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Gujarat High Court
Judgename :A.N.Divecha
Shantadevi P.Gaekwad - Appellant
Versus
Sangramsinh P.Gaekwad - Respondent
APPEAL FROM ORDER 464 of 1992
Decided On : 05/04/1995
The Ruler was declared to be the absolute owner of the non-State private properties. Such non-State private properties might include the palace, the crown, the sceptre, the royal jewellery and the like, both movable and immovable properties. Such properties would not certainly include purely personal properties which a Ruler might have acquired in his individual capacity and not by virtue of conferment of absolute onwership under any covenant or treaty. For example, a Ruler might have written a book and that might have fetched a handsome royalty. That amount of royalty would purely be a personal property and it would not be a part of any non-State private properties.
[Para 6]
(b) Covenant - Paper Book Vol. IV Page 62 - Certificate of 3.2.1954 and of 1.1.1952 F recognised as successor to Ruler of Baroda - Held, he was recognised as absolute owner to non-State private properties in his hands .
By the order of 12th April 1951 at page 171 in Volume IV of the Paper Book, Maharaja Fatesinhrao Gaekwad was recognised as the successor to the Ruler of Baroda. By the Certificate of 3rd February 1954 and by that of 1st January 1952 at pages 181 and 153 respectively in Volume IV of the Paper Book, the absolute ownership of the non-State private properties in the hands of Maharaja Fatesinhrao Gaekwad has unequivocally been recognised. At this stage a reference may also be made to one letter of 20th December 1964 written on behalf of the Government of India addressed to Maharaja Fatesinhrao Gaekwad. Its copy is at page, 70 in Volume IV of the Paper Book. Its tenor leaves no room for doubt that the last Ruler was recognised to be the absolute owner of the non-State private properties in his hands.
[Para 10]
(c) Hindu Law - Succession to properties - Non-State private properties in hands of last Ruler - Held, properties could not partake character of coparcenary property (ii) He is absolute owner of these properties and (iii) Right of maintenance enjoyed by members of Royal family was bounty and not enforceable right.
The non-State private properties in the hands of the last Ruler could not be said to partake the character of any co-parcenery property or the ancestral property enjoying co- parcenary character. Such property in the hands of the Ruler was of his absolute ownership with no one having any right or interests whatsoever. The right of maintenance or residence enjoyed by members of the Royal Family was not in any way an enforceable right. It was in the nature of a bounty from the sovereign. If such Ruler would refuse to grant maintenance of residence to a member or members of the Royal family, such a member or members of the Royal Family had no remedy available for against enforcement of the so-called right of maintenance or residence.
[Para 13]
(d) Constitution of India - 26th Amendment - Art. 363 and Hindu Succession Act, 1956 - Sec. 5 - Non State Private properties - Derecognition of Ruler - Held, it would not divest him of his absolute right of ownership of non-State properties.
The character of absolute ownership of the non-State private properties in the hands of the Ruler would not come to an end on his death even if he dies as an ordinary citizen. Derecognition of such Ruler cannot have the effect of divestiture of all the absolute ownership of the non-State private properties. The 26th Amendment certainly derecognised Maharaja Fatesinhrao Gaekwad as the Ruler of Baroda. That however would not divest him to his absolute ownership over the non-State private properties. He continud to remain the absolute owner thereof till the breathed his last.
[Para 14]
(e) Constitution of India - Art. 363A and Hindu Succession Act, 1956 - Sec. 5 - Non-State private properties - Conquest to share was his own acquisition and not ancestral or coparcenary - Held, on death of Ruler character of non State private properties would remain absolute & sole.
The conquest of Baroda going to the share of the first Ruler was his own acquisition. It would not therefore have the character of any ancestral or co-parcenary property in his hands if its original character was not of ancestral or co-parcenery property and was of self-acquired property, it would remain so even after the death of the last Ruler. The non-State private properties in the hands of the last Ruler after his death would remain his absolute and sole properties and not ancestral or co-parcenary properties.
[Para 15]
(f) Constituion of India - 26th Amendment - Art. 363A and Hindu Succession Act, 1956 - Sec. 5 - Application of - Covenant did not survive with derecognition of Ruler - Held, hurdle of applicability of Act was removed by 26th Amendment of Constitution of India.
In fact, that covenant did not survive with derecognition of Maharaja Pratapsinhrao Gaekwad in 1951. However, in spirit, it survived in view of the Certificates of 3rd February 1954 and 1st March 1964 referred to hereinabove. That hurdle in applicability of the Act of 1956 was removed by the 26th Amendment.
[Para 19]
(g) Hindu Succession Act, 1956 - Sec. 5 - Succession to open from date of death of person - Ruler died on 1.9.1988 - Held, no covenant was in existence and there was no hurdle against applicability of Act of 1956.
It is a settled principle of law that succession would open from the date of the death of the concerned person. The last Ruler admittedly breathed his last on 1st September 1988. At that time, there was in existence no covenant and as such no hurdle against applicability of the Act of 1956 as envisaged by Section 5(ii) thereof.
[Para 19]
(h) Hindu Succession Act, 1956 - Non-State properties - Succession to - Mother is heir in Class I - Brothers are heirs in Class II - Heirs in class I exclude heirs in class II - Held, mother is class I heir would inherit non-State Private properties in hands of deceased last Ruler.
The mother would be an heir in Class-I in the Schedule appended thereto. It is not in dispute that defendant No. 1 is the mother of the deceased last Ruler and the plaintiff and defendant No. 2 are his brothers. Brothers of the deceased, are included in heirs falling in Class-II in the Schedule thereof. It has been provided in Section 9 thereof that an heir or heirs in Class-I would take to the exclusion of an heir or heirs in Class- II. In that view of the matter, I am prima facie of the view that defendant No. 1 as the sole Class-I heir would inherit the non- State private properties in the hands of the deceased last Ruler upon his death.
[Para 20]
(i) Special Enactment (The Hindu Nimbandh) - Succession to Non-State private properties - Deceased left behind neither widow nor child - Only surviving heir of class I was his mother - Held, mother would succeed to non-State Private properties of deceased last Ruler.
The deceased left behind him no widow or child of his. The only surviving heir to inherit his property under the Special Enactment would be his mother, that is, defendant No. 1. In that view of the matter also, I am prima facie of the opinion that, in absence of applicability of the Act of 1956, defendant No. 1 would succeed to the non-State private properties of the deceased last Ruler under the Special Enactment.
[Para 21]
(j) Constitution of India - 26th Amendment - Art. 363 and Hindu Succession Act, 1956 - Sec. 5 and Special Enactment (the Hindu Nimbandh) - Ruler became ordinary citizen after 26th Amendment of Constitution and subject to Municipal Laws including Special Enactment - Held, Special Enactment would apply in absence of Hindu Succession Act of 1956.
The last ruler no longer remained the Ruler as such after the 26th Amendment. He became an ordinary citizen and as subject to Municipal Laws including the Special Enactment. As pointed out hereinabove, the Special Enactment would be applicable only if it is assumed that the Act of 1956 is not applicable.
[Para 22]
(k) Special Enactment (the Hindu Nimbandh) - Special Enactment framed by benevolent Ruler in 1937 - Held, it militates against concept that Ruler is above Municipal laws.
It transpires from the text of the Special Enactment that it was framed some time in 1937. It transpires from the historical account of Maharaja Sayajirao that he was a benevolent Ruler; he was a reformist. The Special Enactment was made during his regime. as a benevolent Ruler and reformist, he would not like himself to be excluded from its applicability. That would militate against the concept that the Ruler is always above this Municipal Laws.
[Para 23]
(l) Civil Procedure Code - Order 39 Rules 1 & 2 - Temporary injunction - Non-State private properties in hands of last Ruler - On his death properties devolve on his mother - Held, plaintiff has failed to establish prima facie case in his favour.
The non-State private properties in the hands of the last deceased Ruler (Maharaja Fatesinhrao Gaekwad) would devolve upon his mother, that is, defendant No. 1. In that view of the matter, I am prima facie of the opinion that the plaintiff has no share whatsoever therein. The plaintiff can thus be said to have failed to establish his prima facie case. The plaintiff has no share whatsoever in the non-State private properties in the hands of the last ruler.
[Paras 24 & 25]
(m) Civil Procedure Code - Order 39 Rules 1 & 2 - Temporary injunction - Trial Judge elaborately dealt with this aspect of case - This court concurs with reasoning in support of prima facie conclusion - Held, plaintiff has no prima facie case to claim interim relief.
The plaintiff has no prima facie case for the purpose of claiming any interim relief. It may be sufficient to note that the learned trial Judge has elaborately dealt with this aspect of the case and has prima facie found in favour of the plaintiff to the effect that he cannot and need not be estopped from contending what he has pleaded as his case in his pleadings. I agree with that prima facie conclusion reached by the trial Judge and also concur in his reasoning in support of his such prima facie conclusion.
[Para 29]
(n) Civil Procedure Code - Order 39 Rules 1 & 2 - Temporary injunction - Trial Judge erroneously found some prima facie case in favour of plaintiff - Held, his impugned order cannot be sustained.
The learned trial Judge was in error in finding some prima facie case in favour of the plaintiff. His impugned order below the application at Exhibit-5 in Special Civil Suit No. 725 of 1991 cannot be sustained in law.
[Para 31]
(o) Civil Procedure Code - Sec. 115, Order 26 Rule 9 and Order 39 Rules 1 & 2 - Appointment of Commissioner dependent on establish- ment of prima facie case - No prima facie case in favour of plaintiff - Held, appointment of Commissioner for purpose of inventary would be futile & meaningless exercise.
Appointment of a Commissioner for the purpose would certainly depend upon the establishment of a prima facie case in favour of the plaintiff. In view of my aforesaid discussion, the plaintiff is not found to have any prima facie case in his favour. In that view of the matter, appointment of a Commissioner for the purpose of inventory would be a futile and meaningless exercise.
[Para 32]
( 1 ) A battle royal, in the true sense of the word, if without bloodshed, has vehemently been fought in this Court. Weapons of warfare have been books, documents and oral arguments. The battleline was drawn between one son of the Royal Family of Gaekwad on the one side and his mother and his elder brother on the other. The earlier venue was the court of the Civil Judge (S. D.) at vadodara. The cause of the fight has been partition of the properties left behind by the former Ruler of Baroda by the name of Maharaja Fatesinjirao Gaekwad.
( 2 ) THE Appeal from Order has arisen from the order passed by the learned Trial judge on 7th August 1992 below the application at Exhibit-5 in Special Civil suit No. 725 of 1991. The revisional application is directed against the order passed by the same learned Trial Judge on the same day below the application at exhibit-6 in the very Special Suit. By his order below the application at Exhibit-5, the learned Trial Judge has granted a sort of injunction directing the appellants in this appeal to maintain status quo till the suit in question is heard and finally disposed of with respect to the properties, both movable and immovable, shown in the schedule in the light of paragraph 21 of the plaint. Thereunder the appellants herein were further directed to maintain separate accounts for the properties involved in the litigation, and also of all the income and incidental expenses from the date of the suit till its final disposal. The remaining part of the order is not very material for the purpose of the appeal. So far as the order below the application at Exhibit-6 is concerned, the application of the revisional petitioner for inventory by appointment of a commissioner under Order 20 (sic. 26) rule 9 read with Order 39, Rule 6 of the civil Procedure Code, 1908 (the Code for brief) has come to be rejected by the aforesaid order passed on 7th August 1992. The order below the application at exhibit-5 has aggrieved the original defendants and they have therefore preferred this appeal under Order 43, rule 1 of the Act against the said order. So far as the order below the application at Exhibit-6 is concerned, the original plaintiff is aggrieved thereby and he has therefore invoked the revisional jurisdiction of this Court under Section 115 of the Code. Since common questions of fact and law arc found arising in both these matters, I have thought it fit to dispose of both these matters by this common judgment of mine.
( 3 ) -IT may be mentioned that on behalf of the original plaintiff certain Paper books have been prepared and handed over to this Court. These Paper Books are in six volumes. Each volume is a separate entity except Volume No. 1 which is divided in two parts as Volume No. 1a and Volume No IB.
( 4 ) THE facts giving rise to these two proceedings may be summarised thus: the parties belong to the Royal Family of gaekwad in Baroda (now Vadodara ). Late Maharaja Fatesinhrao Gaekwad was the last recognised Ruler in the dynasty of gaekwads. He breathed his last on 1st september 1988. He died intestate. He was not survived by his widow or any child of his. As the last recognised Ruler, he was possessed of certain non-State private properties. He also owned certain personal properties of his own. Those personal properties of ownership of the late last Ruler are not the subject-matter of this litigation. The subject-matter of this litigation, even at the cost of repetition, may be reiterated to be the non-State private properties of his in his capacity as the last recognised . Ruler of baroda. On his having left for his heavenly abode intestate and without leaving behind him his widow or any progeny of his own, the respondent to the appeal has put forward his claim to the subject-matter of this appeal in equal share with his elder brother who is the second appellant in the appeal. It would be quite proper if the parties to these proceedings are referred to as they were arraigned b
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