ORDER
1. Lt. Col. Bhawani Singh, defendant No. 1 by this application wants the plaint to be rejected, primarily on the ground
that it does not disclose any cause of action. This plea is based on the fact that Maharaja Man Singh was the absolute owner of these properties as ruler prior to the merger of the Jaipur State with Union of India and even after the merger the Maharaj Man Singh remained its absolute owner. By merger of Jaipur State with the Government of India, these properties of the Maharaj did not become H.U.F. properties. Reference was made to the recent decision of the Supreme Court in His Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojini Devi, in Civil Appeal No. 5857/ 83 decided on 17th August, 1993. The defendant No. 1, being the eldest son, after the death of Maharaj Man Singh ascended to the throne (Gaddi) as per the custom and the law prevalent and also as per the Covenant signed by the Ruler with the Government of India. The private properties of late Maharaj Man Singh after his death, became the absolute properties of defendant No. 1. Neither the plaintiff nor defendants 2 to 7 have any right on the same. Hence the plaintiff has no cause to claim any partition or for accounts regarding the impartible Estate.
2. To appreciate the objection raised by defendant No. 1, we have to understand the facts pleaded in the plaint. To determine this objection, we can only look to the averments made in the plaint itself. We cannot look into any defense pleaded or set up. The cause of action is nothing but bundle of facts giving rise to the claims made in the plaint by the plaintiff. These bundle of facts as a whole constitute the cause of action. Therefore, to determine whether the bundle of facts stated in this plaint show any cause of action in favour of the plaintiff, we have to see the facts averred in the plaint itself. Maharaj Jagat Singh, the plaintiff herein, has claimed, himself to be one of the coparceners of the Hindu Undivided Family (in short HUF). He has based his claim, inter alia, on the grounds that Maharaj Sawai Man Singh was the absolute owner of the properties while he was ruling the State of Jaipur. After the independence of the country, the paramountcy of British Crown lapsed. Thereupon, Government of
India entered into agreements with the rulers of princely States. The Jaipur State acceded to the Government of India on instrument of accession being executed by Maharaj Sawai Man Singh. State of Jaipur acceded by virtue of the instrument dated 30th March, 1949. The said agreement provided that the maharaja would be entitled to the full ownership, use and enjoyment of all the private properties held by him. The said Covenant further guaranteed his personal rights, privileges and dignities and succession to the Gaddi as well as those rights of the Ruler. On the merger of the Jaipur State, the properties held by Maharaja of Jaipur State were divided into two categories, namely, (1) State properties; and (2) private properties. The rights and privileges of the Maharaja and his family were guaranteed by the Government of India. The succession to the throne was to be in accordance with the law and customs of the Ruler. The immediate members of the family were to include the Maharaja, his wives, sons, daughter and Grand children. They were to be entitled to the privileges which they were enjoying at the time of the accession.
3. The private properties of Maharaj Man Singh were incorporated in the said Covenant. Those were declared his private properties and were preserved for future successors. That all the private properties formed the corpus of H.U.F. which the Maharaja held for and on behalf of the members of the Joint Hindu Family as per the Hindu Law. The said H.U.F. consisted of Karta, i.e. Maharaja, his Maharani Sahibas, four sons, one daughter and two grand children. Each member of the said Hindu Undivided Family including the plaintiff was in constructive and physical possession of the properties along with the deceased Maharaj Sawai Man Singh. The said properties also consisted of certain income earning properties. Defendant No. 1 being the eldest son, after the death of Maharai Man Singh on 24th June, 1970, ascended to the throne (Gaddi) of Jaipur State. He was recognised as a ruler by the Government of India. On the death of Maharaj Man Singh those private properties reverted back to the members of the Joint
Hindu Family, Defendant No. 1 became Karta of the said H.U.F. Defendant No. 1 has been showing the suit properties as H.U.F. properties in the Estate Duty, the Income-tax and wealth-tax proceeddings. Because of the declarations made by defendant No. 1 that the suit properties were H.U.F., the Taxation Authorities assessed the suit properties as H.U.F. properties. Defendant No. 1 took advantage of H.U.F. status of these properties from the Income-tax, Wealth-tax Authorities as well as from Estate Duty. Defendant No. 1 possessed these properties for and on behalf of all members of H.U.F. Since these properties were treated as H. U. F. by all including the defendant No. 1 and he even declared these properties to be H.U.F., hence the plaintiff came in physical and constructive possession of these properties. Because of the action of defendant No. 1 the plaintiff in fact came in physical possession of “Takhi-I-Shahi”, a suit property at Jaipur. The H.U.F. status of these properties has been declared by defendant No. 1 himself.
4. It is further the case of the plaintiff that defendant No. 1, Lt. Col. Sawai Bhawani Singh, as Karta of the H.U.F. has been mismanaging the properties to the detriment of the plaintiff. As a result, huge financial liabilities have accrued on the suit properties. Defendant No. 1 deliberately avoided the demands of Income-tax and Wealth-tax Authorities vis-a-vis the suit properties. Moreover, defendant No. 1 through his attorney i.e. defendant No. 8 has entered into an agreement to sell H.U.F. properties. He in fact has sold some H.U.F. properties, not for any legal necessity of any of the member of the H.U.F. Entire sale proceeds have been misappropriated by defendant No. 1 to the detriment of the plaintiff and other members of H.U.F. Income from the profit earning properties of the H.U.F. has also been misappropriated by defendant No. 1. He has refused to render the accounts. Moreover, defendant No. 8 wife of defendant No. 1 acting as his attorney has ordered the closure of the lodge known as Sawai Madhopur Lodge (P) Ltd., thereby jeopardising the interests of the company and the members of H.U.F. Because of mis-appropriation and mis-management and maladministration by the
said defendant No. 1, this suit has been filed.
5. Defendant No. 1 has contested the suit on many grounds, but the pleas which are relevant for considering this application are that all the private properties of late Maharaj Sawai Man Singh were his absolute properties and after his death, the defendant No. 1 ascended to the throne as well as to the Corpus of these properties in his individual capacity as a Ruler of the Jaipur State. These private properties of Maharaj Man Singh, did not become H.U.F. properties merely because the Jaipur State merged with the Government of India. Nor could merger of the State of Jaipur change the status of individual properties of late Maharaj Man Singh, into H.U.F. properties. So far as the declaration made to the Income-tax and Wealth-tax Authority is concerned, that was due to the wrong legal advice. The law of primogeniture would apply. The plaintiff cannot claim private properties of Maharaj Man Singh to be H.U.F. properties merely on account of merger of the State because defendant No. 1 after ascending to the throne became absolute owner of these private properties.
6. In order to determine the question raised in this application, we have to keep in mind the provisions of Rule 11 of Order 7 of C.P.C. In this case, counsel for the applicant has placed reliance on Clause (a) of Rule 11 to urge his arguments regarding maintainability of the suit. Rule 11 of Order 7, C.P.C. indicates that the plaint shall be rejected in four clauses mentioned in Clauses (a) to (d). Under Rule 11, a duty has been cast on the Court to see whether the plaint contains the necessary allegation which must be proved before a decree could be given if these are not the necessary allegations, to reject the plaint. It is well settled principle of law that in asking the Court to decide the issue like this, the defendant must be taken to admit for the sake of arguments that the allegation of the plaintiff in his plaint are true mood et forma in manner and form.
7. There cannot be any quarrel with the proposition propounded by Mr. Shanti Bhushan, learned counsel for defendant No. 1 that right to partition cannot be acceded in
the case of impartible State. Defendant No. 1 being the eldest son would have preferential right to succeed to the Gaddi as well as to the private properties of late Maharaja Sawai Man Singh by the principle of primogeniture as held by Supreme Court, (sic) in an Impartible Estate though other rights which a coparcener acquires in the joint family do not exist, right by birth of the senior member to take by survivorship still remains. That for individual properties to be placed in the common notch potch clear intention on the part of the coparcener to waive his separate rights must be there. Such an intention will not be inferred merely from acts which may have been done for kindness or on wrong advise. Mere declaration of individual properties as HUF properties by defendant No. 1 was not sufficient but intention to waive this claim with full knowledge of his right to it as his separate property must be proved.
8. Plaintiff admitted in para No 6 of the plaint, that Maharaja Sawai Man Singh prior to the accession of the Jaipur State was the absolute owner of suit properties being the monarch. In para No. 7 of the plaint, it has been pleaded that succession to the throne (Gaddi) was to be in consonance with the law and customs. The rights and privileges of Maharaja and the family were guaranteed by the Government of India. In the Covenant, the private properties of the Maharaja were incorporated. In para No. 8 of the plaint it has been mentioned that the private properties of Maharaja after the merger of the Jaipur State with the Government of India formed the Corpus of Hindu Undivided Family which the Maharaja held for and on behalf of the members of the said family as per the Hindu Law. Further the Maharaja Man Singh became Karta of these properties because of the merger of Jaipur State with the Govt. of India. His wife, sons, daughter and two grand children formed the Hindu Undivided Family. Each member including the plaintiff came in constructive and physical possession of these properties.
9. From the premises of the allegations contained in the plaint, it is clear that the plaintiff is seeking declaration and rendition
of accounts basing his claim, primarily on the ground that because of the merger of the Jaipur State properties held by the Ruler, Maharaja Sawai Man Singh, became HUF properties by virtue and by the mere act of merger. These properties, therefore, formed corpus of the HUF. On these premises, Mr. Shanti Bhushan contended that the suit is not (sic) of the Supreme Court in Relatoinal Balagopala Varma v. His Highness Sri Padmanabhadasa Varma, JT 1991 (5) SC 301. His Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojini Devi in Civil Appeal No. 5857/83 decided on 17th August 1983. The Supreme Court in these cases dealt with the nature of properties held by the erstwhile rulers and the effect of the merger of these States with the Government of India, on these properties. After considering various provisions and the decisions, it was observed by the Supreme Court that though impartibility and primogeniture in relation to Zamindari States are to be established by custom, but in the case of sovereign Ruler these are presumed to exist. It has further been held that doctrine of the Hindu Law that property inherited by a son from his father would be ancestral property in his hands cannot be made applicable in the cases of Rulers where all the properties held by a monarch or Ruler devolved by the rule of primongeniture. On the devolution of the properties from one monarch to his successor, the successor would take the same as an absolute monarch, and not as a son by way of inheritance. It was further observed that on succession of a sovereign Ruler, the property cannot be claimed to be a joint family property, since the estate in the hand of the Ruler would be a sovereign estate and its chief a sovereign Ruler. In fact the sovereign ruler acquires the property in exercise of his sovereign rights. In the above noted case, the Supreme Court proved the observations of Bhagwati J. (as his Lordship then was) in D.S. Meramwala Phayavala v. Ba Shri Amarba Jethsurbhai, ILR (1968) Guj 966, in para 11, which is reproduced as under :
“If the Khari Bagasara Estate was a sovereign Estate, it is difficult to see how the ordinary incidents of ancestral co-parcenary
property could be applied to that Estate. The
characteristic feature of ancestral co-parce
nary property is that members of the family by
acquire an interest in the property by birth or
adoption and by virtue of such interest they
can claim for right; (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 survivor
ship. It is obvious from the nature of a
sovereign Estate that there can be no interest
by birth or adoption in such Estate and these
rights which are necessary consequence of
community of interest cannot exist. The Chief
of a Sovereign Estate would hold the Estate
by virtue of his sovereign power and not by virtue of municipal law. He would not be
subject to municipal law; he would in fact be
the fountain head of municipal law. The
municipal law cannot determine or control
the scope and extent of his interest in the
Estate or impose any limitation on his powers in relation to the Estate.
Again at para 12 it is stated thus :
As a sovereign ruler he would be the full and complete owner of the Estate entitled to do what he likes with the Estate, during his life-time no one else can claim an interest in the Estate. Such an interest would be inconsistent with his sovereignty. To grant that the sons acquire an interest by birth or adoption in the Estate which is a consequence arising under the municipal law would be to the municipal law.”
(sic) The learned censes appearing for the plaintiff contended that an impartible estate does not mean it is a separate or exclusive property of the holder. Where the property is ancestral and the holder has succeeded to it, it will be part of the joint Estate of the undivided family. The impartible estate though ancestral, from the very nature of the estate, there is no right to partition and there is no right to restrain, alienation except for necessity by the head of the family. Though ancestral, it is clothed with the incidence of self-acquired and separate property. Subject to the avove, the estate retains its character of joint family property and its devolution is governed by the general Mitakshara law applicable to such properties. The late Maharaja Sawai Man Singh after the accession of Jaipur State with
the Union Territory of India became an
ordinary citizen and the laws of the land apply
to him. To my mind, these arguments have no
force, in view of the observations of the
Supreme Court quoted above in the cases of
Maharaja Pratap Singh Civil App. No. 5857
of 1983, D/-17-8-1993 (SC) and Revathinnal
Balagopala Varma JT 1991 (5) SC 301
(supra).
10. Mr. Parsaran then placed reliance on the 26th Amendment of the Constitution of India. Reliance on 26th Amendment of the Constitution of India, to my mind, is misplaced. The 26th Amendment of the Constitution is not retrospective and could not have changed the succession of the property of Maharaja Sawai Man Singh by defendant No. 1 which already took place in 1970. Maharaja Man Singh died in the year 1970 whereas the 26th Amendment came on the Statute Book in the year 1971, Hence the contention of Mr. Parsaran, cannot be supported from the facts of this case that 26th Amendment of the Constitution of India invalidated the question of ownership appended to the status as Ruler or that the Status of the Ruler having ceased after coming into force the 26th Amendment of the Constitution of India. Further contention of Mr. Parsaran, Senior Advocate for the plaintiff that the reason for impartibility is not the custom but the Covenant alleged to be providing for impartibility by accepting the custom. The custom is overridden by Section 4 of the Hindu Succession Act, 1956. The impartibility attributable by virtue of the covenant stands obliterated by the omission of Articles 291 and 362 and the abolition of Rulership and privy purse. This argument, to my mind, is without substance in view of the Supreme Court observation and also on the ground that being the absolute monarch or sovereign so long the rulership remains, the Ruler was to remain the owner of all his private properties. There was no rulership after India became republic on 26th January, 1950, but the estate which was impartible in its nature was to continue to be governed by the Rule of Primogeniture which continued even after 1947-48, since under Article 372 of the Constitution of India, the law of succession relating to primogeniture continue until it was
repealed. This was repealed on coming into force of the Hindu Succession Act, 1956. But the Hindu Succession Act itself under Section 5 made a special provision exempting the application of the Act from “any estate which descends to a single heir by terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India”. The debates in Parliament on the Hindu Succession Bill also show that the intention of the Government was to exempt the application of Hindu Succession Act from the estates of the ancestral rulers of princely States where the property was inherited by the custom of male lineal primogeniture which custom was preserved by the covenants signed with these Rulers. Moreover, all these aspects have been gone into by the Supreme Court in the above quoted cases wherein it has been held that other family members cannot claim any right in the private properties of a sovereign ruler even after the merger. Therefore, it cannot be said that the private properties’ of the erstwhile ruler of Jaipur State became HUF properties by virtue of merger and accession. Therefore, reliance by Mr. Parsaran either on the 26th Amendment or to Section 4 of the Hindu Succession Act has no relevance with the facts of this case.
11. Had the case of the plaintiff rested only on the facts quoted above. I might have accepted the plea of Mr. Shanti Bhushan that the plaint is not maintainable as it does disclose the cause which requires adjudication as these questions and allegations are no longer res Integra. These have already been conclusively settled by the pronouncement of Supreme Court in the cases cited above.
12. But there are certain other facts pleaded in the plaint which if proved would entitle the plaintiff the relief claimed. It has been pleaded that defendant No. 1 made declaration in the Estate Duty, Income-tax and Wealth-tax proceedings that the suit properties were H.U.F. properties and be assessed accordingly. This is so pleaded in para 10 of the plaint. The defendant No. 1 had been showing the suit properties as HUF properties in his returns filed with the Income-tax and Wealth-tax Authorities. On the
declaration of the defendant No. 1, the suit properties were assessed by these authorities as H.U.F. properties. Acting on these admissions and declarations, the plaintiff came in physical possession of “Takht-I-Shahi”, suit property, at Jaipur. It has further been pleaded in para Nos. 15 and 16A of the plaint, that defendant No. 1 now cannot deny the existance of H.U.F. after having taken the advantage of the status of the suit properties as HUF. The contention of Mr. Shanti Bhushan that such declaration by defendant No. I was made before the Tax Authorities under wrong legal advice. To my mind, the defense; at this strange cannot be looked into. As already pointed above, while deciding the application under O. 7, R. 11, C.P.C., the Court is only to look into the averments made in the plaint and the documents annexed therewith. It cannot, for the determination of this application, look into the defense set up by the defendants. The factum whether this declaration was made on a wrong legal advice or not or was made with intention and knowledge or not, are the questions which give cause to the plaintiff to base his claim and these have to be gone into on merits. It is for the defendant No. 1 to explain his admission during the trial. This cannot be explained away at this stage. Moreover, on the application filed for the appointment of a Receiver, matter went up before the Supreme Court and the Supreme Court while disposing of that application made the observations which are reproduced as under, perusal of these observations also show that plaint does disclose cause of action as to whether defendant No. 1 declared the suit properties with his own volition or not?
“One of the controversies in the suit is whether the properties recognised as the private properties of Maharaja Man Singh were his personal properties or properties belonging to the Hindu Undivided Family of Maharaja Man Singh. The main question, however, which arises in the suit is whether respondent No. 1 is entitled to succeed to the properties of Maharaja Man Singh in his individual capacity on the basis of the rule of primogeniture of whether the said properties are the properties of a Hindu Undivided Family of which the appellant and other parties referred to earlier are members. There
is of course no dispute that if the properties are the properties of the undivided Hindu Family, respondent No. 1 is the Karta of the said family, it is significant that although respondent No. 1 has contended that the said properties are his private and personal properties yet from 1971-72 to 1985-86 he disclosed these properties in his returns for Income-tax as well as Wealth-tax as properties belonging to the Hindu Undivided Family of which he is the Karta. He has of course offered an explanation that this was done merely under legal advice to save tax. In these circumstances however there is a distinct possibility of the said properties being held to be properties of the said Hindu Undivided Family and prima facie case has been made out to that effect. If that is the correct position respondent No. 1 will have only 1/6th share in the said properties or at least substantially less than a half share”.
13. The Supreme Court did consider the explanation given by defendant No. 1 that the declaration to the Income-tax and Wealth-tax authorities was done merely on legal advice to save tax. Still the Court observed that there was a distinct possibility of the properties being held to be the properties of H.U.F. and came to the conclusion that a prima facie case has been made out. Therefore, at this stage, it cannot be said that plaint does not disclose cause of action particularly in view of the admission made by the defendant No. 1 and the Tax Authorities having acted on the same. The question of estoppel will also be gone into after recording evidence. Hence this in itself gives a cause to the plaintiff to base his case. The contention of Mr. Shanti Bhushan that it has not been pleaded that the properties were placed in common hotch potch, to my mind, is a part of the evidence, to be proved during trial. Suffice it to say that the plaintiff on these allegations has shown the cause which requires adjudication. Whether the declaration were filed with the intention and knowledge, it require evidence. The very fact that defendant No. 1 alleged that declarations were made under wrong legal advice, to my mind, itself gives cause of action to file this suit to the plaintiff. So far as the observations of the Supreme Court that the “intention on the part of the
co-parcener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done in kindness and affection”, these observations were made after full trial of the case. Similarly, the question that the separate property of a Hindu co-parcener ceases to be his separate property and acquire the characteristic of his joint family or ancestral property not by mere act of physical mixing with the joint family or ancestral property, but by his volition and intention by his waiving or surrendering his special rights in it as separate property, have to be gone into on merits. The relevance of the declaration made by defendant No. 1, these questions require evidence and have to be decided on merits. Therefore, as per Mr. Shanti Bhushan’s own contention, that unless volition or intention of defendant No. 1 is shown or proved, the properties by mere declaration will not become a Joint Hindu Family property, is a cause which requires consideration. Therefore, for the reasons stated above it can be said that the plaint does disclose a cause of action which requires adjudication. The application is accordingly dismissed.
14. Application dismissed.