Tikka Shatrujit Singh v. Sukhjit Singh

P.K Bahri, J.:— This is a suit seeking separation of the shares of the plaintiffs after due partition of the joint properties. Plaintiffs No. 1 & 2 are the sons of defendant No. 1 whereas plaintiff No. 4 and defendant No. 2 are the daughters of defendant No. 1 and plaintiff No. 3 is the wife of defendant No. 1. Plaintiffs 1, 2 & 4 were minors at the time of the filing of this suit and the suit was brought through their mother and next friend, Plaintiff No. 3. The plaintiffs 1, 2 & 4 had since become major and had elected to continue this suit. Unfortunately Plaintiff No. 2 — Maharajkumar Amanjit Singh died on November 10, 1991. He had died intestate and his estate is inherited by his mother Plaintiff No. 3.

2. The case set up by the plaintiffs in brief is that the plaintiffs and defendants constituted Hindu Undivided Family and all of them have been joint in estate and worship and upto August 1976, they were also joint in mess. It is averred that defendant No. 1 had deserted the family since August 1976 and has been separately residing in Gymkhana Club, New Delhi. In para 8 of the plaint, the details of the co-parcenary properties have been given which are (1) double-storey residential house bearing municipal No. 90-A, Greater Kailash-1, New Delhi; (2) Commercial flat No. 101 on the first floor of the building known as Surya Kiran situated at Kasturba Gandhi Marg, New Delhi; (3) a residential house known as Villa Bouna Vista and Cottage Villa Chalet, servant quarters, garages, etc., located in Village Chuharwal, District Kapurthala; (4) a residential palace in Mussoorie known as ‘Chateau’ St. Helens, Mussoorie (5) all movables including furniture, carpets, etc., lying in Villa Kapurthala, Chateau St. Helens, Mussoorie and in property in Greater Kailash; (6) all jewellery and valuables lying in the sales of Toskhana inside the Villa, Kapurthala and in the safes of Chateau, Mussoorie; (7) jewellery lying in locked brief case kept in locker No. 325, Grindlays Bank, ‘H’ Block, Connaught Place, New Delhi; (8) jewellery lying in Societies General, Bouleward Haussmann, Paris, France; and (9) shares in joint stock companies, share certificates of which are lying in safe custody with the First National City Bank, Fort, Bombay. It is also pleaded that if there are some other properties which are co-parcenary properties, of which the plaintiffs for the present have no knowledge, if are found, they be also partitioned.

3. It is averred in the plaint that on or about January 13, 1977, the defendant No. 1 had filed a suit in this Court against plaintiff No. 3, his wife, seeking a declaration that the two properties namely Villa at Kapurthala and the Chateau, Mussoorie 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 jewelleries lying in different places in the said properties are also exclusively owned by him.

4. It is pleaded that defendant No. 1, who is the karta of the H.U.F has set up wrongful claims to the co-parcenary properties and has thus committed a gross misconduct which thus furnishes the cause of action for the plaintiffs to seek partition of the joint family/co-parcenary properties. It is averred that the grandfather of defendant No. 1 had succeeded to the Gaddi of Kapurthala as a male heir and the same constituted a valuable property right carrying priviliges, title and monetary benefits and all the properties of the Gaddi to which the grandfather of the defendant No. 1 succeeded including the income attached to the Gaddi were ancestral properties in his hands and the property acquired by grandfather of defendant No. 1 with the aid of any impartible estate became ancestral properties and are governed by law of inheritance of ancestral properties applicable to the Mitakshara School. It is further averred that the great grandfather of the plaintiffs 1 & 2 had built Chateau St. Helens at Mussoorie with the aid of ancestral funds and the properties acquired with the aid of any impartible estate by the great grand father of the grandfather of plaintiffs 1 & 2 became H.U.F properties. It is contended that 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 H.U.F co-parcenary properties as any property acquired with the aid of imparitable estate would become joint property with all the incidents of co-parcenary attached to it. It is pleaded that all the jewellery and pieces of art, etc. are ancestral properties. It was reiterated by the plaintiffs in the plaint that all the properties acquired by great grandfather of defendant No. 1 were acquired with the aid of ancestral funds and all the properties thus including the Gaddi and the income attached thereto became ancestral in the hands of grandfather of the plaintiffs 1 & 2 and so also in the hands of defendant No. 1.

5. It is pleaded that 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. In para 22 of the plaint, the plaintiffs have given the details of some of the share scripts held in the name of plaintiff No. 3 and defendant No. 1 which are also claimed to be H.U.F properties.

6. The defendant No. 1 has contested the suit and has filed a lengthy written statement. He had taken the preliminary objections to the maintainability of the suit on the ground that plaintiff No. 3 had no locus standi to represent plaintiffs 1, 2 & 4 but that objection no longer survives in as much as the minors had become majors and had elected to pursue the suit and even a statement was made by counsel for defendant No. 1 that defendant No. 1 did not dispute the right of the plaintiff No. 3 to act as next friend of minor plaintiffs in filing the present suit.

7. It is pleaded by defendant No. 1 that no partition could be claimed in respect of impartible estate and that the suit is also not maintainable because the properties in dispute had devolved on defendant No. 1 by virtue of two Wills dated January 16, 1949 and July 10, 1975 by his late grandfather and father respectively and defendant No. 1 is absolute and exclusive owner of the said properties which have been assessed for taxation purposes as his individual properties. It was also pleaded by defendant No. 1 that the Will of his father and of his grandfather have been duly probated not only in India but also in England & France and those cannot be challenged.

8. A reference is made by defendant No. 1 to a plea taken by plaintiff No. 3 in the written statement in suit No. 35/77 filed by defendant No. 1 that the alienation of the Gaddi and the properties comprising the Kapurthala state was also not permissible by the family custom. Then it is also averred by defendant No. 1 that plaintiff No. 3 had in that very written statement admitted that the Gaddi of Kapurthala and all the properties of the Maharaja for the time being used to devolve on his eldest son according to the rule of primogeniture by survivorship.

9. It is further pleaded that in the State of Punjab there existed no right of partition in respect of joint family estates during the life time of the father. Then pleas were taken that the suit has been brought by plaintiff No. 3 who has been instigated by some other persons namely Shri Anup Singh when in fact plaintiff No. 3 has no right in the properties. Defendant No. 1 claims that he being the only son of Maharaja Paramjit Singh of Kapurthala was recognised by the Government of India as a “Ruler” and he was the recipient of a privy purse of Rs. 2,70,000 per annum, till the enactment of the Constitution (Twenty Sixth) Amendment Act, 1971.

10. On page 9 of the written statement the defendant No. 1 has given the Geneological table of the family of defendant No. 1 starting from Baba Jassa Singh and defendant No. 1 has pleaded that among the ruling families of Punjab, succession in the Kapurthala family has always been according to the rule of primogeniture and the laws governing impartible estates and the properties of the Ruler of Kapurthala have always devolved in accordance with the rule of primogeniture as an impartible estate and the holder of the same holds such properties absolutely.

11. It is averred in the written statement that on May 5, 1948, the rulers of various states including of Kapurthala had entered into a Convenant with the concurrence of the Government of India for the integration of their territories into one union by the name of Patiala and East Punjab States Union which also provided that the ruler of each Convenant state shall be entitled to full ownership, use and enjoyment of all the private properties (as distinct from State properties) belonging to him on the date of his making over the administration of that State to the Raj Pramukh. It is pleaded that a declaration was made by the then Maharaja of Kapurthala with regard to his private properties which are shown in the circular dated April 20, 1949 and those properties are set out in Annexure 1 to the written statement. It is also pleaded that the said Covenant also provided that the privy purse which was to be given under the said Gaddi became impartible and the law of primogeniture applied to it and it was accepted by the government of India.

12. It was also pleaded by defendant No. 1 that Maharaja Jagatjit Singh during his life time had gifted jewellery, valuables and money to defendant No. 1 from time to time and the details of the said gifts are shown in Annexure 2 to the written statement. In Annexure 3 to the written statement, details of the jewellery and valuables have been given which came to defendant No. 1 vide the Wills of his grandfather and the father respectively and defendant No. 1 claims that they are his exclusive properties. The defendant No. 1 has pleaded that in law the property which devolves by principle of primogeniture vests in the holder thereof absolutely and exclusively.

13. It is pleaded by him that he had joined Indian Army as a Commissioned Officer in 1954 and he had been posted at various places and had been leaving his things to a large extent in the hands of plaintiff No. 3, his wife and thus, plaintiff No. 3 had access to the safes and repositories located in the Villa, Kapurthala, Chateau, Mussoorie and house in Greater Kailash. Defendant No. 1 also pleaded that in view of his being employed on active duty with the army involving great risk to his life, he had included the name of plaintiff No. 3, his wife, as the mere namelender, while acquiring several movable and immovable properties although entire consideration for the same were paid by defendant No. 1 with his own money and those properties are detailed out in Annexure 4 to the written statement. It is pleaded that he had been also giving money from time to time to the plaintiff No. 3 for maintenance and plaintiff No. 3 had purchased various properties which are detailed out in Annexure 5, from the said funds and plaintiff No. 3, in fact, has no right or title to the said properties. Defendant No. 1 has alleged that plaintiff No. 3 had removed certain jewellery and items belonging to him and thus, he had to file a suit No. 35/77 for recovery of those jewellery items and for restraining the plaintiff No. 3 from entering the Villa, Kapurthala, the Chateau, Mussoorie and from removing the valuables lying in property in Greater Kailash.

14. It is pleaded that plaintiff No. 3 had caused a clout on the title of defendant No. 1 in respect of his exclusive properties. He has mentioned that he retired as Brigadier and he had been getting salary during his employment with the army besides privy purse of Rs. 2,75,000 and he had acquired properties and assets as detailed out in Annexure VI from the said money. It is pleaded that the properties which have been acquired jointly in the name of plaintiff No. 3 exclusively belong to defendant No. 1 as plaintiff No. 3 had no source of her for acquiring any properties. Then he has given details of some of the lokcers in para 22 which are in the name of plaintiff No 3. He has mentioned in para 23 of the preliminary objection that the Villa properties stand in the name of plaintiff No. 1 & 2, although the entire consideration of the said property was paid by him and without prejudice to his contentions and for the limited purpose of the present suit, defendant No. 1 has no of objection to the Villa property continuing to be in the names of plaintiffs 1 & 2.

15. Coming to the pleas taken by the defendant No. 1 in parawise reply on merits, the defendant No. 1 has reiterated that the estate in dispute is an impartible estate and has devolved upon him by virtue of the Wills and even otherwise the properties devolved un defendant No. 1 by virtue of the rule of proper-mogeniture governing impartible estate and thus, he is absolute and exclusive owner of the same and the income derived from the said properties also belongs to him exclusively. He has mentioned that in respect of the impartible estate, a member of the family can only claim the right of survivorship and the impartible estate is not a co-parcenary property and thus, the suit for partition is not at all maintainable.

16. Defendant No. 1 has disclosed in para 7 of the written statement that out of the compensation received by him in 1975 for the U.P Zamindari from the Government of U.P, he had made over some specific assets to the family and declared the said assets as joint family assets and effected partial partition in March 1976 purely with a view to make suitable provision for the members of his family and also for obtaining the tax reliefs. He has mentioned that the said assets voluntarily given by defendant No. 1 to his family members are not subject matter of this suit.

17. Coming to the details of the properties mentioned in para 8 of the plaint, defendant No. 1 has pleaded that the plot of land in respect of House No. B-90A, Greater Kailash-I. New Delhi was purchased and constructed by him from his own personal funds and the same is his self-acquired property and he had voluntarily arranged for the plaintiff No. 3 to have one seventh share in the said house. In respect of the commercial flat No. 101, Surya Kiran, he has mentioned that if was purchased by him from his own funds and the same is his exclusive and absolute property although he had joined the name of plaintiff No. 3, his wife, as covendee in the sale deed of the said flat. He has also mentioned that the entire consideration for the purchase of residential house known as Villa Bouna Vista and Cottage, Villa Chalet, came from his own sources and he is exclusive owner of the same. He has further pleaded that the residential properties in Mussoorie known as Chateau St. Helens had vested in him exclusively in 1975 upon the demise of his father on the basis of the Will mentioned by him earlier and also under the law of primogeniture and the same is an impartible property. He has further mentioned that all the movables lying in the said house absolutely vest in him on the basis of the said Will and the jewellery and valuables are part of his impartible estate. He has further pleaded that he is the exclusive owner of the shares although name of plaintiff No. 3 has been included as joint owner of the shares as mere name-lender and he had acquired those shares with his own money. He has mentioned that there are certain life insurance policies, details of which are given in Annexure VI and he is the sole beneficiary of those policies.

18. The defendant No. 1 has reiterated, in para 15 of the written statement, that all the properties of late Maharaja of Kapurthala including the Gaddi have always devolved on the eldest son under the rule of primogeniture as an impartible estate and thus, they are not liable to be partitioned and moreover, he had acquired those properties under the Wills and thus, is absolute owner of the said properties and as he acquired those properties in 1955 on the death of his father, i.e prior to the enactment of the Hindu Succession Act 1956, so he continues to be the owner of the said property exclusively and those properties have never become joint Hindu family properties or coparcenary properties. He has pleaded that the said properties are part of his impartible estate and thus no partition in respect of the same can be claimed. He has also controverted the plea that the properties acquired from the income of the impartible state have become co-parcenary or joint Hindu family properties. He has also filed a counter claim for getting declaration that he is the exclusive owner of the properties mentioned in Annexures I to VI.

19. In replication, the plaintiffs controverted the pleas of the defendant No. 1 on all respects and reiterated that the properties in question are co-parcenary properties and plaintiffs have every right to claim partition of the same.

20. Initially, Issues were framed on March 7, 1980 but certain issues were modified and modified issues were framed on 11th March 1980, which are as follows: —

1. Whether the properties in suit are co-parcenary properties ? O.P.P

2. If issue No. 1 is proved, whether the properties are not liable to be partitioned ? O.P.D

3. Is the present suit not in the interest of plaintiffs 1 & 2 ? O.P.D

4. What are the rights of plaintiffs 3 & 4 and defendant No. 2 in the property in dispute in case they are found to be co-parcenary properties and partible ? O.P.P

5. Did Maharaja Jagatjit Singh make a declaration dated 11-8-1948 declaring Mussoorie Chateau and other associated properties to be his self-acquired properties ? If so, to what effect ? O.P.D

6. Did Maharaja Jagatjit Singh execute a Will dated 16-1-1949 ? If so, to what effect ? O.P.D

7. If issue No. 1 is proved in favour of the plaintiff, whether Maharaja Jagatjit Singh could bequeathe the property by Will dated 16-1-1949 ? O.P.D

8. Did Maharaja Paramjit Singh execute a Will dated 10-7-1955. If so, to what effect ?

9. If issue No. 1 is proved in favour of the plaintiff, whether Maharaja Paramjit Singh could bequeathe property by means of a Will dated 10-7-1955 ? O.P.D

10. What is the nature of the property held by defendant No. 1. ? O.P.P

11. Relief.

21. Before I deal with the various issues arising in this suit I may mention that on September 9, 1981, a joint, statement was made by counsel for the plaintiffs and counsel for defendant No. 1 which is to the following effect: —

“We agree that the properties B-90-A, Greater Kailash, Flat No. 101, Surya Kiran. New Delhi, and the shares of Continental Devices India Ltd., standing in the joint names of Plaintiff No. 3 and Defendant No. 1, were acquired from the sale proceeds of the Jagatjit Palace and Elysee Palace. Kapurthala. It is also agreed that Rs. 1,20,000/- in respect of the Villa at Kapurthala was paid to the heirs of Maharani Brinda Devi out of the sale proceeds of the Jagatjit Palace and Elysee Palace. This joint statement is given by the counsel for the parties without prejudice to their contentions as to the character of the Jagatjit Palace and Slysee Palace in the hands of Defendant No. 1. There were four Life Insurance policies mentioned in clause 4 (a) of Memorandum dated 11-3-1975. Two of these policies were to mature in the year 1979, and the other two were encashed (premature) in the year 1980, and the money was placed into the Hindu Undivided Family bank account with the Punjab & Sind Bank, Janpath, New Delhi by Defendant No. 1.

Parties are agreed that the above matter can be decided on the question of principle as to the character of the property in the hands of Defendant No. 1, and the custom prohibiting a son from claiming partition in the life time of the father. However, Defendant No. 1 does not press the plea that the present suit is not for the benefit of the minors. Other picas remain.”

22. In view of the aforesaid statement issue No. 3 is decided in favour of the plaintiffs.

23. Issues No. 1, 2 and 10 being inter-connected are being decided together.

24. The case set up by the plaintiffs, in brief, is that this particular family of the plaintiffs and the defendants from the very beginning has been a Joint Hindu Family governed by Mitakshara School of Hindu Law and the properties in question having come into the hands of defendant No. 1 from his grandfather being ancestral properties had become coparcenary properties as soon as plaintiff No. 1 was born in the family and with the birth of plaintiff No. 2, plaintiffs 1 & 2 and defendant No. 1 became co-parceners in the aforesaid coparcenary properties and they have a right to seek partition of the properties.

25. It has been pleaded by the plaintiffs that there was never any family custom by virtue of which any rule of primogeniture was applicable and the properties could be inherited only by the eldest male son and the said property could be deemed to be any impartible estate. The case of the plaintiffs is that even if earlier there was any rule of primogeniture with law of impartible estate governing the inheritance, the same stood abrogated with the coming into force of Hindu Succession Act and the properties in the hands of defendant No. 1 are to be deemed to be coparcenary properties of the Joint Hindu Family.

26. It is also the case of the plaintiffs that in the written statement of defendant No. 1 no proper plea has been taken with regard to the applicability of any custom in respect of rule of primogeniture and the plea taken by defendant No. 1 in the written statement that among the ruling families of Punjab succession in the Kapurthala Family has always been according to the rule of primogeniture and the laws governing impartible estate, in fact, cannot be given any importance as no particulars of the alleged custom governing the said family have been pleaded.

27. On the other hand, defendant No. 1 has pleaded that in fact, rule of primogeniture and the laws governing impartible estate have been in vogue in the family and the properties of the rulers of Kapurthala have always devolved in accordance with the aforesaid rule and the holder of the said properties is absolute owner of the same. It is pleaded that the Mitakshara Law applicable to Hindus with regard to existence of Joint Hindu Family and coparcenary properties was not applicable to the ruler who was holding the properties in his absolute capacity.

28. In order to appreciate the contentions being raised before me and before I deal with the evidence led by the parties in support of their respective pleas, I may mention that both the parties have referred to the Book Ex. PW1/51. The Rajas of the Punjab by Sir Lepcl Henry Griffin to show as to how Kapurthala State came into existence and came to be ruled by the ancestors of the parties. At page 495 of he Book, it has been indicated that as to whatever the real origin of the Kapurthala Family, it appears first in the history as of that Jat Kalal or Distiller caste to which Sadao Singh belonged, the founder of the villages of Ahlu (from which the Kapurthala Family takes its name of Ahluwalia), Halu Sadhu, Tor and) Chak, in the neighbourhood of Lahore. So, it is evident that Sadao Singh was not Raja or the Ruler or Emperor. He appears to have founded only some of the villages and the genealogy of the family starting from Sadao Singh is delineated at page 497 of the Book.

29. Badar Singh, great grandson of Sadao Singh, became disciple of Guru Gobind Singh and as he was not having any son, he sought blessings of the Guru and on 1718 Jassa Singh was born. After death of Badar Singh, his widow, brought her son Jassa Singh, to Delhi where Mai Sandri, widow of Guru Govind Singh, was living and till the age of 12 years Jassa Singh and his mother lived in Delhi and thereafter Bagh Singh, uncle of Jassa Singh, brought him back to Punjab and he helped to conduct business of his uncle Bagh Singh. Bagh Singh is stated to have been killed four years later in a Skirmish with the imperial troops at Harian.

30. Jassa Singh is stated to have become a Sirdar and he soon acquired a great reputation. It is Jassa Singh who fought various battles, consolidated his position by conquering different territories and the narration of his history in this Book is replete with his valour in the battles he fought. He had seized many territories. It appears that during the said period the Mughal Empire was floundering and various confederations under different Sirdars came into existence in the area of Punjab and Ahmad Shah from Kabul had been making raids in that area and had been establishing his authority and then used to retreat to his native place leaving the field open again for different Sirdars to take away these territories conquered by Ahmad Shah. Jassa Singh came to be known amongst his followers as Sultan-e-Kapurthala and it is mentioned that this title was not acknowledged by Sikhs generally. It is not necessary to refer to various exploits of Jassa Singh. Suffice it to mention that he was controlling various territories which he had acquired by dint of his valour by sword. He had also reconstructed Darbar Sahib which had been earlier devastated by Ahmad Shah on is different raids. Jassa Sing had no issue. On his death, his second cousin Bagh Singh succeeded to the estate. After death of Bagh Singh, his only son Fatah Singh became the Chief and he succeeded to the estate. It appears that he and Maharaja Ranjit Singh had joined hands and had taken some solemn oath to treat each other as real brothers and they had joint exploits in acquiring different territories and ultimately a treaty was signed with Lord Lake who represented the East India Company. This Treaty was negotiated by Fatah Singh for himself governing his territories and also on behalf of Maharaja Ranjit Singh. During his time it appears that the British protection was being sought by him vis-a-vis Maharaja Ranjit Singh.

31. Certain territories which were taken over by Maharaja Ranjit Singh were restored to Fatah Singh on British Government persuading Maharaja Ranjit Singh to restore those territories to Fatah Singh. Fatah Singh died in October 13, 1937 and he had left behind Nihal Singh and Amar Singh, two sons. The British Government acknowledged Nihal Singh as the Chief but Maharaja of Lahore and his minister Raja Dhyan Singh had no intention of recognising Nihal Singh without gaining something out of it. Amar Singh, younger brother of Nihal Singh was encouraged by them to grab the power from his brother Nihal Singh. It appears that Amar Singh had conspired to get killed his brothers Nihal Singh and Maharaja of Lahore had tried to bring about some settlement between the two brothers and required Nihal Singh to allow Amar Singh a separate maintenance of Rs. 30,000 a year instead of Rs. 1,00,000 as demanded by Amar Singh. Amar Singh, however, prematurely died in an accident. In the first Sikh war, it appears that Nihal Singh had sided against the British and after the defeat of Sikhs certain territories of Nihal Singh were confiscated and in the second Sikh war, he supported British Government whole-heartedly. He had died on September 13, 1852. Nihal Singh had behind three sons, namely, Randhir Singh, Kharrak Singh and Harnam Singh. By virtue of his Will dated July 11, 1852, which is reproduced on page 553 of the Book, he had proceeded divide his estate.

32. It may be also mentioned here that for the services rendered by S. Nihal Singh in the Second Anglo-Sikh War of 1849-50, the Governor General of the East India Company conferred the title of ‘Raja’ on him.

33. As far as the will of Raja Nihal Singh is concerned, by which he wanted that after his death the estate be divided into three parts amongst his three sons, the same was not given effect to as both the younger brothers had given their consent for the estate to remain united but later on Brikrama Singh and Suchet Singh, younger brothers, raised disputes and wanted the state to be divided Suchet Singh was given some territory as share but ultimately, in view of the services rendered by Raja Randhir Singh to the British Government during the disturbances of the year 1867, the British Government annulled the Will of Raja Nihal Singh and recognised Raja Randhir Singh as the successor of the estate being the eldest son.

34. Raja Randhir Singh expired in the year 1870 and he had been, during his life time, granted large Taluqdari in Oudh by the British. He had left behind two sons namely, Kharak Singh and Harnam Singh. The entire estate was inherited by his elder son, Raja Kharak Singh whereas his younger brother, Harnam Singh got only maintenance allowance. Harnam Singh had embraced Christianity when he married a Christian lady in the year 1876. Raja Kharak Singh died in the year 1877 leaving behind only one son, namely, Maharaja Jagatjit Singh. All the immovable properties and the estate were inherited by Maharaja Jagatjit Singh. During his life time, Maharaja Jagatjit Singh and built various properties and had also given gifts to his sons find state officials. He was of illustrious character and had represented India at the League of Nations at Geneva.

35. It is to be remembered here that the paramount power was the British and it was the British Government which was recognising the successors to the Raja of Kapurthala from time to time since the demise of Raja Nihal Singh. In view of the various treaties entered into between the ruler of Kapurthala State and the British Government, the ruler was left with only managing the affairs of the territory under his control infernally and was to pay some tributes to the paramount power. Maharaja Jagatjit Singh is alleged to have executed a Will in favour of his eldest son, Tikka Paramjit Singh, in which he also recited that the estate was to be inherited by Tikka Paramjit Singh on the basis of the rule of primogeniture. He had left behind two more sons namely, Karamjit Singh and Ajit Singh. They were granted only maintenance allowances. The British paramountcy lapsed on August 14, 1947 and Maharaja Jagatjit Singh entered into a merger agreement on August 20, 1948 by virtue of which a separate state of Patiala and East Punjab States Union (PEPSU) came into existence. Before this merger agreement was executed, a declaration was made by Maharaja jagatjit Singh with regard to his private properties in which he mentioned that they are his exclusive properties. From the period August 14, 1947 to August 20, 1948, Maharaja Jagatjit Singh was sovereign absolute ruler of Kapurthala State. Maharaja Jagatjit Singh died in the year 1949. Maharaja Paramjit Singh, his eldest son, succeeded to the properties left behind by his father to the exclusion of his other brothers and he also is alleged to have executed a Will dated July 10, 1955 bequeathing his properties in favour of his only son, defendant No. 1 by recognising the rule of primogeniture. Maharaja Paramjit Singh died in the year 1955.

36. The learned counsel for defendant No. 1 has contended that the rulers of Kapurthala State were sovereign rulers and being absolute monarchs, were not subject to any law as they were themselves the fountain head of law and succession to such rulers had been always by rule of primogeniture by virtue of which the eldest male lineal descendant succeeded to the Raj and the property left by the Ruler which assumed the nature of impartible estate in respect of which no partition could be claimed. He has contended that the properties of such ruler could never be termed as coparcenary properties or Joint Hindu Family properties. In support of his contention that the rule of primogeniture was the general custom applicable to Hindu Rulers, he has made reference to certain passages appearing in various books. He has argued that in view of the consistent custom being followed, rule of primogeniture in respect of the Hindu Rulers of India in the ancient and medieval history, the British Government, after becoming a paramount power, continued to recognise the said custom by recognising the eldest son as the Raja for a particular state. He has also pointed out that even after integration of the states after independence, the Government of India had been also giving effect to the same rule of primogeniture for recognising the successors to the rulers off the various states which had been merged with the territories of India. He has referred to certain administrative reports wherein also the eldest son of the Ruler has been described as Heir Apparent in respect of almost all princely states. He has pointed out that the term “Heir Apparent” used in respect of the eldest son also gives recognition to the Rule of Primogeniture. He has pointed out that the words ‘Maharaja’ or ‘Raja’ commonly are used for the ruler whereas the younger brothers of the ruler are called ‘Kunwars’ and the eldest son of the Ruler is called ‘Tikka’ or ‘Yuvraj’ and the younger sons are usually referred to as ‘Maharaj Kumars’ or ‘Raj Kumars’ or ‘Knnwars’. He has pointed out that only allowances have been given to the younger broth of the Ruler. He also referred to an enactment of the Raja Faridkot's Estate act 5 of 1948 which again recognised the Rule of Succession on the basis of Rule of Primogeniture. He has made reference to certain judgments dealing with the princes of different states wherein the Rule of Primogeniture had been recognised.

37. The counsel for defendant also referred to admission of the plaintiff No. 3 made in written statement filed in Suit No. 35 of 1977, certified copy of which is Ex. D-49, wherein she had admitted that properties in the family had devolved upon the father of the plaintiff as well as on the plaintiff through survivorship by virtue of the Rule of Primegeniture. It appears that the plaintiff No. 3 in that suit had got amended the written statement to withdraw the said admission. The counsel for defendant No. 1 has, however, argued that the said admission does not vanish and still can be taken note of as proof of the existence of the Rule of Primogeniture in the ruling family of Kapurthala State. The learned counsel for defendant No. 1 has pointed out that in her testimony in this Court also, she had not made a statement that the Rule of Primogeniture was not being followed in the Kapurthala family. He has also drawn my attention to the statement of Dewan Piare Lal, Advocate, DW-2 who was the counsel in the Succession case with regard to the Will of Maharaja Jagatjit Singh and who also knew the ruling family of Kapurthala personally and also to the statement of Desraj Kapur, DW-3 and the statement of defendant No. 1 who have all deposed that the rule of primogeniture was being followed by the rulers of Kapurthala State. He has also referred to statement of Major Kirpal Singh made in Succession proceedings in Kapurthala Court while proving the Will of Maharaja Paramjit Singh, copy of same being D-17, wherein also he deposed that the rule of primogeniture applied to the ruling family of Kapurthala and he reiterated the statement in Court proceedings with regard to Supplementary Succession Certificate with regard to the estate of Maharaja Jagatjit Singh, copies of same being D-13 and D-15. Major Kirpal Singh is since dead. He had been in service of the Kapurthala family from the early 1930's.

38. As far as the documents being relied upon by counsel for defendant No. 1 are concerned, the same comprise of apart from the Wills of Maharaja Jagatjit Singh and Paramjit Singh, execution and validity of which are in challenge and will be decided by me under the relevant issues, the reference is made to reports of administration of the Punjab and its dependencies marked X-22 to X-27 of the period 1867 to 1918. The factum of grant of maintenance to junior members is evident from the plaintiff's own evidence, contents of letter dated September 19, 1837 Ex. D-63 by which Maharaja Ranjit Singh required S. Nihal Singh to grant maintenance of Rs. 30000/- to his brother Kanwar Amar Singh. D-64, letter dated March 24, 1940 by Maharaja Sher Singh of Lahore to S. Nihal Singh for grant of maintenance Jagir to Kanwar Amar Singh, D-61, and agreement arrived at between Amar Singh and Raja Nihal Singh dated July 4, 1837 by which he expressed gratitute for getting maintainance Jagir of Rs. 27,000/- per annum, D-62, another translation of the Will executed by Kanwar Amar Singh accepting the said maintainance and also to certain portions of the book, Talukhdari Law of Oudh 1910 by Shall Behari Lal, pages 288, 289 and 541 showing application of law of rule of primogeniture in respect of Oudh property granted to the ruler of Kapurthala Governed by Oudh Estates Act 1869. The use of the title ‘Heir Apparent’ in the Memorandum of Indian States, 1940, (Ex. D-22) and the Administration Reports of 1910-11 (X-26), 1917-18 (X-27) and Ex. D-59, copy of Gift Deed of Maharaja Jagatjit Singh dated September 7, 1925 gifting some property in Oudh to his younger sons leaving out the ‘Heir Apparent’, who is referred to as the ‘Waliahad’ who was to succeed to his entire estate and properties and D-37, a Certificate issued by the Government of India dated July 8, 1949 recognising Maharaja Paramjit Singh as a heir to his late father.

39. So, it is argued by learned counsel for defendant No. 1 that keeping in view the history of Kapurthala family and the facts evident from the documents as well as from the oral evidence do go to show unmistakably that the rules of primogeniture was being followed by the Kapurthala ruling family since the time of Raja Bidar Singh.

40. The learned counsel for defendant No. 1 also pointed out that the rulers of Kapurthala family, being sovereign rulers, were absolute owners not only of the Raj property but also of the other properties and there was no distinction being maintained by the absolute ruler in respect of those properties. He has referred to statement of plaintiff No. 3 wherein she had admitted that Maharaja Jagatjit Singh was the sovereign ruler and the zamindari in Oudh was his private property and as a ruler of a sovereign state, the entire estate belonged to Maharaja Jagatjit Singh and everything belonged to him and he was a ruler for about six decades.

41. He has argued that a sovereign ruler possibly cannot be termed as a ‘Karta’ of a Joint Hindu Family and such a sovereign ruler is a supreme legislature, the supreme judiciary and the supreme head of the executive and there could be no limitations on his authority and apparently so because even if he acted against any alleged rule of law, there was no Court to enforce compliance by the sovereign ruler of any particular provisions of personal law.

42. He has then referred to Indian history as recorded in the White Paper of Indian States (1950 edition) which also records that the rulers in India made no distinction between private and State property and could freely use for personal purpose any property owned by their respective States. He has also pointed out to the statement of plaintiff No. 3 wherein she admitted that as a ruler of the sovereign state, entire estate belonged to Maharaja Jagatjit Singh meaning thereby that there was no distinction between State property and the private property contemplated. She has also admitted that in the year 1945, it was not necessary for any ruler to make a distinction between what belonged to him in his private capacity and what belonged to the State.

43. The learned counsel for defendant No. 1 also pointed out that at no point of time any equal share of the properties of the ruler has been given to other junior sons of the ruler and that is also indicative of the practice of the rule of primogeniture in the said family. He has then referred to the evidence of the plaintiffs and pointed out that the plaintiffs have failed to explain how the State ruled by a sovereign ruler could be a coparcenary property and they have not pointed out any single case of partition and had not pointed out that in case any coparcenary existed in the initial stages, how that coparcenary continued when a particular member of the coparcenary withdrew from the coparcenary and have not explained how all the time the eldest son succeeded to the Raj and the properties and why only maintenance allowance was given to the junior members of the family and why the elder son was referred as ‘Heir Apparent’ or The Tikka Raja' in the various documents.

44. So, it is urged by learned counsel for defendant No. 1 that the properties in question were inherited by eldest son of the ruler from time to time and there were, at no time, coparcenary properties and defendant No. 1, who is presently holding the properties on the basis of the rule of primogeniture is absolute owner of the said properties and thus, no petition could be claimed in respect of these properties during the life time of defendant No. 1. Learned counsel for defendant No. 1 has also advanced arguments with regard to the present position of the said properties after the coming into force of Hindu Succession Act, 1956. I will deal with the said contentions after deciding the question whether defendant No. 1 has acquired the properties or not by virtue of any rule of primogeniture.

45. Counsel for the plaintiffs has, however, contended that at the time the ancestors of the parties were not the rulers by any stretch of meaning they constituted a Sikh family and were governed by Mitakshara School of Hindu Law and thus there existed a Joint Hindu Family and thus, the said family is governed by all the incidences of Joint Hindu Family as contemplated by Mitakshara Hindu Law and as defendant No. 1 has inherited the properties from a common ancestor i.e from his father and grandfather, they are ancestral properties and as soon as defendant No. 1 had married plaintiff No. 3 there came about Joint Hindu Family and the properties held by defendant No. 1 became Joint Hindu Family properties and as soon as first son was born, the Joint Hindu Family properties became coparcenary properties and thus, the sons of defendant No. 1 have a right to claim partition of the properties in question which are coparcenary properties.

46. He has also contended that keeping in view the pleas taken in the written statement it is obvious that defendant No. 1 had not set up any custom by virtue of which he could claim that the said properties were inheritable by any rule of primogeniture. He has argued that only custom pleaded by defendant No. 1 is that according to the custom prevalent in Punjab there existed no right of partition in respect of the Joint Family estates in the son during the life of his father. He has contended that although a clear plea has been taken regarding prevalence of custom in this respect but defendant No. 1 has not set up any clear plea regarding any custom applicable to the family by virtue of which rule of primogeni-rule is applicable. He has argued that defendant No. 1 has defendant No. 1 has set up rule of primogeniture governing the family but he has not pleaded as to on what basis the said rule is applicable. He has argued that defendant No. 1 has also not pleaded whether the rule of primogeniture was applicable to the State properties and last to the Private properties. He has pointed out that a custom must possess certain legal attributes, namely, conscious and voluntary acceptance of the custom/regularity, antiquity, certainty including uniformity and notariety, reasonableness and in consonance with public policy and morality. He has urged that keeping in view the evidence brought on the record none of these ingredients for establishing a custom stand proved. He has argued that in absence of any custom haying been proved the Personal Hindu Law is applicable to the family and thus, the properties in question should be held to be coparcenary properties.

47. It is further pointed out that mere fact that paramount British power had imposed the rule of primogeniture on the family would not lead to any inference that any custom has come into existence governing the said family by virtue of which rule of primogeniture was applicable. It is contended that as soon as the British Paramountancy lapsed the rule of primogeniture forced on the family by the Paramount Power also stood extinguished.

48. He has referred to the history of the family and pointed out that at no point of time any such custom had developed in governing the family by which rule of primogeniture was being followed. He has even pointed out that with the coming into force of the Indian Independence Act, 1947 and the State of Kapurthala having merged, the sovereign power of Maharaja Jagatjit Singh coming to an end and the incidence of Mitakshara Hindu Law, which may be considered remaining dormant as long as Maharaja Jagatjit Singh was soveriegn ruler revived as soon as he became an ordinary person and thus, at least from that day onward the properties in question would be deemed to be coparcenary properties. He has pointed out that the act of the President of India in recognising Maharaja Paramjit Singh as ruler for the purposes of conferring personal rights, privileges, dignities and titles and for payment of privy purses in terms of the covenants entered into between Maharaja Jagatjit Singh and the Government of India could not have changed the nature of the properties from coparcenary properties to self-acquired properties in the hands of Maharaja Paramjit Singh and later on in the hands of defendant No. 1.

49. He has further argued that with the enactment of the Constitution (Twentysixth Amendment) Act, 1971 which came into/force on December 28, 1971 and the enactment of the Rulers/Abolition of Privileges Act, 1972, which came into force on September 9, 1972, the said personal privileges and the privy purses also came to an end and defendant No. 1 became an ordinary citizen and the properties being held by him have to be treated as coparcenary properties.

50. He has argued that whatever may be position applicable to the State properties vis-a-vis the custom of succession in accordance with the rule of primogeniture and impartible estate yet no such rule would have been applicable to the Private properties being held by Maharaja Jagatjit Singh and thereafter by his son Maharaja Paramjit Singh and now by defendant No. 1. He has pointed out that the political power of the British and subsequently the terms of any instrument of merger and thereafter the covenants entered into with the Government of India only referred to the succession to the estate or Gaddi and the alleged rule of primogeniture would have governed succession to the estate or Gaddi and not to the private properties being held by the Rulers of Kapurthala. He has argued that in the written statement defendant No. 1 has not pleaded any specific and distinct custom pertaining to succession in accordance with the rule of primogeniture and impartible estate in the ruling Kapurthala family in respect of the private properties.

51. The learned counsel for the plaintiffs has also contended at the time of arguments that defendant No. 1 has no right to rely on the custom of primogeniture applicable to other royal families of India as no such plea has been taken in the written statement that such custom was prevalent in other royal families of other States in India. He has also drawn my attention to the proceedings recorded on March 9, 1981 by Charanjit Talwar, J. (as His Lordship then was) wherein a finding was given that from the averments made in the written statement it cannot be said that defendant No. 1 has alleged any custom of succession in any other States and the evidence was not allowed to be led on any such point which was not pleaded in the written statement.

52. The learned counsel for the plaintiffs has further submitted that even assuming for the sake of arguments as urged by counsel for defendant No. 1 that during the period August 15, 1947 to August 20, 1948, i.e after the British Power has come to an end and before the Kapurthala State was merged with the other territories of India, Maharaja Jagatjit Singh was a sovereign ruler and was supreme legislature, supreme judiciary and a supreme head of the executive being absolute monarch and there was no law applicable to him, he being the fountain head of law and his will and volition were the laws and he was not governed by any custom or any other restrictions of Mitakshara Hindu Law, then obviously he could not be deemed to be governed by any rule of primogeniture and impartible estate and if that is so, as soon as he ceased to be the sovereign ruler and became an ordinary citizen, he came to be governed by the law of Mitakshara Hindu Law and the properties in his hands became Joint Hindu Family properties and subsequently when properties were inherited by his son and thereafter by defendant No. 1, the properties continued to be coparcenary properties. So, he has urged that there is an inherent inconsistency in the contentions being raised on behalf of defendant No. 1. On the one hand, the plea is taken that the role of primogeniture and impartible estate was applicable to the ruling family of Kapurthala yet on the other hand the contention is being raised that Maharaja Jagatjit Singh was the monarch and absolute ruler not governed by any laws and such pleas are not reconciliable. He has also pointed out that on August 11, 1948, when Maharaja Jagatjit Singh was an absolute monarch and absolute ruler, he had made a declaration (Ex. D1) detailing out the properties as his private and personal properties having full power of disposition over them. If that is so, it is argued that there could be no question of application of any rule of primogeniture and impartible estate to the said properties which have been declared by him as his private and personal properties to be inherited by his heirs. So, he has argued that by virtue of the said declaration, he absolutely abolished any customary rule of primogeniture and impartible estate being applicable to such properties.

53. He has further argued that although the execution and validity of the Will of Maharaja Jagatjit Singh set up by defendant No. 1 are controverted by the plaintiffs yet assuming for the sake of arguments that he had executed such a Will dated January 16, 1949, even then by virtue of that Will he had only made it clear that his eldest son Paramjit Singh would inherit those properties and he had bequeathed those properties to his son, he being his sole legal heir. So, it is urged that the properties were inherited by Maharaja Paramjit Singh being the heir and not on the basis of any rule of primogeniture although in the Will reference to such a rule has been made but the bequest is made in favour of the legal heir and thus, the nature of the properties in the hands of Maharaja Paramjit Singh continued to be coparcenary properties as in that very Will it is mentioned that after demise of Maharaja Paramjit Singh the properties are to be inherited by him only legal heir, namely, defendant No. 1. So, it is argued that in the hands of defendant No. 1 the properties were definitely coparcenary/ancestral in nature.

54. Similar inference is sought to be drawn from the alleged Will of Maharaja Paramjit Singh dated July 10, 1955. It has been also urged by the learned counsel for the plaintiffs that with the coming into force of Hindu Succession Act, 1956, the alleged custom of primogeniture and impartible estate came to be abolished and thus, the properties in question now in the hands of defendant No. 1 assumed the character of copercenary properties.

55. We have to determine in this case as to whether the properties in question are coparcenary properties or not on the date the suit was filed. It is undisputed that parties on the date of filing of the suit are governed by Mitakshara Hindu Law and under the Mitakshara Hindu Law a Joint Hindu Family comes into existence as a creature of law and the coparcenary comes into existence again as creature of law amongst the male members of the Joint Family who fall within four degrees from a common male ancestor at any given time. Joint Hindu Family property comes about if the property is ancestral or the property has been acquired with the use of Joint Hindu Family funds or from the nucleus of the Joint Hindu Family property or a member of the family voluntarily putting his self acquired property into the hotch potch. But when there are coparceners present in the Joint Hindu Family the said Joint Hindu Family properties become the coparcenary properties. The ancenstral property under the Mitakshara Hindu Law comes into existence if the property is acquired from the ancestor in any unbroken line of male descent within four degrees.

56. An impartible estate is an estate partition of which is prohibited by a custom and an estate which is inherited by rule of primogeniture also has a characteristic of impartible estate attached to it. One of the basic facts to be kept in view in the present case is that the ancestors of the parties were undeniably sovereign rulers of erstwhile Kapurthala State. I have already detailed out the family history how the ancestors of the parties became rulers of the erstwhile State of Kapurthala and it may be emphasized that as high power contacting parties the erstwhile rulers of Kapurthala State entered into various treaties and covenants at first with the British Government and after independence with the Government of India. In between August 15, 1947 and August 20, 1948, when the Kapurthala State was merged in the PEPSU by virtue of a covenant signed by the rulers of different States in that respect, Maharaja Jagjit Singh was definitely a sovereign ruler as he owed no allegiance to anyone else during that particular period. Earlier he was a ruler as far as internal administration of the State of Kapurthala was concerned and he was recognised as such by the treaties entered into with the British Government.

57. The question which needs consideration is as what was the nature of the properties held by Maharaja Jagjit Singh during his life time. Maharaja Jagjit Singh admittedly died on June 19, 1949. At the moment, I am not considering the question as to whether there was any customary law applicable to the ruling family of the erstwhile Kapurthala State by virtue of which the succession was governed by rule of primogeniture. What could be the nature of properties in the hands of a sovereign ruler like Maharaja Jagjit Singh stands now determined by the Supreme Court in Civil Appeal No. 534 of 1983, Revathinnal Balagopala Varma v. His Highness Sri Padmanabhadasa Varma (since deceased) and others (1), and Civil Appeal No. 535 of 1983, Indira Bayi and others v. His Highness Sri Padmanabhadasa Varma (since deceased) (2), decided on November 28, 1991. It is laid down by the Supreme 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. The Supreme Court also emphasized that when they are speaking of the property of an absolute sovereign there is no pretence of drawing a distinction, the whole of it belongs to him as sovereign and he may dispose of it for public or private purpose in whatever manner he may think. The Supreme Court quoted with approval a judgment of the Gujarat High Court in D. S. Meramwala Bhayala v. Ba Shri Amarba Jethsurbhai (1968) (3) Gujarat Law Reporter Vol. 9 Page 609. It is useful to quote some relevant portion of the said judgment which have ample bearing on the point arising in this case:

“There is therefore, no doubt that the Khari-Bagasara Estate was a sovereign Estate and the Chief of the Khari-Bagasara Estate for the time being was a sovereign ruler within his own territories subject to the paramountcy of the British Crown prior to 15th August 1947 and completely independent after that date.

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 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 to do what he likes with the Estate. During his lifetime one else can claim an interest in the Estate. Such an interest would be inconsistent with his sovereign: To grant that the sons acquire an interest by birth or adoption in the Estate which is a consequence arising under the municipal law would be to make the Chief who is the sovereign Ruler of the Estate subject to the municipal law. Besides, if the sons acquire an interest in the Estate by birth or adoption they would be entitled to claim the rights enumerated above but these rights cannot exist in a sovereign Estate. None of these rights can be enforced against the Chief by a remedy in the municipal Courts. The Chief being the sovereign Ruler, there can be no legal sanction for enforcement of these rights. The remedy for enforcement of these rights would not be a remedy at law but resort would have to be taken to force for the Chief as the sovereign Ruler would not be subject to municipal law and his actions would not be controlled by the municipal Courts. Now it is impossible to conceive of a legal right which has no legal remedy. If a claim is not legally enforceable, it would not constitute a legal right and therefore, by the very nature of a sovereign Estate, the sons cannot have these rights and if these rights cannot exist in the sons, it must fallow as a necessary corollary that the sons do not acquire an interest in the Estate by birth or adoption . . . . . .

. . . . . Now it was not disputed on behalf of Meramvala that if prior to merger the Estate did not partake of the character of ancestral coparcenary property, the properties left with Bhayawala under the merger agreement would not be ancestral coparcenary properties: if Meramvala did not have any interest in the Estate prior to merger, he would have no interest in the properties which remained with Bhayavala under the merger agreement. It was not the case of Meramvala and — it could not be the case since the merger agreement would be an Act of State — that as a result of the merger agreement any interest was acquired by him in the properties held by Bhayavala. Bhayavala was, therefore, the full owner of the properties held by him and was competent to dispose of the same by will . . .

. . . .The argument of Mr. I. M. Nanavati, however, was that the effect of applicability of the rule of primogeniture by the paramount power was that the rights of coparceners under 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 . . . . . . .”

58. From this judgment it clear that the characteristics of ancestral coparcenary property: (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, are not applicable to the properties owned by the sovereign ruler and that the son does rot acquire any interest in such properties either by birth or adoption and even after the state of the sovereign ruler has merged with India the character of his properties does not change. In the case of Revathinnal Balagopala Varma the Supreme Court referred to all the previous judgments which have been cited before me also and has concluded that there is no distinction between the private and public properties owned by the sovereign ruler and the incidents of ancestral or coparcenary properties are not at all applicable to such properties held by the sovereign ruler. It is also did down in this judgment that the mode of succession also does not make any difference. As soon as one sovereign ruler succeeds another, all the incidents of sovereignty are then possessed by the successor sovereign ruler. In the said case also, the sovereign before surrendering his sovereignty entered into a covenant with the Government of India and the terms of the covenant gave an option to the sovereign ruler to furnish a list of such properties which he wanted to retain as personal properties and he having furnished such a list the Supreme Court held that on such list being approved by the Government of India the properties would be deemed to be held by the said sovereign ruler as personal properties in the capacity of being their absolute owner.

59. A contention was raised before the Supreme Court that if the Joint Hindu Family properties were by custom or otherwise impartible, the incidence of partible Joint Hindu Family property will get revived on the commencement of the Hindu Succession Act, 1956 and the Kerala Joint Hindu Family System Abolition Act, 1975. The Supreme Court held that in view of the finding that the properties in the hand of the sovereign ruler were not Joint Family properties at any time, the question of reviving the nature of the property from impartible Joint Hindu Family property to partible Joint Hindu Family property did riot arise.

60. After Maharaja Jagatjit Singh ceased to be the ruler and he entered into a covenant with the Government of India which protected certain privileges of the ruler and awarded some Privy Purse to the ruler, he became an ordinary citizen of this country and became subject to all the laws of this country. I may refer to certain judgments which make this position very clear. In Rama Varma Bharathan Thampuran v. State of Kerala & Others AIR 1979 SC 1918, (4) just two days before the merger of the princely State of Cochin, Maharaja of Cochin in exercise of his law making power issued a proclamation declaring the entire royal estate and palace funds as impartible. In 1961 the legislature passed an Act pertaining to The Valiamma Thampuram Kovilakam Estate and the Palace Fund and in 1968 another legislation was enacted pertaining to the said matter by the Kerala Legislature. The dispute arose as to the effect of the said legislation on the declaration given by the Ex Maharaja. The Supreme Court held while referring to 26th Constitution Amendment Act of December 1971 that with the denudation of his royal privileges the Maharaja stepped down to the level of the karta of a joint Hindu family and the said properties and the funds became subject to the enactments made by the Legislature of Kerala.

61. In the wellknown case of H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur & Others etc. v. Union of India, AIR 1971 SC 530, (5) it was held by the Supreme Court that the Ex-Rulers are citizens of India like other citizens albeit with some privileges and privy purses which other citizens do not get. It was further held that a proclamation and the execution of merger agreements resulted in complete extinction of States and Unions of States as separate units and the princes ceased to retain any vestige of sovereign rights or authority qua their former States and they acquired the status of citizens of India. In this connection, the law laid down by the Supreme Court may be seen in Kunwar Shri Vir Rajendra Singh v. Union Of India †, AIR 1970 SC 1946 (6) and H. H. the Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v. The State of Rajasthan & Others, AIR 1964 SC 444. (7) In the case of Commissioner of Income-tax v. H. E. H. Mir Osman Ali Bahadur, AIR 1966 SC 1260, (8) it was held that Nizam of Hyderabad became subject to payment of income-tax after he ceased to be the ruler even in respect of income which had accrued to him during the period when he was a ruler because at the time of assessment he had become an ordinary citizen and amenable to ordinary laws of the land.

62. I may also refer to Ahmadunnisa Begum v. Union of India, AIR 1969 AP 423, (9) in which the position of Nizam vis-a-vis private properties and the rights of succession came up for consideration before a Division Bench of Andhra Pradesh High Court. In this case the Court held that recognition of the successor by the Government of India is an act of the State and a political decision depending much upon the paramount power in the past and now by the President under the Constitution and his recognition as a ruler under Article 366 of the Constitution has not altered his status but as a citizen he is undoubtedly assured a privileged position. So, as a citizen his succession has to be determined by the law of the country applicable to him.

63. Lastly, I may refer to Commissioner of Income-Tax v. H. H. Raja of Bhor, 65 ITR (1967) 634. (10) In this case the Raja of Bhor held certain Government securities. He died in 1954 and was survived by three sons and eldest son succeeded to the title of Raja. He claimed exemption in respect of the interest income of the securities under Section 60 of the Income-Tax Act 1922. The Income-Tax Officer rejected the claim holding that the securities were the properties of the Hindu Undivided Family of which the ruler and his brothers are the members. The matter came up before the Supreme Court. It was held that the question whether the Raja of Bhor and his two brothers had proprietary right in the Govt. securities must be answered not with reference to provisions of the Income Tax Act but in the context of a background of Hindu law. It was held that the Raja of Bhor and his two brothers constituted Mitakshara coparcenary and thus, the ownership of the coparcenary property is under the whole body of coparceners.

64. So, it is evident that after Maharaja Jagatjit Singh became an ordinary citizen of this country with certain privileges which had nothing to do with his holding any immovable and moveable properties, he became subject to the laws of this country and the question which remains to be decided is whether on his demise on June 19, 1949, his succession was to be governed by which law.

65. The contention of the learned counsel for the plaintiffs is that as he was a Sikh by religion the Mitakshara Hindu law was applicable and mere fact that eldest soft Maharaja Paramjit Singh was recognised as ruler by the President of India in view of the terms of the covenant does not mean that Maharaja Jagatjit Singh was not subject to Mitakshara Hindu Law at the time of his death. He has contended that Maharaja Paramjit Singh inherited the estate of Maharaja Jagatjit Singh and the said estate became ancestral in his hand. The contention of the learned counsel for defendant No. 1, on the other hand, is that the ruling family of the Kapurthala House was governed by rule of primogeniture and on death of Maharaja Jagatjit Singh the estate was inherited by Maharaja Paramjit Singh on the basis of the rule of primogeniture which has one of its incidents that the estate was impartible.

66. So, it is to be seen whether defendant No. 1 has been able to prove or not that any custom of rule of primogeniture was governing the rulers of Kapurthala state or not and whether the said custom survived after Maharaja Jagatjit Singh became an ordinary citizen of this country. Mere fact that for purposes conferring the paper title of Maharaja the rule of primogeniture has been recognised by the President of India would not affect the succession to the properties of the erstwhile ruler which have to be inherited by his heirs in accordance with ordinary Mitakshara Hindu Law subject to any custom as set up by defendant No. 1.

67. The learned counsel for the plaintiffs has vehemently argued that no proper plea has been raised with regard to any such custom applicable to Maharaja Jagatjit Singh or the ruling family of Kapurthala. Defendant No. 1 has pleaded in the written statement that among the ruling families of Punjab succession in the Kapurthala family has always been according to the rule of primogeniture and the laws governing impartible estates and the properties of the ruler of Kaparthala have always devolved in accordance with the rule of primogeniture as an impartible estate and the holder of same holds such properties absolutely. The learned counsel for the plaintiffs has contended that even the word “customs” does not appear in the pleadings of defendant No. 1 and thus, the court should hold that it is not open to defendant No. 1 to lead evidence and prove that there was any custom which was against the ordinary Mitakshara Hindu Law applicable to the parties. It is not necessary that defendant No. 1 should have used the term “custom” if the whole tenor of the written statement makes out a pleading of a particular custom. The court should not ignore such a plea for some omission of the words “customary laws” in the written statement. In the written statement defendant No. 1 has categorically pleaded the law applicable to the ruling family of Kapurthala under which the inheritance takes place to the properties of the ruler is the law of primogeniture. In my view the same meets with the requirements of law of pleading a customary law applicable to the parties.

68. A contention was also sought to be raised by the learned counsel for plaintiffs that if any custom has been proved by defendant No. 1 it only pertains to the Raj and does not pertain to private properties. There would not be any merit in this contention because as already discussed above, the sovereign rulers were not making any distinction between public and private properties and if it is to be held that a custom existed in the ruling families of Kapurthala state that inheritance is to take place in respect of the properties including the Raj by rule of primogeniture then the said custom would apply to the properties in question.

69. Facts as to how rulership has changed from one hand to another in the Kapurthala State are clear from the Book Ex. PW1/5 to which reference has been made by both the counsel. Counsel for the plaintiffs has vehemently argued that perusal of the said book would show that in fact, there existed no such custom. A custom in order to be followed must be a rule which was accepted by the family, community, voluntarily, consciously and it should have its foundation in antiquity and it should be certain, uniform and continuous and it should not be unreasonable and must have achieved sufficient notoriety and should not be against public policy and morality. A custom also should be invariable.

70. The known history of the family starts from Baba Jassa Singh. Baba Jassa Singh had no son and on his death in 1783, his second cousin Sardar Bhag Singh succeeded. Bhag Singh had only one son, namely, Fateh Singh and on his death in 1801, Fateh Singh succeeded him. In 1836 when Fateh Singh died, he had left behind two sons, namely, Nihal Singh and Amar Singh. So, this rule of primogeniture has not taken shape as a customary law in this family upto the year 1836 when Fateh Singh had died. It appears that Nihal Singh had succeeded to the Gaddi of Fateh Singh and he was acknowledged as a chief by the British power and the Sikh power holding the sway in Amritsar and Lahore. Amar Singh was not reconciled to his brother being declared as chief and certain tragic events took place between the two brothers which have been recorded in the said bock at pages 538 & 539. Sardar Nihal Singh could keep himself in Gaddi by having support of the power existing in Lahore. Before the feud between Nihal Singh and Amar Singh could be settled one way or the other the fate intervened and Amar Singh expried. So, it is evident that when for the first time the custom of rule of primogeniture was to be put into practice the same was challenged by Amar Singh and it is evident that there was no agreement or acceptance of such a rule of primogeniture by the family at that time. There was no voluntary or conscious acceptance of such a custom. At that time there was no previous usage of such a custom.

71. Nihal Singh died in 1852 leaving behind a Will by which he tried to divide his properties in three portions although he described his eldest son as his heir apparent. By that time the paramount British Power had full control over the matters of succession of this Kapurthala State. His three sons Randhir, Bikram and Suchiter Singh had differences which have been recorded in the aforesaid book Ex. PW1/5 and the paramount power had to intervene and in 1860 the said Will of Nihal Singh was annulled by way of reward to Raja Randhir Singh. Randhir Singh was insisting that no partition of the. State of Kapurthala should be carried out in accordance with the Will. The Govt. of India took a decision in February 1868 by which they tried to approve and sanction the said Will. Randhir Singh had taken the matter to the Secretary of State for India who modified the previous decision and ultimately as a reward for the services rendered by Maharaja Randhir Singh to the British Power the Will of his father was annulled and he was allowed to remain in full possession of sovereignty of the entire State. So, it is not any voluntary act of the heirs of Nihal Singh that any rule of primogeniture was accepted. It was the overpowering Will of the paramount power that prevailed. So, it cannot be said that any customary law came to be established in the ruling family of the Kapurthala House at that time.

72. Maharaja Randhir Singh died in 1870 and his eldest son Kharak Singh was recognised as ruler by the British Government. It appears that Harnam Singh, the other son had leanings towards Christianity from his childhood and became a Christian and perhaps had not disputed the decision of the Paramount Power and in all probability he could not be in a position to challenge any such decision of the Paramount Power. Kharak Singh died in 1877 leaving behind only one son, namely, Jagatjit Singh. So, it is not understood how it could be argued with any sense of rationality that any customary law governed the family with regard to succession of the properties by any rule of primogeniture. Mere fact that the Paramount Power being the supreme power was recognising only the eldest son as the successor does not mean that any customary law came into existence governing the parties. At any rate, it cannot be said that any custom had originated in antiquity and was voluntarily and consciously accepted by the persons concerned at the relevant time so as to achieve the status of law governing the parties.

73. Maharaja Jagatjit Singh died on June 19, 1949, leaving behind three surviving sons the eldest being Maharaja Paramjit Singh and at that time Maharaja Jagatjit Singh was an ordinary citizen of this country. The Govt. of India being the paramount power recognized Maharaja Paramjit Singh as the ruler. As already discussed above, the Govt. of India has no power under the covenant to decide about the successors to the properties of the ex-rulers. The succession to the property of the ex-ruler has to be determined in accordance with the Mitakshara Hindu Law or any customary law. On the death of Maharaja Jagatjit Singh it cannot be said that the customary rule of primogeniture came into existence. At least it cannot be said that such a custom has originated in any antiquity. Maharaja Jagatjit Singh is alleged to have made a Will by which he bequeathed all his properties in favour of his eldest son Paramjit Singh although in the Will he made reference to rule of primogeniture.

74. Assuming for the sake of arguments that any Will was made by Maharaja Jagatjit Singh even then the same could not give rise to any custom of rule of primogeniture in the family. At the most it could be said that he being the owner of the property had bequeathed the same to one of his sons who was the eldest son.

75. Maharaja Paramjit Singh died on July 19, 1955 leaving behind only one son, namely, defendant No. 1. He is also stated to have left behind a Will. The validity of the same is also challenged by the plaintiffs.

76. The learned counsel for defendant No. 1 in his written arguments has made reference to Indian history in support of his contention that in most of the ruling families in northern India the rule of primogeniture was being followed. He also made reference to certain classical books Shukracharya's “Shukra Niti” dealing with the functions of the King, the State and the Rulers; Political theory of northern India, a State of Kingship by John W. Spellman. Waka Taka Gupta Age by Ramesh Chandra Majumdar, History of Indian Public Life by U. N. Ghoshal, “Wonder that was India” by A. L. Basitam and Classical Law of India by Robert Lingat. It is to be emphasized at this stage that in the written statement no plea has been set up regarding the existence of rule of primogeniture amongst the various rulers of northern India and thus, the same is applicable to ruling family of kapurthala State. I find that when the evidence was being led an objection was raised by the learned counsel for the plaintiffs to the defendant No. 1 leading evidence regarding existence of such rule of primogeniture amongst other States. The court had upheld the objection and had not allowed any such evidence to be led. So, no support can be obtained by defendant No. 1 from the existence of rule of primogeniture governing other ruling families of different States in northern India.

77. The learned counsel for defendant No. 1 has also made reference to administrative reports of the period 1858 — 1910 which indicate the rule of primogeniture being applied to different native States. I am afraid that defendant No. 1 cannot be allowed to travel beyond the pleadings and more particularly when an order has been already made while recording evidence that no such evidence can be taken note of regarding the existence of rule of primogeniture in other Hindu States in India. The learned counsel for defendant No. 1 has also referred to a number of judgments of the Supreme Court dealing with question of rule of primogeniture of different States. It is not necessary to refer to those judgments as defendant No. 1 is not legally entitled to take help from incidences of existence of rule of primogeniture in any other States to prove the custom applicable to his family.

78. The learned counsel for defendant No. 1 has also pointed out to admission made by plaintiff No. 3, the wife of defendant No. 1 in suit No. 35/77 wherein she in the written statement admitted that properties devolved upon defendant No. 1 by virtue of the rule of primogeniture. This admission has been later on withdrawn by amendment of the written statement but it is true that the same does not vanish from the record of the case. (See Raja Chattar Singh v. Diwan Roshan Singh, AIR 1946 Nagpur 277) (11) but it is also settled law that an erroneous admission of fact can always be withdrawn by a party. As discussed above the facts of the case as to how the succession opened from time to time to the State of Kapurthala are not in dispute and have been detailed out shove. So, the question is whether from those facts can it be said that defendant No. 1 has been able to prove the existence of customary law applicable to the family by which the succession is governed by rule of primogeniture. Mere admission of plaintiff No. 3 alone would not lead to any decision on merits that in fact, any such custom has been proved. Oral statements of Dewan Payare Lal, Advocate (DW2), Des Raj Kapur, Advocate and also of defendant No. 1 as DW3 cannot carry the matter any further in view of the clear facts appearing in the case. Only bare bald statement would not lead to any decision that in fact, any such custom has been proved by defendant No. 1. Reference was also made to the statement of Maj. Kirpal Singh recorded in Succession Certificate proceedings in Court at Kapurthala, copy of which is Ex. D17 and his further statements made in supplementary succession certificate proceedings in respect of the estate of Maharaja Jagatjit Singly copies of which are Exs. D13 & D15 wherein he mentioned that the law of primogeniture applies to the ruling families of Kapurthala. These oral statements which do not give the facts as to how the said custom originated and whether it was being followed throughout voluntarily and willingly are of no consequence in proving the existence of such a custom.

79. The learned counsel for defendant No. 1 made reference to Raja Chattar Singh v. Diwan Roshan Singh, AIR 1946 Nagpur 277, wherein it was held that the practice of granting allowance for maintenance to junior members of the family indicates the impartible nature of the estate and the existence of a custom of succession by rule of primogeniture and similar observations have been made by the Supreme Court in Raj Kumar Narsing Pratap Singh Deo v. The State of Orissa and Another, AIR 1964 SC 1793 (12). It is to be emphasized at this stage that one could appreciate the existence of custom if this custom has its foundation in antiquity and there was evidence to show that such a custom was being voluntarily and consciously accepted by the family members at the relevant times and allowances were being accepted by the other heirs voluntarily and willingly.

80. No such evidence has come forward on the record except that only Maharaja Jagatjit Singh's two younger sons had been given allowances, but that has happened only in recent times. Reference was also made to Ex. D63, a copy of letter dated September 19, 1837, written by Maharaja Ranjit Singh of Lahore to Nihal Singh requiring him to give a maintenance Jagir of Rs. 30,000 to his brother Amar Singh and also a letter dated March 24, 1840, copy Ex. D64, written by Maharaja Sher Singh of Punjab to Sardar Nihal Singh on the same subject and also Ex. D61, copy of agreement dated July 4, 1837, of grant of maintenance Jagir to Amar Singh and lastly, Ex. D62, another copy of the deed executed by Amar Singh accepting the maintenance. As already discussed above, there were serious disputes raised between the two brothers and even attempt was made by Amar Singh to murder his brother Nihal Singh and it was due to intervention of superior power in Lahore that Amar Singh was persuaded to accept the Jagir. From this fact alone it cannot be said that any custom of rule of primogeniture had taken its birth in the said family.

81. It appears that certain agriculture lands in Oudh ware granted to the ruler of Kapurthala State for the services rendered m the War to the British Government and those are governed by Oudh Slate Act 1869 which recognises the rule of primogeniture in respect of the said estate but that would not lead to any inference that the rule of primogeniture is applicable to the family in respect of other properties as well. It is true that in administrative reports Ex. D22 and X27 the words “Heir Apparent” have been used which may be indicative of the rule of primogeniture in respect of the various rulers including the ruler of Kapurthala State but that only shows that paramount power was enforcing the rule of primogeniture. The same would not mean that the said rule is based on any custom applicable to the ruling family.

82. Maharaja Jagatjit Singh in a gift dated September 7, 1925, Ex. D25 has described his eldest son as his “Heir Apparent”. It may be that Maharaja Jagatjit Singh, who was sovereign ruler subject to the Will of the paramount power, expressed his wish to have his eldest son being recognised as his “Heir Apparent” but can it be said that the said wish of the ruler was based on any customary law ? The answer must be negative in view of the fact that no such custom appears to have been proved to exist prior to this desire of Maharaja Jagatjit Singh.

83. At this stage it is necessary to refer to Thakoro Shri Vinayasinhji (dead) by L. Rs. v. Kumar Shri Natwarsinhji & others, AIR 1988 SC 247 (13). In this case Thakur Sartan Sugen who was the ruler of former Mohanpur State before it was merged with the State of Bombay had gifted certain properties to his youngest son and had bequeathed some properties by a Will in favour of respondent No. 1 and his mother. He died in 1955 and on his death his son became ruler who was the appellant before the Supreme Court. Appellant had challenged the Will as well as the Gift Deed on the ground that the rule of primogeniture applied and he being the eldest son succeeded to the Gaddi and his father, the former ruler, had no power of alienation by gift or by way of a Will. The Supreme Court while discussing the nature of the impartible estate made the following observations: —

“At this stage, it will be profitable for us to refer to the illuminating judgment of Sir Dinshah Mulla in the case of Shiba Prasad Singh v. Rani Prayag Kumar Debi, AIR 1932 PC 216 (14). Sir Dinshah Mulla while delivering the judgment of the Judicial Committee of die Privy Council observed as follows: —

“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 incompartible with the custom of impartibility as laid down in Satraj Kuari's case (1888) 15 Ind App 51 and Rama Krishna v. Venkata Kumara, (1899) 26 Ind App 83 (PC), and so also the third as held in Gangadhara v. Rajah of Pittapur, (1918) 45 Ind App 148: (AIR 1918 PC 81). 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 consistent with the custom of impartibility. This right therefore still remains, and this is what was held in Baijnath's case, (1921) 48 Ind App 195: (AIR 1921 PC 62). 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 birth right of the senior member to take by survivorship still remains. Nor is this right a mere spes succession is similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's estate. It is a right which is capable of being renounced and surrendered. Such being their Lordship's view, it follows that in order to establish that a family governed by the Mitakshara in which there is an ancestral importable estate has ceased to be joint, it is necessary to prove an intention, express or implied on the part of the junior members of the family to renounce their right of succession to the estate. It is not sufficient to show a separation merely in food and worship.”

84. The Supreme Court has held that in case of impartible estate the holder has a right to make a Will. The question whether the estate of the absolute sovereign ruler is impartible estate or not, did not as such arise or consideration before the Supreme Court in this case.

85. The Gujarat High Court in the case of Meramwala has expressed the view that no rights accrued by birth in an impartible estate of the ruler. The observations of the Supreme Court, as quoted above, do show that certain rights of survivorship do exist in the family members which are not inconsistent with the custom of impartibility. The Supreme Court has definitely made it clear that the concept of the impartibility is a creation of custom including the right of alienation of the holder of such an estate and 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. The Supreme Court held that the ruler could alienate the impartible estate by gift or even by a Will and only limitation of this power could flow from a custom.

86. The position of the Rulers of Indian States prior to independence has been examined by the Apex Court in a number of cases, particularly in Ameer-un-Nissa Begum v. Mahboob Begum, A.I.R 1955 Supreme Court 352, (15) Director of Endowments v. Akram Ali, A.I.R 1956 Supreme Court 60, (16) Madhaorao Phalke v. State of Madhya Pradesh. A.I.R 1961 Supreme Court 298, (17) Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan. A.I.R 1963 Supreme Court 1638, (18) Pt. Jayvant Rao v. Pt. Chandrakant Rao, A.I.R 1971 Supreme Court 910 (19) and Vishnu Pratap Singh v. State of Madhya Pradesh, JT 1990 (1) Supreme Court 20. (20) In all these judgments, it has been laid down that the Rulers of the Indian States were enjoying uncontrolled sovereign powers in their internal matters and their orders were expressions of sovereign will and they were binding in the same way as any other law and they would over-ride all other laws and in them were vested all the legislative, judicial and executive powers of the State.

87. An impartible estate is essentially a creature of custom although it could also owe its origin to the term of grant, a statute or a family settlement. The Privy Council, in case of Shiv Prasad Singh v. Rani Prayag Kumari Debi & Others, A.I.R 1932 Privy Council 216, was not dealing with the case of estate of a sovereign ruler but was dealing with the case of impartible estates brought about by other modes and had opined that the members of the joint hindu family ordinarily have four rights in joint family, namely, right of partition, the right to restrain alienations except for legal necessity, the right of maintenance and the right of survivorship and in case of impartible estate, the first right was not available even though the impartible estate is ancestral in nature and the second right is also incompatible with the custom of impartibility. But such an estate still retains its character of joint family property and its devolution is governed by the general Mitakshara Law applicable to such property. In Thakore Shri Vinaysinhji's case, A.I.R 1988 Supreme Court 247, the reliance is placed of such enunciations of law made in case of Shiba Prasad Singh's case (supra) but this enunciations of law pertains to impartible estates such like zamindari estates. These cases do not deal with the case of the property owned by a sovereign ruler. The treaties of Hindu Law i.e by Mulla and by Mayne described the impartible estates which are not sovereign estates.

88. It is to be emphasised that impartible estate though has been shown to be joint family property, but none of the cases have described the same as coparcenary property (Sri Rajah Velugoti Kumara Krishna Vachendra Varu v. Sri Rajah Velugoti Sarvagna Kumari Krishna Yachandra Varu, A.I.R 1970 Supreme Court 1795 (21), State Of Uttar Pradesh v. Rajkumar Rukmini Raman Brahma† , A.I.R 1971 Supreme Court 1687 (22). The Supreme Court in the case of Thakore Shri Vinaysinhji v. Kumar Shri Natwarsinhji, A.I.R 1988 Supreme Court 247, has held that 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 customs of impartiality. In none of these cases, the Supreme Court has held that the estate held by a sovereign ruler could be deemed to be joint Hindu family property or coparcenary property.

89. In Pittapur case, A.I.R 1918 Privy Council 81 and in Raj Kumar Babu Bishan Prakash v. Manarnni Janki Koer & Orhers, A.I.R 1920 Privy Council 34 (23), it has been laid down that the impartible Zamindari is a creature of custom and it is of its essence that the coparcenary in it does not exist. The Privy Council in case of Shiba Prasad (supra) also does not say that such an impartible estate is held in coparcenary. In Anant Bhikkappa v. Shanker Ramachandra, A.I.R 1943 Privy Council 196, (24) it was observed that an impartible estate is not held in coparcenary, though it may be joint family property. In V. T. S. T. Thevar v. V. T. S. S. P. Thevar, A. I. R. 1965 Supreme Court 173 (25), the Supreme Court has held that the holder's son could not interdict the said alienation or bequest as he had no right by birth therein. The son had only a right to take the ancestral estate by survivorship in case the father died intestate. In Sri Rajah Velugoti's case, A. I. R. 1970 Supreme Court 1795, the Supreme Court again laid down that the junior members of the joint family in the case of an ancient impartible joint family estate take no right in the property by birth.

90. In support of the contention that the said rulers were not sovereign, some support was being sought from the observations made in C. I. T. v. H E H Mir Osman Ali Bahadur, A. I. R. 1966 Supreme Court 1260 but if we pursue that judgment, we find that in that case Supreme Court was not dealing with the question of exercise of sovereignty by a ruler inside the boundaries of Hyderabad State. The question that arose before the Supreme Court was whether the Nizam for the period 1948 to 1950 could be termed as an International personality so as to be able to claim immunity from the charges of the Indian Income-Tax Law. The Supreme Court held that any income derived by the ruler is chargeable to tax for the year commencing January 26, 1950 when the Nizam was subject to taxation laws. It is to be emphasised that in case of Pt. Jayvant Rao v. Chandrakant Rao, A.I.R 1971 Supreme Court 910, the Supreme Court has expressed its view that the Maharao of Kota was an independent and sovereign ruler. It is to be also emphasised that the Supreme Court in case of Tilkayat Shri Govindlalji v. State of Rajasthan, A.I.R 1963 Supreme Court 1638 and in State of Gujarat v. Vora Fiddali Badruddin Mithibarwala, A.I.R 1964 Supreme Court 1043 (26) and in Privy Purses case, A.I.R 1971 Supreme Court 530 (27), has repeatedly held that ruler of an Indian State was an absolute sovereign prior to the state being merged with the Indian Union.

91. So, it is evident that the properties held by rulers who were sovereign could not by any stretch of reasoning be termed as joint Hindu properties or co-parcenary properties. The sons of the rulers did not acquire any right in such properly by birth. The ruler was law unto himself and could deal with the properties in any manner he liked and no one could question his will. There were no law courts to enforce the rights of any other persons, viz. a viz. the ruler. The ruler being sovereign could treat any property as his personal property or any property as property belonging to the State, rather such rulers did not make any distinction between state and private properties.

92. As far as succession of the ruler is concerned, Indian history repletes with the instances that normally the eldest son of the ruler used to succeed him but there are also instances where even the younger son was preferred as ruler or even the brother was preferred as ruler. The concept of Kingship in Indian history as taken from the Vedas and Dharma Sutras shows usually the rule of primogeniture was followed in vedic age with certain exceptional deviations and in Artha Shastra, Kautilya also philosophised that succession to the rulership should be to the elder son. As a matter of fact, it was not on account of any customory law or any enforceable legal principle that successions to the rulers were being made. It was ingrained in the ancient Hindu mind that elder son of the ruler would become the successor. However, in the present case, what has been set up in the written statement is the custom prevalent in the ruling families of Punjab, particularly the ruling family of Kapurthala. So, no support can be obtained from the practice being followed from ancient times in different Hindu states where succession has been mostly by rule of primogeniture. It is a question of fact in the present case to be established whether the succession in the ruling family of Kapurthala was based on custom by which the rule of primogeniture was being followed.

93. So, in order to succeed that defendant No. 1 is holding the properties in question on the basis of rule of primogeniture with its incidence of impartiality it has to be established by cogent convincing evidence that by custom in the ruling family of Kapurthala State the rule of primogeniture has been followed. In my view, defendant No. 1 has failed to establish the existence of any such custom prevailing in the ruling family of Kapurthala. The Supreme Court in the case of Saraswathi Ammal v. Jagadambal and another, AIR 1953 SCR 939, has held as follows while expounding the law with regard to the ingredients to be proved for establishing a custom in the family: —

“The learned counsel attempted to persuade us to hold the custom pleaded proved by the assistance off decisions given in analogous cases and by applying the principles of the rules said to have been enunciated in some of them. Those cases were decided on their own facts and in some of them a rule was enunciated that degraded people are a class by themselves and their degraded relations are preferential heirs to the undergraded ones. As already said, we cannot subscribe to the view that any such rule can be evolved merely on logical grounds. Its existence can only be justified on the basis of established custom. No trustworthy evidence has been led in this case to establish that the daughters of a Dasi by marriage lose their right of inheritance and form a separate community. The correct approach to a case where a party seeks to prove custom is the one pointed out by their Lordships of the Privy Council in Abdul Hussain Khan v. Soma Dero, ILR 45 Cal. 450 (PC). It was there said that it is incumbent on a party setting up a custom to allege and prove the custom on which he relies, and it is not any theory of custom or deductions from other customs which can be made a rule of decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case. It is well settled that custom cannot be extended by analogy. It must be established inductively, not deductively and it cannot be established by a priori methods. Theory and custom are anti-theses. Custom cannot be a matter of some theory, but always be a matter of fact and one custom cannot be deduced from another. A community living in a particular district may have evolved a particular custom, but from that it does not follow that the community living in another district is necessarily following same custom.”

94. The rule of primogeniture which was being enforced on the rulers of erstwhile Kapurthala State, firstly by the paramount British power and thereafter by the Indian Government would be deemed to have lapsed as soon as the erstwhile ruler became an ordinary citizen of this country subject to ordinary laws of this country. It is only if any custom has been established that defendant No. 1 could still consider himself to be governed by rule of primogeniture till the same came to be abolished by enforcement of Hindu Succession Act 1956. The Privy Council also in Martand Rao v. Malhar Rao, AIR 1928 PC 10 (29) at page 15 in column No. 2 observed that with regard to Kirnapur, it would appear that succession in many instances upto 1846 depended entirely on the Will of sovereign power. So, was the case as far as rulers of Kapurthala State are concerned. So, it cannot be said that succession was taking place amongst the rulers of Kapurthala State on the basis of any customary law pertaining to rule of primogeniture.

95. The learned counsel for defendant No. 1 has vehemently argued that plaintiffs have not been able to explain how the properties held by a sovereign ruler could be termed co-parcenary properties and have not been able to point out a single case of partition in the ruling family of Kapurthala or any evidence showing that any member of the family had ever claimed partition but the learned counsel forgets that once the State is ruled by a sovereign ruler by a sword there could arise no occasion for other members of the family to claim any interest in the estate where a paramount power chooses to exercise its hold over a particular estate by recognising only the eldest member as the sovereign ruler of that State there could arise no occasion for any other members of the family to agitate any matter as no legal remedy could be available to such members against the sovereign ruler. It is not the question as to whether any copercenary existed or not at the time the Kapurthala State was being held by a sovereign ruler. The question which arises for consideration is as to with what law the defendant No. 1 is governed vis-a-vis the properties held by him at the time the suit was instituted.

96. The learned counsel for defendant No. 1 has also contended that plaintiffs have failed to explain as to how maintenance allowances were being given to other members of the family and only eldest son was being allowed to succeed to all the properties of the ruler to the exclusion of his brothers. Again, this question would not be of any relevance because prior to the State being merged there was no law courts available for the members of the family to agitate their rights.

As already discussed above, a sovereign ruler is absolute ruler and thus, no member could afford to challenge the authority of such absolute ruler. It is evident that Mitakshara law was applicable to the ancestors of the ruling family of Kapurthala State because they were Sikhs and when the Kapurthala State was not an independent state and their ancestors were only ordinary persons they would be obviously deemed to be governed by Mitakshara law. The learned counsel for defendant No. 1 has not in his elaborate written arguments and in his oral arguments answered this question as to by which personal law the ancestors of the rulers of Kapurthala State were governed when they were not sovereign rulers. It is true that once the sovereign ruler seized the power over some territory and his word became law obviously the ordinary Mitakshara law could not be invoked by the members of the family of such a sovereign ruler because there was no court of law available to which resort could be had against the ruler by other members of the family for asserting their rights under the Mitakshara law. So, mere fact that due to political expediency the rulers became sovereigns in their territories and were not governed by law does not mean that same state of affairs would continue the moment the rulers became ordinary persons. The crux of the matter in the present case is whether the defendant No. 1 has been able to establish or not the existence of any customary law by virtue of which the succession has to be based on rule of primogeniture even though a particular ruler has ceased to be so after his State has merged.

98. Maharaja Jagatjit Singh, who died on June 19, 1949, was an ordinary person at that time subject to certain personal privileges available to him by virtue of the terms of the covenant signed by him with the Government of India. If a customary law pertaining to any rule of primogeniture was not applicable to him, obviously his son Paramjit Singh inherited the properties under the Mitakshara Hindu law and the properties held by Maharaja Jagatjit Singh which came into the hands of Maharaja Paramjit Singh were to be treated as ancestral properties and defendant No. 1 who inherited those properties from his father was having the ancestral properties and as soon as he married those properties became Joint Hindu Family properties and as soon as male son was conceived and was born the said properties became corparcenary properties.

It appears that two brothers of Paramjit Singh had not raised any disputes regarding the inheritance but that would not change the nature of the properties inherited by Paramjit Singh and later on by defendant No. 1. Perhaps the said brothers of Paramjit Singh were satisfied with the handsome amount received by them from Maharaja Paramjit Singh and did not care to assert their rights. It has come out in evidence that Karamjit Singh, brother of Maharaja Paramjit Singh, was given Rs. 2,25,000 and was also given a property named “Sunny Side” and also right to user of St. Hellage Cottage in Mussoorie for his life time. The two Maharanis were also given certain properties for living for their life time and widow of other son was also given some properties and some money. Mere fact that the other two sons had not got the equal share in the properties of their father is no ground to hold that Maharaja Jagatjit Singh was not governed by Mitakshara Hindu law at the time he died or that his son Paramjit Singh inherited the estate of Maharaja Jagatjit Singh on the basis of any customary rule of primogeniture. It appears that Maharaja Paramjit Singh on the death of his father had obtained succession certificate Ex. D9 which was got modified by succession certificate Ex. D12 in which all heirs of Maharaja Jagatjit Singh were parties, but again the same would not lead to any inference that succession certificate was granted in recognition of any custom of rule of primogeniture.

Hence, I hold that defendant No. 1 has failed to prove the existence of any custom applicable to his family governing the inheritance on the basis of rule of primogeniture.

I have already come to the conclusion that Maharaja Jagatjit Singh was sovereign ruler prior to his losing his sovereignty by merger of his state and thus, he was the supreme legislature, the supreme judiciary and the supreme head of the executive. It is obvious that he was not subject to any law and his word was the law. If that is so, it is not understood as to how he could be termed to have been subject to rule of primogeniture and impartible estate when he was not subject to Mitakshara Law as long as he was a sovereign ruler.

The contention of the learned counsel for defendant No. 1 is that being a sovereign ruler, he could deal with the immoveable properties in the manner he liked and same was binding on all and he had referred to declaration dated August 11, 1948, Ex. D-1, which is to the following effect: —

“In full possession of my senses I do hereby declare and verify that the Mussoorie Estate comprising of

1. Chateau

2. St. Helens

3. St. Helens Cottage

4. Wycliffe

5. A. D. C. Quarters

with all dependencies and annexes is my private and personal property. I have full powers of disposition and transfer over it. I have enjoyed it since its purchase as such. This property would descend to my heirs and successors as their private and personal property. The Chateau was built under my orders and opened in October 1899.”

The effect of this declaration/order made by the sovereign ruler would be that he made it clear that the suit properties would not be inherited under any rule of primogeniture and would be inherited by all his heirs and successors as their private and personal properties. Even if any rule of primogeniture with its instance of impartible estate was applicable, the same, by virtue of this declaration, stood abrogated because being a sovereign ruler and subject to no law, the expression of the Will of Maharaja was the law applicable to his properties and his subjects. If he was a sovereign ruler and could lay down any law, then obvious inference is that by making this declaration as sovereign ruler, he abrogated all other laws applicable to his inheritance, if any, including the rule of primogeniture if it is to be assumed that such a custom of inheritance of rule of primogeniture was being followed in the ruling family of Kapurthala state.

Assuming for the sake of arguments that Maharaja Jagatjit Singh had executed a valid will as an ordinary citizen, even, then he could not have introduced any rule of primogeniture by making a mention of the same in his will. So, the question of application of any rule of primogeniture governing the inheritance to Maharaja Jagatjit Singh and thereafter to Maharaja Paramjit Singh is excluded from consideration completely.

The next question to be considered is that in case it is to be held that Maharaja Jagatjit Singh had executed a valid Will, what is the effect of the said Will ?

It is not disputed that for a document to be operative as a Will, it must be shown that a legal declaration had been made by a person competent to do it in accordance with the Section 13 of the Indian Succession Act and said declaration must be with respect to the property of the testator and the declaration should be revocable during the life time and should be operative after the death of the testator. The Will has to be construed like any other document. The wording of the Will would show the intention of the testator as to whether he has the intention to treat the said writing as a Will. The Will makes a declaration that Tikka Raja Paramjit Singh being his elder son will succeed to all his personal estate. Then it is mentioned in the Will that the estates have always devolved on the elder son according to the rule of primogeniture which can be treated as a declaration made by Maharaja Paramjit Singh regarding the state of affairs existing in the family. The Will also goes on to mention that Tikka Raja Paramjit Singh will be succeeded by his elder son. Thereafter the Will proceeds that in order to remove all doubts he bequeathes the properties to Tikka Raja Paramjit Singh after him to his elder son Maharaj Kumar Sukhjit Singh.

107. If we pursue the whole of the Will, it is evident that Maharaja Jagatjit Singh wanted his elder son Maharaja Paramjit Singh to inherit his properties. He was of the considered view that rule of primogeniture was applicable to the family and Maharaja Paramjit Singh being elder son is to succeed as a heir to all his properties and in order to ensure that the same should happen, he made a bequest in favour of his elder son, Maharaja Paramjit Singh.

108. The question which arises for consideration is whether Maharaja Paramjit Singh had inherited the properties by way of succession or by way of the bequest. It is evident that if a finding is to be given that he had inherited the property from Maharaja Paramjit Singh as his heir, then the properties inherited by Maharaja Paramjit Singh would be ancestral in nature in his hands.

109. The intention of Maharaja Jagatjit Singh is quite clear that he has executed a Will to make it clear that Paramjit Singh, who was his sole legal heir according to his understanding of the legal position, should inherit his property by way of this Will even if there was any doubt regarding rule of primogeniture being applicable to the family or not. So, it cannot be said that Maharaja Jagatjit Singh wanted Paramjit Singh to succeed to the properties even if Paramjit Singh was not his legal heir. So, in my view, by virtue of this Will, Paramjit Singh inherited the properties in question as a heir of Maharaja Jagatjit Singh. Hence, properties so inherited by him were ancestral in nature in his hands and on that score also, Maharaja Paramjit Singh could not have executed a Will dated July 10, 1955 to change the nature of the properties in any manner. Be that as it may, the contents of the Will executed by Maharaja Paramjit Singh also indicate clearly that he wanted the property to be inherited by his only son, Maharaja Sukhjit Singh, who is his sole legal heir and successor. So, the nature of properties in the hands of defendant No. 1 continue to be ancestral Joint Hindu Family coparcenary properties.

110. A contention has been raised that during the life of defendant No. 1, his sons have no right to seek partition of the co-parcenary properties. Reliance is placed for this legal proposition on Hari Kishan v. Chandu Lal, A.I.R 1918 Lahore 291, (30) a Full Bench judgement of the said Court. However, as far as this Court is concerned, the legal position was clarified in Nanak Chand v. Chander Kishore & Ors., A. I. R. 1982 Del 520 (31) and also in RFA No. 1-D of 1959 and RFA No. 24-D of 1959. Khushwant Rai v. Dr. Jagmohan Lal decided on October 26, 1967 that the law laid down by the Full Bench of Lahore High Court (32) is not applicable and it was held in the case of Nanak Chand as follows: —

“The other contention that came up for consideration was whether in the life time of the father, the sons could ask for partition or not. At one time a view was prevalent that in Delhi like Punjab they could not do so. It was based upon some custom, vide Hari Kishan v. Chandu Lal, AIR 1918 Lahore 291 (F.B) and Sri Ram v. Collector, AIR 1942 Lahore 173. But since the decision of this Court of 26-10-1967 in Khushwant Rai v. Dr. Jagmohan Lal, RFA 1-D/59 and 24-D of 1959, it is now no more in controversy that the son can ask for partition from the father during his life time.”

111. The learned counsel for defendant No. 1 has not been able to show as to why the law laid down by this Court in the aforesaid judgments is not binding. So, I hold that there is no merit in the contention raised by defendant No. 1 that during his life time, his sons had no right to seek partition of the co-parcenary properties.

112. One of the points urged before me by the learned counsel for the plaintiffs was that even if it is to be held that defendant No. 1 inherited the properties on the basis of rule of primogeniture with the incident of impartibility, even then on coming into force of Hindu Succession Act, 1956 the rule of primogeniture with its incident of impartibility stood abolished and thus, the properties in the hand of defendant No. 1 assumed the nature of ancestral properties and they became coparcenary properties after plaintiff No. 1 was born. Reliance is placed on Partapsinhji N. Desai, v. C. I. T., 1983 (139) ITR 77 (33), C. I. T. v. Maharaja Chintamani Saran Nath Sahdeo, 1986 (1960) ITR 929 (34) and Rameshwar Singh Deo v. Hemanta Kumar Singh Deo, AIR 1985 Patna 168 (35). Gujarat and Patna High Courts have taken the view that consequent upon the enactment of Hindu Succession Act and by virtue of Section 4 thereof the shadow cast upon the members of the coparcenary to a share in the estate disappeared and the property became coparcenary property.

113. The learned counsel for defendant No. 1, on the other hand, has contended that the views laid down in the said judgements are not sound in as much as the Hindu Succession Act is not retrospective and the question of application of rule of primogeniture or its abolition could come into play only when succession was to open up after coming into force of the Hindu Succession Act. He has argued that there is no provision made in the Hindu Succession Act by which the property in the hands of a person having the character of impartible nature would change its character and become coparcenary properties. Apart from Section 14 of the Hindu Succession Act which comes into play on the day the act came into force which makes the limited estate of a female an absolute estate, there is no other provisions in the Hindu Succession Act which comes into force prior to succession opening up. It is not disputed that Hindu Succession Act is not retrospective (see Eramma v. Verrupana, A. I. R. 1966 Supreme Court 1879) (36). It is no doubt clear that Section 4 of the Hindu Succession Act abolishes the custom of rule of primogeniture. Counsel for defendant No. 1 has made reference to C. I. T. v. U. C. Mehtab, Maharaja of Burdwan, 1981 (130) ITR 223 (37) which takes a different view and has held that mere enforcement of the Hindu Succession Act does not change the character of the property in the hands of the holder even though the custom of primogeniture has been abolished and the same would come into play only when succession opens up after the coming into force of the Act.

114. It is evident that principle of primogeniture according to the customary law comes into play when the succession opens up and the properties inherited on the basis of the custom of primogeniture become impartible estate. The nature and characteristic of the estate continue and same is not effected till any change of law occurs declaring such estate to be not impartible. Mere fact that the custom of primogeniture would not be applicable on the succession opening up after the coming into force of Hindu Succession Act would not change the present nature and character of the property in the hands of the holder who is still alive.

115. The preamble of the Hindu Succession Act says that this is an Act to amend and codify the law relating to intestate succession among the Hindus. The Act has not been enacted for the purpose of changing the character of holding of the properties by all the Hindus apart from Section 14 of the Act which of course affects the change in the nature of the properties in the hands of female. Provision similar to Section 14 has not been incorporated in the Act making the already existing impartible estate change into coparcenary property. Reference was made to Section 6 of the Act by learned counsel for the plaintiffs to show that the Mitakshara coparcenary with its rule of survivorship still holds the field. But Section 6 also comes into operation on the death of a male Hindu having interest in Mitakshara coparcenary. If a view is to be accepted that on mere coming into force of the Act, the character of the property has changed, the same would be going against the provisions of the Act because if that was to be the interpretation, then the property already being held by a person inherited under the old Mitakshara Law where the females have been excluded as heirs, the said properties also should be deemed to be amenable to be inherited by female heirs. But that is not the interpretation because the female heirs could inherit the properties only when the succession opens up after the enforcement of the Hindu Succession Act. So, successions which have taken place prior to the enforcement of the Act and the properties held therein are not sought to be transferred into any joint Hindu family properties or coparcenary properties by virtue of coming into force of the act itself. It is evident that unless the succession was to open up after the coming into force of the Hindu Succession Act, the question of custom contrary to the provisions of Hindu Succession Act being void would not arise in any particular case.

116. Counsel for the plaintiff has argued that Section 4 of the Act is retroactive and so also Section 14. It is true that if any customary law is tried to be enforced which is contrary to the provisions of the Hindu Succession Act, after the coming into force of the Hindu Succession Act, the same would be deemed to be void and to that extent Section 4 of the Act is retroactive. But Section 4 by itself does not lay down that the character of the property inherited prior to the enforcement of the Hindu Succession Act stands changed. The primogeniture is only a custom of succession and can be taken resort only when succession opens up and impartible estate is only its incident. The Gujarat and Patna High Courts in the aforesaid judgements have not taken note of this particular distinction. The Supreme Court judgements in R.B.S.S Munnalal v. S. S. Rajkumar, A.I.R 1962 Supreme Court 1493 (38) and Punithavalii Ammal v. Ramalingam, A.I.R 1970 Supreme Court 1730 (39) which have been relied upon by the said two High Courts were dealing with the provisions of section 14 and not with the provisions of section 4 of the Act.

117. In Sundari v. Laxmi, A.I.R 1980 Supreme Court 198, (40) the Supreme Court observed in paragraph 10 that scheme of the Hindu Succession Act in the matter of succession in the property of a Hindu dying intestate is provided in Sections 8 to 13. Sections 15 and 16 provide for the succession to the property of a female dying intestate and Section 17 specifically provides for application of Hindu Succession Act to persons governed by Malabar and Aliyasanthana law. Section 14 does not relate to succession but provides that any property possessed by a female Hindu whether acquired before or after the enforcement of the Hindu Succession Act shall be held by her as full owner thereof and not as limited owner. The Supreme Court has clearly mentioned that all other sections apart from section 14 in the act relate to succession. So Supreme Court itself had made a distinction between Section 14 and other sections. The Supreme Court was dealing with a case where succession had opened after the coming into force of the Act and that is why the Supreme Court has mentioned in paragraph 9 of the judgement that Section 4 of the Act gives overriding application to the provisions of the Act and lays down that in respect of any of the matters dealt with in the Act by existing laws shall stand repealed if they are inconsistent with the provisions of the Act. So, the Patna High Court was not right in drawing any inference from the observations made in the judgement of the Supreme Court that the Supreme Court has held that Section 4 of the Act is retroactive in operation or it has affected the character of the property being held on the coming into force of the Act itself.

118. The Calcutta High Court in the aforesaid judgement in my opinion has rightly held that apart from Section 14, other provisions of the Act come into play when the succession opens up and Section 4 of the Act does not in any manner change the character of the property in the hands of any person in any manner.

119. In Ramchander Pillai v. Arunachala Thammal, 1970 UJ (SC) 390 (41) while dealing with Section 6, the Supreme Court observed that the Section 6 in terms applies only to those cases where the Hindu dies after the commencement of the Act.

120. The fact remains that Section 4 by itself does not have the effect of changing the character of the properties already being held by the Hindu males. It is only when succession opens up after the coming into force of the Hindu Succession Act that customs of primogeniture would not be applicable in view of Section 4 of the Act. So, I hold that by mere coming into force of the Hindu Succession Act, the nature of the properties in the hands of the defendant No. 1 would not change. However, I have already come to the conclusion that defendant No. 1 has not inherited the properties on the basis of any custom of primogeniture. So, the decision on this point is only academic.

121. Issues No. 1, 2 and 10 are accordingly decided in favour of the plaintiffs.

ISSUE No. 3

Counsel for the defendant has not pressed this issue. Hence, the issue is decided against defendant No. 1.

ISSUE NO. 4

It is now admitted before me by counsel for the parties that in case the properties in question are held to be coparcenary properties then only Plaintiff No. 1 and defendant No. 1 have 1/4th share each and Plaintiff No. 3 shall nave 1/4th share of her own and 1/4th share of Plaintiff No. 2 (deceased) inherited by her presently in the said properties and Plaintiff No. 4 and defendant No. 2 have no rights in the said properties presently. Hence, this issue is decided accordingly.

ISSUE NO. 5

The effect of this declaration dated August 11, 1948, has been discussed while deciding the issues 1, 2 and 10 above. No other finding is called for in this issue. Issue is decided accordingly.

ISSUE NO. 6:

Before the evidence led in the case is discussed in order to determine whether defendant No. 1 has been able to prove the execution of a valid Will by Maharaja Jagatjit Singh, it is necessary to refer to the pleadings of the parties with regard to the question of Will being made by Maharaja Jagatjit Singh. In para 8 of the written statement-cum-counter claim defendant No. 1 has categorically pleaded that Maharaja Jagatjit Singh had vide Will dated January 16, 1949, bequeathed all his properties to Maharaja Paramjit Singh and after him to defendant No. 1.

122. The learned counsel for defendant No. 1 has vehemently argued that in the replication to the written statement the plaintiffs have not categorically controverted the plea of defendant No. 1 with regard to the execution of a Will by Maharaja Jagatjit Singh. He has urged that, sub and substance of averments made in the replication would indicate that the validity of the Will is challenged on the ground that Maharaja Jagatjit Singh could not have in law entitled to bequeath the HUF properties and thus, the Will in invalid on that score. He has argued that at no stage the plaintiffs have in whole of the replication challenged the execution of the Will. I think there is no merit in this contention because at page 6 in para (m-8) the plaintiffs have pleaded that:

“In reply to para (8-m), it is stated that the alleged Will does not make defendant No. 1 sole and absolute owner of the properties in suit nor could defendant No. 1's grandfather bequeath HUF properties by Will. Even if the properties were treated as personal and private properties of the grandfather of defendant No. 1, which fact is wrong and is denied, they became HUF properties in the hands of defendant No. 1's father, even if the alleged Will is treated as valid, which fact also is not admitted, including the validity of its execution.”

123. In corresponding para (m-8) of the written statement of defendant No. 1, the execution of a valid Will by Maharaja Jagatjit Singh has been set up. So, it cannot be said with any stretch of reasoning that plaintiffs have not disputed the factum of execution of a valid Will by Maharaja Jagatjit Singh. If is in context of these pleadings that a specific issue has been framed in this regard.

124. It is the case of defendant No. 1 that the original Will of Maharaja Jagatjit Singh was produced in the proceedings pertaining to obtaining of succession certificate and Mark X8 is the certified copy of the said original Will obtained from the said court. The certified copy is signed by the same Judge who had issued the succession certificate Ex. D9. During the course of evidence the court had allowed the secondary evidence to be taken in the case, subject to defendant No. 1 proving the loss of the original Will.

125. The first witness to be examined to prove the loss of the original Will is DW1 who is a record keeper of Session Court at Kapurthala. The original file of the proceedings pertaining to grant of succession certificate was summoned through the said witness but the witness deposed that the said file had since been destroyed. The learned counsel for the plaintiffs has contended that under the rules applicable with regard to destruction of judicial record the original Will if was available on the said file could not have been destroyed. It may be that the rules did not permit destruction of such a file containing the original Will but if the file has been destroyed containing the original Will factually, defendant No. 1 cannot remedy the situation. He was supposed to only prove the loss of the original Will in order to enable him to rely upon the certified copy of the Will issued by the court as a piece of secondary evidence. This witness has identified the signatures of Mr. Shamsher Singh Attre, Sub-Judge, who issued the succession certificate, on Ex. D9 and also on the certified copy of the Will mark X8. He has also identified the writing of Sham Lal, copyist, who made the endorsement that he had compared the copy with the original. So, this evidence unmistakably shows that the original Will must have been filed in the said proceedings and certified copy was issued by the court in respect of the said Will. There is no reason for DW1 to make any false statement on these facts. His cross-examination has not brought out any suspicious circumstances which could lead the court to come to any different conclusion.

126. DW2 is Dewan Pyare Lal, an advocate practising in Kapurthala courts, who deposed that he appeared as a counsel in the said proceedings on behalf of Karamjit Singh, son of Maharaja Jagatjit Singh and he had seen the original Will filed alongwith the application for grant of succession certificate and he has also remembered the contents of the Will which show that the property has been bequeathed to Paramjit Singh alone, the eldest son and it also contained the reference to rule of primogeniture. In cross-examination he has deposed that he had been instructed not to contest the proceedings but he still continued to appear in the proceedings. However, mere fact that his client had expressed the desire not to contest the proceedings would not mean that he should have stopped appearing in the proceedings. After all being a counsel engaged by one of the parties there was nothing unusual for him to have looked into the file and to remember that original Will was there alongwith the application.

127. Des Raj Kapur is another advocate who appeared as DW3. He was the counsel engaged by Maharaja Paramjit Singh for filing the application for obtaining the succession certificate and he has clearly stated that he had filed the original Will alongwith the petition. He also referred to the contents of the Will. No question was put in cross-examination to this witness to elicit from him as to whether at any stage any application had been moved for return of the original Will. So, it cannot lie in the mouth of the plaintiffs to urge that some evidence should have been led by defendant No. 1 to show that the original Will was not withdrawn from the court after the court proceedings were over when the original Will is proved to have bean field in the judicial file. I do not think it was necessary for defendant No. 1 to have further led evidence to show that the Will was never taken back from the original file. Normally a Will if filled in a court is not allowed to be withdrawn. It is to be remembered that defendant No. 1 was not a party to the said proceedings. So, he could have no personal knowledge about those proceedings. He has deposed that he had not found the original Will in the documents which came into his possession on death of his father Maharaja Paramjit Singh although he tried to show that plaintiff No. 3 had been given keys of the cupboards where most of the files were being kept and that he was away on his military duty.

128. The short question is whether original Will is proved to have been lost or not and for that purpose I think sufficient evidence has been brought on the record by defendant No. 1 to prove that the original Will is no longer available which entitles defendant No. 1 to lead secondary evidence to prove the existence of such a Will of his grandfather. It is to be mentioned that it has been held in M. Ihtisham Ali (since deceased) v. Jamna Prasad (since deceased), AIR 1922 PC 58, (42) that in ordinary cases if the witness in whose custody the deed should be, deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. In Chudasama Khoduba Sartansang & others v. Chudasama Takhatsang Narasinghji & others, AIR 1922 Bombay 177, (43) while dealing with the certified copy of a compromise petition filed in the court, the court expressed that considering the time which has expired, there is no reason whatsoever to doubt that, the certified copy retained on the file of the suit is a correct copy of the original and the courts could always rely on such a certified copy to see the terms of the compromise.

129. In Lala Tulsi Ram v. Ram Saran Das, AIR 1925 PC 80, (44) the court observed that as the original document was placed in the custody of the law, court did not think that the onus of proof required the plaintiff to show how it was afterwards made away with.

130. Counsel for the plaintiffs has, however, contended that defendant No. 1 has not led sufficient evidence to prove the loss of original Will inasmuch as he has not at any time contacted the lawyer who had produced the original Will in the court at Kapurthala in order to find out the whereabouts of the said Will. He has also urged that the lawyers examined in the case do not say as to what happened to the original Will after the succession certificates had been obtained. He has also pointed out that in the succession certificates there is no reference made to the original Will or any Will of Maharaja Jagatjit Singh.

131. The fact that a certified copy of the Will has been obtained from the said court, in my opinion, leads to an inference that the original Will must have been filed in the said court proceedings though the same was not relied upon for issuance of succession certificate in favour of Maharaja Paramjit Singh. So, I hold that defendant No. 1 is entitled to lead secondary evidence.

132. But unfortunately for defendant No. 1 he has not cared to lead any evidence to prove that any such Will had been duly executed by Maharaja Jagatjit Singh. Even the witnesses examined by defendant No. 1 do not say in their depositions in this Court that the original Will which had been seen by them was signed by Maharaja Jagatjit Singh. The signatures of the two witnesses appearing on the original Will have also not been proved. There is no evidence led by defendant No. 1 to show that Maharaja Jagatjit Singh was of sound disposing mind at the time of making of alleged Will. Mere production of certified copy of the Will did not absolve the defendant No. 1 from proving the execution of the Will by Maharaja Jagatjit Singh. A contention could be raised that the original Will was more than 30 years old and thus, the court can presume the execution and attestation of the said Will. There is no merit in this particular plea because such a presumption could be raised only in case original Will is produced in the court. No such presumption can be raised when original Will has not been produced in the court. In Sital Das v. Sant Ram & Others, AIR 1954 SC 606, (45) it has been held by the apex court that the language of Section 90 requires the production of the particular document in regard to which the court is invited to make the statutory presumption and if the document produced is a copy, admissible as secondary evidence under Section 65 and is produced from proper custody and is over 30 years old, then only the signatures authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execution of the original. This ratio of law was reiterated by the Supreme Court in Kalidindi Venkata Subbaraju & Others v. Chintalapati Subbaraju & Others, AIR 1968 SC 947. (46)

133. So, the fact that defendant No. 1 is entitled to lead secondary evidence and the certified copy of the Will produced on the record is admissible in evidence under Section 65 of the Indian Evidence Act would not further lead to any inference that the original Will was duly executed. The presumption under Section 90 of the Evidence Act is not available to defendant No. 1 inasmuch as the original Will unfortunately could not be produced as it had been lost. It was incumbent upon defendant No. 1 to have led some evidence to prove that the original Will was executed by Maharaja Jagatjit Singh. In absence of any evidence being led by defendant No. 1 in this regard, it is not possible to hold that Maharaja Jagatjit Singh had executed the Will of which certified copy is produced in this case.

134. The learned counsel for defendant No. 1 has contended that there has been made an admission by plaintiff No. 3 in her testimony in court that the Will, of Maharaja Jagatjit Singh was probated and this admission had not been withdrawn and a similar admission had been made by her in the written statement filed by her in a suit filed by defendant No. 1 which is also pending in this court. It is true that plaintiff No. 3 has deposed in this court that the Will of Maharaja Jagatjit Singh had been probated. But the question which arises for consideration is whether the said admission is correct on fact or not ? It is now admitted case before me that at no point of time any probate of the Will of Maharaja Jagatjit Singh had been obtained. No such probate has been produced. So, an admission on erroneous fact cannot be considered binding on the plaintiffs particularly when plaintiffs 1 & 2 who have the real interest in the suit have not made any such admission. It is not possible to hold that when a succession certificate has been obtained the admission made by plaintiff No. 3 that the Will has been probated becomes binding on plaintiffs because succession certificate has not been obtained on the basis of the Will. The succession certificates do not refer to any Will. So, on the face of it when the so-called admission of plaintiff No. 3 that the Will has been probated is erroneous on fact on the face of it, I do not think that defendant No. 1 can take any benefit of the same. The admission made by plaintiff No. 3 in the written statement field in a suit brought by defendant No. 1 also is erroneous on fact and has been withdrawn by getting the amendment of the written statement. It is true that under Section 17 of the Evidence Act, mere fact that admission made in the written statement has been allowed to be withdrawn by making amendment of the written statement would not wipe out the admission if the same is shown to be correct on the facts and then the same can be considered binding on plaintiff No. 3 who made the admission. But once the admission is shown to be erroneous on facts, the same cannot be considered binding. It was not necessary for plaintiff No. 3 to have given any explanation for making such erroneous admission.

135. There is also evidence available on the record which would indicate clearly that the purported Will of Maharaja Jagatjit Singh produced in the court at Kapurthala, of which mark X8 is the certified copy, was perhaps not the Will made by Maharaja Jagatjit Singh at all. There is another suit pending in this Court being Suit No. 634/67, Radhey Sham v. Union of India, filed on the ground that the Kapurthala House had been sold by Maharaja Paramjit Singh to the plaintiff and in that suit. An application was moved requiring defendant No. 1 to make discovery of documents including the Will of Maharaja Jagatjit Singh and copy of the application is Ex. DW6.XA. The General Attorney of Defendant No. 1 in the said suit filed the reply in which he mentioned that the Will of Maharaja Paramjit Singh is available but no reference has been made in that reply-affidavit with regard to the Will of Maharaja Jagatjit Singh and the copy of the said affidavit is Ex. DW6.X8.

136. Defendant No. 1 had admittedly written a letter Ex. PW1/19 dated June 19, 1955, to Rani Sushila Devi. The contents of the said letter clearly indicate that Maharaja Jagatjit Singh had perhaps made a Will of which contents were totally different as are there in the copy of the Will mark X8. I may reproduce the contents of the said letter to make the position clear:

“You see, I have been able to lay my hands on a few important documents and have seen and read the contents of others. I also know that HH inherited over 30 lacs in cash and assets not including jewellery. Where has all that gone now ? I have also come to know contents of grandpa's Will. The original and can assure not one item has been followed. The more information I piece together the more I see how dirty HH had played on the whole family about his father's Will and property.”

Defendant No. 1 when confronted with the contents of this letter came out with the unconvincing explanation that he was given some wrong information on this matter by an official of the State. It must be remembered that defendant No. 1 had in his evidence tried to prevaricate on the question of fact as to whether his father had executed any Will in favour of Maharani Stela. He was being cross-examined thoroughly on this point when counsel for defendant No. 1 made a statement that for purpose of the suit it may be assumed that Maharaja Paramjit Singh had made a Will in favour of Marahani Stela.

137. I may also refer to some more letters written by defendant No. 1 which also would show that there have been no such Will of Maharaja Jagatjit Singh by which he bequeathed the properties in favour of Maharaja Paramjit Singh and then in favour of defendant No. 1. Reference may be made to Ex. PW1/18 where he had mentioned that his father had willed away every cent to Maharani Stela. In case there existed a Will of Maharaja Jagatjit Singh of which mark X8 is the copy, it is not understood how could any apprehension occur in Maharaja Paramjit Singh making the Will in favour of Stela which could not have touched the properties inherited by Maharaja Paramjit Singh under the Will from Maharaja Jagatjit Singh. It appears that defendant No. 1 entered into some agreement with Maharani Stela, a copy of which is Ex. X1, the contents of which show that there was no reference to any such Will of Maharaja Jagatjit Singh and it was mentioned in that agreement that properties have devolved on defendant No. 1 as being his sole heir and not that he had succeeded to the properties under the Will of Maharaja Jagatjit Singh.

138. It is also to be mentioned that there was reference to Will of Maharaja Jagatjit Singh in the minutes of meeting held between Maharaja Paramjit Singh and Mr. V. P. Menon, copy of the same Ex. DW6.XE, the contents of which clearly show that under some Will of Maharaja Jagatjit Singh certain provision has been made for giving certain allowances to different family members and for provision of education for the heir apparent. In mark X8, copy of the purported Will of Maharaja Jagatjit Singh, no such provision has been made. If there existed the Will of which mark X8 is the copy the same would have definitely been mentioned in the said minutes if the same had been the last Will of Maharaja Jagatjit Singh.

139. Mere fact that mark X8 is the certified copy of the purported Will of Maharaja Jagatjit Singh does not mean that the onus to prove that Maharaja Jagatjit Singh actually had executed a valid Will stood discharged on the part of defendant No. 1. The execution of the Will has to be proved in terms of Section 63 of the Indian Succession Act. No evidence has been a led to prove that Maharaja Jagatjit Singh who was about 76 years of age at the time of his death in 1949 had the testamentary capacity to execute a Will. No evidence has been led to show that the original Will of which mark X8 is the copy actually had signatures of Maharaja Jagatjit Singh and also the signatures of the two attesting witnesses. In Moon Devi v. Radha Devi, AIR 1972 SC 1417, (47) it has been laid down that it is not merely the genuineness of signatures on which the proof of the execution of the Will under Section 63 of the Indian Succession Act depends, it has to be proved that the Will was attested in accordance with clause (c) of that Section.

140. It may be also highlighted that letters Exs. PW1/18, PW/19, PW1/64 and PW1/65 would indicate that defendant No. 1 was very keen and rather coerced his father to execute a Will in his favour cancelling the previous Will made in favour of Maharani Stela. Such pressure and coercion would not have been necessary if Maharaja Jagatjit Singh had made a Will of which mark X8 is the copy because defendant No. 1 would have inherited all the properties bequeathed to Maharaja Paramjit Singh on the basis of the said Will and in fact, Maharaja Paramjit Singh could not have been entitled to make any Will in respect of those properties at all.

141. It is also admitted case of the parties that Maharaja Paramjit Singh was making allowances to his collaterals which he had stopped and defendant No. 1 in the letter referred to above while referring to the contents of the Will of Maharaja Jagatjit Singh was also accusing his father of acting dirty towards the family and not following the contents of the Will of Maharaja Jagatjit Singh. The document Ex. DW6.XN is a letter written by late Prime Minister Pt. Jawaharlal Nehru to his father objecting to his father cutting down the allowances being given to the other members of the family. So, it is evident that allowances were being paid by Maharaja Paramjit Singh to other family members and it is not shown by defendant No. 1 why such allowances were being paid and what were the conditions and the rules under which the allowances were being paid to which the indication is given in the letter Ex. DW6.XN. The statements of two witnesses Pyare Lal and Des Raj, Advocates, do not prove that the Will which was allegedly filed in the court proceedings at Kapurthala bore the signatures of Maharaja Jagatjit Singh and they also did not say that they were in position to identify the signatures of Maharaja Jagatjit Singh and of the attesting witnesses. The testimony of Des Raj, Advocate, shows that a certificate was issued by the Government of India in favour of Maharaja Paramjit Singh which was filed in the petition for grant of succession certificate with regard to certain assets left by Maharaja Jagatjit Singh and he could not deny whether the succession certificate had been granted on the basis of certificate issued by the Government of India. It is quite evident that the succession certificate was not granted on the basis of the alleged Will of Maharaja Jagatjit Singh. So, examined from every point of view, it is clear that defendant No. 1 has miserably failed to prove that Maharaja Jagatjit Singh had executed a valid last Will of which mark X8 is the copy.

142. In view of the above discussion. I hold that defendant No. 1 has failed to prove that any Will dated January 16, 1949, of which Mark X8 is the certified copy was executed by Maharaja Jagatjit Singh. So, Issue No. 6 is decided against defendant No. 1.

ISSUE NO. 7

In view of the findings given in above issues, it is quite clear that Maharaja Jagatjit Singh had complete power to bequeath the properties by any Will. Issue is decided accordingly.

ISSUE NO. 8

It is the case of defendant No. 1 that Maharaja Paramjit Singh had left behind a valid Will dated July 10, 1955, which is Ex. D11. In this matter defendant No. 1 is relying on a statement made by plaintiff No. 3 admitting that the Will of Maharaja Paramjit Singh was probated. It is admitted case that no probate of this Will has been taken out in India or in France as was the case set up by defendant No. 1 in the written statement. No evidence has been led to show that probate of the Will has been taken in England. It is true that defendant No. 1 applied for obtaining a succession certificate in respect of some of the assets of Maharaja Paramjit Singh and vide order dated February 4, 1956, Sub-Judge, Kapurthala, had granted the succession certificate and a copy of the said order is Ex. D10. It is true that one Maj. Kirpal Singh, one of the attesting witnesses of the said Will, was examined in those proceedings and he proved the execution of the valid Will by Maharaja Paramjit Singh. It is contended by the learned counsel for defendant No. 1 that execution of the Will by Maharaja Paramjit Singh is not disputed in the pleadings and thus, it be held that a valid Will had been executed by Maharaja Paramjit Singh.

143. As far as pleadings are concerned, in paras m (9) and m (10) of the replication the plaintiffs have categorically pleaded that any personal properties of father of defendant No. 1 became HUF properties in the hands of defendant No. 1 even if the alleged Will is otherwise treated as valid which fact is not admitted and in para m (10) the plaintiffs have pleaded in the replication that at the time he made the alleged Will he was not even mentally sound at the time of execution of the alleged Will and he died shortly thereafter. So, there is not admission implied or express made by the plaintiffs with regard to execution of any valid Will by Maharaja Paramjit Singh.

144. As far as factum of obtaining a succession certificate is concerned, it is obvious that the proceedings for grant of succession certificate being not proceedings in probate jurisdiction do not determine any title in rem. The succession certificate only entitles a person to collect the money left by the deceased.

145. In Ram Saran v. Gappu Ram, AIR 1916 Lahore 277, (48) it was laid down that grant of succession certificate does not establish title of the grantee as the heir of the deceased, it only furnishes him with an authority to collect the debts and allows the debtors to make payments to him without incurring any risk. A similar proposition was reiterated by the Lahore High Court in Mt. Charic & another v. Dina Nath & Others, AIR 1937 Lahore 196, (49)

146. At the time the aforesaid certificate was obtained, defendant No. 1 was unmarried. As far as testimony of attesting witness Maj. Kirpal Singh, who has since deceased, recorded in the succession certificate proceedings is concerned, the same is not admissible in evidence inasmuch as the same does not comply with the strict provision of Section 33 of the Indian Evidence Act. So, it cannot be used for proving the aforesaid Will.

147. Defendant No. 1 has not in his elaborate testimony stated as to how and in what manner and at what place the Will came to be executed. It is to be remembered that the Will was allegedly made on July 10, 1955 and Maharaja Paramjit Singh died on July 19, 1955. The contents of the letters written by defendant No. 1 Exts. PW1/18, PW1/19, PW1/64 & PW1/65 show amply that defendant No. 1's father was not in sound disposing mind during his last days and defendant No. 1 was pulling up lot of pressure and coercion on his father for revoking his Will which he had earlier made in favour of his wife Maharani Stela. Defendant No. 1 in cross-examination was not even admitting the fact that his father had made a Will in favour of Maharani Stela almost bequeathing everything to her but on persistent cross-examination his counsel conceded the fact that for the purposes of this case it be assumed that Maharaja Paramjit Singh had made a Will in favour of his wife.

148. It has also come out on the record that defendant No. 1 had to make a settlement with Maharani Stela and had to part with substantial estate. In case there was a valid Will of his father which is the last Will bequeathing everything in favour of defendant No. 1 there could be no occasion for defendant No. 1 to have entered into a settlement with Maharani Stela. The contents of the letters written by defendant No. 1 mentioned above would clearly indicate that defendant No. 1 was accusing his own father of playing dirty with the whole family by trying to leave everything in favour of Maharani Stela and his own efforts to prevail upon his father to revoke the said bequest. There was one schedule of the property attached with the settlement arrived at with Maharani Stela which would have disclosed us how much property had been given to Maharani Stela on the basis of the settlement but that schedule was not produced.

149. The two attesting witnesses of the aforesaid Will Maj. Kirpal Singh and Shanti Sagar had died. Major Kirpal Singh was General Attorney and Secretary of defendant No. 1. No evidence has been led by defendant No. 1 to prove that the aforesaid Will was executed by Maharaja Paramjit Singh in presence of the said two witnesses. Reference was also made by counsel for defendant No. 1 to the testimony of Dewan Pyare Lal (DW2) but his statement does not categorically prove the execution of a valid Will by Maharaja Paramjit Singh because he was not present at the time the alleged Will was executed by Maharaja Paramjit Singh.

150. A half hearted contention was raised that the document being 30 years old a presumption with regard to its due execution arises under Section 90 of the Indian Evidence Act. At the time the suit was filed the document was not 30 years old. So, presumption can be drawn regarding its due execution by reference to the provisions of Section 90 of the Indian Evidence Act. I hold that it is not proved that Maharaja Paramjit Singh had executed a valid Will Ex. D11.

Issue No. 8 is decided against defendant No. 1.

ISSUE NO. 9

Even if it is to be held that Maharaja Paramjit Singh had executed a Will dated July 10, 1955, even then the said Will would have no effect because the properties in his hands were ancestral properties and he had no power to make any Will in respect of the said properties. Issue is, hence, decided in favour of the plaintiffs.

151. In view of the above decisions, it would be evident that Maharaja Paramjit Singh inherited the properties in question as legal heir of Maharaja Jagatjit Singh and thus, the properties in question became ancestral Joint Hindu Family properties in the hand of Maharaja Paramjit Singh and he had no power to make any Will in respect of the said properties and defendant No. 1 inherited the said ancestral properties on the death of Maharaja Paramjit Singh and the said ancestral properties became Joint Hindu Family properties as soon as defendant No. 1 had married plaintiff No. 3 and with the conceiving and birth of the first son, the properties became coparcenary properties ?? with the birth of the second son, there became three coparceners, namely, defendant No. 1 and his two sons in the said properties. With the death of one of the sons during the pendency of the suit, his share had admittedly been inherited by plaintiff No. 3 exclusively.

152. In view of the decision above, I hold that the properties mentioned in the plaint as well as in the written statement are coparcenary Joint Hindu Family properties of plaintiff No. 1, plaintiff No. 3 and defendant No. 1 and plaintiff No. 1 and defendant No. 1 shall have 1/4th share each and plaintiff No. 3 shall have 1/4th share of her own and 1/4th share of plaintiff No. 2 (deceased) inherited by her in the said properties and they are liable to be partitioned as such.

153. I pass a preliminary decree of partition of the said properties and appoint Shri Muni Lal Jain, Advocate, as Local Commissioner to suggest the mode of partition of the said properties. He shall be paid Rs. 20,000 as fee to be shared equally by plaintiff No. 1, plaintiff No. 3 and defendant No. 1. The counter-claim of defendant No. 1 is dismissed.

Preliminary Decree passed.