MANU/SC/0728/2004Equivalent Citation: (2004)11SCC425

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3861 and 3862 of 2001
Decided On: 09.09.2004
Appellants:Draupadi Devi and Ors.
Vs.
Respondent:Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
K.G. Balakrishnan and B.N. Srikrishna, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Joseph Vellapally, Sr. Adv., Anil Sharma, Rajiv Endlaw,
Vijay Gupta and Navin Prakash, Advs
For Respondents/Defendant: Avinash Ahlawat, Rani Chhabra, Brajesh Kumar, Sudha Pal,
Mohit Madan, Rashmi Chopra, Seema Nair, Shreekant N. Terdal, Hemant Sharma, D.S.
Mahra, Ajay Sharma, Sushma Suri, Anil Mittal, S.D. Jain and Kailash Chand, Advs.
Case Note:
Property - Title - Present appeal filed against dismissal of suit for declaration
of title to property in question - Held, title to suit property was claimed by
plaintiff on ground that he had purchased suit property by registered sale
deed for consideration from Maharaja Paramjit Singh but Maharaja had no
valid title over property which he could convey to plaintiff because that
property belongs to Government of India - Government of India had taken a
decision that the suit property had been refused to be recognised as private
property of late Maharaja - It took the stand that the suit property was State
property and devolved upon PEPSU, and thereafter, on its successor, State of
Punjab - Petitioners as legal representatives of plaintiff in the suit, have
absolutely no right to pray for the issuance of writ of mandamus and other
reliefs
JUDGMENT
B.N. Srikrishna, J.
Civil Appeal No. 3862 of 2001 :
1. This appeal by special leave impugns the judgment dated 8.12.2000 rendered by the
Division Bench of the Delhi High Court in an appeal RFA (OS) No. 19 of 1989. The
Division Bench overturned the decree granted by the learned Single Judge and
dismissed the suit of the original plaintiff. Legal representatives of the original plaintiff
are appellants before us while the three defendants in the suit (Union of India, State of
Punjab and Sukhjit Singh) are respectively the respondents before us. For the sake of
convenience, we shall refer to the parties as arrayed in the suit.
Facts :
2. The plaintiff instituted a suit in 1960 before the Civil Court at Delhi which ultimately
came to be transferred to the Original Side of the Delhi High Court and was disposed of

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 by a learned Single Judge. The suit was for declaration of title to the property being
land and building situated at 3, Mansingh Road, New Delhi.
3. By an indenture of lease dated 13.7.1921, Khan Bahadur Abdul Hamid, the then Chief
Minister of Kapurthala State, had been granted a perpetual lease of the plot of land
situate at 3, Mansingh Road, New Delhi. He raised a construction thereupon called
'Kapurthala House'. It is this land together with the structures thereupon which is the
subject matter of the suit and shall henceforth be referred to as 'the suit property'.
4 . Khan Bahadur Abdul Hamid sold the house to Jagatjit Singh, the then Maharaja of
Kapurthala, by a registered sale deed dated 19.1.1935. The records of the Land and
Development Office were mutated and Maharaja Jagatjit Singh was recorded as the
owner of the suit property.
5 . The title to the suit property was claimed by the plaintiff on the ground that the
plaintiff had purchased the suit property by a registered sale deed dated 10.1.1950 for a
consideration of Rs. 1.50 lacs from Maharaja Paramjit Singh, son of late Maharaja
Jagatjit Singh, erstwhile Ruler of Kapurthala State, who was the rightful owner thereof
and in whose name the property stood mutated in the official records of the
Government at the material time.
6 . Kapurthala was a Sovereign State (1928-1948) till its merger in 'Patiala and East
Punjab States Union' (hereinafter referred to as 'PEPSU') and subsequent merger of
PEPSU into the Dominion of India.
7 . It is the case of the plaintiff that Maharaja of Kapurthala, Jagatjit Singh, owned
properties extensively, some of which were owned by Kapurthala State, (also referred to
as 'Kapurthala Darbar') while some others were owned by him in his personal capacity
purchased out of the personal funds of the Maharaja.
8 . The plaintiff claimed that the suit property was one such property which had been
bought by Maharaja Jagatjit Singh out of his personal funds and, hence, it was the
personal property of the said Maharaja.
9. The plaintiff pleaded that on 1.3.1937 Lt. Col: C.P. Fisher, the then Prime Minister of
Kapurthala State, had prepared an aide memoirs in respect of the financial arrangements
pertaining to bifurcation of Oudh estate income and rest of the Kapurthala State income
and other matters. There is no dispute that in this aide memoirs Lt. Col. Fisher had
listed out the properties held by the Kapurthala State and the private properties of the
Maharaja separately. It is also common ground that the suit property was described as
State property in this aide memoirs prepared by Lt. Col. Fisher.
10. The plaintiff alleged that on 1.1.1940 the then Maharaja of Kapurthala State in his
capacity as a Sovereign Ruler of the State had issued a 'command' under the signature
of Tika Raja, (heir apparent), President State Council, commanding that in future all the
houses in Mussoorie and Kapurthala House in New Delhi would be considered as his
personal and private property and that the aide memoirs dated 1.3.1937 shall be
inoperative and ineffectual so far as the said properties were concerned.
11. Maharaja Jagatjit Singh died sometime in 1940 and all his properties including the
suit property passed on to his eldest son Paramjit Singh, who became the Maharaja of
Kapurthala and was recognised as such by the Government of India. The plaintiff
claimed that by a duly registered deed of conveyance dated 10.1.1950 Maharaja
Paramjit Singh had sold and conveyed the suit property jointly to the plaintiff and one

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 Dewan Jarmani Dass for a consideration of Rs. 1.50 lacs. It is also the plaintiff's case
that, subsequently, Dewan Jarmani Dass, who had been shown as vendee only for the
purpose of 'convenience', conveyed all his right, title and interest in the suit property to
the plaintiff by a duly registered indenture of transfer dated 21.2.1951. Thus, the
plaintiff claimed that he had full title to the suit property and sought the declaration and
reliefs as indicated.
12. If history had not overtaken him, the plaintiff perhaps would have had no problem
for successful culmination of his suit. Historical developments left their impact on the
aforesaid transaction the plaintiff had with the Maharaja of Kapurthala and for that
reason they need careful notice.
1 3 . The Independence Act was enacted in 1947 and all the independent Sovereign
Rulers of the States in India were successfully persuaded to sign instruments of
accession. As recorded in the 'White Paper on Indian States' published by the
Government of India in 1948 (of which judicial notice has been taken by this Court in
several cases), the strategy adopted by the Government of India immediately before
independence was to persuade individual States to sign instruments of accession for
accession of the States to the Dominion of India on three subjects, namely, defence
external affairs and communication.
14. The accession of the Indian States to the Dominion of India was the first phase of
the process of fitting them into the constitutional structure of India. The second phase
which rapidly followed, involved a process of two-fold integration, the consolidation of
States into sizeable administrative units, and their democratisation Para 86, Part V, p.38
of the White Paper on Indian States.
15. Where there were small States, they were persuaded to form Unions of States on
the basis of full transfer of power from the Rulers to the people. These Unions were to
be headed by a Rajpramukh as the constitutional head of the State who was to be
elected by the Council of Rulers Para 125 ibid.
16. Pursuant to this strategy, the Rulers of all individual States were persuaded to enter
into an instrument of accession dated 16.8.1947 with the Government of India. This
was then followed by covenants between different Rulers by which the Unions of States
was brought into existence, which were to be finally merged into the Dominion of India.
1 7 . As far as the present appeal is concerned, it is significant that the States of
Kapurthala, Jind, Nabha, Faridkot, Malerkotla and the States of Nalagarh and Kalsia
came together and entered into a covenant on 5.5.1948, The Division Bench has
reproduced the full text of the covenant executed on 5.5.1948 by the Seven Rulers
including the Maharaja of Kapurthala by which the erstwhile seven States merged into a
Union of States. The general effect of the said covenant was that the covenanting States
agreed to unite and integrate their territories in one State with a common executive,
legislature and judiciary by the name of 'Patiala and East Punjab States Union' (PEPSU)
which was referred to in the covenant as 'the Union'. Articles VI and XII of the said
covenant provided as under:
"ARTICLE VI
(1) The Ruler of each covenanting State shall, as soon as may be practicable,
and in any event not later than the 20th of August, 1948, make over the
administration of his State to the Raj Pramukh and thereupon -

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 (a) all rights, authority and jurisdiction belonging to the Ruler which
appertain, or are incidental to the Government of the Covenanting
States shall vest in the Union and shall hereafter be exercisable only as
provided by this covenant or by the Constitution to be framed
thereunder;
(b) all duties and obligations of the Ruler pertaining or incidental to the
Government of the Covenanting State shall devolve on the Union and
shall be discharged by it;
(c) all the assets and liabilities of the Covenanting State shall be the
assets and liabilities of the Union, and
(d) the military forces, if any, of the Covenanting State shall become
the military forces of the Union.
ARTICLE XII :
(1) The Ruler of each Covenanting State shall be 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.
(2) He shall furnish to the Raj Pramukh before the 20th day of
September, 1948, an inventory of all the immovable properties,
securities and cash balances held by him as such private property.
(3) If any dispute arises as to whether any item of property is the
private property of the Ruler or State property, it shall be referred to
such person as the Government of India may nominate in consultation
with the Raj Pramukh and the decision of that person shall be final and
binding on all parties concerned.
Provided that no such dispute shall be so referable after the 31st of
December, 1948."
1 8 . The organisation of the different organs constituting the administration of the
PEPSU was indicated in the covenant. There were also an elected Raj Pramukh and an
Up-Raj Pramukh who were to be appointed in the manner indicated in the covenant for
carrying out the administration of the PEPSU. There were several other details with
regard to the Union of PEPSU and for privy purses to be paid to each of the erstwhile
Rulers. To this covenant, the Government of India in the Ministry of States was a party
and the Government of India declared: "The Government of India hereby concur in the
above Covenant and guarantee all its provisions." The said covenant was signed on
behalf of the Government of India by V.P. Menon, then Secretary to the Government of
India in the Ministry of States.
19. The White Paper on Indian States further records that on 15.7.1948 the Patiala and
East Punjab States Union was inaugurated. Soon thereafter, the second step of
integration took place.
2 0 . Then followed correspondence between the Maharaja of Kapurthala and the
Government of India on the issue of fixing his privy purse as well as bifurcation and
recognition of the properties owned by him into State and private properties.

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 21. The Maharaja of Kapurthala kept pleading with the Government of India that he had
ruled the State of Kapurthala as a model Ruler; that in recognition of his signal services
to the British Government he had been granted the estates in Oudh income from which
he was gracious enough to divert to the State treasury of Kapurthala as Kapurthala
income was very low; that his personal income from Oudh estates and the State income
of Kapurthala were merged till 1937 and that it was only as the result of the efforts of
Col. Fisher that a bifurcation was made with the Oudh estates being earmarked as
personal income of the Maharaja. The Maharaja, therefore, pleaded with the
Government of India that some of the immovable properties purchased by him outside
Kapurthala State such as in Mussoorie and Delhi be permitted to be retained by him as
his private properties and that the Government of India should declare them to be so.
2 2 . The White Paper on Indian States indicates that the case of each Ruler was
considered individually and a decision was taken in each case depending on the facts
and circumstances pertaining thereto. Paragraph 157 in Part VII of the White Paper on
Indian States places on record the manner in which the Government of India solved this
complex problem of distinguishing between private properties and State properties
owned by the Rulers. The State properties were merged finally into the Dominion of
India while certain properties recognised as private properties were permitted to be
retained under the full ownership of the erstwhile Rulers. Para 157 of the White Paper
on Indian States reads as follows:
"157. In the past the Rulers made no distinction between private and State
property; they could freely use for personal purposes any property owned their
respective States. With the integration of States it became necessary to define
and demarcate clearly the private property of the Ruler. The settlement was a
difficult and delicate task calling for detailed and patient examination of each
case. As conditions and customs differed from State to State, there were to
precedents to guide and no clear principles to follow. Each case, therefore, had
to be decided on its merit. The Government of India were anxious that the new
order in States should be ushered in an atmosphere free from any controversies
or bitterness arising from any unhappy legacy of the past. A rigid and legalistic
approach would have detracted from the spirit of goodwill and accommodation
in which the political complexion of the States had been so radically altered. By
and large the inventories were settled by discussion between the
representatives of the Ministry of States, the Rulers concerned and the
representatives of the Governments of the Province or the Union as the case
may be. The procedure generally adopted was that after the inventories had
been received and scrutinised by the Provincial or the Union Government
concerned and after the accounts of the States taken over had been examined,
the inventories were discussed across the table and settled in a spirit of give
and take. In all discussions with the Rulers of the States forming Unions, the
Rajpramukhs were associated; the private properties of Rajpramukhs were
settled by the Government of India in informal consultation with the Premiers of
the Unions. This method made it possible to settle these properties on an
equitable basis within a remarkably short period and without recourse even in a
single case to arbitration. The settlements thus made are final as between the
States and the Rulers concerned."
23. Although, generally, user was the criterion for distinguishing State property from
private property, there was no such hard and fast rule, and depending on the facts and
circumstances of each case appropriate decision was taken by settlement with the Ruler
concerned. This process was obviously a long one stretching from 20.9.1948 (the last

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 date for furnishing to the Raj Pramukh the inventory of all the immovable properties,
securities and cash balances held by the Rulers as private property) till the actual date
of the decision. Article XII of the covenant of accession provided that if there was a
dispute as to whether any item of private property of the Ruler or State property, it
would be decided by a nominee of the Government of India appointed in consultation
with the Raj Pramukh and the decision shall be final and binding on all parties
concerned, provided that no such dispute was referable after 31.12.1948. According to
the recitals in the White Paper, in all cases the decision jointly taken by the Government
of India after discussion with the Ruler concerned and the Raj Pramukh was accepted by
the Ruler and no case was referred for arbitration as provided under Article XII of the
covenant.
2 4 . The correspondence between Maharaja of Kapurthala, Jagatjit Singh, his son
Paramjit Singh (Tika Raja) with the Government of India which has been extensively
quoted in the judgments of the learned Single Judge and the Division Bench bears out
what is stated in the White Paper. The tenor of the letters written by the Maharaja to the
Government of India does not indicate that the Maharaja was raising a dispute with
regard to the immovable properties outside Kapurthala State. On the contrary, the tenor
of the correspondence emanating from the Maharaja suggests that, having agreed to the
decision taken in the meeting with the Government of India's representatives he was
attempting to prevail upon the Government of India to declare some of the properties as
his personal properties for reasons which he advanced. It is interesting to notice that at
no point did the Maharaja of Kapurthala take up the stand that the properties owned
outside the Kapurthala State, particularly the suit property in Delhi, was beyond the
purview of the covenant and was his exclusive personal property.
2 5 . During the ongoing process of identification and bifurcation of the immovable
properties into State and personal properties, Maharaja Jagatjit Singh attempted to sell
some land. On coming to know of the move of the Maharaja, on 19.3.1949 a telegram
(Ex.D2W4/1) was sent by the Raj Pramukh to Maharaja Jagatjit Singh calling upon him
to refrain from doing so when the process of identification of properties was going on.
2 6 . While the discussions with the Government of India for identification and
classification of immovable properties held by the Maharaja of Kapurthala were still
going on, it appears that Dewan Jarmani Dass, then Chief Minister of Kapurthala State,
prevailed upon the Maharaja to quietly sell the property jointly to him and the original
plaintiff late R.M. Seksaria. Although, the Division Bench of the High Court has made
scathing remarks that Dewan Jarmani Dass had acted clandestinely and malafide in
order to grab the property even before the decision of the Government on the nature of
the property, it is unnecessary for us to pronounce on these facets of the matter for the
decision on legal issues does not turn upon these findings.
27. The Government of India was not aware of the sale and conveyance of the suit
property to Dewan Jarmani Dass and the plaintiff till or about 6.3.1950. It is only
thereafter that a discussion took place on 7.3.1950 between the representatives of the
Government of India headed by V.P. Menon, Secretary, Ministry of States and the
Maharaja of Kapurthala. The minutes which were recorded on 11.3.1950, with reference
to the suit property, state:
"The sale of Kapurthala House in Delhi should be revoked. The vendee should
be asked to refund the consideration money to His Highness. This decision was
communicated to Dewan Jarmani Dass by Secretary."

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 28. On 14.3.1950, Paramjit Singh, who had by then become the Maharaja of Kapurthala
State, wrote to V.P. Menon, Secretary, Ministry of States in which he referred to the
previous talk on the issue and said:
"Since my talk I find that present owner of the House i.e. M/s Jarmani Dass and
Seksaria Brothers are not prepared to voluntarily rescind or cancel the sale
deed of Kapurthala House in their favour."
He further stated:
"That my secretary, Shanti Sagar Mahendra, had been authorised to pay the
amount of Rs. 1.50 lacs to M/s Jarmani Dass and Seksaria Brothers and get
back the Kapurthala House at New Delhi if they so agree and have the sale deed
registered in his own name. In case this is not possible I request you to please
be good enough as to see that Kapurthala House, New Delhi, is declared my
personal and private property and I am not made to return the money."
(emphasis ours)
This does not at all sound like any assertion of title to the suit property, but more like
an imploration to the Government of India to declare the property as private property so
that Maharaja was not required to refund the money which he had taken from M/s
Dewan Jarmani Dass and Seksaria Brothers.
2 9 . The determination of the issue as to whether the suit property was the private
property of the Ruler of Kapurthala State recognised as such by the Government of
India or whether it was the State property of Kapurthala State, which merged into the
PEPSU and thereafter transferred by the Government of India to the State of Punjab
(Defendant No. 2), is crucial and decides the fate of the present litigation. It is crucial
because the plaintiff claims title from the Maharaja of Kapurthala; if the Maharaja's title
to the suit property was good, then the plaintiff has good title; conversely, if the
Maharaja had no title to the suit property as on the date of the conveyance dated
10.1.1950, then the plaintiff gets no title and, therefore, his suit must fail.Nemo dat
quoad non habet.
The Commands of 1940 and 1948:
30. The plaintiff attempted to prove his title by showing that the Maharaja had a good
title because the suit property was the private property of the Maharaja bought from his
personal funds and not the State property of Kapurthala purchased from State funds.
Despite the allocation made by the aide memoirs on 1.3.1937 prepared by Col. Fisher,
the plaintiff's case is that by reason of the subsequent command of the Maharaja dated
1.1.1940 the classification made by the aide memoirs was overridden and the property
remained as personal property of the Maharaja, Consequently, under the covenant it
was bound to be recognised as personal property which was guaranteed under the
covenant. Since the suit properly was the personal property of the Maharaja, the
Maharaja had good title which had passed to the plaintiff, is the line of argument of the
plaintiff. A number of legal arguments in support and voluminous documents have been
placed on record. The Division Bench of the High Court meticulously considered
everyone of the documents on record and totally disbelieved the case of the plaintiff as
to the existence of this alleged command of the Maharaja dated 1.1.1940 and another
alleged command dated 11.8.1948 declaring the suit property as his private property.
There is serious controversy as to whether the said documents were ever issued,
whether the said documents were proved on record, and if so, what the legal

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 consequences would be. We may add here that, apart from these two disputed
documents, the only other document in which there is any reference to the command of
1940 (without indicating the specific date) is a letter dated 11.4.1950 written by Dewan
Jarmani Dass to V.P. Menon which appears to have been written: "in order to clear my
position and to clear some misunderstanding" as to the sale of the said property to
Dewan Jarmani Dass. In this letter, it is stated that Maharaja of Kapurthala in 1940
passed an order in unequivocal terms that 'Kapurthala House' should be considered as
his personal property. Hence, Dewan Jarmani Dass said this should be treated as
personal property of the Maharaja and, consequently, his own rights should remain
protected.
3 1 . Having carefully perused the documents placed on record, and considered the
arguments of the learned counsel, we are inclined to agree with the findings of the
Division Bench about both these documents. As to the command of 1940, it has been
held proved by the learned Single Judge only on the basis of adverse inference and
secondary evidence. The Division Bench has correctly pointed out the circumstances
under which secondary evidence could have been let in did not exist at all The
inconsistency in the pleadings as to the particulars of the documents led to the resulting
confusion in the defendants admitting possession and denying possession in
succession. One thing, however, strikes us that in the entire correspondence, which the
Maharaja contemporaneously had up to the sale of the suit property, there was no
reference to this command at all. While it may not be possible to agree with the positive
conclusion drawn by the Division Bench that this command was fabricated and
clandestinely inserted by the plaintiff in the records of the Archives Department, we too
agree that these documents have not been proved in accordance with law.
3 2 . The Division Bench of the High Court rightly points out that the aide memoirs
prepared by Lt. Col. Fisher on 1.3.1937 indubitably declared that House in Delhi was a
"State House". This document was signed by Col. Fisher in his capacity as Prime
Minister as also by the Ruler of Kapurthala. There is no dispute about this document, or
that it had been signed by the Ruler of Kapurthala. In other words, as early as 1.3.1937,
the Maharaja of Kapurthala accepted that the House in Delhi (the suit property) was
State property. It would appear that in order to help the plaintiff in his suit, the third
defendant who is the grand son and successor of the Maharaja, and the plaintiff
introduced the theory that the Maharaja by his Commands dated 1.2.1940 and
11.8.1948 had nullified the effect of Lt. Col. Fisher's aide memoirs dated 1.3.1937.
33. The fact that there was no reference whatsoever to these documents in any of the
contemporaneous correspondence between the Ruler of Kapurthala and the Government
of India lends credence to the dubitable nature of these two documents. In fact, at no
point of time did the Maharaja put forward a claim with the Government of India that
the suit properly had ceased to be State property and become his private property by
reason of his aforesaid commands or otherwise. As we have already noticed, the tone
and tenor of the correspondence between the Maharaja and the Government of India
during the material period was abjectly supplicant and demonstrated only an anxiety on
his part to protect his privy purse and to bargain for certain concessions from the
Government. Never was there an assertion of rightful title to the suit property, his
efforts being directed towards wresting greater concessions. The Division Bench has
rightly analysed the evidence on record and came to the finding that till 1934, the
income from Oudh estates and Kapurthala State were treated as one consolidated
account. It was only on the advice of the Lt. Col. Fisher that the accounts were
separately maintained after 1936. Even in the Note dated 28.5.1948 (Vol. 9 page 17)
sent by the Maharaja and the Tika Raja, President of State Council to V.P. Menon,

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 Secretary, Ministry of States, it is pointed out that the income from Oudh estates were
merged in the income of Kapurthala State upto 1934, and it was bifurcated only on the
recommendation of Lt. Col. Fisher. The reason for this is explained thus:
"This step was taken only with the idea of earmarking the income of the Oudh
estates for my Civil List. As it has been my desire for some time to amalgamate
once again the income of my Oudh estates with the revenue of my State, I am
pleased to order that steps should be taken with regard to the amalgamation of
the Oudh estates with the Kapurthala State."
Thereafter, the Maharaja pleads his case that he should be granted Rs. 25 lacs to be
transferred to his household account out of the State Reserve Fund.
34. On 4.6.1948, the Ministry of States wrote to the Maharaja that transferring such a
large amount would invite serious public criticism and would not be acceptable to the
Government. Discussions followed thereafter. The Maharaja took the advice of
Chaudhary Niamat Ullah, a retired Judge of the Allahabad High Court, and addressed a
note dated 24.8.1948 to the Chief Minister of Kapurthala. Even in the memorandum the
plea made was with regard to injustice that was likely to result: "if my privy purse is
determined solely on the basis of the revenue of the Kapurthala State Property". The
aide memoirs prepared by the Maharaja in July, 1948 (Ex. D2/5) also reiterates this.
35. In view of this clear evidence, the Division Bench was justified in its finding that
the Maharaja of Kapurthala had clearly admitted that the income from Oudh estates
formed an integral part of State of Kapurthala and all along maintained in his
correspondence with the Government of India that the nature of the suit property could
not be decided merely from the source of income aspect.
Article 363 of the Constitution of India / Act of State:
36. For the appellants, it was contended that the source of income was not really the
index of the nature of the property, namely, whether it was State property or private
property of the Maharaja, but that the principle adopted at the time of accession was the
principle of user of the property.
37. The learned counsel for the appellants urged that the evidence on record shows that
the suit property in Delhi had been personally used by the Maharaja all along and at no
point of time was it used for State purposes. Hence, he contended that this property
was the private property of the Maharaja.
3 8 . Even assuming that the learned counsel for the appellants may be right in his
contention that applying the test of user the suit property was liable to be determined to
be the private property of the Maharaja, the question that arises is: Did the Government
of India recognise the suit property as the private property of the Maharaja? If they did
not, could a suit be maintained for a declaration that the suit property was the private
property of the Maharaja? Answering this question, the Division Bench holds that the
suit was not maintainable and barred by reason of Article 363 of the Constitution of
India.
39. The learned counsel for the State of Punjab and the Union of India contended that
the suit of the plaintiff was clearly barred and the court had no jurisdiction to entertain
the suit by reason of Article 363 of the Constitution of India. Article 363 reads thus:
"363. Bar to interference by courts in disputes arising out of certain

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 treaties, agreements, etc.--
(1) Notwithstanding anything in this Constitution but subject to the
provisions of Article 143, neither the Supreme Court nor any other
court shall have jurisdiction in any dispute arising out of any provision
of a treaty, agreement covenant engagement, sanad or other similar
instrument which was entered into or executed before the
commencement of this Constitution by any Ruler of an Indian State and
to which the Government of the Dominion of India or any of its
predecessor Governments was a party and which has or has been
continued in operation after such commencement or in any dispute in
respect of any right accruing under or any liability or obligation arising
out of any of the provisions of this Constitution relating to any such
treaty, agreement covenant engagement sanad or other similar
instrument.
(2) In this article-
(a) "Indian State" means any territory recognised before the
commencement of this Constitution by His Majesty or the
Government of the Dominion of India as being such a State;
and
(b) "Ruler" includes the Prince, Chief or other person
recognised before such commencement by His Majesty or the
Government of the Dominion of India as the Ruler of any
Indian State."
40. Counsel for the State of Punjab contended that the act of accession of Kapurthala
State to the Dominion of India, which was brought about by an instrument of accession
dated 16.8.1947 resulting in the Union of PEPSU coming into being on 15.7.1948 as
well as the execution of the covenant dated 5.5.1948 between the Maharaja and the
Government of India, were acts of the State. They were the resultants of exercising
political power which could not be questioned in the municipal courts. Learned counsel
placed heavy reliance on the judgment of the Constitution Bench of Seven learned
Judges of this Court in State of Gujarat v. Vora Fiddali Badruddin Mithibarwala
MANU/SC/0031/1964 : [1964]6SCR461 .
41. In Vora Fiddali (supra) a Constitution Bench of this Court had examined whether
the Government of India was bound to recognise and implement the rights created by a
"Tharao" of the Ruler of the erstwhile Sant State granting special rights with regard to
certain forests after the Maharaja of Sant State had by an instrument of merger
agreement dated 19.3.1948 acceded to the Dominion of India, the Government of India,
having refused to recognise any rights flowing under the grants made under the 'Tharao'
of the erstwhile Ruler. The Constitution Bench approved of the following dicta of Lord
Dunedin in Vaje Singhji Jorwar Singh v. Secretary of State for India (1924) LR
51 I.A. 357:
"When a territory is acquired by a sovereign state for the first time that is an
act of State. It matters not how the acquisition has been brought about. It may
be by conquest, it may be by cession following on treaty, it may be by
occupation of territory hitherto unoccupied by a recognised ruler. In all cases
the result is the same. Any inhabitant of the territory can make good in the
municipal courts established by the new sovereign only such rights as that

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 sovereign has through his officers, recognised. Such rights as he had under the
rule of predecessors avail him nothing. Nay more, even if in a treaty of cession
it is stipulated that certain inhabitants could enjoy certain rights, that does not
give a title to those inhabitants to enforce these stipulations in the municipal
courts. The right to enforce remains only with the high contracting parties."
It also expressly disagreed with the ratio of an earlier judgment of this Court in
Virendra Singh and Ors. v. The State of Uttar Pradesh MANU/SC/0025/1954 :
[1955]1SCR415 that such grants were merely voidable and continue to bind the parties
till they were expressly revoked by the new Sovereign. The majority judgment in Vora
Fiddali (supra) rendered by Hidayatullah, J. succinctly sets forth the concept of 'Act of
State' in the following words:
"To begin with, this Court has interpreted the integration of Indian States with
the Dominion of India as an Act of State and has applied the law relating to an
Act of State as laid down by the Privy Council in a long series of cases
beginning with Secretary of State in Council for India v. Kamachee Boye
Saheba (1859) 13 M.P.C. 22 and ending with Secretary of State v. Sardar
Rustam Khan and Ors. (1941) 68 I.A. 109. The cases on this point need not
be cited. Reference may be made to Dalmia Dadri Cement Co. Ltd. v.
Commissioner of Income-tax MANU/SC/0084/1958 :[1958]34ITR514(SC) ,
The State of Saurashtra v. Menon Haji Ismali Haji, MANU/SC/0178/1959
: [1960]1SCR537 Jaganath Agarwala v. State of Orissa
MANU/SC/0108/1961 : [1962]1SCR205 , andState of Saurashtra v.
Jamadar Mohamed Abdulla and Ors. MANU/SC/0091/1961 :
[1962]3SCR970 . In these cases of this Court, it has been laid down that the
essence of an Act of State is an arbitrary exercise of sovereign power on
principles which are paramount to the Municipal Law, against an alien and the
exercise of the power is neither intended nor purports to be legally founded. A
defence that the injury is by an Act of State does not seek justification for the
Act by reference to any law, but questions the jurisdiction of the court to decide
upon the legality or justice of the action. The Act of State comes to an end only
when the new sovereign recognises either expressly or impliedly the rights of
the aliens. It does not come to an end by any action of subordinate officers who
have no authority to bind the new sovereign. Till recognition, either express or
implied, is granted by the new sovereign, the Act of State continues."
The decision also holds that merely because the issue of recognition of the new rights
was pending with the Government, it cannot be postulated that the act of State had
come to an end. The act of State could only come to an end if the Government
recognises the rights which were granted by the erstwhile Ruler, The Government may
take time to consider; and delay does not mitigate against the act of State. [See,
Jaganath Agarwala v. State of Orissa (supra)].
42. Vora Fiddali (supra) also holds that although the distinction between legislative,
executive and judicial acts of an absolute Ruler (such as the Indian Rulers were) was
apt to disappear when the source of authority was the sovereign, this would be true
only in so far as the subjects of the Ruler were concerned, since they were bound to
obey not only laws but any orders of the Ruler, whether executive or judicial. "For them
there did not exist any difference because each emanation of the will of the sovereign
required equal obedience from them. But it does not mean that the Ruler acted
legislatively all the time and never judicially or executively. If this was the meaning of
the observations of this Court then in Phalke's case MANU/SC/0003/1960 :

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 [1961]1SCR957 , it would not have been necessary to insist that in determining whether
there was a law which bound the succeeding sovereign, the character, content and
purpose of the declared will must be independently considered." Applying the test, the
majority came to the conclusion that the "Tharao" was not "law in force" which
continued to operate by reason of Article 372 of the Constitution of India. It was also
held that the municipal courts in India could not pronounce upon the dispute arising
under the agreement or touching the agreement as the subject was outside the
jurisdiction by reason of Article 363 of the Constitution of India.
43. The rule that cession of territory by one State to another is an act of State and the
subjects of the former State may enforce only those rights which the new sovereign
recognises has been accepted by this Court. [See in this connection: Dalmia Dadri
Cement Co. Ltd. v. The Commissioner of Income-tax (supra); Jagannath
Agarwala v. State of Orissa (supra); Promod Chandra Deb and Ors. v. The State
of Orissa and Ors. MANU/SC/0092/1961 : AIR1962SC1288 andThe State of
Saurashtra v. Jamadar Mohamad Abdulla and Ors. (supra).]
44. Applying the law as laid down in Vora Fiddali (supra) it appears to us that the
contention of the State of Punjab and the Union of India must be upheld. The Maharaja
of Kapurthala was an independent sovereign Ruler. To merge or not to merge with the
Dominion of India was a political decision taken by him and the instrument of accession
dated 16.8.1947 was, without doubt, an act of State. So was the covenant dated
5.5.1948. By the covenant all rights, authority and jurisdiction of the erstwhile Rulers
were vested in the Patiala and East Punjab States Union and all assets and liabilities of
the covenanting States became the assets and liabilities of the Union, PEPSU. It is only
Article XII which ensured certain rights to the Ruler with regard to 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 the State to the Raj Pramukh.
Consequently, he was also required to furnish to the Raj Pramukh, before the deadline,
an inventory of all the immovable properties, securities and cash balances held by him
as such private property. This was obviously done so that the Government of India
could ascertain the correctness of the claim. No doubt, Clause (3) of Article XII provides
that a dispute arising as to whether any item of property was the private property of the
Ruler or State property was referable to a nominee of the Government of India and such
nominee's decision would be final and binding on all the parties concerned, provided
that such dispute was to be referred by the deadline of 31.12.1948. Interpreting this
clause, the learned Single Judge took the view that under the treaty the Government of
India could not unilaterally refuse to recognise any property as private property of the
Ruler, and, if it did, it was obliged to refer it to the person contemplated by Clause (3).
Failure to do so would imply recognition of the claim as to private property. In our
view, this reasoning of the learned Single Judge was erroneous on two counts. In the
first place, this interpretation ignores the true nature of the covenant. The covenant is a
political document resulting from an act of State. Once the Government of India decides
to take over all the properties of the Ruler, except the properties which it recognises as
private properties, there is no question of implied recognition of any property as private
property. On the other hand, this clause of the covenant merely means that, if the Ruler
of the covenanting State, claimed property to be his private property and the
Government of India did not agree, it was open to the Ruler to have this issue decided
in the manner contemplated by Clause (3). Clause (3) of Article XII does not mean that
the Government was obliged to refer to the dispute upon its failure to recognise it as
private property. Secondly, the dispute as to whether a particular property was or was
not recognised as private property of the Ruler was itself a dispute arising out of the
terms of the covenant and, therefore, not adjudicable by municipal courts as being

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 beyond the jurisdiction of the municipal courts by reason of Article 363 of the
Constitution of India.
45. Although, Vora Fiddali (supra) was a case which dealt with the recognition of the
rights of the subjects of an erstwhile Ruler after accession of the Ruler to the Dominion
of India, the principles laid down in Vora Fiddali would apply with greater vigour to
the rights claimed by the Ruler himself.
46. We are of the view that after the Government of India took over all the properties
of the Ruler of the Kapurthala State, by an act of State, assuring him by the covenant
only that he would be entitled to the full ownership, use and enjoyment of all private
properties. A procedure was prescribed for recognition of such private properties. The
evidence on record does not suggest that at any point of time the Ruler of Kapurthala
had disputed the power of the Government of India to decide the issue as to whether
the suit property was the property of the State of Kapurthala or private property of the
Ruler. On the contrary, the correspondence placed on record suggests that at all points
of time the Ruler of Kapurthala accepted the position that the Government of India had
the right to decide the nature of the property and was merely pleading that the suit
property be declared as his private property. Finally, in any event, we are of the view
that the issue as to whether the Government of India was obliged to recognise the
private property of the Ruler of Kapurthala, and whether, under the terms of the
covenant (Article XII of the covenant), the Ruler of Kapurthala was entitled to have it
thus recognised, are disputes which are clearly barred by Article 363 and the court had
no jurisdiction to decide the said issues.
Lex Situs:
4 7 . The appellants contend that the decision that the suit property could not be
recognised as private property was taken only in 1951 i.e. after the coming into force of
the Constitution of India. By that time, the Maharaja had acceded to the Union (PEPSU)
which was succeeded by the State of Punjab as a State under the Constitution.
Appellants contend that by the decision taken in 1951 the right to property which was
held by a citizen of the country could not have been taken away by a mere executive act
without the backing of a valid legislative enactment. According to the appellants, the lex
situs would govern the issue. In other words, the law as applicable in Delhi would have
governed the issue whether the Ruler of Kapurthala had a right to the property under
the laws as applicable in Delhi. The Ruler of Kapurthala had purchased the property by
a registered sale deed from Khan Bahadur Abdul Hamid; thus, he was the true owner of
the property and his ownership rights could not have been extinguished except by a law
validly made under the Indian Constitution. Allied to this argument is also a subsidiary
argument that there cannot be an act of State as against a citizen or a friendly alien.
Reliance was sought to be placed on the judgment of the House of Lords in Johnstone
v. Pedlar (1921) A.E.R. 176 and of this Court in The State of Saurashtra v. Memom
Haji Ismail Haji MANU/SC/0178/1959 : [1960]1SCR537 andH.H. Maharajadhiraja
Madhav Rao Scindia etc. v. Union of India and Anr. MANU/SC/0050/1970 :
[1971]3SCR9 .
48. Some recapitulation of contemporaneous facts is in order to appreciate the merits
of this argument.
49. After the instrument of accession was executed by the Maharaja on 16.8.1947, he
executed the covenant on 5.5.1948, and he forwarded the list of his private property by
way of an aide memoirs and handed it over on 15.7.1948 to the Raj Pramukh. Logically,

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 this would have been the first occasion for the Maharaja of Kapurthala to lay claim to
the suit property as his private property. Interestingly, there is no reference made to the
suit property or any other property as private property in this aide memoirs. The only
anxiety appears to be to get the privy purse fixed which was a big amount to be paid
regularly by the Government of India.
50. On 16.7.1948 (Ex. D.2/6) the Maharaja addressed a letter to the Raj Pramukh in
which he refers to the copy of the aide memoirs already handed over. Even in this letter,
nothing is said about the nature of the property in Delhi. The emphasise is purely on
ensuring that a large amount of privy purse fixed.
5 1 . On 25.8.1948 (Ex.D.2/7), one more letter was addressed by the Maharaja of
Kapurthala to the Raj Pramukh. In this letter, there was a detailed list of "private
properties situated in and outside the Kapurthala State in accordance with Article XII(2)
of the covenant. There is also reference to the aide memoirs personally handed over at
Patiala on 15.7.1948. The list refers to several palaces and buildings within Kapurthala
State, and in Mussoorie. For the first time, there is reference to the suit property as
'Kapurthala House' situated at 3, Mansingh Road. The issue of recognition of private
property was still very much under process for the Raj Pramukh wrote back to the
Maharaja of Kapurthala on 3.9.1948 (Ex. D.2./8) requesting him to furnish a list of
jewellery, silver ware etc. as per inventory in the stock registers of the Toshekhana at
Kapurthala as it would "help greatly in the settlement of claims of your private
property."
5 2 . On 22.9.1948 (Ex.D.2/9) there is a letter written by the Maharaja to the Raj
Pramukh with regard to certain animals and articles which he wanted to be recognised
as private property.
5 3 . On 12.1.1949 (LC/D Vol.6 page 1539) there is a reference made to "other
properties outside the Kapurthala State belonging to me personally" with a promise that
their list would be forwarded for consideration.
54. At that time, a number of Rulers had acceded to the Government of India and the
White Paper says that their cases were to be considered one by one individually.
Consequently, there was bound to be some time lag in taking a decision on the claim to
private properties made by the Rulers.
5 5 . While the claim was being processed, on 1.2.1949 (Ex. D2W1/3), the Finance
Secretary, Govt. of PEPSU wrote to N.M. Buch, Joint Secretary, Government of India to
point out that the order passed in 1937 by the Maharaja clearly bifurcated the division
of the properties into the house hold and State and that this was contrary to the claim
he was putting forward. He also invited attention to the fact that while Mussoorie
property was being divided half and half, the Delhi house necessarily was to be the
official property of the State and that, though the question had been settled, the
Maharaja had raised the issue again.
56. By letter dated 11.4.1949, (Ex.D.2./10) the Raj Pramukh informed the Maharaja:
"The question about Kapurthala House in New Delhi will be settled separately
on the same basis as is applied in the case of houses owned by other
Covenanting States, and I shall be writing to Your Highness further about it."
57. During this process the Maharaja of Kapurthala sold the suit property jointly to the
plaintiff and Dewan Jarmani Dass on 10.1.1950.

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 5 8 . There was a meeting convened on 25.1.1950 between the Raj Pramukh, the
Maharaja of Kapurthala, M.R. Bhide and the Private Secretary to the Raj Pramukh. Even
the minutes (Ex. D.2/11) recorded of this meeting do not disclose that the Maharaja had
informed M.R. Bhide about the sale of the property on that day.
59. When the Government of India came to know of the sale of the suit property, a
meeting was arranged on 7.2.1950 in Kapurthala between V.P. Menon, Secretary,
Ministry of States, M.R. Bhide, Regional Commissioner, PEPSU, Sardar Hari Sharma,
Deputy Secretary of States and the Maharaja of Kapurthala. The minutes of this
meeting, insofar as they pertain to the suit property, make interesting reading. They
read as under (Para 3):
"The sale of Kapurthala House in Delhi should be revoked. The vendee should
be asked to refund the consideration money to His Highness. This decision was
communicated to Dewan Jarmanidass by Secretary."
60. On 14.3.1950 (Ex.PX-13), the Maharaja wrote to V.P. Menon, Secretary, Ministry of
States requesting him to declare the suit property as his personal property.
61. On 26.2.1951 a meeting was held between the representatives of the Government
of India and the Maharaja. The minutes were recorded on 1.3.1951 (Ex. D.2W2/2). The
material portion of the minutes reads as under:
"Delhi House : His Highness was informed that in the basis of the information
received on him, the house could not be treated as private property. The
intention of the Government of India, therefore, was to treat the house as State
Property."
62. Finally, by letter dated 4/5.5.1951 (Ex.P.6/3), the Government of India informed
the Maharaja:
"It has now been decided that Kapurthala House, No. 3, Man Singh Road, New
Delhi, will be State property and not the private property of Your Highness. We
have informed the PEPSU Government of this decision."
63. In the light of these developments, it is clear that the act of State continued from
the date when the instrument of accession was signed i.e. 16.8.1947 to the date on
which the final decision of the Government of India was conveyed to the Maharaja. The
fact that time was taken in conveying the decision, or the fact that the Constitution of
India had come into force in the interregnum, do not change the character of the act of
the Government of India in refusing to recognise the suit property as the private
property of the Maharaja of Kapurthala. Agarwala (supra) holds that an act of State
need not be a prompt decision, but could stretch over a period of time. Vora Fiddali
(supra) states that the act of State would continue till the new sovereign recognises the
rights. In this case, however, the act of State terminated with the final decision of non-
recognition being conveyed. What the Government of India did in the year 1951 was not
referable to anything flowing from the Constitution, but, action albeit delayed, referable
to the instrument of accession and the covenant signed by the Maharaja. Any dispute
with regard to what the covenant guarantees, or whether the act of the Government of
India was justified under the covenant is, beyond the pale of jurisdiction of the court by
reason of Article 363 of the Constitution of India. The Division Bench of the High Court
was, therefore, justified in making a finding that the suit was barred by Article 363 and
was liable to fail.

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 64. Now, we may dispose of the subsidiary argument of Mr. Vellapally, learned senior
advocate, based on the Doctrine of Lex Situs. Vora Fiddali (supra) is an authority for
the proposition that the act of State would continue till there is recognition (or non-
recognition). In our view, all the rights available to the erstwhile Ruler and his subjects
are of no avail till there is recognition of such rights. The argument of lex situs could
have perhaps prevailed, if the Government of India at any point of time had recognised
the suit property as the private property of Maharaja of Kapurthala, and, after the
coming into force of the Constitution, attempted to take it away otherwise then by a
Constitutionally valid legislative enactment. On the facts, however, we find that no such
recognition was granted. Merely because the decision not to recognise was conveyed to
the plaintiff in the year 1951, the act of the Union of India did not cease to be an act of
State, nor does it fall outside the protective umbrella of Article 363 of the Constitution
of India. The contention of the learned counsel of the appellants that the plaintiff
claimed title to the property through the registered sale deed in his favour under the
law applicable in Delhi would be of no avail. As we have said earlier, if the Maharaja
had no title to the property, the plaintiff can hardly get anything more.
65. Another interesting sideline in the argument was introduced by the learned counsel
for the appellants that an act of State could never occur with reference to property that
was not in the ceded territory. It is not necessary for us to examine this argument as
the facts on hand are clearly against the argument. There is not doubt whatsoever, that
the Maharaja of Kapurthala held properties outside the territory of Kapurthala, say, for
example, in Mussoorie and Delhi. Even with regard to these properties, the Government
took a decision as to their character and whether they could be recognised as private
property of the Ruler. As to Delhi property, the Government of India decided that it
would be treated as State property and in the case of Mussoorie property, half of it to
be treated as State property and half of it to be treated as private property of the
Maharaja of Kapurthala. Further, we find that Article VI of the Covenant dated 5. 5.1948
vests "all" the assets and liabilities of the covenanting States in the Union of PEPSU and
makes exception only with regard to private properties as contemplated by Article XII.
There is no reference whatsoever therein to the situs of the property. The covenant
therefore, drew a distinction only between State property and private property of the
Ruler irrespective of where the property was situated. In our view, any further dispute
with regard to the interpretation of this clause of the covenant would again be beyond
the jurisdiction of the court by reason of Article 363 of the Constitution of India.
66. In the result, we uphold the findings of the Division Bench of the High Court that
the suit was not maintainable.
Article 77 of the Constitution of India:
6 7 . The contention based on Article 77 of the Constitution of India, urged by the
learned counsel for the appellants, also does not have merit. The contention is that all
orders and other instruments made and executed in the name of the President are
required to be authenticated in the manner as specified in Article 77. That the order, if
any, of the Government of India, not to recognise the suit property as the private
property of the Maharaja, was not executed in this manner and, therefore, is invalid.
The judgment of this Court in State of Rajasthan and Anr. v. Sripal Jain
MANU/SC/0262/1963 : 1963CriL J347 andL.G. Chaudhari v. The Secretary, L.S.G.
Dept., Govt. of Bihar and Ors. MANU/SC/0465/1979 : AIR1980SC383 were pressed
into service in support.
68. In our view, the argument based on Article 77 is irrelevant. Even assuming that the

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 appellants are right in the contention that the decision not to recognise the suit property
as private property of the Maharaja of Kapurthala, was required to be and not taken in
the manner contemplated by Article 77, it would only mean that there was no decision.
In our judgment, the plaintiff cannot succeed by merely showing that the Government
of India had failed to arrive at a decision on the issue. He must further show that the
Government of India had recognised the suit property as private property of the Ruler of
Kapurthala as that could be the only foundation for his title. There is also another
reason why we are not impressed with this argument. If the act of recognition or non-
recognition of the suit property as private property is relatable to the instrument of
accession made in 1947 and the covenant executed in 1948, the decision would also
relate back to the date of the covenant, and on that date Article 77 of the Constitution
was not in existence. Hence, it would be incorrect to judge the validity of that decision
relatable to the covenant executed in 1948 by the Constitution of India, which came into
existence much later.
Article 372 of the Constitution of India :
6 9 . The appellants, relying on the judgment in Vishnu Pratap Singh v. State of
Madhya Pradesh and Ors. MANU/SC/0092/1990, contend that the Ruler of Kapurthala
was an absolute sovereign, who could by his command change the character of the
property from State property to private property, which he did by his commands of
1940 and 1948; that these commands had the force of law and continued to operate as
'existing law' by reason of Article 372 of the Constitution of India; and they could only
be revoked by a law validly made by Parliament and not by an executive act.
70. The argument, undoubtedly, allures at first blush; but it fails when scrutinized. In
the first place, Vishnu Pratap Singh (supra) relied on and is based on the ratio of
Virendra Singh (supra). Vora Fiddali, a decision of Seven learned Judges, expressly
overruled the principle laid down in Virendra Singh (supra). Consequently, Vishnu
Pratap Singh (supra) cannot be said to be good law. In any event, the test laid down
i n Vora Fiddali, if applied to the commands in question (even assuming they have
been proved), is answered negatively. The learned Single Judge was correct in saying
that 1948 command did not amount to law. Even assuming the two commands of 1940
and 1948 were proved, they would not amount to law, by applying the test laid down in
Vora Fiddali (supra).
71. Learned counsel for the appellants placed strong reliance on the judgment in State
of Punjab and Ors. v. Brigadier Sukhjit Singh MANU/SC/0540/1993 :
[1993]3SCR944 which, incidentally, is the case of the third defendant himself pertaining
to Kapurthala State. Strong reliance is placed on the observations in Paragraph 11 of
the judgment:
"Now it is beyond doubt that the ruler of an Indian State was in the position of
a sovereign and his command was the law. His Farman had the strength and
potency of a law made by an elected legislature and his acts, administrative or
executive, were sovereign in character."
This judgment would be binding inter parties as far as what it decides. If it is cited as a
precedent on a proposition of law, we are afraid that this judgment runs counter to
what had been laid down by the majority judgment in Vora Fiddali (supra) and, what
is more, strangely, does not refer to Vora Fiddali. In the teeth of Vora Fiddali, we are
unable to accept the cited judgment as reflecting the correct position of law.
Limitation:

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 72. That brings us to the issue of limitation. The learned Single Judge held that the
plea of limitation not having been taken in the pleadings defendants Nos. 1 and 2
should not be allowed to raise the said plea.
73. We may notice here that under the Code of Civil Procedure, Order VII Rule 1(e)
requires a plaint to state "the facts constituting the cause of action and when it arose".
The plaintiff was bound to plead in the plaint when the cause of action arose. If he did
not, then irrespective of what the defendants may plead in the written statement, the
court would be bound by the mandate of Section 3 of the Limitation Act, 1908 to
dismiss the suit, if it found that on the plaintiff's own pleading his suit is barred by
limitation. In the instant case, the plaint does not plead clearly as to when the cause of
action arose. In the absence of such pleadings, the defendants pleaded nothing on the
issue. However, when the facts were ascertained by evidence, it was clear that the
decision of the Government of India not to recognise the suit property as private
property of the Maharaja was taken some time in the year 1951, whether in March or
May. Dewan Jarmanidass, the plaintiff and the Maharaja were very much aware of this
decision. Yet; the suit was filed only on 11.5.1960.
74. The Division Bench was, therefore, right in applying Article 120 of the Limitation
Act, 1908 under which the period of limitation for a suit for which no specific period is
provided in the Schedule was six years from the date when the right to sue accrues. The
suit was, therefore, clearly barred by limitation and by virtue of Section 3 of the
Limitation Act 1908, the court was mandated to dismiss it.
75. As rightly pointed out by the Division Bench, the learned Single Judge ought to
have permitted the plea to be raised on the basis of the facts which came to light. The
Division Bench has correctly appreciated the plea of limitation, in the facts and
circumstances of the case, and rightly came to the conclusion that the suit of the
plaintiff was liable to be dismissed on the ground of limitation. We agree with the
conclusion of the Division Bench on this issue.
Alternative Relief:
76. The last issue which needs consideration relates to the alternative relief prayed for
by the plaintiff in Paragraph 16 of the plaint. The plaintiff pleaded that in case the court
came to the conclusion that the Maharaja Paramjit Singh had no authority to sell the
immovable property to the plaintiff and Dewan Jarmani Dass and/or that the plaintiff
and the said Dewan Jarmani Dass did not acquire any title to the suit property by virtue
of the Indenture of Conveyance dated 10.1.1950, then the plaintiff was entitled to a
sum of Rs. 4 lacs as damages from the third defendant (Sukhjit Singh, the then
Maharaja of Kapurthala), for "breach of the covenant of title contained in the said
indenture of conveyance" as a result of which the plaintiff would be deprived of the
whole of the suit properly by reason of the said defect found in the title of the Maharaja
Paramjit Singh. It was pleaded that the third defendant was the sole heir of late
Maharaja Paramjit Singh and had inherited all his properties and was, thus, bound and
liable to keep the plaintiff harmless and indemnified against "all losses, damages costs
and expenses which the plaintiff might sustain or incur by reason of the plaintiff being
deprived of the suit property." The plaintiff alleged that he had sustained damages in
the sum of Rs. 4 lacs "as per particulars hereto annexed and marked as Ex. J." and
claimed the said amount from defendant No. 3. Interestingly, there is no annexure -
'Ex.J.' to the original plaint on record. The third defendant by his written statement
while traversing the allegations on this issue maintained that he was not liable to keep
the plaintiff indemnified against such losses. He also denied that the plaintiff had lost a

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 sum of Rs. 4 lacs as alleged in his annexure-Ex.J., the particulars of which he also
denied having been supplied to him. A replication to the written statement of Defendant
No. 3 was made by the plaintiff in which it is repeated that the third defendant was
bound and liable to keep the plaintiff indemnified against any loss, damage, costs etc.
suffered as a result of deprivation of the suit property. The plaintiff reiterated that the
third defendant was liable for the claim in the suit and that "the particulars of the claim
of 4 lakhs are on the court file as Annexure T and the Defendant No. 3 ought to have
inspected the court file". After anxiously wading through the mass of documents filed in
the trial court, we are unable to locate any such annexure -T in the plaint. It is not
known as to how the plaintiff arrived at the estimate of the alleged damages claimed by
him from third defendant as an alternative relief (vide prayer Clause (e) in the plaint).
77. Not only there is no pleading on the issue, but we find that there is no evidence,
whatsoever, let in by the plaintiff on this alternative relief claimed. All the witnesses
examined by the plaintiff were with reference to the title of the plaintiff. Not a single of
the plaintiff's witnesses has said a word about this alternative claim for damages in the
sum of Rs. 4 lacs. Apart therefrom, when the third defendant was examined, not a
single question seems to have been addressed to him in cross examination with regard
to this alternative claim of damages in the sum of Rs. 4 lacs.
78. Issues 9, 10 and 13 framed by the learned Single Judge pertained to this claim. The
learned Single Judge disposed of this claim by observing:
"It has been stated by defendant No. 3, in his evidence, that he is the only legal
heir of his father Maharaja Paramjit Singh and he had succeeded to the estate
left behind by him. But in view of the fact that I have held that the father of
defendant No. 3 was the owner of the property in dispute and had the authority
to sell the same, therefore the question of defendant No. 3 becoming liable to
re-compensate the plaintiff with any amount does not arise. The issues are
decided accordingly."
The Division Bench dealt with this issue and observed (vide Paragraph 595):
"The learned Single Judge took the view that third defendant was not liable to
recompensed the plaintiff. It was not brought to the notice of the learned Judge
that the plaintiff did not press his claim against defendant No. 3 at the time of
the trial."
79. Although, in the written submissions filed before the High Court as well as in the
appeal before this Court, submissions have been made with regard to the alternative
relief no arguments were addressed before us on this issue when the oral submissions
were made by the counsel on both sides. Despite looking for it, we are unable to locate
anything on record which expressly suggests that this claim had been expressly given
up by the plaintiff during the trial. We are unable to find out the basis on which the
Division Bench arrived at this conclusion. This fact, however, does not carry the case of
the plaintiff any further. The burden of establishing that the plaintiff had sustained
damages and the measure of damages was squarely on the plaintiff. The plaintiff has
singularly failed to discharge this onus both by lack of pleadings and lack of evidence.
In the circumstances, this alternative relief claimed by the plaintiff must fail.
80. In the result, we find no reason to interfere with the impugned judgment of the
Division Bench of the High Court. The appeal is liable to be and is dismissed.
81. In the facts and circumstances of the case, however, there shall be no order as to

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 costs.
Civil Appeal No. 3861. of 2001 :
82. The facts, insofar as they are relevant for disposal of this appeal are as under:
On 10.1.1950, the late Maharaja Paramjit Singh, ex-Ruler of Kapurthala State
purported to sell and convey the suit property to Dewan Jarmani Dass and R.M.
Seksaria by a registered sale deed for the consideration of Rs. 1.50 lacs.
83. We have already held, by our judgment delivered today in Civil Appeal No. 3862 of
2001, that Maharaja Paramjit Singh had no title to the suit property which he could
convey to the plaintiff. After purporting to sell the suit property to M/s Dewan Jarmani
Dass and R.M. Seksaria, the petitioners put them in possession.
84. On 29.3.1950, the Government of India, in exercise of its power under Section 3 of
the Delhi Premises (Requisition and Acquisition) Act, 1947, issued a notice of
requisition to R.M. Seksaria. This was objected to by R.M. Seksaria, but ultimately an
order of acquisition of the suit property was passed on 17.6.1950.
8 5 . On 4.12.1950, pursuant to the said order of requisition the Estate Officer took
possession of the suit property.
86. On 21.2.1951, a deed of transfer was signed between Dewan Jarmani Dass and
R.M. Seksaria by which Dewan Jarmani Dass conveyed, transferred his undivided share,
rights, title and interest in the property to R.M. Seksaria. There was correspondence
between R.M. Seksaria and the Estate Officer with regard to disposal of the furniture,
fittings drapery etc. in the suit property.
8 7 . On 14.3.1952, the Delhi Premises (Requisition and Acquisition) Act, 1947 was
repealed by the Requisitioning and Acquisitioning of Immovable Property Act, 1952.
Section 24 of the new Act made a deeming provision under which the properties
requisitioned under the repealed Act were deemed to have been requisitioned under the
new Act.
88. On 11.5.1960, R.M. Seksaria (the plaintiff) filed a suit in the Delhi High Court for
declaration of his title to the suit property.
8 9 . The Government of India had taken a decision that the suit property had been
refused to be recognised as the private property of the late Maharaja of Kapurthala. It
took the stand that the suit property was State property and devolved upon PEPSU, and
thereafter, on its successor, State of Punjab. In the meanwhile, the Government of India
had allowed the State of Punjab to use the property.
9 0 . By 10.3.1987 the requisitioning of the property came to an end. By this time,
however, there was a suit for declaration of title of the property. The State of Punjab
and the Government of India denied that R.M. Seksaria had derived any title to the suit
property, and, therefore, refused to hand it back to R.M. Seksaria, despite the
requisitioning order having come to an end.
91. On 18.51987, R.M. Seksaria filed a writ petition, CWP No. 1612/87 in the High
Court of Delhi for a direction to the Union of India, the Director of Estate, Ministry of
Urban Development and the State of Punjab to give vacant possession of the suit
property to the petitioners. This writ petition was heard along with the first appeal RFA
(OS) No. 19 of 1989 filed by the State of Punjab and Union of India impugning the

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 decree in favour of the plaintiff which had been made by the learned Single Judge.
When the writ petition was taken up for hearing, the learned counsel appearing for the
petitioners and the present civil appeal fairly submitted to the court that, if the court
accepted the case of the plaintiff then the petitioners would be entitled to the reliefs
prayed for in the writ petition. By its judgment dated 8.12.2000, the Division Bench of
the High Court dismissed the writ petition by observing thus in Paragraph 4:
"In the light of the findings rendered by us in RFA(OS) 19/89 the plaintiff has
no right at all in the suit property, the petitioners as legal representatives of the
plaintiff in the suit, have absolutely no right to pray for the issuance of writ of
mandamus and other reliefs."
92. This decision of the Division Bench can hardly be faulted. We see no reason to
interfere. In the result, this appeal is also dismissed.
93. No order as to costs.

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