Gujarat High Court
Ambicaprasadsinh Jayrapurajsinh ... vs Manoharsinhji Pradyumansinhji Jadeja ... on 16 April, 1998
Equivalent citations: (1999)1GLR36
JUDGMENT R. Balia, J.
1. These two appeals raise identical issues by the same appellants claiming right to interest in the property owned by late Pradyumansinhji, erstwhile Ruler of the Rajkot State though relating to the different properties. In fact, the trial Court has also decided application for temporary injunction in each of the suits by common order dated 15th September, 1997. The appellant had filed Special Civil Suit No. 48 of 1997 and Regular Civil Suit No. 127 of 1997 in the Court of the learned Civil Judge (S.D.), Rajkot.
2. The case of the appellant is that he is the grandson of late Pradyumansinhji Thakore of Rajkot. The properties held by him belong to the Hindu Undivided Family being ancestral. As the coparcener, he had 1/6th share in the suit property. He, therefore, claimed partition of the entire joint family estate and also challenged certain alienations made by the defendants since the death of Pradyumansinhji who died on 9th December, 1973. He had executed a will dated 30th September, 1973 in respect of which a probate has been obtained by his executors who are respondent Nos. 1 and 2 herein. The defendants had resisted the claim of the plaintiffs on the ground that the property was not joint Hindu undivided property. The property has been retained by him under the covenant under which sovereignty of the erstwhile State of Rajkot was surrendered at the time of merger of the Indian States before the Constitution came into force and such property do not bear the character of ancestral property. It was also the case of the defendants that since under the covenant the properties were made subject to the succession, Hindu Succession will also not apply and the plaintiffs has no right, title or interest in the property.
3. The appellants-plaintiffs in each case also moved an application for temporary injunction Exh. 5 for interim order of maintaining status quo qua the property by the defendants. Though in the first instance, ex parte ad interim order was passed by the trial Court, by the common order dated 15th September, 1997, application for temporary injunction in both the cases was rejected and the ad interim orders made earlier were vacated. Hence, these two appeals.
4. It has been urged by the learned Counsel for the appellant Mr. R.A. Mishra that the origin of the estate in question is traceable to ancestors of Pradyumansinh and therefore, the property in question must be held to be prima facie belonging to Hindu Undivided Family and not to Pradyumansinh in his individual capacity. It was also urged that even if it be assumed that while the property was held by late Pradyumansinh as Ruler, was in his absolute domain and the members of the family had no right to claim during the subsistence of sovereignty, but the right was always there, though dormant so long as Pradyumansinh continued to be a sovereign, and after the merger of the State with Union of India so long as he continued to be recognised as Ruler of the State, but when the status as a Ruler ceased to exist, the right of the members of the family in their ancestral estate revived. In substance, the contention is founded on the premises that the property being ancestral in character notwithstanding the status of holder of the estate for the time-being sovereign, the right of coparcener of other members of the family was never extinguished. The claim to this right is traced in this manner that grandfather of father of the plaintiff Shri Lakhajiraj Saheb was the Thakore of the estate during 1907-1930, upon his expiry, his eldest son Dharmendrasinhji succeeded to Gaddi as the Thakore; when Thakore Dharmendrasinhji expired issueless, his younger brother and the grand-father of the plaintiff Pradyumansinh became Thakore somewhere in 1937. The plaintiff is son of late Jayraghurajsinhji, the predeceased son of Pradyumansinh. The other children of Pradyumansinh being Manharsinhji, Pramilaben, Prahladsinhji, Mohinidevi, the sons and daughters respectively of the deceased and are defendant Nos. 1, 2, 3 and 5 in the Suit No. 48 of 1997. With this pedigree, it is claimed that the properties which Shri Lakhajiraj was holding during sovereign time, obtained by son Dharmendrasinhji by inheritance after his death and after death of Dharmendrasinhji, all properties held by him came into the possession of Pradyumansinh by inheritance. Thus, according to the plaintiff, as the properties were inherited by Ruler it bore the character of ancestral character as is known under the Hindu Law. Though during the life-time until derecognition of his status as Ruler of Rajkot, the properties may have bore the character of impartible estate on the abolition of privy purses and other privileges of erstwhile Rulers and derecognition of their status as a Ruler, resulted in disappearance of the impartible nature of the State and it became a common estate amenable to ordinary law as it is applicable to the Hindu Undivided Family property. On this premise, the learned Counsel has assailed the finding of the trial Court that the suit property in the hands of late Shri Pradyumansinh was an impartible estate and it was not subject to partition. The succession to estate even after commencement of Hindu Succession Act continued to be governed by the rule of primogeniture and that he being the holder of the impartible estate was competent at law to dispose of, it by will. Further, that since the estate was not a coparcenary neither his sons nor any grandson can legitimately claim to have any right and interest in the same by birth.
5. Learned Counsel also urged that the trial Court has not properly appreciated the decisions in cases of Revathinnal Balagopala Varma v. His Highness Shri Padmanabha Dasa and Ors. 1993 Supp. (1) SCC 233 and Smt. Shanti Devi Gaekwad v. Sangramsinh Gaekwad 1995 (2) GLH 461. Reliance was placed on the observation of the Supreme Court in Revathinnal Balagopala Varma case (supra) that, The covenant only contained an assurance of the Government of India, subject to arbitration clause in the covenant, would not question the declarations by the erstwhile Rulers that certain properties belonged to them in their personal capacity and not in their capacity as a Rulers. It is settled issue as between the Ruler and 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.
6. On this premise, it has been strenuously urged that in each case where such claim is raised, the question whether the title to any property vested in the ruler absolutely or vested in the joint family will have to be decided as a substantial question of fact. This being a substantial contention required to be decided in the suit, it must be held that the plaintiffs have made out a case for grant of temporary injunction in their favour, subject to any conditions.
7. Having carefully considered the contentions raised by the parties and perused the decisions placed before me, I am of the opinion that the appeal merits no interference in the order of the trial Court.
8. Firstly, it has been noticed that the suit has been filed not against the last holder of the property, but after his demise when succession to his estate has opened. Undoubtedly, the plaintiff is one of the Class I heir present at the time of death of late Pradyumansinh, if succession is to be considered as intestate. However, there is no dispute for the present that the deceased had left a will in respect of his properties which has been duly proved in a probate case and in the face of existence of will, the plaintiffs can have no claim to intestate inheritance, even if the suit is treated one for partition amongst the collateral after the property has passed from the hands of the last holder and the interest therein have settled according to law of succession as was applicable at the time of his death. Therefore, so far as to that extend interest of Pradyumansinh whether as a member of a joint family or as an absolute owner was concerned, the plaintiff can have no claim to seek partition of that estate. Only question that remains to be considered is as to whether the properties in question prima facie bore the character of joint family property or an ancestral property prima facie so as to induce the plaintiffs claim to a share in it by birth.
9. One very distinct feature of the present case is that until the properties were retained by late Pradyumansinh under the covenant, there was no separate existence of the personal properties distinct from the State itself of the Rulers of Rajkot State. The property was owned and enjoyed by Rulers during their sojourn absolutely. That position has not been disputed and cannot be disputed. The question then arise for consideration is whether on the ceding of sovereignty to India that is cessation of the status as a Ruler whether any part of such estate as retained by a person who was erstwhile Ruler or recognised as Ruler at the time of merger thereafter, by itself results in a different character impressed over the property on the basis that succession to Ruler of State was governed by rule of primogeniture to lineal descendant or according to the customary law applicable to the parties. In other words, as the Hindu Law envisages two types of properties, one obstructed heritage and unobstructed heritage bear different character. Does this rule apply to succession of the sovereign State as a Rule. It has to be borne in mind that while Hindu Law presumes existence of a joint Hindu family, no such presumption exists that every joint Hindu family owns joint property also. It is only if once it is shown that the joint family had an ancestral property, it can be presumed that all property is of joint family, so inherited or acquired with that nucleus.
10. The property in which a person acquires an interest by birth is called unobstructed heritage. The property inherited by a Hindu from his father, father's father or father's father's father, is considered as unobstructed heritage, with regard to his own male issue. On inheritance by any person from any of the three immediate male ancestors in the male line of ascent, every male child upto three degrees from last holder in male line of descent acquire interest in it by birth and they become coparcener with other male members in such properties. Such property is known as ancestral property. The incidence of acquiring an interest by birth is that the property becomes partible amongst the coparceners though their share may not be determined and be in fluctuating state until they stand determined as soon as the partition is claimed. The crucial factor is that the existence of property owned by father, grandfather or great grandfather and succession to that property by lineal male descendent in that capacity, viz., son, grandson, great grandson, such property in the hand of successor is treated as ancestral. The question is whether the properties owned and administered by a sovereign ruler when devolve on successor as a result of such relationship, acquire the same status.
11. While considering the priority of crown rights in Halsbury's Law of England referring to maxim, The King never dies', it has been stated that-
the Crown cannot have a joint property with any person or in one entire chattel or one which is not capable of division and where the title of the Crown, and a subject concur the Crown takes the whole...for it cannot be a partner with a subject, nor can a Crown become a joint owner of chattel rented by grant or contract, but takes the whole.
12. The question raised in this case is of quite antiquity in India also. It had arisen in the case of properties belonging to Peswa Baji Rao where the question was as to whether there was any distinction between the public and private property of Peswa Baji Rao. Lord Tanteden in his opinion expressed, as reported in the footnote of Privy Council decision in Elphinstone v. Bedreachunal 12 ER 340- When you are speaking of the property of an absolute sovereign, there is no pretence of dwelling a distinction, the whole of it belongs to him as sovereign, and he may dispose of it for his public or private purpose in whatever manner he may think proper.
13. The question had arisen before this Court also in D. Section Meramwala Bhayala v. Ba Shri Amarba Jethsurbhai 1968 (IX) GLR 609. It arose in relation to the property which was owned by Ruler of Khari Bagasara Estate, it was held that:
There is, therefore, no doubt that the Khari Bagasara Estate was a sovereign estate and the Chief of the Khari Bagasara Estate for the time-being was a sovereign Ruler within his own territories subject to the paramountcy of the British Crown prior to August 15, 1947 and completely independent after that date.
If the Khari Bagasara Estate was a sovereign estate, it is difficult to see how the ordinary incidents of ancestral coparcenary property could be applied to that estate. The characteristic feature of the ancestral coparcenary property is that members of the family acquire an interest in the property by birth or adoption and by virtue of such interest they can claim four rights : (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. It is obvious from the nature of a sovereign estate that there can be no interest by birth or adoption in such estate and these rights which are the necessary consequence of community of interest cannot exist. The chief of a sovereign estate would hold the estate by virtue of his sovereign power and not by virtue of Municipal law. He would not be subject to Municipal law, he would in fact be the fountain head of Municipal law.... 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 life-time, 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.
xxx xxx xxx If prior to merger the estate did not partake of the character of ancestral coparcenary property, the properties left with Bhayala 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 Bhayala under the merger agreement. It was not the case of Meramvala and it could not be the case since 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 Bhayala. Bhayala was, therefore, the full owner of the properties held by him and was competent to dispose of the same by will....
14. Ratio in aforesaid decisions was approved by the Supreme Court in case of Revathinnal B. Varma v. H.H. Padmanabha Dasa 1993 Supp. (1) SCC 233.
15. In leading judgment by Justice Oza, J., the distinction between succession to ruler and succession under ordinary Municipal law was thus stated:
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.
16. The Supreme Court has further held that:
All the properties held by a monarch or ruler devolve by the rule of primogeniture, there being no distinction in this regard between his personal properties and those held by him as ruler. But this need not necessarily be lineal primogeniture. It could be general primogeniture, the successor to the rulership being determined according to some prevalent custom. The properties will devolve on the successor so decided upon. The fact that the successor is determined on the basis of Marumakkathayam law no doubt causes the properties to devolve on the next karnavan who succeeds to the rulership. But this does not necessarily lead to the inference that the properties held by the Ruler are the properties of a tarwad. The devolution is by succession from ruler to ruler and not one by way of survivorship under the Marumakkathayam law due to one karnavan taking the place of a deceased predecessor. This circumstance does not, therefore, in my opinion, establish the appellant's claim.
17. In a concurring judgment, Mishra J., opined, repelling the contention that if the properties had been the personal properties of the ruler, they would have devolved on his death on his heirs according to Municipal law and therefore, the properties retained under the covenant within the sovereignty must be held to be with present holder as heir of the previous ruler, as per Municipal law:
There is a fallacy in this argument. The doctrine of Hindu Law that property inherited by a son from his father would be ancestral property in his hands cannot be applicable in this context. The devolution of properties here was from one monarch to his successor (who is not a son or a lineal descendant) and the successor would be as absolutely entitled to them as his predecessor and cannot become a limited holder.
18. These decisions, in my opinion, prima facie negates the claim of the plaintiff-appellant to status of joint tenancy and to share the property as a coparcener which was retained by late Pradyumansinh, who was Ruler of the State of Rajkot since 1939, until its merger with the Indian Union, at the time of merger of the State as personal properties because the properties which were held prior to merger bore the character of absolute property of sovereign in which no one else had any interest and retention of such property on ceding sovereignty by the ruler would not alter the character of the properties, giving any interest to other members of the family in the property by birth or otherwise, except by any voluntary act of such holder or through operation of law thereafter. To illustrate, if a ruler had absolute property owned by him at the time of merger and he expires prior to the commencement of the Hindu Succession Act, the property vesting in his successors by inheritance may alter the character of the property, if the holder was a Hindu male and succession was to his male lineal descendants. In that event, such acquisition in the hands of son, grandson or great grandson become unobstructed heritage qua his lineal descendants. But so far as the holder himself is concerned, prima facie no one else would get an interest in it during life-time of first holder after merger of State with Union Territory.
19. This being the legal position with respect to the properties which were held and enjoyed by the erstwhile ruler as a ruler, it did not impinge upon the character of properties which may otherwise exist and held independently of sovereign status. However, in that regard, the question has to be determined in the light of pleadings and materials placed in support of it.
20. As noticed above, mere retention of properties by erstwhile ruler would not alter the nature of the property and the properties held by a ruler are ordinarily to be treated his absolute properties. Covenant by itself does not determine the character of property or affect the rights of third parties. It only puts an end to contentions between the ruler and the successor State, viz., Union of India. Ordinary law is that the property held prior to such retention was in his capacity as a ruler, and that stamps it with the character of self-acquired or absolute property of the holder when retained under covenant. If someone claims to contrary, it is for him to establish the fact contrary to it. However, for such situation, it is for somebody to assert that to any particular property held by a sovereign, the legal incident of sovereignty did not apply. In other words, it has to be first pleaded as fact that property in question was not held by erstwhile ruler as ruler, but was held under the Municipal law administered by him and was subject to incidence of Municipal law. For doing so, it will have to be pleaded and established by him that the said property held by the sovereign was not held as sovereign, but in some other capacity. These pleadings must be something apart from mere assertion that the property belongs to the Joint Hindu Family property or that the person to whom claim is related became succeeded to Gaddi because of his lineal relationship with the previous ruler or rulers.
As has been noticed above, the fact that succession to Monarch or ruler is governed by some customary rule or by rule of primogeniture in the male line of descent by itself would not be decisive of the character of property so acquired because succession in that event will have to be from ruler to ruler and not from father to son. It may be noticed that under ordinary Municipal law, line of succession is well defined and it does not depend on any form of recognition. In the case of Ruler, the vesting of power and status as such awaits his recognition as sovereign or ruler in some form. To recall the maxim 'King is dead long live the King', filial or worldly relation do not intervene a priori.
21. In this regard, it has been observed by the Supreme Court in Revathinnal Varma's case (supra) that:
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 No. 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 No. 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.
22. The facts of the present case are no different in this regard. Apart from asserting that the late Pradyumansinh succeeded to the throne of Rajkot as son of Lakhajiraj when the erstwhile ruler Dharmendrasinhji died issueless denoting that succession was limited within the male lineal descendancy of the last holder to invoke the principles of unobstructed heritage in respect of the properties retained by Pradyumansinh on cessation as ruler of the State, nothing has been shown as to the source and nature of acquisition of any property to distinct it from the other property and to bring that property in the realm of its governance under Municipal law of succession, even during the time of his holding the reins of the State.
23. In this view of the matter, I am of the opinion that the trial Court was justified in coming to the conclusion that prima facie plaintiff has failed to make out a case in his favour and is not entitled to the injunction prayed for.
24. The appeal, therefore, fails and is hereby dismissed. There shall be no orders. as to costs. Interim relief stands vacated.