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

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 12th 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 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 6th 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 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 Nath4. 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 possession5. 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 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 Kumari6. The High Court, by the impugned common judgment dated 12th 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.

Reasoning:
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.