A.N. Divecha, J.
1. A battle royal, in the true sense of the word, if without bloodshed, has vehemently been fought in this Court. Weapons of warfare have been books, documents and oral arguments. The battleline was drawn between one son of the Royal Family of Gaekwad on the one side and his mother and his elder brother on the other. The earlier venue was the Court of the Civil Judge (S.D.) at Vadodara. The cause of the fight has been partition of the properties left behind by the former Ruler of Baroda by the name of Maharaja Fatesinhrao Gaekwad.
2. The appeal from order has arisen from the order passed by the learned trial Judge on 7th August, 1992 below the application at Exhibit-5 in Special Civil Suit No. 725 of 1991. The revisional application is directed against the order passed by the same learned trial Judge on the same day below the application at Exhibit-6 in the very special suit. By his order below the application at Exhibit-5, the learned trial Judge has granted a sort of injunction directing the appellants in this appeal to maintain status quo till the suit in question is heard and finally disposed of with respect to the properties, both movable and immovable, shown in the schedule in the light of paragraph 21 of the plaint. Thereunder the appellants herein were further directed to maintain separate accounts for the properties involved in the litigation, and also of all the income and incidental expenses from the date of the suit till the final disposal. The remaining part of the order is not very material for the purpose of the appeal. So far as the order below the application at Exhibit-6 is concerned, the application of the re-visional petitioner for inventory by appointment of a Commissioner under Order 20, Rule 9 read with Order 39, Rule 6 of the Civil Procedure Code, 1908 (the Code for brief) has come to be rejected by the aforesaid order passed on 7th August, 1992. The order below the application at Exhibit-5 has aggrieved the original defendants and they have, therefore, preferred this appeal under Order 43, Rule 1 of the Act against the said order. So far as the order below the application at Exhibit-6 is concerned, the original plaintiff is aggrieved thereby and he has, therefore, invoked the revisional jurisdiction of this Court under Section 115 of the Code. Since common questions of fact and law are found arising in both these matters, I have thought it fit to dispose of both these matters by this common judgment of mine.
3. It may be mentioned that on behalf of the original plaintiff certain paper books have been prepared and handed over to this Court. These paper books are in six volumes. Each volume is a separate entity except Volume No. 1 which is divided in two parts as Volume No. 1-A and Volume No. 1-B.
4. The facts giving rise to these two proceedings may be summarised thus : The parties belong to the Royal Family of Gaekwad in Baroda (now Vadodara). Late Maharaja Fatesinhrao Gaekwad was the last recognised Ruler in the dynasty of Gaekwads. He breathed his last on 1st September, 1988. He died intestate. He was not survived by his widow or any child of his. As the last recognised Ruler, he was possessed of certain non-State private properties. He also owned certain personal properties of his own. Those personal properties of ownership of the late last Ruler are not the subject-matter of this litigation. The subject-matter of this litigation, even at the cost of repetition, may be reiterated to be the non-State private properties of his in his capacity as the last recognised Ruler of Baroda. On his having left for his heavenly abode intestate and without leaving behind him his widow or any progeny of his own, the respondent to the appeal has put forward his claim to the subject-matter of this appeal in equal share with his elder brother who is the second appellant in the appeal. It would be quite proper if the parties to these proceedings are referred to as they were arraigned before the trial Court. The respondent to the appeal had instituted the suit for partition of the subject-matter of this litigation and the suit was filed against his mother and elder brother as the defendants. The mother has been arraigned as defendant No. 1 and the elder brother as defendant No. 2.
5. It would be quite proper to look at some historical aspects of the matter. It is not necessary to refer to the history starting from the founder of the dynasty. The limited reference in that regard would be sufficient if it is observed that the rule of primogeniture is found followed all throughout. It may be mentioned that Shri Sanghi for the defendants has disputed this position. For the time being, I leave aside that dispute for the purpose of this narration. Prior to the last recognised Ruler, was on the throne late Maharaja Pratapsinhrao Gaekwad. It may be mentioned that he was the recognised Ruler of Baroda even during the British rule in India. His sovereignty was subjected only to the British paramountcy. Except with limited subjection charged with certain restrictions, he was the sovereign Ruler in Baroda. As a sovereign Ruler, he was admittedly the absolute owner of the properties belonging to the Crown in Baroda. On coming into force of the Indian Independence Act, 1947, the shackles of the British paramountcy so far as Baroda is concerned were removed and it regained its original full sovereignty. He appears to have been persuaded to enter into a covenant with the Dominion of India sometime on or around 21st March, 1549. A copy thereof is at page 62 in Volume IV of the Paper Book. It appears that, after putting his signature on the covenant, the then Ruler had come disputes with the then Government of India. That resulted in his deposition by the order passed on 12th April, 1951. Its copy is at page 171 in Volume IV of the Paper Book. By the very same order, his elder son styled as Yuvaraj Fatesinhrao Gaekwad was recognised as the Ruler of Baroda. He thereupon became its Ruler and incidentally became the last recognised Ruler. Thereafter, by his letter of 14th April, 1951, the President of India congratulated Maharaja Fatesinhrao Gaekwad on his recognition as the successor to the Gaddi (throne) of Baroda. A xerox copy of the aforesaid letter of 14lh April, 1951 is at page 173 in Volume IV of the Paper Book. At page 187 in the same volume of the Paper Book is a certificate issued by the Government of India declaring that, as the recognised Ruler Maharaja Fatesinhrao Gaekwad became the sole successor to all private properties, movable and immovable, held by his predecessor Maharaja Pratapsinhrao Gaekwad. A similar certificate issued on 1st January, 1961 is at page 153 in the same volume, it may be mentioned at this stage that Maharaja Pratapsinhrao Gaekwad breathed his last on 19th July, 1968. It may also be mentioned that, even when he was de-recognised as a Ruler by the order passed on 12th April, 1951 (at page 171 in Volume IV of the Paper Book), he continued to remain the owner of his personal properties. His ownership qua the non-State private properties came to an end on his de-recognition as the Ruler of Baroda. That appears to be the effect of the aforesaid order passed on 12th April, 1951. So far as his personal properties were concerned, they are not the subject-matter of this litigation. Coming back to the Rulership of Maharaja Fatesinhrao Gaekwad, he continued to be the recognised Ruler of Baroda till the Constitution (Twenty-sixth Amendment) Act, 1971 (the 26th Amendment for brief) came into force. It may be mentioned that the effect of instruments like the covenant (at page 62 in Volume IV of the Paper Book) entered into by the Government of India with different Rulers was incorporated in the Constitution of India under Articles 291 and 362. Both these Articles came to be deleted by the 26th Amendment. Article 363-A was also introduced in the Constitution by the very same 26th Amendment. Consequently, Maharaja Fatesinhrao Gaekwad lost his recognition as the Ruler of Baroda on coming into force of the aforesaid 26th Amendment. I have, therefore, thought it fit to refer to him as the last recognised Ruler. It has come on record that on the demise of Maharaja Fatesinhrao Gaekwad on 1st September, 1988, defendant No. 2's coronation has taken place. He has, however, never been recognised as a Ruler of Baroda by the Government of India. The intestate demise of the last Ruler on 1st September, 1988 gave rise to disputes between the parties as to succession to his non-State private properties. According to the plaintiff, the properties in the hands of the last recognised Ruler were in the nature of ancestral properties and the plaintiff had his one-half share therein in accordance with the prevalent custom in Baroda. The defendants repudiated his claim. The parties have therefore chosen to fight out their battle of rights in the competent Court at Baroda by means of a suit proceeding. It may be mentioned that the plaintiff has filed a suit against the defendants for partition and for possession of his one-half share in the subject-matter of the litigation. That is how the battle royal has begun so far as the suit is concerned. It has been registered as Special Civil Suit No. 725 of 1991. Applications for injunction and appointment of a Commissioner have been made therein by the plaintiff and they have been taken on record as Exhibits 5 and 6.
6. It may be clarified at this stage that the Ruler like the founder of the dynasty of Gaekwad in Baroda was a sovereign in true sense. He was the absolute owner of all the properties belonging to the Crown. No other person including a Member of the Royal Family could lay any claim whatsoever in the sovereign property. It appears that the British rule in India resulted in some sort of covenant or understanding or treaty between such Rulers and the British Government. It resulted in acceptance of British paramountcy on the part of Indian Rulers of what is popularly known as Princely States. On attainment of independence by India, the Government of India also persuaded such Rulers to enter into similar covenant. As aforesaid, the covenant signed by Maharaja Pratapsinhrao Gaekwad is at page 63 in Volume IV of the Paper Book. Under that covenant, the properties belonging to the Crown were classified into two categories, namely, the State Properties and the non-State private properties. Thereunder, the Ruler was declared to be the absolute owner of the non-State private properties. Such non-State private properties might include the palace, the crown, the sceptre, the royal jewellery and the like, both movable and immovable properties. Such properties would not certainly include purely personal properties which a Ruler might have acquired in his individual capacity and not by virtue of conferment of absolute ownership under any covenant or treaty. For example, a Ruler might have written a book and that might have fetched a handsome royalty. That amount of royalty would purely be a personal property and it would not be a part of any non-State private properties. This distinction also appears in the ruling of the Supreme Court in the case of His Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojini Devi, reported in 1994 (1) SCC (Supp) 734. For the purpose of clarification, it may be reiterated that the subject-matter) of the litigation from which these proceedings have arisen is the non-State private properties in the hands of the last Ruler, named, Maharaja Fatesinhrao Gaekwad.
7. According to the plaintiff, Maharaja Fatesinhrao Gaekwad got his properties in succession from his predecessor on account of the prevalent rule of primogeniture. The defendants have disputed the existence of any such custom or rule of primogeniture. The learned trial Judge has, with respect, rightly prima facie found in favour of the plaintiff about its existence. There is enough material on record to come to that prima facie conclusion. Its existence can very well be culled out prima facie from the first-hand account about the dynasty of Gaekwad from no person other than the last Ruler, named, Maharaja Fatesinhrao Gaekwad, in his book bearing the title 'Sayajirao of Baroda' with its sub-title 'The Prince and the Man' published in 1989 by Popular Prakashan at Bombay. Besides, under the covenant at page 62 in Volume IV of the Paper Book, the succession, according to the prevalent custom, to the Gaddi has been guaranteed. It is not in dispute that Maharaja Fatesinhrao Gaekwad was the eldest son of Maharaja Pratapsinhrao Gaekwad. On de-recognition of Maharaja Pratapsinhrao Gaekwad by the order of 12th April, 1951 at page 171 in Volume IV of the Paper Book, Maharaja Fatesinhrao Gaekwad as the Crown Prince was recognised as the Ruler of Baroda. That was in consonance with the prevalent custom of primogeniture.
8. The aforesaid Supreme Court ruling in the case of Pratap Singh (supra) also deserves a reference in this connection. In paragraph 65 at page 749 of the reported ruling it has been held :
'Though impartibility and primogeniture, in relation to zamindari estates or other impartible estates are to be established by custom, in the case of a sovereign Ruler, they are presumed to exist.'
The aforesaid observation of the Supreme Court in its aforesaid ruling in the case of Pratap Singh (supra) should clinch the issue in favour of the plaintiff so far as the existence of the rule of primogeniture is concerned.
9. Under the covenant at page 62 in Volume IV of the Paper Book, Maharaja Pratapsinhrao Gaekwad was accepted or declared to be the absolute owner of the non-State private properties. By the order of 12th April, 1951 at page 171 in Volume IV of the Paper Book, Maharaja Fatesinhrao Gaekwad was recognised as the successor to the Ruler of Baroda. By the Certificate of 3rd February, 1954 and by that of 1st January, 1962 at pages 187 and 153 respectively in Volume IV of the Paper Book, the absolute ownership of the non-State private properties in the hands of Maharaja Fatesinhrao Gaekwad has unequivocally been recognised.At this stage a reference may also be made toone letter of 20th December, 1964 written onbehalf of the Government of India addressedto Maharaja Fatesinhrao Gaekwad. Its copyis at page 70 in Volume IV of the Paper Book.Its tenor leaves no room for doubt that thelast Ruler was recognised to be the absoluteowner of the non-State private properties hihis hands.
10. The question that has been posed is the nature of the non-State private properties in the hands of the last Ruler of Baroda. Dr. Singhvi for the plaintiff has contended that the nature thereof was of ancestral properties though impartible in character during the lifetime of the Ruler. Shri Sanghi has on the other hand contended that the last Ruler was the absolute owner thereof with no person having any claim whatsoever over such properties.
11. The Division Bench of this Court had an occasion to examine the nature of properties in the hands of such Ruler in its ruling in the case of D.S. Meramwala Bhayawala v. Ba Shri Anarba Jethsurbhai, reported in (1968) 9 Guj LR 609. It has been held therein :
'Khari Bagasara Estate was the sovereign Estate and the Chief of the Khari Bagasara Estate for the time being was the sovereign Ruler within his own territories subject to the paramountcy of the British Crown prior to 15th August, 1947 and completely independent after that date. As the Khari Bagasara Estate was a sovereign Estate, the ordinary incidents of ancestral coparcenary property could not be applied to that Estate.
Held, that it is obvious from the nature of such a sovereign Estate that there can be no interest by birth or adoption in such Estate and these rights which are the necessary consequence of community of interest cannot exist.
The Chief of a sovereign Estate would hold the Estate by virtue of his sovereign power and not by virtue of Municipal Law. To grant that the sons acquire an interest by birth or adoption in the Estate which is a consequence arising under the Municipal Law would be to make the Chief who is the sovereign Ruler of the Estate subject to the Municipal Law. The political principles asserted by the British Government as the paramount power, namely, (1) that no succession in an Estate is valid until recognised by the British Government, and (2) that an adopted son would not be recognised as a successor unless the adoption is made pursuant to an adoption sanad or at any rate with the prior approval of the British Government, also show that the British Government as the suzerain power did not regard the sons as having an interest in the Estate by birth or adoption. It is also significant that when partial sovereignty was ceded under Instruments of Accession and full sovereignty was ceded under merger agreements, the Instrument of Accession and merger agreements were signed only by the Chiefs of the Estates and not by their sons. It is, therefore, clear that whether regarded from the point of view of enforceability at law or regarded from the point of view of enforce-ability by the paramount power in exercise of its political control, the sons do not have an interest in the Estate by birth or adoption and none of the rights arising from community of interest inheres in the sons. Even where the rule of primogeniture has not been adopted and the Kathi rule of division applies, the sons do not acquire an interest in the Estate by birth or adoption.'
It thus becomes clear that the non-State private properties in the hands of the last Ruler could not be said to partake the character of any coparcenary property or the ancestral property enjoying coparcenery character. Such property in the hands of the Ruler was of his absolute ownership with no one having any right or interests whatsoever. The right of maintenance or residence enjoyed by members of the Royal Family was not in any way an enforceable right. It was in the nature of a bounty from the sovereign. If such Ruler would refuse to grant maintenance or residence to a member or members of the Royal Family, such a member or members of the Royal Family had no remedy available for enforcement of the so called right of maintenance or residence.
12. The character of absolute ownership of the non-State private properties in the hands of the Ruler would not come to an end on his death even if he dies as an ordinary citizen. De-recognition of such Ruler cannot have the effect of divestiture of all the absolute ownership of the non-State private properties. The 26th Amendment certainly de-recognised Maharaja Fatesinhrao Gaekwad as the Ruler of Baroda. That, however, would not divest him of his absolute ownership over the non-State private properties. He continued to remain the absolute owner thereof till he breathed his last.
13. The aforesaid ruling in the case ofPratap Singh (supra) is a clear-pointer in thatregard. In that case members of the RoyalFamily claimed their right over the propertiesbelonging to the State and in the hands of theRuler of that State. That right was notaccepted or recognised by the Supreme Courtin its aforesaid ruling. It may be mentioned atthis stage that members of the Royal Familyin that case claimed the properties involvedtherein to be the personal properties ofMaharaja Ripudaman, the predecessor of thethen Ruler Pratap Singh. The Supreme Courtfound the properties to be not the personalproperties of Maharaja Ripudaman. Theproperties were held to be those belonging tothe State of Nabha to be styled as 'Non-StatePrivate Properties' under the covenant likethe one at page 62 in Volume IV of the PaperBook..
14. It is difficult to accept the submission urged before me by Dr. Singhvi to the effect that, upon the death of the last Ruler, the original character of the properties, that is, the non-State private properties, would be restored. It cannot be gainsaid that the non-State private properties came down from the Ruler one after another right from the founder of the dynasty of Gaekwads of Baroda by observing the rule of primogeniture. It transpires from the aforesaid Book 'Sayajirao of Baroda' that the founder of the dynasty of Gaekwads had an understanding with his brother to share the fruits of conquests. The conquest of Baroda going to the share of the first Ruler was his own acquisition. It would not, therefore, have the character of any ancestral or coparcenery property in his hands. If its original character was not of ancestral or coparcenery property and was of self-acquired property, it would remain so even after the death of the last , Ruler. The non-State private properties in the hands of the last Ruler after his death would remain his absolute and sole properties and not ancestral or coparcenery properties.
15. The hotly debated question between the parties has been as to in what manner the succession to the non-State private properties will take place. The trial Court has found that the Hindu Succession Act, 1956 (the Act of 1956 for brevity) would not apply in the instant case. The learned trial Judge has then applied the rule of propinquity on the basis of equity, justice and good conscience by referring to principles in that regard contained in the works of Hindu Law by famous authors like the one by Mullah. Dr. Singhvi for the plaintiff has supported this prima facie conclusion reached by the learned trial Judge. Shri Sanghi has on the other hand submitted that the Act of 1956 govern as the last Ruler breathed his last as an ordinary citizen. In the alternative, Shri Sanghi for the defendants has submitted that in Baroda was prevalent an enactment by the name 'Hindu Nibandh' (the Special Enactment for brief) and, in. absence of applicability of the Act of 1956, rules of succession as contained in the Special Enactment would govern the situation.
16. Exclusion of applicability of the Act of (956 is based on Section 5(ii) thereof. It reads:
'5. This Act shall not apply to -
(i) xxx xxx xxx (ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act; (iii) xxx xxx xxx'
At the time of enactment of the aforesaid statutory provision, indisputably, the covenant at page 62 in Volume IV of the Paper Book was in existence. The effect of the covenant, however, came to an and on corning into force of the 26th Amendment. The last Ruler no longer remained a recognised Ruler after the 26th Amendment. In that view of the matter, he became an ordinary citizen so far as the law of the land is concerned. He admittedly breathed his last on 1st September 1988. At that time, the effect of the aforesaid covenant regarding preservation of succession on the basis of the rule, of primogeniture came to, an end. The hurdle against applicability of the Act of 1956 by virtue of Section 5(ii) no longer survived. The last Ruler had become subject to all Municipal Laws after the 26th Amendment. The Act of 1956 can be said to be a Municipal Law for the purpose of its applicability on all citizens in India. After the 26th Amendment, the last Ruler also became a citizen of India. He thereupon became amenable to the provisions of the Act of 1956. In that view of the matter, I am prima facie of the opinion that the Act of 1956 would apply in the instant case.
17. Dr. Singhvi for the plaintiff has contended that the Act of 1956 was riot applicable at the time of its bringing on the statute book by virtue of Section 5(ii) thereof and ah amendment thereunder would be necessary for its applicability upon happening of contingency visualised in the aforesaid statutory provision. With respect, lam unable to accept this submission for the simple reason that it was not applicable to the Ruler qua his properties because of the existence of the covenant at page 62 in Volume IV of the Paper Book. In fact, that covenant did not survive with derecognition of Maharaja Pratapsinhrao Gaekwad in 1951. However, in spirit, it survived in view of the certificates of 3rd Fabruary, 1954 and 1st March, 1964 referred to hereinabove. That hurdle in applicability of (he Act of 1956 was removed by the 26th Amendment. Besides, it is a settled principle of law that succession would open from the date of the death of the concerned person. The last Ruler admittedly breathed his last on 1st September, 1988. At that time, there was in existence h6 covenant and as such no hurdle against applicability of the Act of 1956 as envisaged by Section 5(ii) thereof.
18. Under the Act of 1956, the mother would be an heir in Clause-I in the Schedule appended thereto. It is not in dispute that defendant No. 1 is the mother of the deceased last Ruler and the plaintiff and defendant No. 2 are his brothers. Brothers of the deceased are included in heirs falling in Class-II in the Schedule thereof. It has been pro-vided in Section 9 thereof that ah heir or heirs in Class-I would take to the exclusion of an heir or heirs in Class-II. In that view of the matter, I am prima facie of the View that defendant No. 1 as the sole Class-I heir would inherit the non-State private properties in the hands of the deceased last Ruler upon his death.
19. Even assuming for the sake of argument that I am not right in my aforesaid prima facie conclusion, it is difficult to conceive absence of any applicable law at the relevant time. Even if it is assumed that the Act Of 1956 would not apply in the present case, the succession to the non-State private properties in the hands of the deceased last Ruler will be governed by the Special Enactment (the Hindu Nibandh). 1 am shown a xerox copy of the Book. The rules of succession are found at page 79 in Chapter 30 thereof. Section 197 thereof speaks of heirs of a male. The first heirs are the children together with further progeny and the widow. In the absence of children, the properties would devolve upon his widow and if he has more than one widow to the widows equally. The aforesaid provision has been made in Section 199 thereof. Under Section 200 thereof it has been provided that, in the absence of the children and the widow, the properties of the deceased would devolve upon his daughter and the son of his pre-deceased daughter. Under Section 201 thereof, the provision is made for devolution of the property on maternal grandson in the absence of a daughter or daughters or her or their progeny. Under Section 202 thereof, the father of the deceased is made the heir to succeed his properties in the absence of any of the heirs mentioned hereinabove. Under Section 203, the mother of the deceased is made his heir in the absence of the father. It is an admitted position on record that the deceased left behind him no widow or child ofhis. the only surviving heir to inherit hisproperty under the Special Enactment wouldbe his mother, that is, defendant No. 1. In thatview of the matter also, I am prima facie of theopinion that, in absence of applicability of theAct of 1956, defendant No. 1 would succeedto the non-State private properties of the deceased last Ruler under the Special Enactment.
20. I am unable to accept the submission urged before me by Dr. Singhvi to the effect that the Hindu Nibandh would not apply in the instant case for the simple reason that the Special Enactment was in the nature of a law framed by the Ruler and the Ruler has been regarded as the fountainhead of Municipal Laws and as such above such laws. This submission cannot be accepted for the simple reason that the last Ruler no longer remained the Ruler as such after the 26th Amendment. He became an ordinary citizen, and as such subject to Municipal Laws including the Special Enactment. As pointed out herein-above, the Special Enactment would be applicable only if it is assumed that the Act of 1956 is not applicable.
21. Besides, there is no provision in the Special Enactment excluding its applicability to the Ruler or members of the Royal Family. It transpires from the historical account of the dynasty of Gaekwads as contained in 'The Prince and the Man' that Maharaja Sayajirao Gaekwad ruled Baroda some time up to 1939. It transpires from the text of the Special Enactment that it was framed some time in 1937. It transpires from the historical account of Maharaja Sayajirao that he was a benevolent Ruler; he was a reformist. The Special Enactment Was made during his regime. As a benevolent Ruler and reformist, he would not like himself to be excluded from its applicability. That would militate against the concept that the Ruler is always above his Municipal Laws.
22. Taking either view of the matter, I am prima facie of the view that the non-State private properties in the hands of the last deceased Ruler (Maharaja Falesinhrao Gaekwad) would devolve upon his mother, that is, defendant No. I. In that view of the matter, I am prima facie of the opinion that the plaintiff has no share whatsoever therein. The plaintiff can thus be said to have failed to establish his prima facie case.
23. It is not necessary to examine the balance of convenience when I am prima facie of the view that the plaintiff has no share whatsoever in the lion-State private properties in the hands of the last Ruler.
24. Dr. Singhvi has brought to my notice certain rulings pertaining to powers of the appellate Court in such matters. The ruling of the Delhi High Court in the case of Ram Singh v. Attar Singh, reported in (1985) 27 Delhi LT 226, is distinguishable on its own facts. Besides, in a case like passing-off action, the entire matter is decided at the stage of deciding the fate of an application for interim relief. If the order under challenge in appeal is found to be patently erroneous, in law, it becomes the duty of the appellate Court to correct it.
25. The reliance placed by Dr. Singhvi on the ruling of the Kerala High Court in the case of George v. State, reported in AIR 1972 kerala 181, is also not of any help to him. At times, it becomes necessary to have a close examination of the matter to decide a prima facie case. The best illustration can be that of a passing-off action. In order to come to a prima facie conclusion in that regard, the case has to be examined closely. In the instant case also, in order to find out prima facie whether or not the plaintiff has any share in the subject-matter of this litigation, close examination of relevant provisions of law has become necessary.
26. The ruling of the Bombay High Court in the case of Arun Industries v. State of Maharashtra, reported in 1990 (3) Bombay C. R. 472, will also not assist Dr. Singhvi for the plaintiff in this case. It is distinguishable on its own facts. Besides, no complicated issues are found arising in this matter. The basic issue is whether or not the Act of 1956 applies in the instant case. If it docs not, the question is whether or not any other law applies. This cannot be said to be a complicated issue in the context of the material on record.
27. Shri Sanghi for the defendants has addressed me on the conduct of the plaintiff herein regarding defendant No. 1 as the sole heir of the deceased last Ruler, that is, her deceased son and has submitted that such conduct on the part of the plaintiff would estop him from contending otherwise. Dr. Singhvi has on the other hand submitted that such conduct on the part of the plaintiff would at the most amount to his misconception of law and as such admission on a question of law. In that view of the matter, runs the submission of Dr. Singhvi, the plaintiff need not be estopped from contending what he has pleaded as his case in his plaint. I do not consider it necessary to deal with that aspect of the matter as I have found that the plaintiff has no prime facie case for the purpose of claiming any interim relief. I have, therefore, not thought it fit to burden this judgment of mine by elaborately dealing with this aspect of the matter. It may be sufficient to note that the learned trial Judge has elaborately dealt with this aspect of the case and has prima facie found in favour of the plaintiff to the effect that he cannot and need not be estopped from contending what he has pleaded as his case in his pleadings. I agree with that prima facie conclusion reached by the trial Judge and also concur in his reasoning in support of his such prima facie conclusion.
28. Both the sides have referred to quite a few rulings at the Bar in support of their rival contentions. I have chosen not to burden this judgment of mine by elaborately dealing with them. I have tried to apply the principles enunciated therein in the instant case.
29. In view of my aforesaid discussion, I am of the opinion that the learned trial Judge was in error in finding some prima facie case in favour of the plaintiff. His impugned order below the application at Exhibit-5 in Special Civil Suit No. 725 of 1991 cannot be sustained in law.
30. That brings me to the fate of the Revisional Application. The learned trial Judge has rejected the application for appointment of a Commissioner for inventory. Appointment of a Commissioner for the purpose would certainly depend upon the establishment of a prima facie case in favour of the plaintiff. In view of my aforesaid discussion, the plaintiff is not found to have any prima facie case in his favour. In that view of the matter, appointment of a Commissioner for the purpose of inventory would be a futile and meaningless exercise. The order passed by the learned trial Judge rejecting such application deserves to be affirmed though on a different reasoning.
31. In the result, the Appeal from order succeeds. The order passed by the learned Joint Civil Judge (S.D.) at Baroda on 7th August 1992 below the application at Exhibit-5 in Special Civil Suit No. 725 of 1991 is quashed and set aside. There shall, however, be no order as to costs in the Appeal.
32. The Civil Revision Application also fails. It is hereby rejected. Rule is accordingly discharged with no order as to costs.
33. At the oral request of the learned Counsel for the plaintiff, the enforcement, implementation and operation of this judgment of mine is stayed for a period of 12 (twelve) weeks from today to enable the aggrieved plaintiff to challenge it by means of an appropriate proceeding before the Apex Court.