Gujarat High Court
Yuvraj vs Ask on 20 July, 2010
Author: Bhagwati Prasad
Bench: Bhagwati Prasad
Gujarat High Court Case Information System
Print
FA/6911/1999 116/ 116 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 6911 of 1999
With
FIRST
APPEAL No. 7847 of 1999
With
FIRST
APPEAL No. 7853 of 1999
With
FIRST
APPEAL No. 7861 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To
be referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ?
NO
=========================================================
YUVRAJ
PRITHVIRAJSINHJI S/O MAHARAO MADANSINHJI - Appellant(s)
Versus
ASK.
BRIJRAKUMARI SAHEBA OF KUTCHCH & 12 - Defendant(s)
=========================================================
Appearance
:
MR
DC DAVE for
the Appellant/Org. Plaintiff
MR. MIHIR THAKORE, LD. SR. ADVOCATE
WITH MR. R.D. DAVE for Respondent Nos. 1, 10 11/Org. Defendant Nos.
2, 12 & 13
MR.
P.M. RATHOD for respondent No. 2/Org. Defendant No. 3
MR
S.B. VAKIL, LD. SR. ADVOCATE WITH MR. AS VAKIL for respondent Nos.
3-5, 8 / Org. Defendant Nos. 4 - 6, 10,
MR CH VORA for respondent
No. 6 /Org. Defendant No. 7
DELETED for respondent No. 7 / Org.
Defendant(s) No. 8
None for respondent Nos. 7.2.1, 7.2.2,
7.2.3,7.2.4
NOTICE SERVED for respondent No. 9 / Org. Defendant
No. 11
MR SHALIN N MEHTA for Resp. Nos. 12-13/Org. Defendant(s) :
14-15
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 20th/07/2010
CAV
ORDER
(Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) By this common judgement we are deciding the appeals arising out of the decision rendered by the Court of learned Civil Judge (Senior Division), Kachchh-Bhuj on 18.9.1999. By the aforesaid judgement, learned Civil Judge has decided Special Civil Suit No. 68 of 1980, Regular Civil Suit No. 42 of 1995 and Civil Miscellaneous Application No. 73 of 1993. For the purpose of deciding the controversy, first we are delineating the facts as contained in Special Civil Suit No. 68 of 1980. The other two matters being cognate and are arising out of the same controversy are being dealt with subsequently. In that view of the matter, the facts of Special Civil Suit No. 68 of 1980 are the foundation of our judgement as the same has been the basic foundation of the judgement of learned Civil Judge (Senior Division), Kachchh at Bhuj.
2. The plaintiff in Special Civil Suit No. 68 of 1980 is the appellant before us in this appeal. The plaintiff appellant claimed in his Suit that he is son of defendant No. 1 and 2, both defendants since deceased. Defendant Nos. 3 and 4 in the said Suit were described as younger brothers of the plaintiff. Defendant Nos. 5 and 6 were grandsons of defendant No. 1. Defendant Nos. 12 and 13 are sisters of the plaintiff. Defendant Nos. 9 to 11 were the trustees of Maharao Shri Madansinhji Charitable Trust. Defendant Nos. 14 and 15 were purchasers of some property out of the properties of the subject matter of the Suit. Defendant Nos. 7 and 8 who dealt with the property.
3.1 The plaintiff claimed that prior to February, 1948, the erstwhile State of Kachchh was ruled by His Highness Maharao Vijayrajji, father of defendant No. 1. The then Maharao Vijayrajji expired in or about February, 1948. The said Maharao Vijayrajji, at the time of his death or prior to that, was Karta of the family which has been referred as joint family by the plaintiff. This family constituted Maharao Vijayrajji as Karta, his wife Maharani Padmakunvarba, his eldest son Yuvaraj Madansinhji who is defendant No. 1 in the Suit, Yuvarani Rajendrakumariba who is wife of Madansinhji and defendant No. 2 in the Suit and the plaintiff as the eldest son of defendant Nos. 1 and 2 and defendant Nos. 3 and 4 who are the other sons of defendant Nos. 1 and 2 and Nandkunvarba and Brijkunvarba are daughters of defendant Nos. 1 and 2. It was contended by the plaintiff that the said joint family was governed by Mitakshara School of law and the family held various immovable and movable properties within and outside the State of Kachchh.
3.2 The plaintiff contended in his Suit that on the demise of Maharao Vijayrajji in or about February, 1948, defendant No. 1, being the eldest son of the deceased, became Karta of the joint family. He gained control over various movable and immovable properties belonging to the joint family as Karta. According to the plaintiff, at the time of filing of the Suit, his branch and defendant Nos. 1 and 2 constituted the joint family. According to the plaintiff, the other members have ceased to be the members of the joint family for the circumstances mentioned in the Suit.
3.3 It is the case set up by the plaintiff that on the demise of Maharao Vijayrajji, defendant No. 1 became Ruler and Maharao of Kachchh. In that capacity defendant No. 1 on 4.5.1948 ceded to the dominion Government full and exclusive jurisdiction and powers in relation to the governance of the State of Kachchh. It was agreed to transfer the administration of the State to the dominion Government on 1.6.1948. An instrument of ceding was made between the Governor General of India and defendant No. 1 on 4.5.1948.
3.4 By the aforesaid instrument there was a distinction made by the parties to the properties belonging to the State of Kachchh and the properties of the Ruler, that is to say, the properties other than those belonging to the State of Kachchh. By Clause (4) of the instrument, it was declared that defendant No. 1 was entitled to the ownership, use and enjoyment of all private properties as distinct from the State properties as belonging to the State of Kachchh. The plaintiff has contended in his Suit that when the instrument of ceding was signed, defendant No. 1 was Karta of the joint family comprising of plaintiff, defendant Nos. 1 and 2 and the mother of defendant No. 2. It has also been contended that Bhupatsinhji and Hanuvantsinhji defendant Nos. 3 and 4 and Nandkunverba and Brijkunvarba, daughters, who were unmarried at that time, were also members of the joint family at that stage.
3.5 In terms of the instrument dated 4.5.1948, defendant No. 1 became entitled to receive annual sum of Rs. 8,00,000/- (Rupees eight lakh) as privy purse, an amount which was intended to cover all the expenses of the first defendant and his family. The agreement referred to hereinabove was supplemented by another agreement also as recorded in a letter also dated 4.5.1948 addressed by the Government of India, Ministry of States to defendant No. 1. The plaintiff has stated that at the time of merger of the State of Kachchh with the Dominion Government in or about June, 1948 and thereafter, defendant No. 1 as Karta of the joint family seized and possessed of and/or had control, charge and management and held the immovable properties belonging to the joint family consisting of the plaintiff, defendant Nos. 1 and 2. The properties came to the hand of defendant No. 1 as Karta of the said joint family on demise of said Maharao Vijayrajji.
3.6 The plaintiff has further stated that in addition to the above, the properties mentioned in paragraph Nos. 5, 7, 9, 11 and 21 of the Suit were joint family properties. It is further contended by the plaintiff that as Karta of the joint family, defendant No. 1 purchased properties which are narrated in paragraph No. 7(a) of the plaint. According to the plaintiff, the said properties were purchased in or about or between 1948 and 1980 by defendant No. 1 as Karta of the joint family out of out family funds from Sindhu Resettlement Corporation. The original Sale Deed and the document of title in respect of the said properties were in custody and possession of defendant No. 1. The plaintiff further alleged that in addition to the items mentioned in paragraph No. 9 of the plaint, the defendant as Karta of the joint family has also acquired movable properties and assets which belonged to the joint family having been acquired from the joint family funds. The said properties are detailed in paragraph No. 11 of the plaint. The plaintiff has asserted that defendant No. 1 never had and did not have any independent source of income other than the income earned and derived from the joint family fund, assets and properties and investment in movable and immovable properties.
3.7 It is alleged by the plaintiff in his plaint that all the properties presently held or owned by or in possession, control or custody of defendant No. 1 belonged to the joint family and the plaintiff is entitled to 1/3rd share as a member of the joint family.
3.8 This has also been stated by the plaintiff that in accordance with the terms of agreement dated 4.5.1948 till the year 1970, defendant No. 1 received an annual grant of Rs. 8,00,000/- from the Government of India by way of privy purse. This amount was received by defendant No. 1 as Karta of the joint family. According to the case in the plaint, it was stated in the instrument of accession dated 4.5.1948 that the privy purse is payable for expenses of defendant No. 1 and his family and as such this amount was held by defendant No. 1 for and on behalf of the joint family. The plaintiff has stated in the plaint that by the Constitution (26th Amendment) Act, 1971, the Government of India has discontinued the said annual grant from the effect of the year 1971. In lieu thereof, defendant No. 1 as Karta of the joint family, according to the plaintiff, became entitled to receive and recover compensation as and when payable by the Government of India. The plaintiff has stated that the matter is subjudice in the Hon'ble Supreme Court and therefore has sought leave of the Court under the provisions of Order 2 Rule 2 of the Code of Civil Procedure, 1908, to commit to sue in the Suit for share of the amount of the compensation payable as aforesaid to defendant No. 1 as Karta of the undivided joint family.
3.9 The plaintiff has contended that in or about April, 1960, defendant No. 3 and his branch separated from the rest of the joint family and obtained in full satisfaction the share in the joint family properties. The properties enumerated in the writing dated 22.4.1960 are the properties received by defendant No. 3 while separating from the joint family. In August, 1967 defendant No. 4 and his family also separated from the rest of the joint family and obtained in full satisfaction the share in the joint family properties. Such properties are enumerated in the writing dated 30.8.1967 signed by defendant No. 1. It is claimed by the plaintiff that on the aforesaid separation taking place, defendant Nos. 3 and 4 and their respective branches ceased to be the members of the joint family.
3.10 Two daughters of defendant Nos. 1 and 2, Nandkunverba was given in marriage in or about May, 1970 and Brijkunverba, younger daughter of defendant Nos. 1 and 2 was given in marriage in or about November, 1971. The plaintiff claimed that on their respective marriages, two daughters defendant Nos. 13 and 14 ceased to be the members of the joint family. Partial partition so narrated hereinabove was confirmed and admitted by defendant No. 1 in a declaration signed by defendant No. 1 on 24.12.1975 on Gujarat State five Rupee stamp paper No. 6634. This shows an admission of defendant No. 1 that he and the other family members constituted a Hindu Undivided Family.
3.11. The plaintiff has asserted that he has been occupying joint family property known as Ranjit Villa Palace, Bhuj. While occupying this palace, he was maintaining his grandmother. Defendant No. 1 was reimbursing the plaintiff. It is further asserted that defendant No. 1 used to pay the plaintiff annual sum of Rs. 1,26,000/- for the upkeep and maintenance of Ranjit Villa Palace from the joint family fund. The same was reduced to Rs. 1,00,000/- for the years 1976 and 1977. Thereafter, defendant No. 1 stopped paying the plaintiff any amount on this count. In this regard the plaintiff has put forward the claim of the amount which he has spent for maintenance of the property known as Ranjit Villa. He has specified the sum for this purpose. For future also, he has specified the sum in paragraph 18 of the plaint.
3.12. Summarizing his case in paragraph No. 19 of the plaint, the plaintiff asserted that the properties specified in paragraph Nos. 5,7,9 and 11 belong to the joint family comprising the plaintiff and his branch, defendant Nos. 1 and 2 and as such, according to him, he had called upon defendant No. 1 to partition the properties on 3.4.1980. This having not been done, the present Suit is filed.
3.13. The plaintiff has challenged in paragraph No. 20 of the plaint some of the transactions entered into by defendant No. 1 being unauthorized. They have been set out in paragraph No. 21 of the plaint. The plaintiff has averred in his plaint in paragraph Nos. 22 and 23 asserting that as Karta of the family, defendant No. 1 is liable to render accounts in this relation. In paragraph No. 25 of the plaint, there is a reference to the properties other than the one mentioned in the plaint so far. He has claimed that whatever properties he is aware to the best of his awareness has been included in plaint but there exists some other properties for which the plaintiff has sought the assistance of the Court whereby defendant No. 1 can be compelled to disclose the same.
3.14 The plaintiff has thus stated that he is entitled to 1/3rd share of the properties or its monetary value may be made available to him after the Commissioner appointed by the Court affects partition of the joint family property. In paragraph No. 27 of the plaint, the consequence of unauthorized alienation is adverted to and setting aside thereof has been asked for. In paragraph No. 28 of the plaint, a prayer has been made for appointment of Receiver.
3.15 The plaintiff, therefore, prayed for declaration that the Joint Hindu Family property stands severed in status as from 3.4.1980 and for declaration that the immovable and movable properties mentioned in paragraph Nos. 5, 7, 9, 11 and 21 of the plaint are joint family properties belonging to the joint family comprising of plaintiff, defendant Nos. 1 and 2 and for discovery, disclosure of full and complete accounts of the property under the control of defendant and other ancillary reliefs as stated in the prayer clause of the plaint.
4.1 Contesting the claim of the plaintiff, defendant Nos. 1 and 9 have filed written statement and have denied the claim of the plaintiff that there is a Joint Hindu Family to which the plaintiff and the defendants belong to. It has further been denied that the properties inherited by defendant No. 1 are partible ancestral property to which the plaintiff has a right. This has also been denied that defendant No. 1 is Karta of the said family and as such the family is governed by Mitakshara School of Law as regards the alleged properties.
4.2 Defendant No. 1 has stated that on the demise of Maharao Shri Vijayrajji, father of defendant No. 1, he became the Ruler and Maharao of Kachchh as per the family custom followed from the time immemorial. It has been asserted that as per family custom of inheritance, defendant No. 1 has inherited the RAJ and its incidence. It has further been asserted that defendant No. 1 inherited all the properties to the exclusion of the other members and relations of the family. It is the case of defendant No. 1 that to inherit the RAJ or Sovereignty is the birth right of defendant No. 1 being eldest son of Maharao Vijayrajji. The family custom of succession of RAJ and incidentally all the properties devolving on a single member of the family to the exclusion of other members is undisputed, ancient and certain. This has been consistently followed without challenge till date. Such has been admitted and consented by all the deceased members and now surviving members of the family of the Rulers of Kachchh.
4.3 Defendant No. 1 has asserted that no member has ever challenged the family custom of inheritance of RAJ and incidentally all the properties, assets etc. exclusively and absolutely by the eldest son of the then Ruler. Accordingly, defendant No. 1 has inherited the RAJ and incidentally all the properties and assets absolutely as private and personal to the exclusion of all the members of Royal Family.
4.4 The RAJ and all the properties which have been devolved on defendant No. 1, according to him, are impartible estate and the same are owned, possessed and enjoyed by defendant No. 1 as of right to the exclusion of other members of the family. This is a consequence of family custom of succession or inheritance on the demise of the Ruler that the eldest son succeeds to the Gadi of the RAJ along with all the properties. Such properties are held by the succeeding heir of the Gadi with absolute power and right to possess, enjoy and dispose of the properties in any manner and at any time. The family members have never had a right to challenge the said absolute power and right of Maharao occupying the Gadi . The concept of co-parcener does not have the effect of investing any right in an impartible estate, which the eldest son of the deceased Ruler succeeds. Such properties have never been subjected to any liability for maintenance of any member of the Royal Family. Such properties devolved on the eldest son on the demise of the Ruler and remained impartible along with accretion, profits and income therefrom. No family member is entitled to claim maintenance or partition from the properties so devolving on the succession of Gadi or RAJ.
4.5 This has been asserted by the answering defendant that Gadi-pati used to provide maintenance to the members of the family, out of grace and not as legal duty . No member of the family was ever entitled or invested with, any right to claim maintenance from the family properties. The answering defendant has averred that the plaintiff and for that matter other members of the family, had no right, in the property by birth and consequently have no right to ask for partition. This has been asserted by the answering defendant on the strength of the nature of impartible estate inherited, absolutely by defendant No. 1 and the same having been recognized by the family custom governing inheritance.
4.6 The answering defendants have submitted that the members of the former ruling Royal Family of Kachchh were governed by Mitakshara School of Law. This was subject to family custom as to succession of all the properties held by the Gadi-pati or Ruler as impartible estate. Thus, according to the answering defendants the succession on defendant No. 1 was not as Karta of the joint family as described and stated by the plaintiff, but was on his own right as sole and absolute heir to the Gadi and the properties which have devolved on him on the demise of his former Maharao Shri Vijayrajji, as per family custom of inheritance. The properties inherited by the answering defendants are not co-parcenary partible properties but they are impartible properties, wherein the plaintiff or other members of the family, have no right to demand partition and the right to joint enjoyment and future rights.
4.7 This has been submitted by the answering defendants that prior to the death of Maharao Vijayrajji, along with the RAJ, the movable and immovable properties were possessed by him, as an absolute holer of the said properties as impartible. On demise of Maharao Vijayrajji, defendant No. 1 has succeeded to Gadi or RAJ of the State of Kachchh in his own right, according to the rule of primogeniture and has inherited all the properties as impartible properties as an incident to his succeeding to the Gadi , on demise of Maharao Vijayrajji, as per family custom, followed since time immemorial, without challenge or dispute, by anybody till today.
4.8 It has been contended by the answering defendant that the instrument of merger dated 4.5.1948 with letter dated 4.5.1948 are made between the Governor General of India and defendant No. 1 as Ruler and Maharao of Kachchh. The jurisdiction and power for and in relation to governance of the State of Kachchh was transferred by defendant No. 1, to the Government of India, with effect from 1.6.1948 in terms of said instrument of merger. Upon the said instrument of merger, various properties succeeded by defendant No. 1 were recognized as private properties of defendant No. 1 that is impartible properties, as per family custom of succession. This instrument does not by itself change rule of succession or inheritance. On the contrary, it reaffirms and confirms the pre-existing custom of family succession to Gadi and incidentally the properties held by last holder thereof. The grant of privy purse, under the instrument is not as Karta of the alleged joint family but, it was in favour of defendant No. 1 only. Privy purse was not joint or co-ownership property and not liable to partition or account, amongst the members of the Royal Family. Privy purse was absolutely and exclusively granted in favour of defendant No. 1, for his entering into agreement with the Governor General of India, to vest the jurisdiction and power of governance, that is Sovereignty of the State of Kachchh, being transferred from himself, to the Dominion Government, as per the terms and conditions of the said instrument. It was thus a transfer of political power . The said has not resulted into conversion of impartible properties into partible properties. The instrument does not have the effect of divesting the properties vested in defendant No. 1. The instrument neither creates nor extinguishes, any inter se right, amongst the parties to the Suit. The instrument has no effect in respect of the properties inherited absolutely and exclusively by defendant No. 1 as impartible properties and conferred no rights on the members of the alleged joint family for asking for partition.
4.9 This has been contended on behalf of the answering defendants that the plaintiff has admitted that the properties inherited by answering defendant No. 1 are impartible in nature and are absolute possession and ownership of defendant No. 1. While the plaintiff was holding General Power of Attorney for and on behalf of defendant No. 1 for the period for about four years. The plaintiff has made certain Sale Deeds. One of the Sale Deeds relating to Vijay Vilas bears No. 1093 dated 14.7.1972 in favour of Dr. Mrs. Mary Mayur Rajaram, parties of M/s. Ashapura Development Syndicate. In this Sale Deed there is a clear recital about absolute ownership of the Ruler, defendant No. 1. The plaintiff has admitted and accepted this fact as custom while writing of words AJI Umra which means individual and absolute right, title and interest only of defendant No. 1. Thus, the plaintiff himself has been treating defendant No. 1 as to be the absolute owner of the property while executing transactions as a constituted General Power of Attorney of defendant No. 1.
4.10 The inheritance of RAJ and all the properties have been recognized by Article 366 of the Constitution of India according to the answering defendants. This has so been done by the Wealth-tax and Income-tax authorities and this incidence has been claimed to exclude other members of the family from their claim of constituting joint family. Thus, it is claimed by the answering defendants that the admission in the document of alienations made by the plaintiff and recognition of the authorities of the rights of the answering defendants make the claim of the plaintiff factually erroneous and legally misconceived.
4.11. It is contended by the plaintiff that the Charitable trust which has been duly registered as mentioned by the plaintiff in paragraph No. 22A of the plaint cannot be made subject matter of the present Suit, because Civil Court has no jurisdiction to adjudicate upon such points as to right, title and interest of trust properties recorded as Public Trusts under the provisions of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the Act, 1950 ). A Suit in relation to trust properties is liable to be dismissed because the Suit has not been instituted after permission being sought under Section 51 of the Act, 1950. Thus the maintainability of the Suit in this relation has been questioned by the answering defendants. This has also been averred that various disputes raised in the Suit affect the public religious and charitable trusts and purposes and therefore the Charity Commissioner is a necessary party and such party having not been joined, the Suit is required to be dismissed as not maintainable as the same has been filed without prior notice under Section 56 of the Act, 1950.
4.12. It has been contended that brother of defendant No. 1 Himatsinhji is alive and heir of another brother Fatehsinhji is also alive. These two brothers were allowed certain Jagirs or Inams for their maintenance by Grace by deceased Maharao Shri Vijayarajji. After defendant No. 1 succeeding to Gadi, all the properties from Maharao Shri Vijayrajji has also granted or gifted some properties out of grace to both of his brothers. They have not claimed any right in the property inherited by defendant No. 1. They have not challenged in any manner the right, title and interest of defendant No. 1 in respect of the properties inherited by him on demise of Maharao Shri Vijayrajji. Uptill now no partition has taken place in respect of any property, for the fact that there was no partible property, in the hands of successor to Gadi and therefore the Suit of the plaintiff for partition from his father is not maintainable. It is claimed by the answering defendants that the gifts and transactions as made and consented by other members of the Royal Family are not liable to be declared null and void.
4.13 The answering defendants without prejudice to the submissions made hereinabove also submitted that the undivided co-parcenary, if at all taken into consideration, would constitute differently, as would be evident from the following family tree:
MAHARAO SHRI VIJAYRAJJI SAHEB (DECEASED) l l MAHARAO SHRI MADANSINHJI SAHEB (DECEASED) l l
-------------------------------------------------------------------------------------
Hanvantsinji
Bhupatsinhji Prithvirajji (Plaintiff)
(Deft.
No. 4) (Def. No. 3)
-------------------------------------
l
l
l
l
Pratapsinghji
(Minor) Satyajitsinghji (Minor)
(Def.
No. 6) (Def. No. 5)
--------------------------------------------------------------------------------------
Thus, according to this family tree, the contention of the plaintiff that he is entitled to 1/3rd share is not true and he only gets 1/5th of the share.
4.14. Defendant No. 2 Maharani Rajendrakunvarba is mother of the plaintiff and wife of defendant No. 1. She has filed her written statement. She has contended that at the time of her grandfather-in-law Maharao Shri Khengarji, Kachchh State was considered a wealthy State. When she was agreed to be taken in marriage in 1938 Maharaj Shri Khengarji gifted with possession and ownership the Kotadi Baug area with furniture etc. Since then she is the exclusive owner of the said property.
4.15 She has contended that while she was at Bombay, possession of the Southern side of the new bungalow of Kotadi Baug was tried to be taken by defendant No. 4 in her absence. She stated that defendant No. 4 is illegally occupying that premises. She has filed Civil Suit No. 392 of 1980 in the Court of Joint Civil Judge, Bhuj. Defendant No. 2 contended that defendant No. 1 had no right over the Kotadi Baug Palace nor defendant No. 4 gets any right in the said property.
She has contended that the transaction, if at all entered between defendant No. 1 and defendant No. 4 is a sham transaction and against the public policy and the same be declared to be illegal. Her case is that Kotadi Baug is her personal property and cannot be made subject matter of partition. She has further stated that if a partition is ordered then she has equal share with the plaintiff and the defendant.
4.16 Defendant No. 3 has not chosen to file any written statement and he has only appeared as a witness. Defendant No. 4 for himself and defendant Nos. 5 and 6 who are his sons, as father and natural guardian, has filed written statement and has agreed to all the contentions raised by defendant Nos. 1 and 9 and has submitted that he has not separated or got his share in the alleged joint family by virtue of writing dated 30.8.1967 which has been relied upon by the plaintiff. He has denied that there is any Deed of partition between defendant Nos. 3 and 4 as contended by the plaintiff.
4.17 It has been contended by this answering defendant that the sale of agricultural land admeasuring 4 hectares and Kotadi Baug property in respect of defendant Nos. 5 and 6 and defendant No. 4 respectively are legal / valid. It is submitted that the sale made by defendant No. 1 was with lawful right and authority as the sole and absolute owner. Defendant No. 1 had right and authority as sole and absolute owner to execute the transaction and so also create the trusts and such creation of trusts is legal and binding, being valid.
4.18 Defendant Nos. 4 to 6 have filed further written statement to the amended plaint wherein sale of agricultural land bearing Survey No. 124 with consideration to defendant No. 5 and 6 has been defended and also defended the sale made by such defendants in favour of defendant Nos. 14 and 15 as per the Court orders on 18.1.1996.
4.19 Defendant Nos. 7 and 11 have submitted their written statement and claimed as employees of defendant No. 1 and therefore there is no concern whatsoever with the properties sold, transferred, assigned in any manner by defendant No. 1. Defendant No. 7 has contended that act, deeds, and transaction which are done by him and defendant No. 11 are done under express consent and specific instruction of defendant No. 1 and therefore the allegations made by the plaintiff against them are false, baseless and denied. Defendant No. 7 in reply has stated that the sale of agricultural land named Parawadi in his favour is legal and he has become lawful and absolute owner. Thus, he has claimed absolute ownership of the said property, the same being in his actual and physical possession and the same made by defendant No. 1 in his favour is quite legal and valid and the same being reasonable, market value cannot be made. It has also been stated that creation of trust by defendant No. 1 is legal and valid.
4.20 Defendant Nos. 12 and 13 have filed their written statement. They are sisters of plaintiff and daughters of defendant Nos. 1 and 2. They have supported the case of the plaintiff inasmuch as they have submitted that the property belonged to the Joint Hindu Family and were governed by Mitakshara Law. The merger agreement has given no exclusive right to defendant No. 1. They have stated that Section 5(ii) of the Hindu Succession Act are not effective and are ultra vires of the Constitution and the provisions of this Section have now become redundant after 26th Amendment of the Constitution which came into force with effect from 13.12.1971.
4.21 This has been claimed by these answering defendants that the daughters on their marriage did not lose their entitlement to receive their share in the property of their brother or father. The plaintiff has confused himself in this respect to be member of a joint Hindu Family vis-a-vis entitlement of share in partition so far as married daughters are concerned. The defendants have contended that the plaintiff has not specifically pleaded as to which of the articles in his possession and which articles are in possession of defendant Nos. 3 and 6 as defendant No. 1 has expired and claimed 1/6 th share in the Suit property and claimed adjustment from the property which is in possession of the plaintiff, defendant Nos. 2 and 3 when the partition of Hindu Undivided Family takes place.
4.22 This has also been contended that Will dated 17.12.1985 is void ab initio as defendant No. 1 had no right to execute the Will regarding the properties which belonged to Hindu Undivided Family which were ancestral in nature. According to them, the Will is illegal, unauthorized and conveyed no right, title or interest to its beneficiaries. It has been lastly claimed that the entire property held by Maharao as Karta of Hindu Undivided Family be partitioned and the replying defendants be awarded 1/6th share each. In the alternative, it has been prayed that if defendant Nos. 2 and 3 have been given their respective shares by defendant No. 1 late Maharao Shri Madansinhji, then after leaving out the properties as mentioned in Schedule II-B & E, the rest of the property be divided into four shares.
4.23 Defendant Nos. 14 and 15 are purchasers of the land bearing revenue Survey No.
124. They have claimed that the land bearing Survey No. 124 was being sold as per the orders of the Court. They are bona fide purchasers and have paid market value to defendant Nos. 5 and 6. Defendant Nos. 5 and 6 have handed over the actual and physical possession of Survey No. 124 with title. This has also been claimed by these defendants that even if the plaintiff succeeds in the Suit then the property will be protected vide order of the Court at Exh. 190 under which sale was made. It has been prayed that the Suit being bogus, got up and vexatious, deserves to be dismissed.
5. Now we will take up the facts pertaining to Miscellaneous Civil Application No. 73 of 1993. This application has been filed by defendant No. 4 in Civil Suit No. 68 of 1980 for grant of probate of the Will executed by late defendant No. 1. The subject matter of this Will is some part of the property which is subject matter of Suit No. 68 of 1980. Said defendant No. 1 expired on 21.6.1991 at London. He was 81 years old. The last Will and Testament, subject matter of this petition, was executed on 17.12.1985. It has been duly signed and executed in the presence of witness who have also signed the said Will. It bears the Certificate of Dr. M.S. Rajaram who had examined the deceased on the said day and date of the signing and executing of the Will. Ex-Maharao Shri Madansinhji has been certified to be of quite sound mind and good in health. The said Will was kept in safe custody of Bank of India, Bhuj Branch. The Bank had intimated, after hearing the news of demise of Ex-Maharao Shri Madansinhji, that it has in its custody a Will under a sealed cover. This information was communicated to the petitioner. The petitioner took possession of the Will from the bank and thereafter the said sealed cover has been produced with an application in the pending Special Civil Suit No. 68 of 1980 in the Court. The Court has received the said packet sealed cover. The cover was opened in the open Court in presence of the advocates of the parties in the said Suit. After opening, the said Will was kept in the safe custody of Nazir of the Court.
5.1 The applicant in Miscellaneous Application has claimed that this is the last Will in respect of the properties with right and power to dispose of the same by defendant No. 1. Therefore, the applicant has filed the application for grant of Probate/Letters of Administration in relation to the Will dated 17.12.1985 to realize and administer the properties described in the Schedule of the Will. An application under Section 247 of the Hindu Succession Act was also filed for interim orders.
5.2 The plaintiff in Special Civil Suit No. 68 of 1980 has contested the application by filing reply. He has shown his unawareness of the writing dated 17.12.1985 and has denied the purported writing as having been duly signed and executed by defendant No. 1. Certification of the Doctor has also been denied.
5.3 As per the dispute taken in Special Civil Suit No. 68 of 1980, the plaintiff-objector has contended that the public trusts created by the deceased during his life time were illegal and null and void. The properties being ancestral could not have been entrusted to the trust without consent of the co-parceners of the family. The very right of defendant No. 1 to make the Will has been contested. According to the objector, there is no question of the property being subjected to the disposition as made in the Will. The property deserves to be divided in accordance with the prayer made in Special Civil Suit No. 68 of 1980.
5.4 Defendant Nos. 12 and 13 of Special Civil Suit No. 68 of 1980, sisters of the plaintiff in that Suit, have filed Regular Civil Suit No. 42 of 1995. In this Suit, the plaintiffs have stated that they are daughters of late Maharao Shri Madansinhji Saheb of Kachchh who expired on 21.6.1991. It is claimed that during the life time, defendant No. 1 had never revealed that he had ever executed any Will on 17.12.1985. This has also been contended that the property shown in the Will is a joint Hindu Undivided Family and the property being ancestral, defendant No. 1 was only Karta and therefore he had no absolute right to execute the Will in respect of the property which belonged to joint Hindu Family.
5.5 It has also been contended that late Maharao had poor health and consequently of feeble mind and was not in a state of sound mind so as to be competent for disposing of the properties. The Will was executed under influence, misrepresentation, coercion and not with free Will and wish of the executant. It has been claimed that the alleged Will was not legal, proper, correct and more particularly executable, enforceable and operative at law. The said Suit is filed to declare the Will dated 17.12.1985 to be void ab initio, illegal, incorrect, improper, without authority and hence inexecutable.
5.6 This Suit has been contested by defendant No. 4 in Special Civil Suit No. 68 of 1980. It has been contended that defendant No. 1 being Gadi-pati has become absolute owner of the impartible property and thereafter he was at liberty to dispose of the property according to his wish. Until then defendant Nos. 12 and 13 were not parties to Special Civil Suit No. 68 of 1980 and therefore, they were not entitled to any injunction in relation to the properties. It was also stated that to claim proper relief, they should get themselves impleaded as parties in Civil Suit No. 68 of 1980. No relief can be granted to them in this Suit. It may be important to note here that subsequently they have been impleaded as parties in Special Civil Suit No. 68 of 1980.
5.7 On the basis of the pleading of the parties, in Special Civil Suit No. 68 of 1980, the following issues were framed:
1. Whether plaintiff proves the existence of the joint Hindu Family of deceased Ex-Maharao Shri Vijayrajji Saheb prior to February, 1948?
2. Whether plaintiff proves that deceased Ex-Maharao Shri Vijayrajji inherited/succeeded any joint Hindu Family properties? If yes, what are these properties?
3. Whether plaintiff proves that the properties with defendant No. 1 are partible properties and plaintiff and defendant No. 2 have present right to sue for partition as alleged in plaint?
4. Whether the defendant Nos. 3, 4 and 5 prove that the suit properties are impartible and not liable for partition?
5. Whether plaintiff proves partial partition as alleged in plaint para 15 and 16 among defendant No. 1 and his two sons namely M.K. Hanvantsinhji and M.K. Bhupendrasinhji by writing dated 22.3.196 and 30.8.1967?
6. Whether on the aforesaid partition taking place the third and the fourth defendants and their respective families ceased to be members of the Joint Family as stated in paragraph 15 of the plaint?
7. Whether plaintiff proves that he is entitled to reimburse the alleged expenses and cost of management of property known as Ranjit Villa Palace at Bhuj as contended in plaint para 17?
8. Whether plaintiff proves that the defendant No. 1 as former Ruler had no power to alienate the properties vide plaint para 21 as his private and self acquired properties?
9. Whether plaintiff proves the sale deed dated 7.1.1979 in favour of defendant No. 8 by defendant No. 1 is at grossly under value and without power to alienate?
10. Whether plaintiff proves the transfers/donation of properties vide plaint para 21(C) to Public Charitable Trusts (Registered under B.P.T. Act, 1950) as void and not binding to him and transfer of the said properties are illegal and does not vest in said Charitable Trusts, since defendant No. 1 had no power to alienate them?
11. Whether plaintiff proves the sale deed dated 13.12.1978 in favour of defendant No. 4 by defendant no. 1 in respect to properties described in plaint para 21(d) is at grossly under valuation and waste, unreal consideration of alleged H.U.F. Properties as defendant No. 1 had no power to alienate it?
12. Whether plaintiff proves the sale deed dated 13.12.1978 in favour of defendant No. 7 by defendant No. 1 in respect to property described in plaint para 21(e) at grossly under valuation and waste of alleged H.U.F. Properties as defendant No. 1 had no power to alienate?
13. Whether plaintiff proves that the transfers/sales/donations by defendant No. 1 vide plaint para 21(a) to 21(e) are without power to alienate and also at grossly under valuation, unreal and without legal necessity of H.U.F. and to defeat and delay the alleged right of partition of plaintiff as alleged in plaint para 20 & 22 and all those properties with their income be called back into crops for partition as prayed by plaintiff in plaint para 33?
14. Whether the defendant Nos. 3, 4 and 5 prove that plaintiff has no right to sue for partition?
15. Whether the plaintiff is entitled to partition of the properties set out in the plaint by metes and bounds and to a one third share therein & on partition who are the other persons entitled to share? If so, what are their respective shares?
16. Whether plaintiff has not joined all the necessary and proper parties? If yes, what is the effect on the suit?
17. Whether the defendant Nos. 3, 4 and 5 prove that the plaintiff has no right to file present suit against late defendant no. 1 as the suit properties are belonging to the predecessor of defendant No. 1 i.e. Vijarajji?
18. Whether the defendant Nos. 3, 4 and 5 prove that plaintiff is estopped from contending that the properties succeeded by defendant No. 1 as Rajah estate are joint family properties and liable to partition in view of his admissions in Deeds para 10 of the written statement Exh. 72?
19. Whether the properties set out in para 7 of the plaint were purchased by the first defendant as the Karta of the Joint Family from out of or with the aid of joint Family fund and whether such properties are held by him as such Karta?
20. Whether the movable properties and assets set out in paras 9(a) to 9(k) of the plaint are joint family properties?
21. Whether the defendant Nos. 3, 4 and 5 prove that the first defendant inherited the Raj as per family custom of inheritance as alleged to the written statement?
22. Whether the defendant Nos. 3, 4 and 5 prove that whether the family custom of inheritance of Raj and incidentally of all properties devolving on a single member of the family to the exclusion of the other members of the family is ancient, settled, consistently followed, without being challenged from time immemorial as alleged in paragraph 4 of the written statement?
23. Whether this Court has no jurisdiction under Bombay Public Trusts Act, 1950, to adjudicate upon disputes as to right, title and interest of trust properties (alienated by defendant No. 1) vide Trusts enlisted in para 22A of written statement Exh. 72?
24. Whether the present suit is maintainable without prior permission under Section 51 of Bombay Public Trusts Act, 1950 as alleged in written statement at Exh. 72 para 22-B?
25. Whether the Charity Commissioner is necessary party? If yes, suit is not maintainable without joining him as party?
26. Whether the plaintiff proves that alienation of property bearing survey No. 124 of Bhuj sim in favour of defendant Nos. 14 and 15 are illegal, invalid and not binding to plaintiff? If yes, what is the legal consequences?
27. Whether plaintiff is successful to establish case of partition? If yes, upon what property? Whether any preliminary decree or final decree is required to be passed? If yes, upon what property preliminary and upon what property final?
28. What order and decree?
In Civil Miscellaneous Application No. 73 of 1993, the following issues are framed at Exh. 76:
1. Whether the petitioner is entitled to probate of the Will dated 17.12.1985 of the late Maharao Shri Madansinhji Vijayrajji Jadeja, as prayed for?
2. Whether the objectors names -
(i) Mr. Yuvaraj Prithvirajji M. Jadeja
(ii) Mrs. Maharani Ranendrakunvarba
(iii) Mr. M.K. Bhupatsinhji M. Jadeja
(iv) Mrs. Brijrajkunvarba
(v) Mrs. Narendrakunvarba are barred from taking benefits of interest under the Will in question on account of their challenge of the Will in terms of clause 12 of the Will?
3. Whether the objectors prove that the deceased late Maharao Shri Madansinhji had no authority or right to make the Will in question?
4. Whether the objectors prove that the conditions imposed in Will is illegal and invalid? If yes, what is its effect?
5. What order?
In Regular Civil Suit No. 42 of 1995, the following issues have been framed at Exh. 28:
1. Whether the plaintiffs prove that the late Maharao Shri Madansinhji had no right or authority to make Will dated 17.12.1985 as contended in the plaint?
2. Whether the plaintiffs are entitled to declaration and injunction as prayed or?
3. What order and decree?
6.1 After framing the issues, the trail Court recorded the evidence of the parties and had recorded its findings. Issue Nos. 1 to 4, 8 to 15 and 17 to 22 in Special Civil Suit No. 68 of 1980 were decided together as the questions which were required to be answered in these issues were overlapping. It has been recorded during the course of hearing by trial Court that the plaintiff during the course of his examination in the Court when subjected to cross-examination has admitted that appellant Yuvaraj used to become the King of Kachchh State. He used to become the owner and proprietor of all the properties of the State. After demise of Maharao Vijayrajji, defendant No. 1 became Maharaj. He has also admitted that defendant No. 1 had assigned him the property known as Chavada Rakhl . He had admitted to the family custom that eldest son of the King used to become Raja and this has been the practice since last 100 to 150 years. This witness has also admitted that the document at Exh. 239 was executed while defendant No. 1 enjoyed the sovereignty of the King. This has also been admitted by the plaintiff in his examination that in 1942 Maharao Shri Vijayrajji became Ruler of Kachchh and he was the sole owner of the entire properties.
6.2 The plaintiff has also chosen to examine witness Rudrasinhji Jethisinh Jadeja. This witness has, inter alia, deposed that all the members of the family used to have equal share in the movable properties while immovable properties belonged to the State. This witness has further deposed in his examination that the person who used to receive the property as a Ruler could distribute the same according to his wish and in the property of the Ruler, there was no share, but in the private property there was partition according to the Hindu Law. He has admitted in cross examination that the Ruler used to give the members of the family the property according to his wish for their maintenance. He being the member of the Royal family only received right of Jagir which was given to him and he could have distributed the property of Tera Jagir as per his wish, but not by way of partition. This witness has admitted in cross-examination that the Ruler or King was independent and his brothers were not entitled to share in the property as per their wish. This witness has admitted that defendant No. 1 during his life time has a right to sell the properties, to create the trusts and to give it in donation and even if Yuvaraj desired to have the property, then it was to be made through a lawful transaction.
6.3. Defendant No. 2 since deceased had also appeared as witness. She has deposed that the property except Kotadi Baug was Hindu Joint Family property which was not partitioned and which was managed by her husband as Karta. This witness has deposed that Kotadi Baug was received by her in grant by her grandfather-in-law Khengarji Bava in the year 1938 and since then she is in possession which is undisturbed. This has been though asserted that it was given as a gift to her by her grandfather-in-law but has admitted in cross-examination that defendant No. 1 has not executed any writing in her favour regarding Kotadi Baug during his life time.
6.4. Defendant No. 3 has been examined as witness, though he has not filed any written statement. This witness has stated, in cross-examination that the property which he had received was sufficient to show that he had no right in other properties. Defendant No. 4 has been examined and he has deposed, inter alia, that the suit property was exclusively in possession and ownership of defendant No. 1 and no person including him had any right, title or interest in the said properties. He has also stated that Maharao Shri Vijayrajji was not Karta of Hindu Joint Family but the property which he possessed was as a Ruler. According to this witness, no member of the family has a right to claim maintenance as a matter of right to the property of defendant No. 1. Maintenance was given to the family members according to the wish of defendant No. 1 and not of right. It has been stated by this witness that in the year 1978 defendant No. 1 had sold the property of Kotadi Baug for Rs. 1,40,000/- and since then he was in possession of that property . He had denied that defendant No. 2 had any right, title and interest in the property. This witness has claimed that Survey No. 124 was sold by his father to his sons at market price. This witness has also asserted that there was a custom in the family that Yuvaraj used to get the Gadi and he was entitled to the entire properties and he was at liberty to dispose of the properties according to his wish and with free will and nobody had right, title and interest in his properties and nobody could claim anything as a matter of right.
6.5. Defendant No. 12 in in her statement has, inter alia, stated that Kotadi Baug belonged to her mother as it was given to her prior to 1948 and since then it is in possession of her mother. However, it was admitted that she has not seen any document pertaining to Kotadi Baug. She has further admitted in her cross-examination the manner in which her grandfather had inherited the Kachchh State and in the like manner as a Ruler the father had all authority. Defendant No. 13 in her statement has, inter alia, stated the history about gift of Kotadi Baug to her mother. She has admitted in her cross-examination that her father had sold the property of Kotadi Baug to his brother which has given rise to the quarrel and this incident took place in the year 1978. She has admitted that new bungalow of Kotadi Baug is in possession of defendant No. 4.
6.6. On behalf of the plaintiff Tulsidas Parshotam Bora has been examined as witness. He has been examined to show the correctness and validity of certain documents whereby defendant Nos. 14 and 15 purchased certain land. This witness was not the witness on the core issue of the dispute.
6.7 After narrating the entire evidence and certain documents executed by the parties, learned trial Judge has proceeded to decide the Civil Suit, considering various incidences of Hindu Law incorporated in the books of Shri Mulla and Shri Gupte and has considered various citations relied on by the parties. Considering the impact of law and arguments advanced on behalf of the plaintiff, trial Court came to the conclusion that the plaintiff in his examination has admitted that the eldest son of the King used to become Ruler and the plaintiff has agreed to the pedigree shown to him. The plaintiff has admitted that since the period between 100 and 150 years only eldest son of the Ruler had become RAJA. It has also been admitted by the plaintiff that Vijayrajji Bava became Ruler in 1942. He was the sole and sovereign owner of the properties which are shown in the plaint. Learned trial Judge has finally held thus:
The evidence which comes out in para 85 of the deposition would be sufficient to come to the conclusion that the property is impartible in nature and the suit property is not the H.U.F. property and therefore, the suit would not be maintainable.
6.8 Learned trial Judge has examined Lekhs which have been narrated by him in the judgement and has come to the conclusion that in such recitals there is no reference of joint property or joint possession. Thereafter, learned trial Judge has proceeded to examine the conduct of the plaintiff and has narrated that in executing the document as a constituted Power of Attorney of defendant No. 1, the plaintiff has used the word Aji Umra which means sole and absolute owner whereby he admitted the impartibility of estate and sovereignty of defendant No. 1. This statement is contained in Exh. 240. In another document being Exh. 242, 244 and 245 benefits have been driven by the plaintiff. In these documents there is recital to the same effect. The plaintiff has not disputed all these documents because they were in his favour. He has only disputed such acts of defendant No. 1 whereby other persons have received the benefit. The trial Court has held that such conduct of the plaintiff is improper.
6.9 The trial Court has then proceeded to distinguish the rule of survivorship and the rule of primogeniture. According to the trial Court, in the rule of survivorship which is salient feature of the H.U.F. the right is attained by birth. The test, according to the trial Court, is that if there was a right of survivorship then defendant No. 1 would have right by birth in the properties in the hands of Maharao Shri Vijayrajji and in the like manner, the plaintiff would be entitled or should have right by birth in the suit property but if it is not so then there was no right. Learned trial Judge says that he has discussed the leagal aspects and according to those, the property was succeeded by a single member i.e. defendant No. 1 after the death of his father. To such properties, succession did not open during his life time. Properties devolved on single heir. The rule of primogeniture was prevailing in Kachchh since beginning and the rule of primogeniture has attained statutory colour and the rule of survivorship has not been established by the plaintiff but he has only assumed it. It was for the plaintiff to prove that the property was H.U.F. And he has share in the property by birth which he has failed to prove. Then learned trial Judge has referred to book of Mulla. According to Mulla, female cannot become co-parcener. Therefore, defendant Nos. 12 and 13 cannot claim any interest in the property. Trial Court has also held that the suit property cannot be said to be H.U.F. Property and thus it cannot be said that the children had right by birth. Trial Court has thus held that the disputed property is impartible property which devolved on a single person i.e. defendant No. 1, holder of the property who was alone entitled to the possession and enjoyment of the property and the same could be disposed by the holder without intervention of other members of the family. The other members of the family were not entitled for maintenance as of right and it devolved on a single person.
6.10 Trial Court has come to the conclusion that rule of primogeniture was a custom in Kachchh. As per the family custom of succession or inheritance it was on the demise of the Ruler, his eldest son succeeded to the Gadi i.e. defendant No. 1. All the properties were in his possession and enjoyment and whatever property devolved in the succeeding person i.e. defendant No. 1 was not subject to any liability for maintenance of any members of the Royal Family and this family custom of inheritance was observed as a matter of right since the time immemorial. It continued to be followed and observed without violation by the Royal Family. Thus, trial Judge has finally held as under:
From the evidence on record, I can safely come to the conclusion that on demise of Maharao Shri Vijayrajji the defendant No. 1 has succeeded to the Gadi according to the rule of primogeniture which means the inheritance or succession to Gadi or Raj and succession to properties held by deceased Maharao Shri Vijayrajji and the property received by defendant No. 1 was inherited as impartible property as an incidence to his succeeding to his Gadi or Raj on demise of Maharao Shri Vijayrajji as per family custom followed since the time immemorial without challenge or dispute. Therefore, the plaintiff and other defendants would have no right, title or interest as a matter of right in the property of late Maharao Shri Madansinhji defendant No. 1 .
Thus, it has been held finally by the trial Court as under:
In view of the discussion made hereinabove in details on factual and legal aspects, I can come to the conclusion that the plaintiff has failed to prove the existence of joint family of deceased Ex-Maharao and the plaintiff has further failed to prove that the Ex-Maharo Vijayrajji inherited joint Hindu family property and has further failed to prove that the defendant No. 1 had acquired partible property and therefore, the plaintiff and defendant No. 2 have at present right to sue for partition and I answer issue Nos. 1 to 3 in the negative. In view of the discussion which is on record, I can safely come to the conclusion that the defendant Nos. 3, 4 and 5 have proved that the suit properties are impartible and not liable to be parted with. So far as the contention of the plaintiff for the sale deeds which are executed on 13.12.1978 are undervalued has no merit because the plaintiff nor any person has adduced any evidence regarding the market value and as I have held that the property is impartible in nature and the Ruler had powers to alienate the property and the defendant No. 1 is sole and absolute owner and rule of primogeniture is applicable in the resent case, the plaintiff is not entitled to any share in the property and therefore, I answer issue Nos. 8 to 13 in the negative, issue No. 14 in the affirmative, issue No. 15 in the negative, issue No. 17 in the affirmative, issue No. 18 in the affirmative, issue No. 19 in the negative, issue No. 20 also in the negative and issue Nos. 21 and 22 in the affirmative.
6.11. On issue Nos. 5 and 6, the trial Court has considered that the examination of the writing dated 22.3.1960 and 30.8.1967 produced at Exh. 284 and Exh. 560 respectively, it is clear that the said writings did not confirm any partial partition between the parties.
These writings only prove sovereign power of defendant No. 1. Grant of Jagir by defendant No. 1 was as per custom of Royal Family. This has been concluded by the trial Court that defendant Nos. 3 and 4 were given amount for their maintenance and residence only and no inference can be drawn from the said documents that such documents were in the nature of partial partition.
6.12. As regards issue No. 7 which related to reimbursement of the expenses and cost of management of property known as Ranjit Villa Palace at Bhuj. It appears that, according to trial Court, the plaintiff has not given any specific detail or particulars about the cost in his oral evidence nor he has produced any document to show that he had incurred such expenses and therefore this issue has been answered in negative.
6.13. As regards issue Nos. 16, defendant Nos. 12 and 13 had not been added as party initially but since they have been joined as party subsequently, the issue has been answered in negative.
6.14 Issue Nos. 23 to 25 are regarding implication of Section 42 of the Bombay Public Trust Act. Trial Court has held that the plaintiff was in law required to join Charity Commissioner as party to the Suit which he has not cared to do so. The properties transferred to the said trust from impartible estate of defendant No. 1. He was at liberty to deal with such properties in the manner he liked as sole and absolute owner. Proper evidence, according to the trial Court, has not been produced by the plaintiff regarding exact value prevailing at the time of formation of the trust of these properties. According to trial Court, defendant No. 1 has settled in all nine trusts. The suit of the plaintiff regarding trusts was not maintainable because neither the said trusts nor the Charity Commissioner was joined as necessary party. Besides this, the consent of the Charity Commissioner as required under Section 51 of the Bombay Public Trust Act was not obtained. Therefore, the trial Court has held that the trust property is beyond the competence of the Court and no relief can be granted in this relation. It has also been mentioned by the trial Court that the plaintiff has not exhausted any remedy under the Bombay Public Trust Act when the trust came to be settled. Therefore, issue Nos. 23 and 24 have been answered in the affirmative and issue No. 25 has been answered partly in the affirmative because the Suit was not maintainable against the dispute of the trust only.
6.15 In relation to issue No. 26, the plaintiff has chosen to examine himself. In cross-examination by learned advocate for defendant Nos. 14 and 15, the plaintiff has deposed that he has no knowledge that the property bearing Survey No. 124 admeasuring 11 acres 35 gunthas was sold to defendant Nos. 14 and 15 by defendant Nos. 5 and 6 on 19.1.1996 by registered Sale Deed Nos. 407 and 408. This witness has denied that defendant No. 1 had sold the said property to defendant Nos. 5 and 6 by registered Sale Deed dated 13.12.1978. This witness has also ignored to show as to whether the revenue was paid for Survey No. 124 by defendant Nos. 5 and 6. The trial Court has observed that at the time when the Sale Deed was made, there was no injunction in existence. Thus, the trial Court came to the conclusion thus:
When admittedly, the registered Sale Deed was executed in respect of the disputed land by petitioner No. 1 in favour of petitioner Nos. 3 and 4, who were non-agriculturists the consequences laid down for such invalid transfer in the provisions of Section 122 would follow and the transferor cannot set at naught these consequences simply by executing a subsequent Sale Deed which may not violate the provision of Section 89(1). In the instant case, the earlier registered Sale Deed was not cancelled by any registered instrument nor did the petitioner no. 1 take any steps under Section 39 of the Specific Relief Act, for the cancellation of the instrument.
It has further been held by the trial Court as follows:
It appears that the transactions which have been entered by the defendant No. 1 were by grant or by registered Sale Deeds as per custom prevailing in the Royal Family. As he - defendant No. 1 was the sole and sovereign owner of the impartible estate even after the merger, he was the owner of the private property and therefore, it is not open for the plaintiff to doubt the transaction as the defendant Nos. 14 and 15 are claiming through the right, title and interest of defendant No. 1 and subsequently, defendant Nos. 5 and 6, I can safely come to the conclusion that the plaintiff has failed to prove that alienation of the property bearing Survey No. 124 of Bhuj sim in favour of defendant Nos. 14 and 15 are illegal, invalid and not binding to the plaintiff and therefore, I answer issue No. 26 in the negative.
Finally, the trial Court has held thus:
So far as the disputed property was concerned and the defendant Nos. 14 and 15 were put into confidence which have permitted them to purchase the land and the defendant Nos. 14 and 15 have purchased the valuable stamp after the verdict of this Court was passed for which according to me, should not be penalised because ordinary men like defendant Nos. 14 and 15 have respected the verdict of the Court and it was on the assurance of the defendant Nos. 4 to 6 that the stay was not operative and there was no pending litigation and at that time the documents were executed in favour of the defendant Nos. 14 and 15. In my opinion, the defendant Nos. 14 and 15 should not be penalised in reposing confidence in defendant Nos. 5 and 6.
Ultimately, issue No. 27 was decided by the trial Court in the following manner:
In view of my findings on the issues Nos. 1 to 26 at length and in detail, I come to the conclusion that the plaintiff is not successful in establishing his case of partition and therefore, he would not be entitled for relief of either preliminary decree or final decree and therefore, I answer issue No. 27 in the negative.
6.16. The trial Court while deciding Regular Civil Suit No. 42 of 1995 and Civil Miscellaneous Application No. 73 of 1995, has concluded in the following manner:
It is pertinent to note here that at the time the defendant No. 1 had executed the Will, no one of the family members were present and therefore, under such type of circumstances it would be necessary to believe the deposition of Shri Maheshbhai Vasantray Anjariya who is the eye witness before whom the document which is produced at Exh. 525 was signed and he has also signed as a witness in the presence of Shri B.S. Jadeja and has also identified the certificate of Dr. M.S. Rajaram. Under these facts and circumstances, it cannot be said that the Will was signed by the defendant No. 1 under undue influence and cannot be further said that it was signed under duress.
It has further been held by the trial Court as follows:
It must be held that the holder of an impartible estate has the power of alienation not only by transfer inter vivos but also by a Will, even though the disposition by Will may altogether defeat the right of survivorship of the junior members of the family.
The trial Court has further held in the judgement as under:
In the present petition, the execution of the Will is proved with the help of oral testimony of the executor of the Will and the attesting witnesses namely Maheshbhai Vasantray Anjariya vide Exh. 403. As under Section 66 of the Evidence Act, the signature of the testator is proved and at the same time, it is also proved that the testator at the relevant time was in sound state and disposing state of mind and was capable to understand the nature and effect of the disposal and so, evidence adduced in support of the Will is distinguished, satisfactorily and sufficient to prove the sound disposing state of mind of testator and signature of the testator is required to be proved by law. Further, Will which is produced at Exh. 525 bears the initial corporated testator on each of the 12 pages and nothing incriminating is found in the cross-examination, for examining for the proving the Will. The second thing to be noted here is that testator was of sound state of mind and that is certified by the Doctor after the execution of the Will and that too, without any serious illness he died which appears from the evidence of the defendants Nos. 12 and 13 of Special Civil Suit No. 68/80 and the plaintiff in Regular Civil Suit No. 42/95. The probate Court is not a Court of construction and cannot embark upon inquiry as to when the property mentioned in the Will was acquired and as to what is the effect of inclusion of that property at a particular place in a Will coupled with a fact that upon which particular and/or specific condition being imposed in the Will so as to become entitle for the legatees/benefits. It would not be competent for the probate Court to determine the question as to whether the testator acquired the power to dispose of the property, which he purports to dispose of by his Will. The only question that the Court of probate has to determine is as to whether the document sought to be probated did in fact dispose of the property. The functions of the probate Court are to ascertain whether the Will in question is lawfully executed by the testator in a sound disposing state of mind, without coercion or undue influence and it has been duly attested by the witnesses, as required by law. The probate Court is required to determine whether the document is of testamentary nature and whether the executor applying for the probate is entitled to be constituted the legal representative of the deceased. The primary function of the probate Court is to deal with the factum and due execution of the Will and it would not go into question of validity of the provisions of the Will. A Court of probate will construe the Will so far as necessary to determine what documents should be admitted to probate and to whom administration should be granted.
Finally, it was held by the trial Court as follows:
Under these facts and circumstances, I come to the conclusion that the petitioner of Civil Miscellaneous Application No. 73 of 1995 has made out the genuine case for obtaining the probate and the plaintiff of Regular Civil Suit No. 42 of 1995 have failed to prove that the late Maharao Shri Madansinhji had no right or authority to make the Will dated 17.12.1985 as contended in the plaint and therefore, I answer issue No. 1 in Civil Miscellaneous Application No. 73 of 1993 in the affirmative and answer issue No. 1 of Regular Civil Suit No. 42/95 in the negative. In view of the above discussion at length regarding legality of the Will, I come to the conclusion that the objectors have failed to prove that the deceased Maharao Madansinhji had no right, authority to make the Will in question and therefore the plaintiffs have also failed to claim declaration and injunction and therefore, I answer issue No. 3 in Civil Miscellaneous Application No. 73/93 in the negative and issue No. 2 of Regular Civil Suit No. 42/95 also in the negative.
6.17 The trial Court deciding the issue Nos. 2 and 4 of Civil Miscellaneous Application No. 73 of 1993 has held as under:
In the present case the objectors are the family members and the defendant No. 4 Shri K.S. Hanvantsinhji is to be appointed executor, Chairman and he can select two more persons to act executors along with him. Under these circumstances, I do not express my opinion that the objectors are debarred from taking benefit or interest under the Will in question on account of their challenge of Will in term of Clause 12 of the Will but I leave it to the executor who is brother of the objectors Nos. 1, 3, 13 and 14 and are children of objector No. 2 and I answer these issues accordingly.
As I have hold that the executor, chairman will incorporate the clause 12 of the Will who is family member of the objectors, I can safely come to the conclusion that the conditions imposed in the Will is legal and valid and therefore, I answer issue No. 4 accordingly in the negative.
6.18. Regarding issue No. 27A which related to the proprietary right of defendant No. 2, no issue was framed in this regard at the initial stage but was framed at the time of judgement to decide the controversy between the parties. In this case it was held by the trial Court thus:
The document of Kotadi Baug place is produced in the present suit at Exh.
554. Now, if we consider the evidence of the parties, one thing becomes clear that there was a custom of the Royal Family to give the land in grant or rent but there is no custom to keep the property orally and therefore, the evidence of Rajmata Rajendrakunvarba that the property named Kotadi Baug was given to her long back in the year 1938 by her grandfather-in-law does not inspire confidence. On the contrary, the defendant No. 4 has proved the execution of the document of Kotadi Baug from the evidence of the other witnesses and if we consider the document at Exh. 554, it becomes clear that the defendant No. 1 had sold the property of Kotadi Baug to defendant No. 4 and therefore the defendant No. 4 is the owner of the property.
As defendant No. 2 has failed to show by any single document to her ownership right over the property known Kotadi Baug and as there is sufficient evidence on record to show that the Kotadi Baug palace was sold by the defendant No. 1 to defendant No. 4 and I answer this issue No. 27A in the negative.
6.19 The trial Court has disposed of issue No. 27B relating to grant of interim share in the form of maintenance. This was denied as the application was moved at the end of the trial and held that defendant No. 2 would not be entitled to share in the property. Therefore, she would not be entitled to any interim maintenance. Learned trial Judge has also made observation regarding Civil Miscellaneous Application No. 73/1993 in which defendant No. 2's right to residence and that now since defendant No. 2 is residing there, it is not necessary to go into those details. Ultimately, Special Civil Suit No. 68 of 1980 is dismissed by the trial Court. In Civil Miscellaneous Application No. 73 of 1993 letter of administration/probate was ordered to be issued in favour of the applicant in that application and hence the application was disposed of . Regular Civil Suit No. 42 of 1995 was dismissed.
7. Assailing the judgement of the trial Court, learned counsel for the appellant submitted that the trial Court has erred in construing the suit properties as joint family properties. The properties could not by any stretch of imagination be construed to be private properties of defendant No. 1. He had no independent source of income. Therefore, the properties were joint family properties and therefore required to be partitioned. Following the principles of Hindu Law, every co-parcener has share in the joint family property and he can ask for its partition.
7.1 It is contended that the contesting respondent has raised the plea of the property being impartible. This plea has been raised on the basis of family custom. The same has been accepted by the trial Court in answering issue No. 4 in affirmative. The appellant has contested that a property which is impartible by custom can never be construed a separate or exclusive property of holder thereof. It has been contended that defendant No. 1 has unequivocally admitted in his written statement that the properties were impartible. It has also been contended on behalf of the contesting defendant that he has inherited as eldest male member of the family to the exclusion of other members of the family on account of the rule of primogeniture and the custom of impartibility. The contention of the appellant is that this argument of the contesting defendant cannot stand the test of law in treating the properties in question as to be separate or exclusive properties of defendant No. 1. Such properties are always to be available for partition and it cannot be set apart by following the principles of Hindu Law as it stood and after advent of Hindu Succession Act, 1956 (hereinafter referred to as the Act of 1956 ). The appellant has relied on the decision of the Hon'ble Supreme Court in the case of PUSHPAVATHI VIJAYARAM VS. P. VISWESWAR reported in AIR 1964 SC 118 in particular paragraph No. 12 which reads as under:
We would now revert to the dispute, between the plaintiff and defendants 1 and 2. In dealing with this dispute, it is necessary to consider some points of law which have been argued before us. The first point which must be examined is in regard to the character of an impartible estate such as that which the Vizianagram family owns. Since the decision of the Privy Council in Shiba Prasad Singh Vs. Rani Prayag Kumari Debi, 59 Ind App 331: (AIR 1932 PC 216) it must be taken to be well-settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate. If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family. In the illuminating judgement delivered by Sir Dinshah Mulla for the Board, the relevant previous decisions bearing on the subject have been carefully examined and the position of law clearly stated. In the case of an ordinary joint family property, the members of the family can claim four rights: (1) right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance; (4) the right of survivorship. It is obvious from the very nature of the property which is impartible the first of these rights cannot exist. The second is also imcompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj Kuari V. Deoraj Kuari 15 Ind App 51: ILR 10 All 272 (PC) and the First Pittapur case Venkata Surya V. Court of Wards, 26 Ind App 83 1 ILR 22 Mad 383 (PC). Even the right of maintenance as a matter of right is not applicable as laid down in the Second Pittapur case Ram Rao V. Raja of Pittapur 45 Ind App 148 : ILR 41 Mad 778: (AIR 1918 PC 81). The 4th right viz., the right of survivorship, however, still remains and it is by reference to this right that the property, though impartible, has, in the eyes of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successionis. Unlike spes successionis, the right of survivorship can be renounced or surrendered.
7.2 He has also relied on the Commentaries on Hindu Law by S.V. Gupte, 1981 Edition, Volume I and has asserted that there is only one distinguishing feature of old Hindu Law that the right of partition, right of maintenance and restriction on the right of head of family of alienation are missing but the property remains as joint Hindu property.
7.3 In continuation of the aforesaid submissions, the appellant has submitted that respondent No. 1 was entitled to hold the suit properties as joint family properties with unfettered right to him to cause alienation thereof and thereupon to deny partition in respect of the same at the instance of his family members so long as the Suit properties were governed by the custom of impartibility. According to the appellant, the said custom of impartibility along with the rule of primogeniture ceased to exist with the advent of the Act of 1956 in view of Section 4 thereof and as a consequence of Constitutional amendment with effect from 17.6.1986.
7.4 The appellant stressed that with the advent of the Act of 1956, Section 4 made the properties partible in nature. Thereafter there was no need to wait for the succession to open upon the demise of the last holder of the impartible estate, in view of for the application of Section 4 of the Act of 1956. He has placed reliance on a Division Bench decision in the case of PRATAPSINHJI N. DESAI VS.
C.I.T. (GUJ) reported in 139 ITR 77 and another decision in the matter of MAHARAJ SHRI MANVENDRASINHJI VS. RAJMATA reported in 1999(1) GLR 261.
7.5 The appellant has further contested that some of the contesting respondents have relied on Section 5 of the Act of 1956. Such reliance is wholly misconceived. The said Section according to the appellant, would act an exception to the proposition flowing from Section 4 of the Merger Agreement wherein it has been provided that respondent No. 1 as last Ruler of Kachchh will hold the properties to the exclusion of other family members. Such right was not created in the answering respondent for the first time. It was only recognition of a right which was already existing in the family and devolution of the family property by rule of primogeniture of respondent No. 1. This aspect has been admitted by defendant No. 1 that Merger Agreement simply recognized the family custom of impartibility and rule of primogeniture pursuant to which defendant No. 1 was holding the suit properties. It has thus been argued by the appellant that the Merger Agreement has simply kept alive of family custom of impartibility. Therefore, it cannot be said that the suit properties descended on defendant No. 1 by the Merger Agreement for the first time, invoking the impact of Section 5(ii) of the Act of 1956. In support of his argument, learned counsel for the appellant has placed reliance on a decision in the case of BHAIYA RAMANUJ VS. LALU MAHESHANUJ reported in AIR 1981 SC 1937 particularly paragraph Nos. 10 to 14 and 18, the relevant is as follows:
A bare perusal of Section 4 would indicate that any custom or usage as part of Hindu law in force will cease to have effect after the enforcement of Hindu Succession Act with respect to any matter for which provision is made in the Act. If rule of lineal primogeniture in Nagaruntari estate is a customary one it will certainly cease to have effect, even though it was part of Hindu law.
para 18 This analysis of the Regulation leads to the further proposition that it did not by its own force declare that any estate would descend to a single heir. All that it did was to keep alive the custom sanctioning the rule of primogeniture entailing impartibility of the estate. The rule or custom was thus recognised as such and no estate by the terms of the Regulation itself was made to descend to a single heir. In this view of the matter Cl. (ii) of Section 5 of the Hindu Succession Act does not cover such a custom.
7.6 Learned counsel has placed reliance on the decision of a Division Bench in the case of PRATAPSINHJI N. DESAI VS. CIT (GUJ) (supra) and another decision of another Division Bench of this Court in the matter of MAHARAJ SHRI MANVENDRASINHJI VS. RAJMATA (supra).
7.7 Learned counsel for the appellant further argued that even if it is presumed that after the Act of 1956, the custom of impartibility was presumed to have existed, the same would get vanished after 26th Amendment of the Constitution of India which came into effect from 28.12.1971. With the promulgation of the new State, erstwhile Ruler enjoyed all the private properties under special status not on account of Merger Agreement but due to Articles 291 and 362 of the Constitution of India which incorporated terms of Merger Agreement.
When these Articles were repealed by the 26th Amendment of the Constitution of India, it goes without saying that all rights give to the Rulers under a special status were lost. Reliance has been placed by learned counsel for the appellant on a case decided by the Hon'ble Supreme Court in the matter of RAGHUNATHRAO GANPATRAO VS. UNION OF INDIA reported in AIR 1993 SC 1267, relevant observations are reproduced as follows:
para 67 - After the judgment of Madhav Rao Scindia (AIR 1971 SC 530), the twenty-sixth amendment was brought to overcome the effect of the judgment. The objects and reasons of the twenty-sixth amendment makes the position clear, which read thus:
"The concept of rulership, - With privy purses and special privileges unrelated to any current functions and social purposes, was incompatible with an egalitarian social order. Government, therefore,. decided to terminate the privy purses and privileges of the Ruler of former Indian States. It was necessary for this purpose, apart from amending the relevant provisions of the Constitution to insert a new article therein so as to terminate expressly the recognition already granted to such Rulers and to abolish privy purses and extinguish all rights, liabilities and obligations in respect of privy purses. Hence this Act."
para 75 - The agreements entered into by the Rulers of the States with the Government of India were simple documents relating to the accession and the integration and the "assurances and guarantees"
given under those documents were only for the fixation of the privy purses and the recognition of the privileges. The guarantees and the assurances given under the Constitution were independent of those documents. After the advent of the Constitution, the Rulers enjoyed their right to privy purses, private properties and privileges only by the force of the Constitution and in other respects they were only ordinary citizens of India like any other citizen, of course, this is an accident of history and with the concurrence of the Indian people in their Constituent Assembly.
para
76 - Therefore, there cannot be any justification in saying that the guarantees and assurances given to the Rulers were sacrosanct and the Articles 291 and 362 reflected only the terms of the agreements and covenants. In fact as soon as the Constitution came into force, the Memoranda of Agreements executed and ratified by the States and Union of States were embodied in formal agreements under the relevant Articles of the Constitution and no obligation flowed from those agreements and covenants but only from the constitutional provisions. To say differently, after the introduction of Articles 291 and 362 in the Constitution, the agreements and covenants have no existence at all. The reference to Covenants and Agreements was casual and subsidiary and the source of obligation flowed only from the Constitution. Therefore, the contention urged on the use of the words 'guaranteed' or 'assured' is without any force and absolutely untenable.
7.8 Learned counsel has also relied on a Division Bench decision of this Court in the matter of PRATAPSINHJI N. DESAI VS. C.I.T. (Guj) (supra) in which at page 93 it is held as under:
Section 4 of the Act 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 the Act ceases to apply to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. It is, therefore, clear that the provisions of Aliyasanthana law whether customary or statutory will cease to apply, in so far as they are inconsistent with the provisions of the Hindu Succession Act Same view has been taken by the Punjab High Court in two decisions in (1) SMT. TARO VS. DARSHAN SINGH (AIR 1960 Punj. 145) and (2) HANS RAJ BASANT RAM VS. DHANWAT SINGH BALWANT SINGH (AIR 1961 Punj 510).
We are in respectful agreement with the observations made in the decisions of the Punjab High Court as to the construction and true effect of S. 4 of the Hindu Succession Act. We must, therefore, reject the contention of the Revenue that the estate would still continue to be impartible estate till the succession opened on the demise of Narendrasinhji (sic). This vew impressed the Tribunal in its earlier decision when it allowed the appeal of the Revenue pertaining to the assessment of 1965-66. We are of the opinion that the present contention of the Revenue is merely a projection of that view which in our opinion, with respect, not warranted by the clear provisions of S. 4 of the Hindu Succession Act. The first contention of the learned Advocate-General must, therefore, be accepted.
7.9 Learned counsel has further relied on a Division Bench decision of this Court in the matter of MAHARAJ SHRI MANVENDRASINHJI VS. RAJMATA (supra) particularly paragraph Nos. 23 and 24 which will be dealt with later.
7.10 Learned counsel for the appellant has strenuously urged that there cannot be any application of law as laid down by a Division Bench of this Court in the matter of D.S. MERAMWALA VS. BA SHRI AMARBA reported in 1968 GLR 609 for two reasons: The facts of that case clearly demonstrate that the transactions involved in the case were prior to the promulgation of the Act of 1956 and therefore this Court had no occasion to consider the impact of Section 4(ii) of the Act of 1956 and therefore the ratio of this case cannot be applied in deciding the present controversy and in this relation learned counsel for the appellant has relied on a case decided by the Bombay High Court in the matter of C.I.T. VS. HER HIGHNESS MAHARANI VIJAYA RAJE SCINDIA reported in 208 ITR 38 in which at page 45 it is observed as under:
This takes us to the consideration of the case of Meramwalla [1968] Guj. LR 609 (Guj), which has been the basis for rethinking of the Department. The context was the dispute pertaining to the civil rights of parties in a civil Court filed long before the Hindu Succession Act came into force. A perusal of the judgement will indicate that the effect of sections 4 and 5 of the Hindu Succession Act has not been considered in the said judgement, perhaps because the question did not arise. The whole context was different. That apart, there are certain striking distinguishing features which make the ratio of the said decision clearly inapplicable to the matter at hand. That was a case where a common ground was that the entire estate was in a territory over which the chief of the estate had sovereign power and the rule of primogeniture applied to the estate by a long custom up to the lapse of paramountcy. In that very decision, there are observations to the effect that the legal position would be different if the rule of primogeniture applied on an ad hoc basis.
7.11 The second argument to negate the implication of law laid down by this Court in the case of D.S. MERAMWALA VS. BA SHRI AMARBA (supra) that the properties in that case were construed as sovereign estate and this has been asserted by the appellant that the nature of the Suit properties is non-sovereign estate and therefore the aforesaid proposition laid down in the aforesaid case will not govern the controversy of the present Suit.
7.12 The appellant has submitted that the claim of the contesting respondent that the properties held by the Ruler would always qualify as sovereign estate is wholly misconceived as prior to the merger of princely State with the dominion of India. Distinction between the State or sovereign properties and the private properties of the Ruler was not of substance. The appellant has asserted that the Rulers being absolute Monarchs were entitled to use any property as their private property. A distinction has been drawn by the appellant stating inter alia that at the time of merger this distinction assumed importance as the Rulers were required to identify certain properties as their private properties. The appellant has placed reliance on the case in the matter of PRATAP SINGH VS. SAROJINI DEVI relied on by the respondents reported in 1994 Supp(1). SCC 734. In this case, the Hon'ble Surpeme Court has also recognized the concept of non-sovereign on private properties of the Rulers as distinguished from sovereign properties and thus the private properties of the Ruler as contested by the contesting respondent would not form part of the sovereign estate.
7.13. In addition to the distinction as drawn by the Hon'ble Supreme Court in the case of PRATAP SINGH VS. SAROJINI DEVI (supra), the contesting respondent himself has pleaded in his written statement that even prior to the merger due to rule of primogeniture and the family custom of impartibility, he held private property in addition to RAJ which was referred to sovereign estate. Therefore, the reliance placed by the contesting respondent in the matter of REVATHINNAL B. VARMA VS. HIS HIGHNESS SHRI PADMANABHA DASA reported 1993 Supp. (1) SCC 233 is of no consequence and the contesting respondent cannot avail of the law laid down by the aforesaid case as the decision in the aforesaid case proceeded on the factual matrix where properties involved therein were admittedly sovereign properties. The appellant has contested the claim of the answering respondents that the properties vested in the answering respondents by Merger Agreement wherein it recognized the same to be the private properties of defendant No. 1. The appellant has said that he has no quarrel with the terms of the Merger Agreement. He has not to seek relief against Union of India. He is only seeking relief against the answering defendant because the properties were joint Hindu family properties.
The concept of act of State and recognition of the rights of the appellants are the questions which have been unnecessarily invoked by the answering defendant. The act of State is not involved according to the appellant and in this regard the appellant has placed reliance on a case decided by the Hon'ble Supreme Court in the matter of STATE OF SAURASHTRA VS. MOHAMAD ABDULLA reported in AIR 1962 SC 445 particularly paragraph No. 36 which reads as under:
Thus even if on the respondents' own showing that the Junagadh territory must be deemed to have been annexed by the Indian Dominion by assuming administration over it and thereupon its residents became citizens of India, they could assert and establish in the municipal courts of the new sovereign only such rights as were recognized by the Indian Dominion. The respondents claim to be grantees from the Ruler of Junagadh but their grants avail them nothing in the courts of the new sovereign unless they were recognized by that sovereign. The burden of showing that they were so recognized lay on the respondents. A perusal of the orders passed by the administrator would clearly show that far from recognizing those grants they were in effect repudiated by him. The administrator in fact resumed the grants but whatever the form his orders took in truth and in substance they were no more than a clear and unequivocal declaration of the fact that the right claimed by the respondents to the properties in question by virtue of the grants made in their favour by the former Ruler were not recognized by the new sovereign. Recognition or refusal of recognition of rights of erstwhile aliens who had no legal enforceable rights cannot be said to be an act of State because the choice to do one or the other had already vested in the Indian Dominion at the moment it occupied Junagadh territory.
7.14. The case of the appellant further is that the expression `private property' as used in the Merger Agreement was not for the purpose of distinguishing the same from the joint family property. It was so used because the said property was governed by the custom of impartibility at the time of its mention in the Merger Agreement and such property though otherwise being a property of joint family was having the trace of private property. The holder earlier might have had an unfettered right of alienation. In this line it is contended by the appellant that the distinction of the suit property as private property in the Merger Agreement was not for the purpose of depriving the suit property of its status under the Hindu Law as a joint family property.
7.15. The appellant has tried to explain his description at the time of disposition of some of the properties as constituted power of attorney of defendant No. 1 wherein he has mentioned that the suit properties were of the exclusive ownership of defendant No. 1. Such admission of the appellant would not determine the character of the properties, the suit properties are to be identified by operation of law and it cannot be determined by the conduct of the parties.
Therefore, the description of the suit properties to be the exclusive properties of defendant No. 1, in some of the Sale Deeds executed by the appellant, as constituted attorney of defendant No. 1 cannot be read against him. The character of the properties has to be determined by operation of law.
7.16. The appellant has further submitted that defendant Nos. 14 and 15 are not entitled to claim status of bona fide purchasers because the property in question was purchased from respondent Nos. 4 and 5 (original defendant Nos. 5 & 6), therefore, it cannot be said that they were bona fide purchasers. They have not appeared as witnesses to support their case. The sale was admittedly subject to the outcome of the litigation and therefore they cannot claim any concluded right in relation to the property which was subject matter of Suit. The appellant has further contended that the suit properties were joint family properties and therefore defendant No. 1 had no right to execute the Will in respect of the same. The Will was otherwise vitiated on account of the arguments raised before the trial Court and for the aforesaid reasons the said Will cannot be said to be sustainable on the inherent basic infirmities in the same.
8.1 Adopting the argument of the appellant, learned counsel for the defendant Nos. 12 and 13 has submitted that they being the daughters cannot be excluded from the partition and they are also to be awarded their share. In any case, the property known as Kotadi Baug was the property belonging to their mother, the same having been received as gift. She was therefore entitled to hold same and after her death defendant Nos. 12 and 13 be entitled to claim their right in such property. They have also submitted that the properties in question were joint Hindu family properties and were liable to partition. But they have claimed that they also have the share and the share as claimed by the appellant plaintiff gets diluted by their claim.
8.2 Learned counsel appearing on behalf of legal representatives of defendant No. 2, since deceased, has submitted that defendant No. 2 had been gifted Kotadi Baug by her grandfather-in-law Khengir and this property was her exclusive property and the same cannot be made subject matter of partition. The said argument raised on behalf of legal representative of respondent No. 2 are to the same effect as that of the appellant and therefore, they are not being repeated as the basic contention on behalf of this respondent is that the Royal Family of Kachchh is governed by Mitakshara School of Hindu Law and was liable to devolution and partition subject to right of co-parceners and such was the custom in the family.
8.3. Learned counsel for defendant No. 4 per contra submitted that the Suit filed by the plaintiff is a misconceived remedy. This is an admitted case of the plaintiff that the estate was sovereign impartible estate. When this fact is admitted, the law applicable to non-sovereign impartible estate could not be applied. The basic contention of the appellant is that the properties were ancestral HUF properties in which the plaintiff has interest by birth is fallacious. In fact, the sovereign Ruler held the estate by virtue of his sovereign power. Such estate cannot be subjected to municipal law as the sovereign is the fountain- head of municipal law. Sovereign is full and absolute owner of the estate and therefore non one could claim interest during his life time. He has relied on the following decisions:
1.
AMEER-UN-NISSA BEGUM VS. MAHBOOB BEGUM reported in AIR 1955 SC 352 (para 15):
The determination of all these questions depends primarily upon the meaning and effect to be given to the various 'Firmans' of the Nizam which we have set out already. It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority to act in any of these capacities. The 'Firmans' were expressions of the sovereign will of the Nizam 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 a particular 'Firman' held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later 'Firman' at any time that the Nizam willed.
2. DIRECTOR OF END., GOVT. OF HYD. VS. AKRAM ALI reported in AIR 1956 SC 60 (para 10) Now the Nazim was an absolute sovereign regarding all domestic matters at that time and his word was law. It does not matter whether this be called legislation or an executive act or a judicial determination because three is in fact no clear cut dividing line between the various functions of an absolute ruler whose will is law. Whatever he proclaimed through his Firmans had the combined effect of law and the decree of a court; see the judgment of this Court in - 'Ameerunnissa Begum v. Mahboob Begum', AIR 1955 SC 352 (A).
Therefore, the effect of this Firman was to deprive the respondent and all other claimants of all rights to possession "pending enquiry of the case". Exactly what this means is not clear but taken in conjunction with the surrounding circumstances and with the decision of the Director of the Ecclesiastical Department to which we have referred, it is fair to assume that it means, pending the enquiry by the civil Courts about which the Director had twice spoken, that is to say, if there was a right to possession it was held in abeyance till established by the civil Courts.
3. MADHAORAO PHALKE VS. STATE OF M.B. reported in AIR 1961 SC 298 (para 11) In dealing with the question as to whether the orders issued by such as absolute monarch amount to a law or regulation having the force of law, or whether they constitute merely administrative orders, it is important to bear in mind that the distinction between executive orders and legislative commands is likely to be merely academic where the Ruler is the source of all power. There was no constitutional limitation upon the authority of the Ruler to act in any capacity he liked; he would be the supreme legislature, the supreme judiciary and the supreme head of the executive, and all his orders, however issued, would have the force of law and would govern and regulate the affairs of the State including the rights of its citizens. In Ameer-un-Nissa Begum v. Mahboob Begum, AIR 1955 SC 352, this Court had to deal with the effect of a Firman issued by the Nizam, and it observed that so long as the particular Firman issued by the Nizam, held the field that alone would govern and regulate the rights of the parties concerned though it would be annulled or modified by a later Firman at any time that the Nizam willed. What was held about the Firman about all the Nizam would be equally true about all effective orders issued by the Ruler of Gwalior (Vide also : Director of Endowments, Government of Hyderabad v. Akram Ali, (S) AIR 1956 SC 60).
4. SHRI GOVINDLALJI VS. STATE OF RAJASTHAN reported in AIR 1963 SC 1638 (para 32) .......
It is matter of common knowledge that at the relevant time the Maharana of Udaipur was an absolute monarch in whom vested all the legislative, judicial and executive powers of the State......
5. D.S. MERAMWALA VS. BA SHRI AMARBA reported in (1969) 9 GLR 609. Reliance is placed on the following paragraphs:
Para 3 .............. There were two grounds on which this contention was rested: one was that the Khari-Bhagasara Estate was a sovereign Estate and quite irrespective of the question whether on the death of the Chief for the time being, it was inherited by a single heir according to the division a rule to which we shall have occasion to refer the ordinary incidence of co-parcenary property did not apply to the Khari-Bagasara Estate and the other was that in any event the Khari-Bagasara Estate was governed by the rule of primogeniture and on these two grounds it was urged that so long as the Chief who was for the time being the holder of the Khari-Bagasara Estate was alive, no member of his family, in fact no one else had any interest in the Khari-Bagasara Estate. Both these grounds are in our view well-founded and it must be held that though Meramvala was an adopted son, he did not acquire interest in the Khari-Bagasara Estate on adoption and he had no interest in the Khari-Bagasara Estate during the lifetime of Bhayavala.
para 5 ........... 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. The municipal law cannot determine or control the scope and extent of his interest in the estate or impose any limitations on his powers in relation to the Estate. 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 lfie time no one else can claim an interest in the Estate. Such an interest would be inconsistent with his sovereignty..........
...............
Now it was not disputed on behalf of Meramvala 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 Bhayavala under the merger agreement. It was not the case of Meramvala 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 Bhayavala. Bhayavala was, therefore, the full owner of the properties held by him and was competent to dispose of the same by will.
6. REVANTHINNAL B. VARMA VS. H.H. PADMANABHA DASA reported in (1993) Supp. 1 SCC 233:
Learned counsel relied on the following paragraphs:
Para 10 ............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.
para 28 Since it has not been seriously challenged before us that respondent 1 was a sovereign ruler of Travancore till July 1, 1949, we find it unnecessary to dwell upon the question as to how sovereignty came to be vested in the rulers of Travancore. As was agreed by the parties before the High Court as also before us the crucial question for determination is about the title of the appellant over the properties in suit. In other words, in the context of the pleadings of the parties the question which falls for consideration is whether the family of the appellant and defendants 1 to 34 was an undivided marumakkathayam tarwad known as Valiakottaram governed by marumakkathayam law as modified by custom and usage in respect of succession, inheritance and some other matters and the properties in suit belonged to this tarwad and respondent 1 had been managing the same as its karnavan as alleged by the appellant or whether these properties were held by respondent 1, as asserted by him, as his personal properties carved out by him as such in his capacity as the sovereign ruler of Travancore and were retained by him as his personal properties even after he surrendered his sovereignty as indicated in the inventory furnished to the Government of India in pursuance of the covenant dated May 27, 1949 (Ex. A-2) and accepted by the Government of India vide Ex. A-3.
para 29 Before adverting to this question, we find it appropriate at this stage to deal with a legal plea raised by learned counsel for the appellant about the nature and extent of authority of respondent 1 over the properties in suit in his capacity as the sovereign ruler of Travancore. According to learned counsel for the appellant since the properties in suit belonged to a tarwad and respondent 1 was managing them as karnavan, as asserted by the appellant, the mere fact that he was also the sovereign ruler of Travancore was of little significance. He also urged that since respondent 1 was not only a karnavan of a tarwad but also the sovereign ruler of Travancore, the properties in suit were made impartible in order to maintain his status but after he ceased to be ruler of Travancore, these properties even though were impartible earlier became partible.
Reliance was placed in this behalf on certain statutory provisions including the Hindu Succession Act to which reference shall be made later. He also place reliance on certain decisions dealing with the nature and legal incidents of an impartible estate. We propose to consider these decisions first to clear the legal ground based thereon.
para 30 The first decision to which reference was made by learned counsel for the appellant is the Privy Council decision. In this decision the Court has considered the facts of the case of Baijnath Prasad Singh Vs. Tej Bali Singh (AIR 1921 PC 62). After discussing the facts, the Court of of the opinion that it was apparently not a case of a sovereign ruler. Then considered another case of Privy Council in Shiba Prasad Singh Vs. Rani Prayag Kumari Debi hence was not relevant for the controversy.
para 31 ...... This case too does not appear to be a case of a sovereign ruler as is apparent from the recital of facts inter alia to the effect that on August 27, 1915 Raja Durga Prasad made a will wheeby he purported to dispose of some of the properties in dispute and that the will was governed by the Hindu Wills Act, 1870 and several sections of the Indian Succession Act, 1865, were thereby made applicable to wills governed by that Act. Had it been a case of a sovereign ruler neither of these Acts would have been applicable to him. Thus held not applicable for a Sovereign Ruler.
The Court considered another case of Privy Council in CIT Vs. Dewan Bahadur Dewan Krishna Kishore (AIR 1941 PC 120). It was held that this again was apparently not a case of a sovereign ruler inasmuch as such ruler could not have been governed by the Income Tax Act, 1922.
The Court has then proceeded to observe that in the instant case respondent 1 was holding the properties in dispute as a sovereign ruler and his right over these properties will have to be considered in this background.
para 51 Now we may consider the legal effect of respondent 1 being a sovereign Ruler of Travancore till he surrendered the sovereignty as indicated earlier. In Ameer-un-Nissa Begum Vs. Mahboob Begum (AIR 1955 SC 352) dealing with the efficacy of certain `Firmans' issued by the Nizam of Hyderabad who was a sovereign ruler, it was, with regard to the powers of the Nizam, held: (AIR p. 359, para 16):
The Nizam was not only the supreme legislature, he was the fountain of justice as well. When he constituted a new court, he could, according to ordinary notions, be deemed to have exercised his legal authority. When again he affirmed or reversed a judicial decision, that may appropriately be described as a judicial act.
para
52 The same view was reiterated in Director of Endowments, Government of Hyderabad Vs. Akram Ali (AIR 1956 SC 60) wherein it was held: (APR p.
62, paras 10 to 12) `Now the Nazim was an absolute sovereign regarding all domestic matters at that time and his word was law. .....
Now, as we have said, the Nizam was at that time an absolute ruler and could do what he pleased. His will, as expressed in his Firman, was the law of the land.
para 53 In Madhaorao Phalke Vs. Staet of M.B. (AIR 1961 SC
298) while dealing with the powers of Sir Madhavrao, who was a sovereign ruler of the State of Gwalior, it was held: (SCR p. 964-65) ...........What was held about the Firman about all the Nizam would be equally true about all effective orders issued by the Ruler of Gwalior.
para 54 While dealing with a Firman issued by the Maharana of Udaipur who too was a sovereign ruler, it was held in Tilkayat Shri Govindlalji Maharaj Vs. State of Rajasthan (1964) (1 SCR 561 = AIR 1963 SC 1638). It was held as follows: (SCR p. 591) In appreciating the effect of this Firman, it is first necessary to decide whether the Firman is a law or not. It is a matter of common knowledge that at the relevant time the Maharana of Udaipur was absolute monarch in whom vested all the legislative, judicial and executive powers of the State. In the case of an absolute Ruler like the Maharana of Udaipur, it is difficult to make any distinction between an executive order issued by him or a legislative command issued by him. Any order issued by such a Ruler has the force of law and did govern the rights of the parties affected thereby.
The Court further considered in Civil Appeal No. 242 of 1955 Mangal Singh Vs. Legal Remembrancer, Punjab (Civil Appeal No. 242 of 1955) decided by this Court on February 23, 1960, a plea question the validity of certain orders passed by the Maharaja of Patiala with regard to a Gurdwara had been raised.
It was held that Maharaja of Patiala was an absolute sovereign so far as the internal administration of the State is concerned.
The Court further considered another decision of this Court in Civil No. 226 of 1965 Mahant Hardial Singh Vs. Ajmer Singh decided on November 20, 1968 with regard to the powers of the Maharaja of Patiala and the Court held that at that time he was the supreme legislature, the supreme judiciary and the supreme head of the executive.
para 57 In D.S. Meramwala Bhayala Vs. Ba Shri Amarba Jethsurbhai ((1968) 9 GLR
966): It was held:
`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 bing 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.
.....................................
.....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 Court further considered another decision in the case of PRATAP SINGH VS. SAROJINI DEVI reported in 1994 Supp (1) SCC 734 where it is observed that it can be said with certainty that this rule continued even after 1947-48. Under Article 372 the law of succession relating to primogeniture continues until it is repealed.
8.4. The appellant has contradicted himself at some stage of the arguments by stating that the properties for which he is seeking partition are non-sovereign properties being personal properties of the family to which defendant No. 1 has succeeded. Here it may be mentioned that in the pleadings and also in evidence there is no indication whatsoever that the family at all had any income apart from State income which could be made subject matter of purchase of the properties in question and that being the position, the law relied on by the appellant that personal properties which are family properties are separate from State properties would have no application to the estate inherited by defendant No. 1 and by no stretch of imagination it cannot be said that the properties can be classified as to be the personal properties of the family because neither any source of independent income of the family nor any individual has been indicated either in the plaint or in the evidence by the appellant.
That makes the case of the appellant of a nature which is not liable to be countenanced.
8.5. During the time of the native State of Kutch, the plaintiff or any other issue of defendant No. 1 had no right, title, share or interest in the Suit properties. This is true that for the earlier successors of the sovereignty State of Kachchh. If at all any of the members of the family at any stage was given any property for his maintenance, that was by the grace of the sovereign and not as of right. In that view of the matter, the very concept of co-parcenery is alien to the family tradition. In that view of the matter, it cannot be said that the plaintiff was a co-parcener as there was no co-parcener and the estate inherited by defendant No. 1 as a sovereign was not a co-parcenery property. Therefore, the plaintiff was not a co-parcener nor was the estate a co-parcenery property. In this regard learned counsel has placed reliance on a decision in the case of BHAGWAN DAYAL VS. REOTI DEVI reported in AIR 1962 SC 287 particularly paragraph No. 47 where it is held that Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion.
8.6. Co-parcenery is a creation by operation of law. It cannot be created by an act of parties save in so far, as by adoption a stranger may be introduced as a member thereof. Therefore, if the plaintiff was not by birth a co-parcener, he could not become a co-parcener at any time thereafter.
8.7. There are no specific pleadings in the plaint which classifies that outside the sovereign estate, part of which has been recognized as private properties of the Ruler, there was any non-sovereign property of defendant No. 1 and there is no proof to that effect. To establish this point, the appellant has relied on a case in the matter of REVANTHINNAL B. VARMA VS. H.H. PADMANABHA DASA 1993 Supp(1) SCC
233. Relevant portion at paragraph 64 is reproduced as under:
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.
8.8. It has further been contended on behalf of the appellant that Indian Independence Act, 1947, the sovereignty of the British Crown lapsed and the sovereignty of the Ruler of Kachchh and the State expanded.
In this eventuality, the estate remained a sovereign impartible estate. The plaintiff or any other issue of defendant No. 1 had acquired no right, title, share or interest in the estate. To support his claim, learned counsel has relied on the following cases:
1.
D.S. MERAMWALA VS. BA SHRI AMARBA (supra). It is held thus:
It is, therefore, clear beyond doubt that on lapse of paramountcy the rule of primogeniture did not cease to apply to the Estate and the Estate continued to be governed by the rule of primogeniture and Meramvala consequently did not acquire an interest in the Estate by adoption. ...... Once a rule of primogeniture applies to an Estate, the sons cannot acquire an interest in the Estate by birth or adoption for if they acquire such interest, they would be entitled to claim partition of the Estate and that would be clearly inconsistent with the rule of primogeniture. We, therefore, reach to the conclusion that Meramvala did not acquire any interest in the Estate by adoption and he was not entitled to restrain Bhayavala from disposing of the Estate or any part thereof by will. Bhayavala was, therefore, entitled to dispose of the properties by will.
2. DATTATRAYA VS. KRISHNA RAO reported in (1993) Supp (1) SCC 32 in which it is held as under:
From these facts the question emerges whether the plaint schedule properties are coparcenary. In our view, the courts below fell in serious misconceptions of law. Qwaid Jagirdaran only recognised and reiterated the existing law or custom of impartibility and indivisibility of jagir, etc. and succession by rule of primogeniture. High Court also committed error in holding that impartibility came to an end with the abolition of jagir under the Act and that earlier thereto and subsequent to the Act the properties were coparcenary. Neither court appreciated the correct legal position.
3. PRATAP SINGH VS. SAROJINI DEVI (supra) Head Note: C ......Ultimately he died in 1942 and subsequently his eldest son, Pratap Singh, became the Ruler of the State by the applicability of rule of primogeniture......... A Single Judge of the H.P. High Court held that the property was purchased benami by Ripudaman Singh, that on his death, it devolved on the entire joint family that the rule of primogeniture would not be applicable to his personal property since it applied only to the property of the State and that merely because Pratap Singh was declared as a Ruler of Nabha State he could not become the owner of this property. However, a Division Bench reversed the judgement of the learned Single Judge and held that the plaintiffs had failed to establish that the `Sterling Castle' was purchased benami in the name of Dr Tehl Singh from out of the personal funds of Ripudaman Singh or that it was, on that account, his personal property. Therefore, the Division Bench allowed the appeal and dismissed the Suit. Dismissing appeal against the decision of the Division Bench, the Supreme Court held: Though impartibility and primogeniture, in relation to zamindari estates or other impartible estates are to be established by the custom, in the case of a sovereign ruler, they are presumed to exist.
para 69 - ....... It is true that there was no Rulership after India became a Republic on January 26, 1950 but if the estate is impartible in nature it would continue to be governed by the rule of primogeniture. We will refer to Thakore Shri Vinayasinhji Vs. Kumar Shri Natwarsinhji ( 1988(Supp) SCC 133). At page 134 it is stated thus:
`The principle of law that is applicable to a coparcenary property or to the coparceners is inapplicable to an impartible estate or to the holder thereof except that an impartible estate is considered to be a joint family property to the extent of the junior members succeedings to the estate by right of survivorship. When under certain circumstances the right of a coparcener to take by survivorship can be defeated, no exception can be taken, if the right of survivorship of junior members of an impartible estate to succeed to it is defeated by the holder thereof by disposition by a will.' 8.9. Succession from the State of Kachchh to the Union of India was under the Instrument of Accession and Merger Agreement executed by the Ruler of Kachchh on 11.8.1947. The then Maharao Vijayrajji executed Instrument of Accession ceding partial sovereignty to Union of India.
Paragraph No. 8 expressly provide that nothing in the Instructed affected the continuance of his sovereignty in and over the State or save as otherwise provided exercise of any powers, authority and rights then enjoyed by him as the Ruler of the State. In February, 1948, Maharao Vijayrajji expired and defendant No. 1 ascended to the throne. Thereafter, Merger Agreement was executed by defendant No. 1 on 4.5.1948 . Government of India, Ministry of States, by a writing dated 4.5.1948 clarified, inter alia, that the intention of the Government of India was to treat the residences occupied by Maharao and his family as his private properties and recognized the Palaces mentioned therein as private properties.
8.10 Succession of State is an act of State and the Ruler does not lose his sovereignty till the Act of State terminates. Moreover, an inhabitant of the ceded territory can make good in the Municipal Courts established by the new sovereign only such rights as the new sovereign has recognized, but not the rights enjoyed by him under the Rule of its predecessors. Learned counsel has relied on the following decisions:
1.
VAJESINGJI JORAVARSINGJI NAYAK reported in XXVI BLR 1143 in which it is held as under:
Any inhabitant of the territory can only make good in the municipal Courts established by the new sovereign such rights as the sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to these inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the High Contracting Parties.
2. M/S. DLAMIA DADRI CEMENT CO. LTD. VS. COMMISSIONER OF INCOME TAX, reported in AIR 1958 SC 816: It was held thus:
......
It is also well established that in the new set up these residents do not carry with them the rights which they possessed as subjects of the ex-sovereign, and that as subjects of the new sovereign they have only such rights as are granted or recognised by him....
3. THE STATE OF BOMBAY VS. DR. RAGHUNATH BALKRISHNA CHANDRACHUD reported in 63 BLR 442 at p. 474 in which it is observed as follows:
From the discussion of these authorities, the following propositions may be deduced:
(1) Acts of State are either in relation to foreign States or in relation to individuals. The former are transactions of independent States between each other, while the latter are acts done in the exercise of sovereign power against an alien neither intended nor purporting to be legally founded.
(2) There would not be any act of State if it were done under colour of legal title.
(3) Any inhabitant of the territory can make good in the municipal Courts established by a new sovereign only such rights as that sovereign has through his officers recognised. Such rights as he had under the rule of predecessors avail him nothing.
(4) The new sovereign can choose to waive his rights and recognise titles and rights of any inhabitant as they existed at the date of cession. Such recognition can be given either by legislation or under an agreement and it can even be inferred from the mode of dealing with the property after the cession.
(5) According to the view of Fletcher Moulton, L.J., in Salaman's case although an act of State cannot be challenged, controlled, or interfered with by municipal Courts, its intention and effect may sometimes be to modify and create rights as between the Government and individuals who are, or who are about to become, subjects of the Government and in such cases the rights arising, therefrom, may be capable of being adjudicated upon by the municipal Courts. Thus debts due to and from the former ruler may be enforced by and against the existing Government in its municipal Courts.
4. STATE OF SAURASHTRA VS. MOHAMAD ABDULLA reported in AIR 1962 SC 445. It is held thus:
In law, therefore, the process of acquisition of new territories is one continuous act of State terminating on the assumption of sovereign powers de jure over them by the new sovereign and it is only thereafter that rights accrue to the residents of those territories as subjects of that sovereign. In other words, under the dominion of a new sovereign, the right of citizenship commences when the act of State terminates and the two therefore cannot co-exist."
......
He conceded however, that this Court has accepted the view expressed by the English Court's in Cook v. Sprigg, 1899, AC 572 and the decisions which followed it. That view proceeds on the doctrine that acquisition of territory by conquest, cession or annexation being an 'act of State', municipal tribunals have no authority to give a remedy in respect of any actions arising therefrom. He also drew our attention to a decision of this Court in Jagannath Agarwala v. Slate of Orissa, Civil Appeals Nos. 666 and 667 of 1957 D/- 8-3-1961 : (AIR 1961 SC 1361) in which in respect of some claims made against the State before the coming into force of the Constitution but enquired into and rejected by Government after the coming into force of the Constitution, it was held that unless the new sovereign had expressly or impliedly admitted the claims, the municipal courts had no jurisdiction in the matter.
5. VISHNU PARTAP SINGH VS. STATE OF MADHYA PRADESH AND OTHERS reported in (1990) Supp. SCC 43: It is held thus:
.......
It is in the assertion of his sovereign power that he gave his list on July 5, 1948 (Ex. D-13-5) and it is in assertion of the same sovereign power as also individual that he made the gift of the house in dispute to his father-in-law.
para 13 ..... It is in exercise of that sovereign power that the Ruler, in the manner indicated above, had set apart the property in dispute as one of his private properties , in the list submitted on July 5, 1948. It is nobody's case that he could not submit such a list on July 5, 1948. Further, it was in exercise of his sovereign as also individual right over his private property, that he transferred the house in dispute to his father-in-law on August 25, 1948. ......
Taking thus the totality of these circumstances in view, we are driven to the conclusion that the High Court committed an error that the Ruler lost his sovereign right to earmark the property in dispute as his private property after May 1, 1948......
8.11. The plaintiff has not pleaded that the rights claimed by him in the properties recognized by Union of India as the defendant No. 1's private properties or for that matter any other properties were recognized by the successor State, nor is there any proof thereof. Therefore, even if the plaintiff had any rights in the impartible estate or in any property outside the same, the same are of no avail to him in the municipal Courts of Union of India.
8.12. Private properties named by the Ruler and recognized by the Union of India were absolute personal properties of the Ruler and not any joint family properties or an impartible estate. In this regard, learned counsel has relied on the following decisions:
1. REVATHINNAL BALAGOPALA VARMA VS. HIS HIGHNESS SHRI PADMANABHA DASA (supra):
at page 236 -... One incidence of property held by a sovereign was that there was really no distinction between the public or State properties on the one hand and private properties of the sovereign on the other. The other incidence was that no one could be a co-owner with the sovereign in the properties held by him. 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.
para 88 .... Suffice it to say so far as this submission is concerned that as has been held above, the properties in suit had been earmarked by respondent 1 as his personal properties which he was competent to do as a sovereign and the government by accepting or approving the list of properties submitted by him as his personal properties in pursuance of the covenant did not purport on its own to create any right in favour of respondent 1 in such properties. The government could have disputed the list submitted by respondent 1 but it chose not to do so and the assertion of respondent 1 that the properties in suit were his personal properties was accepted.
2. UNION OF INDA VS. PRINCE MUFFAKAM JAH (II) (1995) Supp (1) SCC 702 :
para 12 If the Ruler had exercised sovereign power in his State and has set apart any property as private property no dispute can arise concerning the same. It has been so held in Vishnu Pratap Singh V. State of M.P. (1990 Supp SCC
43). To the same effect are the observations of this Court in Revanthinnal Balagopala Varma Vs. His Highness Shri Padmanabha Dasa Bala Rama Varma (1993 Supp(1) SCC 233).
3. MAHARAJ SHRI MANVENDRASINHJI VS. RAJMATA (1999) 1 GLR 261 para 21: It is observed as follows:
.......
It is not in dispute that deceased Mahendrasinhji had power to demarcate certain properties as his private properties.
REVATHINNAL B. VARMA VS. HIS HIGHNESS SHRI PADMANABHA DASA (supra), in which on page 294 at paragraph 87 it is observed as under:
.....However, in view of our finding that the properties in suit were not joint family properties as alleged by the appellant but were the personal properties of respondent 1, we do not consider it necessary to deal with them. Neither any principle of law nor any authority has been brought to our notice in view whereof personal properties of respondent 1 could get transformed into joint Hindu family properties wherein the appellant could acquire an interest....
8.13.
In view of the findings that the properties in the Suit were not joint family properties but were the personal properties of respondent No. 1, the Court did not consider the contention that if joint HUF property was impartible, on the commencement of Hindu Succession Act and Kerala Joint Hindu Family System (Abolition) Act, 1975, its nature of partible joint Hindu family property would get revived.
8.14. Under Constitution 22nd Amendment Act, 1971, the title of Ruler which had continued even after the succession of the State of Kachchh by the Union of India ceased to exist and payment of privy purse was stopped. Under the succession of the State of Kachchh by the Union of India as far back as in 1948, the Ruler had become absolute owner of the private property as recognized by the Government of India under the Merger Agreement. Succession to these properties was not governed by any rule of primogeniture. Therefore, the argument that with the abrogation of rulership under the Constitution amendment, the rule of primogeniture said to have been an appendage of rulership was extinguished has no relevance.
9. Learned counsel for respondent Nos. 12 & 13 (original defendant Nos. 14 &
15) submitted that respondent Nos. 12 and 13 are bona fide purchasers of land bearing Survey No. 124 of Bhuj for value with knowledge from respondent Nos. 4 & 5 (original defendant Nos. 5 & 6). He made the following submissions on behalf of the said respondents with regard to the contentions/issues raised by the appellant-plaintiff.
9.1. It is the contention of the appellant that the original defendant No. 1 inherited the properties on the demise of Maharao Vijayrajji as Karta of the family and thus, the property inherited by him is joint family property and the appellant has the right to sue for partition. In this regard, it is submitted that on the demise of Maharao Vijayrajji, father of original defendant No. 1, defendant No. 1 became the Ruler and Maharao of Kachchh as per family custom followed since time immemorial by his ancestors. As per family custom of inheritance, the original defendant No. 1 has inherited the RAJ and as its incident, all the properties absolutely as personal and private properties to the exclusion of all the other members and the relations of the family. It is further submitted that the impartible nature of the properties in absolute possession and ownership of original defendant No. 1 was consistently and undisputedly admitted by the appellant by accepting various transfers and sales of properties by original defendant No. 1 in his favour. Not only that, he was also holding general power of attorney for and on behalf of original defendant No. 1 for a period of about four years. It is further submitted that the appellant has chosen to examine himself at Exh. 205. The evidence which comes out in paragraph Nos. 48, 53, 58 and 85 of the deposition would be sufficient to come to the conclusion that the property is impartible in nature and the suit property is not the HUF property and therefore, the suit would not be maintainable. All the properties owned and possessed by original defendant No. 1 are recognized as absolute and personal properties of original defendant No. 1 by the Wealth-tax and Income-tax authorities. The original defendant No. 1 during his life time had been returning his income and wealth in his status as an individual.
9.2 From what is submitted hereinabove, it is clear that the rule of primogeniture was prevailing in Kachchh since the beginning. Rule of survivorship of joint family is not established by the appellant, but he has only assumed it. Therefore, the contention of the appellant that the suit property is joint family property and amenable to partition is not tenable both in fact and in law. Thus, the Special Civil Suit filed by the appellant was rightly dismissed. The appeal therefore deserves to be dismissed.
9.3 The contention raised by the appellant is that Section 4 of the Hindu Succession Act, 1956, abrogates the rule of primogeniture and impartibility of property and the properties will automatically be converted into joint family property with effect from the date when the Hindu Succession Act came into force. This contention of the appellant is not tenable in law for the following reasons and thus, deserves to be rejected.
9.4 On 4.5.1948, the original defendant No. 1 entered into a Kachchh Merger Agreement with the Dominion Government. A reading of the provisions of the Articles contained in the said Agreement makes it clear that:
(i) His Highness the Maharao 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 the Agreement. (Article
4).
(ii) The Dominion Government guarantees the succession according to law and custom to the Gadi of the State and to His Highness the Maharao's personal rights, privileges, dignities and titles (Article 6).
Although impartible estates were abolished and the old rule of succession by single heir thereto is abrogated by Section 4 of the Hindu Succession Act, 1956, Section 5(ii) of the Act saved the rule of primogeniture in respect of an estate which descended to a single heir by a term of agreement entered into by a Ruler with the Government of India. Section 5(ii) provides an exception to Section 4 of the Hindu Succession Act.
Thus, in the present case, the rule of primogeniture with incident of impartibility of the properties continues to apply without being in any way affected by the passing of the Hindu Succession Act, 1956. Thus, the appeal deserves to be dismissed.
9.5 The argument advanced by the appellant that exception to Section 4 provided in Section 5(ii) of the Hindu Succession Act, 1956 is not applicable to the properties held by original defendant No. 1 since according to the appellant the estate of the last Ruler descended on the original defendant No. 1 not by terms of a covenant or agreement entered into by the Ruler with the Government of India and that the Merger Agreement dated 4.5.1948 entered into by the original defendant No. 1 with the Government of India merely recognizes the custom of impartible estate and rule of primogeniture followed by the family of Maharao. This argument advanced by the appellant is not borne out by the provisions of law read with Article 6 of the Merger Agreement dated 4.5.1948.
9.6 In the case of original defendant No. 1, the estate of Maharao Vijayrajji descended on original defendant No. 1 on the death of the former under the custom of primogeniture as impartible estate. By Article 6 of the Merger Agreement dated 4.5.1948, the Dominion Government guarantees the original defendant No. 1 succession according to law and customs to the Gadi of the State and to his personal rights, privileges, dignities and titles which means the estate of the defendant No. 1 would descend on a single heir as an impartible estate under the customary rule of primogeniture. During his lief time, he holds the properties as his absolute property. Thus, it is clear that there is no merit in the argument advanced by the appellant that Section 5(ii) of the Hindu Succession Act is not applicable to the present case.
9.7 As a fall out of the aforesaid argument made by the appellant that Section 5(ii) of the Hindus Succession Act, 1956, would not be applicable to the present case, the appellant came up with another argument that as per Section 4 of the Act, an impartible estate becomes partible and can be partitioned after coming into force of Hindu Succession Act, 1956, with effect from 17th June, 1956. For this purpose, he relied on the decision of this Court in the case of PRATAPSINHJI N. DESAI Vs. CIT (1983) 139 I.T.R. 77. Learned counsel submitted that this view has been followed in the case of C.I.T. Vs. MAHARAJA CHINTAMANI SARAN NATH SHA DEO (1986) 157 ITR 358 (Pat). In this case, Special Leave Petition was granted by the Supreme Court of India (1993) 195 ITR (St.) 145. Besides, in income-tax cases referred to above, it was the holder of the estate who came forward on his own volition for treating it as joint family property. In this view of the matter, the interpretation adopted for the purpose of assessment of income under the Income-tax Act cannot be adopted for the purpose of determination of devolution of property under the Hindu Succession Act, 1956. As submitted hereinabove, the present case is squarely covered by Section 5(ii) of the Hindu Succession Act, 1956.
9.8 Learned counsel further submitted that besides, under Section 4 of the Act of 1956, any custom will cease to have effect only with respect to any matter for which provision is made in this Act. In this view of the matter, if at all the custom of impartibility of estate is to cease to have any effect, it will be with respect to devolution of the estate (for which provision is made in the Act) which will come into operation only upon the death of the holder of the estate under the Act. Thus, the argument put forward by the appellant that an impartible estate becomes partible and can be partitioned after coming into force the Act of 1956 with effect from 17th June, 1956, is not tenable in law and deserves to be rejected.
9.9 Learned counsel further submitted that the original defendant No. 1 having been an absolute owner of the property held by him, all the transactions and/or alienations relating to the said property and the Will made by him are valid and cannot be declared as invalid since those properties were capable of being disposed by him under the rule of primogeniture by transfer inter vivos or by Will.
9.10 Further submission of learned counsel is that the original defendant No. 1 during his life time sold agricultural land bearing Survey No. 124 for consideration to the original defendant Nos. 5 and 6 and the original defendant Nos. 5 and 6 in turn disposed of the property to original defendant Nos. 14 and 15 as per Court's order passed below Exh. 190 on 18.1.1996. It is significant and material to mention here that on 18.1.1996, the appellant did not apply for stay of order passed below Exh. 190 and thereafter, moved this Court by way of Civil Application No. 2582 of 1996 which stands disposed of against the appellant and the order below Exh. 190 stands confirmed. It is further submitted that the said properties and suit properties are not joint family properties. They are the absolute properties of original defendant No. 1.
9.11 As for the contention raised by the appellant that the respondent Nos. 4 and 5 (original defendant Nos. 5 and 6) were not agriculturists and therefore, initial transaction of sale was void and subsequent transaction of sale to respondent Nos. 12 & 13 (original defendant Nos. 14 and 15) does not create right, title or interest in favour of the respondent Nos. 12 and 13 and it is submitted that this contention has little merit because sons of the family of farmers are considered to be farmers and transaction may take place by Sale Deed or by succession.
9.12 It is further submitted that agricultural land bearing Survey No. 124 is distinct and separate from Ranjit Villa Palace bearing Survey No. 123 enjoyed by the appellant. The said agricultural land bearing Survey No. 124 is not a part and parcel of Ranjit Villa Palace as is sought to be contended by the appellant. Even the record of rights of Survey No. 124 clearly reflects that the said land is not part and parcel of Ranjit Villa Palace bearing Survey No. 123. Therefore, the appellant cannot have any right over Survey No. 124 merely because he is in exclusive possession of Ranjit Villa Palace bearing Survey No.
123. 9.13 Learned counsel further submitted that even under the Hindu Law applicable to Mitakshara School, female members of a joint family cannot be co-parceners. Thus, they have no right to any share in the joint family property. For the aforesaid reasons, learned counsel for defendant Nos. 14 and 15 submitted that learned trial Judge has rightly dismissed the Special Civil Suit and thus no interference by this Court is warranted in the present appeal.
10. We have heard learned counsel for the parties. We have carefully considered the rival submissions and have perused the records. The basic case of the appellant as raised in the plaint and argued in appeal is that property as inherited by original defendant No. 1 was impartible and belonged to joint Hindu family. It was subject to Mitakshra School of Law. The defendant in his written statement has also admitted that while he inherited the property after the demise of his father Maharaja Vijayrajji, it was impartible. However, this has been the case of original defendant No. 1 that such properties having been inherited on account of rule of primogeniture were exclusive properties earlier of his father and after the demise of his father he has inherited them as his exclusive properties. The appellant plaintiff has contended that in such properties right to maintenance, partition is not available so long as the property remains impartible. However, after the promulgation of the Act of 1956 which has come into force from June 17, 1956, Section 4 thereof made the properties as partible and after that day there was no need to wait for the succession to pen on the demise of the holder of impartible estate. In this regard the appellant has relied on two cases, namely, PRATAPSINHJI N. DESAI VS. C.I.T. (GUJ) (supra) and MAHARAJ SHRI MANVENDRASINHJI VS. RAJMATA (supra).
10.1 If we consider the law laid down in the case of PRATAPSINHJI N. DESAI VS. CIT (supra) then this case has been referred by the Hon'ble Supreme Court in REVATHINNAL B. VARMA VS. HIS HIGHNESS SHRI PADMANABHA DASA (supra) along with other cases and it has been held at para 19 as under:
.............
Shri Nambiar refers to Sundari Vs. Laxmi [(1980) 1 SCC 19] as interpreted by the Gujarat High Court in Pratapsinhji N. Desai Vs. CIT (139 ITR 77) and the Patna High Court in CIT Vs. Maharaja Chintamani Saran Nath Sah Deo ( 157 ITR 358) [overruling CIT Vs. Maharaja Chintamani Saran Nath Sah Deo (133 ITR 658) and differing from CIT Vs. U.C. Mahatab, Maharaja of Burdwan (130 ITR
223)]. We have examined these decisions, Sundari Vs. Laxmi dealt with the question of a succession that opened out after June 17, 1956 and there is nothing in this decision which would support the conclusion that the customary rule of primogeniture or survivorship would automatically cease on June 17, 1956. Section 4 the Act, in the words of Sundari Vs. Laxmi [(1980) 1 SCC 19] (SCC p.
24, para 9), 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 provisons 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 Section 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 Section 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. Indeed, if that had been the position, the appellant would not have allowed more than a decade to go by before instituting the suit for partition, particularly in view of the controversy that had come to the fore as early as 1961. (emphasis applied) 10.2 Observing further in the judgement, the Hon'ble Supreme Court has held that had the position stood controlled only by the provisions of the Hindu Succession Act, perhaps the appellant's right to claim partition would have matured only when respondent 1 passed away recently in 1991.
10.3 The aforesaid law laid down by the Hon'ble Supreme Court clearly enunciates that with the promulgation of Hindu succession Act, it cannot be said that the right accrued to the plaintiff to sue for partition in 1956. Not only this, the Hon'ble Supreme Court in this case has observed that the right to ask for partition could only mature with the death of respondent No. 1 in 1991. Thus, according to the law laid down by the Hon'ble Surpeme Court, the law laid down in PRATAPSINHJI N. DESAI VS. C.I.T. (GUJ) (supra) cannot be considered to be laying down correct proposition and right to succession only accrues when the holder of the estate dies and not in his life time. If this law is applied then the Suit having been filed prior to the death of the holder of the estate i.e. defendant No. 1 it cannot be said that the plaintiff had a right to sue for partition.
10.4 The other case relied on by learned counsel for the appellant is MAHARAJ SHRI MANVENDRASINHJI VS. RAJMATA (supra). In this case this Court has held thus:
We are in respectful agreement with the view expressed by the Division Bench in the case of Pratapsinhji N. Desai (supra) and following the same, we hold that the learned Judge did not commit any error in recording a finding that the plaint does not disclose a cause of action because rule of primogeniture stands abrogated. The effect of such covenant has been examined by the Supreme Court in the case of Revathinnal Balagopala Varma (supra). In the said case, rulers of Travancore and Cochin, with the concurrence and guarantee of the Government of India, entered into a covenant dated May 27, 1949 for the formation of United State of Travancore and Cochin. The said covenant is similar to the covenant in the present case. The Maharaja of Travancore, in pursuance of the relevant Article of the covenant, had declared certain properties as his private properties, which declaration was accepted by the Government of India. The Supreme Court in pursuance of the covenant, held that the properties so declared by the Maharaja and accepted by the Government of India as his private properties, were his personal properties. The relevant observations are to be found in paragraphs 51 to 58 and 81 to 88 of the reported judgement. (emphasis applied) 10.5 Thus, the properties have been considered by this Court in the case relied on by the appellant to be his personal properties on the strength of a case decided by the Hon'ble Supreme Court in the case of REVATHINNAL B. VARMA VS. HIS HIGHNESS SHRI PADMANABHA DASA (supra).
It in no way supports the case of the appellant. Thus, the argument of learned counsel for the appellant that with the advent of the Act, 1956, the estate became partible and the appellant became entitled to ask for partition is without foundation.
10.6 The observations of the Hon'ble Supreme Court in the case of REVATHINNAL B. VARMA VS. HIS HIGHNESS SHRI PADMANABHA DASA (supra) held in unequivocal terms that the properties held by a succeeding sovereign are succeeded by the sovereign as well, this has been held in the following words at page 240 of the said judgement:
Neither the family nor any member of the family could dream of putting up a claim, so long as he is the ruler, that as the properties had been acquired by a member of the family they belong to the family. It would not be correct to say that they have such a right but that the right remains dormant so long as the ruler is a sovereign and will revive on the ruler ceasing to be a sovereign. The acquisitions by a sovereign ruler cannot be claimed to be joint family property.
It is further held at page 252 of the said judgement thus:
But once the distinction is borne in mind that the estate was a sovereign estate and its chief a sovereign ruler, the real import of the decision becomes clear. It establishes beyond doubt that the acquisitions by a sovereign ruler cannot be claimed to be joint family property.
10.7 Therefore, the law laid down by the Hon'ble Supreme Court in the case of REVATHINNAL B. VARMA VS. HIS HIGHNESS SHRI PADMANABHA DASA (supra) clearly establishes that the element of joint Hindu family property and partible estate are not the incidence which can be claimed by the appellant in relation to the properties mentioned in the suit as inherited by defendant No. 1 These were private properties of defendant No. 1.
10.8 In the alternative it has been argued on behalf of the appellant that if it is not considered appropriate that with the promulgation of the Act, 1956, the property would not be available for partition, then after 26th Amendment of the Constitution which came into operation after December 28, 1971 wherein Articles 291 and 362 were amended, the right of ex-ruler to hold the properties under the special statute was lost and thereafter, after 1971 the appellant had a right to sue for partition. This proposition has been supported by the appellant on the basis of the decisions in the cases of PRATAPSINHJI N. DESAI VS. C.I.T. (GUJ) (supra) and MAHARAJ SHRI MANVENDRASINHJI VS. RAJMATA (supra). These two cases have already been considered by us hereinabove and they do not support the case of the appellant. The third case relied on by learned counsel for the appellant is in the matter of RAGHUNATHRAO GANPATRAO VS. UNION OF INDIA (supra). It may be stated that in the aforesaid case of the Hon'ble Supreme Court, only constitutional validity of the Amendment Act was in question. The case has not decided the character of the properties as to whether they will become partible after the amendment. In that view of the matter, reliance placed by the appellant on the decision of the Hon'ble Supreme Court in RAGHUNATHRAO GANPATRAO VS. UNION OF INDIA (supra) would be of no consequence. Thus, the argument of learned counsel for the appellant that after the amendment of the Constitution in 1971, he became entitled to ask for partition is again a misconceived notion.
10.9 Further argument of learned counsel for the appellant is that the law laid down by this Court in the case of D.S. MERAMWALA VS. BA SHRI AMARBA (supra) cannot be applied to the facts of the present case. For this learned counsel for the appellant has cited two reasons, namely, firstly that the transactions involved in that case related to prior to the Act of 1956 i.e. before the Act of 1956 came into force and secondly in that case the properties were admittedly sovereign estate and in the instant case the appellant claimed that there are non-sovereign properties as well. Therefore, the law laid down by D.S. MERAMWALA VS. BA SHRI AMARBA (supra) would not hold good.
10.10. The argument of learned counsel for the appellant is that the case of D.S. MERAMWALA VS. BA SHRI AMARBA (supra) having been decided in relation to the facts prior to promulgation of the Act of 1956 will not apply, cannot be countenanced for the simple reason that the Hon'ble Supreme Court has categorically held that the advent of the Act of 1956 would have no effect on the character of the property. It has been held in the case of REVANTHINNAL B. VARMA VS. H.H. PADMANABHA DASA (supra). In the said case at page No. 238, it is held as follows:
There is also substance in the contention of the respondent that before he surrendered his sovereignty there was no distinction between the properties of the Ruler and that of the State and that before surrendering his sovereignty he had entered into a covenant whereby he was given an opinion to furnish a list of such properties which he wanted to retain as personal properties and that he having furnished such a list which included the properties in suit and the same having been approved by the Government of India the properties in the suit continued to be held by him as his personal properties in the capacity of being their absolute owner.
10.11 As regards the nature of the property being sovereign or non-sovereign, this question has been discussed in the case of D.S. MERAMWALA VS. BA SHRI AMARBA (supra) in detail. The case has been approved by the Hon'ble Supreme Court in many cases and in the case of REVANTHINNAL B. VARMA VS. H.H. PADMANABHA DASA (supra) it has been held that whatever the succeeding sovereign gets they are his private properties and they cannot therefore be considered to be non-sovereign. In this regard the relevant observations at page No. 236 of the judgement in REVANTHINNAL B. VARMA's case (supra) are quoted hereinbelow:
Till the sovereignty of the Maharaja of Travancore had ceased he was entitled to treat and use the properties under his sovereignty in any manner he liked and his will in this regard was supreme. On the principle that a sovereign never dies and succession to the next ruler takes place without there being a hiatus there could be no change in the legal status of the properties held by one ruler and his successor. One incidence of property held by a sovereign was that there was really no distinction between the public or State properties on the one hand and private properties of the sovereign on the other. The other incidence was that no one could be a co-owner with the sovereign in the properties held by him. 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.
Further it is observed at paragraph 10 on page 250 of the said judgement as follows:
Sri Nambiar also suggested that, if the properties were the personal properties of the previous rulers and had devolved on respondent No. 1, they would be ancestral property in his hands. 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.
10.12 In view of the above, the argument of learned counsel for the appellant that the decision of this Court in the case of D.S. MERAMWALA VS. BA SHRI AMARBA (supra) would have no applicability is also of consequence.
10.13 Learned counsel for the appellant has further contested that the argument of the respondent that the properties possessed and held by the rulers were always sovereign estate is misconceived. According to the appellant, prior to merger the distinction between the State and sovereign properties and private properties of the Rulers was of no substance as the Rulers were the absolute monarchs. According to the appellant, the distinction came at the time of merger and that distinction assumed importance where the Rulers were required to identify certain properties as their private properties. Therefore, there has been a distinction in between sovereign property and private property of the Ruler. According to the appellant, it has been stated by respondent No. 1 that due to the rule of primogeniture and his family custom of impartibility he has private properties in addition to Raj. Therefore, the law laid down by the Hon'ble Supreme Court and relied on by the respondent in the case of REVATHINNAL B. VARMA (supra) will have no application.
10.14 We have discussed in detail the application of the law laid down in the case of REVATHINNAL B. VARMA (supra) wherein the Hon'ble Supreme Court has clearly enunciated that the properties held by the succeeding monarch were held by him as his personal properties in the capacity being their absolute owner. The law laid down in this case has a support from other case of the Hon'ble Supreme Court in the matter of PRATAP SINGH VS. SAROJINI DEVI (supra). In the said case at para 60 on page No. 748 it is observed as under:
In Baboo Gunesh Dutt Singh Vs. Maharaja Moheshur Singh ((1854-7) 6 MIA
164) 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.' Further it is observed at paragraph No. 69 on page 750 of the said judgement thus:
With this, we pass on to the next question whether the primogeniture lapsed in the years 1947-48? It is the contention of the respondents that Pratap Singh ceased to be governed by primogeniture on August 15, 1947 and, in any case, on August 20, 1948 when he ceased to be a sovereign. It is true that there was no Rulership after India became a Republic on January 26, 1950 but if the estate is impartible in nature it would continue to be governed by the rule of primogeniture. We will refer to Thakore Shri Vinayasinhji Vs. Kumar Shri Natwarsinhji ( 1988(Supp) SCC 133). At page 134 it is stated thus:
`The principle of law that is applicable to a coparcenary property or to the coparceners is inapplicable to an impartible estate or to the holder thereof except that an impartible estate is considered to be a joint family property to the extent of the junior members succeedings to the estate by right of survivorship. When under certain circumstances the right of a coparcener to take by survivorship can be defeated, no exception can be taken, if the right of survivorship of junior members of an impartible estate to succeed to it is defeated by the holder thereof by disposition by a will.' Therefore, this argument of learned counsel for the appellant has no substance.
10.15. Learned counsel for the appellant has seriously contested the defence taken by the answering respondent that the property which has been recognized at the time of ceding was in an act which qualifies to be an act of State. Therefore, the same cannot be questioned. The appellant submitted that he is not asking for any relief against Union of India. He has no quarrel with the merger agreement but it cannot be stated that the properties acquired as private properties would qualify as State acts and the same cannot be question in municipal courts. The Hon'ble Supreme Court in the case of PRATAP SINGH VS. SAROJINI DEVI 1994 Supp (1) SCC 734 held in the following words:
It can be said with certainty that this rule continued even after 1947-48. Under Article 372 the law of succession relating to primogeniture continues until it is repealed.
In this case the Hon'ble Supreme Court has further held that :
If the various documents and the other evidence point out that the property belonged to the State of Nabha, it cannot be otherwise, because of the list submitted by Pratap Singh. The recognition by the sovereign parties to the covenant, that the Suit property is a private property of Pratap Singh would amount to an act of State.
In the case of UNION OF INDA VS. PRINCE MUFFAKAM JAH (II) (1995) Supp (1) SCC 702 in which at paragraph No. 12, it is observed as follows:
If the Ruler had exercised sovereign power in his State and has set apart any property as private property no dispute can arise concerning the same. It has been so held in Vishnu Pratap Singh V. State of M.P. (1990 Supp SCC 43). To the same effect are the observations of this Court in Revanthinnal Balagopala Varma Vs. His Highness Shri Padmanabha Dasa Bala Rama Varma (1993 Supp(1) SCC 233).
Further at paragraph No. 19 on page No. 707 of the said judgement, it is held as under:
That is why Article 363 really embodied of the principles of Acts of State which regulated and guided the rights and obligations under the covenants or Merger Agreements by incorporating the doctrine of unenforceability of covenants or Merger Agreements coming into existence as Acts of State.
In D.D. CEMENT CO. LTD. VS. I.T. COMMR. (AIR 1958 SC 816) relevant observations at paragraph No. 15 are as under:
........
When a territory is acquired by a sovereign state for the first time that is an act of state. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognized. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties."
In VAJESINGHJI JORAVARSINGJI NAYAK VS. THE SECRETARY OF STATE FOR INDIA (26 B.L.R. 1143) at page 1146 it is observed as follows:
It was held that the annexation of territory was an Act of State, and that any obligation assumed under a treaty either to the ceding sovereign or to individuals is not one which municipal Courts are authorised to enforce.
In STATE OF SAURASHTRA VS. MOHAMAD ABDULLA (AIR 1962 SC 445) it is held thus:
That an act of State is an exercise of sovereign power against an alien and is neither intended nor purports to be legally founded. The orders of resumption made by the Administrator arose out of and during an act of State and were not justiciable in the Municipal Courts.
10.16 In view of the aforesaid the properties inherited by defendant No. 1 when he inherited the Raj of Kachchh then the properties recognized by the Dominion Government to be his private properties, this was an act of State. In that view of the matter, the challenge to the right of defendant No. 1 for possessing the properties in question cannot, therefore, be challenged in the civil Courts.
10.17 The appellant has further stated that the expression private property in the merger agreement was not for the purpose of distinguishing the same from the joint family property. It was only because the said property was governed by the custom of impartibility at the time of its mention in the merger agreement. This was not to deprive the suit properties of their status under Hindu Law of the joint family property. In this regard there has been a serious contest by the answering defendants. It is claimed by the answering defendants that there is only a simple assertion in the plaint about the nature of the property and in the evidence there is plain assertion that the properties are joint Hindu family properties. There had not been an iota of evidence or assertion that there was any other source of income with the family, other than the State income, which would permit the family to acquire the properties in question. Thus there is no evidence adduced and material brought on record to establish that the properties could be acquired by the family apart from the income of the RAJ. Thus, the properties cannot be said to have acquired the character of family properties. All the properties were created by the funds arising out of the State exchequer and therefore in this regard the assertions of the appellant are held to be mere wishful thinking. Without some evidence that a particular property was purchased from a particular income, it is not possible to characterise the property to be a personal property and not to have been acquired by the income of the State. In that view of the matter, the property cannot be said to have been acquired by the family from any other source of income than the income derived from the State. Therefore it follows that the entire property was generated by the funds which were derived from the State exchequer.
Reference in this relation may be made to the observations of the Hon'ble Supreme Court in the case of REVANTHINNAL B. VARMA (supra) in which at paragraph No. 8 on page 249 it is held as follows:
It will be seen from the above discussion that the appellant cannot succeed unless there is material to show that the properties held by respondent 1 and his predecessors had their origin in the tarwad to which they belonged. There is clearly no such material on record, as the precise origin of the Rulership of Travancore is lost in antiquity.
10.18 The appellant has himself, according to the answering respondents while acting as constituted power of attorney, sold certain properties of the State of Kachchh which have been included in the list of private properties of defendant No. 1. While disposing of the said properties the appellant has described that defendant No. 1 is the sole and absolute owner and the expression used is Aji Umra which means sole and absolute owner whereby he admitted the impartibility of estate and sovereignty of defendant No. 1.
10.19 The conduct of the appellant has been sought to be explained by saying that, that would be available to describe the character of the property because the character of the property can only be understood in relation to law. This is oversimplification of the admissions made by the appellant himself. If he himself has considered defendant No. 1 to be the absolute owner of the properties, he not only understood but has so described then such conduct reflects on his mentality.
Admission about the nature of property has been considered important. A reference in this regard has been made to the decision of the Hon'ble Supreme Court in the case of PRATAP SINGH VS. SAROJINI DEVI (supra) in which at paragraph 97 the following observation is made:
Having regard to the admission made above that the property had been purchased by Sarojini Devi from Pratap Singh, the present plea, put forth by her as belonging to the Joint Family is contradictory to the earlier stand.
At the time of argument, learned counsel for the appellant made a reference to the following cases:
1.
BHAIYA RAMANUJ VS. LALU MAHESHANUJ (AIR 1981 SC 1937)
2. PUSHPAVATHI VIJAYARAM VS. P. VISWESWAR (AIR 1964 SC 118)
3. C.I.T. VS. HER HIGHNESS MAHARANI VIJAYA RAJE SCINDIA (208 ITR 38)
4. ANANT KIBE VS. PURUSHOTTAM RAO (1984(Supp) 175)
5. SHIBA PRASAD SINGH VS. RANI PRAYAG KUMARI DEBI (AIR 1932 PC
216)
6. BAIJNATH PRASAD SINGH & OTHERS VS. TEJ BALI SINGH (AIR 1921 PC 62) 10.20 All the above referred cases pertains to the disputes relating to the properties which were non-sovereign in character. The grant in favour of the holder were by sovereign. In all these cases civil Courts have dealt with the issue. Local laws have also been applied. Such application of law in relation to the properties of the sovereign has a limited application as discussed by the Hon'ble Supreme Court in the case of REVATHINNAL B. VARMA (supra). A reference in this regard may be made to the observation in that case in paragraph No. 39 which is as under:
So far as these decisions are concerned, apart from the fact that in the instant case respondent 1 was holding the properties in dispute as a sovereign ruler and his right over these properties will have to be considered in this background, what has been held in the aforesaid cases may be of some assistance if it is found as a fact that the family of the appellant and defendants 1 to 34 was an undivided Marumakkathayam tarwad known as Valiakottaram governed by Marumakkathayam law as modified by custom and usage in respect of succession, inheritance and some other matters and the properties in suit belonged to this tarwad and respondent 1 had been managing the same as its karnavan as alleged by the appellant. On the other hand, if it is found that those properties were personal properties of respondent 1 in the manner alleged by him, these decisions will be of no assistance. The fate of this appeal really, therefore, depends on the decision of the question referred to above with regard to the nature of the property.
10.21 As regards nature of the properties in this case in hand, we have already held that evidence and pleadings do not lead us to believe that the properties were ever purchased by any other source than the State revenue. In that view of the matter, nature of that property was sovereign. Thus the law laid down in the aforesaid cases will have no application.
10.22 The case of the appellant about the character of the properties has been that the same are joint Hindu family properties. In relation to the case of the appellant, following have been the observations by us:
(a) There is no pleading or proof on record that there was any other source of income with the family other than that of the State revenue.
(b) That the appellant himself has described in the Sale Deeds executed by him that defendant No. 1 was the Aji Umra .
(c) That the Dominion Government has recognised the properties to be the private properties of defendant No. 1.
(d) That the case of the appellant is that prior to the Act of 1956 the properties were impartible estate held by defendant No. 1.
(e) That there is nothing in the case of the appellant which can establish that defendant No. 1 as sovereign of Kachchh could not have dealt with the properties as his private properties.
(f) Till the filing of the suit in 1980 the plaintiff has never assumed that the family had any share in the property. It had done no act to ascertain its right prior to the filing of the Suit.
10.23 Thus in no circumstances it can be said the description of the properties to be private properties of defendant No. 1, was not sufficient to disentitle the family of any right. At no point of time defendant No. 1 gave away his right of absolute ownership of the property in question. Reference in this regard may be made to a Division Bench decision of the Bombay High Court THE STATE OF BOMBAY VS. DR. RAGHUNATH BALKRISHNA CHANDRACHUD (supra).
10.24 The claim of defendant No. 2 that Kotadi Baug property was gifted to her by her grandfather rests on mere oral assertions. There is no document supporting the fact that there was any gift ever made. This is also not established that there was any tradition of making such gifts in the family. In any case when defendant No. 1 has included Kotadi Baug property in his private properties and the same has been accepted by the Dominion Government to be his private properties the factum of alleged gift in favour of defendant No. 2 cannot be given significance because at the time when defendant No. 1 drew the list of private properties he had sovereignty and according to the law discussed by us the sovereign had authority for considering any property of his personal property and that power having been exercised, we do not think that defendant No. 2's claim of Kotadi Baug property can at all be considered to be sustainable.
10.25 Learned counsel for the appellant has not seriously challenged the findings of the trial Court in relation to the application of the Act, 1950. The Act, 1950 requires that permission to sue in relation to the suit properties was required to be taken from the Charity Commissioner. There is neither any pleading nor proof that any such permission as envisaged under Section 51 of the Act, 1950 has ever been taken by the appellant. Not only this that the permission has not been taken by the appellant before filing the suit but also the Charity Commissioner has not been added as a party defendant which is a condition precedent in terms of Section 51 of the Act, 1950. In that view of the matter, the suit has been dismissed in relation to the challenge of the appellant in respect of the trust properties. Since before us also nothing has been seriously contended in that regard, the findings of the trial Court in relation to application of the Act, 1950 are confirmed.
10.26 The basic right of the appellant regarding his entitlement to seek partition has been held by us to be not present. The right of the appellant-plaintiff to ask for the partition having not been found to be available , the right of defendant No. 1 to dispose of the properties by Will cannot be questioned. In this regard also the appellant and other supporting defendants have not raised any serious challenge before us. Therefore, the right of defendant No. 1 to make the Will in question cannot be disturbed by us as has been held by the trial Court.
10.27 The appellant and the other defendants who have supported the case of the appellant have not been establish before us that there was anything which can be said about the execution of the Will which would make the Will inadmissible in evidence and the basis for grant of latter's administration. The witnesses of the Will and the certification of the Doctor have been considered by the trial Court of worth to establish the execution of the Will. Therefore, we are in agreement with the findings of the trial Court that the Will was executed in lawful manner and there was right vested in defendant No. 1 to execute the Will. Therefore, the findings of the trial Court in that regard are confirmed.
10.28 In view of the findings recorded hereinabove, all the issues in relation to the Will and the trust properties having not been seriously challenged are not liable to be interfered with. In that regard the findings of the trial Court are confirmed.
11. In the result, the findings of the trial Court on all the issues in Special Civil Suit No. 68 of 1980 are not liable to be interfered with for the reasons recorded hereinabove. This leads to the conclusion that the Suit was rightfully dismissed by the trial Court. The other Suit was also dismissed by the trial Court. We uphold the same finding. The Civil Miscellaneous Application for grant of probate was allowed by trial Court. We also uphold the same. Therefore, all the appeals are dismissed accordingly.
(BHAGWATI PRASAD, J) (J.C. UPADHYAYA, J) Learned
counsel for the appellant submitted that there had been stay continuing during the pendency of the proceedings and the same may be continued to facilitate the appellant to file appeal before the Hon'ble Supreme Court. Learned counsel for the respondent opposed the same but we consider it appropriate, since the stay has been continuing for a pretty long time, to grant stay for two months from today.
Date:
20.7.2010 (BHAGWATI PRASAD, J) (J.C. UPADHYAYA, J) (pkn) Top