ADVERTISEMENT
Karnataka High Court
Chaduranga Kantharaj Urs vs Union Of India on 16 July, 2026
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
WRIT PETITION No.53075 OF 2015 (GM-RES)
C/W
WRIT PETITION No.35524 OF 2018 (GM-RES)
WRIT PETITION No.3221 OF 2022 (GM-RES)
IN WRIT PETITION NO. 53075/2015
BETWEEN:
CHADURANGA KANTHARAJ URS
S/O LATE K B RAMACHANDRARAJ URS
AGED ABOUT 42 YEARS
R/AT LEELA VIHAR
22/1 GOKULAM ROAD
JAYALAKSHMIPURAM
MYSORE-570 012.
Digitally signed
by SUMA B N
Location: HIGH ALSO AT
COURT OF
KARNATAKA GAYATRI VIHAR
BANGALORE PALACE GROUND
RAMANA MAHARSHI ROAD
BANGALORE-560 080.
...PETITIONER
(BY SRI. S. SRIRANGA SENIOR, ADVOCATE FOR
SMT. SUMANA NAGANAND, ADVOCATE
SRI. ANEESH KRISHNA, ADVOCATE
SRI. KRISHNA S, ADVOCATES)
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AND:
1. UNION OF INDIA
MINISTRY OF LAW AND JUSTICE
4TH FLOOR, "A" WING
SHASTRI BHAVAN
NEW DELHI-110 001
REPRESENTED BY ITS SECRETARY.
2. SMT. PRAMODA DEVI
W/O LATE SRIKANTADATTANARASIMHARAJA WADIYAR
AGED ABOUT 62 YEARS
R/AT THE MYSORE PALACE
MYSORE-570 001.
3. SMT. INDRAKSHI DEVI
W/O SRI.R. RAJA CHANDRA
D/O LATE HIS HIGHNESS
SRI. JAYA CHAMARAJA WADIYAR
AGED ABOUT 69 YEARS
R/AT NO.241, 15TH MAIN ROAD
RMV EXTENSION
SADASHIVANAGAR,
BENGALURU - 560 080.
4. SMT. DEEPA MALINI DEVI
D/O LATE K.B. RAMACHANDRARAJ URS
AGED ABOUT 58 YEARS
R/AT NO.304, BRIGADE PARKWAY
2ND MAIN ROAD, V.V. MOHALLA
MYSURU - 570 002.
...RESPONDENTS
(BY SRI. M.N. KUMAR, CGC FOR R1;
SRI. JAYAKUMAR S. PATIL, SENIOR ADVOCATE FOR
SRI. S. RAJENDRA, ADVOCATE FOR R2;
SRI. PAMOD NAIR SENIOR ADVOCATE FOR
SRI. ARAVIND REDDY H, ADVOCATE FOR R4;
SRI. SUHRITH PARTHASARTHY, ADVOCATE FOR
SRI. ANISH ACHARYA, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE THAT SECTION 5[ii] OF THE HINDU SUCCESSION
ACT IS OTIOSE, REPUGNANT AND UNCONSTITUTIONAL AS
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ALSO INVALID; DIRECT THE UNION OF INDIA TO DELETE
SECTION 5[ii] OF THE STATUE BOOK.
IN WRIT PETITION NO.35524 OF 2018
BETWEEN:
1. VENKATRAO Y. GHORPADE
S/O.H.H.LATE SHRI.YESHWANTRAO GHORPADE,
AGED ABOUT 67 YEARS,
R/AT.SAMPOORNA,
1ST FLOOR, FLAT NO.13,
7TH PALACE CROSS ROAD,
BANGALORE-560 020.
KARNATAKA.
2. GAYATRI GHORPADE
D/O.VENKAT RAO Y GHORPADE,
AGED ABOUT 29 YEARS,
R/AT SAMPOORNA 1ST FLOOR,
FLAT NO.13,
7TH PALACE CROSS ROAD,
BANGALORE-560 020.
...PETITIONERS
(BY SRI. GOVINDARAJU L., ADVOCATE)
AND:
1 . UNION OF INDIA
MINISTRY OF LAW & JUSTICE,
4TH FLOOR, "A" WING,
SHASTRI BHAVAN,
NEW DELHI-110001.
REPRESENTED BY ITS SECRETARY.
2 . SHIVA VILAS TRUST
NO.97, PALACE ROAD,
SANDUR-583119,
REPRESENTED BY ITS SECRETARY,
NAZIM SHEIKH.
...RESPONDENTS
(BY SRI. M.N. KUMAR CGC FOR R1;
SRI. VIVEK HOLLA, ADVOCATE FOR R2)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE THAT SECTION 5(ii) OF THE HINDU SUCCESSION
ACT IS OTIOSE, REPUGNANT AND UNCONSTITUTIONAL AS
ALSO INVALID; SUCH OTHER DIRECTIONS INCLUDING A
DIRECTION TO THE UNIOR OF INDIA TO DELETE SECTION 5(ii)
OF THE STATUTE BOOK.
IN WRIT PETITION NO.3221 OF 2022
BETWEEN:
CHADURANGA KANTHARAJ URS
S/O LATE K B RAMACHANDRARAJ URS
AGED ABOUT 48 YEARS
R/AT "LEELA VIHAR"
22/1, GOKULAM ROAD,
JAYALAKSHMIPURAM
MYSURU - 570 012
ALSO AT
GAYATRI VIHAR
BANGALORE PALACE GROUND
RAMANA MAHARSHI ROAD
BANGALORE - 560 080.
...PETITIONER
(BY SRI. S. SRIRANGA SENIOR, ADVOCATE FOR
SMT. SUMANA NAGANAND, ADVOCATE)
AND:
1. UNION OF INDIA
MINISTRY OF LAW AND JUSTICE
4TH FLOOR, "A" WING
SHASTRI BHAVAN
NEW DELHI - 110 001
REPRESENTED BY ITS SECRETARY.
2. TRIPURASUNDARI DEVI
W/O SWAROOP ANAND
AGED ABOUT 56 YEARS
R/AT KALPANA, NO.5,
DIWANS ROAD,
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LAKSHMI PURAM MYSORE - 570 004
ALSO AT
NO. 17, PRESTIGE DORCHESTER
BEHIND JAKKUR FLYING CLUB
JAKKUR, BANGALORE - 560 065.
...RESPONDENTS
(BY SRI. M.N. KUMAR, CGC FOR R1;
R2 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE THAT SECTION 5(ii) OF THE HINDU SUCCESSION
ACT IS OTIOSE REPUGNANT AND UNCONSTITUTIONAL AS
ALSO INVALID SUCH OTHER WRITS, DIRECTIONS, ORDERS
INCLUDING THE DIRECTION TO THE UNION OF INDIA TO
DELETE SECTION 5(ii) OF THE STATUE BOOK.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED ON 18.06.2026 FOR ORDER COMING ON FOR
PRONOUNCEMENT THIS DAY, THIS COURT MADE THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
CAV ORDER
1. In these writ petitions following common reliefs are
sought:
"a) A writ in the nature of Certiorari or any other
appropriate writ, direction or order to declare that
Section 5(ii) of the Hindu Succession Act is otiose,
repugnant and unconstitutional as also invalid.
b) Such other writs, directions, orders including a
direction to the Union of India to delete Section 5(ii) of
the statue book.
c) Such other writs, directions, orders having regard to
facts and circumstance of the case including the award
of costs".
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2. Brief facts in W.P.Nos.53075/2015 and 3221/2022:
(a) Sri. Jayachamarajendra Wadiyar, was the last
Ruler of the Princely State of Mysore. He had five
daughters and a son. Said Sri. Jayachamarajendra
Wadiyar passed away on 23.09.1974. Upon his
demise, his son Sri. Srikantadatta Narasimharaja
Wadiyar symbolically ascended to the throne.
Smt.Gayathri Devi one of the daughters of
Sri.Jayachamarajendra Wadiyar predeceased him on
30.06.1974. Petitioner in W.P.No.53075/2015,and
W.P.No.3221/2022 namely Sri.Chaduranga Kanthraj
Urs claims to be the son of said Smt.Gayathri Devi.
(b). That Sri. Srikantadatta Narasimharaja Wadiyar,
uncle of the petitioner had groomed the petitioner to
take over the reigns of the Mysore Palace and had
confided him that he would make an equitable and
fair partition of all the assets of Late Maharaja
equally amongst all his sisters including children of
his deceased sister. However, his uncle also died
issueless on 10.12.2013 leaving behind his wife
Pramoda Devi-respondent No.2 as his sole heir.
(c) That the petitioner being the eldest male member
of the royal family was called upon to perform the
last rites of his uncle-Sri. Srikantadatta
Narasimharaja Wadiyar. Upon his demise, his widow,
the respondent No.2 took charge of the affairs of the
palace. Initially, there was great cordiality between
her and the petitioner, which had later turned
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hostile. She refused to appoint petitioner as the
'Uttaradhikari' of the palace.
(d). In the circumstances, petitioner was
constrained to file a suit in O.S.No.25185/2015 on
the file of City Civil Judge, Bengaluru seeking
partition of joint family properties.
(e) That in the said suit an application under Order
VII Rule 11(d) of CPC came to be filed by the
respondent No.2 contending that provisions of the
Hindu Succession Act, 1956 (for brevity 'Act, 1956')
was not applicable in view of provisions contained in
Section 5(ii) of the Act, 1956. It is under these
circumstances, writ petition in W.P.No.53075/2015 is
filed.
(f) Writ petition in W.P.No.3221/2022 is filed by the
very same petitioner-Sri. Chaduranga Kanthraj Urs,
in view of another application under Order VII Rule
11 of CPC being filed by respondent-
Tripurasundaridevi, defendant No.6 in the said suit.
3. Brief facts in W.P.No.35524/2018:
(a) Writ petition in W.P.No.35524/2018 is filed by
Sri. Venkatrao Y. Ghorpade as petitioner No.1 and
Gayatri Ghorpade as petitioner No.2 contending that
they are son and daughter respectively of
Sri.Yeshwantrao Ghorpade the erstwhile Maharaja of
Sandur. That Sri. Yeshwantrao Ghorpade had
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executed a Will dated 09.12.1972 in terms of which,
he had created life interest in favour of his wife Smt.
Sushila Devi while stipulating that the entire estate
would devolve on his eldest son Sri. M. Y. Ghorpade.
Sri.Yeshwantrao Ghorpade died on 11.10.1996
leaving behind his wife Smt.Sushila Devi, petitioner
Nos.1 and 2 and other children. Beneficiaries of the
Will, namely Smt.Sushila Devi and Sri.M.Y.Ghorpade,
the wife and eldest son of Sri.Yeshwantrao Ghorpade
in turn had created a trust in the year 1999 in the
name and style of 'Shiva Vilas Trust'-respondent
No.2. That the object of the respondent No.2-Trust
was to transfer all the estate of Sri.Baharji
Ghorpade, the great grandson of Sri.Yeshwantrao
Ghorpade, from his eldest son, Sri.M.Y.Ghorpade.
(b) Smt.Sushila Devi Ghorpade, the wife of
Sri.Yeshwantrao Ghorpade allegedly executed a Will
dated 11.05.2010, in terms of which she bequeathed
her 1/7th share to all legal heirs in equal proportion
and she died on 01.04.2011. A petition seeking
probate of the said Will was filed before this Court by
the executor of the Will which is pending
adjudication.
(c) Upon the demise of Sri.M.Y.Ghorpade, petitioner
No.1 and other legal heirs had approached his wife
Smt.Vasundhara Raje Ghorpade, whose family is the
beneficiary under the Will executed by
Sri.Yeshwantrao Ghorpade and proposed a fair and
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equitable distribution of assets of the family.
However, she passed away on 31.05.2017.
(d) In the circumstances, petitioners were
constrained to file a suit in O.S.No.25958/2017
before the Civil Court, Bengaluru seeking partition of
joint family properties among all the heirs of late
Maharaja Sri. Yeshwantrao Ghorpade.
(e) Respondent No.2 namely 'Shiva Vilas Trust' has
filed an application under Order VII Rule 11 of CPC
contending that the provisions of the Act, 1956 had
no application to the estate of Late Maharaja, in the
light of Section 5(ii) of Act, 1956.
(f) It is under these circumstances, present petition
is filed.
4. Common grounds urged in the aforesaid Writ
Petitions:
(a) That the Act, 1956, came into force from
17.06.1956. Section 4 of the Act, 1956 provides for
an overriding effect on any text, rule or
interpretation of Hindu law or any custom and usage
and anything inconsistent with the Act, 1956. An
exception is carved out under Section 5 of the Act,
1956 to the effect that the general provisions of
succession would not apply to any estate descending
on a single heir in consequence of any covenant or
agreement entered into by the Rulers of any Indian
State with the Government of India. Said provision,
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providing exception to the general enactment, was
under extraordinary circumstances. Such exceptions
were provided to facilitate integration of princely
states with the Union of India.
(b) This is evident from the agreements dated
23.01.1950, which were entered into between the
Governor General of India and Maharaja of Mysore
produced at Annexure-D in W.P.Nos.53075/2015 and
3221/2022 and agreement dated 01.04.1949
entered into between Governor General of India and
Sri. Yeshwantrao Ghorpade produced at Annexure-F
in W.P.No.35524/2018.
(c) The Rulers who had entered into such
agreements were granted certain privileges along
with Privy Purse. This guarantee and assurance given
to the princely states were incorporated in the
Constitution of India in terms of Articles 291 and
362.
(d) Subsequently, by Presidential order, Union of
India withdrew the said guarantees and assurances
in exercise of its power under clause (22) of Article
366. This action on the part of the Union of India was
declared to be unconstitutional by the Apex Court in
the case of H.H MAHARAJADHIRAJA MADHAV
RAO JIVAJI RAO SCINDIA BAHADUR OF
GWALIOR AND OTHERS Vs UNION OF INDIA
AND ANOTHER reported in (1971) 1 SCC 85
Consequent thereupon, 26th amendment to the
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Constitution was introduced in the year 1971.
Resultantly Articles 291 and 362 were deleted and a
new Article 363-A was introduced, whereby all
guarantees given to the Rulers were withdrawn and
they were ceased to enjoy various benefits and
privileges which were earlier conferred. That the said
26th Constitutional amendment was challenged
before the Apex Court in the case of RAGHUNATH
RAO Vs UNION OF INDIA reported in 1994 Supp
(1) 191 which resulted in its dismissal.
(e) Thus, the erstwhile Rulers or their successors
were no longer entitled to any privileges or benefits
and they formed common citizenry of the country.
(f) In the light of aforesaid position of law, continued
incorporation of Section 5(ii) of the Act, 1956 is
untenable and anachronistic rendering itself to abuse
and mischief. As such, the aforesaid petitions are
filed seeking reliefs as noted above.
Objections to the Writ Petitions:
5. Respondent No.1-Union of India has filed its statement of
objections contending inter-alia;
(a) that Section 4 of the Act, 1956, intends to
override any text, rule or interpretation of Hindu law
or any custom or usage with respect to any matter
for which provision is made in the Act, 1956. Section
5 carves out three factual situations that would make
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the Act, 1956 inapplicable to the cases arising under
the such facts. That the Section 5(ii) of the Act, 1956
deals with the cases where the estate of the
deceased descends to a single heir and such act of
descend arises out of terms of any covenant or
agreement entered into by the Ruler of any Indian
State with the Government of India before the
commencement of the Act, 1956.
(b) Section 5(ii) of the Act, 1956 deals with what is
known in Hindu law as impartible estate. Impartible
estate is one where it devolves on a single member
of a family to the exclusion of other members.
(c) That a clear reading of the Act, 1956 discloses
that it applies to deal with the properties of a Hindu
dying intestate. Section 5(ii) of the Act, 1956 has to
be understood in the context of the scheme of the
Act, 1956. Section 5 makes the Act inapplicable to
certain kind of properties alone. It is therefore
evident that the bar under Section 5(ii) of the Act,
1956 will not arise unless the properties dealt with in
any factual scenario belong to an Indian Ruler in his
private capacity. In other words, the Act does not
intend to exclude a Hindu, but excludes certain
properties that may be in the hands of a Hindu dying
intestate.
(d) That the agreement entered into between
Government of India and the Rulers of the subject
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matter of the writ petitions deals with financial
compensation to be given thereunder.
(e) Article II and Article 3 of the agreements makes
it clear that the Ruler shall be entitled to full
ownership, use and enjoyment of the private
properties as distinct from the state properties
belonging to them on the date of the agreement.
Hence, the question of challenging the constitutional
validity would not arise.
(f) Article 291 deals with Privy Purse. Where under,
any covenant or agreement entered into between the
Ruler and the Government of India, where the
Government had guaranteed payment of any sum
free of tax, it shall constitute a charge on the
consolidated fund. Article 362 protects the Ruler by
prohibiting the Parliament or Legislature from
tinkering with such guarantee by enacting any law.
(g) That by introduction of Article 363-A, the
recognition given to the Ruler, benefit of Privy Purse
and privilege cease to exist. Section 5(ii) of the Act,
1956 does not deal with any of the matters dealt
with under Articles 291, 362 or 363-A. As such, 26th
amendment to the Constitution does not have any
impact on Section 5(ii) of the Act, 1956.
Contending as above, sought for dismissal of the Writ
Petitions.
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6. Shiva Vilas Trust-respondent No.2 in Writ Petition
No.35524/2018, filed statement of objections, contending
inter-alia;
(a) that averments in the writ petition regarding
existence of Section 5(ii) of the Act, 1956 in the
statute being redundant and anachronistic, in the
light of decision of the Hon'ble Apex Court in the case
of RAGHUNATH RAO GANAPATH RAO supra
upholding the constitutional validity of 26th
amendment to the Constitution of India, are
misconceived. That the Apex Court in the said case
only dealt with the question of whether 26th
amendment affected the basic structure of the
Constitution and it did not delve upon the question
regarding devolution of impartible estate, from a
former Ruler.
(b) That reading of Article 363-A makes it clear, it
only seeks to end the recognition of position of a
Rulership which was given under Article 362 and
grant of Privy Purse under Article 291. That the 26th
amendment by no means speaks about the estate
that has devolved onto the heir of former Ruler. It
does not strip the former Ruler in keeping the
property as his own private or personal property.
(c) That the 26th Amendment can be distinguished
from Section 5(ii) of the Act, 1956 in that Section
5(ii) of the Act, 1956 seeks to protect such property
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that had been held by a former Ruler as his own and
which he has chosen to bequeath to his eldest son.
There is no special privilege that are envisaged under
Section 5 of the Act, 1956.
(d) Though, Articles 291 and 362 have been repealed
by 26th amendment by way of insertion of Article
363-A, it does not deal with estate that is protected
by a covenant entered into by a person who at the
time of signing the covenant was recognized as a
Ruler. Section 5(ii) of the Act, 1956 exists to protect
the character of estate that is covered by the
covenant for the Ruler to retain what already
belonged to him as his personal properties.
(e) That the law made by the Parliament can be
struck down by Constitutional Court only on two
grounds, namely; (i) Lack of legislative competence
and (ii) Violation of any fundamental rights or any
other constitutional provisions.
(f) As such, the contention of the petitioners that the
Section 5(ii) of the Act, 1956 is an affront to the
Constitution and is incongruous with introduction of
Article 363-A by 26th amendment, is unsubstantiated
and misplaced. Provisions of Section 5(ii) of the Act,
1956 are not contradictory to the Amendment Act
and cannot be held to be unconstitutional.
Contending as above sought for dismissal of the Writ
Petitions.
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Submissions of learned counsel for the parties:
7. Sri. Sriranga, learned Senior Counsel and Sri. Ajay
Govindraj learned Counsel for the petitioners in these writ
petitions reiterating the averments and the grounds urged
in the writ petitions contended;
(a) that the effect of 26th amendment to the
Constitution of India resulting in deletion of Articles
291 and 362 and insertion of Article 363-A was that
the former Rulers and their successors who were
given privileges in terms of Articles 291 and 362
have now been treated as part of Indian Citizenry
subject to ordinary Civil and Municipal law of the
country.
(b) The 26th amendment to the Constitution has
been upheld by the Apex Court. In that view of the
matter, Section 5(ii) of the Act, 1956 which provided
certain guarantees and assurance also has become
redundant. Since provisions of Section 5(ii) of the
Act, 1956 was introduced in the year 1956 in
furtherance to the guarantees provided under
Articles 291 and 362 during the transitory period,
and the said Articles now having been deleted from
the Constitution, retention of Section 5(ii) of the Act,
1956 serves no purpose. Instead has created
hardship and hurdles to the persons like petitioners
who are otherwise entitled for share in the joint
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family properties left behind by the erstwhile Rulers
and their descendants.
(c) That the aforesaid provision which was initially
valid has become discriminatory with passage of time
and it has lost its nexus with object sought to be
achieved.
(d) That taking undue advantage of the existence of
the said provision, applications as that of the one in
these cases have been filed under Order VII Rule
11(d) of CPC seeking rejection of the plaints
subjecting the petitioners to undergo unwarranted
hardship.
(e) That when the Constitution itself was amended,
resulting in deletion of Articles 291 and 362 and
insertion of 363-A, there cannot be any
discrimination even in the matter of succession to a
Hindu joint family property and Section 5(ii) of the
Act, 1956 has become hindrance in achievement of
this aspect. Therefore, it is insisted that provisions of
Section 5(ii) of the Act, 1956 shall not be allowed to
remain in the statute book.
(f) That by passage of time it has lost its rationale of
classification based on which it was enacted and has
thus become arbitrary and unreasonable. It has
failed to pass the classification test under Article 14
of the Constitution of India.
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(g) In support of their contentions, learned Counsels
have relied upon the following judgments:
(i) H.H Maharajadhiraja Madhav Rao Jivaji Rao
Scindia Bahadur of Gwalior and others v. Union of
India and another reported in 1971 (1) SCC 85.
(ii) Raghunath Rao Vs. Union of India reported in
1994 Supp (1) SCC 191
(iii) Shanta Devi Pratapsingh Gaekwad and Another
Vs. Shrimant Sangram Singh Pratap Singh reported
in 1995 SCC Online GUJ 138.
(iv) D.S. Nakara and Ors. Vs. Union of India
reported in 1983 1 SCC 305.
(v) Talat Fathima Hasan v. Syed Murtaza Ali
reported in (2020) 15 SCC 655.
(vi) Maharani Deepinder Kaur (since deceased)
through Legal Representatives and Others v.
Rajkumari Amrit Kaur and Others, reported in
(2022) 9 SCC 658.
(vii) Tikka Shatrujit Singh and others Vs. Sukjith
Singh and another reported in 2026 SCC Online SC
971.
(viii) Maharaj Shri Manvendrasinhji Ranjitsinhji
Jadeja Vs. Rajmata Vijaykunverba reported in 1988
SCC online GUJ 281.
(ix) Motor General Traders and Another Vs. State of
Andhra Pradesh and others reported in (1984) 1 SCC
222.
(x) Satyawati Sharma Vs. Union of India, reported in
(2008) 5 SCC 287.
(xi) State of West Bengal Vs. Anwar Ali Sarkar
reported in (1952) 1 SCC 1.
(xii) Shri. Ram Krishna Dalmia v. S.R.Tendoulkar
and others reported in 1958 SCC Online SC 6
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8. Sri. Jayakumar S. Patil, learned Senior Counsel appearing
for the contesting respondent No.2 referring to Article
253 of the Constitution of India, submitted;
(a) that the agreements or covenants that were
entered into between the Dominion of India and the
erstwhile Rulers of the Princely States were in the
capacity of two sovereign nations and the terms of
said agreements are required to be given the status
as contemplated under Article 253 of the Constitution
of India.
(b) That deletion of Articles 291 and 362 of the
Constitution of India by way of 26th amendment has
no bearing of any nature whatsoever with regard to
the agreements and covenants that have been
entered into between two sovereign states by virtue
of Article 253.
(c) That Articles 291 and 362 pertains only to grant
of Privy Purse, certain privileges and guarantees and
they do not deal with other aspects of the matter
including right to private properties.
(d) That Article 363-A was introduced withdrawing
the recognition which was granted only to the extent
of privileges and guarantees, which contained under
Articles 291 and 362. What is abolished is only said
Privy Purse and the special privileges and nothing
else. He referred to provisions of Indian
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Independence Act, 1947 and also refers to paragraph
Nos.100, 101, 102, 309, 115, 125, 126, 129, 143,
161 and 162 of the judgment of the Apex Court in
the case of H.H MAHARAJADHIRAJA MADHAV
RAO JIVAJI RAO SCINDIA BAHADUR OF
GWALIOR supra, in support of his submissions.
(e) Adverting to the grounds of challenge to the
constitutionality of a statute, learned Senior Counsel
relying upon paragraph Nos.41, 42 and 43 of the
judgment of the Apex Court in the case of STATE OF
ANDHRA PRADESH AND OTHERS Vs McDOWELL
AND CO., AND OTHERS reported in (1996)3 SCC
709 as well as paragraph Nos.62, 63, 64 and 65 of
the judgment of the Apex Court in the case of
RAJBALA AND OTHERS Vs STATE OF HARYANA
AND OTHERS reported in (2016) 2 SCC 445
contended that the grounds of challenge to the
constitutional validity of a statute can only be on the
basis of legislative competence and violation of
fundamental rights, if any and that the petitioners
have not made out any case on these grounds,
warranting grant of relief as sought for in these writ
petition. Hence, sought for dismissal of the writ
petition.
9. Sri. Pramod Nair, learned Senior Counsel appearing for
respondent No.4 in W.P.No.53075/2015 submitted;
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(a) that the constitutionality of Section 5(ii) of the
Act, 1956 need not be gone into in the light of
judgment of the Apex Court in the case of TIKKA
SHATRUJIT SINGH AND OTHERS Vs SUKJITH
SINGH AND ANOTHER reported in 2026 SCC
ONLINE SC 971.
(b) Referring to paragraphs 53, 54, 57, 60-64, 74,
77 and 94 he submitted that the Apex Court has read
down the provisions of Section 5(ii) of the Act, 1956
and has clarified its applicability. Therefore there is
no requirement to consider constitutional validity or
otherwise of the said provision.
10. Sri. M.N. Kumar, learned Central Government Senior
Panel Counsel appearing for respondent No.1-Union of
India, referring to paragraph Nos.13 and 14 of the
Statement of Objections submits;
(a) That Section 5(ii) the Act, 1956 is applicable only
depending upon the terms of any covenant or
agreement that had been entered into between the
erstwhile Rulers of Princely State of India and the
Union of India.
(b) That in the light of specific Articles of the
Agreements, the application of provisions of Section
5(ii) of the Act, 1956 would be made applicable only
in respect of Gaddi and not to the private properties,
- 22 -
which are not covered under terms of the
agreement.
(c) He refers to paragraph Nos.78 and 79 of TIKKA
SHATRUJIT SINGH supra in support of his
submission.
11. Sri. Vivek Holla, learned Counsel appearing for respondent
No.2-Shiva Vilas Trust, in W.P.No.35524/2018,
supporting and supplementing the submissions made by
the learned counsels' appearing for the respondents,
submitted;
(a) that the petitioners in order to succeed in the
petition at the outset are required to show, how they
are affected by the provisions of Section 5(ii) of the
Act, 1956. The said Section is inapplicable to the
facts and circumstances of the case. That the
challenge to the constitutionality cannot be in
vacuum and unless petitioners specifically make out
a case of existence of such a provision in the statute
directly affecting their interest, relief as sought for
cannot be granted.
(b) He referred to paragraph Nos.19 to 21 of the
Judgment of the Apex Court in the case of KUSUM
INGOTS AND ALLOYS Ltd., Vs. UNION OF INDIA
AND ANOTHER reported in (2004) 6 SCC 254.
- 23 -
12. Heard and perused the records.
13. The points that arise for consideration are;
(1) Whether deletion of Articles 291 and 362 with the
insertion of Article 363-A of the Constitution of India has
rendered provisions of Section 5(ii) of the Act, 1956 otiose and
redundant?
(2) Whether with the passage of time provisions of Section
5(ii) of the Act, 1956 has become arbitrary, discriminatory,
irrational and therefore unconstitutional?
(3) Whether a direction is required to be issued to the
respondent-Union of India to delete Section 5(ii) of the Act,
1956 from the statute as sought for by the petitioners?
Discussions and analysis:
14. Petitioners have sought the reliefs as noted above
essentially on the following grounds:
(a) That Section 5(ii) of the Act, 1956 which was
initially valid has now, in the light of deletion of
Articles 291 and 362 and insertion of Article 363-A of
the Constitution by the Constitution (Twenty-Sixth
amendment) Act, 1971, lost its nexus with the object
sought to be achieved thereby has become
redundant and discriminatory;
(b) That by passage of time it has lost its rationale
of classification based on which it was enacted and
has thus become arbitrary and unreasonable.
- 24 -
Factual background; object of Articles 291 and 362
and effect of their deletion by the 26th
Constitutional Amendment:
15. Before adverting to the points raised, it is appropriate to
encapsulate the factual background of the aforesaid
provisions.
16. On 18.07.1947, Indian Independence Act, 1947 (for
brevity 'the Act, 1947') was promulgated. Preamble of
the said Act, reads as under;
''An Act to make provision for setting up in India of two
independent dominions to substitute other provisions for certain
provisions of the Government of India Act, 1935, which applies
outside those dominions and to provide for other matters
consequential on or connected with setting up of those
dominions.''
17. Section 1 of the Act, 1947 declared that as from Fifteenth
Day of August, Nineteen Hundred and Forty Seven, two
independent dominions to be known respectively as India
and Pakistan shall be set-up.
18. Section 7 of the Act, 1947 provided for the consequences
of setting up of new dominions, which read as under:
"7. Consequences of the setting up of the new Dominions
(I) As from the appointed day-
- 25 -
(a) His Majesty's Government in the United Kingdom have
no responsibility as respects the government of any of the
territories which, immediately before that day, were
included in British India;
(b) the suzerainty of His Majesty over the Indian States
lapses, and with it, all treaties and agreements in force at
the date of the passing of this Act between His Majesty and
the Rulers of Indian States, all functions exercisable by His
Majesty at that date with respect to Indian States, all
obligations of His Majesty existing at that date towards
Indian States or the Rulers thereof, and all powers, rights,
authority or jurisdiction exercisable by His Majesty at that
date in or in relation to Indian States by treaty, grant,
usage, sufferance or otherwise; and
(c) there lapse also any treaties or agreements in force at
the date of the passing of this Act between His Majesty and
any persons having authority in the tribal areas, any
obligations of His Majesty existing at that date to any such
persons or with respect to the tribal areas, and all powers,
rights, authority or jurisdiction exercise-able at that date by
His Majesty in or in relation to the tribal areas by treaty,
grant, usage, sufferance or otherwise;
Provided that, notwithstanding anything in paragraph (b) or
paragraph (c) of this subsection, effect shall, as nearly as
may be, continue to be given to the provisions of any such
agreement as therein referred to which relate to customs,
transit and is communications, -posts and telegraphs, or
other like matters, until the provisions in question are
denounced by the Ruler of the Indian State or person
having authority in the tribal areas on the one hand, or by
the Dominion or Province or other part thereof concerned
on the other hand, or are superseded by subsequent
agreements.
2) The assent of the Parliament of the United Kingdom is
hereby given to the omission from the Royal Style and
Titles of the words " Indiae Imperator " and the words "
Emperor of India " and to the issue by His Majesty for that
purpose of His Royal Proclamation under the Great Seal of
the Realm.''
19. Thus, on and after coming into force of the Act, 1947, the
paramountcy of British lapsed and two independent
dominions namely India and Pakistan came into
existence. Besides, 562 Indian States became completely
- 26 -
sovereign and independent. Indian States were free to
accede either to Dominion of India or of Pakistan or to
remain independent. Those Rulers of Indian States who
opted to accede to the Dominion of India entered into
Instruments of Mergers which were accepted by the
Governor General of India and the Indian States thus
becoming part of Dominion of India. The said instruments
broadly provided for matters specified in the schedule
thereto with regard to dominion legislature to make laws
for the state. The said instruments also provided that the
erstwhile Rulers of Indian states were entitled to receive
annually from the revenue of the state an allowance
called ''Privy Purse'' as specified in the said agreements,
which amount was to be free of taxes. The said
instruments also reserved personal rights, privileges and
dignities of the Rulers of Indian States.
20. Constituent assembly, which was entrusted with the task
of framing constitution had guaranteed the provisions
contained in the said merger instruments including the
provisions relating to Privy Purse and personal privileges
and dignities. In furtherance to this guarantee contained
in the instruments of merger, the Constituent Assembly
- 27 -
of India adopted two articles namely Articles 291 and
Article 362.
21. Article 291 dealt with matter pertaining to payment of
Privy Purse while Article 362 dealt with guarantees and
assurances of personal rights and privileges of the Rulers
of Indian States. Clause (22) of Article 366 provided
recognition of the Rulers for the purpose of enjoyment of
Privy Purse, privileges, titles and dignities, which was
agreed to and assured in terms of merger instruments.
Said Articles 291, 362 and clause (22) of 366, read as
under;
"291. Privy Purse sums of Rulers.-- (1) Where under any
covenant or agreement entered into by the Ruler of any Indian
State before the commencement of this Constitution, the
payment of any sums, free of tax, has been guaranteed or
assured by the Government of the Dominion of India to any
Ruler of such State as Privy Purse --
(a) such sums shall be charged on, and paid out of, the
Consolidated Fund of India; and
(b) the sums so paid to any Ruler shall be exempt from all
taxes on income.
(2) Where the territories of any such Indian State as aforesaid
are comprised within a State specified in Part A or Part B of the
First Schedule, there shall be charged on, and paid out of, the
Consolidated Fund of that State such contribution, if any, in
respect of the payments made by the Government of India
under clause (1) and for such period as may subject to any
agreement entered into in that behalf under clause (1) of Article
278, be determined by order of the President.
362. Rights and privileges of Rulers of Indian States.--
In the exercise of the power of Parliament or of the Legislature
of a State to make laws or in the exercise of the executive
power of the Union or of a State, due regard shall be had to the
guarantee or assurance given under any such covenant or
- 28 -
agreement as is referred to in clause (1) of Article 291 with
respect to the personal rights, privileges and dignities of the
Ruler of an Indian State."
Clause (22) of Article 366
'Ruler' in relation to an Indian State means the Prince, Chief
or other person by whom any such covenant or agreement as is
referred to in clause (1) of Article 291 was entered into and
who for the time being is recognised by the President as the
Ruler of the State, and includes any person who for the time
being is recognised by the President as the successor of such
Ruler.
22. The aforesaid assurance and guarantee contained in Articles
291 and 362 was subsequently sought to be withdrawn
by a Presidential order, which was challenged in the case
of H.H MAHARAJADHIRAJA MADHAV RAO supra. The
Eleven-Judges Bench of the Apex Court held that the
Presidential order withdrawing the guarantees and
assurance provided under Articles 291 and 362 to be
unconstitutional, illegal and ultra vires.
23. Consequent thereupon, Constitution (Twenty-Sixth
Amendment) Act, 1971 was brought in, in terms of which,
guarantees and assurances given to the erstwhile Rulers
of Indian States for the payment of Privy Purse, personal
rights, privileges and dignities as contemplated under
Articles 291 and 362 were withdrawn by deleting the said
two Articles and by inserting Article 363-A and
substituting clause (22) of Article 366. This 26th
- 29 -
amendment to the Constitution was again challenged in
the case of RAGHUNATH RAO supra, the Constitution
Bench of the Apex Court upheld the constitutionality of
the 26th amendment by declaring that it did not violate
the basic structure of the Constitution and hence it was
valid. It also found that removal of Articles 291 and 362
had not made any change in the personality of the
constitution either in its scheme or in its basic feature or
in its basic form or in its character.
24. Article 363-A and substituted clause (22) of Article 366,
which read as under:
'' 363-A. Recognition granted to Rulers of Indian
States to cease and Privy Purses to be abolished.--
Notwithstanding anything in this Constitution or in any law for
the time being in force--
(a) The Prince, Chief or other person who, at any time
before the commencement of the Constitution (Twenty-
sixth Amendment) Act, 1971, was recognised by the
President as the Ruler of an Indian State or any person
who, at any time before the commencement, was
recognised by the President as the successor of such
Ruler shall, on and from such commencement, cease to
be recognised as such Ruler or the successor of such
Ruler;
(b) on and from the commencement of the Constitution
(Twenty-sixth Amendment) Act, 1971, Privy Purse is
abolished and all rights, liabilities and obligations in
respect of Privy Purse are extinguished and accordingly
the Ruler, or as the case may be, the successor of such
Ruler, referred to in clause (a) or any other person shall
not be paid any sum as Privy Purse ."
- 30 -
Substituted or amended clause (22) of Article 366
'Ruler' means the Prince, Chief or other person, who at
any time before the commencement of the Constitution
(Twenty-sixth Amendment) Act, 1971, was recognised
by the President as the Ruler of an Indian State or any
person who, at any time before such commencement,
was recognised by the President as the successor of such
Ruler.
25. From the above, it becomes clear that by deletion of
Articles 291 and 362 and with the insertion of Article 363-
A, the guarantees and assurances given as well as the
recognition granted to Indian Rulers was withdrawn, and
they becoming part of Indian citizenry subject to ordinary
Civil and Municipal law of the country.
26. Apposite to refer to observation of the Apex Court in the
case of VEERENDRA SINGH Vs STATE OF UTTAR
PRADESH reported in (1995) 1 SCR 415 even as
quoted at paragraph 97 of the Judgment in the case of
RAGHUNATH RAO supra, which is as under:
"Every vestige of sovereignty was abandoned by the dominion
of India and by the States and surrendered to the people of the
land who through their representatives in the Constituent
Assembly hammered out for themselves a new Constitution in
which all were citizens in a new order having but one tie, and
owing but one allegiance: devotion, loyalty, fidelity to the
Sovereign Democratic Republic that is, India."
- 31 -
27. It is in these factual background of the matter present
petitions have been filed raising the grounds as noted
above.
Regarding Point No.(1):
(1) Whether deletion of Articles 291 and 362 and insertion of
Article 363-A of the Constitution of India has rendered
provisions of Section 5(ii) of the Act, 1956 otiose and
redundant?
28. Thrust of the argument on behalf of the petitioners is that
the erstwhile Rulers of the Princely States of India, who
had integrated with the Dominion of India by entering
into certain agreements/covenants, were granted
constitutional guarantees and assurance by way of
incorporation of Articles 291 and 362. That the said
Articles 291 and 362 having been deleted by virtue of 26th
amendment to the Constitution and by insertion of Article
363-A, the guarantees and assurances contained in
Articles 291 and 362 have been effaced from the text.
That since Section 5(ii) of the Act, 1956 being in the
nature of such guarantees and assurances is traceable to
the provisions of Articles 291 and 362 and since these
two articles have been deleted, Section 5(ii) of the Act,
1956 shall also stand effaced.
- 32 -
29. On the contrary, it is the contention of contesting
respondents that the deletion of Articles 291 and 362
has no bearing or effect either on existence of Section
5(ii) of the Act, 1956 or on the terms of the agreements
and covenants that was entered into between the two
sovereign States namely the Princely States of Mysore
and Sandur (in the instant case) and the Dominion of
India. According to the contesting respondents Section
5(ii) of the Act, 1956 is a recognition of the guarantees
and assurances contained in terms of the agreements
which will have to be read and understood in the light of
Article 253 of the Constitution of India and therefore
existence of Section 5(ii) of the Act, 1956 cannot be held
to be otiose or redundant merely because deletion of
Articles 291 and 362 or introduction of Article 363-A of
the Constitution of India by way of 26th amendment.
30. Plain reading of Article 291 before its deletion, indicate
that guarantee and assurance was with respect to Privy
Purse, given by the Government of Dominion of India to
any Rulers of Indian States, who had entered into any
agreements/covenants before the commencement of the
Constitution. It also provided for payment of such sums
- 33 -
from and out of consolidated funds of India and same
were also exempted from all taxes on income.
31. Similarly, reading of Article 362 indicate, that any laws
made by the parliament or the legislature of the State or
in exercise of its executive power of the Union or State
shall have regard to the guarantee and assurance given
under any agreements/covenants with respect to personal
rights, privileges and dignities of the Rulers of the Indian
States as referred to in clause (1) of Article 291.
32. Clearly, the guarantee and assurance as contemplated
under the Articles 291 and 362 was in relation to personal
rights, privileges and dignities and there is nothing to
indicate that the same was extended in respect of any
personal/private properties of the Rulers of Indian States.
33. The consequential question that would arise is
notwithstanding deletion of Articles 291 and 362 and by
insertion of Article 363-A, whether Section 5(ii) of the
Act, 1956 has its independent existence and whether
same has any relevance to the facts of the instant case.
34. The Hindu Succession Act, 1956 was enacted to amend
and codify the law relating to intestate successions
- 34 -
among Hindus. Section 4 of the Act, 1956 providing
overriding effect, which reads as under:
4. Overriding effect of Act.― (1) Save as otherwise
expressly provided in this Act,―
(a) any text, rule or interpretation of Hindu law or any
custom or usage as part of that law in force immediately
before the commencement of this Act shall cease to have
effect with respect to any matter for which provision is made
in this Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to apply to Hindus in
so far as it is inconsistent with any of the provisions
contained in this Act.
35. Section 5 of the Act, 1956 is bar to the applicability of the
Act, 1956, which reads as under:
5. Act not to apply to certain properties.― This Act shall
not apply to―
(i) any property succession to which is regulated by the
Indian Succession Act, by reason of the provisions contained
in section 21 of the Special Marriage Act, 1954
(ii) any estate which descends to a single heir by the
terms of any covenant or agreement entered into by
the Ruler of any Indian State with the Government of
India or by the terms of any enactment passed before
the commencement of this Act;
(iii) the Valiamma Thampuran Kovilagam Estate and the
Palace Fund administered by the Palace Administration Board
by reason of the powers conferred by Proclamation (IX of
1124) dated 29th June, 1949, promulgated by the Maharaja
of Cochin.
36. Reading of Section 5(ii) of the Act, 1956 which is sought
to be deleted from the statute in these writ petitions
- 35 -
indicate that the bar contained therein is applicable only
in respect of;
(i) any 'estate' which by its very nature descends to a
single heir
(ii) such descend shall be by the terms of any
covenant or agreement entered into by the Ruler
of any Indian State with the Government of India
or
(iii) by the terms of any enactment passed before the
commencement of this Act.
37. Thus the bar is applicable only in respect of certain type of
'estate', of erstwhile Ruler of Indian State under special
circumstances as envisaged therein.
38. Apposite at this juncture to extract relevant Articles of the
agreement of merger that have been entered into
between the Governor General of India and His Highness
of Maharaja of Mysore on 23.01.1950, produced at
Annexure-D to W.P.No.53075/2015 (hereinafter referred
to as `Annexure-D'), which is as under:
''ARTICLE I
(1) The Maharaja of Mysore shall, with effect from the
first day of April, 1950, be entitled to receive annually for his
Privy Purse the sum of Rs. 26,00,000/- (Rupees twenty-six
lakhs) free of all taxes;
- 36 -
Provided that the sum specified above shall be payable
only to the present Maharaja of Mysore for his life-time, and not
to his successors, for whom provision will be made
subsequently by the Government of India.
(2) The said amount is intended to cover all the
expenses of the Maharaja and his family including expense on
account of his personal staff, maintenance of his residences,
marriages and other ceremonies, etc., and will neither be
increased or reduced for any reason whatsoever.
(3) The said amount shall be payable to the Maharaja in
four equal instalments at the beginning of each quarter in
advance.
(4) The payment of the said amount as herein provided
is guaranteed by the Government of India.
ARTICLE II
(1) The Maharaja 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 this
agreement.
(2) The Maharaja will furnish to the Government of India
before the twenty third day of January, 1950, an inventory of
all the immovable property, 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 Maharaja or State
property, it shall be referred to such person as the Government
of India may nominate and the decision of that person shall be
final and binding on all concerned.
ARTICLE III
The Maharaja and the members of his family shall be entitled to
all the personal privileges, dignities and titles enjoyed by them
whether within or outside the territories of the State immediately
before the fifteenth day of August 1947.
ARTICLE IV
The Government of India guarantees the succession according to
law and custom to the Gaddi of the State and to the personal
rights, privileges, dignities and titles of the Maharaja.''
- 37 -
39. Similar is the agreement that was entered into between
the Governor General of India and the Ruler of Sandur on
01.04.1949, at Annexure-F in W.P.No.35524/2018
(hereinafter referred to as `Annexure-F') relevant portion
of the said agreement read as under:
''Article-1
The Raja of Sandur State hereby cedes to the Dominion
Government full and exclusive authority, jurisdiction and powers for
an in relation to the governance of the State and agrees to transfer
the administration of the State to the Dominion Government on the 1st
day of April, 1949. (hereinafter referred to as "the said day").
As from the said day the Dominion Government will be competent
to exercise the said powers, authority and jurisdiction in such manner
and through such agency as it may think fit.
Article-2
The Raja of Sandur shall with effect from the said day be entitled to
receive from the revenue from the revenues of the State annually for
his Privy Purse the sum of Ninety thousand rupees free of taxes. This
amount is intended to cover all the expenses of the Ruler and his
family, including expenses on account of his personal staff,
maintenance of his residences, marriage and other ceremonies, etc.
and will neither be increased nor reduced for any reason whatsoever.
The said sum may be drawn by the Raja in four equal installments in
advance at the beginning of each quarter by presenting bills at the
State Treasury or at such other Treasury as may be specified by the
Dominion Government.
Article-3
The Raja shall be entitled to the full ownership, use and enjoyment of
all private properties (as distinct from State property) belonging to
him on the date of this agreement, and specified in the schedule
hereunto appended.
Article-4
The Raja, the Rani, the Rajmata, the Yuvraj and the Yuvrani shall be
entitled to all personal privileges enjoyed by them whether within or
outside the territories of the State, immediately before the 15th day of
August 1947.
- 38 -
Article-5
The Dominion Government guarantees the succession, according to
law and custom, to the gadi of the State and to the Raja's personal
rights, privileges, dignities and titles.
40. Reading of Article I and Article III of the agreement at
Annexure-D and Article 2 and Article 4 at Annexure-F
indicate that they pertain to understanding between the
Dominion of India on one part and Rulers of Mysore and
Sandur Princely States on the other part respectively,
providing for payment of Privy Purse and assurance with
respect to personal privileges, dignities and titles of the
said Rulers.
41. Article II of Annexure-D and Article 3 of Annexure-F speak
about entitlement of the Rulers to the full ownership, use
and enjoyment of all private properties (as distinct from
state properties). There is no any guarantee and
assurance with regard to the succession to such private
properties.
42. Article IV at Annexure-D and Article 5 at Annexure-F
expressly speak about guarantee by the Dominion
Government to the succession according to law and
- 39 -
custom to the (i) Gaddi and (ii) personal rights,
privileges, dignities and titles.
43. Though the aforesaid covenants contained in Article I and
Article III of the agreement at Annexure-D and Article 2
and Article 4 at Annexure-F with regard to payment of
Privy Purse and assurance with regard to personal
privileges, dignities and titles have been done-away with
by deletion of Articles 291 and 362, the entitlement with
regard to all the "private properties" as well as rules of
succession to the "Gaddi" of the Ruler of Mysore as
provided under Article-II and Article-IV at Annexure-D
and of Ruler of Sandur as provided under Article 2 and
Article 5 at Annexure-F remained unaltered.
44. As such, question with regard to succession to the
"private properties" as distinct from the state properties
and succession to "Gaddi" or "impartible estate" of a
Ruler is to be adverted, subject to applicability of the
provisions of the Act, 1956, with specific pleading and
proof of customs, if any, indicating to the contrary.
45. This aspect of the matter had come up for consideration
though under different contexts i.e., in the appeals filed
- 40 -
from the original judgment and decree passed in the suit
for partition, by some of the erstwhile Rulers under
identical facts and circumstances as that of the case at
hand. One of the such judgments of the Apex Court is in
the case of TALAT FATHIMA HASAN Vs SYED
MURTAZA ALI reported in (2020) 15 SCC 655, wherein
the Apex Court has distinguished the ownership of the
private properties of the Ruler so declared by him in
agreement of accession with that of the entitlement to
the Gaddi. As regards the private properties, the Apex
Court has held that the devolution/succession to the
private properties would be as per the personal law
governing the parties while succession to Rulership or
Gaddi would be governed by the rule of primogeniture.
46. In the case of MAHARANI DEEPINDER KAUR (since
deceased) through Legal Representatives and
others Vs RAJKUMARI AMRIT KAUR AND OTHERS
reported in (2022) 9 SCC 658 three Judges Bench of
the Apex Court has held that the rule of primogeniture
does not apply to the private properties, however, it is
required to be proved only by way of evidence to the
satisfaction of the Court, with necessary particular
- 41 -
pleadings and by adducing cogent material evidence. The
Apex Court, referring to the terms of the agreement
subject matter of the said case, similar to that of the one
in the instant case, found that the guarantee under the
covenant therein was only in respect of succession to
Gaddi and not to the private properties of the ex-Ruler.
The Apex Court has also adverted to provisions of Section
5 of the Act, 1956 in the said judgment and has held that
the succession in respect of private properties was to be
governed under the provisions of Act, 1956.
47. The Apex Court in the case of TIKKA SHATRUJIT SINGH
supra, taking note of its aforesaid earlier judgments
including the judgments rendered on the constitutional
validity of deletion of Articles 291 and 362, in the case of
RAGHUNATH RAO supra, and specifically referring to
Section 5(ii) of the Act, 1956, at paragraph Nos.77 to 80
and 94 of the said judgment has held as under:
'' 77. It may not be out of context to refer to Section 5 of the
Hindu Succession Act, 1956, which came into force on 17 June
1956. The aforesaid Act provides for overriding effect over any text,
rule or interpretation of Hindu Law or any custom or usage as part
of Law in force and that such law shall cease to have effect with
respect to any matter provided for under the Act. Sections 6 and 8
of the Act provide for the devolution of interest in coparcenary
property, and Section 5 is an exception to it. The relevant part of
Section 5, for our purposes, is reproduced herein below:
- 42 -
"5. Act not to apply to certain properties.--This Act shall not
apply to--
(i) ...
(ii) any estate which descends to a single heir by the terms of
any covenant or agreement entered into by the Ruler of any
Indian State with the Government of India or by the terms of
any enactment passed before the commencement of this Act;
(iii) ..."
78. The aforesaid Section 5 (ii) of the Hindu Succession Act
specifically excludes the application of the Act to the estates which
descend to a single heir of a Ruler under the terms of the covenant
or agreement of merger with the Government of India. However,
the aforesaid provision was not in force at the relevant time when
the properties in question devolved upon Maharaja Paramjit Singh
in 1949. At that point, the succession opened under the ordinary
law in force. Therefore, the consequent devolvement of the
personal private properties of the Maharaja would also be viewed
through the lens of the personal law applicable to the parties at
that time.
79. In Trijugi Narain (supra), this Court relied upon Bhaiya
Ramanuj Pratap Deo (supra), which only observed that Section 5
(ii) of the Hindu Succession Act protects an estate which descends
to a single heir by the terms of any covenant and that the Hindu
Succession Act would not be applicable to such estates. However,
interestingly, in the case at hand, the estate/the private properties
declared by the Ruler devolved upon the single heir, Maharaja
Paramjit Singh, on 19.06.1949 immediately after the merger
agreement. At that time, the Hindu Succession Act was not in force.
The said Act was enforced with effect from 17.06.1956, and by that
time, the properties had already acquired the status of private
property of the then Ruler, Maharaja Paramjit Singh, in his capacity
as an ordinary citizen, due to the signing of the merger agreement.
Accordingly, the Hindu Succession Act or Section 5(ii) of the Act,
which exempts estates descending to a single heir under a
covenant, is not applicable here. The said properties/estate did not
constitute the Ruler's estate, as the merger covenant guaranteed
such custom only for the Gaddi (throne), not for private property.
As the private properties of an ordinary citizen, they were required
to devolve according to the ordinary personal law then in force,
namely, the Hindu Mitakshara Law.
80. In view of the above discussion that the properties declared to
be the private properties of the Maharaja would devolve according
to Hindu Law/Law of Succession and not by rule of primogeniture,
the judgment and order of the learned Single Judge as well as of
the Division Bench of the High Court which holds that the rule of
primogeniture would prevail in the succession of properties is illegal
and is unsustainable in law.
94. On the basis of the above discussion, our conclusions are
summarized as under:--
- 43 -
(i) There is a general presumption in India that the estate of the
Ruler and monarch of a princely state, as per the custom, stands
governed by the rule of male lineal primogeniture;
(ii) After the signing of the agreement of merger and notification of
certain properties as the personal private properties of
the Maharaja, only the perceived throne devolved according to the
rule of primogeniture, but not the personal private properties of the
Ruler;
(iii) Following the lapse of the British paramountcy and the signing
of the agreement of merger, the Maharaja assumed the status of
the Ruler only for the namesake to succeed to the Gaddi and to
enjoy certain privileges attached to it, the personal private
properties declared to be so by him would devolve upon his
successors in accordance with the Muslim/Hindu Law or
subsequently in accordance with the Hindu Succession Act and not
by the rule of primogeniture;
(iv) The Division Bench decision in Trijugi Narain (supra) would not
override the ratio laid down by the three-Judges Bench in the cases
of Travancore, Talat Fatima Hasan (Rampur) (supra) and Faridkot.
The Three-Judge Bench decision in the Faridkot case, being the
latest in time, may be without referring to Trijugi Narain (supra),
the ratio laid down therein would prevail and thus the properties
declared to be the personal private properties of the Ruler would
devolve not according to the rule of primogeniture but according to
the personal law, whether Muslim Law or Hindu Law;
(v) Finally, of the four immovable properties, three, as stated
earlier, are in the joint names of the family members. Therefore,
irrespective of the applicability of the rule of primogeniture or the
Hindu law, they are liable to division between the joint holders; and
(vi) Lastly, the only immovable property which remains is the
property at Mussoorie, i.e., Kapurthala Chateau, and St. Helens,
Mussoorie would devolve upon the successors under Hindu Law and
are divisible amongst the family members.''
48. Contents of the agreements at Annexures-D and F as
already noted above, read in the light of the enunciation
of law by the Apex Court in the cases of TALAT
FATHIMA HASAN supra, MAHARANI DEEPINDER
KAUR supra, and TIKKA SHATRUJIT SINGH supra,
clarifies the position that as regards succession to
impartible estate as that of Gaddi , which though
- 44 -
presently carries only cultural and ceremonial
significance, has to be in terms of the covenant
guaranteed under law and customs. Meaning thereby,
the "impartible estate" would devolve and succeed in
terms of provisions of Section 5(ii) of the Act, 1956
however subject to proof and pleading of customs and
practices to the contrary if any.
49. The controversy as to whether Section 5(ii) of the Act,
1956 has become otiose or redundant merely because
deletion of Articles 291 and 362 or introduction of Article
363-A of the Constitution of India by way of 26th
amendment or it has its own independent existence in the
light of agreements and covenants can also be well
understood by the observation of the Apex Court at
paragraph Nos.58 and 59 of its judgment in the case of
RAGHUNATH RAO supra, which read as under:
''58. The question whether Article 291 is a provision related
to the Covenants and Agreements entered into between the
Rulers of the States and Indian Dominion and is that in reality
and substance a provision on the subject-matter of covenants
and agreements were considered by Hidayatullah, C.J. in his
separate concurring judgment in Madhav Rao [(1971) 1 SCC 85
: (1971) 3 SCR 9] and they are answered in the following
terms: (SCC p. 141, para 76)
"The article when carefully analysed leads to these
conclusions: The main and only purpose of the
provision is to charge Privy Purses on the
Consolidated Fund of India and make obligatory their
payment free of taxes on income. It narrows the
- 45 -
guarantee of the Dominion Government from freedom
from all taxes, to freedom only from taxes on income.
Earlier I had occasion to show that the Princes had
guaranteed to themselves their Privy Purses free of all
taxes. The Dominion Government had guaranteed or
assured the same freedom. The Constitution limits the
freedom to taxes on income and creates a charge on
the Consolidated Fund. There were other guarantees
as in the Merger Agreements of Bilaspur and Bhopal
(quoted earlier) which are ignored by the article. The
guarantee of the Dominion Government is thus
continued in a modified form. The reference to
Covenants and Agreements is casual and
subsidiary. The immediate and dominant purpose of
the provision is to ensure payment of Privy Purse s, to
charge them on the Consolidated Fund and to make
them free of taxes on income."
(original emphasis)
59. Shah, J. speaking for the majority with reference to
the covenants and agreements made the following
observation:
"After the Constitution the obligation to pay the Privy
Purse rested upon the Union of India, not because it
was inherited from the Dominion of India; but
because of the constitutional mandate under Article
291. The source of the obligation was in Article
291, and not in the covenants and the
agreements."
(original emphasis)'
50. Thus, the aforesaid observation of the Apex Court further
makes it clear that deletion of Articles 291 and 362 and
insertion of Article 363-A to the Constitution of India have
no bearing on the covenants and terms of the
instruments of merger more particularly with regard to
succession to ''private properties'' and "Gaddi ".
Regarding Point No.(2):
(2) Whether with the passage of time provisions of Section
5(ii) of the Act, 1956 has become arbitrary, discriminatory,
irrational and therefore unconstitutional?
- 46 -
51. Petitioners have not raised the ground on legislative
competence but have raised the grounds of arbitrariness,
discrimination and irrationality. The contentions of the
learned counsel for the petitioners in this regard are that
Section 5(ii) of the Act, 1956 has lost its relevancy with
passage of time and it has no nexus with the object which
was initially sought to be achieved. Since, the private
properties of the Rulers which are now family properties
amenable for partition, all the descendants of the Rulers
being entitled for their share, there cannot be any
discrimination in distribution of the same. Even for the
purpose of symbolic throne which is referred to as Gaddi
there cannot be any separate classification as the very
concept of Gaddi has lost its meaning and purport. Thus,
retaining Section 5(ii) of the Act, 1956 in the statute
would amount to maintaining and continuing an invalid
and discriminatory provision providing for arbitrary
classification, contrary to the provisions of Article 14 of
the Constitution of India. Reference in this regard is made
to paragraph Nos.17, 18 and 30 of the judgment of the
Hon'ble Apex Court in the case of MOTOR GENERAL
TRADERS AND ANR Vs STATE OF ANDHRA PRADESH
- 47 -
AND OTHERS reported in (1984) 1 SCC 222. In the
said case, the Hon'ble Apex Court was dealing with
constitutional validity of certain provisions of Andhra
Pradesh Buildings (Lease, Rent and Eviction) Control Act,
1960 (Act, 15 of 1960), which exempts all buildings
constructed on and after August, 25th, 1957 from the
operation of the said Act. In view of reorganization of
State, certain parts of erstwhile State of Madras, became
part of State of Andhra Pradesh. However, the Madras
Buildings (Lease and Rent Control) Act, 1949 (Madras
Act, 25 of 1949), continued to be in operation in the State
of Andhra Pradesh. It is in this factual background, the
Hon'ble Apex Court has held as under:
'' A piece of legislation which was justified at the time
of its entry into the statute book may become arbitrary
and discriminatory with the passage of time and
change of circumstances, and must be struck down if it
fails to satisfy the requirements of Article 14 in the
altered context.''
52. Petitioners have also relied upon the paragraph Nos. 16,
17, 34 and 35, of the judgment of the Apex Court in the
case of SATYAWATI SHARMA Vs UNION OF INDIA
reported in (2008) 5 SCC 287 in support of their
contention that, legislation subsequently loosing rationale
- 48 -
of classification on the basis of which it was enacted and
thereby becoming arbitrary and unreasonable with lapse
of time and changed circumstances. Facts involved in the
said matter was with regard to interpretation of rent
control legislation, interpretation of which in most of the
judgments of the years 1950's to 1990's by the Apex
Court and the High Courts had indicated object of such
legislation to provide safeguards for the tenants against
the exploitation by the landlords. It is under these
circumstances at paragraph Nos.16 and 32, the Hon'ble
Apex Court has held as under:
16. Article 14 declares that the State shall not deny to
any person equality before the law or the equal
protection of the laws. The concept of equality embodied
in Article 14 is also described as doctrine of equality.
Broadly speaking, the doctrine of equality means that
there should be no discrimination between one person
and another, if having regard to the subject-matter of
legislation, their position is the same. The plain language
of Article 14 may suggest that all are equal before the
law and the State cannot discriminate between similarly
situated persons. However, application of the doctrine of
equality embodied in that Article has not been that
simple. The debate which started in 1950s on the true
scope of equality clause is still continuing. In last 58
years, the courts have been repeatedly called upon to
adjudicate on the constitutionality of various legislative
instruments including those meant for giving effect to
the directive principles of State policy on the ground that
same violate the equality clause. It has been the
constant refrain of the courts that Article 14 does not
prohibit the legislature from classifying apparently
similarly situated persons, things or goods into different
groups provided that there is rational basis for doing so.
The theory of reasonable classification has been invoked
in large number of cases for repelling challenge to the
constitutionality of different legislations.
- 49 -
32. It is trite to say that legislation which may be quite
reasonable and rational at the time of its enactment may
with the lapse of time and/or due to change of
circumstances become arbitrary, unreasonable and
violative of the doctrine of equality and even if the
validity of such legislation may have been upheld at a
given point of time, the Court may, in subsequent
litigation, strike down the same if it is found that the
rationale of classification has become non-existent.''
53. As regards, classification test under Article 14 of the
Constitution of India, learned counsel for the petitioners
have relied upon the paragraph Nos.3, 4, 12, 13, 14, 29,
30, 31, 44 and 45 of the judgment in the case of STATE
OF WEST BENGAL Vs ANWAR ALI SARKAR reported in
(1952) 1 SCC 1. Facts involved in said case are with
regard to constitutional validity of provisions of Section
5(i) of the West Bengal Special Courts Act, 1950 as well
as certain notification issued under it by reason of they
being in conflict with Article 14 of the Constitution of
India. The Special Bench of the High Court of Calcutta,
had held that Section 5(i) of the West Bengal Special
Courts Act, 1950 to be void to the extent it had
empowered the State to direct any case to be tried by the
Special Court. It also held that notifications issued under
said Sub-Section were also invalid for the same reason. It
- 50 -
was this order of the Special Court which was dealt with
by Seven Judges Bench of the Apex Court;
Hon'ble Sri.B.K. Mukherjee, J. delivering the judgment, at
paragraph No.18 held as under:
18. It has been observed in many cases by the Supreme
Court of America that the fact that some sort of classification
has been attempted at will not relieve a statute from the
reach of the equality clause.
"... it must appear that not only that a classification has been
made, but also that it is one based upon some reasonable
ground--some difference which bears a just and proper
relation to the attempted classification...." (Ellis case [Gulf,
Colorado & Santa Fe Railway Co. v. Ellis, 41 L Ed 666 : 165
US 150 (1897) : 1897 SCC OnLine US SC 20] , L Ed p. 672)
The question in each case would be : Whether the
characteristics of the class are such as to provide a rational
justification for the differences introduced? Judged by this
test, the answer in the present case should be in the negative
: for the difference in the treatment rests here solely on
arbitrary selection by the State Government. It is true that
the presumption should always be that the legislature
understands and correctly appreciates the needs of its own
people and that its discriminations are based on adequate
grounds. ''
Hon'ble Sri.Chandrashekar Ayer, J. (Concurring) at
paragraph 29 held as under:
29. It is well settled that equality before the law or the equal
protection of laws does not mean identity or abstract
symmetry of treatment. Distinctions have to be made for
different classes and groups of persons and a rational or
reasonable classification is permitted, as otherwise it would
be almost impossible to carry on the work of the
Government of any State or country.''
Hon'ble Sri.Vivan Bose, J. (Concurring) at paragraph
Nos.44 and 45, held as under:
44. Take first the words "equality before the law". It is to be
observed that equality in the abstract is not guaranteed but
only equality before the law. That at once leads to the
question, what is the law, and whether "the law" does not
draw distinctions between man and man and make for
- 51 -
inequalities in the sense of differentiation? One has only to
look to the differing personal laws which are applied daily to
see that it does; to trusts and foundations from which only
one particular race or community may benefit, to places of
worship from which all but members of particular faith are
excluded, to cemeteries and towers of silence which none but
the faithful may use, to the laws of property, marriage and
divorce. All that is part and parcel of the law of the land and
equality before it in any literal sense is impossible unless
these laws are swept away, but that is not what the
Constitution says, for these very laws are preserved and
along with equality before the law is also guaranteed the right
to the practice of one's faith.
45. Then, again, what does "equality" mean? All men are not
alike. Some are rich and some are poor. Some by the mere
accident of birth inherit riches, others are born to poverty.
There are differences in social standing and economic status.
High sounding phrases cannot alter such fundamental facts. It
is therefore impossible to apply rules of abstract equality to
conditions which predicate inequality from the start; and yet
the words have meaning though in my judgment their true
content is not to be gathered by simply taking the words in
one hand and a dictionary in the other, for the provisions of
the Constitution are not mathematical formulae which have
their essence in mere form. They constitute a framework of
the Government written for men of fundamentally differing
opinions and written as much for the future as the present.
They are not just pages from a textbook but form the means
of ordering the life of a progressive people. There is
consequently grave danger in endeavouring to confine them
in watertight compartments made up of readymade
generalisations like classification. I have no doubt those tests
serve as a rough and ready guide in some cases but they are
not the only tests, nor are they the true tests on a final
analysis.
54. Petitioners have also relied upon the paragraph Nos.11,
12 of SRI RAMAKRISHNA DALMIA Vs
S.R.TENDOULKAR AND OTHERS reported in 1958 SCC
Online SC 6 on the principles of test under Article 14 of
the Constitution of India. The question that fell for
consideration in the said case before 5 Judges Bench of
- 52 -
the Apex Court was validity of certain notifications that
had been issued by the Union of India in exercise of its
power conferred on it by Section 3 of Commission of
Enquiry Act, (60 X of 1952). The High Court of Bombay
had dismissed the challenge holding the notification as
legal and valid, except as to the last part of said
notification. The Apex Court relying upon its earlier
judgments rendered on the scope of Article 14 of
Constitution at paragraphs 11 and 12 held as under:
11..... ......The principle enunciated above has been consistently
adopted and applied in subsequent cases. The decisions of this
Court further establish--
(a) that a law may be constitutional even though it relates to a
single individual if, on account of some special circumstances or
reasons applicable to him and not applicable to others, that single
individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the
constitutionality of an enactment and the burden is upon him who
attacks it to show that there has been a clear transgression of the
constitutional principles;
(c) that it must be presumed that the legislature understands and
correctly appreciates the need of its own people, that its laws are
directed to problems made manifest by experience and that its
discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees of harm and
may confine its restrictions to those cases where the need is
deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality
the court may take into consideration matters of common
knowledge, matters of common report, the history of the times
and may assume every state of facts which can be conceived
existing at the time of legislation; and
(f) that while good faith and knowledge of the existing conditions
on the part of a legislature are to be presumed, if there is nothing
on the face of the law or the surrounding circumstances brought
to the notice of the court on which the classification may
reasonably be regarded as based, the presumption of
constitutionality cannot be carried to the extent of always holding
that there must be some undisclosed and un-known reasons for
subjecting certain individuals or corporations to hostile or
discriminating legislation.
- 53 -
The above principles will have to be constantly borne in mind by
the court when it is called upon to adjudge the constitutionality of
any particular law attacked as discriminatory and violative of the
equal protection of the laws.
12. A close perusal of the decisions of this Court in which the
above principles have been enunciated and applied by this Court will
also show that a statute which may come up for consideration on a
question of its validity under Article 14 of the Constitution, may be
placed in one or other of the following five classes:
(i) A statute may itself indicate the persons or things to whom its
provisions are intended to apply and the basis of the classification
of such persons or things may appear on the face of the statute or
may be gathered from the surrounding circumstances known to or
brought to the notice of the court. In determining the validity or
otherwise of such a statute the court has to examine whether such
classification is or can be reasonably regarded as based upon some
differentia which distinguishes such persons or things grouped
together from those left out of the group and whether such
differentia has a reasonable relation to the object sought to be
achieved by the statute, no matter whether the provisions of the
statute are intended to apply only to a particular person or thing or
only to a certain class of persons or things. Where the court finds
that the classification satisfies the tests, the court will uphold the
validity of the law, as it did in Chiranjitlal Chowdhri v. Union of
India [1950 SCC 833 : (1950) SCR 869] State of Bombay v. F.N.
Balsara [1951 SCC 860 : (1951) SCR 682] Kedar Nath
Bajoria v. State of West Bengal [(1953) 2 SCC 142 : (1954) SCR
30] , S.M. Syed Mohammad & Company v. State of Andhra [(1954)
SCR 1117] , and Budhan Choudhry v. State of Bihar [(1955) 1 SCR
1045] .
(ii) A statute may direct its provisions against one individual person
or thing or to several individual persons or things but no reasonable
basis of classification may appear on the face of it or be deducible
from the surrounding circumstances, or matters of common
knowledge. In such a case the court will strike down the law as an
instance of naked discrimination, as it did in Ameerunnissa
Begum v. Mahboob Begum [(1952) 2 SCC 697 : (1953) 1 SCC 274
: (1953) SCR 404] and Ramprasad Narain Sahi v. State of
Bihar [(1953) 1 SCC 274 : (1953) SCR 1129] .
(iii) A statute may not make any classification of the persons or
things for the purpose of applying its provisions but may leave it to
the discretion of the Government to select and classify persons or
things to whom its provisions are to apply. In determining the
question of the validity or otherwise of such a statute the court will
not strike down the law out of hand only because no classification
appears on its face or because a discretion is given to the
Government to make the selection or classification but will go on to
examine and ascertain if the statute has laid down any principle or
policy for the guidance of the exercise of discretion by the
Government in the matter of the selection or classification. After
such scrutiny the court will strike down the statute if it does not lay
down any principle or policy for guiding the exercise of discretion by
the Government in the matter of selection or classification, on the
ground that the statute provides for the delegation of arbitrary and
uncontrolled power to the Government so as to enable it to
discriminate between persons or things similarly situate and that,
- 54 -
therefore, the discrimination is inherent in the statute itself. In such
a case the court will strike down both the law as well as the
executive action taken under such law, as it did in State of West
Bengal v. Anwar Ali Sarkar [(1952) 1 SCC 1 : (1952) SCR
284] Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh [(1954)
SCR 803] and Dhirendra Krishna Mandal v. Superintendent and
Remembrancer of Legal Affairs [(1955) 1 SCR 224] .
(iv) A statute may not make a classification of the persons or things
for the purpose of applying its provisions and may leave it to the
discretion of the Government to select and classify the persons or
things to whom its provisions are to apply but may at the same
time lay down a policy or principle for the guidance of the exercise
of discretion by the Government in the matter of such selection or
classification, the court will uphold the law as constitutional, as it
did in Kathi Raning Rawat v. State of Saurashtra [(1952) 1 SCC 215
: (1952) SCR 435] .
(v) A statute may not make a classification of the persons or things
to whom their provisions are intended to apply and leave it to the
discretion of the Government to select or classify the persons or
things for applying those provisions according to the policy or the
principle laid down by the statute itself for guidance of the exercise
of discretion by the Government in the matter of such selection or
classification. If the Government in making the selection or
classification does not proceed on or follow such policy or principle,
it has been held by this Court e.g. in Kathi Raning Rawat v. State of
Saurashtra that in such a case the executive action but not the
statute should be condemned as unconstitutional.
55. On the contrary, learned counsel for the respondents
contended that constitutionality of any statute can be
tested on two grounds namely; (1) lack of legislative
competence; and (2) violation of any of the fundamental
rights guaranteed in Part III of the Constitution or of any
other constitutional provision.
56. The Hon'ble Apex Court in the case of McDOWELL AND
Company supra, at paragraph No.43 has held as under:
43. ........ A law made by Parliament or the legislature can be
struck down by courts on two grounds and two grounds alone,
viz., (1) lack of legislative competence and (2) violation of any of
the fundamental rights guaranteed in Part III of the Constitution
or of any other constitutional provision. There is no third ground.
- 55 -
We do not wish to enter into a discussion of the concepts of
procedural unreasonableness and substantive unreasonableness
-- concepts inspired by the decisions of United States Supreme
Court. Even in U.S.A., these concepts and in particular the
concept of substantive due process have proved to be of
unending controversy, the latest thinking tending towards a
severe curtailment of this ground (substantive due process). The
main criticism against the ground of substantive due process
being that it seeks to set up the courts as arbiters of the wisdom
of the legislature in enacting the particular piece of legislation. It
is enough for us to say that by whatever name it is characterised,
the ground of invalidation must fall within the four corners of the
two grounds mentioned above. In other words, say, if an
enactment is challenged as violative of Article 14, it can be struck
down only if it is found that it is violative of the equality
clause/equal protection clause enshrined therein. Similarly, if an
enactment is challenged as violative of any of the fundamental
rights guaranteed by sub-clauses (a) to (g) of Article 19(1), it can
be struck down only if it is found not saved by any of the clauses
(2) to (6) of Article 19 and so on. No enactment can be struck
down by just saying that it is arbitrary [ An expression used
widely and rather indiscriminately -- an expression of inherently
imprecise import. ......
57. Relevant also to refer to the Judgment of the Hon'ble
Apex Court in the case of SHAYARA BANO VS. UNION
OF INDIA reported in (2017) 9 SCC 1 wherein at
paragraph 101 it has held as under:
101. It will be noticed that a Constitution Bench of this
Court in Indian Express Newspapers (Bombay) (P)
Ltd. v. Union of India [Indian Express Newspapers
(Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 :
1985 SCC (Tax) 121] stated that it was settled law that
subordinate legislation can be challenged on any of the
grounds available for challenge against plenary
legislation. This being the case, there is no rational
distinction between the two types of legislation when it
comes to this ground of challenge under Article 14. The
test of manifest arbitrariness, therefore, as laid down in
the aforesaid judgments would apply to invalidate
legislation as well as subordinate legislation under Article
14. Manifest arbitrariness, therefore, must be something
done by the legislature capriciously, irrationally and/or
without adequate determining principle. Also, when
something is done which is excessive and
- 56 -
disproportionate, such legislation would be manifestly
arbitrary. We are, therefore, of the view that
arbitrariness in the sense of manifest arbitrariness as
pointed out by us above would apply to negate
legislation as well under Article 14.
58. Thus above enunciation of law on the test of Article 14
manifestly indicate that what is forbidden is "class
legislation" and not "reasonable classification" for the
purpose of legislation.
59. Factual background which led to entering into merger
agreements by the erstwhile Rulers of the Princely States
of India with the Dominion of India, resultant inclusion of
Articles 291 and 362 of the Constitution of India which
subsequently were deleted by 26th amendment to the
Constitution and its effect on provisions of Section 5(ii) of
the Act, 1956 have already been dealt with while
answering point No.1.
60. As held by the Apex Court in the case of RAMAKRISHNA
DALMIA supra, "a statute may itself indicate the persons
or things to whom its provisions are intended to apply
and the basis of the classification of such persons or
things may appear on the face of the statute or may be
- 57 -
gathered from the surrounding circumstances known to or
brought to the notice of the court".
61. Language employed in Section 5(ii) of the Act, 1956 clearly
indicate it is directed to a specific nature of `estate' of
specific class of `person' under `specific circumstance'
which is indeed an intelligible differentia. Petitioners have
not denied this aspect of the matter. In fact according to
the petitioners said provision when promulgated was valid
and relevant but has now lost its relevance by passage of
time. This contention cannot be countenanced.
Determination of issue with regard to succession to
private properties as well as to impartible estate is still a
relevant subject. It may be that purport and object of
Gaddi has lost its relevance but from the customary
practical perspective it is still a relevant subject.
62. Thus the petitioners have not made out a case that the
provisions of Section 5(ii) of the Act, 1956 having
become arbitrary, discriminatory, unreasonable and
loosing its rational classification with lapse of time.
Besides, reliance placed on by learned counsel for the
petitioners onto the Judgments referred to above in
- 58 -
support of this contention are of no avail under the fact
situation involved in the case at hand.
Regarding Point No.3
(3) Whether a direction is required to be issued to the
respondent-Union of India to delete Section 5(ii) of the Act,
1956 from the statute as sought for by the petitioners?
63. Settled principles of law, a party questioning the
constitutionality of a statute on the test of `equality' is
required to discharge the burden regarding violation of
his rights guaranteed under Article 14. In the light of
answer to point No.2 this Court is of the considered view
that the petitioners have not discharged their burden
proving any violation of Article 14 of the Constitution of
India by the legislature incorporating Section 5(ii) of the
Act, 1956.
64. As rightly pointed out by Sri.Vivek Holla, learned counsel
appearing for respondent No.2, the petitioners are
primarily required to show the adverse affect of Section
5(ii) of the Act, 1956. In the absence of the same and
more particularly when the petitioners have not raised the
issue of legislative competence and when they have
neither pleaded nor discharged the burden of violation of
- 59 -
their fundamental rights guaranteed by the Constitution
of India, which are the primary tests for examining the
constitutional validity of a statute, petitioners cannot seek
to annul a legislative provision.
65. Hon'ble Apex Court in the case of KUSUM INGOTS AND
ALLOYS LTD supra, at paragraph Nos.19, 20 and 21 has
held as under:
''19. Passing of a legislation by itself in our opinion does not confer
any such right to file a writ petition unless a cause of action arises
therefor.
20. A distinction between a legislation and executive action should be
borne in mind while determining the said question.
21. A parliamentary legislation when it receives the assent of the
President of India and is published in the Official Gazette, unless
specifically excluded, will apply to the entire territory of India. If
passing of a legislation gives rise to a cause of action, a writ petition
questioning the constitutionality thereof can be filed in any High Court
of the country. It is not so done because a cause of action will arise
only when the provisions of the Act or some of them which were
implemented shall give rise to civil or evil consequences to the
petitioner. A writ court, it is well settled, would not determine a
constitutional question in a vacuum.''
66. The Apex Court in the case of TIKKA SHATRUJIT SINGH
AND OTHERS supra, has clarified and concluded that
after the signing of the agreement of merger and
notification of certain properties as the personal private
properties of the Maharaja, only the perceived throne
would devolve according to the rule of primogeniture, and
not the personal private properties of the Ruler;
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67. In the that view of the matter apprehension of the
petitioners that Section 5(ii) of the Act, 1956 bars
application of provisions of Act, 1956 to the personal
private properties of the Ruler stands redressed.
However, party contending to the contrary shall discharge
the burden by particular pleading and proof to the
satisfaction of the court.
68. There is yet another aspect of the matter which requires
consideration in the light of submission made by learned
Senior counsel, Sri.Pramod Nair, and Sri. M. N. Kumar,
appearing for respondents insisted that in the light of
judgment of the Hon'ble Apex Court in the case of TIKKA
SHATRUJIT SINGH AND OTHERS supra, where the
Hon'ble Apex Court has adverted to the applicability of
Section 5 of the Act, 1956, the exercise of testing the
constitutionality of the provisions of Section 5(ii) of the
Act, 1956 from the anvil of arbitrariness and
discrimination is unwarranted.
69. In this regard appropriate therefore to refer to ''doctrine
of reading down'' of a legislative enactment. The purpose
and purport of this doctrine is to save a provision from
the vice of unconstitutionality. That the said doctrine
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refers to a legal interpretation, whereby the Court
examining the validity of a statute attempts to give a
narrow or restricted meaning to a particular provision in
order to uphold its constitutionality. Reference in this
regard can be made to the following judgment of the
Apex Court in the case of AUTHORIZED OFFICER,
CENTRAL BANK OF INDIA Vs. SHANMUGAVELU
reported in (2024) 6 SCC 641, wherein referring its
earlier Judgment on the doctrine at paragraph Nos.94 to
97 and 100 has held as under:
'' 94. The principle of "reading down" a provision refers to
a legal interpretation approach where a court, while
examining the validity of a statute, attempts to give a
narrowed or restricted meaning to a particular provision in
order to uphold its constitutionality. This principle is rooted
in the idea that courts should make every effort to
preserve the validity of legislation and should only declare
a law invalid as a last resort.
95. When a court encounters a provision that, if
interpreted according to its plain and literal meaning,
might lead to constitutional or legal issues, the court may
opt to read down the provision. Reading down involves
construing the language of the provision in a manner that
limits its scope or application, making it consistent with
constitutional or legal principles.
96. The rationale behind the principle of reading down is
to avoid striking down an entire legislation. Courts
generally prefer to preserve the intent of the legislature
and the overall validity of a law by adopting an
interpretation that addresses the specific constitutional
concerns without invalidating the entire statute.
97. It is a judicial tool used to salvage the constitutionality
of a statute by giving a provision a narrowed or limited
interpretation, thereby mitigating potential conflicts with
constitutional or legal principles.
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100. Thus, the principle of "Reading Down" a provision
emanates from a very well-settled canon of law, that is,
the courts while examining the validity of a particular
statute should always endeavour towards upholding its
validity, and striking down a legislation should always be
the last resort. "Reading Down" a provision is one of the
many methods, the court may turn to when it finds that a
particular provision if for its plain meaning cannot be saved
from invalidation and so by restricting or reading it down,
the court makes it workable so as to salvage and save the
provision from invalidation. Rule of "Reading Down" is only
for the limited purpose of making a provision workable and
its objective achievable.''
70. Facts of the case at hand viewed even in the light of
principle of "reading down" do not persuade this Court to
undertake the exercise of testing the said provision from
the lens of arbitrariness, discrimination, irrationality and
unreasonableness.
71. Suffice to state, relevancy and efficacy of the provisions
of Section 5(ii) of the Act, 1956 have been adverted to
and dealt with by the Hon'ble Apex Court in the judgment
of the TIKKA SHATRUJIT SINGH AND OTHERS supra.
Thus, unless the petitioners expressly demonstrate that
the existence of the said provision in the Statute would
adversely affect their statutory or their fundamental
rights, this Court do not deem it appropriate to issue a
declaration as sought for.
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72. Conclusion:
For the aforesaid reasons and analysis, the points raised
above are answered as under:
(a) Instruments of Merger at Annexures-D and F
specifically deal with three aspects of the matter namely;
(1) Privy Purse, personal rights,
privileges, dignities and titles of the
Ruler;
(2) Private properties (as distinct from
state properties) belonging to the
Ruler;
(3) Succession to Gaddi according to law
and custom.
(b) Articles 291 and 362 were only with respect to
guarantees and assurances made by the Dominion of
India with regard to payment of Privy Purse, personal
rights, privileges, dignities and titles of erstwhile Rulers of
Princely States of India and not with respect to their
personal private properties and "Gaddi", impartible
estate;
(c) Deletion of Articles 291 and 362 and insertion of
Article 363-A by 26th amendment to the Constitution has
no bearing on the validity or otherwise of Section 5(ii) of
the Act, 1956.
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(d) Legal recognition of "sovereign authority" which was
attached to a "Gaddi " or "throne" of erstwhile Ruler has
been completely derecognized and abolished by 26th
amendment to the Constitution, rendering it to be a mere
reference to "Physical throne" or "Seat" which now carries
only a historical and cultural relevance of an artifact or
heirloom.
(e) the provisions of Section 5(ii) of the Act, 1956 will
have its relevance to the extent of providing rules of
succession to an 'impartible estate", to be according to
law and custom in view of covenants contained in
instruments of merger at Article IV of Annexure-D and
Article 5 of Annexure-F.
(f) Apprehension of the petitioners regarding provisions
of Section 5(ii) of the Act, 1956 being arbitrary,
discriminatory and unreasonable stands redressed in the
light of clarification by the Apex Court in its judgment in
the case of TIKKA SHATRUJIT SINGH AND OTHERS
supra, to the effect that the personal private properties of
the Ruler will be governed in terms of the personal law of
the parties and impartible estate as that of perceived
throne would devolve according to the rule
of primogeniture. Party contending to the contrary is
required to plead and prove to the satisfaction of the
Court.
(f) No sufficient grounds are made out to declare
Section 5(ii) of the Act, 1956 to be otiose or redundant
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warranting issuance of direction to delete the said
provision from the statute as sought for.
Consequently, the following:
ORDER
(i) Writ Petitions are dismissed.
(ii) No order as to costs.
SPONSORED
SD/-
(M.G.S. KAMAL)
JUDGE
Assistance rendered by Ms.Rao Shivani Dinesh and
Ms.Sania Niyaz Research Assistants, is appreciated and placed
on record.
RL
