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PETITIONER: PRATAP SINGH

       Vs.

RESPONDENT: SAROJINI DEVI

DATE OF JUDGMENT17/08/1993

BENCH:

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by MOHAN, J.- The facts leading to these appeals are as under. 2.Nabha  was a Princely State in pre-independence  India. It was one of the three Phulkian States.  The other two were Patiala and Jind. 3.In  the matter of succession to Chiefship, the rule  of primogeniture  was followed by the Phulkian families.   This rule  was  also followed in the State of Nabha.   While  the eldest  son  became the Chief, provision was  made  for  the younger sons for their maintenance by way of grant of jagir, land or purse. 4.When   the  British  had  paramountcy  in  India   they subjected  the ruling chiefs to various  restrictions.   One such  restriction  was about the purchase  of  the  property outside  the territory of their own State.  The  policy  was enunciated to discourage the acquisition, whether direct  or indirect, by Sovereign or Feudatory princes, of any lands in British Territory, however and from whomever acquired.  This policy  was  communicated  to all native  States  in  Punjab including the State of Nabha. 5.Maharaja Ripudaman Singh was the Ruling Chief of  Nabha State  in  the early twenties of this century.   His  ruling powers were withdrawn by the British Government in the  year 1923.  Thereafter, he was deposed from the Gaddi in 1928 and was  exiled  to  Kodaikanal in Tamil Nadu.   He  resided  in Kodaikanal till 1942 when he died.  He left behind his wife, Sarojini  Devi, three sons, Pratap Singh, Kharagh Singh  and Gurbaksh Singh and two daughters, Kamla Devi and Vimla Devi. 6.Sarojini Devi, wife of Ripudaman Singh and her children were residing in England from 1934 to 1944.  She returned to India  when  her  eldest son, Pratap Singh  was  to  receive administrative  training  as he was to become the  Ruler  of Nabha  State by the applicability of rule of  primogeniture. It  also requires to be stated that the entire  family  came back  to India in the year 1945.  Gurbaksh Singh, the  third son  of  Ripudaman  Singh died in November  1963.   He  left behind 739 is  widow,  Chandra Prabha Kumari and two  minor  daughters, Krishna Kumari d Tuhina Kumari and a minor son Vivek Singh. 7.The  property  known as ’Sterling  Castle’  situate  in Simla was owned by ol. S. Appaji Rao Sitole of Gwalior.   In view of the restriction relating to requisition of  property

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imposed by the British Government Ripudaman Singh  circhased this property in the name of his friend Dr Tehl Singh.   The sale  deed  was  dated December 21,  1921.   Dr  Tehl  Singh executed  the deed of relinquishment on April 30, 1952.   By the  said  deed,  Dr Tehl Singh relinquished  is  title  and conferred  it  upon  the three sons and the  widow  of  late Ripudaman  singh.   It  is this  property  which  forms  the subject-matter of the suit. 8.In  1957,  dispute arose between the  parties.   Pratap Singh claimed absolute fight over this property denying  the title  of  the  other heirs of  Ripudaman  Singh,  When  the Municipal  Committee,  Simla refused to effect  mutation  in their names on view of the objection raised by Pratap Singh, notice  was issued to the Municipal Committee and  the  Sub- Registrar,  Simla that the refusal to do so was not  proper. Similarly, notice was issued to Pratap Singh.  On March  31, 1961, the two younger brothers sought leave from the Central Government  under Section 36 read with Section 87-B  of  the Code of Civil Procedure to file a suit against Pratap Singh. That was refused in July 1961.  On January 30, 1962,  Pratap Singh old this property in favour of ’The Save the  Children Fund’,  a society incorporated in the United Kingdom  for  a sum of Rs 50,000. 9.Sarojini Devi, Kharagh Singh and the minor children  of Gurbaksh  Singh  filed  a  suit for  partition  and  in  the alternative for joint possession and also for he recovery of mesne  profits.   It  was averred in  the  plaint  that  the plaintiffs had a share in the ’Sterling Castle’ as the heirs of  late  Ripudaman Singh.  Though the  property  ostensibly stood  in the name of Dr Tehl Singh it was  Ripudaman  Singh who  was the real owner, the sale consideration having  been provided  by him.  Therefore, Pratap Singh had no  right  to sell  the property in favour of defendants 1 and 2,  namely, ’The  Save  the Children Fund’ and its  Administrator.   The said  sale was not binding on the plaintiffs.   Praying  for the abovesaid relief mesne profits were claimed at the  rate of  Rs  5000  for a period of three  years  commencing  from February 1, 1962 till the date of suit and the future  mesne profits. 10.While the suit was pending, defendants 1 and 2 sold the property in favour of defendants 4 to 8 by a sale deed dated May 1, 1970.  The sale consideration was Rs 1,40,000. 11.Though originally the suit came to be filed before  the learned  Senior  Sub-Judge, Simla, after the merger  of  the area in Himachal Pradesh, original jurisdiction cannot to be exercised by the Delhi High Court.  On the formation of  the Himachal Pradesh High Court, the suit (C.S. No. 14 of  1968) was transferred to the original side of that Court.               12. In the written statement of the defendants               (other than the third defendant) it was  urged               that:               (1)Pratap  Singh was a necessary party  and               insofar as he had not been joined the suit was               bad for non-joinder.               (2)Inasmuch   as  the  Central   Government               refused  leave  under  Section  86  read  with               Section  87-B of the Code of  Civil  Procedure               against  Pratap Singh, the suit could  not  be               filed even against his assignees.               740               (3)The   suit  was  not  maintainable   for               partial   partition  since  there  are   other               properties left by Ripudaman Singh.               (4)From  1942 Pratap Singh had remained  in               possession  of the property as full owner  for

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             over  20 years and had,  therefore,  perfected               his title.               (5)In  the  merger  agreement  executed  by               Pratap  Singh in favour of Central  Government               the  suit  property was claimed  as  exclusive               property  of  Pratap  Singh.   Such  claim  is               conclusive  as  to ownership.   If,  in  fact,               Nabh;   State  was  the  owner,  by  rule   of                             primogeniture  Pratap Singh became the,  owner .                             In  any  event, the defendants were  bona  fid e               purchasers  without  notice.   Therefore,  the               sale in their favour will not be affected. 13.The  learned Single Judge came to the  conclusion  that the  property was purchased benami by Ripudaman  Singh.   On his death, it devolved on the entire joint family.  The rule of  primogeniture  would not be applicable  to  his  persona property since it applied only to the property of the State. Merely because Pratap Singh was declared as a Ruler of Nabha State he could not become the owner of this property.  Thus, answering the issues in favour of the plaintiffs, he granted a  preliminary  decree for partition and recovery  of  mesne profits in favour of the plaintiffs and the third defendant. Aggrieved by the same, the defendants took up the matter  in appeal (R.F.A. No. 22 of 1973). 14.The Division Bench reversed the judgment of the learned Single  Judge  and held that the plaintiffs  had  failed  to establish that the ’Sterling Castle’ was purchased benami in the name of Dr Tehl Singh from out of the personal funds  of Ripudaman  Singh  or  that  it was,  on  that  account,  his personal property.  The failure to establish this basic fact must result in the dismissal of the suit.  Accordingly,  the appeal was allowed.  It is under these circumstances,  Civil Appeal No. 1208 of 1990 has come to be preferred. 15.Civil  Appeal  No.  5857  of 1983  arises  out  of  the judgment  of the Delhi High Court in R.F.A. (O.S.) No. 6  of 1977 dated May 23, 1980.  Pratap Singh filed Suit No. 394 of 1966  for  possession of House No. 34,  Alipur  Road,  Civil Lines, Delhi.  The defendants are mother Sarojini Devi,  two brothers  and  two sisters.  One of  the  brothers,  namely, Gurbaksh Singh, having died, his legal representatives  were brought  on record.  The suit property came to be  purchased in  the  year  1922 by Ripudaman Singh in the  name  of  one Gurnarain  Singh Gill.  The seller was one Shri  Ram  Popli. The sale deed was executed on April 8, 1922 for a sum of  Rs 1,25,000.   The  property was managed by  the  officials  of Nabha State.  In 1937, Gurnarain Singh Gill executed a  deed of release in favour of Nabha State.  The property continued to  be  dealt with as belonging to Nabha  State  even  after Pratap  Singh  ascended the Gaddi.  After  independence  the State  of  Nabha acceded to the Indian Union.   On  May  15, 1948,  a  Covenant  was entered  into  between  the  Central Government and eight Princely States, all of which merged to form  a States Union called Patiala and East  Punjab  States Union (PEPSU).  The plaintiff submitted an inventory of  the properties.   As  per paragraph 2 of Article  XII  the  said inventory included the house in question.  On that basis, it was  urged  by  the plaintiff that  it  became  his  private property and he was exclusive owner thereof.  Thus, the suit for possession. 16.In  opposing the claim of the plaintiff the  defendants contended that it was a private property of Ripudaman  Singh and  continued to be so.  The Covenant had  recognised  this position and had accordingly declared.  The Covenant did not

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create  or  confer  a  new  right.   On  the  contrary,  the intention of 741 he  Covenant is to receive claims, scrutinise the  same  and finally  put at rest tile controversy, if any,  between  the Ruler  and the Government of the States Union once  and  for all. 17.The  learned Single Judge came to the  conclusion  that the  suit property was the property of Nabha State.  It  was not  a  personal property of’ Ripudaman singh.   He  further proceeded  to  hold  that Ripudainan Singh  could  hold  the property  in his personal capacity.  Up to the date  of  the Covenant the property was that of Nabha State.  After May 4, 1949 the ownership changed.  On this basis, the suit came to be  decreed.  Aggrieved by the same, the defendants  took  p the matter in appeal [R.F.A. (O.S.) No. 6 of 1977]. 18.The  Division Bench was of the view that  the  Covenant dated  May 5, 948 does not create any new rights.   It  only recognises  and declares the preexisting rights.  The  claim of   Pratap   Singh  as  private  property  has   not   been established.   The  position  regarding  ownership  of   the property   continued  inchanged  even  after  Pratap   Singh ascended  the  Gaddi.   Thus,  it  was  concluded  that  the property was the personal property of Ripudaman Singh.  Upon his  death, it devolved upon Pratap Singh and his  brothers. Sarojini  Devi  being the widow gets her right  under  Hindu Women’s  Right  to Property Act of 1937 as  Ripudaman  Singh died in 1942.  Accordingly, the appeal was allowed and Suit No. 394of  1966  was  dismissed.   It  is  against   this dimissal  of tile Suit, C.A. No. 6857 of1983 has come to  be preferred. 19.  In Civil Appeal No. 1208 of 1990 Mr Hingorani,  learned counsel  for  the  appellant would  submit  that  under  the impugned  judgment  the  Division  Bench  was  accepted  the findings  of  the learned Single Judge  on  three  important points:               (1)The  rule of primogeniture was  followed               in the State of Nabha in regard to  succession               to Chiefship or Gaddi.               (2)Ripudaman    Singh’s    own     personal               properties  as distinct from State  properties               and succession to his personal properties were               governed by Mitakshara School of Hindu Law.               (3)The  inclusion of the suit  property  in               the  inventory furnished by Pratap  Singh,  as               his  private property, would not  deprive  the               original owners of their share as the heirs of               the father. 20.These findings are independent of the findings  covered by  the decree and would operate as res judicata.  The  only surviving  issue in the appeal is whether the suit  property is  the personal property of Pratap Singh or was  he  owning the property as Karta of Joint Hindu Family?  Having  regard to  the  facts of this case, it is clear that  Pratap  Singh could not have purchased the suit property as State property in the year 1921. 21.During  the  Rulership  Pratap Singh  had  treated  the estate of his father as point family property.   Documentary evidence  supports this argument.  Ex.  B dated December  3, 1943  referred  to the ornaments and other articles  of  the widows  of  the  previous  Rulers  of  Nabha  State.   These properties  were private Properties of the  Ruler,  distinct from State properties. 22.Ex.   F is an indemnity bond given by Pratap  Singh  in favour  of the imperial Bank of India against any  claim  by

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the legal representatives to the ,state of his father. 742 23.Ex.  PW 3-B is a letter dated October 30, 1956 from the Chief  Secretary  PEPSU to Deputy Secretary,  Government  of India  in respect of loan of above Rs 4,00,000  advanced  to Pratap Singh in 1947 against the estate of his father. 24.The  learned Single Judge had given due  importance  to these  document  The Division Bench erred in  treating  them lightly. 25.In  terms of Article XII of the Covenant  dated  August 20,  1948  Prata Singh had submitted a list of  his  private properties  to  Rajpramukh of PEPSU That  included  Sterling Castle, 34, Alipur Road and 11 other properties.  Artiel XII postulates that the Ruler can include in his inventory  only those properties as distinct from State properties, at  that time. 26.Pratap  Singh had, all along treated this estate,  left by his father as join family property.  This is confirmed by his  application  dated February 22, 1949.  requires  to  be noted that the application was filed after the submission of hi  inventory of private properties to the  Rajpramukh.   In the  said application file( before the Court of  Subordinate Judge, Delhi, for grant of letters of administration, it was clearly  averred  by Pratap Singh that his father  had  left properties  in  different places in India  including  Delhi. He,  being  the head of the family, was the best  person  to administer  the  estate  of the deceased.  It  was  or  this basis,  letters  of administration were granted.   It  is  a vital  piece  of evidence to show how Pratap  Singh  himself treated the property. 27.On  May  4, 1949, Pratap Singh received a  letter  from Rajpramukh   in   respect  of  his  inventory   of   private properties.   That included Sterling Castle an(  34,  Alipur Road, Delhi amongst other private properties. 28.Merely  because the Municipal Committee, Simla did  not bring  or, record the names of the beneficiaries  under  the deed of relinquishment by Dr Tehl Singh, effect of  mutation accordingly  does not mean the rights of the appellant  are, in  any way, lost.  The Allahabad High Court has held  in  a judgment   between  the  same  parties  that  the  rule   of primogeniture  applied only to succession to the  Gaddi  and not  succession to his private properties as  distinct  from the  State  properties.  That judgment will  constitute  res judicata.  The Division Bench ought to have given weight  to the  said judgment.  The deed of relinquishment executed  by Dr  Tehl  Singh  conclusively  establishes  that  the   Suit property  is  a joint family property.  It  requires  to  be carefully  noted  that  the  relinquishment  has  not   been disputed  in the written statement of any other  respondent. In fact, it could not be disputed since the learned  counsel for the defendant had made a statement under Order X Rule  1 of  the Code of Civil Procedure that it was not  within  the knowledge  of  defendants 1 and 2 that Ripudaman  Singh  had purchased the property in the name of Dr Tehl Singh in 1921. Defendants  1 and 2 had also no knowledge of  relinquishment dated  April  30, 1952.  In view of this,  the  question  of going  into  the validity of relinquishment did  not  arise. Though Pratap Singh was called upon to produce the  original deed of relinquishment he did not do so.  It was under these circumstances,  a  certified  copy came to  be  filed.   The Division Bench has clearly overlooked this important  aspect of  the  matter.  Further, Dr Tehl Singh, having  died  even before the evidence was recorded in 1970, his evidence could not  be procured.  In view of all this, the finding  of  the Division  Bench ill relation to the deed  of  relinquishment

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cannot be supported.  Article 363 cannot constitute a bat to decide  the  nature of the ownership with reference  to  the property in question. 743 29.In opposition to this, Mr D.D. Thakur, learned  counsel would  submit that there is absolutely no evidence  in  this case that Ripudaman Singh was having large funds from  Sarfa Khas which came to be utilised by Sarojini Devi for purchase of  the suit property.  Excepting the oral  testimony  which has been rightly disbelieved, there is not a single document to prove that the property was purchased benami in the  name of  Dr Tehl Singh.  Right from inception, the  property  was treated  as belonging to the State.  The Municipal  Registry also  bears  this  out.  If really, that be  so,  rightly  a declaration  was made by Pratap Singh on February  22,  1949 while  submitting  the list of properties  as  his  personal property.   The ostensible title of Dr Tehl Singh cannot  be put up because that cannot militate against the treatment of the  property  as belonging to the State  coupled  with  the entries  in the Municipal Register.  As rightly held by  the Division  Bench, the onus of proof cannot be cast  on  these respondents to prove that the property was purchased by  the State out of its funds. 30.The letter of administration was, no doubt, asked  for, but that only relates to bank accounts. 31.A  careful reading of the White Paper shows that  there was no distinction between private and public property  made by  the Ruler.  Lastly, it is submitted, as seen  from  Exs. D-3  to  D-6,  the records  of  Simla  Municipality  clearly establish that the property belongs to the Nabha State.   In view  of  this,  it is submitted  that  no  interference  is warranted with the impugned judgment. 32.Mr  Arun Mohan, learned counsel, would submit that  the question in this case is, whether acquisition of Alipur Road property by Ripudaman Singh was in a capacity other than the Ruler  of  Nabha  State?  In other words,  at  the  time  of Ripudaman  Singh’s removal and exile in 1923 or at the  time of  his  being  formally deposed in 1928  was  the  property separated  from  the  State  of Nabha  or  retained  by  him personally or exclusively, and in 1937, when Gurnarain Singh Gill, the ostensible owner, relinquished his property.   The question  would be whether the relinquishment was in  favour of  Gurcharan  Singh (formerly Ripudaman Singh) who  was  by then only a subject or did he do so in favour of State?  The learned Single Judge proceeded on the basis that there was a dual  capacity.  There is no such dual capacity in law.   He came  to  the  conclusion  that  the  evidence   established purchase  by the State.  When the Division Bench  held  that the  purchase was by Nabha State it did not have  regard  to the  acts of State in 1923-28 on the one hand and  the  1942 succession on the other. 33.Equally,  the  Division Bench failed to note  that  the property  belonged  to Nabha State and not to  S.  Ripudaman Singh.  Even after Ripudaman Singh was deposed, S. Ripudaman (later  Gurcharan)  Singh  had  nothing  to  do  with   this property.   The  finding  of the  Division  Bench  that  the Covenant dated May 5, 1948 only recognises and declares  the pre-existing rights is wrong both in law and in fact. 34.It is important to note that insofar as 1923-28  period is concerned they are acts of State, there was no death,  no succession  opened.  Therefore, there was no application  of Mitakshara.   When  in  1928 Ripudaman  Singh  was  formally deposed it extinguished every vestige of his title or claim. When Pratap Singh was installed, title thereto came to  vest in  him  and  the  said title continued  and  has  not  been

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defeased at any point of time subsequently.  If this be  so, the  findings  of the Division Bench are liable  to  be  set aside. 744 35.Countering  these  submissions,  it  is  argued  by  Mr Hingorani,  learned counsel, that the case of the  appellant before  the  High  Court was that even before  the  date  of Covenant an Indian Ruler whose capacity was other than  that of  a Ruler acted only for the State, being  its  sovereign. Any  property  purchased by him, in his own name or  in  the name of another person, would not be purchased by the State. The High Court has correctly found that such a contention is not acceptable in view of the articles of the Covenant. 36.It  is submitted that the Ruler’s private  property  is not  governed by any of the provisions of  the  Constitution which  provide certain privileges, rights and  powers  which were being enjoyed by the Ruler. 37.The Division Bench followed the ruling of the Allahabad High  Court involving identical issues between the  parties. It  was on that basis the conclusions were arrived  at  that the  rule  of primogeniture applied only to,  succession  to Rulership  and not to the private property.  The  ruling  of the High Court had become final and, therefore, is not  open to  question.   In support of this, reliance  is  placed  on Vashist  Narain Sharma v. Dev Chandra’.  The same  view  was taken  by this Court in Revathinnal Balagopala Varma v.  His Highness  Sri  Padmanabha Dasa Bala  Rama  Varma2.   Learned counsel  wants to draw our attention to paragraphs 5 and  10 of the judgment. 38.The  Covenant  for  the merger of  State,  Article  XIV provides  that succession, according to law and  custom,  to the Gaddi of each covenanting State, is guaranteed.  Article XII  stresses that each Ruler of a covenanting  State  could include  only  such properties in his inventory  of  private properties  which  belonged to him as  distinct  from  State properties. 39.When  Pratap  Singh was installed as Ruler in  1941  he never  passed  any Order or Farman in respect  of  the  suit property.  If the immovable property has been purchased  out of  the  income of the impartible estate it  is  a  separate property of the holder of the impartible estate.  Insofar as there  is no evidence that this property came to  be  merged into  the impartible estate, succession will be governed  by the  general  principles  of Hindu Law.   Therefore,  it  is submitted  that no exception could be taken to the  judgment under appeal. 40.We will now take up Civil Appeal No. 1208 of 1990.  The facts have alreadybeen  set  out.   Therefore,  the  basic question in this case would be, whetherthe  acquisition  of Sterling Castle by Ripudaman Singh in 1921 was in a capacity other than the Ruler of Nabha?  It is the appellant in  this case  who  pleads benami.  In view of the interdict  on  the native   Ruler,  to  purchase  any  immovable  property   in erstwhile British India, necessarily resort was had to  this course  of  benami.  It is well settled in  law  that  where benami is pleaded five principles will have to be taken into consideration.               41.   It  has been held in Mayne’s Hindu  Law,               13th Edn. at page 1201 as under:                "(1)   Source of the purchase money;                (2)  nature  and possession of  the  property               and custody of the title deeds;                (3)  motive;                (4)  relationship between the parties;                1   (1955)  1 SCR 509 : AIR 1954 SC 513 :  10

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             ELR 30               2     1993 Supp (1) 1CC 233               745               (5)   conduct of the parties in dealing."               42.   The  points that fill for  determination               are:               ( 1) What is the rule of succession applicable               to the State of Nabha?               (2)Did Sterling Castle, the suit  property,               belong  to  the State of Nabha or was  it  the               private property of Ripudaman Singh?.               (3)Whether  the judgment of  the  Allahabad               High Court constitutes res judicata? 43.Before  we  proceed to answer these questions  we  will briefly set out the historical background. 44.The State of Nabha was formed in 1763 by Hamir Singh as the Ruler.  Maharaja Hira Singh was not a direct  descendant of  the  former  Ruler, Raja Bhagwan Singh.   When  he  died issueless  in  1871 there were no natural  heirs.   Being  a descendant  of Pliul, Hira Singh came to be selected as  the Ruler.  He wielded sovereign powers over this territory.  On his  death  in 1911 his son Ripudaman Singh came  to  power. The admitted facts are: 45.Maharaja Ripudaman Singh ascended the Gaddi of Nabha in 1911 and came to rule the State.  He was an absolute monarch enjoying  the same status, powers and position as any  other Hindu Ruler. 46.In  1920, Maharaja Ripudaman Singh acquired  the  Delhi property  and  in  1921 he  acquired  the  Himachal  Pradesh property.   Maharaja  Ripudaman Singh acquired a  number  of other properties (before and after these two), but it is not necessary to go into those details, at this stage. 47.In  1923,  on account of his  activities,  the  British Government   as  the  Paramount  Power,   removed   Maharaja Ripudaman Singh.  He was externed and made to go into  exile from the State and took up residence in Dehradoon which  was part  of British India.  A monetary allowance was fixed  for him but that also was only partly given.  The administration of  the  Nabha State was taken over and carried  on  by  the British.   Four  years  after being  removed,  in  1927,  he changed  his name from ’Ripudaman Singh’ to  ’S.   Gurcharan Singh’.   Although removed by the British in 1923,  Maharaja Ripudaman  Singh  was formally deposed only on  February  2, 1928.   The British, as the Paramount Power, then  installed Pratap Singh (his son) as the Ruler of Nabha.  The State  of Nabha, and all its properties came to vest in him  (Maharaja Pratap  Singh).   Having been deposed and ceasing  to  be  a Ruler and being a commoner, subject to law, former  Maharaja Ripudaman  Singh  settled  down in  the  south  Indian  hill station of Kodaikanal. 48.Fourteen   years  later,  on  December  14,  1942,   S. Gurcharan  (formerly Maharaja Ripudaman) Singh died  leaving behind  his widow, three sons and two daughters.  The  Nabha State,  he  had  been  divested of  14  years  earlier,  and whatever little he had left with him, formed  subject-matter of his estate. 49.On  August  20, 1948, Nabha State  integrated  (merged) with  seven other Princely States to form  PEPSU.   Maharaja Pratap Singh ceased to be a sovereign ruler as of this date. A  list  of  the properties separated  from  the  State  and retained by him, in terms of the Covenant, was prepared. 50.In the pre-independence era the Rulers were the princes and  although were subject to British paramountcy  yet  they were  absolute  monarchs  or  sovereigns  within  their  own territories.  Their word was the law.  This aspect of

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746 the  matter  has been dealt with in  Revathinnal  Balagopala Varma  2 in paragraphs 51 to 61, wherein there is a  copious reference to case-law. 51.Being  an absolute monarch or sovereign, the Ruler  was the  owner  of  all the property in the  State.   In  Vishnu Pratap Singh v. State of M.P.’ at page 46 it was held:               "Despite the distinction drawn in Article  XI,               there  was in reality no  distinction  between               State  property  and  the  property  privately               owned  by  a Ruler, since the  Ruler  was  the               owner  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               States  of  Vindhya  Pradesh  except   private               property which was to remain with the  Rulers.               As  is evident, the Ruler was  required  under               Article XI to furnish to the Rajpramukh 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 State property, it  was               required to be referred to a Judicial  Officer               to be nominated by the Government of India and               the  decision of that officer was to be  final               and binding on all parties concerned.  Despite               the stern language of Article XI, requiring  a               Ruler  to  furnish  the list  of  his  private               properties  by May 1, 1948, the  covenant  did               not  contain any clause or  article  providing               penal consequences which would or were  likely               to  follow  in  the  event  of  a  Ruler   not               furnishing  the  list  of  private  properties               before that date.  Nothing is available in the               covenant  and none was pointed out to us  that               if  a Ruler failed to furnish an inventory  of               his private properties before May 1, 1948,  he               was  debarred  from furnishing it at  a  later               stage  and  that failure on his part  had  the               effect  of  divesting  him  of  title  to  his               private properties."               52.   Again in paragraph 13 at pages 51-52  it               was stated thus:               "It is thus plain that the Ruler of Chattarpur               lost  none of his sovereignty  by  integrating               his  State  with other States  except  to  the               extent   in   which   it   was   arranged   or               redistributed  on some of its aspects.  It  is               in  exercise of that sovereign power that  the               Ruler, in the manner indicated above, had  set               apart  the property in dispute as one  of  his               private  properties, in the list submitted  on               July  5,  1948.  It is nobody’s case  that  he               could not submit such a list on July 5,  1948.               Further,  it was in exercise of his  sovereign               as  also  individual right  over  his  private               property,  that  he transferred the  house  in               dispute  to  his father-in-law on  August  25,               1948.   In these circumstances, the  suggested               Conference which took place later in September

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                           1949 between him and Shri N.M. Buch,  Secretar y               in the Ministry of States, New Delhi,  evident               from  letter Ex.  P-9 dated January 22,  1950,               and  the  lists Exs.  P-10 to  P-12,  appended               therewith,  is not of much  significance.   In               the   first  place,  the  Ruler  denied   when               appearing as a witness in the trial as  having               received any such letter or the lists appended               therewith, suggestive of the fact that he  had               reconverted the donated property to be a State               property.   In the second place, but  for  the               said letter, purportedly issued at a time when               the State of Chattarpur had otherwise ceded to               the  Central Government vide  agreement  dated               January 1, 1950, there was no direct  evidence               forthcoming for such conference.  In the third               place, even if such Conference had taken place               in               3     1990 Supp SCC 43, 46               747               September  1949,  as  suggested,  the  minutes               thereof  cannot be treated as amounting  to  a               divestiture of the gift made in favour of  the               father-in-law.   Fourthly,  the Ruler  had  no               sovereign  power  towards  administering   his               State which had become part of the  integrated               United  State  in terms of Article VI  of  the               Covenant, and during the integration he  could               not exercise such a sovereign power, so as  to               take away the property of a private person and               treat   it  as  State  property  because   the               property in dispute having once vested in  the               defendant-appellants could not be divested  in               the  manner suggested.  And lastly, there  was               no raiseable question or issue which the Ruler               could,  while sitting with Shri  Buch,  decide               amicably  without  the  aid  of  the  Judicial               Officer  nominated by the government  entering               upon such dispute, because before  integration               he  owned  his State and  its  properties  and               there  could legitimately not arise a  dispute               as to which was his private property or  State               property  and thus its settlement by a  mutual               consent  did  not  arise.   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 as               his  private  property after May 1,  1948,  or               that  the  said property vested in  the  State               with effect from that date or that the  letter               Ex.   P-9  of  Shri N.M. Buch  and  the  lists               attached thereto, had the effect of  divesting               the appellants of the title to the property in               dispute  in  favour of the State  with  effect               from  that  date.   In  that  strain,  factual               position having not been denied, the  validity               of  the gift dated August 25, 1948, cannot  be               questioned  on the grounds enumerated  in  the               plaint, due to exercise of sovereign power  of                             the Ruler in the grant thereof at that point o f               time.  Once that is held the claim for damages               too caves in.  We hold it accordingly."

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             53.It was this ruling which was applied  in               Revathinnal Balagopala Varma case2.               54.The   distinction  between  public   and               private property of a sovereign Ruler came  up               for  consideration  in  one  of  the  earliest               rulings of the Privy Council.               55.In   Advocate  General  of   Bombay   v.               Amerchund4, cited in the footnote in 12 ER, at               page 345, it was observed:               "...  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  absolute  sovereign, who  may  dispose  of               everything  at  any time, and in  any  way  he               pleases,  is  there any distinction?’  and  in               delivering the judgment of their Lordships  he               also  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  me in it, that when you are speaking  of               the property of an absolute sovereign there is               no  pretence  for 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’."               56.It  also requires to be noted that  this               was   one   of  the  cases  referred   to   in               Revathinnal Balagopala Varma case2.               4    12 ER 340, 345 :(1830) 1 Knapp 316,  329-               30               748               57.   White   paper   on  Indian   States   in               paragraph 157 states its under:               "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.   With  the               integration  of States it became necessary  to               define  and  demarcate  clearly  the   private               property  of the Ruler.  The settlement was  a               difficult   and  delicate  task  calling   for               detailed and patient examination of each case.               As conditions and customs differed from  State                             to State, there were no precedents to guide an d               no  clear  principles to follow.   Each  case,               therefore, had to be decided on its merits."               58.In  the  ruling  already  referred   to,               namely,  Vishnu Pratap Singh3 this  aspect  of               the matter has been dealt with.  However, with               regard  to one other aspect of the  matter  in               Revathinnal Balagopala Varma2 in paragraph 64,               it was observed:               "If  someone  asserts  that  to  a  particular               property   held  by  a  sovereign  the   legal               incidents of sovereignty do not apply, it will               have to be pleaded and established by him that               the  said property was held by  the  sovereign

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             not as sovereign but in some other capacity."               Q.    1:  What  is  the  Rule  of   Succession               applicable to the State of Nabha?               59.   As  to  the  applicability  of  rule  of               primogeniture  it  could be  culled  from  the               following rulings.               60.In  Baboo Gunesh Dutt Singh v.  Maharaja               Moheshur Singh5 it was stated as follows:               "We apprehend that the principle upon which we               are about to proceed in this case admits of no               doubt  or question whatever.  By  the  general               law  prevailing in this District,  and  indeed               generally  Linder the Hindoo law, estates  are               divisible  amongst  the sons, when  there  are               more than one son; they do not descend to  the               eldest son, but are divisible amongst it. With               respect  to  a  Raj  as  a  Principality,  the               general rule is otherwise, and must be so.  It               is   a   Sovereignty,   a   Principality,    a               subordinate  Sovereignty and  Principality  no               doubt,  but  still a limited  Sovereignty  and               Principality,   which,  in  its  very   nature               excludes the idea of division in the sense  in               which that term is used in the present  case."               (emphasis supplied)               61.In  ’Digest  of  Customary  Law  in  the               Punjab’  by Sir W.H. Rattigan,  K.C.,  L.L.D.,               15th Edn. at page 126-M it is stated:               "  The Rule of Primogeniture only prevails  in               families  of ruling chiefs or Jagirdars  whose               ancestors were ruling chiefs."               62.Again, there is a reference to the above               Digest in Jai Kaur v. Sher Singh6.               63.   In Salig Rain v. Maya Devi7 at page  268               it was observed thus:               Rattigan’s work has been accepted by the Privy               Council  as ’a book of unquestioned  authority               in  the Punjab’.  Indeed, the  correctness  of               this  paragraph was not disputed  before  this               Court in ’Gopal Singh v. Ujagar Singh,8."  5 (1854-7) 6 MIA 164: 1 Sar PCJ 521 6    AIR  1960  SC 11 18 at 11 21 :(1960) 3 SCR  975  :  ILR (1960) 2 Punj 615 7    AIR 1955 SC 266 :(1955) 1 SCR 1191 8  AIR 1954 SC 579: (1955) 1 SCR 86 749               64.   In   Privy  Purses’  case9  Mitter,   J.               observed:               "It  would appear that invariably the Rule  of               Lineal  Male  Primogeniture coupled  with  the               custom of adopting a son prevailed in the case               of  Hindu Rulers who composed of the  bulk  of               this body." 65.Though impartibility and primogeniture, in relation  to zamindari  estates  or other impartible estates  are  to  be established  by  custom, in the case of a  sovereign  Ruler, they are presumed to exist. 66.The   allied   question   is  whether   the   rule   of primogeniture applies only to the Rulership (Gaddi) and  not to the other property?  This is precisely the argument of Mr Hingorani.  This argument came to be accepted by the learned Single  Judge of the High Court of Himachal Pradesh as  well as  the  Division  Bench  of the Delhi  High  Court  in  the judgment  under  appeal.  We have already  referred  to  the observations  of  Lord  Tenterden  in  Advocate  General  v.

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Amerchund4.   We may also now refer to the  observations  of Bhagwati, J. (as he then was) in D.S. Meramwala Bhayavala v. Ba Shri Atarba Jethsurbhai10:               "If the Khari-Bagasara Estate was a  sovereign               Estate,  it  is  difficult  to  see  how   the               ordinary  incidents of  ancestral  coparcenary               property could be applied to that Estate.  The               characteristic     feature    of     ancestral               coparcenary  property is that members  of  the               family acquire an interest in the property  by               birth  or  adoption  and  by  virtue  of  such               interest  they can claim four rights: (1)  the               right of partition; (2) the right to  restrain               alienations  by the head of the family  except               for  necessity; (3) the right of  maintenance;               and  (4)  the right of  survivorship.   It  is               obvious from the nature of a sovereign  Estate               that  there  can be no interest  by  birth  or               adoption in such Estate and these rights which               are  necessary  consequence  of  community  of               interest   cannot  exist.   The  Chief  of   a               sovereign  Estate  would hold  the  Estate  by                             virtue of his sovereign power and not by virtu e               of municipal law.  He would not be subject  to               municipal  law;  he  would  in  fact  be   the               fountain-head of municipal law.  The municipal               law cannot determine or control the scope  and               extent of his interest in the Estate or impose               any  limitation on his powers in  relation  to               the Estate."               67.   Again, at para 12 it is stated thus:               "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               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." 68.This being the position, the distinction drawn  between public  and  private  property  seems  to  be  not  correct. Reference  has  been  made  to  the  case  ill   Revathinnal Balagopala Varma2 in this regard.  Insofar as such a concept runs counter to the basic attribute of sovereignty the  said distinction  is not acceptable.  In this connection, we  may refer to Mirza Raja Shri Pushavathi 9 madhav Rao Jivaji Rao Scindia v. Union of India, (1971)  1 SCC 85 : AIR 1971 SC 530, 596 10 ILR (1968) 9 Guj 966 (para 11)  750 Viziaram   Gajapathi  Raj  Manne  Sultan  Bahadur  v.   Shri Pushavathi  Visweswar Gajapathi Raj’ 1. At page 416  it  was observed thus:               "It follows from the decision in Shiba  Prasad               Singh case12 that 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               self-acquired    immovable    property     and               thereupon, the property accrues to the  estate               and  is  impressed  with  all  its  incidents,

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             including    a    custom   of    descent    by               primogeniture.   It  may be otherwise  in  the               case of an estate granted by the Crown subject               to descent by primogeniture." 69.With this, we pass on to the next question whether  the primogeniture  lapsed  in  the years  1947-48?   It  is  the contention of the respondents that Pratap Singh ceased to be governed  by  primogeniture on August 15, 1947 and,  in  any case,  on August 20, 1948 when he ceased to be a  sovereign. It is true that there was no Rulership after India became  a Republic on January 26, 1950 but if the estate is impartible in  nature it would continue to be governed by the  rule  of primogeniture.  We will refer to Thakore Shri  Vinayasinghji v.  Kumar  Shri Natwarsinhji13.  At page 134  it  is  stated thus:               "The principle of law that is applicable to  a               coparcenary property or to the coparceners  is               inapplicable to an impartible estate or to the               holder  thereof  except  that  an   impartible               estate  is  considered to be  a  joint  family               property  to the extent of the junior  members               succeeding   to   the  estate  by   right   of               survivorship.      When     under      certain               circumstances  the  right of a  coparcener  to               take  by  survivorship  can  be  defeated,  no               exception  can  be  taken,  if  the  right  of               survivorship   of   junior   members   of   an               impartible estate to succeed to it is defeated               by  the  holder thereof by  disposition  by  a               will."               70.Again in Rajkumar Narsingh Pratap  Singh               Deo  v.  State of Orissa14 at  page  121it  is               observed thus:               "As we have just indicated, the customary  law               which   required   the   Ruler   to    provide               maintenance  for  his junior brother,  can  be               said to have been continued by clause 4(b)  of               the  Order  of  1948 and Article  372  of  the               Constitution;......               71.  Section  5 of the Hindu  Succession  Act,               1956  (Central  Act  30  of  1956)  states  as               follows:               "This Act shall not apply to               (i) **   ***  **  **               (ii)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  terms               of    any   enactment   passed   before    the               commencement of this Act;               (iii)    **    **   **   **               72.   In Mulla’s Hindu Law, 16th Edn. at  page               766 it is stated:               "The  exception is limited to  the  impartible               estates of Rulers of Indian States  succession               to which is regulated by special covenants  or               agreements 11 (1964) 2 SCR 403 : AIR 1964 SC 118 12   Shiba Prasad Singh v. Rana Prayag Kumari Debi, 1932  LR 59 IA 331 13 1988 (Supp) SCC 133, 134 14 (1964) 7 SCR 112, 121 : AIR 1964 SC 1793 751 and  to  estates,  succession to which is regulated  by  any previous legislation, and     the  Estate and  Palace  Funds

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mentioned in sub-section (iii)." 73.  At  the stage of Bill, in 1954 it was  clearly  brought out  in  the Rajya Sabha Debates at pages 7115 and  7116  as under:               "Then there is another clause, sub-clause (ii)               which says:               ,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 terms  of   any               enactment  passed before the  commencement  of               this Act;’               This  clause  has been put in because,  as  we               know,  it  is  only after  the  attainment  of               independence  that on a large scale there  has               been  integration  of States,  and  there  are               certain  agreements and covenants  which  have               been  entered into between the Government  and               those Rulers of States, and some  arrangements               have been made only very recently with respect               to their line of succession.  It is a  special               thing.   What  it says is:  ’any  covenant  or               agreement   entered   into  by   the   Ruler’.               Naturally,  if we have entered into  any  such               agreement only as recently as 1947 or 1948 and               much  time has not elapsed, it is  not  proper               that by an enactment of a general nature  like               this we should do something which will set  at               nought the agreements and the covenants  which               the  Government of India has solemnly  entered               into with those people and on the strength  of               which they had consented to allow their States               to  be  integrated with India.  of  course,  I               agree  that  probably  it is  not  entirely  a               socialist pattern or whatever you call it, but               as  I  have  been always saying,  I  hold  the               opinion that we have to proceed by the process               of evolution.  I do not mince matters."               74.Therefore, it can be said with certainty               that this rule continued even after 1947-48.               75.Under Article 372 the law of  succession               relating  to primogeniture continues until  it               is  repealed.   This is the  position  of  law               relating to succession.               76.We will now see the relevant portions of               the  Covenant entered into between the  Rulers               of Nabha State and the Government of India  on                             May  15,  1948, which have a  bearing  on  thi s               aspect.               77.   The relevant provisions of the  Covenant               are:               "Article  VI.  (a) All rights,  authority  and               jurisdiction  belonging  to  the  Ruler  which               pertain or are incidental to the government of               the Covenanting State shall vest in the  Union               and  shall  hereafter be exercisable  only  as               provided  by  the Constitution  to  be  framed               thereunder;               (b)all duties and obligations of the  Ruler               pertaining or incidental to the government  of               Covenanting  State shall devolve on the  Union               and shall be discharged by it;               (c)all  the assets and liabilities  of  the               Covenanting  State  shall be  the  assets  and

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             liabilities of the Union; and               (d)the  military  force  if  any,  of   the               Covenanting  State shall become  the  military               forces of the Union.         X       X Article  VIII.  The Rajpramukh shall, as  soon               as practicable and in any event not later than               the 30th of August, 1948 execute on behalf  of               the  Union  an  Instrument  of  Accession   in               accordance with the provisions of Section 6 of               the  Government  of India Act,  1935,  and  in               place  of the Instruments of Accession of  the               several  Covenanting States; and he  shall  by               such               752               instrument  accept as matters with respect  to               which  the Dominion Legislature may make  laws               for  the  Union all the matters  mentioned  in               List I and List III of the Seventh Schedule to               the  said  Act except the entries  in  List  I               relating to any tax or duty.               Article XII. (1) The Ruler of each Covenanting               State shall be entitled to the full ownership,               use  and enjoyment of all  private  properties               (as distinct from State properties)  belonging               to  him  on the date of his  making  over  the               administration   of   that   State   to    the               Rajpramukh.               (2)He  shall furnish to the Rajpramukh  before               the 20th day of September, 1948, an  inventory               of  all the immovable  properties,  securities               and cash balances held by him as such  private               property.               (3)If any dispute arises as to whether  any               item  of property is the private  property  of               the  Ruler  or  State property,  it  shall  be                             referred  to such person as the  Government  o f               India  may nominate in consultation  with  the               Rajpramukh  and  the decision of  that  person               shall  be  final and binding  on  all  parties               concerned.               Provided  that  no such dispute  shall  be  so               referable after June 30, 1949.               Article XIV.  The succession according to  law               and  custom, to the Gaddi of each  Covenanting               State, and to the personal rights, privileges,               dignities and titles of the Ruler thereof,  is               hereby guaranteed.               (2)Every question of dispute of  succession               in regard to a Covenanting State which  arises               after  the inauguration of the Union shall  be               decided   by  the  Council  of  Rulers   after               referring it to a Bench consisting of all  the               available  Judges  of the High  Court  of  the               Union and in accordance with the opinion given               by such Bench." 78.A careful reading of Article XII shows that there is  a clear  distinction  between the private properties  and  the State properties.  Such private properties must be belonging to  the  Ruler  and must be in his use  and  enjoyment  even earlier.   Therefore, properties which were recognised  even earlier as such private properties alone were to be left out and  submitted  for the recognition as such.  As  stated  in White  Paper (para 157, page 23 supra), the demarcation  and

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the settlement of the list was carried out for the  purposes of Integration.  If this be the correct position of law, the contrary  observations of the learned Single Judge  are  not correct. 79.The property was purchased on December 21, 1921  benami in the name of Dr Tehl Singh.  The sale deed has been marked as  Ex.   PW 6-A.  The benami nature of the  transaction  is affirmed by the letter of the Prime Minister of Nabha  State dated  April 17, 1922.  In that reply to Governor  General’s agent it is admitted that Sterling Castle has been  acquired by the Nabha State benami.  The following amply establish as to  how this property was treated as belonging to the  State of Nabha. 21-12-1921-  Sterling  Castle, purchased in the name  of  Dr Tehl Singh benami.  Sale Deed is Ex.  PW 6-A. 17-04-1922-  Prime  Minister Nabha State, sends a  reply  to Governor  General’s  agent (Punjab  States)  admitting  that Sterling Castle had been acquired by the Nabha State benami. 19-12-1922-  Resolution of Government of India,  (Foreign  & Political  Deptt.)  regarding  acquisition  of   residential properties by ruling Princes and 753 Chiefs  in British India  ’The property when acquired  by  a Prince or Chief will be acquired as State properties and not as personal property’. 07-06-1923-  J.P. Thompson records that  Maharaja  Ripudaman Singh had sought to retain certain houses including Sterling Castle.  Permission to retain Sterling Castle was declined. 08-07-1923-  The British Government as the  paramount  power removes   Maharaja  Ripudaman  Singh  and  takes  over   the administration of Nabha State.  Maharaja Ripudaman Singh  is externed  and made to go into exile outside the State.   The affairs of Nabha State are placed in the hands of Mr  C.M.G. Ogilvie,  ICS as the first Administrator appointed by  them, pending  return  to  India of Mr  J.  Wilson  Johnston,  the permanent  Administrator.  A sum of Rs 3 lakhs per annum  as pension  is allowed to Maharaja Ripudaman Singh.  Even  this is not fully paid. 5-10-1923-  Having  taken  over the  administration  of  the State,  the Government draws up a list of  house  properties owned  by  Nabha State. 34, Alipur Road shown  as  one  such property.  So is Sterling Castle.  The list is forwarded  to the Government of India on December 19, 1923. 19-12-1923-  Administrator  Nabha sends  to  the  Secretary, Foreign & Political Department, Government of India, a  list of  Nabha State properties, price paid and details of  title deeds etc.  Sterling Castle is included. 15-05-1924- State Engineer, Nabha writes to Municipal Board, Simla for reassessment of taxes of Sterling Castle, which is described as Nabha State property, Ex.  D-4. 27-08-1924- British prepare report on the administration  of Nabha State for the period July 8, 1923 to March 31, 1924. 12-10-1924-  Nabha  State (as owner),  leases  out  Sterling Castle to Lt.  Gen.  Sir Richard Stuart Wortley, Ex.  D-6. 20-11-1924-  State Engineer writes to  Municipal  Committee, Simla  enclosing  copy of lease between the  State  and  Lt. Gen.  Sir R. Wortley for Sterling Castle, Ex.  D-5. 1926-1948-  Simla Municipality Registers record Nabha  State (and  after 1948, Pratap Singh), as the ’Owner’ of  Sterling Castle, Ex.  D-3. 02-02-1928- Maharaja Ripudaman Singh is formally deposed and detained at Kodaikanal.  His son Pratap Singh then minor  is installed  on  the Gaddi as Ruler of Nabha.   A  Council  of Regency,  consisting  a  President  and  three  members   is constituted  to  rule the State during  his  minority.   The

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State  of  Nabha  and all its properties  come  to  vest  in Maharaja Pratap Singh. 06-01-1931-  Lt.   Col.  Coldstream, President,  Council  of Regency,  Nabha  State directs the  Manager,  Nabha  Estate, Simla  that Insurance Policy of Sterling Castle be  obtained in the name of President, Council of Regency. 27-06-1931  to 12-8-1931- Settlement Tehsildar, Simla  after inquiries  and  proceedings  conducted  on  various   dates, sanctions mutation in favour of Maharaja of Nabha on  August 12,  1931,  and  also records the Nabha State  as  being  in possession. 21-12-1933-  Resolution No. 21 of Council of Regency,  Nabha State  regarding  boundary of Sterling Castle  showing  that space would remain State property. 754 13-04-1933 to 12-4-1934- Expenditure on roads and  buildings of  Nabha  Estate analysed in which expenses  pertaining  to Sterling Castle also included. 14-07-1936- President, Council of Regency suggests a cottage in  the compound of Sterling Castle (which is  described  as ’State House’) for renting by Nabha Darbar to Mr Gillan. 09-02-1937  to  13-3-1937- Estimates and proposals  made  in Nabha  State  Budgets and subsequent sanctions made  by  the Agent,  Governor-General of India regarding  expenditure  on repairs and alterations to the kitchen of Nabha State House, Sterling Castle. 05-03-1941-  Maharaja  Pratap  Singh comes  of  age  and  is formally invested with full ruling powers. 12-12-1942- S. Gurcharan (formerly Ripudaman) Singh dies  at Kodaikanal.  Succession to his Estate opens. 03-12-1943- Sardar Gurdial Singh, Home Minister, Nabha State points  out  in  his  Note  No.  3909,  that  there  was  no distinction  between the ornaments belonging to  State,  and Mai Sahibas as everything vested in the Rulers, Ex.  B. 27-03-1945-   U.S.  Troops  vacate  Sterling  Castle   which Maharaja  Pratap  Singh had placed at the  disposal  of  the Government. 08-08-1945- Punjab States Residency informs Chief  Minister, Nabha that Sterling Castle was not required by Headquarters, Ambala Area. 15-08-1947- Having been freed of the British paramountcy  by the  Indian  Independence Act, 1947, Nabha  State  like  the other  five hundred and odd States, accedes to the  Dominion of  India on three subjects i.e. External  Affairs,  Defence and Communication, but the Ruler (Pratap Singh) retains  his sovereignty. 23-12-1947-   Executive   Council  approves   the   proposed estimates  of State Engineer, Nabha regarding repair to  the collapsed retaining wall in Sterling Castle. 19-08-1948-   Maharaja  Pratap  Singh  submits  a  list   of properties to Rajpramukh, PEPSU showing the properties which he intends to retain at the time of merger.  Sterling Castle is included in the list. 20-08-1948-  In  terms of Covenant, Nabha  State  integrates (merges)  with seven other States to form  PEPSU.   Maharaja Pratap Singh ceases to be a sovereign ruler as on this day. 04-05-1949- Rajpramukh, PEPSU writes a letter enclosing  the list  of properties declared to be private property  of  His Highness  Pratap Singh.  Sterling Castle is  also  included. Letter is Ex.  D-1, while the List is Ex.  D-2. 28-06-1950-  Secretary  to  PEPSU  Govt.  writes  to   Simla Municipal  Committee that Sterling Castle has been  declared as private property of Maharaja Pratap Singh and that  entry be now made in his name as owner thereof, Ex.  D-7. 26-04-1961-  Simla Municipality certifies that according  to

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Municipal  records Sterling Castle was owned by Nabha  State from  1926 to 1949 and from February 25, 1950 the  ownership was changed to Maharaja Pratap Singh, Ex.  D-11. 80.As to the Municipal Register the documents establish D- 3, D-4, D-5 and D-6. 755 Q.   2: Whether Sterling Castle is the property of State  of Nabha? 81.  The law relating to benami is stated in Jaydayal Poddar v. Mst Bibi Hazra15:               "It is well settled that the burden of proving               that  a  particular  sale is  benami  and  the               apparent  purchaser  is not  the  real  owner,               always rests on the person asserting it to  be               so.  This burden has to be strictly discharged               by  adducing  legal  evidence  of  a  definite               character  which would either  directly  prove               the fact of benami or establish  circumstances               unerringly and reasonably raising an inference               of that fact.  The essence of a benami is  the               intention  of the party or parties  concerned;               and not unoften, such intention is shrouded in               a  thick veil which cannot be  easily  pierced               through.  But such difficulties do not relieve               the  person  asserting the transaction  to  be               benami  of any part of the serious  onus  that               rests  on him; nor justify the  acceptance  of               mere conjectures or surmises, as a  substitute               for  proof.   The reason is that a deed  is  a               solemn  document prepared and  executed  after               considerable   deliberation  and  the   person               expressly shown as the purchaser or transferee               in   the   deed,  starts  with   the   initial               presumption  in his favour that  the  apparent               state of affairs is the real state of affairs.               Though the question whether a particular  sale               is benami or not, is largely one of fact,  and               for  determining  this question,  no  absolute               formulae or acid test, uniformly applicable in               all  situations,  can  be laid  down;  yet  in               weighing  the probabilities and for  gathering               the  relevant indicia, the Courts are  usually               guided by these circumstances: (1) The  source               from  which the purchase money came;  (2)  the               nature  and possession of the property,  after               the  purchase; (3) motive, if any, for  giving               the  transaction  a  benami  colour;  (4)  the               position  of the parties and the  relationship                             if  any  between the claimant and  the  allege d               benamidar; (5) the custody of the title  deeds               after  the  sale and (6) the  conduct  of  the               parties concerned in dealing with the property               after the sale.               The above indicia are not exhaustive and their               efficacy varies according to the facts of each               case.   Nevertheless No. 1, viz.,  the  source               whence the purchase money came, is by far  the               most  important test for  determining  whether               the  sale standing in the name of one  person,               is in reality for the benefit of another." 82.As  seen from Ex.  D-3 right from 1927  the  properties stood registered in the name of Nabha State up to 1952.  The entry  for the year 1961 is in the name of Pratap  Singh  as the  owner.   From 1962 onwards the name of  ’The  Save  the

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Children Fund’ the vendee from Pratap Singh is entered.   As against  this, what is contended by the appellants  is  that Sterling Castle is purchased out of Sarfa Khas of  Ripudaman Singh who treated this property as his private property.  As rightly held by the Division Bench it was for the plaintiffs (appellants  herein) to prove that the property came  to  be purchased  from  out of the personal funds.   The  plea,  as raised in the plaint, was that Ripudaman Singh used to  draw a privy purse of Rs 3,00,000 for his personal funds.  He had large  personal funds and inherited a lot of funds from  his father.   There  are also funds from  personal  gifts.   All these  were kept by him separate from the State  funds  from out of which this property came to be purchased.  The  proof regarding  this plea rests entirely on the oral evidence  of PW  1  who  would aver that after  purchase  the  sale  deed remained in the custody of his mother.  Inasmuch as PW 1 was born in the year 15 (1974) 1 SCC 3, 6-7 : (1974) 2 SCR 90, 91-92  756 1924  he  could not have any personal knowledge  as  to  the purchase  and  from whom the source of  consideration  went. The  other  oral evidence is that of Sarojini Devi  who  was examined as C.P.W. 1. According to her, the amount was  paid in  cash  to  Sardar Sitole by her husband  in  Nabha.   She stated that she was at Nabha at that time and it was she who brought  the  cash to Sardar Sitole.  Concerning  this  huge amount  she candidly admitted that no account of Sarfa  Khas was  maintained by her husband, nor was any entry about  the payment of Rs 3,00,000 made in any account.  Therefore, this oral testimony is hardly sufficient to establish the  source of consideration. 83.As  regards  the relinquishment deed it was  stated  to have been executed on April 30, 1952 by Dr Tehl Singh.   The original  of this document is not forthcoming.   Nor  again, anyone  connected with this document, was examined.   It  is somewhat  surprising that Pratap Singh should have  insisted upon  such a document when he unequivocally declared by  his letters  dated  August  19 and October  24,  1948,  Sterling Castle  as  his  personal  property.   These  letters   were submitted in accordance with Article XII of the Covenant  to which  we  have  made  a reference  earlier.   But  what  is noteworthy  is  that in this deed of  relinquishment  it  is stated that this property was all through in the  possession of  the ruling family and the State of Nabha.  By  the  time the  suit  came  up  for  trial  Dr  Tehl  Singh  was  dead. Therefore, the finding of the Division Bench in the judgment under  appeal faulting the plaintiffs (appellants) for  non- examination of Dr Tehl Singh may be unwarranted, but in  the light of the other documents, it is impossible to hold  that an  inference must be drawn from the deed of  relinquishment in  favour of the plaintiff to conclude Sterling  Castle  as the  personal property of Ripudaman Singh.  As seen  already even  as early as June 7, 1923, there is a record  declining permission  to  Ripudaman Singh to retain this  property  as personal property. 84.Much  cannot be made of Ex-A, D.O. letter  dated  March 13, 1956 in the absenceof Ranbir Singh being examined.  No doubt, letters of administration were asked for but Sterling Castle  was  not  one of the properties.   The  argument  of learned  counsel  for the appellants that  the  declarations made  in  accordance with Article XII will  not  affect  the ostensible title of Dr Tehl ’Singh who continued to hold the property  till 1952, clearly overlooks the treatment of  the property  right  from the date of purchase as  belonging  to State  of  Nabha.   Therefore, we  have  not  the  slightest

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hesitation  in concluding that the suit property  was  never the  personal  property of Ripudaman  Singh.   The  Division Bench is right in its conclusion. Q.3:  Whether  the judgment of the Allahabad  High  Court constitutes res judicata? 85.The  judgment of the Allahabad High Court relates to  a commoner.   In other words, the Ruler who had been  deposed. In  1942,  he was not wielding ruling powers of  the  State. The  main  issue to be decided in that case  was  succession relating  to Gurcharan Singh’s estate in 1942.  In  deciding the  question  as  to  what monies  were  utilised  for  the purchase of Ilahi Manzil in 1951 the Court returns a finding of  fact that one set of monies that went into the  purchase of that house in 1951 was surplus sale proceeds of Rs 32,000 which  were  personal to Gurcharan Singh till  December  14, 1942.  That being so, upon the death of Gurcharan Singh, the proceeds  acquired the character of Hindu Joint Family.   On December 14, 1942, when succession opened, the property 757 was  inherited  according  to Mitakshara  Law.   If  really, therefore,  the funds flowed from Joint Family it stands  to reason  that it should be held so.  But, here not  only  the facts  but  also  the law which is  applicable  are  totally different.  Therefore, it is concluded that the judgment  of the Allahabad High Court would not constitute res judicata. 86.  In  the result, the appeal will stand dismissed.  There will be no order as to costs. 87.  Now,  we go on to Civil Appeal No. 5857 of  1983.  This appeal relates to No. 34 Alipur  Road, Civil  Lines,  Delhi. The  documents under which the purchase was made were  dated April 18, 1922. 88.  It was purchased benami in the name of Gurnarain  Singh Gill.   The events that followed and the documents  relating to this, till the suit came to be filed by Pratap Singh  for recovery   of   possession   in  1959,   could   be   stated chronologically. 89.  The  property  is in occupation of  the  Government  of India  (from 1920) as a lessee per Ex.  P-16 who had  placed it  at the disposal of the Australian High Commission.   The tenants  (Government of India) attorn to the Nabha State  as the purchaser. 11-06-1923-  J.P. Thompson records that  Maharaja  Ripudaman Singh  agrees that house belonging to Nabha State  could  be sold  to  raise money for paying the proposed  Rs  50  lakhs compensation  to Patiala State by the Nabha State.  He  said he  had kept aside from the State a sum of Rupees Six  lakhs for himself which he would not part and that he had no other assets.  The rest of the State he said the British had taken over. 08-07-1923-  The British Government as the  Paramount  Power removes   Maharaja  Ripudaman  Singh  and  takes  over   the administration of Nabha State.  Maharaja Ripudaman Singh  is externed  and made to go into exile outside the State.   The affairs of Nabha State are placed in the hands of Mr  C.M.G. Ogilvie  ICS as the first Administrator appointed  by  them, pending return to India of Mr J.   Wilson   Johnston,    the permanent Administrator. A  sum  of  Rs 3 lakhs per annum as pension  is  allowed  to Maharaja Ripudaman Singh and nothing else.  Even this is not fully paid. 03-10-1923-  Administrator Nabha State writes  to  Governor- General’s  (Punjab  States) agent a  D.O.  letter  proposing extension of lease of 34, Alipur Road. 05-10-1923-  Having  taken  over  the  administration   from Maharaja Ripudaman Singh, the Government draws up a list  of

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house properties owned by Nabha State. 34, Alipur Road shown as  one such property.  So is Sterling Castle.  The list  is forwarded to the Government of India on December 19, 1923. 07-10-1923- Administrator Nabha receives concurrence to  his proposal from the Govemor-General’s agent (Punjab) regarding extension of lease of 34, Alipur Road. 12-10-1923-  Administrator  Nabha  State  writes  to  Estate Officer  that lease may be extended and that house  No.  34, Alipur  Road belongs to the State although acquired  by  the Maharaja benami. 758 19-12-1923-  Administrator Nabha State writes to  Secretary, Foreign  and  Political  Department,  Government  of   India regarding possession of title deeds of various properties. 28-12-1923-  Administrator Nabha State writes  to  Gurnarain Singh Gill (benamidar) to seek confirmation of the fact that 34, Alipur Road was property of Nabha State. 31-12-1923-  Gurnarain Singh Gill  (benamidar)  acknowledges 34, Alipur Road as the property of Nabha State. 10-01-1924-  Administrator Nabha State writes  to  Executive Engineer stating that the house belongs to the State. 18-01-1924-  Estate  Officer writes to  Administrator  Nabha State  for  production of the Sale Deed as payment  of  rent could not be made without proof of ownership. 07-02-1924-  Administrator Nabha State despatches  the  Sale Deed of 34, Alipur Road to the Estate Officer. 23-05-1924-  Estate  Officer writes to  Administrator  Nabha State  agreeing to pay rent for 34, Alipur Road  subject  to the condition that claim of Gumarain Singh Gill will be  the responsibility of the State. 23-05-1924-  Estate  Officer writes to Gumarain  Singh  Gill notifying  him  that  the Government was  entering  into  an agreement  with Nabha State believing it to be the owner  of the bungalow 34, Alipur Road. 19-06-1924-  List of the house properties belonging  to  the State  having  been  prepared,  it  enquired  from  Maharaja Ripudaman   Singh   (by   then   in   exile)   as   to   the possession/whereabouts   of  the  title   deeds.    Maharaja Ripudaman Singh replies that he does not have any title deed in his possession relating to house properties of the  State and  further expresses that in case of difficulty in  regard to the intended sale of these properties he would always  be prepared to give every assistance. 23-06-1924- D.O. letter from agent, Governor-General (Punjab States)  asking to surrender within 14 days the title  deeds of house property belonging to Nabha State. 30-06-1924-  Rent Bill by Nabha State from April 7, 1922  to June 30, 1924 (Ex.  P-24). 20-08-1924-  Estate  Officer writes to  Administrator  Nabha State  that  lease  of  34, Alipur Road  will  be  sent  for execution  on  receipt  of a reply from  Gumarain  Singh  to letter dated May 23, 1924 (copy Ex.  P-30). 27-08-1924- British prepare report on the Administration  of Nabha State for the period July 8, 1923 to March 31, 1924. 28-08-1924-  Chief Secretary Nabha State writes to  Gumarain Singh Gill requesting him to reply to the Estate Officer and confirm  that Nabha State is the owner of 34,  Alipur  Road, Delhi. 02-09-1924   Gumarain  Singh Gill (benamidar)  confirms  the factum of ownership of Nabha State. 15-10-1924  Rent Bill by Nabha State. 03-11-1924-  Estate  Officer  conveys  Administrator   Nabha State’s demand for rent from April 7, 1922 to May 31, 1924. 759 03-11-1924- Receipt issued by Administrator Nabha State  for

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rent from April 7, 1922 to May 31, 1924. 14-11-1924- Rent being paid by the Government as the  tenant for  34,  Alipur Road is credited to Nabha  State  Treasury. Imperial Bank of India’s letter. 26-02-1925-  Estate  Officer  sends  a  copy  of  lease   to Administrator Nabha State. 02-03-1925-  Administrator Nabha State acknowledges  receipt of copy of lease from the Estate Officer. 02-02-1928- Maharaja Ripudaman Singh is formally deposed and detained at Kodaikanal. His son Pratap Singh then minor is installed on the Gaddi as Ruler  of  Nabha.   A Council of Regency,  consisting  of  a President and three members is constituted to rule the State during  his  minority.   The  State of  Nabha  and  all  its properties come to vest in him (Maharaja Pratap Singh). 1931-1937- Expenses on maintenance of 34, Alipur Road  shown in Budget Estimates of Nabha State. 25-02-1937- Gurnarain Singh Gill (the benamidar) executes  a formal  Release  Deed  in favour of Nabha  State.   Same  is registered at Delhi on April 30, 1937. 05-03-1941-  Maharaja  Pratap  Singh comes  of  age  and  is formally invested with full ruling powers. 12-12-1942-  S. Gurcharan (formerly Ripudaman)  Singh  dies. Succession to his Estate opens. 01-10-1944-  Australian High Commission vacates  34,  Alipur Road. 27-10-1944- Maharaja Pratap Singh desires possession of  the house for himself and officials, (Ex.  P-68). 28-10-1944-  Central  Government to retain 34,  Alipur  Road house for its own use, (Ex.  P-69). 03-11-1944-  Chief  Minister Nabha State  gives  consent  to Central  Government  to retain 34, Alipur Road  house  as  a tenant, (Ex.  P-71). 15-08-1947- Having been freed of the British paramountcy  by the Indian Independence Act, 1947 Nabha State like the other five  hundred  and odd States, accedes to  the  Dominion  of India  on three subjects i.e. External Affairs, Defence  and Communication,  but  the Ruler (Pratap  Singh)  retains  his sovereignty. 19-08-1948-  Maharaja  Pratap  Singh  submits  the  list  of properties to the Rajpramukh which he seeks to retain at the time of merger.  Alipur Road property is part of this. 20-08-1948- In terms of the Covenant, Nabha State integrates (merges)  with seven other States to form  PEPSU.   Maharaja Pratap Singh ceases to be a sovereign ruler on this day. 1949-  List  of  private properties  in  terms  of  Covenant includes 34, Alipur Road and Sterling Castle (Ex.  P-535). 04-05-1949- Rajpramukh of PEPSU’s letter to Maharaja  Pratap Singh enclosing the list of private properties. 760 12-06-1950-  PEPSU Executive Engineer writes  to  Secretary, Municipality,  Delhi  re declaration of 34, Alipur  Road  as private property of Maharaja Pratap Singh.  Letter is  dated June 12, 1950, (Ex.  P-516). 1948-1950-  Smt Sarojini Devi being the mother  of  Maharaja Pratap Singh assumes residence at his Alipur Road property. 1951-  Smt  Sarojini Devi manages to cause her  name  to  be entered in the records of the Notified Area Committee as the owner of the house. 27-01-1951-  Maharaja  Pratap Singh’s  secretary  writes  to Notified  Area Committee re instruction given  by  Executive Engineer, Buildings & Roads, Nabha State, regarding Maharaja Pratap  Singh  being the owner of the house.   Requires  the fact to be entered into the records, (Ex.  P-528). 01-11-1956- PEPSU merges into Punjab.

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01-11-1957-  Dr  Anand  Prakash  as  Advocate  for   Rajmata Sarojini  Devi  writes to Home Ministry a  letter  where  he alleges agreement for giving of 34, Alipur Road to  Sarojini Devi by Maharaja Pratap Singh against money for purchase  of Rolls Royce car.  No plea that this property belonged to  S. Gurcharan  (formerly Ripudaman) Singh and that  his  clients succeeded to it on December 14, 1942. 09-11-1957-  Deputy  Secretary, Ministry  of  Home  Affairs, Government  of  India,  writes  to  Maharaja  Pratap   Singh forwarding letter of Advocate of Sarojini Devi alleging  the giving  of  34,  Alipur Road to Sarojini  Devi  by  Maharaja Pratap  Singh against Rs 78,000 taken for purchase of  Rolls Royce  car.  Letters November 1, 1957, November 9,1957  (Ex. P-AD). 26-11-1957-  Maharaja Pratap Singh writes to the  Secretary, Notified Area Committee. 17-08-1959- Maharaja Pratap Singh files suit for recovery of possession  of 34, Alipur Road in the Court of  Senior  Sub- Judge,  Delhi, which is later transferred to the High  Court of Delhi. 90.  All  these have been referred to by the learned  Single Judge (M.S. Joshi, J.)   in Suit No. 394 of 1966. 91.  Concerning  the expenditure incurred for this  building no evidence whatever was let in on behalf of the respondents (defendants).   On the contrary, there are Budget  Estimates prepared for the year 1931-48 as evidenced by Exs.  P-73  to P-108.  They clearly establish that the funds needed in this regard  came from the Government treasury.  It is true  that Sarojini  Devi in her evidence would state that a sum of  Rs 25,000  was left with the plaintiff for the upkeep  and  the maintenance  of the house.  But, this only remains  on  oral evidence. 92.  At  the time when the house was purchased under  lease, the rent realised was hardly Rs 250 per month.  There is  no evidence to show that Ripudaman Singh ever received the rent or  demanded  the rent.  Though he was alive  for  20  years after  the date of purchase he had not evinced any  interest with regard to this property.  This conduct belies the claim of  the defendant that it was purchased by him from  out  of his personal funds. 93.  As  rightly  held  by  the  learned  Single  Judge  the evidence of Sarojini Devi that Ripudaman Singh purchased the property  from his personal funds and this was meant  to  be the  personal property is hard to accept.  The bank  account is not produced.  The evidence of DW 10 is brittle.  DW  3’s testimony bristles with 761 contradictions.   Therefore, that is not helpful.   What  is more   crucial  is  that  Gumarain  Singh  Gill   throughout maintained  the stand that the property had  been  purchased for  the  State as benamidar.  If really  the  property  was purchased for Ripudaman (Gurcharan Singh) he would not  take that  stand as to betray the confidence of the master.   The release  deed  was  executed on February 25,  1937.   It  is somewhat  strange it should have been executed in favour  of Nabha  State and not Ripudaman Singh.  Ripudaman  Singh  was alive for 5 years subsequent to release deed.  Not a word of protest was uttered either by Ripudaman Singh himself or  by anyone (beneficial owners). 94.  The  respondents  placed reliance on Ex.   DW  9/1.   A careful  perusal  of  the document shows that  there  is  no reference to 34, Alipur Road, the suit property.  Therefore, on  that score, it cannot be claimed as private property  of Ripudaman Singh. 95.  As  we have held in Civil Appeal No. 1208 of  1990  the

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letter  of administration dated February 22, 1949 (DW  11/1) does not, in any manner, help the respondents since there is no reference in the Annexure to the suit property. 96.  There  is one clinching evidence in the letter  of  the Advocate for Sarojini Devi dated November 1, 1957.  That  is extracted below:                                            Ex.  P-515                                        1St November, 1957 "No.  A.P./Misc./433 The Secretary to the Government of India, Ministry of Home Affairs, New Delhi. Dear Sir, Application  under Section 86 read with Section 87-B of  the Code of Civil Procedure. On  behalf of my client, Her Highness Rajmata Sarojini  Devi of  Nabha,  I  hereby apply for permission to  file  a  suit against His Highness Maharaja Pratap Singh of Nabha for  the following matters: Suit for declaration to my client’s ownership rights in  the property  situate at 34, Alipur Road, Delhi.  This  property was given by His Highness to my client in consideration of a sum  of about Rs 78,000 paid by my client on  His  Highness’ behalf for purchase of a Rolls Royce Car. Suit for injuction to restrain His Highness from selling the above mentioned house. Any other relief pertaining to the above mentioned house. Yours faithfully, sd/- Anand Prakash." 97.  Having  regard  to the admission made  above  that  the property  had  been purchased by Sarojini Devi  from  Pratap Singh,  the present plea, put forth by her as  belonging  to the Joint Family is contradictory to the earlier stand. 98.  Now,  we  come to the covenant entered into.   We  have already  seen  the  scope  of  Article  XII.   It  is  worth repeating  the relevant clause of Article XII,  clause  (1), namely: 762               "(1) The ruler of each Covenanting State shall               be   entitled  to  the  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 that State to  Rajpramukh."               (emphasis supplied) 99.  The State properties have been dealt with under Article VI.   The language used in the above clause leaves no  doubt that   the  private  properties  are  distinct  from   State properties which were in the use and enjoyment of the Ruler. Therefore,  what  is decisive are, the user  and  enjoyment. Unless  and  until  it is established by  such  a  user  and enjoyment the property was private, it cannot be claimed  to be so.               100.  Concerning  the scope of  this  article,               the Division Bench says: "Under Article XII in               paragraph  (1) it is provided that  the  Ruler               shall  be entitled to full ownership, use  and               enjoyment of all private properties  belonging               to  him  on the date of his  making  over  the               administration   of   that   State   to    the               Rajpramukh.  Paragraph I clearly assumes  that                             the  Ruler  of each Covenanting  State  may  b e               having  private properties and  the  provision

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             assures  all  the rights in respect  of  those               properties.   Under paragraph 2 the  Ruler  is               required  to  furnish  an  inventory  of   all               properties   held  by  him  as  such   private               property.   The  use of the word  ’held’  also               makes it clear that the Ruler while furnishing               an inventory should be holding some properties               as his private properties.  The decision given               by  the  Rajpramukh with the approval  of  the               Government   of  India  about   a   particular               inventory  furnished  by the Ruler  would  not               make  any difference because it was  meant  to               put  at rest any possible dispute between  the               Government of the States’ Union and the Ruler.               The question which, next, arises is whether  a               property  accepted as a private property  upon               the  furnishing  of the inventory  would  mean               that  the  property  accepted  as  a   private               property  would be the exclusive  property  of               the Ruler or would it also include the private               property  held  jointly by a  Ruler  with  his               family  members.   In  our  opinion  there  is               nothing   to  suggest  that   ’word’   private               property when used in Article XII was meant to               include only those properties which were  held               in exclusive ownership by a particular Ruler." 101.      We are unable to agree with this finding.  If  the various  documents and the other evidence to which  we  have made  a  reference  earlier  point  out  that  the  property belonged  to  the State of Nabha, it  cannot  be  otherwise, because  of  the  list  submitted  by  Pratap  Singh.    The recognition  by the sovereign parties to the covenant,  that the  suit  property is a private property  of  Pratap  Singh would amount to an act of State.               102.We  are  equally  unable  to  uphold   the               finding of the Division Bench in paragraph6 of               the judgment to the following effect:               "The   property  in  dispute  was   admittedly               purchased  by Maharaja Ripudaman Singh in  the               name  of  Gumarain Singh Gill.  There  was  no               reason to buy the property benami in case  the               property  was intended to be the  property  by               Nabha  State.  Only because the  Maharaja  was               having    difficulties   with   the    British               Government he had to buy property benami." 103. This  finding  clearly  overlooks the  interdict  on  a native  Ruler to purchase property in British  India.   That interdict is as under: 763 "Annexure R-10 RULES AND OFFICE ORDERS OF THE POLITICAL DEPARTMENT OF PUNJAB GOVERNMENT EDITION 1908 Office Order No. XXXV 1.   The  Government of India in 1901 pointed out  that  the difficulties and inconveniences arising from the  possession by native foreign chiefs of lands within British Territories are  very  serious.  So greatly have these evils  been  felt that  it  has been the policy of the  Government  to  effect exchanges of territory in such cases, on the basis of giving to  the  chiefs, land in sovereign right in  lieu  of  their zamindari  possession.  For these reasons also it  has  been ruled  by  the Government of India that grants or  sales  of land  in British Territory should not be made to any  native chief who is not a subject of the British Government. 2.   The policy of the Government of India is, therefore, to

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discourage  the  acquisition whether direct or  indirect  by Sovereign  or  Feudatory  princes of any  lands  in  British Territory  however  and  from whomever  acquired.   All  the Commissioners  of divisions in Punjab have been directed  to report all cases in which landed property may be acquired by a ruling chief.  All proposed purchases of this nature  have to be referred for the orders of the Government of India who will  only  allow such purchases in  special  circumstances. These  orders  refer  to all  immovable  property  of  every description  whether  land  or houses and  forbid  also  the lending of money upon mortgage of such immovable property. 3.   The  wishes of the Supreme Government in  this  respect were,  in 1902 communicated to all the native States in  the Punjab  To Patiala, Bhawalpur, Jind and Nabha direct and  to others through Political Agents. 4.   Again in 1903, the Government of India pointed out that they  are  strongly opposed on grounds of principle  to  the acquisition of immovable property in British India by ruling chiefs  and notables of native States, and in  forwarding  a list  indicating the manner and circumstances in  which  the policy  of  the Government of India has  been  infringed  in certain  instances  in the matter and  prompt  and  adequate measures taken to ensure the strict observance in future  of the rules laid down by them. Note:     The  terms  notable employed in the  above  orders applies  only to near relatives of ruling chiefs, to  really important  Sardars  or officials of native  States,  and  to persons whose relationship to or dependence on such  Sardars and  officials is so close that their names may be  used  as cover for ’Benami’ transactions." 104. Accordingly  this appeal will stand allowed.   However, there shall be no orders as to costs.                 -------------------------------- 3