# DRAUPADI DEVI AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [2004] Supp. 4 S.C.R. 223
- **Court:** Supreme Court of India
- **Decided:** 2004-09-09
- **Bench:** K.G. Balakrishnan, B.N. Srjkrjshna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/draupadi-devi-and-ors-v-union-of-india-and-ors-20180
- **Pages:** 35

## Headnote

B
Constitution of India, 1950:
Article 363-Act of State-Dispute related to character of suit property
flowing from pre-constitution covenant-Bar to interference by Courts in
disputes arising out of certain treaties, agreements, etc.-Held, dispute C
beyond jurisdiction of Court.
Article 372-Commands of 1940and1948 allegedly issued by Maharaja
of Kapurthala-Even if assumed to be proved-Not saved as pre-constitution
laws.
I
Article 77-Authentication of instruments made and executed in the
name of President-Not applicable to pre-constitution instruments.
D
Covenant Dated 05.05.1948-Executed by Rulers by which erstwhile
States merged into Union of States-Articles VJ and XJI.:_Provisions ofE
Discussed
Property:
Instrument of Accession, White Paper on Indian States, aide memoire
Dated 01.03.1937 prepared by Lt. Col. Fisher-Title to property-Suit F
property whether private property or State property-Effect of historical
developments-Test of user of property-Non-recognition by Government of
India of suit property as private property-No documentary evidence to
prove title-Held, suit property is State property.
Limitation Act, 1908-Section 3-Schedule-Artic/e 120-Absence of G
pleading as to when cause of action arose-Ascertainment of time of cause
of action on appreciation of evidence-·Time limit for filing sJtit-Six yearsSuit filed after nine years-Held, Court was mandated to dismiss suit.
Code of Civil Procedure, 1908-0rder VII, Rule 1 (e)-Requirement of H
223
224
SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.
A plaiilt-fact constituting the cause of action and when it arose.
B
The issue that arose for consideration in these appeals was whether
the suit property was the private property of the Ruler of Kapurthala
State recognised as such by the Government of India or whether it was
the State property of Kapurthala State.
·
Dismissing the appeals, the Court
HELD : t.i. The correspondence by Maharaja of Kapurthala with
the Government of India does not indicate that he was raising a dispute
C with regard to the immovable properties outside Kapurthala State. On
the contrary, it suggests that the Maharaja having agreed to the decision
taken in the meeting with Government of India's representatives, was
attempting to prevail upon Government of India to declare some of the
properties as his personal properties. By signing aide memoire as early
as 01.03.1937, the Maharaja of Kapurthala accepted that suit property
D was State property. (234-E, F; 237-H; 238-A)
1.2. The Maharaja never made an assertion of rightful title to suit
property, his efforts being directed towards wresting greater concession.
The Division Bench rightly analysed the evidence on record and came
E to the finding that till 1934, ~he incomes from Oudh estates and
Kapurthala State were treated as one consolidated account. It was on
the advice of Lt. Col. Fisher that the accounts were separately maintained
after 1936. The High Court was justified in its finding that the Maharaja
of Kapurthala had clearly admitted that the income from Oudh estate
formed an integral part of State of Kapurthala and all along maintained
F in his correspondence with the Government of India that the nature of
the suit property could not be decided merely from the source of income
aspect. (238-D, E; 239-C)
2.1. To merge or not to merge with Dominion oflndia was a political
decision taken by the sovereign Ruler and the instrument of accession
G dated 16.08.1947 and covenant dated 05.05.1948 were, without doubt,
acts of State. Article XII ensured certain rights to the Ruler with regard
to full ownership, use and enjoyment of all private properties (as distinct
from State properties) belonging to him on the date of his making.over
the administration of the State to the Raj Pr~mukh. Clause (3) of Article
H XII provides that a dispute arising as to whether any item was the
'
DRAUPADI DEVI v. U.0.1.
225
private property of the Ruler or State property was referable to a A
nominee of Government of India and such

## Text

_Characters 0–39,789 of 79,897. This is a partial read: ask again with offset=39789 for what follows._

DRAUPADI DEVI AND ORS.
A
v.
UNION OF INDIA AND ORS.
SEPTEMBER 9, 2004
[K.G. BALAKRISHNAN AND B.N. SRJKRJSHNA, JJ.]
B
Constitution of India, 1950:
Article 363-Act of State-Dispute related to character of suit property
flowing from pre-constitution covenant-Bar to interference by Courts in
disputes arising out of certain treaties, agreements, etc.-Held, dispute C
beyond jurisdiction of Court.
Article 372-Commands of 1940and1948 allegedly issued by Maharaja
of Kapurthala-Even if assumed to be proved-Not saved as pre-constitution
laws.
I
Article 77-Authentication of instruments made and executed in the
name of President-Not applicable to pre-constitution instruments.
D
Covenant Dated 05.05.1948-Executed by Rulers by which erstwhile
States merged into Union of States-Articles VJ and XJI.:_Provisions ofE
Discussed
Property:
Instrument of Accession, White Paper on Indian States, aide memoire
Dated 01.03.1937 prepared by Lt. Col. Fisher-Title to property-Suit F
property whether private property or State property-Effect of historical
developments-Test of user of property-Non-recognition by Government of
India of suit property as private property-No documentary evidence to
prove title-Held, suit property is State property.
Limitation Act, 1908-Section 3-Schedule-Artic/e 120-Absence of G
pleading as to when cause of action arose-Ascertainment of time of cause
of action on appreciation of evidence-·Time limit for filing sJtit-Six yearsSuit filed after nine years-Held, Court was mandated to dismiss suit.
Code of Civil Procedure, 1908-0rder VII, Rule 1 (e)-Requirement of H
223
224
SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.
A plaiilt-fact constituting the cause of action and when it arose.
B
The issue that arose for consideration in these appeals was whether
the suit property was the private property of the Ruler of Kapurthala
State recognised as such by the Government of India or whether it was
the State property of Kapurthala State.
·
Dismissing the appeals, the Court
HELD : t.i. The correspondence by Maharaja of Kapurthala with
the Government of India does not indicate that he was raising a dispute
C with regard to the immovable properties outside Kapurthala State. On
the contrary, it suggests that the Maharaja having agreed to the decision
taken in the meeting with Government of India's representatives, was
attempting to prevail upon Government of India to declare some of the
properties as his personal properties. By signing aide memoire as early
as 01.03.1937, the Maharaja of Kapurthala accepted that suit property
D was State property. (234-E, F; 237-H; 238-A)
1.2. The Maharaja never made an assertion of rightful title to suit
property, his efforts being directed towards wresting greater concession.
The Division Bench rightly analysed the evidence on record and came
E to the finding that till 1934, ~he incomes from Oudh estates and
Kapurthala State were treated as one consolidated account. It was on
the advice of Lt. Col. Fisher that the accounts were separately maintained
after 1936. The High Court was justified in its finding that the Maharaja
of Kapurthala had clearly admitted that the income from Oudh estate
formed an integral part of State of Kapurthala and all along maintained
F in his correspondence with the Government of India that the nature of
the suit property could not be decided merely from the source of income
aspect. (238-D, E; 239-C)
2.1. To merge or not to merge with Dominion oflndia was a political
decision taken by the sovereign Ruler and the instrument of accession
G dated 16.08.1947 and covenant dated 05.05.1948 were, without doubt,
acts of State. Article XII ensured certain rights to the Ruler with regard
to full ownership, use and enjoyment of all private properties (as distinct
from State properties) belonging to him on the date of his making.over
the administration of the State to the Raj Pr~mukh. Clause (3) of Article
H XII provides that a dispute arising as to whether any item was the
'
DRAUPADI DEVI v. U.0.1.
225
private property of the Ruler or State property was referable to a A
nominee of Government of India and such nominee's decision would be
final and binding on all the parties concerned, provided that such dispute
was to be referred by the deadline of 31.12.1948. If the Ruler of the
covenanting State claimed property to be his private property, and the
Government of India did not agree, it was open to the Ruler to have this B
issue decided in the manner contemplated by Clause (3). Government
was not obliged to refer the dispute upon its failure to recognise it as
private property. The dispute as to whether a particular property was
or was not recognised as private property of the Ruler was itself a
dispute arising out of the terms of the covenant and, therefore, not
adjudicable by municipal Courts as being beyond the jurisdiction of the C
Municipal Courts by reason of Article 363 of the Constitution of India.
The issue as to whether the Government of India was obliged to recognise
the private property of the Ruler of Kapurthala, and whether, under
the terms of the covenant (Article XII of the covenant), the Ruler was
entitled to have it thus recognised, are disputes which are clearly barred D
by Article 363 and the Court had no jurisdiction to decide the said
issues. [243-G; 244-A, B, C, F, G; 245-D)
Virendra Singh & Ors. v. The State of Uttar Pradesh, [1955) 1 SCR
415, disapproved.
State of Gujarat v. Vora Fiddali Badruddin Mithibarwala, [1964) 6
SCR 461, relied on.
Vaje Singhji Jorwar Singh v. Secretary of State for India, (1924) LR
E
51 I.A. 357; Jagannath Agarwala v. State of Orissa, [1961J l SCR 1957; F
Mis Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income Tax, (1959]
SCR 729; Pramod Chandra Deb & Others v. State of Orissa, (1962) Suppl
1 SCR 405; State of Saurashtra v. Jamadar Mohamad..Abdulla & Others,
(1962) 3 SCR 970; Johnstone v. Pedlar, (1921] All ER 176; State of
Saurashtra v. Memom Haji Ismail Haji, [1960) 1 SCR 537 and H.H.
Maharajadhiraja Madhav Rao Scindia Etc. v. Union of India and Another, G
(1971] 1 sec 85, referred to.
3. Rights available to erstwhile Ruler and his subjects are of no
avail till there is recognition of such rights. The argument of lex situs
could have perhaps prevailed, if the Government of India at any point H
226
SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.
A of time had recognised the suit property as the private property of
Maharaja of Kapurthala, and, after the coming into force of the
Constitution, attempted to take it away otherwise than by a
constitutionally valid legislative enactment. In fact, no such recognition
was granted. Merely because the decision not to recognise was conveyed
B to the plaintiff in the year 1951, the act of Union of India did not cease
to be an .act of State, nor does it fall outside the protective umbrella of ·
Article 363 of the Constitution of India. [249-E, F)
4. Even assuming that the appellants are right in the contention
that the decision not to recognise the suit property as private property
C of the Maharaja of Kapurthala, was required to be and not taken in the
manner contemplated by Article 77, it would only mean that there was
no decision. The plaintiff cannot succeed by merely showing that the
Government of India had failed to arrive at a decision on the issue. He
must further show that Government of India had recognised the suit
.
'
4
D property· as private property of the Ruler of Kapurthala as that could
be the only foundation for his title. Further, if the act of recognition or
non-recognition of the suit property as private property is relatable to
instrument of accession made in 1947 and the covenant executed in
1948, the decision would also relate back to the date of the covenant,
and on that date Article 77 of the Constitution was not in existence. It
E
would be incorrect to judge the validity of that decision relatable to the
covenant executed in 1948 by the Constitution of India, which came into
existence much later. [250-H; 251-A, B, CJ
F
G
State of Gujarat v. Vora Fiddali Badruddin Mithibarwala, [1964) 6
SCR 461, relied on.
State of Rajasthan and Anr. v. Sripal Jain, AIR (1963) SC 1323; l.G.
Chaudhari v. The Secretary, L.S.G. Dept., Govt. of Bihar and Ors., AIR
(1980) SC 383 and Vishnu Pratap Singh v. State of Madhya Pradesh and
Ors., [1990) 1 SCR 43, referred to.
State of Punjab & Ors. v. Brigadier Sukhjit Singh, [1993) 3 SCC 459,
dissented from.
5. The decision of the Government of India not to recognise the suit
property as private property of Maharaja was taken some time in the
H year 1951, whether in March or May. Dewan Jarmanidass, the plaintiff
DRAUPADI DEVI v. U.0.1. [SRIKRISHNA, J.]
227
and the Maharaja were very much aware of this decision. Yet the suit was A
filed only on 11.05.1960. Under Article 120 of Limitation Act, 1908 the
period of limitation for a suit for which no specific period is provided in
the Schedule was six years from the date when right to sue accrues. The
suit was clearly barred by limitation and by virtue of Section 3 of Limitation
Act, 1908, the Court was mandated to dismiss it. [252-G; 253-A, B]
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3861 of200 l.
From the Judgment and Order dated 8.12.2000 of the Delhi High Court
in C.W. No. 1612 of 1987.
WITH
C.A. No. 3862 OF 2001.
c
Joseph Vellapally, Anil Shanna, Rajiv Endlaw, Vijay Gupta and Navin D
Prakash for the Appellants.
Kapil Sibal, Sr. Adv. with Mrs. Avinash Ahlawat, Mrs. Rani Chhabra,
Brajesh Kumar, Mrs. Sudha Pal, Mohit Madan, Mrs. Rashmi Chopra, Ms.
Seema Nair, Shreekant N.Terdal, Hemant Sharma, D.S. Mahra, Ajay Sharma,
Mrs. Sushma Suri, Anil Mittal, S.D. Jain and Dr. Kailash Chand for the
Respondents.
The Judgment of the Court was delivered by
SRIKRISHNA, J. :
Civil Appeal No. 3862 of 2001 :
This appeal by special leave impugns the judgment dated 8.12.2000
rendered by the Division Bench of the Delhi High Court in an appeal
RF A
(OS) No. 19of1989. The Division Bench overturned the decree granted by
the learned Single Judge and dismissed the suit of the original plaintiff. Legal
representatives of the original plaintiff are appellants before us while the three
defendants in the suit (Union of India, State of Punjab and Sukhjit Singh)
are respectively the respondents before us. For the sake of convenience, we
shall refer to the parties as arrayed in the suit.
E
F
H
228
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A Facts:
The plaintiff instituted a suit in 1960 before the Civil Court at Delhi
which ultimately came to be transferred to the Original Side of the Delhi High
Court and was disposed' of by a learned Single Judge. The suit was for
B declaration of title to the property being land and building situated at 3,
Mansingh Road, New Delhi.
By an indenture oflease dated 13.7.1921, Khan Bahadur Abdul Hamid,
the then Chief Minister of Kapurthala State, had been granted a perpetual
lease of the plot of land situate at 3, Mansingh Road, New Delhi. He raised
C a construction thereupon called 'Kapurthala House'. It is this land together
with the structures thereupon which is the subject matter of the suit and shall
henceforth be referred to as 'the suit property'.
Khan Bahadur Abdul Hamid sold the house to Jagatjit Singh, the then
Maharaja of Kapurthala, by a registered sale deed dated 19.1.1935. The
D records of the· Land and Development Offic1: were mutated and Maharaja
Jagatjit Singh was recorded as the owner of the suit property.
The title to the suit property was claimed by the plaintiff on the ground
that the plaintiff had purchased the suit property by a registered sale deed
E
dated 10.1.1950 for a consideration of Rs. 1.50 lacs from Maharaja Paramjit
Singh, son of late Maharaja Jagatjit Singh, erstwhile Ruler of Kapurthala
State, who was the rightful owner thereof and in whose name the property
stood mutated in the official records of the Government at the material time.
F
Kapurthala was a Sovereign State (192.8-1948) till its merger in 'Patiala
and East Punjab States Union' (hereinafter referred to as 'PEPSU') and
subsequent merger of PEPSU into the Dominion of India.
It is the case of the plaintiff that Maharaja ofKapurthala, Jagatjit Singh,
owned properties extensively, some of which were owned by Kapurthala
G State, (also referred to as 'Kapurthala Darbar') while some others were
owned by him in his personal capacity purchased out of the personal funds
of the Maharaja.
The plaintiff claimed that the suit property was one such property which
had been bought by Maharaja Jagatjit Singh out of his personal funds and,
H hence, it was the personal property of the said Maharaja.
'
...
>
DRAUPADI DEVI v. U.O.I. [SRIKRISHNA, J.]
229
The plaintiff pleaded that on 1.3.1937 Lt. Col. C.P. Fisher, the then A
Prime Minister of Kapurthala State, had prepared an aide memoire in respect
of the financial arrangements pertaining to bifurcation ofOudh estate income
and rest of the Kapurthala State income and other matters. There is no dispute
that in this aide memoire Lt. Col. Fisher had listed out the properties~held
by the Kapurthala State and the private properties of the Maharaja separately.· ·B
It is also common ground that 'the suit property was described as State
property in this aide memoire prep<lred by Lt. Col. Fisher.
The plaintiff alleged that on 1.1. 1940 the then Maharaja of Kapurthala
State in his capacity as a Sovereign Ruler of the State had issued a 'command'
under the signature of Tika Raja, (heir apparent), President State Council, C
commanding that in future all the houses in Mussoorie and Kapurthala Hoμse
in New Delhi would be considered as his personal and private property and
that the aide memoire dated .1.3.193 7 shall be inoperative and ineffectual so
far as the said properties were concerned.
Maharaja Jagatjit Singh died sometime in 1940 and all his properties
including the suit property passed on to his eldest son Paramjit Singh, who
became the Maharaja of Kapurthala and was recognised as such by the
Government of India. The plaintiff claimed that by a duly registered deed
D
of conveyance dated 10.1.1950 Maharaja Paramjit Singh had sold and
conveyed the suit property jointly to the plaintiff and one Dewan Jarmani E
Dass for a consideration of Rs. 1.50 lacs. It is also the plaintiffs case that,
subsequently, Dewan Jarmani Dass, who had been shown as venG.ee only
for the purpose of 'convenience', conveyed all his right, title and interest in
the suit property to the plaintiff by a duly registered indenture of transfer
dated 21.2.1951. Thus, the plaintiff claimed that he had full title to the suit F
property and sought the declaration and reliefs as indicated.
If history had not overtaken him, the plaintiff perhaps would have had
no problem for successful culmination of his suit. Historical developments
left their impact on the aforesaid transaction the plaintiff had with the
Maharaja of Kapurthala and for that reason they need careful notice.
G
The Independence Act was enacted in 194 7 and all the independent
Sovereign Rulers of the States in India were successfully persuaded to sign
instruments of accession. As recorded in the 'White Paper on Indian States'
published by the Government of India in 1948 (of which judicial notice has H
230
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A
been taken by this Court in several cases), the strategy adopted by the
Government of India immediately before independence was to persuade
individual States to sign instruments of accession for accessfon pf the States
to the Dominion of India on three subjects, namely, defence; external affairs
and communication.
B
c
D
E
. The accession of the Indian.States to the Dominion of India was the
first phase of the process of fitting them into the constitutional structure of
India. ·The second phase which rapidly followed, involved a process of twofold integration, the consolidation of States into ~izeable administrative units,
and their democratisation1•
Where there were small States, they were persuaded to form Unions of
States on the basis of full transfer of power from the Ruler~ to the people.
These Unions were to be headed by a Rajpramukh as the constitutional head
of the State who was to be elected by the . Council of Rulers2•
Pursuant to this strategy, the Rulers of all individual States were
persuaded to enter into an iQ~trument of accession dated··l6.8.1947 with the
Government of India. This was then followed by covenants between different
Rulers by which the Unions of States was brought into existence, which were
to be finally merged into the pominion of India.
As far as the present appeal is concerned, it is significant that the States
of Kapurthala, Jind, Nabha, Faridkot, Malerkotla and the States ofNalagarh
and Kalsia came together and entered into a covenant on 5.5.1948. The
. Division Bench has reproduced the full text of the covenant executed on
5 .. 5 .1948 b)'. the Seven Rulers including the Maharaj a of Kapurthala by whkh
F the erstwhile seven States merged into a Union of States. The geQeral effect
ofthesaid covenant was 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 'Patiala and East Punjab States Union' (PEPSU)
which was referred to in the covenant as 'the Union'. Articles VI and XII
G of the said covenant provided as under:
"ARTICLE VI
(I) The Ruler of each covenanting State shall, as soon as may be ·
I. Para 86; Part V, p. 38 of the White Paper on Indian States.
H
2. Para 125 ibid.
. '
DRAUPADI DEVI v. U.0.1. [SRIKRISHNA, J.]
231
practicable, and in any event not later than the 20th of August, 1948, A
make over the administration of his State to the Raj Pramukh and
thereupon -
(a) all rights, authority and jurisdiction belonging to the
Ruler which appertain, or are incidental to the Government
of the Covenanting States shall vest in the Union and B
shall hereafter be exercisable only as provided by this
covenant or by the Constitution to be framed thereunder;
(b)
all duties and obligations of the Ruler pertaining or
incidental to the Government of the Covenanting State C
shall devolve on the Union and shall be discharged by it;
(c) all the assets and liabilities of the Covenanting State shall
be the assets and liabilities of the Union, and
( d) the military forces, if any, of the Covenanting State shall D
become the military forces of the Union.
ARTICLE XII :
( 1) The Ruler of each Covenanting State shall be entitled to the
full ownership, use and enjoyment of all private properties (as E
distinct from State properties) belonging to him on the date of his
making over the administration of that State to the Raj Pramukh.
(2)
He shall furnish to the Raj Pramukh before the 20th day of
September, 1948, an inventory of all the immovable properties,
securities and cash balances held by him as such private F
property.
(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 may G
nominate in consultation with the Raj Pramukh and the
decision of that person shall be final and binding on all parties
concerned.
Provided that no such dispute shall be so referable after
the 31st of December, 1948."
H
A
B
c
232
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
The organisation of the different organs constituting the administration
of the PEPSU was indi-cated in the covenant. There were also an elected Raj
Pramukh and an Up-Raj Pramukh who were to be appointed in the manner
indicated in the covenant for carrying out the administration of the PEPSU.
There were several other details with regard to the Union of PEPSU and for
privy purses to be paid to each of the erstwhile Rulers. To this covenant, the
Government of India in the Ministry of States was a party and the
Government of India declared: "The Government of India hereby concur in
the above Covenant and guarantee all its provisions." The said covenant was
signed on behalf of the Government of India by V.P. Menon, then Secretary
to the Government of India in the Ministry of States.
The White Paper on Indian States further records that on 15. 7 .1948 the
Patiala and East Punjab States Union was inaugurated. Soon thereafter, the
second step of integration took place.
D
Then followed correspondence between the Maharaja ofKapurthala and
E
the Government of India on the issue of fixing his privy purse as well as
bifurcation and recognition of the properties owned by him into State and
private properties.
The Maharaja of Kapurthala kept pleading with the Government of
India that he had ruled the State of Kapurthala as a model Ruler; that in
recognition of his signal services to the British Government he had been
granted the estates in Oudh income from which he was gracious enough to
divert to the State treasury ofKapurthala as Kapurthala income was very low;
that his personal income from Oudh estates and the State income of
F Kapurthala were merged till 1937 and that it was only as the result of the
efforts of Col. Fisher that a bifurcation was made with the Oudh estates being
e.aon_grk_~d !!~_.personal income of the Maharaja. The Maharaja, therefore,
pleaded with the Government of India that some of the immovable properties
purchased by him outside Kapurthala State such as in Mussoorie and Delhi
be permitted to be retained by him as his private properties and that the
G Government of India should declare them to be so.
The White Paper on Indian States indicates that the case of each Ruler
was considered individually and a decision was taken in each case depending
on the facts and circumstances pertaining thereto. Paragraph 157 in Part VII
H of the White Paper on Indian States places on record the manner in which
DRAUPADI DEVI v. U.O.I. [SRIKRISHNA, J.]
233
the Government of India solved this complex problem of distinguishing A
between private properties and State properties owned by the Rulers. The
State properties were merged finally into the Dominion of India while certain
properties recognised as private properties were permitted to be retained
under the full ownership of the erstwhile Rulers. Para 157 of the White Paper
on Indian States reads as follows:
"157. In the past the Rulers made no distinction between private
and State property; they could freely use for personal purposes any
property owned their respective States. With the integration of States
B
it became necessary to define and demarcate clearly the private
property. of the Ruler. The settlement was a difficult and delicate C
task calling for detailed and patient examination of each case. As
conditions and customs differed from State to State, there were to
precedents to guide and no clear principles to follow. Each cas~,
therefore, had to be decided on its merit. The Government of India
were anxious that the new order in States should be ushered in an D
atmosphere free from any controversies or bitterness arising from
any unhappy legacy of the past. A rigid and legalistic approach
would have detracted from the spirit of good-will and accommodation
in which the political complexion of the States had been so radically
altered. By and large the inventories were settled by discussion
between the representatives of the Ministry of States, the Rulers E
concerned and the representatives of the Governments of the
Province or the Union as the case may be. The procedure generally
adopted was that after the inventories had been received and
scrutinised by the Provincial or the Union Government concerned
and after the accounts of the States taken over had been examined, F
the inventories were discussed across the table and settled in a spirit
of give and take. In all discussions with the Rulers of the States
forming Unions, the Rajpramukhs were associated; the private
properties of Rajpramukhs were settled by the Government of India
in informal consultation with the Premiers of the Unions. This
method made it possible to settle these properties on an equitable G
basis within a remarkably short period and without recourse even
in a single case to arbitration. The settlements thus made are final
as between the States and the Rulers concerned."
Although, generally, user was the criterion for distinguishing State H
234
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A
property from private property, there was no such hard. and fast rule, and
depending on the facts and circumstances of each case appropriate decision
was taken by settlement with the Ruler concerned. This process was
obviously a long one stretching from. 20.9.1948 (the last date for furnishing
to the Raj Pramukh the inventory of all the immovable properties, securities
B and cash balances held by the Rulers as private property) till the actual date
of the decision. Article XII of the covenant of accession provided that if there
was a dispute as to whether any item of private property of the Ruler or State
property, it would be decided by a nominee of the Government of India
appointed in consultation with the Raj Pramukh and the decision shall be final
C and binding on all parties concerned, provided that no such dispute was
referable after 31.12.1948. According to the recitals in the White Paper, in
all cases tpe decision jointly taken by the Government of India after
discussion with the Ruler concerned and the Raj Pramukh was accepted by
the Ruler and no t:ase was referred for arbitration as provided under Article
XII of the covenant.
D
E
F
G
The correspondence between Maharaja of Kapurthala, Jagatjit Singh,
his son Paramjit Singh (Tika Raja) with the Government of India which has
been extensively quoted in the judgments of the learned Single Judge and
the J:?ivision Bench bears out what is stated in the White Paper. The tenor
of the letters written by the Maharaja to the Government of India does not
indicate that the Maharaja was raising a dispute with regard to the immovable
properties outside Kapurthala State.
On the contrary, the tenor of the
correspondence emanating from the Maharaja suggests that, having agreed
to the decision taken in the meeting with the Government of India's
representatives he was attempting to prevail upon the Government of India
to declare some of the properties as his personal properties for reasons which
he advanced. It is interesting to notice that at no point did the Maharaja of
Kapurthala take up the stand that the properties owned outside the Kapurth~la
State, particularly the suit property in Delhi, was beyond the purview of the
covenant and was his exclusive personal property.
During the ongoing process of identification and bifurcation of the
immovable properties into State and personal properties, Maharaja Jagatjit
Singh attempted to sell some land. On coming to know of the move of the
Maharaja, on 19.3.1949 a telegram (Ex.D2W4/l) was sent by the Raj
H Pramukh to Maharaja Jagatjit Singh calling upon him_ to refrain from doing
•
..
DRAUPADI DEVI v. U.0.1. [SRJKRISHNA, J.]
235
so when the process of identification of properties was going on.
While the discussions with the Government of India for identification
and classification of immovable properties held by the Maharaj a of Kapurthala
were still going on, it appears that Dewan Jarmani Dass, then Chief Mini$ter
A
of Kapurthala State, prevailed upon the Maharaj a to quietly sell the property
jointly to him and the original plaintiff, late R.M. Seksaria. Although, the B
Division Bench of the High Court has made scathing remarks that Dewan
Jarmani Dass had acted clandestinely and malafide in order to grab the
property even before the decision of the Government on the nature of the
property, it is unnecessary for us to pronounce on these facets of the matter
for the decision on legal issues does not tum upon these' findings.
C
The Government of India was not aware of the sale and conveyance
of the suit property to Dewan Jarmani Dass and the plaintiff, till or about
6.3.1950. It is only thereafter that a discussion took place on 7.3:1950
between the representatives of the Government of India headed by V.f.
Menon, Secretary, Ministry of States and the Maharaja of Kapurthala. Tqe D
minutes which were recorded on 11.3.1950, with reference to the suit
property, state:
"The sale of Kapurthala House in Delhi should be revoked. The
vendee should be asked to refund the consideration money to His E
Highness. This decision was communicated to Dewan Jarmani Dass
by Secretary."
On 14.3.1950, Paramjit Singh, who had by then become the Maharaja
of Kapurthala State, wrote to V.P. Menon, Secretary, Ministry of States in
which he referred to the. previous talk on the issue and said:
F
"Since my talk I find that present owner of t~e House i.e. Mis
Jarmani Dass and Seksaria Brothers are not prepared to voluntarily
rescind or cancel the sale deed ofKapurthala House in their favour."
He further stated:
"That my secretary, Shanti Sagar Mahendra, had been authorised
to pay the amount of Rs. 1.50 lacs to M/s Jarmani Dass and Seksaria
Brothers and get back the Kapurthala House at New Delhi if they
G
so agree and have the sale deed registered in his own name. In case H
236
A
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
this is not possible I request you to please be good enough as to ,
see that Kapurthala House, New-Delhi, is declared my personal and
private property and l am not made to return the money. "
(emphasis ours)
B This does not at all sound like any assertion of title to the suit property, but
more like an imploration to the Government of India to declare the property
as private property so that Maharaja was not required to refund the money
which he had taken from Mis Dewan Jarmani Dass and Seksaria Brothers.
C
The determination of the issue as to whether the suit property was the ·
private property of the Ruler of Kapurthala State recognised as such by the
Government of India or whether it was the State property of Kapurthala State,
which merged into the PEPSU and thereafter transferred by the Government
of India to the State of Punjab (Defendant No. 2), is crucial and decides the
fate of the present litigation. It is crucial because the plaintiff claims title
D from the Maharaja ofKapurthala; if the Maharaja's title to the suit property
was good, then the plaintiff has good title; conversely, if the Maharaja had
no title to the suit property as on the date of the conveyance dated 10.1.1950,
then the plaintiff gets no title and, therefore, his suit must fail. Nemo dat
quoad non habet.
E The Commands of 1940 and 1948:
The plaintiff attempted to prove his title by showing that the Maharaja
had a good title because the suit property was the private property of the
Maharaja bought from his personal funds and not the State property of
F Kapurthala purchased from State funds. Despite the allocation made by the
aide memoire on 1.3.1937 prepared by Col. Fisher, the plaintiffs case is that
by reason of the subsequent command of the Maharaja dated 1.1.1940 the
· classification made by the aide me!!!JJ!e .was overridden and the property
remained as personal propertrOf'"the Maharaja. Consequently, under t~e
covenant it was bound to be recognised as personal property whic_:ji-was
G guaranteed under the covenant. Since the suit propertyWas the personal
property of the Maharaja, the Maharaja had good title which had passed to
the· plaintiff, is the line of argument of the plaintiff. A number of legal
arguments in support and voluminous documents have been placed on record.
The Division Bench of the High Court meticulousfy considered everyone of
H the documents on record and totally disbelieved the case of the plaintiff as
DRAUPADI DEVI v. U.0.1. [SRIKRISHNA, J.]
237
to the existence of this alleged command of the Mahan1ja dated J. l.1940 and A
another alleged command dated 11.8.1948 declaring the suit property as his
private property. There is
serious controversy as to whether the said
documents were ever issued, whether the said documents were proved on
record, and if so, what the legal consequences would be. We may add here
that, apart from these two disputed documents, the only other document in B
which there is any reference to the command of 1940 (without indicating the
specific date) is a letter dated 11.4.1950 written by Dewan Jarmani Dass to
V.P. Menon which appears to have been written: "in order to clear my
position and to clear some misunderstanding" as to the sale of the said
property to Dewan Jarmani Dass. In this letter, it is stated that Maharaja of
Kapurthala in 1940 passed an order in unequivocal terms that 'Kapurthala C
House' should be considered as his personal property. Hence, Dewan Jarmani
Dass said this should be treated as personal property of the Maharaja and,
consequently, his own rights sh;:,uld remain protected.
Having carefully perused the documents placed on record, and considered D
the arguments of the learned counsel, we are inclined to agree with the
findings of the Division Bench about both these documents.
As to the
command of 1940, it has been held proved by the learned Single Judge only
on the basis of adverse inference and secondary evidence. The Division
Bench has correctly pointed out the circumstances under which secondary
evidence could have been let in did not exist at all. The inconsistency in the E
pleadings as to the particulars of the documents Jed to the resulting confusion
in the defendants admitting possession and denying possession in succession.
One thing, however, strikes us that in the entire correspondence, which the
Maharaja contemporaneously had up to the sale of the suit property, there
was no reference to this command at all. While it may not be possible to agree F
with the positive conclusion drawn by the Division Bench that this command .
was fabricated and clandestinely inserted by the plaintiff in the records of.
the Archives Department, we too agree that these documents have not been
proved in accordance with law.
The Division Bench of the High Court rightly points out that the aide G
memoire prepared by Lt. Col. Fisher on 1.3.1937 indubitably declared that
House in Delhi was a "State House". This document was signed by
Col.
Fisher in his capacity as Prime Minister as also by the Ruler of Kapurthala.
· There is no dispute aboutthis document, or that it had been signed by the
Ruler of Kapurthala. In other words, as early as 1.3.1937, the Maharaja of H
238
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
A
Kapurthaia accepted that the House in Delhi (the suit property) was State
property. It would appear that in order to help the plaintiff in his suit, the
third defendant, who is the grand son and successor of the Maharaj a, and the
plaintiff, introduced the theory that the Maharaja by his Commands dated
1.2.1940 and 11.8.1948 had nullified the effect of Lt. Col. Fisher's aide
B memoire dated 1.3.1937.
The fact.that there was no reference whatsoever to these documents in
any of the contemporaneous correspondence between the Ruler ofKapurthala
and the Government of India lends credence to the dubitable nature of these
two documents. In fact, at no point of time did the Maharaja put forward
C a claim with the Government of India that the suit property had ceased to
be State property and become his private property by reason of his aforesaid
commands or otherwise. As we have already noticed, the tone and tenor of
the correspondence between the Maharaja and the Government of India
during the material period was abjectly supplicant and demonstrated only an
D anxiety on his part to protect his privy purse and to bargain for certain
concessions from the Government. Never was there an assertion of rightful
title to the suit property, his efforts being directed towards wresting greater
concessions. The Division Bench has rightly analysed the evidence on record
and came to the finding that till 1934, the income from Oudh estates and
Kapurthala State were treated as one consolidated account. It was only on
E the advice of the Lt. Col. Fisher that the accounts were separately maintained
after 1936. Even in the Note dated 28.5.1948 (Vol. 9 page 17) sent by the
Maharaja and the Tika Raja, President of State Council to V.P. Menon,
Secretary, Ministry of States, it is pointed out that the income from Oudh
estates were merged in the income ofKapurthala State upto 1934, and it was
F bifurcated only on the recommendation of Lt. Col. Fisher. The reason for this
G
is explained thus:
"This step was taken only with the idea of earmarking the income
of the Oudh estates for my Civil List. As it has been my desire for
some time to amalgamate once again the income of my Oudh estates·
with the revenue of my State, I am pleased to order that steps should
be taken with regard to the amalgamation of the Oudh estates with
the Kapurthala State."
Thereafter, the Maharaja pleads his case that he should be granted Rs. 25 lacs
H to be transferred to his househ~ld account out of the State Reserve Fund.
DRAUPADI DEVI v. U.O.I. [SRIKRISHNA, J.]
239
On 4.6.1948, the Ministry of States wrote to the Maharaja that A
transferring such a large amount would invite serious public criticism and
would not be acceptable to the Government. Discussions followed thereafter.
The Maharaja took the advice of Chaudhary Niamat Ullah, a retired Judge
of the Allahabad High Court, and addressed a note dated 24.8. I 948 to the
Chief Minister of Kapurthala. Even in the memorandum the plea made was B
with regard to injustice that was likely to result: "if my privy purse is
determined solely on the basis of the revenue of the Kapurthala State
Property". The aide memoire prepared by the Maharaja in July, I 948 (Ex.
D2/5) also reiterates this.
In view of this clear evidence, the Division Bench was justified in its C
finding that the Maharaja of Kapurthala had clearly admitted that the income
from Oudh estates formed an integral part of State ofKapurthala and all along
maintained in his correspondence with the Government of India that the
nature of the suit property could not be decided merely from the source of
income aspect.
D
Article 363 of the Constitution of India I Act of State:
For the appellants, it was contended that the source of income
was not really the index of the nature of the property, namely, whether it was
State property or private property of the Maharaja, but that the principle E
adopted at the time of accession was the principle of user of the property.
The learned counsel for the appellants urged that the evidence on record
shows that the suit property in Delhi had been personally used by the
Maharaja all along and at no point of time was it used for State purposes.
Hence, he contended that this property was the private property of the F
Maharaj a.
Even assuming that the learned counsel for the appellants may be right
in his contention that applying the test of user the suit property was liable
to be determined to be the private property of the Maharaja, the question that G
arises is: Did the Government of India recognise the suit property as the
private property of the Maharaja? If they did not, could a suit be maintained
for a declaration that the suit property was the private property of the
Maharaja? Answering this question, the Division Bench holds that the suit
was not maintainable and barred by reason of Article 363 of the Constitution
of India.
H
A
B
c
D
E
F
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SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.
The learned counsel for the State of Punjab and the Union of India
contended that the suit of the plaintiff was clearly barred and the court had
no jurisdiction to entertain the suit by reason of Article 363 of the
Constitution of India. Article 363 reads thus:
"363. Bar to interference by courts in disputes arising out of certain
treaties, agreements, etc.