Maharaja Kumar Kharagh Singh Of ... vs His Highness Maharaja Pratap ...
2014 Latest Caselaw 288 Del

         *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 16th January, 2014

+                               RFA No.44/2009

      MAHARAJA KUMAR KHARAGH SINGH OF NABHA
      (DECEASED) THROUGH LR.                    ..... Appellant
                   Through: Mr. Sudhir Chandra, Sr. Adv. with
                            Mr. Vivek Chaudhary & Mr. Pankaj
                            Bhatia, Advs.

                                   Versus

    HIS HIGHNESS MAHARAJA PRATAP SINGH OF NABHA
    (DECEASED) THROUGH LR AND ORS.             ..... Respondents
                  Through: Mr. Chetan Sharma, Sr. Adv. with
                           Mr. Manoj Sharma, Adv. for R-3.
                           Mr. Akhil Sachhar & Ms. Deepali
                           Sharma, Advs. for R-4 & R-6.
                           Mr. Ritesh Aggarwal, Adv. for R-5.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the decree dated 19.08.2008 of the Court of

Additional District Judge (ADJ), Fast Track Court, Delhi of dismissal of suit

No.293/2006 [old suit No.75/1975] filed by the appellant consequent to the

rejection of the plaint under Order 7 Rule 11 of the CPC.

2. Notice of the appeal was issued and the Trial Court record

requisitioned. The appellant demonstrated a highly lackadaisical attitude in

service of notice of the appeal on the respondents (of which there are 37);

owing to the said failure and finding that the appellant and the respondent

No.1 had died and no steps had been taken to bring their legal heirs on

record, the appeal was on 14.09.2010 dismissed as abated. An application

for recall of the said order was filed pointing out that the appellant and the

respondent No.1 had died during the pendency of the suit and their heirs

substituted in the suit itself though not so shown in the memorandum of

appeal, with a prayer for filing of fresh memo of parties. The said

application was allowed on 17.01.2012 and the appeal restored to its original

position.

3. Only the respondents No.3 to 6 appeared in response to the notice

issued of the appeal and the appellant filed an application for service by

publication of the unserved respondent. Finding that the plaint in the suit

from which this appeal arises was rejected only on the application of the

defendant / respondent No.3 and further finding that the other respondents

despite service had not appeared before the Trial Court also, the service of

the unserved respondents was dispensed with. Upon it being pointed out

that some of the unserved respondents / defendants had also died and no

steps for substitution of their legal representatives had been taken, the

substitution of the legal representatives of the respondents / defendants who

had failed to appear before the Trial Court was also dispensed with vide

order dated 16.07.2013 and the appeal admitted for hearing and listed in the

category of regular matters of senior citizens.

4. The senior counsel for the appellant and the senior counsel for the

defendant / respondent No.3 Maharaj Kumar Hanumant Singh and the

counsel for the respondents No.4 and 6 viz. His Highness Majaraja Hemant

Singh of Dholpur and Maharaj Kumari Snehlata Devi and the counsel for the

respondent No.5 Maharaj Kumar Himmat Singh have been heard.

5. The suit from which this appeal arises was filed by the deceased

appellant / plaintiff on 27th November, 1974, for partition and for rendition

of accounts, pleading:

(i) that in the year 1923 Maharaja Ripudaman Singh was

stripped of ruling powers and was made to leave and sever

his connection with Nabha administration by the then British

Government and was compelled to reside in Dehradun

district and later on in exile in Kodikanal in South India;

(ii) that the said Maharaja Ripudaman Singh died in December,

1942 leaving considerable movable and immovable

properties acquired with his personal funds unconnected

with the State funds, either in his own name or in the name

of relations and friends, being benami for the benefit of

himself; he had also inherited lot of property, immovable

and movable from his father and the four Maharanis of his

father - these properties were in Dehradun, Mussoorie,

Shimla, Delhi and Nabha, as also overseas in U.K.;

(iii) that the aforesaid properties continued to be personal

properties of Maharaja Ripudaman Singh until his death and

he never merged these properties in the impartible estate of

the erstwhile Nabha State;

(iv) that after the death of Maharaja Ripudaman Singh in 1942,

the respondent / defendant No.1 being the eldest male

member became the Head / Karta of the family and started

looking after the properties and the deceased appellant /

plaintiff being also a son of Maharaja Ripudaman Singh also

rendered assistance to the respondent / defendant No.1 in the

management of the said properties;

(v) that the respondent / defendant No.1 with the said funds of

the family acquired other properties and all of which are also

deemed to be joint family properties;

(vi) that the respondent / defendant No.1 upto the end of the year

1956 or so had been acting as Karta of the family and was

liable to render accounts therefor;

(vii) that in 1957, the respondent / defendant No.1 started

claiming all the aforesaid properties as his personal

properties and which led to disputes;

(viii) that however neither the deceased appellant / plaintiff nor

other heirs of Maharaja Ripudaman Singh could bring an

action for partition and accounts against the respondent /

defendant No.1 without the consent in writing of the Central

Government, as the respondent / defendant No.1 was Ruler

of the erstwhile Nabha State;

(ix) accordingly, in or about the year 1958 applications were

submitted to the Government of India for permission to sue

respondent / defendant No.1 but which permission was

denied;

(x) that the respondent / defendant No.1 in the meanwhile

started selling the properties and from the sale proceeds

started acquiring other properties in his name;

(xi) that again permission was applied for to sue the respondent /

defendant No.1 with respect to one of the properties viz.

"Sterling Castle" at Shimla and though permission was

again denied but the deceased appellant / plaintiff and other

co-owners nevertheless filed action for joint possession and

partition of the said property in the Courts at Shimla and in

which a judgment and decree dated 15.10.1973 was passed

in favour of the appellant / plaintiff and the respondents /

defendants No.7 to 11 holding that the said property was

purchased by Maharaja Ripudaman Singh benami in the

name of his friend Dr. Tehl Singh and that succession to this

property would be governed by Hindu Mitakshara Law and

the same could not be the exclusive property of the

respondent / defendant No.1 and negating the plea of the

respondent / defendant No.1 of having become the absolute

owner of the said property on account of succession under

law of primogeniture;

(xii) another suit was filed by some of the respondents /

defendants with respect to another property in the Court at

Dehradun in which also vide judgment and decree dated

09.09.1963 it was held that the respondent / defendant No.1

was the Karta of the family and the property belonged to the

family and the plea of the respondent / defendant No.1 of

having become the sole owner of the property on account of

rule of primogeniture was disallowed;

(xiii) another action was brought in the Courts at Mussoorie with

respect to another property and which was pending at the

time of institution of the suit on 27.11.1974;

(xiv) yet another action with respect to yet another property was

at the time of institution of the suit pending in the Courts at

Dehradun;

(xv) that the State of Nabha was in the year 1948 merged with

Patiala and East Punjab States Union (PEPSU);

(xvi) that the suit was within limitation as the permission to

institute the said suit was granted by the Government vide

letter dated 29.11.1971.

Accordingly, the suit for partition of the properties detailed in

Schedules „A‟ to „H‟ of the plaint and for rendition of accounts with respect

thereto was filed, impleading besides the respondent / defendant No.1, all

the other then heirs of the said Maharaja Ripudaman Singh.

6. The respondent / defendant No.3 applied under Order 7 Rule 11 of the

CPC for rejection of the plaint on the ground that the main issue involved in

the suit was, whether the properties were under the exclusive and absolute

ownership of respondent / defendant No.1 as ruler of the erstwhile State of

Nabha under the rule of primogeniture or were the joint family properties

and the said issue had already been decided by the Supreme Court in the

judgment dated 17.08.1993 titled His Highness Maharaja Pratap Singh Vs.

His Highness Maharani Sarojini Devi 1994 Supp. (1) SCC 734 and which

was binding on the parties.

7. The deceased appellant / plaintiff contested the application

controverting that the said issue had been decided in the judgment supra of

the Supreme Court and contending that the parties were bound by the

judgment of the Allahabad High Court in First Appeals No.75/1964 and

293/1966 wherein it was held that the rule of primogeniture was applicable

only to the Gaddi and not to the properties.

8. The learned ADJ allowed the application of the respondent /

defendant No.3 under Order 7 Rule 11 of the CPC and rejected the plaint (in

the suit from which this appeal arises), finding / observing / holding:

(I) that the Supreme Court in the judgment aforesaid had found:

(a) that Maharaja Ripudaman Singh ascended to the Gaddi

of Nabha in 1911 and was an absolute monarch;

(b) that in the year 1923, the British Government removed

Maharaja Ripudaman Singh and externed and exiled him

from the State and Maharaja Ripudaman Singh took up

residence in Dehradun which was part of British India;

(c) that the administration of the Nabha State was taken

over and carried on by the British;

(d) that Maharaja Ripudaman Singh in the year 1927

changed his name to S. Gurcharan Singh;

(e) that Maharaja Ripudaman Singh was formally deposed

only on 02.02.1928 and British Government installed his

son i.e. the respondent / defendant No.1 as the ruler of

Nabha and the State of Nabha and all its properties came

to be vested in the respondent / defendant No.1;

(f) Maharaja Ripudaman Singh @ S. Gurcharan Singh

having been deposed, became a commoner and settled

down in Kodaikanal;

(g) that the respondent / defendant No.1 attained majority

on 05.03.1941 and was formally invested with full

ruling powers;

(h) that rule of primogeniture was applicable in the State of

Nabha and on 02.02.1928 the respondent / defendant

No.1 was installed on the Gaddi by the British

Government under the rule of primogeniture;

(i) that the respondent / defendant No.1 being the ruler, all

properties of Nabha State vested in him;

(j) that at the time when the respondent / defendant no.1

became major and was invested with full ruling powers

on 05.03.1941, his father viz. Maharaja Ripudaman

Singh @ S. Gurcharan Singh was still alive as he

expired only on 12.12.1942 - thus the properties had

vested in the respondent / defendant No.1 on 05.03.1941

not on the death of his father Maharaja Ripudaman

Singh @ S. Gurcharan Singh but under the rule of

primogeniture;

(k) that even if it were to be held that the respondent /

defendant no.1 became Karta of the family after the

demise of Maharaja Ripudaman Singh @ S. Gurcharan

Singh, there was no scintilla of evidence to show even

prima facie that Maharaja Ripudaman Singh @ S.

Gurcharan Singh had acquired any property during the

time from 02.02.1928 when he was formally deposed as

the ruler of erstwhile Nabha State and till his death and

whatever properties he was holding till 02.02.1928 being

the ruler of Nabha State, were vested in the respondent /

defendant No.1 on the day he became the ruler of the

said State;

II.(i) that Sterling Castle being subject matter of the legal

proceedings at Shimla was not the subject matter of the

instant suit; the fate of other two properties viz. Ilahi

Manzil and 34, Alipur Road, Delhi pleaded to have been

acquired by Maharaja Ripudaman Singh @ S.

Gurcharan Singh had already been finally decided by the

Supreme Court in the judgment supra holding that the

said properties belonged to the State of Nabha and were

not purchased by Maharaja Ripudaman Singh @ S.

Gurcharan Singh from his personal funds;

(ii) that there was no evidence on record to show that

Maharaja Ripudaman Singh @ S. Gurcharan Singh had

any personal fund which was unconnected with the State

fund and the deceased appellant / plaintiff had not filed

any document to show even prima facie that any account

of separate personal funds unconnected with the State

funds was maintained except for a bald averment to the

said effect;

(iii) that in the absence of any specific averment on record,

presumption was that all properties were properties of

the State of Nabha;

(iv) there was nothing on record to show even prima facie

that Maharaja Ripudaman Singh @ S. Gurcharan Singh

at the time of his death was in possession of any fund;

(v) there was nothing on record to show even prima facie

that the respondent / defendant No.1 had acquired any

family fund upon the demise of Maharaja Ripudaman

Singh @ S. Gurcharan Singh;

(vi) that there was nothing on record to show that the

construction over the properties purchased benami

flowed from personal funds and not from the funds of

the State;

(vii) that there were no specific averments about the manner

of acquisition of any of the properties of which partition

was claimed;

(viii) merely the fact that the properties were acquired by

Maharaja Ripudaman Singh @ S. Gurcharan Singh

during his reign as ruler of the Nabha State did not mean

that they were his personal properties;

(ix) that even though property No.34, Alipur Road, Delhi

was the subject matter of the judgment supra of the

Supreme Court but the same had again been included in

the list of properties of which partition was claimed,

showing that the deceased appellant / plaintiff did not

approach the Court with clean hands;

(x) in fact there was no averment in the plaint that the

properties were purchased from personal fund or for

personal use of the Maharaja;

(xi) that the judgment of the Allahabad High Court on which

reliance was placed by the deceased appellant / plaintiff

related to a commoner and related to a property

purchased in 1951 out of the personal funds of Maharaja

Ripudaman Singh @ S. Gurcharan Singh at the time of

his death and though was considered by the Supreme

Court in the judgment aforesaid but held to be not

constituting res judicata;

(xii) there was no averment in the plaint of any of the

properties with respect to which the suit was filed

having been so acquired from the personal funds out of

which the property subject matter of the Allahabad High

Court judgment had been acquired;

It was thus held that the suit from which this appeal arises was not

maintainable and was barred by the aforesaid judgment of the Supreme

Court and the plaint thus liable to be rejected;

(III) (a) even though the respondent / defendant No.3 in

application under Order 7 Rule 11 had not taken the ground of

the suit being not properly valued for the purpose of court fees

and jurisdiction but the appellant / plaintiff inspite of admittedly

not being in possession of the properties had paid fixed court

fees and not ad valorem court fees;

(b) relying on Prakash Wati Vs. Dayawanti AIR 1991 Delhi 48,

Rani Devi Vs. Ashok Kumar Nagi AIR 1999 Delhi 109, Abdul

Hamid Shamai Vs. Abdul Majid AIR 1988 SC 1150 and

Commercial Aviation & Travel Company Vs. Vimla Panna

Lal AIR 1988 SC 1636 it was held that the suit was not

properly valued for the purpose of court fees and jurisdiction;

(c) however since the suit was otherwise held to be not

maintainable, it was held that no purpose would be served in

giving an opportunity to the appellant / plaintiff to make up the

deficiency in court fees and the plaint was rejected.

9. The senior counsel for the appellant / plaintiff though not

controverting; a) that the Supreme Court in judgment supra has held the rule

of primogeniture to be prevalent in the State of Nabha; b) that there are no

averments of any of the properties subject matter of the suit having been

acquired by Maharaja Ripudaman Singh @ S. Gurcharan Singh during his

tenure as the ruler of the State of Nabha from his personal funds; c) that

there is no averment in the plaint of any of the properties with respect to

which the suit had been filed having been acquired by Maharaja Ripudaman

Singh @ S. Gurcharan Singh after he had ceased to be the ruler of the State

of Nabha; d) that there is no material also on record to show that there was

any personal fund of Maharaja Ripudaman Singh @ S. Gurcharan Singh

during his regime as the ruler of the Nabha State; e) that there is no material

on record to show that any of the properties with respect to which the suit

had been filed were acquired as or were the personal properties of Maharaja

Ripudaman Singh @ S. Gurcharan Singh, has argued:

(aa) that even under the rule of primogeniture, other heirs /

members of the families used to get grants / maintenance;

(bb) that in para No.46 of the plaint, a claim for maintenance in

favour of the defendant No.12 (who is now the appellant as

heir of the deceased appellant / plaintiff) was made and thus it

could not be said that there was no cause of action for the suit;

(cc) that only in trial can it be established whether the properties

were the personal properties or not and if it is so established,

the appellant / plaintiff would have a share therein and if it is

not so established and the properties are held to have devolved

on the respondent / defendant no.1 under the rule of

primogeniture, the appellant / plaintiff would have a right of

maintenance therefrom;

(dd) that though the Supreme Court in para No.51 of the judgment

aforesaid had referred to Vishnu Pratap Singh Vs. State of

M.P. 1990 Supp SCC 43 laying down that there was in reality

no distinction between State property and property privately

owned by a ruler since the ruler was the owner of the

properties in the State and under the covenant of acquisition

of the States to the Union of India all the property of the State

vested in the new State except private property which was to

remain with the ruler, but in Para 58 of the judgment had also

referred to Revathinnal Balagopala Varma Vs. His Highness

Sri Padmanabha Dasa Bala Rama Varma 1993 Supp (1)

SCC 233 laying down that 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 property was held by the sovereign

not as sovereign but in some other capacity; thus an

opportunity has to be given to the appellant / plaintiff to

establish that the properties subject matter of the suit were

held by Maharaja Ripudaman Singh @ S. Gurcharan Singh

even when the ruler of the Nabha State, not as sovereign but

in his personal capacity;

(ee) that the learned ADJ has erred in taking a „prima facie view‟

of the matter for rejecting the plaint and which is not

permissible in law;

(ff) attention in this regard is invited to Liverpool & London S.P.

& I Association Ltd. Vs. M.V. Sea Success I (2004) 9 SCC

512 laying down that weakness of the case pleaded is not a

ground for rejection of the plaint;

(gg) that the judgment aforesaid of the Supreme Court, as evident

from Para No.82 thereof, is only with respect to three

properties subject matter of that proceeding and thus cannot

be res judicata qua the other properties in the suit (from

which this appeal arises);

(hh) attention is invited to the written statement of the respondent /

defendant No.1 to para No.9 of the plaint in the suit to

contend that the respondent / defendant No.1 therein had

denied that Maharaja Ripudaman Singh @ S. Gurcharan

Singh had any personal funds unconnected with the State or

that he acquired any of the properties with such funds and it is

contended that the same raises disputed question of fact and

on which issues were framed in the suit as far back as on

16.02.1982 and the same have to be adjudicated and the plaint

could not have been rejected.

10. Per contra, the counsel for the respondent / defendant No.3 and whose

contentions have been accepted by the counsels for the respondents /

defendants No.4 to 6 also, has argued:

(A) that the deceased appellant / plaintiff in para No.9 of the

plaint, written statement whereto has been highlighted, has

not pleaded Maharaja Ripudaman Singh @ S. Gurcharan

Singh to be having any personal properties or personal fund

and merely because the respondent / defendant No.1, to take

a proper defence in law, had stated that Maharaja Ripudaman

Singh @ S. Gurcharan Singh did not have any personal fund

would not, in the absence of any averment in the plaint, give

rise to an issue of fact for a trial to be required thereon;

(B) that Maharaja Ripudaman Singh @ S. Gurcharan Singh, after

being deposed as the ruler of the Nabha State, lived and died

as a commoner;

(C) that the respondent / defendant No.1 did not inherit any

properties from his father;

(D) all the properties were vested in the respondent / defendant

No.1 by virtue of being the ruler of the State;

(E) that Maharaja Ripudaman Singh @ S. Gurcharan Singh once

exiled was without any property; attention in this regard is

invited to para No.34 of the judgment supra of the Supreme

Court and upon it being pointed out that the said paragraph is

not a finding of the Supreme court but records a submission

of the counsel, it is contended that the said submission was

accepted;

(F) attention is invited to para No.42 of the judgment supra of the

Supreme Court framing the points for determination therein;

(G) that the suit from which the judgment aforesaid of the

Supreme Court arises was filed by the wife of Maharaja

Ripudaman Singh @ S. Gurcharan Singh and who was held

to be not entitled to any share in the estate of Maharaja

Ripudaman Singh @ S. Gurcharan Singh;

(H) attention is invited to the order dated 27.09.1988 in the suit

recording the contention of the counsel for the deceased

appellant / plaintiff that „similar matter is to come up before

the Supreme Court on 22.11.1988 and will have substantial

effect "on the decision of the applications then pending in the

suit" and to the subsequent orders dated 13.02.1989,

21.08.1989 and 11.12.1989 when the suit was adjourned

awaiting the judgment of the Supreme Court and it is

contended that the judgment awaited was the same judgment

as aforesaid and the appellant / plaintiff after having taken a

stand that the present suit would also be governed by the

judgment of the Supreme Court, cannot, after the said

judgment has gone against him, be permitted to turn turtle

and now argue that he is not covered by the said judgment;

(I) attention is also invited to the order dated 29.03.1995 in the

suit posting the suit for arguments, besides on the application

under Order 7 Rule 11 of the CPC, also on the following

issues out of the issues framed on 16.02.1982, which were

treated as the preliminary issues:

"1. Whether this Court has territorial jurisdiction to try this case against defendants 27,28 and 29?

2. Whether the suit in the present form against defendants 27, 28 and 29 is maintainable?

3. Whether the plaint discloses any cause of action against defendants 27,28 and 29?

4. Whether defendants 27, 28 and 29 are necessary or proper parties?"

(J) attention is invited to Para No.10 of the written statement of

the respondent / defendant No.1 setting out succinctly the

defence, accepting the principle whereof the judgment of the

Supreme Court is based;

(K) attention is invited to the prayer paragraph of the plaint to

point out that no relief of maintenance in the event of the

properties being governed by the rule of primogeniture has

been claimed;

(L) that even if all the properties subject matter of the suit from

which this appeal arises were not made subject matter of the

previous suit for partition filed by the wife of Maharaja

Ripudaman Singh @ S. Gurcharan Singh, also claiming share

in the properties, successive suits for different properties

cannot be filed;

(M) that there are now more than 30 heirs of Maharaja

Ripudaman Singh @ S. Gurcharan Singh and they cannot be

permitted to successively sue claiming the same reliefs and

once the matter stands settled by the judgment aforesaid of

the Supreme Court, no other action by any other heir or with

respect to any other property can be entertained.

11. The senior counsel for the appellant / plaintiff in rejoinder has

contended:

(I) that the rejection of the plaint was claimed only on the ground

of the judgment aforesaid of the Supreme Court and not on the

basis of suit being not properly valued for the purpose of court

fees and jurisdiction and appropriate court fees having not been

paid on the plaint;

(II) that the Supreme Court in para No.65 of the judgment supra has

held that though primogeniture in relation to zamindari estates

has to be established by custom, in case of a sovereign ruler it is

presumed to exist and it is for the respondent / defendant No.1

to establish the prevalence of the rule of primogeniture with

respect to the suit properties and there can at best be a

presumption and an opportunity to repudiate also has to be

given;

(III) that though the pleadings in the plaint may not be precise but

are not to be strictly construed;

(IV) that the appellant / plaintiff cannot be left "high and dry";

12. On my asking, the counsel for the respondent / defendant No.3, after

conclusion of hearing, has handed over copies of the judgments dated

24.12.1976 in suit No.394/1966 and in RFA (OS) No.6/1977 decided on

23.05.1980, inter alia from which the judgment aforesaid of the Supreme

Court had arisen.

13. The counsel for the appellant / plaintiff also, much after the

conclusion of hearing and without any permission having been granted in

this regard, has handed over copies of the judgments in N. Padmamma Vs.

S. Ramakrishna Reddy (2008) 15 SCC 517 (para No.18) and Anuj Garg Vs.

Hotel Association of India (2008) 3 SCC 1 (paras No.21 & 22).

14. I have considered the rival contentions, gone through the cited

judgments and perused the Trial Court record.

15. I will first take up the position as emerging from the judgment supra

of the Supreme Court, to see to what extent the same is relevant for

adjudication of the present controversy.

16. The said judgment is in two appeals, one arising from a judgment of

the Division Bench of the Himachal Pradesh High Court and the other from

a judgment of the Division Bench of this Court. The judgment of the

Himachal Pradesh High Court was in a suit filed inter alia by the appellant /

plaintiff herein against the respondent / defendant No.1 herein, for partition

and in the alternative for joint possession of a property known as Sterling

Castle situated in Shimla. The Single Judge of the Himachal Pradesh High

Court held Sterling Castle to have been purchased benami by Maharaja

Ripudaman Singh and the same on his death having devolved on the entire

joint family and the rule of primogeniture being not applicable to the

personal property of Maharaja Ripudaman Singh since it applied only to the

property of the State. On appeal, the Division Bench of the Himachal

Pradesh High Court reversed the judgment of the Single Judge and held that

the appellant / plaintiff herein who was the plaintiff in the suit in the

Himachal Pradesh High Court had failed to establish that Sterling Castle was

purchased benami by Maharaja Ripudaman Singh from out of his personal

funds or that it was on that account his personal property. The judgment of

this Court had arisen from a suit filed by the respondent / defendant No.1

herein inter alia against the appellant / plaintiff herein for recovery of

possession of property No.34, Alipur Road, Delhi. The Single Judge of this

Court held that the appellant / plaintiff herein who was the defendant in that

suit had failed to prove that the said property had been acquired from the

personal funds of Maharaja Ripudaman Singh or was held or treated as the

personal property of Maharaja Ripudaman Singh and had decreed the suit

for possession in favour of the respondent / defendant No.1 herein. On

appeal, the Division Bench of this Court set aside the judgment of the Single

Judge and held the property to be the personal property of Maharaja

Ripudaman Singh and to have devolved on his death on all his legal heirs.

17. The Supreme Court, while affirming the judgment of the Himachal

Pradesh High Court and setting aside the judgment of the Division Bench of

this Court found, / observed / held:

(AA) Nabha was a Princely State in pre-independence India; it was

one of the three Phulkian States;

(BB) in the matter of succession to Chiefship, the rule of

primogeniture was followed by the Phulkian families; this rule was

also followed in the State of Nabha;

(CC) Maharaja Ripudaman Singh was the Ruling Chief of Nabha

State in the early twentieth century; his ruling powers were withdrawn

by the British Government in the year 1923; he was deposed from the

Gaddi in 1928 and was exiled to Kodaikanal;

(DD) that the respondent / defendant No.1 herein upon attaining

majority on 05.03.1941 became the Ruler of Nabha State by the

applicability of rule of primogeniture;

(EE) that Maharaja Ripudaman Singh resided in Kodaikanal from

1928 till his death in the year 1942;

(FF) that in or about the year 1948 i.e. after the independence of

India from British Rule, the State of Nabha acceded to the Indian

Union and along with the Rulers of seven other States agreed to merge

the State to form what came to be known as PEPSU and on

15.05.1948 executed a Covenant to the said effect with the

Government of India under Article XII whereof the Ruler of each

Covenanting State was entitled to the full ownership, use and

enjoyment of all private properties (as distinct from State Properties)

belonging to him on the date of his making over the administration of

his State to the Raj Pramukh of PEPSU and was in this regard

required to furnish to the Raj Pramukh before the 20th day of

September, 1948 an inventory of all the immovable properties,

securities and cash balances held by him as such private property;

(GG) that the respondent / defendant No.1 submitted an inventory of

his personal properties to Raj Pramukh of PEPSU and in which

inventory Sterling Castle subject matter of the proceedings at

Himachal Pradesh High Court and 34, Alipur Road, Delhi subject

matter of proceedings in this Court were included;

(HH) it was the case of the respondent / defendant No.1 that the two

properties aforesaid were his exclusive properties as he was the owner

thereof by virtue of the same being included in the list of private

properties submitted in terms of Article XII of the Covenant aforesaid;

(II) per contra, it was the contention of the appellant / plaintiff that

the said properties were always the private properties of the Maharaja

and Article XII supra of the Covenant merely prescribed a procedure

for recognition thereof and the Covenant did not create or confer a

new right and the said private properties were to devolve by the law of

inheritance and all the heirs of Maharaja Ripudaman Singh would

have a share therein;

(JJ) Maharaja Ripudaman Singh ascended to Gaddi of Nabha in

1911 and was an absolute monarch; the British Government as the

paramount power, in 1923 removed Maharaja Ripudaman Singh - he

was externed and made to go into exile from the State and took up

residence in Dehradun which was part of British India; a monetary

allowance was fixed for him but that also was only partly given; the

administration of Nabha State was taken over and carried on by the

British; four years after being removed, in 1927, he changed his name

from Maharaja Ripudaman Singh to S. Gurcharan Singh; although

removed by the British in 1923, Maharaja Ripudaman Singh was

formally deposed only on 02.02.1928;

(KK) Maharaja Ripudaman Singh died on 14.12.1942 - the Nabha

State he had been divested of 14 years earlier, and whatever little he

had left with him, formed subject-matter of his Estate (para No.48 of

the Judgment of the Supreme Court);

(LL) that the respondent / defendant no.1 ceased to be a sovereign

ruler only on 20.08.1948 on formation of PEPSU;

(MM) that in the pre-independence era though the rulers of the States

were subject to British paramountcy yet they were absolute monarchs

or sovereigns within their own territory and there was in reality no

distinction between the State property and the property privately

owned by a ruler since the ruler was the owner of all the property in

the State; "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 sovereign but in some other capacity" (para

No.58 of the Supreme Court judgment);

(NN) "the distinction drawn between public and private property

seems to be not correct ...... insofar as such a concept runs counter to

the basic attribute of sovereignty, the said distinction is not

acceptable";

(OO) that though there was no rulership after India became a

Republic on 26.01.1950, the rule of primogeniture continued /

survived and the respondent / defendant No.1 continued to be

governed thereby (para No.69 of the judgment of the Supreme Court);

and,

(PP) that the judgment of the Allahabad High Court related to

succession to S. Gurcharan Singh‟s (earlier Maharaja Ripudaman

Singh) estate which acquired the character of Hindu Joint Family.

18. The following position is thus no longer in dispute or amenable for

adjudication, in view of the inter-parties judgment supra of the Supreme

Court, even if in relation to only three properties:

(I) Maharaja Ripudaman Singh till the year 1923 was the absolute

monarch / ruler / sovereign of the erstwhile State of Nabha and

the owner of all properties in the said State and there was really

no distinction between what was the property of the State of

Nabha and which were the personal properties of Maharaja

Ripudaman Singh;

(II) Maharaja Ripudaman Singh in 1923 was removed as the ruler /

sovereign of the erstwhile State of Nabha and was also made to

leave the State of Nabha and was living first in Dehradun and

thereafter till his death in the year 1942 in Kodaikanal; during

the said time all that he was entitled to was an allowance from

the State of Nabha and which too was only partly paid;

(III) Maharaja Ripudaman Singh at the time of his death did leave

some monies and out of sale proceeds whereof property known

as Ilahi Manzil subject matter of the Allahabad High Court

proceedings was purchased and which property has been held to

be governed by the law of inheritance as applicable to

commoners and not by the rule of primogeniture;

(IV) the respondent / defendant No.1 in 1941 i.e. during the life time

of his father Maharaja Ripudaman Singh was anointed as the

ruler / sovereign / monarch of the State of Nabha and just like

his father Maharaja Ripudaman Singh was the owner of all the

properties of the State and there was no distinction between his

personal properties and the properties of the State of Nabha;

(V) upon the British rule of India coming to an end, the State of

Nabha along with seven other States merged into the State of

PEPSU which acceded to the Dominion of India and the

respondent / defendant No.1 ceased to be the monarch / ruler /

sovereign - however the rule of primogeniture continued to

apply to him; and,

(VI) since earlier there was no distinction between the personal

properties of the Maharaja and the properties of the State of

Nabha of which the respondent / defendant No.1 had ceased to

be the owner / monarch / sovereign, the Covenant aforesaid

provided for the preparation of an inventory of personal

properties of the Maharaja.

19. I am of the view that in the face of aforesaid settled legal position, for

the appellant/plaintiff to make a claim for partition of any property or for

accounts thereof against the respondent/defendant No.1, as has been done in

the suit from which this appeal arises, it was imperative for the

appellant/plaintiff to plead:

(A) that the said properties were not acquired by Maharaja

Ripudaman Singh during his regime as the

Ruler/Sovereign/Monarch of the State of Nabha and thus there

was no question of their, on the formation of the PEPSU State

and accession thereof to the Dominion of India, being treated

as the State property or their being required to be mentioned

in the list of private properties submitted by the respondent /

defendant No.1 in terms of the Covenant;

(B) that the said properties were not mentioned by the respondent

/ defendant No.1 in the list of private properties prepared in

pursuance to Clause XII of the Covenant aforesaid inasmuch

as if the said properties vest in the respondent / defendant

No.1 by virtue of being contained in the list of private

properties submitted in pursuance to the Covenant, the said

properties as per the judgment supra of the Supreme Court

would be governed by the rule of primogeniture and would be

the exclusive properties of the respondent / defendant no.1

and the appellant / plaintiff would have no share therein; and,

(C) that the properties with respect whereto the suit was being

filed were acquired by the Maharaja Ripudaman Singh after

the year 1923 when he had ceased to be the

Ruler/Sovereign/Monarch or after his demise in the year 1942

out of such estate left by Maharaja Ripudaman Singh; or and,

(D) that the said properties, though acquired during the regime of

Maharaja Ripudaman Singh as the Ruler/Sovereign/Monarch

of the State of Nabha but out of personal funds as distinct

from state funds and were intended for personal use and

distinct from state use and used as such and that the income

from the said properties was kept and accounted for separately

and not merged with the income of the State of Nabha.

20. I am in the plaint, unable to find any such pleading. Rather, the plaint

proceeds on the premise that notwithstanding the removal of Maharaja

Ripudaman Singh as the Ruler / Monarch / Sovereign of the State of Nabha

in the year 1923 and notwithstanding the respondent / defendant No.1

becoming the Ruler / Monarch / Sovereign in the year 1942 i.e. prior to the

demise of Maharaja Ripudaman Singh, whatever properties respondent /

defendant No.1 has been permitted to keep as her personal / private

properties in terms of the Covenant, would be governed by the Hindu law of

inheritance. Though the said premise on which the suit is based, does not

furnish or disclose a cause of action in law for the appellant/plaintiff to claim

the reliefs in the plaint, in the light of the judgment aforesaid of the Supreme

Court. The appellant/plaintiff, in the plaint, has not pleaded that in the

erstwhile State of Nabha any distinction was made between the personal or

the state properties or that any household funds/accounts as distinct from the

state treasury/accounts was maintained, has not pleaded date of acquisition

of any of the properties with respect to which the suit was filed; has not

pleaded that the properties though acquired during the regime as

Ruler/Sovereign/Monarch of Maharaja Ripudaman Singh, were acquired as

personal and dealt with as personal as distinct from state properties; has not

pleaded that being personal properties, Maharaja Ripudaman Singh even

after ceasing to be the Ruler/Sovereign/Monarch, continued to beneficially

hold and enjoy the said properties; has not pleaded that any of the properties

were acquired after 1923 out of savings from allowance to which only

Maharaja Ripudaman Singh was entitled to after ceasing to be the

Ruler/Sovereign/Monarch: without appellant/plaintiff pleading so, the

question of giving any opportunity to lead evidence to prove non existent

pleas does not arise. The counsels for the respondents/defendants are correct

in their contention that merely because the respondents/defendants, to put

the matter in correct perspective had pleaded so, will not tantamount to the

appellant/plaintiff taking the requisite plea. The onus to prove is on the

appellant/plaintiff and the appellant/plaintiff having not pleaded, only on

pleading whereof he could have been entitled to the relief, no purpose in

putting the suit to trial will be served.

21. I may add that though it is pleaded / argued that a letter of

administration of the estate of Maharaja Ripudaman Singh was obtained but

it was not pleaded that the properties with respect to which the suit is filed

were mentioned in the list of properties with respect whereto administration

was claimed, as the personal properties of Maharaja Ripudaman Singh.

22. Undoubtedly, the learned ADJ in the impugned judgment has used

certain expressions as "there is no evidence on record" and "there is nothing

on record to show even prima facie" and which expressions are not in

consonance with a decision under Order 7 Rule 11 of the CPC but a mere

use of erroneous expression of language would not call for setting aside of

the order which otherwise is found to be as per law. The Supreme Court in

Abdul Gafur Vs. State of Uttarakhand (2008) 10 SCC 97 and the Division

Bench of this Court in P.P.A. Impex Pvt. Ltd. Vs. Mangal Sain Mittal 166

(2010) DLT 84 have held that if on a meaningful, not formal reading, the

pleading is found to be manifestly vexatious and meritless, not disclosing a

right to sue or defend and implausible, the Court should exercise its power

and should not allow it to create an illusion and should not permit it to go to

trial. The Supreme Court in T. Arivandandam Vs. T.V. Satyapal (1977) 4

SCC 467 and in Liverpool and London S.P. and I Association Ltd. supra

and in ITC Limited Vs. Debts Recovery Appellate Tribunal (1998) 2 SCC

70 has held that proceedings of which there is no possibility of success

and/or which are deadwood and are doomed should be shot down at the

earliest stage and ought not to be permitted to clog the resources of the

Court and at the cost of other deserving matters requiring the attention of

the Courts and should not be allowed to be used as a device to harass.

23. The senior counsel for the appellant / plaintiff inspite of being

repeatedly asked has not been able to show as to how the appellant / plaintiff

in the absence of requisite pleadings has a chance of success. This lis has

already been pending for nearly four decades. The bone of contention

between the warring parties at the time of institution of the suit has been the

subject matter of other legal proceedings culminating in the judgment supra

of the Supreme Court. For the appellant / plaintiff to make the principles of

law laid down in the said judgment inapplicable to any of the properties, it

was incumbent upon the appellant / plaintiff as aforesaid to make out a case

of the same falling in the exception if any permitted in the judgment of the

Supreme Court. Not only has such exception not been pleaded, it cannot be

proved without documentary evidence. The senior counsel for the appellant

/ plaintiff during the hearing was unable to show as to how the appellant /

plaintiff even if permitted to lead evidence will prove his case to be within

such exception.

24. The procedure laid down for the decision of a civil suit, of pleadings,

filing of documents, framing of issues etc. does not permit of any surprises.

If the appellant / plaintiff can succeed only on the basis of document and not

on the basis of oral evidence and has not filed any document, no purpose

would be served in allowing oral evidence to be led. The counsels for the

respondents / defendants are also correct in their contention that the

appellant / plaintiff after seeking adjournments in the suit for several years

on the ground that the same will be governed by the judgment then expected

of the Supreme Court, cannot now after the said judgment has gone against

him, to allowed to have a second chance.

25. As far as the contention of the senior counsel for the

appellant/plaintiff, of the other family members governed by the rule of

primogeniture being entitled to grants/maintenance, the same is also without

any foundation being laid therefore in pleadings. The pleading of claim of

defendant No.12 for maintenance was also treating the properties to be

governed by the Mitakshara Law and not under the law of primogeniture.

The appellant/plaintiff, even after the judgment supra of the Supreme Court,

did not bother to amend the plaint to plead a case to the extent permissible as

per the said judgment. The appellant/plaintiff is himself to blame for the

feeling repeatedly expressed by his senior counsel, of being „left high and

dry‟. I am also unable to gauge the applicability of the judgment supra,

copies of which were handed over after conclusion of hearing, to the

controversy in hand.

26. There is thus no merit in the appeal which is dismissed with costs.

Counsels fee assessed at Rs.30,000/-.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J JANUARY 16, 2014/„gsr‟..