MANVENDRASINHJI R. JADEJA v. RAJMATA VUAYKUNVERBA — 1998 DIGILAW 601 (GUJ)

J. M. PANCHAL, J. ( 1 ) [his Lordships after stating the facts of the case, and further observed : ( 2 ) THIS appeal, which is filed under Sec. 96 of the Civil Procedure Code. 1908 ("c. P. C. " for short), is directed against the judgment and order dated 1/02/1997 passed by the learned Civil Judge (S. D. ). Morvi. in Jurisdiction Suit No, 46 of 1978 by which the plaint is rejected under Order 7, Rule 1 l (a) of the C. P. C. as not disclosing cause of action. The said order is deemed to be a decree, as defined in Sec. 2 (2) of the C. P. C. ( 3 ) APPELLANT is the original plaintiff. The appellant instituted suit claiming to be the sole heir and successor of Shri Maharaja Mayurdhvajsinhji Mahendrasinhji of Morvi. who died in testate on 22/08/1978. Since the issue raised in the appeal will have to be decided with reference to the averments made in the plaint, it would be relevant to notice, in brief, the claim advanced by the appellant in the plaint on a reference to ara 2 of the plain the genealogy of the contestants ( 4 ) THE appellant claims to be the sole heir and successor to the estate of late shri Mayurdhvajsinhji Mahendrasinhji in accordance with law and custom governing the succession, i. e. , rule of primogeniture under which the senior most male survivor in the senior most line from the original common ancestor is entitled to inherit the properties. The pedigree in para 2 of the plaint shows that late Mayurdhvajsinhji belonged to the branch of Ravajis son Waghji. From the plaint, it is evident that mayurdhvajsinhji was survived by the defendant, who is his mother. The appellants case in para 3 of the plaint is that right from the inception of the State of Morvi, there has been established a uniformly followed custom in Morvi whereby the succession to the estate is governed by the rule of primogeniture under which the eldest son of the deceased, and failing a direct male issue, the senior most male member of the senior most branch of the common ancestor of the deceased, succeeds as sole heir to the entire estate of the deceased. In para 4 of the plaint, the appellant has given instances as to how rule of primogeniture was followed from time of kayaji (1698-1734 ). The appellant has averred in para 4a of the plaint that when late His Highness Ravaji expired in or about 1870 A. D. , he was survived by his widow and two sons and his eldest son Waghji succeeded to the entire estate, to the exclusion of all other relations of the deceased. In para 5 of the plaint, it is stated that when Waghji died on 11-6-1922, his son Lakhdhirji succeeded to the estate. As stated in para 6 of the plaint, the then Ruler of Morvi Lakhdhirji abdicated gadi in favour of his son Mahendrasinhji, who was husband of the defendant, on 21/01/1948. In paras 7 and 8 of the plaint, it is claimed that His Highness mahendrasinhji passed away on 18-8-1957 and his eldest son Mayurdhvajsinhji succeeded to entire estate but as Mayurdhvajsinhji expired intestate on 22/08/1978, the appellant is entitled to inherit all the estate left by the deceased under the rule of primogeniture. ( 5 ) FROM the other averments made in the plaint, it transpires that the State of morvi was a sovereign State subject only to the paramountcy of the British Crown. The Ruler was the supreme legislature, the supreme judiciary and the supreme head of the executive. The Indian Independence Act, 1947 came into force on 15/08/1947 under which the paramountcy of the British Crown lapsed and Morvi became a fully independent sovereign State. In para 12 of the plaint, the appellant has referred to the covenant for the formation of the United States of Kathiawar entered into by the Rulers of certain States including Ruler of Morvi in what was then known as Kathiawar for the formation of the United States of Kathiawar and the covenant had concurrence and guarantee of the Government of India. What is highlighted in this para is that Mayurdhvajsinhji having expired on 22/08/1978, his estate descends to a single heir and in view of provisions of Sec. 5 (ii) of the hindu Succession Act, the other provisions of the said Act do not apply to the estate left by late Mayurdhvajsinhji. Tji. What is highlighted in this para is that Mayurdhvajsinhji having expired on 22/08/1978, his estate descends to a single heir and in view of provisions of Sec. 5 (ii) of the hindu Succession Act, the other provisions of the said Act do not apply to the estate left by late Mayurdhvajsinhji. Tji. The plaint proceeds to state that under Art. XI of the covenant, the Ruler of each covenanting State was entitled to the full ownership, use and enjoyment of all private properties belonging to him on the date of his making over the administration of that State to the Raj Pramukh. According to the plaint, the suit properties were earmarked by Mahendrasinhji as his private properties in the inventory filed by him. The appellant has averred in the plaint that at the conference of the Rulers of the Covenanting States with the Advisers of the Ministry of State held on December 30-31, 1948 and 1/01/1949 at Jamnagar, decisions were taken regarding the properties to be treated as State properties or as private properties of the Rulers and an agreement was also arrived at between the Saurashtra government and late Mahendrasinhji in respect of the settlement of the inventories. As noted earlier, Mayurdhvajsinhji expired on 22/08/1978 and therefore, the appellant filed suit for a declaration that the appellant is entitled to succeed to the entire estate left behind by deceased Mayurdhvajsinhji, the former Ruler of Morvi, including gadi, the regalia, heirloom, palaces, Darbargadh, jewelleries, cash, securities and all other properties, movable and immovable, wherever situated and more particularly described in Annexure "b", produced along with the suit as also for the possession of the said movable and immovable properties. A further prayer was made for permanent injunction restraining the defendant from alienating or encumbering in anywise or otherwise dealing with the properties referred to in annexure "b" produced along with the suit. We note that an application for injunction was submitted in respect of all the properties claimed by the appellant, but at the time of the hearing of the application, it was restricted to the two immovable properties and the movable properties, like fixtures and furniture, situated in the two buildings. The trial Court granted ad interim injunction against the original defendant as prayed for in respect of two immovable properties, situated at Morvi, namely, Darbargadh (State Palace) and new Palace. Ultimately, Appeals from Order Nos. The trial Court granted ad interim injunction against the original defendant as prayed for in respect of two immovable properties, situated at Morvi, namely, Darbargadh (State Palace) and new Palace. Ultimately, Appeals from Order Nos. 244 of 1979 and 269 of 1979 along with Civil Revision Application no. 1309 of 1979 were filed in the High Court and pursuant to orders passed therein, interim arrangement has been continued. ( 6 ) THE respondent contested the suit by filing written statement. Having regard to the pleadings of the parties, the trial Court raised issues for determination at Exh. 7 3/07/1981. ( 7 ) THE respondent submitted an application under Order 7, Rule 11 (a) of the c. P. C on 27/06/1996 at Exh. 191 for rejection of the plaint on the ground that it does not disclose any cause of action. In the said application, it was mentioned that when Mayurdhvajsinhji expired on 22/08/1978, succession to his property was not governed by any rule of primogeniture and the defendant inherited all the properties of Mayurdhvajsinhji under the provisions of the Hindu Succession Act. 1956. What was claimed in the said application was that the non-State private properties in the hands of the last Ruler did not partake the character of any coparcenery property or the ancestral property and such properties in the hands of the Ruler were of his absolute ownership as a result of which the defendant inherited all the properties of Mayurdhvajsinhji. It was asserted in the said application that the plaint did not disclose any cause of action at all and was, therefore, liable to be rejected, more particularly in view of the decisions rendered in the cases of D. S. Meramwala Bhayawala v. Ba Shri Amarha Jethsurbhai, (1968) IX GLR 609 and revathinnl Balagopala Varma v. His Highness Shri Padmanabha Dusa Bala Rama varma (Since Deceased) and Ors. , 1993 Supp. (1) SCC 233. ( 8 ) THE appellant submitted objections to the said application on 15/06/1996 at Exh. 195 and pleaded that though there was no dispute about the principles laid down in the cases of D. S. Meramwala and Revathinnal Balagopala Vanna (supra), the principles enunciated in those cases were not applicable to the facts of the case. as the present case related to the State properties to which rule of primogeniture applies. 195 and pleaded that though there was no dispute about the principles laid down in the cases of D. S. Meramwala and Revathinnal Balagopala Vanna (supra), the principles enunciated in those cases were not applicable to the facts of the case. as the present case related to the State properties to which rule of primogeniture applies. It was claimed in the objections that the customary rule of succession by primogeniture was left untouched and unaffected by 26th Amendment to the constitution. It was further asserted that provisions of the Hindu Succession Act did not apply to the Princes who were signatories to the covenant and as Morvi state was one of the signatories to the covenant, the succession to the suit properties was governed by rule of primogeniture. What was emphasised therein was that on the question whether the suit properties are State properties or private properties of deceased Mayurdhvajsinhji, oral evidence was required to be led and therefore, the plaint should not be rejected as not disclosing cause of action. ( 9 ) THE learned Judge heard the Counsels, for the parties at length. After making reference to the case-law cited at the Bar and by rendering an elaborate judgment. the learned Judge held that rule of primogeniture on the basis of which the plaint was filed and reliefs were claimed stands abrogated. In view of this conclusion, the g. R, U learned Judge rejected the plaint as not disclosing any cause of action, by judgment and order dated 1/02/1997, giving rise to the present appeal. ( 10 ) THE learned Advocate General submitted that the suit was filed by the appellant on 26/12/1978, whereas issues for determination were framed by the learned Judge on 21/07/1981 and therefore, the application filed by the respondent under Order 7. Rule 11 (a) of C. P. C. on 26/06/1996 should not have been entertained by the learned Judge, more particularly when the suit was ripe for hearing. After referring to the issues for determination which were raised by the learned Judge, it was pleaded that without permitting the parties to lead evidence regarding nature of the properties, plaint should not have been rejected under Order 7. After referring to the issues for determination which were raised by the learned Judge, it was pleaded that without permitting the parties to lead evidence regarding nature of the properties, plaint should not have been rejected under Order 7. Rule 1 l (a) of the C. P. C. It was claimed on behalf of the appellant that ignoring the settled principle, namely, that only plaint can be seen for the purpose of deciding case under Order 7, Rule 11 (a) of the C. P. C. , the learned Judge has gone into the merits of the case by referring to the written statement and therefore, the appeal should be allowed. In support of his submissions, the learned Advocate General placed reliance on the decisions rendered in the cases of (I) Ranjeet Mal v. Poonum chand and Aur. , AIR 1983 Rajasthan 1 and (2) Yuvraj Prithvirajsinhji v. Maharani rajendrakunverba and Ors. , 1996 (2) GLH 393 . ( 11 ) MR. S. B. Vakil, learned Counsel for the respondent, pleaded that provisions of Order 7, Rule 11 (a) of the C. P. C. are mandatory and if the plaint does not disclose cause of action, it is the duty of the Court to reject the same. even after issues are raised for determination and therefore, impugned judgment is not liable to be set aside on the ground that the learned Judge exercised powers under Order 7. Rule 1 l (a) of the C. P. C. . after long lapse of time. It was emphasised that while dealing with the application filed under Order 7, Rule 1 l (a) of C. P. C. , the learned Judge has referred to averments made only in the plaint and it is not correct to say that the matter has been decided by the learned Judge on merits, after taking into consideration the written statement filed by the respondent. It was pleaded on behalf of the respondent that on execution of covenant, deceased Mahendrasinhji of Morvi became absolute owner of his personal properties enumerated in the inventory, to which rule of primogeniture was not applicable and therefore, no error was committed by the learned Judge in holding that the plaint did not disclose any cause of action. It was pleaded on behalf of the respondent that on execution of covenant, deceased Mahendrasinhji of Morvi became absolute owner of his personal properties enumerated in the inventory, to which rule of primogeniture was not applicable and therefore, no error was committed by the learned Judge in holding that the plaint did not disclose any cause of action. What was asserted on behalf of the respondent was that the amendment made in the Constitution does not have effect of converting private properties of the Ruler into imputable estate or making applicable rule of primogeniture in view of the provisions of Sec. 4 of the Hindu Succession Act, and therefore, as the rule of primogeniture stands abrogated, the plaint is rightly rejected by the learned Judge. as not disclosing cause of action. It was contended that no one can enforce in successor State any right which he had in the earlier State and which is not recognised by the successor State and as successor State did not recognise rule of primogeniture, impugned order should not be interfered with in the appeal. In support of his submissions, learned Counsel for the respondent placed reliance on the decisions rendered in the cases of (1) D. S. Merumwala Bhayawala v. Ba Shri Amarba jethsurbhai. (1968) IX GLR 609; (2) Revathinnal Balagopala Varma v. His Highness shri Padmanabha Dasa Bala Rama Varma (Since Deceased) and Ors. , 1993 Supp. (1) SCC. 233; (3) T. Arivandadam v. T. Satyapal, AIR 1977 SC 2421 : (4) Azhar hussain v. Rajiv Gandhi, AIR 1986 SC 1253; (5) Samur Singh v. Kedar Nath and ors. , AIR 1987 SC 1926 ; (6) I. T. C. Ltd. v. Debts Recovery Appellate Tribunal and ors. , 1998 (2) SCC 70 ; (7) (Suit.) Shantadevi P. Gaekwad v. Shri Sangramsinh P. Gaekwad. 1995 (2) GLH 461 ; (8) Nayak Vajesingji Joravarsingji and Ors. v. The secretary of State for India in Council, AIR 1924 P. C. , 216; (9) The State of Bombay v. Dr. R. B. Chandrachud, 63 Bom. LR 442; (10) State of Saurashtra (now Gujarat) v. Mohamad Abdulla, AIR 1962 SC 445 ; (11) Govindrao and Ors. v. State of Madhya pradesh and Ors. , AIR 1982 SC 1201 and (12) Bhaiya Ramanuj Pratap Dec v. Lalu maheshanuj Pratap Deo and Ors. , AIR 1981 SC 1937 . R. B. Chandrachud, 63 Bom. LR 442; (10) State of Saurashtra (now Gujarat) v. Mohamad Abdulla, AIR 1962 SC 445 ; (11) Govindrao and Ors. v. State of Madhya pradesh and Ors. , AIR 1982 SC 1201 and (12) Bhaiya Ramanuj Pratap Dec v. Lalu maheshanuj Pratap Deo and Ors. , AIR 1981 SC 1937 . ( 12 ) HAVING noticed brief summary of the plaint and prayers earlier, it would be relevant to refer to the provisions of Order 7. Rule 1 l (a) of the C. P. C. . and the scope thereof. Order 7. Rule 1 l (a) of the C. P. C. provides that the plaint shall be rejected in case where it does not disclose a cause of action. Order 7. Rule 1 l (a) of the C. P. C is mandatory and if it is found that the plaint does not disclose a cause of action, the Court has no option but to reject the plaint. To find out whether a plaint discloses a cause of action or not, the Court has to look only to the averments made in the plaint. When a plaint is based on a document filed along with the plaint. it-can, however, be considered to ascertain if plaint discloses any cause of action. Cause of action means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. The words "cause of action" mean the whole bundle of material facts which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit. What is to be done by the Court at the stage of deciding as to whether the plaint discloses any cause of action or not is to find out from the allegation of the plaint itself as to whether a bogus, wholly vexatious or frivolous litigation is sought to be initiated under the garb of ingenuous drafting of the plaint or not. because it is the duty of the Court to guard against the mischief of a litigant misusing the process of Court by entering into a false litigation merely for the purpose of harassing the other party and to nip in the bud the litigation which is sham and shabby in character. because it is the duty of the Court to guard against the mischief of a litigant misusing the process of Court by entering into a false litigation merely for the purpose of harassing the other party and to nip in the bud the litigation which is sham and shabby in character. In order to find out whether the plaint discloses a cause of action or not, the averments made in the plaint and documents annexed thereto should be scrutinised meaningfully and if on such scrutiny it is found that the plaint does not disclose cause of action, it has got to be rejected in view of the provisions of Order 7, Rule 11 (a)of the C. P. C. When it is said that the Court should take into consideration the averments made in the plaint for the purpose of deciding the question whether the averments made in the plaint disclose cause of action or not. it does not mean that the Court is precluded from applying the statutory provisions or case-law to the averments made in the plaint. If an assertion made in the plaint is contrary to statutory law or case-law, it cannot be considered as disclosing cause of action. In i. T. C. Ltd. (supra), bank had filed suit against the appellant and others and claimed relief for a sum of Rs. 52,59,639-66 ps. After the suit was filed, it was transferred to the Debt Recovery Tribunal. Before the Tribunal, an application was filed by the appellant under Order 7. Rule 11 of the C. P. C. . for rejecting the plaint, so far as appellant was concerned, on the ground that no valid cause of action had been shown against the appellant. That application was rejected by the Tribunal. Against the said order, an appeal was filed before the Debts Recovery Appellate Tribunal. The appeal was dismissed in limine. Thereupon, a writ petition was filed by the appellant, which was dismissed holding that the question should be decided at the trial. Against that judgment, the appellant had filed an appeal before the Division bench of the High Court, which was also dismissed. The matter was thereafter carried before the Supreme Court. The appeal was dismissed in limine. Thereupon, a writ petition was filed by the appellant, which was dismissed holding that the question should be decided at the trial. Against that judgment, the appellant had filed an appeal before the Division bench of the High Court, which was also dismissed. The matter was thereafter carried before the Supreme Court. After taking into consideration the decided cases on the point whether there was fraudulent movement of goods under which letter of credit was obtained which in turn entitled the bank to file the suit, the Supreme Court held that. that point was already decided by decision of the Supreme Court in U. P. Co-operative Federations case and therefore, the allegation of non-supply of goods by the sellers to the buyers did not by itself amount, in law, to a plea of "fraud" as understood in this branch of the law and hence by merely characterising alleged non-movement of goods as "fraud", the bank was not entitled to claim that there was a cause of action based on fraud or misrepresentation. While allowing the appeal, what is emphasised by the Supreme Court is that the question whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7, Rule 11 of the C. P. C. has to be decided with reference to averments made in the plaint and clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint. In view of this decision of the Supreme Court, it is evident that if something purely illusory has been stated with a view to get out of Order 7, Rule 11 of the C. P. C. by resorting to clever drafting, it cannot be said that the plaint discloses a cause of action and if a clear right to sue is not shown in the plaint, it is liable to be rejected. ( 13 ) IN the light of scope of Order 7, Rule 1 l (a) of the C. P. C. , we would now proceed to examine different submissions made on behalf of the appellant. The submission that the plaint was presented on 26/12/1978, whereas issues for determination were framed by the learned Judge on 21/07/1981 and therefore. ( 13 ) IN the light of scope of Order 7, Rule 1 l (a) of the C. P. C. , we would now proceed to examine different submissions made on behalf of the appellant. The submission that the plaint was presented on 26/12/1978, whereas issues for determination were framed by the learned Judge on 21/07/1981 and therefore. the application filed by the respondent under Order 7. Rule 1 l (a) of the C. P. C. , on 26/06/1996 should not have been entertained at such a long distance of time, has no substance. As noted earlier, the provisions of Order 7, Rule 11 (a) of the Civil procedure Code are mandatory in nature. It is the duty of the Court to reject the plaint which does not disclose cause of action. If a plaint can be rejected at threshold of the proceedings, we do not see any reason as to why it cannot be rejected at any subsequent stage of the proceedings. Even if after framing of issues, the basic defect in the plaint persists, namely, absence of cause of action, it is always open to the contesting defendants to insist that the plaint be rejected under Order 7. Rule 11 of the C. P. C. , and the Court would be acting within its jurisdiction in considering such a plea. Order 7, Rule 11 of the C. P. C. does not place any restriction or limitation on the exercise of the Courts power. It does not either expressly or by necessary implication provide that power under Order 7, Rule 11 of the C. P. C. should be exercised at a particular stage only. In the view we are taking, we are fortified by the judgment of the Supreme Court rendered in the case of I. T. C. Ltd. (supra ). Therein, the suit was filed by the Bank in the year 1985. In 1995, it was transferred to Debt Recovery Tribunal and thereafter an application was filed by the appellant under the provisions of Order 7. Rule 11 of the C. P. C. . for rejection of the plaint as not disclosing any cause of action against the appellant. The application filed by the appellant was rejected not only by the Tribunal and Appellate Tribunal, but also by the High Court. Rule 11 of the C. P. C. . for rejection of the plaint as not disclosing any cause of action against the appellant. The application filed by the appellant was rejected not only by the Tribunal and Appellate Tribunal, but also by the High Court. When the matter reached before the Supreme Court in the year 1997, it was contended that the power under Order 7, Rule 11 of the C. P. C. , should not be exercised after such a long lapse of time, more particularly when issues were framed. That plea has been negatived by the Supreme Court in following terms :"13. We may state that in the context of Order 7, Rule 11 C. P. C. , a contention that once issues have been framed, the matter has necessarily to go to trial has been clearly rejected by this Court in Azhar Hussain v. Rajiv Gandhi (SCC p. 324) as follows : (SCC Para 12)"in substance, the argument is that the Court must proceed with the trial, record the evidence, and only after the trial. . . . . is concluded that the powers under the Civil Procedure Code for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court. . . ". The abovesaid judgment which related to an election petition is clearly applicable to suits also and was followed in Samar Singh v. Kedar Nath. We, therefore, hold that the fact that issues have been framed in the suit cannot come in the way of consideration of this application filed by the appellant under Order 7, Rule 11 C. P. C. " ( 14 ) IN view of settled legal position, plea that powers under Order 7, Rule 11 (a) of the C. P. C. should not have been exercised after framing of issue cannot be upheld and is hereby rejected. ( 15 ) PLACING reliance on the observations made in para 16 of the impugned judgment, it was argued by the learned Advocate General that the trial Court has taken into consideration the defence raised by the respondent in the written statement and as the application filed under Order 7, Rule 11 (a) of the C. P. C. is not decided on well-settled principle, namely, that only averments made in the plaint should be looked into, the impugned order should be set aside. In paragraph 16 of the impugned judgment, it is held by the learned Judge that the appellant is a member of the branch of family of Harbhamji and on the death of Mayurdhvajsinhji, the hurdle of applicability of Sec. 4 of the Hindu Succession Act was removed, and thereafter, the family of deceased Mayurdhvajsinhji was a coparcenery Hindu family of which the appellant is not a member. It is further held therein that under Sec. 8. of the hindu Succession Act, the original defendant is entitled to inherit properties of deceased Mayurdhvajsinhji, being Class I heir as per Schedule. On close scrutiny of the plaint and the written statement, we find that the learned Judge while deciding the present application has not taken into consideration the different pleas raised in the written statement. The learned Judge was aware of the limitations placed on the power of the Court while deciding an application filed under Order 7, Rule 11 (a) of the Civil Procedure Code, namely, that averments made in plaint and documents produced along with the plaint can be looked into to find out whether the plaint discloses a cause of action or not. This is quite apparent from what is held by the learned Judge in paragraphs 5 and 7 of the impugned judgment. In paragraph 9 of the plaint, the appellant has averred that deceased Mayurdhvajsinhji had died intestate and had no right to make any will and his four sisters and two step-mothers have no right at law to claim any of his properties, rights or interest. It is also stated in the said paragraph that the defendant claims to be the heir of deceased mayurdhvajsinhji as his mother under the Hindu Succession Act. 1956 and as such she claims to have ownership and be in possession of the estate of the deceased. It is also stated in the said paragraph that the defendant claims to be the heir of deceased mayurdhvajsinhji as his mother under the Hindu Succession Act. 1956 and as such she claims to have ownership and be in possession of the estate of the deceased. Again, in paragraph 23a of the plaint, it is asserted that the estate left by deceased mayurdhvajsinhji was impartible and as custom of primogeniture was consistently followed both before and after former ancestor Thakore Shri Ravaji. it was not competent to any holder thereof to make any valid will in respect of either the whole or any part of the said estate. It is further emphasised in the said paragraph that if any will is found to have been made either by late Lakhdhirji or Mahendrasinhji, the same is not binding on the plaintiff and the properties affected thereby continue to form part and parcel of the impartible estate. We find that in the light of the assertions made in these paragraphs, findings have been recorded by the learned judge in paragraph 16 of the impugned judgment. While recording findings in paragraph 16. the learned Judge has taken into consideration the averments and assertions made in the plaint. Therefore, it is not correct to say that the learned judge while deciding the application filed under Order 7. Rule 1 l (a) of the C. P. C. , has taken into account the defence raised by the respondent in the written statement. The learned Judge has not decided legal question raised in the written statement and therefore, ratio laid down in case of Ranjeet Mal (supra) does not apply to the facts of the case. Under the circumstances, the impugned order cannot be assailed on the ground that while deciding application in question, the trial Court took into consideration the different defences raised by the respondent in her written statement. ( 16 ) THE learned Advocate General submitted that application Exh. Under the circumstances, the impugned order cannot be assailed on the ground that while deciding application in question, the trial Court took into consideration the different defences raised by the respondent in her written statement. ( 16 ) THE learned Advocate General submitted that application Exh. 191 filed by the respondent under Order 7, Rule 1 l (a) of the C. P. C. is decided by the trial court as if a suit were being tried and as the learned Judge has gone into merits of the pleas raised by the plaintiff, which he was not entitled to, the impugned order should be set aside, more particularly when an attempt is made to dispose of the whole suit by resorting to a short-cut. In our view. a fair reading of the impugned judgment indicates that the learned trial Judge has not resorted to any short-cut at all. The learned Judge has taken into consideration the provisions of Constitution of India, the Hindu Succession Act and the case-law decided by the Supreme Court and has applied the same to the facts pleaded in the plaint. Application filed by the respondent under Order 7. Rule 1 l (a) of the C. P. C. is not tried by the learned judge as if a suit were tried. What is taken into consideration by the learned Judge is the averments made in the plaint and nothing else. However, the learned Judge was not precluded from applying the statutory provisions and case-law to the facts pleaded in the plaint. The exercise undertaken by the learned Judge cannot be construed as deciding application Exh. 191 as trial of the suit. Therefore, we do not find any substance in this contention. ( 17 ) THE learned Judge, after considering the provisions of the Constitution of india, the Hindu Succession Act, 1956 and the law declared by the Supreme Court, has come to the conclusion that the rule of primogeniture, as pleaded by the appellant in the plaint, stands abrogated and therefore, the plaint is liable to be rejected, as it does not disclose any cause of action. Though in the reply to Exh. 191. Though in the reply to Exh. 191. which was filed under the provisions of Order 7, Rule 11 (a) of the C. P. C. , by the respondent, the appellant had pleaded that rule of primogeniture is applicable and though in the memorandum of first appeal, it is asserted that the learned Judge has committed an error in holding that rule of primogeniture came to an end in view of the provisions of Sec. 5 (ii) of the Hindu Succession Act, no attempt was made on behalf of the appellant to submit before us that rule of primogeniture has not ceased to apply to the facts of the present case. The plea was not raised, on the ground that deciding the said question amounts to going into the merits of the case which is not permissible while hearing an application submitted under Order 7, Rule 11 (a) of the C. P. C. ( 18 ) IN our view, considering the question whether rule of primogeniture has ceased to apply or not cannot be termed as going into the merits of the case at all. On careful scrutiny of the plaint, it becomes evident that the whole case of the appellant in the plaint is based on the footing that deceased Mayurdhvajsinhji having expired interstate, the appellant is entitled to inherit all the properties left by him under the rule of primogeniture. Therefore, in order to find out whether the plaint discloses a cause of action or not, it becomes relevant to consider whether the rule of primogeniture still subsists or not. In fact. rule of primogeniture is the sole and entire basis of the plaint and therefore, if the Court addresses itself to the question whether the said rule of primogeniture subsists or not. it cannot be said that the court is deciding the matter on merits. As observed earlier, while deciding application filed under Order 7, Rule 1 l (a) of the C. P. C. , the Court has to apply the statutory law as well as case-law to the facts pleaded in the plaint and find out whether any cause of action is disclosed or not. If such an attempt is made, it can hardly be said that merits of the case are taken into consideration while deciding application for rejection of the plaint as not disclosing any cause of action. If such an attempt is made, it can hardly be said that merits of the case are taken into consideration while deciding application for rejection of the plaint as not disclosing any cause of action. ( 19 ) WE will now proceed to consider the question whether the finding recorded by the learned Judge that rule of primogeniture stands abrogated in correct or not. The trial Court, on consideration or relevant provisions of the Constitution of India, hindu Succession Act, 1956 and the case-law decided by the Supreme Court as well as Gujarat High Court, has come to the conclusion that rule of primogeniture does not subsist. There is no manner of doubt that Morvi was a sovereign State. In reality, there was no distinction between State property and the property privately owned by a Ruler since the Ruler was the owner of all the properties in the State. A covenant was entered into by the Rulers of Kathiawar State, including deceased Mahendrasinhji. who was Ruler of Morvi, for the formation of the United State of Kathiawar. Under art. XI ( 1) of the covenant, the Ruler of each covenanting State was entitled to the full ownership, use and enjoyment of all private properties as distinct from State properties belonging to him on the date of his making over the administration of that State to the Raj Pramukh. Under Clause (2) of the said Article, a Ruler was required to furnish to the Raj Pramukh an inventory of all immovable properties, securities and cash balances held by him as such private property. It is not in dispute that deceased Mahendrasinhji had power to demarcate certain properties as his private properties. Deceased Mahendrasinhji had made an inventory of his private properties and submitted it to Raj Pramukh as required by Article XI of the covenant. The question to be considered, therefore, is whether rule of primogeniture will be applicable to the properties mentioned in the inventory prepared by deceased mahendrasinhji after coming into force of Hindu Succession Act. In order to resolve the controversy, it will be necessary to examine the relevant provisions of the Hindu succession Act, 1956. Section 4 (1 ) (a) of the said Act lays down :"4. In order to resolve the controversy, it will be necessary to examine the relevant provisions of the Hindu succession Act, 1956. Section 4 (1 ) (a) of the said Act lays down :"4. Overriding effect of Act - (1) Save as otherwise expressly provided in this Act - (a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. " ( 20 ) A bare perusal of Sec. 4 would indicate that any custom or usage as part of Hindu Law in force will cease to have effect after the enforcement of Hindu succession Act with respect to any matter for which provision is made in the Act. If rule of lineal primogeniture in estate left by deceased Mahendrasinhji is a customary one, it will certainly cease to have effect. We are fortified in our view by the decision of the Supreme Court rendered in the case of Bhaiya Ramanuj Pratap deo v. Lalu Maheshanuj Pratap Deo and Ors. , AIR 1981 SC 1937 . Section 5 of the said Act stands as an exception to Sec. 4 of the Act referred to above and inter alia provides that the said Act will not apply to any estate which descends to a single heir by the terms of covenant or agreement entered into by the Ruler of any indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act. The next question which would immediately arise for consideration of the Court is whether the estate which descended to deceased mayurdhvajsinhji is an estate governed by the terms of any covenant or agreement entered into by the Ruler with Government of India and therefore, covered under the provisions of Sec. 5 (ii) of the Hindu Succession Act. . ( 21 ) IN the case of Pratapsinhji N. Desai v. Commissioner of Income-tax, Gujarat iii. 1983, Vol. 139 ITR 77, the assesse ascended to gaddi and became the Ruler of Patdi in 1941. He inherited certain immovable properties under the rule of primogeniture. In 1948, the State of Patdi merged in the Kathiawar State. . ( 21 ) IN the case of Pratapsinhji N. Desai v. Commissioner of Income-tax, Gujarat iii. 1983, Vol. 139 ITR 77, the assesse ascended to gaddi and became the Ruler of Patdi in 1941. He inherited certain immovable properties under the rule of primogeniture. In 1948, the State of Patdi merged in the Kathiawar State. Art. XIII of the covenant, which is similar to one in the present case, entered into at the time of merger, ensured and guaranteed succession to the gaddi of each covenanting State according to law and custom. The question arose as to whether for the assessment years 1967-68 to 1971-72, income derived from such properties was assessable as that of the assessee in the status of an individual and as to what was the effect of clause XIII of the covenant so far as applicability of the provisions of the Hindu succession Act, 1956 were concerned. The Division Bench, consisting of B. J. Divan, c. J. , and B. K. Mehta, J. , after taking into consideration the entire history of the merger, accession, rule of primogeniture, etc. . has held that rule of primogeniture was nullified after coming into force of the provisions of Hindu Succession Act and the estate left by the Ruler was not an estate governed by covenant which was entered into between Ruler and the Government of India and therefore, exception carved out in Sec. 5 was not applicable to those properties. The Division Bench has made the following pertinent observations :-"in view of this clear legal position which can be spelt out by a mere reading of the relevant sections, we are of the opinion that the only question which requires to be considered is, whether the estate with which we are concerned in this reference has -been saved and excepted under Sec. 5 (ii) of the Hindu Succession Act. In order to answer this question, we have to examine what is provided in the covenant entered into between the rulers of the erstwhile States of Kathiawar. The said covenant is to be found at p. 239 of the volume of the White Paper on Indian States, issued by the Government of India in the Ministry of States. In order to answer this question, we have to examine what is provided in the covenant entered into between the rulers of the erstwhile States of Kathiawar. The said covenant is to be found at p. 239 of the volume of the White Paper on Indian States, issued by the Government of India in the Ministry of States. The convenant was entered into for purposes of implementing the resolution of the erstwhile rulers of certain States of Kathiawar to entrust to a Constituent Assembly consisting of elected representatives of the people, the drawing up of a democratic Constitution for that State within framework of the Constitution of India and to secure for that purpose the establishment of a State comprising the territories of the numerous States, Estates and Talukas in kathiawar with a common executive, legislature and judiciary. Article VI of the covenant enjoined that the ruler of each covenanting State would, as soon as may be practicable, and in any event not later than 15/04/1948, make over the administration of his State to the Raj Pramukh, with the result that all rights, authority and jurisdiction belonging to the ruler which appertained, or were incidental, to the government of the covenanting State would vest in the United States of Kathiawar, as it was formerly called, and also all the assets and liabilities of the covenanting state would be the assets and liabilities of the United State of Kathiawar of the said new State. Article X entitled the ruler of each covenanting State to receive annually from the revenue of the United State a certain sum by way of his privy purse. Article xi entitled the ruler of each covenanting State to the full ownership, use and enjoyment of his private properties as distinct, from State properties. Articles XII and XIII are relevant for purposes of this reference and, therefore, they are reproduced in extenso :"article XII :- The ruler of each covenanting State, as also the members of his family shall be entitled to all the personal- privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day of August, 1947. Article XIII:- The succession, according to law and custom, to the Gaddi of each covenanting State, and to the personal rights, privileges, dignities and titles of the ruler thereof, is hereby guaranteed. Article XIII:- The succession, according to law and custom, to the Gaddi of each covenanting State, and to the personal rights, privileges, dignities and titles of the ruler thereof, is hereby guaranteed. (2) Every question of disputed succession in regard to a covenanting State shall be decided by the Council of rulers after referring it to the High Court of Kathiawar and-in accordance with the opinion given by that High Court. "the other articles are not material for the present purposes. Article XIII, inter alia, ensured and guaranteed the succession to the Gaddi of each covenanting State, according to law and custom. We have not been able to appreciate how the Tribunal reached the conclusion that this covenant has ensured and guaranteed the rule of primogeniture for succession to all other properties. Rule of primogeniture, as stated above, may be general or lineal, and by and large, the lineal rule of primogeniture would govern the question of succession to impartible estates. Article XIII, in our opinion, only guaranteed the succession to the Gaddi of each covenanting State according to law and custom. In our opinion, therefore, it is absolutely unwarranted to read in this Article that the rule of primogeniture has been guaranteed in general for succession to all types of estates by the descendants of the erstwhile rulers of kathiawar. The learned Advocate General for the assessee urged that Sec. 5 (ii) of the Hindu Succession Act exempts only that estate which descends to a single heir by the terms of any covenant or agreement entered into by the ruler of any Indian state with the Government of India or by any enactment passed before the commencement of the Hindu Succession Act, and in his submission if the terms of the relevant covenant or the agreement do not prescribe devolution of a particular estate to a single heir, the benefit of the exception is not available. There is considerable force in this contention of the learned Advocate General, but, in our opinion, this larger question is not required to be gone into and determined since Art. XIII of the covenant, with which we are concerned in this reference, guarantees only that law or custom of succession which are applicable to the Gaddi of each covenanting State. There is considerable force in this contention of the learned Advocate General, but, in our opinion, this larger question is not required to be gone into and determined since Art. XIII of the covenant, with which we are concerned in this reference, guarantees only that law or custom of succession which are applicable to the Gaddi of each covenanting State. It did not recognise the rule of primogeniture for succession to all and every estate of the rulers of Kathiawar, much less specify the estate which descended to a single heir by the terms of the said covenant or agreement. It should be noted at this stage that the constitution (26th Amendment Act), 1971, by its Sec. 3 introduced Art. 366 by which the recognition granted to the rulers of Indian States ceased and the privy purses were abolished. This 26th Amendment was an event of historical importance and it is really surprising how the Tribunal overlooked such a significant event in the history of this country and reached the conclusion that since Art. XIII guaranteed the law and custom of succession to the Gaddi, all estates, whatever they may be, were impartible estates, the succession to which was governed by the rule of primogeniture. In our opinion, the Tribunal clearly erred in construing this Article and reaching the conclusion as it did in clear disregard of the apparent provisions contained in Secs. 4 and 5 of the hindu Succession Act, and the effect thereof. ( 22 ) WE are in respectful agreement with the view expressed by the Division bench in the case of Pratapsinhji N. Desai (supra) and following the same, we hold that the learned Judge did not commit any error in recording a finding that the plaint does not disclose a cause of action because rule of primogeniture stands abrogated. The effect of such covenant has been examined by the Supreme Court in the case of Revathinnal Balagopala Varma (supra ). In the said case. rulers of Travancore and Cochin, with the concurrence and guarantee of the Government of India, entered into a covenant dated 27/05/1949 for the formation of United State of Travancore and Cochin. The said covenant is similar to the covenant in the present case. In the said case. rulers of Travancore and Cochin, with the concurrence and guarantee of the Government of India, entered into a covenant dated 27/05/1949 for the formation of United State of Travancore and Cochin. The said covenant is similar to the covenant in the present case. The maharaja of Travancore, in pursuance of the relevant Article of the covenant, had declared certain properties as his private properties, which declaration was accepted by the Government of India. The Supreme Court in pursuance of the covenant, held that the properties so declared by the Maharaja and accepted by the Government of India as his private properties, were his personal properties. The relevant observations are to be found in paragraphs 51 to 58 and 81 to 88 of the reported judgment. ( 23 ) REVERTING to the decision rendered in the case of Yuvraj Prithvirajsinhji (supra) on which heavy reliance is sought to be placed on behalf of the appellant, we find that on the facts of that case, the Division Bench came to the conclusion that the plaint in that case did disclose a cause of action. We further find that the cause of action in that case was based upon such facts which, if admitted to be true, would disclose a cause of action. The Division Bench of that case was dealing with a suit for partition filed by son of a ruler on express allegation that there were joint family properties held by the ruler and the suit related to those joint family properties. As held in Revathinnal Balagopala Varma s case (supra), a ruler was entitled to declare that certain properties would be held as joint family properties because he was the absolute owner of all the properties in the State. Therefore, in the said case. the Division Bench held that the plaint was not liable to be rejected as not disclosing cause of action and that it was necessary to go to trial for ascertaining correctness or otherwise of the facts pleaded in the plaint. In our view, the observations made in paragraph 40 of the said decision are not applicable to the facts of the present case and appeal cannot be accepted on the ground that the plaint discloses a cause of action. In our view, the observations made in paragraph 40 of the said decision are not applicable to the facts of the present case and appeal cannot be accepted on the ground that the plaint discloses a cause of action. ( 24 ) HAVING regard to the averments made in the plaint and the covenant which is produced by the appellant with the plaint, we find that the plaint does not disclose a cause of action. Once the Supreme Court has decided that rule of primogeniture stands abrogated after coming into force of the Hindu Succession Act, 1956, it is not open to the appellant to contend otherwise. Hence, it cannot be said that the plaint based solely on the principle of primogeniture discloses a cause of action. The plaint, therefore, is rightly rejected under the provisions of Order 7, Rule 1 l (a) of the C. P. C. We do not find any error in the order passed by the learned trial Judge so as to warrant interference in the present appeal. The appeal, therefore, is liable to be dismissed. For the foregoing reasons, the appeal fails and is dismissed with no order as to costs. Interim relief granted earlier is hereby vacated. .