TMI Blog1977 (8) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... d by orders dated May 19, 1932, the Maharaja of Holkar directed the estate to be placed under the court of wards. On January 6, 1935, Laxmibai filed an application before His Highness Maharaja of Holkar for payment of maintenance as per nemuk. Ultimately, on January 12, 1935, His Highness sanctioned the adoption of Kumar Virendra Singh, who is the assessee in the present case, and on the same day also directed that monthly allowance be paid to Laxmibai at the rate of Rs. 500 per month. By a subsequent order dated April 18, 1944, His Highness further directed that maintenance at the same rate, i.e., Rs. 500 per month, be paid to Shakuntalabai also. By a subsequent order dated June 16, 1948, this allowance was raised to Rs. 600 per month payable to both widows. The question that arose before the Tribunal was as to whether the amount of maintenance which was paid to these two widows was under a legal obligation and, therefore, overriding title and as such did not form part of the assessee's total income, and that is the question referred in this reference. It is not in dispute that the estate of the jagirdar was governed by the Manual for Jagirdars of the Holkar State (hereinafter c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any law, or other provision having the force of law or any custom, is entitled to receive a maintenance allowance out of the income of any Jagir, shall be entitled to receive, out of the compensation payable to the jagirdar, such amount for maintenance annually, as the Jagir Commissioner may fix, after taking into consideration- (i) the amount of maintenance allowance which that person used to receive from the jagir before the date of resumption, (ii) the net income of the jagirdar from the jagir at the time of fixing the said maintenance allowance. (iii) the net amount of compensation payable to the jagirdar, and (iv) such other matters as may be prescribed. Apparently, the main part of the section provides that any maintenance allowance which a person entitled to receive under any law or other provision having the force of law he shall be entitled to receive out of the compensation payable to the jagirdar. And this, therefore, clearly indicates that section 9 maintained what a person was entitled to receive under any law or any order having the force of law. It is not in dispute that the orders passed for grant of maintenance in the case are orders having the force of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jagirdar. This jurisdiction of the Jagir Commissioner about fixing of the amount only is referable to the amount of maintenance which is to be paid out of the compensation payable to the jagirdar under this Act. It is not in dispute that what has been resumed under this Act is the lands in the jagir and the jagirdar was entitled to compensation with regard to what has been resumed. Section 5 of this Act clearly indicates that other properties of the jagirdar were not affected by this Act : "5. Notwithstanding anything contained in the last preceding section- (a) the jagirdar shall continue to remain in possession of land cultivated personally by him. (b) (i) all open enclosures used for agricultural or domestic purposes and in continuous possession (which includes possession of any predecessor-in-interest) for twelve years immediately before the date of resumption, (ii) all open house-sites purchased for valuable consideration, (iii) all private buildings, places of worship, and wells situated in, and trees standing on lands included in such enclosures or house-sites, as are specified in clauses (i) and (ii) above, or land appurtaining to such buildings or places of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two orders and the character of the provisions made by them in such a detailed manner it is difficult to distinguish them from statutes or laws ; in any event they must be treated as rules or regulations having the force of law ...... The right guaranteed to the appellant by an existing law cannot be extinguished by the issue of an executive order. "In fact, learned counsel appearing for the department also did not contest this legal position. But this contention was that by enacting section 9 of the Abolition of Jagirs Act this right came to an end. But, as discussed earlier, section 9 instead of finishing the right in fact maintains it. Consequently, the contention that the right of maintenance of these widows came to an end cannot be accepted. It is, therefore, clear that so far as the liability to pay maintenance under orders of His Highness under section 16 of the Jagir Manual is concerned it has been maintained under section 9 of the Act. But if no orders have been passed by the Commissioner about the amount to be paid out of the compensation the maintenance holder could not get it directly from the Government out of the compensation. But on this basis it could not be held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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