Rajkumari Amrit Kaur vs Maharani Deepinder Kaur And Others

Rajkumari Amrit Kaur ......Appellant(s) Vs Maharani Deepinder Kaur and others ....Respondent(s)

2. RSA No.1418 of 2018 (O&M)

Maharani Deepinder Kaur and others ......Appellant(s) Vs Rajkumari Amrit Kaur and others ....Respondent(s)

3. RSA No.2176 of 2018 (O&M)

Bharat Inder Singh (since deceased) though his LR Kanwar Amarinder Singh Brar ......Appellant(s) Vs Maharwal Khewaji Trust through its Boards of Trustees and others ....Respondent(s)

CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH

Present: Mr. Manjit Singh Khaira, Sr. Advocate with Mr. Balbir Singh Sewak, Advocate, Mr. Dharminder Singh Randhawa, Advocate Mr. Ripudaman Singh Sidhu, Advocate, and Mr. Gagandeep Singh Mann, Special Attorney Holder for the appellant in RSA No.2006 of 2018 for respondent No.1 in RSA No.1418 of 2018 and for respondent No.6 in RSA No.2176 of 2018.

Mr. Ashok Aggarwal, Sr. Advocate with Mr. Mukul Aggarwal, Advocate Mr. N.S. Wahniwal, Advocate for the appellants in RSA No.1418 of 2018 for respondents No.1, 2, 3(1), 3(2), 3(5) & 3(8) in RSA No.2006 of 2018; for respondents No.1(A), 1(B), 1(E), 1(F), 2 and 3 in

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RSA No.2176 of 2018.

Mr. Vivek Bhandari, Advocate for the appellant in RSA No.2176 of 2018 for respondent No.5(i) in RSA No.2006 of 2018 and for respondent No.3(i) in RSA No.1418 of 2018.

Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate respondent No.4 in RSA No.2176 of 2018.

**** Judgment Index

Sr.No. Title/Sub-Titles Para No.(s) Page No.(s) 1 Common Facts 2 to 22 5-25

2 Issues framed by the Trial Court 23 25-28

3 Proceedings & outcome before 24 to 25 28-32 the Courts below

4 Nomenclature of the appeals in 26 to 28 32-33 the High Court

5 Brief background, originated from 29 to 34 33-36 Covenant dated 05.05.1948 entered into between the Union of India and Ruler of Faridkot State 6 Questions/Points framed by this 35 36-37 Court for consideration in all the three appeals

7 Discussion/Arguments made by 36 to 39 37-120 the parties on 1st Point regarding (inclusive of sub paras applicability of The Raja of based on Faridkot's Estate Act, 1948 individual arguments of learned counsel)

8 Conclusion on 1st Point/Question 40-57 120-136

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Sr.No. Title/Sub-Titles Para No.(s) Page No.(s) 9 Discussion/Arguments made by 58-61 136-159 the parties on 2nd Point regarding applicability of The Law of Primogeniture (a) Discussion and conclusion regarding effect of judgment dated 62-67 159-163 22.07.1996 passed by the UK High Court Justice, Chancery Division relating to Faridkot Family Settlement Trust.

(b) Discussion and conclusion 68-77 164-173 regarding effect of Will dated 27.01.1997 executed by Kanwar Manjit Inder Singh (Brother of Raja). 10 Conclusion on 2nd Point/Question 78-101 173-196

11 Discussion/Arguments made by 102 to 105 196-376 the parties on 3rd Point regarding (Inclusive of Validity of Will dated 01.06.1982 sub paras wherein executed by Raja Harinder Singh arguments and creation of Trust thereunder of the parties are separately discussed under different headings. 12 Conclusion on 3rd Point/Question 106-190 376-462

13 Discussion/Argument made by 191 to 198 462-471 the parties on 4th Point regarding Maintainability of Civil Suit filed by Kanwar Manjit Inder Singh.

14 Conclusion on 4th Point/Question 199-200 471-472

15 Discussion/Conclusion on effect 201-210 472-479 of Will dated 29.03.1990 (Ex.D-10) executed by Maharani Mohinder Kaur

16 Point wise discussion on 5th 211 479-480 Point/Question re: Maintainability of Civil Suit filed by the plaintiff Rajkumari Amrit Kaur.

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Sr.No. Title/Sub-Titles Para No.(s) Page No.(s) 17 Discussion/Argument regarding: 212 & 213 480-506 (a) Court Fee (b) Section 34 of Specific Relief Act

Conclusion on (a) and (b) 214 to 218 506-509 18 Discussion/Argument regarding: (c) Non-joinder and mis-joinder of 219 & 220 509-516 necessary parties.

Conclusion 221 516-518 19 Discussion/Argument regarding: 222 & 223 518-520 (d) Relief beyond pleadings

Conclusion 224 520 20 Discussion/Argument regarding: (e) Assignment of right by the plaintiff 225 520-523 in favour of 3rd party

Conclusion 226 & 227 523-524 21 Discussion/Argument regarding: (f) Limitation to challenge the Will 228 to 230 524-539 dated 01.06.1982

Conclusion 231 539-540 22 Discussion/Argument regarding: (g) Limitation with regard to the 232 & 233 540-544 filing of court fee

Conclusion 234 544-545 23 Overall conclusion 235 to 238 545-547

RAJ MOHAN SINGH, J.

[1]. Vide this common judgment RSA Nos.2006, 1418

and 2176 of 2018 (O&M) are being decided. Since the dispute

relates to the succession of Late Maharaja Colonel Sir Harinder

Singh Brar Bans Bahadur KCIS Ex.-Ruler of former Faridkot

State, therefore, for the sake of brevity common facts are being

noticed.

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Facts

[2]. Late Maharaja Colonel Sir Harinder Singh Brar was

the last ruler of the former Faridkot State. He was born on

29.01.1915 and was the eldest son of Maharaja H.S. Farjand-i-

Saddat-Nishan Hazrat-i-Kesar-i-Hind Maharaja Brij Inder Singh

Brar Bans Bahadur Raja of Faridkot. Raja Harinder Singh Brar

died on 16.10.1989. His only son Tikka Harmohinder Singh died

on 13.10.1981. Raja Harinder Singh Brar was survived by three

daughters namely Rajkumari Amrit Kaur, Rajkumari Deepinder

Kaur and Rajkumari Mahipinder Kaur. Father of Raja Harinder

Singh Brar i.e. Maharaja Brij Inder Singh died in the year 1918.

He was survived by his widow Maharani Mohinder Kaur, Raja

Harinder Singh Brar and Kanwar Manjit Inder Singh. Raja

Harinder Singh Brar succeeded by his three daughters as his

son Tikka Harmohinder Singh had died earlier to his death.

Kanwar Manjit Inder Singh was succeeded by Tikka Bharat

Inder Singh, Rajkumari Devinder Kaur and thereafter Rajkumari

Heminder Kaur. Wife of Raja Harinder Singh Brar had died

during his life time, however she was alive on 01.06.1982 i.e.

the date on which Raja Harinder Singh Brar is purported to have

executed the alleged Will. Raja Harinder Singh Brar died on

16.10.1989 in Batra Hospital at Delhi. His dead body was

brought to Faridkot and was cremated on 17.10.1989 with royal

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family traditions in Shahi Samadhan.

[3]. On 20.10.1989, Board of Trustees and Executors

assembled in the Palace known as Moti Mahal Qila Mubarik,

Faridkot, where Sardar Umrao Singh Dhaliwal read over the

contents of Will in the presence of Board of Trustees and

Executors. Under the aforesaid Will, all the concerned persons

are alleged to have occupied the position with which they were

invested under the said Will. They passed resolution No.1 dated

20.10.1989. Board of Trustees alleged to have taken

possession, control and management of the entire estate of

deceased Raja Harinder Singh Brar with the assent of the

Executors. The properties located in various revenue estates

were mutated in the name of the Trust and the urban properties

were also transferred in the name of the Trust.

[4]. Last rites of Raja Harinder Singh Brar were

performed on 26.10.1989 in Qila Mubarik, Faridkot, where

Sardar Karnail Singh Doad proclaimed in the huge gathering

that late Raja Harinder Singh Brar had executed a registered

Will dated 01.06.1982, thereby bequeathing his entire properties

in favour of Trust known as Maharwal Khewaji Trust with definite

Board of Trustees for the benefit of public at large.

[5]. On 14.10.1992, Rajkumari Amrit Kaur filed a suit for

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declaration that she is owner of 1/3rd share in the property as

shown in the headnote of the plaint along with consequential

relief of joint possession with defendants No.1 and 2. She

further sought relief of injunction restraining the defendants from

alienating the suit property by way of mortgage and exchange

etc. At a subsequent stage, she also challenged the Will by way

of amendment and in alternative prayer, claimed ownership of

entire estate left by the deceased Raja Harinder Singh Brar on

the basis of The Raja of Faridkot's Estate Act, 1948. The

second suit was filed by Kanwar Manjit Inder Singh through LRs

seeking inheritance of entire estate of deceased Raja Harinder

Singh on the basis of Rule of Primogeniture, besides

challenging the Will dated 01.06.1982 being null and void. Both

the suits were ordered to be consolidated and evidence was led

in Civil Suit No.473/1992 titled 'Rajkumari Amrit Kaur vs.

Maharani Deepinder Kaur and others'.

[6]. In the civil suit filed by Rajkumari Amrit Kaur, the

plaintiff has pleaded that Raja Harinder Singh Brar son of Brij

Inder Singh was the father of the plaintiff and defendants No.1 &

2. He was erstwhile Ruler of Faridkot State. The plaintiff and

defendants No.1 and 2 are the daughters of late Raja Harinder

Singh Brar, who died on 16.10.1989, leaving behind the plaintiff

and defendants No.1 and 2 to succeed the estate as only legal

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heirs under the Hindu Succession Act. Tikka Harmohinder

Singh was the only son of late Raja Harinder Singh Brar, who

died on 13.10.1981, prior to death of Raja Harinder Singh Brar.

Therefore, Tikka Harmohinder Singh pre-deceased his father

Raja Harinder Singh Brar. Wife of Raja Harinder Singh Brar

namely Rani Narinder Kaur died on 19.04.1986 during his life

time. She was however alive on 01.06.1982 i.e. the date on

which Raja Harinder Singh is alleged to have executed the Will.

Plaintiff has also pleaded in respect of Covenant/Agreement of

accession between the sovereign and Government of India. As

a result of the Covenant, PEPSU came into being and the

Rulers of covenanting States were required to submit a list of

properties to the Rajpramukh which they wanted to keep as

personal properties. Under the different Articles of Covenant,

the administration of State was to be run by the Rajpramukh

and the laws applicable to the State of Patiala were to apply

mutatis mutandis to PEPSU and the laws applicable to the

covenanting States had ceased to exist. The properties

belonging to the ancestors were claimed by the Raja as

belonging to him on the date of his making over the

administration of the State to the Rajpramukh. Raja was the

holder of title, ownership, use and enjoyment of the personal

properties as a member of the joint Hindu family property as well

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as a coparcener.

[7]. Plaintiff further pleaded that Raja Harinder Singh Brar

submitted a list of his properties, which was accepted by the

Union of India. The properties were treated to be the ancestral

as well private individual properties, subject to the law of

inheritance. The inheritance of such properties cannot be

governed by Rule of Primogeniture. At the most the Rule of

Primogeniture could apply to the Gaddi and such properties

which are distinct from personal properties are preserved by

Raja. Plaintiff further pleaded that Rule of Primogeniture is

feudal law and the same is violative of the Constitution of India

and is against the Hindu Succession Act. It is also

discriminatory because it excludes females in the matter of

inheritance. Plaintiff further pleaded that the properties in

dispute are joint Hindu and ancestral properties, therefore,

plaintiff is entitled to succeed to the properties along with

defendants No.1 and 2 after the death of Raja Harinder Singh

Brar. Raja had no right to alienate such ancestral/joint Hindu

family properties by way of alleged Will and the plaintiff is

entitled to succeed to the entire estate of her father Raja

Harinder Singh Brar even assuming (without admitting) that the

same is impartible. Since the plaintiff is eldest surviving child

and there is no male child, who will have any priority to her

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under the rule of lineal primogeniture, therefore, the plaintiff

claimed that she is entitled to succeed the entire estate of her

father. In alternative and without prejudice to the aforesaid, the

plaintiff claimed that on the basis of The Raja of Faridkot's

Estate Act, 1948, she is entitled to the entire estate of Raja

Harinder Singh under Section 4(3) of the Act being legitimate

descendent of late Raja. In any event and without prejudice to

the aforesaid, the plaintiff claimed that she is entitled to 1/3rd

share in the estate of her father as prayed, as the plaintiff and

defendants No.1 and 2 are the nearest agnates contemplated

by the Act. Raja had no right to alienate the properties which are

joint Hindu family/ancestral/coparcenary properties of late Raja

except for the maintenance of corpus of joint Hindu family. Raja

Harinder Singh was a Hindu and was governed by the Hindu

Succession Act. Section 4 of the said Act had abrogated the

custom. Raja Harinder Singh died on 16.10.1989 and thereafter

plaintiff and defendants No.1 and 2 inherited the property in

equal shares according to Hindu Succession Act. The

defendants have no right on the basis of alleged Will dated

01.06.1982 which they have set up by way of forgery and

fabrication of document.

[8]. The plaintiff further claimed that the alleged Will is

surrounded by suspicious circumstances, therefore, the

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inheritance of the properties left by Raja Harinder Singh would

be governed by Section 8 of the Hindu Succession Act to which

plaintiff and defendants No.1 and 2 have equal shares. The

ancestral property could not be alienated by way of alleged Will

or otherwise.

[9]. The plaintiff has challenged the execution of Will on

numerous grounds. It has been averred that the plaintiff is the

eldest daughter of Raja Harinder Singh and her mother was

alive at the time of execution of alleged Will, but they were left

out of the bequest and were accommodated on a small portion

as compared to the wealth and quantum of the property in the

alleged Will. Maharani Mohinder Kaur, mother of the Raja

Harinder Singh Brar was also alive at the time of execution of

the alleged Will, but she was completely ignored and denied any

share or position in the Trust. No provision has been made in

the alleged Will for the dependents of deceased Raja according

to their status and standard of their living which they led.

[10]. Plaintiff further pleaded that the alleged Will is result

of misrepresentation, undue influence played upon late Raja

Harinder Singh and was not an act of voluntary disposition. It

has been averred that Sh. Brijinder Pal Singh Brar, Advocate

one of the attesting witness of the Will has exercised undue

influence upon Raja. After death of Tikka Harmohinder Singh

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only son of Raja Harinder Singh on 13.10.1981, Raja used to

remain depressed. He was mentally upset because of death of

his only son. After about eight months, the Will in question was

allegedly executed with the help of the beneficiaries as the Raja

was surrounded by the coterie around him, who took benefit of

vulnerability of Raja and exercised undue influence upon him by

way of misrepresentation and fraud. The alleged Will is claimed

to be null and void. The Will has been challenged on numerous

grounds like, spacing for date in the alleged Will which was kept

blank and was subsequently filled in with pen, whereas whole of

the remaining Will is duly typed. No reasons have been given in

the alleged Will by the testator for excluding the plaintiff, her

mother and her grandmother.

[11]. Raja is purported to have created the Trust known as

Maharwal Khewaji Trust by the Will to be managed by the

trustees. Creation of said Trust is claimed to be illegal under the

provisions of Indian Trust Act. According to the Will, the Trust in

perpetuity has been created which is void ab initio and is not

permissible in the law. The dominant purpose of the alleged

Trust is to look after the old and defunct buildings and other

immovable properties of late Raja Harinder Singh. There is no

provision as to how the surplus income is to be utilized. Plaintiff

claimed that the Trust created by way of the Will is vague and

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suffers from inherent defect. Raja Harinder Singh Brar could not

create any Trust in respect of joint Hindu family/ancestral

property inherited by him from his ancestors. Creation of Trust

was claimed to be illegal.

[12]. With the aforesaid background the suit has been filed

which has been opposed by the defendants. In the written

statement defendants also took objections to the effect that

Kanwar Manjit Inder Singh younger brother of late Raja Harinder

Singh Brar has also staked his claim to succeed to the estate of

late Raja Harinder Singh Brar and he has also filed Civil Suit

No.75 of 01.04.1982 titled 'Kanwar Manjit Inder Singh vs.

Maharani Deepinder Kaur and others' in respect of the suit

property. The defendants have contested the suit on the ground

of suit being not property valued for the purpose of court fee and

jurisdiction. Plaintiff has claimed joint possession to the extent of

1/3rd share of the suit property and has fixed value of the suit

property at a low value of Rs.130 only and has affixed a very

meager court fee of Rs.19.50 paisa, whereas market value of

the suit property would run into billions of rupees. The

defendants claimed that the market value of the property has

been estimated by the District Valuation Officer appointed by

the Government of India under Section 16-A of the Wealth Tax

Act, 1957 in the manner as suggested in the written statement.

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In addition to the above, defendants claimed the market value of

the properties i.e. stables, Faridkot in an area around 4 acres

and Surajgarh Fort at Manimajra in an area of 5 acres is Rs.30

lakhs and 2 crores respectively. The market value of the

immovable properties would run into billions. The deficiency in

court fee should be made good from the plaintiff and the suit is

bad for non-joinder of the necessary parties.

[13]. Defendants also claimed that that land bearing

Khasra No.43/6, 31 Kanals 15 Marlas in village Kaimbwala is in

possession of the UT Administration, Chandigarh which is also

a necessary party to the suit. Similarly remaining land in

revenue estate of Kaimbwala (except 12 Kanals comprised in

Rectangle No.27, Killa No.24/2/2 and Killa No.25) is also in

possession of Forest Department, UT, Chandigarh. The

possession of the aforesaid land was taken as a measure of soil

conservation, therefore, Forest Department of UT, Chandigarh

is also necessary party to the suit. Defendants further pleaded

that land at Mauli Jagran measuring 13 Kanals 1 Marla is also

recorded as shamlat deh, therefore, Gram Panchayat or

members of the village proprietary body are also necessary

party to the suit. They also pleaded that the land in Ballabhgarh

revenue estate bearing Khasra Nos.156, 157 and 158 are

recorded in the revenue record in the possession of District

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Board of Zila Parishad and PWD Department, Haryana.

Therefore, in their absence the suit cannot proceed. A part of

Khasra No.158 measuring 1 Kanal 15 Marlas has already been

sold. Vendees of the aforesaid land are in possession of the

same and they are also necessary parties to the suit. On that

score the suit is claimed to be not maintainable. Khasra No.133

of Revenue Estate Ballabhgarh is also in possession of Pujari of

Mandir Sh. Mool Chand and his descendants as shown in the

jamabandi and, therefore, they are also necessary parties to the

suit. Some of the land in revenue estate Dhana was also

declared surplus under the Punjab Land Tenure Act, 1953 vide

order dated 01.05.1979 passed by the Special Collector and the

Haryana Government has taken possession of the said land and

thereafter ejectable and eligible tenants were settled, who are in

possession of the land, therefore, State of Haryana and the said

tenants are necessary parties to the suit.

[14]. Defendants further submitted that one of the original

trustees namely Sardar Niranjan Singh, Treasury and Accounts

Officer/H.H. Personnel Estate has unfortunately died on

15.01.1992 and according to the terms and conditions of the

Trust, the board of trustees have appointed Lieutenant Mukhtiar

Singh Sandhu son of S. Tota Singh resident of village Qila Nau,

Tehsil and District Faridkot as trustee in place of Sardar

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Niranjan Singh vide resolution No.55 dated 13.04.1992.

Lieutenant Mukhtiar Singh Sandhu has accepted the

appointment and has taken over as trustee. He is also a

necessary party to the suit. The suit is deficient in terms of full

description of the particulars as required under Order 7 Rule 3

CPC. The descriptions of the suit property are vague and

incomplete. Similarly no particulars and identifiable description

of movable properties have been given. The details of such

properties have been duly recited in the written statements.

Defendants also pleaded that the property known as Fairy

cottage (Country Club) situated in Bir Chahal, Tehsil and District

Faridkot, Flat No.32, Riviera Apartments, The Mall, Delhi and

one another property stand vested in declaratory Trust known

as "Faridkot Ruling Family Housing Trust" created by late Raja

Harinder Singh Brar. The beneficiaries of this Trust are all the

three daughters of the settler. The said properties are in the

possession of the beneficiaries, therefore, the suit is not

maintainable qua the same. The aforesaid Trust is also

necessary party in the suit. These properties ceased to be the

ownership of the testator. A part of screw factory area is in

possession of District Red Cross Society, which has built over

there Amar Ashram, therefore, District Red Cross Society,

Faridkot is also necessary party in the suit. In the Revenue

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estate of Mashobra land measuring 87 Bighas 8 Biswas of land

comprising Khasra Nos.37/1/50, 52, 60/2, 65/1 and 77 has has

been declared surplus by the Collector Agrarian, Himachal

Pradesh vide order dated 28.04.1985 and the appeal against

the said order has been dismissed by the Commissioner,

Shimla Division vide order dated 05.11.1990. The revision

petition has also been dismissed by the Financial

Commissioner, Himachal Pradesh. The possession has been

taken over as per rapat roznamcha No.439 dated 24.07.1991.

Therefore, State of Himachal Pradesh is also necessary party to

the suit.

[15]. Defendants further pleaded that members of the

Board of Trustees of Maharwal Khewaji Trust should have been

impleaded personally in the suit. The civil suit at Chandigarh

has no territorial jurisdiction to entertain the suit because the

plaintiff has claimed the suit property to be ancestral

coparcenary and joint Hindu family property of the testator by

alleging that late Raja Harinder Singh Brar was not capable of

making any Will. The properties within UT Chandigarh as

referred to in the plaint do not fall within the scope of present

suit. The agricultural land in village Kaimbwala, Mauli Jagran

and Manimajra, constructed fort known as Surajgarh Fort at

Manimajra and hotel site No.12 in Sector 17 Chandigarh were

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gifted to Raja Harinder Singh Brar by his grandmother Rani

Suraj Kaur vide registered gift deed dated 18.02.1937 along

with other landed and immovable properties mentioned in the

gift deed. Rani Suraj Kaur had inherited the said properties from

her mother Shabdit Kaur which the later had inherited from her

husband Raja Bhagwan Singh vide mutation No.207 dated

30.05.1937 which was sanctioned in respect land in village

Kaimbwala and mutation No.768 dated 31.05.1937 sanctioned

in respect of land of Manimajra. The inheritance of the land was

duly recorded in the mutation No.207/30.05.1937. Hotel Site

No.12 in Sector 17-D, Chandigarh had an area of 13198.77 sq.

yards which was purchased by the testator late Raja Harinder

Singh Brar in an open auction on 27.09.1970 as a commercial

site for a consideration of Rs.13,40,000/- which is apparent from

the sale letter dated 05.11.1970 issued by Estate Officer,

Chandigarh. The installments were paid by the testator during

his own life, therefore, the aforesaid properties are self acquired

properties. None of these could form the subject matter of the

suit property. None of the properties can ever remotely be

claimed by the plaintiff to be ancestral properties. Under these

circumstance, none of the properties mentioned in the suit could

be claimed by the plaintiff to be an ancestral properties of late

Raja Harinder Singh Brar, which are located within the

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jurisdiction of trial Court. On these grounds, the defendants

claimed that the Civil Court at Chandigarh had no jurisdiction to

entertain the suit. The board of trustees of Maharwal Khewaji

Trust created by the impugned Will comprising of defendants

No.3 (1, 2, 3, 5, 7) and Sardar Niranjan Singh after the demise

of late Raja Harinder Singh Brar had taken over possession,

control and management of the estate of deceased Raja with

assent of the executors appointed under the Will, therefore,

defendants No.3, (4, 6 and 9) are not necessary parties.

Similarly, defendants No.3 (8 & 10) are also not necessary

parties.

[16]. Defendants further pleaded that the claim for

additional declaration and relief as sought in the amended plaint

dated 18.11.1993 are beyond time. Raja Harinder Singh Brar

died on 16.10.1989. The Trust comprising of defendant No.3 (1,

2, 3, 5,7) and late S. Niranjan Singh as members of the board of

trustees of Maharwal Khewaji Trust, Faridkot constituted by the

registered Will dated 01.06.1982 had taken over the

management, possession and control of the entire estate and

since then they are in actual and physical possession of the

property and are administering the Trust according to terms of

the Will which is apparent as per Resolution No.1 dated

20.10.1989 and other resolutions passed in that context. The

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claim for additional declaration and relief as made in the

amended plaint are claimed to be beyond limitation for which

the plaintiff is not entitled to sue the trustees of the Trust namely

Maharwal Khewaji Trust personally for accounts. Plaintiff has no

right to claim accounts from the trustees. Trustees are bound to

execute the Trust in accordance with the directions given in the

Will. The plaintiff is not entitled to claim any account from the

defendants No.3 (4, 6, 9). As per conditions of the Will dated

01.06.1982 they are only executors and not the trustees. The

suit has not been property valued and for the relief of rendition

of account in the amended plaint, alternative relief of the plaintiff

being exclusive owner of the suit property is made and

consequential relief as may be necessary in the facts and

circumstances of the case has been made. Plaintiff is not in

possession of the suit property. In the amended plaint, the

plaintiff seeks declaration to be in deemed possession along

with defendants No.1 and 2. For seeking alternative relief of

exclusive ownership under The Raja of Faridkot's Estate Act,

1948, the plaintiff has to value her suit for the purpose of court

fee and jurisdiction for consequential relief flowing from the

above declaration. If the plaintiff claims herself to be an

exclusive owner and not in possession, then she is required to

pay ad valorem court fee on the market value of the suit

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property for claiming consequential relief. In the original suit, the

plaintiff has sought declaration that she is owner of 1/3rd share

in the suit property and she claimed the relief of possession for

which suit is not properly valued.

[17]. Defendants further pleaded that defendants No.1 and

2 admittedly and jointly after demise of testator have not entered

into possession of any part of the estate of late Raja Harinder

Singh in their capacity as natural heirs and defendants No.1 and

2 have never staked any claim to the succession of the estate of

Raja Harinder Singh Brar as natural heirs after demise of the

testator, rather they accepted the Will and also accepted the

offices to which they were invested by the Will. All these things

are clear from resolution No.1 dated 20.10.1989 and other

resolutions of the Board of Trustees of Maharwal Khewaji Trust.

The trustees have taken over the possession, control and

management of the entire estate of the deceased Raja Harinder

Singh Brar and are in actual physical possession of the property

in the capacity as trustees. Agricultural land situated in different

revenue estates have already been mutated in the name of

Board of Trustees and Trust is recorded to be in possession of

the said properties. One of the properties, situated in Faridkot

and Mashobra have also been mutated in the name of the Trust.

Plaintiff is out of possession and defendants No.1 and 2 being

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not in actual possession of any part of the suit property,

therefore, plaintiff cannot claim any declaration to be in deemed

possession. Simpliciter suit for declaration is not maintainable

without seeking relief of possession under the proviso to Section

34 of the Specific Relief Act.

[18]. On merits the defendants have denied the averments

of the plaint and claimed that the Will in question is validly

executed. Wife of Raja Harinder Singh Brar died on 19.04.1986.

She was alive on 01.06.1982. She was living separately and

getting fixed monthly sum as maintenance from her husband

prior to 01.06.1982 and subsequently thereto till her death.

[19]. Defendants further pleaded that the Rule of

Primogeniture was never applied in the Faridkot Estate. In fact

no female especially married one could succeed under the

alleged Rule of Primogeniture. The testator was having every

right to alienate the property through Will. The properties were

his personal and self acquired properties. The Will is claimed to

be genuine and not surrounded by suspicious circumstances.

The Will was read out from the ramparts of historic Qila

Mubarik, Faridkot on the Bhog ceremony and last rites of the

testator in the presence of plaintiff and her husband. She was

given photocopy of the Will duly attested by the Chief Executive

S. Umrao Singh Dhaliwal. After conclusion of the Bhog

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ceremony, plaintiff never raised any finger against the Will,

rather acquiesced the taking over of the estate of the testator by

the Trust. In the Will there is recital with regard to the

maintenance and other provisions for the family members of the

testator.

[20]. Testator also created a Trust in England vide

settlement deed dated 01.04.1955 making Grindlays Bank

London as sole trustee with the object that his daughters would

not lay claim to his remaining estate. By pleading the aforesaid,

defendants claimed that this act is a clear manifestation of the

intention of the testator. The income from the Trust was in full

and final satisfaction of the claims of the daughters to his estate.

The Bank was directed to disburse the income of the above

investment, out of which half yearly of first portion is of his three

daughters and of the second portion to be disbursed to his son

Tikka Harmohinder Singh. The Bank was also authorized to sell

or convert the above investments and invest into the money in

any manner to maximize the income of the beneficiaries. After

the death of Tikka Harmohinder Singh i.e. the only son of the

testator, income of the second portion of the said Trust also

destined to go to the three daughters. The income from the

above income has been paid throughout regularly by the Bank

according to their respective shares. Permanent regular income

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from the Trust is quite healthy amount for meeting expenses of

the daughters of the testator according to their status.

Provisions made in the settlement deed dated 01.04.1955

cannot be said to be meager or paltry in any manner.

[21]. Defendants further claimed that the plaintiff was not

at all dependent upon the testator at the time of execution of the

Will or at the time of his death. Plaintiff got herself married in the

year 1952 with high ranking police officer in State of Haryana.

Her husband had a stint in BSF and ultimately retired as DIG.

Throughout his long service in Police Department, the husband

of the plaintiff commanded great influence. The plaintiff has built

up a very big house in Chandigarh. Family of the plaintiff owns

considerable land in different villages and plaintiff is leading high

profile life and her family is well placed.

[22]. The defendant Kanwar Manjit Inder Singh, plaintiff of

the connected case also filed separate written statement

questioning the entitlement of the plaintiff viz-a-viz. the

properties left by late Raja Harinder Singh. He claimed that in

the matter of succession rule of lineal primogeniture would

apply. In the absence of male living child, the brothers would

succeed to the late Raja Harinder Singh Brar and he would

inherit all the moveable and immovable properties left by Raja

Harinder Singh Brar. Answering defendant was the only brother,

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therefore, he would inherit all the properties left by late Raja

Harinder Singh Brar. According to Rule of Primogeniture,

females do not inherit any property and no cause of action is

accrued in favour of the plaintiff to file the suit in question.

Answering defendants also claimed the Will to be fictitious,

forged and fabricated document. Creation of Trust by the

alleged Will is also claimed to be null and void. The

nomenclature of the Trust created in the Will is claimed to be

vague, indefinite and suffers from defects.

[23]. After completion of pleadings, the parties in the both

the suits went to trial on the following issues:-

"1. Whether the plaintiff is entitled to succeed to the extent of 1/3rd share of the suit property alongwith defendants no.1 and 2 being daughters of deceased under the provisions of Hindu Succession Act and the plaintiff thus is owner of 1/3rd share of the suit property? OPP

2. Whether in the alternative, the plaintiff is entitled to succeed to the entire estate of her father being eldest surviving child? OPP

3. Whether in the alternative, the plaintiff is entitled to succeed as sole owner under Raja of Faridkot Estate Act, 1948 (Act No.5 of 1948) being senior most living child? OPP

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4. Whether the property mentioned in Annexure A1 is joint family and ancestral coparcenary property and late Raja Harinder Singh had no right to alienate in any manner? OPP

5. Whether Raja Harinder Singh was governed by Hindu Succession Act which had abrogated custom and plaintiff and defendants no.1 and 2 inherited the property in dispute in equal share according to Hindu Succession Act and plaintiff has become owner of 1/3rd share of the suit property?

OPP

6. Whether the deceased Raja Harinder Singh of Faridkot executed a valid Will dated 1- 6.1982? if so, what is its effect? OPD

7. Whether the deceased Raja Harinder Singh executed a valid Trust known as Faridkot Rulling Family Housing Trust with the plaintiff and the defendant no.1 and deceased defendant no.2 being sole beneficiaries? If so, what is its effect? OPD

8. Whether the defendants are liable to render accounts for the period they have managing and receiving income from the properties left by the deceased late Raja Harinder Singh?

OPD

9. Whether the suit is bad for non-joinder or misjoinder of parties? If so, what is its effect? OPD

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10. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? If son what is its effect? OPD

11. Whether this Court has no territorial jurisdiction to try the suit? OPD

12. Whether the Trust known as "Maharwal Khewaji Trust" is valid legal entity? If so, what is its effect? OPD

13. Whether the family of Raja Harinder Singh and defendant no.6 Kanwar Manjit Inder Singh in matters of inheritance and succession is governed by the Rule of Primogeniture and in the absence of male lineal child according to custom, brother succeeded to the estate? OPD-6.

14. Whether Kanwar Manjit Inder Singh defendant no.6 inherited all the immovable and movable properties of late Raja Harinder Singh under the law of Primogeniture? OPD-

6.

15. Whether according to Article 14 fo the covenants of Pepsu to which later Raja Harinder Singh was signatory, succession was according to law and custom to the Gaddi of each Covenanting States was guaranteed and according to which plaintiff under custom is entitled to inheritance to the estate of Raja Harinder Singh under rule of Primogeniture and the female heirs have no

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right to succeed to the property of late Raja Harinder Singh according to custom and rule of Primogeniture? OPD-6.

16. Relief."

[24]. Both the parties led evidence. The trial Court took up

issues No.1 to 8, 12 and 15 together and found after scanning

the entire evidence of the parties that the pivotal question in

these issues is whether deceased Raja Harinder Singh

executed a valid Will in favour of defendant? The propounder of

the Will has to clear all the suspicious circumstances and satisfy

the conscious of the Court that there was reason for the testator

to prefer the propounder of the Will and exclude others. The

Court while deciding the issue has to consider the solemn

question and must be fully satisfied that the testator had

executed his last Will. The trial Court, ultimately, on the basis of

evidence held that the Will does not appear to be genuine as

there are large number of suspicious circumstances proving the

Will to be an invalid document. As regards applicability of the

Rule of Primogeniture to the estate of Raja Harinder Singh, the

trial Court held that Rule of Primogeniture is not applicable, nor

The Raja of Faridkot's Estate Act, 1948 applies to the case. The

trial Court further held that the earlier suits decided by the

Courts at District Faridkot, the plaintiff Rajkumari Amrit Kaur was

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not party in those cases, therefore, the plaintiff was not bound

by the earlier judgments. As regards maintainability of the suit,

the trial Court held that the statement given by Naresh

Prabhakar, Advocate was valid upto filing of amended suit and

no order was passed thereafter by the Court. Even the

defendants accepted the statement and insisted for payment of

ad valorem court fee. Therefore, the Court never allowed the

plaintiff to waive her claim with regard to consequential relief.

The trial Court held that the suit instituted by the plaintiff

Rajkumari Amrit Kaur is maintainable. As regards limitation, the

trial Court held that the suit is within limitation as the same is

governed by Article 65 of the Limitation Act which prescribes 12

years of limitation for possession of immovable properties or any

interest therein based on title and the time began to run when

possession of the defendant has become adverse to the

plaintiff. In the instant case, the plaintiff could file the suit for

possession on the basis of inheritance after the death of her

father and the suit could be defeated by the defendants, if they

proved that their possession was adverse. No question of

adverse possession is available to the defendants in the instant

case, nor the same has been set up by the defendants in the

pleadings. As regards rendition of accounts, the trial Court held

that the plaintiff is not entitled for rendition of accounts from the

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defendants as the same is available to the partners of the firm

for dissolution of partnership firm and when there is a fiduciary

relationship between the parties to the lis. There is no dispute

between the partners, nor there is any fiduciary relationship

between them. The issue of non-joinder and mis-joinder was not

pressed by the defendants. The trial Court despite the aforesaid

fact observed that the suit is bad for non-joinder and mis-joinder

of necessary parties. To that extent the observation of the Court

is to be seen in legal prospects. As regards valuation and

sufficiency of court fee, the trial Court held that the court fee

affixed in pursuance of application for depositing the court fee

filed is sufficient as the revision petition filed by the defendants

against the order was dismissed by the High Court and no

further challenge was made by the defendants. Deposit of court

fee of Rs.15,43,550/- after calculating the value of Raja's Estate

was held to be proper court fee. The trial Court also observed

that the onus of issue was on the defendants to prove market

value of the properties in question. Defendants have failed to

give exact and correct market value of the properties which

have to be inherited by the plaintiff by way of natural

succession. Since the Will has been set aside, therefore,

according to the stand taken by the plaintiff the Court proceeded

to hold that the plaintiff has paid court fee of Rs.15,43,550/-

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which is just and proper. As regards the issue of territorial

jurisdiction, the defendants did not press that issue and the

same was decided in favour of the plaintiff. Ultimately the trial

Court partly decreed the suit of the plaintiff and partly dismissed

the same vide judgment and decree dated 25.07.2013 passed

by the Addl. Civil Judge (Senior Division) Chandigarh. Relevant

operative part of the decree reads as under:-

"It is ordered that suit of the plaintiff Raj Kumari Amrit Kaur is hereby partly dismissed and partly decreed with costs and the Will dated 1-6-1982 is hereby declared as null and void, not binding upon the rights of plaintiff Amrit Kaur. The plaintiff Amrit Kaur is entitled to joint possession to the extent of ½ (half) share with defendant No.1 Maharani Deepinder Kaur qua the properties fully detailed and described in Annexure A1, except the properties which have been acquired by any State Governments or Central Government. Trust which was constituted on the basis of the alleged Will is hereby declared as non-existent. The defendants are also restrained from alienating, mortgaging, transferring, leasing, encumbering or exchanging the suit property as fully detailed and described in Annexure A1. Annexure A1 be treated as part of decree. Suit being maintained by plaintiff Kanwar Manjit Inder Singh through his legal heir is hereby dismissed with no order as to costs."

[25]. Feeling aggrieved against the aforesaid judgment

and decree dated 25.07.2013 passed by the Addl. Civil Judge

(Senior Division) Chandigarh, Civil Appeal No.1046/13 titled

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and others, Civil Appeal No.480/17 titled 'Maharani Deepinder

Kaur and others vs. Rajkumari Amrit Kaur and others', Cross-

objections under Order 41 Rule 22 CPC on behalf of Rajkumari

Amrit Kaur, Civil Appeal No.1054/2013 titled 'Bharat Inder Singh

(since deceased) through his LR vs. Maharwal Khewaji Trust

through Board of Trustees and others and Civil Appeal

No.1062/13 titled 'Bharat Inder Singh (since deceased) through

LR vs. Maharwal Khewaji Trust through Board of Trustees and

others' were filed before the lower Appellate Court. Vide

common judgment, all the Civil Appeals and cross-objections

were taken up together and the lower Appellate Court vide

judgment and decree dated 05.02.2018 dismissed all the appeal

and cross-objections with costs. That is how the present

Regular Second Appeals came to be filed by the concerned

parties.

[26]. Aggrieved against the judgment and decree of the

lower Appellate Court, Rajkumari Amrit Kaur has preferred RSA

No.2006 of 2018, in which she has claimed the entire estate of

Late Raja Harinder Singh Brar on the basis of The Raja of

Faridkot's Estate Act, 1948 besides challenging the Will dated

01.06.1982.

[27]. In RSA No.2176 of 2018 preferred by Bharat Inder

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Singh (since deceased) through his LR Kanwar Amarinder

Singh Brar, the estate of Late Raja Harinder Singh Brar has

been claimed on the basis of primogeniture.

[28]. In RSA No.1418 of 2018 Maharani Deepinder Kaur

and others have staked their claim on the basis of validity of Will

and Trust created thereunder and have also challenged the

maintainability of the suit(s) filed by Rajkumari Amrit Kaur and

Kanwar Manjit Inder Singh through his LR Kanwar Amarinder

Singh Brar. They have also claimed that Rule of Primogeniture

is not in existence and The Raja of Faridkot's Estate Act, 1948

had already ceased to operate after the merger agreement and

coming into being of PEPSU.

[29]. On 05.05.1948, a Covenant was entered into

between the Union of India and Ruler of Faridkot along with

other Rulers. The sovereignty was surrendered. On 15.07.1948,

Patiala and East Punjab States Union (for short 'the PEPSU')

was inaugurated by Sardar Vallabh Bhai Patel. On 18.08.1948,

the Raja of Faridkot's Estate Act, 1948 received assent of his

Highness Ruler of Faridkot Raja Harinder Singh Brar. The

covenant was entered into by Raja on 05.05.1948. On the date

of giving assent to the Raja of Faridkot's Estate Act, on

18.08.1948, Raja was having no sovereign power to promulgate

any Act. This is one of the issue to be debated in RSA No.2006

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of 2018.

[30]. The Covenant by the Rulers of Faridkot, Jind,

Kapurthala, Malerkotla, Nabha, Patiala, Kalsia and Nalagarh for

the formation of PEPSU was entered into on 05.05.1948, which

is known as Covenant of Merger. Article X reads as under:-

"Article X

(1) There shall be formed, as soon as practicable a constituent Assembly in the manner indicated in Schedule II; and it shall be the duty of that Assembly to frame Constitution of unitary type for the Union within the framework of this Covenant and the Constitution of India and providing for a Government responsible to the legislature.

(2) Until a legislature elected in accordance with the terms if the Constitution framed by it comes into being, the Constituent Assembly as constituted in the manner indicated in Schedule II shall function as the interim legislature of the Union.

Provided that until a Constitution framed by the constituent Assembly comes into operation after receiving the Assent of the Rajpramukh, the Rajpramukh shall have power to make and promulgate ordinances for the peace and good Government of the Union or any part thereof, and any ordinance so made shall, for the space of not more than

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six months from its promulgation have the like force of law as an Act passed by the Constituent Assembly; but any such ordinance may be controlled or superseded by any such Act."

[31]. By exercising the powers under Article X of the

Covenant on 20.08.1948, the Rajpramukh promulgated

Ordinance (I of 2005 BK). Under Section 3 of the Ordinance, the

laws applicable in the State of Patiala were made applicable

mutatis mutandis and the law of all other covenanting States

ceased to have any effect.

[32]. Before expiry of six months of Ordinance (I of 2005

BK) on 15.02.1949, the Rajpramukh promulgated Ordinance

(XVI of 2005 BK) and the said ordinance also contained Section

3 (as reproduced in Ordinance I) providing that the laws

applicable in the State of Patiala were made applicable mutatis

mutandis and the laws of all other covenanting States ceased to

have any effect. Thereafter, Ordinance No.XVIII of 2006 BK was

promulgated by the Rajpramukh.

[33]. In PEPSU, the Constituent Assembly came into being

on 24.11.1949. A promulgation was made by Rajpramukh that

Constitution of India shall be the Constitution of the PEPSU.

With the aforesaid promulgation made by the Rajpramukh

regarding adoption of Constitution of India, Article X of the

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Covenant was substituted as under:

"Until the commencement of the Constitution of India, the legislative Authority of the Union shall vest in the Rajpramukh, who may promulgate ordinances for the peace and good Governance of the Union or part thereof and Ordinance so made shall have the like force of law as an Act passed by the Legislature of the Union."

[34]. On 26.01.1950, the Constitution of India came into

force and the same was adopted by the PEPSU. As a result of

such adoption of Constitution of India, Ordinance No.XVI was

saved by Article 372 of the Constitution of India which provides

that all the laws in force in the territory of India immediately

before commencement of the Constitution of India shall

continue in force until altered or repealed or modified by a

competent legislature of other competent authority.

[35]. Before deliberating upon the controversy involved in

these appeals, I would like to consider the following points for

deciding the appeals finally:-

(1) Whether The Raja of Faridkot' Estate Act 1948 is a valid enactment and is applicable for succession to the Estate of Raja by the plaintiff (Rajkumari Amrit Kaur)?

(2) Whether Law of Primogeniture is applicable in the succession of Estate of

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deceased Raja Harinder Singh?

(3) Whether Raja Harinder Singh executed a valid Will dated 01.06.1982 and Maharwal Khewaji Trust constituted thereunder is a legally constituted Trust?

(4) Whether Civil Suit No.4193 dated 21.08.2010/04.04.1992 titled 'Kanwar Manjit Inder Singh through LR vs. Maharani

Deepinder Kaur and others' is maintainable?

(5). Whether Civil Suit No.437 dated 23.07.2010/15.10.1992 titled 'Rajkumari Amrit Kaur vs. Maharani Deepinder Kaur and others is maintainable?

[36]. Now I would deal with the first point i.e. Whether The

Raja of Faridkot' Estate Act 1948 is a valid enactment and is

applicable for succession to the Estate of Raja by the

plaintiff (Rajkumari Amrit Kaur)?

[37]. Mr. Manjit Singh Khaira, Sr. Advocate assisted by Mr.

Balbir Singh Sewak, Advocate and other Advocates appearing

on behalf of the appellant-Rajkumari Amrit Kaur submitted as

under:-

(i). The ordinance cannot repeal The Raja of Faridkot's

Estate Act, 1948. Rajkumari Amrit Kaur alone succeeds the

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Estate of Raja under The Raja of Faridkot's Estate Act, 1948.

Rajkumari Amrit Kaur alone succeeds that Estate of Raja under

the custom of Primogeniture. Rajkumari Amrit Kaur is entitled to

succeed as per Section 4(3) of The Raja of Faridkot's Estate

Act, 1948.

(ii). The Raja of Faridkot and other rulers, who signed the

Covenant to form the PEPSU were sovereign till 20.08.1948,

when the new (PEPSU) came into existence on 20.08.1948.

According to Article VI of the Covenant (Ex.D-6) sovereignty of

the Rulers was intact till 20.08.1948. In support of his

contentions, learned Senior counsel referred to His Highness

Maharaja Pratap Singh vs. Her Highness Maharani Sarojini

Devi and others, (1994) Supp(1) SCC 734. Para No.49 of the

said judgment reads as under:-

"It is thus plain that the Ruler of Chattarpur lost none of his sovereignty by integrating his State with other States except to the extent in which it was arranged or redistributed on some of its aspects. It is in exercise of that sovereign power that the Ruler, in the manner indicated above, had set apart the property in dispute as one of his private properties, in the list submitted on July 5, 1948. It is nobody's case that he could not submit such a list on July 5, 1948. Further, it was in exercise of his sovereign as also individual right over his private property, that he transferred the house in dispute to his father-in-law on August 25, 1948. In these circumstances, the suggested Conference which took place later in September, 1949 between him and Shri N. M. Buch, Secretary in the

38 of 547 ::: Downloaded on - 01-06-2020 21:03:29 ::: RSA Nos.2006, 1418 & 2176 of 2018 (O&M) 39 Ministry of States, New Delhi, evident from letter Ex. P-9 dated January 22, 1950, and the lists Exs. P-10 to P-12, appended therewith, is not of much significance. In the first place, the Ruler denied when appearing as a witness in the trial as having received any such letter or the lists appended therewith, suggestive of the fact that he had reconverted the donated property to be a State property. In the second place, but for the said letter, purportedly issued at a time when the State of Chattarpur had otherwise ceded to the Central Government vide agreement dated January 1, 1950, there was no direct evidence forthcoming for such conference. In the third place, even if such Conference had taken place in September, 1949, as suggested, the minutes thereof cannot be treated as amounting to a divestiture of the gift made in favour of the father-in-law. Fourthly, the Ruler had no sovereign power towards administering his State which had become part of the integrated United State in terms of Article VI of the Covenant, and during the integration he could not exercise such a sovereign power, so as to take away the property of a private person and treat it as State property because the property in dispute having once vested in the defendant-appellants could not be divested in the manner suggested. And lastly, there was no raise able question or issue which the Ruler could, while sitting with Shri Buch, decide amicably without the aid of the judicial Officer nominated by the Government entering upon such dispute, because before integration he owned his State and its properties and there could legitimately not arise a dispute as to which was his private property or State property and thus its settlement by a mutual consent did not arise. Taking thus the totality of these circumstances in view, we are driven to the conclusion that the High Court committed an error that the , Ruler lost his sovereign right to earmark the property as his private property after May 1, 1948, or that the said property vested in the State with effect from that date or that the letter

39 of 547 ::: Downloaded on - 01-06-2020 21:03:29 ::: RSA Nos.2006, 1418 & 2176 of 2018 (O&M) 40 Ex. P-9 of Shri N. M. Buch and the lists attached thereto, had the effect of divesting the appellants of the title to the property in dispute in favour of the State with effect from that date. In that strain, factual position having not been denied, the validity of the gift dated August 25, 1948, cannot be questioned on the grounds enumerated in the plaint, due to exercise of sovereign power of the Ruler in the grant thereof at that point of time. Once that is held the claim for damages too caves in. We hold it accordingly."

(iii). In view of Tikka Shatrujit Singh vs. Brig. Sukhjit

Singh & Anr., 2011(1) ILR Delhi 704, the Ruler was the

absolute owner of all the properties and the ratio of His

Highness Maharaja Pratap Singh's case (supra) is conclusive

on this aspect. Some of the Princely States prior to their merger

into the dominion of India had enacted formal legislation in the

name of the Ruler. These succession Acts, specifically stated

that the rule of succession applicable to their respective families

would be the Rule of Primogeniture. Learned Senior counsel

referred to the extract of page No.295-296 of the White paper

showing the date of merger of the PEPSU as 20.08.1948.

(iv). The Raja of Faridkot's Estate Act, 1948 (Ex.P-1) was

enacted on 18.08.1948 by the Raja exercising his sovereign

powers two days prior to surrendering his sovereignty. As per

Section 4(3) of the Act, Rajkumari Amrit Kaur succeeds to the

entire estate of her father late Raja Harinder Singh being the

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eldest daughter and nearest agnate. Ordinance XVI of 2005 BK

(Ex.PX-2) does not repeal The Raja of Faridkot's Estate Act,

1948. Rajpramukh was one of eight Raja's, who signed the

Covenant to form PEPSU and was created by the terms of

Covenant. His powers were limited to those given by the

Covenant. The Covenant only delegated administrative powers

to the Rajpramukh and he was not given full legislative authority.

Rajpramukh had limited powers to promulgate ordinance for

peace and good government/governance only as per Article X of

the Covenant. Legislative powers of the PEPSU were delegated

to the Constituent Assembly of the PEPSU which was never

formed. Rajpramukh was mere an executive head and had

power to issue ordinances for peace and good

government/governance only. Rajpramukh was given only

Executive Authority as per Article IX of the Covenant, which

reads as under:-

"Subject to the provision of Covenant and of the Constitution to be framed thereunder, the Executive Authority of Union of India shall be exercised by the Rajpramukh either directly or through officers subordinate to him, but the Rajpramukh may from time to time consult the Up-Rajpramukh in important matters connected with the administration of Union of India. Nothing in this Article shall prevent the competent legislature of the Union of India from conferring functions upon subordinate authorities or to be deemed to be

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transferred to Rajpramukh any factions conferred by any existing law or any Court/Judge, Officer or local or other Authority in a covenanting State"

The Ordinance is only regarding administration of the

PEPSU according to the aforesaid Preamble. It did not affect

the law of succession of personal estates of rulers, who

surrendered their sovereignty by signing the Covenant.

(v). In view of the Preamble to the Ordinance as well as

its title, the Ordinance cannot repeal The Raja of Faridkot's

Estate Act, 1948 as the Act was enacted by Ruler of Faridkot as

succession to personal estate of Raja of Faridkot which had

nothing to do with the administration of PEPSU.

(vi). List of enactments repealed by Ordinance XVI of

2005 BK are contained in Section 17 of the Ordinance itself.

The Raja of Faridkot's Estate Act, 1948 is not mentioned in the

said list. The power to repeal law vests in the similar competent

authority which had the power to enact the law in view of

judgment of the Hon'ble Apex Court in Rama Krishna

Ramanath vs. The Janpad Sabha, Gondia, AIR 1962 SC

1073. The Rajpramukh was not competent to do the same being

an Executive head. The ordinance, exercising executive powers

cannot repeal the legislative Act.

(vii). In view of Privy Purse case H.H. Maharajadhiraja

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Madhav Rao Jivaji Rao scindia Bahadur of Gwalior and

others. vs. Union of India and anr., 1971(1) SCC 85, the

Ordinance cannot repeal the statute without amendment by the

competent authority. In the said case, the President of India

attempted to repeal Articles 291 and 362 of the Constitution of

India through an Ordinance and Notification which was struck

down by the Constitutional Bench of 11 Judges of the Hon'ble

Apex Court. Similarly, an attempt made by the President of India

by way of Notification to amend the Sikh Gurdwara Act, 1925

was also struck down by the Full Bench of the Punjab and

Haryana High Court. Later on, the Act itself was amended by an

Act of competent legislature. The Punjab and Haryana High

Court in Sehajdhari Sikh Federation vs. Union of India &

Ors., 2012(1) R.C.R. (Civil) 384 has held that no executive

order/notification can amend/repeal legislative Act.

(viii). The succession to occupancy right in Faridkot Estate

and Shahi Farman of Maharaja Kapurthala are still in force.

Both the States were part of PEPSU. If Ordinance No.XVI (2005

BK) promulgated by Rajpramukh, he has not repealed Shahi

Farman of Maharaja Kapurthala and succession to occupancy

rights of Faridkot Estate, then how could it repeal The Raja of

Faridkot's Estate Act, 1948. In view of Phuman Singh Prem

Singh vs. State of Patiala and anr., AIR 1961 Pb 200, the

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Ordinance did not repeal succession to occupancy rights of

Faridkot Estate and, therefore, the Ordinance cannot repeal The

Raja of Faridkot's Estate Act, 1948. Shahi Farman dated

12.03.1925 was issued by Maharaja Kapurthala and was not

repealed by Ordinance No.XVI (2005 BK) and the same was

protected by Article 372 of the Constitution of India as held in

State of Punjab and another vs. Brig. Sukhjit Singh, 1991(2)

PLR 39, wherein it was held that the Ordinance No.XVI (2005

BK) did not repeal the Shahi Farman of Maharaja Kapurthala. In

view of above, the said Ordinance could not repeal The Raja of

Faridkot's Estate Act, 1948.

(ix). Article 372 of the Constitution of India and its

Explanation Nos.I and IV protect The Raja of Faridkot's Estate

Act, 1948 which is still in operation. In view of Explanation Nos.I

and IV, even if it is assumed that Ordinance affected The Raja

of Faridkot's Estate Act, 1948, then even as per clause 3(I) of

the Ordinance, it does not repeal The Raja of Faridkot's Estate

Act, 1948, but at the most ceased to have effect as per the

clause. The Raja of Faridkot's Estate Act, 1948 stood revived in

view of Article 372 of the Constitution of India and its

Explanation Nos.I and IV, when the Constitution of India came

into force on 26.01.1950. Clause 3(I) of the Ordinance reads as

under:-

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"As from the appointed day all laws and rules, regulations, by laws and notifications made thereunder, and all other provisions having the force of law in Patiala State on the said day shall apply mutatis mutandis to the territories of the State and all laws in force in other covenanting States immediately before that day shall cease to have effect."

(x). The Article 372 of the Constitution of India only saves

those laws which trace their origin to the exercise of legislative

power, as held by the Hon'ble Apex Court in State of Gujarat

vs. Vora Fiddali, 1964 AIR SC 1043 wherein it was held that

what survives the Constitution and is continued by Article 372 of

the Constitution of India are those laws which could trace their

origin to the exercise of legislative power.

(xi). Section 5(ii) of Hindu Succession Act, 1956 protects

The Raja of Faridkot's Estate Act, 1948. The Hindu Succession

Act came into being in the year 1956. Section 5(ii) guaranteed

the continuation of The Raja of Faridkot's Estate Act, 1948. The

Act shall not apply to any estate which descends to a single heir

by the terms of any covenant or agreement entered into by the

Ruler of any Indian State with the Government of India or by the

terms of any enactment passed before the commencement of

this Act. The Succession Act 1956 was enacted for succession

of property rights and not enacted for the succession of 'Gaddi'.

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The meaning of term "Estate" means property and not 'Gaddi'.

The heading of Section 5 states that the 'Act not to apply to

certain properties'. The word 'Act' means Hindu Succession Act

as a whole including Section 4. The words used in Section 5 i.e.

'certain properties' and not 'Gaddi' which means Hindu

Succession Act does not apply to certain properties (properties

of special nature). This Section 5(ii) excludes the applicability of

Hindu Succession Act on the properties and not to Gaddi.

Section 5(ii) applies only to certain properties which fulfills the

following necessary conditions:-

(a) 'estate' which descends to single heir;

(b) by the terms of any covenant or agreement

entered into by the ruler of any Indian State with the

Government of India; or

(c) by the terms of any enactment passed

before the commencement of this Act (which in the

present case is The Raja of Faridkot's Estate Act,

1948 (Ex.P1). The result of which debars the

applicability of entire provisions of Hindu Succession

Act except Section 5(ii) which applies to certain

properties/estate of special kind which fulfills the said

criteria.

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(xii). The properties in dispute fulfill all the necessary

conditions of Section 5(ii) of the Act and, therefore, Rajkumari

Amrit Kaur alone succeeds to the entire estate of Raja Harinder

Singh Brar under Section 4(3) of The Raja of Faridkot's Estate

Act, 1948. Section 5(ii) of the Hindu Succession Act is an

exception to Section 4 of the aforesaid Act.

(xiii). The meaning of mutatis mutandis as contained in

Ordinance has been explained by the Hon'ble Apex Court in

Ashok Service Centre & others vs. State of Orissa, 1983

AIR (SC) 394 with reference to Section 3(i) of the Ordinance

XVI (2005 BK). There was no law in Patiala State to govern

inheritance of personal estate of Ruler of Patiala, therefore,

Section 3(i) of the Ordinance XVI (2005 BK), the expression

'mutatis mutandis' conveys that the law of State of Patiala will

only prevail on the subject, where there is corresponding law in

any of the covenanting States. As there was no law in Patiala

State to exclusively govern the inheritance of personal estate of

Maharaja Patiala, therefore, no law of Patiala would replace The

Raja of Faridkot's Estate Act, 1948. As per Section 3(i) of

Ordinance No.XVI (2005 BK), The Raja of Faridkot's Estate

Act, 1948 is neither general law of inheritance, nor it had

anything to do with the governance of the State. It is a law

regarding succession to the private properties of the Raja of

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Faridkot. Rajpramukh was not a sovereign. He was a creation of

the Covenant. He was only an Executive Head as per Article IX

and was empowered to exercise limited powers to govern under

the covenant as stated in Article X of the Covenant (Ex.D-6).

The powers were only in relation to peace and good

government/governance of the PEPSU till a competent

legislature (Constituent Assembly) of PEPSU come into

existence.

(xiv). The 'Impartible Estate' means an Estate inheritable

by a single heir and incapable of partition or sub division. It

means that the estate of Raja Harinder Singh cannot be

partitioned and only one can inherit the entire estate of Raja.

"The Raja of Faridkot's Estate" means all the personal and

private immovable and movable properties of late Raja,

wherever the same are situated and includes all additions and

accretions which may from time to time made there to, by the

holder of that Estate. It also includes all rights incidental and

appertaining thereto. All the properties acquired by the Raja at

any point of time during his lifetime and held by Raja in his

name at the time of his death are part of the Raja of Faridkot's

Estate and will devolve upon his successor according to Rule of

succession provided in the Act. According to Section 4(3) of The

Raja of Faridkot's Estate Act, 1948 females are not excluded.

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After the demise of Tikka Harmohinder Singh before the death

of Late Raja Harinder Singh, the property has to be devolved

upon the plaintiff Rajkumari Amrit Kaur in terms of Section 4(3)

of The Raja of Faridkot's Estate Act, 1948 i.e. the rule of

descent provided therein.

(xv). The Rule of descent provided by this Act would mean

that it will go downwards from his children as specified by the

Act itself and it would not go in ascending order to the

collaterals of Raja. Section 4(3) of The Raja of Faridkot's Estate

Act, 1948 reads as under:-

"If the holder of the Raja of Faridkot's Estate for the time being has no legitimate male descendant in the male line, and if he shall leave no legitimate descendants surviving him, the succession shall pass to the nearest agnates and such agnates shall be governed by the same rules and shall follow the same order."

(xvi). Clause 4(3) of The Raja of Faridkot's Estate Act,

1948 would mean that only when there is no legitimate male

descendants, the agnate would succeed. In the absence of

direct male heir, the plaintiff Rajkumari Amrit Kaur being the

eldest legitimate descendant and nearest agnate alone is

entitled to succeed estate of Raja Harinder Singh. A person is

said to be agnate of another if the two are related by blood or

adoption wholly through males.

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(xvii). The Preamble of 1948 Act declares the Estate to be

impartible Estate. It preserves and enforces the rule of descent.

Lineal Male preference is shown under Section 4(1) (a) to (c)

and Section 4(2) of the The Raja of Faridkot's Estate Act, 1948.

In the absence of any male descendant or legitimate male

descendant, Section 4(3) of the Act would come into play, which

would make the plaintiff Rajkumari Amrit Kaur entitled for

succession to the estate of her father being the eldest legitimate

descendant and nearest agnate. Raja did not exercise his right

of adoption. Lineal descendant is a blood relative in the direct

line of descent i.e. the children, grand children, great grand

children etc. of Late Raja Harinder Singh which includes both

male and female descendants. Lineal descendant is a

descendant in the direct line of descent. In Sunderlal

Chourasiya vs. Tejila Chourasiya and Ors.,2004 AIR MP 138

it was observed that the word descendants means those

persons who are in blood stream of the ancestor and further it

means those descended from another, persons who proceed

from a body of another such as child or grand child, to the

remotest degree. Descents are of two kinds, lineal and

collateral. Lineal descent is a descent in a direct or right line, as

from father or grand father to son or grand son. Collateral

descent is a descent in a collateral/oblique line i.e. upto the

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common ancestor and then down from him as from brother to

brother or between cousins.

(xviii). The Preamble cannot be used to eliminate as

redundant or inoperative, provisions of a statute. In other words,

the Preamble cannot be used to make specific provisions of a

statute to be redundant. In State of Rajasthan vs. Lila Jain,

AIR 1965 SC 1296 and Union of India vs. Elphinstone

Spinning and Weaving Co. Ltd. & Ors. (2001) AIR SC 724 it

was observed that when question arises as to the meaning of a

certain provision in a statute, it is not only legitimate, but proper

to read that provision in its context. The context means, the

statute as a whole, the previous state of law, other statutes in

pari-materia, the general scope of the statute and the mischief

that it was intended to remedy. The Preamble of an Act, no

doubt can also be read along with other provisions of the Act to

find out the meaning of the words in enacting provisions to

decide, whether they are clear or ambiguous, but the Preamble

in itself not being an enacting provision is not of the same

weight as an aid to construction of a Section of the Act, as are

other relevant enacting words to be found elsewhere in the Act.

The utility of the Preamble diminishes on a conclusion as to

clarity of enacting provisions. Therefore, the substantive

provision, Section 4(3) of The Raja of Faridkot's Estate Act,

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1948, being clear and unambiguous, the Preamble cannot

over-ride or restrict the effect of the aforesaid Act.

(xix). Section 5 of The Raja of Faridkot's Estate Act, 1948

is a provision for maintenance. The Raja was conscious that as

per Section 2 of the aforesaid Act, his Estate is impartible and

as per Section 4, it is inheritable in descends to a single heir,

therefore, for the maintenance of his widow and unmarried

daughters, he made provisions. In this way Section 5 in no way

relates to any succession rather, it is exclusively governed by

Section 4 of the aforesaid Act. The term "agnate" has not been

defined anywhere in the Act, however it finds mention in the

Hindu Succession Act, wherein as per Section 3(1)(a) of the

said Act, one person is said to be an 'agnate' of another, if the

two are related by blood or adoption wholly through males.

Rajkumari Amrit Kaur fully fits in the aforesaid definition, being

the first born child of late Raja and is a nearest agnate.

According to Section 5(ii) of the Hindu Succession Act, 1956,

estate descends to a "single heir" irrespective of male or

female.

(xx). The documents viz. Ex.PX-25 and Ex.PX-26 on the

record would show that while deciding the question as to the

legal heir of deceased Raja Harinder Singh, the High Court of

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Justice, Chancery Division, London has decided that Mrs. Amrit

Harpal Singh (Nee Rajkumari Amrit Kaur) is entitled to the

income of second portion which was previously going to Tikka

Harmohinder Singh son of Raja Harinder Singh. Defendants

No.1 and 2 were parties to the judgment and they never

challenged the legality of the aforesaid judgment dated

22.07.1996 in accordance with law and the said fact has been

admitted by defendant No.1 while appearing as DW-3,

therefore, the findings recorded by the Foreign Court are

conclusive and binding on the rights of the defendants under

Section 13 of the Code of Civil Procedure.

(xxi). In view of aforesaid, it is apparent that DW-3

Deepinder Kaur has admitted on 12.03.2013 that the Trust

office, Faridkot wrote letter to the Bank authorities in U.K. that

the transfer money of her father be not given to anybody till the

issue of succession is decided. The aforesaid deposition has

disclosed further revelations that the Bank after legal opinion

decided that Law of Primogeniture as claimed was applicable

and started paying the said amount to Rajkumari Amrit Kaur and

the said decision of the High Court of Justice, Chancery

Division, London was not assailed in any hierarchy of the

Courts. In view of aforesaid, it has to be taken that Ordinance

XVI of 2005 BK, does not repeal The Raja of Faridkot's Estate

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Act, 1948. Rajkumari Amrit Kaur being the eldest legitimate

descendant and nearest agnate of late Raja, alone succeeds to

the estate of her late father in terms of Section 4(3) of The Raja

of Faridkot's Estate Act, 1948.

(xxii) Recent pronouncement of the judgment by the

Hon'ble Apex Court dated 31.07.2019 in "Talat Fatima Hasan

through her constituted attorney Sh. Syed Mehdi Hasan vs.

Nawab Syed Murtaza Ali Khan (D) by LRs & Ors. (2019) 10

Scale (known as Rampur's case) would show that succession to

estate of former ruler of Rampur State will devolve according to

personal law applicable and not by custom of primogeniture.

Reference to State of Uttrakhand vs Kumaon Stone Crusher

(2017) JT 164 would show that the law which has been

continued in force by virtue of Article 372 of the Constitution of

India is to continue until altered, repealed or amended by the

competent legislature. There is a presumption against a repeal

by implication. When a law does not provide repealing provision,

it gives out an intention not to repeal the existing law. Therefore,

Article 372 of the Constitution of India, saves The Raja of

Faridkot's Estate Act, 1948 and Section 5(ii) of the Hindu

Succession Act protects it and ensures its application in the

instant case. Rajkumari Amrit Kaur alone succeeds to the entire

estate of Raja in view of Talat Fatima Hasan's case (supra).

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Earlier High Court of Allahabad in the aforesaid Talat Fatima

Hasan's case (supra) i.e. (2002) AIR (Allahabad) 119, held that

primogeniture will be applicable to the Estate of Ex.Ruler of

Rampur and personal law will not be applicable. The said

judgment of the Allahabad High Court has been over ruled by

the Hon'ble Apex Court in the aforecited case. Para No.12 of the

said judgment is to the following effect:-

"12. The only issue to be decided is whether the properties held by Nawab Raza Ali Khan would devolve on his eldest son by applying the rule of primogeniture or would be governed by Muslim Personal Law (Sheriat) Application Act, 1937 and devolve on all his legal heirs."

[xxiii]. In the aforecited case, the Hon'ble Apex Court has

held that the custom of primogeniture is not applicable to the

estate of former ruler of Rampur since there is valid enacted law

and is in force i.e. Muslim Personal Law (Sheriat) Application

Act, 1937 and the properties will devolve according to that law

and not by custom of primogeniture. Personal law shall prevail

in the matter of succession to personal/private properties of

Ex.Ruler of Rampur. On the basis of aforesaid, it can be

appreciated that there is a valid enacted law i.e. The Raja of

Faridkot's Estate Act, 1948, which is also protected in terms of

Section 5(ii) of the Hindu Succession Act 1956 and the

properties of Raja shall devolve as per provisions of the Act.

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The Estate of Raja would include personal and private

properties as per list of the properties submitted to and

approved by Government of India in view of the Covenant and,

therefore, these personal and private properties of Raja are not

attached to Gaddi as held by the Constitution Bench of the

Hon'ble Apex Court in 'Dholpur case' i.e. Kunwar Shri Vir

Rajendra Singh vs. Union of India & Ors., (1970) AIR SC

1946. Para Nos.40 and 42 of the judgment reads as under:-

"40. ..........We have, therefore, no hesitation in holding that on the death of ruler, Nawab Raza Ali Khan in the year 1966, succession to his private properties was governed by personal laws.

42. .........However, one thing which is clear is that the rulers enjoyed right to privy purses, private properties and privileges only because of the Constitution and in other respects they were ordinary citizens. It was urged that since the rights were guaranteed under the Constitution, the rule of primogeniture would apply. We find no force in this contention because, as already discussed above, in Article 362 reference is made only to the personal rights, privileges and dignities of the ruler of an Indian State and, in our view, rights would not include succession to personal properties."

(xxiv). The personal law in case of Muslims is Muslim

Personal Law (Sheriat) Application Act, 1937 and in case of

Hindu, it is Hindu Succession Act, 1956. As per Section 5(ii) of

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the Act, there is an exception to the properties of former Rulers

of Indian States and, therefore, The Raja of Faridkot's Estate

Act, 1948 is attracted which is a valid law enacted by the Raja

on 18.08.1948, exercising his sovereign powers as he was

sovereign until 20.08.1948. Ordinance was valid for six months

only and the repeal by way of Ordinance by the Rajpramukh

was not valid as the same was not within the powers of

Rajpramukh. After Constitution of India came into force on

26.01.1950, The Raja of Faridkot's Estate Act, 1948 was saved

by Article 372 of the Constitution of India and is still in force. The

repeal by implication is not attracted to the aforesaid Act and the

ratio of State of Uttrakhand vs. Kumaon Stone Crushers

(2017) 11 JT 164 would be attracted. The law which has been

continued in force by virtue of Article 372 of the Constitution of

India is to continue until altered, repealed or amended by

competent legislature.

(xxv). There is a presumption against a repeal by

implication, and the reason for this rule is based on the theory

that the legislature while enacting a law has complete

knowledge of the existing laws on the same subject-matter, and

therefore, when it does not provide a repealing provision, it

gives out an intention not to repeal the existing legislature.

When the new Act contains a repealing section, mentioning the

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Act which is expressly repealed, the presumption against

implied repeal and other laws is further strengthened on the

principle of 'expressio unius est exclusio alterious'.

Undoubtedly the legislature can exercise the power of repeal by

implication. It is equally well settled principle of law that there is

a presumption against implied repeal. For implying a repeal, the

next thing to be considered is whether the two statutes relate to

the same subject matter and have the same purpose. The

repugnancy between two statutes can be ascertained on the

basis of established principles of law i.e.

(a) Whether there is a direct conflict between the two provisions;

(b) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State legislature; and

(c) Whether the law made by the Parliament and the law made by the State Legislature occupy the same field.

(xxvi). In view of above, it is contended that Section 4(3) of

The Raja of Faridkot's Estate Act, 1948 has not been repealed

by any necessary implication and Rajkumari Amrit Kaur alone

succeeds to the entire estate of Raja being the eldest legitimate

descendant and nearest agnate and The Raja of Faridkot's

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Estate Act, 1948 will prevail over custom of primogeniture.

(xxvii). In H.H. Mehr Taj Nawab Sultan, Bhopal vs. State

of M.P. and others (1977) Jab. LJ 337 and Commissioner of

Income Tax vs. Princess Usha Trust, (1985) 156 ITR 650

(MP) females were recognized as rulers under Article 366(22)

of the Constitution of India. If The Raja of Faridkot's Estate Act,

1948 was repealed by Section 3(1) of the Ordinance XVI 2005

BK, then how did custom survive. Brother of Raja will only

succeed when Raja's line of inheritance fails and the nephew

will only succeed when childless Raja adopts him and he

succeeds in the capacity of his son and not as nephew.

Brother's family has never succeeded and general observation

regarding primogeniture has no place as against the Statute

which was never repleaded. Raja was sovereign until

20.08.1948 and by the enactment of The Raja of Faridkot's

Estate Act, 1948 on 18.08.1948, two days prior to surrendering

his sovereignty on 20.08.1948, consequently the custom

relating to primogeniture came to an end and customs were

abrogated. Customary primogeniture was finished and

thereafter it has to be survived as per the enactment of The

Raja of Faridkot's Estate Act, 1948.

[38]. Per contra, Mr. Vivek Bhandari, learned counsel for

the appellant-Bharat Inder Singh through his LR Kanwar

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Amarinder Singh Brar in RSA No.2176 of 2018 submitted on the

issue of validity of The Raja of Faridkot's Estate Act, 1948. He

argued on the issue of validity of Law of Primogeniture as the

same is also overlapping with the issue of validity of The Raja of

Faridkot's Estate Act, 1948. Learned counsel submitted as

under:-

(i). Admittedly the property in dispute belongs to the

former Ruler of Faridkot i.e deceased Raja Harinder Singh, who

was a signatory to the Covenant with the Government of India

and the properties in dispute are the same which were retained

by him under the terms of Covenant entered into with the

Government of India. Hindu Succession Act does not apply to

the property of former Rulers in view of Section 5(ii) of the Hindu

Succession Act. There is a bar on application of the Hindu

Succession Act, 1956 to the properties of former Rulers, who

had entered into the Covenant with the Government of India.

Male primogeniture has to be presumed and to be applied to the

properties of former Rulers, who is signatory to the Covenant.

Admittedly, on 05.05.1948, the Covenant was signed. Eight

Princely States had merged to form a Union known as PEPSU.

On 18.08.1948, Notification of The Raja of Faridkot's Estate Act,

1948 came to be issued. 20.08.1948 was the last date of

making over the administration of Faridkot Estate as per Article

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VI of the Covenant. 20.08.1948 was the date of issue of PEPSU

General Provision (Administration and Ordinance) 2005 BK.

20.09.1948 was the last date for submitting inventory of all the

immovable properties, securities, cash balances held by the

Raja as per Article XII. That was only after accession to India.

PEPSU General Provisions (Administration and Ordinance)

2005 BK was issued by the Rajpramukh repealing all laws of

States and enforcing laws of Patiala w.e.f. 20.08.1948.

Rajpramukh was appointed by seven States and the Covenant

in question signed by seven States was with the Government of

India.

(ii). Case titled Pratap Singh vs. Sarojini Devi, 1994

SCC 734 known as 'Nabha Royal Family's case' dealt with

impartibility and primogeniture in relation to jamidari of estates

and other impartible estates are to be established by custom,

but in case of sovereign rulers, they are presumed to exist

under Article 372 of the Constitution of India. Primogeniture is a

law which has been continued after coming into force of

Constitution of India. The same view as taken in Tikka Satrujit

Singh and others vs. Brig. Sukhjit Singh and anr. (2011) 1

ILR (Delhi) 704, Privy Council in Rao Kishore Singh vs.

Mussamat Gahenbhai, AIR 1919 PC 1000, Allahabad High

Court in Royal Family case of Talat Fatima Hasan's case

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(supra); Gujarat High Court in Royal family of Kucth i.e. Yuvraj

Prithivisinhji vs. Brijraj Kumari Saheba of Kutch, 2010 SCC

Online Gujarat 7447.

(iii). The genealogical table published in the official

gazetteer, a public document, clearly shows existence of

primogeniture. There are specific instances in case of Faridkot

Royal family, where in the event of failure of direct male line,

Gaddi and properties were inherited by brother or brother's son.

The factum of existence of primogeniture has been admitted by

Deepinder Kaur as well as Rajkumari Amit Kaur in their oral

evidence (testimonies).

(iv). Section 5(ii) of the Hindu Succession Act exempts the

property owned by a former Ruler of Indian State, who has

signed the Covenant with the Government of India from its

operation and, therefore, the properties in question cannot be

made subject matter of succession under the Hindu Succession

Act. For the applicability of Rule of Primogeniture, the claimant

need not be the eldest son of the Ruler.

(v). Para nos.93, 94, 95, 98 and 99 of the judgment

passed by the lower Appellate Court, would show that the Court

has confused the issue on conjectures and surmises. Reports

on the administration of the Punjab and its dependencies for the

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years 1870-71, 1881-82 and 1900-1901 are public documents

admissible in law. From the aforesaid public documents i.e.

extract of Punjab State gazetteer, genealogical/pedigree table

and report of administration of Punjab and its dependencies,

existence of primogeniture has to be presumed in case of

royal/properties of former ruler, who is signatory to the

Covenant.

(vi). It is the duty of the Court to rely upon gazetteer and

administration report in view of Mahant Shri Srinivasa

Ramanuj Das vs. Surajnarayan Dass & anr. , AIR 1967 SC

256; Thakor Shri Sher Singhji's case i.e. C.A. No.160 of

1965 and Union of India vs. Nihar Kanta Sen & Ors., 1987(3)

SCC 465. In Rao Kishore Singh's case (supra) primogeniture

was claimed by second cousin. A decision was rendered by the

District Judge holding that primogeniture prevails and women

are excluded. It was held that head of the family cannot destroy

the custom. The decision of the District Judge qua

primogeniture was upheld. The Court of the District Judge was

the first Court and succession opened on 06.10.1906 in the said

case.

(vii). In Nabha's case i.e. His Highness Maharaja Pratap

Singh's case (supra), Maharaja Ripudaman Singh was ruling

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chief of Nabha State in early Twenties. Ruling powers were

withdrawn by the British Government in the year 1923.

Thereafter, he was deposed from the Gaddi in 1928 and was

exiled to Kodaikanal in Tamil Nadu. He remained there till 1942

when he died. He left behind his wife Sarojini Devi, three sons

namely Pratap Singh, Kharagh Singh and Gurbaksh Singh and

two daughters Kamla Devi and Vimla Devi. Sarojini Devi wife of

Ripudaman Singh and her children were residing in England

from 1934 to 1944. She came to India when Pratap Singh was

to receive administrative training as he was to become the ruler

of the Nabha State by the applicability of rule of primogeniture.

The family came back to India in the year 1945. Gurbaksh Singh

the third son of Ripudaman Singh died in November, 1963. He

left behind his widow Chander Prabha Kumari and two minor

daughters Krishana Kumari and Tuhina Kumari and minor son

Vivek Singh. The property i.e. Sterling Castle in Shimla was

owned by Col. S. Appaji Rao Sitole of Gwalior. In view of

restriction relating to acquisition of property imposed by the

British Government, Ripudaman Singh purchased this property

in the name of his friend Dr. Tehal Singh. The sale deed was

executed on 21.12.1921. Dr. Tehl Singh executed a

relinquishment deed on 30.04.1952, relinquishing his title in

favour of three sons and widow of late Ripudaman Singh. In the

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year 1957, dispute arose between the parties. Pratap Singh

claimed absolute right over this property, thereby denying the

title of other heirs of Ripudaman Singh. In March, 1961, the two

younger brothers sought leave from the Central Government

under Section 86 read with 87(b) of Code of Civil Procedure to

file a suit against Pratap Singh. The leave was refused in July

1961. On 30.01.1962, Pratap Singh sold this property in favour

of "The Save the Children Fund" a Society incorporated in the

United Kingdom for a sum of Rs.50,000/-. Sarojini Devi,

Kharagh Singh and minor children of Gurbaksh Singh filed a suit

for partition and in the alternative for joint possession and also

for recovery of mesne profits. It was averred that they had a

share in the Sterling Castle, Shimla, as the heirs of late

Ripudaman Singh. Though the property was ostensibly stood in

the name of Dr. Tehl Singh, but Ripudaman Singh was the real

owner of the property and the sale consideration was paid by

him. Therefore, Pratap Singh had no right to sell the property in

favour of defendants i.e. "The Save the Children Fund" and its

Administrator. The plaintiffs in the suit claimed that sale was not

binding upon their rights. During pendency of the suit, original

defendants No.1 and 2 further sold the property in favour of

defendants No.4 to 8 vide sale deed dated 01.05.1970.

Originally the suit was filed in Shimla. After merger of the area in

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Himachal Pradesh, the original jurisdiction came to be exercised

by the Delhi High Court. On the formation of Himachal Pradesh

High Court, Civil Suit No.14 of 1968 was transferred to the

original side of that Court.

(viii). In the aforesaid cited case defendants contested the

suit on number of grounds including the ground that from the

year 1942 onwards Pratap Singh became absolute owner of the

property in question. Learned Single Judge came to the

conclusion that the property was purchased benami by

Ripudaman Singh. After his death, the property devolved on the

entire joint family. The rule of primogeniture would not be

applicable to his personal property, since it applied only to the

property of the State. Merely because Ripudaman Singh was

declared as Ruler of Nabha State, he could not become the

owner of this property. Preliminary decree for partition and

recovery of mesne profits was granted in favour of the plaintiffs

and the 3rd defendant. RFA No.22 of 1973 was filed. The

Division Bench reversed the judgment of the learned Single

Judge and held that the plaintiff had failed to establish that the

property i.e. Sterling Castle was purchased benami in the name

of Dr. Tehl Singh, out of personal funds of Ripudaman Singh.

The suit was dismissed by accepting the appeal.

(ix). In the aforecited case, Civil Appeal No.5857 of 1983

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was filed out of judgment of Delhi High Court in RFA(OS) No.6

of 1977 dated 23.05.1980. Pratap Sigh filed Civil Suit No.394 of

1966 for possession of House No.394, Alipur Road, Civil Lines,

Delhi. The defendants were mother Sarojini Devi, two brothers

and two sisters. One of the brother namely Gurbaksh Singh had

died and his legal representatives were brought on record. The

suit property came to be purchased in the year 1922 by

Ripudaman Singh in the name of one Gurnarain Singh Gill. The

vendor was one Sh. Ram Popli. The sale deed was executed on

08.04.1922 for a sum of Rs.1,25,000/-. The property was

managed by officials of Nabha State. In 1937, Gurnarain Singh

Gill executed a release deed in favour of Nabha State. The

property was treated to be of Nabha State even after Pratap

Singh ascended the Gaddi. On 05.05.1948, Covenant was

entered between Central Government and the Princely States

and they merged to form a Union known as Patiala and East

Punjab States Union (PEPSU). In the inventory prepared under

Article XII, the house in question was included and on that basis

it was urged by the plaintiff that the property was his private

property and he was exclusive owner of the same. On that

basis, suit for possession came to be filed by Pratap Singh. The

defendants contested the claim and contended that it was a

private property of Ripudaman Singh. The Covenant had

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recognized this position and it did not create a new right. The

intention of the Covenant was to receive claims and after

scrutiny put the controversy at rest, if there was anything

between Ruler and the Government of the States Union once

and for all times to come.

(x). Learned Single Judge came to the conclusion that

the property was the property of Nabha State. It was not a

personal property of Ripudaman Singh and held that

Ripudaman Singh could hold the property in his personal

capacity. After 04.05.1949, the property changed and on that

basis the suit came to be decreed. In RFA (OS) No.6 of 1977,

the Division Bench held that the Covenant dated 05.05.1948 did

not create any new right. It only declared the pre-existing rights.

The claim of Pratap Singh as private property was not

established. The ownership of the property continued

unchanged even after Pratap Singh ascended the Gaddi. It was

concluded that the property was personal property of

Ripudaman Singh and after his death it devolved upon Pratap

Singh and his brothers. Sarojini Devi being the widow got her

right under Hindu Women Right to Property Act 1937 as

Ripudaman Singh had died in the year 1942. Appeal was

allowed. The suit was dismissed. Civil Appeal No.5857 of 1983

came to be filed against the decision of the Division Bench. In

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this manner, two Civil Appeal Nos.1208 of 1990 and 5857 of

1983 came to be considered by the Hon'ble Apex Court.

(xi). The effect of Article 363 of the Constitution of India

was considered. The Hon'ble Apex Court after considering

Revathinnal Balagopala Varma vs. His Highness Sri

Padmanabha Dass Bala Rama Verma, 1993 Suppl. (1) SCC

233 (Trivoncore's case) held that the rule of primogeniture only

prevails in the family of ruling chief or jagirdars, whose

ancestors were ruling chiefs. Impartability and primogeniture in

relation to zamidari estates or other impartible estates are to be

established by custom, whereas in case of sovereign ruler, they

are presumed to exist. Distinction between public and private

property was held to be not correct. Even private property can

be pooled in the State for applying the rule of primogeniture.

The question whether primogeniture lapsed in the year 1947-48

was also considered. Respondents therein contended that

Pratap Singh had ceased to be governed by primogeniture on

15.08.1947 and in any case, on 20.08.1948 when he ceased to

be a sovereign. The question whether in case the Estate is

impartible in nature, it would continue to be governed by the rule

of primogeniture or not, was answered and it was held that rule

of primogeniture would continue even after 1947-48 under

Article 372 of the Constitution of India. The law of succession

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relating to primogeniture continues until it is repealed. This is

the position of law relating to succession. It was held that the

recognition by the sovereign parties to the Covenant that the

suit property is a private property of Pratap Singh would amount

to an act of State and law of succession relating to

primogeniture continues till date under Article 372 of the

Constitution of India.

(xii). In Tikka Satrujit Singh and others vs. Brig. Sukhjit

Singh and anr. (2011) 1 ILR (Delhi) 704, popularly known as

'Kapurthala's case', it was held that law which applies to the

former rulers was different than the law applied to the non-

sovereign States. The distinction drawn in Nabha's case i.e.

Pratap Singh's case (supra) was relied and it was reiterated

that primogeniture would be presumed in case of ruler, whereas

in case of zamindari, it would not be presumed, but will have to

be proved as a custom. The ruler/sovereign would be the

absolute owner of the State and its properties. None else would

have any interest or share in his property. He would have to be

signatory to a Covenant/agreement ceding his State on

15.08.1947 to the dominion of India on three subjects external

affairs, communication and defence. Thereafter by the

Covenant/merger agreement ceding the administration of his

State to the Union prior to 26.01.1950. After 26.01.1950, he

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would be recognized as a ruler of former Indian State by the

President of India under Article 366 of the Constitution. He

would be receiving an annual privy purse for the amount fixed

by the Ministry of States. On his death, succession to his

estate/properties would be covered by the first part of the

exception under Section 5(ii) of the Hindu Succession Act, and

therefore, not affected by 1956 Act. If he dies after 17.06.1956,

it would make no difference to the succession which will still be

by primogeniture. He would be de-recognized as a ruler by the

26th Amendment. In case of Zamindari, if he dies after

17.06.1956 succession to his estate would not be by

primogeniture. It will be as per Section 8 of the Hindu

Succession Act.

(xiii) In Yuvraj Prithvisinhji vs. Brijraj Kumari Sahiba of

Kutch, 2010 SCC Online Gujarat 7447 the issue was whether

the family custom of inheritance of Raja and incidentally of all

properties devolving on a single member of the family to the

exclusion of other members of the family is ancient, settled,

consistently followed without being challenged from time

immemorial as alleged in the written statement by the

defendants. The trial Court came to the conclusion that a rule of

primogeniture was a custom in Kutch. As per family custom and

succession or inheritance, it was on the demise of the ruler, his

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eldest son succeeded to the Gaddi i.e. defendant No.1. All the

properties were in his possession and enjoyment and whatever

property devolved in the succeeding person i.e. defendant No.1

was not subject to any liability for maintenance of any members

of the royal family and this family custom of inheritance was

observed as a matter of right since the time immemorial. It

continued to be followed and observed without violation by the

royal family. It was also held by the trial Court that primogeniture

existed. The Court while noticing the fact that on 05.04.1948,

the original defendant No.1 entered a Kutch merger agreement

with dominion Government and applicability of Section 5(ii) of

the Hindu Succession Act, 1956 and non-applicability of

judgments under Income Tax Act held that the property

remained impartible even after Hindu Succession Act and after

the 26th Amendment in 1971. The rule of primogeniture

continued even after 1947-48. Under Article 372, the law of

succession relating to primogeniture continues until it is

repealed. The judgment of the trial Court was upheld.

(xiv) In Col. H.H. Sir. Harinder Singh vs. Commissioner

of Income Tax, Punjab and Haryana, Jammu And Kashmir

and Himachal Pradesh, 1972(4) SCC 536, Col. H. Harinder

Singh himself admitted primogeniture in an appeal before the

Hon'ble Apex Court. The controversy involved in the aforesaid

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case was in respect of the assessment which was done in

respect of status of Raja to be an individual for the assessment

years 1957-58 to 1960-1961, corresponding to the accounting

year being the period ending April 12, 1957, April 12, 1958, April

12, 1959 and April 12, 1960 respectively. The assignee had

executed a registered trust deed dated 01.04.1955, whereunder

he has transferred the United Kingdom Government's

Securities of the face value of 1,80,000/- pounds to the

Grindlays Bank, London as trustee to be held in trust in

accordance with the terms and conditions set down therein.

According to the clause in the trust deed, the trustee was

directed to divide the trust property into two equal parties after

meeting all outstanding and contingent liabilities. The balance

was to be paid to the children of the settler, living at the

respective dates of payment in equal shares. Similarly under

clause (4), the trustee after meeting all outstanding and

contingent liabilities, was directed to pay balance income to the

eldest son of the settler Tikka Harmohinder Singh of Faridkot,

during his life. Clause 3(b) and 4(c) of the said Trust deed dated

01.04.1995 provided that at the termination of the period of

distribution, the Bank shall stand possessed of the capital and

income of both parts upon trust from the person who, at the date

of said termination, shall be the successor of the settler

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according to rule of primogeniture applicable to the dynasty of

the settler absolutely.

(xv). The oral evidence viz. statement of Maharani

Deepinder Kaur, Chairperson of Maharwal Khewaji Trust,

wherein she admitted that according to the precedent among

the royal family members of Brar Sikh of Faridkot State only

eldest male member used to become ruler after the demise of

previous ruler. She volunteered that females were not allowed to

succeed in the royal family. Primogeniture was admitted and if

rulership was in existence then Kanwar Manjit Inder Singh might

have succeeded Raja Harinder Singh after his demise. Similarly,

according to oral evidence of Rajkumari Amrit Kaur, the Rule of

Primogeniture is admitted and Bharat Inder Singh is the sole

surviving male descendant from the line of Maharaja Brijinder

Singh, Bans Bahadur of Faridkot State.

(xvi) Article II of the Covenant entered into by the rulers of

seven Princely States forming PEPSU, would show that the

covenanting States agreed to unite and integrate their territories

in one State with a common executive, legislature and judiciary

by the name of 'PEPSU'. The council of Rulers was to elect

Rajpramukh and Up-Rajpramukh under Article III(3) of the

Covenant. Under Article VI(1) of the Covenant, the Ruler of

each covenanting State shall make over the administration of

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his State to the Rajpramukh upto 20.08.1948 and thereafter all

rights authorities and jurisdiction belonging to the Ruler shall

vest in PEPSU and shall be exercised as provided by the

Covenant. All duties and obligations of the Rulers pertaining or

incidental to the Government of covenanting State shall devolve

on the Union and shall be discharged by the Union and all the

assets and liabilities of the covenanting State shall be the

assets and liabilities of the Union. The military forces of the

covenanting State shall also became military forces of the

Union. Under Article VIII of the Covenant, instrument of

accession was to be executed and signed by the Rajpramukh

upto 30.08.1948 on behalf of the Union in accordance with the

provision of Section 6 of the Government of India Act, 1935.

Under Article IX of the Covenant, executive authority of the

PEPSU Union was to be exercised by the Rajpramukh. Under

Article X of the Covenant, Rajpramukh was authorized to make

and promulgate ordinances for the peace and good governance

of the Union until a legislature elected in accordance with the

terms of the Constitution framed by it comes into being, the

constituent Assembly as contained in the manner indicated in

Schedule II shall function as the interim legislature of the Union.

The ordinance so made was valid for six months from its

promulgation and had the like force of law as an Act passed by

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the Constituent Assembly, but any such ordinance may be

controlled or superseded by any such Act.

(xvii). Under Article XII(2) of the Covenant, list of private

properties was to be furnished to the Rajpramukh before

20.09.1948. The Ruler was to furnish inventory of all immovable

properties, securities and cash balances held by him as such

private property. According to Article XII(3), if any dispute arises

as to whether any item of property is the private property of the

Ruler or State property, it shall be referred to such person as

the Government of India nominate in consultation with the

Rajpramukh and the decision of such person shall be final and

binding on all the parties concerned. Provided that no such

dispute shall be so referable after 31.12.1948. Under Article XIII

of the Covenant, the Ruler of each covenanting State as also

the members of his family were entitled to personal privileges,

dignities and title enjoyed by them, whether within or outside the

territories of the State immediately before 15.08.1947. Under

Article XIV the succession according to law and custom to

Gaddi of each covenanting State and to the personal rights,

privileges, dignities and titles of Ruler thereof was guaranteed.

Every question of disputed succession in regard to a

covenanting State which arose after inauguration of the Union

was to be decided by the Council of Rulers, after referring the

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same to a Bench of consisting of all the available Judges of the

High Court of the Union and in accordance with the opinion

given by such Bench.

(xviii). The PEPSU General Provisions (Administration

Ordinances) i.e. Ordinance (1 of 2005 BK) was promulgated by

Rajpramukh in exercise of his powers under Article X of

Covenant on 20.08.1948. According to Section 3(1) of the

aforesaid Ordinance the laws applicable in State of Patiala were

made applicable mutatis mutandis and the law of all other

covenanting State ceased to have any effect.

(xix) The Preamble of The Raja of Faridkot's Estate Act,

1948 would show that the preamble clearly says to preserve and

enforce the rule of descent to one single male heir in the matter

of succession to the said estate and to provide for other matters

connected therewith. The declaration was in regard to the

impartibility of the Personal Estate of Raja. Under Section 2(3)

of The Raja of Faridkot's Estate Act, 1948, the holder of the

Raja of Faridkot Estate shall mean His Highness Col. Raja

Harinder Singh Brar Bans Bahadur and after his death shall

mean Tikka Harmohinder Singh Bahadur and shall include

through heirs male lawfully begotten on whom the Estate shall

devolve according to rule of descent provided by the Act.

According to Section 5 of the aforesaid Act, the daughters and

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holder of the Estate were only entitled to maintenance until

marriage and thus a female cannot be a holder of the estate.

(xx). In Dalmiya Dadri Cement Limited vs.

Commissioner of Income Tax, AIR 1958 SC 816, Section 3 of

PEPSU Ordinance was considered and it was held that the

Covenant was an Act of State. The Court also opined that after

the formation of the new State on 20.08.1948, the first

legislative Act of the sovereign was the promulgation of

Ordinance No.I of Samvat 2005 and Section 4 thereof expressly

recognizes the rights of the permanent members of Public

Services. That undoubtedly is a law enacted by the sovereign,

conferring rights of his subjects and enforceable in a Court of

law, but at the same time the enactment of such a law serves to

emphasize that the Articles have not in themselves the force of

law and were not intended to create or recognize rights. In this

connection, reference should also be made to Clause 16 of the

Ordinance which enacts that the provision of Articles XV and

XVII of the Covenant relating to the bar of certain suits and

proceedings shall have the force of law. In view above,

Ordinance No.I of Samvat 2005 was held to be a legislative Act.

It was also held that the Covenant is in whole or parts an act of

State, that Article VI therein does not operate to confer any

rights on the subjects of the covenanting States as against the

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sovereign of the new State constituted thereunder and that

Ordinance No.1 of Samvat 2005 is, in consequence, not open to

attack as being a violation of Article VI. Ultimately, in view of

effect of Section 3 of the Ordinance, Patiala laws were applied

and it was held that Jind laws had ceased to have any effect.

(xxi). In Laxman Dass vs. State of Punjab, AIR 1963 SC

222, it was held that all legislative powers stood transferred to

Rajpramukh after 20.08.1948 without any fetters. The

contention that the Covenant does not dispose of the entirety of

the legislative power possessed by the Rulers, because under

Article X, the Rajpramukh could enact laws only for a period of

six months and the legislative powers not having been

completely transferred to him and, therefore, residue must vest

somewhere and that could only be in the Rulers themselves.

This contention was repelled that the Rulers of the covenanting

States could, subsequent to 20.08.1948, have passed any laws

within their own territories on the ground that powers of

Rajpramukh did not extend under Article X, to enact legislation

beyond six months. It is further to be noted that under Article VI,

all powers of the Rulers are to vest in the Union, and even if the

whole of the legislative power is not exercisable by the

Rajpramukh by reason of Article X, it is in the Union that the

residue of the power must be held to be lodged and not with the

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Rulers.

(xxii). In State of Haryana vs. Amarnath Bansal, (1977)10

SCC 700, the effect of Section 3 of the Ordinance was

discussed and it was held that the Covenant is an Act of State

and the laws in force in Patiala State were made applicable to

the entire PEPSU union. Para No.13 of the judgment reads as

under:-

"13. In the instant case, there was no such declaration by the PEPSU Government recognising the duties and obligations of the rulers of Jind State under the laws of the Jind State. Nor was there a law similar to Ordinance No. 1 of 1948 of Saurashtra continuing the laws of the Jind State. On the other hand, there was Ordinance No. 1 of S. 2005 followed by the Ordinance No. 16 of S. 2005 whereby the laws of the covenanting States were repealed and the laws of Patiala State were made applicable in the entire territory of PEPSU. Can it be said that in spite of the said ordinances the Jind Service Regulations of 1945 which prescribed 62 years as the age of superannuation was a law in force in PEPSU on the date of commencement of the Constitution and by virtue of Article 372 of the Constitution the said Regulations continued in the Part B State of PEPSU after the coming into fore of the Constitution and in the reorganised State of Punjab under the States Re-organisation Act, 1956 and in the State of Haryana under the Punjab Re-organisation Act, 1966. In our opinion, this question must be answered in the negative. As noticed earlier the Raj Pramukh of

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PEPSU look over the administration of Jind State on August 20, 1948 and on the same date he promulgated Ordinance No. 1 of S. 2005 and by section 3 of the said ordinance all laws, ordinances, acts, rules, regulations, notifications, Hidayate, Shahi-farman having force of law in Patiala State on the date of commencement of the said Ordinance were made applicable mutatis mutandis to the territories of all the covenanting States (including Jind State) and with effect from that date all laws of such covenanting States immediately before that date would stand repealed. Ordinance No. 1 of S. 2005 was followed by Ordinance No. 16 of S. 2005 which contained a similar provision. As a result of the said ordinances the Jind State Civil Service Regulations of 1945 stood repealed on August 20, 1948 and the relevant law as applicable in the State of Patiala became applicable in the entire area of PEPSU, including the Jind State, and the terms and conditions of the respondent were, therefore, governed by the provisions contained in the law that was applicable in Patiala State and he could not claim any right on the basis of the Jind State Civil Service Regulations 1945."

(xxiii). The provision of Section 3 of Ordinance No.1

(Samvat 2005) and Section 3(1) of Ordinance XVI

(Samvat/2005 BK) have the effect of excluding applicability of

laws of other covenanting States in the territory of PEPSU and

the laws of covenanting States were repealed absolutely and

laws of Patiala State were applicable in entirety in the territory of

PEPSU. Repeal of law of other covenanting States by

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Ordinance No.1 and XVI of BK 2005 was intended to for all

times. Expiration of said ordinance would not mean that the

effect of said ordinance regarding non-applicability of laws of

other covenanting States in the territory of PEPSU was nullified

on the expiration of Ordinance No.XVI (Samvat/2005 BK). Para

19 of the judgment in State of Haryana vs. Amarnath

Bansal's case (supra) reads as under:-

"19. If the provisions of Section 3 of Ordinance No. 1 of S. 2005 and Section 3(1) of Ordinance No. 16 of S. 2005 are construed in the light of the principles laid down by this Court in Bhupendra Kumar Bose (supra), it must be held that the object underlying said provisions was to exclude the applicability of the laws of other covenanting States in the territory of PEPSU by repealing them absolutely and to apply the laws applicable in Patiala State in the entire territory of PEPSU. Since the repeal of the laws of other Covenanting States by Ordinances Nos. 1 and 16 of S. 2005 was intended to be for all time, the expiration of the said Ordinances would not mean that the effect of the said Ordinances regarding on-applicability of the laws of other convenanting States in the territory of PEPSU was nullified on the expiration of Ordinance No. 16 of S. 2005. In view of the express terms used in the said Ordinances it must be held that Jind State Civil Service Regulations 1945 stood repealed absolutely and ceased to have any application after the Raj Pramukh of PEPSU took over the administration of Jind State on 20-08-1948."

(xxiv) In State of Punjab vs. Puran Chand Jindal, 2011

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SCC Online, Punjab and Haryana 16306, this High Court

considered the object of ordinance which was to exclude the

applicability of laws of other covenanting States in the territory of

PEPSU, by repealing them absolutely and to apply the laws

applicable in the Patiala State in the entire territory of PEPSU.

The effect of the ordinance was, therefore, not nullified on its

expiry.

(xxv). In K. Nagraj vs. State of Andhra Pradesh and

another (1985) 1 SCC 523, it was held that the power to issue

an ordinance is not an executive power, but is the power of the

executive to legislate. The power of the Governor to promulgate

an ordinance is contained in Article 213 which occurs in Chapter

IV of Part VI of the Constitution of India. The heading of that

Chaper is "Legislative Power of the Governor". This power is

plenary within its field like the power of the State Legislature to

pass laws and there are no limitation upon that power except

those to which legislative power of the State Legislature is

subject. Therefore, though an ordinance can be invalidated for

contravention of the constitutional limitations which exist upon

the power of the State Legislature to pass laws. It cannot be

declared invalid for the reason of non-application of mind, any

more than any other law can be. An executive act is liable to be

struck down on the ground of non-application of mind. Not the

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act of a Legislature.

(xxvi). Articles 291, 362, 366(22) of the Constitution of India

and Lok Sabha debates regarding 26th Amendment of the

Constitution of India and Rulers of Indian States (Abolition of

Privileges) Act 1972 would show that there was no intention to

interfere with the rule of primogeniture which was applicable to

the Rulers in the matter of succession. Section 5(ii) of the Hindu

Succession Act, 1956 has not been interfered with till date and

in view of precedents on the point, the same continues till date.

For ready reference Articles 291, 362 and 366(22) of the

Constitution of India are reproduced hereasunder:-

291. Privy purse sums of Rulers:-

(1) Where under any covenant or agreement enterered into by the Ruler, of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as privy purse-

(a) such sums shall be charged on, and paid out of, the Consolidated Fund of India; and

(b) the sums so paid to any Ruler shall be exempt from all taxes on income.

(2) Where the territories of any such Indian State

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as aforesaid are comprised within a State specified in Part A or Part B of the First Schedule, there shall be charged on, and paid out of, the Consolidated Fund of that State such contribution, if any, in respect of payments made by the Government of India under clause (1) and for such period as may be subject to any agreement entered into in that behalf under clause (1) of Article 278, be determined by order of the President.

362. Rights and privileges of Rulers of Indian States:- In the exercisse of power of Parliament or of the Legistature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in *[ * * *] Article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State."

"366(22). "Ruler" means the Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such Ruler;].

(xxvii). The Constitution (26th Amendment Act) 1971 has

nothing to do with the personal properties. Only privy purse and

privileges were omitted. Section 5(ii) of the Hindu Succession

Act 1956 has not been abolished. Thereafter the Rulers of

Indian States (Abolition of Privileges) Act 1972 came to be

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passed and in the said Act also Section 5(ii) of the Hindu

Succession Act was not amended, nor rule of primogeniture

was abolished. In Commissioner of Gift Tax vs. Maharaja

Amarinder Singh (2004) 191 CTR PH 358 it was observed that

though Patiala State, after it was carved out by its original Ruler,

was governed by a Ruling Chief, yet such a Chief's succession

was on the basis of rule of primogeniture (male) and after

succession on the Gaddi of the State, he had well-defined

responsibilities towards maintenance of Kanwars on scheduled

rates and other relatives.

(xxviii). Further the Rajya Sabha debates on Section 5(ii) of

the Hindu Succession Act, 1956 established that Section 5(ii) of

the Act was enacted specifically to preserve primogeniture in

the ruling family, who had signed the Covenant of merger. New

interpretation of Section 5(ii) of the Act cannot be accepted in

view of the precedents of the Hon'ble Apex Court i.e. Prakash

vs. Phulavati, (2016) 2 SCC 36; Director of Settlements, A.P.

& Ors., vs. M.R. Apparao & Anr., 2004 SCC 638;

Mamleshwar Prasad vs. Kanhaiya Lal (1975) SCC 232;

South Central Railway Employees Coop. Credit Society

Employees Union vs. B. Yashodabai (2015)2 SCC 727 and

Suganthi Suresh Kumar vs. Jagdeeshan, 2002(2) SCC 420.

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(xxix). The bar of Article 363 of the Constitution of India

cannot be applied in view of ratio of H.H. Maharajadhiraja

Madhav Rao Jiwaji Raoscindia Bahaur vs. Union of India,

1971(1) SCC 85, wherein it was concluded that Article 291 of

the Constitution of India is not a position relating to Covenants

and agreements, but a special provision for the source of

payment of privy purse by charging them on the consolidated

fund and for making the payment free of taxes on income. It

does not in its dominant purpose and theme answer the

description in the later part of Article 363 of the Constitution of

India. Article 362 of the Constitution of India is within the bar of

Article 363 because its dominant purpose is to get recognized

the Covenants and agreements with Rulers. However, insofar

as the same guarantees, find place in legislative measures, the

provisions of Article 362 of the Constitution of India need not to

be invoked and the dispute decided on the basis of those

statutes. Such a case may not attract Article 362 and

consequently the bar of Article 363 may not also apply. Article

366(22) of the Constitution of India is within the description so

long as the President in recognizing a Ruler or a successor is

effectuating the provisions of a Covenant or agreement. It may

apply when the description exercised is relatable to his powers

flowing from the covenants read with the article. However where

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the President acts wholly outside the provisions of Article

366(22) of the Constitution of India, his action can be

questioned because the bar applies to bona fide and legitimate

action and not to ultra vires actions. As per majority view, the

petitions were allowed and the order dated 06.09.1970 made by

the President was held to be illegal. Petitioners therein were

held entitled to all their pre-existing rights and privileges

including the right of privy purse.

(xxx). In Revathinnal Balagopala Varma vs.

Padmanabha Dasa Bala Verma, 1993 Supp(1) SCC 233,

'(Trivoncore's case)' the judgment was delivered after

considering various case laws on the subject. The cases

covered by Section 5(ii) of the Hindu Succession Act continued.

The effect of the provision is that the succession to impartible

estates other than those mentioned in clauses of Section 5(ii) of

the Act stands abrogated. The Court while dealing with the

issue in question adverted to the nature of extent of authority of

respondent No.1 therein over the properties in the suit in his

capacity as sovereign ruler of Travancore. The suit property

belonged to Tarwad and respondent No.1 was managing the

same as Karnavan (Karta). Respondent No.1 was not only a

Karnavan of Tarwad but also the sovereign ruler of Travancore.

The properties were impartible in order to maintain his estates.

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But after he ceased to be ruler of Travancore, these properties

even though were impartible earlier became partible according

to the submissions made by learned counsel. The reliance was

placed in this behalf to certain statutory provisions including the

Hindu Succession Act. The Court in that context relied upon

ratio of case laws viz. Baijnath Prasad Singh and Ors. vs. Tej

Bali Singh, AIR 1921 PC 62 and observed that it was

apparently not a case of sovereign ruler. Secondly the Court

placed reliance upon Shiba Prasad Singh vs. Rani Prayag

Kumari Debi and Ors., AIR 1932 PC 216. It was observed that

the case is not to be of sovereign ruler. Commissioner of

Income-tax, Punjab, North-West Frontier and Delhi

Provinces, Lahore vs. Dewan Bahadur Dewan Krishna

Kishore, Rais, Lahore AIR 1941 P.C. 120 was also not found

to be a case of sovereign ruler inasmuch as that such ruler

could not have been governed by Income Tax Act, 1922.

Similarly other case laws were also not found attracted and it

was held that so far as these decisions are concerned, apart

from the fact that in the said case, respondent No.1 was holding

properties as sovereign ruler and his right over the properties

will have to be considered in that background. What has been

held in the cited case laws may be of some assistance, if it is

found as a fact that family of the appellant and defendants

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therein was undivided Tarwad governed by Marumakkathayam

Law as modified by custom and usage in respect of succession/

inheritance and the suit properties belonged to his Tarwad and

respondent No.1 had been managing the same as its Karavan

(Karta). If it is found that these properties were personal

properties of respondent No.1 in the manner alleged by him,

then these decisions will be of no assistance. In the said context

the concept of Hindu Undivided Family was distinguished. In the

said case succession opened in the year 1991 and it was

observed that Section 5(ii) of the Hindu Succession Act does

not apply in case of sovereign ruler.

(xxxi). The Court proceeded to discuss the case laws on the

subject and observed that this being the law with regard to the

powers of a sovereign and legal status of the properties held by

him, then there can be no manner of doubt that till the

sovereignty the Maharaja of Travancore had ceased, he was

entitled to treat and use the properties under his sovereignty in

any manner he liked and his will in this regard was supreme. On

the principle that a sovereign never dies and succession to the

next ruler takes place without there being a hiatus, there could

be no change in the legal status of the properties held by one

ruler and his successor. As seen above, one incidence of

property held by a sovereign was that there was really no

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distinction between the public or State properties and on the

one hand and private properties of the sovereign on the other

hand. The other incidence was that no one could be co-owner

with the sovereign in the properties held by him. Respondent

No.1 was a sovereign and the properties in this dispute as held

by sovereign rulers from time to time were impartible. The said

fact has not been disputed before the Court. The mode of

succession of a sovereign ruler and the powers of such a ruler

are two different concepts. Mode of succession regulates the

process whereby one sovereign ruler is succeeded by other. It

may inter alia be governed by rule of general primogeniture or

lineal primogeniture or any other established rule governing

succession. This process ends with one sovereign succeeding

another. Thereafter what powers, privileges and prerogatives

are to be exercised by the sovereign is a question which is not

relatable to the process of succession, but relates to legal

incidents of sovereignty. If someone asserts that to a particular

property held by a sovereign the legal incidents of sovereignty

do not apply, it will have to be pleaded and established by him

because onus of such fact is always on the party, who asserts in

affirmative, because of presumption, onus shifts upon the

opposite party to prove that a primogeniture does not exits. No

precedents were cited before the Court to show that the

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personal properties of respondent No.1 would get transformed

into joint Hindu Family property, wherein the appellant in the

said case would acquire the interest. Apparently such properties

would on demise of respondent No.1 be governed by either of

testamentary depositions or would devolve upon his personal

heirs.

(xxxii). The ratio of Yuvraj Prithvisinhji's case (supra) has

already been dealt with in the preceding part of the judgment,

wherein it was observed that the properties declared by the

sovereign and accepted by the Government of India as his

private properties, would be his personal properties. In the said

case succession opened on 21.06.1981.

(xxxiii). The claim of appellant in RSA No.2176 of 2018 is

dependent upon Rule of Primogeniture. Originally the Ordinance

No.I (Samvat 2005) came into force on 20.08.1948 for six

months and the period ended on 20.02.1949. It was re-notified

as Ordinance No.XVI (Samvat/2005 BK) w.e.f. 15.02.1949 and

the period of six months ended on 15.03.1949. Again it was re-

notified by Ordinance No.XVIII (2006 BK) on 31.07.1949 and

the period of six months ended on 31.07.1950. In the meanwhile

Constitution of India came into force w.e.f. 26.01.1950 and in

this manner the ordinance never came to an end. The ordinance

remained in force from the date of promulgation till 26.01.1950,

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when the Constitution of India came into force and this

proposition has been noticed by the Court in Dalmiya Dadri

Cement Limited's case (supra).

(xxxiv). The ratio of precedents viz. State of Punjab and

others vs. Mahant Jatinder Dass Chela Mahant Narotam

Dass, Mahant, Mandir Dun, Patiala, 2015 SCC online, P&H

7648 (DB) and State of Haryana vs. Amarnath Bansal's case

(supra) would show that the PEPSU General Provisions

(Administration Ordinance) and its subsequent amendments

remained in force from the date of promulgation on 20.08.1948

till 26.01.1950, when the Constitution of India came into force

and as such the arguments of validity of ordinance for six

months alone does not survive.

(xxxv). The word 'single heir' appearing in Section 5(ii) of the

Hindu Succession Act is relatable to personal law and that is

Hindu Succession Act, but distinction of single heir will attract

primogeniture and it will exclude female and the rule continued

even after 1947-48. Under Article 372 of the Constitution of

India, the law of succession relating to primogeniture continues

till its repeal.

(xxxvi). Ratio of Talat Fatima Hasan's case (supra)

submitted has to be interpreted in favour of the appellant in RSA

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No.2176 of 2018. Reference to para nos.26, 27, 28, 29, 30 and

47 of the aforesaid judgment is necessary which would show

that the rule of Impartibility and primogeniture in relation to

zamindari must be established by proving the custom, but in

case of sovereign ruler, they are presumed to exist. If the Estate

is impartible even after 26.01.1950, the same would continue to

be governed by Rule of Primogeniture. Primarily, the reference

was made to Travancore and Nabha' s cases (supra) and

Talat Fatima Hasan's case (supra) is a case of muslim ruler

and the conclusion is drawn that the property of ruler would

descent according to personal law which was Muslim Personal

Law (Sheriat) Application Act, 1937. In case of Hindu ruler, the

personal law applicable is Section 5(ii) of the 1956 Act in which

rule of male lineal primogeniture has to be preferred.

(xxxvii). Punjab State Gazetteer volume XVI(a), Faridkot State

1915, genealogical table spanning 14 generations, updated

genealogical table spanning 18 generations and report on the

administration of Punjab and its dependencies 1870-71, Report

on administration of Punjab and its dependencies 1881-82,

report on administration of Punjab and its dependencies 1900-

1901 and oral evidence of Maharani Deepinder Kaur and

Rakumari Amrit Kaur would show that the consideration on the

aforesaid evidence would make the rule of male lineal

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primogeniture applicable to the property of late Raja Harinder

Singh in the matter of succession and after his demise his

brother Kanwar Manjit Inder Singh would succeed to the entire

property.

(xxxviii). The aforesaid documents are public documents

having their origin in public domain and, therefore, these

documents are per se admissible. Exception for relying upon

these documents can be made irrespective of want of pleadings

and evidence led by the parties in the said context.

[39]. Mr. Ashok Aggarwal, Senior counsel assisted by

Mr. Mukul Aggarwal and other Advocates appearing on behalf

of the appellants in RSA No.1418 of 2018 opposed the

arguments of both the learned counsel for the appellant(s) in

RSA No.2006 of 2018 and RSA No.2176 of 2018 on the

following grounds:-

(i). The Covenant was entered into between the ruler of

Faridkot and Union of India on 05.05.1948. According to Article

VI, the possession of the estate was to be surrendered to

Rajpramukh by 20.08.1948. Under Article X of the Covenant,

Rajpramukh shall have the powers to make and promulgate

ordinances for peace and good governance of the PEPSU.

Article XII of the Covenant provides for submitting a list of

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private properties, as distinct from State properties to

Rajpramukh before 20.09.1948. Under Article XIV of the

Covenant, the succession according to law and custom to the

Gaddi of the covenanting States and to personal rights,

privileges, dignities and title to the rulers thereof, was

guaranteed. On 15.07.1948, PEPSU was inaugurated by S.

Vallabh Bhai Patel. This finds mention in para No.131 of the

White Paper on Indian States published by the Government of

India. On 18.08.1948, The Raja of Faridkot's Estate Act, 1948

allegedly enacted by Raja Harinder Singh. The said Act was

never approved or adopted by the PEPSU. On 20.08.1948,

Rajpramukh promulgated Ordinance No.I (Samvat/2005 BK).

According to Section 3 of the said Ordinance, the laws

applicable in State of Patiala were made applicable mutatis

mutandis to PEPSU and the laws of all other covenanting States

ceased to have any effect. The said Ordinance was to remain in

force for six months and the laws of covenanting States

including The Raja of Faridkot's Estate Act, 1948 ceased to

have any effect. Reference of this Ordinance No.I (2005 BK)

has been taken from State of Haryana & Ors. vs. Amar Nath

Bansal, AIR 1997 SC 718.

(ii). The Rajpramukh promulgated Ordinance No.XVI

(2005 BK) on 15.02.1949 i.e. within the period of six months

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from the date of promulgation of Ordinance No.I (2005 BK).

According to Section 3 of the aforesaid Ordinance, the laws

applicable in State of Patiala would be applicable mutatis

mutandis to PEPSU and the laws of all other covenanting States

ceased to have any effect. This Ordinance had expiry date of

31.07.1949. On 31.07.1949, Ordinance No.XVIII (2006 BK) was

issued by amending Ordinance No.XVI (2005 BK). Section 3 of

the said Ordinance also specifically provided that law applicable

in State of Patiala would be applicable mutatis mutandis to

PEPSU and the laws of other covenanting States ceased to

have any effect. In this manner all the laws of the covenanting

States including The Raja of Faridkot's Estate Act, 1948 ceased

to have any effect. On 24.11.1949 a promulgation was made by

Rajpramukh that Constitution of India shall be the Constitution

of PEPSU. Reference can be made in this context to the White

Paper on record. On 26.01.1950, Constitution of India came into

force. According to Article 372 of the Constitution of India all

existing laws shall continue which were in force in the territory of

India immediately before the commencement of the Constitution

of India until altered or repealed or amended by a competent

legislature.

(iii). Article 366(10) of the Constitution of India defines

existing law which means any law, ordinances, order, bye-law,

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rule, or regulation passed or made before the commencement

of this Constitution by any legislature, authority, or person

having power to make such a law, ordinance, order, bye-law,

rule or regulation.

(iv). The Hindu Succession Act, 1956 came into force on

17.06.1956. Sections 4 and 5 of the Act read as under:-

"4. Overriding effect of Act.―(1) Save as

otherwise expressly provided in this Act,―

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

5. Act not to apply to certain properties-This

Act shall not apply to―

(i) any property succession to which is regulated by the Indian Succession Act, 1925 ( 39 of 1925), by reason of the provisions contained in section 21 of the Special Marriage Act, 1954 (43 of 1954);

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(ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act;

(iii) the Valiamma Thampuran Kovilagam Estate and the Palace Fund administered by the Palace Administration Board by reason of the powers conferred by Proclamation (IX of 1124) dated 29th June, 1949, promulgated by the Maharaja of Cochin."

(v). Reference to Section 4 of the Act, would show that

Rule of Primogeniture is not a codified law. At the most it can be

treated to be a custom which stands abrogated in view of

Section 4 of the Hindu Succession Act. Reference to Section

5(ii) of the Act, would show that the word 'any estate' is not

related to property, rather it is limited to Gaddi. In view of Article

XIV of the Covenant, no estate is covered, nor there is any

agreement entered into by the Ruler with the Government.

Covenant dated 05.05.1948 would not advance any such

proposition contained in the aforesaid Section 5(ii) of the Hindu

Succession Act. There is no such codified law by legislature,

which would confer any such right to succeed to the property.

Succession according to Article XIV of the Covenant dated

05.05.1948 is to the Gaddi of the covenanting State and to the

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personal rights and personal privileges, dignities, and title to the

rulers thereof and the same was guaranteed. Personal

properties are distinct from personal rights and privileges.

(vi). The 26th Constitutional Amendment came into force

on 28.12.1971 which omitted Article 291 (providing privy purse)

and Article 362 (enshrining rights and privileges of rulers).

Article 363-A was inserted thereby taking away recognition of

rulers.

(vii). While exercising the powers under Article X of the

Covenant (05.05.1948), the Rajpramukh on 20.08.1948

promulgated Ordinance No.1 (2005 BK) and under Section 3 of

the said Ordinance, the laws applicable to the State of Patiala

were made applicable mutatis mutandis to PEPSU and the laws

of all other covenanting States ceased to have any effect. In

Dalmiya Dadri Cement Limited's case (supra), it has been

held by the Hon'ble Apex Court consisting of Five Judges Bench

that Ordinance No.I (2005 BK) was in furtherance of legislative

powers of Rajpramukh. Para Nos.3, 18 and 23 of the said

judgment are relevant in the present context. Thereafter on

15.02.1949, Rajpramukh promulgated Ordinance No.XVI (2005

BK). According to Section 3 of the said Ordinance, the laws

applicable to the State of Patiala were made applicable mutatis

mutandis to PEPSU and the laws of all other covenanting States

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ceased to have any effect. Thereafter on 31.07.1949, Ordinance

No.XVIII (2006 BK) was issued by amending Ordinance No.XVI

(2005 BK). Same provision was made in Section 3 of the said

Ordinance, thereby applying laws of State of Patiala mutatis

mutandis and the laws of all other covenanting States ceased to

have any effect. In this manner The Raja of Faridkot's Estate

Act, 1948 also stood repealed.

(viii). Evidently, with regard to the PEPSU, no constituent

Assembly came into being, rather on 24.11.1949, a

proclamation was made by Rajpramukh that Constitution of

India shall be the Constitution of PEPSU. In this context

reference can be made to the White Paper already on record. In

view of above changes in Article X of the Covenant dated

05.05.1948, there is no doubt that the legislative powers were

always vested in Rajpramukh and as such Ordinance No.I and

Ordinance No.XVI (2005 BK) were existing and valid

enactments vide which the Raja of Faridkot's Estate Act, 1948

was repealed. On 26.01.1950, the Constitution of India came

into force and PEPSU Ordinance No.XVI (2005 BK)

unequivocally fell in the category of laws as defined under

Article 13(3)(a) and (b) of the Constitution of India and was an

existing law within the territory of India. In this context, para

No.135 of the judgment rendered by the Division Bench of this

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Court in State of Punjab & Ors. vs. Mahant Jatinder Dass's

case (supra) is relevant to be quoted:-

"(135). When the Constitution of India, as the fountain-head of all Statutes, came into force on 26.01.1950, the Farman-i-Shahi dated 18.04.1921 AD read with Sections 3(1) & 5(1) of PEPSU Ordinance No.XVI of 2005 BK unequivocally fell in the category of 'laws' as defined under Article 13(3)(a)&(b) of the Constitution and was in force within the territory of India.

(ix). As a result of such adoption of Constitution of India,

Ordinance No.XVI (2005 BK) was saved by Article 372 of the

Constitution of India which provides that all laws in force in the

territory of India immediately before commencement of the

Constitution shall continue in force therein until altered or

repealed or modified by a competent legislature or other

competent authority. Reference can be made to para No.15 of

the judgment of the Division Bench of Rajasthan High Court in

Mohan Lal and Anr. vs. Lal Chand and Ors., AIR 2001

Rajasthan 87. The same reads as under:-

"15. His Highness the Rajpramukh on 21st of

January, 1949, promulgated an ordinance to provide for

establishment of High Court of Judicature for Rajasthan,

known as "the Rajasthan High Court Ordinance 1949".

The Ordinance has been defined under Clause (i) of the

Ordinance of 1949, which provides as follows:

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1. Ordinance definition of Clause (51) of Section 32 of the Rajasthan General Clauses Act, 1955 defines the term 'Ordinance as under:

(51) "Ordinance" shall mean and include.

(a) as respects any period before the commencement of the Constitution

(i) an Ordinance lawfully made and promulgated by the Ruler or the Government of a covenating State;

(ii) an Ordinance lawfully made and promulgated by the Rajpramukh of the former Rajasthan State in pursuance of the Covenant;

(iii) an Ordinance likewise made and promulgated by the Rajpramukh of the former Matsya State; and

(iv) an Ordinance likewise made and promulgated by the Rajpramukh of Rajasthan; and

(b) as respects the period after such

commencement, an ordinance made and promulgated under and in accordance with the provisions of the Constitution.

(i) by the Rajpramukh upto the 31st day of October, 1956, or

(ii) by the Governor on or after the first day

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of November, 1956."

(x). With the enactment of Hindu Succession Act on

17.06.1956, all laws, customs etc. were repealed and

abrogated. Succession is governed only by provisions of the

said Act. Since The Raja of Faridkot's Estate Act, 1948 was

repealed by Ordinance No.I and Ordinance No.XVI (2005 BK),

therefore, it could not said to be a law in force on 26.01.1950

and as such could not be saved by Article 372 of the

Constitution of India. In this context, it would be appropriate to

refer para nos.109, 110 and 122 to 134 of State of Punjab &

Ors. vs. Mahant Jatinder Dass's case (supra). The same read

as under:-

ARTICLE 13(1) OF THE CONSTITUTION

(109) Article 13 of the Constitution declares that all 'laws' in force in the territory of India immediately before the commencement of this Constitution which are inconsistent with the provisions of Part-III of the Constitution, shall be void to the extent of such inconsistency. The 'law' within the meaning of Article 13 includes any Ordinance, Order, Bye-law, Rule, Regulation, Notification, Custom or Usage having in the territory of India the force of law. It is mandatory that the preConstitutional laws must conform to the Fundamental Rights. A pre-Constitutional law shall be void if it runs contrary to the Fundamental Rights guaranteed under Part-III of the Constitution though only to the extent of

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such inconsistency. The complete Code therefore will not be rendered void and if the inconsistent part is also amended subsequently, so as to remove the repugnancy, then the entire law shall become free from all blemishes.2 The Supreme Court has clarified that the effect of Article 13(1) is not to obliterate the inconsistent law from the Statute Book for all times or for all purposes or for all people. The effect is that the inconsistent law cannot stand in the way of exercise of Fundamenal Rights by persons who are entitled to those rights on the commencement of this Constitution. But such law remains good even after the Constitution has come into force as regards persons who have not been given Fundamental Rights, namely, the aliens.

(110) Article 13(1) though is couched with negative phrases to reinforce the supremacy of Part-III of the Constitution above any other law, nonetheless, this provision by implication, protects the enforceability of all such laws in force in the territory of India immediately before the commencement of this Constitution provided they are not derogatory to Part-III of the Constitution. Article 372(1) sets at rest the doubt, if any, when it declares that "subject to other provisions of this Constitution", all the 'law' in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. Thus, if a law in force in the territory of India immediately before the commencement of the Constitution is not inconsistent with its Part-III within the meaning of Article 13(1), such law shall continue in force under Article 372(1) subject to its

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alteration, repeal or amendment by a competent Legislature or other competent authority. Further, Part-III of the Constitution has no retrospective effect and any action taken under any law which was valid at the time when such action was taken, namely, prior to the enforcement of the Constitution, cannot after the commencement of this Constitution, be challenged as unconstitutional on the score of its infringing any of the Fundamental Rights.

(122) As regards the legal status of Farman-i-Shahi on attainment of Independence by India, it may be mentioned here that the erstwhile Rulers of Faridkot, Jind, Kapurthala, Malerkotla, Nabha, Patiala, Kalsia and Nalagarh entered into a Covenant on 05.05.1948 followed by the Supplementary Covenant dated 09.04.1949 AD to merge and establish as a 'State' of independent India to which they had "already acceded to". All these territories were integrated by the name of "Patiala and East Punjab States Union", namely, the PEPSU State. The Rulers of each Covenanting State handed over the administration of his respective State to the Rajpramukh (Article VI of the Covenant).

(123) Immediate thereupon the PEPSU State issued Ordinance No.XVI of 2005 BK (notified on 15th February, 1949) as amended by Patiala and East Punjab States Union General Provisions (Administration) Amendment Ordinance No.XVIII of 2006 BK (notified on 31st July, 1949), the salient features whereof are as follows:-

2. In this Ordinance, unless there is anything repugnant in the subject or context:

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(a) "appointed day" means the fifth day of Bhadon, 2005;

(b) xxx xxx xxx

3.(1) As from the appointed day, all laws and rules,

regulations, bye-laws and notifications made thereunder, and all other provisions having the force of law, in Patiala State on the said day shall apply, mutatis mutandis, to the territories of the (State) and all laws in force in the other Covenanting States immediately before that day shall cease to have effect:

Provided that all suits, appeals, revisions, applications, reviews, executions and other proceedings, or any of them, wherther civil or criminal or revenue pending in the Courts and before authorities of any Covenanting State shall, notwithstanding anything contained in this Ordinance, be disposed of in accordance with the laws governing such proceedings in force in any such Covenanting State immediately before the appointed day.

(2) xxx xxx xxx

4. xxx xxx xxx

5. (1) Except where the context otherwise requires, any reference in any law, order, rule, regulation, bye-law, notification, Hidayat or Farman-i-Shahi referred to in Section 3, and other instrument shall, where the reference is to the officers, authorities, documents or territories mentioned in column one of the following table, be construed as a reference to the officers, authorities, documents or territories respectively mentioned in the second column of the said table:-

1. Ruler, High Highness Rajpramukh of

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2. Government of the Government of the State, Darbar or Ijlas-i State.

Khas.

3. Official Gazette, Official Gazette of Government Gazette, the State.

State Gazette and the like

4. Patiala State The State."

(124) Reference may, at this stage, be made to PEPSU Repealing Act of 2008 BK notified on

09.09.1951. Its Section 2 repealed the enactments specified in the Schedule of the Act without affecting the validity, consequences or anything already done or any past act or thing. The Schedule also included the Patiala and East Punjab States Union General Provisions (Administration) Amendment Ordinance No.XVIII of 2006. The only amendment made in the Ordinance No.XVI of 2005 BK vide PEPSU Ordinance No.XVIII of 2006 was the insertion of subSection (3) in Section 10 so as to enable the Rajpramukh to make Rules for the more convenient transaction of the business of Government, and for allocation of the said business among the Ministers. Section 14 of the Ordinance of 2005 was also amended to confer powers upon the Rajpramukh to regulate the recruitment and conditions of service of a persons appointed to public services etc.

(125) The brief legislative history as narrated above manifests that Farman-i-Shahi dated 18.04.1921 AD was formulated by Ijlas-i-Khas, who was equivalent in status with the present day State Government. The Farman-i- Shahi was issued under the command of the Ruler, who too enjoyed the status and rank of Rajpramukh or Governor of a State in the post Constitution regime.

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(126) Farman-i-Shahi was neither amended or repealed nor superseded by any subsequent dictate of equal or superior legal force till the Princely State of Patiala along with other Princely States integrated into the post-Independent State of PEPSU in May 1948.

(127) PEPSU State then issued Patiala and East Punjab States Union General Provisions (Administration) Ordinance No.XVI of 2005 (BK) (notified on 15.02.1949) as was amended by PEPSU Ordinance No.XVIII of 2006 (notified on 31.07.1949) (for convenience and in short, referred to as 'the 1949 Ordinance'). The Ordinance was promulgated by the Rajpramukh and as per its Section 3(1), all laws, rules, regulations, bye-laws, notifications made thereunder and all other provisions having the force of law in Patiala State stood applied, mutatis mutandis, to the territories of PEPSU State and all laws in force in the other Covenanting States immediately before that day ceased to have effect.

(128) Section 3(2) & Section 4 of the 1949 Ordinance contained saving clauses with which we are not concerned here. Its Section 5(1) determines corresponding status of the officers, authorities or documents of the Patiala State under the independent India.

(129) The 1949 Ordinance explicitly provides the status of the Ruler equivalent to that of the Rajpramukh of the State (i.e. Governor, at present); and of Darbar or Ijlas-i-Khas equivalent to the Government of State. The word 'Patiala State' was to be construed as the PEPSU State.

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(130) It is pertinent to point out that the Princely State of Patiala had also its own codified Patiala General Clauses Act, 2002 BK (Act No.XII of 2002 BK), which was sanctioned by Ijlas-iKhas vide Order No.4107/383- AR-2002 BK dated 05.02.1946. According to Section 3-A of this Act, "When any enactment in force in British India is enforced in the Patiala State, by an order of Ijlas-i- Khas, in the absence of any specific provision to the contrary, the following expressions will be deemed to have been substituted for the corresponding expressions in the British Indian enactmentS". We have purposefully cited this provision to point out that the power to adopt or enforce a law was expressly vested in Ijlas-i-Khas only.

(131) Vide PEPSU Repealing Act, 2005 BK which came into force on 09.09.1951, only the PEPSU Ordinance No.XVIII of 2006 BK was repealed and not the Ordinance No.XVI of 2005 BK. The legal effect of the repeal of Ordinance No.XVIII of 2006 is that it remained no more on the Statute Book, for the amendments brought into force through this Ordinance had already been subsumed in Ordinance No.XVI of 2005 BK and those amended provisions remained unaffected, notwithstanding the repeal of Ordinance No.XVIII of 2006 BK.

(132) Section 4-A read with Section 6 of the Punjab General Clauses Act, 1898, which remained in force till it was repealed by the Punjab General Clauses Act, 1956, used to provide that where any 'Punjab Act' repeals any amendment by which the text of any Punjab Act was amended by the express omission, insertion or substitution of any matter, then, unless a different

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intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.

(133) Section 2(46) of the above-mentioned 1898 General Clauses Act, as amended from time to time till the year 1951, used to define the expression "Punjab Act" to mean "San Act made by the Lieutenant Governor of the Punjab in Council under the Indian Councils Act, 1861 to 1909, or any of those Acts, or the Government of India Act, 1915, or by the Local Legislature or the Governor of the Punjab under the Government of India Act, or by the Provincial Legislature or the Governor of the Punjab [or by the Provincial Legislature or the Governor of East Punjab under the Government of India Act, 1935, or by the Legislature of Punjab under the Constitution]".

(134) The amended definition of Punjab Act(s) under the Punjab General Clauses Act, 1898 was thus so wide that it included all the PEPSU laws within its sweep. The provisions of the amended Ordinance of 2005, therefore, remained unaffected notwithstanding the repeal of Ordinance of 2006."

Para No.135 has already been reproduced in the

preceding para.

(xi). As a consequence of above, The Raja of Faridkot's

Estate Act, 1948 not being an existing enactment cannot be

covered under Section 5(ii) of the Hindu Succession Act, 1956.

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The same Ordinance has been incorporated in State of

Haryana & Ors. vs. Amar Nath Bansal's case (supra) wherein

it has been held by the Hon'ble Apex Court that since the repeal

of laws of other covenanting States by Ordinance Nos.I & XVI

(2005 BK) intended to be for all times, the expiration of said

Ordinance would not mean that the effect of said Ordinances

regarding non-applicability of laws of other covenanting States

in the territory of PEPSU was nullified on the expiration of

Ordinance No.XVI (2005 BK). Section 3(35) of the PEPSU

General Clauses Act, 1954 defines PEPSU Act which shall

mean an Act of legislature of the (territories which, immediately

before 01.11.1956, formed part of State of Patiala and East

Punjab States Union) and shall include:-

(a) Any Act or Ordinance made or promulaged

by the Ruler of the former Patiala State and made

applicable to PEPSU by virtue of Section 3 of the

Patiala East Punjab States Union General Provisions

(Administration Ordinance) 2005 BK;

(b) An Ordinance made and promulgated by

the Rajpramukh under Article X of the Covenant.

(xii). Therefore, from the bare reading of the aforesaid

provisions, it would be beyond all doubt that even an Ordinance

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has to be treated as an Act for the purposes of PEPSU Law.

(xiii). As per Section 30 of Patiala General Clauses Act,

(2002 BK), when an Ordinance expires, the provision of Section

6 shall apply. Section 6 of the said Act provides that expiry of

the ordinance shall not revive anyting not in force or existing at

the time when the ordinance expires. In view of aforesaid, The

Raja of Faridkot's Estate Act, 1948 is not covered under the

exception of Section 5(ii) of the Hindu Succession Act, 1956.

The expression 'estate' in the Hindu Succession Act, 1956 is

used only with regard to Gaddi and other titles and privileges of

Ruler and not the private properties of the Ruler. In

Shatabhanu Singh Deo vs. State of Bihar, 1981 BBCJ 155

(Patna) it has been held in para No.10 of the judgment in the

following manner:-

".......Supreme Court has repeatedly held that the agreement or recognition has nothing to do with the private properties of the Ruler and the guarantee under the agreement is only with regard to the Gaddi of the State and of the Raja's personal rights, privileges, dignities and titles qua a Ruler. The word "estate" in section 5(ii) of the Act must be confined to properties other than private properties of the Ruler. The right to the private properties of the Ruler shall depend on the personal law of succession by which the family is governed. It must, therefore, be held that section 5(ii) of the Act has no application to this case."

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(xiv). Even the latest judgment in Talat Fatima Hasan's

case (supra) in para No.46 and 47, the Hon'ble Apex Court has

held as under:-

"46. A Gaddi or rulership and private property have two different connotations even in the merger agreement/instrument of accession. In Article 2 of the agreement, it is clearly mentioned that Nawab would continue to enjoy the same personal rights, privileges, immunities and dignities and other titles which he would have enjoyed prior to the agreement. Conspicuously, the word 'property' or 'personal property' is missing. Article 2 deals only with personal rights, privileges, dignities, etc. Article 3 deals with privy purse which would also be a part of the rulership or Gaddi. Article 6 which deals with succession, guarantees the succession according to law and custom to the Gaddi of the State and to the Nawab's personal rights, privileges, immunities, dignities and title. 7 Rajpal Hindi Shabdkosh, Dr. Hardev Bahri, Rajpal & Sons, Pg.206 (2018) 8 Oxford Hindi-English Dictionary, Edited by R.S. McGregor, Oxford University Press, Pg.254 (2018) Gaddi would be the 'throne' or 'title' of Nawab in the context in which it has been used and the personal rights, privileges, immunities, dignities and titles will be those referred to in Article 2. The word 'property' is also conspicuously absent in Article 6.

47. Article 4 states that the Nawab shall be entitled to full ownership, use and enjoyment of all private properties as distinct from State properties. Such properties must belong to him as on the date of agreement. In our view, Article 6 does not relate to the properties mentioned in Article 4 and the private

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properties would remain the private properties of the Nawab as a common citizen of the country as held in various authorities referred to above. We have, therefore, no hesitation in holding that on the death of the ruler, Nawab Raza Ali Khan in the year 1966, succession to his private properties was governed by personal laws."

(xv). The aforesaid proposition was held to the effect that

Gaddi/rulership and private property have two distinct

connotations. Even in the merger agreement/instrument of

accession, the words "personal property" are missing from

Article 2 of the Agreement which clearly mentioned that Nawab

would continue to enjoy the same personal rights, privileges,

immunities and dignities and other titles which would have

enjoyed by him prior to the agreement. The word(s) "property"

or "personal property" are missing. Article 2 deals with only

personal rights, privileges, dignities etc. which are distinct from

personal property. Article 3 deals with privy purse which would

also be a part of rulership/Gaddi. Article 6 deals with

succession, guarantees the succession according to law and

custom to the Gaddi of the State and to the Nawab's personal

rights, privileges, immunities and dignities and title. Gaddi would

mean the throne/title in the context in which it has been used

and the personal rights, privileges, immunities, dignities and title

will be those as referred to in Article 2. The word 'property' is

conspicuously missing in Article 6. According to Article 4,

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Nawab shall be entitled full ownership use and enjoyment of all

private properties as distinct from state properties. Such

properties must belong to him as on the date of agreement.

Article 6 does not relate to properties mentioned in Article 4 and

the private properties would remain the private properties of the

Nawab as a common citizen of the country.

(xvi). The life of Ordinance No.XVI (2005 BK) was never

expired after six months, as the same was extended by

Ordinance No.XVIII (2006 BK), therefore, on expiration of period

of Ordinance, The Raja of Faridkot's Estate Act, 1948 never

revived or continued to remain in existence till commencement

of Constitution of India on 26.01.1950. The mandate of Section

3 contained in Ordinance and the said provision was extended

by passing new Ordinances within the life span of six months,

which provided that the laws applicable in the State of Patiala

were made applicable mutatis mutandis and the law of all other

covenanting States ceased to have any effect. After Ordinance

No.I (2005 BK), Rajpramukh promulgated Ordinance No.XVI

(2005 BK) on 15.02.1949 within a time span of six months and

same provision was made in respect of applicability of law of

State of Patiala to be applicable mutatis mutandis to PEPSU

and the law of other covenanting States ceased to have any

effect. The aforesaid Ordinances No.I and XVI (2005 BK) finds

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mention in State of Haryana & Ors. vs. Amar Nath Bansal's

case (supra).

(xvii). On 31.07.1949, by virtue of Ordinance No.XVIII (2006

BK), Ordinance No.XVI (2005 BK) was amended according to

Section 3, same provision was made as regards law of State of

Patiala to be applicable mutatis mutandis to PEPSU and laws of

all other covenanting States ceased to have any effect. The

Raja of Faridkot's Estate Act, 1948 stood repealed in view of

aforesaid factual position.

(xviii). With regard to PEPSU, no constituent Assembly

came into being. On 24.11.1949, a proclamation was made by

Rajpramukh that Constitution of India shall be the Constitution

of PEPSU. It finds mention in the White Paper which is already

on record. On 26.01.1950, Constitution of India came into force.

PEPSU Ordinance No.XVI (2005 BK) unequivocally fell in the

category of laws as defined under Article 13(3)(a) and (b) of the

Constitution of India and was an existing law within the territory

of India. Reference has already been made to para No.135 of

the judgment rendered in State of Punjab vs. Mahant Jatinder

Dass's case (supra). With the adoption of Constitution of India,

Ordinance No.XVI was saved by Article 372 of the Constitution

of India which provides that all the laws in force in the territory of

India immediately before the commencement of the Constitution

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shall continue in force therein until altered or repealed or

modified by competent legislature and other competent

authority. Reference has already been made to Mohan Lal vs.

Lal Chand's case (supra). As such Ordinance No.XVI read with

Article 372 of the Constitution of India, the laws in force in

Patiala State which were enforced by Ordinance No.XVI

continued in operation until they are repealed, altered or

modified. Thereafter with the enactment of the Hindu

Succession Act on 17.06.1956, all laws and customs etc. were

repealed and abrogated and the succession is covered only by

the provision of the said Act. Since the repeal of laws of other

covenanting States was intended to be for all times, therefore,

the expiration of the said Ordinances would not mean that the

effect of said Ordinance regarding non-applicability of laws of

other covenanting States in the territory of PEPSU was nullified

on the expiration of Ordinance No.XVI (2005 BK). Reference

has already been to para nos.4, 5 and 19 of State of Haryana

vs. Amarnath Bansal's case (supra) and 109, 110 and 122 to

134 of State of Punjab vs. Mahant Jatinder Dass's case

(supra).

(xix). Section 30 of The Patiala General Clauses Act (2002

BK) specifically provides that expiration of Ordinance does not

revive anything not in force or existing when the Ordinance

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expires. Rajpramukh had legislative powers as held in Dalmiya

Dadri Cement Limited's case (supra), Ordinance No.I (2005

BK) was held to be in furtherance of legislative powers of

Rajpramukh in para no.18 of the judgment. Similarly in terms of

Section 3(35) of the PEPSU General Clauses Act, 1954,

PEPSU Act has been defined in the manner as discussed in the

preceding paras. The distinction made by the precedents in

respect of expression Estate has to be read in context of Gaddi

alone. Personal properties are distinct from personal rights,

privileges, immunities, dignities and other titles which the Ruler

would have enjoyed prior to the agreement. The word

'property/personal property' is conspicuously missing in

Article II. Personal rights, privileges, immunities and dignities

will be those as referred to Article II. The word 'property' is also

conspicuously missing in Article VI. The position of law has

been explained in latest judgment Talat Fatima Hasan's case

(supra) which is the latest law on the subject and has been

delivered after due consideration of all the precedents on the

point. The issue is no more res integra. Even in Dalip Kumar

vs. State of Rajasthan and others, 2005(37) R.C.R. (Civil)

493 (Rajasthan), the Division Bench of the Rajasthan High

Court has held that the Ordinance promulgated by the

Rajpramukh was an exercise of legislative power in absolute

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terms and constituted an existing law in terms of Article 366(10)

of the Constitution of India which was in force in the territory of

India immediately before commencement of Constitution.

Conclusion in respect of validity of The Raja of Faridkot's Estate Act, 1948 and its effect.

[40]. Having considered the submissions and rival

submissions made by learned Senior counsel for the parties, it

can be appreciated that a Covenant was entered into between

the Ruler of Faridkot State and Union of India on 05.05.1948.

According to Article VI of the aforesaid Covenant, possession of

the Faridkot State was to be surrendered to Rajpramukh upto

20.08.1948. According to Article X of the said Covenant,

Rajpramukh shall have the powers to make and promulgate

ordinances for peace and good government/governance of

PEPSU. Article XII of the Covenant provides for submitting list

of private properties as distinct from State properties by the

Ruler to the Rajpramukh before 20.09.1948. Similarly according

to Article XIV of the Covenant, the succession as per law of

custom to the Gaddi of the covenanting States and to personal

properties, privileges, dignities and title to the Rulers thereof

were guaranteed. In this manner, PEPSU was inaugurated by

Sardar Vallabh Bhai Patel on 15.07.1948. This finds mention in

Para 131, Page 88 of the White Paper on Indian States

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published by Government of India. On 18.08.1948, The Raja of

Faridkot's Estate Act, 1948 was enacted. The said Act was

never approved or adopted by the PEPSU, rather on

20.08.1948, Rajpramukh promulgated Ordinance No.I

(Samvat/2005 BK), though this Ordinance has not been placed

by any of the parties, but it finds mention in State of Haryana &

Ors. vs. Amar Nath Bansal's case (supra) which has been

relied by all the three parties. According to Section 3 of the said

Ordinance, the laws applicable in the State of Patiala were

made applicable mutatis mutandis to PEPSU and the laws of all

other covenanting States ceased to have any effect. The time

span of this Ordinance was for six months. Therefore, the laws

of covenanting States including The Raja of Faridkot's Estate

Act, 1948 had ceased to have any effect in view of the said

Ordinance. Before expiry of six months, Rajpramukh

promulgated another Ordinance No.XVI (2005 BK) on

15.02.1949. The said Ordinance was promulgated with the

same configurations. Section 3 of the aforesaid Ordinance also

provided that all laws applicable in the State of Patiala would

apply mutatis mutandis to PEPSU and all laws of other

covenanting States ceased to have any effect. Reference of this

Ordinance also finds mention in State of Haryana & Ors. vs.

Amar Nath Bansal's case (supra). Before the expiry of said

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Ordinance, another Ordinance No.XVIII (2006 BK) was

promulgated by the Rajpramukh on 31.07.1949. Vide this

Ordinance, Ordinance No.XVI (2005 BK) was amended. Section

3 of the said Ordinance also provided the same effect of

applicability of laws of State of Patiala mutatis mutandis to

PEPSU and laws of all other covenanting States ceased to have

any effect. It is quite apparent that all laws of covenanting

States including The Raja of Faridkot's Estate Act, 1948 also

stood repealed in view of aforesaid Ordinances.

[41]. In the light of aforesaid Ordinances, the laws of all

other covenanting States were held not applicable to PEPSU,

rather the laws of State of Patiala were held to be mutatis

mutandis applicable to PEPSU. With regard to PEPSU, no

Constituent Assembly came into being. Before expiry of duration

of Ordinance No.XVI (2005 BK) as amended by Ordinance

No.XVIII (2006 BK), a proclamation was made by Rajpramukh

on 24.11.1949 that the Constitution of India shall be the

Constitution of PEPSU. In this context reference can be made to

the White Paper on record to show that in view of the aforesaid

changes in Article X of the Covenant, nothing remained under

doubt that the legislative powers were always vested in

Rajpramukh and as such Ordinances No.I and XVI (2005 BK)

were valid enactments. Ordinance No.XVI (2005 BK) was

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lawfully amended by Ordinance No.XVIII (2006 BK) and the

same were in existence which repealed The Raja of Faridkot's

Estate Act, 1948.

[42]. On 26.01.1950, when Constitution of India came into

force, PEPSU Ordinance No.XVI (2005 BK) as amended by

Ordinance No.XVIII (2006 BK) was in existence and

unequivocally fell in the category of laws as defined under

Article 13(3)(a) and (b) of the Constitution of India. This

Ordinance was saved by Article 372 of the Constitution of India

as a result of such adoption made by Rajpramukh by way of

proclamation dated 24.11.1949.

[43]. In view of aforesaid factual position on record,

Ordinance No.I (2005 BK) and Ordinance No.XVI (2005 BK) as

amended by Ordinance No.XVIII (2006 BK) were existing and

valid enactments vide which The Raja of Faridkot's Estate Act,

1948 was repealed. Ordinance No.XVI (2005 BK) was the

existing law and was saved by Article 372 of the Constitution of

India which provides that all the laws in force in the territory of

India immediately before the commencement of Constitution

shall continue in force therein until altered or repealed or

modified by a competent legislature of other competent

authority. This is so held in Mohan Lal and Anr. vs. Lal Chand

and Ors.'s case (supra) and in para No.135 of State of Punjab

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& Ors. vs. Mahant Jatinder Dass's case (supra).

[44]. When the Constitution of India as the fountain head

of all the States came into force on 26.01.1950, Ordinance

No.XVI (2005 BK) as amended by Ordinance No.XVIII (2006

BK) read with Section 3(1) and 5(1) of PEPSU unequivocally fell

in the category of laws as defined under Article 13(3)(a) and (b)

of the Constitution of India and was in force within the territory of

India, therefore, at the time of enactment of Hindu Succession

Act on 17.06.1956, all laws, customs etc. were repealed or

abrogated and succession was governed by the provision of

said Act. The Raja of Faridkot's Estate Act, 1948 stood repealed

on the basis of existing laws/Ordinance No.XVI (2005 BK) which

fell in the category of laws and saved by Article 372 of the

Constitution of India at the time of coming into force of

Constitution of India on 26.01.1950. Reference paragraphs

No.109, 110 and 122 to 134 of State of Punjab & Ors. vs.

Mahant Jatinder Dass's case (supra) can be relied in this

context.

[45]. As a result of aforesaid position, The Raja of

Faridkot's Estate Act, 1948 not being an existing enactment at

the time of coming into force of Constitution of India on

26.01.1950 would not be covered under Section 5(ii) of the

Hindu Succession Act, 1956. Ordinances No.I and XVI (2005

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BK) have been discussed in State of Haryana & Ors. vs. Amar

Nath Bansal's case (supra). The said Ordinances have been

interpreted and it has been held by the Hon'ble Apex Court that

since the repeal of the laws of other Covenanting States by

Ordinances No.I and XVI (2005 BK) was intended to be for all

times, the expiration of the said Ordinances would not mean

that the effect of said Ordinances regarding non-applicability of

the laws of all other covenanting States in the territory of

PEPSU was nullified on expiration of Ordinance No.XVI (2005

BK).

[46]. It would not be out of context to mention here that

Section 3(35) of PEPSU General Clauses Act, 1954 defined

"PEPSU Act" which shall mean an Act of the Legislature of the

(territories which immediately before the 1st November 1956

formed part of the State of Patiala and East Punjab States

Union) and shall include:-

(a) any Act or Ordinance made or

promulgated by the Ruler of the former Patiala State

and made applicable to PEPSU by virtue of Section 3

of the Patiala East Punjab States Union General

Provisions (Administration) Ordinance 2005 BK; and

(b) an Ordinance made and promulgated by

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the Rajpramukh under Article X of the Covenant.

[47]. In view of aforesaid, it would be crystal clear that

even an Ordinance was considered to be an Act for the purpose

of PEPSU law. According to Section 30(2) of Patiala General

Clauses Act, (2002 BK), when an Ordinance expires, it does not

revive anything not in force or existing at the time of expiry of

the Ordinance, rather provision of Section 6 shall apply which

provides that on expiry of Ordinance, it shall not revive anything

not in force. From this proposition as well, The Raja of Faridkot's

Estate Act, 1948 is not covered under exception of Section 5(ii)

of the Hindu Succession Act, 1956. The expression 'estate' is

used in the said Act is used only with regard to Gaddi and other

title and privileges of the Ruler and not the private properties of

the Ruler. Rajpramukh had the legislative powers and it has

been held in Dalmiya Dadri Cement Limited's case (supra)

that Ordinances No.I and XVI (2005 BK) were in furtherance of

legislative powers of Rajpramukh. Reference para No.18 of the

said judgment is necessary to be quoted in this context. The

same reads as under:-

"18. Considerable emphasis was laid for the appellant on Art. XVI of the Covenant under which the Union guaranteed the continuance of the service of permanent members of public services, and this 'was relied on as showing that the rights of the subjects of the

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quondam States were intended to be protected. This argument is sufficiently answered by what we have already observed, namely, that a clause in a treaty between high contracting parties does not confer any right on the subjects which could be made the subject- matter of action in the courts, and that the Patiala Union is not bound by it, because it was not a party to the Covenant. It should, however, be mentioned that after the formation of the new State on 20-8-1948, the first legislative act of the sovereign was the promulgation of Ordinance No. 1 of Section 2005, and Section 4 thereof expressly recognises the rights of the permanent members of public services. That undoubtedly is a law enacted by the sovereign conferring rights on his subjects and enforceable in a court of law, but at the same time the enactment of such a law serves to emphasise that the Articles have not in themselves the force of law and were not intended to create or recognise rights. In this connection, reference should also be made to clause XVI of the Ordinance which enacts that " the provisions of articles XV and XVII of the Covenant relating to the bar of certain suits and proceedings shall have the force of law."

[48]. In view of aforesaid legal position, I have no

hesitation to hold that Ordinances No.I and XVI (2005 BK) were

considered as an Act for the purpose of PEPSU Law which on

coming into force of Constitution of India on 26.01.1950 were

saved by Article 372 of the Constitution of India and

unequivocally fell in the category of laws defined under Article

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13(3)(a) and (b) of the Constitution of India and were an existing

laws within the territory of India. It has been so held by the

Division Bench of this Court in State of Punjab & Ors. vs.

Mahant Jatinder Dass and Mohan Lal and Anr. vs. Lal

Chand and Ors.'s cases (supra). So far the validity of

Rajpramukh is concerned, it has been held in Dalip Kumar vs.

State of Rajasthan, 2005(37) R.C.R. (Civil) 493 DB and

Dalmiya Dadri Cement Limited's case (supra) that Ordinances

were promulgated by Rajpramukh in exercise of legislative

powers vested in him and in absolute terms which constituted

an existing law in terms of Article 366(10) of the Constitution of

India which was enforced in the territory of India immediately

before commencement of Constitution of India. When

Constitution of India came into being, then in terms of Article

372 such Ordinances were saved and became existing laws in

view of aforesaid Article 372 of the Constitution of India.

[49]. Even as per State of Haryana & Ors. vs. Amar

Nath Bansal's case (supra), repeal of laws of all other

covenanting States by Ordinances No.I and XVI (2005 BK) was

intended to be for all time. The expiration of said Ordinances

would not mean that effect of such ordinances regarding non-

applicability of laws of all other covenanting States in the

territory of PEPSU was nullified on the expiration of Ordinance

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No.XVI (2005 BK). Reference to para nos.4, 5, 6, 11, 12 and 19

of the aforecited judgment can be made.

[50]. In view of aforesaid position, The Raja of Faridkot's

Estate Act, 1948 does not advance the case of the appellant

Rajkumari Amrit Kaur for the succession of the Estate. The said

Act was not a valid law on the date of commencement of

Constitution of India on 26.01.1950 as the said Act never saved

by Article 372 of the Constitution of India, rather Ordinance

No.XVI (2005 BK) as amended by Ordinance No.XVIII (2006

BK) was saved on the strength of proclamation made by

Rajpramukh on 24.11.1949 as no Constituent Assembly came

into being and Rajpramukh proclaimed that Constitution of India

shall be the Constitution of PEPSU. The said fact finds mention

in the White Paper on record. Once The Raja of Faridkot's

Estate Act, 1948 was not adopted and it had ceased to have

any effect on the covenanting States, therefore, it has no

application to the succession in terms of Section 4 of The Raja

of Faridkot's Estate Act, 1948. Once The Raja of Faridkot's

Estate Act, 1948 itself was not approved by PEPSU, the

properties as per list of properties in the hands of late Raja

Harinder Singh Brar will not be governed by the said Act.

[51]. Article X of the Covenant even though prescribed that

the Rajpramukh had the administrative powers for peace and

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good government/governance, but in view of Ordinance No.I

and Ordinance No.XVI (2005 BK) as amended by Ordinance

No.XVIII (2006 BK) and interpreted in Dalmiya Dadri Cement

Limited and Dalip Kumar vs. State of Rajasthan's cases

(supra), the same are the result of exercise of legislative powers

by the Rajpramukh. Section 3 of the Ordinance No.XVIII (2006

BK) amending Ordinance No.XVI (2005 BK) prescribed for non-

applicability of laws of covenanting States in PEPSU, rather

laws of State of Patiala were applicable mutatis mutandis to the

all covenanting States. The repeal of laws of other covenanting

States including The Raja of Faridkot's Estate Act, 1948 was

never intended to be revived even on expiration of validity

period of Ordinances. In view of ratio of State of Haryana &

Ors. vs. Amar Nath Bansal's case (supra) and even otherwise

Ordinance No.XVI (2005 BK) as amended by Ordinance

No.XVIII (2006 BK) and before expiration of validity period of

said Ordinances, Rajpramukh made a proclamation on

24.11.1949, adopting the Constitution of India as Constitution of

PEPSU, and thereafter on 26.01.1950, PEPSU Ordinance

No.XVI (2005 BK) unequivocally fell in the category of laws as

defined under Article 13(3)(a) and (b) of the Constitution of India

and was saved by Article 372 of the Constitution of India. In

view of aforesaid legal position, the arguments that Rajpramukh

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did not have any legislative authority do not hold good, rather

the Ordinances were having the background of legislative

exercise of powers by Rajpramukh as interpreted in the case

laws and the same repealed The Raja of Faridkot's Estate Act,

1948 which was not saved by Article 372 of the Constitution of

India and the said Act was not the law as covered by Article

13(3)(a) and (b) of the Constitution of India.

[52]. The arguments raised by learned Senior counsel

appearing on behalf of the appellant-Rajkumari Amrit Kaur that

The Raja of Faridkot's Estate Act, 1948 was never repealed, do

not hold good in view of Section 3 of the Ordinance No.XVI

(2005 BK) which was amended by Ordinance No.XVIII (2006

BK) which unequivocally fell in the category of laws and Article

13(3)(a) and (b) of the Constitution of India and saved by Article

372 of the Constitution of India. Secondly, in view of Section

3(35) of the PEPSU General Clauses Act, 1954, PEPSU Act

means an Act of Legislature to the territories which immediately

before 01.11.1956 formed part of PEPSU and shall include any

Act or Ordinance made or promulgated by the Ruler of former

Patiala State and made applicable to PEPSU by virtue of

Section 3 of PEPSU General Provision (Administration)

Ordinance 2005 BK and an ordinance made and promulgated

by the Rajpramukh under Article X of the Covenant. Therefore,

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from the above position as well, the Ordinance has to be

considered as an Act for the purpose of PEPSU law and the

effect of The Raja of Faridkot's Estate Act, 1948 had ceased to

exist. It is true that duration of Ordinance was six months, but

before expiry of six months of Ordinance No.I (2005 BK),

second Ordinance No.XVI (2005 BK) came into being w.e.f.

15.02.1949. Before expiry of six months of this Ordinance, 3rd

Ordinance No.XVIII (2006 BK) came into being vide which

Ordinance No.XVI (2005 BK) was amended and before expiry of

the time, the Rajpramukh made proclamation on 24.11.1949

adopting the Constitution of India as Constitution of PEPSU

and, therefore, on coming into force the Constitution of India on

26.01.1950, PEPSU Ordinance No.XVI (2005 BK) unequivocally

fell in the category of laws and was saved by Article 372 of the

Constitution of India. The Raja of Faridkot's Estate Act, 1948

was never approved, therefore, its revival never arose because

it was never in existence. It was never saved by Article 372 of

the Constitution of India. Since, The Raja of Faridkot's Estate

Act, 1948 was not an existing enactment at the time of

commencement of Constitution of India as well as Hindu

Succession Act, 1956, therefore, the claim of the appellant

Rajkumari Amrit Kaur is not covered under the exception of

Section 5(ii) of the said Act.

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[53]. The expression 'estate' in Hindu Succession Act,

1956 is used only with regard to Gaddi and other titles and

privileges of the Ruler and not the private properties of the

Ruler. The Hon'ble Apex Court has repeatedly held that the

agreement or recognition has nothing to do with the private

properties of the Ruler and the guarantee under the agreement

is only with regard to the Gaddi of the State and of Raja's

personal right, privileges, dignities and title qua a Ruler. The

word 'estate' in Section 5(ii) of the Hindu Succession Act must

be confined to the properties other than private properties of the

Ruler. The right to private properties of the Ruler shall depend

upon the personal laws of succession by which the family is

governed. It must, therefore, be held that Section 5(ii) of the

Hindu Succession Act has no application in the case in hand.

The proposition as highlighted in Shatabhanu Singh Deo vs.

State of Bihar, 1981 BBCJ 155 (Patna) can be followed. Para

No.10 of which has already been reproduced in the preceding

para of the judgment.

[54]. Similarly in Talat Fatima Hasan's case (supra)

Gaddi or rulership and private property have two distinct

connotations. Even in the merger agreement/instrument of

accession, Article 2 of the agreement it is clearly mentioned that

Nawab would continue to enjoy the same personal rights,

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privileges, immunities and dignities and other title which he

would have enjoyed prior to the agreement. The word

'property/personal property' is conspicuously missing. Therefore,

Article 2 deals with only personal rights, privileges, dignities etc.

Article 3 deals with privy purse which would also be part of

Gaddi. Article 6 deals with succession, guarantees succession

according to law of custom to the Gaddi of the State according

to the Nawab's personal right, privileges, immunities, dignities

and title. The word 'Gaddi' would mean the throne/title of Nawab

in the context in which it has been used and the personal rights,

privileges, immunities, dignities and titles will be those as

referred to Article 2. Property has not been mentioned in Article

2 as well as in Article 6. Article 4 provides that Nawab shall be

entitled to full ownership, use and enjoyment of private

properties as distinct from State properties. Such properties

must belong to him as on the date of agreement. In view of

above, Article 6 does not relate to the properties as mentioned

in Article 4. Private properties would remain the private

properties of Nawab as a common citizen.

[55]. For the reasons recorded hereinabove, it is held that

The Raja of Faridkot's Estate Act, 1948 stood repealed in view

of Section 3 of Ordinance No.I and Ordinance No.XVI (2005 BK)

as amended by Ordinance XVIII (2006 BK) which was the result

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of valid exercise of legislative powers by Rajpramukh and

Ordinance No.XVI (2005 BK) was saved by Article 372 of the

Constitution of India as law. The Rajpramukh made a

proclamation on 24.11.1949 that the Constitution of India shall

be the Constitution of PEPSU, therefore, Ordinance No.XVI

(2005 BK) unequivocally fell in the category of laws as defined

under Article 13(3)(a) and (b) of the Constitution of India.

Therefore, The Raja of Faridkot's Estate Act, 1948 has no

application in the context of succession in the present case(s).

Rajpramukh was exercising legislative powers under

Ordinances No.I and XVI (2005 BK) and Ordinance No.XVIII

(2006 BK) as held in Dalip Kumar vs. State of Rajasthan and

Dalmiya Dadri Cement Limited's cases (supra).

[56]. Article 372 of the Constitution of India did not save

The Raja of Faridkot's Estate Act, 1948 and at the time of

commencement of Hindu Succession Act, 1956, the said Act

had stood repealed in view of Ordinances, reference of which

has already been made. Exception in terms of Section 5(ii) of

the Hindu Succession Act is not attracted in case of succession

of Rajkumari Amrit Kaur on the basis of Section 4(3) of The

Raja of Faridkot's Estate Act, 1948. The 26th Amendment of

Constitution of India has also the effect of repealing The Raja of

Faridkot's Estate Act, 1948 and succession to Raja Faridkot's

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Estate would not be governed by The Raja of Faridkot's Estate

Act, 1948 in any manner.

[57]. For the reasons recorded hereinabove, it is held that

The Raja of Faridkot's Estate Act, 1948 is not a valid

enactment after commencement of Constitution of India

and is not applicable for succession to the Estate of

deceased Raja Harinder Singh Brar by the appellant-

Rajkumari Amrit Kaur.

Now I would deal with second point i.e. Whether Law of Primogeniture is applicable in the succession of Estate of deceased Raja Harinder Singh.

[58]. On the basis of Law of Primogeniture, the appellant in

RSA No.2176 of 2018 has staked claim to the estate of

deceased Raja Harinder Singh. The discussions made in the

preceding paras would show that learned counsel for the

appellant in RSA No.2176 of 2018 has made much emphasis on

Pratap Singh vs. Sarojini Devi's case (supra) commonly

known as 'Nabha Royal Family's case', wherein proposition was

in respect of impartiblity and primogeniture in relation to

zamindari estates and other impartible estates which are to be

established by custom, but in case of sovereign ruler, they are

presumed to be existed under Article 372 of the Constitution of

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India.

[59]. With regard to the second point i.e. whether Law of

Primogeniture is applicable in the succession of Estate

of deceased Raja Harinder Singh, Mr. Vivek Bhandari,

learned counsel appearing on behalf of the appellant in RSA

No.2176 of 2018 argued in the following manner:-

(i). The Rajya Sabha debates on Section 5(ii) of the

Hindu Succession Act, 1956 clearly established that what was

under discussion in the Rajya Sabha when the provisions of the

Section 5(ii) of the Act were discussed, was the continuation of

male lineal primogeniture amongst Hindu rulers. Punjab State

Gazetteer Volume XVI(a), Faridkot State 1915 and genealogical

table spanning 14 generations would provide an evidence of the

prevalence of male lineal primogeniture in the Faridkot royal

family. Gazetteer can be consulted on the matter of public

history. Similarly, updated genealogical table spanning 18

generations, report(s) on the administration of the Punjab and

its dependencies 1870-71, 1881-82 and 1900-1901 would also

provide public documents for consideration and these

documents can be looked into on the strength of Section 74 of

the Evidence Act. A judicial notice of gazette notifications can

be taken in view of Thakore Sri Singh Jagat Singh vs. State

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of Gujarat, 1968 SCD 451 and Union of India vs. Nihar Kanta

Sen & Ors., 1987(3) SCC 465. Public documents read with

Section 5(ii) of the Hindu Succession Act, 1956 and Rajya

Sabha debates would advance applicability of rule of lineal

primogeniture to the property of Raja Harinder Singh in the

matter of succession and after his demise, his brother Kanwar

Manjit Inder Singh alone would succeed to the entire property.

(ii). On 18.08.1948, Raja Harinder Singh was the ruler of

Faridkot State. He alone was the legislature, executive and

judiciary. His word was law of the land. His last word as a

sovereign on rule on primogeniture prevalent is spelt out in The

Raja of Faridkot's Estate Act, 1948, which deals with his

personal estate and not Gaddi. Male primogeniture is in

existence between 1948-50. More than 50 Princess signed

Covenants with the Government of India and merged their

territories with India. All of them were male and entered into

similarly worded Covenants. Eight princely States namely

Faridkot, Jind, Kapurthala, Malerkotla, Nabha, Patiala, Kalsia

and Nalagarh merged together to formed 'PEPSU'. All the

States followed the male primogeniture. Even male

primogeniture is evident from reports on administration of the

Punjab and its dependancies in the years 1870-71, 1881-82 and

1900-01. Male primogeniture was prevalent in Faridkot State

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which can be gathered from the oral evidence of Rajkumari

Amrit Kaur and Maharani Deepinder Kaur, judgment(s) of Col.

H.H. Sir. Harinder Singh vs. Commissioner of Income Tax,

Punjab and Haryana, Jammu And Kashmir and Himachal

Pradesh, 1972(4) SCC 536; Pratap Singh vs. Sarojini Devi,

1994 SCC 734 and ratio of Tikka Satrujit Singh and others

vs. Brig. Sukhjit Singh and anr. (known as Kapurthala Royal

Family's case). Parliamentary debates on Section 5(ii) of Hindu

Succession Act was in furtherance of prevalence of male

primogeniture.

(iii). It is a settled principle of law that when a custom is

repeatedly recognized by Courts, it gets blended into law. Rule

of Primogeniture is applicable to the estate of former rulers of

Indian States both before and after merger. This phenomenon

has been recognized by the Courts in different precedents from

time to time. Ratio(s) of Rao Kishore Singh vs. Mussamat

Gahenbhai; His Highness Maharaja Pratap Singh's (Nabha

Royal Family''s case); Tikka Satrujit Singh and others vs.

Brig. Sukhjit Singh and anr. (Kapurthala Royal Family's

case) and Yuvraj Prithivisinhji's vs. Brij Rajkumari Sahiba's

cases (supra) are the prominent cases.

(iv). Signing of Covenant created no fresh right of the

Ruler qua the property. It only recognized/continued existing

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rights and the legal status of the Ruler qua the property retained

by him by submitting a list to the Government qua the property

both before and after signing of the Covenant. Section 5(ii) of

the Hindu Succession Act has preserved the Rule of

Primogeniture in case of Rulers and recognized the fact in

cases of former Rulers, the estates descend to single heir.

There is no reference beyond this point, therefore, reference

can be made to the documents and judgments already

produced for determination as to the nature and application of

Rule of Primogeniture.

[60]. On the other hand, Mr. Ashok Aggarwal, learned

Senior counsel on behalf of the appellants in RSA No.1418 of

2018 while refuting the arguments raised by Mr. Vivek Bhandari,

learned counsel for the appellant in RSA No.2176 of 2018

submitted as under:-

(i). The suit property is not proved to be ancestral in

nature, therefore, Rule of Primogeniture is not attracted in the

present case(s). Except the bald statement made by the

appellant in RSA No.2176 of 2018, no oral or documentary

evidence was produced to prove the factum of property being

ancestral in nature. As per law, the presumption is that the

property is presumed to be non-ancestral or self-acquired of the

party, unless it is proved by leading cogent evidence. Ancestral

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nature of property has to be proved as a fact even if, the

admission is made in respect of ancestral nature of property.

Ancestral nature of property can only be proved by way of

producing excerpt (intekhab) as per para 232 of Hindu Mulla's

Code and under the provisions of High Court Rules and orders.

In the absence of aforesaid, the property will be presumed to be

non-ancestral and self acquired property. Onus was on the

plaintiff to prove the property to be ancestral as a matter of fact.

It has special connotation and it is not sufficient to prove that

last male holder had inherited it from his grandfather and as

such it was his ancestral property. It has to be established that it

has devolved from common ancestor of the parties and the

party asserting the same has to show that the property was

common by common ancestor and it had descended to the

party or parties concerned by inheritance and in no other

manner. Tikka Bharat Inder Singh while appearing as PW-4 has

not produced any documentary evidence to prove the suit

property to be ancestral property. Agricultural land in village

Kaimbwala, agricultural land in village Mauli Jagran and

Manimajra, constructed fort known as Surajgarh Fort in

Manimajra, shops No.239/9 to 259/15 total area measuring

1617 sq. yards., Hotel site No.12 in Sector 17, Chandigarh are

acquired properties. Aforesaid properties cannot be treated to

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be ancestral properties. Even Gift deed dated 18.02.1937

executed by Rani Suraj Kaur would make out the aforesaid

point. Rani Suraj Kaur inherited the same from her mother

Shabdit Kaur which the later inherited her from her husband

Raja Bhagwan Singh. Mutation No.207 dated 30.05.1927 was

sanctioned in respect of property of village Kaimbwala, Mutation

No.768 dated 31.05.1937 was sanctioned in respect of land of

village Manimajra. As regards hotel site in Sector 17, having

area of 131398.77 sq. yards which was purchased by late Raja

Harinder Singh in an open auction on 27.09.1970 as

commercial site for Rs.13,40,000/- vide sale letter dated

09.11.1970 issued by the Estate Officer, Chandigarh

Administration, UT, Chandigarh. Heavy onus was on the plaintiff

to prove that the property is a ancestral property, but the plaintiff

has failed to prove the same.

(ii). The claim of the plaintiff-Bharat Inder Singh on the

basis of Rule of Primogeniture cannot be be accepted as the

Rule of Primogeniture was never followed in the family of Raja

Harinder Singh with regard to the property which is distinct from

Gaddi. Even no evidence has been led in this context. Rule of

Primogeniture was never followed in the family of Raja erstwhile

Faridkot State. Succession to Gaddi of Faridkot Estate was

under paramountacy of British Crown and under the sanad of

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Raja and British Crown, the successor was being recognized by

the British Crown only. The succession was not automatic,

rather it was subject to recognition by the British Crown. It was

for the plaintiff Kanwar Manjit Inder Singh to prove the Rule of

Primogeniture in the family by leading cogent evidence because

the custom cannot be presumed or extended by any

presumption or analogy. The custom has to be pleaded and

proved for which onus has to be discharged by the plaintiff to

the satisfaction of the Court in a most clear and unambiguous

manner. A judicial decision recognizing a custom may be

relevant, but these are not indispensable for its establishment.

When a custom is to be proved by judicial notice, relevant test

would be to see if the custom has been acted upon by the Court

or superior or co-ordinate jurisdiction in the same jurisdiction to

the extent that justifies the Court, which is asked to apply the

same. In assumption that persons or class of persons

concerned in that area look upon the same has binding in

relation to the circumstances similar to those under

consideration. In Rattan Lal @ Babu Lal Chunilal Samsuka

vs. Sundarabai Govardhandas Samsuka, 2018(2) R.C.R.

(Civil) 687 (SC) and MST Sukho vs. Balwant Singh, 1961

PLR 729 DB (Punjab) it was observed that the custom cannot

be extended by analogy, rather it has to be specifically pleaded

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and proved.

(iii). Will dated 27.01.1997 marked as 'Y6' executed by

Kanwar Manjit Inder Singh in respect of his inheritance would

show that Rule of Primogeniture was never followed in the

family, rather the properties were being made subject matter of

transfer. Probate proceedings were initiated by Rajkumari

Devinder Kaur (daughter of original plaintiff Kanwar Manjit Inder

Singh) on the basis of Will dated 27.01.1997 executed by

Kanwar Manjit Inder Singh in her favour. The probate case was

contested by present appellant-Tikka Bharat Inder Singh by

raising a defence that the parties are governed by custom in the

matter of succession and Rule of Primogeniture is applicable in

the family. At the same time,Tikka Bharat Inder Singh raised a

claim of inheritance in his favour on the basis of a Will dated

09.08.1999 allegedly executed by Kanwar Manjit Inder Singh in

his faovur. The probate case was decided vide judgment dated

10.03.2013 and the Will dated 27.01.1997 was upheld and the

claim of Tikka Bharat Inder Singh on the basis of Rule of

Primogeniture was rejected.

(iv). Prior to merger agreement, late Raja Harinder Singh

was a sovereign ruler and there was no distinction between

state properties and private properties. Prior to merger of the

State, the Raja was a sovereign authority and there was no

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distinction of public or State properties on the one hand and

private properties of the sovereign on the other hand. The

properties in question were earmarked by late Raja as his

personal properties for which he was competent to do so as a

sovereign under the Covenant and the Government by

accepting the list of properties submitted by the ruler as

personal properties. Para nos.61, 63, 64, 67 and 69 of

Revathinnal Balagopala Varma's case (supra) would show

that with the merger of Faridkot State with dominion of India,

Rule of Primogeniture, if any, ceased to exist on account of Act

of the State and the properties became absolute properties of

the ruler. The Covenant or merger was entered into between the

then Ruler of Faridkot State with dominion of India on

05.05.1948 (Ex.D-6) and there was no clause/Article

recognizing or guaranteeing the continuation of any such Rule

of Primogeniture. As per Article XII(3) of the said Covenant, if

any dispute arises as to whether any item or property is the

private property of the ruler or State property, it shall be referred

to such person as the Government of India may nominate in

consultation with the ruler of State concerned as the case may

be and the decision of that person shall be final and binding on

all the parties concerned provided that no such dispute shall be

so referable after 31.12.1948.

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(v). As per list of private properties supplied by late Raja

Harinder Singh, the same contained all details of immovable

properties situated outside Faridkot and within Faridkot State,

securities, cash balances and properties to be transferred to

Raja Harinder Singh. In response to the letters/letter issued by

late Raja, the Rajpramukh of PEPSU vide letter dated

01.08.1949 (Ex.DW3/12) sent the list of properties declared by

the Raja to be his private properties. The Government of India

vide letter dated 07.04.1952 (Ex.D3/19) declared Faridkot

House New Delhi as private property of late Raja Harinder

Singh besides other properties. Under Article XII(1) of the

Covenant, full ownership of all the private properties declared by

the Rajpramukh to be private properties of Raja and Raja was to

be the absolute owner of such properties and nobody else can

make any claim to the same. Upon approval of the list by

Rajpramukh, the properties in the hands of the Ruler became as

absolute properties and he was competent to deal with the

same in the manner he liked. The properties held by erstwhile

sovereign/ruler after surrendering his sovereignty to

Government of India in pursuance of a Covenant, were his

personal properties and the other members of royal family had

no claim to the same. Ratio of Revathinnal Balagopala

Varma's case (supra), particularly paras No.69 & 81 to 86

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would be attracted.

(vi). The suit properties which were approved by the

Rajpramukh under the terms of Covenant (Ex.D-6) as private

properties of Raja and after such approval, the properties

became absolute properties of the Ruler and he was treating the

same as his private and individual properties. Various tax

returns were submitted by the late Raja before the Tax

Authorities claiming the suit properties to be his individual

properties i.e. Ex.DW3/22 to Ex.DW3/36. The Covenant

between the ruler and the Indian Government is an act of State

and, therefore, no action in the Court can be founded by any

citizen of a new State which come into existence unless the

successor estate has otherwise recognized such a right. By the

aforesaid Act of State, sovereign powers were taken away by

the dominion in respect of territory which was not till then a part

of its territories either by conquest, treaty or accession or

otherwise. Sovereign power including the right to legislate for

that territory and to administer it, may be acquired when territory

itself emerging in a new State, has become a part of the State,

necessary authority to legislate in respect of that territory may

be obtained by a legislation and that would be an Act of State

and derive its authority not from a municipal law, but from ultra

legal or supra legal means. Municipal Courts have no power to

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examine the proprietary or legality of an Act which comes within

the ambit of an Act of State. Whether the Act of State has

reference of public right or private right, it is beyond the

jurisdiction of procedural Courts to investigate the rights and

wrongs of the transaction and to pronounce upon them and,

therefore, such a Court cannot interfere its decision, if any.

(vii). Reference to para nos.11, 13 and 14 of Dalmiya

Dadri Cement Limited's case (supra), would show that the

Covenant is an Act of State. In the new set up, residents do not

carry with them the rights which they possessed as subjects of

the ex-sovereign and that has subjects of a new sovereign, they

have only such rights as are guaranteed or recognized by them.

The impartible estate or Hindu Undivided Family (if any) existed,

disappeared on account of the State Act, the territories of former

State of Patiala have emerged into territories of India and all the

joint Hindu family property or impartible estate which existed

prior to accession, if at all, have ceased to exist as such. As

such, State of Patiala having been emerged into Union of India,

the impartible estate or Hindu Undivided Family, if any existed,

disappeared on account of an Act of State.

(viii). Reference to Raja Raghavinder Singh vs. State of

Punjab, 1973 PLR 139 and Ambicaprasadsinh Jayra

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Purajsinh vs. Manohar Sinhji, 1998 Online Gujarat 768

would show that grant of private properties to the ruler was an

act of State and, therefore, it cannot be said that the property so

given to the ruler shall preserve character which it had prior to

the entering into Covenant by the Ruler with the Government of

India. With the merger into dominion of India, the character of

the properties had ceased to exist i.e. ancestral or impartible

character on account of merger into the dominion of India and

the Rule of Primogeniture, if any, had also ceased to exist on

account of merger of Faridkot State with the dominion of India.

(ix) The guarantee under the Covenant was only with

regard to succession to Gaddi and not to the private properties.

The right to private properties of the last ruler depends upon the

personal law of succession to the private properties. Article XIV

of the Covenant (Ex.D-6) only recognized the succession to

Gaddi and not to the private properties as mentioned and

approved in Article XII of the Covenant. Gaddi and private

properties are distinct from each other and it cannot be said that

Gaddi includes private properties. Article XIV of the Covenant,

would show that succession according to law and custom to the

Gaddi of each covenanting State and to the personal right,

privileges, dignities and titles of the Ruler thereof were

guaranteed. However question of disputed succession in

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respect of a covenanting State which arise after inauguration of

the Union, shall be decided by the council of rulers after

referring it to a Bench consisting of all the available judges of

High Court by the Union and in accordance with the opinion

given by the said Bench. Article XIV of the Covenant does not

extend the assurance of guarantee to private properties given

under Article XII of the Covenant. The guarantee with regard to

succession, according to law of custom under the Covenant was

given to each covenanting States and to the personal rights,

privileges, dignities and title of the Ruler thereof. There is no

guarantee with regard to the succession according to law and

custom qua the private properties. The Government never

guaranteed succession according to law and custom to the

private properties of the Ruler.

(x). The White Paper on Indian States published by the

Government of India, Ministry of States was issued on

05.07.1948. According to Part XI (Indian States under the new

Constitution) under the head "guarantees regarding rights and

privileges" only guarantees rights and privileges and not the

succession to the property. Further private properties cannot be

treated as a right or privilege. Further reference can be made to

Part VIII "Settlement of Rulers" private properties. The aforesaid

two provisions have been reflected in the White Paper, wherein

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it has been stated that prior to Covenants, there was no

distinction between private and state property of the Ruler. In

the White Paper it has been mentioned that upon integration of

States, The Rulers were required to furnish a list of immovable

properties, securities and cash balances etc. claimed by them

as private property and upon approval of the same, Ruler was

entitled to full ownership and enjoyment of the private properties

as distinct from state properties.

(xi). In Sudhanshusekhar Singh Deo vs. State of

Orissa, AIR 1961 SC 196 (Five Judges Bench) and State of

Bihar vs. Sir Kameshwar Singh, AIR 1952 SC 252 (Five

Judges Bench) it has been held that right to private properties

of the last ruler depends upon the personal law and succession

to the private properties. The recognition of the Ruler is a right

to succeed to the Gaddi of the Ruler. This recognition of

rulership by the President is an exercise of political power

vested in the President and is thus an instance of purely an

executive jurisdiction of the President. This Act of recognition

and rulership is not associated with the Act of recognition of

right to private properties in any manner. As far as privy purse of

Ruler is concerned, Article 291 of the Constitution of India

provided that the payment of any sum which has been

guaranteed to any Ruler of a State as a privy purse shall be

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charged/paid out of the consolidated fund of India. The privy

purse is not an item of private property to which the Ruler

succeeds. Ratio of Kunwar Shri Rajendra Singh vs. Union of

India, AIR 1970 SC 1949 (Five Judges) would be attracted.

(xii). Under the Articles of Covenants there is no specific

reference to succession to private properties. The only

reference is of recognition of succession. According to law of

custom to the Gaddi of the State and to the personal rights,

privileges and dignities and title of the Ruler. The successor,

therefore, would be entitled not only to succeed to Gaddi but

also to the personal rights, privileges and dignities of the late

Ruler. Right to private property has nothing to do with the

succession or personal rights, privileges and dignities of the

Ruler. One person may as a heir succeed to the private property

and another person may be recognized as a heir to the Gaddi.

Both are two distinct analogies.

(xiii). Reference to the Division Bench judgment of Andhra

Pradesh High Court in Ahmadunnia Begum vs. Union of

India, AIR 1969 AP 423 DB and Partapsinhji N. Desai vs.

Commisioner of Income Tax, 1983 (139) ITR 77 Gujarat DB

would show that the privileges guaranteed by the Covenant of

merger are personal privileges of a ex-ruler and those privileges

do not extend to the personal property of the Ruler. The

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guarantee or assurance is in the context of personal rights,

privileges and dignities of the Ruler and it does not extend to

personal property which is different from personal rights. Right

to private properties of the last Ruler depends upon personal

law of succession to the said private properties.

(xiv). Section 4 of the Hindu Succession Act has abrogated

all the Rules and laws of succession hitherto applicable to

Hindus, whether by virtue of any text or rule or Hindu Law or any

custom or usage having the force of law in respect of all matters

dealt within the act. Any custom or usage like primogeniture in

force ceased to have any effect after commencement on

17.06.1956. This Act also has precedence over any other law

contained in any central or states legislation in force

immediately before it came into force and so far as such

legislation is inconsistent with the provisions of this Act. Ratio(s)

of Pritam Singh vs. Assistant Controller of Estate Duty,

1976 PLR 342 (Punjab) (Full Bench and Guru Amarjit Singh

vs. Commissioner of Wealth Tax, 2002(2) R.C.R. (Civil) 418

(DB) would be attracted. Sections 4 and 5 of the Hindu

Succession Act, 1956, provided over riding effect whereby bare

perusal of the Act would show that any custom or usage like

primogeniture as part of Hindu law in force shall cease to have

any effect after commencement of the Act. Section 5 stands

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exception to Section 4 which applies to any estate which

descends to a single heir as indicated in the provision. A bare

perusal of Section 4 would indicate that any custom or usage as

part of Hindu Law in force will cease to have any effect after the

enforcement of Hindu Succession Act with respect to any matter

for which provision is made in the Act. If rule of lineal

primogeniture in an estate left by deceased is a customary one,

it will certainly cease to have any effect. Section 5 of the Act

stands an exception to Section 4 and in inter alia provides that

the said Act will not apply to any estate which descends to a

single heir by the terms of Covenant or agreement entered into

by the Ruler of any Indian State with Government of India or by

the term of any enactment passed before commencement of

this Court. Ratio(s) Maharaj Shri Manvendrasinhji Ranjit

Singh Jadeja vs. Rajamata Vijaykunverba, 1998 SCC Online

281 (Gujarat); Bhaiya Ramanuj Pratap Deo vs. Lalu

Maheshanuj Pratap Deo, AIR 1981 SC 1937; Commissioner

of Income Tax vs. Bhawani Singhji, 2018 Online 11723 Delhi

and Pratapsinhji N. Desai vs. Commissioner of Income Tax,

1983(139) ITR 77 (DB) (Guj.) would be attracted. No such

proposition is involved in favour of the plaintiff Manjit Inder

Singh deceased through Bharat Inder Singh.

(xv). The expression 'estate' as appearing in Section 5(ii)

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of the Hindu Succession Act is used with regard to only Gaddi

and other titles and privileges of the Ruler and not in respect of

private properties of the Rulers. Section 5(ii) of the Act provides

that the Hindu Succession Act will not apply to any estate which

descends to a single heir by the terms of any Covenant or

agreement entered into by the Ruler of any Indian State with the

Government of India. In the instant case, the Covenant entered

into by the Ruler of Faridkot does not contain any provision that

the private property (as distinct from State property) would

descend to a single heir. Only guarantee was of succession to

the Gaddi and not to private property. In view of above, Section

5(ii) of the Act is not attracted in the present case. When

Section 5(ii) is not applicable to the provisions of the Covenant,

cannot be enforced by the municipal courts as the jurisdiction of

the Court is barred under Article 363 of the Constitution of India.

For the applicability of Section 5(ii) of the Act, pre-requisites

envisaged have to be fulfilled. The Covenant does not indicate

that the estate stands guaranteed to a single heir by the terms

of Covenant. Ratio of Commissioner of Income Tax vs. Her

Highness Maharani Vijaya Raje Scindia, 1994 (208) ITR 38

(Bombay DB) would be attracted.

(xvi). By virtue of 26th Amendment of India coming into

force, it invoked all the aforesaid Covenants regarding

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preservation of succession on the basis of Rule of

Primogeniture which came to an end. The hurdle against

applicability of Act of 1956 by virtue of Section 5(ii) of the Act no

longer survived. The guarantees and assurance under the

Covenants were guaranteed qua Article 362 of the Constitution

of India when the Constitution of India adopted Article 291 of the

Constitution provided for payment of privy purse. Vide 26th

Amendment of 1971, Article 362 and Article 291 have been

omitted from the Constitution of India and the concept of

rulership and privy purse were abolished. The effect of this

amendment is that after this amendment the ruler became an

ordinary citizen of India. Thus effect of Covenant came to an

end on coming into force of 26th Constitutional Amendment.

(xvii). The Parliament also enacted Rules of Indian States

(Abolition of Privileges) Act, 1972 for de-recognition of Rulers of

Indian States. The abolition of privy purses and the privileges of

the Rulers by virtue of this Act, all the Rulers were

de-recognized as Rulers. Raja Harinder Singh was also

de-recognized as Ruler of Faridkot by the letter of President

dated 06.07.1970 (Ex.D-59). This fact has been admitted by the

plaintiff himself in the following manner:-

"Raja Harinder Singh ceased to be the Ruler of Faridkot Estate on 20.08.1948. All the personal

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privileges/titles of the Ruler of erstwhile Faridkot State were abolished by the Government of India. After amendment of the Constitution to that effect in 1972. Provinces were de-recognized in 1972. The privy purses/privileges were also abolished in 1972 through amendment of the Constitution."

(xviii). With the coming into force the 26th Amendment, the

last ruler no longer remained recognized as ruler. He became

an ordinary citizen. The Act of 1956 can be said to be an

municipal law for the purpose of applicability on all the citizens.

The hurdle against applicability of succession act by virtue of

Section 5(ii) no longer survived. The effect of Covenant came to

an end on coming into force of 26th Amendment of the

Constitution of India on 28.12.1971 by which Articles 291 and

362 were omitted and Article 363-A was inserted. By virtue of

the said Constitution of India, the Constitution ended within a

guarantee regarding succession to Gaddi. In terms of that,

Article XIV of the Covenant came to an end as such on that date

i.e. 28.12.1971, the applicability of Rule of Primogeniture, if any

also came to an end.

(xix). The holder of impartible estate can alienate the

estate by way of Will. The plaintiff Kanwar Manjit Inder Singh

himself executed a Will. The only limitation of this power would

flow from the family custom to the control or from the condition

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of a tenure which has the same effect. The holder of an

impartible estate has power of alienation not only by transfer

inter vivos but also by Will. Mere absence of any instance of

alienation would not be any evidence of custom. Ratio(s) of

Thakore Shri Vinayasinhji vs. Kumar Shri Natwar Sinhji, IR

1988 SC 247 and Sri. Protap Chandra vs. Raja Jagdish

Chandra, AIR 1297 PC 159 would be attracted.

(xx). The Law of primogeniture is unconstitutional being hit

by Article 14 of the Constitution of India. The right in a property

which is vested in terms of provisions of Hindu Succession Act

cannot be taken away except in terms of provisions of another

statute which would have an overriding effect. Such special

statute could be a complete Code which shall ordinarily have a

later statute and it must contain a non-obstante clause. Law of

Primogeniture is no more applicable in India and such a law is

unconstitutional being hit by Article 14 of the Constitution of

India. Ratio(s) N. Padmamma vs. Ramakrishna Reddy,

2008(15) SCC 517 and Anu Garg vs. Hotel Association,

2008(1) R.C.R. (Civil) 240 (SC) would be attracted. The Raja

has also treated the properties in village Kaimwala, Mauli Jagra

and Manimajra and hotel site in Sector 17 as his individual

properties. In the absence of any evidence of ancestral nature

of the properties, these properties are personal properties of

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late Raja Harinder Singh and would be governed by normal

law of succession. No evidence has been led that Jat Sikh in

Punjab were governed by custom. The latest observation of

the Hon'ble Apex Court in Talat Fatima Hasan's case

(supra) in view of consideration made in para nos.38, 40, 41,

43, 44, 46 and 47 of the judgment would show that the

succession is to be governed by personal law of succession

and not by Rule of Primogeniture in any manner.

[61]. Mr. M.S. Khaira, learned Senior counsel appearing

on behalf of the appellant-Rajkumari Amrit Kaur in RSA

No.2006 of 2018 refuted the claim of the plaintiff-Bharat

Inder Singh on the same grounds and contended that Rule

of Primogeniture is unsustainable.

[62]. Before deciding the validity of Law of Primogeniture,

effect of judgment dated 22.07.1996 passed by the UK

High Court Justice, Chancery Division relating to

Faridkot Family Settlement Trust is also to be seen.

[63]. Late Raja Harinder Singh made the Faridkot Family

Settlement Trust (Ex.PX-25 and Ex.PX-26) in 1955. All the four

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children were beneficiaries therein. The aforesaid Trust

provided income to all the four children and was having two

components. Income of one portion was to be paid to Raja's son

Tikka Harmohinder Singh during his life time. The income of the

second portion was shared equally amongst three daughters.

After the death of Rajkumari Mahipinder Kaur (youngest

daughter of Raja), her share of income was being shared

equally between two surviving sisters i.e. Maharani Deepinder

Kaur and plaintiff-Rajkumari Amrit Kaur. The income which was

being paid to late Tikka Harmohinder Singh is being paid to the

plaintiff on the basis of Rule of Primogeniture as applicable to

the dynasty. Now question arises whether decision regarding

applicability of rule of primogeniture as held by UK High Court of

Justice, Chancery Division would apply to the present case,

wherein applicability of primogeniture is being pressed by the

appellant in RSA No.2176 of 2018. Learned Senior counsel in

RSA No.2006 of 2018 also claims that the judgment being

conclusive would advance the case of Rajkumari Amrit Kaur qua

her claim to succession in India as well.

[64]. Evidently, the judgment dated 22.07.1996 passed by

the aforesaid Court at UK binds the parties to the litigation and

that was not in respect of inheritance of the estate of Raja after

his demise in favour of surviving children. The said litigation is

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limited to the Trust property to the extent of share of late Tikka

Harmohinder Singh. The said judgment cannot be read in

piecemeal. The executory mechanism attached to the judgment

dated 22.07.1996 cannot be appreciated in the present context

as the said judgment has been passed by a foreign Court. The

question whether United Kingdom (UK) is a reciprocating

country as envisaged in Section 44-A CPC or not would require

determination of point in accordance with law. Whether that

judgment is executable in the present context or not is a

question which is not covered under the present litigation. The

Chancery judgment is an ex parte judgment which was merely

for direction to the trustees. It is only based upon a legal opinion

of a Lawyer. The Judge while delivering the judgment has

himself observed that the party would be free to litigate on the

issue amongst themselves and the proper Court for the decision

on the issue of primogeniture was the Court in India. In view of

above, the judgment has no legal value and has no applicability

in the present case(s), as no right flows from it qua the Estate in

India involved in these cases. Kanwar Manjit Inder Singh was

not even party to the aforesaid case. In the reported case i.e.

1972(4) SCC 536, wherein there is a reference of Trust deed

dated 01.04.1955, which was executed by the Ruler and

reference was made to Rule of Primogeniture. It is completely

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misplaced as the Trust Deed was in respect of property situated

in UK only and it does not talk about any other properties in

India. The said Trust was executed on 01.04.1955 i.e. prior to

the commencement of Hindu Succession Act, 1956. Therefore,

Rule of Primogeniture, if subsisting stood abrogated.

Furthermore, in the said judgment, there was neither any issue,

nor any finding with regard to the applicability of Rule of

Primogeniture in the family of Ruler.

[65]. Under Section 13 CPC, a foreign judgment shall be

conclusive as to the matter thereby directly adjudicated upon

between the same parties or between the parties under whom

they or any of them claim litigating unde the same title except:-

(a) Where it has not been pronounced by a court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;

(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;

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(e) Where it has been obtained by fraud;

(f) Where it sustains a claim founded on a breach of any law in force in India."

[66]. Whether the aforesaid judgment dated 22.07.1996

would fall strictly under the domain of Section 13 CPC, would

require to meet all ingredients as narratted hereinabove.

Evidently while paying share of late Tikka Harmohinder Singh in

favour of the plaintiff on the basis of application of Rule of

Primogeniture, as applicable to the dynasty, does not mean that

rule of primogeniture is applicable to the estate of Raja.

Different covenants and interpretation of law based on

amendments carried out in Constitution of India were not the

subject matter of interpretation before the UK High Court of

Justice, Chancery Division. The judgment dated 22.07.1996

passed by the said Court does not advance any such

interpretation of applicability of Rule of Primogeniture in the

present case to bind the parties to the litigation as suggested by

the appellant in RSA No.2006 of 2018.

[67]. In view of above, the only irresistible conclusion is

that the judgment dated 27.07.1996 passed by the UK High

Court of Justice, Chancery Division has no application in

the context of applicability of Rule of Primogeniture in the

present case.

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[68]. Again before adverting to the validity of Law of

Primogeniture, it would also be necessary to appreciate the

effect of Will dated 27.01.1997 executed by Kanwar Manjit

Inder Singh (brother of the Raja).

[69]. A registered Will dated 27.01.1997 was executed by

Kanwar Manjit Inder Singh, vide which earlier Will dated

05.09.1995 relating to his property was cancelled. Vide the

aforesaid Will, the entire movable and immovable properties

situated wherever in India or outside India were willed away in

the following manner:-

(a) Out of agricultural land consisting of

Khasra Nos.69 (9-12), 68 (20-8), 65 (20-08), 65 (20-

08), 93 (20-8), 94(22-9), 91 (16-07), 92 (16-0), 68

(16-0), 67(16-0), 70 (7-9), 3073/1507 (10-2), 1080

(14-11) measuring 189 Kanals 10 Marlas and land

measuring 95 Marlas 18 Marlas consisting of Khasra

Nos.71(5-2), 72(16-0), 80 (16-0), 81 (16-0), 90 (14-7),

82 (16-0), 89 (12-9) situated at village Dhudi, Tehsil

and District Faridkot would be inherited by the

daughter of testator i.e. Rajkumari Devinder Kaur and

grand daughter Heminder Kaur/daugher of Rajkumari

Devinder Kaur in equal shares.

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(b) Out of agricultural land measuring 82

Kanals 19 Marlas consisting of Khasra No.1061 (16-

11), 1062 (18-9), 1071 (13-16), 1070 (13-16), 1037

(20-7) situated in Village Dhudi, Tehsil and District

Faridkot would be inherited by grand son of the

testator namely Amarinder Singh along with all

buildings constructed thereon at present or in future.

(c) Out of agricultural land measuring 73

Kanals 15 Marlas comprising in Khasra No.88 (10-

11), 83 (16-0), 78 (10-0), 74 (10-16), 73 (16-8) and

79 (10-0) situated in village Dhudi, Tehsil and District

Faridkot would be inherited by the grand son of the

testator namely Ravi Inder Singh along with all

buildings constructed thereon at present or in future.

(d) Land measuring 91 Kanals comprising in

Khasra Nos.86 (16-1), 85 (16-0), 76 (11-13), 75 (6-

13), 77 (16-0), 84 (16-0) and 87 (16-13) situated in

village Dhudi Tehsil and District Faridkot would be

inherited by son of the testator namely Bharat Inder

Singh. He will inherit this land as limited owner and

would not be entitled to sell or mortgage the same

and would only be entitled to income from this land.

After his death, the agricultural land shall be inherited

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by two grand sons namely Amarinder Singh and Ravi

Inder Singh in equal shares. In case any of the grand

sons pre-deceased Tikka Bharat Inder Singh, the

same would be inherited by the son of the grand son,

who will pre-deceased and if no heir is there, the

same shall be inherited by the surviving grand son

and his son(s)/daughter(s).

(e) The residential house situated at Faridkot

known as Council House in Khasra No.3253/2 would

be inherited by son of the testator namely Tikka

Bharat Inder Singh, grand sons namely Amarinder

Singh and Ravi Inder Singh in equal shares.

However, Tikka Bharat Inder Singh would inherit his

share in the said house as limited owner and he

would be entitled to live in it during his life time and

after his death, his share would devolve upon two

grand sons namely Amarinder Singh and Ravi Inder

Singh

(f) All deposits in Indian bank and foreign

banks shall be inherited by daughter of the testator

namely Rajkumari Devinder Kaur. The other

provisions were already made in respect of

immovable properties.

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(g) It was recited in the Will itself that Tikka

Bharat Inder Singh son of the testator was not having

cordial relations with him and he was not happy with

him. However, the testator observed that it would not

be proper to mention the reasons for not con-cordial

relations of his son with him, however he made

provision for his son as per his parental duty. The

farm machinery would be inherited by his son Tikka

Bharat Inder Singh. Any other movable or immovable

property owned by the testator, apart from the

property mentioned earlier shall be inherited by the

daughter of the testator namely Rajkumari Devinder

Kaur.

[70]. Perusal of the Will would show that Tikka Bharat

Inder Singh was given limited rights in the properties. Rajkumari

Devinder Kaur daughter of Kanwar Manjit Inder Singh filed a

petition under Section 276 of Indian Succession Act for grant of

probate of Will dated 27.01.1997 against general public and

Tikka Bharat Inder Singh. The Probate case was contested by

Tikka Bharat Inder Singh on the ground that the Will dated

27.01.1997 was a forged and fictitious document. He relied

upon Will dated 09.08.1999 executed by Kanwar Manjit Inder

Singh in his favour. Probate Court i.e. District Court, Chandigarh

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vide order dated 10.05.2013 held that the parties are not

governed by primogeniture. Tikka Bharat Inder Singh could not

prove execution and validity of Will dated 09.08.1999, whereas

execution and validity of Will dated 27.01.1997 were duly

proved. The Court also found that if the deceased had executed

the Will as propounded by Tikka Bharat Inder Singh i.e. Will

dated 09.08.1999, the same would have the recital of

cancellation of Will dated 27.01.1997 executed by testator in

favour of Rajkumari Devinder Kaur. In the absence of any such

recital, the Court found that the execution of Will dated

27.01.1997 was duly proved.

[71]. Rajkumari Devinder Kaur had already expired at the

time of decision dated 10.05.2013 in the aforesaid probate

case. Her daughter Heminder Kaur was impleaded as her legal

heir by the High Court vide order dated 01.05.2009. Letter of

administration qua movable and immovable properties as

detailed in the Will dated 27.01.1997 was ordered to be issued

in favour of Heminder Kaur on filing of required stamps/fee after

obtaining market value of the said movable and immovable

properties from the concerned authorities. Appeal is statedly

pending against the said judgment without any interim stay. It is

apparent that in the Will dated 27.01.1997, Tikka Bharat Inder

Singh was not given ownership rights in any property except life

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interest in few properties. His claim qua the property of Raja

Harinder Singh on the basis of rule of primogeniture would not

survive.

[72]. Even if the judgment of probate granting probate of

Will in favor of Rajkumari Devinder Kaur through Ms. Heminder

Kaur is a judgment in rem in terms of Section 41 of the Indian

Evidence Act, it will bind the parties in the context of properties

contained therein. The Will in question was in respect of private

properties of Kanwar Manjit Inder Singh. That has nothing to do

with the properties of Raja. Whatever Ms. Heminder Kaur could

get, that was also the part of private properties of Kanwar Manjit

Inder Singh and that had nothing to do with Gaddi or properties

of Late Raja Harinder Singh. The civil suit on re-numbering as

4193 dated 31.08.2010 from original Civil Suit No.75 of 1992 is

based on rule of primogeniture. The entire claim is rested upon

the aforesaid doctrine/phenomenon. Kanwar Kanwar Manjit

Inder Singh died on 05.10.1999 and thereafter his son Bharat

Inder Singh and his daughter Rajkumari Devinder Kaur were

brought on record as legal representatives of plaintiff. Rajkumari

Devinder Kaur died on 06.01.2009 and her daughter Ms.

Heminder Kaur was impleaded as legal representative of

deceased Rajkumari Devinder Kaur. During trial of the case, no

independent arguments were addressed on behalf of Ms.

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Heminder Kaur. Bharat Inder Singh also died during pendency

of the appeal. His eldest son Kanwar Amarinder Singh was

brought on record as legal representative. Kanwar Amarinder

Singh claims inheritance of the entire property of the Raja

Harinder Singh on the basis of Rule of Primogeniture, being the

eldest male member of the family. Rajkumari Heminder Kaur

has no stake in the case as she cannot get anything as rule of

primogeniture also excludes the female. Rajkumari Heminder

Kaur, filed an application for dismissal of the appeal. Filing of

the application is attributed to the trustees of Maharwal Khewaji

Trust against Bharat Inder Singh and his legal representative

Amarinder Singh in order to create some unwarranted obstacle

in the case, despite knowing the fact that Rajkumari Heminder

Kaur has no entitlement in the property.

[73]. It has also come on record that the Trustees

throughout sponsored various litigations on behalf of Rajkumari

Heminder Kaur by incurring expenses from the Trust's fund

against Tikka Bharat Inder Singh. Ex.PX-103 to Ex.PX-105 are

the instances showing the payments made from the Trust's

fund. The transaction mentioned in the application dated

15.02.2014 also proved the fund utilization details which were

brought on record on 01.03.2014. From these instances, it was

apparent on record that the Trust had made payments of legal

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expenses of one Rajkumari's case for the dates of hearing on

22.10.2012, 15.12.2012 and 21.12.2012 in the amount of

Rs.16,500/-, Rs.16,500/- and Rs.27,000/- respectively. In the

probate case also, the legal experts were paid by the Trust. It

has been brought on record that the Maharwal Khewaji Trust

had sponsored the litigation against Tikka Bharat Inder Singh

out of the Trust's fund. If Rajkumari Heminder Kaur had any

grievance against the judgment of the trial Court, she could

have challenged the same in appeal by paying requisite court

fee. Admittedly, she has not done so, therefore, she was not

competent to seek dismissal of the appeal by filing any

application.

[74]. Evidently, the property of Kanwar Manjit Inder Singh

is distinct from the property of Raja Harinder Singh. The claim to

rule of primogeniture viz-a-viz. the property of Raja/former ruler

of Faridkot State, who was signatory to the Covenant with

Government of India and who had submitted a list of private

properties in accordance with the Covenant as approved by the

Government of India, was distinct, whereas Kanwar Manjit Inder

Singh was not the Ruler of former Indian State, therefore,

separate and distinct properties cannot be made subject matter

of any such plea of primogeniture. The litigation of Rajkumari

Heminder Kaur was evidently sponsored by the Trust.

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[75]. The details regarding withdrawal of the amount from

the Bank and the expenditure for the period 01.01.2014 to

31.01.2014 have been proved at the instance of Trust and the

amount was admittedly paid towards litigation of probate

between Rajkumari Devinder Kaur and Bharat Inder Singh.

Kanwar Manjit Inder Singh had owned some private properties

which were not subject to Section 5(ii) of the Hindu Succession

Act. The dispute in that context cannot be treated to be a

disputed covered under rule of primogeniture because the

estate of Kanwar Manjit Inder Singh was not subject to Section

5(ii) of the Hindu Succession Act and the Will executed by

Kanwar Manjit Inder Singh was under challenge by Rajkumari

Devinder Kaur vide separate case against her brother Bharat

Inder Singh.

[76]. In view of aforesaid position, Will dated 27.01.1997

probated by the competent Court does not advance any

such plea regarding validity of Rule of Primogeniture in any

manner. The findings recorded in the order dated 10.05.2013

passed by the Probate Court are in respect of the scope of Will

dated 27.01.1997 executed by Kanwar Manjit Inder Singh which

was in respect of his private property which is distinct than the

properties of late Raja Harinder Singh. The findings in the order

dated 10.05.2013 recorded by the probate Court/District Court,

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Chandigarh do not in any manner advance any such case of

validity of Rule of Primogeniture.

[77]. In view of aforesaid factual position, the arguments

raised by Mr. Arun Jain, learned Senior counsel duly assisted by

Mr. Amit Jain, Advocate cannot be accepted in the context of

the case. Rajkumari Heminder Kaur has no subsisting right

in the property of late Raja Harinder Singh. The application

filed by her for dismissal of the appeal has no legs to stand. The

same is dismissed.

[78]. Now coming to the conclusion whether Law of

Primogeniture is applicable in the succession of Estate

of deceased Raja Harinder Singh, it can be seen that

admittedly appellant in RSA No.2176 of 2018 has claimed the

property to be the ancestral property in order to attract the Rule

of Primogeniture which according to him exists on presumptory

notion in case of rulers. Ancestral nature of the property can be

proved only by way of producing Excerpt (Intekhab)/pedigree

table, as per requirement of Volume 1, Chapter 9, Rules 5 & 6

of High Court Rules and Orders, and as per para No.232 of

Mullah's Law. The properties situated in village Kaimbwala,

Mauli Jagran and Manimajra-fort known as Surajgarh Fort

Manimajra and Hotel site No.12 in Sector 17, Chandigarh are

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proved to be self acquired properties. No evidence has been led

by the plaintiff/appellant to discharge the onus to show that the

properties have descended from common ancestor and only by

rule of descent and not otherwise. Appellant while appearing as

PW-4 has not adduced any documentary evidence to show that

the properties in question are ancestral properties. The

succession to Gaddi of the Faridkot Estate was under the

paramountcy of the British Crown. The successor was being

recognized by the Britishers only and the same was not

automatic, rather it was subject to the approval/recognition by

the British Crown. Primogeniture is not codified law. The alleged

custom i.e. rule of primogeniture has to be pleaded and proved

by way of evidence. The person who relies upon the existence

of custom/primogeniture has to discharge the onus of proving

the same to the satisfaction of the Court in the most innocuous

manner. The custom cannot be extended by analogy. Specific

custom has to be pleaded with reference to necessary

particulars in the pleadings and thereafter to be proved by the

asserting party by way of cogent and admissible evidence.

[79]. Prior to merger agreement, the property in question

was held by the late Raja as sovereign and there was no

distinction between the State and the private properties, as

sovereign was owner of all the properties. After the merger

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agreement and accession to dominion of India, the properties

were earmarked by late Raja as his personal properties for

which he was competent to do so under the Covenant. After

approval of the properties in the list submitted by the Raja as his

personal properties, the same ceased to be State properties.

Reference can be made to para nos.61, 63, 64, 67 and 69 of

Revathinnal Balagopala Varma's case (supra).

[80]. On merger of Faridkot State with dominion of India,

Rule of Primogeniture, if any, ceased to exist on account of Act

of State. In the Covenant dated 05.05.1948, there is no

clause/article which either recognizes or guarantees the

continuance of alleged Rule of Primogeniture. The Covenant

has been reproduced in the White Paper. As per Article XII of

the Covenant, the Ruler of each Covenanting States was

entitled to the full ownership, use and enjoyment of all the

private properties as distinct from the State properties,

belonging to him on the date of his making over the

administration of the State to Rajpramukh. As per clause 2 of

Article XII, the Ruler of each covenanting States was required to

furnish an inventory of all the immovable properties, securities

and cash balances to the Rajpramukh before 20.09.1948. This

inventory is in the context of immovable properties, securities

and cash balances held by the Ruler as private properties. On

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approval of list by Rajpramukh, the properties in the hands of

the Ruler became his absolute properties and he was entitled to

deal with his properties in the manner he liked. Once the

properties have been retained by the Ruler as his personal

properties after surrendering the sovereignty to Government of

India, pursuant to Covenant, then the properties held by him are

his private properties and other members of royal family had no

claim. Reference can be made to para nos.69 & 81 to 86 of

Revathinnal Balagopala Varma's case (supra).

[81]. After submission of list and approval of the same by

Rajpramukh, the Raja treated the suit properties to be his

private and individual properties, which is apparent from various

Tax Returns submitted by him before the Tax Authorities,

claiming the suit properties to be his individual properties in view

of Ex.D3/22 to Ex.D3/36. The Covenant entered into by the

Ruler is an Act of State between two sovereigns. No action in a

Court of law can be founded by any citizen of a new State. In

the new set up, the residents do not carry with them the rights

which they possessed as subjects of the ex-sovereign and that

as subjects of new sovereign, they have only such rights as are

guaranteed or recognized by him. Reference can be made to

para nos.11, 13 and 14 of Dalmiya Dadri Cement Limited

case (supra).

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[82]. The impartible estate of Hindu Undivided Family, if

any, existed prior to Covenant entered by the Ruler disappeared

on account of an Act of the State. The territories of former State

of Patiala have merged into the territories of India and all the

joint Hindu family property/impartible estate, which existed prior

to the accession have ceased to exist on account of Act of the

State. The grant of private properties to the Ruler was an Act of

State and such properties cannot maintain the earlier character

which was prior to entering into Covenant by the Ruler with

Government of India. Impartibility of Estate ceased to exist on

account of merger into the dominion of India and, therefore,

Rule of Primogeniture, if any, ceased to exist on account of

merger of Faridkot State with dominion of India. The guarantee

under the Covenant was only in respect of succession to Gaddi

and not to the private properties. The right to private properties

of the Ex-Ruler depends upon the personal law of succession to

such private properties.

[83]. Article XIV of the Covenant only recognized the

succession to "Gaddi" and not to the private properties, as

approved in Article XII of the Covenant. Gaddi and private

properties are two distinct connotations and it cannot be said

that Gaddi included private properties in any manner. Clause I

of Article XIV of the Covenant prescribed that the succession,

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according to law and custom, to the Gaddi of each covenanting

State and to the personal rights, privileges, dignities and titles of

the Ruler thereof is hereby guaranteed. Article XIV does not

extend the assurance and guarantee to private properties in any

manner. The guarantee with regard to succession, according to

law and custom is given to the Gaddi of each covenanting State

and to the personal rights, privileges, dignities and title to the

Ex-Rulers thereof. There is no guarantee with regard to

succession according to law and custom qua the private

properties. The Government never guaranteed succession

according to law and custom to the private property of the Ruler

which he kept after submission of the list to the Rajpramukh.

Reference can be made to White Paper on India States

published by Government of India, Ministry of States issued on

05.07.1948. Part XI of the Indian States under the new

Constitution under the head "Guarantees Regarding Rights

and Privileges" and part VII "Settlement of Rulers Private

properties" would show that the nomenclature has been

reflected in the White Paper, wherein it has been mentioned that

prior to the Covenant, there was no distinction between private

and State property of the Ruler. In the White Paper, it has been

mentioned that upon integration of States, Ruler was required to

furnish list of immovable properties, securities and cash

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balances etc. claimed by him as private property and upon

approval of the same, the Ruler was entitled to full ownership

and enjoyment of private properties as distinct from State

properties. The personal privileges of the Ex.-Ruler and those

privileges have nothing to do with the personal property of the

Ruler. The guarantee or assurance are in respect of personal

rights, privileges and dignities of the Ruler. It does not extend to

personal property which is different from personal rights,

privileges and dignities of the Ruler. In this context reference

can be made to the ratio of Sudhansu Shekhar Singh Deo vs.

The State of Orissa and another, AIR 1961 SC 196 (Five

Judges Bench) and State of Bihar vs. Sir Kameshwar Singh,

AIR 1952 SC 252 (Five Judges Bench).

[84]. The right to private properties of the Ex-Ruler

depends upon personal law of succession. The recognition of

the Ruler is a right to succeed to the Gaddi of the Ruler alone.

This recognition of the Rulership by the President is an exercise

of political power vested in the President and the same is an

instance of pure executive jurisdiction of the President. The Act

of recognition of Rulership is not associated with any Act of

recognition of right to private properties. For privy purse of a

ruler, Article 291 of the Constitution of India was enacted.

Payment of any sum which has been guaranteed to any Ruler of

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a State as a privy purse shall be charged on and paid out of the

Consolidated Fund of India. Such privy purse is not an item of

private property to which the Ruler succeeds. Reference to para

nos.9 and 13 of Kunwar Shri Vir Rajendra Singh vs. Union of

India, 1970 AIR 1946 can be made. Personal rights

undoubtedly are personal qua the Ruler, but the rights to private

property have nothing to do with the succession to the Gaddi. Ratio(s) of Ahmadunnia Begum vs. Union of India and

Partapsinhji N. Desai vs. Commissioner of Income Tax

(supra) can be relied.

[85]. Section 4 of the Hindu Succession Act abrogated all

laws of succession and custom etc. applicable to Hindus,

whether by virtue of any text or rule of Hindu Law or any custom

or usage having the force of law. Any custom or usage like

primogeniture in force shall cease to have effect after

enforcement of The Hindu Succession Act, 1956. This Act also

supersedes any other law contained in any central or State

legislation in force immediately before this Act came into force

insofar as such legislation is inconsistent with the provisions

contained in the Act. Ratios of Pritam Singh vs. Assistant

Controller of Estate Duty and Guru Amarjit Singh vs.

Commissioner of Wealth Tax's cases (supra) can be relied in

this context.

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[86]. Sections 4(i)(a) and 5 of Hindu Succession Act of

1956 provide overriding effect of the Act. Any custom or usage

like primogeniture as part of Hindu Law in force shall cease to

have any effect after enforcement of the Act. Section 5 stands

exception to Section 4 which apply to any Estate which

descends to a single heir as indicated in the provision itself.

Section 4 of the Act would indicate that any custom or usage as

part of Hindu Law in force will cease to have effect after

enforcement of Hindu Succession Act with respect to any matter

for which provision is made in the Act itself. If Rule of lineal

primogeniture in an estate left by the deceased Ruler is a

customary one then it will certainly cease to have any effect.

[87]. Section 5 stands as an exception to Section 4 of the

Hindu Succession Act which provides that the Act will not apply

to any 'estate' which descends to a single heir by the terms of

Covenant or agreement entered into by the Ruler of any Indian

State with Government of India or by the terms of any

enactment passed before the commencement of this Act. The

discussion made by the different Courts in Maharaj Shri

Manvendrasinhji Ranjit Singh Jadeja vs. Rajamata

Vijaykunverba; Bhaiya Ramanuj Pratap Deo vs. Lalu

Maheshanuj Pratap Deo; Commissioner of Income Tax vs.

Bhawani Singhji, and Partapsinhji N. Desai vs.

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Commisioner of Income Tax's cases (supra) are the case

laws on the aforesaid subject which have decided the issue

conclusively.

[88]. The expression 'estate' appearing in Section 5(ii) of

the Hindu Succession Act, 1956 is used only with regard to

Gaddi and other titles and privileges of Ruler and not the private

properties of the Ruler. The aforesaid Section 5(ii) of the Act

provides that the Hindu Succession Act will not apply to any

estate which descends to a single heir by the terms of any

Covenant or agreement entered into by the Ruler of any Indian

State with the Government of India. In the instant case, the

Covenant in question does not contain any provision that the

private property as distinct from the State property would

descend to a single heir. Only guarantee was of succession to

the Gaddi and not the private property. Therefore, Section 5(ii)

of the Hindu Succession Act is not attracted to the present case

and is thus not applicable. The provision of the Covenant cannot

be enforced by the municipal Courts as the jurisdiction of the

Court is barred under Article 363 of the Constitution of India.

The word 'estate' in Section 5(ii) of the Act is confined to the

properties other than private properties of the Ruler. The right to

the private properties of the Ruler shall depend upon the

personal law of succession by which the family is governed,

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therefore, Section 5(ii) of the Act has no application.

[89]. The Covenant does not indicate that the estate

stands guaranteed to a single heir by the terms of Covenant or

agreement entered into between the Ruler and the Union of

India. The Covenant came to an end on coming into force the

26th Amendment of the Constitution of India. The effect of

Covenant, if any, in respect of preservation of succession on the

basis of Rule of Primogeniture came to an end. The hurdle

against applicability of the Act of 1956 by virtue of Section 5(ii)

of the Hindu Succession Act, no longer survived thereafter. The

guarantees and assurances under the Covenant were

guaranteed by Article 362 of the Constitution of India. Article

291 of the Constitution of India provided for payment of privy

purses. Vide the 26th Amendment of 1971, Articles 291 and 362

of the Constitution of India have been omitted and the concept

of rulership and privy purses were abolished. After this

amendment, the rulers became ordinary citizens of India.

Therefore, the effect of the Covenant came to an end on coming

into force of 26th Constitutional Amendment.

[90]. The Parliament also enacted the Rulers of Indian

States (Abolition of Privileges) Act 1972 for de-recognition of

Rulers of Indian States and Abolition of Privy Purses. The

privileges of all the Rulers by virtue of this Act were de-

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recognized as Rulers. In the instant case also, Raja Harinder

Singh was also de-recognized as Ruler of Faridkot State by the

letter of President of India vide letter dated 06.09.1970

(Ex.D-59). The Raja Harinder Singh has himself admitted this

fact as mentioned in earlier part of the judgment. In 26th

Amendment of the Constitution of India, Article 363-A was

inserted. By virtue of constitutional amendment, even the

guarantee regarding succession to Gaddi in terms of Article XIV

of the Covenant (Ex.D-6) came to an end and as such on

28.12.1971, the applicability of Rule of Primogeniture, if any,

also came to an end.

[91]. It is well settled that even holder of an impartible

estate can alienate the estate by a Will. The ratio(s) of Mirza

Raja Pushpavathi Vijayram vs. Pushpavathi Visweshwar

Gajapathiraj, AIR 1964 SC 118 and Bhaiya Ramanuj Pratap

Deo vs. Lalu Maheshanuj Pratap Deo, AIR 1981 SC 1937 can

be referred in the aforesaid context. The holder of an impartible

estate has power to alienate not only by transfer inter vivos, but

also by Will. Mere absence of any instance of alienation would

not be considered as an evidence of custom. In this context

reference can be made to Thakore Sri Vinayasinhji vs.

Kusum Shri Natwarsinhji, AIR 1988 SC 247 and Sri Protap

vs. Raja Jagdish Chandra, AIR 1927 PC 159.

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[92]. In view of Article 13 of the Constitution of India, all

laws which are in consistent with the provisions of Part III of the

Constitution of India and which were in force immediately before

commencement of the Constitution, shall be void. Article 14 and

15 of the Constitution of India would be attracted. Right of

inheritance and succession to the property is a statutory right

and such right cannot be taken away, except in terms of

provisions of another Act, which would have an overriding effect.

Such special statute should be a complete Code and it shall

ordinarily be later statute and must contain a non-obstante

clause. The ratio(s) of N. Padmamma vs. Ramakishna

Reddy, 2018(15) SCC 517 and Anu Garg vs. Hotel

Association, 2008(1) R.C.R. (Civil) 240 SC can be considered

in support of aforesaid legal position.

[93]. Even rights and privileges conferred upon the Ruler

under the Covenant came to an end with his death, being purely

personal in character. They are not inheritable and do not

devolve as of right on the next heir. The right to Ruler's personal

property, would be governed by the personal law of succession

applicable to him. Late Raja Harinder Singh treated the

properties i.e. land in villages Kaimbwala, Mauli Jagran and

Manimajra Fort known as Ramgarh Fort at Manimajra and Hotel

Site No.12 in Sector 17, as his individual properties. Late Raja

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Harinder Singh filed his IT Returns and Wealth Tax Returns in

respect of these properties by considering the same to be

individual personal properties. These properties cannot be

termed as ancestral in nature, rather these properties were self

acquired properties and were not part of the list given to the

Rajpramukh. Sources of acquisition of these properties have

already been detailed in earlier part of the judgment.

[94]. The controversy regarding Rule of Primogeniture is

no more res integra i.e. whether succession to the properties

declared by an erstwhile Ruler to be his private properties in the

agreement of accession with the dominion of India will be

governed by rule of succession applicable to the "Gaddi"

(Rulership) or by personal law applicable to the Ruler. This

proposition has been conclusively decided by the Hon'ble Apex

Court in the latest judgment of Talat Fatima Hasan through

her constituted Attorney Sh. Syed Mehdi Husain vs. Nawab

Syed Murtaza Ali Khan (D) by LRs and others, 2019 SCC

Online SC 947. In the aforesaid case popularly known as

'Rampur case'. Nawab Raza Ali Khan was the ruler of Rampur.

The State of Rampur merged into the Union of India. Merger

Agreement was signed by the Nawab on 15.05.1949. Nawab

Raza Ali Khan gave list of his private properties in terms of

Merger Agreement. He died intestate on 06.03.1966. The

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relevant provision of the instrument of accession executed by

late Nawab Raza Ali Khan on 15.05.1949 are Articles 2, 4 and 6

which are relevant in the present context. Bare perusal of

Articles 2, 4 and 6 of the aforesaid Covenant/Merger Agreement

dated 15.05.1949 in Rampur's case would show that these

Articles in pith and substance are the same and identical with

Articles XIII, XII and XIV of the Covenent dated 05.05.1948 in

the present in hand. It would be relevant to give a comparative

chart and the language used in Articles 2, 4 and 6 viz.-a-viz. the

Articles XIII, XII and XIV i.e. in both the Covenants.

Covenant dated 15.05.1949 in Covenant dated 05.05.1948 entered Rampur's case into between Union of India and Ruler of Faridkot Article 2 Article XIII

The Nawab shall continue to enjoy the The Ruler of each Covenanting State, same personal rights, privileges, as also the members of his family, immunities, dignities and titles which shall be entitled to all the personal he would have enjoyed had this privileges, dignities and titles enjoyed agreement not been made. by them, whether within or outside the territories of the State, immediately before the 15th day of August, 1947. Article 4 Article XII

(1) The Nawab shall be entitled to the full The Ruler of each Covenanting

ownership, use and enjoyment of all State shall be entitled to the full private properties (as distinct fromownership, use and enjoyment of all State properties) belonging to him on private properties (as distinct from the date of this agreement. State properties) belonging to him on the date of his making over the The Nawab will furnish to the administration of that State to Raj Dominion Government before the 30th Pramukh. June 1949 an inventory of all the immovable property, securities and (2) He shall furnish to the Raj cash balances held by him as such Pramukh before the 20th day of private properties. September, 1948, an inventory of all the immovable properties, securities and cash balances held by him as such private property.

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Covenant dated 15.05.1949 in Covenant dated 05.05.1948 entered Rampur's case into between Union of India and Ruler of Faridkot Article 4 Article XII

If any dispute arises as to whether any (3) If any dispute arises as to item of property is the private property whether any item of property in the of the Nawab or State property, it shall private property of the Ruler or State be referred to a judicial officer property, it shall be referred to such nominated by the Government of India person as the Government of India and the decision of that officer shall be may nominate in consultation with the final and binding on both parties. Raj Pramukh and the decision of that person shall be final and binding on all parties concerned. Provided that no such dispute shall be referable after the 30th June 1949. Article 6 Article XIV

The Dominion Government (1) The succession, according to guarantees the succession according law and custom, to the Gaddi of each to law and custom to the gaddi of the Covenanting State, and to the State and to Nawab's personal rights, personal rights, privileges, dignities privileges, immunities, dignities and and titles of the Ruler thereof, is titles. hereby guaranteed.

(2) Every question of dispute succession in regard to a Covenanting State which arises after the inauguration of the Union shall be decided by the Council of Rulers after referring it to a bench consisting of all the available Judges of the High Court of the Union and in accordance with the opinion given by such bench.

[95]. In the aforesaid cited case, the stand of the

defendants was that the property was not, strictly speaking, the

personal property of the Nawab. According to them, the property

was attached to "Gaddi" of the State of Rampur and, therefore,

it was governed by the law of succession which was applicable

to the rulership of Rampur which was the rule of male lineal

primogeniture. Apparently, the aforesaid stand of the

defendants in the aforesaid cited case is exactly the same as

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taken by the appellants in RSA No.2176 of 2018. The issue

which was debated in the aforesaid case is whether the

properties held by Nawab Raza Ali Khan would devolve upon on

his eldest son by applying the Rule of Primogeniture or would be

governed by Muslim Personal Law (Shariat) Application Act,

1937 and devolve on all his legal heirs. The Hon'ble Apex Court

relied upon Visweshwar Rao vs. The State of Madhya

Pradesh, (1952) S.C.R. 1020, wherein Justice Das in his

concurring judgment held as follows:-

"The guarantee or assurance to which due regard is to be had is limited to personal rights, privileges and dignities of the Ruler qua a Ruler. It does not extend to personal property which is different from personal rights."

[96]. The next judgment relied by the Hon'ble Apex Court

is Sudhansu Shekhar Singh Deo vs. State of Orissa, (1961)

1 SCR 779, wherein it was held

"S...The privileges guaranteed by Arts. 4 and 5 are personal privileges of the appellant as an ex-Ruler and those privileges do not extend to his personal propertyS".

The Hon'ble Apex Court further relied upon K. S. V.

R. Singh v. Union of India & Ors, (1969) 3 SCC 150 popularly

known as 'the Dholpur case'. In the said 'the Dholpur case' it

was urged that the estate left behind by the Ruler of Dholpur

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was an impartible estate and was to be governed by the rule of