9911796707
TMI Blog1995 (2) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... per the custom and the law prevalent and also as per the Covenant signed by the Ruler with the Government of India. The private properties of late Maharaj Man Singh after his death, became the absolute properties of defendant No. 1. Neither the plaintiff nor defendants 2 to 7 have any right on the same. Hence the plaintiff has no cause to claim any partition or for accounts regarding the impartible Estate. 2. To appreciate the objection raised by defendant No. 1, we have to understand the facts pleaded in the plaint. To determine this objection, we can only look to the averments made in the plaint itself. We cannot look into any defense pleaded or set up. The cause of action is nothing but bundle of facts giving rise to the claims made in the plaint by the plaintiff. These bundle of facts as a whole constitute the cause of action. Therefore, to determine whether the bundle of facts stated in this plaint show any cause of action in favor of the plaintiff, we have to see the facts averred in the plaint itself. Maharaj Jagat Singh, the plaintiff herein, has claimed, himself to be one of the coparceners of the Hindu Undivided Family (in short HUF). He has based his claim, inter alia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Defendant No. 1 became Karta of the said H.U.F. Defendant No. 1 has been showing the suit properties as H.U.F. properties in the Estate Duty, the Income Tax and wealth-tax proceedings .Because of the declarations made by defendant No. 1 that the suit properties were H.U.F., the Taxation Authorities assessed the suit properties as H.U.F. properties. Defendant No. 1 took advantage of H.U.F. status of these properties from the Income Tax, Wealth-tax Authorities as well as from Estate Duty. Defendant No. 1 possessed these properties for and on behalf of all members of H.U.F. Since these properties were treated as H. U. F. by all including the defendant No. 1 and he even declared these properties to be H.U.F., hence the plaintiff came in physical and constructive possession of these properties. Because of the action of defendant No. 1 the plaintiff in fact came in physical possession of Takhi-I-Shahi , a suit property at Jaipur. The H.U.F. status of these properties has been declared by defendant No. 1 himself. 4. It is further the case of the plaintiff that defendant No. 1, Lt. Col. Sawai Bhawani Singh, as Karta of the H.U.F. has been mismanaging the properties to the detriment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding maintainability of the suit. Rule 11 of Order 7, C.P.C. indicates that the plaint shall be rejected in four clauses mentioned in Clauses (a) to (d). Under Rule 11, a duty has been cast on the Court to see whether the plaint contains the necessary allegation which must be proved before a decree could be given if these are not the necessary allegations, to reject the plaint. It is well settled principle of law that in asking the Court to decide the issue like this, the defendant must be taken to admit for the sake of arguments that the allegation of the plaintiff in his plaint are true mood et forma in manner and form. 7. There cannot be any quarrel with the proposition propounded by Mr. Shanti Bhushan, learned counsel for defendant No. 1 that right to partition cannot be acceded in the case of impartible State. Defendant No. 1 being the eldest son would have preferential right to succeed to the Gaddi as well as to the private properties of late Maharaja Sawai Man Singh by the principle of primogeniture as held by Supreme Court, (sic) in an Impartible Estate though other rights which a coparcener acquires in the joint family do not exist, right by birth of the senior membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with the nature of properties held by the erstwhile rulers and the effect of the merger of these States with the Government of India, on these properties. After considering various provisions and the decisions, it was observed by the Supreme Court that though impartibility and primogeniture in relation to Zamindari States are to be established by custom, but in the case of sovereign Ruler these are presumed to exist. It has further been held that doctrine of the Hindu Law that property inherited by a son from his father would be ancestral property in his hands cannot be made applicable in the cases of Rulers where all the properties held by a monarch or Ruler devolved by the rule of primongeniture. On the devolution of the properties from one monarch to his successor, the successor would take the same as an absolute monarch, and not as a son by way of inheritance. It was further observed that on succession of a sovereign Ruler, the property cannot be claimed to be a joint family property, since the estate in the hand of the Ruler would be a sovereign estate and its chief a sovereign Ruler. In fact the sovereign ruler acquires the property in exercise of his sovereign rights. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arate property. Subject to the above ,the estate retains its character of joint family property and its devolution is governed by the general Mitakshara law applicable to such properties. The late Maharaja Sawai Man Singh after the accession of Jaipur State with the Union Territory of India became an ordinary citizen and the laws of the land apply to him. To my mind, these arguments have no force, in view of the observations of the Supreme Court quoted above in the cases of Maharaja Pratap Singh Civil App. No. 5857 of 1983, D/-17-8-1993 (SC) and Revathinnal Balagopala Varma 1991(2)SCALE1142 (supra). 10. Mr. Parsaran then placed reliance on the 26th Amendment of the Constitution of India. Reliance on 26th Amendment of the Constitution of India, to my mind, is misplaced. The 26th Amendment of the Constitution is not retrospective and could not have changed the succession of the property of Maharaja Sawai Man Singh by defendant No. 1 which already took place in 1970. Maharaja Man Singh died in the year 1970 whereas the 26th Amendment came on the Statute Book in the year 1971, Hence the contention of Mr. Parsaran, cannot be supported from the facts of this case that 26th Amendment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Mr. Parsaran either on the 26th Amendment or to Section 4 of the Hindu Succession Act has no relevance with the facts of this case. 11. Had the case of the plaintiff rested only on the facts quoted above. I might have accepted the plea of Mr. Shanti Bhushan that the plaint is not maintainable as it does disclose the cause which requires adjudication as these questions and allegations are no longer rest Integra. These have already been conclusively settled by the pronouncement of Supreme Court in the cases cited above. 12. But there are certain other facts pleaded in the plaint which if proved would entitle the plaintiff the relief claimed. It has been pleaded that defendant No. 1 made declaration in the Estate Duty, Income Tax and Wealth-tax proceedings that the suit properties were H.U.F. properties and be assessed accordingly. This is so pleaded in para 10 of the plaint. The defendant No. 1 had been showing the suit properties as HUF properties in his returns filed with the Income Tax and Wealth-tax Authorities. On the declaration of the defendant No. 1, the suit properties were assessed by these authorities as H.U.F. properties. Acting on these admissions and declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal properties yet from 1971-72 to 1985-86 he disclosed these properties in his returns for Income Tax as well as Wealth-tax as properties belonging to the Hindu Undivided Family of which he is the Karta. He has of course offered an Explanation that this was done merely under legal advice to save tax. In these circumstances however there is a distinct possibility of the said properties being held to be properties of the said Hindu Undivided Family and prima facie case has been made out to that effect. If that is the correct position respondent No. 1 will have only 1/6th share in the said properties or at least substantially less than a half share . 13. The Supreme Court did consider the Explanation given by defendant No. 1 that the declaration to the Income Tax and Wealth-tax authorities was done merely on legal advice to save tax. Still the Court observed that there was a distinct possibility of the properties being held to be the properties of H.U.F. and came to the conclusion that a prima facie case has been made out. Therefore, at this stage, it cannot be said that plaint does not disclose cause of action particularly in view of the admission made by the defendant No. 1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
