# TALAT FATIMA HASAN THROUGH HER CONSTITUTED ATTORNEY SH. SYED MEHDI HUSAIN v. NAWAB SYED MURTAZA ALI KHAN (D) BY LRS. & ORS

- **Citation:** [2019] 10 S.C.R. 811
- **Court:** Supreme Court of India
- **Decided:** 2019-07-31
- **Case number:** Civil Appeal No. 1773 of 2002
- **Bench:** Ranjan Gogoi, Deepak Gupta, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/talat-fatima-hasan-through-her-constituted-attorney-sh-syed-mehdi-husain-v-32982
- **Pages:** 30

## Headnote

Muslim Personal Law (Shariat) Application Act, 1937 - In
1947, on the formation of India and Pakistan, the State of Rampur
merged into the Union of India - Ruler of Rampur signed the Merger
Agreement on 15.05.49 under which he was entitled to full
ownership, use and enjoyment of all private properties (as
distinguished from State properties) belonging to him - Constitution
of India came into force on 26.01.50 - Ruler died intestate -
Certificate issued inter alia certifying the eldest son of the Ruler,
defendant no.1(since deceased) as the sole successor to his private
properties - Certificate quashed- Plaintiff-granddaughter of the
Ruler filed suit inter alia for partition of the suit properties on the
ground that the properties being his private properties, all legal
heirs were entitled to share in the property as per personal law -
Contested by the defendants on the ground that the property was
not the personal property of the Ruler but, was attached to the
'Gaddi' of the State of Rampur and thus, governed by law of
succession being rule of male priomogeniture i.e. senior most male
heir taking everything to the exclusion of all other heirs - Suit
dismissed by the High Court - On appeal, held: Definition of ruler
in Cl.(22) of Art.366 itself shows that the person who is defined as
ruler is a former prince, chief or other person, who was, on or
after 26.01.50 recognised as a ruler having signed the covenant of
accession - Such person, though defined as a 'Ruler', had no
territory and exercised no sovereignty over any subjects - They
had no land other than the private properties - Since, 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
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treated as properties attached to the Gaddi - A Gaddi or rulership
and private property have two different connotations even in the
merger agreement- Rulers enjoyed right to privy purses, private
properties and privileges only because of the Constitution and in
other respects they were ordinary citizens - Thus, on the death of
the Ruler in 1966, succession to his private properties was governed
by personal laws - Undisputedly, if personal law is to apply then
the 1937 Act will apply and since the Ruler was a Shia, his estate
will devolve under the Muslim personal law, as applicable to Shias
- During the pendency of the suit, the plaint was amended from
time to time because of the death of some of the defendants - After
the amendment, the shares of all the legal heirs were worked out in
para 9-F of the plaint - These shares have not been disputed by
any one and hence, are accepted to be correct - Parties entitled to
the property as per the shares set out in para 9-F of the plaint
which shall form part of the decree - Judgments of Single Judge
and Division Bench of the High Court, set aside - Decree passed -
No order in the Contempt Petition in view of the directions issued -
Succession -Constitution of India- Art.366(2), 363(A), 291 -
Government of India Act, 1935 - s.6.
Words & Expressions -'Gaddi' - Meaning of - Discussed.
Allowing the appeals, the Court
HELD : 1.1 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 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
paramou

## Text

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TALAT FATIMA HASAN THROUGH HER CONSTITUTED
ATTORNEY SH. SYED MEHDI HUSAIN
v.
NAWAB SYED MURTAZA ALI KHAN (D) BY LRS. & ORS.
(Civil Appeal No. 1773 of 2002)
JULY 31, 2019
[RANJAN GOGOI, CJI, DEEPAK GUPTA AND
ANIRUDDHA BOSE, JJ.]
Muslim Personal Law (Shariat) Application Act, 1937 - In
1947, on the formation of India and Pakistan, the State of Rampur
merged into the Union of India - Ruler of Rampur signed the Merger
Agreement on 15.05.49 under which he was entitled to full
ownership, use and enjoyment of all private properties (as
distinguished from State properties) belonging to him - Constitution
of India came into force on 26.01.50 - Ruler died intestate -
Certificate issued inter alia certifying the eldest son of the Ruler,
defendant no.1(since deceased) as the sole successor to his private
properties - Certificate quashed- Plaintiff-granddaughter of the
Ruler filed suit inter alia for partition of the suit properties on the
ground that the properties being his private properties, all legal
heirs were entitled to share in the property as per personal law -
Contested by the defendants on the ground that the property was
not the personal property of the Ruler but, was attached to the
'Gaddi' of the State of Rampur and thus, governed by law of
succession being rule of male priomogeniture i.e. senior most male
heir taking everything to the exclusion of all other heirs - Suit
dismissed by the High Court - On appeal, held: Definition of ruler
in Cl.(22) of Art.366 itself shows that the person who is defined as
ruler is a former prince, chief or other person, who was, on or
after 26.01.50 recognised as a ruler having signed the covenant of
accession - Such person, though defined as a 'Ruler', had no
territory and exercised no sovereignty over any subjects - They
had no land other than the private properties - Since, 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
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treated as properties attached to the Gaddi - A Gaddi or rulership
and private property have two different connotations even in the
merger agreement- Rulers enjoyed right to privy purses, private
properties and privileges only because of the Constitution and in
other respects they were ordinary citizens - Thus, on the death of
the Ruler in 1966, succession to his private properties was governed
by personal laws - Undisputedly, if personal law is to apply then
the 1937 Act will apply and since the Ruler was a Shia, his estate
will devolve under the Muslim personal law, as applicable to Shias
- During the pendency of the suit, the plaint was amended from
time to time because of the death of some of the defendants - After
the amendment, the shares of all the legal heirs were worked out in
para 9-F of the plaint - These shares have not been disputed by
any one and hence, are accepted to be correct - Parties entitled to
the property as per the shares set out in para 9-F of the plaint
which shall form part of the decree - Judgments of Single Judge
and Division Bench of the High Court, set aside - Decree passed -
No order in the Contempt Petition in view of the directions issued -
Succession -Constitution of India- Art.366(2), 363(A), 291 -
Government of India Act, 1935 - s.6.
Words & Expressions -'Gaddi' - Meaning of - Discussed.
Allowing the appeals, the Court
HELD : 1.1 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 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. The rulers were rulers only
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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.
[Paras 12, 32, 33] [822-B-C; 833-B-C; F]
1.2 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. The President while exercising his powers under
Article 366 (22) could not notify a ruler at his whims and fancy.
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, 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. [Paras 34-36] [833-G-H; 834-A-E]
1.3 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, it is
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. In Rajpal Hindi Shabdkosh, Gaddi has been given various
meanings including small mattress, seat of an exalted person,
TALAT FATIMA HASAN v. NAWAB SYED MURTAZA ALI
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title of a ruler. In the Oxford Hindi-English Dictionary, the
meanings given are cushion, throne, royal seat, etc. Property is
not mentioned as one of the attributes of a Gaddi. 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. 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.
[Paras 37-39] [834-E-H; 835-A-D]
1.4 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. 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. On the death of the ruler, Nawab RAK in the year 1966,
succession to his private properties was governed by personal
laws. The succession to the estate of Nawab 'RAK' 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. No force in this contention
because in Article 362 reference is made only to the personal
rights, privileges and dignities of the ruler of an Indian State and
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rights would not include succession to personal properties.
[Paras 40, 41 and 42] [835-E-H; 836-A-B; H; 837-A-B]
1.5 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 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. A contradiction is found 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. 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 'RAK'
was a Shia, his estate will devolve upon his heirs under the
Muslim personal law, as applicable to Shias. [Paras 43, 44 and
45] [837-C-H; 838-A-C]
1.6 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 9-F of the
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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 9-F of the plaint which shall form a part
of the decree. The judgments of Single Judge and Division Bench
of the High Court of Judicature at Allahabad are set aside, and
the shares of the properties are determined in terms of Para 9-F
of the plaint. A decree is passed. I.A. No. 3 of 2014 is dismissed.
The applicants shall, however, be at liberty to file a Civil Suit to
establish their rights. [Paras 46-49] [838-D-F; 839-A-H;
840-A-B]
Visweshwar Rao v. The State of Madhya Pradesh
[1952] SCR 1020 ; Sudhansu Shekhar Singh Deo v.
State of Orissa [1961] 1 SCR 779 - relied on.
K. S. V. R. Singh v. Union of India & Ors. (1969) 3
SCC 150 : [1970] 2 SCR 631 ; Revathinnal B. Varma
v. H. H. Padmanabha Dasa (1993) Supp. 1 SCC 233 :
[1991] 3 Suppl. SCR 30 ; Pratap Singh v. Sarojini Devi
(1994) Supp. 1 SCC 734 : [1993] 1 Suppl. SCR 607;
Madhav Rao Scindia, Etc. v. Union of India (1971) 1
SCC 85 : [1971] 3 SCR 9; Raghunathrao Ganpatrao
v. Union of India (1994) Supp. (1) SCC 191 : [1993] 1
SCR 480 - referred to.
Case Law Reference
[1952] SCR 1020
relied on
Para 14
[1961] 1 SCR 779
relied on
Para 15
[1970] 2 SCR 631
referred to
Para 16
[1991] 3 Suppl. SCR 30
referred to
Para 18
[1993] 1 Suppl. SCR 607
referred to
Para 20
[1971] 3 SCR 9
referred to
Para 29
[1993] 1 SCR 480
referred to
Para 41
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1773
of 2002.
From the Judgment and Order dated 22.01.2002 of the High Court
of Judicature at Allahabad in Special Appeal No. 976 of 1997.
With
C.A. No. 4012/2002, CONMT.PET.(C) No. 1079/2018 in
C.A. No. 1773/2002.
Sudhir Chandra, Kailash Vasdev, Huzefa Ahmadi, A.K. Ganguli,
Raju Ramachandran, Ms. Tehmina Punwani, Sr. Advs., Parijat Sinha,
Ms. Shahrukh Alam, Gaurav Ghosh, Zulnoor Ali Ahemd, Rudra Dutta,
Satish Vig, Ranbir Singh Yadav Praveen Agrawal, Ranbir Singh Yadav,
Puran Mal Saini, Ms. Anzu K. Varkey, B. Rajesh, P. Kakra, Saurabh S.
Sinha, Shankar N., Aditya Dev Triguna, Ranbir Singh Yadav, D. L.
Chidananda, Ms. Rukhmini Bobde, Ms. Anil Katiyar, B.V. Balaram Das,
Yatish Mohan, Ms. Vinita Y. Mohan, E.C. Vidya Sagar, Subhash Chandra
Sagar, Ms. Reshmi Rea Sinha, Devesh Mishra, Samar Ali Khan, Abhishek
Singh, Satish Vig, Rameshwar Prasad Goyal, Deba Prasad Mukherjee,
D.N. Goburdhan, Tarun Gupta, Imran Ali, Ms. Puja Sharma, Advs. for
the appearing parties.
The Judgment of the Court was delivered by
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
sub-continent 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
TALAT FATIMA HASAN v. NAWAB SYED MURTAZA ALI
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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.
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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.
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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.
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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
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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)
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(2)
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(3)
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(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
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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
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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. O n e
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 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
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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 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 ex-Ruler and those privileges do
not extend to his personal property......"
2 (1961) 1 SCR 779
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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 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
3 (1969) 3 SCC 150
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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
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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 three-Judge 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 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.
4 (1993) Supp. 1 SCC 233
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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 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
5 (1994) Supp. 1 SCC 734
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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.