Holding

The properties were personal assets of the former Maharaja and not joint family property, so the partition suit fails.

Summary

The appellant, a member of the Travancore royal family, filed a suit seeking partition and accounting of certain properties, claiming they were part of an undivided Marumakkathayam tarwad. The respondent, the former Maharaja of Travancore, contended that the properties were his personal assets retained after surrendering sovereignty under the 1949 covenant. The Court examined whether the properties could be treated as joint family assets, the applicability of the Hindu Succession Act, 1956 and the Kerala Joint Hindu Family System (Abolition) Act, 1975, and whether the concept of a sthanam applied. Evidence showed no proof that the properties originated from the tarwad, and the covenant merely listed them as the ruler's private property. The Court held that the properties were personal to the ruler and not subject to partition as joint family property. Consequently, the appeals were dismissed.

Issues considered

The nature of the properties: whether they belong to an undivided Marumakkathayam tarwad or are personal properties of the sovereign ruler.
Whether the Hindu Succession Act, 1956 and the Kerala Joint Hindu Family System (Abolition) Act, 1975 apply to the properties in question.
The legal effect of the 27 May 1949 covenant on the title and ownership of the properties.
Whether the concept of a sthanam is applicable to the properties and the respondent's status as a sthani.
The burden of proof on the appellant to establish that the properties are joint family assets.

Legislation cited

Hindu Succession Act, 1956s. 4, s. 7(1), s. 7(3)
Kerala Joint Hindu Family System (Abolition) Act, 1975s. 4
Kerala Land Reforms Act, 1963s. 85(9)
Travancore Kshatriya Regulation, 1108

Subjects

partitionsovereign rulerpersonal propertyMarumakkathayamjoint Hindu familyHindu Succession ActKerala Joint Hindu Family System (Abolition) Actcovenantburden of proofsthanamroyal family

Judgment

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

NOVEMBER 28, 1991
B
[S. RANGANATHAN, M. FATIIIMA BEEVI AND N.D. OJHA, JJ.]
. -
J/indu Law : llindu undividedfami/y-Coparceners-Rights of-Whether
available to members of a Royal: Family in respect of personal properties of a
sovereign ruler. · · ,
c . 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-
D 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. ' .·
E Joint fami/Y"-f'artition-Presumptio~Whethe_r partition is full and
complete.

"Sthanam"-lmportant characteristics explained.

Sovereign ruler-:Succession and powers-Explained.
F
State and public properties and Private properties of a 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
G - 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.

H
-fi:'ai:tice· and Procedure :

stage.
Plea not raised in trial court-Whether can be entertained at appellate
-
>----

30
,_

'
.
...
--+
· .,.,
"*'
BALAGOPALA VARMA v. BALARAMA VARMA 31

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
A

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 B
belonging to a 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 a suit for 'partition and rendition of ac- c
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~likot
taram, governed by Marumakkathayam law as modified by custont and .
i.
usage in respect of succession, inheritance etc., and respondent no. 1 as the
Karnavan
. had been .managing the tarwad properties which were
- .. Hable to D
be partitioned among the appellant and respondents no. 1 to 34 on per
capita basis and the appellant was entitled to a 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 a decree with regard to his share in the. income of the
tarwad properties received by respondent no. 1 as its Karnavan. ·E

. ><. 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
F
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 G
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 H

.,,,_
32 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A and respondents no. 1 to 34 were. members of a 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
a tarwad named Sreepadom and known as the Royal Family of Travan-
. B 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
C 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 a
compulsory partition of the properties of a 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.
D
..Defendant· no. 12 also filed a written state~ent claiming her right
over a certain item of property on the basis of a 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 a
further _plea that she having marri'ed on 14.5.1952 under the special
E 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. _ ~ r
K•

The trial court dismissed the suit holding that neither th.e appellant
and respondents no. 1to34 belonged to any undivided 'Marmukkathayam
F tarwad, rior was respondent'no. 1 the :Karnavan of any such tarwad nor
were the properties in suit the tarwad properties. It recorded a 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
G ·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. · · ·
H
.,
1

BALAGOPALA VARMA v. BALARAMA VARMA

1 •
Against the judgment of the trial Court, the appellant filed an appeai A
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. .B

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 a Sthanee, and· that in· any one of these
situations the properties became partible; and when respondent no. 1 c
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 D
(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. · ·
E
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
F
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
I 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
...I ~ oflndia in pursuance of the Covenant dated 27.5.1949, dismissing the ap- - G
i peals, the Court,
j
J
-~ HELD: (by the Court) ; (i) The suit properties were not shown to be
I properties belonging to an undivided family or marumakkathayam tar- ·
; wad and hence partible. On the other hand, they 'were, and were also
I treated as, the personal properties of the Ruler. [ 54B; 93FG;94B] H
j
'
SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.
~

A (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
B 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. a sovereign atid the Government of India by
C 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:
D -t.t The devoJati:On or the suit properties was from one monarch to
hi.S silcressor. (who is not a son or a lineal de~endant) and1he successor
0
'(
wouid be as absolutely -entitled to them as his predecessor and cannot
become a timited holder;{ 49-FGJ ·
1~2 The doctrine of Hindu Law that property inherited by a son from
E 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, a
nucleus of joint family property which could have been utilised for
F 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 a presumption in the case of an ordinary tarwad,
no such presumption can operate where the Karnavan, being a sovereign
G ruler, acquires properties in exercise of his sovereign rights. Neither the
family nor any member of the family could dream ~f putting up a claim,
so Jong as he is the ruler, that as the properties had be.en acquired by a
member of the family they belong to the family. It cannot be said that they
have such a right but it remains dormant so long as the ruler is a sovereign
and will revive on the·ruler ceasing to be a sovereign. The acquisitions by
H a sovereign ruler cannot be claimed to be joint family property.
[ 51B-E]
BALAGOPALA VARMA v. BALARAMA VARMA 35
~
Shrinivas Krishnarao Kango v. Narayan Devji Kango and Oth~rs, A
...,, [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 , referred to.

1.4. All the properties held by a monarch or ruler devolve by the rule B
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 c
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 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 a deceased predecessor. This circumstance D
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 a tarwad or
tavazhi governed by that Regulation and would not therefore come within
the inclusive part of the definition of a 'joint family' in the K~rala Joint
Hindu Family System (Abolition) Act, 1975. However, the first part of the
E
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 a Hindu undivided family or a marumakkathayam tarwad. [ S9D-F] 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 ofIncome-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 G
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 a very literal sense, the position of every king or
Ruler -Md, indeed, of every Corporation sole or office holder can be H
36 .. SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A approximated to that of a Slhanandar but these two sets of expression are
n9tinterchangeable.[47 EFJ v •

.2.2 Merely because the properties held by a person devolve by a rule
of succession related to the position held by him, it does not follow that
·such person is a Sthani within the meaning· of section 7(3) of the Hindu
. B . Succe8sion Act. {47 FG] ·
2.3 ThreeJmportantincidents characterise a 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 a
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 .
C 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 a 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
D Sthani. [47 GB; 48 AC] . .
r·
In the instant case the analogy of a 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
E 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] ·
Venkateswara lyan v. Shekhari Verma, [1884} ILR3 .Mad 384; Kochunni
. v. Kuttanunni, ILR 1948 Mad ~72; Kevalappara K. Kochuni v. State of
p, MadraS, [1960] 3 SCR 887, M:K.•Balakrishnan
. Menon v. ACED., [1972] 1
S.C.R. 961; Inspecting Ass·u. Commissioner, A.G.I.T. v. Ramunni Panik/car,
[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.

G 3.1 Even assuming that in a Marumakkathayam family there is a
· presumption that the properties acquired by theKarnavan would be joint

-
family properties, that a Ruler is in no better position than an ordinary
Karnavan and that a 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
H · partieS whith are clinchingly against the possibility of there being any ·

' . - . ·. . ,-·· ~ ... - ..
BALAGOPALA VARMA v. BALARAMA VARMA 37
tarwad properties : The properties in suit were alleged to belong .to a A :.
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 a partition of~ jointfamily three is a 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] B
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} C ·· ·
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 D
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 E
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 F
some others unsuccessfully claimed a 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 G
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 A sovereign Ruler has an absolute right to dispose of, at his will, H
38 SUPREME COURT _REPORTS [1991) SUPP. 3 S. C.R.

A even properties which may actually belong to the State and he also has a
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 a
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,
B 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
c 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

D 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.

E 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] f-

F
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
G 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 a Ruler. If some properties did n_ot
belong to him immediately before the appointed date, he could not, by a
BALAGOPALA VARMA v. BALARAMA VARMA 39

mere declaration under the covenant, make it his personal individual A
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
B
.. 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] c
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 ofIndia,
'[1970] 2 SCR 63'1, relied on. · · .
Per Ojha, J.
D
1.1 Respondent nD. 1 was a 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 a sovereign estate there
can be no interest by birth or adoption and therefore the rights of E
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 a sovereign
·as
estatt wau'ld hold th.e estate 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] F
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 a sovereign was that there was
really no dl'ltinction between the public or State properties on the one G
hand and private properties of the sovereign on the other. The other
incidence was that no one could be a 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 a 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 H

·.·· ...
40 SUPREME COURl' REPORTS. !1991] SUPP. 3 S. C.R.

A · 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 a sovereign ruler and the .powers of
such a ruler are two different-concepts. Mode. of succession regulates the
process whereby one sover.eign ruler is succeeded ·by the other.. It may ;be
C 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 a question which :is. not·
relatable to the.process of succession but-relates to the legal incidents of
sovereignty.
D
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 a sovereign never dies and succession. to the next ruler takes place-·
E without there being a .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.
F
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
G 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
BALAGOPALAVARMAv. BALARAMA VARMA 41

& Ors .• l1984}'Supp. SCC 175; Tliakore Shri Vinayasinhji (Dead) by Lrs. v. A
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 a particular prop~rty held by a
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 a sovereign but in some other.capacity. cs2· E]

. In the instant case,· apart from.asserting that the properties in suit
:belonged· to a joint family and respondent no. 1 even though a sov~reign · C
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 ·

of
· 2.2 The plea· the appellant that the prop~rties in -suit. constituted .
"Sthanani'' and· respondent no. 1 was a 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 a Sthani. No amount ofevidence can be looked into upon a
plea which was never·put forward. In his grounds-of appeal before the
High Court t:te appellant took a categorical stand .that the Court b~low E
should.have found that Ext. A. 3 did not create a Sthanam in respect of' the
plaint Schedule properties and that defendant was not a 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 a Sthanam and he F.
being a 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 a
pure question of Law. [73B] G
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. ·
H
42 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A 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.

B 3.1 All the properties belonging to the joint· family in which the
appellant could have a 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,
C 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]
D
3.2 In the ceiling proceedings only respondent no. 1 had filed a
return under section 85 of the Kerala Land Reforms Act, 1963 and that too
in his capacity as an individual. Non-filing of a 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
E 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
F 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
G 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

H 4.3 When both parties have adduced evidence, the question of
BALAGOPALA VARMAv. BALARAMA VARMA 43

burden of proving that the suit properties were impartible or otherwise is A
not of very great importance and the Court has to come to a 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.
B
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 a sovereign and
the Government by accepting or approving the list of properties submitted C
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] D

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. E

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 F
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
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 H

t

l
44 · SUPREME COURT REPORTS [1991) SUPP. 3 S. C. R.

A 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 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
B . 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,
C ·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
D 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
F 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.
G
In the present appeals, arising out of a 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
H that the suit propertiesare 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 one- A
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 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" c
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 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 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 E
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
F
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 G
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 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 H
:+6 SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

A 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
B 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
C 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 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
D 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
E 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
F 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<fual, the rights of the other members of the
G .family to claim a 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 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
H 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 A
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 B
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 C
[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 D
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 E
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 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 be approximated to that of a sthanamdar but these two
sets of expression are not inter-changeable. In Manavikraman Raja v. C.E.D. F
(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 of succession related to the position held by G
him, it does not follow that such person is a 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 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 H
48 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A · 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 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
B 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
C 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 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
D 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
E 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
F 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
G 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
H 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 A
-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 B
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 c
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 D
-,
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 E
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.
F
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. G
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 H
50 SUPREME COURT REPORTS [1991] .SUPP. 3 ~_.C.R.

A 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 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 a karnavan qr by virtue of so~e absolute rights that he may otherwise
B 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 of joint family property which could have been •·
utilised for acquiring such properties or the properties are shown to have been
C 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
1:
context, relied on certain observations made by: Subba Rao, (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:
D
"Courts have recognized the difference between a joint· Hin~ht
,.. ,
family under the Hindu law and a tanvad under the Mar-
umakkathayam law in the context of acquisition of proper.ties and
have adopteJ different principles for ascertaining ~heth~r a prop-
erty acquired in µie name of a member of a family_is a joint family
E 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-
F
-sumption that it is a 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 a 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 a

G junior member of a tarwad (anandravan). It was held that there
was' no presumption either way; and that the.question' had to be
v.
decided on the facts of each case,: sec Govinij.a 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
H law that if a property is acquired in the n_ame of the karnavan, th~rc
BALAGOPALAVARMAv.BALARAMA
. -· . . .
VARMA[RANGANATHAN,J.] 51

is ~ strong presumption that it is a tarwad property and that the A
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.." .
B
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 a presumption in the case of an ordinary tarwad. It is plain, I think, that
no such presumption can operate where the karnavan; being a sovereign ruler,
c
acquires properties in exercise of his sovereign rights. Neither the family nor
·any member of the family could dream of putting up a claim, so long as he is
·the ruler, that as the properties had.been acquired by a member of the family
they belong to the family. It would not be correct to say that they have such a
right but that the right remains dormant so long as the ruler is a sovereign and D
will revive on the ruler·ceasing to be a 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 E
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 a sovereign estate and its chief a
· sovereign ruler, the real import of the. decision becomes Clear. It establishes
beyond doubt that the acquisitions by a sovereign ruler cannot be claimed to
be joint family property. . · . · ·' ·
F
But, even proceeding on the basis that in a marumakkathriyam family
there is a presumption that the properties acquired by the karnavan would be
joint family properties. that a Ruler is in no better position than an 'ordinary
karnavan and that a nucleus of joint {amily properties was provided by the
Attingal Ranees, I think that any presumption that the properties presently in G
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 a 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' H
52 SUPREME COURT REPORTS [1991] SUPP. 3 S. C. R.

A of 13.7 .1971 (Ex. B. 3), which is admittedly a Pru:tition.deed in respect of the
Sreepadom properties, clinches the issue. It is settled law that, when there is a
partition of a joint family, there is a 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 a provision ex abundanti cautela and docs not lead to an
B 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 a 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
c 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 a
tarwad) and that the first respondent was not competent iO alienate them. There
is a letter dated 24.9..64 (~om the Govemmen.t of India addressed to Defendant
D 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 a partition
effected of"the Sreepadom properties". Again; on ll.8~1969, DefendantNo.
12 issued a public advertisement c~allenging a proposed ·alienation by the first
respondent of a 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 a karn~van. The non-inclusion.of these properties
Qr even a 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 a partition of such of the
F properties as the first respondent was willing to have partitioned and there was
_no way of their enforcing a claim of partition of all the properties belonging to
the tarwad. But this is not a satisfactOry e){planation. Though tarwads were
a
.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
G 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 L
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
H which were being made by the first respondent from 1961 onwards, they would
BALA(iOPALA VARMA v. BALARA.\1A VARt.iA [RANGANATHAi"l, J.] 53

certainly have got incorporated in the document of 1971 some reference to the A
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 B
Defendant No. 12 besides a 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 a 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, a substantial c
extent of lands could have been saved from being declared surp.lus. Yet a
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 D
plaintiff sought to reopen the Board's proceedings by making an application
under section 85(9) of the Land Reforms Act filed after a civil revision petition
preferred by him ·from the Board's order had been dismissed on grounds of
-l 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 E
and not relegated to a suit to be filed later by the.plaintiff taking advantage of
the fact that he was a 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 · F
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 G
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 a 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 H
54 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A 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.
B
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
c arise. l shall, however, touch upon some of them for the sake of completeness,

Sri Nambiar strenuously contended that though the first respondent was
a 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.
D 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 a ruler has ceased to be a
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
E any other such property: They do not relate to the rights of a sovereign qua
properties of others wh~n he is a 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 a citizen against the
G 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 a catena of
decisions to show that a monarch's word was law and that all acts of a
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
H discussed again. In the face of these decisions, it is difficult to agree that the:-c
\ \
BALAGOPALA VARMA v. BALARAMA VARMA [RANGANATHAN, J.] 55

were any limitations on the sovereignly of Lhe Ruler ?fTravancore so long as A
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.
B
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, a Constitution Bench of this Court held, by a
majority, that a "tharao" issued by a 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) C
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 D
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 a "law" within the meaning of the ordinance. The High Court and
Supreme Court answered the question in the negative. The Supreme Court.
obse~ed: · · · · E

"The High Court negatived this contention relying on the law
enunciated by this Court in a catena of decision. Thr Yiew lakcn iri
the aforesaid d.ecisions in substance was tha~ every order passed by
a Sovereign Ruler was not 'law' inasmuch as it was not necessarily F
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 G
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 c.
result of a legislative process, and if it is not calculated or designed.
to bind as a rule of conduct, cannot be characterized as a 'law: .llf
·the result of the order was no more than to.bring a~out a·c~ntract:·~-
or a grant or a gift, it would not constitute 'law'. The High Court H
56 SUPREME COURT REPORTS [1991] SUPP. 3 S. C. R.

A was right in talcing the view that having regard to the language of
the order itself, it appeared to be an executive order conferring a
grant (or a gift) on the plaintiffs. It.did 11:ot have the characteristics
of a legislative mea~ure and did not constitute a 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
B 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
C 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 a relevant
statutory provision or Article 372 of the Constitution. In that situation, while
certain decisions referred to by my ~earned brother had taken a broader view
of the term "law", the group of decisions referred to by Sri Nambiar placed a
D 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
E 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
F Singh v. State of M.P., [1990] Supp. S.C.C. 43, to which I was a party. In that
case, a house property had been shown by the Ruler in the list filed with the _
Rajpramukh under a ·covenant of agreement forming a union l f 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
G challenge the gift made by the Ruler at a point of time when he was a sovereign
Ruler, though the State Claimed that, subsequently, the Ruler had shown the
property as State property in a list submitted to the Government of India in
pursuance of a like covenant of September 1949 .. This decision upholds the
absolute right of a 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
H i~ back from ilie donee at his pleasure (though in fact he did not even exercise
BALAGOPALA VARMAv.BALARAMA VARMA [RANGANATHAN,J.] 57

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

I agree with Sri Nambiar that the Ruler's absolute powers disappeared
when the first respondent ceased to be a Ruler. If some properties did not
belong to him immediately before the appofoted date, the first respondent could
not, by a mere declaration under the covenant, rriake it his personal individual B
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 a good deal of discussibn before us about the effect of the
varfous legislations. I should like to touch upon these points briefly. Taking up c
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 a 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 a
single heir by a 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 a general
exemption and the statute, as eventually enacted, contained a much more
restricted provision. Section 5(ii) of the Act excluded the applicability of the E
Act only to "any estate which descends to a 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
F
relevant for our purposes, reads : .

"4. Overriding effect of Act - (1) Save as otherwise expressly
provided in this Act, -
G
(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 H
58 SUPREME COURT REPORTS [1991) SUPP. 3. S. C.R.

A 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 B 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
B (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 a sthanamdar the custom of
succession to the next sihanee would be inconsistent with the provisions of
c 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
D 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.
E ·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
F 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
.G 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' a
sthanaindar dies after the commencement of the Act. There is, therefore, no
H reason to hold that the appellant's entitlement to sue for the partition of the
BALAGOPALA VARMA v. BALARAMA VARMA [RANGANATHAN, J.] 59

properties arose on 17 .6.56. Indeed, if that had been the position, the appellant A
would not have allowed more than a 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 B
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 a review of which is reported c
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 D
Travancore Royal family was excluded from the purview of the Trav~ncore
Kshatriya Regulation. The Royal Family of Travancore was therefore not a
tarwad or tavazhi governed by the 1108 Regulation and would not, therefore,
come within the inclusive part of the definition of a '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 E
respect of which a 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 a Hindu undivided family
or a marumakkathayam tarwad. F

Sri Nambiar made a 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 a preamble in the following words :
G
"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 H
the State :
60 SUPREME CO_URT REPORTS [1991] SUPP. 3 S. C.R ..

A 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 :

B 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 :
c "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."
D
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 a
few days before the declaration of India's independence. Being a royal
E 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 a right of user
F and do not envisage a 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
G
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
H
Our disposal".
BALAGOPALA VARMAv.BALARAMA VARMA[RANGANATHAN,J.] 61

This was also a pre-accession proclamation and leaves no doubt that, atleast in A
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- B
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 c
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 D
a
them ~o be properties of a 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 E
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 F
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 G
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 a separate judgment ~nly in view of the in_teresting
questions raised and the historical background in which they arise. H
62 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A 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 Travancore 7Cochin. The suit was !nstitutec.I by the appellant on the
assertion that defendants 1 to 34 (respondent No: 1 being the defendant No. 1
c 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
D be partitioned among the appellant and defendants 1 ·to 34 on per capita basis
and the appellant was entitled to a 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 a decree with regard to his sh.are in the income.of
E 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
F the appellant filed a 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
G was resumed by the Government. Against the order rejecting his application
under Section 85(9) the appellant filed a 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.
H The case o(.the appellant even with' regard to the properties which.were the
"'\
BALAGOPALA VARMA v. BALARAMA VARMA [OJHA, J.] 63

subject-matter of the ceiling proceedings was that since they were tarwad A
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. f contested the suit and filecj a written stateme~t. Even B
though it was not 'disputed that the appellant and defendants I to 34 were

-
1 members of a family it was denied that they were me:nbers of an undivided
marumakkathayam tarwad and that respondent No. I was the karnavan thereof.
His 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 a tarwad known as Sreepa-
dom (the tarwad set up by the appellant in his plaint was; ~ccording to him,
0

c
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 D
made a further. partition in which the appellant who was a 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 E
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
F
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 modified a;
by custom and usage was not governed by any Statute and no member could
G
ask for a compulsory partition of the properties of a 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 a written
st~1tement wherein inter alia she claimed absolute right over item No. 10 of
Schedule A to the plaint on the' basis of a grant by His High~css the Late H

..
I
.......
64 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A 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. A written statement was filed
also by defendants 32, 33 and 34 supporting the case of the appellant with the
B exception that defendant No. 32 took a 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
a 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
C 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
D 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 A to the plai'nt was her absolute property.
E
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
F . 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.
G
Since it has not been seriously challenged before us that respondent No.
I was a 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
H appellant over the properties in suit. In other words, in the context of the

/'
BALAGOPALA VARMA v. BALARAMA VAA.MA [OJHA, J.] 65

pleadings of the parties the question which falls for consideration is whether A
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
1 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 B
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. c
Before adverting to this question, we find it appropriate at this stage to
deal with a 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 a Tarwad and D
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
\
a Karnavan of a 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 E
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.
F
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 a custom is found to exist it supersedes the general law
which however still regulates all beyond the custom. It was also held that the G
Zamindari which was in dispute in that case being the ancestral property of a
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 a 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 a custom is found to exist it H
j
66 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A 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 a case of a sovereign ruler. The other cases
B 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 a creature of custom. In the case of
c 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
D 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
E 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 a 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 a
F mere spes succession is similar to that ofa reversioner succeeding
on the death of a Hindu widow to her husband's estate It is a right
which is capable of being renounced and surrendered. Such being
their Lordships' view, it follows that in order to establish that a
family governed by the Mitakshara in which there is an ancestral
G 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 a 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
H defendant is entitled to succeed to the impartible estate. Being
BALAGOPALA VARMA v. BALARAMA VARMA [OJHA, J.] 67

entitled to the estate, he is also entitled to.the improvements on the A
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 B
a case of a sovereign ruler as is apparent from the recital of facts inter alia to
the effect that on 27th August, 1915 Raja Durga Prasad, made a 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 a case of a sovereign ruler neither of these Acts would have c
been applicable to him.

In Commissioner ofIncome-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 D
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
a case of a sovereign ruler inasmuch . as such ruler could not have been
governed by the Income-tax Act, 1922. E

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
F
undivided Hindu family. Though the other rights enjoyed by member of a 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 a 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 G
incidents including a custom of descent by primogeniture. In all such cases the
crucial test is one of intention. A holder of an impartiblc estate can alienate the
estate by gift inter vivos, or even by a will, though the family is undivided; the
only limitation on this power could be by a family custom to the contrary or
the conditions of the tenure which have the same ·effect.
H
68 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A 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
B 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."

C 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.

D 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,
E 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
F
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
G 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.
H
•
BALAGOPALA VARMA v. BALARAMA VARMA [OJHA, J.] 69

In Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo and A
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 B
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 a
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 c
assistance if it is found as a 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 D
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 E
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
F
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 :-
G
"7. Devolution of interest in the property of a tarwad, tavazhi,
kutumba, kavaru or illom :- (1) When a 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 H
70 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A a 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
B a Hindu in the property of a 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
a 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
c 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) ... f)

D (3)

·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
E common coparcenary property on the day the said Act came into force. Sub-
section (2) on the other hand applies to members of a 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 :-
F
(1)

(2) All members of a joint Hindu family, other than an undivided
Hindu family referred to in sub-section (1), holding any joint ~
G 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 a 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
·H holding his or her share separately as full owner thereof."
BALA.GOP ALA VARMA v. BALARAMA VARMA [OJHA, J.] 71

A perusal of the provisions in the two Acts referred to above makes it A
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 a 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 B
property on the day this Act comes into force." On a 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 C
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 a Sthani thereof and consequently the provisions of sub-section (3) of D
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 a case in the pleadings of E
the parties. We found in the pleadings no reference to the office of
the Ruler being that of a Stani. Stanom is a peculiar institution
familiar in the northern part of the Kerala State, namely, Malabar
and is not a well-known institution in Travancore. The institution
of Stanom has peculiar incidents. Merely because a person is an
eldest member of the family he does not become a Stani. We are
F
mentioning this only to emphasise our point that if it is a case based
upon stanom that the court is now called upon to consider that must
necessarily have been a matter of pleadings. There is no such
pleading in the case."
G
While referring to the observations of Lord Dunedin in Siddik Mahomed
Shah v. Mt. Saran, A.LR. 1930 P.C. 57 that "no amount of evidence can be
looked into upon a plea which was never put forward", it was held by this Court
inNagubaiAmmal and others v.B. ShamaRaoandOthers, AIR 1956 SC Page
593 :- . .
H
72 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A "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 a case where parties go to trial with knowledge that a particular
B 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.

C 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 a Sthanam and he being a 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
D appellant cannot be made the foundation for decision of the question about the •
existence of a Sthanam and Respondent No. 1 being a Sthani thereof.

It was, however, urged by learned counsel for the appellant that whether
or not there was a Sthanam is a pure question of law and consequently even in
the absence of any pleading or issue on the point the question·can still be raised.
E We find it difficult to agree with this submission. The Treatise on Malabar &
Aliyasamhana Law (1922 Edition) by P.R. Sundara Aiyar which is a 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 a 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 a stanom that properties are
G temporarily allotted to a person filling a particular position; the
evidence must be sufficient to prove a long continued usage
recognising the property in question as belonging to the person
filling a 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
H to a family' to constitute a fresh stanom? The answer would
I
t, .._,
' BALAGOPALA VARMA v. BALARAMA VAIL\1A fOJHA, J.] 73
j
_.._ probably be the same as to the question whether it is open to the A
members of a family governed by the Mitakshara Law to constitute
certain property impartible and vest it in a 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 a B
manner different from such rules but sanctioned by usage."

-4-' 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 a 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 C
the appellant had taken a specific ground being ground no. 29 to the following
effect:

''The court below should have found that Ex. A3 has not created
a 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 D
·is a sthani and that the plaint A 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 E
permitted to take a 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 a Sthani
therein. ·

At this stage another plea raised by learned counsel for the appellant with
F
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 a dispute with respect to an estate being
impartible or otherwise, the onus lises on the party who alleges the existence
of a custom different from the ordinary law of inheritance according to which G
custom the estate is to be held by a 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 a single person the burden to prove that those properties were
joint family properties and thus partiblc was on the appellant, he bejng the H
74 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.'

A plaintiff so as to be able to obtain a 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 a decision on the consideration
of all materials." This view has been reiterated in Narayan Bhagwantarao
B 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 a
sovereign ruler of Travancore till he surrendered the sovereignty as indicated
earlier. In Ammer-un-Nissa Begum and others v. Mahboob Begum and Others,
c AIR 1955 S.C. 352 dealing with the efficacy of certain 'Firmans' issued by the
Nizam of Hyderabad who was a 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
D Constitution, Nizam of Hyderabad enjoyed 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
E would override all other laws which were in conflict with them. So
long as a 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 a later 'Firman' at any time that
the Nizam willed ........ .
F The Nizam was not only the supreme legislature, he was the
fountain of justice as well. When he constituted a new Court, he
could, according to ordinary notions, be deemed to have exercised
his legislative authority. When again he affirmed or reversed a
judicial decision, that may appropriately be described as a judicial
G act. A 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:
H
BALAGOP ALA VARMA v. BALARAMA VARMA [OJHA, J.] 75
Y' "Now th.e Nizam was an absolute sovereign regarding all domestic A
matters at that time and his word was law. It does not matter
whether this be called legislation or an executive act or a 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 a Court: see the judgment of B
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 c
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 a right to possession it was held
(
. in abeyance till established by the civil Courts . D

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 E
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.
F

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 a
G
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 a Firman he could equally take awa1 a part of
them and at the date of the passing of the Constitution the H
;-
76 SUPREME COURT REPORTS (1991] SUPP. 3 S. C.R.

A 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
B had no right to immediate possession; the utmost he had was a right
to be restored to possession if and when he established his rights
in a Court of law."

In MadhaoraoPhalkev. The State ofMadhya Bharat, [1961) 1SCR957,
while dealing with the powers of Sir Madhavrao, who was a sovereign ruler of
C 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
D powers as a 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.

E In dealing with the question as to whether the orders issued by such
an absolute monarch amount to a 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
F 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
G itc; citizens. Jn Ameer-un-Nissa Begum v. Mahboob Begum, AIR
1955 S.C. 352, this Court had to deal with the effect of a 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 a later Firman at any time that the Nizam
H willed. What was held about the Finnan issued by the Nizam
BALAGOPALA VARMA v. BALARAMA VARMA [OJHA, J.] 7T

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

While dealing with a Firman issued by the Maharana ofUdaipur who too
was a sovereign ruler, it was held in Tilkoyat Shri Govindlalji Maharaj v. The
State of Rajasthan and Others, (1964] 1 SCR 561 as follows:
B
"In appreciating the effect of this Firman, it is first necessary to
decide whether the Firman is a 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 C
between an executive order issued by him or a legislative com-
mand issued by him. Any order issued by such a 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, D
1960 a plea questioning the validity of certain orders passed by the Maharaja
of Patiala with regard to a 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 a Constitution Bench after referring m certain
earlier decisions of this Court held :
E
"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
F
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 G
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 a committee which would be in-
charge of the Gurdwara." H
78 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A 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 :

B
"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 a 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
c 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."
-
D
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
a sovereign Estate and the Chief of the Khari-Bagasara Estate for
E the time being was a 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 a sovereign Estate, it is difficult
to sec how the ordinary incidents of ancestral co-parcenary prop-
F
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
-
G family except for necessity; (3) the right of maintenance; and (4)
the right of survivorship. It is obvious from the nature of a
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 a
sovereign Estate would hold the Estate by virtue of his sovereign
H power and not by virtue of muinicipal law. He would not be subject
BALAGOPALA VARMA v. BALARAMA VARMA [OJHA, J.] 79

to municipal law; he would in fact be the fountain head of A
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 a 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 B
inconsistent with his sovereignty. To grant that the sons acquire an
interest by birth or adoption in the Estate which is a 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 C
above but these rights cannot exist in a sovereign Estate. None of
these rights can be enforced again~t the Chief by a 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 a remedy at law but
resort would have to be taken to force for the Chief as the sovereign D
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 a legal right which has no legal remedy. If a claim is
not legally enforceable, it would not constitute a legal right and,
therefore, by the very nature of a sovereign Estate, the sons cannot
have these rights and if these rights cannot exist in the sons, it must E
follow as a 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
F
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- G
ment would be an act of State-that as a 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 ........... : ......... .
H
80 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A ... 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
B effect. This argument is wholly unsustainable on principle ........ .
,,

· It has been brought to our notice by learned counsel for Respondent No. i
i-
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 -.,_
I

c 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:
I-
I
"The order dated 29-3-1974 in C.A. No. 1358-59/69 is recalled and i,_
the following order is passed by consent of parties :
D
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 a 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
E 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.
F 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 '
~l-
pleases, is there any distinction?" and in delivering the judgment
G I
I of their Lordships he al~o observed, "another point made, which
applies itself only to a 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
H when you are speaking of the property of an absolute sovereign
BALAGOPALA VARMAv. ifALARAMA VARMA [OJHA, J.] 81

there is no pretence for drawing a distinction, the whole of it A
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, a bearing on the question raised in the instant case with regard to the B
powers of a 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 a 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 C
law being that "the King never dies". Paragraph 1076 inter alia provides :

"Priority of Crown rights. Where the Crown's right and that of a
subject meet at one and· the same time, that of the Crown is in
general preferred, ·the rule being "detur digniori".
D
Thus, the Crown cannot have a 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 a subject concur, the Crown takes
the whole. So if an indivisible chattel or a debt are assigned to the
Crown and a subject, or where two persons have a joint property
in such a chattel or debt and one person assigns his share to the E
Crown, or where a bond is made to the Crown and a subject, the
Crown takes the whole, for it cannot be a partner with a subject; nor
can the Crown become a joint owner of a chattel real by grant or
contract, but takes the whole."
F
This being the law with regard to the powers of a 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 a sovereign never dies
and succession to the next ruler takes place without there being a hiatus there . G
} 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 a sovereign
I
j 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 a co-owner with the sovereign in the
properties held by him. As observed by Lord Tenterden referred to earlier when H
82 SUPREME COURT REPbRTS [1991) SUPP. 3 S. C.R.

A you are speaking of the property of an absolute sovereign there is no pretence
/
of drawing a 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 a sovereign and the properties in dispute as ,__.
B 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 a 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
C these properties impartible.

In this connection it has to be kept in mind that the mode of succession
of a sovereign ruler and the powers of such a 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
D 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 a question which is not relatable to the process of succession but
relates to the legal incidents of sovereignty.

E . Jf some one asserts that to a particular property held by a 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 a
sovereign but in some other capacity. In the instant case apart from asserting_
that the properties in suit belonged to a joint family and Respondent No. 1 even
though a sovereign ruler, held them as the head of the family to which the
F 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 a share in the properties of the Ranis
G 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 •,.
H 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.

-
'-
•
BALAGOPALA VARMA v. BALARAMA VARMA [OJHA, J.J 83

The following extract from pages 190 to 192 of Kerala District Gazet- A
teers, Trivandrum by A. Sreedhara Menon will give a 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. B
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 a 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 c
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 a large territory of her own independent of Travancore".
Hamilton even refers to a regular treaty between Marthanda Varma D
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, a regular treaty was E
executed between the Raja and the Tamburetty, which was in-
scribed on asilver 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,
F
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 G
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 H

,
..
•,
84 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A 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 a 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
B 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 a sovereign state. As the head of the
royal family and the ruler of the State, he had every right to
c interfere in the affairs of a 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 a 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
D 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 a 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
G on the basis of which it could be held that in the properties of the State held
by a 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: ·
H
BALAGOPALA VARMA v. BALARAMA VARMA [OJHA, J.] 85

"No attempt has been made to adduce evidence directly bearing on A
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."
B
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 a 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 c
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 a covenant whereby he was given an option to
furnish a list of such properties which he wanted to retain as personal properties D
and that he having furnished such a 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 E
executed by the then living members of the Royal Family. Even the appellant
who was a 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 :
F

·~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, a Sreepadom Palace
Private Properties and the family continues to have exclusive, G
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- H
86 SUPREME COURT REPORTS [1991] SUPP. 3 S. C. K.

A 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
B 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 a
Marumakkathayam Tarwad. Properties were assigned even at the
time: of the original adoption in 483 M.E. to the family of Attingal
c 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
D 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 a share or interest were subject-matter of and covered by this deed of
partition.
E
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
F
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
G 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 :

H "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 A·
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 B
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". C
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 D
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 E
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
F
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 G
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 (Amend-
ment) Act, 1972, file a statement before the Land Board intimating H
88 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A 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)."

B 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 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
C filing a 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 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
D 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 -
E
(a) the extent of lands surrendered by, or assumed from, a 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, a person arc not
F
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 :
G

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
H September, 1979 by making inter alia the following observation :
I
BALAGOPALA VARMA v. BALARAMA VARMA [OJHA, J.] 89

"It is brought td my notice that the question which the petitioner A
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 B
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 a decision on the petition c
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 D
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. E

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
F
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 G
· 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. H
90 SUPREME COURT REPORTS [1991) SUPP. 3 S. C. R.

A 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
B 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 a covenant dated 27th May, 1949
for the formation of the United State ofTravancore and Cochin. This covenant
C 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
D 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
E 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
F
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
G 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
H 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 A
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 B
'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.
c
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 D
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 E
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
F
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 a
Ruler was to be by reference to an arbitrator appointed by the
Government of India. G
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 H
92 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A 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 :-

B "(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
c 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,
D 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
E 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
F owned by a Ruler, since the Ruler was the owner of all 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
G 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 A
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 B
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 C
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.

D

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 E

-
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
F
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 G
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. H
94 SUPREME COURT REPORTS [1991) SUPP. 3 S. C.R.

A 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
B 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
C 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
D 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
E 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
F
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
G 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.