( 1 ) THESE two matters arise out of an order that came to be passed below Exh. 186 in Special Civil Suit No. 68 of 1980 on 18th January 1996 by the learned Civil judge (SD) Kutch at Bhuj. By the said order the plaint said Special Civil Suit No. 68 of 1980 came to be rejected under the provisions of Order VII, Rule 1 1 of the code of Civil Procedure, 1908.

( 2 ) THE said suit was filed by the appellant of First Appeal No. 835 of 1996. The appellants of the other appeal are defendants of the said suit and they are also joined as respondents in the said appeal filed by the original plaintiff. This being the position, both the appeals are taken up for hearing and disposal together treating First appeal No. 835 of 1996 to be the main matter. As a result, the position of the respective parties in respect of the said litigation will be referred to in the manner that appears in the said main appeal.

( 3 ) THE suit came to be filed on 26-12-1980 when father of the appellant-original plaintiff (hereinafter referred to as "the appellant") was very much alive. No. 2 happens to be the mother of the appellant, nos. 3 and 4 are his brothers, while Nos. 5 and 6 are sons of original defendant No. 4. Sisters also came to be joined along with other related family members required to be joined as party in a suit for partition.

( 4 ) THE partition was sought in respect of what the plaintiff described to be Joint hindu Family Property and therefore, in the prayer clause contained in para 23, various reliefs in relation to both moveable and immoveable properties were prayed for with a further prayer that the appellant be given his 1/3rd share which would be separated by metes and bounds. There were other ancillary reliefs also.

( 5 ) HAD it been a case of any other Joint hindu Family, the matter would have proceeded before the Trial Court in the usual manner and there would have been a judgment and decree either allowing the suit or dismissing the same.

( 6 ) THAT position is to be found in the instant matter also to the extent of bringing the suit before the Trial Court to the stage of recording evidence.

( 7 ) AT that stage, however, application exh. 186 came to be given by the defendants 4 to 6 under Order VII, Rule 11 of the Code of Civil Procedure, 1908 praying for the rejection of the plaint on the ground that the plaint, as filed, is barred by law and does not disclose any cause of action.

( 8 ) THE essential and material difference between an ordinary plaintiff and the appellant as a plaintiff before the Trial Court asking for separation of his share in the joint Hindu Family is only one namely that original defendant No. 1, his father, happened to be the Ruler of the State of Kutch admittedly a sovereign native State when india was a colony of the United Kingdom. It was the said defendant No. 1, since deceased, who ceded the State to the dominion of India by a Covenant dated 4-5- 1948. The said defendant No. 1 was also recognised as a Ruler of the State pursuant to the said Covenant for the purpose of payment of privy purses and other privileges. This continued to be the position till the 26th Amendment to the Constitution of india in the year 1971. As noted above, the suit came to be filed almost 9 years thereafter, i. e. on 26th December 1980.

( 9 ) APPLICATION Exh. 186 came to be filed mainly on the basis that defendant No. 1 being a Sovereign on account of the merger, whatever property he got, he received it as an erstwhile Ruler of the State and therefore, it would be his exclusive property. There is also a hint to the effect that in the sovereign State there was a Rule of primogenitor applicable and effect thereto may have to be given when question of successtion to defendant No. 1 would arise. The legislative event, in the meantime, i. e. between the said date of merger and the date of filing of the suit, if are taken into consideration, the first and foremost is the adoption of the Constitution of India on and from