Talat Fatima Hasan Through Her Constituted Attorney Sh. Syed Mehdi Husain Vs Nawab Syed Murtaza Ali Khan (d) By Lrs

31 July 2019
Supreme Court
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TALAT FATIMA HASAN THROUGH HER CONSTITUTED ATTORNEY SH. SYED MEHDI HUSAIN Vs NAWAB SYED MURTAZA ALI KHAN (D) BY LRS

Bench: HON'BLE THE CHIEF JUSTICE, HON'BLE MR. JUSTICE DEEPAK GUPTA, HON'BLE MR. JUSTICE ANIRUDDHA BOSE
Judgment by: HON'BLE MR. JUSTICE DEEPAK GUPTA
Case number: C.A. No.-001773-001773 / 2002
Diary number: 63300 / 2002
Advocates: PARIJAT SINHA Vs RANBIR SINGH YADAV

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1773 OF 2002

TALAT FATIMA HASAN THROUGH HER CONSTITUTED ATTORNEY SH. SYED MEHDI HUSAIN …APPELLANT(S)

Versus

NAWAB SYED MURTAZA ALI KHAN (D) BY LRS. & ORS. …RESPONDENT(S)

WITH

CIVIL APPEAL NO. 4012 OF 2002

CONTEMPT PETITION (CIVIL) NO. 1079 OF 2018 IN

CIVIL APPEAL NO. 1773 OF 2002

J U D G M E N T

Deepak Gupta, J.

1. “Whether succession to the properties declared by an

erstwhile ruler to be his private properties in the agreement of

accession with the Dominion of India will be governed by the

rule of succession applicable to the “Gaddi” (rulership) or by

the personal law applicable to the ruler”, is the question for

consideration in the present appeals.

2. The British Government decided to withdraw from the

Indian subcontinent and the plan in this regard was published

on 03.06.1947 which envisaged the formation of two countries,

India and Pakistan. As per the Indian Independence Act, 1947

two independent Dominions – India and Pakistan were created.

The ruling princes had the right to decide to which Dominion,

India or Pakistan, they were to cede to. Section 6 of the

Government of India Act, 1935 provided that an instrument of

accession was to be executed by the ruler of the State. Various

rulers signed instruments of accession on various dates. Some

immediately on 15.08.1947 and some much later. Some rulers

voluntarily ceded their territories to the Indian Union and some

had to be cajoled to do so. In the various talks held by the

Indian Government and the princely States it was decided to

give some privileges and perquisites to the rulers. The

privileges which were to be granted to the rulers included

exemption from the operation of certain laws, the enjoyment of

Jagirs and personal properties of the rulers, and members of

their families, the payment by the States of the marriage

expenses of the brothers and sisters of the rulers, immunity

from some processes of courts of law, distinctive number

plates, gun salutes, etc.

3. Nawab Raza Ali Khan was the ruler of Rampur. The

State of Rampur merged into the Union of India. Merger

Agreement was signed by the Nawab on 15.05.1949. As per the

terms of merger agreement, the Nawab was entitled to full

ownership, use and enjoyment of all private properties (as

distinguished from State properties) belonging to him and he

was required to furnish to the Dominion Government an

inventory of such immovable properties etc. The Nawab vide

orders (robkars) dated 31.05.1949 and 27.06.1949 declared a

number of properties to be his personal properties. In terms of

the merger agreement, Rampur ceded to the Dominion of India

on 01.07.1949 and became a centrally administered Chief

Commissioner’s Province. Nawab Raza Ali Khan was declared

to be a ruler in terms of clause (22) of Article 366 of the

Constitution of India, 1950. He expired on 06.03.1966. It is

not disputed that Nawab Raza Ali Khan died intestate.

4. The relevant provisions of the instrument of accession

executed on 15.05.1949 between the Governor General of India

and the Nawab of Rampur read as follows:

“ARTICLE 2

The Nawab shall continue to enjoy the same personal rights, privileges, immunities, dignities and titles which he would have enjoyed had this agreement not been made.

xxx xxx xxx

ARTICLE 4

The Nawab 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.

The Nawab will furnish to the Dominion Government before the 30th June 1949 an inventory of all the immovable property, securities and cash balances held by him as such private property.

If any dispute arises as to whether any item of property is the private property of the Nawab or State property, it shall be referred to a judicial officer nominated by the Government of India and the decision of that officer shall be final and binding on both parties.

xxx xxx xxx

ARTICLE 6

The Dominion Government guarantees the succession according to law and custom to the gaddi of the State and to Nawab’s personal rights, privileges, immunities, dignities and titles.”

5. It may also be pertinent to mention that as per Article

1, the Nawab ceded full executive authority, jurisdiction and

powers for and in relation to the governance of the State of

Rampur and transferred all his powers to the Dominion

Government with effect from 01.07.1949. Article 3 entitled the

Nawab to receive a privy purse of Rs.7,00,000/ free from

taxes. Under Article 5 all members of the Nawab’s family were

entitled to privileges, dignities and titles as they enjoyed before

15.08.1947. Articles 8 and 9 are not relevant for the purpose

of deciding this case.

6. It would also be pertinent to mention that after the

instrument of merger was executed, the Constitution of India

was adopted on 26.11.1949 and came into force on

26.01.1950. Article 291 of the Constitution of India, as it stood

at the relevant time, provided that the ruler of an Indian State

would be entitled to privy purse sums as assured by the

Government of the Dominion of India. Article 362 provided

that whenever Parliament or Legislature in exercise of their

power make laws or where the Union or States exercise the

executive power, due regard would be had to the guarantees or

assurances given under any such covenant or agreement,

which the ruler had entered into with Dominion of India in

respect to the personal rights, privileges and dignities of the

ruler of an Indian State. Article 363 barred the jurisdiction of

the Courts to entertain disputes arising out of such treaties,

agreements, covenants, etc. entered into or executed before the

commencement of the Constitution by any ruler of an Indian

State to which the Government of the Dominion of India or any

of its predecessor government was a party. In clause (22) of

Article 366, Ruler was defined as follows:

“366. Definitions. In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say

(1) xxx xxx xxx

(2) xxx xxx xxx

(3) xxx xxx xxx

(22) “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;”

7. After the death of Nawab Raza Ali Khan, the President

of India in terms of clause (22) of Article 366 recognised his

eldest son Nawab Syed Murtaza Ali Khan, defendant no. 1

(since deceased) to be the ruler. None of the other parties

challenged this declaration recognising defendant no.1 to be

the ruler. On 01.04.1966 a certificate was issued in which

defendant no. 1 was not only recognised as ruler of Rampur

but it was also certified that he was the sole successor to all

private properties – movable and immovable – held by Late

Nawab Raza Ali Khan. The certificate was challenged by Syed

Zulfiquar Ali Khan, defendant no. 3 (since deceased), the

second son of Nawab Raza Ali Khan, by filing a writ petition

before the High Court of Delhi. Three other similar petitions

were filed by the daughters of Nawab Raza Ali Khan. The High

Court of Delhi quashed the certificate vide judgment dated

18.12.1969. The defendant no. 1 challenged the said judgment

in this Court.

8. After the decision of the Delhi High Court dated

18.12.1969, the plaintiff who is the granddaughter of Nawab

Raza Ali Khan filed a suit for partition, accounts, mesne profits

in respect to the suit properties left by Nawab Raza Ali Khan.

On 28.12.1971, by the 26th Constitution amendment, the

Constitution of India was amended. Articles 291 and 362 were

repealed. Article 363A was added and the definition of ruler in

clause (22) of Article 366 was amended. In view of the

amendments so made, the plaintiff on 07.01.1972 withdrew the

suit filed in the year 1970 with liberty to file a fresh suit and, in

fact, filed a fresh suit on the same date. This suit was filed

before the District Judge, Rampur and the present proceedings

arise out of the said suit. It would also be pertinent to mention

that both in the suit filed in the year 1970 and in the suit filed

in the year 1972, the District Judge, Rampur had ordered that

the defendant no. 1 would not transfer or otherwise dispose of

the properties till further orders of the court.

9. This Court, in the appeal filed by the defendant No. 1

against the judgment of the Delhi High Court, declined to

interfere with the order quashing the certificate due to the

pendency of civil litigation between the parties for the same

property. It further directed that the certificate which had been

quashed would not be set up by either party in support of the

claim of the plaintiff or the defendants in the suit which had

been filed in the meantime. Therefore, this certificate cannot

be taken into consideration while deciding these proceedings.

10. In January 1995, the said suit being O.S. No. 4 of

1972 was withdrawn by the High Court of Allahabad and tried

by itself. The learned Single Judge dismissed the suit on

31.07.1996. An appeal therefrom was heard by a Division

Bench of the Allahabad High Court which vide two separate

concurring judgments dismissed the appeal. Hence, the

present appeals.

11. From a perusal of the pleadings before the Trial Court,

it is apparent that the case of the plaintiff was that the

properties declared by Nawab Raza Ali Khan to be his private

properties in terms of the merger agreement were his private

properties and all legal heirs were entitled to a share in the

property as per personal law. The plaintiff also asserted that

the Muslim Personal Law (Shariat) Application Act, 1937 was

extended to the State of Rampur on 01.01.1950 and after

ceding the property to the Dominion of India and especially

after the enforcement of the Constitution of India, Nawab Raza

Ali Khan was a ruler only for the purposes of enjoying the privy

purse and some personal rights, privileges, immunities,

dignities and titles, but for all other purposes including

succession, he was an ordinary citizen of the country. On the

other hand, the case of the defendants was that the property

was not, strictly speaking, the personal property of the Nawab.

According to the contesting defendants, the property was

attached to the ‘Gaddi’ of the State of Rampur and, therefore, it

was governed by the law of succession which was admittedly

applicable to the rulership of Rampur which was the rule of

male lineal primogeniture which basically means that the

senior most male heir takes everything to the exclusion of all

other heirs. It was also urged that the property was an

impartible estate and, therefore, the rule of primogeniture

would govern the same.

12. The facts are not in dispute. It is also not disputed

that the Muslim Personal Law (Shariat) Application Act, 1937

was applicable to the State of Rampur. The only issue to be

decided is whether the properties held by Nawab Raza Ali Khan

would devolve on his eldest son by applying the rule of

primogeniture or would be governed by Muslim Personal Law

(Shariat) Application Act, 1937 and devolve on all his legal

heirs.

13. Mr. Sudhir Chandra, learned senior counsel appearing

on behalf of the original plaintiff submits that the High Court

erred in coming to the conclusion that the personal law was

not applicable and the property of the Nawab had to be

governed by the rule of primogeniture, in view of the fact that

he was a ruler recognised by the Constitution. In support of

his contention, Mr. Chandra relied upon various judgments, on

the interpretation of the merger agreement and also on the

various provisions of the Constitution.

14. The first Constitution Bench judgment relied upon by

Mr. Chandra is Visweshwar Rao v. The State of Madhya

Pradesh1. In that case, some portion of the properties

belonging to the ruler and declared as private properties in the

covenant of merger were sought to be taken over by the State

under the Central Provinces & Berar Abolition of Proprietary

Rights (Estates, Mahals, Alienated Lands) Bill, 1949. One of

the challenges was that the property of the Maharaja declared

to be his private property could not be taken over by the State

as it contravened the provision of Article 362 of the

1 [1952] S.C.R. 1020

Constitution. Justice M.C. Mahajan, dealing with the said

contention held as follows:

“It is true that by the covenant of merger the properties of the petitioner became his private properties as distinguished from properties of the State but in respect of them he is in no better position than any other owner possessing private property. Article 362 does not prohibit the acquisition of properties declared as private properties by the covenant of merger and does not guarantee their perpetual existence. The guarantee contained in the article is of a limited extent only. It assures that the Rulers’ properties declared as their private properties will not be claimed as State properties. The guarantee has no greater scope than this. That guarantee has been fully respected by the impugned statue, as it treats those properties as their private properties and seeks to acquire them on that assumption……….”

Justice Das in his concurring judgment held as

follows:

“The guarantee or assurance to which due regard is to be had is limited to personal rights, privileges and dignities of the Ruler qua a Ruler. It does not extend to personal property which is different from personal rights.”

15. The next judgment relied upon is Sudhansu Shekhar

Singh Deo v. State of Orissa2. The facts of this case were

that the ruler of the erstwhile State of Sonepur, executed a

merger agreement with the Dominion of India, the terms of

which were identical to the Rampur merger agreement.

Agricultural income in the State of Orissa was subjected to

2 (1961) 1 SCR 779

taxation under the provisions of the Orissa Agricultural Income

Tax Act, 1947. The ruler of Sonepur filed a petition and

contended that as ruler of the State, before merger of the State,

he was immune from liability of taxation in respect of his

private properties both within his territory and outside. It was

claimed that as far as the properties within his State were

concerned, he being the Sovereign was not liable to pay any tax

and as far as the properties outside the State were concerned,

he was not liable to pay tax in view of the provisions of the

International Law. According to him, since his privileges and

immunities were protected by the merger agreement, he could

not be asked to pay tax. Repelling his contention, the

Constitution Bench of this Court held as follows:

“…..The privileges guaranteed by Arts. 4 and 5 are personal privileges of the appellant as an exRuler and those privileges do not extend to his personal property……”

16. Mr. Sudhir Chandra, learned senior counsel for the

appellant placed strong reliance on the judgment of this Court

in K. S. V. R. Singh v. Union of India & Ors.3, hereinafter

referred to as ‘the Dholpur case’. The facts were that when the

Dholpur State merged in the Union of India, Maharaja 3 (1969) 3 SCC 150

Udaibhan Singh was the recognised ruler of the State. He

executed the covenant of merger and there was a provision in

the covenant permitting him to declare his private properties

and to enjoy them as his private properties. Raja Udaibhan

Singh died on 22.10.1954. He did not leave behind him any

direct male heir. He left behind a widow and a daughter who

was married to the Maharaja of Nabha. His widow adopted his

grandson i.e. daughter’s son who was declared to be the

successor of the Maharaja. On the other hand, the petitioners

claimed that they were the sons of the younger brother of the

Maharaja and, thus, entitled to inherit his property by applying

the rule of male lineal primogeniture. The dispute, as to who

should be declared to be the ruler of Dholpur, was referred to a

Committee headed by the then Chief Justice of the Rajasthan

High Court (Hon’ble Mr. Justice K. N. Wanchoo). This

Committee recommended that the adopted son of the widow of

late ruler, Maharaja Rana Shri Hemant Singh be declared as

the ruler of Dholpur. This recommendation was accepted by

the Union Government and the President of India, in terms of

clause (22) of Article 366, declared Maharaja Rana Shri

Hemant Singh as the ruler of Dholpur.

17. Thereafter, the nephews of the late ruler filed a petition

in which it was urged that the estate left behind by Rana

Udaibhan Singh, the ruler of Dholpur was an impartible estate

and was to be governed by the rule of male lineal

primogeniture. It was contended that as per the terms of the

merger agreement, the Dominion Government had guaranteed

succession according to the law of succession of the ‘Gaddi’ of

the State and, therefore, the petitioners were entitled to be

declared rulers and also entitled to the property. The

Constitution Bench held as follows:

“6.…..It is manifest that the right to private properties of the last Ruler depends upon the personal law of succession to the said private properties. The recognition of the Ruler is a right to succeed to the gaddi of the Ruler. This recognition of Rulership by the President is an exercise of political power vested in the President and is thus an instance of purely executive jurisdiction of the President. The act of recognition of Rulership is not, as far as the President is concerned, associated with any act of recognition of right to private properties……”

The Court also held as follows:

“9. The recognition of Rulership is one of personal status. It cannot be said that claim to recognition of Rulership is either purely a matter of inheritance or a matter of descent by devolution. Nor can claim to recognition of Rulership be based only on covenants and treaties. That is why Article 363 of the Constitution constitutes a bar to interference by Courts in a dispute arising out of treaties and agreements. No claim to recognition of Rulership by virtue of a Covenant is justiciable in a Court of law. The Constitution, therefore, provided for the

act of recognition of the Rulership by the President as a political power.

10. It has to be recognised that the right to private properties of the Ruler is not embraced within clause (22) of Article 366 of the Constitution which speaks of recognition of a Ruler by the President.

11. Counsel on behalf of the petitioner contended that the recognition of a Ruler itself instantaneously invested the Ruler with property and that Rulership and property were blended together. An illustration of combination of office and property in the case of Mathadhapati was cited as an analogy. The property is an appendage to the office in the case of Maths. The example of the office of a trustee furnishes the answer where office and properties are vested in the trustee. It cannot be said that recognition of Rulership is bound up with recognition of private properties of the Ruler because the former is within the political power of the President and the latter is governed by the personal law of succession. Recognition of Rulership by the President is not recognising any right to private properties of the Ruler because recognition of Rulership is an exercise of the political power of the President. The distinction between recognition of Rulership and succession to private properties of the Ruler has to be kept in the forefront. The rights to private properties of Rulers are not the matters of recognition of Rulership. The recognition of Rulership is not an indicia of property but it entitles the Ruler to the enjoyment of the Privy Purse contemplated in Article 291 and the personal rights, privileges and dignities of the Ruler of an Indian State mentioned in Article 362 of the Constitution. Therefore, recognition of Rulership is not a deprivation of right to property. If the petitioner has any claim to any private property said to belong to the last Ruler, the petitioner has not established any such claim in any court of law. It was said on behalf of the petitioner that the Ruler after recognition by the President came to possess private properties said to belong to the last Ruler. If the petitioner has any competing rights with the Ruler in relation to such private properties such a claim is neither a fundamental right nor is it comprised in the act of recognition of a Ruler by the President.”

18. A decision of threeJudge Bench of this Court in the

case of Revathinnal B. Varma v. H. H. Padmanabha Dasa4,

hereinafter referred to as ‘the Travancore case’, has been relied

upon by both the sides. The facts of this case are that Shri

Padmanabha Dasa Bala Rama Verma was the Maharaja of

Travancore and the sovereign ruler thereof. The State of

Travancore merged with the erstwhile Cochin State and became

a part of the territory of the Dominion of India w.e.f.

01.07.1949. A covenant was entered into by the Maharaja with

the Union of India, the terms of which are similar and the

properties which were subject matter of the dispute were

declared to be the private properties of the Maharaja. A suit

was filed by Revathinnal Balagopala Varma, one of the family

members of the Maharaja in which it was claimed that the

Maharaja was not the sole owner of these properties even

though they were declared to be the private properties of the

ruler. It was urged that the ruler held these properties as

Karnavan of an undivided marumakkathayam tarwad or a

sthanee of an impartible estate. The argument raised was that

the properties comprised an impartible estate. Though

4 (1993) Supp. 1 SCC 233

succession to the estate was earlier governed by the rule of

primogeniture, in view of the fact that the Maharaja had ceased

to be the ruler on 01.07.1949, the properties became properties

of the family or tarwad to which the ruler belonged and,

therefore, the impartible estate became a partible estate when

the Hindu Succession Act, 1956 came into force on

17.06.1956.

19. It was not disputed that as far as the position before

accession was concerned the properties devolved from ruler to

ruler by applying the rule of primogeniture. This Court

negated the argument holding that after signing of the merger

agreement, the properties became the private properties of the

Maharaja and did not belong to an undivided family. It was

held that when the Maharaja was the sovereign of the State of

Travancore, he could exercise his sovereign rights of ownership

on all the properties and there was no distinction between

private properties and properties of the State. No distinction

could be drawn between private properties and properties of

the State on the principle that a sovereign never dies and the

succession to the next ruler takes place without there being a

hiatus. However, keeping in view the fact that the Maharaja

had declared the properties in dispute to be his private

properties, the claim of the plaintiffs that the suit property was

joint family property, was rejected. It was held that the

properties were the private properties of Maharaja, as asserted

by him.

20. On this issue, Mr. A. K. Ganguli, learned senior

counsel appearing for the legal heirs of contesting defendant

no. 1, has placed strong reliance on the judgment of this Court

in Pratap Singh v. Sarojini Devi5, hereinafter referred to as

‘the Nabha case’. In this case, this Court was dealing with two

different proceedings though decided by the same judgment.

Nabha was a princely State and Maharaja Ripudaman Singh

was the ruling chief of Nabha State in the early 20s of the 20th

century. The British Government withdrew his powers as ruler

in the year, 1923. In 1928, the Maharaja was formally deposed

from the Gaddi and exiled. He, thereafter, resided in

Kodaikanal in Tamil Nadu till his death in 1942. He left behind

his wife Sarojini Devi, three sons Pratap Singh, Kharagh

Singh, Gurbaksh Singh and two daughters Kamla Devi and

5 (1994) Supp. 1 SCC 734

Vimla Devi. The eldest son Pratap Singh was recognised by the

British Government as the ruler of Nabha and he later entered

into an agreement of merger with the Dominion of India.

Sterling Castle was mentioned in the list of his private

properties.

21. It would be pertinent to mention here that the British

Government had placed restrictions on the rulers with regard

to the purchase of properties outside their own State. A

property known as ‘Sterling Castle’ situated in Shimla was

purchased by Maharaja Ripudaman Singh in the name of his

friend Dr. Tehl Singh on 21.12.1921 when he was still the

Maharaja. On 30.04.1952, Dr. Tehl Singh executed a

relinquishment deed and conferred title of the property upon

the three sons and widow of Maharaja Ripudaman Singh.

Pratap Singh as the recognised ruler claimed absolute rights on

the property and denied the title of the other heirs of Maharaja

Ripudaman Singh. It was alleged that this property was

purchased out of the funds of Nabha State and the properties

were the properties of Maharaja Ripudaman Singh and,

therefore, governed by the rule of primogeniture. Sarojini Devi,

Kharagh Singh and minor children of Gurbaksh Singh filed a

suit for partition, etc. with regard to the property. The suit was

tried on the original side of the High Court of Himachal

Pradesh. It was held that the property was purchased benami

by Maharaja Ripudaman Singh. The learned Single Judge held

that the rule of primogeniture would not be applicable to the

personal property of the Maharaja and would only be

applicable to the property of the State. In appeal filed by

Pratap Singh, the Division Bench of the High Court held that it

had not been established that the property was purchased out

of the personal funds of Maharaja Ripudaman Singh and,

therefore, was not the personal property and hence, the suit

was dismissed and the appeal was allowed.

22. The other appeal decided by the same judgment relates

to a property situate in Civil Lines, Delhi. A suit was filed by

Pratap Singh against his mother, two brothers and two sisters.

This property was purchased in 1922 in the name of one

Gurnarain Singh Gill, but was managed by the officials of

Nabha State. This property was declared to be the personal

property of Pratap Singh, when he signed the instrument of

accession and on the basis, that this was his private property,

suit for possession was filed. The learned Single Judge held

that the property was of Nabha State and was not the personal

property of Maharaja Ripudaman Singh and the suit was

decreed. The Division Bench set aside the judgment of the

learned Single Judge holding that the property was the

personal property of Maharaja Ripudaman Singh and on his

death, devolved as per personal law, upon his sons. The widow

was held entitled to some share under the Hindu Women’s

Right to Property Act, 1937. The suit was accordingly

dismissed.

23. Dealing with the issue as to who was the original

owner of the properties, this Court held that when Maharaja

Ripudaman Singh was the ruler, he was the sovereign and

exercised paramount power over the entire State of Nabha. All

properties vested in him and there was no distinction between

State and personal properties. Reliance was placed upon Para

157 of the White Paper on Indian States which reads as follows:

“57.….In the past the Rulers made no distinction between private and State property; they could freely use for personal purposes any property owned by their respective States. With the integration of States it became necessary to define and

demarcate clearly the private property of the Ruler. The settlement was a difficult and delicate task calling for detailed and patient examination of each case. As conditions and customs differed from State to State, there were no precedents to guide and no clear principles to follow. Each case, therefore, had to be decided on its merits.”

This Court further held that the rule of impartibility and

primogeniture in relation to the zamindari or other impartible

estates must be established by proving the custom, but in the

case of a sovereign ruler, they are presumed to exist. It was

also observed that no distinction could be drawn between the

public and private property of the ruler. This Court further

went on to hold that there was no rulership in India after India

became a Republic on 26.01.1950 “but if the estate is

impartible in nature it would continue to be governed by the rule

of primogeniture”.

24. Article 12 of the instrument of merger of Nabha State

is virtually identical to Article 4 of Exhibit 4. This Court in the

Nabha case held as follows:

“78. A careful reading of Article XII shows that there is a clear distinction between the private properties and the State properties. Such private properties must be belonging to the Ruler and must be in his use and enjoyment even earlier. Therefore, properties which were recognised even earlier as such private properties alone were to be left out and

submitted for the recognition as such. As stated in White Paper (para 157, page 23 supra), the demarcation and the settlement of the list was carried out for the purposes of Integration. If this be the correct position of law, the contrary observations of the learned Single Judge are not correct.”

25. We are of the view that the observations made above

run counter to what was held in the earlier part of the

judgment where in the same judgment it was held that no

distinction could be drawn between the public and private

properties of the ruler. If no such distinction could be drawn,

the question of any properties being recognised as the private

properties of the ruler prior to the State ceding to the Dominion

of India does not arise.

26. This Court held that both the properties at Shimla and

Delhi were State properties and not the personal properties of

Maharaja Ripudaman Singh and, therefore, governed by the

rule of primogeniture.

27. At the outset, we may note that both in the

Travancore case and the Nabha case, the suits had been

filed in the lifetime of the rulers, who had ceded the State to

the Indian Union. The collaterals of the rulers filed suits trying

to establish their right on the property contending that the

property had become a partible estate in the hands of the ruler.

As far as the Travancore case is concerned, we find that the

contesting defendants can get no benefit from this decision. It,

in fact, supports the case of the appellants inasmuch as it held

that the property in question was the personal property of the

Maharaja of Travancore and, therefore, not subject to partition.

As far as the Nabha case is concerned, we have given the facts

of that case in detail to show that the main dispute was

whether the properties were purchased by Maharaja

Ripudaman Singh out of his own personal funds or from the

funds of Nabha State. This Court held that there could be no

distinction between the private or personal properties when the

Maharaja was the sole sovereign. As Maharaja Ripudaman

Singh was the Sovereign till his powers were taken away in

1923, and before he was finally deposed in 1928, both the

properties at Shimla and Delhi were purchased when he was

the Maharaja and it was a finding of fact that these properties

were purchased out of the State funds. These properties also

found mention in the list of properties declared to be the

private properties of Maharaja Pratap Singh in the instrument

of merger. The disputes arose when Maharaja Pratap Singh

was still the ruler and was alive. The question of succession

had not opened. The court held that the properties being the

personal properties of the Maharaja, could not be subjected to

partition. We may, however, observe that there is a fleeting

remark that the property formed part of an impartible estate

and therefore, would be governed by the rule of primogeniture.

In our view, this question did not arise for consideration and

this Court did not decide the question as to whether the

impartible estate continued to exist after the ruler ceased to be

a ruler.

28. The other two judgments relate to issues not of

succession, but in both the judgments it was held that after

1950 ‘ruler’ for all purposes would own these properties like

any other common citizen. In Visweshwar Rao case (supra) it

was clearly held that the guarantees or assurances were limited

to the personal rights, privileges and dignities of the ruler qua a

ruler and do not extend to his personal property. Similar

observations were made in the case of Sudhansu Shekhar

Singh Deo (supra).

29. The High Court relied on certain observations in the

case of Madhav Rao Scindia, Etc. v. Union of India6, which

is commonly referred to as ‘the Princes Privy Purses case’. This

case mainly dealt with the issue as to what are the executive

powers of the State and whether the Union by executive

directions could withdraw the privy purses and other privileges

which had been guaranteed to the rulers. The Court held that

the executive had no power to flout the mandate of the

Constitution and since the guarantees given by the agreements

had been recognised in the Constitution, they could not be

taken away by the executive orders.

30. The High Court held that the judgment in the

Dholpur case had been reversed in the Princes Privy Purses

case. We are unable to agree with this finding of the High

Court. In the Dholpur case, this Court held that recognition

of rulership by the President is an exercise of “political” power

vested in the President. It was urged in the Princes Privy

Purses case that even the notification issued withdrawing the

privy purses was in exercise of the “political” power and,

6 (1971) 1 SCC 85

therefore, the court could not interfere in the same. What was

held in the Princes Privy Purses case with regard to these

observations was that in the Dholpur case, the Court had

improperly used the words “political power”. Justice J.C. Shah

in the Princes Privy Purses case, dealing with the Dholpur

case held as follows:

“98..….In Kunvar Shri Vir Rajendra Singh v. Union of India and Others, 1969 (3) SCC 150, this Court negatived the claim of an applicant that his right to property was violated because the President accepted another claimant to the Gaddi of Dholpur as Ruler, observing that the recognition of Rulership by the President, in exercise of his political power, did not amount to recognition of any right to private properties of the Ruler. The Court did not attempt to classify the exercise of the Presidential function under Article 366(22) as distinct from executive functions; that is clear from the dictum that the exercise of the President’s power was “an instance of purely executive function”

Justice Shah, dealing with this argument held as follows:

“141….It is difficult to regard a word or a clause occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not fall to be answered in that judgment.”

Justice K.S. Hegde, who was also a Member of the Bench

which decided the Dholpur case, dealing with this contention,

held as follows:

“178. What is said in that case is that the President while acting under Article 366(22) is exercising his executive jurisdiction and that jurisdiction was described as “political power”. That expression may be inappropriate but that is not the ratio of the decision. It was a casual observation. There is nothing like political power under our Constitution in the matter of relationship between the executive and the citizens. Our Constitution recognises only three powers, viz. the legislative power, the judicial power and the executive power. It does not recognise any other power. In our country the executive cannot exercise any sovereignty over the citizens. The legal sovereignty in this country vests with the Constitution and the political sovereignty is with the people of this country. The executive possesses no sovereignty……”

Justice G.K. Mitter, dealing with the same contention, held that

though some observations support the contention of the

Attorney General, but they must be limited to the facts of that

case. The appellant in the Dholpur case did not claim any

right to the Gaddi but only to the private properties of the

deceased ruler and the notification issued under clause (22) of

Article 366 of the Constitution did not deal with the private

properties.

31. In our view, the judgment in the Dholpur case cannot

be said to have been set aside or upset in the Princes Privy

Purses case. What was held was that use of the expression

‘political power’ in the Dholpur case was inappropriate and

the appropriate words should have been ‘executive power’. In

fact, in the Dholpur case, the very next part of the sentence

reads “and is thus an instance of purely executive jurisdiction of

the President”. This clearly shows that the observations in the

Princes Privy Purses case would have no impact on the ratio

of the judgment in the Dholpur case.

32. The issue is whether the rulers continued to be rulers

after executing the instruments of merger. They had agreed to

merge their States with the Indian Union because they were to

be paid privy purses and would enjoy certain privileges. They

were also entitled to declare some properties to be their private

properties. In case of disputes whether the property is private

or State property, the Union could refer the dispute for decision

to a committee headed by a judicial officer. The rulers were no

longer sovereign. There was no paramountcy vested in the

rulers. They had no land other than the private properties.

They had no subjects. They were rulers only in name, left only

with the recognition of their original title, a privy purse, some

privileges, etc.

Chief Justice M. Hidayatullah (as he then was) in his

inimitable way in the Princes Privy Purses case pithily held

as follows:

“40…….Paramountcy as such was no more as there was no paramount power and no vassal. The Rulers had lost their territories and their right to rule and administer them. They were left only a recognition of their original title, a Privy Purse, their private properties and a few privileges. These rights were the only indicia of their former sovereignty but they enjoyed them by the force of the Constitution although in every respect they were ordinary citizens and not potentates…….”

33. It is apparent that the rulers were rulers only in name.

They held no land except the personal properties. There were

no subjects. They were Maharajas or Rajas without a Praja;

without any sovereignty; and without any territory.

34. The definition of ruler in clause (22) of Article 366 of

the Constitution itself shows that the person who is defined as

ruler is a former prince, chief or other person, who was, on or

after 26.01.1950 recognised as a ruler having signed the

covenant of accession. Necessarily, the ruler was a person who

was recognised before independence by the British Crown and

was the sovereign of his State. Such person, though defined as

a ‘Ruler’, has no territory and exercises no sovereignty over any

subjects. He has no attributes of a potentate nor does he enjoy

all the powers and privileges which are normally exercised by a

potentate. As Justice Shah in the Princes Privy Purses case

judgment held, “he is a citizen of India with certain privileges

accorded to him because he or his predecessor had surrendered

his territory, his powers and his sovereignty”.

35. The President while exercising his powers under Article

366 (22) could not notify a ruler at his whims and fancy. As

held in the Princes Privy Purses case:

“288…..The choice of a person as a Ruler to succeed another on his death was certainly not left to the mere caprice of the President. He had to find out the successor and this he could do not by applying the ordinary rules of Hindu Law or Mohamadan Law but by the law and custom attaching to the Gaddi of a particular State…..”

36. Examples were also given where in cases of disputes,

the same were referred to committees comprising of the Chief

Justices of the States and erstwhile rulers. However, it is clear

that the declaration under clause (22) of Article 366 relates

only to the Gaddi or the rulership and not to the properties

which were declared to be private properties by the ruler.

37. It was contended by Mr. Ganguli that there could be

no Gaddi without a property and the properties which were

declared to be the private properties were, in fact, attached to

the Gaddi and the properties would be of the ruler so declared.

We find no force in this submission. These were rulers without

any subjects. These were rulers without any territory. These

were so called rulers enjoying certain privileges and privy

purses. They had been given the choice of declaring certain

properties to be their private properties and these private

properties could not be said to be attached to the Gaddi. When

they were actual sovereigns, their entire State was attached to

the Gaddi and not any particular property. There are no

specific properties which can be attached to the Gaddi. It has

to be the entire ‘State’ or nothing. Since, we have held that

they were rulers only as a matter of courtesy, to protect their

erstwhile titles, the properties which were declared to be their

personal properties had to be treated as their personal

properties and could not be treated as properties attached to

the Gaddi.

38. Mr. Chandra has drawn our attention to the Rajpal

Hindi Shabdkosh7 in which Gaddi has been given various

meanings including small mattress, seat of an exalted person,

title of a ruler. In the Oxford HindiEnglish Dictionary8, the

meanings given are cushion, throne, royal seat, etc. Property is

not mentioned as one of the attributes of a Gaddi.

39. A Gaddi or rulership and private property have two

different connotations even in the merger

agreement/instrument of accession. In Article 2 of the

agreement, it is clearly mentioned that Nawab would continue

to enjoy the same personal rights, privileges, immunities and

dignities and other titles which he would have enjoyed prior to

the agreement. Conspicuously, the word ‘property’ or ‘personal

property’ is missing. Article 2 deals only with personal rights,

privileges, dignities, etc. Article 3 deals with privy purse which

would also be a part of the rulership or Gaddi. Article 6 which

deals with succession, guarantees the succession according to

law and custom to the Gaddi of the State and to the Nawab’s

personal rights, privileges, immunities, dignities and title.

7 Rajpal Hindi Shabdkosh, Dr. Hardev Bahri, Rajpal & Sons, Pg.206 (2018) 8 Oxford HindiEnglish Dictionary, Edited by R.S. McGregor, Oxford University Press,

Pg.254 (2018)

Gaddi would be the ‘throne’ or ‘title’ of Nawab in the context in

which it has been used and the personal rights, privileges,

immunities, dignities and titles will be those referred to in

Article 2. The word ‘property’ is also conspicuously absent in

Article 6.

40. Article 4 states that the Nawab shall be entitled to full

ownership, use and enjoyment of all private properties as

distinct from State properties. Such properties must belong to

him as on the date of agreement. In our view, Article 6 does

not relate to the properties mentioned in Article 4 and the

private properties would remain the private properties of the

Nawab as a common citizen of the country as held in various

authorities referred to above. We have, therefore, no hesitation

in holding that on the death of the ruler, Nawab Raza Ali Khan

in the year 1966, succession to his private properties was

governed by personal laws.

41. Mr. A.K. Ganguli, placed reliance upon the

observations in the case of Raghunathrao Ganpatrao v.

Union of India9, hereinafter referred to as ‘the second privy

9 1994 Supp. (1) SCC 191

purses case’. In this case, the erstwhile rulers challenged the

26th Amendment, 1971 of the Constitution whereby the benefits

given to the rulers, as enshrined in the Constitution in Articles

291 and 362 mentioned hereinabove, were taken away. This

was done after the judgment in the first Princes Privy Purses

case wherein it was held that the guarantees, given to the

erstwhile rulers having been embodied in the Constitution,

could not be taken away by executive fiat. Thereafter, the

Parliament amended the Constitution and it was in this context

that the following observations were made:

“74. The agreements entered into by the Rulers of the States with the Government of India were simple documents relating to the accession and the integration and the “assurances and guarantees” given under those documents were only for the fixation of the privy purses and the recognition of the privileges. The guarantees and the assurances given under the Constitution were independent of those documents. After the advent of the Constitution, the Rulers enjoyed their right to privy purses, private properties and privileges only by the force of the Constitution and in other respects they were only ordinary citizens of India like any other citizen; of course, this is an accident of history and with the concurrence of the Indian people in their Constituent Assembly.

75. Therefore, there cannot be any justification in saying that the guarantees and assurances given to the Rulers were sacrosanct and that Articles 291 and 362 reflected only the terms of the agreements and covenants. In fact as soon as the Constitution came into force, the Memoranda of Agreements executed and ratified by the States and Union of States were embodied in formal agreements under the relevant articles of the Constitution and no obligation flowed from those

Agreements and Covenants but only from the Constitutional provisions. To say differently, after the introduction of Articles 291 and 362 in the Constitution, the Agreements and Covenants have no existence at all. The reference to Covenants and Agreements was casual and subsidiary and the source of obligation flowed only from the Constitution. Therefore, the contention urged on the use of the words ‘guaranteed’ or ‘assured’ is without any force and absolutely untenable.”

42. We are not stricto sensu dealing with this issue

because the succession to the estate of Nawab Raza Ali Khan

opened in the year 1966, prior to the 26th Amendment Act.

However, one thing which is clear is that the rulers enjoyed

right to privy purses, private properties and privileges only

because of the Constitution and in other respects they were

ordinary citizens. It was urged that since the rights were

guaranteed under the Constitution, the rule of primogeniture

would apply. We find no force in this contention because, as

already discussed above, in Article 362 reference is made only

to the personal rights, privileges and dignities of the ruler of an

Indian State and, in our view, rights would not include

succession to personal properties.

43. Another argument raised on behalf of the contesting

defendants is that Nawab Raza Ali Khan, knowing that his

succession was governed by the rule of primogeniture, had

created a trust named ‘The Raza Trust’ for the welfare of his

family members other than defendant no. 1. He had also

made various other grants and gifts in favour of his children

whereas the elder son was deprived of such benefits. It is

contended that the plaintiff and the other defendants

supporting the plaintiff had taken benefit of the said Trust and

gifts and, therefore, cannot challenge the entitlement of

defendant no. 1. This argument cannot be accepted. We have

only to decide what was the legal entitlement of the legal heirs

and in what manner the succession to the estate of late Nawab

Raza Ali Khan was to be governed. We may also mention that

the Trust, which has been referred to by the contesting

defendants, was created in the year 1944, much before the

Nawab ceded his property to the Dominion of India. At that

time, there was no doubt that succession to the properties of

the State of Rampur would be governed by the rule of

primogeniture. Even after Nawab ceased to be the ruler, he

gifted a number of extensive properties to the defendant no. 1

during his lifetime including a property known as Rafat Club in

Rampur, which the defendant no. 1 sold to the State of U.P. in

1961. The erstwhile Nawab also gifted a property known as

Kothi Bareilly and a house in Delhi to defendant no. 1. Both

the Division Bench and the learned Single Judge held that

these properties gifted by the erstwhile Nawab to the defendant

no. 1 were given to him only to maintain his status as the ruler

and, therefore, could not be taken into consideration while

deciding the issue of succession of the erstwhile Nawab of

Rampur.

44. We find a contradiction in the findings of the High

Court in this regard. On the one hand, it is said that the

plaintiff and the other family members cannot urge that the

estate of the Nawab should be governed by personal law

because they have derived benefits from the Raza Trust and

gifts in their life time and, on the other hand, when it comes to

the defendant no. 1, it is said that the gifts were made only

with a view that defendant no. 1 should be able to maintain his

status as the prospective heir. If he was to get all the

properties of the Nawab, then why gifts would have to be made

in his favour in his life time. Therefore, this contention is

rejected.

45. There is no dispute between the parties that if personal

law is to apply then the Muslim Personal Law (Shariat)

Application Act, 1937 will apply and since Nawab Raza Ali

Khan was a Shia, his estate will devolve upon his heirs under

the Muslim personal law, as applicable to Shias.

46. During the pendency of the suit the plaint was

amended from time to time because of the death of defendant

no. 1, defendant no.1/1 and defendant no.3. After the

amendment, the shares of all the legal heirs were worked out in

para 9F of the plaint. These shares have not been disputed by

any one nor there is any dispute with regard to the manner in

which the shares have been worked out. Therefore, these

shares are accepted to be correct. The parties shall be entitled

to the property as per the shares set out in para 9F of the

plaint which shall form a part of the decree.

47. In view of the above discussions, we allow the appeals,

set aside the judgments of learned Single Judge and Division

Bench of the High Court of Judicature at Allahabad, and

determine the shares of the properties in terms of Para 9F of

the plaint. The appeals are accepted and a decree is passed in

the following terms:

(1) The parties shall be entitled to succeed to the properties of late Nawab Raza Ali Khan, set out in Schedules A and B to the plaint, as per personal law and in the shares set out in para 9F of the amended plaint.

(2) The first effort shall be to divide the immovable properties (set out in Schedule A to the plaint) as per the respective shares, by metes and bounds and for this purpose the Trial Court may appoint a Commissioner to assist it.

(3) In case the division of the immovable properties (set out in Schedule A to the plaint) is not feasible by metes and bounds the Trial Court shall fix the owelty money and follow the procedure prescribed by law so that at the first instance efforts are made to keep the properties within the family.

(4) To evaluate the value of moveable properties left behind by Nawab Raza Ali Khan (set out in Schedule B to the plaint), we direct the Trial Court to appoint a Commissioner. Properties shall also be divided as per the shares and if that is not feasible owelty money will be fixed.

(5) Prayer for decree of mesne profits is rejected since no evidence has been led in this regard.

(6) The defendant no.1/2 and defendant no. 1/3 shall render accounts in respect of the incomes, profits, usufructs and benefits inherited by them or enjoyed by deceased defendant no.1 and deceased defendant no. 1/1. These shall be adjusted while determining the value of the properties falling to their shares and also the owelty money.

(7) The Trial Court shall also determine whether the defendant no.1 (since deceased), defendant no.1/1 (since deceased), defendant no.1/2 or defendant no.1/3 have sold or transferred any movable property or immovable property during the pendency of these proceedings. The value of such immovable property or movable property sold or transferred shall obviously be deducted from the shares of defendant no.1 /2 and defendant no.1/3.

(8) We direct all the parties to appear before the District Judge, Rampur on 02.09.2019 and request the District Judge, Rampur to keep the case on his docket and proceed further. The District Judge may first try to impress upon the parties to make the actual division of the properties by settlement by mutual agreement since the main dispute with regard to the rule of succession and the shares has been determined.

(9) As the suit has been pending for almost half a century and the parties have been litigating for more than 5 decades and some of the parties are at an advanced age, we direct the trial court to dispose of

the matter in terms of our directions above at the earliest but, in any case, not later than 31.12.2020.

48. I.A. No. 3 of 2014 is dismissed. The applicants shall,

however, be at liberty to file a Civil Suit to establish their

rights.

49. No order in the Contempt Petition in view of the

directions issued.

50. All other applications are disposed of. No order as to

costs.

……………………..CJI. (Ranjan Gogoi)

…………………………J. (Deepak Gupta)

…………………………J. (Aniruddha Bose)

New Delhi July 31, 2019