Shyam Chander Paul Singh & Ors vs Nain Tara Paul Singh

Rakesh Kainthla, J

The present appeals are directed against the judgment dated 26th March 2012 passed by learned District Judge Shimla H.P. (learned Appellate Court) vide which the judgment and decree dated 1.5.2009, passed by learned Civil Judge (Senior Division) Court No.1, Shimla, HP (learned trial Court) were partly modified. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience.

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a declaration that he is the owner-in-possession of the Palace Complex situated in Khasra No. 487, Village Suni, Mauja Barabal, Tehsil Suni and for mandatory injunction directing the defendants to remove themselves, their personal effects and belongings from the aforesaid Palace Complex. A Permanent Prohibitory Injunction for restraining the defendants from interfering with the plaintiff's possession of the palace was also sought. It was pleaded that the plaintiff was the recognised Ruler of the erstwhile State of Bhajji. A certificate dated 30.3.1984 was issued by the Ministry of Home Affairs, Government of India, to this effect. Plaintiff is the born son of the late Rana Bir Pal Singh of Bhajji State. Late Rana Bir Pal Singh was deposed by the British Government in the year 1939, and the plaintiff was recognised as the Ruler of Bhajji Estate. The plaintiff became the owner-in-possession of the property owned by the Ruler of Bhajji, including the Palace Complex. Plaintiff was in Government service by virtue of his being a Member of the Indian Administrative Service from 1952 till 1982 and remained out of Suni in connection with his services. Defendant No. 1 is the plaintiff's younger brother. The plaintiff entrusted his properties to defendant No.1 as a caretaker. The plaintiff provided money for the upkeep/maintenance of his property. The plaintiff wanted to settle at Suni after his retirement, but Defendant No. 1 created obstructions. The plaintiff demanded the rendition of the accounts, but in vain. The defendant locked the old portion of the Palace Complex and denied access to the plaintiff; hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by the defendants by filing a written statement taking preliminary objections regarding the lack of maintainability, the suit having not been properly valued for Court fees and jurisdiction, the suit being barred by limitation, Order II Rule 2 and res judicata, and the plaintiff being estopped from filing the suit by his act, conduct and acquiescence. The contents of the plaint were denied on the merits. It was asserted that the plaintiff had filed the suit in the Court of learned Senior Sub Judge, Shimla, which was transferred to the Court of learned Sub Judge-III, who returned it for presentation before the proper Court. The plaintiff filed the suit after making additions and alterations that are impermissible. The plaintiff is out of possession, and he has not sought the relief of possession. The mesne profit has been sought for more than three years, which is impermissible. The plaintiff had taken a similar plea in Civil Suit No.108-1 of 1988, which was dismissed on 22.12.1989. The appeal filed by the plaintiff was dismissed by the learned Additional District Judge, Shimla, on 2.12.1994 and a Civil Revision No. 178 of 1995 was dismissed by this Court on 21.5.1996. The palace was meant for the family members of the late Rana Bir Pal Singh, which consisted of the defendant's mother, grandmother and the defendants. All those persons were residing in the Palace Complex. The plaintiff shifted to the new Palace Complex in 1947, and the old palace was given to the defendant as his absolute property in a family settlement. The plaintiff had no claim to the old complex after he had shifted to the New Palace Complex. The defendant inherited the estate of his father along with the plaintiff equally under the Hindu Law. The defendant No.1 had got his electric meter installed in the premises and invested a huge amount in the maintenance of the property. The defendant has remained in possession openly, continuously and peacefully since 1946 and has become the owner by way of adverse possession. Plaintiff is not entitled to the possession of the old Palace Complex. Therefore, it was prayed that the suit be dismissed.

A replication to the written statement denying its contents and affirming those of the plaint was filed.

The following issues were framed on 19.9.1990 and 21.7.2008: -

Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD.

Whether the plaintiff is the sole owner of the property in dispute, as alleged? OPP.

Whether late Shri Bir Pal Singh continued to be the owner in possession of the property in question despite his deposition as a ruler of Bhajji State because of his alleged insanity? OPD.

In case Issue No.3 is decided in the affirmative, whether property was inherited by his widow, the plaintiff and defendant No. 1 in equal shares? OPD.

Whether the share inherited by the widow of late Shri Bir Pal was willed away to defendant No.1 as alleged? OPD-I.

Whether the registered Will allegedly set up is legal and valid? OPD.

Whether the suit is not maintainable for want of material particulars, as alleged? OPD.

Whether the plaintiff is estopped from filing the present suit on account of his acts, deeds, conduct and acquiescence, as alleged? OPD.

Whether the defendants have become the owners of the property in question by way of adverse possession, as alleged? OPD.

Whether the plaintiff is entitled to damage at the rate of Rs. 2,000/- per month for use and occupation of the property in question or any other amount, as alleged? OPD.

10A. Whether the suit of the plaintiff is barred by the principle of res judicata, as alleged? OPD.

10B. Whether the plaintiff is entitled for decree of mandatory injunction directing the defendants to remove themselves and their personal belongings from the suit land, as alleged? OPD.

10C. Whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed for? OPP.

Whether the claim of the plaintiff for mesne profits is within time.? OPP.

Relief.

The parties were called upon to produce the evidence and the plaintiff examined Malkiyat Singh (PW1), Ratti Ram (PW2), Prem Chand (PW3), Sher Singh (PW4), Dr. D.K. Bhatnagar (PW5), Jia Lal (PW6), Pratap Singh (PW7), Kishori Lal (PW8), Brijendra Singh (PW9), Prakash Chand (PW10), Ratti Ram (PW11), Madho Ram (PW12), Chet Ram (PW13), and Ram Chander Pal (PW14). The defendants examined Chint Ram (DW1), Roop Chand (DW2), Braham Prakash (DW3), Daulat Singh (DW4), Pawma Vaid (DW5) and Shyam Chander (DW6).

The learned Trial Court held that the succession to rulership was governed by the principle of primogeniture. The evidence on record proved that the plaintiff had become the absolute owner-in-possession of the Palace Complex, vide Mutation No. 301, dated 28.2.1948. The defendant No.1 admitted that the plaintiff had given a Jagir to him. The plea taken by defendant no. 1 that he and his family members were residing in the old complex was not probable. The plaintiff had left Suni in connection with his work, and defendant No.1 looked after the property of the plaintiff. The plea of adverse possession taken by the defendants was not proved. The suit was within limitation, and it was not barred by the principle of res judicata. Hence, the learned Trial Court answered Issue No.2 in the affirmative, the rest of the issues in the negative and partly decreed the suit.

Being aggrieved by the judgment and decree passed by the learned Trial Court, the plaintiff and defendants filed separate appeals, which were decided by the learned District Judge, Shimla, H.P. (learned Appellate Court). The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the succession to the Ruler of Bhajji was covered by the principle of primogeniture. The plaintiff is the owner of the Palace Complex. He had entrusted the property to defendant No.1 after he had left Suni for his job. The defendant No.1 had acknowledged himself to be the plaintiff's agent before various Forums. The plea of adverse possession was not proved, and the learned Trial Court had rightly decreed the suit. It was further held that the learned Trial Court erred in declining the relief of mesne profit, hence the appeal filed by the plaintiff was allowed, decree of possession of the suit property and use and occupation charges at the rate of ₹ 2,000/- per month with effect from 1.11.1996 till the vacation of the suit property with interest at the rate of 9% per annum was passed.

Being aggrieved by the judgment and decree passed by the learned Appellate Court, the defendants have filed the present appeals, which were admitted on the following substantial question of law on 19.7.2012 and 13.6.2012: -

Whether, after the death of the original plaintiff and his predeceased son, the respondent can take the benefit of the judgment and decree, who is not entitled to succeed to Gaddi, i.e. (Jagir and Riyasat) of appellant No.1 family?

Whether the respondent was rightly impleaded as L.R. of late Sh. Rana Ram Chander Paul Singh by the 1st Appellate Court, despite the fact that only male lineal descendants are entitled to inherit, and the respondent has not acquired any legal status and right to succeed to the suit property?

Whether a female can claim the right of inheritance to Gaddi along with private property in exclusion of male descendants in contravention of the law by which only male heirs are entitled?

Whether the first appellate Court was not competent to take into consideration the subsequent events that happened during the pendency of the appeal?

Whether the respondent has not pleaded and proved her right to succeed to the estate of late Sh. Ram Chander Singh, without proving her relation and under what right, she can continue with the suit?

I have heard Mr Mohinder Verma, learned counsel for the appellants and Mr Neeraj Gupta, learned Senior Advocate, assisted by M/s Ajeet Pal Singh Jaswal, Pranjal Munjal, Harish Sharma and Saransh Bhardwaj, learned counsel for the respondent.

Mr. Mohinder Verma, learned counsel for the appellants, submitted that the learned Courts below erred in holding that the plaintiff is the owner of the Palace Complex and that defendant No.1 was a caretaker. The principle of primogeniture was not established in the present case. The father of the parties had died in the year 1962, after the commencement of the Hindu Succession Act, and all the legal heirs of Rana Bir Pal Singh would be entitled to succeed to the estate. The learned Appellate Court erred in substituting the respondent as the legal heir of the plaintiff. Hence, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside. He relied upon the judgment of Niyati Sarangi and others Vs. Urabi Ladies Club of Jamuhata and others 2008 0 Supreme (Ori) 894 in support of his submission.

Mr Neeraj Gupta, learned Senior Advocate for the respondent, submitted that both the learned Courts below have concurrently held that the property was inherited by the plaintiff under the rule of primogeniture. Defendant No.1 was given Jagir, and he has no right over the rest of the property. This Court should not interfere with the concurrent finding of facts recorded by the learned Courts below. Hence, he prayed that the present appeal be dismissed.

I have given a considerable thought to the rival submissions made at bar and have gone through the records carefully. Substantial Question of Law No.1:

Both the learned Courts below have concurrently held that the succession is governed by the principle of primogeniture. This fact was recognised in the settlement report of Bhajji State (Ex. PWD), composed by the Manager and Settlement Officer of the State. Page 12, Clause 37-D reads that Rana Durga Singh succeeded Rana Ran Bahadur Singh. Kanwar Parmatma Singh and Bija got Jagir. Clause 53, on Page 19, deals with Jagirs and Muafis. It reads that Jagirs are created in favour of Ranis and the family members of the Chief. The custom in the State about the grant of Jagir has been that the brother next to the Chief got a Jagir of the value of ₹700/- per year, the second one got a Jagir of ₹350/-, and the third one got a Jagir of 175/-.

Defendant No.1 admitted in his cross-examination that Jagir was allotted to him vide grant (Ex. PA), which reads that the building situated in the garden of Sunni adjoining the Palace, at present known as Rest House, Field No. 533 in Village Suni and the building known as Purana Bera, situated in Field No. 525 of Village Suni, will vest in Kanwar Shyam Chander Pal Singh and his heirs absolutely. This Jagir does not mention that any part of the Palace Complex was given to defendant No.1.

Learned Courts below had rightly held that defendant No.1 acted as the plaintiff's attorney. He had filed the return under the H.P. Ceiling on Land Holdings Act, 1972. He had instituted an appeal against the order of the Collector and the revision against the order dismissing the appeal. Therefore, the findings recorded by learned Courts below that the succession was governed by the principle of primogeniture cannot be faulted.

It was submitted that the property would vest with the eldest son as per the principle of primogeniture, and the learned Appellate Court erred in substituting Smt. Nain Tara Pal Singh as his legal heir. Reliance was placed upon the judgment of Niyati Sarangi (supra). This submission cannot be accepted. Rana Ram Chander Pal Singh died after the commencement of the Hindu Succession Act. It was laid down by Hon'ble Supreme Court in Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo, (1981) 4 SCC 613 that the role of primogeniture being a part of the customary law will not survive after the commencement of Hindu Succession Act, however an estate which descends to a single heir by the terms of a covenant or agreement entered into by the terms of any enactment passed before the commencement of the Act would be saved. It was observed: -

"14. Mr S.C. Misra, assisted by Mr U.P. Singh, raised a number of contentions. His first contention is that the Rule of lineal primogeniture survived even after the enforcement of the Hindu Succession Act. To appreciate the contention, it will be necessary to examine the relevant provisions of the Act. Section 4(1)(a) of the Act lays down:

"4. (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."

Section 6 of the Act provides:

"When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, specified in that class, who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship."

A bare perusal of Section 4 would indicate that any custom or usage as part of Hindu law in force will cease to have effect after the enforcement of the Hindu Succession Act with respect to any matter for which provision is made in the Act. If the rule of lineal primogeniture in Nagaruntari Estate is a customary one, it will certainly cease to have effect, even though it was part of Hindu law.

Faced with this situation, the learned counsel for the appellant invokes Section 5(ii) of the Hindu Succession Act. Insofar as it is material for the present discussion, it reads:

"5. This Act shall not apply to-

* * *

(ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into ... or by the terms of any enactment passed before the commencement of this Act."

This section protects an estate which descends to a single heir by the terms of any covenant or agreement entered into or by the terms of any enactment, inasmuch as the Hindu Succession Act is not applicable to such an estate. This section stands as an exception to Section 4 of the Act referred to above.

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This analysis of the Regulation leads to the further proposition that it did not, by its own force, declare that any estate would descend to a single heir. All that it did was to keep alive the custom sanctioning the Rule of primogeniture, entailing impartibility of the estate. The Rule of custom was thus recognised as such, and no estate by the terms of the Regulation itself was made to descend to a single heir. In this view of the matter, clause (ii) of Section 5 of the Hindu Succession Act does not cover such a custom."

This principle was also recognised in Revathinnal Balagopala Varma v. Padmanabha Dasa Bala Rama Varma, 1993 Supp (1) SCC 233, wherein it was observed: -

19....As pointed out by this Court in Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo [(1981) 4 SCC 613: (1982) 1 SCR 417], the effect of the provision is that succession to impartible estates other than those mentioned in clauses (ii) and (iii) of the section is governed by the Act and in those cases the rule of primogeniture stands abrogated. So also, it is said, if the suit properties are treated as tarwad properties, the custom of devolution to the next karnavan of the family would be inconsistent with the provisions of Section 7(1) of the Act. Or, again, if the properties are treated as those of a sthanamdar, the custom of succession to the next sthanee would be inconsistent with the provisions of Section 7(3) of the Act. The question, however, is: assuming that the analogies are accepted as valid, when does the custom cease to operate? Can it be said, as contended for by Sri Nambiar, that the properties became partible on June 17, 1956, when the Hindu Succession Act came into force or only on July 20, 1991 when respondent

1 passed away and the succession to his properties opened. In support of his contention Shri Nambiar refers to Sundari v. Laxmi [(1980) 1 SCC 19 : (1980) 1 SCR 404] as interpreted by the Gujarat High Court in Pratapsinhji N. Desai v. CIT [(1983) 139 ITR 77: 1982 Tax LR 1935 (Guj)] and the Patna High Court in CIT v. Maharaja Chintamani Saran Nath Sah Deo [(1986) 157 ITR 358: 1985 Tax LR 257 (Pat)] [overruling CIT v. Maharaja Chintamani Saran Nath Sah Deo [(1982) 133 ITR 658 : (1980) 15 CTR (Pat) 300] and differing from CIT v. U.C. Mahatab, Maharaja of Burdwan [(1981) 130 ITR 223 : (1981) 85 CWN 203] ]. We have examined these decisions. Sundari v. Laxmi [(1983) 139 ITR 77: 1982 Tax LR 1935 (Guj)] dealt with the question of a succession that opened out after June 17, 1956, and there is nothing in this decision which would support the conclusion that the customary rule of primogeniture or survivorship would automatically cease on June 17, 1956. Section 4 the Act, in the words of Sundari v. Laxmi [(1980) 1 SCC 19 : (1980) 1 SCR 404] (SCC p. 24, para 9), "gives overriding application to the provisions of the Act and lays down that in respect of any of the matters dealt with in the Act all existing laws whether in the shape of enactment or otherwise which are inconsistent with the Act are repealed. Any other law in force immediately before the commencement of this Act ceases to apply to Hindus insofar as it is inconsistent with the provisions contained in the Act." In other words, while the Act may have an immediate impact on some matters, such as, for e.g., those covered by Section 14 of the Act, its impact in matters of succession is different. There the Act only provides that, in the case of any person dying after the commencement of the Act, succession to him will be governed not by customary law but only by the provisions of the Act...."

In Niyati Sarangi (supra), the Orissa High Court held that a custom of lineal primogeniture would be protected by Section 5 of the Hindu Succession Act. With due respect, the Orissa High Court failed to notice that only the covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by terms of any enactment passed before the commencement of the Act were saved and not the custom. Gujarat High Court held in Pratapsinhji N. Desai vs. Commissioner of Income Tax, Gujarat-III (28.01.1981 - GUJHC): MANU/GJ/0054/1981 that where the covenant does not provide for the rule of primogeniture, or no covenant exists, the matter is covered by the Hindu Succession Act. It was observed: -

"22....The clear effect of s. 4 is that if there is any provision made in the Act in respect of any matter governed by the custom or usage of Hindu law previously, then the said provision would prevail and the previous Hindu law to the extent it related to those matters would stand nullified. The question, in the present reference, is whether any provision has been made in the Act with reference to the rule of inheritance by a single heir. If any provision is made contrary to classical Hindu law in that behalf in any of the sections of the Hindu Succession Act, that provision would prevail against the earlier law as ordained by custom, usage or interpretation of Hindu law as in force immediately before the commencement of the Act. The effect of s. 5(ii), read with s. 4, is that any custom or usage which enjoined the devolution of an estate on a single heir unless it is by the terms of a covenant or agreement entered into by a Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of the Hindu Succession Act, would stand repealed. Section 5(ii) saves and excepts only that estate which descends to a single heir by the terms of any covenant or agreement entered into by the ruler of an Indian State with the Govt. of India, or by the terms of any enactment passed before the commencement of the Hindu Succession Act. In other words, the conjoint reading of ss. 4 and 5 drives us to the conclusion that any custom or usage, which enjoins the devolution of an estate on a single heir is no more effective, except in those cases where in respect of an estate such a descent is to a single heir by the terms of any covenant or agreement entered into by the ruler of any Indian State with the Govt. of India or by and terms of an enactment passed before the commencement of the Hindu Succession Act.

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Rule of primogeniture may be again general or lineal, but ordinarily an impartible estate is governed by lineal primogeniture, rather than general (vide Sahebgouda v. Basangouda MANU/MH/0215/1930: (1931)33BOMLR580 and Baijnath Singh v. Tej Bali Singh [1921] LR 48 IA 195. Unless, therefore, a particular estate the devolution of which is to a single heir is saved and excepted under s. 5(ii) of the Hindu Succession Act, it cannot be claimed successfully that the estate continues to be impartible. In other words, if a covenant or an agreement entered into by the ruler of any Indian State with the Govt. of India or by any enactment passed before the commencement of the Hindu Succession Act recognises the devolution of an estate to a single heir, then only that estate would be outside the purview of the Hindu Succession Act. If it is within the purview of the Hindu Succession Act, as not being excepted under s. 5(ii) of the said Act, the custom or usage about the impartibility of the estate would not continue to grant protection to that estate after the Hindu Succession Act was put on the statute book. The Tribunal, in our opinion, was, therefore, clearly in error in not appreciating, in the first instance, this aspect of the question.

In Hindu Law of Succession by S. V. Gupte, 2nd Edn., in the commentary on clause (ii) of s. 5 of the Hindu Succession Act, the learned author has observed as under at p. 464 :

"77. Certain specified impartible property excluded.

- The second category of property excluded from the operation of this Act is 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 object is to exclude from the operation of the Act succession to the estate which goes by the rule of primogeniture but not in all cases; it is only where the estate descends to a single heir by reason only of the terms of the 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. Under the old law of succession, an estate could descend to a single heir by the rule of primogeniture by reason of the terms of a grant, custom or usage. This was one of the features of impartible estates. In view of the restricted exclusion under this clause, the rule of primogeniture now stands abolished even where primogeniture was recognised by the terms of a grant, custom or usage. Section 5(ii) only excludes from the operation of the Act estates which descend by the rule of primogeniture in a limited class of cases."

In para 81 of the same book at p. 466, the learned author has observed as under:

"81. Impartible estates abolished. - Thus, barring the impartible and other estates mentioned in clauses (ii) and (iii) of s. 5, Succession to all other impartible estates would be governed by this Act; the old rule of succession by single heir stands thus abrogated."

It is pertinent to note here that at footnote (r) at p. 464 of Gupte's Hindu Law of Succession. The following remark is found:

"(r) Under the original Bill, every estate which descended to a single heir by a customary rule of succession or by the terms of any grant or enactment, that is to say, all the impartible estates were sought to be excluded from the Act. Under the Act, however, only a specific class of impartible property is now excluded. All other impartible property would be governed by this Act."

To the same effect is the observation to be found in Mulla's Hindu Law, at p. 621, which is as under:

"The Hindu Succession Act. 1956 has brought about radical changes in the rules of Hindu law relating to impartible property. The effect of that enactment is to abolish impartible estates save those which are expressly saved by section 5(ii) of the same. "

This position was reiterated in Maharaja Manvendrasinhji R. Jadeja Vs. Rajmata Vijaykunverba 1999 1 GLR 261, wherein it was held:-

"22. A bare perusal of Sec 4 would indicate that any custom or usage as part of Hindu Law in force will cease to have effect after the enforcement of the Hindu Succession Act with respect to any matter for which provision is made in the Act. If the rule of lineal primogeniture in the estate left by deceased Mahendrasinhji is a customary one, it will certainly cease to have effect. We are fortified in our view by the decision of the Supreme Court rendered in the case of Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo & Ors., AIR 1981 SC 1937. Section 5 of the said Act stands as an exception to Sec. 4 of the Act referred to above and 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 the Government of India or by the terms of any enactment passed before the commencement of this Act...."

Therefore, the principle of primogeniture would stand abrogated after the commencement of the Hindu Succession Act.

It was laid down by this Court in Kr. Alark Singh Vs. Durga Devi and others, 1994 (1) Shim. LC 253 that the property in the hands of the Ruler is not ancestral but his personal property. It was observed: -

"23. It is the plaintiff's case that Maharaja Amar Parkash was a sovereign and properties were held by him as a sovereign ruler of Sirmur, and upon his death by the rule of primogeniture, the same were inherited by Maharaja Rajinder Parkash as a Sovereign Ruler of Sirmur. This being the case of the plaintiff, there is no manner of doubt that till the sovereignty of Maharaja Amar Parkash or after his death of Maharaja Rajinder Parkash ceased, they were entitled to treat and use the properties under their sovereignty, in any manner they liked, and their Will in this regard was supreme. It is 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. In Revathinnal Balagopala Varma's case (supra), it has also been held that one incidence of the property held by a sovereign was that there was really no distinction between the public or State properties on the one hand and the private properties of the sovereign on the other. The other incident was that no one could be a co-owner with the sovereign in the properties held by him.

The judgment in His Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojini Devi and others, Civil Appeal No. 5857 of 1983, decided on 17th August, 1993 by the Supreme Court of India, is later in point, in which reliance was placed upon the judgment in Revathinnal Balagopala Varma's case (supra), and again the above quoted observations of Gujarat High Court in D S Meramwala Bhayala's case (supra) were re-asserted and approved. In both the decisions terms of the merger agreement were also considered, under which some of the properties held by last ruler were declared by the Union of India to be the private properties of the last ruler. It was held that, being the absolute Monarch or Sovereign, so long as rulership remained, the ruler was the owner of all the properties in the State, and there was no rulership after India became a Republic on 26th January, 1950. The estate, which was impartible in its nature, would continue to be governed by the ruler of primogeniture, which continued even after 1947-48, since under Article 372 of the Constitution of India, the law of succession relating to primogeniture continued until it was repealed. This was repealed on the coming into force of the Hindu Succession Act, 1956. On declaration of the properties by the Union of India to be personal property of the last ruler, ordinarily, the incidents of succession would apply, and there is no question of property being treated as ancestral in the hands of the person who was declared to be the owner of the properties by the Union of India.

In Revathinnal Balagopala Varma's case (supra), it has been held that 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 that the said property was held by the sovereign not as sovereign but in some other capacity. In the instant case, the position is not so since plaintiff's case, as made out in the plaint, is that the property was firstly held by Maharaja Amar Parkash as a sovereign, and when Maharaja Rajinder Prakash became the Ruler, he also held the same as a sovereign.

Thus, the plaintiff's suit based upon the premise that the properties, on being declared as personal properties of Maharaja Rajinder Parkash, were held by him as a member of joint Hindu family or that it was a coparcenary property, has to be held as not maintainable, in view of the law declared by the Supreme Court, which by virtue of Article 141 of the Constitution is the law and binding on this Court. On that basis, the pleas which are contrary to the law declared by the apex Court in the two decisions, can neither be made subject matter of issues, nor taken to trial. The effect of the two decisions would be that the properties were held by Maharaja Rajinder Parkash as a sovereign till the merger of Sirmur State with the dominion of India, and were not the joint family properties. After the merger, the same were accepted as the personal properties of Maharaja Rajinder Parkash. On the death of Maharaja Rajinder Parkash, which took place in 1.964, only his two widows, Smt. Durga Devi and Smt. Indira Devi (latter of whom is already dead), his widowed mother Rajmata Madalsa Devi and two daughters Smt. Nalini Devi and Padmini Devi inherited the properties. This being the basic and primary claim made by the plaintiff, in view of the two decisions of the Supreme Court, cannot now be taken to trial, since the plaintiff cannot lay any claim to the estate of Maharaja Rajinder Parkash. Its effect now will have to be examined.

Learned Appellate Court held that Smt. Nain Tara Paul Singh is the widow of the predeceased son and was a legal heir. Therefore, the application was allowed. There is no infirmity in the reasoning of the learned Appellate Court because the widow of a pre-deceased son falls in the category of Class-I heir, and she was entitled to be brought on record as the legal representative.

Therefore, the learned Appellate Court had rightly substituted the respondent as the legal representative of the plaintiff, and this substantial question of law is answered accordingly.

Substantial Question of Law No.2:

The principle of primogeniture stood abrogated after the commencement of the Hindu Succession Act, and it was not correct to say that only the male lineal descendants were entitled to inherit the estate. Hence, this substantial question of law is answered accordingly.

Substantial Question of Law No.3:

The succession to a male Hindu is governed by the Hindu Succession Act, which includes a female as the legal representative. Therefore, a female could claim the right of inheritance, and this substantial question of law is answered accordingly.

Substantial Question of Law No.4:

The plaintiff died during the pendency of the appeal, and the matter was governed by Order 22 Rule 3 of the CPC. Learned Appellate Court was bound to substitute the legal heirs after the plaintiff's death. Thus, there is no infirmity in the procedure adopted by the learned Appellate Court, and this substantial question of law is answered accordingly.

Substantial Question of Law No.7:

Respondent No.1 had specifically stated in her application under Order 22 Rule 3 CPC that she is widow of the predeceased son of the plaintiff. This was found to be correct by the learned Appellate Court. Therefore, it cannot be said that the respondent has not pleaded and proved her right to succeed to the plaintiff's estate. Hence, this substantial question of law is answered accordingly.

Final Order:

In view of the above, the present appeals fail, and the same are dismissed.

Pending application(s), if any, also stand(s) disposed of.

Records of the learned Courts below be sent down forthwith.