Modi, J.:— This is an appeal by the defendant Prabhulal against the judgment of the Civil Judge, Jodhpur, dated the 22nd September, 1952, in a suit for declaration.
2. The following pedigree table will explain the relationship of the parties.
3. Bapulal died during the pendency of the suit and is represented by his sons Dalpat Singh, Himmat Singh and Jagannath Singh (respondents Nos. 7, 8 and 9). The plaintiff's case was that Bagh Singh the common ancestor of the parties was the recipient of village Budkia (Tehsil Jodhpur) as jagir sasan from the then ruler of the former State of Jodhpur Maharaj Shri Takhat Singh in Smt. 1908. On the death of Bagh Singh, his jagir was divided half and half between his two sons Tikam Singh and Brijlal Singh. On Tikam Singh's death, the half share of Budkia was again divided equally between his two sons Rampratap Singh and Damodar Singh. Rampratap Singh's son Shankerlal predeceased him. Rampratap Singh is said to have died some time in Smt. 1992 (corresponding to 1935 A.D). As to Damodar Singh's branch, he and all his sons died in the life time of Rampratap Singh and were survived by him. Plaintiff Ratan Singh, consequently, claimed that he was entitled to the half share in Budkia jagir in Tikam Singh's line. The cause for the present litigation, according to the plaintiff, arose when on the 5th July, 1943, Bapulal (defendant No. 6 in the original suit) managed to have his son Prabhulal, the present appellant, taken in adoption by Mst. Kashibai defendant No. 3, widow of Shankerlal, in Bijapur in the former Baroda State. The plaintiff's case was that the said adoption was the outcome of fraud practised on Mst. Kashibai who was a parda-nashin lady, that it was also bad as no giving and taking had taken place, and that, in any case, Mst. Kashibai had no right to adopt in the presence of Mst. Laxmibai widow of Rampratap Singh who was the last holder in his branch and that the said adoption was also void and unlawful according to, what has been styled as, the Mourisala rules and the customary rules of adoption in force in the then State of Jodhpur, (where the jagir in question was situate) according to which the adoption of a distant collateral in the presence of a nearer one was not valid. The plaintiff, therefore, prayed for a declaration that the adoption of the defendant appellant Prabhulal was void and inoperative so far as the plaintiff's rights to the jagir of Budkia (one fourth share) was concerned, and for a further declaration that the plaintiff is entitled to be the jagirdar of Tikam Singh's half share in this jagir.
4. Defendant appellant Prabhulal resisted the suit on numerous grounds. It is not necessary to mention all of them for the purposes of this appeal because the contest before us between the parties centres on a few points only. These points are (1) that Mst. Kashi Bai had a right to adopt even in the presence of her mother-in-law Mst. Laxmibai and (2) that the adoption of the defendant appellant by Mst. Kashibai was perfectly valid according to the principle of Mouris-ala or the adoption rules inasmuch as he was also within the line of the original grantee Bagh Singh and that it was open to Mst. Kashi Bai to have taken anybody in adoption from Bagh Singh's line and (3) that no particular ceremonies were required for taking a son in adoption either in the former State of Jodhpur or in the former State of Baroda and that the giving and taking had certainly taken place. Defendant No. 6 Bapulal raised the same pleas as his son the defendant appellant did. Mst. Kashibai pleaded that she had been made to execute the deed of adoption by fraud and without explaining the same to her but she further contended that the plaintiff had no right to the half of Budkia Jagir so long as she was alive. The last contention was also raised by Mst. Laxmibai widow of the last holder Rampratapsingh. She also raised the contention that Mst. Kashibai had no right to take anybody in adoption in her presence. Defendants Nos. 4 and 5 Mst. Narbadabai and Jijibai widows respectively of Rajpal Singh and Shivlal Singh, uncles of the plaintiff Ratan Singh, accepted the allegations made by the plaintiff but contended that they have been unnecessarily dragged into the suit. Defendant No. 7 Raghuwar Prasad, brother of Bapulal, remained ex-parte.
5. The Civil Judge, Jodhpur, to whom this case was eventually transferred, finally disposed of it by decreeing the plaintiff's suit. His findings, so far as they are relevant for the purposes of the present appeal, may briefly be summarized as follows. According to the learned Civil Judge, Mst. Kashi Bai had no right of adoption under the Hindu Law in the presence of her mother-in-law Mst. Laxmi Bai and likewise, she had no right to take anybody in adoption qua the jagir of Budkia under the so called Rajput Adoption Rules which according to the learned Judge, also governed cases of adoption concerning jagirdars other than Rajputs. His further finding was that as the plaintiff was nearer her to the last-holder Rampratap Singh, the defendant appellant who was more remote could not have been adopted in the presence of the plaintiff. The learned Judge also found that as no ceremonies as to giving and taking in adoption had taken place, the adoption was also bad on this score. Aggrieved by this decree, the defendant Prabhulal has come up in appeal to this Court.
6. We may clear the ground by stating at the very outset that the present suit of the plaintiff is concerned with his alleged right to the jagir of Budkia only, and not with regard to any other property belonging to the last holder thereof, namely, Rampratap Singh. It is common ground between the parties that Budkia was granted in jagir to Bagh Singh by the then ruler of the former Jodhpur State in Smt. 1908 (see paragraph 2 of the plaint as also of the written statement filed by the defendant appellant). We find that there were special rules governing the right of succession and adoption in the case of jagirdars in the former State of Jodhpur to which we propose presently to refer. Suffice it to state at this place that there was undoubtedly what is called the Moris-ala rule, that is; the right of succession to a jagir granted by the State was to be confined to the persons claiming it from the line of the original grantee thereof. In the second place, there were certain rules governing adoption also in the case of jagirdars. It appears to us that there has been some confusion in the material placed before us in this connection as to whether the two rules put cumulatively constitute the so-called entire law of Mouris-ala, or that the doctrine of Mouris-ala is separate from the adoption rules but we consider that irrespective of the nomenclature, the requirements of a valid adoption in the case of jagirdars were governed by the principle of Mouris-ala as well as the adoption rules. In this view of the matter, we have not felt it necessary to examine the question of adoption of the defendant appellant by Mst. Kashi Bai under the Hindu Law, pure and simple, which question would indeed have arisen if the plaintiff's suit had related to property other than jagir as well. As we are concerned with an adoption in relation to the plaintiff's right to jagir, and as the matter is governed by special rules, we have thought fit, having regard to the conclusion at which we have arrived, to dispose of the question of adoption from this narrower aspect only.
7. The question for consideration, therefore, is whether the adoption of the defendant appellant Prabhulal by Mst. Kashi Bai is or is not in accordance with the special laws in force in the former State of Jodhpur in relation to jagirdars. We may at once point out that the Jodhpur State like several other States in Rajasthan enforced the doctrine of Mouris-ala in the matter of succession to all rent free land granted by the State (see rule 2 of the Rules relating to rent-free grants published in the Mar war Gazette dated the 28th April, 1923). This doctrine, put simply, is that if a jagir was granted by the State to A, then nobody outside the line of this original grantee A could lay any claim to this jagir, and if the claimant was a person outside such line, the jagir reverted to the State. It was not seriously disputed before us that this principle would apply in the present case. Nor would such a contention have any force if it was raised because the rules relating to rent-free grants in force in the Jodhpur State clearly embody the application of the principle of Mouris-ala to rent-free grants. The defendant appellant's answer, however, is that no exception could be taken to his adoption by Mst. Kashi Bai, because he certainly is within the line of the original grantee Bagh Singh to whom the jagir was granted in the first instance by the then Maharaja of Jodhpur State in Smt. 1908. This is perfectly correct so far as it goes. The further contention raised on behalf of the plaintiff respondent, however, is that an adoption to a jagirdar in Marwar was required to conform to a two-fold requirement. Firstly that it did not fall within the mischief of the Mouris-ala doctrine i.e that the adoptee was within the line of the Mouris or the original grantee; and, secondly, that there were certain other rules called Jagirdars Adoption Rules to which also the adoption made in a particular case was required to conform. The rules which have been brought to our notice in this connection have sometimes been called the Jagirdars Adoption Rules and sometimes Rajput Adoption Rules only, the implication of the designation being that these rules governed adoption among Rajputs only. To our mind, the designation suggesting the restriction of these rules to Rajputs as a community as distinguished from the class ‘jagirdars’ as a whole is a misnomer because if any special rules were required to be made in this connection, they were required to be made in the case of jagirdars rather than in the case of Rajputs as a community. In order to make our meaning clear we would quote these rules in extenso.
Extract from the Marwar Administration Report for the year 1895–1896.
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(1) The nearest kin is to be adopted as son and heir and in his presence no distant cousin can be adopted.
(2) If there be more than one cousin equally related, the person who wishes to adopt, has the option to select one out of them as his son and heir.
(3) If it be proved that the rightful claimant attempts to murder the person who is to adopt or his issue or even abets in such an attempt, his right to adoption and succession ceases.
(4) If any heir-presumptive be blind, maniac, deaf and dumb, hermaphrodite or suffering from a fatal disease or of so depraved a character as is likely to bring ignomy and ruin to the Thikana, his right will be forfeited.
(5) It the heir-presumptive be more than 50 years of age, his selection will entirely depend on the choice of the person, who adopts.
(6) Right will be regulated and observed in accordance to the nearness in scale of genealogical tree.
(7) If any heir-presumptive rejects the offer as regards himself or his son, his right will cease and the claimant, who stands next to him in the grade will be eligible, provided the offer of being selected as heir is conveyed in writing through the head or eldest member of the family or clan.
(8) If any person declines to give his son in adoption and wishes himself to be adopted, it is not compulsory to the person, who is to adopt, to adopt the former as his son.
(9) A person adopted, before the law comes into force, in a family distantly related, from the time of his adoption, his and his descendants' right to the original stock will be regulated not from his real father, but from the “Mouris-ala” of the family, in which, he has been transferred by adoption.
(10) If the Jagirdar does not adopt any one as his son and heir during his lifetime, his Thakrani can adopt, subject to the limitations, referred to above.
(11) If there be two or more widows of the last holder surviving, the right to adopt or to disqualify any of the claimants to adoption under sec. 3 or 6 of these rules shall vest in them in the order of their seniority inter se. In the absence of the widows this right shall vest in Majis in the order of their seniority inter se.
An adoption deed should be executed and witnessed by the Bhaipa:—
(1) Provided that nothing in this rule shall affect the right of the husband to authorise his junior widow to adopt to the exclusion of his senior widow.
(2) Provided also that any authority so conferred shall be valid only during the life time of the junior widow to whom it is conferred and the provisions of this rule shall revive if the junior widow dies without making any adoption under authority from her husband.
(12) If the Jagirdar dies childless and his widow also without adopting a son and heir, the leading members of his family will then be entitled to nominate his successor in accordance with these rules; but if he be not a Jagirdar, his land and property will revert to the rightful heir.
(13) When a Jagirdar dies without leaving an issue and adopting a son, the adoption must as far as possible take place within 12 days after his death.
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8. We have no hesitation in saying that these rules are not very happily worded 1 but at the same time the intention, to our mind, of the framers of the rules clearly was that they were to apply to jagirdars and not merely to Rajputs as such. Thus rule 10 in so many words provided that if a jagirdar did not adopt anyone as his son and heir during his lifetime his ‘Thakurani’ could adopt subject to the limitations referred to in the rules preceding that rule. Then rule 12 provides that if the “Jagirdar” and his wife both die without adopting a son and heir, the choice of a son by adoption would be left to the leading members of his family in accordance with these rules. Rule 13 also refers to a “jagirdar” dying without leaving a male heir of his body or without adopting a son and requires that any adoption made after his death should ordinarily be made within 12 days thereof if it is to be recognised by the State. Earlier, under Rule 4 certain persons are disqualified from being adopted, these being persons who suffer from serious physical disabilities mentioned in the rule or who are unfitted by gross depravity of character to hold a jagir and the reason stated for the disqualification is that the adoption of such persons might be a source of infamy or ruin to the “Thikana”. We are disposed to think that rules of adoption like these are in the nature of special rules made for a special object and the framers thereof must have felt the necessity to make them not because they were to operate with respect to the members of a particular community e.g, Rajputs, but because they were envisaged to operate with respect to grantees of jagirs from the State, and we are convinced that these rules were not intended to apply to mere Rajputs as such who may or may not be holders of such grants. We cannot also ignore the factor that jagirs were not limited to members of the Rajput community only and many a time members of other communities were also grantees of jagirs from the State. It may, however, be that because a large number of “Jagirdars” came from the community of Rajputs, these rules came to be loosely called as “Rajput Adoption Rules” but we consider that really they are applicable to all “jagirdars”, that is, persons holding jagirs from the State. They are, therefore, more appropriately called Jagirdars Adoption Rules as indeed they have been sometimes so referred to in the material placed before us. As we are of opinion that the question of adoption in the present case relates to a jagir admittedly granted as such to their common ancestor Bagh Singh—the parties before us must be held to be bound by them even though they do not belong to the Rajput community.
9. The most important rule, for our present purposes, is rule No. 1 which provides that the nearest kin is to be adopted as son and heir, and that in his presence no distant cousin can be adopted, and then, rule 2 further provides that if there are heirs equally related to the last holder, then the adopt or may adopt any body out of them. Again, under these rules, the right of adoption is given, in the first place, to the “jagirdar” himself, that is, the last holder of the jagir, and if he dies without making any adoption, then to the widow of such last holder. Then, again, if there are two or more widows of the last-holder, the right to adopt goes to them in the order of their seniority and in the absence of such widows, the right has been vested in the Maji or Majis, that is, the mother or step mother, in the order of their seniority. It also seems to us that the scheme of these rules is to vest the right of adoption in one single individual at one time and not more than one (except in the last resort where the right is vested in the bhaipa or the leading members of the family), and this might have been deemed expedient to prevent confusion which would be likely to arise otherwise, if the right were to vest simultaneously in all the widows, or in their absence, in the majis of the last holder. It is clear that if these rules are applicable in the present case, as we think they are, they forbid the adoption of a distant relative in the presence of a nearer one.
10. It was strenuosly contended by learned counsel for the defendant appellant that these rules became devoid of all force as a subsequent set of rules were enacted by the State vide the notification published in the Marwar Gazette dated the 21st April, 1917. These rules lie in brief compass and may be cited in extenso here.
“(1) All immovable property originally granted by the State or by a Thikana shall be governed by the laws of Mouris Ala, that is, that the heirs to this property must be within the line of the original grantee.
(2) Adoptions are not to be restricted except under law of Mouris-Ala, and will be governed by rules of law applicable to each case.
(3) Except in case of property subject to Mouris-Ala rules, all heirs of a deceased person according to the law to which he is subject will be recognised and only in case of failure of a legal heir, his property will escheat to the Darbar or to the Thikana in which such property is situated or is found.”
11. These rules are published in the State Gazette under the signature of the then Musahibala of the State, Shri Merwanji Pestonji. We shall assume for our purposes that they were sanctioned by His Highness the Maharaja who was the sovereign legislative authority in the State as it then was. Now, what we are pressed to hold on the strength of rule 2 above is that the requirement of proximity of relationship under the Adoption Rules of 1895–1896 (equal to Smt. 1952) was done away with by rule 2 of the Rules of 1917, and that, after 1917, the only requirement for a valid adoption even in the case of adoption to a ‘Jagirdar’ was that the adopted son must be within the line of the original grantee of the jagir and that the requirement of proximity of relationship had been dispensed with. The argument is plausible, but after a very careful and anxious consideration of the whole matter, we feel constrained to reject it. In the first place, we may point out that the rules of 1917 do not expressly repeal the Adoption Rules of 1895–1896. Do they then repeal the latter rules by necessary implication? We think not. We may point out in this connection that the underlying objective for initiating the rules of 1917 was that as there was varying practice in different parts of the former State of Marwar as to when the property (this being of all kinds granted by the State or a Jagirdar or not) of the last holder having died heirless was liable to escheat to the State or to a jagirdar, it was considered necessary to standardize the law relating to escheat, and certain rules were initially suggested by the then Chief Judge who was also the Judicial Minister, and then the rules, as have been quoted above, are said to have been sanctioned. We entirely agree in the words of a decision of the Ijlas-i-khas of the former Jodhpur State in Devisingh v. Mst. Chandari (1), that the notification of 1917 cannot by any means be given the credit of a very happily worded or carefully drafted enactment. Be that as it may, we are far from satisfied that the law relating to adoptions in the case of jagirdars as laid down in the Adoption Rules of 1895–1896 was swept away by any rules framed for the purpose of regulating the right of escheat arising on the death of an heiress person with respect to the entire property held by him. We wish to emphasize once again that these rules were framed principally for the purpose of standardising in jagir areas the practice as to escheat of property of a holder who died without leaving a male heir of his own body and they govern all kinds of property, movable or immovable and whether held under a grant from the State or Thikana or not by such holder. Our analysis of these rules is this. In the first place, they clearly enacted the principle of Mouris-Ala with respect to all property granted by the State or a Jagirdar, that is, no person outside the line of the original grantee would be recognised as a heir (Rule 1). In the second place it was enacted that if the last holder died without a lineal male descendant and an adoption was sought to be made to the former, then such adoption must also be subject to the principle of Mouris-ala. In other words, no person outside the original grantee could be validly adopted (Rule 2). This second rule generally removed all other fetters on the right of adoption. Perhaps as things stood at that time, some Jagirdars did not permit adoptions on fanciful grounds with a view to secure escheat of a deceased's estate to the Thikana even with regard to his movable property and this was rightly felt to be an unwarranted hardship and such unreasonable restrictions were henceforward to go. But at the same time this rule went on to provide that such adoptions would still “be governed by rules of law applicable to each case”. That is to say, if there be any special rules or laws as to adoption relating to any particular class of persons or property as distinguished from persons who are non-Jagirdars or in relation to non-jagir property the applicability of such laws was still preserved. Apart from such laws, whether prescribed by the personal law or special laws in the case of a particular class of persons, such as holders of jagirs from the State, all other fetters on adoption were to go. On this view the adoption rules of 1895–1896 applicable to Jagirdars would hold good still under the last clause of Rule 2, Lastly, Rule 3 enacts that save as respects grants from the State or the Thikana to which the principle of Muris-ala applied the rest of the property of a person, dying issueless, would go to his heirs according to his personal law, and it would only be on the failure of such heirs that the property was to escheat to the State or the Thikana as the case may be. If the above analysis of the notification of 1917 is correct, as we think that in is, it would be wrong to say that the restrictions imposed as to adoptions in the case of Jagirdars were no longer to hold good, being special rules of law which were formerly applicable to them as it would be to say that by the said notification the rules of the Hindu law of adoption in the matter of giving or taking or as to competency of the parent giving or taking in adoption had all been brushed aside so far as adoptions in the case of non-jagirdars or to non-jagir property were concerned. Our considered opinion, therefore, is that the adoption Rules of 1895–1896 were not at all repealed by the notification of 1917, and in fact, they were preserved within their own ambit.
12. We are fortified in the conclusion to which we have come by the state of subsequent legislation which definitely negatives the theory of the Jagirdars' Adoption Rules' repeal. Thus we find that these Adoption Rules were first amended in 1933 and again in 1934 and they came for express repeal in 1949. The first notification which is dated the 28th October, 1933, and was published in Jodhpur Government Gazette dated the 4th November, 1933, is in these terms:—
It is hereby notified for general information that His Highness the Maharaja Sahib Bahadur has been pleased to sanction the amendment of Rule 11 of the Jagirdars' Adoption Rules so as to read as under:—
If there be two or more widows of the last holder surviving, the right to adopt or to disqualify any of the claimants to adoption under sec. 3 to 6 of these rules shall vest in them in the order of their seniority inter se. In the absence of the widows, this right shall vest in Majis in the order of their seniority inter se.
13. Again, by Council Resolution No. 6, dated February 26, 1934, it was provided as late as 1934, that
“For the purposes of adoption under the Rajput Adoption Rules of Smt. 1952 if the nearest common ancestor of the last holder and various claimants is the same, such claimants are equally eligible for being selected for adoption to the last holder. On the other hand, if the nearest common ancestor of the last holder and some claimants, is more remote in degree from the last holder than the nearest common ancestor of the last holder and other claimants, the former group of claimants is superseded by the latter group as regards eligibility for adoption to the last holder.”
14. These amendments clearly indicate that the adoption rules of 1895–1896 were in force right up to 1933 and 1934 and that they had not been repealed at any time during the intervening period. This also lends indirect support to the interpretation which we have placed on the Rules of 1917 as being the correct one. We may as well point out here that the rules of 1895–1896 were expressly repealed in 1949 under sec. 2(1) of the Marwar Land Revenue Act (No. XL) of 1949 (See schedule III). It is impossible, therefore, to accept the contention of learned counsel for the defendant appellant that, after 1917, the only restriction on adoption, in the case of Jagirdars, was confined to the operation of the doctrine of Mouris-Ala, strictly called, and that the other important principle which restricted adoption in such cases on the ground of nearness of relationship to the last holder was done away with.
15. We would next like to refer to the Marwar Land Revenue Act, 1949, in this connection, as, in our opinion, that Act also throws a flood of light on the question under consideration. In Chapter X of the said Act, we have under the heading “Sucession”, a series of sections beginning with sec. 172. Sec. 172 provides that, subject to the provisions of this Act and of any other law in force, succession to all grants from His Highness the Maharaja shall be in accordance with the personal law to which the deceased landlord is subject. Sec. 176 then provides, among other things, that a person who is not a natural lineal descendant in the male line of the original grantee shall not be entitled to succeed (whether by adoption or otherwise). This is the well known Mouris-ala rule. S. 177, 178 & 179 then provide for adoption. Sec. 177 provides that a person may succeed to a grant by adoption according to law, but no person shall so succeed to the exclusion of a nearer heir, unless such nearer heir is more than 50 years of age on the date of adoption, or unless such nearer heir is the father of the person adopted. It also provides that a person making the adoption may adopt any among those who bear an equal degree of relationship to him. Lastly it provides that if such heir or his son has refused an offer for adoption, his right shall cease and in such a case the next distant heir could be adopted. Sec. 178 inter alia lays down that on the death of a landlord without a lineal male descendant and without having adopted any one entitled to succeed to the grant, his widow may adopt a son and that if there be more than one widow, the right to adopt shall vest in the senior widow, and in the absence of the widow of the last holder, the right shall vest in the maji, and if there be more than one maji, the right shall vest in the senior maji. Sec. 179 re-enacts the principle that no Rao Raja (son of a ruler by a concubine) would be entitled to succeed to a grant by adoption. It is important to bear in mind that the Marwar Land Revenue Act was brought into force on the 6th April, 1949, just a day before the former Jodhpur State actually integrated in the new set-up. After very careful and anxious consideration, we think it right to observe that the rules as to succession by adoption, having regard to the limitations which were imposed on the right of adoption under the Act, had certainly not been introduced for the first time on the eve of integration but were a clear recognition of the old state of law governing adoptions in the case of holders of jagirs from the State for a long time past. Indeed, it is inconceivable that if this was not a restatement of the law which existed before and which was well recognised in the territories of the former State of Jodhpur, the State administration should have embarked upon such an adventure just a day prior to its integration in the new State. In fact, the provisions contained in the Land Revenue Act bear a remarkably close resemblance to the Adoption Rules of 1895–1896 coupled with the rule of Mouris-ala, strictly so called.
16. Having regard to this state of the law, we are firmly of the opinion, though we should like to add that our path has not been so smooth or clear as we might have wished it to be, that the right of adoption in the case of a jagirdar in the former State of Jodhpur whether under the adoption-cum-mourisala rules before 1949 or under the Marwar Land Revenue Act, 1949, is, broadly speaking, circumscribed by a two-fold restriction: the first being that the adoption should be limited to persons falling within the line of the original grantee of the jagir, and, secondly, that a nearer heir shall exclude the more remote for this purpose. It also follows from the state of law which we have already discussed above that the right of adoption is vested, in the first instance, in the last holder of the jagir—and, be it noted, that he was to be a male only— and not a member of the female sex,—and next in order and after his death, in the widow of the last holder, and where there be more than one widow, to the senior widow, and lastly, in the absence of a widow, the right is to vest in the Maji, that is, the mother, and if there be more than one widow of the father of the last holder, then the senior Maji. This clearly shows that the scheme of these rules was to regulate the right of adoption to a jagir in such a way that it would be limited to one person at one time, and that one person would be either the last holder or the last holder's widow or the senior widow if there is more than one widow where a widow or widows survived the last holder.
17. Applying these principles to the case before us, we are of opinion that the adoption of the defendant appellant Prabhulal cannot be sustained in the presence of the plaintiff respondent Ratan Singh being a nearer heir to the deceased Rampratap Singh because it has been made in the teeth of the well recognised law throughout the territories of the former State of Jodhpur that an adoption to a jagir must be confined to the nearest heir (of course within the line of the original grantee) unless such heir has refused or under certain other conditions, which do not arise in this case but which we find provided for under the law. We further consider that if Mst. Laxmi Bai wished to adopt anybody to her husband, she certainly had the right to do so, of course within the limits of the law; and, that being so, Mst. Kashi Bai would have no simultaneous right of adoption and therefore the adoption of the defendant appellant by the latter cannot be held to be valid for want of authority in the adoptive widow. In this view of the matter, our conclusion is that the adoption of the defendant appellant Prabhulal by Mst. Kashibai so far as the jagir of Budkia is concerned, is invalid and cannot be recognised.
18. Learned counsel for the appellant invited our attention to the decision of the Chief Court of the former State of Jodhpur dated the 18th March, 1916, in Vakil Thikana Mudiyar v. Widow of Ramnath Singh. The parties in that case were Charans. The widow of Ramnath Singh adopted one Chimansingh and the plaintiff challenged his adoption on the ground that the adoption had been made from outside the Muris-ala line. The defendants appear to have contended by virtue of an earlier judgment of the Chief Court dated the 9th July, 1886, that the rule of Muris-ala did not apply to Charans. The learned Judges repelled this contention and held that the rule of Muris-ala was applicable to holders of Sansan or charitable grants from the State. While discussing some of the cases in this connection, they referred to a case relating to the community of Charans in which it appears to have been held that among Charans it was not necessary to adopt a near relation or to reject a distant one Learned counsel for the appellant places his reliance on this observation in the certified copy of the judgment in the Vakil Thikana Mudiar case, and asks us to hold on the strength of this observation that the adoption of Prabhulal in the presence of a nearer relation Ratan Singh in the case before us is valid. We are afraid we cannot accede to this argument. In the first place the judgment of the Chief Court wherein the observation relied on occurs has not been brought to our notice and a mere reference thereto in the judgment in the Mudiar case is and can be no justification for us to accept the view that among holders of charitable grants such as Charans or Raos to which community the parties before us belong, the Jagirdar Adoption Rules do not apply. Nor are we informed as to the reasoning on which such a view was or could be based. As to the judgment in the Mudiar case, the point for decision simply was whether an adoption among Charan Jagirdars was or was not subject to the rule of Muris-ala and it was held that it was. This decision, in our opinion, is and can be no authority for holding that in the community of Raos, to which the parties in the present case belong, the general rule applicable to Jagirdars which excludes the adoption of a remote heir in the presence of a nearer one is not applicable.
19. Having regard to the conclusion at which we have arrived above, it is strictly not necessary for us to express our opinion on the question whether this adoption was also bad, on the other alleged ground that no ceremony of giving and taking had been observed at the time of the adoption. The finding of the learned Civil Judge is that there is no satisfactory proof adduced on the side of the defendant appellant that the giving and taking had taken place at all. So far as the principle of giving and taking for the validity of an adoption is concerned, it was considered at length by a Bench of this Court in Bhajan Das v. Nanu Ram (2). It was held there that the physical act of giving and receiving is absolutely necessary to the validity of an adoption and that adoptions in the former Jodhpur State were no exception to this rule. It was pointed out, however, that where the adoption deed itself mentioned that the boy had been given and received in adoption, this would give rise to a presumption that the recitals in the deed had been truly made, and in such a case it was for the party challenging the adoption to show that such giving and taking could not have taken place. Now, we find in the present case that both the adoptive mother and the natural father of the adopted son were parties to the deed of adoption, and the deed clearly mentions that Mst. Kashibai made a demand upon defendant Bapulal to give his son Prabhulal in adoption and that Bapulal accepted this offer. The deed further mentions that the usual scriptural ceremonies had been performed on the 5th July, 1943, and that Bapulal had given his son in adoption to Mst. Kashibai. In these circumstances, we have no hesitation in saying that the requirement as to giving and taking was fully satisfied in this case and that the finding of the learned Civil Judge that the adoption was bad on this score is wrong and cannot be sustained. This finding does not, however, affect the conclusion at which we have already arrived that the adoption of Prabhulal by Mst. Kashibai is bad because Prabhulal stands excluded for purposes of adoption by a nearer heir, namely, the plaintiff respondent Ratan Singh, and that Mst. Kashibai was not entitled to adopt anybody to the jagir held by her father-in-law Rampratap Singh in the presence of the latter's widow Mst. Laxmibai.
20. Lastly, it was contended before us that as the jagir in the present case has been resumed by the State in pursuance of the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act (No. VI) of 1952, we have no jurisdiction to decide any question of title at this date as by sec. 37 of the said Act, such questions, after the resumption, have been left to the decision of the Jagir Commissioner and it is for him to make an inquiry as to any question relating to title, right or interest in any such jagir, and sec. 46 of the Act gives him exclusive jurisdiction in the matter. This question came recently for consideration before a bench in Rajvi Abhey Singh v. The State Of Rajasthan (3) to which one of us was a party wherein sec. 37 of the Rajasthan Land Reforms and Resumption of Jagirs Act (hereinafter called the Jagir Resumption Act) along with secs. 3 to 6 of the Rajasthan Jagir Decisions and Proceeding (Validation) Act (No. 18) of 1955 (hereinafter called the Validating Act) were thoroughly analysed and examined. We need not repeat all that has been said there. The resultant position is briefly this.
21. It has been laid down that sec. 37 of the Jagir Resumption Act is attracted into application where a jagir has been resumed and a question of title, right, interest to or in a jagir arises for decision and such a question is not of the nature referred to in sec. 3 of the Validating Act, that is, a question either relating to succession or resumption of jagirs under the laws of the covenanting States. Further, even within the ambit reserved for the Jagir Commissioner as mentioned above, the position is that he will have no jurisdiction to decide a question of title to or interest in a jagir where such a question has already been decided by a competent authority. The contention that the decision to be final should have been decided by the final court of appeal before the Jagir Commissioner's jurisdiction can be excluded, was also examined and repelled, and it was held that the Jagir Commissioner would have jurisdiction to deal with matters which may be pending before the first court or authority concerned; and that where the matter has been already decided by a competent authority, the Jagir Commissoner's jurisdiction is excluded under sec. 37. In other words where questions of title apart from succession or resumption under the law of a covenanting State arise after resumption of the jagir for the first time, such questions must be taken to the Jagir Commissioner, but where questions of succession or resumption under the laws of the covenanting States do arise, they must as a rule be taken to the forum provided by the Validating Act. Now let us look at the present case in the light of the principles mentioned above. The present case raises a question of succession under the laws of the former State of Jodhpur. In view of the decision in Rajvi Abhey Singh's case, this question is clearly outside the scope of sec. 37 of the Jagir Resumption Act, as the latter section only gives the Jagir Commissioner authority to deal with questions relating to title, right or interest other than those of succession or resumption under the laws of a covenanting State. The next question that arises is whether the Validating Act ousts our jurisdiction. The answer depends upon whether the question of succession arising in this case was and is one which, under the laws of the former Jodhpur State, was properly and exclusively triable by a revenue court or authority. If the question of succession was exclusively triable by a revenue authority or court, then neither the court below nor this Court would have any jurisdiction to entertain it. Having given our very careful consideration to this aspect of the matter, we have arrived at the conclusion that the question of succession arising in this case was not one which was by law or custom triable exclusively by a revenue authority. We are satisfied that it was only in respect of Jagirs which were, in matters of succession, subject to the rule of primogeniture that the revenue authorities alone were concerned with enquiring into or deciding upon a question of succession. In other cases the State did not as a matter of custom interfere at all and mutations were not required to be recorded and parties were allowed to have their rights adjudicated upon in the civil courts, of course according to the principles of law laid down either under the personal law or special rules governing adoption etc. in such cases. We have felt strengthened in this conclusion by the circumstance that when Ratansingh approached the revenue authorities and challenged the adoption of the appellant, he was directed to seek his remedy in the ordinary courts of the State. We may also refer in this connection to the law laid down under the Marwar Land Revenue Act of 1949 as that also reveals the true position in our judgment. Sec. 188 provides that all un-disputed cases of succession of scheduled jagirs shall be reported by the Deputy Commissioner directly to the Government for the orders of His Highness the Maharajah. Then sec. 189 provides the procedure for disputed cases of succession to scheduled jagirs and lays down that the Deputy Commissioner shall make an enquiry into such cases and submit his opinion to the Board of Revenue and the Board in their turn shall record their opinion and submit the same to the Government for the orders of His Highness. Sec. 182 provides that succession in the case of scheduled jagirs will be governed by the rule of primogeniture. Lastly, we may refer to sec. 233 which is in these terms:—
“Except as otherwise provided in this Act, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the Government or any Revenue Court or Officer is by this Act, empowered to determine, decide or dispose of.”
22. The combined effect of these sections is, as we have stated above, namely, that in the former State of Jodhpur the revenue courts or authorities were given exclusive jurisdiction under the Marwar Land Revenue Act, 1949, to deal with questions of succession relating to jagirs governed by the rule of primogeniture only. The same position obtained by virtue of custom before 1949. So far as the present jagir is concerned, it is admittedly a Sansan jagir and was one wherein the rule of gavel kind and not of primogeniture prevailed. In this state of affairs, we have no hesitation in arriving at the conclusion that the trial court was properly seized of the case and had lawful authority to adjudicate on the questions of succession and adoption which were presented to it for determination and was not prevented from so deciding them by any rule of law or custom to the contrary. It hardly admits of question that on this view we have authority to decide the same matters in appeal. Neither sec. 37 of the Jagir Resumption Act nor the Validating Act affects this position in any way. We accordingly over-rule this objection.
23. In view of the foregoing reasons, this appeal has no force and is hereby dismissed. We have to point out, however, that the operative part of judgment of the learned Civil Judge and the decree passed by him contains a slight error wherein after saying that he was passing the decree in favour of the plaintiff to the effect that he was the owner of half village Budkia and the adoption deed executed by Mst. Kashibai in favour of Prabhulal was invalid and ineffective, he further added the words “so far as the plaintiff and the Jagir Budkia is concerned.” We have no doubt that by the expression “so far as the plaintiff and the Jagir Budkia is concerned” what the learned Judge meant to say was “so far as the plaintiff's right to the jagir Budkia is concerned”, and we make this varbal amendment accordingly. The appellant shall pay the costs of this appeal to the contesting respondent.