Himachal Pradesh High Court
Smt. Uma Devi And Ors. vs Maharaja Sir Partap Singh And Ors. on 7 June, 1989
Equivalent citations: AIR1990HP62
JUDGMENT V.K. Mehrotra, J.
1. Nabha was a Princely State in pre-independence India. It was one of the three Phulkian States. The other two were Patiala and Jind.
2. In matter of succession to Chiefship, the Phulkian families normally followed the rule of primogeniture. This was true also of the Ruling family of Nabha. The Chiefship went to the eldest son. Provision was made for the younger sons for their maintenance by grant of Jagir, land or purse.
3. When the British became the paramount power in India, the effective control in respect of the various rights of the ruling Princes passed into their hands. They subjected the ruling chiefs to various restrictions. One such restriction was about purchase of property outside the territory of their own State. Office Orders were issued from time to time by the Political Department. One such office order (No. XXXV -- found in the compilation of Rules and Office Orders of Political Department of Punjab Government Edition 1908) said that :
"The Government of India in 1871 pointed out that the difficulties and inconveniences arising from the possession by native foreign chiefs of lands within British Territories are very serious ....... it has been ruled by the Government of India that grants or sales of land in British territory should not be made to any native chief who is not a subject of the British Government.
The policy of Government of India is, therefore, to discourage the acquisition, whether direct or indirect, by Sovereign or Feudatory princes of any lands in British Territory however and from whomever acquired........
The wishes of the Supreme Government in this respect were, in 1892, communicated to all the native States in the Punjab to Patiala, Bhawalpur, Jind & Nabha direct and to others through Political Agents.
Again in 1903, the Government of India pointed out that they are strongly opposed on grounds of principle to the acquisition of immovable property in British India by ruling chiefs...."
4. His Highness Ripudaman Singh was the Ruling Chief of Nabha State in the early twenties of this century. His ruling powers were withdrawn by the British Government in the year 1923, he was formally deposed from the Gaddi in the year 1928 and was exiled to Kodaikanal (in Tamil Nadu) where he resided till the year 1942 when he died. Her Highness Sarojini Devi, wife of Ripudaman Singh, and their children resided in England from 1934 to 1944. She returned to India with her eldest son Pratap Singh in the year 1944 for the latter was to receive administrative training as he was to be made the Ruler of Nabha State. The entire family came back to India in the year 1945. Apart from Pratap Singh, Ripudaman Singh had two more sons, Kharagh Singh and Gurbaksh Singh. He also had two daughters Kamla Devi and Bimla Devi. Gurbaksh Singh died in November 1963. He left behind his widow Chandra Prabha Kumari, two minor daughters Krishna Kumari, Tuhina Kumari and a minor son Vivek Singh.
5. "Sterling Castle" is a property situate at Simla. It was owned by one Col. S. Appaji Rao Sitole of Gwalior. It was purchased by Ripudaman Singh in the name of his friend, Dr. Tehl Singh through a registered sale deed executed on December 21, 1921. A deed of relinquishment was executed by Dr Tehl Singh on April 30, 1952. By it, Dr. Tehl Singh has repudiated his title and conferred it upon the three sons and the widow of late Maharaja Ripudaman Singh. The dispute in the present case relates to this property.
6. The dispute began in the year 1957. Pratap Singh claimed absolute right in his favour in the property. He started denying the title of the other heirs of late Maharaja Ripudaman Singh. Gurbaksh Singh and Kharagh Singh wrote to the Municipal Committee, Simla, for mutation of their, names against the property. Pratap Singh raised an objection to it. Mutation was, therefore, not effected in favour of his younger brothers. Notices were then given by Gurbaksh Singh and Kharagh Singh to the Municipal Committee, Simla, and the sub-registrar, Simla as well as to their eldest brother, Pratap Singh, saying that they also had a share in the property and that Pratap Singh could not deal with it as its exclusive owner. On March 31, 1961 the two younger brothers made an application to the Central Government under Section 86 read with Section 87-B of the Code of Civil Procedure seeking permission to file a suit against Pratap Singh with regard to "Sterling Castle". The Central Government refused to give the permission in July 1961. On January 30, 1962, a sale deed was executed in respect of "Sterling Castle" by Pratap Singh in favour of "the save the Children Fund", a society incorporated in the U. K. through its Administrator Lt. Col. L. G. Young for a sum of Rs. 50,000/-.
7. Suit No. 1 of 1965 was instituted by Maharani Sarojini Devi, her son Kharagh Singh and the minor children of Gurbaksh Singh as plaintiffs impleading therein "the Save the Children Fund" Society and its Administrator as defendants Nos. 1 and 2 as well as Kunwarani Chandra Prabha Kuari (widow of Gurbaksh Singh) as the third defendant. The case set up by them is that they had share in "Sterling Castle" as heirs of late Maharaja Ripudaman Singh who had purchased the property benami in the name of Dr. Tehl Singh (as Benamidar) from his personal funds and, as such, Pratap Singh was not the absolute owner of the property and the alienation made by him through the sale deed dated January 30, 1962, was not binding upon the plaintiffs and the third defendant. The relief sought in the plaint was that a decree for possession by partition of the respective shares of the plaintiffs be granted and, in the alternative, a decree for possession be granted by cancelling the sale of the property effected by Pratap Singh. Besides, the plaintiffs he also granted a decree for Rs. 5,000/- as mesne profits for a period of three years commencing from February 1, 1962, to the date of the suit as well as mesne profits to be assessed by the court for the period between the date of the suit till restoration of possession of the share of the plaintiffs in the property.
8. While the suit was pending, the first two defendants sold the property to the present appellants. These appellants were impleaded as defendants Nos. 4 to 8 in the k suit. They purchased the property for a sum of Rs. 1,40,000/- on May 1, 1970. The suit was initially filed in the Court of Senior Sub-Judge, Simla (then in Punjab State). After the merger of the area in Himachal Pradesh, original jurisdiction was conferred upon the Delhi High Court. Later, after the formation of the Himachal High Court, the suit came to be tried by it in its original jurisdiction. The suit has been decreed by a learned single Judge (D. B. Lal, J.) by judgment dated October 15, 1973 (reported in ILR(1973) Him Pra 1244). The learned Judge has granted a preliminary decree for partition of the property and recovery of mesne profits in favour of the plaintiffs and the third defendant. The decree has been assailed in this Regular First Appeal by the subsequently added defendants of whom defendant No. 4 Hem Raj, has died during the pendency of the appeal in this Court.
9. The defendants (other than the third defendant in whose favour also the suit was filed) took various defences. They said that Maharaja Pratap Singh was a necessary party; the suit suffered from the defect of his non-joinder; that the Central Government having refused permission to file a civil suit under Section 86 read with Section 87-B, CPC, no suit could be filed even against the assignees of Pratap Singh; that the suit was not maintainable for partial partition as the entire property left by late Ripudaman Singh was, not brought into the "hotch-potch"; that Ripudaman Singh died in 1942 and Pratap Singh having remained in possession of the property as full owner for a period of twenty years before he sold it to the two defendants, the plaintiffs had lost title in it by lapse of time; that the third defendant having not been impleaded as a plaintiff, the suit was maintainable; that the ownership and possession of "Sterling Castle" having all along been of Maharaja Pratap Singh and the property having been cleared as a private property of the Ruler when Pratap Singh executed a merger agreement in favour of the Central Government, Pratap Singh became the exclusive owner of the property; Dr. Tehl Singh was neither the owner nor was he ever in possession of "Sterling Castle" and that it was the Nabha State and Pratap Singh, being absolute owner and in possession of all the properties pertaining to the State, was the absolute owner of the suit property as the rule of primogeniture applies to all the properties of late Ripudaman Singh, that there was no joint Hindu family with Pratap Singh as one of the members; and that the alienation made by Pratap Singh was for the benefit of the State as the property was earning no income. The present appellants further pleaded that they were bona fide purchasers from the ostensible owner, and without notice, so that their title could not be disturbed.
10. As many as thirteen Issues were framed in the suit. Of these, Issues Nos. (1), (3), (7) and (11) were dealt with by the learned single Judge together. These issues are :--
"(1) Whether the property in dispute was purchased by Maharaja Ripudaman Singh benami in the name of Dr. Tehl Singh on December 21, 1921?
(3) Whether the property in dispute was joint Hindu family property of Maharaja Pratap Singh, Maharaj Kumar Kharagh Singh and Maharaj Kumar Gurbaksh Singh?
(7) Whether the rule of primogeniture shall not be applicable in respect of the property in dispute which, according to the plaintiffs, is the joint Hindu family property of Maharaja Sir Pratap Singh?
(11) Whether the rule of primogeniture as applicable to the succession in the ruling family of Nabha made his Highness Maharaja Sir Pratap Singh, by virtue of his having become the Maharaja of Nabha State, absolute owner of properties of every description that came in his possession, including the property in dispute?
11. The conclusion has been recorded by the learned Judge in these words :--
"It is, therefore, proved that the disputed property was purchased by Maharaja Ripudaman Singh 'Benami' in the name of Dr. Tehl Singh on December 21, 1921, and that the property in dispute became joint Hindu family property in the hands of the plaintiffs as well as Maharaja Pratap Singh, The rule of primogeniture never applied to the property in dispute. That rule in fact applied only to State property. H. H. Pratap Singh never became absolute owner merely because he was declared Ruler of Nabha State. As such all these issues are decided in favour of the plaintiffs."
12. The conclusion aforesaid, according to the learned Judge, was founded upon the evidence -- both oral and documentary -- in the suit and resulted from the true legal position. The learned Judge has referred to the evidence at some length and has also relied upon some judicial pronouncements. We shall go into them a little later. At the outset, however, we may have a look at the history and customs governing the Ruling Chiefs of Nabha.
13. This would require reference to the extracts from various books documents which were brought to our notice by Shri Chhabil Dass who has argued the case on behalf of the appellants. Shri Hingorani, learned counsel for the plaintiffs, stated clearly before us on November 3, 1988, that the extracts of the various books which have been cited by Shri Chhabil Dass could be looked into by the Court for this purpose. He, however, added that the customs upon which reliance was being placed on behalf of the defendants was neither pleaded nor proved in accordance with law.
14. The Ruling families of the Phulkian States descended from one Phul. In the year 1627, Phul had founded and given his name to the village which was an important town in Nabha State. The Rulers of Phulkian States were Malwa Sikhs. The ancestors of these Malwa Chiefs were Hindu peasants, mostly of Rajput extraction. In the beginning, of the Eighteenth century, these Chiefs abandoned Hinduism for Sikhism. They, however, gene rally continued to follow the Ordinances of Manu and Shastras, like other Hindus. In matter of succession to chiefship, the Phulkian families normally followed the rule of primogeniture. This is found mentioned in various books.
15. In 'the Law of Inheritance to Chief-ship' (as observed by the Sikhs Previous to the Annexation of the Punjab by Lepel Griffin (1869) it has been noticed that;
"the Malwa Chiefs have passed through several distinct periods of development. First, the mere cultivators of the lands on which, as immigrants, they had settled; then, the owners of those same lands. Next came the period of conflict with the Muhammadan power, during which the Chiefships grew up gradually and naturally, followed by the period of tranquillity which was the consequence of their claiming British protection.......
The ordinary rule of succession to Sikh Chiefships was equal division among the sons, and primogeniture has only prevailed in the three principal branches of the Phulkian family, namely, Pattiala, Nabha and Jhind The Punjab Government was desirous of substituting, if possible, the law of primogeniture for the various usages which regulated hereditary succession to conquest and ordinary jagirs held in perpetuity. The Governor General (letter 12th May, 1860) agreed with the Punjab Government that primogeniture should be encouraged, but directed that no alteration in the rule of inheritance should be made in a family unless with the consent of its head and of the Chief members interested "
16. The preface to the book mentions that:
"The authorities for what has been advanced in this treatise are the family records of the chiefs concerned, and the statements of their confidential agents, the political records of the Delhi Residency and the Ambala Agency from the year 1808; and disputed cases decided by many political officers, including Sir David Ochterlony, Sir Charles Melcalfe, Captain Birch, Captain Murray, Sir George Clerk, Captain Ross, Captain Wade, Sir Henry Lawrence, and Major Broadfoot."
17. Lieut. Colonel Steinbach in his book The Punjaub. Being a Brief Account of the Country of the Sikhs' Second Edition (1846) has noticed that :
"Amongst the Malwa Singhs, the rights of primogeniture in the males are respected, and jageers, or grants of land, are assigned for the maintenance of younger sons, by which the many inconveniences, noticed in the practice, or rule established amongst the Manjhee families, are obviated."
18. Indra Krishen submitted a Thesis for the Degree of Doctor of Philosophy in the University of the Punjab, Lahore. The subject was 'An Historical Interpretation of the Correspondence of Sir George Russel Clerk, Political Agent, Ambala and Ludhiana (1831 -43)'. He based the Thesis on the correspondence of Clerk, a British Political Agent who, during the first half of the 19th Century, had materially helped in shaping the policy of the Company's Government towards the Cis and the Trans Sutlej regions. In the introduction to the book it has been mentioned that the law of succession amongst Cis-Sutlej Chiefs has been traced in Chapter II. In this Chapter it has been stated that:
"The customary practice of succession, among the Malwa Chiefships was equal division of property among the sons. This was surely a reproduction of the Hindu Law of succession to private properly to which all sons have an equal claim. It should here be noted that primogeniture i.e. the rule by which the entire real estate of the intestate passed to the eldest son to the exclusion of the younger brothers which prevailed among the Medieval Aristocracy of several European countries, was practically unknown among the Sikhs, except in the case of succession to rulerships of Patiala, Nabha and Jind.......
Clerk even in his time felt the necessity of inviting the opinion of the rulers of Patiala, Kaithal, Nabha and Bazidpur concerning the dispute about the Jind succession.......
They unequivocally declared that both in the Phulkian and the Bhaikian Houses, the uniform practice was that the eldest son always succeeded to the whole estate with the exceptions of small portions set apart for the maintenance of the younger children......"
19. In his book "the Protected Princes of India" (1894) Silliam Lee Warner has mentioned in Article 112 that the British Government had repeatedly stepped in with authority to save the Native States from the evil consequences of dismemberment. This intervention was held justified by law as by public policy. A Hindu King, according to what is noticed in this Article, being a hallowed person, succession to his kingdom was governed by a set of rules which differed from those affecting his property, and that arose out of the special nature of the royal estate as individual and inalienable.
20. On the basis of the recitals aforesaid in the various books there seems to be little doubt that the rule of primogeniture was followed in Nabha in regard to succession to Chiefship or Gaddi.
21. Maharaj Kumar Kharagh Singh, who is plaintiff No. 2 in the suit, was examined as PW 1. The statement made by him is to the effect that "there is a rule of primogeniture in our family but that applies only to the Gaddi of Nabha." Also, that as far as the personal property of the Ruler is concerned it does not pass by the rule of primogeniture. Further. that the personal property of their father, late Ripudaman Singh, was also being managed by the officers of the State from the year 1928 till 1942.
22. The fact that the rule of primogeniture applied to the succession to the Chiefship of the Gaddi in the Nabha State is, thus, not in doubt. The plaintiffs have not taken a plea to the contrary either.
23. The statement which was made by Maharani Sarojini Devi as CPW 1 is that her husband was a sovereign; ruler which he had become on the death of his father in about 1910 or 1911. Also, that her eldest son Maharaja Pratap Singh had assumed ruling power of the State in the year 1941.
24. As far back as the year 1855, the Privy Council stated the rule relating to sovereign or semi or subordinate sovereign rulers and the impartible nature of their estates in Baboo Gunesh Dutt v. Moheshwar Singh, (1855) 6 Moo Ind App 164 thus:
"Generally under Hindu 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..... the general rule is otherwise and must be so. It is sovereignty......
a subordinate sovereignty no doubt but still a limited sovereignty, which in its very nature, excludes the idea of division in the sense in which that term is used in the present case."
25. Thereafter, the rule was restated by the Privy Council in Sahdeo Narain Deo v. Kusum Kumari, AIR 1923 PC 21 in these words :
"......It is true that an estate only becomes impartible by custom, and that the custom has in each case to be proved. But it is a custom which is usually found to exist where the estate belongs to a king or independent Chief, or even a semidependent Chief of sufficient importance."
26. In Martand Rao v. Malhar Rao, AIR 1928 PC 10, their Lordships of the Privy Council observed that the possessions of sovereign or semi-sovereign chief were necessarily impartible. Also, that "if an impartible estate existed as such before the advent of British rule,.....(it will) be presumed to continue with its previous incidents of impartibi-lity and succession by special custom."
27. One Amrit Kunwar, a sister of Maharaja of Nabha, was married to Raja of Kalsia State. Nabha and Kalsia States were formerly part of Cis-Sutlej States. Amrit Kunwar had been living at Dehradun in British India with her sons and daughters, who were being educated there. In one year of assessment (in the accounting year relatable thereto) she had received a sum of Rs. 14,744/- from her husband who was, admittedly, not a resident in the British India. The question was whether the amount could be treated to be income accruing to Amrit Kunwar in British India for purposes of Section 4(2) of the Income-tax Act, 1922 which said that remittances received by a wife resident in British India were to be deemed to be income accruing to her in British India. A Full Bench of the Allahabad High Court dealt with the matter in Rani Amrit Kunwar v. Commr. of Income-tax, Central and United Provinces, Lucknow, AIR 1946 All 306. While holding that the allowance received by the Rani from the Kalsia State during the accounting year should be deemed to be her income accruing in British India, one of the observations that was made in the case (by Braund J.) was that:
".....The Rs. 14,744/- received by her in the accounting year must, I think, be taken to have been paid to the Rani out of her husband's income, since it has not been and cannot be suggested that there is any distinction between the personal income of the Raja and the revenues of his State which are allocated under the annual State Budget."
Relying upon these observations it was urged by Shri Chhabil Dass that purchase of "Sterling Castle" by Ripudaman Singh had necessarily to be treated as purchase by the State of Nabha, Further, the existence of the rule of primogeniture ruled out co-existence of the rights of co-parceners under the ordinary Hindu law. These rights stood eclipsed. Our attention was invited to some observations contained in a decision of the Gujarat High Court in D. S. Meramwala v. Ba Shri Amarba Jethsurbhai, (1968) 9 Guj LR 609.
28. The Rulers of Indian States could possess private property as distinguished from the property of the State. The devolution to the private property was to be governed by personal law applicable to the Rulers. In Kunwar Shri Vir Rajendra Singh v. Union of India, AIR 1970 SC 1946 it was ruled by a Constitution Bench of the Court that the recognition of the Ruler by the President of India was recognition of the right to succeed to the Gaddi of the Ruler. It is one of personal status. The right to private properties of the last Ruler depends upon the personal law of succession to the said private properties.
29. Ripudaman Singh had purchased a property named "Ilahi Manzil" at Dehradun in U. P. benami in the name of Maharani Sarojini Devi. There was litigation between Pratap Singh and his wife Urmila Devi on the one side and Sarojini Devi and her two daughters, Kamla Devi and Bimla Devi, as well as the two sons Kharagh Singh and Gurbaksh Singh about it in the Dehradun Courts. The case went up in appeal before the Allahabad High Court. It was decided by a Division Bench of that Court by its judgment dated December 18, 1979. The High Court upheld the view of the trial Court that the property in question was joint family property in which the heirs of Ripudaman Singh (also known as .Gurcharan Singh) had interest. We are informed that the decision of the Allahabad High Court is pending in appeal before the Supreme Court.
30. One of the submissions raised in that case was that the rights of a ruling chief, including rights in respect of properties owned by the Ruler, devolved after his death upon his eldest son as the rule of primogeniture was applicable in the State. The submission was not accepted and it was held that there was no rule that a Ruler of an Indian State could not possess private property. Also, that in matters of inheritance, the personal or private property belonging to the Ruling Family was governed by the personal law which, in the case of the Ruling Family of Nabha, was Mitakshara School of Hindu Law. The Bench took the view that Sikhs were a sect of Hindus. Sikhs of the Ruling Family of Nabha were governed by Mitakshara School of Hindu Law. In coming to this conclusion the Allahabad High Court placed reliance upon the decision of the Privy Council in the case of Rani Bhagwan Kuer v. J. C. Bose (1904) ILR 31 Cal 11, noticed with approval by the Supreme Court in the Commr. of Wealth-tax, West Bengal v. Smt. Champa Kumari Singhi, AIR 1972 SC 2119. It also placed reliance upon the observations made by the Supreme Court in Shashtri Yagnapurushdasji v. Muldas Bhundardas Vaishya, AIR 1966 SC 1119. Speaking through Gajendragadkar, C.J. the Supreme Court had observed (in paragraph 37 of the report) in this case that:
""The development of Hindu religion and philosophy shows that..... saints and religious, reformers attempted to remove..... elements of corruption and superstition and that led to the formation of different sects. Buddha started Buddhism; ......Guru Nanak inspired Sikhism;...... and as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered into its most .......dynamic form......
The Constitution-makers were fully conscious of this broad and comprehensive character of Hindu religion...... Explanation II to Article 25 has made it clear that in Sub-section (b) of Clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion......"
31. The Court then noticed (in paragraph 42 of the judgment) that :
"Consistently with this constitutional provision, the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act 1956; and the Hindu Adoptions and Maintenance Act, 1956 have extended the application of these Acts to all persons who can be regarded as hindus in this broad and comprehensive sense. Section 2 of the Hindu Marrage Act, for instance, provides that this Act applies:
(a).......
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c)...........
32. A suit was filed by Maharaja Pratap Singh for possession of House No. 34, Alipur Road, Civil Lines, Delhi, against his mother, two brothers and the two sisters. This property was mentioned as the private property of his Highness, the Maharaja of Nabha, in the inventory filed under Article XII of the Covenant by which eight princely states had merged to form a States Union called Patiala and East Punjab States Union after the accession of these States to the Indian Union in 1948. The suit was tried by a learned single judge of the Delhi High Court. It was decreed on the finding that the house was the property of the Nabha State and was not the personal property of Maharaja Ripudaman Singh. The decree was set aside by a Division Bench of the Delhi High Court in R.F.A. (C.S.) No. 6 of 1977 by its judgment of May 23, 1980. The view taken was that the property in dispute had been purchased by Maharaja Ripudaman Singh benami in the name of one Gurnarain Singh. It was his personal property. As such, it would devolve upon the heirs of Ripudaman Singh in accordance with the personal law, namely, Mitakshara School of Hindu Law. Reliance in this judgment was also placed upon the Division Bench judgment noticed above, relating to the Dehradun property. That judgment was rendered by the Allahabad High Court in First Appeal Nos. 75 of 1964 and 293 of 1966. A reference is also contained in the Delhi judgment to the present litigation and to the conclusions arrived at by D. B. Lal, J., in the suit.
33. The judgments of the Allahabad High Court and the Delhi High Court, which are inter-parte in so far as they relate to the members of the Nabha Ruling Family, clearly recognize the fact that Maharaja Ripudaman Singh owned personal property, as distinguished from the property belonging to the State of Nabha. Also, that succession to his personal property was governed by Mitakshara School of Hind Law.
34. What is of essence, therefore, is the question whether the evidence on record established that "Sterling Castle" was personal property of Maharaja Ripudaman Singh? If it was, it would devolve upon all the heirs of Ripudaman Singh upon his demise in accordance with the provisions of Hindu Law.
35. The question whether a particular property was the personal property of the Ruler or not is essentially one of fact depending upon the evidence brought on the record of a suit? In the Allahabad case the Bench deciding it went into the evidence and came to the conclusion that the property was the personal property of Gurcharan Singh (Ripudaman Singh), which had been sold in execution of a decree obtained by Municipal Board, Dehradun. One Kanshi Ram had purchased it in auction sale which was confirmed before the death of Gurcharan Singh. When Kanshi Ram filed an application before the trial Court, bringing to its notice that possession of the property had yet not been delivered to him, Pratap Singh entered into a compromise with him and agreed to purchase it for a sum of Rs. 82,000, - benami in the name of his wife. The Bench found that a part of the total sale consideration for which Pratap Singh purchased the property in the name of his wife flowed from joint family assets. The conclusion of the Bench was recorded in the following words:--
"......As there was joint family nucleus from which the property could be purchased and as it has been clearly established that a part of the consideration flowed from joint family assets, the presumption would be that the property was purchased by Pratap Singh in the name of his wife from the joint family funds and was as such joint family property......"
In the Delhi case, again, the finding recorded by the Division Bench was that the house in dispute was the personal property of Maharaja Ripudaman Singh and upon his death it devolved upon Pratap Singh and his brothers and that the Maharani, being a widow, got rights under the Hindu Women's Right to Property Act, 1937.
36. In this suit the learned single Judge has concluded that there was dependable evidence, both factual and circumstantial, to prove that the "Sterling Castle" was purchased out of the Sarafa Khas of Maharaja Ripudaman Singh and was always treated as his private property. The property had been purchased benami in the name of Dr. Tehal Singh. It was the private property of Ripudaman Singh as distinguished from State property. After the death of Ripudaman Singh it became the joint Hindu family property and devolved upon all his heirs.
37. Before going into the evidence ourselves we would like to mention that the learned Judge, trying the suit, was of opinion that the defendants should have produced some entry from the State accounts so that the Court could have known as to who had really purchased the property. He felt that it was not difficult for the defendants to have procured (produced) such an entry if really the disputed property was purchased from the State fund. This, we feel, was not a correct approach to the question. As plaintiffs, it was incumbent upon the respondents to have established that the property had been purchased by Maharaja Ripudaman Singh from his personal funds. Then alone they could claim that it was his personal property which devolved upon all the heirs of Ripudaman Singh after his death. The learned single Judge, as it were, threw the burden upon the defendants of disproving a fact which the plaintiffs had to establish affirmatively in the first instance. To borrow the words of their Lordships of the Privy Council in Appala-swami v. Suryanarayanamurti, AIR 1947 PC 189 (at page 192):
".....Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact....."
38. The plea of the plaintiffs is that "Sterling Castle" was purchased "benami" in the name of Dr. Tehal Singh by Maharaja Ripudaman Singh of Nabha, through a registered sale deed (Ex. PW 6 A) on December 21, 1921. The fact that the purchase was benami in the name of Dr. Tehl Singh is not in dispute. The beneficial interest in the property vested in the real owner, for, it is settled that the benamidar holds the property on behalf of the real owner. As observed by the Privy Council in Ch. Gur Narayan v. Sheolal Singh, AIR 1918 PC 140, "benamidar has no beneficial interest in the property.......... that stands in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned, he is a mere trustee for him."
39. The fact to be found is whether the real owner was Maharaja Ripudaman Singh or the State of Nabha.
40. The case of the plaintiffs, as pleaded in the plaint, has been that Maharaja Ripudaman Singh used to draw a privy purse of Rs. 3,00,000 - for his personal needs. He had large personal funds and also inherited lot of funds from his father. As a Ruler, he used to receive various personal gifts. All these funds were kept by him separate from State funds. "Sterling Castle" was brought by him out of his personal funds.
41. The plea aforesaid was, naturally, to be established by the plaintiffs. And, that too, by cogent and reliable evidence. What has been put forward as evidence, in this respect, consists of oral evidence alone.
42. Maharajkumar Kharagh Singh, who is plaintiff No. 2, deposed in the case as a plaintiffs' witness. He said that "Sterling Castle" had been purchased by his father Maharaja Rjpudaman Singh for Rs. 3,00,000 from Shri S. Sathole. The sale deed of the property remained with his mother after the purchase of the property. The property was never the State property of the Nabha State. When questioned in the cross-examination on behalf of the first two defendants, he stated that he was born in the year 1924. Obviously, he was born about three years after the property was purchased. He could hardly have any personal knowledge about the fact whether the property had been purchased by his father out of his personal funds, He also stated, during the course of his cross-examintion, that he had not seen any document in which the property might have been shown in the ownership of Dr. Tehl Singh nor any record in which his father might have been shown Dr. Tehl Singh as the owner of the disputed property. Further, that he could not say whether his father paid any taxes for the property nor did he know if any amount was entered as income of his father with reference to this property, after 1923.
43. Kharagh Singh had admittedly gone away to England with his mother in the year 1928. He came back in the year 1945. The evidence of Kharagh Singh, in regard to the purchase of "Sterling Castle" by his father Ripudaman Singh from his personal funds, in so far as it purports to support the plea that it was purchased by Ripudaman Singh from his personal funds, is of no avail to the plaintiffs. Apart from the statement that the sale deed of the property remained with his mother, after its purchase by his father, the evidence of Kharagh Singh, does not refer to any document, relating to the purchase of "Sterling Castle", from which he could be said to have derived information about the purchase being made by Maharaja Ripudaman Singh out of his personal funds. The sale deed, admittedly, does not mention Maharaja Ripudaman Singh in any context.
44. Maharani Sarojini Devi, widow of Ripudaman Singh, was examined in the case CPW 1. She stated that her husband had purchased the property in about the year 1921 from Sardar Sitole of Gwalior for Rs. 3,00,000/-. The amount had. been paid in cash to Sardar Sitole by her husband in Nabha. She further stated that she was at Nabha at that time and it was she who brought the cash to give to Sardar Sitole. She has further stated that her husband used to draw Rs. 3,00,000/-per annum as "Sarfa Khas" (pocket money) and that the amount of Rs. 3,00,000/- was paid by her husband for "Sterling Castle" from his personal funds, unconnected with the State. She also says that the envelop in which the sale deed of "Sterling Castle" was received by her husband remained with her and this she gave to her son Kharagh Singh.
45. When questioned in cross-examination, Maharani Sarojini Devi stated that it was correct that "Sterling Castle" estate was never entered in the name of Ripudaman Singh at any time from the date of purchase till he died. She did not know in whose name the property stood in the Municipal record at Shimla nor did she know as to who had been paying the taxes in respect of the property. The statement which she made, when further questioned, was that she did not know if her husband maintained any accounts. She acknowledged that no account was maintained by her husband of "Sarfa Khas" nor was any entry about the payment of Rs. 3,00,000/- made in any account. She then stated that apart from the record produced in the Court, she was not in possession of any other record which could indicate the ownership of the property being in the name of her husband.
46. The statement aforesaid, we feel, is not enough to come to the conclusion that it was established affirmatively that the amount of Rs. 3,00,000/-, being the price of "Sterling Castle" paid to Shri Sitole, came out of the personal funds of late Maharaja Ripudaman Singh. The learned single Judge, we are afraid, was not right when he said that the fact that the sale deed had remained all along in the possession of Maharani Sarojini Devi together with the envelop (Ex. 6/B) in which it was received from Dr. Tehl Singh, proved that the property was purchased out of the personal funds of Ripudaman Singh, We are of the opinion that the mere statement of Maharani Sarojini Devi that she had brought the amount of Rs. 3,00,000/- from the personal amount in possession of Ripudaman Singh and that this amount had been paid to Shri Sitole by Ripudaman Singh as consideration for the purchase of "Sterling Castle" in the name of Dr. Tehl Singh should not have been accepted as gospel truth in the absence of any documentary evidence to show that Ripudaman Singh was receiving Rs. 3,00,000/- annually as "Sarfa Khas" and the amount for the purchase of "Sterling Castle" was paid out of his personal funds. The learned single Judge felt, as is clear from the judgment under appeal, that the admission made by Maharani Sarojini Devi that no account was maintained by Ripudaman Singh for "Sarfa Khas" nor any entry of Rs. 3,00,000/- was made anywhere about the purchase of "Sterling Castle" was worthy of credence. The reason for which the learned single Judge felt so seems to be the failure of the defendants to produce some entry from the accounts of the Nabha State to show as to who had really purchased "Sterling Castle". To reproduce what the learned Judge said......
"Why did not the defendants themselves produce some entry from the State accounts, so that the Court would have known as to who had really purchased the property? It was not difficult for the defendants to have procured such an entry if really the disputed property was purchased from the State funds".
These words, in our opinion, show that the learned Judge was under an impression that it was for the defendants to establish that "Sterling Castle" had been purchased from the State funds to rule out acceptance of the fact that it was purchased by Maharaja Ripudaman Singh. from his personal funds. This approach of the learned single Judge is untenable in law.
47. There are several circumstances which point to the conclusion that the purchase of "Sterling Castle" by Maharaja Ripudaman Singh was as property belonging to the Nabha State.
48. The property was purchased in the name of Dr. Tehl Singh. In the Tax Register of the Simla Municipal Board, (Ex. D/3) "Sterling Castle" was shown as property belonging to the Nabha State till the year 1948. Thereafter, it was shown to be the property of his Highness Pratap Singh from the year 1949 onwards. Exs. D/4 to D/8 are documents which go to suggest that the property was being dealt with as property of the State of Nabha. The Municipal taxes, relating to "Sterling Castle", were being paid by the Nabha State. The management of the property also was in the hands of the Public Works Department of Nabha State. These are the matters of admission on behalf of the plaintiffs.
49. The statement that was made by Shri Hignorani, appearing for the plaintiffs, before us was that the plaintiffs did not dispute the fact that the property was being managed by the Nabha State. What, however, he urged was that the fact of management of the property by the Nabha State did not conclusively establish the fact that it belonged to Nabha State. It is true that the fact of management of the property by the Nabha State does not conclusively establish that it belonged to the State, yet, this is a very strong circumstance pointing to the fact that "Sterling Castle" was, in all probability, the property which belonged to the Nabha State.
50. The decision of the Delhi High Court in RFA (CS) No. 6 of 1977 (H. H. Maharani Sarojni Devi (since died find represented by, legal heirs) v. H. H. Maharaja Pratap Singh, does not say anything to the contrary. We have referred to the decison earlier. What was said in that judgment was that the property (House No. 34, Alipur Road, Civil Lines, Delhi) had been purchased by Ripudaman Singh benami in the name of one Gur Narain Singh. That conclusion was founded upon the evidence led in the suit. The Division Bench, which dismissed the suit filed by Pratap Singh for possession of the house in appeal, observed that the mere fact of management by the State was not conclusive of the fact that the property belonged to Nabha State.
51. The circumstances which were accepted by the Division Bench, differing from the learned single Judge, who had tried the suit, of the Delhi High Court, were that the property was purchased benami in the name of one Gur Narain Singh Gill on April 8, 1922.
In the year 1923, on a demand from the Administrator of the Nabha State who was appointed after the Maharaja was forced to leave the State, Gur Narain Singh Gill wrote a letter stating that the property was acquired by the Maharaja and that he was only a benami. Gur Narain Singh Gill later executed a release deed in favour of Nabha State in the year 1937. The property in dispute was found to have been, admittedly, purchased by Maharaja Ripudaman Singh in the name of Gur Narain Singh Gill. It was also in evidence that whenever Maharaja purchased a pro perty, the Government of India made en quiries. The Court believed the evidence of Maharani Sarojini Devi that the British Government required the Rulers of States to seek permission from the Central Government before purchasing any property outside the State and that Maharaja Ripudaman Singh did not want to seek permission. In addition, the learned Judges relied upon the decision of the Allahabad High Court relating to the property at Dehradun and the judgment of the learned single Judge in the case of "Sterling Castle" which is under appeal before us.
52. The circumstances which weighed with the learned Judge of the Delhi High Court, in our opinion, were hardly sufficient to justify the conclusion arrived at by them and we find ourselves unable to share the view taken by the Delhi High Court in this respect.
53. The learned Judge has found that statement of Maharaja Pratap Singh, DW 2, to be such upon which "explicit reliance" could not be placed as he gave evasive answers and to some of the questions he did not give any reply at all on the ground that he did not remember things. Much, however, does not turn upon it. The plaintiffs had to prove their own case, particularly, in regard to the fact that there was some amount available to Ripudaman Singh as his personal money out of which the sale consideration for the purchase of "Sterling Castle" was paid. We have seen the evidence in this regard. It consists entirely in the form of oral evidence of Maharani Sarojini Devi. We have found it difficult to accept that evidence in the absence of any documentary support.
54. Much stress was laid on behalf of the plaintiffs-respondents upon the relinquishment deed dated April 30, 1952, stated to have been executed by Dr. Tehl Singh at the request of Pratap Singh himself. This deed is a registered document. It was urged by Shri Hingorani that this deed clinched the issue in favour of the plaintiffs. Acertified copy of the deed is on the record of the suit. The original was not produced, according to the counsel for the plaintiffs, by Pratap Singh in spite of beting summoned from him. Pratap Singh says that he never asked anyone to execute the deed of relinquishment.
55. It is not in doubt that after the State of Nabha became party to the Merger Agreement in the year 1949, "Sterling Castle" was shown to be a personal property of the Maharaja in the list submitted by the Nabha State to the Raj Pramukh of Pepsu. It was accepted to be the personal property of the Maharaja. The Inventory of immovable properties, which had been submitted by Maharaja Pratap Singh along with his letters dated 19th August and 24th October, 1948, in accordance with Article XII of the Covenant for the formation of the Patiala and East Punjab States Union had, the approval of the Government of India in the Ministry of States. There seems to be substance in the submission made on behalf of the defendants in this Court that there was hardly any occasion for Maharaja Pratap Singh to seek relinquishment of the title of Dr. Tehl Singh in this property by obtaining a deed of relinquishment in the year 1952.
56. From the copy of the deed of relinquishment, it appears that some of the owners had called upon Dr. Tehl Singh to execute the deed of relinquishment. He did so in favour of four persons, namely, Maharani Sarojini Devi, Maharaja Pratap Singh. Maharajkumar Kharagh Singh and Maharaj-kumar Gurbaksh Singh. The question of the execution of this deed, at the instance of Maharaja Pratap Singh apart, we find a mention in this deed that the property (Sterling Castle) was "all through in possession of the Ruling family and State of Nabha". The submission, founded upon this recital, by Shri Chhabil Dass that the statement that the property had been in the possession of the State of Xabha and Maharaja Pratap Singh, the Ruler, and not the heirs of late Ripudaman Singh seems to be plausible.
57. There is no cogent evidence to establish that Dr. Tehl Singh was the person who had executed this deed of relinquishment. No one knows, atleast there is nothing on the record of the present suit to suggest, who this Tehl Singh was. He has not appeared in the witness box. The plea that it was Pratap Singh who had asked for the release of the property could have been easily established by appearance of Dr. Tehl Singh as a witness in the case. Since it is the plaintiffs' plea that Tehl Singh had executed the deed of relinquishment in favour of the heirs of Ripudaman Singh, who had purchashed the property benami in the name of Tehl Singh, it was the burden of the plaintiffs to produce Tehl Singh before the Court. Or else, being evidence on the record to show that he was not available. They have not done so. In the circumstances of the present case where, admittedly, "Sterling Castle" was shown in the list of properties of Maharaja Pratap Singh in the Inventory in the year 1949, it does not stand to reason why he should have attempted to obtain any deed of relinquishment in respect of the property.
58. We may also mention that even before the year 1952, parties had started having dispute about the properties stated to have been purchased by Ripudaman Singh out of Nabha State. There was already litigation between Pratap Singh on one side and Maharani Sarojini Devi on the other in respect of Ilahi Manzil at Dehradun. On March 18, 1951, Maharani Sarojini Devi had filed Suit No. 61 of 1951 against Pratap Singh and his wife and others in the court of Civil Judge, Dehradun. There seems to be no reason why Pratap Singh should be a party to a deed of relinquishment in which the present plaintiffs, or some of them, were shown to be the co-owners with him of "Sterling Castle" which had been accepted to be a private property of the Maharaja (Pratap Singh) in the year 1949.
59. We may not be understood as saying that the fact of "Sterling Castle" being mentioned private property of the Maharaja in the Inventory deprives the original owners, if any, of their share in the property as heirs of Ripudaman Singh. We have mentioned the fact, more than once, as we feel that it would not be consistent with normal human conduct to expect Maharaja Pratap Singh to seek the deed of relinquishment, as alleged by the plaintiffs, from Dr. Tehl Singh in favour of all the heirs of Ripudaman Singh when, admittedly, "Sterling Castle" has been shown as a private property of the Maharaja in the Inventory in the year 1949 and dispute had already arisen between Maharaja Pratap Singh on one side and the heirs of Ripudaman Singh on the other in respect of the properties left by Ripudaman Singh, in the year 1951. We are not inclined to place much reliance on this deed of relinquishment for drawing an Inference in favour of the plaintiffs about "Sterling Castle" being the personal property of late Ripudaman Singh in which all his heirs would have share as members of a Joint Hindu Family.
60. Shri Hingorani brought to our notice some documents on the record of the suit to which we must now advert. Ex. 'A' is a copy of D.O. Letter dated March 13, 1956, which was written by one Ranbir Singh to Maharaja Pratap Singh at his New Delhi address. Ranbir Singh has been described as Chief Secretary to the Government of Pepsu, Patiala, in the reply sent by Maharaja Pratap Singh to this letter. Ranbir Singh has not been produced as a witness.
61. The D.O. Letter dated March 13, 1956, shows that Ranbir Singh informed Maharaja Pratap Singh that a sum of Rs. 4,35,450/- had been advanced, against the estate of Maharaja Ripudaman Singh, as detailed in the letter, in the year 2004 B (1943). Instructions were sought by Ranbir Singh from Maharaja Pratap Singh for the payment of the amount to the State Government.
62. Ex. PW 3/B-1 is a copy of letter dated July 6, 1956, sent by Maharaja Pratap Singh to the Chief Secretary, Shri Ranbir Singh, In it, amongst other things, he said that as far as he could recollect a sum of Rs. 4,54,160-0-3 was advanced as loan against the estate of his revered father Maharaja Ripudaman Singh of Nabha and subsequently orders were issued by him in his capacity as full powered Ruler, with the approval of the Executive Council, to make a provision for the amount in the State budget as an extra grant to clear off the above loan. On the basis of this reply a letter dated October 30, 1956 was written by Ranbir Singh to Shfi S. Narayanswamy, Deputy Secretary to the Government of India, Ministry of Home Affairs, New Delhi (A copy of the letter is Ex. PW3/C). Along-with this letter, a copy of the letter dated July 6, 1956 of Maharaja Pratap Singh was also enclosed. It was stated that the expenditure was not incurred for the benefit of the family of the Maharaja, or the State and could not, therefore, be a legitimate charge on the present Maharaja. Further, that the Maharaja had ordered these payments as Ruler of Nabha and in other cases the State Government had generally decided not to question the expenditure incurred by the then Rulers of erstwhile States. It was decided to write off the outstanding. It was requested that the concurrence of the Government of India for the disposal of the case in the manner indicated in the letter may be communicated at an early date.
63. These letters undoubtedly recognise the existence of some personal property of Maharaja Ripudaman Singh as urged by Shri Hingorani. They do not, however, show that "Sterling Castle" was one such property.
64. We may summarise the circumstances which, according to Shri Hingorani, showed that "Sterling Castle" was intended to be kept as a separate personal property of Maharaja Ripudaman Singh. Shri Hingorani stated (a) that the property was purchased by Tehl Singh on behalf of Ripudaman Singh; (b) that it had been purchased from the income kept by Ripudaman Singh as a separate income of his own; (c) that the property remained in the name of Dr. Tehl Singh till the year 1952; (d) that there was no presumption that it was sought to be incorporated or blended with the impartible property of the Nabha State; and (e) that the oral evidence of Maharani Sarojini Devi as well as of Pratap Singh showed that Ripudaman Singh remained away from Nabha from the year 1923 till his death and that there was no evidence to show that he wanted to incorporate his personal property with the impartible property of the State inherited by Maharaja Pratap Singh as Ruler or that Ripudaman Singh had any opportunity to do so.
65. The assumption upon which these circumstances have been pressed into aid by Shri Hingorani is that the property had been purchased from the personal income of Ripudaman Singh, and on his behalf, benami, in the name of Dr. Tehl Singh. We have not been able to accept this part of the plaintiffs' case.
66. The result of the discussion made by us above clearly is that the plaintiffs have failed to establish that "Sterling Castle" was purchased benami in the name of Dr. Tehl Singh from out of the personal funds of Maharaja Ripudaman Singh or that it was, on that account, his personal property. Their failure to establish this basic fact much result in the dismissal of the suit.
67. Since we have come to the conclusion that the plaintiffs-respondents have not been successful in establishing that the property "Sterling Castle" was purchased out of the personal fund of Maharaja Ripudaman Singh, we do not consider it necessary to go into the other submissions made before us.
68. Plaintiffs-respondents, Smt. Vimla Devi and Kamla Devi, had made an application dated August 6, 1988, on August 12, 1988. It is Civil Misc. Petition No. 156 of 1988. The prayer in the application is that the appellants be directed to handover possession of the suit property to the applicants and also deposit the mesne profits with the Registrar of this Court in terms of the interim order dated May 12, 1988. Further, the appellants be directed to pay interest upon the mesne profits due. In the body of the application it is mentioned that the appellants were in contempt as they had wilfully disobeyed the order dated May 12, 1975. They should not be heard on that account.
69. Initially, an ex parte interim order was made on April 2, 1974, saying that the operation of the decree under challenge shall remain stayed except in respect of costs against appellants No. 1 and 5. After hearing parties, the Court made an order on June 17, 1974. The preparation of the final decree was permitted to go on but actual partition was not to be made. Further, the amount awarded as mesne profits under the decree was required to be deposited by the appellants, together with the future mesne profits, in the Registry of this Court. The amount was not to be paid to the plaintiffs-respondents.
70. Subsequently, on May 12, 1975, a modification was made in the order. Further time was granted for the deposit of the amount together, with interest. The other directions contained in the order of June 17, 1974, were reiterated by saying that those were conditions upon which the interim order had been passed by the Court staying the actual partition of the property and the delivery of possession. The last sentence of the order of May 12, 1975, says that :
"..........In case any of those conditions are not complied with by the appellants, the stay order will stand automatically vacated."
71. The plea that the appellants were in contempt, on account of non-compliance with the conditions of the interim order, and, therefore, not entitled to be heard in appeal was reiterated by Shri N. K. Hingorani before he closed his submissions on behalf of the plaintiffs-respondents before us.
72. We have noticed earlier that in the order of May 12, 1975, it was clearly stated that in case the conditions mentioned in the order of June 17, 1974, were not complied with or satisfied by the appellants, the stay order would stand automatically vacated. Shri Hingorani was not able to point out to us any steps that may have been taken by the plaintiffs-respondents for getting the decree executed when they found that the stay order ceased to be effective on account of non-compliance of the conditions thereof by the appellants. It was open to the decree-holders to take necessary steps to get the decree executed to its logical conclusion that they did not do so. We feel that, in the circumstances of the instant case, non-compliance by the appellants of the conditions subject to which interim protection had been granted to them by this Court, did not call for our refusal to hear them on the merits of the appeal.
73 In conclusion, we allow the appeal, set aside the judgment and decree of the learned single Judge and dismiss the suit of the plaintiffs. We, however, leave the parties to bear their own costs of this appeal.