Velu Pillai, J.@mdashThe petitioner is a junior member, and the second respondent is the senior most male member of Chirakkal family, which migrated from Malabar to the former Travancore State. The matter in dispute between them, relates to their rival claims to an annual grant of about 3,900 and odd rupees, and the ultimate question is, whether this is a grant solely to the senior member of the family for the time being, or to the family as a whole, in which each member is entitled to a per capita share. The second respondent petitioned the Government of Kerala on the 4th February, 1957, for registering him as the holder of the grant, or Malikhana as it is called. On the 20th March, 1957, some of the junior members of the family including the petitioner, objected to such registry, and claimed that a per capita division of the Malikhana may be made amongst the members of the family. On the 30th April, 1958, Government passed an order, Ext. R1, registering the second respondent as the Malikhana holder. Some of the junior members of the family, but not the petitioner, moved Government for a reconsideration of the above order and as a result, the operation of that order was stayed. Afterwards, on the 5th November, 1958, Government vacated the stay order, and pursuant to Ext. R1 directed payment to be made to the second respondent by order, Ext. P. 2, which is now sought to be quashed in these proceedings. The question was agitated before me as to the nature of the grant. The learned counsel for the petitioner contended that Malikhana grant is a grant to the family and is not a grant to the senior member of the family as pertaining to his "sthanam", and relied on the observations of Sundara Aiyar in his text-book on Malabar Law, Chapter XIX, page 250, that a grant was made to Chirakkal family. He also relied on the definition of the term "Malikhana" in Logan''s Malabar Law, Volume II, Appendix XIII, page cciv. Aitchison''s Treatise, Volume X, pages 14 and 111, contain references to grants to Chiefs and Rulers in Malabar and extracts of an agreement entered into by Chirakkal family with the East India Company. It is not possible to decide this issue on the materials before me and a writ cannot be issued treating the grant in question, as one which enures to the family as a whole. It is for the petitioner to establish her right by a fresh suit properly framed for the purpose.
2. It was then contended by the learned counsel that the authority vested with jurisdiction under the Pension Act, 1871, for registering the right relating to "Pensions and Grants of money or land revenue", Malikhana being such a grant, is the District Collector, or the Deputy Commissioner, or any other officer duly authorised, and that therefore Government had no jurisdiction to pass Ext. R1 or P. 2 order, and on that ground, Ext. P. 2 is liable to be quashed. To this, objection was taken on behalf of the respondents, that the petitioner having submitted to the jurisdiction of Government, cannot now invoke Article 226 of the Constitution. It seems quite clear, by reason of the petition presented to Government on the 20th March 1957, not only by way of opposing the claim of the second respondent, to registry as Malikhana-holder, but also claiming the per capita shares in the grant for herself and other members of the family, that the petitioner had submitted to the jurisdiction of Government, and had even invoked such jurisdiction in her favour. In
It was open to you to raise that point before the tribunal whose order you are challenging. You have sat on the fence, you have taken a chance of the tribunal deciding in your favour, and it is not open to you now to come to us and ask for a writ"
The learned Chief Justice has also relied on the observations in Rex v Williams, Philips, Ex-parte (1914) 1 K.B. 608, that a party may be precluded by his conduct from claiming a writ, whether "the proceedings challenged are void or voidable. If they are void, it is true that no conduct of his will validate them; but such considerations do not affect the principle on which the court acts, in granting or refusing the writ of certiorari". In Jagatjit Cotton Mills v Industrial Tribunal, AIR 1959 Punjab 389, after an examination of the law in England, America, and in this country, Grover J. formulated the following rules:-
1. The Court has always the power and the discretion to grant or refuse to grant the writ and while exercising discretion, it will take into consideration all the relevant factors.
2. The failure to raise objection to defect or lack of jurisdiction of the tribunal before it, is always a material and relevant factor and must be taken into account and it makes no difference whether such a defect is patent or latent.
3. Ordinarily such a conduct would preclude the petitioner from claiming the writ unless a cogent explanation is furnished by stating the necessary facts upon affidavit which should satisfy the Court that the failure to raise the objection relating to jurisdiction was not deliberate, or that the petitioner had no knowledge of facts on which the objection could be based.
4. It would naturally depend on the facts of each case whether such conduct has been established as would disentitle the petitioner to any such relief.
The learned Judge distinguished another case relied on for the petitioner and decided by Chagla C.J. in S.C. Prasher v Vasantsen Dwarkadas, AIR 1956 Bombay 530, as dealing with a writ of prohibition, as to which, different considerations may apply. A similar view has been taken in a number of decisions of this Court. In Venkatasubramania Iyer v Catholic Bank, 1957 KLT 411 = 1957 K.L.J. 380, the petitioner was held to be precluded from challenging the jurisdiction of Government to entertain a revision u/s 16 of Buildings Lease and Rent Control Order, 1950, to which he had submitted. The same conclusion was reached by Vaidialingam J. on an examination of various decided cases, on the subject, in Gopalan v Central Road Traffic Board, Trivandrum, 1958 KLT 410 = 1958 K.L.J. 497. S.M. Rawther v Agricultural Income Tax and Sales-tax Officer, 1958 KLT 958=1958 K.L.J. 783 decided by M.S. Menon J. and Ponkunnam Erattupetta Motor Service v Regional Transport Authority, Kottayam, 1958 KLT 1034=1958 K.L.J. 997 decided by N. Varadaraja Iyengar J. are two other cases of this court in point. It now remains to apply the rules formulated in Jagatjit Cotton Mills v Industrial Tribunal. The court has the power to grant or refuse to grant a writ of certiorari. The failure to raise objection to the jurisdiction of the inferior court is a relevant point to be borne in mind; I see nothing to take this case out of the ordinary rule, which is to refuse a writ in such circumstances. The explanation suggested by counsel for submission to jurisdiction, that the petitioner was not aware that it was a pension or grant within the meaning of the Pensions Act, is not sufficient to attract the exception to the rule as formulated. I therefore dismiss this original petition, but without costs.
