# M/s TRINITY INFRAVENTURES LTD. & ORS. ETC v. M. S. MURTHY & ORS. ETC

- **Citation:** [2023] 8 S.C.R. 283
- **Court:** Supreme Court of India
- **Decided:** 2023-06-15
- **Case number:** Civil Appeal Nos. 4049-4053 of 2023
- **Bench:** V. Ramasubramanian, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-trinity-infraventures-ltd-ors-etc-v-m-s-murthy-ors-etc-37546
- **Pages:** 96

## Headnote

Suit - Partition suit - Decree - Preliminary decree - Mathruka
property - Whether on facts, the Division Bench of the High Court
was right in declaring that the preliminary decree dated 28.06.1963
was vitiated by fraud and consequently null and void, especially
when there was no pleading and no evidence let in - Held: The
preliminary decree dated 28.06.1963 could not have determined
the claim to title made by the legal heirs seeking partition, as against
third parties - Any finding rendered in the preliminary decree, that
the properties were Mathruka properties liable to be partitioned,
was only incidental to the claim of the legal heirs and such a finding
will not be determinative of their title to property as against third
parties - The manner in which the judgment and preliminary decree
dated 28.06.1963 were sought to be used, abused and misused by
parties to the proceedings as well as non-parties who jumped into
the fray by purchasing portions of the preliminary decree and
seeking to execute them through Court, defeating the rights of third
parties, is what has prompted the Division Bench of the High Court
to hold that the preliminary decree is vitiated by fraud - What was
a simple suit for partition; and the incidental finding recorded that
the properties were Mathurka properties, have been used by parties
and non-parties to assert title to the properties against strangers -
This was definitely an abuse of the process of law - The judgment
and preliminary decree dated 28.06.1963, though may not be vitiated
by fraud, are certainly not binding upon third parties like the claim
petitioners as well as the Government who have set up independent
claims and whatever was done in pursuance of the preliminary decree
was an abuse of the process of law.
Suit - Decree - Preliminary decree - 'Paigah' Estate - Mathruka
property - Whether on facts, the concurrent findings of the Single
Judge and the Division Bench of the High Court that Khurshid Jah
[2023] 8 S.C.R. 283
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a 'Paigah' grantee, did not leave behind any Mathruka property,
goes contrary to the finding recorded in the Judgment and
preliminary decree that has attained finality - Whether the finding
recorded in the judgment and preliminary decree that the lands in
question are Mathruka property was binding upon third parties -
Held: No finding was ever recorded by the Trial Judge in his
judgment dated 28.06.1963 that the properties left behind by
Khurshid Jah were Mathruka properties - Therefore, the contention
as though there was such a finding and that the finding has attained
finality and that the impugned Judgment goes contrary to such a
finding, is wholly misconceived - The Single Judge as well as the
Division Bench (in the impugned judgment) were right in holding
that the properties were not established to be Mathruka properties -
The effect of the order of the Nazim Atiyat was not examined by the
Trial Judge - In any case, such an examination had to be done
independently and not in a partition suit, keeping in view, the 1955
Act and various subsequent enactments relating to agricultural land
reforms and urban land ceiling - When the entire claim of the
appellants that the properties were Mathruka properties inheritable
by the legal heirs had failed, the question of executing a decree on
the strength of the plea that the property is a Mathruka property
does not arise - The predecessors of the appellants have had
knowledge that faisal patti were recorded in the name of the claim
petitioners in 1978 itself - Even the Receiver was aware of this, as
seen from the letter written by the Receiver on 09.04.1980 to the
Collector - It is too late in the day for the appellants to question as
to how the claim of the claim petitioners stood established.
Code of Civil Procedure, 1908 - Order XXI, rr.97- 101 -
Enquiry under - Scope of - Held: In an enquiry under Order XXI,
rr. 97 to 101, CPC, the Executing Court cannot decide qu

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M/s TRINITY INFRAVENTURES LTD. & ORS. ETC.
v.
M. S. MURTHY & ORS. ETC.
(Civil Appeal Nos. 4049-4053 of 2023)
JUNE 15, 2023
[V. RAMASUBRAMANIAN AND PANKAJ MITHAL, JJ.]
Suit - Partition suit - Decree - Preliminary decree - Mathruka
property - Whether on facts, the Division Bench of the High Court
was right in declaring that the preliminary decree dated 28.06.1963
was vitiated by fraud and consequently null and void, especially
when there was no pleading and no evidence let in - Held: The
preliminary decree dated 28.06.1963 could not have determined
the claim to title made by the legal heirs seeking partition, as against
third parties - Any finding rendered in the preliminary decree, that
the properties were Mathruka properties liable to be partitioned,
was only incidental to the claim of the legal heirs and such a finding
will not be determinative of their title to property as against third
parties - The manner in which the judgment and preliminary decree
dated 28.06.1963 were sought to be used, abused and misused by
parties to the proceedings as well as non-parties who jumped into
the fray by purchasing portions of the preliminary decree and
seeking to execute them through Court, defeating the rights of third
parties, is what has prompted the Division Bench of the High Court
to hold that the preliminary decree is vitiated by fraud - What was
a simple suit for partition; and the incidental finding recorded that
the properties were Mathurka properties, have been used by parties
and non-parties to assert title to the properties against strangers -
This was definitely an abuse of the process of law - The judgment
and preliminary decree dated 28.06.1963, though may not be vitiated
by fraud, are certainly not binding upon third parties like the claim
petitioners as well as the Government who have set up independent
claims and whatever was done in pursuance of the preliminary decree
was an abuse of the process of law.
Suit - Decree - Preliminary decree - 'Paigah' Estate - Mathruka
property - Whether on facts, the concurrent findings of the Single
Judge and the Division Bench of the High Court that Khurshid Jah
[2023] 8 S.C.R. 283
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a 'Paigah' grantee, did not leave behind any Mathruka property,
goes contrary to the finding recorded in the Judgment and
preliminary decree that has attained finality - Whether the finding
recorded in the judgment and preliminary decree that the lands in
question are Mathruka property was binding upon third parties -
Held: No finding was ever recorded by the Trial Judge in his
judgment dated 28.06.1963 that the properties left behind by
Khurshid Jah were Mathruka properties - Therefore, the contention
as though there was such a finding and that the finding has attained
finality and that the impugned Judgment goes contrary to such a
finding, is wholly misconceived - The Single Judge as well as the
Division Bench (in the impugned judgment) were right in holding
that the properties were not established to be Mathruka properties -
The effect of the order of the Nazim Atiyat was not examined by the
Trial Judge - In any case, such an examination had to be done
independently and not in a partition suit, keeping in view, the 1955
Act and various subsequent enactments relating to agricultural land
reforms and urban land ceiling - When the entire claim of the
appellants that the properties were Mathruka properties inheritable
by the legal heirs had failed, the question of executing a decree on
the strength of the plea that the property is a Mathruka property
does not arise - The predecessors of the appellants have had
knowledge that faisal patti were recorded in the name of the claim
petitioners in 1978 itself - Even the Receiver was aware of this, as
seen from the letter written by the Receiver on 09.04.1980 to the
Collector - It is too late in the day for the appellants to question as
to how the claim of the claim petitioners stood established.
Code of Civil Procedure, 1908 - Order XXI, rr.97- 101 -
Enquiry under - Scope of - Held: In an enquiry under Order XXI,
rr. 97 to 101, CPC, the Executing Court cannot decide questions of
title set up by third parties (not claiming through or under the parties
to the suit or their family members), who assert independent title in
themselves - All that can be done in such cases at the stage of
execution, is to find out prima facie whether the obstructionists /
claim petitioners have a bona fide claim to title, independent of the
rights of the parties to the partition suit - If they are found to have
an independent claim to title, then the holder of the decree for
partition cannot be allowed to defeat the rights of third parties in
these proceedings.
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Suit - Partition suit - Preliminary decree - Effect of - Held:
A preliminary decree in a suit for partition merely declares the shares
that the parties are entitled to in any of the properties included in
the plaint schedule and liable to partition - On the basis of a mere
declaration of the rights that take place under the preliminary decree,
the parties cannot trade in, on specific items of properties or specific
portions of suit schedule properties - Since there are three stages
in a partition suit, namely (i) passing of a preliminary decree in
terms of Order XX Rule 18(2); (ii) appointment of a Commissioner
and passing of a final decree in terms of Order XXVI Rule 14(3);
and (iii) taking possession in execution of such decree under Order
XXI Rule 35, no party to a suit for partition, even by way of
compromise, can acquire any title to any specific item of property
or any particular portion of a specific property, if such a compromise
is struck only with a few parties to the suit - Code of Civil Procedure,
1908 - Order XX, r.18(2); Order XXVI, r.14(3) and Order XXI, r.35.
Suit - Partition suit - Held: In a suit for partition, the Civil
Court cannot go into the question of title, unless the same is
incidental to the fundamental premise of the claim.
Disposing of the appeals, the Court
HELD: 1. The way in which the suit claim has been valued
and court-fee paid, demonstrates very clearly that it was not a
suit for declaration of title to any property. It was only a suit for
partition. All the suit schedule properties have been valued at a
particular rate and court- fee was paid on the value of the share,
of which the plaintiff was seeking partition. If it was a suit
containing a prayer for declaration of title, the court-fee was liable
to be paid on the whole value of the property and not on the
share sought to be partitioned. Therefore, the preliminary decree
dated 28.06.1963 could not have determined the claim to title
made by the legal heirs seeking partition, as against third parties.
Any finding rendered in the preliminary decree, that the
properties were Mathruka properties liable to be partitioned,
was only incidental to the claim of the legal heirs and such a finding
will not be determinative of their title to property as against third
parties. [Paras 119 & 120][341-E-H]
M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S.
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2. Technically the High Court may not be right, in the true
legal sense, in branding the preliminary decree as vitiated by
fraud. But the fact remains that insofar as third parties to the
family of Khurshid Jah (and those claiming under them) are
concerned, the preliminary decree is nothing more than a mere
paper, as those third parties have had nothing to do with the claim
for partition, though they have had a legitimate claim to title to
the properties, described in the suit schedule. Therefore, the
judgment and preliminary decree dated 28.06.1963, though may
not be vitiated by fraud, are certainly not binding upon third parties
like the claim petitioners and the Government who have set up
independent claims. Also, in an enquiry under Order XXI, Rules
97 to 101, CPC, the Executing Court cannot decide questions of
title set up by third parties, who assert independent title in
themselves. Marina Beach (in Chennai) or Hussain Sagar (in
Hyderabad) or India Gate (in New Delhi) cannot be included as
one of the items of properties in the Plaint Schedule, in a suit for
partition between the members of a family and questions of title
to these properties cannot be allowed to be adjudicated in the
claim petitions under Order XXI, Rules 97-101, CPC. [Para
126][344-E-H; 345-A]
3. The judgment and preliminary decree dated 28.06.1963,
though may not be vitiated by fraud, are certainly not binding
upon third parties like the claim petitioners as well as the
Government who have set up independent claims and that
whatever was done in pursuance of the preliminary decree was
an abuse of the process of law. In an enquiry under Order XXI,
Rules 97 to 101, CPC, the Executing Court cannot decide
questions of title set up by third parties (not claiming through or
under the parties to the suit or their family members), who assert
independent title in themselves. All that can be done in such
cases at the stage of execution, is to find out prima facie whether
the obstructionists/claim petitioners have a bona fide claim to
title, independent of the rights of the parties to the partition suit.
If they are found to have an independent claim to title, then the
holder of the decree for partition cannot be allowed to defeat the
rights of third parties in these proceedings. [Para 139][348-D-G]
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4. Since everyone focused attention only on Hyderabad Jagir
Abolition Regulations, 1948 and a contention was raised that the
personal properties of the Jagirs were exempt under Section 18,
no one ever examined the impact of 1955 Act. Even if the property
in question escapes the guillotine under the Jagir Abolition
Regulations, it may meet its fate under the 1955 Act. Therefore,
the Single Judge as well as the Division Bench were right in
holding that the properties were not established to be Mathruka
properties. The effect of the order of the Nazim Atiyat was not
examined by the Trial Judge. In any case, such an examination
had to be done independently and not in a partition suit, keeping
in view, the 1955 Act and various subsequent enactments relating
to agricultural land reforms and urban land ceiling. [Paras 159 &
160][355-B-E]
5. When the entire claim of the appellants that the
properties were Mathruka properties inheritable by the legal heirs
had failed, the question of executing a decree on the strength of
the plea that the property is a Mathruka property does not arise.
[Para 166][356-F-G]
NSS Naryana Sarma v. M/s Goldstone Exports Private
Ltd. (2002) 1 SCC 662 : [2001] 5 Suppl. SCR 327;
Venkata Reddy v. Pethi Reddy AIR 1963 SC 992 : [1963]
2 Suppl. SCR 616; Raja Ram Chandra Reddy v. Rani
Shankaramma AIR 1956 SC 319; Sikander Jehan
Begum v. Andhra Pradesh State Government AIR 1962
SC 996 : [1962] 2 Suppl. SCR 226; State of Andhra
Pradesh (Now State of Telangana) v. A.P. State Wakf
Board 2022 SCC OnLine SC 159; Mohd. Habbibuddin
Khan v. Jagir Administrator, Government of Andhra
Pradesh (1974) 1 SCC 82; Rangammal v. Kuppuswami
(2011) 12 SCC 220 : [2011] 6 SCR 835; National
Textile Corporation (Maharashtra South) Ltd. v.
Standard Chartered Bank (2000) 10 SCC 592 and
Lachhman Dass v. Jagat Ram and Others (2007) 10
SCC 448 : [2007] 2 SCR 980 - referred to.
M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S.
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Case Law Reference
[2001] 5 Suppl. SCR 327
referred to
Para 78
AIR 1956 SC 319
referred to
Para 99(vii)
[1962] 2 Suppl. SCR 226
referred to
Para 99(vii)
(1974) 1 SCC 82
referred to
Para 99(vii)
[2011] 6 SCR 835
referred to
Para 99(ix)
(2000) 10 SCC 592
referred to
Para 104
[2007] 2 SCR 980
referred to
Para 104
[1963] 2 Suppl. SCR 616
referred to
Para 188
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 40494053 of 2023.
From the Judgment and Order dated 20.12.2019 of the High Court
for the State of Telangana at Hyderabad in OSA Nos. 54, 56, 57, 58 and
59 of 2004.
With
Civil Appeal Nos. 4054, 4055-4058, 4059, 4060, 4061-4064, 4065,
4066, 4067 and 4068-4072 of 2023.
Gopal Sankarnarayanan, V. V. S. Rao, K. S. Murthy, P.V.
Surender Nath, C. S. Vaidyanathan, B Adinarayana Rao, Ranjit Kumar,
Hemendranath Reddy, Sr. Advs., Mandeep Kalra, N M Krishnaiah,
Ms. Radhika Narula, Ms. Divya Singh Pundir, Rishabh Lekhi, Ms.
Tanya Singh, Ms. Anushna Satapathy, Anand Sanjay M. Nuli, Suraj
Kaushik, Nanda Kumar K. B., Shiva Swaroop, M/s. Nuli & Nuli,
Santosh Krishnan, V N Murthy, Ms. Deepshikha Sansanwal, Tadimalla
Bhaskar Gowtham, Sandeep Singh, D. Srinivas, A.V.S. Raju, Mrs.
Lekha Sudhakaran, S. Senthil Kumar, V. Senthil Kumar, M. Venkatesulu,
Raghavendran, M. Sriharibabu, M. A. Chinnasamy, Sriharsha
Peechara, Rajiv Kumar Choudhry, Ms. Pallavi, Duvvuri Subrahmanya
Bhanu, Vinayak Goel, Byrapaneni Suyodhan, Bharat J Joshi, Kumar
Shashank, Abhijit Basu, Ms. Tatini Basu, Rohan Divan, Balaji
Srinivasan, V. V. S. Rao, K. S. Murthy, Mullapudi Rambabu, K. Venkat
Rao, M/s. M. Rambabu and Co., Rajnish Kumar Jha, Ms. Jasmine
Damkewala, Ms. Anu Gupta, Kaushal Yadav, Nandlal Kumar Mishra,
Ms. Yashoda Katiyar, Arjun Raghuvanshi, Ritul Tandon, Ram Kishor
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Singh Yadav, Namit Saxena, Awnish Maithani, Prashanth Reddy,
Shivam Raghuwanshi, Ms. Shiksha Ashra, Suyash Vyas, Kumar
Shashank, Nivesh Kumar, Ms. Suditi Singh, Nitish Rai, Piyush Tonk,
Vishal Prasad, Advs. for the appearing parties.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
Permission to file special leave petitions is granted in Diary
No.19266 of 2022.
2. Delay condoned.
3. Leave granted.
4. Aggrieved by a common judgment rendered by the Division
Bench of the High Court for the State of Telangana in a batch of intraCourt appeals, confirming the judgment of the learned Single Judge of
the High Court in a batch of applications in a civil suit, various parties
including the State of Telangana and some third parties have come up
with these civil appeals.
5. We have heard Shri Gopal Sankarnarayanan, learned senior
counsel appearing for one set of parties who are the appellants herein
(and who claim to be the assignees of the decree), Shri B. Adinarayana
Rao, Shri Chander Uday Singh, Shri Ranjit Kumar, learned senior counsel
and Shri Santosh Krishnan, learned counsel appearing for parties who
obstructed the execution of the decree (claim petitioners) and who
succeeded before the High Court, Shri C.S. Vaidyanathan, learned senior
counsel appearing for the State of Telangana and Shri V.V.S. Rao, Shri
Hemendranath Reddy and Shri K.S. Murthy, learned senior counsel
appearing for third parties and Shri Dushyant Dave, learned senior counsel
appearing for an Asset Reconstruction Company which has filed an
application for intervention.
Background Facts:
6. Hyderabad was a Princely State until it came to be annexed to
the Union of India on 18.09.1948 through police action which came to
be popularly known as "Operation Polo." HEH the Nizam was its
Ruler till then. While outsourcing is something which we have now come
to be familiar with only in the twentieth century, HEH the Nizam seems
to have adopted the practice of outsourcing even defence services more
M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S.
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than 200 years ago. It seems that the Nizam had the practice of granting
certain lands to people for the purpose of supply and maintenance of
Armed Forces. The lands so granted came to be known as "Paigah
Estate."The dispute on hand relates to a Paigah granted to a person by
name Khurshid Jah and the grant came to be known as Khurshid Jah
Paigah. To understand the nature and sweep of the dispute on hand, it
may be relevant to take a peep into history.
7. It appears that one Mir-Qamar-ud-din Khan (who was given
the title Asaf Jah) was one of the feudal chiefs of the Moghuls and was
the Governor of Deccan from 1713 to 1721. Later he proclaimed
independence and founded the Asaf Jahi dynasty in Hyderabad.
8. As stated by Gribble in his "History of Deccan", Asaf Jah
brought with him a number of followers, both Mohammadens and Hindus,
who were attached to his person and fortunes. To the Mohammedan
nobles, he granted Jagirs or estates on military tenure and employed
them as his Generals. The Hindus were employed principally in the
administrative work in the departments of revenue and finance. To them
also he granted Jagirs as remuneration for their services and all these
Jagirs whether granted for civil or military purposes came to be regarded
as hereditary.
9. Distinguished among the Muslim followers was Mohammed
Abul Khair Khan, a member of a noted family which had settled for
some generations in Oudh and afterwards in Agra. He had rendered
meritorious services in battles and was the recipient of several favours
and honours at the hands of the Nizam. He was eventually made a
"Commander of 6000 horsemen", with the title of "Imam Jung". He
died in 1751 A.D. His son, Abul Fateh Khan, who followed in the footsteps
of his father, soon rose to great prominence. His services also got
rewarded and his estate swelled up by reason of fresh grants and sanads.
10. Eventually, in or about the year 1198 H. (1784 A.D.) the Jagirs
roughly coinciding with what sometime thereafter were called the Paigah
Estates, were granted to him by Nizam Ali Khan under a Perwana. On
his death, a fresh grant of the same estate and of about the same area
was made in 1205 H. to his son, Fakhruddin Khan, who was a minor
then. This grant seems to have been made as Paigah grant.
11. In fact, the term 'Paigah' as used in the Parwan of 1198, and
1205 H. connotes an estate granted for maintenance of the army. Abul
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Fateh Khan indeed expressly undertook to maintain a regular number of
troops at a definite cost. In 1253H. on the application of Fakhruddin
Khan, a regular sanad was granted. That sanad is the foundation of the
title of the Paigah family. The nature of the grants evidenced by this
sanad would show that these grants were burdened with obligations to
maintain Paigah troops for the services of the Nizam.
12. Fakhruddin Khan, however, died in 1863 A.D. He was
succeeded by his eldest surviving son, Rafiuddin Khan, who was coRegent of the Hyderabad State along with Sir Salar Jung during the
minority of the late Nizam Mir Mahboob Ali Khan. On the death of
Rafiuddin Khan, disputes arose about the family properties between
Rashiduddin Khan, his brother, and Motashim-ud-Daula and Bashir-udDaula (Sir Asman Jah) the two sons of Sultanuddin Khan, another brother
of Rafiuddin Khan. Before these quarrels were settled, Motashim-udDaula and Rashiduddin Khan died. Eventually in 1882 A.D., an award
was madeby Sir Salar Jung,between Asman Jah on the one side and
Rashibuddin Khan's two sons, Khurshid Jah and Vikar-ul-Umara on the
other, as a result of which certain estates called Paigah Taluqas were
awarded to Asman Jah. The remaining Paigah Taluqas of the family
were divided between Khurshid Jah and Vikar-ul-Umara as a result of
the award of Mr. Ridsdale. There was a partial division of the family
property in 1878 A.D. also. As a result of these arrangements, the original
Paigah Estate become divided into three separate estates known as the
Asman Jahi Paigah, Khurshid Jahi Paigah and Vikar-ul-Umrahi Paigah.
13. Thereafter, Asman Jah, Khurshid Jah and Vikar-ul-Umara
remained in possession of their respective Paigahs until their deaths.
These Paigah grantees, were not the absolute owners of the estates. In
fact, the Jagirs in Hyderabad State were neither in the nature of
Zamindaries of Madras State nor of Taluqdaris of U.P. While proprietary
rights vested in the Zamindars of Madras and Taluqdars of Oudh, the
Jagirdars in Hyderabad were entitled only to the usufructs of revenue
from the estate for life. The grant, in law, on the death of Jagirdar
would revert to the Crown and would be made as a fresh grant to the
new Jagirdar. The Paigah estates with which this case is concerned,
was no exception to this. In fact, since they were burdened with the
obligation to maintain Paigah troops, they were liable to be resumed by
the Nizam if he so willed. The Nizam could as well commute the military
burden into an equivalent money payment and require such payment on
M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S.
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pain of resuming the Paigah Jagir. He was, at any time entitled to state
that he does not require troops but requires money in their stead.
14. Besides, Paigahs like Jagirs were inalienable and impartiable
save with the consent of the Nizam. Therefore, the above-mentioned
partitions required the consent of the Nizam. In fact, several partitions
which took place, obviously had the implied consent of the Nizam. On
12th Rajab 1337 H. (12-4-1919) the Nizam appears to have ordered
that the Paigah Jagirs were not to be further divided.
15. But the fact that the Paigah Jagirs as they stood at that time
were not to be physically divided, did not prevent such members of the
family as are legally entitled thereto, from dividing the shares of the
income of the Jagirs.
16. A special feature of the Paigah, as also of Jagirs and Inams
in Hyderabad State was that possession of the estate was given to a
single person as the Paigah holder (in case of Paigahs) who, in addition
to his own shares, was entitled in respect of the management, a specific
share in the income of the estate and this right was called Haqe Inthezam
or right of management. The junior members were entitled to their shares
after deducting the Haqe Inthezam and other administrative expenses.
There used to be others also known as Guzaryats.
17. The Paigah Estate included some Zat Jagirs as distinct from
the Paigah taluks granted from time to time. They too were eventually
merged in the Paigah estates. The holder of the Paigah was called
Amir. Though the holder was the Amir, the heirs of the original grantees,
as in the case of any other Jagirs, were entitled to their respective
shares in the revenue, by inheritance, of course, after deducting the
share of the Amir and also the administrative expenses. The Amir had a
special share of his own to support his position as the head and manager
of the Paigah and its representative towards the Nizam and the public.
This share was previously unascertained. That was the reason why until
the death of Sir Khurshid Jah and the other respective holders of the
Paigah, the Amirs were practically the only persons to be considered
and they could take for themselves what part of the income they thought
fit.
18. In order to remedy the injustice caused by such arbitrary and
capricious way of appropriation of the income, several committees came
up with proposals. Sir Brain Egerton's Committee proposed among other
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things that the Amir should be allowed to take 11D 2 annas in the rupee
of the gross income of the Paigah. The Reilly Commission proposed
that Amir should take a definite portion of the net, instead of the gross
income of the Paigah. In fact, in respect of Jagirs there was also a
Farman of 1340 H that the manager should be allowed 4 annas in the
rupee of the net income.
19. Sir Khurshid Jah died on Rabi-al-Thani, 1320 H (July, 1902)
leaving behind him surviving, two sons, by name Imam Jung and Zafar
Jung as his only recognised legitimate heirs. As already stated, any grant
of Jagir, on the death of the grantee would lapse to the Crown and a
fresh grant could be made to any of the heirs of the previous grantee.
The Nizam had ample powers to resume the Jagirs or to appoint any
person, be he the eldest son or not, as the Amir or make any other
arrangements.
20. On the death of Sir Khursid Jah, no Amir was appointed by
the Nizam in relation to that Paigah until 1345 H (February, 1927) and
no member of the family was put in complete charge of the Paigah.
Nawab Zafar Jung, under a Farman issued a few weeks after the death
of Sir Khurshid Jah, was put in charge of the Khurshid Jahi Paigah as a
mere supervisor and trustee to carry on the ordinary routine work and
was directed to take the Nizam's orders on all important matters and to
account for the income and expenditure of the estate.
21. The administration of this Paigah estate, as in the case of
other Paigahs in which similar arrangements were made, did not fare
better and in fact all these estates ran into huge debts. A Controller
General of Paigah Affairs called Sadr-Ul-Moham of the Paigahs was
appointed by the Nizam to undertake complete control and management
of the three Paigahs under his orders. This step proved successful and
the able and efficient management of the committee helped to build up
appreciable reserves for each of the Paigah estates after wiping out
the huge debts.
22. It was then that Lutfuddaula was appointed Amir under the
Farman dated 29thRajjab, 1345 H (2-2-1927) A.D. During the interval,
the properties left by Khurshid Jah were not permitted to be divided,
though claims were advanced by his two sons and by their children.
23. In connection with the claims made by various heirs, the Nizam
appointed as many as three Royal Commissioners: (1) The Egerton
M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S.
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Committee (2) The Glancy Commission and (3) The Reilly Commission.
24. After a careful consideration of these reports, a Farman was
issued on 17
th
January, 1929 (5
th
Shahban1347 H.) The Nizam stated
therein that in regard to the Paigah, he held a three-fold capacity (i) as
the Ruler of the State (ii) as the head of Sarf-i-khas and (iii) as the
patron of the Paigah family.
25. In Para 2 of the General Orders of the Farman, he directed
that "whatever property had hitherto been acquired or articles
purchased or buildings constructed out of the income of the Paigahs
will be considered the property of the Paigahs and not that of any
individual, and it will not be liable to division like Mathruka
property".
26. In Order II the Nizam directed that one-third of the gross
income should be appropriated for the administrative charges of the Jagir,
and the second-third would constitute the Manager's share i.e., the
Paigah Amir's share and the remaining one-third shall form the share
of the other heirs, i.e., the shareholders of the Paigah.
27. In Order III Para 9, he further directed that the precious stones,
jewellery and rare articles, which, in accordance with the principles laid
down in Para 2 of the Farman are the property of the Paigah from
olden times, or have been purchased with money belonging to the Paigahs
will remain with the Paigah Amir in trust. Paigah Amir shall not have
the right to sell, pledge, or give them to any person, but they can be lent
for temporary use to members of the Paigah family after obtaining the
Nizam's sanction from time to time, provided the Amir holds himself
responsible for their safety and careful use. In Order III Para 2, the
Nizam directed that if there is any property left as intestate property of
any Paigah, the distribution thereof shall also be settled by the Committee
appointed by the Farman.
28. The Nizam stated in Order III, Para 2 that at the time of Sir
Khurshid Jah's death, his two sons Imam Jung and Zafar Jung were his
only heirs, who, if alive then, would have been entitled to one half share
each of third part of the gross income, and that since both are dead and
the number of their survivors were large and regarding some of them
(especially among Zafar Jung's heirs) there was difference of opinion
as to the legality of certain marriages and the legitimacy of some children,
a Committee had to be appointed for the distribution of the third part of
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the gross income of the Khurshid Jahi Paigah among the heirs of
Khurshid Jah's two sons.
29. This Committee was presided over by Nawab Mirza Yar Jung,
the then Chief Justice of Hyderabad and they submitted their report on
17thJanuary, 1929. This Committee, known as the Paigah Committee,
gave a definite finding that Nawab Khurshid Jah left no property which
was not acquired or purchased out of the Paigah income within the
meaning of Para 2 of the preliminary portion of the Farman. Thus, what
was left by Sir Khurshid Jah were (1) the properties or articles purchased
or buildings constructed out of the income of the Paigahs and (2) precious
stones, jewellery and rare articles which, in accordance with the principles
laid down in the Farman are the property of the Paigahs from olden
times, or have been purchased with money belonging to the Paigahs
which are held by the Paigah Amir in trust as heirlooms of the Paigah
family. Distribution of these two classes of properties, including their
accretions, could not be made, in view of the Farman, amongst the heirs
of Nawab Sir Khurshid Jah, as they were held indivisible, impartible and
inalienable. The Amir Paigah was only a supervisor and trustee for
these properties.
30. Twenty years after this report, the political atmosphere changed
and the Jagirs and the Paigahs were abolished by means of the Jagir
Abolition Regulations (Hyderabad Regulation No. 69 of 1358 F) with
effect from 15.08.1949. The Jagirs and the properties connected with
the Jagirs were taken over by the Jagir Administrator and the Jagirdars
were declared entitled only to the commutation amount. The other
properties and estates unconnected with the Jagirs, however, were
allowed to remain with the Jagirdars.
31. In the year 1955-56, a lady by name Dildar-Un-Nissa Begum,
who was one of the lineal descendants of Khurshid Jah filed a suit in
O.S.No.41 of 1955-56 on the file of the City Civil Court, Hyderabad,
claiming (i) that the Estate left behind by Nawab Khurshid Jah was a
Mathruka Estate; and (ii) that she is entitled to 29/2944 share. It must
be mentioned at this stage that the fight in O.S. No. 41 of 1955 as it was
originally instituted, was actually between the surviving heirs of Nawab
Zafar Jung on the one hand and the surviving heirs of Nawab Imam
Jung on the other hand. (Nawab Zafar Jung and Nawab Imam Jung
were the sons of Khurshid Jah). To be precise, the surviving heirs of
Nawab Zafar Jung were arrayed as, (i) the plaintiff; and (ii) defendant
M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S.
MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]
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Nos. 1-35 and 44-49. Similarly, the surviving heirs of Nawab Imam Jung
were arrayed as defendant Nos. 36-42 and 50. Defendant No.43 was
the Jagir Administrator of the Government of Hyderabad. It may also
be mentioned here that at the time of the institution of the suit, there
were only 43 defendants with the Jagir Administrator being the last,
namely defendant No.43. However, subsequently the number of
defendants swelled to unmanageable proportions both on account of the
death of the original defendants one after the other and various other
factors which we shall see later.
32. The reliefs sought for in the suit were as follows:-
"The Plaintiff therefore prays that a preliminary decree be passed:-
(a) directing that the properties detailed in Schedule IV which are
in the possession of the part as detailed therein and the other (b)
category properties detailed in para (12) above which are in the
possession of defendant No. 43 and all other properties whatsoever
that may be found to belong to the Mathruka of the late Nawab
Khurshid Jah be divided by metes and bounds and plaintiff be
given her 29/2944th share therein;
(b) appointing, a Commissioner-Receiver to take charge of the
said properties and divide the same between persons who are
legitimately entitled thereto;
(c) directing the Defendants Nos 1 to 43 to account for all mesne
profits and income accruing in respect of the said Mathruka
properties upto the date of suit and there after during the pendence
of this suit; and
(d) restraining the defendants from changing, alienating on
encumbering any of the aforesaid properties in any manner during
the pendency of this suit. If any properties of the Mathruka estate
have been alienated by any of the defendants the same be debited
to their share or ordered to be recovered from them if it is in
excess of their share.
The plaintiff further prays that appropriate orders be passed for
payment plaintiff costs out of the Mathruka Estate.
And such further and other reliefs be granted and orders be passed
which this Hon'ble court may deem fit."
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33. For reasons which are not immediately decipherable, the said
suit filed in the City Civil Court, Hyderabad was withdrawn by the High
Court and transferred to itself for being tried and disposed of. This
withdrawal and transfer could have happened (only a presumption) either
in terms of Clause 13 of the Letters Patent or in terms of Section 24(1)(b)(i)
of the Code of Civil Procedure, 19081. It must be remembered that until
the High Court was renamed as the High Court of Andhra Pradesh in
November, 1956 under the States Reorganisation Act, 1956, the High Court
was the High Court of Hyderabad. The suit as it was originally filed was
in the year 1955-56, but the withdrawal and transfer took place in the year
1958 and the suit was re-numbered as CS No.14 of 1958.
34. Since the genesis of the present dispute should be traced to
the plaint in CS No.14 of 1958, it is necessary to extract the main part of
the plaint as such. Therefore, paragraphs 6 to 17 of the plaint read as
follows:-
"6.After the death of Nawab Khurshid Jah in 1320-H, neither the
Paigah Estate nor the Mathruka was permitted to be divided
through claims were advanced by his two sons and later by their
children. The reason for not permitting the division of the Paigah
Estate or the Mathruka of Nawab Khurshid Jahappears to be
that His Exalted Highness the Nizam was against further partition
and wanted to preserve this ancient family as a whole and preserve
its integrity, and grandeur. This is evident from the two Farmans
of His Exalted Highness dated 11thRajab 1337H, Corresponding
to 8thKhurdad 1328 Fasli and 5thShaban 1347 H, corresponding to
15thIsfandar 1338 Fasli (17. 1.1929). Copies of the said two
Farmans are herewith filed and marked II and III.
7. In connection with the claims of various heirs His Exalted
Highness the Nizam appointed as many as three Royal
Commissions namely:
(1)
The Egerton Committee,
(2)
Glancey Commission, and
(3)
Railey Commission
After considering the Reports of these three Commissions,
His Exalted Highness issued the last mentioned Farman dated
1 Hereinafter referred to as"CPC"
M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S.
MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]
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17-1-1929, (marked III supra) with a view to preserve the Paigah
Estate and perpetuate the Paigah Family.
8. In para 2 of the above-said Farman dated 17-1-1929 (marked
III) His Exalted Highness the Nizam directed as follows:-
"Whatever property has hitherto been acquired or article
purchased or building constructed out of the income of the Paigahs
will be considered the property of the Paigahs and not that of any
individual, and it will not be liable to division as an inheritance
(Mathruka)"
9. H.E.H the Nizam further directed as per the said Farman in
Order III Para 9 thereof as follows:-
"Precious Stones, Jewellery, and rare articles which in accordance
with the principles laid down in the above (Farman para 2) are the
property of the Paigahs from olden times, or have been purchased
with money belonging to the Paigahs, will remain with the Paigah
Amir in Trust as heirlooms of Paigah family. The Paigah Amir
shall not have the right to sell, pledge, or give them to any person.
They can however be lent for temporary use to members of the
Paigah family, after obtaining my sanction from time to time,
provided the Amir holds himself responsible for their safe and
careful use."
10. In order III, Para (2) of the Farman (marked III supra) H.E.H.
the Nizam referred to another and third class of property and
directed as follows:-
"If there is any property left as intestate property (Mathruka) in
any Paigah the distribution thereof shall also be settled by the
same Committee"
The Committee referred to in the portion of the Farman
extracted above is Nawab Mirza Yar Jung Committee whose report
was submitted on 9th April 1929. H.E.H. the Nizam accepted the
said report and issued a Farman accordingly.In the said report of
Mirza Yar Jung Committee, a definite finding was given that it
was not proved by claimants that Nawab Khurshid Jah left any
property which was not acquired or purchased out of the Paigah
income within the meaning of para (2) of the preliminary portion
of the Farman.
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11. By reason of the finding of the Mirza Yar Jung Committee
negativing the existence of any Mathruka acquired or purchased
from sources other than paigah income there were only two
categories of Mathruka property of Nawab Khurshid Jah viz,
(a) properties or articles purchased or buildings constructed out
of the income of the Paigah,
(b) Precious stones, Jewellery and rare articles purchased with
money belonging to the Paigah and held in trust by Paigah Amir
as heirlooms of Paigah family.
12. As per Firman dated 5th Shaban 1347 H (17-1-1929-A.D),
H.E.H. the Nizam prevented the distribution of the two classes of
Mathurka properties aforesaid and lists of properties belonging to
category (a) including all accreations and additions thereto, so far
as plaintiff is aware are set out in the schedule herewith filed and
marked IV and IV(a) are of the approximate value of
O.S.Rs.652058-2-0 and they are in the possession of persons
referred to in the said schedule. The plaintiff is not aware of the
extent and value of precious stones, jewellery and rare articles
referred to in category (b) mentioned in para 11 above. The last
mentioned properties which ought to have been in the possession
of the Defendant No.1 as Amir Paigah were left for safe-custody
in the Government Treasury during the days of police action and
subsequently passed into the custody of Jagir Administrator the
Defendant No. 43 herein. The plaintiff tentatively values the said
properties mentioned in Category (b) aforesaid at O.S. Rupees
one lakh and claims her legitimate share therein after the full extent
and value thereof are ascertained.
13. The Jagirs in Hyderabad State including Paigah having been
abolished by Jagir Abolition Regulation No. 69 of 1358 F, with
effect from 15thAugust 1949 the Said Firmans precluding the
partition of the aforesaid two categories of Mathruka properties,
ceased to be operative and plaintiff became entitled to claim her
legitimate share of Mathurka Estate of the late Nawab Khurshid.
Jah viz, her 29/2944th share which she tentatively values at the
aggregate sum of O.S. Rs 7408-1-1 as detailed in the Schedule
IV and IV(a) para 12 referred to above of the aggregate tentative
value of O.S. Rs. 752058-20.
M/s TRINITY INFRAVENTURES LTD. & ORS. ETC. v. M. S.
MURTHY & ORS. ETC. [V. RAMASUBRAMANIAN, J.]
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14. The cause of action for this suit arose at Hyderabad-Dn, On
15thAugust 1949 when the Jagir Abolition Regulation came into
force and the Firmans of H.E.H. the Nizam preventing the partition
of the suit properties ceased to be operative.The suit is in time, in
any event, as the bulk of the properties in Schedule IV And IV(a)
are immovable properties and the other properties in category (b)
And referred to in para 13 were held by the Defendant No. 1 the
Amir Paigah In trust and are now with Defendant No.43.