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 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 (26 th 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 (DEAD) THR. LEGAL REP.
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 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 22 nd 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 17 th 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 (DEAD) THR. LEGAL REP.
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 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 (DEAD) THR. LEGAL REP.
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.
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 13 th October 1968, which is before Article 362 relating to the rights and privileges of the Indian Rulers was repealed by the Constitution (26 th 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 (DEAD) THR. LEGAL REP.
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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.