Raja Brajendra Kishore Singh Mandhata Vs. Amarendra Kishore Singh and ors. - Court Judgment

Excerpt:
property - declaration - plaintiff is sole owner of suit property filed suit for declaration of title - suit properties are private properties of ex maharaja and plaintiff came to know that property has been fraudulently recorded in name of mother of defendants without any document of transfer of title in her favour - therefore, properties described in schedule b devoid on plaintiff as successor - trial court dismissed suit - hence, present appeal - held, plaintiff neither examined himself to prove custom nor examined any member of royal family to prove sale deed - concerned witness has no knowledge about it - therefore, it was obligatory on part of plaintiff to either examine himself or some members of royal family to prove existence of this practice and in absence of any such evidence it is difficult to hold in favour of plaintiff that rule of primogeniture was being practiced in family of plaintiff - agreed with trial court that in gift deed donor had conveyed title of suit property covered under deed in favour of donee - execution of deed had not been denied by plaintiff - deed of gift is valid one and donor had conveyed title of properties covered under deed in favour of mother of defendants 1 to 4 and as is found from evidence on record mother of defendants 1 to 4 came into possession of entire properties covered under gift deed after death and remained in possession of same - therefore deed of gift was acted upon mother of defendants 1 to 4 remained in possession of same - appeal dismissed - labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - this suit was filed for a declaration that the plaintiff is the sole owner of the properties described in schedule 'a' and 'b' of the plaint and the defendants have no manner of right, title and interest therein, for rendition of accounts in respect of the usufructs from out of schedule a and b properties as well as for permanent injunction restraining the defendants, their agents or servants in exercising any right over the properties in any manner whatsoever and from withdrawing compensation payable in land acquisition case nos. singh mandhata expired on 24th of june 1983 and on receiving the news of such sad demise the plaintiff rushed to nayagarh and after his arrival according to the age old tradition and custom the plaintiff was made as raja of nayagarh by people of nayagarh. singh were not leading a happy married life and the memorandum of certain events written by raja k. (2) within 12 years prior to institution of the suit, the plaintiff was never in possession of a-schedule properties as well as b schedule properties. fraud and misrepresentation have been specifically dealt with and rejected by the learned single judge of the high court as well as by the division bench. we think it proper to refer some of the other recitals made in the gift deed which would clearly indicate the intention of the donor. the recitals in pages-8, 9, 10, 11 and 12 run as follows :now this indenture witnesseth that in consideration of the premises and out of love and affection which donor bears towards the donee and also for making provisions for the said donee after donor's death of a good residential house, befitting her position, he out of his free will and accord and while in sound state of mind and body, hereby grants and conveys unto the donee all that house which he had constructed with his private funds after his installation in the year 1933 on sanitary grounds for his ordinary residence and which is separate from the ancestral palace, together with all the rights, easements and appertenances whatsoever to the said premises and all the adjoining lands, tank, garden etc. however, since such a pleading was made we would like to again refer to some of the recitals of gift deed. j (page 6 and 7), the following are mentioned :and whereas the donor is desirous of conveying out of natural love and affection for his second wife the donee whose devoted services, care and attention saved the life of the donor during his prolonged illness and also for the attention which she constantly gives for the health and comforts of the donor and for other diverse reasons which endeared her most to the donor, the said property to the donee.l. mohapatra, j. 1. plaintiff is the appellant before this court. this suit was filed for a declaration that the plaintiff is the sole owner of the properties described in schedule 'a' and 'b' of the plaint and the defendants have no manner of right, title and interest therein, for rendition of accounts in respect of the usufructs from out of schedule a and b properties as well as for permanent injunction restraining the defendants, their agents or servants in exercising any right over the properties in any manner whatsoever and from withdrawing compensation payable in land acquisition case nos. 26/82 and 27/82 corresponding to execution case nos. 7/88 and 8/88.2. the dispute relates to title over the a and b schedule properties of ex-state of nayagarh which was a feudatory state under the sovereignty of british crown which became independent from british crown on all important matters as per the divergencies entered into between the british crown and ex-state of nayagarh. the case of the plaintiff is that though the successive rulers of the ex-state of nayagarh were exercising limited powers excepting those which were exercised by the british crown/government of india, as per such powers sanction or prior approval for marriage of the heir apparent to the ruler and also in respect of other male and female members were required to be taken. the purpose behind the aforesaid practice was to ensure that it is only the legitimate child who succeeds to the throne for the purpose of approval by the british crown and to avoid all kinds of disputes regarding succession. the further case of the plaintiff is that succession to the throne of state of nayagarh was at all relevant times governed by the rule of primogeniture. as per the aforesaid rule the eldest male member succeeds to the throne and used to be recognized as such by the british crown. the junior members of the royal family had merely right of maintenance. it is pleaded that all the properties of the state of nayagarh both movable and immovable get transferred by way of succession by virtue of rule of primogeniture. it is also pleaded in the plaint that last male holder had limited rights over the said properties and the ruler had no right to alienate or gift the palace. at all relevant times there was clear distinction between the private properties of the ruler and the properties of the state of nayagarh. according to the plaintiffs case the properties of the state of nayagarh are the properties of subjects of the state and therefore the last male holder or the ruler had no authority to alienate the palace in any raja brajendra k. singh mandhata v. amarendra kishore singh manner. raja krishna chandra mandhata who was the last male holder of the state of nayagarh had married the plaintiffs mother with the approval of the british crown and the marriage expenses were also approved by the then political agent hemaraj laxmi is the first wife of said k.c. singh and the queen of the state of nayagarh and the said hemaraj laxmi is the daughter of maharaja chandra shamsher jangabahadur rana who was at one point of time prime minister of nepal. plaintiff was born on 4th of september. 1933 out of the said wedlock and according to the custom was recognised by all concerned as heir apparent and next in the line of succession of the said ruler and therefore was named as 'jubaraj'. the said k.c. singh mandhata on attaining his majority on the 20th of july, 1933 became the ruling chief of ex-state of nayagarh with the approval of the british crown and the political agent of eastern state agencies. in the year 1934 he went to europe on health ground and returned in the year 1936. sometime in the year, 1938/39 the plaintiff's father took the plaintiff's mother to ranchi and both of them stayed in b.n.r. hotel. but the plaintiff's father alone came back to nayagarh to attend the affairs of the state and at the behest of some people did not bring back his wife as a result of which the plaintiff and his mother under the orders of political agent came to nayagarh from ranchi. after coming back from ranchi, plaintiff's mother was ill-treated both physically and mentally and it attained to such a proportion that under the advice of the political agent she had to settle down in calcutta with the help of her parents and at'that time the age of the plaintiff's mother was only 26/27 years. the mother of said k.c. singh belongs to the family of raja of hindol state and in that connection plaintiff's father was used to visit hindol off and on and during such visit he developed intimacy with one srimati shoubhagyamanjari devi who is the plaintiff's father's maternal uncle's daughter. the said shoubhagyamanjari was also coming to nayagarh and staying at nayagarh due to the relationship between the two royal families. out of such relationship, defendant no. 1 was born and due to serious threat to life and for safety of the plaintiff and his mother they had to stay at ranchi or calcutta on the advise of the political agent. after the british rule came to an end in august, 1 947, the father of the plaintiff along with other rulers of the eastern states entered into an agreement with the government of india in which it was agreed that the feudatory state of nayagarh will cease on from january, 1948 and in turn the government of india assumed payment of privy purse to the ruler and heir apparent according to the custom and traditions. rs. 8,000/- was sanctioned by the government of orissa annually raja brajendra k. singh mandhata v. amarendra kishore singh for education and maintenance of the plaintiff (jubraj) out of the said privy purse payable to the plaintiff's father. the said k.c. singh mandhata expired on 24th of june 1983 and on receiving the news of such sad demise the plaintiff rushed to nayagarh and after his arrival according to the age old tradition and custom the plaintiff was made as raja of nayagarh by people of nayagarh. when the plaintiff proceeded towards palace, he found it to be locked by the defendants and he was denied entry into the palace. in the year 1985, the plaintiff for the first time came to know that the defendants and their late mother by exercise of undue influence had got executed a document purporting to be a deed of gift in favour of the defendants mother from the plaintiff's father in respect of the schedule a property where the place stands. it is further pleaded in the plaint that the father of the plaintiff was suffering from tuberculosis in the year 1934 and had gone to switzerland for two years for treatment and returned to nayagarh only in the year 1936. taking advantage of the health condition of the father of the plaintiff and his weakness for the mother of the defendants she prevailed upon the plaintiff's father and got a deed executed in her favour. it is also pleaded, that the palace standing over a schedule properties of the plaint was constructed in the year 1937-38 out of the funds of nayagarh state and had been shown in the budget expenditure of nayagarh state. it is also stated that for construction of the palace part of the funds were also provided by the mother of the plaintiff as loan. the state palace was illegally gifted to shoubhagyamanjari but till filing of the suit the same was used as official residence of ruler of nayagarh and has been recognized as the palace of the ruler in the settlement records maintained by the government of india. the further case of the plaintiff is that the defendants have inducted as monthly tenants in some parts of the properties described in schedule a of the plaint and have been illegally misappropriating the rents and therefore they are liable to render accounts for the same. it is also the case of the plaintiff is that the old palace had become a ruin for which the palace in schedule a was constructed under the supervision of the mother of the plaintiff and during that period of the father of the plaintiff was staying in inspection bungalow, which is also a part of a schedule property. the further case of the plaintiff is that b schedule properties are private properties of late raja k.c. singh and only in the year 1985 the plaintiff came to know that the property has been fraudulently recorded in the name of the mother of the defendants without any document of transfer of title in her favour. therefore, the properties described in schedule b devoided on the plaintiff as the successor. the said properties are subject raja brajendra k. singh mandhata v, amarendra kishore singh matter of land acquisition misc. case nos. 26/82 and 27/82 and the plaintiff is entitled to get compensation therefor. so far as c schedule properties are concerned, the plaintiff's case is that it is the raja bagicha which was the exclusive private property of raja k.c. singh but the defendant's mother got her name recorded in the revenue records without any document and transfer of title and therefore, the plaintiff is entitled to succeed to the same.3. the defendants 1 to 4 filed a joint written statement. it is pleaded in the written statement that after 26th amendment of constitution of india in the year 1971 the privy purse has already been derecognized and therefore, the successors in interest have no basis to claim themselves as rajas. it is specifically pleaded that no part of two schedule properties were ever in possession of the plaintiff within 12 years prior to the date of filing of the suit and the plaintiff is not the son of late raja k.c. singh and there is every doubt of father-hood of the plaintiff. it is also pleaded in the written statement that rule of primogeniture had already been abrogated after the derecognition of the privy purse. succession to the suit property is governed by hindu law meant for mitakshara school. raja krushna chandra singh expired on 26.6.83. the succession is to be governed by the provisions of hindu succession act. according to defendants 1 to 4, k.c. singh had right to alienate or gift the palace which are his private and personal properties. it is also stated in the written statement that marriage of k.c. singh with hemaraj laxmi was a forced marriage as per the direction of the british crown and the plaintiff was recognized as heir apparent of raja k.c. singh due to political pressure of the british crown and such recognition of the plaintiff was not in accordance with the will of raja k.c. singh but due to coercion and undue influence. the mother of the plaintiff and raja k.c. singh were not leading a happy married life and the memorandum of certain events written by raja k.c. singh would indicate the character of the plaintiff's mother and according to the defendants she was leading an immoral life with her private secretary, surendranath neogy. in the year 1939 the mother of the plaintiff eloped with the aforesaid private secretary from nayagarh with huge amount of cash, jewellery including the cash and jewellery of the deities which were in her custody and she deserted raja k.c. singh and stayed with the aforesaid private secretary. it is also stated in the written statement that the plaintiff's mother had admitted in t. s. no. 83/103/67-68 in the court of sub-ordinate judge, nayagarh that shoubhagyamanjari is the wife of k.c. singh and that the mother of the defendants shoubhagyamanjari was the junior rani saheba of nayagarh and such marriage took place in the year 1941. in view of such admission, raja brajendra k. singh mandhata v. amarendra kishore singh the defendants are the lawful legal heirs of late raja k.c. singh and are entitled to succeed to the properties. the defendants further stated in the written statement that the plaintiff had no business to enter into the palace and in fact he had never gone to the palace as he had his properties at nayagarh and house at bhubaneswar. it is also stated that the plaintiff contested the assembly election for nayagarh constituency in the year 1971 and in this connection he was regularly coming to nayagarh and bhubaneswar and therefore his plea that he never knew about the gift deed executed in the year 1984 cannot be believed. according to the defendants the gift deed executed by k.c. singh in favour of shoubhagyamanjari is a valid one and no undue influence was exercised on the said k.c. singh for executing the said gift deed. it is also stated in the written statement that a ceiling proceeding was initiated under the provisions of o.l.r. act and the draft statement was published in the name of rani shoubhagyamanjari and the plaintiff knew about the same but did not file any objection. final orders were passed in the said o.l.r. on 24.4.82 and the a schedule properties were settled in favour of rani shoubhagyamanjari devi and she was allowed to retain the said properties to the full knowledge of the plaintiff. plaintiff being a party to the said proceeding neither objected nor filed an appeal against the final order and therefore, the suit is also hit by section 63 of the o.l.r. act. the defendants also claimed title by way of adverse possession on the ground that within 12 years prior to the filing of the suit they were in possession of the same to the knowledge of the plaintiff. it is also the case of the defendants that the gift deed executed in favour of shoubhagyamanjari devi was accepted by the revenue authority and the lands covered under the gift deed were recorded in her name and the plaintiff had not objected to the same. so far as b schedule properties are concerned it was contended by the defendants that they were not the private properties of raja k.c. singh and were stridhan properties of shoubhagyamanjari devi and recorded in her name in the revenue records. so far as c schedule properties are concerned though there is a mention about the same, no such property having been described in the plaint, the defendants reserved their right to give a reply. it is the further case of the defendants is that in respect of the land recorded in the name of mother, land revenue is being paid regularly by the defendants and at no point of time the plaintiff had ever objected to the same. the defendants also denied claim of submission of accounts in respect of the rooms given on rent and also denied the claim of the plaintiff over the compensation payable in respect of the land acquired as those properties belonged to the mother of the defendants'.4. the learned civil judge (sr. division), nayagarh on the pleading of the parties framed as many as 12 issues and dismissed the suit on the following findings.(1) ext. j the original gift deed being more than 30 years old is admissible in under section 90 of the evidence act. (2) within 12 years prior to institution of the suit, the plaintiff was never in possession of a-schedule properties as well as b schedule properties. (3) the contention raised by the plaintiff that the gift deed ext. j is invalid on the ground that raja k.c. singh retained the beneficial enjoyment of the gifted properties till his death has got no substance. (4) the mother of defendants 1 to 4 was in exclusive possession of the rajabati since the year 1952. (5) the plaintiff has no title or possession over b schedule properties of the plaint. (6) the gift deed ext. j had already been acted upon and shoubhagyamanjari had exercised her independent right -over the schedule a properties of the plaint. (7) the plaintiff neither has pleaded nor adduced any evidence that the properties gifted under ext. j were impartible estate and there is custom prevalent in the royal family of nayagarh that such properties are inalienable. the plaintiff has also not examined a single member of the royal family of nayagarh in order to establish that there is any family custom about inalienability of the estate. (8) the recitals of ext. j would indicate that the donor raja k.c. singh out of his free will and accord and while in sound state of mind had executed the said gift deed. there is no evidence of exercise of undue influence. (9) the custom of primogeniture as pleaded by the plaintiff has not been proved and established. (10) the plaintiff having come to know about the existence of the gift deed in the year 1 984, should have filed the suit within 3 years but the suit having been filed beyond the statutory period is barred by time. 5. so far as the law of primogeniture as pleaded by the plaintiff is concerned the plaintiff neither examined himself to prove such a custom nor examined any member of the royal family to prove the same. the only witness relevant for the purpose of the case is p.w. 4 who is the power of attorney holder of the plaintiff. this raja brajendra k. singh mandhata v. amarendra kishore singh witness in his evidence has stated that his relation with the royaf family started in the year 1954-55. in his examination-in-chief he has stated that after death of father of the plaintiff, the plaintiff was called from ranchi and on the 12th day, the plaintiff arrived. the raj purohit as per the custom of the family performed abhiseka ceremony and the plaintiff ascended the throne. though this evidence was laid by p.w. 4 there is no such pleading in the plaint and the said fact has also been admitted by the said witness the paragraph-27 of the cross-examination. he has specifically stated that he has not pleaded in the plaint that on the 12th day of the funeral ceremony of raja k.c. singh, abhiseka ceremony of the plaintiff was done. this witness has no knowledge about it. it appears from the evidence of p.w. 4 that such a custom was prevalent earlier. he having come to know the royal family in the year 1954-55 there was also no occasion for him to know about such custom. therefore, it was obligatory on the part of the plaintiff to either examine himself or some members of the royal family to prove the existence of this practice and in absence of any such evidence it is difficult to hold in favour of the plaintiff that the rule of primogeniture was being practised in the family of the plaintiff.6. the most important question relates to the execution of the gift deed by the father of the plaintiff in favour of the mother of the defendants 1 to 4. the certified copy of the said document was tendered by the plaintiff in evidence as ext. 4 and the original thereof was produced by the defendants marked as ext. j. shri pal, learned senior counsel appearing for the appellant strenuously contended that the deed of gift being subject to availability of right of residence and user by the donor cannot be said to be a valid gift deed. he referred to the recitals of ext. j and put much stress on the following recitals 'be it noted that this gift deed is made subject to right of residence and user of the donor.' shri pal contended that since the donor has not parted with his possession in respect of the properties gifted in favour off the donee and remained in possession of the same till his death there is no valid gift in the eye of law. in this connection, reference may be made to a decision of the apex court in the case of khushaichand swarup chand zabak jain, jalgaon v. sureshchandra kanhiyalal kochar and anr.reported in (1995) 1 scj 119.' the apex court in the aforesaid decision held as follows :'in the present case it is seen from the pleadings that the execution of the document has not been denied. on the other hand the recitals in the will executed by rajabai establish that she admitted the execution. however, she stated therein that it has been obtained by fraud and mis-representation. fraud and misrepresentation have been specifically dealt with and rejected by the learned single judge of the high court as well as by the division bench. once the execution of the document has been specifically admitted, the due execution under the registration act is presumed to have been done as the gift is admittedly a registered document. moreover in this case one of the attesting witnesses has been examined on behalf of the appellant who admitted in the cross-examination that he attested the document. son of another attesting witnesses and also the son of the scribe of the document have also been examined on behalf of the respondent. that evidence was considered and the high court found that the document has been duly proved. under these circumstances it must be concluded that due execution of the gift deed has been proved by the respondent it is no doubt clear from the evidence that rajabai retained the possession of the property. obviously the beneficial enjoyment of the property has been retained by her for her life time. under these circumstances rajabai having divested of her title to the property after due execution and registration of the gift deed she has been divested of her right and interest except her beneficial right to enjoyment of the property during her life time.'7. the trial court also relied upon the said decision and held that mere retention of the property by the donor for use does not make the gift deed invalid. we think it proper to refer some of the other recitals made in the gift deed which would clearly indicate the intention of the donor. the recitals in pages-8, 9, 10, 11 and 12 run as follows :'now this indenture witnesseth that in consideration of the premises and out of love and affection which donor bears towards the donee and also for making provisions for the said donee after donor's death of a good residential house, befitting her position, he out of his free will and accord and while in sound state of mind and body, hereby grants and conveys unto the donee all that house which he had constructed with his private funds after his installation in the year 1933 on sanitary grounds for his ordinary residence and which is separate from the ancestral palace, together with all the rights, easements and appertenances whatsoever to the said premises and all the adjoining lands, tank, garden etc., described more fully in the schedule to this deed, belonging to or acquired by the donor and all his rights and interests therein : and the said donee from this day will become the owner of the said property and the donor ceases to have any right title or interest therein from this day. the donor doth from this day deliver possession of the aforesaid property in favour of the donee.' in view of the above recitals which are clear and unambiguous with regard to intention of the donor we are inclined agree with the learned civil judge that in the gift deed the donor had conveyed the title of the property covered under the deed in favour of the donee. mere retention of possession by the donor in respect of the properties gifted will not make the deed invalid. so far as execution of the deed of gift is concerned though it was pleaded by the plaintiff that the same had been obtained by fraud and coercion rib evidence was laid on behalf of the plaintiff to prove the same. however, since such a pleading was made we would like to again refer to some of the recitals of gift deed. in ext. j (page 6 and 7), the following are mentioned :'and whereas the donor is desirous of conveying out of natural love and affection for his second wife the donee whose devoted services, care and attention saved the life of the donor during his prolonged illness and also for the attention which she constantly gives for the health and comforts of the donor and for other diverse reasons which endeared her most to the donor, the said property to the donee.'the above quoted portion of the gift deed indicates the reason for execution of the gift deed. at page-9 of the gift deed as quoted earlier. it is found that the donor with free will and accord, and while in sound state of mind and body had executed the deed. the execution of the deed had not been denied by the plaintiff. we are of the view that the deed of gift ext. j is a valid one and the donor raja k.c. singh had conveyed title of the properties covered under the deed in favour of the mother of the defendants 1 to 4 and as is found from the evidence on record the mother of defendants 1 to 4 came into possession of the entire properties covered under the gift deed after death of k.c. singh remained in possession of the same. therefore, we also agree with the learned civil judge that the deed of gift was acted upon and late shoubhagya, the mother of the defendants 1 to 4 remained in possession of the same. no other point was raised by shri pal challenging the judgment of the learned civil judge. we have also examined the evidence and the findings of the learned civil judge and we do not find any merit in the appeal and the same stands dismissed.r.k. patra, j. 8. i agree.