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TMI Blog1993 (8) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... datory princes, of any lands in British Territory, however and from whomever acquired. This policy was communicated to all native States in Punjab including the State of Nabha. 5.Maharaja Ripudaman Singh was the Ruling Chief of Nabha State in the early twenties of this century. His ruling powers were withdrawn by the British Government in the year 1923. Thereafter, he was deposed from the Gaddi in 1928 and was exiled to Kodaikanal in Tamil Nadu. He resided in Kodaikanal till 1942 when he died. He left behind his wife, Sarojini Devi, three sons, Pratap Singh, Kharagh Singh and Gurbaksh Singh and two daughters, Kamla Devi and Vimla Devi. 6.Sarojini Devi, wife of Ripudaman Singh and her children were residing in England from 1934 to 1944. She returned to India when her eldest son, Pratap Singh was to receive administrative training as he was to become the Ruler of Nabha State by the applicability of rule of primogeniture. It also requires to be stated that the entire family came back to India in the year 1945. Gurbaksh Singh, the third son of Ripudaman Singh died in November 1963. He left behind is widow, Chandra Prabha Kumari and two minor daughters, Krishna Kumari d Tuhina Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit was pending, defendants 1 and 2 sold the property in favour of defendants 4 to 8 by a sale deed dated May 1, 1970. The sale consideration was ₹ 1,40,000. 11.Though originally the suit came to be filed before the learned Senior Sub-Judge, Simla, after the merger of the area in Himachal Pradesh, original jurisdiction cannot to be exercised by the Delhi High Court. On the formation of the Himachal Pradesh High Court, the suit (C.S. No. 14 of 1968) was transferred to the original side of that Court. 12. In the written statement of the defendants (other than the third defendant) it was urged that: (1)Pratap Singh was a necessary party and insofar as he had not been joined the suit was bad for non-joinder. (2)Inasmuch as the Central Government refused leave under Section 86 read with Section 87-B of the Code of Civil Procedure against Pratap Singh, the suit could not be filed even against his assignees. (3)The suit was not maintainable for partial partition since there are other properties left by Ripudaman Singh. (4)From 1942 Pratap Singh had remained in possession of the property as full owner for over 20 years and had, therefore, perfected his title. (5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of Nabha State. The property continued to be dealt with as belonging to Nabha State even after Pratap Singh ascended the Gaddi. After independence the State of Nabha acceded to the Indian Union. On May 15, 1948, a Covenant was entered into between the Central Government and eight Princely States, all of which merged to form a States Union called Patiala and East Punjab States Union (PEPSU). The plaintiff submitted an inventory of the properties. As per paragraph 2 of Article XII the said inventory included the house in question. On that basis, it was urged by the plaintiff that it became his private property and he was exclusive owner thereof. Thus, the suit for possession. 16.In opposing the claim of the plaintiff the defendants contended that it was a private property of Ripudaman Singh and continued to be so. The Covenant had recognised this position and had accordingly declared. The Covenant did not create or confer a new right. On the contrary, the intention of he Covenant is to receive claims, scrutinise the same and finally put at rest tile controversy, if any, between the Ruler and the Government of the States Union once and for all. 17.The learned Single Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate property in the year 1921. 21.During the Rulership Pratap Singh had treated the estate of his father as point family property. Documentary evidence supports this argument. Ex. B dated December 3, 1943 referred to the ornaments and other articles of the widows of the previous Rulers of Nabha State. These properties were private Properties of the Ruler, distinct from State properties. 22.Ex. F is an indemnity bond given by Pratap Singh in favour of the imperial Bank of India against any claim by the legal representatives to the ,state of his father. 23.Ex. PW 3-B is a letter dated October 30, 1956 from the Chief Secretary PEPSU to Deputy Secretary, Government of India in respect of loan of above ₹ 4,00,000 advanced to Pratap Singh in 1947 against the estate of his father. 24.The learned Single Judge had given due importance to these document The Division Bench erred in treating them lightly. 25.In terms of Article XII of the Covenant dated August 20, 1948 Prata Singh had submitted a list of his private properties to Rajpramukh of PEPSU That included Sterling Castle, 34, Alipur Road and 11 other properties. Artiel XII postulates that the Ruler can include in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ap Singh was called upon to produce the original deed of relinquishment he did not do so. It was under these circumstances, a certified copy came to be filed. The Division Bench has clearly overlooked this important aspect of the matter. Further, Dr Tehl Singh, having died even before the evidence was recorded in 1970, his evidence could not be procured. In view of all this, the finding of the Division Bench ill relation to the deed of relinquishment cannot be supported. Article 363 cannot constitute a bat to decide the nature of the ownership with reference to the property in question. 29.In opposition to this, Mr D.D. Thakur, learned counsel would submit that there is absolutely no evidence in this case that Ripudaman Singh was having large funds from Sarfa Khas which came to be utilised by Sarojini Devi for purchase of the suit property. Excepting the oral testimony which has been rightly disbelieved, there is not a single document to prove that the property was purchased benami in the name of Dr Tehl Singh. Right from inception, the property was treated as belonging to the State. The Municipal Registry also bears this out. If really, that be so, rightly a declaration was mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law and in fact. 34.It is important to note that insofar as 1923-28 period is concerned they are acts of State, there was no death, no succession opened. Therefore, there was no application of Mitakshara. When in 1928 Ripudaman Singh was formally deposed it extinguished every vestige of his title or claim. When Pratap Singh was installed, title thereto came to vest in him and the said title continued and has not been defeased at any point of time subsequently. If this be so, the findings of the Division Bench are liable to be set aside. 35.Countering these submissions, it is argued by Mr Hingorani, learned counsel, that the case of the appellant before the High Court was that even before the date of Covenant an Indian Ruler whose capacity was other than that of a Ruler acted only for the State, being its sovereign. Any property purchased by him, in his own name or in the name of another person, would not be purchased by the State. The High Court has correctly found that such a contention is not acceptable in view of the articles of the Covenant. 36.It is submitted that the Ruler's private property is not governed by any of the provisions of the Constitution which prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the title deeds; (3) motive; (4) relationship between the parties; 1 (1955) 1 SCR 509 : AIR 1954 SC 513 : 10 ELR 30 2 1993 Supp (1) 1CC 233 (5) conduct of the parties in dealing. 42. The points that fill for determination are: ( 1) What is the rule of succession applicable to the State of Nabha? (2)Did Sterling Castle, the suit property, belong to the State of Nabha or was it the private property of Ripudaman Singh?. (3)Whether the judgment of the Allahabad High Court constitutes res judicata? 43.Before we proceed to answer these questions we will briefly set out the historical background. 44.The State of Nabha was formed in 1763 by Hamir Singh as the Ruler. Maharaja Hira Singh was not a direct descendant of the former Ruler, Raja Bhagwan Singh. When he died issueless in 1871 there were no natural heirs. Being a descendant of Pliul, Hira Singh came to be selected as the Ruler. He wielded sovereign powers over this territory. On his death in 1911 his son Ripudaman Singh came to power. The admitted facts are: 45.Maharaja Ripudaman Singh ascended the Gaddi of N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solute monarch or sovereign, the Ruler was the owner of all the property in the State. In Vishnu Pratap Singh v. State of M.P.' at page 46 it was held: Despite the distinction drawn in Article XI, there was in reality no distinction between State property and the property privately owned by a Ruler, since the Ruler was the owner of all the property in the State. For the purposes of arrangement of finance, however, such a distinction was practically being observed by all Rulers. The apparent effect of the covenant was that all the property in the State vested in the United States of Vindhya Pradesh except private property which was to remain with the Rulers. As is evident, the Ruler was required under Article XI to furnish to the Rajpramukh 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 partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-in-law. Fourthly, the Ruler had no sovereign power towards administering his State which had become part of the integrated United State in terms of Article VI of the Covenant, and during the integration he could not exercise such a sovereign power, so as to take away the property of a private person and treat it as State property because the property in dispute having once vested in the defendant-appellants could not be divested in the manner suggested. And lastly, there was no raiseable question or issue which the Ruler could, while sitting with Shri Buch, decide amicably without the aid of the Judicial Officer nominated by the government entering upon such dispute, because before integration he owned his State and its properties and there could legitimately not arise a dispute as to which was his private property or State property and thus its settlement by a mutual consent did not arise. Taking thus the totality of these circumstances in view, we are driven to the conclusion that the High Court committed an error that the Ruler lost his sovereign right to earmark the property as his private property after May 1, 1948, or that the said property vested in the State with effect f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty of the Ruler. The settlement was a difficult and delicate task calling for detailed and patient examination of each case. As conditions and customs differed from State to State, there were no precedents to guide an d no clear principles to follow. Each case, therefore, had to be decided on its merits. 58.In the ruling already referred to, namely, Vishnu Pratap Singh3 this aspect of the matter has been dealt with. However, with regard to one other aspect of the matter in Revathinnal Balagopala Varma2 in paragraph 64, it was observed: 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. Q. 1: What is the Rule of Succession applicable to the State of Nabha? 59. As to the applicability of rule of primogeniture it could be culled from the following rulings. 60.In Baboo Gunesh Dutt Singh v. Maharaja Moheshur Singh5 it was stated as follows: We apprehend that the principle upon which we are about to proceed in this case admits of no doubt or question whatev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Lord Tenterden in Advocate General v. Amerchund4. We may also now refer to the observations of Bhagwati, J. (as he then was) in D.S. Meramwala Bhayavala v. Ba Shri Atarba Jethsurbhai10: If the Khari-Bagasara Estate was a sovereign Estate, it is difficult to see how the ordinary incidents of ancestral coparcenary property could be applied to that Estate. The characteristic feature of 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 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 virtu e of municipal law. He would not be subject to municipal law; he would in fact be the fountain-head of municipal law. The municipal la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus: The principle of law that is applicable to a coparcenary property or to the coparceners is inapplicable to an impartible estate or to the holder thereof except that an impartible estate is considered to be a joint family property to the extent of the junior members succeeding to the estate by right of survivorship. When under certain circumstances the right of a coparcener to take by survivorship can be defeated, no exception can be taken, if the right of survivorship of junior members of an impartible estate to succeed to it is defeated by the holder thereof by disposition by a will. 70.Again in Rajkumar Narsingh Pratap Singh Deo v. State of Orissa14 at page 121it is observed thus: As we have just indicated, the customary law which required the Ruler to provide maintenance for his junior brother, can be said to have been continued by clause 4(b) of the Order of 1948 and Article 372 of the Constitution;...... 71. Section 5 of the Hindu Succession Act, 1956 (Central Act 30 of 1956) states as follows: This Act shall not apply to (i) ** *** ** ** (ii)any estate which descends to a single heir by the terms of any covenant or agreement entered into by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw of succession relating to primogeniture continues until it is repealed. This is the position of law relating to succession. 76.We will now see the relevant portions of the Covenant entered into between the Rulers of Nabha State and the Government of India on May 15, 1948, which have a bearing on thi s aspect. 77. The relevant provisions of the Covenant are: Article VI. (a) All rights, authority and jurisdiction belonging to the Ruler which pertain or are incidental to the government of the Covenanting State shall vest in the Union and shall hereafter be exercisable only as provided by the Constitution to be framed thereunder; (b)all duties and obligations of the Ruler pertaining or incidental to the government of Covenanting State shall devolve on the Union and shall be discharged by it; (c)all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the Union; and (d)the military force if any, of the Covenanting State shall become the military forces of the Union. X X Article VIII. The Rajpramukh shall, as soon as practicable and in any event not later than the 30th of August, 1948 execute on behalf of the Union an Instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the correct position of law, the contrary observations of the learned Single Judge are not correct. 79.The property was purchased on December 21, 1921 benami in the name of Dr Tehl Singh. The sale deed has been marked as Ex. PW 6-A. The benami nature of the transaction is affirmed by the letter of the Prime Minister of Nabha State dated April 17, 1922. In that reply to Governor General's agent it is admitted that Sterling Castle has been acquired by the Nabha State benami. The following amply establish as to how this property was treated as belonging to the State of Nabha. 21-12-1921- Sterling Castle, purchased in the name of Dr Tehl Singh benami. Sale Deed is Ex. PW 6-A. 17-04-1922- Prime Minister Nabha State, sends a reply to Governor General's agent (Punjab States) admitting that Sterling Castle had been acquired by the Nabha State benami. 19-12-1922- Resolution of Government of India, (Foreign Political Deptt.) regarding acquisition of residential properties by ruling Princes and Chiefs in British India 'The property when acquired by a Prince or Chief will be acquired as State properties and not as personal property'. 07-06-1923- J.P. Thompson rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Castle be obtained in the name of President, Council of Regency. 27-06-1931 to 12-8-1931- Settlement Tehsildar, Simla after inquiries and proceedings conducted on various dates, sanctions mutation in favour of Maharaja of Nabha on August 12, 1931, and also records the Nabha State as being in possession. 21-12-1933- Resolution No. 21 of Council of Regency, Nabha State regarding boundary of Sterling Castle showing that space would remain State property. 13-04-1933 to 12-4-1934- Expenditure on roads and buildings of Nabha Estate analysed in which expenses pertaining to Sterling Castle also included. 14-07-1936- President, Council of Regency suggests a cottage in the compound of Sterling Castle (which is described as 'State House') for renting by Nabha Darbar to Mr Gillan. 09-02-1937 to 13-3-1937- Estimates and proposals made in Nabha State Budgets and subsequent sanctions made by the Agent, Governor-General of India regarding expenditure on repairs and alterations to the kitchen of Nabha State House, Sterling Castle. 05-03-1941- Maharaja Pratap Singh comes of age and is formally invested with full ruling powers. 12-12-1942- S. Gurcharan (formerly Ripudaman) Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Nabha. She stated that she was at Nabha at that time and it was she who brought the cash to Sardar Sitole. Concerning this huge amount she candidly admitted that no account of Sarfa Khas was maintained by her husband, nor was any entry about the payment of ₹ 3,00,000 made in any account. Therefore, this oral testimony is hardly sufficient to establish the source of consideration. 83.As regards the relinquishment deed it was stated to have been executed on April 30, 1952 by Dr Tehl Singh. The original of this document is not forthcoming. Nor again, anyone connected with this document, was examined. It is somewhat surprising that Pratap Singh should have insisted upon such a document when he unequivocally declared by his letters dated August 19 and October 24, 1948, Sterling Castle as his personal property. These letters were submitted in accordance with Article XII of the Covenant to which we have made a reference earlier. But what is noteworthy is that in this deed of relinquishment it is stated that this property was all through in the possession of the ruling family and the State of Nabha. By the time the suit came up for trial Dr Tehl Singh was dead. Therefore, the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abad High Court would not constitute res judicata. 86. In the result, the appeal will stand dismissed. There will be no order as to costs. 87. Now, we go on to Civil Appeal No. 5857 of 1983. This appeal relates to No. 34 Alipur Road, Civil Lines, Delhi. The documents under which the purchase was made were dated April 18, 1922. 88. It was purchased benami in the name of Gurnarain Singh Gill. The events that followed and the documents relating to this, till the suit came to be filed by Pratap Singh for recovery of possession in 1959, could be stated chronologically. 89. The property is in occupation of the Government of India (from 1920) as a lessee per Ex. P-16 who had placed it at the disposal of the Australian High Commission. The tenants (Government of India) attorn to the Nabha State as the purchaser. 11-06-1923- J.P. Thompson records that Maharaja Ripudaman Singh agrees that house belonging to Nabha State could be sold to raise money for paying the proposed ₹ 50 lakhs compensation to Patiala State by the Nabha State. He said he had kept aside from the State a sum of Rupees Six lakhs for himself which he would not part and that he had no other assets. The re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l will be the responsibility of the State. 23-05-1924- Estate Officer writes to Gumarain Singh Gill notifying him that the Government was entering into an agreement with Nabha State believing it to be the owner of the bungalow 34, Alipur Road. 19-06-1924- List of the house properties belonging to the State having been prepared, it enquired from Maharaja Ripudaman Singh (by then in exile) as to the possession/whereabouts of the title deeds. Maharaja Ripudaman Singh replies that he does not have any title deed in his possession relating to house properties of the State and further expresses that in case of difficulty in regard to the intended sale of these properties he would always be prepared to give every assistance. 23-06-1924- D.O. letter from agent, Governor-General (Punjab States) asking to surrender within 14 days the title deeds of house property belonging to Nabha State. 30-06-1924- Rent Bill by Nabha State from April 7, 1922 to June 30, 1924 (Ex. P-24). 20-08-1924- Estate Officer writes to Administrator Nabha State that lease of 34, Alipur Road will be sent for execution on receipt of a reply from Gumarain Singh to letter dated May 23, 1924 (copy Ex. P-30). 27- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on three subjects i.e. External Affairs, Defence and Communication, but the Ruler (Pratap Singh) retains his sovereignty. 19-08-1948- Maharaja Pratap Singh submits the list of properties to the Rajpramukh which he seeks to retain at the time of merger. Alipur Road property is part of this. 20-08-1948- In terms of the Covenant, Nabha State integrates (merges) with seven other States to form PEPSU. Maharaja Pratap Singh ceases to be a sovereign ruler on this day. 1949- List of private properties in terms of Covenant includes 34, Alipur Road and Sterling Castle (Ex. P-535). 04-05-1949- Rajpramukh of PEPSU's letter to Maharaja Pratap Singh enclosing the list of private properties. 12-06-1950- PEPSU Executive Engineer writes to Secretary, Municipality, Delhi re declaration of 34, Alipur Road as private property of Maharaja Pratap Singh. Letter is dated June 12, 1950, (Ex. P-516). 1948-1950- Smt Sarojini Devi being the mother of Maharaja Pratap Singh assumes residence at his Alipur Road property. 1951- Smt Sarojini Devi manages to cause her name to be entered in the records of the Notified Area Committee as the owner of the house. 27-01-1951- Maharaja Pratap Singh's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As rightly held by the learned Single Judge the evidence of Sarojini Devi that Ripudaman Singh purchased the property from his personal funds and this was meant to be the personal property is hard to accept. The bank account is not produced. The evidence of DW 10 is brittle. DW 3's testimony bristles with contradictions. Therefore, that is not helpful. What is more crucial is that Gumarain Singh Gill throughout maintained the stand that the property had been purchased for the State as benamidar. If really the property was purchased for Ripudaman (Gurcharan Singh) he would not take that stand as to betray the confidence of the master. The release deed was executed on February 25, 1937. It is somewhat strange it should have been executed in favour of Nabha State and not Ripudaman Singh. Ripudaman Singh was alive for 5 years subsequent to release deed. Not a word of protest was uttered either by Ripudaman Singh himself or by anyone (beneficial owners). 94. The respondents placed reliance on Ex. DW 9/1. A careful perusal of the document shows that there is no reference to 34, Alipur Road, the suit property. Therefore, on that score, it cannot be claimed as private property of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the scope of this article, the Division Bench says: Under Article XII in paragraph (1) it is provided that the Ruler shall be entitled to full ownership, use and enjoyment of all private properties belonging to him on the date of his making over the administration of that State to the Rajpramukh. Paragraph I clearly assumes that the Ruler of each Covenanting State may b e having private properties and the provision assures all the rights in respect of those properties. Under paragraph 2 the Ruler is required to furnish an inventory of all properties held by him as such private property. The use of the word 'held' also makes it clear that the Ruler while furnishing an inventory should be holding some properties as his private properties. The decision given by the Rajpramukh with the approval of the Government of India about a particular inventory furnished by the Ruler would not make any difference because it was meant to put at rest any possible dispute between the Government of the States' Union and the Ruler. The question which, next, arises is whether a property accepted as a private property upon the furnishing of the inventory would mean that the property acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioners of divisions in Punjab have been directed to report all cases in which landed property may be acquired by a ruling chief. All proposed purchases of this nature have to be referred for the orders of the Government of India who will only allow such purchases in special circumstances. These orders refer to all immovable property of every description whether land or houses and forbid also the lending of money upon mortgage of such immovable property. 3. The wishes of the Supreme Government in this respect were, in 1902 communicated to all the native States in the Punjab To Patiala, Bhawalpur, Jind and Nabha direct and to others through Political Agents. 4. Again in 1903, the Government of India pointed out that they are strongly opposed on grounds of principle to the acquisition of immovable property in British India by ruling chiefs and notables of native States, and in forwarding a list indicating the manner and circumstances in which the policy of the Government of India has been infringed in certain instances in the matter and prompt and adequate measures taken to ensure the strict observance in future of the rules laid down by them. Note: The terms notable empl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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