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D.S. Meramwala Bhayawala Vs. Bai Shri Amarba Jethsurbhai - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtGujarat High Court
Decided On
Judge
Reported in(1968)9GLR609
AppellantD.S. Meramwala Bhayawala
RespondentBai Shri Amarba Jethsurbhai
Cases ReferredBai Sonba Hathibhai v. Sarvaiya Kasalsang Hakabhai and Ors.
Excerpt:
- - bhayavala also, like other rulers of indian states, became an independent sovereign ruler of his estate. 12 of 1954 in the court of the assistant judge, gondal, against amarbai claiming that the properties held by bhayavala at the time of his death were ancestral properties in which meramvala had acquired an interest on adoption and, therefore, on the death of bhayavala the said properties had devolved on him by survivorship as the sole surviving co-parcener and bhayavala was not entitled to dispose of the said properties by will as he bad purported to do. 15 of 1954 in the court of the assistant judge, gondal, on 13th march 1954, for a declaration that she was an heir under the will of bhayavala and was entitled to administer the properties left by bhayavala as also to use and.....p.n. bhagwati, j.1. prior to 15th august 1947 khari-bagasara was a fifth class jurisdiction estate under the paramountcy of the british crown. one ram mulu was the chief of the estate until sometime in 1943 when he died. he left him surviving two sons, namely, bhayavala and valeravala. the rule of primogeniture governed the succession at the estate at the material time and, therefore, bhayavala who was the eldest son succeeded to the estate; valeravala, the younger son being given village khari by way of kapal giras, that is, maintenance, during the life time of bhayavala. bhayavala was accordingly the chief of the estate on 15th august 1947 when the indian independence act, 1947, came into force. by virtue of section 7 of the indian independence act, 1947, the suzerainty of the british.....
Judgment:

P.N. Bhagwati, J.

1. Prior to 15th August 1947 Khari-Bagasara was a Fifth Class jurisdiction Estate under the paramountcy of the British Crown. One Ram Mulu was the Chief of the Estate until sometime in 1943 when he died. He left him surviving two sons, namely, Bhayavala and Valeravala. The rule of primogeniture governed the succession at the Estate at the material time and, therefore, Bhayavala who was the eldest son succeeded to the Estate; Valeravala, the younger son being given village Khari by way of Kapal Giras, that is, maintenance, during the life time of Bhayavala. Bhayavala was accordingly the Chief of the Estate on 15th August 1947 when the Indian Independence Act, 1947, came into force. By virtue of Section 7 of the Indian Independence Act, 1947, the suzerainty of the British Crown over the Indian States lapsed and the Indian States were released from their obligations to the British Crown and attained the status of truly independent sovereign State possessing and enjoying not only internal but also external independence. Bhayavala also, like other rulers of Indian States, became an independent sovereign ruler of his Estate. This position, however, did not last long for, sometime thereafter the exact date is unfortunately not on record-Bhayavala signed an instrument of accession in favour of the Government of India in the form prescribed in Appendix VIII to the White Paper on Indian States. Bhayavala had a wife named Amarbai but they had no issue and Bhayavala, therefore, adopted on 18th November 1947, Meramvala, the eldest son of his brother Valeravala. Valeravala had three sons of whom Meramvala was the eldest and Meramvala was given by him in adoption to Bhayavala. Towards the end of January 1948, a covenant was entered into by the rulers of Kathiawar States for the formation of a new State, namely, the United State of Kathiawar and this new State came into being on 15th February 1948. The covenant was signed by the rulers of certain important larger States and Clause 1(b) of Article 11 of the covenant provided that the covenanting States would include in the United State of Kathiawar any other State, taluka or Estate, the ruler or talukdar of which agrees with the approval of the Government of India to the merger of that State, taluka or Estate in the United State of Kathiawar. Pursuant to Clause 1(b) of Article II of the covenant, the talukdars of several talukas and Estates signed merger agreements with the approval of the Government of India agreeing to merge their respective talukas and estates in the United State of Kathiawar. The merger agreement assumed two forms: one provided for payment of privy purse to the talukdar while the other entitled the talukdar to full ownership, use and enjoyment of all the properties vested in him which were not being used for the benefit of the public or any section thereof in the taluka or estate. The former type of merger agreement may, for the sake of convenience, be referred to as the privy purse agreement while the latter type may be referred to as the Jamindari agreement. Bhayavala as the Chief of his Estate, signed a Jamindari agreement in favour of the United State of Kathiawar in the beginning of March 1948 and the estate accordingly became merged with the United State of Kathiawar. All the properties forming part of the Estate which were not being used for the benefit of the public or any section thereof, however, remained vested in Bhayavala and Bhayavala was entitled to full ownership, use and enjoyment of the same. These properties were, therefore, entered in the name of Bhayavala in the revenue records introduced by the United State of Kathiawar. The United State of Kathiawar was subsequently renamed as the State of Saurashtra and on the coming into force of the Constitution of India on 26th January 1950, it became a Part B State. Bhayavala died on 17th September 1933 having duly made and published his last will dated 7th June 1933. He appointed his widow Amarbai as the executrix under the will and Amarbai accordingly made an application dated 4th Junuary 1954 for probate of the will. The application for probate was opposed by Meramvala, the adapted son of Bhayavala by entering a caveat but ultimately, by an order dated 17th April 1954, probate was ordered to be issued to Amarbai. In the meantime, however, on 22nd March 1954, Meramvala filed a suit being Suit No. 12 of 1954 in the Court of the Assistant Judge, Gondal, against Amarbai claiming that the properties held by Bhayavala at the time of his death were ancestral properties in which Meramvala had acquired an interest on adoption and, therefore, on the death of Bhayavala the said properties had devolved on him by survivorship as the sole surviving co-parcener and Bhayavala was not entitled to dispose of the said properties by will as he bad purported to do. Meramvala accordingly sought a declaration that Bhayavala was not entitled to make a will and the will made by him was accordingly void and inoperative and that Amarbai had no right to administer the properties left by Bhayavala in accordance with the provisions of the will and also prayed for perpetual injunction restraining Amarbai from obtaining a probate of the will or from administering the said properties in accordance with the provisions contained in the will. Amarbai also in her turn filed a suit being Suit No. 15 of 1954 in the Court of the Assistant Judge, Gondal, on 13th March 1954, for a declaration that she was an heir under the will of Bhayavala and was entitled to administer the properties left by Bhayavala as also to use and enjoy the same. It appears that prior to the filing of the suit Meramvala had taken possession of certain heads of cattle and one playmouth car belonging to the Estate of Bhayavala and he was also using the front portion of the upper storey of Darbargadh. Amarbai, therefore, prayed in the suit that Meramvala should be directed to hand over possession of these items of property to her. Amarbai also sought a perpetual injunction restraining Meramvala from obstructing her in the administration, possession and enjoyment of the properties left by Bhayavala as also from recovering or realising any amount from the Government or the tenants in respect of lands forming part of the Estate of Bhayavala. Maintenance at the rate of Rs. 1,000/- per month was also claimed by Amarbai in the alternative in the event of it being held that Meramvala was entitled to the Estate of Bhayavala. These two suits covered substantially identical grounds and they were, therefore, tried together by the Civil Judge, Senior Division, Gondal, to whom they were transferred on the new judicial set up being brought into force in Saurashtra after integration of Saurashtra with Bombay. The learned trial Judge, by a common judgment dated 30th April 1960, held that Meramvala was a validly adopted son of Bhayavala but the properties in the hands of Bhayavala were not ancestral properties and Meramvala did not, therefore, acquire an interest in the said properties on adoption and Bhayavala was entitled to dispose of the said properties by will. The claim of Amarbai as executrix under the will of Bhayavala was accordingly upheld and the main relief claimed by Amarbai was awarded to her. It may be mentioned that prior to the filing of the suit by Amarbai, Meramvala had already collected a sum of Rs. 67, 000/- from the Government and the tenants in respect of some of the agricultural lands forming part of the estate of Bhayavala and Amarbai had, therefore, claimed a declaration that she was entitled to this amount collected by Meramvala. She had, however, not prayed for recovery of this amount from Meramvala. But even so, the learned trial Judge directed Meramvala to hand over this amount to Amarbai along with other amounts which might have been subsequently realised by him on account of the estate of Bhayavala. Amarbai's suit was accordingly decreed and Meramvala's suit was dismissed. Meramvala thereupon preferred two appeals, one being First Appeal No. 764 of 1960 in this Court against the decree in Amarbai's suit and the other being First Appeal No. 36 of 1960 in the District Court, Amreli, against the decree in Meramvala's suit. Since both the appeals raised identical questions of law and fact, Meramvala made an application, being Civil Application No. 1201 of 1960 in this Court praying that First Appeal No. 36 of 1960 pending in the District Court, Amreli, be stayed until the final disposal of First Appeal No. 764 of 1960. First Appeal No. 36 of 1960 pending in the District Court, Amreli, was accordingly stayed by me by an order made on 12th January 1960. But subsequently, another order was made by this Court transferring that appeal to this Court and on transfer that appeal came to he numbered First Appeal No. 425 of 1966. That is how these two appeals have come up for hearing before us and since they are directed against a common judgment of the trial Court, it would be convenient to dispose them of by a single judgment.

2. The first question which arises in these appeals is the question relating to the factum and validity of the adoption of Meramvala. So far as the factum of the adoption is concerned, it was challenged on behalf of Amarbai in the trial Court on the ground that the ceremony of actual giving and taking in adoption which is essential to a valid adoption was not gone through in the case of Meramvala. But this challenge was negatived by the learned trial Judge who on a consideration of the voluminous evidence led by both sides on the point came to the conclusion that the ceremony of actual giving and taking was performed. When these appeals reached hearing before us, Mr. S.B. Vakil on behalf of Amarbai fairly and frankly conceded that the conclu sion of the learned trial Judge on this point was right and he was not in a position to dispute its correctness. The factum of adoption must, therefore, be held to be established. That leaves the question of its validity. Mr. S.B. Vakil urged that the adoption was invalid and there were two grounds on which he based his submission. One was that Meramvala being the eldest son of Valeravala could not be taken in adoption but this ground must be rejected in view of the decision of a Division Bench of the Bombay High Court in Kashibai v. Tatia 7 Bombay 221. The second ground was that the adoption was made without obtaining the previous sanction of the Government of India, but this ground is also unsustainable. It was based on the practice followed by the British Crown as the paramount power to recognise an adopted son as a successor in preference to the collaterals in default of natural heirs provided the adoption was made in virtue of the authority conferred under an adoption Sanad granted by the British Crown. Of course the adoption Sanads were granted only to Chiefs of States 1st and 2nd Class but in the case of States below the 2nd Class too, an adoption was not recognised as a successor unless the adoption was made with the previous permission of the British Crown. One of the functions of the British Crown as the paramount power was to settle successions in Indian States. It was laid down in 1891 that 'every succession must be recognised by the British Government and no succession is valid until recognition has been given'. In 1917, however, this view was partially modified and in a 'Memorandum on the ceremonies connected with successions' issued by the Government of India, it was laid down that where there is a natural heir in the direct line, be would succeed as a matter of course and the recognition would be purely formal but the principle was once again asserted that su cession to be valid must be recognised for 'the formal recognition of a new Ruler is in all cases, a necessary concomitant of the act of succession'. It was in exercise of this function that the British Crown as the paramount power insisted that it would not recognise an adopted son as the successor unless the adoption was made pursuant to an adoption Sanad or in any event with prior permission, subject of course to certain conditions which are not material. The suzerainty of the British Crown, however, lapsed on 15th August 1947 by reason of Section 7 of the Indian Independence Act, 1947, and on the lapse of suzerainty the Indian States became independent sovereign States released from their obligations to the British Crown and all functions exercisable by the British Crown at that date with respect to Indian States and all powers, rights, authority or jurisdiction exercisable by the British Crown at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise also came to an end. This suzerainty was not inherited by the Government of India nor did any of these functions, powers, rights authority or jurisdiction devolved on the Government of India. The ruler Indian States were, therefore, not obliged to obtain the permission of the Government of India. Mr. S.B. Vakil, however, relied on the Instrument of Accession executed by Bhayavala and urged that under this Instrument of Accession, Bhayavala authorized the Government of India to exercise in relation to his Estate 'all the powers and jurisdiction which were exercisable' before 15th August 1947 'by His Majesty's representative for the exercise of the functions of the Crown in its relations with Indian States' and, therefore, just as prior to 15th August 1947 no valid adoption could be made without the prior permission of the British Crown, so also after the execution of the Instrument of Accession, no valid adoption could be made without the prior permission of the Government of India. But this contention, even if valid, cannot help Mr. S.B. Vakil unless it is shown that the adoption of Meramvala was made after the execution of the Instrument of Accession by Bhayavala and unfortunately for Amarbai there is no evidence on record to show as to when the Instrument of Accession was executed by Bhayavala whether before or after 19th November 1947, being the date of the adoption. It cannot, therefore, be held that the adoption of Meramvala was invalid in the absence of prior permission of the Government of India and the contention of Mr. S.B. Vakil directed against the validity of the adoption must be rejected.

3. That takes us to the next question which is the more important one, namely, whether the Khari-Bagasara Estate in the hands of Bhayavala was ancestral coparcenary property in which Meramvala acquired an interest by adoption. If Meramvala acquired an interest by adoption in the Khari-Bagasara Estate, then subject to one or two other small contention urged on behalf of Amarbai, which we shall mention a little later, Bnayavala would have no right to dispose of by will any of the properties held by him and on the death of Bhayavala, Meramvala would succeed to the properties by survivorship as the sole surviving coparcener. But, contended Mr. S.B. Vakil, Meramvala through an adopted son, had no interest in the Khari-Bagasara Estate so long as Bhayavala was alive and there was. therefore, no restraint on the power of alienation of Bhayavala inter vivos or by will. There were two grounds on which this contention was rested: one was that the Khari-Bagasara Estate was a sovereign Estate and quite irrespective of the question whether on the death of the Chief for the time being, it was inherited by a single heir according to the rule of primogeniture or by several heirs according to the Kathi rule of division-a rule to which we shall have occasion to refer-the ordinary incidence of co-parcenary property did not apply to the Khari-Bagasara Estate and the other was that in any event the Khari-Bagasara Estate was governed by the rule of primogeniture and on these two grounds it was urged that so long as the Chief who was for the time being the holder of the Khari Bagasara Estate was alive, no member of his family, in fact no one else, had any interest in the Khari-Bagasara Estate. Both these grounds are in our view well-founded and it must beheld that though Meramvala was an adopted son, he did not acquire an interest in the Khari-Bagasara Estate on adoption and he had no interest in the Khari-Bagasara Estate during the lifetime of Bhayavala. Our reasons for saying so are as follows.

4. The first ground requires an examination of the nature and character of the Khari-Bagasara Estate. A brief history of the Khari Bagasara Estate tracing its origin is to be found in a book called 'The Ruling Princes, Chiefs and Leading Personages in the Western India States Agency'. This book is published by the Government of India and the second edition of this book has been corrected upto 31st December 1933. It gives in a concise form relevant historical material relating to various States, Talukas and Estates in the Western India States Agency and at page 302 we find a brief resume of the ancient and present history of the Khari-Bagasara Estate. This brief resume shows that Bagasara was conquered by one Bhaya Manchha, an ancestor of Bhayavala in 1525 A.D. and he established himself as the Ruler of the Khari-Bagasara Estate. The book does not give any information regarding the subsequent history of the Khari-Bagasara Estate except that the Khari-Bagasara Estate descended from generation to generation until the beginning of the Nineteenth Century when it was found to be a tribute-paying estate paying a tribute of a certain specified amount to the Gaekwad. There is, however, no doubt that the Khari-Bagasara Estate was a sovereign Estate and the Chief of the Khari-Bagasara Estate a sovereign Ruler within his own territories liable only to pay tribute of a specified amount to the Gaekwad. There were many other similar States, Estates and Talukas in Kathiawar whose Chiefs were sovereign Rulers within their own territories but who paid tribute in part to the Peshwa and part to the Gaekwad. To quote the words of the Judicial Committee of the Privy Council in Hemchand v. Sakarlal 8 Bom. L.R. 129; 'Prior to the year 1802 Kathiawar consisted of a large number of States, independent of one another, each governed by its own Chief, but paying tribute in part to the Peshwa and in part to the Gaekwad of Baroda'. The Chiefs of these States, Talukas and Estates were sovereign Rulers within their own territories as observed by Colonel Walker in paragraph 58 of his report dated 20th July 1806:

The power of life and death and the administration of justice within their respective villages is possessed by all.

By Treaties of 1802 and 1817, the Peshwa's rights were ceded to the East India Company and in 1820 the Gaekwad's rights were also ceded. The policy which the British Government decided to follow vis-a-vis the States, Talukas and Estates in Kathiawar on cession of the rights of the Peshwa and Gaekwad was stated as follows in the despatch dated 20th July 1830 addressed by the Court of Directors to the Bombay Government:

All the rights we possess in Kathiawar we acquired from the Peshwa and Gaekwad, from the former by conquest and from the latter by mutual arrangement; these rights we considered as limited to the exaction of tribute with the powers of taking such measures as might be essential to the security of that tribute. Beyond this we did not propose to interfere and we determined to treat the Kathiawar tributaries as independent Chieftains entitled to the uncontrolled exercise of the powers of Government within their own territories and subject only to the obligation of not molesting our subjects, our allies or one another and paying the stipulated tribute to the Gaekwad and ourselves.

This despatch leaves no doubt that in the early years of British connection with Kathiawar, the Chiefs of various States, Talukas and Estates in Kathiawar were sovereign Rulers 'entitled to the uncontrolled exercise of the powers of Government within their own territories' subject only to certain obligations which did not substantially detract from their sovereignty. As observed by Captain Webb in his book on 'Political Practice in Kathiawar' which is a standard book on the subject containing a veritable mine of information:

As a matter of undeniable fact the Chiefs of Kathiawar, without distinction, did actually enjoy the fullest powers of internal administration during the first years of British connection with the Province.

But in course of time it was found necessary for the British Government to extend its political control over the States, Talukas and Estates in Kathiawar and the British Government as the paramount power exercised political control over these States, Talukas and Estates in varying degrees according as the circumstances require. The political control thus exercised was based on treaties, engagements, Sanads as supplemented by usage and sufferance and by decisions of the Government of India and the Secretary of State embodied in Political Practice and it came to be known as paramountcy. The rights of the paramount power claimed in exercise of the paramountcy covered matters both external and internal and a brief and accurate summary of them is to be found in paragraphs 42 to 44 of the White Paper on Indian States. The British Government also in exerezise of the paramountcy reorganized the jurisdiction of the States, Talukas and Estates in Kathiawar 'leaving plenary powers with those States which were large enough and wealthy enough to bear the cost of proper judicial machinery and to reduce the powers of the others within their means and capabilities, reserving to the Paramount Power the exercise of residuary jurisdiction'. This reorganization was carried out in 1866 and the general nature of the reorganization is very concisely described in 6 Aitcheson 183: 'The administration was reorganised by arrangement with the Chiefs in Kathiawar and defining their powers and the extent of their jurisdiction'. Under the arrangement then made, modified as it was in some respects by subsequent orders, the Chiefs of the First Class who were not many in number but who ruled over wide areas, could try any person except a British subject, even for a capital offence, without any permission from the political agency, and their civil jurisdiction was unlimited. The jurisdiction of the Chiefs in the Second Class, who also ruled over wide areas, was very nearly the same as that of those in the First. The Chiefs in the Third and Fourth Classes had still very wide powers. These were much less in the following classes, down to the Seventh in which the Chiefs had very trifling criminal and no civil jurisdiction. The result of this reorganization was that certain limitations were imposed by the British Government as the paramount power on the jurisdiction of the States, Talukas and Estates of Kathiawar and the residuary jurisdiction was reserved to itself. But despite the limitation of their jurisdiction brought about by this reorganization and despite the paramountcy of the British Government, the States, Talukas and Estates of Kathiawar continued to be sovereign States. The following passage from the Government Resolution No. 4145, dated 10th June 1901 clearly bears out this position:

Subject to the supremacy of the Paramount Power, the Chiefs and Talukdars of Kathiawar do enjoy the position and are invested in many respects, varying in different degrees, with the rights and attributes of 'Government'. The fact that in numerous small Talukas the 'Civil arid Criminal' jurisdiction is exercised not by themselves but by the Agency does not necessarily affect (of. Government Resolution No. 6421, dated the 12th November 1898) the State rights of the Talukdars concerned except the particular right of exercising the jurisdiction. The presumption is that in regard to such matters as rights of resumption, priority of State claims, etc., the position of the smaller Talukdars (whether jurisdictional or non- jurisdictional) is legally the same as that of their more powerful neighbourers, the difference being that for the enforcement of their claims they have to apply to the Officers and Courts of the Agency instead of tribunals or an executive of their order.

Mr. Crerar also summed up the position as under in an office note forwarded under the Political Secretary's demi-official letter N.P. 134, dated the 25th November 1918:

Our political theory is that an inherent sovereignty resides in all Indian States, which is not derived, like our own jurisdiction, from the sovereignty of the Crown. In fact, however, the sovereignty of all Indian States is in greater or lesser degree circumscribed either by treaty, agreement or established precedent, and is further subject to a general executive discretion of the Paramount Power in particular cases. Jurisdiction therefore subsists in the States except in so far as it has been limited or suspended by the Paramount Power.

Captain Webb also concluded his discussion of the jurisdictional powers of States, Talukas and Estates of Kathiawar by saying:

To conclude, therefore, it would seem that the jurisdiction enjoyed by the States of Kathiawar is by nature plenary and inherent, though at times the Paramount Power, in exercise of the duties laid upon it by its over-lordship, has per force to limit it, and to reserve to itself such residuary jurisdiction as the size, wealth, etc., of a given Chief indicate to be beyond his capabilities.

It is, therefore, indisputable that the Chiefs of the States', Talukas and Estates of Kathiawar were sovereign Rulers within their own territories save in so far as their sovereignty was limited by the paramountcy of the British Government. 'Sovereignty' as observed by Sir Henry Maine in 1864 in his minute on Kathiawar: 'is a term which, in international law, indicates a well ascertained assemblege of separate powers or privileges. The rights which form part of the aggregate are specifically named by the publicists who distinguish them as the right to make war and peace, the right to administer civil and criminal justice, the right to legislate and so forth. A sovereign who possesses the whole of this aggregate of rights is called an independent sovereign; but there is not, nor has there ever been, anything in international law to prevent some of those rights being lodged with one possessor, and some with another. Sovereignty has always been regarded as divisible', and in the case of the Chiefs of States, Talukas and Estates of Kathiawar, there was division of sovereignty between them and the British Paramount power.' Holdsworth in his article on the Indian States and India in 46 Law Quarterly Reveiew 407 also expressed the same view and observed that: 'It is because the Princes are, to a greater or a lesser extent, sovereign within their own dominions, that the legal aspect of the relationship between them and the Paramount Power owe something to the rules and concepts of International Law, and could be characterised by Sir Henry Maine as quasi-international. (Minutes on Kathiawar, page 188). Professor Westlake in his article in 26 Law Quarterly Review 314 and Sir Frederick Pollock in his article in 27 Law Quarterly Review 889 also agreed with Henry Maine attributing a quasi-international Character to the relationship. Holdsworth also observed at page 71 of his article in the Law Quarterly Review that: 'This division of sovereignty between the Indian States and Paramount Power, which gives to the relations between the Paramount Power and the States its quasi-international character, is a feature of all protectorates.' This view also finds support in the decision of the Judicial Committee of the Privy Council in Hemchand v. Sakarlal (supra.) The Judicial Committee of the Privy Council clearly pointed out in this decision that Kathiwar was foreign territory: it was not British territory nor was it within the King's Dominions. To quote the words of Sir Arthur Wilson delivering the opinion of the Privy Council:

Many and various as have been the forms of intervention by the British Indian powers in the affairs of Kathiawar, and large as has been the political control exercised over the province, any assertion of territorial sovereignty has been avoided. No Legislative power over it has ever been claimed.

The power to make laws for the subjects was always vested in the Chief of the State, Taluka or Estate though it was subject to political control by the British Government. The following extract from an office-note prepared by Mr. Cerar a copy of which was forwarded to the Agency under the Political Secretary's demi-official letter N.P. 134, dated the 25th November 1918 makes this position clear: 'In States of limited powers, the extent of their civil and criminal jurisdiction has been defined. Their powers to legislate have not been defined or restricted and they must accordingly be held to exist unimpaired.' The right to make laws for the subjects is an essential attribute of sovereignty and the Chiefs of the States, Talukas and Estates of Kathiawar clearly and indubitably possessed this attribute. It must also be noticed that on the lapse of suzerainty the States, Talukas and Estates of Kathiawar admittedly became independent sovereign States released from their obligation to the British Crown and this could not have been possible unless they were sovereign States subject to the paramountcy of the British Crown. If the Chiefs of these States, Talukas and Estates were not sovereign Rulers within their territories, how could they execute an Instrument of Accession in favour of the Dominion of India and how could they sign a merger agreement ceding their sovereignty to the United State of Kathiawar? It was not disputed on behalf of Meramvala-in fact it was his contention that the merger agreement signed by Bhayavala was an act of State and no reliance could, therefore, be placed upon it by Amarbai-and this clearly postulates that Bhayavala was the sovereign Ruler of the Khari-Bagasara Estate. There is, therefore, no doubt that the Khari-Bagasara Estate was a sovereign Estate and the Chief of the Khari-Bagasara Estate for the time being was the sovereign Ruler within his own territories subject to the paramountcy of the British Crown prior to 15th August 1947 and completely independent after that date.

5. If the Khari-Bagasara Estate was a sovereign Estate, it is difficult to see how the ordinary incidents of ancestral co-parcenary property could be applied to that Estate. The characteristic feature of ancestral co-parcenary property is that members of the family acquire an interest in the property by birth or adoption and by virtue of sash 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 the 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 virtue 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 limitations on his powers in relation to the Estate. As a sovereign ruler he would be the full and complete owner of the Estate entitled to do what he likes with the Estate. During his lifetime no one else can claim an interest in the Estate. Such an interest would be inconsistent with his sovereignty. To grant that the sons acquire an interest by birth or adoption in the Estate which is a consequence arising under the municipal law would be to make the Chief who is the sovereign Ruler of the Estate subject to the municipal law. Besides, if the sons acquire an interest in the Estate by birth or adoption, they would be entitled to claim the rights enumerated above but these rights cannot exist in a sovereign Estate. None of these rights can be enforced against the Chief by a remedy in the municipal Courts. The Chief being the sovereign Ruler, there can be no legal sanction for enforcement of these rights. The remedy for enforcement of these rights would not be a remedy at law but resort would have to be taken to force, for the Chief as the sovereign Ruler would not be subject to muncipal law and his actions would not be controlled by the municipal Courts. Now it is impossible to conceive of a legal right which has no legal remedy. If a claim is not legally enforceable, it would not constitute a legal right and, therefore, by the very nature of a sovereign Estate, the sons cannot have these rights and if these rights cannot exist in the sons, it must follow as a necessary corollary that the sons do not acquire an interest in the Estate by birth or adoption. Legal enforce ability apart, even as a matter of exercise of political control, it does not appear that during its paramountcy the British Government recognised any interest of the sons in the Estate during the lifetime of the Chief or the existence of any of these rights in the sons qua the Estate. We do not find a single instance where in the exercise of its political control as the paramount power the British Government recognised the sons to have any interest in the Estate or enforced such interest by partitioning the Estate amongst the Chief and his sons during the lifetime of the Chief. We were taken through large parts of Captain Webb's Political Practice in Kathiawar and the report of Colonel Walker on the District of Kathiawar Proper dated 7th February 1803 was also cited before us, but in all these dissertations on the subject is there any mention of sons having an interest in the Estate while the Chief is alive. Colonel Walker in paragraph 54 of his report says: 'In consequence of the practice among the Kattis of dividing property equally among all the heirs, a great number of sharers arose at Jasdan, of whom the present Chief was one.' Here he deliberately and advisedly uses the word 'heirs' indicative of succession by inheritance and does not speak of succession by survivorship. Further, in paragraph 83 also he refers to the 'peculiar mode of inheritance' prevalent among the Kattis. Nowhere do we find any reference to the sons having an interest in the Estate during the lifetime of the Chief or the sons succeeding to the Estate by survivorship on the death of the Chief. The political principles asserted by the British Government as the paramount power, namely, (1) that no succession in an Estate is valid until recognized by the British Government and (2) that an adopted son would not be recognized as a successor unless the adoption is made pursuant to an adoption sanad or at any rate with the prior approval of the British Government also show that the British Government as the suzereign power did not regard the sons as having an interest in the Estate by birth or adoption, It is also significant that when partial sovereignty was ceded under Instruments of Accession and full sovereignty was ceded under merger agreements, the Instrument of Accession and merger agreements were signed only by the Chiefs of the Estates and not by their sons. It is, therefore, clear that, whether regarded from the point of view of enforceability at law or regarded from the point of view of enforceability by the paramount power in exercise of its political control, the sons do not have an interest in the Estate by birth or adoption and none of the rights arising from community of interest inheres in the sons. Even where the rule of primogeniture has not been adopted and the Kathi rule of division applies, the sons do not acquire an interest in the Estate by birth or adoption. It is only on death of the Chief that the sons inherit the Estate in equal shares: till the death of the Chief, they have no interest in the Estate. Meramwala did not therefore acquire an interest in the Khari-Bagasara Estate by adoption and he was not entitled to restrain Bhayawala from alienating the Estate or any part thereof inter vivos or by will. Now it was not disputed on behalf of Meramvala that if prior to merger the Estate did not partake of the character of ancestral coparcenary property, the properties left with Bhayawala under the merger agreement would not be ancestral coparcenary properties: if Meramvala did not have any interest in the Estate prior to merger, he would have no interest in the properties which remained with Bhayavala under the merger agreement. It was not the case of Meramvala-and it could not be the case since the merger agreement would be an act of State-that as a result of the merger agreement any interest was acquired by him in the properties held by Bhayavala. Bhayavala was, therefore, the full owner of the properties held by him and was competent to dispose of the same by will.

6. This conclusion renders it unnecessary to examine the second branch of the contention of Mr. S.B. Vakil based on the rule of primogeniture but since it was debated before us at considerable length, we think it desirable that we should express our opinion on it. The argument of Mr. S.B. Vakil under this branch was that succession in the Khari-Bagasara Estate was governed by the rule of primogeniture and, therefore, even if Hindu Law applied, the Khari-Bagasara Estate was not held in co-parcenary and no member of the family acquired an interest in the Khari-Bagasara Estate by birth or adoption and the Chief for the time being was entitled to alienate the Estate by gift or by will. Mr. I.M. Nanavati on behalf of Meramvala contested the validity of this argument on two grounds. One was that succession was not governed by the rule of primogeniture but the Kathi rule of division applied and the other was that even if the rule of primogeniture governed succession, that did not exclude the other incidents of ancestral coparcenary property and the sons were entitled to restrain the Chief from alienating the Estate or any part thereof inter vivos or by will. The first ground was objected to by Mr. S.B. Vakil and he urged that Meramvala was not entitled to contend that succession in the Estate was governed by the Kathi rule of division and not by the rule of primogeniture. He pointed out that the case of Meramvala as laid in the plaint was that the rule of primogeniture applied to the Estate as a customary rule of succession and it was, therefore, not open to Meramvala to put forward a contrary case in the appeals. Now if we turn to the plaint of Meramvala in his suit, we find that there is a specific averment in the plaint that succession in the Estate was governed by the rule of primogeniture and the Estate was an impartible Estate. Vide paras 5 and 8 of the plaint, So also in his written statement in Amarbai's suit, Meramvala clearly averred that the rule of primogeniture was applied to the Estate and after the application of the rule of primogeniture whenever succession opened, the Estate was inherited bym the eldest son and Jiwai, that is, maintenance only was given to the widow. Vide paras 4 and 13 of the written statement. The case of Maramvala in the pleadings before the trial Court, therefore, was that the rule of primogeniture was applied to the Estate and succession in the Estate was consequently governed by the rule of primogeniture. This case was amplified and supported by instances in the evidences of Meramvala. Meramvala categorically stated in his evidence that the Estate was impartible and the rule of primogeniture governed succession in the Estate. Vide paras 265 and 266. The rule of primogeniture, according to his evidence in paragraph 313 was applied from 1932-33 and since then it was uniformly and consistently followed. Amarbai in her written statement in Meramvala's suit denied that the rule of primogeniture applied as a customary rule of succession but she agreed that it was applied to the Estate by the paramount power in 1933 and that it was, therefore, applicable since that time. Her case however was that since the rule was applied by an act of the paramount power, it ceased to apply on lapse of paramountcy. Vide paragraph 13 of the written statement. It was thus common ground between the parties that the rule of primogeniture was applied to the Estate sometime in 1932-33 and it governed succession in the Estate since that time and the only point in dispute was whether, on the lapse of paramountcy, the Estate ceased to be governed by the rule of primogeniture. The contention of Meramvala on this point was accepted by the trial Court and it was held that even after the lapse of paramountcy, the Estate continued to be governed by the rule of primogeniture. Meramvala having succeeded in the case put forward by him before the trial Court, cannot now be permitted to go back upon it: he cannot challenge the decision which he invited the trial Court to reach on the point. Mr. I.M. Nanavati relied on the decision of the Supreme Court in Firm Shrinivas Ram v. Mahabir Prasad : [1951]2SCR277 where the view has been taken that even where the plaintiff fails to establish the Case put forward by him, be can still ask the Court to pass a decree in his favour on the case of the defendant, but we fail to see how this decision can apply to the present case. The position would have been different if Meramvala had failed to establish his case before the trial Court and he was asking the Court either in the suit or in the appeal to give him relief on the basis of the case of Amarbai. The decision of the Supreme Court would then have helped Meramvala but here the case put forward by Meramvala was accepted by the trial Court and Meramvala is seeking to challenge the decision of the trial Court accepting his case. That, we are afraid, he cannot do if Amarbai is accepting the decision of the trial Court on the point as we find she is. Moreover, in any view of the matter, Meramvala cannot urge any contention in the appeals contrary to what was common ground between the parties before the trial Court and he cannot be heard to say as he how seeks to do that the rule of primogeniture was not applied as a general rule of succession to the Estate in 1932-33 but that it was only applied ad hoc on the occasion of each succession after taking into account the circumstances prevailing at the time of such succession. Furthermore, it may be noticed that according to the argument urged on behalf of Maramvala-an argument the merits of which we shall examine a little later-the effect of the application of the rule of primogeniture by the paramount power was only to eclipse the rights of the coparceners in the Estate which was coparcenary property and on lapse of paramountcy, the shadow of the eclipse was removed and the rights of the coparceners once again sprang into full force and effect. If this argument were valid, the consequence would be that there would be coparcenary not only of Bhayavala and Meramvala but Valeravala and his two other sons would also be within the coparcenary. But according to the case of Meramvala as laid in the plaint, the coparcenary consisted only of Bhayavala and Meramvala and on the death of Bhayavala, Meramvala succeeded to the properties by survivorship as the sole surviving coparcener. We cannot, therefore, entertain the argument that on lapse of paramountcy the Estate ceased to be governed by the rule of primogeniture. To entertain such an argument would be to permit Meramvala to change the basis of his claim from a sole surviving coparcener in a coparcenary consisting of Bhayavala and himself to a coparcenary in a larger coparcenary consisting of Bhayavala, Valeravala and their respective sons. We are, therefore, of the view that it is not open to Meramvala to contend in the appeals that the rule of primogeniture did not apply to the Estate as a general rule of succession and that even if it did, it ceased to govern succession in the Estate on the lapse of paramountcy. On this view it would be unnecessary to consider the merits of the rival contentions on the point but for reasons which we have already set out we would proceed to examine the rival contentions and express our opinion on their validity.

7. The first question which arises for consideration is whether the rule of primogeniture was applied to the Estate in 1932-33 as a general rule of succession applicable in all cases of future succession or It was applied ad hoc on the occasion of each succession after taking into account the circumstances prevailing on each such occasion. The contention of Meramvala was that the rule of primogeniture was not applied as a general rule of succession governing all cases of future succession but it was applied ad hoc at the time of each succession and, therefore, the character of the Estate remained unchanged and the sons of the Chief acquired an interest in the Estate by birth or adoption. It was only if on the death of the Chief the paramount power applied the rule of primogeniture to determine succession that the eldest son would succeed to the Estate and the interest of the younger sons in the Estate would be efaced or eclipsed but if the rule of primogeniture was not applied by the paramount power all the sons would succeed to the Estate by survivorship. Meramvala urged that he had, therefore, an interest in the Estate by adoption and on the death of Bhayavala, the rale of primogeniture not being applicable, he was entitled to succeed to the properties by survivorship as the sole surviving co-parcener. This contention is in our view wholly unsustainable and must be rejected. It may be noticed in the first place that it was common ground between the parties before the trial Court that the rule of primogeniture was applied to the Estate in 1932-33 and it governed succession in the Estate since 1932-33 at any rate upto the lapse of paramountcy. It was not the case of either party before the trial Court that the rule of primogeniture was not applied to the Estate as a general rule of succession but was only applied ad hoc on the occasion of each succession. The evidence of Meramvala was also to the effect that the rule of primogeniture was applied to the Estate from 1932-33. So also the definite averment of Amarbai in paragraph 13 of her written statement. The book intituled 'The Ruling Princes, Chiefs and Leading Personages in the Western India States Agency' which as already mentioned is a Government of India publication and which has been corrected upto 31st December 1933, also says at page 303 while dealing with the present Estate that succession is governed by the rule of primogeniture. It must be remembered that this is a publication made by the paramount power and great weight must be attached to the declaration made by the paramount power in this publication that as on 31st December 1933 succession in the Estate was governed by the rule of primogeniture. In 1932-33, Ram Mulu was the Chief of the Estate and it was during his regime that the rule of primogeniture was applied to the Estate. Before that the Estate was governed by the Kathi rule of division. It appears that sometime in 1921 at or about the time when Mulu Bhaya died, an application was made for sanction of the paramount power to adopt the rule of primogeniture as a rule governing succession in the Estate but the application was refused by the paramount power and on the death of Mulu Bhaya, the Estate was inherited by Ram Mulu and Vira Mulu according to the Kathi rule of division. Ram Mulu and Vira Mulu thereafter partitioned the Estate which they received from Mulu Bhaya sometime in 1928 and as a result of the partition, the present Estate came to the share of Ram Mulu and the Natver Nagar Estate went to the share of Vira Mulu. It is, therefore, clear that until 1928 the Estate was governed by the Kathi rule of division and the rule of primogeniture did not apply. It was in 1932-33 that the rule of primogeniture was adopted with the sanction of the paramount power and that is why we find that in the publication intituled 'Ruling Princes, Chiefs and Leading Personages in the Western India States Agency' corrected upto 31st December 1933 there is a statement made by the paramount power that succession in the Estate was governed by the rule of primogeniture. This should be sufficient to dispose of the controversy but the matter does not rest there. There is further evidence in the shape of Kapal Giras Lekh dated 28th January 1938, Exhibit 388. Since the rule of primogeniture was applied to the Estate, on the death of Ram Mulu, Bhayavala being the eldest son was entitled to succeed to the Estate and Valeravala being the younger son was entitled to maintenance. Ram Mulu, therefore, during his lifetime made a grant called Kapal Giras of village Khari in favour of Valeravala for his maintenance. The Kapal Giras Lekh by which the grant was made was executed by Ram Mulu as the Chief and Bhayavala as the heir apparent. This Kapal Giras Lekh shows beyond doubt that on 28th January 1938 the Estate was governed by the rule of primogeniture as a general rule of succession applicable in all cases of future succession. Or else the grant of maintenance in favour of Valeravala would be entirely unnecessary and inexplicable and in any event Bhayavala would not be described as the heir apparent. Bhayavala in his letter dated 10th November 1947, Exhibit 265, addressed to Valeravala in connection with the adoption of Meramvala also stated:. on application of the rule of primogeniture to our Taluka during the time of our late father Darbar Shri Vala Rambhai, you were given village Khari along with other rights towards Kapal Giras as a cadet and the same is in your possession... on the basis of taluka custom of primogeniture....

This statement leaves no doubt that the rule of primogeniture was applied to the Estate as a general rule of succession during the lifetime of Ram Mulu and it was clearly recognized by all concerned that since then succession in the Estate was governed by the rule of primogeniture. When Ram Harsu, a collateral died on 24th April 1932, the Estate of Ram Harsu was inherited by Ram Mulu as he was the seniormost member of the seniormost branch. Thereafter on the death of Ram Mulu some time in 1943 the present Estate was inherited by Bhayavala as the eldest son to the exclusion of Valeravala, the younger son, and when Bhojvala the son of Viravala died sometime in 1925 without issue leaving only a widow, named Dhanbai, his Natver Nagar Estate was inherited by Bhaya-vala to the exclusion of Dhanbai and Valeravala and Dhanbai was given only Jivai, that is, maintenance. There is no evidence to show that the rule of primogeniture was applied ad hoc on the occasion of each of these successions and in view of clear and incontrovertible evidence referred to above, there is no doubt that these successions were determined according to the rule of primogeniture as the rule of primogeniture was applied to the Estate as a general rule of succession in 1932-33.

8. We may also in this connection usefully refer to Captain Webb's Political Practice in Kathiawar. The discussion on the topic of the 'Principle and Rule of Primogeniture' is to be found at pages 19 to 25 of the publication. It is clear from this discussion that at one time the British Government as the paramount power sought to enunciate a general rule that succession in each Estate must be governed by the rule of primogeniture. But there was protest from several Kathi Estates and the application of the rule of primogeniture by way of a general rule applicable to all Estates was, therefore, cancelled and it was decided that:. successions, whether in Kathi or other Estates, will be decided ontheir merits, as they would have been decided had no general rule been promulgated.

The rule of primogeniture, according to this decision might be applied to any particular Estate if the British Government thought fit but not as a general rule applicable in common to all Estates and as pointed out by Captain Webb at page 20, the rule of primogeniture was specially applied in case of several Estates and Talukas. The Chief as the sovereign ruler of an Estate governed 'according to the will of the ruler and not according to law' could adopt the rule of primogeniture with the sanction of the British Government as the paramount power of the British Government in exercise of its paramountcy could apply the rule of primogeniture to the Estate as one of the functions of the British Government as the paramount power was to settle successions in Indian States. The rule of primogeniture once adopted or applied must be held to apply to 'the Chief who is permitted to adopt it for himself and his succeeding race'. Vide paragraph 5 of the Endorsement No. 2006/63 dated 20th March 1916 made by the Secretary to Government: in the Political Department, page 22 of Captain Webb's Political Practice in Kathiawar. We must, therefore, reach the conclusion that the rule of primogeniture was applied to the Estate in 1932-33 and it governed all future successions in the Estate since 1932-33.

9. That takes us to the next question as to what is the effect of lapse of paramountcy on the rule of primogeniture. Mr. S.B. Vakil on behalf of Amarbai contended that the application of the rule of primogeniture by the British Government as the paramount power was tentamount to regrant of the Estate subject to the condition that succession shall be governed by the rule of primogeniture and, therefore, the rule of primogeniture became an incident of the Estate and the lapse of paramountcy had no effect on it. This contention was sought to be supported by reference to the decision of the Supreme Court in D.B. Ghorpade v. Vijayasinhrao : [1960]3SCR789 . But when we turn to this decision we find that it was a case relating to Saranjam which was admittedly a grant from the sovereign and there could, therefore, be resumption and regrant by the sovereign. That analogy cannot, however, apply in the present case which is a case relating to a depended sovereign State subject to the paramountcy of the British Crown. Estates such as the present one 'were carved out by the arms of the ancestors of the Chiefs long before either the Gaekwar or the Peshwa, to whose interests the British succeeded, appeared on the scene' and they 'must be absolutely distinguished from Deccan Inams and Jagirs where the holders are feudatories or privileged tenure-holders, pure and simple, and their holdings are liable to resumption and regrant at the pleasure of the Sovereign'. Vide letter of the Agent to the Governor, Kathiawar dated 29th April, 1916, page 24 of Captain Webb's Political Practice in Kathiawar. There could, therefore, be no question of resumption and regrant in the case of the present Estate and the contention of Mr. S.B. Vakil based on that hypothesis must be rejected.

10. Mr. S.B. Vakil on behalf of Amarbai then urged that in any event the rule of primogeniture had acquired the force of custom and, therefore, even if the paramountcy of the British Government came to an end, the custom of primogeniture continued to govern the Estate. Now it is well-settled that in order that custom should have the force of law, it:.must derive its force from the fact that by long usage it has obtained the force of law, bat the English rule that 'a custom in order that it may be legal and binding, must have been used so long that the memory of mm runneth not to the contrary' should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality.

or family or Estate. Vide Mt. Subhani v. Nawab . Here we find that the rule of primogeniture was admittedly not followed in the Estate until 1932-33. The first instance in which the rule of primogeniture was followed was on the death of Ram Mulu in 1943. It is undoubtedly true that the rule of primogeniture was also followed on the death of Ram Harsu on 24th April 1932 but that Estate was a different Estate from the present one with which we are concerned and that instance, therefore, cannot help. The second instance occurred on the death of Bhojvala in 1945 though strictly speaking the Estate of Bhojvala was also a different Estate. These were the only instances in a span of about 22 years and they can hardly be regarded as sufficient to establish custom.

11. But this does not mean that on the lapse of paramountcy the Estate ceased to be governed by the rule of primogeniture. The rule of primogeniture was either adopted by Ram Mulu as the Chief of the Estate with the sanction of the British Government as the paramount power or the British Government in exercise of its paramountcy applied the rule of primogeniture to the Estate. In either case the rule of primogeniture would, subject to the main contention based on sovereignty which has already been discussed, have force and effect as a binding rub governing all future successions in the Estate. In the former case the Chief being the sovereign ruler, his will would be law subject only to the overriding effect of any dictate of the paramount power and if the rule of primogeniture was adopted with the sanction of the paramount power, it would have the force of law. So also, in the latter case the British Government being the paramount power could, in the exercise of its paramountcy, lay down a rule of succession binding on the Estate and being the emanation from the superior sovereign, it would abrogate any existing law governing succession in the Estate and take its place as a binding rule governing all future successions. If thereafter the paramountcy of the British Government came to an end, that would make no difference in the position. If the rule of primogeniture was adopted by the Chief with the sanction of the British Government, the will of the Chief would still continue to be the law despite the lapse of paramountcy. As a matter of fact the lapse of paramountcy would release the fetter on the will of the Chief and so long as the Chief does not ordain otherwise, the rule of primogeniture would continue to govern the Estate. There is nothing on record to show as to whether the rule of primogeniture in the present case was adopted by Ran Mulu with the sanction of the British Government or the British Government applied it to the Estate but it appears from Captain Webb's Political Practice in Kathiawar that the practice of the British Government was not to apply the rule of primogeniture to an Estate unless the Chief desired it. Vide pages 22 to 24 of the book. But even if the rule of primogeniture was applied by the British Government as the paramount power, the result would be the same for a rule of succession authoritatively imposed as a binding rule governing future successions by the British Government as the paramount power could not cease to have force and effect on the lapse of paramountcy. We do not, therefore, think that the lapse of paramountcy had the effect of abrogating or retting at naught the rule of primogeniture and the Estate continued to be governed by that rule.

12. The argument of Mr. I.M. Nanavati however was that the effect of applicability of the rule of primogeniture by the paramount power was that the rights of coparceners under ordinary Hindu law were eclipsed: these rights were not destroyed but they remained dormant and on the lapse of paramountcy, the shadow of the eclipse being removed, the rights sprang into full force and effect. This argument is wholly unsustainable on principle and the most effective answer to it is provided by a contem plation of the consequences which might follow the acceptance of such an argument. The argument, if valid, would result in upsetting numerous titles and disturbance of many transactions leading almost to chaotic situation in which Estates would change hands after long periods of time. To take an example, on the lapse of paramountcy, Valeravala would be entitled to claim half share in Ram Mulu's Estate also in Bhojvala's Estate and Bhayavala would be entitled only to the other half. As a matter of fact Bhayavala and Valeravala would be coparceners of their joint family holding Ram Mulu's Estate and Bhojvala's Estate in coparcenary. The Kapal Giras given to Valeravala would also be rendered invalid and village Khari would form part of the coparcenary property. That would be a startling consequence and we are glad to find that such is not the position. When the British Government as the paramount power applied the rule of primogeniture, obviously the interest, if any, of the sons in the Estate would come to an end. On the death of the Chief, the Estate would go by survivorship to the eldest son according to the rule or pri mogeniture. His sons again would not have an interest in the Estate for the rule of primogeniture would be inconsistent with the existence of such interest. If the sons have an interest, they would be entitled to claim partition but that would defeat the very basis of the applicability of the rule of primogeniture. There could, therefore, be no coparcenary as soon as the rule of primogeniture was applied. It is difficult to see how the rights of the coparceners could continue to subsist when the Estate was governed by the rule of primogeniture. The paramount power in exercise of its superior sovereignty could abrogate existing rights and confer new lights and the application of the rule of primogeniture had, therefore, the effect of destroying the interest, if any, of the sons in the Estate and creating a right in the eldest son to succeed to the Estate. This is of course on the assumption that any rights of sons could at all exist in a sovereign Estate contrary to what we have held in an earlier part of this judgment. The theory of eclipse propounded on behalf of Meramvala must, therefore, be rejected.

13. It is, therefore, clear beyond doubt that on lapse of paramountcy, the rule of primogeniture did not cease to apply to the Estate and the Estate continued to be governed by the rule of primogeniture and Meram vala consequently did not acquire an interest in the Estate by adoption. Mr. I.M. Nanavati faintly attempted to argue that even if the rule of primogeniture applied to the Estate, that would not preclude Meramvala from acquiring an interest in the Estate by adoption. But this argument is futile and must be rejected. Once a rule of primogeniture applies to an Estate, the sons cannot acquire an interest in the Estate by birth or adoption for if they acquire such interest, they would be entitled to claim partition of the Estate and that would be clearly inconsistent with the rule of primogeniture. We, therefore, reach to the conclusion that Meramvala did not acquire any interest in the Estate by adoption and he was not entitled to restrain Bhayavala from disposing of the Estate or any part thereof by will. Bhayavala was, therefore, entitled to dispose of the properties by will.

14. Mr. I.M. Nanavati then contended that the 'life interest principle' applied to the Khari-Bagasara Estate and according to that principle, the Chief for the time being had only a life interest in the Estate and he was not entitled to alienate any part of the Estate inter vivos or by will. This principle, argued Mr. I.M. Nanavati, applied by reason of custom or usage and it was recognized in the Preamble to the Life Interest Rules promulgated by the Governor General in Council on 22nd June 1900. Bhayavala had, therefore, only a life interest in the Estate at the deal of merger and the nature and quality of his interest remained the same even after merger in respect of the properties comprised in the Estate which were not used for the benefit of the public or any section thereof. The Life Interest Rules, agreed Mr. I.M. Nanavati, were undoubtedly repealed by Saurashtra Act 24 of 1950 but the repeal did not have the effect of altering the nature and quality of the interest possessed by Bhayavala or argumenting it and Bhayavala continued to have life interest in the properties and the will was, therefore, inoperative to dispose of the properties. This contention was opposed by Mr. S.B. Vakil on behalf of Amarbai and the objection he raised was a two fold one. The first objection was that this contention sought to be raised on behalf of Meramvala was an entirely new contention which had no basis in the pleadings and which did not form the subject matter of debate before the trial Court and it was, therefore, not open to Mr. I.M. Nanavati on behalf of Meramvala to raise it for the first time at the hearing of these appeals. Mr. I.M. Nanavati frankly conceded that the contention was not raised before the trial Court in the form in which he had raised it before us, but his submission was that the contention was not an entirely new contention and the germ of it was to be found in paragraph 17 of the written statement of Amarbai and it was actually discussed by the trial Court in the judgment under appeal. Now if we look at the plaint of Meramvala in his suit, we do not find any mention of this contention in the plaint. There is no plea in the plaint that by reason of the 'life interest principle' Bhayavala had only a life interest in the Estate and he was not entitled to dispose of his properties by will. There is not even a reference to the 'life interest principle' in the plaint. It is no doubt true that in paragraph 17 of her written statement Amarbai stated that prior to merger the British Government had, in exercise of its paramountcy, applied 'life interest' but the Government of Saurashtra, by a statute, abrogated the 'Life Interest Rule' and the Chief of the Estate, therefore, became a full and complete owner of his Estate. But this statement does not involve any admission on the part of Amarbai that the Chief had only a life interest in his Estate and he was not entitled to dispose of the Estate inter vivos or by will. The reference in this statement was to the Life Interest Rules promulgated by the Governor General in Council on 22nd June 1900 which were repealed by the Saurashtra Government by Saurashtra Act 24 of 1950 and not to the 'life interest principle' which according to Meramvala was applicable to the Estate as a custom having the force of law since long prior to the promulgation of the Life Interest Rules. What was, therefore, admitted by Amarbai in this statement was the application of the Life Interest Rules by the British Government and not the existence of the 'life interest principle' apart from those Rules. Now the Life Interest Rules did not provide that the Chief shall have only a life interest in the Estate. They merely barred the jurisdiction of the Agency Courts to take cognizance of certain kinds of suits against tributary Chiefs or Talukdars. This statement of Amarbai cannot, therefore, be construed as an admission that the 'life interest principle' applied to the Estate. 'Life interest principle' was relied upon by Meramvala as a custom having the force of law but it is elementary that custom must always be pleaded and, therefore, in the absence of a plea Meramvala was not entitled to rely on the 'life interest principle' in the appeals. Since there was no averment in the pleadings regarding the 'life interest principle', no issue was also raised by the trial Court as to whether the 'life interest principle' governed the Estate and what was the effect of the 'life interest principle' on the power of Bhayavala to dispose of his properties by will. Mr. I.M. Nanavati on behalf of Meramvala placed reliance on issue No. 6 but that issue, we are afraid, do not help his contention. That issue embodies the plea in paragraph 17 of the written statement of Amarbai and has reference to the abolition of the Life Interest Rules by the Saurashtra Government and not to the 'life interest principle' alleged to exist independently as a custom apart from the Rules. It is significant that this issue is in the form: 'What is the effect of abolition of life interest principle of succession?'. This issue postulates that the 'life interest principle' has been abolished and the only question which it raises is as to what is the effect of such abolition. Now the abolition pleaded by Amarbai was abolition of the Life Interest Rules by Saurashtra Act 24 of 1950 and this was not disputed on behalf of Meramvala. The only dispute was as to the effect of the abolition of the Life Interest Rules and that formed the subject matter of this issue. This issue did not raise the question whether the 'life interest principle' governed the Estate or what was the effect of the 'life interest principle' or whether the 'life interest principle' was abolished. This issue was limited only to the plea contained in paragraph 17 of the written statement of Amarbai and cannot, therefore, help Meramvala to get over the difficulty created by the absence of the requisite plea in his plaint. When we turn to the pleadings in Amarbai's suit, we find that the position is still worse. There is no reference in either of the pleadings in that suit to the 'life interest principle' or even to the Life Interest Rules and there is no issue in regard to the 'life interest principle' or the Life Interest Rules in that suit. Faced with this difficulty Mr. I.M. Nanavati urged that though there might be no averment in the pleadings and no issue framed by the trial Court, the point was still argued before the trial Court andit was, therefore, open to him to raise that point in the appeals. But this contention is also without substance. We do not find anything in the Judgment of the trial Court to show that the point which is now sought to be raised was argued before the trial Court. It is no doubt true that the trial Court in one part of its judgment referred to the 'life interest principles' but it is clear that the reference was in the context of a discussion of issue No. 6 and it is clear that though the trial Court used the expression 'life interest principles' what the trial Court had in mind were the Life Interest Rules and not the 'life interest principle' as contended on behalf of Meramvala. That is clear from the following statement in the judgment of the trial Court: 'Now it is an admitted fact that by Act 24 of 1950 the State Government of Saurashtra repealed the Life Interest Principle Rules. Therefore, those rules now do not any more govern the Ruling Chiefs of Saurashtra'. We are, therefore, satisfied that this point which is now sought to be raised before us on behalf of Meramvala was not argued before the trial Court and indeed it could not have been argued as there was no basis for it either in the pleadings or in the issues. It may be pointed out that no evidence on the point was also led on behalf of the parties before the trial Court which would certainly have not been the case if the parties had joined issue on the point. Mr. I M. Nanavati on behalf of Meramvala cannot, therefore, be permitted to urge before us for the first time in the appeals that the 'life interest principle' governed the Estate as a custom since long prior to the promulgation 'of the 'Life Interest Rules'. That would be entirely a new contention raising a mixed question of law and fact and it cannot be allowed to be raised for the first time in the appeals. We may observe that no application was made to us on behalf of Meramvala for leave to amend the plaint so as to include the plea based on the 'life interest principle'. In this view of the matter it is not necessary for us to go into the question whether the 'life interest principle' applied as customary law to the Estate and by reason of the 'life interest principle' Bhayavala was not entitled to dispose of his properties by will though we may point out that on the material on record we are not at all satisfied that there was any such 'life interest principle' in existence which precluded the Chief of an Estate from alienating his Estate or any part thereof inter vivos or by will. The decision in Dhrangadhra State v. Nawanagar State 15 Kathiawar Law Reports 194 does support the existence of 'life interest principle' of this kind but it appears from paragraph 75 of the despatch of the Board of Directors dated 27th April 1854, reproduced in the notification dated 7th October 1872, Kathiawar Directory, Volume I, page 634, which first enunciated the 'life interest principle' as also from the decision of Bai Sonba Hathibhai v. Sarvaiya Kasalsang Hakabhai and Ors. 28 Kathiawar Law Reports 223 that the 'life interest principle' was confined in its applicability to debts incurred by Chief and did not have any general application so as to convert the nature of the interest of the Chief into a 'life interest' incapacitating him from disposing of the Estate inter vivos or by will. The Life Interest Rules promulgated by the British Government on 22nd June 1900, it appears, gave the force of law to the 'life interest principle' which was evolved for the first time in 1854 and these Rules show that the 'life interest principle' was confined to debts and had no general application of the kind contended for on behalf of Meramvala. The present contention of Mr. I.M. Nanavati must, therefore, be rejected.

15. This being the view taken by us, it is not necessary for us to consider further the two contentions urged by Mr. S.B. Vakil on behalf of Amarbai, namely, (I) that under the merger agreement Bhayavala became the full and complete owner of the properties which were allowed to be retained by him and, therefore, in any event whatever might have been the position prior to the merger agreement, Bhayavala was subsequent to the merger agreement the full and complete owner of his properties; and (2) that by reason of the provisions of the Saurashtra Land Reforms Act, 1951, Bhayavala was the full and complete owner of the properties and Meramvala had no interest in the same. We do not, therefore, express any opinion on the validity of these contentions.

16. Unable to establish that the will of Bhayavala was ineffective and inoperative, Mr. I.M. Nanavati on behalf of Meramvala fell back upon a technical objection in an attempt to defeat Amarbai's suit and the objection was that though an order was made in Probate Case No. 3 of 1954 on 17th April 1954 for issue of probate of the will to Amarbai, probate was not actually issued to Amarbai pursuant to the said order and Amarbai was, therefore, not entitled to establish her rights as an executive under the will and obtain relief in her suit. This objection was founded on Section 213 of the Indian Succession Act but that section mani festly does not apply as Bhayavala was a Hindu the will made by him was not of the class specified in Clause (a) or (b) of Section 57 vide: Sub-section (2) to Section 213 which says that:

(2). This section shall not apply in the case of wills made by Mahammadans, and shall only apply in the case of wills made by any Hindu, Buddhist, Sikh or Jain where such wills are of the classes specified in Clauses (a) and (b) of Section 57.

The objection is, therefore, without substance and must be rejected.

17. That takes us to a consideration of the question as to what decree should be passed in the two suits. Meramvala's suit must obviously be dismissed but so far as Amarbai's suit is concerned, the decree passed by the trial Court would have to be modifiedThe trial Court, in addition to granting a declaration that Amarbai was entitled to the sum of Rs. 67, OOOArealised by Meramvala, passed a decree directing Meramvala to hand over the said sum of Rs. 67, 000/ to Amarbai. This part of the decree is clearly unsustainable. Amarbai did not pray in her suit for recovery of Rs. 67, OOOAfrom. Meramvala. On the contrary she sought leave of the Court under Order 2 Rule 2 of the Code of Civil-Procedure to omit to sue for recovery and possession of the properties of the Estate of Bhayavala in the possession of Meramvala including the moneys realised by Meramvala from the Revenue Department of the State and such leave was granted by the Assistant Judge on the application of Amarbai. Since the claim for recovery of the sum of Rs. 67, 000/-was not made in the suit and leave to sue for it was granted by the Assistant Judge under Order 2 Rule 2, Amarbai did not pay Court-fees on the value of the said claim. An objection was taken by Meramvala that the Court-fee paid by Amarbai was inadequate and the matter was ultimately taken to the High Court of Saurashtra. Chhatpar J, of the Saurashtra High Court held, accepting the contention of Amarbai, that she had not claimed the relief of recovery of Rs. 67, 000/- from Meramvala in the suit but that leave had been granted to her to omit that claim from the suit under Order 2 Rule 2 and, therefore, there was no question of payment of Court-fee on that claim. In view of this position, the trial Court was in error in passing a decree for recovery of Rs 67, 000 in favour of Amarbai. The decree in Amarbai's suit would, therefore, have to be modified by deleting that part of the decree which relates to recovery of Rs, 67, 000/-though the declaration that Amarbai is entitled to that amount would remain.

10th November 1967

17.1 The above judgment was pronounced by us in open Court on 3rd May 1967 and the question arose as to whether any direction should be given by us for payment to Amarbai of the amount realised by Meramvala subsequent to the date of the suit. Mr. S.B. Vakil on behalf of Amarbai contended that in so far as these amounts are concerned, Amarbai was entitled to an order for recovery of the same. This contention was disputed by the learned Advocate General appearing on behalf of Meramvala and we, therefore, adjourned the matter to 5th May 1967 for the purpose of ascertaining what amounts were recovered by Meramvala subsequent to the date of the suit and for determining whether the same should be ordered to be paid by Meramvala to Amarbai Since this direction was sought for in the appeal, Mr. S.B. Vakil on behalf of Amarbai requested us not to sign the judgment until his application for such direction was disposed of. On 5th May 1967, it was found that the parties were not agreed as to the actual amount recovered by Meramvala subsequent to the date of the suit and we, therefore, directed that it would be proper if Amarbai made a regular application in the appeal for an order for recovery of those amounts. Civil Application No. 293 of 1967 was accordingly preferred by Amarbai and an affidavit in reply was filed by Merarmvala and there was an affidavit in rejoinder filed by Amarbai. This application came up for hearing before us yesterday and after the matter was argued for some time it was adjourned to this day. To-day when the matter was called out, we were told that an arrangement was arrived at between the parties without prejudice to their rights and contentions and the arrangement was that without prejudice to the rights and contentions of the parties, Meramvala should pay a sum of Rs. 72, 900/- to Amarbai within a period of two months from to-day and should also pay maintenance at the rate of Rs. 1000/-per month instead of Rs. 600/ - per month from 1st November 1967 until the final disposal of the appeal intended to be filed by Meramvala and that the application for restitution should stand over until them be adjourned also until the final decision of the appeal. We, therefore, adjourn Civil Application No. 893 of 1967 until the final disposal of the intended appeal before the Supreme Court.

18. We therefore, dismiss both the appeals of Meramvala and confirm the decree passed by the trial Court with the modification that that part of the decree which directs Meramvala to pay a sum of Rs. 67, 000/- to Amarbai shall be deleted Meramvala will pay the costs of both the appeals to Amarbai.


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