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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 133 1963. Appeal from the judgment and decree dated November 17, 1960, of the Orissa High Court in First Appeal No. 45 of 1955. M. C. Setalvad, R. K. Garg, M. K. Ramamurthi, D. P. Singh and S. C. Agarwala, for the appellant.

S. V. Gupte, Additional Solicitor-General of India, Gana- pathy Iyer and R. H. Dhebar, for the respondents. March 9, 1964. The judgment of the Court was delivered by GAJENDRAGADKAR, C.J.-The principal point of law, which arises in this appeal is whether the Sanad issued in favour of the appellant, Rajkumar Narsingh Pratap Singh Deo, by his elder brother, the Ruler of Dhenkanal State, on March 1, 1931, is existing law within the meaning of Art. 372 of the Constitution read with cl. 4(b) of Order No. 31 of 1948 issued by the respondent State of Orissa on January 1, 1948. This question arises in this way. The State of Dhenkanal which was an independent State prior to 1947 merged with the Province of Orissa in pursuance of a Merger Agreement entered into between the Ruler of Dhenkanal and the Dominion of India on December 15, 1947. This Agreement came into force as from January 1, 1948. In consequence of this Agreement the entire administration of the State of Dhenkanal was taken over by the State of Orissa pursuant to the authority conferred on it by the Central Government under s. 3(2) of the Extra Foreign Jurisdiction Act, 1947 (No. 47 -of 1947). After the Sanad in question -was issued in favour of the appellant, be was getting a monthly allowance of Rs. 5001- from the Dhenkanal District Treasury on the authority of a permanent Pay Order which had been issued in his favour by the Ruler of Dhenkanal on the basis of the said Sanad. This payment was discontinued by the respondent from 1st of May, 1949 and the several representations made by the appellant to the various authorities of the respondent to reconsider the matter failed. That is why lie filed the present suit on September 26, 1951 in the Court of the subordinate Judge, Dhenkanal, alleging that the act of discontinuing the appellant's pension was illegal, and asking for appropriate reliefs in that behalf. It is from this suit that the present appeal arises.

The appellant's case is that in the family of the appellant, it has been recognised as a customary right of the junior members of the family to receive adequate maintenance consistently with the status of the family. Indeed, the appellant's allegation is that this custom was recognised in Dhenkanal and enforced as customary law in the State. The grants made to the members of the Royal Family for their maintenance consisted of lands and cash allowances. These latter were described as Kharposh allowances and they were charged and paid out of the revenue of the former State of Dhenkanal. It was in accordance with this customary law that the Sanad in question was issued by the Ruler of Dhenkanal in favour of the appellant. By this Sanad, certain lands were granted to the appellant and a cash allowance of Rs. 5001- per month was directed to be paid to him for life. The appellant's grievance is that this ,-rant of Rs. 5001- allowance has been discontinued by the respondent and that, according to the appellant, is an illegal and unconstitutional act. In support of his plea that the respondent was bound to continue the payment of the cash allowance, the appellant urged in his suit that the grant was a law within the meaning of Art. 372 and as such, it had to be continued. He also alleged that after the merger of Dhenkanal with Orissa, his right to receive the grant was recognised by the respondent and acted upon; and that is another reason why he claimed an appropriate relief in, the form of an injunction against the respondent. Several other pleas were also taken by the appellant in support of his claim, but it is not necessary to refer to them for the purpose of the present appeal.

The first and the main point which Mr. Setalvad for the appellant has urged before us is that the Sanad on which the appellant's claim is founded, is law. At the time when the Senad was granted, the Ruler of Dhenkanal was an absolute monarch and in him. vested full sovereignty; as such absolute sovereign, he was endowed with. legislative, judicial and executive powers and authority and whatever order tie passed amounted to law. In the case of an absolute monarch whose' word is literally law, it would be idle, says Mr. Setalvad, to distinguish between binding orders issued by him which are legislative from other binding orders which are executive or administrative. All binding orders issued by such a Ruler are, on the ultimate analysis, law, and the Sanad in question falls under the category of such law.

(1) A.I.R. 1963 S.C. 953.

(2) [1964] 6 S.C.R. 461.

the appellant, to enable him to maintain his dignity as a Rajkumar of the State and to maintain himself, his family, his heirs and descendants in a manner befitting his and their position. 'That is why out of love and affection for him, the grantor made the khanja grant in the shape of a monthly cash allowance of Rs. 500/- for his life time and also an assignment of land measuring 6942-71-5 acres specified in the Schedule attached to the Sanad. The grant of the said land has been made heritable and the grantee has been authorised to enjoy it from generation to generation. The extent of the grant is also clarified by additional clauses which it is unnecessary to mention. Clause 2 of the Sanad imposes the condition of loyalty on the grantee and his heirs; and by cl. 3 the State undertook to bear all costs for reclaiming the land covered by the grant with a view to render it fit for cultivation, Now, it is plain that there is no legislative element in any of the provisions of this grant. It does not contain any command which has to be obeyed by the citizens of the State; it is a gift pure and simple made by the Ruler in recognition of the fact that under the custom of the family and the customary law of the State, he was bound to maintain his junior brother. The grant, therefore, represents purely an executive act on the part of the Ruler intended to discharge his obligations to his ,junior brother under the personal law of the family and the customary law of the State. It would, we think be idle to suggest that such a grant amounts to law. It is true that partly it is based on the requirement of personal and customary law-, but no action taken by the Ruler in discharging his obligations under such personal or customary law can be assimilated to an order issued by him in exercise of his legislative authority. 'Therefore, we have no difficulty in holding that the Sanad in question is a purely executive act and cannot be regarded as law as contended by Mr. Setalvad. It was then faintly argued by Mr. Setalvad that the obli- gation undertaken by the Ruler was recognised by the respon- dent, and so, it could not be cancelled by the respondent merely by an executive act. In our opinion, there is no substance in this argument. If the act by which the grant was made was a purely executive act on the part of the then Ruler of the State of Dhenkanal, we do not see how it can be legitimately urged that the terms of the grant cannot either be modified, or the grant cannot be cancelled altogether by an executive act of the respondent which is the successor of the Ruler. As we have just indicated, the customary law which required the Ruler to provide maintenance for his junior brother, can be said to have been continued by cl. 4(b) of the Order of 1948 and Art. 372 of the Constitution; but to say that the customary law in that behalf is continued is very different from saying that the amount of maintenance fixed by the grant cannot be varied or altered. What the respondent has done is to stop the payment of cash allowance of Rs. 5001- per month an a does not mean alteration of the law. It is common ground that the grant of the land covered by the Sanad has not been disturbed, and so, all that the impugned action of the respondent amounts to is to reduce the total maintenance allowance granted to the appellant by the Ruler in 19 3 1. It is plain that though the customary law requiring provision to be made for the maintenance of the appellant is in force, the respondent has the right to determine what would be adequate and appropriate maintenance, and this part of the right is purely executive in character. It would, we think, be unreasonable to suggest that though the Sanad is not law, the amount granted by the Sanad cannot be modified by an executive act of the respondent, and that the respondent must file a suit for that purpose. All that the customary law requires is the making of a suitable provision for the maintenance of the junior members of the family. But what is adequate provision in that behalf will always be a question of fact which has to be determined in the light of several relevant factors-, the number of persons entitled to receive maintenance, the requirements of the status of the members of the family, the total income derived by the family, and other commitments, may all have to be weighed in deciding the quantum of maintenance which should be awarded to anyone of the junior members. In fact, both the Courts below have agreed in holding that having regard to the relevant facts, the grant of the land made by the Sanad would be adequate and appropriate for the maintenance of the appellant.