P. K. BAHRI ( 1 ) THIS is a suit seeking separation of the shares of the plaintiffs after due partition of the joint properties. Plaintiffs No. 1 and 2 are the sor. s of defendant No. 1 whereas plaintiff No. 4 and defendant No. 2 are the daughters of defendant No. 1 and plaintiff No. 3 is the wife of defendant No. 1. Plaintiffs l,2 and 4 were minors at the time of the filing of this suit and the suit was brought through their mother and next friend, Plaintiff No. 3. The plaintiffs l,2and4 had since become major and had elected to continue this suit. Unfortunately Plaintiff No. 2-Maharajkumar Amanjit Singh died on November 10, 1991. He had died intestate and his estate is inherited by his mother Plaintiff No. 3. ( 2 ) THE case set up by the plaintiffs in brief is that the plaintiffs and defendants constituted Hindu Undivided Family and all of them have been joint in estate and worship and upto August 1976, they were also joint in mess. It is averred that defendant No. 1 had deserted the family since August 1976 and has been separately residing in Gymkhana Club, New Delhi. In para 8 of the plaint, the defails of the co-parcenary properties have been given which are (1) double-storey residential house bearing municipal No. 90-A, Greater Kailash-l, New Delhi; (2) Commercial flat No. 101 on the first floor of the building known as Surya Kiran situated at Kasturba Gandhi Marg, New Delhi; (3) a residential house known as Villa Bouna Vista and Cottage Villa Chalet, servant quarters, garages, etc. , located in Village Chuharwal, District Kapurthala; (4) a residential palace in Mussoorie known as chateau St. Helens, Mussoorie (5) all movables including furniture, carpets, etc. . lying in Villa Kapurthala, Chateau St. Helens, Mussoorie and in property in Greater Kailash; (6) all jewellery and valuables lying in the sales of Toskhana inside the Villa, Kapurthala and in the safes of Chateau, Mussoorie; (7) jewellery lying in locked brief case kept in lockor No. 325, Grindlays Bank, h Block, Connaught Place, New Delhi; (8) jewellery lying in Societies General, Bouleward Haussmann, Paris, France; and (9) shares. in joint stock companies, share certificates of which are lying hi safe custody with the First National City Bank, Fort, Bombay. in joint stock companies, share certificates of which are lying hi safe custody with the First National City Bank, Fort, Bombay. It is also pleaded that if there are some other properties which are co-parcenary properties, of which the plaintiffs for the present have no knowledge, if are found, they be also partitioned. ( 3 ) IT is averred in the plaint that on or abchit January 13, 1977, the defendant No. 1 had filed 8 suit in this Court against plaintiff No. 3, his wife, seeking a declaration that the two properties namely Villa at Kapurthala,and the Chateau, Mussoorie with all the movables lying therein are his personal and exclusive properties and the poperty at Greater Kailase, B 90-A is also owned exclusively by him acquired from his personal funds and the jewelleries lying in different places in the said properties are also exclusively, owned by him. ( 4 ) IT is pleaded that defendant No. 1, who is the karta of the H. U. F. has set up wrongful claims to the co-parcenary properties and has thus committed a gross misconduct which thus furnishes the cause of action for the plaintiffs to seek partition of the joint family/co-parcenary properties. It is averred that the grandfather of defendant No. 1 had succeeded to the Gaddi of Kapurthala as a. male heir and the same constituted a valuable property right carrying priviliges, title and monetary benefits and all the properties of the Gaddi to! which the grandfather of the defendant No. 1 succeeded including the income attached to the Gaddi were ancestral properties in his hands and the property acquired by grandfather of defendant No. 1 with the aid of any impartible estate became ancestral properties and are governed by law of inheritance of ancestral properties applicable to the Mitakshara School. It is furthesr averred that the great grandfather of the plaintiffs 1 and 2 had built Chateau St Helens at Mussoorie with the aid of ancestral funds and the properties acquired with the aid of any impartible estate by the great grandfather of the grandfather of plaintiffs 1 and 2 became H. U. F. properties. It is furthesr averred that the great grandfather of the plaintiffs 1 and 2 had built Chateau St Helens at Mussoorie with the aid of ancestral funds and the properties acquired with the aid of any impartible estate by the great grandfather of the grandfather of plaintiffs 1 and 2 became H. U. F. properties. It is contended that defendant No. 1 and his father had not acquired any property with the aid of any privy purse and even if they did so, the same also at any rate became H. U. F. co-partenary properties as any property acquired with the aid of imparitable estate would become joint property with all the incidents of co-parcenary attached to it. It is pleaded that all the jewellery and pieces of art, etc. are ancestral properties. It was reiterated by the plaintiffs in the plaint that all the properties acquired by great grandfather of defendant No. 1 were acquired with the aid of ancestral funds and all the properties thus including the Gaddi and the income attached thereto became ancestral in the hands of grandfather of the plaintiffs 1 and 2 and so also in the hands of defendant No. 1. ( 5 ) IT is pleaded that some of the properties have been acquired by defendant No. 1 from the compensation received by defendant No. 1 in respect of the zamindari rights which were ancestral properties and also friom the sale proceeds of the palace at Kapurthala. In para 22 of the plaint, the plaintiffs have given the details of some of the share scripts Held in the name of plaintiff No. 3 and defendant No. 1 which are also claimed to be H. U. F. properties. ( 6 ) THE defendant No. 1 has contested the suit and has filed a lengthy written statement. He had taken the preliminary objections to the maintainability of the suit on the ground that plaintiff No. 3 had no locus standito,represent plaintiffs 1, 2 and 4 but that objection no longer survives in as much as the minors had become majors and had elected to pursue the suit and even a statement was made by counsel for defendant No. 1 that defendant No. 1 did not dispute the right of the plaintiff No. 3 to act as next friend of minor plaintiffs in filing the present suit. ( 7 ) IT is pleaded bydefendant No. 1 that no partition could be claimed in respect of impartible estate and that the suit is also not maintainable because the properties in dispute had devolved on defendant No. 1 by virtue of two Wills dated. January 16, 1949 and July 10, 1975 by his late grandfather and father respectively and defendant No. 1 is absolute and exclusive owner of the said properties which have been assessed for taxation purposes as his individual properties. It was also pleaded by defendant No. 1 that the Will of his father and of his grandfather have been duly probated not only in India but also in England and France and those cannot be challenged. ( 8 ) A reference is made by defendant No. 1 to a plea taken by plaintiff No. 3 in the written statement in suit No. 35/77 liked by defendant No. 1 that the alienation of the Gaddi and the properties comprising the Kapurthala state was also not permissible by the family custom. Then it is also averred by defendant No. 1 that plaintiff No. 3 had in that very written statement admitted that the Gaddi of Kapurthala and all the properties of the Maharaja for the time being used to devolve on his eldest son according to the rule of primogeniture by survivorship. ( 9 ) IT is further pleaded that in the State of Punjab there existed no right of partition in respect of joint family estates during the life time of the lather. Then pleas were taken that the suit has been brought by plaintiff No. 5 who has been instigated by some other persons namely Shri Anup Singh when in fact plaintifl No. 3 has no right in the properties. Defendant No. 1 claims that he being the only son of Maharaja Paramjit Singh of Kapurtala was recognised by the Government of India as a "ruler" and he was the recipient of a privy purse of Rs. 2,70,000 per annum, till the enactment of the Constitution (Twenty Sixth) Amendment Act, 1971. Defendant No. 1 claims that he being the only son of Maharaja Paramjit Singh of Kapurtala was recognised by the Government of India as a "ruler" and he was the recipient of a privy purse of Rs. 2,70,000 per annum, till the enactment of the Constitution (Twenty Sixth) Amendment Act, 1971. ( 10 ) ON page 9 of the written statement the defendant No. 1 has given the Geneological table of the family of defendant No. 1 starting from Baba Jassa Singh and defendant No. 1 has pleaded that among the ruling families of Punjab, succession in the Kapurthala family has always been according to the rule of primogeniture and the laws governing impartible estates and the properties of the Ruler of Kapurthala have always devolved in accordance with the rule of primogeniture as an impartible estate and the holder of the same holds such properties absolutely. ( 11 ) IT is averred in the written statement that on May 5, 194s, the rulers of various states including of Kapurthala had entered into a Convenant with the concurrence of the Government of India for the integration of their territories into one union by the name of Patiala and East Punjab States Union which also provided that the ruler of each Convenant state shall be entitled to full ownership, use and enjoyment of all (he private properties (as distinct from State properties) belonging to him on the date of his making over the administration of that State to the Raj Pramukh. It is pleaded that a declaration was made by the then Maharaja of Kapurthala with regard to his private properties which are shown in the Circular dated April 20. 1949 and those properties are set out in Annexure I to the written statement. It is also pleaded that the said Covenant also provided that the privy purse which was to be given under the said Gaddi became impartible and the law of primogeniture applied to it and it was accepted by the government of India. ( 12 ) IT was also pleaded by defendant No. 1 that Maharaja Jagatjit Singh during his life time had gifted jewellery, valuables and money to defendant No. 1 from time to time and the details of the said gifts are shown in Annexure 2 to the wrilten statement. ( 12 ) IT was also pleaded by defendant No. 1 that Maharaja Jagatjit Singh during his life time had gifted jewellery, valuables and money to defendant No. 1 from time to time and the details of the said gifts are shown in Annexure 2 to the wrilten statement. In Annexure 3 to the written statement, details of the jewellery and valuables have been given which came to defendant No. 1 vide the Wills of his grandfather and the father respectively and defendant No. 1 claims that they are his exclusive properties. The defendant No. 1 has pleaded that in law the property which devolve? by principle of primogeniture vests in the holder thereof absolutely and exclusively. ( 13 ) IT is pleaded by him that he had joined Indian Army as a Commissioned Officer in 1954 and he had been posted at various places and had been leaving his things to a large extent in the hands of plaintiff No. 3, his wife and thus, plaintiff No. 3 had access to the safes and repositories located in the Villa, Kapurthala. Chateau, Mussoorie and house in Greater Kailash. Defendant No. 1 also pleaded that in view of his being employed on active duty with the army involving great risk to his life, he had included the name of plaintiff No. 3, his wife, as the mere namelender, while acquiring several movable and immovable properties althorgh entire consideration for the same were paid by defendant No. 1 with his own money and those properties are detailed out in Annexure 4 to the written statement. It is pleaded that he had been also giving money from time to lime to the plaintiff No. 3 for inaintainance and plaintiif No. 3 had purchased various properties, which are detailed out in Annexure 5, from the said funds and plaintiff No. 3, in fact, has no rieght or title to the said properties. Defendant No. 1 has alleged that plaintiff No. 3 had removed certain jewellery and items belonging to him and thus, he had to file a suit No. 35177 for recovery of those jewellery items and for restraining the plaintiff No. 3 from entering the Villa, Kapurthala, the Chateau, Mussoorie. and from removing the valuables lying in property in Greater Kailash. Defendant No. 1 has alleged that plaintiff No. 3 had removed certain jewellery and items belonging to him and thus, he had to file a suit No. 35177 for recovery of those jewellery items and for restraining the plaintiff No. 3 from entering the Villa, Kapurthala, the Chateau, Mussoorie. and from removing the valuables lying in property in Greater Kailash. ( 14 ) IT is pleaded that plaintiff No. 3 had caused a clout on the title of defendant No. 1 in respect of his exclusive properties. He has mentioned that he retired as Brigadier and hi had been getting salary during his employment with the army besides privy purse of Rs. 2,75,000 and he had acquiredproperties and assets as detailed out in Annexure VI from the said money. It is pleaded that the properties which have been acquired jointly in the name of plaintiff No. 3 exclusively belong to defendant No. 1 as plaintiff No. 3 had no source of her for acquiring any properties. Then he has given details of some of the lockers in para 22 which are in the name of plaintiff No 3. He has mentioned in para 23 of the preliminary objection dial the Villa properties stand in the name of plaintiff No. 1 and 2, although the entire consideration of the said property was paid in him and without prejudice to his contentions and for the limited purpose of the present suit, defendant No. 1 has no objection to the Villa property continuing to be in the names of plaintiffs 1 and 2. ( 15 ) COMING to the pleas taken by the defendant No. 1 in parawise reply on merits, the defendant No I has reiterated that the estate in dispute is an impartible estate and has devolved upon him by virtue of the Wills and even otherwise the properties devolved on defendant No. 1 by virtue of the rule of propermogeniture governing impartible estate and thus, he is absolute and exclusive owner of the same and the income derived from the said properties also belongs to him exclusively. He has mentioned that in respect of the impartible estate, a member of the family can only claim the right of survivorship and the impartible estate is not a co-parcenary property and thus, the suit for partition is not at all maintainable. He has mentioned that in respect of the impartible estate, a member of the family can only claim the right of survivorship and the impartible estate is not a co-parcenary property and thus, the suit for partition is not at all maintainable. ( 16 ) DEFENDANT No. 1 has disclosed in para 7 of the written statement that out of the compensation received by him in 1975 for the U. P. Zamindari from the Government of U. P. , he bad made ever some specific assets to the family and declared the said assets as joint family assets and effected partial partition in- March 1976 purely with a view to make suitable provision for the members of his family and also for obtaining the tax reliefs. He has mentioned that the said assets voluntarily given by defendant No. 1 to his family members are not subject matter of this suit. ( 17 ) COMING to the details of the properties mentioned in para S of the plaint, defendant No. 1 has pleaded that the plot of land in respect o ( House No. B-90a, Greater Kailash-l. New Delhi was purchased and constructed by him from his own personal funds and the same is his self-acquired property and he had voluntarily arranged for the plaintiff No. 3 to have one seventh share in the said house. ID respect of the commercial flat No. 101, Surya Kiran, he has mentioned that it was purchased by him from his own funds and the same is his exclusive and absolute property although he had joined the name of plaintiff No. 3. his wife, as covendee in the sale deed of the said flat. He has also mentioned that the entire consideration for the purchase of residential house known as Villa Bouna Vista and Cottage, Villa Chalet, came from his own sources and he is exclusive owner of the same. He has further pleaded that the residential properties in Mussoorie known as Chateau St. Helens had vested in him exclusively in 1975 upon the demise of his father on the basis of the Will mentioned by him earlier and also under the law of primolgeniture and the same is an impartible property. He has further pleaded that the residential properties in Mussoorie known as Chateau St. Helens had vested in him exclusively in 1975 upon the demise of his father on the basis of the Will mentioned by him earlier and also under the law of primolgeniture and the same is an impartible property. He has further mentioned that all the movables lying in the said house absolutely vest in him on the basis of the said Will and die jewellery and valuables are part of his impartible estate. He has further pleaded that he is the exclusive owner of the shares although name of plaintiff No. 3 has been included as joint owner of the shares as mere namelender and he had acquired those shares with his own money. He has mentioned that there are certain life insurance policies, details of which are given in Anuexure VI and he is the sole beneficiary of those policies. ( 18 ) THE defendant No. 1 has reiterated, in para 15 of the written statement, that all the properties of late Maharaja of Kapurthala including the Gaddi have always 3evolved on me eldest son under the rule of primogeniture as an impartible estate and thus, they are not liable to be partitioned and moreover, he had acquired those properties under the Wills and thus, is absolute owner of the said properties and as he acquired those properties in 1955 on the death of his father, i. e. prior to the enactment of the Hindu Succession Act 1956, so he continues to be the owner of the said property exclusively and those properties have never become joint Hindu family properties or coparcenary properties. He has pleaded that the said properties are part of his impartible estate and thus no partition in respect of the same can be claimed. He has also controverted the plea that the properties acquired from the income of the impartible state have become co-parcenary or joint Hindu family properties. He has also filed a counter claim for getting declaration that he is the exclusive owner of the properties mentioned in Annexures I to VI. ( 19 ) IN replication, the plaintiffs controverted the pleas of the defendant No. 1 on all respects and reiterated that the properties in question are co-parcenary properties and plaintiffs have every right to claim partition of the same. ( 19 ) IN replication, the plaintiffs controverted the pleas of the defendant No. 1 on all respects and reiterated that the properties in question are co-parcenary properties and plaintiffs have every right to claim partition of the same. ( 20 ) INITIALLY, issues were framed on March 7, 1080 but certain issues were modified and modified issues were framed on 11th March 1980. which are as follows :- 1. Whether the properties in suit are co-parcenary properties ? O. P. P. 2. If issue No. 1 is proved, whether the properties ai not liable to be partiuojned ? O. P. D. 3. Is the present suit not in the interest of plaintif 1 and 2? O. P. D. 4. What are the rights of plaintiffs 3 and 4 and delei dant No. 2 in the property in dispute in case the are found to be co-parcenary properties and part ble ? O. P. P. 5. Did Maharaja Jagatjit Singh make a declaration dated 11-8-1948 declaring Mussoorie Chateau an other associated properties to be his self-acquire properties? If so, to what effect? O. P. D. 6. Did Maharaja Jagatjit Singh execute a Will date) 16-1-1949? If so, to what effect? O. P. D. 7. If issue No. 1 is proved in favour of the plaintiff whether Maharaja Japatjit Singh could bequeath the property by Will dated 16-1-1949 ? O. P. D. 8. Did Maharaja Paramjit Singh execute a Will datec 10-7-1955. If so, to what effect? 9. If issue No. 1 is proved in favour of the plaintiff, whether Maharaja Pararnjit Singh could bequeaths property by means of a Will dated IU-7-1955 ? O. P. D. 10. What is the nature of the property held by defen- dant No. 1. ? O. P. P. 11. Relief. ( 21 ) BEFORE I deal with the various issues arising in this suit I may mention that on September 9, 1981, a joint, statement was made by counsel for the plaintiffs and counsel for defendant No. 1 which is to the following effect :- "we agree that the pioperties B-90-A, Greater Kailash, Flat No. 101, Surya Kiran; New Delhi, and the shares of Continental Devices Tndia Ltd. , standing in the joint names of Plamtiffno. 3 and Defendant No. 1, were acquired from the sale proceeds of the Jagatjit Palace and Eh see Palace, Kapurthala. It 1171 is also agreed that Rs. 3 and Defendant No. 1, were acquired from the sale proceeds of the Jagatjit Palace and Eh see Palace, Kapurthala. It 1171 is also agreed that Rs. 1,20,000.- in respect of the Villa at Kapurthala vies paid to the heirs of Maharani Brinda Devi out of the sale proceeds of the Jagatjit Palace and Elysee Palace. This joint statement is given by the counsel for the parties without prejudice to their contentions. is to the character of the Jagatjit Palace and slysee Palace in the hands of Defendant No. 1. There were four Life Insurance policies mentioned in clause 4 (a) of Memorandum dated 1l-3-1975. Two of these policies were to mature in. the year 1979, and the other two were- encashed (premature) in the year 1980, and the money was placed into the Hindu Undivided Family bank account with the Punjab and Sind Bank, Janpath, New Delhi by Defendant No. 1. Parties are agreed that the above matter can be decided on the qqetion of principle as to the character of the property in the hands of Defendant No. 1, and the custom prohibiting a son from claiming partition in the life time of the father. However, Defendant No. 1 does noi press the plea that the present suit is not for the benefit of the minors. other plcas remain. " ( 22 ) IN view of the aforesaid statement issue No. 3 is decided in favour of the plaintiffs. ( 23 ) ISSUES No. 1, 2 and 10 being inter-connected are being decided together. ( 24 ) THE case set up by the plaintiffs, in brief, is that this particular family of the plaintiffs and the defendants from the very beginning has been a Joint Hindu Family governed by Mitakshara School of Hindu Law and the properties in question having come into the hands of defendant No. 1 from his grandfather being ancestral properties had become coparcenary properties as soon as plaintiff No. 1 was born in the family and with the birth of plaintiff No. 2, plaintiffs 1 and 2 and defendant No. 1 became co-parceners in the aforesaid coparcenary properties and they have a right to seek partition of the properties. ( 25 ) IT has been pleaded by the plaintiffs that there was never any fanmily custom by virtue of which any rule of primogeniture was applicable and the properties could be inherited only by the eldest male son and the said property could be deemed to be any impartible estate. The case of the plaintiffs is that even if earlier there was any rule of primogeniture with law of impartible estate governing the inheritance, the same stood abrogated with the coming into force of Hindu Succession Act and the properties in the hands of defendant No. 1 are to be deemed to be coparcenary properties of the Joint Hindu Family. ( 26 ) IT is also the case of the plaintiffs that in the written statement of defendant No. 1 no proper plea has been taken with regard to the applicability of any custom in respect of rule of primogeniture and the plea taken by defendant No. 1 in the written statement that among the ruling families of Punjab succession in the Kapurthala Family has always been according to the rule of primogeniture and the laws governing impartible estate, in fact, cannot be given any importance as no particulars of the alleged custom governing the said family have been pleaded. ( 27 ) ON the other hand, defendant No. 1 has pleaded that in fact, rule of primogeniture and the laws governing impartible estate have been in vogue in the family and the properties of the rulers of Kapurthala have always devolved in accordance with the aforesaid rule and the holder of the said properties is absolute owner of the same. It is pleaded that the Mitakshara Law applicable to Hindus with regard to existence of Joint Hindu Family and coparcenary properties was not applicable to the ruler who was holding the properties in his absolute capacity. ( 28 ) IN order to appreciate the contentions being raised before me and before I deal with the evidence led by the parties in support of their respective pleas, I may mention that both the parties have referred to the Book Ex. Public Witness I/51. The Rajas of the Punjab by Sir Lepel Henry Griffin to show as to how Kapurthala State came into existence and came to be ruled by the ancestors of the parties. Public Witness I/51. The Rajas of the Punjab by Sir Lepel Henry Griffin to show as to how Kapurthala State came into existence and came to be ruled by the ancestors of the parties. At page 495 of he Book, it has been indicated that as to whatever the real origin of the Kapurthala Family, it appears first in the history as of that Jat Kalal or Distiller caste to which Sadao Shigh belonged, the founder of the villages of Ahlu (from which the Kapurthala Family takes its name of Ahiuwalia), Halu Sadhu, Tor and Chak, in the neighbourhood of Lahore. So, it is evident that Sadao Singh was not Raja or the Ruler or Emperor. He appears to have founded only some of the villages and the genealogy of the family. starling from Sadao Singh is delineated at page 497 of the Book. ( 29 ) BADAR Singh, great grandson of Sadao Singh, became disciple of Guru Gobind Singh and as he was not having any son, he sought blessings of the Guru and on 1718 Jassa Singh was born. After death of Badar Singh. his widow, brought her son Jassa Singh, to Delhi where My. Sandri, widow of Guru Govind Singh, was living and till the age of 12 years Jassa singh and his mother lived in Delhi and. thereafter Bagh Singh, uncle of Jassa Singh, brought him back to Punjab and he helped to conduct business of his uncle Bagh Singh. Bagh Singh is stated to have been killed four years later in a Skirmish with the imperial troops at Harian. ( 30 ) JASSA Singh is stated to have become a Sirdar and he soon acquired a great reputation. It is Jassa Singh who fought various battles, consolidated his position by conquering different territories and the narration of his history in this Book is replete with his valour in the battles he fought. He had seized many territories. It appears that during the said period the Mughal Empire was floundering and various confederations under different Sirdars came into existence in the area of Punjab and Ahmad Shah from Kabul had been making raids in that area and had been establishing his authority and then used to retreat to his native place leaving the field open again for different Sirdars to take away these territories conquered by Ahmad Shah. Jassa Singh came to be known amongst his followers as Sultan-e-Kapunhala and it is mentioned that this title was not acknowledged by Sikhs generally. It is not necessary to refer to various exploits of Jassa Singh. Suffice it to mention that he was controlling various terriories which he had acquired by dint of his valour by sword. He had also reconstructed Darbar Sahib which had been earlier devastated by Ahmad Shah on is different raids. Jassa Sing had no issue. On his death, his second cousin Bagn Singh succeeded to the estate. After death of Bagh Singh. his only son Fatah Singh became the Chief and he succeeded to the estate. It appears that he and Maharaja Ranjit Singh had joined hands and had taken some solemn oath to treat each other as real brothers and they had joint exploits in acquiring different territories and ultimately a treaty was signed with Lord Lake who represented the East India Company. This Treaty was negotiated by Fatah Singh for himself governing his territories and also on behalf of Maharaja Ranjit Singh. During his time it appears that the British protection was being Sought by him vis-a-vis Maharaja Ranjit Singh. ( 31 ) CERTAIN territories which were laker, over by Maharaja Ranjit Singh were restored to Fataii Singh on British Government persuading Maharaja Ranjit Singh to restore those territories to Fatah Singh. Fatah Singh died in October 13, 1937 and he had left behind Nihal Singh and Amar Singh, two sens. The British Government acknowledged Nihal Singh as the Chief but Maharaja of Lahore and his minister Raja Dhyan Singh had no intention of recognising Nihal Singh without gaining something out of it. Amar Singh, younger brother of Nihal Singh, was encouraged by them to grab the power from his brother Nihal Singh. It appears that Amar Singh had conspired to get killed his brothers Nihal Singh and Maharaja of Lahore had tried to bring about some settlement between the two brothers and required Nihal Singh to allow Amar Singh a separate maintenance of Rs. 30,000 a year instead of Rs. l,00. ,000 as demanded by Amar Singh. Amar Singh, however, prematurely died in an accident. 30,000 a year instead of Rs. l,00. ,000 as demanded by Amar Singh. Amar Singh, however, prematurely died in an accident. In the first Sikh war, it appears that Nihal Singh had sided against the British and after the defeat of Sikhs certain territories of Nihal Singh were confiscated and in the second Sikh war, he supported British Government whole-heartedly. He had died on September 13. 1852. Nihal Singh had left behind three sens, namely, Randhir Singh, Kharrak Singh and Harnam Singh. By virtue of his Will dated July 11, 1852, which is reproduced on page 553 of the Book, he had proceeded to divide his estate. ( 32 ) IT may be also mentioned here that for the services rendered by S. Nihal Singh in the Second Anglo-Sikh War of 1849-50, the Governor General of the East India Company conferred the title of raja on him. ( 33 ) AS far as the will of Raja Nihal Singh is concerned, by which he wanted that after his death the estate be divided into three parts amongst his three sons, the same was not given effect to as both the younger brothers had given their consent for the estate to remain united but later on Brikrama Singh and Suchet Singh, younger brothers, raised dispute? and wanted the stale to be divided. Suchet Singh was given some territory as his. share but ultimately, in view of the services rendered by Raja Randhir Singh to the British Government during the disturbances of the year 1867, the British Government annulled the Will of Raja Nihal Singh and recognised Raja Randhir Singh as the successor of the estate being the eldest son. ( 34 ) RAJA Randhir Singh expired in the year 1870 and he had been, during his life time, granted large Taluqdari in Oudh by the British. He had left behind two sons namely, Kharak Singh and Harnam Singh. The entire estate was inherited by his elder son. Raja Kharak Singh whereas his younger brothel, Harnam Singh got only maintenance allowance. Harnam Singh had embraced Christianity when he married a Christian lady in the year 1876. Raja Kharak Singh died in the year 1877 leaving behind only one son, namely, Maharaja Jagatjit Singh. All the immovable properties and the estate were inherited by Maharaja Jagatjit Singh. Raja Kharak Singh whereas his younger brothel, Harnam Singh got only maintenance allowance. Harnam Singh had embraced Christianity when he married a Christian lady in the year 1876. Raja Kharak Singh died in the year 1877 leaving behind only one son, namely, Maharaja Jagatjit Singh. All the immovable properties and the estate were inherited by Maharaja Jagatjit Singh. During his life time, Maharaja Jagatjit Singh and built various properties and had also given gifts to his sons and state officials. He was of illustrious character and had represented India at the League of Nations at Geneva. ( 35 ) IT is to be remembered here that the paramount power was the British and it was the British Government which was recognising the successors to the Raja of Kapurthala from time to time since the demise of Raja Nihal Singh. In view of the various treaties entered into between the ruler of Kapurthala State and the British Government, the ruler was left with only managing the affairs of the territory under his control internally and was to pay some tributes to the paramount power. Maharaja Jagatjit Singh is alleged to have executed a Will in favour of his eldest son, Tikka Paramjit Singh, in which he also rec ted that the estate was to be inherited by Tikka Paramjit Singh on the basis of the rule of primogeniture. He had left behind two more sons namely, Karamjit Singh and Ajit Singh. They were granted- only maintenance allowances. The British paramountcy lapsed on August 14, 1947 and Maharaja Jagajit Singh entered mto a merger agreement on August 20, 1948 by virtue of which a separate state of Patiala and East Punjab States Union (PEPSU) came into existence. Before this merger agreement was executed, a declaration was made by Maharaja Jagatjit Singh with regard to his private properties in which he mentioned that they are his exclusive properties. From the period August 14. 1947 to August 20, 1948, Maharaja Jasatjit Singh was sovereign absolute ruler of Kapurthala State. Maharaja Jagatjit Singh died in the year 1949. Maharaja Paramjit Singh, his eldest son. succeeded to the properties left behind by his father to the exclusion of his other brothers and he also is alleged to have executed a will dated July 10, 1955 bequeathing his properties in favour of his only son, defendant No. 1. by recognising the rub of primogeniture. Maharaja Paramjit Singh, his eldest son. succeeded to the properties left behind by his father to the exclusion of his other brothers and he also is alleged to have executed a will dated July 10, 1955 bequeathing his properties in favour of his only son, defendant No. 1. by recognising the rub of primogeniture. Maharaja Paramjit Singh died in the year 1955. ( 36 ) THE learned counsel for defendant No. 1 has contended that the rulers of Kapurthala State were sovereign rulers and being absolute monarchs, were not subject to any law as they were themselves the fountain head of law and succession to such rulers had been always by rule of primogeniture by virtue of which the eldest male lineal decendant succeeded to the Raj and the property left by the Ruler which assumed the nature of impartible estate in respect of which no partition could be claimed. He has contended that the properties of such ruler could never be termed as coparcenary properties or Joint Hindu Family properties. In support ot his contention that the rule of primogeniture was the general custom applicable to HinduRulers, he has made reference to certain passages appearing in various books. He has argued that in view of the consistent custom being followed, rule of primogeniture in respect of the Hindu Rulers of India in the ancient and medieval history, the British Government, after becoming a paramount power, continued to recognise the said custom by recognising the eldest son as the Raja for a particular state. He has also pointed out that even after integration of the states after independence, the Government of India had been also giving effect to the same rule of primogeniture for recognising the successors to the rulers off the various states which had been merged with the territories of India. He has referred to certain administralive reports wherein also the eldest son of the Ruler has been described as Heir Apparent in respect of almost all princely states. He has pointed out that the term "heir Apparent" used in respect of the eldest son also gives recognition to the Rule of Primogeniture. He has referred to certain administralive reports wherein also the eldest son of the Ruler has been described as Heir Apparent in respect of almost all princely states. He has pointed out that the term "heir Apparent" used in respect of the eldest son also gives recognition to the Rule of Primogeniture. He has pointed out that the words maharaja or raja commonly are used for the ruler whereas the younger brothers of the ruler are called kunwars and the eldest son of the Ruler is called Tikka or yuvraj and the younger sons are usually referred to as maharaj Kurnars or raj Kumars or kanwars . He has pointed out that only allowances have been given to the younger brothers of the Ruler. He also referred to an enactment of the Raja of Faridkot s Estate Act 5 of 1948 which again recognised the Rule of Succession on the basis of Rule of Primogeniture. He has made reference to certain judgments dealing with the princes of different states wherein the Rule of Primogeniture had been recognised. ( 37 ) THE counsel for defendant also referred to admission of the plaintiff No. 3 made in written statement filed in Suit No. 35 of 1977, certified copy of which is Ex. D-49, wherein she had admitted that properties in the family had devolved upon the father of the plaintiff as well as on the plaintiff through survivorship by virtue of the Rule of Primogeaiture. It appears that the plaintiff No. 3 in that suit had got amended the written statement to withdraw the said admission. The counsel for defendant No. 1 has, however, argued that the said admission does not vanish and still can be taken note of as proof of the existence of the Rule of Primogeniture in the ruling family of Kapurthala State. The learned counsel for defendant No. 1 has pointed out that in her testimony in this Court also, she had not made a statement that the Rule of Primogeniture was not being followed in the Kapuithala family. The learned counsel for defendant No. 1 has pointed out that in her testimony in this Court also, she had not made a statement that the Rule of Primogeniture was not being followed in the Kapuithala family. He has also drawn my attention to the statement of Dewan Piare Lal, Advocat,;, DW-2 who was the counsel in the Succession case with regard to the Will of Maharaja Jegatjit Singh and who also knew the ruling family of Kapurthala personally and also to the statement of Desraj Kapur, DW-3 and the statement of defendant No. 1 who have all deposed that the rule of primogeniture was being followed by the rulers of Kapurthala State. He has also referred to statement of Major Kirpal Singh made in Succession proceedings in Kapurthala Court while proving the Will of Maharaja Paramjit Singh, copy of same being D-17, wherein also he deposed that the rule of primogeniture applied to the ruling family of Kapurthala and he reiterated the statement in Court proceedings with regard to Supplementary Succession Certificate with regard to the estate of Maharaja Jagatjit Singh, copies of same being D-13 and D-15. Major Kirpal Singh is since dead. He had been in service of the Kapurthala family from the early 1930 s. ( 38 ) AS far as the documents being relied upon by counsel for defendant No. 1 are concerned, the same comprise of apart from the Wills of Maharaja Jagatjit Singh and Paramjit Singh, execution and validity of which are In challenge and will be decided by me under the relevant issues, the reference is made to reports of administration of the Punjab and its dependencies marked X-22 to X-27 of the pericd 1867 to 1918. The factum of grant of maintenance to junior members is evident from the plaintiff s own evidence, contents of letter dated September 19, 1837 Ex. D-63 by which Maharaja Ranjit Singh rcquired S. Nihal Singh to grant maintenance of Rs. 30000. 00 to his brother Kanwar Amar Singh. D-64. letter dated March 24, 1940 by Maharaja Sher Singh of Lahore to S. Nihal Singh For grant of maintenance Jagir to Kanwar Amar Singh, D-51, and agreement arrived at between Amar Singh and Raja Nihal Singh dated July 4, 1837 by which he expressed gratitute for getting maintanance Jagir of Rs. 30000. 00 to his brother Kanwar Amar Singh. D-64. letter dated March 24, 1940 by Maharaja Sher Singh of Lahore to S. Nihal Singh For grant of maintenance Jagir to Kanwar Amar Singh, D-51, and agreement arrived at between Amar Singh and Raja Nihal Singh dated July 4, 1837 by which he expressed gratitute for getting maintanance Jagir of Rs. 27,0001- per annum, D-62, another translation of the will executed by Kanwar Amar Singh accepting the said maintainance and also to certain portions of the book, Taluki -. dari Law of Oudh 1910 by Shail Behari Lal, pages 288, 289 and 541 showing application of law of rule of primogeniture in respect of Oudh property granted to the ruler of Kapurthala Governed by Oudh Estates Act 1869. The use of the tule heir Apparent in the Memorandum of Indian States, 1940. (Ex. D-221 and the Administration Reports of 1910-11 (X-26 ). 1917-18 (X-27) and Ex. D-59, copy of Gift Deed of Maharaja Jagjit Singh dated September 7, 1925 gifting some property in Oudh to his younger sons leaving out the heir Apparent , who is referred to as the walmhad who was to succeed to his enu re estate and. properties and U-37, a Certificate issued by the Government of India dated July 8, 1949 recognung Maharaja Paramjit Singh as a heir to his late father. ( 39 ) SO, it is argued by learned counsel for defendant No. 1 that keeping in view the history of Kapurthala family and the facts evident from the documents as well as from the oral evi- dence do go to show unmistakably that the rules of primogeni- ture was being followed by the Kapurthala ruling family since the time of Raja Bidar Singh. ( 40 ) THE learned counsel for detendant No. 1 also pointed out that the rulers of Kapurthala family, being sovereign rulers, were absolute owners not only of the Ra) property but also of the other properties and there was no distinction beins maintained by the absolute ruler in respect of those properties. ( 40 ) THE learned counsel for detendant No. 1 also pointed out that the rulers of Kapurthala family, being sovereign rulers, were absolute owners not only of the Ra) property but also of the other properties and there was no distinction beins maintained by the absolute ruler in respect of those properties. He lias referred to statement of plaintiff No. 3 wherein she had admitted that Maharaja Jagatjit Singh was the sovereign ruler and the zamindari in Oudh was his private property and as a ruler of a sovereign state, the entire estate belonged to Maharaja Jagatjit Singh and everything belonged to him and he was a rular for about six decades. ( 41 ) HE has. argued that a sovereign ruler possibly cannot be termed as a karta of a Joint Hindu Family and such a sovereign ruler is a supreme legislature, the supreme judiciary and the suprime head of the executive and there could be no limitations on his authority and apparently so because even if he acted against any alleged rule of law, there was no Court to enforce compliance by the sovereign ruler of any particular provisions of personal law. ( 42 ) HE has then referred to Indian history as recorded in the White Paper of Indian States (1950 edition) which also records that the. rulers in India made no distinction between private and State property and could freely use for personal purpose any property owned by their respective States. He has also pointed out to the statement of plaintiff No. 3 wherein she admitted that as a ruler of the sovereign state. entire estate belonged to Maharaja Jagatjit Singh (meaning thereby that there was no distinction between State property and the private property contemplated. She has also admitted that in the year 1945, it was not necessary for any ruler to make a distinction between what belonged to him in his private capacity and what belonged to the State. ( 43 ) THE learned counsel for defendant No. 1 also pointed out that at no point of time any equal share of the properties of the ruler has been given to other junior sons of the ruler and that is also indicative of the practice of the rub of priogeniture in the said family. ( 43 ) THE learned counsel for defendant No. 1 also pointed out that at no point of time any equal share of the properties of the ruler has been given to other junior sons of the ruler and that is also indicative of the practice of the rub of priogeniture in the said family. He has then referred to the evidence of the plaintiffs and pointed out that the plaintiffs have failed to explain how the State ruled by a sovereign ruler could be a coparcenary property and they have not pointed out any single case of partition and had not pointed out that in case any coparcenary existed in the initial stages, how that coparcenary continued when a particular member of the coparcenary withdrew from the coparcenary and hava not explained how all the time the eldest son succeeded to the Raj and the properties and why only maintenance allowance was given to the junior members of the family and why the elder son was referred as heir Apparent or the tikka Raja in the various documents. ( 44 ) SO. it is urged by learned counsel for defendant No. 1 that the properties in question were inherited by eldest son of the ruler from time to time and there were, at no time. coparcenary properties and defendant No. 1, who is presently holding the, proprties on the basis of the rule of primogeniture is absolute owner of the said properties and thus, no petition could be claimed in respect of these properties during the life time of defendant No. 1. Learned counsel for defendant No. 1 has also advanced arguments with regard to the present position of the said properties after the coming into force of Hindu Succession Act, 1956. I will deal with ths said contentions after deciding the question whether defendant No. 1 has acquired the properties or not by virtue of any rule of primogeniture. Learned counsel for defendant No. 1 has also advanced arguments with regard to the present position of the said properties after the coming into force of Hindu Succession Act, 1956. I will deal with ths said contentions after deciding the question whether defendant No. 1 has acquired the properties or not by virtue of any rule of primogeniture. ( 45 ) COUNSEL for the plaintiffs has, however, contended that at the time the ancestors of the parties were not the rulers by any stretch of meaning they constituted a Sikh family and were governed by Mitakshara School of Hindu Law and thus there existed a Joint Hindu Family and thus, the said family is governed by all the incidences of Joint Hindu Family as contemplated by Mitakshara Hindu Law and as defendant No. 1 has inherited the properties from a common ancestor i. e. from his father and grandfather, they are ancestral properties and as soon as defendant No, 1 had married plaintiff No. 3 there came about Joint Hindu Family and the properties held by defendant No. 1 became Joint Hindu Family properties and as soon as first son was born, the Joint Hindu Family properties became coparcenary properties and thus, the sons of defendant No. 1 have a right to claim partition of the properties in question which are coparcenary, properties. ( 46 ) HE has also contended that keeping in view the pleas taken in the written statement it is obvious that defendant No. 1 had not set up any custom by virtue of which he could claim that the said properties were inheritable by any rule of primogeniture. He has argued that only custom pleaded by defendant No. 1 is that according to the custom prevalent in Punjab I here existed no right of partition in respect at the Joint Family estates in the son during the life of his father. He has contended that although a clear plea has been taken regarding prevalence of custom in this respect bat defendant No. 1 has not set up any clear plea regarding any custom applicable to the family by virtue of which rule of primogenirule is applicable. He has argued that defendant No. 1 has defendant No. 1 has set up rule of primogeniture governing the family but he has not pleaded as to on what basis the said rule is applicable. He has argued that defendant No. 1 has defendant No. 1 has set up rule of primogeniture governing the family but he has not pleaded as to on what basis the said rule is applicable. He has argued that defendant No. 1 has also not pleaded whether the rule of primogeniture was applicable to the State properties and last to the Private properties. He has pointed out that a custom must possess certain legal attributes, namely, conscious and voluntary acceptance of the customiregularity, antiquity, certainty including uniformity and notriey, reasonableness and in consonance with public policy and morality. He has urged tha keeping in view the evidence brought on the record none of these ingredients for establishing a custom stand proved. He has argued (hat in absence of any custom baying been proved the Personal Hindu Law is applicable to the family and thus, the properties in question should be held to be coparcenary properties. ( 47 ) IT is further pointed out that mere fact that paramount British power had imposed the rule of primogeniture on the family would not lead to any inference that any custom has come into existence governing the said family by virtue of which rule of primogeniture was applicable. It is cuntended that as Soon as the British Paramountancy lapsed the rule of primogeniture forced on the family by the Paramount Power also stood extinguished. ( 48 ) HE has referred to the history of the family and pointed out that at no point of time any such custom had developed in governing the family by which rule of primogeniture was being followed. He has even pointed out that with the coming into force of the Indian Independence Act, 1947 and the State of Kapurthala having merged, the sovereign power of Maharaja Jagatjit Singh coming to an end and the incidence of Mitakshara Hindu Law, which may be considered remaining dormant as long as Maharaja Jagatjit Singh was soveriegn ruler revived as soon as he became an ordinary person and thus, at least from that day onward the properties in question would be deemed to be coparcenary properties. He has pointed out that the act of the President of India in recognising Maharaja Paramjit Singh as ruler for the purposes of conferring personal rights, privileges, dignities and titles and for payment of privy purses in terms of the covenants enterd into betwen Maharaja Jagatjit Singh and the Government of India could not have changed the nature of the properties from coparcenary properties to self-acquired properties in the hands of Maharaja Paramjit Singh and later on in the hands of defendant No. 1. ( 49 ) HE has further argued that with the enactment of the Constitution (Twentysixty Amendment) Act, 1971 which came into, force on December 28, 1971 and the enactment of the Rulers/abolition of Privileges Act, 1972, which came into force on September 9, 1972, the said personal privileges and the privy purses also came to an end and defendant No. 1 became an ordinary citizen and the properties being held by hin have to be treated as coparcenary properties. ( 50 ) HE has argued that whatever may be position applicable to the State properties vis-a-vis the custom of succession in accordance with the rule of primogeniture and impartible estate yet no such rule would have been applicable to the Private properties being held by Maharja Jagatjit Singh and thereafter by his son Maharaja Paramjit Singjh and now by defendant No. 1. He has pointed out that the political power of the British and subsequently the terms of any instrument of merger and thereafter the covenants entered into with the Government of India only referred to the succession to the estate or Gaddi and the alleged rule of primogeniture would have governed succession to the estate or Gaddi and not to the private properties being held by the Rulers of Kapurthala. He has argued that in the written statement defendant No. 1 has not pleaded any specific and distinct custom pertaining to succession in accordance with the rule of primogeniture and impartible estate in the ruling Kapurthala family in respect of the private properties.