Maharana Shri Bhagwat ... vs Maharaj Kumar Mahendra Singh Ji
2022 Latest Caselaw 8356 Raj

(1 of 24) [CFA-420/2020]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Stay Petition No. 1325/2020

IN

S.B. Civil First Appeal No. 420/2020

Maharana Shri Bhagwat Singh (Dead) S/o His Late Highness Shri Bhupal Singh R/o Shambhu Niwas Palace, Udaipur (Dead) through Arvind Singh Mewar S/o His Late Highness Maharana Shri Bhagwat Singh Ji, aged about 75 years, R/o The Palace, Udaipur.

----Appellant

Versus

1. Maharaj Kumar Mahendra Singh Ji S/o His Late Highness Maharana Bhagwat Singh Ji, R/o Samora Bagh Palace, Udaipur

2. Shri A. Subramaniam S/o T. S. Appu Ayer, R/o Care of The Palace, Udaipur (Dead)

3. Maharani Sushila Kumari W/o Maharana Bhagwat Singh, R/o Shambhu Niwas Palace, Udaipur (Now Dead) (Vide Order Dated 10-12-2018)

4. Lrs Of Rajmata Virad Kunwar Ji W/o His Late Highness Maharana Shri Bhupal Singh Ji, R/o Sarva Rituvilas, Udaipur (Dead)

5. Shri Mahendra Singh S/o Maharana Shri Bhagwat Singh, R/o Samore Bagh, Udaipur

6. Shri Arvind Singh S/o Maharana Shri Bhagwat Singh, R/o The Palace, Udaipur.

7. Smt. Yogeshwari Kumari W/o Raja Krishnsingh Ji, R/o Ram Niwas Palace, Sitamau, Madhya Pradesh

8. Smt. Maharani Sushila Kumari Ji W/o Maharana Shri Bhagwat Singh, R/o Shambhu Niwas Palace, Udaipur (Now Dead)

9. Maharaj Kumar Shri Arvind Singh S/o Maharana Shri Bhagwat Singh, R/o Shikarbadi, Goverdhan-Vilas, Udaipur.

                                                                ----Respondents


                                         (2 of 24)                 [CFA-420/2020]


                         Connected With

S.B. Civil Misc. Stay Petition No. 1535/2020

IN

S.B. Civil First Appeal No. 547/2020 Arvind Singh (Defendant No 4) S/o Maharana Shri Bhagwat Singh, Aged About 75 Years, R/o The Palace , Udaipur

----Appellant Versus

1. Maharaj Kumar Mahendr Singh Ji S/o His Late Highness Maharana Bhagwat Singh Ji, R/o Samore Bagh Palace , Udaipur

2. Lr's Maharana Shri Bhagwat Singh S/o His Late Highness Shri Bhupal Singh, R/o Shambhu Niwas Palace , Udaipur (Dead) Through

3. Arvind Singh Mewar S/o His Late Highness Maharana Shri Bhagwat Singh Ji, Aged About 75 Years, R/o The Palace , Udaipur

4. Shri A. Subramaniam S/o T.s. Appu Ayer, R/o Care Of The Palace , Udaipur (Dead)

5. Maharani Sushila Kumari W/o Maharana Bhagwat Singh, R/o Shambhu Niwas Palace , Udaipur (Now Dead) (Vide Order Dated 10.12.2018)

6. Lr's Rajmata Virad Kunwar Ji W/o His Late Highness Maharana Shri Bhupal Singh Ji, R/o Sarva Rituvilas , Udaipur (Dead) Through

7. Shri Mahendra Singh S/o Maharana Shri Bhagwat Singh, R/o Samore Bagh , Udaipur

8. Smt. Yogeshwari Kumari W/o Raja Krishnsingh Ji, R/o Ram Niwas Palace , Sitamau , Madhya Pardesh

9. Smt. Maharani Sushila Kumari Ji W/o Maharana Shri Bhagwat Singh, R/o Shambhu Niwas Palace , Udaipur (Now Dead)

10. Maharaj Kumar Shri Arvind Singh S/o Maharana Shri Bhagwat Singh, Aged About 75 Years, R/o Shikarbadi , Goverdhan Vilas Udaipur ,at Present R/o The Palace , Udaipur

----Respondents

(3 of 24) [CFA-420/2020]

S.B. Civil Misc. Stay Petition No. 1538/2020

IN

S.B. Civil First Appeal No. 551/2020 Maharaj Kumar Shri Arvind Singh S/o Maharana Shri Bhagwat Singh, Aged About 75 Years, R/o Shikarbadi , Goverdhan Vilas Udaipur , At Present R/o The Palace , Udaipur

----Appellant Versus

1. Maharaj Kumar Mahendra Singh Ji S/o His Late Highness Maharana Bhagwat Singh Ji, R/o Samore Bagh Palace , Udaipur

2. Lr's Maharana Shri Bhagwat Singh S/o His Late Highness Shri Bhupal Singh, R/o Shambhu Niwas Palace , Udaipur (Dead) Through

3. Arvind Singh Mewar S/o His Late Highness Maharana Shri Bhagwat Singh Ji, Aged About 75 Years, R/o The Palace , Udaipur

4. Shri A. Subramaniam S/o T.s. Appu Ayer, R/o Care Of The Palace , Udaipur (Dead)

5. Maharani Sushila Kumari W/o Maharana Bhagwat Singh, R/o Shambhu Niwas Palace , Udaipur (Now Dead) (Vide Order Dated 10.12.2018)

6. Lr's Rajmata Virad Kunwar Ji W/o His Late Highness Maharana Shri Bhupal Singh Ji, R/o Sarve Rituvilas , Udaipur (Dead) Through

7. Shri Mahendra Singh S/o Maharana Shri Bhagwat Singh, R/o Samore Bagh , Udaipur

8. Shri Arvind Singh (Defendant No 4) S/o Maharana Shri Bhagwat Singh, R/o The Palace , Udaipur

9. Smt. Yogeshwari Kumari W/o Raja Krishnsingh Ji, R/o Ram Niwas Palace , Sitamau , Madhya Pardesh

10. Smt. Maharani Sushila Kumari Ji W/o Maharana Shri Bhagwat Singh, R/o Shambhu Niwas Palace , Udaipur (Now Dead)

----Respondents

For Appellant(s) : Mr. Manish Shishodia, Sr. Advocate assisted by Mr. Aslam Naushad,

(4 of 24) [CFA-420/2020]

Mr. Anwarul Ghani, Mr. Jaideep Saluja, Mr. Yash Parihar, Mr. Abhishek Mehta & Mr. Sanjay Nahar For Respondent(s) : Mr. Rajesh Joshi, Sr. Advocate assisted by Mr. Vineet R. Dave, Mr. Harshit Bhurani, Mr. Rahul Choudhary, Ms. Kamini Joshi, Mr. Devesh A. Purohit, Mr. Kamal Kishore Dave assisted by Mr. Dhirendra Pandey and Mr. Ram Niwas Haniya, Mr. Sahil Trivedi & Mr. Khet Singh Rajpurohit Mr. M.K. Mandal & Mr. Anil Mishra

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Order

June 28, 2022

The present three stay applications have been filed under

Order XLI, Rule 5 read with Section 151 C.P.C. by appellant -

Arvind Singh Mewar along with three appeals directed against

impugned Judgment and Decree dated 30.06.2020 passed by

Additional District Judge No. 2, Udaipur in Civil Original Suit No.

14/2011 (Old No. 63/1983) titled as "Maharaj Kumar Mahendra

Singh Vs. LR's of Maharana Shri Bhagwat Singh & Ors." and the

same are being decided by the common order.

Brief essential facts, for the purpose of deciding the stay

applications, are as under :-

On 22.04.1983, plaintiff - Kumar Mahendra Singh

(respondent No. 1 herein) filed a civil suit claiming partition of the

estate of Ex-Ruler of Mewar against defendants i.e. Maharaja Shri

Bhagwat Singhji Mewar (father), Maharani Smt. Sushila Kumari

(mother), Rajmata Virad Kunwar (grand-mother) and Arvind Singh

Mewar (brother), respectively. As per averments made in the

plaint, after independence of India, His Late Highness Maharana

Shri Bhupal Singh, Ex-Ruler of erstwhile Mewar State signed the

(5 of 24) [CFA-420/2020]

instrument of accession with the Government of India on

15.04.1948. As per covenant entered into, he was made entitled

to full ownership, use and enjoyment of all the properties as

distinct from State properties, belonging to him on the date of his

making over the administration of that State to the Raj Pramukh.

After death of His Highness Maharana Shri Bhupal Singh on

04.07.1955, defendant No. 1 - Maharana Shri Bhagwat Singh

adopted son of His Late Highness Maharana Shri Bhupal Singh,

inherited the properties from his father. He was also recognized

as Ruler of Udaipur with effect from 04.07.1955 in succession to

His Highness Late Maharana Shri Bhupal Singh by gazette

notification.

As per averments made in the plaint, defendant No. 2 was

wife of defendant No. 1 and natural mother of plaintiff and

defendant No. 4 and was member of the Hindu Undivided Family

(afterwards referred to as "HUF"), of which defendant No. 1 was

Karta, residing at Shambhu Niwas Palace, Udaipur. Defendant

No. 3 was adoptive mother of defendant No. 1 and grand-mother

of plaintiff and defendant No. 4 and was also member of the HUF.

Defendant No. 4 was natural born younger son of defendant Nos.

1 and 2 and was younger brother of plaintiff. His Late Highness

Shri Bhupal Singh was the last Maharana of the Mewar State.

After his death on 04.07.1955, all movable and immovable

properties of His Late Highness Shri Bhupal Singh devolved upon

defendant No. 1 according to Mitakshara Law and belonged to the

HUF. The ancestral Joint Hindu Family Properties were shown in

Annexure-A & B. Defendant No. 1 in total breach of his duty as

Karta of the HUF grossly mismanaged and dissipated large

portions of HUF property and also disposed of the same by sale or

(6 of 24) [CFA-420/2020]

otherwise transferred. The plaintiff attained majority on

13.02.1959. None of the alienations were for legal necessity or

for benefit of the estate or otherwise permissible under the Hindu

Law. Defendant No. 1 in total breach of his fiduciary duty, not

rendered accounts. He maintained exclusive control and

prevented and/or refused the plaintiff's access to the relevant

records. Over the years since 1955, defendant No. 1 alienated

substantial properties from the list enclosed as Annexure-A & B.

Defendant No. 1 had transferred various properties to two

companies floated by him viz. Lake Palace Hotels and Motels

Private Limited and Lake Shore Hotels Private Limited. The

plaintiff also mentioned in the plaint the properties parted with by

defendant No. 1. As per averments, these alienations were in

violation of the Mitakshara Law. Defendant No. 1 also transferred

and/or sold the properties of the HUF to the Government of

Rajasthan and to various outsiders, the details of which, were also

given in the plaint. Defendant No. 1 also put the monies of the

HUF in various trusts in total disregard of family tradition. All

these trusts formed by defendant No. 1 were illegal and beyond

his competence. The properties transferred to such trusts were

also liable to be partitioned. In the plaint, some details of alleged

mismanagement of movable and immovable properties were

mentioned. While making allegations of misusing the position of

Karta, plaintiff prayed for ascertaining the properties of the Joint

Hindu Family. He also prayed to declare his share in the

properties and for partition of the same by meets and bounds. He

further prayed for rendition of accounts and to allow access to

documents of the trusts and companies created out of HUF

properties. He also sought declaration to the effect that

(7 of 24) [CFA-420/2020]

properties transferred to various trusts and companies were still

properties of Joint Hindu Family. He also sought reimbursement

from respective share of defendant No. 1 in the said properties.

He also sought injunction for restraining defendant No. 1 from

disposing of and alienating or otherwise dealing with Joint Hindu

Family properties.

As per written statement, defendant No. 1 succeeded to the

properties on 04.07.1955. He owned and have the properties in

question as his absolute individual properties. Defendant No. 1

was not Karta, rather, he was absolute owner of the properties.

The existence of the HUF was also denied. Defendant No. 1 did

not inherit the properties under any Mitakshara Law. The

properties were impartible estate and it was succeeded to by the

rule of primogeniture. The plaintiff was having no right to ask for

partition and rendition of accounts. The plaintiff could not

question any sale. Defendant No. 1 also gave details of the

properties acquired by him in the lifetime of His Late Highness

Shri Bhupal Singh. He also gave particulars regarding the

properties inherited by him.

Defendant Nos. 2, 3 & 4 filed separate written statements.

Rejoinders were also filed by the plaintiff.

It would be relevant to mention here that during pendency of

the suit, Maharaja Shri Bhagwat Singhji Mewar died. During his

lifetime, he executed a Will regarding his all movable and

immovable properties on 15.05.1984. The relevant part of the

Will reads as under :-

"All my movable and immovable properties which I may be owing at the time of my demise, of whatever description, I give to and place in a

(8 of 24) [CFA-420/2020]

Trust which shall be known as MAHARANA MEWAR INSTITUTION TRUST, with directions hereinbelow contained."

In the Will, he also referred about Public Charitable Trusts

already created and provisions made for his other family

members. In the Will, he also debarred Kumar Mahendra Singh

from having any property rights. In pursuance of said Will,

probate was granted to Arvind Singh Mewar and A.

Subramaniam, the executor of the Will. On the death of

defendant No. 1, they were substituted in place of defendant No.

1. During pendency of the suit, defendant Nos. 2 and 3 also

expired. On account of death of defendant No. 3 - Rajmata Virad

Kunwar, Kumar Mahendra Singh, Arvind Singh Mewar and Smt.

Yogeshwari Kumari were substituted as her legal representatives.

The trial court after completing the trial, vide its judgment

impugned, partly allowed the suit. The trial court held that parties

to the suit were members of the HUF and defendant No. 1 -

Maharana Shri Bhagwat Singh was Karta of that family. While

allowing the claim for partition, the trial court determined 1/4th

share of each party in the suit properties. Regarding properties

transferred to the companies, trusts and other persons, the trial

court while partly deciding Issue Nos. 4 & 5 in favour of the

plaintiff, held that except properties as mentioned in Para 494 of

the judgment impugned, plaintiff was not entitled to get share in

the properties enumerated in Para Nos. 17 to 23 of the plaint.

The trial court also allowed the prayer to access the documents

regarding the properties. The trial court also held that plaintiff

was entitled to get reimbursement of value of his share in the

properties. Some properties already transferred were treated as

(9 of 24) [CFA-420/2020]

suit properties. As per judgment of the trial court, Will was

effective only in respect of the properties, which remained after

reimbursement to plaintiff against his share. The trial court also

directed to maintain status quo with respect to title and site of the

suit properties. The parties were restrained from alienating the

suit properties. Defendant No. 1/1 - Arvind Singh Mewar was

directed to preserve net profit from suit properties and restrained

to invest the same without previous permission of the Court. The

properties which were not transferred to the companies, trusts

and other private persons like Shambhu Niwas, Badi Pal, Ghasghar

etc. were ordered to be used consecutively for 4 years by each of

the party commencing from 01.04.2021. The commercial

activities in Shambhu Niwas, Badi Pal, Ghasghar, which were not

transferred, were also restrained. Objections regarding limitation

and insufficient court fees etc. raised by the defendant No. 1 were

rejected.

Aggrieved with the above judgment and decree, appellant -

Arvind Singh Mewar filed three separate appeals. The Appeal No.

420/2020 has been filed in the capacity of son of Maharana Shri

Bhagwat Singh, whereas, Appeal No. 547/2020 has been filed in

the capacity of legal heir of defendant No. 3 and Appeal No.

551/2020 has been filed in the capacity of defendant No. 4. Along

with these appeals, separate stay applications have also been

filed. Since the above appeals are directed against one common

judgment, the stay applications are being decided by this common

order.

Heard learned counsel for the parties and perused the record

of the case as also judgment impugned.

(10 of 24) [CFA-420/2020]

The first contention of learned counsel for the appellant is

that in the Mewar State, rule of primogeniture was followed, for

which plaintiff himself made admissions. He further submitted

that His Late Highness Shri Bhupal Singh signed the instrument of

accession with the Government of India. Thereafter, he was

declared the Ruler of the erstwhile Mewar State in the year 1949.

After his death, defendant No. 1 Maharana Shri Bhagwat Singh

was declared the Ruler of the Mewar State by publishing the

Notification in the gazette by the Central Government on

10.08.1955 (Ex.12). In the above circumstances, Maharana Shri

Bhagwat Singh was absolute owner of the properties inherited by

him from his father. The properties in the hands of Maharana

Shri Bhagwat Singh were not in the capacity of the Karta of the

HUF but he was holding the properties and dealt with the same as

absolute owner. The plaintiff being son of defendant No. 1 was

also given some properties by him. Defendant No. 1 created

some charitable trusts also. Before filing of the suit, defendant

No. 1 had transferred properties to the companies, Government

and other private persons. He also made provisions for other

family members of the Royal family. Learned counsel further

submitted that the properties were not coparcenary properties.

The sons and daughters of the defendant No. 1 did not acquire

any right by birth in the HUF properties. When the properties

devolved upon him, it were impartible and no one had right to

claim for partition. The plaintiff failed to prove that rule of

primogeniture was not in practice in the erstwhile Mewar State. In

the case of sovereign Ruler, the existence of impartibility and

primogeniture are presumed to be existed. The plaintiff, though,

was given all facilities and opportunities, did not come up to the

(11 of 24) [CFA-420/2020]

expectations of defendant No. 1, so visualizing the situation, he

executed a Will and created the trust, the responsibility of which,

was given in the hands of the defendant No. 4 - Arvind Singh

Mewar. The plaintiff could not challenge the rights of the

defendant No. 1 over the properties.

Learned counsel further submitted that the trial court grossly

erred in allowing the suit for partition. In this regard, he relied on

the judgment of the Hon'ble Supreme Court in the case of Partap

Singh Vs. Sarojini Devi reported in 1994 Supp (1) SCC 734,

which was also relied upon by the Hon'ble Supreme Court in the

case of Trijugi Narain (Dead) through Legal Representatives

and Others Vs. Sankoo (Dead) through Legal

Representatives and Others (Civil Appeal Nos. 5740-5741

of 2015) decided on 10.12.2019.

Learned counsel for the appellant drew attention of this

Court particularly to the following paras of the judgment rendered

in the case of Partap Singh (supra) :-

"65. 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.

66 to 73 .... xxx .....

74. Therefore, it can be said with certainty that this rule continued even after 1947-48.

75. Under Article 372 the law of succession relating to primogeniture continues until it is

(12 of 24) [CFA-420/2020]

repealed. This is the position of law relating to succession."

He also drew attention of this Court towards the following

para of the judgment rendered in the case of Trijugi Narain (Dead)

through Legal Representatives and Others (supra) :-

"16. Any property belonging to the Ruler as a sovereign, which would devolve on succession by survivorship by application of the rule of the primogeniture, would not bear an incidence of a coparcenary property. The property belonged to one person, that is, the sovereign Ruler as the very concept of sovereignty implies absolute authority, power and ownership that cannot be subjected to legal action of partition or injunction by another person. Consequently, estates/ properties of the sovereign Ruler were impartible even though the property was ancestral. The male members who had the right of survivorship, could not claim the right to partition or the right to restrain alienation by the sovereign Ruler as they had no enforceable right that could be legally remedied. In short, the right or interest of sons or other members of the coparcenary was inconsistent with sovereignty as a sovereign Ruler could not be subjected to the municipal law and the municipal courts.

........ Thus, as per the custom relating to impartible estates and the rule of primogeniture, the Raja or Ruler of a princely state would not hold the estate as the karta or coparcener, but as the absolute owner and the estate would be impartible. The son(s)

(13 of 24) [CFA-420/2020]

would not acquire any interest in the impartible estate by birth nor could they seek partition or restrain alienation. On the death of the Ruler, the succession to the rulership, as also the impartible estate, was not under the Mitakshara law of survivorship but governed by the rule of primogeniture. There was, however, moral liability for providing maintenance to others, be it the younger brothers or family members, which later on, by way of custom, virtually became an obligation.

The Hon'ble Supreme Court in Para 17 of the judgment

rendered in the case of Trijugi Narain (Dead) through Legal

Representatives and Others (supra), while referring the judgment

of Privy Council, observed as under :-

17. The Privy Council in Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards and Others8 after referring to the earlier case law had held that a holder of an impartible estate can alienate the estate by way of a gift inter-vivos, or even by a will, though the family is undivided; the only limitation on his power would flow from the family custom to the contrary, or from the condition of the tenure which has the same effect......"

The second contention raised by learned counsel for the

appellant is that trial court passed the order in violation of

previous orders and judgments passed by this Court. In this

regard, he drew attention of this Court towards order allowing

Annexure-A & B filed along with plaint as secondary evidence,

whereas, in this regard, this Court in S.B. Civil Writ Petition

(14 of 24) [CFA-420/2020]

No. 7911/2014 (Maharana Mahendra Singh Mewar Vs. Arvind

Singh & Another) decided on 16.01.2015 held the above

documents not admissible as secondary evidence. Learned

counsel for the appellant further submitted that trial court erred in

relying on the admissions, which were withdrawn by the appellant

- Arvind Singh Mewar. The judgment dated 11.06.1993 passed by

this Court in S.B. Civil Misc. Appeal No. 179/1986 was still in force

until final decree was drawn. Any contrary order to the above

referred judgment will be without jurisdiction. The judgment

impugned herein was operating against the companies, which

were not party in the suit. He further submitted that impugned

judgment and decree was beyond the jurisdiction. The trial court

also committed illegality in issuing directions to hand over

possession of the property Shambhu Niwas in a preliminary

decree. There were contrary findings in the judgment also.

Learned counsel for the appellant further submitted that balance

of convenience is also in favour of the appellant. In absence of

staying effect and operation of the order and blanket stay order

over the property already transferred, huge financial loss will be

suffered by them. On account of wide publicity of the impugned

order, companies and trusts are facing great difficulties. He

further submitted that appeals have already been admitted. The

hearing of the appeal may take time. On the above grounds,

learned counsel for the appellant prayed to stay effect and

operation of the impugned judgment.

On the other hand, learned counsel for respondent No. 1

while relying on following judgments of the Hon'ble Supreme

Court in the cases of Bhaiya Ramanuj Pratap Deo vs. Lalu

Maheshanuj Pratap Deo and Others reported in AIR 1981

(15 of 24) [CFA-420/2020]

Supreme Court 1937; Kunwar Shri Vir Rajendra Singh vs.

The Union of India and others reported in 1969(3) Supreme

Court Cases, 150 and Talat Fatima Hasan through her

Constituted Attorney Syed Mehdi Husain vs. Syed Murtaza

Ali Khan (dead) by Legal Representatives and Others

reported in (2020) 15 Supreme Court Cases 655, contended

that in the Mewar State, rule of primogeniture was never followed.

Referring to the impugned judgment, learned counsel for the

respondent No. 1 submitted that defendant No. 1 admitted the

properties to be of Hindu Undivided Family. In this regard, he also

referred the declarations made before the Income Tax Department

by defendant No. 1. Learned counsel for the respondent No. 1

further submitted that after independence, every citizen was a

common man. By covenant, only personal rights such as

privileges and dignities were guaranteed. The Government

guaranteed succession according to the law and customs to the

'Gaddi' of the estate and to the personal rights, privileges,

dignities and title of the appellant and not to the right of

properties. He further submitted that act of recognition of

rulership was not, as far as Government is concerned, associated

with recognition of the right of private properties. The plaintiff

successfully established existence of the Hindu Undivided Family

amongst the parties and he was having right to claim partition

according to the personal law. Provisions of the Act of 1956 also

recognized custom regarding law of succession. Learned counsel

for the respondent No. 1 further submitted that Arvind Singh

Mewar himself filed the suit for partition, which made it clear that

he admitted that the properties were partible. The rule of

primogeniture also restricted execution of Will. He further

(16 of 24) [CFA-420/2020]

submitted that Arvind Singh Mewar took different stands every

time. He could not withdraw admission regarding nature of the

properties, once made by him in whatever capacity. He further

submitted that appellant cannot argue on behalf of the companies

or trusts as they were already deleted from the array of parties.

He also submitted that Maharaja Shri Bhagwat Singh was not last

ruler. The last ruler was His Late Highness Shri Bhupal Singh.

Learned counsel for the respondent No. 1 also submitted that

appellant failed to establish any custom, which recognized the rule

of primogeniture. There was ample evidence on record to

suggest that partly partition of properties was made. While

deciding the application seeking temporary injunction, prima facie

case was found in favour of the plaintiff - Kumar Mahendra Singh.

Now, a contrary view to the effect that prima facie case is in

favour of the appellant cannot be taken. The issuance of probate

did not decide the rights of the parties in the property. It is just

recognition of genuineness of the Will. To substantiate his

arguments, learned counsel for the respondent No. 1 drew

attention of this Court towards definition of 'Ruler' provided in

Clause (22) of Article 366 of the Constitution of India after

amendment.

Learned counsel for the respondent No. 1 drew attention of

this Court towards relevant portion of Paras 6, 9 & 10 of the

judgment of Hon'ble Supreme Court in the case of Kunwar Shri Vir

Rajendra Singh (supra), which reads as under :-

"6. ....It is apparent that there is no notification by virtue of which the Ruler became entitled to private properties. The notification which recognised the Ruler did

(17 of 24) [CFA-420/2020]

not state that the Ruler thereby became entitled to private properties of the late Ruler. Mr. Attorney-General appearing for the Union also made it clear that no right to property flowed from the Government Order of recognition of Rulership. It is manifest that the right to private properties of the last Ruler depends upon the personal law of succession to the said private properties. The recognition of the Ruler is a right to succeed to the gaddi of the Ruler. This recognition of Rulership by the President in an exercise of political power vested in the President and is thus an instance of purely executive jurisdiction of the President. The act of recognition of Rulership is not, as far as the President is concerned, associated with any act of recognition of right to private properties. In order to establish that there has been an infringement of rights to property or proprietary rights, the petitioner has to establish that the petitioner owns or has a right to property which has been infringed by the impugned act.

7&8 ... xxx .....

9. .....The recognition of Rulership is one of personal status. It cannot be said that claim to recognition of Rulership is either purely a matter of inheritance or a matter of descent by devolution. Nor can claim to recognition of Rulership be based only on covenants and treaties......

10. It has to be recognised that the right to private properties of the Ruler is not embraced within clause (22) of Article 366 of

(18 of 24) [CFA-420/2020]

the Constitution which speaks of recognition of a Ruler by the President."

Relying upon the above judgment, learned counsel for the

respondent No. 1 submitted that issue of succession can be

decided by the personal law and terms of covenant did not confirm

any succession rights.

In the case of Bhaiya Ramanuj Pratap Deo (supra) cited by

the learned counsel for the respondent No. 1, the Hon'ble

Supreme Court held as under :-

"In our opinion there is no justification for this argument. The law regarding the nature and incidents of impartible estate is now well settled. Impartility is essentially the creature of custom. The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth, and therefore, have no right of partition having regard to the very nature of the estate that is impartible. Secondly, they have no right to inerdict alienation by the head of the family either for necessity or otherwise."

Another judgment referred by learned counsel for the

respondent No. 1 was in the case of Talat Fatima Hasan through

her Constituted Attorney Syed Mehdi Husain (supra). In this case,

the Ex Ruler, Nawab Raza Ali Khan died intestate on 06.03.1966.

There was dispute regarding succession to his property. The

question for consideration before the Hon'ble Supreme Court was

that whether succession to the properties declared by an erstwhile

ruler to be his private properties in the agreement of accession

with the Dominion of India will be governed by the rule of

succession applicable to the "Gaddi" (rulership) or by the personal

(19 of 24) [CFA-420/2020]

law applicable to the ruler". In this case, the Hon'ble Supreme

Court while deciding the aforesaid question, referred Para 166 of

the judgment rendered in the case of Visheshwar Rao Vs. State

of M.P. reported in AIR 1952 SC 252, which reads as under :-

"166. It is true that by the covenant of merger the properties of the petitioner became his private properties as distinguished from properties of the State but in respect of them he is in no better position than any other owner possessing private property. Article 362 does not prohibit the acquisition of properties declared as private properties by the covenant of merger and does not guarantee their perpetual existence. The guarantee contained in the article is of a limited extent only. It assures that the Rulers' properties declared as their private properties will not be claimed as State properties. The guarantee has no greater scope than this. That guarantee has been fully respected by the impugned statue, as it treats those properties as their private properties and seeks to acquire them on that assumption."

Das, J. in his concurring judgment held as follows:

"181. .... The guarantee or assurance to which due regard is to be had is limited to personal rights, privileges and dignities of the Ruler qua a Ruler. It does not extend to personal property which is different from personal rights."

(20 of 24) [CFA-420/2020]

In the case of Talat Fatima Hasan through her Constituted

Attorney Syed Mehdi Husain (supra), the judgment rendered in

the case of K.S.V.R. Singh vs. Union of India & ors. (Dholpur case)

was also referred and relied upon. The judgment of 'the

Travancore case', and 'the Nabha case' was distinguished on the

ground that in those cases, suit had been filed in the lifetime of

the Rulers. The Hon'ble Supreme Court held that in those

matters, the Court did not decide the question as to whether

impartible estate continued to exist after the ruler ceased to be a

ruler. In Para 37 of the judgment, the Hon'ble Supreme Court

referred Para 288 of the judgment rendered in the Princes Privy

Purses case, which reads as under :-

"288. .....The choice of a person as a Ruler to succeed another on his death was certainly not left to the mere caprice of the President. He had to find out the successor and this he could do not by applying the ordinary rules of Hindu Law or Mohamadan Law but by the law and custom attaching to the Gaddi of a particular State."

Finally, the Hon'ble Supreme Court held that the Muslim

Personal Law (Shariat) Application Act, 1937 will apply and since

Nawab Raza Ali Khan was a Shia, his estate will devolve upon his

heirs under the Muslim personal law, as applicable to Shias.

Referring the above judgment, learned counsel for the

respondent No. 1 submitted that the properties inherited by

defendant No. 1 were not through rule of primogeniture but he

succeeded the properties according to Hindu Law.

(21 of 24) [CFA-420/2020]

Learned counsel for the respondent No. 3/3 submitted that

the main controversy regarding impartibility of the estate cannot

be decided at this stage. The controversy is subject of the

decision of main appeals. The trial court issued directions in Para 9

of the order to preserve the property till disposal of the appeal,

whereas, direction in Para 10 of the order was enforced

throughout continuance of the trial of the suit. Regarding

implementation of directions in Para 11, learned counsel for the

respondent submitted that for this, in alternative, sufficient

security to reimburse the benefits availed by the appellant may be

taken from the appellant. He further submitted that plaintiff did

not aver about the conditions required for getting stay under the

provisions of Order XLI, Rule 5 C.P.C. Learned counsel for the

respondent further submitted that till decision of these appeals,

proceedings for preparing final decree should not be stayed,

however, passing of the final decree may be stayed.

Having regard to the submissions made by learned counsel

for the parties and after perusal of the record, it is not in dispute

that His Late Highness Maharana Shri Bhupal Singh signed the

instrument of accession with the Government of India resulting

into merger of the erstwhile Mewar State in the Rajasthan State

so also in India. It is also not in dispute that after death of His

Late Highness Maharana Shri Bhupal Singh, defendant No. 1

Maharana Shri Bhagwat Singh was declared as a Ruler in

succession to His Late Highness Maharana Shri Bhupal Singh by

the Central Government through Notification dated 10.08.1955. It

is also not in dispute that properties of the erstwhile Mewar State

devolved upon the defendant No. 1 - Maharana Shri Bhagwat

Singh and he not only used the properties but also made many

(22 of 24) [CFA-420/2020]

transactions regarding his properties during his lifetime. The main

controversy is regarding nature of his rights over the property that

whether he was absolute owner and empowered to deal with the

property as he wished or he was holding the properties in the

capacity of Karta of the HUF and all other members of the HUF got

coparcenary rights in the properties by birth and had right to

restrict the Karta of the HUF from alienating the property and also

to claim partition. The trial court decided this issue in favour of the

plaintiff, against which, appellant has raised substantial grounds

for consideration in the appeals, which have already been

admitted. While deciding these appeals, this Court has to decide

not only issues framed by the trial court but also has to answer

the following questions :-

a. whether provisions of Section 5(ii) of Hindu Succession

Act 1956 will come in picture after death of Maharana Shri

Bhagwat Singh, who was declared Ruler by the Central

Government in succession to last Ruler His Late Highness Shri

Bhupal Singh.

b. whether after issuance of probate in favour of Arvind

Singh Mewar, plaintiff was required to seek cancellation of will.

The above controversy cannot be decided in stay application.

There is no dispute that the controversy raised by both the parties

requires consideration and decision in accordance with law. The

appellant has prima facie set out a case to stay execution of the

impugned judgment and decree. If effect and operation of the

judgment and decree is not stayed, then irreparable loss would be

caused to the appellant. The appellant is in possession of the suit

properties. The provisions for preservation of the suit properties

have already been made while deciding temporary injunction

(23 of 24) [CFA-420/2020]

application filed by the plaintiff. Till decision of the appeals,

execution of the judgment and decree of the trial court cannot be

permitted to take place. The effect and operation of the impugned

judgment and decree can be stayed subject to the same

conditions, which were imposed upon the defendant No. 1 in the

temporary injunction petition. There is no dispute with the legal

proposition that preliminary decree to the extent that it declares

the share of each party, is not executable one, whereas, major

directions which make preliminary decree executable have been

given by the trial court. If that directions are allowed to be

implemented, then it will be against the spirit of provisions of

Order XLI, Rule 5 read with Order XXXIX, Rule 1 & 2 C.P.C. The

purpose behind interim stay is to preserve the properties in

question till the decision of the case. The great inconvenience will

be caused to the appellant if judgment and decree impugned is

executed. While implementing the judgment and decree

impugned, the possession of the suit property 'Shambhu Niwas'

will have to be handed over consecutively to the parties. It will

certainly create further litigation. The judgment and decree

impugned will also adversely affect the functioning of the

companies and trusts to some extent, which were not party before

the trial court.

Considering the overall facts and circumstances of the case,

the stay applications filed under Order XLI, Rule 5 read with

Section 151 C.P.C. by the appellant deserve to be allowed.

In the result, while allowing the stay applications filed under

Order XLI, Rule 5 read with Section 151 C.P.C., effect, operation

and execution of the Judgment and Decree dated 30.06.2020

passed by Additional District Judge No. 2, Udaipur in Civil Original

(24 of 24) [CFA-420/2020]

Suit No. 14/2011 (Old No. 63/1983) titled as "Maharaj Kumar

Mahendra Singh Vs. LR's of Maharana Shri Bhagwat Singh & Ors."

shall remain stayed till final decision of the appeals. However, it is

made clear that till decision of the appeals, appellant shall be

bound to obey directions issued by the District Judge, Udaipur

vide Order dated 02.12.1985 passed in Civil Misc. Case No.

80/1983 "Maharaj Kumar Mahendra Singh Ji Vs. Maharana

Bhagwat Singh Ji (Expired) & Ors." and confirmed with some

modification by this Court vide Judgment dated 11.06.1983

passed in S.B. Civil Misc. Appeal No. 179/1986 "Shri Mahendra

Singh Vs. Shri Arvind Singh & Ors.".

(RAMESHWAR VYAS),J

Inder/PS-

Powered by TCPDF (www.tcpdf.org)