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1991 Supreme(Del) 192
High Court Of Delhi
MAHARAJ JAGAT SINGH - Appellant
Versus
LT.COL.P.N.CHOPRA - Respondent
First Appeal (OS) 55 of 1990
Decided On : 03/20/1991
J.K.DAS, J.L.Bhasin, K.N.Kataria, NINA GUPTA, P.K.BAKSHI, RAM JETHMALANI, S.C.PAUL, SHANTI BHUSHAN, SUBHASH OBEROI
The rule of primogeniture was abolished by the Hindu Succession Act, 1956, but impartible estates were excluded from the operation of the Act by virtue of section 5(ii).
Headnote:
PARTITION SUIT - APPOINTMENT OF RECEIVER - PRINCIPLES - HINDU SUCCESSION ACT, 1956 - SECTION 5(II) - INTERPRETATION - COVENANT BETWEEN RULER AND GOVERNMENT OF INDIA - PERSONAL RIGHTS - MEANING - SUCCESSION TO PRIVATE PROPERTY - WHETHER INCLUDED - RULE OF PRIMOGENITURE - WHETHER ABOLISHED - IMPARTIBLE ESTATES - WHETHER EXCLUDED FROM OPERATION OF ACT.
Fact of the Case:
The appellant, claiming to be the brother of respondent No. 1, filed a suit for partition of the family properties. He also filed an application for appointment of a receiver, alleging mismanagement, non-payment of tax dues, entering into agreements to sell property and misappropriating funds of income-bearing properties. Respondent No. 1 challenged the locus of the appellant to file the suit and asserted that the appellant was adopted in 1957 and thus all his links with his natural family were severed. He also contended that the property was not joint family property and that he was the sole heir or alternatively the Karta.
Finding of the Court:
The court held that the appellant had not established a prima facie case for the appointment of a receiver. It noted that the properties were vast and that respondent No. 1's share, even as a member of the H. U. F., was substantial and valuable. The court also noted that the properties had been protected by interim orders of the court and that tax returns were being filed in the status of H. U. F. and an annual certified statement of income was being filed. The court further held that the appellant did not have an excellent chance of succeeding in the suit, as there were genuine issues of fact and law to be decided.
Issues: 1. Whether the appellant had locus standi to file the suit for partition. 2. Whether the property was joint family property. 3. Whether respondent No. 1 was the sole heir or alternatively the Karta. 4. Whether the rule of primogeniture was abolished by the Hindu Succession Act, 1956. 5. Whether impartible estates were excluded from the operation of the Act. 6. Whether the appellant had established a prima facie case for the appointment of a receiver.
Ratio Decidendi: 1. The court held that the appellant had locus standi to file the suit for partition, as he was the brother of respondent No. 1 and had not been validly adopted. 2. The court held that there was a genuine issue of fact as to whether the property was joint family property. 3. The court held that there was a genuine issue of fact as to whether respondent No. 1 was the sole heir or alternatively the Karta. 4. The court held that the rule of primogeniture was abolished by the Hindu Succession Act, 1956. 5. The court held that impartible estates were excluded from the operation of the Act by virtue of section 5(ii). 6. The court held that the appellant had not established a prima facie case for the appointment of a receiver, as the properties were vast and respondent No. 1's share was substantial and valuable, the properties had been protected by interim orders of the court, tax returns were being filed in the status of H. U. F. and an annual certified statement of income was being filed, and the appellant did not have an excellent chance of succeeding in the suit.
Final Decision: The appeal was dismissed.
( 1 ) THIS appeal is against the judgment and order dated 21st March, 1990 passed by Mr. Justice Charanjit Talwar dismissing an application under Order XL rule 1 read with section 151 of the Code of Civil Procedure filed on behalf of the appellant-plaintiff for appointment of a receiver.
( 2 ) THE brief facts are that Swai Man Singh, Maharaja of Jaipur, died on 24th June, 1970 and respondent No. 1 succeeded him. But on 6th February, 1949, the late Maharaja had entered into an agreement with the Union of India. The said agreement provided that the Maharaja would be entitled to "the full ownership, use and enjoyment of all the private properties" belonging to him and that "succession according to law and custom, to the gaddi" and to "the personal rights, privileges, dignities and titles of the Ruler" were guaranteed. These commitments and guarantees are contained in Articles 12, 13 and 14 of the Covenant.
( 3 ) THE main controversy pertaining to these articles is with regard to the interpretation of the words "personal rights" in Article 14. It is contended on behalf of respondent No. I that the right to succeed to the private property of the Ruler is covered by this phrase whereas the appellant disputes this contention.
( 4 ) THERE is, however, no dispute that the rule of primogeniture was the custom in the princely State of Jaipur and that the late Maharaja had become the ruler on 7th September, 1922 on this basis. There is also no dispute that respondent No. 1. the eldest son of the late Maharaja ascended to the Gaddi of the Jaipur Sfate and was recognised as a Ruler by the Government of India. It. is also admitted that the late Maharaja never filed any tax returns as a Karta of a Hindu undivided family, but filed returns as a sole owner. However, it appears that respondent No. I, at some stage, filed returns as Karta of a Hindu undivided family and also sought to have assessments of the late Maharaja reopened seeking to show him as Karta. It is now contended that he was misled into filing these returns.
( 5 ) THE Government of India had entered into agreements with the princely states to merge their territories with the union of India by an. instrument of accession. The State of Jaipur along with some other princely states acceded by virtue of an instrument dated 30th March, 1949. On menger of the Stale, the properties of the State Were divided into two categories i. e. State" properties and private properties. In the category of private properties, both movable and immovable, there is a list of properties with full. rights of disposal and another list of family property which the Maharaja is to preserve for future successors.
( 6 ) IT appears that sometime in 1986, the appellant sought partition. Respondent No. I refused partition Claiming primogeniture. Consequently the suit was filed in 1986 along with an application under Order XXXIX rules 1 and 2 and certain interim orders were made. Subsequently, the application for appointment of a receiver was moved making averments of mismanagement, non payment of tax dues, entering into agreements to sell property and misappropriating finds of income bearing properties.
( 7 ) RESPONDENT No. I challenged the locus of the appellant to file the suit and asserted that the appellant, who is his brother, was born in 1949 and was given away in adoption in 1957 to late Col. Bahadur Singh Ji of Isarda, his uncle and thus all his links with his natural family Were severed. It is also averred that the appellant has filed a suit, in which he has himself asserted in the plaint that with effect from the date of adoption i. e. 21st February, 1957, he became the son of Col. Bahadur Singh Ji. Consequently, it was contended on behalf of respondent No. I that a suit filed by the plaintiff was not maintainable.
( 8 ) THE learned Single Judge while dealing with this preliminary objection held that "at present I am advised to hold that as Maharaj Bahdur Singh Ji had no son of his own, pe
