# SAHIBZADA SAIYED MUHAMMED AMIRABBAS ABBASI & OTHERS v. THE STATE OF MADHYA BHARAT & OTHERS

- **Citation:** [1960] 3 S.C.R. 138
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Bench:** B. P. Sinha, Jafer Imam, A.K. SARKAit. K. N. WANCHOOAND J.C. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sahibzada-saiyed-muhammed-amirabbas-abbasi-others-v-the-state-of-madhya-bharat-1822
- **Pages:** 6

## Headnote

Personal Law-Right to Guardianship-If can be enforced by
way of constitutional remedy-Constitution of India, Art. 32.
The first petitioner, who had migrated to West Pakistan,
applied to the High Court of Madhya Bharat for a writ of
habeas corpus for directions to produce petitioners 2 and 3, his
minor children, before the Court on the allegation that they were
wrongfully confined and, upon the dismissal of the said application, applied to the District Judge of Ratlam under the Guardian
and Wards Act for his appointment as guardian of the person
and property of the said minors. The District Judge rejected
the application and appointed the second respondent as such
guardian. The first petitioner appealed to the High Court
against the said order of the District Judge but that appeal was
dismissed. He applied for special ·leave to appeal to this Court
but that application was also rejected. Thereafter the first
petitioner, as natural guardian of petitioners 2 and 3, filed the
present petition under Art. 32 of the Constitution. His case in
substance was that the interest of the second respondent was
adverse to that of the minors, that he had misappropriated their
property and that the first respondent, the State of Madhya
Bharat, was bound to take steps to protect the property of the
minors which it had failed to· do and had thus rendered itself
liable to make good the loss sustained by the minors in
consequence.
Held, that the petition was wholly misconceived, and must
be dismissed.
The Court can exercise jurisdiction .under Art. 32 of the
Constitution only in enforcement of the fundamental rights
guaranteed by Part III of the Constitution. Where on account
of the decision of a court of competent jurisdiction, the right
alleged by the petitioner does not exist and therefore its infringemen~ cannot arise, this Court cannot entertain a petition under
that Article for protection of the alleged right.
A claim as to denial of equality before the law or the
equal protection of the laws can be made again:»t executive
action or against legislative process but not against the decision
of a court of competent jurisdiction.
Nor can an order of this Court rejecting an application for
special leave under Art. 136 of the Constitution be circumvented
by an application for a writ under Art. 32.
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3 S.C.R. SUPREME COURT REPORTS
139
ORIGINAL JURISDICTION:
Petition No .. 217 of
'r960
1956.
Petition under Article 32 of the Constitution of Ami~~.;~:~bbasi
India for enforcement of Fundamental rights.
v.
Pandit Nanak Chand, for the petitioners.
State of M. B.
I. N. Shroff, for respondent No. 1.
1960 February, 26. The Judgment of the Court
Shah J.
was delivered by
SHAH, J.-This is a petition filed by Sahibzada
Saiyed Muhammed Amirabbas Abbasi, who will hereinafter be referred to as the first petitioner on behalf of
himself and as the natural guardian of his two minor
children, Kamal Abbas and Jehanzeb Bano, petitioners Nos. 2 and 3 against the State of Madhya Bharat
(now the State of Madhya Pradesh) and three other
respondents for an appropriate writ or writs of
Habeas Corpus, Mandamus, Certiorari, Prohibition
and any other writ, direction or order directing the
State of Madhya Bharat immediately to assume
charge of the properties of the minor petitioners
2 and 3 and determining the a.mount of loss sustained
by the minors and calling upon the State of Madhya
Bharat and the other respondents to compensate the
minors for the full value of the property lost due to
their negligence in the discharge of their respective
duties in failing to protect the minors' properties, and
calling upon the 4th respondent to produce the
minors before this court and directing that the minors
be handed over to the custody of some relation who
is competent under the Personal Law to have their
custody, and calling upon the Chief Secretary of the
State of Madhya Bharat to furnish full particulars of
the trust property released in favour of the 2nd
respondent and directing the

## Text

February 26
•
138
SUPREME COURT REPORTS
SAHIBZADA SAIYED MUHAMMED
AMIRABBAS ABBASI & OTHERS
v.
THE STATE OF MADHYA BHARAT
& OTHERS
[1960]
(B. P. SINHA, C.J., JAFER IMAM, A.K. SARKAit.
K. N. WANCHOOAND J.C. SHAH, JJ.)
Personal Law-Right to Guardianship-If can be enforced by
way of constitutional remedy-Constitution of India, Art. 32.
The first petitioner, who had migrated to West Pakistan,
applied to the High Court of Madhya Bharat for a writ of
habeas corpus for directions to produce petitioners 2 and 3, his
minor children, before the Court on the allegation that they were
wrongfully confined and, upon the dismissal of the said application, applied to the District Judge of Ratlam under the Guardian
and Wards Act for his appointment as guardian of the person
and property of the said minors. The District Judge rejected
the application and appointed the second respondent as such
guardian. The first petitioner appealed to the High Court
against the said order of the District Judge but that appeal was
dismissed. He applied for special ·leave to appeal to this Court
but that application was also rejected. Thereafter the first
petitioner, as natural guardian of petitioners 2 and 3, filed the
present petition under Art. 32 of the Constitution. His case in
substance was that the interest of the second respondent was
adverse to that of the minors, that he had misappropriated their
property and that the first respondent, the State of Madhya
Bharat, was bound to take steps to protect the property of the
minors which it had failed to· do and had thus rendered itself
liable to make good the loss sustained by the minors in
consequence.
Held, that the petition was wholly misconceived, and must
be dismissed.
The Court can exercise jurisdiction .under Art. 32 of the
Constitution only in enforcement of the fundamental rights
guaranteed by Part III of the Constitution. Where on account
of the decision of a court of competent jurisdiction, the right
alleged by the petitioner does not exist and therefore its infringemen~ cannot arise, this Court cannot entertain a petition under
that Article for protection of the alleged right.
A claim as to denial of equality before the law or the
equal protection of the laws can be made again:»t executive
action or against legislative process but not against the decision
of a court of competent jurisdiction.
Nor can an order of this Court rejecting an application for
special leave under Art. 136 of the Constitution be circumvented
by an application for a writ under Art. 32.
-
-
3 S.C.R. SUPREME COURT REPORTS
139
ORIGINAL JURISDICTION:
Petition No .. 217 of
'r960
1956.
Petition under Article 32 of the Constitution of Ami~~.;~:~bbasi
India for enforcement of Fundamental rights.
v.
Pandit Nanak Chand, for the petitioners.
State of M. B.
I. N. Shroff, for respondent No. 1.
1960 February, 26. The Judgment of the Court
Shah J.
was delivered by
SHAH, J.-This is a petition filed by Sahibzada
Saiyed Muhammed Amirabbas Abbasi, who will hereinafter be referred to as the first petitioner on behalf of
himself and as the natural guardian of his two minor
children, Kamal Abbas and Jehanzeb Bano, petitioners Nos. 2 and 3 against the State of Madhya Bharat
(now the State of Madhya Pradesh) and three other
respondents for an appropriate writ or writs of
Habeas Corpus, Mandamus, Certiorari, Prohibition
and any other writ, direction or order directing the
State of Madhya Bharat immediately to assume
charge of the properties of the minor petitioners
2 and 3 and determining the a.mount of loss sustained
by the minors and calling upon the State of Madhya
Bharat and the other respondents to compensate the
minors for the full value of the property lost due to
their negligence in the discharge of their respective
duties in failing to protect the minors' properties, and
calling upon the 4th respondent to produce the
minors before this court and directing that the minors
be handed over to the custody of some relation who
is competent under the Personal Law to have their
custody, and calling upon the Chief Secretary of the
State of Madhya Bharat to furnish full particulars of
the trust property released in favour of the 2nd
respondent and directing the 1st respondent to
produce in this court the box of jewellery entrusted
to it with full particulars' regarding its custody f.t:om
March 29, 1948, and ascertaining whether the contents have been misappropriated and further ascertaining- the loss, if any, occasioned to the minor
petitioners and its quantum and declaring liability of
the respondents in that behalf and for further relief
which the court may award in the circumstances of
the case, as just and proper.
140
SUPREME COURT REPORTS
[1960]
I96o
Prima facie, the reliefs claimed are not within the
~ 5
scope of a petition for a writ under Art. 32 of the
Ami;~bb~~:bbasi Constitution. This court has power under that Article .
v.
to issue directions, orders or writs, including writs in
State of M. B. the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari whichever may be approShah J.
priate for the <mforcement of any of the fundamental
rights; but by this petition, the first petitioner claims
on the plea that the respodents have misappropriated
or misapplied the property of petitioners 2 -and 3, a
writ or writs directing that Joss sustained _by the
minors be ascertained and made good and also asks
this court to provide for the custody of the minors
according to their Personal Law.
The facts which give rise to the petition are these:
The first petitioner married in 1940 one N aiyar
J ahan Begam and by her he had two childrenpetitioners 2 and 3.
Naiyar Jahan Begam died in the
year 1943 and petitioners 2 and 3 were thereafter
looked after by Musharraf Jahan Begam, mother of
Naiyar Jahan Begam. From her father Naiyar Jahan
Begam had inherited certain valuable property and
from her mother, Musharraf Jahan Begam, she had
received a dowry of substantial value at the time of
her marriage. Before she died on March 6, 1949,
Musharraf Jehan Begam had made a trust in respect
of certain property of the benefit of petitioners 2 and
3. The first petitioner had after the death of Naiyar
Johan Begam contr_acted a second marriage and of
that marriage there were three children. During the
life of Musharraf J ehan Begam the first petitioner
took no interest in petitio.ners 2 and 3 and at sometime in the year 1948, he migrated to West P.akistan
and took up residence in Rawalpindi.
After the
death of Musharraf Jehan Begam, the first petitioner
applied to the Madhya Bharat High Court for a writ
in the nature of habeas corpus for a direction to
produce petitioners 2 and 3 before the court on the
allegation that the latter were wrongfully detained.
The High Court refused to give the direction and
ordered that the first petitioner might, if so advised,
apply under the Guardian and Wards Act for appropriate relief.
The first petitioner then applied to the
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3 S.C.R .. SUPREME COURT REPORTS
141
court of the District Judge at Ratlam for an order
I960
that he be appointed a guardian of- the person and
s. s. Md.
property of petitioners 2 and 3. On November 23, Amirabbas Abbasi
1949, the second respondent, Sultan Hamid Khan,
v.
cousin of Musharraf J ehan Begam applied that he be
State of M: B.
appointed guardian of the person an~ property of
petitioners ~ and 3 and by order dated December 5,
1949, the District Court appointed him guardian and
rejected the application filed by the first petitioner.
· Against the order passed by the District Court,
Ratlam, Appeal No. 20of1950 was filed in the High
Court of Madhya Bharat. This appeal was dismissed on March 29; 1954. An application for special ·
leave to appeal to this court under Act. 136 against
that order of the High Court was rejected on N @vember 12, 1956.
The first petitioner had, in the meantime, applied
to this court under Art. 32 of the Constitution for the
reliefs which have already been set out. To this
petition, petitioners 2 and 3 were impleaded as party
.petitioners, the first petitioner alleging that he was
their natural guardian and next friend. Evidently,
the first petitioner could not claim to be the next
friend of the minor petitioners 2 and 3, a guardian of
their person and property having been appointed by
the District Court, Ratlam, unless this court for
reasons to be recorded deemed it to be for the welfare
of the minors that the first petitioner be permitted to
act or be appointed as the case may be (vide 0. 32,
r. 4 of the Code of Civil Procedure). The first petitioner did not obtain any order of this court permitting him to act as the next friend of petitioners 2 and
3 notwithstanding the order passed by the District
Court appointing respondent No. 2 as their guardian.
The petition filed by the first petitioner is a somewhat prolix document. The first petitioner claimed
that the interest of the second respondent who was
appointed a guardian by the District Court was
adverse to the interests of the minors, and that the
latter was, in any event, unfit to be appointed a
guardian of the minors, that the second respondent
had misappropriated the property of the minors and
that he was not looking after the. minors and was
Shah ].
142
SUPREME COURT REPORTS
[1960]
z96o
acting contrary to their interest and that proceedings
s. s. Md.
in th~ ?istrict Cour.t "'.ere vitiated on acco:unt of
Amirabbas Abb,.i ' partiality and collus10n ' and by reason of deliberate
v,
violation of the order passed by the High Court. The
State of M. B. petitioner also claimed that the State of Madhya
Bharat was bound to take steps to protect the entire
Shah J.
property of the minor petitioners 2 and 3, but the
first respondent had neglected to do so and had thereby rendered itself liable to make good the loss.
On these allegations, the first petitioner submitted
that the minor petitioners were deprived of the equal
protection of the laws in force including the Personal
Law and were accordingly discriminated against and
their property was, by reason of such· discrimination
in serious danger of being wasted or mis-appropriated.
He also submitted that he could not be denied his
rights under the Personal Law governing the minors
as their natural guardian, merely because he had
acquired a foreign domicile.
Exercising jurisdiction under Art. 32 of the Constitution, this court may grant relief for enforcement,
only of the rights conferred by Part III of the Constitution. The alleged right of the first petitioner to
guardianship of his minor children under the Personal
Law is not one of the fundamental rights guaranteed
to him by the Constitution; nor by appointing respondo;int No. 2 as the guardian of the minors under
the Guardian and Wards Act is discrimination
practised against the minors. The second respondent
was appointed guardian of the minors by order of a
competent court, and denial of equality before the
law or the equal protection of the laws can be claimed
against executive action or legislative process but not
against the decision of a competent tribunal. The
remedy of a person aggrieved by the decision of μ,
competent judicial tribunal is to approach for redress
a superior tribunal, if there be one.
In the present
case, against the order of the District Court appointing the second respondent the guardian of the person
and property of the minors, an appeal was preferred
to the High Court and that appeal was dismissed.
Even an application for special leave to appeal to this
court was rejected, and the order of the District Court
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3 S.C.R. SUPREME COURT REPORTS
143'
became final. If, since the date on which the order
z96o
appointing the guardian of the minors, events have
s s Md
transpired· which necessitate a modification of that Amir~bb~s Abbasi
order, the proper remedy of the first petitioner is to
v.
apply to the District Court for relief in that behalf State of M. B.
and not to approach this court for a writ under Art. 32
of the Constitution. This court has rejected the appliShah J.
cation for special leave tq appeal under Art. 136; and
that' order cannot be circumvented by resorting to an
application for a writ under Art. 32. Relief under
Art. 32 for enforcement of a right conferred by ch; III
can be granted only on proof of that right and infringement thereof, and if, by the adjudication by a
court of competent jurisdiction the right claimed has
been negatived, a petition to this court under Art. 32
of the Constitution for enforcement of that right, notwithstanding the adjudication of the civil court, cannot
be entertained.
The relief claimed by the first petitioner for assessing the liability of the respondents on the plea tha~
they have either misappropriated the estate or by
negligence caused loss to the estate of the minors, may
be obtained in a properly constituted suit and not in
a petition under Art. 32 of the Constitution. The property to which the minors are or may be entitled may
be ascertained in a proceeding under the Gua;dian
and Wards Act or in a suit in the civil court ana not
in a petition under Art. 32 of the Constitution.
In our judgment, the petition is wholly miscon~
ceived and must be dismissed with costs payable by
the first petitioner personally.
Petition dismissed.