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1997 Supreme(J&K) 72

IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
M. Ramakrishna,R.C. Gandhi, JJ.
State Of J&K - Appellant
Versus
Karan Singh (Dr.) & Anr. - Respondent
LPA (W) No. 39, 60 And 64/1989
Decided On : 30 May, 1997

Advocates Appeared:
Advocate For Appellant: N.A. Kakroo
Advocate For Appellant: S. Shukla
Advocate For Respondent: S.S. Ray
Advocate For Respondent: D.P. Gupta
Advocate For Appellant: Amrish Kapoor
Advocate For Appellant: S.K. Anand
Advocate For Appellant: Rahul Pant
Advocate For Appellant: H. Rehman
Advocate For Appellant: Baldev Singh
Advocate For Appellant: Seema Sheikher
Advocate For Appellant: P.C. Sharma
Advocate For Respondent: B.A. Bedar
Advocate For Respondent: A. Rangananthan
Advocate For Respondent: A. Verma

Headnote:A. L.P.A. Rules- Rule 12

       Whether a new plea can be taken in the appeal for the first time without seeking to amend the writ petition?

       Held - No, It would not be proper for appellate court to allow a new plea to be taken by the petitioner in order to make out a new case, as the respondents have no occasion to controvert the new plea and there can be no finding recorded in the writ court on such issue.

       Para-16

       B. Constitution of India- Article 353.

       Whether. the courts are competent to enquire into any dispute arising out of the merger agreement or instrument of accession executed by ex-ruler of the State with the Govt. of India.

       Held -No.

       Para-42

       C. Evidence Act-Section 115-Principle of Estoppel

       Petitioner, son of ex-ruler filing claims for jewellery and gold ornaments lying in the treasury (Toshakhana) since the abolition of monarch. At the time of execution of instrument of accession on 26.10.1947 when the State of J&K acceeded to the dominion of India, option was given to erstwhile Maharaja to nominate his private properties including securities. The erstwhile Maharaja filed the list of such properties which were admitted to be his private property, however, he omitted the jewellery lying in Toshakhana from said list. Certain items from the treasury thereafter was taken on loan by petitioner form the State Govt. including the Singhasan (Throne) for display. Petitioner took no initiative to claim the jewellary items till 19.83 when he initiated the legal proceedings to claim the properties as private properties being items of heirlooms or Regalia. All along the petitioner and his father, erstwhile Maharaja, admitted the jewellery items to be the property by their conduct.

       Whether the claims of the petitioners are hit by the principles of estoppel. Held: Yes.

       Para-39

       D. Hindu Succession Act-Section 56

       The father of the petitioner erstwhile Maharaja by his last will, left both movable or immovable properties to certain persons and nothing was bequeathed in favour of the petitioners and no reference was made to the jewellary items lying in the treasury. Additionally no claim was made by erstwhile Maharaja In his life time to said jewellary items. Whether the petitioner is entitled to claim said jewellary items under right of inheritance.

       Held: No

       Para-33

Shri M. Ramakrishna. CJ:

1. These three letters Patent Appeals arise out of a common judgment made by the learned Single Judge on June 27, 1989 in writ petition No: 122 of 1984. Since these appeals arise out of the said common judgment, therefore, they are clubbed together and disposed of by this common judgment. Dr.Karan, who was writ petitioner in writ petitioner No: 122 of 1984, feeling aggrieved by the judgment made by the learned Single Judge, has sought for declaration that he (appellant in LPA (W) No:60 of 1989) is full owner of the jewellery and ornaments (articles mentioned in Appendix-A and b of the appeal) and also further direction/order to restore and return all these articles, ornaments and jewellery to him . He has accordingly sought for modification of the judgment made by the learned Single Judge by setting aside the finding and directions of the learned Single Judge, who in his finding has directed that respondent No:2 (in LPA no: 60 of 1989) alone can pass orders to determine the disputes; and such other order and direction and writ that this High Court may deem fit to grant.

2. In LPA(w) No:39 of 1989, presented by the State of Jammu & Kashmir, aggrieved by the judgment made by the learned Single Judge on June 27,1989 in writ petition No: 122 of 1984, the appellant (State) has sought for the following prayer:-

(i) to set aside judgment and order dated June 27, 1989 passed by the learned Single Judge of this High Court in writ petition No:122 of 1984 and dismiss the writ petition as brought by the writ petitioner (respondent No:1 in the appeal) with costs, and

(ii) Any other relief which this honble court may deem just and proper in the circumstances of the case, including awarding of costs against respondent No:1.

3. In L.P.A (w) No:64 of 1989, presented by Union of India, the appellant has sought for the following prayer:-

(i) to set aside the judgment and order dated June 27,1989 passed by the learned single Judge in writ petition No:122 of 1984.

(ii) to dismiss the writ petition of respondent No:1 (writ petitioner) with costs; and

(iii) Any other relief which this high Court may deem just and proper in the circumstance of the case be awarded to the appellant and against respondent No:1(writ petitioner).

4. Facts of the case :

The salient facts of the case, as could be gathered from the pleadings in the writ petition and the grounds taken in the appeals for purposes of appreciating the questions of law to dispose of these three appeals are as follows: -

It is an admitted fact that by virtue of Instrument of Accession dated Oct. 26,1947, the State of Jammu and Kashmir came to be acceded to the dominion of India and by a letter of Secretary, Ministry of Home Affairs, the writ petitioner (Dr. Karan Singh) being the only son of formar Maharaja of State of Jammu & Kashmir (Shri Hari Singh) was recognised as the Ruler under Article 366 of the Constitution of India by the Union of India on July 10,1961. By another letter dated December 24,1952, addressed by the then Minister of States {Home Affairs)New Delhi Shri Hari Singh, the erstwhile Maharaja was entitled to receive privy purse annually in a sum of Rs. Ten Lakhs free from all taxes. On June 9.1949, Shri Vala Bhai Patel , the then Minister of States (Home affairs) addressed a letter to the erstwhile Maharaja Hari Singh asking the Maharaja to send a list of his private property including securities and there after the said property was accepted as private properties of His Highness, the Maharaja of J&K and the same would continue as his (Maharajas) private properties. The Government of India had also agreed occupation of Kashmir House at Bombay by the Maharaja Hari Singh free of rent for his life time. In the letter dated December 24.1952, the Government of India had also agreed to extend exemption from the provisions of the Indian Arms Act to the same extent as at present in the favour of the Maharaja and that Maharajas motor cars had to bear red number plates as at th






































































































































































































































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