REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 5740-5741 OF 2015

TRIJUGI NARAIN (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS ….. APPELLANT(S)

VERSUS

SANKOO (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS ….. RESPONDENT(S)

J U D G M E N T

SANJIV KHANNA, J.

These  civil  appeals  arise  out  of  common  judgment  and

decree dated 12th September 2008 passed by the High Court of

Judicature  at  Allahabad  in  Second  Appeal  No.  1930  of  1983

{Chandra Nath Kala (D) through LRs. v. Trijugi Narain (D) through

LRs. and Others} and Second Appeal No. 2017 of 1983 {Sankoo

and Another v. Trijugi Narain (D) through LRs and Others}.   

2. The issue raised in the present appeals relates to the nature of the

property, that is, whether the perpetual leasehold rights in plot No.

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

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

(‘the  property’  for  short)  was  coparcenary  joint  Hindu  family

property or being a part of impartible estate of the State of Maihar,

was  clothed  with  the  incidence  of  self-acquired  and  separate

property.

3. In order to decide the controversy, we would record the facts in

brief.

(a) One Bachchu Lonia had acquired the property by means of

perpetual lease deed dated 12th September 1873 executed by

the Government.  After the death of Bachchu Lonia, his son

Ram Bharose by means of a registered sale deed dated 12 th

August  1896  had  transferred  the  perpetual  lease  rights  to

Raghubir Singh, the then Maharaja of the State of Maihar.  

(b) Subsequently,  Brij  Nath  Singh  had  succeeded  to  the

throne/gaddi  of  the  State  of  Maihar.  Brij  Nath  Singh  vide

registered will dated 11th February 1966 had bequeathed the

palace of Maihar and privy purse to Govind Singh, elder son of

his  first  wife  Surendra  Kumari  and  rest  of  the  properties

including the property to his second wife Rani Tej Kumari for

her  son after  making provisions for  her  maintenance during

her lifetime. Brij Nath Singh had died on 13th October 1968.

(c) Notwithstanding this will, Govind Singh, elder son of Brij Nath

Singh  from his  first  wife,  as  peshwa and  karta  of  the  joint

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

Hindu family, had sold the property vide registered sale deed

dated  18th November  1968  to  Trijugi  Narain  Dubey  and

Surendra Nath Prayagwal.  

(d) On 20th November 1968, Chandra Nath Kala and Sankoo had

instituted  Original  Suit  No.  194  of  1968  for  permanent

injunction against Trijugi Narain and Surendra Nath claiming

right  in  the  property  by  adverse  possession  for  last  thirty

years. Later on, they had filed an application for amendment of

the plaint as Vimal Kumar Singh, power of attorney holder of

Rani Tej Kumari, had executed sale deed dated 6 th June 1969

of  the  property  in  favour  of  Chandra  Nath  Kala,  which

application  for  amendment  claiming  title  based on  the  sale

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

allowing the amendment was set aside by the High Court vide

order dated 10th December 1971.  

(e) Chandra  Nath  Kala  had  then  on  7th March  1972  instituted

Original  Suit  No.  64  of  1972  for  declaration  and  injunction

against Trijugi Narain and Surendra Nath, impleading Sankoo

as the third defendant predicating his right on the sale deed

dated 6th June 1969 executed in his favour by Rani Tej Kumari.

Sankoo admitted the claim of Chandra Nath Kala, while Trijugi

Narain and Surendra Nath had filed written statement,  inter

alia, stating that Brij Nath Singh had no right to execute the will Civil Appeal Nos. 5740-5741 of 2015 Page 3 of 40

in favour of  Rani Tej  Kumari  inasmuch as the property was

coparcenary property of the joint Hindu family.  Further, Govind

Singh being the karta of the family, had validly executed the

sale deed dated 18th November 1968 in favour of Trijugi Narain

and Surendra Nath.

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

both dated 25th March 1983, deciding several issues reference to

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

appellants,  albeit it was held that Brij Nath Singh could not have

by a will bequeathed the property that belonged to the joint Hindu

family and, therefore, the sale deed dated 6th June 1969 executed

by Rani Tej  Kumari was void as she had no title.   Further,  the

transfer by Govind Singh as the karta of the joint Hindu family in

favour of Trijugi Narain and Surendra Nath was for benefit of the

estate and absolutely legal. Suit No. 194 of 1968 was dismissed

on the ground that Chandra Nath Kala and Sankoo had failed to

prove acquisition of any right by adverse possession.

5. Civil  Appeal  No.  476  of  1983  filed  against  the  judgment  and

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

District Judge, Allahabad by judgment dated 25th August 1983.  By

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

1983 preferred against the judgment and decree in Suit No. 64 of Civil Appeal Nos. 5740-5741 of 2015 Page 4 of 40

1972 was dismissed,  inter alia,  recording that Maihar State had

ceased  to  exist  in  the  year  1948  and,  therefore,  the  rule  of

primogeniture governing impartible estates had ceased to apply.

Consequently, Govind Singh’s legal right to the property inherited

from his father could not have been taken away by Brij Nath Singh

by  executing  a  will  giving  only  the  palace  and  privy  purse  to

Govind Singh and rest of the properties to Rani Tej Kumari.

6. The High Court, by the impugned common judgment dated 12 th

September 2008, in the two connected appeals, has reversed the

findings of the trial court and the appellate court, inter alia, holding

that the property was a part of the impartible estate governed by

the  rule  of  primogeniture.  Accordingly,  no  member  of  the  joint

Hindu family including Govind Singh had a right in the property by

birth. Brij Nath Singh was fully entitled to bequeath the property by

will,  which  he  had  done  vide  will  dated  11th February  1966 in

favour of Rani Tej Kumari.

7. We  would  like  to  divide  the  question  raised,  though

interconnected, into two parts. First, we are required to examine

the  customary  law  relating  to  impartibility  of  an  estate  and

succession under the rule of primogeniture, and whether it  was

applicable to the property.  The second aspect relates to the legal

effect of the lapse of the sovereign paramountcy with the signing Civil Appeal Nos. 5740-5741 of 2015 Page 5 of 40

of the covenant and merger agreement by Brij Nath Singh with the

Dominion of India and the enactment of the Hindu Succession Act,

1956  (‘Succession  Act’  for  short).  In  other  words,  whether  the

impartible  properties  of  the  former  Ruler  post  the  merger

agreement or the enactment of the Succession Act had ceased to

continue  as  impartible  estate  and  were  converted  into

coparcenary property of the joint Hindu family. While deciding the

question, we would also examine the contention of the appellants

that the perpetual leasehold rights being Nazul land were held as

personal property of the Ruler and were not part of the sovereign

or state properties of Raghubir Singh and Brij Nath Singh.

8. In order to decide the question, we must first notice the difference

between the joint Hindu family and coparcenary. Coparcenary, as

observed in  Surjit  Lal  Chhabda  v.  Commissioner  of  Income

Tax,  Bombay1,  is  a narrower body than the joint  Hindu family.

Under the Mitakshara Hindu Law, any property inherited by a male

Hindu from his father, father’s father or father’s father’s father is

ancestral property. The male descendant who inherits the property

in the above manner did not inherit the property absolutely as a

separate  property,  but  as  coparcenary  property.   Coparcenary

consists of only those persons who acquire by birth an interest in

the coparcenary property. Succession in coparcenary property is 1 (1976) 3 SCC 142 Civil Appeal Nos. 5740-5741 of 2015 Page 6 of 40

by  survivorship.  No  coparcener  can  dispose  of  his  undivided

coparcenary interest by way of gift except with the consent of the

other  coparceners.  There  are  restrictions  on  alienation  of  the

coparcenary  property,  which  would  be  legally  valid  only  when

made by the whole body of coparceners where they are adults, by

manager/Karta,  or  father  subject  to  limits/conditions,  and by  a

sole  surviving  coparcener  in  some  circumstances  (see  Mulla

Hindu Law 22nd Edition, 2016 at page 397,  § 253 –  ‘Who may

alienate coparcenary property’).

9. Outside the limits of coparcenary, there is a fringe of persons, both

male  and  female,  who  constitute  the  undivided  or  joint  family

which consists of lineal descendants from a former ancestor and

includes their wives and unmarried daughters. Joint Hindu family

is,  thus,  a larger  body consisting of  group of  persons who are

united  by  the  tie  of  sapindaship arising  by  birth,  marriage  or

adoption. An individual who is a member of the joint Hindu family

can hold separate or individual property and in addition, if he is a

coparcener, have an interest in the coparcenary property of the

joint Hindu family.  

10. However, with the enforcement of the Succession Act with effect

from  17th June  1956,  any  property  inherited  by  an  heir  vide

intestate succession in the event of death occurring after 17 th June Civil Appeal Nos. 5740-5741 of 2015 Page 7 of 40

1956 is absolute or individual property and not ancestral property.

In the present case, we are not concerned with the concept of

deemed partition of existing coparcenary property on death of a

coparcener,  execution  of  a  will  by  coparcener  of  his  undivided

interest vide Section 30 of the Succession Act or the amendments

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

with effect from 9th September 2005.

11. An estate  even if  inherited  and  ancestral,  partition  of  which  is

prohibited by custom and succession whereto is generally by the

rule of primogeniture is referred to as an ‘impartible estate’.  An

impartible estate is essentially a creature of custom, though could

also owe its origin to the term of a grant,  a statute or a family

settlement.  By virtue of the rule of primogeniture, the eldest or the

first  son  succeeds  to  the  property  of  the  last  holder  to  the

exclusion of his younger brothers.  Succession can also be under

the  rule  of  lineal  male  primogeniture  which  means  that  the

descendant would be a continual descendant of the eldest male

member  of  the  eldest  branch.   The  distinction  between  the

impartible estate, to which the rule of primogeniture applies, and

coparcenary property has been explained in Shiba Prasad Singh

v. Rani Prayag Kumari Debi and Others2 in the following words:

2 AIR 1932 PC 216 Civil Appeal Nos. 5740-5741 of 2015 Page 8 of 40

“Impartibility is essentially a creature of custom.  In the case of ordinary joint family property, the members of the family have: (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity;  (3)  the  right  of  maintenance;  and  (4)  the right of survivorship.  The first of these rights cannot exist  in  the  case  of  an  impartible  estate,  though ancestral,  from  the  very  nature  of  the  estate.   The second is incompatible with the custom of impartibility as laid down in Sartaj Kuari’s case and Rama Krishnan vs. Venkata Kumara, and so also the third as held in Gangadhara vs. Rajah of Pittapur.  To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property.   But  the  right  of  survivorship  is  not inconsistent with the custom of impartibility.  This right therefore  still  remains,  and  this  is  what  was  held  in Baijnath’s case.  To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such  property.   Though  the  other  rights  which  a coparcener acquires by birth in joint family property no longer exist, the birthright of the senior member to take by survivorship still remains.  Nor is this right a mere spes  successionis  similar  to  that  of  a  reversioner succeeding  on  the  death  of  a  Hindu  widow  to  her husband’s estate.”

12. The aforesaid passage in Shiba Prasad Singh (supra) has been

quoted  with  approval  in  a  number  of  judgments  of  this  Court,

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

Shri Natwarsinhji and Others3, wherein it has been observed as

under:

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

3 (1988) Supp. SCC 133 Civil Appeal Nos. 5740-5741 of 2015 Page 9 of 40

13. It is, therefore, well established that an impartible estate is clothed

with  the  incidents  of  self-acquired  and  separate  property.

Impartible estate even if inherited and ancestral, is not held by the

coparcenary  as  a  part  of  the  coparcenary  property,  as  the

coparceners or members of the joint Hindu family do not have the

right to partition or right to restrain alienation. Though the right to

survivorship  is  not  inconsistent  with  the  custom  of  impartible

estate,  albeit  it  is different  from the ordinary rule of succession

under the Mitakshara Hindu law where all sons of the father are

entitled  to equal  share in  his  estate,  for  the law of  succession

when the rule of primogeniture applies, is that the first-born son

succeeds to the entire estate to the exclusion of the other sons.

14. As observed above, impartibility of an estate and primogeniture

can  have  its  origin  in  four  forms,  including  custom.  There  are

judicial  precedents acknowledging and accepting the custom of

impartible estate and that the rule of primogeniture was a general

rule of succession in all the princely states. We must take judicial

notice of this custom as applicable to princely states vide Section

48 of the Evidence Act,1872. Lieutenant Colonel James Tod, in his

work  titled  ‘Annals  and  Antiquities  of  Rajasthan’4,  at  page 307

states:

4 Oxford University Press, 1920. Reprinted in 1978 by M.N. Publishers, New Delhi Civil Appeal Nos. 5740-5741 of 2015 Page 10 of 40

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

G.K. Mitter, J. in his judgment in  Madhav Rao Jivaji Rao

Scindia v. Union of India and Another5 had observed:

“It would appear that invariably the rule of lineal male primogeniture coupled with the custom of adopting a son  prevailed  in  the  case  of  Hindu  Rulers  who composed of the bulk of the body.”

In  Baboo  Gunesh  Dutt  Singh  v.  Maharaja  Moheshur

Singh6, it was stated as follows:

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

15. In Pratap  Singh  v. Sarojini  Devi  and  Others7 reference  was

made to the decision in  Baboo Ganesh Dutt Singh (supra) and

Mitter, J.’s opinion in Madhav Rao Jivaji Rao Scindia (supra) to

hold that:

5 (1971) 1 SCC 85 6 (1854-7) 6 MIA 164: 1 Sar PCJ 521 7 (1994) Supp 1 SCC 734 Civil Appeal Nos. 5740-5741 of 2015 Page 11 of 40

“65.  Though impartibility and primogeniture, in relation to zamindari estates or other impartible estates are to be established by custom, in the case of a sovereign Ruler, they are presumed to exist.”

This Court in Pratap Singh (supra) has reiterated the above

principles  and  also  observed  that  impartible  estate  and  the

application  of  the  rule  of  primogeniture  in  the  case  of  the

sovereign Ruler must be presumed to exist, whereas in the case

of  zamindari  estate  or  another  impartible  estate,  the  rule  of

primogeniture must be established by way of custom.

16. Any property belonging to the Ruler as a sovereign, which would

devolve on succession by survivorship by application of the rule of

the primogeniture, would not bear an incidence of a coparcenary

property. The  property  belonged  to  one  person,  that  is,  the

sovereign  Ruler  as  the  very  concept  of  sovereignty  implies

absolute authority, power and ownership that cannot be subjected

to  legal  action  of  partition  or  injunction  by  another  person.

Consequently,  estates/properties  of  the  sovereign  Ruler  were

impartible  even  though  the  property  was  ancestral.  The  male

members who had the right of survivorship, could not claim the

right to partition or the right to restrain alienation by the sovereign

Ruler  as  they  had  no  enforceable  right  that  could  be  legally

remedied.  In short, the right or interest of sons or other members

of  the  coparcenary  was  inconsistent  with  sovereignty  as  a Civil Appeal Nos. 5740-5741 of 2015 Page 12 of 40

sovereign Ruler could not be subjected to the municipal law and

the municipal courts.  In an unreported decision in Civil Appeal No.

226 of 1965 titled Mahant Hardial Singh v. Ajmer Singh decided

on 20th November 1968 with regard to the powers of the Maharaja

of Patiala, this Court had observed:

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

Thus, as per the custom relating to impartible estates and

the rule of  primogeniture,  the Raja or  Ruler  of  a princely state

would not hold the estate as the karta or coparcener, but as the

absolute owner and the estate would be impartible.  The son(s)

would not acquire any interest in the impartible estate by birth nor

could they seek partition or restrain alienation. On the death of the

Ruler,  the  succession  to  the  rulership,  as  also  the  impartible

estate,  was  not  under  the  Mitakshara  law  of  survivorship  but

governed  by  the  rule  of  primogeniture.   There  was,  however, Civil Appeal Nos. 5740-5741 of 2015 Page 13 of 40

moral  liability  for  providing  maintenance  to  others,  be  it  the

younger brothers or family members, which later on, by way of

custom, virtually became an obligation.

17. The Privy  Council  in  Venkata  Surya Mahipati  Rama Krishna

Rao Bahadur  v.  Court of Wards and Others8 after referring to

the earlier case law had held that a holder of an impartible estate

can alienate the estate by way of a gift  inter-vivos, or even by a

will, though the family is undivided; the only limitation on his power

would  flow from the family  custom to the contrary,  or  from the

condition of  the tenure which has the same effect.   The above

dictum has been approved by this Court in  Sri Rajah Velugoti

Kumara  Krishna  Yachendra  Varu  and  Others  v.  Sri  Rajah

Velugoti  Sarvagna  Kumara  Krishna  Yachendra  Varu  and

Others9;  Bhaiya  Ramanuj  Pratap  Deo  v.  Lalu  Maheshanuj

Pratap Deo and Others10; Pratap Singh (supra) and other cases.

18. In  Advocate  General  of  Bombay v.  Amerchund11,  Lord

Tenterden had during the course of discussion asked:

“What is the distinction between the public and private property  of  an  absolute  sovereign?   You  mean  by public property, generally speaking, the property of the State, but in the property of an absolute sovereign, who

8 (1899) LR 26 Ind App 83 9 (1969) 3 SCC 281 10 (1981) 4 SCC 613 11 12 ER 340, 345: (1830) 1 Knapp 316,329-30 Civil Appeal Nos. 5740-5741 of 2015 Page 14 of 40

may dispose of everything at any time, and in any way he pleases, is there any distinction?” [...]

Lord Tenterden went on to observe in his judgement:

“another point made, which applies itself only to a part of the information, is, that the property was not proved to have been the public property of the Peishwa.  Upon that point I  have already intimated my opinion, and I have the concurrence of the other Lords of the Council with  me  in  its,  that  when  you  are  speaking  of  the property of an absolute sovereign there is no pretence for drawing a distinction, the whole of it belongs to him as sovereign, and he may dispose of it for his public or private  purposes  in  whatever  manner  he  may  think proper.”

19. The  legal  incidents  of  sovereign  and  State  property  were

explained  by  the  Gujarat  High  Court  in  D.S.  Meramwala

Bhayawala  v.  Bai Shri  Amarba Jethsurbhai12 in  the following

words:

“5. […] As a sovereign ruler he would be the full and complete owner of  the Estate entitled to do what  he likes with the Estate.  During his lifetime no one else can claim an interest in the Estate.  Such an interest would be inconsistent  with his sovereignty.   To grant that the sons acquire an interest by birth or adoption in the Estate which is a consequence arising under the municipal law would be to make the Chief who is the sovereign Ruler of the Estate subject to the municipal law.   Besides,  if  the sons acquire  an  interest  in  the Estate by birth or adoption, they would be entitled to claim  the  rights  enumerated  above  but  those  rights cannot  exist  in  a  sovereign  Estate.   None  of  these rights can be enforced against the Chief by a remedy in the Municipal Courts.  The Chief being the sovereign Ruler, there can be no legal sanction for enforcement of these rights.  The remedy for enforcement of these rights would not be a remedy at law but resort would

12 (1968) 9 GLR 609 Civil Appeal Nos. 5740-5741 of 2015 Page 15 of 40

have  to  be  taken  to  force,  for  the  Chief  as  the sovereign Ruler would not be subject to municipal law and  his  actions  would  not  be  controlled  by  the municipal Courts.  Now it is impossible to conceive of a legal right which has no legal remedy.  If a claim is not legally enforceable, it would not constitute a legal right and,  therefore,  by  the  very  nature  of  a  sovereign Estate, the sons, cannot have these rights and if these rights  cannot  exist  in  the  sons,  it  must  follow  as  a necessary  corollary  that  the  sons  do  not  acquire  an interest in the Estate by birth or adoption.”

The  legal  position  as  explained  in  paragraphs  14  to  16

(supra) was highlighted in  D.S. Meramwala (supra) stating that

there  was  not  even  a  single  instance  where  the  son(s)  were

recognized to have an interest  in the estate for  partitioning the

estate during the lifetime of the Chief. It is, therefore, clear that

when  the  rule  of  primogeniture  is  applicable,  the  principles  of

ancestral coparcenary property would not apply. In the case of an

impartible estate, the son(s) would not get any interest by birth, as

a son of Hindu has interest by birth in coparcenary property.

20. Opinion  of  Lord  Tenterden  was  one  of  the  cases  cited  with

approval  in  Revathinnal  Balagopala  Varma  v.  Shri

Padmanabha Dasa Bala Rama Varma (since deceased) and

Others13. This aspect was further elucidated by N.D. Ojha, J. in

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

13 (1993) Supp 1 SCC 233 Civil Appeal Nos. 5740-5741 of 2015 Page 16 of 40

21. With passage of the Indian Independence Act, 1947, the British

bid  farewell  to  the  Indian  empire  and  transferred  the  political

power. India was also partitioned. Question would arise whether

the  legal  position  had  changed  post  15th August  1947  on

independence in light of the fact that the Rulers of the princely

states  had  joined  the  Indian  Union  after  lapse  of  the  British

paramountcy. Pre-partition India comprised of about 4095852 sq.

kms. The British Crown had direct control over 2241505 sq. kms.,

and the princely or native states, about 565 in number, had rights

on  1854346  sq.  kms.  Apart  from  the  transfer  of  power  and

administration, integration of the princely states in the independent

Indian  Union  was  a  complex  and  difficult  task.  In  July  1947,

several  Rulers  of  princely  states  and  state  ministers  had  met

Sardar  Vallabhbhai  Patel,  Home  Minister  in  the  interim

Government, to discuss and to determine their future status.  Mr.

V.P. Menon in his work ‘Integration of the Indian States’14 states

that the princely states to participate in the Constituent Assembly,

were required to give up their powers and accede to the Indian

Union  on  three  subjects,  namely,  defence,  foreign  affairs  and

communications,  which  they  agreed  after  a  series  of  informal

meetings and discussions with the Rulers of the princely states

and their  advisors  who had realised the public  sentiments  and

14 Orient Longman 1985, 107.  Civil Appeal Nos. 5740-5741 of 2015 Page 17 of 40

impact of  transfer  of  political  power.  Accordingly,  instruments of

accession were signed under which external affairs, defence and

communications  were  ceded to  the  Dominion  by  the  Rulers  of

most  of  the  princely  states  with  the  exception  of  Junagarh,

Hyderabad and Kashmir.   

22. The next  step was the integration of  the princely states,  which

happened  in  1948-49,  with  the  Rulers/Rajas  signing  merger

agreements  and  covenants.  Thereupon,  the  princely  states

merged in the States or into the Unions in the administered areas,

thereby ensuring transfer  of  absolute power from the individual

Rulers  to  the  masses  i.e.  the  citizens  of  free  India.  Merger

agreements ensured integration of the former princely states into

the Union of India. In return of surrender of absolute power and

sovereignty, the Rulers were assured of fair allocation of assets,

properties and fixed personal income by way of a privy purse. The

merger agreements had also granted privileges and concessions

to the former princes who had enjoyed the status of a Ruler.  At

this stage, it became necessary to demarcate personal properties

of the Rulers and the State properties. The former remained the

property of the erstwhile princes while the latter became property

of the State.

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

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

process,  are  enunciated  by  Mr.  V.P.  Menon in  his  work  in  the

following manner:

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

24. The principles followed by the Government  of  India  are  clearly

reflected in  the White Paper  on the Indian States,  the relevant

portion of which reads:

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

25. There is no doubt that erstwhile Rulers ceased to be sovereign

post  the  merger  agreements.   However,  they  were  entitled  to

benefits in terms of  concessions which were granted under the

merger agreements which had postulated as under:

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

“ xx xx xx   

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

Article IV: (1) The Ruler of each Covenanting State shall be entitled to  receive annually  from the Government  of India for his privy purse the amount specified against that Covenanting State in the Schedule to this Agreement.  

(2) The said amount is intended to cover all the expenses of the Ruler and his family including expenses on account of  personal  staff,  maintenance  of  his  residences, marriages and other ceremonies, etc., and shall neither be increased nor reduced for any reason whatsoever.

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

Article V: The Ruler of each Covenanting State, as also the  members  of  his  family  shall  be  entitled  to  all  the personal privileges, dignities and titles enjoyed by them, whether  within  or  outside  the  territories  of  that  State, immediately before the 15th day of August 1947.

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

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

(2) If any dispute arises as to whether any item of property is the private property  of  the Ruler  or  State property,  it shall be referred to a judicial officer to be nominated by

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

the Government of India, and the decision of that officer shall be final and binding on all parties concerned.  

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

                                xx     xx     xx                                      ”

26. The Constitution of India as enacted, vide clause 2 in Article 363,

had  defined  the  expression  ‘Indian  State’  as  any  territory

recognised before the commencement of the Constitution by his

Majesty or the Government of the Dominion of India as being a

State  and  the  ‘Ruler’  as  were  recognised  before  such

commencement by his Majesty or the Government of Dominion of

India as the Ruler of Indian State. The ‘ruler’ as defined meant the

Prince, Chief or any other person by whom any such covenant or

agreement  as  is  referred  to  in  clause  (1)  of  Article  291  was

entered into and who for the time being was recognised by the

President as Ruler of the princely state.  

27. It is, therefore, clear that upon signing the merger agreement, the

Rulers  had  lost  their  sovereignty  and,  in  a  way,  had  become

ordinary  citizens  with  certain  special  rights  and  privileges  as

mentioned in the Constitution.  

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

28. The  legal  effect  of  the  merger  agreements  and  whether  the

customary rule of impartible estate would cease to be applicable

by applying the doctrine of ‘cessante ratione legis, cessat ipsa lex’

has been examined in several decisions. The argument against

continuation of the customary rule is predicated on the plea that

primogeniture  and  impartibility,  though  not  attributes  of

sovereignty,  were customs which existed because the rulership

existed, and therefore when there was loss of rulership, there was

no need for the custom to exist. This contention was examined in

Revathinnal Balagopala Varma (supra) and squarely rejected by

S. Ranganathan, J., in the following words:

“5.  Before discussing the principal  contentions urged on behalf of the appellant, it may be convenient to clear up a ground put up on behalf of the first respondent purporting to be a complete answer to the claim of the appellant ... It settled the issue as between the Ruler and  the  Government  of  India  and  allowed  the  said properties  to  be  retained by the Ruler  without  being surrendered to  the  Government  of  India.   It  did  not, however, affect or prejudice the rights, if any, of third parties in the properties so declared.  It created no title in the Ruler to any properties other or higher than what belonged  to  him  immediately  before  the  appointed day ... It  did not affect in any way the nature of any property in his hands or the claims, if any, which others might have had against the Ruler qua those properties. These  propositions  are  clear  form  the  decisions  in Visweswar  Rao  v.  State  of  M.P.  (1952  SCR  1020), Dalmia Dadri Cement Co. Ltd. v. CIT (1959 SCR 729) and  Rajendra  Singh  v.  Union  of  India  (1970-2  SCR 631) as well as the clarification contained in para 4 of the  Government  of  India’s  memorandum  dated 18.05.51 (Ex. A-4).”

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

29. N.D. Ojha, J. in the same judgment referred to and approved the

judgment  of the Gujarat High Court in  D.S. Meramwala  (supra)

wherein it has been held as under:  

“57.  ...  Now  it  was  not  disputed  on  behalf  of Meramwala that if  prior to merger the Estate did not partake  of  the  character  of  ancestral  coparcenary property, the properties left with Bhayawala under the merger agreement would not be ancestral coparcenary properties : if Meramvala did not have any interest in the Estate prior to merger, he would have no interest in the properties which remained with Bhayawala under the  merger  agreement.   It  was  not  the  case  of Meravala and it could not be the case since the merger agreement would be an act of State that as a result of the  merger  agreement  any  interest  was  acquired  by him in the properties held by Bhayawala.  Bhayawala was, therefore, the full owner of the properties held by him and  was  competent  to  dispose  of  the  same by will. ...  ... The argument of Mr. I.M. Nanavati however was that the effect of applicability of the rule of primogeniture by the  paramount  power  was  that  the  rights  of coparceners  under  the  ordinary  Hindu  law  were eclipsed:  these  rights  were  not  destroyed  but  they remained dormant and on the lapse of  paramountcy, the shadow of  the eclipse being removed,  the rights sprang  into  full  force  and  effect.   This  argument  is wholly unsustainable on principle...”

The  ratio  was  accepted  by  S.  Ranganathan,  J.  (see

paragraph 11), wherein he observed that if  the issue dealt  with

had been an  ordinary  impartible  estate  the  matter  would  have

been different but, in case of a sovereign state whose Chief was

earlier  a  sovereign  Ruler,  the  acquisition  by  a  sovereign  Ruler

cannot be claimed to be joint family property.   

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

30. In  Revathinnal  Balagopala  Varma (supra),  N.D.  Ojha,  J.  had

thereafter proceeded to observe:

“63. In this connection it has to be kept in mind that the mode  of  succession  of  a  sovereign  ruler  and  the powers  of  such  a  ruler  are  two  different  concepts. Mode  of  succession  regulates  the  process  whereby one sovereign ruler is succeeded by the other. It may inter  alia  be  governed  by  the  rule  of  general primogeniture  or  lineal  primogeniture  or  any  other established  rule  governing  succession.  This  process ends  with  one  sovereign  succeeding  another. Thereafter  what  powers,  privileges  and  prerogatives are  to  be  exercised  by  the  sovereign  is  a  question which is not relatable to the process of succession but relates to the legal incidents of sovereignty.

64. If someone asserts that to a particular property held by a sovereign the legal incidents of sovereignty do not apply, it will have to be pleaded and established by him that the said property was held by the sovereign not as sovereign  but  in  some other  capacity.  In  the  instant case  apart  from asserting  that  the  properties  in  suit belonged  to  a  joint  family  and  respondent  1  even though a sovereign ruler, held them as the head of the family  to  which  the  property  belonged,  the  appellant has  neither  specifically  pleaded  nor  produced  any convincing evidence in support of such an assertion. It has been urged on behalf of the appellant that only the eldest  male offspring  of  the Attingal  Ranis  could,  by custom, be the ruler and all the heirs of the Ranis who constituted  joint  Hindu  family  would  be  entitled  to  a share in the properties of the Ranis and the properties in  suit  were  held  by  respondent  1  as  head  of  the tarwad even though impartible in his hands. This plea has been repelled by the trial court as well as by the High Court and nothing convincing has been brought to our  notice  on  the  basis  of  which  the  presumption canvassed on behalf of the appellant could be drawn and the findings of the courts below reversed. We are dealing with an appeal and as has been pointed out by this Court in  Thakur Sukhpal Singh v.  Thakur Kalyan

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

Singh it  is the duty of the appellant to show that the judgment under appeal is erroneous.”

31. Even earlier,  in  Mirza Raja Pushpavathi  Vijayaram Gajapathi

Raj Manne Sultan Bahadur etc.  v.  Sri Pushavathi Visweswar

Gajapathiraj  Rajkumar  of  Vizianagaram  and  Others15,  this

Court had observed that custom outlives condition of things that

gave birth to it, with the following observations:

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

In the matter  of  proof  of  family  custom, it  is  not  the technicalities  of  the  law  that  would  prevail  but  the evidence of conduct which unambiguously proves that the parties wanted to continue the old custom.”

32. Any doubt or debate on whether the custom of impartibility and the

rule  of  primogeniture  had  continued  post  the  covenants  and

15 AIR 1964 SC 118 Civil Appeal Nos. 5740-5741 of 2015 Page 25 of 40

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

wherein  specific  reference  was  made  to  Section  5(ii)  of  the

Succession Act and the debates when the Bill was introduced in

the Rajya Sabha.  The relevant portion of this decision reads as

under:

“71.  Section  5  of  the  Hindu  Succession  Act,  1956 (Central Act 30 of 1956) states as follows:

“This Act shall not apply to —

(i) * * *

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

(iii) * * *”

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

“The exception is limited to the impartible estates of Rulers of Indian States succession to which is regulated  by  special  covenants  or  agreements and to estates, succession to which is regulated by any previous legislation, and the Estate and Palace Funds mentioned in sub-section (iii).”

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

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

‘any estate which descends to a single heir by the terms of any covenant or agreement entered

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

into  by  the  Ruler  of  any  Indian  State  with  the Government  of  India  or  by  the  terms  of  any enactment passed before the commencement of this Act;’

This  clause  has  been  put  in  because,  as  we know,  it  is  only  after  the  attainment  of independence  that  on  a  large  scale  there  has been integration of States, and there are certain agreements  and  covenants  which  have  been entered into between the Government and those Rulers of States, and some arrangements have been  made  only  very  recently  with  respect  to their line of succession. It is a special thing. What it  says is: ‘any covenant or agreement entered into by the Ruler’. Naturally, if we have entered into  any  such  agreement  only  as  recently  as 1947 or 1948 and much time has not elapsed, it is not proper that by an enactment of a general nature like this  we should do something which will  set  at  nought  the  agreements  and  the covenants  which  the  Government  of  India  has solemnly entered into with those people and on the  strength  of  which  they  had  consented  to allow their States to be integrated with India. Of course, I agree that probably it is not entirely a socialist pattern or whatever you call it, but as I have been always saying, I hold the opinion that we have to proceed by the process of evolution. I do not mince matters.”

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

33. The Hindu Succession Bill was introduced in the Rajya Sabha on

22nd December 1954 and clause (iv) thereof reads as under:

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

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

However,  the  Bill  was  referred  to  a  Joint  Committee  of

Parliament, which in its Report16 observed as under:

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

Section 5(ii), in its present form, was recommended by the

Joint Committee in pursuance of its opinion quoted above, which

means that the Rulers had impartible estates and succession to

these was regulated by special covenants or agreements. Thus,

after discussion, the (iv) exception in the Bill was deleted and was

not  enacted as law.  The effect  thereof  was that  the custom of

primogeniture and impartible estate in the case of zamindars or

those holding jagirs would not be applicable post enforcement of

the Succession Act with effect from 17th June 1956.  This is an

aspect which is often disregarded and not taken into consideration

while  examining  the  ratio  as  expounded  by  this  Court  in  N.

Padmamma  and  Others  v.  S.  Ramakrishna  Reddy  and

Others17 in which it is observed that law of primogeniture is no

longer applicable in India and such a provision may be held to be

unconstitutional  being  hit  by  Article  14  of  the  Constitution.  N.

Padmamma (supra) refers to a judgment of the Supreme Court of

16 Gazette of India Extraordinary dated 28.9.1955 Part II Sec.2, page 365, ’8 17 (2008) 15 SCC 517 Civil Appeal Nos. 5740-5741 of 2015 Page 28 of 40

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

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

was decided vide judgment dated 23rd September 2014 by a three

Judge Bench, authored by T.S. Thakur, J. in N. Padmamma and

Others v. S. Ramakrishna Reddy and Others18. This judgment in

N. Padmamma  (supra) does not specifically refer to the law of

primogeniture  as  that  issue  was  not  raised.  Neither  was  the

custom of impartibility of estate considered by the larger Bench.   

34. The Delhi High Court in Tikka Shatrujit Singh & Others v. Brig

Sukhjit Singh & Another19, has lucidly, in a tabulated form, drawn

distinction between the rule of primogeniture and impartible estate

as applicable to Rulers of princely states and zamindars/jagidars

in the following manner:

S.No. Ruler of an Indian State The holder of a Zamindari 1. The  Ruler  (Sovereign)  would

be  the  absolute  owner  of  the State and its properties.  None else would have any interest or share in his property.

The  holder  of  a  Zamindari,  as distinct from the Ruler of an Indian State, may hold it as an impartible estate.  If it is ancestral, he holds it on  behalf  of  the  family  and although there would be no right of partition,  his  interest  will  not  be that of an absolute owner, which a sovereign  Ruler  had.   It  would have been family property and of the type understood by the series of decisions in that regard.

2. Primogeniture  would  be presumed to  apply  as  a  Rule for succession.

Primogeniture  would  not,  repeat not, be Presumed to apply, but will have to be proved as a Custom.

18 (2015) 1 SCC 417 19 ILR 2011 (1) Del 704 Civil Appeal Nos. 5740-5741 of 2015 Page 29 of 40

3. He would have been signatory to  a  Covenant/agreement ceding  his  State  first (15.8.1947) to the Dominion of India  on  three  subjects, external affairs, communication & defence.  And thereafter – by the  Covenant  or  the  Merger Agreement  ceding  the administration  of  his  State  to the Union or other Government prior to 26.01.1950.                  

He would not have been a party to any of the items 3 to 5 in the first column.   This  establishes  the difference  in  status  between  a former Ruler on the one side and a Zamindari on the other.  This in turn,  makes  all  the  difference  to the applicable law.

4. After  26th January,  1950,  he would  be  recognised  as  a Ruler of a former Indian State by the President of India under Article 366 of the Constitution.

----

5. He  would  be  receiving  an annual  privy  purse  for  the amount fixed by the Ministry of States.

----

6. On  his  death,  succession (properties)  would be covered by  the  first  part  of  the exception  under  Section  5(ii) and  therefore  not  affected  by the 1956 Act.  If  he dies after 17.6.1956,  it  would  make  no difference  to  the  succession which  will  still  be  by primogeniture.

If  he  dies  after  17.6.1956, succession to his estate shall not be by primogeniture.  It will be as per Section 8 of Hindu Succession Act.

7. He would be De-recognised as a  Ruler  by  the  26th

Amendment.

Since he was never recognised as a  Ruler,  there  is  no  question  of ‘Derecognition’.

35. Preamble of the Succession Act states that it is an Act to amend

and  codify  the  law  relating  to  intestate  succession  amongst

Hindus and as originally enacted did not profess to amend and

codify the law relating to the nature of all the properties held by

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

Hindus, with the exception of Section 14 of the Succession Act.

Section  4  of  the  Succession  Act  provides  that  the  text,  rule,

interpretation, custom or usage of Hindu law will  cease to have

effect with respect to any matter for which provision is made in the

Act and further any other law in force, which is inconsistent with

the provisions of the Act,  will  cease to apply.  Section 6 of the

Succession Act deals with devolution of interest of a Hindu male

(and daughter of a coparcener after amendment vide the Hindu

Succession  (Amendment)  Act  2005)  having  interest  in  a

Mitakshara  coparcenary  as  distinct  from  a  joint  Hindu  family.

Sections 8 and 9 of  the Succession Act  relating to the general

rules of succession in case of males and females, respectively, do

not apply to a living person but apply on the succession opening

on the death.  Similarly, Section 30 of the Succession Act which

deals  with  testamentary  succession  and  empowers  a  Hindu  to

dispose of any property by will in accordance with the provisions

of the Indian Succession Act, 1925, does not ipso facto apply to a

living  person  and  applies  in  the  event  of  the  holder’s  death.

Section 5(ii) is an exception to Section 4 and protects application

of terms of any covenant or agreement entered into by the Ruler

of any Indian State with the Government of India or the terms of

any enactment passed before commencement of the Succession

Act as per which the estate would descend to a single heir.   The Civil Appeal Nos. 5740-5741 of 2015 Page 31 of 40

provisions of the Succession Act, with the possible exception of

Section 14  and some amendments  vide the  Hindu Succession

(Amendment) Act 2005, do not apply unless the succession opens

and,  therefore,  no  legal  rights  of  a  living  person  would  get

affected.   This  is  clearly  stated  by  S.  Ranganathan,  J.  in

Revathinnal Balagopala Varma  (supra), wherein with reference

to the effect of the Succession Act, it was observed:

“19.  ...Section  4 the  Act,  in  the  words  of  Sundari v. Laxmi  (supra),  “gives  overriding  application  to  the provisions of the Act and lays down that  in respect of any of the matters dealt with in the Act all existing laws whether in the shape of enactment or otherwise which are inconsistent with the Act are repealed. Any other law in force immediately before the commencement of this  Act  ceases  to  apply  to  Hindus  insofar  as  it  is inconsistent with the provisions contained in the Act.” In  other  words,  while  the  Act  may  have  immediate impact on some matters such as, for e.g., that covered by s.14 of the Act, its impact in matters of succession is different. There the Act only provides that, in the case of  any person dying after  the commencement  of  the Act,  succession  to  him  will  be  governed  not  by customary law but only by the provisions of  the Act. This is, indeed, clear if we refer to the terms of s.7(3) which get attracted only when a sthanamdar dies after the commencement of the Act. There is, therefore, no reason to hold that the appellant’s entitlement to sue for  the  partition  of  the  properties  arose  on  June 17, 1956.”

36. Legal effect of Section 5(ii) was examined earlier by a three Judge

Bench  of  this  Court  in  Bhaiya  Ramanuj  Pratap  Deo (supra)

wherein after referring to Section 5(ii), it was observed:

“15. … This section protects an estate which descends to  a  single  heir  by  the  terms  of  any  covenant  or

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

agreement  entered  into  or  by  the  terms  of  any enactment  inasmuch as Hindu Succession Act is not applicable to such an estate. This section stands as an exception to Section 4 of the Act referred to above.”

37. After  referring to the above articles/covenants in  Pratap Singh

(supra), it was observed:

“78.  A careful reading of Article XII shows that there is a clear distinction between the private properties and the State properties. Such private properties must be belonging  to  the  Ruler  and  must  be  in  his  use  and enjoyment  even  earlier.  Therefore,  properties  which were  recognised  even  earlier  as  such  private properties alone were to be left out and submitted for the recognition as such. As stated in White Paper (para 157,  page  23  supra),  the  demarcation  and  the settlement of the list was carried out for the purposes of Integration. If this be the correct position of law, the contrary observations of the learned Single Judge are not correct.”

38. A Constitution Bench of five judges in Kunwar Shri Vir Rajendra

Singh v. The Union of India and Others20 had referred to clause

(22) of Article 366 of the Constitution to observe that it was not a

mere definition clause, but a clause that empowered the President

to recognise a Ruler “for the time being” which indicates that the

President has power not only to recognise but also to withdraw

recognition  whenever  occasion arises.  This  recognition  was for

the purpose of the right to privy purse under Article 291 of the

Constitution  which  was  a  charge  on  and  paid  out  of  the

Consolidated Fund of India.  However, it was held that the privy

20 (1969) 3 SCC 150 Civil Appeal Nos. 5740-5741 of 2015 Page 33 of 40

purse was not a private property to which the Ruler succeeded.  It

was also clarified that the right to private property of a Ruler is not

embraced within  clause  (22)  of  Article  366  of  the  Constitution.

Accordingly,  recognition  of  rulership  by  the  President  does  not

recognize  any  right  to  private  property  of  the  Ruler  because

recognition of rulership is an exercise of the political power of the

President.  Thus,  recognition  of  rulership  is  not  an  indicia  of

property, instead it conferred and entitled the Ruler to enjoyment

of the privy purse and personal rights, privileges and dignities of

the Ruler. Equally, the recognition of rulership did not delegitimize

the right to property and claim of the Ruler to any property, which

he  would  have  to  establish  in  the  court  of  law.  Even  more

important in the present context are the observations of this Court

with reference to Article XIV of the Covenant for the United State

of Rajasthan, which the erstwhile “sovereign” Ruler had entered

into and thereby was guaranteed succession or the right to claim

succession with respect to the private property according to the

personal law. This Court held that with the coming into effect of

the Constitution, the rulership or the States had ceased to exist as

separate entities.  Even the Covenants would cease to exist after

the  enactment  of  the  Constitution  in  so  far  as  they  were

inconsistent with the Constitution.  However, the personal law of

succession in view of Article XIV of the Covenant was protected Civil Appeal Nos. 5740-5741 of 2015 Page 34 of 40

and  preserved.  The  Court  had  accordingly  clarified  the  legal

position on the claim to succession, by observing:

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

The ratio of the Constitution Bench in Vir Rajendra Singh (supra)

is  a  binding  precedent  for  it  recognizes  the  personal  law  of

succession  of  the  Rulers  and  therefore,  the  rule/custom  of

primogeniture  applicable  to  impartible  estates  belonging  to

erstwhile Rulers of the princely states. This custom/rule was not

abrogated with the loss of sovereignty that the Rulers had forgone

with the signing of the merger agreement.   

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

Revathinnal  Balagopala  Varma  (supra),  Madhav  Rao  Jivaji

Rao  Scindia  (supra), this  Court  has  applied  the  rule  of

primogeniture to the estates of such Rulers by giving effect and

protection to the personal law, that is, the rule of primogeniture as

provided vide the covenant and merger agreement. Consequently,

even after the erstwhile Rulers had surrendered their sovereign

rights and their kingdoms/estates had merged with the Dominion

of  India,  the  succession  and  all  its  concomitant  rights  to  their

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

erstwhile sovereign property now held as private property, would

devolve vide the merger agreement and the Constitution as per

the customs applicable to the erstwhile Rulers.  Relying on the

Constitution, and sub-section (ii) to Section 5 of the Succession

Act, this Court has, time and again, held that the law of the land is

pervious to the rule of primogeniture. The recent  decision of this

Court in Talat Fatima Hasan Through Her Constituted Attorney

Sh. Syed Mehdi Husain v.  Nawab Syed Murtaza Ali Khan (D)

By LRs. And Others in Civil Appeal No. 1773 of 2002 decided on

July  31,  2019  pertains  to the  Muslim  Personal  Law  (Shariat)

Application Act, 1937 applicable to the State of Rampur. This is

clear from paragraph 12 of the judgment in  Talat Fatima Hasan

(supra),  which  records  that  the  only  issue  to  be  decided  was

whether the properties held by the Nawab would devolve on his

eldest  son  by  applying  the  rule  of  primogeniture  or  would  be

governed by the Muslim Personal Law (Shariat)  Application Act,

1937 and devolve on all his legal heirs.   

40. It may be pertinent to state here that the succession on death of

Brij Nath Singh had opened on 13th October 1968, which is before

Article 362 relating to the rights and privileges of the Indian Rulers

was repealed  by  the  Constitution  (26th Amendment)  Act,  1971.

Article 362, before it was repealed, stated that in exercise of the

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

power of Parliament or of the Legislature of a State to make laws

or in the exercise of the executive power of the Union or a State,

due regard shall be had to the guarantee or the assurance given

under any such covenant or agreement referred to in Article 291

with respect to the personal rights, privileges or dignities of the

Ruler of an Indian State.      

41. Faced  with  the  aforesaid  position,  learned  counsel  for  the

appellants  had  submitted  that  the  property  being  a  leasehold

Nazul plot located in Allahabad and owned by the superior lessor,

i.e. State of Uttar Pradesh, it could not be treated as a sovereign

property in the hands of Raghubir Singh and also in the hands of

Brij Nath Singh. The property should be treated as coparcenary

property belonging to the joint Hindu family and not as impartible

property to which the rule of primogeniture would be applicable.

This contention must be rejected. Brij Nath Singh had taken over

as a Ruler  of  the State of  Maihar in the pre-independence era

when  the  Rulers,  though  subject  to  British  supremacy,  were

treated as absolute sovereign Rulers within their own territories.

There was no distinction between public and private property of

the  Rulers  since  the  distinction  would  be  counter  to  the  basic

attribute  of  sovereignty.  In  Pratap  Singh  (supra),  the  subject

matter included properties held by the ruling Chief of Nabha estate

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

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

such property known as Sterling Castle in Shimla, was purchased

in  the  name  of  the  friend  of  the  ruling  Chief  in  view  of  the

restriction put by the Britishers on acquisition, whether direct or

indirect, by a sovereign or Feudatory Princes of lands in the British

territory. After the Britishers had left, the friend of the ruling Chief

had relinquished his title and conferred it upon the three sons and

widow of the late ruling Chief. The ruling Chief had also acquired a

property in Delhi.  The contention that these two properties were

private properties and not State properties was rejected by this

Court.

42. In  Draupadi Devi and Others  v. Union of India and Others,21

the dispute pertained to perpetual leasehold rights of a property in

Delhi called Kapurthala House which was purchased by Jagatjit

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

19th January  1935.  The  question  whether  it  was  personal  or

State/sovereign property was decided in favour of  the Union of

India  holding  that  it  was  a  State  or  sovereign  property,

notwithstanding the alleged command of  the Maharaja  in  1940

purportedly  declaring  Kapurthala  House  as  his  personal  and

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

March 1937 by Lieutenant Colonel Fisher declaring the Kapurthala 21 (2004) 11 SCC 425. Civil Appeal Nos. 5740-5741 of 2015 Page 38 of 40

House as a State property.  Thus,  leasehold  properties  situated

outside  the  princely  states  have  been  held  to  be  State  or

sovereign  property.  Therefore,  the  contention  of  the  appellants

that the property being leasehold Nazul land situated outside the

princely  state  was  personal  property  must  be  rejected  in  the

absence  of  any  other  evidence  or  material  to  rebut  the

presumption that the property was a part of the impartible estate

belonging to the sovereign Ruler. On the other hand, inheritance

of the property post the death of Raghubir Singh by the new Ruler

including  Brij  Nath  Singh  by  application  of  the  rule  of

primogeniture to the exclusion of others son(s) would indicate that

it was treated as a State or sovereign property.  

43. In  view of  the  aforesaid  discussion,  it  has  to  be  held  that  the

property was a part  of  the impartible property i.e.,  the property

though ancestral was not a part of the coparcenary property, but

was a part of the estate of the sovereign Ruler, Brij Nath Singh.

Further, Brij Nath Singh could transfer the property  inter-vivos or

make a bequest by way of a will.  The contention that the property

was a separate or personal property and, therefore, not a part of

the impartible property has not been established and has not been

proved  by  the  appellants  by  leading  evidence  and  material  to

dispel the presumption.  

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

44. For the aforesaid reasons, we do not find any merit in the present

appeals and the same are dismissed affirming the final findings of

the High Court. There would be no order as to costs.

................................J. (INDU MALHOTRA)

...............................J.        (SANJIV KHANNA)

NEW DELHI; DECEMBER 10, 2019.

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