2026 INSC 571 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11179 OF 2011

TIKKA SHATRUJIT SINGH & ORS. …APPELLANT (S)

VERSUS

SUKJIT SINGH & ANR. …RESPONDENT (S)

J U D G M E N T

PANKAJ MITHAL, J.

1. We have heard Shri Nikhil Nayyar, Senior Counsel for the

appellants, Shri Santosh Paul and Dr. Arun Mohan, Senior

Counsel appearing for the contesting respondent and Shri Raj

Shekhar Rao, Senior Counsel representing the proforma

respondent No.2-Ms. Gayatri Devi, who is supporting the case

of the appellants.

2. The dispute in this appeal is between two arms of the erstwhile

royal family of Kapurthala. One arm is that of Brigadier Sukhjit

2

Singh

1, the eldest male lineal descendant of late Maharaja

Paramjit Singh of Kapurthala, who has also been recognized as

the ruler of Kapurthala by the Government of India. The other

arm is led by his estranged wife, Smt. Gita Devi (now deceased)

and their two sons, Shatrujit Singh and Amanjit Singh (now

deceased), as well as their two daughters, Priti Devi and Gayatri

Devi.

3. The Brigadier filed Original Suit No.35 of 1977 seeking a

declaration of certain properties as his personal properties.

Another suit, being Original Suit No. 1052 of 1977, was filed by

his wife, sons, and daughters, seeking partition of the family

properties, claiming that certain properties were ancestral

coparcenary and private properties in the hands of the Brigadier

and, as such, have to be divided as per the Hindu Law.

4. The Brigadier contends that under the Customary Law, in

accordance with the rule of primogeniture applicable to princely

states in India, the properties, whether public or private, were

inherited by him as his personal properties and he is free to deal

1

Hereinafter referred to as ‘the Brigadier’

3

with them in the manner he likes. These are not the coparcenary

properties liable for partition under the Hindu Law.

5. The Original Suit No.1052 of 1977 was initially decided by the

Single Judge of the High Court sitting on the original side by

judgment and order dated 06.04.1992, and it was held that the

properties were ancestral coparcenary and private properties of

the Brigadier and, as such, were liable to be partitioned in

accordance with the Hindu Law. In terms of the above

judgment, the other Original Suit No.35 of 1977 was dismissed

on the same date.

6. The Brigadier applied for the review of the aforesaid judgment,

which was partly allowed vide order dated 28.04.1995, and the

two suits were directed to be reheard on merits except on issue

Nos. 6 to 9. Upon rehearing, the single Judge ruled in favour of

the Brigadier vide judgment and order dated 03.09.2004 ,

holding that under the rule of primogeniture, the Brigadier had

succeeded to the properties except for those mentioned in

Exhibit DA and PW-1/1, the two family settlements. He was

4

held to be the absolute owner of the properties and the suit for

partition as such was dismissed.

7. The above judgment and order of the Single Judge was carried

in appeal under Section 96 of the Code of Civil Procedure,

1908

2, to the Division bench of the High Court. The Appellate

Court, vide judgment and order dated 19.11.2010, affirmed the

judgment, order, and decree passed by the Court of the first

instance. Therefore, the arm led by Smt. Gita Devi, except one

of the daughters, i.e., Smt. Gayatri Devi, who has been

arraigned as a proforma respondent, has filed the present

appeal. The said proforma respondent is supporting the case of

Smt. Gita Devi and others.

8. Thus, under challenge in this appeal is the judgment and order

dated 19.11.2010 passed by the Division Bench of the High

Court in exercise of powers under Section 96 of the CPC,

affirming the judgment and order of the Single Judge on the

original side dated 03.09.2004 by which the suit of the Brigadier

2

Hereinafter referred to as ‘CPC’

5

was decreed and that of partition filed by Smt. Gita Devi and

others was dismissed.

9. According to the factual matrix of the two suits, Gita Devi and

others contend that the properties mentioned in paragraph 8 of

the plaint of Suit No.1052 of 1977 are ancestral and

coparcenary properties, and as such, they are entitled to their

partition and separate share. They, along with the Brigadier,

form an HUF. They were all joint in estate and mess up until

August 1976, when the Brigadier deserted the family and

started living separately at the Gymkhana Club, New Delhi.

10. The Brigadier contested the aforesaid suit by filing a written

statement inter alia contending that Smt. Gita Devi had no locus

to file the suit, and no partition can be claimed in respect of the

properties which form part of the impartible estate. The said

properties have devolved upon him also by virtue of the two wills

of his grandfather, Maharaja Jagatjit Singh, and his father,

Maharaja Paramjit Singh, dated 16.01.1949 and 10.07.1955,

respectively. Therefore, he claims to be the absolute and

6

exclusive owner of the said properties. The said properties are

assessed for taxation as his individual properties.

11. He further contended that in the State of Punjab, there is no

right of partition in respect of joint family estates during the

lifetime of the father and that under the rule of primogeniture,

which is prevalent as per custom, he is the exclusive owner of

the entire estate. He has also been recognised by the

Government as the ruler of Kapurthala and received a privy

purse of Rs. 2,70,000/- per annum until the enactment of the

26

th Amendment to the Constitution, 1971, by which privy

purses were abolished.

12. The Brigadier, on 13.01.1977, filed Suit No.35 of 1977 against

his wife and children seeking ownership of the two properties,

i.e., Villa at Kapurthala and the Chateau in Mussoorie, along

with all movables lying therein, alleging that they are his

personal and exclusive properties and that the property at

Greater Kailash, B-90/A, also exclusively belongs to him as he

acquired it from his personal funds.

7

13. In short, the crux of the stand of the Brigadier was that

Kapurthala was a Princely State and its ruler was the sovereign

head. Thus, the properties of the State were not the joint Hindu

family/coparcenary property, which could be subjected to

partition. The rule of primogeniture is prevalent in the State by

virtue of which he, being the eldest male lineal descendant,

succeeded to all the properties. The Hindu Law or the

Mitakshara Law does not apply to such properties. Even the

lapse of British Paramountcy on 15.08.1947, the merger of the

State of Kapurthala on 20.08.1948 or the enforcement of the

Constitution of India with effect from 26.01.1950 made no

difference to create any coparcenary deviating from the rule of

primogeniture.

14. On the basis of the aforesaid pleadings, the Court of first

instance framed as many as eleven issues. Issue Nos. 6 to 9

were in context with the two wills of Maharaja Jagatjit Singh

and Maharaja Paramjit Singh as pleaded by the Brigadier.

Those issues were decided by the Single Judge against him, and

it was held that the grandfather's will does not exist and that

the father’s will is invalid. When the review was considered, the

8

Court without touching issue Nos. 6 to 9, directed for the

rehearing of the matter on merits on other issues except issue

Nos. 6 to 9. The relevant portion of the review order dated

28.04.1995 is reproduced herein below:

“Hence, I allow both the applications but I

grant the review in respect of issues no.1 to 4,

5, 10 and 11. The findings of this Court with

regard to the issues 6 to 9 in my opinion do

not call for any review.”

In other words, the matter was reopened on issues other than

issue Nos. 6 to 9, which were in relation to the will. It is in view

of the above direction that, upon rehearing, the learned Single

Judge trying the suits had not gone into the issues in relation

to the wills. The matter regarding wills stood concluded as per

the decision of the Court of first instance dated 06.04.1992.

15. It may not be out of context to mention that the Princely State

of Kapurthala, with an area of about 630 sq. miles, was founded

by Baba Jassa Singh Sahib in the year 1772. He conquered

Kapurthala in 1780 and made it his capital. He died in 1783,

and as he had no son or nephew, he was succeeded by his

second cousin, Bhag Singh. Maharaja Jagatjit Singh was the 7

th

9

ruler of Kapurthala. He assumed full ruling powers on

24.11.1890. He ruled for about six decades and is considered

the architect of modern Kapurthala.

16. During his tenure, the British paramountcy elapsed on

15.08.1947. Subsequently, he signed a merger agreement on

05.05.1948, and his sovereignty ceased on 20.08.1948 with the

formal merger of the State of Kapurthala into the Patiala and

East Punjab States Union ( PEPSU). The merger

agreement/covenant in question is Exhibit D-23. He died on

19.06.1949, merely a year after the signing of the merger

agreement.

17. In other words, before the death of Maharaja Jagatjit Singh, the

sovereignty of the State of Kapurthala had come to an end with

the signing of the merger agreement on 05.05.1948. Thus, he

was divested of the State of Kapurthala, retaining for himself

only the throne and the “private properties” as declared by him.

Despite the end of sovereignty, he continued to be recognised as

a ruler primarily for the purpose of receiving the privy purse and

some other privileges.

10

18. At the cost of repetition, it must be noted that, after

independence, the rulers of Faridkot, Jind, Malerkotla, Nabha,

Patiala, Kalsia, Nalagarh, and Kapurthala signed a covenant of

merger, and all these estates merged into PEPSU with effect

from 20

th August 1948. Until the merger, Maharaja Jagatjit

Singh was the sovereign ruler of Kapurthala. Thereafter, his

sovereignty came to an end, and he retained royalty only for the

purposes of receiving the privy purse and some other privileges

attached to it.

19. The covenant of merger signed by him clearly provides that the

erstwhile ruler shall be entitled to full ownership, use and

enjoyment of all properties as distinct from the State properties.

In accordance with the document of accession, Maharaja

Jagatjit Singh, prior to merger, had declared that the Chateau

in Mussoorie would devolve upon his heirs and successors as

private personal property. He, thereafter, by the declarations

dated 11.08.1948 and 11.04.1949, declared certain properties

to be his private properties in terms of the covenant, which

included most of the properties mentioned in paragraph 8 of the

plaint of Suit No.1052 of 1977.

11

20. Maharaja Jagatjit Singh, on his death, left behind three sons,

as two other sons had pre-deceased him. The three surviving

sons were Paramjit Singh, Karamjit Singh and Ajit Singh. Ajit

Singh was born to him through a Spanish wife, and all through

had lived abroad and never involved himself in the family affairs

or claimed any right in the properties. The other son, Karamjit

Singh, was younger; therefore, Maharaja Jagatjit Singh was

succeeded by his eldest son, Paramjit Singh, to the throne as

the 8

th ruler of Kapurthala, but he died shortly thereafter, on

19.07.1955, within six years of succession.

21. It was only after the demise of Maharaja Paramjit Singh that his

eldest son Brigadier succeeded him as the 9

th ruler of

Kapurthala. He was also recognised as such by the Government

of India by a notification dated 04.08.1956. He continued to

receive the privy purse till it was abolished by the Constitution

(26

th Amendment) Act, 1971.

22. The Brigadier was married to Gita Devi on 20.02.1958, from

which wedlock, two sons and two daughters were born, who are

in support of Gita Devi.

12

23. In the meantime, the Hindu Succession Act came into force with

effect from 17.06.1956.

24. In the above backdrop, the point for consideration before us is

about the character of the properties held by Maharaja Jagatjit

Singh which with the passage of time devolved upon Maharaja

Paramjit Singh and then upon the Brigadier: (i) whether the said

private properties are joint Hindu family/coparcenary

properties or absolute properties in the hands of Brigadier; and

(ii) whether they would henceforth devolve upon his heirs by

virtue of the rule of primogeniture or in accordance with the

mode of succession under the Hindu Law.

25. According to Black’s Law Dictionary, 11th Edition,

‘primogeniture’ in its simplest form denotes a condition of being

the firstborn child among siblings. Under the common law, the

firstborn inherits his ancestor’s estate to the exclusion of the

younger siblings. This common law right is generally described

as a rule of primogeniture and is also termed as

‘primogenitureship’.

13

26. Ordinarily, according to it, the eldest among the heirs, male or

female, succeeds to the estate to the exclusion of others ,

whereas in the case of lineal male primogeniture, the eldest male

member succeeds to the exclusion of the others.

27. Male lineal Primogeniture, therefore, is a rule of succession

which is applicable to impartible estates in the case of rulers

and monarchs. Under this rule, the eldest son or the firstborn

son succeeds to the throne to the exclusion of his younger

brothers. In other words, the rule of succession by which the

firstborn son succeeds to the entire estate of the rulers to the

exclusion of other sons is called the rule of primogeniture.

28. There are judicial precedents considering the scope and

applicability of the custom of impartible estate and that the rule

of primogeniture was a general rule of succession in all princely

States of India.

29. In H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia

Bahadur of Gwalior & Ors. v. Union of India & Anr.

3, it

has been observed by Justice G.K. Mitter that, invariably, the

3

(1971) 1 SCC 85

14

rule of lineal male primogeniture coupled with the custom of

adopting a son prevailed amongst the Hindu rulers. Even

Lieutenant Colonel James Tod in his work “Annals and

Antiquities of Rajasthan” of Oxford University Press 1920,

reprinted in 1978 by M.N. Publishers, New Delhi, states that the

law of primogeniture prevails in all Rajput sovereignties. It

connotes that the existence of the rule of primogeniture is well

recognised as a custom amongst the princely states of India in

accordance with Section 48 of the Indian Evidence Act, 1872.

30. It is, thus, well acceptable in this country that the application

of the rule of primogeniture in the case of sovereign rulers must

be presumed to exist. Thus, as per the rule of primogeniture, the

ruler of a princely estate would hold the estate as an absolute

owner, and it would be impartible. No one can acquire any

interest in such an impartible estate by birth or adoption. The

succession to rulership as well as to the impartible estate would

be governed by the rule of primogeniture.

31. Accepting that the rule of primogeniture was prevalent and

applicable, it is said that only the succession to the throne as a

15

ruler was by way of the rule of primogeniture, but succession to

the private properties had to be in accordance with the Hindu

Law, meaning thereby that all members of the

family/coparceners have the right in those properties and could

claim partition.

32. In a way, a distinction has been sought to be made between the

private properties of the ruler and the public properties to which

he succeeded.

33. Having explained the background case history and the rule of

primogeniture which was prevalent in the royal families of India,

we first embark upon examining the nature and character of the

properties involved in the two suits in the hands of Maharaja

Jagatjit Singh, which ultimately devolved upon the Brigadier.

34. In suit No. 35 of 1977, instituted by the Brigadier on

13.01.1977, it was inter alia prayed therein that an injunction

be granted restraining Smt. Gita Devi from visiting or entering

the Villa at Kapurthala and the Chateau in Mussoorie. In view

of the averments made in the aforesaid suit, only the aforesaid

two properties are involved therein.

16

35. It may not be out of context to mention that in Civil Suit No. 35

of 1977, the Brigadier in the plaint itself vide paragraph 6

admitted himself as the Karta of the HUF of which he and his

two sons were co-parceners. Meaning thereby, existence of

coparcenary is admitted to him. The relevant extract of

paragraph 6 of the aforesaid plaint is reproduced hereinbelow:

“6. The Plaintiff is also Karta of the HUF of

which he and his two sons Shatrujit Singh and

Amanjit Singh are coparceners.”

36. In the Partition Suit No.1052 of 1977 instituted by Smt. Gita

Devi on 29.11.1977, the properties involved are mentioned in

paragraph 8 of the plaint.

37. A combined reading of the averments contained in the two suits

reveals that the dispute between the parties is with regard to

the following properties:

“1. Villa at Kapurthala

2. A double-storeyed residential house be bearing

Municipal No. B-90-A, Greater Kailash I, New

Delhi.

3. Commercial flat No. 101 on the first floor of the

building known as Surya Kiran situate at

Kasturba Gandhi Marg, New Delhi. It was

purchased in the joint names of Gita Devi and

the Brigadier with ancestral funds and is

coparcenary property.

17

4. A residential house known as Villa Bound -vista

and cottage Villa Chalet, servants quarters,

garages with orchard and gardens attached

thereto situate in village Chuharwal, District,

Kapurthala, purchased jointly in the names of

Tikka Shatrujit Singh (first son) and Maharaja

Kumar Amanjit Singh (deceased second son)

vide sale deed dated 08.06.1971 from the funds

of HUF.

5. The residential place in Mussorie, known as

Chateau with St. Helens, Mussoorie together

with servants quarters, garages, out-houses,

Tennis courts, gardens etc.

6. All movables including furniture, carpets, de art,

paintings, drapery, Crockery, cutlery etc. lying

in the Villa Kapurthala, Chateau and St. Helens,

Mussoorie and B-90 A; Greater Kailash, New

Delhi.

7. All jewellery and valuables lying in the safes

and Toskhana inside the Villa, Kapurthala and

in the safes in Chateau, Mussorie.

8. Jewellery lying in locked brief case kept in locker

No. 325, Grindlays Bank, H Block, Connaught

Place, New Delhi, containing a very valuable

emerald, three crown pieces, and 4 packages

containing jewellery.

9. Jewellery lying in Societies General, Bouleward

Haussmann, Paris, France, under the joint

names of Gita Devi and Brigadier.

10. Shares in joint stock companies, share

certificate of which are lying in the safe custody

with the First National City Bank, Fort, Bombay,

under the joint names of Gita Devi and

Brigadier.

11. Any other properties of which the plaintiffs are

not aware and which are in possession of

defendant No. 1 and belong to the HUF.”

38. The covenant of 05.05.1948 entered into by the rulers of

Faridkot, Jind, Malerkotla, Nabha, Patiala, Kalsia, Nalagarh,

18

and Kapurthala for the purposes of formation of PEPSU inter

alia provides as under:

˝ARTICLE VI

(1) The Ruler of each covenanting State shall as soon as

may be practicable, and in any event not later than the

20

th

of August, 1948 make over the administration of his

State to the Raj Pramukh and thereupon.

a) All rights, authority and jurisdiction belonging to the

Ruler which appertain, or are incidental to the

Government of the Covenanting state shall vest in the

Union and shall hereafter be exercisable only as

provided by this Covenant or by the Constitution to be

framed thereunder;

b) All duties and obligations of Ruler pertaining or

incidental to the Government of the Covenanting State

shall devolve on the Union and shall be discharged by it;

c) All the assets and liabilities of the Covenanting State

shall be the assets and liabilities of the Union, and

d) The military forces if any, of the Covenanting State shall

become the military forces of the Union.

….. ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. …. …. ….

ARTICLE VIII

The Raj Pramukh shall, as soon as practicable and in

any event not later than the 30

th

of August 1948 execute

on behalf of the Union an Instrument of Accession in

accordance with the provisions of the Section 8 of the

Govt. of India Act, 1935, and in place of the Instruments

of Accession of the several Covenanting States; and he

shall by such Instrument accept as matters with respect

to which the Dominion Legislature may make laws for

the Union all the matter mentioned in List I and List III of

the Seventh Schedule to the said Act, except the entries

in List I relating to any tax or duty.

….. ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. ….. …. …. ….

ARTICLE XI

19

1. The Ruler of each Covenanting State shall be entitled to

receive annually from the revenues of the Union for his

Privy purse the amount specified against that

Covenanting State in Schedule I;

Provided………. ……. ……. ……. ……. ……. ……. ……. …….

2. The said amount is intended to cover all the expenses of

the Ruler and his family including expenses of his

residences, marriages and other ceremonies, etc. and

shall subject to the provision of paragraph

(1) Neither be increased nor reduced for any reason

whatsoever.

…… …… …… …… …… …… …… …… …… …… …… … … ……

ARTICLE XII

(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.

(2) He shall furnish to the Raj Pramukh before the 20th day

of September, 1948, an inventory of all the immovable

properties, securities and cash balances held by him as

such private property.

(3) 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 such person as the Govt. of India may

nominate in consultation with the Raj Pramukh and the

decision of that person shall be final and binding on all

parties concerned.

Provided that no such dispute shall be so referable after the

30th June, 1949.

… …… …… …… …… …… …… …… …… …… …… … … ……

ARTICLE XIV

(1) The Succession, according to law and custom, to the

Gaddi of each Covenanting State, and to the personal

rights, privileges …….. and titles of the Ruler thereof is

hereby guaranteed.

20

(2) Every question of disputed succession in regard to a

Covenanting State which arises after the inauguration of

the Union shall be decided by the Council of Rulers after

referring it to a bench consisting of all the available

Judges of the High Court of the Union and in accordance

with the opinion given by such bench.

… …… …… …… …… …… …… …… …… …… …… … ... ......˝

39. Upon a bare reading of the terms and conditions of the aforesaid

covenant, it is clear that all rights, authority and jurisdiction

belonging to the ruler and incidental to the Government of the

covenanting State shall vest in the Union; all duties and

obligations of the ruler pertaining or incidental to the

Government of the covenanting State shall devolve upon the

Union of India and shall be discharged by it; and all assets and

liabilities of the covenanting State shall be the assets and

liabilities of the Union of India. In other words, the covenanting

State ceases to exercise any authority or jurisdiction as the ruler

and all the assets and liabilities of the ruling clan shall become

the assets and liabilities of the Union.

40. In lieu of the above, the ruler of each covenanting State was

entitled to receive annually from the revenue of the Union, a

privy purse of the amount as may be specified, which was

intended to cover all the expenses of the ruler and his family,

21

including expenses for his residences, marriages and other

ceremonies, etc.

41. In addition to the above, Article XII of the covenant specifically

provides that the ruler of each State shall be entitled to full

ownership, use and enjoyment of all the private properties (as

distinct from the State properties) and that the ruler shall

furnish, on or before 20.09.1948, an inventory of all the

immovable properties, securities and cash balances held by him

as private property. In other words, the ruler of the covenanting

State was given ownership only in respect of private properties

to be declared by him in the form of an inventory on or before

20.09.1948.

42. In furtherance of the above covenant, then Maharaja Jagatjit

Singh of Kapurthala, on 11.08.1948, declared the following

properties comprising the Mussoorie Estate to be his private

and personal properties with full power of disposition and

transfer over it. He explicitly declared that these properties

would descend to his heirs and successors as their private and

personal property. The said properties of the Mussoorie Estate

are as follows:

22

1. Chateau

2. St. Helens

3. St. Helens Cottage

4. Wycliffe

5. A.D.C. Quarters

43. Further, on 11.04.1949, the Maharaja declared certain other

properties to be his private properties, which include the

following:

“HOUSES –

1. Jagatjit Palace along with all the buildings,

structures etc. situated within its premises together

with all the furniture and other persons (resident of

His Highness the Maharaja) Area 245 Ghumaons 1

Kanal 1 Marla.

2. Elysee with all the buildings, structures, etc.

situated within its premises together with all the

furniture and other articles (residence of Her

Highness the Maharani Sahiba) Area 26, Ghumaons

3 Kanals 13 Marlas.

3. Villa Bona Vista along with all the buildings,

structures, etc. situated within its premises together

with all the furniture and other articles. Situated on

the bank of river Bein about three miles from

Kautilya town (residence of the heir-apparent) Area

26 Ghumaons 0 Kanal 1 Marla.

4. Mahijit Niwas along with all the buildings,

structures etc. situated within its premises together

23

with all the furniture and other articles (residence of

the widow of Maharajkumar Mahijit Singh, son of

His Highness the Maharaja).

5. Sunny Side along with all the buildings,

structures, etc. situated within its premises together

with all the furniture and other articles. (residence

of Maharajkumar Karamjit Singh, son of His

Highness the Maharaja).

6. Ivanhoe along with all the buildings, structures

etc. situated within its premises together with all the

furniture and other articles. (residence of

Maharajkumar Ajit Singh, son of his Highness the

Maharaja).

Mussoorie

7. Chateau Kapurthala along with all the buildings,

structures, etc. situated within its promised all the

furniture and other articles. (the summer residence

of His Highness the Maharaja).

8. St. Helens along with all the buildings, structures,

etc. situated within its premises together with all the

furniture and other articles. (the summer residence

of Her Highness the Maharani. This building is

situated within the premises of Chatean

Kapurthala).

9. St. Helens Cottage along with all the buildings,

structures, etc. situated within its premises together

with all the furniture and other articles (the summer

residence of Maharajkumar Karamjit Singh).

10. Wycliffe along with all the buildings, structures,

etc. situated within its premises together with all the

furniture and other articles (the summer residence of

the widow of Maharajkumar Mahijit Singh).

24

(Note: Already declared as private properties by the

Maharaja on 11.08.1948)

LANDS AND JAGIRS

….. ….. ….. ….. …..

CARS

….. ….. ….. ….. …..

LIVESTOCK

….. ….. ….. ….. …..

SECURITIES AND CASH BALANCES

….. ….. ….. ….. …..”

44. In view of the covenant of merger and the declarations made by

the then Maharaja, only the above properties declared by him

to be his personal private properties came under his personal

ownership with full rights of use and enjoyment thereof and the

rest of the properties, being State properties, vested in the

Union of India.

45. Upon comparison of the properties in dispute under the two

suits and the properties declared to be the personal properties

25

of the ruler, it is evident that all properties under the suits were

either declared to be the personal properties of the Maharaja or

were acquired from the sale proceeds of some of them. Besides

the above, one or two of the properties were held in joint names

or were jointly purchased from the sale proceeds of the erstwhile

private properties and as such were joint in nature.

46. The issue, therefore, is how the aforesaid properties of the ruler

declared to be the private personal properties (as distinct from

the public properties) would devolve upon the heirs and

successors.

47. Upon the signing of the merger covenant, Maharaja Jagatjit

Singh ceased to be an absolute sovereign and assumed the

status of an ordinary citizen of India. The recognition of the

Maharaja as the Ruler by the President of India under Article

366 (22) of the Constitution of India was a political or an

executive act for ceremonial purposes entitling the Maharaja to

receive privy purse and other connected privileges, but it was

not an indicium of ownership of property.

48. Article XIV of the covenant guarantees to the ruler, the

succession according to law and custom, to the Gaddi (throne)

26

of each covenanting State and to the personal rights, privileges

and titles to the ruler thereof. The aforesaid article confines the

rule of succession prevalent according to law and custom, i.e.,

primogeniture, only with regard to Gaddi (throne) and the

personal rights, privileges and title of the ruler. It does not

guarantee succession according to law and custom, or

primogeniture, to the ruler's private personal property. Rather,

Article XII provides that the ruler of each covenanting State

shall be entitled to full ownership, use and enjoyment of all

private properties (as distinct from State properties) belonging

to him and that he shall furnish an inventory of all immovable

properties, securities and cash balances held by him as private

properties. In consonance with the above covenant , an

inventory of private properties was declared by the then

Maharaja Jagatjit Singh. Therefore, the properties so declared

by him as per the inventory became his private personal

properties, over which he had full ownership and right of use

and enjoyment. The covenant nowhere provide d that such

private and personal properties declared by the Maharaja would

be governed by the rule of primogeniture.

27

49. The Mussoorie Declaration of 11.08.1948 (Exhibit D -1) by

Maharaja Jagatjit Singh, in unequivocal terms, declares the

properties of Mussoorie to be his private and personal properties

that would descend to his “heirs and successors” as private and

personal property. The use of the words “heirs and successors”

in the plural form indicates the Maharaja's explicit intention

that the said properties be succeeded by all his heirs and

successors, not by a single successor, which contradicts the

rule of primogeniture.

50. On the reading of the aforesaid declaration, it can be

comfortably said that the Maharaja had not only declared some

of his properties as private and personal properties but has also

expressed his intention that they would devolve upon his heirs

and successors in the normal way, rather than under the rule

of primogeniture. This was done by the Maharaja in exercise of

his powers as a sovereign ruler before the actual merger had

taken place on 20.08.1948. Thus, it was in the nature of a

sovereign decree having the force of law to the effect that the

sovereign ruler intended to share his private personal properties

28

amongst all his descendants, rather than to a single individual

heir.

51. One of the earliest decisions of a Three-Judge Bench of this

Court on the point in issue is in the case of Revathinnal

Balagopala Varma v. His Highness Padmanabha Dasa Bala

Rama Varma

4, which is generally referred to as the ‘Travancore

case’. In that case, the Maharaja of Travancore, the sovereign

ruler, signed the covenant of merger with the erstwhile Cochin

State, thereby becoming part of the territory of the Dominion of

India with effect from 01.07.1949. The terms and conditions of

the said covenant were similar to those in the present case. The

Maharaja of Travancore also declared certain properties to be

his private property. A suit was subsequently filed by one of the

Maharaja's family members, claiming that the Maharaja was

not the sole owner of those properties, even though they had

been declared private property. This Court accepted that, before

accession, the properties of the State of Travancore devolved

from ruler to ruler by the rule of male-lineal primogeniture, and

4

1993 Supp (1) SCC 233

29

that there was no distinction between private and State

properties. The Maharaja exercised sovereign power over the

entire estate, i.e., over all the properties. However, keeping in

view the fact that the Maharaja had specifically declared the

properties in dispute to be his private properties under the

covenant, it was held that these properties acquired the status

of his private and personal properties and were no longer the

properties of the State.

52. Another Three-Judge Bench of this Court in Talat Fatima

Hasan through her constituted attorney Syed Mehdi

Husain v. Syed Murtaza Ali Khan (Dead) through legal

representatives & Ors.

5, commonly known as Rampur Case,

also had an occasion to consider the issue “whether succession

to the properties declared by an erstwhile ruler to be his private

properties in the agreement of accession with the Dominion of

India will be governed by the rule of succession applicable to

‘Gaddi (rulership)’ or by the personal law applicable to the

‘ruler’.”

5

(2020) 15 SCC 655

30

53. In the Rampur Case, the Nawab of Rampur, Raza Ali Khan, also

signed the merger agreement with the Union of India. Under the

terms of that agreement, the Nawab was entitled to full

ownership, use and enjoyment of all private properties (as

distinguished from State properties) belonging to him, and he

was required to furnish to the Dominion Government an

inventory of such immovable properties , etc., which he

considered to be his private and personal properties.

Accordingly, the Nawab vide Declarations dated 31.05.1949 and

27.06.1949 declared a number of properties to be his personal

properties. The State of Rampur ceded to the Dominion of India

w.e.f. 01.07.1949, and the Nawab was declared to be a ruler in

terms of Article 366 (22) of the Constitution of India.

54. Thus, in the above background, an issue was raised in the suit

as to whether the legal heirs of the Nawab were entitled to share

in the properties the Nawab had declared as his private and

personal property. The suit was ultimately carried to this Court.

The central point of discussion was whether the private

properties held by Nawab Raza Ali Khan would devolve upon his

31

eldest son under the rule of primogeniture, or be governed by his

personal law and devolve upon all his legal heirs.

55. This Court after considering the various precedents on the

subject right from 1952 till date as also in the case of H.H.

Maharajadhiraja Madhav Rao (supra) popularly known

“Princes Privy Purses Case” held that a ruler under Article 366

(22) of the Constitution of India is a person who is a former

prince, chief or other person who was, on or after 26.01.1950,

recognised as a ruler having signed the covenant of accession.

Such person, though defined as a “ruler” has no territory and

exercises no sovereignty over any subjects. He is simply a citizen

of India with certain privileges because he or his predecessors

surrendered their territory, powers, and sovereignty to the

Dominion of India. Apparently, such rulers were in name only,

with no lands or personal property. They were Rajas without

Praja.

56. In the aforesaid case, this Court cited with approval the case of

Kunwar Shri Vir Rajendra Singh v. Union of India & Ors.

6,

6

(1969) 3 SCC 150

32

hereinafter referred to as Dholpur Case, where in a similar

factual situation, the Constitution Bench held that the right to

private properties of the last ruler depends upon the personal

law of succession. The recognition of the ruler as a right to

succession to the Gaddi (throne) by the President is an exercise

of political power. In other words, it was held that the right to

succession to the Gaddi is distinct from the right to succession

to private properties, which has to be in accordance with the

personal law of succession. The contention that the Dholpur

Case was set aside by the Princes’ Privy Purses Case was not

accepted; rather, it was appropriately explained by holding that

the use of the expression “political power” in the Dholpur Case

was inappropriate and that the appropriate term could have

been “executive power”. Thus, the observations in the Princes’

Privy Purses Case did not impact the underlying ratio laid down

in the Dholpur Case. The Constitution Bench also negated the

contention that succession to Gaddi would automatically mean

succession to private properties and that the private properties

are properties attached to Gaddi. It was held that succession to

the Gaddi (throne) was only a matter of courtesy to protect their

33

erstwhile titles but the properties declared as personal

properties had to be treated as their private properties only and

not as attached to the Gaddi (throne) for the purpose of

succession by the rule of primogeniture. In the ultimate analysis,

the Constitution Bench held that succession to the Nawab’s

private property had to be governed by his personal laws, not by

the rule of primogeniture. This Court also repelled the argument

that the rights of the rulers stood guaranteed by the

Constitution in a way that it protected the rule of primogeniture

for all properties, holding that Article 362 only applies to protect

the personal rights, privileges and dignities of the ruler of an

erstwhile Indian State and would not include succession to

personal properties. The relevant excerpt from the judgment is

as under:

“44. ... However, one thing which is clear is that

the rulers enjoyed right to privy purses, private

properties and privileges only because of the

Constitution and in other respects they were

ordinary citizens. It was urged that since the

rights were guaranteed under the Constitution,

the rule of primogeniture would apply. We find

no force in this contention because, as already

discussed above, in Article 362 reference is

made only to the personal rights, privileges and

34

dignities of the ruler of an Indian State and, in

our view, rights would not include succession to

personal properties.”

57. The issue of applicability of the law of primogeniture in the

matter of succession in the context of the erstwhile Princely

State had also come up for consideration before the three

Judges Bench in the case of the State of Faridkot in Maharani

Deepinder Kaur (since deceased) through legal

representatives & Ors. v. Rajkumari Amrit Kaur & Ors.

7. In

the said case, the ruler of Faridkot, Raja Harinder Singh, also

entered into a similar covenant on 05.05.1948 with the

Government of India and executed the instrument of accession,

as a result of which the Faridkot State became a part of the

Indian Union.

58. The aforesaid covenant is one and the same as the covenant

entered into by Maharaja Jagatjit Singh in respect of the State

of Kapurthala.

59. In the case of Faridkot, two suits were filed concerning

succession to the properties of the Raja, which were shown to

7

(2022) 9 SCC 658

35

be private property under the covenant. The dispute travelled to

the High Court, wherein, apart from other issues, one of the

points of determination formulated was whether the law of

primogeniture is applicable to the succession of the private

properties of the deceased ruler, Maharaja Harinder Singh of

Faridkot.

60. The High Court, in answering the above point, observed that

prior to the merger agreement, the properties in question were

held by the late Raja as a sovereign, and there was no

distinction between the State and private properties, as the

sovereign ruler was the owner of all the properties. However,

following the merger and accession, some of the properties were

earmarked by the Raja as his personal property, leaving the rest

as State property. Upon the declaration of the list of private

properties, the same ceased to be State properties. Article XII of

the covenant permitted full ownership, use, and enjoyment of

all private property (as distinct from State property) and,

therefore, the concept of impartible State disappeared with the

merger. On the declaration of these properties as private

properties, the said properties lost the sovereign character that

36

existed prior to the covenant. Moreover, Article XIV of the

covenant only recognised succession to the Gaddi (throne)

according to law and custom and not to the private properties.

It cannot be said that the Gaddi (throne) included the private

properties. This is clear from the simple reading of Article XIV

together with Article XII of the covenant. The Government never

guaranteed succession to the private properties under the

covenant, and, therefore, the private properties were left to be

succeeded in accordance with personal law. The relevant

paragraphs of the High Court Judgment i.e., paragraph 78 to

83 are quoted below:

“78. Now coming to the conclusion whether

Law of Primogeniture is applicable in the

succession of Estate of deceased Raja

Harinder Singh, …….

79. Prior to merger agreement, the property in

question was held by the late Raja as sovereign

and there was no distinction between the State

and the private properties, as sovereign was

owner of all the properties. After the merger

agreement and accession to Dominion of India,

the properties were earmarked by late Raja as

his personal properties for which he was

competent to do so under the Covenant. After

approval of the properties in the list submitted

by the Raja as his personal properties, the

37

same ceased to be State properties. Reference

can be made to paras 61, 63, 64, 67 and 69

of Revathinnal Balagopala

Varma v. Padmanabha Dasa Bala Rama

Varma [Revathinnal Balagopala

Varma v. Padmanabha Dasa Bala Rama

Varma, 1993 Supp (1) SCC 233] .

80. On merger of Faridkot State with

Dominion of India, rule of primogeniture, if

any, ceased to exist on account of Act of State.

In the Covenant dated 5-5-1948, there is no

clause/article which either recognises or

guarantees the continuance of alleged rule of

primogeniture. The Covenant has been

reproduced in the White Paper. As per Article

XII of the Covenant, the Ruler of each

Covenanting State was entitled to the full

ownership, use and enjoyment of all the

private properties as distinct from the State

properties, belonging to him on the date of his

making over the administration of the State to

Rajpramukh. As per Clause (2) of Article XII,

the Ruler of each Covenanting State was

required to furnish an inventory of all the

immovable properties, securities and cash

balances to the Rajpramukh before 20 -9-

1948. This inventory is in the context of

immovable properties, securities and cash

balances held by the Ruler as private

properties. On approval of list by Rajpramukh,

the properties in the hands of the Ruler

became his absolute properties and he was

entitled to deal with his properties in the

manner he liked. Once the properties have

38

been retained by the Ruler as his personal

properties after surrendering the sovereignty

to Government of India, pursuant to the

Covenant, then the properties held by him are

his private properties and other members of

royal family had no claim. Reference can be

made to paras 69 & 81 to 86 of Revathinnal

Balagopala Varma case [Revathinnal

Balagopala Varma v. Padmanabha Dasa Bala

Rama Varma, 1993 Supp (1) SCC 233] .

81.

……………………………………………………….

82. The impartible estate of Hindu Undivided

Family, if any, existed prior to the Covenant

entered by the Ruler disappeared on account

of an Act of the State. The territories of former

State of Patiala have merged into the

territories of India and all the joint Hindu

family property/impartible estate, which

existed prior to the accession have ceased to

exist on account of Act of the State. The grant

of private properties to the Ruler was an Act of

State and such properties cannot maintain the

earlier character which was prior to entering

into Covenant by the Ruler with Government

of India. Impartibility of Estate ceased to exist

on account of merger into the Dominion of

India and, therefore, rule of primogeniture, if

any, ceased to exist on account of merger of

Faridkot State with Dominion of India. The

guarantee under the Covenant was only in

respect of succession to Gaddi and not to the

private properties. The right to private

properties of the ex-Ruler depends upon the

39

personal law of succession to such private

properties.

83. Article XIV of the Covenant only recognised

the succession to “Gaddi” and not to the

private properties, as approved in Article XII of

the Covenant. Gaddi and private properties

are two distinct connotations and it cannot be

said that Gaddi included private properties in

any manner. Clause (1) of Article XIV of the

Covenant prescribed that 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 is hereby guaranteed. Article XIV

does not extend the assurance and guarantee

to private properties in any manner. The

guarantee with regard to succession,

according to law and custom is given to the

Gaddi of each covenanting State and to the

personal rights, privileges, dignities and title to

the ex-Rulers thereof. There is no guarantee

with regard to succession according to law and

custom qua the private properties. The

Government never guaranteed succession

according to law and custom to the private

property of the Ruler which he kept after

submission of the list to the Rajpramukh.

Reference can be made to White Paper on India

States published by Government of India,

Ministry of States issued on 5-7-1948. Part XI

of the Indian States under the new

Constitution under the head “Guarantees

Regarding Rights and Privileges” and Part VII

“Settlement of Rulers Private properties”

40

would show that the nomenclature has been

reflected in the White Paper, wherein it has

been mentioned that prior to the Covenant,

there was no distinction between private and

State property of the Ruler. In the White Paper,

it has been mentioned that upon integration of

States, Ruler was required to furnish list of

immovable properties, securities and cash

balances, etc. claimed by him as private

property and upon approval of the same, the

Ruler was entitled to full ownership and

enjoyment of private properties as distinct

from State properties. The personal privileges

of the ex-Ruler and those privileges have

nothing to do with the personal property of the

Ruler. The guarantee or assurance are in

respect of personal rights, privileges and

dignities of the Ruler. It does not extend to

personal property which is different from

personal rights, privileges and dignities of the

Ruler. In this context reference can be made to

the ratio of Sudhansu Shekhar Singh

Deo v. State of Orissa [Sudhansu Shekhar

Singh Deo v. State of Orissa, AIR 1961 SC 196]

(five-Judge Bench) and State of

Bihar v. Kameshwar Singh of

Darbhanga [State of Bihar v. Kameshwar

Singh of Darbhanga, (1952) 1 SCC 528 : AIR

1952 SC 252] (five-Judge Bench).”

61. This Court, sitting in a combination of three Judges, in

Maharani Deepinder Kaur (supra) in context with the

41

aforesaid judgment, upheld the findings and the observations

made by the High Court. The findings were approved as fully

justified and, thus, by a comprehensive reasoned judgment ,

turned down the challenge to the judgment and order of the

High Court. In other words, the judgment and order of the High

Court were upheld. The view taken that the rule of primogeniture

continues to apply only with respect to the succession to the

Gaddi (throne) and not to the personal private properties

declared as such by the erstwhile Maharaja was accepted. This

Court in the ultimate analysis held as under:

“32…. The findings rendered by the High Court

were, therefore, fully justified and there is no

reason to entertain any challenge in that

behalf.”

62. In view of all the above Full Bench decisions of this Court on the

point in issue, we can safely conclude that no doubt that

succession to the throne of the Maharaja in the Princely State

of India including that of Kapurthala was being governed by the

ruler of male lineal primogeniture, but it altogether took a

different connotation after the merger agreement was signed

and some of the properties were declared to be the private and

42

personal properties of the Maharaja. The covenant preserved

the rule of primogeniture only in respect of succession to the

Gaddi (throne) but in no way guaranteed this in respect of the

private personal properties of the Maharaja; rather Article XII of

the covenant clearly provided that the ruler of each covenanting

State shall be entitled to full ownership, use and enjoyment of

all private properties, as distinct from State properties,

belonging to him, provided he furnished an inventory of all such

properties by a particular date. This confirms that the covenant

only protected the Maharaja’s full ownership, use and

enjoyment of all private properties. These private properties

were recognised as the properties belonging to the Maharaja as

properties having been inherited from the family, but no rule of

the covenant or any Article of the Constitution protected such

private properties in the hands of the Maharaja from the

ordinary rule of succession as applicable. Consequently, the

said properties were treated as the ordinary property of a private

citizen and were even subject to taxation and acquisition in the

ordinary way.

43

63. In the above context, a reference may be made to the

Constitution bench decision in the case of Visweshwar Rao vs

The State of Madhya Pradesh

8, wherein some of the

properties declared by the erstwhile ruler as private properties

under the covenant of merger were sought to be acquired by the

State. Upon a challenge to the said acquisition, it was argued

that such private property was protected by Article 362 of the

Constitution and could not be taken over by the State. This

Court rejected that argument, holding that no doubt the

properties became private properties by virtue of the covenant

as distinguished from the properties of the State, but then in

respect of such properties, the ruler did not stand in a better

position than any other owner possessing private property;

therefore, such private properties were not immune from

acquisition. Article 362 of the Constitution did not prohibit the

acquisition of properties declared as private properties by the

ruler under the covenant of merger, nor did the Constitution

guarantee their perpetual existence in the hands of the

8

1952 SCR 1020

44

erstwhile ruler. The guarantee under Article 362 was of a limited

nature, ensuring only that the private properties declared by the

ruler would not be claimed as State properties. The guarantee

or assurance was limited to the personal rights, privileges, and

dignity of the ruler and did not extend to his personal property.

64. In another case of Sudhansu Shekhar Singh Deo vs State of

Orissa

9, the erstwhile ruler of Sonepur, in terms of the merger

agreement with the Dominion of India, declared some of the

properties to be his private properties. The agricultural income

from some of these private properties was subjected to tax

under the provisions of the Orissa Agricultural Income Tax Act,

1947. The ruler of Sonepur challenged the imposition of this tax

by means of a petition and contended that, as a ruler prior to

the merger, he was immune from taxation and that , as a

sovereign ruler, he could not be subjected to taxation within his

own State. The argument was repelled by the Constitu tion

Bench, holding that the privilege guaranteed under the

covenant of merger is a personal privilege available to the him

9

(1961) 1 SCR 779

45

as an ex-ruler and that privilege does not extend to his personal

properties.

65. The conspectus reading of all the above decisions clearly brings

out a distinction between the personal and private properties of

an erstwhile ruler, as declared by him under the covenant of

merger/accession and those belonging to the State. All the

aforesaid decisions also make it clear that the covenant of

merger only protected the succession to the Gaddi and to the

personal rights according to law and custom or by rule of

primogeniture but not with regard to the properties declared to

be the private properties inasmuch as after the merger the ruler

became a citizen of the country but with certain privileges, and

without any sovereign control over public properties or over the

subjects. Therefore, the succession to such private ancestral

properties must be in accordance with the personal law of the

ruler and not as per any custom or rule of primogeniture.

66. In contrast to the decisions mentioned above, a Division Bench

of this Court in Trijugi Narain (Dead) Through Lrs. & Ors vs

46

Sankoo (Dead) Through Lrs. & Ors.

10 had an occasion to

consider in context with the State of Maihar, whether the

impartible properties of the former ruler , post-merger

agreement or after the enactment of the Hindu Succession Act,

had ceased to be an impartible estate and were converted into

coparcenary property of the joint Hindu family.

67. This Court observed that there are judicial precedents

acknowledging the custom of impartible estates and that the

rule of primogeniture was a general rule of succession in all the

princely states. This Court, relying upon Pratap Singh vs

Sarojini Devi

11, observed that impartibility and the application

of the rule of primogeniture in the case of a sovereign ruler must

be presumed to exist, whereas in the case of zamindari estates

or other impartible estates, the rule of primogeniture must be

established by way of custom. Thus, a distinction was made

between an estate of the sovereign ruler and that of the

zamindar. It was also observed that an impartible estate,

though ancestral, was clothed with the incidence of self-

10

2019 SCC OnLine SC 1604

11

1994 Supp. (1) SCC 734

47

acquired and separate property, except with regard to the right

of survivorship, which was consistent with the custom of

impartibility.

68. In the ultimate analysis, this Court held that as per the custom

relating to impartible estates and the rule of primogeniture, the

ruler of the princely state would not hold the estate as the Karta

or coparcener, but as the absolute owner, and the estate would

continue to remain impartible. Consequently, 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, succession to the rulership and the impartible estate

would not be governed by the Mitakshara law of survivorship

but by the rule of primogeniture, although the successor would

remain morally bound to provide maintenance to the other

family members.

69. This Court further placing reliance upon D.S. Meramwala

Bhayawala vs Bai Shri Amarba Jethsurbhai

12 held that

when the rule of primogeniture is applicable, the principles of

12

(1968) 9 GLR 609

48

ancestral coparcenary property would not apply. In the case of

an impartible estate, the son(s) would not get any interest by

birth, as such a right under Hindu Law is restricted to

coparcenary property only. This Court, further relying on the

covenant of merger, observed that upon signing the merger

agreement, the rulers surrendered their sovereignty and

assumed the status of ordinary citizens, albeit with certain

rights and privileges as set out in the Constitution.

70. The Court further again placing reliance upon Pratap Singh

(supra) observed that any doubt or debate on whether the

custom of impartibility and the rule of primogeniture continued

post-covenant and merger is no longer res integra, in view of the

three Judges Bench decision of this Court in the case of Bhaiya

Ramanuj Pratap Deo vs. Lalu Maheshanuj Pratap Deo

13 and

Section 5 (ii) of the Hindu Succession Act, wherein it has been

provided that an estate which descends to a single heir by the

terms of any covenant or agreement entered shall not be

governed by Section 4 of the Hindu Succession Act, effectively

13

(1981) 4 SCC 613

49

exempting it from the Hindu Succession Act. This Court, in the

aforesaid decision of Trijugi Narain (supra) concluded that the

succession to the erstwhile sovereign property now held as

private property would devolve vide the merger agreement and

the Constitution according to the customs applicable to the

erstwhile rulers. Furthermore, it held that the recent decision

dated 31

st July 2019 of the Supreme Court in Talat Fatima

Hasan (supra), which pertains to Muslim Personal Law, would

not be applicable, as the issue therein was whether the

properties held by the Nawab would devolve upon his eldest son

by applying the rule of primogeniture or would be governed by

the Muslim Personal Law.

71. In short, this Court in Trijugi Narain (supra) in ascertaining

whether the impartible properties of a former ruler post-merger

agreement or after the enactment of the Succession Act would

continue to remain as impartible estates or would be converted

into coparcenary property of the joint Hindu family , by

implication held that the three Judges decision of Talat Fatima

Hasan (supra) would not be applicable as it concerns the

50

applicability of Muslim Personal Law. The relevant extract of the

Trijugi Narain (Supra) is reproduced hereinbelow:

“45. …..The recent decision of this Court

in Talat Fatima Hasan v. Nawab Syed Murtaza

Ali Khan [Talat Fatima Hasan v. Nawab Syed

Murtaza Ali Khan, (2020) 15 SCC 655] decided

on 31-7-2019 pertains to the Muslim Personal

Law (Shariat) Application Act, 1937 applicable

to the State of Rampur. This is clear from para

13 of the judgment in Talat Fatima Hasan [Talat

Fatima Hasan v. Nawab Syed Murtaza Ali

Khan, (2020) 15 SCC 655] , 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 (Shariat) Application Act,

1937 and devolve on all his legal heirs.”

72. It was further held in Trijugi Narain (Supra) that in view of

D.S. Meramwala (supra), Pratap Singh (supra) and Bhaiya

Ramanuj Pratap Deo (supra), the succession to erstwhile

sovereign property now held as a private property would devolve

as per the customs applicable to the erstwhile rulers i.e., the

rule of primogeniture.

73. This Court in Trijugi Narain (Supra) did not consider the

central issue that was involved in Talat Fatima Hasan (supra)

51

by simply stating that the said decision was limited to Muslim

Personal Law. The ratio of Talat Fatima Hasan (supra) is not

appreciated in all its facets. The question is not about the

applicability of Personal Law, but rather whether the rule of

primogeniture applies, thereby excluding Personal Law. The

answer in the three-judge bench judgments is on the rule of

primogeniture that the private properties held by the Nawab,

upon cessation of sovereignty, would not automatically devolve

upon his eldest, by applying the rule of primogeniture but would

be governed by his personal laws, whether it happened to be

Muslim or Hindu Personal Laws.

74. It may be important to note that though the Division Bench

decision in Trijugi Narain (Supra) sought to distinguish the

three Judges' decision in the case of Talat Fatima Hasan

(supra), but thereafter another case, Maharani Deepinder

Kaur (supra), was rendered on 07

th September 2022, which

ruled otherwise. Therefore, as a matter of judicial discipline, the

decision of the Division Bench in Trijugi Narain (Supra) would

not prevail over the decision of the three Judges in Maharani

Deepinder Kaur and that of Talat Fatima Hasan (supra).

52

75. Judges interpret statutes; they do not interpret judgments. In

other words, they interpret the words of the statutes, but their

words are not to be interpreted as statutes. Reference in this

regard may be held to the decision of this Court in Bharat

Petroleum Corporation Ltd. and Anr. v s. N.R. Vairamani

and Anr

14. In Herrington vs. British Railways Board

15, Lord

Morris said:

“There is always peril in treating the words of

a speech or judgment as though they are

words in a legislative enactment, and it is to

be remembered that judicial utterances made

in the setting of the facts of a particular case.”

76. In view of the aforesaid dictum, we need not interpret the

observations and the findings returned by the various decisions

of this Court, but rather ought to concentrate on the

interpretation of the documents and the statutes , which

interpretation is clearly spelt out in the earlier three Judges

decisions of this Court and lastly in another three Judges

decision in the case of Maharani Deepinder Kaur (supra).

14

AIR 2004 SC 4778

15

1972 (2) WLR 537

53

77. It may not be out of context to refer to Section 5 of the Hindu

Succession Act, 1956, which came into force on 17 June 1956.

The aforesaid Act provides for overriding effect over any text,

rule or interpretation of Hindu Law or any custom or usage as

part of Law in force and that such law shall cease to have effect

with respect to any matter provided for under the Act. Sections

6 and 8 of the Act provide for the devolution of interest in

coparcenary property, and Section 5 is an exception to it. The

relevant part of Section 5, for our purposes, is reproduced

herein below:

“5. Act not to apply to certain properties.—This

Act shall not apply to—

(i) …

(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;

(iii) …”

78. The aforesaid Section 5 (ii) of the Hindu Succession Act

specifically excludes the application of the Act to the estates

which descend to a single heir of a ruler under the terms of the

54

covenant or agreement of merger with the Government of India.

However, the aforesaid provision was not in force at the relevant

time when the properties in question devolved upon Maharaja

Paramjit Singh in 1949. At that point, the succession opened

under the ordinary law in force. Therefore, the consequent

devolvement of the personal private properties of the Maharaja

would also be viewed through the lens of the personal law

applicable to the parties at that time.

79. In Trijugi Narain (supra), this Court relied upon Bhaiya

Ramanuj Pratap Deo (supra), which only observed that Section

5 (ii) of the Hindu Succession Act protects an estate which

descends to a single heir by the terms of any covenant and that

the Hindu Succession Act would not be applicable to such

estates. However, interestingly, in the case at hand, the

estate/the private properties declared by the ruler devolved

upon the single heir, Maharaja Paramjit Singh, on 19.06.1949

immediately after the merger agreement. At that time, the Hindu

Succession Act was not in force. The said Act was enforced with

effect from 17.06.1956, and by that time, the properties had

already acquired the status of private property of the then ruler,

55

Maharaja Paramjit Singh, in his capacity as an ordinary citizen,

due to the signing of the merger agreement. Accordingly, the

Hindu Succession Act or Section 5(ii) of the Act, which exempts

estates descending to a single heir under a covenant, is not

applicable here. The said properties/estate did not constitute

the ruler's estate, as the merger covenant guaranteed such

custom only for the Gaddi (throne), not for private property. As

the private properties of an ordinary citizen, they were required

to devolve according to the ordinary personal law then in force,

namely, the Hindu Mitakshara Law.

80. In view of the above discussion that the properties declared to

be the private properties of the Maharaja would devolve

according to Hindu Law/ Law of Succession and not by rule of

primogeniture, the judgment and order of the learned Single

Judge as well as of the Division Bench of the High Court which

holds that the rule of primogeniture would prevail in the

succession of properties is illegal and is unsustainable in law.

81. Shri Nikhil Nayyar, Senior Counsel, representing the arm led by

Smt. Gita Devi, in the end, has passed on a list of immovable

and movable properties which presently remain the subject

56

matter of the dispute, as all other properties have since ceased

to exist. This list of properties is not disputed by the other side.

82. The said list mentions four immovable properties. The first two

are a Double-storey residential house No. B/90-A, Greater

Kailash-I, New Delhi and Commercial Flat No. 101 on the first

floor of the building “Surya Kiran”, Kasturba Gandhi Marg, New

Delhi. Both of these properties were admittedly purchased with

part of the sale proceeds from the ancestral properties, namely

Jagatjit Palace and Elysee Palace in Kapurthala, which were

originally declared the private property of the Maharaja. Both

these properties, though purchased from the nucleus of the

ancestral properties, stand in the joint names of Brigadier and

Smt. Gita Devi. Thus, irrespective of their character as ancestral

or individual, they are liable to be partitioned at least between

the Brigadier and Smt. Gita Devi.

83. It may also be worth noting that the counsel for both parties on

09.09.2001 stated before the Court of first instance as under:

“We agree that the properties B-90-A, Greater

Kaialash, flat No. 101, Surya Kiran, New Delhi,

and the shares of Continental Devices India

Ltd., all standing in the joint names of plaintiff

No. 3 (Smt. Gita Devi) and defendant No. 1

57

(Brigadier), were acquired from the sale

proceeds of Jagatjit Palace and Elysee Palace,

Kapurthala.”

84. Thus, the acquisition of the above properties in the joint names

out of the sale proceeds of the private ancestral properties is an

admitted fact by both parties.

85. The third property is the residential house, The Villa Bouna

Vista, along with Cottage Villa Chalet, servant quarters,

garages, etc., situated in Village Chuharwal, District

Kapurthala. This property is admittedly in the joint names of

his two sons, including the deceased son, Amanjit Singh. It was

also purchased with part of the sale proceeds of the ancestral

properties, namely Jagatjit Palace and Elysee Palace,

Kapurthala. This property, therefore, if not to be partitioned

amongst all the family members, is at least liable to be divided

between the two joint owners or their successors.

86. It is also worth noting that after the demise of one of the sons,

namely, Amanjit Singh, on 10.11.1991, the High Court declared

his mother Smt. Gita Devi to be his sole, absolute and rightful

heir to succeed to his rights in the Villa Bouna Vista.

58

87. In addition to the above, the Brigadier, in his written statement

filed in Civil Suit No. 1052 of 1977, accepted that the Villa

Kapurthala, referring to Villa Bouna Vista, stands registered in

the name of his sons, although he contended that the entire sale

consideration was paid by him. He explicitly stated therein that

he had “no objection” to the said property continuing in the

names of his two sons. The relevant paragraph 23 of the written

statement of the Brigadier in the aforesaid is extracted below:

“23. With regard to the Villa property the

answering defendant submits that the said

property stands registered in the hands of

the Plaintiffs 1 and 2. The entire

consideration for the said property was paid

by the answering defendant as is recorded

in the sale deed pertaining to the said

property.

Without prejudice to the contention of the

Defendant No. 1 in the foregoing

paragraphs, for the limited purpose of the

present suit only, the answering defendant

has no objection to the villa property

continuing to stand in the names of

Plaintiffs 1 and 2. The defendant No. 1

reiterates that the Plaintiff No. 3 has no

manner of right, title or interest in the Villa

property or in the contents of the Villa

property.”

88. In light of the joint statement made by the counsel for the

parties and the admissions in the written statement of the

59

Brigadier, all the above three properties held in joint names are

open for division, at least between the joint owners. Therefore,

the Brigadier cannot deny partition with respect to these assets.

89. The last and fourth immovable property is the property in

Mussoorie, i.e., Kapurthala Chateau and St. Helens, including

all associated movable property, such as furniture, carpets, etc.

These have been declared to be the private personal properties

of the ruler. Therefore, this property is to be partitioned as per

the rule of succession under the Hindu Law or Hindu

Succession Act, 1956, excluding the exception contained in

Section 5(ii) of the Act.

90. Insofar as jewellery lying in Sociétés Générale, Bouleward

Haussmann, Paris, France and the shares in joint stock

companies lying in the safe custody with the First National City

Bank, Fort, Bombay, they are not the properties that have been

declared to be the private personal properties of the ruler.

Therefore, these properties would not devolve upon the family

members under Hindu Law.

91. Thus, the immovable property at Mussoorie comprising of

Kapurthala Chateau and St. Helens, Mussoorie is the only

60

property declared to be the private property which would

devolve upon all the family members. Rest of the immovable

properties are in the joint names and are liable to division

between the joint holders. All other properties which are

immovable in nature have not been declared to be the private

properties and would not devolve upon the family members.

92. Accordingly, the Mussoorie property, is liable to be divided/

partitioned in equal proportions (1/4th each) among the four

surviving heirs: The Brigadier, one surviving son and two

daughters. This final division accounts for the intestate shares

of the deceased son and the deceased mother, Smt. Gita Devi,

which have been redistributed among the survivors in

accordance with Sections 8 and 15 of the Hindu Succession Act.

Regarding the Delhi properties (B-90A, Greater Kailash-I and

Flat No. 101, Surya Kiran), these were admittedly jointly

registered in the names of the Brigadier and Smt. Gita Devi.

Upon the demise of Smt. Gita Devi, her undivided 1/2 share

devolves equally among her four Class I heirs (husband, son,

and two daughters) at 1/8th each under Section 15(1)(a) of the

Hindu Succession Act. Consequently, Brigadier is entitled to a

61

5/8th share (1/2 original + 1/8 inherited), while surviving son,

and two daughters are each entitled to a 1/8th share in these

properties.

93. Other property i.e. Villa Bouna Vista along with Cottage Villa

Chalet, servant quarters, garages etc. at Kapurthala is in the

name of the two sons, therefore, the Brigadier has no share in

the same. The said property was jointly held by two sons in

equal proportion and accordingly each of them held 1/2 share

therein. Upon the demise of one of the sons in the year 1991,

his undivided 1/2 share devolved upon his mother Smt. Gita

Devi, she being his Class-I heir under the Hindu Succession

Act. Thereafter, upon the subsequent demise of Smt. Gita Devi,

the said 1/2 share devolved equally upon her surviving heirs

namely the Brigadier, the surviving son and the two daughters.

Consequently, the surviving son would retain his original 1/2

share and would further inherit 1/8th share out of the estate of

Smt. Gita Devi, thereby becoming entitled to 5/8th share in the

aforesaid property. The Brigadier and the two daughters would

each be entitled to 1/8th share therein.

62

94. On the basis of the above discussion, our conclusions are

summarized as under: -

(i) There is a general presumption in India that the estate of

the ruler and monarch of a princely state, as per the

custom, stands governed by the rule of male lineal

primogeniture;

(ii) After the signing of the agreement of merger and

notification of certain properties as the personal private

properties of the Maharaja, only the perceived throne

devolved according to the rule of primogeniture, but not the

personal private properties of the ruler;

(iii) Following the lapse of the British paramountcy and the

signing of the agreement of merger, the Maharaja assumed

the status of the ruler only for the namesake to succeed to

the Gaddi and to enjoy certain privileges attached to it, the

personal private properties declared to be so by him would

devolve upon his successors in accordance with the

Muslim/Hindu Law or subsequently in accordance with

the Hindu Succession Act and not by the rule of

primogeniture;

63

(iv) The Division Bench decision in Trijugi Narain (supra)

would not override the ratio laid down by the three-Judges

Bench in the cases of Travancore, Talat Fatima Hasan

(Rampur) (supra) and Faridkot. The Three-Judge Bench

decision in the Faridkot case, being the latest in time,

may be without referring to Trijugi Narain (supra), the

ratio laid down therein would prevail and thus the

properties declared to be the personal private properties of

the ruler would devolve not according to the rule of

primogeniture but according to the personal law, whether

Muslim Law or Hindu Law;

(v) Finally, of the four immovable properties, three, as stated

earlier, are in the joint names of the family members.

Therefore, irrespective of the applicability of the rule of

primogeniture or the Hindu law, they are liable to division

between the joint holders; and

(vi) Lastly, the only immovable property which remains is the

property at Mussoorie, i.e., Kapurthala Chateau, and St.

Helens, Mussoorie would devolve upon the successors

64

under Hindu Law and are divisible amongst the family

members.

95. In the light of the above conclusion, the judgment and order

dated 19.11.2010 is hereby set aside and the appeal is allowed

in part. A preliminary decree of partition be drawn in

accordance with the shares described above.

96. The appeal succeeds in part, as above, with no order as to

costs.

……………………………………J.

[Pankaj Mithal]

……………………………………J.

[S.V.N. Bhatti]

New Delhi;

MAY 27, 2026