Case: TRIJUGI NARAIN (D) THR.LRS.  Vs. SANKOO (D) THR. LRS


Decision:
0[ds]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 Others AIR 1932 PC 216   in the following words: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 To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property.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.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 Others (1988) Supp. SCC 133  , wherein it has been observed asimpartible 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 ofIt 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 otheras 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, 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.The legal incidents of sovereign and State property were explained by the Gujarat High Court in D.S. Meramwala Bhayawala v. Bai Shri Amarba Jethsurbhai (1968) 9 GLR 609   in the following[…] 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 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 orlegal 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.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.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.A Constitution Bench of five judges in Kunwar Shri Vir Rajendra Singh v. The Union of India and Others (1969) 3 SCC 150     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 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 and preserved. The Court had accordingly clarified the legal position on the claim to succession, by… 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 appropriateratio 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.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 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.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 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.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 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.In Draupadi Devi and Others v. Union of India and Others, (2004) 11 SCC 425     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 theHouse 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.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.