JAGAT NARAYAN, J. - (1.)THIS writ petition has been referred for decision to a Full Bench along with C. B. Civil writ Petition No. 4/57 as some common important questions of law arise in them. As however the facts in the two cases are different, it will be more convenient to deal with the two cases separately.
(2.)D. B. Civil Writ Petition No. 187/56 is directed against an order of the Board of Revenue dated 12. 9. 56 refusing to sanction Matmi in favour of Jai Singh petitioner and sanctioning it in favour of Sobhag Singh respondent No. 1 in respect of the Jagir held by one Sabal Singh who died in 1948.
Sabal Singh was a Panchpana Sardar of Sheikhawati which formed part of the domains of the erstwhile State of Jaipur. One Nahar Singh was the common ancestor of the parties. Nahar Singh had four sons Lachman Singh, Pem Singh, Bhairon Singh and Bha-wani Singh. Lachman Singh was the eldest out of them. On the death of Nahar Singh his estate was divided amongst these four sons. The estate of Bhairon Singh was known as Jhakora Thikana. On the death of Bhairon Singh, his two sons Devi Singh and Moti Singh succeeded to the estate in equal shares. Devi Singh was the elder of the two. Sobhag Singh respondent No. 1 comes form Devi Singh's line.

Moti Singh adopted Devi Singh's son Mangal Singh. Mangal Singh had two sons-Baney Singh and Chhattar Singh. Chhattar Singh died heirless. Baney Singh died leaving a son Dungar Singh. Dungar Singh adopted Sabal Singh. This Sabal Singh came from the line of Lachhman Singh.

In 1930, Sabal Singh adopted Jai Singh petitioner who also came from the line of Lachhman Singh. In 1933 he applied to the Ruler of Jaipur for recognition of this adoption for purposes of succession to the Thikana. Sobhag Singh respondent, Mohan Singh, Guman Singh, Man Singh and Khet Singh belonging to the line of Devi Singh filed objections against the recognition of the adoption. The Council of State which consisted of the Ruler of Jaipur and his Advisers passed the following resolution on 23rd May,1936 on this subject: - (a) "thakur Sabal Singh of Jhakora be informed with reference to his petition dated the 3rd November, 1933, that while his wishes for recognition of the adoption of Jai Singh of Mahensar branch by him will receive due consideration, His Highness in Council sees no reason at the present moment to recognise the adoption advocated by him; (b) The alleged adoption of Jai Singh shall in no way be deemed to be an adoption that will in any sense bind the Darbar as regards the question of succession. (c) Thakur Sobhag Singh and other objectors be also informed of the above order and it should be made clear that the Council considers it unnecessary at present to adjudicate as regards the question of succession".

A review petition, filed by Sabal Singh on the subject, was rejected on 28. 10. 1937 on the ground that in view of the Council Resolution dated 23rd May, 1936 no further action was necessary.

On 16. 6. 1947, Sabal Singh filed an application to the Prime Minister of the former State of Jaipur for the recognition of the adoption of Jai Singh for purposes of succession at an early date as he was apprehending that he might die at any time. This application was sent to the Board of Revenue for inquiry and report under the Jaipur Matmi Rules, which were framed by the Government of Jaipur in 1945. The Board submitted a report to the effect that in view of the Council Resolution dated 23rd May, 1936 the application was not maintainable as Sabal Singh was still alive. Before this report reached the Prime Minister, Sabal Singh died on 28. 1. 1948 and the Prime Minister again sent back the application for inquiry and report. The Nazim to whom the matter was referred for inquiry refused to record evidence about the factum of adoption on the ground that the adoption could not be recognised for purposes of succession in view of rule 14 (2) of the Jaipur Matmi Rules as Sabal Singh had not obtained the sanction of the Government before taking Jai Singh in adoption. R. 14 (2) runs as follows: - "no adoption shall be recognised for the purposes of succession to a State grant unless a holder has obtained the previous sanction of the Government to adopt, such sanction being given only in favour of a direct male lineal descendant of the original grantee. "

On appeal, the Revenue Board held that in view of the wordings of the Council Resolution dated 23rd May, 1936 and the fact that the Revenue Board did not give a definite finding in 1947 the inquiry into the factum of adoption could not be shut out. The case was sent back to the Nazim for proceeding further with the inquiry. The Nazim thereafter recorded evidence of the parties and held that factum of adoption had been established, but that in view of R. 14 (2) the adoption could not be recognised for purposes of succession to the Jagir as previous permission to adopt had not been taken. He however held that Jai Singh had a preferential claim to succeed to the grant under rule I4) (1) over the other claimants as he belonged to a more senior line of the original grantee in comparison to them. R. 14 (1) runs as follows: - "subject to the provisions of rule 13, succession in the absence of a direct male lineal descendant of the last holder shall be restricted to the lineal male descendants of the original grantee, preference being given to the senior member of the senior line. " He accordingly made a recommendation that Matmi be granted in favour of Jai Singh. The Collector agreed with the finding of the Nazim on the question of the recognition of Jai Singh as a successor to the grant on the ground of his adoption. But he did not agree with him with regard to Jaisingh's preferential claim over other claimants to succeed under rule 14 (1)-The Collector was of the opinion that on the death of Nahar Singh the estate was divided between his sons and consequently Nahar Singh could not be regarded as the original grantee of the grant held by Sabal Singh. He was of the view that Bhairon Singh should be regarded as the original grantee for purposes of succession to Sabal Singh's estate. As Jai Singh did not belong to Bhairon Singh's line, he was of the opinion that Sobhag Singh was entitled to the grant, being the senior member of the senior line reckoning from Bhairon Singh.

On the above recommendation the Board of Revenue passed the impugned order on the following two grounds: - " (1) that Nahar Singh could not be regarded as the original grantee the question of succession to Sabal Singh arises but that Bhairon Singh should be considered to be the original grantee. (2) that although Jaipur State Matmi Rules 1945 were not applicable to the case as these rules were not retrospective, even before these rules came into force a Panchpana Sardar had to obtain the sanction of the Ruler for taking a son in adoption and Jai Singh could not be recognised as a successor to the grant of Sabal Singh on the ground of his adoption as such adoption was not recognised by the Government of Jaipur for purposes of succession. "

(3.)THE case of the petitioner is that the Board of Revenue committed errors apparent on the face of the record and their decision should be quashed by this Court under Art. 226 of the Constitution. All the grounds on which the Judgement of the Board of Revenue was attacked before us were not taken in the petition. But new grounds were allowed to be raised by the Division Bench before which the case came up fore hearing and which made the present reference. THEse grounds were mentioned in the order of reference and the parties had full notice of them when the case was argued before us.
With regard to the first ground, the contention on behalf of the petitioner is that the Board committed an error on the face of the record in holding that Bhairon Singh should be regarded as an original garntee in relation to the question of the succession to the grant held by Sabal Singh. The respondents tried to support the finding arrived at by the Board on this point on the basis of the reasoning given by them.

The relevant provisions of the Jaipur Matmi Rules 1945 in this behalf are as follows: - R. 13. "the eldest real son of the last holder or if such son is dead, such son's eldest real son or eldest real grand-son is entitled to succeed, unless in the opinion of the Ruler he is unfitted to succeed by reason of serious mental or physical defect or disloyalty; Provided, firstly, [that in the case of the panchpana sardars of Sheikhawati and the bhomias of Udaipurwati, the grant shall devolve on all the surviving real sons and the real sons or grand-sons of predeceased sons of the last holder in accordance with local custom unless in any particular case His Highness the Maharaja Sahib Bahadur has recognised that the ordinary rule of succession by male lineal primoganiture shall apply; R. l4 (1) "subject to the provisions of rule 13, succession in the absence of a direct male lineal descendant of the last holder shall be restricted to the lineal male descendants of the original grantee, preference being given to the senior member of the senior line;

We may mention here that although the validity of the Jaipur Matmi Rules 1945 was challenged before us it was not disputed that so far as Nahar Singh's branch of Panchpana Sardar is concerned the grant devolves in accordance with the custom and usage embodied in the above provisions.

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