- (1.) THIS appeal under sec. 39 of the Rajasthan Land Reforms and Resumption of jagirs Act, 1952 (hereinafter referred to as the Act) has been filed against an order of the Jagir Commissioner, Rajasthan, dated 30. 12. 1957 whereby the appellants' claim for grant of maintenance allowance from the compensation payable to the respondent was rejected.
(2.) WE have heard the learned counsel for the parties and have examined the record as well. Before examining the merits of the case we may dispose dispose of a legal objection raised by the respondent's counsel as regards validity of sec. 27 read with sec. 32 of the Act. The contention is that as the Parliament enacted the Hindu Adoption and Maintenance Act, 1956 (Act 78 of 1956) and as the same received the assent of the President the provisions regarding maintenance in the Act should be deemed to be inoperative by virtue of the provisions in Art. 254 of the Constitution. This Article runs thus: - 254. (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law nude by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament whether passed before or after the law made by the Legislature of such State, or as the case may be, the existing Law, shall prevail and the law made by the legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State specified in Part A or Part B of the First Schedule with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to the matter, then, the law so made by the Legislature of such State, shall if it has been reserved for the consideration of the President and has received his assent, prevail in that State: - Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. " A reference has also been made in this connection to item No. 5 of the List III of the Concurrent list of the 7th Schedule of the Constitution, which runs thus: - 5. Marriage and divorce; infants and minors, adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. " The contention is that as the maintenance is a question to be determined with reference to the personal law the legislation enacted by the Central Parliament being on a subject included in the Concurred List would prevail as against the State Legislature. To our minds this contention is based on a mis appreciation of the nature of maintenance which forms the subject matter of this controversy. The appellants do not base their claim for maintenance under any of the provisions of the Hindu Law. Their claim is based on the Jagir Law governing the question of maintenance in the former Bikaner State. This law is to be found in notification No. 36 dated 23rd April, 1942 issued by the General Minister under the command of the Ruler of that State. The preamble of this notification lays down that "it has been noticed that the Sardars, Umraos and other Jagirdars have been ordered to pay maintenance to their Chhutbhaiyas, Majis Dadijis etc. without any uniform principle which was led to numerous complaints from both the parties, wherein the amount of maintenance is alleged to be highly excessive or utterly inadequate. With a view to remove thee complaints and to provide a satisfactory basis for the determination of deputes these Rules are issued by the Government in copulation with the Sardar Advisory Committee. " These Rules are divided into two parts, the first dealing with the Chhutbhaiyas and the other with Majis and Dadijis. The scales of maintenance in case of Chhutbhaiyas have been laid down with reference to as to whether the Chhutbhaiyas to be supported is one or more than one extending upto 5 Chhutbhaiyas. The percentage of the income of the Thikana has been fixed in each case Separately. Similarly as for Majis and Dadijis the scale has been fixed related to the number of dependents. Thus it is clear to our minds that the question of maintenance of Chhutbhaiyas etc. out of the income of the Thikana was governed in the former Bikaner State not by the personal law of the parties concerned but by a special notification of the Bikaner State which was applicable to all the Jagirdars irrespective of the personal law or laws which governed them. The term 'existing Jagir Law' has been defined in the Act as meaning any Act, Ordinance Regulation, Rule, Order, Resolution, Notification or bye law relating to Jagirs or Jagirdars in force in the whole or any part of the State at the commencement of this Act, including any custom or usage relating to such jagirs and prevailing at the commencement of this Act and the terms and conditions contained in any order or instrument granting or recognising the grant of a jagir. Thus the con-tention raised by the learned counsel for the respondent before us that sec. 27 and 32 of the Act should be deemed to have become invalid and ineffective by the provisions of the Hindu Adoption and Maintenance Act, 1956, is untenable as the matter is governed not by the personal law of the parties but by the Jagir Law which was in force, in the former Bikaner State on the point of maintenance of Chhutbhaiyas etc. by the thikana. We now come to examine the merits of the case. The learned Jagir Commissioner has disposed of the case of the appellants with the following observations - "as regards the maintenance holder Shri Hanuman Singh and widow Surat Kanwar w/o Shri Man Singh, their maintenance cases could not be finalised because according to the conditions laid down in the previous order and as already worked under sec 27 of the Act and as these two maintenance-holders have failed to abide by the conditions their claim for maintenance allowance was previously rejected. The same action was reconsidered and is rejected on the ground that they have failed to leave the Garh of the Thikana Baya. " On analysing the line of reasoning adopted by the learned Jagir Commissioner it will be found that two factors weighed with him, one was that the order regarding maintenance was a conditional one and the other was that as the appel-lants had failed to vacate the Garh they forfeited their right to claim maintenance. We shall examine both these points separately. As regards the first point we may refer to an order issued by the Secretary, Chief & Nobles Department of the former Bikaner State dated 3. 6. 1948. The relevant portion when rendered in English would run as below: - "in these papers through an English note dated 22. 6. 1948 the Ijlas Shriji Sahib Bahadur Dam Iqbal Hu has ordered that considering the discussions that have taken place between the Prime Minister, Thakur of Baya and Thakur Hanuman Singh it is decided that 5% of the Thikana income within the terms of the notification dated 23. 4. 42 be paid as maintenance allowance to Hanuman Singh and Man Singh the son of the deceased brother Hanuman Singh, in supersession of the previous decision of the Mehkma Council whereby a sum of Rs 300/- p. a. was granted to each as maintenance. This maintenance shall be calculated after the survey of the jagir has been completed and the lands should be given so as to ensure that amount of income which would be payable to the Chhutbhaiyas as maintenance. The land shall be given by the Thukur of Baya and Mehkma Mal. " After this follows another paragraph in the order which has given rise to confused interpretation in the case. "chhutbhaiyas who are still living in the house of the Thakur Baya and who were allowed Rs. 400/- each for construction of houses, are, now considering the rise in prices allowed Rs 1000/- each to be paid by the Thakur. This amount shall be deposited immediately and thereafter the Chhutbhaiyas shall be allowed one month*s period for vacating the Thakur's houses and constructing their own residences, Thakur Hanuman Singh should be advised to refrain from creating troubles for the thikana and to seek legal redress wherever necessary. If he would mis-behave or create any difficulties serious notice shall be taken of it. " We have reproduced the order in extenso with a view to arrive at a proper and legal interpretation of its substance. A number of points emerge from this order on which no controversy can possibly arise The first is that prior to this order the Chhutbhaiyas were granted maintenance allowance out of the Thikana income under orders of the Mehkma Council amounting to Rs. 300/- which may be presumed to be p. a. though not clearly specified in the order. The other is that in 1948 it was considered desirable to fix this maintenance allowance in terms of the 1942 notification and to co-relate it to the income of the Thikana. The third is that a decision was taken on the point and 5% of the income was to be fixed for a maintenance in lieu of which land were to be allotted to the Chhutbhaiyas by the Thakur and the Mehkma Mal. The fourth is that the Chhutbhaiyas were required to construct separate residential houses & to vacate the Thikana houses after obtaining Rs. 1,000/-each from the Thikana. The Chhutbhaiyas were also advised to behave properly and to refer their disputes to regular law failing which they were threatened with a serious notice being taken of their delinquency. There is nothing in the entire order that may even suggest remotely that the maintenance was to be paid only when the Thikana houses were vacated and that no maintenance was to be paid if the Chhutbhaiyas failed to vacate the Thikana houses. On the contrary as has been pointed out above there was an unconditional order of the Mehkma Council regarding payment of maintenance at Rs, 300/- p. a. to each Chhutbhaiyas and on reconsideration of the matter this was raised to 5% of the Thikana income in 1948 under orders of the Bikaner State Ruler. The first paragraph of the order is devoted exclusively to the question of maintenance and throughout this portion there is not a hint or suggestion that vacation of the Thikana premises would be the condition precedent to the grant of maintenance allowance. On the contrary, it has been made an entirely independent matter. The second portion of the order deals with the questions of residence and acceptance of the same for construction of an alternative residence. This portion was concluded with the expression of a hope that the Chhutbhaiyas would behave properly and that serious notice would be taken of the shortcomings. But it was no where intended that failure to comply with any of these conditions would make the Chhutbhaiyas ineligible to claim maintenance. As against this it was made clear that if any dispute were to arise they were to be referred to regular law by a Chhutbhaiya, and we would say by analogy this was to be the line of action of the Thakur also. In other words no stipulated consequences of breach of these conditions were included in the order and the question of breaches and their consequences as and when arising were clearly left to be decided by recourse to regular law. Evidently the vacation of premises is a matter to be determined by civil court in the present set up This question is not included within the purview of the Act. The question of maintenance is to be determined with reference to the existing Jagir law and as pointed out above the appellants have a valid case for maintenance under the law. It was also argued before us that as the appellants had not actually received any maintenance during the past they should not be held eligible to the same as decided by the Board in Budh Singh vs. Mehta Champa Singh Case No. 4/bikaner 1950. decided on 23. 3. 57 to which one of us was a party. That case can be easily distinguished from the present one. In that case the question of maintenance was never raised or decided by any competent authority prior to the resumption of the jagir and it was on this basis that it was held that no maintenance could be allowed under the provisions of the Act. In the present case it is clear that the appellants had been adjudged eligible to a maintenance allowance first by the Mehkma Council of the Bikaner state and subsequently by the Ruler of the Bikaner State in 1948. The fact that no payments were actually made would not detract from the value of this decision as otherwise it would amount to placing a premium on deliberate non-payment by the Thikana. In the present case it appears that non-payment was to some extent due to the non-completion of survey proceedings in the thikana. Thus to our minds there is a clear distinction in a case where maintenance allowance has been adjudged to be paid by a competent authority but has not been actually paid and where the question of maintenance allowance was neither raised before nor decided by any competent authority prior to the resumption of the Jagir. The contention raised before us is untenable. The learned Jagir Commissioner has disposed of the claim on a preliminary ground alone and has expressed no views on the merits or the amount. We would therefore, allow this appeal, set aside the order of the Jagir Commissioner and remand the case back to him with the direction that it be heard and determined afresh on merits in the light of the observations made above.;