Case: TRIJUGI NARAIN (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS Vs. SANKOO (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS

(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.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opened on 13th October 1968, which is before Article 362 relating to the rights and privileges of the Indian Rulers was repealed by the Constitution (26th Amendment) Act, 1971. Article 362, before it was repealed, stated that in exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or a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 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, (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 the Kapurthala 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.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]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 200513. 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 sonsThe 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 property27. 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 Constitution28. 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 exist40. 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 StateThis 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 CourtTherefore, 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 property43. 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 presumptionThe 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.