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

Citation: [1991] SUPP. 3 S.C.R. 30

Court: Supreme Court of India

Bench: S. RANGANATHAN, N.D. OJHA, M. FATHIMA BEEVI

Case summary

Secondly, the treaty with the Atting(ll Ranees relates to what have been described as the ··Sreepadom properties. 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...

Judgment text

The Judgment of the Court was delivered by t 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 ofTravancore. The State ceased to be a 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 ofimmovable 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. :-Maharajahas.. 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 a . 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, a 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 ofa 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 BALAGOPALA VARMAv. BALARAMA VARMA[RANGANATHAN,J. ] 45 suit in equal shares and that the first respondent was entitled only . to am onethirty fifth share therein. Sri Bhaskaran Narnbiar, who argued the case elaborately and meticulously, 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 a 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 a ruler. The properties thereupon became the properties of the family or tarwad to which the Ruler . belonged and became. partible OQJ7. 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 n a tarwad or Hindu family, they became partible under the above enactments. If the analogy of a 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 a marumakkathayam family and the resultant devolution of property from karnavan to karnavan, that l have still not been able to snake off a feeling that basically counsel may be right in saying that the member~ of the family have a 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 a ground put up on behalf of the first respondent purporting to be a 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 ofMay 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, ifany, 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<> 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 Visweshwar 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 ofIndia, [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 a 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 a 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 a Maharaja, Rajah or the like. Secondly, in those cases, the incident of irnpart. ibility attached itself to properties which belong to a Hindu undivided family in order to give effect to a customary rule of succession of all the properties to a single indivi iar, the properties were impartible because they were properties of a 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 BALAGOPALA VARMA v. BALARAMA VARMA [RANGANATHAN, J.

];; 47 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 a 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 a sthanee or sthanamdar put forward by Sri Nambiar. The nattire and incidents ofsthanam 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 a 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 a 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 ofappeal to the High Court.

I would only like to add that notions such as these are very elusiveand it is tempting to adapt them to other situations which bear only a superficial resemblance thereto. Construed in a very literal sense,. the position of every King or Ruler and, indeed, of every Corporation sole or office holder can beapproximatedto that ofa sthanamdar butthese 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 a 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 a person devolve by a rule ofsuccession related to the position held by him, it does not follow that such person is asthani 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 a sthanam and its properties, which are absent here. In the "first place, the powers of a 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 a sovereign ruler . in these matters were · unlimited. Secondly, ~hen a sthanam was created by opulent and influential families, the members of the tarwad agreed to setaside 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 a 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 a 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 Rulerhad no such interest in the other properties of the tarwad to which he belongs. The analogy of a 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 a tarwad known a 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 ofproperties 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 a 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 ofthe 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 BALAGOPALA VARMA v. BALARAMA VARMA [RANGANATHAN, J. ] 49 from doing this, the plaint has avoided all reference to Ex. B.

3 and some use -I 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 a 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 a 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 a 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 a very ' helpful argument. All the properties held by a monarch or ruler devolve by the rule of primogeniture; there being no distinction in this regard between his -, personal properties and those heldby 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 a 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 a 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 a fallacy in this argument. ~ The doctrine of Hindu law that property inherited by a 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 a son or a lineal descendant) and the successor would be as absolutely entitled to them as his predecessor and cannot bec. ome a 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 a tarwai a~d the first respondent was its karnavan. Then, according to him, it follows, as a proposition 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 a 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, a nucleus ofjoint 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 a joint·Hin~ht family under the Hindu law and a tanvad under the Marumakkathayam law in the context of acquisition of proper.

ties and have adopteJ different principles for ascertaining ~heth~r a property acquired in μie name of a member ofa family_is a joint family property or the self-acquired property 9f th_c said member. Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family p~operty to establish it. When it is proved or admitted that a family possessed sufficient nude. us with the aid of which the member might have made the acquisition, the law raises a pre- -sumption that it is a joint family property and the onus is shifted to the indiyidual member to establish that the prop~rty _was acquired by him without the 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 significance can be attached to paragraph 19 of the deed ofpartition 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 BALAGOPALA VARMAv. BALARAMA VARMA [OJHA,J. ] 87 and remaining as Sreepadom Palace Private property has been · omitteq to be included in this partition, and the omission is detected at a 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 a routine manner it having become almost customary to include such a 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 a 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 a person owned or held land in excess of the ceiling area such person shall within a period of three months from the date notified under Section 8 file a 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 a 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 a sole surviving member, owning or holding more than six acres in extent of lands and every other person (other than a bank) owning or holding more than twelve acres in extent of land shall, within a period of seventy-five days from the commencement of the Kerala Land Reforms (Amendment) Act, 1972, file a statement before the Land Board intimating the location, extent and such other particulars as may be prescribed, 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 a return as contemplated by either sub-section (2) of Section 85 or by Section 85A.

The consequence of not filing a return was that apart from the land which was found to be within the ceiling area of RespondentNo. 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 a return namely being deprived ofretaining land even to the extent of the ceiling area the circumstance that the appellant or any member of the family did not·file a 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, a person under·scction 86 is less than tile extent oflands which he was liable to surrender under the provisions of this Act, or (b) the lands surrendered by, or assumed from, a person arc not lawfully owned or . held by him; or·· (c) in a case where a 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 : BALAGOPALA VARMA v. BALARAMA VARMA [OJHA, J.

] 89 "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 ofjustice 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 accordingly 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 a 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 a 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 a 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 A 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 guarantee of the Government of India entered into a 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 a 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 ofTravancore was engaging the attention of the Government 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 Government, 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 settlements 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 a 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.

Inthe 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 a 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. " A dispute arose in regard to a 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 ofVishnu 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 a Ruler, since the Ruler was the owner ofall the property in the State. For the purposes of arrangement of finance, however, such a 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 a dispute arising as to whether any item of property was or was not the private property of the Ruler and hence . H State property, it was required to be referred to a Judicial Officer BALAGOPALA VARMA v. BALARAMA VARMA [OJHA, J.

] 93 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 a 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 a 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 a 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 a 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. R. P. Appeals dismissed.