RFA(OS) 23/2004 Page 1 of 100 * HIGH COURT OF DELHI : NEW DELHI + RFA (OS) No.23/2004 & CM No.13060/2004 & CM no.4530/2008 % Reserved on : 04.06.2010 Pronounced on :19.11.2010 TIKKA SHATRUJIT SINGH & ORS. …....Appellants Through: Mr. Rajiv Sawhney, Sr. Adv. with Mr. V.K. Tandon, Adv. Versus BRIG. SUKHJIT SINGH & ANR. ....Respondents Through: Dr. Arun Mohan, Sr. Adv. with Ms. Vaishaliee Mehra for Respondent No.1 Coram: HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported Yes in the Digest? MANMOHAN SINGH, J. 1. The present Regular First Appeal has been filed by the four appellants namely Tikka Shatrujit Singh, Maharaj Kumar Amanjit Singh (Deceased), Smt. Gita Devi and Maharajkumari Preeti Devi against the two respondents namely Brig. Sukhjit Singh and Maharaj Kumari Gayatri Devi under Section 96 of the Code of Civil Procedure read with Section 10 of the Delhi High Court Act against the judgment and decree passed by the learned Single Judge on 03.09.2004 in Suit No. 1052/1977 whereby the suit of the RFA(OS) 23/2004 Page 2 of 100 appellants was dismissed except in respect of the preliminary decree qua exhibit DA and PW-1/1. The appeal was admitted and the status quo order was maintained during the pendency of the present appeal. 2. The respondent no.1 and appellant No.3 are husband and wife and are parents of appellant Nos.1, 2 (sons) and appellant No.4 and respondent No.2 (daughters). The appellant No.2 died intestate and his estate is inherited by his mother appellant No.3 during the pendency of the suit. 3. Originally the Suit was filed by the appellants seeking separation of the shares of the Plaintiffs after the partition of the joint properties. In para 8 of the Plaint, the details of the co- parcenary properties have been given which are as under: “(1) double-storey residential house bearing municipal No.90-A, Greater Kailash-I, New Delhi; (2) Commercial Flat No. 101 on the first floor of the building known as Surya Kiran situated at Kasturbal Gandhi Marg, New Delhi; (3) a residential house known as Villa Bouna Vista and Cottage Villa Chalet, servant quarters, garages, etc. located in Village Chuharwal, Distt. Kapurthala; (4) a residential palace in Mussoorie known as „Chateau‟ St. Helens, Mussoorie; (5) all movables including furniture, carpets, etc. lying in Villa Kapurthala, Chateau St. Helens , Mussoorie and in property in Greater Kailash; (6) all jewellery and valuables lying in the safes of Chateau, Mussoorie; (7) jewellery lying in locked brief case kept in locker no. 325, Gindlays Bank, „H‟ Block, Connaught Placae, New Delhi; (8) jewellery lying in Societies General, Bouleward Haussmann, Paris, France; and (9) shares in joint stock companies, share certificates of which are lying in safe custody with the First National City Bank, Fort, Bombay. It is also pleaded that if there are some (sic) properties which are co- parcenary properties, of which the plaintiffs for the present have no knowledge, if are found, they be also partitioned.” RFA(OS) 23/2004 Page 3 of 100 4. Matrix facts stated inter alia in the plaint by the appellant reads as under: a) That the plaintiffs and defendants formed Hindu Undivided Family and all of them have been joint in estate and worship upto August 1976 and were joint in mess. Defendant No.1 had deserted the family since August 1976 and has been residing at Gymkhana Club, New Delhi; b) That the details of co-parcenary properties have been enumerated in para 8 of the plaint and it is prayed that if any other co-parcenary properties, of which the plaintiffs for the present have no knowledge, if are found, they be also partitioned; c) That on or about January 13, 1977, the defendant No.1 had filed a suit in this Court against plaintiff No.3, praying for a declaration that the two properties namely, Villa at Kapurthala and the Chateau, Mussorie with all the movables lying therein are his personal and exclusive properties and the property at Greater Kailash, B 90-A is also owned exclusively by him, acquired from his personal funds and the jewelries lying in different places in the properties, enumerated in the plaint is owned by him; d) That the defendant No.1, karta of the Hindu Undivided Family (for short the „HUF‟) has set up wrongful claims to the co-parcenary properties and has thus committed a gross misconduct resulting into the plaintiffs‟ seeking the relief of partition of the joint family/co-parcenary properties. The grandfather of the defendant No.1 had succeeded to the Gaddi of Kapurthala as a male heir, constituting a valuable property right carrying privileges, title and monetary benefits and all the properties of the Gaddi including the income attached to the Gaddi were ancestral properties in his hands and the property acquired by grandfather wit the aid of any impartible estate became ancestral properties, governed by law of inheritance, applicable to the Mitakshara School and the great grandfather of the plaintiffs 1 & 2 had built Chateau St. Helens at Mussorie with the aid of ancestral funds and the properties acquired with the aid of any impartible estate by the great grandfather or the grandfather of plaintiffs 1 & 2 became HUF properties and the defendant No.1 and his father had not acquired any property with the aid of any privy purse and even if they did so, the same also at any rate became HUF co-parcenary RFA(OS) 23/2004 Page 4 of 100 properties as any property acquired wit the aid of impartible estate would become joint property with all the incidents of co-parcenary attached to it and all the jewelleries as well as the pieces of art, etc. are ancestral properties; e) That some of the properties have been acquired by defendant No.1 from the compensation received by defendant No.1 in respect of the zamindari rights which were ancestral properties and also from the sale proceeds of the palace at Kapurthala.” 5. The respondent no.1 (defendant no. 1 in the suit) filed his written statement and counter claim has inter alia taken the following defence: (a) That the appellant No.3 had no locus standi to represent appellant Nos. 1,2 & 4 but that objection no longer survives inasmuch as the minors had become majors and had elected to pursue the suit and even a statement was made by defendant No.1 stating that respondent No.1 did not dispute the right of the appellant No.3 to act as next friend of the minor plaintiffs I the present suit; (b) that no partition could be claimed in respect of impartible estate and that the suit is also not maintainable because the properties in dispute had developed on defendant No.1 by virtue of two Wills dated January 16, 1949 and July 10, 1955 by his late grandfather and father respectively and defendant No.1 is absolute and exclusive owner of the said properties which have been assessed for taxation purposes as his individual properties and the Wills, propounded by the father as well as the Grandfather of defendant No.1 have been duly probated not only in RFA(OS) 23/2004 Page 5 of 100 India but also in England and France and thus cannot be challenged; (c) that the plaintiff No.3 has taken a plea in his written statement in response to the Suit No.35/77, filed by the defendant No.1, stating that the alienation of the Gaddi and the properties comprising the Kapurthala state was also not permissible by the family custom and the plaintiff No.3 in the said written statement admitted that the Gaddi of Kapurthala and all the properties of the Maharaja for the time being used to devolve on his eldest son according to the rule of primogeniture survivorship; (d) that in the State of Punjab there existed no right of partition in respect of joint family estates during the life time of the father and the suit has been filed by plaintiff No.3 at the instigation of some other person, namely, Shri Anup Singh when in fact plaintiff No.3 has no right in the properties; (e) that the defendant No.1 being the only son of Maharaja Paramjit singh of Kapurthala was recognized by the Government of India as a „Ruler‟ and he was the recipient of a privy purse of Rs. 2,70,000/- per annum till the enactment of the Constitution (Twenty Sixth) Amendment Act, 1971; (f) that like the other ruling families of Punjab, succession in the Kapurthala family has always been according to the rule of primogeniture and the laws governing impartible esatates and the properties of the Ruler of RFA(OS) 23/2004 Page 6 of 100 Kapurthala have always devolved in accordance with the rule of primogeniture as an impartible estate and the holder of the same holds such properties absolutely; (g) that on May 5, 1948 the rulers of various states including of Kapruthala had entered into a Covenant with the concurrence of the Government of India for the integration of their territories into one union by the name of Patiala and East Punjab States Union which also provided that the ruler of each Covenant State shall be entitled to full ownership, use and enjoyment of all the private properties, belonging to him on the date of his making over the administration of that State to the Raj Pramukh and the said Covenant also provided that the privy purse which was to be given under the said Gaddi became impartible and the law of primogeniture applied to it and was accepted by the Government of India. (h) that Maharaja Jagatjit Singh during his life time had gifted jewellery, valuables and money to defendant No.1 from time to time and the jewelleries/valuables came to defendant No.1 vide the Wills of his grandfather and father are his exclusive properties and in law the property devolved by principle of primogeniture vests in the holder thereof absolutely and exclusively; (i) that in view of his being employed on active duty with the army involving great risk to his life, the respondent RFA(OS) 23/2004 Page 7 of 100 No.1 had included the name of appellant No.3, his wife as the mere namelender, while acquiring several movable and immovable properties although entire consideration for the same were paid by defendant No.1 with his own money and properties, mentioned in Anex.4 of the written statement and he had been also giving money from time to time to his wife for maintenance and she had purchased various properties from the said funds and in fact has no right or title to the said properties; (j) that the defendant No.1 has filed a Suit No. 35/77 against the plaintiff No.3, his wife, restraining her from entering the Villa, Kapurthala, the Chateau, Mussorie and from removing the valuables lying in property in Greater Kailash; (k) that the plaintiff No.3 had caused a cloud on the title of defendant No.1 in respect of his exclusive properties and the properties acquired jointly in the name of plaintiff No.3 exclusively belong to defendant No.1 as plaintiff No.3 had no source of her for acquiring any properties and that the Villa properties stand in the name of plaintiffs 1 & 2 although the entire consideration of the said property was paid by him; (l) that in respect of the impartible estate, a member of the family can only claim the right of survivorship and the impartible estate is not a co-parcenary property and thus, the suit for partition is not at all maintainable; RFA(OS) 23/2004 Page 8 of 100 (m) that out of the compensation received by defendant No.1 in 1975 for the U.P. Zamindari from the Government of U.P., he had made over some specific assets to the family and declared the said assets as joint family assets and effected partial partition in March 1976 purely with a view to make suitable provision for the members of his family and also for obtaining the tax reliefs; (n) that the plot of land in respect of House No. B-90A, Greater Kailash-I, New Delhi was purchased and constructed by him from his own personal funds and the same is his self-acquired property and he had voluntarily arranged for the plaintiff No.3 to have one seventh share in the said house and commercial Flat No.101, Surya Kiran, was purchased by him form his own funds and the same is his exclusive and absolute property although he had joined the name of plaintiff No.3, his wife as co-vendee in the sale deed of the said flat and that the entire consideration for the purchase of residential house known as Villa Bouna Vistra and Cottage, Villa Chalet came from his own sources and he is the exclusive owner of the same; (o) that all the movables lying in Chateau St. Helens at Mussorie absolutely vest in him on the basis of the said Will and the jewelery/valuables are part of his impartible estate and he is the exclusive owner of the shares although name of plaintiff No.3 has been included as joint owner of the shares as mere RFA(OS) 23/2004 Page 9 of 100 namelender and he had acquired those shares with his own money and that he is also the sole beneficiary of the life insurance policies and; (p) that all the properties of late Maharaja of Kapurthala including the Gaddi have always devolved on the eldest son under the rule of primogeniture as an impartible estate and thus they are not liable to be partitioned and moreover, he had acquired those properties under the Wills and thus, is absolute owner of the said properties and as he acquired those properties in 1955 on the death of his father, i.e., prior to the enactment of Hindus Succession Act, 1956, so he continues to be the owner of the said property exclusively and those properties have never become joint Hindu family properties or co-parcenary properties. There was also the counter-claim of respondent No.1 alongwith written statement for declaration that he is the absolute owner of the properties. There is also Suit No.35 of 1977 for injunction, damages, etc. 6. The issues were framed on 07.03.1980 but some issues were modified and the modified issues framed on 11.03.1980 are as follows: 1. Whether the properties in the suit are co-parcenary properties? OPP 2 If Issue No.1 is proved, whether the properties are not liable to partitioned? OPD 3 Is the present suit not in the interest of plaintiffs 1 and 2? OPD RFA(OS) 23/2004 Page 10 of 100 4 What are the rights of plaintiffs 3 and 4 and defendant No.2 in the property in dispute in case they are found to be co-parcenary properties and partible ? OPP 5 Did Maharaja Jagatjit Singh make a declaration dated 11.8.1948 declaring Mussoorie Chateau and other associated properties to be his self-acquired properties. If so, to what extent ? OPP 6 Did Maharaja Jagatjit Singh execute a Will dated 16.1.1949 ? If so, to what effect ? OPD 7 If Issue No.1 is proved in favour of the plaintiff, whether Maharaja Jagatjit Singh bequeath the property by Will dated 16.1.1949 ? OPD 8 Did Maharaja Paramjit Singh execute a Will dated 10.7.1955 ? If so, to what effect ? OPD 9 If Issue No.1 is proved in favour of the plaintiff, whether Maharaja Paramjit Singh could bequeath the property by means of a Will dated 10.7.1955 ? OPD 10 What is the nature of the property held by defendant No.1? OPD 11 Relief. 7. There were also subsequent statements by the Learned Counsel for the parties which were recorded on 9th September 2001 curtailing the issues to some extent:- “Statement of Mr. Madan Bhatia, Counsel for plaintiffs, and Mr. Arun Mohan, Counsel for defendant No.1 without oath, and of plaintiff No.3 and defendant No.1 on oath: We agree that the properties B-90-A, Greater Kailash, flat No.101, Surya Kiran, 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, Kapurthala. It is also agreed that Rs.1,20,000/- in respect of the Villa at Kapurthala was paid to the heirs of Maharani Brinda Devi 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 RFA(OS) 23/2004 Page 11 of 100 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 lifetime of the father. How-ever, defendant No.1 does not press the plea that the present suit is not for the benefit of the minors. Other pleas remain.” In view of the statement made, issue No.3 was decided in favour of the appellants/plaintiffs in the suit. 8. Issue nos. 1,2 and 10 being inter connected and were decided together. 9. After recording the evidence of the parties, the suit of the plaintiff was decreed vide judgment and decree dated 06.04.1992. The findings of the learned judge in its judgment are: a. The Will of the grandfather did not exist. b. The Will of the father was invalid. c. Custom of impartibility governed by the rule of primogeniture as recognized by Hindu Law did not exist in the family of Kapurthala. d. Succession of sovereign rulers from the time of Randhir Singh was because of the recognition granted by the British as paramount power. e. After the merger of the states Maharaja Jagatjit Singh became an ordinary citizen subject to all the laws of the land. f. When he died his properties developed upon his son Maharaja Paramjit Singh in accordance with the RFA(OS) 23/2004 Page 12 of 100 personal law of the family of Kapurthala which was the Mitakshara Hindu Law. g. As a sovereign ruler Maharaja Jagatjit Singh held all properties as his private personal properties by virtue of his princely power inasmuch as sovereign rulers owned all properties without any distinction between public or private properties in exercise of their sovereign power. h. Sovereign rulers were not subject to Hindu Law or any custom. They were above law. i. Properties in the hands of sovereign ruler were not joint Hindu family properties as sovereign rulers were above law were not governed by Hindu Law. No member of the family could afford to challenge his authority or was in a position to claim protection. 10. Later on the said judgment was reviewed by the same learned Single Judge on 28.04.1995 pursuant to the review applications being R.A. No. 09/1992, 03/1993 in Suit No. 1052/1997 and 35/1977 filed by the respondent no.1. In the review applications, it was contended by the respondent no.1 that the important point about the presumption in favour of the existence of a custom of primogeniture in the family has not at all adjudicated by the learned Single Judge who had in his order dated 28.04.1994 held that it was a crucial point raised by respondent no.1 (defendant no.1 in the suit). The learned Single Judge after referring various decisions, pleading and material, allowed the RFA(OS) 23/2004 Page 13 of 100 review applications in respect of issue nos. 1, 2, 4, 5, 10 and 11. The review as regards issue nos. 6 to 9 was rejected and the issues were decided against the respondent no.1. The matter was put by the learned Judge for hearing of the Suit. 11. The matter was subsequently heard by another Hon‟ble Judge. By the impugned judgment dated 03.09.2004, the learned Single Judge dismissed the Suit of the appellants except in respect of exhibit DA and PW-1/1, the preliminary decree was passed. Exhibit DA and PW-1/1 are two family settlements entered into between the appellants and respondent no.1 in which he admitted that he is the Karta of the Joint Hindu Family and appellant nos. 1 and 2 continued co-parcenary. The two documents are by way of partition of the UP Zamindari Bonds which were given to the family on abolition of Oudh Zamindari i.e. one of the properties declared by Maharaja Jagatjit Singh as one of the private properties on the merger of the state. 12. The learned Single Judge in his judgment has not dealt with the effect of the two Wills as it was felt by the learned Single Judge that they were in any event not covered by the surviving issues and it was sovereign state. 13. The present appeal has been filed against the judgment and decree dated 03.09.2004. The respondent no.1 filed the cross-objection in the appeal under Order 41 Rule 22 of the Code of Civil Procedure thereby praying that the findings given by the learned Single Judge in its judgment and decree dated 06.04.1992 which were not reviewed in its order dated 28.04.1995 with regard to the Wills be set aside and it be held that the two Wills marked X- RFA(OS) 23/2004 Page 14 of 100 8 and Ex.D-11 are the last valid wills of the two Maharajas. The said cross-objections were numbered as CM No. 11751/2005. 14. By the impugned judgment and decree the learned Single Judge, after discussion on issue nos. 1,2,4,5, 10 and 11 had given the following answers:- 1. Whether the properties in the suit are co-parcenary properties? OPP Held: No 2 If Issue No.1 is proved, whether the properties are not liable to partitioned? OPD 4 What are the rights of plaintiffs 3 and 4 and defendant No.2 in the property in dispute in case they are found to be co-parcenary properties and partible ? OPP Held: Answers to issue No.2 and 4 are not required in view of answer to issue No.1. 5 Did Maharaja Jagatjit Singh make a declaration dated 11.8.1948 declaring Mussoorie Chateau and other associated properties to be his self-acquired properties? If so, to what effect? OPD Held: Yes, but the Mussorie estate was personal and private property of Jagatjit Singh. The property covered by the declaration dated 11th August, 1948 is governed by primogeniture. 10 What is the nature of the property held by defendant No.1? OPD Held: The suit properties except properties covered by Ex. DA dated 11th March, 1975 and Ex. PW1/1 dated 26th March, 1976 are not joint family properties and are exclusively owned by Defendant No.1 by inheriting them according to the custom of primogeniture. 11 Relief. Held: The surviving Plaintiffs are not entitled to any relief except of reasonable maintenance in accordance with the custom of primogeniture and a preliminary decree qua Ex. DA & PW 1/1 entitling each of the sons and the wife of defendant No.1 to receive their 1/4th share each of Ex. DA & PW1/1. RFA(OS) 23/2004 Page 15 of 100 15. The above said answers to the issues are on the basis of findings arrived by the learned Single Judge while dismissing the suit in the impugned judgment in para 85, 88, 95, 96, 97, 104 to 106, 112, 113, 121, 133, the same reads as under : “85. In my view these are sufficient pleadings so as to permit the defendant No.1 to urge and prove the custom of primogeniture. While proving the custom of primogeniture, the defendant No.1 cannot be precluded from referring to a custom in the Kapurthala family. The above extracted pleading of the defendant No.1 in my view, is sufficient to enable the defendant No.1 to aver and prove custom. 88.