Delhi High Court
Tikka Shatrujit Singh & Ors. vs Brig. Sukhjit Singh & Anr. on 19 November, 2010
Author: Manmohan Singh
* 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
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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."
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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
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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
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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
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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
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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;
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(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
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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
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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 9 th 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
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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
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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
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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-
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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
th
covered by the declaration dated 11 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 1/4 th
share each of Ex. DA & PW1/1.
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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. After considering the position of law
laid down by the Hon‟ble Supreme Court in
Jaikrishan Nagwani & Others Vs.
Brotomarics Enterprises Pvt. & Others 1987
Suppp. SCC 72 to the effect that the
decision on an issue at an interlocutory
stage is not binding at the final hearing
stage and since the order of Justice Talwar
dated 9th March, 1981 is indisputably of an
interlocutory nature, I hold that the
defendants are not precluded from proving
and urging the rule/custom of
primogeniture and the order of 9th March,
1981 does not come in the way of the
defendant No.1.
95. The above documents in addition to
the oral evidence adduced on behalf of the
defendant successfully establish the
sovereign character of the erstwhile
Kapurthala State. Consequently, the
plaintiff‟s plea that the rulers of Kapurthala
were merely Jagirdars or Chiefs and not
Rajas is wholly without substance and even
though the plaintiffs though required to,
had not substantiated this plea, the
defendant No.1 by his evidence has
established conclusively that Kapurthala
was a sovereign State. The above
documents and testimony on behalf of
defendant No.1 clearly prove that the
custom of primogeniture was invariably
prevalent in Hindu Sovereign States all
across India and certainly in Punjab. This is
also proved by the Administrative Reports
which indicated that bearing a few
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exceptions, in cases of Hindu Rulers, the
custom of primogeniture invariably
prevailed.
96. While it is not conclusive of the legal
position, it is significant that the plaintiff
had herself pleaded in the written
statement in Suit No. 35/77 filed by the
defendant No.1 against her for alienation of
„Gaddi‟ and properties, that the partition of
Kapurthala estate was not permissible
according to the family custom. Similarly
in Ex. D-6 the plaintiff No.3 herself had
described that the defendant No.1 was the
exclusive owner of the estate of Kapurthala
and held it as his exclusive personal
property. The plaintiff‟s further plea was
that the customary rule of primogeniture in
respect of properties of sovereign rulers
and in respect of succession the „Gaddi‟ of
Kapurthala were imposed by the British
paramountcy and could not be equated
with the family custom recognizable in law.
The plaintiff pleaded that a custom must
not only be ancient and invariably followed
but must evolve through a conscious and
voluntary acceptance by the family over
generations. The succession of Randhir
Singh after the annulment of the Will of his
father, Sardar Nihal Singh was only through
the British intervention and not on account
of any custom. In any event the rule of
primogeniture even if prevalent came to an
end upon the independence of India on 15 th
August, 1947. It was also pleaded that no
reference can be made to the other rulers
of India and Punjab. It was further pleaded
that the Order dated 11 th August, 1948
(Exhibit D-1) of Maharaja Jagatjit Singh
brought an end to the custom of
primogeniture even if it existed. I am of the
view qua the Kapurthala ruling family the
custom of primogeniture Kapurthala State
can not obviously be prior to the founding
of the erstwhile Kapurthala State. The
defendant no.1 by the tracing out the
history of Kapurthala at least since Bhag
Singh‟s reign has demonstrated that the
custom of primogeniture was prevalent
and followed in Kapurthala. Similarly the
declaration of 11th August, 1948 only was in
relation to the Mussorie Estate and could at
best be required to be confirmed to the
property enumerated therein even if the
plaintiff‟s plea about the Mussorie property
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is accepted and could not bring to an end
the custom of primogeniture qua the rest
of the properties.
97. The plaintiffs have not led any
evidence to substantiate their plea of the
imposition of primogeniture by the British.
The rule of primogeniture was clearly a
customary one and not based on my
statutory provisions or any Act or order
passed by the British in the exercise of
their paramountcy. The plaintiffs have
largely relied upon Ex. PW1/51 which is the
book „Rajas of Punjab‟. Even otherwise any
statement in a book is not conclusive of
this issue. In fact it is the defendant No.1,
who has successfully demonstrated and
proved the widespread prevalence of the
custom of primogeniture in the Kapurthala
family. He has further proved that
Kapurthala was a sovereign state leading
to a presumption of primogeniture not
rebutted by the plaintiffs. In any event the
plaintiff has not discharged the burden of
proving that the properties were
coparcenary and that Kapurthala State
was different from the other 510 Hindu
rulers of that time. From Bhag Singh‟s
time the succession via Fatesh Singh has
been to the eldest son notwithstanding the
dispute raised by Amar Singh qua the
succession of Nihal Singh. Nihal Singh
attempted to make a will by dividing the
property into 3 portions for inheritance
by his 3 sons Randhir, BIkram and Suchet.
The will of Nihal Singh was annulled again
leading to succession of the eldest son
Randhir Singh. Randhir Singh was also
succeeded by his eldest son Kharak Singh
and consequently the averred leanings of
his younger brother Harnam Singh
towards christianity and the date of such
leaning is of no avail as the eldest son
Kharak Singh without any dispute did
succeed Randhir Singh. Kharak Singh was
succeeded by Jagajit Singh the only son.
Jagajit Singh was succeeded by the eldest
son Paramjit to the exclusion of the other
two sons Ajit and Karamjit without any
dispute and eventually the defendant No.1
succeeded Paramjit Singh. Thus it would
be seen that barring the dispute raised by
Amar Singh and the making of the will by
Nihal Singh which was annulled by the
British, succession had always been by the
RFA(OS) 23/2004 Page 17 of 100
eldest son to the exclusion of the other
sons and such successions have been
accepted by the other siblings. The test of
antiquity not being satisfied by the custom
pleaded by the defendant No.1 cannot
extend to having the custom existing
beyond the reign of the Kapurthala State.
Since I have held the Kapurthala state to
be a sovereign state the tests of customs
qua zamindari which is subject to the law
of the land cannot be applied. As per the
position of law laid down in 1994 Supp. 1
SCC 734 para 65, Pratap Singh Vs. Sarojini
Devi for a sovereign state primogeniture
was presumed to apply, whereas for
Zaminidari they were to be established by
custom. Thus even by the presumption
which flowed from the finding of the
existence of a sovereign state in
Kapurthala, primogeniture existed by
virtue of such presumption. The version of
the history of Kapurthala state given in the
book Rajas of Punjab by Lepal H. Griffin
(Ex. PW 1/51), cannot be given more
primacy then the Administration Reports
which have been termed to be a valuable
piece of evidence in para 8 of the judgment
of the Hon‟ble Supreme court in Jagat
Singh vs. State of Gurajat and ors. reported
as 1968 (1) SCWR 347. Assuming the two
versions i.e. that as per Ex. PW 1/51 the
book on Rajas of Punjab and the
Administration Report, differ this court has
no option but to accept the statements
made in the Administration Report Ex. X-
22 to X-27 and not the version given in
Ex.PW 1/51 which no doubt at page 550
supports the statement of the plaintiff
that it was the Governor General who on a
visit to Kapurthala created Nihal Singh as a
Raja. From Ex. X-22 for the year 1867-68
which described Ranbir Singh as a Raja
governed by primogeniture upto Ex. X-27
for the year 1917-18 which described
Jagajit Singh as Maharaja. It is clear that
Kapurthala was a sovereign state governed
by primogeniture. The custom of
primogeniture had been followed even
prior to Nihal Singh in the case of his father
Fatesh Singh. I am also satisfied that the
evidence and texts produced by the
defendant No.1 showed that the custom of
primogeniture in general had an origin as
ancient as the founding of the Kapurthala
State and was not imposed by the British
RFA(OS) 23/2004 Page 18 of 100
as contended though not proved by the
plaintiffs. At best Ex.PW 1/51
demonstrates that Nihal singh was
conferred the title of Raja by the Governor
General. In my view this also does not
detract from the plea of the plaintiff that
Nihal Singh‟s predecessors were Rajas and
succession had even then been according
to primogeniture. Even if it assumed that
the British titled Nihal Singh as a Raja does
not prove that Nihal Singh was not already
a Raja tracing his descent from his
ancestors who were also rulers according
to the custom of primogeniture.
104. Having examined the factual matrix
and having come to the conclusion that the
family custom of primogeniture stood
established in the family of Defendant No.1
Sukhjit Singh, it would be necessary to
examine the legal principles enshrined in
judicial pronouncements including those of
the Supreme Court. This would be
necessary because the dispute between
the parties is to be determined in the light
of the post merger position in law,
particularly, in view of the enactment of
the Hindu Succession Act, 1956.
105. Impartibility is an attribute attaching
to property which derogates against the
normal rule of devolution by survivorship
amongst coparceners in the case of joint
family property. A partition cannot be
claimed in respect of such property.
Impartibility is maintained by following
rules such as primogeniture or
ultimogeniture. Impartibility and,
consequently, the precise rule that is
followed primogeniture, ultimogeniture, or
the like are essentially matters of custom.
In Shiba Prasad v. Prayag Kumari: AIR 1932
PC 216 which is the leading case on
impartibility, the Privy Council held that
[p.222]:-
"Impartibility is essentially a creature of
custom."
And, if a confirmation was at all
required, the Supreme Court, in K.K.Y. Varu
& Ors. v. S.K.Y. Varu & Ors reported as
(1969) 3 SCC 281, clearly held that
[p.296]:-
RFA(OS) 23/2004 Page 19 of 100
"The law regarding the nature and
incidents of impartible estate is now well
settled. Impartibility is essentially a
creature of custom."
106. Impartibility of an estate, if not
established by custom, can only be claimed
on the basis of some specific statutory
provision. In the present case, it has been
contended on behalf of the defendant No.1
that the suit properties were impartible (a)
because of custom as prevailing in the
ruling family of the erstwhile princely state
of Kapurthala and, (b) because of Article
XIV of the instrument of accession dated
20th August, 1948 read with the provisions
of Section 5 (ii) of the Hindu Succession
Act, 1956. On the other hand, the plaintiffs
contend that no such customs of
impartibility/primogeniture existed and, in
any event, Section 4 of Section 5(ii) of the
said were not applicable.
112. Clearly, for an estate to be
covered under Section 5(ii) of the Hindu
Succession Act, 1956, it is essential that
the covenant or agreement or statute must
by its terms and by its own force declare
that the estate would descend to a single
heir. In the present case, Article XIV of the
Instrument of Accession merely kept
"alive" the custom (without indicating what
that custom was) and that too only with
regard to succession to the "gaddi" of the
State. This article by its terms or by its
own force does not declare that any estate
would descend to a single heir.
Consequently, a custom sanctioning the
rule of primogeniture entailing impartibility
of the suit properties, would not be saved
by the provisions of section 5(ii) of the said
Act.
113. As a result, by virtue of section 4
of the said Act, to operate the custom
relating to impartible estates and
primogeniture would cease to operate and
would stand abrogated. However, such
custom would not cease ipso facto upon
the coming into operation of the said Act in
1956, but whenever succession opened out
for the first time after the commencement
of the act in 1956. This is clarified by the
Supreme Court in the case of Revathinnal
Balagopal Varma (supra) as under [para
19]:-
RFA(OS) 23/2004 Page 20 of 100
"In other words, while the Act may have
immediate impact on some matters such
as, for e.g. that covered by Section 14 of
the Act, its impact in matters of succession
is different. There the Act only provides
that, in the case of any person dying after
the commencement of the Act, succession
to him will be governed not by customary
law but only by the provisions of the Act."
The aforesaid position of law laid
down by the Hon‟ble Supreme Court has a
material bearing on the decision of the
present suit.
121. Clearly, then, the factum of
recognition of Defendant no.1 as the
successor to the "gaddi" of the erstwhile
state of Kapurthala has no effect
whatsoever on the manner and mode of
succession to the private and personal
properties of late Maharaja Paramjit Singh,
which must depend upon the personal the
personal law of succession (in this case,
Hindu law).
133. In view of my findings that the
Mussorie estate is private and personal and
not HUF co parcenary property, such
property also passed from Jagatjit Singh,
defendant No.1 to Paramjit Singh and from
Paramjit Singh to Sukhjit Singh in
accordance with proved custom of
primogeniture and is not accordingly liable
to be partitioned.
Mr. Arun Mohan, learned Senior
counsel, for defendant No.1 had stated that
under law defendant No.1 is/was liable to
provide reasonable maintenance in
accordance with primogeniture to his wife
and sons."
16. The finding in respect of granting partly relief in favour
of appellant by passing the preliminary decree qua exhibit D-1 and
PW-1/1 have been arrived in the impugned judgment on the basis
of finding arrived in paras 103 & 130 which reads as under:
"103. In this respect the defendant No.1 in
his evidence deposed that some of the
capital was placed in the hands of children
to case the impact of the estate duty upon
the possible demise of defendant No.1. He
RFA(OS) 23/2004 Page 21 of 100
had also clarified that no other property
except those mentioned in Ex. PW1/1 & Ex.
DA would constitute HUF properties. The
remaining properties referred to in clause 9
have been explained on the basis that it
was to ensure the survival of HUF qua such
properties and its continuance as a
stepping stone for further throwing in or
accretion of the other assets. Significantly
the defendant has deposed that even after
the partitions effected by Deeds Ex.PW1/1
& PW1/2 tax returns were filed by
defendant No.1 both as an individual and
as a Karta of the joint Hindu Family. In my
view, the above factors of individual and
Joint Family returns after the two partitions
by virtue of Ex PW1/1 and Ex PW1/2 and
indeed the assessment of the Defendant
No.1 as an individual under the Wealth Tax
and Income Tax proceedings establish that
the property was not coparcenary as
claimed by the plaintiffs demonstrate that
the HUF was created for a limited extent
and for a specific purpose of tax
management and would only operate qua
these 2 Exhibits and the other properties
not covered by the two deeds continued to
remain impartible. Thus the defendant
No.1 is bound by the two deeds Ex.PW1/1 &
Ex. PW1/2 (Ex.DA) and cannot wriggle out
of the effect of such declaration.
Furthermore the plaintiff No.3 was unable
to sustain her plea that she had
contributed certain properties to the
coparcenary claimed by her as she was not
able to establish any source of independent
funds and had only been able to prove her
ownership of one half of the property at 30
Sunder Nagar and certain TISCO shares.
130. Therefore, since the defendant
No.1 had voluntarily made a declaration by
virtue of Ex. PW 1/1 dated 26th March, 1976
and Ex. DA dated 11th March, 1975 to the
effect that properties enumerated in the
said declaration were joint Hindu family
property, the defendant No.1 cannot avoid
the effect of such declaration and is bound
by it. Therefore, the plaintiffs are entitled
to a preliminary decree of partition in
respect of the properties enumerated in
Ex. PW.PW1/1 and Ex. D.A."
RFA(OS) 23/2004 Page 22 of 100
17. The crux of main case of the Respondent No. 1 is as
under:
i. Kapurthala was a Princely State. The Ruler was a
sovereign. His Constitutional position was the same as
that of the other 510 Hindu Rulers of that era.
ii. There was never any joint Hindu family / coparcenery.
Further, there was never any partition.
iii. For succession, the rule of Primogeniture prevailed in the
family, by virtue whereof, the eldest son succeeded to
the entire property and others were granted only
maintenance.
iv. For a sovereign Ruler, this is what the law also
presumes. There is no Mitakshara Survivorship and no
Mitakshara Succession.
v. Maharaja Jagatjit Singh ascended the Gaddi of
Kapurthala in 1877, and ruled the 630 square miles of
this Princely State as its Sovereign Ruler.
vi. In 1948, he ceded the State, and retained for himself
some immovable and movable properties.
vii. The lapse of paramountcy [15.08.1947], Merger of the
State [20.08.1948], or the ushering in of the Constitution
[26.01.1950], did not create any coparcenary.
viii. On 19.06.1949 Maharaja Jagatjit Singh died leaving him
surviving three sons and two widows. By reason of will
X-8 otherwise by means of Primogeniture and thereby
everything was succeeded to by Maharaja Paramjit
RFA(OS) 23/2004 Page 23 of 100
Singh. Maintenance allowances were given to the
youngers, and continued to be given until 1972.
ix. Maharaja Paramjit Singh died on 19.07.1955, whereupon
Respodennt No.1 succeeded to the property again by
Will Ex. D-11 and /or otherwise by means of
Primogeniture in any case whereof the respondent no. 1
became the absolute owner of the properties.
18. Undisputedly, in between 15th August, 1947 and 20th
August, 1948 the Kapurthala state was merged in the PAPSU by
virtue of a covenant signed by the emperors of different states. In
that respect Maharaja Jagatjit Singh was sovereign ruler. The
question which requires consideration before this court is as to
what was the nature of the properties held by Maharaja Jagatjit
Singh during his lifetime. It cannot be denied that after Maharaja
Jagatjit Singh became an ordinary citizen of this country he
became subject to the laws of this country and the question that
remains to be determined is as to whether on his demise on
19.06.1949 his succession was to be governed by which law.
19. In the present case we have to decide as to whether the
properties in question are co-parcenary properties or not. It is also
necessary to decide whether the Rule of Primogeniture governed
Hindu Rulers and applied to the Kapurthala.
HISTORY OF KAPURTHALA
20. The former Princely State of Kapurthala lay in the
Jullundur Doab tract of the Punjab, bounded in the North by the
River Beas and in the South, by the River Sutluj. The area of
RFA(OS) 23/2004 Page 24 of 100
Kapurthala State was 630 sq. miles. A Taluqdari (Zamindari) of
730 sq miles, an area in Oudh (U.P.) was also owned by the Rulers
of Kapurthala.
21. The Genealogical Table of the Kapurthala family in the
usual form is on the Court record as Ex.D-2.
22. We may add here that the historical facts, there is really
no dispute by the parties though the appellants maintain that it
was always a joint Hindu family and the karta was designated as a
Ruler.
23. Baba Jassa Singh Sahib (1718-1772-1783)
The real founder of the Kapurthala Dynasty is said to be
Baba Jassa Singh Sahib. As a young man, Jassa Singh Sahib lived
for several years in Delhi with his mother under the care of Mata
Sundari, the widow of Guru Govind Singh the Tenth Sikh Guru. On
Jassa Singh‟s departure from Delhi, to return to the Punjab. By
1761, Baba Jassa Singh was undoubtedly the chief leader among
the Sikhs in North of the Sutluj. In 1764, Baba Jassa Singh led the
Sikh Army during the sack of Sirhind. Baba Jassa Singh contributed
his entire share of Rs.9,00,000/- from the sack of Sirhind for the
rebuilding of the Golden Temple at Amritsar.
24. In 1780 he conquered Kapurthala and made it his
headquarters. Baba Jassa Singh died in 1783. He had neither a
son nor a nephew, and Sardar Bhag Singh, a second cousin then in
his thirty-sixth year, succeeded to the estate. There was a
daughter married to Sardar Mohr Singh of Fatehabad, but a
daughter and a daughter‟s son were not reckoned among the legal
heirs.
RFA(OS) 23/2004 Page 25 of 100
Sardar Bhag Singh (1747-1783-1801)
24.1 Sardar Bhag Singh who succeeded as the Chief of
Kapurthala, consolidated his position in various expeditions in and
around the Doab. In 1796, Sardar Bhag Singh joined the Kanheyas,
then led by Sadda Kour, one of the remarkable women in Punjab
history and the mother-in-law of Maharaja Ranjit Singh, in their
attack upon Sardar Jassa Singh Ramgharia, the old enemy of his
house, who had entrenched himself at Miani, but did not succeed
in defeating him. Sardar Bhag Singh died in 1801. He left behind
one son Sardar Fateh Singh.
Sardar Fateh Singh (1784-1801-1836)
24.2 Sardar Fateh Singh succeeded as the Third Ruler of
Kapurthala. His first act was to form an alliance, with Ranjit Singh,
who had just gained possession of Amritsar. The young Chiefs
exchanged turbans, and swore on the Granth Sahib to remain
friends for ever.
Sardar Fateh Singh died in October 1837. He left behind the
following:
Name Relation
i Rani Sada Kaur - Widow (first)
ii Rani Rattan Kaur - Widow (second)
iii Nihal Singh - Elder son
iv Amar Singh - Younger son
All the properties of the late Chief devolved upon and
were taken exclu-sive ownership and control of, by Sardar Nihal
Singh, the late Chief‟s elder son. As per the case of respondent
RFA(OS) 23/2004 Page 26 of 100
no.1 as per PW/1/51 and documents exhibited as D-61 to 64 the
succession therefore was as follows:
i Sardar Nihal Singh All the properties of the Chief as
also the Chiefship yielding about
Rs. 12,00,000/- annually.
ii Rani Sada Kaur Maintenance
iii Rani Rattan Kaur Maintenance
iv Kr Amar Singh Maintenance,
Raja Nihal Singh (1816-1836-1852)
24.3 In 1836, Raja Nihal Singh succeeded as the Fourth Ruler
of Kapurthala. In 1845 during the first Anglo-Sikh War, Sardar Nihal
Singh‟s troops sided with the Sikh Armies and fought against the
British at Aliwal and Budowal. As a result, after the defeat of the
Sikh Armies in 1846, Sardar Nihal Singh lost his Cis-Sutluj
territories as escheat to the victorious British Government. The
Jalandhar Doab Territories however, continued in clear sovereignty
with Sardar Nihal Singh. This severe loss ensured that in the
second Anglo-Sikh War of 1849-1850, the Kapurthala troops took
the field in support of the British. Raja Nihal Singh remained aloof
from politics and administered his territories well. Raja Nihal Singh
died in 1852. He left behind the following persons:
Name Relation
i Rani Pratap Kaur - Widow (first)
ii Rani Mai Hiran - Widow (second)
iii Randhir Singh - First son
iv Bikrama Singh - Second son
RFA(OS) 23/2004 Page 27 of 100
v Suchet Singh - Third son
vi Bibi Kaur - Daughter
All the properties of the Ruler, were taken exclusive
ownership and control of by Raja Randhir Singh, to the exclusion of
his younger brothers and the surviving wives. Consequently, the
succession in the Kapurthala family was as follows:-
i) Raja Randhir Singh The rulership, the entire State,
yielding something in excess of
Rs.6,00,000 per annum as revenue.
Raja Randhir Singh also succeeded
exclusively to all the personal
properties of the late Ruler.
ii) Rani Sada Kaur Nothing
iii) Rani Mai Hiran Nothing
iv) Kr Bikrama Singh Rs.60,000/- per annum, awarded as
a final settlement by the Secretary
of State for India in adjudication on
the Will of the late Raja Nihal
Singh.
v) Kr Suchet Singh As above
vi) Daughter Was married to the Sardar of
Nikandpur.
Raja Randhir Singh (1831-1852-1870)
24.4 In 1852, Raja Randhir Singh succeeded his father as the
Fifth Ruler of Kapurthala. In 1857 Raja Randhir Singh rendered
distinguished personal service, both in the Punjab and in Oudh, at
RFA(OS) 23/2004 Page 28 of 100
the head of his troops. Raja Randhir Singh died in 1870. He left
behind the following persons:
Relation Name
i Elder son - Kharak Singh (born 1849)
ii Second son - Harnam Singh (born 1851)
iii Daughter - (born 1851)
The entire State of Kapurthala and all the properties of
the late Ruler were taken exclusive ownership and control of by
Raja Kharrak Singh. The succession was as under :
i Raja Kharak Singh The entire Raj yielding an annual
revenue of about Rs.7 lakhs and all
the personal properties of the late
Ruler, including the Taluqdari in
Oudh yielding Rs.12,00,000 per
annum as income.
ii Kr Harnam Singh Maintenance allowance.
Raja Kharak Singh (1849-1870-1877)
24.5 Raja Kharak Singh (the Sixth Ruler)‟s reign was
uneventful. A male child (Maharaja Jagatjit Singh) was born on
24.11.1872.Raja Kharrak Singh died in 1877. He left behind the
following persons:
Name Relation
i Rani Anand Kaur - Widow (died 1897)
ii Jagatjit Singh - Son (born 1872)
iii Harnam Singh - younger brother
He left behind the following properties :
RFA(OS) 23/2004 Page 29 of 100
a Immovable property in Kapurthala and Oudh, such as
the Jalao Khana Palace and the Elysee Palace in
Kapurthala.
b The Oudh Taluqdari.
c Movable property and valuables.
The resultant succession was:
i Maharaja Jagatjit Singh The entire State of
Kapurthala then yielding an annual
revenue of about Rs.14 lakhs plus
all properties of the Ruler,
including personal effects as also
the Taluqdari of Oudh which
yielded an additional revenue of
Rupees 12 lakhs
ii Rani Anand Kaur Nothing, except Maintenance.
iii Kr Harnam Singh Maintenance allowance of
Rs.36,000/- eventually or
approximately only 1/70th of the
patrimony.
Maharaja Jagatjit Singh (1872-1877-1949)
24.6 Despite the two grand-uncles and the two uncles, the
five-year-old Jagatjit Singh succeeded as the Seventh Ruler of
Kapurthala. He assumed full ruling powers on 24.11.1890.
The builder of modern day Kapurthala, who ruled the
State for almost six decades. As a progressive secular Ruler, he
built for his Muslim population, which comprised the majority of
the State‟s population prior to 1948, the finest place of worship in
RFA(OS) 23/2004 Page 30 of 100
the State - a Mosque built on the pattern of the Koutoubia Mosque
in Marrakesh, Morocco. During the reign of Maharaja Jagatjit
Singh, some of the most well-known architectural structures were
erected in and outside the State. These comprised:
a Prominent buildings existing in 1872
i Jalao Khana or Old Palace.
ii Panj Mandir
iii Randhir College
b Buildings built or purchased after 1872
i Elysee Palace
ii Villa Palace
iii Chateau Mussoorie (St Helens Cottage already
existed when the property was bought by Maharaja
Jagatjit Singh in 1885. Source of this information is
from the National Archives of India Foreign and
Political Department, Intl October 1885, Proceedings
107-109, Part B, and the attested copy of the Sale
Deed submitted to Court by respondent no.-1)
iv Jagatjit Palace Kapurthala
v State Gurudwara and Mai Maharani Mandir
vi State Gurudwara Shri Ber Sahib at Sultanpur Lodi
As per the case of respondent No.1 Maharaja Jagatjit
Singh also gifted from time to time - as a maintenance grant - to
his younger sons, State Officials and others, lands, cash awards or
properties by means of „Hiba Namas‟ or gift deeds, or „Sanad
Sultani‟s also known as Royal gifts or Orders.
RFA(OS) 23/2004 Page 31 of 100
In the 1920s, Maharaja Jagatjit Singh thrice represented
India at the League of Nations at Geneva.
15.08.1947 - 20.08.1948
24.7 On 14 / 15.08.1947 the British paramountcy lapsed. One
year later, on 5.05.1948, the Merger Agreement was signed by
Maharaja Jagatjit Singh for ceding / merging Kapurthala State into
the Union of PEPSU. The Merger Agreement, also known as the
Covenant, is Ex.D-23. The Ruler‟s sovereignty came to an end.
On 19.06.1949, Maharaja Jagatjit Singh died. He left behind the
following among others:
Name Relation
i Maharani Lachhmi (Bushair) Senior Widow
ii Maharani Prem Kaur Second Widow
iii Tikka Paramjit Singh Eldest son (born 1892)
iv M K Karamjit Singh Second son (born 1896)
v M K Ajit Singh Third son (born 1910)
24.8 As per case of the respondent no. 1 at this point of time
(19.06.1949, in fact 20.08.1948 onwards), Maharaja Jagatjit Singh
was no longer the owner of the State of Kapurthala. He was the
owner of only what he had retained for himself at the time of the
Merger on 20.08.1948. These came to be called „Private
Properties‟.
24.9 The question is of the character of the holding prior, and
subsequent, to 19.06.1949: (1) whether as joint Hindu family
(coparcenary) or absolute; and (2) the mode of succession
Mitakshara Survivorship / Succession, or Will / Primogeniture. The
respondent no.1 submits that on account of the Will of Maharaja
RFA(OS) 23/2004 Page 32 of 100
Jagatjit Singh (X-8), and alter-natively, the Rule of Primogeniture,
Maharaja Paramjit Singh succeeded exclusively. Position with
regard to the matter of fact succession was:
Maharaja Paramjit Singh The Palaces, the Oudh Taluqdari and
(eldest son) all personal cash balances, jewellery,
valuables and other properties of the
late Ruler. Worth almost Rs.70 lakhs.
Maharani Lachhmi
@ Bushair (widow)
Maharani Prem Kaur
(widow)
M.K. Rani Mahijit
No interest in land or properties
(widowed daughter-in-
or other assets at all.
law)
Only maintenance allowances of
M. K. Karamjit Singh
varying amounts, all totalling
(younger son)
approximately Rs.1,08,000/- per
M. K. Ajit Singh
annum or 1/60th of the patrimony.
(youngest son)
R. K. Arun Singh
(grandson)
R. K. Martand Singh
(grandson)
Sukhjit Singh (grandson) Nothing
Maharaja Paramjit Singh (1892-1949-1955)
RFA(OS) 23/2004 Page 33 of 100
24.10 On 19.06.1949, Maharaja Paramjit Singh took over as
the Eighth Ruler of Kapurthala. Six years later, on 19.07.1955,
Maharaja Paramjit Singh passed away.
He left behind the following persons:
Name Relation
i Rajmata Lachhmi (Bushair) ...(widow) Dowager step mother
ii Rajmata Prem Kaur ...(widow) Dowager step mother
iii Maharani Brinda ... First wife (widow)
iv Maharani Stella ... Third wife (widow)
v Tikka Sukhjit Singh Son (born 1934)
vi M K Indira Devi ... Daughter
vii M K Sushila Devi ... Daughter
viii M K Ourmila ... Daughter
ix M K Asha Kaur ... Daughter
Brigadier Sukhjit Singh/respondent No.1 (1934-1955-???)
24.11 On 19.06.1955, 21-year-old 2nd Lt. Sukhjit Singh
succeeded as the Ninth Ruler of Kapurthala. Sukhjit Singh
continued with the Indian army, and fought the 1965 and 1971
wars with Pakistan on the battlefront which earned him the combat
award of a Maha Vir Chakra (MVC). As per the case of the
respondent no.1, he in order to pay the Estate Duty, had sold
Jagatjit Palace and Elysee Palace and with the balance sale
proceeds property B-90A GK-1 and a commercial flat were
purchased.
25. An order was issued by the President on 6.09.1970 „De-
recognising‟ respondent no.1 as the Ruler of Kapurthala. The
RFA(OS) 23/2004 Page 34 of 100
Parliament enacted the Constitution (26th Amendment) Act 1971.
Articles 291 and 362 were repealed; a new Article 363A was
added, and the definition of a „Ruler‟ in Clause (22) of Article 366
was reworded. It came into effect on 29.12.1971. Thereafter, the
Rulers of Indian States (Abolition of Privileges) Act [54 of 1972]
was also passed.
26. Before dealing with the rival submissions of the parties,
we have to see as to what is the meaning of rule of primogeniture and
under which circumstances the rules of primogeniture applies and
is different with law of succession and its presumption.
Primogeniture
„Primogeniture‟ is a rule of succession. It is applicable to
impartible estates. It was applicable to Rulers and Monarchs. By
this rule, the eldest son or the first born son succeeds to the
property of the last holder to the exclusion of his younger brothers.
According to the ordinary rule of succession, all the sons of the
father are entitled to equal shares in his estate. The rule of
succession by which the first born son succeeds to the entire
estate, to the exclusion of the other sons, is called Primogeniture.
It denotes a rule of succession by which the eldest among the
heirs, male or female, succeeds to the estate to the exclusion of
other heirs. This is simple primogeniture in contradistinction to
lineal male primogeniture. Lineal Male Primogeniture means a
continual descent to the eldest male member of the eldest branch.
If a person died, leaving him surviving a grand-son by a
predeceased eldest son and a younger son, the latter would
succeed if simple Primogeniture prevailed but the former would
RFA(OS) 23/2004 Page 35 of 100
succeed, if succession was governed by the rule of Lineal Male
Primogeniture.
27. The argument of the Appellants are that there was a
distinction between public and private property of a sovereign
Ruler and that the private property was held as a karta of a
coparcenary.
28. The Supreme Court in Civil Appeal No.534 of 1983,
Revathinnal Balagopala Varma Vs. His Highness Shri
Padmanabhadasa Varma (Since deceased) and others, and
Civil Appeal No.535 of 1983. Indira Bayi and Others Vs. His
Highness Sri Padamanabhadasa Varma (since deceased),
decided on November 28, 1991. It is held by the Apex Court that
one incidence of the property held by a sovereign was that there
was really no distinction between the public or State properties
on the one hand and private properties of the sovereign on the
other; and the other incidence was that no one could be a co
owner with the sovereign in the properties held by him. The
Supreme Court also emphasized that when they are speaking of
the property of an absolute sovereign there is no pretence of
drawing a distinction, the whole of it belong to him as sovereign
and he may dispose of it for public or private purpose in whatever
manner he may think. The Apex Court in fact approved a
decision of the Gujarat High Court in D.S. Meramwala Bhayala
Vs. Ba Shri Amarba Jethsurbhai (1968) Gujarat Law Reporter
Vol. 9 page 609. It is useful to quote some relevant portion of the
said judgment which have ample bearing on the point arising in
this case :
"There is, therefore, no doubt that the Khari-
RFA(OS) 23/2004 Page 36 of 100
Bagasara Estate was a sovereign Estate and the
Chief of the Khari-Bagasara Estate for the time
being was a sovereign ruler within his own
territories subject to the paramountcy of the
British Crown prior to 15th August, 1947 and
completely independent after that date.
If the Khari-Bagasara Estate was a sovereign
Estate, it is difficult to see how the ordinary
incidents of ancestral co-parcenary property
could be applied to that Estate. The
characteristic feature of the ancestral
coparcenary property is that members of the
family acquire an interest in the property by
birth or adoption and by virtue of such interest
they can claim four rights : (1) the right of
partition; (2) the right to restrain alienation by
the head of the family except for necessity; (3)
the right of maintenance; and (4) the right of
survivorship. It is obvious from the nature of a
sovereign Estate that there can be no interest
by birth or adoption in such Estate and Therese
rights which are the necessary consequence of
community of interest cannot exist. The Chief
of a sovereign Estate would hold the Estate by
virtue of municipal power and not by virtue of
municipal law. He would not be subject to
municipal law; he would in fact be the fountain
head of municipal law. The municipal law cannot
determine or control the scope and extent of his
interest in the estate or impose any limitations
on his powers in relation to the Estate. 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 on 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 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 these 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
RFA(OS) 23/2004 Page 37 of 100
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 or adoption......
........Now it was not disputed on behalf of
Meramvala that if prior to merger the Estate did
not partake of the character of ancestral
coparcenary property, the properties left with
Bhayawala under the merger agreement would
not be ancestral coparcenary properties; if
Meramvala did not have any interest in the
Estate prior to merger, he would have no
interest in the properties which remained with
Bhayavala unde the merger agreement. It was
not the case of Meramvala and it could not be
the case since the merger agreement would be
an act of State that as a result of the merger
agreement any interest was acquired by him in
the properties held by Bhayavala. Bhayavala
was, therefore, the full owner of the properties
held by him and was competent to dispose of
the same by will.....................
......The argument of Mr. I.M. Nanavati, however,
was that the effect of applicability of the rule of
primogeniture by the parmount power was that
the rights of coparceners under the ordinary
Hindu law were eclipsed : these rights were not
destroyed but they remained dormant and on
the lapse of paramountcy, the shadow of the
eclipse being removed, the rights sprang into full
force and effect. This argument is wholly
unsustainable on principle....................
From this judgment, it is clear that the characteristics
of ancestral coparcenary property: (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, are not applicable to the properties owned by the
sovereign ruler and that the son does not acquire any interest in
such properties either by birth or adoption and even after the
state of the sovereign ruler has merged with India, the character
RFA(OS) 23/2004 Page 38 of 100
of his properties does not change. In the case of Revathinnnal
Balagopala Varma the Supreme Court referred to all the earlier
decisions which have been referred and concluded that there is
no distinction between the private and public properties owned
by the sovereign ruler and the incidents of ancestral or
coparcenary properties are not at all applicable to such properties
held by the sovereign ruler. It is also held in this judgment that
the mode of succession does not make any difference. As soon
as one sovereign ruler succeeds another, all the incidents of
sovereignty are then possessed by the successor sovereign ruler.
In the said case also, the sovereign before surrendering his
sovereignty entered into a covenant gave an option to the
sovereign ruler to furnish a list of such properties which he
wanted to retain as personal properties.
29. The distinction between „public‟ and „private‟ property,
reference was also made by respondent No.1 to the judgments in
1994 Supp. 1 SCC 735 Nabha case and the other judgments
referred to therein. See Advocate General of Bombay vs
Amerchund (1830) Vol 1 Knapp‟s PC 329 (=12 ER 340,‟45),
Vishnu Pratap Singh vs State of M.P. 1990 (Supp) SCC 43,
White Paper on Indian States (para 157), Meramwala case Vol.9
(1968) G.L.R. Gujarat 609 and Travancore case 1993 Sup-1 SCC
233 wherein the argument was rejected by the court particularly
in Nabha case, where it has been ruled that it shall continue as
law under Article 372 of the Constitution of India.
30. The custom of Primogeniture for Zamindars evolved as
an exception to the general customs of Mitakshara survivorship
and Mitakshara succession. However, the Zamindars did not have
RFA(OS) 23/2004 Page 39 of 100
any sovereign power i.e., power to lay down the law. The Princes
wielded sovereign powers and, therefore, they (all the Princes but
with a rare exception) had applied the Rule of Primogeniture which
then had taken the shape as the law promulgated by them as a
sovereign Ruler.
31. The Rulers of Kapurthala (1782 to 20.08.1948) were
sovereign Rulers is a part of Constitutional and legal history of
India. Before the learned Trial Judge, the Appellants argued that
the Kapurthala family were only Zamindars and not Sovereign
Rulers, but the learned Single Judge found them to be Sovereign
Rulers. The finding of the Trial Judge that they were Sovereign
Rulers has not been seriously assailed in appeal. In fact, in the
arguments before the Division Bench, this contention was given up
by the learned counsel for the appellants.
32. Undisputedly, Maharaja Paramjit Singh was recognised
by the Government of Dominion of India as the Ruler of
Kapurthala, and thereafter, on Maharaja Paramjit Singh‟s death
(19.07.1955), the Government of India recognised respondent no.1
as the Ruler under the Constitution of India by Notification.
respondent no.1 continued to be so recognised till (along with
500+ other Rulers) he was de-recognised by the 26th Constitutional
Amendment in 1971-72.
33. Being a sovereign ruler, no incidence of coparcenary or
Joint Hindu family could be applied to the properties held by him
and the junior (sons), had no right by birth. The judgment of
Bhagwati, J. in Meramwala's case, Vol.9 (1968) I.L.R. Gujarat
966 = Vol.9 (1968) Gujarat Law Reporter 609 and the
judgment of a Division Bench of the Kerala High Court in
RFA(OS) 23/2004 Page 40 of 100
Travancore case 1983 Kerala Law Times 408. In Thakore Vinay
Singh's [Mohanpur] case, 1988 Sup SCC 133 = AIR 1988 SC 247
the Supreme Court held that there was no coparcenary, and in
Vishnu Pratap Singh vs State of Madhya Pradesh 1990 Sup
SCC 43 wherein it was held that the Ruler was the absolute owner
of all properties. The Supreme Court judgment 1993 Sup-1 SCC
233 in appeal from the Kerala High Court, and in the Nabha case
1994 Supp-1 SCC 734 = JT 1993 (Supp) SC 288 are conclusive on
this aspect.
34. Going back into Indian History, long before the British
Rule, the best example of authority on the rule of Primogeniture,
which the respondent No.1 cites before this Court, is none other
than the decision that Lord Ram would succeed to the kingdom of
Ayodhya after the demise of Raja Dashrath in total exclusion of his
younger brothers Bharat, Lakshman and Shatrughan. Lord Rama
was the eldest son or as the legalistic term goes, the first born.
Since this was a Ruling Family; they were ruling the Kingdom of
Ayodhya; there was no coparcenery, there was no partition and
there was no suit.
35. It appears from the material produced by the appellants
on record that „Maintenance Grants‟ were being given by the Ruler
to his younger brothers. Similarly, an „Allowance‟ was given to the
elder son and to the younger sons. If the quantum of the
allowance is to be examined, the elder son was the recipient of a
larger amount than the younger sons, or even his uncles (Ruler‟s
brothers). This again indicates Primogeniture: See Chattar Singh
vs Roshan Singh; AIR 1946 Nagpur 277.
RFA(OS) 23/2004 Page 41 of 100
36. Some of the Princely States, prior to their merger into
the Dominion of India, had enacted formal legislation in the name
of the Ruler. These „Succession Acts‟, specifically stated that the
Rule of Succession appli-cable to their respective families, would
be the Rule of Primogeniture.
37. The following is the list of some of the cases came to the
Court after 1950, matters relating to Primogeniture in the Princely
States:
i) Darbar Shri Vira Vala Surag Vala Vadia vs State of
Saurashtra; (AIR 1967 SC 346 [Vadia]
1 .. .. there was in Kathiawad a State of the name of
Vadia, succession to the Rulership of which was by
primogeniture.
ii) In Prabir Kumar Bhanja Deo vs State of Orissa (ILR 1969
(Orissa/Cuttack Series) 794,' the question before the DB was
relating to Keonjhar a Princely State in Orissa. After stating
the genealogical table and noting that Primogeniture
prevailed, and also noting that "Pachchis Sawal" was a
document of high authority relating to customs prevailing in
these States and had stood the field for over 150 years,
returned a finding
It will thus be apparent from the aforesaid two questions
and answers that in Keonjhar State, where succession
was governed by the custom of lineal primogeniture, the
junior members of the Raj family were not entitled to any
interest in the Rajgi (the Raj State). They had only a right
of maintenance. ... ...
RFA(OS) 23/2004 Page 42 of 100
iii) M.K. Ravinderbir Singh vs M.K. Gajbir Singh CO
61/1960 Punjab & Haryana High Court. This judgment,
though based on a compromise, is relevant as an instance of
the custom of Primogeniture being followed after the
commencement of the Constitution in respect of the property
left behind with the Ruler at the time of merger in 1948.
iv) This question has been dealt by the Supreme Court judgment
in the Privy Purses case, where Mitter J was pleased to
observe: [1971 SC page 530,‟96 = 1971-1 SCC 85,‟219]
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 the body.
v) Thakore Vinayasinhji AIR Vs. Kumar Shri Natwar Sinjhi-
1988 SC 247
It is not disputed that the Raj Estate, of which the
deceased appellant was the Ruler, is impartible and that
the rule of primogeniture, which is one of the essential
characteristics of an impartible estate, is also applicable.
vi) R.K.Rajindra Singh vs State of Himachal Pradesh (1990)
4 SCC 320 [Bushahr]
3 .. The plaintiff‟s father Raja Padam Singh having died in
April 1947, his elder son Tikka Vir Bhadra Singh born to
his first wife Shanta Devi succeeded to the Gaddi under
the rule of primogeniture ....
vii) State of Punjab vs Brig Sukhjit Singh 1993-3 SCC 459
[Kapurthala]
RFA(OS) 23/2004 Page 43 of 100
11(2).. .. It‟s ownership and possession in the hands of
each succeeding heir apparent by primogeniture was
demised perpetually ...
11(3) .. property settled on a title holder for keeping
the family name alive perpetually and vesting it in each
succeeding heir apparent by the rule of primogeniture.
viii) In H.H.Maharaja Pratap Singh vs H.H.Maharani Sarojini
Devi, 1994 Supp -1 SCC 734 = JT 1993 (Supp) SC 244 the
Supreme Court says: [Nabha]
Though impartibility and primogeniture, in relation to
zamindari estates or other impartible estates are to be
established by custom, in the case of a sovereign Ruler,
they are presumed to exist.
observed that Ruler in question was governed by customary
law.
38. It further appears from the work entitled Annals and
Antiquities of Rajasthan, (Oxford University Press, 1920. Reported
in 1978 by M N Publishers, New Delhi - 110048) Colonel James
Todd, a former Political Agent to the Western Rajputana States,
says:
... The law of Primogeniture prevails in all Rajpoot
sovereignties; the rare instances in which it has been set
aside, are only exceptions to the rule.
39. Presumption, and how it operates
It is evident that „sovereigns‟ what has passed as law
into the law of the land, is that primogeniture and not Mitakshara,
RFA(OS) 23/2004 Page 44 of 100
applies. Presumption makes the fundamental basis for Evaluation
of Evidence. The weighment thereof has to take place in that light.
i) In Baboo Gunesh Dutt Singh vs Maharaja Moheshur
Singh, Vol. VI [1854-7] Moore‟s Indian Appeals 164) the
Privy Council had held:
We apprehend that the principle upon which we are
about to pro-ceed in this case admits of no doubt or
question whatever. 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
son, what are divisible amongst all. With respect to a
Raj as a Principality, the general rule is otherwise and
must be so. It is a Sovereignty, a Principality, a
subordinate Sovereignty and Principality no doubt,
which, in its very nature excludes the idea of division in
the sense in which that term is used in the present case.
....
ii) In the Ramnad case,( ILR Vol XXIV [1901] Madras 613,‟
35 a Division Bench of the Madras High Court relied
upon the character of the estate as a Raj or Principality
as one of the factors for coming to the conclusion that
the estate was impartible, and went on further to hold
that once the estate was held to be impartible,
primogeniture applied as a consequence.
iii) The Privy Council judgment in Martand Rao vs Malhar
Rao, AIR 1928 PC 10 in so far as „sovereignty‟ or
RFA(OS) 23/2004 Page 45 of 100
„principality‟ is concerned, far from sounding a
discordant note, reiterates the presumption of
impartibility. Their Lordships were unable to accept that
the Amgaon Estate was in the nature of a Raj, and
therefore impartible. They, after holding that Amgaon
estate was not „sovereign‟, ruled:
... are such that they could not possibly be classed as
appertaining to the category of sovereign or semi-
sovereign chiefs whose possessions were necessarily
impartible.
iv) And, in Kochunni vs Kuttanunni, AIR 1948 PC 47,‟ 50
(after holding the State in dispute to be sovereign), on the
question of presumption, laid down:
... there could, therefore, be no question of his
proving, as the High Court has required him to do, that
the properties in his possession were impartible.
40. In Salig Ram vs Maya Devi, AIR 1955 SC 266,‟68 Col 2;
and in Jai Kaur vs Sher Singh, AIR 1960 SC 1118,‟21 the
Supreme Court held Rattigan‟s work to be a book of unquestioned
authority. The Rule of Primogeniture only prevails in families of
ruling chiefs or Jagirdars whose ancestors were ruling chiefs.
i) In Mohd. Yusuf vs Mohd. Abdullah AIR 1944 Lahore 117 a
Bench of the Lahore High Court had held that, the onus shifts
on to that party who challenges recitals in the manual of
customary law, to establish that what has been recited in the
manual, is incorrect.
RFA(OS) 23/2004 Page 46 of 100
41. As discussed above, Primogeniture, as a rule for
succession, applied to the Rulers, the Zamindars etc. While
examining, we have to first ask ourselves the question: Whether
we are dealing with a sovereign or a non-sovereign estate?
42. The contention of the appellants is that no proper plea
has been raised with regard to any such custom applicable to
Maharaja Jagatjit Singh or the ruling family of Kapurthala.
According to him Mitakshara Hindu Law was applicable and it does
not matter if Maharaja Paramjit Singh was recognized as a ruler by
the President of India. In view of the terms of covenant, Maharaja
Jagatjit Singh was not subject to the Mitakshara Hindu Law at the
time of his death as Maharaja Paramjit Singh inherited the estate
of Maharaja Jagatjit Singh when the said estate became ancestral
in his hand. The family of Kapurthala was always governed by
Mitakshara School of Hindu Law All sikhs Fall within the definition
of Hindu therefore, are govenred by the said law. According to
the appellants there was a time when the ancestors of the
Kapurthala family were not the rulers in any form and as such
were governed by the Mitakshara law. The existence of a custom
is a pure question of fact which is to be decided on the basis of
evidence proved on record and not on the basis of presumption,
it has to be determined pertaining to such a custom of the ruling
family of Kapurthala ruler referring to other states and reference
of text and decisions. In the present case as per the case of
appellants, no custom prevailing for the family of Kapurthala. The
rule of primogeniture and impericable estate and the Gaddi of
Kapurthala was imposed on the family by the British in the
RFA(OS) 23/2004 Page 47 of 100
exercise of their political power and it cannot be equated with the
family custom as recognised by a Hindu Law.
43. As regard the Mitakhshara joint Hindu family is
concerned, it is averred by the appellants that it is a creature of
law and arose out of a relationship known as spinda relationship
which is confined to birth, marriage or adoption and comprising
of a body consisting of persons, male or female. The coparcenary
is also a creature of law and cannot be created by an act of the
parties. The moment two coparceners come into existence in a
jonit Hindu family, a coparcenors in the Joint Hindu family at any
point of time, the joint property would belong to coparcenry and
would be known as co-parcenary property.
44. It is submitted by the appellant that Maharaja Paramjit
Singh inherited the property of Jagatjit Singh on his death on 19 th
June, 1949 and the said property was obviously ancestral in the
hands of Paramajit Singh and similarly respondent No.1 inherited
the property of Paramajit Singh on his death on 19 th July, 1955 and
such property was ancestral in the hands of respondent No.1.
While some of the suit properties remained in the same form in
which they were inherited by defendant No.1, the other suit
properties were acquired form the nucleus of those
properties/funds, which were inherited by defendant No.1. The
suit property does not comprise of any self-acquired property by
respondent No.1.
45. It is also the case of the appellants that on 20th
February, 1950 on the marriage of respondent No.1 with the
appellant No.3, a joint Hindu family comprising of respondent No.1
RFA(OS) 23/2004 Page 48 of 100
and the original appellant No.3 came into existence by operation
of law and respondent No.1 was the karta of the said properties.
On the birth of appellant No.1 on 27th December, 1961 a
coparcenary consisting of respondent No.1 and the appellant No.1
came into existence by operation of law with respondent no.1 as
the karta of that coparcenary. Consequently, all the suit
properties became co parcenary properties by operation of law
and appellant No.1 required interest in those properties by birth
upon his conception. Same was the case upon the birth of
original plaintiff No.2 born on 10 th May, 1966 who got added to the
above co-parcenary. On 28th May, 1990 Survajit Singh, son of
appellant No.1 also became a member of the said co-parcenary
upon his birth.
46. The Hindu customs recognised by the Courts are - (1)
local, (2) class, and (3) family customs. The 500 and odd Hindu
Rulers would certainly form a „class‟. (See Mohan Lal vs Sawai
Man Singh. AIR 1962 SC 73,‟5 = 1962-1 SCR 702)
i) In Shimbhu Nath vs Gayan Chand, ILR XVI [1894]
Allahabad 379 a Bench of the Allahabad High Court held that
where a custom alleged to be followed by any particular class
of people is in dispute, judicial decisions in which such
custom has been recognised as the custom of the class in
question are good evidence of the existence of such custom.
ii) In Mohesh Chunder Dhal vs Satrughan Dhal, Vol. 29
[1902] Indian Appeals 62 the Privy Council held:
"To prove custom of lineal primogeniture as the rule of
succession:-
RFA(OS) 23/2004 Page 49 of 100
The High Court relied on the oral evidence, which was
very fully discussed in the Court of first instance. There
was abundant evidence to show that it was well
understood in the family, and in families belonging to
the same group, that no descendant of a younger
branch could take until all the elder branches were
exhausted. But there again no witness was able to point
to an actual instance in which, in cases of collateral
relationship, the rule had either been followed or
departed from. The evidence, of course, would have
been much stronger if the witnesses had been able to
cite instances confirming their view. But still the
evidence is not to be disregarded. The High Court relied
principally on certain decrees relating to disputes in
families, belonging to the same group, in which it was
decided that the rule of succession was lineal
primogeniture. These decrees do not, of course, bind
the parties to the present suit, but they go a long way to
shew the prevalence of the custom among families
having a com- mon origin, and settled in the same part
of the country. Lastly, the High Court relied on the
precedence conferred or marked by the titles of honour
given to the sons of the reigning Raja in order of
seniority, a precedence which would naturally be
attached to the lines of descent traced from them."
iii) In Kunhanbi vs Kalanthar, XXVII [1914] Madras Law
Journal 163,‟63 a bench of the Madras High Court held:
"When the fact of the existence of a custom amongst
a particular class of people has been repeatedly
proved in the courts, the courts have power to take
judicial notice of it."
iv) In the Pittapur case AIR 1918 PC 81 the Privy Council was
concerned with custom governing a non-sovereign
Zamindari. The Judicial Committee relied upon judgments
relating to other Zamindaris and held:
"When a custom or usage, whether in regard to a tenure
or a contract or a family right, is repeatedly brought to
the notice of a the Courts of a country, the Courts may
hold that custom or usage to be introduced into the law
without the necessity of proof in each individual case. It
becomes in the end truly a matter of process and
pleading. Analogy may be found in instances in the law
Merchant or in certain customs in copyhold tenure. In
the matter in hand their Lordships do not doubt that the
right of sons to maintenance in an impartible Zamindari
RFA(OS) 23/2004 Page 50 of 100
has been so often recognised that it would not be
necessary to prove the custom in each case."
47. There were, in the pre-1950 era, thousands of
Zamindaris in India. The basic difference is that they did not
enjoy sovereign ruling powers and were merely land owners
with the right to collect land revenue. Many of these impartible
estates the succession to which was also governed by
Primogeniture.
48. The holder of such impartible estates (non-sovereign
ones) may not always be an absolute owner and it could well be a
family property, yet the one who succeeded to the impartible
estate by Primogeniture had the right to transfer inter vivos or by
a Will. See V T S T Thevar vs V T S S Pandia Thevar AIR 1965 SC
1730.
(i) In the Travancore case [Revathinnal Balagopala Varma
vs His Highness Shri Padmanabha Dasa Bala Rama Varma],
1993 Sup-1 SCC 233 a three-Judge Bench of the Supreme
Court observed:
... ... It is suggested that the observations in that
case run counter to the catena of decisions in the
case of impartible estates relied on by Sri Nambiar
but this is not correct. If the estate dealt with in that
case had been an ordinary impartible estate, the
decision should perhaps been quite different. But
once the distinction is borne in mind that the estate
was a sovereign estate and its chief a sovereign
ruler, the real import of the decision becomes clear.
It establishes beyond doubt that the acquisitions by
a sovereign ruler cannot be claimed to be joint
family property.
(ii) In D.S. Meramwala Bhayala v. Ba Shri Amarba
Jethsurbhai ILR (1968) 9 Gujarat 966 it was held:
RFA(OS) 23/2004 Page 51 of 100
(paras are excerpted) Against a judgment of the then
Supreme Court of Bombay an appeal was taken up
before the Privy Council and the judgment of the Privy
Council was reported in Elphinstone v. Bedreechund 12
E R 340 = 4 MIA Supp 50. ...........
This being the law with regard to the powers of a
sovereign and the legal status of the properties held by
him there can be no manner of doubt that till the
sovereignty of the Maharaja of Travancore had
ceased he was entitled to treat and use the properties
under his sovereignty in any manner he liked and his
will in this regard was supreme. ...
If someone asserts that to a particular property held by
a sovereign the legal incidents of sovereignty do not
apply, it will have to be pleaded and established by him
that the said property was held by the sovereign not as
a sovereign but in some other capacity. In the instant
case apart from asserting that the properties in suit
belonged to a joint family and respondent 1 even
though a sovereign ruler, held them as the head of the
family to which the property belonged, the appellant
has neither specifically pleaded nor produced any
convincing evidence in support of such an assertion. It
has been urged on behalf of the appellants that only
the eldest male offspring of the Attingal Ranis could, by
custom, be the ruler and all the heirs of the Ranis who
constituted joint Hindu family would be entitled to a
share in the properties of the Ranis and the properties
in suit were held by respondent 1 as head of the tarwad
even though impartible in his hands. This plea has
been repelled by the trial court as well as by the High
Court and nothing convincing has been brought to our
notice on the basis of which the presumption canvassed
on behalf of the appellant could be drawn and the
findings of the courts below reversed. ...
The properties in suit having passed on from one sovereign
to the other came to be ultimately held by respondent 1 in
that capacity. Neither any principle nor authority nor even
any grant etc. has been brought to our notice on the basis
of which it could be held that in the properties of the State
held by a sovereign an interest was created or came into
being in favour of the family to which the sovereign
belonged.
49. The law which applied to the former Rulers was different
than that applied to the non-sovereign States. The distinction in
application was again explained by the Supreme Court in Nabha
case Pratap Singh vs Sarojini Devi 1994-Supp(1) SCC 735,‟49
para 65 in the following words:
RFA(OS) 23/2004 Page 52 of 100
"Though impartibility and primogeniture, in
relation to zamindari estates or other impartible
estates are to be established by custom, in the
case of a sovereign Ruler, they are presumed to
exist."
50. A table depicting the difference between the Ruler of an
Indian State on the one side and the holder of an impartible
Zamindari on the other.
Ruler of an Indian State The holder of a Zamindari
1. The Ruler (Sovereign) 1. The holder of a Zamindari,
would be the absolute as distinct from the Ruler of
owner of the State and an Indian State, may hold it
its properties. None as an impartible estate. If ;it
else would have any is ancestral, he holds it on
interest or share in his behalf of the family, and
property. although there would be no
right of partition, his interest
will not be that of an
absolute owner, which a
sovereign ruler was. It
would have been family
property and of the type
understood by the series of
decisions in that regard.
2. Primogeniture would be 2. Primogeniture would not,
presumed to apply as a repeat not, be Presumed to
Rule for succession. apply, but will have to be
proved as a Custom.
RFA(OS) 23/2004 Page 53 of 100
3. He would have been
signatory to a Covenant /
agreement ceding his
State first (15.8. 1947)
to the Dominion of India
on three subjects,
external affairs, com-
munication & defence.
And thereafter - by the He would not have been a
Covenant or the Merger party to any of the items 3
Agreement ceding the to 5 in the first column. This
administration of his establishes the difference in
State to the Union or status between a former
other Govern-ment prior Ruler on the one side and a
to 26.1.1950. Zamindari on the other. This
4. After 26.1.1950, he in turn, makes all the
would be re-cognised as difference to the applicable
a Ruler of a former law.
Indian State by the
President of India under
Article 366 of the
Constitution.
5. He would be receiving
an ann-ual privy purse
for the amount fixed by
3 to 5
the Ministry of States.
6. On his death, succession 6. If the he dies after
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to his estate 17.6.1956, succession to his
(properties) would be estate shall not be by
covered by the first part primogeniture. It will be as
of the exception under per Section 8 of Hindu
Section 5(ii) and Succession Act.
therefore not affected
by the 1956 Act. If he
dies after 17.6.1956, it
would make no dif-
ference to the
succession which will
still be by
primogeniture.
7. He would be De- 7. Since he was never recog-
recognised as a Ruler by nised as a Ruler, there is no
the 26th amendment. question of „Derecognition‟.
51. Numerous documents were filed in the trial court by the
parties. As recorded in the impugned judgment the parties had
confined to limited documents only. The documents relied upon
by the parties in the trial court and discussed in the impugned
judgment which have a bearing on the cardinal issue of
primogeniture and its applicability to the State of Kapurthala, the
same are referred as under :
I. The appellant mainly relied upon the following Exhibits :
(i) exhibit PW 1/51 is a book entitled as "Rajas of the
Punjab" which is relied upon by the appellant inter alia to
demonstrate that Harnam Singh one of the Rajas of Kapurthala
RFA(OS) 23/2004 Page 55 of 100
had converted to Christianity and imposition of primogeniture by
the British Paramountcy.
(ii) the appellants have also relied upon the order of 11 th
August, 1948 passed by Jagatjit Singh which declared that the
Mussoorie Estate was his private and personal property and
would descend to his heirs as their private and personal
property.
(iii) family settlements marked as X-8 and D-11 were also
relied upon by the appellant to submit that in this family
settlement reference was to HUF.
II. The respondents have relied upon the following
documents :
(a) D-61 is a document dated 14 th July, 1837 which shows a
jagir of Rs.27,000/- per annum given by Raja Nihal Singh to Kr.
Amar Singh, the younger brother by way of maintenance. This
demonstrated that Umar Singh who was described as Koer
accepted only the maintenance from the Raja and laid no claim to
the Gaddi and the property of the State of Kapurthala.
(b) D-62 is a similar document on behalf of Koonwar Amar
Singh seeking issue of payment of expenses from his elder
brother Sardar Nihal Singh Bahadur. This letter clearly records
the allegiance and submission of Amar Singh to Nihal Singh.
(c) D-63 is a letter dated 19th September, 1837 from
Maharaja Ranjit Singh to his son directing him to make over the
estate of yielding Rs.30000/- per annum to Kr. Amar Singh, his
younger brother, for maintenance. This also records that Umar
Singh will thereafter have no further concern with Ranjit Singh.
This letter also demonstrated the pivotal position of the elder son
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lending to the exclusion of the other siblings.
(d) Ex. D-64 is a translated letter dated 24 th March, 1840
written by the Sher Singh brother of Maharaja Sher Singh to Sardar
Nihal Singh of Kapurthala regarding the complaint of Amir Singh
is respect of the enjoyment of his jagir. This letter also recorded a
final settlement by which Nihal Singh was asked to make over the
jagir worth Rs.30,000/- for the subsistence of Koer Amar Singh.
This letter also demonstrated the primacy of the elder brother.
(e) D-23 is the merger agreement by which the rulers of
Faridkot, Jind, Kapurthala, Malerkotla, Nabha, Patiala, Kalsin and
Nalhagarh formed into Patiala and East Punjab States Union.
(f) D-1 is the letter/order dated 11 th August, 1948 of
Maharaja Jagatjit Singh declaring that the share of Mussoorie
estate comprises of the private and personal property of Jagatjit
Singh and devolves on the heirs and successors of Maharaja
Jagatjit Singh as their private and personal property.
(g) Ex.D-17 is the Succession Certificate proceedings
before the Sub Judge, First Class under the Indian Succession Act
dated 4.2.1956 where Major Sardar Kirpal Singh, the Private
Secretary to Maharaja Sukhjit Singh deposed that on 10 th July,
1955 in Mussoorie, Maharaja Paramjit Singh executed a Will
(Ex.PA) in favour of Maharaja Sukhjit Singh, the then Tikka Sukhjit
Singh. He deposed to the then soundness of mind of the maker of
the Will and attestation of Shri Shanti Sagar. He also deposed that
the laws of primogeniture applied to the ruling family of
Kapurthala.
(h) Ex.D-13 and D-15 is the application and the evidence of
Major Kirpal Singh which record that Maharaja Jagatjit Singh was
RFA(OS) 23/2004 Page 57 of 100
succeeded by Maharaja Paramjit Singh being his elder son and
only son succeeded the father and others were entitled only to
allowances. He also deposed that Maharaja Sukhjit Singh was the
only heir of Mharaja Paramjit Singh after his death in July, 1955.
The application for succession certificate averred that the law of
primogeniture applied to the family of Sardar Jagatjit Singh of
Kapurthala.
(i) Ex. X-22 to X-27 are the Adminsitrative Reports from
1867-68 to 1917-18 demonstrating that primogeniture invariably
prevailed in Kapurthala apart from the other Hindu states of
Punjab.
(j) A perusal of the Ex.D-22 (Memo of Indian States) shows
that Kapurthala family has been indicated as a family which
follows primogeniture in the said Administrative Reports.
References are to be found to the name of Sh. Randhir Singh for
the year 1667-68, Kharag Singh for the year 1874-75, Jagatjit
Singh for the year 1882-83 and for Jagatjit Singh again for 1892-
93. These contemporaneous documents clearly indicate that
primogeniture was noted as prevalent in the Administrative
Reports in respect of Estate of Kapurthala. It is also indicated in
the administrative report of the 1910-11 that the male heir of
Jagatjit Singh was Paramjit Singh. Similar notation was also made
for the year 1917-18.
(k) Ex. D-22 is the Memorandum of Indian States published
by the then Government of India and the relevant portion of the
said document in relation to Kapurthala reads as follows :
"4. His Highness has four surviving sons, the
Heir Apparent, Tikka Raja Paramjit Singh (born
on the 16th May, 1892), Major Maharaj Kumar
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Amarjit Singh (born1893), Maharaj Kumar
Karamjit Singh (born 1895) and Maharaj Kumar
Ajit Singh (born 1907)...."
"He was made a C.I.E. in 1935. His Highness
has been permitted to call his heir apparent
the "Tikka Raja" instead of "Tikka Sahib. A son
and heir was born to the Tikka Raja in
October, 1934, and was named Rajkumr
Sukhjit Singh."
The defendant No.1‟s counsel sought to rely upon the
said statement to show that the Government of India also
officially regarded defendant No.1 as the heir apparent thus
demonstrating the existence of primogeniture.
(l) Ex. D-59 is the deed "HIBA NAMA" is a gift registered on
9th February, 1924 by Maharaja Jagatjit Singh to his sons younger
to Paramjit Singh, Mahait Kuamr, Major Mahijet Singh, Mahait
Kumar Karmjit and Maharaj Kumar Ajit Singh. This gift deed
describes Paramjit Singh Vali Ahad, i.e. proclaimed successor.
(m) Ex. D-6 is the writing of plaintiff No.3 which according to
the defendant No.1 acknowledged primogeniture and reads as
under :
"Moncisur R. Axleroud
Director,
Societe General (Sogegarde)
4 Avenue Raymond Poincare, Paris 16
France
Dear Sir,
I write to inform you that my husband,
Maharaja Sukhjit Singh of Kapurthala, will
personally bring you this letter by hand.
This is to authorize you, on presentation of
this letter, to hand over to Maharaj Sukhjit Singh
of Kapurthala, all his jewellery and valuables,
lying with the Societe General (Sogegarde) for
safe custody, in our joint names, details of which
are attached separate.
All these items in your safe custody in our
joint names, are the exclusive and personal
property of Maharaja Sukhjit Singh of Kapurthala,
having been inherited by him from his later
Father, the late Maharaja Paramjit Singh of
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Kapurthala who died in 1955 and who
bequeathed his entire estate in India and
th
abroad by a will dated 10 July, 1955, to
Maharaja Sukhjit Singh of Kapurthala. This will
was probated in India England and France,
entirely in Maharaja Sukhjit Singh‟s favour.
Being a serving officer in the Indian Army, on
active services, only as a precaution, has this
arrangement for the safe custody of his personal
valuables, in his absence, been made by me and
my name added jointly to his for the safe
custody of his jewellery and valuables, which will
continue to remain as always, his exclusive
personal property fully taxed in his sole hands.
Yours faithfully,
Sd/-
(GITA DEVI)
Maharani of Kapurthala"
According to the respondent No.1‟s counsel this letter
of the plaintiff No.3 clearly contains the admission of the
appellant No.3 that the entire estate of Kapurthala was
inherited by the respondent No.1
(n) Ex. D-37 is the certificate given by the Ministry of States,
Government of India dated 8 th July, 1949 certifying that upon the
death of the Maharajs of Kapurthala, Paramjit Singh succeeded to
the Gaddi as the son and the heir and assumed full powers as the
ruler an was entitled to all funds, shares, government securities
and other properties held by various banks and concerns as held
by his late father Maharaja Jagajit Singh in the dominion of India.
(o) Exh. D-9 is the succession certificate in favour of
Maharaja Paramjit Singh in respect of the estate of the deceased
Maharaja Jagatjit Singh.
(p) Exh. D-14 is the statement of Dewan Pyare Lal, Advocate
dated 6.2.1965 which indicated that Maharaja Paramjit Singh
inherited the entire estate of Kapurthala upon the death of
Maharaja Jagatjit Singh and that in the family of Maharaja Sahib
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only the eldest son becomes the ruler.
(q) Exh. D-12 is the judgment dated 5 th November, 1965 by
Senior Sub Judge. The said order records that Paramajit Singh
succeeded to the estate of Kapurthala upon the death of Maharaja
Jagatjit Singh on 19th June, 1949 on the basis of right of
primogeniture and upon the death of Maharaja Paramajit Singh
on the basis of succession certificate obtained by Maharaja Sukhjit
Singh, issued notice to the general public as per the publication in
Tribune. Significantly this was granted after notice to the
younger sons of Jagatjit Singh i.e. Karamjit Singh and Ajit Singh.
There was no resistance to the application. The succession
certificate was granted in favour of defendant No.1 Sukhjit Singh.
(r) Exh. D-16 is the succession certificate under Section
372 of Indian Succession Act granted in favour of defendant No.1,
Sukhjit Singh in respect of assets of Maharaja Jagatjit Singh
Bahadur who died on 19th June, 1949.
(s) Exh. D-27 is the estate duty assessment order dated
30th August, 1961 which shows that the property owned by
Maharaja Paramajit Singh was owned in an individual capacity and
the estate duty was charged as an absolute estate passing to
absolute successor and not a successor of interest in coparcenary
as provided by Section 34 (1)(c) of the Estate Duty Act 1953.
(t)(i) X-22- Table LB-2(vi) for the year 1867-68, relating to
Raja Randhir Singh, in which a column exists for showing whether
the family follows primogeniture. Kapurthala is shown as so
following.
(t)(ii) X-23-Table No.6 for the year 1874-75 relating to Raja
Kharak Singh, excerpted only for Kapurthala, with a similar
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column on primogeniture as given in (i) above, again stating that
the family follows primogeniture.
(t)(iii) X-24-Relating to Maharaja Jagatjit Singh. Item No.5 of
the Table for the year 1882-83, excerpted only for Kapurthala as
given in (ii) above. The column shows that the family follows
primogeniture.
(t)(iv) X-25 - Again relating to Maharaja Jagatjit Singh. Item 5
of the table for the year 1892-93, is similar to (iii) above, with the
column once again showing that the family follows primogeniture.
(t)(v) X-26 - This is an extract of Item No.5 for the year 1910-
11, pertaining to Maharaja Jagatjit Singh. The column in this
extract now reads as „Name and Age of Male Heir‟ under which is
given the name of „Paramjit Singh, age 19 years (1910)‟.
(t)(vi) X-27 - This again, is an extract of Item No.5 for the year
1917-18 pertaining to Maharaja Jagatjit Singh. Once again the
column for the year „Name and Age of Male Heir‟ shows Paramjit
Singh, age 26 years.
(t)(vii) Exh. X-1 is the settlement with Maharani Stella widow of
Maharaja Paramjit Singh dated 19 th April, 1962 which describes the
defendant No.1 as His Highness of Maharaja Sukhjit Singh of
Kapurthala. The settlement granted a payment of Rs.64,000/- to
Maharani Stella plus other sums of money which led to the
abandonment of the suit filed by Maharani Stella in France.
The counsel for the respondent No.1 submitted that if
the property was coparcenary as per the appellants contention,
then Maharani Stella would have had life interest in the estate on
19th July, 1955 which would have enlarged under Section 14 (1) of
the Hindu Succession Act to absolute interest which would then
RFA(OS) 23/2004 Page 62 of 100
have been 1/3rd of the estate and the fact that she settled only for
continued maintenance shows that Kapurthala Estate was not a
joint family property.
(u) Ex.D-35 is the letter of M/s Khanna and Annadhanam,
Chartered Accountant dated 16 th August, 1962 giving the view of
Shri Vishwanath Shastri on primogeniture applying to defendant
No.2. Of similar effect is Ex. D-34 which is the letter of the said
chartered accountant dated 1 st May, 1977 stating that the
property had devolved under the Wills and could not be HUF.
(v) PW 1/1 and DA are the family settlements relied upon by
the plaintiff showing assets of the HUF properties. The case of the
learned counsel for the respondent is that at best only the specific
assets described in the aforesaid documents can be treated as
HUF and no other assets can be imbued as HUF.
(w) Ex. D-36 is the letter of plaintiff dated 20 th evening
stating that she does not have any money.
(x) Ex. D-48 is a civil suit filed by the respondent No.1
seeking restoration of certain jewellery items and restraint order
against the defendant No.3, Smt. Geeta Devi. The plaint also
seeks a mandatory injunction in respect of the keys of a flat
located in the Kapurthala Villa, Mussoorie Chateau and the
matrimonial home at Greater Kailash, New Delhi.
(y) Ex. D-26 shows the respondent No.1‟s shares in the
companies.
(z) Ex. D-43 are the tax returns of respondent No.1 in
respect of FDRs. Strong reliance has been placed on the
contemporaneous documents X 18 to X 21, PW-4/59 to PW-4/62,
PW-4/72 to PW-4/78 by the counsel for the defendant No.1 which
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documents are the wealth tax returns which show that the
properties were described as individual properties by defendant
No.1 and not as co parcenary properties.
(aa) Ex. D-21 discloses the gazette notification dated 4 th
August, 1956 which reads as follows :
"Govt. of India
Minsitry of Home affairs
New Delhi-2, the 4th August 1956
ORDER
No.F3/19/55-Poll.III In pursuance of Clause (22)
of Article 365 of the Constitution of India the
President is hereby pleased to recognize His
Highness Maharaja Sukhjit Singh as the Ruler of
Kapurthala with effect from the 19 th July, 1955 in
succession of His late Highness Maharaja
Paramajit Singh.
Sd/- V. Viswanathan
Joint Secretary"
(bb) This notification clearly shows that the Govt. of India
recognized Sukhjit Singh defendant No.1 as the Ruler of Kapurthala
and successor of Late Mahajara Paramajit Singh. Similar is the
tenor of letter dated 10 th August, 1955 issued by the Joint
Secretary, Ministry of Home Affairs to the appellants.
(cc) Ex. X-8 is the Will of Maharaja Jagajit Singh the relevant
portion of which reads as follows :
"Tikka Raja paramajit Singh being my eldest
son will succeed to all my personal estates.
These estates have always devolved on the
eldest so according to the rule of
primogeniture. He will of course be
succeeded by his eldest son.
In order to remove all doubt I bequeath the
above properties to Tikka Raja paramjit Singh
and after him to his eldest son Maharaja
Kumar Sukhjit Singh.
(Sd) Jagatjit Singh
Kapurthala
16th January, 1949
MAHARAJA"
52. Now we shall also discuss the documents referred in
Paras 47 and 48 as well as other relevant documents produced by
the parties in the trial court and rival submissions of the parties.
53. So far it was Reports regarding Punjab States. To show
that Primo-geniture applied invariably to the former Rulers (from
all over India), apart from what the Supreme Court observed in the
Privy Purses case, AIR 1971 SC page 530,‟96 = 1971-1 SCC 85,‟219
photocopies of the Administration Reports from other parts of the
then Indian sub-continent were also submitted. These are:
1. Photocopy of the relevant pages from the
Report on the Administration of the Madras
Presidency during the year 1880-81. Cover page plus
3 pages.
2. Photocopy of the relevant pages from the
Report on the Administration of the Central Provinces
for the year 1892-93. Cover page plus 2 pages.
3. Photocopy of the relevant pages from the
Kathiawar Administration Report for 1899-1900.
Cover page plus 11 pages.
4. Copy of the relevant portion of the Report on
the Administration of the North West Provinces and
Oudh for the year 1900-01.
5. Copy of the relevant portion of the Report on
the Administration of the Central Provinces for the
year 1900-1901.
6. Copy of the relevant portion of the Report on
the Administration of the Madras Presidency for the
year 1899-1900.
7. Copy of the relevant portion of the Report on
the Administration of the Bombay Presidency for the
year 1900-1901.
54. The Meramvala Vol.9 (1968) I.L.R. Gujarat 966 = Vol.9
(1968) Gujarat Law Reporter 609 judgment also places reliance
on such Reports to hold that primogeniture applied to the
Princely State in question before that court. The Administration
Reports were prepared till about 1919. Thereafter, the official
annual publication was the Memoranda on the Indian States.
These Reports are by themselves enough to conclusively prove
that Primogeniture prevailed in Kapurthala. Yet, appellants
persisted with their contention- Kapurthala was always a joint
family with the karta being called the Maharaja.
55. Ex.D-22 is a photocopy of the cover page and pages 221
to 241 of the Memo for the year 1940, of which para 4 at page 231
is excerpted below:
4. His Highness has four surviving sons, the Heir-
Apparent, Tikka Raja Paramjit Singh (born on the 16th
May 1892), Major Maharaj Kumar Amarjit Singh (born
1893), Maharaj Kumar Karamjit Singh (born 1896), and
Maharaj Kumar Ajit Singh (born 1907). The second
son, Maharaj Kumar Mahijit Singh (born 1893), died in
April 1932. All His Highness‟s sons received their
education in England. Maharaj Kumar Amarjit Singh
was made an Honorary Captain in 1918, and Honorary
Major on the 18th January 1930. He served with the
Indian Corps in France and Flanders for about a year
during the Great War, and in 1928 was selected as
British Staff Officer to accompany General Gouraud,
Military Governor of Paris, during a three months‟ tour
in India. He was A.D.C. to His Excellency the
Commander-in-Chief. He was made a C.I.E. in 1935.
His Highness has been permitted to call his heir-
apparent the „Tikka Raja‟ instead of the „Tikka Sahib‟.
A son and heir was born to the Tikka Raja in October
1934, and was named Rajkumar Sukhjit Singh.
Two Memos of Indian States (1938 and 1940) in original
as also the original White Paper on Indian States were filed.
56. All official records noted Tikka Raja Paramjit Singh as the
Heir Apparent which shows prevalence of Primogeniture. The
entire body of official records, when referring to:
i. Paramjit Singh (born 1892 - died 19.07.1955);
ii. Mahijit Singh (born 1893 - died 1932);
iii . Amarjit Singh (born 1893 - died 1943);
iv . Karamjit Singh (born 1896 - died 1973); or
v. Ajit Singh (born 1910 - died 1982),
has always recorded Paramjit Singh (till 1949) as Tikka Raja and /
or Heir Apparent while his younger brothers were not given any
such status. Nowhere has he (Paramjit) been referred to without
either Tikka Raja or Heir Apparent. Similarly, nowhere has he been
referred to as only Waris (Heir) or as a „Maharajkumar‟.
57. After 19.07.1949, Paramjit Singh came to be recorded as
Maharaja while his brothers continued as Maharajkumar. None of
the other four brothers (only two survived 1949) have been refe-
rred to as Heir Apparent or Tikka Raja or other than simply
„Maharaj-kumar‟. So much so that post-19.07.1955 when 2nd Lt.
Sukhjit Singh came to be recorded as the „Maharaja of Kapurthala‟,
uncles Karamjit Singh and Ajit Singh continued to be referred to as
Maharajkumars.
58. It is held in many decisions that the grant of
maintenance shows that the property is not joint property.
Reliance is placed on the following passage from Raja Chattar
Singh vs Diwan Roshan Singh: AIR 1946 Nagpur 277
that the practice of granting allowance for maintenance
to junior members of the family indicates the impartible
nature of the estate and the existence of a custom of
succession by rule of primogeniture.
And also upon Meramwala Vol.9 (1968) I.L.R. Gujarat 966 =
Vol.9 (1968) Gujarat Law Reporter 609 case
Since the rule of primogeniture was applied to the estate
... therefore, during his lifetime made a grant called Kapal
Giras of village Khari in favour of Valeravala for his
maintenance. ... Or else the grant of maintenance in
favour of Valeravala would be entirely unnecessary and
inexplicable ...
The Supreme Court judgments in Raj Kumar Narsingh
Pratap Singh Deo vs State of Orissa, AIR 1964 SC 1793,‟99 Prabir
Kumar Bhanja Deo vs State of Orissa, ILR 1969 (Orissa / Cuttack
Series) 794,‟90 and also in the Vadia case, AIR 1967 SC 346 where
the terms „Primogeniture‟, „Heir Apparent‟, and „Maintenance‟, with
respect to a Princely State of Gujarat are recorded.
59. The evidence on the file re-garding the factum of the
payment of maintenance grants, to the junior members of the
Ruler‟s family in Kapurthala State.
a Translation of a letter dated 19 th September 1837 from
Maharaja Ranjit Singh addressed to S. Nihal Singh
asking the Sardar to make over to Kr. Amar Singh a
maintenance jagir of Rs.30,000/- per annum Ex.D-63.
b Translation of a letter dated 24 th March 1840 from
Maharaja Sher Singh of the Punjab to Sardar Nihal Singh
about the maintenance Jagir for Kr. Amar Singh Ex.D-64.
c Translation of the „Razeenama‟ deed between Kr. Amar
Singh, younger brother of Raja Nihal Singh dated 4 th July
1837, expressing gratitude for a maintenance jagir of
Rs.27,000/- per annum Ex.D-61.
d Translation of a Deed dated 22 Har, 1994 Vikrami,
executed by Kr. Amar Singh, accepting his maintenance
Ex.D-62.
e Gift Deed [Hiba Nama] is Ex.D-59
Gift Deed
60. Gift Deed [Hiba Nama] is Ex D-59. It is respectfully
submitted that it is relevant for two things: (1) Heir Apparent;
and (2) Maintenance.
i Waliahad means „heir apparent‟. This description was
conclusive of primogeniture.
ii This means maintenance allowances were already being
given in cash and as a supplement thereto, these lands
were being granted.
iii (line 6) This shows that the three sons (grantees) were
younger to the heir apparent and formed a different
class.
iv (line 6 end) Which means for the maintenance of the
future generations of the three Maharajkumars. This
again points towards primogeniture.
v (page 2 line 1) Indicates that a single heir would be
other than the three younger sons, who were the
beneficiaries under the grant. If primogeniture did not
prevail, and the younger sons were to succeed under
Mitakshara Law, then the whole purport of this
document and this sentence, falls.
If primogeniture had not applied, the Ruler would not
have so written. This document is signed by Tikka Raja Paramjit
Singh, who is described as: Tikka Raja Heir Apparent, Kapurthala
State.
1949 (and 1964) Succession documents
61. The 1949 „matter of fact Succession‟ on the death of
Maharaja Jagatjit Singh. This was based on Will X-8 /
Primogeniture. The 1950 proceedings and grant of Succession
Certificate dated 18.8.1950 Ex.D-9 to only one son, the eldest,
also shows Primogeniture. So also the grant of a subsequent
Certificate in 1965 Ex.D-16, where it was, also so stated, in the
petition and the judgment.
In 1964, Major Kirpal Singh appeared as a witness in
the Court of the Senior Sub Judge, Kapurthala in proceedings
relating to a supplementary Succession Certificate with regard to
the Estate of Maharaja Jagatjit Singh and his statement, in those
proceedings, which is given Exhibit D-15. The law of
Primogeniture applies to this ruling family. The two younger sons
of Maharaja Jagatjit Singh were noticed by the Court in the 1964
proceedings. There was a public notice as well.
62. 1955 Succession documents
Like with 1949, the 1955 „matter of fact Succession‟
(on the death of Maharaja Paramjit Singh) is a clincher when it
comes to deciding (and rejecting) the claim. This was based on
Will D-11 / Primogeniture. There is also the evidence of Major
Kirpal Singh, (since deceased) recorded by the Court at
Kapurthala in Succession Certificate proceedings before the
Court of Shri Hari Krishan Mehta, SJIC, Kapurthala. This Court file
has been summoned from Kapurthala and is on the record of this
hon‟ble High Court. The statement, Ex.D-17, is as under:
The law of Primogeniture applies to this Ruling Family.
The appellant no.3 was asked following questions in
cross-examination :
Qn. May I take it that all these persons succeeded to his
estate in equal shares ? (The question refers to the heirs of
Maharaja Paramjit Singh who died on 19th July 1955.)
Ans. No. They did not succeed to his estate in
equal shares.
Qn. Can you point out any document by which S.Partap
Singh and Raja Sir Daljit Singh partitioned out from the Kapurthala
family?
Ans. As far as I know, it was their father and their uncle who
had been given a certain amount, details of which can
be found in the book, Ex.PW1/51, which I have already
tendered in Court. I have not seen any other document
apart from the book which refers to certain documents.
I cannot refer to any book or document apart from Ex
PW1/51 which states about any partition between Raja
Randhir Singh, Kr Bikram Singh and Kr Suchet Singh. It
would be possible for me to refer to some other
documents which are in the possession of my husband
but as I have no access to them, it is not possible for me
to do so.
Qn. Can you refer to any document or passage in any book
in history on the Kapurthala family in which there may
be any mention of any properties of Raja Randhir Singh
going over to Harnam Singh ?
Ans. I have no access to any such document.
Qn. Is it your case that there was a family partition in the life
time of Maharaja Jagatjit Singh ?
Ans. My case is that there were partitions in the family even
before the life time of Maharaja Jagatjit Singh.
Qn. Can you refer to any document which might have
recorded any partition in the life time of Maharaja
Jagatjit Singh ?
Ans. As I have no access to any documents although they
may be in existence, I am unable to refer to these.
Qn. May I take it that there was never any partition between
the various persons that you have mentioned in answer
to previous question at any time prior to 15 August,
1947 ?
Ans. As I have stated already that they were all living
independently with their own properties, jagirs, moneys,
jewellery and were all receiving, including the grand
children, each allowances from Maharaja Jagatjit Singh
before 15th August, 1947.
Qn. May I take it that all the properties that you have
enumerated above devolved upon Maharaja Paramjit
Singh, Maharajkumar Karamjit Singh and Maharajkumar
Ajit Singh, the three surviving sons of Maharaja Jagatjit
Singh in equal shares on the death of Maharaja Jagatjit
Singh ?
Ans. As the surviving sons of Maharaja Jagatjit Singh had
already received during his lifetime the properties,
houses, movables, jewelleries and cash, remaining
properties were not divided between the three sons
alone but between different members of the family also.
For instance Maharajkumar Rani Mahijit the widow of
Maharajkumar Mahijit Singh, received Wycliffe in
Mussoorie and Maharaja Paramjit Singh also sold some
land in Fatehabad and gave her the money.
Maharajkumar Karamjit Singh who had also received
properties and valuables and moneys during the lifetime
of his father claimed and was given Rs 2,25,000/- by
Maharaja Paramjit Singh. Sunnyside was given to
Maharajkumar Karamjit Singh and St Helens Cottage in
Mussoorie was given to him to live for his lifetime. 3,
Mansingh Road, New Delhi was sold by Maharaja
Paramjit Singh. Villa in Kapurthala was given to
Maharani Brinda and the last surviving consort of
Maharaja Jagatjit Singh, Rani Bushair was given the
Elysee Palace to reside in for her life time.
Qn. May I take it that all these persons succeeded to his
estate in equal shares ? (The question refers to the heirs
of Maharaja Paramjit Singh who died on 19th July 1955.)
Ans. No. They did not succeed to his estate in equal shares.
Qn. Of all the various persons mentioned in the pedigree
table filed by you, Exhibit D/3, can you tell us of any
document by which partition amongst any of them might
have been effected at any time ?
Ans. As members of Hindu Undivided Family they did not
claim because they were always given some properties
and assets and were treated fairly. I have no access to
any documents showing a partition.
Qn. On 4th March 1981, you stated that "The Chiefs and
Jagirdars of Punjab were always Joint Hindu Family".
Can you refer to any document by which any partition
was effected at any time between any Chief or Jagirdar
of Punjab ?
Ans. I have no knowledge of any documents.
Qn. Can you refer to any passage in any books which refers
to there having been a partition amongst the families of
Chiefs and Jagirdars of Punjab at any time ?
Ans. No, I cannot.
Qn. Kindly state the year and the document by which the
property in Mussoorie, known as Wycliffe was given by
the late Maharaja Jagatjit Singh to the widow of his
second son, Maharajkumar Rani Mahijit Singh ?
Ans. I have no knowledge of any such document nor can I
give the year. I am only aware that the family of
Maharajkumar Rani Mahijit Singh is living in that house
uptil today.
Qn. Please give any reason why no member of the family
sought partition against Maharaja Paramjit Singh and
instead, put pressure through the Ministry of Home
Affairs as has been stated by you ?
Ans. I cannot give the reasons of others action. However, the
members of the family had received a very fair and just
portion during the life time of Maharaja Jagatjit Singh. At
the time of the demise of Maharaja Jagatjit Singh his last
surviving consort was very old and it would be
unthinkable for her to take any independent action. The
only member of the family who was able to voice a
protest on behalf of the others was Maharajkumar
Karamjit Singh and he did this very strongly and with the
approval and backing of the other members of the
family managed to claim and get some allowances which
they were receiving during the lifetime of Maharaja
Jagatjit Singh.
Qn. Can you tell any reason as to why when Maharaja
Paramjit Singh according to you was treating nobody
nicely, no member of the family claimed a partition of
the alleged Joint Hindu Family properties, i.e. the Villa
Kapurthala, Jagatjit Palace and Chateau Mussoorie etc.?
Ans. I have already stated that some members of the family
received a just portion during the lifetime of Maharaja
Jagatjit Singh, father of Maharaja Paramjit Singh. In fact,
Maharaja Paramjit Singh did not wish Maharajkumar Rani
Anar Devi, his sister-in-law, to have the property known
as Wycliffe in Mussoorie. After a brief court action he
was compelled to give it to her. He was also compelled
to give Maharajkumar Karamjit Singh Rs.2,25,000/-
before he agreed to sign the succession certificate. He
was also compelled to allow Maharajkumar Karamjit
Singh to have the property rights of St Helens Cottage in
Mussoorie. He was also compelled to allow Dowager
Maharani Bushair the right of residing in the Elysee
Palace in her life time. Some moneys were also given
separately to Maharajkumar Rani Anar Devi.
Maharajkumar Ajit Singh had been born from a Spanish
Rani who had separated from Maharaja Jagatjit Singh
many many years ago. He was brought up abroad and
hardly resided in India. He did not wish to be embroiled
in any unpleasantness and, therefore, after the house at
Mussoorie had been secured for her and the Cottage at
Mussoorie had been secured for Maharajkumar Karamjit
Singh and the house of Elysee Palace at Kapurthala had
been secured for the Dowager Maharani Bushair and the
maintenance allowances which they used to have during
the lifetime of Maharaja Jagatjit Singh had been secured
for them through the efforts of Maharajkumar Karamjit
Singh, there was nothing more in dispute. As the Head
of State recognised Maharaja Paramjit Singh as the next
Karta this matter had to be agreed to by the other
members of the family and this is what I meant when I
said that it was Maharajkumar Karamjit Singh who
signed the succession certificate. I have no idea where
the succession certificate which I have referred to was
signed by Maharajkumar Karamjit Singh.
Qn. I put it to you that the consent to succession certificate
that you are referring to was given in case No. 69
instituted on 23rd June, 1950, before Sub-Judge 1st Class
with special powers, Kapurthala ?
Ans I have no idea.
63. Appellants oral evidence
The Appellant‟s case, both in their pleadings and
evidence, is that the Kapurthala family was always a coparcenary.
Baba Jassa Singh was the first Karta and after the successive
incumbents to the „kartaship‟, the burden of managing the family
had fallen on the shoulders of Maharaja Jagatjit Singh who became
the karta in 1877. After his decease, the „kartaship‟ devolved on
S.Paramjit Singh and thereafter, on S.Sukhjit Singh.
The evidence recorded is as under:
Qn. May I take it that in 1945 there was no joint Hindu family
of which Maharaja Jagatjit Singh may have been a Karta
?
Ans. Maharaja Jagatjit Singh was a Karta of joint Hindu family
in 1945. The members of that family comprised of his
wives, his sons and children of his sons.
Qn. Please state whether according to you, the receipt of this
revenue (the revenue of the State of Kapurthala) was
individual property in the hands of Maharaja Jagatjit
Singh or ancestral property in the hands of Maharaja
Jagatjit Singh ?
Ans. Maharaja Jagatjit Singh was Karta of the family. This
revenue was a receipt of the family.
Qn. Please state whether according to you the receipt of the
income from the Avadh Jagir by Maharaja Jagatjit Singh
was his personal property or as Karta of any joint family
?
Ans. According to me, Maharaja Jagatjit Singh was Karta of
the family. The revenue from the Avadh Jagir was
received by him as Karta of the family.
Qn. Can you state if the word „Karta of the family‟ was used
in any document or book with reference to anybody in
the Kapurthala family during the period 1783 to 1955 ?
Ans. I have not read any book in the colloquial language and
most of the books that I have read with regard to our
family history have been written in English. The head of
the family has been referred to as the Chief or Sardar
which I expect is equivalent to Karta in Hindu Law.
Qn. Can you state about any document or any book or any
Government communique in which the Kapurthala family
or members thereof was at any time, i.e. between 1783
to 1955, referred to as, "Joint Hindu Family", or "Hindu
Undivided Family" ?
Ans. There may be some reference to this family in the book
Ex. PW1/51. On the other hand Baba Jassa Singh left no
son so a member of his family S. Bhag Singh succeeded
as Karta. He having only one son, S.Fateh Singh
received the title of Karta from his father, but I cannot
refer to any other book or document.
Unable to state when and how the coparcenary was formed ?
Qn. When was the joint family, of which you are seeking
partition, formed ?
Ans. In my opinion we were always a joint family.
Qn. Can you tell me the year ?
Ans. If my personal experience is being asked, I say, from the
date of my marriage.
Qn. May I take it that there was no joint family in Kapurthala
State prior to your marriage ?
Ans. There was always a joint family in Kapurthala State prior
to my marriage. According to me Maharaja Jagatjit Singh
was head of the joint family. I am seeking partition of
the same family. Raja Kharak Singh was father of
Maharaja Jagatjit Singh. According to me Raja Kharak
Singh was also head of Joint Hindu family. Before that
Raja Randhir Singh was head of the family. Before Raja
Randhir Singh, Raja Nihal Singh was head of the family.
Qn. On 3rd March, 1981 in your statement, you had stated
that on 20th July, 1955, defendant No 1 was Karta of the
family of which the other members on that day were the
two sisters of defendant No 1 and Maharani Brinda Devi
and Maharani Stella. Please state that this joint status
had existed for how many years without any interruption
to that date ?
Ans. I had stated that the founder of this family was Sadhu
Singh. He was not a Chief; he was not a Ruler neither
was he a conqueror. He was a simple man who founded
four villages in the vicinity of Lahore. He was a Majha
Sikh and he had four sons. He was Karta of his family. I
had mentioned in great detail the persons who became
Karta after him. I may add that Baba Jassa Singh who
for his personal integrity became not only Chief of the
Ahluwalia "Misal" acknowledged leader of the other Sikh
"Misals", neither was he a King or a Chief. He was, in
fact, a Jagirdar and until Kapurthala was taken by Baba
Jassa Singh, it was a Jagirdari of Rai Ibrahim. Sardar
Bhag Singh was the next Karta and Sardar Fateh Singh
followed him but Sardar Fateh Singh was, in fact, a
Jagirdar of the Court of Lahore and his very existence
depending upon the favour of the Court of Lahore. The
next Karta Raja Nihal Singh lost a great many of the
estate some of which were restored by the British. In
fact, it was the British who gave the title of Raja to our
family who were Jagirdars. The title of Maharaja was
bestowed by the British on Maharaja Jagatjit Singh, great
grandfather of our sons and Maharaja Jagatjit Singh was
Karta of this family and he made a declaration in which
he had listed his private properties. These properties
were acquired with the help of inherited ancestral
properties and by his declaration itself he made it quite
clear that these properties descend to Maharaja Paramjit
Singh as Karta and not as his exclusive individual
properties. Maharaja Paramjit Singh by his Will also
made it quite clear that he did not intend Maharaja
Sukhjit Singh to hold these properties as his personal
exclusive properties but these properties were to go to
him as Karta for the benefit of himself and the other
members of his family.
Qn. Can you give any reason why after the death of Raja
Nihal Singh, Raja Randhir Singh became the Ruler and
not Bikram Singh and Suchet Singh ?
Ans. The reason that I can give is that Raja Randhir Singh was
the eldest son of Raja Nihal Singh. It is correct that Raja
Randhir Singh had two sons, Raja Kharak Singh and Raja
Harnam Singh. Raja Kharak Singh became the ruler as
he was the eldest son.
64. Respondent's oral evidence
The Chief Secretary of Kapurthala State (at the time of
merger in 1948), Mohan Lal Puri, appeared as DW-4.
Qn. Can you state if the succession amongst the
Ruling Family of Kapurthala is governed by any custom,
if so, what is that custom ?
Ans. The ruling family of Kapurthala was
governed by the custom of the rule of Primogeniture.
The elder son succeeded to the throne and the
properties of the Ruler.
65. Dewan Pyare Lal, Advocate (who had been the counsel
of one of the sons of Maharaja Jagatjit Singh in the succession case
and also otherwise, familiar with the Ruler‟s family), appeared as
DW-2 and said:
Qn. Kindly state if you know as to whether the succession
amongst the Ruling Family of Kapurthala has been and is
governed by the rule of Primogeniture or not ?
Ans. The rule of Primogeniture governs the devolution of
succession in the Royal Family of Kapurthala.
66. Respondent No.1 had come in the witness box as DW-6
and stated:
The Rulers of Kapurthala have always been governed by
the law of Primogeniture. The nature of the properties
held by the Rulers of Kapurthala from time to time has
always been absolute individual impartible estate.
Among the Rulers of Kapurthala before 1975, there was
never any Hindu Undivided Family or any partition.
Late Maharaja Jagatjit Singh was my grandfather. He
was the Ruler of Kapurthala for over six decades until his
demise in 1949.
67. That Maharaja Jagatjit Singh was a sovereign ruler and
his sovereignty extended over 630 square miles of territory known
as the Princely State of Kapurthala, cannot be a matter of dispute.
In fact, both the appellants and respondents are ad idem on it.
This Sovereignty continued to be wielded by Maharaja Jagatjit
Singh till 20.08.1948. Maharaja Jagatjit Singh was an absolute
monarch. He was the supreme legislature, the supreme judiciary
and the supreme head of the executive.
Being a sovereign ruler, no incidence of coparcenary or
Joint Hindu family could be applied to properties held by him and
the juniors (sons), had no right by birth. See the judgment of
Bhagwati J in Meramwala's case, Vol.9 (1968) I.L.R. Gujarat 966 =
Vol.9 (1968) Gujarat Law Reporter 609 and the judgment of a
Division Bench of the Kerala High Court in Travancore case. 1983
KLT 408 In Thakore Vinay Singh's [Mohanpur] case, AIR 1988 SC
247 the Supreme Court held that there was no coparcenary, and in
Vishnu Pratap Singh vs State of Madhya Pradesh AIR 1990
SC 522 they were pleased to hold that the Ruler was the absolute
owner of all properties. The Supreme Court judgment in appeal
from the Kerala High Court, and in the Nabha case 1994 Supp-1
SCC 734 = 1993 Sup-1 SCR 607 are conclusive.
68. The series of judgments culminating with the Nabha
case, where the Supreme Court said:
"Though impartibility and primogeniture, in relation
to Zamindari estates or other impartible estates
are to be established by custom, in the case of a
sovereign Ruler, they are presumed to exist
squarely applies. The plaintiffs say nothing why
this dictum - a statement of general law - by the
Supreme Court, is not applicable here.
Incidentally, Nabha was also one of the eight
Rulers who were signatory to the Covenant Ex.D-23
by which their sovereignty was ceded and PEPSU
inaugurated."
69. Maharaja Jagatjit Singh being a Sovereign Ruler, a
Presumption (of impartibility-Primogeniture) could be raised. If
Kapurthala was a mere Zamindari - then no „Presumption‟ will be
available and it will be for the respondent to prove by evidence
that the custom of impartiblity-primogeniture existed. In other
words, it was for the appellants to show that Kapurthala is an
exception and this burden is a very heavy one. Where once the
sovereign status could not be disputed, firstly, the appellants had
to prove an exception to the general rule - of Primogeniture.
Secondly, even if there was no such presumption, there was
overwhelming documentary evidence that Primogeniture prevailed
in Kapurthala.
70. No such suit for declaration or partition was filed.
Appellants have not pointed out any suit for partition in the post-
merger and pre-17.06.1956 period. There is no reported judgment
either. The consistent view is that it can be said with certainty
that this rule (Primogeniture) continued even after 1947-48. Under
Article 372, the law of succession relating to Primogeniture
continues until it is repealed.
71. There are two periods: (1) pre-merger; and (2) post-
merger, i.e., post-20.08.1948. No one can dispute the proposition
that Maharaja Jagatjit Singh was enjoying sovereign powers and if
he wanted to, he could convert the State and its properties into
HUF properties. He did not do so. All he did was execute: (1)
Ex.D-1; and (2) Will X-8.
72. The appellants say Ex.D-1 converted the Mussoorie
property to HUF by applying a hitherto unheard of interpretation to
the words „heirs and successors‟ whereby they argue that this
Declaration converts the property to HUF. It does not help the
case of the appellants because that (clause of the Covenant) would
have been needed to be called in to aid should the Government of
India wielding after 20.08.1948 sovereign legislative powers
sought to pass a law which altered the customary law of
succession.
73. The argument of the appellants that there was a
distinction between public and private property of a sovereign
Ruler and that for the private property was held as a karta of a
coparcenary, is again untenable. A similar argument was rejected
by the Court in the Nabha case, where the Supreme Court
formulated the Question as:
The allied question is whether the Rule of Primogeniture
applies only to the Rulership (Gaddi) and not to the
other property ?
And, after relying upon a series of judgments and the White
Paper on Indian States, laid down:
This being the position, the distinction drawn between
public and private property seems to be not correct.
In view whereof, this argument of the appellants have no
force.
74. At this time [20.08.1948] there was a segregation of
properties. Certain properties were retained by Maharaja Jagatjit
Singh which were termed (at this juncture), as private properties.
A list thereof was prepared by him and submitted to the then
Ministry of States.
75. Whether Primogeniture was stamped out (extinguished)
by Maharaja Jagatjit Singh on 11.08.1948 by Order Ex.D-1, I submit
upon here, but the fact remains and the mention is made here only
to complete the narration, because that Order is nine days before
the cesser of sovereignty and the Appellants argument have the
following :-
Even if Primogeniture had not been stamped out
on 11.08.1948, by Ex.D-1, it ceased to apply on
20.08.1948.
Maharaja Jagatjit Singh, ceased to be a sovereign, when
he ceded his State to PEPSU on 20.08.1948. The appellants,
relying upon the maxim Cessat Ratio Cessat Lex, say that even if
primogeniture applied, and also applied to private property, once
the need thereof, came to an end, primogeniture in any case came
to an end. In other words, according to them, all the Hindu Rulers
(including Maharaja Jagatjit Singh) ceased to be governed by
primogeniture, when they ceased to be Sovereigns in 1948-49
[20.08.1948 in this case].
76. The appellants state that till that date the members of
the joint family could not have gone to Court, but henceforth every
member became entitled to seek partition. In Meramwala's case,
the Division Bench speaking through Bhagwati J, (as his Lordship
then was) had rejected a similar argument. In that case
Bhayawala had died on 17.09.1953, long after the merger (or
cesser of sovereignty) and yet, Primogeniture was found to have
applied. The plaintiffs‟ argument regarding „applicability‟, „survival
(or dormancy) and resumption‟ of the personal law by which the
ancestors of the Rulers were governed prior to their wielding of
sovereignty, is wrong on principle and unsupported by precedent.
The proceedings of the legislature in relation to Section 5 of the
Hindu Succession Act, also indicate that primogeniture applied to
the Rulers, who, after 1948-49, were „Ruling over no territories‟ but
only holding properties and some privileges.
i) In Rajkumar Narsingh Pratap Singh Deo vs State of
Orissa, AIR 1964 SC 1793 Gajendragadkar CJ speaking
for the Court observed:
.. .. as we have just indicated the customary law,
which required the Ruler to provide maintenance
for his junior brother, can be said to have been
continued by clause 4(b) of the Order of 1948 and
Article 372 of the Constitution .. ..
It is plain that though the customary law requiring
provision to be made for the maintenance of the
appellant is in force.
The Supreme Court was referring to the years 1950-51,
and if they found that the customary law in question -
maintenance to the youngers where Primogeniture prevails - had
continued past the merger agreement into the post-Constitution
era (thereby implying that the rights of the junior members \
brothers did not spring back by reason of the merger). In Privy
Purses case, at page 596, where it was said that the President had
to recognise a Ruler by applying the customary law.
ii) In Prabir Kumar Bhanja Deo vs State of Orrisa ILR 1969
(Orissa / Calcutta series 794) the question before the DB was
relating to Keonjhar a Princely State in Orissa. After stating
the genealogical table and noting that Primogeniture
prevailed, and also noting that "Pachchis Sawal" was a
document of high authority relating to customs prevailing in
these States and had stood the field for long years, returned
a finding:
It will thus be apparent from the aforesaid two
questions and answers that in Keonjhar State,
where succession was governed by the custom of
lineal primogeniture, the junior members of the Raj
family were not entitled to any interest in the Rajgi
(the Raj State). They had only a right of
maintenance. ... ...
The turn of events in 1947-48 did not put an end to this rule.
On the contrary, it continued as law under Article 372 of the
Constitution of India.
77. Even after the integration of States in 1948-49, the
Government of India, in several matters pertaining to succession in
the erstwhile Princely States, recognised the existence of this rule.
The Hindu Succession Act, 1956 specially provided Section 5(ii) so
as to continue this rule.
78. After 15.08.1947, S.Jagatjit Singh‟s grand-uncle Raja Sir
Maharaj Singh son of Raja Harnam Singh (Born 1878 -died 1959,
and great-great-great-grandson of Sardar Bhag Singh, the second
Ruler of Kapurthala) - or failing him the other senior direct lineal
male descendants of Sardar Bhag Singh did not come forward with
a claim to become the karta (and be called Maharaja of
Kapurthala) in the lifetime of Maharaja Jagatjit Singh itself, being
the senior-most male.
Whether any act of Maharaja Jagatjit Singh or any other
event converted the property into joint Hindu family
property?
79. The Appellants case that at a Darbar on some day after
20.08.1949 and before 19.06.1949, Maharaja Jagatjit Singh
declared that he was no longer the absolute owner and he threw
everything into the HUF hotch-pot - the Larger HUF or the Medium
HUF is a separate issue - (as many people did with part of their
property in the post-constitutional era to reduce the incidence of
taxation), in which event, consequent to such declaration, all the
family members would have acquired vested interest and then on
his decease (19.06.1949), there would be survivorship (cesser of
interest). The subsequent events speak for themselves. Therefore,
the extinguishment of Primogeniture, revival of rights and other
theories of the appellants are liable to be rejected.
80. Inasmuch as there being no dispute about the concepts
of Mitakshara succession and joint property per the law as it stood
in the pre-17.06.1956 era, and the plaintiff‟s-appellants‟ case
being that it was always a joint family where the karta was
designated as the Ruler - partition/s being a separate issue - it is
also necessary to classify the „family‟ by its size (number of
members).
"It is also to be noted that none of the
collaterals came forward with a claim to
become the karta (and be called Maharaja of
Kapurthala) on the ground of being the senior-
most male in the lifetime of Maharaja Jagatjit
Singh itself. Similarly, none of the other males
or even the widows brought any suit for
partition. The fact that all this did not occur,
by itself proves there was no HUF."
81. We now come to 19.06.1949 when Maharaja Jagatjit
Singh [1872-1877-1949] breathed his last. He left behind two
widows, three sons, and one widow of pre-deceased son.
82. Appellants case as noted earlier, is that on 19.06.1949,
the succession was:
i per Mitakshara Survivorship as distinct from
Succession;
ii (alternatively) per Mitakshara Succession, (absolute
ownership)
and not by Primogeniture or Will. It is also their case that if the
property was not HUF from before, it was, in any case, converted
to coparcenary as of this day, i.e., by reason of Mitakshara
Succession.
83. The Respondent‟s case is that it was neither Mitakshara
Survivorship nor Mitakshara Succession, but succession by Will X-8,
or failing proof of that Will, by Primogeniture. It is also the Rspdt‟s
case that as a matter of fact, the eldest son Maharaja Paramjit
Singh received everything, and no share of property was received
by the collaterals (or even the younger sons of Maharaja Jagatjit
Singh, except that they and the widows did receive maintenance),
which matter of fact succession:
(1) proves Will X-8 / Primogeniture, and (2) disproves Mitakshara
Survivorship and / or Mitakshara Succession.
84. To test the Appellants‟ contention, let us first assume
that Maharaja Jagatjit Singh was the karta of an HUF (coparcenary)
- large (Great) or Medium.
If the appellants contentions of the HUF from before, or
revival of rights on 15.08.1947 / 20.08.1948, were to be accepted,
then the larger HUF (coparcenary) would comprise all the
descendants of Sardar Bhag Singh, the second Ruler of Kapurthala
- the (supposed) Great Kapurthala Coparcenary.
In such an event, the male members of the family would
have had vested interest from prior to Maharaja Jagatjit Singh‟s
death, and each one would have also been free from before, to sue
for partition.
85. If the appellants‟ (alternative) contention of the HUF in
any case being created on or after 20.08.1948 and being in
existence on 19.06.1949 were to be accepted, the „Medium‟ HUF
(smaller) would comprise Maharaja Jagatjit Singh‟s branch, i.e., his
wives, three sons, widowed daughter-in-law, and all the
grandchildren. Each one would have been free from before, to sue
for partition.
Hindu Mitakshara Survivorship postulates a pre-existing
coparcenary where all the members have a vested right in the
property from prior to Maharaja Jagatjit Singh death (19.06.1949).
The Survivorship principle of the pre-17.06.1956 era proceeds on
the basis that on death, the existence of the deceased gets
subsumed but the coparcenary continues to exist.
86. If Mitakshara Intestate Succession:
The next contention of the appellants- of the 1949
succession being Mitakshara intestate, i.e., no Will or
Primogeniture.
Mitakshara intestate succession on 19.06.1949
would mean inheritance (or receipt) of property by
the three sons as joint-tenants, and per stirpes and
not per capita. All grandsons would also get interest
from that point of time (19.06.1949) itself. In
common parlance, it is referred to as „ancestral
property‟, i.e., property which by reason of
inheritance stood converted to HUF. The widows
(after 1937) would have got life interest. This was
the law prior to 17.06.1956.
87. To test this contention of the appellants, we proceed on
the basis that Maharaja Jagatjit Singh was not the karta of an HUF
(coparcenary) - large or small - and an absolute owner, but we
assume that he was not governed by the rule of Primogeniture, but
by Mitakshara (as Hindu commoners of north India were prior to
17.06.1956). In that event, and assuming he died intestate, as per
the customary law (Shastric Hindu law) then prevailing, the
following:
i Tikka Raja Paramjit Singh - Eldest son
ii M.K. Karamjit Singh - Second son
iii M.K. Ajit Singh - Third son
The three grandsons - Tikka Raja Sukhjit Singh, R.K.
Arun Singh and R.K. Martand Singh - would have got vested
interest on this day (19.06.1949) itself.
88. The two widows (Maharani Bushair and Maharani Prem
Kaur) and the widowed daughter-in-law (M.K. Rani Mahijit Singh)
would have got life interest under the 1937 Act. The
granddaughters (Indira and Asha Kaur) would have become
„members‟ with a right to maintenance and marriage expenses,
which „membership‟ would have ceased on their marriage.
Therefore (in such event), by operation of law, all of them (that is,
all the three sons along with their wives and sons) would become
part of the Kapurthala joint family on 19.06.1949 itself, and unless
a partition takes place at which they get equal shares, their rights
are not lost.
89. The fact that the two younger sons did not claim as
coparceners, and instead received only maintenance, shows, and
shows conclusively, that it was the Will X-8, and the rule of
Primogeniture, that prevailed. There is no evidence on record or
proof by the appellants to show Mitakshara Survivorship/
Succession. On the contrary, the evidence produced and proved
by the respondent No.1 establishes :
(1) absence of Mitakshara Survivorship or Mitakshara
Succession; and
(2) succession by Will/Primogeniture.
90. Further, if „Mitakshara inheritance‟ had taken place in
1949, there could have been no Succession on 19.07.1955, but
only „Survivorship‟, at which, not Sukhjit Singh, respondent No.1
but his uncle M.K. Karamjit Singh, would have become the karta.
This did not happen. See Chapter 11 infra. Furthermore, as per
the law, all the widows would have got limited or life interest
(under the 1937 Act), and since all six survived 17.06.1956, their
interests would have stood enlarged on 17.06.1956 by virtue of
Section 14(1) of the Hindu Succession Act. And, since it is
admitted to have not occurred - the evidence on record also shows
that it did not occur - it stands proved that the succession in 1949
was by Will / Primogeniture, and not by Mitakshara.
91. The matter of fact succession - by the eldest son
(Paramjit Singh) alone, with only „maintenance‟ to the brothers
(younger sons) - or the events that transpired subsequently
(19.07.1955, 17.06.1956) more than establish that on 19.06.1949
there was: (1) no HUF; (2) no survivorship; (3) no Mitakshara
intestate succession; but Will X-8 or Primogeniture.
92. The documents as referred earlier and the evidence
adduced on behalf of the respondent No.1 clearly establish the
sovereign character of the erstwhile Kapurthala State.
Consequently, the appellants plea that the rulers of Kapurthala
were only Jagirdars or Chiefs and not rulers is wholly without
cogent evidence and the appellants are failed to substantiate their
plea raised, on the other hand the evidence produced has proved
that the Kapurthala was a sovereign State and the custom of
primogeniture was invariably prevalent in Hindu Sovereign State
all across India including Kapurthala.
93. After having gone through the impugned judgment, we
are of the considered view that the learned Single Judge has dealt
with each and every piece of evidence produced by the parties and
has rightly come to the conclusion that the respondent No.1 has
been able to establish his pleas raised in the written statement
and we agree with the finding of the learned Single Judge that
there is cogent evidence on record to come to the conclusion that
rule of primogeniture prevailed.
94. Hence, there is no scope of interference in the impugned
judgment and decree passed by the learned Single Judge on
03.09.2004. The appeal is, therefore, devoid of any merit and the
same is dismissed with costs.
95. Now, we shall deal with the cross-objections filed lby
respondent no.1 pertaining to its contentions on issue nos. 6 to 9.
96. The finding on issue no.6 arrived by P.K. Bahri, J. in
judgment dated 06.04.1992 which reads as under :
"Mere fact that mark X8 is the certified copy of
the purported Will of Maharaja Jagatjit Singh
does not mean that the onus to prove that
Maharaja Jagatjit Singh actually had executed
a valid Will stood discharged on the part of
defendant No.1. the executionof the Will has
to be proved in terms of Section 63 of the
Indian Succession Act. No evidence has been
led to prove that Maharaja Jagatjit Singh who
was about 76 years of age at the time of his
death in 1949 had the testamentary capacity
to execute a Will. No evidence has been led
to show that the original Will of which mark X8
is the copy actually had signatures of Maharaja
Jagatjit Singh and also the signatures of the
two attesting witnesses. In Moon Devi Vs.
Radha Devi; AIR 1972 SC 1471, it has been laid
down that it is not merely the genuineness of
signatures on which the proof of the execution
of the Will under Section 38 of the Indian
Succession Act depends, it has to be proved
that the Will was attested in accordance with
clause (e) of that Section.
It may be also highlighted that letters Exs.
PW 1/18, PW 1/19, PW 1/64 and PW 1/65
would indicate that defendant No.1 was very
keen and rather coerced his father to execute
a Will in his favour cancelling the previous Will
made in favour of Maharani Stella. Such
pressure and coercion would not have been
necessary if Maharaja jagatjit Singh had made
a Will of which mark X8 is the copy because
defendant No.1 would have inherited all the
properties bequathed to Maharaja Paramajit
singh on the basis of the siad Will and in fact,
Maharaja Paramajit Singh could not have been
entitled to make any Will in respect of those
properties at all.
It is also admited case oif the parties that
Maharaja Paramjit Singh was making
allowances to his collaterals which he had
stopped and defendant No.1 in the letter
referred to above while referring to the
contents of the Will of Maharaja Jagatjit Singh
was also accusing his father of acting dirty
towards the family and not following the
contents of the Will of Maharaja Jagatjit Singh.
The document Ex.DW6/XN is a letter written by
late Prime Minister Pt. Jawaharlal Nehru to his
father objecting to his father cutting down the
allowaqnces being given to the other members
of the family. So, it is evident that allowances
were being paid by Maharaja Paramjit Singh to
other family members and it is not shown by
defendant No.1 why such allowances were
being paid and what were the conditions and
the rule which the allowances were being paid
to which the indication is given in the letter Ex.
DW6/XN. The stateemnts of two witnesses
Pyare Lal and Des Raj, Advocates, do not prove
that the Will which was allegedly filed in the
court proceedings at Kapurthala bore the
signatures of Maharaja Jagatjit Singh and they
also did not say that they were in a position to
idenity the signatures of Maharaja Jagatjit
Singh and of the attesting witnesses. The
testimony of Des Raj, Advocate, shows that a
certificate was issued by the Govt. of India in
davour of Maharaja Paramjit Singh which was
filed in the petition for grant of succession
certificate with regard to certain assets left by
Maharaja Jagatjit Singh and he could not deny
whether the succession certificate had been
granted on the basis of certificate issued by
the Govt. of India. It is quite evident that the
succession that the succession certificate was
not granted on the basis of the alleged Will of
Maharaja Jagatjit Singh. So, examiend from
every point of view, it is clear that defendant
No.1 has miserably failed to prove that
Maharaja Jagatjit Singh had executed a valid
last Will of which mark X8 is the copy.
In view of the above discussion, I hold that
defendant No.1 has failed to prove that any
Will dated January 16, 1949, of which Mark X8
is the certified copy was executed by Maharaja
Jagatjit Singh. So, Issue No.6 is decided
against defendant No.1."
Issue Nos.7 to 9 were to arise only if the findings were to
be given in issue Nos.6 to 8 in favour of defendant No.1.
97. While determining the issue No.8, the following are main
finding in the judgment:
"As far as factum of obtaining
a succession certificate is concerned, it is
obvious that the proceedings for grant of
succession certificate being not proceedings in
probate jurisdiction donot determine any title
in rem. The succession certificate only entitles
a person to collect the money left by the
deceased.
In Ram Saran Vs Gappu Ram, AIR 1916 Lahore
277, it was laid down that grant of succession
certificate does not establish title of the
grantee as the heir of the deceased,
it only furnishes him with an authority
to collect the debts and allows the
debtors to make payments to him without
incurring any risk. A similar proposition was
reiterated by the Lahore High Court in Mt.
Charjo & another Vs Dina Nath & others, AIR
1937 Lahore 196.
At the time the aforesaid certificate
was obtained, defendant No.1 was unmarried.
As far as testimony of attesting witness
Maj. Kirpal Singh, who has since deceased,
recorded in the same is not admissible
in evidence inasmuch as the same
does not comply with the strict
provision of Section 33 of the Indian Evidence
Act. So, it cannot be used for proving the
aforesaid Will.
Defendant No.1 has not in his
elaborate testimony stated as to how and in
what manner and at what place the Will
came to be executed. It is to be remembered
that the Will was allegedly made on July
10, 1955 and Maharaja Paramjit Singh
died on July 19, 1955. The contents of the
letters written by defendant No.1 Exs.PW1/18,
PW1/19, PW1/64 & PW1/65 show amply that
defendant No.1‟s father was not in
sound disposing mind during his last days
and defendant No.1 was putting up lot of
pressure and coercion on his father
for revoking his Will which he had earlier
made in favour of his wife Maharani
Stela. Defenant No.1 in cross-examination
was not even admitting the fact that his father
had made a Will in favour of Maharani Stela
almost bequeathing everything to her but on
persistent cross-examination his counsel
conceded the fact that for the purposes of this
case it be assumed that Maharaja Paramjit
Singh had made a Will in favour of his wife.
It has also come out on the record that
defendant No.1 had to make a settlement with
Maharani Stela and had to part with
substantial estate. In case there was a valid
Will of his father which is the last Will
bequeathing everything in favour of defendant
No.1 there could be no occasion for defendant
No.1 to have entered into a settlement with
Maharani Stela. The contents of the letters
written by defendant No.1 mentioned above
would clearly indicate that defendant No.1 was
accusing his own father of playing dirty with
the whole family by trying to leave everything
in favour of Maharani Stela and his own efforts
to prevail upon his father to revoke the said
bequest. There was one schedule of the
property attached with the settlement arrived
at with Maharani Stela which would have
disclosed us how much properly had been
given to Maharani Stela on the basis of the
settlement but that schedule was not
produced.
The two attesting witnesses of the aforesaid
Will Maj.Kirpal Singh and Shanti Sagar had
died. Major Kirpal Singh was General Attorney
and Secretary of defendant No.1. No evidence
has been led by defendant No.1 to prove that
the aforesaid Will was executed by Maharaja
Paramjit Singh in presence of the said two
witnesses. Reference was also made by
counsel for defendant No.1 to the testimony of
Dewan Pyare Lal (DW2) but his statement does
not categorically prove the execution of a valid
Will by Maharaja Paramjit Singh because he
was not present at the time the alleged Will
was executed by Maharaja Paramjit Singh.
A half hearted contention was raised that the
document being 30 years old a presumption
with regard to its due execution arises under
Section 90 of the Indian Evidence Act. AT the
time the suit was filed the document was not
30 years old. So, no presumption can be
drawn regarding its due execution by
reference to the provisions of Section 90 of the
Indian Evidence Act. I hold that it is not
proved that Maharaja Paramjit Singh had
executed a valid Will Ex.D11.
Issue No.8 is decided against defendant No.1."
98. In Issue No.6 it was held that the same was not proved
that Maharaja Jagatjit Singh has executed any Will dated
16.01.1949 which is exhibited as „X-8‟. In issue No.8
again a finding was given that it is not proved that Maharaja
Paramjit Singh had executed a Will dated 10.07.1955 exhibited as
„D-11‟.
99. It was specifically mentioned in the order passed in
review application on 28.4.1969 that the finding of the court with
regard to the issue Nos.6 to 9 did not call for any review. It is a
matter of fact that the said order allowing the review petitions
was challenged by the appellants before the Division Bench of this
Court and the appeal filed by the appellants was dismissed on
09.05.1996. As far as the respondent No.1 is concerned, he did
not challenge the said order.
100. Learned counsel for the respondents have made various
submissions and also referred decisions in support of cross
objections filed by the respondent no.1.
101. Admittedly, P.K. Bahri, J. in his judgment dated
06.04.1992 had decided issue nos. 6 to 9 against the
respondents as no review was allowed in respect of
these issues by order dated 28.04.1995. The matter was
then put up for fresh hearing of issue nos. 1,2,4,5,10 and 11
and ultimately the impugned judgment and decree was passed on
3rd September, 2004 in the main Suit. The same was challenged in
the present appeal. The respondnet no.1 filed the cross objections
in the appeal and challenged the order of review dated 28 th April,
1994.
102. Learned Single Judge, admittedly, has not dealt with the
finding arrived on issue nos. 6 to 9 while passing the impugned
judgment. Learned cousel for the respondent however, during the
course of arguments the learned counsel for the respondent has
admitted that the issue on the decision of two Wills marked X-8
and X-11 are merely academic. If relief in favour of respondent
no.1 is granted by holding that the rule of primogeniture is
applicable in the State of Kapurthala.
103. In view of the abovesaid reasons, we feel it not
necessary to deal with and discuss on these issues. The cross
objections filed by the respondnet no.1 are, therefore, disposed of
accordingly as this court has decided the issue of rule of
primogeniture in favour of the respondents.
104. No costs.
MANMOHAN SINGH, J.
A.K. SIKRI, J.
NOVEMBER 19, 2010
Jk/dp/sa
