Supreme Court of India
TRIJUGI NARAIN (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERSversusSANKOO (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS
- Citation
- 2019 INSC 1344
- Decided
- 10 December 2019
- Disposal
- Dismissed
- Bench
- INDU MALHOTRA
Holding
The property formed part of the impartible estate of the sovereign ruler, governed by the rule of primogeniture, and therefore could not be treated as coparcenary property.
Summary
The case concerned a perpetual leasehold Nazul plot in Allahabad that had been transferred to the Maharaja of Maihar and later bequeathed by the Maharaja to his second wife’s son. The appellant purchased the plot from the elder son, while the respondents claimed title as members of the joint Hindu family asserting coparcenary rights. The Supreme Court examined whether the property was coparcenary joint‑Hindu‑family property or part of the impartible estate of the sovereign ruler, and whether the rule of primogeniture and the exception under Section 5(ii) of the Hindu Succession Act continued to apply after the merger of the princely state with India. Relying on custom, constitutional provisions and earlier precedents, the Court held that the estate was impartible, governed by primogeniture, and not subject to coparcenary rights. Consequently, the High Court’s finding that the property formed part of the ruler’s impartible estate was affirmed and the appeals were dismissed.
Issues considered
- The nature of the leasehold Nazul plot: whether it is coparcenary joint‑Hindu‑family property or part of an impartible estate of the sovereign ruler of Maihar.
- Whether the rule of primogeniture and the custom of impartibility continue to apply to the estate despite the merger agreement and the Hindu Succession Act, 1956.
- The effect of Section 5(ii) of the Hindu Succession Act on estates that descend to a single heir by covenant or custom of a ruler.
- Whether a sovereign ruler can alienate such property inter‑vivously or by will.
- The applicability of the Constitution of India provisions (Arts. 291, 362, 363(2), 366(22)) to the succession of the ruler’s property.
Legislation cited
- Constitution (26th Amendment) Act, 1971
- Constitution of Indias. Article 291, s. Article 362, s. Article 363(2), s. Article 366(22)
- Hindu Succession Act, 1956s. 14, s. 30, s. 4, s. 5(ii), s. 6, s. 8, s. 9
- Hindu Succession (Amendment) Act, 2005
- Indian Evidence Act, 1872s. 48
- Indian Succession Act, 1925
Subjects
Hindu lawimpartible estaterule of primogeniturecoparcenary propertysuccessionprincely statesmerger agreementsovereign propertySection 5(ii) Hindu Succession Actleasehold Nazul landpersonal law of rulers
Judgment
[2019] 16 S.C.R. 1049 1049
TRIJUGI NARAIN (DEAD) THROUGH LEGAL A
REPRESENTATIVES AND OTHERS
v.
SANKOO (DEAD) THROUGH LEGAL
REPRESENTATIVES AND OTHERS
B
(Civil Appeal Nos. 5740-41 of 2015)
DECEMBER 10, 2019
[INDU MALHOTRA AND SANJIV KHANNA, JJ.]
Hindu Law – Property – Merger agreement signed by
C
sovereign Ruler with the Dominion of India – Consequences with
regard to the nature of the property – Impartible estate or
coparcenary property – The then Maharaja of the State of Maihar
had perpetual lease rights of the property in question, leasehold
Nazul land – ‘BNS’, the ruler who succeeded to the gaddi of the
said State bequeathed the palace of Maihar and privy purse to D
his elder son of his first wife and the property in question to his
second wife for her son – Aforesaid elder son sold the property in
question to the appellant – Suits were filed for permanent injunction
claiming right in the property by adverse possession and also for
declaration & injunction against the appellant – Dismissed –
E
Impugned judgment reversed the findings of the courts below and
held that the property was part of the impartible estate governed
by the rule of primogeniture– Held: An estate even if inherited and
ancestral, partition of which is prohibited by custom and succession
whereto is generally by the rule of primogeniture is referred to as
an ‘impartible estate’ – As per the custom relating to impartible F
estates and the rule of primogeniture, the Raja or Ruler of a
princely state would not hold the estate as the karta or coparcener,
but as the absolute owner and the estate would be impartible –
On the death of the Ruler, the succession to the rulership, and the
impartible estate, was not under the Mitakshara law of
G
survivorship but by the rule of primogeniture – In the present case,
inheritance of the property post the death of the then Maharaja
of the State of Maihar by the new Ruler including ‘BNS’ by
application of the rule of primogeniture indicates that it was treated
as a State or sovereign property– Property was a part of the
impartible property i.e., though ancestral was not a part of the H
1049
1050 SUPREME COURT REPORTS [2019] 16 S.C.R.
A coparcenary property, but was a part of the estate of the sovereign
Ruler, ‘BNS’ – Final findings of the High Court, affirmed– Hindu
Succession Act, 1956– ss. 4, 5(ii), 6, 8, 9, 14 & 30– Constitution
of India – Arts.291, 362, 363(2), 366(22) – Constitution (26 th
Amendment) Act, 1971 – Evidence Act,1872 – s.48 – Doctrine of
‘cessante ratione legis, cessat ipsa lex’ – Indian Succession Act,
B
1925 – Hindu Succession (Amendment) Act, 2005.
Hindu Law – Mitakshara Hindu Law – Difference between
the Joint Hindu family and Coparcenary – Discussed.
Hindu Law – Property – Impartible estate – Succession to –
C Rule of primogeniture – Held: Though the right to survivorship is
not inconsistent with the custom of impartible estate, albeit it is
different from the ordinary rule of succession under the
Mitakshara Hindu law where all sons of the father are entitled to
equal share in his estate, for the law of succession when the rule
of primogeniture applies, is that the first-born son succeeds to the
D
entire estate to the exclusion of the other sons.
Hindu Law – Property – Impartible estate and the rule of
primogeniture – Origin of – Discussed.
Hindu Law – Succession to impartible estate – Rights of
E coparceners, if any – Held: An impartible estate is clothed with
the incidents of self-acquired and separate property – Such estate
even if inherited and ancestral, is not held by the coparcenary as
a part of the coparcenary property, as the coparceners or members
of the joint Hindu family do not have the right to partition or right
to restrain alienation – Thus, any property belonging to the Ruler
F
as a sovereign, which would devolve on succession by survivorship
by application of the rule of the primogeniture, would not bear
an incidence of a coparcenary property.
Hindu Succession Act, 1956 – ss. 4, 5(ii) – Continuation of
the custom of impartibility and the rule of primogeniture post the
G
covenants and merger – Held: s.5(ii) is an exception to s.4 and
protects application of terms of any covenant or agreement entered
into by the Ruler of any Indian State with the Government of India
or the terms of any enactment passed before commencement of the
Succession Act as per which the estate would descend to a single
H heir – Further, ratio of the Constitution Bench in Vir Rajendra
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1051
(DEAD) THR. LEGAL REP.
Singh is a binding precedent for it recognizes the personal law of A
succession of the Rulers and therefore, the rule/custom of
primogeniture applicable to impartible estates belonging to
erstwhile Rulers of the princely states – This custom/rule was not
abrogated with the loss of sovereignty that the Rulers had forgone
with the signing of the merger agreement – Law of the land is
B
pervious to the rule of primogeniture – Constitution of India –
Arts.291, 366(22).
Constitution of India – Arts. 362, 291 – Lease rights of the
property in question transferred to the then Maharaja of the State
of Maihar – ‘BNS’, the ruler who succeeded to the gaddi of the
C
State of Maihar bequeathed the palace of Maihar and privy purse
in 1966 to his elder son of his first wife and rest of the properties
including the property in question to his second wife for her son
– Elder son sold the property in question to the appellant in 1968
– Impugned judgment inter alia held that the property was part of
the impartible estate governed by the rule of primogeniture – D
Appellants contended that the property being leasehold Nazul plot
owned by the superior lessor, i.e. State of U.P., could not be treated
as a sovereign property in the hands of ‘BNS’ but, should be treated
as coparcenary property belonging to the joint Hindu family –
Held: Rejected – Succession on death of ‘BNS’ had opened on
E
13.10.68, which is before Art.362 relating to the rights and
privileges of the Indian Rulers was repealed – ‘BNS’ took over as
a Ruler of the State of Maihar in the pre-independence era when
the Rulers, though subject to British supremacy, were treated as
absolute sovereign Rulers within their own territories – There was
no distinction between public and private property of the Rulers F
since the distinction would be counter to the basic attribute of
sovereignty.
Dismissing the appeals, the Court
HELD: 1.1 Under the Mitakshara Hindu Law, any property
inherited by a male Hindu from his father, father’s father or G
father’s father’s father is ancestral property. The male
descendant who inherits the property in the above manner did
not inherit the property absolutely as a separate property, but
as coparcenary property. Coparcenary consists of only those
persons who acquire by birth an interest in the coparcenary H
1052 SUPREME COURT REPORTS [2019] 16 S.C.R.
A property. Succession in coparcenary property is by survivorship.
No coparcener can dispose of his undivided coparcenary interest
by way of gift except with the consent of the other coparceners.
There are restrictions on alienation of the coparcenary property,
which would be legally valid only when made by the whole body
of coparceners where they are adults, by manager/Karta, or
B
father subject to limits/conditions, and by a sole surviving
coparcener in some circumstances (Mulla Hindu Law 22 nd
Edition, 2016 at page 397, § 253 – ‘Who may alienate coparcenary
property’). Outside the limits of coparcenary, there is a fringe
of persons, both male and female, who constitute the undivided
C or joint family which consists of lineal descendants from a former
ancestor and includes their wives and unmarried daughters.
Joint Hindu family is, thus, a larger body consisting of group of
persons who are united by the tie of sapindaship arising by birth,
marriage or adoption. An individual who is a member of the joint
Hindu family can hold separate or individual property and in
D
addition, if he is a coparcener, have an interest in the
coparcenary property of the joint Hindu family. However, with
the enforcement of the Succession Act with effect from 17th June
1956, any property inherited by an heir vide intestate succession
in the event of death occurring after 17 th June 1956 is absolute
E or individual property and not ancestral property. [Paras 8-10]
[1062-A-E]
Surjit Lal Chhabda v. Commissioner of Income Tax,
Bombay (1976) 3 SCC 142 : [1976] 2 SCR 164 –
relied on.
F
Mulla Hindu Law 22nd Edition, 2016 at page 397, 253-
‘Who may alienate coparcenary property’ – referred
to.
1.2 An estate even if inherited and ancestral, partition of
which is prohibited by custom and succession whereto is
G
generally by the rule of primogeniture is referred to as an
‘impartible estate’. An impartible estate is essentially a creature
of custom, though could also owe its origin to the term of a grant,
a statute or a family settlement. By virtue of the rule of
primogeniture, the eldest or the first son succeeds to the
H property of the last holder to the exclusion of his younger
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1053
(DEAD) THR. LEGAL REP.
brothers. Succession can also be under the rule of lineal male A
primogeniture which means that the descendant would be a
continual descendant of the eldest male member of the eldest
branch. [Para 11] [1062-G; 1063-A-B]
Thakore Shri Vinayasinhji (Dead) By LRs. v. Kumar
Shri Natwarsinhji and Others (1988) Supp. SCC B
133 : [1988] SCR 1110 – relied on.
Shiba Prasad Singh v. Rani Prayag Kumari Debi and
Others AIR 1932 PC 216 – referred to.
1.3 An impartible estate is clothed with the incidents of
self-acquired and separate property. Impartible estate even if C
inherited and ancestral, is not held by the coparcenary as a part
of the coparcenary property, as the coparceners or members of
the joint Hindu family do not have the right to partition or right
to restrain alienation. Though the right to survivorship is not
inconsistent with the custom of impartible estate, albeit it is D
different from the ordinary rule of succession under the
Mitakshara Hindu law where all sons of the father are entitled
to equal share in his estate, for the law of succession when the
rule of primogeniture applies, is that the first-born son succeeds
to the entire estate to the exclusion of the other sons. Any
property belonging to the Ruler as a sovereign, which would E
devolve on succession by survivorship by application of the rule
of the primogeniture, would not bear an incidence of a
coparcenary property. The property belonged to one person, that
is, the sovereign Ruler as the very concept of sovereignty
implies absolute authority, power and ownership that cannot be F
subjected to legal action of partition or injunction by another
person. Consequently, estates/properties of the sovereign Ruler
were impartible even though the property was ancestral. The
male members who had the right of survivorship, could not claim
the right to partition or the right to restrain alienation by the
sovereign Ruler as they had no enforceable right that could be G
legally remedied. In short, the right or interest of sons or other
members of the coparcenary was inconsistent with sovereignty
as a sovereign Ruler could not be subjected to the municipal
law and the municipal courts. Thus, as per the custom relating
to impartible estates and the rule of primogeniture, the Raja or H
1054 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Ruler of a princely state would not hold the estate as the karta
or coparcener, but as the absolute owner and the estate would
be impartible. The son(s) would not acquire any interest in the
impartible estate by birth nor could they seek partition or
restrain alienation. On the death of the Ruler, the succession
to the rulership, as also the impartible estate, was not under the
B
Mitakshara law of survivorship but governed by the rule of
primogeniture. There was, however, moral liability for providing
maintenance to others, be it the younger brothers or family
members, which later on, by way of custom, virtually became an
obligation. [Paras 13, 16] [1064-C-D; 1065-G; 1066-A-C-F-H]
C
Madhav Rao Jivaji Rao Scindia v. Union of India and
Another (1971) 1 SCC 85 : [1971] 3 SCR 9 ; Pratap
Singh v. Sarojini Devi and Others (1994) Supp 1 SCC
734 : [1993] 1 Suppl. SCR 607 – relied on.
Baboo Gunesh Dutt Singh v. Maharaja Moheshur
D
Singh (1854-7) 6 MIA 164 : 1 Sar PCJ 521 – referred
to.
Lieutenant Colonel James Tod, ‘Annals and Antiquities
of Rajasthan’, Pg. 307 – referred to.
E 1.3 Section 5(ii), in its present form, was recommended by
the Joint Committee in pursuance of its opinion, which means
that the Rulers had impartible estates and succession to these
was regulated by special covenants or agreements. Thus, after
discussion, the (iv) exception in the Bill was deleted and was
F not enacted as law. The effect thereof was that the custom of
primogeniture and impartible estate in the case of zamindars or
those holding jagirs would not be applicable post enforcement
of the Succession Act with effect from 17th June 1956. Preamble
of the Succession Act states that it is an Act to amend and codify
the law relating to intestate succession amongst Hindus and as
G originally enacted did not profess to amend and codify the law
relating to the nature of all the properties held by Hindus, with
the exception of Section 14 of the Succession Act. Section 4 of
the Succession Act provides that the text, rule, interpretation,
custom or usage of Hindu law will cease to have effect with
H respect to any matter for which provision is made in the Act and
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1055
(DEAD) THR. LEGAL REP.
further any other law in force, which is inconsistent with the A
provisions of the Act, will cease to apply. Section 6 of the
Succession Act deals with devolution of interest of a Hindu male
(and daughter of a coparcener after amendment vide the Hindu
Succession (Amendment) Act 2005) having interest in a
Mitakshara coparcenary as distinct from a joint Hindu family. B
Sections 8 and 9 of the Succession Act relating to the general
rules of succession in case of males and females, respectively,
do not apply to a living person but apply on the succession
opening on the death. Similarly, Section 30 of the Succession Act
which deals with testamentary succession and empowers a Hindu
to dispose of any property by will in accordance with the C
provisions of the Indian Succession Act, 1925, does not ipso facto
apply to a living person and applies in the event of the holder’s
death. Section 5(ii) is an exception to Section 4 and protects
application of terms of any covenant or agreement entered into
by the Ruler of any Indian State with the Government of India D
or the terms of any enactment passed before commencement of
the Succession Act as per which the estate would descend to a
single heir. The provisions of the Succession Act, with the
possible exception of Section 14 and some amendments vide the
Hindu Succession (Amendment) Act 2005, do not apply unless
E
the succession opens and, therefore, no legal rights of a living
person would get affected. The ratio of the Constitution Bench
in Vir Rajendra Singh is a binding precedent for it recognizes
the personal law of succession of the Rulers and therefore, the
rule/custom of primogeniture applicable to impartible estates
belonging to erstwhile Rulers of the princely states. This F
custom/rule was not abrogated with the loss of sovereignty that
the Rulers had forgone with the signing of the merger
agreement. Relying on the Constitution, and sub-section (ii) to
Section 5 of the Succession Act, this Court has, time and again,
held that the law of the land is pervious to the rule of G
primogeniture. [Paras 33, 35, 38 and 39] [1077-E-F; 1079-H;
1080-A-E; 1082-G-H; 1083-C]
Kunwar Shri Vir Rajendra Singh v. The Union of India
and Others (1969) 3 SCC 150 : [1970] 2 SCR 631 –
followed. H
1056 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Talat Fatima Hasan Through Her Constituted Attorney
Sh. Syed Mehdi Husain v. Nawab Syed Murtaza Ali
Khan (D) By LRs. And Others 2019 (10) SCALE 212
– referred to.
1.6 It may be pertinent to state here that the succession
B on death of ‘BNS’ had opened on 13 th October 1968, which is
before Article 362 relating to the rights and privileges of the
Indian Rulers was repealed by the Constitution (26 th
Amendment) Act, 1971. Article 362, before it was repealed,
stated that in exercise of the power of Parliament or of the
Legislature of a State to make laws or in the exercise of the
C executive power of the Union or a State, due regard shall be had
to the guarantee or the assurance given under any such covenant
or agreement referred to in Article 291 with respect to the
personal rights, privileges or dignities of the Ruler of an Indian
State. ‘BNS’ had taken over as a Ruler of the State of Maihar in
D the pre-independence era when the Rulers, though subject to
British supremacy, were treated as absolute sovereign Rulers
within their own territories. There was no distinction between
public and private property of the Rulers since the distinction
would be counter to the basic attribute of sovereignty. Further,
leasehold properties situated outside the princely states have
E been held to be State or sovereign property. Therefore, the
contention of the appellants that the property being leasehold
Nazul land situated outside the princely state was personal
property must be rejected in the absence of any other evidence
or material to rebut the presumption that the property was a part
F of the impartible estate belonging to the sovereign Ruler. On
the other hand, inheritance of the property post the death of ‘RS’
by the new Ruler including ‘BNS’ by application of the rule of
primogeniture to the exclusion of others son(s) would indicate
that it was treated as a State or sovereign property. [Paras 40-
42] [1083-F-G; 1084-B-G; 1085-A]
G
Draupadi Devi and Others v. Union of India and
Others, (2004) 11 SCC 425 : [2004] 4 Suppl. SCR
223 – relied on.
1.7 The property was a part of the impartible property i.e.,
H the property though ancestral was not a part of the coparcenary
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1057
(DEAD) THR. LEGAL REP.
property, but was a part of the estate of the sovereign Ruler, A
‘BNS’. Further, he could transfer the property inter-vivos or
make a bequest by way of a will. The contention that the
property was a separate or personal property and, therefore, not
a part of the impartible property has not been established and
has not been proved by the appellants by leading evidence and
B
material to dispel the presumption. The final findings of the High
Court are affirmed. There would be no order as to costs. [Paras
43-44] [1085-B-D]
Revathinnal Balagopala Varma v. Shri Padmanabha
Dasa Bala Rama Varma (since deceased) and Others
(1993) Supp 1 SCC 233 : [1991] 3 Suppl. SCR 30 – C
relied on.
Venkata Surya Mahipati Rama Krishna Rao Bahadur
v. Court of Wards and Others (1899) LR 26 Ind App
83 ; Sri Rajah Velugoti Kumara Krishna Yachendra
Varu and Others v. Sri Rajah Velugoti Sarvagna D
Kumara Krishna Yachendra Varu and Others (1969)
3 SCC 281; Bhaiya Ramanuj Pratap Deo v. Lalu
Maheshanuj Pratap Deo and Others (1981) 4 SCC
613 : [1982] SCR 417 ; D.S. Meramwala Bhayawala
v. Bai Shri Amarba Jethsurbhai (1968) 9 GLR 609 ;
Mirza Raja Pushpavathi Vijayaram Gajapathi Raj E
Manne Sultan Bahadur etc. v. Sri Pushavathi
Visweswar Gajapathiraj Rajkumar of Vizianagaram
and Others AIR 1964 SC 118 : [1964] SCR 403 ; N.
Padmamma and Others v. S. Ramakrishna Reddy and
Others (2008) 15 SCC 517 : [2008] 9 SCR 535 ; N.
F
Padmamma and Others v. S. Ramakrishna Reddy and
Others (2015) 1 SCC 417 : [2014] 10 SCR 641 ; Tikka
Shatrujit Singh & Others v. Brig Sukhjit Singh &
Another ILR 2011 (1) Del 704 – referred to.
Advocate General of Bombay v. Amerchund 12 ER 340,
345 : (1830) 1 Knapp 316, 329-30 – referred to. G
Case Law Reference
[1976] 2 SCR 164 relied on Para 8
AIR (1932) PC 216 referred to Para 11
[1988] SCR 1110 relied on Para 12 H
1058 SUPREME COURT REPORTS [2019] 16 S.C.R.
A [1971] 3 SCR 9 relied on Para 14
1 Sar PCJ 521 referred to Para 14
[1993] 1 Suppl. SCR 607 relied on Para 15
(1899) LR 26 Ind App 83 referred to Para 17
B (1969) 3 SCC 281 referred to Para 17
[1982] SCR 417 referred to Para 17
(1830) 1 Knapp 316,329-30 referred to Para 18
(1968) 9 GLR 609 referred to Para 19
C
[1991] 3 Suppl. SCR 30 relied on Para 20
[1964] SCR 403 referred to Para 31
[2008] 9 SCR 535 referred to Para 33
[2014] 10 SCR 641 referred to Para 33
D
ILR (2011) 1 Del 704 referred to Para 34
[1970] 2 SCR 631 followed Para 38
(2019) 10 SCALE 212 referred to Para 39
[2004] 4 Suppl. SCR 223 relied on Para 42
E
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5740-
5741 of 2015.
From the Judgment and Order dated 12.09.2008 of the High
Court of Judicature at Allahabad in Second Appeal Nos. 1930 and 2017
F of 1983
S.R. Singh, Sr. Adv., Krishna Kumar Yadav, Ankur Yadav,
Ms. Sunita Pandit, Abhisth Kumar, Advs. for the Appellants.
Dinesh Dwivedi, Sr. Adv., Ms. Preetika Dwivedi, Abhishek
Chaudhary, Krishnam Mishra, Yasharth Kant, Nishant Singh, Advs. for
G the Respondents.
The Judgment of the Court was delivered by
SANJIV KHANNA, J.
1. These civil appeals arise out of common judgment and decree
H dated 12th September 2008 passed by the High Court of Judicature at
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1059
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
Allahabad in Second Appeal No. 1930 of 1983 {Chandra Nath Kala A
(D) through LRs. v. Trijugi Narain (D) through LRs. and Others}
and Second Appeal No. 2017 of 1983 {Sankoo and Another v. Trijugi
Narain (D) through LRs and Others}.
2. The issue raised in the present appeals relates to the nature
of the property, that is, whether the perpetual leasehold rights in plot B
No. 16 (Old Plot No. 9), Chaukhandi Kydganj, Allahabad – Nazul Plot
(‘the property’ for short) was coparcenary joint Hindu family property
or being a part of impartible estate of the State of Maihar, was clothed
with the incidence of self-acquired and separate property.
3. In order to decide the controversy, we would record the facts C
in brief.
(a) One Bachchu Lonia had acquired the property by means
of perpetual lease deed dated 12 th September 1873
executed by the Government. After the death of
Bachchu Lonia, his son Ram Bharose by means of a D
registered sale deed dated 12 th August 1896 had
transferred the perpetual lease rights to Raghubir Singh,
the then Maharaja of the State of Maihar.
(b) Subsequently, Brij Nath Singh had succeeded to the
throne/gaddi of the State of Maihar. Brij Nath Singh E
vide registered will dated 11 th February 1966 had
bequeathed the palace of Maihar and privy purse to
Govind Singh, elder son of his first wife Surendra Kumari
and rest of the properties including the property to his
second wife Rani Tej Kumari for her son after making
provisions for her maintenance during her lifetime. Brij F
Nath Singh had died on 13th October 1968.
(c) Notwithstanding this will, Govind Singh, elder son of Brij
Nath Singh from his first wife, as peshwa and karta of
the joint Hindu family, had sold the property vide
registered sale deed dated 18th November 1968 to Trijugi G
Narain Dubey and Surendra Nath Prayagwal.
(d) On 20 th November 1968, Chandra Nath Kala and
Sankoo had instituted Original Suit No. 194 of 1968 for
permanent injunction against Trijugi Narain and Surendra
Nath claiming right in the property by adverse possession H
1060 SUPREME COURT REPORTS [2019] 16 S.C.R.
A for last thirty years. Later on, they had filed an
application for amendment of the plaint as Vimal Kumar
Singh, power of attorney holder of Rani Tej Kumari, had
executed sale deed dated 6th June 1969 of the property
in favour of Chandra Nath Kala, which application for
amendment claiming title based on the sale deed was
B
allowed by the trial court. However, this order allowing
the amendment was set aside by the High Court vide
order dated 10th December 1971.
(e) Chandra Nath Kala had then on 7 th March 1972
instituted Original Suit No. 64 of 1972 for declaration
C
and injunction against Trijugi Narain and Surendra Nath,
impleading Sankoo as the third defendant predicating his
right on the sale deed dated 6th June 1969 executed in
his favour by Rani Tej Kumari. Sankoo admitted the
claim of Chandra Nath Kala, while Trijugi Narain and
D Surendra Nath had filed written statement, inter alia,
stating that Brij Nath Singh had no right to execute the
will in favour of Rani Tej Kumari inasmuch as the
property was coparcenary property of the joint Hindu
family. Further, Govind Singh being the karta of the
family, had validly executed the sale deed dated 18th
E
November 1968 in favour of Trijugi Narain and Surendra
Nath.
4. The trial court dismissed the two suits by separate judgments,
both dated 25th March 1983, deciding several issues reference to which
is not required in view of the limited challenge raised by the appellants,
F
albeit it was held that Brij Nath Singh could not have by a will
bequeathed the property that belonged to the joint Hindu family and,
therefore, the sale deed dated 6th June 1969 executed by Rani Tej
Kumari was void as she had no title. Further, the transfer by Govind
Singh as the karta of the joint Hindu family in favour of Trijugi Narain
G and Surendra Nath was for benefit of the estate and absolutely legal.
Suit No. 194 of 1968 was dismissed on the ground that Chandra Nath
Kala and Sankoo had failed to prove acquisition of any right by adverse
possession.
5. Civil Appeal No. 476 of 1983 filed against the judgment and
H decree in Suit No. 194 of 1968 was dismissed by the Additional District
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1061
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
Judge, Allahabad by judgment dated 25th August 1983. By a separate A
judgment of the same date, Civil Appeal No. 517 of 1983 preferred
against the judgment and decree in Suit No. 64 of 1972 was dismissed,
inter alia, recording that Maihar State had ceased to exist in the year
1948 and, therefore, the rule of primogeniture governing impartible
estates had ceased to apply. Consequently, Govind Singh’s legal right
B
to the property inherited from his father could not have been taken
away by Brij Nath Singh by executing a will giving only the palace and
privy purse to Govind Singh and rest of the properties to Rani Tej
Kumari.
6. The High Court, by the impugned common judgment dated 12th C
September 2008, in the two connected appeals, has reversed the findings
of the trial court and the appellate court, inter alia, holding that the
property was a part of the impartible estate governed by the rule of
primogeniture. Accordingly, no member of the joint Hindu family
including Govind Singh had a right in the property by birth. Brij Nath
Singh was fully entitled to bequeath the property by will, which he had D
done vide will dated 11th February 1966 in favour of Rani Tej Kumari.
7. We would like to divide the question raised, though
interconnected, into two parts. First, we are required to examine the
customary law relating to impartibility of an estate and succession under
E
the rule of primogeniture, and whether it was applicable to the property.
The second aspect relates to the legal effect of the lapse of the
sovereign paramountcy with the signing of the covenant and merger
agreement by Brij Nath Singh with the Dominion of India and the
enactment of the Hindu Succession Act, 1956 (‘Succession Act’ for
short). In other words, whether the impartible properties of the former F
Ruler post the merger agreement or the enactment of the Succession
Act had ceased to continue as impartible estate and were converted
into coparcenary property of the joint Hindu family. While deciding the
question, we would also examine the contention of the appellants that
the perpetual leasehold rights being Nazul land were held as personal G
property of the Ruler and were not part of the sovereign or state
properties of Raghubir Singh and Brij Nath Singh.
8. In order to decide the question, we must first notice the
difference between the joint Hindu family and coparcenary.
Coparcenary, as observed in Surjit Lal Chhabda v. Commissioner of H
1062 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Income Tax, Bombay1, is a narrower body than the joint Hindu family.
Under the Mitakshara Hindu Law, any property inherited by a male
Hindu from his father, father’s father or father’s father’s father is
ancestral property. The male descendant who inherits the property in
the above manner did not inherit the property absolutely as a separate
property, but as coparcenary property. Coparcenary consists of only
B
those persons who acquire by birth an interest in the coparcenary
property. Succession in coparcenary property is by survivorship. No
coparcener can dispose of his undivided coparcenary interest by way
of gift except with the consent of the other coparceners. There are
restrictions on alienation of the coparcenary property, which would be
C legally valid only when made by the whole body of coparceners where
they are adults, by manager/Karta, or father subject to limits/conditions,
and by a sole surviving coparcener in some circumstances (see Mulla
Hindu Law 22nd Edition, 2016 at page 397, § 253 – ‘Who may alienate
coparcenary property’).
D 9. Outside the limits of coparcenary, there is a fringe of persons,
both male and female, who constitute the undivided or joint family which
consists of lineal descendants from a former ancestor and includes their
wives and unmarried daughters. Joint Hindu family is, thus, a larger
body consisting of group of persons who are united by the tie of
sapindaship arising by birth, marriage or adoption. An individual who
E is a member of the joint Hindu family can hold separate or individual
property and in addition, if he is a coparcener, have an interest in the
coparcenary property of the joint Hindu family.
10. However, with the enforcement of the Succession Act with
effect from 17th June 1956, any property inherited by an heir vide
F intestate succession in the event of death occurring after 17 th June 1956
is absolute or individual property and not ancestral property. In the
present case, we are not concerned with the concept of deemed partition
of existing coparcenary property on death of a coparcener, execution
of a will by coparcener of his undivided interest vide Section 30 of the
G Succession Act or the amendments made in the Succession Act vide
Act No. 39 of 2005 applicable with effect from 9th September 2005.
11. An estate even if inherited and ancestral, partition of which
is prohibited by custom and succession whereto is generally by the rule
1
H (1976) 3 SCC 142
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1063
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
of primogeniture is referred to as an ‘impartible estate’. An impartible A
estate is essentially a creature of custom, though could also owe its
origin to the term of a grant, a statute or a family settlement. By virtue
of the rule of primogeniture, the eldest or the first son succeeds to the
property of the last holder to the exclusion of his younger brothers.
Succession can also be under the rule of lineal male primogeniture
B
which means that the descendant would be a continual descendant of
the eldest male member of the eldest branch. The distinction between
the impartible estate, to which the rule of primogeniture applies, and
coparcenary property has been explained in Shiba Prasad Singh v.
Rani Prayag Kumari Debi and Others2 in the following words:
“Impartibility is essentially a creature of custom. In the case of C
ordinary joint family property, the members of the family have:
(1) the right of partition; (2) the right to restrain alienations by
the head of the family except for necessity; (3) the right of
maintenance; and (4) the right of survivorship. The first of these
rights cannot exist in the case of an impartible estate, though D
ancestral, from the very nature of the estate. The second is
incompatible with the custom of impartibility as laid down in
Sartaj Kuari’s case and Rama Krishnan vs. Venkata Kumara,
and so also the third as held in Gangadhara vs. Rajah of
Pittapur. To this extent the general law of the Mitakshara has
been superseded by custom, and the impartible estate, though E
ancestral, is clothed with the incidents of self-acquired and
separate property. But the right of survivorship is not inconsistent
with the custom of impartibility. This right therefore still remains,
and this is what was held in Baijnath’s case. To this extent the
estate still retains its character of joint family property, and its F
devolution is governed by the general Mitakshara law applicable
to such property. Though the other rights which a coparcener
acquires by birth in joint family property no longer exist, the
birthright of the senior member to take by survivorship still
remains. Nor is this right a mere spes successionis similar to
that of a reversioner succeeding on the death of a Hindu widow G
to her husband’s estate.”
12. The aforesaid passage in Shiba Prasad Singh (supra) has
been quoted with approval in a number of judgments of this Court,
2
AIR 1932 PC 216 H
1064 SUPREME COURT REPORTS [2019] 16 S.C.R.
A including Thakore Shri Vinayasinhji (Dead) By LRs. v. Kumar Shri
Natwarsinhji and Others3, wherein it has been observed as under:
“The impartible estate, though ancestral, is clothed with the
incidents of self-acquired and separate property, except as
regards the right of survivorship which is not inconsistent with
B the custom of impartibility…”
13. It is, therefore, well established that an impartible estate is
clothed with the incidents of self-acquired and separate property.
Impartible estate even if inherited and ancestral, is not held by the
coparcenary as a part of the coparcenary property, as the coparceners
C or members of the joint Hindu family do not have the right to partition
or right to restrain alienation. Though the right to survivorship is not
inconsistent with the custom of impartible estate, albeit it is different
from the ordinary rule of succession under the Mitakshara Hindu law
where all sons of the father are entitled to equal share in his estate,
for the law of succession when the rule of primogeniture applies, is
D that the first-born son succeeds to the entire estate to the exclusion of
the other sons.
14. As observed above, impartibility of an estate and
primogeniture can have its origin in four forms, including custom. There
are judicial precedents acknowledging and accepting the custom of
E impartible estate and that the rule of primogeniture was a general rule
of succession in all the princely states. We must take judicial notice of
this custom as applicable to princely states vide Section 48 of the
Evidence Act,1872. Lieutenant Colonel James Tod, in his work titled
‘Annals and Antiquities of Rajasthan’4, at page 307 states:
F “...The law of primogeniture prevails in all Rajpoot sovereignties;
the rare instance in which it has been set aside, are only
exceptions to the rule.”
G.K. Mitter, J. in his judgment in Madhav Rao Jivaji Rao
Scindia v. Union of India and Another5 had observed:
G
“It would appear that invariably the rule of lineal male
primogeniture coupled with the custom of adopting a son prevailed
3
(1988) Supp. SCC 133
4
Oxford University Press, 1920. Reprinted in 1978 by M.N. Publishers, New Delhi
5
H (1971) 1 SCC 85
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1065
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
in the case of Hindu Rulers who composed of the bulk of the A
body.”
In Baboo Gunesh Dutt Singh v. Maharaja Moheshur Singh6,
it was stated as follows:
“We apprehend that the principle upon which we are about to
proceed in this case admits of no doubt or question whatever. B
By the general law prevailing in this District, and indeed generally
under the Hindoo law, estates are divisible amongst the sons,
when there are more than one son; they do not descend to the
eldest son, but are divisible amongst all. With respect to a Raj
as a Principality, the general rule is otherwise, and must be so. C
It is a Sovereignty, a Principality, a subordinate Sovereignty and
Principality no doubt, but still a limited Sovereignty and
Principality, which, in its very nature excludes the idea of division
in the sense in which that term is used in the present case.”
15. In Pratap Singh v. Sarojini Devi and Others7 reference D
was made to the decision in Baboo Ganesh Dutt Singh (supra) and
Mitter, J.’s opinion in Madhav Rao Jivaji Rao Scindia (supra) to hold
that:
“65. Though impartibility and primogeniture, in relation to zamindari
estates or other impartible estates are to be established by E
custom, in the case of a sovereign Ruler, they are presumed to
exist.”
This Court in Pratap Singh (supra) has reiterated the above
principles and also observed that impartible estate and the application
of the rule of primogeniture in the case of the sovereign Ruler must be F
presumed to exist, whereas in the case of zamindari estate or another
impartible estate, the rule of primogeniture must be established by way
of custom.
16. Any property belonging to the Ruler as a sovereign, which
would devolve on succession by survivorship by application of the rule
G
of the primogeniture, would not bear an incidence of a coparcenary
property. The property belonged to one person, that is, the sovereign
Ruler as the very concept of sovereignty implies absolute authority,
6
(1854-7) 6 MIA 164: 1 Sar PCJ 521
7
(1994) Supp 1 SCC 734 H
1066 SUPREME COURT REPORTS [2019] 16 S.C.R.
A power and ownership that cannot be subjected to legal action of partition
or injunction by another person. Consequently, estates/properties of the
sovereign Ruler were impartible even though the property was ancestral.
The male members who had the right of survivorship, could not claim
the right to partition or the right to restrain alienation by the sovereign
Ruler as they had no enforceable right that could be legally remedied.
B
In short, the right or interest of sons or other members of the
coparcenary was inconsistent with sovereignty as a sovereign Ruler
could not be subjected to the municipal law and the municipal courts.
In an unreported decision in Civil Appeal No. 226 of 1965 titled Mahant
Hardial Singh v. Ajmer Singh decided on 20th November 1968 with
C regard to the powers of the Maharaja of Patiala, this Court had observed:
“We think that this appeal must fail on the short ground that the
sale in favour of Seth Banarsi Das cannot be impugned in view
of the orders made by His Highness the Maharaja of Patiala. It
must be remembered that at the time the transaction took place,
D Patiala was a native State and the Maharaja enjoyed uncontrolled
sovereign powers. At that time he was the supreme legislature,
the supreme judiciary and the supreme head of the executive.
There was no constitutional limitation on his authority to act in
any of the capacities. His orders were expressions of the
E sovereign will and they were binding in the same way as any
other law, nay, they would override all other laws which were in
conflict with them. So long as his order held the field that alone
would govern or regulate the rights of the parties concerned
though it could have been annulled or modified by him at any
time he willed.”
F
Thus, as per the custom relating to impartible estates and the
rule of primogeniture, the Raja or Ruler of a princely state would not
hold the estate as the karta or coparcener, but as the absolute owner
and the estate would be impartible. The son(s) would not acquire any
interest in the impartible estate by birth nor could they seek partition or
G restrain alienation. On the death of the Ruler, the succession to the
rulership, as also the impartible estate, was not under the Mitakshara
law of survivorship but governed by the rule of primogeniture. There
was, however, moral liability for providing maintenance to others, be it
the younger brothers or family members, which later on, by way of
H custom, virtually became an obligation.
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1067
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
17. The Privy Council in Venkata Surya Mahipati Rama A
Krishna Rao Bahadur v. Court of Wards and Others8 after referring
to the earlier case law had held that a holder of an impartible estate
can alienate the estate by way of a gift inter-vivos, or even by a will,
though the family is undivided; the only limitation on his power would
flow from the family custom to the contrary, or from the condition of
B
the tenure which has the same effect. The above dictum has been
approved by this Court in Sri Rajah Velugoti Kumara Krishna
Yachendra Varu and Others v. Sri Rajah Velugoti Sarvagna
Kumara Krishna Yachendra Varu and Others9; Bhaiya Ramanuj
Pratap Deo v. Lalu Maheshanuj Pratap Deo and Others10; Pratap
Singh (supra) and other cases. C
18. In Adocate General of Bombay v. Amerchund11 , Lord
Tenterden had during the course of discussion asked:
“What is the distinction between the public and private property
of an absolute sovereign? You mean by public property, generally
speaking, the property of the State, but in the property of an D
absolute sovereign, who may dispose of everything at any time,
and in any way he pleases, is there any distinction?” [...]
Lord Tenterden went on to observe in his judgement:
“another point made, which applies itself only to a part of the E
information, is, that the property was not proved to have been
the public property of the Peishwa. Upon that point I have
already intimated my opinion, and I have the concurrence of the
other Lords of the Council with me in its, that when you are
speaking of the property of an absolute sovereign there is no
pretence for drawing a distinction, the whole of it belongs to him F
as sovereign, and he may dispose of it for his public or private
purposes in whatever manner he may think proper.”
19. The legal incidents of sovereign and State property were
explained by the Gujarat High Court in D.S. Meramwala Bhayawala
v. Bai Shri Amarba Jethsurbhai12 in the following words: G
8
(1899) LR 26 Ind App 83
9
(1969) 3 SCC 281
10
(1981) 4 SCC 613
11
12 ER 340, 345: (1830) 1 Knapp 316,329-30
12
(1968) 9 GLR 609 H
1068 SUPREME COURT REPORTS [2019] 16 S.C.R.
A “5. […] As a sovereign ruler he would be the full and complete
owner of the Estate entitled to do what he likes with the Estate.
During his lifetime no one else can claim an interest in the Estate.
Such an interest would be inconsistent with his sovereignty. To
grant that the sons acquire an interest by birth or adoption in the
Estate which is a consequence arising under the municipal law
B
would be to make the Chief who is the sovereign Ruler of the
Estate subject to the municipal law. Besides, if the sons acquire
an interest in the Estate by birth or adoption, they would be
entitled to claim the rights enumerated above but those rights
cannot exist in a sovereign Estate. None of these rights can be
C enforced against the Chief by a remedy in the Municipal Courts.
The Chief being the sovereign Ruler, there can be no legal
sanction for enforcement of these rights. The remedy for
enforcement of these rights would not be a remedy at law but
resort would have to be taken to force, for the Chief as the
sovereign Ruler would not be subject to municipal law and his
D
actions would not be controlled by the municipal Courts. Now
it is impossible to conceive of a legal right which has no legal
remedy. If a claim is not legally enforceable, it would not
constitute a legal right and, therefore, by the very nature of a
sovereign Estate, the sons, cannot have these rights and if these
E rights cannot exist in the sons, it must follow as a necessary
corollary that the sons do not acquire an interest in the Estate
by birth or adoption.”
The legal position as explained in paragraphs 14 to 16 (supra)
was highlighted in D.S. Meramwala (supra) stating that there was not
F even a single instance where the son(s) were recognized to have an
interest in the estate for partitioning the estate during the lifetime of
the Chief. It is, therefore, clear that when the rule of primogeniture is
applicable, the principles of ancestral coparcenary property would not
apply. In the case of an impartible estate, the son(s) would not get any
interest by birth, as a son of Hindu has interest by birth in coparcenary
G property.
20. Opinion of Lord Tenterden was one of the cases cited with
approval in Revathinnal Balagopala Varma v. Shri Padmanabha
Dasa Bala Rama Varma (since deceased) and Others13. This aspect
13
H (1993) Supp 1 SCC 233
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1069
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
was further elucidated by N.D. Ojha, J. in Revathinnal Balagopala A
Varma (supra) (see paragraph 30).
21. With passage of the Indian Independence Act, 1947, the
British bid farewell to the Indian empire and transferred the political
power. India was also partitioned. Question would arise whether the
legal position had changed post 15th August 1947 on independence in B
light of the fact that the Rulers of the princely states had joined the
Indian Union after lapse of the British paramountcy. Pre-partition India
comprised of about 4095852 sq. kms. The British Crown had direct
control over 2241505 sq. kms., and the princely or native states, about
565 in number, had rights on 1854346 sq. kms. Apart from the transfer
of power and administration, integration of the princely states in the C
independent Indian Union was a complex and difficult task. In July 1947,
several Rulers of princely states and state ministers had met Sardar
Vallabhbhai Patel, Home Minister in the interim Government, to discuss
and to determine their future status. Mr. V.P. Menon in his work
‘Integration of the Indian States’14 states that the princely states to D
participate in the Constituent Assembly, were required to give up their
powers and accede to the Indian Union on three subjects, namely,
defence, foreign affairs and communications, which they agreed after
a series of informal meetings and discussions with the Rulers of the
princely states and their advisors who had realised the public sentiments
and impact of transfer of political power. Accordingly, instruments of E
accession were signed under which external affairs, defence and
communications were ceded to the Dominion by the Rulers of most of
the princely states with the exception of Junagarh, Hyderabad and
Kashmir.
22. The next step was the integration of the princely states, which F
happened in 1948-49, with the Rulers/Rajas signing merger agreements
and covenants. Thereupon, the princely states merged in the States or
into the Unions in the administered areas, thereby ensuring transfer of
absolute power from the individual Rulers to the masses i.e. the citizens
of free India. Merger agreements ensured integration of the former G
princely states into the Union of India. In return of surrender of absolute
power and sovereignty, the Rulers were assured of fair allocation of
assets, properties and fixed personal income by way of a privy purse.
The merger agreements had also granted privileges and concessions
14
Orient Longman 1985, 107. H
1070 SUPREME COURT REPORTS [2019] 16 S.C.R.
A to the former princes who had enjoyed the status of a Ruler. At this
stage, it became necessary to demarcate personal properties of the
Rulers and the State properties. The former remained the property of
the erstwhile princes while the latter became property of the State.
23. The principles followed by the Government of India in this
B process, are enunciated by Mr. V.P. Menon in his work in the following
manner:
“The broad principles evolved at this conference were as follows.
Immovable properties were to be allotted to the Rulers on the
basis of previous use, having regard to their actual needs and
C the needs of the administration. Farms, gardens and grazing
areas were allowed to be retained by some of the Rulers, but
the position of the Ruler in respect of these would be the same
as that of a private landholder and he would be subject to the
revenue laws and assessments. With regard to investments and
cash balance, only those to which the State could lay no claim,
D
were to be recognized as the private property of the Ruler.
Though we laid no claim to the personal jewellery of the ruling
family, such ancestral jewellery as was ‘heirloom’ was to be
preserved for the ruling family; and valuable regalia would remain
in the custody of the Ruler for use on ceremonial occasion…”
E
24. The principles followed by the Government of India are clearly
reflected in the White Paper on the Indian States, the relevant portion
of which reads:
“157.In the past the Rulers made no distinction between private
and State property; they could freely use for personal purposes
F
any property owned by their respective States. With the
integration of the States, it became necessary to define and
demarcate clearly the private property of the Ruler.”
25. There is no doubt that erstwhile Rulers ceased to be
sovereign post the merger agreements. However, they were entitled
G to benefits in terms of concessions which were granted under the
merger agreements which had postulated as under:
“xx xx xx
Article III: The Ruler of each of the States specied in the
H Schedule to this agreement (hereinafter referred to as “the
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1071
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
Covenanting States”) hereby cedes to the Government of India, A
with effect from the aforesaid day, fuII and exclusive authority,
jurisdiction and powers for, and in relation to, the governance of
that State; and thereafter the Government of India shall be
competent to exercise the said powers, authority and jurisdiction
in such manner and through such agency as it may think fit.
B
Article IV: (1) The Ruler of each Covenanting State shall be
entitled to receive annually from the Government of India for his
privy purse the amount specied against that Covenanting State
in the Schedule to this Agreement.
(2) The said amount is intended to cover all the expenses of the C
Ruler and his family including expenses on account of personal
staff, maintenance of his residences, marriages and other
ceremonies, etc., and shall neither be increased nor reduced for
any reason whatsoever.
(3) The said amount shall be free of all taxes and shall be paid D
in four equal instalments in advance at the beginning of each
quarter.
Article V: The Ruler of each Covenanting State, as also the
members of his family shall be entitled to all the personal
privileges, dignities and titles enjoyed by them, whether within or
E
outside the territories of that State, immediately before the 15th
day of August 1947.
Article VI: The Government of India guarantees the succession,
according to law and custom, to the gaddi of each Covenanting
State, and to the personal rights, privileges, dignities and titles of
the Ruler thereof. F
Article VII: (1) The Ruler of each Covenanting State shall be
entitled to the full ownership, use and enjoyment of all private
properties (as distinct from State properties) belonging to him on
the date of his making over the administration of that State to
the Raj Pramukh in pursuance of the Covenant. G
(2) If any dispute arises as to whether any item of property is
the private property of the Ruler or State property, it shall be
referred to a judicial ofcer to be nominated by the Government
of India, and the decision of that ofcer shall be nal and binding
on all parties concerned. H
1072 SUPREME COURT REPORTS [2019] 16 S.C.R.
A Article VIII: No inquiry shall be made by or under the authority
of the Government of India, and no proceedings shall lie in any
Court, against the Ruler of any Covenanting State, whether in a
personal capacity or otherwise, in respect of anything done or
omitted to be done by him or under his authority during the period
of his administration of that State.
B
xx xx xx
26. The Constitution of India as enacted, vide clause 2 in Article
363, had defined the expression ‘Indian State’ as any territory recognised
before the commencement of the Constitution by his Majesty or the
C Government of the Dominion of India as being a State and the ‘Ruler’
as were recognised before such commencement by his Majesty or the
Government of Dominion of India as the Ruler of Indian State. The
‘ruler’ as defined meant the Prince, Chief or any other person by whom
any such covenant or agreement as is referred to in clause (1) of Article
291 was entered into and who for the time being was recognised by
D
the President as Ruler of the princely state.
27. It is, therefore, clear that upon signing the merger agreement,
the Rulers had lost their sovereignty and, in a way, had become ordinary
citizens with certain special rights and privileges as mentioned in the
Constitution.
E
28. The legal effect of the merger agreements and whether the
customary rule of impartible estate would cease to be applicable by
applying the doctrine of ‘cessante ratione legis, cessat ipsa lex’ has
been examined in several decisions. The argument against continuation
of the customary rule is predicated on the plea that primogeniture and
F
impartibility, though not attributes of sovereignty, were customs which
existed because the rulership existed, and therefore when there was
loss of rulership, there was no need for the custom to exist. This
contention was examined in Revathinnal Balagopala Varma (supra)
and squarely rejected by S. Ranganathan, J., in the following words:
G
“5. Before discussing the principal contentions urged on behalf
of the appellant, it may be convenient to clear up a ground put
up on behalf of the first respondent purporting to be a complete
answer to the claim of the appellant ... It settled the issue as
between the Ruler and the Government of India and allowed the
H said properties to be retained by the Ruler without being
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1073
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
surrendered to the Government of India. It did not, however, A
affect or prejudice the rights, if any, of third parties in the
properties so declared. It created no title in the Ruler to any
properties other or higher than what belonged to him immediately
before the appointed day ... It did not affect in any way the
nature of any property in his hands or the claims, if any, which
B
others might have had against the Ruler qua those properties.
These propositions are clear form the decisions in Visweswar
Rao v. State of M.P. (1952 SCR 1020), Dalmia Dadri Cement
Co. Ltd. v. CIT (1959 SCR 729) and Rajendra Singh v. Union
of India (1970-2 SCR 631) as well as the clarification contained
in para 4 of the Government of India’s memorandum dated C
18.05.51 (Ex. A-4).”
29. N.D. Ojha, J. in the same judgment referred to and approved
the judgment of the Gujarat High Court in D.S. Meramwala (supra)
wherein it has been held as under:
D
“57. ... Now it was not disputed on behalf of Meramwala that if
prior to merger the Estate did not partake of the character of
ancestral coparcenary property, the properties left with
Bhayawala under the merger agreement would not be ancestral
coparcenary properties : if Meramvala did not have any interest
E
in the Estate prior to merger, he would have no interest in the
properties which remained with Bhayawala under the merger
agreement. It was not the case of Meravala and it could not be
the case since the merger agreement would be an act of State
that as a result of the merger agreement any interest was
acquired by him in the properties held by Bhayawala. Bhayawala F
was, therefore, the full owner of the properties held by him and
was competent to dispose of the same by will. ...
... The argument of Mr. I.M. Nanavati however was that the
effect of applicability of the rule of primogeniture by the
paramount power was that the rights of coparceners under the G
ordinary Hindu law were eclipsed: these rights were not destroyed
but they remained dormant and on the lapse of paramountcy, the
shadow of the eclipse being removed, the rights sprang into full
force and effect. This argument is wholly unsustainable on
principle...” H
1074 SUPREME COURT REPORTS [2019] 16 S.C.R.
A The ratio was accepted by S. Ranganathan, J. (see paragraph
11), wherein he observed that if the issue dealt with had been an
ordinary impartible estate the matter would have been different but, in
case of a sovereign state whose Chief was earlier a sovereign Ruler,
the acquisition by a sovereign Ruler cannot be claimed to be joint family
property.
B
30. In Revathinnal Balagopala Varma (supra), N.D. Ojha, J.
had thereafter proceeded to observe:
“63. In this connection it has to be kept in mind that the mode of
succession of a sovereign ruler and the powers of such a ruler
C are two different concepts. Mode of succession regulates the
process whereby one sovereign ruler is succeeded by the other.
It may inter alia be governed by the rule of general primogeniture
or lineal primogeniture or any other established rule governing
succession. This process ends with one sovereign succeeding
another. Thereafter what powers, privileges and prerogatives are
D
to be exercised by the sovereign is a question which is not
relatable to the process of succession but relates to the legal
incidents of sovereignty.
64. If someone asserts that to a particular property held by a
sovereign the legal incidents of sovereignty do not apply, it will
E
have to be pleaded and established by him that the said property
was held by the sovereign not as sovereign but in some other
capacity. In the instant case apart from asserting that the
properties in suit belonged to a joint family and respondent 1 even
though a sovereign ruler, held them as the head of the family to
F which the property belonged, the appellant has neither specifically
pleaded nor produced any convincing evidence in support of such
an assertion. It has been urged on behalf of the appellant that
only the eldest male offspring of the Attingal Ranis could, by
custom, be the ruler and all the heirs of the Ranis who constituted
joint Hindu family would be entitled to a share in the properties
G
of the Ranis and the properties in suit were held by respondent
1 as head of the tarwad even though impartible in his hands. This
plea has been repelled by the trial court as well as by the High
Court and nothing convincing has been brought to our notice on
the basis of which the presumption canvassed on behalf of the
H appellant could be drawn and the findings of the courts below
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1075
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
reversed. We are dealing with an appeal and as has been pointed A
out by this Court in Thakur Sukhpal Singh v. Thakur Kalyan
Singh it is the duty of the appellant to show that the judgment
under appeal is erroneous.”
31. Even earlier, in Mirza Raja Pushpavathi Vijayaram
Gajapathi Raj Manne Sultan Bahadur etc. v. Sri Pushavathi B
Visweswar Gajapathiraj Rajkumar of Vizianagaram and Others 15,
this Court had observed that custom outlives condition of things that
gave birth to it, with the following observations:
“The argument that the abolition of Zamindari estate must
automatically terminate the customary impartibility of the jewels C
which were treated as regalia by the family, overlooks the fact
that many times custom outlives its condition of things which gave
it birth. As was observed by Lord Atkinson in delivering the
opinion of the Board in Rao Kishore Singh vs Mst Gahenabai,
AIR 1919 P.C.100, “it is difficult to see why a family should not D
similarly agree expressly or impliedly to continue to observe a
custom necessitated by the condition of things existing in primitive
times after that condition had completely altered. Therefore, the
principle embodied in the expression ‘cessat ratio cessat lex’
does not apply where the custom outlives the condition of things
which gave it birth.” That is why we think, the contention raised E
on the ground that there was no justification for regalia in early
times at all and that if initially there was any justification, it ceased
after the abolition of the Zamindari Estates, cannot be upheld.
In the matter of proof of family custom, it is not the technicalities
of the law that would prevail but the evidence of conduct which F
unambiguously proves that the parties wanted to continue the old
custom.”
32. Any doubt or debate on whether the custom of impartibility
and the rule of primogeniture had continued post the covenants and
merger was set at rest by this Court in Pratap Singh (supra) wherein G
specific reference was made to Section 5(ii) of the Succession Act and
the debates when the Bill was introduced in the Rajya Sabha. The
relevant portion of this decision reads as under:
15
AIR 1964 SC 118 H
1076 SUPREME COURT REPORTS [2019] 16 S.C.R.
A “71. Section 5 of the Hindu Succession Act, 1956 (Central Act
30 of 1956) states as follows:
“This Act shall not apply to —
(i) * * *
B (ii) any estate which descends to a single heir by the terms
of any covenant or agreement entered into by the Ruler
of any Indian State with the Government of India or by
the terms of any enactment passed before the
commencement of this Act;
C (iii) * * *”
72. In Mulla’s Hindu Law, 16th Edn. at page 766 it is stated:
“The exception is limited to the impartible estates of Rulers of
Indian States succession to which is regulated by special
covenants or agreements and to estates, succession to which is
D regulated by any previous legislation, and the Estate and Palace
Funds mentioned in sub-section (iii).”
73. At the stage of Bill, in 1954 it was clearly brought out in the
Rajya Sabha Debates at pages 7115 and 7116 as under:
“Then there is another clause, sub-clause (ii) which says:
E
‘any estate which descends to a single heir by the terms of any
covenant or agreement entered into by the Ruler of any Indian
State with the Government of India or by the terms of any
enactment passed before the commencement of this Act;’
F This clause has been put in because, as we know, it is only after
the attainment of independence that on a large scale there has
been integration of States, and there are certain agreements and
covenants which have been entered into between the Government
and those Rulers of States, and some arrangements have been
made only very recently with respect to their line of succession.
G It is a special thing. What it says is: ‘any covenant or agreement
entered into by the Ruler’. Naturally, if we have entered into any
such agreement only as recently as 1947 or 1948 and much time
has not elapsed, it is not proper that by an enactment of a general
nature like this we should do something which will set at nought
H the agreements and the covenants which the Government of India
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1077
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
has solemnly entered into with those people and on the strength A
of which they had consented to allow their States to be integrated
with India. Of course, I agree that probably it is not entirely a
socialist pattern or whatever you call it, but as I have been always
saying, I hold the opinion that we have to proceed by the process
of evolution. I do not mince matters.”
B
74. Therefore, it can be said with certainty that this rule continued
even after 1947-48.”
33. The Hindu Succession Bill was introduced in the Rajya Sabha
on 22nd December 1954 and clause (iv) thereof reads as under:
C
“(iv) Any estate which descends to a single heir by a customary
rule of succession or by the terms of any grant or enactment”
However, the Bill was referred to a Joint Committee of
Parliament, which in its Report16 observed as under:
“The Joint Committee is further of opinion that the exception in D
sub clause (iv) should be limited to the impartible estates of Rulers
of Indian States succession to which is regulated by special
covenants or agreements and …”
Section 5(ii), in its present form, was recommended by the Joint
Committee in pursuance of its opinion quoted above, which means that E
the Rulers had impartible estates and succession to these was regulated
by special covenants or agreements. Thus, after discussion, the (iv)
exception in the Bill was deleted and was not enacted as law. The effect
thereof was that the custom of primogeniture and impartible estate in
the case of zamindars or those holding jagirs would not be applicable F
post enforcement of the Succession Act with effect from 17th June 1956.
This is an aspect which is often disregarded and not taken into
consideration while examining the ratio as expounded by this Court in
N. Padmamma and Others v. S. Ramakrishna Reddy and Others17
in which it is observed that law of primogeniture is no longer applicable
G
in India and such a provision may be held to be unconstitutional being
hit by Article 14 of the Constitution. N. Padmamma (supra) refers to
a judgment of the Supreme Court of South Africa. It may be relevant
16
Gazette of India Extra ordinary dated 28.9.1955 Part II Sec.2, page 365, ’8
17
(2008) 15 SCC 517
H
1078 SUPREME COURT REPORTS [2019] 16 S.C.R.
A to state that by this decision, the matter and issue was referred to a
larger Bench, which reference was decided vide judgment dated 23rd
September 2014 by a three Judge Bench, authored by T.S. Thakur, J.
in N. Padmamma and Others v. S. Ramakrishna Reddy and
Others 18 . This judgment in N. Padmamma (supra) does not
B specifically refer to the law of primogeniture as that issue was not
raised. Neither was the custom of impartibility of estate considered by
the larger Bench.
34. The Delhi High Court in Tikka Shatrujit Singh & Others
v. Brig Sukhjit Singh & Another19, has lucidly, in a tabulated form,
C drawn distinction between the rule of primogeniture and impartible
estate as applicable to Rulers of princely states and zamindars/jagidars
in the following manner:
S.No. Ruler of an Indian State The holder of a Zamindari
1. The Ruler (Sovereign) The holder of a Zamindari, as
D would be the absolute distinct from the Ruler of an
owner of the State and its Indian State, may hold it as an
properties. None else impartible estate. If it is
would have any interest or ancestral, he holds it on behalf
share in his property. of the family and although
E there would be no right of
partition, his interest will not be
that of an absolute owner,
which a sovereign Ruler had.
It would have been family
property and of the type
F
understood by the series of
decisions in that regard.
2. Primogeniture would be Primogeniture would not,
G presumed to apply as a repeat not, be Presumed to
Rule for succession. apply, but will have to be
proved as a Custom.
18
(2015) 1 SCC 417
19
H ILR 2011 (1) Del 704
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1079
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
A
3. He would have been signatory to He would not have been
a Covenant/agreement ceding his a party to any of the
State first (15.8.1947) to the items 3 to 5 in the first
Dominion of India on three column. This establishes
subjects, external affairs, the difference in status
communication & defence. And between a former Ruler B
thereafter – by the Covenant or on the one side and a
the Merger Agreement ceding the Zamindari on the other.
administration of his State to the This in turn, makes all the
Union or other Government prior difference to the
to 26.01.1950. applicable law. C
4. After 26 th January, 1950, he
would be recognised as a Ruler
——
of a former Indian State by the
President of India under Article
366 of the Constitution.
D
5. He would be receiving an annual
privy purse for the amount fixed
by the Ministry of States. ——
6. On his death, succession If he dies after
(properties) would be covered by 17.6.1956, succession to E
the first part of the exception his estate shall not be by
under Section 5(ii) and therefore primogeniture. It will be
not affected by the 1956 Act. If as per Section 8 of Hindu
he dies after 17.6.1956, it would Succession Act.
make no difference to the
succession which will still be by F
primogeniture.
7. He would be De-recognised as a Since he was never
Ruler by the 26th Amendment. recognised as a Ruler,
there is no question of
G
‘Derecognition’.
35. Preamble of the Succession Act states that it is an Act to
amend and codify the law relating to intestate succession amongst
Hindus and as originally enacted did not profess to amend and codify
the law relating to the nature of all the properties held by Hindus, with H
1080 SUPREME COURT REPORTS [2019] 16 S.C.R.
A the exception of Section 14 of the Succession Act. Section 4 of the
Succession Act provides that the text, rule, interpretation, custom or
usage of Hindu law will cease to have effect with respect to any matter
for which provision is made in the Act and further any other law in
force, which is inconsistent with the provisions of the Act, will cease
to apply. Section 6 of the Succession Act deals with devolution of
B
interest of a Hindu male (and daughter of a coparcener after amendment
vide the Hindu Succession (Amendment) Act 2005) having interest in
a Mitakshara coparcenary as distinct from a joint Hindu family. Sections
8 and 9 of the Succession Act relating to the general rules of succession
in case of males and females, respectively, do not apply to a living person
C but apply on the succession opening on the death. Similarly, Section
30 of the Succession Act which deals with testamentary succession
and empowers a Hindu to dispose of any property by will in accordance
with the provisions of the Indian Succession Act, 1925, does not ipso
facto apply to a living person and applies in the event of the holder’s
death. Section 5(ii) is an exception to Section 4 and protects application
D
of terms of any covenant or agreement entered into by the Ruler of
any Indian State with the Government of India or the terms of any
enactment passed before commencement of the Succession Act as per
which the estate would descend to a single heir. The provisions of the
Succession Act, with the possible exception of Section 14 and some
E amendments vide the Hindu Succession (Amendment) Act 2005, do not
apply unless the succession opens and, therefore, no legal rights of a
living person would get affected. This is clearly stated by S.
Ranganathan, J. in Revathinnal Balagopala Varma (supra), wherein
with reference to the effect of the Succession Act, it was observed:
F “19. ...Section 4 the Act, in the words of Sundari v. Laxmi
(supra), “gives overriding application to the provisions of the Act
and lays down that in respect of any of the matters dealt with
in the Act all existing laws whether in the shape of enactment
or otherwise which are inconsistent with the Act are repealed.
Any other law in force immediately before the commencement
G of this Act ceases to apply to Hindus insofar as it is
inconsistent with the provisions contained in the Act.” In
other words, while the Act may have immediate impact on some
matters such as, for e.g., that covered by s.14 of the Act, its
impact in matters of succession is different. There the Act only
H provides that, in the case of any person dying after the
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1081
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
commencement of the Act, succession to him will be governed A
not by customary law but only by the provisions of the Act. This
is, indeed, clear if we refer to the terms of s.7(3) which get
attracted only when a sthanamdar dies after the commencement
of the Act. There is, therefore, no reason to hold that the
appellant’s entitlement to sue for the partition of the properties
B
arose on June 17, 1956.”
36. Legal effect of Section 5(ii) was examined earlier by a three
Judge Bench of this Court in Bhaiya Ramanuj Pratap Deo (supra)
wherein after referring to Section 5(ii), it was observed:
“15. … This section protects an estate which descends to a single C
heir by the terms of any covenant or agreement entered into or
by the terms of any enactment inasmuch as Hindu Succession
Act is not applicable to such an estate. This section stands as
an exception to Section 4 of the Act referred to above.”
37. After referring to the above articles/covenants in Pratap D
Singh (supra), it was observed:
“78. A careful reading of Article XII shows that there is a clear
distinction between the private properties and the State properties.
Such private properties must be belonging to the Ruler and must
be in his use and enjoyment even earlier. Therefore, properties E
which were recognised even earlier as such private properties
alone were to be left out and submitted for the recognition as
such. As stated in White Paper (para 157, page 23 supra), the
demarcation and the settlement of the list was carried out for
the purposes of Integration. If this be the correct position of law, F
the contrary observations of the learned Single Judge are not
correct.”
38. A Constitution Bench of five judges in Kunwar Shri Vir
Rajendra Singh v. The Union of India and Others20 had referred
to clause (22) of Article 366 of the Constitution to observe that it was
G
not a mere definition clause, but a clause that empowered the President
to recognise a Ruler “for the time being” which indicates that the
President has power not only to recognise but also to withdraw
recognition whenever occasion arises. This recognition was for the
20
(1969) 3 SCC 150 H
1082 SUPREME COURT REPORTS [2019] 16 S.C.R.
A purpose of the right to privy purse under Article 291 of the Constitution
which was a charge on and paid out of the Consolidated Fund of India.
However, it was held that the privy purse was not a private property
to which the Ruler succeeded. It was also clarified that the right to
private property of a Ruler is not embraced within clause (22) of Article
366 of the Constitution. Accordingly, recognition of rulership by the
B
President does not recognize any right to private property of the Ruler
because recognition of rulership is an exercise of the political power
of the President. Thus, recognition of rulership is not an indicia of
property, instead it conferred and entitled the Ruler to enjoyment of the
privy purse and personal rights, privileges and dignities of the Ruler.
C Equally, the recognition of rulership did not delegitimize the right to
property and claim of the Ruler to any property, which he would have
to establish in the court of law. Even more important in the present
context are the observations of this Court with reference to Article XIV
of the Covenant for the United State of Rajasthan, which the erstwhile
“sovereign” Ruler had entered into and thereby was guaranteed
D
succession or the right to claim succession with respect to the private
property according to the personal law. This Court held that with the
coming into effect of the Constitution, the rulership or the States had
ceased to exist as separate entities. Even the Covenants would cease
to exist after the enactment of the Constitution in so far as they were
E inconsistent with the Constitution. However, the personal law of
succession in view of Article XIV of the Covenant was protected and
preserved. The Court had accordingly clarified the legal position on the
claim to succession, by observing:
“8. … The meaning of Article XIV of the Covenant is that the
F claim to succession on the basis of custom and law is preserved.
Article XIV of the Covenant by itself is not evidence of any
custom or law. If the petitioner relied on Article XIV, the
petitioner has to establish such right based on custom or law
before the appropriate authority”.
G The ratio of the Constitution Bench in Vir Rajendra Singh
(supra) is a binding precedent for it recognizes the personal law
of succession of the Rulers and therefore, the rule/custom of
primogeniture applicable to impartible estates belonging to
erstwhile Rulers of the princely states. This custom/rule was not
abrogated with the loss of sovereignty that the Rulers had forgone
H with the signing of the merger agreement.
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1083
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
39. In Thakore Shri Vinayasinhji (supra), Pratap Singh (supra), A
Revathinnal Balagopala Varma (supra), Madhav Rao Jivaji Rao
Scindia (supra), this Court has applied the rule of primogeniture to the
estates of such Rulers by giving effect and protection to the personal
law, that is, the rule of primogeniture as provided vide the covenant
and merger agreement. Consequently, even after the erstwhile Rulers
B
had surrendered their sovereign rights and their kingdoms/estates had
merged with the Dominion of India, the succession and all its
concomitant rights to their erstwhile sovereign property now held as
private property, would devolve vide the merger agreement and the
Constitution as per the customs applicable to the erstwhile Rulers.
Relying on the Constitution, and sub-section (ii) to Section 5 of the C
Succession Act, this Court has, time and again, held that the law of the
land is pervious to the rule of primogeniture. The recent decision of
this Court in Talat Fatima Hasan Through Her Constituted Attorney
Sh. Syed Mehdi Husain v. Nawab Syed Murtaza Ali Khan (D) By
LRs. And Others in Civil Appeal No. 1773 of 2002 decided on July
D
31, 2019 pertains to the Muslim Personal Law (Shariat) Application Act,
1937 applicable to the State of Rampur. This is clear from paragraph
12 of the judgment in Talat Fatima Hasan (supra), which records that
the only issue to be decided was whether the properties held by the
Nawab would devolve on his eldest son by applying the rule of
primogeniture or would be governed by the Muslim Personal Law E
(Shariat) Application Act, 1937 and devolve on all his legal heirs.
40. It may be pertinent to state here that the succession on death
of Brij Nath Singh had opened on 13th October 1968, which is before
Article 362 relating to the rights and privileges of the Indian Rulers was
repealed by the Constitution (26th Amendment) Act, 1971. Article 362, F
before it was repealed, stated that in exercise of the power of Parliament
or of the Legislature of a State to make laws or in the exercise of the
executive power of the Union or a State, due regard shall be had to
the guarantee or the assurance given under any such covenant or
agreement referred to in Article 291 with respect to the personal rights,
privileges or dignities of the Ruler of an Indian State. G
41. Faced with the aforesaid position, learned counsel for the
appellants had submitted that the property being a leasehold Nazul plot
located in Allahabad and owned by the superior lessor, i.e. State of Uttar
Pradesh, it could not be treated as a sovereign property in the hands
of Raghubir Singh and also in the hands of Brij Nath Singh. The H
1084 SUPREME COURT REPORTS [2019] 16 S.C.R.
A property should be treated as coparcenary property belonging to the
joint Hindu family and not as impartible property to which the rule of
primogeniture would be applicable. This contention must be rejected.
Brij Nath Singh had taken over as a Ruler of the State of Maihar in
the pre-independence era when the Rulers, though subject to British
supremacy, were treated as absolute sovereign Rulers within their own
B
territories. There was no distinction between public and private property
of the Rulers since the distinction would be counter to the basic attribute
of sovereignty. In Pratap Singh (supra), the subject matter included
properties held by the ruling Chief of Nabha estate in the British territory,
i.e. territory outside the Home State. One such property known as
C Sterling Castle in Shimla, was purchased in the name of the friend of
the ruling Chief in view of the restriction put by the Britishers on
acquisition, whether direct or indirect, by a sovereign or Feudatory
Princes of lands in the British territory. After the Britishers had left,
the friend of the ruling Chief had relinquished his title and conferred it
upon the three sons and widow of the late ruling Chief. The ruling Chief
D
had also acquired a property in Delhi. The contention that these two
properties were private properties and not State properties was rejected
by this Court.
42. In Draupadi Devi and Others v. Union of India and
Others,21 the dispute pertained to perpetual leasehold rights of a
E property in Delhi called Kapurthala House which was purchased by
Jagatjit Singh, the then Maharaja of Kapurthala by a registered sale
deed 19th January 1935. The question whether it was personal or State/
sovereign property was decided in favour of the Union of India holding
that it was a State or sovereign property, notwithstanding the alleged
F command of the Maharaja in 1940 purportedly declaring Kapurthala
House as his personal and private property. Reference was made to
aide-memoire dated 1st March 1937 by Lieutenant Colonel Fisher
declaring the Kapurthala House as a State property. Thus, leasehold
properties situated outside the princely states have been held to be State
or sovereign property. Therefore, the contention of the appellants that
G the property being leasehold Nazul land situated outside the princely
state was personal property must be rejected in the absence of any
other evidence or material to rebut the presumption that the property
was a part of the impartible estate belonging to the sovereign Ruler.
21
H (2004) 11 SCC 425.
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO 1085
(DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.]
On the other hand, inheritance of the property post the death of A
Raghubir Singh by the new Ruler including Brij Nath Singh by
application of the rule of primogeniture to the exclusion of others son(s)
would indicate that it was treated as a State or sovereign property.
43. In view of the aforesaid discussion, it has to be held that the
property was a part of the impartible property i.e., the property though B
ancestral was not a part of the coparcenary property, but was a part
of the estate of the sovereign Ruler, Brij Nath Singh. Further, Brij Nath
Singh could transfer the property inter-vivos or make a bequest by way
of a will. The contention that the property was a separate or personal
property and, therefore, not a part of the impartible property has not
been established and has not been proved by the appellants by leading C
evidence and material to dispel the presumption.
44. For the aforesaid reasons, we do not find any merit in the
present appeals and the same are dismissed affirming the final findings
of the High Court. There would be no order as to costs.
D
Divya Pandey Appeals dismissed.
E
F
G
H
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