TRIJUGI NARAIN (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS versus SANKOO (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS on 10 December 2019

TRIJUGI NARAIN (DEAD) THROUGH LEGALREPRESENTATIVES AND OTHERS

v.

SANKOO (DEAD) THROUGH LEGALREPRESENTATIVES AND OTHERS

(Civil Appeal Nos. 5740-41 of 2015)

DECEMBER 10, 2019

[INDU MALHOTRA AND SANJIV KHANNA, JJ.]

Hindu Law – Property – Merger agreement signed bysovereign Ruler with the Dominion of India – Consequences withregard to the nature of the property – Impartible estate orcoparcenary property – The then Maharaja of the State of Maiharhad perpetual lease rights of the property in question, leaseholdNazul land – ‘BNS’, the ruler who succeeded to the gaddi of thesaid State bequeathed the palace of Maihar and privy purse tohis elder son of his first wife and the property in question to hissecond wife for her son – Aforesaid elder son sold the property inquestion to the appellant – Suits were filed for permanent injunctionclaiming right in the property by adverse possession and also fordeclaration & injunction against the appellant – Dismissed –Impugned judgment reversed the findings of the courts below andheld that the property was part of the impartible estate governedby the rule of primogeniture– Held: An estate even if inherited andancestral, partition of which is prohibited by custom and successionwhereto is generally by the rule of primogeniture is referred to asan ‘impartible estate’ – As per the custom relating to impartibleestates and the rule of primogeniture, the Raja or Ruler of aprincely state would not hold the estate as the karta or coparcener,but as the absolute owner and the estate would be impartible –On the death of the Ruler, the succession to the rulership, and theimpartible estate, was not under the Mitakshara law ofsurvivorship but by the rule of primogeniture – In the present case,inheritance of the property post the death of the then Maharajaof the State of Maihar by the new Ruler including ‘BNS’ byapplication of the rule of primogeniture indicates that it was treatedas a State or sovereign property– Property was a part of theimpartible property i.e., though ancestral was not a part of the

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Acoparcenary property, but was a part of the estate of the sovereignRuler, ‘BNS’ – Final findings of the High Court, affirmed– HinduSuccession Act, 1956– ss. 4, 5(ii), 6, 8, 9, 14 & 30– Constitutionof India – Arts.291, 362, 363(2), 366(22) – Constitution (26[th]Amendment) Act, 1971 – Evidence Act,1872 – s.48 – Doctrine of‘cessante ratione legis, cessat ipsa lex’ – Indian Succession Act,B1925 – Hindu Succession (Amendment) Act, 2005.Hindu Law – Mitakshara Hindu Law – Difference betweenthe Joint Hindu family and Coparcenary – Discussed.

Hindu Law – Property – Impartible estate – Succession to –CRule of primogeniture – Held: Though the right to survivorship isnot inconsistent with the custom of impartible estate, albeit it isdifferent from the ordinary rule of succession under theMitakshara Hindu law where all sons of the father are entitled toequal share in his estate, for the law of succession when the ruleof primogeniture applies, is that the first-born son succeeds to theDentire estate to the exclusion of the other sons.Hindu Law – Property – Impartible estate and the rule ofprimogeniture – Origin of – Discussed.

Hindu Law – Succession to impartible estate – Rights ofEcoparceners, if any – Held: An impartible estate is clothed withthe incidents of self-acquired and separate property – Such estateeven if inherited and ancestral, is not held by the coparcenary asa part of the coparcenary property, as the coparceners or membersof the joint Hindu family do not have the right to partition or rightto restrain alienation – Thus, any property belonging to the RulerFas a sovereign, which would devolve on succession by survivorshipby application of the rule of the primogeniture, would not bearan incidence of a coparcenary property.

Conclusion

Hindu Succession Act, 1956 – ss. 4, 5(ii) – Continuation ofthe custom of impartibility and the rule of primogeniture post theGcovenants and merger – Held: s.5(ii) is an exception to s.4 andprotects application of terms of any covenant or agreement enteredinto by the Ruler of any Indian State with the Government of Indiaor the terms of any enactment passed before commencement of theSuccession Act as per which the estate would descend to a singleHheir – Further, ratio of the Constitution Bench in Vir Rajendra Singh is a binding precedent for it recognizes the personal law ofsuccession of the Rulers and therefore, the rule/custom ofprimogeniture applicable to impartible estates belonging toerstwhile Rulers of the princely states – This custom/rule was notabrogated with the loss of sovereignty that the Rulers had forgonewith the signing of the merger agreement – Law of the land ispervious to the rule of primogeniture – Constitution of India –Arts.291, 366(22).

Constitution of India – Arts. 362, 291 – Lease rights of theproperty in question transferred to the then Maharaja of the Stateof Maihar – ‘BNS’, the ruler who succeeded to the gaddi of theState of Maihar bequeathed the palace of Maihar and privy pursein 1966 to his elder son of his first wife and rest of the propertiesincluding the property in question to his second wife for her son – Elder son sold the property in question to the appellant in 1968– Impugned judgment inter alia held that the property was part ofthe impartible estate governed by the rule of primogeniture –Appellants contended that the property being leasehold Nazul plotowned by the superior lessor, i.e. State of U.P., could not be treatedas a sovereign property in the hands of ‘BNS’ but, should be treatedas coparcenary property belonging to the joint Hindu family –Held: Rejected – Succession on death of ‘BNS’ had opened on13.10.68, which is before Art.362 relating to the rights andprivileges of the Indian Rulers was repealed – ‘BNS’ took over asa Ruler of the State of Maihar in the pre-independence era whenthe Rulers, though subject to British supremacy, were treated asabsolute sovereign Rulers within their own territories – There wasno distinction between public and private property of the Rulerssince the distinction would be counter to the basic attribute ofsovereignty.

Dismissing the appeals, the Court

HELD: 1.1 Under the Mitakshara Hindu Law, any propertyinherited by a male Hindu from his father, father’s father orfather’s father’s father is ancestral property. The maledescendant who inherits the property in the above manner didnot inherit the property absolutely as a separate property, butas coparcenary property. Coparcenary consists of only thosepersons who acquire by birth an interest in the coparcenary AB

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Aproperty. Succession in coparcenary property is by survivorship.No coparcener can dispose of his undivided coparcenary interestby way of gift except with the consent of the other coparceners.There are restrictions on alienation of the coparcenary property,which would be legally valid only when made by the whole bodyof coparceners where they are adults, by manager/Karta, orBfather subject to limits/conditions, and by a sole survivingcoparcener in some circumstances (Mulla Hindu Law 22[nd]Edition, 2016 at page 397, § 253 – ‘Who may alienate coparcenaryproperty’). Outside the limits of coparcenary, there is a fringeof persons, both male and female, who constitute the undividedCor joint family which consists of lineal descendants from a formerancestor and includes their wives and unmarried daughters.Joint Hindu family is, thus, a larger body consisting of group ofpersons who are united by the tie of sapindaship arising by birth,marriage or adoption. An individual who is a member of the jointHindu family can hold separate or individual property and inDaddition, if he is a coparcener, have an interest in thecoparcenary property of the joint Hindu family. However, withthe enforcement of the Succession Act with effect from 17[th] June1956, any property inherited by an heir vide intestate successionin the event of death occurring after 17[th] June 1956 is absoluteEor individual property and not ancestral property. [Paras 8-10][1062-A-E]

Surjit Lal Chhabda v. Commissioner of Income Tax,Bombay (1976) 3 SCC 142 : [1976] 2 SCR 164 –relied on.

FMulla Hindu Law 22[nd] Edition, 2016 at page 397, 253-‘Who may alienate coparcenary property’ – referredto.

1.2 An estate even if inherited and ancestral, partition ofwhich is prohibited by custom and succession whereto isGgenerally by the rule of primogeniture is referred to as an‘impartible estate’. An impartible estate is essentially a creatureof custom, though could also owe its origin to the term of a grant,a statute or a family settlement. By virtue of the rule ofprimogeniture, the eldest or the first son succeeds to theHproperty of the last holder to the exclusion of his younger brothers. Succession can also be under the rule of lineal maleprimogeniture which means that the descendant would be acontinual descendant of the eldest male member of the eldestbranch. [Para 11] [1062-G; 1063-A-B]

Thakore Shri Vinayasinhji (Dead) By LRs. v. KumarShri Natwarsinhji and Others (1988) Supp. SCC133 : [1988] SCR 1110 – relied on.

Shiba Prasad Singh v. Rani Prayag Kumari Debi andOthers AIR 1932 PC 216 – referred to.

1.3 An impartible estate is clothed with the incidents ofself-acquired and separate property. Impartible estate even ifinherited and ancestral, is not held by the coparcenary as a partof the coparcenary property, as the coparceners or members ofthe joint Hindu family do not have the right to partition or rightto restrain alienation. Though the right to survivorship is notinconsistent with the custom of impartible estate, albeit it isdifferent from the ordinary rule of succession under theMitakshara Hindu law where all sons of the father are entitledto equal share in his estate, for the law of succession when therule of primogeniture applies, is that the first-born son succeedsto the entire estate to the exclusion of the other sons. Anyproperty belonging to the Ruler as a sovereign, which woulddevolve on succession by survivorship by application of the ruleof the primogeniture, would not bear an incidence of acoparcenary property. The property belonged to one person, thatis, the sovereign Ruler as the very concept of sovereigntyimplies absolute authority, power and ownership that cannot besubjected to legal action of partition or injunction by anotherperson. Consequently, estates/properties of the sovereign Rulerwere impartible even though the property was ancestral. Themale members who had the right of survivorship, could not claimthe right to partition or the right to restrain alienation by thesovereign Ruler as they had no enforceable right that could belegally remedied. In short, the right or interest of sons or othermembers of the coparcenary was inconsistent with sovereigntyas a sovereign Ruler could not be subjected to the municipallaw and the municipal courts. Thus, as per the custom relatingto impartible estates and the rule of primogeniture, the Raja or A

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ARuler of a princely state would not hold the estate as the kartaor coparcener, but as the absolute owner and the estate wouldbe impartible. The son(s) would not acquire any interest in theimpartible estate by birth nor could they seek partition orrestrain alienation. On the death of the Ruler, the successionto the rulership, as also the impartible estate, was not under theBMitakshara law of survivorship but governed by the rule ofprimogeniture. There was, however, moral liability for providingmaintenance to others, be it the younger brothers or familymembers, which later on, by way of custom, virtually became anobligation. [Paras 13, 16] [1064-C-D; 1065-G; 1066-A-C-F-H]CMadhav Rao Jivaji Rao Scindia v. Union of India andAnother (1971) 1 SCC 85 : [1971] 3 SCR 9 ; PratapSingh v. Sarojini Devi and Others (1994) Supp 1 SCC734 : [1993] 1 Suppl. SCR 607 – relied on.

Baboo Gunesh Dutt Singh v. Maharaja MoheshurDSingh (1854-7) 6 MIA 164 : 1 Sar PCJ 521 – referredto.

Lieutenant Colonel James Tod, ‘Annals and Antiquitiesof Rajasthan’, Pg. 307 – referred to.

E1.3 Section 5(ii), in its present form, was recommended bythe Joint Committee in pursuance of its opinion, which meansthat the Rulers had impartible estates and succession to thesewas regulated by special covenants or agreements. Thus, afterdiscussion, the (iv) exception in the Bill was deleted and wasnot enacted as law. The effect thereof was that the custom ofFprimogeniture and impartible estate in the case of zamindars orthose holding jagirs would not be applicable post enforcementof the Succession Act with effect from 17[th] June 1956. Preambleof the Succession Act states that it is an Act to amend and codifythe law relating to intestate succession amongst Hindus and asGoriginally enacted did not profess to amend and codify the lawrelating to the nature of all the properties held by Hindus, withthe exception of Section 14 of the Succession Act. Section 4 ofthe Succession Act provides that the text, rule, interpretation,custom or usage of Hindu law will cease to have effect withHrespect to any matter for which provision is made in the Act and further any other law in force, which is inconsistent with theprovisions of the Act, will cease to apply. Section 6 of theSuccession Act deals with devolution of interest of a Hindu male(and daughter of a coparcener after amendment vide the HinduSuccession (Amendment) Act 2005) having interest in aMitakshara coparcenary as distinct from a joint Hindu family.Sections 8 and 9 of the Succession Act relating to the generalrules of succession in case of males and females, respectively,do not apply to a living person but apply on the successionopening on the death. Similarly, Section 30 of the Succession Actwhich deals with testamentary succession and empowers a Hinduto dispose of any property by will in accordance with theprovisions of the Indian Succession Act, 1925, does not ipso factoapply to a living person and applies in the event of the holder’sdeath. Section 5(ii) is an exception to Section 4 and protectsapplication of terms of any covenant or agreement entered intoby the Ruler of any Indian State with the Government of Indiaor the terms of any enactment passed before commencement ofthe Succession Act as per which the estate would descend to asingle heir. The provisions of the Succession Act, with thepossible exception of Section 14 and some amendments vide theHindu Succession (Amendment) Act 2005, do not apply unlessthe succession opens and, therefore, no legal rights of a livingperson would get affected. The ratio of the Constitution Benchin Vir Rajendra Singh is a binding precedent for it recognizesthe personal law of succession of the Rulers and therefore, therule/custom of primogeniture applicable to impartible estatesbelonging to erstwhile Rulers of the princely states. Thiscustom/rule was not abrogated with the loss of sovereignty thatthe Rulers had forgone with the signing of the mergeragreement. Relying on the Constitution, and sub-section (ii) toSection 5 of the Succession Act, this Court has, time and again,held that the law of the land is pervious to the rule ofprimogeniture. [Paras 33, 35, 38 and 39] [1077-E-F; 1079-H;1080-A-E; 1082-G-H; 1083-C]

Kunwar Shri Vir Rajendra Singh v. The Union of Indiaand Others (1969) 3 SCC 150 : [1970] 2 SCR 631 –followed.

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1056SUPREME COURT REPORTS

ATalat Fatima Hasan Through Her Constituted AttorneySh. Syed Mehdi Husain v. Nawab Syed Murtaza AliKhan (D) By LRs. And Others 2019 (10) SCALE 212– referred to.

1.6 It may be pertinent to state here that the successionBon death of ‘BNS’ had opened on 13[th] October 1968, which isbefore Article 362 relating to the rights and privileges of theIndian Rulers was repealed by the Constitution (26[th]Amendment) Act, 1971. Article 362, before it was repealed,stated that in exercise of the power of Parliament or of theLegislature of a State to make laws or in the exercise of theCexecutive power of the Union or a State, due regard shall be hadto the guarantee or the assurance given under any such covenantor agreement referred to in Article 291 with respect to thepersonal rights, privileges or dignities of the Ruler of an IndianState. ‘BNS’ had taken over as a Ruler of the State of Maihar in Dthe pre-independence era when the Rulers, though subject toBritish supremacy, were treated as absolute sovereign Rulerswithin their own territories. There was no distinction betweenpublic and private property of the Rulers since the distinctionwould be counter to the basic attribute of sovereignty. Further,leasehold properties situated outside the princely states haveEbeen held to be State or sovereign property. Therefore, thecontention of the appellants that the property being leaseholdNazul land situated outside the princely state was personalproperty must be rejected in the absence of any other evidenceor material to rebut the presumption that the property was a partFof the impartible estate belonging to the sovereign Ruler. Onthe other hand, inheritance of the property post the death of ‘RS’by the new Ruler including ‘BNS’ by application of the rule ofprimogeniture to the exclusion of others son(s) would indicatethat it was treated as a State or sovereign property. [Paras 40-42] [1083-F-G; 1084-B-G; 1085-A]GDraupadi Devi and Others v. Union of India andOthers, (2004) 11 SCC 425 : [2004] 4 Suppl. SCR223 – relied on.

1.7 The property was a part of the impartible property i.e.,Hthe property though ancestral was not a part of the coparcenary A

property, but was a part of the estate of the sovereign Ruler,‘BNS’. Further, he could transfer the property inter-vivos ormake a bequest by way of a will. The contention that theproperty was a separate or personal property and, therefore, nota part of the impartible property has not been established andhas not been proved by the appellants by leading evidence andmaterial to dispel the presumption. The final findings of the HighCourt are affirmed. There would be no order as to costs. [Paras43-44] [1085-B-D]

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Revathinnal Balagopala Varma v. Shri PadmanabhaDasa Bala Rama Varma (since deceased) and Others(1993) Supp 1 SCC 233 : [1991] 3 Suppl. SCR 30 –relied on.

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Venkata Surya Mahipati Rama Krishna Rao Bahadurv. Court of Wards and Others (1899) LR 26 Ind App83 ; Sri Rajah Velugoti Kumara Krishna YachendraVaru and Others v. Sri Rajah Velugoti SarvagnaKumara Krishna Yachendra Varu and Others (1969)3 SCC 281; Bhaiya Ramanuj Pratap Deo v. LaluMaheshanuj Pratap Deo and Others (1981) 4 SCC613 : [1982] SCR 417 ; D.S. Meramwala Bhayawalav. Bai Shri Amarba Jethsurbhai (1968) 9 GLR 609 ;Mirza Raja Pushpavathi Vijayaram Gajapathi RajManne Sultan Bahadur etc. v. Sri PushavathiVisweswar Gajapathiraj Rajkumar of Vizianagaramand Others AIR 1964 SC 118 : [1964] SCR 403 ; N.Padmamma and Others v. S. Ramakrishna Reddy andOthers (2008) 15 SCC 517 : [2008] 9 SCR 535 ; N.Padmamma and Others v. S. Ramakrishna Reddy andOthers (2015) 1 SCC 417 : [2014] 10 SCR 641 ; TikkaShatrujit Singh & Others v. Brig Sukhjit Singh &Another ILR 2011 (1) Del 704 – referred to.

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Advocate General of Bombay v. Amerchund 12 ER 340,345 : (1830) 1 Knapp 316, 329-30 – referred to.

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CaseLawReference

From the Judgment and Order dated 12.09.2008 of the HighCourt of Judicature at Allahabad in Second Appeal Nos. 1930 and 2017Fof 1983

S.R. Singh, Sr. Adv., Krishna Kumar Yadav, Ankur Yadav,Ms. Sunita Pandit, Abhisth Kumar, Advs. for the Appellants.

Dinesh Dwivedi, Sr. Adv., Ms. Preetika Dwivedi, AbhishekChaudhary, Krishnam Mishra, Yasharth Kant, Nishant Singh, Advs. forGthe Respondents.

The Judgment of the Court was delivered by SANJIV KHANNA, J.

1. These civil appeals arise out of common judgment and decreeHdated 12[th] September 2008 passed by the High Court of Judicature at Allahabad in Second Appeal No. 1930 of 1983 {Chandra Nath Kala(D) through LRs. v. Trijugi Narain (D) through LRs. and Others}and Second Appeal No. 2017 of 1983 {Sankoo and Another v. TrijugiNarain (D) through LRs and Others}.

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2. The issue raised in the present appeals relates to the natureof the property, that is, whether the perpetual leasehold rights in plotNo. 16 (Old Plot No. 9), Chaukhandi Kydganj, Allahabad – Nazul Plot(‘the property’ for short) was coparcenary joint Hindu family propertyor being a part of impartible estate of the State of Maihar, was clothedwith the incidence of self-acquired and separate property.

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3. In order to decide the controversy, we would record the factsin brief.

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(a) One Bachchu Lonia had acquired the property by meansof perpetual lease deed dated 12[th] September 1873executed by the Government. After the death ofBachchu Lonia, his son Ram Bharose by means of aregistered sale deed dated 12[th] August 1896 hadtransferred the perpetual lease rights to Raghubir Singh,the then Maharaja of the State of Maihar.

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(b) Subsequently, Brij Nath Singh had succeeded to thethrone/gaddi of the State of Maihar. Brij Nath SinghEvide registered will dated 11[th] February 1966 hadbequeathed the palace of Maihar and privy purse toGovind Singh, elder son of his first wife Surendra Kumariand rest of the properties including the property to hissecond wife Rani Tej Kumari for her son after makingprovisions for her maintenance during her lifetime. BrijFNath Singh had died on 13[th] October 1968.

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(c) Notwithstanding this will, Govind Singh, elder son of BrijNath Singh from his first wife, as peshwa and karta ofthe joint Hindu family, had sold the property videregistered sale deed dated 18[th] November 1968 to TrijugiGNarain Dubey and Surendra Nath Prayagwal.

(d) On 20[th] November 1968, Chandra Nath Kala andSankoo had instituted Original Suit No. 194 of 1968 forpermanent injunction against Trijugi Narain and SurendraNath claiming right in the property by adverse possession H

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for last thirty years. Later on, they had filed anapplication for amendment of the plaint as Vimal KumarSingh, power of attorney holder of Rani Tej Kumari, hadexecuted sale deed dated 6[th] June 1969 of the propertyin favour of Chandra Nath Kala, which application foramendment claiming title based on the sale deed wasallowed by the trial court. However, this order allowingthe amendment was set aside by the High Court videorder dated 10[th] December 1971.

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(e) Chandra Nath Kala had then on 7[th] March 1972instituted Original Suit No. 64 of 1972 for declarationand injunction against Trijugi Narain and Surendra Nath,impleading Sankoo as the third defendant predicating hisright on the sale deed dated 6[th] June 1969 executed inhis favour by Rani Tej Kumari. Sankoo admitted theclaim of Chandra Nath Kala, while Trijugi Narain andSurendra Nath had filed written statement, inter alia,stating that Brij Nath Singh had no right to execute thewill in favour of Rani Tej Kumari inasmuch as theproperty was coparcenary property of the joint Hindufamily. Further, Govind Singh being the karta of thefamily, had validly executed the sale deed dated 18[th]November 1968 in favour of Trijugi Narain and SurendraNath.

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4. The trial court dismissed the two suits by separate judgments,both dated 25[th] March 1983, deciding several issues reference to whichis not required in view of the limited challenge raised by the appellants,Falbeit it was held that Brij Nath Singh could not have by a willbequeathed the property that belonged to the joint Hindu family and,therefore, the sale deed dated 6[th] June 1969 executed by Rani TejKumari was void as she had no title. Further, the transfer by GovindSingh as the karta of the joint Hindu family in favour of Trijugi NarainGand Surendra Nath was for benefit of the estate and absolutely legal.Suit No. 194 of 1968 was dismissed on the ground that Chandra NathKala and Sankoo had failed to prove acquisition of any right by adversepossession.

5. Civil Appeal No. 476 of 1983 filed against the judgment andHdecree in Suit No. 194 of 1968 was dismissed by the Additional District Judge, Allahabad by judgment dated 25[th] August 1983. By a separatejudgment of the same date, Civil Appeal No. 517 of 1983 preferredagainst the judgment and decree in Suit No. 64 of 1972 was dismissed,inter alia, recording that Maihar State had ceased to exist in the year1948 and, therefore, the rule of primogeniture governing impartibleestates had ceased to apply. Consequently, Govind Singh’s legal rightto the property inherited from his father could not have been takenaway by Brij Nath Singh by executing a will giving only the palace andprivy purse to Govind Singh and rest of the properties to Rani TejKumari.

6. The High Court, by the impugned common judgment dated 12[th]September 2008, in the two connected appeals, has reversed the findingsof the trial court and the appellate court, inter alia, holding that theproperty was a part of the impartible estate governed by the rule ofprimogeniture. Accordingly, no member of the joint Hindu familyincluding Govind Singh had a right in the property by birth. Brij NathSingh was fully entitled to bequeath the property by will, which he haddone vide will dated 11[th] February 1966 in favour of Rani Tej Kumari.

7. We would like to divide the question raised, thoughinterconnected, into two parts. First, we are required to examine thecustomary law relating to impartibility of an estate and succession underthe rule of primogeniture, and whether it was applicable to the property.The second aspect relates to the legal effect of the lapse of thesovereign paramountcy with the signing of the covenant and mergeragreement by Brij Nath Singh with the Dominion of India and theenactment of the Hindu Succession Act, 1956 (‘Succession Act’ forshort). In other words, whether the impartible properties of the formerRuler post the merger agreement or the enactment of the SuccessionAct had ceased to continue as impartible estate and were convertedinto coparcenary property of the joint Hindu family. While deciding thequestion, we would also examine the contention of the appellants thatthe perpetual leasehold rights being Nazul land were held as personalproperty of the Ruler and were not part of the sovereign or stateproperties of Raghubir Singh and Brij Nath Singh.

8. In order to decide the question, we must first notice thedifference between the joint Hindu family and coparcenary.Coparcenary, as observed in Surjit Lal Chhabda v. Commissioner of AB

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AIncome Tax, Bombay[1], is a narrower body than the joint Hindu family.Under the Mitakshara Hindu Law, any property inherited by a maleHindu from his father, father’s father or father’s father’s father isancestral property. The male descendant who inherits the property inthe above manner did not inherit the property absolutely as a separateproperty, but as coparcenary property. Coparcenary consists of onlyBthose persons who acquire by birth an interest in the coparcenaryproperty. Succession in coparcenary property is by survivorship. Nocoparcener can dispose of his undivided coparcenary interest by wayof gift except with the consent of the other coparceners. There arerestrictions on alienation of the coparcenary property, which would beClegally valid only when made by the whole body of coparceners wherethey are adults, by manager/Karta, or father subject to limits/conditions,and by a sole surviving coparcener in some circumstances (see MullaHindu Law 22[nd] Edition, 2016 at page 397, § 253 – ‘Who may alienatecoparcenary property’).

D9. Outside the limits of coparcenary, there is a fringe of persons,both male and female, who constitute the undivided or joint family whichconsists of lineal descendants from a former ancestor and includes theirwives and unmarried daughters. Joint Hindu family is, thus, a largerbody consisting of group of persons who are united by the tie ofsapindaship arising by birth, marriage or adoption. An individual whoEis a member of the joint Hindu family can hold separate or individualproperty and in addition, if he is a coparcener, have an interest in thecoparcenary property of the joint Hindu family.

10. However, with the enforcement of the Succession Act witheffect from 17[th] June 1956, any property inherited by an heir videFintestate succession in the event of death occurring after 17[th] June 1956is absolute or individual property and not ancestral property. In thepresent case, we are not concerned with the concept of deemed partitionof existing coparcenary property on death of a coparcener, executionof a will by coparcener of his undivided interest vide Section 30 of theGSuccession Act or the amendments made in the Succession Act videAct No. 39 of 2005 applicable with effect from 9[th] September 2005.

11. An estate even if inherited and ancestral, partition of whichis prohibited by custom and succession whereto is generally by the rule of primogeniture is referred to as an ‘impartible estate’. An impartibleestate is essentially a creature of custom, though could also owe itsorigin to the term of a grant, a statute or a family settlement. By virtueof the rule of primogeniture, the eldest or the first son succeeds to theproperty of the last holder to the exclusion of his younger brothers.Succession can also be under the rule of lineal male primogeniturewhich means that the descendant would be a continual descendant ofthe eldest male member of the eldest branch. The distinction betweenthe impartible estate, to which the rule of primogeniture applies, andcoparcenary property has been explained in Shiba Prasad Singh v.Rani Prayag Kumari Debi and Others[2] in the following words:

“Impartibility is essentially a creature of custom. In the case ofordinary joint family property, the members of the family have:(1) the right of partition; (2) the right to restrain alienations bythe head of the family except for necessity; (3) the right ofmaintenance; and (4) the right of survivorship. The first of theserights cannot exist in the case of an impartible estate, thoughancestral, from the very nature of the estate. The second isincompatible with the custom of impartibility as laid down inSartaj Kuari’s case and Rama Krishnan vs. Venkata Kumara,and so also the third as held in Gangadhara vs. Rajah ofPittapur. To this extent the general law of the Mitakshara hasbeen superseded by custom, and the impartible estate, thoughancestral, is clothed with the incidents of self-acquired andseparate property. But the right of survivorship is not inconsistentwith the custom of impartibility. This right therefore still remains,and this is what was held in Baijnath’s case. To this extent theestate still retains its character of joint family property, and itsdevolution is governed by the general Mitakshara law applicableto such property. Though the other rights which a coparceneracquires by birth in joint family property no longer exist, thebirthright of the senior member to take by survivorship stillremains. Nor is this right a mere spes successionis similar tothat of a reversioner succeeding on the death of a Hindu widowto her husband’s estate.”

12. The aforesaid passage in Shiba Prasad Singh (supra) hasbeen quoted with approval in a number of judgments of this Court, 2 AIR 1932 PC 216

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Aincluding Thakore Shri Vinayasinhji (Dead) By LRs. v. Kumar ShriNatwarsinhji and Others[3], wherein it has been observed as under:

“The impartible estate, though ancestral, is clothed with theincidents of self-acquired and separate property, except asregards the right of survivorship which is not inconsistent withBthe custom of impartibility…”

13. It is, therefore, well established that an impartible estate isclothed with the incidents of self-acquired and separate property.Impartible estate even if inherited and ancestral, is not held by thecoparcenary as a part of the coparcenary property, as the coparcenersCor members of the joint Hindu family do not have the right to partitionor right to restrain alienation. Though the right to survivorship is notinconsistent with the custom of impartible estate, albeit it is differentfrom the ordinary rule of succession under the Mitakshara Hindu lawwhere all sons of the father are entitled to equal share in his estate,for the law of succession when the rule of primogeniture applies, isDthat the first-born son succeeds to the entire estate to the exclusion ofthe other sons.

14. As observed above, impartibility of an estate andprimogeniture can have its origin in four forms, including custom. Thereare judicial precedents acknowledging and accepting the custom ofEimpartible estate and that the rule of primogeniture was a general ruleof succession in all the princely states. We must take judicial notice ofthis custom as applicable to princely states vide Section 48 of theEvidence Act,1872. Lieutenant Colonel James Tod, in his work titled‘Annals and Antiquities of Rajasthan’[4], at page 307 states:

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“...The law of primogeniture prevails in all Rajpoot sovereignties;the rare instance in which it has been set aside, are onlyexceptions to the rule.”

G.K. Mitter, J. in his judgment in Madhav Rao Jivaji RaoScindia v. Union of India and Another[5] had observed:G

“It would appear that invariably the rule of lineal maleprimogeniture coupled with the custom of adopting a son prevailed H

3 (1988) Supp. SCC 133

4 Oxford University Press, 1920. Reprinted in 1978 by M.N. Publishers, New Delhi 5 (1971) 1 SCC 85

in the case of Hindu Rulers who composed of the bulk of thebody.”

In Baboo Gunesh Dutt Singh v. Maharaja Moheshur Singh[6],it was stated as follows:

“We apprehend that the principle upon which we are about toproceed in this case admits of no doubt or question whatever.By the general law prevailing in this District, and indeed generallyunder the Hindoo law, estates are divisible amongst the sons,when there are more than one son; they do not descend to theeldest son, but are divisible amongst all. With respect to a Rajas a Principality, the general rule is otherwise, and must be so.It is a Sovereignty, a Principality, a subordinate Sovereignty andPrincipality no doubt, but still a limited Sovereignty andPrincipality, which, in its very nature excludes the idea of divisionin the sense in which that term is used in the present case.”

15. In Pratap Singh v. Sarojini Devi and Others[7] referencewas made to the decision in Baboo Ganesh Dutt Singh (supra) andMitter, J.’s opinion in Madhav Rao Jivaji Rao Scindia (supra) to holdthat:

“65. Though impartibility and primogeniture, in relation to zamindariestates or other impartible estates are to be established bycustom, in the case of a sovereign Ruler, they are presumed toexist.”

This Court in Pratap Singh (supra) has reiterated the aboveprinciples and also observed that impartible estate and the applicationof the rule of primogeniture in the case of the sovereign Ruler must bepresumed to exist, whereas in the case of zamindari estate or anotherimpartible estate, the rule of primogeniture must be established by wayof custom.

16. Any property belonging to the Ruler as a sovereign, whichwould devolve on succession by survivorship by application of the ruleof the primogeniture, would not bear an incidence of a coparcenaryproperty. The property belonged to one person, that is, the sovereignRuler as the very concept of sovereignty implies absolute authority, 6 (1854-7) 6 MIA 164: 1 Sar PCJ 521

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Apower and ownership that cannot be subjected to legal action of partitionor injunction by another person. Consequently, estates/properties of thesovereign Ruler were impartible even though the property was ancestral.The male members who had the right of survivorship, could not claimthe right to partition or the right to restrain alienation by the sovereignRuler as they had no enforceable right that could be legally remedied.BIn short, the right or interest of sons or other members of thecoparcenary was inconsistent with sovereignty as a sovereign Rulercould not be subjected to the municipal law and the municipal courts.In an unreported decision in Civil Appeal No. 226 of 1965 titled MahantHardial Singh v. Ajmer Singh decided on 20[th] November 1968 withCregard to the powers of the Maharaja of Patiala, this Court had observed:

“We think that this appeal must fail on the short ground that thesale in favour of Seth Banarsi Das cannot be impugned in viewof the orders made by His Highness the Maharaja of Patiala. Itmust be remembered that at the time the transaction took place,DPatiala was a native State and the Maharaja enjoyed uncontrolledsovereign powers. At that time he was the supreme legislature,the supreme judiciary and the supreme head of the executive.There was no constitutional limitation on his authority to act inany of the capacities. His orders were expressions of theEsovereign will and they were binding in the same way as anyother law, nay, they would override all other laws which were inconflict with them. So long as his order held the field that alonewould govern or regulate the rights of the parties concernedthough it could have been annulled or modified by him at anytime he willed.”F

Thus, as per the custom relating to impartible estates and therule of primogeniture, the Raja or Ruler of a princely state would nothold the estate as the karta or coparcener, but as the absolute ownerand the estate would be impartible. The son(s) would not acquire anyinterest in the impartible estate by birth nor could they seek partition orGrestrain alienation. On the death of the Ruler, the succession to therulership, as also the impartible estate, was not under the Mitaksharalaw of survivorship but governed by the rule of primogeniture. Therewas, however, moral liability for providing maintenance to others, be itthe younger brothers or family members, which later on, by way ofHcustom, virtually became an obligation.

17. The Privy Council in Venkata Surya Mahipati RamaKrishna Rao Bahadur v. Court of Wards and Others[8] after referringto the earlier case law had held that a holder of an impartible estatecan alienate the estate by way of a gift inter-vivos, or even by a will,though the family is undivided; the only limitation on his power wouldflow from the family custom to the contrary, or from the condition ofthe tenure which has the same effect. The above dictum has beenapproved by this Court in Sri Rajah Velugoti Kumara KrishnaYachendra Varu and Others v. Sri Rajah Velugoti SarvagnaKumara Krishna Yachendra Varu and Others[9]; Bhaiya RamanujPratap Deo v. Lalu Maheshanuj Pratap Deo and Others[10]; PratapSingh (supra) and other cases.

18. In Adocate General of Bombay v. Amerchund[11], LordTenterden had during the course of discussion asked:

“What is the distinction between the public and private propertyof an absolute sovereign? You mean by public property, generallyspeaking, the property of the State, but in the property of anabsolute sovereign, who may dispose of everything at any time,and in any way he pleases, is there any distinction?” [...]

Lord Tenterden went on to observe in his judgement:

“another point made, which applies itself only to a part of theinformation, is, that the property was not proved to have beenthe public property of the Peishwa. Upon that point I havealready intimated my opinion, and I have the concurrence of theother Lords of the Council with me in its, that when you arespeaking of the property of an absolute sovereign there is nopretence for drawing a distinction, the whole of it belongs to himas sovereign, and he may dispose of it for his public or privatepurposes in whatever manner he may think proper.”

19. The legal incidents of sovereign and State property wereexplained by the Gujarat High Court in D.S. Meramwala Bhayawalav. Bai Shri Amarba Jethsurbhai[12]in the following words:

8 (1899) LR 26 Ind App 839 (1969) 3 SCC 281

10 (1981) 4 SCC 61311 12 ER 340, 345: (1830) 1 Knapp 316,329-30

12 (1968) 9 GLR 609

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A“5. […] As a sovereign ruler he would be the full and completeowner of the Estate entitled to do what he likes with the Estate.During his lifetime no one else can claim an interest in the Estate.Such an interest would be inconsistent with his sovereignty. Togrant that the sons acquire an interest by birth or adoption in theEstate which is a consequence arising under the municipal lawBwould be to make the Chief who is the sovereign Ruler of theEstate subject to the municipal law. Besides, if the sons acquirean interest in the Estate by birth or adoption, they would beentitled to claim the rights enumerated above but those rightscannot exist in a sovereign Estate. None of these rights can beCenforced against the Chief by a remedy in the Municipal Courts.The Chief being the sovereign Ruler, there can be no legalsanction for enforcement of these rights. The remedy forenforcement of these rights would not be a remedy at law butresort would have to be taken to force, for the Chief as thesovereign Ruler would not be subject to municipal law and hisDactions would not be controlled by the municipal Courts. Nowit is impossible to conceive of a legal right which has no legalremedy. If a claim is not legally enforceable, it would notconstitute a legal right and, therefore, by the very nature of asovereign Estate, the sons, cannot have these rights and if theseErights cannot exist in the sons, it must follow as a necessarycorollary that the sons do not acquire an interest in the Estateby birth or adoption.”

The legal position as explained in paragraphs 14 to 16 (supra)was highlighted in D.S. Meramwala (supra) stating that there was notFeven a single instance where the son(s) were recognized to have aninterest in the estate for partitioning the estate during the lifetime ofthe Chief. It is, therefore, clear that when the rule of primogeniture isapplicable, the principles of ancestral coparcenary property would notapply. In the case of an impartible estate, the son(s) would not get anyinterest by birth, as a son of Hindu has interest by birth in coparcenaryGproperty.

20. Opinion of Lord Tenterden was one of the cases cited withapproval in Revathinnal Balagopala Varma v. Shri PadmanabhaDasa Bala Rama Varma (since deceased) and Others[13]. This aspect H13 (1993) Supp 1 SCC 233

was further elucidated by N.D. Ojha, J. in Revathinnal BalagopalaVarma (supra) (see paragraph 30).

21. With passage of the Indian Independence Act, 1947, theBritish bid farewell to the Indian empire and transferred the politicalpower. India was also partitioned. Question would arise whether thelegal position had changed post 15[th] August 1947 on independence inlight of the fact that the Rulers of the princely states had joined theIndian Union after lapse of the British paramountcy. Pre-partition Indiacomprised of about 4095852 sq. kms. The British Crown had directcontrol over 2241505 sq. kms., and the princely or native states, about565 in number, had rights on 1854346 sq. kms. Apart from the transferof power and administration, integration of the princely states in theindependent Indian Union was a complex and difficult task. In July 1947,several Rulers of princely states and state ministers had met SardarVallabhbhai Patel, Home Minister in the interim Government, to discussand to determine their future status. Mr. V.P. Menon in his work‘Integration of the Indian States’[14] states that the princely states toparticipate in the Constituent Assembly, were required to give up theirpowers and accede to the Indian Union on three subjects, namely,defence, foreign affairs and communications, which they agreed aftera series of informal meetings and discussions with the Rulers of theprincely states and their advisors who had realised the public sentimentsand impact of transfer of political power. Accordingly, instruments ofaccession were signed under which external affairs, defence andcommunications were ceded to the Dominion by the Rulers of most ofthe princely states with the exception of Junagarh, Hyderabad andKashmir.

22. The next step was the integration of the princely states, whichhappened in 1948-49, with the Rulers/Rajas signing merger agreementsand covenants. Thereupon, the princely states merged in the States orinto the Unions in the administered areas, thereby ensuring transfer ofabsolute power from the individual Rulers to the masses i.e. the citizensof free India. Merger agreements ensured integration of the formerprincely states into the Union of India. In return of surrender of absolutepower and sovereignty, the Rulers were assured of fair allocation ofassets, properties and fixed personal income by way of a privy purse.The merger agreements had also granted privileges and concessions 14 Orient Longman 1985, 107.

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Ato the former princes who had enjoyed the status of a Ruler. At thisstage, it became necessary to demarcate personal properties of theRulers and the State properties. The former remained the property ofthe erstwhile princes while the latter became property of the State.

23. The principles followed by the Government of India in thisBprocess, are enunciated by Mr. V.P. Menon in his work in the followingmanner:

“The broad principles evolved at this conference were as follows.Immovable properties were to be allotted to the Rulers on thebasis of previous use, having regard to their actual needs andCthe needs of the administration. Farms, gardens and grazingareas were allowed to be retained by some of the Rulers, butthe position of the Ruler in respect of these would be the sameas that of a private landholder and he would be subject to therevenue laws and assessments. With regard to investments andcash balance, only those to which the State could lay no claim,Dwere to be recognized as the private property of the Ruler.Though we laid no claim to the personal jewellery of the rulingfamily, such ancestral jewellery as was ‘heirloom’ was to bepreserved for the ruling family; and valuable regalia would remainin the custody of the Ruler for use on ceremonial occasion…”

E24. The principles followed by the Government of India are clearlyreflected in the White Paper on the Indian States, the relevant portionof which reads:

“157.In the past the Rulers made no distinction between privateand State property; they could freely use for personal purposesFany property owned by their respective States. With theintegration of the States, it became necessary to define anddemarcate clearly the private property of the Ruler.”

25. There is no doubt that erstwhile Rulers ceased to besovereign post the merger agreements. However, they were entitledGto benefits in terms of concessions which were granted under themerger agreements which had postulated as under:

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Article III: The Ruler of each of the States specied in theHSchedule to this agreement (hereinafter referred to as “the Covenanting States”) hereby cedes to the Government of India,with effect from the aforesaid day, fuII and exclusive authority,jurisdiction and powers for, and in relation to, the governance ofthat State; and thereafter the Government of India shall becompetent to exercise the said powers, authority and jurisdictionin such manner and through such agency as it may think fit.

Article IV: (1) The Ruler of each Covenanting State shall beentitled to receive annually from the Government of India for hisprivy purse the amount specied against that Covenanting Statein the Schedule to this Agreement.

(2) The said amount is intended to cover all the expenses of theRuler and his family including expenses on account of personalstaff, maintenance of his residences, marriages and otherceremonies, etc., and shall neither be increased nor reduced forany reason whatsoever.

(3) The said amount shall be free of all taxes and shall be paidin four equal instalments in advance at the beginning of eachquarter.

Article V: The Ruler of each Covenanting State, as also themembers of his family shall be entitled to all the personalprivileges, dignities and titles enjoyed by them, whether within oroutside the territories of that State, immediately before the 15[th]day of August 1947.

Article VI: The Government of India guarantees the succession,according to law and custom, to the gaddi of each CovenantingState, and to the personal rights, privileges, dignities and titles ofthe Ruler thereof.

Article VII: (1) The Ruler of each Covenanting State shall beentitled to the full ownership, use and enjoyment of all privateproperties (as distinct from State properties) belonging to him onthe date of his making over the administration of that State tothe Raj Pramukh in pursuance of the Covenant.

(2) If any dispute arises as to whether any item of property isthe private property of the Ruler or State property, it shall bereferred to a judicial ofcer to be nominated by the Governmentof India, and the decision of that ofcer shall be nal and bindingon all parties concerned.

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Article VIII: No inquiry shall be made by or under the authorityof the Government of India, and no proceedings shall lie in anyCourt, against the Ruler of any Covenanting State, whether in apersonal capacity or otherwise, in respect of anything done oromitted to be done by him or under his authority during the periodof his administration of that State.

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26. The Constitution of India as enacted, vide clause 2 in Article363, had defined the expression ‘Indian State’ as any territory recognisedbefore the commencement of the Constitution by his Majesty or theCGovernment of the Dominion of India as being a State and the ‘Ruler’as were recognised before such commencement by his Majesty or theGovernment of Dominion of India as the Ruler of Indian State. The‘ruler’ as defined meant the Prince, Chief or any other person by whomany such covenant or agreement as is referred to in clause (1) of Article291 was entered into and who for the time being was recognised byDthe President as Ruler of the princely state.

27. It is, therefore, clear that upon signing the merger agreement,the Rulers had lost their sovereignty and, in a way, had become ordinarycitizens with certain special rights and privileges as mentioned in theConstitution.E

28. The legal effect of the merger agreements and whether thecustomary rule of impartible estate would cease to be applicable byapplying the doctrine of ‘cessante ratione legis, cessat ipsa lex’ hasbeen examined in several decisions. The argument against continuationof the customary rule is predicated on the plea that primogeniture andimpartibility, though not attributes of sovereignty, were customs whichexisted because the rulership existed, and therefore when there wasloss of rulership, there was no need for the custom to exist. Thiscontention was examined in Revathinnal Balagopala Varma (supra)and squarely rejected by S. Ranganathan, J., in the following words:

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“5. Before discussing the principal contentions urged on behalfof the appellant, it may be convenient to clear up a ground putup on behalf of the first respondent purporting to be a completeanswer to the claim of the appellant ... It settled the issue asbetween the Ruler and the Government of India and allowed thesaid properties to be retained by the Ruler without being H

surrendered to the Government of India. It did not, however,affect or prejudice the rights, if any, of third parties in theproperties so declared. It created no title in the Ruler to anyproperties other or higher than what belonged to him immediatelybefore the appointed day ... It did not affect in any way thenature of any property in his hands or the claims, if any, whichothers might have had against the Ruler qua those properties.These propositions are clear form the decisions in VisweswarRao v. State of M.P. (1952 SCR 1020), Dalmia Dadri CementCo. Ltd. v. CIT (1959 SCR 729) and Rajendra Singh v. Unionof India (1970-2 SCR 631) as well as the clarification containedin para 4 of the Government of India’s memorandum dated18.05.51 (Ex. A-4).”

29. N.D. Ojha, J. in the same judgment referred to and approvedthe judgment of the Gujarat High Court in D.S. Meramwala (supra)wherein it has been held as under:

“57. ... Now it was not disputed on behalf of Meramwala that ifprior to merger the Estate did not partake of the character ofancestral coparcenary property, the properties left withBhayawala under the merger agreement would not be ancestralcoparcenary properties : if Meramvala did not have any interestin the Estate prior to merger, he would have no interest in theproperties which remained with Bhayawala under the mergeragreement. It was not the case of Meravala and it could not bethe case since the merger agreement would be an act of Statethat as a result of the merger agreement any interest wasacquired by him in the properties held by Bhayawala. Bhayawalawas, therefore, the full owner of the properties held by him andwas competent to dispose of the same by will. ...

... The argument of Mr. I.M. Nanavati however was that theeffect of applicability of the rule of primogeniture by theparamount power was that the rights of coparceners under theordinary Hindu law were eclipsed: these rights were not destroyedbut they remained dormant and on the lapse of paramountcy, theshadow of the eclipse being removed, the rights sprang into fullforce and effect. This argument is wholly unsustainable onprinciple...”

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The ratio was accepted by S. Ranganathan, J. (see paragraph11), wherein he observed that if the issue dealt with had been anordinary impartible estate the matter would have been different but, incase of a sovereign state whose Chief was earlier a sovereign Ruler,the acquisition by a sovereign Ruler cannot be claimed to be joint familyproperty.

30. In Revathinnal Balagopala Varma (supra), N.D. Ojha, J.had thereafter proceeded to observe:

“63. In this connection it has to be kept in mind that the mode ofsuccession of a sovereign ruler and the powers of such a rulerare two different concepts. Mode of succession regulates theprocess whereby one sovereign ruler is succeeded by the other.It may inter alia be governed by the rule of general primogenitureor lineal primogeniture or any other established rule governingsuccession. This process ends with one sovereign succeedinganother. Thereafter what powers, privileges and prerogatives areto be exercised by the sovereign is a question which is notrelatable to the process of succession but relates to the legalincidents of sovereignty.

64. If someone asserts that to a particular property held by asovereign the legal incidents of sovereignty do not apply, it willhave to be pleaded and established by him that the said propertywas held by the sovereign not as sovereign but in some othercapacity. In the instant case apart from asserting that theproperties in suit belonged to a joint family and respondent 1 eventhough a sovereign ruler, held them as the head of the family towhich the property belonged, the appellant has neither specificallypleaded nor produced any convincing evidence in support of suchan assertion. It has been urged on behalf of the appellant thatonly the eldest male offspring of the Attingal Ranis could, bycustom, be the ruler and all the heirs of the Ranis who constitutedjoint Hindu family would be entitled to a share in the propertiesof the Ranis and the properties in suit were held by respondent1 as head of the tarwad even though impartible in his hands. Thisplea has been repelled by the trial court as well as by the HighCourt and nothing convincing has been brought to our notice onthe basis of which the presumption canvassed on behalf of theappellant could be drawn and the findings of the courts below reversed. We are dealing with an appeal and as has been pointedout by this Court in Thakur Sukhpal Singh v. Thakur KalyanSingh it is the duty of the appellant to show that the judgmentunder appeal is erroneous.”

31. Even earlier, in Mirza Raja Pushpavathi VijayaramGajapathi Raj Manne Sultan Bahadur etc. v. Sri PushavathiVisweswar Gajapathiraj Rajkumar of Vizianagaram and Others[15],this Court had observed that custom outlives condition of things thatgave birth to it, with the following observations:

“The argument that the abolition of Zamindari estate mustautomatically terminate the customary impartibility of the jewelswhich were treated as regalia by the family, overlooks the factthat many times custom outlives its condition of things which gaveit birth. As was observed by Lord Atkinson in delivering theopinion of the Board in Rao Kishore Singh vs Mst Gahenabai,AIR 1919 P.C.100, “it is difficult to see why a family should notsimilarly agree expressly or impliedly to continue to observe acustom necessitated by the condition of things existing in primitivetimes after that condition had completely altered. Therefore, theprinciple embodied in the expression ‘cessat ratio cessat lex’does not apply where the custom outlives the condition of thingswhich gave it birth.” That is why we think, the contention raisedon the ground that there was no justification for regalia in earlytimes at all and that if initially there was any justification, it ceasedafter the abolition of the Zamindari Estates, cannot be upheld.

In the matter of proof of family custom, it is not the technicalitiesof the law that would prevail but the evidence of conduct whichunambiguously proves that the parties wanted to continue the oldcustom.”

32. Any doubt or debate on whether the custom of impartibilityand the rule of primogeniture had continued post the covenants andmerger was set at rest by this Court in Pratap Singh (supra) whereinspecific reference was made to Section 5(ii) of the Succession Act andthe debates when the Bill was introduced in the Rajya Sabha. Therelevant portion of this decision reads as under:

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“71. Section 5 of the Hindu Succession Act, 1956 (Central Act30 of 1956) states as follows:

“This Act shall not apply to —

(i) ***

(ii) any estate which descends to a single heir by the termsof any covenant or agreement entered into by the Rulerof any Indian State with the Government of India or bythe terms of any enactment passed before thecommencement of this Act;

(iii) **

*”

72. In Mulla’s Hindu Law, 16th Edn. at page 766 it is stated:

“The exception is limited to the impartible estates of Rulers ofIndian States succession to which is regulated by specialcovenants or agreements and to estates, succession to which isregulated by any previous legislation, and the Estate and PalaceFunds mentioned in sub-section (iii).”

73. At the stage of Bill, in 1954 it was clearly brought out in theRajya Sabha Debates at pages 7115 and 7116 as under:

“Then there is another clause, sub-clause (ii) which says:

‘any estate which descends to a single heir by the terms of anycovenant or agreement entered into by the Ruler of any IndianState with the Government of India or by the terms of anyenactment passed before the commencement of this Act;’

This clause has been put in because, as we know, it is only afterthe attainment of independence that on a large scale there hasbeen integration of States, and there are certain agreements andcovenants which have been entered into between the Governmentand those Rulers of States, and some arrangements have beenmade only very recently with respect to their line of succession.It is a special thing. What it says is: ‘any covenant or agreemententered into by the Ruler’. Naturally, if we have entered into anysuch agreement only as recently as 1947 or 1948 and much timehas not elapsed, it is not proper that by an enactment of a generalnature like this we should do something which will set at noughtthe agreements and the covenants which the Government of India has solemnly entered into with those people and on the strengthof which they had consented to allow their States to be integratedwith India. Of course, I agree that probably it is not entirely asocialist pattern or whatever you call it, but as I have been alwayssaying, I hold the opinion that we have to proceed by the processof evolution. I do not mince matters.”

74. Therefore, it can be said with certainty that this rule continuedeven after 1947-48.”

33. The Hindu Succession Bill was introduced in the Rajya Sabhaon 22[nd] December 1954 and clause (iv) thereof reads as under:

“(iv) Any estate which descends to a single heir by a customaryrule of succession or by the terms of any grant or enactment”

However, the Bill was referred to a Joint Committee ofParliament, which in its Report[16] observed as under:

“The Joint Committee is further of opinion that the exception insub clause (iv) should be limited to the impartible estates of Rulersof Indian States succession to which is regulated by specialcovenants or agreements and …”

Section 5(ii), in its present form, was recommended by the JointCommittee in pursuance of its opinion quoted above, which means thatthe Rulers had impartible estates and succession to these was regulatedby special covenants or agreements. Thus, after discussion, the (iv)exception in the Bill was deleted and was not enacted as law. The effectthereof was that the custom of primogeniture and impartible estate inthe case of zamindars or those holding jagirs would not be applicablepost enforcement of the Succession Act with effect from 17[th] June 1956.This is an aspect which is often disregarded and not taken intoconsideration while examining the ratio as expounded by this Court in

N. Padmamma and Others v. S. Ramakrishna Reddy and Others[17]in which it is observed that law of primogeniture is no longer applicablein India and such a provision may be held to be unconstitutional beinghit by Article 14 of the Constitution. N. Padmamma (supra) refers toa judgment of the Supreme Court of South Africa. It may be relevant 16 Gazette of India Extra ordinary dated 28.9.1955 Part II Sec.2, page 365, ’8

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Ato state that by this decision, the matter and issue was referred to alarger Bench, which reference was decided vide judgment dated 23[rd]September 2014 by a three Judge Bench, authored by T.S. Thakur, J.in N. Padmamma and Others v. S. Ramakrishna Reddy andOthers[18]. This judgment in N. Padmamma (supra) does notBspecifically refer to the law of primogeniture as that issue was notraised. Neither was the custom of impartibility of estate considered bythe larger Bench.

34. The Delhi High Court in Tikka Shatrujit Singh & Othersv. Brig Sukhjit Singh & Another[19], has lucidly, in a tabulated form,drawn distinction between the rule of primogeniture and impartibleCestate as applicable to Rulers of princely states and zamindars/jagidarsin the following manner:

S.No. Ruler of an Indian State The holder of a Zamindari1.The Ruler (Sovereign)The holder of a Zamindari, asDwould be the absolutedistinct from the Ruler of anowner of the State and itsIndian State, may hold it as anproperties. None elseimpartible estate. If it iswould have any interest orancestral, he holds it on behalfshare in his property.of the family and althoughEthere would be no right ofpartition, his interest will not bethat of an absolute owner,which a sovereign Ruler had.It would have been familyproperty and of the typeFunderstood by the series ofdecisions in that regard.2.Primogeniture would bePrimogeniture would not,Gpresumed to apply as arepeat not, be Presumed toRule for succession.apply, but will have to beproved as a Custom.

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19 ILR 2011 (1) Del 704

A3.He would have been signatory toHe would not have beena Covenant/agreement ceding hisa party to any of theState first (15.8.1947) to theitems 3 to 5 in the firstDominion of India on threecolumn. This establishessubjects, external affairs,the difference in statuscommunication & defence. Andbetween a former RulerBthereafter – by the Covenant oron the one side and athe Merger Agreement ceding theZamindari on the other.administration of his State to theThis in turn, makes all theUnion or other Government priordifference to theto 26.01.1950.applicable law.C4.After 26[th] January, 1950, hewould be recognised as a Rulerof a former Indian State by the——President of India under Article366 of the Constitution.D5.He would be receiving an annualprivy purse for the amount fixedby the Ministry of States.——6.On his death, successionIf he dies after(properties) would be covered by17.6.1956, succession toEthe first part of the exceptionhis estate shall not be byunder Section 5(ii) and thereforeprimogeniture. It will benot affected by the 1956 Act. Ifas per Section 8 of Hinduhe dies after 17.6.1956, it wouldSuccession Act.make no difference to theFsuccession which will still be byprimogeniture.7.He would be De-recognised as aSince he was neverRuler by the 26[th] Amendment.recognised as a Ruler,there is no question ofG‘Derecognition’.

35. Preamble of the Succession Act states that it is an Act toamend and codify the law relating to intestate succession amongstHindus and as originally enacted did not profess to amend and codifythe law relating to the nature of all the properties held by Hindus, with H

Athe exception of Section 14 of the Succession Act. Section 4 of theSuccession Act provides that the text, rule, interpretation, custom orusage of Hindu law will cease to have effect with respect to any matterfor which provision is made in the Act and further any other law inforce, which is inconsistent with the provisions of the Act, will ceaseto apply. Section 6 of the Succession Act deals with devolution ofBinterest of a Hindu male (and daughter of a coparcener after amendmentvide the Hindu Succession (Amendment) Act 2005) having interest ina Mitakshara coparcenary as distinct from a joint Hindu family. Sections8 and 9 of the Succession Act relating to the general rules of successionin case of males and females, respectively, do not apply to a living personCbut apply on the succession opening on the death. Similarly, Section30 of the Succession Act which deals with testamentary successionand empowers a Hindu to dispose of any property by will in accordancewith the provisions of the Indian Succession Act, 1925, does not ipsofacto apply to a living person and applies in the event of the holder’s

death. Section 5(ii) is an exception to Section 4 and protects applicationDof terms of any covenant or agreement entered into by the Ruler ofany Indian State with the Government of India or the terms of anyenactment passed before commencement of the Succession Act as perwhich the estate would descend to a single heir. The provisions of theSuccession Act, with the possible exception of Section 14 and someEamendments vide the Hindu Succession (Amendment) Act 2005, do notapply unless the succession opens and, therefore, no legal rights of aliving person would get affected. This is clearly stated by S.Ranganathan, J. in Revathinnal Balagopala Varma (supra), whereinwith reference to the effect of the Succession Act, it was observed:F“19. ...Section 4 the Act, in the words of Sundari v. Laxmi(supra), “gives overriding application to the provisions of the Actand lays down that in respect of any of the matters dealt within the Act all existing laws whether in the shape of enactmentor otherwise which are inconsistent with the Act are repealed.Any other law in force immediately before the commencementGof this Act ceases to apply to Hindus insofar as it isinconsistent with the provisions contained in the Act.” Inother words, while the Act may have immediate impact on somematters such as, for e.g., that covered by s.14 of the Act, itsimpact in matters of succession is different. There the Act onlyHprovides that, in the case of any person dying after the commencement of the Act, succession to him will be governednot by customary law but only by the provisions of the Act. Thisis, indeed, clear if we refer to the terms of s.7(3) which getattracted only when a sthanamdar dies after the commencementof the Act. There is, therefore, no reason to hold that theappellant’s entitlement to sue for the partition of the propertiesarose on June 17, 1956.”

36. Legal effect of Section 5(ii) was examined earlier by a threeJudge Bench of this Court in Bhaiya Ramanuj Pratap Deo (supra)wherein after referring to Section 5(ii), it was observed:

“15. … This section protects an estate which descends to a singleheir by the terms of any covenant or agreement entered into orby the terms of any enactment inasmuch as Hindu SuccessionAct is not applicable to such an estate. This section stands asan exception to Section 4 of the Act referred to above.”

37. After referring to the above articles/covenants in PratapSingh (supra), it was observed:

“78. A careful reading of Article XII shows that there is a cleardistinction between the private properties and the State properties.Such private properties must be belonging to the Ruler and mustbe in his use and enjoyment even earlier. Therefore, propertieswhich were recognised even earlier as such private propertiesalone were to be left out and submitted for the recognition assuch. As stated in White Paper (para 157, page 23 supra), thedemarcation and the settlement of the list was carried out forthe purposes of Integration. If this be the correct position of law,the contrary observations of the learned Single Judge are notcorrect.”

38. A Constitution Bench of five judges in Kunwar Shri VirRajendra Singh v. The Union of India and Others[20]had referredto clause (22) of Article 366 of the Constitution to observe that it wasnot a mere definition clause, but a clause that empowered the Presidentto recognise a Ruler “for the time being” which indicates that thePresident has power not only to recognise but also to withdrawrecognition whenever occasion arises. This recognition was for the A

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Apurpose of the right to privy purse under Article 291 of the Constitutionwhich was a charge on and paid out of the Consolidated Fund of India.However, it was held that the privy purse was not a private propertyto which the Ruler succeeded. It was also clarified that the right toprivate property of a Ruler is not embraced within clause (22) of Article366 of the Constitution. Accordingly, recognition of rulership by theBPresident does not recognize any right to private property of the Rulerbecause recognition of rulership is an exercise of the political powerof the President. Thus, recognition of rulership is not an indicia ofproperty, instead it conferred and entitled the Ruler to enjoyment of theprivy purse and personal rights, privileges and dignities of the Ruler.CEqually, the recognition of rulership did not delegitimize the right toproperty and claim of the Ruler to any property, which he would haveto establish in the court of law. Even more important in the presentcontext are the observations of this Court with reference to Article XIVof the Covenant for the United State of Rajasthan, which the erstwhile“sovereign” Ruler had entered into and thereby was guaranteedDsuccession or the right to claim succession with respect to the privateproperty according to the personal law. This Court held that with thecoming into effect of the Constitution, the rulership or the States hadceased to exist as separate entities. Even the Covenants would ceaseto exist after the enactment of the Constitution in so far as they wereEinconsistent with the Constitution. However, the personal law ofsuccession in view of Article XIV of the Covenant was protected andpreserved. The Court had accordingly clarified the legal position on theclaim to succession, by observing:

“8. … The meaning of Article XIV of the Covenant is that theFclaim to succession on the basis of custom and law is preserved.Article XIV of the Covenant by itself is not evidence of anycustom or law. If the petitioner relied on Article XIV, thepetitioner has to establish such right based on custom or lawbefore the appropriate authority”.

GThe ratio of the Constitution Bench in Vir Rajendra Singh(supra) is a binding precedent for it recognizes the personal lawof succession of the Rulers and therefore, the rule/custom ofprimogeniture applicable to impartible estates belonging toerstwhile Rulers of the princely states. This custom/rule was notabrogated with the loss of sovereignty that the Rulers had forgoneHwith the signing of the merger agreement.

39. In Thakore Shri Vinayasinhji (supra), Pratap Singh (supra),Revathinnal Balagopala Varma (supra), Madhav Rao Jivaji RaoScindia (supra), this Court has applied the rule of primogeniture to theestates of such Rulers by giving effect and protection to the personallaw, that is, the rule of primogeniture as provided vide the covenantand merger agreement. Consequently, even after the erstwhile Rulershad surrendered their sovereign rights and their kingdoms/estates hadmerged with the Dominion of India, the succession and all itsconcomitant rights to their erstwhile sovereign property now held asprivate property, would devolve vide the merger agreement and theConstitution as per the customs applicable to the erstwhile Rulers.Relying on the Constitution, and sub-section (ii) to Section 5 of theSuccession Act, this Court has, time and again, held that the law of theland is pervious to the rule of primogeniture. The recent decision ofthis Court in Talat Fatima Hasan Through Her Constituted AttorneySh. Syed Mehdi Husain v. Nawab Syed Murtaza Ali Khan (D) ByLRs. And Others in Civil Appeal No. 1773 of 2002 decided on July31, 2019 pertains to the Muslim Personal Law (Shariat) Application Act,1937 applicable to the State of Rampur. This is clear from paragraph12 of the judgment in Talat Fatima Hasan (supra), which records thatthe only issue to be decided was whether the properties held by theNawab would devolve on his eldest son by applying the rule ofprimogeniture or would be governed by the Muslim Personal Law(Shariat) Application Act, 1937 and devolve on all his legal heirs.

40. It may be pertinent to state here that the succession on deathof Brij Nath Singh had opened on 13[th] October 1968, which is beforeArticle 362 relating to the rights and privileges of the Indian Rulers wasrepealed by the Constitution (26[th] Amendment) Act, 1971. Article 362,before it was repealed, stated that in exercise of the power of Parliamentor of the Legislature of a State to make laws or in the exercise of theexecutive power of the Union or a State, due regard shall be had tothe guarantee or the assurance given under any such covenant oragreement referred to in Article 291 with respect to the personal rights,privileges or dignities of the Ruler of an Indian State.

41. Faced with the aforesaid position, learned counsel for theappellants had submitted that the property being a leasehold Nazul plotlocated in Allahabad and owned by the superior lessor, i.e. State of UttarPradesh, it could not be treated as a sovereign property in the handsof Raghubir Singh and also in the hands of Brij Nath Singh. The AB

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Aproperty should be treated as coparcenary property belonging to thejoint Hindu family and not as impartible property to which the rule ofprimogeniture would be applicable. This contention must be rejected.Brij Nath Singh had taken over as a Ruler of the State of Maihar inthe pre-independence era when the Rulers, though subject to Britishsupremacy, were treated as absolute sovereign Rulers within their ownBterritories. There was no distinction between public and private propertyof the Rulers since the distinction would be counter to the basic attributeof sovereignty. In Pratap Singh (supra), the subject matter includedproperties held by the ruling Chief of Nabha estate in the British territory,

i.e. territory outside the Home State. One such property known asCSterling Castle in Shimla, was purchased in the name of the friend ofthe ruling Chief in view of the restriction put by the Britishers onacquisition, whether direct or indirect, by a sovereign or FeudatoryPrinces of lands in the British territory. After the Britishers had left,the friend of the ruling Chief had relinquished his title and conferred itupon the three sons and widow of the late ruling Chief. The ruling ChiefDhad also acquired a property in Delhi. The contention that these twoproperties were private properties and not State properties was rejectedby this Court.

42. In Draupadi Devi and Others v. Union of India andOthers,[21] the dispute pertained to perpetual leasehold rights of aEproperty in Delhi called Kapurthala House which was purchased byJagatjit Singh, the then Maharaja of Kapurthala by a registered saledeed 19[th] January 1935. The question whether it was personal or State/sovereign property was decided in favour of the Union of India holdingthat it was a State or sovereign property, notwithstanding the allegedFcommand of the Maharaja in 1940 purportedly declaring KapurthalaHouse as his personal and private property. Reference was made toaide-memoire dated 1[st] March 1937 by Lieutenant Colonel Fisherdeclaring the Kapurthala House as a State property. Thus, leaseholdproperties situated outside the princely states have been held to be State or sovereign property. Therefore, the contention of the appellants thatGthe property being leasehold Nazul land situated outside the princelystate was personal property must be rejected in the absence of anyother evidence or material to rebut the presumption that the propertywas a part of the impartible estate belonging to the sovereign Ruler.

On the other hand, inheritance of the property post the death ofRaghubir Singh by the new Ruler including Brij Nath Singh byapplication of the rule of primogeniture to the exclusion of others son(s)would indicate that it was treated as a State or sovereign property.

43. In view of the aforesaid discussion, it has to be held that theproperty was a part of the impartible property i.e., the property thoughancestral was not a part of the coparcenary property, but was a partof the estate of the sovereign Ruler, Brij Nath Singh. Further, Brij NathSingh could transfer the property inter-vivos or make a bequest by wayof a will. The contention that the property was a separate or personalproperty and, therefore, not a part of the impartible property has notbeen established and has not been proved by the appellants by leadingevidence and material to dispel the presumption.

44. For the aforesaid reasons, we do not find any merit in thepresent appeals and the same are dismissed affirming the final findingsof the High Court. There would be no order as to costs.

Divya Pandey

Appeals dismissed.

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