TRIJUGI NARAIN (DEAD) THROUGH LEGAL v. SANKOO (DEAD) THROUGH LEGAL

1.2 An estate even if inherited and ancestral, partition of which is prohibited by custom and succession whereto is generally by the rule of primogeniture is referred to as an ‘impartible estate’. An impartible estate is essentially a creature of custom, though could also owe its origin to the term of a grant, a statute or a family settlement. By virtue of the rule of primogeniture, the eldest or the first son succeeds to the property of the last holder to the exclusion of his younger TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO (DEAD) THR. LEGAL REP. 1053 brothers. Succession can also be under the rule of lineal male primogeniture which means that the descendant would be a continual descendant of the eldest male member of the eldest branch. [Para 11] [1062-G; 1063-A-B] Thakore Shri Vinayasinhji (Dead) By LRs. v. Kumar Shri Natwarsinhji and Others (1988) Supp. SCC 133 : [1988] SCR 1110 – relied on. Shiba Prasad Singh v. Rani Prayag Kumari Debi and Others AIR 1932 PC 216 – referred to.

1.3 An impartible estate is clothed with the incidents of self-acquired and separate property. Impartible estate even if inherited and ancestral, is not held by the coparcenary as a part of the coparcenary property, as the coparceners or members of the joint Hindu family do not have the right to partition or right to restrain alienation. Though the right to survivorship is not inconsistent with the custom of impartible estate, albeit it is different from the ordinary rule of succession under the Mitakshara Hindu law where all sons of the father are entitled to equal share in his estate, for the law of succession when the rule of primogeniture applies, is that the first-born son succeeds to the entire estate to the exclusion of the other sons. 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 A B C D E F G H 1054 SUPREME COURT REPORTS [2019] 16 S.C.R. A B C D E F G H 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) 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. [Paras 13, 16] [1064-C-D; 1065-G; 1066-A-C-F-H] Madhav Rao Jivaji Rao Scindia v. Union of India and Another (1971) 1 SCC 85 : [1971] 3 SCR 9 ; Pratap Singh v. Sarojini Devi and Others (1994) Supp 1 SCC 734 : [1993] 1 Suppl. SCR 607 – relied on. Baboo Gunesh Dutt Singh v. Maharaja Moheshur Singh (1854-7) 6 MIA 164 : 1 Sar PCJ 521 – referred to. Lieutenant Colonel James Tod, ‘Annals and Antiquities of Rajasthan’, Pg. 307 – referred to.

1.3 Section 5(ii), in its present form, was recommended by the Joint Committee in pursuance of its opinion, which means that the Rulers had impartible estates and succession to these was regulated by special covenants or agreements. Thus, after discussion, the (iv) exception in the Bill was deleted and was not enacted as law. The effect thereof was that the custom of primogeniture and impartible estate in the case of zamindars or those holding jagirs would not be applicable post enforcement of the Succession Act with effect from 17th June 1956. Preamble of the Succession Act states that it is an Act to amend and codify the law relating to intestate succession amongst Hindus and as originally enacted did not profess to amend and codify the law relating to the nature of all the properties held by Hindus, with the exception of Section 14 of the Succession Act. Section 4 of the Succession Act provides that the text, rule, interpretation, custom or usage of Hindu law will cease to have effect with respect to any matter for which provision is made in the Act and TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO (DEAD) THR. LEGAL REP. 1055 further any other law in force, which is inconsistent with the provisions of the Act, will cease to apply. Section 6 of the Succession Act deals with devolution of interest of a Hindu male (and daughter of a coparcener after amendment vide the Hindu Succession (Amendment) Act 2005) having interest in a Mitakshara coparcenary as distinct from a joint Hindu family. Sections 8 and 9 of the Succession Act relating to the general rules of succession in case of males and females, respectively, do not apply to a living person but apply on the succession opening on the death. Similarly, Section 30 of the Succession Act which deals with testamentary succession and empowers a Hindu to dispose of any property by will in accordance with the provisions of the Indian Succession Act, 1925, does not ipso facto apply to a living person and applies in the event of the holder’s death. Section 5(ii) is an exception to Section 4 and protects application of terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or the terms of any enactment passed before commencement of the Succession Act as per which the estate would descend to a single heir. The provisions of the Succession Act, with the possible exception of Section 14 and some amendments vide the Hindu Succession (Amendment) Act 2005, do not apply unless the succession opens and, therefore, no legal rights of a living person would get affected. The ratio of the Constitution Bench in Vir Rajendra Singh is a binding precedent for it recognizes the personal law of succession of the Rulers and therefore, the rule/custom of primogeniture applicable to impartible estates belonging to erstwhile Rulers of the princely states. This custom/rule was not abrogated with the loss of sovereignty that the Rulers had forgone with the signing of the merger agreement. Relying on the Constitution, and sub-section (ii) to Section 5 of the Succession Act, this Court has, time and again, held that the law of the land is pervious to the rule of primogeniture. [Paras 33, 35, 38 and 39] [1077-E-F; 1079-H; 1080-A-E; 1082-G-H; 1083-C] Kunwar Shri Vir Rajendra Singh v. The Union of India and Others (1969) 3 SCC 150 : [1970] 2 SCR 631 – followed. A B C D E F G H 1056 SUPREME COURT REPORTS [2019] 16 S.C.R. A B C D E F G H Talat Fatima Hasan Through Her Constituted Attorney Sh. Syed Mehdi Husain v. Nawab Syed Murtaza Ali Khan (D) By LRs. And Others 2019 (10) SCALE 212 – referred to.

1.6 It may be pertinent to state here that the succession on death of ‘BNS’ had opened on 13th October 1968, which is before Article 362 relating to the rights and privileges of the Indian Rulers was repealed by the Constitution (26 th Amendment) Act, 1971. Article 362, before it was repealed, stated that in exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or a State, due regard shall be had to the guarantee or the assurance given under any such covenant or agreement referred to in Article 291 with respect to the personal rights, privileges or dignities of the Ruler of an Indian State. ‘BNS’ had taken over as a Ruler of the State of Maihar in the pre-independence era when the Rulers, though subject to British supremacy, were treated as absolute sovereign Rulers within their own territories. There was no distinction between public and private property of the Rulers since the distinction would be counter to the basic attribute of sovereignty. Further, leasehold properties situated outside the princely states have been held to be State or sovereign property. Therefore, the contention of the appellants that the property being leasehold Nazul land situated outside the princely state was personal property must be rejected in the absence of any other evidence or material to rebut the presumption that the property was a part of the impartible estate belonging to the sovereign Ruler. On the other hand, inheritance of the property post the death of ‘RS’ by the new Ruler including ‘BNS’ by application of the rule of primogeniture to the exclusion of others son(s) would indicate that it was treated as a State or sovereign property. [Paras 40- 42] [1083-F-G; 1084-B-G; 1085-A] Draupadi Devi and Others v. Union of India and Others, (2004) 11 SCC 425 : [2004] 4 Suppl. SCR 223 – relied on.

1.7 The property was a part of the impartible property i.e., the property though ancestral was not a part of the coparcenary TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO (DEAD) THR. LEGAL REP. 1057 property, but was a part of the estate of the sovereign Ruler, ‘BNS’. Further, he could transfer the property inter-vivos or make a bequest by way of a will. The contention that the property was a separate or personal property and, therefore, not a part of the impartible property has not been established and has not been proved by the appellants by leading evidence and material to dispel the presumption. The final findings of the High Court are affirmed. There would be no order as to costs. [Paras 43-44] [1085-B-D] Revathinnal Balagopala Varma v. Shri Padmanabha Dasa Bala Rama Varma (since deceased) and Others (1993) Supp 1 SCC 233 : [1991] 3 Suppl. SCR 30 – relied on. Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards and Others (1899) LR 26 Ind App 83 ; Sri Rajah Velugoti Kumara Krishna Yachendra Varu and Others v. Sri Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Others (1969) 3 SCC 281; Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo and Others (1981) 4 SCC 613 : [1982] SCR 417 ; D.S. Meramwala Bhayawala v. Bai Shri Amarba Jethsurbhai (1968) 9 GLR 609 ; Mirza Raja Pushpavathi Vijayaram Gajapathi Raj Manne Sultan Bahadur etc. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagaram and Others AIR 1964 SC 118 : [1964] SCR 403 ; N. Padmamma and Others v. S. Ramakrishna Reddy and Others (2008) 15 SCC 517 : [2008] 9 SCR 535 ; N. Padmamma and Others v. S. Ramakrishna Reddy and Others (2015) 1 SCC 417 : [2014] 10 SCR 641 ; Tikka Shatrujit Singh & Others v. Brig Sukhjit Singh & Another ILR 2011 (1) Del 704 – referred to. Advocate General of Bombay v. Amerchund 12 ER 340, 345 : (1830) 1 Knapp 316, 329-30 – referred to. Case Law Reference [1976] 2 SCR 164 AIR (1932) PC 216 [1988] SCR 1110 relied on referred to relied on Para 8 Para 11 Para 12 A B C D E F G H 1058 SUPREME COURT REPORTS [2019] 16 S.C.R. A [1971] 3 SCR 9 1 Sar PCJ 521 relied on referred to [1993] 1 Suppl. SCR 607 relied on (1899) LR 26 Ind App 83 referred to B (1969) 3 SCC 281 [1982] SCR 417 referred to referred to (1830) 1 Knapp 316,329-30 referred to (1968) 9 GLR 609 referred to [1991] 3 Suppl. SCR 30 relied on [1964] SCR 403 [2008] 9 SCR 535 [2014] 10 SCR 641 ILR (2011) 1 Del 704 [1970] 2 SCR 631 referred to referred to referred to referred to followed (2019) 10 SCALE 212 referred to [2004] 4 Suppl. SCR 223 relied on Para 14 Para 14 Para 15 Para 17 Para 17 Para 17 Para 18 Para 19 Para 20 Para 31 Para 33 Para 33 Para 34 Para 38 Para 39 Para 42 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5740- 5741 of 2015. From the Judgment and Order dated 12.09.2008 of the High Court of Judicature at Allahabad in Second Appeal Nos. 1930 and 2017 of 1983 S.R. Singh, Sr. Adv., Krishna Kumar Yadav, Ankur Yadav, Ms. Sunita Pandit, Abhisth Kumar, Advs. for the Appellants. Dinesh Dwivedi, Sr. Adv., Ms. Preetika Dwivedi, Abhishek Chaudhary, Krishnam Mishra, Yasharth Kant, Nishant Singh, Advs. for the Respondents. The Judgment of the Court was delivered by SANJIV KHANNA, J.

1. These civil appeals arise out of common judgment and decree dated 12th September 2008 passed by the High Court of Judicature at C D E F G H TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO (DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.] 1059 Allahabad in Second Appeal No. 1930 of 1983 {Chandra Nath Kala (D) through LRs. v. Trijugi Narain (D) through LRs. and Others} and Second Appeal No. 2017 of 1983 {Sankoo and Another v. Trijugi Narain (D) through LRs and Others}.

2. The issue raised in the present appeals relates to the nature of the property, that is, whether the perpetual leasehold rights in plot No. 16 (Old Plot No. 9), Chaukhandi Kydganj, Allahabad – Nazul Plot (‘the property’ for short) was coparcenary joint Hindu family property or being a part of impartible estate of the State of Maihar, was clothed with the incidence of self-acquired and separate property.

3. In order to decide the controversy, we would record the facts in brief. (a) One Bachchu Lonia had acquired the property by means of perpetual lease deed dated 12th September 1873 executed by the Government. After the death of Bachchu Lonia, his son Ram Bharose by means of a registered sale deed dated 12th August 1896 had transferred the perpetual lease rights to Raghubir Singh, the then Maharaja of the State of Maihar. (b) Subsequently, Brij Nath Singh had succeeded to the throne/gaddi of the State of Maihar. Brij Nath Singh vide registered will dated 11th February 1966 had bequeathed the palace of Maihar and privy purse to Govind Singh, elder son of his first wife Surendra Kumari and rest of the properties including the property to his second wife Rani Tej Kumari for her son after making provisions for her maintenance during her lifetime. Brij Nath Singh had died on 13th October 1968. (c) Notwithstanding this will, Govind Singh, elder son of Brij Nath Singh from his first wife, as peshwa and karta of the joint Hindu family, had sold the property vide registered sale deed dated 18th November 1968 to Trijugi Narain Dubey and Surendra Nath Prayagwal. (d) On 20th November 1968, Chandra Nath Kala and Sankoo had instituted Original Suit No. 194 of 1968 for permanent injunction against Trijugi Narain and Surendra Nath claiming right in the property by adverse possession A B C D E F G H 1060 SUPREME COURT REPORTS [2019] 16 S.C.R. A B C D E F G H for last thirty years. Later on, they had filed an application for amendment of the plaint as Vimal Kumar Singh, power of attorney holder of Rani Tej Kumari, had executed sale deed dated 6th June 1969 of the property in favour of Chandra Nath Kala, which application for amendment claiming title based on the sale deed was allowed by the trial court. However, this order allowing the amendment was set aside by the High Court vide order dated 10th December 1971. (e) Chandra Nath Kala had then on 7th March 1972 instituted Original Suit No. 64 of 1972 for declaration and injunction against Trijugi Narain and Surendra Nath, impleading Sankoo as the third defendant predicating his right on the sale deed dated 6th June 1969 executed in his favour by Rani Tej Kumari. Sankoo admitted the claim of Chandra Nath Kala, while Trijugi Narain and Surendra Nath had filed written statement, inter alia, stating that Brij Nath Singh had no right to execute the will in favour of Rani Tej Kumari inasmuch as the property was coparcenary property of the joint Hindu family. Further, Govind Singh being the karta of the family, had validly executed the sale deed dated 18th November 1968 in favour of Trijugi Narain and Surendra Nath.

4. The trial court dismissed the two suits by separate judgments, both dated 25th March 1983, deciding several issues reference to which is not required in view of the limited challenge raised by the appellants, albeit it was held that Brij Nath Singh could not have by a will bequeathed the property that belonged to the joint Hindu family and, therefore, the sale deed dated 6th June 1969 executed by Rani Tej Kumari was void as she had no title. Further, the transfer by Govind Singh as the karta of the joint Hindu family in favour of Trijugi Narain and Surendra Nath was for benefit of the estate and absolutely legal. Suit No. 194 of 1968 was dismissed on the ground that Chandra Nath Kala and Sankoo had failed to prove acquisition of any right by adverse possession.

5. Civil Appeal No. 476 of 1983 filed against the judgment and decree in Suit No. 194 of 1968 was dismissed by the Additional District TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO (DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.] 1061 Judge, Allahabad by judgment dated 25th August 1983. By a separate judgment of the same date, Civil Appeal No. 517 of 1983 preferred against the judgment and decree in Suit No. 64 of 1972 was dismissed, inter alia, recording that Maihar State had ceased to exist in the year 1948 and, therefore, the rule of primogeniture governing impartible estates had ceased to apply. Consequently, Govind Singh’s legal right to the property inherited from his father could not have been taken away by Brij Nath Singh by executing a will giving only the palace and privy purse to Govind Singh and rest of the properties to Rani Tej Kumari.

6. The High Court, by the impugned common judgment dated 12th September 2008, in the two connected appeals, has reversed the findings of the trial court and the appellate court, inter alia, holding that the property was a part of the impartible estate governed by the rule of primogeniture. Accordingly, no member of the joint Hindu family including Govind Singh had a right in the property by birth. Brij Nath Singh was fully entitled to bequeath the property by will, which he had done vide will dated 11th February 1966 in favour of Rani Tej Kumari.

7. We would like to divide the question raised, though interconnected, into two parts. First, we are required to examine the customary law relating to impartibility of an estate and succession under the rule of primogeniture, and whether it was applicable to the property. The second aspect relates to the legal effect of the lapse of the sovereign paramountcy with the signing of the covenant and merger agreement by Brij Nath Singh with the Dominion of India and the enactment of the Hindu Succession Act, 1956 (‘Succession Act’ for short). In other words, whether the impartible properties of the former Ruler post the merger agreement or the enactment of the Succession Act had ceased to continue as impartible estate and were converted into coparcenary property of the joint Hindu family. While deciding the question, we would also examine the contention of the appellants that the perpetual leasehold rights being Nazul land were held as personal property of the Ruler and were not part of the sovereign or state properties of Raghubir Singh and Brij Nath Singh.

8. In order to decide the question, we must first notice the difference between the joint Hindu family and coparcenary. Coparcenary, as observed in Surjit Lal Chhabda v. Commissioner of A B C D E F G H 1062 SUPREME COURT REPORTS [2019] 16 S.C.R. A B C D E F G Income Tax, Bombay1, is a narrower body than the joint Hindu family. Under the Mitakshara Hindu Law, any property inherited by a male Hindu from his father, father’s father or father’s father’s father is ancestral property. The male descendant who inherits the property in the above manner did not inherit the property absolutely as a separate property, but as coparcenary property. Coparcenary consists of only those persons who acquire by birth an interest in the coparcenary property. Succession in coparcenary property is by survivorship. No coparcener can dispose of his undivided coparcenary interest by way of gift except with the consent of the other coparceners. There are restrictions on alienation of the coparcenary property, which would be legally valid only when made by the whole body of coparceners where they are adults, by manager/Karta, or father subject to limits/conditions, and by a sole surviving coparcener in some circumstances (see Mulla Hindu Law 22nd Edition, 2016 at page 397, § 253 – ‘Who may alienate coparcenary property’).

9. Outside the limits of coparcenary, there is a fringe of persons, both male and female, who constitute the undivided or joint family which consists of lineal descendants from a former ancestor and includes their wives and unmarried daughters. Joint Hindu family is, thus, a larger body consisting of group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. An individual who is a member of the joint Hindu family can hold separate or individual property and in addition, if he is a coparcener, have an interest in the coparcenary property of the joint Hindu family.

10. However, with the enforcement of the Succession Act with effect from 17th June 1956, any property inherited by an heir vide intestate succession in the event of death occurring after 17th June 1956 is absolute or individual property and not ancestral property. In the present case, we are not concerned with the concept of deemed partition of existing coparcenary property on death of a coparcener, execution of a will by coparcener of his undivided interest vide Section 30 of the Succession Act or the amendments made in the Succession Act vide Act No. 39 of 2005 applicable with effect from 9th September 2005.

11. An estate even if inherited and ancestral, partition of which is prohibited by custom and succession whereto is generally by the rule H 1 (1976) 3 SCC 142 TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO (DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.] 1063 of primogeniture is referred to as an ‘impartible estate’. An impartible estate is essentially a creature of custom, though could also owe its origin to the term of a grant, a statute or a family settlement. By virtue of the rule of primogeniture, the eldest or the first son succeeds to the property of the last holder to the exclusion of his younger brothers. Succession can also be under the rule of lineal male primogeniture which means that the descendant would be a continual descendant of the eldest male member of the eldest branch. The distinction between the impartible estate, to which the rule of primogeniture applies, and coparcenary property has been explained in Shiba Prasad Singh v. Rani Prayag Kumari Debi and Others2 in the following words: “Impartibility is essentially a creature of custom. In the case of ordinary joint family property, the members of the family have: (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. The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second is incompatible with the custom of impartibility as laid down in Sartaj Kuari’s case and Rama Krishnan vs. Venkata Kumara, and so also the third as held in Gangadhara vs. Rajah of Pittapur. To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right therefore still remains, and this is what was held in Baijnath’s case. To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights which a coparcener acquires by birth in joint family property no longer exist, the birthright of the senior member to take by survivorship still remains. Nor is this right a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband’s estate.”

12. The aforesaid passage in Shiba Prasad Singh (supra) has been quoted with approval in a number of judgments of this Court, 2 AIR 1932 PC 216 A B C D E F G H 1064 SUPREME COURT REPORTS [2019] 16 S.C.R. A including Thakore Shri Vinayasinhji (Dead) By LRs. v. Kumar Shri Natwarsinhji and Others3, wherein it has been observed as under: “The impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property, except as regards the right of survivorship which is not inconsistent with the custom of impartibility…”

13. It is, therefore, well established that an impartible estate is clothed with the incidents of self-acquired and separate property. Impartible estate even if inherited and ancestral, is not held by the coparcenary as a part of the coparcenary property, as the coparceners or members of the joint Hindu family do not have the right to partition or right to restrain alienation. Though the right to survivorship is not inconsistent with the custom of impartible estate, albeit it is different from the ordinary rule of succession under the Mitakshara Hindu law where all sons of the father are entitled to equal share in his estate, for the law of succession when the rule of primogeniture applies, is that the first-born son succeeds to the entire estate to the exclusion of the other sons.

14. As observed above, impartibility of an estate and primogeniture can have its origin in four forms, including custom. There are judicial precedents acknowledging and accepting the custom of impartible estate and that the rule of primogeniture was a general rule of succession in all the princely states. We must take judicial notice of this custom as applicable to princely states vide Section 48 of the Evidence Act,1872. Lieutenant Colonel James Tod, in his work titled ‘Annals and Antiquities of Rajasthan’4, at page 307 states: “...The law of primogeniture prevails in all Rajpoot sovereignties; the rare instance in which it has been set aside, are only exceptions to the rule.” G.K. Mitter, J. in his judgment in Madhav Rao Jivaji Rao Scindia v. Union of India and Another5 had observed: “It would appear that invariably the rule of lineal male primogeniture coupled with the custom of adopting a son prevailed 3 (1988) Supp. SCC 133 4 Oxford University Press, 1920. Reprinted in 1978 by M.N. Publishers, New Delhi 5 (1971) 1 SCC 85 B C D E F G H TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO (DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.] 1065 in the case of Hindu Rulers who composed of the bulk of the body.” A In Baboo Gunesh Dutt Singh v. Maharaja Moheshur Singh6, 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 whatever. By the general law prevailing in this District, and indeed generally under the Hindoo law, estates are divisible amongst the sons, when there are more than one son; they do not descend to the eldest son, but are divisible amongst all. With respect to a Raj as a Principality, the general rule is otherwise, and must be so. It is a Sovereignty, a Principality, a subordinate Sovereignty and Principality no doubt, but still a limited Sovereignty and Principality, which, in its very nature excludes the idea of division in the sense in which that term is used in the present case.”

15. In Pratap Singh v. Sarojini Devi and Others7 reference was made to the decision in Baboo Ganesh Dutt Singh (supra) and Mitter, J.’s opinion in Madhav Rao Jivaji Rao Scindia (supra) to hold that: “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.” This Court in Pratap Singh (supra) has reiterated the above principles and also observed that impartible estate and the application of the rule of primogeniture in the case of the sovereign Ruler must be presumed to exist, whereas in the case of zamindari estate or another impartible estate, the rule of primogeniture must be established by way of custom.

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, 6 (1854-7) 6 MIA 164: 1 Sar PCJ 521 7 (1994) Supp 1 SCC 734 B C D E F G H 1066 SUPREME COURT REPORTS [2019] 16 S.C.R. A B C D E F G H 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. In an unreported decision in Civil Appeal No. 226 of 1965 titled Mahant Hardial Singh v. Ajmer Singh decided on 20th November 1968 with regard to the powers of the Maharaja of Patiala, this Court had observed: “We think that this appeal must fail on the short ground that the sale in favour of Seth Banarsi Das cannot be impugned in view of the orders made by His Highness the Maharaja of Patiala. It must be remembered that at the time the transaction took place, Patiala was a native State and the Maharaja enjoyed uncontrolled sovereign powers. At that time he was the supreme legislature, the supreme judiciary and the supreme head of the executive. There was no constitutional limitation on his authority to act in any of the capacities. His orders were expressions of the sovereign will and they were binding in the same way as any other law, nay, they would override all other laws which were in conflict with them. So long as his order held the field that alone would govern or regulate the rights of the parties concerned though it could have been annulled or modified by him at any time he willed.” 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) 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. TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO (DEAD) THR. LEGAL REP. [SANJIV KHANNA, J.] 1067

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 above dictum has been approved by this Court in Sri Rajah Velugoti Kumara Krishna Yachendra Varu and Others v. Sri Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Others9; Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo and Others10; Pratap Singh (supra) and other cases.

18. In Adocate General of Bombay v. Amerchund11, Lord Tenterden had during the course of discussion asked: “What is the distinction between the public and private property of an absolute sovereign? You mean by public property, generally speaking, the property of the State, but in the property of an absolute sovereign, who may dispose of everything at any time, and in any way he pleases, is there any distinction?” [...] Lord Tenterden went on to observe in his judgement: “another point made, which applies itself only to a part of the information, is, that the property was not proved to have been the public property of the Peishwa. Upon that point I have already intimated my opinion, and I have the concurrence of the other Lords of the Council with me in its, that when you are speaking of the property of an absolute sovereign there is no pretence for drawing a distinction, the whole of it belongs to him as sovereign, and he may dispose of it for his public or private purposes in whatever manner he may think proper.”

19. The legal incidents of sovereign and State property were explained by the Gujarat High Court in D.S. Meramwala Bhayawala v. Bai Shri Amarba Jethsurbhai12 in the following words: