JUDGMENT [ENTITY], J.
(1) Before I deal with the arguments addressed on the question of review of the judgment, I may reproduce the issues framed in the case: 1. Whetherthe properties in suit are coparcenary properties ? O.P.P. 2.If issue No.1 is proved, whether the properties are not liable to be partitioned ? O.P.D. 3.Is the present suit not in the interest of plaintiffs 1 & 2 ? O.P.D. 4.What are the rights of plaintiffs 3 & 4 and defendant No.2 in the property in dispute in case they are found to be coparcenary properties and partible? Opp 5.Did [ENTITY] make a declaration dated 11-8-1948 declaring Mussooorie Chateau and other associated properties to be his self-acquired properties? If so, to what effect? Opp 6.Did [ENTITY] execute a Will dated 16-1-1949 ? If so, to what effect ? Opd 7.If issue No.1 is proved in favor of the plaintiff, whether [ENTITY] could be quea the the property by Will dated 16-1-1949 ? Opd 8.Did [ENTITY] execute a Will dated 10-7-1955. If so, to what effect ? 9.If issue No.1 is proved in favor of the plaintiff, whether [ENTITY] could bequeathe property by means of a Will dated 10-7-1955 ? Opd 10.What is the nature of the property held by defendant No.1 ? Opp 11.Relief.
Following statement was made by counsel for the parties: "WE agree that the properties B-90-A, Greater Kailash, Flat No.101, [ENTITY], New Delhi, and the shares of Continental Devices India Ltd., standing in the joint names of Plaintiff No.3 and Defendant No.1, were acquired from the sale proceeds of the Jagatjit Palace and Elysee Palace, [ENTITY]. It is also agreed that Rs.1,20,000.00 in respect of the Villa at [ENTITY] was paid to the heirs of [ENTITY] out of the sale proceeds of the Jagatjit Palace and Elysee Palace. This joint statement is given by the counsel for the parties without prejudice to their contentions as to the character of the Jagatjit Palace and Elysee Palace in the hands of Defendant No.1. There were four Life Insurance policies mentioned in clause 4(a) of Memorandum dated 11.3.1975. Two of these policies were to mature in the year 1979, and the other two were encashed (premature) in the year 1980, and the money was placed into the Hindu Undivided Family bank account with the Punjab & Sind Bank, Janpath, New Delhi by defendant No.1. Parties are agreed that the above matter can be decided on the question of principle as to the character of the property in the hands of Defendant No.1, and the custom prohibiting a son from claiming partition in the life time of the father. However, Defendant No.1 does not press the plea that the present suit is not for the benefit of the minors. Other pleas remain."
(2) Issue No.3 was not pressed by counsel for defendant No.1. Issues Nos.1,2 & 10 were dealt with together and findings were given by this Court. These issues were decided in favor of the plaintiffs and against defendant No.1 giving the finding that the customary rule of primogeniture was not applicable to the family and the properties in question in hand of defendant No.1 were coparcenary properties and the said properties are liable to be partitioned.
(3) In Issue No.4 the finding was given that plaintiff No.1 and defendant No.1 have one-fourth share each and plaintiff No.3 shall have one-fourth share of her own and one-fourth share of plaintiff No.2 (since deceased) while plaintiff No.4 and defendant No.2 were not to have any share in the said properties. Issue No.5 was dealt with while giving the findings in Issues Nos.1,2 & 10.
(4) In Issue No.6 it was held that it is not proved that [ENTITY] had executed any will dated January 16, 1949. So, the issue was decided against No.1.
(5) In Issue No.8, again a finding was given that it is not proved that [ENTITY] had executed a will dated July 10, 1955.
(6) Issues Nos.7 & 9 were to arise only if the findings were to be given in Issue No.6 & 8 in favor of defendant No.1 and thus, in view of the aforesaid findings on various points, a preliminary decree for partition was passed and a Local Commissioner was appointed to suggest the mode of partition. Counter- claim of defendant No.1 was dismissed with regard to some of the properties.
(7) The review application has been filed by defendant No.1 on various grounds. I had, after hearing the counsel for defendant No.1-applicant, vide my order dated August 14, 1992, directed for issuance of notice to show-cause why the review application be not admitted. There are three stages through which the review application can proceed which have been dealt with in a judgment given in [PRECEDENT], . The first stage is when the review application is filed and is taken up for hearing by the court concerned and at that stage, after hearing the applicant the court has two options, either to dismiss the application summarily as disclosing no ground for review and that would be end of the matter. But if the court feels that review application is liable to be granted prima facie, then a notice has to be issued to the opposite side to show- cause as to why review application be not granted and the third stage will come if after hearing counsel for the parties the court finds that there is sufficient ground for reviewing the judgment and such grounds are that some important findings which go to the core of the decision of the suit have been arrived at without noticing some material points argued before the court or findings arrived at are per se against the statute or against binding precedents or certain material points have remained unadjudicated. The review can also be granted if there has been wrong reading of the pleadings, oral and documentary evidence or omission to consider any important piece of evidence or referring to the facts which do not exist on the record and finding is based on these facts.
(8) In the present case, the review application has reached the second stage and the court has to decide whether the review could be granted or not. It is evident that if the review is to be granted on the points raised in the review application then the court has to hear the matter afresh and after due hearing the court can still maintain the judgment already given or can modify the judgment or even set aside the judgment and deliver a totally different judgment. It is not necessary to deal with every judgment referred by the learned counsel for the applicant which enunciate the various principles on which a review can be granted. It would be suffice to just refer to the said judgments.
(9) [PRECEDENT][PRECEDENT] [PRECEDENT], [PRECEDENT] v. Ramalonga, ,[PRECEDENT], ,[PRECEDENT] , [PRECEDENT] [PRECEDENT] [PRECEDENT], ,[PRECEDENT], ,[PRECEDENT], ,[PRECEDENT], , [PRECEDENT] [PRECEDENT], ,[PRECEDENT]Governor, , State of Rajasthan v. M/s.Mehta Chetan Das Kishandass Nalagarh [PRECEDENT], ,[PRECEDENT], , [PRECEDENT] [PRECEDENT] in [CASE NUMBER], It has been vehemently contended by counsel for defendant No.1-applicant that a very important point arising for decision in the matter was whether ther was a presumption in favor of the existence of a custom of primogeniture in the family and the judgment has not at all adjudicated on this very crucial point and had also not referred to various judgments including of Privy Council which lay down the law that there exist such presumption that Hindu Rulers were invariably governed by rule of primogeniture. He has argued that if this presumption has been raised in favor of defendant No.1, the findings of this court on the crucial points might have been different. He has referred to Volume Vi (1854-7) Moore's Indian Appeals 164, [PRECEDENT]., where it has been laid down that with respect to a Raj as principality, the general rule is otherwise and must be so and in that contest the general rule was of rule of primogeniture and then he has referred to [PRECEDENT], where it was laid down that it belongs to a question of possession which was in the nature of chieftainship and impartible. Once an estate is impartible, the natural corollary is that the same is inherited by rule of primogeniture.
(10) The learned counsel has then made reference to [PRECEDENT], wherein it has been held that in so far as rulers are concerned, their estates are impartible. Reference is also made to [PRECEDENT] , in which it was observed that there could, therefore, be no question of his proving as the High Court had required him to prove that the properties in his possession were impartible. He has also referred to customary law in Punjab by Sir [ENTITY] where it is recorded that the rule of primogeniture only prevails in families of ruling chiefs or Jagirdars whose ancestors were ruling chiefs. He has also cited [PRECEDENT], , where it has been laid down that 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 this body. This was a very famous Privy Purse case. In that very judgment, it was observed that all the properties held by a Monarch or Ruler devolved by the rule of primogeniture and that respondent No.1 was a sovereign and the properties in dispute as held by the sovereign rulers from time to time were impartible. He has also cited [PRECEDENT], , [PRECEDENT], [PRECEDENT] [PRECEDENT], ,[PRECEDENT], and [PRECEDENT]. In all of these judgments, it was held that such rulers were governed by customary law of primogeniture. The learned counsel has also cited a recent judgment of the Supreme Court given on August 17, 1993, in [CASE NUMBER] [PRECEDENT], holding that though impartibility and primogeniture in relation to zamindari estate or other impartible estates are to be established by customs, in the case of a sovereign ruler, they are presumed to exist.
(11) The learned counsel for the applicant has contended that Explanation added in 1977 to [SECTION] the [ACT] would not be applicable because what has been held by the Supreme Court in [ENTITY] case is not any new proposition of law but is only reiteration of the consistent legal position held in various judgments cited by him and thus, while considering the question whether review of the judgment should be granted or not, the ratio laid down by the Supreme Court in the aforesaid case of [ENTITY] can be taken into consideration. He has argued that the judgment does not at all deal with this question and so an important point which was argued before this court and was also predominantly highlighted in the written submissions has not been adjudicated.
(12) The learned counsel for the applicant has argued that there is not even a single judgment cited by the other side which has taken any different or contrary view about the presumption arising in the case of Hindu Rulers about the applicability of the principle of rule of primogeniture in respect of their estates which are impartible by their nature. He has also pointed out that the judgment has proceeded on the wrong assumption that it was for defendant No.1 to prove that the custom of primogeniture was applicable to the family. He has argued that in case the presumption has been raised it would have been for the plaintiffs to prove from the evidence how this presumption stood rebutted with regard to the [ENTITY].
(13) The learned counsel for the opposite side Mr.[ENTITY] has, however, argued that this court has given a finding of fact after going through the history of the family that at no point of time the custom of primogeniture has come into existence in this ruling family of [ENTITY]. He has argued that question of raising any presumption became unnecessary in view of the peculiar facts of the present case. He has urged that a specific custom has been sought to be pleaded and that specific custom stood not proved as per finding of this court, hence, there was no necessity for this court to have referred to all those judgments cited by the learned counsel for defendant No.1 and also mentioned in the written submissions as the court has not to deal with the point which could not have been material in deciding the real issue arising between the parties, whether there did exist or did not exist a particular family custom pleaded in the plaint. He has argued that even if such a presumption had been raised by the court while deciding this issue, the effect would have been same as the court has given finding regarding non-existence of such a custom in the ruling family of [ENTITY] on the basis of history of the family as was evident from the judgment itself and this court has held that even if any such presumption arises the same stood rebutted.
(14) It has been contended that in view of the legal presumption arising with regard to applicability of custom of impartible estate and succession by primogeniture with regard to the Hindu Rulers, the onus of the relevant issues was placed on the plaintiffs and not on defendant No.1-applicant but the judgment has not adjudicated this principal contention of counsel for defendant No.1 that there is a legal presumption in favor of defendant No.1 that the Rulers of [ENTITY] including defendant No.1 were presumed to be governed by the custom of primogeniture with incidence of impartibility of their estate. It is contended that as the crucial point regarding the raising of presumption in favor of defendant No.1 before dealing with the evidence led in the case has been not adjudicated upon by the court, thus a review of the judgment is called for.
(15) The learned counsel for the plaintiffs, on the other hand, has contended that in para 71 of the judgment the court has taken into consideration the so- called presumption and still had given the finding that the said presumption stood rebutted keeping in view the peculiar facts of the present case. In para 71 it was held by this court as follows: "EVEN if any rule of primogeniture with its incidence of impartbile estate was applicable, the same by virtue of this declaration stood abrogated because being a sovereign ruller and subject to any law the expression of the will of monarch was the law applicable to his properties and his subjects. If he was a sovereign ruller and could lay down any law then obvious inference is that by making this declaration as sovereign ruller he abrogated all other laws applicable to his inheritance, if any, including the rule of primogeniture. If it is to be presumed that such a custom of inheritance of rule of primogeniture was being followed in the ruling family of [ENTITY] State."
(16) This passage in the judgment was quoted with a view to interpret the document Ex.D1 whereby certain declarations had been made by the Maharaja just a few days prior to the merger of [ENTITY] State with other states to form the State of PEPSU. No where in the judgment this court has noticed the various judgments of the Privy Council and of the Supreme Court which lay down that in case of Hindu ruler a presumption has to be drawn that the succession to the Hindu ruler would be governed by the principle of impartibility of the estate Along with the inheritance by rule of primogeniture.
(17) In [PRECEDENT] (supra) the Privy Council had laid down that by the general law prevailing in this district and indeed generally under the Hindu law, estates are divisible amongst the sons when there are more than one son; they do not descend to the eldest on whatever divisible amongst all but with respect to a Raj as principality, the general rule is otherwise and must be so.
(18) In [PRECEDENT] (supra), the Privy Council had observed while dealing with certain Zamindari and laid down that the estate being in nature of chieftainship and impartibility, rule of primogeniture applies.
(19) In [PRECEDENT] (supra) while dealing with the Amgaon Estate held that the same was not in the nature of a sovereign ruler estate whose possession were necessarily impartible.
(20) In [PRECEDENT] (supra) it was held that there could, therefore, be no question of his proving as the High Court had required him to do that the properties in his possession were impartible. It was held in that case that it was a case of a sovereign.
(21) In [PRECEDENT] (supra), the wellknown Privy Purse case, it was held at page 596 that 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 this body. The judgment delivered by the Supreme Court, after the judgment was given by this court, in the case of [PRECEDENT] (supra), same legal position has been reiterated by the Supreme Court that though impartibility and primogeniture in relation to Zamindari estates or other impartible estates are to be established by customs, in the case of a sovereign ruler they are presumed to exist. This judgment has not modified any previous judgments of the Supreme Court or of the Privy Council on this subject but has only reiterated the law as was being followed all along with regard to the presumption being raised in respect of the Hindu rulers that their estates were impartible and the inheritance was governed by the rule of primogeniture. So, it cannot be said that this judgment, which has been delivered subsequent to the decision of the case by this court, cannot be looked into in view of the Explanation added in 1977 to [SECTION] of the [ACT].
(22) In the Digest on Customary Law in Punjab by Sir [ENTITY], it has been laid down that the rule of primogeniture only prevails in the families of ruling chiefs or zagirdars whose ancestors were ruling chiefs. So, it is evident that this court has not adjudicated on these material questions arising for decision before this court and had only passed its judgment on the history of the rulers of [ENTITY] culled out from the book Ex.PW1/51. It is evident that if this court had adjudicated upon on this crucial issue the appreciation of evidence would have taken a different context.
(23) This court has not allowed counsel for defendant No.1 to refer to instances or transactions pertaining to prevalence of rule of primogeniture to other Hindu rulers which finding is not in consonance with the provisions of [SECTION] of the [ACT] and rather that Section has not even been referred to in the judgment. Under [SECTION] of the [ACT], only the custom which was applicable to the parties in question was to be pleaded. It is urged that it was not necessary to plead the transactions and instances which are otherwise admissible in evidence under [SECTION] of the [ACT] pertaining to other similar ruling families in the written statement. It is urged that the order of [ENTITY], J. by which he had disallowed a particular question pertaining to proof of such similar transactions and instances on the ground that the same is beyond pleadings was not binding on the court while deciding the matter at final stage inasmuch as not only the said order disallowed only one particular question and did not debar reference to such similar transactions and instances, which needed no proof, to be considered at the time of the final arguments and at any rate, the said order was also per incurium inasmuch as it was contrary to the provisions of [SECTION] of the [ACT] and these points have not been at all adjudicated by this court while deciding the case.
(24) The learned counsel for the applicant/defendant No.1 has referred to the case of [PRECEDENT], which has followed the dicta laid down by the Supreme Court in the case of [PRECEDENT], , to the effect that the order concerning the relevancy of a question regarding admissibility of a documentary evidence is an interlocutory order and it is obvious that an order concerning the admissibility of oral evidence is also an interlocutory order and the admissibility of any evidence in the context of the totality of the evidence can be urged at the final arguments on behalf of the defense before the Judge pronounces his judgment and such interlocutory orders cannot and would not stand in the way of arguments that may be advanced against admissibility at the final stage. It is evident that all these legal questions have remained unadjudicated by this court while deciding the suit on merits.
(25) It is also pointed out by the learned counsel for the applicant that administration reports although have been referred to by this court in the judgment but a crucial fact appearing in those reports has escaped the notice of this court because those reports Exs.X-22 to X-25 clearly show that ruling family of [ENTITY] follows primogeniture and the words "heir apparent" also appear in such administration reports Exs.X-26 and X-27 and in this connection, the statement of [ENTITY] DW4, who was Chief Secretary of [ENTITY] State, has been also overlooked.
(26) It is also urged that document Ex.D1 has been not correctly interpreted by this court and the contentions raised with regard to the interpretation of the said document Ex.D1 have been overlooked. It is also urged that some of the ancilliary legal questions remained unanswered by this court or have been answered illegally inasmuch it has not been noticed by the court that there has been no plea of the plaintiffs that in case the rule of primogeniture was not applicable how only one person could have inherited the estate to the exclusion of other family members as principle of one- man Mitakshara is unknown in law and there were no pleadings of the plaintiffs that other heirs who could be coparceners if rule of primogeniture was not applicable, had at any time partitioned out or abandoned their rights and how all those heirs have been receiving only maintenance allowance. It is pointed out that [ENTITY] had left behind three surviving sons and other close relations and in case the inheritance was to be in accordance with Mitakshara Law then his sole son [ENTITY] alone would not have succeeded to the estate. It is urged that there was no issue framed that in case Mitakshara Law was applicable the other heirs had either partitioned or abandoned their claims. He has made reference to [PRECEDENT], wherein it has been laid down that mere fact that other heirs have kept quiet would not mean that they have either abandoned or waived their rights.
(27) It has been also urged that according to the custom prevalent to the Sikhs and Punjabis, a son could not claim partition during the life time of his father and reference is made to Digest of Civil Law composed by Sir [ENTITY] at page 118 and to judgment given by Punjab and Haryana High Court in the case of [PRECEDENT].
, , but this court has followed the two judgments of Delhi High Court which did not pertain to Sikhs or Punjabis and thus, a finding has been given that a son can claim partition even during the life time of his father and the contention of the counsel for defendant No.1 that said two judgments of Delhi High Court would not apply to the Punjabis or Sikhs had remained unadjudicated. I find that all these points which go to the root of the matter require to be considered by granting the review. Hence, I allow both the applications but I grant the review in respect of issues Nos.1,2,4,5,10 & 11. The findings of this court with regard to the issues 6 to 9, in my opinion, do not call for any review. For hearing arguments, put up on.