REVATHINNAL BALAGOPALA VARMA versus H.H.SRI PADMANABHADASA, BALA RAMA VARMA (SINCE DECEASED) AND ORS.

A. REVATHINNAL BALAGOPALA VARMA v.

H.H.SRI PADMANABHADASA, BALA RAMA VARMA (SINCE DECEASED) AND ORS.

NOVEMBER 28, 1991

[S. RANGANATHAN, M. FATIIIMA BEEVI AND N.D. OJHA, JJ.]

J/indu Law : llindu undivided fami/y-Coparceners-Rights of-Whether available to members of Royal: Family in respect of personal properties of sovereign ruler. · ·

. Burden of proof-Relevancy: Claim that properties belonged to /oint famiiY-:.When evidence has been led, question of onus of proving that' suit properties were imparti/)le or otherwise renWins not-of much. importance: Cow:t has to decide on consideration of evidence and materials. :

·Royal family of Travancore----'-Properties held.by sovereign ruler..:....Suc-cession-Devolution of properties on successive rulerS-:-Joint family nucleus to the.properties not established surrender of sovereigniy and State properties .· to Government of lndi~etention of certain properties by Maharajah as his personal properties--Suitfor partition-Maintainability of' Whether the prop-erties can be said ' to be of the family . to which the sovereign belonged. ' · .

Joint fami/Y"-f'artition-Presumptio~Whethe_r partition is full and complete.

"Sthanam"-lmportant characteristics explained.

Sovereign ruler-:Succession and powers-Explained.

State and public properties and Private properties of sovereign ruler-· Whether are distinct.

Travancore Kshatriya Regulation, 1108: J/indu Succession Act, 1956, section 7:Kerala Joint llindu Family System (Abolition) Act,1975,s.4 - whether applicable to members of Royal Family ofTravancorefor purposes of partition of properties held by Maharajah of Travancore as his personal properties at the time of surrender of his sovereignty and State properties to the Government of India.

-fi:'ai:tice· and Procedure : Plea not raised in trial court-Whether can be entertained at appellate stage. 30 ,_

BALAGOPALA VARMA v. BALARAMA VARMA

Respondent· no~ 1 in Civil Appeal No. 534/83, till the integration of the States of Travancore and Cochin on 1.7.1949, was the SO".ereign ruler of the erstwhile State of Travan~ore and in that capacity he held several items Qf properties which had been inherited by him from his predecessor Maharajahs. He also acquired some properties after he had become the Maharajah. The cost of the properties so acquired had been met from the State coffers, there being no distinction until 1949 between the funds belonging to Ruler in his individual capacity and those beionging to the · Sfate. At the time of surrender of his sovereignty and the State properties to the Government oflndia, in pursuance of the Covenant dat_ed 27.5.1949, he retained certain properties as his personal properties.

The appellant instituted suit for 'partition and rendition of ac-counts alleging that he and respondents no. l to 34 (defendants no. 1to34 in the suit respectively) were members of the Travancore Royal Fainily which was an undivided 'Maruinakkathaya~Tarwad', knoWn as V~likot­taram, governed by Marumakkathayam law as modified by custont and . usage in respect of succession, inheritance etc., and respondent no. 1 as the Karnavan . had been managing the tarwad properties which were Hable to . -.. be partitioned among the appellant and respondents no. 1 to 34 on per capita basis and the appellant was entitled to 1/~th share therein; that the proceeds received by way of alienation of some of th~ pr:operties made by respondent no. 1 be divided amongst the members of the tarwad. He also prayed for decree with regard to his share in the. income of the tarwad properties received by respondent no. 1 as its Karnavan.

Before the institution of the partition suit, respondent no. 1 filed return in respect of the suit properties before the ceiling authorities, and the Kerala Land Board, accepting the_properties to be of respondent no. 1, declared some of them as surplus. The appellant challenged that order in revision before the High Court contending that since the properties were tarwad properties, they were to be treated as belonging to different families which constituted independent units in the tarwad, and could not b~. taken as surplus with respondent no. 1. The revision was dismissed by the _High Court as belated. The appellant thereafter filed an application under section 85(9) of the Kerala Land R~forms Act, 1963 which was dismissed by the Kerala Land Board and the revision thereupon was disposed of by the High Cou.rt reserving Uberty to the appellant to move: -for relief ~oder settion 85(9) of the Act subject to the decision in the appeal arising out of the partition suit which was pen.ding before the High Court.

Respondent no.1 contested the suit stating that though the appellant

[1991) SUPP. 3 S. C.R.

and respondents no. 1 to 34 were. members of family, they were not . m.embers of an undivided Marumakkathayam tarwad nor was he the Karnavan thereof. His case was that defendants no. 3 and 12, who were the two.senior female members in the family and were junior and senior 'Maharanis ofTravancore respectively, along with their descendants formed tarwad named Sreepadom and known as the Royal Family of Travan-. con~; th~t Sreepadom tarwad had its own properties which were divided per .strips on 13.7.1971 in two equal halv~s between the descendants of defendants no. 3 and 12 a'nd thereafter there ceased to be any undivided tarwad; that the properties in suit were held by him as sovereign as his own, an·d 'retained by him absolutely for hiJ_Dself when he surrendered the sovereignty of the State; that he was competent to deal with them in any manner and his action was beyond challenge. It was also contended that the suit was not maintainable inasmuch as no memb_er could ask for compulsory partition of the properties of family governed by Mar-umakkathayam Jaw; and that the Royal Family of Travancore even though governed by M·arumakkathayam Law, was not governed by any ' . . ' statute.

.. Defendant· no. 12 also filed written state~ent claiming her right over certain item of property on the basis of grant from an earlier ruler, and defendants no. 32 _to J4 fil~d yet another written statement silpportin'g the, claim of t~e appeilant except that defendant no. 32 took further _plea that she having marri'ed on 14.5.1952 under the special Marriage A~t, 1872, became divided in status from the rest of the members of the tarwad and at that time there being in all six female members in tbe . tarwad she wa~ entitled to l/6th share in the properties. _

The trial court dismissed the suit holding that neither th.e appellant and respondents no. 1to34 belonged to any undivided 'Marmukkathayam tarwad, rior was respondent'no. 1 the :Karnavan of any such tarwad nor were the properties in suit the tarwad properties. It recorded categorical finding that the plaintiff-appeliant failed to prove the source of acquisition of. the suit properties whereas defendant-respondent no. 1 produced documentary evidence indicating that the suit properties belonged to the · Sirkar ,or State an~ that maintenance of the palace buildings was 1>eing done by· the State with the funds of the State Exchequer. With regard to .,the ·~ecurities and shares in the name ofrespo~dent no. 1 and the items of · j~weilery in his ~ustOcly, the Trial Court held that there was nothing on ret:Ord'to,show that they'had been acquired with tarwad funds or that the tarwad had any interest in 'the same. · · ·

Against the judgment of the trial Court, the appellant filed an appeai whereas defendants no. 12 and 32 to 34 filed two cross petitions, which were dismissed by the High Court. Aggrieved, the appellant filed the appeal (Civil. Appeal No. 534/83) anci defendants no. 32-34 preferred the connected appeal by special leave to th.is Court. Another appeal (C.A. No. 536/83) filed by defendant no.12 abated as she died during the pendency of the appeal and no consequential steps were taken.

It was contended on behalf of the appellant that respondent no. 1 owned the properties in suit not as sole owner but only in his capacity as the holder of an impartible estatet. the Karna van of ail· undivided Mar-umakkathayam tarwad, or Sthanee, and· that in· any one of these situations the properties became partible; and when respondent no. 1 ceased to be the sovereign ruler, the properties, being no longer needed to maintain the status and dignity of the holder on the basis of cessanle ratione legis, cessat ipse lex doctrine, became the properties of the fami"Jy or tarwad . to which the ruler belonged and thus became partible on 17~6;1956 when section 7(1) of the Hindu Succession Act came into force and; af any rate on 1.12.1976 when the Kerala joint Hindu Family System (Abolition) Act,· 1975 came into force and that the Covenant dated 27.5.1949 could not confer any right in favour of respondent no. 1 which he did not otherwise possess nor could it take away the rights of the members of the joint Hindu family by accepting the properties to be of respondent no. 1. · ·

On the question whether the family of the appellant and respondents no. 1 to 34 was an undivided 'Marumakkathayam tarwad' known as Valikott.aram governed, by Marumakkathayam law as modified by custom and usage in respect of succession, inheritance etc. and the properties in suit belOnged to this tarwad and respondent no. 1 had been managing the same as its Karnavan, or, whether these properties were held by respon-dent no. 1 as his personal properties carved out by him as such in his capacity as the sovereign ruler of Travancore and were retained by him as his personal properties even after he surrendered his sovereignty, as indicated in the inventory furnished to and acc~pted by the Government oflndia in pursuance of the Covenant dated 27.5.1949, dismissing the ap- - peals, the Court,

HELD: (by the Court) ; (i) The suit properties were not shown to be properties belonging to an undivided family or marumakkathayam tar- · wad and hence partible. On the other hand, they 'were, and were also treated as, the personal properties of the Ruler. [ 54B; 93FG;94B]

(il) The properties in suit having passed on from one sovereign to the otber ca.me to be ultimately held by respondent no. 1 in that, capacity and ~'re-~partible. lt was not established that, in the properties of the State, ··he-ldJ~y th~ sovereign, an interest was created or came into being in favour ·.of Oie family to which the sovereign belonged, or that the personal pr(;)perties of respondent no. 1 could get transformed into joint Hindu family properties wherein the appellant could acquire an interest. [ 82A,B.; 84F,G]

(iii) Th·e properties in suit were not joint family properties, but had been· earmarked by respondent D.Q. 1 as his personal properties which he was ·oompetent to do as. sovereign atid the Government of India by accepting or approving the list 1JF properties sub-mitted by him as his personal . properties did ·not purport on its own to create any :right in favour of r.espomlent no. i in such pt4)J>~rties.f4:6 A,B; 94E-G)

Per -Ranganazhan, .J:

-t.t The devoJati:On or the suit properties was from one monarch to hi.S[0]silcressor. (who is not son or lineal de~endant) and1he successor wouid be as absolutely -entitled to them as his predecessor and cannot become timited holder;{ 49-FGJ ·

1~2 The doctrine of Hindu Law that property inherited by son from his father would be ance.'itral property in his hands cannot be applicable in the context of the above succession to the rulershfp. [49F]

1.3 Under the general Mitakshara Law applicable to Hindus there is no presumption that the properties acquired by any member of the family, even the Karta, are joint family properties unless there is, in his hands, nucleus of joint family property which could have been utilised for acquiring such properties or the properties are shown to have been ac· quired by him as Karta for and on behalf of the family. [SOB]

Even if there is such presumption in the case of an ordinary tarwad, no such presumption can operate where the Karnavan, being sovereign ruler, acquires properties in exercise of his sovereign rights. Neither the family nor any member of the family could dream ~f putting up claim, so Jong as he is the ruler, that as the properties had be.en acquired by member of the family they belong to the family. It cannot be said that they have such right but it remains dormant so long as the ruler is sovereign and will revive on the·ruler ceasing to be sovereign. The acquisitions by sovereign ruler cannot be claimed to be joint family property.

[ 51B-E]

Shrinivas Krishnarao Kango v. Narayan Devji Kango and Oth~rs, [1955] 1 S.C.R. 1 & Meramwa/a Bhavala v. Ba Shri Amarba Jethsurbh4i, I.L.~. 19.§8-9 Guj. 966, relied on

Achuthan v. Chinnamn, [1961] 1 S.C.R. 454; Tipperah case ,12 MIR '523 , ref erred to.

1.4. All the properties held by monarch or ruler devolve by the rule

of primogeniture, there being no distinction in this regard between his personal properties and those held by him as ruler. But this need not necessarily be lineal primogeniture. It could be general primogeniture, the succe~or to the rulership being determined according to some prevalent custom. The properties will devolve on the successor so decided upon. The fact that the successor is determined on the basis of Marumakkathayam Law no doubt causes the properties to devolve on the next Karnavan who succeeds to the rulership. But this does not necessarily lead to the inference that the properties held by. the Ruler are the properties of Tarwad. The devolution is by succe~ion from ruler to ruler and not one by way of . survivorship under the Marumakkathayam Law due to one Karnavan taking the place of deceased predecessor. This circumstance does not, therefore, establish the appellant's claim. 149 C·E]

1.5 The Travancore Royal Family, being excluded from the purview ,of the Travancore. Kshatriya Regulation, 1108, was not tarwad or tavazhi governed by that Regulation and would not therefore come within the inclusive part of the definition of 'joint family' in the K~rala Joint Hindu Family System (Abolition) Act, 1975. However, the first part of the definition is wide enough to include all Hindu joint families except the Cochin Royal Family. But the Act put an end to all Joint Hindu Families in Kerala with effect from 1.12.1976 and therefore on that date the family came to· an end and the family members became tenants-in-common in respect of the family property. However, the suit properties did not belong to Hindu undivided family or marumakkathayam tarwad. [ S9D-F]Bhaiya Ramanuj Pratap Deo v. Lalu Mahashanuj Pratap Deo and Ors., (1982) 1 SCR 417; Sundari v. Lakshmi, [1980] 1 SCR 404; Pratapsir.ihjiN. Desaiv. Commissioner of Income-tax, [1983] 139 I.T.R. 77; C.I.T. v.Mahara-jah Chintamani Saran Nath Sah Deo, (1986) 157 I.T.R. 358; CJ.T. v. U.C . Mahatab, Maharaja o/Burdwan, (1981) 130 ITR 223 Calcutta.; Rama Verma Bharathana Thampuran v. State of Kera/a and Ors., [1980] 1 SCR 136 and Palace Administration Board v. Rama Verma Bharathan Thampuran & Ors.,

[1983] 3 SCR 187, referred to.

2.1 Construed .in very literal sense, the position of every king or Ruler -Md, indeed, of every Corporation sole or office holder can be

approximated to that of Slhanandar but these two sets of expression are

n9tinterchangeable.[47 EFJ

. 2.2 Merely because the properties held by person devolve by rule of succession related to the position held by him, it does not follow that ·such person is Sthani within the meaning· of section 7(3) of the Hindu

. . Succe8sion Act. {47 FG] ·

2.3 ThreeJmportantincidents characterise Sthanam and its prop~. :erti_e~the powers of a. Sthani to alienate the corpus of the Sthanam · properties or to bind his _successors· by. his debts are limited; when Sthatiam·was created by opulent and influential families the members of . the tarwad agreed to set aside for the Karnavan cer~ain properties in order . that he might keep up his sodalposition arid influence, such properties descended to the next head of the family and the other members of the tarwad had no rights therein except reversionnry rights in case the St-hanain ceased to exist; and in the case of Sthanam; the Sihani ceases to have any interest in the other properties of his tarwaci ·because the tarwad has already allotted properties belonging to it to meet the needs of the Sthani. [47 GB; 48 AC] . .

In the instant case the analogy of Sthani must fail inasmuch as all the three above incidents Were absent..:...the powers of respondent no. l as the sovereign ruler in respect of the properties were unlimited; there was nothing ori record to show that any property of any tarwad to which the Rt!lers belonged had at tlie inception of the lfolership been set apart for the· benefit of the Ruler, or that the Ruler had no interest in the other J>roperties of the tarwad to which he belonged. [47H; 48 A-C] ·

V enkateswara lyan v. Shekhari Verma, [ 1884} ILR3 .Mad 384; Kochunni . v. Kuttanunni, ILR 1948 Mad ~72; Kevalappara K. Kochuni v. State of MadraS, S.C.R. 961; [1960] 3 Inspecting SCR Ass·u. 887, M:K.•Balakrishnan Commissioner, A.G.I.T. . Menon v. v. Ramunni ACED., Panik/car, [1972] 1 [1972] l S.C.R. 935 and Manavikraman Raja v. C.E.D., (1957) 32 I.T.R. (~.D.) 1, referred -to. ·

·Mu/la's Hindu Law. 15th Edn. p. 940, referred to.

3.1 Even assuming that in Marumakkathayam family there is · presumption that the properties acquired by theKarnavan would be joint family properties, that Ruler is in no better position than an ordinary Karnavan and that nucleus of joint famiJy properties was there, the . presumption that the properties in suit were joint family properties stands m<>fa: than r~butted by the circumstances of the case and the conduct of the · partieS whith are clinchingly against the possibility of there being any ·

tarwad properties : The properties in suit were alleged to belong .to : . tarwad known. as Valiakottaram which could not beidentical to Sreepa-dom tarwad; and the properties of Sreepadom tarwad were p~rtitioned by the deed ·dated 13.7.1971. [51 F·H; 52 A]

When there is partition of~ jointfamily three is presumption that . the partition is full and co~plete. There is no room for thinking that any of the joint family properties had been left out o(the..partition.[52A]

3.2:It cannot be s~id .. that atthe ·time or partition tile other rnem bers

or the tarwad were unaware of the existence of the properties in suit, or tbatt due to- some oversight, such extensive properties had been left out from inclusion in the partition. The· non-inclusion of these properties or even a. mention thereof in the partition deed ·is·significant.[si~C;E}

3~3Though tar.wads were impartiMe under customary law,they were.

made.:partible by,a.single·or two"thirds majority of their adult members · ·'by the ,Marumakkathayam Act; .1933 and .. completely partible at the instance of any- in.dividuat·membtr by the Marumakkathayam (Amend· ment) Act;: 1958. [52 FGJ

3A Ev.e.n assuming tbat the Royal family ofTravancore was outside

the scope of these legislations, because of Travancore Kshatriya Regula-tion, the b1dividual members having challenged the alienations by the erstwhile Ruler, took no further steps in the matter nor· did they get incorporated in the deed. of 1971 some reference to the other tarwad properties or at least that only some of the tarwad properties, partition .of .which was acceptable to the first respondent, were being partitioned by that document, in case their claims were serious. [52 GH; 53A]

Before the ceiling authorities while respondent no. l claimed_ all the properties belonging to him· individualty, defendants no. 3 and 13 and some others unsuccessfully claimed share in the tanvad properties controlled by the Maharajah.[53 BJ

If the properties had been ·family properties and had been acknowl-edged by the Ruler to be as such, the-entries in the revenue records would have been in the name of the tarwad or the senior Rani. Although the entries as made cannot be attached conclusive weight, as they only ·represent entries made at the instance of respondent no. 1, yet they lend some support to the claim that the ruler did not recognise the properties as the properties of the family and considered them to be his own.

[53 GH; 54A]

· 4.1 sovereign Ruler has an absolute right to dispose of, at his will,

even properties which may actually belong to the State and he also has right to take it back from the donee at his pleasure. It is of course patent that he could not exercise either of these powers after he ceases to be sovereign ruler.[ 56 GH; 57 A]

Mahant Hardial Singh v. Ajmer Singh & Ors., (C.A. 226/65) decided on 20.11.68 & Vishnu Pratap Singh v. State of M.P. [1990] Supp. S.C.C. 43, relied on.

4.2 It cannot be said that there were any limitations on the sover-

eignty of the Ruler ofTravancore so long as he was the Ruler, nor can one import, in the State of absolute monarchy that prevailed then, the doctrine that the Ruler could not take away the property belonging to any subject without payment of compensation or that he could not be an absolute despot if he chose to and deal with the properties of his citizens as he liked.

[54 H; 55 A]

Visweshwar Rao v. State of M.P., [1952] 3 S.C.R. 1020; Jagannath Behera v. Raja Harihar Singh, [1958] S.C.R. 1067; Sudhansu Shekhar Singh 4 Deo v. State of Orissa, {1961] 1 S.C.R. 779 and Kunwar Shri Rajendra Singh -v. Union, [1970] 2 S.C.R. 631, held inapplicable.

State of Bihar v. Maharajadhiraja Sir Kameshwar Singh, [1952] S.C.R. 889; Virendra Singh v. State of U.P., [1955] 1 SCR 415, referred to.

4.3 If the properties, though family properties, had been treated by the Rulers as their personal properties, the family and its members cannot get over that situation and challenge what was done by the erstwhile Ruler in the exercise of his sovereign power. [56 E]

State of Gujarat v. Vora Fiddali, [1964] 6 S.C.R. 461 Rajkumar Narsingh Pratap Singh Deo v. State of Orissa, [1964] 7 S.C.R. 112, State of M.P. v. Lal Rampa/ Singh, [1966] 2 S.C.R. 53; State of M.P. v. Lal Bhargav-endra Singh, (1966] 2 S.C.R. 56 and Maharaj Dhiraj Himmatsinghji v. State of Rajasthan, [1987] 1 S.C.C. 52, referred on.

Mahant /-lardial Singh v. Ajmer Singh & Ors., (C.A. 226/65) decided on 20.11.68 and Vishnu Pratap Singh v. State of M.P., (1990] Supp. S.C.C. 43, relied on.

4.4 In the instant case, the Ruler's absolute powers disappeared when re~pondent no. 1 ceased to be Ruler. If some properties did n_ot belong to him immediately before the appointed date, he could not, by

mere declaration under the covenant, make it his personal individual property. However the properties in suit were the personal properties of the Ruler as on the appointed day. [57 AB]

5. The Covenant· dated 27 .5.1949 settled the issue as between the

ruler and the Government of India and allowed the suit properties (covered under the covenant) to be retained by the ruler. It did not, hmvever, affect or prejudice the rights, if any, of third parties in the said .. properties.It created no title in the ruler to any properties other or higher than what belonged to him immediately before the appointed day. It did not affect in any way the nature of property in his hands or the claims if any which others might have had against the ruler qua those properties.

[45 GH; 46 AC]

Visweswar Rao v. State of M;P., {1952} 3 SCR 1020; Dalmia Dadri Cement Co.Ltd. v. CIT {19591 SCR 729 mid Rajendra Singh v. Union of India, '[1970] 2 SCR 63'1, relied on. · · .

Per Ojha, J.

1.1 Respondent nD. 1 was sovere~gn and the properties in dispute ·as held by the sovereign rulers from time to time were impartible. [82 A,B; 84FGJ

. 1.2 Unlike the joint family properties, in sovereign estate there can be no interest by birth or adoption and therefore the rights of partnership, maintenance, sur:vivor.ship and restraining alienation by head of fa.milies ri~ept for necessity, which are the necessary conse-quence of comnt'tltdty of inte:i'esf.cannotiitist. The Chief of sovereign estatt wau'ld hold th.e estate ·as full and <:omplete owner by virtue of his sovereign pow.er and' not by v.irtue of munkipal law and no one else can claim an interest in the ~t.ate. {78 FH; 79A8]

D.S. Meramwala Bhayala v. Ba Shri.Amarba Jethsurbhai, 1968 ILR 9 Gujarat p. 966, 'ap.proved •

1.3 One incidence Uf property held by sovereign was that there was

really no dl'ltinction between the public or State properties on the one hand and private properties of the sovereign on the other. The other incidence was that no one could be co-owner with the sovereign in the properties held by him; As regards the property of an absolute sovereign, there-is no pretence of drawing distinction, the whole of it belongs to him as sovereign and he niay dispose of it for his public or private purposes in whatever manner he may think proper, [81 GH; 82 Al

·.·· ...

· Mahant Hardia/Singh v: Ajmer Singh & Ors; '(C.A~ No~ 226/65; decided: .. on 20.11.1968); Tilkoyat Shri Govindlalji Maharaj v. The. State of Rajast/Um & Ors., (1964) 1SCR561; Mango/Singh & OrS. v~ The Legal Remembrancer,· Punjab & Ors., (C.A. No. 242/55, decided on 23.2~1960); Madheorao Phalke v. The State of Madhya Bharat, {1961) 1SCR957; Director of Endowments; Government of Hyderabad & Ors. v.AkramAli, AIR 1956 SC 60 and.Ameer.-B un-Nissa Begum & Ors. v. Mahboob Begum & Ors., AIR 1955 SC 352, relied on.1.4 The mode of succession of sovereign ruler and the .powers of such ruler are two different-concepts. Mode. of succession regulates the process whereby one sover.eign ruler is succeeded ·by the other .. It may ;be governed by the rule of general primogeniture or lineal.primogeniture or any other established rule_g9verning succession. The~ process- ends with . one sovereign succeeding another. Thereafter what.powers: privileges and prerogatives are to be exercised by the sovereign is question which :is. not· relatable to the.process of succession but-relates to the legal incidents of sovereignty.

1.5 Till the sovereignty,_or the MaJJarajah of Travancore bad ceased he was entitled to treat and use the properties under his sovereignty.ill any manner he liked and his will in this regard was supreme on. the prineiple that sovereign never dies and succession. to the next ruler takes place-· without there being .hiatus, there could :be no ,change in the legal stat.is of the properties held by one ruler and his successor. ·

Elphinstone v. BedreechundJ2 English Reports page 340, referred to.

Halsbury' s Laws of England, Fourth· Edition. Volume 8 paragraphs 851, 897 and 1076, referred to.

Baijnath Prasad Singh & Ors. v. Tej Bali Singh, AIR 1921 Privy Council, page 62; Shiba Prasad Singh v. Rani Prayag Kumari Debi & Ors:, · AIR 1932 P.C. page 216 and Commissioner of Income-tax, Punjab, North West Frontier and Delhi Provinces, Lahore v .Dewan Bahadur Dewan Krishna Kishore, Rais, Lahore, AIR 1941 P.C. page 120, held inapplicable.

Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur and Or's. v. Shri PUshavathi Visweswar Gajapathi Raj & Ors., (1964) 2 SCR 403; Nagesh Bis(o Desai etc. etc. v. Khando Tirmal Desai .etc. etc. (1982) 3 SCR 341; Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil & :H Ors., (1989] Supp.1 SCC page 246; Anant Kibe & Ors., v. PurushottamRao

& Ors .• l1984}'Supp. SCC 175; Tliakore Shri Vinayasinhji (Dead) by Lrs. v. Kumar. ShriNatwarsinhji. & Ors .• (1988] Supp. SCC 133; Bhaiya Ramanuj Pratap Deo v.Lalu Maheshanuj Pratap Deo & Ors., [1982] 1SCR417and, Chinntithayi alias Veeralakshmi v. Kulasekara Pandiya Naicker & Anr .•

(1952] SCR 251, referred to.

2.1 If someone asserts that to particular prop~rty held by sovereign the legal incidents of sovereignty do not apply,. it will have to· be, B. · pleaded and established by him th}lt the said property was.held by the so'Vereign·not as sovereign but in some other.capacity. cs2· E]

. In the instant case,· apart from.asserting that the properties in suit :belonged· to joint family and respondent no. 1 even though sov~reign · ruler, held them as the head ot'thefamily to which the property bel~nged; . . the appellant has neither specifically pleaded nor produced any com:inc-ing evidence·.in support of his assertion~ [82 EFl ·

· 2.2 The plea· of the appellant that the prop~rties in -suit. constituted .

1 [[D ]]

"Sthanani'' and· respondent no. 1 was Sthani thereof and therefore 1 [[D ]]section 7(3) of-the Hindu Succes.sion Act, 1956rwould be applicable to the pr0perties in ·suit, wanightJY·repelled by the High Court, inasmuch as in the .pleadings of the parties,there was no reference to the office of the Ru.ler being that of Sthani. No amount ofevidence can be looked into upon plea which was never·put forward. In his grounds-of appeal before the High Court t:te appellant took categorical stand .that the Court b~low should.have found that Ext. A. 3 did not create Sthanam in respect of' the plaint Schedule properties and that defendant was not Sthani thereof. [71C-G;73 CDJ

2.3 There was nothing on record to show that respondent no. 1 went to trial with knowledge that the question of there being Sthanam and he . being Sthani thereof was in issue a"id that any evidence.on the basis of such knowledge was produced on his behalf. [72 C]

In the absence of any pleading or issue on the point the·-rippellant could not be perm_itted to raise the question on the footing that it was pure question of Law. [73B]

Siddik Mahomed Shah v. Mt Saran, A.I.R. 1930 P.C. 57; Nagubai Ammal & Ors; v.B. ShamaRao & Ors., AI~.1956 sc; p. 593 andMordnMar Basselios Catholicos v. Thukalan Paulo Ayira & Ors., AIR 1959 SC p. 31, relied on. ·

[1991] SUPP. 3 S. C.R.

Thakur Sukhpal Singh v. Thakur Kalyan Singh, [1963) 2 SCR 733, referred to.

Treatise on Malabar and Aliasanthana Law (1922 Edn.) by P.R. Sundra Ayar, referred to.

3.1 All the properties belonging to the joint· family in which the appellant could have share or interest Were covertd by the ~deed: or partition dated 13.7.1971 arid the properties in suit did not form part of the said deed. [86 DE] ·

Keeping in view .the extent and nature or the properties in dispute, the meticulous care taken to describe the properties to be partitioned by the said deed and the pres~med knowledgeability of the persons who wete parties to the deed with regard to the family properties the only conclusion which can be drawn is that at the time of the execution of the deed of partition the parties thereto were fully conscious of the fact that the ~­properties in dispute were not joint family properties. [86 EG; 87BC]

3.2 In the ceiling proceedings only respondent no. 1 had filed

return under section 85 of the Kerala Land Reforms Act, 1963 and that too in his capacity as an individual. Non-filing of return by the appellant or any other member of the family as contemplated by either section 85(2) or section SSA is indicative of the fact that they did notconsider the suit lands to belong to the joint family. [87 F; 88 BC]

4.1 Since the properties in suit were not joint family properties but were the personal properties of respondent rio. 1, it need not be considered whether the nature of properties was impartible or its nature of partible joint Hindu family properties would get revived on the commeocement of the Hindu Succession Act, 1956 and the Kerala Joint Hindu Family System (Abolition) Act, 1975. [94 AB]

4.2 Even if the personal properties held by respondent no. 1 contin-

ued to retain the character of impartibility and they became partible subsequently, it would, in no way, advance the case of the appellant inasmuch as it was not shown that the appellant would be an heir of respondent no. 1 with regard to his personal properties. Apparently, such properties would on his demise be governed either by testamentary disposition or would devolve on his persotial heirs.[94CDJ

4.3 When both parties have adduced evidence, the question of

...... _

burden of proving that the suit properties were impartible or otherwise is not of very great importance and the Court has to come to decision on the consideration of all materials. [74 A]

Narayan Bhagwantarao Gosavi Balajiwale v. Gopal Vinayak Gosavi & Ors., AIR 1960 S.C. page 100, relied on.

Martand Rao v. Malhar. Rao, AIR 1928 Privy Council page 10, referred to.

5. The properties in suit had been earmarked by respondent no.1 as

his personal properties which he was competent to do as sovereign and the Government by accepting or approving the list of properties submitted by him as his personal properties in pursuance of the covenant did not purport on its own to create any right in favour of respondent no. 1 in such properties. The Government could have disputed the list submitted by respondent no. 1 but it chose not to do so and the ascertion of respondent no. 1 that the properties in suit were his personal properties was accepted.

[94 E-G]

Vishnu Pratap Singh v. State of Madhya Pradesh & Ors., [1990] Supp. sec. 43, relied on.

Kera/a District Gazatteers, Trivandrum by A. Sreedhara Menon (pp. 190-192), referred to.

White Paper on Indian States (published by Government of India, Ministry of States) Part VII pp. 156-157, refeired to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 534~35 of 1983.

From the Judgment and Order dated 8.10.82 of the Kerala High Court in A.S. No. 210 of 1979.

K. Bhaskaran Nambiar, IMA Chary, K.V. Mohan, S. Natarajan, C.S. Vaidyanathan, K.R. Nambiar and P.K. Dhillon for the Appellants.

G. Viswanatha Iyer, TSK Iyer, Pal1av Sudhodia, VJ. Francis, Raju Ramachandran, S. Murlidhar, T.V.S. Narasimhachari, A.S. Rao, P.K. Pillai and N. Sudhakaran for the Respondents.

The Judgment of the Court was delivered by

RANGANATHAN, J.-Shri Padmanabha Dasa Bala Rama Varma (hereinafter referred to as 'thefirst respondent') was the erstwhile Maharaja of Travancore, the sovereign ruler of that part of the territory of India which was formerly known as the State of Travancore. The State ceased to be sovereign princely State and the first respondent ceased to be its sovereign ruler with effect from 1.7.1949. On this date, the State was integrated w~th the erstwhile . Cochin State to form the United State of-Travancore and Cochin of which respondent no. 1 became .. the Rajpramukh. With effect from. l.1L1956-, ·the territories of the integrated State got merged with the rest of the territories-Qf .the Union.of India tooonstitute, after certain_rnOdifjcations, the:pt~ent:State· ofKerala. As.the Mahaiaja of Travancore, the first respondent.held sev~~ iteµis of immovable properties consisting of ho.uses, palace~ and lands. Most, ·if not all, the properties held by· 'him had been· inherited by. him· from his predecessor .:-Mahara jahas .. He may also· have acquired some proi)erties ~fter he became the Ruler but no details are available. It is, however,-coinmon,.ground that the cost of properties acquired by the first respondent or his predecessors had 'been met from the State coffers, there being nothing until 1949 to. distinguish between the funds ·belonging. to .Ruler in his individual capacity and the funds belonging to the State. They, were also disposing ofthe properties held by the1D from time. to. time .at their sweet will and pleasure and ji; is. common ground that even respondent no. 1 had disposed or several items of properties at various points of time and these alienations-even those made ~ter 1.7.1949-i;emained unchallenged.

In the context of the political developments referred to earlier, it became· necessary to make certain provisions regarding the properties which were · formerly .held by the Princely Rulers. On 27.5.1949, covenant Ex. A-2 (the: terms of which have been extracted in the ordet of my .learned brother Ojha, ~ J.) was entered into between the Rulers of the States ofTravancore and Cochin. It is common ground that, under the terms of the said covenant and the connected document (Ex. A-3), the properties we are here concerned with were declared by the first respondent to be his private properties and not State properties liable to be taken over by the Govemmen.t of India and that the Government of India have not contested the correctness of this declaration-at any stage.

In the present appeals, arising out of partition suit filed by the appellant . (inspired possibly by proceedings taken under the Keiala Land Reforms Act which resultedjn 191.23 acres out of the 309.25 acres of land held by the first respondent being declared surplus over the permissible ceiling on .the basis that they were the absolute properties of the first respondent), the appellant claims that the suit properties are divisible among himself and the 34 defendants to the

suit in equal shares and that the first respondent was entitled only .to am one-thirty fifth share therein.

Sri Bhaskaran Narnbiar, who argued the case elaborately and meticu-lously, attempted to convince us that the first respondent owned these proper-. ties, not as sole owner, but only in his capacity as the holder of an impartible estate, the karnavan of an undivided marumakkathayam tarwad or slhanee and that, in any one of the three situations, these properties have bt",eome partible under_ the provisions of recent legislations. The argument was that, if the properties . were those comprised in an impartible estate, the rule of primogenitm:e _could be lost (i) by renunciati~n. (ii) by statutory abolition or (iii) by the properties being no longer needed to maintain the status and dignity of the holder on the basis of the "cessante ratione legis, cessat ip!;a lex" doctrine. In this case, it is said situation (iii) developed when, on 1.7.49, th~ first respondent ceased to be ruler. The properties thereupon became the properties of the family or tarwad to which the Ruler .belonged and became. partible OQJ 7.6.56 when section 7(1) of the Hindu Succession Act came into force and, at any rate, on 1.12.76 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force. If the properties were merely those of tarwad or Hindu family, they became partible under the above enactments. If the analogy of sthanam applied, section 7(3) of the Hindu Succession Act, 1956 rendered them partible. Sri Nambiar invited us to decide the issues before us on the basis of these picturesque analogies, which appear, at first blush, quit plausible and attractive. Indeed I may admit, having regard to the devolution of rulership on the seniormost male member of marumakkathayam family and the resultant devolution of property from karnavan to karnavan, that l have still not been able to snake off feeling that basically counsel may be right in saying that the member~ of the family have right ~o share in the properties traceable to the family, once the first respondent ceased to be the Ruler. But I have coine to the conclusion, for the reasons discussed el.aborately in the judgement of my learned brother Ojha, J. and also th9se indicated below, that the pleadings put forward and evidence adduced in the case by the appellant fall short in establishing the family origin of the properties.

Before discussing the principal contentions urged on behalf of the appellant, it may be convenient to clear up ground put up on behalf of the first respondent purporting to be complete answer to the claim of the appellant. It was contended on his behalf that the declaration made by him that the properties were his private properties in terms of the covenant of May 25, 1949 concludes the issue once and for all. I agree with Sri Nambiar that this plea is untenable. The covenant only contained an assurance that the Government of India, subject to the arbitration clause in the covenant, would not question the

declarations by the erstwhile Rulers that certain properties belonged to them in their personal capacity and nor in their capacity as Rulers. It settled the issue as between the Ruler and the Government of India and allowed the said properties to be retained by the Ruler without being surrendered to the Government of India. It did not, however, affect or prejudice the rights, if any, of third parties in the properties so declared. It created no title in th~ Ruler to any properties other or higher than wh.at belotrged to him immediately before the appointed day. I agree with Sri Nambiar that one cannot read into the covenant some bargain between the covenanting Ruler and the Government of India whereby the latter, a<> quid pro quo to the former surrendering his · sovereignty, conferred on him rights to property which might or might not have belonged to him. It did not affect in any way t.tie nature of any property in his hands or t'1e claims, if any, which others might have had against the Ruler qua those properties. These propositions are clear from the decisions in Viswesh-war Rao v. State of M.P., [1952] SCR 1020; Dalmia Dadri Cement Co. Ltd. v. CIT., [1959) S.C.R. 729 andRajendra Singh v. Union of India, [1970] 2 SCR 63.l as well as the clarification contained in para 4 of the Government of India's memorandum dated 18.551 (Ex. A-4). The appellant's claim for partition cannot therefore be defeated merely by self-serving declaration of the first respondent that certain properties belonged to him absolutely if, in reality, they are established to be properties belonging to tarwad, estate or sthanam as alleged.

Now to tum «>-the analogies drawn by Sri Nambiar, they have been fully met by my learned brother Ojha, J. The analogy of an impartible estate as known under the Hindu Law cannot be extended to the present case for three reasons. In the fir.st place. all the decided cases referred to on behalf of the appellant, including the Tipperah case (12 M.l.A. 523), arose in situations where the holder of the estate acquiesced in the jurisdiction of the civil courts of the then British India to decide the issues raised as issues of personal law governing the citizens of the then rulers of British India though he was, by courtesy~ called Maharaja, Rajah or the like. Secondly, in those cases, the incident of irnpart.ibility attached itself to properties which belong to Hindu undivided family in order to give effect to customary rule of succession of all the properties to single indivi<fual, the rights of the other members of the .family to claim right by birth, maintenance or partition suffering an eclipse so as to prevent the disintegration of the estate. But, in the present case, even according to Sri Naml>iar, the properties were impartible because they were properties of marmuakkathayam tarwad .·which, till recently, was, even otherwise impartible. To put it differently, the irnpartibility here prevalent is not attributable to the cause that gave rise to impartible estates dealt with iD the cases cited by Sri Nambi~. Thitdly, as pointed out by Ojha, J ., this contention

of Sri Nambiar can ~Ye any validity at all only if the properties held by the first respondent and his predecessors can be said to belong, or to have belonged, to Hindu undivided family or mannumakkathayam tarwad and that has not been established in the present case. ·

Before dealing with the above point, however, I may deal with the contention based on the analogy of sthanee or sthanamdar put forward by Sri Nambiar. The nattire and incidents of sthanam property have been discussed in the decisions of the Privy Council in Venkateswara Iyan v. Shekhari Varma, 1884 ILR 3 Mad 384 and Kochunni v. Kuttanunni, ILR 1948 Mad 672, as well as several decisions of this Court : Kavalappara K. Kochunni v. State of Madras, 1%0 3 SCR 887, M.K. Balakrishnan Menon v. ACED, [1972) 1 S.C.R. 961; and Inspecting Asst. Commissioner,Ag.1. T. v.RamunniPanikkar [1972] 1S.C.R.935. It is, however, unnecessary to discuss these decisions here in detail as they throw no light on the qliestion whether the Rulership of Travancore can be equated to sthanam. Sri Nambiar's criticism of the judgment of the High Court in this regard was that it erred in thinking that the institution of sthanam was peculiar institution familiar only in the northern part of the Kerala State viz. Malabar and was not well known in the territories comprised in the erstwhile States of Travancore and Cochin. Sri Narnbiar has shown us no material in suppon of the contention that sthanams also existed in the States of Travancore and Cochin except to rely on the use of this word in the deciaration Ex. A.3 and casual mentions of the word in Velu PiUai"s Travancore State Manual [Ex. B-19} which, as pointed out by Ojha, J. cannot be conclusive, particularly when the appellant himself contested this position in his grounds of appeal to the High Court. I would only like to add that notions such as these are very elusive and it is tempting to adapt them to other situations which bear only superficial resemblance thereto. Construed in very literal sense,. the position of every King or Ruler and, indeed, of every Corporation sole or office holder can be approximated to that of sthanamdar but these two sets of expression are not inter-changeable. In Manavikraman Raja v. C.E.D. (1957) 32 I.T.R. (E.D,)1, an attempt was made to contend that the Zamorin of Calicut, who was admitted to be sthanamdar, was a· '00rporation sole' within the meaning of section 7(4) of the Estate Duty Act, 1953, but this contention was repelled. Here we have the converse claim. Merely because the properties held by person devolve by rule of succession related to the position held by him, it does not follow that such person is sthani within the meaning of section 7(3) of the Hindu Succession Act. As explained in Mulla's Hindu Law, 15th Edn., p. 940 and the decisions referred to earlier, it is clear that three important incidents characterise sthanam and its properties, which are absent here. In the "first place, the powers of sthani to alienate the corpus of the sthanam properties or to bind his successors by his debts are limited. The · powers of the first respondent as sovereign ruler . in these matters were unlimited. Secondly, ~hen sthanam was created by opulent and influential families, the members of the tarwad agreed to set aside for the karnavan certain properties in order that he might keep up his social position and influence; such properties descended to the next head of the family and the other members of the tarwad had no rights therein except reversionary rights in case the sthanam ceased to exist. As will be seen later, when discussing the analogy of marumakkathayam tarwad, there is,riothing whatever on record to show that any properties of any tarwad to which the Rulers belonged had at the inception ofJhe Rulership been set apart for the benefit of the Ruler. Thirdly, in the case of sthanam, the sthani ceaSes to have any interest in the other properties of his tarwad because the tarwad has already allotted properties belonging to it to meet the needs of the sthani. There is nothing in the present case to show · that the Ruler had no such interest in the other properties of the tarwad to which he belongs. The analogy of sthani must, therefore, fail.

It will be seen from the above discussion that the appellant cannot succeed,unless there is material to show that the properties held by the first respondent and his predecessors had their origin in the tarwad to which they belonged. There is clearly no such material on record, as the precise origin of theRulership of Travancore is. lost jn antiquity. Indeed; as rightly pointed out on behalf of the first respondents, this . is perhaps the reason why three is confusion on this score in the pleadings of the appellant. The plaint alleges that the first respondent was the karnavan of tarwad known valiakottaram of which !.h~ appellant and defendants 1 to 34 were members. This becomes' important because the main basis of the appellant's claim that the Ruler got some properties from the tarwad is the 'treaty' between Marthanda Varma and the Attingal Ranees. This does not help the appellant for two reasons. In the first place, ex facie, it shows that the institution of Rulership existed even anterior to the treaty and, consequently, that the ownership of properties by the Ruler did not have i~ origin in the family. Secondly, the treaty with the Atting(ll Ranees relates to what have been described as the ·· Sreepadom properties. The first respondent claims that these proPerties were the only properties of tarwad which may be called I.he 'Sreepadom Palace Tarwad' and, according LO him, the properties of this tarwad had been completely partitioned under Ex. B-3 in 1971. There cannot be two tarwads known as Valkottaram and Sreepadom comprising exactly the same members. If they were two different tarwads, the appellant should have said so, explained the nexus between them, clarified which of them is the impartible estate ·or sthanam and detailed the properties _belonging to or acquired with the aid of the properties belonging to either and also demonstrated that only the latter was partitioned-wholly or partly-under Ex. A3 but that the former was not. Far

from doing this, the plaint has avoided all reference to Ex. B. 3 and some use is sought to be made of it, when pleaded in reply, to claim that, even according to it, some of its properties still remain unpartitioned and should be made available for partition now. I shall later touch upon Ex. B. 3 and the infirmities of the appellant's claims based thereon but I am referring to. it here only to show that no evidence has been let in to show that any properties (other than those covered by the treaty) were vested in any ruler by tarwad, which become available to it on the cessation of the Rulership. It is this basic infirmity that vitiates the appellant's claim on each one of the analogies on which he bases his claim.

One of the factual aspects on which reliance is placed by the learned counsel for the appellant for claiming family origin to the Ruler's properties is that the properties of the rulers have passed on from one ruler to the next even though the latter was not direct lineal descendant It is urged that, if the properties had been the personal properties of the ruler, they would have devolved on his personal heirs on his death. In my opinion, this is not very helpful argument. All the properties held by monarch or ruler devolve by the rule of primogeniture; there being no distinction in this regard between his personal properties and those held by him as ruler. But this need not necessarily be lineal primogeniture. It could be general primogeniture, the successor to the rulership being determined according to some prevalent custom. The properties will devolve on the successor so decided upon. The fact that the successor is determined on the basis of marumakkathayam law no doubt causes the properties to devolve on the next karnavan who succeeds to the rulership. But this does not necessarily lead to the inference that the properties held by the Ruler are the properties of tarwad. The devolution is by succession from ruler to ruler and not one by way survivorship under the marumakkathayam law due to one karnavan taking the place of deceased predecessor. This circumstance does ncit, therefore, in my opinion, establish the appellant's claim.

Sri Nambiar al~o suggested that, if the properties were the personal properties of the previous rulers and had devolved on the first respondent, they would be ancestral property in his hands. There is fallacy in this argument. The doctrine of Hindu law that property inherited by son from his father would be ancestral property in his hands cannot be applicable in this context. The devolution of properties here was from one monarch to his successor (who is not son or lineal descendant) and the successor would be as absolutely entitled to them as his predecessor and cannot bec.ome limited holder.

Apparenily realising these difficulties, Sri Nambiar contends that the trial court and High Court have committed an error-which we should not

repeat--0f placing the onus of proving all this on the appellant. He claims that it was sufficient. for him to show that there was tarwai a~d the first respondent was its karnavan. Then, according to him, it follows, as propo-sition of law, that all· properties acquired by the karndvan, whether with or wittioutthe aid of ariy tarwad properties in his hands and .whether by virtue of his being karnavan qr by virtue of so~e absolute rights that he may otherwise have come to acquire, will.all be the properties of the tarwad. We are unable to accept the appellant's contention. Under the general Mitakshara Law applicable to Hindus there is no presumption that the prC?perties a~quired by any member of the family, even the karta, arc joint family properties.unless there is, in his hands, nucleus of joint family property which could have been utilised for acquiring such properties or the properties are shown to have been acquired by him as karta for and on behalf of the family. This position was clearly stated by Vcnkatarama Ayyar, J. in Shrinivas Krishnarao Kango v. Narayan Devji Kango and others, (1955] 1 S.C.R. 1 Sri Nambiar,. in this context, relied on certain observations made by: Subba Rao, 1: (as he then was) in Achuthan v. Chinnamu, (1966] 1 S.C.R. 454 to contynd that the position under the Marumakkathayam Law is quite different.Said the learned Judge:

"Courts have recognized the difference between joint· Hin~ht family under the Hindu law and tanvad under the Mar-umakkathayam law in the context of acquisition of proper.ties and have adopteJ different principles for ascertaining ~heth~r prop-erty acquired in µie name of member of family_is joint family property or the self-acquired property 9f th_c said member. Under Hindu law, when property stands in the name of member of joint family, it is incumbent upon those asserting that it is joint family p~operty to establish it. When it is proved or admitted that family possessed sufficient nude.us with the aid of which the member might have made the acquisition, the law raises pre-F -sumption that it is joint family property and the onus is shifted to the indiyidual member to establish that the prop~rty _was ac-quired by him without the <tid of the said nucleus. This .is well sP-ttlcd proposition of law. But the said i.-rinciple has not been acc~ptcd or applied to acquisition of properties in the name of junior member of tarwad (anandravan). It was held that there was' no presumption either way; and that the.question' had to be decided on the facts of each case,: sec Govinij.a v. Nani (1913) 36 Mad. -304, Dharnu Shetty v. Dejamma A.LR. 1918 Mad. 1367, · Soopiadath Ahmad v. Mammad Kunhi A.I.R. 1926 Mad. 643 and ThathaAmma v. ThankappaA.l.R.1947.Mad: 137. But it is settled law that if property is acquired in the n_ame of the karnavan, th~rc

BALAGOPALAVARMAv.BALARAMA VARMA[RANGANATHAN,J.] . -· . . .

is ~ strong presumption that it is tarwad property and that the presumption rtiust hold good unless and until it is rebutted by acceptable evidence: See· Chathu Nambiar v. Sekharan Nambiar A.LR. 1925 Mad. 430; SoopidathAhmad v. Mamniad Kunhi A.LR. . 1926 Mad. 643 and ThathaAmma v. Thankappa A.I.R.1947 Mad. 13·7 .. " .

Sri Viswanatha Iyer points out that, despite these observations, the Court, in the above case, proceeded to consider the facts of the case arid to point out that the karnavati and the junior member in that case were· in possession of consider-able tavazhi properties from the income out of which the disputed properties could have been purchased. I shall, however, proceed ol) the basis that there is such presumption in the case of an ordinary tarwad. It is plain, I think, that no such presumption can operate where the karnavan; being sovereign ruler, acquires properties in exercise of his sovereign rights. Neither the family nor ·any member of the family could dream of putting up claim, so long as he is ·the ruler, that as the properties had.been acquired by member of the family they belong to the family. It would not be correct to say that they have such right but that the right remains dormant so long as the ruler is sovereign and will revive on the ruler·ceasing to be sovereign. This is,indeed, forcefully brought out by the.observations of Bhagwati, J. (as His Lordship then was) in Meramwala Bhayala·v. Ba Shr.i Amarba Jethsurbhai, I.L.R. 1968, 9 Guj. 966 which have been extracted in the judgment of my learned brother Sri Ojha. Il is suggested th!it the. observations .in that case run counter to the catena of decisions in the case of impartible estates relied on by Sri Nambiar but this is not correct. If the estate dealt.with in that case had been qn ordinary impartible estate, the decision. should perhaps been quite different. But ,once the distinc-tion is bople in mind that the estate was sovereign estate and its chief · sovereign ruler, the real import of the. decision becomes Clear. It establishes beyond doubt that the acquisitions by sovereign ruler cannot be claimed to be joint family property. . · . · · ' ·But, even proceeding on the basis that in marumakkathriyam family there is presumption that the properties acquired by the karnavan would be joint family properties. that Ruler is in no better position than an 'ordinary karnavan and that nucleus of joint {amily properties was provided by the Attingal Ranees, I think that any presumption that the properties presently in dispute were joint family properties stands more than rebu'ued by the other circumstances of the case and the conduct of the parties ~hich are clinchingly against the.possibility of there being any tarwad properties as alleged now. In the first place, the properties in suit arc alleged to belong to tarwad known as Valiakottaram and it cannot be just assumed, as contendbd by Sri Nambiar, that this is identical with the Sreepadam . tarwad. Secondly, the 'partition deed' .

of 13.7 .1971 (Ex. B. 3), which is admittedly Pru:tition.deed in respect of the Sreepadom properties, clinches the issue. It is settled law that, when there is partition of joint family, there is presumption that the partition is full and complete. Thereis no room for thinking that any of the joint family propenics had been left out of the partition. As pointed out by Ojha, J ., clause 19 of this partition deed is only provision ex abundanti cautela and docs not lead to an inference that there w~re other Sreepadom properties which had been left out of the partition. Much less can there be any inference that there were propenies other than the Srecpadom properties belonging to different Valiakottaram tarwad. It can hardly be suggested that, at the·time of this partition the other members of the tarwad were unaware· of the existence of the propenies presently in dispute or that, due to some oversight, such extensive properties had been left out frbm inclusion in the partition. Sri T.S. Krishnamurthy Iyer, appearing for the Slate, pointed out that, as early as 1.11.61, Defendant No. 19 gave public notice in the newspapers that Va/iakottaram properties belonged to the members' of the ruling family (though it' does not "refer iri terms to tarwad) and that the first respondent was not competent iO alienate them. There is letter dated 24.9 .. 64 (~om the Govemmen.t of India addressed to Defendant No: 13 refusing consent to her tq sue the first respondent but stating that it had been suggested to the first respondent that he may think of having partition effected of"the Sreepadom properties". Again; on ll.8~1969, DefendantNo. 12 issued public advertisement c~allenging proposed ·alienation by the first respondent of property kno~n as Satelmond Palace and. clUiming' that all the properties 1!1ken by the first ~sp~ndent under the coven-ant-with the Govem-E ment,of India and "ail other aricestra1 properties" belong to the family of ~hich the first respondent was oniy karn~van. The non-inclusion.of these properties Qr even mention thereof in tile partition deed is sign\ficant Sri Nam biar seeks to get out of this situation by urging t~at in 1971 ~ marumakkathayarri ta_rwad was impartible and that they had to be content with partition of such of the properties as the first respondent was willing to have partitioned and there was _no way of their enforcing claim of partition of all the properties belonging to the tarwad. But this is not satisfactOry e){planation. Though tarwads were .impartible under customary law, they were made partible by single or two-thirds majority of their adult members by the Marumakkathayam· Act (Act 22 of 1933) an_d comple~ely. partible at the instanc_e of any h1dividuat" member by the Marumakkathayam (A'Ilendment) Act (Act 26 of 1958). But even assum-ing _that the Royal family of Travancore was outside -the scope of _these , legislations because of the Travancore Kshatriya R.egulation, it is curious that individual members, having come out of their shell to challenge alienations by the erstwhile Ruler, took no further steps in the matter . .If they considered it imprµdent, for som'e·reason, to take legal action _to challenge .the alienations which were being made by the first respondent from 1961 onwards, they would

certainly have got incorporated in the document of 1971 some reference to the other tarwad properties or atleast some indication that only some of the tarwad properties (the partition of which were acceptable to the first respondent) were being partitioned by tha~ document in case their'claims in this regard were serious. Thirdly, the conduct of the other members in the proceedings under the Land Reforms Act is also interesting. The Land Board had issued notices under the Act to all individual members including the plaintiff, Defendant No. 3 and Defendant No. 12 besides general notice published in the newspapers. While the first respondent claimed that all the properties belonged to him individu-ally, D3, D13 and some others did claim share in what were alleged to be · "tarwad properties now controlled by the Maharaja".The claims of the hitter were rejected by the Land Board and.they preferred civil revisions to the High Court. The claims were vital in those proceedings as, if accepted, substantial extent of lands could have been saved from being declared surp.lus. Yet perusal of the proceedings shows that the claims agitated there were totally· different : they were very much restricted and contained no reference to the present fundamental issue. Indeed, it is interesting to see that Defendant No. 12 claimed that the Satelmond Palace had been acquired by her by way of grant from an earlier ruler, the late Sree Moolam Thirunal Maharaja. The present plaintiff sought to reopen the Board's proceedings by making an application under section 85(9) of the Land Reforms Act filed after civil revision petition preferred by him ·from the Board's order had been dismissed on grounds of delay; If, indeed, the appellant and the other members had been serious about their claim that these were all tarwad properties, the real battle would have been fought in greater earnest in the proceedings under the Land Reforms Act and not relegated to suit to be filed later by the.plaintiff taking advantage of the fact that he was minor on the date of the partition. Fourthly, some of the properties and the income therefrom were returned for assessment, and as-sessed, to wealth-tax and income-tax only by the first respondent. If, as is now contended, the other members of the family became tenants-in-common in · respect of the stiit properties on 17 .6.1956, they should also have taken steps to file returns or get assessments made on themselves at least after that date. In fact, the first respondent sought to contend, in those proceedings, that at least the Sripadam properties should be assessed· separately in the hands of an association of persons and sought the cooperation of D3 which was not forthcoming. (Ex. A. 23). Lastly, there is the evidence in· the form of settlement registers, maintenance records, state budget papers, the· proclamation and circular referred to by Ojha, J. I would not attach conclusive weight to these either way as they only represent entries made at the instance of the first respondent. But they have some significance~ Some of them relate to period long anterior to the political upheavals that eventually put an end to the sovereignty of the first respondent It will be appreciated that if the properties

had been family properties and had been acknowledged by the Ruler to be such (as is sought to be made out on the basis of the proclamation etc.) the entries would have been in the name of the larwad or the senior Rani. The entries as made, therefore, lend som,e support to the contention that the Ruler di°d not recognise the properties as the properties of the family and considered them to be his own.

For the reasons given above, I agree with brother Ojha, J. that the suit properties have not been shown to be properties belonging to ari undivided family or marumakkathayam larwad and hence partible. On the other hand, th.ey were, and were also treated as, the personal properties of ~e Ruler. In view of this conclusion, several of the other questions debated before us .do not arise. l shall, however, touch upon some of them for the sake of completeness,

Sri Nambiar strenuously contended that though the first respondent was sovereign and independent Ruler he could not have appropriated the proper-ties of the family as his own. The decisions in Visweshwar Rao v. Stale of M .P., [1952] S.C.R. 1020; Jagannaih Behera v. Raja Harihar Singh, [1958] S.C.R. 1067; Sudhansu Shekhar Singh Deo v. Stale of Orissa, [1961] 1 S.C.R. 779 and Kunwar Shri RajendraSingh v. Union, [1970] 2 S.C.R. 631, cited by him are not relevant on this issue. They only hold that, after ruler has ceased to be sovereign, the properties recognised _by the covenants of accession and merger as his personal properties arc in no better position than.the properties ~f any other citizen and can be made the subject m~tter of legislation or litigation like any other such property: They do not relate to the rights of sovereign qua properties of others wh~n he is sovereign. Sri Nambiar then referred to observations iri State of Bihar v. Maharajadhiraja Sir Kameshwar Singh, [1952] S.C.R. 889, to urge that the doctrine of eminent do!'Ilain has alv:;ays · carried with it an inherent limitation that no subject .can be deprived of his property without payment of just compensation and to observations.in Viren-F dra Singh v. State of U.P., [19?51 1 S.C.~. 415 to support the contention that no sovereign can exercise an "act of State" against his own subject: The observations first referred to summarised the English Common Law, the · con.tinental d9ctrine and their s~bsequent American adoption. The latter case touched upon, but did not decide, the scope of the rights of citizen against the State in the pre-constitution era. These dc~isions are not of any direct assis-tance. On the other hand, counsel for the first respondent _cited catena of decisions to show that monarch's word was law and that all acts of sovereign ruler, irrespective of whether they arc dubbed as legislative, execu-tive or judicial were beyond question by any authority in the State. These decisions have been referred to by Ojha J. iri his judgment and need not he discussed again. In the face of these decisions, it is difficult to agree that \ the:-c

were any limitations on the sovereignly of Lhe Ruler ?fTravancore so long as he was the Ruler or import, in the state of absolute monarchy that prevaiied then, the doctrine that the Ruler could hot take away· the property belonging to any subject without payment of compensation or that he could not be an abs'olute despotif he chose to and deal with the properties of his citizens as he liked.

I should, however, like to touch upon certain decisions of this Court which were referred to in the course of arguments. In State of Gujarat v. Vora Fiddali, [1964] 6 S.C.R. 461, Constitution Bench of this Court held, by majority, that "tharao" issued by Maharaja could.not be considered to be law for the purposes of Article 372 of the Constitution. This principle was followed in Rajkumar Narsingh Pratap Singh Deo v. State of Orissa, [1964) 7 SCR 112, State of.M.P. v. Lal Rampa/ Singh, [1966) 2 S.C.R. 53; and State of M.P. v. Lal Bhargavendra Singh, [1966] 2.S.C.R. 56. The effect of these decisions was summarised in Maharaj Dhiraj Himmatsinghji v. State of Rajasthan, [1987) 1 S.C.C. 52. In that case the sovereign State of Jodhpur merged with other states on 7A.1949. On the same date an ordinance was promulgated by the United State providing for the continuance of all laws in force in the covenanting States. The question arose whether an order passed by Lhe former' Ruler of Jodhpur in 1946 directing the payment of an annual allowance to his soris from the date of their birth to the ctate of their majority wouid be "law" within the meaning of the ordinance. The High Court and Supreme Court answered the question in the negative. The Supreme Court. obse~ed: · · · ·

"The High Court negatived this contention relying on the law enunciated by this Court in catena of decision. Thr Yiew lakcn iri the aforesaid d.ecisions in substance was tha~ every order passed by Sovereign Ruler was not 'law' inasmuch as it was not necessarily an order passed in the discharge of its legislative function. The Ruler of the Sovereign State, when he passes an order, ·may be acting in any one of the.three spheres namely, legislative sphere, executive sphere or the judicial sphere, though all the three· capacities were combined in him. All the same, only that order would constitute 'law', which was passed in exercise of the powers of the Sovereign in the legislative sphere, and none other. An order passed by the Sovereign in his executive capacity, if it is not the result of legislative process, and if it is not calculated or designed. to bind as rule of conduct, cannot be characterized as 'law: .llf ·the result of the order was no more than to.bring a~out a·c~ntract:·~-­or grant or gift, it would not constitute 'law'. The High Court

was right in talcing the view that having regard to the language of the order itself, it appeared to be an executive order conferring grant (or gift) on the plaintiffs. It.did 11:ot have the characteristics of legislative mea~ure and did not constitute law inasmuch as ·it failed to pass the earlier mentioned tests evolved by this Court in the matter of State of Gujarat v. Vora Fiddali J\.I.R. 1964 SC 1043 andRajkumar Narsingh Pratap SinghDeo v. State of Orissa, AIR 1964 SC 1793."

Sri Nambiar contended that the above decisions must be considered to have whittled down the authority of some of the decisions relied upon for the first respondent and referred to by Ojha, J. I am unable to agree. These decisions arose in the context of the question as to whether certain acts of the erstwhile Rulers would be binding on the successor States of the union as "law" the continuance of which until altered legislatively is postulated by relevant statutory provision or Article 372 of the Constitution. In that situation, while certain decisions ref erred to by my ~earned brother had taken broader view of the term "law", the group of decisions referred to by Sri Nambiar placed narrower interpretation. But this principle does not apply in the present context where the q~estion is whether an erstwhile subject will be entitled to challenge any act of his former sovereign on the ground that it would hot bind him. The answer to this question must be in the negative. This conclusion is reinforce by the unreported deeision of 1968 in C.A. 226/65 (Mahant J-lardial Singh v. Ajmer Singh) referred to by my learned brother. I would, hold, therefore; that if the properties, though family properties, had been treated by the Rulers as their personal properties, the family and its members cannot get over that situation and challenge what was done by the erstwhile Ruler in the exercise of his sovereign power. ·

The other decision to which I would like to refer is that in Vishnu Pratap Singh v. State of M.P., [1990] Supp. S.C.C. 43, to which I was party. In that case, house property had been shown by the Ruler in the list filed with the _ Rajpramukh under ·covenant of agreement forming union l states as his private property. He gifted the property subsequently on 25.8.1948. The State of M.P., which succeeded the ·Ruler eventually, was held disentitled to challenge the gift made by the Ruler at point of time when he was sovereign Ruler, though the State Claimed that, subsequently, the Ruler had shown the property as State property in list submitted to the Government of India in pursuance of like covenant of September 1949 .. This decision upholds the absolute right of ruler to dispose of, at his will, even properties which may -actually bel~ng to,the State and also implicitly.acknowledges his right to take i~ back from ilie donee at his pleasure (though in fact he did not even exercise

the latter power in that case). It is of course patent that he could not exercise either of these powers after he ceases to be sovereign ruler.

I agree with Sri Nambiar that the Ruler's absolute powers disappeared when the first respondent ceased to be Ruler. If some properties did not belong to him immediately before the appofoted date, the first respondent could not, by mere declaration under the covenant, rriake it his personal individual property. But as I have come to the conclusion that they were the personal properties of the Ruler as on the appointed day, this aspect does not arise for· further consideration. '

There was also good deal of discussibn before us about the effect of the varfous legislations. I should like to touch upon these points briefly. Taking up the Hindu Successiort Act, 1956, it is poirtted out that, originally, section 5 of the Bill had excluded the application of the Act, under clause (iii), to any property succession to which is regulated by riumber of enactments in force in the erstwhile State of Kerala including, inter alia, the Madras Mar" umakka:thayam Act (Act XXII of 1933) and the Travancore Kshatriya Regu-lation (VII of 1108) and, under clause (iv), to "any estate which descends to single heir by customary rule of succession or by the terms of any grant 'or enactment". These· latter words were wide enough to exclude the applicability of the Act to the properties of the Travancore Ruler. However, the Joint Select Committee which considered the Bill was not in favour of such general exemption and the statute, as eventually enacted, contained much more restricted provision. Section 5(ii) of the Act excluded the applicability of the Act only to "any estate which descends to single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the tenns of any enactment passed before the commencement of this Act". There being no such covenant, agreement of enactment in the present case, it is argued, the Hindu Succession Act will apply. One of the provisions of the Act is sccUon 4 which, in so .far as is relevant for our purposes, reads : .

"4. Overriding effect of Act - (1) Save as otherwise expressly provided in this Act, -

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the com" mencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement

of this Act shall cease to apply to Hindus ·in so far as it is inconsistent with ariy 'of the provisions contained in this Act."

As pointed out by this. Court fo haiya R amdnuj Pratap Deo v. Latu M,ahesha-nuj Pratap Deo and Ors. [1982)1 S.C.R. 417, the effect of the provision is that succession to impartible estates other than those mentionyd in clauses (ii) and (iii) of the section is governed by the Act and in those cases the rule of primogeniture stands abrogated. So also, it is said, if the suit properties arc treated as tarwad properties, the custom o.f devolution to the next karruivan of the family would be inconsistent with the provisions of section 7(1) of the Act. Or, again.if the properties are treated as those of sthanamdar the custom of succession to the next sihanee would be inconsistent with the provisions of section 7(3) of the Act. The que8tion, however, is~ assuming that the analogies. are accepted as vaiid, when docs the custom cease to operate? Can it be said, as contended for by Sri Nambiar, that the properties became partible on 17 .6.56 when the Hindu Succession Act came into force or only on 20.7 .1991 when the first respondent passed away and the succession to his properties opened. In support of his· contention Shri Nambiar refers to Sundari v. Lakshmi, [1980) 1 SCR 464 as interpreted by th.c Gujarat High Court in Pratapsinhji N. Desa{v. Commissioner of Income-tax, (1983) 139 I.T.R. 77, and the 'Patna High Court in C.I.T. v. Maharaja Chintamani Saran Nath SahDeo, (1986) 1·57 I.T.R. 358, overruling CJ.T. v. Maharaja Chintamani Saran N~th Salideo, (1982) 133 ITR 658 (Pat) and differing from CJ.T. v. U.C. Mahatab, Maharaja of Burdwan, (1981) 130 1.T.R. 223 [Cal]. We have examined ihese decisions. · Suruldri v. Lakshfni (supra) .dealt with the question of'a succession that opened out after 17 .6.1956 and there is nothing in this decision which would support the. conclusion that the customary rule of primogeniture or survivorship would automatically cease on 17.6.1956. Section 4 ofihe Act, in the words of Sundari v. Lakshmi (supra), "gives overriding application to the provisions of the ·Act and lays down that in, respect of any of the matter dealt with in the Act all existing laws whether in the shape of enactment or otherwise which are inconsistent with the Act are epealed. Any other law in force immediately before the commencement of this Act ceases to apply to Hindus insofar as it is inconsistent with the provisions contained in the Act." In other words, while the Act may have immediate impact on some matters such as, for e.g., that covered by section 14 of the Act, its impact in Jllatters of succession is different. There the Act only provides that, in the case of any person dying after the commencement of the Act, succession to him will be governed not by customary law but only by the provisions of the Act. This is, indeed, clear if we refer to the terms of section 7(3) which get attracted only when' sthanaindar dies after the commencement of the Act. There is, therefore, no reason to hold that the appellant's entitlement to sue for the partition of the

properties arose on 17 .6.56. Indeed, if that had been the position, the appellant would not have allowed more than decade to go by before instituting the suit for partition, particularly in view' of the controversy that had come to the fore as early as 1961.

Had the position stood controlled only by the provisions of the Hindu Succession Act, perhaps the appellant's right to claim partition would have matured only when the first respondent passed away recently in 1991. How-ever, the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) put an end to all Hindu joint families in Kerala with effect from 1.12.1976. The provisions of this legislation have been interpreted by this . Court in Rama Verma Bharathan Thampuran v. State of Kera/a and Ors., [1980] 1 S.C.R.136 an unsuccessful attempt for review of which is reported as Palace Administration Board v. Rama Verma Bharathan Thampuran & Ors., [1980] 3 ~.C.R. 187. One interesting question that arises in this context is this .. Section 2 defines "Joint Hindu Family" to mean any Hindu family with community of property and to include all tarwads and tavazhis governed by various Kerala enactments, one of which is the Travancore Kshatriya Regula-tion, 1108 ~hich was repealed by this Act However, unfortunately, the Travancore Royal family was excluded from the purview of the Trav~ncore Kshatriya Regulation. The Royal Family of Travancore was therefore not tarwad or tavazhi governed by the 1108 Regulation and would not, therefore, come within the inclusive part of the definition of 'joint family' i'n the 1976 Act· Bowever, the first part of the definition is wide enough to include all Hindu joint families, the only exception being the Cochin Royal Family in respect of which special provision has been made in section 8 of the Act. There can therefore be no doubt that, on 1~12.1976, the fan:iily came to an end and the family members became tenants-in-common in respect of the family property. However, this issue need not be probed further in view of our conclusion that th.e suit properties did not belong to Hindu undivided family or marumakkathayam tarwad.

Sri Nambiar made point that atleast the Sreepadom properties situated outside Kerala should be held to be partible. He bases his contention on the terms of the proclamation .issued by the first respondent 10.8.1947. The proclamation starts with preamble in the following words :

"Whereas Our Ancestors and Ourselves have, as devotees of Sri Padmanabha, been ruling over the State of Travancore during many centuries and Our sole. concern has been the welfare and happiness of Our subjects whom we have been associating with Us and propose further to associate with Us in the administration of the State :

And Whereas it has become necessary, in the events that have happened, to. regulate the succession to the throne of Travan~ core, to determine other questions incidental thereto, to regulate· and fix the Civil List of Ourselves and the members. of Our Royal Family and to make provision for certain other purposes :

And Whereas in respect of succession, adoption," mar-riage, and other matters, Our Royal Family has, from time imme-morial, recognised and observed the Marumakkathayam Law as modified by customs and usage in Our Royal Family :"

and proceeds to declare, in para 9 :

"9. All properties moveable and immoveable, acquired in the name of Our Dewan or on behalf of our Government in any place outside . Travancore shall be treated as Our Personal properties and shall be at the disposal and for the sole use of ourselves and of the members of orir Royal Family."

It is·suggested that the direction that all these properties "shall be atthe disposal and for the sole use of ourselves and of the members of our Royal Family" bears out the contention that the· Ruler recognised that these were family properties. I am unable to agree. The ProClamation was issued. by the Ruler few days before the declaration of India's independence. Being royal proclamation it uses the plural to denote. the Ruler. ·Its p.urpose, fof°whatever it was worth, was to declare that the specified properties acquir~ out of State. funds outside the territories· of Travancore, were his personal propert!es. and would be avail11ble for the use of the Ruler and the m.embers ~f the Royal family. The words "at the disposal of' in the context only permit right of user and do not envisage right of disposal of the properties by the other members of the family. In any event, this Proclamation was amended on 23.3.1948 by the issue of another Proclamation which substituted the following section 9 in place of the earlier s~ction 9 : ' '

"9. Immovable properties in Courtallam, Tinnevelly District, in Ootacamund and Kotagiri on the Nilgiris, in Adyar, Madras, and in New Delhi (all houses and grounds), purchased and improved for the use and benefit of the Sovereign and the members of the Royal Family, together with the movable properties therein, shall be the personal property of Us and Our Successors and shall be at Our disposal".

This was also pre-accession proclamation and leaves no doubt that, atleast in the minds of the Maharaja, there was no doubt that these were his personal properties. The claim, on the basis of the proclamation, that atleast the properties outside the territory of the erstwhile Travancore State would be partible, is, therefore, not tenable. Indeed this contention is inconsistent with another,- apparently alternative, contention put forward by Sri Nambiar that these proclamations manifest the intention of the first respondent that proper-ties outside Travancore will also have the same character as those inside the State.Sri Nainbiar coulci not dispute that the case presently made out on behalf of the appellant was not pleaded in tllese terms in the trial court or High Court. His submission, however, was that he was adducing no new facts but was on.ly seeking the application of first principles and precedents to admitted fact-;, which the trial court and High Court haq failed to do. He was only, he said, meeting the case of the first respondent, on the facts admitted by him, on the basis of legal.contentio11s which may have not been put forward in these precise terms earlier. I agree with Ojha J. that the case is not as simple as that. The appellant has co~e. to court seeking partition. of certain_ properties alleging them ~o be properties of tarwad of which he wa<; member. He .must plead and prove the exact composition of the tarwad as well as the nature and mode of acquisition of properties and establish how the properties fall to be treated as the properties of the tarwad. As I have already mentioned, I do not think that there are any presumptions which come to the rescue of the appellaf!!. in this matter. An element of uncertainty has been introduced because at some. s~ge in this history of the palace of Travancore, the Ruler entered into an agreement with the Attingal Ranees under which the mode of succession to the throne was defined and the management of certain properties belonging to the Sreepadom tarwad was assumed by the Ruler. But this caimot lead to the conclusion that all the properties held by the Ruier were held by h_im only as Karnavan of the faµiil}'.. I have also earlier pointed out that the conduct of the other members of the family, the partition of 1973 and several oth~r circumstances militate against the state of affairs pleaded by the appellant. His pleas cannot be taken as pure contentions of law. They are dependant, for their acceptance or otherwise, on various facts in respect of which no proper foundations have been laid.It is, therefore, impossible to acceptthe legal contentions urged_ by Sri Nam_biar on the basis of an interpretation of facts that will fit in with these . contentions put forward for the first time befm;e this Court. ·

. _ In the iesult,J agree with Ojha, J. tliat the appeals ha~e to be dismissed. I have beCri' tempted to add separate judgment ~nly in view of the in_teresting questions raised and the historical background in which they arise.

OJHA, .). These two appeals by special leave have been preferred against the judgment dated 8th October, 1982 of the High Court of Kerala in · A.S. No. 210 of 1979. Appellant in Civil Appeal No. 534 of 1983 instituted Original Suit No. 253 of 1976 against the since deceased respondent No. I ·(who shall hereinafter for the sake of convenience be ·referred to as the appellant and respondent No. 1 respectively) for partition and rendition of accounts jn the court of Subordinate Judge, Trivandrum. Respond~nt No. l till the integration of the Stales of Travancore and Cochin on 1st July, 194.9 was the Ruler of the erstwhile State of Travancore and thereafter until the formation of the State of Kerala on 1st November, 1956 he was the Rajapramukh of the State of Travancore7Cochin. The suit was !nstitutec.I by the appellant on the assertion that defendants 1 to 34 (respondent No: 1 being the defendant No. 1 in the suit) were members of the Travancore Royal Family. This family according to the appellant was an undivided marumakkathayam lfll'Wad gov-.emed by Marilmakkathayam La·w as modified by custom and usage in respect of succession, inheritance and some other matters and that respondan(No. 1 had been managing the properties of the tarwad in his capacity as its karnavan. According to him the properties in suit being tarwad properties.were lia.ble to be partitioned among the appellant and defendants 1 ·to 34 on per capita basis and the appellant was entitled to 1/35 share. Some of the properties had been alienated by respondent No. 1 but •he appellant in place of challenging such alienations preferred to seek relief for accounting with regard to the proceeds of the alienations and for division of those proceeds among the members ofthe tarwad. He also prayed for decree with regard to his sh.are in the income.of the tarwad properties which according to him were received by respondent No. 1 as karnavan. Some of the landed proRerties had b~n the subject-matter; of the ceiling proceedings. under. the Kerala Land Reforms Act, 1963. In those proceedings accepting the properties to be of respondent No. I th~ "(<erala Land Board, Travancore by its order dated 15th February, 1972 declared e?'cess hinds liable to be surrendered to the Government. Against.the aforesaid order the appellant filed revision before the High Court which was dismissed on the ground of being belated. Thereupon the appellant made an application tinder Sectio.n 85(9) of the Land Reforms Act before the Land Board for setting as.ide its order dated 15th February, 1972 aforesaid. This petition was rejected by the Board on 7th August, 1978 and possession over the land d~lared io be excess was resumed by the Government. Against the order rejecting his application under Section 85(9) the appellant filed revision before the High Court which was disposed of on l lth September, i 979 reserving.libeity to the appellant to move for relief under Section 85(9) on the basis of the decision in A.S. No. 210 of 1979 as and when it was given. As noticed earlierAS.,No. 210of1979 was decided by the Higli Court. on 8th October, 1982 by the judgn:ient under appeal. The case o(.the appellant even with' regard to the properties which.were the

subject-matter of the ceiling proceedings was that since they were tarwad properties they were to be treated as belonging to different families which constituted independent units in the tarwad ~d on that basis the cirwad was entitled to retain much larger area than the area which respondent No. I was found entitled to retain in the basis that these properties belonged to hi~.

Respondent No. contested the suit and filecj written stateme~t. Even though it was not 'disputed that the appellant and defendants I to 34 were members of family it was denied that they were me:nbers of an undivided marumakkathayam tarwad and that respondent No. I was the karnavan thereof. 0His case was that defendants 3 and 12 who were the two senior female members in the family and were junior and senior Maharanis 01 Travancore respectively along with thei! descendants formed tarwad known as Sreepa-dom (the tarwad set up by the appellant in his plaint was; ~ccording to him, known as Valiakottaram). The case of respondent No. 1 further was that this Sreepadom tarwad known as· the Royal Family of Travancore had its own properties which were divided per stirpes on 13th July, 197,1 in two equal halves between the branch of defendant No. 3 on the one hand and of defendant No. 12 on the other. It was also asserted that the branch of defendant No. 12 made further. partition in which the appellant who was member of that branch was given an individual share. According to Respondent No. I.after the partition of the pi:operties of Sreepadom oil 13th 'July, 1971 there ceased to be any un.diylded ta'rwad. He asserted that the properties in suit belonged to him absolutely who before the integration of the States of Travancore .and Cochin was the sovereign Ruler of Travancore and in that capacity ·held all the properties including the properties in suit, there being no distinction at that time between the propei:ties of the Ruler and that of the Government. Th~ pr9perties in suit which according to respondent No. I were held by him ,aS sovereign as his own were retained by him for himself absoluteiy when he surrendered 'the sovereigtttY of th.e State. Respondent No. I further asserted that he was competent to deal with these properties in any manner as he liked and his action in this behalf was beyond challenge. Subsequently, an additional written statcn:ient was also filed by respondent No. 1 wherein it was inter alia pleaded that the suit itself WaS not maintainable inasmuch as the Royal Family- of Travancore even though governed-by the Marumakkathayam Law a; modified by custom and usage was not governed by any Statute and no member could ask for compulsory partition of the properties of family governed by Marumakkathayarri Lmy. Another written statement was filed by defendant No. 3 who was the mother of respondent No. 1 wherein pleas identical to those raised by respondent No. 1 were taken. Defendant No. 12 also filed written st~1tement wherein inter alia she claimed absolute right over item No. 10 of Schedule to the plaint on the' basis of grant by His High~css the Late

Sreemoolam Thirunal who was at the time of the grant the Ruler of the erstwhile Travancore State. Some of the defendants who were the descendants of defendant No. 12 also filed written statements,_supporting the claim of the appellant except with regard to item No. 10 aforesaid which e.ven according to them belonged absolutely to defendant No. 12. written statement was filed also by defendants 32, 33 and 34 supporting the case of the appellant with the exception that defendant No. 32 took further plea that she having married on 14th May, 1952 under the Special Marriage Act, 1872 became divided in status from the rest of the members of the tarwad and was consequently entitled. to I/6th share in all the property of the tarwad as at the time of her marriage there were only six members in that tarwad. The guardian of defendants 6, 7 and 10 · who were minors also filed· a· written statement supporting the case of respondent No. 1. The State of Kerala which had been impleaded in the suit as defendant No. 35,.in its written statement supported the order passed by the Kerala Land Board in·the ceiling proceedings.

The trial court framed necessary issues arising out of the pleadings of the parties and after giving them an opportunity of producing evidence both oral and documentary in support of their respective pleas dismissed the suit It specifically held that the appellant and defendants 1 to 34 did not belong to an undivided marumakkathayarn tarwad and that respondent No. 1 was not klITT!avan of any such tarwad nor were the properties in suit tarwad properties as claimed by the appellant. It also repelled the claim of defendant No. 12 that item 10 of Schedule to the plai'nt was her absolute property.

Aggrieved by the decree of the trial court the appellant preferred A.S. No. 210 of 1979 in the High Court whereas two cross-objections were filed, one by defendant No. 12 and the other by defendant Nos. 32 to 34. The appeal as well as the cross objections were dismissed by the High Court. Against this decree of the High Court the appellant has preferred Civil Appeal No. 534 of . 1983 whereas defendant Nos. 32 to 34 have preferred Civil Appeal No. 535 of .1983. Yet another Civil Appeal being Civil Appeal No. 536 of 1983 was preferred by defendant No. 12. Since, however, defendant No. 12 died during the pendency of that Civil Appeal and no.consequential steps were taken, the said appeal by order dated 16th August, 1991 passed by this Court was abated.

Since it has not been seriously challenged before us that respondent No. I was sovereign ruler ofTravancore till 1st July, 1949 we find it unnecessary to dwell upon the question as to how sovereignty came to be vested in the rulers of Travancore. As. was agreed by the partie.s before the High Court as also before us the crucial question for determination is about the title of the appellant over the properties in suit. In other words, in the context of the

pleadings of the parties the question which falls for consideration is whether the family of the appellant and defendants 1 to 34 was an undivided Mar-umakkathayam tarwad known as Valiakottaram governed by Marumakkathayam Law as modified by custom and usage in respect of succession, inheritance and some other matters and the properties in suit belonged to this Tarwad and respondent No. 1 had been managing the same as its Kamavan as alleged by the appellant or whether these properties were held by respondent No. 1, as asserted by him, as his personal properties carved out by him as such in his capacity as the sovereign ruler of Travancore and were reiained by him as his personal properties even after he surrendered his sovereignty as indicated in the inventory furnished to the Government of India in pursuance of the covenant dated 27th May, 1949 (Ex. A2) and accepted by the Government of India vide Ex. A3.Before adverting to this question, we find it appropriate at this stage to deal with legal plea raised by learned counsel for the appellant about the nature and extent of authority of respondent No. 1 over the properties in suit in his capacity as the sovereign ruler of Travancore. According to learned counsel for the appellant since the properties in suit belonged to Tarwad and respondent No. l was managing them as Ka:rnavan, as asserted by the appellant, the mere fact that he was also the sovereign ruler of Travancore was of little significance. He also urged that since respondent No. 1 was not only Karnavan of Tarwad but also the sovereign ruler of Travancore, the properties in suit were made impartible in order to maintain his status but after he ceased to be ruler . of. Travancore, these properties even though were impartible earlier became partible. Reliance was placed in this behalf on certain statutory provisions including the Hindu Succession Act to which reference shall be made later. He also placed reliance on certain decisions dealing with the .nature and legal incidents of an impartible estate. We propose to consider these decisions first to clear the legal ground based thereon.

The first decision to which reference :was made by learned counsel for the appellant is the Privy Council decision in the case of Baijnath Prasad Singh and others v. Te} Bali Singh, AIR 1921 Privy Council Page 62. In this case it was reiterated that when custom is found to exist it supersedes the general law which however still regulates all beyond the custom. It was also held that the Zamindari which was in dispute in that case being the ancestral property of joint family though impartible the successor fell to be designated according to ordinary rule of Mitakshralaw and that the respondent in that case being the person who in joint family would, being the eldest of the senior branch, be the head of the family was the person designated in this impartibleraj to occupy the Gaddi. In so far as the proposition that when custom is found to exist it

supersedes the general law which, however, still regulates all beyond the custom is concerned no exception can be taken to it. In regard to the other proposition it may be pointed out that the dispute in that case was about the succession to the Zamindari of Agori Barhar as is apparent from the very first sentence of the judgment even though the ancestors of the parties were referred · to as Rajahs. It was apparently not case of sovereign ruler. The other cases on which reliance was placed in this behalf are these :

In Shiba Prasad Singh v. Rani Prayag Kumari Debi and others, AIR 1932 P.C. page 216 it was held:

"Impartibility is essentially creature of custom. In the case of ordinary joint family property, the members of thefamily have : (1) the right of partition : (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of mainte-nance; and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second is incompatible with the custom of impartibility as laid down in ......... To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the. incidents of self acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right therefore still remains, and this is what was held in Baijnath' s case (A.LR. 1921P.C.62). To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such prop-erty. Though the other rights which co-parcener acquires by birth in joint family property no longer exist, the birthright of the senior member to take by survivorship still remains. Nor is this right mere spes succession is similar to that ofa reversioner succeeding on the death of Hindu widow to her husband's estate It is right which is capable of being renounced and surrendered. Such being their Lordships' view, it follows that in order to establish that family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate. It is not sufficient to show separation merely in food and worship. Admittedly there is no evidence in this case of any such intention. The plaintiffs therefore have failed to prove separation, and the defendant is entitled to succeed to the impartible estate. Being

entitled to the estate, he is also entitled to.the improvements on the estate, being the immovable properties specified in items 9 to of Sch. kha. These improvements, in fact, form part of the impartible estate."

The question in that case related to the right of succession to an estate and other properties left by Raja Durga Prasad. This case too does not appear to be case of sovereign ruler as is apparent from the recital of facts inter alia to the effect that on 27th August, 1915 Raja Durga Prasad, made will whereby he purported to dispose of some of the properties in dispute and that the will was governed by the Hindu Wills Act, 1870 and several sections of the Indian Succession Act, 1865, were thereby made applicable to wills governed by that Act. Had it been case of sovereign ruler neither of these Acts would have been applicable to him.

In Commissioner of Income-tax, Punjab, North-West Frontie"r and Delhi Provinces, Lahore v. Dewan Bahadur Dewan Krishna Kishote, Rais, Lahore AIR 1941 P.C. page 120, it was held that holder of an impartible estate receiving income from house property was not owner of the property and such income, therefore, was not assessable under section 9 of the Income Tax Act, 1922 and further that income from impartible estate of holder of such estate was income of individual and not income of undivided family of himself and his sons for purposes of the said Income-tax Act. This again was apparently not case of sovereign ruler inasmuch . as such ruler could not have been governed by the Income-tax Act, 1922.In Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur and Ors. v. Shri Pushavathi Visweswar Gajapathi Raj & Ors., [1964] 2 SCR 403, it was held that an ancestral estate to which the holder has succeeded by the custom of primogeniture is part of the joint estate of the undivided Hindu family. Though the other rights enjoyed by member of joint Hindu family are inconsistant in the case of an impartiblc estate the right of survivorship still exists. Unless the power is excluded by statute or custom, the holder of customary impartible estate, by declaration of his intention, can incorporate with the estate his self-acquired immovable property and there upon the said property accrues to the estate and is impressed with all its incidents including custom of descent by primogeniture. In all such cases the crucial test is one of intention. holder of an impartiblc estate can alienate the estate by gift inter vivos, or even by will, though the family is undivided; the only limitation on this power could be by family custom to the contrary or the conditions of the tenure which have the same ·effect.

In Nagesh Bisto Desai etc. etc. v. Khando Tirmal Desai etc. etc., [1982) 3 SCR 341, it was held:

"It is trite proposition that property though impartible may be the ancestral property of the joint Hindu family. The impartibility of property does not per se destroy its nature as joint family property or render it the separate property of the last holder, so as to destroy the right of survivorship; hence the estate retains its character of joint family property and devolves by the general law upon that person who being in fact and in law joint in respect of the estate is also the senior member in the senior line."

It was further held that since the decision of the Privy Council in Shiba Prasad Singh' s case (supra), it is well settled that the fact that an estate is impartiblc does not make it the separate and 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 decision in this case has been reaffirmed in Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil and Others, (1989) (Supp.) 1 SCC page 246.

In Anant Kibe and Others v. Purushottam Rao and Others, 1984 (Supp.) SCC 175, it was held that the junior members of the joint family in the case of ancient impartible joint family estate take no right in the property by birth and, therefore, have no right of partition having regard to the very nature of the estate that is impartible. The only incidence for joint property which still attaches to ihe joint family property is the right of survivorship which, of course, is not inconsistent with the custom of impartibility. Referring to the facts of the case it was pointed out in paragraph 8 of the Report that there was ample evidence on record to show that the inam lands although impartible were always treated by members of the family as part of the joint family properties and the succession to the inam was by the rule of survivorship as modified by the rule of lineal primogeniture. It was also clear that the junior members were in joint enjoyment of the inam lands and the evidence showed that the properties acquired by the inamdar for the time being from out of the income of the inam such as the two houses at Indore and other properties were always dealt with as part of the joint family property.

In Thakore Shri Vinayasinhji (Dead) by Lrs. v. Kumar Shri Natwarinhji and Others, [1988) (Supp) SCC 133, the decision of the Privy Council in the case of Shiba Prasad Singh (supra) was referred to with approval.

In Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo and Others, [1982) 1SCR417 also the decision of the Privy Council in the case of Shiba Prasad Singh (supra) was referred to with approval. It was further held in this case relying on Chinnathayi alias Veeralakshmi v. Kulasekara Pandiya Naicker & Anr., [1952) SCR 251, that to establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention, express or implied, on the part of !he junior members of the family to give up their chance of succeeding to the estate.

So far as these decisions are concerned, apart from the fact that in the instant case the respondent No. 1 was holding the properties in dispute as sovereign ruler and his right over these properties will have to be considered in this background, what has been held in the aforesaid caseS)Tiay be of some assistance if it is found as fact that the fan1ily of the appellant and defendants 1 to 34 was an undivided Marumakkathayam tarwad known as Valiakottaram governed by Marumakkathayam Law as modified by custom and usage in respect of succession, inheritance and some other matters and the properties in suit belonged to L'1is Tarwad and respondent No. 1 had been managing the same as its Karnavan as alleged by the appellant. On the other hand if it is found that these properties were personal properties of respo:ldent No. 1 in the manner alleged by him, these decisions will be of no assistance. The fate of this appeal really, therefore, depends on the decision of the question referred to above with regard to the nature of the property.

The decision on the said question one way or the other would have bearing on the other submission made by learned counsel for the appellant that the impirrtible nature of the property in suit came to an end on the commence-ment of the Hindu Succession Act, 1956 and at all events on the commence-ment of the Kera!a Joint Hindu Family System (Abolition) Act, 1975. As regards the Hindu Succession Act, 1956 reliance was placed on Section 4 and sub-section (1) of Section 7. It was urged that Respondent No. 1 having since died, the properties in suit in view of sub-section (1) of Section 7 and the oveITiding effect of Section 4 "shall devolve by testamentary succession as the case may be, under this Act and not according to the Marumakkathayam or Nambudri Law" as contemplated by sub-section (1) of Section 7 read with the Explanation thereto which reads as hereunder :-

"7. Devolution of interest in the property of tarwad, tavazhi, kutumba, kavaru or illom :- (1) When Hindu to whom the marumakkattayam or nambudri law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an interest in the property of

tarwad, tavazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succes-sion, as the case may be, under this Act and not according to the marumakkattayam or nambudri law.

Explanation :- For the purposes of this sub-section, the interest of Hindu in the property of tarwad, tavazhi or illom shall be deemed to be the share in the property of the tarwad, tavazhi or illom, as the case may be, that would have fallen to him or her if partition of that property per capita had been made immediately before his or her death among all the members of the tarwad, tavazhi or illom, as the case may be, then living, whether he or she was entitled to claim such partition or not under the marumakkat-tayairl or nambudri law applicable to him or her, and such share shall be deemed to have been allotted to him or her absolutely.

(2) ...

·In so far as the Kerala Joint Hindu Family System (Abolition) Act, 1975 is concerned reliance has been placed on Section 4 which contemplates re-placement of joint tenancy by tenancy in common. Sub-section (1) applies to members of an undivided Hindu family governed by Mitakshara Law holding common coparcenary property on the day the said Act came into force. Sub-section (2) on the other hand applies to members of joint Hindu family, other than undivided Hindu family referred to in sub-section (1). Since reliance has been placed on this sub-section it is reproduced hereunder :-

"4. Joint tenancy to }?e replaced by tenancy .in common :-

(2) All members of joint Hindu family, other than an undivided Hindu family referred to in sub-section (1), holding any joint family property on the day this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-common, as if partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members wcruntitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof."

perusal of the provisions in the two Acts referred to above makes it clear that sub-section (1) of Section 7 of the Hindu Succession Act, 1956 would apply only if the properties in suit were "property of tarwad, tavazhi or ill om, as the case may be," and Resnondent No. 1 had, at the time of his death, "interest" therein. Sub-section (2) of Section 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 on the other hand would apply to the members of the joint Hindu family concerned "holding any joint family property on the day this Act comes into force." On plain reading of the sub-sections referred to above it is apparent that neither of them would apply if the properties in suit did not fall under the categories referred to therein but were at the relevant time the personal properties of Respondent No. 1. It is for this reason that the applicability of these two Acts would depend as indicated earlier on the finding of the crucial question in regard to the nature of the properties in suit

Before adverting to the question referred to above we consider it appropriate to deal with another submission made by learned counsel for the appellant that the properties in suit constituted "Sthanam" and Respondent No. I was Sthani thereof and consequently the provisions of sub-section (3) of Section 7 of the Hindu Succession Act, 1956 would be applicable to the properties in suit This plea was raised before the High Court also and was repelled inter alia by holding :-

"Before we look into the law on this subject we have to consider whether there is any foundation for such case in the pleadings of the parties. We found in the pleadings no reference to the office of the Ruler being that of Stani. Stanom is peculiar institution familiar in the northern part of the Kerala State, namely, Malabar and is not well-known institution in Travancore. The institution of Stanom has peculiar incidents. Merely because person is an eldest member of the family he does not become Stani. We are mentioning this only to emphasise our point that if it is case based upon stanom that the court is now called upon to consider that must necessarily have been matter of pleadings. There is no such pleading in the case."

While referring to the observations of Lord Dunedin in Siddik M ahomed Shah v. Mt. Saran, A.LR. 1930 P.C. 57 that "no amount of evidence can be looked into upon plea which was never put forward", it was held by this Court inNagubaiAmmal and others v.B. ShamaRaoandOthers, AIR 1956 SC Page 593 :-. .

"The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to case where parties go to trial with knowledge that particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto."

The same view was reiterated in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira and Others, AIR 1959 SC Page 31.

Nothing on the record has been brought to our notice by learned counsel for the appellant that Respondent No. 1 went to trial with knowledge that the question of there being Sthanam and he being Sthani thereof was in issue and that any evidence on the basis of such knowledge was produced on his behalf. Consequently the use of the word "Sthanam" in Exhibits A-3 and B-9 on whic~ reliance was sought to be placed before u/by learned counsel for the appellant cannot be made the foundation for decision of the question about the existence of Sthanam and Respondent No. 1 being Sthani thereof.

It was, however, urged by learned counsel for the appellant that whether or not there was Sthanam is pure question of law and consequently even in the absence of any pleading or issue on the point the question·can still be raised. We find it difficult to agree with this submission. The Treatise on Malabar & Aliyasamhana Law (1922 Edition) by P.R. Sundara Aiyar which is standard book on the subject has been relied on even by learned counsel for the appellant with regard to the origin and nature of Sthanam. In the said book itself, however, it is specifically stated in paragraph 154 at page 256 :-

"The question whether there is stanom in any particular case must be decided. upon the evidence of usage adduced, and the onus is of course upon those who assert that any particular property belongs to an individual and not to the family to which the individual belongs. It is not sufficient to make stanom that properties are temporarily allotted to person filling particular position; the evidence must be sufficient to prove long continued usage recognising the property in question as belonging to the person filling particular position without any interest iri the members of the family to which the person holding the position belongs and without any power in them to term.inate the arrangement. Is it open to family' to constitute fresh stanom? The answer would

,,...._

probably be the same as to the question whether it is open to the members of family governed by the Mitakshara Law to constitute certain property impartible and vest it in single individual with succession according to the rule of primogeniture. In both cases the answer must be in the negative. Impartible estates and stanoms are recognisable only on the ground of custom. They are held not according to the rules of the commo11 law of the land but in manner different from such rules but sanctioned by usage."

In this view of the matter in the absence of any pleading or issue on the point the appellant cannot be permitted to raise this question on the footing that it was pure question of law. There is yet another ground which disentitles the appellant from raising this plea. In his grounds of appeal before the High Court the appellant had taken specific ground being ground no. 29 to the following effect:

''The court below should have found that Ex. A3 has not created sthanam in respect of the plaint schedule properties and the court below also failed to note that the 1st defendant has no case that he ·is sthani and that the plaint schedule properties are sthanam properties. The decision in 1960 K.L.T. S.C. 3.1 quoted by the court below should have been found not applicable to the facts of the case."

This being his categorical stand before the High Court, he cannot now be permitted to take somersault. On this view, we find it unnecessary to deal with certain cases relied on by learned counsel for the appellant to indicate the nature and incidence of the properties of a· Sthanam and the rights of Sthani therein. ·

At this stage another plea raised by learned counsel for the appellant with regard to the burden of proof may also be disposed of. Relying on the decision of the Privy Council in Martand Rao v. MalharRao, AIR 1928 Privy Council Page 10 it was urged that when there is dispute with respect to an estate being impartible or otherwise, the onus lises on the party who alleges the existence of custom different from the ordinary law of inheritance according to which custom the estate is to be held by single member and, as such, was not liable 'to partition. For Respond811t No. 1 on the other hand it has been urged that it not having been disputed that, at any rate till Respondent No. 1 was the sovereign Ruler of Travancore, the properties in suit were impartible and descendible to single person the burden to prove that those properties were joint family properties and thus partiblc was on the appellant, he bejng the

plaintiff so as to be able to obtain decree in his favour. Suffice it to say, so far as the question of burden of proof is concerned, that it has been held in Moran Mar Basselios Catholicos (supra) that the "question of burden of proof at the end of the case when both parties have adduced evidence .is not of very great importance and the Court has to come to decision on the consideration of all materials." This view has been reiterated in Narayan Bhagwantarao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others, AIR 1960 S.C. Page 100 and several other subsequent decisions and is by now settled law.

Now we may consider the legal effect of respondent No. 1 being sovereign ruler of Travancore till he surrendered the sovereignty as indicated earlier. In Ammer-un-Nissa Begum and others v. Mahboob Begum and Others, AIR 1955 S.C. 352 dealing with the efficacy of certain 'Firmans' issued by the Nizam of Hyderabad who was sovereign ruler, it wa5, with regard to the powers of the Nizam, held:-

"It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, Nizam of Hyderabad en joyed uncontrolled sovereign powers. He was the supreme legislature, the supreme judiciary and the supreme head to the executive, and there was no constitutional limitation upon his authority to act in any of these capacities. The 'Firmans' were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; - nay, they would override all other laws which were in conflict with them. So long as particular 'Firman' held the field, that alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by later 'Firman' at any time that the Nizam willed ........ .

The Nizam was not only the supreme legislature, he was the fountain of justice as well. When he constituted new Court, he could, according to ordinary notions, be deemed to have exercised his legislative authority. When again he affirmed or reversed judicial decision, that may appropriately be described as judicial act. rigid lirie of demarcation, however, between th.e one and the other would from the very nature of things be not justified or even possible."

The same view was reiterated in Director of Endowments, Government of Hyderabad and others v.AkramA/i, AIR 1956 S.C. 60 wherein it was held:

"Now th.e Nizam was an absolute sovereign regarding all domestic matters at that time and his word was law. It does not matter whether this be called legislation or an executive act or judicial determination because there is in fact no clear cut dividing line between the various functions of an absolute ruler whose will is law. Whatever he proclaimed through his Firmans had the com-bined effect of law and the decree of Court: see the judgment of this Courtin-'AmeerunissaBegum v. MahboobBegum', AIR 1955 SC 352 (A).

Thtrefore, the effect of this Firman was to deprive the respondent and all other claimants of all rights to possession "pending enquiry of the case". Exactly what this means is not clear but, taken in conjunction with the surrounding circumstances and with the decision of the Director of the Ecclesiastical Department to wbich we have referred, it is fair to assume that it means, pending the enquiry by the civil Courts about which the Director had twice spoken, that is to say, if there was right to possession it was held in abeyance till established by the civil Courts .

Now, as we have said, the Nizam was at that time an absolute ruler and could do what he pleased. His will, as expressed in his Firman, was the law of the land. Therefore, even if it be assumed that the respondent was in possession, whatever they may have been, were taken away and held in abeyance till he could establish them in the civil Courts.

The question now arises whether this enured after the Constitution and whether the respondent's right to possession, assuming he had any, revived when the Constitution came into being. We are clear that the Constitution effected no change.

It was conceded that the Nizam had power to confiscate the property and to take it away from the respondent 'in toto' and it was conceded that if he had done so the rights so destroyed would not have revived because the Constitution only guarantees to citizen such rights as he had at the date it came into force; it does not alter them or add to them : all it guarantees is that he shall not be deprived of such rights as he has except in such ways as the Constitution allows. But if the Nizam could take away every vestige of right by Firman he could equally take awa1 part of them and at the date of the passing of the Constitution the

respondent would only have the balance of the rights left to him and not the whole, for what applies to the whole applies equally to the part.

Therefore, even if we accept all the respondent's facts, the position would still be that at the date the Constitution ca~e into force he had no right to immediate possession; the utmost he had was right to be restored to possession if and when he established his rights in Court of law."

In MadhaoraoPhalkev. The State of Madhya Bharat, [1961) 1SCR957, while dealing with the powers of Sir Madhavrao, who was sovereign ruler of the State of Gwalior, it was held :-·

"It would thus be seen that though Sir Madhavrao was gradually taking steps to associate the public with the government of the State and with that object he was establishing institutions consis-tent with the democratic form of ruJe, he had maintained all his powers as sovereign with himself and had not delegated any of his powers in favour of any of the said bodies. In other words, despite the creation of these bodies the Maharaja continued to be an absolute monarch in whom were vested the supreme power of the legislature, the executive and the judiciary.

In dealing with the question as to whether the orders issued by such an absolute monarch amount to law or regulation having the force of law, or whether they constitute merely administrative orders, it is important to bear in mind that the distinction between exr..cutive orders and legislative commands is likely to be merely academic where the Ruler is the source of all power. There was no constitutional limitation upon the authority of the Ruler to act in any capacity he liked; he would be the supreme legislature, the supreme judiciary and the supreme head of the executive, and all his orders, however issued, would have the force of law and would govern and regulate the affairs of the State including the rights of itc; citizens. Jn Ameer-un-Nissa Begum v. Mahboob Begum, AIR 1955 S.C. 352, this Court had to deal with the effect of Finnan issued by the Nizam, and it observed that so long as Lhe particu)ar Firman issued by the Nizam held the field that alone would govern and regulate the rights of the parties concerned though it would be annulled or modified by later Firman at any time that the Nizam willed. What was held about the Finnan issued by the Nizam

would be equally true about all effective orders issued by the Ruler of Gwalior."

While dealing with Firman issued by the Maharana ofUdaipur who too was sovereign ruler, it was held in Tilkoyat Shri Govindlalji Maharaj v. The State of Rajasthan and Others, (1964] 1 SCR 561 as follows:

"In appreciating the effect of this Firman, it is first necessary to decide whether the Firman is law or not It is matter of common knowledge that at the relevant time the Maharana of Udaipur was an absolute monarch in ~horn vested all the legislative, judicial and executive powers of the State. In the case of an absolute Ruler like the Maharana ofUdaipur, it is difficult ~o make any distinction between an executive order issued by him or legislative com-mand issued by him. Any order issued by such Ruler has the force of law and did govern the rights of the parties affected thereby."

In Civil Appeal No. 242of1955 Mangat Singh and others v. The Legal Remembrance, Punjab and others decided by this Court on 23rd February, 1960 plea questioning the validity of certain orders passed by the Maharaja of Patiala with regard to Gurdwara had been raised. ·An issue about the jurisdiction of the Civil Court to adjudicate upon the said plea was framed. While dealing with the plea Constitution Bench after referring m certain earlier decisions of this Court held :

"It cannot be, and has not been, disputed that the position of the Maharaja of Patiala before the coming into force of the Constitu-tion was the same as that, for example, of the Maharaja of Jammu and Kashmir, or the Maharao of Kotah, or the Nizam of Hydera-bad. He would therefore be in view of the cases cited above, an absolute sovereign so far as the internal administration of the State is concerned. Under the circumstances, the order Ex. DA of April 2, 1945, be it called judicial or executive, which expressed his will with respect to this Gurdwara and the land in dispute and the management of the Gurdwara and the land belonging to it would be binding on all authorities within his State, and it would not be open to any court to question that will. In this view of the matter the High Court was in our opinion right in holding that the jurisdiction of the civil court was barred as the sovereign had expressed his will that the land in dispute belonged to the Gurd-wara and should be managed by committee which would be in-charge of the Gurdwara."

In another decision of this Court in Civil No. 226 of 1965 Mahant Hardial Singh v. Ajmer Sin!Jh and Others decided on November 20, 1968 with regard to the powers of Maharaja of Patiala this Court held :

"We think that this appeal must fail on the short ground that the sale in favour of Seth Banarsi Das cannot be impugned in view of the orders made by His Highness the Maharaja of Patiala. It must be remembered that at the time the transaction took place, Patiala was native State and the Maharaja enjoyed uncontrolled sover-eign powers. At that time· he was the supreme legislature, the supreme judiciary and the supreme head of the executive. There was no constitutional limitation on his authority to act in any of the capacities .. His orders were expressions of the sovereign will and they were binding in the same way as any other law, nay, they would override all other laws which were in conflict with them. So long as his order held the field that alone would govern or regulate the rights of the parties concerned though it could have been annulled or modified by him at any time he willed."

In D.S. MeramwalaBhayala v.Ba ShriAmarbalethsurbhai, [1968] ILR 9 Gujarat Page 966 it was held :

"There is, therefore,. no doubt that the Khari-Bagasara Estate was sovereign Estate and the Chief of the Khari-Bagasara Estate for the time being was sovereign Ruler within his own territories subject to the pararnountcy of the British Crown prior to 15th August 1947 and completely independent after that date.

If the Khari-Bagasara Estate was sovereign Estate, it is difficult to sec how the ordinary incidents of ancestral co-parcenary prop-erty could be applied to that Estate. The characteristic feature of the ancestral co-parcenary property is that members of the family acquire an interest in the property by· birth or adoption and by virtue of such interest they can claim four rights : (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 survivorship. It is obvious from the nature of sovereign Estate that there can be no interest by birth or adoption in such Estate and .these rights which are the necessary conse-quence of community of interest cannot exist. The Chief of sovereign Estate would hold the Estate by virtue of his sovereign power and not by virtue of muinicipal 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 limitations on his powers in relation to the Estate. As sovereign ruler he would be the full and complete owner of the Estate entitled to do what he likes with the EState. During his lifetime 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 consequence arising under the municipal law would be to make the Chief who is the sovereign Ruler of the Estate subject to the municipal law. Besides, if the sons acquire an interest in the Estate by birth or adoption, they would be entitled to claim the rights enumerated above but these rights cannot exist in sovereign Estate. None of these rights can be enforced again~t the Chief by remedy in the rpunicipal Courts. The Chief being the sovereign Ruler, there can. be no legal sanction for enforcement of these rights. The remedy for enforcement of these rights would not be remedy at law but resort would have to be taken to force for the Chief as the sovereign Ruler would not be subject to municipal law and his actions would not be controlled by the municipal Courts. Now it is impossible to conceive of legal right which has no legal remedy. If claim is not legally enforceable, it would not constitute legal right and, therefore, by the very nature of sovereign Estate, the sons cannot have these rights and if these rights cannot exist in the sons, it must follow as necessary corollary that the sons do not acquire an interest in the Estate by birth or adoption ...

. . . Now it was not disputed on behalf of Meramvala that if prior to merger the Estate did not partake of the character of ancestral coparcenary property, the properties left with Bhayawala under the merger agreement would not be ancestral coparcenary properties : if Meramvala did not have any interest in the Estate prior to merger, he would have no interest in the properties which remained with Bhayavala under the merger agreement. It was not the case of Meramvala-and it could not be the case since the merger agree-ment would be an act of State-that as result of the merger agreement any interest was acquired by him in the properties held by Bhayavala. Bhayavala was, therefore, the full owner of the properties held by him and was competent to dispose of the same by will ........... : ......... .

... The argument of Mr. L M. Nanavati however was that the effect of applicability of the rule of primogeniture by the paramount power was that the rights of coparceners under the ordinary Hindu law were eclipsed : these rights were not destroyed but they remained dormant and on the lapse of paramountcy, the shadow of the eclipse being removed, the rights sprang into full force and effect. This argument is wholly unsustainable on principle ........ . ,,

· It has been brought to our notice by learned counsel for Respondent No. 1 that Civil Appeal Nos. 1358-1359of1969 were filed in this Court against the aforesaid judgment of the Gujarat High Court which were initially dismissed on 29th March, 1974 with certain observations. Subsequently, two Review Petitions bearing Nos. 45-46 of 1974 were filed which were disposed of on 17th March, 1976 by the following order:

"The order dated 29-3-1974 in C.A. No. 1358-59/69 is recalled and the following order is passed by consent of parties :

Both the C. As. 1358-59/69 had abated when they were heard. They are therefore dismissed. There will be no order as to costs."

Against judgment of the then Sup· !me Court of Bombay an appeal was taken up before the Privy Council and the judgment of the Privy Council was reported in Elphinstone v. Bedreechund, 12 English Reports Page 340. In the foot note of that judgment at page 345 while dealing with the question as to whether there was any distinction between the public and private property of Peishwa Bajee Row, the following passage occurs :

"The Privy Council reversed the judgment of the Court at Bombay. In the course of the argument Lord Tenterden asked, "What is the distinction between the public and private property of an absolute sovereign? You mean by public property, generally speaking, the property of the state, but in the property of an absoiute sovereign, who may dispose of every thing at any time, and in any way he pleases, is there any distinction?" and in delivering the judgment I of their Lordships he al~o observed, "another point made, which applies itself only to part of the information, is, that the property was not proved to have been the public property of the Peishwa. Upon that point I have already intimated my opinion, and I have< the concurrence of the other Lords of the Council with nie in it, tliat when you are speaking of the property of an absolute sovereign

there is no pretence for drawing distinction, the whole of it belongs to him ~s sovereign, and he may dispose of it for his public or private purposes in whatever manner he may think proper."

In Halsbury' s Laws of England, Fourth Edition, Volume 8, under the caption "The Title to the Crown" paragraphs 851, 897 and 1076 have, in our opinion, bearing on the question raised in the instant case with regard to the powers of sovereign. In paragraph 851 it has been pointed out that on the death of the reigning sovereign the crown vests immediately in the person who is entitled to succeed, it b~ing maxim of the common law that the King never dies. The new sovereign is, therefore, entitled to exercise full prerogative rights without further ceremony. In paragraph 897 on the other hand it has been pointed out that the sovereign is regarded legally as immortal, the maxim of law being that "the King never dies". Paragraph 1076 inter alia provides :

"Priority of Crown rights. Where the Crown's right and that of subject meet at one and· the same time, that of the Crown is in general preferred, ·the rule being "detur digniori".

Thus, the Crown cannot have joint property with any person in one entire chattel, or one which is not capable of division, and where the title of the Crown and subject concur, the Crown takes the whole. So if an indivisible chattel or debt are assigned to the Crown and subject, or where two persons have joint property in such chattel or debt and one person assigns his share to the Crown, or where bond is made to the Crown and subject, the Crown takes the whole, for it cannot be partner with subject; nor can the Crown become joint owner of chattel real by grant or contract, but takes the whole."

This being the law with regard to the powers of sovereign and the legal status of the properties held by him there can be no manner of doubt that till the sovereignty of the Maharaja of Travancore had ceased. he was entitled to treat and use the properties under his sovereignty in any manner he liked and his Will in this regard was supreme. On the principle that sovereign never dies and succession to the next ruler takes place without there being hiatus there . could be no change in the legal status of the properties held by one ruler and his successor. As seen above, one incidence of property held by sovereign was that there was really no distinction between the public or State properties on the one hand and private properties of the sovereign on the other. The other incidence was that no one could be co-owner with the sovereign in the properties held by him. As observed by Lord Tenterden referred to earlier when

[1991) SUPP. 3 S. C.R.

you are speaking of the property of an absolute sovereign there is no pretence of drawing distinction, the whole of it belongs to him as sovereign and he may dispose of it for his public or private purposes in whatever manner he may think proper.

That respondent No. 1 was sovereign and the properties in dispute as held by the sovereign rulers from time to time were impartible has not been disputed by the learned counsel for the appellant before us. What has been urged by him, however, is that the properties in dispute belonged to tarwad and were as such joint Hindu family properties and the attribµte of impartibili Ly applied to them because by custom only the eldest member of the family could be the ruler and to maintain his dignity and status it was necessary to make

these properties impartible.

In this connection it has to be kept in mind that the mode of succession of sovereign ruler and the powers of such ruler are two different concepts. Mode of succession regulates the process whereby one sovereign ruler is succeeded by the other. It may inte_r alia be governed by the rule of general primogeniture or lineal primogeniture or any other established rule governing succession. This process ends with one sovereign succeeding another. There-after what powers, privileges and prerogatives are to be exercised by the sovereign is question which is not relatable to the process of succession but relates to the legal incidents of sovereignty.

. Jf some one asserts that to particular property held by sovereign the legal incidents of sovereignty do not apply, it will have to be pleaded a.nd established by him that the said property was held by the sovereign not as sovereign but in some other capacity. In the instant case apart from asserting_ that the properties in suit belonged to joint family and Respondent No. 1 even though sovereign ruler, held them as the head of the family to which the property belonged, the appellant has neither specifically pleaded nor produced any convincing evidence in support of such an assertion. It has been urged on behalf of the appellant that only the eldest male off-spring of the Attingal Ranis could, b)t custom, be the ruler and all the heirs of the Ranis who. constituted joint Hindu family would be entitled to share in the properties of the Ranis and the properties in suit were held by Respondent No. 1 as head of the tarwad even though impartible in his hands. This plea has been repelled by the trial court as well as by the High Court and nothing convincing has been brought to our notice on the basi.s of which the presumption canvassed on behalf of the appellant could be drawn and the findings of the courts below reversed·. We are dealing wii.h an appeal and as has been pointed.out by this Court in Thakur Sukhpal Singh v. Thakur Kalyan Sirigh, [1963) 2 SCR 733 it is th~ duty of the appellant to show that .the judgment under appeal is erroneous.

The following extract from pages 190 to 192 of Kerala District Gazet-teers, Trivandrum by A. Sreedhara Menon will give glimpse about the nature of property held by the Attingal Ranis.

·~Early in his reign Marthanda Varma assumed direct control over the so-called Attingal 'Queendom'. This was not an act of aimexa-tion or conquest, but Nagam Aiya has described the event as "the. amalgamation of Tx:a vancore with Attingal". There has been some misunderstanding among contemporary and later writers in regard to the significance,ofthis step taken by Marthanda Varma. This is the result of general notion that Attingal was an independent state ruled by the Ranis and that the Kings of Travancore never exer-cised any authority in the tract Certain statements found in the memoirs, commeqtaries and state papers of the Portuguese, the Dutch and the English have only served to strengthen this notion. According to Van ·Rheede (1677) "the Princess of Attingal who is not alone the mother of Travancore but the eldest of Tippaporsore-wam has large territory of her own independent of Travancore". Hamilton even refers to regular treaty between Marthanda Varma and the Rani.by which the former strengthened the position of the King. He says that "the Tamburettis of Attingal possessed the sovereignty of Travancore from remote antiquity, until Raja Marthanda Varma persuaded the Tamburetty to resign the sover-eign authority to the Rajas, both for himself and for all succeeding Tamburetties. To perpetuate these conditions, regular treaty was executed between the Raja and the Tamburetty, which was in-scribed on silver plate, and ratified by the most solemn impreca-tions, limiting the succession to the offsprings of the Attingal Tamburetties. Having concluded this arrangement Raja Marthanda Varma directed his arms against the neighbouring states". The theory that the Ranis of Attingal exercised sovereign powers is, however, incorrect. The fact is that in political matters the Ranis of Attingal as such exercised no sovereign rights. Any grant of rights over immovable property by the Ranis of Attingal required the King's previous a'lsent or subsequent confirmation for its validity. It may be noted that the so-called Queendom of Attingal had its origin in the 5th century Kollam Era when two princesses were! adopted into the Venad family from Kolathunad and the revenues' from certain estates in and around Attingal were assigned to them for their exclusive use. Since then the female members of tlle ruling family of Travancor~ had corrie to be known as Attingal Ranis. It was only the male children of these Tamburatties, either

by birth or by adoption, who could inherit the throne. Thus Marthanda Vanna and the heir-apparent Rama Vanna were both sons of Attingal Tamburatties. This tended to invest the Attingal Ranis with special dignity in tbe eyes of the people, native as well as foreign, and led to the notion that they had sovereign rights over Attingal. But in reality the Kindgom of Venad extended from Kanyakumari in the south as far as Kannetti in the norlh, and there was no kingdom or principality intervening within its limits. When Marthanda Varma decided to assu-me direct control over the estates of Attingal and thus deprive the Rani of some of her rights, he was not interfering in the affairs of sovereign state. As the head of the royal family and the ruler of the State, he had every right to interfere in the affairs of part of his kindgom. The Rani of Attingal had neither territory nor subjects, except in the sense that the people of Venad paid respects to her as senior member of the ruling family. What she possessed was nothing more than the control over the revenues of the estates and an outward status and dignity. Whatever powers she exercised were those delegated to her by the head of the family and the sovereign of the state." 'The historical perspective referred to above runs counter to the case of· the appellant with regard to the rights of respondent No. 1 over the properties in suit even if it may be accepted that at some point of time they or any part of them were held by the Attingal Ran is before Marthanda Varma had assumed direct control as sovereign ruler of 'rravancore over the properties of Attingal Ranis. After the assumption of direct control by Marthanda Varma the properties held by the Ranis, whatsoever the extent and nature of such properties may have been earlier, became properties of the State of Travancore and the legal incidents of property held by sovereign as referred to above applied to-them also. There was no scope of such properties continuing to be joint family properties after such assumption of direct control. ·

The properties in suit having passed on from one sovereign to the other came to be ultimately held by Respondent No. 1 in.that capacity. Neither any principle nor authority nor even any grant etc. has been brought to our notice on the basis of which it could be held that in the properties of the State held by sovereign an interest was created or came into being in· favour of the family to which the sovereign belonged. ·

At this place reference may be rriade to the following finding of the High Court: ·

"No attempt has been made to adduce evidence directly bearing on the question as to how each one of the plaint schedule items are acquired. There is no pleading also as to the source of acquisition. There is no evidence not only as to how they were acquired, but even as to who acquired these items. Perhaps such evidence is not available and it is not possible to get at such evidence in the case."

We may here point out that such properties of th.e family to which the sovereign belonged as were allowed to retain their original character would of course fall in different category. According to Respondent.No. 1 there were such properties known as Sreepadam properties which fell in this category and in which the family members continued to have an interest. These Sreepadam properties according to him were only those which were partitioned in 1971 by the deed of partition executed in this behalf being Exhibit B-3 on the record of the suit. As regards the properties in suit what has been asserted on his behalf is that before he surrendered his sovereignty there was no distinction between the properties of the ruler and that of the St.ate and that before surrendering his sovereignty he had entered into covenant whereby he was given an option to furnish list of such properties which he wanted to retain as personal properties and that he having furnished such list which included the properties in suit and the same having been approved by the Government of India the properties in suit continued to be held by him as his personal properties in the capacity of being their absolute owner. We find substance in both these contentions ..

As regards Exhibit B-3 it would be seen that this deed of partition was executed by the then living members of the Royal Family. Even the appellant who was minor at that time was represented by his mother. This deed starts with the assertion that the parties to it "are members of the joint Hindu Kshatria family known as 'Sreepadom Palace' which by prerogative is the Royal House of Travancore." It then proceeds to describe the extent of the properties held by the Sreepadom and states :

·~The. lands and other immovable properties mentioned in the Schedule attached hereto have been inherited, held and enjoyed by our family, the aforesaid Sreepadom, Palace, Sreepadom Palace Private Properties and the family continues to have exclusive, absolute and undisputed title of ownership, possession and cnjoy-.ment by the laws of inheritance, custom, proprietorhip and tradi-tion.

The Sreepadom Lands, enfranchised ·as aforesaid, as well as the private family properties, more particularly described in the Sched-

ule hereunder, were administered by His Highness Sree Padmabha Dass Sri Cbithira Thirunal Balarama Varma who is the senior most male member of the family."

After discussing in detail the status of Attingal Ranis and the mode in which some of the properties came to be held by them the High Court in the judgment appealed against has held :

"The Sreepadom Palace is the residence of the Attingal Ranees and natura)ly the Attingal Ranees and the children would constitute Marumakkathayam Tarwad. Properties were assigned even at the time: of the original adoption in 483 M.E. to the family of Attingal Ranees for the purpose of their maintenance in accordance with the style of living expected of them. It is these properties and proper-ties which crune into the family later which were subject matter of division under Ext B. 3 partition deed in 1971."

From the aforementioned discussion by the High Court and the tenure of the deed of partition Exhibit B-3 particularly the meticulous care with which the properties which were the subject-matter of partition were described both in the.body of the deed and the Schedule appended thereto we are of the opinion that all the properties belonging to the joint family in which the appellant could have share or interest were subject-matter of and covered by this deed of partition.

It is not disputed that the properties jn suit do not form part of this deed of partition .• No convincing reason for this significant omission has been brought to our notice. Keeping in view the fact as indicated above that meticulous care was taken to describe the properties which were being partitioned by Exhibit B-3 and the presumed knowledgeability of the persons who were parties to this deed with regard to the family properties it is difficult to believe that at the time when the deed of partition wa<> executed· the properties in dispute were not in the knowledge of the persons who were partie,<> to the said deed. The conclusion and indeed the only conclusion which can be drawn from. this omission is that at the time of the execution of the deed of partition the parties thereto were fully conscious of the fact that the properties in dispute were not joint family properties. In this context not much signifi-cance can be attached to paragraph 19 of the deed of partition on which reliance has been placed by learned counsel for the appellant. The said paragraph reads as hereunder :

"If any property over which the Sreepadom Palace has ownership

and remaining as Sreepadom Palace Private property has been omitteq to be included in this partition, and the omission is detected at subsequent date it will also be shared equally between the two branches by mutual agreement to be entered upon as and when such necessity arises."

in our opinion, paragraph 19 referred to above was incorporated in the deed of partition in routine manner it having become almost customary to include such clause by way of abundant caution. As already indicated above and particularly keeping in view the extent and nature of the properties in dispute it is unbelievable that the parties to the deed of partition were not aware about the existence of these properties and left it to be partitioned in future as and when "the omission is detected".

There.is another circumstance which supports this contention. Some of the properties in suit were made subject-matter of declaration of ceiling area under the Kerala Land Reforms Act, 1963. Section 82 of the said Act provides the extent of the land which is to cbnstitute the ceiling area whereas Section 83 provides that with effect from such date as may be notified by the Government in the Gazette no person shall be entitled to own or to hold or to possess under mortgage land's in the aggregate in excess of the ceiling area. For purposes of determination of ceiling area ceiling returns were to be filed under Section 85 of that Act. Sub-section (2) of Section 85 inter alia provided that where person owned or held land in excess of the ceiling area such person shall within period of three months from the date notified under Section 8 file statement before the Land Board intimating the location, extent and such other particulars as may be prescribed, of all lands (inciuding lands exempted under Section 81) owned or held by such person and indicating the lands proposed to be surrendered. The date which was notified under Section 83 was 1st of January, 1970. It is significant to mention here that only Respondent No. 1 had filed return and that too in his capacity as- an individual. Section 85A which was inserted by Act 17 of 1972 inter alia provided in its sub-section (1) :

"Notwithstanding anything contained in this Chapter, every family consisting of more than one member, owning or holding more than twelve acres in extent of land, every adult unmarried person and every family consisting of sole surviving member, owning or holding more than six acres in extent of lands and every other person (other than bank) owning or holding more than twelve acres in extent of land shall, within period of seventy-five days from the commencement of the Kerala Land Reforms (Amend-ment) Act, 1972, file statement before the Land Board intimating

the location, extent and such other particulars as may be pre-scribed, of all lands (including lands exempted under section 81 owned or held by such family or person)."

The appellant or any other member of the family did not file return as contemplated by either sub-section (2) of Section 85 or by Section 85A. The consequence of not filing return was that apart from the land which was found to be within the ceiling area of Respondent No. I who.had filed the return the rest of the land was to be declared surplus and was to vest in the State Government. In our opinion, keeping in view the penal consequence of not filing return namely being deprived of retaining land even to the extent of the ceiling area the circumstance that the appellant or any member of the family did not ·file return is indicative of the fact that they did .not consider these lands to belong to the joint family. ·

At this place, in order to keep the record straight we wish to point out that subsequently an application was made by the appellant under sub-section (9) of Section 85 of the Kerala Land Reforms Act which inter. alia provides :

"The Taluk Land Board may, at any time, set aside its order under sub-section (5) or sub-section (7) as the case may be, and proceed afresh under that sub-section if it is satisfied that -

(a) the extent of lands surrendered by, or assumed from, person under·scction 86 is less than tile extent of lands which he was liable to surrender under the provisions of this Act, or

(b) the lands surrendered by, or assumed from, person arc not lawfully owned or .held by him; or··

(c) in case where person is, according to such order, not liable to surrender any land, such person owns or holds lands in excess of the ceiling area :

This application was, however, rejected by the Land Board. Against the order of the Land Board C.R.P. No. 3786 of .1976 was tiled before the High Court. This civil revision was disposed of by the High Court on 11 t11 September, 1979 by making inter alia the following observation :

"It is brought td my notice that the question which the petitioner sought to raise before the Land Board i.e. whether the property belongs to the joint family or to the Maharaja, is now before this Court in appeal in A.S. No. 210 of 1979. In the circumstances I think interests of justice will be served if I direct that the petitioner can move for relief under Section 85(9) of the Kerala Land Reforms Act on the basis of the decision in the appal. The Land Board will decide the .question of surrender of excess lands on the basis of the decision of the High Court in the appeal. The Land Board would be bound by the said decision and will have accord-ingly to modify the order if it is so necessary. Till the decision in the appeal and in case in the appeal the decision is in favour of the petitioner, till the Land Board takes decision on the petition which the petitioner had filed before the Land Board afresh in accordance with the directions given herein, the Land Board shall · not distribute any excess lands which they have come in possession on the basis of the order passed against the 1st respondent. Nor shall the State the 16th respondent herein alienate any such lands which might have come into their possession on the basis of the decision in the ceiling case against the 1st respondent. The State shall not do anything which might prejudice the right of the successful party in the appeal."

We shall now consider the second contention referred to above raised on behalf of Respondent No. 1.

It may be recapitulated that there are only two alternatives which fall for ~onsideration with regard to the nature of the properties in suit, namely, whether they are joint family property as asserted by the appellant or personal properties of respondent No. 1 as asserted by him. As regards the properties being joint family properties apart from what has been discussed above, it may further be noticed that the Trial Court recorded categorical finding not only that no title deeds or any other documentary evidence to prove the source of acquisition of these propreties had been produced on behalf of the appellant, even PW. 1, the father of the appellant who appeared as witness on his behalf had to admit that he did not know whether these properties were settled in · favour of anyone and that he had not seen any record to show that these properties belonged to the tarwad as alleged in the plaint. On the other hand, respondent No. 1, inter alia, produced settlement registers marked as Ex. B-10 to B-14, State Budget Ex. B15 and B~16, the Kandukrishi Proclamation dated 27th May, 1949 and Circular Ex. B-30 with regard to the properties shown in Schedule to the plaint indicating that they belonged to the Sirkar or State.

He also produced Ex. B-17 indicating that maintenance of the palace buildings was being done by the State with the funds of the State exchequer. With regard to securities and shares in the name of respondent No. 1 and the items of jewellery in his custody, the Trial Court has held that there was nothing on the record to show that they had been acquired with tarwad funds or that the tarwad had any interst in the same. The fact that the lacuna pointed out by the Trial Court as aforesaid did exist could not successfully be assailed on behalf of the appellant either before the High Court or even before us.

The Rulers of Travancore and Cochin with the concurrence and guaran-tee of the Government of India entered into covenant dated 27th May, 1949 for the formation of the United State ofTravancore and Cochin. This covenant was proved in the suit and marked as Ex. A-2. Article IV of the covenant provided that there shall be Raj Pramukh for the United State. Article XV which is relevant for the purposes Of the instant case provided as hereunder :-

"(1) The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him immediately before the appointed day.

(2) He shall furnish to the Government of India in the Ministry of States before the first day of September, 1949 as inventory of all immovable property, securities and cash balances held by him as such private property. /

(3) If any dispute arises as to whether any item of property is the private property of the Ruler or State property, it shall be referred to such person as the Government of India may nominate in consultation with the Ruler of Travancore or Cochin as the case may be and the decision of that person shall be final and binding on all parties concerned."

Respondent No. 1 furnished the relevant inventory contemplated by the aforesaid Article XV. Copy of Government proceedings consequent upon the aforesaid covenant and furnishing of the inventory was marked as Ex. A-3. It starts by saying :-

"The question of the private properties of His Highness the Maharaja of Travancore was engaging the attention of the Govern-ment of India.· The conclusions reached and agreed to by this Government and embodied in three statements showing :-

BALAGOPALA VARMA v. BALARAMA VARMA [OJHA, J.] 91 (i) Immovable properties recognised as the Private Property of His Highness the Maharaja of Travancore. (ii) Immovable properties to be handed over to the State Govern-ment, and (iii) Cash balance and securities recognised as His Highness 'private property."·

Thereafter are to be found the lists containing details of the aforesaid three categories of property. It ·has not been disputed before us that these lists include the properties in suit.

White Paper on Indian States published by the Government of India, Ministry of States, in its part VII dealing with 'Settlement of Ruler's Private Properties' contains in paragraphs 156 and 157, inter alia, the following statement :-

"156. The Instruments of Merger and the Covenants establishing the various Unions of States, are in the nature of over-all settle-ments with the Rulers who have executed them. While they provide for the integration of States and for the transfer of power from the Rulers, they also guarantee to the Rulers privy purse, succession to gaddi, rights and privileges and full ownership, use and enjoyment of all private properties belonging to them, as distinct from State properties. The position about the privy purses guaranteed or assured to the Rulers is set out in details in Part XI. The provisions of the Constitution bearing on the rights, privileges and dignities of Rulers and their succession to their respective gaddis are also explained in that Part. So far as their Private properties are concerned, the Rulers were requited to furnish by specified date inventories of immovable property, securities and cash balances claimed by them as private property. The settlement of any dispute arising in respect of the properties claimed by Ruler was to be by reference to an arbitrator appointed by the Government of India.

157. In the past the Rulers made no distinction between private and State property; they could freely use for personal purposes any property owned by their respective States."

Just as the Rulers of Travancore and Cochin had entered into the

aforesaid covenant, 35 States in Bundelkhand and Baghelkhand regions agreed· on March 13, 1948 to unite themselves into one State which was to be called the United State of Vindhya Pradesh. Article XI of the said covenant as quoted in Vishnu Pratap Singh v. State of Madhya Pradesh and Others, [1990 ] (Supp.) SCC 43, read as hereunder :-

"(1) The Ruler of each Covenanting State shall be entitJed to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of his making over the Administration of the State to the Raj Pramukh.

(2) He shall furnish to the Raj Pramukh before May 1, 1948 an inventory of all the immovable properties, securities and cash balances held by him as such private property.

(3) If any dispute arises as to whether any item of property is the private proper:ty of the Ruler or State property, it shall be referred to Judicial Officer to be nominated by the Government of India, and the decision of that person shall be final and binding on all parties concerned."

dispute arose in regard to house built by one of th.e 35 Rulers, namely, the Ruler of Chattarpur. Dealing with the effect of the covenant in the background of the Instrument of Accession which each of the Rulers including the Maharaja of Travancore had from time to time signed in exercise of his sove~eignty in and over his State, it was held in the case of Vishnu Pratap Singh (surpa) .:-

"Despite the distinction drawn in Article XI, there was in reality no distinction between State -property· and the property privately owned by Ruler, since the Ruler was the owner of all the property in the State. For the purposes of arrangement of finance, however, such distinction was practically being observed by all Rulers. The apparent effect of the covenant was that all the property in the State vested in the United State of Vindhya Pradesh except private property which was to remain with the Rulers. As is evident, the Ruler was required under Article XI to furnish to the Raj Pramukh before May 1, 1948 an inventory of all immovable properties, securities and cash balances held by him as such private property. Conceivably, on dispute arising as to whether any item of property was or was not the private property of the Ruler and hence State property, it was required to be referred to Judicial Officer

to be nominated by the Government of India and the decision of that officer was to be final and binding on all parties concerned.

The factual undenied position is that the Ruler of Chattarpur on July 5, 1948 (vide Ex. D-13-5) submitted list to the Raj Pramukh of the United State of Vindhya Pradesh of his private properties, and in the said list the house in dispute, namely, Guiab Rai Wala house, was shown as the private property of the Ruler (by the then Maharaja Shri Bhawani Singh Ju Deo). In the following month, on ·August 25, 1948, the said Maharaja Shri Bhawani Singh Ju Deo made gift of the house in dispute in favour of his father-in-law Dewan Shanker Partap Singh (now deceased and represented by his legal representatives--appellants). His gift has become the subject matter of dispute in the suit, out of which this appeal has arisen, for grounds to be taken note of later at an appropriate stage.

Taking thus the totality of these circumstances in view, we are driven to the conclusion that the High Court committed an error that the Ruler lost his sovereign right to earmark the property in dispute as his private property after May 1, 1948, or that the said property vested in the State with effect from that date or that the letter Ex. P-9 of Shri N.M. Buch and the lists attached thereto, had the effect of divesting the appellants of the title to the property in dispute in favour of the State with effect from that date. fo that strain, factual position having not been denied, the validity of the gift dated August 25, 1948, cannot be questioned on the grounds enumerated in the plaint, due to exercise of sovereign power of the Ruler in the grant thereof at that point of time."

In view of the foregoing discussion, there can, therefore, be no manner of doubt that the properties in suit were not joint family properties as asserted by the appellant but were the personal properties of respondent No. 1 as asserted by him. Consequently no exception can be taken to the dismissal of the suit filed by the appellant by the Courts below and Civil Appal No. 534 of 1983 filed by the appellant deserves to be dismissed. For the same reason, Civil Appeal No. 535 of 1983 filed by defendants No. 32, 33 and 34 claiming larger share in the properties in suit on partition treating them to be joint family properties as asserted by the appellant also deserves to be dismissed.

We may, at this place, point out that reliance was placed by learned counsel for the appellant on certain decisions laying down that if joint Hindu family property was by custom or otherwise impartible, its nature. of partible joint Hindu family property will get revived on the commencement of the Hindu Succession Act, 1956 and the Kerala Joint Hindu Family System (Abolition) Act, 1975. Reference was also made to several passages from Chapter 12 of Hindu Law by S.V. Gupte dealing with impartible property including the circumstances in which impartible property becomes capable of partition. However, in view of our finding that the properties in suit were not joint family properties as alleged by the· appellant but were the personal properties of respondent No. 1, we do not consider it necessary to deal with them. Neither any principle of law nor any authority has been brought to our notice in view whereof personal properties of respondent No. 1 could get transformed into joint Hindu family properties wherein the appellant could acquire an interest. Even if we proceed on the basis that the personal properties held by respondent No. 1 continued to retain the character of impartibility and they became partible subsequently, it would, in no way, advance the case of the appellant inasmuch as it has not been shown to us that the appellant would be an heir of respondent No. 1 with regard to his personal properties. Apparently such properties would on his demise be governed either by testamentary disposition or would devolve on his personal heirs.

Another point urged by learned counsel for the appellant was that the covenant could not confer any right in favour of r~spondent No. l which he did not otherwise possess nor could it take away the rights of the members of the joint Hindu family by accepting the properties in suit to be the personal properties of respondent No. 1. Suffice it to say so far as this submission is concerned that as has been held above, the properties in suit had been earmarked by respondent No. I as his personal properties which he was competent to do as sovereign and the Government by accepting or approving the list of properties submitted by him as his personal properties in pursuance of the covenant did not purport on its own to create any right in favour of respandent No. 1 in such properties. The Government could have disputed the list submitted by respondent No. 1 but it chose not to do so and the assertion of respondent No. 1 that the properties in suit were his personal properties was accepted.

In view of the foregoing discussion, both the Civil Appeals fail and are dismissed but there shall be no order as to costs.

Appeals dismissed.