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1964 (3) TMI 117

d R. H. Dhebar, M. C. Setalvad and D. N. Mukherjee for the respondent JUDGMENT The Judgment of the Court was delivered by GAJENDRAGADKAR C. J.-This is a writ petition filed under Art. 32 of the Constitution by which the eight petitioners challenged the validity of section 87B of the Code of Civil Procedure. These petitioners claim that they and respondent No. 2, His Highness Maharaja Kirit Vikram Kishore Deb Varman, are members off a joint Hindu family governed by the Dayabhaga School of Hindu Law. Under a family custom which, it is alleged, has prevailed in this family for centuries, the Raj as well as the Zamindari properties belonging to the family are held by a single individual and the other members of the family are entitled to maintenance according to the status of the family with the right to succession to the Raj as well as the Zamindari properties under the general rule of succession which prevails and which is not inconsistent with the family custom. The head of the family was, by family custom, called the Chief and he was chosen from among the members of the Ruling Deb Barman family and used to be installed on the Gaddi or Throne. The petitioners further alleged that th .....

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That is how the present petition has been filed challening the validity of the said section. The petitioners contend that the said section is ultra vires, because it contravenes Arts. 14 and 19(1)(f) of the Constitution and as such, the condition precedent prescribed by it which requires the previous sanction of the Central Government before filing a suit against the Ruler of an Indian State therein mentioned, is invalid and inoperative. That is the genesis of the present writ petition. At the hearing of this writ petition, Mr. Shukla for the petitioners fairly conceded that the challenge to the validity of s. 87B, C.P.C., on the ground that it contravenes Art. 14 has been repelled by a recent decision of this Court in Mohan Lal Jain v. His Highness Maharaja Shri Sawai Man Singhji([1962] 1 S.C.R. 702). He, however, attempted to argue that some aspects of the problem had not been pressed before the Court when it decided the case of Mohan Lal Jain (1), and so, he wanted us to reconsider that question. We have not allowed Mr. Shukla to raise this contention, because we are satisfied that the decision in Mohan Lal Jain's case concludes the point and it would not be reasonable to re .....

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ension of s. 86(1) and (3) to the cases falling under s. 87B(1) is that the sanction of the Central Government is a condition precedent to the institution of a suit against the Ruler of any former Indian State. It is this requirement which the petitioners have not been able to comply with in respect of the suit which they intend to file against respondent No. 2, because the Central Government has refused to accord sanction to the said intended suit. Now, the legislative background of the provisions contained in s. 86 and s. 87B is well known. Prior to the present Constitution, Part IV of the Code of Civil Procedure contained provisions in respect of suits in specified cases. These cases were divided into three parts. Section 79 to 82 covered cases of suits by or against the Crown or Public Officers in their official capacity. Sections 83 to 87 dealt with suits by aliens and by or against foreign Rulers and Rulers of Indian States; and s. 88 had reference to interpleader suits. After the Constitution came into force, the President made certain adaptations by the Adaptations of Laws Order, 1950. As a result of Art. 372, the protection afforded to Foreign Rulers and Rulers of Indian S .....

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fundamental right guaranteed by Art. 19(1)(f) cannot be said to be unreasonable. The restriction in question is the result of the necessity to treat the agreements entered into between the Central Government and the ex-Rulers of Indian, States as valid and the desirability, of giving effect to the assurances given to them during the course of negotiations between the Indian States and the Central Government prior to the merger of the States with India. We have to take into account the events which occurred with unprecedented swiftness after the 15th August, 1947, and we have to bear in mind the fact that the relevant negotiations carried on by the Central Government were inspired by the sole object of bringing under one Central Government the whole of this country including the former Indian States. Considered in the context of these events, we do not think it would be possible to hold that the specific provision made by s. 87B granting exemption to the Rulers of former Indian States from being sued except with the sanction of the Central Government, is not reasonable and is not in the interests of the general public. It is true that the restriction works a hardship so far as the p .....

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