REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5740-5741 OF 2015

TRIJUGI NARAIN (DEAD) THROUGH

LEGAL REPRESENTATIVES AND OTHERS …..APPELLANT(S)

VERSUS

SANKOO (DEAD) THROUGH LEGAL

REPRESENTATIVES AND OTHERS …..RESPONDENT(S)

J U D G M E N T

SANJIV KHANNA, J.

These civil appeals arise out of common judgment and

decree dated 12

th

September 2008 passed by the High Court of

Judicature at Allahabad in Second Appeal No. 1930 of 1983

{Chandra Nath Kala (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 No.

16 (Old Plot No. 9), Chaukhandi Kydganj, Allahabad – Nazul Plot

Civil Appeal Nos. 5740-5741 of 2015 Page 1 of 40

(‘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 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 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 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 Nath Singh had died on 13

th

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

Civil Appeal Nos. 5740-5741 of 2015 Page 2 of 40

Hindu family, had sold the property vide registered sale deed

dated 18

th

November 1968 to Trijugi 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 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 6

th

June 1969

of the property in favour of Chandra Nath Kala, which

application for amendment claiming title based on the sale

deed was allowed by the trial court. However, this order

allowing the amendment was set aside by the High Court vide

order dated 10

th

December 1971.

(e)Chandra Nath Kala had then on 7

th

March 1972 instituted

Original Suit No. 64 of 1972 for declaration and injunction

against Trijugi Narain and Surendra Nath, impleading Sankoo

as the third defendant predicating his right on the sale deed

dated 6

th

June 1969 executed in his favour by Rani Tej Kumari.

Sankoo admitted the claim of Chandra Nath Kala, while Trijugi

Narain and Surendra Nath had filed written statement, inter

alia, stating that Brij Nath Singh had no right to execute the will

Civil Appeal Nos. 5740-5741 of 2015 Page 3 of 40

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 18

th

November 1968 in favour of Trijugi Narain

and Surendra Nath.

4.The trial court dismissed the two suits by separate judgments,

both dated 25

th

March 1983, deciding several issues reference to

which is not required in view of the limited challenge raised by the

appellants, 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 6

th

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 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

decree in Suit No. 194 of 1968 was dismissed by the Additional

District Judge, Allahabad by judgment dated 25

th

August 1983. By

a separate judgment of the same date, Civil Appeal No. 517 of

1983 preferred against the judgment and decree in Suit No. 64 of

Civil Appeal Nos. 5740-5741 of 2015 Page 4 of 40

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 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 12

th

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 done vide will dated 11

th

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 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

Civil Appeal Nos. 5740-5741 of 2015 Page 5 of 40

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 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 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 Income

Tax, Bombay

1

, 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 those persons who acquire by birth an interest in

the coparcenary property. Succession in coparcenary property is

1

(1976) 3 SCC 142

Civil Appeal Nos. 5740-5741 of 2015 Page 6 of 40

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 father subject to limits/conditions, and by a

sole surviving coparcener in some circumstances (see Mulla

Hindu Law 22

nd

Edition, 2016 at page 397, § 253 – ‘Who may

alienate coparcenary property’).

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 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 17

th

June 1956, any property inherited by an heir vide

intestate succession in the event of death occurring after 17

th

June

Civil Appeal Nos. 5740-5741 of 2015 Page 7 of 40

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 Succession Act or the amendments

made in the Succession Act vide Act No. 39 of 2005 applicable

with effect from 9

th

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 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 property of the last holder to the

exclusion of his younger brothers. Succession can also be under

the rule of lineal male primogeniture 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 Others

2

in the following words:

2

AIR 1932 PC 216

Civil Appeal Nos. 5740-5741 of 2015 Page 8 of 40

“Impartibility is essentially a creature of custom. In the

case of 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

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 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 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 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,

including Thakore Shri Vinayasinhji (Dead) By LRs. v. Kumar

Shri Natwarsinhji and Others

3

, 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 the custom of impartibility…”

3

(1988) Supp. SCC 133

Civil Appeal Nos. 5740-5741 of 2015 Page 9 of 40

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 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 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

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:

4

Oxford University Press, 1920. Reprinted in 1978 by M.N. Publishers, New Delhi

Civil Appeal Nos. 5740-5741 of 2015 Page 10 of 40

“...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 Another

5

had observed:

“It would appear that invariably the rule of lineal male

primogeniture coupled with the custom of adopting a

son prevailed in the case of Hindu Rulers who

composed of the bulk of the body.”

In Baboo Gunesh Dutt Singh v. Maharaja Moheshur

Singh

6

, 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. 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. 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 Others

7

reference 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:

5

(1971) 1 SCC 85

6

(1854-7) 6 MIA 164: 1 Sar PCJ 521

7

(1994) Supp 1 SCC 734

Civil Appeal Nos. 5740-5741 of 2015 Page 11 of 40

“65. Though impartibility and primogeniture, in relation

to zamindari estates or other impartible estates are to

be established by 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 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 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 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. In short, the right or interest of sons or other members

of the coparcenary was inconsistent with sovereignty as a

Civil Appeal Nos. 5740-5741 of 2015 Page 12 of 40

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 20

th

November 1968 with 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, 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 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.”

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 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,

Civil Appeal Nos. 5740-5741 of 2015 Page 13 of 40

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.

17.The Privy Council in Venkata Surya Mahipati Rama Krishna

Rao Bahadur v. Court of Wards and Others

8

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 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

Others

9

; Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj

Pratap Deo and Others

10

; Pratap Singh (supra) and other cases.

18.In Advocate General of Bombay v. Amerchund

11

, 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 absolute sovereign, who

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

Civil Appeal Nos. 5740-5741 of 2015 Page 14 of 40

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 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

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 Jethsurbhai

12

in the following

words:

“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 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 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

12

(1968) 9 GLR 609

Civil Appeal Nos. 5740-5741 of 2015 Page 15 of 40

have to be taken to force, for the Chief as the

sovereign Ruler would not be subject to municipal law

and his 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

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 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 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

Others

13

. This aspect was further elucidated by N.D. Ojha, J. in

Revathinnal Balagopala Varma (supra) (see paragraph 30).

13

(1993) Supp 1 SCC 233

Civil Appeal Nos. 5740-5741 of 2015 Page 16 of 40

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 15

th

August 1947 on

independence in 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 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 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

14

Orient Longman 1985, 107.

Civil Appeal Nos. 5740-5741 of 2015 Page 17 of 40

impact of transfer of political power. Accordingly, instruments of

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

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 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

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.

Civil Appeal Nos. 5740-5741 of 2015 Page 18 of 40

23.The principles followed by the Government of India in this

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 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, 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…”

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 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 to

benefits in terms of concessions which were granted under the

merger agreements which had postulated as under:

Civil Appeal Nos. 5740-5741 of 2015 Page 19 of 40

“ xx xx xx

Article III: The Ruler of each of the States specified in the

Schedule to this agreement (hereinafter referred to as “the

Covenanting States”) hereby cedes to the Government of

India, 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.

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 specified against that

Covenanting State in the Schedule to this Agreement.

(2) The said amount is intended to cover all the expenses

of the 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 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 outside the territories of that State,

immediately before the 15

th

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.

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.

(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 officer to be nominated by

Civil Appeal Nos. 5740-5741 of 2015 Page 20 of 40

the Government of India, and the decision of that officer

shall be final and binding on all parties concerned.

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.

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 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 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.

Civil Appeal Nos. 5740-5741 of 2015 Page 21 of 40

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 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:

“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 said

properties to be retained by the Ruler without being

surrendered to the Government of India. It did not,

however, 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 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

18.05.51 (Ex. A-4).”

Civil Appeal Nos. 5740-5741 of 2015 Page 22 of 40

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:

“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 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

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 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...”

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.

Civil Appeal Nos. 5740-5741 of 2015 Page 23 of 40

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 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 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 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 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 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 appellant could be drawn

and the findings of the courts below reversed. We are

dealing with an appeal and as has been pointed out by

this Court in Thakur Sukhpal Singh v. Thakur Kalyan

Civil Appeal Nos. 5740-5741 of 2015 Page 24 of 40

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 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 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 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 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 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

15

AIR 1964 SC 118

Civil Appeal Nos. 5740-5741 of 2015 Page 25 of 40

merger was set at rest by this Court in Pratap Singh (supra)

wherein 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:

“71. Section 5 of the Hindu Succession Act, 1956

(Central Act 30 of 1956) states as follows:

“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)* * *”

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 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:

‘any estate which descends to a single heir by

the terms of any covenant or agreement entered

Civil Appeal Nos. 5740-5741 of 2015 Page 26 of 40

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;’

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. 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 the agreements and the

covenants which the Government of India has

solemnly entered into with those people and on

the strength 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.”

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

22

nd

December 1954 and clause (iv) thereof reads as under:

“(iv) Any estate which descends to a single heir by a

customary rule of succession or by the terms of any

grant or enactment”

Civil Appeal Nos. 5740-5741 of 2015 Page 27 of 40

However, the Bill was referred to a Joint Committee of

Parliament, which in its Report

16

observed as under:

“The Joint Committee is further of opinion that the

exception in 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 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 post enforcement of

the Succession Act with effect from 17

th

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

Others

17

in which it is observed that law of primogeniture is no

longer applicable 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

16

Gazette of India Extraordinary dated 28.9.1955 Part II Sec.2, page 365, ’8

17

(2008) 15 SCC 517

Civil Appeal Nos. 5740-5741 of 2015 Page 28 of 40

South Africa. It may be relevant to state that by this decision, the

matter and issue was referred to a larger Bench, which reference

was decided vide judgment dated 23

rd

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 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 & Another

19

, has lucidly, in a tabulated form, 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) would

be the absolute owner of the

State and its properties. None

else would have any interest or

share in his property.

The holder of a Zamindari, as

distinct from the Ruler of an Indian

State, may hold it as an impartible

estate. If it is ancestral, he holds it

on behalf of the family and

although 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 understood by the series

of decisions in that regard.

2.Primogeniture would be

presumed to apply as a Rule

for succession.

Primogeniture would not, repeat

not, be Presumed to apply, but will

have to be proved as a Custom.

18

(2015) 1 SCC 417

19

ILR 2011 (1) Del 704

Civil Appeal Nos. 5740-5741 of 2015 Page 29 of 40

3.He would have been signatory

to a Covenant/agreement

ceding his State first

(15.8.1947) to the Dominion of

India on three subjects,

external affairs, communication

& defence. And thereafter – by

the Covenant or the Merger

Agreement ceding the

administration of his State to

the Union or other Government

prior to 26.01.1950.

He would not have been a party to

any of the items 3 to 5 in the first

column. This establishes the

difference in status between a

former Ruler on the one side and

a Zamindari on the other. This in

turn, makes all the difference to

the applicable law.

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.

----

5.He would be receiving an

annual privy purse for the

amount fixed by the Ministry of

States.

----

6.On his death, succession

(properties) would be covered

by the first part of the

exception under Section 5(ii)

and therefore not affected by

the 1956 Act. If he dies after

17.6.1956, it would make no

difference to the succession

which will still be by

primogeniture.

If he dies after 17.6.1956,

succession to his estate shall not

be by primogeniture. It will be as

per Section 8 of Hindu Succession

Act.

7.He would be De-recognised as

a Ruler by the 26

th

Amendment.

Since he was never recognised as

a Ruler, there is no question of

‘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

Civil Appeal Nos. 5740-5741 of 2015 Page 30 of 40

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 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 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 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

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

Civil Appeal Nos. 5740-5741 of 2015 Page 31 of 40

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 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:

“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 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 provides that, in the case

of any person dying after the commencement of the

Act, succession to him will be governed 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 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 heir by the terms of any covenant or

Civil Appeal Nos. 5740-5741 of 2015 Page 32 of 40

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 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 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, 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 Others

20

had referred to clause

(22) of Article 366 of the Constitution to observe that it was 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 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

20

(1969) 3 SCC 150

Civil Appeal Nos. 5740-5741 of 2015 Page 33 of 40

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 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. 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 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

inconsistent with the Constitution. However, the personal law of

succession in view of Article XIV of the Covenant was protected

Civil Appeal Nos. 5740-5741 of 2015 Page 34 of 40

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 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”.

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

with the signing of the merger agreement.

39.In Thakore Shri Vinayasinhji (supra), Pratap Singh (supra),

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 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

Civil Appeal Nos. 5740-5741 of 2015 Page 35 of 40

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 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 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 (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 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

Civil Appeal Nos. 5740-5741 of 2015 Page 36 of 40

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.

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 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 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

Civil Appeal Nos. 5740-5741 of 2015 Page 37 of 40

in the British territory, i.e. territory outside the Home State. One

such property known as 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 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 property in

Delhi called Kapurthala House which was purchased by Jagatjit

Singh, the then Maharaja of Kapurthala by a registered sale deed

19

th

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 command of the Maharaja in 1940

purportedly declaring Kapurthala House as his personal and

private property. Reference was made to aide-memoire dated 1

st

March 1937 by Lieutenant Colonel Fisher declaring the Kapurthala

21

(2004) 11 SCC 425.

Civil Appeal Nos. 5740-5741 of 2015 Page 38 of 40

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 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. On the other hand, inheritance

of the property post the death of 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 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 evidence and material to

dispel the presumption.

Civil Appeal Nos. 5740-5741 of 2015 Page 39 of 40

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.

................................J.

(INDU MALHOTRA)

...............................J.

(SANJIV KHANNA)

NEW DELHI;

DECEMBER 10, 2019.

Civil Appeal Nos. 5740-5741 of 2015 Page 40 of 40