# TRIJUGI NARAIN (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS v. SANKOO (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS

- **Citation:** [2019] 16 S.C.R. 1049
- **Court:** Supreme Court of India
- **Decided:** 2019-12-10
- **Case number:** Civil Appeal Nos. 5740-41 of 2015
- **Bench:** Indu Malhotra, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/trijugi-narain-dead-through-legal-representatives-and-others-v-sankoo-dead-33899
- **Pages:** 37

## Headnote

Hindu Law - Property - Merger agreement signed by
sovereign Ruler with the Dominion of India - Consequences with
regard to the nature of the property - Impartible estate or
coparcenary property - The then Maharaja of the State of Maihar
had perpetual lease rights of the property in question, leasehold
Nazul land - 'BNS', the ruler who succeeded to the gaddi of the
said State bequeathed the palace of Maihar and privy purse to
his elder son of his first wife and the property in question to his
second wife for her son - Aforesaid elder son sold the property in
question to the appellant - Suits were filed for permanent injunction
claiming right in the property by adverse possession and also for
declaration & injunction against the appellant - Dismissed -
Impugned judgment reversed the findings of the courts below and
held that the property was part of the impartible estate governed
by the rule of primogeniture- Held: An estate even if inherited and
ancestral, partition of which is prohibited by custom and succession
whereto is generally by the rule of primogeniture is referred to as
an 'impartible estate' - As per the custom relating to impartible
estates and the rule of primogeniture, the Raja or Ruler of a
princely state would not hold the estate as the karta or coparcener,
but as the absolute owner and the estate would be impartible -
On the death of the Ruler, the succession to the rulership, and the
impartible estate, was not under the Mitakshara law of
survivorship but by the rule of primogeniture - In the present case,
inheritance of the property post the death of the then Maharaja
of the State of Maihar by the new Ruler including 'BNS' by
application of the rule of primogeniture indicates that it was treated
as a State or sovereign property- Property was a part of the
impartible property i.e., though ancestral was not a part of the
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[2019] 16 S.C.R.
coparcenary property, but was a part of the estate of the sovereign
Ruler, 'BNS' - Final findings of the High Court, affirmed- Hindu
Succession Act, 1956- ss. 4, 5(ii), 6, 8, 9, 14 & 30- Constitution
of India - Arts.291, 362, 363(2), 366(22) - Constitution (26th
Amendment) Act, 1971 - Evidence Act,1872 - s.48 - Doctrine of
'cessante ratione legis, cessat ipsa lex' - Indian Succession Act,
1925 - Hindu Succession (Amendment) Act, 2005.
Hindu Law - Mitakshara Hindu Law - Difference between
the Joint Hindu family and Coparcenary - Discussed.
Hindu Law - Property - Impartible estate - Succession to -
Rule of primogeniture - Held: Though the right to survivorship is
not inconsistent with the custom of impartible estate, albeit it is
different from the ordinary rule of succession under the
Mitakshara Hindu law where all sons of the father are entitled to
equal share in his estate, for the law of succession when the rule
of primogeniture applies, is that the first-born son succeeds to the
entire estate to the exclusion of the other sons.
Hindu Law - Property - Impartible estate and the rule of
primogeniture - Origin of - Discussed.
Hindu Law - Succession to impartible estate - Rights of
coparceners, if any - Held: An impartible estate is clothed with
the incidents of self-acquired and separate property - Such estate
even if inherited and ancestral, is not held by the coparcenary as
a part of the coparcenary property, as the coparceners or members
of the joint Hindu family do not have the right to partition or right
to restrain alienation - Thus, any property belonging to the Ruler
as a sovereign, which would devolve on succession by survivorship
by application of the rule of the primogeniture, would not bear
an incidence of a coparcenary property.
Hindu Succession Act, 1956 - ss. 4, 5(ii) - Continuation of
the custom of impartibility and the rule of primogeniture post the
covenants and merger - Held: s.5(ii) is an exception to s.4 and
protects application of terms of any covenant or agreement entered
into by the

## Text

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1049
TRIJUGI NARAIN (DEAD) THROUGH LEGAL
REPRESENTATIVES AND OTHERS
v.
SANKOO (DEAD) THROUGH LEGAL
REPRESENTATIVES AND OTHERS
(Civil Appeal Nos. 5740-41 of 2015)
DECEMBER 10, 2019
[INDU MALHOTRA AND SANJIV KHANNA, JJ.]
Hindu Law - Property - Merger agreement signed by
sovereign Ruler with the Dominion of India - Consequences with
regard to the nature of the property - Impartible estate or
coparcenary property - The then Maharaja of the State of Maihar
had perpetual lease rights of the property in question, leasehold
Nazul land - 'BNS', the ruler who succeeded to the gaddi of the
said State bequeathed the palace of Maihar and privy purse to
his elder son of his first wife and the property in question to his
second wife for her son - Aforesaid elder son sold the property in
question to the appellant - Suits were filed for permanent injunction
claiming right in the property by adverse possession and also for
declaration & injunction against the appellant - Dismissed -
Impugned judgment reversed the findings of the courts below and
held that the property was part of the impartible estate governed
by the rule of primogeniture- Held: An estate even if inherited and
ancestral, partition of which is prohibited by custom and succession
whereto is generally by the rule of primogeniture is referred to as
an 'impartible estate' - As per the custom relating to impartible
estates and the rule of primogeniture, the Raja or Ruler of a
princely state would not hold the estate as the karta or coparcener,
but as the absolute owner and the estate would be impartible -
On the death of the Ruler, the succession to the rulership, and the
impartible estate, was not under the Mitakshara law of
survivorship but by the rule of primogeniture - In the present case,
inheritance of the property post the death of the then Maharaja
of the State of Maihar by the new Ruler including 'BNS' by
application of the rule of primogeniture indicates that it was treated
as a State or sovereign property- Property was a part of the
impartible property i.e., though ancestral was not a part of the
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SUPREME COURT REPORTS
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coparcenary property, but was a part of the estate of the sovereign
Ruler, 'BNS' - Final findings of the High Court, affirmed- Hindu
Succession Act, 1956- ss. 4, 5(ii), 6, 8, 9, 14 & 30- Constitution
of India - Arts.291, 362, 363(2), 366(22) - Constitution (26th
Amendment) Act, 1971 - Evidence Act,1872 - s.48 - Doctrine of
'cessante ratione legis, cessat ipsa lex' - Indian Succession Act,
1925 - Hindu Succession (Amendment) Act, 2005.
Hindu Law - Mitakshara Hindu Law - Difference between
the Joint Hindu family and Coparcenary - Discussed.
Hindu Law - Property - Impartible estate - Succession to -
Rule of primogeniture - Held: Though the right to survivorship is
not inconsistent with the custom of impartible estate, albeit it is
different from the ordinary rule of succession under the
Mitakshara Hindu law where all sons of the father are entitled to
equal share in his estate, for the law of succession when the rule
of primogeniture applies, is that the first-born son succeeds to the
entire estate to the exclusion of the other sons.
Hindu Law - Property - Impartible estate and the rule of
primogeniture - Origin of - Discussed.
Hindu Law - Succession to impartible estate - Rights of
coparceners, if any - Held: An impartible estate is clothed with
the incidents of self-acquired and separate property - Such estate
even if inherited and ancestral, is not held by the coparcenary as
a part of the coparcenary property, as the coparceners or members
of the joint Hindu family do not have the right to partition or right
to restrain alienation - Thus, any property belonging to the Ruler
as a sovereign, which would devolve on succession by survivorship
by application of the rule of the primogeniture, would not bear
an incidence of a coparcenary property.
Hindu Succession Act, 1956 - ss. 4, 5(ii) - Continuation of
the custom of impartibility and the rule of primogeniture post the
covenants and merger - Held: s.5(ii) is an exception to s.4 and
protects application of terms of any covenant or agreement entered
into by the Ruler of any Indian State with the Government of India
or the terms of any enactment passed before commencement of the
Succession Act as per which the estate would descend to a single
heir - Further, ratio of the Constitution Bench in Vir Rajendra
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Singh is a binding precedent for it recognizes the personal law of
succession of the Rulers and therefore, the rule/custom of
primogeniture applicable to impartible estates belonging to
erstwhile Rulers of the princely states - This custom/rule was not
abrogated with the loss of sovereignty that the Rulers had forgone
with the signing of the merger agreement - Law of the land is
pervious to the rule of primogeniture - Constitution of India -
Arts.291, 366(22).
Constitution of India - Arts. 362, 291 - Lease rights of the
property in question transferred to the then Maharaja of the State
of Maihar - 'BNS', the ruler who succeeded to the gaddi of the
State of Maihar bequeathed the palace of Maihar and privy purse
in 1966 to his elder son of his first wife and rest of the properties
including the property in question to his second wife for her son
- Elder son sold the property in question to the appellant in 1968
- Impugned judgment inter alia held that the property was part of
the impartible estate governed by the rule of primogeniture -
Appellants contended that the property being leasehold Nazul plot
owned by the superior lessor, i.e. State of U.P., could not be treated
as a sovereign property in the hands of 'BNS' but, should be treated
as coparcenary property belonging to the joint Hindu family -
Held: Rejected - Succession on death of 'BNS' had opened on
13.10.68, which is before Art.362 relating to the rights and
privileges of the Indian Rulers was repealed - 'BNS' took over as
a Ruler of the State of Maihar in the pre-independence era when
the Rulers, though subject to British supremacy, were treated as
absolute sovereign Rulers within their own territories - There was
no distinction between public and private property of the Rulers
since the distinction would be counter to the basic attribute of
sovereignty.
Dismissing the appeals, the Court
HELD: 1.1 Under the Mitakshara Hindu Law, any property
inherited by a male Hindu from his father, father's father or
father's father's father is ancestral property. The male
descendant who inherits the property in the above manner did
not inherit the property absolutely as a separate property, but
as coparcenary property. Coparcenary consists of only those
persons who acquire by birth an interest in the coparcenary
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO
(DEAD) THR. LEGAL REP.
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property. Succession in coparcenary property is by survivorship.
No coparcener can dispose of his undivided coparcenary interest
by way of gift except with the consent of the other coparceners.
There are restrictions on alienation of the coparcenary property,
which would be legally valid only when made by the whole body
of coparceners where they are adults, by manager/Karta, or
father subject to limits/conditions, and by a sole surviving
coparcener in some circumstances (Mulla Hindu Law 22nd
Edition, 2016 at page 397, § 253 - 'Who may alienate coparcenary
property'). Outside the limits of coparcenary, there is a fringe
of persons, both male and female, who constitute the undivided
or joint family which consists of lineal descendants from a former
ancestor and includes their wives and unmarried daughters.
Joint Hindu family is, thus, a larger body consisting of group of
persons who are united by the tie of sapindaship arising by birth,
marriage or adoption. An individual who is a member of the joint
Hindu family can hold separate or individual property and in
addition, if he is a coparcener, have an interest in the
coparcenary property of the joint Hindu family. However, with
the enforcement of the Succession Act with effect from 17th June
1956, any property inherited by an heir vide intestate succession
in the event of death occurring after 17th June 1956 is absolute
or individual property and not ancestral property. [Paras 8-10]
[1062-A-E]
Surjit Lal Chhabda v. Commissioner of Income Tax,
Bombay (1976) 3 SCC 142 : [1976] 2 SCR 164 -
relied on.
Mulla Hindu Law 22nd Edition, 2016 at page 397, 253-
'Who may alienate coparcenary property' - referred
to.
1.2 An estate even if inherited and ancestral, partition of
which is prohibited by custom and succession whereto is
generally by the rule of primogeniture is referred to as an
'impartible estate'. An impartible estate is essentially a creature
of custom, though could also owe its origin to the term of a grant,
a statute or a family settlement. By virtue of the rule of
primogeniture, the eldest or the first son succeeds to the
property of the last holder to the exclusion of his younger
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brothers. Succession can also be under the rule of lineal male
primogeniture which means that the descendant would be a
continual descendant of the eldest male member of the eldest
branch. [Para 11] [1062-G; 1063-A-B]
Thakore Shri Vinayasinhji (Dead) By LRs. v. Kumar
Shri Natwarsinhji and Others (1988) Supp. SCC
133 : [1988] SCR 1110 - relied on.
Shiba Prasad Singh v. Rani Prayag Kumari Debi and
Others AIR 1932 PC 216 - referred to.
1.3 An impartible estate is clothed with the incidents of
self-acquired and separate property. Impartible estate even if
inherited and ancestral, is not held by the coparcenary as a part
of the coparcenary property, as the coparceners or members of
the joint Hindu family do not have the right to partition or right
to restrain alienation. Though the right to survivorship is not
inconsistent with the custom of impartible estate, albeit it is
different from the ordinary rule of succession under the
Mitakshara Hindu law where all sons of the father are entitled
to equal share in his estate, for the law of succession when the
rule of primogeniture applies, is that the first-born son succeeds
to the entire estate to the exclusion of the other sons. Any
property belonging to the Ruler as a sovereign, which would
devolve on succession by survivorship by application of the rule
of the primogeniture, would not bear an incidence of a
coparcenary property. The property belonged to one person, that
is, the sovereign Ruler as the very concept of sovereignty
implies absolute authority, power and ownership that cannot be
subjected to legal action of partition or injunction by another
person. Consequently, estates/properties of the sovereign Ruler
were impartible even though the property was ancestral. The
male members who had the right of survivorship, could not claim
the right to partition or the right to restrain alienation by the
sovereign Ruler as they had no enforceable right that could be
legally remedied. In short, the right or interest of sons or other
members of the coparcenary was inconsistent with sovereignty
as a sovereign Ruler could not be subjected to the municipal
law and the municipal courts. Thus, as per the custom relating
to impartible estates and the rule of primogeniture, the Raja or
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO
(DEAD) THR. LEGAL REP.
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Ruler of a princely state would not hold the estate as the karta
or coparcener, but as the absolute owner and the estate would
be impartible. The son(s) would not acquire any interest in the
impartible estate by birth nor could they seek partition or
restrain alienation. On the death of the Ruler, the succession
to the rulership, as also the impartible estate, was not under the
Mitakshara law of survivorship but governed by the rule of
primogeniture. There was, however, moral liability for providing
maintenance to others, be it the younger brothers or family
members, which later on, by way of custom, virtually became an
obligation. [Paras 13, 16] [1064-C-D; 1065-G; 1066-A-C-F-H]
Madhav Rao Jivaji Rao Scindia v. Union of India and
Another (1971) 1 SCC 85 : [1971] 3 SCR 9 ; Pratap
Singh v. Sarojini Devi and Others (1994) Supp 1 SCC
734 : [1993] 1 Suppl. SCR 607 - relied on.
Baboo Gunesh Dutt Singh v. Maharaja Moheshur
Singh (1854-7) 6 MIA 164 : 1 Sar PCJ 521 - referred
to.
Lieutenant Colonel James Tod, 'Annals and Antiquities
of Rajasthan', Pg. 307 - referred to.
1.3 Section 5(ii), in its present form, was recommended by
the Joint Committee in pursuance of its opinion, which means
that the Rulers had impartible estates and succession to these
was regulated by special covenants or agreements. Thus, after
discussion, the (iv) exception in the Bill was deleted and was
not enacted as law. The effect thereof was that the custom of
primogeniture and impartible estate in the case of zamindars or
those holding jagirs would not be applicable post enforcement
of the Succession Act with effect from 17th June 1956. Preamble
of the Succession Act states that it is an Act to amend and codify
the law relating to intestate succession amongst Hindus and as
originally enacted did not profess to amend and codify the law
relating to the nature of all the properties held by Hindus, with
the exception of Section 14 of the Succession Act. Section 4 of
the Succession Act provides that the text, rule, interpretation,
custom or usage of Hindu law will cease to have effect with
respect to any matter for which provision is made in the Act and
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further any other law in force, which is inconsistent with the
provisions of the Act, will cease to apply. Section 6 of the
Succession Act deals with devolution of interest of a Hindu male
(and daughter of a coparcener after amendment vide the Hindu
Succession (Amendment) Act 2005) having interest in a
Mitakshara coparcenary as distinct from a joint Hindu family.
Sections 8 and 9 of the Succession Act relating to the general
rules of succession in case of males and females, respectively,
do not apply to a living person but apply on the succession
opening on the death. Similarly, Section 30 of the Succession Act
which deals with testamentary succession and empowers a Hindu
to dispose of any property by will in accordance with the
provisions of the Indian Succession Act, 1925, does not ipso facto
apply to a living person and applies in the event of the holder's
death. Section 5(ii) is an exception to Section 4 and protects
application of terms of any covenant or agreement entered into
by the Ruler of any Indian State with the Government of India
or the terms of any enactment passed before commencement of
the Succession Act as per which the estate would descend to a
single heir. The provisions of the Succession Act, with the
possible exception of Section 14 and some amendments vide the
Hindu Succession (Amendment) Act 2005, do not apply unless
the succession opens and, therefore, no legal rights of a living
person would get affected. The ratio of the Constitution Bench
in Vir Rajendra Singh is a binding precedent for it recognizes
the personal law of succession of the Rulers and therefore, the
rule/custom of primogeniture applicable to impartible estates
belonging to erstwhile Rulers of the princely states. This
custom/rule was not abrogated with the loss of sovereignty that
the Rulers had forgone with the signing of the merger
agreement. Relying on the Constitution, and sub-section (ii) to
Section 5 of the Succession Act, this Court has, time and again,
held that the law of the land is pervious to the rule of
primogeniture. [Paras 33, 35, 38 and 39] [1077-E-F; 1079-H;
1080-A-E; 1082-G-H; 1083-C]
Kunwar Shri Vir Rajendra Singh v. The Union of India
and Others (1969) 3 SCC 150 : [1970] 2 SCR 631 -
followed.
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO
(DEAD) THR. LEGAL REP.
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Talat Fatima Hasan Through Her Constituted Attorney
Sh. Syed Mehdi Husain v. Nawab Syed Murtaza Ali
Khan (D) By LRs. And Others 2019 (10) SCALE 212
- referred to.
1.6 It may be pertinent to state here that the succession
on death of 'BNS' had opened on 13th October 1968, which is
before Article 362 relating to the rights and privileges of the
Indian Rulers was repealed by the Constitution (26th
Amendment) Act, 1971. Article 362, before it was repealed,
stated that in exercise of the power of Parliament or of the
Legislature of a State to make laws or in the exercise of the
executive power of the Union or a State, due regard shall be had
to the guarantee or the assurance given under any such covenant
or agreement referred to in Article 291 with respect to the
personal rights, privileges or dignities of the Ruler of an Indian
State. 'BNS' had taken over as a Ruler of the State of Maihar in
the pre-independence era when the Rulers, though subject to
British supremacy, were treated as absolute sovereign Rulers
within their own territories. There was no distinction between
public and private property of the Rulers since the distinction
would be counter to the basic attribute of sovereignty. Further,
leasehold properties situated outside the princely states have
been held to be State or sovereign property. Therefore, the
contention of the appellants that the property being leasehold
Nazul land situated outside the princely state was personal
property must be rejected in the absence of any other evidence
or material to rebut the presumption that the property was a part
of the impartible estate belonging to the sovereign Ruler. On
the other hand, inheritance of the property post the death of 'RS'
by the new Ruler including 'BNS' by application of the rule of
primogeniture to the exclusion of others son(s) would indicate
that it was treated as a State or sovereign property. [Paras 4042] [1083-F-G; 1084-B-G; 1085-A]
Draupadi Devi and Others v. Union of India and
Others, (2004) 11 SCC 425 : [2004] 4 Suppl. SCR
223 - relied on.
1.7 The property was a part of the impartible property i.e.,
the property though ancestral was not a part of the coparcenary
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property, but was a part of the estate of the sovereign Ruler,
'BNS'. Further, he could transfer the property inter-vivos or
make a bequest by way of a will. The contention that the
property was a separate or personal property and, therefore, not
a part of the impartible property has not been established and
has not been proved by the appellants by leading evidence and
material to dispel the presumption. The final findings of the High
Court are affirmed. There would be no order as to costs. [Paras
43-44] [1085-B-D]
Revathinnal Balagopala Varma v. Shri Padmanabha
Dasa Bala Rama Varma (since deceased) and Others
(1993) Supp 1 SCC 233 : [1991] 3 Suppl. SCR 30 -
relied on.
Venkata Surya Mahipati Rama Krishna Rao Bahadur
v. Court of Wards and Others (1899) LR 26 Ind App
83 ; Sri Rajah Velugoti Kumara Krishna Yachendra
Varu and Others v. Sri Rajah Velugoti Sarvagna
Kumara Krishna Yachendra Varu and Others (1969)
3 SCC 281; Bhaiya Ramanuj Pratap Deo v. Lalu
Maheshanuj Pratap Deo and Others (1981) 4 SCC
613 : [1982] SCR 417 ; D.S. Meramwala Bhayawala
v. Bai Shri Amarba Jethsurbhai (1968) 9 GLR 609 ;
Mirza Raja Pushpavathi Vijayaram Gajapathi Raj
Manne Sultan Bahadur etc. v. Sri Pushavathi
Visweswar Gajapathiraj Rajkumar of Vizianagaram
and Others AIR 1964 SC 118 : [1964] SCR 403 ; N.
Padmamma and Others v. S. Ramakrishna Reddy and
Others (2008) 15 SCC 517 : [2008] 9 SCR 535 ; N.
Padmamma and Others v. S. Ramakrishna Reddy and
Others (2015) 1 SCC 417 : [2014] 10 SCR 641 ; Tikka
Shatrujit Singh & Others v. Brig Sukhjit Singh &
Another ILR 2011 (1) Del 704 - referred to.
Advocate General of Bombay v. Amerchund 12 ER 340,
345 : (1830) 1 Knapp 316, 329-30 - referred to.
Case Law Reference
[1976] 2 SCR 164
relied on
Para 8
AIR (1932) PC 216
referred to
Para 11
[1988] SCR 1110
relied on
Para 12
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO
(DEAD) THR. LEGAL REP.
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SUPREME COURT REPORTS
[2019] 16 S.C.R.
[1971] 3 SCR 9
relied on
Para 14
1 Sar PCJ 521
referred to
Para 14
[1993] 1 Suppl. SCR 607
relied on
Para 15
(1899) LR 26 Ind App 83
referred to
Para 17
(1969) 3 SCC 281
referred to
Para 17
[1982] SCR 417
referred to
Para 17
(1830) 1 Knapp 316,329-30
referred to
Para 18
(1968) 9 GLR 609
referred to
Para 19
[1991] 3 Suppl. SCR 30
relied on
Para 20
[1964] SCR 403
referred to
Para 31
[2008] 9 SCR 535
referred to
Para 33
[2014] 10 SCR 641
referred to
Para 33
ILR (2011) 1 Del 704
referred to
Para 34
[1970] 2 SCR 631
followed
Para 38
(2019) 10 SCALE 212
referred to
Para 39
[2004] 4 Suppl. SCR 223
relied on
Para 42
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 57405741 of 2015.
From the Judgment and Order dated 12.09.2008 of the High
Court of Judicature at Allahabad in Second Appeal Nos. 1930 and 2017
of 1983
S.R. Singh, Sr. Adv., Krishna Kumar Yadav, Ankur Yadav,
Ms. Sunita Pandit, Abhisth Kumar, Advs. for the Appellants.
Dinesh Dwivedi, Sr. Adv., Ms. Preetika Dwivedi, Abhishek
Chaudhary, Krishnam Mishra, Yasharth Kant, Nishant Singh, Advs. for
the Respondents.
The Judgment of the Court was delivered by
SANJIV KHANNA, J.
1. These civil appeals arise out of common judgment and decree
dated 12th September 2008 passed by the High Court of Judicature at
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Allahabad in Second Appeal No. 1930 of 1983 {Chandra Nath Kala
(D) through LRs. v. Trijugi Narain (D) through LRs. and Others}
and Second Appeal No. 2017 of 1983 {Sankoo and Another v. Trijugi
Narain (D) through LRs and Others}.
2. The issue raised in the present appeals relates to the nature
of the property, that is, whether the perpetual leasehold rights in plot
No. 16 (Old Plot No. 9), Chaukhandi Kydganj, Allahabad - Nazul Plot
('the property' for short) was coparcenary joint Hindu family property
or being a part of impartible estate of the State of Maihar, was clothed
with the incidence of self-acquired and separate property.
3. In order to decide the controversy, we would record the facts
in brief.
(a) One Bachchu Lonia had acquired the property by means
of perpetual lease deed dated 12th September 1873
executed by the Government. After the death of
Bachchu Lonia, his son Ram Bharose by means of a
registered sale deed dated 12th August 1896 had
transferred the perpetual lease rights to Raghubir Singh,
the then Maharaja of the State of Maihar.
(b) Subsequently, Brij Nath Singh had succeeded to the
throne/gaddi of the State of Maihar. Brij Nath Singh
vide registered will dated 11th February 1966 had
bequeathed the palace of Maihar and privy purse to
Govind Singh, elder son of his first wife Surendra Kumari
and rest of the properties including the property to his
second wife Rani Tej Kumari for her son after making
provisions for her maintenance during her lifetime. Brij
Nath Singh had died on 13th October 1968.
(c) Notwithstanding this will, Govind Singh, elder son of Brij
Nath Singh from his first wife, as peshwa and karta of
the joint Hindu family, had sold the property vide
registered sale deed dated 18th November 1968 to Trijugi
Narain Dubey and Surendra Nath Prayagwal.
(d) On 20th November 1968, Chandra Nath Kala and
Sankoo had instituted Original Suit No. 194 of 1968 for
permanent injunction against Trijugi Narain and Surendra
Nath claiming right in the property by adverse possession
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO
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for last thirty years. Later on, they had filed an
application for amendment of the plaint as Vimal Kumar
Singh, power of attorney holder of Rani Tej Kumari, had
executed sale deed dated 6th June 1969 of the property
in favour of Chandra Nath Kala, which application for
amendment claiming title based on the sale deed was
allowed by the trial court. However, this order allowing
the amendment was set aside by the High Court vide
order dated 10th December 1971.
(e) Chandra Nath Kala had then on 7th March 1972
instituted Original Suit No. 64 of 1972 for declaration
and injunction against Trijugi Narain and Surendra Nath,
impleading Sankoo as the third defendant predicating his
right on the sale deed dated 6th June 1969 executed in
his favour by Rani Tej Kumari. Sankoo admitted the
claim of Chandra Nath Kala, while Trijugi Narain and
Surendra Nath had filed written statement, inter alia,
stating that Brij Nath Singh had no right to execute the
will in favour of Rani Tej Kumari inasmuch as the
property was coparcenary property of the joint Hindu
family. Further, Govind Singh being the karta of the
family, had validly executed the sale deed dated 18th
November 1968 in favour of Trijugi Narain and Surendra
Nath.
4. The trial court dismissed the two suits by separate judgments,
both dated 25th March 1983, deciding several issues reference to which
is not required in view of the limited challenge raised by the appellants,
albeit it was held that Brij Nath Singh could not have by a will
bequeathed the property that belonged to the joint Hindu family and,
therefore, the sale deed dated 6th June 1969 executed by Rani Tej
Kumari was void as she had no title. Further, the transfer by Govind
Singh as the karta of the joint Hindu family in favour of Trijugi Narain
and Surendra Nath was for benefit of the estate and absolutely legal.
Suit No. 194 of 1968 was dismissed on the ground that Chandra Nath
Kala and Sankoo had failed to prove acquisition of any right by adverse
possession.
5. Civil Appeal No. 476 of 1983 filed against the judgment and
decree in Suit No. 194 of 1968 was dismissed by the Additional District
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Judge, Allahabad by judgment dated 25th August 1983. By a separate
judgment of the same date, Civil Appeal No. 517 of 1983 preferred
against the judgment and decree in Suit No. 64 of 1972 was dismissed,
inter alia, recording that Maihar State had ceased to exist in the year
1948 and, therefore, the rule of primogeniture governing impartible
estates had ceased to apply. Consequently, Govind Singh's legal right
to the property inherited from his father could not have been taken
away by Brij Nath Singh by executing a will giving only the palace and
privy purse to Govind Singh and rest of the properties to Rani Tej
Kumari.
6. The High Court, by the impugned common judgment dated 12th
September 2008, in the two connected appeals, has reversed the findings
of the trial court and the appellate court, inter alia, holding that the
property was a part of the impartible estate governed by the rule of
primogeniture. Accordingly, no member of the joint Hindu family
including Govind Singh had a right in the property by birth. Brij Nath
Singh was fully entitled to bequeath the property by will, which he had
done vide will dated 11th February 1966 in favour of Rani Tej Kumari.
7. We would like to divide the question raised, though
interconnected, into two parts. First, we are required to examine the
customary law relating to impartibility of an estate and succession under
the rule of primogeniture, and whether it was applicable to the property.
The second aspect relates to the legal effect of the lapse of the
sovereign paramountcy with the signing of the covenant and merger
agreement by Brij Nath Singh with the Dominion of India and the
enactment of the Hindu Succession Act, 1956 ('Succession Act' for
short). In other words, whether the impartible properties of the former
Ruler post the merger agreement or the enactment of the Succession
Act had ceased to continue as impartible estate and were converted
into coparcenary property of the joint Hindu family. While deciding the
question, we would also examine the contention of the appellants that
the perpetual leasehold rights being Nazul land were held as personal
property of the Ruler and were not part of the sovereign or state
properties of Raghubir Singh and Brij Nath Singh.
8. In order to decide the question, we must first notice the
difference between the joint Hindu family and coparcenary.
Coparcenary, as observed in Surjit Lal Chhabda v. Commissioner of
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO
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Income Tax, Bombay1, is a narrower body than the joint Hindu family.
Under the Mitakshara Hindu Law, any property inherited by a male
Hindu from his father, father's father or father's father's father is
ancestral property. The male descendant who inherits the property in
the above manner did not inherit the property absolutely as a separate
property, but as coparcenary property. Coparcenary consists of only
those persons who acquire by birth an interest in the coparcenary
property. Succession in coparcenary property is by survivorship. No
coparcener can dispose of his undivided coparcenary interest by way
of gift except with the consent of the other coparceners. There are
restrictions on alienation of the coparcenary property, which would be
legally valid only when made by the whole body of coparceners where
they are adults, by manager/Karta, or father subject to limits/conditions,
and by a sole surviving coparcener in some circumstances (see Mulla
Hindu Law 22nd Edition, 2016 at page 397, § 253 - 'Who may alienate
coparcenary property').
9. Outside the limits of coparcenary, there is a fringe of persons,
both male and female, who constitute the undivided or joint family which
consists of lineal descendants from a former ancestor and includes their
wives and unmarried daughters. Joint Hindu family is, thus, a larger
body consisting of group of persons who are united by the tie of
sapindaship arising by birth, marriage or adoption. An individual who
is a member of the joint Hindu family can hold separate or individual
property and in addition, if he is a coparcener, have an interest in the
coparcenary property of the joint Hindu family.
10. However, with the enforcement of the Succession Act with
effect from 17th June 1956, any property inherited by an heir vide
intestate succession in the event of death occurring after 17th June 1956
is absolute or individual property and not ancestral property. In the
present case, we are not concerned with the concept of deemed partition
of existing coparcenary property on death of a coparcener, execution
of a will by coparcener of his undivided interest vide Section 30 of the
Succession Act or the amendments made in the Succession Act vide
Act No. 39 of 2005 applicable with effect from 9th September 2005.
11. An estate even if inherited and ancestral, partition of which
is prohibited by custom and succession whereto is generally by the rule
1 (1976) 3 SCC 142
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of primogeniture is referred to as an 'impartible estate'. An impartible
estate is essentially a creature of custom, though could also owe its
origin to the term of a grant, a statute or a family settlement. By virtue
of the rule of primogeniture, the eldest or the first son succeeds to the
property of the last holder to the exclusion of his younger brothers.
Succession can also be under the rule of lineal male primogeniture
which means that the descendant would be a continual descendant of
the eldest male member of the eldest branch. The distinction between
the impartible estate, to which the rule of primogeniture applies, and
coparcenary property has been explained in Shiba Prasad Singh v.
Rani Prayag Kumari Debi and Others2 in the following words:
"Impartibility is essentially a creature of custom. In the case of
ordinary joint family property, the members of the family have:
(1) the right of partition; (2) the right to restrain alienations by
the head of the family except for necessity; (3) the right of
maintenance; and (4) the right of survivorship. The first of these
rights cannot exist in the case of an impartible estate, though
ancestral, from the very nature of the estate. The second is
incompatible with the custom of impartibility as laid down in
Sartaj Kuari's case and Rama Krishnan vs. Venkata Kumara,
and so also the third as held in Gangadhara vs. Rajah of
Pittapur. To this extent the general law of the Mitakshara has
been superseded by custom, and the impartible estate, though
ancestral, is clothed with the incidents of self-acquired and
separate property. But the right of survivorship is not inconsistent
with the custom of impartibility. This right therefore still remains,
and this is what was held in Baijnath's case. To this extent the
estate still retains its character of joint family property, and its
devolution is governed by the general Mitakshara law applicable
to such property. Though the other rights which a coparcener
acquires by birth in joint family property no longer exist, the
birthright of the senior member to take by survivorship still
remains. Nor is this right a mere spes successionis similar to
that of a reversioner succeeding on the death of a Hindu widow
to her husband's estate."
12. The aforesaid passage in Shiba Prasad Singh (supra) has
been quoted with approval in a number of judgments of this Court,
2 AIR 1932 PC 216
TRIJUGI NARAIN (DEAD) THR. LEGAL REP. v. SANKOO
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including Thakore Shri Vinayasinhji (Dead) By LRs. v. Kumar Shri
Natwarsinhji and Others3, wherein it has been observed as under:
"The impartible estate, though ancestral, is clothed with the
incidents of self-acquired and separate property, except as
regards the right of survivorship which is not inconsistent with
the custom of impartibility..."
13. It is, therefore, well established that an impartible estate is
clothed with the incidents of self-acquired and separate property.
Impartible estate even if inherited and ancestral, is not held by the
coparcenary as a part of the coparcenary property, as the coparceners
or members of the joint Hindu family do not have the right to partition
or right to restrain alienation. Though the right to survivorship is not
inconsistent with the custom of impartible estate, albeit it is different
from the ordinary rule of succession under the Mitakshara Hindu law
where all sons of the father are entitled to equal share in his estate,
for the law of succession when the rule of primogeniture applies, is
that the first-born son succeeds to the entire estate to the exclusion of
the other sons.
14. As observed above, impartibility of an estate and
primogeniture can have its origin in four forms, including custom. There
are judicial precedents acknowledging and accepting the custom of
impartible estate and that the rule of primogeniture was a general rule
of succession in all the princely states. We must take judicial notice of
this custom as applicable to princely states vide Section 48 of the
Evidence Act,1872. Lieutenant Colonel James Tod, in his work titled
'Annals and Antiquities of Rajasthan'4, at page 307 states:
"...The law of primogeniture prevails in all Rajpoot sovereignties;
the rare instance in which it has been set aside, are only
exceptions to the rule."
G.K. Mitter, J. in his judgment in Madhav Rao Jivaji Rao
Scindia v. Union of India and Another5 had observed:
"It would appear that invariably the rule of lineal male
primogeniture coupled with the custom of adopting a son prevailed
3 (1988) Supp. SCC 133
4 Oxford University Press, 1920. Reprinted in 1978 by M.N. Publishers, New Delhi
5 (1971) 1 SCC 85
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in the case of Hindu Rulers who composed of the bulk of the
body."
In Baboo Gunesh Dutt Singh v. Maharaja Moheshur Singh6,
it was stated as follows:
"We apprehend that the principle upon which we are about to
proceed in this case admits of no doubt or question whatever.
By the general law prevailing in this District, and indeed generally
under the Hindoo law, estates are divisible amongst the sons,
when there are more than one son; they do not descend to the
eldest son, but are divisible amongst all. With respect to a Raj
as a Principality, the general rule is otherwise, and must be so.
It is a Sovereignty, a Principality, a subordinate Sovereignty and
Principality no doubt, but still a limited Sovereignty and
Principality, which, in its very nature excludes the idea of division
in the sense in which that term is used in the present case."
15. In Pratap Singh v. Sarojini Devi and Others7 reference
was made to the decision in Baboo Ganesh Dutt Singh (supra) and
Mitter, J.'s opinion in Madhav Rao Jivaji Rao Scindia (supra) to hold
that:
"65. Though impartibility and primogeniture, in relation to zamindari
estates or other impartible estates are to be established by
custom, in the case of a sovereign Ruler, they are presumed to
exist."
This Court in Pratap Singh (supra) has reiterated the above
principles and also observed that impartible estate and the application
of the rule of primogeniture in the case of the sovereign Ruler must be
presumed to exist, whereas in the case of zamindari estate or another
impartible estate, the rule of primogeniture must be established by way
of custom.
16. Any property belonging to the Ruler as a sovereign, which
would devolve on succession by survivorship by application of the rule
of the primogeniture, would not bear an incidence of a coparcenary
property. The property belonged to one person, that is, the sovereign
Ruler as the very concept of sovereignty implies absolute authority,
6 (1854-7) 6 MIA 164: 1 Sar PCJ 521
7 (1994) Supp 1 SCC 734
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power and ownership that cannot be subjected to legal action of partition
or injunction by another person. Consequently, estates/properties of the
sovereign Ruler were impartible even though the property was ancestral.
The male members who had the right of survivorship, could not claim
the right to partition or the right to restrain alienation by the sovereign
Ruler as they had no enforceable right that could be legally remedied.
In short, the right or interest of sons or other members of the
coparcenary was inconsistent with sovereignty as a sovereign Ruler
could not be subjected to the municipal law and the municipal courts.
In an unreported decision in Civil Appeal No. 226 of 1965 titled Mahant
Hardial Singh v. Ajmer Singh decided on 20th November 1968 with
regard to the powers of the Maharaja of Patiala, this Court had observed:
"We think that this appeal must fail on the short ground that the
sale in favour of Seth Banarsi Das cannot be impugned in view
of the orders made by His Highness the Maharaja of Patiala. It
must be remembered that at the time the transaction took place,
Patiala was a native State and the Maharaja enjoyed uncontrolled
sovereign powers. At that time he was the supreme legislature,
the supreme judiciary and the supreme head of the executive.
There was no constitutional limitation on his authority to act in
any of the capacities. His orders were expressions of the
sovereign will and they were binding in the same way as any
other law, nay, they would override all other laws which were in
conflict with them. So long as his order held the field that alone
would govern or regulate the rights of the parties concerned
though it could have been annulled or modified by him at any
time he willed."
Thus, as per the custom relating to impartible estates and the
rule of primogeniture, the Raja or Ruler of a princely state would not
hold the estate as the karta or coparcener, but as the absolute owner
and the estate would be impartible. The son(s) would not acquire any
interest in the impartible estate by birth nor could they seek partition or
restrain alienation.