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 ...
No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1773 OF 2002
TALAT FATIMA HASAN THROUGH HER
CONSTITUTED ATTORNEY SH. SYED
MEHDI HUSAIN …APPELLANT(S)
Versus
NAWAB SYED MURTAZA ALI KHAN (D)
BY LRS. & ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 4012 OF 2002
CONTEMPT PETITION (CIVIL) NO. 1079 OF 2018
IN
CIVIL APPEAL NO. 1773 OF 2002
J U D G M E N T
Deepak Gupta, J.
1. “Whether succession to the properties declared by an
erstwhile ruler to be his private properties in the agreement of
accession with the Dominion of India will be governed by the
1
rule of succession applicable to the “Gaddi” (rulership) or by
the personal law applicable to the ruler”, is the question for
consideration in the present appeals.
2. The British Government decided to withdraw from the
Indian subcontinent and the plan in this regard was published
on 03.06.1947 which envisaged the formation of two countries,
India and Pakistan. As per the Indian Independence Act, 1947
two independent Dominions – India and Pakistan were created.
The ruling princes had the right to decide to which Dominion,
India or Pakistan, they were to cede to. Section 6 of the
Government of India Act, 1935 provided that an instrument of
accession was to be executed by the ruler of the State. Various
rulers signed instruments of accession on various dates. Some
immediately on 15.08.1947 and some much later. Some rulers
voluntarily ceded their territories to the Indian Union and some
had to be cajoled to do so. In the various talks held by the
Indian Government and the princely States it was decided to
give some privileges and perquisites to the rulers. The
privileges which were to be granted to the rulers included
exemption from the operation of certain laws, the enjoyment of
2
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
3
Constitution of India, 1950. He expired on 06.03.1966. It is
not disputed that Nawab Raza Ali Khan died intestate.
4. The relevant provisions of the instrument of accession
executed on 15.05.1949 between the Governor General of India
and the Nawab of Rampur read as follows:
“ARTICLE 2
The Nawab shall continue to enjoy the same
personal rights, privileges, immunities, dignities and titles
which he would have enjoyed had this agreement not been
made.
xxx xxx xxx
ARTICLE 4
The Nawab shall be entitled to the full ownership,
use and enjoyment of all private properties (as distinct
from State properties) belonging to him on the date of this
agreement.
The Nawab will furnish to the Dominion Government
before the 30
th
June 1949 an inventory of all the
immovable property, securities and cash balances held by
him as such private property.
If any dispute arises as to whether any item of
property is the private property of the Nawab or State
property, it shall be referred to a judicial officer nominated
by the Government of India and the decision of that officer
shall be final and binding on both parties.
xxx xxx xxx
ARTICLE 6
The Dominion Government guarantees the
succession according to law and custom to the gaddi of the
State and to Nawab’s personal rights, privileges,
immunities, dignities and titles.”
4
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
5
assurances given under any such covenant or agreement,
which the ruler had entered into with Dominion of India in
respect to the personal rights, privileges and dignities of the
ruler of an Indian State. Article 363 barred the jurisdiction of
the Courts to entertain disputes arising out of such treaties,
agreements, covenants, etc. entered into or executed before the
commencement of the Constitution by any ruler of an Indian
State to which the Government of the Dominion of India or any
of its predecessor government was a party. In clause (22) of
Article 366, Ruler was defined as follows:
“366.Definitions. In this Constitution, unless the context
otherwise requires, the following expressions have the
meanings hereby respectively assigned to them, that is to say
(1) xxx xxx xxx
(2) xxx xxx xxx
(3) xxx xxx xxx
(22) “Ruler” in relation to an Indian State means the
Prince, Chief or other person by whom any such covenant or
agreement as is referred to in clause (1) of Article 291 was
entered into and who for the time being is recognised by the
President as the Ruler of the State, and includes any person
who for the time being is recognised by the President as the
successor of such Ruler;”
7. After the death of Nawab Raza Ali Khan, the President
of India in terms of clause (22) of Article 366 recognised his
eldest son Nawab Syed Murtaza Ali Khan, defendant no. 1
6
(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 26
th
Constitution amendment, the
Constitution of India was amended. Articles 291 and 362 were
7
repealed. Article 363A was added and the definition of ruler in
clause (22) of Article 366 was amended. In view of the
amendments so made, the plaintiff on 07.01.1972 withdrew the
suit filed in the year 1970 with liberty to file a fresh suit and, in
fact, filed a fresh suit on the same date. This suit was filed
before the District Judge, Rampur and the present proceedings
arise out of the said suit. It would also be pertinent to mention
that both in the suit filed in the year 1970 and in the suit filed
in the year 1972, the District Judge, Rampur had ordered that
the defendant no. 1 would not transfer or otherwise dispose of
the properties till further orders of the court.
9. This Court, in the appeal filed by the defendant No. 1
against the judgment of the Delhi High Court, declined to
interfere with the order quashing the certificate due to the
pendency of civil litigation between the parties for the same
property. It further directed that the certificate which had been
quashed would not be set up by either party in support of the
claim of the plaintiff or the defendants in the suit which had
been filed in the meantime. Therefore, this certificate cannot
be taken into consideration while deciding these proceedings.
8
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
9
succession, he was an ordinary citizen of the country. On the
other hand, the case of the defendants was that the property
was not, strictly speaking, the personal property of the Nawab.
According to the contesting defendants, the property was
attached to the ‘Gaddi’ of the State of Rampur and, therefore, it
was governed by the law of succession which was admittedly
applicable to the rulership of Rampur which was the rule of
male lineal primogeniture which basically means that the
senior most male heir takes everything to the exclusion of all
other heirs. It was also urged that the property was an
impartible estate and, therefore, the rule of primogeniture
would govern the same.
12. The facts are not in dispute. It is also not disputed
that the Muslim Personal Law (Shariat) Application Act, 1937
was applicable to the State of Rampur. The only issue to be
decided is whether the properties held by Nawab Raza Ali Khan
would devolve on his eldest son by applying the rule of
primogeniture or would be governed by Muslim Personal Law
(Shariat) Application Act, 1937 and devolve on all his legal
heirs.
10
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
Pradesh
1
. In that case, some portion of the properties
belonging to the ruler and declared as private properties in the
covenant of merger were sought to be taken over by the State
under the Central Provinces & Berar Abolition of Proprietary
Rights (Estates, Mahals, Alienated Lands) Bill, 1949.One of
the challenges was that the property of the Maharaja declared
to be his private property could not be taken over by the State
as it contravened the provision of Article 362 of the
1 [1952] S.C.R. 1020
11
Constitution. Justice M.C. Mahajan, dealing with the said
contention held as follows:
“It is true that by the covenant of merger the properties of the
petitioner became his private properties as distinguished from
properties of the State but in respect of them he is in no better
position than any other owner possessing private property.
Article 362 does not prohibit the acquisition of properties
declared as private properties by the covenant of merger and
does not guarantee their perpetual existence. The guarantee
contained in the article is of a limited extent only. It assures
that the Rulers’ properties declared as their private properties
will not be claimed as State properties. The guarantee has no
greater scope than this. That guarantee has been fully
respected by the impugned statue, as it treats those properties
as their private properties and seeks to acquire them on that
assumption……….”
Justice Das in his concurring judgment held as
follows:
“The guarantee or assurance to which due regard is to be had
is limited to personal rights, privileges and dignities of the
Ruler qua a Ruler. It does not extend to personal property
which is different from personal rights.”
15. The next judgment relied upon is Sudhansu Shekhar
Singh Deo v. State of Orissa
2
. The facts of this case were
that the ruler of the erstwhile State of Sonepur, executed a
merger agreement with the Dominion of India, the terms of
which were identical to the Rampur merger agreement.
Agricultural income in the State of Orissa was subjected to
2 (1961) 1 SCR 779
12
taxation under the provisions of the Orissa Agricultural Income
Tax Act, 1947. The ruler of Sonepur filed a petition and
contended that as ruler of the State, before merger of the State,
he was immune from liability of taxation in respect of his
private properties both within his territory and outside. It was
claimed that as far as the properties within his State were
concerned, he being the Sovereign was not liable to pay any tax
and as far as the properties outside the State were concerned,
he was not liable to pay tax in view of the provisions of the
International Law. According to him, since his privileges and
immunities were protected by the merger agreement, he could
not be asked to pay tax. Repelling his contention, the
Constitution Bench of this Court held as follows:
“…..The privileges guaranteed by Arts. 4 and 5 are personal
privileges of the appellant as an exRuler and those privileges
do not extend to his personal property……”
16. Mr. Sudhir Chandra, learned senior counsel for the
appellant placed strong reliance on the judgment of this Court
in K. S. V. R. Singh v. Union of India & Ors.
3
, hereinafter
referred to as ‘the Dholpur case’. The facts were that when the
Dholpur State merged in the Union of India, Maharaja
3 (1969) 3 SCC 150
13
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.
14
17. Thereafter, the nephews of the late ruler filed a petition
in which it was urged that the estate left behind by Rana
Udaibhan Singh, the ruler of Dholpur was an impartible estate
and was to be governed by the rule of male lineal
primogeniture. It was contended that as per the terms of the
merger agreement, the Dominion Government had guaranteed
succession according to the law of succession of the ‘Gaddi’ of
the State and, therefore, the petitioners were entitled to be
declared rulers and also entitled to the property. The
Constitution Bench held as follows:
“6.…..It is manifest that the right to private properties of the
last Ruler depends upon the personal law of succession to the
said private properties. The recognition of the Ruler is a right
to succeed to the gaddi of the Ruler. This recognition of
Rulership by the President is an exercise of political power
vested in the President and is thus an instance of purely
executive jurisdiction of the President. The act of recognition
of Rulership is not, as far as the President is concerned,
associated with any act of recognition of right to private
properties……”
The Court also held as follows:
“9. The recognition of Rulership is one of personal status. It
cannot be said that claim to recognition of Rulership is either
purely a matter of inheritance or a matter of descent by
devolution. Nor can claim to recognition of Rulership be based
only on covenants and treaties. That is why Article 363 of the
Constitution constitutes a bar to interference by Courts in a
dispute arising out of treaties and agreements. No claim to
recognition of Rulership by virtue of a Covenant is justiciable
in a Court of law. The Constitution, therefore, provided for the
15
act of recognition of the Rulership by the President as a
political power.
10. It has to be recognised that the right to private properties
of the Ruler is not embraced within clause (22) of Article 366
of the Constitution which speaks of recognition of a Ruler by
the President.
11. Counsel on behalf of the petitioner contended that the
recognition of a Ruler itself instantaneously invested the Ruler
with property and that Rulership and property were blended
together. An illustration of combination of office and property
in the case of Mathadhapati was cited as an analogy. The
property is an appendage to the office in the case of Maths.
The example of the office of a trustee furnishes the answer
where office and properties are vested in the trustee. It cannot
be said that recognition of Rulership is bound up with
recognition of private properties of the Ruler because the
former is within the political power of the President and the
latter is governed by the personal law of succession.
Recognition of Rulership by the President is not recognising
any right to private properties of the Ruler because recognition
of Rulership is an exercise of the political power of the
President. The distinction between recognition of Rulership
and succession to private properties of the Ruler has to be
kept in the forefront. The rights to private properties of Rulers
are not the matters of recognition of Rulership. The
recognition of Rulership is not an indicia of property but it
entitles the Ruler to the enjoyment of the Privy Purse
contemplated in Article 291 and the personal rights, privileges
and dignities of the Ruler of an Indian State mentioned in
Article 362 of the Constitution. Therefore, recognition of
Rulership is not a deprivation of right to property. If the
petitioner has any claim to any private property said to belong
to the last Ruler, the petitioner has not established any such
claim in any court of law. It was said on behalf of the
petitioner that the Ruler after recognition by the President
came to possess private properties said to belong to the last
Ruler. If the petitioner has any competing rights with the
Ruler in relation to such private properties such a claim is
neither a fundamental right nor is it comprised in the act of
recognition of a Ruler by the President.”
16
18. A decision of threeJudge Bench of this Court in the
case of Revathinnal B. Varma v. H. H. Padmanabha Dasa
4
,
hereinafter referred to as ‘the Travancore case’, has been relied
upon by both the sides. The facts of this case are that Shri
Padmanabha Dasa Bala Rama Verma was the Maharaja of
Travancore and the sovereign ruler thereof. The State of
Travancore merged with the erstwhile Cochin State and became
a part of the territory of the Dominion of India w.e.f.
01.07.1949. A covenant was entered into by the Maharaja with
the Union of India, the terms of which are similar and the
properties which were subject matter of the dispute were
declared to be the private properties of the Maharaja. A suit
was filed by Revathinnal Balagopala Varma, one of the family
members of the Maharaja in which it was claimed that the
Maharaja was not the sole owner of these properties even
though they were declared to be the private properties of the
ruler. It was urged that the ruler held these properties as
Karnavan of an undivided marumakkathayam tarwad or a
sthanee of an impartible estate. The argument raised was that
the properties comprised an impartible estate. Though
4 (1993) Supp. 1 SCC 233
17
succession to the estate was earlier governed by the rule of
primogeniture, in view of the fact that the Maharaja had ceased
to be the ruler on 01.07.1949, the properties became properties
of the family or tarwad to which the ruler belonged and,
therefore, the impartible estate became a partible estate when
the Hindu Succession Act, 1956 came into force on
17.06.1956.
19. It was not disputed that as far as the position before
accession was concerned the properties devolved from ruler to
ruler by applying the rule of primogeniture. This Court
negated the argument holding that after signing of the merger
agreement, the properties became the private properties of the
Maharaja and did not belong to an undivided family. It was
held that when the Maharaja was the sovereign of the State of
Travancore, he could exercise his sovereign rights of ownership
on all the properties and there was no distinction between
private properties and properties of the State. No distinction
could be drawn between private properties and properties of
the State on the principle that a sovereign never dies and the
succession to the next ruler takes place without there being a
18
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 Devi
5
, 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 20
th
century. The British Government withdrew his powers as ruler
in the year, 1923. In 1928, the Maharaja was formally deposed
from the Gaddi and exiled. He, thereafter, resided in
Kodaikanal in Tamil Nadu till his death in 1942. He left behind
his wife Sarojini Devi, three sons Pratap Singh, Kharagh
Singh, Gurbaksh Singh and two daughters Kamla Devi and
5 (1994) Supp. 1 SCC 734
19
Vimla Devi. The eldest son Pratap Singh was recognised by the
British Government as the ruler of Nabha and he later entered
into an agreement of merger with the Dominion of India.
Sterling Castle was mentioned in the list of his private
properties.
21. It would be pertinent to mention here that the British
Government had placed restrictions on the rulers with regard
to the purchase of properties outside their own State. A
property known as ‘Sterling Castle’ situated in Shimla was
purchased by Maharaja Ripudaman Singh in the name of his
friend Dr. Tehl Singh on 21.12.1921 when he was still the
Maharaja. On 30.04.1952, Dr. Tehl Singh executed a
relinquishment deed and conferred title of the property upon
the three sons and widow of Maharaja Ripudaman Singh.
Pratap Singh as the recognised ruler claimed absolute rights on
the property and denied the title of the other heirs of Maharaja
Ripudaman Singh. It was alleged that this property was
purchased out of the funds of Nabha State and the properties
were the properties of Maharaja Ripudaman Singh and,
therefore, governed by the rule of primogeniture. Sarojini Devi,
20
Kharagh Singh and minor children of Gurbaksh Singh filed a
suit for partition, etc. with regard to the property. The suit was
tried on the original side of the High Court of Himachal
Pradesh. It was held that the property was purchased benami
by Maharaja Ripudaman Singh. The learned Single Judge held
that the rule of primogeniture would not be applicable to the
personal property of the Maharaja and would only be
applicable to the property of the State. In appeal filed by
Pratap Singh, the Division Bench of the High Court held that it
had not been established that the property was purchased out
of the personal funds of Maharaja Ripudaman Singh and,
therefore, was not the personal property and hence, the suit
was dismissed and the appeal was allowed.
22. The other appeal decided by the same judgment relates
to a property situate in Civil Lines, Delhi. A suit was filed by
Pratap Singh against his mother, two brothers and two sisters.
This property was purchased in 1922 in the name of one
Gurnarain Singh Gill, but was managed by the officials of
Nabha State. This property was declared to be the personal
property of Pratap Singh, when he signed the instrument of
21
accession and on the basis, that this was his private property,
suit for possession was filed. The learned Single Judge held
that the property was of Nabha State and was not the personal
property of Maharaja Ripudaman Singh and the suit was
decreed. The Division Bench set aside the judgment of the
learned Single Judge holding that the property was the
personal property of Maharaja Ripudaman Singh and on his
death, devolved as per personal law, upon his sons. The widow
was held entitled to some share under the Hindu Women’s
Right to Property Act, 1937. The suit was accordingly
dismissed.
23. Dealing with the issue as to who was the original
owner of the properties, this Court held that when Maharaja
Ripudaman Singh was the ruler, he was the sovereign and
exercised paramount power over the entire State of Nabha. All
properties vested in him and there was no distinction between
State and personal properties. Reliance was placed upon Para
157 of the White Paper on Indian States which reads as follows:
“57.….In the past the Rulers made no distinction between
private and State property; they could freely use for personal
purposes any property owned by their respective States. With
the integration of States it became necessary to define and
22
demarcate clearly the private property of the Ruler. The
settlement was a difficult and delicate task calling for detailed
and patient examination of each case. As conditions and
customs differed from State to State, there were no precedents
to guide and no clear principles to follow. Each case,
therefore, had to be decided on its merits.”
This Court further held that the rule of impartibility and
primogeniture in relation to the zamindari or other impartible
estates must be established by proving the custom, but in the
case of a sovereign ruler, they are presumed to exist. It was
also observed that no distinction could be drawn between the
public and private property of the ruler. This Court further
went on to hold that there was no rulership in India after India
became a Republic on 26.01.1950 “but if the estate is
impartible in nature it would continue to be governed by the rule
of primogeniture”.
24. Article 12 of the instrument of merger of Nabha State
is virtually identical to Article 4 of Exhibit 4. This Court in the
Nabha case held as follows:
“78. A careful reading of Article XII shows that there is a clear
distinction between the private properties and the State
properties. Such private properties must be belonging to the
Ruler and must be in his use and enjoyment even earlier.
Therefore, properties which were recognised even earlier as
such private properties alone were to be left out and
23
submitted for the recognition as such. As stated in White
Paper (para 157, page 23 supra), the demarcation and the
settlement of the list was carried out for the purposes of
Integration. If this be the correct position of law, the contrary
observations of the learned Single Judge are not correct.”
25. We are of the view that the observations made above
run counter to what was held in the earlier part of the
judgment where in the same judgment it was held that no
distinction could be drawn between the public and private
properties of the ruler. If no such distinction could be drawn,
the question of any properties being recognised as the private
properties of the ruler prior to the State ceding to the Dominion
of India does not arise.
26. This Court held that both the properties at Shimla and
Delhi were State properties and not the personal properties of
Maharaja Ripudaman Singh and, therefore, governed by the
rule of primogeniture.
27. At the outset, we may note that both in the
Travancore case and the Nabha case, the suits had been
filed in the lifetime of the rulers, who had ceded the State to
the Indian Union. The collaterals of the rulers filed suits trying
to establish their right on the property contending that the
property had become a partible estate in the hands of the ruler.
24
As far as the Travancore case is concerned, we find that the
contesting defendants can get no benefit from this decision. It,
in fact, supports the case of the appellants inasmuch as it held
that the property in question was the personal property of the
Maharaja of Travancore and, therefore, not subject to partition.
As far as the Nabha case is concerned, we have given the facts
of that case in detail to show that the main dispute was
whether the properties were purchased by Maharaja
Ripudaman Singh out of his own personal funds or from the
funds of Nabha State. This Court held that there could be no
distinction between the private or personal properties when the
Maharaja was the sole sovereign. As Maharaja Ripudaman
Singh was the Sovereign till his powers were taken away in
1923, and before he was finally deposed in 1928, both the
properties at Shimla and Delhi were purchased when he was
the Maharaja and it was a finding of fact that these properties
were purchased out of the State funds. These properties also
found mention in the list of properties declared to be the
private properties of Maharaja Pratap Singh in the instrument
of merger. The disputes arose when Maharaja Pratap Singh
was still the ruler and was alive. The question of succession
25
had not opened. The court held that the properties being the
personal properties of the Maharaja, could not be subjected to
partition. We may, however, observe that there is a fleeting
remark that the property formed part of an impartible estate
and therefore, would be governed by the rule of primogeniture.
In our view, this question did not arise for consideration and
this Court did not decide the question as to whether the
impartible estate continued to exist after the ruler ceased to be
a ruler.
28. The other two judgments relate to issues not of
succession, but in both the judgments it was held that after
1950 ‘ruler’ for all purposes would own these properties like
any other common citizen. In Visweshwar Rao case (supra) it
was clearly held that the guarantees or assurances were limited
to the personal rights, privileges and dignities of the ruler qua a
ruler and do not extend to his personal property. Similar
observations were made in the case of Sudhansu Shekhar
Singh Deo (supra).
26
29. The High Court relied on certain observations in the
case of Madhav Rao Scindia, Etc. v. Union of India
6
, which
is commonly referred to as ‘the Princes Privy Purses case’. This
case mainly dealt with the issue as to what are the executive
powers of the State and whether the Union by executive
directions could withdraw the privy purses and other privileges
which had been guaranteed to the rulers. The Court held that
the executive had no power to flout the mandate of the
Constitution and since the guarantees given by the agreements
had been recognised in the Constitution, they could not be
taken away by the executive orders.
30. The High Court held that the judgment in the
Dholpur case had been reversed in the Princes Privy Purses
case. We are unable to agree with this finding of the High
Court. In the Dholpur case, this Court held that recognition
of rulership by the President is an exercise of “political” power
vested in the President. It was urged in the Princes Privy
Purses case that even the notification issued withdrawing the
privy purses was in exercise of the “political” power and,
6 (1971) 1 SCC 85
27
therefore, the court could not interfere in the same. What was
held in the Princes Privy Purses case with regard to these
observations was that in the Dholpur case, the Court had
improperly used the words “political power”. Justice J.C. Shah
in the Princes Privy Purses case, dealing with the Dholpur
case held as follows:
“98..….In Kunvar Shri Vir Rajendra Singh v. Union of India and
Others, 1969 (3) SCC 150, this Court negatived the claim of an
applicant that his right to property was violated because the
President accepted another claimant to the Gaddi of Dholpur
as Ruler, observing that the recognition of Rulership by the
President, in exercise of his political power, did not amount to
recognition of any right to private properties of the Ruler. The
Court did not attempt to classify the exercise of the
Presidential function under Article 366(22) as distinct from
executive functions; that is clear from the dictum that the
exercise of the President’s power was “an instance of purely
executive function”
Justice Shah, dealing with this argument held as follows:
“141….It is difficult to regard a word or a clause occurring in
a judgment of this Court, divorced from its context, as
containing a full exposition of the law on a question when the
question did not fall to be answered in that judgment.”
Justice K.S. Hegde, who was also a Member of the Bench
which decided the Dholpur case, dealing with this contention,
held as follows:
28
“178. What is said in that case is that the President while
acting under Article 366(22) is exercising his executive
jurisdiction and that jurisdiction was described as “political
power”. That expression may be inappropriate but that is not
the ratio of the decision. It was a casual observation. There is
nothing like political power under our Constitution in the
matter of relationship between the executive and the citizens.
Our Constitution recognises only three powers, viz. the
legislative power, the judicial power and the executive power.
It does not recognise any other power. In our country the
executive cannot exercise any sovereignty over the citizens.
The legal sovereignty in this country vests with the
Constitution and the political sovereignty is with the people of
this country. The executive possesses no sovereignty……”
Justice G.K. Mitter, dealing with the same contention, held that
though some observations support the contention of the
Attorney General, but they must be limited to the facts of that
case. The appellant in the Dholpur case did not claim any
right to the Gaddi but only to the private properties of the
deceased ruler and the notification issued under clause (22) of
Article 366 of the Constitution did not deal with the private
properties.
31. In our view, the judgment in the Dholpur case cannot
be said to have been set aside or upset in the Princes Privy
Purses case. What was held was that use of the expression
‘political power’ in the Dholpur case was inappropriate and
29
the appropriate words should have been ‘executive power’. In
fact, in the Dholpur case, the very next part of the sentence
reads “and is thus an instance of purely executive jurisdiction of
the President”. This clearly shows that the observations in the
Princes Privy Purses case would have no impact on the ratio
of the judgment in the Dholpur case.
32. The issue is whether the rulers continued to be rulers
after executing the instruments of merger. They had agreed to
merge their States with the Indian Union because they were to
be paid privy purses and would enjoy certain privileges. They
were also entitled to declare some properties to be their private
properties. In case of disputes whether the property is private
or State property, the Union could refer the dispute for decision
to a committee headed by a judicial officer. The rulers were no
longer sovereign. There was no paramountcy vested in the
rulers. They had no land other than the private properties.
They had no subjects. They were rulers only in name, left only
with the recognition of their original title, a privy purse, some
privileges, etc.
30
Chief Justice M. Hidayatullah (as he then was) in his
inimitable way in the Princes Privy Purses case pithily held
as follows:
“40…….Paramountcy as such was no more as there was no
paramount power and no vassal. The Rulers had lost their
territories and their right to rule and administer them. They
were left only a recognition of their original title, a Privy Purse,
their private properties and a few privileges. These rights were
the only indicia of their former sovereignty but they enjoyed
them by the force of the Constitution although in every
respect they were ordinary citizens and not potentates…….”
33. It is apparent that the rulers were rulers only in name.
They held no land except the personal properties. There were
no subjects. They were Maharajas or Rajas without a Praja;
without any sovereignty; and without any territory.
34. The definition of ruler in clause (22) of Article 366 of
the Constitution itself shows that the person who is defined as
ruler is a former prince, chief or other person, who was, on or
after 26.01.1950 recognised as a ruler having signed the
covenant of accession. Necessarily, the ruler was a person who
was recognised before independence by the British Crown and
was the sovereign of his State. Such person, though defined as
a ‘Ruler’, has no territory and exercises no sovereignty over any
31
subjects. He has no attributes of a potentate nor does he enjoy
all the powers and privileges which are normally exercised by a
potentate. As Justice Shah in the Princes Privy Purses case
judgment held, “he is a citizen of India with certain privileges
accorded to him because he or his predecessor had surrendered
his territory, his powers and his sovereignty”.
35. The President while exercising his powers under Article
366 (22) could not notify a ruler at his whims and fancy. As
held in the Princes Privy Purses case:
“288…..The choice of a person as a Ruler to succeed another
on his death was certainly not left to the mere caprice of the
President. He had to find out the successor and this he could
do not by applying the ordinary rules of Hindu Law or
Mohamadan Law but by the law and custom attaching to the
Gaddi of a particular State…..”
36. Examples were also given where in cases of disputes,
the same were referred to committees comprising of the Chief
Justices of the States and erstwhile rulers. However, it is clear
that the declaration under clause (22) of Article 366 relates
only to the Gaddi or the rulership and not to the properties
which were declared to be private properties by the ruler.
32
37. It was contended by Mr. Ganguli that there could be
no Gaddi without a property and the properties which were
declared to be the private properties were, in fact, attached to
the Gaddi and the properties would be of the ruler so declared.
We find no force in this submission. These were rulers without
any subjects. These were rulers without any territory. These
were so called rulers enjoying certain privileges and privy
purses. They had been given the choice of declaring certain
properties to be their private properties and these private
properties could not be said to be attached to the Gaddi. When
they were actual sovereigns, their entire State was attached to
the Gaddi and not any particular property. There are no
specific properties which can be attached to the Gaddi. It has
to be the entire ‘State’ or nothing. Since, we have held that
they were rulers only as a matter of courtesy, to protect their
erstwhile titles, the properties which were declared to be their
personal properties had to be treated as their personal
properties and could not be treated as properties attached to
the Gaddi.
33
38. Mr. Chandra has drawn our attention to the Rajpal
Hindi Shabdkosh
7
in which Gaddi has been given various
meanings including small mattress, seat of an exalted person,
title of a ruler. In the Oxford HindiEnglish Dictionary
8
, the
meanings given are cushion, throne, royal seat, etc. Property is
not mentioned as one of the attributes of a Gaddi.
39. A Gaddi or rulership and private property have two
different connotations even in the merger
agreement/instrument of accession. In Article 2 of the
agreement, it is clearly mentioned that Nawab would continue
to enjoy the same personal rights, privileges, immunities and
dignities and other titles which he would have enjoyed prior to
the agreement. Conspicuously, the word ‘property’ or ‘personal
property’ is missing. Article 2 deals only with personal rights,
privileges, dignities, etc. Article 3 deals with privy purse which
would also be a part of the rulership or Gaddi. Article 6 which
deals with succession, guarantees the succession according to
law and custom to the Gaddi of the State and to the Nawab’s
personal rights, privileges, immunities, dignities and title.
7 Rajpal Hindi Shabdkosh, Dr. Hardev Bahri, Rajpal & Sons, Pg.206 (2018)
8 Oxford HindiEnglish Dictionary, Edited by R.S. McGregor, Oxford University Press,
Pg.254 (2018)
34
Gaddi would be the ‘throne’ or ‘title’ of Nawab in the context in
which it has been used and the personal rights, privileges,
immunities, dignities and titles will be those referred to in
Article 2. The word ‘property’ is also conspicuously absent in
Article 6.
40. Article 4 states that the Nawab shall be entitled to full
ownership, use and enjoyment of all private properties as
distinct from State properties. Such properties must belong to
him as on the date of agreement. In our view, Article 6 does
not relate to the properties mentioned in Article 4 and the
private properties would remain the private properties of the
Nawab as a common citizen of the country as held in various
authorities referred to above. We have, therefore, no hesitation
in holding that on the death of the ruler, Nawab Raza Ali Khan
in the year 1966, succession to his private properties was
governed by personal laws.
41. Mr. A.K. Ganguli, placed reliance upon the
observations in the case of Raghunathrao Ganpatrao v.
Union of India
9
, hereinafter referred to as ‘the second privy
9 1994 Supp. (1) SCC 191
35
purses case’. In this case, the erstwhile rulers challenged the
26
th
Amendment, 1971 of the Constitution whereby the benefits
given to the rulers, as enshrined in the Constitution in Articles
291 and 362 mentioned hereinabove, were taken away. This
was done after the judgment in the first Princes Privy Purses
case wherein it was held that the guarantees, given to the
erstwhile rulers having been embodied in the Constitution,
could not be taken away by executive fiat. Thereafter, the
Parliament amended the Constitution and it was in this context
that the following observations were made:
“74. The agreements entered into by the Rulers of the States
with the Government of India were simple documents relating
to the accession and the integration and the “assurances and
guarantees” given under those documents were only for the
fixation of the privy purses and the recognition of the
privileges. The guarantees and the assurances given under the
Constitution were independent of those documents. After the
advent of the Constitution, the Rulers enjoyed their right to
privy purses, private properties and privileges only by the
force of the Constitution and in other respects they were only
ordinary citizens of India like any other citizen; of course, this
is an accident of history and with the concurrence of the
Indian people in their Constituent Assembly.
75. Therefore, there cannot be any justification in saying that
the guarantees and assurances given to the Rulers were
sacrosanct and that Articles 291 and 362 reflected only the
terms of the agreements and covenants. In fact as soon as the
Constitution came into force, the Memoranda of Agreements
executed and ratified by the States and Union of States were
embodied in formal agreements under the relevant articles of
the Constitution and no obligation flowed from those
36
Agreements and Covenants but only from the Constitutional
provisions. To say differently, after the introduction of Articles
291 and 362 in the Constitution, the Agreements and
Covenants have no existence at all. The reference to
Covenants and Agreements was casual and subsidiary and
the source of obligation flowed only from the Constitution.
Therefore, the contention urged on the use of the words
‘guaranteed’ or ‘assured’ is without any force and absolutely
untenable.”
42. We are not stricto sensu dealing with this issue
because the succession to the estate of Nawab Raza Ali Khan
opened in the year 1966, prior to the 26
th
Amendment Act.
However, one thing which is clear is that the rulers enjoyed
right to privy purses, private properties and privileges only
because of the Constitution and in other respects they were
ordinary citizens. It was urged that since the rights were
guaranteed under the Constitution, the rule of primogeniture
would apply. We find no force in this contention because, as
already discussed above, in Article 362 reference is made only
to the personal rights, privileges and dignities of the ruler of an
Indian State and, in our view, rights would not include
succession to personal properties.
43. Another argument raised on behalf of the contesting
defendants is that Nawab Raza Ali Khan, knowing that his
succession was governed by the rule of primogeniture, had
37
created a trust named ‘The Raza Trust’ for the welfare of his
family members other than defendant no. 1. He had also
made various other grants and gifts in favour of his children
whereas the elder son was deprived of such benefits. It is
contended that the plaintiff and the other defendants
supporting the plaintiff had taken benefit of the said Trust and
gifts and, therefore, cannot challenge the entitlement of
defendant no. 1. This argument cannot be accepted. We have
only to decide what was the legal entitlement of the legal heirs
and in what manner the succession to the estate of late Nawab
Raza Ali Khan was to be governed. We may also mention that
the Trust, which has been referred to by the contesting
defendants, was created in the year 1944, much before the
Nawab ceded his property to the Dominion of India. At that
time, there was no doubt that succession to the properties of
the State of Rampur would be governed by the rule of
primogeniture. Even after Nawab ceased to be the ruler, he
gifted a number of extensive properties to the defendant no. 1
during his lifetime including a property known as Rafat Club in
Rampur, which the defendant no. 1 sold to the State of U.P. in
1961. The erstwhile Nawab also gifted a property known as
38
Kothi Bareilly and a house in Delhi to defendant no. 1. Both
the Division Bench and the learned Single Judge held that
these properties gifted by the erstwhile Nawab to the defendant
no. 1 were given to him only to maintain his status as the ruler
and, therefore, could not be taken into consideration while
deciding the issue of succession of the erstwhile Nawab of
Rampur.
44. We find a contradiction in the findings of the High
Court in this regard. On the one hand, it is said that the
plaintiff and the other family members cannot urge that the
estate of the Nawab should be governed by personal law
because they have derived benefits from the Raza Trust and
gifts in their life time and, on the other hand, when it comes to
the defendant no. 1, it is said that the gifts were made only
with a view that defendant no. 1 should be able to maintain his
status as the prospective heir. If he was to get all the
properties of the Nawab, then why gifts would have to be made
in his favour in his life time. Therefore, this contention is
rejected.
39
45. There is no dispute between the parties that if personal
law is to apply then the Muslim Personal Law (Shariat)
Application Act, 1937 will apply and since Nawab Raza Ali
Khan was a Shia, his estate will devolve upon his heirs under
the Muslim personal law, as applicable to Shias.
46. During the pendency of the suit the plaint was
amended from time to time because of the death of defendant
no. 1, defendant no.1/1 and defendant no.3. After the
amendment, the shares of all the legal heirs were worked out in
para 9F of the plaint. These shares have not been disputed by
any one nor there is any dispute with regard to the manner in
which the shares have been worked out. Therefore, these
shares are accepted to be correct. The parties shall be entitled
to the property as per the shares set out in para 9F of the
plaint which shall form a part of the decree.
47. In view of the above discussions, we allow the appeals,
set aside the judgments of learned Single Judge and Division
Bench of the High Court of Judicature at Allahabad, and
determine the shares of the properties in terms of Para 9F of
40
the plaint. The appeals are accepted and a decree is passed in
the following terms:
(1) The parties shall be entitled to succeed to the
properties of late Nawab Raza Ali Khan, set out in
Schedules A and B to the plaint, as per personal law
and in the shares set out in para 9F of the amended
plaint.
(2) The first effort shall be to divide the
immovable properties (set out in Schedule A to the
plaint) as per the respective shares, by metes and
bounds and for this purpose the Trial Court may
appoint a Commissioner to assist it.
(3) In case the division of the immovable
properties (set out in Schedule A to the plaint) is not
feasible by metes and bounds the Trial Court shall fix
the owelty money and follow the procedure
prescribed by law so that at the first instance efforts
are made to keep the properties within the family.
(4) To evaluate the value of moveable properties
left behind by Nawab Raza Ali Khan (set out in
Schedule B to the plaint), we direct the Trial Court to
appoint a Commissioner. Properties shall also be
divided as per the shares and if that is not feasible
owelty money will be fixed.
(5) Prayer for decree of mesne profits is rejected
since no evidence has been led in this regard.
41
(6) The defendant no.1/2 and defendant no. 1/3
shall render accounts in respect of the incomes,
profits, usufructs and benefits inherited by them or
enjoyed by deceased defendant no.1 and deceased
defendant no. 1/1. These shall be adjusted while
determining the value of the properties falling to their
shares and also the owelty money.
(7) The Trial Court shall also determine whether
the defendant no.1 (since deceased), defendant
no.1/1 (since deceased), defendant no.1/2 or
defendant no.1/3 have sold or transferred any
movable property or immovable property during the
pendency of these proceedings. The value of such
immovable property or movable property sold or
transferred shall obviously be deducted from the
shares of defendant no.1 /2 and defendant no.1/3.
(8) We direct all the parties to appear before the
District Judge, Rampur on 02.09.2019 and request
the District Judge, Rampur to keep the case on his
docket and proceed further. The District Judge may
first try to impress upon the parties to make the
actual division of the properties by settlement by
mutual agreement since the main dispute with
regard to the rule of succession and the shares has
been determined.
(9) As the suit has been pending for almost half a
century and the parties have been litigating for more
than 5 decades and some of the parties are at an
advanced age, we direct the trial court to dispose of
42
the matter in terms of our directions above at the
earliest but, in any case, not later than 31.12.2020.
48. I.A. No. 3 of 2014 is dismissed. The applicants shall,
however, be at liberty to file a Civil Suit to establish their
rights.
49. No order in the Contempt Petition in view of the
directions issued.
50. All other applications are disposed of. No order as to
costs.
……………………..CJI.
(Ranjan Gogoi)
…………………………J.
(Deepak Gupta)
…………………………J.
(Aniruddha Bose)
New Delhi
July 31, 2019
43
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