9911796707
TMI Blog1991 (11) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... s 1 to 34 (respondent No. 1 being the defendant No. l in the suit) were members of the Travancore Royal Family. This family according to the appellant was an undivided marumakkathayam tarwad governed by Marumakkathayam Law as modified by custom and usage in respect of succession, inheritance and some other matters and that respondent No. l had been managing the properties of the tarwad in his capacity as its karnavan. According to him the properties in suit being tarwad properties were liable to be partitioned among the appellant and defendants 1 to 34 on per capita basis and the appellant was entitled to a 1/35 share. Some of the properties had been alienated by respondent, No. 1 but the appellant in place of challenging such alienations preferred to seek relief for accounting with regard to the proceeds of the alienations and for division of those proceeds among the members of the tarwad. He also prayed for a decree with regard to his share in the income of the tarwad properties which according to him were received by respondent No. l as karnavan. Some of the landed properties had been the subject-matter of the ceiling proceedings under the Kerala Land Reforms Act, 1963. In those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 on the one hand and of defendant No. 12 on the other. It was also asserted that the branch of defendant No. 12 made a further partition in which the appellant who was a member of that branch was given an individual share. According to Respondent No. 1 after the partition of the properties of Sreepadom on 13th July, 1971 there ceased to be any undivided tarwad. He asserted that the properties in suit belonged to him absolutely who before the integration of the States of Travancore and Cochin was the sovereign Ruler of Tranvancore and in that capacity held all the properties including the properties in suit, there being no distinction at that time between the properties of the Ruler and that of the Government. The properties in suit which according to respondent No. 1 were held by him as sovereign as his own were retained by him for himself absolutely when he surrendered the sovereignty of the State. Respondent No. 1 further asserted that he was competent to deal with these properties in any manner as he liked and his action in this behalf was beyond challenge. Subsequently, an additional written statement was also filed by respondent No. 1 wherein it was inter alia pleaded that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the decree of the trial court the appellant preferred A.S. No. 210 of 1979 in the High Court whereas two cross-objections were filed, one by defendant No. 12 and the other by defendant Nos. 32 to 34. The appeal as well as the cross objections were dismissed by the High Court. Against this decree of the High Court the appellant has preferred Civil Appeal No. 534 of 1983 whereas defendant Nos. 32 to 34 have preferred Civil Appeal No. 535 of 1983. Yet another Civil Appeal being Civil Appeal No. 536 of 1983 was preferred by defendant No. 12. Since, however, defendant No. 12 died during the pendency of that Civil Appeal and no consequential steps were taken, the said appeal by order dated 16th August, 1991 passed by this Court was abated. 5. Since it has not been seriously challenged before us that respondent No. 1 was a sovereign ruler of Travancore till 1st July, 1949 we find it unnecessary to dwell upon the question as to how sovereignty came to be vested in the rulers of Travancore. As was agreed by the parties before the High Court as also before us the crucial question for determination is about the title of the appellant over the properties in suit In other words, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when a custom is found to exist it supersedes the general law which however still regulates all beyond the custom. It was also held that the Zamindari which was in dispute in that case being the ancestral property of a joint family though impartible the successor fell to be designated according to ordinary rule of Mitakshra law and that the respondent in that case being the person who in a joint family would, being the eldest of the senior branch, be the head of the family was the person designated in this impartible raj to occupy the Gaddi. In so far as the proposition that when a custom is found, to exist it supersedes the general law which, however, still regulates all beyond the custom is concerned no exception can be taken to it. In regard to the other proposition it may be pointed out that the dispute in that case was about the succession to the Zamindari of Agori Barhar as is apparent from the very first sentence of the judgment even though the ancestors of the parties were referred to as Rajahs. It was apparently not a case of a sovereign ruler. The other cases on which reliance was placed in this behalf are these: 8. In Shiba Prasad Singh v. Rani Prayag Kumari Debi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate and other properties left by Raja Durga Prasad. This case too does not appear to be a case of a sovereign ruler as is apparent from the recital of facts inter alia to the effect that On 27th August, 1915 Raja Durga Prasad made a will whereby he purported to dispose of some of the properties in dispute and that the will was governed by the Hindu Wills Act, 1870 and several sections of the Indian Succession Act, 1865, were thereby made applicable to wills governed by that Act. Had it been a case of a sovereign ruler neither of these Acts would have been applicable to him. 10. In Commissioner of Income-tax, Punjab, North-West Frontier and Delhi Provinces, Lahore v. Dewan Bahadur Dewan Krishna Kishore, Rais, Lahore AIR 1941 P.C. page 120, it was held that holder of an impartible estate receiving income from house property was not owner of the property and such income, therefore, was not assessable under Section 9 of the Income Tax Act, 1922 and further that income from impartible estate of holder of such estate was income of individual and not income of undivided family of himself and his sons for purposes of the said Income-tax Act. This again was apparently not a case of a so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(Supp.) SCC 175, it was held that the junior members of the 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. The only incidence for joint property which still attaches to the joint family property is the right of survivorship which, of course, is not inconsistent with the custom of impartibiliy. Referring to the facts of the case it was pointed out in paragraph 8 of the Report that there was ample evidence on record to show that the inam lands although impartible were always treated by members of the family as part of the joint family properties and the succession to the inam was by the rule of survivorship as modified by the rule of lineal primogeniture. It was also clear that the junior members were in joint enjoyment of the inam lands and the evidence showed that the properties acquired by the inamdar for the time being from out of the income of the inam such as the two houses at Indore, and other properties were always dealt with as part of the joint family property. 15. In Thakore Shri Vinayasinhji (Dead) by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and the overriding effect of Section 4 'shall devolve by testamentary succession, as the case may be, under this Act and not according to the Marumakkathayam or Nambudri Law as contemplated by Sub-section (1) of Section 7 read with the Explanation thereto which reads as hereunder: 7. Devolution of interest in the property of a tarwad, tavazhi, kutumba, kavaru or illom:- (1) When a Hindu to whom the marumakkattayam or nambudri law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be, his or her interest in the intestate succession, as the case may be, under this Act and not according to the marumakkattayam or nambudri law. Explanation:- For the purposes of this sub-section, the interest of a Hindu in the property of a tarwad, tavazhi or illom shall be deemed to be the share in the property of the tarwad, tavazhi or illom, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the tarwad, tavazh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the applicability of these two Acts would depend as indicated earlier on the finding of the crucial question in regard to the nature of the properties in suit. 21. Before adverting to the question referred to above we consider it appropriate to deal with another submission made by learned Counsel for the appellant that the properties in suit constituted Sthanam and Respondent No. 1 was a Sthani thereof and consequently the provisions of Sub-section (3) of Section 7 of the Hindu Succession Act, 1956 would be applicable to the properties in suit. This plea was raised before the High Court also and was repelled inter alia by holding: Before we look into the law on this subject we have to consider whether there is any foundation for such a case in the pleadings of the parties. We found in the pleadings no reference to the office of the Ruler being that of a Stani. Stanom is a peculiar institution familiar in the northern part of the Kerala State, namely, Malabar and is not a well-known institution in Travancore. The institution of Stanom has peculiar incidents. Merely because a person is an eldest member of the family he does not become a Stani. We are mentioning this only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided upon the evidence of usage adduced, and the onus is of course upon those who assert that any particular property belongs to an individual and not to the family to which the individual belongs. It is not sufficient to make a stanom that properties are temporarily allotted to a person filling a particular position; the evidence must be sufficient to prove a long continued usage recognising the property in question as belonging to the person filling a particular position without any interest in the members of the family to which the person holding the position belongs and without any power in them to terminate the arrangement. Is it open to a family to constitute a fresh stanom? The answer would probably be the same as to the question whether it is open to the members of a family governed by the Mitakshara Law to constitute certain property impartible and vest it in a single individual with succession according to the rule of primogeniture. In both cases the answer must be in the negative. Impartible estates and sthanams are recognisable only on the ground of custom. They are held not according to the rules of the common law of the land but in a manner different from such rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is not of very great importance and the Court has to come to a decision on the consideration of all materials . This view has been reiterated in Narayan Bhagwantarao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors. and several other subsequent decisions and is by now settled law. 29. Now we may consider the legal effect of respondent No. 1 being a sovereign ruler of Travancore till he surrendered the sovereignty as indicated earlier. In Ameer-un-Nissa Begum and Ors. v. Mahboob Begum and Ors. dealing with the efficacy of certain 'Firmans' issued by the Nizam of Hyderabad who was a sovereign ruler, it was, with regard to the powers of the Nizam, held:- It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature, the supreme judiciary and the supreme head of the executive, and there was no constitutional limitation upon his authority to act in any of these capacities. The 'Firmans' were expressions of the sovereign will of the Nizam and they were binding in the same way as any other l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is enured after the Constitution and whether the respondent's right to possession, assuming he had any, revived when the Constitution came into being. We are clear that the Constitution effected no change. It was conceded that the Nizam had power to confiscate the property and to take it away from the respondent 'in toto' and it was conceded that if he had done so the rights so destroyed would not have revived because the Constitution only guarantees to a citizen such rights as he had at the date it came into force; it does not alter them or add to them: all it guarantees is that he shall not be deprived of such rights as he has except in such ways as the Constitution allows. But if the Nizam could take away every vestige of right by a Firman he could equally take away a part of them and at the date of the passing of the Constitution the respondent would only have the balance of the rights left to him and not the whole, for what applies to the whole applies equally to the part. Therefore, even if we accept all the respondent's facts, the position would still be that at the date the Constitution came into force he had no right to immediate possession; the utmos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of common knowledge that at the relevant time the Maharana of Udaipur was an absolute monarch in whom vested all the legislative, judicial and executive powers of the State. In the case of an absolute Ruler like the Maharana of Udaipur, it is difficult to make any distinction between an executive order issued by him or a legislative command issued by him. Any order issued by such a Ruler has the force of law and did govern the rights of the parties affected thereby. 33. In Civil Appeal No. 242 of 1955 Mangal Singh and Ors. v. The Legal Remembrancer, Punjab and Ors. decided by this Court on 23rd February, 1960 a plea questioning the validity of certain orders passed by the Maharaja of Patiala with regard to a Gurdwara had been raised. An issue about the jurisdiction of the Civil Court to adjudicate upon the said plea was framed While dealing with the plea a Constitution Bench after referring to certain earlier decisions of this Court held: It cannot be, and has not been, disputed that the position of the Maharaja of Patiala before the coming into force of the Constitution was the same as that, for example, of the Maharaja of Jammu and Kashmir, or the Maharao of Kotah, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reign Estate, it is difficult to see how the ordinary incidents of ancestral coparcenary 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 alienations 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 these 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 his sovereign 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 36. It has been brought to our notice by learned Counsel for Respondent No. 1 that Civil Appeal Nos. 1358-1359 of 1969 were filed in this Court against the aforesaid judgment of the Gujarat High Court which were initially dismissed on 29th March, 1974 with certain observations. Subsequently, two Review Petitions bearing Nos. 45-46 of 1974 were filed which were disposed of on 17th March, 1976 by the following order: The order dated 29-3-1974 in C.A. No. 1358-59/69 is recalled and the following order is passed by consent of parties: Both the C.As. 1358-59/69 had abated when they were heard. They are therefore dismissed. There will be no order as to costs. 37. 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 English Reports Page 340. In the foot note of that judgment at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visible chattel or a debt are assigned to the Crown and a subject, or where two persons have a joint property in such a chattel or debt and one person assigns his share to the Crown, or where a bond is made to the Crown and a subject, the Crown takes the whole, for it cannot be a partner with a subject; nor can the Crown become a joint owner of a chattel real by grant or contract, but takes the whole. 39. 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. On the principle that a sovereign never dies and succession to the next ruler takes place without there being a hiatus there could be no change in the legal status of the properties held by one ruler and his successor. As seen above, one incidence of 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. The other inci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nis 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 No. 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. We are dealing with an appeal and as has been pointed out by this Court in Thakur Sukhpal Singh v. Thakur Kalyan Singh it is the duty of the appellant to show that the judgment under appeal is erroneous. 43. The following extract from pages 190 to 192 of Kerala District Gazetteers, Trivandrum by A. Sreedhara Menon will give a glimpse about the nature of property held by the Attingal Ranis. Early in his reign Marthanda Varma assumed direct control over the so-called Attingal 'Queendom'. This was not an act of annexation or conquest, but Nagam Aiya has described the event as the amalgamation of Travancore with Attingal . There has been some misunderstanding among contemporary and later writers in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as foreign, and led to the notion that they had sovereign rights over Attingal. But in reality the Kingdom of Venad extended from Kanyakumari in the south as far as Kannetti in the north, and there was no kingdom or principality intervening within its limits. When Marthanda Varma decided to assume direct control over the estates of Attingal and thus deprive the Rani of some of her rights, he was not interfering in the affairs of a sovereign State. As the head of the royal family and the ruler of the State, he had every right to interfere in the affairs of a part of his kingdom, The Rani of Attingal had neither territory nor subjects, except in the sense that the people of Venad paid respects to her as a senior member of the ruling family. What she possessed was nothing more than the control over the revenues of the estates and an outward status and dignity. Whatever powers she exercised were those delegated to her by the head of the family and the sovereign of the State. 44. The historical perspective referred to above runs counter to the case of the appellant with regard to the rights of respondent No. 1 over the properties in suit even if it may be accepted that at some point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o furnish a list of such properties which he wanted to retain as personal properties and that he having furnished such a list which included the properties in suit and the same having been approved by the Government of India the properties in suit continued to be held by him as his personal properties in the capacity of being their absolute owner. We find substance in both these contentions. 48. As regards Exhibit B-3 it would be seen that this deed of partition was executed by the then living members of the Royal Family. Even the appellant who was a minor at that time was represented by his mother. This deed starts with the assertion that the parties to it are members of the joint Hindu Kshatria family known as 'Sreepadom Palace' which by prerogative is the Royal House of Travancore. It then proceeds to describe the extent of the properties held by the Sreepadom and states: The lands and other immovable properties mentioned in the Schedule attached hereto have been inherited, held and enjoyed by our family, the aforesaid Sreepadom Palace, as Sreepadom Palace Private Properties and the family continues to have exclusive, absolute and undisputed title of ownership, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the properties in dispute were not joint family properties. In this context not much significance can be attached to paragraph 19 of the deed of partition on which reliance has been placed by learned Counsel for the appellant. The said paragraph reads as hereunder: If any property over which the Sreepadom Palace has ownership and remaining as Sreepadom Palace Private property has been omitted to be included in this partition, and the omission is detected at a subsequent date it will also be shared equally between the two branches by mutual agreement to be entered upon as and when such necessity arises. In our opinion, paragraph 19 referred to above was incorporated in the deed of partition in a routine manner it having become almost customary to include such a clause by way of abundant caution. As already indicated above and particularly keeping in view the extent and nature of the properties in dispute it is unbelievable that the parties to the deed of partition were not aware about the existence of these properties and left it to be partitioned in future as and when the omission is detected . 52. There is another circumstance which supports this contention. Some of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to be declared surplus and was to vest in the State Government. In our opinion, keeping in view the penal consequence of not filing a return namely being deprived of retaining land even to the extent of the ceiling area the circumstance that the appellant or any member of the family did not file a return is indicative of the fact that they did not consider these lands to belong to the joint family. 54. At this place, in order to keep the record straight we wish to point out that subsequently an application was made by the appellant under Sub-section (9) of Section 85 of the Kerala Land Reforms which inter alia provides: The Taluk Land Board may, at any lime, set aside its order under Sub-section (5) or Sub-section (7), as the case may be, and proceed afresh under that sub-section if it is satisfied that- (a) the extent of lands surrendered by, or assumed from, a person under Section 86 is less than the extent of lands which he was liable to surrender under the provisions of this Act, or (b) the lands surrendered by, or assumed from, a person are not lawfully owned or held by him; or (c) in a case where a person is, according to such order, not liable to surrender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her documentary evidence to prove the source of acquisition of these properties had been produced on behalf of the appellant, even PW.1, the father of the appellant who appeared as a witness on his behalf had to admit that he did not know whether these properties were settled in favour of anyone and that he had not seen any record to show that these properties belonged to the tarwad as alleged in the plaint. On the other hand, respondent No. 1, inter aha, produced settlement registers marked as Ex. B-10 to B-14, State Budget Ex. B 15 and.B-16, the Kandukrishi Proclamation dated 27th May, 1949 and Circular Ex. B-30 with regard to the properties shown in Schedule A to the plaint indicating that they belonged to the Sirkar or State. He also produced Ex.B-17 indicating that maintenance of the palace was being done by the State with the funds of the State exchequer. With regard to securities and shares in the name of respondent No. 1 and the items of jewellery in his custody, the Trial Court has held that there was nothing on the record to show that they had been acquired with tarwad funds or that the tarwad had any interest in the same. The fact that the lacuna pointed out by the Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, Ministry of States, in its part-VII dealing with 'Settlement of Ruler's Private Properties' contains in paragraphs 156 and 157, inter alia, the following statement: 156. The Instruments of Merger and the Covenants establishing the various Unions of States, are in the nature of over-all settlements with the Rulers who have executed them. While they provide for the integration of States and for the transfer of power from the Rulers, they also guarantee to the Rulers privy purse, succession to gaddi, rights and privileges and full ownership, use and enjoyment of all private properties belonging to them, as distinct from State properties. The position about the privy purses guaranteed or assured to the Rulers is set out in details in Part XI. The provisions of the Constitution bearing on the rights, privileges and dignities of Rulers and their succession to their respective gaddis are also explained in that Part. So far as their Private properties are concerned, the Rulers were required to furnish by a specified date inventories of immovable property, securities and cash balances claimed by them as private property. The settlement of any dispute arising in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle XI to furnish to the Raj Pramukh before May 1, 1948 an inventory of all immovable properties, securities and cash balances held by him as such private property. Conceivably, on a dispute arising as to whether any item of property was or was not the private property of the Ruler and hence State property, it was required to be referred to a Judicial Officer to be nominated by the Government of India and the decision of that officer was to be final and binding on all parties concerned, xxx xxx xxx xxx xxx The Factual undenied position is that the Ruler of Chattarpur on July 5, 1948 (vide Ex. D-13-5) submitted a list to the Raj Pramukh of the United State of Vindhya Pradesh of his private properties, and in the said list the house in dispute, namely, Gulab Rai Wala house, was shown as the private property of the Ruler (by the then Maharaja Shri Bhawani Singh Je Deo). In the following month, on August 25, 1948, the said Maharaja Shri Bhawani Singh Ju Deo made a gift of the house in dispute in favour of his father-in-law Dewan Shanker Pratap Singh (now deceased and represented by his legal representatives- appellants). His gift has become the subject matter of dispute in the suit, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it necessary to deal with them. Neither any principle of law nor any authority has been brought to our notice in view whereof personal properties of respondent No. 1 could get transformed into joint Hindu family properties wherein the appellant could acquire an interest. Even if we proceed on the basis that the personal properties held by respondent No. 1 continued to retain the character of impartibility and they became partible subsequently, it would, in no way, advance the case of the appellant inasmuch as it has not been shown to us that the appellant would be an heir of respondent No. 1 with regard to his personal properties. Apparently such properties would on his demise be governed either by testamentary disposition or would devolve on his personal heirs. 65. Another point urged by learned Counsel for the appellant was that the covenant could not confer any right in favour of respondent No. 1 which he did not otherwise possess nor could it take away the rights of the members of the joint Hindu family by accepting the properties in suit to be the personal properties of respondent No. 1. Suffice it to say so far as this submission is concerned that as has been held above, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
