# HIS HIGHNESS MAHARAJA PRATAP SINGH v. HER HIGHNESS MAHARANI SARO.TINI DEVI AND ORS

- **Citation:** [1993] Supp. 1 S.C.R. 607
- **Court:** Supreme Court of India
- **Decided:** 1993-08-17
- **Case number:** Civil Appeal No. 1208 of 1990
- **Bench:** Kuldip Singh, S. Mohan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/his-highness-maharaja-pratap-singh-v-her-highness-maharani-saro-tini-devi-and-11980
- **Pages:** 42

## Headnote

B
Hindu Law: Hindu Succession Act 1956. Section 5(ii):-
Succession to estate a/Indian Ruler-Held, mle of primogeniture applicabl&-Said mle applies not only to the Rulership (Gaddi), but also other C
property-Only exception is property held by a Ruler in capacity other than
Sovereign-Person claiming such exception will have to plead and establish
the same.
Hindu Law-lmpartibility of Estat&-Rule of Primogenitur&-To be
established by custom-In the case of the Sovereign Ruler, these are presumed D
to exist-Held, mle of primogeniture continued even after 1947-48--Under
Article 372, the Law of Succession relating to primogeniture continues until
it is repealed--Constitution of India-Article 372.
Covenant dated May 15, 1948, entered into between Central Govemment and the State of Nabha-Held, makes a clear distinction between private E
properties and State properties.
Benami sales-Principles reiterated and applied.
Code of Civil Procedur&-Section 11--Res judicatct-Not armlicable
where the facts and the law applicable are totally different.
F
The controversy in the present appeals relates to two properties in
Simla and Delhi respectively, which were purchased by R.S. the erstwhile
Ruler of the Princely State of Nabha. In view of the restriction imposed by
the British upon purchase by Princes of property outside their own States,
the properties were purchased benami in the name of others. Relinquish- G
ment deeds were subseqnently executed by the ostensible owners in the case
. of the Simla' property, in favour of the three sons and widow of the late
RS. and in the case of the Delhi property, in favour of Nabha State. Upon
the death of R.S. in 1942, his elder son P.S. became the Ruler by the rule
of primogeniture. Disputes arose between P.S. on the one hand and the H
607
608
SUPREME COURT REPORTS [1993] SUPP. l S.C.R.
A other heirs of R.S. on the other, with P.S. claiming the properties as his
private, exclusive properties on the basis of the rule of primogeniture, and
the other heirs contending that the properties were in fact the personal
properties of R.S. to which the rul• of primogeniture did not apply and
therefore, they had a share in the same.
B
A suit for partition and in the alternative for joint possession filed·
by the other heirs in respect of the' Simla property ultimately led to a
judgment of a Division Bench of the Himachal Pradesh High Conrt
holding that the suit was liable to be dismissed because it was not established that the said property was purchased benami from .ont of the
C personal funds of R.S. or that it was on that account his personal property.
The other heirs appealed to the Supreme Court byway of Civil Appeal No.
1208 of 1990.
A suit for possession filed by P.S. in respect of the Delhi property
ultimately led to a judgment of a Division Bench of the Delhi High Court
D holding that the said suit was liable to fail because the property was the
personal property of R.S. and not of Nabha State and, therefore, upon his
death it devolved upon PS, his brothers and also the wjdow of PS under
the Hindu Women's Right to Property Act 1937. P.S. appealed to the
Supreme Court by way of Civil Appeal No. 5857 of 1983. In Civil Appeal
E No. 1208 of 1990 filed by the other heirs, the Court framed the following
points for determination:
(1) What is the Rule of Succession applicable to the State ofNabha?
(2) Did the Simla property belong to the State of Nabha or was it
F the private property of R.S.?
G
(3) Whether the Judgment of the Allahabad High Conrt holding that
the rule of primogeniture applied only to succession to the Gaddi and not
succession to private properties as distinct from State properties would
constitute res judicata.
Dismissing Civil Appeal No. 1208 of 1990, and answering the points
as follows, this Court
HELD : 1. Though impartibility and primogeniture in relation to
Zamindari esl1!tes are to be established by custom, in the case of a
H sovereign ruler, they are presumed to exist. The rule of primogenit

## Text

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HIS HIGHNESS MAHARAJA PRATAP SINGH
A
v.
HER HIGHNESS MAHARANI SARO.TIN! DEVI AND ORS.
AUGUST 17, 1993
[KULDIP SINGH AND S. MOHAN, JJ.]
B
Hindu Law: Hindu Succession Act 1956. Section 5(ii):-
Succession to estate a/Indian Ruler-Held, mle of primogeniture applicabl&-Said mle applies not only to the Rulership (Gaddi), but also other C
property-Only exception is property held by a Ruler in capacity other than
Sovereign-Person claiming such exception will have to plead and establish
the same.
Hindu Law-lmpartibility of Estat&-Rule of Primogenitur&-To be
established by custom-In the case of the Sovereign Ruler, these are presumed D
to exist-Held, mle of primogeniture continued even after 1947-48--Under
Article 372, the Law of Succession relating to primogeniture continues until
it is repealed--Constitution of India-Article 372.
Covenant dated May 15, 1948, entered into between Central Govemment and the State of Nabha-Held, makes a clear distinction between private E
properties and State properties.
Benami sales-Principles reiterated and applied.
Code of Civil Procedur&-Section 11--Res judicatct-Not armlicable
where the facts and the law applicable are totally different.
F
The controversy in the present appeals relates to two properties in
Simla and Delhi respectively, which were purchased by R.S. the erstwhile
Ruler of the Princely State of Nabha. In view of the restriction imposed by
the British upon purchase by Princes of property outside their own States,
the properties were purchased benami in the name of others. Relinquish- G
ment deeds were subseqnently executed by the ostensible owners in the case
. of the Simla' property, in favour of the three sons and widow of the late
RS. and in the case of the Delhi property, in favour of Nabha State. Upon
the death of R.S. in 1942, his elder son P.S. became the Ruler by the rule
of primogeniture. Disputes arose between P.S. on the one hand and the H
607
608
SUPREME COURT REPORTS [1993] SUPP. l S.C.R.
A other heirs of R.S. on the other, with P.S. claiming the properties as his
private, exclusive properties on the basis of the rule of primogeniture, and
the other heirs contending that the properties were in fact the personal
properties of R.S. to which the rul• of primogeniture did not apply and
therefore, they had a share in the same.
B
A suit for partition and in the alternative for joint possession filed·
by the other heirs in respect of the' Simla property ultimately led to a
judgment of a Division Bench of the Himachal Pradesh High Conrt
holding that the suit was liable to be dismissed because it was not established that the said property was purchased benami from .ont of the
C personal funds of R.S. or that it was on that account his personal property.
The other heirs appealed to the Supreme Court byway of Civil Appeal No.
1208 of 1990.
A suit for possession filed by P.S. in respect of the Delhi property
ultimately led to a judgment of a Division Bench of the Delhi High Court
D holding that the said suit was liable to fail because the property was the
personal property of R.S. and not of Nabha State and, therefore, upon his
death it devolved upon PS, his brothers and also the wjdow of PS under
the Hindu Women's Right to Property Act 1937. P.S. appealed to the
Supreme Court by way of Civil Appeal No. 5857 of 1983. In Civil Appeal
E No. 1208 of 1990 filed by the other heirs, the Court framed the following
points for determination:
(1) What is the Rule of Succession applicable to the State ofNabha?
(2) Did the Simla property belong to the State of Nabha or was it
F the private property of R.S.?
G
(3) Whether the Judgment of the Allahabad High Conrt holding that
the rule of primogeniture applied only to succession to the Gaddi and not
succession to private properties as distinct from State properties would
constitute res judicata.
Dismissing Civil Appeal No. 1208 of 1990, and answering the points
as follows, this Court
HELD : 1. Though impartibility and primogeniture in relation to
Zamindari esl1!tes are to be established by custom, in the case of a
H sovereign ruler, they are presumed to exist. The rule of primogeniture
·
MAHARATA PRAT AP SINGH v. MAHARANI SAROJINI DEVI
609
applies not only to the Rulership (Gaddi) but also to other property. The A
distinction between public and private property is not correct, since it runs
counter to the basis attributes of sovereignity. Being an absolute monarch
or sovereign, the Ruler was the owner of all the property in the State. If
some one asserts that to a particular property held by a sovereign the legal
incidents of sovereignity do not apply, it will have to be pleaded and
established by him that the said property was held by the sovereign not as
a sovereign but in some other capacity. [625-F; 626-H, 627-A, H; 628-A]
Vashit Narain Shanna v. Dev Chandra, [1955] 1 SCR 509, referred
to.
Revathinnal Balagopala Vanna v. His Highness Sri Padmanabhadasa
Vanna, [1993] Suppl.1SCC233; Vishnu PratapSingh v.State of M.P., [1990]
Supp. SCC 43; Elphinstone v. Bedrcechund, 12 ER 340; Baboo Gunsesh Dutt
Singh v.Maltaraja Moheshur Singh, Vol. VI (1854-7); Moore's Indian Appeals
B
c
164, Jai Kaur v.Sher Singh, (1960] 3 SCR 915;Saliq Ram v.MayaDevi, AIR
(1955] 1 SCR 1191; Madhav Rao Jivaji Rao Scindia v. Union of India (Privy D
Purses Case), AlR (1971) SC 530; D.S. Meramwala Bhayavala v. Ba Shri
Amarba Jethsurbhai, Vol. 9 (1968) I. L.R. Gujarat 966 and Mirza Raja Shri
Pushavathi Viziaram Gajapathi Raj Manne Sultan Baltadurv. Shri Pushavathi
Vtswerswar Gajapathi Raj, [1964) 2 SCR 403, relied on.
Sir W.H. Ratigan's Digest of Customary Law in the Punjab and
White Paper on Indian States (Para 157) referred to.
E
2. The rule of primogeniture continued even after 1947-48, and under
Article 372 of the Constitution the law of succession relating to primogeniture continues until it is repealed. Article XII of the Covenant entered into F
between the Rulers of Nabha State and the Government of India shows
that there is a clear distinction between the private properties and the
State properties. Such private properties must be belonging to the Ruler
and must be in his use and enjoyment even earlier. [630-D; 632-A)
G
Thakore Shri Vinaysinghju v. Kumar Shri Natwarsingji, [1988) Supp.
SCC 133 and Rajkumar Narsingh Pratap Singh Dea v. State of Orissa, (1964]
7 SCR 112, relied on.
Mulla's Hindu Law, Sixteenth Edition at page 766; Rajya .Sabha
Debates, [1954] pages 7115 and 7116 and White Paper on Indian States, H
610
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A para 157, referred to.
3.1 The question whether a particular sale is benami or not is largely
one of fact. For determining this question, while no absolute l'ormule or
acid test uniformly applicable in all situations can be laid down, yet in
weighing the probability and gathering the relevant indicia, the Courts are
B usually guided by the following circumstances: (636-C]
(1) The source from which the purchase money came; (2) the nature
and possession of the property after the purchase; (3) motive if any for
giving the transaction a benami colour; ( 4) the position of the111arties and
C the relationship if any between the claimant and the alleged benamidar;
(5) the custody of the title deeds after the sale and (6) the conduct of
the i:mrties concerned in dealing with the property after the sale. The
above indicia are not exhaustive and their ellicacy varies according to the
facts of each case. Nevertheless No. 1 viz. the source whence the purchase
money came, is by far the most important test for determining whether the
D sale standing in the name of one person, is in reality for the benefit of
another. [636-D-F]
E
F
Jayadaya/ Poddar v. Bibi Hazra, (1974) 2 SCR 90, relied on.
Mayne's Hindu Law (13 Edition) 1201, referred to.
3.2 Applying the above well recognised tests for determining whether
a particular sale is benami, it is clear that the Simla a property was
acquired by the Nabha State benami and has been treated right from the
date of purchase as belonging to the State of Nabha. From the evidence on
record it is clear that the suit property was never the personal property of
R.S. (638-B)
4. The Judgment of the Allahabad High Court relates to a Commoner i.e. the Ruler who had been deposed. The facts and the law which
were applicable were totally different. Therefore it would not constitute res
G judicata. (638-C, El
Allowing Civil Appeal No. 5857 of 1983 tiled by PS, this Court
Held:
What is decisive are the user and enjoyment. Unless and until it is
H established by such at user and enjo)ment that the property was private,
).
MAHARAJAPRATAPSINGH v. MAHARANJSAROJINIDEVI [MOHAN,J.]
611
it cannot be claimed to be so. The evidence on record indicates that'the A
Delhi property belonged to the State of Nabha. [646-C, 647-A]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5857 of
~.
.
From the Judgment and Order dated 23rd May, 1980 of the Delhi B
High Courtin Civil Regular first Appeal No.(OS) 6 of 1977.
WITH
Civil Appeal No. 1208 of 1990.
c
Arnn Mohan, J.M. Mukhe, Shanti Bhushan, N.H. Hingornai, R.P.
Wadhawani, M.K. Garg, Lokesh Kumar, H.S. Paul, Inderbir Singh, R.K.
Agnihotri, Mukul Mudgal, P.H. Parekh, Ms. Smriti, Ms. K.Hingorani, Ms.
Priya Hingorani, M.N. Shroff, Ms. Reena Bhandari, E.C. Agrawala Chabil
Das, Arrant Palle, Atul Sharma, M.N. Bhatt, Ms. Rina Agrawal, Janendra D
Lal, J.C. Sethi, L.K. Pandey, Vijay Kumar Verma and B. Mohan for the
appearing Parties.
The Judgment of the Court was delivered by
MOHAN,_J. The facts leading to these appeais are as under:
E
N abha was a Princely State in pre-independence India. It was one of
the three Phulkian States. The other two were Patiala and Jind.
In the matter of succession to Chiefship, the rule of primogeniture
was followed by the Phulkian families. This rule was a.lso followed in the
State of Nabha. While the eldest son became the Chief, provision was made
for the younger sons for their maintenance by way of grant of jagir, land
or purse.
F
When the British had paramountcy in Indi<) they subjected the ruling G
chiefs to various restrictions. One such restriction was about the purchase
of the property outside the territory of their own State. The policy was
enunciated to discourage the acquisition, whether direct or indirect, by
Sovereign or Feudatory princes of any lands in British Territory, however
and from whomever acquired. This policy was communicated to all native
State in Punjab including the State of Nabha.
H
612
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A
Maharaj a Ripudaman Singh was the Ruling Chief of Nabha State in
the early twenties of this century. His 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 resided in
Kodaikanal till 1942 when he died. He left behind his wife, Sarojini Devi,
three sons, Pratap Singh, Kharagh Singh and Gurbaksh Singh and two
B daughters, Kamla Devi and Vimla Devi.
Sarojini Devi, wife of Ripudaman Singh arid her children were residing in England from 1934 to 1944. She returned to India when her eldest
son, Pratap Singh was to receive administrative training as he was to
C become the Ruler of Nabha State by the applicability of rule of primogeniture. It also requires to be stated. that the entire 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, Chandra Prabha Kumari and
two minor daughters, Krishna Kumari and Tuhina Kumari and a minor son
D
Vivek Singh.
'
The property known as 'Sterling Castle' situate in Simla was owned
by Col. S. Appaji Rao Sitole of Gwalior. In view of the restriction relating
to acquisition of property imposed by the British Government Ripudaman
Singh purchased his property in the name of his friend Dr. Tehl Singh. The
E sale deed was dated December 21, 1921. Dr. Tehl Singh executed the deed
of relinquishment on 30th April, 1952. By the said Deed, Dr. Tehl Singh
relinquished his title and conferred it upon the three sons and the widow
of late Ripudaman Singh. It is this property which forms the subject-matter
of the suit.
F
In 1957, dispute arose between the parties. Pratap Singh claimed
absolute right over this property denying the title of the other heirs of
Ripudaman Singh. When the Municipal Committee, Simla refused to effect
mutation in their names in view of the objection raised by Pratap Singh,
notice was issued to the Municipal Committee and the Sub-Registrar,
G Simla that the refusal to do so was not proper. Similarly, notice was issued
to Pratap Singh. On March 31, 1961, the two younger brothers sought leave
from the Central Government under Section 86 read with Section 87-B of
the Code of Civil Procedure to file a suit against Pratap Singh. That was ·
refused in July 1961. On January 30, 1962, Pratap Singh sold this property in favour of 'the save the Children Fund', a society incorporated in the
H United Kingdom for a sum of Rs. 50,000.
•·
MAHARAJ A PRATAP SINGH v. MAHARANI SARO.TINT DEVI [MOHAN, J.]
613
Sarojini Devi, Kharagh Singh and the minor children of Gurbaksh A
Singh filed a suit for partition and in the alternative for joint possession
and also for the recovery of mesne profits. ft was averred in the plaint that
the plaintiffs had a share in the 'Sterling Castle' as the heirs of late
Ripudaman Singh. Though the property ostensibly stood in the name of
Dr. Tehl Singh it was Ripudaman Singh who was the real owner, the sale
consideration having been provided by him. Therefore, Pratap Singh had
no right to sell the property in favour of defendants 1 and 2, namely, 'the
Save the Children Fund' and its Administrator. The said sale was not
binding on the plaintiffs. Praying for the above said relief mesne profits
were claimed al the rate of Rs. 5,000/- for a period of three years comB
mencing from 1.2.62 till the date of suit and the future mesne profits.
C
While the suit was pending defendants l and 2 sold the property in
favour of defendants 4 to 8 by. a sale deed dated 1.S: 1970. The sale
consideration was Rs. 1,40,000.
Though originally the suit came to be filed before the learned Senior D
Sub-Judge, Simla, after the merger of the are~ in Himachal Pradesh,
original jurisdiction came to be exercised by the Delhi High Court. On the
formation of the Himachal Pradesh High Court, the snit (C.S. No. 14 of
.1968) was transferred to the original side of that Court.
In the written statement of the defendants (other than the third E
defendant) it was urged that:
(1) Pratap Singh was a necessary party in so far as he had not been
joined the suit was bad for non-joinder.
(2) Inasmuch as the Central Government refused leave under Section F
86 read with Section 87-B of the Code of Civil Procedure against Pratap
Singh, the suit could not be filed even against his assignees.
(3) The suit was not maintainable for partial partition since· there are
other properties left by Ripudaman Singh.
. ( 4) From 1942 Ripudaman Singh had remained in possession of the
property as full owner for over 20 years and had, therefore, perfected his
title.
G
\~) In the merger agreement executed by Pratap Singh in tavour of
Central Government the suit property was claimed as exclusive property H
614
SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.
A of Pratap Singh. Such claim is conclusive as to ownership. If, in fact, Nabha
State was the owner by rule of primogeniture Pratap Singh become the
owner. In any event, the defendants were bona fide purchasers without
notice. Therefore, the sale in their favour will not be affected.
The learned Single Judge came to be conclusion that the property
B was purchased Benami by Ripudaman Singh. On his death, it devolved on
the entire joint family. The rule of primogeniture would not be applicable
to his personal property since it applied only to the properly of the State.
Merely because Pratap Singh was declared as a Ruler of Nabha State he
could not become the owner of this property. Thus, answering the issues
C in favour of the plaintiffs, he granted a preliminary decree for partition and
recovery of me5ne profits in favour of the plaintiffs and the third defendant.
Aggrieved by the same, the defendants took up· the matter in appeal
(R.F.A No. 22 of 1973).
The Division Bench reversed the judgment of the learned Single
D Judge and held that the plaintiffs had failed to establish that the 'Sterling
Castle' was purchased Benami in the name of Dr. Tehl Singh from out of
the personal funds of Ripudaman Singh or that it was, on that account, his
personal property. The failure to establish this basic fact must result in the
dismissal of the suit. Accordingly, the appeal was allowed. It is under these
circumstances, Civil Appeal No. 1208 of 1990 has come to be preferred.
E
Civil Appeal No. 5857 of 1983 arises out of the judgment of the Delhi
High Court in R.F.A. (OS) No. 6 of 1977 dated 23rd May, 1980. Pratap
Singh filed Suit No. 394 of 1966 for possession of House No. 34, Alipur
Road, Civil Lines, Delhi. The defendants are mother Sarojini Devi, two
brothers and two sisters. One of the brothers, namely, Gurbaksh Singh,
F having died, bis 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 Seller was one Shri Ram Popli.
The sale deed was executed on 8.4.1922 for a sum of Rs. 1,25,000. The
property was managed by the officials of Nabha State. In 1937, Gurnarain
G Singh Gill executed a deed of release in favour of Nabha State. The
property continued to be dealt with as belonging to Nabha State even after
Pratap Singh ascended the Gaddi. After independence the State of Nabha
acceded to the Indian Union. On 15.5.48, a Covenant was entered into
between the Central Government and 8 Princely States, all of which
merged to form a State Union called Patiala and East Punjab States Union
H (PEPSU), The plaintiff submitted an inventory of the properties. As per
MAHARAJA PRATAP SINGH v. MAHARANISAROJINIDEVI (MOHAN,J.]
615
paragraph 2 of Article XII the said inventory included the house in A
question. On that basis, it was urged by the plaintiff that it qecame his
private property and he was exclusive owner thereof. Thus, the suit for
possession.
In opposing the claim of the plaintiff the defendants contended that
it was a private property of Ripudaman Singh and continued to be so. The
Covenant had recognised this position and had accordingly declared. The
Covenant did not create or confer a new right. On the contrary, the
intention of the Covenant is to receive claims, scrutinise the same and
finally put at rest the controversy, if any, between the Ruler and the
Government of the States Union once and for all.
The learned Single judge came to the conclusion that the suit properB
c
ty was the property of Nabha State. It was not a personal property of
Ripudamari;Singh. He further proceeded to hold that Ripudaman Singh
could hold the property in his personal capacity. Upto the date of the
Covcnant the property was that of Nabha State. After 4th of May, 1949 the D
ownership changed. On this basis, the suit came to be decreed. Aggrieved
by the same, the defendants took up the matter in appeal (R.F.A. (OS)
No. 6 of 1977).
The Division Bench was of the view that the Covenant dated 5th May,
1948 does not create any new rights. It only recognises and declares the E
pre-existing rights. The claim of Pratap Singh as private property has been
established. The position regarding ownership of the property continued
unchanged even after Pratap Singh ascended the Gaddi. Thus, it was
concluded that the property was the personal property of Ripudaman
Singh. Upon his death, it devolved upon Pratap Singh and his brothers.
Sarojini Devi being the widow gets her right under Hindu Women's Right F
to Property Act of 1937 as Ripudaman Singh died in 1942. Accordingly;
the appeal was allowed and Suit No. 394 of 1966 was dismissed. It is against
this dismissal of the suit C.A. No. 5857 of l.983 has come to be preferred.
In Civil Appeal No. 1208 of 1990 Mr. Hingorani, Leaned counsel for G
the appellant would submit that under the impugned judgment the Division
Bench has accepted to the findings of the learned Single Judge on three
important points:
(1) The rule of primogemture was followed in the State of Nabha in
regard to succession to Chiefship or Gaddi.
H
616
SUPREMECOURTREPORTS [1993] SUPP. lS.C.R.
A
(2) Ripudaman Singh's own personal properties as distinct from
State properties and succession to his personal properties were governed
by Mitakshara School of Hindu Law.
(3) The inclusion of the suit property in the inventory furnished by
Pratap Singh, as his private property, would not deprive the original owners
B of the share as the heirs of the father.
These findings are independent of the findings covered by the decree
and would operate as res judicata. The only surviving issue in the appeal is
whether the suit property is the personal property of Pratap Singh or was
he owning the property as Karta of Joint Hindu Family? Having regard to
C the facts of this case, it is clear that Pratap Singh could not have purchased
suit property as State property in the year 1921.
During the Rulership Pratap Singh had treated the estate of his
father as joint family property. Documentary evidence supports this argument. Exhibit B dated 3rd December, 1943 referred to the ornaments and
D other articles of the widows of the previous Rulers of Nabha State. These
properties were private properties of-the Ruler, distinct from State properties.
Exhibit F is an indemnity bond given by Pratap Singh in favour of
E the Imperial Bank of India against any claim by the legal representatives
to the estate of his father.
Exhibit P.W. 3/B is a letter dated 30th October, 1956 form the Chief
Secretary PEPSU to Deputy Secretary, Government of India in respect of
loan of about Rs. 4,00,000 advance to Pratap Singh in J.947 against the
F estate cif his father.
The learned Single Judge had given due importance to these documents. The Division Bench erred in treating lightly of them.
In terms of Artide XII of the Covenant dated 20th August, 1948
G Pratap Singh had submitted a list of his private properties to Raj Pramukh
of PEPSU. That included Sterling Castle, 34, Alipur Road and 11 other
properties. Article XII postulates the Ruler can include in his inventory
only those properties as distinct form State properties, at that time.
Pratap Singh had, all along treated this estate, left by his father as
H joint family property. This is confirmed by his application dated 22nd of
MAHARAJ A PRATAP SINGH v. MAHARANI SARO JIN! DEVI [MOHAN, J.]
617
February, 1949. It requ1res to be noted that the application was filed after A
the submission of his inventory of private properties to the Raj Pramukh .
•
In the said application filed before the Court of Subordinate· Judge, Delhi,
for grant ofJetters of administration, it was clearly averred by Pratap Singh
that his father had left properties in different places in India including
Delhi. He, being the head of the family, was the best person to administer
the estate of the deceased. It was on this basis letters of administration B
were granted. It is a vital piece of evidence to show how Pratap Singh
himself treated the property.
On 4th May, 1949, Pratap Singh received a letter from Raj Pramukh
in respect of his inventory of private properties. That i"duded Sterling C
Castle and 34, Alipur Road, Delhi amongst other private properties.
Merely because the Municipal Committee, Simla did not bring on
record the names of the beneficieries under the deed of relinquishment by
Dr. Tchl Singh, effect mutation accordingly does not mean the rights of the D
appellant are, in any way, lost. The Allahabad High Court has ·held in a
judgment between the same parties that the rule of primogeniture applied
only to succession to the Gaddi and not succession to his private properties
as distinct. from the State properties. That judgment will constitute res
judicata. The Division ·Bench ought to h~ve given weight to the said
judgment. The deal of relinquishment executed by Dr. Tehl Singh conE
elusively establishes that the suit property is a joint family property. It
requires to be carefully noted that the relinquishment has not been, disputed in the written statement of any other respondent. In fact, it could
not be disputed since the learned counsel for the defendant had made
statement under Order X Rule. 1 of the Code of Civil Procedure that it
was not within the knowledge of defendants 1 and 2 that Ripudaman Singh F
had purchased the property in the name of Dr. Tehl Singh in 1921.
Defendants 1 and 2 had also no knowledge of relinquishment dated 30th
April, 1952. In view of this, the question of going into the validity of
relinquishment did not arise. Though Pratap Singh was called upon to
produce the original deed of relinquishment he did not do. so. It was under G
these circumstances, a registration copy came to be filed. The Division
·Bench has clearly overlooked this important aspect of the matter. Further,
Dr. Tehl Singh, having died even before the evidence was recorded in 1970,
his evidence could not be procured. In view of all this, the finding of the
Division Bench in relation to the deed of relinquishment cannot be supported. Article 363 cannot constitute a bar to decide the nature of the H
618
SUPREME COURT REPORTS [1993] SUPP. l S.C.R.
A ownership with reference to the property in question.
In opposition to this, Mr. D.D. Thakur, learned counsel would submit
that there is absolutely no evidence in this case that Ripudaman Singh was
having large funds from Sarfa Khas which came to be utilised by Sarojini
Devi for purchase of the suit property. Excepting the oral testimony which
B has been rightly disbelieved, there is not a single document to prove that
the property was purchased benami in the name of Dr. Tehl Singh. Right
from inception, the property was treated as belonging to the State. The
Municipal Registry also bears this out. If really, that be so, rightly a
declaration was mad~ by Pratap Singh on 22nd February, 1949 while
C submitting the list of properties as his personal property. The ostensible
title of Dr. Tehl Singh cannot be put against because that cannot militate
against the treatment of the property as belonging to the State coupled with
the entries in the Municipal Register. As rightly held by the Division
Bench, the onus of proof cannot be cast on these respondents to prove that
the property was purchased by the State out of its funds.
D
The letter of administration was, no doubt, asked for, but that only
relates to bank accounts.
A careful reading of the White Paper Shows that there was no
distinction between private and public property made by the Ruler. Lastly,
E it is submitted, as seen from Exhibits D-3 to D-6, the records of Simla
Municipality clearly establish that the property belongs to the Nabha State.
In view of this, it is submitted that no inference is warranied with the
impugned judgment.
Mr. Arun Mohan, learned counsel, would submit that the question
F in this case is, whether acquisition of Alipur Road property by Ripudaman
Singh was in a capacity other than the Ruler of Nabha State? Jn other
words, at the time of Ripudaman Singh's removal and exile in 1923 or at
the time of his being formally deposed in 1928 the property was separated
from the State of Nabha or retained by him personally or exclusively in
G 1937. When Gurnarain Singh Gill, the ostensible owner, relinquished his
property, the question would be whether the relinquishment was in favour
of Gurcharan Singh (formally Ripudaman Singh) who was ,by then only a
subject or did he do so in favour of State? The learned Single Judge
proceeded mi the basis that there was a dual capacity. There is no such
dual capacity in law. He came to the conclusion that the evidence estabH lished purchase by the State. When the Division Bench held that the
MAHARAJ A PRA TAP SINGH v. MAHARANI SAR OJ IN! DEVI (MOHAN, J.J . 619
purchase was by Nabha State it did not have regai:d to the Acts of Stat~' iii. A
1923-28 on the one hand and the 1942 succession on t)ie other. ·
' ·
Equally, the Division Bench failed to note that the property belonged.
to Nabha State and not to Gurcharan Singh. Even after Ripudaman Singh
was deposed, Gurcharan Singh had nothing to do with this property. The
finding of the Division Bench that the Covenant dated 5th May, 1948 only B
recognises and declares the pre-existing rights is wrong both in law and in
fact.
It is important to note that in so far as 1923-28 period is concerned
they are Acts of State, there was no death, no succession opened. ThereC
fore, there was no application of Mitakshara. When in 1928 Ripudainan
Singh was formally deposed it extinguished every vestige of his title or
claim. When Pratap Singh was installed, title thereto came to vest in him
and the said title continued and has not been defeased at any point of time
subsequently. If .this be so, the findings of the Division Bench are liable to
be set aside.
D
Countering these submissions, it is argued by 'Mr. Hingorani, learned
counsel, that the case of the appellant before the High Court was that even'
before the date of convenant an Indian Ruler whose capacity other than
that a Ruler acted only for the State, being its sovereign. Any property
purchased by him, in his own name or in the name of another person, E
would be purchased by the State. The tJ_igh Court has correctly found that
such a contention is not ac;Jepi.able in view of the Articles of the Covenant.
It is submitted that the kuler's private property is not governed by
any of the provisions of the Constitution which provide certain privileges,
rights and powers which are being enjoyed by the Ruler.
F
The Division Bench followed the ruling of the Allahabad High Court
involving identical issues between the parties. It was ·on. the basis the
conclusions were arrived at that the Rule of Primogeniture applied only to
succession to Rulership and not to be private property. The ruling of the G
High Court had become final and, therefore, is not open to question. In
suppor~ of this, reliance is placed on Vashit Narain Sh.anna v. Dev Chandra,
[1955) 1 SCR 509. The same view was .. taken by this Court in Revathinnal
Balagopala Varma, v. His Highness Sri Padmanabhadasa Vanna,Jl993]
Supp. 1 SCC 233. Learned counsel.wants to draw our attentiOl).1.0.paragraphs 5 and 10 of the Judgment.
H
620
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A
After the merger ·of State Article XIV provides that succession,
according to law and custom to the Gaddi of each covenanting State, is
guaranteed. Article XII stresses that each Ruler of a covenanting State
could include only such properties in his inventory of private properties
which belonged to him as distinct from State properties.
B
When Pratap Singh was installed as Ruler in 1941 he never passed
any Order or Farman in respect of the suit property. If the immovable
pr.operty has been purchased out· of the income of the imputable State it
· is a separate property of. the holder of the· impartible State. In so far as
there is no evidence that this property came to be merged to the impartible
State, succession will be governed by the general principles of Hindu Law.
C Therefore, it is submitted that no exception could be taken to the judgment
under appeal.
We will now take up Civil Appeal No. 12()8 of 1990. The facts have
the already been set out. Therefore, the basic question in this case would
D be, whether the acquisition of Sterling Castle by Ripudaman Singh in 1921
was in a capacity other than the Ruler of Nabha? It is the appellant in this
case who pleads benami. In view of the interdict on the native Ruler, to
purchase any immovable property in erstwhile British India, n·ecessarily
resort was had to this course of benami. It is well-settled in law that where
benami is pleaded the five principles will have to be taken into considera-
. E tion.
F
It has been held in Mayne's Hindu Law 13th Edition at page 1201 as
under:-
"(1) Source of the purchase money;
(2) nature and possession of the property and custody of the title
deeds;
(3) motive;
G
(4) relatio!'ship between the parties;
(5) conduct of the parties in dealing."
· The points that fall for determination are:
H
(l) What is the rule of succession applicable to the State of Nabha?.
'
MAHARAJAPRATAP 5INGH ''· MAHARANISAROJTNIDEVI[MOHAN,J.)
621
(2) Did Sterling Castle, the suit property, belong to the State of A
Nabha or the private property of Ripudaman Singh?
(3) Whether the judgment of the Allahabad High Court constitutes
res judicata?
Before we proceed to answer these questions we will briefly set out B
the historical background.
The State or Nabha was formed in 1963 by Hamir Singh as the Ruler.
Maharaja Hira Singh was a directs descendant of the former Ruler, Raja
Bhae,rwan Singh. When he died issueless in 1871, there were no natural
heirs. Being a descendant, Hira Singh came tp be selected as the Ruler.
He wielded sovereign powers over this territory. On his death in 1911 his
son Ripudaman singh came to power. The admitted facts are:
Maharaja Ripudaman Singh ascended the Gaddi of Nabha in 1911
and came to rule the State. He was an absolute monarch enjoying the same
status, powers and position as any other Hindu Ruler.
In 1920, Maharaja Ripudaman Singh acquired the Delhi property
and in 1921 he acquired the Himachal Pradesh property. Maharaja
Ripudaman Singh acquired a number of other properties (before and after
these two), but it is not necessary to go into those details, at this stage.
In 1923, on account of his acfoities, the. British government as the
paramount power, removed Maharaj.a Ripudaman Singh. He was externed
and made to go into exile from the State and took up residence in
Dehradun which was part of British India. A monetary allowance was fixed
c
D.
E
for him but that also was only partly given. The Administration of the F
Nabha State was taken over and carried on by the .. British. Four years after
being removed, in 1927, he changed his name from 'Ripudaman Singh' to
"S. Gurcharan Singh". Although removed by the British in 1923, Maharaj a
Ripudaman Singh was formally disposed only on 2.2.1928. The British, as
the Paramount Power, then installed Pratap Singh (his son) as the Ruler G
of Nabha. The State of Nabha, and all its properties came to vest in him
(Maharaja Pratap Singh). Having been deposed and ceasing to be a Ruler
and being a commoner, subject to law, former Maharaja Ripudaman Singh
settled down in the South Indian hill.station ofKodaikanal.
Fourteen years later, on 14.12.1942, S. Gurcharan (formerly H
622
SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.
A Maharaja Ripudaman Singh) died leaving behind his widow, three sons and
two daughter. The Nabha State, he had been divested of 14 years earlier,
and whatever little he had left with him, formed subject-matter of his
Estate.
B
On 20.8.1948, Nabha State integrated (merged) with seven other
princely States to form PEPSU. Maharaj a Pr a tap Singh ceased to be a
sovereign ruler as of this date. A list of the properties separated from the
State and retained hy him, in terms of the Covenant, was prepared.
In the pre-independence era the Rulers were the princes. Although
C were "subject to British paramountcy yet were absolute. monarchs or
sovereigns within their own territories. Their word was the law. This aspect
of the matter has been dealt within Revathinnal Ba/agopala Vanna (supra);
in paragraphs 51 to 61, wherein there is a copious reference to case law.
Being an absolute monarch or sovereign, the Ruler was the owner of
D all the property in the State. In Vishnu Pratap Singh v. State of M.P., [1990]
Supp. SCC 43, at page 46 it was held:
E
F
G
H
"Despite the distinction drawn in Article XI, there was in reality
no distinction between State property and the property privately
owned by a Ruler, since the Ruler was the owner of all the
property in the State. For the purposes of arrangement of finance,
however, such a distinction was practically being observed by all
Rulers. The apparent effect of the covenant was that all the
property in the State ve.sted in the United States of Vidhya Pradesh
except private property which has to remain with the Rulers. As
is evident, the Ruler was required under Article XI to furnish to
the Raj Pramukh before May 1, 1948 an inventory of all immovable
properties, securities and cash balances held by him as such private
property. Conceivably, on a dispute arising as to whether any item
of property was or was not the private property of the Ruler and
hence State property, it was required to be referred to a Judicial
Officer to be nominated by the Government of India and the
decision of that officer was to be final and binding on all parties
concerned. Despite the stern language of Article XI, requiring a
, Ruler to furnish the list of his private properties by May 1, 1948,
the covenant did not contain any clause or article providing penal
consequences which would or were likely to follow in the event of
MAHARAJ A PRA TAP SINGH v. MAHARANI SAROJINI DEVI [MOHAN, J.]
623
a Ruler not furnishing the list of private properties before that A
date. Nothing is available in the covenant and none was pointed
out to us that if a Ruler failed to furnish an inventory of his private
properties before May 1, 1948, he was debarred from furnishing it
at a later stage and that failure on his part had the effect of
divesting him of little to his private properties."
'\gain in paragraph 13 at pages 51-52 it was stated thus:
B
"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 C
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. Furlher, it \Vas in exercise of his sovereign as a]so individual
D
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 Ministry of State, 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 Jetter or the lists appended therewith, suggestive of the fact
that he had reconverted the donated property to be a state properly. 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
E
F
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 G
father-in-law. Fourthly, the Rulers had no sovereign power towards
administering his State which had become part of the integrated
United State in terms of Article VJ of the Covenant, and during
the integration he could not exercise such sovereign power, so as
to take away the property of a private person and treat it as State H
A
B
c
D
E
F
G
H
624
SUPREME COURT REPORTS [1993] SUPP.1 S.C.R.
property because the property in dispute having once vested in the
defendant-appellants could not be divested in the manner suggested.