The Kapurthala was a sovereign State and the custom of primogeniture was invariably prevalent in Hindu Sovereign State all across India including Kapurthala.

[Case Brief] Tikka Shatrujit Singh & Ors. V/S Brig. Sukhjit Singh & Anr.


Case name: Tikka Shatrujit Singh & Ors.   V/S Brig. Sukhjit Singh & Anr.

Case number: RFA (OS) No.23/2004

Court: HIGH COURT OF DELHI

Bench: HON'BLE   MR. JUSTICE A.K. SIKRI

HON'BLE   MR. JUSTICE MANMOHAN SINGH

Decided on: 19.11.2010

Relevant Act/Sections: Code of Civil Procedure read with   Section 10 of the Delhi High Court Act


Ø BRIEF FACTS AND PROCEDURAL HISTORY:

1. The respondent no.1 and appellant No.3 are husband and wife and are parents of appellant Nos.1, 2 (sons) and appellant No.4 and respondent No.2 (daughters). The appellant No.2 died intestate and his estate is inherited by his mother appellant No.3 during the pendency of the suit.

2. Originally the Suit was filed by the appellants seeking separation of the shares of the Plaintiffs after the partition of the joint properties.

3. The plaintiffs and defendants formed Hindu Undivided Family and all of them have been joint in estate and worship upto August 1976 and were joint in mess. Defendant No.1 had deserted the family since August 1976 and has been residing at Gymkhana Club, New Delhi. The details of co-parcenary properties have been enumerated in para 8 of the plaint and it is prayed that if any other co-parcenary properties, of which the plaintiffs for the present have no knowledge, if are found, they be also partitioned.

4. On or about January 13, 1977, the defendant No.1 had filed a suit in this Court against plaintiff No.3, praying for a declaration that the two properties namely, Villa at Kapurthala and the Chateau, Mussorie with all the movables lying therein are his personal and exclusive properties and the property at Greater Kailash, B 90-A is also owned exclusively by him, acquired from his personal funds and the jewelries lying in different places in the properties, enumerated in the plaint is owned by him.

5. The defendant No.1, karta of the Hindu Undivided Family (for short the „HUF‟) has set up wrongful claims to the co-parcenary properties and has thus committed a gross misconduct resulting into the plaintiffs‟ seeking the relief of partition of the joint family/co-parcenary properties.

6. The grandfather of the defendant No.1 had succeeded to the Gaddi of Kapurthala as a male heir, constituting a valuable property right carrying privileges, title and monetary benefits and all the properties of the Gaddi including the income attached to the Gaddi were ancestral properties in his hands and the property acquired by grandfather with the aid of any impartible estate became ancestral properties, governed by law of inheritance, applicable to the Mitakshara School and the great grandfather of the plaintiffs 1 & 2 had built Chateau St. Helens at Mussorie with the aid of ancestral funds and the properties acquired with the aid of any impartible estate by the great grandfather or the grandfather of plaintiffs 1 & 2 became HUF properties and the defendant No.1 and his father had not acquired any property with the aid of any privy purse and even if they did so, the same also at any rate became HUF co-parcenary.

7. Some of the properties have been acquired by defendant No.1 from the compensation received by defendant No.1 in respect of the zamindari rights which were ancestral properties and also from the sale proceeds of the palace at Kapurthala.

8. After recording the evidence of the parties, the suit of the plaintiff was decreed vide judgment and decree dated 06.04.1992. Later on the said judgment was reviewed by the same learned Single Judge on 28.04.1995 pursuant to the review applications being R.A. No. 09/1992, 03/1993 in Suit No. 1052/1997 and 35/1977 filed by the respondent no.1.

9. The learned Single Judge after referring various decisions, pleading and material, allowed the review applications in respect of issue nos. 1, 2, 4, 5, 10 and 11. The review as regards issue nos. 6 to 9 was rejected and the issues were decided against the respondent no.1. The matter was put by the learned Judge for hearing of the Suit. By the impugned judgment dated 03.09.2004, the learned Single Judge dismissed the Suit of the appellants

10. Thus, the present Regular First Appeal has been filed by the four appellants against the judgment and decree passed by the learned Single Judge on 03.09.2004 in Suit No. 1052/1977 whereby the suit of the appellants was dismissed except in respect of the preliminary decree qua exhibit DA and PW-1/1. The appeal was admitted and the status quo order was maintained during the pendency of the present appeal.


Ø ISSUE BEFORE THE COURT:

1. whether the properties in question are co-parcenary properties or not?

2. whether the Rule of Primogeniture governed Hindu Rulers and applied to the Kapurthala?


Ø RATIO OF THE COURT

1. The argument of the Appellants are that there was a distinction between public and private property of a sovereign Ruler and that the private property was held as a karta of a coparcenary.

2. The Supreme Court in Civil Appeal No.534 of 1983, Revathinnal Balagopala Varma Vs. His Highness Shri Padmanabhadasa Varma (Since deceased) and others, and Civil Appeal No.535 of 1983. Indira Bayi and Others Vs. His Highness Sri Padamanabhadasa Varma (since deceased), decided on November 28, 1991. It is held by the Apex Court that one incidence of the 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; and the other incidence was that no one could be a co owner with the sovereign in the properties held by him.

3. The Apex Court in fact approved a decision of the Gujarat High Court in D.S. Meramwala Bhayala Vs. Ba Shri Amarba Jethsurbhai (1968) that, it is clear that the characteristics of ancestral coparcenary property are not applicable to the properties owned by the sovereign ruler.

4. The court held that the custom of Primogeniture for Zamindars evolved as an exception to the general customs of Mitakshara survivorship and Mitakshara succession.

5. The court held that in the present case as per the case of appellants, no custom prevailing for the family of Kapurthala. The rule of primogeniture and impericable estate and the Gaddi of Kapurthala was imposed on the family by the British in the exercise of their political power and it cannot be equated with the family custom as recognised by a Hindu Law.

6. It is held in many decisions that the grant of maintenance shows that the property is not joint property. Reliance was placed by the court on the following passage from Raja Chattar Singh vs Diwan Roshan Singh.

7. The court observed that being a sovereign ruler, no incidence of coparcenary or Joint Hindu family could be applied to properties held by him and the juniors (sons), had no right by birth.

8. The bench observed Maharaja Jagatjit Singh being a Sovereign Ruler, a Presumption (of impartibility-Primogeniture) could be raised. If Kapurthala was a mere Zamindari – then no “resumption” will be available and it will be for the respondent to prove by evidence that the custom of impartiblity-primogeniture existed.

9. The larger HUF (coparcenary) would comprise all the descendants of Sardar Bhag Singh, the second Ruler of Kapurthala the (supposed) Great Kapurthala Coparcenary. in such an event, the male members of the family would have had vested interest from prior to Maharaja Jagatjit Singh’s death, and each one would have also been free from before, to sue for partition.

10. Hindu Mitakshara Survivorship postulates a pre-existing coparcenary where all the members have a vested right in the property from prior to Maharaja Jagatjit Singh death (19.06.1949). The Survivorship principle of the pre-17.06.1956 era proceeds on the basis that on death, the existence of the deceased gets subsumed but the coparcenary continues to exist.

11. The court observed Further, if “Mitakshara inheritance” had taken place in 1949, there could have been no Succession on 19.07.1955, but only “Survivorship”, at which, not Sukhjit Singh, respondent No.1 but his uncle M.K. Karamjit Singh, would have become the karta. This did not happen. Furthermore, as per the law, all the widows would have got limited or life interest (under the 1937 Act), and since all six survived 17.06.1956, their interests would have stood enlarged on 17.06.1956 by virtue of Section 14(1) of the Hindu Succession Act. And, since it is admitted to have not occurred – the evidence on record also shows that it did not occur – it stands proved that the succession in 1949 was by Will / Primogeniture, and not by Mitakshara.

12. The court also after examining held that the appellants plea that the rulers of Kapurthala were only Jagirdars or Chiefs and not rulers is wholly without cogent evidence and the appellants are failed to substantiate their plea raised, on the other hand the evidence produced has proved that the Kapurthala was a sovereign State and the custom of primogeniture was invariably prevalent in Hindu Sovereign State all across India including Kapurthala.

13. The court finally held that the learned Single Judge has dealt with each and every piece of evidence produced by the parties and has rightly come to the conclusion that the respondent No.1 has been able to establish his pleas raised in the written statement and they agreed with the finding of the learned Single Judge that there is cogent evidence on record to come to the conclusion that rule of primogeniture prevailed.


Ø DECISION HELD BY COURT:

1. The court held that cross objections filed by the respondnet no.1 are, therefore, disposed of accordingly as this court has decided the issue of rule of primogeniture in favour of the respondents.

2. No costs

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