Skip to content


Kharak Singh Vs. the State of Punjab - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal Nos. 1457 and 1458 of 1963
Judge
Reported inAIR1977P& H335
ActsConstitution of India - Articles 226 and 300
AppellantKharak Singh
RespondentThe State of Punjab
Appellant Advocate F.C. Bedi,; L.M. Suri and; N.H. Hingorani, Advs.
Respondent Advocate I.S. Tiwana, Dy. Adv. General (Punjab)
DispositionAppeals dismissed
Cases ReferredMadhav Rao Jivaji Rao Scindia v. Union of India
Excerpt:
.....the maharaja had absolute powers over the disposal of the property within his territory and the grant of land in question made in favour of the appellant was perfectly in order and within the competence of the maharaja. state' of madhya pradesh, air 1975 sc 1518, which contained an observation that where two interpretations may be given to the grant, both of which are good, that which is 'most favourable to the crown is in many cases preferred. any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has through his officers, recognised. nay more, even if in a treaty of cession it is stipulated that certain inhabitant could enjoy certain rights, that does not give a title to those inhabitants to enforce..........land in suit known as 'bir ranadhai' was entered as such in the revenue records and this- land was state land in the regime of the maharaja. in regard to the grant contained in the crucial letter dated april 25, 1948. knowledge thereof was denied on the ground that the available state records did not contain any copy or order on the basis of which such a letter purported to have been issued. it was further reiterated that the alleged grant in favour of the appellant was never recognised, accepted or acted upon by the pepsu government and, as such, was not binding on the respondent punjab state. the claim of the appellant was, therefore, refuted. the replication filed by the appellant does not take his case any further and is a mere reiteration of the facts alleged in the plaint. 6. the.....
Judgment:

Surinder Singh, J.

1. This judgment will dispose of Regular Second Appeals Nos. 1457 and 1458 of 1963, which arise out of two separate suits filed by the two brothers of Maharaja Sir Pratap Singh (since deceased), the then Ruler of the princely State of Nabha, which now forms a part of Punjab. On July 13, 1960, Maharaj Kumar Kharagh Singh (who has also died during the pendency of his appeal) filed Civil Suit No. 40 for possession of land known as 'Bir Ranadhai', situated in village Agaul, Tahsil Nabha, District Patiala. His brother, Maharaj Kumar Gurbax Singh, filed a similar Civil Suit No. 41 on the same day. Both these suits were tried independently by Subordinate Judge First Class, Patiala, and the claim of the plaintiffs was decreed. The State of Punjab went up in appeal before the District Judge, Patiala, who, though by means of separate judgments, but on absolutely identical considerations, accepted the appeals and dismissed the plaintiffs' suits. The two plaintiffs in the third round of the bout, have now approached this Court to impugn the verdict of the District Judge, as above, with a prayer for the restoration of the decrees passed by the trial Court in their favour.

2. The facts in both the cases being identical, it would suffice to notice those pertaining to one case only. In the appeal filed by Maharaj Kumar Kharagh Singh (referred hereinafter as the appellant), the claim made in the plaint is that the appellant is the younger brother of Maharaja Sir Pratap Singh (for brevity to be referred as the Maharaja), Ruler of Nabha State. The said Maharaja exercised sovereign -powers subject to the paramountcy of the British Crown till August 15, 1947. A day or so prior to the independence of the Country, the Maharaja signed an Instrument of Accession to the Dominion of India which came into existence on August 15, 1947. The land in suit known as 'Bir Ranadhai' and entered as such into the Revenue Records was directly under the control of the Maharaja who had complete powers of disposing of and dealing with the same as he pleased by virtue of his being the Ruler of Nabha State. In the wake of the Independence, it was proposed that the princely States including Nabha may be merged in a commonly administered territory, which was later on named as the Patiala and East Punjab States Union (Pepsu). The Maharaja, therefore, signed a Covenant on May 5, 1948 whereby he agreed to the merger of his State with the proposed Union. The Union was formerly inaugurated on July 15, 1948 and with effect from this date, Nabha State ceased to exist, the Maharaja having ceded his territory to the new Union. The Rajpramukh of the new Union took control of the same with effect from August 20, 1948. Later, on the enactment of the States Reorganisation Act, 1956, Pepsu territory was further merged into the State of Punjab.

3. Having noticed the historical developments in regard to the State in which the property in dispute is situated, the claim of the appellant in regard to the property may also be recapitulated. It is stated that on April 25, 1948, tha Maharaja issued a letter (Ex. P. W. 1/1) and delivered the same to the appellant on or about May 8, 1948, By means of this letter, he granted the suit land to the appellant to have it as his Farm. The Maharaja also expressed in the said letter the desire that the appellant should divide the Bir land equally with his brother. Maharaj Kumar Gurbax Singh. The contents of the letter are best reproduced verbatim;

NABHA STATE NABHA 25th April, 1948. My Dear Bhai,

Just a line to say that it gives me great pleasure to give the Bir Ranadhai for you to have it as your FARM which I should like you to divide equally and to have a common house of Randhai and its out houses as your country house,

I know that you are going to America with Maji and hope that on your return you shall do the needful.

Hope you are keeping well.

With all good wishes from all and love. Yours affectionately Sd/- Pratap SinghMaharaja Kumar Kharagh Singh of Nabha The Oaks Mussoorie'

4. It is the case of the appellant that despite repeated requests and representations made to the Government of Pepsu, the property constituting the grant in favour of the appellant was not given to him. It is also alleged that the successor State of Punjab which had become responsible for honouring the obligations of the Government of Pepsu and of the former State of Nabha, did not hand over the suit land to the appellant, though it was granted to him by the Maharaja. The appellant then served on the Punjab State a notice under Section 80, Civil P. C., on April 28, 1960, but to no avail. The present litigation followed thereafter.

5. The suit was naturally resisted by the Punjab State. Some preliminary objections were taken in the written statement, the main objection being that the dispute between the parties arose out of the provisions of a Covenant, entered into and executed before the commencement of the Constitution of India by the Maharaja and by virtue of Article 363 of the Constitution, the Municipal Courts had no jurisdiction to adjudicate upon a dispute arising out of such a Covenant, especially when the alleged rights claimed by the appellant had not been recognised by the erstwhile Pepsu Government. Some more preliminary objections were also taken but they are not material at this stage as they are no longer the subject-matter of controversy in the present appeal. On facts, it was admitted that the land in suit known as 'Bir Ranadhai' was entered as such in the Revenue Records and this- land was State Land in the regime of the Maharaja. In regard to the grant contained in the crucial letter dated April 25, 1948. knowledge thereof was denied on the ground that the available State Records did not contain any copy or order on the basis of which such a letter purported to have been issued. It was further reiterated that the alleged grant in favour of the appellant was never recognised, accepted or acted upon by the Pepsu Government and, as such, was not binding on the respondent Punjab State. The claim of the appellant was, therefore, refuted. The replication filed by the appellant does not take his case any further and is a mere reiteration of the facts alleged in the plaint.

6. The united consideration of the pleadings of the parties resulted in the following issues;

(1) Whether the claim of the plaintiffis justiciable O. P.

(2) Whether the suit of the plaintiff iswithin limitation O. P.

(3) Whether in fact the letter of grant or gift dated 25th April, 1948 was ever written by the then Ruler and as such is binding on the present defendant O. P.

(4) Whether the document in dispute is a gift-deed or grant and is enforceable at law against the present defendant O. P.

(5) Relief.

7. The trial Court found all the above issues in favour of the appellant and decreed the suit in terms of the prayer made therein. The respondent State, however, carried an appeal before the District Judge, who upheld the finding of the trial Court on the issue pertaining to the objection regarding limitation. As regards issue No. 3, it appears that there was hardly any challenge as to whether the Maharaja had in fact written the letter dated April 25, 1948, but only the binding effect of this letter was mooted. The lower appellate Court found that the Maharaja had absolute powers over the disposal of the property within his territory and the grant of land in question made in favour of the appellant was perfectly in order and within the competence of the Maharaja. The objection contained in issue No. 4 in regard to the admis-sibility of the document which pertained to property worth more than Rs. 100/- was also repelled in the light of Sections 90(1)(d) and 17(2)(vii) of the Indian Registration Act, according to which all sanads, inam, title-deeds and other documents purporting to be or to evidence grants or assignments by Government, of land or of any interest in land, are exempt from the law of registration, The main point on which the parties grappled in the arena is as to whether the grant in question is enforceable against the respondent under the law. This point forms a part of issue No. 4. After consideration of the case law including decisions of the Supreme Court, the learned District Judge was of the view that the non-recognition of the rights of the appellant in regard to the grant envisaged in the letter dated April 25. 1948 was an act of State and adjudication upon the correctness or otherwise of such an act of State, whether it has reference to public rights or private rights, is beyond the jurisdiction of the Municipal Courts. It was, therefore, concluded that the grant in question was neither binding upon nor enforceable against the respondent. The suit of the appellant was consequently dismissed,

8. The present appeals were heard first by a learned single Judge, who considered the question involved being of importance and referred the same to a larger Bench and this is how the appeals are before us,

9. As already indicated, apart from the point which has been raised for the first time before us in appeal, the main point which falls for consideration is whether the claim of the appellant is justiciable before the Municipal Courts or not. It would, however, be expedient to deal in the first instance with the new point, referred to above. During the course of the arguments in these appeals, the learned Deputy Advocate-General on behalf of the State, raised a contention that there was actually no grant in favour of the appellant which could be enforced. By reference to the letter dated April 25, 1948, it has been urged that the phraseology of the document does not bring out the intention on the part of the Maharaja to transfer the ownership of the property in question in favour of the appellant. It is argued that all that the Maharaja intended, was to allow the appellant to use the 'Sir Ranadhai' as his Farm along with the brother of the appellant and there was no intention to transfer the proprietary rights in this property in their favour. The learned Deputy Advocate General sought support from Mohsin Ali v. State' of Madhya Pradesh, AIR 1975 SC 1518, which contained an observation that where two interpretations may be given to the grant, both of which are good, that which is 'most favourable to the Crown is in many cases preferred. The contention aforesaid is, however, not tenable for more than one reason, A reference to the pleadings of the parties would show that the interpretation required to be placed upon the letter was at no time disputed by the respondent. AH that was stated in para. 4 of the written statement, is that the alleged grant is not within the knowledge of the respondent. If the State was really serious to contest the interpretation of the document, an objection in this behalf ought to have been raised in the written statement. In the absence of such an objection, no specific issue on the point was framed and consequently the parties, particularly the appellant was denied opportunity to lead evidence on this point.

It may be mentioned here that during the trial of the case, the Maharaja was alive and was in' fact examined on commission. If the interpretation of the letter was in dispute, a clarification could have been sought from him at that stage. Even otherwise, we do not find any material which would indicate the conferment of only a limited grant. On the other hand, it is the admitted case of the parties that the grant was executed only a few days before the Maharaja ceded his territory to the Patiala and East Punjab States Union and if he really desired to benefit his brothers, there was no purpose in merely granting permission to, use the land temporarily. Even in Mohsin Ali's case (supra) cited by the learned Deputy Advocate-General, their Lordships of the Supreme Court observed that it is permissible to consider the surrounding circumstances and the occasion on which the grant was made as legitimate aids to construction of the document. Considering the matter from whichever angle, there is no difficulty in holding that no objection in regard to the interpretation of the letter is tenable at this stage of second appeal.

10. Coming to the brass tacks, the letter dated April 25, 1948, having been found to have been written by the Maharaja with the intention of grantjng the property to the appellant in perpetuity, the only other point which falls for consideration is whether such a grant is a valid one under the law. The point has not cropped up for the first time. In lact, it has rocked the judicial minds on earlier occasions and an exhaustive assessment of the matter has already been made by the Supreme Court, The learned counsel for the parties have indeed tried, to interpret these authorities with a view to cast a favourable reflection in support of their respective contentions, but a closer scrutiny of these authorities makes the matter quite lucid. As already noticed, there is hardly any contest in regard to the factual position. The Maharaja signed the Covenant on May 5, 1948 agreeing to the merger of his State with the Patiala and East Punjab States Union which was inaugurated on July 15, 1948. The grant in question was made on April 25, 1948, i. e., hardly ten days before the date on which the Maharaja signed the Covenant. It is also apparent from the evidence that no further steps were taken by the appellant in the matter of bringing on. the Revenue and other records, the factum of having acquired title to the property by virtue of the letter of the Maharaja. In fact, a serious claim to the property was made in Court for the first time by filing a suit on July 1'3, 1960, i. e., absolutely at the fag end of the limitation of twelve years. It is not the case of the appellant that during this period any approach was made to the Revenue Authorities for re-cording the ownership of the appellant in the relevant records. There is also no divergence of opinion on the point that the property in question was not the personal property of the Maharaja, nor was it included in the list of such properties prepared at the time of the merger. In fact, it was nothing but the property of the State over which the Maharaja had indeed the control and power of disposal as a Ruler of the State.

11. In support of the claim of the appellant, his learned counsel, Mr. F.C. Bedi, with the vehemence of a seasoned counsel, put forward two basic contentions. The first is that the land in dispute was vacant land and even though the appellant never took physical possession of the same, the letter of the Maharaja conferred complete title upon him without there being any need of ratification of the grant by the successor Governments of Pepsu or Punjab. In the alternative, it is contended that even if such ratification was necessary, the same was available in the Covenant entered Into between the Maharaja and the successor States. With a view to support these contentions, the learned counsel has referred at the outset to the Text entitled 'White Paper on Indian States'. Appendix XXXIX of the said Text contains the Covenant entered into by the Rulers of various States in this part of the country, including Nabha State, at the time of their merger into the new Patiala and East Punjab States Union. Article VI (c) of the Covenant recites that all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the Union. An argument is, therefore. built on the said provision that the Pepsu Government had by virtue of the Covenant accepted all the assets and liabilities of Nabha State which included the conferment of the grant by the Maharaja in favour of the appellant The argument, however, loses sight of an important aspect of the matter that the taking over of the territory of Nabha State by the successor Union and later on by the Punjab State was an 'act of State'. As to what is an 'act of State', has been considered and finally adjudicated upon by the Supreme Court in Promod Chandra Deb v. State of Orissa, AIR 1962 SC 1288. The ten basic propositions which finally emerged from a consideration of the case law on the point, were succinctly laid down in the said authority. The salient features of these propositions are that 'act of State' is the taking over of sovereign powers by a State in respect of territory which was not till then a part of its territory, either by conquest, treaty or cession, or otherwise, and further that an 'act of State' derives its authority not from a Municipal law but from ultra-legal or supra-legal means. As such, Municipal Courts have no power to examine the propriety or legality of such an act, whether the same has reference to public rights or to private rights. An important proposition laid down in this behalf is that even though according to ordinary principles of International Law private property of the citizens is respected by the new sovereign, but Municipal Courts have no jurisdiction to enforce such international obligations. In the same context, it was further laid down that even though by virtue of the treaty by which the new territory has been acquired, it may have been stipulated that the pre-cession rights of old inhabitants shall be respected, but such stipulations cannot be enforced by individusal citizens because they are no parties to those stipulations. The only exception made in regard to these rule is that the Municipal Courts recognisec by the new sovereign have the power and the jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise or acknowledge by legislation, agreement or otherwise. It would indeed be a question of fact to be determined as to whether the new sovereign had actually recognised those rights or not, such a recognition be-ing either express or implied from circumstances and evidence appearing from the mode of dealing with those rights by the new sovereign, A rider was, however, placed upon the aforesaid exception that in any controversy as to the existence of the right claimed against the new sovereign, the burden of proof lies on the claimant to establish that the new sovereign had recognised or acknowledged the right in question. The case in hand has to be adjudged in the light of these basic principles as laid down by the Supreme Court.

12. The main plank of arguments of the learned counsel for the appellant was an earlier decision of the Supreme Court in Virendra Singh v. State of Uttar Pradesh, AIR 1954 SC 447, a case containing facts to some extent similar to the one in hand. In that case, the Rulers of the erstwhile States of Charkari and Sairola which were independent States under the paramountcy of the British Crown had made absolute muafi grants of land before these States integrated into the United States of Vindihya pradesh which subsequently acceded to the Indian Dominion. The successor State of Uttar Pradesh, in consultation with the Govern' ment of India, revoked these grants. It was held that there could not be any confiscation of property, as an 'act of State' in an area which was being administered by the Dominion Government in all respects as a Chief Commissioner's Province when these properties had become a part of the State of Uttar Pradesh by virtue of the Provinces and States (Absorption of Enclaves) Order, 1950.

13. The decision of the Supreme Court in Virendra Singh's case (AIR 1954 SC 447) (supra) came for re-consideration in Slate of Gujarat v. Vora Fiddali Badrud-din Mithibarwala, AIR 1964 SC 1043. The historic decision contains an examination of every possible aspect of the matter by seven Hon'ble Judges of the Supreme Court. It is not necessary to dilate at length on the vai'ious views expressed by their Lordships but it would suffice to say that the majority opinion laid down, in more than clear terms that the conclusion reached in Virendra Singh's case (supra) in respect of the effect and continuity of an 'act of State' is not correct Of course, three Hon'ble Judges dissented from this view. Apart from other matters, the observations made in an earlier decision of the Privy Council were approved these being

'When a territory is acquired by a sovereign State for the first time that is an 'act of State'. It matters not how the acquisition has been brought about. It may be by conquest, it may be toy cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised Ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the Municipal Courts established by the new sovereign only such rights as that sovereign has through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitant could enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the Municipal Courts. The right to enforce remains only with the high contracting parties.'

These principles, when applied to the facts of the present case, leave no room for further debate on the point that any rights which the appellant may have acquired under the grant, by virtue of the letter of the Maharaja could subsist only if the same had been recognised by the subsequent sovereigns, i. e., Pepsu or the Punjab State which was never done.

14. Mr, Bedi tried to catch at straws by reference to certain observations in Madhav Rao Jivaji Rao Scindia v. Union of India, AIR 1971 SC 530. The case pertains to the order passed by the Government in respect of Rulers of former Indian States directing that with effect from the date of the order the Rulers of those States ceased to be recognised as such. The result of this order was the forthwith stoppage of privy purses received by the Rulers and the discontinuance of their personal privileges. The facts and the points for consideration in this case have no parallel with those in the present case. The dispute in the said case was between the Rulers of the States and the Government in regard to their claim for privy purses and personal privileges. Mr. Bedi, however, read a passage of this judgment of the Supreme Court with a view to contend that there was some departure from the rule laid down in Vora Fiddali's case (AIR 1964 SC 1043) (supra). A reading of the passage itself, however, negatives the contention. In para 129 of the judgment the rule laid down in that case was reiterated to the effect that the terms of the agreements and the obligations flowing from such agreements may not be enforced in the Municipal Courts unless the rights and obligations are recognised and accepted. Mr. Bed! has, however, relied upon a further observation that there can be no 'act of State' against its own citizen by the State. This observation was, however, made in its own context and cannot be read by dissenting the same from the ratio. In fact, at the end of this very para, it was observed that an 'act of State' vanishes when the new sovereign recognises either expressly or by implication the rights flowing from the reform and while holding so, Vora Fiddali's case (supra) was specifically reaffirmed. It cannot, therefore, be said that there has been any departure from the rule in that case.

15. In the result, the appellant having failed to prove that the grant in his favour has been recognised by the successor Governments, he cannot claim any benefit under the said grant in the Municipal Courts. The same result would flow In the connected case also, of which the facts are absolutely akin. Regular Second Appeals Nos. 1457 and 1458 of 1963 are accordingly dismissed, but with no order as to costs.

Bhopinder Singh Dhillon, J.

16. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //