Sharma, J.

1. The following two questions have been referred to this Full Bench.

1. Whether a decision by the Rajpramukh in the matter of recognition of a successor to a Jagir is liable to be challenged by a civil suit

2. If the answer to the above question be in the negative, whether the remedy of the in-successful litigant lies by a petition to this Court under Art. 226 or the matter is one to which the provisions of Art. 363 of the Constitution would apply

2. These questions arise out of an application under Art. 226 of the Constitution by the petitioner Thakur Bahadursingh challenging the order of the Rajpramukh of Rajasthan (hereinafter to be referred to as the Rajpramukh) dated 16-9-1952 by which the respondent No. 2 Basant Singh was recognised as successor to the late Jagirdar Thakur Gopalsingh of Digwara in Alwar District on the ground that sanction for his adoption had been given by the Rajendra Shasan of the erstwhile Alwar State. It has been alleged in the petition that Thakur Sheodan Singh, the father of Gopalsingh as well as of the petitioner was Jagirdar of -/6/- share in the jagir of Digwara and that on his death his eldest son Gopalsingh succeeded to the Jagir. Th. Gopalsingh had no male issue and his wife had predeceased him. He, therefore, made an application dated 24-2-1945 to the Prime Minister or Alwar for permission to adopt the respondent Basant Singh as his son.

This permission was accorded by the Executive Council of the then Alwar State on 2-5-1946 and an appeal by the petitioner to His Highness the Maharaja of Alwar failed, although Th. Gopalsingh had submitted two applications, one dated 23-5-1946 and the other dated the 14-6-1946 to the effect that he did not wish to take the respondent No. 2 Basantsingh in adoption and so no permission was necessary. Th: Gopalsingh died on 7-7-1946, but despite the death of Th: Gopalsingh and his applications dated 23-5-1946 and 14-6-1946, His Highness the Maharaja of Alwar ignoring the provisions of Jagir Rules of Alwar State, accorded permission for Basantsinghs adoption on 11-10-1946. However, the petitioner filed an application for mutation of his name claiming that according to the Jagir Rules, he was the nearest heir to Th: Gopalsingh and that the respondent No. 2 had no right whatsoever, because he had not been adopted in accordance with Hindu law.

An inquiry was made in the matter and the Mahkama Jagir of Alwar State submitted a report that no ceremony of adoption of respondent No. 2 ever took place. In the meantime, Alwar State was merged into the Matsya Union and the Government of Matsya which was the successor Government of erstwhile Alwar State held that no mutation could be sanctioned in the name of respondent No. 2 as he was not actually adopted and this decision was upheld by the Matsya Mantri Mandal on 7-5-1949. Against this decision of the Matsya Mantri Mandal, a review application was filed by respondent No. 2 and as the present State of Rajasthan had come into being in the meanwhile, the review application was decided by the respondent No. 7, the Rajpramukh on 16-9-1952 by which he set aside the order of Matsya Mantri Mandal Union dated 7-5-1949 and recognised the succession of the respondent No. 2.

It has been submitted that the recognition of the respondent No. 2 by the Rajpramukh was against the provisions of the erstwhile Alwar State Jagir Rules and was patently erroneous. It has, therefore, been prayed that the order of the Rajpramukh dated 16-9-1952 be quashed.

3. No reply was filed to this petition on behalf of the respondents, but the Division Bench which heard the petition thought it proper to give a notice to the Advocate-General as important questions of law were involved as to the jurisdiction of the Rajpramukh.

4. We have heard Mr. D.P. Gupta counsel for the petitioner as well as the Amicus Curiae Mr. D.M. Bhandari who supported the case of the petitioner. We have also heard the Advocate-General as well as Mr. C.L. Agarwal, another Amicus Curiae on behalf of the respondent.

5. The contention of the learned counsel for the petitioner is that the Rajpramukh decided this case in the capacity of a quasi tribunal and therefore, this Court has power to quash his order because it is patently erroneous, It was argued that according to R. 4 of the Alwar Jagir Rules, on the death of a Jagirdar, his eldest son or in the absence of a son his legally adopted son as provided in R. 5, was entitled to succeed. If there were no son or legally adopted son, then the nearest of kin was-entitled to succeed provided he:

(a) was a lineal descendant in the male line of the original grantees;

(b) was a bona fide resident of the Alwar State or undertook to make the Alwar State his permanent home;

(c) has not inherited another Jagir and

(d) was not according to the Dharam Shastras debarred from succession, as for example one who is-

(i) a Patit (fallen from his caste);

(ii) a eunuch,

(iii).......................

It was further argued that under R. 5, a Tikai Jagirdar or a Chhutbhaiyya who had no male issue could adopt an heir with the previous sanction of his Highness Government. It was argued that although sanction had been given, yet no adoption-was actually made in accordance with that sanction. The order of the Rajpramukh does not show that it had been considered whether the respondent No. 2 had been actually adopted and the succession of the respondent No. 2 was recognised only on the ground that permission had been given by the Government of His Highness of Alwar for the adoption.

It was argued that the Rajpramukh of the United State of Rajasthan was by Art. 7(3) of the Covenant of Rajasthan, authorised to resume Jagirs or to recognise succession according to law and custom, to the rights and titles of the Jagirdars. According to the Jagir Rules, the respondent No. 2 could be held to be entitled to the Jagir only if it were proved that the respondent No. 2 had been taken in adoption by the late Jagirdar Gopalsingh. As this law was ignored by the Rajpramukh, the petitioner is entitled to obtain a writ and to have the order or the Rajpramukh set aside by this court under its extraordinary powers under Art. 226 of the Constitution.

6. The Amicus Curiae Mr. D.M. Bhandari not only supported the contention of the learned counsel for the petitioner, but also contended that it was open to the petitioner to bring a civil suit for the. declaration of his title and for possession. It was argued that although Art. 7(3) of the Covenant of Rajasthan laid down that unless other provision is made by an Act of the Legislature of the United State, the right to resume Jagirs or to recognise succession according to law and custom, to the rights and titles of the Jagirdars shall vest exclusively in the Rajpramukh, yet this provision of the Covenant came to an end as soon as the Constitution of India came into force and the State of Rajasthan became one of the territories of India under the Constitution.

It was argued that after the Constitution of India came into force, the Rajpramukh of Rajasthan had no other powers than what were conferred upon him by the Constitution. The Rajpramukh of Rajasthan was not given the exclusive power of deciding the question of succession to Jagirs by any of the provisions of the Constitution. As the order of the Rajpramukh was passed after the Constitution of India came into force, that order had no validity and as the matter is entirely of civil nature, the civil courts have power under S. 9, Civil P.C., to decide the matter in a Civil suit.

7. The learned Advocate-General argued that the Rajpramukh of Rajasthan had, under Art. 7(3) of the Covenant, exclusive power to decide the question of the present succession and that the Covenant did not come to an end on the coming into force of the Constitution of India. It was argued that under Art. 363 of the Constitution neither the Supreme Court nor any other court can have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant etc., which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian State and to which the Government of the Dominion of Indian or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement.

It was argued that the present dispute is a dispute arising out of the provisions of Art. 7(3) of the Covenant of Rajasthan (hereinafter to be referred to as the Covenant) which was entered into before the commencement of the Constitution by the rulers of different units comprising the present Rajasthan and the Government of the Dominion of India was party thereto. It was further argued that by virtue of Art. 361(1) of the Constitution, the President, or the Governor or Rajpramukh shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. It was argued that the Rajpramukh of Rajasthan decided the present dispute in exercise and performance of the powers and duties of his office or at any rate he did so purporting to do it in the exercise and performance of those duties.

It was, therefore argued that no writ, direction or order could be issued against him under Art. 226 of the Constitution. As regards the remedy by way of suit, it was argued that it had been decided very recently by the Supreme Court in the case of - Maharaja Umrao Singh v. Bhagwati Singh, Civil Appeal No. 125 of 1952 (SC) (A), that the Rajpramukh had the exclusive powers to recognise the succession to the Jagir of Indergarh which was in the erstwhile Kotah State now forming part of Rajasthan and it was held that no civil suit could lie in that regard. It was consequently argued that the remedy even by a civil suit is not available to the petitioner. He was supported in his arguments by Mr. C.L. Agarwal who also argued that as Art. 372 of the Constitution saved all the laws in force on the day the Constitution came into force and as the Covenant was in force when the Constitution came into force, Art. 7(3) of the Covenant survived and consequently the Rajpramukh had the exclusive power to determine the question of present succession.

8. The first question which we have got to answer is whether the petitioner could have his remedy by way of a civil suit. There is no doubt that the matter is entirely of civil nature and under S. 9 of the Civil Procedure Code, a civil suit could lie unless cognizance of a civil suit relating to the matter in question was either expressly or impliedly barred. It has not been shown to us that the jurisdiction of civil courts in a matter like the present is expressly barred. On the strength of Art. 7(3) of the Covenant, however, it was argued that the jurisdiction of civil Courts was impliedly barred.

9. The question whether by virtue of Art. 7(8) of the Covenant, the jurisdiction of civil courts was impliedly barred came up before this court in case of - Umrao Singh v. Bhagwati Singh, Civil Appeal No. 5 of 1950 (Raj) (B). In that case one Maharaja Sumer Singhji of Indergarh, District Kotah, Rajasthan died without any male issue and in his place Maharaja Bhagwati Singh was recognised to be an adopted son of the late Maharaja Sumersingh Ji and was consequently recognised by the Maharao of Kotah as a successor of the deceased to the Jagir. A suit was brought in civil courts in the erstwhile Kotah State that the plaintiff Maharaja Umrao Singh was the sole heir of the deceased and consequently, entitled to a declaration to the effect that he was the real successor of Maharaja Sumersingh to the Jagir of Indargarh.

On behalf of the defendant it was pleaded inter alia, that no civil suit could he in the matter and it was decided by this Court by its judgment dated 17-10-1950 that on the allegations in the plaint and by virtue of the provisions of Art. 7(3) of the Covenant such a suit was impliedly barred. An appeal was taken by the defeated plaintiff to the Supreme Court being Civil Appeal No. 125 of 1952 (SC) (A). It was held by their Lordships that the civil suit was barred.

Their Lordships observed as follows:

In para. 3 it was said that the late Maharaja Sumer Singhji himself, from Thikana Chhapol, with the sanction of Maharao Sahib Kotah, was taken as successor to Indergarh, on the death of Maharaja Sher Singh, without a male issue, and that Maharaja Sher Singhji, also in the same manner, on the death of Maharaja Sangram Singhji, dying without a male issue, was taken from Thikana Chhapol as successor to Indergarh. The plaintiffs case thus is clearly founded on the plea that the succession to the Gaddi of Indergarh was determined by the ruler of Kotah in his capacity as sovereign.

It is not even alleged in the plaint that the jagir is hereditary in nature or that the sanction of the Maharao was a mere formality. After the integration of Rajasthan the sovereign right exercised by the Maharao of Kotah in this respect was dealt with by Art. 7(3) of the Covenant entered into between the rulers of the different States of Rajasthan including Koath.

Their Lordships thereafter, reproduced Art. 7(3) of the Covenant which is as follows:

Unless other provision is made by an Act of the Legislature of the United State, the right to resume jagirs or to recognise succession according to law and custom, to the rights and titles of the jagirdars shall vest exclusively in the Rajpramukh.

Thereafter, their Lordships observed as follows:

The Rajpramukh, in exercise of this power, on the 1st of December, 1949 recognised Maharaja Bhagwati Singhji, second son of Maharaja Balbirsinghji of Kh-ato-li and adopted son of the late Maharaja Sumer Singhji of Indergarh, as successor to the late Maharaja Sahib of Indergarh. The words of the Covenant are unambiguous and it is declared therein that no other authority except the Rajpramukh of Rajasthan will be competent to decide the question of succession. That being so, no suit can be maintained in a civil court to direct a sovereign to perform his "sovereign duties" in a particular manner.

The power of recognising an heir to the Gaddi of Indergarh which was once exercised by the Maharao of Kotah and which is now being exercised by the Rajpramukh of Rajasthan, is political in character and is an "incident of sovereignty", and a matter that has to be exclusively settled in exercise of such a power cannot possibly be the subject of adjudication in a civil court.