subject-matter of the suit, and over the Maharajah, defendant, in his character as zamindar.

15. The Advocate-General, on the other hand, has contended that the Maharajah being a Sovereign Prince is not personally subject to the jurisdiction of our Courts in any suit whatever.

16. We are of opinion that whatever may be the merits of this contention, it is certain that the suit now before us is not of which our Courts can take cognizance.

17. As regards the first portion of the prayer of the suit, viz., that the Court, determining the plaintiff's rank, declare him entitled to take possession of the zamindari on the death of the present Maharajah, we observe that this asks the Court to pronounce the plaintiff to be juboraj or heir apparent to the Raj; for it is only as such that he could be entitled to succeed to the zamindari, and that is the rank which he specifically claims in the plaint. It is clear, however, that our Courts have no jurisdiction to decide who is juboraj of the foreign State of Hill Tipperah. It has been sometimes said that the title to the Raj follows the title to the zamindari or vice versa; but this we consider is a mistake, for there are not two titles to the two estates, but the title to both is one and the same. The origin of the mistake is probably this, that the British Government has, in cases of disputed succession, abstained from recognising a new Maharajah, until the Courts have determined who is entitled to the zamindari. But it is equally the fact that the Courts have determined the right to the zamindari by ascertaining who was really the juboraj or heir to the Raj.

18. We further observe that for our Courts to entertain the plaintiff's suit and declare him juboraj, would, if operative at all, have the effect of annulling the Maharajah's appointment of his own son as juboraj; but this appointment was an act of sovereignty performed by the Maharajah in his own territory, and as such it clearly cannot be questioned or set aside by the Courts of British India. Under no circumstances do we think that this claim could be entertained by our Courts.

19. The lower Court has dismissed this part of the claim on other grounds, as assuming that it had jurisdiction to entertain it. The plaintiff has also appealed against the decree in this respect, but our conclusion that there is no jurisdiction at all makes it unnecessary to consider the plaintiff's appeal.

20. Next, as regards the claim for maintenance, we might perhaps dispose of that too by holding that the grant of maintenance, or the withholding of it is an act of sovereignty exercised by the Maharajah with which our Courts have nothing to do; but Mr. Phillips for the plaintiff, respondent, while contending that he is entitled to maintenance both against the defendant as Maharajah, and as against him as zamindar of Rowshanabad, admits that we have jurisdiction only in respect of his claim as a son of the late zamindar of Rowshanabad. We have, therefore, to consider whether we have even so much jurisdiction.

21. The learned Advocate-General's proposition is that, the defendant Maharajah being a foreign Sovereign Prince recognised by the Government of British India, he cannot be sued personally in our Courts, except under the provisions of Chap. XXVIII of the Code of Civil Procedure. He cited numerous authorities to show that the principles of International Law protected sovereigns recognised by any State from the jurisdiction of the Courts of such State. We understood Mr. Phillips to contend on the contrary that such immunity does not attach to a Sovereign Prince unless it be expressly conferred upon him.

22. In the present case, however, we think that we need not look further than to the Code of Civil Procedure. Sections 431, 432, 433 contain the provisions enacted in regard to suits by or against foreign princes. If the Maharajah defendant is such a prince or Chief as to come within the purview of these sections, then a suit can be entertained against him in our Courts only on the conditions contained in Section 433. Mr. Phillips contended that the onus lay upon the Maharajah of proving that he is such a prince as is contemplated by Section 433, and he submitted that any such claim had been expressly negatived by the Government in the letter of the Secretary to the Government of Bengal, dated 25th December 1878, and printed at page 18 of the paper book. In this letter it is stated that the Maharajah is not an independent ruling chief within the meaning of Section 433 of the Civil Procedure Code.

23. It seems to us, however, that it is for the Courts, and not for the Government, to say whether or not any particular chief or prince comes within the purview of that section. We look upon this passage as nothing more than an expression of opinion conveyed to the Judge of Tipperah, and we must add that we think it the expression of an erroneous opinion. For it has been shown to us that Hill Tipperah is a Sovereign State, and that the Maharajah, defendant, has been formally recognised by the British Government in India. We are, therefore, bound to hold that he is a ruling chief, and that he cannot be tried in the Courts of British India, excepting under the conditions specified in Section 433.

24. We may add that the same opinion was judicially expressed by a Division Bench of this Court (Mitter, J. and Maclean, JJ.) on the 19th of June 1878, or six months before the date of the letter in question in Regular Appeal No. 22 of 1877-Maharajah Beer Chunder Manickya Bahadoor v. Isham Chunder Thakoor 3 C.L.R. 417.

25. The plaintiff himself recognized this status of the defendant, for he applied for, and obtained permission from, the Government of Bengal to bring this suit-see copy of Resolution printed at p. 17 of the paper book.

26. Plaintiff must then show that his suit falls within one of the clauses a, b, c, of the section. It is admitted that clauses a and b are not applicable to this case. Unless therefore Clause c applies, that is, unless the subject-matter of the suit is immoveable property, the suit cannot be maintained at all. At first sight we should certainly not be inclined to say that a suit for a declaration of the plaintiff's status and for maintenance had for its subject-matter 'immoveable property,' and this would be another reason for rejecting the first portion of the suit.

27. As regards maintenance, however, Mr. Phillips referred us to the definition given of 'immoveable' property in the General Clauses Act (I of 1868), which includes 'benefits to arise out of land,' and he ingeniously suggested that the maintenance claimed by plaintiff since he asks that it be made a charge upon the zamindari, is, in fact, immoveable property.

28. But we think it is impossible to contend that the plaintiff's claim to maintenance, assuming it to be a valid one, constitutes of itself a charge upon any particular property of the Maharajah. It is not pretended that were the zamindari of Rowshanabad to be sold for arrears of revenue the plaintiff would have a lien upon it, as against the purchaser, for the maintenance which he considers that he has a right to claim from the Maharajah. Of course, if the Court could give him a decree, it might order the amount decreed to be a specific charge upon the zamindari, and thus the claim might be said to be one which might ripen into a charge. But in the abstract a claim for maintenance is no more a charge on property than the expenses of marriage, or other religious ceremonies. Debts due by a deceased person stand higher than other claims upon his estate, and yet debts are no charge upon specific property unless expressly made so by bond or by a decree. It is not necessary to refer particularly to the long list of cases and authorities cited with reference to this part of the case. Mr. Mayne gives the effect of them in his chapter on maintenance. The result of the whole is that we are satisfied that the present suit cannot be said to be one for immoveable property, and that consequently there is nothing in Section 433 which gives us jurisdiction to entertain it.

29. Before concluding, we should perhaps notice an argument that it is too late for the Maharajah to contend against the jurisdiction of our Courts, inasmuch as he has frequently sued and been sued in them attorning to their jurisdiction. One case is relied upon by the plaintiff in which a Division Bench of this Court (White and Morris, JJ.) refused to allow the Maharajah to take the plea of no jurisdiction. But this was because he had not taken it in the lower Court, and only for that reason; and some of the suits in which he attorned were brought before the Maharajah had been recognized de jure by our Government, and when therefore no such plea on his part could have been entertained in regard to claims in British Tipperah.

30. Further, it is a mistake to suppose that because the Maharajah chooses to waive his privilege in one suit he is thereby precluded from pleading it in any other. We hold, therefore, that the argument based upon previous conduct. has no weight in respect of the question raised in this suit.

31. This being so, we must decree this appeal, and reverse the decree of the lower Court, so far as it is adverse to the defendant.

32. The suit is, therefore, dismissed with costs of both Courts. The defendants Nos. 1 and 2 are strictly entitled to separate costs, but under the circumstances we give but one set of costs.

33. This decision renders it necessary that the plaintiff's appeal No. 137 be dismissed with costs.


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